Karnataka High Court

Sri. B. K. Shankaregowda vs Sri. Raghu. B. R on 4 June, 2024

Author: Ravi V Hosmani

Bench: Ravi V Hosmani

                               -1-
                                            MFA No.2613/2024



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 4TH DAY OF JUNE, 2024

                           BEFORE

        THE HON'BLE MR. JUSTICE RAVI V HOSMANI

MISCELLANEOUS FIRST APPEAL No.2613 OF 2024 (CPC)

BETWEEN:
     SRI B.K. SHANKAREGOWDA,
     S/O LATE KEMPAHANUMEGOWDA,
     AGED ABOUT 66 YEARS,
     R/AT BHAKTHARAHALLI VILLAGE,
     KOTHAGERE HOBLI, KUNIGAL TALUK,
     TUMAKURU DISTRICT, PIN CODE-572 120.
                                                 ...APPELLANT
(BY SRI PUNITH C., ADVOCATE)

AND:
1.    SRI RAGHU B.R.,
      S/O RANGASWAIAH B.H.,
      AGED ABOUT 48 YEARS,
      R/AT BHAKTHARAHALLLI VILLAGE,
      KOTHAGERE HOGBLI, KUNIGAL TALUK,
      TUMAKURU DISTRICT PIN CODE-572 120.
2.    SRI LOKESHA,
      S/O CHIKKAHANUMAIAH,
      AGED ABOUT 47 YEARS,
      R/AT BHAKTHARAHALLI VILLAGE,
      KOTHAGERE HOBLI, KUNIGAL TALUK,
      TUMAKURU DISTRICT - 572 120.

3.    SMT. BHAGYAMMA,
      W/O LOKESHA,
      AGED ABOUT 41 YEARS,
      R/AT BHAKTHARAHALLI VILLAGE, ,
      KOTHAGERE HOBLI, KUNIGAL TALUK,
      TUMAKURU DISTRICT - 572 120.
                                              ...RESPONDENTS
(BY SRI SURESH S., ADVOCATE FOR R-1 )

     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER
43 RULE 1(r) OF CPC., AGAINST THE ORDER DATED 16.04.2024
                                 -2-
                                              MFA No.2613/2024



PASSED ON I.A.NO.1 IN O.S.NO.176/2022 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND JMFC., KUNIGAL, ALLOWING THE I.A.NO.1
FILED UNDER ORDER XXXIX RULE 1 AND 2 OF CPC.

      THIS APPEAL COMING ON FOR DICTATING JUDGMENT THIS
DAY, THE COURT DELIVERED FOLLOWING:

                           JUDGMENT

Challenging order dated 16.04.2024 passed by Senior

Civil Judge & JMFC., Kunigal, on I.A.no.1 filed under Order

XXXIX Rules 1 and 2 of CPC in O.S.no.176/2022, this appeal is

filed by appellant.

2. Sri Punith, learned counsel for appellant submitted,

appellant was defendant no.1 in O.S.176/2022, which was filed

by respondent no.1 herein for declaration and permanent

injunction etc. In said suit, I.A.no.I was filed seeking for

temporary injunction restraining defendants etc. from

interfering with plaintiff's peaceful possession and enjoyment of

suit schedule property during pendency of suit.

3. It was submitted, under impugned order, trial Court

allowed I.A.no.I on wholly untenable grounds, constraining

defendant no.1 to file this appeal. It was submitted plaintiff had

utterly failed to establish prima facie case. It was submitted

sale deed under which plaintiff claimed interest or right in

respect of suit property by referred to mutation entries existing

in name of his vendor, whereas said mutation entry were not in

relation to suit property. It was submitted that in any case,

plaintiff's vendor was not a party to said sale deed.

4. Relying on decisions in P Kishore Kumar v. Vittal

K Patkar, reported in 2023 SCC OnLine SC 1483 and

Vishwa Vijay Bharathi v. Fukhrul Hassan & Ors. reported

in 1976 (3) SCC 642, it was submitted, no person can convey

better title than what he had and mere mutation entries do not

either create or extinguish rights in respect of immovable

properties. Therefore, reason assigned by trial Court that

revenue entries stood in name of plaintiff would be wholly

untenable. It was submitted, after observing that 'title of

plaintiff was under cloud' and same required full-fledged trial,

grant of temporary injunction would be unjustified. It was

further submitted, that in Seema Arshad Zaheer v.

Municipal Corporation of Greater Mumbai, reported in

(2006) 5 SCC 282, it was held interference by appellate Court

would be justified when trial Court failed to exercise discretion.

5. And relying on decisions in Kashi Math Samsthan

and Anr. v. Srimad Sudhindra Thirtha Swamy And Anr.,

reported in 2010 (1) SCC 689 and Shyam Sel and Power

Limited & Anr. v. Shyam Steel Industries Limited,

reported in 2023 (1) SCC 634, it was submitted there would

be no question of considering balance of convenience or

irreparable loss and injury where party fails to prove prima

facie case. On above grounds, sought for allowing appeal.

