Karnataka High Court
Gayan Kaur And Ors vs Gurudwara Sri. Nanak Jhira Saheb Bidar on 21 February, 2024
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NC: 2024:KHC-K:1675
MFA No. 200149 of 2024
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 21ST DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MRS. JUSTICE LALITHA KANNEGANTI
MISC. FIRST APPEAL NO.200149 OF 2024 (CPC)
BETWEEN:
1. SMT. GAYAN KAUR
W/O LATE MANOHAR SINGH
AGED ABOUT 76 YEARS,
OCC: HOUSEHOLD AND AGRICULTURE
R/O. H.NO.6-7-95
NEAR BASAVA MANTAP,
CHITTAKHANA, MAIN ROAD,
BIDAR-585401.
2. PRABHMEET KAUR
D/O AMEERJEET SINGH
AGED ABOUT 31 YEARS,
OCC: STUDENT,
Digitally signed
by R/O. H.NO.02, BELA CHOWK RANJIT AVEUE,
KHAJAAMEEN L RAUPGAR, RPOAR PUNJAB-140001.
MALAGHAN
Location: High
Court of 3. NECHALKAR
Karnataka
D/O AMEERJEET SINGH
AGED ABOUT 31 YEARS,
OCC: STUDENT,
R/O. H.NO.02 BELA CHOWK RANJIT AVEUE,
RAUPGAR, RPOAR PUNJAB-140001.
...APPELLANTS
(BY SRI. RAVI B. PATIL, ADVOCATE)
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MFA No. 200149 of 2024
AND:
GURUDWARA SRI. NANAK JHIRA SAHEB BIDAR
REPRESENTED BY ITS PRBHANDAK COMMITTEE
THROUGH S. BALBIR SINGH
S/O LATE S. JOGA SINGH JI
AGED ABOUT 63 YEARS, OCC: BUSINESS
R/O. NEAR CIVIL HOSPITAL,
BIDAR-585401.
...RESPONDENT
(BY SRI. AMEET KUMAR DESHPANDE SR. COUNSEL FOR
SRI. ANANTH S. JAHAGIRDAR ADV. FOR
C/R IN(CP32544/2023 AND 32545/2023))
THIS MFA IS FILED UNDER SECTION XXXXIII RULE 1(r)
OF CPC ACT, PRAYING TO A) CALL FOR THE RECORDS IN O.S.
NO. 229/2023 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL
JUDGE AND JMFC AT BIDAR. B) SET ASIDE THE IMPUGNED
ORDER DATED 08.12.2023 PASSED ON I.A NO.I IN O.S. NO.
229/2023 GRANTING INTERIM ORDER OF INJUNCTION
RESTRAINING THE APPELLANTS/DEFENDANTS FROM ALLEGED
INTERFERING IN THE SUIT SCHEDULE PROPERTY, AS ILLEGAL,
ARBITRARY AND CONTRARY TO LAW AND CONSEQUENTIALLY
TO ALLOW I.A NO. II PREFERRED UNDER ORDER XXXIX RULE 4
OF CODE OF CIVIL PROCEDURE BY SETTING ASIDE THE
INTERIM ORDER OF INJUNCTION IN O.S. NO. 229/2023, AND
ETC. C) PASS AN ORDER AS TO COSTS OF THE PRESENT
APPEAL AND ETC.,
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellants are before this Court aggrieved by the order passed on I.A.Nos.I and II in O.S.No.229/2023 dated 08.12.2023.
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2. The respondent herein has filed a suit seeking the relief of declaration of title, declaring that the plaintiff is the owner and possessor of the suit land i.e., plot No.31 in Sy.No.57 of village Guller Haveli, Bidar and also a decree of perpetual injunction restraining the defendants from causing illegal interference with the possession of the plaintiff's suit land.
