Sadanand Mahalingappa Pamadini vs Babasaheb Maruti Magadum and Others

B.S. Patil, J.—1. This writ petition is filed by defendant No. 25 in O.S. No. 8/2010. He is aggrieved by the orders passed by the Courts below directing both plaintiff and defendants to maintain status quo with regard to the suit property.

The suit schedule property is an extent of 8 acres of land comprised in R.S. No. 78/P1 totally measuring 27 acres 35 guntas situated at Yamagarni Village in Chikodi Taluk of Belgaum District. Plaintiff - respondent No. 1 herein has filed the suit for a decree of permanent injunction to restrain the defendants from disturbing his peaceful possession and enjoyment of the suit property. He has based his claim on the agreement to sell dated 01.05.1982 stated to have been executed by the husband/father of defendants 18 to 21 in favour of plaintiff and his brothers agreeing to sell the property for a total consideration of Rs. 24,000/- and out of the same, a sum of Rs. 15,000/- had been allegedly received by the father of defendants 18 to 21 on 01.05.1982. According to them, plaintiff and his brothers were put in possession of the suit property. The agreement recited that as there were Court cases pending regarding the suit property, sale deed would be executed once the Court cases were concluded.

It is further urged by the plaintiff that after the agreement was executed, plaintiff and his brothers constructed two houses in the front portion of the property and Grama Panchayat assigned them property Nos. 552 and 562. It was thus urged that plaintiff and his brothers were in actual possession of the suit property and were residing with their family in the house constructed therein. Plaintiff further alleged that defendants 1 to 5, in order to illegally evict the plaintiff, trespassed into the property, abused the plaintiff and his brothers and caused destruction of house hold articles thereby forcing the plaintiff to lodge a complaint; defendants, contrary to the agreement to sell executed by them had created a document styled as ''sale deed'' wherein the suit property had been sold in favour of defendant No. 25 - Sri S.M. Pamdinni and the said Pamdinni was trying to take advantage of his name entered in the revenue records to forcefully evict the plaintiff and therefore, plaintiff was constrained to approach the Court seeking a decree of permanent injunction.

An application was filed under Order 39 Rules 1 and 2 of CPC se6king an order of temporary injunction to restrain the defendants from disturbing the peaceful as session and enjoyment of the suit property by the plaintiff and his brothers.

Defendant No. 25 filed his written statement. He has denied the plaint averments including the assertion regarding actual possession and enjoyment of the property by the plaintiff and his brothers. The alleged title and as session of plaintiffs verses - defendants 18 to 21 was also denied. Defendant No. 25 asserted that he was in actual as session and enjoyment of the suit property by virtue of a registered said done dated 23.01.2007 executed by the original owner - deceased Mehabubkhan Abaskhan Inamdar. He further contended that plaintiff had suppressed material fact that defendants 18 to 21 had claimed right over the suit property as tenants and their application was rejected by the land Tribunal, Chikodi as order dated 28.04.2003. A writ petition had been filed against the said order in W.P. No. 40890/2003 before the High Court which was pending (at the time of filing the written statement). It was thus contended that when the vendors of the plaintiff had themselves claimed tenancy rights over the suit property, question of executing any agreement to sell in respect of the said property in favour of the plaintiff would not arise.

The trial Court vide its order dated 13.02.2014 allowed the application filed by the plaintiff directing both parties to maintain status quo with regard to the suit property till the disposal of the suit. This order was challenged in appeal before the learned Senior Civil Judge, Chikodi, in M.A. No. 2/2015. The Appellate Court has dismissed the appeal by confirming the order of status quo granted. The suit is ordered to be disposed of within six months from the date of receipt of a copy of that order. Aggrieved by the same, the present writ petition has been filed.

I have heard the learned counsel for the parties who have taken me through the pleadings and the judgments under challenge. The only point that falls for consideration is:

"Whether the Courts below have committed patent illegality resulting in failure of justice in allowing the application for grant of temporary injunction by directing both parties to maintain status quo?"

For the purpose of granting an order of status quo, it is necessary that the Court has to first find out who is in possession of the property so that status quo with regard to the said possession shall be maintained. In order to ascertain the same, the well recognised principles of existence of prima facie case, balance of convenience and irreparable injury has to be established by the plaintiff.

Perusal of the order passed by the trial Court does not at all disclose any application of mind to the documents on record and to the pleadings to come to a conclusion that plaintiff had indeed made out a prima facie case. What all has been said by the trial Court is that a proceeding in W.P. No. 30340/2013 was pending before the High Court with respect to the suit schedule property; the specific grievance of the plaintiff being that defendants were disturbing the peaceful possession of the suit schedule property, keeping in mind the facts and circumstances of the case, it was just and necessary to direct both parties to maintain status quo till the disposal of the case. This is not the way the trial Court is expected to examine the matter for considering an application filed under Order 39 Rules 1 and 2 of CPC.

