Ittina Properties Private Limited vs M. Srinivas

B.S. Patil, J—Plaintiff in O.S. No. 9443/2013 has filed this appeal challenging the order dated 22.6.2015 passed by the court below rejecting the application filed by him under Order 39 Rule 1 and 2 of CPC.

Plaintiff is a private Limited Co., incorporated under the provisions of Indian Companies Act 1956. It has filed a suit seeking decree of perpetual injunction restraining the defendant or any other person claiming under him from interfering, taking forcible possession of plaintiff''s lawful possession over the property and also from dismantling or removing the compound wall with its gate provided to the property. Along with the plaint, an application seeking temporary injunction to restrain defendant from interfering or taking physical possession of plaintiff''s lawful possession of the suit property, was filed. The application was resisted. The court below has dismissed the application. Hence, present Miscellaneous First appeal has been filed.

I have heard learned counsel for both parties. I find from the plaint averments and prima facie finding recorded by the court below that plaintiff has purchased the suit schedule property under a registered sale deed dated 31.5.2006 executed by the defendant. Sale consideration therein has been shown as Rs. 1,25,77,000/-. The said sale consideration is shown to have been paid by way of cheques. Plaintiff claims that he has been put in possession of the property on the date of execution of the registered sale deed. Documents have been produced by the plaintiff to show that khata has been made over in the name of plaintiff and tax assessed on the property has been paid by it. Allegations of the plaintiff are that, there was attempted interference and dispossession of plaintiff from the suit property by defendant and therefore, plaintiff was constrained to file this suit.

Defence of the defendant discloses that, though execution of the sale deed is not denied, but, receipt of consideration of Rs. 1,25,77,000/- has been denied. According to defendant, plaintiff had assured him that they would pay money in a sum of Rs. 2,00,00,000/- after the litigations regarding the property had been completed and that defendant being innocent, believing the representations made by the plaintiff, entered into an agreement during the year 2003 by receiving only a sum of Rs. 20,00,000/- as advance. It is further contended that having full faith in the plaintiff, he was induced to sign the pleadings in support of plaintiff''s Company and induced to execute the sale deed. It is also contended that possession of the property remained with defendant.

Court below has considered the respective pleadings and has come to the conclusion that there was a suit filed in O.S. No. 3396/2010 by one Hemavathi claiming to be owner of the suit property arraying plaintiff herein as defendant No. 12 and defendant herein as defendant No. 7; in the said suit, an order of temporary injunction has been granted against both plaintiff and defendant herein, which fact plaintiff suppressed while filing the suit, therefore, plaintiff was not entitled for grant of temporary injunction. Court below has also taken note of the fact that several litigations have been pending in respect of suit property and therefore, grant of temporary injunction in favour of plaintiff was not warranted in the facts and circumstances of the case.

In the light of these findings and the facts and circumstances of the case, upon hearing learned counsel for both parties, I find that as rightly contended by learned counsel for plaintiff/appellant, the order of temporary injunction granted in O.S. No. 3396/2010 was to restrain defendant and plaintiff herein from alienating or creating any charge over the property. The said order of temporary injunction has nothing to do with actual possession and enjoyment of the property. In the present case, suit for injunction has been filed by the plaintiff-Company based on its title traceable to registered deed dated 31.5.2006. Sale deed recites payment of sale consideration of Rs. 1,25,77,000/- and covenants that plaintiff shall be entitled to enjoy the property peacefully. Defendant has taken up the contention that entire sale consideration has not been paid to him and that his signatures to the sale deed have been obtained misusing the trust and confidence reposed by defendant in the plaintiff.

It is not in dispute that khata of the property stands in the name of plaintiff and plaintiff has been paying tax. It is also necessary to note here that defendant has filed one more suit in O.S. No. 25331/2015 challenging the sale deed alleging that sale deed was obtained by fraud etc. In the circumstances, what all can be said is that there is a claim and counter claim by the plaintiff and defendant over the suit property. Defendant is trying to resile from the sale deed contending that the sale consideration has not been paid; whereas plaintiff relies on the registered sale deed and khata entered in his name and also document showing that he has paid tax assessed on the property. In such circumstances, court below was not right and justified in rejecting the application filed by the plaintiff. It ought to have directed the parties to maintain status-quo with regard to possession and nature of the property particularly because plaintiff has placed reliance on a registered sale deed.

In such circumstances, keeping in mind ends of justice, appeal is partly allowed. Both parties are directed to maintain status quo with regard to possession and nature of the property till disposal of the suit.