Mr K George Prabhu vs Mr G Sudarshan
2023 Latest Caselaw 7672 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 15TH DAY OF NOVEMBER, 2023

                        BEFORE

        THE HON'BLE MR.JUSTICE S.G.PANDIT

       WRIT PETITION No.19095/2023 (GM-CPC)

BETWEEN:

MR. K GEORGE PRABHU
S/O S KULANDAISAMY
AGED ABOUT 40 YEARS
R/AT NO.10, 8TH CROSS
NEAR GANAPATHI TEMPLE
PRASHANTHNAGAR
BENGALURU-560 079.
                                        ...PETITIONER
(BY SRI. UDAY HOLLA, SR. COUNSEL A/W
 SR. M.S. RAJENDRA, ADV.)

AND:

MR. G SUDARSHAN
S/O LATE MR. N CHANNAIAH
AGED ABOUT 64 YEARS
R/AT NO.2850/C, E BLOCK
13TH MAIN, 2ND STAGE
RAJAJINAGAR
BENGALURU-560 010.
                                      ....RESPONDENT
(BY SRI. ASHOK HARANAHALLI, SR.COUNSEL A/W
 SRI J.C. KUMAR, ADV.)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASHING THE
ORDER DATED 03.08.2023 PASSED BY THE COURT OF ADDL.
                             2

SENIOR CIVIL JUDGE AND JMFC NELAMANGALA IN MA
NO.15/2023 (ANNX-T) AND QUASH THE ORDER DATED
19.04.2023 PASSED BY THE COURT OF PRINCIPAL CIVIL
JUDGE AND JMFC NEALAMANGALA IN OS NO.426/2022 ON
IA NO.1 FILED UNDER ORDER 39 RULES 1 AND 2 OF CP
CODE (ANNX-R).

     THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED   ON    10/10/2023   COMING  ON  FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:

                       ORDER

The petitioner, defendant in O.S.No.426/2022 on

the file of the Principal Civil Judge and JMFC, at

Nelamangala (for short, 'Trial Court') is before this Court

under Article 227 of the Constitution of India questioning

order dated 19.04.2023 allowing I.A.No.1 filed under

Order XXXIX Rules 1 and 2 of CPC by

respondent/plaintiff and judgment dated 03.08.2023 in

M.A.No.15/2023 on the file of the Additional Senior Civil

Judge and JFMC, at Nelamangala (for short, 'Appellate

Court') confirming the order passed by the Trial Court.

2. Heard learned senior counsel Sri.Uday Holla for

Sri.M.S.Rajendra, learned counsel for petitioner/defendant

and learned senior counsel Sri.Ashok Haranahalli, for

learned counsel Sri.J.C.Kumar for respondent/plaintiff.

Perused the entire writ petition papers.

3. Brief facts of the case are that, the

respondent/plaintiff filed O.S.No.426/2022 with a prayer

for judgment and decree of permanent injunction in

respect of suit schedule property i.e., land bearing

Sy.No.59/3 measuring 0-05.8 guntas situated at

Kachohalli Village, Dasanapura Hobli, Bengaluru North

Taluk. It is the case of the respondent/plaintiff that one

Sri.A.P.Venkatanarasimhaiah had purchased land in

Sy.No.59 to an extent of 5 acres 6 guntas under

registered sale deed dated 09.10.1964.

Respondent/plaintiff purchased suit schedule property

under registered sale deed dated 14.01.2016 from one

Sri.Boregowda. Petitioner's vendor Sri.Boregowda

acquired suit schedule property under sale deed dated

20.01.2011 from Sri.K.V.Narayanamurthy son of

A.P.Venkatanarasimhaiah and from other family

members of A.P.Venkatanarasimhaiah. It is the case of

the respondent/plaintiff that Khatha stands in his name

and he is in possession and enjoyment of the suit

schedule property, being the absolute owner. Along with

the suit, the respondent/plaintiff also filed I.A.No.1

under Order XXXIX Rules 1 and 2 of CPC praying for

temporary injunction to restrain the petitioner/defendant

from interfering with the plaintiff's peaceful possession

and enjoyment of the suit schedule property.

