Sri. H. B. Santhosh Kumar Jain vs Smt. K. Nirmala
2023 Latest Caselaw 5538 Kant

                             1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 11TH DAY OF AUGUST, 2023

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                M.F.A. NO.2855/2023 (CPC)

BETWEEN:

1.     SRI H.B.SANTHOSH KUMAR JAIN
       S/O. H. BAHUBALI,
       AGED ABOUT 58 YEARS,

2.     SMT. CHAYA SANTOSH KUMAR H,
       W/O. H.B. SANTOSH KUMAR JAIN,
       AGED ABOUT 54 YEARS,

       BOTH ARE R/AT NO.72/15,
       4TH CROSS, AJADANAGAR,
       CHAMARAJPETE,
       BENGALURU-560 018.                   ... APPELLANTS

     (BY SRI SATHISH DODDAMANI, SENIOR COUNSEL A/W.
                 MS.SUCHITHRA, ADVOCATE)

AND:

1.     SMT. K. NIRMALA
       W/O. K. RAGHAVA RAO,
       AGED ABOUT 52 YEARS,
       RESIDING AT NO.4321,
       VBHBCS LAYOUT,
       4TH PHASE, GIRINAGAR,
       BANASHANKARI 3RD STAGE,
       BENGALURU-560 085.
                                  2



2.   MR. ASHOK KUMAR
     S/O. K.RAGHAVA RAO,
     AGED ABOUT 30 YEARS,
     RESIDING AT NO.4321,
     VBHBCS LAYOUT,
     4TH PHASE, GIRINAGAR,
     BANASHANKARI 3RD STAGE,
     BENGALURU-560 085.                          ... RESPONDENTS

     (BY SRI R. HEMANTHRAJ, ADVOCATE FOR C/R1 & R2)

      THIS M.F.A. IS FILED U/O. 43, RULE 1(r) R/W. SECTION
151 OF CPC, AGAINST THE ORDER DATED 30.03.2023 PASSED
ON I.A. IN O.S.NO.7417/2022 ON THE FILE OF THE XXIV
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
CITY, CCH-6, REJECTING THE I.A. FILED UNDER ORDER 39 RULE
1 AND 2 OF CPC.

    THIS M.F.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT   ON    27.07.2023 THIS  DAY, THE   COURT
PRONOUNCED THE FOLLOWING:

                       JUDGMENT

Heard the learned counsel for the appellants and learned

counsel for the respondents.

2. This appeal is filed by the appellants-plaintiffs

challenging the order of rejection on I.A.No.1 filed under Order

39, Rule 1 and 2 read with Section 151 of CPC seeking to grant

an order of temporary injunction restraining the respondents-

defendants from interfering with the peaceful possession and

enjoyment of the suit schedule property by the plaintiffs.

3. The factual matrix of the case of the appellants-

plaintiffs before the Trial Court in the suit while seeking the relief

of permanent injunction is that the plaintiffs are the absolute

owners, who are in peaceful possession and enjoyment of the

property i.e., vacant sites having common boundary bearing

Nos.3652/238/1/02 and 03 in Ward No.160, which is suit

schedule property and purchased the same from their vendor by

name Sri H. Lankappa, S/o. late Hanumanthappa, under

registered sale deed dated 02.06.2022 and their names are

reflected in encumbrance certificate. On the date of sale deed

itself, their vendor has put them in possession of the suit

schedule property and he has originally purchased 2 acres, 30

guntas of land in Sy.No.238 of Halagevaderahalli Village from

H. Hanumanthappa, H. Raju, H. Gajendra and H. Narayana i.e.,

the sons of late Hanumanthappa under registered sale deed

dated 22.07.1988 and thereafter, the daughters of

Hanumanthappa had filed F.D.P.No.4/2004 before this Court. As

per final decree order of F.D.P.No.4/2004, 1 acre, 13 guntas had

fallen to the share of daughters of Hanumanthappa which

became re-survey No.238/2 and remaining 1 acre, 13 guntas

had continued in the name of their vendor in respect of land

bearing Sy.No.238/1.

