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Judgment
The defendants in O.S.5839/2017 on the file of LIX Addl. City Civil Judge, Bengaluru City. Bengaluru, have preferred this appeal aggrieved by
the order dated 10.11.2017 passed in the said suit on I.A.Nos. I and II filed under Order XXXIX Rules 1 and 2 of the Civil Procedure Code
(''CPC'' for short). The trial court has passed an order of temporary injunction restraining the defendants from obstructing lawful possession of the
plaintiff over the suit schedule property and has further directed the defendants to remove the compound wall constructed around the suit property
within thirty days.
The plaintiff instituted the above suit for the relief of permanent injunction and mandatory injunction in respect of a vacant site bearing No.4 out
of katha No. 262B/4 of Kothihosahalli Village, Yelahanka Hobli, Bengaluru North Taluk, measuring East to West 60'' and North and South 80'',
in all 4800 sq. ft which is now situated in Sahakaranagar, Bengaluru along with 6225 sq. ft of common area. This property will be referred to as
''the suit property'' hereinafter.
The plaintiff has pleaded that 25 guntas of land in Sy. No. 3/1 of Kothihosahalli earlier belonged to one N.N.Srinivasaiah and his wife
K.V.Sujatha. They formed 4 sites in the said land, namely 262B/1, 262B/2, 262B/3 and 262B/4. Her husband Shivakumar purchased two sites
bearing Nos. 262B/1 and 2 and daughter Sunitha purchased a site bearing No. 262B/3. She purchased site bearing No. 262B/4. The sale deeds
were executed on 2.12.1995. On 12.4.2004 her husband Shivakumar and daughter Sunitha sold their respective sites to M.Venkatesh and
M.V.Muniraj. The plaintiff retained her site. Till 2014 she was regularly going near the suit property for its supervision. For about seven months she
could not visit the suit property owing to her ill-health. On 31.8.2015 when she went there, to her surprise she saw a peripheral compound having
been constructed around the entire 25 guntas of land including her site. She requested the defendants to remove the compound. When the
defendants did not heed to her request, she issued a legal notice to them. Since defendants did not remove the compound and started interfering
with her possession, she filed a suit.
Along with the plaint she presented two applications, one for temporary injunction to restrain the defendants from interfering with her possession
and another application for temporary mandatory injunction to remove the compound as it obstructed the way to her property.
The defendants do not dispute that the land in Sy. No.3/1 belonged to Srinivasaiah. They state that on 11.6.2004 Srinivasaiah sold 25 guntas of
land to one D.Santosh Kumar, the son of the first defendant. In the same survey number, there was another bit of land measuring 3 guntas. It was
also sold to Santoshkumar on the same day. Totally Santosh Kumar purchased 28 guntas of land in Sy. No. 3/1. On 19.12.2005 the second
defendant obtained permission from the Deputy Commissioner, Bengaluru District, for purchasing agricultural land. On 16.1.2006, Santosh Kumar
sold 28 guntas of land to second defendant. Defendant No.2 also purchased another bit of land measuring 3 guntas in Sy. No. 3/2 from Venkatesh
and Munithayamma. On 19.4.1996 one Alfreeda D''Souza sold 9 guntas of land in Sy. No.3/1 to the second defendant. On 7.10.2008, defendant
2 obtained conversion from agricultural to non-agricultural purpose. It obtained katha from Bruhath Bengaluru Mahanagara Palike and constructed
a school building. Thus, the second defendant claims to be in possession of the entire extent of land in Sy. No. 3/1 and 3/2. The defendants also
contended in para 10 of the written statement on 20.9.2007 Venkatesh, Muniraju and the plaintiff executed a sale deed in respect of a non-existing
property bearing No. 267/266/B1, 267/266/B2, 267/266/B3. After executing of these sale deeds, the plaintiff, her husband and daughter are not
traceable at all. Thus, they cheated the second defendant.
I have heard the arguments of the learned counsel for the appellants/defendants and the learned counsel for the respondent/plaintiff.
A perusal of the impugned order shows that the learned trial judge arrived at a conclusion that the plaintiff was able to make out a prima facie
case for grant of temporary injunction in the background of the circumstances that can be made out from the documents produced by either side
that the purchase of suit property by the plaintiff from Srinivasaiah and his wife Sujatha was earlier in point of time. The plaintiff''s sale deed bears
the date 2.12.1995. The plaintiff''s husband and daughter also purchased other sites in Sy. No. 3/1 from the same vendors. If Srinivasaiah sold all
the four sites formed in Sy. No. 3/1 on 2.12.1995 itself, the sale deed executed by the very same Srinivsaiah in the year 2004 in favour of Santosh
Kumar was null and void. Therefore, the defendants contention that they acquired interest over 25 guntas of land under the sale deed dated
11.6.2004 and another sale deed executed by Santosh Kumar in favour of the second defendant on 3.1.2006 could not been given any
importance. The trial judge applying the doctrine of priority, held that the plaintiffs sale deed should be considered as valid and since it was a
vacant site, it could be said that she was in possession on the date of the suit. The learned trial judge further held that the defendants constructed a
compound around the entire land causing obstructions to the plaintiff''s movement to go to her site. Since her movements had been curtailed
because of construction of the compound, she was entitled to an order of temporary mandatory injunction for removal of the compound. Learned
trial judge placed reliance on the judgment of the Supreme Court in AIR 1990 SC 8670.
The learned trial judge further held that since the possession of the suit property was with the plaintiff and that the defendants documents would
not establish their valid right, and that compound wall has been constructed by the defendants, the plaintiff''s right to enjoy the suit property has
been infringed. Therefore, balance of convenience lies in her favour and if the compound wall is not removed, she will face difficulty to possess and
enjoy her property. With these conclusions, the learned trial judge allowed the applications for temporary injunction.
