1. The first defendant in O.S.6794/2017 on the file of the II Addl. City Civil and Sessions Judge, Bengaluru, has preferred this appeal challenging the order dated 20.11.2017 passed on I.A.No.I filed under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure (‘CPC’ for short) in the said suit.

2. The events that led to preferring this appeal are briefly stated as below by referring to the parties with respect to their positions in the court below.

The plaintiff is a House Building Co-operative Society. The suit that the plaintiff has filed is for permanent injunction restraining the defendants from interfering with its peaceful possession and enjoyment of property which is a portion of land in erstwhile Sy. No. 23 of Pattanagere Village, Kengeri Hobli, Bengaluru South Taluk, measuring East to West 232’, North to South 38’ feet on the western side and 50’ on the eastern side, totally measuring 13,426 sq. ft. which is now situated in BHEL Layout within the jurisdiction of BBMP (referred to as ‘suit property’). According to the plaintiff, one Patel Nanjundappa, who was the owner of 2 acres 18 guntas of land in Sy. No. 23 of Pattanagere Village executed an agreement of sale in favour of the plaintiff in the year 1984 and received the entire sale consideration under the agreement itself. The plaintiff entered into this transaction with Nanjundappa for the formation of a residential layout for the benefit of its members. The Government also initiated proceedings for acquiring the land in Sy. No. 23 and other neighbouring lands for the benefit of society. The plaintiff formed a layout with the approval of Bengaluru Development Authority and allotted sites to its members. The suit property is a plot set apart by the plaintiff for the civic amenity purpose. The said land was vacant. But, some of the landlords whose lands have been acquired for the benefit of House Building Co-operative Society like the plaintiff challenged the acquisition proceedings before the High Court of Karnataka by filing writ petition which was allowed. This judgment of this court was challenged in the Supreme Court which also confirmed the judgment of this court (HMT. Vs. M. Venkataswamappa – 1995 (3) SCC 128). But the plaintiff had already allotted the sites to its members and executed the sale deeds in their favour in the year 1992. These allottees were not parties in the writ petition. Then the erstwhile owners tried to interfere with the possession of the plaintiff in the land where the layout had been formed and for this reason a meeting was convened. The erstwhile land owners participated in the said meeting, received further consideration and executed a declaration by way of deed ratifying all the acts done by the society including formation of the layout and distribution of sites to its members. The plaintiff also filed a suit O.S.No.4601/2000 against the erstwhile landlords and, in the said suit the land lords came forward and entered into a compromise accepting that the plaintiff society had formed layout and that the allottees had obtained Khata of the sites allotted to them from Rajrajeshwari Nagar City Municipal Council. In fact the children of Late Patel Nanjundappa were also allotted sites by the society.

3. The grandchildren of Patel Nanjundappa who did not have any kind of right, title or interest filed a suit OS.No.7191/2002 against the plaintiff Society. They sought for an order of temporary injunction. Since the court declined to pass of an order temporary injunction in their favour, they withdrew that suit by filing a memo. But, the grandchildren of erstwhile landlords obtained Khata from City Municipality Council, Rajarajeshwari Nagar by suppressing the facts, and on the strength of the Khata they sold the sites of Defendants 2 and 3. The plaintiff stated that since the erstwhile landlords had lost their interest in the entire land, and that they were also not in possession, the sale deeds that were executed in favour of defenda