4. It is contended that revenue documents are standing

in the name of the vendors of the plaintiff in respect of land

bearing Sy.No.238/1 of Halagevaderahalli Village. The vendor of

plaintiffs was in lawful possession and enjoyment of said land.

Subsequently, vendor of the plaintiffs got converted Sy.No.238/1

measuring 1 acre, 13 guntas from agriculture to non-agriculture

as per the order of the Deputy Commissioner, Bengaluru Urban

District dated 03.09.2022. After converting land bearing

Sy.No.238/1 from agriculture to non-agriculture, the vendor of

the plaintiffs has formed sites in the said land. Suit schedule site

is also one of the site so formed in the said land and BBMP has

effected katha of the suit site in the name of the vendor of the

plaintiffs. Till execution of the sale deed, the name of vendor of

plaintiffs was appearing in BBMP records and the vendor of the

plaintiffs was paying tax. It is contended that, on the basis of

the sale deed of the plaintiffs, the BBMP has transferred katha of

suit property in the names of the plaintiffs and they have paid up

to date tax in respect of the suit property. It is contended that

defendants are highly influential persons having political

background with money and muscle power and the defendants

are not having any manner of right, title or interest over the suit

schedule property of the plaintiffs. The defendants, who are

strangers to the suit property tried to interfere with the

possession of the plaintiffs on 16.11.2022 when they started

construction, after obtaining the plan. Hence, filed the suit

seeking the relief of permanent injunction.

5. The plaintiffs also sought interim relief of temporary

injunction against the respondents herein praying the Court to

restrain the defendants in interfering with construction work

undertaken by them by filing an application reiterating the

averments of the plaint. The same is resisted by filing written

statements and also statement of objections, wherein it is

specifically contended that the defendants, who are mother and

son claimed that they are the absolute owners of site No.384

formed in portion of Sy.No.238 of Halagevaderahalli, Kengeri

Hobli and originally, the property belongs to Vishwabharathi

House Building Co-operative Society Limited which had formed

the sites and sold the sites to vendor of defendant No.1 under

sale deed dated 30.07.1997. The possession was delivered to

the defendant No.1 and katha was transferred in his name. Due

to family necessity, the vendor of defendant No.1 has sold the

property through G.P.A. holder i.e., to their brother

Krishnasharma on 30.05.2016, likewise defendant No.2 is owner

of site bearing No.385 formed in various sites which includes

Sy.No.238 through his vendor. The property came within the

jurisdiction of Rajarajeshwari Nagar Municipality on 30.05.2016

and temporarily, they have put shed on 'B' schedule property

and in order to put shed in the 'B' schedule property in the

month of September, 2022, the foundation was laid and the

plaintiff No.1 informed that his vendor has won the case against

Vishwabarathi House Building Co-operative Society Limited in

the year 2022 and he and his wife have purchased the property

and warned not to construct and directed to get confirmation

deed registered from him. When the defendant No.2 refused to

meet the illegal demands, the rowdy elements were resorted to.

Hence, without any other alternative, caveat petition is filed.

The defendants contend that the suit schedule property of the

plaintiffs and one claimed by the defendants are not one and the

same and they are situated at different boundaries. The

plaintiffs are claiming the property which is not in existence and

based on the forged and concocted documents claiming the relief

and prayed the Court to reject the same.

6. The Trial Court, having considered the pleadings of

both the plaintiffs and the defendants, comes to the conclusion

that suit is filed for the relief of bare injunction. The plaintiffs

claim to be the owner of site Nos.2 and 3 in Sy.No.238/1 and the

claim of the defendants is with respect to site Nos.384 and 385

formed in various survey numbers, which includes Sy.No.238.

The Trial Court, taken note of the fact that the plaintiffs claim

that they have purchased the property on 02.06.2022 and they

themselves have pleaded that land is converted on 30.09.2022

after three months of purchase. Having taken note of the fact

that pleading itself shows that on the date of purchase it was an

agricultural land and not converted, the Trial Court observed that

there was no identification of site Nos.2 and 3 and without

conversion, how site was formed is not forthcoming from the

plaint and other documents.

