Karnataka High Court
A.P. Nagaraj vs V.R. Krishna on 12 October, 1995
Equivalent citations: AIR1996KANT202, ILR1996KAR753, AIR 1996 KARNATAKA 202, (1996) ILR (KANT) 753
ORDER
1. This is a revision application under Section 115 of the Code of Civil Procedure. The plaintiff-applicant filed suit for permanent injunction restraining the defendant from interfering with the plaintiff's peaceful possession and enjoyment of the suit property in O.S. No. 117/93. The plaintiff claimed that under an agreement to sell dated 28-5-1985, the respondent agreed to sell the property in dispute for a sale consideration of Rs. 52,000/-. According to the plaintiffs case the plaintiff paid the entire sale consideration on different dates as and when defendant demanded and he put the plaintiff into possession of the land in dispute. The plaintiff filed the suit with the allegation that defendant threatened to interfere and tried to take possession of the same from the plaintiff, so the plaintiff filed the suit for decree for permanent injunction. Plaintiff claim himself entitled to the possession of the land in dispute under that agreement. Along with the plaint of the the suit, the plaintiff-applicant filed an application under Order 39, Rules 1 and 2 of the C.P.C., for grant of temporary injunction restraining the defendant from interfering with plaintiffs possession during the pendency of the suit. Ex parte injunction was granted by the trial Court and thereafter notice was also issued to the defendant along with the summons of the suit and opposite party was called upon to file the objections to the application for temporary injunction under Order 39, Rules 1 and 2 of the C.P.C.
2. The trial Court after consideration of the application and the objections and the material before it, by its order dated 30-9-1993 made the interim order of injunction absolute and dismissed the application LA. No. 4 which had been moved by defendant-respondent for vacation of the injunction order.
3. Having felt aggrieved from the judgment and order of the learned Munsiff, dated 30-9-93, the defendant preferred Miscellaneous Appeal No. 22-93 in the Court of Civil Judge, Madikeri. By judgment and order dated 4th August, 1995, the learned Civil Judge allowed the defendant-respondent's appeal and set aside the judgment and order of the Munsif dated 30-9-93 and vacated the temporary injunction order which had been granted by the learned Munsiff.
4. The lower appellate Court has also taken the view that the document namely the agreement of sale on which the plaintiff has tried to rely has not only been denied but it has also been alleged that the said agreement has been challenged with serious allegations of fraud and misrepresentation and as such the document cannot be accepted on its face value. It further observed that under the Government grant there were certain conditions that the grantee could not transfer the land for a definite period. So permitting entering into such a contract would only defeat the purpose of the grant. The lower appellate Court has mentioned that apart from the agreement and the General Power of Attorney no other document has been filed to prove possession and so it cannot be said-that the plaintiff had been put in possession and he has purchased the said property under agreement as alleged execute the sale deed. It is on this basis that the lower appellate Court set aside the order of the trial Court.
5. Having felt aggrieved from the judgment and order of the learned Munsiff in Misc. Appeal No. 22/93, theplaintiffhas filed this revision petition under Section 115 of the C.P.C. It may be mentioned here that the trial Court at page 12 of the copy of the judgment recorded the finding to the effect that plaintiff is in possession of the suit property under agreement to sell. The trial Court held that the plaintiff had made out a prima facie case and he had been in lawful possession and cultivated Coffee crop and that if the temporary injunction is refused he would be subjected to irreparable loss and it granted the temporary injunction order.