3. The specific case of the plaintiff as per the plaint is that he is the absolute owner and possessor of the suit schedule property as described in the schedule prior to the year 1963. He has been exercising all the rights to the knowledge of everyone including the defendants and the predecessor in title. The plaintiff was in need of land by the road side, has a plan to construct a huge building for the purpose of keeping the literature of Sri. Guru Nanak Deva Ji. One Sri. Lingappa son of Sri. Sangappa came forward and gave the suit land for the noble cause. Thereafter, they had invited the Hon'ble Speaker of Lok- Sabha. Accordingly, he visited the place of Gurudwara and -4- NC: 2024:KHC-K:1675 MFA No. 200149 of 2024 installed the foundation stone within the fencing made by the then President. The same is in existence even till now. It was published in all the newspapers. It is stated that in the meantime the dispute cropped between late Sri. Sardar Manohar Singh and Smt. Ammatul Fatima and also Lingappa who has given the property to the plaintiff. In that regard the criminal cases were also registered. In this process late Sri. Sardar Manohar Singh had filed a civil suit before the Munsiff Court at Bidar against the said Lingappa
- Defendant No.1, Joga Singh - defendant No.2 and Smt. Ammatul Fatima - defendant No.3, for declaration of title and perpetual injunction in O.S.No.105/1967.
4. During the pendency of the said suit, the parties have entered into compromise and filed a compromise memo. Basing on the said compromise petition, the compromise decree is passed by the Court on 30.07.1968. As per the said compromise, the defendants admitted that plaintiff is the exclusive owner and possessor of the suit land in Sy.No.57 measuring 09 acres 04 guntas. It is -5- NC: 2024:KHC-K:1675 MFA No. 200149 of 2024 decided that the plaintiff should gift away an area measuring North - South 80 feet in length and East - West 65 feet in breath for construction of Gurunanak Library Building. That extent of 12 feet towards North from northern corner of the existing foundation of the Library Building, 12 feet towards South from southern corner from the same foundation building, 12 feet towards East from eastern corner of the said foundation building and towards West is extending till Gurunanak Library Road. Over this foundation of the building, the foundation stone was fixed by the hands of the Hon'ble Speaker of the Lok-Sabha, which is in existence. It is also agreed upon that the plaintiff will execute a Registered Gift Deed in favour of the Gurudwara Saheb, Bidar to the extent of the said site. Both the defendants No.1 and 2 have no objections, if the suit is decreed as prayed for without costs excluding the area mentioned. Accordingly, a compromise decree was passed. It is stated that ever since the defendants are in possession of the property and they have dugged a bore- -6-
NC: 2024:KHC-K:1675 MFA No. 200149 of 2024 well in the suit land and drew the water for the use of functional wall which is opposite to the suit land.
5. While the things stood thus, the said Sri. Sardar Manohar Singh passed away on 22.04.2022. After the death of Sri. Sardar Manohar Singh, his wife i.e., the defendant No.1 her grand daughters who are the defendants No.2 and 3 started denying the title of the plaintiff on the instigation of unsocial elements. As the defendants were denying the title of the plaintiff, they came before the Court seeking declaration. It is also stated in the plaint that the plaintiff's possession is long standing and enjoying the title by adverse possession, denying the title of the predecessor to their knowledge. The defendant No.1's husband late Sri. Sardar Manohar Singh did not deny the title of the plaintiff in the suit land. Along with the suit, the plaintiff has filed the I.A. seeking temporary injunction restraining the defendants from interfering with their possession of the property. In the application that was filed seeking interim injunction what -7- NC: 2024:KHC-K:1675 MFA No. 200149 of 2024 has been stated in the plaint it has been reiterated and stated that the plaintiff has made out a prima-facie case and balance of convenience is in his favour. The defendants who kept quite till date on instigation of some unsocial elements started illegal interference with the possession of the plaintiff over the suit land. If the defendants are successful in their efforts, it would cause irreparable loss to the plaintiff and sought for an injunction.
6. The defendants have filed the written statement as well as counter to the I.A. It is stated that the husband of defendant No.1 had purchased the entire suit land measuring 09 acres 04 guntas in Sy.No.57 of Guller Haveli, now called as Gurunanak Colony, through registered sale deed from one Smt. Ammatul Fatima, who was the previous owner of the land as per the occupancy rights granted in her favour on 02.01.1963 by the Special Deputy Commissioner, Gulbarga under the Inam Abolition Act. The Registered Sale Deed has been executed in -8- NC: 2024:KHC-K:1675 MFA No. 200149 of 2024 favour of the defendant No.1's husband on 09.07.1965. The mutation was also carried out in his famous. The said land was converted into Non-Agricultural Land and also a layout was approved by the Town Planning Authority, Bidar on 12.01.1977. The husband of the defendant No.1 had died on 22.04.2022 and she succeeded to the property as the legal heir and successor, the mutation also had taken place in the name of defendant No.1 on 31.09.2023 by the CMC, Bidar.
