Krishnappa and Others vs Krishna E. Campus Pvt. Ltd. and Others

B.S. Patil, J.—This appeal is directed against the order dated 05.02.2013 passed by the trial Judge in O.S. No. 8793/2005 on I.A. Nos. 11 and 13. Both these applications were filed by defendant Nos. 1 and 2 - appellants herein. I.A. 11 was filed under Order XXXIX Rules 1 and 2 of CPC seeking an order of temporary injunction to restrain the plaintiff as well as defendants 3 and 4 from carrying on any excavation work or putting up any construction over the suit schedule property during the pendency of the suit. I.A. 13 was filed under Order XXXIX Rule 4 of CPC seeking to vacate the ad-interim order of temporary injunction granted on 09.03.2006 wherein defendants 1 and 2 were restrained from interfering with the possession of the plaintiff.

Initially, plaintiff filed the suit seeking a decree of permanent injunction in respect of the suit schedule property only against defendants 1 and 2. Later on, defendants 3 and 4 have been impleaded and additional relief was sought for declaration that sale deed dated 08.08.2003 executed by Smt. Gowramma and Muniyappa in favour of 2nd defendant-appellant No. 2 herein and the sale deed dated 25.08.2003 executed by Marappa in favour of N. Krishnappa - appellant No. 1 herein were not valid and legal and hence, not binding on the plaintiff.

It is necessary to notice certain facts as are discernable from the findings recorded by the trial Court and the pleadings on record. The plaintiff claims title to the property by virtue of a registered sale deed dated 20.10.2003. This sale deed is executed pursuant to the registered agreement of sale dated 07.01.1991 executed by the erstwhile owners of the property - Smt. Gowramma, Muniyppa and Marappa. The erstwhile owners of the property are the common vendors of the present plaintiff and also defendants 1 and 2.

Indeed, the sale deeds in favour of defendants 1 and 2 are prior in point of time and that they were executed on 08.08.2003 in favour of defendant No. 2 and on 25.08.2003 in favour of defendant No. 1. It is in this background, defendants 1 and 2 are contending that they have been put in possession of the property and have become absolute owners thereof before the erstwhile owners executed the second set of sale deeds in favour of the plaintiff.

It is further contended by the learned counsel appearing for the appellants that in the registered agreement of sale executed on 07.01.1991 in favour of the plaintiff by the erstwhile owners, there is a recital to the effect that possession was retained by the erstwhile owners and the same would be handed over to the plaintiff on the date of registration of the sale deed.

The Trial Court has rejected the applications filed by defendants 1 and 2 on the ground that execution of sale deeds dated 08.08.2003 and 25.08.2003 by Marappa, Gowramma and Muniyappa was disputed and denied by the erstwhile owners; therefore, the genuineness of the said documents was required to be examined at the stage of trial. It has further held that revenue documents recording the khata in the name of defendants 1 and 2 could not therefore be independently regarded as material that would constitute basis for grant of temporary injunction as sought for by defendants 1 and 2.

It is also noticed by the trial Court that the erstwhile owner - Marappa has filed O.S. No. 9300/2006 against the 1st defendant among others seeking declaration of his title over 10 guntas of land in the suit schedule property. Another suit in O.S. No. 7606/2008 has been filed by Gowramma - erstwhile owner seeking a similar relief in respect of the other portion of 20 guntas. Indeed, all these three suits are clubbed and are being tried together because the subject matter of the suits is common in all these cases.

The Trial Court has therefore come to the conclusion that pending decision regarding the genuineness of the sale deeds in favour of defendants 1 and 2, an order of temporary injunction as sought in I.A. 11 could not be granted. On the same process of reasoning, the trial Court has dismissed the prayer made in I.A. 13 to vacate the temporary injunction granted in favour of the plaintiff. The trial Court has further observed in support of its conclusion that plaintiff would be put to irreparable injury, if the temporary injunction granted were to be vacated and if he was prevented from enjoying the property. While passing such an order the Trial Court has taken care to observe as under:

"However, the injunction in favour of the plaintiff should not be a blanket injunction, it should be subject to the conditions. In the facts and circumstances of the case, I am of the considered opinion that the plaintiff shall given an undertaking that he would pay full restitution, mesne profit at market rate and actual costs in the event of dismissal of the suit. Further any transfer or alternation from today shall be subject to the final outcome of the suit".

This order has been in force since 05.02.2013 and indeed there was an ex-parte order of temporary injunction to that effect right form 09.03.2006. Therefore, although there is some substance in the contention of the appellants that the registered sale deeds in their favour were prior in point of time and that the Trial Court was not fully justified in ignoring such sale deeds merely because the erstwhile owners denied the execution of the said sale deeds, the fact remains that for the last several years temporary injunction has been operating against the defendants. The trial Court has kept in mind the equities and has imposed a condition that plaintiff cannot get away with a blanket injunction and has to give an undertaking that he would be liable for full restitution, mesne profits at market rate and actual costs in the event of dismissal of the suit.

The apprehension expressed at the bar by the learned counsel for the appellants that the appellants may not be restituted with the possession of the property is not justifiable. Once an undertaking is directed to be given by the plaintiff to make full restitution, it would include restitution of the possession apart from mesne profits and other costs that would be incurred by defendants/appellants herein in case the suit is dismissed.

Therefore, while declining to interfere with the order passed by the Trial Court, it is made clear that the direction issued by the Trial Court for full restitution includes restitution of possession, payment of mesne profits and actual costs in the event of dismissal of the suit in favour of defendants in the suit. Depending on the adjudication of the rights of the defendants interse, the restitution will have to be ordered by the Court below.

Therefore, subject to the clarification made above, this appeal is dismissed. As the suit is of the year 2005, the Trial Court is directed to dispose of the suit within a period of one year from today.