It is well settled principle that whenever an appeal is preferred challenging the order passed on an application filed under Order XXXIX Rules 1
and 2 CPC, the appellate court should not interfere unless the order challenged appears to be capricious or arbitrary. The learned counsel for the
appellants argues that the plaintiff was not in possession of the suit property on the date of the suit. The second defendant is the absolute owner in
view of the sale deeds executed by the erstwhile owner Srinivasaiah in favour of one D. Santosh Kumar and another sale deed executed by
D.Santosh Kumar in favour of second defendant. The entire land in Sy.No.3/1 and Sy.No.3/2 belongs to the second defendant and there is a
school building. Therefore the plaintiff cannot contend to be in possession of the suit property on the date of the suit. According to him the trial
court has not exercised discretion properly.
The learned counsel for the appellants submits that the trial court has issued temporary mandatory injunction without considering the fact that
the compound has been constructed around the entire 25 guntas of land. Such an order cannot be passed as it amounts to granting main relief itself.
The learned counsel for the respondent argues that the sale deeds executed in favour of the plaintiff, her husband and daughter were earlier in
point of time. The second defendant also traces its title through the erstwhile owner Sri. Srinivasaiah. If according to the second defendant the
entire land in Sy.No.3/1 had been sold by Srinivasaiah in favour of D.Santosh Kumar on 11.06.2004 itself, there is no need to obtain a second
sale deed in respect of the same property. He argues that the trial court has properly exercised its discretion noticing the title of the plaintiff being
earlier in point of time. With regard to granting of mandatory injunction also, the trial court has noticed the fact that the compound obstructs the
plaintiff''s access to the suit property. The trial court has placed reliance on the judgment of the Hon''ble Supreme Court. Therefore under these
circumstances there is no need to interfere with the impugned order. In support of his argument as to how the possession with regard to vacant
land has to be inferred, the learned counsel has placed reliance on a judgment of the Hon''ble Supreme Court in the case of Anathula Sudhakar Vs.
P. Buchi Reddy (dead) by LR''s and others [AIR 2008 SC 2033].
Now having regard to the transactions of sale, it can be very well said that the entire 25 guntas land in Sy.No.3/2 earlier belonged to
Srinivasaiah. On 2.12.1995 this Srinivasaiah and his wife Sujatha sold the four sites formed there to the plaintiff, her husband and daughter. While
plaintiff''s husband and daughter sold their respective sites to M. Venkatesh and Muniraju, she retained the site purchased by her. The sale deeds
produced by the defendants also show that the said Srinivasaiah sold the very same land on 11.6.2004 to one D. Santosh Kumar, the son of 1st
defendant. This sale was registered on 14.6.2004. So Srinivasaiah having sold this property to the plaintiff and her husband and daughter on
2.12.1995, he could not have executed sale deed in respect of same land subsequently on 11.6.2004. The learned counsel for the appellant
submits that D. Santosh Kumar purchased agricultural land by obtaining permission from the Deputy Commissioner. According to him, the land
purchased by D. Santosh Kumar is different from the lands purchased by the plaintiff, her husband and daughter. The written statement does not
state that the property purchased by Santosh Kumar is different from the property purchased by plaintiff, her husband and daughter. Even if this is
the specific defence, it has to be decided by the trial court after trial. But at this stage what appears from the sale deeds is that Srinivasaiah sold 25
guntas of land on 2.12.1995 and this very same land appears to have been purchased by D. Santosh Kumar. Therefore if the trial court has come
to conclusion that the principles of priority of interest as envisaged in Section 48 of Transfer of Property Act is applicable, it can be said that the
trial court has assessed the materials on record properly for grant of temporary injunction. I do not find any irregularity or infirmity in it.
According to the plaintiff her property is a vacant land. The appellants counsel contended that suit property is in possession of the defendants
because of existence of a school building and construction of the compound around the entire land. As to how possession over vacant land can be
inferred is made clear by the Hon''ble Supreme Court in the case of Anathula Sudhakar (Supra).
In a suit for permanent injunction to restrain the defendant from interfering with plaintiff''s possession, the plaintiff will have to establish that as
on the date of the suit he was in lawful possession of the suit property and defendant tried to interfere or disturb such lawful possession. Where the
property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may prove physical
or lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Even in respect of a land without
structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is
not in issue in such a suit, though it may arise incidentally or collaterally.
But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such cases the principle is that possession
follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in
possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere
injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure
possession. In such a situation, where the title is clear and simple, the court may venture a decision on the issue of title, so as to decide the question
of de jure possession even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact
and law, or where court feels that parties had not proceeded on the basis that title was at issue, the court should not decide the issue of title in a
suit for injunction. The proper course is to relegate the plaintiff to the remedy of a full-fledged suit for declaration and consequential reliefs"".
(underlining by me)
Therefore applying this principle to the facts of the case, it can be said that since the said property is a vacant land and that the title of the
plaintiff can be inferred, it can be presumed that the plaintiff is in possession over the suit property. This finding of the trial court cannot be said to
be perverse, illegal or capricious.
With regard to granting of temporary mandatory injunction the principle is that it cannot be granted unless an extreme circumstance is made
out. Now that it is undisputed fact that compound is constructed around the entire property by the second defendant, the plaintiff finds it difficult to
have access to her property. The defendant cannot obstruct her access. Having regard to this fact the trial court has passed an order to remove the
compound saying that it is just order under the facts and circumstances. I find that the order of the trial court does not suffer from infirmity. In the
facts and circumstances, discretionary power has been exercised properly and therefore there is no need to interfere with the impugned order.
Consequently, appeal is dismissed.