Karnataka High Court
Ajjamada Thimmaiah vs M. M. Chandy on 8 June, 2017
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF JUNE, 2017
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
M.F.A. No.3450/2016 (CPC)
BETWEEN:
1. AJJAMADA THIMMAIAH
AGED ABOUT 72 YEARS
2. AJJAMADA CHENGAPPA
AGED ABOUT 60 YEARS
3. AJJAMADA MANDANNA
AGED ABOUT 54 YEARS
ALL OF THEM ARE SONS OF
LATE POOVAIAH
4. SMT. AJJAMADA YESHODA
D/O LATE POOVAIAH
AGED ABOUT 53 YEARS
ALL OF THEM ARE THE
PERMANENT RESIDENTS OF
BEERUGA VILLAGE
KURCHI POST, SRIMANGALA
NAD, SOUTH KODAGU.
... APPELLANTS
(BY SRI. C.M. POONACHA, ADVOCATE)
AND:
1. M.M. CHANDY
S/O LATE M.C. MATHEW
AGED ABOUT 72 YEARS
2
2. SMT. MARY MATHEW
W/O LATE M.C. MATHEW
AGED ABOUT 92 YEARS
BOTH OF THEM ARE AT
NO.47/1, ASHRAM ROAD
JAYALAKSHMIPURAM
MYSORE-570 012.
3. M/S ANAPARAI ESTATE LTD.,
REP. BY SRI. CHANDI GEORGE
S/O LATE GEORGE
AGED ABOUT 72 YEARS
CHAMUNDI BUILDINGS
METAGALLI POST
MYSORE-570 016.
... RESPONDENTS
(BY SRI.H.N. MANJUNATH PRASAD, ADV., FOR R-1;
R-2 SERVED BUT UNREPRESENTED;
SRI. G. BALAKRISHNA SHASTRY, ADV., FOR R-3)
THIS APPEAL IS FILED UNDER ORDER 43, RULE 1(r)
OF CPC, AGAINST THE ORDER DATED 6.2.2016 PASSED
IN O.S.NO.45/2009 ON THE FILE OF THE SENIOR CIVIL
JUDGE, JMFC, VIRAJPET, DISMISSING I.A.NO.2 FILED
UNDER ORDER 39, RULE 1 & 2 OF CPC.
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This is a plaintiffs' appeal questioning the correctness and legality of order dated 06.02.2016 passed in O.S.No.45/2009 dismissing I.A.No.2 filed by 3 plaintiffs whereunder they have sought for grant of temporary injunction to restrain the defendants 1 to 3 or anyone claiming through them from interfering with the lawful possession and enjoyment of suit schedule properties by them.
2. Facts in brief which has led to the filing of this appeal can be crystalised as under and parties are referred to as per the rank in trial Court:
Plaintiffs have filed the suit in question O.S.No.45/2009 for the relief of declaration to declare they are the absolute owners of suit schedule properties and for the relief of perpetual injunction to restrain the defendants from interfering with their possession. In aid of main relief sought for in the suit, an interlocutory application under Order 39 Rule 1 and 2 read with Section 151 CPC came to be filed for grant of temporary injunction. Said application undisputedly was accompanying the plaint, which was filed in the year 2009. The sum and substance of plaintiffs' claim before the Court below was from March' 1954 onwards and 4 plaintiffs and their father were in joint possession of suit schedule properties and on death of their father in the year 1996, they are in lawful possession and enjoyment of suit schedule properties.
3. On service of suit summons, defendants appeared, filed their written statement and have denied the averments made in the plaint and it was contended interalia that they had purchased suit properties in the year 1969 from the father of plaintiffs, who along with two brothers Sri. Belliappa and Sri. Joyappa had executed sale deed in the year 1969 in favour of defendants 1 and 2 and another brother of plaintiffs' father - Sri.Ponnapa had also affixed his signature as consenting witness to the said sale deed. Possession was delivered to defendants 1 to 2 under the said sale deed and they continued to be in possession of the same. 3rd defendant contended that he had purchased suit property from defendants 1 and 2 under a sale deed dated 06.08.1997 and has been in possession and enjoyment of the same. Objections came to be filed to 5 I.A.No.2 on identical lines and trial Court after considering rival contentions raised by respective learned Advocates appearing for the parties, by order under challenge dismissed the application in question.
