Karnataka High Court
Sri K Dharmendra vs Sri Gopinath Muppiri on 7 January, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
MISCELLANEOUS FIRST APPEAL NO.8225/2024 (CPC)
BETWEEN:
SRI K. DHARMENDRA
S/O M. KRISHNASWAMY
AGED ABOUT 50 YEARS
RESIDING AT NO.81
GPR GRAND LAYOUT
HOSUR MAIN ROAD
OLD CHANDAPURA
ANEKAL TALUK
BANGALORE-560099. ... APPELLANT
(BY SRI C.S.PRASANNA KUMAR, ADVOCATE FOR
SRI K P BHUVAN, ADVOCATE)
AND:
SRI GOPINATH MUPPIRI
S/O LATE M. KRISHNAMMA NAIDU
AGED ABOUT 55 YEARS
R/O NO.46, DESAI GRADEN
VASANTHPURA MAIN ROAD
KONANKUNTE CROSS
KANAKAPURA ROAD
BANGALORE-560062
... RESPONDENT
(BY SRI AJITH A. SHETTY, ADVOCATE FOR C/R)
2
THIS M.F.A. IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 30.11.2024 PASSED ON I.A.
NOS.1/2024 AND 2/2024 IN O.S.NO.25367/2024 ON THE FILE
OF THE LVII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
MAYO HALL UNIT, BENGALURU (CCH-58), REJECTING I.A.
NO.1/2024 FILED UNDER ORDER XXXIX RULE 1 AND 2 READ
WITH SECTION 151 OF CPC AND ALLOWING THE I.A.2/2024
FILED UNDER ORDER 39 RULE 4 OF CPC FOR VACATING
TEMPORARY INJUNCTION GRANTED ON 23.04.2024.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 17.12.2024 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
CAV JUDGMENT
This miscellaneous first appeal is filed challenging the
order dated 30.11.2024 passed on I.A.Nos.1/2024 and 2/2024 in
O.S.No.2536/2024 by the LVII Additional City Civil and Sessions
Judge, Mayo Hall Unit, Bengaluru wherein the Trial Court
rejected I.A.No.1/2024 filed under Order 39 Rules 1 and 2 of
CPC and allowed I.A.No.2/2024 filed under Order 39 Rule 4 of
CPC.
2. Heard the learned counsel appearing for the
respective parties.
3. The factual matrix of the case of the plaintiff before
the Trial Court is that the plaintiff is the absolute owner in
peaceful possession and enjoyment of the suit schedule property
having acquired the same under the Gift Deed dated 07.12.2023
and pursuant to the Gift Deed, katha was transferred in his
name and gift deed was acted upon and all relevant documents
are standing in the name of the plaintiff as on the date of filing
of the suit. It is contended that defendant being the greedy
person, for a wrongful gain, has started to interfere with his
peaceful possession and enjoyment and along with his
henchmen, came near the suit schedule property and attempted
to dispossess the plaintiff, for which, the plaintiff has filed the
suit for the relief of permanent injunction and also filed an
application for temporary injunction as sought in I.A.No.1/2024.
4. Per contra, the learned counsel appearing for the
defendant filed a memo praying to adopted the written
statement as objection to I.A.No.1/2024 wherein he has
seriously disputed the execution of the Gift Deed in favour of the
plaintiff and also contended that the donor has already filed a
suit in O.S.No.2043/2002 and O.S.No.25367/2024 is pending
before the Court, in which, the very donor has filed the suit
against the original vendor for possession and hence, the same
shows that the plaintiff is not in possession of the suit schedule
property since the very donor was not in possession. It is
contended by the defendant that hy became the owner of he
said property bearing No.532/4 and 532/5 through registered
sale deed. It is also contended that even though the plaintiff is
not in possession of the property, created the gift deed and filed
a false suit and even title is also not perfected and approached
the Court to dismiss the application and also filed I.A.No.2/2024
under Order 39 Rule 4 of CPC praying to vacate the interim
order granted on 23.04.2024 and the said application is also
objected by the plaintiff by filing the objections.
5. The Trial Court having considered the documents
which have been placed by the respective parties, formulated
the points for consideration regarding cardinal principles of
granting temporary injunction. The Trial Court having considered
the material available on record answered point Nos.1 to 3 as
negative in respect of I.A.No.1/2024 is concerned and answered
point No.4 as affirmative in respect of I.A.No.2/2024 is
concerned. Being aggrieved by the said order, the present
appeal is filed before this Court by the plaintiff/appellant.
6. The learned counsel for the appellant would
vehemently contend that the suit schedule property is gifted by
the father and the Trial Court also granted an exparte injunction
earlier and the same has been vacated. The counsel also would
vehemently contend that the very approach of the Trial Court is
erroneous. The Trial Court has come to the wrong conclusion
that the suit schedule property in the present suit is in question
in another O.S.No.2045/2005 which can be proved only by way
of evidence and also the Trial Court failed to consider the fact
that the defendant is claiming right over the property in site
No.532/4 and 532/5 and alleged sites are in existence and
respondent has not produced the parent deed in support of his
claim. Without considering this aspect of the matter, the Trial
Court committed an error. The Trial Court committed an error in
coming to the conclusion that matter requires full fledged trial
regarding possession is concerned and the very approach of the
Trial Court that the plaintiff has not made out prima facie case,
balance of convenience and irreparable hardship and the said
conclusion is erroneous when the Gift Deed clearly discloses that
the appellant is in peaceful possession and enjoyment of the suit
schedule property. The Trial Court also failed to take note of the
fact that the appellant is claiming right, title and interest by
seeking permanent injunction in respect of site Nos.15 and 16
formed in Sy.No.139/4 and 139/5 and the respondent is claiming
right in respect of site Nos.532/4 and 532/5 and hence, the site
numbers are totally different and the boundaries are also totally
different and there is existence of the property to the
respondent. The counsel brought to notice of this Court the
schedule of 'A' and 'B' schedule properties and contend that it
requires interference of this Court.
