Karnataka High Court
Veeramani K C vs N Shivaprasad on 1 March, 2024
Author: H.P. Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1st DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A. NO.6736/2023 (CPC)
C/W.
M.F.A. NO.6738/2023 (CPC)
IN M.F.A. NO.6736/2023:
BETWEEN:
1. VEERAMANI K.C.
AGED ABOUT 58 YEARS
S/O CHINNARAJU
RESIDINGA AT HRBR LAYOUT
BANASWADI,
BENGALURU-560043
PRESENTLY RESIDING AT
NO.1, GANDHI ROAD,
EDYYAMPATTI JOLARPETTI
VELLUR DISTRICT - 635851
TAMILNADU STATE. ... APPELLANT
(BY SRI SAMPAT ANAND SHETTY, ADVOCATE)
AND:
1. N. SHIVAPRASAD
AGED ABOUT 61 YEARS
S/O LATE NANJAPPA
FALSELY CLAIMING TO BE
RESIDING AT PROPERTY BEARING NO.9
PENT HOUSE, 6TH FLOOR
SRT COMPLEX, SERVICE ROAD
2
CHALLKERE, KALYANNAGAR
BENGALURU-560043
BUT IN FACT
RESIDING AT NO.415, 6TH 'A' MAIN
HRBR LAYOUT, BANASWADI
BANGALORE - 560043. ... RESPONDENT
(BY SRI JACOB ALEXANDER, ADVOCATE
[FOR CREST LAW PARTNERS])
THIS M.F.A. IS FILED U/O 43 RULE 1(r) R/W SECTION 151
OF CPC, AGAINST THE ORDER DATED 15.09.2023 PASSED ON
I.A.NO.1 IN O.S.NO.25567/2023 ON THE FILE OF THE XIII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYO HALL
UNIT, BENGALURU CCH-22, DISPOSING OFF I.A.NO.1 FILED
UNDER ORDER 39 RULE 1 AND 2 OF CPC.
IN M.F.A. NO.6738/2023:
BETWEEN:
1. VEERAMANI K.C.
AGED ABOUT 58 YEARS
S/O CHINNARAJU
RESIDINGA AT NO.1, GANDHI ROAD,
EDYYAMPATTI JOLARPETTI
VELLUR DISTRICT - 635851
TAMILNADU STATE. ... APPELLANT
(BY SRI SAMPAT ANAND SHETTY, ADVOCATE)
AND:
1. N. SHIVAPRASAD
AGED ABOUT 61 YEARS
S/O LATE NANJAPPA
FALSELY CLAIMING TO BE RESIDING
AT PROPERTY BEARING NO.9
PENT HOUSE, 6TH FLOOR
SRT COMPLEX, SERVICE ROAD
3
CHALLKERE, KALYANNAGAR
BENGALURU-560043
BUT IN FACT
RESIDING AT NO.415, 6TH 'A' MAIN
HRBR LAYOUT, BANASWADI
BANGALORE - 560043. ... RESPONDENT
(BY SRI JACOB ALEXANDER, ADVOCATE
[FOR CREST LAW PARTNERS])
THIS M.F.A. IS FILED U/O 43 RULE 1(r) R/W SECTION 151
OF CPC, AGAINST THE ORDER DATED 07.06.2023 PASSED ON
I.A.NO.1 IN OS.NO.25762/2023 ON THE FILE OF THE XIII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYO HALL
UNIT, BENGALURU CCH-22, ALLOWING THE I.A.NO.1 FILED
UNDER ORDER 39 RULE 1 AND 2 OF CPC.
THIS APPEALS HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 15.02.2024 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
The appeal in M.F.A.No.6736/2023 is filed challenging
the impugned order passed on I.A.No.1 in
O.S.No.25567/2023 contending that the Trial Court
protected the possession of both the plaintiff and defendant
over those portions of the suit schedule property in which
they were in possession as on the date of the suit. In other
words, protected the possession of the defendant over flat
No.29/penthouse in the 6th floor of suit schedule property.
