Ratna Nagaraj and Others vs K. Prashanth

Budihal R.B., J.—1. These writ petitions are filed by petitioners-defendant Nos. 1 and 2 praying this Court to quash the order passed in M.A. No. 47/2015 dated 14.12.2015 by the Principal Senior Civil Judge, Bangalore, vide Annexure � A and also the order dated 3.10.2015 passed by Hon''ble I Additional Civil Judge, Bangalore Rural District, Bangalore on I.A. filed under Order XXXIX Rules 1 and 2 r/w. Section 151 of the Code of Civil Procedure vide Annexure-B.

The respondent-plaintiff filed the suit for permanent injunction in respect of the suit schedule property seeking permanent injunction against the defendant Nos. 1 and 2 who are petitioners herein in these writ petitions for temporary injunction till the disposal of the suit. The said application was filed by defendant Nos. 1 and 2 for considering the case on the merits of the case. Ultimately the Trial Court allowed the application and granted the injunction order as against the present petitioners herein. The said order was challenged by the petitioners herein before the First Appellate Court in M.A. No. 47/2015 dated 14.12.2015. After considering the said appeal on merits the First Appellate Court also dismissed the Miscellaneous Appeal confirming the order passed by the Trial Court. Being aggrieved by the same the writ petitioners are before this Court.

Heard the arguments of the learned Senior Counsel appearing on behalf of the counsel on record for defendants and also the arguments of the learned counsel appearing for the respondent-plaintiff.

Learned Senior Counsel during the course of his arguments made the submission that looking to the documents pertaining to the suit schedule property, it is the claim of respondent-plaintiff that the said property had fallen to the share of his father in the oral partition and thereafter the father of the plaintiff gifted the suit property in favour of the plaintiff under the registered gift deed. Learned Senior Counsel made the submission that materials goes to show that looking to the contents of the gift deed there is a recital that the property has fallen to the share of the father of the plaintiff under the panchayath parikat. He made submission in respect of such a thing that the said document panchayath parikat was not at all produced by the plaintiff before the Trial Court. But on the contrary, the respondents, who are defendants produced the panchayath parikat before the Trial Court. The learned Senior Counsel also made the submission that the plaintiff also relied upon the document i.e., mutation entry certification of the gift deed transaction. Regarding the same, the counsel made the further submission that in the written statement and objection statement filed there is no mention about the same. Defendants took the clear contention that there is dispute with regard to mutation entry certification and the proceedings are pending before the Revenue Court - the Assistant Commissioner. Counsel also made submission that when the injunction application was allowed by the Trial Court and the same was under challenge before the Appellate Court, in the meantime, the Assistant Commissioner allowed the appeal challenging the mutation entry in respect of the gift deed and the said mutation entry has been set aside and the matter was remanded back. Learned Senior Counsel made further submission that as per the panchayath parikat if the recitals are looked into there is no specific mention in the said document that the property bearing Sy. No. 127/2 had fallen to the share of the father of the plaintiff. It is also his submission that panchanama was conducted in respect of the said property and at that time it was noticed that it is the defendants who had kept the materials in the said property and were in possession of the said property. Hence the learned Senior Counsel submits that this document panchayath parikat and mahazer were not considered by the Trial Court while disposing of the said application. The learned counsel further submitted that in that regard Annexure F has been produced and there is mention about the defendants keeping the material and being in possession of the said open site. Hence learned Senior Counsel submits that in spite of producing all these documents, the Trial Court only considered the registered gift deed and the mutation entry and came to the conclusion that it is the plaintiff, who is in possession and enjoyment of the suit schedule property and granted injunction order ignoring all other materials produced in the case. Learned Senior Counsel also made submission that though there are concurrent findings of the courts below but when the documentary evidence is not at all considered, this Court can interfere into the matter and to set aside the order passed by the Courts below. Hence he submitted to allow the writ petition.

