Karnataka High Court
Basavarajaiah @ Basavarajappa vs Smt Bhagayamma on 17 September, 2018
Author: B.Veerappa
Bench: B. Veerappa
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF SEPTEMBER, 2018
BEFORE
THE HON'BLE MR.JUSTICE B. VEERAPPA
WRIT PETITION NOS.36135-36138/2018 (GM-CPC)
BETWEEN:
1. BASAVARAJAIAH
@ BASAVARAJAPPA
S/O. LATE SHRI HONNAIAH,
AGED ABOUT 88 YEARS.
BENEFIT OF SENIOR CITIZEN IS NOT CLAIMED.
2. PUTTATHAYAMMA
W/O. SHRI BASAVARAJAPPA
AGED ABOUT 78 YEARS.
BENEFIT OF SENIOR CITIZEN IS NOT CLAIMED.
3. SHRI YATHEESHA
S/O. SHRI BASAVARAJAPPA
AGED ABOUT 34 YEARS.
ALL ARE RESIDENTS OF
APPAJAPPANA PALYA VILLAGE,
MAKANAHALLI POST,
HENNUR HOBLI,
TUMKUR DISTRICT-571112.
...PETITIONERS
(BY SRI SHANMUKHAPPA, ADV.,)
AND
SMT. BHAGAYAMMA
W/O. SHRI RENUKAPA
AGED ABOUT 49 YEARS
R/O. NO.96,
"RAKSHA NILAYA"
13TH CROSS, 12TH MAIN ROAD,
2
RAVINDRA NAGAR,
T.DASARAHALLI,
BENGALURU-560057.
...RESPONDENT
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH
THE IMPUGNED ORDER DATED 26.06.2018 PASSED BY THE
LEARNED II ADDITIONAL SENIOR CIVIL JUDGE & JMFC., AT
TUMKURU IN MISC. APPEAL NO.39/2017 VIDE ANNEXURE-A
CONFIRMING THE IMPUGNED ORDER DATED 04.10.2017
PASSED BY THE LEARNED II ADDITIONAL CIVIL JUDGE &
JMFC., AT TUMKURU IN O.S. NO.447/2017 REJECTING THE
APPLICATION FILED BY THE PETITIONERS UNDER ORDER 39
RULE 1 AND 2 OF CODE OF CIVIL PROCEDURE FOR GRANT OF
INTERIM ORDER OF INJUNCTION IN RESPECT OF THE SUIT
SCHEDULE PROPERTY VIDE ANNEXURE-B AND ETC.,
THESE WRIT PETITIONS ARE COMING ON FOR ORDERS,
THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
These writ petitions are filed by the defendants in O.S. No.447/2017 against the order dated 26.06.2018 made in M.A. No.39/2017 on the file of II Additional Senior Civil Judge and JMFC., at Tumkuru, dismissing the appeal by confirming the order passed by the trial Court in O.S. No.447/2017 dated 04.10.2017 on I.A. filed under Order 39 Rule 1 and 2 of Code of Civil Procedure granting injunction in favour of the plaintiff 3 restraining the defendants from interfering with the peaceful possession and enjoyment of the suit schedule properties of the plaintiff.
2. The respondent who is the plaintiff before the trial Court has filed O.S. No.447/2017 for permanent injunction on the ground that she is the owner and possession of the suit schedule properties by virtue of gift deed dated 21.04.2001 said to have been executed by her father-defendant No.1 in favour of the plaintiff and plaintiff was put in possession of the suit schedule properties and thereafter, the plaintiff has been enjoying the same by paying kandaya and other taxes. The revenue entries were also entered in the name of the plaintiff by virtue of the registered gift deed.
3. The defendants filed the written statement denying the plaint averments and contended that the alleged gift deed dated 21.04.2001 was false, created 4 and obtained fraudulently by the plaintiff from her father-1st defendant. Therefore, sought for dismissal of the application. The defendants also contended that they have already filed in O.S. No.312/2017 for cancellation of the alleged gift deed dated 21.04.2001 and the said suit is also pending between the parties. Therefore, sought for dismissal of the petitions.
4. The defendants have filed I.A. under Order 39 Rule 1 and 2 of Code of Civil Procedure for temporary injunction restraining the plaintiff to interfere with the defendants peaceful possession and enjoyment of the suit schedule properties. The said application was resisted by the plaintiff by filing objections reiterating the plaint averments made in the plaint. The trial Court considering the application and objections, by an order dated 04.10.2017, rejected the application filed by the defendants for grant of temporary injunction holding that the defendants have not made out prima-facie case 5 to grant injunction and balance of convenience do not lie in their favour and irreparable loss does not survive for consideration.
5. Being aggrieved by the said order, defendants filed an appeal in M.A. No.39/2017 before the II Addl. Senior Civil Judge and JMFC., Tumkuru, who after hearing both the parties, by the impugned order dated 26.06.2018, dismissed the appeal filed by the defendants by confirming the rejection order of temporary injunction. Hence, the present writ petitions are filed.
6. I have heard the learned counsel for the petitioners.
7. Sri Shanmukhappa, learned counsel for the petitioners reiterating the grounds urged in the writ petitions has contended that the respondent who is the plaintiff before the trial Court had obtained registered 6 gift deed from the 1st defendant by playing fraud and misrepresentation and the suit is already filed by the 1st defendant in O.S. No.312/2017 to declare that the alleged gift deed dated 21.04.2001 is void. He has further submitted that the Courts below concurrently erred in rejecting the application for temporary injunction filed by the defendants. Therefore, sought to allow the writ petitions.
8. Having heard the learned counsel for the petitioners, it is not in dispute that the present respondent who is the plaintiff in O.S. No.447/2017 filed the suit for permanent injunction based on the registered gift deed dated 21.04.2001 executed by the 1st defendant. In the suit filed by the plaintiff, the defendants filed application for temporary injunction contending the plaintiff had obtained registered gift deed from the 1st defendant by playing fraud and misrepresentation. The trial Court negated the 7 contention of the defendants and dismissed the application for temporary injunction mainly relying upon the registered gift deed. It cannot be disputed that once the registered gift deed executed by the 1st defendant in favour of his daughter-plaintiff on 21.04.2011, necessarily the possession of the land should have been delivered, that is the finding recorded by the trial Court.
9. It is the specific case of the plaintiff that after the registered gift deed, she has been in possession of the same and she has been paying kandaya and other taxes. The finding of fact recorded by the trial Court has been confirmed by the lower appellate Court while dismissing the appeal. It is also a fact that 1st petitioner already filed O.S. No.312/2017 for declaration to declare for cancellation of the registered gift deed in respect of the suit schedule properties. Till the said suit decided between the parties, the possession of the 8 plaintiff under registered gift deed cannot be interfered with. The defendants have not made out any prima-facie case to interfere with the concurrent findings of fact recorded by the Courts below. Accordingly, writ petitions are dismissed.
10. However, it is needless to observe that it is always open for the defendants to establish their rights, if any, in respect of suit properties in O.S. No.312/2017 which is pending between the parties for adjudication. It is also needless to observe that, if any alienation is made during the pendency of the suit, it is always hit by the provisions of Section 52 of the Transfer of Property Act.
Ordered accordingly.
Sd/-
JUDGE BS