Amboji Rao vs Ekambaram

B. Manohar, J.—Petitioner who is the plaintiff in O.S. No. 497/2010, being aggrieved by the order dated 30th May 2012 made in M.A. No. 12/2011 passed by the Additional Civil Judge (Sr.Dn) and JMFC, Bhadravathi, setting aside the interim order made on I.A. No. 2 in O.S. No. 497/2010 has filed this writ petition.

The petitioner filed O.S. No. 497/2010 inter alia contending that he purchased the suit schedule property as per the registered sale deed dated 29-03-2010 from one Krishnamurthy and others. Thereafter, on the basis of the said sale deed, mutation entry has been made. It is a vacant land and the petitioner has been in possession and enjoyment of the said land from the date of purchase. However, the defendants are trying to interfere with his possession of the suit schedule property and also trying to dispossess him. In view of that, he filed a suit seeking for permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit schedule property. Further, he also filed I.A. No. 2 under Order 39 Rules 1 and 2 of CPC seeking for temporary injunction.

The Trial Court, after considering the objections filed by the defendants, by its order dated 30th May 2011 allowed I.A. No. 2 and restrained the defendants from interfering with the plaintiffs peaceful possession of the suit schedule property till the disposal of the suit. Being aggrieved by the said order, the defendants filed M.A. No. 12/2011 contending that as per the registered sale deed dated 18-03-1975, the predecessor of the respondent in the appeal Sri. V. Raghava purchased the land measuring 10 x 119 feet and another land measuring 10 x 89 feet from one Krishnamurthy and his mother Smt. Yellubai. The total extent of the land owned by Krishnamurthy and his mother was 20 x 119 feet and the remaining 10 x 30 feet was retained by the said Krishnamurthy and his mother. Subsequently, Krishnamurthy sold the property retained by him in favour of the plaintiff in the year 2000. Hence, Krishnamurthy is not the owner of the land and he has no right to alienate the property to the plaintiff on 29-03-2010 and that the plaintiff will not get any title over the said property. On the date of purchase, the defendants have been in possession of the property. The plaintiff, in collusion with Krishnamurthy and his son got the sale deed executed during 2010 in respect of the suit schedule property for which, Krishnamurthy is not the owner at all. The mutation entry in respect of the suit schedule property has been set aside by the competent authority. Suppressing the true facts, the plaintiff had obtained an order of injunction and sought for setting aside the same. The Lower Appellate Court after considering the matter in detail held that the order passed by the Trial Court granting temporary injunction in favour of the plaintiff is contrary to law and cannot be sustained. Accordingly, by its order dated 30th May 2012 allowed the appeal and set aside the order of injunction granted by the Trial Court. Being aggrieved by the order passed by the Lower Appellate Court in M.A. No. 12/2011, the plaintiff has preferred this writ petition.

Sri. B.K. Manjunath, learned counsel appearing for the petitioner contended that the order passed by the Lower Appellate Court is contrary to law. On the basis of the registered sale deed dated 29-3-2010 the plaintiff was put in possession of the property. The mutation entry shows that the plaintiff is in possession of the property. The Trial Court on the basis of the records produced by the plaintiff held that the plaintiff had made out a prima facie case and the plaintiff has been in possession of the suit schedule property, if the temporary injunction is not granted, the plaintiff would be put to irreparable injury and hardship and hence granted an order of temporary injunction pending disposal of the suit. However, the Lower Appellate Court without considering the matter in proper perspective, only on the basis that the sale deed of the defendant is prior to the sale deed of the plaintiff and the vendor has no right to alienate the property in favour of the plaintiff, set aside the temporary injunction, which is contrary to law. The balance of convenience is in favour of the plaintiff and sought for allowing the writ petition by setting aside the order impugned in the writ petition.

