Uma M.S. vs Nandishaiah and Others

A.V. Chandrashekara, J.—These appeals have arisen out of the common order passed by the XLIV Addl. City Civil and Sessions Judge, Bangalore, in O.S. No. 2391/14 on 11/9/2014 on I.A. Nos. 1 and 2 filed under Order 39 Rules 1 and 2 of CPC. Appellant in both these cases is the sole plaintiff in the said suit and the respondents are the defendants 1 and 2 in the said suit. Parties will be referred to as plaintiff and defendants 1 and 2, as per their ranking given in the Trial Court.

Plaintiff has filed the suit for the relief of permanent injunction only in respect of the vacant site bearing No. 21, Khatha No. 768 of Rajarajeshwarinagar City Municipal Council having Khatha No. 1091 measuring 50 ft. East-West and 35 ft. North-South, carved out of earlier Sy. No. 45/4 of Mallathahalli Village, Yeshwanthapura Hobli, Bangalore North Taluk. Plaintiff is stated to be in lawful possession and enjoyment of the suit schedule site on the strength of a sale deed dated 28/11/2005 executed by one Renukamma. According to the plaintiff, Renukamma was the absolute owner in possession of the suit schedule property and said Renukamma chose to convey the suit schedule property in favour of the plaintiff and possession was also handed over in her favour. She is stated to be in lawful possession and enjoyment of the same, even to this date.

According to the plaintiff, one person by name Mayanna was the owner of 6 acres 14 guntas of land in Sy. No. 45/1 of Mallathahalli Village, Bangalore North Taluk and he had three sons namely Patel Rudrappa, Veerabadrappa and Mariswamappa. The said Patel Rudrappa died on 12/10/1996 leaving behind him, his only son M.R. Nanjundaiah, who died on 7/7/1997. One lady by name Sujaya was the wife of Nanjundaiah and daughter-in-law of Patel Rudrappa. According to the plaintiff, 2.03 acres of land fell to the share of Sujaya in Sy. No. 45/1, by inheritance. It is the case of the plaintiff that land in Sy. No. 45/1 came to be phoded as 45/1, 45/4, 45/5 and the land measuring 2.03 acres, which fell to the share of Sujaya, was phoded and assigned new Sy. No. 45/4. In the said 2.03 acres of land, Sujaya and her children had sold 1 acre of land to one N.R. Nagaraj, through registered sale deed dated 15/9/2003 and further said Nagaraj was enjoying the property purchased from Sujaya.

Later on, Nagaraj became the khathedar and got converted the said 1 acre of land to non-agricultural purpose from the revenue authorities vide conversion order dated 5/2/2004 and sold site No. 21 measuring 50'' x 35'', which is the suit schedule property, in favour of one Rangamaregowda V., through registered sale deed dated 12/4/2004 and he inturn sold the same to one Ramegowda, the vendor of the plaintiff.

Per contra, the defendant No. 1 has filed a detailed written statement denying all the material averments and calling upon the plaintiff to prove the contents of the plaint. It is the case of the defendant that Patel Rudrappa, father-in-law of Smt. Sujaya, had got converted 2.03 acres of land into non-agricultural purpose and formed a residential layout. The said Patel Rudrappa is stated to have sold one site bearing Site No. 21 in favour of the defendant No. 1 through a registered sale deed dated 20/10/1994 and since then, the defendant No. 1 is stated to be in lawful possession of the same. Defendant No. 1 is stated to have put up construction on the said site, the boundaries of which tally with the plaint schedule boundaries.

During the pendency of the said suit, plaintiff chose to file an application under Order 39 Rules 1 and 2 of CPC seeking an order of temporary injunction with a request to restrain the defendants from interfering with the peaceful possession and enjoyment of the suit schedule property. At the same time, defendant No. 1 also chose to file an application under Order 39 Rules 1 and 2 of CPC seeking an order of temporary injunction relating to interference in respect of site No. 21 measuring 50'' x 35'', bounded on the East by 25 ft. road; West by private property; North by 1st defendant''s property bearing Site No. 22; and South by Site No. 20. The said application has been supported by an affidavit sworn to by the 1st defendant.

