Thimmakka and Others vs Mahesh Kumar Pansari and Others

A.V. Chandrashekara, J.—The defendant of an original suit bearing O.S. 8947/2012 on the file of Court of IX Addl. City Civil and Sessions Judge, Bangalore have filed this appeal under Order 41 Rule 1(r) of CPC since, the Trial Court has granted an order of injunction in favour or respondent No. 1, plaintiff by virtue of an order dated 3.5.2014.

Parties will be referred to as plaintiff and defendant Nos. 1 to 4 as per their ranking before the Trial Court.

Plaintiff has filed the suit for relief of permanent injunction in respect of vacant site bearing BMP Katha No. 4563 (site Nos. 172 and 173) of Kamakshipalya New Extension, Hamlet of Saneguruvanahalli, Yeshwanthpur Hobli, Bangalore measuring (41+43) feet/2x60 feet. The said property is situated in Saneguruvanalli Yeshwatpur, Bangalore. The plaintiff is stated to be in lawful possession of the property having purchased the same through a registered sale deed dated 12.6.1981. Subsequent rectification deed dated 30.1.1982 was executed in his favour. Subsequent to purchase made by him, concerned Panchayat had incorporated his name in the panchayat records as kathedar and BBMP has collected betterment charges from him. Since defendant Nos. 1 to 4 started to interfere with his peaceful possession and since defendants attempted to put up construction that too without obtaining any permission from BBMP, he filed the suit for relief of permanent injunction.

Since, some differences had occurred in the family of defendants, a Civil Suit came to be filed by the mother and brother of defendant No. 4 before the City Civil Court in O.S. 616/1984 for declaration of title and possession relating to 3.2 acres of land in Sy. No. 66/1A-2 of Saneguruvanahalli. The said suit was dismissed on 10.10.2002 as against which a regular appeal was filed in RFA 1227/2002 before this Court.. On joint memo filed by the parties before this Court, the said appeal was disposed of giving liberty to get the land surveyed with the assistance of ADLR within 3 months. ADLR is stated to have conducted survey. Defendant No. 1 is stated to have made an attempt to get her name incorporated in the revenue records relating to site in question. The plaintiff is stated to have put up a compound around the schedule property along with a gate.

During the pendency of the suit, an application came to be filed under Order 39 Rules 1 and 2 of CPC by the plaintiff seeking an order of temporary injunction. Defendant Nos. 1 to 3 have filed detailed written statement denying all the material averments. Defendants have filed objections to the said application opposing the application filed under Order 39 Rules 1 and 2 of CPC.

According to defendant Nos. 1 to 3, suit is not maintainable either in law or in facts. Plaintiff has suppressed the material facts from the purview of the Court. It is further averred that the brother of the plaintiff is party to the previous appeal filed in RFA 1227/2002 and survey was done pursuant to the order of the Trial Court. Demarcation of the property has been properly done. The plaintiff is stated to have suppressed the execution petition in Ex. 994/2012. The plaintiff is not stated to be in possession of the property at all. Thus, the defendants have requested the Court to dismiss the application.

After hearing the arguments of the learned counsel for the parties and perusing the records, the Trial Court has allowed the application filed under Order 39 Rules 1and 2 of CPC vide I.A. 6 on 3.5.2014. The operative portion of the order is as follows:

"The defendants 1 to 4 are hereby directed to maintain status quo in respect of schedule property until further orders of this Court. Accordingly I.A. 6 stands disposed of.". 8. The learned counsel for the appellants has argued that the suit of the plaintiff is not maintainable since his brother who has executed sale deed in his favour himself was a party in appeal No. RFA 1227/2002 and defendant Nos. 1 to 4 have taken possession of property that too after getting the survey done. It is also contended that at the best the plaintiff should have obstructed when the plaintiff took possession on the basis of the survey. It is further argued that the schedule property falls well within the purview of demarcation by the survey.

After hearing the learned counsel for the parties, the learned Judge has framed following points for consideration:

"a) Whether the plaintiff has made out prima facie case in respect of suit schedule property?

b) Who would be put to irreparable loss or legal injury either in case of grant of temporary injunction or its refusal?

c) In whose favour, the balance of convenience lies?

d) What order?"

The learned Judge of the Trial Court has ultimately answered issues 1 to 3 in favour of the plaintiff and application has been partly allowed.

What is argued before this Court by the learned counsel for the appellants is that the order of status quo could not have been passed on an application filed under Order 39 Rules 1and 2 of CPC and that too order so passed will not be in force till the disposal of the suit and that the said order will be in force until further orders passed by the Trial Court. Therefore, he has argued that the matter will have to be considered by the Trial Court if the defendants move for vacation of the said order.

Admittedly, plaintiff has described the schedule property in his plaint. It is stated to be bearing BMP Khata No. 453 (site Nos. 172 and 173) of Kamakshipalya New Extension, Hamlet of Saneguruvanahalli, Yeshwanthpur Hobli, Bangalore. Properties existed on all the four sides of the schedule properties and the same has been clearly mentioned in the schedule appended to the plaint. It is the case of the plaintiff that he has purchased the said property through a registered sale deed dated 7.7.1981. The very original sale deed is produced before the Trial Court. Mohan Kumar Pansari is the brother of one Sathyanarayan Pansari. On the basis of the power of attorney stated to be executed by Puttarangamma w/o C.N. Putta Narasimhaiah in favour Sathyanarayana Pansan, he has executed the sale deed relating to property in question in favour of his brother Mohan Kumar Pansari.