The appeal in M.F.A.No.6738/2023 is filed praying this
Court to set aside the order passed by the Trial Court dated
07.06.2023 on I.A.No.1 in O.S.No.25762/2023, wherein the
Trial Court passed an order of temporary injunction against
the appellant by restraining him from alienating or creating
third party interest over the suit property.
2. The factual matrix of the case of the appellant in
O.S.No.25567/2023 is that the plaintiff filed the suit for
bare injunction on the premise that originally suit schedule
property was purchased by the plaintiff and defendant
jointly under the sale deed dated 16.11.2013.
Subsequently, the defendant executed release deed dated
13.02.2015 relinquishing all his right in the suit schedule
property in favour of the plaintiff. Therefore, according to
the plaintiff, the defendant is ceased of all right, title or
interest over the suit schedule property in view of the said
release deed executed in favour of the plaintiff. When
things stood thus, alleged that defendant tried to interfere
with plaintiff's possession of the suit schedule property.
Hence, suit is filed for the relief of permanent injunction.
The suit schedule property is described as immovable
property bearing Municipal B.B.M.P. No.9 measuring 18.04
guntas i.e., totally measuring 19,874 sq.ft. situated at
Chelkere, K.R. Puram, Bangalore East Taluk consisting of
four floor apartment complex with all basic amenities and
surrounded by hollow brick wall.
3. The defendant appeared and filed the written
statement and admitted that the suit schedule property was
jointly purchased by plaintiff and defendant under sale deed
dated 16.11.2013. However, it is the case of the defendant
that alleged release deed dated 13.02.2015 set up by the
plaintiff is only a nominal document and notwithstanding
the same, the defendant has continued to be the joint
owner of suit schedule property and certain reasons are
cited as to why the said nominal release deed came to be
executed. The defendant contends that, it is in fact the
defendant, who has put up the construction on the suit
schedule property. The defendant further contends that
plaintiff and defendant jointly executed sale agreement
dated 21.04.2014 in favour of one C.V. Lokesh Gowda and
plaintiff has also executed power of attorney dated
16.11.2013 in favour of the defendant. Ultimately, it is the
contention of the defendant that, in view of the fact that
plaintiff and defendant are joint purchasers and release
deed is a nominal document, subject to the rights of Lokesh
Gowda, under the sale agreement, the plaintiff and
defendant each are entitled to half share in the suit
schedule property. It is also contended that the plaintiff and
defendant had agreed that, after apartment complex is
constructed, they will enter into separate memorandum of
apportioning their respective share. In the meantime,
plaintiff and defendant entered into tentative agreement
dated 19.06.2015. Hence, it is contended that the plaintiff
cannot maintain a suit for bare injunction. The plaintiff also
filed an application praying the Court to grant an order of
temporary injunction restraining the defendant from
interfering with peaceful possession and enjoyment of the
suit schedule property.
4. The Trial Court, having taken note of the
pleadings of the parties, formulated the points whether the
plaintiff has made out prima facie case for grant of
temporary injunction and whether balance of convenience is
in favour of the plaintiff and though considered other
application filed under Order 6, Rule 17 of CPC, the other
application filed by the defendant was restricted only in
respect of temporary injunction is concerned, since the Trial
Court has allowed the application filed under Order 39 Rule
1 and 2 of CPC and protected the possession of the
defendant in respect of flat No.29 i.e., penthouse in the
sixth floor of the suit schedule property and also directed to
provide car parking slot in the basement and made it clear
that the order shall not come in the way of plaintiff seeking
ejectment/eviction/recovery of possession of said portion of
suit schedule property from the defendant under due
process of law and also made it clear that in respect of the
basic amenities such as electricity and water connection
including the electricity supply for the lift, all expenses
thereto, shall be borne by the defendant making it clear
that the defendant cannot claim any equity or benefit on
the ground of the electricity bill or water bill or other
documents. Hence, the appeal in M.F.A.No.6736/2023 is
filed.
