Mohamed Ilyas vs P. Prakash and Others

B.S. Patil, J.—This appeal is filed by the plaintiff in O.S. No. 25565/2015 challenging the dismissal of the application filed by him under Order XXXIX Rules 1 & 2 CPC.

The suit has been filed by the plaintiff-appellant praying for a decree of permanent injunction to restrain the defendants from interfering with the plaintiff''s peaceful possession and enjoyment of the schedule property and for a declaration that the judgment and decree dated 31.03.2015 passed in O.S. No. 25770/2009 was not binding on the plaintiff.

The suit schedule property is described as the property bearing No. 13/5/101, situated at 1st Main Road, Silver Jubilee Park Road, Corporation Division No. 39, Bengaluru - 560002, with measurement shown as East to West towards southern side 15 feet and towards northern side 18 feet, and North to South towards eastern side 57'' 6" and western side 59 feet.

Plaintiff has stated in the plaint that he is the absolute owner in possession of the suit schedule property having acquired the same under the sale deed dated 10.02.1994. It is his case that after the purchase, he has leased out the premises in favour of the 3rd defendant - Mr. Khateeb Ahmed as per lease deed dated 10.07.1994 and the said 3rd defendant has been carrying on business in the name and style M/s. Prestige Ceramics. He has urged that the adjoining portion of the premises has been purchased by Mr. Khaleel Ahmed - father of the 3rd defendant. The allegations of the plaintiff are, that 1st defendant in collusion with the 2nd defendant filed a suit against the 3rd defendant, his father by impleading the vendor of the plaintiff on the file of XXVIII Addl. City Civil Judge, Mayo Hall, Bengaluru, in O.S. No. 25770/2009 seeking the relief of declaration, permanent injunction and for possession, without making the plaintiff herein as party to the proceedings though he had purchased the property way back in the year 1994.

Plaintiff herein filed an application for being impleaded in the said suit. The Trial Court had allowed the application. However, the said order was challenged before this Court by defendants 1 & 2/plaintiffs in the said suit This Court by order dated 03.03.2015 passed in W.P. No. 54469''/2014 set aside the order passed by the Trial Court observing that the plaintiff herein may protect his possession in accordance with law. Thereafter, O.S. No. 25770/2009 has been decreed directing to vacate the premises. It is in this background, plaintiff has contended that as the defendants had no right over the suit schedule property and were trying to interfere with his possession taking advantage of the decree obtained by them, he was constrained to file the present suit along with the application seeking temporary injunction to restrain the defendants from interfering with the possession of the suit property.

In the affidavit filed in support of the application, plaintiff has reiterated the contentions urged in the plaint. He has urged that 3rd defendant has been carrying on business in the premises as a tenant. The revenue records of the property stand in the name of the plaintiff and that defendants 1 & 2 were trying to interfere with the possession.

The application was resisted by defendants 1 & 2 contending inter alia that plaintiff was trying to grab property bearing No. 6, S.J.P. Road, which belonged to the 1st defendant and which has been in occupation of the 3rd defendant. He has traced his right against 3rd defendant on the basis of the decree obtained in the suit. They further contended that the agreement to lease dated 10.07.1994 being insufficiently stamped and unregistered cannot be looked into and the said agreement is required to be impounded and thus sought for rejection of the plaint.

The Trial Court on consideration of the respective pleadings, has held that both plaintiff and defendants 1 & 2 were claiming that the property in possession of 3rd defendant belonged to them. It has relied on the judgment rendered in O.S. No. 25770/2009 against the 3rd defendant, wherein a direction has been given to him to vacate the property by July 2015. The said decree pertained to property bearing Shop No. 6 and if the said judgment was taken into consideration, property in possession of the 3rd defendant as claimed by defendants 1 & 2 to be their property is established. Therefore, as things stood, the identity of the property itself was in dispute because it was not clear how the plaintiff claimed that property bearing No. 13/5/101 situated at 1st Main Road belonged to him. Unless the plaintiff established that property bearing No. 13/5/101 was in existence and he was in possession of the property, he cannot seek the relief. Hence, no prima facie case was made out by the plaintiff. It is this order that is called in question in this appeal.

Mr. Jayakumar S. Patil, learned Senior Counsel appearing for appellant has urged that purchase of the suit property by the plaintiff on 10.02.1994 by way of registered sale deed is evidenced by the registered document. The decree obtained by defendants 1 & 2 in O.S. No. 25770/2009 on 31.03.2015 cannot bind the plaintiff in this case because he was not a party to it and although he got himself impleaded by making an application, defendants 1 & 2 challenged the same before the High Court and got the said order set aside. Hence, it is not open for defendants 1 & 2 to rely on such decree in so far as the right, title and interest of the plaintiff as regards the suit property is concerned. He has urged that in O.S. No. 25770/2009, the vendor of the plaintiff herein has filed written statement contending that he had sold the property to the plaintiff herein. The 3rd defendant herein who was party in the said suit had specifically asserted that the property in his occupation belonged to the plaintiff herein and he was a tenant under the plaintiff. He has urged that both plaintiff and defendants 1 & 2 are claiming right over the very same property which is in occupation of the 3rd defendant and as regards the physical existence and location of the property occupied by the 3rd defendant, there was no dispute, and therefore, the court below was in error in ignoring all these relevant facts and proceeding only on the basis of the decree obtained by defendants 1 & 2 in O.S. No. 25770/2009.