For the purpose of finding out prima facie case, the Court has to examine the pleadings and the documents produced by both parties with regard to the actual possession and enjoyment of the property; the nature of such enjoyment of the property and whether there was illegal interference with the same that deserved to be prevented. This apart, balance of convenience in favour of the parties and irreparable injury that plaintiff may suffer in case temporary injunction was refused has to be also considered. None of these factors have been considered by the trial Court. Except repeatedly referring to the principles to be kept in mind for grant of temporary injunction, the trial Court has not stated how, in the facts and circumstances of the case, plaintiff had satisfied those requirements for grant of temporary injunction.

Insofar as the order passed by the Appellate Court, it has made reference to the previous litigation in O.S. No. 29/2011, O.S. No. 68/2009 and also W.P. No. 408090/2003 which was eventually dismissed on 17.01.2013. Writ appeal filed was pending at that time in W.A. No. 30340/2013. The Appellate Court has assigned the reason that as the dispute was with reference to agricultural lands, if third party interest was permitted to be created, it would lead to irretrievable situation. Therefore, the subject property was required to be maintained in status quo so that plaintiff would be entitled to enjoy the fruits of the decree in case he succeeded.

The main contention urged by the learned counsel for the writ petitioner - defendant No. 25 is that admittedly, vendors of the plaintiff had filed an application seeking grant of occupancy rights in respect of the very same property before the Land Tribunal, Chikodi; the Land Tribunal had rejected their application recording a finding that they were not the tenants; this order was challenged by filing a writ petition in W.P. No. 40890/2003 by the alleged vendors of the plaintiff; the said writ petition was dismissed on 17.01.2013. Order passed in writ petition was challenged in W.A. Nos. 30340/2013 and 30957-959/2013. The writ appeals were also dismissed on 18.12.2014. Thus, right of the vendors of the plaintiff was conclusively decided holding that they were not tenants and were not entitled for grant of occupancy rights. That being the position, it is urged by the learned counsel for the petitioner that both the Courts could not have ignored this development while coming to the conclusion that prima facie case had been made out by the plaintiff on the basis of the alleged agreement to sell. As the agreement was executed not by the owners of the property but by the so called tenants whose application seeking grant of occupancy rights had been decided against them, there was no prima facie case made out by them.

The contention of the learned counsel for the plaintiff is that possession of the plaintiff had been proved by a decree passed in O.S. No. 29/2011; the agreement to sell dated 01.05.1982 clearly recited that plaintiff was put in possession of the property by defendants 18 to 21 by receiving valuable consideration and that vendors of the plaintiff were indeed owners of 1/4th extent of the suit property though they had claimed occupancy rights in respect of the entire extent by fling an application under Form No. 7; that both the Courts have taken note of the conduct of the parties, particularly of defendant No. 25 and his vendors who had violated the status quo order in getting the sale deed executed on 23.01.2007. He urges that person who violates the order of status quo and obtains sale deed cannot be permitted to assert his rights based on such a document and therefore, the Courts below were right and justified in directing both parties to maintain status quo.

As already referred to above, both the Courts below have not examined the effect of dismissal of the writ petition filed by defendants 18 to 21. They had asserted their rights over the land in question as tenants. Their application has been finally dismissed by virtue of the order passed in the writ appeal on 18.12.2014. Atleast the Appellate Court ought to have examined the effect of this order because at the time when the matter was pending before the Appellate Court, writ appeal came to be dismissed. For a person to execute an agreement to sell in favour of another person he has to prima facie possess title over the property to transfer it to the purchaser. The case of the plaintiff is based on the agreement to sell. If plaintiffs vendors did not have title over the property and atleast if prima facie the same is not established, question of believing the case of the plaintiff and granting temporary injunction would not arise. This aspect of the matter has not been considered by both the Courts for granting an order of status quo. Even for granting an order of status quo, prima facie case has to be made out by the plaintiff. If it is the assertion of the plaintiff that his vendors were owners of a portion of the property in respect whereof an agreement to sell was executed, it was necessary for them to assert the same and prima facie establish it. Pleadings and the documents in this regard have to be referred to and examined by the Court of first instance before passing any order on the same. This has not been done in the present case. Both the Courts have therefore seriously erred in not following the cardinal principles for grant of temporary injunction. The lower Appellate Court erred in directing the parties to maintain status quo because there was an order of status quo granted in the writ petition. When the writ petition and the writ appeals are dismissed, it is the final order passed in the writ petition and the writ appeal that have to be examined and considered.

Hence, without expressing any opinion on the merit of the claim, orders under challenge deserve to be set aside. The matter requires to be heard afresh by the trial Court by providing an opportunity to both parties. Though the learned counsel for both parties wanted to place on record some additional documents, it is not for this Court to examine those documents for the first time to come to any conclusion in the case. Parties are reserved liberty to urge all the grounds available to them before the trial Court.

The writ petition is, therefore, allowed in part by setting aside the orders under challenge. The matter is remitted back for fresh consideration by the trial Court keeping in mind the observations made above.