JAYAMMA vs VANI MURLIDHAR
- Court
- Karnataka High Court
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MFA No. 6731 of 2026
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 16 DAY OF OCTOBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
MISCELLANEOUS FIRST APPEAL NO. 6731 OF 2026 (CPC)
BETWEEN:
JAYAMMA
W/O S. RAJU,
AGED ABOUT 50 YEARS
R/AT NO.17, NEAR TCH COLLEGE
HARINAGAR CROSS,
MUNISHWARA BLOCK,
ANJANAPURA
BENGALURU-560 062
…APPELLANT
(BY SRI.NAVEENKUMAR S., ADVOCATE)
AND:
VANI MURLIDHAR
W/O MURLIDHAR
AGED ABOUT 64 YEARS
R/AT NO.82, 39TH B CROSS,
MR LAYOUT, 14TH MAIN
4TH BLOCK JAYANAGAR
BENGALURU- 560 041
…RESPONDENT
(BY SRI.SHIVARUDRAPPA SHETKAR., ADVOCATE FOR C/R)
THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CPC,
AGAINST THE ORDER DT. 29.07.2026 PASSED ON IA NO.1 IN
O.S.NO. 2549/2026 ON THE FILE OF THE XXXV ADDITIONAL
Digitally
signed by
VINUTHA M
Location:
HIGH
COURT OF
KARNATAKA
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CITY CIVIL AND SESSIONS JUDGE, BENGALURU CCH-36,
ALLOWING THE IA NO. 1 FILED U/O.39 RULE 1 AND 2 OF CPC,
1908.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
ORAL JUDGMENT
This appeal is preferred by the appellant, who is the
defendant before the trial Court, questioning the impugned
order dated 29.07.2026 passed on I.A.Nos.1 and 2 in
O.S.No.2549/2026 by the XXXV Additional City Civil & Sessions
Judge, Bengaluru.
2. The respondent is the plaintiff before the trial Court.
3. Parties to the proceedings shall be referred to as
plaintiff and defendant, for the sake of brevity.
4. Plaintiff filed a suit against the defendant for the
relief of permanent injunction with regard to the suit schedule
property bearing Site No.31, Khatha No.155/4A, situated at
Kothanur village, Uttarahalli Hobli, Bengaluru South Taluk
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measuring East to West: 40 feet, North to South: 30 feet in all
of 1200 sq. ft.
4.1. Along with the suit, an application came to be filed
under Order 39 Rule 1 and 2 of CPC by the plaintiff seeking for
an order of temporary injunction restraining the defendant from
interfering with the plaintiff's peaceful possession and
enjoyment over the suit schedule property.
4.2. The defendant made her appearance; filed
statement of objections; denied the claim so made by the
plaintiff and sought for dismissal of the application by
contending that she is the absolute owner of the suit schedule
property, having purchased the same by way of a registered
sale deed dated 07.04.2017 executed by her vendor and
thereafter, she has been in peaceful possession and enjoyment
of the suit schedule property and there is a shed in the suit
schedule property. It is also a plea taken by the defendant that
prior to the sale deed of the defendant, the vendors of the
defendant had a valid sale deed and there was a shed existing
in the suit schedule property and pursuant to the purchase
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made, sanctioned building plan has been obtained for
construction of the residential house; electricity connection and
water connection have been taken and the property tax has
been regularly paid with regard to the property in question. The
khatha has also been transferred in the name of the defendant
and she has been enjoying the suit schedule property as
absolute owner.
4.3. The trial Court, upon hearing the learned counsel
for both parties and on perusal of the materials placed by both
parties, came to the conclusion that the plaintiff has made out
a prima facie case for grant of an order of temporary injunction
and accordingly, allowed the application and thereby restrained
the defendant from interfering with the peaceful possession and
enjoyment of the plaintiff over the suit schedule property.
4.4. It is this order of grant of temporary injunction
which is challenged by the defendant in this appeal.
5. It is the vehement contention of learned counsel
appearing for the appellant-defendant that the impugned order
passed by the learned trial Judge is perverse, illegal and
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arbitrary, and the same is liable to be set aside. It is further
contended by the learned counsel for the appellant-defendant
that the trial Court has not taken into consideration the
materials placed on record both oral and documentary and has
also not considered the defence of the defendant with regard to
she, being the absolute owner, is in actual physical, lawful and
settled possession over the suit schedule property. Learned
counsel further contends that the trial Court has committed
perversity in holding that the plaintiff has established a prima
facie case merely on the basis of a registered sale deed dated
05.06.2003 and revenue records without properly determining
whether the plaintiff was in actual physical possession and
enjoyment of the suit schedule property as on date of filing of
the suit.
