- 1 - NC: 2025:KHC:3735 MFA No. 7897 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH MISCELLANEOUS FIRST APPEAL NO.7897 OF 2024 (CPC) BETWEEN: 1. SRI. DAYALAN, S/O VEERASWAMY REDDIAR, AGED ABOUT 71 YEARS, R/O NO.10/3, 8TH CROSS, DAYANANDANAGAR, SRIRAMPURAM, BENGALURU -560 021. …APPELLANT (BY SRI. K.N.NITISH, ADVOCATE) AND: 1. SRI. BASAVARAJ M., S/O LATE MADAIAH, AGED ABOUT 42 YEARS. 2. SMT. MAHADEVAMMA, W/O LATE MADAIAH, AGED ABOUT 42 YEARS. BOTH RESIDING AT NO.71/1, 7TH MAIN ROAD, PRAKASHNAGAR, BENGALURU -560 021. …RESPONDENTS (BY SRI. VIVEKANANDA T.P., ADVOCATE FOR RESPONDENTS; SRI. B.G.RAJASHEKHAR & SRI. SHIVANANDA T.S., ADVOCATES FOR C/R1 AND R2) THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 24.10.2024 PASSED ON I.A.NO.1 IN O.S.NO.6667/2021 ON THE FILE OF THE LVI ADDITIONAL Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:3735 MFA No. 7897 of 2024 CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH 57), DISMISSING THE I.A.NO.1 FILED UNDER ORDER XXXIX RULE 1 AND 2 READ WITH SECTION 151 OF CPC. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH JUDGMENT Heard the learned counsel for the appellant and the learned counsel for the respondents. 2. This appeal is filed against the rejection of I.A.No.1 filed by the plaintiff under Order XXXIX Rule 1 and 2 read with Section 151 of CPC in O.S.No.6667/2021 vide order dated 24.10.2024. 3. The factual matrix of the case of the plaintiff before the Trial Court while seeking the relief of permanent injunction is that the plaintiff is the absolute owner in constructive possession of the suit schedule property. The defendants in collusion with third party are making hectic efforts to grab the suit schedule property and create third party rights with a malafide intention to make an unlawful gain and to cause loss and injury to the plaintiff. It is contended that balance of convenience is in his favour and he has got prima facie case. If the defendants succeed in their illegal and arbitrary acts, he will - 3 - NC: 2025:KHC:3735 MFA No. 7897 of 2024 suffer irreparable loss and injury. It is also contended that he has got a good case on merits. In the plaint it is stated that the suit property originally belonged to one Sri Natesh Mudaliar, who conveyed the said property to Smt. Anwar Bi and her son Sri Sayyed Khalil on 09.08.1947 vide a registered sale deed. Subsequently, the said Smt.Anwar Bi and Sri Sayyed Khalil sold the suit property to one Sri Shanmugam on 24.10.1977 for a valuable sale consideration vide a registered sale deed. It is contended that the said Shanmugam who was working in KEB, took loan from KEB and deposited the title deeds with the latter on 18.07.1978 and subsequently after the demise of Sri Shanmugan, his wife Smt.Mangalamma cleared the aforesaid loan. It is contended that Sri Sayyed Khalil executed a rectification deed in favour of Smt.Mangalamma, clarifying the survey number of the suit property as 66 instead of 64. It is contended that after the demise of Smt.Mangalamma, her only son Sri Rajarathnam executed an absolute deed of sale on 22.09.1999 in favour of the plaintiff. It is contended that ever since the plaintiff has been enjoying the peaceful possession of the suit property which is morefully described in the schedule. It is contended that the khatha and all the revenue records are standing in the name of the plaintiff. - 4 - NC: 2025:KHC:3735 MFA No. 7897 of 2024 4. It is contended that on 23.01.2008, one late N.Madaiah filed a suit for declaration, possession and mesne profits against Smt. Padma and others in O.S.No.6620/2008. It was his case that he was the absolute owner of the property bearing old No.159, New No.38/1, situated at III Cross, Robertson Block, Ramachandrapuram, Bengaluru, which he had purportedly purchased from Maimunnisa under a registered sale deed dated 13.04.1973. Furthermore, the said Madaiah purportedly applied for transfer of khata in his name before the BMP authorities which was objected by Mangalamma, who was the mother of the defendants in O.S.No.6620/2008. According to the BMP authorities, khata of the property claimed by Madaiah stood in the name of Maimunissa. It is contended that the said Madaiah had let out his property to Maimunissa for a monthly rent of Rs.45/- and in order to evict her, he had filed an eviction petition in HRC No.1549/87 which came to be allowed on 30.08.1987. It is contended that the said Madaiah filed an execution petition against Maimunissa in Ex.No.414/1994, which was objected by Mangalamma by filing objector application and the said application was disallowed and the Court comes to the conclusion that there was no dispute with regard to the identity of the property belonging to Madaiah. The said decree could not - 5 - NC: 2025:KHC:3735 MFA No. 7897 of 2024 be executed and the Bailiff returned the delivery warrant without executing the same. Having no other alternative, the said Madaiah filed O.S.No.6620/2008 against the legal heirs of Mangalamma for declaration, possession and mesne profits. It is further contended that