7. Per contra, the learned counsel appearing for the
respondent would vehemently contend that when the very donor
himself had filed the suit for the relief of possession and in
support of his contention also produced the documents of plaint
in O.S.No.2043/2002 to show that schedule is also one and the
same in respect of the present suit and contend that the Trial
Court rightly comes to the conclusion that when the suit is filed
for the relief of possession, cannot seek for any relief and also
produced the sale deed dated 04.04.2003 wherein also
specifically mentioned the site number as 532/5 and in the very
same Sy.No.139/4 and 139/5 sites are formed and also brought
to notice of this Court another sale deed dated 04.04.2003
wherein also the very same description of the property is
mentioned that site No.532/4 which is carved out of
Sy.No.139/4-5 and also produced the katha certificate and
assessment extract.
8. In reply to the arguments, the learned counsel
appearing for the appellant also relied upon certain documents
i.e., the document of Gift Deed dated 07.12.2023 and also the
other Gift Deed of the same date in respect of site measuring
2400 square feet and also relied upon tax paid receipt of 2024
for having paid the tax at a time and also produced the
electricity bills and also the document of sale deed dated
25.02.1981 and also the sale deeds which have been produced
by the respondent and also suit filed in O.S.No.1255/2018 filed
by the vendor of the defendant for the relief of bare injunction
and contend that the Trial Court fails to take note of the fact that
both the properties are different properties.
9. Having heard the learned counsel appearing for the
respective parties and also on perusal of the material available
on record and also perused the grounds urged in the appeal
memo, 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 Rules 1 and 2 of CPC by the plaintiff and
committed an error in allowing application
filed under Order 39 Rule 4 of CPC in
vacating the interim order and whether it
requires interference of this Court?
2. What order?
Point No.1:
10. Having heard the learned counsel appearing for the
respective parties and also on perusal of the material available
on record, it discloses that the very claim of the plaintiff before
this Court that the property was gifted in his favour by his father
on 07.12.2023 and katha was transferred and tax also paid and
all revenue documents are in his name. On the other hand, the
defendant in his written statement contend that the very donor
has filed the suit for recovery of possession and when the donor
was not in possession of the property, the question of granting
any such relief does not arise and in support of his contention
also produced the copy of the plaint in O.S.No.2043/2002 which
has been filed by the donor and also another suit in
O.S.No.25367/2024 is pending. Having perused the reasoning
given by the Trial Court, it discloses that the Trial Court comes
to the conclusion that when the donor himself had filed the suit
for recovery of possession, the question of granting temporary
injunction as contended by the plaintiff cannot be granted. It is
also important to note that the suit schedule property is in
respect of sites carved out of Sy.No.139/4 and 139/5 and the
defendant also claims that site No.532/4 and 532/5 which also
carved out of very same survey number i.e., Sy.No.139/4 and
139/5 and hence, both are claiming title based on the sale deed
and gift deed respectively executed in their favour and the very
contention of the appellant that both the properties are different
cannot be accepted.
11. Having perused the suit schedule in
O.S.No.2043/2002, it is very clear that in respect of very present
suit schedule property, already donor has filed the suit against
the vendors for recovery of possession in O.S.No.2043/2002.
When such suit is filed for recovery of possession, the question
of delivering the possession of the property under the Gift Deed
in favour of the plaintiff does not arise since the very donor has
not having possession. Unless prima facie is made out for having
possession of the suit schedule property as on the date of filing
of the present suit by the plaintiff, the question of granting the
relief as prayed for in I.A.No.1/2024 does not arise. The learned
counsel for the respondent also brought to notice of this Court
payment of tax at a time. When the very donor was not in
possession of the property, the plaintiff cannot contend that the
plaintiff is in possession of the property. Hence, I do not find
any error committed by the Trial Court in rejecting
I.A.No.1/2024.
12. The learned counsel for the respondent brought to
notice of this Court the very photographs produced by the
appellant which clearly disclose that there is a board in respect
of forming of sites in Sarvabhauma Nagara and the said photo is
available in page No.68 of the appeal memo and also contend
that the photographs which have been produced are created for
the purpose of this case to show that the plaintiff is in
possession of the property and the same cannot be relied upon
to prove the possession is concerned. Having perused the
material available on record and also the grounds urged before
this Court, I do not find any prima facie case made out by the
plaintiff to allow this appeal and hence, this Court is of the
opinion that the Trial Court has not committed any error in
appreciating the material available on record in coming to such a
conclusion that no prima facie case is made out and rightly
rejected I.A.No.1/2024 and allowed I.A.No.2/2024. Hence, I
answer the above point as negative.
13. In view of the discussions made above, I pass the
following:
ORDER
The miscellaneous first appeal is dismissed.
Sd/-
(H.P. SANDESH)
JUDGE
SN
