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Judgment
N. Ananda
The trial court has rejected the plaintiffs application filed under Order 39 Rules 1 and 2 CPC. Therefore, the plaintiff is before this court. I have heard learned counsel for appellant/plaintiff and learned counsel for respondents/defendants 1 to 4.
The plaintiff claims to have obtained possession of the suit schedule property under an agreement of sale dated 09.02.2009 executed by one V.J. Balasubramanyam, Nandakumar and Umapathy. It is the case of plaintiff that the suit schedule property originally belonged to Sri. Arumugam Mudaliar. The aforestated persons have succeeded to the schedule property.
It is the case of plaintiff that 3rd defendant who is in possession of portion of suit schedule property as a tenant has entered into Memorandum of Understanding dated 23.12.2009 with plaintiff. It is the case of plaintiff that aforestated persons namely V.J. Balasubramanyam, Nandakumar and Umapathy had executed General Power of Attorney dated 03.03.2011 and put the plaintiff in possession of suit schedule property.
The defendants have contested the suit and application interalia contending that after long drawn litigation, which started wayback in the year 1944, they have obtained possession of the suit schedule property in Execution No. 939/1984.
It is the case of defendants that the suit schedule property belonged to Late. Armugam Mudaliar. In the year 1944, the sons of Armugam Mudaliar filed O.S.No. 103/43-44 for partition and separate possession. The suit was decreed by the trial court however, in the appellate court the suit was dismissed. Thereafter, the second son of Armugam Mudaliar namely Sarangapani who is the grand father of first defendant had filed a suit for recovery of possession in O.S.No. 193/ 1966 and the suit was decreed in the year 1973. The fourth son of Armugam Mudaliar had filed an appeal before this court in RFA No. 2/1974, which was partly accepted, but the decree for recovery of possession in favour of Sarangapani was confirmed. The father of first defendant namely Venkateshan had filed Execution Petition No. 939/1984 for recovery of possession as per the decree made in O.S.No. 193/1966. The said execution petition was prolonged till 2011 and finally on 08.08.2011, the suit schedule property was delivered to defendants in Execution Petition No. 939/1984. The defendants No. 1, 2 and 4 have been in possession of suit schedule property.
The learned trial judge taking into consideration previous proceedings and documents relied upon by defendants has held that defendants No. 1, 2 and 4 have recovered possession of suit schedule property in Execution Petition No. 939/1984. The agreements of sale dated 09.02.2009 and 23.12.2009 relied upon by the plaintiff have come into existence during pendency of Execution Petition No. 939/1984. The agreements are not sufficiently stamped to contend that the suit schedule property was delivered under agreements of sale.
The learned trial judge relying on the judgment of this court reported in 2003 (5) KLJ 263 (in the case of Jayalakshmi Reddy -vs- Thippanna and Others) has held that agreements of sale dated 09.02.2009 and 23.12.2009 cannot be relied upon for any purpose. The learned trial judge has held that defendant No. 3 is a tenant of a portion of the suit schedule property, therefore, he could not have? executed an agreement of sale in favour of plaintiff. The learned trial judge has held that plaintiff has failed to make out prima-facie possession of suit schedule property as on the date of suit. Therefore, plaintiff is not entitled for grant of temporary injunction.
The learned counsel appearing for plaintiff would submit that plaintiff has entered into an agreement of sale on 09.02.2009 with V.J. Balasubramanyam, Nandakumar and Umapathy for total sale consideration of Rs. 87,00,000/-and he has paid entire sale consideration of Rs. 87,00,000/-and the possession of suit schedule property was delivered to plaintiff The plaintiff has filed a suit for specific performance against the abovesaid persons and the said suit is pending. The defendants are trying to demolish the suit schedule property. Therefore, the learned trial judge should have granted an order of temporary injunction in favour of plaintiff.
The learned counsel for defendants 1, 2 and 4 would submit that the trial court has considered the documents in particular, decree in O.S.No. 193/1966 and RFA 2/1974 and the proceedings in Execution Petition No. 939/1984 to record a finding that possession of suit schedule property has been delivered to defendants No. 1, 2 and 4 through process of the court. The above said persons namely V.J. Balasubramanyam, Nandakumar and Umapathy who were successful in protracting the above proceedings, after delivery of suit schedule property in Execution Petition No. 939/1984 to defendants No. 1, 2 and 4, have set up the present plaintiff by executing aforestated agreement of sale. Therefore, the learned trial judge has held that the plaintiff has failed to make out a prima-facie case. In the circumstances, the impugned order does not call for interference.
As could be seen from the impugned order, the learned trial judge has taken into consideration the following documents:
i) Copy of the registered partition deed dated 4.5.1925
ii) Copy of the decree passed in O.S. No. 193/1966 and RFA No. 2/1974 passed by the Hon''ble High Court of Karnataka
iii) Copy of the Katha Extract (4)
iv) Copy of the deposition of the plaintiffs vendors in Execution petition
v) Copy of genealogical tree
vi) Copy of succession letter
vii) Copy of death certificate of Janakiram
viii) Copy of joint affidavit
ix) Copy of Sale Agreement dated 07.01.2011
x) Copy of the order passed in IA No. 10 and 13 in Execution Petition
xi) Copy of the order passed on I.A.No. 9 in Execution petition
xii) Copy of the report dated 11.8.2011 drawn by the court bailiff in Execution petition
xiii) Copy of the order sheet dated 29.08.2011 in Execution petition
xiv) Copy of the Memorandum of Agreement dated 17.6.1998
xv) Copy of the Memorandum of Supplemental Agreement dated 18.08.2001
xvi) Copy of the MOU dated 23.12.2009
xvii) Copy of the plaint and IA in OS No. 5972/200 1
xviii) Copy of the FIR and complaint and
xix) Copy of Synopsis
The learned trial judge on consideration of above documents has held that possession of suit schedule property has been delivered to defendants No. 1, 2 and 4 in Execution Petition No. 939/1984.
The learned trial judge relying on the judgment of this court reported in 2003 (5) KLJ 263 (in the case of Jayalakshmi Reddy -vs- Thippanna and Others) has held that the agreements of sale are not properly stamped. The plaintiff cannot contend that he was put in possession of suit schedule property under agreements of sale and they cannot be relied upon to determine the prima-facie possession of suit schedule property.
The learned trial judge has held that the third defendant has been in possession of part of suit schedule property as a tenant. Therefore, he had no right to enter into an agreement of sale or memorandum of understanding with plaintiff.
The learned trial judge has held that the above said persons namely V.J. Balasubramanyam, Nandakumar and Umapathy have no transferable right or possession to enter into an agreement of sale with plaintiff. The plaintiff has failed to prove that the abovesaid persons were in possession of suit schedule property at any point of time to enter into agreement of sale with plaintiff. The learned trial judge has held that the defendants 1, 2 and 4 have taken possession of suit schedule property in Execution Petition No. 939/1984. Therefore, the plaintiff has failed to make out prima-facie possession of suit schedule property.
On reconsideration of the matter, I am of the considered opinion that the impugned order is neither perverse nor capricious and the impugned order does not call for interference. In the result, I pass the following:
ORDER
The appeal is dismissed.