6. The lower appellate Court while allowing the appeal has held -- "Here in this case admittedly the plaintiff has not entered into a contract of sale with the defendant for a absolute sale. He intends to purchase the property after the expiry of the statutory period of a condition prohibition against alienation imposed by the authority while granting the land in question. That in the meanwhile the defendant himself has denied agreement with the serious allegations of fraud and misrepresentation. Therefore the relief under such an agreement itself is rather doubtful. Further the mutation and jama bandhi entry even after the alleged agreement has stood and continued in the name of the defendant which shows there is a presumption of possession under a statute in favour of the defendant and further the specific relief is only a discretionary relief provided the plaintiff has established all the required conditions and one such he must be ready and willing to perform such a contract. When the statute itself is barred for such contract for certain period the ready and willingness does not arise for it and in such circumstances even if the plaintiff succeeds in proving the agreement of sale his remedy is only for compensation. .....On looking into the facts and circumstances, I feel the plaintiff has no either a prima facie case or the balance of convenience. Further the injury is also not irreparable one and the order of temporary injunction granted in favour of the plaintiff is erroneous and liable to be set aside." Apart from that the lower appellate Court has also held that the transaction in question has been hit by Section 23 of the Contract Act. The lower appellate Court observed alternatively also "that even if possession was delivered to the plaintiff in pursuance of the agreement of sale, he is not entitled to protection of Section 53 of the Transfer of Property Act, when the transaction is illegal and void and has not been acted upon and so the plaintiff is not entitled to injunction."
7. I have heard learned counsel for the revisionist applicant Smt. T. N. Manjuladevi and Sri K. S. Desai for the respondent. It has been urged on behalf of the revisionist applicant that the lower appellate Court erred in law in taking the view that the agreement under which the plaintiff alleged to have entered into possession was illegal and void being hit by condition contained in Rule 9 of the Karnataka Land Grant Rules 1969. She submitted that no doubt Rule 9 of the Land Grant Rules bars and prohibits alienation or transfer of the land granted by the Government for a period of 15 years, but it has also been provided that after expiry of the 5 years period a person can transfer or alienate the property in certain conditions referred to in the proviso, on the basis of which permission can be granted by the Deputy Com-
missioner and after obtaining the permission the property can be transferred. Therefore, the learned Counsel submitted that in the present case 5 years of period passed on when the agreement had been entered into and the property could be alienated after obtaining the permission of the Deputy Commissioner. Smt. Manjula Devi submitted that the document in the present case was not a document of transfer and it was not a contract of sale or say the sale deed nor was a document of alienation, and the transfer of the property shall be made only after obtaining necessary permission from the Deputy Commissioner, for which it is mentioned that application has been made. Smt. Manjula Devi submitted that therefore this document is not a document of transfer, but an agreement to transfer later on and did not affect any alienation. The finding of the Court below that the document is void and illegal is wrong and the approach of the Court on the basis of this finding that the document could not be considered for purpose of determining the question of possession or handing over possession is an illegality. She further submitted that the title no doubt did not pass on to the applicant by and under this document. She submitted that only agreement was to transfer at a later stage but possession in lieu of the money given, no doubt has been given to the applicant by the defendant. She further submitted that the appellate Court ignored many documents, the trial Court considered every document including the affidavit and recorded finding in her favour. She also submitted that really the affidavits filed were also not considered, but this point has not been taken in the grounds. She further submitted that the affidavit filed by the plaintiff in support of interim injunction was not considered. The learned counsel for the applicant further submitted that the lower appellate Court while allowing the appeal acted contrary to the basic principles of law which relates to the grant of interim injunction. In the sense that the Court had to look to the prima facie case no doubt but there is distinction between prima facie case and the prima facie title. Here the Court had started deciding the question of prima facie title which could not be done at this stage and in this respect the lower appellate Court decided that question and it really exceeded its jurisdiction or it may be said acted illegally. She submitted prima facie title is to be distinguished from prima facie case and if there is a case worth trial and the parties possession is proved and balance of convenience is proved as held by the trial Court, injunction was rightly granted by the trial Court, but the lower appellate Court acted illegally in setting aside the order.
8. Smt. Manjula Devi was emphatic about the finding of the Court regarding agreement to be void. She challenged that finding very emphatically and submitted that agreement could not be held to be void and was not void. She further submitted that the order if it is allowed to stand, it may cause irreparable injury and cause hardship and thus the finding recorded by the lower appellate Court at [his stage may affect the case on merits and prejudice the mind of the Court when trying the suit. So the order deserves to be set aside.