It is mentioned in the said sale deed dated 12.6.1981 that Puttarangamma was the owner and kathedar of the schedule property based on an order passed in O.S. 452/1964 dated 29.1.1969 which was pending on the file II Addl. Civil Judge, Bangalore. Rectification deed had been executed by Sathyanarayan Pansan in favour of Mahesh Kumar Pansari on 30.1.1982 describing the exact schedule of the property. On the basis of the same, name of Mahesh Kumar Pansan came to be incorporated in the Panchayat records of Saneguruvanahalli Panchayat and all the payment register extract mentioned for the year 1981-82 is produced before the Trial Court. Receipts for having paid tax on 18.6.1981 and 21.12.1982 and 25.5.2000 have been placed on record. By virtue of receipt bearing 47474 dated 25.5.2000, Mahesh Kumar Pansan has paid Rs. 28,000/- has betterment charges relating to property in question. Subsequently, property in question has come within the purview of Bangalore Municipal Corporation and name of Mahesh Kumar Pansari has been incorporated as kathedar and katha certificate is produced. He has produced the certificate for having paid the same for a sum of Rs. 2,000/- on 3.6.2000 for arrears of tax for the year 1999-2000.

The name of Mahesh Kumar Pansan is further incorporated in the BBMP records of collecting a sum of Rs. 4,127.50/- for arrears of tax for the period of 1995-1996 to 2000-2001 and BBMP has given pass book to that effect. Nil encumbrance certificate has been produced.

On an application filed by Thimmakka, defendant No. 1 herein, BBMP to incorporate her name relating to land in Sy. No. 16-A/2 of Saneguruvanahalli Village, she had been called upon to produce documents to substantiate her case.

Puttarangamma was the owner of the schedule property and she was 1st defendant in O.S. 606/84 which culminated in a compromise in R.F.A. 1227/02. By the time the compromise was entered into between the parties in R.F.A. 1227/02, she had already executed the sale deed through her power of attorney holder on 12.6.1991 and rectification deed was executed on 30.1.1982. The defendants had made an attempt before the BBMP to get the khatha changed in accordance with the compromise entered into in R.F.A. 1227/02. The authorities had refused to change khatha in favour of the defendants. Therefore the defendants had filed a writ petition before this court in W.P. 19633/13. The plaintiff was the 4th respondent in the said writ petition which was disposed of on 6.6.2013.

The main stand taken by the petitioners in the said writ petition is that they had acquired title to the property under the compromise decree dated 12.9.2007 in R.F.A. 1227/02, and on the basis of the said compromise, they had requested the court to set aside the order of the BBMP. But in paragraph 4 of the order, it is specifically observed by this court that respondents 3 to 6, purchasers of sites, were not parties in R.F.A. 1227/02 and any decree would not be binding in the circumstances.

In paragraph 5, a request was made at least to allow the writ petitioners to make a fresh application to the extent of the undisputed portion in Survey No. 166/A2 and that was accorded. The learned trial judge has made a detailed analysis of all the materials placed on record b the parties. He has further held that the construction proposed to be put up by the defendants is without any authorization or permission from the authorities and such construction cannot be countenanced in any manner. Learned judge has held that the plaintiff has an arguable case both on facts as well as on law and that a clear prima facie case is made out. It is further held that the court has to examine delicate questions during the course of recording evidence and hearing arguments. He has felt that if an order of temporary injunction is not granted, it would be as good as allowing the defendants to put up the construction without obtaining any permission from the statutory authorities and that would be subverting the legal process. At the same time, learned judge has felt that the plaintiff should not be allowed to put up any construction and both the parties will have to maintain the same state of things. Therefore an order of status quo is passed. It is virtually an injunction against both the sides.

Virtually the order passed is injuncting both the parties and therefore such an order of status quo under Order XXXIX Rules 1 and 2, C.P.C. cannot be considered as not maintainable.

Learned counsel for the appellant has vehemently argued that the order of injunction granted will be in force only till further orders and the same was in force till disposal of the suit and therefore permission may be granted to move the trial court for further orders. This court is unable to accept the contention for the simple reason that the order is one under Order XXXIX Rules 1and 2, C.P.C. The learned judge has passed a detailed order after framing three relevant issues for consideration relating to existence of prima facie case and balance of convenience and comparative hardship that would be caused in the event of granting or non-granting temporary injunction. Therefore the order so passed cannot be considered to be one to be in force till further orders but for all practical purposes, it is order to be inforce till the disposal of the suit.

Learned judge has took up the matter when the court was about to be closed for summer vacation. In the light of the fast approaching summer vacation, the learned judge has felt that the defendants should not be allowed to put up the construction. Therefore the final order and the operative portion will have to be red in the light of the entire analysis made by the learned judge. He has applied his mind before coming to the conclusion about the existence of prima facie case in favour of the plaintiff The finding is based on the materials placed on record in the light of the respective stands taken in the pleadings.

No infirmity or absurdity is found in the approach of the trial court. The order impugned is perfectly justified. Hence the appeal is liable to be dismissed.

Accordingly the appeal is dismissed. Since the matter is of the year 2012, the learned judge to expedite the matter by framing issues at the earliest. Parties and advocates to co-operate with the court in expeditious disposal of the suit.

Parties to bear their own costs.