Canary Projects and Others vs Manjunath Reddy and Others

B.S. Patil, J.—These three appeals arise out of common order passed on I.A. Nos. 1, 7 and 8. I.A. Nos. 1 & 7 are filed by the plaintiff under Order XXXIX Rules 1 & 2 CPC seeking temporary injunction restraining the defendants from alienating the property and putting up any construction over the same. I.A. No. 8 was filed by defendant No. 16/appellant herein under Order XXXIX Rule 4 CPC seeking to vacate the ex-parte order of temporary injunction granted. The Court below allowed I.A. Nos. 1 & 7 and dismissed I.A. No. 8. Aggrieved by the same, defendant No. 16 has filed these appeals.

As common questions arise for consideration in these appeals, they are clubbed, heard together and are disposed of by this common judgment.

Defendant No. 16 in O.S. No. 328/2012 has filed this Miscellaneous First Appeal challenging the order dated 31.07.2015 passed by the Court below granting an order of temporary injunction restraining him from alienating the suit schedule property and putting up any construction over the same during the pendency of the suit.

Plaintiff - respondent No. 1 herein has filed the suit seeking declaration of his title and possession over the suit schedule property. He has also sought for a declaration that the Sale Deed dated 15.06.1984 executed by one Muniyellapa @ Yellappa in favour of defendant No. 2 as illegal and void; that the Sale Deed dated 01.12.1993 executed by defendant Nos. 2 to 5 in favour of defendant No. 6 as not binding on the plaintiffs and that the Sale Deed dated 10.03.2006 executed by defendant Nos. 6 to 9 in favour of defendants 10 & 11 as not binding on the plaintiffs. Relief of permanent injunction to restrain defendants from interfering with plaintiff''s peaceful possession and enjoyment of the suit schedule property was also sought and in the alternative, if the plaintiff failed to establish his possession, a decree of possession has been sought.

The suit schedule property is described as property bearing Sy. No. 90/A, New No. 90, measuring 30 guntas including 2 guntas karab situated at Dommasandra Village, Bidarahalli Hobli, Bengaluru East Taluk. According to the plaintiff, the suit property was a Jodi Inam land. One Hanumanthappa was cultivating it as tenant under the Jodidar. The same was granted in favour of Hanumanthappa in the year 1962. Hanumanthappa died leaving behind his son Muniyellapa @ Yellappa. Muniyellappa sold the property in favour one Munishamappa, son of Peddanna by registered Sale Deed dated 10.07.1968. The purchaser was put in possession of the property. He was personally cultivating the land as absolute owner. Because he was an illiterate person, he did not obtain khatha in his favour. His name was also not mutated in the revenue record. The said Munishamappa died intestate on 06.11.1977 leaving behind his brother Channappa. As Munishamappa did not have any issue, nor any other heirs, Channappa succeeded to the estate. The said Channappa also died on 04.07.1999 leaving behind the plaintiff to succeed to his estate and thus, plaintiff acquired absolute right, title and possession over the suit schedule property. It is further urged by the plaintiff that when things stood thus Muniyellapa @ Yellappa by colluding with revenue officers had obtained illegal revenue entries in his name, though he had lost interest in the property after executing the registered Sale Deed on 10.07.1968 in favour of Munishamappa. Taking advantage of the revenue entries, he created a Sale Deed dated 15.06.1984 in favour of defendant No. 2. The said Sale Deed was illegal and void. On the basis of the Sale Deed of the year 1984, defendant No. 2 did not acquire any right. Defendants 2 to 5 taking advantage of the illegal Sale Deed secured the revenue entries in their name and sold the property in favour of defendant No. 6 as per Sale Deed dated 01.12.1993. Defendants 6 to 9 taking advantage of the frivolous entries secured in their favour sold the property in favour of defendants 10 & 11 through Sale Deed dated 10.03.2006. Subsequently, defendants 10 & 11 sold a portion of the property in favour of defendants 12 & 13 through registered Sale Deed dated 02.09.2010. It is relevant to notice that defendant No. 16 has purchased the very same property as per Sale Deed dated 12.03.2014 from defendants 12 & 13.

Alleging that defendants 10 to 13 were making attempt to interfere with the plaintiff''s possession and that having come to know that khatha of the land had not been transferred in the name of Munishamappa after he purchased the property, plaintiff claimed to have approached the revenue authority and also the local police. Thus, the suit came to be instituted contending that cause of action arose on 09.02.2012, when the defendants tried to put up compound wall by interfering with plaintiff''s possession.

Proposed defendant No. 16/appellant herein was sought to be brought on record by making an application dated 22.04.2014 as he had purchased the very same property on 12.03.2014.

Application seeking temporary injunction was filed on 22.04.2014 reiterating the averments made in the plaint. The Trial Court vide order dated 31.07.2015 has allowed the said application. Application filed by defendant No. 16 for vacating the ex-parte order of temporary injunction has been dismissed. Aggrieved by the said order, defendant No. 16 has filed these appeals.