4. It is the case of the petitioner/defendant

before the Trial Court that the land in question i.e., in

Sy.No.59 was originally belonged to

Sri.A.P.Venkatanarasimhaiah having purchased the

same under registered sale deed dated 09.10.1964. It is

stated that the said Sri.A.P.Venkatanarasimhaiah formed

layout in the said land in the year 1994-95 and sold the

sites to various persons. In respect of site No.12 in

Sy.No.59 measuring 60x100 feet

Sri.A.P.Venkatanarasimhaiah executed registered

General Power of Attorney (for short, 'GPA') dated

10.07.1996 in favour of Smt.Indu Pandith. In turn,

Smt.Indu Pandith sold the site in question under

registered sale deed dated 07.04.2003 to Sri.Hemanth

Pandith. Under sale deed dated 18.04.2006,

Sri.Hemanth Pandith sold the said site in question to one

Sri.Narendra K. Changela. Under GPA dated 29.10.2020

and sale deed dated 27.07.2021 Sri.Narendra K.

Changela sold the site in question to the

petitioner/defendant Sri.K.George Prabhu. It is the case

of the petitioner/defendant that Khatha stands in his

name and he is paying property tax. Further, on

obtaining sanction plan, petitioner/defendant has

commenced construction and also obtained power

connection from BESCOM. The petitioner/defendant had

also filed objection to I.A.No.1 denying

respondent/plaintiff's possession contending that he is in

possession and to support his claim of possession,

produced photographs.

5. The Trial Court on hearing the parties to the

suit allowed I.A.No.1 and restrained the

petitioner/defendant from interfering with the plaintiff's

possession over the suit property till disposal of the suit.

While restraining the petitioner/defendant, the Trial

Court has come to the conclusion that the GPA executed

by Sri.A.P.Venkatanarasimhaiah in favour of Smt.Indu

Pandith is without consideration; no document to show

the conversion of land to form site; and that title deeds

upon which the defendant relies does not reflect the

existence of the building. Thus, Trial Court observed that

the respondent/plaintiff prima-facie is in lawful

possession over the suit schedule property. Aggrieved

by the said order, petitioner/defendant filed

M.A.No.15/2023 and the appeal was dismissed by

judgment dated 03.08.2023. While dismissing the

appeal filed by petitioner/defendant, Appellate Court

observed that prima facie it is the plaintiff who is in

possession over the suit schedule property. Further, the

Appellate Court observed that the Power of Attorney

executed by Sri.A.P.Venkatanarasimhaiah in favour of

Smt.Indu Pandith is not coupled with interest, since

amount is left blank in the affidavit.

6. Learned senior counsel for the

petitioner/defendant would submit that both the Trial

Court as well as the First Appellate Court failed to prima-

facie find out who is in possession over suit schedule

property. Learned senior counsel referring to the GPA

and affidavit executed by Sri.A.P.Venkatanarasimhaiah

in favour of Smt.Indu Pandith would submit that the

GPA is coupled with interest and consideration, hence

the Courts below ought to have held petitioner/

defendant's possession as lawful possession. Learned

senior counsel would further submit that though

Sri.A.P.Venkatanarasimhaiah died on 25.06.2002, prior

to execution of sale deed by Smt.Indu Pandith in favour

of Sri.Hemanth Pandith, since GPA is coupled with

interest and consideration, the power to execute sale

deed would not extinguish and the finding in that regard

by the Appellate Court is perverse.

7. Learned senior counsel would further submit

that father of respondent/plaintiff's vendors' vendor i.e.,

Sri.A.P.Venkatanarasimhaiah formed layout and sold the

sites to various persons and thereafter his son and any

other family members had no right or interest in the

property to sell the same. Learned senior counsel would

also draw attention of this Court to Confirmation Deed

dated 13.04.2023 executed by legal heirs of

Sri.A.P.Venkatanarasimhaiah in favour of the

petitioner/defendant. Learned senior counsel would

further submit that to establish petitioner/defendant's

possession, petitioner/defendant had produced

photographs of building under construction. Moreover,

he submits that the Courts below failed to appreciate the

building license and power connection obtained by

petitioner/defendant to the site in question.

8. Learned senior counsel Sri.Uday Holla places

reliance on the decision on the Hon'ble Apex Court

reported in the case of ANATHULLA SUDHAKAR VS.

P.BUCHI REDDY (DEAD) BY LRS AND OTHERS1 in

support of his contention and submits that possession

follows title. One who is able to establish his title will be

considered to be in possession as against the person

who is not able to establish his title. Thus, learned

senior counsel prays for allowing the writ petition and to

(2008) 4 SCC 594 2 AIR 1974 MADRAS 87

set aside the order passed by the Courts below.

