1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE K. NATARAJAN MISCELLANEOUS FIRST APPEAL NO.321 OF 2025 BETWEEN: 1 . CHINNAKKAIAH W/O LATE KRISHNAPPA AGED ABOUT 74 YEARS 2 . SRI. H. K. CHANDRASHEKAR S/O LATE KRISHNAPPA AGED ABOUT 47 YEARS 3 . SMT. RASHMI W/O H. K. CHANDRASHEKARA AGED AOUT 40 YEARS ALL ARE R/AT NO.51/47, 1ST FLOOR, NEXT TO LORDS SCHOOL, HULIMAVY VILLAGE, BEGUR HOBLI, BENGALURU SOUTH TALUK, BENGALURU - 560 076. ...APPELLANTS (BY SRI. S.K.VENKATACHALAPATHI, ADVOCATE) AND: SRI. RAJENDRA BABU N S/O NARAYAN, AGED ABOUT 59 YEARS, R/AT VISUR AGRAJARAM VILLAGE, DEVARULIMNGALAM, KAKKADASAM, DENKANIKOTTAI TALUK, KRISHNAGIRI DISTRICT - 635 107. …RESPONDENT (BY SRI. H.N.VENKATESH, ADVOCATE) THIS MFA IS FILED U/O 43 RULE 1(r) R/W SECTION 151 OF CPC, AGAINST THE ORDER DATED:12.12.2024 PASSED ON I.A.NO.1 IN OS.NO.2172/2024 ON THE FILE OF THE IX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CCH- 5, ALLOWING THE APPLICATION FILED UNDER ORDER 39 RULE 1 AND 2 R/W SECTION 151 OF CPC. 2 THIS MISCELLANEOUS FIRST APPEAL HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 06.02.2025 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR JUSTICE K.NATARAJAN CAV JUDGMENT This appeal is filed by the defendants under Order XLIII Rule 1(r) of CPC for setting aside the order dated 12.12.2024 passed by the IX Additional City Civil And Sessions Judge, Bengaluru (CCH-5) in O.S. No.2172/2024 for having granted injunction against respondent-plaintiff. 2. Heard learned counsel for the appellants and learned counsel for respondent. 3. The appellants were defendants and respondent was plaintiff before the trial Court. For the sake of convenience, the rank of the parties is retained to as before the trial Court. 4. The case of the plaintiff before the trial Court is that plaintiff filed a suit for injunction restraining the defendants from interfering with peaceful possession and enjoyment of the suit schedule property and also for mandatory injunction directing the RESERVED FOR ORDERS ON: 06.02.2025 PRONOUNCED ON : 28.02.2025 3 defendants to remove the illegally made trenches and foundation on the western side of the schedule property on the ground that the plaintiff is the absolute owner and in possession of the schedule property bearing BBMP Khatha No.538A/550/51/871/87, measuring East to West 46 feet, North to South 142 feet, measuring 6532 Sq. Ft., presently falls within the limits of BBMP Ward No.193-Arakere Sub Division, which is a portion of survey No.87/1 of Hulimavu Village, Begur Hobli, Bengaluru South Taluk. 5. It is contended that the plaintiff acquired property through a gift deed dated 02.09.2023 executed by N. Savithramma in favour of plaintiff and the same was registered before the Sub-Registrar and he was put in possession and enjoyment of schedule property. After acquisition, the plaintiff put up a compound wall covering schedule property and got transferred the khatha in his name and paid taxes. It is further contended that originally, K.M. Muniramaiah was the owner of the property in survey No.87/1 to an extent of 2 acres 29 guntas acquired the same under sale deed dated 05.05.1946 and he was in possession of the same. It is further contended that earlier, the said land belonged to Patel Hanumappa and family members, who mortgaged the said property to Sri Kodandaramaswamy Co-operative Society. Since Patel Hanumappa had not repaid loan amount, the property was 4 purchased by the said society on 16.10.1939 and it was sold to one B.M. Muniswamapaa and Appareddappa, who in turn sold the same to K.M. Muniramaiah on 05.05.1946 and he was put in exclusive possession exercising all the rights. In the circumstances, the said Patel Hanumappa and family members divested their so called rights and ownerships and also possession over the said properties. The defendants claimed right through Patel Hanumappa. It is contended that after demise of K.M Muniramaiah, the property devolved upon his grandson Jayanth as per bequeath made by Muniramaiah. After the demise of Jayanth, it was devolved upon Savithramma, who is the only legal heir of Jayanth. Later, the property was gifted by the said Savithramma to the plaintiff. But the defendants were claiming and interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiff. Hence, the plaintiff filed the present suit. Along with the suit, the plaintiff also filed an application for injunction and the same was granted by the trial Court, which is under challenge. 6. Learned counsel for the appellants has contended that the order of the trial Court is perverse and capricious. The suit filed by the plaintiff is a created document for the purpose of injunction in the name of Savithramma who created gift deed dated 02.09.2023. On the alleged gift deed executed by Savithramma, the plaintiff 5 created ‘B’ Khatha on 14.09.2023 to the extent of 6532 sq. ft. to deprive the right of the appellant in survey No.87/1A1, which was acquired by the husband of appellant No.1 measuring 9 guntas of land and he was in its exclusive possession. The plaintiff intentionally created a document and paid taxes to deprive the right of the defendants. The trial Court has not properly appreciated the documents and therefore, prayed for setting aside the impugned order. 7. It is also contended by the learned counsel that the husband of the defendant No.1 and father of defendant Nos.2 and 3 acquired right and title over 2 acres 9 guntas in survey No.87/1 under sale deed dated 05.05.1946. Thereafter, the members of Krishnappa divided the property among them. The land to the extent of 14 guntas was allotted to Krishnappa in new survey No.87/1A1 and remaining land was allotted to other family members. The khatha stood in the name of Krishnappa and thereafter, he sold 5 guntas in favour of third parties and retained 9 guntas of land. The revenue document stood in their names for 30 years. The Deputy Commissioner has given conversion order dated 17.05.2010 itself. Khatha for 9 guntas of land stands in the name of Krishnappa. Thereafter, the defendants were in possession and enjoyment of the schedule property. They have constructed 6 residential house in some portion of the land long back and also commercial shops facing towards road. Taxes were paid for the said land. Therefore, the defendants are in possession of the schedule property. The plaintiff has created documents without any title and filed the suit for injunction. Hence, prayed for dismissing the appeal by setting aside the order of the trial court. 