5. The M.F.A.No.6738/2023 is filed against allowing
of application filed under Order 39 Rule 1 and 2 of CPC
which is numbered as I.A.No.1 granting interim order not to
alienate the suit schedule property or create any 3rd party
interest over the suit schedule property till the disposal of
the suit. The Trial Court having considered the relief sought
in the plaint as well as interim relief and it is the contention
of the plaintiff that both plaintiff and defendant have jointly
purchased suit schedule property under sale deed dated
16.11.2013. Thereafter, the defendant has approached the
plaintiff for releasing of his share and the said release deed
is a nominal document, the same was never meant to be
acted upon. Despite execution of the said release deed, the
parties always treated the suit schedule property as the
joint property of the plaintiff and defendant. However,
recently, the defendant sought to exercise exclusive right to
suit schedule property and has filed O.S.No.25567/2023 for
permanent injunction to restrain the plaintiff herein from
interfering with his possession and enjoyment of the suit
schedule property by suppressing the fact that release deed
was only a nominal document which has prompted the
plaintiff to file the present suit for declaration that release
deed dated 13.02.2015 is void ab intio and for partition and
separate possession of his half share in the suit schedule
property and for permanent injunction.
6. The defendant has appeared and filed written
statement and taken the contention that release deed is
valid and binding and having executed the same by
receiving an amount of Rs.2,00,00,000/-(Rupees Two
Crores only) and he has released his entire right in respect
of the suit schedule property and on the face of the
registered release deed, it is clear that he had relinquished
all his rights over the suit schedule property. Now, he
cannot seek for any relief of main relief as well as the
interim relief and hence contend that he is not entitled for
any interim relief also. The Trial Court having considered
the pleadings of the parties, formulated the points whether
plaintiff has made out prima facie case, balance of
convenience and irreparable loss. Though another
application filed under Order 7 Rule 11 of CPC by the
defendant for rejection of the plaint and the Trial Court
comes to the conclusion that plaintiff has made out the case
for granting of temporary injunction and restrained the
appellant from alienating or creating any 3rd party right till
the disposal of the suit. Hence, the present
M.F.A.No.6738/2023 is filed.
7. The appellant in M.F.A.No.6736/2023 would
vehemently contend that the Trial Court erroneously comes
to the conclusion that the defendant has made out the case
that he has been in possession of the suit schedule property
and committed and error in protecting the possession of the
defendant illegally exercising the discretionary relief. Even
the Trial Court committed an error in granting interim order
in favour of defendant muchless modifying or varying the
order of injunction already granted in favour of the
appellant herein. The Trial Court thoroughly misdirected
itself both on question of law and facts. When the document
of release deed is prima facie clearly discloses ought not to
have considered the application filed by the respondent
herein. The very approach of the Trial Court in the matter
of protecting the so called possession of the defendant over
the imaginary portion of the suit schedule property is
illegal, unjust and arbitrary. The Trial Court relied upon the
created document of gas bill, the same is not in respect of
the suit schedule property. The very approach of the Trial
Court that the defendant is in possession of the flat No.29 is
erroneous and from the discussion of the Trial Court
revealed in paragraph No.13 of the earlier order dated
04.07.2023 coupled with reasoning assigned in impugned
order, it is further clear that the defendant took undue
advantage of the modified order passed by it on 20.04.2023
and by virtue of the police assistance which is provided by
the Trial Court, the defendant tried to establish his
possession in a portion of the suit schedule property which
is evidently on the basis of stray voucher of gas connection
in the name of the defendant, the said document could not
have been construed as document evidencing settled
possession of the defendant in any portion of the suit
schedule property muchless in the alleged flat No.29 on the
6th floor. The plaintiff nowhere admitted in his pleading that
the defendant is in possession of any portion of suit
schedule property. The Trial Court committed a serious
error of law in coming to the conclusion that the plaintiff
has not admitted virtually that the defendant is in
possession of the partition of the suit schedule property by
totally misleading and misinterpreting the objection
statement filed by the plaintiff. Hence, it requires
interference.