7. The Trial Court observed that the learned counsel for

the defendants brought to notice of the Court that approved plan

and other documents do not disclose any address and it is

blanket order. While seeking the relief of permanent injunction,

there must be an identity of the property and the very identity of

the property is doubtful and the plaintiffs claim that they have

proved the identification of the property. Hence, the Trial Court

comes to the conclusion that the plaintiffs have not made out

any prima facie case and balance of convenience in their favour.

It is also observed that the plaintiffs were supposed to plead how

many sites are formed in said 1 acre, 13 guntas and how their

vendors have formed the layout and nothing has been stated as

to the number of sites formed and the plaintiffs, prima facie to

establish their case would have stated as to the adjacent sites

whether they are sold or not and no pleadings to that effect.

Hence, comes to the conclusion that the very identity of the

property is disputed and therefore, they are not entitled for the

relief of temporary injunction. Being aggrieved by this finding,

the present appeal is filed before this Court.

8. Learned counsel for the appellants-plaintiffs in his

argument, reiterated the averments of the plaint regarding title

to the property of the appellants and contend that originally the

property belongs to Hanumanthappa, S/o. Galappa, who was

also confirmed as the tenant of the agricultural land property

vide order of the Special Deputy Commissioner dated

30.01.1964. The said Hanumanthappa was in peaceful

possession and enjoyment of the agricultural land bearing

Sy.No.238 measuring an extent of 2 acres, 30 guntas at

Halagevaderahalli Village, Kengeri Hobli, Bengalur South Taluk.

It is contended that the claim of the defendants that

Vishwabharathi House Building Co-operative Society Limited

approached the Government requesting to acquire the lands at

Halagevaderahalli Village for the benefit of the members of the

society and the Government, vide preliminary notification dated

18.10.1988 acquired the same and while issuing the notification

also, name of H. Lankappa is shown by the Government.

However, the Land Acquisition Officer has shown the name of

Sri B. Krishna Bhat. Subsequently, the Society filed a writ

petition before this Court in W.P.No.18584/1989 against the

Government and this Court quashed the preliminary notification

and directed the Government to refund the amount deposited by

the said Society. Against the said order, writ appeal was filed in

W.A.No.8766/1996 and the same was also dismissed.

9. It is also contended by the learned counsel for the

appellants-plaintiffs that society has executed an indemnity bond

in favour of the Government and Special Land Acquisition

Officer, by an Official Memorandum dated 16.07.1998 has

ordered to refund the amount deposited by the Society. The

Land Acquisition Officer has not taken possession of the land, no

award is passed and no final notification under Section 6(1) of

the Land Acquisition Act is issued and the planning authority has

not approved and sanctioned the layout plan. The counsel also

would vehemently contend that this aspect has not been

considered by the Trial Court while passing the interim order and

the order passed by the Trial Court in coming to the conclusion

that property has not been identified is erroneous. The learned

counsel also in his argument would vehemently contend that this

Court earlier in M.F.A.No.8555/2022 dated 13.03.2023

remanded the matter to the Trial Court making an observation in

the judgment that the impugned order passed by the Trial Court

is cryptic, unreasoned and non-speaking and the Trial Court

failed to consider and appreciate that there was dispute

regarding location and identity of the plaint schedule property

claimed by the appellants and the written statement schedule 'A'

and 'B' properties claimed by the respondents and not

considered the principles of temporary injunction and remanded

the same. Inspite of remand also, the Trial Court committed

error in not considering the grounds which have been urged by

the appellants before the Trial Court.

10. The counsel also, in support of his argument, relied

upon the copy of the preliminary notification, copy of the

indemnity bond, copy of the order passed in

W.P.No.18584/1989, copy of the judgment passed in

W.A.No.8766/1996, copy of the Official Memorandum dated

16.07.1998. The counsel also brought to notice of this Court

paper publication and sale deed dated 22.07.1988 in favour of H.

Lankappa, khatha extract of H. Lankappa, copy of the sale deed

and copy of the khatha extract in favour of the appellants, tax

paid receipts, copy of the payment receipt to BBMP, copy of the

building license and plan, copy of the order passed in

R.F.A.No.1351/2009 C/w. R.F.A.No.46/2010 and photographs to

show that work was undertaken by the appellants.

