Karnataka High Court
Basavaraj Shivaramagouda Patil vs Mahesh on 21 November, 1997
Equivalent citations: ILR1998KAR419
Author: C.N. Aswathanarayana Rao
Bench: C.N. Aswathanarayana Rao
ORDER
1. This is a plaintiffs revision petition. The plaintiff-petitioner filed a suit in O.S. No. 377 of 1997 against the respondent-defendant for a permanent injunction restraining him from encroaching upon the suit property. He also prayed for a decree for mandatory injunction directing the defendant to restore the compound wall belonging to the plaintiff to its original condition at his cost. The suit property is a strip of land measuring 5' east to west and 124' north to south situated in between the properties of the parties.
2. Along with the plaint, the plaintiff filed an application I.A. I for an order of temporary injunction. The application having been allowed, the defendant preferred an appeal against that order in M.A. 28 of 1997. The Lower Appellate Court, by an order dated 19-9-1997 allowed that appeal and reversed the order passed by the Trial Court. Being aggrieved by that order, the plaintiff has preferred this revision petition.
3. The plaintiffs case in brief is as follows:--
He purchased the property bearing C.T.S. No. 103/B3 + 103/B4 /B of C.T.S. ward No. III situated in Vikas Nagar, Gokul Road, Hubli, measuring 408 and 1/9 sq. yard from his vendor Shankar in the year 1990 under a registered sale deed dated 13-3-1990 and has been in possession of the same running an Auto Service Centre called as Mahalaxmi Auto Service Centre in the said property. The said property did not include the suit property. Since the plaintiff found that the property which he purchased from Shankar under the sale deed dated 13-3-1990 was inadequate for his purposes he entered into an agreement of sale with his vendor Shankar for purchasing an additional space of 5' x 124' towards the west of the plaintiffs property. The vendor executed the agreement of sale dated 10-7-1992 and put the plaintiff in possession of that additional space which is the subject matter of the agreement of sale and which is the suit property. It is alleged the plaintiff constructed a compound wall towards the western end of his property which includes the suit property along north to south and has been in possession of the entire property belonging to him.
4. The defendant purchased the open space which is adjacent to the suit property towards the western side from the same vendor Shankar in the year 1995. The said property of the defendant bears C.T.S. No. 103 + 103/B3, B4/A2. It is alleged that the defendant who is a Doctor obtained permission from the municipality for putting up a construction on his property and started digging. It is alleged that all of a sudden on 23-7-1997 when the plaintiff was out of station the defendant with the help of his henchman in the night demolished portions of the compound wall belonging to the plaintiff with an intention to put up pillars therein. It is alleged inspite of resistance by the plaintiff the defendant has put up the pillars. It is alleged on a complaint given by the plaintiff to the Municipal Authorities they inspected the spot and being convinced that the building being constructed by the defendant is in violation of the building bye-laws directed the defendant not to proceed with the further construction but the defendant is continuing the work illegally. Hence the suit for the reliefs of permanent and mandatory injunctions.
5. The defendant in his written statement while did not deny the sale deed dated 13-3-1990 in favour of the plaintiff and the fact that he is running an Automobile Garage in the said property denied the execution of the agreement of sale dated 10-7-1992 and the allegation that Shankar delivered possession of the suit property to the plaintiff under the said agreement and the fact that the plaintiff had constructed a compound wall at the western end of the suit property. On the other hand he contended that he purchased 398 sq. yards in the vacant space adjacent to the property purchased by the plaintiff under the sale deed dated 13-3-1990 from the same vendor under a registered sale deed dated 10-5-1996 and this 398 sq. yards which he purchased from Shankar includes the suit property also. It is the contention of the defendant that while actually the property was purchased by his father from Shankar, he took the same on a term lease for a period of 30 years from his father and started the construction of a Nursing home. The defendant has denied that he is trying to encroach upon the plaintiffs property and damaged portions of the compound wall on the western side of his property. It is his case that the western compound wall which is an old wall had been built by the vendor Shankar himself and the defendant's property extends beyond this western wall to an extent of 5' and therefore the suit property is a part and parcel of the defendant's property and the defendant has not committed any illegality in putting up the construction. He has denied the allegation that the construction being put up by him is opposed to the building bye-laws. The defendant has also contended that the suit for mere injunction without a prayer for a declaratory decree is not maintainable. The agreement of sale in favour of the plaintiff is barred by time and he does not derive any title thereunder. The defendant contended that it is the defendant who has been in possession of his property including the suit property from the date of sale in his favour. He also contended that he has invested already a sum of Rs.2,50,000/- for the construction, the pillars have been erected and the construction work is going on. He contended if at this stage, there is to be an order of temporary injunction he would be put to great hardship.