Learned senior counsel Sri.Uday Holla also places

reliance on the decision of Madras High Court in the case

of VADIVEL MUDALIAR AND ANOTHER v/s

PACHIANNA GOUNDER2 to contend that while

considering the application for temporary injunction, it

is the duty of the Court to take into consideration the

affidavits and relevant documents before it records the

finding. He would further submit that it would not mere

referring the same in the judgment, but there must be

some discussion about them.

9. Per contra, learned senior counsel Sri.Ashok

Haranahalli would support the order of the Trial Court as

well as judgment of the Appellate Court confirming the

order of Trial Court. Learned senior counsel would

submit that respondent/plaintiff has made out prima-

facie case and has established lawful possession over

the suit schedule property. Therefore, the Trial Court

rightly allowed I.A.No.1 filed under Order XXXIX Rules 1

and 2 of CPC and restrained the petitioner/defendant

from interfering with respondent/plaintiff's lawful

possession over the suit schedule property. Further, the

learned senior counsel would submit that the GPA

executed by Sri.A.P.Venkatanarasimhaiah on

10.07.1996 to one Smt.Indu Pandith is not coupled with

interest and consideration. Hence, it had lost its sanctity

and extinguished itself on the death of

Sri.A.P.Venkatanarasimhaiah on 25.06.2002 and

subsequent sale deed dated 07.04.2003 executed by

Smt.Indu Pandith based on the GPA is not a valid

transfer and as such, the petitioner/defendant has no

legally valid title over the suit schedule property or site

No.12 in Sy.No.59 as claimed by petitioner/defendant.

Further, it is submitted that respondent/plaintiff is in

possession over the suit schedule property and

petitioner/defendant's claim that he is in possession is

imaginary and opposed to material on record. Learned

senior counsel would submit that suit was filed on

03.11.2022 and the sanction plan from the Panchayath

and power connection said to have been taken by

petitioner/defendant are all subsequent to filing of the

suit. Hence, it would not support the

petitioner/defendant's claim for possession. Thus, it is

prayed for dismissal of the writ petition.

10. Having heard the learned senior counsel for

the parties and on perusal of the writ petition papers,

the only point which falls for consideration is as to,

"Whether the concurrent finding of fact

recorded by Trial Court as well as Appellate

Court requires interference?"

11. The answer to the above point would be in

the negative. The orders under challenge are neither

perverse nor suffers from any material irregularity so as

to warrant interference under Article 227 of the

Constitution of India.

12. The suit is one for permanent injunction. In

a suit for permanent injunction while considering I.A

filed under Order XXXIX Rules 1 and 2 of CPC for

temporary injunction, that too, when the suit schedule

property is a vacant site, it is for the Trial Court to find

out who is in lawful possession of the suit schedule

property and possession is to be determined as on the

date of presenting the plaint or the date of cause of

action stated in the plaint. Admittedly, the plaint was

presented on 03.11.2022. Basic principles to be followed

while considering an application for temporary injunction

are to find out with regard to prima-facie case, balance

of convenience and to find out as to who would suffer

greater hardship or irreparable loss if the injunction is

granted or refused.

13. Who is in lawful possession is a question of

fact to be decided on appreciation of facts pleaded by

the parties. When Trial Court records its findings on

appreciation of basic facts and when First Appellate

Court appreciates the same in exercise of its appellate

jurisdiction, such findings would normally not interfered

by this Court under its supervisory jurisdiction under

Article 227 of the Constitution of India, unless an

exceptional case is made out.

14. There is no dispute and both the plaintiff and

defendant would state that originally the land in

question belonged to Sri.A.P.Venkatanarasimhaiah, he

having purchased the same under sale deed dated

09.10.1964. Petitioner/defendant's initial vendor

Smt.Indu Pandith claims through GPA dated 10.07.1996

executed by Sri.A.P.Venkatanarasimhaiah.

Sri.A.P.Venkatanarasimhaiah died on 25.06.2002.