4. I have heard the arguments of Sri.Poonacha, learned counsel appearing for appellants / plaintiffs and Sri.H.M.Manjunath Prasad, learned counsel appearing for respondent No.1 and Sri.G.Balakrishna Shastri, learned counsel appearing for respondent No.3. Respondent No.2 is served and unrepresented. Perused the records.
5. The short point that arises for consideration in this appeal is: Whether application filed by the plaintiffs under Order 39 Rule 1 and 2 read with Section 151 CPC seeking temporary injunction, which has been dismissed by order under challenge dated 06.02.2016, is to be set aside or affirmed?
6. Plaintiffs as already noticed hereinabove are children of late Sri. Poovaiah have filed the suit in 6 question contending that suit properties are jammabane lands and under oral partition which took place in the year 1962 between their father and his brothers namely, Sriyuths. Poovaiah, Ponnappa, Belliappa and Joyappa whereunder suit property came to the share of plaintiffs' father and it has been in possession of plaintiffs' father along with plaintiffs. It was also contended that they are in joint possession and enjoyment of the same. It was further contended that though sale deed was executed by their father Sri.Poovaiah and his brothers on 23.06.1969 in favour of defendants 1 and 2, defendants could not take possession of jammabane lands and right, title and interest including possession continued with the plaintiffs and their father and alleged sale was not for any legal necessity or benefit of the family and there existed no justifiable cause for selling suit schedule properties at that point of time by the father of plaintiffs. Defendants 1 to 3 have filed written statement and also objections to the application for temporary injunction. They have contended that suit properties had fallen to the share of father of plaintiffs 7 and his brothers in the partition, which took place amongst the members of family and they had sold the said property in favour of defendants 1 and 2 under the sale deed dated 23.06.1969 and in-turn defendants 1 and 2 had sold the property to defendant No.3 under the sale deed dated 06.08.1997 and they got the revenue records mutated to their names and they have been in possession and enjoyment of the same. As already noticed hereinabove, trial Court has accepted the plea of defendants and has refused to grant an order of temporary injunction.
7. It is the contention of Sri. Poonacha, learned counsel appearing for plaintiffs that there being no dispute that suit properties being joint family properties, plaintiffs joint possession along with their father and this aspect has not been considered or examined by trial Court in proper perspective. He would also contend that lands in question being jammabane lands, same could not have been sold, even otherwise, a co-sharer having sold the property the only 8 recourse, which was left open to defendants was to seek for partition and separate possession of properties and without resorting to said recourse, they cannot assert possession over the suit properties. Hence, he has prayed for allowing the appeal.
8. Trial Court under the impugned order has noticed that prior to execution of sale deed on 23.06.1969 there was an agreement of sale executed by the vendors namely, Sriyuths. Poovaiah, Belliappa and Joyappa and possession of suit properties had been delivered and recital in the sale deed dated 23.06.1969 would also reaffirm the said fact. The contention of plaintiffs that possession was not delivered, cannot be accepted in view of the recitals found in a registered deed. Any oral assertion contrary to the recitals found in a registered deed would stand excluded in terms of Section 91 of the Evidence Act, 1872, inasmuch as, to the terms of a contract or of a grant or of any dispossession of the property, which has been reduced in the form of writing by execution of a document, 9 Section 91 of the Evidence Act excludes other evidence even in terms of such contract or dispossession of property except the deed/document/instrument itself. In other words, a presumption arises as to the recitals found in the registered document. It is no doubt true that presumption is always rebuttable. It would be a matter of evidence to establish this fact before the Court below.
