Karnataka High Court
Aarati W/O Rajukumar vs Sardar Manohar Singh S/O Sardar Harnam ... on 4 October, 2018
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 4TH DAY OF OCTOBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE N.K.SUDHINDRARAO
M.F.A. No.201815/2015
C/W M.F.A. NO.201814/2015,
M.F.A. NO.200273/2017 AND
M.F.A. NO.200666/2017 (CPC)
MFA No.201815/2015 (CPC)
BETWEEN:
Aarati wife of Rajkumar
Age: 42 years, Occ: Agriculture
And household, R/o: Near Ram Mandir
Bidar-585 401.
... Appellant
(By Sri Shivanand Patil, Advocate)
AND:
1. Sardar Manohar Singh
S/o Sardar Harnam Singh
Age: 72 years, Occ: Agriculture
& business, R/o: Chitakhana
Near Chitralekha Talkies
Bidar-585 401
2. The State of Karnataka
Represented by Deputy Commissioner
2
Bidar-585 401.
3. The Tahsildar, Bidar
Taluk & Dist. Bidar-585 401
...Respondents
(Sri Pandurangrao Gadgikar, Adv. for R1)
(Smt. Archana P.Tiwari, AGA for R2 & R3)
This Miscellaneous First Appeal Is Filed under Order
43 Rule 1 of CPC praying to allow the appeal and set aside
the order dated 2.9.2015 passed on IA No.II by the Prl.
Senior Civil Judge at Bidar in OS No.26/2015 and further
pass temporary injunction order against defendant Nos.2
and 3 from disposing the plaintiff over the suit properties in
pending disposal of the suit.
MFA NO.201814/2015
BETWEEN:
Aarati wife of Rajkumar
Age: 42 years, Occ: Agriculture
And household, R/o: Near Ram Mandir,
Bidar-585 401.
... Appellant
(By Sri Shivanand Patil, Advocate)
AND:
1. Sardar Manohar Singh
S/o Sardar Harnam Singh
Age: 72 years, Occ: Agriculture
& business, R/o: Chitakhana
Near Chitralekha Talkies, Bidar-585 401
2. The State of Karnataka
Represented by Deputy Commissioner
Bidar-585 401
3
3. The Tahsildar, Bidar
Taluk & Dist. Bidar-585 401
...Respondents
(Sri Pandurangrao Gadgikar, Adv. for R1)
(Smt. Archana P.Tiwari, AGA for R2 & R3)
This Miscellaneous First Appeal is filed under Order
43 Rule 1 of CPC praying to allow the appeal and set aside
the order dated 2.9.2015 passed on IA No.V by the Prl.
Senior Civil Judge at Bidar in OS No.26/2015 and further
pass temporary injunction order against defendant Nos.2
and 3 from transferring the suit properties in pending
disposal of the suit.
MFA NO.200273/2017
BETWEEN:
Chandrashekhar S/o Madeppa Pasargi
Age: 41 years, Occ: Agriculture &
Business, R/o Gorkha Galli, Bidar
Tq. and Dist. Bidar
... Appellant
(By Sri Shivanand Patil, Advocate)
AND:
1. Sardar Manohar Singh
S/o Sardar Harnam Singh
Age: 74 years, Occ: Agriculture
& business, R/o: Chitakhana
Near Chitralekha Talkies
Bidar-585 401
2. The State of Karnataka
Represented by Deputy Commissioner
Bidar-585 401
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3. The Tahsildar, Bidar
Taluk & Dist. Bidar-585 401
...Respondents
(Sri Pandurangrao Gadgikar, Adv. for R1)
(Smt. Archana P.Tiwari, AGA for R2 & R3)
This Miscellaneous First Appeal is filed under Order
43 Rule 1 of CPC praying to allow the appeal and set aside
the order dated 18.01.2017 passed on IA No.II by the II Addl.
Senior Civil Judge at Bidar in OS No.24/2015 and further
pass temporary injunction order against defendant Nos.2
and 3 from dispossessing the plaintiff over the suit property,
in pending disposal of the suit.
