Karnataka High Court
Sri Channarayappa vs Narayanappa on 16 September, 2014
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 16TH DAY OF SEPTEMBER, 2014
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
M.F.A NO.4654/2014
C/W
M.F.A.NO.4655/2014 (CPC)
BETWEEN:
SRI. CHANNARAYAPPA
S/O LATE PAPAIAH
AGED ABOUT 63 YEARS
R/AT KATTIGENAHALLI VILLAGE
JALA HOBLI,
BANGALORE NORTH TALUK.
...COMMON APPELLANT
(BY SRI.C. HANUMANTHA RAO, ADVOCATE FOR
SRI VISHWANATH H.M. ADVOCATE)
AND:
1. NARAYANAPPA
S/O LATE PAPAIAH
AGED ABOUT 65 YEARS
2. SMT. NANJAMMA
W/O LATE CHIKKAMUNIYAPPA
AGED ABOUT 68 YEARS
3. SRI. SUBBANNA
W/O LATE CHIKKAMUNIYAPPA
AGED ABOUT 62 YEARS
4. SRI. NARAYANASWAMY
W/O LATE CHIKKAMUNIYAPPA
AGED ABOUT 54 YEARS
2
RESPONDENT NO.1 TO 4 ARE R/AT
KATTIGENAHALLI VILLAGE
JALA HOBLI,
BANGALORE NORTH TALUK
5. SMT. LAKSHMAMMA
W/O KIRHNAPPA
AGED ABOUT 73 YEARS
6. SMT. JAYAMMA
W/O KRISHNAPPA
AGED ABOUT 73 YEARS
RESPONDENT NO.5 AND 6 ARE
R/AT NO. 523, 521,
BRAMIN STREET
OLD YELAHANKA
BANGALORE-64.
7. SMT. RUPANARENDRA
W/O M.P. NARENDRA
AGED ABOUT 49 YEARS
R/AT NO.20, ALSA TERRACES,
NO.26, CORNWELL ROAD
CANGFORD TOWN
BANGALORE-560 025.
...COMMON RESPONDENTS
MFA.NO. 4654/2014 IS FILED UNDER ORDER 43,
RULE 1 (r) OF CPC, AGAINST THE ORDER DATED
10.06.2014 PASSED ON I.A.NO.4, IN O.S.NO. 633/2009 ON
THE FILE OF THE SENIOR CIVIL JUDGE, JMFC,
DEVANAHALLI, DISMISSING I.A.NO.4 FILED UNDER
ORDER 39, RULE 1 & 2 R/W SECTION 151 OF CPC.,
MFA.NO. 4655/2014 IS FILED UNDER ORDER 43,
RULE 1 (r) OF CPC, AGAINST THE ORDER DATED
10.06.2014 PASSED ON I.A.NO.3, IN O.S.NO. 633/2009 ON
THE FILE OF THE SENIOR CIVIL JUDGE, JMFC,
DEVANAHALLI, ALLOWING I.A.NO.3 FILED UNDER ORDER
39, RULE 1 & 2 R/W SECTION 94(e) AND 151 OF CPC.,
3
THESE APPEALS ARE COMING ON FOR ADMISSION
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These two appeals are preferred by the plaintiff against order passed on I.As.III and IV by Sr.Civil Judge & JMFC, Devanahalli dated 10.06.2014 in O.S.No.633/2009 allowing the application IA.III filed by 7th defendant under Order 39 Rules 1 and 2 read with Sections 94(e) and 151 CPC and granting an order of temporary injunction restraining the plaintiff and first defendant, their agents from interfering with 7th defendant's peaceful possession and enjoyment of the property described in schedule to I.A.III and also dismissing I.A.IV filed by the plaintiff under Order 39 Rules 1 & 2 read with Section 151 CPC whereunder plaintiff had sought an order of temporary injunction against 7th defendant from interfering with plaintiff's possession and enjoyment of suit schedule property.
2. I have heard the arguments of Sri C Hanumantha Rao, learned Advocate appearing for Appellant-plaintiff. Perused the order under challenge as also pleadings, applications and objections filed thereto. 4
3. It is the contention of Sri C Hanumantha Rao, learned Advocate appearing for plaintiff that trial Court committed a serious error in allowing the application of 7th defendant and dismissing the application of plaintiff without considering the fact that plaintiff had filed the instant suit for partition and separate possession claiming ½ share and in the event of plaintiff succeeding in the suit, if his possession is not protected during pendency of the suit the ultimate decree that may be passed would become a paper decree and he would not be able to enjoy fruits of the decree. He would elaborate his submission by contending that trial Court committed a serious error in arriving at a conclusion that documents produced by the plaintiff is subsequent to filing of the suit and they have no relevancy, though said documents would indicate that suit property is now coming within the jurisdiction of BBMP and revenue records produced would also indicate that it stands in the name of plaintiff and as such trial Court ought to have granted an order of temporary injunction in favour of plaintiff and rejected the application filed by 7th defendant. He would also submit that plaintiff has also sought for declaration that sale deeds executed by defendants 5 and 6 in favour of 5 defendant No.7 is not binding on him and said sale transactions is hit by Sections 79A and 79B of the Karnataka Land Reforms Act, 1961 and as such no right would accrue to 7th defendant to claim possession under void sale deeds. Hence, he contends that order of trial Court is liable to be set aside and application filed by 7th defendant be rejected and prays for allowing the application filed by plaintiff, by allowing these appeals.