5.1. Learned counsel further contends that the trial
Court has failed to appreciate the continuous chain of title of
the appellant-defendant commencing from the registered sale
deed dated 07.05.1992 in favour of Smt.Kamakshi, followed by
the subsequent sale deed dated 25.08.1997 in favour of
Punniya and others and the subsequent sale deed dated
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21.08.2002 in favour of Smt.Kamalamma and the next sale
deed dated 16.07.2013 in favour of Sri.H.R.Nagesh culminating
into the registered sale deed dated 07.04.2017 in favour of the
appellant-defendant. These documents have been conveniently
ignored by the learned trial Court while passing the impugned
order.
5.3. Learned counsel further contends that the trial
Court has also not taken into consideration the possession and
enjoyment of the suit schedule property by the defendant, the
sanctioned building plan provided to the defendant, the
sanction of the BESCOM for grant of electricity connection, the
tax paid receipt for Khatha, the electricity bills having been paid
and the record standing in the name of the defendant and her
vendor Sri.H.R.Nagesh, which clearly shows that the property
in question belonged to the defendant and prior to that, her
vendors narrated hereinabove.
5.4. It is also contended by learned counsel that the
chain of documents clearly demonstrate the continuity of
possession of the defendant and her predecessors from the
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time of the initial purchase of the erstwhile vendor i.e.,
Smt.Kamakshi.
5.5. Learned counsel further contends that the trial
Court has committed an error in coming to a conclusion that
the rectification deeds dated 28.01.2013 and 06.01.2014 have
given different colour to the schedule mentioned in the property
without there being a proper clarity in the rectification which
ought to have been made in the first document of sale deed
rather than the subsequent documents whereby the property is
rectified without there being any correlation to the earlier sale
deeds. Learned counsel further contends that when the
defendant has come to the Court claiming that she is the owner
of the suit schedule property, obtained several statutory
documents from the municipal authorities and the tax paid
receipt, Khatha, encumbrance and other documents showing
the name of the defendant and she being in possession, putting
up construction in the suit schedule properties, are
conveniently ignored and once the defendant has taken such a
plea, the plaintiff could not have continued and maintained the
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suit for bare injunction when there is a cloud of title created by
the defendant over the title of the plaintiff.
5.6. Learned counsel further contends that the question
of rectification deeds and whether the property is correctly
described in the suit schedule and in the rectification deeds
matches the same or not are all matters to be decided during
the course of trial. The same cannot be decided while granting
an order of temporary injunction as the principles governing of
grant of temporary injunctions are different from that of the
principles governing the permanent injunction suit. The
question to be considered by the Court is who is in physical,
lawful possession of the property and with regard to the
documents are to be all decided in the course of trial while
considering an application under Order 39 Rule 1 and 2 of CPC.
Learned counsel contends that the trial Court ought to have
kept in mind the three essential requirements of prima facie
case, balance of convenience and the hardship that would be
caused rather than going into a mini trial. On these grounds, he
contends that when the defendant has produced sufficient
cogent material to show the previous chain of title of the
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vendors and there being a shed in the suit schedule property
which was earlier existing and photographs having been
produced to show that the shed was being demolished and a
construction has been put up by the defendant, the trial Court
ought to have taken all these aspects into consideration and
pass an equitable order in favour of the defendant rather than
the plaintiff. On these grounds, he contends that the impugned
order passed by the learned trial Judge deserves to be set
aside. Hence, he seeks to allow the appeal.
6. Per contra , learned counsel appearing for the
respondent-plaintiff vehemently contends that the plaintiff is
the absolute owner of the property bearing No.155/4A as
mentioned in the suit schedule property and she has purchased
the suit schedule property by way of registered sale deed which
is produced along with the plaint dated 05.06.2003 and that it
is a claim of the plaintiff that the defendant, who is an adjacent
owner of the suit schedule property, is trying to interfere with
the possession and enjoyment of the plaintiff over the suit
schedule property and making an unauthorized and unlawful
entry into the suit schedule property. Hence, she was
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constrained to file a suit against the defendant to ward off and
to prevent her from taking unlawful possession and protect the
suit schedule property from the plaintiff.
