IMPORTANT POINT
Order XXXIX Rule 1 and 2, and Order II Rule 2, CPC - interpretation of.

Judgment :-

M.Y. Eqbal, J.

Leave granted.

2. This appeal is directed against the order dated 29.08.2005 passed by a single Judge of the Karnataka High Court in M.F.A. No. 524 of 2003, whereby the Learned Single Judge set aside the order passed by the VII Addl. City Civil Judge, Bangalore and held that defendant-respondent is entitled to initiate action for ejectment of the plaintiff-appellants from the suit property.

3. The facts of the case lie in a narrow compass.

4. The plaintiffs who are the present appellants filed a suit for permanent injunction restraining the defendant-respondents from interfering with their peaceful possession and enjoyment of the suit property. The plaintiff-appellants case was that Plaintiff No.1 is the absolute owner of the suit property consisting of a building which was purchased from Defendant No.1 on a consideration of Rs.6,000/- However, sale deed could not be registered as the registration was suspended by the Government and the defendant-respondents could not get clearance from the Urban Land Ceiling Authority. The plaintiff-appellant’s further case was that although the sale deed was not registered, the entire sale consideration was paid to Defendant No.1 by the plaintiff who was put in possession of the suit property. It was pleaded by the plaintiffs that Plaintiff No.1 leased out the suit property in favour of Defendant No.2 who is residing in the same suit property for the last 17 years. Plaintiff-appellants further case was that they approached the Bangalore Mahanagara Palike for change of kattas and, on enquiry, they learnt that Defendant No.1 with an intention to grab the property concocted a gift deed in favour of Defendant No.2, who is his wife and on that basis moved an application for change of kattas. Immediately, the plaintiffs caused a legal notice dated 09.09.2002 asking him to execute a sale deed in favour of Plaintiff No.1. The plaintiffs also caused a legal notice on Municipal authorities not to change the kattas in favour of Defendant No.2 as Defendant No.1 has no right whatsoever to gift the suit property. The plaintiffs alleged that defendants along with their henchmen came to the suit property and threatened the plaintiff-appellants of dire consequences if they do not vacate the property within three days. On account of repeated threats from the side of defendants, the plaintiffs were compelled to file a suit for permanent injunction restraining the defendants from interfering with their peaceful possession and enjoyment of the suit property. A separate application under Order 39 Rule 1 and 2 CPC seeking an ad-interim relief restraining the defendants from interfering with their peaceful possession and enjoyment was filed.

5. The defendant-respondents filed a written statement and denied the averments made in the plaint. The defendants denied the purchase of the suit property by the plaintiff-appellants from Defendant-Respondent No.1. The defendants pleaded about their family settlement whereby the suit property was allotted to the defendants who put construction and let out the same to Plaintiff No.2. According to the defendants, Plaintiff No.1 is a stranger. In a nutshell the case of the defendants is that Defendant No.1 is the owner of the property and Plaintiff No.2 is a tenant under him and that she was paying rent per month.

6. The learned Additional City Civil Judge on consideration of the pleadings made by the parties and the documents filed by them allowed the application of the plaintiffs under Order 39 Rule 1 and 2 CPC and granted ad-interim temporary injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit property by Plaintiff No.2 till disposal of the suit. While granting temporary injunction the Civil Judge recorded the following reasons :-

“From the allegations and counter allegations, it can be crystallized that plaintiff no.2 is in possession of suit schedule property and as such, the documents have been pro