1: t$ THE I1ZOK COURT 07 KAUATAZR AT S.MRXOU OATHD THIS THR 26 DAY 0? JULY 2002 THE )(OS’ SLE )$ JUS?ZcE )MJULA MELLUR HISCELLMEOUS TZ$ST APPEAL wO7O76/3OO1 1 ccPçJ BTWSE T DANANJAIAN, Sb 1 lata Thimmshatty Gowd, Major, R/at.No.96/6, 3 Cross, Maruthi Eztanion, Bangalora - 211 APPELLAT (By Sri N5urendra Kumar, Mv ,) ASD: I BKEEI4ANNA, S/os Rayanna, Agad about 52 yaar Prvathinagara, Banqa1or North Ta1uk 2. SHANTNARMU, Majors 3 C3AYAPJJ4A, Major No2 and 3 ara Riat Prvathinaqara 8angaiora N t 1uk RESPOSDEflS P rd, 2t III ir OS No5OO/9 on the file of the V AddLCity Civil Judge, Bangalore, allowing IA No.I filed under Order 39 Rules 1 and 2 r/w section 151 of CPC for TI and rejecting IA NOItI filed under Order 39 Rule 4 r/w Section 151 of CPC to vacate TI and etc, This Miscellaneous First Appeal coming on for admission this day, the Court delivered the following: JUD&MHffT Heard the learned Counsel for the appallant 2. This appeal is filed challenging the orders on IANosI and III filed under Order 39 Rules 1 and 2 and also ander Order 39 Rule 4 r/w 3ection 1fl of the c 4 ode of Civil Procedure It i not in dispute that the suit sc ad Ia par y 15 2 par f 3y No1 of Laqqera V age macsun q tote y aboir two a res 38 gunts of Yeshwantflapura Hobii Banaiore Nort No 48 i me nuriber given to :he sit ‘n in o hea o pit h a dan y thu HrouI y coran m a if oa a a;aa rt a attornay on 29-% 1988 with ona Sri Ramanna and ever since then, he ha been put in poession and enjoyment of the same as an agreement hoidr ft is also coritandad that thara is no time limit within which ha had to gat tha ragular gala daad axecutad in his favours Wa furthar says that in pursuance of the agreement of sale and general power of attorney, he even ha3 put up a construction and started living in the suit proparty along with hi family marnbar 4 On the other hand, it is the contention of the econd defendant appellant that he took power of attorney and also purchased the suit schedule property nder agreement of possession from ne Rai dra i nat appa S ddappa UI on O1- 986 and ava sinca han a s in possession and enjoyment of the property where he has put up a mali house as veil He further as 3 r ma appa sIoo3ppa ru r ha owa f at 4 rriey ro umarra. ni own. uf ne eria •e. 1 :4: case of the appellant/second defendant before the trial Court that after putting up construction, he let out the premises to the plaintiff/lint respondent herein and he continued to be in possession of the same till January 1998. It is his further case that the plaintiff gave undertaking before the Rajaqopalnagar Police to vacate the suit schedule property after two months from 9lie1997. He further contends that after vacating the premises in January 1998, without paying arrears of rent, the plaintiff in order to trouble the appellant herein has come before the Court with false case that he is still in possession and en cyment of the suit schedule property. 5. Both the parties have filed several documents to 3unstantiate the.i.r contentions. So far as tl’e pa ntiff i ‘oncerned, he tas nroeucad “c en cazd ass ied ny ane tactic some ,, ., 5 Sft(fl rid slat aal r or dati ed e in possassion of tha proparty till January 198 It is also noted from the reoords that the suit was filed in January 1998 itselZ Acoordinq to tha plaintiff, whan tha sacond dafandaxt with tha assistanca of dafandant Nos4 and startad intarfaring with his peaceful possession and enjoyment of the suit schedule property, he had to approach the Court se.kin for an order of injunction. It is also noted that an ex—parte injunction was granted in his favour and the same was made absolute after hearing both the parties on merits. No doubt, the address given in th cause title of the plaint and the ,uit schedule property are different. Admittedly the property qiasti ri a a a a a a d v h seams to eva om a a p r nay a arpo at a ow and hay are yet oa aqi. arisad Probab y, rile ave ta oery a a a\e a a addreaa a te a a a a 410 a a :5i defendant that the plaintiff was not at all in possession of the property. As a matter of fact, till January 1995, the plaintiff was in possession of the suit property. So far as the undertaking given before the Rajagopalnagar Police, the plaintiff has denied it in toto contending that under coercion such a note was taken. It is also noticed that earlier to this, the so-called undertaking before the Police, in July 1997, a complaint was lodged by the plaintiff along with a note of some Minister. The saio note also anon tnat tne plaintiff was put a possession of the property for the last sn years prior to July 1997 tn the ight of denial of andactakinq dated 9-11-1997, if tha plaintiff had really vacated the premises in January 1988, the second defendant ought to have taken e docL e in th egard f the a. te e o o show pun of th eqec tn e aking ia:eo 4 sqt 1t t ’ 0 L.a ate aro race va- a 4’ OSt5SaOt u? (a 3t.’ a • •1. dafGndant Undar thasa circumgtancas, tha trial Court has rightly come to the conclusion that there is a prima facie case in favour of the plaintiff and thara is also balanca of convanianca, Tha documants ravaal that tha plaintiff is in possassion of tha proparty nd if no order of injunction is granted, he would be put to irreparable loss of injury. 6. It is contandad that tha appallant is tha absolute ownar and the plaintiff is a tress— passer and therefore, there rould not be an njunction against the appellant herein Both the plaintiff and the second defendant are depending on ganeral power of attorney and also agreemant of sale by the plaintiff and agreement of Dossassion by the second defendant. There e one ca o say t a a app. ant is a a /*ne e pa as oa bndar ace cir a a ec I t fino good rro . eera :t Je .raar t tha arao r dqe Tha app.al s dt.mlaa.d cMavar bi COURT 01 KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNAtAKA HIGH COURT OF KARNATAKA HIGI o Ct Ct Ct ‘ o LS Cttr Ct 1 C o T 0 c4 / Cs Ct CS Li