9. The contentions on behalf of revisionist applicant were hotly contested by Sri. K. S. Desai learned Counsel for the respondent. Sri, K. S. Desai submitted before me that the lower appellate Court has recorded the finding that the plaintiff has failed to prove the actual transference of possession in his favour. He also submitted that though judgment does not per se indicate that the affidavit has been considered, but a reading of the judgment indicate that whatever could have been said in the affidavit had been submitted during the course of the arguments. Sri. K. S. Desai further submitted that no such ground has specifically been taken at any stage by the revisionist applicant that the applicant's allegations made in the affidavit have not been considered. So that argument may not be taken for consideration. Sri. Desai further submitted that agreement to transfer may not by itself convey the title, but this is a process towards alienation and therefore when this process has started in violation of Rule 9 of the Karnataka Land Grant Rules, contract could be said to be void in view of Section 23 of the Contract Aci. Sri. Desai very fairly submitted that agreement to sell may not by itself be alienation, it may not be said to be covered by Rule 9 of the Rules, but definitely this is a process towards that and therefore it required to be considered by the appellate Court to see the prima facie case. The tower appellate Court should not have recorded a definite finding on question, because this matter has to be considered finally at the stage of hearing and those findings may not be binding on the parties at the stage of the trial of the suit. Sri. Desai fairly submitted that the lower appellate Court may be said to have exceeded its jurisdiction at the stage of granting interim relief in recording a concrete finding to the effect that the agreement was invalid and void. In the matter of granting injunction no doubt if any body claims possession, he has to show prima facie that he is in possession, under a lawful agreement or in possession with the permission of the person. Sri. Desai referred two decisions of this Court namely in the case of Sharma v. Puttegowda for the proposition that when the document is disputed and no other evidence including the affidavit of any of the neighbouring Jand holders has been produced, it had been held that plaintiff has not placed satisfactory evidence either oral or documentary to prove prima facie possession. He also made reference to the decision of this Court in the case of Gollappagouda v. Linganna, reported in 1988 (3) Kant LJ (Suppl) 435 in this connection that when the document itself is disputed and is denied, then unless his rights under disputed document is fully established, a person is not entitled to claim benefit or to rely thereof for the purpose of injunction. He submitted that the scope of jurisdiction under Section 115 of the C.P.C., is limited to jurisdictional error and to no other. Sri. Desai submitted that jurisdiction of this Court under Section 115 of C.P.C. arises in the cases where Court has acted in excess of jurisdiction or where Court has refused the exercise of jurisdiction vested or where it has acted illegally or with material irregularity and in no other case and errors either of law or fact will not entitle this Court under Section 115, C.P.C., to entertain the revision, unless it is an error which affects the jurisdiction one way or the other.
10. I have applied my mind to the respective contentions of the learned counsels for the parties that as regard the scope of juris-' diction of this Court under Section 115 of C.P.C., Sri. Desai is perfectly justified in submitting that jurisdiction of this Court under Section 115, C.P.C., is limited to jurisdictional error, as we find under Section 115, C.P.C., namely -- the cases where Court has exercised jurisdiction not vested; where the Court has refused to exercise the jurisdiction vested or Court has acted illegally or acted with material irregularity in exercise of jurisdiction, but I may add 4th clause which may be moreover either A or B, in the light of the iaw laid down by the Supreme Court in the case of Chaube Jugdish Prasad v. Ganga Prasad Chaturvedi, and by the Privy Council in the case of Joy Chand Lal Babu v. Kamalaksha Chaudhury (AIR 1949 SC 239). Those are the cases where by taking an erroneous decision the subordinate Court has usurped jurisdiction not vested in it or has refused to exercise the jurisdiction vested in it. I may quote the observations of their Lordships of the Supreme Court , which read as under:--
"Therefore if an erroneous decision of a subordinate Court resulted in its exercising jurisdiction not vested in it by law or failing to exercise the jurisdiction so vested or acting with material irregularity or illegality in the exercise of its jurisdiction the case for exercise of powers of revision by the High Court is made out. In Joy Chand Lal Babu v. Kamalaksha Chaudhury, AIR 1949 PC 239, the subordinate Court gave an erroneous decision that the loan was a commercial loan and therefore refused to exercise jurisdiction vested in it by law and the Privy Council held that it was open to the High Court to interfere in revision under Section 115."
