M.C. Smitha vs G. Srinivas

B.S. Patil, J—This appeal is directed against the order dated 27.04.2015 passed by the Court below allowing I.A. No. 1 filed by the plaintiff/respondent herein and granting an order of status-quo directing the parties to maintain status-quo in respect of suit schedule property, as it obtained on the date of order.

Appellant is the defendant in the suit. The said suit has been filed by the respondent seeking a decree of permanent injunction to restrain the defendant from interfering with the lawful and peaceful possession of plaintiff over the suit schedule property. The suit schedule property is described as property bearing No. 145 carved out of Sy. No. 120 (old No. 10), Kathriguppe Village, Uttarahalli Hobli, Srinivasanagar, Ward No. 54, Bengaluru South Taluk, measuring 40 x 45 feet consisting of 1 sqr. sheet house.

The case of the plaintiff has been that his father Sri Govindaswamy purchased the suit schedule property on 10.12.1997; after his death on 12.10.1999 plaintiff and his mother have been in possession of the property; on 19.12.2014 the defendant came to the spot and started creating nuisance asserting her title over the property. Therefore, the plaintiff was constrained to institute the suit. Along with the suit an application under Order 39 Rules 1 and 2 was filed seeking an order of temporary injunction. An ex-parte order of temporary injunction was granted in favour of plaintiff.

On receipt of suit summons and notice on interlocutory application, defendant appeared and resisted the suit contending inter alia that Bengaluru Development Authority (for short ''BDA'') had acquired lands comprised in Sy. Nos. 18 to 23, 25 to 28 and 30 to 32 and formed residential layout. Site No. 306, I Main Road, Ward No. 5, Srinivasanagar, was allotted to the father of defendant one Sri S. Chandra Mohan. A registered sale deed was executed on 26.12.1996 by the BDA in favour of defendant''s father. Khatha of the suit property was transferred in his name. Defendant''s father thereafter gifted the suit property to the appellant/defendant herein vide registered gift deed dated 01.12.2010. Thus, the defendant came in possession of the property and became the absolute owner of the same. It was contended by the defendant that khatha of the suit property was also transferred in her name and she has been paying the property tax.

The trial Court on consideration of the respective pleadings and the documents on record has held that from the documents produced by the defendant it was established that BDA had allotted site No. 306 to the father of defendant on 26.02.1996 and also issued possession certificate in respect of the said site; that the father of defendant was paying property tax and subsequently, gifted the property in favour of the defendant. However, the Court below by referring to the complaint lodged by the husband of defendant in Cr. No. 23/2015 under Section 447 of IPC registered against the plaintiff pending in C.C. No. 6602/2015 on the file of II Addl. CMM, Bengaluru and the correspondence made by the Police to the Assistant Revenue Officer, Basavanagudi has pointed out that letter dated 03.02.2015 issued by the Assistant Executive Engineer, No. 3, Sub-Division, BDA Complex, Banashankari 2nd stage, Bengaluru, clarifying that site No. 306, Banasankari 3rd stage, Kathriguppe, Ward No. 54, was not within their local limits and Sy. No. 10 was situated within the limits of their office and that site No. 306 as claimed by defendant was within the limits of Assistant Executive Engineer, No. 3, Sub Division, BDA Complex, Bengaluru. The Court below has come to the conclusion that there was dispute regarding identity and location of site No. 306.

In paragraph 17 of the judgment the trial Court has held that as per the map site No. 306 was formed within Sy. Nos. 18 to 23, 25 to 28 and 30 to 32 and that the said site was allotted by the BDA; the information furnished by the Assistant Revenue Officer to the police disclosed that the property as claimed by the defendant was formed in the said survey numbers, whereas particulars of site bearing PID No. 54-134-145 of plaintiff were not available with the Assistant Revenue Officer; the specific case of the plaintiff has been that old Sy. No. 10 and new Sy. No. 120 of the suit property was not acquired by the BDA and the father of plaintiff had purchased the suit property from the previous owner as revenue site. As per the finding of the Court below the matter presented confusion with regard to the identification of the suit property and also its actual ownership by either of the parties and the same could be unravelled after a full fledge trial and therefore, both parties were required to maintain status quo with regard to the suit property.

Learned counsel appearing for the appellant contends that when the Court below has come to a definite conclusion that plaintiff was not able to locate exactly the location of his property and if there was doubt with regard to possession and title of the plaintiff over the suit property it would mean that plaintiff failed to make out a prima facie case and hence question of granting an order of temporary injunction even by way of directing the parties to maintain status quo, would not arise. In support of his contention he has placed reliance on the judgment in the case of Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs. and Others, AIR 2008 SC 2033 : (2008) 3 CLT 23 : (2008) 4 SCALE 718 : (2008) 4 SCC 594 : (2008) AIRSCW 4959 . He has also contended that there cannot be any injunction against true owner. To support his contention he has placed reliance on the judgment of the Apex Court in the case of Premji Ratansey Shah and Others Vs. Union of India (UOI) and Others, (1994) 3 SCALE 562 : (1994) 5 SCC 547 : (1994) 2 SCR 117 Supp : (1991) 2 SCR 745 : (1994) 2 UJ 385 . Reliance is also placed on an unreported judgment in RSA No. 53/2012 disposed of on 07.11.2012 in support of the contention that when there is dispute regarding the identity of the property and its actual possession, injunction could not be granted.

