Karnataka High Court
Veeramani K C vs N Shivaprasad on 1 March, 2024
Author: H.P. Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1st DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A. NO.6736/2023 (CPC)
C/W.
M.F.A. NO.6738/2023 (CPC)
IN M.F.A. NO.6736/2023:
BETWEEN:
1. VEERAMANI K.C.
AGED ABOUT 58 YEARS
S/O CHINNARAJU
RESIDINGA AT HRBR LAYOUT
BANASWADI,
BENGALURU-560043
PRESENTLY RESIDING AT
NO.1, GANDHI ROAD,
EDYYAMPATTI JOLARPETTI
VELLUR DISTRICT - 635851
TAMILNADU STATE. ... APPELLANT
(BY SRI SAMPAT ANAND SHETTY, ADVOCATE)
AND:
1. N. SHIVAPRASAD
AGED ABOUT 61 YEARS
S/O LATE NANJAPPA
FALSELY CLAIMING TO BE
RESIDING AT PROPERTY BEARING NO.9
PENT HOUSE, 6TH FLOOR
SRT COMPLEX, SERVICE ROAD
2
CHALLKERE, KALYANNAGAR
BENGALURU-560043
BUT IN FACT
RESIDING AT NO.415, 6TH 'A' MAIN
HRBR LAYOUT, BANASWADI
BANGALORE - 560043. ... RESPONDENT
(BY SRI JACOB ALEXANDER, ADVOCATE
[FOR CREST LAW PARTNERS])
THIS M.F.A. IS FILED U/O 43 RULE 1(r) R/W SECTION 151
OF CPC, AGAINST THE ORDER DATED 15.09.2023 PASSED ON
I.A.NO.1 IN O.S.NO.25567/2023 ON THE FILE OF THE XIII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYO HALL
UNIT, BENGALURU CCH-22, DISPOSING OFF I.A.NO.1 FILED
UNDER ORDER 39 RULE 1 AND 2 OF CPC.
IN M.F.A. NO.6738/2023:
BETWEEN:
1. VEERAMANI K.C.
AGED ABOUT 58 YEARS
S/O CHINNARAJU
RESIDINGA AT NO.1, GANDHI ROAD,
EDYYAMPATTI JOLARPETTI
VELLUR DISTRICT - 635851
TAMILNADU STATE. ... APPELLANT
(BY SRI SAMPAT ANAND SHETTY, ADVOCATE)
AND:
1. N. SHIVAPRASAD
AGED ABOUT 61 YEARS
S/O LATE NANJAPPA
FALSELY CLAIMING TO BE RESIDING
AT PROPERTY BEARING NO.9
PENT HOUSE, 6TH FLOOR
SRT COMPLEX, SERVICE ROAD
3
CHALLKERE, KALYANNAGAR
BENGALURU-560043
BUT IN FACT
RESIDING AT NO.415, 6TH 'A' MAIN
HRBR LAYOUT, BANASWADI
BANGALORE - 560043. ... RESPONDENT
(BY SRI JACOB ALEXANDER, ADVOCATE
[FOR CREST LAW PARTNERS])
THIS M.F.A. IS FILED U/O 43 RULE 1(r) R/W SECTION 151
OF CPC, AGAINST THE ORDER DATED 07.06.2023 PASSED ON
I.A.NO.1 IN OS.NO.25762/2023 ON THE FILE OF THE XIII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYO HALL
UNIT, BENGALURU CCH-22, ALLOWING THE I.A.NO.1 FILED
UNDER ORDER 39 RULE 1 AND 2 OF CPC.
THIS APPEALS HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 15.02.2024 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
The appeal in M.F.A.No.6736/2023 is filed challenging the impugned order passed on I.A.No.1 in O.S.No.25567/2023 contending that the Trial Court protected the possession of both the plaintiff and defendant over those portions of the suit schedule property in which they were in possession as on the date of the suit. In other words, protected the possession of the defendant over flat 4 No.29/penthouse in the 6th floor of suit schedule property. The appeal in M.F.A.No.6738/2023 is filed praying this Court to set aside the order passed by the Trial Court dated 07.06.2023 on I.A.No.1 in O.S.No.25762/2023, wherein the Trial Court passed an order of temporary injunction against the appellant by restraining him from alienating or creating third party interest over the suit property.