11. Per contra, learned counsel for the respondents, in

his argument would vehemently contend that the Trial Court

rightly comes to the conclusion that the very identification of the

property is not made out by the plaintiffs and according to the

plaintiffs, the property was purchased in the year 2022 and the

same was standing in the name of the vendor of the plaintiffs

and the documents which have been relied upon by the plaintiffs

dated 31.05.2022 disclose that the owner name as appellants

and how could the names of plaintiffs be found on 31.05.2022

and it is the claim of the plaintiffs that they had purchased the

same in the month of June, 2022. The counsel also would

vehemently contend that, according to the pleadings of the

plaintiffs, it was an agricultural land and property was converted

on 03.09.2022 i.e., subsequent to the purchase and how a

vendor can convert the property and form the sites, though the

plaintiffs contend that plan was approved and no details of

property in the said approved plan and the learned counsel for

the respondents also produced the sale deeds of other sites

which have been sold by the Society to the other purchasers. It

is also contended that though the sale deed also clearly discloses

the boundary of the defendants in respect of site Nos.384 and

385 and in the adjacent site, building is constructed,

photographs produced before the Court depicts that site number

as 383. Hence, it is clear that the same is the property which

belongs to the defendants. The counsel also would vehemently

contend that the documents have been created and concocted

and based on the concocted documents and without any

identification of the property, the plaintiffs have approached this

Court.

12. In reply to the arguments of the learned counsel for

the respondents-defendants, learned counsel for the appellants-

defendants would vehemently contend that the plaintiffs also

made out the case for granting an order of injunction and the

same has not been considered by the Trial Court. The learned

counsel for the appellants has also filed additional documents

i.e., copy of the sale deed in favour of H. Lankappa dated

22.07.1988, mutation register in M.R.No.03/1998, RTC records

in Sy.No.238, copy of the layout plan, copy of the 4(1)

notification dated 18.10.1988, copy of the order passed in

W.P.No.18584/1989, copy of the judgment passed in

W.A.No.8766/1996, copy of the Official Memorandum dated

16.07.1998, copy of the indemnity bond executed by B. Krishna

Bhat, copy of the paper publication, copy of the order passed in

O.S.No.5691/1998, copy of the order passed in F.D.P.

No.4/2004 along with survey sketch, copy of the pahani in

Sy.No.238, copy of the tax paid receipt and mutation register,

copy of Akarband, copy of the order passed in O.S.No.925/2008,

copy of the judgment passed in M.F.A.No.3918/1999 C/w.

M.F.A.No.5160/1999,            copy        of           the       judgment

passed       in      M.F.A.No.1953/1996,        copy     of     the   order

passed       in     C.P.No.537/1999,      copy     of     the     judgment

passed       in    M.F.A.No.7579/2012     C/w.     M.F.A.No.7580/2012,

copy         of      the    judgment       in      M.F.A.No.5229/2020

C/w.     M.F.A.No.374/2021,        copy     of     the        judgment   in

M.F.A.No.1340/2021 C/w. M.F.A.No.1345/2021 and copy of the

judgment in M.F.A.No.1347/2021 C/w. M.F.A.No.1448/2021,

M.F.A.No.1473/2021 C/w. M.F.A.No.1476/2021.

13. Learned counsel for the appellants relying upon

these documents would vehemently contend that when the

property is identified and title is also traced, the Trial Court

ought not to have rejected the application. The counsel also in

his argument vehemently contend that the voluminous

documents which have been produced before the Court clearly

discloses that the plaintiffs are having title and property is also

identified and the writ petition and the writ appeal filed by the

Society itself were dismissed. The counsel also would

vehemently contend that the documents produced before the

Court clearly disclose prima facie case in favour of the

appellants-plaintiffs. The counsel also would submit that the

appellants will not claim any equity, if the construction work

undertaken by the appellants is completed and occupied, if the

respondents succeed in the suit. Hence, injunction has to be

granted.

