Prabhavathi & Ors vs Thippamma (Dead) By Lr & Ors.

Ramachandra D. Huddar, J

CAV JUDGMENT

This Court is seized of a Miscellaneous First Appeal filed under Section 104 read with Order XLIII Rule 1 (r) of the Code of Civil Procedure, 1908, (for short, "CPC") which has been instituted by the appellants being aggrieved by the impugned order dated 19.12.2024 passed by the Learned I Additional District and Sessions Judge, Bengaluru Rural District, in Regular Appeal No. 98/2020, whereby the application filed by the appellants under Order XXXIX Rule 1 and 2 read with Section 151 of the CPC, seeking a temporary injunction against respondents Nos. 9 and 10, restraining them from interfering with the peaceful possession and enjoyment of the suit schedule property, came to be rejected.

The appellants have now approached this Court contending that, the said order is vitiated by serious errors of law and fact and that it disregards the overwhelming material placed before the Court establishing their prima facie title, continuous and undisturbed possession over the suit schedule property for several decades, and the threat of irreparable harm caused by the acts of the contesting respondents, who have sought to interfere with such possession by claiming through a line of title demonstrably lacking in substance and legally untenable.

The learned counsel for the appellants submits that, the appeal is filed by appellants in R.A.98/2020. The suit was filed for relief of partition and against the judgment and decree in R.A.No.98/2020 is filed and this impugned order arises on the application filed by the appellants. He would submit that, title of the appellants itself is disputed and now it is seized in the aforesaid regular appeal. During the pendency of the appeal itself there was a purchase of the property by respondent No.15. He would submit that, the learned trial Court has committed a grave error in dismissing the interim application. In support of his submission, he took this Court to various additional documents produced in this appeal. Learned counsel for the appellant further submits that, rights of the appellants kept open as they are legatee or class - 1 heirs. As the Will itself disputed, the purchaser of property has no better title than the family member. He submits that, till today Balappa Reddy has not lost case on merits though there are several proceedings.

As against this submission, the learned counsel for the respondents justifies the dismissal of interim application and submits that, the impugned order is a well reasoned order and cannot be interfered with. He too relies upon the additional documents produced and submits that, there is no merit in this appeal.

The learned counsel for the appellants as well as respondents have produced various documents in support of their submissions, and they have also furnished the synopsis showing the calendar of events that have taken place with regard to suit schedule properties right from 1982. The counsel for the appellants has produced certain documents along with the I.A. such as photographs showing the work being undertaken on the scheduled property. I have scrupulously perused all the materials placed on record. Though the interim application is filed in the shape of I.A.No.1/2025 seeking temporary injunction, as the appeal itself is heard on its merits, therefore, I.A.No.1/2025 is also heard along with the main appeal.

Having heard the arguments and on perusal of the records, the origin of the dispute trace back to the year 1952, as per the calendar of events furnished by both the counsels, i.e., when one Peddana @ Maniswami, the patriarch of the family, acquired by way of a registered Sale Deed, the suit schedule property, being land measuring 8 acres and 18 guntas situated in Survey No. 12 (New Survey No. 85), in Kyalasanahalli Village, Bengaluru South Taluk, then forming part of Krishnarajapura Hobli, Bengaluru South. This land holding, which formed part of his self-acquired properties, was subsequently the subject of the family arrangement formalized through a 'Panchayath Palupatti' executed on 16.01.1958 during his lifetime, wherein the said Peddanna, having 2 sons - Sri Narayanappa and Sri Balappa Reddy- effected an intra-family division. The property was apportioned in halves, with the southern 4 acres and 9 guntas being allotted to Narayanappa and the northern 4 acres and 9 guntas to Balappa Reddy. This division was respected, acted upon and admitted by all concerned, as evidenced by multiple instances, including Government acquisition proceedings in the year 1972 - 73, wherein Narayanappa independently received compensation for lands acquired from his share in relying upon the 1958 Palupatti.

In a significant development in 1973, Balappa Reddy executed a registered release-cum-partition dead relinquishing his rights over various family properties in favour of his father, Peddana, possibly as part of a broader settlement. Thereafter, on 11.07.1974, Peddana executed a registered Will whereby he bequeathed certain properties, including the entire northern portion of the suit schedule property (measuring 4 acres 9 guntas) to Balappa Reddy alone, explicitly excluding Narayanappa and his legal heirs from any claim thereto. This testamentary dispossession, supported by clear intention and solemn affirmation, was registered and validly executed.

Following the death of Peddana in the year 1978, Balappa Reddy stepped into peaceful possession and began cultivating the land allotted to him, exercising acts of ownership and possession that were neither challenged nor interfered with until 1981. It is alleged that, Narayanappa, despite having alienated his own share to a third party, (one Sri Raghu) in 1981, sought to disrupt the possession of Balappa Reddy.