11. In the case of Chaube Jagdish Prasad, it is observed that some of such decisions prompt the observation "that High Courts have not always appreciated that although error in a decision of a subordinate Court does not by itself involve that the subordinate Court has acted illegally or with material irregularity so as to justify interference in revision under sub-section (c), nevertheless, if the erroneous decision results in the subordinate Court exercising a jurisdiction not vested in it by law or failing to exercise a jurisdiction so vested a case for revision arises under sub-section (a) or subsection (b) and sub-section (c) can be ignored.
12. According to these cases even erroneous decisions on questions of law or fact affecting jurisdiction and on the basis of the erroneous decision thereof if subordinate Court assumes jurisdiction or refuse to exercise jurisdiction vested, a case for revision can be said to be made out. The revisional jurisdiction no doubt is limited as mentioned above.
13. Prima facie case what is meant --Prima facie case has always got to be distinguished from prima facie title. The prima facie case really means that there is a case which requires trial and that the case is not the one based on erroneous and vexatious grounds. In the case of Krishna Moorthy v. Bangalore Turf Club, (1975) 2 Kant LJ 428, the material observations made in this regard in paragraphs 8 and 9 read as under:--
"The traditional theory underlying the grant or refusal of interlocutory injunctions has always been that the Court abstains from expressing any opinion upon the merits of the case until the hearing, but acts merely to minimise the sum total of irreparable damage to the litigants. However, in recent times the tendency has been to adopt a more robust attitude, and to be guided more and more by the apparent strength or otherwise of the plaintiff's case as revealed by the affidavits. Though this procedure has been commonly followed, and has become popular, the Court, however, should guard itself from "deciding the case" on motion. I am constrained to make this observation because, the lower Court in this case has virtually decided the case, while granting the interlocutory injunction. Such practice, if I may add, is wholly undesirable. The experience reminds me that the standard of justice done on motion is very often misled and different from that arrived at the trial of the case.
14. These observations clearly show that when deciding the question prima facie case, it is generally not desirable and open for the Court to record to decision on the merits of the pleas taken in the suit. In paragraph 9, Hon'ble Mr. Justice Jagannatha Shetty, further observes.-
"Let me now turn to the merits of the contention. I do not want to reproduce hereunder the lengthy resolutions which are the subject-matter of the suit. I proceed on the assumption or basis that the plaintiff has made out a prima facie case in the sense that the case he has proved calls for an answer. In other words, his case may not be frivolous or vexatious, and might appear stronger on the balance of probabilities. But that by itself is no ground for any Court to issue injunction. What matters is the balance of convenience. It must be a major consideration. The Court must decide in whose favour the balance of convenience lies. A man who seeks the aid of the Court by way of interlocutory injunction must, as a rule, be able to satisfy the Court that its interference is necessary to protect him from that species of injury which the Court calls irreparable, before the legal right can be established upon trial. The Court must pertinently put the question "Will the plaintiff suffer irreparable damage if no injunction is granted now?. "Last but not the least the Court always must look to the conduct of the plaintiff and will refuse to interfere even in cases where it acknowledges his right unless his conduct in the matter has been fair and honest and in particular without acquiescence or delay."
15. In the present case the lower appellate Court appears to have gone into the question of validity or otherwise of the agreement. Really speaking the learned Munsiff nor the learned lower appellate Court should have gone into the question of validity of. the agreement to sell. That was a question to be tried in the suit. The case had to be decided keeping in view the proper interpretation of Rule 9 of the Rules and whether it affects the agreement to sell in future and in view of provisions of Rule 9 whether a party can agree to sell property after obtaining permission.
