M/S Enterprises Software Solutions Lab vs Muthuswamy on 22 September, 2017

[Cites 13, Cited by 0]

Karnataka High Court

M/S Enterprises Software Solutions Lab vs Muthuswamy on 22 September, 2017

Bench: B. Veerappa

                            1

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 22ND DAY OF SEPTEMBER, 2017

                          BEFORE

       THE HON'BLE MR. JUSTICE B. VEERAPPA

        WRIT PETITION NO.16482/2017(GM-CPC)

BETWEEN:

M/S ENTERPRISES SOFTWARE SOLUTIONS LAB,
NO 437, 438, JUMMA MASJID ROAD,
(OPPOSITE ROAD), SHIVAJINAGAR,
BENGALURU.

REPRESENTED BY ITS DIRECTOR
ABBAS ALI BOHRA,
S/O LATE THYAB ALIE BOHRA,
AGED ABOUT 66 YEARS
R/AT NO 1109/3, 47TH CROSS,
5TH BLOCK, JAYANAGAR,
BENGALURU - 560041.
                                        ... PETITIONER

(BY SRI G. L. VISHWANATH, ADVOCATE)

AND:

MUTHUSWAMY,
S/O PALANI SWAMY,
AGED ABOUT 58 YEARS,
R/AT NO 63, 7TH MAIN,
3RD PHASE, J. P. NAGAR,
BENGALURU - 560078.
                                      ... RESPONDENT

(BY SRI D.L.N.RAO, SENIOR COUNSEL FOR
SRI RAJAGOPAL M. R. ADVOCATE FOR C/R)
                                 2

     THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DATED 16.2.2017 PASSED BY THE II
ADDITIONAL SENIOR CIVIL JUDGE, BANGALORE RURAL
DISTRICT,  BANGALORE       IN    M.A.NO.33/2016   AND
CONSEQUENTLY TO ALLOW THE SAID APPEAL.

     THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT
OF ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:

                          ORDER

The defendant filed the present writ petition to quash the impugned order dated 16.2.2017 made in M.A. No.33/2016 on the file of the II Additional Senior Civil Judge, Bangalore Rural district, Bangalore dismissing the appeal and confirming the order dated 13.6.2016 made in O.S. No.1212/2012 on the file of the 1st Additional Civil Judge, Bengaluru Rural District, Bengaluru, allowing the application filed by the plaintiffs under Order XXXIX Rules 1 and 2 r/w Section 151 of Code of Civil Procedure.

2. The present respondent, who is the plaintiff No.1 alongwith plaintiff Nos.2 and 3 filed the suit before the trial Court for Permanent Injunction restraining the 3 defendant, his agents, servants or anybody claiming through him from interfering with the plaintiffs' lawful and peaceful possession over the suit schedule properties, morefully described in 'A', 'B' and 'C' schedules to the plaint.

3. It is the case of the plaintiffs that plaintiff No.1 is the absolute owner and in possession of property bearing House site Old No.1/33-A, 1/33-B and 1/33-C in Khatha No.18, new House List NO.18, Property No.1/33C, measuring East to West 100 feet and North to south 87 feet, situated at Kalenaagrahara village, Begur hobli, Bangalore south taluk, which is morefully described in 'A' schedule to the plaint and plaintiff Nos.2 and 3 are the absolute owners and in possession of the property bearing House site old No.1/33-A, 1/33-B and 1/33-C in Khatha No.18, new House List No.18, Property No.1/33B, each measuring East to West 100 feet and North to South 43.5 feet respectively, 4 situated at Kalenaagrahara village, Begur Hobli, Bangalore south taluk, which are morefully described in 'B' and 'C' schedules to the plaint. It is the case of the plaintiffs that the suit schedule properties are acquired under three separate registered sale deeds dated 3.9.2001 and 22.11.2001; Since the original registered sale deeds pertaining to the schedule properties are already filed in O.S. No.1210, 1212 and 1214/2004, which are pending before the trial Court, the certified copies of the said sale deeds are filed in the present suit; and the suit schedule properties which are described as House site Old No.1/33-A, 1/33-B and 1/33-C in Khatha No.18, new House List No.18 are part and parcel of the properties comprising in Sy.Nos.33/1 and 35 of Kalenaagrahara village, Begur hobli, Bangalore south taluk.

4. It is further case of the plaintiffs that one Anthoniyappa, who was the erstwhile owner of the suit 5 schedule properties alongwith his sons viz., A. Rogery, Nelson, A. Kumar and Balaraj executed registered sale deed dated 6.1.1992 in favour of one Gautham and the schedule property in the said sale deed is measuring East to West 100 feet and North to South 87 feet. Similarly the very Anthoniyappa and his family members have executed one more registered sale deed on the same day i.e., 6.1.1992 in favour of one Venkatesh Tamularkar and the schedule property in the said sale deed is measuring East to West 100 feet and North to South 87 feet.

5. It is further case of the plaintiffs that the said Gautham has sold half of the property which he acquired under the registered sale deed dated 6.1.1992 in favour of the 2nd plaintiff - Palaniswamy under the registered sale deed dated 3.9.2001 and the schedule property in the said sale deed is measuring East to West 100 feet and North to South 43.5 feet, in all 4,350 6 square feet. The remaining part of the land which Mr. Gautham acquired under the registered sale deed dated 6.1.1992 was sold by him in favour of the 3rd plaintiff - Kaliammal on the same day. In view of the aforesaid two sale deeds, the plaintiff Nos.2 and 3 have acquired title to the 'B & 'C' schedule properties respectively and they are in peaceful and lawful possession and enjoyment of the said properties. The schedule properties are assessed by the then Basavanapura Gramapanchayath and the plaintiffs are paying taxes to the said Basavanapura Gramapanchayath.

6. It is further case of the plaintiffs that the property purchased by Venkatesh Tamlurkar under the registered sale deed dated 6.1.1992 was sold by him in favour of the 1st plaintiff - Muthuswamy under the registered sale deed dated 22.11.2001, which is shown as 'A' schedule property in the plaint. As such, the 1st plaintiff become the lawful owner and in possession of 7 the 'A' schedule property. It is further case of the plaintiffs that half of the property purchased by A.B. Gautam under the registered sale deed dated 6.1.1992 was sold by him in favour of the 2nd plaintiff - Palaniswamy under the registered sale deed dated 3.9.2001 and the remaining part of the land which he purchased under the registered sale deed dated 6.1.1992 was sold by him in favour of the 3rd plaintiff - Kaliammal under the registered sale deed dated 3.9.2001, which are shown as 'B' and 'C' schedule properties in the plaint. As such, the plaintiffs have become lawful owners in possession of A,B and C schedule properties.

7. It is further case of the plaintiffs that when things stood thus, the erstwhile owner Anthoniyappa had played fraud on the plaintiffs taking advantage of the property numbers shown in the sale deeds executed in favour of the vendors of the plaintiffs herein in 8 khatha numbers. Since the entries in revenue records continued in Sy.No.33/1 and 33/5, though Anthoniyappa had no property, he executed the registered sale deeds in favour of one Sri P. Ramachandra and Smt. Bhagyalakshmi under two separate sale deeds dated 17.8.2004 and accordingly, said Ramachandra and Bhagyalakshmi got their names effected in the mutation register as well concerned revenue records. In view of these developments, threats exposed by Sri Anthoniyappa, who was the erstwhile owner of the schedule properties alongwith one Shantharaju. As such, the plaintiffs have filed three separate suits in O.S. No.1210, 1212 and 1214/2004 before the Civil Judge (Jr.Dn.), Bangalore and the trial Court granted Temporary Injunction which was in force and still subsisting and binding on the parties. Now, the said Anthoniyappa is no more and therefore the said suits are being prosecuted against Shantharaju, who is defendant No.2 in the said suits.

8. It is further case of the plaintiffs that the purchasers of the land from Sri Anthoniyappa viz., P. Ramachandra and Bhagyalakshmi filed O.S. No.34/2005 before the competent Civil Court for a declaration and injunction and the said suit is still pending. The present plaintiffs, who are the defendants in the said suit filed the written statement and also pleaded various facts to demonstrate that the plaintiffs herein are the owners in possession of the suit schedule properties. It is also contended that said Ramachandra and Bhagyalakshmi also filed I.A. for Temporary Injunction in the said suit. The trial Court considering the material on record, rejected the application for Temporary Injunction holding that the plaintiffs in O.S. No.34/2005 i.e., Ramachandra and Bhagyalakshmi are not in physical possession of the schedule property. Being aggrieved, Ramachandra and Bhagyalakshmi filed M.A. No.100/2005 before the first appellate Court. The first appellate Court directed the 10 parties not to put up any structures or construction in the suit properties, pending disposal of the suit and the order of the trial Court was confirmed regarding granting the order of Temporary Injunction.

9. It is further case of the plaintiffs that though the application filed by Ramachandra and Bhagyalakshmi in O.S. No.34/2005 for Temporary Injunction was rejected, said Ramachandra and Bhagyalakshmi approached the Special Deputy Commissioner suppressing the pendency of O.S. No.34/2005 and dismissal of the application for Temporary Injunction and got the order of conversion in respect of 11.04 guntas. The Special Deputy Commissioner who passed such order is under suspension and facing criminal prosecution.

10. It is further case of the plaintiffs that during the pendency of O.S. No.34/2005, P. Ramachandra and Bhagyalakshmi knowing fully well that there is a 11 serious dispute to their title, possession and interest, sold the portion of the property in favour of the defendant herein by way of registered sale deed dated 5.2.2011 and the sale deed executed in respect of 11.04 guntas in Sy.No.33/1 and 35/1 of Kalena Agrahara village, which are admittedly the suit schedule properties in O.S. No.34/2005. On the basis of these materials, the defendant is making all efforts to interfere with the peaceful possession and enjoyment of the suit schedule properties by the plaintiffs. The conduct of the defendant and his vendors is not judicially acceptable one. In O.S. No.34/2005 filed by the vendors of the defendant for declaratory relief, no interim order is granted. Further, against the erstwhile owner - Anthoniyappa, three suits are filed by the plaintiffs herein in O.S. No.1210/2004, 1212/2004 and 1214/2004 and the trial Court has granted an order of Temporary Injunction and the said order was in force as on the date of filing of the suit. On these and among 12 other grounds, the plaintiffs filed the suit for the reliefs sought for.

11. The defendant filed the written statement and denied the entire plaint averments and contended that Anthoniyappa was the resident of Kalenaagrahara village, Begur hobli, Bangalore south taluk and he was the owner of Sy.No.35 to an extent of 7 guntas and Sy.No.33 to an extent of 22 guntas, both situated at Kalenaagrahara village, Begur hobli, Bangalore south taluk. The said Anthoniyappa alongwith his four sons executed registered sale deed on 6.1.1992 in favour of one Gautham s/o A.S. Balaram, of a vacant site with shed, measuring East to West 100 feet and North to South 87 feet, which forms a portion of Khatha No.1/33-A, 1/33-B and 1/33-C situated at Kalenaagrahara village, Begur hobli, Bangalore south taluk without declaring as to in which portion of the survey number, the aforesaid property is located. 13 Furthermore, nowhere in the sale deed it has been described as to the origin of khatha numbers 1/33-A, 1/33-B and 1/33-C. Therefore, the property conveyed by the said Anthoniyappa in favour of Gautham cannot be identified as part or portion of which survey number. Therefore the sale deed executed by Anthoniyappa in favour of Gautham does not spell out the identity of the location. Similarly on 6.1.1992, said Anthoniyappa alongwith four sons had executed sale deed in favour of Venkatesh Tamlurkar, which also does not spell out as to the identity or locality of the property.

12. It was further contended that Sy.No.33/1 of Kalena Agrahara village originally owned by father of Anthoniyappa by name Anthoniyappa s/o Muthappa. After the demise of father of Anthoniyappa, the said property was mutated in the name of Anthoniyappa as an inheritor on 29.1.2005. Obviously, earlier to 2004, Sri Anthoniyappa had no right whatsoever to convey 14 any part or portion of Sy.No.33/1 in favour of anybody, muchless in favour of said Gautham and Sri Venkatesh Tamlurkar. Therefore it is very clear that the sale deeds executed by Anthoniyappa in favour of aforesaid persons are sham documents and they have no legal sanctity. It was further contended that when the purchaser - Gautham himself did not obtain any right, title and interest in respect of the property that he purchased under the sale deed dated 6.1.1992, he had no right to convey the same in favour of plaintiff Nos.2 and 3. Therefore the plaintiffs are not entitled to any relief.

13. The defendant further contended that in O.S. No.34/2005 filed by Ramachadnra and Bhagyalakshmi though the prayer for grant of Temporary Injunction was rejected, the first appellate Court in M.A. No.100/2005 directed both the parties not to put up any structures or construction in the suit properties, 15 pending disposal of the suit. It is further contended that since Sri P. Ramachandra having been declared truly as the absolute owner in possession of Sy. Nos. 33/1 & 35 of Kalenaagrahara village, he conveyed both the properties under two different sale deeds in favour of the defendant for a valuable consideration after obtaining conversion under Section 95 of the of the Karnataka Land Revenue Act from the competent authorities and the defendant is in possession and enjoyment of Sy.No.33/1 and 35. The same has been suppressed by the plaintiffs and therefore sought for dismissal of the suit.