during the course of the trial, the said Madaiah along with his henchmen tried to interfere with the peaceful possession of the suit property by affixing suit notice/summons on the wall. Immediately, the plaintiff herein filed an application under Order I Rule 10 of CPC, seeking to intervene and come on record as defendant No.5 in O.S.No.6620/2008. The said application came to be allowed and the plaintiff herein filed a written statement contending that Madaiah’s property in O.S.No.6620/2008 was different from the suit property. In order to prove his case, Madaiah examined himself as P.W.1 and another witness as P.W.2 and got marked the documents at Exs.P.1 to 44. Per contra, the plaintiff examined himself as D.W.1 and got marked the documents at Exs.D.1 to 18. The description of the suit property in O.S.No.6620/2008 claimed by Madaiah is in respect of house bearing Old No.149, New No.38/1, present No.41/7. 5. The Court having considered the material on record pronounced the judgment declaring Madaiah as the owner of the - 6 - NC: 2025:KHC:3735 MFA No. 7897 of 2024 suit schedule property to the extent and boundaries as described. However, it is pertinent here to note that the Court in paragraph No.8 of the judgment observed that the suit property measuring 20 x 60 ft. in Municipal No.41 originally belonged to Syed Khalil and Anwar Bi and as such, their names had been entered in khata on 30.07.1965 and thereafter, an endorsement was issued on 09.08.1974. According to the available materials on record, the suit property bearing site No.68 has now been assigned site No.41. It is contended that in O.S.No.6620/2008, the Court held that the property claimed by Madaiah and the suit property herein cannot be one and the same and the relief sought by Madaiah for declaration that the sale deed dated 26.10.1977 in so far as the suit property is concerned cannot be granted. The Court also observed that “invariably there is no reference of suit boundaries in Ex.D.7. In fact, there is no connection between the suit property and Ex.D.7, therefore, the relief pertaining to sale deed dated 26.10.1977 cannot be granted to the plaintiff. However, the plaintiff is entitled for possession of the suit property in reference to the boundaries and the extent described.” Subsequently, the said Madaiah passed away and his son and his wife who are none other than the defendants in the instant - 7 - NC: 2025:KHC:3735 MFA No. 7897 of 2024 case filed Ex.No.1853/2018. The Court issued notice to the judgment debtors in the aforesaid execution petition. Shockingly, the plaintiff herein was also made as JDR No.5 and on 13.09.2019, the plaintiff filed a detailed statement of objections narrating all the facts and prayed for rejection of the petition against him, there was no decree against him. Such being the case on 06.12.2021, the defendants along with some men claiming to be Court officials came near the suit property in order to execute the delivery warrant. Immediately, the plaintiff successfully resisted the interference made by the defendants and tried to reason out that the suit property was different from the property of the defendants. However, without heeding to the requests made by the plaintiffs, the defendants and their henchmen threatened the plaintiff that if he did not vacate and handover the suit property, they would once again come along with police and other anti social elements and would forcefully remove the plaintiff from his peaceful enjoyment and possession of the suit property. Hence, without any other alternative, the plaintiff filed the suit and sought for the relief of temporary injunction before the Trial Court. 6. The defendants appeared and filed the written statement contending that the plaintiff is guilty of suppression of - 8 - NC: 2025:KHC:3735 MFA No. 7897 of 2024 facts and he has not come to the Court with clean hands. It is contended that the suit property originally belonged to one Sri Natesh Mudaliar is true and correct. It is contended that Smt. Anwar Bi and her son Sri Sayyed Khalil purchased the same from Sri Natesh Mudaliar is false. It is contended that the said schedule property was solely purchased by Smt.Anwar Bi. Smt.Anwar Bi and Sri Sayyed Khalil sold the suit schedule property to one Shanmugam on 24.10.1997 was denied in the written statement. The contention that the said Shanmugam who was working in KEB took a loan from KEB and deposited the title deeds with the latter on 18.07.1978 and subsequently after the demise of Sri Shanmugan, his wife Smt.Mangalamma cleared the aforesaid loan, are denied. However, admits the filing of the suit for declaration, possession and for mesne profits against the defendants in O.S.No.6620/2008. The claim that the defendant is the absolute owner of the suit property bearing old No.159/38/1 situated at III Cross, Robertson Block, Ramachandrapuram, Bengaluru is false and incorrect. It is contended that the schedule property was purchased from Maimunissa under a registered sale deed dated 13.04.1973. It is admitted that Madaiah purportedly