M.F.A. NO.200666/2017
BETWEEN:
Sardar Manoharsingh
S/o Sardar Harnamsingh
Age about 84 years, Occ: Agriculture
R/o Near Chitralekha Talkies
Bidar, Dist.Bidar-585101
... Appellant
(By Sri Ashok S.Kinagi, Advocate)
AND:
1. The State of Karnataka
Represented by Deputy Commissioner
Bidar, Dist.Bidar-585101.
2. The Tahsildar, Bidar,
Dist. Bidar-585 101.
...Respondents
(Smt. Archana P.Tiwari, AGA)
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This Miscellaneous First Appeal is filed under Order
43 Rule (1) (r) of CPC praying to allow the appeal and set
aside the order dated 16.02.2016 passed on IA Nos.1 & IV by
the Prl. Senior Civil Judge & CJM at Bidar in OS
No.52/2015.
These appeals coming on for Further Dictation this
day, the court delivered the following:
JUDGMENT
These are the four appeals coming up for disposal, are directed against the orders passed by the learned Prl. Senior Civil Judge, Bidar in O.S. No.26/2015; learned II Addl. Senior Civil Judge, Bidar in O.S. No.24/2015 and learned Prl. Senior Civil Judge, Bidar in O.S. No.52/2013.
2. Before adverting attention on other aspects, it is necessary to mention about the four cases.
Vacant land in erstwhile Sy.No.22 was owned and possessed by Sangappa S/o Shivlingappa Chamkura who is no more and the transactions entered into by one Vaijinath, said to be the son of Sangappa. After the death of Sangappa, his son Vaijanath is reported to have sold the said land in question to one Sardar Manohar Singh under the registered 6 sale dated 21.09.1970. Thus, Sardar Manohar Singh claimed ownership by virtue of derivative title what he was said to have got from Vaijinath. One Aarati W/o Rajshekhar entered into an agreement to purchase the property in question from Sardar Manohar Singh for sale consideration of Rs.51,00,000/- on 20.10.1994.
The properties that were the subject matter of the agreement of sale are vacant land bearing Sy.No.59 measuring 8 acres 18 guntas, Sy.No.60 measuring 17 acres 04 guntas and Sy.No.62 measuring 13 acres 07 guntas, all situated at village Chickpet. It is stated that under the said agreement, the purchaser Aarati paid the entire sale consideration amount of Rs.51,00,000/- to the seller Sardar Manohar Singh. The suits are filed by both Sardar Manohar Singh and Aarati.
The suit filed by Arathi is for specific performance; the one filed by Chandrashekar is for specific performance and the one filed by Sardar Manohar Singh is for declaration. 7
Insofar as I.A. No.2 filed by Aarati against the defendant Nos.2 and 3 seeking an ad interim temporary injunction in respect of protecting possession and I.A. No. V was filed for an order to restrain defendants from alienating the property. Next one is the Sardar Manohar Singh.
3. The suits filed by the parties are as under; O.S. No.24/2015 is filed by Chandrashekhar seeking specific performance of agreement dated 25.05.1994. Whereas O.S. No.26/2015 is filed by Aarati for specific performance of agreement dated 20.10.1994 in respect of land Sy.No.59 to the extent of 8 acres 18 guntas, Sy. No.60 to the extent of 17 acres 04 guntas and Sy.No.62 to the extent of 13 acres 07 guntas for sale consideration amount of Rs.51,00,000/-. Similarly, O.S. No.52/2015 is filed by Sardar Manohar Singh for the relief of declaration of title and injunction against the defendants.
4. The learned trial Judge rejected all the applications seeking temporary injunction filed by 8 Chandrashekhar, Aarati and Sardar Manohar Singh. It is necessary to mention that defendant Nos.2 and 3 in all the three cases are the State Government. Defendant No.2 is the Deputy Commissioner representing the State and defendant No.3 is the Tahasildar. With these, the defendant No.1 Sardar Manohar Singh who obviously demanded for specific performance by the plaintiffs. Regard being had to the fact that the said Sardar Manohar Singh seeks an order of injunction against the defendants.