2. The factual matrix of the case of the appellant in O.S.No.25567/2023 is that the plaintiff filed the suit for bare injunction on the premise that originally suit schedule property was purchased by the plaintiff and defendant jointly under the sale deed dated 16.11.2013. Subsequently, the defendant executed release deed dated 13.02.2015 relinquishing all his right in the suit schedule property in favour of the plaintiff. Therefore, according to the plaintiff, the defendant is ceased of all right, title or interest over the suit schedule property in view of the said release deed executed in favour of the plaintiff. When 5 things stood thus, alleged that defendant tried to interfere with plaintiff's possession of the suit schedule property. Hence, suit is filed for the relief of permanent injunction. The suit schedule property is described as immovable property bearing Municipal B.B.M.P. No.9 measuring 18.04 guntas i.e., totally measuring 19,874 sq.ft. situated at Chelkere, K.R. Puram, Bangalore East Taluk consisting of four floor apartment complex with all basic amenities and surrounded by hollow brick wall.
3. The defendant appeared and filed the written statement and admitted that the suit schedule property was jointly purchased by plaintiff and defendant under sale deed dated 16.11.2013. However, it is the case of the defendant that alleged release deed dated 13.02.2015 set up by the plaintiff is only a nominal document and notwithstanding the same, the defendant has continued to be the joint owner of suit schedule property and certain reasons are cited as to why the said nominal release deed came to be 6 executed. The defendant contends that, it is in fact the defendant, who has put up the construction on the suit schedule property. The defendant further contends that plaintiff and defendant jointly executed sale agreement dated 21.04.2014 in favour of one C.V. Lokesh Gowda and plaintiff has also executed power of attorney dated 16.11.2013 in favour of the defendant. Ultimately, it is the contention of the defendant that, in view of the fact that plaintiff and defendant are joint purchasers and release deed is a nominal document, subject to the rights of Lokesh Gowda, under the sale agreement, the plaintiff and defendant each are entitled to half share in the suit schedule property. It is also contended that the plaintiff and defendant had agreed that, after apartment complex is constructed, they will enter into separate memorandum of apportioning their respective share. In the meantime, plaintiff and defendant entered into tentative agreement dated 19.06.2015. Hence, it is contended that the plaintiff 7 cannot maintain a suit for bare injunction. The plaintiff also filed an application praying the Court to grant an order of temporary injunction restraining the defendant from interfering with peaceful possession and enjoyment of the suit schedule property.
4. The Trial Court, having taken note of the pleadings of the parties, formulated the points whether the plaintiff has made out prima facie case for grant of temporary injunction and whether balance of convenience is in favour of the plaintiff and though considered other application filed under Order 6, Rule 17 of CPC, the other application filed by the defendant was restricted only in respect of temporary injunction is concerned, since the Trial Court has allowed the application filed under Order 39 Rule 1 and 2 of CPC and protected the possession of the defendant in respect of flat No.29 i.e., penthouse in the sixth floor of the suit schedule property and also directed to provide car parking slot in the basement and made it clear 8 that the order shall not come in the way of plaintiff seeking ejectment/eviction/recovery of possession of said portion of suit schedule property from the defendant under due process of law and also made it clear that in respect of the basic amenities such as electricity and water connection including the electricity supply for the lift, all expenses thereto, shall be borne by the defendant making it clear that the defendant cannot claim any equity or benefit on the ground of the electricity bill or water bill or other documents. Hence, the appeal in M.F.A.No.6736/2023 is filed.
