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Judgment
The Plaintiffs have filed these two appeals questioning a common order passed on I.A. Nos. 3 and 4, whereby and whereunder, two applications filed seeking temporary injunction orders, restraining the Defendants from alienating the suit properties and from changing the nature of suit properties, pending disposal of the suit was dismissed. The suit filed is for passing a judgment and decree directing the Defendants to re-deliver possession of the plaint schedule properties to the Plaintiffs and for incidental reliefs. The plaint schedule shows five items of agricultural lands in Sy, Nos. 1/2, 1/3, 1/4, 1/5 and 1/7 of Nagarabhavi Village, Yeshwantapur Hobli, Bangalore North Taluk.
The Plaintiffs entered into agreements of sale dated 19,11,1981, 21.12.1981 and 25.3.1982 with the 1st Defendant. They also executed a general power of attorney in favour of the first Defendant. The Plaintiffs claim that the agreements for the intended purpose did not materialise and there is frustration of contract. According to the Plaintiffs, they cancelled the power of attorney and being the absolute owners of the plaint schedule properties are entitled to the redelivery of the same.
Plaintiffs filed I. As. 3 and 4 to pass temporary injunction orders. Contending that, the transaction between themselves and the 1st Defendant being void, the 1st Defendant and persons claiming under or through it, cannot deal with the properties in any manner. Since exparte order of temporary injunction was not granted and emergent notice was ordered to the Defendants, the Plaintiffs filed MFA 7218/10 which was dismissed by directing the Trial Court to decide I. As. 3 and 4 within a period of 4 weeks from the date of receipt of the judgment. However, liberty was reserved to the Plaintiffs to file separate applications against the Defendants who have not been served with the summons. Some of the Defendants having been served with the summons, appeared and filed statement of objections to the I. As.
In the statement of objections filed, Defendant 1 has stated that it has parted with the possession of the suit properties in favour of the alltottes by executing teasecumhsaie agreements and subsequently possession certificate(s) were also issued and that the allottes have become owners by virtue of their enjoyment of the property after the lease period and hence, there is no scope for alienation or altering of the properties by it. It was pointed out that, suit properties shown to be agricultural lands as on the date of filing of the suit, had ceased to be agricultural lands, since layout of sites was formed and possession of the sites was delivered to the allottees right from 1990 and the suit filed in the year 2010 is barred by limitation and also not maintainable, besides being devoid of merit. It was submitted that 27 sites in Sy. Nos. 1/5 and 1/7 is the subject matter of consideration in RFA 671/05 and hence, the suit cannot We in respect of the properties in Sy. Nos. 1/5 and 1/7. It was stated that the suit has no cause of action and is untenable.
The other Defendants, who are the allottees of the sits by the 1st Defendant, contended that, there is misrepresentation of facts by the Plaintiffs with a scheme and design to enrich themselves and I. As. 3 and 4 are not maintainable. It was stated that Plaintiffs have executed 3 agreements and irrevocable power of attorney in favour of the 1st Defendant, in respect of the suit properties, which documents was acted upon, layout of sites was formed, with the approval of the statutory authorities and the allotment of sites was made in favour of the members of the Society and that lease-cum-sale agreements, possession certificates were issued and thereafter, sale deeds have also been executed and that they are in possession and enjoyment of the allotted sites. According to them, they are in undisturbed possession for over 20 years and the Plaintiffs have no right to maintain the suit against them.
Defendant No. 160 - BBMP filed objections interalia contending that, the suit for recovery of possession without seeking declaratory relief is not maintainable and that the 1st Defendant executed a relinquishment deed in favour of BDA, which approved the layout plan in the year 1989 and there is a comprehensive development plan. The C.A. sites and parks vested with the BDA upon execution of the release deed was handed over to the BBMP. It was contended that, the suit is not maintainable and hence, there cannot be any order of temporary injunction.
Considering the rival contentions and the record of the case, the Trial Court has held that the Plaintiffs have not approached the Court with clean hands and the discretionary relief of temporary injunction cannot be extended to the Plaintiffs, who have not made out a prima face ease. Noticing that, the 1st Defendant based on a deed of power of attorney formed a layout of sites and distributed the same to its members and some of the members have constructed the buildings, irreparable injury will be caused to them rather than to the Plaintiffs, who if succeed in the suit will get property with improvement, passed the impugned order dismissing I. As 3 & 4.
Sri P.D. Surana, learned advocate appearing for the Appellants, contended that, the Trial Court has not considered the case of the Plaintiffs in the correct perspective and the impugned order though runs to 31 pages, is not a considered and reasoned order and hence, interference in the matter is called for. Learned Counsel submitted that, the title of the Plaintiffs being not in dispute, the agreements entered into by the Plaintiffs with the 1st Defendant having become void, since the 1st Defendant cannot hold any agricultural land and there being frustration of contract and the power of attorney executed having been rescinded, are entitled to re-delivery of possession of the suit properties. Learned Counsel further submitted that, if there were to be any acts of alienation by the Defendants or the Defendants changing the nature of suit property, the Plaintiffs would be put to irreparable loss and injury. Learned Counsel submitted that, l. As 3 & 4 filed in the Trial Court may be allowed and the temporary injunction as prayed therein may be granted.
Sri S. Shekar Shetty, Learned Counsel appearing for the 1st Defendant, on the other hand contended that, the Plaintiffs have suppressed material facts and instituted the suit on misrepresented facts to have wrongful gain. Learned Counsel submitted that, the 1st Defendant remitted the conversion fee to the BDA to make use of the property for non-agricultural use and the BDA passed resolution approving the change of land use and the layout, whereafter the 1st Defendant deposited the amount payable towards water supply and UGD. Learned Counsel submitted that layout was formed and BDA called upon the 1st Defendant on 14.02.1992 to execute release deed in respect of C.A. sites and a release deed was executed on 15.12.1996 and the C.A. sites were handed over. The BDA having permitted the 1st Defendant to allot the sites to its members, possession certificates were issued to the allot tees and lease-cum-sale deeds were executed and thereafter sale deeds conveying the sites have also been executed. Learned Counsel submits that in the circumstances, there being no prima facie case made out by the Plaintiffs, the Trial Court is justified in dismissing I. As 3 & 4.