14. The plaintiffs also filed I.A. No.1 for Temporary Injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the suit schedule properties by the plaintiffs, reiterating the plaint averments. The same was resisted by the 16 defendant by filing objections, reiterating the averments made in the written statement.

15. The trial Court considering the pleadings of both the parties and considering the material available on record by an order dated 13.6.2017 allowed I.A. No.1 filed under Order XXXIX Rules 1 and 2 r/w Section 151 of Code of Civil Procedure and granted Temporary Injunction restraining the defendant from interfering with the plaintiffs' peaceful possession and enjoyment of the suit schedule properties till the disposal of the suit. Aggrieved by the said order, the defendant filed appeal in M.A. No.33/2016 on the file of the II Addl. Senior Civil Judge, Bangalore Rural district, Bangalore. The first Appellate Court after hearing both the parties by an order dated 16.2.2017 dismissed the appeal and confirmed the order passed by the trial Court granting Temporary Injunction. Hence the present writ petition is filed by the defendant.

16. I have heard the learned Counsel for the parties to the lis.

17. Sri G.L. Vishwanath, learned Counsel for the petitioner has pointed out that plaintiff Nos. 1 and 2 died on 14.1.2013 and 23.1.2013 respectively; that 'A' schedule property measures 8700 sq. ft., 'B' schedule property measures 4,350 sq. ft. and 'C' schedule property measures 4,350 sq. ft. totaling to 17,400 sq. ft.; that Sy.No.33/1 is not facing the road; and that in between Bannerghatta road and West of Sy.No.33/1, there is a land bearing Sy.No.35. He would further contend that predecessors of the original plaintiff - Anthoniyappa had filed a suit - O.S.No. 546/1990 which came to be decreed on the basis of the compromise dated 18.7.1990 and in the property scheduled to the said suit was Sy.Nos. 33/1 measuring 33 guntas which is an ancestral property. The Western boundary of the said property measuring 33 guntas was 18 shown as Sy.No.35 which belonged to the plaintiffs in the said suit. In the compromise petition the schedule was also mentioned on par with the plaint. The Western side of Sy.No.33/1 is Sy.No.35 belonging to the plaintiff.

18. The learned Counsel further pointed out that on the basis of the decree, the said Anthoniyappa executed two sale deeds, dated 6.1.1992 in favour of Sri Venkatesh Tamlurkar and another dated 3.9.2001 in favour of Sri S.A. Gautham. The recitals of the said at para-3 refers to the compromise decree in O.S.No.546/1990 wherein both the schedules and the survey numbers disclose that site with shed measures East to West 100 ft. and North to South 87 ft., which is a portion of Khatha Nos.1/33A, 1/33B and 1/33C Hulimavu Village Panchayath, situated at Kalenaagrehara village, Begur Hobli, Bengaluru South Taluk, Bengaluru. He further pointed out that there is 19 no reference in respect of Sy.No.33/1 in the said sale deeds.

19. He would further contend that the said Sri A.B. Gautham, who purchased the said site has sold site bearing old Nos.1/33A, 1/33B and 1/33C in Khata No.18, New House List No.18, in favour of Sri P. Palaniswamy under the registered sale deed dated 3.9.2001 and the measurement is shown as 100 ft. towards East to West and 43.5 ft. towards North to South and in all measuring 4350 sq. ft. The boundary shown in the sale deed is road on the Western side. On the same day, another sale deed was executed by Gautham in favour of Smt. Kaliammal, site old No.1/33A, 1/33B and 1/33C in Khatha No.18, New House List No.18, property No.1/33B situated at Kalenaagrahara village, Basavanapura Panchayat, Begur Hobli, Bangalore South Taluk measuring East to West 100 ft. and North to South 43.5 ft. in all 20 measuring 4350 sq. ft. wherein the Western side is bounded by road. In another sale deed executed by Sri Venkatesh Tamlurkar in favour of Sri P. Muthuswamy on 22.11.2001 in respect of site bearing Old No.1/33A, 1/33B and 1/33C in Khatha No.18, New House List No.18, property No.1/33C situated at Kalenaagrahara village, Basavanapura Panchayat, Begur Hobli Bangalore South Taluk measures East to West 100 ft and North to South 87 ft., in all measuring 8700 sq. ft.

20. He further contended that Anthoniyappa filed O.S.No. 463/2003 for permanent injunction against Muthuswamy with regard to Sy.No.35 measuring 14 guntas. As per the schedule in the said suit, the western side of the property is shown as Bannerghatta road. The learned Counsel for the petitioner has contended that the site of the respondent was formed out of Sy.No.33/1. He further contended that Sri P. Ramachandra and N. Bhagyalakshmi filed 21 O.S.No.34/2005 against the present respondent in respect of Sy.Nos. 33/1 and 35 wherein temporary injunction was rejected which was ultimately challenged in M.A.No.100/2005. He has further pointed out that at para-4 of the plaint, the present respondent has stated that the suit schedule properties are described as house site Nos. 1/33A, 1/33B and 1/33C of Katha No.18 new house list No.18 and it is none other than the part and parcel of property comprising Sy.No. 33/1 and Sy.No.35 of Kalengaagrahara village, Begur Hobli, Bangalore South Taluk appears to be incorrect.

21. The learned Counsel for the petitioner while relying upon the sale deed dated 6.1.1992 executed by Anthoniyappa and others in favour of Venkatesh Tamlurkar on the basis of the decree made in O.S.No. 546/1990, pointed out that para-3 of the sale deed depicts that the first vendor - Anthoniyappa became the owner and in possession of the property bearing 22 Sy.No.33/1 of Kalenaagrahara village, Begur Hobli, Bangalore South Taluk bounded on the East by Chowrappa's property and West by property belonging to the first vendor - Anthoniyappa in pursuance of the compromise decree passed in O.S.No. 546/1990.

22. The learned Counsel further contended that the sale deed depicts the property as site with shed measuring East to West 100 feet and North to South 87 feet (8,700 sq.ft.) which is a portion of Khata No. 1/33A, 1/33B and 1/33C of Hulimavu Village Panchayath and is bounded on the West by Banneghatta road. Therefore, he would submit that the said property be construed as Sy.No.33/1. So also the sale deed executed by Anthoniyappa in favour of Sri A.B. Gautham reflects the same.

23. The learned Counsel relying upon the sale deeds executed by A.B. Gautham in favour of Palaniswamy on 3.9.2001 and Venkatesh Tamlurkar on 23 22.11.2001 contended that it is mentioned as North Western property bearing Sy.No. 1/33A, 1/33B and 1/33C measuring East to West 100 ft. and North to South 43.5 ft. and are bounded on the West by road in both the sale deeds. He further contended that no material document is produced to show how the property is relating to Khata No.1/33A, 1/33B, 1/33C and has become Sy.No.33/A.

24. The learned Counsel also relied upon the order dated 10.2.2004 passed by the trial Court on I.A.1 made in O.S.No.463/2003 at paragraphs 9 and 11 which are as under:

9. The specific contention of defendant is that defendant has purchased a site from Venkatesh Talmulkar. He further contended that Plaintiff has formed sites in his property bearing Sy.No.33/1 and sold it to several persons including Venkatesh Talmulkar. Defendant has purchased one such site from 24 Venkatesh Talmulkar and defendant is in possession of it. In support of his case, defendant has produced Xerox copy of Sale deed dated 22.11.2001.

According to this document, Venkatesh Talmulkar has sold site bearing No.1/33A, 1/33B and 1/33C in katha No.18, New House List No.18, property No.1/33C situated at Kalena Agrahara Village measuring East to West 100 feet and North to south 87 feet to defendant and this document also reveals that Venkatesh Talmulkar has purchased the said property from A.Anthoniyappa. On perusal of this document it reveals that there is no recital in this document that this is formed in which Survey number. However, in the arguments, the learned counsel for defendant has stated that the site of defendant was formed out of Sy No.33/1. Admittedly suit schedule property is bearing Sy. No.35 and not 33/1. Even if the contention of defendant is taken as correct that his property is formed out 25 Sy.No.33/1, then said property is no where concerned to the suit schedule property. Hence the say of defendant that his property is part and parcel of suit schedule property appears to be not correct.

11. In support of his case, defendanthas produced only Xerox copy of his sale deed and Xerox copy of sale deed executed by Anthoniyappa in favour of Gautham and Gautham in favour of Palaniswamy and Palaniswamy in favour of Kaliammal. All the above sale deeds are pertaining to property bearing Katha No.1/33A, 1/33B and 1/33C. As per the arguments of defendant's counsel, those sites were formed out of Sy.No.33/1 and not out of Sy No.35.

Under such circumstances, mere production of sale deed of some other persons and production of sale deed of defendant will not prove their case because admittedly Sy.No.35 is 26 different from Sy. No.33/1A. Hence, as it is, defendant has no property in Sy.No.35.

25. The learned Counsel for the petitioner further contended that the schedule in the plaint of O.S.No.1212/2012 discloses that there are Schedule-A, Schedule-B and Schedule-C properties. Schedule-A is in respect of property No.1/33C, Schedule-B is in respect of property No.1/33B and Schedule-C is in respect of property No.1/33B and in respect of Sy.No.1/33A, absolutely no measurement is given and no document is produced. It was further contended that the said suit (O.S. No.1212/2012) came to filed because of the cause of action that arose only on 24.8.2012 which has been stated at paragraph-18 of the said plaint. He further contended that absolutely nothing has been averred by the plaintiffs in the application for temporary injunction with regard to continuous possession of the property from the date the 27 cause of action arose and till the injunction was granted by the trial Court for the first time on 13.6.2016. He further contended that there is serious dispute with regard to the identity of the property i.e., measurement, location, survey number, etc., and hence, equitable order of temporary injunction cannot be granted.

26. The learned Counsel for the petitioner further contended that in the affidavit filed by the respondent before this Court on 12.6.2017, he has stated that he has constructed a shed and has obtained electricity to the entire suit schedule properties. He has neither pleaded nor has produced any document before the Court and it is for the first time, he has pleaded the same before the Court. Both the Courts below have not considered the material documents produced by the present petitioner showing that he is in possession and enjoyment of the suit schedule properties as on the date of the suit filed and respondent is not in possession and 28 has also not produced any document to show that he is in possession of the suit properties as on the date of the suit.

27. Sri Vishwanath, learned Counsel for the petitioner further contended that both the Courts below have not considered the following documents:

1. Order dated 19.8.2016 in MA 100/2005

2. Photographs of petitioner

3. Photographs of Petitioner

4. Khata and Extract

5. Tax paid receipts

6. Compromise Petition is O.S.No.546/1990

7. Taluk Surveyor Sketch

8. Conversion Order

9. Order dated 10.2.2004 in OS No.463/2003.

10.Objection Statement of Muthuswamy contending that sites are formed in Survey No.33/1.

11.Death Certificate of Palaniswamy and Kaliammal

12.Photographs.

28. The learned Counsel for the petitioner strongly contended that the original plaintiff No.2 - 29 Palaniswamy died on 14.1.2013 and plaintiff No.3 - Smt. Kaliammal died on 21.3.2013 and to that effect, the plaintiffs filed a memo on 3.7.2013 by which time, the suit against plaintiff Nos. 2 and 3 had already abated. It is also stated in memo that plaintiff No.1 is the only son of plaintiff Nos. 2 and 3 and therefore, the 1st plaintiff may be treated as legal representative of plaintiff Nos. 2 and 3. Till today, the trial Court has not allowed the said application and therefore, the trial Court cannot grant injunction in favour of the plaintiffs, who are dead which was affirmed by the Lower Appellate Court. Therefore, he submitted that the impugned order passed by the trial Court and affirmed by the Lower Appellate Court is erroneous and contrary to the material on record.

29. The learned Counsel further contended that Sy.No.33/1 is entirely different from Sy.No.33/5 and 35/2 purchased by the petitioner-defendant and he is in 30 possession and enjoyment of the suit schedule properties as on the date of the suit, but the trial Court has not considered the material fact which was erroneously affirmed by the Lower Appellate Court. He further contended that the trial Court proceeded to grant injunction only on the basis that in O.S.Nos. 1210/2004, 1212/2004 and 1214/2004 temporary injunction had already been granted in favour of the respondents and not against the present petitioner or vendors but against other respondents-defendants in respect of very suit properties without considering the material documents produced and the same has been affirmed by the Lower Appellate Court without considering the documents on record. Therefore, he sought to quash the impugned orders passed by the Court below by allowing the present writ petition.

