Shivaraj vs Shamrao and Others

G. Narendra, J.—This appeal is directed against the order passed by the Court of the Principal Senior Civil Judge and CJM, Bidar in O.S.

No. 78/2014 on an interlocutory application filed therein under Order 39 Rules 1 and 2 of the CPC praying for grant of an order of temporary

injunction to restrain the defendants from interfering with the plaintiffs possession and enjoyment of the suit land bearing S. No. 28/2 measuring 7

acres 21 guntas situated in Fatehpur village of Bidar pending disposal of the suit.

The parties are referred to by their rankings in the trial Court.

The appellant before this Court is the first defendant and the plaintiff is the first respondent herein and the second defendant is the second

respondent before this Court.

The case of the plaintiff is that the defendants are the brothers of his wife and that their father had executed a sale deed on 24.6.1989 for a

valuable consideration, being a sum of Rs. 22,000/-, and the first defendant had joined the execution of the sale deed as a consenting witness and

the mother of the defendants had attested to the sale deed as a witness. It is the further case of the plaintiff that pursuant to the sale deed,

proceedings for mutation of the revenue records were initiated and pursuant to the mutation proceedings, name of the plaintiff came to be entered

in the record of rights and in the other revenue registers.

In support of his claim the plaintiff has placed on record the certified copy of the sale deed, mutation proceedings bearing No. 2 dated 16.9.1989,

certified copy of the R.OR for the year 1983-84 to 1987-88 of Anneppa @ Annarao s/o. Sharnappa Biradar i.e. his father-in-law and vendor.

Certified copy of the R.O.R for the period 1989-90 to 2001-02 depicting the name of the plaintiff, computerised extract of the R.O.R. for the year

2001-02 to 2013-14 (13 years) reflecting the name of the plaintiff in the owners column. He has also produced a copy of the FIR and xerox copy

of the complaint registered as Crime No. 95/2014 dated 16.6.2014 by the jurisdictional police versus Ashok i.e. the second defendant herein and

others. The certified copy of the katha extract in respect of S. No. 58/2 in the name of Shamarao s/o. Nagappa dated 5.5.2014 and a copy of the

receipt issued by the village accountant, copy of the receipt issued by the PKPS Bank Ltd. for having raised loan and for having remitted the loan

amount.

Resisting the same the first defendant appeared on the first date of hearing itself along with his counsel and thereafter filed his objections to the I.A.

and also his written statement.

After hearing the parties the Trial Court has set down three parameters which a party seeking injunction must satisfy. The trial Court on

consideration of the sale deed and the revenue records has concluded that the plaintiff has made out a prima facie for grant of injunction. The Trial

Court has also relied upon the provision of Section 133 of the Karnataka Land Revenue Act to draw a presumption in favour of the plaintiff,

whose name is reflected in the revenue records. It has also dwelled over the assertions of the first defendant and has concluded that no

documentary evidence has been produced by the defendant to refute the claim of the plaintiff. It has also taken note of the defendant''s contention

that the sale deed is a sham document and that the plaintiff is not in actual possession of the suit property. In this regard it has also held that a mini

trial cannot be held to go into the allegation by the defendant that the sale deed is a fabricated document at the present stage. Based on the above

discussion the court proceeded to pass the order injuncting and restraining the defendants from interfering with the plaintiffs possession of the suit

property.

Matter is listed for admission. Service is complete. Though the second defendant, who is the second respondent herein, has engaged a counsel,

there is no representation on his behalf. The counsel for the plaintiff, first respondent, has filed a detailed statement of objections and has also

produced certain documents, being the copy of the sale deed, copy of the order passed by the Principal JMFC-II Court, Bidar in Crime No.

95/2014 enlarging the defendants and others on bail, copy of the FIR and the complaint.

The first defendant has produced the order sheet in the above suit and also the certified copy of the interim order granted by the same court in

O.S. No. 76/2014 filed by the second defendant herein wherein the trial Court had granted an ad-interim injunction restraining the plaintiff from

alienating the suit schedule property till the disposal of I.A. on merits. Thus the present suit O.S.NO.78/2014 is also before the same Court.

With the consent of the counsel on both sides, the matter is taken up for final disposal.

The counsel for the appellant/first defendant challenges the impugned order on following grounds :--

1) No notice has been ordered and served upon the second defendant prior to the passing of the impugned order;

2) That the first defendant alone voluntarily appeared before the Trial Court on the first date of hearing itself and has filed his statement of objection

to the I.A. and written statement. In view of the filing of the written statement the court ought not to have granted the temporary injunction.

3) He further states that the interim order is bad as the very same Court having granted the interim order in favour of the second defendant in the

suit preferred by him i.e. O.S. No. 76/2014, it ought not to have granted the interim order in the present suit i.e. O.S. No. 78/2014.

He would submit by the interim order of non-alienation, possession of the second respondent is protected and the said fact though brought to

the notice of the trial Court, it has not been taken into consideration. He would also find fault with the order on the ground that the same court

cannot pass two inconsistent orders in respect of the same subject matter. He would also state that the interim order is vitiated by non-application

of mind because the impugned order does not reflect any discussion on the aspect of pendency of the suit filed by the second respondent. He

would also state that two affidavits have been filed under Order 19 Rules 1 and 2 to demonstrate the possession of the defendants over the suit

schedule property. He would submit that the court has passed the order in a hurry and hence it is vitiated by non-application of mind.

