Ravi V Hosmani, J
1. Challenging order dated 10.10.2023 passed by LII Addl. City Civil and Sessions Judge, Bengaluru, in O.S.no.5156/2021 on I.A.no.1/21 filed under
Order XXXIX Rules 1 and 2 of Code of Civil Procedure, 1908 ('CPC' for short), this appeal is filed.
2. Smt.Nalina Mayegowda, learned Senior Counsel appearing for Sri D.V. Shashank and Smt.Anusha B. Reddy, Advocates for appellant submitted
that appellant was plaintiff in suit filed for permanent injunction etc. In said suit, I.A.no.1 was filed by plaintiff for temporary injunction restraining
defendant from changing of nature of schedule property and putting up construction or from interfering with plaintiffs' peaceful possession and
enjoyment of suit schedule property.
3. It was submitted, under impugned order, trial Court rejected application on untenable grounds. It was submitted subject matter of suit was site
no.52, Omkar layout formed in Sy.no.17/2A (wrongly described as Sy.no.3/3B in sale deed dated 24.11.1994) of Ganakallu village, Kengeri Hobli,
Bengaluru, bounded on East by 25 ft. road; West and North by property of P.S. Bhat and South by property of Suresh Hegde. It was submitted,
plaintiff purchased suit property under sale deed dated 24.11.1994. But, due to inadvertence, suit property was wrongly described as Sy.no.3/3B of
Ganakallu village.
4. It was submitted, Taluk Surveyor had identified suit properties as situated in Sy.no.17/2A of Ganakallu village. Same was relied on by plaintiff in
O.S.no.8729/2004 filed by her earlier, seeking for declaration of title and permanent injunction. It was submitted, on 29.10.2005, trial Court therein had
directed parties to maintain status quo, taking note of fact that plaintiff's name was mutated in respect of 7 guntas in Sy.no.3/3B, Krishi Pass book
produced by plaintiff and letter issued by BDA calling upon plaintiff to pay development charges after formation of Omkarnagar layout. It was
submitted, said order was not challenged. However, said suit was dismissed for non-prosecution. When Misc.no.57/2014 filed for its restoration was
pending, some third parties filed O.S.no.9897/2006 for declaration of title in respect of land bearing Sy.no.3/3(B) of Ganakallu.
5. On ground that defendant had purchased suit property therein, from said third parties, present defendant had sought impleadment in suit. But,
application was rejected as sale deed was executed during pendency of suit. In W.P.no.5860/2021, this Court stayed further proceedings in
O.S.no.9897/2006.
6. It was submitted on 20.09.2021, defendant trespassed into schedule property and demolished wall and fence put up by plaintiff. Complaint given to
police by plaintiff was found to be ineffective. On said cause of action, present suit, was filed for Permanent injunction etc.
7. It was submitted, while passing impugned order, trial Court failed to take note of fact that plaintiff was absolute owner in possession of scheduled
property as per Surveyor's report. Therefore, observation that plaintiff was not in possession was contrary to documents relied on by plaintiff. It was
submitted, though initially there was error in description of suit property in O.S.no.8729/2004, plaintiff had subsequently, filed application for
amendment, which was allowed and error in description was removed. It was submitted, order allowing amendment was not challenged by
defendants. Therefore, they were estopped from contending about error in description of suit property.
8. It was further submitted, at time of passing impugned order, trial Court virtually held mini trial, deciding title over suit property, which was contrary
to law laid down by Hon'ble Supreme Court in Anand Prasad Agarwalla v. Tarkeshwar Prasad and Ors., reported in 2001 (5) SCC 568 and
Zenit Mataplast Private Limited v. State of Maharashtra and Ors., reported in 2009 (10) SCC 388, respectively.
9. It was submitted even documents produced by plaintiff were considered by trial Court, properly. It erred in assuming that order of status quo
granted in earlier suit was against plaintiff. It was also submitted, though plaintiff herein had earlier filed comprehensive suit for declaration of title,
same would not bar filing of suit for bare injunction, as held in Smt.Jagadishwari v. Smt.M.Revathi and Ors., reported in ILR 2024 KAR 1365.
On above grounds, learned counsel for appellants, sought for allowing appeal in ends of justice.
10. On other hand, Sri Bipin Hegde, learned counsel for respondent/defendant at outset questioned maintainability of present suit, on ground that reliefs
sought in earlier suit and present suit were same. It was submitted, said suit was initially for permanent injunction, and relief of declaration of title was
sought after amendment of plaint.
11. It was submitted, perusal of schedule in sale deed dated 24.11.1994 executed in favour of plaintiff would indicate that it was in respect of 7 guntas
in Sy.no.3/3B. Therefore, plaintiff cannot claim any right in respect of Sy.no.17/2A. It was submitted, plaintiff had suppressed about filing of suit for
rectification against her vendor in O.S.no.3599/2008, which was dismissed on 18.06.2009, after full fledged trial. It was submitted, trial Court had
specifically held, as per BDA, suit property was situated in Sy.no.3/3B and not Sy.no.17/2A. Said decree was challenged after 14 years.