30. Per contra, Sri D.L.N. Rao, learned Senior Counsel appearing for the respondent-plaintiff 31 contended that plaintiff No.1 is a party to O.S.No.1212/2012 along with plaintiff Nos.2 and 3; Plaintiff No.2 died on 14.1.2013 and plaintiff No.3 died on 23.1.2013 and the same is not in dispute; A memo dated 3.7.2013 was filed before the trial Court stating that plaintiff No.1 is the son of plaintiff Nos.2 and 3 and to treat plaintiff No.1 as legal heir of plaintiff Nos.2 and 3; Therefore question of abatement does not arise since plaintiff No.1 had already been on record and was representing other plaintiffs also. In support of his contentions, he relied upon the judgment of the Hon'ble Supreme Court in the case of MOHAMMAD ARIF .vs. ALLAH RABBUL ALAMIN AND OTHERS {(1982)2 SCC 455} and in the case of MAHABIR PRASAD .vs. JAGE RAM AND OTHERS {(1971)1 SCC 255}. He further contended that no ground is made out in the writ petition with regard to the abatement and in the absence of any ground, the contention of abatement raised for the first time before 32 this Court, at the time of arguments, cannot be considered.

31. The learned Senior Counsel for the respondent further pointed out that paragraph-18 of the plaint does not depict about possession of the petitioner-defendant as alleged by the learned Counsel for the petitioner. In paragraph-4 of the plaint, it is clearly stated that the suit schedule properties are described as house site old Nos.1/33-A, 1/33-B and 1/33-C in Katha No.18, new House List No.18 and it is none other than the part and parcel of the property comprising in Sy.No.33/1 and Sy.No.35 of Kalenaagrahara village, Begur hobli, Bangalore South Taluk. He also invited attention of the Court to para-5 of the plaint wherein in the registered sale deeds executed by Anthoniyappa and his family members in favour of Gautham and Venkatesh Tamlurkar, the measurement of the schedule property is shown as East to West 100 feet and North to South 33 87 feet and Western boundary is shown as Bannerghatta road. It is further contended that at paragraphs 11 and 12 of the plaint, it is specifically pleaded that the purchasers of the land from Sri Anthoniyappa viz., Sri P. Ramachandra and Smt. Bhagyalakshmi had filed O.S. No.34/2005 for declaration and permanent injunction and they had also filed an application for temporary injunction. The trial Court rejected the application for temporary injunction holding that Ramachandra and Bhaghyalakshmi have not made out any primafacie case to show that they are in possession of the suit schedule properties mentioned therein.

32. The Lower Appellate Court in M.A. No.100/2005 confirmed the said order and directed the parties to maintain status-quo with regard to the shed constructed in the part of the schedule property. 34 Ultimately, the said suit came to be abandoned (dismissed for non-prosecution).

33. The learned Senior Counsel further pointed out that O.S. No.546/1990 was filed by Anthoniyappa for permanent injunction against the defendants therein in respect of the land bearing Sy.No.33/1 measuring 37 guntas of Kalenaagrahara Village, Begur Hobli, Bangalore South Taluk. In the said suit, the plaintiff has stated that he got the schedule property therein under the partition deed dated 28.1.1983 which was effected among the plaintiff and the defendants therein. In the schedule, Western boundary is shown as Sy.No.35 belonging to the plaintiff - Anthoniyappa.

34. The learned Senior Counsel for the respondent further contended that Anthoniyappa executed seven different sale deeds long before the sale deeds were executed in favour of Ramachandra and Bhagyalakshmi and the same was stated by the present 35 plaintiffs, who are defendants in O.S.No.34/2005. At paragraph-16 of the written statement, detailed transactions by the original owner - Anthoniyappa has been clearly mentioned. Therefore, the vendors of the defendants viz., Ramachandra and Bhagyalakshmi, who are plaintiffs in O.S. No.34/2005, have not acquired any title on the basis of the alleged sale deeds much less nor have gained any interest on the suit schedule properties mentioned therein. When that being the situation, the possession as well as title claimed by the plaintiffs - Ramachandra and Bhagyalakshmi have no basis at all.

35. The learned Senior Counsel further pointed that when the alienation was made by Anthoniyappa in favour of Ramachandra and Bhagyalakshmi as on the date of alienation, there was nothing to alienate in favour of them and the defendants therein have not produced the said alleged documents before the trial Court at the time of considering the application, but 36 they are produced at the latter stage in the present suit by the petitioner-defendant which are as under:

1. Sale deed dated 6.1.1992

2. Sale deed dated 6.1.1992

3. Mutation Extract

4. Survey Hissa

5. Attlas 6. Plaint in O.S. 50/2004

7. Compromise petition in O.S. No.50/2004

8. Order sheet in O.S. No.50/2004

9. Sale deed dated 17.8.2004

10. Sale deed dated 17.8.2004 11. Judgment in MA No.100/05

12. Release deed dated 4.9.2006 by Bhagyalakshmi to Ramachandra.

13. Two registered Release deeds dated 5.2.2011 and 8.2.2011 executed by Bhagyalakshmi to Ramachandra.

14. Photographs

15. RTC's in 5 Nos.

36. The learned Senior Counsel appearing for the respondent-plaintiff invited attention of the Court to the finding recorded by the trial Court in O.S. No.34/2005 filed by P.Ramachandra and N.Bhagyalakshmi, while considering the contentions of both sides which reads as under:

"10. On behalf of the defendants contention, the defendants have produced the copy of the registered sale deed dated 3-9-2001, the copy of the registered sale deed dated 22-11-2001, the copy of the registered sale deed dated 6-1-1992, the copy of the registered sale deed dated 12-4-1958, the copy of the registered sale deed dated 30.4.1983, certified copy of the plaint, order sheet, compromise petition and decree in O.S. 546/90, the copy of the orders passed on I.A. in O.S.1210/2004, O.S.1212/2004 and O.S. 1214/2004, the copy of the orders passed on I.A. in CRRP No.5/2005, CRRP No.6/2005 and CRRP No.7/2005, 38 the notice issued by Sub-Inspector of Police, Bannerghatta, dated 16-1-2005, the copy of the orders passed by the Taluka Magistrate in RRT dispute No.15/2004-2005 dated 18-1-2005, rough sketch in Sy.No.33/1 and 35, the copy of the registered sale deed dated 29.6.1989, the copies of the registered sale deed dated 17-2-1997, 18-11- 1999, 29-12-2004, the copies of the assessment register extracts of property No.1/33B for the years 2004-2005, copy of the assessment register extract of property No.1/33-C for the year 2004-2005, copy of the tax demand register extract of property No.1/33-B for the year 1994-95, copy of the tax demand register extract of property No.1/33B for the year 1991-92, copy of the tax demand register extract of property No.1/33B for the year 1994- 95, tax paid receipt of property No.1/33-A, No.1/33-B and No.1/33-C and developmental charges paid receipts, copy of the encumbrance 39 certificate of site No.1/33-A, No.1/33-B and No.1/33-C for the year 1972-2001, 2001-2003, RTC of Sy. No.33/1 for the year 2004-2005, RTC of Sy. No.35 for the year 2004-2005, building license issued by Basavanapura Grams Panchayath dated 14-8-2002, certified copy of Tippani of Sy. No.33/1 and No.35, certified copy of RR of Sy.No.33/1, certified copy of Akarbhundh of Sy. No.33/1 and No.35, certified copy of Village Map, certified copy of sanction of power supply to katha No.18, paper publication dated 27-12-2004, photographs, copy of tax demand register extract of property No.14/1 for the year 1993-94, copy of the assessment register extract of property No.14/1 and No.18 for the year 1999, copy of the tax paid receipts dated 12-3-1994 and 8-9-1999, copy of the encumbrance certificates for the year 1989 -2004, copy of the complaint given to the jurisdictional police dated 21-1-2005.

11. On perusal of two registered sale deed dated 17.8.2004, produced by the plaintiffs, the plaintiffs jointly purchased property measuring 0-07 guntas in sy. No.35 and 19 guntas in Sy. No.33/1 respectively of Kalena Agrahara Village, The plaintiff purchased the suit schedule property from Anthoniappa and his family on 17- 2-2004 under registered sale deed dated 17-8-2004. Subsequently, revenue entries are mutated in the name of plaintiffs. Whereas the defendant stated that they purchased the property wherein katha No.1/33-A, 1/33- and No.1/33-C in the year 2001. Their vendors purchased the properties from Anthoniappa. Anthoniappa is also sold the suit schedule property to the plaintiffs. It is the claim of the defendants that the property, which they are claiming is the part of Sy. No.33/1 as well as 35 of Kalena Agrahara Village. The contention raised 41 by the defendants that Anthoniappa obtained property bearing Sy.No.33/1 measuring 37 guntas in compromise decree and he acquired Sy. No.35 measuring 14 guntas under registered sale deed. The vendor of the plaintiff already sold entire extent of land to different persons and all these alienation taken place before 29-6-1989 to 17-3-1997. To prove that the defendants are purchased the property in 1/33A, 1/33B and 1/33C the defendants produced copy of the registered sale deeds dated 3.9.2001 and 22.11.2001. The defendant produced the copy of the registered sale deed in connection to the above transaction made by the plaintiffs vendor. The property bearing Sy. No.133/B measuring 4350 square feet sold to the 2nd defendant and property bearing 133/C measuring 8700 square feet is sold to the 1st defendant as per the registered sale deed. On perusal of the registered sale deed dated 6-1-92 it 42 appears that Anthoniappa and his family members sold portion of katha No. 1/33A, 1/33B and 1/33C to defendants vendor. In the sale deed dated 6-1-92 it is stated that by virtue of compromise decree in O.S.546/90 a schedule property has been acquired by Anthoniappa. In O.S.546/90 the injunction is sought for in respect of property bearing No.33/1 of Kalena Agarahara village, Begur Hobli, Bangalore South Taluk. Hence it is clear that Anthoniappa obtained he property as per the compromise in O.S.546/90 is property bearing Sy. No.33/1. the said Anthoniappa sold an extent of 4900.05 Square feet in favour of Jayanthi rao under Registered sale deed dated 17-2-97 and he sold another portion measuring to an extent of 6500 square feet in favour of one Sebastian under registered sale deed dated 29-6-89 and Anthoniappa has sold 8700 sq.ft. in favour of Narasingharaju Gayakwad sale deed 43 dated 18-1-91 and 8700 sq. ft. each sold in favour of one Goutham and Venkatesh under registered sale deed dated 18-1-91. An area of 11 guntas was sold in favour of one Lakshmamma. It is the contention of the defendant that no land is in existence to sell the property as alleged by the plaintiff. The Village Accountant of Hulimavu Panchayath stated that-

"CfðzÁgÀgÁzÀ ¦. gÁªÀÄZÀAzÀæ ªÀÄvÀÄÛ ¨sÁUÀå®Qëöägª À g À ÀÄ PÉÆÃjgÀÄªÀAvÉ zÁR¯É ¥Àj²Ã°¸À¯ÁV ºÀÄ½ªÀiÁªÀÅ ªÀÈvÀÛzÀ PÀAzÁAiÀÄ zÁR¯ÉU¼ À ° À è SÁvÁ £ÀA: 1:33J, 1:33© ªÀÄvÀÄÛ 1:33¹ d«ÄÃ£ÀÄUÀ¼À §UÉÎ J. DAzÉÆÃt¥Àà ©£ï ¢. DAzÉÆÃt¥Àà ªÀÄvÀÄÛ EªÀgÀ ªÀÄPÀÌ¼ÀÄUÀ¼À ºÉ¸g À ÀÄUÀ¼° À è CxÀªÁ EªÀgÀÄ CfðAiÉÆA¢UÉ ®UÀwÛ¹gÀÄªÀ PÀA æ iÀÄ ¥Àvz Àæ À ¸ÀASÉå:4461:91:92 ¢£ÁAPÀ 18-1-1991 ¥Àvz Àæ A À vÉ J.©.UËvÀªÀiï ©£ï §®gÁªÀiï ªÀÄvÀÄÛ jf¸ÀÖgï £ÀA.4462:91:92 ¢£ÁAPÀ 22-1-92 gÀAzÀÄ PÀA æ iÀÄ¥Àvz Àæ A À vÉ ªÉAPÀmÃÉ ±ï vÀªÀÄÆègïPÀgï ©£ï ©. vÀªÀÄÆègïPÀgï §®gÁªÀiïgÀªg À ÀÄUÀ¼À ºÉ¸g À ÀÄUÀ¼¯ À ÁèU° À £Àª À ÀÄä PÀbÃÉ jAiÀÄ zÁR¯ÁwUÀ¼° À è SÁvÉ 44 zÁR¯ÉU¼ À ÁVgÀÄªÀÅ¢®èªA É zÀÄ F ªÀÄÆ®PÀ w½AiÀÄ¥Àr¹gÀÄvÉÛ."

But this endorsement is not relevant as the property claimed by the defendant as the property situated at Kalena Agrahara Village Panchayath."