5. The M.F.A.No.6738/2023 is filed against allowing of application filed under Order 39 Rule 1 and 2 of CPC which is numbered as I.A.No.1 granting interim order not to alienate the suit schedule property or create any 3rd party interest over the suit schedule property till the disposal of the suit. The Trial Court having considered the relief sought in the plaint as well as interim relief and it is the contention 9 of the plaintiff that both plaintiff and defendant have jointly purchased suit schedule property under sale deed dated 16.11.2013. Thereafter, the defendant has approached the plaintiff for releasing of his share and the said release deed is a nominal document, the same was never meant to be acted upon. Despite execution of the said release deed, the parties always treated the suit schedule property as the joint property of the plaintiff and defendant. However, recently, the defendant sought to exercise exclusive right to suit schedule property and has filed O.S.No.25567/2023 for permanent injunction to restrain the plaintiff herein from interfering with his possession and enjoyment of the suit schedule property by suppressing the fact that release deed was only a nominal document which has prompted the plaintiff to file the present suit for declaration that release deed dated 13.02.2015 is void ab intio and for partition and separate possession of his half share in the suit schedule property and for permanent injunction.
10
6. The defendant has appeared and filed written statement and taken the contention that release deed is valid and binding and having executed the same by receiving an amount of Rs.2,00,00,000/-(Rupees Two Crores only) and he has released his entire right in respect of the suit schedule property and on the face of the registered release deed, it is clear that he had relinquished all his rights over the suit schedule property. Now, he cannot seek for any relief of main relief as well as the interim relief and hence contend that he is not entitled for any interim relief also. The Trial Court having considered the pleadings of the parties, formulated the points whether plaintiff has made out prima facie case, balance of convenience and irreparable loss. Though another application filed under Order 7 Rule 11 of CPC by the defendant for rejection of the plaint and the Trial Court comes to the conclusion that plaintiff has made out the case for granting of temporary injunction and restrained the 11 appellant from alienating or creating any 3rd party right till the disposal of the suit. Hence, the present M.F.A.No.6738/2023 is filed.
7. The appellant in M.F.A.No.6736/2023 would vehemently contend that the Trial Court erroneously comes to the conclusion that the defendant has made out the case that he has been in possession of the suit schedule property and committed and error in protecting the possession of the defendant illegally exercising the discretionary relief. Even the Trial Court committed an error in granting interim order in favour of defendant muchless modifying or varying the order of injunction already granted in favour of the appellant herein. The Trial Court thoroughly misdirected itself both on question of law and facts. When the document of release deed is prima facie clearly discloses ought not to have considered the application filed by the respondent herein. The very approach of the Trial Court in the matter of protecting the so called possession of the defendant over 12 the imaginary portion of the suit schedule property is illegal, unjust and arbitrary. The Trial Court relied upon the created document of gas bill, the same is not in respect of the suit schedule property. The very approach of the Trial Court that the defendant is in possession of the flat No.29 is erroneous and from the discussion of the Trial Court revealed in paragraph No.13 of the earlier order dated 04.07.2023 coupled with reasoning assigned in impugned order, it is further clear that the defendant took undue advantage of the modified order passed by it on 20.04.2023 and by virtue of the police assistance which is provided by the Trial Court, the defendant tried to establish his possession in a portion of the suit schedule property which is evidently on the basis of stray voucher of gas connection in the name of the defendant, the said document could not have been construed as document evidencing settled possession of the defendant in any portion of the suit schedule property muchless in the alleged flat No.29 on the 13 6th floor. The plaintiff nowhere admitted in his pleading that the defendant is in possession of any portion of suit schedule property. The Trial Court committed a serious error of law in coming to the conclusion that the plaintiff has not admitted virtually that the defendant is in possession of the partition of the suit schedule property by totally misleading and misinterpreting the objection statement filed by the plaintiff. Hence, it requires interference.