5. Learned counsel Sri Shivanand Patil appearing for plaintiffs Aarati and Chandrashekhar would submit that, the ownership of Sardar Manohar Singh is not disputed and consideration amount of Rs.51,00,000/- and Rs.11,21,000/- respectively were already been paid and absolutely there is no impediment for Sardar Manohar Singh to execute the sale deed. At the same time, the said vendor Sardar Manohar Singh seeks declaration of title against the Government. 9
6. In the peculiar circumstances of the case, the plaintiffs Aarati and Chandrashekhar in O.S. No.24/2005 and 26/2005 do not dispute the ownership of Sardar Manohar Singh. Quite obviously, they are seeking for specific performance of the agreement from Sardar Manohar Singh and as a matter of fact, it is their title over the lands in question, which the plaintiffs, be it Chadrashekhar or Aarati, claiming under Sardar Manohar Singh. The claim of the plaintiff Aarati or Chandrashekhar is that, originally property in question belonged to Sangappa and upon his death the rights of ownership and possession devolved upon his son Vaijinath.
7. Insofar as the plaintiff Aarati is concerned, she claims that she has paid the full consideration of Rs.51,00,000/- to Sardar Manohar Singh and only the formality of registration is pending. In the circumstances, it is the Government, which has given red signal, the furtherance of the contract and it is asserted that the total property belonged to the Government wherein the plaintiffs, 10 either Aarati or Chandrashekhar, cannot seek or get the relief of specific performance over the Government land in their favour. More particularly, in a suit wherein the Deputy Commissioner and Tahasildar are representing the State Government, they are defendant Nos.2 and 3.
8. Learned counsel for plaintiffs Sri Shivanand Patil in both the respective cases would submit that plaintiffs were compelled to file the suits, as the demand was refused by the vendor.
9. The subject matter in M.F.A. No.201815, 201814/2015, 200273/2017 and 200666/2017 is concerned, is the refusal to grant interim injunction to be precise.
10. Insofar as MFA No.201815/2015 it is directed the order passed by the learned Prl. Senior Civil Judge, Bidar in O.S. No.26/2015 on I.A. No.2, wherein the learned trial Judge dismissed the I.A. No.2 filed by the plaintiff under Order 39 Rules 1 and 2 R/W Section 151 of CPC seeking 11 temporary injunction against the defendant Nos.2 and 3 from illegal dispossessing or evicting the plaintiff from her lawful possession and enjoyment of the land bearing Sy.No.59 to the extent of 8 acres 18 guntas and Sy.No.60 to the extent of 17 acres 04 guntas and another land in Sy.No.61 to the extent of 13 acres 07 guntas situated at Chickpet, Tq. Bidar.
11. Insofar as M.F.A. No.201814/2015 is concerned, it is directed against the order passed on I.A. No.5 in O.S. No.26/2015 wherein plaintiff's application filed under Order 39 Rules 1 and 2 came to be rejected and the plaintiff seeks an order of temporary injunction against the defendant Nos.2 and 3 over the schedule properties stated above.
12. Insofar as M.F.A. No.200666/2017 is concerned, it is directed against the order passed by the learned trial Judge on I.A. Nos.1, 2 and 4, wherein I.A. Nos.1 and 4 filed under Order 39 Rules 1 and 2 CPC came to be rejected; whereas I.A. No.2 was partly allowed. I.A. No.1 was filed by 12 the plaintiff by the Sardar Manohar Singh under Order 39 Rules 1 and 2 of CPC seeking an order to restrain the defendant Nos.1 and 2, their official subordinates from interfering with the peaceful possession and enjoyment of the schedule property. I.A. No.2 was in respect of application filed U/O 39 Rules 1 and 2 of CPC seeking temporary injunction against the defendant Nos.1 and 2 and persons claiming under them from transferring the suit lands in favour of others including Boards, authorities, co- operative society, Housing Department etc.
13. I.A. No.4 was filed under Order 39 Rules 1 and 2 CPC seeking an order of temporary injunction to restrain the defendants and persons claiming under them to put up any construction over the schedule property.