37. The learned Senior Counsel further contended that the trial Court while considering the material documents in O.S. No. No. 1212/2012 at paragraphs-10 and 11 has recorded a specific finding as under:

10. ªÁ¢AiÀÄgÀÄ vÀªÀÄä PÉÃ¹UÉ ¥ÀÆgÀPª À ÁV ¢£ÁAPÀ 30.08.2011gÀ JgÀqÀÄ ªÀÄÆ® f¦JAiÀÄ£ÀÄß, ¢£ÁAPÀ 03.09.2001gÀ PÀA æ iÀÄ¥Àvz Àæ À £ÀPÀ®ÄUÀ¼£ À ÀÄß, ¢£ÁAPÀ 22.11.2001gÀ PÀA æ iÀÄ¥Àvz Àæ À £ÀP® À £ÀÄß, ¢£ÁAPÀ 06.01.1992gÀ JgÀqÄÀ PÀA æ iÀÄ¥Àvz Àæ À £ÀP® À ÄUÀ¼£ À ÀÄß, NJ¸ï.1210/04gÀ DqÀðgï²Ãmï ªÀÄvÀÄÛ CfðAiÀÄ £ÀP® À £ÀÄß, NJ¸ï.1212/04gÀ DqÀðgï²Ãmï ªÀÄvÀÄÛ CfðAiÀÄ £ÀP® À £ÀÄß, NJ¸ï.1214/04gÀ DqÀðgï²Ãmï ªÀÄvÀÄÛ CfðAiÀÄ £ÀP® À £ÀÄß, NJ¸ï.1210/04, 1212/04 ªÀÄvÀÄÛ 1214/04gÀ ªÀÄzsÀåAvÀgÀ CfðAiÀÄ £ÀP® À £ÀÄß, ¢£ÁAPÀ 16.08.2011gÀ 3 ªÀÄÆ® vÉjUÉ ¥ÁªÀw gÀ¹Ã¢UÀ¼£ À ÀÄß, ¢£ÁAPÀ 28.08.12gÀ 3 ªÀÄÆ® vÉjUÉ ¥ÁªÀw gÀ¹Ã¢UÀ¼£ À ÀÄß, 3 ªÀÄÆ® IÄt¨sÁgÀ gÁ»vÀå ¥Àª æ ÀiÁt ¥ÀvU Àæ ¼ À £ À ÀÄß, ¢£ÁAPÀ 45 17.08.2004gÀ PÀA æ iÀÄ¥Àvz Àæ À £ÀP® À ÄUÀ¼À£ÀÄß , NJ¸ï.34/05gÀ CfðAiÀÄ £ÀP® À £ÀÄß N.J¸ï.34/05gÀ °TvÀ ºÉÃ½PÉAiÀÄ £ÀP® À £ÀÄß NJ¸ï 34/05gÀ ªÀÄzsÀåAvÀgÀ CfðAiÀÄ £ÀP® À £ÀÄß JA.J. 100/05gÀ wÃ¦ð£À £ÀP® À £ÀÄß ¢£ÁAPÀ 05.02.2011gÀ PÀA æ iÀÄ¥Àvz Àæ À £ÀP® À £ÀÄß 6 ¥ÉÆÃmÉÆÃUÀ¼£ À ÀÄß, ¢£ÁAPÀ 30.08.2012gÀ ªÀÄÆ® ¥ÉÆÃmÉÆÃ£À ©®è£ÀÄß, ¹.r.AiÀÄ£ÀÄß ªÉÄÃ®ÌAqÀ zÁR¯ÉU¼ À £ À ÀÄß ºÁdgÀÄ¥Àr¹zÁÝg.É

11. ¥Àw æ ªÁ¢AiÀÄÄ vÀ£Àß ¥ÀæwgÀPÀëuU É É ¥ÀÆgÀPª À ÁV ¢£ÁAPÀ 06.01.92gÀ PÀA æ iÀÄ¥Àvz Àæ À JgÀqÀÄ eÉgÁPïì £ÀP® À ÄUÀ¼ÀÄ, ªÀÄÄmÉÃµÀ£ï JPïìmÁÖçPÀÖ£À £ÀP® À Ä, ¸Àªð É »¸Áì £ÀP® À Ä, CmÁè¸£ À À £ÀP® À Ä, N.J¸ï.50/04gÀ ªÁzÀ¥v À z Àæ À £ÀP® À Ä, N.J¸ï.50/04gÀ gÁfÃ¥Àvz Àæ À £ÀP® À Ä, NJ¸ï.50/04 DqÀðgï²Ãmï£À £ÀPÀ®Ä, ¢£ÁAPÀ 17.08.04gÀ JgÀqÀÄ PÀA æ iÀÄ¥Àvz Àæ À £ÀP® À ÄUÀ¼ÀÄ, JA.J.100/05gÀ wÃ¦ð£À £ÀPÀ®Ä, ¢£ÁAPÀ 04.09.06gÀ JgÀqÀÄ j°Ãeï rÃqï£À £ÀP® À ÄUÀ¼ÀÄ, ¢£ÁAPÀ 05.02.11 ªÀÄvÀÄÛ 08.02.2011gÀ PÀA æ iÀÄ¥ÀvU Àæ ¼ À ÀÄ, ªÀÄÆgÀÄ zÁªÁ ¸ÀéwÛ£À PÀ®gï ¥ÉÆÃmÉÆÃUÀ¼ÀÄ, LzÀÄ Dgïn¹ JPïìmÁÖçPÀÖ÷UÀ¼ÀÄ ºÁdgÀÄ¥Àr¹gÀÄvÁÛg.É At paragraph 15 it is observed as under:

15. G¨sA À iÀÄ ¥ÀPÀëUÁgÀgÀÄ ºÁdgÀÄ¥Àr¹gÀÄªÀAvÀºÀ J¯Áè zÁR¯ÉU¼ À £ À ÀÄß ¸ÀÆPÀëöäªÁV ¥ÀjÃ²Ã°¹ £ÉÆÃqÀ¯ÁV M¦àzA À vÉ DAxÉÆÃtÂAiÀÄ¥Àà ºÁUÀÆ CªÀgÀ ªÀÄPÀÌ¼ÀÄ PÁ¼ÉÃ£À CUÀº æ ÁgÀ UÁæªÀÄzÀ ¸Àªð É £ÀA.33/1 ªÀÄvÀÄ 33/5 ¸ÀévÀÄU Û ¼ À À ªÀiÁ°ÃPÀgÁVzÁÝg.É F §UÀÎÉ G¨sA À iÀÄ ¥ÀPÀëUÁgÀg° À è AiÀiÁªÀÅzÉÃ ©ü£Áß©ü¥ÁæAiÀÄ EgÀÄªÀÅ¢®è. DAvÉÆÃt¥Àà ºÁUÀÆ DvÀ£À 46 ªÀÄPÀÌ¼ÀÄ ¢£ÁAPÀ 06.01.1992 gÀAzÀÄ UËvÀªÀiï ªÀÄvÀÄÛ ªÉAPÀmÃÉ ±ï vÀªÀÄÄ¯ïPÀgª Àæ j À UÉ ¥Àv æ ÉåÃPÀ PÀA æ iÀÄ¥ÀvU Àæ ¼ À À ªÀÄÆ®PÀ ¸Àzj À ¸ÀévÀÄÛU¼ À £ À ÀÄß ªÀiÁgÁl ªÀiÁrzÁÝg.É vÀz£ À A À vÀgÀ ¸Àzj À DAvÉÆÃt¥Àà M§âgÉ ¢£ÁAPÀ 17.08.2004 gÀAzÀÄ gÁªÀÄZÀAzÀæ ºÁUÀÆ ¨sÁUÀå®Qëöägª À g À À ¥ÀgÀªÁV ¸Àªð É £ÀA.33/1 ªÀÄvÀÄÛ 33/5gÀ ¸ÀévÀÄÛU¼ À £ À ÀÄß ªÀiÁgÁl ªÀiÁrzÁÝg.É F «ZÁgÀªÁV ªÁ¢AiÀÄgÀÄ FUÁUÀ¯É £ÁåAiÀiÁ®AiÀÄzÀ ªÀÄÄAzÉ M.J¸ï.1210/04, 1212/04 ºÁUÀÆ 1214/04 gÀAvÉ zÁªÉAiÀÄ£ÀÄß ¸À°è¹zÀÄÝ DAvÉÆÃt¥Àà ºÁUÀÆ ±ÁAvÀgÁdÄgÀªg À À «gÀÄzÀÞ ¥Àv æ ÉåÃPÀ zÁªÉU¼ À À£ÀÄß ¸À°è¹zÀÄÝ ¸Àzj À Ã zÁªÉUÀ¼° À è ªÀÄzsÀåAvÀgÀ Cfð-1gÀ ªÉÄÃ¯É G¨sA À iÀÄ ¥ÀPÀëUÁgÀgÀ ªÁzÀªÀ£ÀÄß D°¹zÀ £ÀAvÀgÀ zÁªÉUÀ¼ÀÄ CAwªÀÄªÁV wÃªÀiÁð£À DUÀÄªÀªg À U É É ±Á±ÀévÀ ¤¨sð À AzsPÀ ÁYÉÐUÁV ªÀÄAdÆgÀÄ ªÀiÁrgÀÄvÀÛz.É D ¥ÀPæ ÁgÀ ªÁ¢AiÀÄgÀÄ zÁªÁ µÉqÀÆå¯ï ¸ÀéwÛ£À ¸Áé¢Ãü £Á£ÀÄ¨sª À z À ° À èzÁÝgÉ JA§ÄzÀÄ F ºÀAvÀz° À è ªÉÄÃ¯ÉÆßÃlPÉÌ ¸ÀàµÀÖªÁUÀÄvÀÛz.É ¸Àzj À DzÉÃ±Àª£ À ÀÄß DAvÉÆÃt¥Àà ºÁUÀÆ ±ÁAvÀgÁdÄgÀªg À ÀÄ ¥À± æ Éß ªÀiÁrgÀÄªÀÅ¢®è. ¸Àzj À zÁªÉU¼ À ÀÄ ZÁ°ÛAiÀÄ°ègÀÄªÀ ºÀAvÀz° À è DAvÉÆÃt¥Àà ªÀÄÈvÀ¥ÀnÖzÀÄÝ ¸Àzj À zÁªÉUÀ¼ÀÄ ±ÁAvÀgÁdÄgÀªg À À «gÀÄzÀÝ £ÀqA É iÀÄÄwÛzÉ »ÃVgÀÄªÁUÀ, gÁªÀÄZÀAzÀæ ªÀÄvÀÄÛ ¨sÁUÀå®Qëöägª À g À ÀÄ RjÃ¢ ªÀiÁrgÀÄªÀ PÀA æ iÀÄ¥ÀvÀæU¼ À À DzÁgÀzÀ ªÉÄÃ¯É ªÁ¢AiÀÄgÀ «gÀÄzsÀÞ MJ¸ï.34/05 gÀAvÉ ¸À°è¹zÀ zÁªÉAiÀÄ°è vÁvÁÌ°PÀ ¤¨sð À AzsPÀ ÁYÉÐAiÀÄ£ÀÄß ªÀÄAdÆgÀÄ ªÀiÁrgÀÄªÀÅ¢®è. ¸Àzj À DzÉÃ±ÀzÀ «gÀÄzÀÞ JA.J.100/05 gÀAvÉ ªÉÄÃ®ä£« À ¸À°è¹zÀÄÝ ¸Àzj À ¥ÀPæ g À t À UÀ¼° À è ªÀiÁ£Àå »jAiÀÄ ¹«¯ï £ÁåAiÀiÁ®AiÀÄªÀÅ G¨sA À iÀÄ ¥ÀPÀëUÁgÀgÀ «gÀÄzÀÞ AiÀÄxÁ¹Üw PÁ¥ÁqÀÄªÀAvÉ DzÉÃ±À 47 ªÀiÁrgÀÄvÀÛz.É ¸Àzj À Ã DzÉÃ±ÀªÀÅ ZÁ°ÛAiÀÄ°ègÀÄªÁUÀ gÁªÀÄZÀAzÀæ FvÀ£ÀÄ zÁªÁ D¹ÛAiÀÄ£ÀÄß ¢£ÁAPÀ 05.02.2011gÀAzÀÄ ¥Àw æ ªÁ¢UÉ ªÀiÁgÁl ªÀiÁrzÁÝg.É vÀz£ À A À vÀgÀ ¥Àw æ ªÁ¢AiÀÄÄ ªÁ¢AiÀÄgÀ zÁªÁ D¹ÛAiÀÄ ¸Áé¢Ãü £Á£ÀÄ¨sª À PÀ ÉÌ CrØ¥r À ¹zÀ PÁgÀt F zÁªÉAiÀÄ£ÀÄß ¸À°è¹gÀÄªÀÅzÀÄ ¸ÀàµÀÖªÁV PÀAqÀÄ §gÀÄvÀÛz.É G¨sA À iÀÄ ¥ÀPÀëUÁgÀgÀÄ ºÁdgÀÄ¥Àr¹gÀÄªÀAvÀºÀ J¯Áè zÁR¯ÉU½ À AzÀ zÁªÁ D¹ÛAiÀÄ PÀÄjvÀÄ G¨sA À iÀÄ ¥ÀPÀëUÁgÀgÀ £ÀqÀÄªÉ ªÀiÁ°ÃPÀvÀézÀ ºÀQÌ£À PÀÄjvÀÄ UÀA©üÃgÀªÁV vÀPg À ÁgÀÄ GzÀã«¹gÀÄvÀÛz.É

38. The learned Senior Counsel further contended that the earlier suits filed by the plaintiffs in O.S.No.1210/2004, 1212/2004 and 1214/2004 wherein the Trial Court has granted temporary injunction against Anthoniyappa and in favour of the plaintiffs has reached finality.