The 2nd defendant has also chosen to file a detailed written statement denying all the material averments found in the plaint. According to the 2nd defendant, he is in lawful possession of site No. 20. Ultimately the application filed by the plaintiff has been dismissed and application filed by the 1st defendant has been allowed, granting the relief of temporary injunction vide considered order dated 11/9/2014. It is this order, which is called in question on various grounds.

Heard the learned counsel for the plaintiff in regard to admission. The legal inhibition on the First Appellate court dealing with an appeal under Order 43 Rule 1(r) is that, even if the Appellate court were to come to a different conclusion from that of the one arrived at by the Trial Court, the same cannot be substituted or altered, unless the order suffer from absurdity or perversity. The said absurdity or perversity can be inferred, if material documents having a bearing on the suit have been ignored or law has been misapplied into the facts of the case. Admittedly the case of the plaintiff is only for permanent injunction, title of which has been specifically denied by both the defendants. What exactly is the approach to be adopted in a case like this, has been well dealt at length by the Hon''ble Apex Court in the case of Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs. and Others, . This decision is applicable to a suit for injunction relating to a vacant site in which there has been a specific denial of the very title, relied upon by the plaintiff. In this view of the matter, the very maintainability of the suit looms at large, due to which, prima facie, the case becomes weak. The principle to this effect has been enunciated by this court in the case of Patel Enterprises Vs. M.P. Ahuja, .

The boundaries relied upon by the plaintiff in his suit tally with the boundaries relied upon by the 1st defendant. It is not as though the defendants have no basis for the very claim. They also rely upon the title deeds in regard to the acquisition of title. As already stated, in the light of the very title being denied, relating to a vacant site, the plaintiff has failed to make out the existence of a clear prima facie case and therefore the Trial Court has passed a detailed order adverting to various documents filed by the parties and the contentions taken up in the same. In this view of the matter, no merits are found in the appeals filed and they are liable to be dismissed at the threshold. The sites bearing No. 20 of the 2nd defendant and 21 of the 1st defendant are abutting to each other.

Learned counsel for the appellant has relied upon a full bench decision of this court rendered in the case of Shakuntalamma v. Kanthamma in W.P. Nos. 58906/14 and 16412/14 (GM-CPC) DD. 5/9/2014 to contend that the defendant cannot seek the relief of temporary injunction in the suit filed by the plaintiff under Order 39 Rule 1(b) or (c) of CPC.

Perused the decision relied upon by the plaintiffs learned counsel. What is held in the said decision is that "any party" can seek temporary injunction in the suit of the plaintiff only under Order 39 Rule 1(a) of CPC relating to damages or waste of the property or wrongfully sold in execution of a decree of a court and not otherwise. There is no second opinion of the interpretation of the full bench of this court regarding the applicability of the provisions of Order 39 Rule 1(b) or (c) of CPC.

In the present case, defendant No. 1 had chosen to file an application under Order 39 Rule 1 of CPC seeking an order of permanent injunction against interfering with the schedule property. It is useful to refer to the affidavit sworn to be the 1st defendant. Though the prayer appears to be one of seeking temporary injunction against the plaintiff relating to his property, the application, in essence, was one filed to seek the vacation of the ex parte temporary injunction obtained by the plaintiff. As discussed, the said application filed by the 1st defendant is in fact one filed virtually under Order 39 Rule 4 of CPC so as to nullify the effect of the ex parte order of temporary injunction.

In fact, in paragraph-21 of the written statement, 1st defendant has sought counter-claim for perpetual injunction in respect of his site No. 21, which is nothing but the property described by the plaintiff in his suit. The counter claim so made, falls virtually under Order 8 Rule 6A of CPC and will be a suit for all practical purposes. Viewed from any angle, the impugned order is not opposed to law or facts or probabilities. Absolutely no grounds are made out to interfere with the well considered order. Hence both the appeals are dismissed.

Parties to bear their own costs.