applied for transfer of khata and the khata was standing in the name of Maimunissa is - 9 - NC: 2025:KHC:3735 MFA No. 7897 of 2024 not disputed and the fact that Maimunissa was a tenant in respect of the property and thereafter HRC was filed and allowed is true. It is contended that Maimunissa has violated the terms of the lease agreement and has sub-let the schedule property in favour of Mangalamma, who is the vendor of the plaintiff herein. The defendants also not disputed the fact that an application was filed in Ex.No.414/1994 invoking Section 47 of CPC and the same was objected and the application was not allowed. It is contended that Madaiah filed O.S.No.6620/2008 against the legal heirs of Mangalamma for declaration is not in dispute. It is contended that the plaintiff filed an application under order I Rule 10 of CPC and the same was allowed and he contested the matter also not in dispute. It is contended that the very contention of the plaintiff is not accepted and the decree was granted in respect of the property bearing Old No.149, New No.38/1 is correct, but present No.441/7 is false and incorrect. It is contended that the property is situated at III Cross, Robertson Block, Ramachandrapuram, Bangalore measuring east to west 20 ft. and north to south 30 ft. admeasuring 600 sq.ft. is true and correct. It is contended that when the decree was granted, the schedule is also mentioned as 38/1 and present number is 441/7. It is contended that the very claim - 10 - NC: 2025:KHC:3735 MFA No. 7897 of 2024 made by the plaintiff that they have derived the title from Syed Khalil, who is the son of Anwar Bi is not correct and he was not having any right to execute the sale deed in favour of the plaintiff since already the mother had executed the gift deed in favour of two daughters i.e., Maimunissa and Zaibunissa and from Maimunissa only the defendant had purchased the property and hence the question of granting the temporary injunction does not arise. 7. Having taken note of the pleadings of both the parties, the Trial Court formulated the points for consideration as to whether the plaintiff has made a prima facie case for granting the relief of temporary injunction, whether the balance of convenience lies in favour of the plaintiff, whether the plaintiff would be put to irreparable loss or injury if an order of temporary injunction is not granted, whether the defendants have made out sufficient grounds to vacate the order of temporary injunction granted in favour of the plaintiff on 10.12.2021? Having considered the pleadings of the parties and the material on record, the Trial Court answered point Nos.1 to 4 in the negative in coming to the conclusion that no prima facie case is made in favour of the plaintiff and no balance of convenience and no hardship is caused to the plaintiff and on - 11 - NC: 2025:KHC:3735 MFA No. 7897 of 2024 the other hand comes to the conclusion that the defendants have made out sufficient grounds to vacate the order of temporary injunction by answering point No.5 in the affirmative. 8. Being aggrieved by the said order, the present appeal is filed before this Court. 9. The main contention of the learned counsel for the appellant before this Court is that it is not in dispute that originally the property belonged to one Sri Natesh Mudaliar and he sold the property in favour of Smt.Anwar Bi and her son Sri Sayyed Khalil on 09.08.1947. It is the contention that Sayyed Khalil sold the property to an extent of 20 x 60 ft. in favour of Chikka Nanjundappa and the retained property was sold again by Sayyed Khalil in favour of Shanmugam to an extent of 20 x 60 feet. The learned counsel contend that the plaintiff had purchased the property from the legal heirs of Shanmugam in the year 1977 and the property is described as No.41/7, old No.41. The learned counsel brought to the notice of this Court that the khata was transferred in favour of the plaintiff and all the revenue documents stands in the name of the plaintiff as on the date of filing of the suit. The learned counsel contend that the defendants’ father Madaiah had purchased the property on - 12 - NC: 2025:KHC:3735 MFA No. 7897 of 2024 13.04.1973 and the property number is 38/1 and not property No.41. The property is measuring 20 x 30 feet and the same was purchased from Maimunissa. The learned counsel contend that when the said Madaiah filed HRC case against Maimunissa, the same was decreed and hence execution petition was filed for taking possession in Ex.No.414/1994. The learned counsel contend that the vendor of the plaintiff filed obstruction application and the same was dismissed with an observation that claim is made in respect of property No.41/7 and not in respect of property No.38/1 and when the HRC decree was not executed, suit was filed in O.S.No.6620/2008 against the vendor of the plaintiff, wherein relief was sought for declaration and possession. The learned counsel contend that while filing the suit, in an ingenious method property is described as 38/1 and also property 41/7. When