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Judgment
S. Sujatha, J.—1. These appeals are filed by the Defendant No. 2 challenging the Common Order passed on IA Nos. 1 & 4 and IA Nos. 2 & 4 in OS No. 191/2015 on the file of the Principal Senior Civil Judge at Raichur.
Briefly stated facts are:
"The first respondent is the plaintiff in OS No. 191/2015 pending before the Principal Senior Civil Judge at Raichur. The said suit was instituted by the plaintiff against the appellant herein/Defendant No. 2 and another [Defendant No. 1] for declaration of title, injunction and for further declaration that the sale deed bearing Document No. 5199/2015-2016 dated 17.08.2015 executed by the Defendant No. 1 in favour of the Defendant No. 2 as null and void. It is the case of the plaintiff that his sister Smt. Anjana Bai had purchased the land bearing Sy. Nos. 1233 and 1234 totally measuring 14 acres 4 guntas and got the same converted into non agricultural purposes on 11.01.1983. It is contended that said Smt. Anjana Bai sold some plots to certain persons. It transpires that she had executed a Will dated 6.6.1992 wherein, suit properties and other properties are bequeathed in favour of the plaintiff and some properties are bequeathed in favour of her son, namely, Defendant No. 1. Some properties are bequeathed in favour of her sisters Ambu Bai and Radha Bai. It appears that after the death of Smt. Anjana Bai, plaintiff, Defendant No. 1, Ambu Bai and Radha Bai jointly filed applications to City Municipal Council, Raichur for getting mutation of their names in respect of plots, which are bequeathed to them by late Smt. Anjana Bai. It transpires that the Defendant No. 1 though initially not objected for getting the suit properties transferred in the name of the plaintiff, it seems had raised objections after lapse of two years, as a result of which the Deputy Commissioner, Raichur, cancelled the Order of conversion to non-agricultural purposes."
Being aggrieved, the plaintiff challenged the same before the Karnataka Appellate Tribunal, Bangalore in Appeal No. 616/2001 and the Defendant No. 1 challenged the same order in Appeal No. 749/2001. The said appeals were clubbed and a common order was passed by the Karnataka Appellate Tribunal on 29.11.2002 setting aside the Order of the Deputy Commissioner, Raichur. Subsequently, the Defendant No. 1 filed objections before the City Municipal Council, Raichur for effecting mutation in the name of the plaintiff in respect of the suit properties based on the alleged Will said to have been executed by Smt. Anjana Bai. However, the said objections were withdrawn by filing an application to the City Municipal Council, Raichur. The Deputy Commissioner, Raichur again passed an order cancelling the conversion order which was challenged before the Karnataka Appellate Tribunal, Bangalore, in Appeal No. 138/2012. Thus, the plaintiff is claiming his title over the suit properties on the basis of the alleged Will dated 6.6.1992. In the meantime, the plaintiff had sold plot No. 175 in favour of one Haji Rafiq Ahmed wherein, the Defendant No. 1 had put his signature as attesting witness. Again another plot No. 181 was sold by the plaintiff in favour of Smt. Amita Kivinaraj under registered sale deed dated 13.02.2015 wherein, the Defendant No. 1 was the attesting witness for the said transaction. It is contended that such being the position, the Defendant No. 1 in collusion with City Municipal Council, Raichur again got mutated his name to the suit properties under Mutation No. CMC/REV/MUT/A/530-2015-2016 dated 29.07.2015 and illegally sold the same in favour of the Defendant No. 2 by registered sale deed dated 17.08.2015. The said sale deed is challenged by the plaintiff in OS No. 191/2015.
IA No. 1 was filed by the plaintiff for restraining the Defendant No. 2 or anybody on his behalf from alienating the suit properties pending disposal of the suit. IA No. 2 was filed by the plaintiff under Order 39 Rules 1 & 2 read with Section 151 of CPC, for restraining the Defendant No. 2 or anybody acting on his behalf from constructing any building or permanent structure over the suit property pending disposal of the suit. The Defendant No. 2 filed objections to IA No. 1 & 2 and filed IA No. 4 under Order 39 Rule 4 of CPC to vacate the ex parte injunction order passed against the Defendant No. 2 and prayed for protection of his right for lawful possession and construction of building in the suit property. Both these applications were clubbed and heard together and common order dated 19.11.2015 was passed by the trial court, allowing IAs 1 & 2 filed by the plaintiff restraining the Defendant No. 2 from alienating the properties shown in schedule of IA No. 1 and also from constructing any building or structure in the property thereon, pending disposal of the suit subject to furnishing security of bank guarantee of Rs. 5 lakhs within twenty days, thus, confirming the ex parte temporary injunction order granted earlier. IA No. 4 filed by the Defendant No. 2 was dismissed with costs of Rs. 500/-. Being aggrieved by the said orders on IA Nos. 1, 2 and 4, the appellant is before this Court.