Learned counsel appearing for respondent strongly supports the order passed by the Court below. He submits that both parties are directed to maintain status-quo till the actual controversy is resolved. He points out that as long as the judgment under challenge does not suffers from perversity, this Court will not exercise appellate jurisdiction. In support of this contention he has placed reliance on the judgment in Associate Builders Vs. Delhi Development Authority, (2015) 124 CLA 318 : (2015) 1 SCJ 42 and Kuldeep Singh Vs. The Commissioner of Police and Others, AIR 1999 SC 677 : (1999) 81 FLR 630 : (1999) 8 JT 603 : (1999) 1 LLJ 604 : (1998) 6 SCALE 588 : (1999) 2 SCC 10 : (1999) SCC(L&S) 429 : (1998) 3 SCR 594 Supp : (1999) AIRSCW 129 : (1998) 9 Supreme 452 .

Having heard the learned counsel for both parties and on careful perusal of the pleadings and material on record and the judgment under challenge, the only point that arises for consideration is:

Whether the Court below has committed any illegality in passing the impugned order granting temporary injunction directing the parties to maintain status-quo regarding the suit property warranting interference in exercise of the Appellate jurisdiction?

The case of the plaintiff rests on the plea taken that suit schedule property was purchased by Sri Govindswamy, father of plaintiff on 10.12.1997 from one Sri Muniswamappa. Father of plaintiff died on 12.10.1999; upon his death khatha was made over in the name of his wife Smt. Pankajamma. Though original measurement of the property was 80 x 45 feet, subsequent to the purchase the road attached to the suit property was widened and therefore, the measurement of the suit schedule property was reduced to 40 x 45 feet.

It is the specific case of the plaintiff that Sy. No. 10 and several other lands of Kathriguppe Village were acquired at the instance of the BDA. Though there was acquisition, possession was not taken over by the BDA because as on the date of the acquisition the area had been fully developed and constructions had come up and that was how revenue sites owners had been spared and father of plaintiff was one such purchaser of revenue site No. 306 formed in Sy. No. 45. Whereas, defendant''s definite case is that site No. 306 was allotted in favour of her father on 22.06.1984 by the BDA. The said site was formed by the BDA in the layout after acquiring several lands, such as Sy. Nos. 18 to 23, 25 to 28 and 30 to 32. Registered sale deed was executed by the BDA in favour of father of defendant, khatha was transferred in his name. Thereafter, he executed a gift deed in favour of the defendant pursuant to which the khatha was also changed in her name. Unless the plaintiff establishes that site No. 306 was carved out of Sy. No. 10 and that Sy. No. 10 had been developed even prior to acquisition and several sites had been formed in the said survey numbers and therefore, the BDA did not take over possession of the sites formed in Sy. No. 10 it cannot be said that plaintiff had made out a prima facie case for grant of temporary injunction. In the instant case, no such material has been placed on record to establish the same. Hence, there was no justification for the Court below to direct both parties to maintain status-quo.

Indeed the trial Court has not recorded any finding with regard to the prima facie case made out by the plaintiff. It does not say plaintiff had proved prima facie the location of the suit property in Sy. No. 10 nor has it held that site No. 306 was situated within the limit of the survey numbers which the defendant had claimed right. In fact, the trial Court records a finding that there was no material to show where exactly the suit property has been located. It entertained doubt regarding the location of site No. 306 in Sy. Nos. 18 to 23, 23 to 25 and 30 to 32 based only on some communication exchanged between the concerned police and the Assistant Revenue Officer of the BDA.

As rightly contended by the counsel for appellant/defendant if the plaintiff is not able to establish actual location and identity of the property in respect whereof he has sought a decree of injunction, grant of temporary injunction would not arise because no prima facie case could be said to have been made out for granting such relief. Only because there was confusion in the case made out by the plaintiff with regard location and identity of the suit property the defendant cannot be restrained from enjoying the property in the manner she liked. The defendant has produced authenticated documents originated from the statutory authority - the BDA to establish her case. Therefore, in my considered view the Court below has committed serious illegality in directing the defendant to maintain status-quo with regard to the suit property.

Direction to maintain status-quo would tantamount to restraining the defendant from improving the property or dealing with it in the manner profitable for her. Such an injunction cannot be granted in this case. Unless a finding is recorded holding that plaintiff has made out a prima facie case and balance of convenience was in his favour and irreparable loss would be caused if protection is not granted. Such findings have not been recorded by the Court below. Hence, the order passed by the Court below cannot be sustained.

Though learned counsel for the respondent has placed reliance on two judgments of the Apex Court to show when exactly findings of the trial Court can be termed as perverse, in the light of the findings that I have recorded, it is clear that the Court below has committed serious illegality in granting an order restraining both parties and directing them to maintain status-quo without satisfying itself of the essential ingredients for grant of temporary injunction. Therefore, the Appellate Court can exercise the appellate jurisdiction and set aside the judgment of the Court below.

The appeal, therefore, is allowed. Impugned order is set aside. Application filed in I.A. No. 1 seeking temporary injunction is dismissed.