Godawwa and Others vs Purandhar

Aravind Kumar, J.—Defendants 1 to 3 in O.S. No. 25/2014 being aggrieved by order passed by the trial Court granting an order of temporary injunction in favour of the plaintiff by allowing IA-II vide order dated 30.04.2014 which order has been confirmed by the lower appellate court on 31.01.2015 in M.A. No. 7/2014 Annexure-E has been called in question.

Parties are referred as per the rank in the trial court.

Plaintiff is the son of 1st defendant and brother of defendants 2 and 3. He has filed the suit O.S. No. 25/2014 (old No. 102/2013) seeking judgment and decree of perpetual injunction in respect of property bearing No. 11/4R1 i.e., 11/4B measuring 3 acres and Sy. No. 11/4C measuring 4 acres 4 guntas situated at Khanadal village, Raibag taluk, Belgaum district, contending interalia that it is his self-acquired property and he has purchased the same under the sale deed dated 07.06.1990. In aid of the main relief, he filed an application under Order XXXIX Rules 1 and 2 of the CPC for temporary injunction. Defendants on service of suit summons, appeared, filed their written statement and denied the averments made in the plaint and contended interalia that they have already filed suit for partition and separate possession in respect of the joint family properties in O.S. No. 52/2012 before the Prl. Civil Judge,(Sr.Dn.), Raibag, and in the said suit, plaintiff in O.S. No. 25/2014 has been arrayed as 1st defendant and same is being adjudicated and as such, there cannot be any order of temporary injunction issued against a co-parcener or a joint family member and hence, they prayed for dismissal of the application. Pleas advanced in the written statement was adopted as objections to application for temporary injunction. Trial Court after considering the rival contentions has found three ingredients for grant of an order of temporary injunction was in favour of the plaintiff namely prima facie case, balance of convenience and irreparable loss and injury were in favour of the plaintiff and as such, had allowed the application and granted an order of temporary injunction restraining the defendants from interfering with his possession and enjoyment of suit schedule property.

Being aggrieved by this order, defendants filed an appeal in M.A. No. 7/2014 and lower appellate court after considering the arguments advanced by respective learned advocates and on appreciation of facts and on re-appreciation of material documents relied upon by both the parties found that there is no infirmity in the order passed by trial Court and held that plaintiff is in possession of the suit properties as on date of suit by virtue of absolute sale deed in his favour and RTC extracts produced by him would also evidence that plaintiff is in exclusive possession and enjoyment of the suit schedule property and as such, it rejected the claim of the appellants namely the defendants and thereby affirmed the order passed by the trial Court. It is these two orders which are impugned in the present writ petitions.

It is the contention of Mr. Ramachandra Mali, learned counsel appearing for the petitioners that courts below ignored the fact that when the same plaintiff who has appeared as 1st defendant in the suit for partition i.e., O.S. No. 52/2012 and had sought for an injunction against the plaintiff which had been negatived by the trial court, would itself be a ground for rejection of his prayer for grant of temporary injunction in O.S. No. 25/2014 and non-consideration of this vital aspect has resulted in an erroneous order being passed. Hence, he seeks for allowing the writ petition and for quashing of the impugned order. He would also contend that a member of the joint family cannot be prevented from enjoying the properties belonging to joint family and person who asserts that a property is his self acquisition, he has to prove the same after trial and till then, parties to the suit who are claiming that suit schedule property is a joint family property should not be prevented from enjoying the same by an order of temporary injunction. He would also rely upon the judgment of Hon''ble Apex Court in the case of V.K. Surendra Vs. V.K. Thimmaiah and Others, in support of his arguments.

Having heard the learned counsel appearing for petitioners/defendants and on perusal of the orders passed by the trial Court which has been affirmed by the lower appellate court as per Annexure-D and Annexure-E respectively, this Court is of the considered view that plaintiff has satisfied all the three ingredients for grant of an order of temporary injunction in his favour namely prima facie case, balance of convenience and irreparable loss and injury that would be caused to him if said prayer is refused. Undisputedly, suit schedule properties have been purchased by the plaintiff under a registered sale deed dated 07.06.1990. Pursuant to the said sale deeds, he got the revenue records mutated to his name and RTC extract indicate that the suit properties are standing in his name and as recorded by the courts below column No. 12 (2) would indicate that he is in possession and enjoyment of the property. Thus, a presumption arises under Section 133 of the Karnataka Land Revenue Act with regard the entries found in the RTC extracts which are presumed to be true. It is no doubt true that, it is a rebuttal presumption and it is for the defendants to establish by tendering rebuttal evidence to prove as to how the contents of entries found in RTC extract relating to the suit schedule property is not a true entry. It is because of this precise reason trial Court has recorded a finding to the following effect:

"8. Further, Order 39 Rule 1 of C.P.C. authorizes the issue xxx xxx xxx it will result irreparable injury and sustain loss. Keeping in view of the above settle principles it is admitted fact that, plaintiff purchased the suit properties in the year 1990 and he has continued in possession and growing sugarcane crops without any disturbance or obstruction from the defendants till filing of the suit. The sale-deed and R.T.C. extract along with other materials available on record including tax paid receipts reveals that the plaintiff is in possession of the suit properties on the date of suit. On the other hand, the defendants have not produced to show their possession over the suit property, but those documents relied by the defendant''s viz., electricity bills not shown the survey numbers."

(Emphasis supplied)

Trial Court has also found that joint vardi said to have been given by plaintiff and defendants relates to the joint family properties which was said to be standing in the name of deceased father of the plaintiff and defendants 2 and 3 in the year 2001. In fact, in the affidavit filed before the revenue authorities for mutating the revenue records, the suit schedule property has not been included in the list of properties said to be belonging to the joint family. This fact would also fortify the claim of plaintiff. Hence, on these grounds, trial Court has rightly allowed the application filed by the plaintiff for temporary injunction and said order came to be examined by the lower appellate court and it has found that there is no material irregularity committed by the trial Court to upset the findings recorded by the trial Court. Hence, there is no infirmity committed by the courts below.

It is no doubt true that defendants 2 and 3 have filed a suit for partition against present plaintiff and others in O.S. No. 52/2012. In the said suit, defendants having appeared, had filed an application for temporary injunction to restrain the plaintiff from revenue authorities mutating the revenue records in favour of the plaintiff therein exclusively and said application having been rejected would not be a ground available to the defendants herein to contend that in view of the order passed in O.S. No. 52/2012 rejecting the claim of 1st defendant therein i.e., plaintiff herein would be a ground which disentitles the plaintiff to seek relief of temporary injunction in aid of main relief. As already noticed hereinabove and at the cost of repetition, it requires to be noticed that courts below have recorded a categorical and clear finding that suit schedule property is the self-acquired property of the plaintiff as evidenced from the sale deed dated 07.06.1990 which is prima facie sufficient to arrive at such conclusion. In that view of the matter, I do not find any merit in this petition for being entertained.

However, it is necessary to observe that the mother of the plaintiff Smt. Godawwa-1st defendant, is said to be residing along with the plaintiff and also another son who is said to be mentally retarded. As such, this Court is of the considered view that good sense will prevail upon the plaintiff in not displacing his own mother and brother from the house, since they are said to be residing therein along with the plaintiff. It is also needless to state that observation made by the Courts below and this Court is limited for the purposes of disposing of IA-II (application filed under Order XXXIX Rules 1 and 2 of the CPC) only and trial Court without being influenced by any such observations shall proceed to adjudicate the suit on merits and in accordance with law. Hence, the following:

ORDER

Writ petition is hereby dismissed subject to the observations made hereinabove.

Ordered accordingly.