14. Insofar as M.F.A. No.200273/2017 is directed against the order passed by the learned trial Judge seeking specific performance of sale agreement dated 25.05.1994 on I.A. No.2 dated 18.01.2017, under which, the learned trial 13 Judge rejected the said application to restrain the defendants No.2 and 3 and the persons claiming under them from interfering the possession and enjoyment or dispossessing the plaintiff from the schedule properties. Thus, the four appeals filed by the plaintiffs, viz., Aarati and Chandrashekhar in the capacity of purchasers in respect of the sale agreement executed by one Sardar Manoharsingh and the suit filed by plaintiff-Sardar Manoharsingh for declaration of title in respect of suit lands in Sy.No.59,60,61 and 62 of Chickpet village in Bidar taluka.
15. The crux of the case of the plaintiff is that, Aarati, the plaintiff in O.S. No.26/2015 claims that the landed properties in Sy.No.59 to the extent of 8 acres 18 guntas, in Sy.No.60 to the extent of 17 acres 4 guntas and Sy.No.62 to the extent of 13 acres 07 guntas, all situated at Chickpet village were ancestral property of one Sangappa S/o Shivlingapp Chamkura, who is the father of one Vaijinath and defendant No.1 purchased the said properties from said Vaijinath. It was defendant No.1, who, thereafter 14 executed the sale agreement in favour of the plaintiff-Aarati agreeing to sell the lands bearing Sy.Nos.59,60 and 62 stated above.
16. The plaintiff claims that she made due and diligent enquiry, verified the revenue records and then purchased the said properties. The plaintiff-Aarati, in part performance of the agreement, paid the full consideration amount of Rs.51,00,000/- and was put in possession of the suit lands in the presence of the witnesses. Defendant No.1 has also executed an agreement on 20.10.1994 in favour of Aarati, the plaintiff in OS No.26/2015. In the meanwhile, in the light of the O.S.No.24/2005 being clubbed to O.S. No.26/2005, it is necessary to mention that, one more sale agreement is said to have been executed by Sardar Manohar Singh in favour of Chandrashekhar for sale consideration of Rs.11,21,000/- on 25.05.1994 and the said Chandrashekhar has sought for specific performance of the said agreement in O.S. No.24/2015, wherein the application 15 filed by him in I.A.No.2 under Order 39 Rules 1 and 2 CPC, came to rejected.
17. In the circumstances, the plaintiffs, Aarati and Chandrashekhar, claim for an order of injunction stating that they were put in possession of the respective schedule properties by the vendor Sardar Manohar Singh in pursuance of the sale agreement dated 20.10.1994 for sale consideration of Rs.51,00,000/- and dated 25.05.1994 for sale consideration of Rs.11,21,000/- respectively. However, the relief sought for are verified in nature, like to protect possession, to prevent alienation, raising construction or altering.
18. In the circumstances, that plaintiff Arati invariably admits the ownership of Sardar Manohar Singh over the suit schedule properties as she is seeking relief of specific performance from defendant Sardar Manohar Singh, who, according to her, invariably is the owner of the suit properties. So also is the case of Chandrashekar. Insofar as 16 owners of the schedule properties is admitted by virtue of the suit for specific performance filed by him in O.S. No.24/2015. If the above is the state of affairs, the presence of defendant Nos.2 and 3 come into existence as the property is claimed to be the Government property and defendant Nos.2 and 3 have claimed the title with the Government. They are nothing but the Deputy Commissioner, Bidar District and the Tahsildar, Bidar Taluk.
19. At this stage, it is necessary to recollect that the properties are originally belonged to one Sangappa. The said Sangappa is no more and the schedule property was inherited through intestate succession by his son Vaijinath. Sardar Manohar Singh unequivocally asserts the ownership of the schedule property to be that of the Vaijinath till he executed the registered sale deed of the same in his favour. Thus, there is animosity among the plaintiff and defendant No.1, in all three suits, i.e., O.S.No.26/2015, OS No.24/2015 and OS No.52/2015.
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20. Regard being had to the fact that, the defendant No.1 in the suit filed by plaintiffs Arati and Chandrashekhar is Sardar Manohar Singh after the advent of Government to the scene as a contesting defendant, it is because of its stand that the schedule properties are Government lands. Neither Sangappa had any right over the suit schedule properties to be inherited by his son Vijinath nor Vaijinath had any rights over the suit schedule properties to Sardar Manohar Singh nor Sardar Manohar Singh had any rights over the suit schedule properties but agreed to be sold to either Arati or Chandrashekhar.