Mr. Srivatsa, learned Senior Counsel appearing for defendants 1 & 2 has contended that plaintiff not being in possession of the property cannot seek injunction on the plea that his tenant was in possession; that the agreement of lease has been entered into for three years, it is not duly stamped and has not been registered, hence, cannot be looked into as held by this Court in the case of Smt. Dyavamma alias Sanna Mukkamma Vs. Smt. Balamma and Others, ; that the 3rd respondent-tenant has filed R.F.A. No. 901/2015 which is pending for admission before this Court. He has urged that in the absence of the plaintiff seeking declaration of his title, cannot secure an order which in effect would prevent the execution of the decree obtained in O.S. No. 25770/2009; the boundaries mentioned in the gift deed under which the vendor of the plaintiff claimed title and the boundaries mentioned in the sale deed dated 10.02.1994 under which the plaintiff claims title are different; that the order dated 21.12.2005 passed in E.P. No. 2464/2000 made it clear that the property in question did not belong to Venkatesh. He has also placed reliance on the judgments in the case of Datla China Appalanarasimha Raju Vs. Nadimpalli Seethayamma Garu and Others, and the judgment in the case of Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs. and Others, . He has also urged that plaintiff cannot seek injunction unless he is in actual physical possession by contending that he is in possession through his tenant.

Upon hearing the learned Counsel for both sides and on consideration of the entire materials on record, the only point that arises for consideration is,

"Whether the order under challenge suffers from any illegality warranting interference in exercise of the appellate jurisdiction?"

It is well established that for grant of temporary injunction, plaintiff who has approached the court has to make out prima facie case. He has to show that balance of convenience was in favour of granting temporary injunction and if temporary injunction was not granted, he will suffer irreparable injury. In order to find out whether plaintiff has made out prima facie case, the Trial Court was required to examine the pleadings of the parties, the documents produced and thereafter come to a reasoned conclusion.

In the instant case, the court below has mainly and essentially proceeded on the basis of the decree passed in favour of 1st defendant in O.S. No. 25770/2009 against the 3rd defendant directing him to vacate the property. As rightly contended by the learned Senior Counsel for the appellant, the judgment and decree passed in the said suit cannot be used against the plaintiff herein to non-suit him for the simple reason that defendants 1 & 2 have not only not impleaded the plaintiff herein as a party defendant in O.S. No. 25770/2009, but challenged the order passed by the Trial Court impleading the plaintiff herein as additional defendant in the said suit and the said order was set aside. Thus preventing the plaintiff herein from having his say in the matter in respect of the suit schedule property. It is not in dispute that both plaintiff and defendants 1 & 2 claim right over the very same property which is in possession of the 3rd defendant. The difference in property number assigned as per the two parties will not make any difference as the physical existence and the location of the property and its occupation by the 3rd defendant are not in disputed by both the parties. In such circumstance, the Trial Court was not justified in coming to the conclusion that as there was dispute regarding the identity of the property, prima facie case had not been made out by the plaintiff.

The important question which ought to have been examined by the court below is whether 3rd defendant was a tenant duly inducted into the property by the plaintiff and whether he could maintain a suit for permanent injunction to protect his possession through the tenant against the third party though he is not in actual possession. The court below has also not considered the effect of the documents relied upon by the plaintiff such as registered sale deed executed in his favour by his vendor - Venkatesh. The question whether the agreement of lease could have been looked into in the light of the contention that it was not sufficiently stamped and was not registered and whether there was any other material has not been examined. Whether the pleadings in the present suit and as per the stand taken in O.S. No. 25770/2009 by the respective parties, particularly 3rd defendant herein, it was not prima facie established that 3rd defendant was in possession of the property as a tenant under the plaintiff? Even the effect of the order dated 21.12.2005 passed in E.P. No. 2464/2000 on which reliance has been now placed by learned Senior Counsel for the respondent is also not considered by the court below. In such circumstance, as the court below has failed to consider the relevant documents and has proceeded only on the basis of the decree in O.S. No. 25770/2009 which is apparently not binding on the plaintiff herein and also on the basis of alleged dispute regarding the identity of the suit property which also is of no significance in the light of the undisputed fact that both parties are laying claim to the property in occupation of defendant No. 3 as tenant, the matter deserves to be examined afresh by the Trial Court.

In the light of the observations made above, this appeal is allowed. The impugned order is set aside. The matter is remitted for fresh consideration in accordance with law. The court below is directed to dispose of the application within a period of two months from today. Until then, parties are directed to maintain status quo with regard to the suit property.