Learned Counsel for the Appellant would contend that the Defendant No. 2-Appellant is the bona fide purchaser of the suit properties for a valuable consideration. He has obtained construction permission from the competent authority which prima facie shows that he is in actual and physical possession of the suit properties. It is submitted that the Trial Court has failed to consider the fundamental principles of law that the natural heir has to be presumed to be the successor of the property and would prefer over the alleged legatee who is only an intruder into the natural line of succession. The Trial Court ignoring these vital aspects, based on illusion and imagination, allowed IAs. 1 & 2 filed by the plaintiff and dismissed IA No. 4 filed by the Defendant No. 2/Appellant.
It is also submitted by the learned Counsel appearing for the Defendant No. 2/Appellant that the improvement if any, made to the property in question would enhance the value of the property and if the appellant is injuncted from putting up the construction, his legal rights would be defeated and no hardship or injury would be caused to the plaintiff by improving the property.
Per contra, learned Counsel appearing for the plaintiff justifying the order of the Trial Court would contend that the Trial Court having analyzed the material on record, has rightly come to the conclusion that the prima facie case, balance of convenience are in favour of the plaintiff and if any temporary injunction as sought by the plaintiff is not granted, it would cause great hardship and injury to the plaintiff, accordingly, passed the order in favour of the plaintiff negating the contentions of the Defendant No. 2 which cannot be found fault with.
Having heard the rival submissions of the parties and perused the material on record, it is noticed that the plaintiff is claiming his right over the suit properties based on the Will said to have been executed by his sister Smt. Anjana Bai. In the mutation proceedings, the Defendant No. 1 though objected for entering the name of the plaintiff in the revenue records, subsequently had withdrawn the objections and had affixed his signature as attesting witness to the registered sale deeds executed by the plaintiff based on the very same Will in favour of third parties.
It is observed that the Defendant No. 1 is not consistent in his stance taken before the Authorities and the Tribunal. It is true that the appellant may be a bona fide purchaser of the suit property for a valuable consideration from the Defendant No. 1. That itself would not be suffice to establish the title and possession to the property. The fact that the plaintiff had sold some portion of the bequeathed property with the knowledge of the Defendant No. 1 would establish the prima facie case for grant of temporary injunction against the Defendant No. 2. The Defendant No. 2 has taken the risk of purchasing the suit property without verifying the title and the background of the case. The appellant has purchased the property from the Defendant No. 1 during the pendency of the matter before the Karnataka Appellate Tribunal, Bangalore, for adjudication.
It is also pertinent to note that if temporary injunction as prayed by the plaintiff is not granted and the appellant is permitted to change the nature of the suit properties, it would lead to multiplicity of proceedings and indirectly, it may support the case of the appellant that he is in possession of the suit property by making huge investment for the construction of the building. The plaintiff is challenging the sale deed said to have been executed by the Defendant No. 1 in favour of Defendant No. 2 and if the appellant is permitted to put up construction or to alienate the suit properties, the rights of the plaintiff would be defeated and the huge investments, if any, made by the appellant without valid title would cause great loss and hardship to both the parties in the event the suit is finally decreed in favour of the plaintiff and the appellant would attempt to unsettle the settled facts. The three main ingredients for granting temporary injunction, namely, prima facie case, balance of convenience and injury or hardship that would be caused to the parties if examined with the factual matrix of the case, the court has to lean towards the plaintiff. The Trial Court has extensively considered the case of the parties in the light of the Judgments referred to by the parties and has come to a conclusion that the plaintiff is entitled to an order of an ad-interim temporary injunction as prayed pending disposal of the suit subject to furnishing security of bank guarantee of Rs. 5 lakhs within twenty days which is justifiable and does not call for any interference by this Court.
As regards IA No. 4 is concerned, seeking vacating the ex parte temporary injunction order, the Trial Court has categorically held that the appellant has purchased the suit properties during the pendency of the matter before the Karnataka Appellate Tribunal, Bangalore, knowing fully well such fact, he has taken the risk of purchasing the suit property and accordingly, rejected IA No. 4, confirmed the ex parte temporary injunction granted in favour of the plaintiff against the appellant. No case is made out by the appellant to interfere with the well considered order passed by the Trial Court. It is the categorical contention of the appellant that the alleged Will said to have been executed by Smt. Anjana Bai in favour of the plaintiff is fabricated document and the plaintiff cannot claim right on the said alleged Will dehors the natural heir. These are the issues to be adjudicated in the trial. Given the circumstances, the Trial Court has rightly exercised its discretionary powers to grant temporary injunction in favour of the plaintiff rejecting IA No. 4 filed by the appellant which does not warrant any interference by this Court.
In the result, these appeals stand dismissed as devoid of merits. The Trial Court is directed to dispose of the matter as expeditiously as possible.