6.1. It is also contended by learned counsel that the
defendant has conveniently suppressed the rectification deeds
which are created subsequently to show that there is a change
made with regard to the schedule of the property changing the
number from survey No.155/4B to survey No.155/4A only in
the rectification deed and all the documents which are
produced by the defendant pertain to survey No.155/4B and
does not pertain to the suit schedule property. Therefore, he
contends that the subsequent rectification which is made will
not benefit and entitle any relief or provide any title to the
defendant or to the vendors of the defendant as the
rectification so made changing the survey number from survey
No.155/4B to survey No.155/4A is itself illegal and not
sustainable as rectification deed cannot be for subsequent sale
deed as it has to be from the original first sale deed, which is
not the case on hand. Therefore, he contends that the plaintiff
has been in peaceful possession and enjoyment of the suit
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schedule property, which the trial Court has rightfully observed
and has granted an order of interim injunction restraining the
defendant from interfering with the peaceful possession and
enjoyment of the plaintiff over the suit schedule property. On
these grounds, learned counsel for the respondent seeks
dismissal of the appeal.
7. I have heard the learned counsel for the appellant-
defendant and learned counsel for the respondent-plaintiff.
8. Apparently, it is not in dispute that the suit is filed
by the plaintiff for the relief of bare injunction. Plaintiff claims
title over the suit schedule property measuring to an extent of
40 feet x 30 feet in all measuring 1200 square feet by virtue of
a registered sale deed dated 05.06.2003. It is also the case of
the plaintiff that the defendant is an adjacent owner of the suit
schedule property, who is making an unlawful attempt to
interfere with the suit schedule property of the plaintiff.
Whereas on the contrary, it is the case of the defendant that
she claims that the suit schedule property is a property owned
by her by virtue of a registered sale deed dated 07.04.2017
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and that the defendant, pursuant to purchase of the suit
schedule property, has demolished the existing shed and is now
putting up construction in the suit schedule property. The
defendant's claim is that the vendors of the defendant have a
valid title and those documents have also been produced before
the Court. It is also the case that the rectification deed has
been entered into subsequently with regard to the property
number which has to be changed and so also the
measurement.
9. Be that as it may, the trial Court has examined all
these aspects and come to a conclusion that there is a
construction which is carried out by the defendant in the suit
schedule property and also has arrived at a conclusion that the
defendant has produced the similar set of documents as that of
the plaintiff that are sale deeds, tax paid receipts, electricity
bills and photographs, which demonstrate property being
renovated with regard to the existing house. However, the trial
Court did not find favour with the defendant and by agreeing
with the plaintiff, came to the conclusion that the plaintiff has
made out a prima facie case and also the balance of
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convenience would tilt in favour of the plaintiff rather than that
of the defendant and also irreparable injury and hardship would
be caused to the plaintiff rather than the defendant.
10. Learned counsel for the defendant has placed
several photographs as elicited in the impugned order by the
learned trial Judge with regard to the construction being put up
by the defendant in the suit schedule property. These
photographs are taken out on 23.01.2026 that is much prior to
the date of filing of the suit. The electricity connection and the
other sanction plan are also taken prior to the date of filing of
the suit in the month of January. These are materials which are
placed on record before the trial Court. The trial Court, though
mentioned about these documents produced by the defendant
and the construction activity in the suit schedule property, has
come to the conclusion that the plaintiff has made out a prima
facie case and the balance of convenience would tilt in her
favour rather than that of the defendant.
11. The issues before the Court are, whether the
plaintiff is in lawful possession of the suit schedule property or
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the defendant? and whether the injunction could be granted in
favour of the parties?
12. Though the plaintiff has raked up the issue with
regard to the rectification having been sought and made lately,
which is not correct as the original document of the title of the
first person was not rectified with regard to survey No.155/4A
as original site was survey No.155/4B so also the dimension of
the suit schedule property and also the boundaries.
13. While appreciating the contentions of the parties on
an application filed under Order 39 Rule 1 and 2 of CPC, what is
required to be seen by the trial Court is three essential
elements of prima facie case, balance of convenience and
irreparable injury and hardship that would be caused more to
which of the party.
14. Admittedly, the suit is filed for bare injunction by
the plaintiff against the defendant. The defendant upon
appearance has already taken a plea that she is the owner of
the suit schedule property in possession, enjoyment and
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putting up construction by demolishing the existing structure.
The photographs to that extent have already been produced,
including the sanctioned plan, the khatha, the tax paid receipt,
the building's license having been granted, the electricity
connections and other relevant documents. The trial Court has
looked into all these documents and has come to the conclusion
that the p rima facie case is made out by the plaintiff.