21. Learned counsel for plaintiffs Arati and Chandrashekhar would submit that the ownership of the suit properties involving the suit for specific performance rested with Sangappa was inherited by his son Vaijinath and the Government, i.e., defendant Nos.2 and 3, has any right over the schedule properties and is no way concerned, except to maintain the revenue documents and records of the properties, that too in favour of the Sardar Manohar Singh. 18 Further, the learned counsel for the plaintiffs would submit that an amount of Rs.51,00,000/- is being paid to the venders in one case and Rs.11,21,000/- in another case, that too are not disputed.
22. At this juncture, Sri Ashok S, Kinagi, learned counsel for defendant-Sardar Manohar Singh would submit that the defendant does not admit the execution of sale agreement and submits that Sardar Manohar Singh remains the whole and sole owner in possession of the schedule properties.
23. Sri Shivanand Patil, learned counsel appearing for plaintiff-Aarati and Chandrashekhar would submit that the Government cannot claim the properties as there was no mention of the name of the Government in the relevant records maintained by the Revenue Department. It is further submitted that as a custodian of the said revenue records, the Government had misused the record which were in its custody. Thus, the learned counsel would submit that 19 the plaintiffs are entitled for the relief of specific performance in the respective suits.
24. Smt. Archana P. Tiwari, learned Government Advocate would submit that the series of transaction, facts, contentions and rival contentions proved by themselves, that the plaintiffs are having their hands in glove of each others and hatched of clever plan to bag the schedule properties and have engineered the scheme of assertions and denials of rights over the suit schedule properties.
25. The trial Court framed the following points for consideration;
1. Whether the plaintiff has made out a prima-facie case in her favour?
2. Whether the balance of convenience lies in favour of the plaintiff?
3. Whether the plaintiff will suffer irreparable loss it temporary injunction is not granted in favour of the plaintiff as prayed in I.A.Nos.2 and 5?
4. What order?
---
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26. In the context and circumstances of the case, the substantial percentage of the litigation relates to the title, fact as to whether the schedule properties originally belonged to Sangappa, thereafter, to his son Vaijinath and finally Sardar Manohar Singh, or remained with the Government, as if it was the properties of the Sangappa. The job of the plaintiffs Aarati and Chandrashekhar are made easy at the present stage, otherwise, the Government is believed to be the owner.
27. The domain of this Court would be to end where there exists a prima facie case, either in O.S.No.26/2015 or O.S.No.24/2015. The plaintiff Aarthi is in possession of the entire property and deserves an order to restrain the defendant Nos. 2 and 3 from interfering with the possession.
28. Admittedly where a plaintiff in the capacity of a purchaser under a sale agreement seeks protection through an order of injunction to restrain the vender or the person claiming under him, more particularly the Government, it 21 goes without saying that he satisfies the requirement of Section 53A of Transfer of Property Act that provides for part performance, which invariably suggests that an agreement or a contract which is required to be in writing, is in writing, possession of the property or if the party is already in possession, he is permitted to continue under the said agreement. Further, transferee has done acts in furtherance of contract and also ready to perform his remaining duties delivered under the contract. In the present circumstances, the specific performance in both the sides is claimed against Sardar Manohar Singh who is defendant No.1. Incidentally, his claim for title faces stiff opposition from the Government, who are nothing but defendant Nos.2 and 3. In the circumstances, the plaintiff seeks an injunction not only against the vendor Sardar Manohar Singh in both the cases i.e., O. S. Nos. 24/2015 and 26/2015 and defendant Nos. 2 and 3 represent the Government and the prohibitory order is sought against them also.
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29. At this juncture, it is to be analyzed that insofar as the title and ownership is concerned, the claim is negated and opposed by the Government tooth and nail, which contend that the very vendor, i.e., Sardar Manohar Singh, had no alienable right and could not claim injunction, particularly whether to safeguard the possession and the related matter. In this connection, Section 61 of the Land Revenue Act requires cursory glance.
