CHAYAPATHI Vs. PRAKASH

JUDGEMENT

(1.) Plaintiff is in appeal challenging order passed by XIII Additional City-Civil Judge, Mayohall, Bangalore in O.S. No. 26707 of 2012, dated 29-10-2013 whereunder I.A. No. I filed under Order 39, Rules 1 and 2 of the Civil Procedure Code, 1908 seeking temporary injunction restraining the defendant from interfering with alleged possession of plaintiff till disposal of the suit came to be rejected. Plaintiff has filed a suit for perpetual injunction contending inter alia that his father Sri Doddamarappa has purchased and possessed suit schedule property having acquired the same under a registered sale deed dated 9-11-1953 and khatha of the suit property has been changed to his father's name and RTC extract would indicate the said fact. It has been contended that plaintiff's father was in possession and enjoyment of the property till his demise. Subsequently all the legal heirs of Sri Doddamarappa are in possession and enjoyment of the suit schedule property. They contended they have not sold any portion of the property and hence defendants are causing alleged interference which perforce them to file a suit for perpetual injunction and also application for grant of temporary injunction. On these grounds they contended that balance of convenience is in their favour and sought for temporary injunction. On service of suit summons defendants appeared and filed written statement denying the averments made in the plaint and also averments made in the application for temporary injunction. After examining the rival contentions the Trial Court initially granted an order of status quo by order dated 23-11-2012. Being aggrieved by the same defendant approached this Court in MFA No. 11752 of 2012. This Court by order dated 27-8-2013 disposed of the appeal with a direction to the Trial Court to take into consideration additional evidence to be produced by defendants and to reconsider I.A. No. I filed by plaintiff under Order 39, Rules 1 and 2 within a period of eight weeks from the date of receipt of certified copy of the order. It was also ordered that till disposal of interim application, order of status quo granted earlier is to be maintained. Subsequently Trial Court re-examined the contentions of the parties, reconsidered the documents produced by respective parties and also took into consideration additional evidence produced by defendants and held that plaintiff had suppressed all material facts and had not disclosed facts which was within his knowledge and as such it held there was no balance of convenience or prima facie case in his favour and accordingly rejected the application on 29-10-2013. Being aggrieved by the same this appeal is filed.

(2.) I have heard the arguments of Sri Amit Deshpande, learned Counsel appearing for appellant and Sri V.B. Shivakumar, learned Counsel appearing for respondents. Perused the order under challenge as also documents produced by both the parties before Trial Court which has been made available to me during the course of arguments by respective learned Advocates appearing for the parties. Parties are referred to as per their rank in the Trial Court.

(3.) It is the contention of Sri Amit Deshpande, learned Counsel appearing for plaintiff that Trial Court committed a serious error in not pursuing the documents produced by defendants regarding right, title and interest in proper perspective. Regarding documents produced by defendants though it did not pertain to suit schedule property it erred in coming to a conclusion that suit schedule property has lost characteristic of agricultural land and based on alleged layout plan and other documents produced by defendants order of status quo came to be dissolved without proper and cogent reasons. He would also submit that RTC extract produced by plaintiff would clearly indicate that khatha has been in the name of plaintiff and presumption under Section 133 of Karnataka Land Revenue Act, 1964 would arise about the contents of RTC extract in favour of plaintiff and non-consideration of this vital aspect by Trial Court has resulted in great miscarriage in the administration of justice. He would elaborate his submission by contending that Trial Court has not given any reason except referring to documents produced by defendants without taking into consideration the documents produced by plaintiff and these documents would clearly establish prima facie title in favour of plaintiff and it amounts to triable issue and as such Trial Court ought to have granted an order of temporary injunction. On these grounds he seeks for allowing the appeal by setting aside the order passed by Trial Court and allowing I.A. No. I filed before the Trial Court.