6. In the grounds urged in the revision petition the petitioner-plaintiff has contended that the order passed by the lower Appellate Court is arbitrary and illegal. It is contended that the lower Appellate Court came to a wrong conclusion that the plaintiff is not in possession of the suit property which is contrary to the facts and the documentary evidence placed on record. It is contended that the lower Appellate Court has set-aside the Trial Court's order without any convincing or cogent reasons and it is opposed to the well-known propositions of law laid down by this Court and the Supreme Court.
7. I have heard the learned Counsel for the parties and have perused the records. Before entering into the merits of the respective contentions urged by the learned Counsel for the parties it would be necessary to know the scope of a miscellaneous appeal before the lower Appellate Court and the scope of Section 115, Civil Procedure Code before this Court. In this regard the learned Counsel for the petitioner referred to a decision reported in Smt. Lalithakshi Annadanagowda v Sadashivappa Basappa and Another. Though it was a reverse case in as much as in the Trial Court injunction had been refused and that order was reversed in the lower Appellate Court, the principles enunciated therein clearly brings out the scope of a miscellaneous appeal and a revision petition under Section 115 of the CPC. It has been held therein as follows:--
"Where in an application by the plaintiff for a temporary injunction against the defendant Trial Court has duly considered all matters and in the proper exercise of its judicial discretion passed an order refusing the application for temporary injunction, the Appellate Court has no jurisdiction to interfere with the order passed by the Trial Court merely on the ground that another view was possible on the point. The First Appellate Court had no jurisdiction to interfere with the discretionary order passed by the Trial Court, simply because, it was reasonably possible to take another view on the facts of the case. The First Appellate Court has substituted its own discretion substituting the judicial discretion exercised by the Trial Court. It could not do so. It had to stay its hands and confirm the order passed by the Trial Court in the circumstances".
Further in Para 19, it has been held as follows:--
"In the circumstances, therefore, the First Appellate Court clearly exceeded its jurisdiction and exercised its jurisdiction in disturbing the discretionary order passed judicially by the Trial Court. The Appellate Court has acted as if it is the Trial Court exercising its jurisdiction instead of exercising the appellate power, on the well established principles cited above. In such circumstances, not only has this Court the power to interfere with such an order of the First Appellate Court but also it becomes its bounden duty to interfere with such an order of the Appellate Court under Section 115 of the Civil Procedure Code".
8. Bearing in mind these principles let me consider the respective contentions of the parties in this revision petition. It was contended by the learned Counsel for the petitioner that the Trial Court after considering the material placed on record and the facts and circumstances of the case had rightly come to the conclusion that the plaintiff had established his lawful possession over the suit property as on the date of suit, but the lower Appellate Court has reversed that finding on grossly wrong reasonings and therefore it is a jurisdictional error. On a careful perusal of the material on record I find that there is much force in this contention. The photographs produced by both the parties before the Trial Court show the existence of a compound wall and the fact that portions of it have been broken open to make way for constructing pillars. While according to the plaintiff this compound wall has been put up by him after the agreement of sale was executed by the vendor in his favour and the suit property was put into his possession. According to the defendant this wall had been constructed by the vendor himself, it is an old wall and including this wall upto the extent of 5' towards the east the vendor has sold the property to him and therefore the wall belongs to him and it is a part of his property. These are questions of fact which have to be gone into during trial. But at this stage, while considering an application for temporary injunction, it is important to note that in support of the defendant's case that the wall already existed which had been constructed by the vendor Shankar there is absolutely no material on record. On the other hand the agreement of sale dated 10-7-1992 relied on by the plaintiff-petitioner very much supports his case that it is he who has constructed this compound wall on the western side of his property. The plaintiff has produced a copy of the agreement of sale. At page 3 in para 4(i) of the said document there is a recital which reads as follows:--
"The actual possession of the schedule property will be delivered by vendor to purchaser immediately after execution of this agreement in order to enable the purchaser to carry on his business smoothly. The purchaser is at liberty to construct the compound wall and make use of the scheduled property. The expenses incurred for the construction of the compound wall shall be borne by both the vendor and the purchaser. It is agreed that the vendor and the purchaser shall have equal share and rights towards north and south in the said compound wall".
