K. Kavitha vs Udaya

Aravind Kumar, J.—This is a defendant''s appeal against order passed by City Civil and Sessions Judge, Bangalore dated 16.07.2014 in O.S. 3621/2014 whereunder application filed by plaintiff under Order XXXIX Rule 1 and 2 of C.P.C. seeking for an order of temporary injunction to restrain the defendant from interfering with her peaceful possession and enjoyment of the suit property came to be allowed.

I have heard the arguments of Sri. S.G. Prabhakar, learned counsel appearing for appellant-defendant and Sri. Nagaraja C., learned counsel appearing for respondent-plaintiff. Perused the order in question as also documents and pleadings made available by learned advocates during the course of arguments.

Plaintiff claiming to have been put in possession of suit schedule property by virtue of General Power of Attorney executed by one Sri. Muniswamappa on 02.03.1990 and also by virtue of declaratory affidavit executed by said Sri. Muniswamappa and contending that said Sri. Muniswamappa had sold the property in favour of plaintiff, a suit for perpetual injunction came to be filed against the defendant on the ground that defendant is attempting to interfere with her peaceful possession and enjoyment of the suit property. An application seeking temporary injunction against defendant from interfering with plaintiff''s possession and enjoyment of suit schedule property also came to be filed. Said application was resisted by defendant by filing detailed objections contending inter alia that suit property amongst other properties belonging to Sri. Muniswamappa had been bequeathed by him in favour of his son Sri. Krishnappa by executing a Will dated 29.03.1993 and said Will had been duly registered in the office of Sub-Registrar and said Sri. M. Krishnappa in turn executed a gift deed in favour of his daughter i.e., defendant on 07.02.2014 pursuant to which khatha came to be mutated and connection for water supply also came to be obtained which would indicate that defendant is in possession and enjoyment of suit schedule property and as such temporary injunction sought for should be refused. Trial court after considering the pleadings of the parties, documents produced and on evaluation of evidence formulated following points for its determination:

"1. Whether the plaintiff has made out prima facie case for grant of temporary injunction against defendant as prayed in I.A. No. 2?

Whether the balance of convenience lies in favour of the plaintiff?

Whether greater hardship causes to plaintiff if temporary injunction is not granted?

Whether the defendant has made out good and substantial grounds for vacating the exparte order temporary injunction granted on 14.05.2014, by allowing I.A. 3?

What order?"

After considering rival contentions, trial court by order dated 16.07.2014 has granted an order of temporary injunction in favour of plaintiff which is assailed in the present appeal by defendant.

It is the contention of Sri. S.G. Prabhakar, learned counsel appearing for appellant-defendant that learned trial Judge misdirected himself in arriving at a conclusion that there has been an agreement of sale in favour of plaintiff which was factually not so and it is on this premise it has proceeded to grant an order of temporary injunction in favour of plaintiff and as such material illegality is committed by trial Judge calling for interference at the hands of appellate court. He would elaborate his submission by contending that when defendant has seriously disputed the very execution of General Power of attorney as well as affidavit propounded by plaintiff said documents could not have swayed in the mind of trial court to grant temporary injunction in favour of plaintiff. He would also contend that on the contrary defendant had produced sufficient material to establish that she had been put in possession of suit schedule property and enjoying the same and non consideration of these material documents by trial Judge in proper perspective has resulted in erroneous order being passed.

Per contra Sri. Nagaraja C., learned counsel appearing for plaintiff-respondent supporting the order of trial court would contend that documents produced by plaintiff namely power of attorney as well as affidavit executed by Sri. Muniswamappa coupled with khatha extract issued in the name of plaintiff''s husband as well as in plaintiff''s name would clearly establish that prima facie plaintiff is in possession of suit schedule property and on the other hand the title to the suit schedule property claimed by defendant is shrouded with cloud and this defence is to be examined after trial and as such order of temporary injunction granted in favour of plaintiff by trial court to be affirmed and appeal filed by defendant to be dismissed.