7. It is the case of the defendant that they have been in possession of the property ever since purchase of the same. Though, it is stated that a foundation was laid on 03.02.1965, the defendants have been in possession of the property from a long time. The plaintiff wants to grab the property belonging to the defendants. It is stated that the compromise decree was not acted upon and the plaintiff had not sought for any execution. It is stated that they wanted to construct a commercial building over the suit plot. For this they have sought permission for -9- NC: 2024:KHC-K:1675 MFA No. 200149 of 2024 converting the suit plot from residential to commercial. They have filed an application dated 11.06.2018. The Bidar Urban Development Authority has given a written reply dated 15.09.2018 calling upon them to furnish all the necessary documents. Thereafter, they have got layout approval and also placed the same before the Court. It is their case that they have been in possession of the property and the plaintiff has failed to show his possession or the prima-facie title, is not entitled for injunction. The Court below by order impugned dated 08.12.2023 has allowed the I.A. and granted injunction restraining the defendants from interfering and obstrcting with the long standing possession of the plaintiff over the suit plot till disposal of the suit.
8. The Court below while granting the injunction has observed that on behalf of the plaintiff, he is relying on a compromise decree passed in O.S.No.105/1967 dated 30.07.1968 wherein the husband of the defendant No.1 had agreed to execute a gift deed in favour of the plaintiff.
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NC: 2024:KHC-K:1675 MFA No. 200149 of 2024 It is also his case that the husband of defendant No.1 never executed agreement of bond in favour of the plaintiff.
9. In support of his case the plaintiff had produced the plaint and written statement in O.S.No.105/1967, compromise petition and compromise decree, record of right of Sy.No.57, photos, pen-drive and agreement dated 15.07.1966, entire order sheet in O.S.No.46/2006, reply letter dated 10.02.1965 from Sri. Hukum Singh, C.C. of letter from Gurudwara Saheb Nanak Jhara Bidar dated 05.02.1965 to Sri. Hukum Singh Speaker of Lok-Sabha, C.C. of the Tour Program, the ensuing visit of the Speaker of Lok-Sabha to Guru Nanak Jeera Saheb, Bidar dated 25.12.1964, C.C. of letter from the Private Secretary to the Speaker Lok-Sabha dated 22.01.1965, C.C. of letter regarding Tour Program from Private Secretary to Sri. Hukum Singh, Speaker Lok Sabha dated 22.01.1965 which is circulated to all the concerned Chief Secretary to the Government.
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10. Considering all these documents, the Court below observed that on perusal of the documents produced by the plaintiff it clearly reveals that the then Speaker has come to lay the foundation stone and the compromise decree also shows that the particular land was excluded and the plaintiff has to execute the gift deed. The Court below also observed that as per the compromise decree they have got the gift deed in respect of the suit land from Sardar Manohar Singh. As such the entire extend stood in the name of Sardar Manohar Singh. The Court below observed the agreement dated 15.07.1966 prima facie establishes the fact that the foundation of library building and foundation stone fixed by the then Honb'le Speaker and the intention of both the parties. The Court below recorded the finding with regard to the documents that are filed by the defendants and thereafter the Court below gives a finding that on perusal of the entire documents produced by the plaintiff it shows that he is in possession and enjoyment of the entire suit
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NC: 2024:KHC-K:1675 MFA No. 200149 of 2024 property and he has prima facie established that the defendants are interfering with the peaceful possession of the suit property and hence the plaintiff has proved his prima facie case. When it comes to balance of convenience. The Court below has observed that the inconvenience greater is to be measured by the Court while granting or refusing to grant injunction. If on weighing the competing probabilities and possibilities of likelihood of injury, if the Court considers that pending the suit the injury the defendants by giving temporary injunction to the plaintiff is lesser than the injury to the plaintiff by rejecting temporary injunction, the injunction has to be issued. The court further observed that in the instant case on perusal of the material placed on record the plaintiff has filed a suit for injunction and also IA for interim injunction seeking a direction to the respondents not to interfere with the suit property. Since the defendants are illegally trying to dispossess the plaintiff by encroaching the suit property as the suit property is a
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NC: 2024:KHC-K:1675 MFA No. 200149 of 2024 vacant plot, it shows the illegal act of the defendants over the suit schedule property and granted injunction.