The events that ensued included a series of litigations spanning decades, reflecting both the determination of the appellants to assert their legitimate rights, and the persistent attempts by the legal heirs of Narayanappa to cast doubt upon that claim. In 1988, Balappa Reddy initiated O.S.No.590/1988 against Narayanappa for declaration and injunction, seeking to reaffirm his title and possession over the suit schedule property. During the proceedings therein, Narayanappa admitted in unequivocal terms, that the property had indeed been partitioned by their father and that the Balappa Reddy was in possession and cultivation of the northern half. Despite this admission, Narayanappa filed O.S.No. 117/1993 seeking an injunction against Balappa Reddy, which was rejected on the ground that, he failed to establish even a prima facie case. The appeal in M.A.No.149/1993 met with a similar fate, with the learned Appellate Court explicitly holding that, the possession of Narayanappa was in serious doubt, and that there existed no documentary basis for granting any relief. The consistent trend in the judicial record shows that, the Court informally recognized Balappa Reddy's possession and denied equitable relief to Narayanappa.

The records further reveal that, meanwhile in the year 2004, Smt. Thippamma, sister of Balappa Reddy and Narayanappa, filed a suit for partition in O.S.No. 1168/2004 against both her brothers, including the suit schedule property in her claim. In the said suit, a status quo order was granted in the year 2005 in favour of Balappa Reddy and the same continued in force for a period of 14 years until the suit was dismissed on 25.10.2019. The records also indicate that, during the pendency of the proceedings in R.F.A.No.509/2000 and R.P.No. 39/2005, the legal heirs of Narayanappa executed Sale Deed dated 24.11.2004 in favour of respondents Nos. 9 and 10 alienating the very portion of the land bequeathed to Balappa Reddy over which they had no subsisting right, title or possession. The sales were made without disclosure to the appellants and during pending litigation, raising questions about their bona fides.

The records further reveal that, despite this, respondent Nos. 9 and 10, claiming under these disputed transactions, sought to assert possession and made attempts to demolish a tomb constructed in memory of Smt. Gurramma, wife of Balappa Reddy, who had been buried on the suit schedule property in the year 2007. This provoked the appellants to seek relief in the form of temporary injunction, first before the trial Court and now before this Court. The interim application filed in R.A.No.98/2020 seeking to restrain respondents Nos. 9 and 10 from interfering with possession was unfortunately rejected by the learned Additional District and Sessions Judge on 19.12.2024, holding that, the appellants failed to make out a prima facie case, that no house or tomb was visible in the photographs, and that no documents had been produced showing possession.

On perusal of the impugned order, this Court is unable to accept the reasoning of the learned District Judge. The finding that the appellants failed to establish a prima facie case ignores the extensive documentary report, the admissions of Narayanappa, the consistency in earlier orders granting injunction in favour of Balappa Reddy, and the fact that every time possession was reciprocated, it was found to lay with the appellants or their predecessors. Moreover, the photographs relied upon by the learned Judge are only one set, whereas the appellants had furnished photographs both prior and subsequent to demolition-depicting the tomb, house and Nilgiri trees in question - of which the former appeared not to have been considered.

The learned trial Court also overlooked crucial documents such as electricity bills, revenue entries in the name of Balappa Reddy, mutation records and even an earlier order of this Court in W.P.No. 9146/2016 whereby revenue entries were manipulated in favour of respondent Nos. 9 and 10, were quashed and the matter was remanded. All this material, which substantiates the appellant's continuous possession, was summarily disregarded by the trial Court.

When the appellants are seeking the equitable relief from the equitable jurisdictional Court under Order XXXIX Rules 1 and 2 of CPC, it mandates the Court to preserve possession where a strong prima facie case is made out, the balance of convenience favours the applicants, and there exists a risk of irreparable harm. This Court finds that the appellants have successfully established their claim under all three heads. The registered Will of 1974, the constitutional judicial findings of possession, the absence of any adverse order establishing respondent Nos. 9 and 10's title, the admissions of Narayanappa, the prior injunctions in favour of the appellants, the continuing entries in revenue and mutation records, and the timing and conduct of alleged alienation - together build a compelling prima facie case.

The balance of convenience clearly lies with the appellants, whose possession stands threatened by third-party purchasers without clear title, who claim under individuals who had themselves divested their rights decades ago. The threatened destruction of the tomb of a family member, the illegal disconnection of electricity, which is now the subject of contempt proceedings, and the unilateral attempt by respondents Nos.9 and 10 to alter possession amidst, pending litigation all justify injunctive relief. The law supported by the appellants in the absence of protection - namely the destruction of a grave, destruction of family property, and disruption of possession that cannot be compensated by monetary means. Accordingly, this Court finds the order of the learned I Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru, to be legally unsustainable and factually flawed.

Resultantly, pass the following:

ORDER

(i) The appeal is allowed.

(ii) The impugned order dated 19.12.2024 passed in R.A.No.98/2020 by I Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru, is set aside and the application for injunction under Order XXXIX Rules 1 and 2 of CPC is allowed.

(iii) The respondents, particularly respondent Nos. 9 and 10, be restrained from interfering in any manner with the peaceful possession and enjoyment of the suit schedule property by the appellants, or from damaging, defiling or removing any structure, including the tomb of Smt. Gurramma, till the final disposal of R.A.No. 98/2020.

(iv) In view of the facts brought on record by both the parties, the learned First Appellate Court is requested to dispose of R.A.No.98/2020 expeditiously with all its promptitude.

(v) All pending applications are disposed of.

No orders as to cost.