Per contra, the counsel for the plaintiff/first defendant herein would submit that the second defendant is already served by RPAD after passing

of the interim order. He would point out that the interim order granted earlier in favour of the second defendant is only to the limited extent of

restraining the plaintiff from alienating the property. He would submit that the plaintiff has no intention of alienating the property and that the grant of

such an order does not in any manner come in the way of the court granting an order of injunction restraining the second respondent and the first

defendant from interfering with the possession and enjoyment of the suit property by the plaintiff. He would also state that the plaintiff is an

agriculturist and that the sale has been witnessed by the mother of the defendants and the first defendant, appellant herein, is a consenting party to

the said sale deed. He would submit that the executant, Anna Rao- father of the defendants, passed away in the year 2000 and it is nearly 15 years

since he passed away, there has not been a whisper of protest by the defendants. He would further state it is almost 25 years since the sale deed

has been executed and hence it is not open to the defendants to contend otherwise. He would also state even assuming that the interim order has

been passed before service of notice on defendant No. 2, it would in no way impinge on the jurisdiction of the trial Court to pass an order and it

has to be treated as an ex parte order of temporary injunction as against the 2nd defendant only, because the first respondent was represented

before the Court and also present before the Court on the first hearing itself. He would further state that a further avenue is available to the second

respondent under Order 39 Rule 4 of CPC to seek vacating of the interim order on the ground that he has been not heard before passing the

order.

In view of the above discussion the short question that arises for consideration is,

Whether the order of the Trial Court granting injunction is just and reasonable in the facts and circumstances of the case ?''

It is an admitted fact that the sale deed has been duly executed and registered with the authorities. There is no whisper, either that the sale deed

is fabricated nor is there denial of the execution of the sale deed. On the contrary the first defendant in his written statement has admitted execution

of the sale deed but has clarified the admission stating that the sale deed is a sham deed and a nominal one and was executed as surety for a hand

loan of Rs. 22,000/-. Thus in effect prima facie the said averment amounts to an admission of sale deed and for a valuable consideration. Though

the consideration is alleged to be a hand loan, except for the self serving statement of defendant, no other material is presently before this Court to

prima facie demonstrate that it is hand loan. Also whether at the trial stage it is open for the court to enter upon and render decision on the said

plea is a moot point. The said plea requires pleading and substantial evidence to demonstrate the same as a fact and that can be achieved only

during trial. The interim relief sought being for an order of restraint, it reflects some urgency. Further the civil dispute has also led to a criminal

complaint being filed and the parties have also obtained bail. The police have registered a criminal case against the defendants and others. This fact

also justifies grant of an injunction order to prevent any aggravation of the situation. That apart, the plaintiff has also placed on record the revenue

record in the form of mutation entries and record of rights and tax receipts. He has also placed the bank receipts to show that he has acted upon

the sale deed. The trial Court has rightly relied upon the provision of Section 133 of the Karnataka Land Revenue Act which draws a presumption

in favour of the party whose name is entered in the revenue records. Much stress was laid on lack of notice to the second defendant and the failure

of the court to take into consideration and elucidate as to why the present interim order was granted, when before the same an interim order

restraining the alienation granted in the earlier suit i.e. 76/2014 preferred by the second respondent.

These contentions requires to be appreciated and rejected only on the short ground, that the second defendant, who is arrayed as the second

respondent herein, though represented by a counsel, has not thought it fit to agitate the said order. That being so, it has to be presumed that the

second defendant is not aggrieved. Apart from that, the interim orders passed by the Court, in the suit preferred by the second defendant and the

one by plaintiff, are rather different in nature and have been granted in the facts and circumstances of each case. The orders do not militate against

each other. The contention of the first defendant that injunction against the plaintiff restraining alienation amounts to protecting the possession of the

suit property is too lame an argument and unsustainable and by no stretch of imagination, it can be said that the interim order passed in O.S. No.

76/2014 protects the possession of the second defendant or in any manner injuncts the plaintiff from possessing and enjoying the suit property.

In view of the above discussion this Court does not find any reason which necessitates interference at the hands of this Court. Hence, the

appeal is rejected at the admission stage itself as it does not merit further consideration at the hands of this court.

The counsel for the parties submit that the Trial court may be directed to expeditiously consider and dispose of the suits keeping in view the

relationship of the parties and also to avoid further unpleasantness.

The request appears to be reasonable. In that view of the matter the trial Court is directed to expeditiously dispose of the suit as the pleadings

are virtually completed. The pleadings of the respective parties is virtually complete and the second respondent has also placed his case in form of

O.S. 76/2014. The appellant/first respondent has filed his written statement. The plaintiff has stated his case in O.S. 78/2014. The subject matter

being the same in both the suits and reliefs prayed also being more or less the same, it would meet the ends of justice if the said suits are

considered and disposed of expeditiously. Hence, the trial Court is directed to dispose of the above suit on or before 31.12.2015.