D.L. Karli Kannan and Others vs N.R. Khan and Others

B.S. Patil, J.—Plaintiffs in O.S. No. 328/2014 have filed these two appeals aggrieved by the rejection of two applications filed by them under Order XXXIX Rule 1 and 2 of C.P.C. In the two applications, plaintiffs had sought for an order of temporary injunction restraining the defendants 1 to 5/respondents 1 to 5 herein from alienating the suit schedule property till disposal of the suit and also from altering the nature of the property. The suit schedule properties are described in item Nos. 1 to 4 of the plaint schedule as property bearing Corporation Nos. 19, 20, 21 and 22 of Sampangiramaiah Garden, BMP Ward No. 71, Bengaluru.

Appellants/plaintiffs have filed the suit seeking judgment and decree of permanent injunction restraining respondents 1 to 5 herein from putting up construction over the suit schedule properties. The plaint averments disclose that 1st plaintiff claims to be the owner of land measuring 26,895 sq.ft. comprised in Sy. No 99, which was purchased by the father of 1st plaintiff during the year 1930. After the death of his father, 1st plaintiff joined military service during the year 1948. During the year 1968, 1st plaintiff leased the land in favour of the tenants - Kuppaiah and Shivappa; the tenants have filed applications in Form No. 7 seeking occupancy rights and the 1st plaintiff has filed an application under Section 15 of the Karnataka Land Reforms Act, 1961 (''Act'' for short) seeking resumption of the land and the said applications have been pending; however, one M. Narayanappa created spurious documents showing that an extent of 13 guntas of land was granted in his favour; after the death of Narayanappa, his sons Ayya and Balu created sale deeds in favour of one M. Paparaju on 16.11.2004 and also one M. Ravi purporting to alienate the property in their favour; the purchasers secured khatha to show that they were the owners of site Nos. 19 to 22; the purchasers, Paparaju and Ravi subsequently sold four sites in favour of N.R. Khan on 1.7.2005, who in turn sold the properties to defendants 2 to 5 on 21.6.2013 by amalgamating the khatha and showing it as a single site bearing site No. 19; thereafter, 1st defendant applied for a sanctioned plan and obtained the same; the plaintiffs having learnt about the same during the month of July 2013 and having realized that the 1st defendant in collusion with the officials of BBMP had obtained the sanctioned plan, were constrained to approach the Court by filing the present suit. It is contended by the plaintiffs that they have challenged the khatha effected in the name of the purchasers by initiating separate proceedings.

The respondents/defendants herein contested the suit contending inter alia that the property granted in favour of M. Narayanappa, which was eventually purchased by the defendants was different from the property of the plaintiffs. In this regard, relying on the boundaries mentioned in the plaint schedule, it is contended that the claim of the plaintiffs does not relate to the property purchased and owned by the defendants. Strong reliance has been placed by the defendants on the record of rights, index of lands and mutation register disclosing the name of M. Narayanappa as owner in respect of 13 guntas of land in Sy. No. 19.

The Trial Court, on consideration of the respective pleadings and documents placed on record has come to the conclusion that plaintiffs failed to make out a prima facie case and balance of convenience was not in their favour. It has also come to the conclusion that grant of temporary injunction would result in serious hardship and prejudice to the interests of the defendants. Therefore, both the applications filed by the plaintiffs have been dismissed.

Learned counsel for appellants/plaintiffs contends that documents produced by the plaintiffs have not been considered by the Trial Court; the order of the Deputy Commissioner allegedly granting the lands in favour of M. Narayanappa is not a genuine document; indeed, an endorsement has been issued by the Deputy Commissioner on 7.2.2013 showing that no such records pertaining to the grant were available in the office; the Court below has only taken note of the hardship of the defendants, but not that of the plaintiffs. He has placed reliance on the Apex Court''s judgment in the case of Maria Margarida Sequeria Fernandes and Others Vs. Erasmo Jack de Sequeria (Dead) through L. Rs., . He has particularly invited the attention of Court to paragraph Nos. 62, 63, 81 to 85 of the said judgment.

