Rakhi Felix vs Chandrashekar N.

B.S. Patil, J—This appeal arises out of the judgment dated 03.01.2015 passed in O.S. No. 26290/2014 on I.A. Nos. 1 and 2. By the impugned order the Court below has dismissed I.A. No. 1 filed by the plaintiff/appellant seeking an order of temporary injunction to restrain the defendant from interfering with the peaceful possession and enjoyment of suit schedule property by plaintiff and has allowed I.A. No. 2 filed by the defendant thereby vacating the ad-interim injunction granted on 01.09.2014.

Appellant is the plaintiff in the Court below. He has filed the suit seeking a decree of permanent injunction in respect of property bearing khatha Nos. 1328 and 1262 situated at Kacharakanahalli, Kasaba Hobli, Bengaluru North Taluk, presently having khatha No. 485 with the measurement as furnished therein.

According to plaintiff she has purchased the property from the legal representatives of the original owner one Sri. Hanuma @ Hanumaiah, S/o. Kivuda Byla under a registered sale deed dated 05.08.1995 registered on 20.04.1996. It is the further case of plaintiff that suit schedule property was originally recorded in the name of Sri. Hanumaiah in the revenue records; upon his death the name of his legal representatives was recorded and after purchasing the same khatha of the property was changed in the name of plaintiff in the records of Bruhat Bengaluru Mahanagara Palike (for short BBMP''). Plaintiff further contended that she has paid tax upto date to BBMP and continued to be in peaceful possession as absolute owner of the same and when the defendant attempted to demolish the compound wall and tried to interfere with the plaintiffs possession on 20.08.2014, he was constrained to institute the suit.

In support of her case, plaintiff has produced and relied upon the following documents:

"(i) original sale deed dated 05.08.1995;

(ii) six property tax paid receipts;

(iii) encumbrance certificate dated 29.01.2013;

(iv) Form-B extract of the property register extract for the period 2008-09 till 2012-13 issued by the BBMP and;

(v) Demand Register Extract for the period 1995-96 issued by the Kacharakanahalli group panchayath."

The plaintiff also contended that she had filed O.S. No. 25055/2013 against the Bengaluru Development Authority (for short ''BDA'') seeking a decree of permanent injunction in respect of the very property and by judgment and decree dated 19.04.2014 the suit filed by plaintiff had been decreed restraining the BDA or anybody on its behalf causing interference to the peaceful possession of the plaintiff.

The defendant appeared and contested the application filed contending inter alia that the suit filed was frivolous and vexatious; the description of suit property was baseless and bogus and that the number assigned to the property was in connivance with the estate agents with an intention to knock off the property.

The defendant produced the complaint filed by the plaintiff in C.C. No. 8085/2015 on the file of I Addl. CMM, Bengaluru, regarding the very sale transaction of the suit property. The defendant thus contended that even according to the version of plaintiff in the complaint, the documents pertaining to suit property were fabricated and fraudulent and therefore, she was not entitled for grant of equitable relief of injunction.

Trial Court after appreciating the pleadings and documents on record, has come to the conclusion that complaint filed by plaintiff disclosed that she had made allegations against the estate agents and her vendors alleging fabrication of documents and making alienation in her favour of the property that had been acquired by the BDA; therefore, on her own showing the documents relied on by her were not genuine as the property which was the subject matter of acquisition by BDA had been sold.

I have heard the learned counsel for both parties and perused the entire materials on record. The only point that arises for consideration in this case is:

"Whether the Court below has committed any illegality in passing the impugned order warranting interference in exercise of the appellate jurisdiction?"

It is not in dispute that in respect of the very property the plaintiff had filed a suit against the BDA in O.S. No. 25055/2013 and the said suit has been decreed on 19.04.2014 restraining the BDA and persons claiming on its behalf from causing any interference to the plaintiffs possession and enjoyment of suit schedule property except by due process of law. Indeed in the plaint filed in this case the plaintiff has referred to and relied upon the decree passed against the BDA to show that she has been in possession of the property.

It is true this decree of injunction granted against the BDA cannot bind the present defendant, but the fact remains that to show that plaintiff has asserted his right over this property as against the BDA, the decree passed by the Civil Court assumes significance. In addition, the plaintiff has produced sale deed from her previous vendor and the khatha duly entered in his name and also the tax paid receipts pertaining to the suit property. These documents prima facie disclose that plaintiff has been in lawful possession of the suit schedule property.