Having heard the learned advocates appearing for the parties and on perusal of the pleadings and documents produced before trial court which has also been examined by this court, following points would arise for my consideration:

"1. Whether order passed by trial court granting an order of temporary injunction is to be set aside or affirmed?

What order?"

POINT NO. 1:

It is not in dispute that property bearing Sy. No. 99/4 originally belonged to Sri. Muniswamappa. It is also not in dispute that during his life time he had formed sites in the said land. Plaintiff claim that one such site bearing No. 23 which is the suit schedule property has been conveyed to her by said Sri. Muniswamappa through execution of general power of attorney and an affidavit on 02.03.1990. Plaintiff contended that entire sale consideration had been received by said Sri. Muniswamappa and he had put plaintiff in possession and enjoyment of suit schedule property under these two documents. Said document was produced before the trial court which is also made available before this court and on perusal of the same it would indicate that signatory to the said document is one Sri. Muniswamappa. It is also required to be noticed at this juncture itself that witnesses who have attested the said document are Sri. M. Krishnappa and Sri. M. Vasudev Reddy. They are none other than sons of Sri. Muniswamappa. It is pursuant to said execution of power of attorney coupled with affidavit affirming that he has sold said property in favour of plaintiff by receiving a valuable consideration of ` 20,000/- said Sri. Muniswamappa has delivered possession of suit schedule property in favour of plaintiff. In the light of recital found in these documents trial court has held that there is prima facie case in favour of plaintiff. The very execution of the said power of attorney is seriously disputed by the defendant. Defendant is the daughter of Sri. M. Krishnappa who is said to have signed as witness in the general power of attorney executed by his father Sri. Muniswamappa in favour of plaintiff herein. Defendant is claiming right, title and interest in respect of the suit schedule property namely site No. 23 by virtue of Gift Deed executed by her father Sri. M. Krishnappa on 07.02.2014. Hence, it would be necessary to compare the signature found on general power of attorney as well as gift deed under which defendant has received the property as a Donee and when the signatures of Sri. M. Krishnappa found in these two documents are compared in exercise of power vested in this court under section 73 of Indian Evidence Act, 1872 it would prima facie indicate that signatures are one and the same. Hence, order passed by trial court granting an order of temporary injunction in favour of plaintiff cannot be found fault with and trial court has rightly undertaken the exercise of considering as to whether the plaintiff has satisfied necessary three ingredients for grant of injunction namely prima facie case, balance of convenience and irreparable loss and injury and found the answer is in affirmative which cannot be disturbed at this stage. As noticed herein above prima facie plaintiff has established that she has been put in possession of suit schedule property under the two documents above referred to and pursuant to same she sold it in favour of her husband and on his demise she has inherited the same by succession along with her children and has now got the khatha of suit schedule property transferred to her name. However, it is made clear that no opinion is expressed in respect of sale deed executed by plaintiff in favour of her husband on 16.12.2004 by virtue of general power of attorney dated 02.03.1990. Khatha has stood in the name of plaintiff''s husband and also in the name of plaintiff as evidenced from the khatha extracts issued by Bruhat Bangalore Mahanagara Palike. Thus entries found in the khatha extract would prima facie indicate that plaintiff has been in possession of suit schedule property and balance of convenience is in favour of plaintiff and hence if an order of temporary injunction is refused it is plaintiff who would be put to irreparable loss and injury and not the defendant. Infact defendant also does not have any equities in her favour and defendant would not suffer any irreparable loss and injury if an order of injunction is granted in favour of plaintiff. Hence, I do not find any infirmity in the order passed by trial court. Order of injunction granted in favour of plaintiff by trial court is hereby affirmed. Appeal stands dismissed. However observation made by trial court as well as this court is for the limited purpose of considering the application for temporary injunction only and trial court would be at liberty to adjudicate the suit on merits without being influenced by any observations made in this regard.