These are all questions which could be argued at the stage of final hearing when the main relief had to be granted. It appears the two Courts below laid much emphasis on it. Whatever findings have been recorded by the court below -- whether (he appellate Court or the trial Court, I must observe that those findings will not have any binding effect on the parties at the time of the final hearing of the case and it shall always be open to raise respective contentions and it is for the Court to decide according to law at that stage. But as a note of caution I must mention that prima facie case must be taken to mean that there is a case which requires trial and that the pleas that have been raised by the plaintiff call for an answer. If there is a case in which pleas are required to be answered, the case could be said to be a prima facie case, which require trial and decision. What is prima facie title, is to be determined at the time of the trial and final decision of the suit, as regards the possession or whether actual possession has been delivered in terms of agreement without making any observation to the effect that whether the agreement has been valid or invalid. In the agreement in the present, there is one circumstance to the effect that the defendant has admitted his signatures on the agreement.
16. In the case of Gollappagouda 1988 (3) Kant LJ (Supp) 435, it has been observed as under:
"Having regard to the rival contentions, this Court summoned the records of the lower Court to peruse the agreement for sale, the execution of which the plain tiff had denied. It is seen from the records that plaintiff has not signed the said agreement of sale. Therefore, if the defendant has not yet established his full rights under the disputed document, he certainly is not entitled to claim the benefit under the document which the appellate Court has rightly refused to extend to the defendant."
17. In this case it appears the execution was denied, as well signatures were also denied and the Court observed that it is seen from the document that the plaintiff has not signed Ihe said agreement of sale. In the present case it appears and as has been rightly pointed by Ihe learned Counsel for the parties that so far as the signature on the document is concerned i.e., agreement to sell, have been admitted to be that of the defendant-opposite party. No doubt in the pleadings it was said that the document was obtained by fraud or misrepresentation. The burden is on the defendant-opposite party to prove that. But once signatures have been admitted and unless it is proved that the signatures were obtained by playing fraud, the burden of proof of which is on the defendant then prima facie the document could be taken into consideration. The case which has been relie by learned counsel for the opposite party namely Gollappagouda's case, 1988 (3) Kant LJ (Supp) 435 is of no assistance to the opposite parties and is distinguishable on facts. Here the facts are different and the distinction is that of admission of signatures to be that of the defendant-respondent. The lower appellate Court ignored this document simply saying that the defendant had denied the document and has taken a plea of fraud and misrepresentation. But the basic aspect is that the signature has already been admitted. Unless it is proved that the signature was obtained on blank papers etc., it cannot be said that on the basis of this ruling that the evidence contained in the document could be ignored. If a finding of fact is recorded after having ignored the material on record on illegal grounds, then the Court can be said to be acting illegally and with material irregularities. I may refer herewith to S. P. Sri-vastava v. Prem Lata . Apart from that I have found that while recording the finding on the question of possession the affidavit has also not been considered. The Court could have said that there is no sufficient evidence and that would have been a different matter. But the trial Court relied on that evidence but the lower appellate Court has not considered it. In my view upsetting the judgment by recording a finding after ignoring the material evidence, on a wrong basis, in the particular circumstances of the case, really results in illegal exercise of jurisdiction by the Court below, in its recording a finding on question of possession and then allowing the appeal and setting aside the judgment. It has also recorded a finding on the basis of its decision on merits to the effect that the agreement was void, when it was not desirable at this stage to decide that question. In my opinion the lower appellate Court acted illegally.
18. In the circumstances of the case I think it just and proper to set aside the judgment of the lower Appellate Court and allow the revision. The matter I think should be remanded to the lower appellate Court for decision of the appeal afresh in the light of the above observations, but till the decision is given by the lower appellate Court the order of the trial Court shall remain operative. It is expected that the lower appellate Court will not commit the same mistake of treating prima facie case of possession as prima facie title and it will not record any finding on illegality or otherwise of the agreement at this stage. Let that he kept open to be decided at the stage of final hearing.
19. The lower appellate Court is expected to decide the appeal expeditiously and the learned Counsel are expected to give their best co-operation.
20. The appeal may be decided at the earliest possible and in any case not beyond the period of 6 months. In every case within a period of 6 months from the date of service or production of the copy of this order before it. The civil revision is allowed as above and costs of revision are made easy.
21. Revision allowed.