Sri M.J. Shivani vs Sri Venkateshappa

A.N. Venugopala Gowda, J.—With the consent of learned Counsel on both sides, appeals were taken up for final hearing. Since common questions of facts and law are involved, the appeals were heard together. Defendant in the suit is the Appellant. Respondent is the Plaintiff in the suit, pending before the Trial Court. For convenience, the parties would be referred to with reference to their rank in the suit.

These appeals are by the Defendant, questioning the separate orders passed on I.A.1 and, I.A Nos. 2 & 4, whereby and whereunder, I.A Nos. 1 & 2 filed by the Plaintiff was allowed and the parties were directed to maintain status-quo of suit property till disposal of the suit and the Defendant was restrained from changing, the nature of suit schedule property. Consequently, I.A.4 filed by the Defendant to vacate the exparte order of temporary injunction was rejected.

The Plaintiff contends that, he is the absolute owner of the property bearing Sy. No. 4/3 measuring 1 acre 18 guntas situated at Haralur Village, Varthur Hobli, Bangalore East Taluk, which originally belonged to A.Ramaiah, the same having been granted in his favour as per an order dated 16.03.1968 of Special Deputy Commissioner. After the death of A.Ramaiah, the Plaintiff acquired right and title over the schedule property and cultivated the same as owner in possession and that mutation was changed to his name. The Plaintiff has stated that, his father entered into an agreement of sale of the suit property with one S.Banerjee, but the sale transaction was not completed and that the contract was terminated as per the agreed terms between the parties. The Plaintiff has stated that, in view of the agreement to sell, at the instance of S.Banerjee, his father executed a General Power of Attorney (GPA) without knowing the contents of the documents in favour of Smt. Indrani Banerjee. Plaintiff and Ors. filed O.S 7660/2002 in the City Civil Court, Bangalore, to restrain the Defendant from interfering with the possession of suit property. The Plaintiff has stated regarding O.S 3941/2003 filed by the Defendant and its dismissal. Plaintiff contends that, he is in physical possession and enjoyment of suit property without interruption and having learnt that the Defendant is in the process of changing the nature of suit property by making an application for conversion of the suit from agricultural to non-agricultural purpose, an objection was raised and the process of conversion was withheld. Plaintiff alleges that, the Defendant attempted to dispossess him from the suit property and hence, the suit was instituted for the following reliefs:

a) To declare that the Plaintiff along with the other legal heirs of Late A.Ramiah are the absolute owners of the suit schedule property with right and title and in the peaceful possession and enjoyment of the same.

b) The General Power of Attorney dated 28.10.1992, registered as document No. 644/92-93 as sham document and not binding on the Plaintiff.

c) The General Power of Attorney dated 21.07.1995, registered as document No. 214/95-96 as sham document and not binding on the Plaintiff.

d) To declare that the Sale Deed dated 26.06.2002, registered as document No. 3564/02-03 in favour of the Defendant as sham document and not binding on the Plaintiff.

e) To declare any subsequent transactions to the illegally fraudulently executed sale agreement not binding on the Plaintiff.

f) To issue an order of permanent injunction restraining the Defendant, his legal heirs, agents, henchmen, labourers or anybody claiming through him from trespassing and in any way interfering with the Plaintiffs peaceful possession and enjoyment of the suit schedule property.

g) To award the cost.

h) Pass such other relief as the Hon''ble Court deems fit and cost of the suit in the circumstances of the case and in the interest of justice, equity and fairplay

The Defendant/Appellant filed written statement and objection statement to the applications of the Plaintiff, wherein, he has admitted that, the suit property originally belonged to A.Ramaiah and subsequently entered into an agreement of sale with one S.Banerjee. According to the Defendant, after receiving the entire sale consideration amount, possession of the property and also the original documents were delivered to S.Banerjee and to secure the interest of S.Banerjee, A.Rarnaiah alongwith the Plaintiff, executed a GPA dated 28.10.1992, which was registered in favour of Smt. Indrani Banerjee, W/o. S. Banerjee. According to the Defendant, S.Banerjee nominated the Defendant and his brother H.J.Shivani, to be the purchasers of the suit property and in pursuance thereof, after receiving the entire sale consideration amount from him and his brother, delivered vacant possession and the original title deeds and the GPA holder Smt. Indrani Banerjee, delegated all the powers under GPA dated 21.07.1995 in favour of M.J.Shivani and H.J.Shivani under a registered document. According to the Defendant, H.J.Shivani acted as GPA holder of A.Ramaiah and the Plaintiff, as delegatee of Smt. Indrani Banerjee and executed a sale deed dated 26.06.2002 in his favour and that the possession of the suit property was handed over, whereafter, the entries in respect of suit property, in the revenue records, were transferred to his name and that, he is in possession and enjoyment of the suit property as the absolute owner. The claim of the Plaintiff over the suit propervy has been denied. A reference has been made with regard to an application filed for conversion of the suit property, its acquisition by the Government showing his name, for implementation of the scheme "Hi-Tech City", the subsequent de-notification and withdrawal of O.S.3941/2003. A reference has been made to O.S 7660/2002 filed by the Plaintiff, its dismissal and also the proceedings before the Revenue authorities i.e., with regard to the mutation proceedings.