8. The counsel also would vehemently contend that
while disposing of application filed by the plaintiff as well as
defendant, the Trial Court also exceeded its limit in
restoring the electricity as well as providing all benefits
while passing an order on interim application. The counsel
also in M.F.A.No.6738/2023 vehemently contend that the
Court below committed an error in granting the relief of not
to alienate and to create any 3rd party right inspite of the
defendant in the said suit who is the appellant clearly
contended that there is no any prima facie case to grant the
relief of temporary injunction. When it is apparent on the
face of the record that the release dated 13.02.2015 which
has been executed by the plaintiff in favour of the
defendant with free consent before the concerned sub-
registrar, the same was executed indisputably for a
valuable consideration and paid the consideration amount
of Rs.2,00,00,000/-(Rupees Two Crores only). The theory
setup by the plaintiff that the said document is nominal
document which has been accepted by the Trial Court while
granting the interim relief and whether it is a nominal
document or not has to be proved during the course of trial,
but prima facie the Trial Court ought to have taken note of
the release deed dated 13.02.2015. The Trial Court
completely misconceived, misread and misinterpreted the
two documents namely compromise petition dated
10.10.2017 and the compromise decree passed by the
concerned Court in O.S.No.10494/2006, which are not only
irrelevant to the facts of the case on hand but also have
absolutely not bearing on the relief sought for by the
plaintiff in the instant suit. In the absence of any inter-say
admission between the plaintiff and defendant in the said
compromise decree dated 10.10.2017 in
O.S.No.10494/2006 with respect to the alleged joint
ownership of the suit schedule property, the Trial Court has
absolutely no basis to conclude that the plaintiff continued
to be in joint owner of the suit property in question along
with defendant in the instant suit. Merely because both of
them were signatory to the said joint memo as defendant
Nos.5 and 6. The Trial Court has completely misread and
misinterpreted particularly the confirmation deed dated
29.05.2015 and came to an erroneous conclusion that the
plaintiff is a co-owner of the suit schedule property, the
same was conceded by the defendant. The counsel would
vehemently contend that the very approach of the Trial
Court is erroneous and hence it requires interference.
10. The counsel also would vehemently contend that
alleged GPA dated 16.11.2013 executed in favour of the
said Shivaprasad was cancelled on 13.05.2014 and even
after knowingfully well that the same was cancelled, a
document of sale agreement dated 21.04.2014 was created
and enters into an agreement with Lokesh Gowda and the
said document is also unregistered document. The counsel
also would vehemently contend that though an agreement
of sale was entered with defendant with regard to one
apartment is concerned, the same yet to be constructed
and not paid an amount of Rs.50,00,000/-. The counsel
also would vehemently contend that though P.C.R is filed
and after investigation 'B' report is also filed. The document
of gas bill is of the year 2007 and the electricity bill also
stands in the name of the appellant. The suit is filed in the
year 2023. The counsel also would vehemently contend that
subsequent suit is only after thought. Hence, the order
passed by the Trial Court in both the suits requires to be
set-aside.
11. Per Contra, the counsel appearing for the
respondent would vehemently contend that the Trial Court
has taken note of material available on record and also
brought to notice of this Court the statement of objections
filed by the respondent in both the appeals and also the
documents which have been produced before the Court.
The counsel mainly relies upon the document of Ex.R1 and
the reply given by the very plaintiff in one suit and the
defendant in another suit and categorically admitted that
the respondent is in possession of the property and even
prior to filing of the suit, even such reply in paragraph No.7
of the notice categorically admitted that the said
Shivaprasad i.e., respondent is in possession of the
premises of flat No.29 which is in 6th floor and categorically
contended that he has been in occupation based on the
lease deed and he has not paid the rent. Inspite of said
reply was given, filed a false suit for seeking the relief of
permanent injunction contending that the plaintiff is in
possession.
12. The counsel also would vehemently contend that
confirmation deed is also produced with regard to the same
and also produced gas bill and electricity bill. The
compromise petition is also clearly discloses that
subsequent to the alleged release deed, both plaintiff and
defendant are the parties to the said compromise petition.
In support of his contention that he has been in possession
of the property, produced photographs evidencing the fact
that the respondent is in possession of the suit schedule
property and the same has been considered by the Trial
Court while passing the interim order and though certain
directions are given while disposing the application filed for
the relief of temporary injunction and when the Court
comes to a conclusion that the plaintiff has not approached
the Court with clean hands, given such direction with regard
to the basic amenities of electricity and also the car
parking. Hence, the Court cannot find fault with the
direction given by the Trial Court. Hence, the very
contention that the Trial Court has not applied its mind and
erroneously protected the possession of respondent cannot
be accepted.