14. In reply to the additional documents and contentions

raised by the learned counsel for the appellants, learned counsel

for the respondents would vehemently contend that, when the

plaintiffs themselves claim that property was converted on

03.09.2022 and only based on the forged documents which have

been brought before the Court, the plaintiffs are seeking the

relief of injunction. The counsel also in his written statement

has stated that the documents which have been produced by the

plaintiffs are contradictory to each other.

15. The counsel, in support of his argument, relied upon

the judgment of this Court in SRI S. SRINIVASA VS. SMT.

SARASWATHI passed in M.F.A.NO.1621/2020 dated

08.09.2020 and brought to notice of this Court Para No.4,

wherein an observation is made that, in the absence of

identification of the suit property, the question of granting any

injunction does not arise.

16. The counsel also brought to notice of this Court the

judgment of this Court in K. GOPALA REDDY (DECEASED) BY

LRS. VS. SURYANARAYANA AND OTHERS reported in 2004

(1) KCCR 662 and brought to notice of this Court Para No.15,

wherein an observation is made that, when the plaintiff fails to

establish the identity of the property, the question of granting

injunction in favour of the plaintiff does not arise.

17. The counsel also relied upon the judgment of the

Apex Court in ANATHULA SUDHAKAR VS. P. BUCHI REDDY

(DEAD) BY LRS. AND OTHERS reported in (2008) 4 SCC 594

and brought to notice of this Court Para Nos.13.2, 13.3, 15, 16

and 21, wherein an observation is made that, it is settled

proposition of law that when the title of the plaintiff is under

cloud or in dispute and he is not in possession and not able to

establish possession, the plaintiff will have to file suit for

declaration and mere suit for injunction is not enough.

18. The counsel also relied upon the judgment of the

Apex Court in T.V. RAMAKRISHNA REDDY V. M. MALLAPPA

AND ANR. reported in AIR 2021 SC 4293 and brought to

notice of this Court Para Nos.10, 11, 18, 20 and 21, wherein it is

held that issue regarding title can be decided only after full-

fledged trial on the basis of the evidence led by parties in

support of their rival claims and suit simpliciter for permanent

injunction filed by the plaintiff without seeking declaration of

title, is not maintainable. The counsel relying upon this

judgment would contend that the conversion is subsequent to

purchase of the property and building license is obtained on

28.06.2022. The counsel also would contend that BBMP Act,

2020 came into force on 11.01.2021 and as per Sections 240

and 242 of the said Act, the Zonal Commissioner is competent

authority to issue building license. The alleged building plan is

obtained by the plaintiffs under Karnataka Municipal Corporation

Act and the same cannot be considered and the sanctioned plan

is obtained without mentioning the site number, cross and main

road and the document of payment of receipt is also created and

no prima facie case is made out by the plaintiffs and the Trial

Court has not committed any error.

19. Having heard the learned counsel for the appellants

and learned counsel for the respondents and also considering the

voluminous documents placed before this Court by the

appellants and also the contentions of the respective parties, the

points that would arise for consideration of this Court are:

(1) Whether the Trial Court committed an error in rejecting the application filed under Order 39, Rule 1 and 2 read with Section 151 of CPC?

      (2)    What order?


Point No.(1)

20. Having heard the respective counsel and also on

perusal of the material available on record, it is not in dispute

that earlier the Trial Court rejected the application filed under

Order 39, Rule 1 and 2 read with Section 151 of CPC and the

same was challenged before this Court and this Court remanded

the matter in M.F.A.No.8555/2022 in coming to the conclusion

that the order is very cryptic, unreasoned and non-speaking and

also observed that the Trial Court failed to consider and

appreciate that there was a dispute regarding location and

identity of the plaint schedule property claimed by the appellants

and the written statement schedule 'A' and 'B' properties claimed

by the respondents.