8. The counsel also would vehemently contend that while disposing of application filed by the plaintiff as well as defendant, the Trial Court also exceeded its limit in restoring the electricity as well as providing all benefits while passing an order on interim application. The counsel also in M.F.A.No.6738/2023 vehemently contend that the Court below committed an error in granting the relief of not to alienate and to create any 3rd party right inspite of the defendant in the said suit who is the appellant clearly 14 contended that there is no any prima facie case to grant the relief of temporary injunction. When it is apparent on the face of the record that the release dated 13.02.2015 which has been executed by the plaintiff in favour of the defendant with free consent before the concerned sub- registrar, the same was executed indisputably for a valuable consideration and paid the consideration amount of Rs.2,00,00,000/-(Rupees Two Crores only). The theory setup by the plaintiff that the said document is nominal document which has been accepted by the Trial Court while granting the interim relief and whether it is a nominal document or not has to be proved during the course of trial, but prima facie the Trial Court ought to have taken note of the release deed dated 13.02.2015. The Trial Court completely misconceived, misread and misinterpreted the two documents namely compromise petition dated 10.10.2017 and the compromise decree passed by the concerned Court in O.S.No.10494/2006, which are not only 15 irrelevant to the facts of the case on hand but also have absolutely not bearing on the relief sought for by the plaintiff in the instant suit. In the absence of any inter-say admission between the plaintiff and defendant in the said compromise decree dated 10.10.2017 in O.S.No.10494/2006 with respect to the alleged joint ownership of the suit schedule property, the Trial Court has absolutely no basis to conclude that the plaintiff continued to be in joint owner of the suit property in question along with defendant in the instant suit. Merely because both of them were signatory to the said joint memo as defendant Nos.5 and 6. The Trial Court has completely misread and misinterpreted particularly the confirmation deed dated 29.05.2015 and came to an erroneous conclusion that the plaintiff is a co-owner of the suit schedule property, the same was conceded by the defendant. The counsel would vehemently contend that the very approach of the Trial Court is erroneous and hence it requires interference. 16
10. The counsel also would vehemently contend that alleged GPA dated 16.11.2013 executed in favour of the said Shivaprasad was cancelled on 13.05.2014 and even after knowingfully well that the same was cancelled, a document of sale agreement dated 21.04.2014 was created and enters into an agreement with Lokesh Gowda and the said document is also unregistered document. The counsel also would vehemently contend that though an agreement of sale was entered with defendant with regard to one apartment is concerned, the same yet to be constructed and not paid an amount of Rs.50,00,000/-. The counsel also would vehemently contend that though P.C.R is filed and after investigation 'B' report is also filed. The document of gas bill is of the year 2007 and the electricity bill also stands in the name of the appellant. The suit is filed in the year 2023. The counsel also would vehemently contend that subsequent suit is only after thought. Hence, the order 17 passed by the Trial Court in both the suits requires to be set-aside.
11. Per Contra, the counsel appearing for the respondent would vehemently contend that the Trial Court has taken note of material available on record and also brought to notice of this Court the statement of objections filed by the respondent in both the appeals and also the documents which have been produced before the Court. The counsel mainly relies upon the document of Ex.R1 and the reply given by the very plaintiff in one suit and the defendant in another suit and categorically admitted that the respondent is in possession of the property and even prior to filing of the suit, even such reply in paragraph No.7 of the notice categorically admitted that the said Shivaprasad i.e., respondent is in possession of the premises of flat No.29 which is in 6th floor and categorically contended that he has been in occupation based on the lease deed and he has not paid the rent. Inspite of said 18 reply was given, filed a false suit for seeking the relief of permanent injunction contending that the plaintiff is in possession.
12. The counsel also would vehemently contend that confirmation deed is also produced with regard to the same and also produced gas bill and electricity bill. The compromise petition is also clearly discloses that subsequent to the alleged release deed, both plaintiff and defendant are the parties to the said compromise petition. In support of his contention that he has been in possession of the property, produced photographs evidencing the fact that the respondent is in possession of the suit schedule property and the same has been considered by the Trial Court while passing the interim order and though certain directions are given while disposing the application filed for the relief of temporary injunction and when the Court comes to a conclusion that the plaintiff has not approached the Court with clean hands, given such direction with regard 19 to the basic amenities of electricity and also the car parking. Hence, the Court cannot find fault with the direction given by the Trial Court. Hence, the very contention that the Trial Court has not applied its mind and erroneously protected the possession of respondent cannot be accepted.
