IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28^TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH MISCELLANEOUS FIRST APPEAL NO.7897 OF 2024 (CPC)

BETWEEN:

1. SRI. DAYALAN, S/O VEERASWAMY REDDIAR, AGED ABOUT 71 YEARS, R/O NO.10/3, 8^TH CROSS, DAYANANDANAGAR, SRIRAMPURAM, BENGALURU -560 021.

…APPELLANT (BY SRI. K.N.NITISH, ADVOCATE)

AND:

1. SRI. BASAVARAJ M., S/O LATE MADAIAH, AGED ABOUT 42 YEARS.

Digitally signed by DEVIKA M Location: HIGH 2. SMT. MAHADEVAMMA, COURT OF W/O LATE MADAIAH, KARNATAKA AGED ABOUT 42 YEARS.

BOTH RESIDING AT NO.71/1, 7^TH MAIN ROAD, PRAKASHNAGAR, BENGALURU -560 021.

…RESPONDENTS (BY SRI. VIVEKANANDA T.P., ADVOCATE FOR RESPONDENTS;

SRI. B.G.RAJASHEKHAR &

SRI. SHIVANANDA T.S., ADVOCATES FOR C/R1 AND R2)

THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 24.10.2024 PASSED ON I.A.NO.1 IN O.S.NO.6667/2021 ON THE FILE OF THE LVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH 57), DISMISSING THE I.A.NO.1 FILED UNDER ORDER XXXIX RULE 1 AND 2 READ WITH SECTION 151 OF CPC.

THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

JUDGMENT

Heard the learned counsel for the appellant and the learned counsel for the respondents.

2. This appeal is filed against the rejection of I.A.No.1 filed by the plaintiff under Order XXXIX Rule 1 and 2 read with Section 151 of CPC in O.S.No.6667/2021 vide order dated

24.10.2024.

3. The factual matrix of the case of the plaintiff before the Trial Court while seeking the relief of permanent injunction is that the plaintiff is the absolute owner in constructive possession of the suit schedule property. The defendants in collusion with third party are making hectic efforts to grab the suit schedule property and create third party rights with a malafide intention to make an unlawful gain and to cause loss and injury to the plaintiff. It is contended that balance of convenience is in his favour and he has got prima facie case. If the defendants succeed in their illegal and arbitrary acts, he will suffer irreparable loss and injury. It is also contended that he has got a good case on merits. In the plaint it is stated that the suit property originally belonged to one Sri Natesh Mudaliar, who conveyed the said property to Smt. Anwar Bi and her son Sri Sayyed Khalil on 09.08.1947 vide a registered sale deed. Subsequently, the said Smt.Anwar Bi and Sri Sayyed Khalil sold the suit property to one Sri Shanmugam on 24.10.1977 for a valuable sale consideration vide a registered sale deed. It is contended that the said Shanmugam who was working in KEB, took loan from KEB and deposited the title deeds with the latter on 18.07.1978 and subsequently after the demise of Sri Shanmugan, his wife Smt.Mangalamma cleared the aforesaid loan. It is contended that Sri Sayyed Khalil executed a rectification deed in favour of Smt.Mangalamma, clarifying the survey number of the suit property as 66 instead of 64. It is contended that after the demise of Smt.Mangalamma, her only son Sri Rajarathnam executed an absolute deed of sale on 22.09.1999 in favour of the plaintiff. It is contended that ever since the plaintiff has been enjoying the peaceful possession of the suit property which is morefully described in the schedule. It is contended that the khatha and all the revenue records are standing in the name of the plaintiff.

4. It is contended that on 23.01.2008, one late N.Madaiah filed a suit for declaration, possession and mesne profits against Smt. Padma and others in O.S.No.6620/2008. It was his case that he was the absolute owner of the property bearing old No.159, New No.38/1, situated at III Cross, Robertson Block, Ramachandrapuram, Bengaluru, which he had purportedly purchased from Maimunnisa under a registered sale deed dated 13.04.1973. Furthermore, the said Madaiah purportedly applied for transfer of khata in his name before the BMP authorities which was objected by Mangalamma, who was