I have heard Sri G. Krishna Murthy, learned Senior Counsel appearing for the appellant/defendant No. 16 and Sri Jayakumar S. Patil, learned Senior Counsel for the plaintiff/respondent No. 1.

The main contention of the counsel for the appellant is that the Trial Court has seriously erred in not considering the fact that as back as on 15.06.1984, defendant No. 2 came in possession of the property under a registered Sale Deed and from that day onwards the property was dealt with and enjoyed by Savithramma, till she sold the property along with her husband and children on 01.12.1993 in favour of defendant No. 6 and thereafter, defendant No. 6 enjoyed the property till 10.3.2006 until it was sold to defendants 10 & 11; again defendants 10 & 11 enjoyed the property, got the same converted vide order dated 11.12.2009 and sold an extent of 17037 sq. ft. out of 30 guntas in favour of defendants 12 & 13 on 02.09.2010 and thereafter, from defendants 12 & 13, defendant No. 16 purchased the same on 12.03.2014. It is his submission that even prior to 1984, possession and enjoyment of the property was with Muniyellappa from 1968 till 1984. He urges that though it was strongly contended that Muniyellappa was not known as Yellappa and the Sale Deed said to have been executed by Muniyellappa on 10.07.1968 in favour of Munishamappa was denied and in any event, it was asserted that it was not at all acted upon, the Court below did not apply its mind to the said fact.

He has further contended that after the death of Munishamappa on 06.11.1977, Channappa did not succeed to the property as sole heir because Munishamappa had left behind his widow and Channappa had another brother by name Yerappa, hence, Channappa was not the sole surviving heir and was not the sole successor of Munishamappa to enable the plaintiff to succeed to his estate.

Sri Krishnamurthy, learned Senior Counsel appearing for the appellant invites the attention of the Court to the partition deed dated 22.03.1990 entered into between the wife of Munishamappa, Channappa and Yerappa - brothers of Munishamappa, wherein the land in question has not been included as one of the subject matter of partition. On the strength of this document, it is contended, that had the land been indeed purchased by Munishamappa and Munishamappa had really acquired title and possession over the same, the said land would have been shown as one of the lands as subject matter of partition dated 22.03.1990. It is urged by him that plaintiff has deliberately suppressed the existence of Muniyamma, W/o. Munishamappa and has incorrectly asserted that Munishamappa left behind only Channappa, his brother as the sole surviving successor. He also points out that at no point of time, name of Munishamappa was entered in the revenue records and after his death, the property was never shown in the names of any of the so-called successors of Munishamappa. It is also contended by him that plaintiff''s claim that he was the only successor of Channappa to inherit the property was patently false because in the suit filed in O.S. No. 2195/2006, plaintiff therein Ashwathamma has claimed that late Channappa had left behind herself and defendants 2 to 5 therein and husband of 1st defendant. The present plaintiff in this suit is arrayed as 5th defendant in the said suit. Therefore, he has urged that even the assertion made by the plaintiff that he is the sole survivor upon the death of Channappa is apparently false. He has also contended that the two sale deeds dated 02.09.2010 executed in favour of defendants 11, 12, 14 & 15 have not been challenged in the suit now filed. It is urged by him that the court below has not taken note of the conduct of the plaintiff in approaching the Court in the year 2012 assailing the sale deed executed in the year 1984.

Learned Senior Counsel Sri Jayakumar S. Patil appearing for the plaintiff/respondent No. 1 has principally pointed out that appellant/defendant No. 16 has purchased the litigation, inasmuch as after the present suit was instituted, he has purchased the property knowing fully well that plaintiff had laid a claim over the property. He emphasizes that fact that defendant No. 16 is a purchaser pendente lite disentitles him from making any grievance about the order of temporary injunction granted in favour of the plaintiff.

Insofar as alternative relief of possession sought by the plaintiff, he contends that such a relief is permissible in law. It is also contended by him that there was no need for the plaintiff to disclose the existence of his mother or sisters in the present suit. Reliance is placed by him on the judgment in the case of Julien Educational Trust Vs. Sourendra Kumar Roy and Others, to urge that when prima facie case has been made out by the plaintiff, the matter has to go for evidence and in the meanwhile, if the suit property is allowed to be commercially exploited by raising structures, the entire object of the suit would be defeated, and therefore, it was a fit case for grant of temporary injunction and the court below has rightly granted the order of temporary injunction.

In the light of the respective contentions urged, the points that arise for consideration are:

1) Whether the Trial Court has committed any illegality in recording a finding that prima facie case has been made out by the plaintiff for grant of temporary injunction to restrain the defendants from alienating the suit property and from putting up any construction over the suit property?

2) Whether the order under challenge deserves to be interfered with? If so, what is the order that is required to be passed in the facts and circumstances of the case?