In contrast the assertion made by defendant is that the land has been indeed acquired and out of the acquired land an extent of 10 guntas in Sy. No. 60/1 was kharab land for which no compensation was paid and therefore it continued to be in possession and enjoyment of defendant as owner of the land and plaintiff was trying to locate the suit schedule property in the said portion of 10 guntas. There is absolutely no material produced by the defendant to substantiate this stand.

Learned counsel for defendant makes an endeavour to urge that though compensation in respect of 10 guntas of land has been deposited before the revenue official, the defendant has not received any compensation, therefore under the provisions of Section 24 of The Right to Fair Compensation And Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 the entire acquisition lapses and the defendant continues to enjoy absolute right over the said extent of 10 guntas of land.

This defence is not taken before the Court below nor had been considered and it is not the scope of this proceeding to examine the same. If at all, the defendant has any such right it is for him to plead and establish it in the manner known to law.

Learned counsel for defendant/respondent has placed reliance on the following judgments:

" S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, AIR 1994 SC 853 : (1993) 2 BC 546 : (1993) 6 JT 331 : (1995) 109 PLR 293 : (1993) 4 SCALE 277 : (1994) 1 SCC 1 : (1993) 3 SCR 422 Supp : (1994) 1 UJ 1 to contend that decree obtained against the BDA is a fraudulent one as it was obtained by non disclosure of the fact that land had been acquired. It has to be stated that this judgment has no application to the facts of the case because BDA was a party to the suit and after contest the decree has been passed and if the land had been acquired by BDA nothing prevented BDA to establish the same or challenge the decree before the Appellate Court.

Similarly the judgment in State of Bihar Vs. Dhirendra Kumar and others, AIR 1995 SC 1955 : (1995) 3 SCALE 700 : (1995) 4 SCC 229 : (1995) 3 SCR 857 : (1995) 2 UJ 389 in the case of State of Bihar v. Dhirendra Kumar and Others wherein it has been held that once possession of land had been already handed over to the Housing Board, Civil Court orders restraining the Housing Board from dispossessing the plaintiff would have no effect as it would be without jurisdiction will have no application to the facts of the present case. There is nothing to show that the suit property has been handed over to the BDA. Indeed BDA has suffered the decree from the Civil Court wherein possession of plaintiff/applicant has been protected. Hence, the above mentioned judgment has no application."

The judgment of the Supreme Court in Rameshwari Devi and Others Vs. Nirmala Devi and Others, (2011) 8 JT 90 : (2011) 3 RCR(Civil) 932 : (2011) 6 SCALE 677 : (2011) 8 SCC 249 : (2011) 8 SCR 992 : (2011) 5 UJ 2962 in the case of Ramrameshwari Devi and Others v. Nirmala Devi and Others, wherein the Apex Court has laid down that if a party is found to have obtained an ex-parte injunction on the basis of false pleadings and forged documents, he/she should be prosecuted for perjury and adequately punished also will have no application to the facts of the present case. I have already held that plaintiff has pleaded in the plaint regarding filing of the suit against BDA and the decree passed. She has succeeded in the said case in showing that the land had not been acquired. In such circumstances, the complaint filed by her against her vendors and the estate agents would not tantamount to suppression of material fact. Therefore, these judgments will have no application to the facts of present case.

Suffice to state that while plaintiff has produced several documents including registered sale deed and the decree passed against the BDA in respect of suit property to prima facie establish his possession over the property, defendant has not produced any document. In such circumstances, the trial Court has grossly erred in dismissing I.A. No. 1 solely on the ground that factum of filing of complaint against vendor of the plaintiff and the estate agents had not been disclosed in the plaint. The non-disclosure of acquisition by the BDA will not be material in the background of the fact that plaintiff had indeed obtained a decree against the BDA. At least at the stage of considering the prima facie case, the said aspect could not have been ignored."

Hence, I am of the view that order passed by the Court below suffers from illegality and same deserves to be set aside. Accordingly, as prima facie case has been made out and balance of convenience is in favour of the plaintiff, the application deserves to be allowed. Accordingly, I.A. No. 1 is allowed. Temporary injunction restraining the defendant from interfering with the possession of the suit schedule property by the plaintiff/appellant is granted. It is made clear that the observations made in this order are confined to the consideration of the Interlocutory Application and will not affect the merits of the matter.