Plaintiff filed I.A Nos. 1 & 2 seeking temporary injunction orders, noticed supra. An exparte order of temporary injunction having been granted, the defencant filed I.A.4, for vacating of the exparte temporary injunction order. The Trial Court allowed I.A Nos. 1 & 2 and consequently has rejected I.A.4. Being aggrieved, the Defendant has filed these appeals.

Sri Abhivav Ramanand, learned advocate appearing for the Appellant, firstly contended that, the learned Trial Judge has failed to consider, whether a prima-facie case has been made out for grant of temporary injunction. Learned Counsel submitted that, without a prima-facie case being made out, the Plaintiff having not established his possession and enjoyment over the suit property, which he claim to be an agricultural land, the RTC and other revenue records also not reflecting his name, has erred in passing the impugned orders. Secondly, the Trial Court has posed to itself irrelevant and inconsequential questions and has proceeded at a tangent, in determining the issue as to whether the Plaintiff is in possession or not. Learned Counsel submitted that the questions raised have not been correctly appreciated with reference to the materials on record. He further submitted that, instead of examining the case of Plaintiff, the Trial Court on account of misdirection adopted, ignoring the relevant materials placed on record by the Defendant, has passed the impugned order, which causes not only prejudice, but undue hardship to the Appellant. Learned Counsel submitted that, the material on record has not been correctly appreciated and that the impugned orders are arbitrary, perverse and capricious. Learned Counsel further submitted that, the conduct of the Plaintiff has not been kept in view, while passing the impugned orders, which if allowed to continue to operate, would cause rreparable loss and injury to the Defendant.

Sri A.Chandra Chud, learned Counsel appearing for the Respondent/Plaintiff, on the other hand contended that, the Trial Court in exercise of its discretionary jurisdiction, having considered the relevant aspects such as prima facie case, balance of convenience and irreparable loss & injury, passed the impugned orders, which being neither perverse nor illegal, interference is not called for. Learned Counsel submitted that, the suit is at the stage of recording of Plaintiff''s evidence and the same may be directed to be decided expeditiously. Learned Counsel submits that, if there were to be any change in the nature of the suit property or any act of encumbrance by the Defendant, the same would not only lead to delay in disposal of the suit, but also multiplicity of the proceedings and in the circumstances, the appeals may be dismissed.

Sri Abhinav Ramanand, by filing an affidavit dated 15.07.2011 of the Appellant, submitted that, the improvement, which may be made on the suit property would be at the risk and cost of the Appellant and that the Appellant would not claim any equity. Learned Counsel submitted that, the affidavit of the Appellant may be placed on record and appropriate order passed. The material part of the said affidavit is to the following effect:

I submit and undertake that if ultimately the Respondent/Plaintiff is declared to be the owner of the Suit Schedule Property by decreeing the suit in O.S. 1038/2009, I shall not plead or claim any equities in respect of the improvement and development made over the Suit Schedule property.

(underlining is by me)

In view of the rival contentions and the record of the case, which I have perused, the point for determination is:

Whether the impugned orders are arbitrary, perverse and call for interference?

Prima-facie the entering into of an agreement of sale by the Plaintiffs father with S.Banerjee, execution of GPA in favour of Smt. Indrani Banerjee is not in dispute. The Plaintiff has sought for a declaration that the registered GPAs dated 28.10.2002, 21.07.1995 and the registered sale deed dated 26.06.2002 as sham documents and not binding on him. The Plaintiff has not placed on record, any document evidencing his possession and enjoyment of the suit property, as on the date of filing of the suit. The RTC produced by the Defendant snows the name of Defendant both in column No. 9 and 12 The Plaintiff has not even produced the Kandayam payment receipts in respect of the suit property, which according to him is an agricultural land.