11. Learned counsel appearing for the appellants/ defendants submits that even as per the compromise decree the plaintiff is declared to be owner and possessor of the land in Sy.No.57 measuring 9 acres 4 guntas and out of the said land the plaintiff has to execute a registered gift deed in favour of Gurudwara Sri Nanak Jhira Saheb, Bidar, for the construction of library building. He submits that the said compromise decree admittedly has not been acted upon and no gift deed is executed by the husband of the first defendant. He submits that except the documents which are much prior to the compromise decree that is 1965 no other documents are filed by the plaintiff to show that he is in possession of the property. It is submitted that when an application is filed seeking interim injunction the first and the foremost the plaintiff has to show that he has been in possession of the property as on the date of the petition. Except the tour program and the laying of
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NC: 2024:KHC-K:1675 MFA No. 200149 of 2024 stone by the then Speaker, which is much prior to the suit in O.S. No.105/1967 and which is the cause of action for filing the earlier suit, no other documents were filed. It is submitted that the Court below basing on these documents cannot come to a conclusion that the plaintiff has been in continuous possession of the property and he is entitled for injunction. Admittedly, plaintiff is declared as owner of the property and no gift deed is executed in favour of the respondent. It is submitted that there cannot be any injunction against the true owner. The Court below has failed to discuss any of the documents that are relied on by the defendants. The Court below has failed to appreciate the same, when the documents filed by the defendants show that they have been in continuous possession of the property till date, the Court below failed to consider the parameters for granting interium injunction. He submits that It is settled by the Hon'ble Apex Court and this Court in catena of cases. It is submitted that under the guise of this temporary injunction order granted by the Court below the plaintiff in
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NC: 2024:KHC-K:1675 MFA No. 200149 of 2024 fact is making his efforts to interfere with the possession of the defendants. Plaintiff is not entitled for the equitable relief of injunction.
12. Learned Senior Counsel appearing on behalf of the respondent/plaintiff submits that they have been in possession of the property right from 1964, a foundation stone was laid for construction of library hall of the proposed building and the then Speaker has come to lay a foundation stone. later when the husband of the 1st defendant raised dispute and filed a suit and in that suit a compromise has been entered and as per the compromise decree the husband of the defendant has to execute a gift deed. He submits that though the said gift deed is not executed they have been in continuous possession of the property right from 1964 and the husband of the defendant had never interfered with the possession of the plaintiff. After his death in the year 2022 the defendant has started interfering with the possession which made the plaintiff to approach the Court seeking declaration.
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NC: 2024:KHC-K:1675 MFA No. 200149 of 2024 Learned Senior Counsel further submits that though the compromise decree is not acted upon or gift deed is not executed, but still the plaintiff remained to be in continuous possession of the property. A person who is in settled possession of the property can claim injunction against the true owner. In this regard learned Senior Counsel has relied on the judgment of the Keral High Court in case of KARTHIYANI AMMA V. GOVINDAN1, , para No.7 reads thus:
"7. The ultimate position, therefore, reduces itself to this: Can a person in possession without title sustain a suit for injunction against the rightful owner if he proves possession? Yes. In this case, plaintiff is found to be in possession. On the finding, he should be granted the injunction prayed for. A person in possession can be evicted only in due process of law. Even the rightful owner cannot eject him with force. If he cannot be evicted with force, he continues to be in possession and he can resist invasion of 1 IAR 1980 KERALA 224:(1980) ILR(KER) 2 KER 369
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NC: 2024:KHC-K:1675 MFA No. 200149 of 2024 his possession by everyone including the rightful owner. If the rightful owner threatens his peaceful possession, he can approach Courts of Law and pray for the equitable relief of injunction to protect his possession."