15. In my opinion, what is required to be seen by the
trial Court is despite making out a prima facie case to go in for
trial, whether the balance of convenience would tilt in favour of
the plaintiff or the defendant? Secondly, whether the
irreparable injury and hardship would be caused to the plaintiff
or to the defendant?
16. No doubt there is a dispute with regard to the
property, the measurement and the boundaries by the plaintiff
and that of the defendant. As according to the plaintiff, the
defendant's property was initially survey No.155/4B and not
survey No.155/4A which is claimed by the plaintiff.
Subsequently by way of rectification deed, the property number
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has been changed from survey No.155/4B to survey
No.155/4A, which dispute is to be decided by the trial Court
during the course of trial.
17. While considering the principles for grant of
temporary injunction, even if there is a prima facie case made
out by the plaintiff to go in for trial, the other two essential
elements have to be looked into by the trial Court while
considering application under Order 39 Rule 1 and 2 of CPC for
grant of temporary injunction, namely the balance of
convenience and the irreparable injury and hardship that would
be caused to which of the party.
18. In the present case on hand, the trial Court has
clearly noticed that the defendant is currently renovating and
putting up construction in the suit schedule property, which
would apparently mean that it is the defendant who is putting
up construction in the suit schedule property. Whether it is
survey No.155/4B or survey No.155/4A is a matter of trial
which would have to be decided during the course of trial.
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19. The Hon'ble Apex Court in the case of Kashi Math
Samsthan and another vs. Shrimad Sudhindra Thirtha
1
Swamy and another in paragraph No.16 held as under:
"16. It is well settled that in order to obtain an
order of injunction, the party who seeks for grant of
such injunction has to prove that he has made out a
prima facie case to go for trial, the balance of
convenience is also in his favour and he will suffer
irreparable loss and injury if injunction is not
granted. But it is equally well settled that when a
party fails to prove prima facie case to go for trial,
question of considering the balance of convenience
or irreparable loss and injury to the party concerned
would not be material at all, that is to say, if that
party fails to prove prima facie case to go for trial, it
is not open to the court to grant injunction in his
favour even if, he has made out a case of balance of
convenience being in his favour and would suffer
irreparable loss and injury if no injunction order is
granted. Therefore, keeping this principle in mind, let
us now see whether the appellant has been able to
prove prima facie case to get an order of injunction
during the pendency of the two appeals in the High
Court."
1
(2010) 1 SCC 689
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20. It is also held in the very same Judgment that
merely if a prima facie case is made out, it is not necessary
that an order of temporary injunction requires to be granted.
The Court will also have to consider whether the balance of
convenience would tilt in favour of the plaintiff and the
irreparable injury would be caused to the plaintiff in case of
non-grant of temporary injunction.
21. When the trial Court has come to a conclusion that
the defendant is putting up construction in the suit schedule
property, the trial Court ought not to have granted an order of
temporary injunction in favour of the plaintiff as it is the
defendant who would be put into irreparable injury and
hardship as she has already started putting up construction in
the suit schedule property by investing money and material.
Even it may be that the plaintiff may succeed in the suit
ultimately after the course of trial, upon such event happening,
there could be a condition imposed by the trial Court that the
defendant would not be having liberty to claim equity and
would also have to part way with the property in case of the
plaintiff succeeding in the suit. Once the Court comes to a
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conclusion that the defendant is putting up construction in the
suit schedule property, the question of prima facie case being
made out by the plaintiff would not arise and therefore, the
order impugned passed by the trial Court is not sustainable and
would have to be interfered.
22. Accordingly, I pass the following:
ORDER
i) This appeal stands allowed .
ii) The impugned order dated 29.07.2026 passed
on I.A.Nos.1 and 2 by the trial Judge in
O.S.No.2549/2026 is hereby set aside.
Consequently, I.A.No.2 filed by the defendant
under Order 39 Rule 4 of CPC stands allowed.
iii) The temporary injunction order granted in
favour of the plaintiff stands vacated.
iv) However, it is made clear that this Court has
not expressed any opinion on the merits of the
matter.
v) All contentions of the parties are kept open.
vi) Any observations made by this Court are
strictly only to decide the applications filed
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under Order 39 Rule 1 and 2 of CPC and Order
39 Rule 4 of CPC.
vii) It is open for both the parties to advert to the
pleadings with regard to the site numbers, the
rectification deeds, so also the measurements
and the boundaries.
Ordered accordingly.
Sd/-
(PRADEEP SINGH YERUR)
JUDGE
VM
List No.: 1 Sl No.: 40