      21.   Having    perused   the   impugned   order   which   is

challenged before this Court, the       Trial Court rejects the

application filed by the appellants-plaintiffs keeping in view the

contentions urged by both the appellants and the respondents

that the plaintiffs claim to be the owner of site Nos.2 and 3 in

Sy.No.238/1 and the claim of the defendants is with respect to

site Nos.384 and 385 formed in various survey numbers which

include Sy.No.238. No doubt, the learned counsel for the

appellants brought to notice of this Court the order passed by

this Court in writ petition and also the judgment in writ appeal,

wherein the direction was issued to the Government to refund

the amount deposited by the Society, the respondents claim that

site was allotted by the Society. Learned counsel for the

respondents also brought to notice of this Court the sale deed

executed by the Society in favour of other neighbouring owners

and the said document discloses the boundaries in the sale deed

dated 10.01.1994 executed in favour of N. Kodandaram and in

the said schedule in respect of site No.383, on the east, there is

site No.382 and on the west, there is site No.384 i.e., the site

which the defendants are claiming.

22. It is also important to note that, another sale deed

was executed on 17.02.1994 in favour of K.V. Ramachandra

Holla in respect of site No.346 and on the southern side, there is

site No.385 which the defendants are claiming. The counsel for

the respondents also relied upon the registered sale deed dated

22.12.1994 executed in favour of Vasudevachar in respect of site

No.347, wherein also, on the southern side, site No.384 is shown

and the sites which are claimed by the respondents-defendants

are site Nos.384 and 385 and in order to identify the said

properties, the respondents have relied upon these documents.

Apart from these documents, the respondents also produced the

photographs which shows that the plaintiffs have undertaken the

construction and a house is constructed by the side of the said

site, wherein site number is mentioned as 383.

23. It is also important to note that the appellants claim

that layout was formed by the vendor of the plaintiffs and also

produced the documents, wherein sites are formed and site

Nos.2 and 3 are also mentioned, the same is in respect of

Sy.No.238, wherein total extent is mentioned as 2 acres, 30

guntas. But, it is the claim of the plaintiffs that, after the order

passed in F.D.P.No.4/2004, the remained land is only 1 acre, 13

guntas and this layout plan according to the plaintiffs was

approved long back in the year 1993 having perused the seal

and the plan now obtained from the BBMP is disputed by the

respondents that the same is not issued by the competent

authority and the same is issued under the Karnataka Municipal

Corporation Act and the BBMP Act, 2020 came into effect in the

year 2021 itself. Admittedly, the plan was obtained subsequently

in the year 2022 and the fact that property comes within the

BBMP limit is not in dispute. Apart from that, as per the

pleadings, the property was an agricultural land at the time of

purchase of the property by the appellants and subsequently, it

was converted, as contended by the appellants on 03.09.2022.

Hence, it is clear that, as on the date of purchase, the property

was not converted and no other documents are produced with

regard to the identification of the property by the plaintiffs,

except showing the site Nos.2 and 3 in the sale deed.

24. Having perused the description of the schedule in the

sale deed dated 02.06.2022, it is mentioned as site Nos.2 and 3.

But, property comes within the purview of present BBMP and the

photographs also clearly disclose that a layout is formed and in

the surrounding areas, the buildings have come up and though it

is contended that sites are formed in Sy.No.238/1 in 2 acres, 13

guntas and property came to the vendors, they formed sites in

Sy.No.238/1 in 1 acre, 15 guntas, including 2 guntas of karab.

But, at the time of formation of sites also, there was no any

approved plan by the competent authority and pleaded that the

vendor had formed the sites after conversion. However, now the

plaintiffs claim that the property is converted after purchase.

When such being the case, the very identification of the property

as contended by the learned counsel for the respondents is

disputed and the same is also observed by the Trial Court, while

passing an order that there are rival claims in respect of the very

same property and the respondents claim site Nos.384 and 385

and the plaintiffs claim site Nos.2 and 3 in Sy.No.238/1.

25. Admittedly, according to the plaintiffs, the land is

converted on 03.09.2022 and plan is obtained on 28.06.2022

and within a span of 26 days of purchase, plan is obtained.

Apart from that, it is clear that it was an agricultural land and

the same was not converted, even considering the averments of

the plaint and no identification of site Nos.2 and 3 and no other

sale deeds are produced before the Court with regard to the

identity of the suit schedule property, if it is carved site in the

said survey number. Hence, the Trial Court rightly comes to the

conclusion that the very pleadings of the plaintiffs itself is self-

explanatory as to non-existence of sites on the date of the sale

deed and existence and identification of the property of the

plaintiffs itself is doubtful.