Per contra, the learned counsel for the respondent - plaintiff during the course of his argument made the submission that firstly the writ petition is not maintainable, which is filed by the power of attorney holders. It is also his submission that in the entire power of attorney there is no mention of the survey number of the suit schedule property. The learned counsel further made the submission that the Trial Court after considering the factual aspects of the matter and also the relevant documents on record allowed the application and granted temporary injunction in favour of the plaintiff and when it was challenged before the Appellate Court, the Appellate Court also re-appreciated the matter and ultimately confirmed the order passed by the Trial Court and it is his submission that there are concurrent findings of the Courts below. Therefore, in these writ petitions the Court cannot interfere to set aside such orders and hence he submitted to dismiss the writ petitions.

I have perused the grounds urged in the writ petitions. The order passed by the Trial Court on the application seeking injunction and also all the materials produced by the writ petitioners herein along with the writ petitions, so also I have perused the judgment passed by the First Appellate Court in M.A. No. 47/2015 confirming the order passed by the Trial Court and dismissing the said Miscellaneous Appeal. As it is rightly contended by the learned Senior Counsel that the case of the plaintiff is based on the gift deed as well as the mutation entry stated to have been certified by the revenue authority, the document panchayath parikat is also produced in the case by the writ petitioners. The said document was produced before the Trial Court even before hearing the application for grant of injunction. Learned Senior Counsel drew the attention of this Court to the relevant portion in the said document and submits that there is no mention in the panchayath parikat to show that the suit schedule property has been fallen to the share of the father of the plaintiff. Therefore, the question that arises for consideration is that when in the said document there is no mention with regard to the allotment of the suit schedule property to the share of the father of the plaintiff and the said property cannot be gifted in favour of the plaintiff. Apart from that looking to the averments of the panchayath parikat as well as the Gift deed is concerned the recitals are inconsistent with each other and it is the case of the plaintiff that the suit schedule property has fallen to the share of the father of the plaintiff in the oral partition, but the documents goes to show that the said property has fallen to the share of the plaintiff in panchayath parikat, which is evidenced by the said document and the said document is produced before the Court also. It is no doubt true that the Trial Court also made a reference to the mutation entry which is certified by the revenue authorities. But looking to the objection statement as well as the written statement filed by the defendants in the said suit, there is clear indication that the matter is disputed and it is pending before the revenue authorities and at that time, the matter was pending before the Assistant Commissioner. But by this time, it is also brought to the notice of the Court that the Assistant Commissioner allowed the appeal and set aside the certification of the mutation entry and the same has been remanded back. Under such circumstances, the basis for the plaintiff to rely upon were the two documents gift deed as well as the mutation entry. The mutation entry has already been set aside, and as I have already observed so far as the contents of the two documents gift deed and panchayath parikat is concerned they are inconsistent with each other. Even the document Annexure-F relating to panchanama conducted in respect of the said document, there is a mention that the defendant kept his material in the open site. About all these documents, there is no reference made by the Trial Court even though the said documents were produced before the Trial Court at the time of hearing the said application. I am conscious of the fact that in these writ petitions that too when there are concurrent findings by the Courts below, the scope of the writ petition is very limited. I am also conscious of the fact that there are concurrent findings regarding factual aspects of the matter, but when the documentary evidence has been produced by the defendants before the Trial Court, about which there is no reference and not properly considered by the Trial Court, this itself is a ground for this Court to interfere into the said matter even though there are concurrent findings of the Court below. The documents in question are those which will go to the very root of the matter. Under such circumstances, the contention of the other side that as there are concurrent findings of the Court below and hence this Court cannot interfere, cannot be accepted at all. Looking to the order passed by the Trial Court the reference is not made to the relevant documents produced in the case when the order was challenged before the First Appellate Court, the First Appellate Court ought to have considered factual aspects as well as the legal aspects, but looking to the order of the First Appellate Court it indicates that it simply endorsed its view to the order passed by the Trial Court. Under such circumstances, the matter requires re-consideration. Therefore, the writ petitioners herein have made out a case to interfere into the orders of the Court below.

Accordingly, the writ petitions are allowed. The orders passed by the Trial Court which is confirmed by the First Appellate Court are hereby set aside and the matter is remanded back to the Trial Court to consider the injunction application afresh, by giving opportunity to both the parties and to dispose of the matter after considering the entire materials produced by both the parties.

However, the Trial Court while disposing of the said application shall consider and dispose of the same in accordance with law without being influenced by the observations made in the body of this order.