13. The counsel also would vehemently contend that in other suit also when the suit is filed by the plaintiff seeking the relief of cancellation of alleged release deed contending that the said release deed is executed only in order to help the defendant to get the loan since he has contested for election and based on the said release deed, he had availed the loan from the bank. The plaintiff was the guarantor to the said loan transaction and apart from that other documents subsequent to the said release deed, came into existence and particularly in the compromise petition, he was signatory and in the compromise petition it was specifically mentioned that both defendant Nos.5 and 6 20 who are the plaintiff and defendant exercising their joint right in respect of the suit schedule property, the said document is subsequent to the release deed. When such being the case, the same has been also taken note of by the Trial Court. Hence, rightly granted the relief of temporary injunction not to alienate and create any 3rd party right till the disposal of the suit.
14. Having heard the appellant's counsel and also the counsel appearing for the respondent and also on perusal of material available on record, this Court has to appreciate the material with regard to the factual aspects of the case. Having perused the contentions of both the parties, no dispute with regard to the fact that the property was jointly purchased by plaintiff and defendant in the respective suits that they have purchased the immovable property bearing municipal khata No.9 measuring 19874 Sq.ft in terms of the registered sale deed executed in their favour by one S.Mangilal and others on 16.11.2013 and on 21 the same day the defendant executed a general power of attorney in favour of the plaintiff. The plaintiff cancelled the above said GPA dated 16.11.2013. It is also the contention that the defendant executed registered release deed in favour of the plaintiff by relinquishing his half share in the property covered under the above said sale deed. The fact that existence of release deed is also not in dispute dated 13.02.2015.
15. It is also important to note that the plaintiff Shivaprasad in other suit also sought for the cancellation of the said release deed. It is also the contention that the defendant i.e., Shivaprasad has entered into an agreement of sale with the plaintiff in respect of a flat measuring 1600 sq.ft to be constructed in the above said property covered under the release deed. It is the contention that the said flat has not been constructed and also he has not paid the amount as agreed i.e., to pay Rs.50,00,000/-. It is also important to note that the relief sought in the suit filed by 22 the appellant before the Trial Court is for the relief of permanent injunction and also inter-alia sought for the relief of temporary injunction as per I.A.No.1 restraining the defendant from interfering with the plaintiff's possession and enjoyment of the suit schedule property, the same has not been considered instead of Trial Court having perused the material available on record, protected the possession of the defendant. No doubt the very vehement argument of the appellant's counsel before this Court is that the Trial Court considered only the gas bill and temporary electricity connection and there is no any permanent electricity is provided and also the counsel would contend that in view of modification of temporary injunction order, the defendant entered into the possession illegally and that illegal possession has been protected, but it is the contention of the defendant that in the said suit, in fact the defendant who has put-up the construction on the suit schedule property and not the plaintiff and also contend that the 23 plaintiff and defendant have jointly executed sale agreement dated 21.04.2014 in favour of C.V.Lokesh Gowda and plaintiff has also executed power of attorney dated 16.11.2013 in favour of the defendant. Ultimately it is the contention of the defendant that in view of the fact that the plaintiff and defendant are joint purchasers and release deed is a nominal document, subject to the rights of Lokesh Gowda under the sale agreement, the plaintiff and defendant each entitled to half share in the suit schedule property.