Learned counsel appearing for the respondents has supported the order passed by the Court below. He has contended that in para 6.1 of the plaint, boundaries of the land comprised in Sy. No. 99 has been furnished which does not tally with the suit schedule where the boundaries of site bearing Nos. 19 to 22 have been shown. He contends that even by referring to the boundaries mentioned in the suit schedule, it can be made out that the property claimed by the plaintiffs is different from the property purchased by the defendants from Paparaju and Ravi.

Having heard learned counsel for both parties, only point that arises for consideration is:

"Whether the Court below has committed any illegality in dismissing the two applications filed by the plaintiffs/appellants herein seeking temporary injunction"

A careful perusal of the pleadings and the documents produced by both parties would show that in respect of plaintiffs'' lands, which is also said to be a part of Sy. No. 99, their tenants Kuppaiah and Shivappa have already filed an application in Form No. 7 and indeed, 1st plaintiff has also filed an application under Section 15 of the Act seeking resumption of the land. The matter is seized by the Land Tribunal. Indeed, even as per the plaintiffs case their tenants have been in possession of the property. It is not the case of plaintiffs that their tenants, Kuppaiah and Shivappa inducted the present defendants into the property. If that is so, how the present defendants could lay a claim against the plaintiffs is understandable.

Whether M. Narayanappa was granted 13 guntas of land in Sy. No. 99 during 1965-66 and whether the order of grant placed before the Court is a genuine document are all matters that require to be examined at the stage of evidence. The documents placed on record by the defendants viz., order of grant, record of rights and index of lands and as also the mutation register disclose the name of M. Narayanappa. Indeed, the mutation register extract shows that vide mutation order bearing No. 99/1965-66, name of Narayanappa has been ordered to be mutated in the revenue records in respect of 13 guntas of land at Sy. No. 99. The RTC extracts are also produced by the defendants to show that Narayanappa''s name was entered in the revenue records. Such being the position, at this stage, it cannot be said that the documents showing the name of M. Narayanappa were spurious and created. The said issue would be a subject-matter of trial and the Court below has rightly not entered into the said question by conducting a mini trial.

The main contention of the defendants has been that the lands purchased by them has nothing to do with the land of the plaintiffs, which is the subject-matter of adjudication before the Land Tribunal. This contention appears to be probabalised, atleast prima facie, at this stage by the discrepancy in the description of boundaries of the suit property as can be seen from paragraph No. 6.1 of the plaint and the schedule describing item Nos. 1 to 4 of the plaint schedule properties. However, nothing more need to be mentioned at this stage, because that is also a subject-matter to be ascertained at the stage of trial. Nobody is questioning the title of plaintiffs over the property. Indeed, they have not sought for declaration of their title. If 1st plaintiff''s father purchased the property in the year 1930 and the plaintiffs have succeeded to the same and thereafter tenants have laid a claim, then the matter has to be adjudicated by the Land Tribunal where the case is pending. As the defendants claim that the property purchased by them and which is in their possession is totally different, the observations made by the Apex Court in paragraph No. 63 of Maria Margarida Sequeira Fernandes and Others (supra) and subsequently in paragraph Nos. 81 to 85 with regard to the grant or refusal of injunction in cases where false claims, false cases and false defences are taken up, cannot be made applicable, at this stage. No doubt, at the stage of final adjudication of the matter, the principles laid down in the judgment of the Apex Court will certainly have to be borne in mind by the Court below.

In addition, another most important aspect that deserves to be adverted to is the submission of learned counsel for the defendants during the course of arguments, on instructions, that if the plaintiffs succeed in the suit, then the defendants will not plead equity, merely because, they have put up construction over the suit property and that they will abide by the final directions to be issued by the Court below with regard to such construction. The said submission of learned counsel would also address the apprehensions of plaintiffs with regard to safeguarding the rights of plaintiffs over the suit property in the event of their success.

Hence, for the aforesaid reasons, these two appeals being devoid of merit are dismissed.