13. The counsel also would vehemently contend that
in other suit also when the suit is filed by the plaintiff
seeking the relief of cancellation of alleged release deed
contending that the said release deed is executed only in
order to help the defendant to get the loan since he has
contested for election and based on the said release deed,
he had availed the loan from the bank. The plaintiff was the
guarantor to the said loan transaction and apart from that
other documents subsequent to the said release deed,
came into existence and particularly in the compromise
petition, he was signatory and in the compromise petition it
was specifically mentioned that both defendant Nos.5 and 6
who are the plaintiff and defendant exercising their joint
right in respect of the suit schedule property, the said
document is subsequent to the release deed. When such
being the case, the same has been also taken note of by
the Trial Court. Hence, rightly granted the relief of
temporary injunction not to alienate and create any 3rd
party right till the disposal of the suit.
14. Having heard the appellant's counsel and also
the counsel appearing for the respondent and also on
perusal of material available on record, this Court has to
appreciate the material with regard to the factual aspects of
the case. Having perused the contentions of both the
parties, no dispute with regard to the fact that the property
was jointly purchased by plaintiff and defendant in the
respective suits that they have purchased the immovable
property bearing municipal khata No.9 measuring 19874
Sq.ft in terms of the registered sale deed executed in their
favour by one S.Mangilal and others on 16.11.2013 and on
the same day the defendant executed a general power of
attorney in favour of the plaintiff. The plaintiff cancelled the
above said GPA dated 16.11.2013. It is also the contention
that the defendant executed registered release deed in
favour of the plaintiff by relinquishing his half share in the
property covered under the above said sale deed. The fact
that existence of release deed is also not in dispute dated
13.02.2015.
15. It is also important to note that the plaintiff
Shivaprasad in other suit also sought for the cancellation of
the said release deed. It is also the contention that the
defendant i.e., Shivaprasad has entered into an agreement
of sale with the plaintiff in respect of a flat measuring 1600
sq.ft to be constructed in the above said property covered
under the release deed. It is the contention that the said
flat has not been constructed and also he has not paid the
amount as agreed i.e., to pay Rs.50,00,000/-. It is also
important to note that the relief sought in the suit filed by
the appellant before the Trial Court is for the relief of
permanent injunction and also inter-alia sought for the
relief of temporary injunction as per I.A.No.1 restraining the
defendant from interfering with the plaintiff's possession
and enjoyment of the suit schedule property, the same has
not been considered instead of Trial Court having perused
the material available on record, protected the possession
of the defendant. No doubt the very vehement argument of
the appellant's counsel before this Court is that the Trial
Court considered only the gas bill and temporary electricity
connection and there is no any permanent electricity is
provided and also the counsel would contend that in view of
modification of temporary injunction order, the defendant
entered into the possession illegally and that illegal
possession has been protected, but it is the contention of
the defendant that in the said suit, in fact the defendant
who has put-up the construction on the suit schedule
property and not the plaintiff and also contend that the
plaintiff and defendant have jointly executed sale
agreement dated 21.04.2014 in favour of C.V.Lokesh
Gowda and plaintiff has also executed power of attorney
dated 16.11.2013 in favour of the defendant. Ultimately it
is the contention of the defendant that in view of the fact
that the plaintiff and defendant are joint purchasers and
release deed is a nominal document, subject to the rights of
Lokesh Gowda under the sale agreement, the plaintiff and
defendant each entitled to half share in the suit schedule
property.