4. Having heard the learned Advocate appearing for plaintiff and on perusal of the pleadings, order under challenge and after bestowing my careful attention to the contentions raised as also perusal of the order under appeal, I am of the considered view that this appeal does not merit admission for the following reasons:
7th defendant who had been subsequently impleaded in the suit has filed his written statement claiming right to an extent of 2 acres 5 guntas in Sy.No.196/1 and 2 acres 10 guntas in Sy.No.196/3 as morefully described in schedule to I.A.III based on two sale deeds dated 08.02.1995 and 09.02.1995. Records produced before trial Court which came to be examined and 6 scrutinized by trial Court indicated that defendants-5 & 6 have sold the suit property in favour of 7th defendant under these two sale deeds. Father of defendants- 5 & 6 had purchased said property for valuable consideration under registered sale deeds dated 20.03.1967, 06.04.1967, 31.03.1971 and 27.10.1977. Sri. Papaiah, father of plaintiff and defendant No.1 and Chikkamuniyappa father of defendants 2, 3 & 4 are undisputedly the vendors under the registered sale deeds executed by them on 20.03.1967 and 06.04.1967 which was in favour of the abovesaid Sri. Ammayappa i.e., father of defendants-5 & 6. Trial Court has found from the recitals of said sale deeds that suit property had been conveyed thereunder for the maintenance of minor children and for maintenance of the family and other legal necessities. Daughters of above said late Sri. Ammayappa have sold the property in favour of 7th defendant who have been arrayed as defendants 5 & 6 in the suit in question. Thus, primafacie it would indicate that plaintiff's predecessor in title were divested of possession of suit schedule property way back in the year 1967 itself i.e., subsequent to the alienation in the year 1967 and khata of suit schedule property had been mutated in the name of 7 father of defendants 5 & 6 and he has been paying taxes to the Government. Subsequently, defendants 5 & 6 have sold suit schedule property in favour of 7th defendant under two registered sale deeds dated 08.02.1995 and 09.02.1995. Thereafter, 7th defendant has got the khata of suit schedule property mutated to his name and has been in possession and enjoyment of suit schedule property as evidenced from the revenue records produced before the trial Court.
5. Though plaintiff produced khata extract said to have been issued by BBMP, trial Court has noticed that it is of the year 2014 i.e., after filing of I.A.III by 7th defendant and as to the nexus between said document namely, khata extract and suit schedule property was not established and no evidence has been placed by the plaintiff in this regard. On the other hand 7th defendant has been able to establish that under registered sale deeds dated 08.02.1995 and 09.02.1995 she has purchased the suit schedule property from father of defendants 5 & 6 and she has been in possession and enjoyment of the same. Trial Court having noticed that cause of action pleaded by 7th defendant seeking temporary injunction against plaintiff is incidental to the cause of action pleaded in the plaint and as such, having 8 taken note of the fact that plaintiff and defendants 1 to 4 had been divested of possession of suit schedule property in the year 1967 itself, has held that plaintiff does not have any primafacie case but on the other hand, it is the 7th defendant who is having primafacie case and proof of title to suit schedule property is also established by them by producing revenue records namely, RTC extracts and a presumption arises under Section 133 of Karnataka Land Revenue Act, 1964 in favour of 7th defendant inasmuch as, entries found therein stands in the name of 7th defendant and as such, presumption that contents thereof are true and correct which has not been rebutted by plaintiff and as such trial Court has held that 7th defendant has proved primafacie possession and enjoyment of suit schedule property. In that view of the matter, trial Court has rightly arrived at a conclusion that three necessary ingredients for grant of temporary injunction is in favour of 7th defendant i.e., primafacie case, balance of convenience and irreparable loss and injury and as such it has granted as order of temporary injunction in favour of 7th defendant and has also rightly dismissed the application filed by plaintiff wherein he had prayed for grant of an order of temporary injunction against 9 7th defendant. I find no infirmity in the said finding recorded by trial Court and order passed by trial Court does not call for interference at the hands of this Court. Accordingly, appeals are hereby dismissed and order passed by the trial Court dated 10.06.2014 is hereby affirmed. No costs.
6. It is needless to state that observations made by the trial Court as well as by this Court is confined for the purposes of considering the prayer made in interlocutory applications only. All contentions of both parties on merits of the case are left open to be considered by trial Court at the time of final adjudication.
Appeals having been dismissed, I.A.2/14 for stay does not survive for consideration. Accordingly, it is dismissed.
Sd/-
JUDGE *sp