8. Having heard the learned counsel appearing for the parties, perused the records. 9. The points that arise for consideration are: (i) Whether the plaintiff has made out prima facie case for granting injunction in their / his favour ? (ii) Whether the balance of convenience lies in favour of the plaintiff ? (iii) Whether there would be irreparable loss, if injunction is granted ? (iv) Whether the order of the trial court calls for interference ? 10. On perusal of the records, the plaintiff claims schedule property as a gifted property by his sister i.e. Savithramma on 02.09.2023. The plaintiff has not produced any documents as to how his sister got title over the suit schedule property. But it is contended that the land was originally belonged to Patel 7 Hanumappa, who has mortgaged Property to Kodandaramaswamy Co-operative Society. Since the loan was not paid, the property was sold by auction to one K.M. Muniramaiah. Subsequently, after the death of K.M. Muniramaiah, his grand son Jayanth succeeded the property and after his demise, the wife of Jayanth, i.e. Savithramma became the owner of the property. Hence, she has gifted the property to the plaintiff. Whereas, defendants' contention is that the property belongs to Krishnappa (husband of appellant No.1), who was allotted the property of 14 guntas in Sy. No.87/1A. After selling 5 guntas of land of Krishnappa to Sri Laxman, Bhagyalaxmi, Bhaskar Shastri and Nankaram. They kept remaining 9 guntas of land and thereafter, they got converted the land into non-agricultural land as per the order of the Deputy Commissioner dated 17.05.2010. It is renumbered as Sy. No.87/1A1 for 9 guntas of land in Hulimavu village. The sale deed relied upon by the plaintiff dated 05.05.1946 in favour of one Muniramaiah, which reveals that the land was mortgaged to one Kodandaramaswamy Co-operative Society and the same was purchased by Muniswamappa and the land was given to back to Patel Hanumappa. Subsequently, miscellaneous case was filed and mortgage was released and there was compromise in the miscellaneous case. It is further held that there is no right, title over the schedule property for Muniswamappa. It is further revealed 8 that 4 acres of land was retained by the vendors and remaining land was given back to 6 others persons. B.M. Muniswamapaa and Appareddappa said to be retained the land and the said remaining portion of land were given back to Muniramaiah. The defendants claim that the said property was succeeded by their ancestors. 11. On perusal of the said documents, though title vested with B.M. Muniswamappa, the possession was retained by them, which reveals that the defendants are continued to be in possession and that after death of Patel Hanumappa, the property devolved in the name of their children and family to the extent of 14 guntas of land purchased by Krishnappa and out of 14 guntas of land, 5 guntas was sold by retaining 9 guntas were retained by them. Subsequently, Krishnappa requested the Deputy Commissioner and obtained conversion order for 9 guntas of land on 17.05.2010, and accordingly, khatha certificate was obtained. Tax paid receipts also reveal that the schedule property stood in the name of Krishnappa. After the death of Krishnappa, the schedule property is in possession of defendant No.1 i.e. the wife of Krishnappa and defendant Nos.2 and 3 i.e. the children of Krishnappa. These documents clearly reveal that the defendants are in possession of the schedule property. 9 12. The plaintiff claimed schedule property through defendants without any documents and without showing as to how he continued to be in possession of schedule property in survey No.87/1. Whereas, photographs produced by the defendants reveal that they have already obtained conversion order, khatha certificate and put up construction and shops on the side of the road. Therefore, the contention of learned counsel for plaintiff shows that the plaintiff is in possession and enjoyment of the suit schedule property, cannot be acceptable. However, if at all, any right is claimed through their ancestors, the plaintiff requires to prove the same with legal documents. Therefore, at this stage, it cannot be said that the plaintiff has made out prima facie case in his favour. On the other hand, defendants documents and index of land stands in the name of Krishnappa for survey No.87/1A1. After selling of 5 guntas of land, Krishnappa was in possession of 9 guntas of land and obtained conversion order in the year 2010. This document is not challenged by the plaintiff in the suit filed for bare injunction and therefore, seeking mandatory injunction to remove structure, without seeking declaration and possession, is not maintainable. Therefore, the balance of convenience lies in favour of defendants who have put up construction and they are in possession. The conversion order of the year 2010 reveals that the defendants are in possession and enjoyment of the suit schedule property. If 10 injunction is not granted, no irreparable loss would be caused to the plaintiff, on the other hand, loss would be caused to the defendants and their successors. Further, the trial Court without appreciating the documents on record, has simply allowed application restraining the defendants from interfering with the suit schedule property, ignoring their rights, and the claim of the plaintiff for mandatory injunction to remove structure put up by the defendants. Therefore, the impugned order passed by the trial Court is perverse and capricious and is liable to be set aside. 13. Accordingly, the following order is passed: (i) The appeal is allowed. (ii) The order of the trial Court dated 12.12.2024 granting injunction in favour of the respondent - plaintiff under Order XXXIX Rules 1 and 2 read with Section 151 of CPC, is hereby set aside. Sd/- (K.NATARAJAN) JUDGE CS CT:SK