39. The learned Senior Counsel also invited attention of the Court to the finding recorded by the Lower Appellate Court in its judgment which is impugned in the present writ petition wherein while concurring with the order passed by the trial Court 48 granting injunction, has recorded that "even though as per advocate for appellant, respondents have no right over the property purchased by the appellant, but it has to be decided only after completing trial." But on perusal of the order of the Court below there is dispute regarding property of Ramachandra purchased from Anthoniyappa which was also sold to Gautham and Venkatesh Tamlurkar. Hence there is dispute with regard to title of property of the vendor of the appellant therein and therefore, the Lower Appellate Court dismissed the appeal confirming the order passed by the Trial Court granting temporary injunction. It was further contended that the original suit filed by the Ramachandra and Bhagyalakshmi - vendors of the defendant in O.S.No. 34/2005 for declaration and permanent injunction, the Trial Court has rejected the application for temporary injunction which was confirmed by the Lower Appellate Court holding that the plaintiffs are not in possession of the suit schedule 49 properties and ultimately the suit came to be dismissed for non-prosecution. The suit for declaration of title and permanent injunction filed by the vendors of the defendants has not been decided by the Trial Court. The suits filed by the present plaintiffs in O.S.No.1210/2004, 1212/2004 and 1214/2004 for permanent injunction where the Trial Court granted temporary injunction against the original vendor - Anthoniappa, has reached finality. The said suits for permanent injunction are still pending consideration against defendant No.2/ Shantharaju.

40. The learned Senior Counsel specifically contended that the present petitioner-defendant also has suppressed the fact that he has filed O.S.No. 1017/2016 subsequent to the impugned order passed by the trial Court and confirmed by the Lower Appellate Court for permanent injunction in respect of two properties viz., Sy.No.35/2 measuring 7623 sq.ft. 50 showing Western boundary as Bannerghatta Road and another Sy.No.33/5 measuring 11 acres 4 guntas i.e., 1025 sq.ft. showing Western boundary as Bannerghatta road. The said material fact is suppressed by the present petitioner and he has not come to the Court with clean hands. Admittedly, though the suit was filed on 20.08.2016, till today, no interim order is passed by the Trial Court and the matter is now posted for framing of issues.

41. The learned Senior Counsel further contended that both the Courts below have concurrently held that the respondent-plaintiff is in possession and such a finding of fact cannot be interfered with by this Court in exercise of powers under Article 227 of the Constitution of India.

42. The learned Senior Counsel for the respondent while arguing the scope of Article 227 of the Constitution of India in interfering with the concurrent 51 findings of fact recorded by the Courts below has relied upon the dictum of the Hon'ble Supreme Court in the case of Gulshera Khanam vs. Aftab Ahmed reported in (2016)9 SCC 414 and so also in the case of Jai Singh and others vs. Municipal Corporation of Delhi and another reported in (2010)9 SCC 385.

43. The learned Senior Counsel further contended that when there is a dispute with regard to the extent, boundary should prevail. In support of his contention, he invited attention of this Court to the dictum of this Court in the case of Smt. Javaramma, dead by LRs vs. Shivashetty passed in RSA No.2504/2011 dated 05.11.2012 and also in the case of Narasimha Shastry - vs- Mangesha Devaru reported in ILR 1998 Kar. 555 wherein it is held that where the sale deed mentioned the boundaries specifically and clearly to identify the property, the actual extent of the land not being clear, 52 the recitals as to boundaries should prevail and therefore, he sought to dismiss the writ petition.

44. In view of the aforesaid rival contentions urged by the learned Counsel for the parties, the only point that arises for consideration in the present writ petition is:

"Whether the petitioner-defendant has made out a prima facie case to interfere with the concurrent findings of fact recorded by the Courts below while granting temporary injunction in favour of the respondent-plaintiff in the facts and circumstances of the present case?"

45. I have given my anxious consideration to the arguments advanced by the learned Counsel for the parties and perused the available material on record carefully.

46. The material on record clearly depicts that both the plaintiffs' vendors and defendant's vendor are 53 claiming rights in respect of suit schedule properties under the original owner Anthoniyappa. The plaintiffs had filed the present suit for permanent injunction in respect of Schedule A, B and C properties on the basis of different Sale Deeds dated 3.9.2001 and 22.11.2001 through their vendors Sri Venkatesh Tamlurkar and A.B. Gautham, who purchased the suit schedule properties from the original owner - Anthoniyappa and his children under a separate registered Sale Deeds dated 6.1.1992 and they are in possession and enjoyment of the suit schedule properties and therefore, they have filed the suit.

47. The defendant filed written statement denying the plaint averments and contended that he purchased the suit schedule properties under the Sale Deed dated 8.2.2011 executed by his vendor Sri P. Ramachandra, who purchased the property from the original owner - Anthoniyappa under two separate Sale Deeds dated 54 17.8.2004 executed in favour of P. Ramachandra and Smt. N. Bhagyalakshmi and that he is in possession and enjoyment of the same.

48. The records also reveal that the original owner Anthoniyappa filed O.S.No.546/1990 against one Chowrappa and others for declaration of title and permanent injunction in respect of land bearing Sy. No. 33/1 measuring 37 guntas of Kalenaagrahara Village, Begur Hobli, Bangalore South Taluk is bounded by: East by : Sy.No.33/2

West by : Sy.No.35 belong to the plaintiff North by : Rajakaluve and Camphor Factory South by : Property of Narayanappa and ultimately the said suit ended in a compromise between the parties on 18.7.1990 under Order 23 Rule 3 of the Code of Civil Procedure. According to the said compromise, 'A' Schedule property under compromise had fallen to the share of the plaintiff - Anthoniyappa 55 i.e., property bearing Sy.No.33/1 measuring 33 guntas situated at Kalenaagrahara Village, Begur Hobli, Bangalore South Taluk bounded by:

East by : Property bearing Sy.No.33/2 belonging to the first defendant Chowrappa West by : Property bearing Sy.No.35 belonging To plaintiff North by : Rajakaluve and Camphor Factory South by : B-Schedule shown as B, E, F, C in the rough sketch given to the share of first defendant.

49. The material on record also reveal that the said Anthoniyappa and his children executed a registered Sale Deed dated 6.1.1992 in favour of Sri Venkatesh Tamlurkar in respect of a site with shed measuring East to West 100 feet, North to South 87 feet which is a portion of Khatha No. 1/33A, 1/33B and 1/33C Hulimavu village Panchayath, situated at Kalenaagrahara Village, Begur Hobli, Bangalore South Taluk bounded by:

     East by        : Chowrappa's property
     West by        : Bannerghatta Road
     North by       : Property sold to A.B. Goutham
     South by       : Property sold to Lakshamma by the
                     Vendors

Together with One Square Mangalore Tiled Roofing House constructed in the year 1970, doors and windows are made out of jungle wood, etc.

50. The said original owner Anthoniyappa and his children also executed another Sale Deed dated 6.1.1992 in favour of Sri A.B. Gautham in respect of property -

SCHEDULE Site with shed measuring East to West 100 Feet, North to South 87 Feet which is a portion of Khatha No. 1/33A, 1/33B and 1/33C of Hulimavu Village, Panchayat situated in Kalenaagrahara Village, Begur Hobli, Bangalore South Taluk bounded by: 57

     East by        : Chowrappa's Property
     West by        : Bannerghatta Road
     North by       : Property sold to S.N. Giakawad and
                       Sonalee N. Giakawad
     South by       : Property sold to Venkatesh Tamlurkar

Together with one Square ACC sheet roofing house, constructed in the year 1970, doors and windows are made out of jungle wood, etc.

51. The said A.B. Gautham and Venkatesh Tamlurkar have executed three different Sale Deeds on 3.9.2001 and 22.11.2001 in favour of the plaintiffs and present respondent and their father and mother which read as under:

(i) Sale Deed dated 3.9.2001 executed by A.B. Goutham in favour of Sri P. Palaniswamy SCHEDULE House on Site Old No.1/33A, 1/33B, and 1/33C in Khatha No.18, New House List No.18, property No.1/33B situate at Kalenaagrahara 58 Village, Basavanapura Panchayat, Begur Hobli, Bangalore South Taluk totally measuring East to West 100 Feet and North to South 43.5 Feet in all measuring 4350 sq. ft. and is bounded by:

East by       : Property belonging to
              Chowrappa

West by       : Road,
North by      :Property belong to
               Mr.S.N. Gaikwad
              and Sonali N. Gaikwad
South by      : Remaining portion of the same
               Property purchased by
               Smt. Kaliammal

With One Square A.C. Sheet roof construction with mud flooring, jungle wood doors and windows, etc.

ii) Sale Deed dated 3.9.2001 executed by Sri A.B. Goutham in favour of Smt. Kaliammal SCHEDULE House on Site Old No.1/33A, 1/33B, and 1/33C in Khatha No.18, New House List No.18, property No.1/33B situated at Kalenaagrahara Village, Basavanapura Panchayat, Begur Hobli, Bangalore South Taluk totally measuring East to 59 West 100 Feet and North to South 43.5 Feet in all measuring 4350 sq. ft. and is bounded by:

East by       : Property belonging to
                Chowrappa

West by       : Road,
North by      : Remaining portion of the
                same property belonging
      `         to P. Palaniswamy

South by      : Property belong to
                Mr. Venkatesh
               Tamlurkar.

The property consisting of One Square A.C.Sheet roof construction with mud flooring, jungle wood doors and windows, etc.

(iii) The Sale Deed dated 22.11.2001 executed by Sri Venkatesh Tamlurkar in favour of Sri P. Muthuswamy SCHEDULE House on Site Old No.1/33A, 1/33B, and 1/33C in Khatha No.18, New House List No.18, property No.1/33C situated at Kalenaagrahara Village, Basavanapura Panchayat, Begur Hobli, Bangalore South Taluk totally measuring East to West 100 Feet and North to South 87 Feet in all measuring 8700 sq. ft. and is bounded by:

East by :Property belonging to Chowrappa West by :Road, North by :Property belong to P.Palaniswamy And Kaliammal South by :Property belonging to Smt. Lakshmamma The property consisting of One Square A.C.Sheet Roof construction with mud flooring, jungle wood doors and windows, etc. This is how the plaintiffs trace their title in respect of the suit schedule properties.

52. It is also not in dispute that the very original owner Anthoniyappa executed Sale Deed dated 17.8.2004 in favour of P. Ramachandra and Bhagyalakshmi SCHEDULE Agricultural dry land bearing Sy.No.33/1 measuring 19 guntas of Kalenaagrahara Village, Begur Hobli, Bangalore South Taluk bounded by:

            East by      : Sy.No.33/2 (Kalena
                          Agrahara Village)
            West by      : Sy.No.35 of Kalena-
                          agrahara Village,
                          Bannerghatta Main Road
            North by     : Remaining portion of
                          Sy.No.33/1

            South by     :Sy.No.34 of Kalena-
                         agrahara Village

The records also reveal that the second purchaser N. Bhagyalakshmi executed a Release Deed in favour of first purchaser Sri P. Ramachandra on 4.9.2006 releasing half share purchased in Sy.No.35/1 measuring 19 guntas.

53. It is also not in dispute that on the very same day i.e., on 17.8.2004, the original owner Anthoniyappa executed another Sale Deed in favour of P. Ramachandra and Smt. N. Bhagyalakshmi in respect of agricultural land bearing Sy.No.35 measuring 7 guntas of Kalenaagrahara Village, Begur Hobli, Bangalore South Taluk, bounded by:

East by : Sy.No.33/1 (Kalenaagrahara Village) West by : Bannerghatta Main Road, North by : Remaining portion of Sy.No.35 and 32 of Kalenaagrahara Village South by : Sy.No.34 of Kalenaagrahara Village The records also reveal that the said Bhagyalakshmi also executed another Release Deed dated 4.9.2006 in favour of P. Ramachandra releasing half share purchased in Sy.No.35 measuring 7 guntas.

