Karnataka High Court
Sri. Madan P vs Sri. Henderson Babu on 28 October, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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MFA No. 3908 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 3908 OF 2024 (CPC)
BETWEEN:
SRI. MADAN P.,
S/O SRI. MANOHAR,
AGED ABOUT 45 YEARS,
R/A NO.1417, 1ST CROSS,
OPP: AGIS GAS BUNK,
GANDHINAGAR, ARABIC COLLEGE POST,
KARNATAKA 570 001
...APPELLANT
(BY SRI. SHARAN L JAIN, ADVOCATE)
AND:
1. SRI. HENDERSON BABU,
S/O UNKNOWN,
Digitally signed AGED MAJOR,
by DEVIKA M
Location: HIGH R/A NO.2, GROUND FLOOR,
COURT OF V. NAGENAHALLI,
KARNATAKA
MUNIYAPPAN LAYOUT,
R.T. NAGAR, BANGALORE 560 032
2. SMT. ANJALI SHARILEY,
S/O UNKNOWN, AGED MAJOR,
R/A NO.2, GROUND FLOOR,
V. NAGENAHALLI,
MUNIYAPPAN LAYOUT,
R.T. NAGAR, BANGALORE 560 032
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MFA No. 3908 of 2024
3. SRI. RANDY EDUISON
S/O UNKNOWN,
AGED MAJOR,
R/A NO.2, GROUND FLOOR,
V. NAGENAHALLI,
MUNIYAPPAN LAYOUT,
R.T. NAGAR, BANGALORE 560 032
4. SMT. SOPHIYA RANI,
S/O UNKNOWN,
AGED MAJOR,
R/A NO.2, GROUND FLOOR,
V. NAGENAHALLI,
MUNIYAPPAN LAYOUT,
R.T. NAGAR, BANGALORE 560 032
...RESPONDENTS
(BY SRI. VIJAYKUMAR PRAKASH, ADVOCATE FOR
SRI. K.R. BHARADWAJ, ADVOCATE FOR C/R1 TO R4)
--------
THIS MFA IS FILED U/O 43 RULE 1(r) R/W SECTION 151 OF
CPC, AGAINST THE ORDER DATED 02.03.2024 PASSED ON
I.A.NO.1 IN OS.NO.4886/2021 ON THE FILE OF THE XX
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU,
CCH-32 DISMISSING THE IA.NO.1 FILED UNDER ORDER 39
RULE 1 AND 2 R/W SECTION 151 OF CPC.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
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MFA No. 3908 of 2024
ORAL JUDGMENT
Heard.
2. This appeal is preferred challenging the order dated
2.3.2024 passed by the Trial Court in O.S.No.4886/2021
rejecting I.A.I filed by plaintiff.
3. Parties in this appeal are referred as they are
arrayed before the Trial Court for the sake of convenience.
4. The main contention of the plaintiff while seeking
the relief of temporary injunction before the Trial Court are
that, he is the absolute owner in possession of the
schedule property; that he has purchased the schedule
property through registered sale deed dated 1.7.2021. It
was also his contention that he has purchased the said
property by obtaining loan from a financial bank and same
has been registered as document No.KCH-101052-2021-
22; that ever since the date of sale, he is in possession of
the schedule property, has paid upto date tax and all
revenue records stand in his name. It was his further
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contention that defendants with some rowdy elements
tried to interfere with his peaceful possession and
enjoyment over the schedule property and hence he
approached the jurisdictional police and as they refused to
entertain the complaint, on the ground that the matter is
civil in nature, therefore, without any other alternative,
has approached the Trial Court.
5. Per contra, defendants filed a memo stating that
contents of their written statement may be treated as
objections to I.A.I, wherein they had contended that
plaintiff is not the owner of the suit schedule property
under the sale deed dated 1.7.2021. The said sale deed is
fabricated, concocted and executed with a sole intention of
cheating the defendants and also is interfering with their
peaceful possession and enjoyment of the suit schedule
property along with other adjoining properties belonging to
them and that plaintiff is not entitled to any relief.
5.1. It was further contended that neither the plaintiff
nor his vendor had any manner of right, title or interest
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over the suit schedule property. Plaintiff's vendor has
fabricated, created and concocted a general power of
attorney purported to have been executed by one
Nanjundaiah s/o.Venkataram in collusion with one
P.C.Raju. Based on said fabricated document, said
P.C.Raju has sold the suit schedule property to one
Bhaskar, who in turn has sold the property to plaintiff to
cheat the defendants.
5.2. It is also contended that the suit schedule
property along with other adjoining properties originally
belonged to A.V.Nanjundaiah s/o.Venkataram and the said
Nanjundaiah sold the same to Smt. A Saroja and since
there was restriction imposed by the Government at that
time for registering revenue sites, said Nanjundaiah had
executed GPA dated 25.1.1984 appointing Saroja to look
after and maintain the same including the powers to
alienate the said properties receiving sale consideration
amount which was acknowledged by him and having
received the sale consideration amount, he has delivered
vacant possession of the property to Saroja and she had
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been in peaceful possession and enjoyment of the same.