16. It is also important to note that the claim of the
defendant is that there was a sale agreement in favour of
the said Lokesh Gowda and also brought to notice of this
Court that suit was filed before the Trial Court on
06.04.2023. The counsel also vehemently contend that a
notice was exchanged between the said Lokesh Gowda, the
plaintiff and also defendant since the said Lokesh Gowda
had given notice on 30.01.2023 and reply was given by the
plaintiff himself admitting the possession of the defendant
in terms of his reply dated 24.03.2023 and the counsel also
brought to notice of this Court paragraph No.7 of the said
notice which is referred as document No.R1 when the
statement of objections was filed wherein the plaintiff
himself has admitted that one of penthouse is in occupation
of the said N.Shivaprasad which he has taken on lease from
his client and he is not paying rents nor he is vacating the
same. In view of the same, his client was specifically
instructed the N.Shivaprasad to vacate the said penthouse,
and has warned of taking recourse to law to evict him from
the said premises if not vacated at the earliest and this
notice dated 24.03.2023 and the suit is filed in 1st week of
April-2023 wherein he sought for the relief of permanent
injunction and restraining the said Shivaprasad in
interfering with possession. When the unequivocal
admission is on the part of the plaintiff that the said
Shivaprasad is in possession of the property and he has
taken the premises on lease and also specific averment is
made that he is going to take recourse to law to evict him
from the said premises and instead of doing the same, he
had filed a suit for permanent injunction against the
defendant and the said fact is also taken note of by the
Trial Court. Hence, it is clear that the plaintiff has not
approached the Court with clean hands. When such being
the case, he is not entitled for any discretionary relief of
temporary injunction as sought.
17. The Trial Court also while considering the
respective contentions of the counsel for respective parties
taken note of the fact that there is a registered release
deed dated 13.02.2015 and similarly taken note of the
possession of the defendant over the penthouse in the suit
schedule property, which is nothing but flat No.29 in the 6th
floor of suit schedule property, exercising inherent power
under Section 151 of CPC, the said possession of the
defendant over the said penthouse, which is termed as
unauthorized possession by the plaintiff deserves to be
protected from interference with otherwise than in
accordance with law. The Trial Court also taken note of
protection of defendant's possession over the said flat and
also taken note of basic amenities to the said flat such as
water and electricity and access to the said flat which
includes access to the lift, because without providing these
basic amenities and lift access, the possession of only the
flat situated in the 6th floor of the building would be
rendered meaningless. The Trial Court taken note of all
these factors into consideration while passing an order since
the point No.1 was considered in favour of the defendant in
order to protect the possession of the defendant and while
protecting the possession of both the plaintiff and
defendant over those portions of the suit schedule property
in which they are in possession as on the date of suit,
accordingly disposed of I.A.No.1. Hence, I do not find any
error committed by the Trial Court and also giving
directions while considering the application of the plaintiff
and the defendant. Hence, I do not find any merit in the
appeal to comes to a other conclusion that the Trial Court
committed an error in exercising its discretion.
18. In so far as to the M.F.A.No.6738/2023, this
Court has to take note of the relief sought in the suit filed
by the plaintiff wherein he has sought for the relief of
cancellation of the release deed dated 13.02.2015 and also
claiming partition of half share of the plaintiff in the suit
schedule property and also claiming permanent injunction
and also sought for the relief of temporary injunction
restraining defendant from not to alienate and create any
3rd party rights. The factual aspects and contentions in both
the suits are same i.e., both of them jointly purchased the
properties in the year 2013 and no dispute to that effect,
but the very contention that subsequent to the release deed
dated 13.02.2015, the plaintiff has relinquished his entire
right by receiving an amount of Rs.2,00,00,000/- (Rupees
Two Crores only). It is the contention of the plaintiff that
the said document is only a nominal document and only in
order to help the defendant, the said document of release
deed came into existence since the defendant intend to
contest the elections and he was in need of money and
hence he has obtained the nominal document of release
deed dated 13.02.2015, the same is executed for election
purpose. It is also contended that the property was also
mortgaged as security for availing loan, but financial
institution required one independent surety apart from the
security of immovable property. Both the plaintiff and
defendant mortgaged the suit schedule property, they
would have to find some other independent surety and
instead to facilitate availing of the loan, the plaintiff
executed the release deed, thereby, showing the defendant
as the sole owner of the suit schedule property and
defendant mortgaged the suit schedule property to the
financial institution as the sole owner and plaintiff stood as
guarantor/surety for the loan. The document No.33 also
discloses sanction of loan letters of the Charan Souharda
Co-Operative Bank which reflects sanction of loan on
security of immovable property to the defendant.