54. It is also depicted from the records that P. Ramachandra - the vendor of the defendant-petitioner has obtained Conversion Order in respect of Sy.No. 33/5 measuring o.11.04 guntas of Kalenaagrahara Village, Begur Hobli, Bangalore South Taluk on 3.8.2009 by the Deputy Commissioner, which reads as under:

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The property bearing Sy.No.33/5 measuring 0-11.04 guntas of land was converted into non-agricultural purpose bounded by East by : land bearing Re-Sy.No.33/2 West by : Banneghatta road North by : land bearing Sy.No.33/1 South by : remaining portion of land bearing Sy.No.33/5

55. The material on record depicts that the said P. Ramachandra executed a registered Sale Deed dated 8.2.2011 in favour of the present petitioner-defendant - M/s. Enterprises Software Solutions (P) Ltd represented by its Partner Abbas Ali Bhora SCHEDULE Property measuring 7623 sq.ft comprising in Sy.No.35/2 of Kalenaagrahara Village, Begur Hobli, Bangalore South Taluk bounded by East by : Property bearing Sy.No.33/1 West by : Banneghatta Main Road 71 North by : Remaining portion of property Bearing Sy.Nos.35 and 32 South by : Remaining portion of Sy.No.34

56. It is also relevant to state at this stage that the very Ramachandra also executed another Sale Deed dated 5.2.2011 in favour of very defendant-present petitioner - M/s. Enterprises Software Solutions (P) Ltd represented by its Partner Abbas Ali Bhora in respect of SCHEDULE Converted land bifurcated in Sy.No.33/5 measuring 0-11.04 guntas vide Official Memorandum No. ALN(SB)SR:56/09-10 Dated 3.8.2010 situated at Kalena-

agrahara Village, Begur Hobli, Bangalore South Taluk presently coming under the revenue jurisdiction of BBMP, Bangalore BBMP No. 108/33/1, situated at Kalenahaagrahara, Bangalore, measuring 11.04 guntas or 12022 sq.ft. i.e., East to West : 70' feet North to South : 172' feet 72 And bounded (as per the Conversion Orders) as follows:

East by : land belongs to Re-Sy.No.33/2 West by : Banneghatta Main Road North by : land belongs to Sy.No.33/1 South by : Remaining land of Sy.No.33/5 This is how the defendant is claiming his source to the properties in question.

57. The material documents which are also produced by the plaintiffs clearly indicate that for the year 2002-03, the demand register issued by Basavanapura Grama Panchayat clearly depict that at Sr.No.18, property is Sy.No.1/33B, owner column -

Kaliamma, tax paid and cess- Rs. 372/-. House/Land Tax Assessment List for the year 2002-03, the property is shown as 1/33B, owner column - Kaliamma, property measurement 100 x 43.5 with boundaries. Tax Assessment for the year 2004-05 shows property 73 No.1/33B, property: House, owner column Kaliamma, property measurement 100 x 43.5 sq.ft. The Register demanding tax for the year 2002-03 issued by Basavanapura Grama Panchayath clearly depicts that at Sl.No.18, property is 1/33C, owner column Muttuswamy s/o Palaniswamy, tax and cess paid Rs.372/-. House/land tax assessment for the year 2004-05 by the Basavanapura Grama Panchayath is in respect of property No.1/33C owner column P. Muttuswamy s/o P. Palaniswamy measurement 87 x 100 sq.ft. Demand Register for paying Tax for the year 2002-03 at Sl.No.18 depict that property bearing Sy.No.1/33B is in the name of P. Palaniswamy s/o Palaniswamy, tax and cess paid Rs.372/-. House/Land Tax Assessment for the year 2004-05 depicts property bearing Sy.No.1/33C, property- House, owner column - Palaniswamy measurement- 100 x 43.5 sq. ft. 74

58. The records also reveal that the plaintiffs have paid tax for the assessment year 2011-12 in respect of property - 666-1/33C showing the name of Muttuswamy, Palaniswamy and Kaliamma in respect of property bearing Sy.Nos.1/33B, 1/33C. The records further reveal that the plaintiffs have paid tax for the assessment year 2012-13 in respect of property bearing Sy.No.33C by Sri P. Muttuswamy; Sy.No.33/B by Kaliamma; Sy.No.33/C by Sri Palaniswamy issued by Bruhat Bangalore Mahanagara Palike on 28.8.2012.

59. The list of documents produced by the defendant-present petitioner on 28.6.2017 are:

i) Khatha Certificate dated 20.7.2016 showing the property bearing Sy.No.108/Sy.No.33/5 in the name of the defendant-petitioner;

ii) The register of houses and vacant sites maintained by BBMP for the year 2016 to 2017 in respect of Sl.No.108/Sy.Nos.33/1, 33/5 75 showing the name of Ramachandra is rounded off and the name of defendant is shown;

iii) Form - B - Property Register maintained by BBMP shows at Sl.No.717 property Sy.No.35/2 wherein Ramachandra's name is rounded off and the name of M/s. Enterprises Software Solutions Pvt. Ltd. is entered;

iv) The Tax paid receipts for the assessment years 2010-11, 2011-12, 2012-13, 2013-14, 2014-15, 2015-16 and 2016-17 in respect of property bearing Sl.No.108/Sy.No.33/5 of Kalena-

agrahara, Bannerghatta Main Road, Bangalore showing the owner's column as M/s.

Enterprises Software Solutions Lab represented by Abbas Ali Bohra.

60. The sale deeds relied upon by the plaintiffs and defendants clearly depicts that the original owner Anthoniyappa sold sites with a shed to Venkatesh Tamlurkar and A.B.Gautham under two different registered sale deed dated 06.01.1992 measuring East to West 100 feet and South to North 87 feet which is a 76 portion of katha No.1/33A, 1/33B and 1/33C and in turn the plaintiffs have purchased the properties from their vendors under three different sale deeds dated 03.09.2001, 03.09.2001 and 22.01.2001 in respect of house on site old No.1/33A, 1/33B and 1/33C in katha No.18 new house list No.18, property Nos.1/33B, 1/33B, 1/33C and the material documents produced by the plaintiff clearly indicates that they have paid tax to the jurisdictional Grama Panchayath and Bengaluru Mahanagara Palike up to the year 2012-13 from the date of purchase to show that they are in possession.

61. The documents relied upon by the defendants through their vendors clearly depicts that the original owner Anthoniyappa executed two registered sale deeds on 17.08.2004 in favour of the vendor of the present defendant in respect of Sy.No.33/1 measuring 19 guntas and Sy.No.35 measuring 7 guntas. It is also relevant to state at this stage that P.Ramachandra obtained conversion order 77 from the jurisdictional Deputy Commissioner on 03.08.2010 in respect of Sy.No.33/5 measuring 0.11.4 guntas into non agricultural purpose. The records reveal that the vendors of the present defendant purchased Sy.No.33/1 measuring 19 guntas and Sy.No.35 measuring 7 guntas of Kalenaagrahara village. The said P.Ramachandra executed two sale deeds dated 08.02.2011 and 05.02.2011 in favour of the present petitioner defendant in respect of property measuring 7623 sq.ft. in katha No.35/2 situated at Kalenaagrahara village and converted land bifurcated into Sy.No.33/5 measuring 0.11.04 guntas or 12022 sq.ft. with specific boundaries and survey numbers. The documents produced by the defendant, katha certificate, property register and assessment register clearly indicates that survey number and property number and not sites. The property purchased by the vendor of the defendant from erstwhile owner Anthoniyappa was having survey number and not 78 property numbers. The boundaries mentioned in the documents of vendors of the defendant and in the sale deed executed in favour of the defendant does not tally. Therefore, prima-facie, the plaintiffs have purchased house site properties and defendants purchased survey number/property number and not house sites.

62. The present plaintiffs filed separate suits in O.S.No.1210/2004, 1212/2004 and 1214/2004 for permanent injunction, against the original owner Anthoniyappa and one Shantharaju in respect of house on site old No.1/33A, 1/33B and 1/33C in katha No.18, new house list No.18, property Nos.1/33B, 1/33B and 1/33C situated at Kalenaagrahara village, Basavapura Panchayath, Begur Hobli, Bengaluru South Taluk, which reads as follows:

(i) O.S.No.1210/2004

P.Palaniswamy vs. Sri A. Anthoniyappa & another.

                             79

                            SCHEDULE


               All   that    piece   and    parcel   of

property bearing house on site old No.1/33A, 1/33B and 1/33C in katha No.18, new house list No.18, property No.1/33B situate at Kalenaagrahara village, Basavanapura Panchayat, Begur Hobli, Bangalore South Taluk, totally measuring East to West 100 feet and North to South 43.5 feet in all measuring 4350 sq.feet and bounded on the:

         East by     : Property belonging to
                       Chowrappa,

         West by     : Road,
         North by    : Property belonging to
                       S.N.Gaikwad and Sonali
                       N. Gaikwad and

         South by    : Remaining portion of the
                       same belong to
                       Kaliammal.

    (ii) O.S.No.1212/2004

     P.Muthuswamy     vs.     Sri    A.   Anthoniyappa    &
another.
                         80

                    SCHEDULE

           All   that    piece   and    parcel   of

property bearing house on site old No.1/33A, 1/33B and 1/33C in katha No.18, new house list No.18, property No.1/33C situate at Kalenaagrahara village, Basavanapura Panchayat, Begur Hobli, Bangalore South Taluk, totally measuring East to West 100 feet and North to South 87 feet in all measuring 8700 sq.feet and bounded on the:

     East by     : Property belonging to
                   Chowrappa,

     West by     : Road,
     North by    : Property belonging to
                   P.Palaniswamy and Kaliammal
                    and

     South by    : remaining portion of the same
                   belong to Lakshmamma.

(iii) O.S.No.1214/2004

Muthuswamy vs. Sri A. Anthoniyappa & another.

SCHEDULE 81 All that piece and parcel of property bearing house on site old No.1/33A, 1/33B and 1/33C in katha No.18, new house list No.18, property No.1/33B situate at Kalenaagrahara village, Basavanapura Panchayat, Begur Hobli, Bangalore South Taluk, totally measuring East to West 100 feet and North to South 43.5 feet in all measuring 4350 sq.feet and bounded on the:

           East by     : Property belonging to
                         Chowrappa,

           West by     : Road,

           North by    : Remaining portion of the same
                         property belonging to
                         P.Palaniswamy and

           South by    : Property belonging to Venkatesh
                         Tamlurkar.

contending that the plaintiffs are in possession and enjoyment of the suit schedule properties morefully stated in the schedule of the respective suits and also filed I.A.No.1 for temporary injunction reiterating the 82 plaint averments. The defendants filed objections to the said application.

63. The Trial Court, considering the application and objections, recorded a finding that, the defendants produced copy of the order passed on I.A.No.1 in O.S.No.463/2003. The said suit is in respect of property No.35 measuring to an extent of 14 guntas. In the said suit while disposing the interlocutory application the Hon'ble Court clearly held that the property claimed by the plaintiff and property claimed by the defendant are entirely different properties. Admittedly, the defendants have stated that the suit schedule properties belonging to plaintiff are different from property bearing Nos.33/1, 33/2, 33/3 and 35 of Kalenaagrahara. In this suit, the plaintiff is claiming right over property bearing old Nos.1/33A, 1/33B and 1/33C in katha No.18 new house list No.18, property bearing No.1/33B of Kalenaagrahara village and hence, 83 the plaintiff has made out a case for temporary injunction. Accordingly, by an order dated 12.01.2005, the Trial Court granted injunction in favour of the present respondent, who is the plaintiff in the said suit and the application filed under Order XXXIX Rule 4 of Code of Civil Procedure by the vendor's vendor of the defendant came to be dismissed. The said order passed by the Trial Court in the said suit granting temporary injunction in favour of the plaintiffs/respondent has reached finality and the said suits filed for permanent injunction are still pending for consideration.

64. It is also relevant to state at this stage that P.Ramanchandra, the vendor of the present defendant and one Bhagyalakshmi filed O.S.No.34/2005 against the present respondents/plaintiffs for declaration of title and for permanent injunction in respect of the suit schedule properties mentioned therein i.e., item No.1:

Sy.No.35 measuring 7 guntas; and Item No.2:

Sy.No.33/1 measuring 19 guntas and both situated at Kalenaagrahara village, Begur Hobli, Bengaluru South Taluk with specific boundaries. The present plaintiff, who was the defendant in the said suit filed a detailed written statement and at paragraph-16 he has specifically stated as under:

16. It is submitted that the properties purchased by these Defendants is the part of Sy.No.33/1, as well as Sy.No.35, of Kalenaagrahara Village.