13. He also relied on the judgment of this Court in the case of Basavaraj Shivaramagouda Patil vs. Mahesh2, , para 10 reads thus:
"10. In view of these principles laid down in these decisions it is clear that the plaintiff who is in possession of the suit property under a colour of right, even assuming he is in unlawful possession the defendant has no right to take the law into his own hands and dispossess him except in accordance with law, even assuming that the defendant is the true owner of the suit property. Therefore the lower Appellate Court gravely erred in holding that the plaintiff is in unauthorized possession of the suit property and therefore is not entitled to an order of temporary injunction and the 2 ILR1998KAR419
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defendant's action in breaking open
portions of the compound wall and
putting up pillars therein are justifiable. Taking such a view would be an open invitation for the litigants to take law into their own hands."
14. He also relied on the judgment of Hon'ble Supreme Court reported in case of Ravindra Kaur Grewal and others v. Manjit Kaur and others WITH Radhakrishna Reddy (D) Through Lrs. V G. Ayyavoo and others3, , Para Nos.46, 48, 49 and 61 read as under:
"46. The conclusion reached by the High Court is based on an inferential process because of the language used in the III rd Column of Article 65. The expression is used, the limitation of 12 years runs from the date when the possession of the defendant becomes adverse to the plaintiff. Column No.3 of Schedule of the Act nowhere suggests that suit cannot be filed by the plaintiff for possession of immovable property or any interest therein 3 AIR 2019 SUPREME COURT 3827
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NC: 2024:KHC-K:1675 MFA No. 200149 of 2024 based on title acquired by way of adverse possession. There is absolutely no bar for the perfection of title by way of adverse possession whether a person is suing as the plaintiff or being sued as a defendant. The inferential process of interpretation employed by the High Court is not at all permissible. It does not follow from the language used in the statute. The large number of decisions of this Court and various other decisions of Privy Council, High Courts and of English courts which have been discussed by us and observations made in Halsbury Laws based on various decisions indicate that suit can be filed by plaintiff on the basis of title acquired by way of adverse possession or on the basis of possession under Articles 64 and 65. There is no bar under Article 65 or any of the provisions of Limitation Act, 1963 as against a plaintiff who has perfected his title by virtue of adverse possession to sue to evict a person or to protect his possession and plethora of decisions are to the effect that by virtue of extinguishment of title of the owner, the person in possession acquires absolute title and if actual owner dispossesses
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NC: 2024:KHC-K:1675 MFA No. 200149 of 2024 another person after extinguishment of his title, he can be evicted by such a person by filing of suit under Article 65 of the Act. Thus, the decision of Gurudwara Sahib v. Gram Panchayat, Sirthala (supra) and of the Punjab & Haryana High Court cannot be said to be laying down the correct law. More so because of various decisions of this Court to the contrary.
48. The statute does not define adverse possession, it is a common law concept, the period of which has been prescribed statutorily under the law of limitation Article 65 as 12 years. Law of limitation does not define the concept of adverse possession nor anywhere contains a provision that the plaintiff cannot sue based on adverse possession. It only deals with limitation to sue and extinguishment of rights. There may be a case where a person who has perfected his title by virtue of adverse possession is sought to be ousted or has been dispossessed by a forceful entry by the owner or by some other person, his right to obtain possession can be resisted only when the person who is seeking to protect his possession, is able
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NC: 2024:KHC-K:1675 MFA No. 200149 of 2024 to show that he has also perfected his title by adverse possession for requisite period against such a plaintiff.
49. Under Article 64 also suit can be filed based on the possessory title. Law never intends a person who has perfected title to be deprived of filing suit under Article 65 to recover possession and to render him remediless. In case of infringement of any other right attracting any other Article such as in case the land is sold away by the owner after the extinguishment of his title, the suit can be filed by a person who has perfected his title by adverse possession to question alienation and attempt of dispossession.
61. Resultantly, we hold that decisions of Gurudwara Sahab v. Gram Panchayat Village Sirthala (supra) and decision relying on it in State of Uttarakhand v. Mandir Shri Lakshmi Siddh Maharaj (supra) and Dharampal (dead) through LRs v. Punjab Wakf Board (supra) cannot be said to be laying down the law correctly, thus they are hereby overruled. We hold that plea of acquisition of title by adverse possession can be taken by plaintiff
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NC: 2024:KHC-K:1675 MFA No. 200149 of 2024 under Article 65 of the Limitation Act and there is no bar under the Limitation Act, 1963 to sue on aforesaid basis in case of infringement of any rights of a plaintiff."