It is very important to remember that though in the written statement in Para 6 the defendant has denied the execution of this agreement of sale, in the subsequent para he has contended that because the agreement of sale has become time barred it does not convey any title in respect of the suit property in favour of the plaintiff. At the time of arguments the learned Counsel for the respondent did not seriously dispute the execution of the agreement of sale. Therefore from the recitals in the agreement of sale the probabilities are that it is the plaintiff who has constructed the western compound wall and not his vendor. The defendant has not denied that he has broken open portions of this compound wall in order to put up pillars. Therefore prima facie the plaintiff has a triable case that he is in possession of the suit property and the defendant is trying to interfere with his possession. The Trial Court had rightly come to the conclusion on this aspect. In reversing the finding of the Trial Court on this aspect the lower Appellate Court has relied upon a notice produced by the defendant dated 31-12-1996 issued by the CTS Authorities under which the date for taking the measurements of the property is fixed as 6-1-1997. The document goes to show that the plaintiff also has been notified and was present when the measurements were taken. The defendant has also produced the sketch prepared by the CTS Authorities at that time. In this sketch the suit property is shown in red colour and it is mentioned therein that this portion marked in red colour has been encroached upon by the plaintiff over the defendant's property. Relying upon this document the lower Appellate Court has observed that the plaintiffs possession over the suit property is not legal as he has encroached upon the same. It is not possible to know as to how the lower Appellate Court could have jumped to that conclusion only on the basis of this document. At best it would show the possession of the plaintiff over the suit property, whether he has encroached upon the defendant's property, whether the suit property belongs to defendant are questions of fact which are yet to be decided in the suit after trial after giving an opportunity to both the parties to adduce their evidence. Though the suit is for permanent and mandatory injunctions only, it would be necessary for the Court to incidentally go into the question of title also in order to decide as to whether the plaintiff would be entitled to the reliefs prayed for in the suit. In Para 11 of the impugned order the lower Appellate Court has observed as follows:--
"Only contention of the plaintiff is that defendant cannot take possession of this area without due process of law. This may be correct but as on the date of the filing of the suit the facts of the case prima fade proved that defendant has already taken possession of this land and he has constructed pillars and started construction".
Obviously, the lower Appellate Court has fallen into the error that the defendant had obtained possession of the suit property. There is absolutely no material on record in support of such a view, except the notice and the sketeh prepared by the CTS Authorities a few months before the institution of the suit. But the recitals in the agreement of sale which has come into existence in the year 1992 itself clearly go to show that it is the plaintiff who has been in possession of the suit property and it is he who has put up the western compound wall on the suit property. It was submitted by the learned Counsel for the plaintiff-petitioner that the measurements taken by the CTS Authorities have been challenged by the plaintiff and there is a stay order in that proceeding. The petitioner has produced a copy of the stay order dated 7-10-1997 which goes to show that the measurements taken on 6-1-1997 have been stayed pending disposal of the appeal preferred by the plaintiff.
9. In Para 11 of the impugned order the lower Appellate Court has further observed that the plaintiff being a trespasser cannot seek injunction against the true owner. Supporting this reasoning of the lower Appellate Court the learned Counsel for the respondent relied upon a decision reported in 1971(1) Mys. L.J. Sh. N. 130 (sic). It has been held therein as follows:--
"The principle is that there must be a prima facie material before the Court to show that a person claiming an injunction against a true owner has lawful possession and so a right to seek an injunction order against the true owner".