Exclusive Jurisdiction of Revenue Courts and bar of jurisdiction of Civil Courts:
1. Save as otherwise provided in this Act, or any other law for the time being in force, a Revenue Court shall have jurisdiction to determine, decide or dispose of, any matter which it is, by or under this Act, empowered to determine, decide or dispose of and no Civil Court shall exercise jurisdiction as to any of such matters.
2. Subject to the exceptions hereinafter specified, no Civil Court shall exercise jurisdiction as to any of the following matters namely:
a. claims against the Government relating to any property appertaining to any office or for any service whatsoever;
b. objections,--
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i. to the amount or incidence of any assessment of land
revenue under this Act; or
ii. to the mode of assessment or levy, or to the principle
on which such assessment or levy is fixed; or iii. to the validity or effect of the notification of survey or settlement;
c. claims connected with or arising out of any proceedings for the realisation of land revenue or other demands recoverable as arrears of land revenue under this Act, or any other law for the time being in force;
d. claims to set aside, on account of irregularity, mistake, or any other ground, except fraud, sales for arrears of land revenue;
e. claims against the Government,---
i. to be entered in the revenue survey or settlement records or any land records as liable for the revenue or as superior holder, inferior holder, occupant, mortgagee, landlord or tenant;
ii. to have any entry made in any record of a revenue survey or settlement; or iii. to have any such entry either omitted or amended; f. the distribution of land or allotment of land revenue on partition of any estate under this act or any other law for the time being in force;
g. claims against the Government,--
i. to hold land wholly or partially free from payment of land revenue; or 24 ii. to receive payments charged on or payable out of the land revenue; or iii. to set aside any cess or rate payable under the provisions of any law for the time being in force; or iv. respecting the occupation of waste or vacant land belonging to Government;
h. claims regarding boundaries fixed under this Act or under any other law for the time being in force, or to set aside any order passed by a competent officer under any such law with regard to boundary marks or survey marks; Provided that if any person claims to hold land wholly or partially exempt from payment of revenue under,--
a) any law for the time being in force expressly creating an exemption not before existing in favour of an individual or of any class of persons, or expressly confirming such an exemption on the ground of its being shown in a public record, or of its having existed for a specified term of years; or
b) any written grant from the Government expressly creating or confirming such exemption, such claim shall be cognizable by a Civil Court.
---
30. It is necessary to note that the relationship claimed by the plaintiff against the Government is both possessory and the rights touching the records as well. When Section 61 of the Land Revenue Act provides for 25 exclusive jurisdiction of the Revenue Court and barred by jurisdiction of Civil Court under certain instances. Incidentally the relief which are sought by the plaintiffs are to that effect.
31. In O.S. No.26/2015 filed by Aarthi it is against eviction and alienation by the Government. In O.S. No.24/2015 is concerned, which is filed by Chandrashekhar against eviction, alienation and insofar as Sardar Manohar Singh is concerned, a proper analysis of reliefs sought by the plaintiff would make following points amply clear:
1. The defendant Nos. 2 and 3 are to be restrained for interfering with the possession; not only the stand of the Government is questioned but order is sought against the Government to be restrained from proceeding in revenue jurisdiction, because the cumulative effect of the order, if granted, would be to the effect of the Government would hold aimed at in the matter of possession of the suit property, more 26 particularly, when the Government claims that the ownership lies and the records claimed by SMS are concocted.
2. The concept of possession for getting an order of injunction to protect possession invariably suggests the possession must be actual possession and not otherwise. Insofar as the actual possession is concerned, in the circumstance of the case invariably there must be acts of possession which is absent.
---
32. In this connection, it is difficult in the circumstances both Sardar Manohar Singh and the purchaser under the sale agreement are claiming injunction and regard being had to the fact that Sardar Manohar Singh has denied the agreement and the clarity is not seen in the stand wherein both the purchasers, namely, Aarti and Chandrashekhar on the one hand in O.S.No.24/2015 and 26/2015 and Sardar Manohar Singh, on the other hand, are claiming injunction.