15. It is further submitted that the Court below having exercised the discretion has felt that the plaintiff is entitled for injunction. It is submitted that when an appeal is filed the scope of appeal and the adjudication of the appellate Court is very limited. Another view is possible that itself cannot be a ground for the appellate Court to reverse the orders passed by the Court below. In this regard, he relied on the judgment of the Hon'ble Supreme Court in the case of WANDER LTD. V. ANTOX INDIA P. LTD.,4, para Nos. 13 and 14 read as under:
"13. On a consideration of the matter, we are afraid, the Appellate Bench fell into error on own important propositions. The first is a misdirection in regard to the very scope and nature of the appeals before it and the limitations on the powers of the 4 AIRONLINE 1990 SC 156:: 1990(2) ARBI LR 399
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NC: 2024:KHC-K:1675 MFA No. 200149 of 2024 Appellate Court to substitute its own discretion in an appeal preferred against a discretionary order. The second pertains to the infirmities in the ratiocinations as to the quality of Antox's alleged user of the Trade-Mark on which the passing-off action is founded. We shall deal with these two separately.
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. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph (1960) 3 scr 713 (scr)721"
16. He has relied on another judgment of the Hon'ble Apex Court in the case of M/s. Steer
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NC: 2024:KHC-K:1675 MFA No. 200149 of 2024 Engineering Private Limited, Bengaluru, v. M/s. Glaxosmithkline Consumer Healthcare Holdings (US) LLC, United State of America and others5 wherein para 32 reads thus:
"The scope of interference at the hands of Appellate Court against an order refusing to grant discretionary and equitable relief of temporary injunction is limited, as distinguished from an appeal against a final judgment in the suit. It is settled law that unless the discretion exercised by the trial Court is shown to have been exercised in a perverse manner or unless the order is shown to have been illegal, the appellate Court will be slow to interfere with such a discretionary order. We concur with the finding recorded by the learned trial Judge that a prima facie case was not made out by the appellant for grant of interim injunction. In this view of the manner, we are of the considered view that no interference is called for with the impugned order and the 5 2020(1) AKR 147
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appeal deserves to be dismissed.
Accordingly, we pass the following order."
17. He also relied on the judgment of Hon'ble Apex Court in case of Skyline Education (Pvt.) Ltd. v. S.L. Vaswani and Anr.6, wherein, para 16 reads as under:
"The ratio of the above noted judgments is that once the court of first instance exercises its discretion to grant or refuse to grant relief of temporary injunction and the said exercise of discretion is based upon objective consideration of the material placed before the court and is supported by cogent reasons, the appellate court will be loath to interfere simply because on a de novo consideration of the matter it is possible for the appellate court to form a different opinion on the issues of prima facie case, balance of convenience, irreparable injury and equity."6
AIR 2010 SUPREME COURT 3221
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18. Relying on these judgments, learned Senior Counsel submits that the scope of interference with the discretionary order passed by the Court below is very limited. Alternatively, it is submitted that, in fact the plaintiff who has perfected his title by adverse possession and has been in possession continuously can also plead injunction against the true owner and also can protect his possession. It is submitted that the Court below had rightly considered all aspects and granted the injunction and interference of this Court is not called for.