This principle has no application to the facts of the case on hand at this stage. While applying this principle the lower Appellate Court has committed the mistake of presuming that the defendant is the true owner of the suit property. As rightly submitted by the learned Counsel for the petitioner, who is the true owner of the suit property is still to be decided. The learned Counsel for the respondent argued that all that the plaintiff is claiming is a right under an agreement of sale which is time barred and such a document cannot create any right in favour of the plaintiff. In support of this submission she relied upon a decision reported in Radhakishan Laxminarayan Toshniwal v Shridhar Ramachandra Alshi, it has been held therein as follows:--
"Under Section 54 of the Transfer of Property Act a contract for sale does not of itself create any interest in or charge on immovable property. Where, therefore, the parties enter into a mere agreement to sell, it creates no interest in favour of the vendee and the proprietary title does not validly pass from the vendors to the vendee and until that is completed no right to enforce pre-emption arises. A suit for pre-emption brought on the basis of such an agreement is without any cause of action as there is no right of pre-emption in the plaintiff which could be endorsed under the Code".
While there can be no dispute about this proposition of law, it may be seen that the plaintiff has based the suit on his possessory right and would be entitled to a decree for permanent injunction if ultimately he establishes the facts alleged in the plaint. In this regard the learned Counsel for the petitioner-plaintiff relied upon two decisions. The cardinal principle in this regard had been laid down in the decision reported in Krishna Ram Mahale v Mrs. Shobha Venkat Rao, it has been held therein as follows:--
"It is well-settled law in this country that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse of law".
In M/s. Patil Exhibitors (Private) Limited v Bangalore City Corporation , it has been held as follows:--
"A lessee whose term has run out was entitled to injunction to restrain the landlord/lessor from resorting to extra-judicial and forcible methods for resumption of possession as firstly, though the possession of a quondam-lessee, who continues in possession without there being a bilateral, consensual act of holding over is not "lawful possession" but is merely "judicial possession", the landlord with the best of title cannot resort to forcible dispossession. Law in India does not recognize in the landlord a right of extra-judicial re-entry. Secondly, it is part of the concept of "Rule of law" that no claim to a right to dispossess by the use of force without recourse to procedure in accordance with law is recognized or countenanced by Courts. Such a right in the landlord cannot be recognized regardless of the question whether or not the lessee itself has any subsisting right to remain in possession. The protection that the Court affords is not of the possession which in the circumstances is litigious possession and cannot be equated with lawful possession --but a protection against forcible dispossession. The basis of relief is a corollary of the principle that even with the best of title there can be no forcible dispossession".
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 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.
11. The learned Counsel for the petitioner drew my attention to certain observations made by the lower Appellate Court in the impugned order. In para 12 at page 21, it has observed as follows:--
"In the present case it is defendant who is true owner of the property".
"Defendant is not claiming any property of the plaintiff. But he is within his area measuring 398 sq. yrd. So looking to the facts of the case it cannot be held that plaintiff will be put to loss and injury if temporary injunction is refused".
In para 24 at page 30, the learned Judge has observed as follows:--
"Plaintiff who has contended that he will be put to loss, in my opinion he is having a remedy by way of compensation or he can ask for the refund of the earnest money paid by him to the vendor because it is vendor who has played mischief in this case. He has entered into agreement with the plaintiff in the year 1992 but he has sold property including disputed area to the father of the defendant through registered sale deed in the year 1995. So remedy of the plaintiff lies against vendor not against defendant. As such it is upto the plaintiff to take proper step against his vendor and not against defendant".
It is unfortunate that the learned lower Appellate Court judge has made these observations. They amount to almost prejudging the issues involved in the suit. It is well establsihed that at the stage of considering an application for temporary injunction the Court should not enter into a mini trial and express opinion on the merits of the matter. In this regard the learned Counsel for the petitioner relied upon certain decisions. In Nagaraj v Krishna, it has been held therein as follows:--
"When deciding question of prima facie case not desirable or open to record decision on merit".
12. Another cardinal principle governing the issue of temporary injunction is that the Appellate Court should not lightly interfere with the discretion exercised by the Trial Court. In this regard the learned Counsel for the petitioner relied upon a decision in Smt. Lalitkakshi Annadanagowda's case, supra, it has been held therein as follows:--
"Wherein an application by the plaintiff for a temporary injunction against the defendant Trial Court has duly considered all matters and in the proper exercise of its judicial discretion passed an order refusing the application for temporary injunction, the Appellate Court has no jurisdiction to interfere with the order passed by the Trial Court merely on the ground that another view was possible on the point. The First Appellate Court had no jurisdiction to interfere with the discretionary order passed by the Trial Court, simply because, it was reasonably possible to take another view on the facts of the case. The First Appellate Court has substituted its own discretion substituting the judicial discretion exercised by the Trial Court. It could not do so. It had to stay its hands and confirm the order passed by the Trial Court in the circumstances".
