B.M. Muddabyrappa vs Somegowda

B. Manohar, J.—Petitioner is the plaintiff in OS No. 537/2013 on the file of the Senior Civil Judge and JMFC, Nelamangala. Being aggrieved by the order dated 2.9.2014 made in MA No. 26/2014 by the Presiding Officer, Fast Track Court-II, Bangalore Rural District, Bangalore, dismissing the appeal and confirming the order dated 9.6.2014 on I.A. No. 1 in OS No. 537/2013 passed by the Senior Civil Judge, Nelamangala, this writ petition has been filed.

Petitioner filed the suit seeking for declaration declaring that he is the owner of land bearing Sy. No. 6/5 measuring to an extent of 2 acres 3 guntas situated at Byranahalli, Kasaba Hobli, Nelamangala Taluk, Bangalore Rural District. He also filed an application under Order 39 Rules 1 and 2 of CPC seeking for temporary injunction. His case is that his sister by name, Smt. Rajamma as per registered sale deed dated 29.7.1993 purchased the suit schedule property and other two items of properties from the children of Ramaiah. Thereafter, Smt. Rajamma had executed settlement deed dated 12.12.1994 in favour of the plaintiff and mutation entry was also effected in the name of plaintiff. However, the respondent herein, who is the neighbour of the plaintiff, tried to encroach upon the suit schedule property. Hence, he filed the suit for declaration and injunction.

The defendant filed written statement denying the entire averments made in the plaint. He also contended that much prior to the purchase of the property by Smt. Rajamma, the defendant entered into an agreement of sale on 20.1.1993 with the children of Ramaiah in respect of 1 acre 4 guntas of land in Sy. No. 6/2 of Byranahalli village, Kasaba Hobli, Nelamangala Taluk. Since the children of Ramaiah have not executed the sale deed, the defendant filed OS No. 1668/2007 for specific performance of agreement of sale. After trial, the said suit was decreed on 21.8.2008. In spite of decreeing the suit, the defendant therein has not come forward to execute the sale deed. In Ex. Case No. 111/2008, the plaintiff got registered the sale deed through process of court. The defendant, much earlier to the execution of sale deed, is in possession of 1 acre 4 guntas of land. The total extent of land is 3 acres 5 guntas in Sy. No. 6/2. The defendant purchased 1 acre 4 guntas of land. The question of alienating 2 acres 3 guntas of land to Smt. Rajamma does not arise. The defendant has been in possession of suit schedule property from the date of agreement of sale by paying full consideration. The defendant sought for dismissal of the application filed under Order 39 Rules 1 and 2 of CPC.

The Trial Court after examining the matter in detail and taking into consideration the sale deed and also the judgment and decree made in OS No. 1668/2007 and Ex. Case No. 111/2008 rejected the application filed under Order 39 Rules 1 and 2 of CPC holding that the plaintiff has not made out a prima facie case for grant of temporary injunction and the balance of convenience is in favour of defendant. The Trial Court further held that if an injunction is granted, the defendant will be put to irreparable injury. Being aggrieved by the order dated 9.6.2014, the plaintiff preferred MA No. 26/2014 contending that the order passed by the Trial Court is contrary to law. He has been in possession and enjoyment of 2 acres 3 guntas of land in Sy. No. 6/2 and it was subsequently phoded and renumbered as Sy. No. 6/5. The sale deed produced by the plaintiff clearly discloses that what is purchased by Smt. Rajamma is 2 acres 3 guntas of land in Sy. No. 6/2 and not 2 acres 1 gunta of land. The revenue records clearly disclose that the plaintiff is in possession of 2 acres and 3 guntas of land. The Trial Court without examining the revenue records and the order passed in Ex. Case No. 111/2008 and other relevant records, dismissed the application, which is contrary to law.

On the other hand, the respondent in MA No. 26/2014 supported the order passed by the Trial Court contending that the defendant was put in possession of 1 acre 4 guntas of land in Sy. No. 6/2 from the date of agreement of sale dated 20.1.1993. When the defendant is in possession of 1 acre 4 guntas of land in Sy. No. 6/2, the question of alienating the land to an extent of 2 acres 3 guntas does not arise. The purchaser will not get right over the remaining two guntas of land, which is in possession of the defendant. The Trial Court taking into consideration all these aspects of the matter dismissed the application. No material has been produced to show that the plaintiff is in possession of 2 acres 3 guntas of land except producing the revenue entry. The lower Appellate Court after examining the matter in detail dismissed the appeal holding that the plaintiff has not made out a prima facie case for grant of an interim order and further that if any order is passed, it will adversely affect the interest of the defendant and the balance of convenience is in favour of the defendant. Being aggrieved by the orders of Courts below, the petitioner has filed this writ petition.

Sri A V Gangadharappa, learned Advocate appearing for the petitioner contended that the orders passed by the Courts below are contrary to law. Originally the children of Ramaiah are the owners of suit schedule property. The sister of petitioner, Smt. Rajamma, as per sale deed dated 29.7.1993 purchased the said property. Subsequently, she settled the property in favour of the petitioner on 12.12.1994. Since then the plaintiff has been in possession of the said property. The mutation entry is also effected in respect of 2 acres 3 guntas of land. However, when the defendant, who is the immediate neighbour, tried to interfere with the peaceful possession and enjoyment of the suit schedule property of the plaintiff, the plaintiff filed an application for temporary injunction. Though the defendant claimed that he is in possession of 1 acre 4 guntas of land, no document has been produced to show that he is in possession of the said extent of land. The mutation entry does not stand in the name of the defendant. On the other hand, the plaintiff produced voluminous documents to show that he is in possession. The findings recorded by both the Courts below are contrary to law. Learned Advocate sought for setting aside the orders impugned by allowing the writ petition.