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33. Further, insofar as statutory notice under Section 80 of CPC is concerned, the learned counsel for the plaintiffs would submit that applications were filed and the Court proceeded to dispose of the applications filed under Order 39 Rules 1 and 2 of CPC filed in three cases, together. Insofar as the statutory notice is concerned, the learned counsel for the plaintiffs Sri Shivanand Patil would submit that when once the application filed under Order 39 Rules 1 and 2 of CPC are taken up for consideration, it is presumed that the application under Section 80 CPC was / were allowed. Further, in this connection learned Government Advocate would draw my attention to para-23 of the order of the learned trial Judge in O.S. No.26/2015, which is as under;
"On going through the principles enunciated in the above said decisions and the above said provisions of Sec.17 of Registration Act, I am of the firm opinion that plaintiff would not be entitled for any of the relief of temporary injunction against the defendants 2 and 3 on the basis of the above said unregistered Agreement of Sale dated 20.10.1994 as prayed in the 28 above said I.As 2 and 5. One more aspect that is to be noted herein regarding the conduct of the plaintiff who has produced only the postal receipts for having sent the notice to defendants 2 and 3 herein but has not produced the said notice sent to defendants 2 and 3 for the best reasons known to her only which goes to show that plaintiff is trying to suppress the said fact before the Court and as such her conduct is not clean as regard to the suppression of the above said facts wherein on this count also plaintiff would not be entitled for the relief of temporary injunction as prayed in the above said I.As 2 and 5. On perusal of the ROR of the above said suit lands, it is seen that the Government of Karnataka appears to be the owner of the same at present. If at all the said entry in the ROR of the above said suit lands done by defendants 2 and 3 is illegal as alleged by plaintiff and defendant no.1 who is said to be the owner of the suit lands from exhausting his grievances before the proper forum in that respect and neither the plaintiff nor the defendant no.1 having placed any materials to that effect in view of which the above said contention of the plaintiff cannot be accepted."
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34. Thus, the learned AGA seriously objects on the approach of the plaintiffs of filing postal receipt claiming that 29 they evidenced the sending of notice by registered post, but not filing the copy of the notice which is the main document.
35. Further, when the plaintiff in O.S. No.26/2015 claims that, as the purchaser under the agreement she has purchased the property from Sardar Manohar Singh, who is the plaintiff in O.S. No.52/2015. Original sale deed said to have been executed by Vaijinath in favour of Sardar Manohar Singh is not filed. However, certified copy of the same is filed. Possession in all perceptions, more particularly in respect of the landed properties apart from being actual is also the lawful possession. It is not sufficient if the plaintiff claims possession, but it must be lawful, which suggests that the person in possession was inducted or has entered into possession in the permitted base known to law.
36. Admittedly, plaintiff (SMS) source of title over the property is one Sangappa, who was said to be the owner of entire part of land and upon his death, it was inherited by 30 his son Vaijinath. However, the source of title of Sangappa is not forthcoming in the entire records. In respect of such matters, the State Government, in all eventualities, will be the owner of residuary property and insofar as title is concerned, it should have been in the manner known to canon of law.
37. Insofar as the source of title attached to Sangappa, father of Vaijinath, there is no acceptable title documents nor connecting possession are made available. Though it is a suit for specific performance without the plaintiff-purchaser admits the title of the defendant seller, it is a substantial concept considering the injunction is claimed against the Government.
38. Next aspect is, either prima facie case or balance of convenience or hardship, they are not referred is alternative. On the other hand, both of them are to be present. The sale agreement said to have been executed in favour of the plaintiffs but has no impact on the Government under the doctrine of principles of contract. 31
39. The next aspect that has to be considered which will have a riding impact is the situation in case of grant of temporary injunction would be that the hands of Revenue Authorities and those authorities which hold jurisdiction to adjudicate the matter on the revenue side will be made to keep quite which is neither proper nor warranted. In the circumstances, I am of the considered and firm view that an order against alienation or eviction or regarding possession cannot be granted. Accordingly, the plaintiffs in all the suits referred above are not entitled for an order of injunction. The applications are devoid of merits and there is no occasion to interfere with the orders passed by the learned trial Judge.
Miscellaneous First Appeal Nos.201815/2015, 201814/2015, 200273/2017 and MFA No.200666/2017 are dismissed with costs.
Sd/-
JUDGE NSP/RSP/VNR