9. Registered sale deed dated 23.06.1969 executed by the father of plaintiffs and his brothers in favour of defendants 1 and 2, was after obtaining necessary approval from the jurisdictional authorities, since jummabane lands could have not been sold without express permission from the appropriate Government. Defendants 1 and 2 have remitted the Nazrana (royalty) to the Government also. In fact, trial Court has taken note of the fact that contents of the registered sale deed discloses that there was a family partition in the year 1943 between Sri. Muthanna and his brothers namely, plaintiffs' grandfather and his 10 brothers. Thus, property so received by the said Sri.Muthanna is contended to be self acquired property by defendants. But on the other hand, plaintiffs before this Court have contended that Section 8 of the Hindu Succession Act, would be inapplicable but it would be Section 6. At this stage, if this Court were to embark upon conducting any enquiry in this regard, it is likely to prejudice the right of parties in the pending suit and in that view of the matter, no opinion is expressed in that regard. Same is kept open for being established before trial Court and all contentions are kept open. However, as already observed hereinabove recitals found in the registered document would prevail over any other plea or contention.
10. Father of plaintiffs, who executed the sale deed in the year 1969, having not disputed that defendants are not in possession of suit property during his lifetime and he having not taken steps to get the sale deed annulled or having sought for same being declared as null and void and not binding on him, the incidental 11 issue which may arise in the light of plea raised by the defendants would be as to whether the suit is barred by limitation in view of Article 109 of the Limitation Act, 1963. Even this aspect cannot be gone at this stage, for the simple reason that issue of limitation would be a mixed question of fact and law. Thus, it would be open for the parties to urge their respective contentions in that regard before trial Court.
11. As rightly observed by the trial Court that application in question, which came to be filed in the year 2009, was not pursued by plaintiffs till 2015 when the order under challenge came to be passed for the reasons best known. In other words, no order was passed for six (6) years. Undisputedly, there was no ad- interim exparte order of temporary injunction granted in favour of plaintiffs at the initial stage. In other words, when plaintiffs having asserted that they are in possession of suit schedule properties and same being seriously disputed by defendants by relying upon the sale deed dated 23.06.1969 executed by the father of 12 plaintiffs and revenue records also reflecting that records have been mutated in favour of defendants 1 and 2, a presumption arises as to defendants being in possession and as such, it cannot be gainsaid by plaintiffs that they continued to be in possession along with their father particularly when father of plaintiffs himself had specifically stated in the sale deed dated 23.06.1969 that possession of suit properties has been delivered to defendants 1 and 2 in the year 1969 itself. In that view of the matter, plea put forward by plaintiffs that they continued to be in joint possession of suit schedule properties, cannot be accepted and trial Court has rightly refused to accept the plea put forward by plaintiffs. In that view of the matter, I do not find any error committed by trial Court in refusing to grant an order of temporary injunction in favour of plaintiffs on all three grounds namely, prima facie case, balance of convenience and irreparable loss and injury particularly having taken note of the fact that plaintiffs' father along with his brothers had executed the sale deed in the year 1969 i.e., on 23.06.1969 that all the revenue records 13 had been mutated in favour of defendants 1 and 2 and defendants 1 and 2 in turn had executed sale deed in favour of 3rd defendant on 06.08.1997 and 3rd defendant being in possession and enjoyment of suit properties and also the fact that from the year 2009 i.e., from the date of filing of suit till application came to be considered by trial Court in 2015 there being no order of temporary injunction, it cannot be gainsaid by the plaintiffs that they were in possession and enjoyment of suit schedule properties.
12. The observations made hereinabove is for the limited purpose of considering I.A.No.2 filed by plaintiffs for temporary injunction and trial Court shall not get influenced by the order passed on I.A.No.2 or any observation made by this Court under this order while adjudicating the suit on merits.
For the reasons aforestated, I proceed to pass the following:
ORDER
(i) Appeal is hereby dismissed.14
(ii) Order dated 06.02.2016 passed in
O.S.No.45/2009 by Senior Civil
Judge, JMFC, Virajpet, on I.A.No.2,
stands affirmed.
(iii) Costs made easy.
SD/-
JUDGE
DR