12. It was also submitted order of status quo granted in O.S.no.8729/2004 was prior to amendment of plaint schedule and same would not continue
after amendment. It was submitted, Surveyor's report on which plaintiff was relying in O.S.no.8729/2004, was not in pursuance of directions issued by
Court, but, secured independently without notice to defendants. Therefore, as observed by trial Court, contents of said report were required to be
proved during trial.
13. It was submitted, while passing impugned order trial Court had held plaintiff failed to prima facie establish that schedule property was situated in
Sy.no.17/2A. It also held, since plaintiff's comprehensive suit i.e. O.S.no.8724/2004, was restored and pending, any further observations in present suit
would affect parties in said suit.
14. In view of above, it was contended, admittedly plaintiff had sought declaration of her title in respect of suit property by claiming that it was situated
in Sy.no.17/2A. It was submitted, until such declaration was granted, plaintiff would not be justified in making such claims in this suit. Thus, trial Court
had taken note of all material on record and held that plaintiff had failed to establish prima facie case, balance of convenience and irreparable loss and
injury by assigning various reasons. Hence, same did not call for interference.
15. Heard learned counsel and perused impugned order.
16. It is seen that main grounds of challenge against impugned order are failure to consider Surveyor's report and perversity of conclusion arrived at
by trial Court. Hence, following points would arise for consideration:
1. Whether impugned order passed by trial Court is untenable for failure to consider Survey Report?
2. Whether its conclusions are perverse calling for interference?
17. Bare perusal of impugned order reveals that after adverting to pleadings and contentions of parties, trial Court framed proper points for
consideration and thereafter passed reasoned order.
18. Though contention is urged about non-consideration of Taluk Surveyor's report, perusal of impugned order reveals that same has been referred to.
While it would be available for appellant to contend that there was no proper consideration, no case of non-consideration is made out. Point no.1 is
answered in negative.
19. To substantiate contention regarding conclusion being perverse, it was submitted while passing impugned order, learned trial Judge had virtually
held mini trial and conclusions arrived at were on merits of suit. But, it is seen impugned order is on following findings by trial Court. Firstly, it held that
while passing order of status quo, Court had not held plaintiff being in possession of suit property. But in view of order dated 29.10.2005 passed on
I.A.no.I in O.S.no.8729/2004, extracted below, same would be contrary to record.
Therefore, it may be stated that plaintiff has made of existence of her property as also her possession over same. …
20. Secondly, it held O.S.no.8729/2004 is comprehensive in nature and plaintiff has to workout her remedies in said suit and therefore, no order of
temporary injunction can be granted. Perusal of cause of action in O.S.no.8729/2004 and present suit reveal that they are on different cause of action.
Since, defendants had filed suit against plaintiff, while O.S.no.8729/2004 stood dismissed for non-prosecution, present suit would be on separate cause
of action. Therefore, observation would be untenable.
21. Thirdly, it held documents produced namely Exs.P.1 to P.25 are not sufficient to prove prima facie case, by referring to dismissal of
O.S.no.3599/2008. Though, appeal is stated to have been filed, same is after delay of more than decade and there is no interim order obtained. But, as
rightly contended by learned counsel for defendant, plaintiff has not disclosed about above mentioned suit in plaint.
22. Insofar as failure to consider Taluk Surveyor's report and erroneous reference to dismissal of O.S.no.3599/2008, when it is challenged in RFA
no.838/2023, trial Court though referred to various reasons are assigned therein for not accepting same, trial Court herein has ultimately observed,
Survey Report is required to be proved by plaintiff. Therefore, trial Court has assigned reason for non-consideration of report at present stage, which
cannot be stated to be perverse.
23. From above, it is seen that while passing order on I.A.no.1 in O.S.no.8729/2004, trial Court has given specific finding about plaintiff's possession
over suit property. It also held plaintiff had established prima facie case for grant of temporary injunction, by rejecting defendants' prayer for vacating
ad interim injunction. Said order was in force from 14.12.2004 till 16.01.2014 i.e. during entire period, when O.S.no.3599/2008 was pending. And with
restoration of O.S.no.8729/2004, said order has revived. Therefore, rejection of I.A.no.1/21 would be untenable. Point no.2 isa nswered in
affirmative. Hence, following:
ORDER
i. Appeal is allowed.
ii. Impugned order dated 10.10.2023 passed by LII Addl. City Civil and Sessions Judge, Bengaluru, in O.S.no.5156/2021 on I.A.no.1/2021 filed under
Order XXXIX Rules 1 and 2 of CPC is set-aside.
iii. I.A.no.1/21 is allowed in part, directing parties to maintain status quo regarding suit property as ordered on I.A.no.I in O.S.no.8729/2004 on
29.10.2005 till disposal of suit.
iv. It is clarified that observations and findings of trial Court in impugned order as well as by this Court in present order would be confined to interim
stage and would not bind trial Court at time of passing final judgment.
v. In view of disposal of appeal, pending applications are also disposed of.
