Sri. Krishna S. Tavildar vs Ravindra Rao

B. Manohar

Appellant is the plaintiff in O.S No. 7451/2008 being aggrieved by the order dated 28-3-2011 passed by the XXII Additional City Civil Judge, Bangalore dismissing the I.A.No. I filed under Order 39 Rules 1 and 2 of the CPC and allowing I.A.No. I/2010 filed by the defendant under order 30 Rule4 of CPC vacating exparte order of injunction has filed this appeal. The brief facts of the case are as follows:

The appellant/plaintiff filed a suit seeking for permanent injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the suit schedule ''B'' property and also for other reliefs. He also filed an application under Order 39 Rules 1 and 2 of the CPC seeking for temporary injunction restraining the defendant from interfering with the peaceful possession of the ''B'' schedule property. In the plaint, it is contended that the ''B'' schedule properly is the site bearing No. 5 measuring 30" x 40" formed out of the land bearing Sy.No. 58/1 measuring 1 acre situated at Jarakabandekaval village. Yelananka Hobli, Bangalore North. It is further contended that the land bearing Sy.No. 58/1 in all measures 4 acres 20 guntas, which belonged to one Syed Sardar. He sold 3 acres of land in favour of one Ramachandra Rao and remaining 1 acre of land in favour of Krishnakumar as per the registered sale deed dated 15-7-1992. The said Krishnakumar executed a registered general power of attorney in favour of Madivadanam who under the said power of attorney executed a registered sale deed in respect of 1 acre of land in lavour of Smt. Vatsala Natarajan on 9-8-2001. Thereafter. Vatsala Natarajan got the land converted for non-agricultural purpose from the competent authority on 9-7-2004. then she bequeathed the said land in favour of her son Sachin Kumar under the registered Gift Deed dated 22-1-2004. Thereafter, both Vatsala Natarajan and her son Sachin Kumar sold the said land in favour of the plaintiff as per the registered sale deed dated 14-12-2004. Since then the plaintiff has been in possession and enjoyment of 1 acre of land. When such being the position, the defendant tried to put up construction in site No. 5, though he has no right, interest whatsoever in respect of the said land. Pursuant to the sale deed dated 14-12-2004. the plaintiff became the absolute owner of 1 acre of land and the defendant has no right to put up construction in site No. 5 formed out of the Sy.No. 58/1 measuring 1 acre of land and sought for temporary injunction against the defendant.

In pursuance to the notice issued by the Court below, the defendant entered appearance and tiled his written statement and contended that Smt. Vatsala Natarajan purchased 1 acre of land as per the sale deed dated 9-8-2001 from the Power of Attorney Holder of Krishnakumar and she formed a layout and sold site No. 5 in favour of Smt. Amuda Priya as per the registered sale deed dated 28-11-2003. The defendant in turn purchased the said site from Amuda Priya as per the registered sale deed dated 12-10-2007, since then the defendant has been in possession and enjoyment of the ''D'' schedule property. After obtaining the sanctioned plan from the competent authority, he is putting up construction and moulding work of the first floor is already over. Smt.Vatsala Natarajan, even prior to the alienation of the land to the plaintiff, had alienated some of the sites in favour of the prospective buyers. Further there was an agreement dated 14-2-2004 entered into between Vatsala Natarajan and the plaintiff herein. The recital in the said agreement is that some of the sites have been alienated by Vatsala Natarajan and she has to pay a sum of Rs. 3,00,000/- to the plaintiff. The recital in the agreement clearly discloses that Vatsala Natarajan bad already alienated six sites in respect of the prospective buyers. From the date of purchase, the defendant has been in possession of the properties. Hence the plaintiff is not entitled for any injunction and also contended that there is no material evidence on record to show that the plaintiff has purchased the property in question. The plaintiff has obtained an interim order suppressing the material facts and also made an application in I.A.No. 1/2010 under order 39 Rule 4 of CPC for vacating the exparte interim order.