19. The Trial Court taking into note of the averment
made in the plaint as well as the document of release deed
dated 13.02.20215, there was a compromise was entered
into in O.S.No.10494/2006, the said suit was filed by the
original owners of the suit schedule property against the
vendors of plaintiff and defendant and also against the
plaintiff and defendant who have been arrayed as defendant
Nos.5 and 6. In the said suit, compromise was entered into
between the parties wherein also defendant Nos.5 and 6
who are the plaintiff and defendant recognized them as
joint owners of the suit schedule property and in the
compromise petition at paragraph No.7, the plaintiff No.1 of
the said suit has conceded and declared that defendant
Nos.5 and 6 are in lawful possession and enjoyment of the
suit schedule property and they have putup the
construction of commercial complex. The defendant Nos.5
and 6 exercising all acts of ownership in relation thereto. It
is also important to note that said compromise petition
dated 10.10.2017 and the release deed dated 13.02.2015,
the said fact also taken note of by the Trial Court in
paragraph No.14 of the order and in paragraph No.15 also
discussed with regard to the confirmation deed dated
29.05.2015, the same is also subsequent to the release
deed dated 13.02.2015 and the same is executed by
plaintiff No.2 of the said suit, the said registered
confirmation deed is also produced before the Trial Court
and the same is also in favour of the plaintiff and
defendant. The Trial Court not only taken note of the
compromise entered into between parties and also even the
confirmation deed wherein the recitals made to the effect
that 1st party concedes that 2nd party i.e., plaintiff and the
defendant are lawful co-owners and they are in peaceful
possession of the suit schedule property.
20. Having taken note of the pleadings of the
plaintiff and also these two documents of compromise
petition and also the confirmation deed which are executed
subsequent to the release deed, the Trial Court comes to
the conclusion that if there was a release deed executed by
the plaintiff on 13.02.2015 relinquishing all his right over
the suit schedule property, what made them to make an
averments that both of them are joint owners and
continued to treat the suit schedule property as the joint
property of the plaintiff and the defendant and also taken
note of the paragraph No.16, though counsel would
vehemently contend that all rights have been relinquished
in the year 2015 itself, what made the defendant in the said
suit to became a signatory to the compromise in
O.S.No.10494/2006 along with the plaintiff and also
obtaining the confirmation deed in favour of both of them.
Hence, comes to the conclusion that whether the
relinquishment deed is nominal document or outrately
executed the same is a matter of trial and comes to the
conclusion that matter requires to be enquired into in the
Trial Court in paragraph No.19 also taken note of the said
fact into consideration that whether they have treated the
release deed as nominal or not and the same cannot be
considered at this stage by considering particularly the
material of compromise petition as well as confirmation
deed and whether they are the joint owners and finding
requires to be recorded in the suit since serious issues
requiring determination in the trial. Hence, comes to the
conclusion of prima facie case is made out. The Trial Court
also considered both pleadings available on record and also
the documents and when the Court comes to the conclusion
that matter requires a trial and rightly formulated the point
that the plaintiff has made out a prima facie case and at
this stage when the plaintiff has made out prima facie case
and plaintiff is required to be granted temporary injunction
not to alienate and if such order has not been passed, it
would amounts to multiplicity of proceedings and litigation
between the parties there cannot be a bonafide litigation
and hence rightly comes to the conclusion that plaintiff has
made out a prima facie case by answering the point No.1 as
affirmative. Hence, I do not find any error committed by the
Trial Court in granting the relief of temporary injunction
that too not to alienate and create any 3rd party right.
Hence, I do not find any force in the contention of the
appellant's counsel that the Trial Court has committed an
error in granting the relief of temporary injunction and the
very contention that the Trial Court has misdirected and
misread the document of release deed and other documents
and also the compromise decree as well as confirmation
deed cannot be accepted and the matter requires a full
fledged trial in order to consider the relief of cancellation of
release deed and also whether the plaintiff is entitled for
half share in the property in which both of them have been
purchased jointly in the year 2013 and other documents
which came into force subsequent to the purchasing of the
property also to be considered during the course of the
trial. Hence, I do not find any merit in the appeal.
21. In view of the discussions made above, I pass
the following:
ORDER
Both the appeals are dismissed.
Sd/-
JUDGE
RHS