Sri S. Sunil Yadav, learned advocate appearing for some of the Respondents/Defendants, contended that, Defendants 2 to 157 are teachers, out of whom many have retired from service and having been allotted the sites by the 1st Defendant by receiving the allotment price, construction work was undertaken. Learned Counsel submitted that, the Plaintiffs with oblique motive, instituted the suit to cause loss and prejudice to Defendants 2 to 157, who by taking loans, put up constructions on the suit property. Learned Counsel submitted that, there being no prima facie case made out, since the execution of the agreements and power of attorney by the Plaintiff in favour of the 1st Defendant being not in dispute, layout of sites having been formed by the 1st Defendant and there being already a change in the nature of suit property, which is evident even from the pleadings of the Plaintiffs, the Plaintiffs having not made out a prima facie case, the Trial Court is justified in dismissing I. As 3 & 4. Learned Counsel appearing for other Defendants made similar submissions and contended that the Trial Court is justified in dismissing I. As 3 & 4
Learned Counsel on both sides cited decisions. In my opinion, it is un-necessary to make any reference to the same.
Keeping in view the rival contentions and the record, the point for consideration is:
Whether the dismissal of I. As 3 & 4 by the Trial Court is justified?
Grant of temporary injunction is governed by 4 basic elements i.e., prima face case: balance of convenience: irreparable loss & injury, and: equity, which are required to be considered in a proper perspective, in the facts and circumstances of the case.
In order to obtain an order of temporary injunction, the party who seeks such injunction has to prove that he has made out a prima facie case, the balance of convenience is also in his favour and that he will suffer irreparable loss and injury, it the temporary injunction is not granted. It is well settled principle of law that, when a party fails to prove prima facie case, question of considering the balance of convenience or irreparable loss and injury to the party concerned would not be material at all. If a party fails to prove prima facie case, it is not open to the Court to grant temporary injunction in his favour, even if he has made out a case of balance of convenience in his favour and would suffer irreparable loss and injury if no temporary injunction order is passed.
Indisputedly, the Plaintiffs entered into agreements of sale dated 19.11.1981, 21.12.1981 and 25.03.1982 with the 1st Defendant. They also executed a deed of irrevocable power of attorney dated 20.09.1985 in favour of the 1st Defendant. In O.S 2443/1984, filed by Smt. Gangamma and her children, the Plaintiffs herein, who were Defendants 1 to 4, admitted the fact of the 1st Defendant taking up of the work of development of suit property for non-agricultural use formation of layout of sites. The formation of layout of sites in the suit property, is evident from the order passed in RFA 671/2005. The Plaintiffs terminated the said agreements of sale and revoked the deed of power of attorney, by issue of a notice dated 20.05.2007 to the 1st Defendant. The said act of revocation of deed of power of attorney was questioned by the 1st Defendant in O.S. 5429/2007, which having been dismissed for non-prosecution on 18.02.2010, an application seeking restoration is stated to have been filed and pending.
The record shows that, the 1st Defendant in order to undertake development of suit property into a layout of sites, remitted certain sums to BDA. The 1st Defendant having been called upon by the BDA to execute release deed in respect of civic amenity area, executed the release deed and handed over the C.A. area to the BDA and the property having subsequently fallen within the administrative jurisdiction of the BBMP, there is assignment by the BDA in favour of the BBMP. The record shows the 1st Defendant having made allotment of sites to its members, issued possession certificates, entered into lease-cum-sale deeds, and executed sale deeds in respect of the sites formed by it on the suit property i.e., in favour of Defendants 2 to 157. The photographs placed on record would indicate that, on the suit property, number of buildings have come up and few of them are in the process of completion. The statutory/locaI authority has sanctioned the plans for construction and has issued the building licence in favour of the allottees of sites of the 1st Defendant. Thus, the property which the Plaintiffs delivered to the 1st Defendant in pursuance of the said agreements of sale, has ceased to be an agricultural land and the same has been put to non-agricultural residential use. In the plaint schedule, the suit properties have been shown as dry lands only. The records produced by the Defendants show that, the suit property has ceased to be an agricultural land.
Keeping in view the said aspects, the contention of the Defendants that the suit for re-delivery of possession without seeking declaratory & consequential reliefs and also the bar of limitation, prima facie appears to be sound. Since the issues relating to maintainability of the suit and bar of limitation arise for determination and in view of the fact that the suit property has ceased to be an agricultural land, in view of layout of sites having formed and few buildings having been constructed thereon, the Plaintiffs have not made out a prima facie case for consideration.
In the result, the appeals being devoid of merit, stand dismissed. However, the Defendants, if were to undertake any kind of developmental acts on the suit property, the same shall be subject to the result of the suit.
If the Defendants were to henceforth create any third party interest on the suit property, the deed/s executed, shall clearly stipulate that "the matter is subjudice and the same shall be subject to ultimate decision of the pending suit".
It is made clear that, whatever observation/findings that have been made in this judgment would not mean to prejudice the case of the Plaintiffs in the pending suit.
The Trial Court should independently decide the suit in accordance with law, without being influenced by any of the observation/findings in this judgment, which are limited to the consideration of the rival contentions addressed on I.A. 3 and 4.
In the circumstances of the case, parties are directed to bear their respective costs.