On the basis of the pleadings of the parties, the Trial Court framed necessary issues and the documentary evidence was made available to the court. The court after examining the pleadings of the parties and the documentary evidence came to the conclusion that pursuant to the sale deed executed by Vatsala Natarajan in favour of Smt. Amuda Priya on 28-11-2003, Amuda Priya became the absolute owner in respect of site No. 5. Subsequently, the defendant purchased the said site on 12-10-2007 and The defendant has been in possession and enjoyment of the said property and putting up construction. Hence, the balance of convenience is in favour of the defendant and if the interim order is continued, the defendant will be put to irreparable loss and injury and the plaintiff has not made out a prima facie case for grant of interim order. Accordingly vacated the exparte interim order granted and dismissed the I.A. filed under Order 39 Rules 1 and 2 of CPC. Being aggrieved by the said order, the plaintiff has preferred this appeal.

Sri.A.S.Mahesha, learned counsel appearing for the appellant contended that the order passed by the Trial Court is contrary to law. Much prior to the alienation of site No. 5 in favour of Amuda Priya. he has entered into an agreement of sale with Vatsala Natarajan to purchase the said property. Further, as per the registered sale deed dated 14-2-2004, he has purchased the property and became the absolute owner and the defendant cannot put up any construction. The Trial Court has not taken into consideration the necessary documents produced by the plaintiff and sought for setting the order passed by the Trial Court.

On the other hand, Sri. S. Gajendra, learned counsel appearing for the respondent argued in support of the order passed by the Trial Court and contended that Vatsala Natarajan is the absolute owner of 1 acre of land in Sy. No. 58/1 as per the registered sale deed dated 9-8-2001. She formed a layout and sold some of the sites to the prospective buyers, out of which, Smt. Amuda Priya has purchased site No. 5 on 38-11-2003. Thereafter, she gifted the remaining land in favour of her son on 22-1-2004. Thereafter, both Vatsala Natarajan and her son alienated the remaining portion of the property in favour of the plaintiff. Hence the plaintiff has no right in respect of the site alienated by Vatsala Natarajan. After purchase of the site on 12-10-2007, the defendant is putting up construction after obtaining necessary license and sanctioned plan from the competent authority. Suppressing the material facts before the court, the plaintiff obtained an interim order. Subsequently, after production of necessary documents, the court below vacated the interim order and hence, sought for the dismissal of the appeal.

I have carefully considered the arguments addressed by the learned counsel for the parties; perused the pleadings of the parties and the documentary evidence produced by the parties.

Having heard the learned counsel for the parties, the only point that arise for consideration in this appeal is

Whether the appellant has made out a case to interfere with the order passed by trial court.?

It is not in dispute that 1 acre of land in Sy.No. 58/1 was originally purchased by Krishnakumar on 15-7-1992: the power of attorney holder of Krishnakumar sold the said 1 acre of land in favour of Smt. Vatsala Natarajan on 9-8-2001. The record clearly disclose that Vatsala Natarajan formed a layout and sold some of the sites to the prospective buyers and the vendor of the defendant purchased site No. 5. The plaintiff subsequently, purchased the said site from Vatsala Natarajan and her son on 14-2-2004. Much prior to the purchase of the said property by the plaintiff. Vatsala Natarajan had already sold six sites formed in Sy.No. 58/1 to the prospective buyers and she cannot alienate the said properly once again in favour of the plaintiff. At the most, the plaintiff can purchase the remaining extent, of land. The records further disclose that after purchasing the site No. 5 on 12-10-2007, the respondent is in possession and he is putting up construction and the building has come upto the first floor level. Hence the balance of convenience is not in favour of the appellant. The respondent has been in possession of site No. 5 from the year 2007 and putting up construction. If any interim order is granted, it would adversely affect the interest; of the respondent. Whether the appellant has right over the property purchased by the defendant has to be decided after trial and at this juncture, the appellant is not entitled for any interim order. The Trial Court after considering the necessary documents vacated the exparte interim order granted in I.A.No. I/2010 filed by the defendant. There is no ground to interfere with the order passed by the Trial Court. Further, it is made clear that any construction made by the defendant is subject to result of the suit. The defendant is subject to result of the suit. With the above observations, the appeal is dismissed.

The observations made in the course of the order shall not be taken into consideration for final disposal of the matter. to consideration for final disposal of the matter.