The Plaintiff has filed an appeal against the Defendant, before the Assistant Commissioner, questioning the change of mutation. The appeal was dismissed by an order dated 03.09.2004. The katha of the suit property stands in the name of the Defendant. The suit property was one of the items of property, which was acquired by the Government of Karnataka for an improvement scheme for formation of a layout called "Hi-Tech City and road between Sarjapur Road and Hosur Road by the Bangalore Development Authority. The acquisition notifications issued in respect of the suit property show the name of the Defendant as the kathedar/anubhavdar. The acquisition was dropped and the property was de-notified on 21.09.2007 and the said notification shows the name of the Defendant as kathedar/anubhavdar. The Defendant and his brother, questioned the said acquisition of the suit property in WP 3092/2006 and the writ petition was allowed on 04.11.2008.

The Trial Court noticed the said documents, proceedings and the orders. By observing that, the suit property being an agricultural land, it held that, instead of passing any order against the Defendant, it is proper to issue direction to both the parties to maintain status-quo in suit property till the disposal of the suit and the Defendant was restrained from changing the nature of suit property.

Having carefully considered the findings of the Trial Court made on the applications for grant of temporary injunction, although the Trial Court directed the parties to maintain status-quo, and restrained the Defendant from changing the nature of suit property till the disposal of the suit, such orders has been passed despite the Plaintiff failing to establish prima facie case to obtain such orders. 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, if 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.

The case on hand when examined with reference to the settled principles, more particularly the documents noticed supra and the nature of reliefs prayed in the suit, in the absence of prima-facie material/s produced showing the possession and enjoyment of the suit property by the Plaintiff as on the date of filing of the suit, the impugned orders are arbitrary. The Trial court has failed to properly consider the documents placed on its record by the Defendant and hence, the impugned orders are perverse. The very fact that the Plaintiff questioned the entries made in the revenue records, showing the name of the Defendant, by filing an appeal before the Assistant Commissioner and failed, thereafter the suit has been instituted without their names being shown in the RTC either in column No. 9 or 12, the Plaintiff is not entitled to the benefit of an order or temporary injunction. In my opinion, the findings recorded by the learned Trial Judge on the crucial factors like prima facie case, balance of convenience and equity, are not based on a correct and balanced consideration of various facets of the case, more particularly, the documents placed on record of the suit by the Defendant. In respect of some of the documents produced by the Defendant, there can be presumption, in the absence of the rebuttal material/s, having been placed on record by the Plaintiff. The impugned orders though discretionary in nature, having been passed without material support, is arbitrary & perverse and cannot be sustained.

In the result, these appeals are allowed and the impugned orders are hereby set-aside. I.A Nos. 1 & 2 filed in the suit shall stand disposed of as follows:

(i) The Defendant, if were to undertake any kind of developmental act on the suit property, the same shall be at his risk only. Neither the Defendant nor any person claiming through or under him, shall be entitled to claim any- kind of equity in respect of the suit property, in case the Plaintiff succeed in the suit. Any action of the Defendant in respect of the suit property is made subject to the ultimate decision of the pending suit.

(ii) If the Defendant/Appellant were to create any third party interest of whatsoever nature 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". The third parties, who may enter into any kind of transaction in respect of the suit property with the Defendant, shall be doing so at his/their risk and shall be bound by the undertaking given by the Defendant noticed supra.

(iii) The affidavit dated 15.07.2011 filed by the Appellant/Defendant, not to claim any equity in case the Plaintiff succeed in the suit, is placed on record.

(iv) Considering the facts and circumstances of the case and the Karnataka (Case Flow Management in Sub-Ordinate Courts) Rules, 2005, since the suit being at the stage of recording Plaintiff''s evidence, the Trial Court is directed to decide the suit expeditiously and before 31.03.2012.

(v) In order to enable the Trial Court to dispose of the suit within the said period, the Plaintiff is directed to adduce and complete his side of evidence before 01.10.2011. The Defendant shall adduce and complete his side of evidence before 07.01.2012.

(vi) It is made clear that, whatever observation/findings that have been made by me in this judgment would not mean to prejudice the case of the Plaintiff in the pending suit.

(vii) The Trial Court should independently decide the suit in accordance with law without being influenced by any of the observation/findings in this judgment.

(viii) In the circumstances of the case, parties are directed to bear their respective costs.