On the other hand, Sri Mohan Bhat, learned Advocate appearing for the respondent argued in support of the orders passed by the Courts below and contended that from the date of agreement of sale dated 20.1.1993, the respondent has been in possession of the property since he has paid full sale consideration on the said date itself. In spite of accepting the full consideration, the children of Ramaiah have not come forward to execute the sale deed. In view of that, the defendant filed OS No. 1668/2007 for enforcement of agreement of sale. The said suit was decreed on 21.8.2008. In spite of passing of the decree, the children of Ramaiah have not come forward to execute the sale deed. In view of that, the defendant was forced to file Ex. Case No. 111/2008. In execution proceedings, the Court below executed the sale deed in respect of 1 acre 4 guntas of land in Sy. No. 6/2. During the course of passing of judgment and decree, the Trial Court noticed that the plaintiff in OS No. 1668/2007 is in possession of the said property. Since the plaintiff in the said suit is in possession of the property, in execution proceedings, the Court below executed the sale deed in respect of land measuring 1 acre 4 guntas of land in Sy. No. 6/2. The plaintiff approached the Revenue Authority for mutation entry. The defendant objected for the same. Hence, he filed the suit seeking for declaration and permanent injunction. The question of defendant''s interference with the possession of the plaintiff on 4.9.2013 does not arise. In order to get the mutation entry, the suit was filed alongwith an application under Order 39 Rules 1 and 2 of CPC. Both the Courts below concurrently held that the defendant is in possession of the property. Hence, sought for dismissal of the writ petition.

I have carefully considered the arguments addressed by the learned Advocate appearing for the parties and perused the orders impugned and other relevant records.

The records clearly disclose that the plaintiff filed the suit for declaration of his title and also an application for temporary injunction. The case of the plaintiff is that pursuant to the settlement deed dated 12.12.1994 executed by her sister, Smt. Rajamma, he is the absolute owner of the suit schedule property including other two items of properties. The name of the plaintiff was mutated in revenue records as per MR No. 9/1998-99. However, the defendant who is the neighbour is trying to interfere with the possession of the suit schedule property on 4.9.2013. In view of that, he filed the suit for declaration and other reliefs. From the date of settlement deed, the plaintiff has been in possession of the land to an extent of 2 acres 3 guntas in Sy. No. 6/2, which was subsequently phoded and renumbered as Sy. No. 6/5. The revenue records support the case of the plaintiff.

The case of the defendant is that pursuant to the agreement of sale dated 20.1.1993, he paid full sale consideration and is in possession of 1 acre 4 guntas of land. He also filed OS No. 1668/2007 for specific performance of agreement of sale. The said suit came be decreed on 21.8.2008. In spite of decreeing the suit, the defendant therein has not come forward to execute the agreement of sale. In view of that, Ex. Case No. 111/2008 filed for enforcement of the agreement of sale. The Trial Court executed the said sale deed in favour of the defendant/respondent herein and he is in possession of 1 acre 4 guntas of land.

The only dispute is with regard to 0.02 guntas of land. The total extent of land is 3 acres 5 guntas of land in Sy. No. 6/2 and it was renumbered as 6/5. The defendant claimed that by virtue of agreement of sale and subsequently the order passed in Ex. Case No. 111/2008, he is in possession of 1 acre 4 guntas of land. On the other hand, the plaintiff claimed that on the basis of settlement deed dated 12.12.1994, he was in possession of 2 acres 3 guntas of land in respect of the very same survey number. The dispute is with regard to two guntas of land. The Trial Court after examining the matter in detail found that though the plaintiff claimed that he is in possession of 2 acres 3 guntas of land in Sy. No. 6/5, no material has been placed before the Court below to show that he is in possession of land measuring 2 acres 3 guntas of land. Though the defendant claimed that he is in possession of 1 acre 4 guntas of land from the date of agreement of sale dated 20.1.1993, the Trial Court in OS No. 1668/2007 while passing the decree dated 21.8.2008 noticed that the defendant/respondent herein is in possession of 1 acre 4 guntas of land. Thereafter the sale deed was executed in view of the order passed in Ex. Case No. 111/2008. The sale deed was executed on 29.6.2009. The Trial Court taking into consideration the documents found that the defendant is in possession of land to an extent of 1 acre 4 guntas of land in Sy. No. 6/2. The parties have to prove their case on the basis of oral and documentary evidence. Both the courts below concurrently held that the petitioner has not made out a prima facie case with regard to the possession of the property. This Court in exercise of its power under Articles 226 and 227 of the Constitution of India cannot interfere with the findings recorded by both the Courts below. The Trial Court has to examine the case on the basis of the oral and documentary evidence produced by the parties. The dispute is only with regard to 0.02 guntas of land in Sy. No. 6/2. Hence, I do not find any infirmity or irregularity in the orders passed by the Courts below. The petitioner has not made out a case to interfere with the order impugned. Accordingly, I pass the following:

The writ petition is disposed of.

The trial Court is directed to dispose of the suit as expeditiously as possible being uninfluenced by any of the observations made by the lower Appellate Court or this Court while disposing of the application.