19. Having heard the learned Counsel and the Senior Counsel perused the entire material on record.
20. In this case the plaintiff has filed a suit for declaration and injunction. In that, IA is filed for interim injunction. The whole case of the plaintiff is that right from 1964 they are in possession of the property and in 1968 a compromise decree was passed and by virtue of the compromise decree the defendant's husband has to
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NC: 2024:KHC-K:1675 MFA No. 200149 of 2024 execute the gift deed in favour of defendants, admittedly, the compromise decree is not acted upon, but according to the plaintiff he continued to be in possession of the property. It is the plaintiff case that whether the gift deed is executed or not, the plaintiff who is in continuous possession of the property can maintain his possession and also seek injunction against the true owner of the property. This Court has observed that in the plaint or in the petition filed under Order XXXIX Rules 1 and 2 of CPC, the plaintiff has not stated what is the interference of the defendants on what date and how there was interference by the defendants with the possession of the plaintiff. What has been stated is that, after the death of first defendant's husband, the defendants started interfering. When it comes to the case of the defendants, the defendants right from 1968 till date they have placed several documents before the Court below to show that they have been in continuous possession of the property, particularly, in the light of the layout that is granted and the permissions that are obtained with an intention to
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NC: 2024:KHC-K:1675 MFA No. 200149 of 2024 construct a commercial building, the nature of the land has been converted from residential to commercial. When it is the case of the plaintiff that he is in possession of the property, it is for the plaintiff to place the necessary documents before the court and also by leading cogent evidence he has to prove that he is in possession of the property and the defendant is interfering with his possession. Except the documents which are prior to 1968 i.e., compromise decree and laying of foundation and office documents relating to it no other documents have been filed before the court below. It is an admitted fact that no gift deed is executed in favour of the plaintiff. There is no dispute about the legal position as submitted by the learned counsel that a person who is in uninterrupted possession of the property cannot be disposed by the true owner himself without following the due process of law. But here the issue is about the possession and by what documents and by leading what evidence prima facie the plaintiff could prove that he is in possession of the property. The court below has given a
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NC: 2024:KHC-K:1675 MFA No. 200149 of 2024 finding that he is in continuous possession of the property basing on the documents prior to 1968 and in the considered opinion of this Court the Court below went wrong in observing that plaintiff has been in long standing possession when there is nothing on record to show what has happened after the compromise decree is passed by the Civil Court in the year 1968. Whether the entitled for a relief of declaration what are the consequences of the compromise decree would be decided by the Court below during the trial and on the merits of the case and this Court is not inclined to go to those aspects.
Grant of injunction is an equitable relief while considering the application under 039 Rule i.e., the court has to look at the 3 basic elements i.e., existence of prima facie case, balance of convenience and irreparable loss apart from these three ingredients court has to look at the conduct of the parties. In this case after the compromise decree was passed by the court in the year 1968. It was not acted upon and no registered sale deed is executed in
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NC: 2024:KHC-K:1675 MFA No. 200149 of 2024 favour of the plaintiff. Now the period for seeking the execution of the decree is bared by time. Defendant had obtained layout and several permission from the minicipal authorities and also converted the land. The plaintiff kept quiet from 1968 to 2023 allowing two defendant to deal with two property. The plaintiff without even mentioning how and when the interferance is by the defendant is not entitled for Interim Injunction. The court below without any evidence and basis had granted Interim Injunction and the same is liable to be set aside.
21. The contention of the learned Senior Counsel with regard to the scope of this mischellaneous appeal. It is submitted that while dealing with an appeal filed against the order of injunction he has relied on the judgment of the Hon'ble Apex Court in case of WANDER LTD., referred supra.
An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reassess the material and seek to
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NC: 2024:KHC-K:1675 MFA No. 200149 of 2024 reach a conclusion different from the one reached by the court below if the one reached by the 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.
The Hon'ble Apex Court has held that the appellate courts will not interfere with the exercise of discretion of the court at the first instance. To substitute its own discretion except where the descetion has been exercised arbitrarily, capriciously or perversely and where the court below had ignored the settled principles of law regulating
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NC: 2024:KHC-K:1675 MFA No. 200149 of 2024 grant of interlocutory injunction. It is observed that an appeal against exercise of discretion is said to be an appeal on principle. The 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 the Court below by reasonable possible on the material. The other judgments relied on by the learned Senior Counsel are also on the similar line.
22. In the considered opinion of this Court, the Court below has failed to follow the settled law and the discretion that is exercised by the Court below is arbitrary. The Court below has failed to consider the basic elements for grant of Interim Injunction. When the Court has given finding about continuous possession, on what basis the Court below has given such finding is not forthcoming from the order impugned this Court.
In the light of the above discussion the impugned order passed on IA No.I in O.S. No.229/2023 dated
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NC: 2024:KHC-K:1675 MFA No. 200149 of 2024 08.12.2023 by the Additional Senior Civil Judge and JMFC, Bidar, is set aside.
Any of the observation made by this court while deciding this appeal shall not be construed as an expression of this court and the court below shall proceed with the matter basing on the merit of it.
Sd/-
Judge KJJ/SBS List No.: 1 Sl No.: 1 CT:VD