A perusal of the impugned order goes to show that the lower Appellate Court has totally discarded this principle and has interfered with the discretionary order of the. Trial Court absolutely without any grounds.
13. In Para 23 of the impugned order at page 28 the learned lower Appellate Judge has observed that there is delay in filing the suit and therefore it disentitles the plaintiff to an order of temporary injunction. It is observed therein as follows:--
"So all these facts go to show that plaintiff has kept quiet till pillars are erected and cellar and first floor are completed. Thereafter at a later stage he has approached Court and has filed suit".
As submitted by the learned Counsel for the petitioner these observations are factually incorrect. The defendant has produced a copy of the sanctioned plan. It goes to show that the plan has been sanctioned on 8-7-1997. The suit has been filed on 26-7-1997. In view of these facts it is strange that the learned judge has observed that the plaintiff has approached the Court at a belated stage even after the first floor has been completed.
14. Lastly the learned Counsel for the respondent-defendant argued that, the defendant has invested more than two and half lakh rupees already into the construction and if at this stage the further construction is stopped he would be put to great hardship. That is one of the arguments accepted by the learned lower Appellate Court Judge also. It is not possible to accept such an argument. The defendant has to thank himself for the situation he has found himself now. In Para 7 of the plaint itself the plaintiff has stated that the Municipal Authorities visited the spot and found that the defendant is constructing the building violating the building bye-laws and therefore they directed the defendant to stop the construction work. The plaintiff has also produced a copy of this notice dated 24-7-1997 issued by the Commissioner, Hubli-Dharwad Corporation to the defendant. It is stated therein that the defendant has not left the necessary set-back area and therefore the construction is illegal. The defendant has been directed in the said notice not to proceed with the construction. If inspite of these facts the defendant has proceeded with the construction ignoring the notice, he has taken the risk and now he cannot put forward equities like spending lot of money over the construction and on that ground to resist the application for temporary injunction. The learned Counsel for the defendant argued that in this document the date mentioned at the top as 24-7-1997 is altered so as to make it appear that the notice has been issued earlier to the filing of the suit. I do not think such an argument can be accepted. Though there appears to be some alteration in the writing of the date at the top in this document, it may be seen at the bottom of the document the date is clearly put as 23-7-1997. It is the date on which the authorities have signed on the notice. The suit has been filed on 26-7-1997. It is therefore obvious that this notice has been served upon the defendant earlier to the filing of the suit and he has proceeded with the construction ignoring this notice. Therefore this argument of the learned Counsel for the defendant-respondent cannot be accepted.
15. It is seen from the order passed by the Trial Court dated 8-8-1997 on I.A. No. I that it has considered all aspects of the matter properly and has come to the right conclusion that the plaintiff is entitled to an order of temporary injunction. The Trial Court has also realized the importance of finally disposing off the suit in view of the facts and circumstances of the case and has therefore restricted the period of temporary injunction being in force for a duration of four months. On the other hand the impugned order passed by the lower Appellate Court goes to show that it has interfered with the Trial Court's discretionary order absolutely without any grounds. I therefore find that this is an eminently fit case wherein this Court should interfere under Section 115, Civil Procedure Code and set-aside the impugned order and restore the order passed by the Trial Court.
16. For the reasons aforesaid, the revision petition is allowed. The impugned order is hereby set-aside and the order passed by the Trial Court on I.A. No. I on 8-8-1997 is restored. Considering the facts and circumstances of the case the Trial Court is directed to dispose off the suit in accordance with law within a period of four months from the date of receiving a copy of this order. Both the parties shall appear before the Trial Court on 10-12-1997 for further proceedings. The respondent shall pay the costs of this revision petition to the petitioner. The office is directed to send a copy of this order to the Trial Court forthwith.