6. On other hand, Sri Suresh, learned counsel for

plaintiff/respondent no.1 opposed appeal. It was submitted, in

affidavit filed in support of I.A.no.1/2024, plaintiff had stated

that he was absolute owner in possession and enjoyment of

suit property having purchased it from previous owner -

Smt.Gangamma, under registered sale deed dated 07.08.2018

by paying valuable consideration of Rs.5,50,000/-. It was

submitted, thereafter, revenue entries were mutated in name

of plaintiff. At that stage, defendant no.1 attempted to get

khata changed in his name on basis of a collusive compromise

decree obtained in O.S.no.3/2021 on file of Senior Civil Judge,

Kunigal, by incorporating suit property in compromise petition.

It was submitted suit claim was based on an alleged Will dated

30.07.1963, and when testator had died wayback in 1967 itself.

Therefore, trial Court had held that these facts require trial. It

was also submitted, defendant no.1 had in any case not

questioned mutation entries and mere denial would not hold

good, while considering application under Order XXXIX Rules 1

and 2 of CPC, especially when under Section 133 of Karnataka

Land Revenue Act, 1964, revenue entries attracted

presumption in law. Consequently, finding of trial Court cannot

be stated to be without any basis or was untenable. It was

further submitted that in W.P.no.2766/2024 passed by this

Court while considering challenge against order rejecting

I.A.no.2 for stay of compromise decree, time frame of six

months for disposal of suit was fixed and three months out of

said period had already lapsed. Under such circumstances, in

case, parties were to be relegated to trial Court, entire suit

could be concluded within short period of time. And on said

grounds, sought for dismissal of writ petition.

7. Heard learned counsel and perused impugned order.

8. From above submission, point that arises for

consideration is:

"Whether findings of trial Court on points no.1 to 4 call for interference in appeal?"

9. Admittedly, this is an appeal against discretionary

order passed under provisions of Order XXXIX Rules 1 and 2 of

CPC. Hon'ble Supreme Court in Mohd. Mehtab Ibrahim Khan

v. Khushnuma Ibrahim Khan, reported in 2013 (9) SCC

221, has defined scope of interference on discretion orders by

Appellate Court. In its decision in, it is held as under:

"15. In a situation where the learned Trial Court on a consideration of the respective cases of the parties and the documents laid before it was of the view that the entitlement of the plaintiffs to an order of interim mandatory injunction was in serious doubt, the Appellate Court could not have interfered with the exercise of discretion by the learned Trial Judge unless such exercise was found to be palpably incorrect or untenable. The reasons that weighed with the learned Trial Judge, as already noticed, according to us, do not indicate that the view taken is not a possible view. The Appellate Court, therefore, should not have substituted its views in the matter merely on the ground that in its opinion the facts of the case call for a different conclusion. Such an exercise is not the correct parameter for exercise of jurisdiction while hearing an appeal against a discretionary order. While we must not be understood to have said that the Appellate Court was wrong in its conclusions what is sought to be emphasized is that as long as the view of the Trial Court was a possible view the Appellate Court should not have interfered with the same following the virtually settled principles of law in this regard as laid down by this Court in Wander Ltd. v. Antox India (P) Ltd.[3] Para 14 of the aforesaid judgment which is extracted below would amply sum up the situation:

"14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. After

referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph: (SCR 721) "... These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton '...the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case'." The appellate judgment does not seem to defer to this principle."

16. Though the above discussions would lead us to the conclusion that the learned Appellate Bench of the High Court was not correct in interfering with the order passed by the learned Trial Judge we wish to make it clear that our aforesaid conclusion is not an expression of our opinion on the merits of the controversy between the parties. Our disagreement with the view of the Division Bench is purely on the ground that the manner of exercise of the appellate power is not consistent with the law laid down by this Court in the case of Wander Ltd. (supra). Accordingly, we set aside the order dated 09.10.2012 passed by the Appellate Bench of the Bombay High Court and while restoring the order dated 13.04.2012 of the learned Trial Judge we request the learned Trial Judge, or such other court to which the case may, in the mean time, have been transferred to dispose of the main suit as expeditiously as its calendar would permit with the expectation that the same will be possible within a period of six months from the date of receipt of this order. The appeal shall stand disposed of in terms of the above.

10. Perusal of impugned order reveals that trial Court

took note of pleadings and contentions of both parties,

adverted to copies of documents produced and after framing

necessary points for consideration, passed reasoned order.

11. As rightly submitted, main reason assigned by trial

Court is that plaintiff's name was consistently appearing in

revenue records. Said fact is not disputed. But, defendant no.1

contends that there was no basis for such entries, by referring

to sale deed executed by Smt.Gangamma, and that mutation

entries referred to in sale deed do not pertain to suit property,

which is refuted by plaintiff.

12. Though, in P Kishore Kumar and Vishwa Vijay