16. It is also important to note that the claim of the defendant is that there was a sale agreement in favour of the said Lokesh Gowda and also brought to notice of this Court that suit was filed before the Trial Court on 06.04.2023. The counsel also vehemently contend that a notice was exchanged between the said Lokesh Gowda, the plaintiff and also defendant since the said Lokesh Gowda had given notice on 30.01.2023 and reply was given by the 24 plaintiff himself admitting the possession of the defendant in terms of his reply dated 24.03.2023 and the counsel also brought to notice of this Court paragraph No.7 of the said notice which is referred as document No.R1 when the statement of objections was filed wherein the plaintiff himself has admitted that one of penthouse is in occupation of the said N.Shivaprasad which he has taken on lease from his client and he is not paying rents nor he is vacating the same. In view of the same, his client was specifically instructed the N.Shivaprasad to vacate the said penthouse, and has warned of taking recourse to law to evict him from the said premises if not vacated at the earliest and this notice dated 24.03.2023 and the suit is filed in 1st week of April-2023 wherein he sought for the relief of permanent injunction and restraining the said Shivaprasad in interfering with possession. When the unequivocal admission is on the part of the plaintiff that the said Shivaprasad is in possession of the property and he has 25 taken the premises on lease and also specific averment is made that he is going to take recourse to law to evict him from the said premises and instead of doing the same, he had filed a suit for permanent injunction against the defendant and the said fact is also taken note of by the Trial Court. Hence, it is clear that the plaintiff has not approached the Court with clean hands. When such being the case, he is not entitled for any discretionary relief of temporary injunction as sought.
17. The Trial Court also while considering the respective contentions of the counsel for respective parties taken note of the fact that there is a registered release deed dated 13.02.2015 and similarly taken note of the possession of the defendant over the penthouse in the suit schedule property, which is nothing but flat No.29 in the 6th floor of suit schedule property, exercising inherent power under Section 151 of CPC, the said possession of the defendant over the said penthouse, which is termed as 26 unauthorized possession by the plaintiff deserves to be protected from interference with otherwise than in accordance with law. The Trial Court also taken note of protection of defendant's possession over the said flat and also taken note of basic amenities to the said flat such as water and electricity and access to the said flat which includes access to the lift, because without providing these basic amenities and lift access, the possession of only the flat situated in the 6th floor of the building would be rendered meaningless. The Trial Court taken note of all these factors into consideration while passing an order since the point No.1 was considered in favour of the defendant in order to protect the possession of the defendant and while protecting the possession of both the plaintiff and defendant over those portions of the suit schedule property in which they are in possession as on the date of suit, accordingly disposed of I.A.No.1. Hence, I do not find any error committed by the Trial Court and also giving 27 directions while considering the application of the plaintiff and the defendant. Hence, I do not find any merit in the appeal to comes to a other conclusion that the Trial Court committed an error in exercising its discretion.
18. In so far as to the M.F.A.No.6738/2023, this Court has to take note of the relief sought in the suit filed by the plaintiff wherein he has sought for the relief of cancellation of the release deed dated 13.02.2015 and also claiming partition of half share of the plaintiff in the suit schedule property and also claiming permanent injunction and also sought for the relief of temporary injunction restraining defendant from not to alienate and create any 3rd party rights. The factual aspects and contentions in both the suits are same i.e., both of them jointly purchased the properties in the year 2013 and no dispute to that effect, but the very contention that subsequent to the release deed dated 13.02.2015, the plaintiff has relinquished his entire right by receiving an amount of Rs.2,00,00,000/- (Rupees 28 Two Crores only). It is the contention of the plaintiff that the said document is only a nominal document and only in order to help the defendant, the said document of release deed came into existence since the defendant intend to contest the elections and he was in need of money and hence he has obtained the nominal document of release deed dated 13.02.2015, the same is executed for election purpose. It is also contended that the property was also mortgaged as security for availing loan, but financial institution required one independent surety apart from the security of immovable property. Both the plaintiff and defendant mortgaged the suit schedule property, they would have to find some other independent surety and instead to facilitate availing of the loan, the plaintiff executed the release deed, thereby, showing the defendant as the sole owner of the suit schedule property and defendant mortgaged the suit schedule property to the financial institution as the sole owner and plaintiff stood as 29 guarantor/surety for the loan. The document No.33 also discloses sanction of loan letters of the Charan Souharda Co-Operative Bank which reflects sanction of loan on security of immovable property to the defendant.