During the life time of Saroja, she had executed a Will
bequeathing the suit schedule property along with other
properties in favour of her son Immanuel who had
constructed two small ACC sheet roofed houses thereon by
obtaining water and electricity connection and put
compound wall all along the properties. It is also their
contention that the said Immanuel gifted the suit schedule
property in favour of his children, defendants herein,
under four gift deeds dated 30.3.2019 and pursuant to
which defendants are in peaceful possession and
enjoyment of their respective properties. When such
being the case, as P.C.Raju along with others started
interfering with defendants peaceful possession, suit was
filed and an ad-interim order of temporary injunction had
been obtained against Raju and others and it is still
operating. Learned counsel for the defendants had
contended that defendants are in possession of the suit
schedule property and clearly established title. Learned
counsel for the defendants therein had also brought to the
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notice of this Court that the Trial Court has also taken note
of the document relied upon by the plaintiff i.e., the
affidavit said to have been executed by Nanjundaiah in
favour of P.C.Raju wherein it bears the signature of
District and Sessions Judge, Karnataka Appellate Tribunal
whereas, round seal is of the Court of Small Causes,
Bengaluru City and it creates doubt about execution of
GPA and therefore, the Trial Court held that there is no
prima facie case in case of plaintiff and rejected the
application.
6. Learned counsel for the plaintiff/appellant contended
that the defendants are claiming right based on the Will
said to have been executed by their grandmother Saroja,
who is a GPA holder, in favour of their father, who in turn
has gifted the property in favour of defendants, which
cannot be accepted as the said power of attorney holder
cannot convey any right, title or possession on the Will
dated 2005. The Trial Court has committed error in coming
to the conclusion that defendants have been in possession
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over the suit schedule property and has granted
injunction, which is not proper. The Trial Court has erred
in passing such an order.
7. Per contra, learned counsel for the
defendants/respondents also claim possession based on
the will dated 3.4.2005 said to have executed by Saroja
and also it is their contention that Saroja acquired
ownership from the original owner Nanjundaiah by
execution of general power of attorney dated 25.1.1984.
8. Having heard the learned counsel for the plaintiff
and particularly taking into consideration the fact that both
the parties claim that the suit schedule property belong to
them, it is noticed that plaintiff claims that the suit
schedule property originally belongs to Nanjundaiah, who
along with P.C.Raju sold the suit schedule property to
Bhaskar, who in turn has sold the property to plaintiff vide
sale deed dated 1.7.2021. On the other hand, defendants
contended that the said sale deed is fabricated, frivolous
and created one and the very power of attorney executed
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is doubtful and the said fact has been discussed by the
Trial Court and has refused to grant injunction in favour of
the plaintiff.
9. It is to be noted from the material on record that
defendants were in possession of the schedule property
since from 25.1.1984, the schedule property is part of
properties already purchased by the grandmother of the
defendants and in other words, defendants were in
possession of the schedule property prior to the sale
transaction of plaintiff. No doubt the plaintiff has filed a
suit for permanent injunction and has sought for
temporary injunction vide the application and the plaintiff
has to make out a prima facie case for grant of relief. The
Trial Court while rejecting the application comes to the
conclusion that very existence of documents are doubtful.
10. Learned counsel for the plaintiff/appellant would
contend that if there is any dispute with regard to the
execution of the document and if doubt has been
expressed, the same has to be considered during the
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course of trial and in the first instance Court has to take
note of the document if any produced before the Court and
ought to have granted relief. The said contention of the
counsel cannot be accepted since the very document on
which the plaintiff claims relief are disputed and the Court
has to look into the documents which have been produced
by the defendants claiming that they are in possession of
the property. Further, perusing the documents produced
i.e., the general power of attorney and affidavit said to
have been executed by Nanjundaiah in favour of P.C.Raju,
bears the signature of District and Sessions Judge,
Karnataka Appellate Tribunal and round seal of Court of
Small Causes Bengaluru City and comes to the conclusion
that it creates doubt regarding the very execution of the
general power of attorney and also has come to the
conclusion that no prima facie case is made out by the
plaintiff.
11. The Trial Court has further observed that the
injunction suit filed by the defendants discloses that they
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are in possession the schedule property and held that
temporary injunction as sought by the plaintiff is not
granted. When the relief of temporary injunction is
sought, the party has to establish ground for grant of
temporary injunction. No doubt grant of relief of injunction
is no doubt discretionary but it can be granted on making
out prima facie case and establishing the balance of
convenience. No doubt the appellant's counsel produced
document regarding payment of tax is concerned. It is not
the question of payment of tax is concerned but plaintiff
has to establish that he had got a prima facie case which
the plaintiff has failed to establish. The reasons assigned
by the Trial Court for rejection of prayer for temporary
injunction sought by the plaintiff/appellant are correct and
I do not find any error in rejecting I.A. by the Trial Court.
Further, the plaintiff/appellant has not made out any
grounds in this appeal for reversing the finding of the Trial
Court.
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In view of the discussion made above, I pass the
following order :
ORDER
The appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
rs