Subsequent to death of Sri.A.P.Venkatanarasimhaiah,

Smt.Indu Pandith executed sale deed in favour of one

Sri.Hemanth Pandith. It is the submission of learned

senior counsel that said GPA is accompanied by affidavit

dated 16.07.1996 and the same is coupled with interest

and consideration. A perusal of petitioner/defendant's

written statement as well as objections filed to I.A.No.1

before the Trial Court would not mention about the

affidavit said to have been executed by

Sri.A.P.Venkatanarasimhaiah and the petitioner/

defendant has not taken contention that GPA is coupled

with interest and consideration. The

petitioner/defendant has raised contention with regard

to GPA coupled with interest and consideration before

the Appellate Court as well as in this writ petition. A

perusal of affidavit produced before this Court said to

have been executed by Sri.A.P.Venkatanarasimhaiah,

sale consideration column is blank and it would not show

the sale consideration. The Appellate Court is right in

observing that in the affidavit amount is left blank and

for that reason, power of attorney is not coupled with

interest. Therefore, it is a matter for trial and in the trial

it is for the petitioner/defendant to establish that the

GPA executed by Sri.A.P.Venkatanarasimhaiah in favour

of Smt.Indu Pandith was coupled with interest and

consideration.

15. The Hon'ble Apex Court in ANATHULLA

SUDHAKAR case (supra) while deciding the question

what is the scope of a suit for prohibitory injunction

relating to immovable property at paragraphs 16 and 21

has held as follows:

"16. But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in

possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was at issue, the court should not decide the issue of title in a suit for injunction. The proper course is to relegate the plaintiff to the remedy of a full-fledged suit for declaration and consequential reliefs.

21. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:

(a) Where a cloud is raised over the plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with the plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.

(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it

will not be possible to decide the issue of possession.

(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar [Annaimuthu Thevar v. Alagammal, (2005) 6 SCC 202] ). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.

(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the

matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case."

The above decision would state that one who is able to

establish title thereto will be considered to be in

possession, as against the person who is not able to

establish title. Further it is observed that even in a suit

for injunction in respect of a vacant site prima-facie title

is to be examined.

16. The respondent/plaintiff claims title through

registered sale deed dated 14.01.2016 having purchased

from one Sri.Boregowda who had in turn

purchased from Sri.K.V.Narayanamurthy S/o

Sri.A.P.Venkatanarasimhaiah and family members of

Sri.A.P.Venkatanarasimhaiah under registered sale deed

dated 20.01.2011. Possession is to be determined based

on the title. Since the plaintiff claims that it is a vacant

site, prima-facie, plaintiff has established his title over

the suit schedule property and petitioner/defendant has

to establish title during trial by establishing that initial

GPA executed by Sri.A.P.Venkatanarasimhaiah to

Smt.Indu Pandith is coupled with interest and

consideration.

17. It is settled position of law that the trial

Courts and appellate courts while considering the

application for grant of temporary injunction shall look

into the affidavits and relevant documents placed on

record. A perusal of the order granting or refusing

injunction shall indicate consideration of the affidavits

and relevant documents. It should indicate the

application of mind to the affidavits and relevant

documents placed on record, but at the stage of

considering interim application it may not be necessary

to discuss each and every document which is placed on

record. Where hundreds of cases are listed before a

Presiding Officer, that too in a city like Bangalore, it

would be humanly impossible to discuss each and every

document while considering the application for granting

or refusing temporary injunction. If the finding is based

on the relevant documents and affidavits on record, it

would suffice the purpose.

18. The petitioner/defendant claims that he is in

possession and he is in the process of construction. The

petitioner/defendant is said to have obtained building

license from Kachohalli Grama Panchayath as well as

power connection from BESCOM. To establish the same,

petitioner/defendant has placed on record the approved

plan as well as service certificate dated 12.09.2023

issued by BESCOM. It is pertinent to note that the plan

approval by Kachohalli Gram Panchayath is dated

11.11.2022 and service certificate dated 12.09.2023

issued by BESCOM indicating the date of service of

power as 22.11.2022, which are subsequent to filing of

suit on 03.11.2022. The Confirmation Deed dated

13.04.2023, on which the petitioner places reliance is

also a document subsequent to filing of suit. Moreover,

no document with regard to formation of layout by

Sri.A.P.Venkatanarasimhaiah in the year 1994-95 or

conversion of land from agriculture to non-agriculture is

placed on record by petitioner/defendant.

For the reasons recorded above, I am of the view

that there is no merit in the writ petition and

accordingly, writ petition stands dismissed.

Sd/-

JUDGE

NC CT:bms