Sri Nanjappa vs Sri Nanjundappa
2022 Latest Caselaw 11817 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 14TH DAY OF SEPTEMBER, 2022

                     BEFORE

THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

       WRIT PETITION NO.10958 OF 2022 (GM-CPC)

BETWEEN:
SRI.NANJAPPA
S/O KARIMADAPPA
AGED ABOUT 57 YEARS
RESIDENT OF
GAJAGAHALLI VILLAGE
MANDAKALLI DAKHLE
KASABA HOBLI
MYSURU TALUK
MYSURU DISTRICT - 570026

                                        ...PETITIONER

(BY SRI.R.VIJAYAKUMAR, ADVOCATE
FOR SRI.MARUTHI PRASAD S.A, ADVOCATE)
AND:
SRI. NANJUNDAPPA
REPRESENTED BY HIS GPA HOLDER
SRI.KARIYAPPA
AGED ABOUT 49 YEARS
RESIDENT OF DOORA VILLAGE
JAYAPURA HOBLI
MYSURU TALK
MYSURU DISTRICT - 570008

                                    .....RESPONDENT

(BY SRI.R.D.PANCHAM, ADVOCATE)
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     THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER DATED 18.04.2022 IN MA NO.44/2021
PASSED BY THE LEARNED III ADDITIONAL DISTRICT AND
SESSIONS     JUDGE,   MYSURU     ANNEXURE-F   AND
CONSEQUENTLY RESTORE THE ORDER DATED 28.10.2021
PASSED BY THE LEARNED III ADDITIONAL SENIOR CIVIL
JUDGE AND CJM, MYSURU IN O.S.NO.302/2017 PASSED
ON I.A.NO.13 VIDE ANNEXURE-E AND BY ALLOWING THE
ABOVE WRIT PETITION AND ETC.

     THIS WRIT PETITION HAS BEEN HEARD AND
RESERVED FOR JUDGMENT ON 02.08.2022, COMING ON
FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                        ORDER

The captioned writ petition is filed by the

defendant No.20, who is a pendente lite purchaser,

questioning the order of the Appellate Court in

rejecting the application filed in I.A.No.13 under Order

39 Rule 1 & 2 of CPC by the present petitioner herein.

2. The respondent - plaintiff has instituted a suit

seeking relief of declaration to declare that he is the

absolute owner in possession of the suit schedule

property and for consequential relief of permanent

injunction against defendant Nos.1 to 7. The

respondent - plaintiff claims that suit schedule

property originally was an ancestral property and in a

family partition, 3 acres 14 guntas was allotted to the

share of one Mahadevappa and remaining 2 acres was

allotted to the plaintiff herein. Plaintiff further

contended that during lifetime of Mahadevappa, he

along with his son Shivanna alienated the property

measuring 3 acres 14 guntas in favour of plaintiff

through a registered sale deed dated 08.09.1990.

3. The present suit is filed by alleging that

defendant Nos.1 to 7 are asserting right over 2 acres

of land in the above said survey number i.e.,

Sy. No.42/2 and therefore, the present suit is filed by

contending that plaintiff has acquired valid right and

title pursuant to a family partition, wherein 2 acres

was allotted to the share of plaintiff and therefore,

plaintiff claims that he is the absolute owner and in

possession.

4. Pending suit, plaintiff filed an application

seeking an interim injunction against defendant Nos.1

to 7 from alienating the suit schedule property,

however, in violation of interim granted by the Trial

Court, the defendant Nos.1 to 7 have ventured into

alienating the suit schedule property in favour of the

present petitioner under registered sale deed dated

13.11.2018.

5. The present petitioner, who is arrayed as

defendant No.20, was permitted to come on record.

Petitioner filed an application in I.A.No.13 seeking

interim injunction. The said application was strongly

resisted by the plaintiff by filing detailed objections.

The Trial Court has granted injunction. While granting

injunction, the Trial Court was of the view that the

sale deed along with mutation entry clearly discloses

that present petitioner - defendant No.20 has

acquired title over the suit schedule property and his

name is found in the revenue records. Therefore,

placing reliance on these documents i.e., registered

sale deed dated 13.11.2018 and consequent mutation

in favour of defendant No.20, the Trial Court was of

the view that defendant No.20 has placed prima-facie

materials indicating that he is in possession of the suit

schedule property. The Trial Court was also of the

view that balance of convenience lies in favour of

defendant No.20 and hardship would be caused to

defendant No.20, if interim injunction is not granted.

6. Feeling aggrieved by the interim injunction

granted by the Trial Court, plaintiff preferred an

appeal in miscellaneous appeal No.44/2021. The

Appellate Court has reversed the findings of the Trial

Court. The Appellate Court was also of the view that

defendant No.20 cannot seek injunction in the present

suit and his remedy is to file a separate suit and

therefore, on this ground, the order under challenge

was reversed and consequently, the application filed

by the present petitioner in I.A.No.13 was rejected.