the plaintiff came to know about the same, he filed an impleading application and the same was allowed and on contest, suit was decreed in respect of property No.38/1, which is morefully described in Ex.P.1 and not in respect of property bearing No.41/7. The learned counsel contend that the declaration relief granted in favour of the plaintiff in O.S.No.6620/2008 does not bind the plaintiff herein. The learned counsel contend that Ex.No.1853/2018 was filed - 13 - NC: 2025:KHC:3735 MFA No. 7897 of 2024 wherein the decree holder filed an application in respect of 38/1 and based on that application, when the delivery warrant was issued, the same was resisted and immediately filed a suit when they came near the property on 06.12.2021 and the suit was filed on 08.12.2021. 10. The learned counsel brought to the notice of this Court the averments made in paragraph No.17(g) of the written statement, wherein the defendants have contended that they are not going to interfere with the possession of the plaintiff, but delivery warrant was taken in respect of property No.41/7 and not in respect of 38 and 38/1. The learned counsel contend that during the pendency of this appeal, an attempt was made to demolish the property and a portion of the property was demolished and hence immediately the appellant approached this Court and this Court granted the relief not to further demolish the building. The learned counsel contend that the decree was granted in favour of property No.38/1 and not in respect of property No.41/7 and property No.41/7 belongs to the plaintiff. The Trial Court committed an error in passing an order of temporary injunction in coming to the conclusion that the plaintiff has not made out a case. Though the Trial Court discussed the case of the plaintiff and defendants, in paragraph - 14 - NC: 2025:KHC:3735 MFA No. 7897 of 2024 No.12, the Trial Court comes to the conclusion that the defendants have taken the possession to an extent of 600 ft. in the suit schedule property as per the delivery warrant issued in Ex.P.No.1853/2018. It is also observed that it is not in dispute that the father of defendant No.1 Sri Madaiah had filed a suit in O.S.No.6620/2008 and it was decreed on 06.06.2017. It is not in dispute that the plaintiff is defendant No.5 in the said case. Though, it is observed in paragraph No.8 page 30 of the said judgment that there is no connection between the suit property and boundary in Ex.D.7 and though it is observed at page No.29 that the property in Ex.D.7 and the suit property cannot be one and the same, the said suit has been decreed holding that the plaintiff is the owner of the suit schedule property of the said case to the extent and boundaries and the details of the property as described in Ex.P.1. Further, an order is also passed that the plaintiff is entitled for the possession of the property within six months from the date of the decree. When the decree has already been passed and possession has been taken in terms of Ex.P.No.1853/2018, the question of granting temporary injunction in favour of the plaintiff does not arise and hence rejected the same. - 15 - NC: 2025:KHC:3735 MFA No. 7897 of 2024 11. Per contra, the learned counsel for the respondents contend that it is not in dispute that originally the property belonged to one Natesh Mudaliar. The learned counsel contend that sale deed was made in favour of Smt.Anwar Bi and her son Sri Sayyed Khalil and Sayyed Khalil sold the property in favour of Chikka Nanjundappa in the year 1968 with regard to half portion of the property i.e., 20 x 60 feet. The learned counsel contend that the mother Smt.Anwar Bi had executed gift deed in favour of her two daughters i.e., Maimunissa and Zaibunissa in the year 1969. The learned counsel contend that this sale deed was executed by the son Sayyed Khalil in favour of Shanmugam on 24.10.1977. The learned counsel contend that on the date of executing the sale deed, Sayyed Khalil was not having any right in respect of the said property since he had disposed of a portion of the property on 30.12.1968 and mother also disposed of remaining portion of property in favour of two daughters Maimunissa and Zaibunissa. When such being the case, the very contention of the appellant that Sayyed Khalil was having right in respect of the property cannot be accepted and though HRC petition was filed and decree was obtained, in the execution petition an application was filed as objector and the same was dismissed. Thereafter also when the suit was filed, an - 16 - NC: 2025:KHC:3735 MFA No. 7897 of 2024 impleading application was filed and resisted the same and the Trial Court granted the relief of declaration declaring that the respondents/defendants are the owner of the property and possession has been taken in terms of delivery warrant and the question of granting the relief of temporary injunction does not arise. The Trial Court rightly comes to the conclusion that when the possession was taken in terms of execution, the question of granting temporary injunction does not arise. 