It is not in dispute that from 1968 onwards, the revenue records in respect of the land in question do not stand in the name of the predecessors-in-title of the plaintiff. Though plaintiff has asserted in the plaint that Muniyellappa @ Yellappa being the absolute owner of the property sold the same in favour of Munishammappa, S/o. Peddanna as per registered Sale Deed dated 10.07.1968, copy of which has been enclosed to the plaint, it is undisputed that name of Munishamappa - purchaser was not entered in the revenue records. The assertion of the plaintiff that Munishamappa was personally cultivating the schedule property till he died on 06.11.1977 is not at all probablized by any documents produced by the plaintiff. From 1968 to 1977, there is nothing to show that Munishamappa had asserted his right over the property. After his death, it is urged that Channappa succeeded to the property of Munishamappa being his brother and it was Channappa who continued in possession and upon the death of Channappa, plaintiff being his son succeeded to his estate. Neither the name of Channappa, nor the name of the plaintiff is recorded in the revenue records to probablize this assertion of the plaintiff.

At this stage, it is relevant to notice that Munishamappa had left behind his wife Muniyamma and another brother by name Yerappa. If Munishamappa died intestate, as urged by the plaintiff, then the suit property ought to have been succeeded to by his wife Muniyamma and if it was a joint family property, his brothers Channappa and Yerappa would have also got rights and not Channappa exclusively.

Apart from the same, fact remains that as per the version of the defendants, the property had been sold by Muniyellappa in favour of defendant No. 2 - Savithramma on 15.06.1984. A copy of the said registered sale deed has been produced by the defendants in this regard. The contention of the plaintiff is that this sale deed is executed by the very same Muniyellappa @ Yellappa, after he sold the property on 10.07.1968 to Munishamappa and therefore, the said Sale Deed dated 15.06.1984 cannot have the effect of transferring title over the property to defendant No. 2 - Savithramma. If that was so, why Munishamappa kept quiet for 9 years from 1968 till he died on 06.11.1977 without asserting his rights over the land is not forthcoming. The only explanation offered is that Munishamappa was illiterate and therefore, he did not secure revenue entries in his name. This explanation is sought to be offered by filing the suit in the year 2012. It is not only Munishamappa, who has kept quiet, even his successors namely his widow and other brothers including Channappa, father of the present plaintiff have kept quiet till 2012. They have been mute spectators to the land changing hands from Muniyellappa to defendant No. 2 vide registered Sale Deed dated 15.06.1984, from defendants 2 to 5 in favour of defendant No. 6 vide registered Sale Deed dated 01.12.1993; from defendant Nos. 6 to 9 in favour of defendants 10 and 11 vide registered Sale Deed dated 10.03.2006; defendants 10 and 11 who got converted the land on 11.12.2009 sold major portion of the same on 02.09.2010 in favour of defendants 12 and 13 and that after lapse of nearly 44 years from the date Munishamappa allegedly purchased the property in the year 1968 and after two generations passed away, the plaintiff claiming to be the grandson of Munishamappa has instituted the suit urging that the Sale Deed of the year 1984 and the subsequent successive Sale Deeds were not binding on him and that he has been in possession of the property.

The Trial Court, without appreciating this conduct of the plaintiff and the lapse on his part in approaching the court and without applying its mind to the continuous enjoyment of the rights by the defendants over the property by virtue of registered Sale Deeds, has come to the conclusion that prima facie case had been made out by the plaintiff. These findings are totally illegal and contrary to the documents on record.

The fact of purchase of the suit property by defendant No. 16 during the pendency of the suit does not make out a prima facie case in favour of the plaintiff. Independently of the same, plaintiff has to make out a prima facie case. A purchaser pendente lite will be bound by the decree to be passed and his rights will be subject to the decree in the pending suit. It cannot be said that he cannot have any say in the matter and a purchaser cannot be prevented from developing the property by putting up construction. In such circumstances, when the plaintiff has not made out a prima facie case, no irreparable injury would be caused to the plaintiff.

Facts and circumstances narrated above disentitle the plaintiff from seeking the equitable relief of temporary injunction. Defendant No. 16/appellant herein is bound by the principles of lis pendens. Any development he makes over the property will be subject to the result of the suit. Any further alienation would be governed by the principle of lis pendens. As no prima facie case has been made out and as balance of convenience does not lie in favour of the plaintiff and indeed lies in favour of the defendants and no irreparable injury would be caused to the plaintiff who has kept quiet for the last 44 years from asserting his right over the property, the Court below ought to have dismissed the application. Findings recorded by the Court below being illegal are, therefore, liable to be interfered with. Accordingly, the points raised for consideration are answered in favour of defendant No. 16/appellant and against the plaintiff-respondent No. 1. Judgment relied on by the learned Senior Counsel Sri Jayakumar S. Patil in the case of Julien Educational Trust Vs. Sourendra Kumar Roy and Others, has no application to the facts of the present case.

In the result and for the foregoing reasons, these appeals are allowed. Order under challenge is set aside. It is made clear that any alienation of the suit property made or to be made during the pendency of the suit would be governed by the principles of lis pendens and for any improvement/development including construction over the suit property, defendant No. 16/appellant herein will not be entitled to plead any equity.