The said order is under challenge.

7. Learned counsel appearing for the petitioner

reiterating the grounds urged in the writ petition

would vehemently argue and contend that the prima-

facie materials placed on record by the petitioners

clearly indicate that he is in possession. Therefore,

contended that the application filed in I.A.No.13 was

very much maintainable and petitioner being a

bonafide purchaser is entitled to protect his

possession. He would contend that the Trial Court has

not only exercised the power conferred under the

provisions under Order 39 Rule 1 and 2 of CPC but

also inherent jurisdiction under Section 151 of CPC.

He would further contend that the defendant can also

maintain an application and seek interim injunction.

He has also placed reliance on the judgment rendered

by this Court in the case of RAMAIAH VS.

GOWDAPPA reported in ILR 1989 KAR 962.

Learned counsel has also placed reliance on judgment

rendered by the Hon'ble Apex Court in the case of

MANOHAR LAL CHOPRA VS. RAI BAHADUR RAO

RAJA SETH HIRALAL reported in AIR 1962

SUPREME COURT 527. Referring to these two

judgments, learned counsel appearing for the

petitioner would vehemently argue and contend that

the impugned order passed by the Appellate Court is

erroneous and contrary to the principles laid down by

the Hon'ble Apex Court and by this Court in the

judgments cited supra.

8. Per contra, learned counsel appearing for the

caveator - respondent would however counter the

claim made by the present petitioner herein. Learned

counsel appearing for the respondent - plaintiff would

bring to the notice of this Court that the plaintiff has

instituted a suit seeking relief of declaration and for

consequential relief of injunction. He would also bring

to the notice of this Court that defendant Nos.1 to 7

were restrained from alienating the suit schedule

property and there was an interim injunction

operating against defendant Nos.1 to 7, who are

vendors of the present petitioner herein. He would

further bring to the notice of this Court that this

alienation is in gross violation of the interim order and

separate proceedings are pending. Therefore, he

would submit to this Court that the present petitioner

who is a pendente lite purchaser cannot maintain an

application and seek injunction against the plaintiff.

These aspects are rightly dealt by the Appellate Court.

Therefore, the order of the Trial Court being perverse

was rightly set-aside by the Appellate Court and

therefore, would not warrant any interference at the

hands of this Court.

9. Heard the learned counsel appearing for the

petitioner - defendant No.20 and learned counsel

appearing for the respondent - plaintiff. Perused the

materials placed on record.

10. Plaintiff is seeking relief of declaration and

for injunction. Plaintiff asserts that the suit schedule

property was allotted to his share in a family partition

and therefore, claims absolute ownership and

possession. The materials on record also indicates

that the plaintiff had a benefit of an interim injunction

and thereby, defendant Nos.1 to 7 are restrained from

alienating the suit schedule property. Defendant

Nos.1 to 7 in violation of interim order could not have

alienated the suit schedule property in favour of the

petitioner. It is not in dispute that present petitioner

is a pendente lite purchaser. A pendente lite

purchaser is bound by the decree that would be

passed in the present suit. The present petitioner is

not only a pendente lite purchaser but has purchased

the property in violation of interim order granted by a

competent civil court. The Trial Court has proceeded

to grant interim injunction by placing reliance on a

registered sale deed and consequent mutation. If a

pendente lite purchaser has no independent say in a

pending suit and also cannot come on record by way

of right and only subject to the leave of the Court, he

is entitled to come on record, but he cannot insist

adjudication of his right under the sale deed, which is

pending lis. If petitioner cannot seek adjudication of

his sale deed which is pending lis, this Court is unable

to understand as to how the Trial Court could have

entertained an application filed by a pendente lite

purchaser seeking interim injunction.

11. Be that as it may, even on perusal of the

records, pendente lite purchaser has not

demonstrated as to whether his vendors were in

lawful possession as on the date of the alienation.

Except registered sale deed and mutation, no

documents are produced. Therefore, it is in this

background, this Court would find that the Trial Court

erred in placing reliance on a registered sale deed,

which was executed by defendant Nos.1 to 7 in gross

violation of interim order granted by the Trial Court

restraining defendant Nos.1 to 7 from alienating the

suit schedule property.

12. Grant of interim injunction is an equitable

order and it is a discretionary relief. Even otherwise a

pendente lite purchaser cannot claim any equity. In a

pending suit, based on an alienation by the

defendants, cannot assert his possession over the suit

schedule property. Therefore, Trial Court erred in

granting interim injunction. Having taken note of the

fact that the sale deed was executed in gross violation

of the interim order, I do not find any perversity in the

order passed by the Appellate Court. Therefore, the

judgments cited by the Appellate Court are not

applicable to the present facts and circumstances of

the case on hand.

The Writ petition is devoid of merits and

accordingly, stands dismissed.

Sd/-

JUDGE

NBM