SUBHAS ROAD, DHARWAD v. BANGALORE

(By Sri. SRINAND A. PACHHAPURE, ADV. FOR R.1 & 2, NOTICE TO R-3 DISPENSED WITH, R-4 DELETED VIDE ORDER DT:16.11.11) THIS MFA IS FILED UNDER ORDER 43 RULE 1 OF CPC, PRAYING TO SET ASIDE THE IMPUGNED ORDER ON I.A.NO.1, DATED:03-08-2010 PASSED IN 0.S.NO.62/2009 ON THE FILE OF THE III-ADDL.CIVIL JUDGE (SR.DN) DHARWAD, AND TO REJECT THE I.A.I, AND ETC. THE MFA COMING ON FOR ADMISSION THIS DAY, THE COURT PASSED THE FOLLOWING: JUDGMENT The aj,peilants who are defendants 3 to 5 in

0.S.62/2009 pending on the file of the 3 Addi.Civil Judge (Sr.Dn), Dharwad, instituted by respondents 1 2/plaintiffs, to pass a decree of declaration and perpetual injunction In respect of the 4 items of properties stated in the plaint, have flied this appeal questning an order of 3 temporary injunction passed on I.A.I, whereby, appellants were restrained from interfering with the possession and enjoyment of the suit properties by the plaintiffs. The properties in respect of which the suit has been instituted, has been stated in para-3 of the plaint. The defendants 3 to 5, have flied written statement and objections to I.A.I In the trial Court. Defendants 1 and 2 have also filed objections to I.A.I flied In the suit.

2. From the pleadings, it is apparent that neither the appellants nor respondents 3 and 4/defendants 1 and 2, have made any claim in respect of the suit prpperties shown at item Nos.1 and 2 of para-3 of the plaint. The dispute Is only in respect of the two items of properties, shown at Sl.Nos.3 and 4 of para-3 of the plaint.

3. The plaintiffs have admitted that, item Nos.3 and 4 — suit properties, belong to the defendants 1 and 2 and that they have sold the same to the defendants- 3 to 5, i.e. the appellants. The claim of the plaintiffs to the said two items of properties is based on an agreement of sale of the year 1993. The appellants have made claim to the \14 4 said two items of properties based on a sale deed dated

15.7.2003 executed In their favour by respondents 3 and

4. AccordIng to the plaintiffs, the said two Items of properties are vacant plots and that they are making use of the same to sell building constructIon materials. They alleged that were sought to be illegally dispossessed by the defendants. The defendants 3 to S on the other hand contended that the alleged agreement of sale on the basis of which the plaintiffs have made the claim to the said two items of properties is a make believe document, and that they having purchased the said two items of properties under a sale deed dated 15.7.2003 and the mutation having been carried out in their names and they having been put In actual possession and lawful enjoyment by their vendors they are holding and enjoying the same and that they have paid tax to the local authorIty, apart from payment of electricIty charges to the HESCOM i.e. in respect of the shed constructed therein and that the suit being wholly untenable, the claim for grant of temporary injunction, is equally untena1bie. 5

5. Defendants 1 and 2, in their statement of objections flied to I.A.I, on 16.7.2009, have denied the execution of any agreement of saie In favour of the plaintiffs and further they have stated that the document on which the plaintiffs have made claim Is a forged one and that they have lodged a complaint against plaintiffs. They have questioned the maintainability of the suit.

6. Sri K. L. Path, learned counsel appearing for the appellants contended that the learned trial Judge has seriously erred In allowing I.A.I and submitted that the plaintiffs, indisputedly, being not the owners of the item Nos.3 and 4 of the plaint/suit property and defendants 1 and 2 having admittedly been the owners of the said two items of properties, which having been, indisputedly sold In favour of the appellants on 15.7.2003, under a registered sale deed and the mutation having been transferred and the possession and enjoyment of appellants having been establIshed, the Impugned order Is wholly arbitrary, capricious, perverse and illegal. The learned counsel submitted that, despite the plaintiffs not 6 making out a prima fade case, based on photographs which are nothing but make-believe and irrelevant records, I.A.I has been allowed and the order impugned being against the materials on record placed by the appellants and also well settled principles of law, may be set asIde.

7. Sri Srinand A. Pachchapure, learned counsel appearing for the respondents 1 and 2/plaintiffs, on the other hand contended that, the trial court having perused the record and In sound exercise of the discretion vested in it, allowed I.A.I. The learned counsel submItted that the plaintiffs will not change the nature of the two items of properties in dispute and that they would render ready cooperation to the trial Court to decide expeditiously. The learned counsel further submitted that, in the facts and cIrcumstances of the case, the impugned order may not be interfered with.

8. KeepIng in view the rival contentions, I have perused the records. The point for consideration is: Whether the impugned order Is arbItrary, perverse, capricious and illegal?” 7

9. The suit properties at Sl.Nos.3 and 4 of para-3 of the plaint, Indisputedly, belonged to defendants 1 and 2 and that they sold the same on 15.7.2003 to defendants 3 to 5. The plaintiffs have made claim to the said two Items of properties based on an alleged agreement of sale of the year 1993. Concededly, the sale deed pursuant to the said agreement of sale has.not been executed by defendants 1 and 2 in favour of the plaintiffs. The suit filed Is not for passing a decree of specific performance of the contract. The plaintiffs have sought declaratory relief to declare them as absolute owners having title, possession and enjoyment of the suit properties and to pass decree of perpetual injunction against the defendants.

10. The defendants 1 and 2, concededly, being owners of the said property, sold the two items of properties favour of defendants 3 to 5. In the circumstances, the suit to pass a decree of perpetual injunction primafacie is not maintainable. The plaintiffs having not obtained an absoiute sale deed from the owners of the said properties and having not made a claim based on acquiring of any prospective right, the suit for passing \‘ 8 of decree of declaration is prima facie not maintainable. The maintainability of the suit being an important issue for consideration to answer the first element i.e. the prima fade nature of the case of the plaintiffs, the suit Instituted reliefs noticed supra, maintainable and the prima facie case having not been made out, the qUestion of consideration of the other two elements to grant an order of temporary injunction I.e. the balance of convenience and Irreparabie loss and injury do not arise for consideration. The learned trial Judge, without correctly noticing the pleadings and the record of the case and by misdirecting himself, has allowed I.A.I and has passed the order of temporary injunction. The impugned order Is arbitrary and perverse for not noticing the material aspects of the case. Consequently, impugned order cannot be sustained. In the result, the appeal Is allowed and the Impugned order Is set-asIde. I.A.I flied In the suit shall stand dismissed. However, the appellants/defendants 3 to 5, are restrained from putting up any permanent building on the property purchased by them under the sale deed 9 dated 18.7.2003 from defendants 1 and 2 i.e. properties shown at Si.Nos.3 and 4 of para-3 of the plaint, upto 31.12.2012 or till the final decision in the suit, whichever event is earlier. The pleadings in the suit being complete, the trial court is directed to frame the Issues before 15.1.2012 if not already framed. The plaintiffs are directed to adduce and complete their side of evidence within 3 months from the date the suit is posted for trial. The defendants are directed to adduce and complete their side of evidence within three months from the date the plaintiffs’ side of evidence is closed. The trial Court is directed to decide the suit, as expeditiously as possible and at any event, before

31.12.2012. Needless to observe that, the observations made supra being limited to record finding relating to prima fade nature of the suit, shall not be construed as expression of opinion on the merit of the case, which is required to be tried and decided in accordance with law. 10 In the circumstances of the case, parties are directed to bear their respective costs. Sd/ JUDGE Sub/