Sy. No.33/1 was measuring about 37

guntas and Sy No.35, was measuring about 14 guntas. The extent covered under Sy.No.33/1, was acquired by Sri Anthoniyappa by way of compromise decree and the extent of 14 guntas compromised in Sy.No.35, was acquired by Sri Anthoniyappa under Registered Sale deed dated 30.11.1983, in Document No.6086/83-84. Both the properties are adjacent to one another and a draft sketch is enclosed herewith 85 which reflecting location of properties purchased by these Defendants and others. Total area acquired by Sri Anthoniyappa was about 53361 sq.ft. which was covered in Sy.No.33/1, of 35 guntas and 1 gunta equals 1089 sq. ft and the total area acquired under Sy.No.33/1, was 38115 sq.ft. Similarly, the area acquired in sy.No.35, was 14 guntas and which comes about 15,246 sq ft. out of these extent said Sri Anthoniyappa has alienated the properties to the various persons including these Defendants and total area alienated by Sri Anthoniyappa was 51,079 sq ft. Some of the area covered in these Survey Numbers was used for the Road towards the Northern side. And all these alienations taken place between 29/6/1989 to 17/2/1997. (the said Sri Anthoniyappa sold an extent of 4900.05 sq.ft. in favour of Smt. Jayanthi under registered Sale Deed dated 17.2.1997.

By a Registered Sale Deed dated 86 29.6.1989, the said Sri Anthoniyappa has sold an extent of 6,500 sq. ft. in favour of one Sri Sebastian under a Registered Sale Deed. By another Registered Sale Deed dated 8/1/1992, an extent of 8,700 sq.ft. was sold in favour of Sri Narasingaraj Gaikwad, in Document No.4460/91-92, which measuring about 8,700 sq.ft. By one more sale deed dated 18/1/1991, said Sri Anthonyappa sold an area of 8,700 sq. ft. in favour of one Sri Goutham and similar extent of area was sold in favour of one Sri Venkatesh Tamlurkar by a Registered Sale Deed dated 18/1/1991) An area measuring about 11 guntas was also sold in favour of one Smt. Lakshmamma by Sri Anthonyappa. Therefore, except these extent there are no other land which belonged to said Sri Anthonyappa and what has been sold in favour of the Plaintiffs as alleged in the plaint is the land which are no more in existence at all in the name of Sri Anthonyappa.

Therefore, whatever the right and title acquired by the Plaintiff as alleged in the plaint are in respect of the properties which have already sold by their vendor in favour of various persons therefore, there are absolutely no properties remained with said Sri Anthonyappa to alienate in favour of the plaintiffs. Therefore, the Plaintiffs neither acquired any valid title on the basis of those alleged sale deeds, much less nor gained any interest on the suit schedule properties. When that being the situation the possession as well as the title claiming by the Plaintiffs have no basis at all. In view of these facts, the suit instituted by the Plaintiffs are fictitious, frivolous and vexatious one.

65. The Trial Court, considering the application for temporary injunction recorded a finding at paragraph 11 that, "on perusal of two registered sale deeds 17.08.2004 produced by the plaintiffs, the plaintiffs jointly purchased property measuring 0.07 88 guntas in Sy.No.35 and 19 guntas in Sy.No.33/1 respectively of Kalenaagrahara village. The plaintiff purchased the suit schedule properties from Anthoniyappa and his family on 17.02.2004 under registered sale deed dated 17.08.2004. Subsequently, the revenue entries are mutated in the name of the plaintiff whereas the defendant stated they purchased the property wherein katha No.1/33A, 1/33B and 1/33C in the year 2001. Their vendors purchased property from Anthoniyappa. Anthoniyappa sold the suit property to the plaintiffs. It is the claim of the defendants that the property which they are claiming is part of Sy.No.33/1 as well as 35 of Kalenaagrahara village. The contention raised by the defendants that Anthoniyappa obtained property bearing Sy.No.33/1 measuring 37 guntas in compromise decree and he acquired Sy.No.35 measuring 14 guntas under

registered sale deed. The vendor of the plaintiff already sold the entire extent of land to different persons and all 89 these alienations took place before 29.06.1989 to 17.03.1997. To prove that the defendants have purchased the property in katha No.1/33A, 1/33B and 1/33C. The defendants produced copy of the registered sale deeds dated 03.09.2001 and 22.11.2001 in connection with the above transaction made by the plaintiff's vendor. The property bearing Syf.No.133/B measuring 4350 sq.ft sold to the second defendant and property bearing 133/C measuring 8700 sq.ft. is sold to the first defendant under a registered sale deed" and ultimately, the Trial Court recorded a finding that the plaintiffs Ramachandra and Bhagyalakshmi, vendors of the defendants failed to prove prima-facie case in respect of Sy.No.35 measuring 7 guntas and Sy.No.33/1 measuirng 19 guntas respectively and accordingly, dismissed the application for temporary injunction.

66. Against the said order, the vendors of the defendant filed Appeal in M.A.No.100/2005 and the 90 Appellate Court while confirming the order passed by the Trial Court, recorded a finding that the plaintiffs are claiming Sy.No.35 in the suit and the sale deeds in favour of the vendors of defendants do not mention about Sy.No.35. Whether the sale deeds in favour of the vendors of the defendant by name Anthoniyappa conveys portion of Sy.No.35 also or not has to be decided only after trial. Any how, at this stage of the case, there are registered sale deeds executed by Anthoniyappa in favour of the vendors of the defendants by describing the western boundary of the property as road and those sale deeds are much earlier to the sale deeds in favour of the plaintiffs. Thus the sale deeds in favour of the vendors of the defendants are much earlier to the sale deeds in favour of plaintiffs and it is also not in dispute that at that time Sy.No.35 also belonged to the vendor of the defendants and ultimately by the order dated 19.08.2006 disposed of the appeal and directed both the parties not to damage the structures existing 91 in the suit properties and not to put up any new structures or construction in the suit properties pending disposal of the suit and confirmed the order of the Trial Court regarding the remaining relief sought for by the plaintiffs on I.A.No.1.

67. It is also stated at the Bar that the very suit filed by the vendors of the defendant i.e., P.Ramachandra and another came to be dismissed for non-prosecution which clearly indicates that the vendors of the defendant had filed a suit for declaration of title and the Trial Court rejected the injunction. The Appellate Court directed the parties to maintain status quo till disposal of the suit. Ultimately, suit came to be dismissed for non-prosecution. Therefore, vendors of the defendant have failed to establish their title and permanent injunction in respect of the properties claimed by the defendant.

68. The material documents produced by both the parties clearly indicate that the present defendant also filed another suit on 20.08.2016 in O.S.No.1070/2016 for permanent injunction in respect of two items viz., Item No.1 Property measuring 7623 sq.ft. in katha No.35/2 situated at Kalenaagrahara, Begur Hobli, Bengaluru South Taluk, Bengaluru, coming under the revenue jurisdiction of BBMP bounded on the:

East by : Property No.33/1

(Kalenaagrahara village), West by : Bannerghatta Main Road, North by : Remaining portion of property Nos.35 and 32 of Kalenaagrahara village South by : Remaining portion of property No.34 (Kalenaagrahara village) 93 Item No.2 Commercially converted land of bifurcated bearing Sy.No.33/5 measuring 0-11.04 guntas or 12022 sq.ft. situated at Kalenaagrahara, Begur Hobli, Bengaluru South Taluk, Bengaluru, coming under the revenue jurisdiction of BBMP, bounded on the, East by : land in Re Sy.No.33/2, West by : Bannerghatta Main Road, North by : land in Sy.No.33/1 and South by : Land in Sy.No.33/5.

69. The learned Counsel for the defendant/appellant contended that the plaintiffs 1 to 3 claims 'A', 'B' and 'C' schedule properties respectively, but plaintiffs 2 and 3 died. A Memo was filed reporting the death of plaintiff Nos.2 and 3 and there is no pleadings in the plaint that plaintiff No.1 is in possession of B and C schedule properties after the 94 death of plaintiffs 2 and 3. The Trial Court proceeded to grant temporary injunction presuming that plaintiffs 2 and 3 are alive. The prima-facie pleadings and documents have not been considered by the Trial Court, and the same is affirmed by the Lower Appellate Court. The Appellate Court has not recorded any reasons while confirming the order of the Trial Court except concurring. Therefore, the impugned orders cannot be sustained.

70. The said contention of the learned counsel for the petitioner/defendant cannot be accepted for the simple reason that the advocate for the plaintiff filed a memo on 03.07.2013 as can be seen from the original records at page 611. The Court below passed order on the same day recording that both the Counsel are present and the memo is taken on record. It is not the case of the defendant that he had raised the said point before the Trial Court before consideration of the prayer 95 for temporary injunction and all the parties to the lis including the defendant presumed that the memo filed treating the first plaintiff as the legal representative of plaintiffs 2 and 3 is taken on record on 03.07.2013 and no ground was taken before the Trial Court with regard to abatement of suit against plaintiffs 2 and 3 nor before the Appellate Court nor before this Court, in the present writ petition.

71. Therefore, when the defendant did not object before the Trial Court on the said memo dated 03.07.2013, it was taken on record and parties proceeded further. Now it is not open for the defendant to object the same. When the plaintiff No.1 was treated as legal representative of plaintiffs 2 and 3 and it has come on record, in view of the memo filed stating that plaintiff no.1 is the legal representative of plaintiffs 2 and 3, the contention of the defendant that the suit abates against plaintiffs 2 and 3 does not arise and the 96 same cannot be accepted, in view of the dictum of the Hon'ble Supreme Court in the case of Mahabir Prasad vs. Jage Ram and others reported in 1971(1) SCC 265, at paragraph 7 held as under:

"7. Even on the alternative ground that Mahabir Prasad being one of the heirs of Saroj Devi there can be no abatement merely because no formal application for showing Mahabir Prasad as an heir and legal representative of Saroj Devi was made. Where in a proceeding a party dies and one of the legal representatives is already on the record in another capacity, it is only necessary that he should be described by an appropriate application made in that behalf that he is also on the record, as an heir and legal representative. Even if there are other heirs and legal representatives and no application for impleading them is made within the period of limitation prescribed by the Limitation Act the proceeding will not abate. On that ground also the order 97 passed by the High Court cannot be, sustained."

72. So also, in the case of Mohammad Arif vs. Allah Rabbul Alamin and others reported in (1982)2 SCC 455 at paragraph 2 held as under:

"2. After hearing counsel on either side we are satisfied that the High Court's order stating that the appeal had abated and the appellant Mohammad Arif could not be brought on record as a legal representative of Mohammad Ahmad is clearly wrong. It is true that the appellant did not prefer any appeal to the District Court against the original decree but in the First Appeal he was a party respondent. But that apart, in the second appeal itself Mohammad Arif had joined as co-

appellant along with his vendor, Mohammad Ahmed. On the death of Mohammad Ahmad all that was required to be done was that the appellant who was on record should 98 have been shown as a legal representative inasmuch as he was the transferee of the property in question and at least as an inter-meddler was entitled to be treated as legal representative of Mohammad Ahmed. He being on record the estate of the deceased appellant qua the property in question was represented and there was no necessity for application for bringing the legal representatives of the deceased appellant on record. The appeal in the circumstances could not be regarded as having abated and Mohammad Arif was entitled to prosecute the appeal. We, therefore, set aside the order of the High Court and send the appeal back to the High Court for disposal according to law."

73. It is also relevant to state at this stage that the very defendant who was the appellant before lower appellate court in M.A.No.33/ 2016 impleaded plaintiffs 2 and 3. It is stated in the appeal memo that 99 respondents 2 and 3 are not dead and proceeded with the appeal and ultimately the appeal came to be dismissed on merits. Now it is not open for the defendant to contend that the suit against plaintiffs 2 and 3 abated. On that ground also the contention of the learned counsel for the appellant/defendant that suit abates against plaintiffs 2 and 3 cannot be accepted.

74. The contention of the learned counsel for the appellant for grant of temporary injunction that no averments are made in regard to continuous possession of the suit schedule properties as on the date of the action till grant of temporary injunction cannot be accepted for the simple reason that the plaintiffs have specifically stated that they are in possession and enjoyment of the suit schedule properties and produced copies of the registered sale deeds and revenue documents to show that they are in possession and 100 enjoyment of the suit schedule properties as on the date of the suit. It is also not in dispute that the Trial Court granted temporary injunction on 13.06.2016 and there was no interim order before the lower appellate Court till the appeal came to be dismissed on 16.02.2017. Therefore, the contention of the learned counsel for the appellant cannot be considered at this stage.

75. Though the learned counsel for the parties to the lis, with reference to various sale deeds and various documents elaborately contended with regard to merits and demerits of the suit disputing the survey numbers, boundaries and extent, this Court is desists to proceed with the merits of the suit since it is not the scope of Article 227 of the Constitution of India while considering the impugned orders passed by the Trial Court on interlocutory application allowing the application for temporary injunction and confirmed by the lower appellate court. My view is fortified by the 101 dictum of the Hon'ble Supreme Court in the case of Anand Prasad Agarwalla -vs- Tarekeshwar Prasad and Others reported in AIR 2001 SC 2367 wherein it has been held at para-6 that it may not be appropriate for any Court to hold mini trial at the stage of grant of temporary injunction which reads as under:

"It may not be appropriate for any Court to hold mini trial at the stage of grant of temporary injunction. As noticed by the Division Bench that there are two documents which indicated that there was prima facie case to be investigated. Unless the sale certificate is set aside or declared to be a nullity, the same has legal validity and force. It cannot be said that no right could be derived from such certificate. Secondly, when the contesting respondents were in possession as evidenced by the record of rights, it can not be said that such possession is by a trespasser. The claim of the contesting respondents is in 102 their own right. The decisions referred to by the learned counsel for the appellant are in the context of there being no dispute as to ownership of the land and the possession was admittedly with a stranger and hence temporary injunction is not permissible. Therefore, we are of the view that the Division Bench has very correctly appreciated the matter and come to the conclusion in favour of the respondents. In these circumstances, we dismiss these appeals. We may notice that the time bound directions issued by the Division Bench will have to be adhered to strictly by the parties concerned and the suits should be disposed of at an early date but not later than six months from the date of the communication of this order."

