Pont of Law: The discretion of the Court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff: (i) existence of a prima-facie case as pleaded, necessitating protection of plaintiff’s rights by issue of a temporary injunction.

JUDGMENT :

C. PRAVEEN KUMAR, J.

The present Civil Miscellaneous Appeal is filed, under Order 43, Rule 1 read with Section 151 of Civil Procedure Code, 1908 [for short, “CPC”] assailing the Order, dated 06.09.2021 passed in I.A.No.130 of 2020 in O.S.No.13 of 2020, wherein, the application filed under Order 39, Rules 1 and 2 of CPC, seeking temporary injunction restraining the respondents/defendants from alienating the property, was dismissed.

2. The facts, in issue, are as under:

a) The appellants, who are the plaintiffs, filed a suit for declaration of title in respect of the suit schedule land and to declare the Registered Sale Deeds, dated 18.05.1990, 30.05.1995 and 20.09.2005 executed by one K. Shivanna as null and void and for delivery of possession.

b) The averments in the affidavit filed, in support of the petition, show that originally, one K. Thippanna died leaving his sons namely K. Ramachandrappa, K. Shivanna and K. Harischandrappa. The 1st and 2nd plaintiffs are the sons of K. Ramachandrappa and the 1st plaintiff is the father-in-law of the 3rd plaintiff and grand-father of plaintiffs 4 and 5. The 2nd son of Thippanna i.e., K. Shivanna died four years back leaving behind four sons namely Bheemasena (died), Mallesh Goud (died), Thippanna (3rd defendant) and Sreeramulu (died). The 3rd son of K. Thippanna i.e., K. Harishchandrappa died leaving behind his son one K. Sreenivasulu. Bheemasena, who died about two years back, left behind his wife 4th defendant, three sons who are the defendants 5 to 7. Mallesh Goud, who also died in the year 2017, left behind his daughter 8th defendant. K. Sreeramulu, who died 10 years ago, left behind his wife-9th defendant and a son who is the 10th defendant.

c) The land admeasuring Ac.2.77 cents in Survey No.447 situated in Mandigiri was acquired by one K. Thippanna under a Partition Deed, dated 04.02.1937 amongst himself and his brother Sanappa’s sons namely Narasappa and Hanumanthappa. In other words, in an oral partition, K. Ramachandrappa got Ac.2.77 cents in Survey No.447 and other properties. Mutation was done and Ryot passbook was also issued. It is stated that K.Ramachandrappa borrowed a sum of Rs.700/- from one Yale Halamma and Yale Gangamma and executed a registered simple mortgage deed in respect of the above petition schedule property. An endorsement, dated 15.04.1978 on the mortgage deed shows that Ramachandrappa cleared the mortgage debt and that Yale Parvathamma has executed cancellation of mortgage deed for having received the amount. Thereafter, it was again mortgaged as Ramachandrappa borrowed a sum of Rs.1500/- from Neelakantappa, S/o. K. Hanumanthappa. After repaying the amount, the document is taken back. This is only to show Ramachandrappa was having right over the property.

d) While things stood thus, on 18.11.1991, Ramachandrappa died leaving behind his two married sons K. Mallikarjuna, K.Ayyanna, one unmarried son K. Basavaraju and daughter-in-law K. Shankaramma who are the appellants/plaintiffs herein. It is said that due to expansion of Adoni town, cultivation could not be done in the said area and as such the plaintiffs 1 and 2 went to Bangalore in search of the livelihood. In the month of March, 2020, the appellants came to know that the husband of the 1st respondent and the father of the 3rd respondent were clearing the bushes and trees and created a nominal document from K. Shivanna and his sons though K. Shivanna and his sons have no right and title over the property.

e) It is said that these documents which are sought to be relied upon namely, the registered Sale Deeds, dated 18.05.1990 and 20.09.1995 are created for the purpose of this case. It is said that though these documents were executed prior to the demise of Ramachandrappa, but nothing was done to claim their right. The land was allowed to remain fallow for nearly 25 years and a claim now is sought to be made. Having regard to the steps taken by 1st and 2nd respondents in approaching one Gopal, who is th