Karnataka High Court
Sri Balakrishna Divakar vs Smt B Latha Divakar on 13 August, 2018
Author: Chief Justice
Bench: Dinesh Maheshwari
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W.P.No.3438/2018 c/w
W.P.No.3439/2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF AUGUST, 2018
BEFORE
HON'BLE MR.JUSTICE DINESH MAHESHWARI, CHIEF JUSTICE
WRIT PETITION NO.3438/2018 (GM-CPC)
C/W
WRIT PETITION NO.3439/2018 (GM-CPC)
BETWEEN:
SRI BALAKRISHNA DIVAKAR
S/O LATE DATTATHREYA DIVAKAR
AGED ABOUT 79 YEARS
R/AT KUKKUVADESHWARI NILAYA
BAGUR, BAGUR POST
HOSADURGA TALUK
CHITRADURGA DISTRICT - 577515 ... PETITIONER
(COMMON)
(BY SRI Y R SADASHIVAREDDY, SENIOR ADVOCATE FOR
SRI RAHUL S. REDDY, ADVOCATE)
AND:
SMT B. LATHA DIVAKAR
D/O BALAKRISHNA DIVAKAR
AGED ABOUT 41 YEARS
R/AT KUKKUVADESHWARI NILAYA
BAGUR, BAGUR POST
HOSADURGA TALUK
CHITRADURGA DISTRICT - 577515
... RESPONDENT
(COMMON)
(BY SRI D L JAGADISH, SENIOR ADVOCATE FOR
SRI MARUTHI G.B., ADVOCATE)
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W.P.No.3438/2018 c/w
W.P.No.3439/2018
W.P.NO.3438/2018 IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
ORDER DATED 15.12.2016 PASSED ON I.A.NO.X IN
O.S.NO.45/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND JMFC, HOSADURGA VIDE ANNEXURE-E AND ORDER
DATED 12.12.2017 PASSED ON I.A.NO.X IN MA NO.6/2017
ON THE FILE OF THE SPECIAL II ADDITIONAL DISTRICT
AND SESSIONS JUDGE, CHITRADURGA VIDE
ANNEXURE-G.
W.P.NO.3439/2018 IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
ORDER DATED 15.12.2016 PASSED ON I.A.NO.XV IN
O.S.NO.45/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND JMFC, HOSADURGA VIDE ANNEXURE-D AND ORDER
DATED 12.12.2017 PASSED ON I.A.NO.XV IN MA NO.7/2017
ON THE FILE OF THE SPECIAL II ADDITIONAL DISTRICT
AND SESSIONS JUDGE, CHITRADURGA VIDE ANNEXURE-E.
THESE WRIT PETITIONS COMING ON FOR
PRELIMINARY HEARING IN 'B' GROUP THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
Having heard the learned counsel for the plaintiff/ petitioner and having perused the material placed on record, this Court is unable to find any reason to interfere with the orders passed by the subordinate Courts declining the prayer for temporary injunction, as made by the plaintiff/petitioner; and at the same time, conversely granting the temporary injunction and restraining the plaintiff/petitioner from interfering with the properties in question.
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W.P.No.3438/2018 c/w W.P.No.3439/2018 The plaintiff/petitioner has filed the suit bearing O.S.No.1/2014 (New No.45/2016) against the defendant, who is none other but his daughter, seeking declaration against the gift deed dated 24.08.2007 on the grounds that the same was obtained by the defendant by playing fraud, after exercising undue influence, and by way of misrepresentation.
In the suit so filed, the plaintiff also moved an application seeking temporary injunction against the defendant. Conversely, the defendant, in her written statement, made a counter claim for declaration that she was the owner of the properties mentioned in the schedule to the written statement and also sought temporary injunction against the plaintiff from interfering with her possession.
The Trial Court, after consideration of the matter with reference to the material on record, arrived at the conclusion that the plaintiff/petitioner was not in possession of the properties in question and has failed to make out a prima facie case for grant of temporary injunction and accordingly, rejected the application-I.A.No.X filed by the 4 W.P.No.3438/2018 c/w W.P.No.3439/2018 plaintiff/petitioner; but, at the same time, allowed I.A.No.XV filed by the defendant/respondent, for temporary injunction against the plaintiff/petitioner from interfering with her peaceful possession and enjoyment of the properties in question.
In the appeals filed by the plaintiff/petitioner, the Appellate Court, by its common judgment dated 12.12.2017, has endorsed the orders of the Trial Court, while observing, inter alia, as under;
"23. On perusal of documents produced by the parties, such as registered gift deed, demand register extract, house taxes assessment register extract, encumbrance and other documents shows the katha came to be changed in the name of the defendant and she has been paying taxes over the suit schedule properties, on the basis of registered gift deed executed on 24.08.2007. Further, the registered gift deed and municipality records including panchayath records, prima-facia shows that, the defendant is in possession and enjoyment of the suit properties. Of course, the plaintiff has questioned the validity of the registered gift deed stating that, it was obtained by playing fraud, misrepresentation and undue influence. In the absence of prima-facia materials in favour of the appellant / plaintiff contrary registered gift deed and mutation records cannot be ignored unless those documents are going to be set-aside by the 5 W.P.No.3438/2018 c/w W.P.No.3439/2018 competent court of law, till then, it got presumptory value. Hence, I hold that, on re- appreciation of materials available on record, the plaintiff / appellant has not made out prima-facia case and balance of convenience in their favour, if injunction is not granted in favour of the defendant, it prevents a right of enjoyment of the defendant and it leads to multiplicity of proceedings, which cannot be encouraged at this stage. In my opinion, on re-appreciation of materials available on record, the order passed by the trial court is not arbitrary, capricious and vexatious and trial court not jumped to wrong conclusion. As such, the appellant / plaintiff has not made out reasonable grounds to interfere with the orders passed by the trial court. Accordingly, I answer Point No.1 is in the Negative."
Learned counsel for the petitioner has vehemently argued that the gift deed in question was obtained fraudulently and by way of misrepresentation and else, the petitioner continues to be in possession of the properties, particularly item No.2 of the suit schedule, where he is residing and, therefore, temporary injunction ought to have been granted. Further, with reference to the fact that the petitioner is about 79 years of age, learned counsel has strenuously argued that an injunction deserves to be granted for maintaining status quo by the parties.
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W.P.No.3438/2018 c/w W.P.No.3439/2018 It remains trite that the matter of grant or refusal of temporary injunction is essentially that of discretion of the Trial Court, to be exercised on the relevant principles. Further, in such a matter, the scope of interference by the Appellate Court is limited to examine if the order passed by the Trial Court is arbitrary, capricious or against sound judicial principles.
In the present matter, the Trial Court examined the record and thereafter, came to the prima facie conclusion that the plaintiff was not in possession of the properties in question. The Appellate Court again examined the record and came to the prima facie conclusion that the defendant was in possession and enjoyment of the suit properties. The Appellate Court also observed that unless the registered gift deed in favour of the defendant and the mutation records were set aside by the competent Court, they carried the necessary presumptory value and could not have been ignored. 7
W.P.No.3438/2018 c/w W.P.No.3439/2018 The considerations of the Trial Court and the Appellate Court remain valid and are based on the relevant applicable principles of law. In the given set of facts and circumstances, this Court is unable to find any case of jurisdictional error so as to call for interference under Article 227 of the Constitution of India. In that context, in the opinion of this Court, the age factor of the petitioner, by itself, cannot displace the other legal rights of the parties.
No case for interference being made out, these petitions stand dismissed.
Sd/-
CHIEF JUSTICE bkv