76. This court has to find out only prima-facie possession of the plaintiffs in respect of suit schedule properties and morefully described in the plaint as on 103 the date of the suit and admittedly the defendant filed written statement, denied the plaint averments and has not filed any counter claim as contemplated under Order VIII Rule 6A of Code of Civil Procedure.

77. Learned counsel for the petitioner contended that when there is a dispute with regard to the boundaries and a doubtful case, injunction cannot be granted, in view of the dictum of this Court in the case of Lakshminarasimhiah and others vs. Yalakki Gowda reported in AIR 1965 KANT 310.

78. There is no quarrel with regard to the principle of law laid down by this Court with regard to granting temporary injunction in a doubtful case. But the fact remains that the very vendor of the defendant filed O.S.No.34/2005 for declaration of title and permanent injunction in respect of Sy.No.35 measuring 7 guntas and Sy.No.33/1 measuirng 19 guntas of Kalenaagrahara village and after contest the Trial Court 104 by order dated 29.03.2005 dismissed the injunction sought for and subsequently the very suit came to be dismissed for non prosecution. The defendant has purchased the suit properties as alleged under registered sale deeds dated 05.02.2011 and 08.02.2011 after dismissal of the suit filed by his vendor, when vendor failed to prove declaration of title and permanent injunction in respect of the properties claimed by the defendant.

79. It is also not in dispute that the present respondent, his father and mother, who are the plaintiffs also filed O.S.Nos.1210/2004, 1212/2004 and 1214/2004 for permanent injunction and the Trial Court, after contest, granted temporary injunction in favour of the plaintiff in respect of the very properties in question on 12.01.2005 against the vendor's vendor of the defendant i.e., Anthoniyappa and Shantharaju and rejected the application filed for vacating the interim 105 order. The said order has reached finality and no appeal was filed. Admittedly, the said suits are still pending for adjudication between the parties. Therefore, the contention of the learned counsel for the petitioner that the injunction cannot be granted in doubtful cases cannot be accepted at this stage.

80. The other two judgments relied upon by the petitioners in C.A.No.9951/2017 dated 04.08.2017 and RSA No.100802/2014 dated 24.08.2015 were passed on merits and not on interlocutory application. The facts of the said cases have no application to the facts and circumstances of the present case.

81. It is not in dispute that the plaintiffs claiming the rights in respect of the suit schedule properties under three registered sale deeds dated 3.9.2001 and 22.11.2001 through their vendors - A.B. Gautham and Venkatesh Tamlurkar who purchased the same from the erstwhile owner - Anthoniyappa and his 106 children under two registered sale deeds dated 6.1.1992, whereas the defendant claiming rights of the properties under the registered sale deeds dated 5.2.2011 and 8.2.2011 through their vendor - Ramachandra who purchased the same under the two registered sale deeds dated 17.8.2004 from the erstwhile owner - Anthoniyappa. Therefore it is clear that the sale deeds relied upon by the plaintiffs are earlier to the sale deeds relied upon by the defendant and it is well settled that earlier sale deeds will prevail.

82. It is also not in dispute that the trial Court granted the order of Temporary Injunction in the present suit i.e. O.S. No.1212/2012 on 13.6.2016. The same was affirmed by the lower appellate Court on 16.2.2017 in M.A. No.33/2016. During the pendency of the appeal, the defendant filed one more suit on 20.8.2016 in O.S. No.1070/2016 against the 1st plaintiff

- Muthuswamy for Permanent Injunction in respect of 107 the property measuring 7,623 square feet in Khatha No.35/2 and the converted land of bifurcated Sy.No.33/5 measuring 11.04 guntas (12,022 square feet) of Kalena Agrahara village. Admittedly the trial Court has not granted Temporary Injunction in favour of the petitioner-defendant in the said suit till today.

83. It is also not in dispute that the defendant has purchased the property measuring 7,623 square feet in Khatha No.35/2 situated at Kalena Agrahara village, morefuly described in the schedule to the sale deed dated 8.2.2011 and the converted land of bifurcated Sy.No.33/5 measuring 11.04 situated at Kalena Agrahara village morefully described in the schedule to the sale deed dated 5.2.2011 from One P. Ramachandra. But, Ramachandra and Bhagyalakshmi purchased the agricultural lands bearing Sy.No.33/1 measuring 19 guntas and Sy.No.35 measuring 7 guntas of Kalenaagrahara village from the erstwhile owner - 108 Anthoniyappa. Therefore it is not forthcoming as to how the defendant purchased the property in Khatha No.35/2 and Sy.No.33/5 of Kalenaagrahara village from Ramachandra. Admittedly Ramachandra, the alleged vendor got the conversion order dated 3.8.2010 from the Deputy Commissioner in respect of 11.04 guntas of land in Sy.No.33/5 of Kalenaagrahara village, which was not the property purchased from Anthoniyappa under the registered sale deeds dated 17.8.2004 stated supra. The sale deeds dated 17.8.2004 disclose that Ramachandra and Bhagyalakshmi purchased agricultural lands measuring 19 guntas in Sy.No.33/1 and 7 guntas in Sy.No.35 of Kalena Agrahara village from Anthoniyappa, but the sale deeds dated 5.2.2011 and 8.2.2011 disclose that the defendant purchased the converted land of bifurcated Sy.No.33/5 measuring 11.04 guntas and the property measuring 7,623 square feet in Khatha No.35/2 of Kalena Agrahara village. The extent of the land and the boundaries in the sale deeds 109 dated 17.8.2004 are not tallying with the extent of land and the boundaries in the sale deeds dated 5.2.2011 and 8.2.2011. Therefore, ultimately it is for the parties to establish their respective rights in respect of their claims after adjudication of both the oral and documentary evidence to be adduced and produced.

84. The trial Court considering the entire material on record, recorded a finding that the plaintiffs have made out a prima facie case and balance of convenience lies in their favour and they will be put to irreparable loss and injury if Temporary Injunction is not granted and accordingly the trial Court allowed the application and granted the order of Temporary Injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the suit schedule properties by the plaintiffs, till the disposal of the suit and recorded a finding of fact, which reads as under:

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85. The Lower Appellate Court on re-

appreciation of the entire material on record, recorded a finding that eventhough the defendant claiming to be 115 purchaser of Khatha No.35/2 of Kalena Agrahara village, but as per the plaintiffs, the vendors of the defendant have no title over the said property. Hence the defendant is not in possession of the said property. The Lower Appellate Court further observed in the judgment that in the suit - O.S. No.34/2005 filed by the vendors of the defendant (Ramachandra & Bhagyalakshmi) for declaration and Permanent Injunction, the trial Court dismissed the application for Temporary Injunction and in the appeal - M.A. No.100/2005 filed against the said order, the lower Appellate Court directed both the parties to maintain status-quo. The Lower Appellate court also recorded a finding that the rights of the parties have to be decided only after trial. There is a dispute regarding the property purchased by Ramachandra and Bhagyalakshmi from Anthoniyappa since it was also sold to Gautham and Venkatesh Tamlurkar. Thus there is a dispute regarding the title of the property of 116 the vendors of the defendant. If that is so, suit for declaration has to be filed. The trial Court only restrained the defendant from interfering with the properties which are in possession of the plaintiffs. Therefore question of setting aside the order of Temporary Injunction granted by the trial Court does not arise. Accordingly, the appellate Court dismissed the appeal confirming the order passed by the trial Court.

86. Both the Courts considering the sale deeds and the material documents relied upon by both the plaintiffs and the defendant as to how title in respect of the suit properties transferred in favour of their vendors from the erstwhile owner - Anthoniyappa recorded a concurrent finding of fact that the plaintiffs have made out a prima facie case for grant of Temporary Injunction. Accordingly, the trial Court granted the order of Temporary Injunction in favour of the plaintiffs and the 117 same was affirmed by the lower appellate Court. The reasons assigned and the conclusion arrived at by the Courts below are just and proper. The petitioner- defendant has not made out any ground to interfere with the concurrent finding of fact arrived at by the Courts below exercising supervisory nature of jurisdiction under Article 227 of the Constitution of India.

87. My view is fortified by the dictum of the Hon'ble Supreme Court in the case of JAI SINGH AND OTHERS .vs. MUNICIPAL CORPORATION OF DELHI AND ANOTHER reported in (2010)9 SCC 385 wherein at paragraphs 15 and 17, the Hon'ble Supreme Court held as under:

15. We have anxiously considered the submissions of the learned counsel.

Before we consider the factual and legal issues involved herein, we may notice certain well recognized principles 118 governing the exercise of jurisdiction by the High Court under Article 227 of the Constitution of India. Undoubtedly the High Court, under this Article, has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi judicial tribunals, exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with well established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this Article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, 119 caution and circumspection. The exercise of jurisdiction must be within the well recognized constraints. It can not be exercised like a `bull in a china shop', to correct all errors of judgment of a court, or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice.

17. In our opinion, the High Court in this case, has traveled beyond the limits of its jurisdiction under Article 227 of the Constitution. Both the ARC and ARCT had acted within the limits of the jurisdiction vested in them. The conclusions reached cannot be said to be based on no evidence. All relevant material has been taken into consideration. Therefore, there was hardly any justification for the High Court to undertake an investigation into 120 issues which did not even arise in the lis.

88. My view is also fortified by the judgment of the Hon'ble Supreme Court in the case of GULSHERA KHANAM .vs. AFTAB AHMAD reported in (2016)9 SCC 414 wherein the Hon'ble Supreme Court at paragraphs 34 and 35 has held as under:

34. In our considered opinion, the question in relation to the bona fide need of the appellant's daughter to expand the activities of running the clinic was rightly held by the Prescribed Authority and the first appellate Court in appellant's favour by holding the appellant's need to be bona fide and genuine. We find no ground on which the High Court could have upset the concurrent finding on this question in its writ jurisdiction under Article 227, which is more or less akin to revisional jurisdiction of the High Court. The High 121 Court also failed to hold that finding of the two courts were so perverse to the extent that any judicial person could ever reach to such conclusion or that the findings were against any provision of law or were contrary to evidence adduced etc.

35. The High Court, in our view, should have seen, as was rightly held by the two courts below, that the appellant's daughter had been running her medical clinic in shop No.7 for quite some time.

This fact was not in dispute. Though a feeble attempt was made by the respondent contending that after appellant's daughter's marriage, she has started living in Moradabad and, therefore, her need to run the clinic and expand its activity is not bona fide but this plea did not find favour with the Prescribed Authority and the first appellate Court and, in our view, this being a pure finding of fact, was 122 binding on the High Court in its writ jurisdiction.

89. For the reasons stated above, the point raised in the present writ petition is answered in the negative holding that the petitioner-defendant has not made out a prima facie case to interfere with the concurrent findings of fact recorded by the Courts below while granting Temporary Injunction in favour of the plaintiffs, in the facts and circumstances of the case. Accordingly, the trial Court is justified in allowing the application filed under order XXXIX Rules 1 and 2 r/w Section 151 of Code of Civil Procedure granting the order of Temporary Injunction in favour of the plaintiffs and the first appellate Court rightly affirmed the order passed by the trial Court. Hence no interference is called for under Article 227 of the Constitution of India. Accordingly, the writ petition is dismissed. 123

However it is made clear that during the pendency of suit, any developmental activity/alienation or any encumbrance in favour of the third parties in respect of the suit schedule properties by the plaintiffs will be hit by the provisions of Section 52 of the Transfer of Property Act and is always subject to the result of the suit. It is also made clear that any observations made by the Courts below while deciding the application for Temporary Injunction and this Court while deciding the present writ petition shall not come in the way of either of the parties to establish their rights independently. Taking into consideration the controversy between the parties and since the suit is of the year 2012 (five years old), the trial Court is directed to expedite the suit itself expeditiously subject to cooperation of the parties strictly in accordance with law.

It is also made clear that the plaintiff-respondent shall not claim any equity in case he fails to succeed in the suit.

124

All the contentions raised by both the parties are left open to be urged in the suit and the trial Court shall decide the suit strictly based on the oral and documentary evidence to be adduced and produced by both the parties and in accordance with law.

Sd/-

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Karnataka High Court