A party must demonstrate prima facie possession to secure a temporary injunction, especially when prior litigation concerning the property exists.

JUDGMENT :

H.P. SANDESH, J.

This miscellaneous first appeal is filed challenging the order dated 30.11.2024 passed on I.A.Nos.1/2024 and 2/2024 in O.S.No.2536/2024 by the LVII Additional City Civil and Sessions Judge, Mayo Hall Unit, Bengaluru wherein the Trial Court rejected I.A.No.1/2024 filed under Order 39 Rules 1 and 2 of CPC and allowed I.A.No.2/2024 filed under Order 39 Rule 4 of CPC.

2. Heard the learned counsel appearing for the respective parties.

3. The factual matrix of the case of the plaintiff before the Trial Court is that the plaintiff is the absolute owner in peaceful possession and enjoyment of the suit schedule property having acquired the same under the Gift Deed dated 07.12.2023 and pursuant to the Gift Deed, katha was transferred in his name and gift deed was acted upon and all relevant documents are standing in the name of the plaintiff as on the date of filing of the suit. It is contended that defendant being the greedy person, for a wrongful gain, has started to interfere with his peaceful possession and enjoyment and along with his henchmen, came near the suit schedule property and attempted to dispossess the plaintiff, for which, the plaintiff has filed the suit for the relief of permanent injunction and also filed an application for temporary injunction as sought in I.A.No.1/2024.

4. Per contra, the learned counsel appearing for the defendant filed a memo praying to adopted the written statement as objection to I.A.No.1/2024 wherein he has seriously disputed the execution of the Gift Deed in favour of the plaintiff and also contended that the donor has already filed a suit in O.S.No.2043/2002 and O.S.No.25367/2024 is pending before the Court, in which, the very donor has filed the suit against the original vendor for possession and hence, the same shows that the plaintiff is not in possession of the suit schedule property since the very donor was not in possession. It is contended by the defendant that hy became the owner of he said property bearing No.532/4 and 532/5 through registered sale deed. It is also contended that even though the plaintiff is not in possession of the property, created the gift deed and filed a false suit and even title is also not perfected and approached the Court to dismiss the application and also filed I.A.No.2/2024 under Order 39 Rule 4 of CPC praying to vacate the interim order granted on 23.04.2024 and the said application is also objected by the plaintiff by filing the objections.

5. The Trial Court having considered the documents which have been placed by the respective parties, formulated the points for consideration regarding cardinal principles of granting temporary injunction. The Trial Court having considered the material available on record answered point Nos.1 to 3 as negative in respect of I.A.No.1/2024 is concerned and answered point No.4 as affirmative in respect of I.A.No.2/2024 is concerned. Being aggrieved by the said order, the present appeal is filed before this Court by the plaintiff/appellant.

6. The learned counsel for the appellant would vehemently contend that the suit schedule property is gifted by the father and the Trial Court also granted an exparte injunction earlier and the same has been vacated. The counsel also would vehemently contend that the very approach of the Trial Court is erroneous. The Trial Court has come to the wrong conclusion that the suit schedule property in the present suit is in question in another O.S.No.2045/2005 which can be proved only by way of evidence and also the Trial Court failed to consider the fact that the defendant is claiming right over the property in site No.532/4 and 532/5 and alleged sites are in existence and respondent has not produced the parent deed in support of his claim. Without considering this aspect of the matter, the Trial Court committed an error. The Trial Court committed an error in coming to the conclusion that matter requires full fledged trial regarding possession is concerned and the very ap