19. The Trial Court taking into note of the averment made in the plaint as well as the document of release deed dated 13.02.20215, there was a compromise was entered into in O.S.No.10494/2006, the said suit was filed by the original owners of the suit schedule property against the vendors of plaintiff and defendant and also against the plaintiff and defendant who have been arrayed as defendant Nos.5 and 6. In the said suit, compromise was entered into between the parties wherein also defendant Nos.5 and 6 who are the plaintiff and defendant recognized them as joint owners of the suit schedule property and in the compromise petition at paragraph No.7, the plaintiff No.1 of the said suit has conceded and declared that defendant Nos.5 and 6 are in lawful possession and enjoyment of the 30 suit schedule property and they have putup the construction of commercial complex. The defendant Nos.5 and 6 exercising all acts of ownership in relation thereto. It is also important to note that said compromise petition dated 10.10.2017 and the release deed dated 13.02.2015, the said fact also taken note of by the Trial Court in paragraph No.14 of the order and in paragraph No.15 also discussed with regard to the confirmation deed dated 29.05.2015, the same is also subsequent to the release deed dated 13.02.2015 and the same is executed by plaintiff No.2 of the said suit, the said registered confirmation deed is also produced before the Trial Court and the same is also in favour of the plaintiff and defendant. The Trial Court not only taken note of the compromise entered into between parties and also even the confirmation deed wherein the recitals made to the effect that 1st party concedes that 2nd party i.e., plaintiff and the 31 defendant are lawful co-owners and they are in peaceful possession of the suit schedule property.
20. Having taken note of the pleadings of the plaintiff and also these two documents of compromise petition and also the confirmation deed which are executed subsequent to the release deed, the Trial Court comes to the conclusion that if there was a release deed executed by the plaintiff on 13.02.2015 relinquishing all his right over the suit schedule property, what made them to make an averments that both of them are joint owners and continued to treat the suit schedule property as the joint property of the plaintiff and the defendant and also taken note of the paragraph No.16, though counsel would vehemently contend that all rights have been relinquished in the year 2015 itself, what made the defendant in the said suit to became a signatory to the compromise in O.S.No.10494/2006 along with the plaintiff and also obtaining the confirmation deed in favour of both of them. 32 Hence, comes to the conclusion that whether the relinquishment deed is nominal document or outrately executed the same is a matter of trial and comes to the conclusion that matter requires to be enquired into in the Trial Court in paragraph No.19 also taken note of the said fact into consideration that whether they have treated the release deed as nominal or not and the same cannot be considered at this stage by considering particularly the material of compromise petition as well as confirmation deed and whether they are the joint owners and finding requires to be recorded in the suit since serious issues requiring determination in the trial. Hence, comes to the conclusion of prima facie case is made out. The Trial Court also considered both pleadings available on record and also the documents and when the Court comes to the conclusion that matter requires a trial and rightly formulated the point that the plaintiff has made out a prima facie case and at this stage when the plaintiff has made out prima facie case 33 and plaintiff is required to be granted temporary injunction not to alienate and if such order has not been passed, it would amounts to multiplicity of proceedings and litigation between the parties there cannot be a bonafide litigation and hence rightly comes to the conclusion that plaintiff has made out a prima facie case by answering the point No.1 as affirmative. Hence, I do not find any error committed by the Trial Court in granting the relief of temporary injunction that too not to alienate and create any 3rd party right. Hence, I do not find any force in the contention of the appellant's counsel that the Trial Court has committed an error in granting the relief of temporary injunction and the very contention that the Trial Court has misdirected and misread the document of release deed and other documents and also the compromise decree as well as confirmation deed cannot be accepted and the matter requires a full fledged trial in order to consider the relief of cancellation of release deed and also whether the plaintiff is entitled for 34 half share in the property in which both of them have been purchased jointly in the year 2013 and other documents which came into force subsequent to the purchasing of the property also to be considered during the course of the trial. Hence, I do not find any merit in the appeal.
21. In view of the discussions made above, I pass the following:
ORDER Both the appeals are dismissed.
Sd/-
JUDGE RHS