26. No doubt, the appellants also relied upon the

judgment passed in M.F.A.No.870/2023 dated 03.03.2023

that the plaintiffs will not claim any equity and this Court also

no doubt passed an order not to claim any equity, an

observation is also made that construction being put up by the

respondents-defendants is nearing completion as on today. But,

that is not the situation in the present case and the construction

work is still at the foundation level. When such being the case,

the very contention of the plaintiffs that they will not claim any

equity cannot be accepted and there is a clear dispute and cloud

on the title as observed by the Apex Court in ANATHULA

SUDHAKAR's case.

27. Learned counsel for the respondents also relied upon

the judgment passed in M.F.A.No.1621/2020 dated

08.09.2020, wherein also this Court has observed that, in the

absence of identification of the suit property, unless the trial is

completed and when the plaintiff has failed to establish the

identity of the property, the question of granting any injunction

does not arise. The other judgment of this Court referred

(supra) in K. GOPAL REDDY's case is also very clear that the

person, who approaches the Court has to make out a case for

granting an order of injunction and should not depend on the

weakness of the defendants which cannot be considered as a

trump card for the plaintiff. The other judgment of the Apex

Court in T.V. RAMAKRISHNA REDDY's case is also clear with

regard to the maintainability and genuine dispute raised by the

defendant regarding title of plaintiff over suit property and held

that issue regarding title can be decided only after full-fledged

trial on basis of evidence ld by parties in support of their rival

claims and suit simpliciter for permanent injunction filed by

plaintiff without seeking declaration of title is not maintainable.

28. But, here is a case where the plaintiffs are seeking

the relief of temporary injunction and while granting the relief of

temporary injunction, the plaintiffs have to make out a prima

facie case and balance of convenience for granting an order of

temporary injunction. But, in the case on hand, both the

plaintiffs and the defendants are claiming title in respect of very

same properties and the respondents claim right based on the

sale deed executed by the Society and the plaintiffs claim right

that the property originally belongs to Haumanthappa and the

family members of the plaintiffs have also filed the suit and the

same was decreed and in the final decree proceedings, the

daughters of Hanumanthappa are also given 1 acre, 13 guntas of

land and in the remaining land i.e., 1 acre, 13 guntas, layout is

formed and sites are also sold. In order to identify the said sites

which were sold in favour of the plaintiffs, no sufficient material

is placed before the Court and unless the property is identified,

the question of granting temporary injunction also does not

arise.

29. Having considered the material available on record,

it requires full-fledged trial since, both the plaintiffs and the

defendants claim very same property. Though it is contended by

the defendants that in terms of the claim made by the plaintiffs,

both the properties are distinct and respondents also claim that

their property is situated by the side of site No.383 by producing

the photographs and adjacent to said site No.383, construction

is taken up by the plaintiffs. When such being the case, the

matter requires full-fledged trial. However, when the work is at

the stage of foundation, I am of the opinion that it is not a fit

case to grant an order of temporary injunction and the Trial

Court rightly rejected the application assigning reasons and the

very contention that even after remand also, the Trial Court not

considered the matter cannot be accepted and the Trial Court

while arriving at a conclusion, even taken note of the issue

involved between the parties, particularly with regard to the

identity of the property and though the learned counsel for the

respondents contend that the documents which have been relied

upon by the plaintiffs are created, the same also to be

considered at the time of trial and not at this stage. It is also the

contention of the learned counsel for the appellants that no 6(1)

notification was issued and hence, the defendants claim is also

defective and the same also requires trial and whether Society

has got right to execute the sale deed or not requires full fledged

trial, since very identity of the property is in dispute. Hence, I

do not find any merit in the appeal to reverse the findings of the

Trial Court and grant any temporary injunction. Accordingly, I

answer point No.(1) as 'negative'.

Point No.(2)

30. In view of the discussions made above, I pass the

following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE

ST