12. Having heard the learned counsel for the appellant and the learned counsel for the respondents and considering the material available on record, the points that arise for the consideration of this Court are: (i) Whether the Trial Court committed an error in not granting the relief of temporary injunction in rejecting the application filed by the plaintiff/appellant filed under Order XXXIX Rule 1 and 2 of CPC and whether it requires interference of this Court? (ii) What order? 13. Having heard the learned counsel for the appellant and the learned counsel for the respondents in length, both the parties not disputes the fact that the property originally belonged to one Sri Natesh Mudaliar and the same was sold in - 17 - NC: 2025:KHC:3735 MFA No. 7897 of 2024 favour of Smt.Anwar Bi and Sri Sayyed Khalil in the year 1947. It is not in dispute that the son of Smt.Anwar Bi i..e, Sri Sayyed Khalil, who is also a joint purchaser along with the mother, sold half portion of the property to an extent of 20 x 60 feet in the year 1968 and in the said sale deed the mother was not a party. It is important to note that the respondents also claim that the mother had executed a gift deed in favour of two daughters Maimunissa and Zaibunissa in respect of the remaining property to an extent of 20 x 30 feet and 20 x 30 feet i.e., retained portion is concerned. It is not in dispute that the vendor of the plaintiff also purchased the property from Sayyed Khalil in the year 1977, but in the meanwhile already portion of the property which was gifted in favour of Maimunissa was sold in favour of the father of the defendants Madaiah in the year 1973. It is important to note that when the suit was filed by the defendants in O.S.No.6620/2008, a decree was passed in favour of Madaiah in respect of the property which was morefully described in Ex.D.1 sale deed executed by Maimunissa in favour of Madaiah. It has to be noted that the very dispute is with regard to the flow of title is concerned and the respondents dispute the very existence of the property to sell the property in favour of the plaintiff in the year 1977. The learned counsel contend that - 18 - NC: 2025:KHC:3735 MFA No. 7897 of 2024 while executing the gift deed, no description was given that the property was purchased by Anwar Bi and there is no narration in the gift deed. But having taken note of the schedule mentioned in both the gift deeds, it is mentioned that the property on the west belongs to Sayyed Khalil, but the fact that Sayyed Khalil sold a portion of the property is also not in dispute and both of them not disputes the same. 14. The learned counsel for the appellant brought to the notice of this Court that when the very sale deed was questioned by the defendants in O.S.No.6620/2008, the Trial Court while disposing of the suit answered the very same issue in the negative and not declared the same as null and vide as claimed by the defendants. The Court has to take note of the material on record regarding flow of title between the parties are concerned. Apart from that, there is a gift deed in favour of two daughters of Smt.Anwar Bi in the year 1969 itself. It is important to note that whether these gift deeds are arising out of the property purchased jointly by Anwar Bi and Sayyed Khalil and when the learned counsel for the appellant disputes that no reference was made in the gift deed, the matter has to be decided by the Trial Court. It is important to note that when the temporary injunction was not granted and when the appeal is - 19 - NC: 2025:KHC:3735 MFA No. 7897 of 2024 pending, the respondents highhandedly made an attempt to demolish the property and portion of the property was demolished. There is a serious dispute with regard to the identity of the property since decree was granted in favour of the defendants in respect of property bearing No.38/1 and the appellant/plaintiff claims the property bearing No.41/7. The Trial Court granted the relief in O.S.No.6620/2008 in respect of Ex.P.1 under which the defendants had purchased the property from Maimunissa and whether property No.38/1 and property No.41/7 which both of them are claiming are the same property or different property has to be considered. No doubt, in HRC case when the objector application was filed, finding was given that both the properties are different, but no material is placed on record to show how the property number was assigned Old No.41, New No.41/7 and the defendants claim property No.38/1 in terms of Ex.P.1. When such being the dispute with regard to the identity of the property and both of them are claiming right in respect of the very same property based on the title of the appellant as well as the defendants are claiming title based on the title of the sale deed executed in favour of their father, it is appropriate to direct both the parties to maintain status quo till the disposal of the suit. - 20 - NC: 2025:KHC:3735 MFA No. 7897 of 2024 15. With these observations, the appeal is disposed of. Sd/- (H.P.SANDESH) JUDGE MD List No.: 1 Sl No.: 35