Sri. S.V. Prakash, learned counsel appearing for the respondents argued in support of the order made in M.A. No. 12/2011 and contended that the Vendor of the plaintiff had already sold the suit schedule property in favour of the predecessor of the defendants on 18-03-1975. The sale deed executed by Krishnamurthy and his mother Yellubai was questioned in O.S. No. 166/1976 by the sisters of Yellubai claiming partition and separate possession in respect of the said property. The said suit was dismissed by the Trial Court. R.A. No. 62/1982 filed by the sisters of Yellubai was also dismissed confirming the order passed by the Trial Court. In view of pendency of the suit, the defendants could not get their names entered in the mutation register. In the meantime, V. Raghava who had purchased the property died and the daughter of the said Raghava also died. The defendants could not take steps. Taking advantage of continuation of the name of Krishnamurthy in the mutation register and in collusion with the plaintiff, Krishnamurthy once again sold the property to the plaintiff though he is not the owner of the property. From the date of purchase, these defendants have been in possession of the property which is a vacant site. It is also contended that the plaintiff and the said Krishnamurthy are close relatives. Taking note of all these aspects of the matter, Lower Appellate Court set aside the order of temporary injunction granted by the Trial Court and sought for dismissal of the writ petition.

I have carefully considered the arguments addressed by the learned counsel for the parties and perused the orders impugned and other relevant records and pleadings of the parties.

The records clearly disclose that one Krishnamurthy and his mother Smt. Yellubai are the owners of the vacant site bearing No. 25, Janjar No. 40 measuring 20 ft. x 119 ft. situated at Singanamane village, Bhadravathi Taluk. The predecessor of the defendants i.e., V. Raghava purchased the land measuring 10 x 119 feet and 10 x 89 feet from Krishnamurthy and his mother Yellubai as per registered sale deed dated 18-3-1975. Krishnamurthy and his mother retained the remaining vacant site measuring 10 x 30 feet and the said vacant site was sold in favour of the plaintiff during the year 2000. The alienation of the land in favour of Raghava was challenged by the sisters of Yellubai in O.S. No. 166/1976 claiming partition and separate possession in respect of the said property and also declaration to declare the sale deed dated 18-3-1975 as null and void. The said suit was dismissed by the Trial Court, against which R.A. No. 62/1982 was filed and the same was also dismissed by the Lower Appellate Court. In view of pendency of the suit, the name of the purchaser was not mutated in the village Register. The name of the erstwhile owner Krishnamurthy was continued. The plaintiff is a close relative of the said Krishnamurthy. Taking advantage of the same, Krishnamurthy once again sold the property in favour of the plaintiff as per the registered sale deed dated 29-03-2010, which was already sold in favour of the predecessor of the defendants. On the basis of the said sale deed, the plaintiff got mutated his name. After coming to know of the same, the predecessor of the defendants challenged the mutation of the plaintiffs name in respect of the property purchased by him. The Village Panchayath set aside the said mutation entries. In view of that the plaintiff filed a suit seeking for permanent injunction restraining the defendants from interfering with the peaceful possession in respect of the vacant site and obtained temporary injunction. The Trial Court without considering the necessary documents produced by the defendants only on the basis of the sale deed dated 29-03-2010 and mutation entry on the basis of the said sale deed, granted a temporary injunction. However, the Trial Court had not taken into consideration the sale deed dated 18-3-1975 and the order made in O.S. No. 166/1975. In the said proceedings, the predecessor of the defendants is the 3rd respondent and also in R.A. No. 62/1982, the Lower Appellate Court on considering the matter in detail found that Krishnamurthy, his wife and children had no right to alienate the property in favour of the plaintiff which was already alienated in favour of the predecessor of the defendants on 18-3-1975 since Krishnamurthy, his wife and children are not the owners of the property. The plaintiff will not get the valid title and hence, set aside the order passed by the Trial Court. I find no infirmity or irregularity in the said finding. The documents produced by the parties have to be proved by leading necessary evidence. It is not appropriate to grant interim order in respect of vacant site retained by the parties even before the commencement of the trial. In the sale deed dated 18-3-1975, it was specifically mentioned that after alienating some extent of the property, Krishnamurthy and his mother had retained the property to an extent of 10 x 30 feet which was also sold in favour of the plaintiff in the year 2000. The question of Krishnamurthy once again selling the property to the plaintiff does not arise. Hence, the order passed by Trial Court cannot be sustained and the Lower Appellate Court has rightly set aside the said order.

The petitioner has not made out a case to interfere with the order passed by the Lower Appellate Court. Accordingly, the writ petition is dismissed.

The Trial Court is directed to dispose of the suit without being influenced by any of the observations made by the Lower Appellate Court as well as this Court, in accordance with law.