Full Judgment
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF MARCH, 2024 BEFORE THE HON'BLE MR JUSTICE R. NATARAJ MISCELLANEOUS FIRST APPEAL NO. 361 OF 2018 (CPC) BETWEEN:
1. NARENDRA KUMAR S/O RAJANNA AGED ABOUT 38 YEARS,
2. JAGADISH S/O RAJANNA AGED ABOUT 36 YEARS, …APPELLANTS (BY SRI. MANIVANNAN G., ADVOCATE) AND:
Digitally 1. VEERABHADRAIAH signed by BS S/O LATE VEERAPPA, RAVIKUMAR AGED ABOUT 87 YEARS, Location: RESIDING ATHIGH
COURT OF DODDAHAGADDE VILLAGE, KARNATAKA KASABA HOBLI, ANEKAL TALUK-552106. 2. ERAMMAD/O LATE VEERAPPA AGED ABOUT 69 YEARS, RESIDING AT KALLIPURA VILLAGE, KASABA HOBLI KOLAR TALUK AND DISTRICT-563101.
3. GOWRAMMA D/O LATE VEERAPPA AGED ABOUT 66 YEARS, R/AT KALLIPURA VILLAGE, -2- KASABA HOBLI KOLAR KOLAR TALUK AND DISTRICT-563101.
4. CHUDAMMA D/O LATE VEERAPPA, AGED ABOUT 64 YEARS, R/AT VANAKANAHALLI VILLAGE,
5. RAJANNA S/O LATE VEERAPPA, AGED ABOUT 62 YEARS, RESIDING AT NO. N S PALYA, 7TH MAIN 16TH CROSS, 2ND STAGE, B.T.M. LAYOUT, BANGALORE-566029.
6. SMT. BASAMMA W/O VEERABHADRAIAH AGED ABOUT 78 YEARS,
7. NAGARAJ S/O VEERABHADRAIAH AGED ABOUT 58 YEARS,
8. GURUDEVA S/O VEERABHADRAIAH AGED ABOUT 56 YEARS,
9. SHIVANNA S/O VEERABHADRAIAH AGED ABOUT 54 YEARS, -3-
10. CHANDRASHEKAR S/O VEERABHADRAIAH AGED ABOUT 52 YEARS,
11. UMESH S/O VEERABHADRAIAH AGED ABOUT 50 YEARS,
12. PRAKASH S/O VEEERABHADRAIAH AGED ABOUT 48 YEARS,
13. NIRANJAN S/O VEERABHADRAIAH AGED ABOUT 36 YEARS,
14. JYOTHI W/O UMESH AGED ABOUT 46 YEARS,
15. BHARATH S/O UMESH AGED ABOUT 28 YEARS,
16. VIDYA D/O UMESH AGED ABOUT 26 YEARS, -4-
17. GEETHA W/O CHANDRASHEKAR AGED ABOUT 51 YEARS,
18. KARTHIK S/O CHANDRASHEKAR AGED ABOUT 25 YEARS,
19. INDRANI W/O GURUDEV AGED ABOUT 52 YEARS,
20. ANIL KUMAR S/O GURUDEV AGED ABOUT 31 YEARS,
21. M/S ARATTUKULAM DEVELOPERS
HAVING ITS OFFICE AT NO.739 ADJACENT TO CHEVROLET SHOWROOM HOSUR MAIN ROAD, SINGASANDRA BANGALORE-560 068 REPRESENTED BY ITS AUTHORIZED SIGNATORY MR. K.V. JOSE GENERAL MANAGER …RESPONDENTS (BY SRI. S. VISWESWARAIAH, ADVOCATE FOR CAVEATOR RESPONDENT NO.7, 8, 9, 11 AND 13 AND ALSO FOR RESPONDENT NOS.1, 6 TO 20 (VIDE ORDER DATED 01.03.2024); SRI. V. CHANDRAPPA, ADVOCATE FOR RESPONDENT NO.5,
-5- NOTICE SERVED ON RESPONDENT NO.2; VIDE ORDER DATED 07.03.2024 SERVICE OF NOTICE TO RESPONDENT NOS.3 AND 4 IS DISPENSED WITH; VIDE ORDER DATED 14.03.2024 H.R.MANJUNATH, ADVOCATE FOR RESPONDENT NO.21) THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 29.08.2017, PASSED ON IA.NO.1 IN O.S. NO.401/2014, ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, ANEKAL, DISMISSING THE IA.NO.1, FILED UNDER ORDER 39 RULE 1 AND 2 OF CPC. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The plaintiffs in O.S.No.401/2014 on the file of the Senior Civil Judge, Anekal (henceforth referred to as 'Trial Court') have filed this appeal challenging the correctness of an order dated
29.08.2017 by which, an application filed by them under Order
XXXIX Rules 1 and 2 of CPC to restrain the defendants from alienating the suit schedule properties, was rejected.
2. The suit in O.S.No.401/2014 was filed for partition
and separate possession of the plaintiffs' share in 24 items of the suit schedule properties. The plaintiffs contended that they are the sons of defendant No.5 and defendant No.1 was his brother, while defendant Nos.2, 3 and 4 were his sisters, who -6- all constituted a joint family and that the family possessed suit schedule properties. They claimed that the propositus of the family namely, Chikkagaviappa had two sons namely, Veerappa
and Chikkaveerappa. The said Veerappa had five children namely, Veerabhadraiah (defendant No.1), Eramma (defendant No.2), Gowramma (defendant No.3), Chudamma (defendant No.4) and Rajanna (defendant No.5). They contended that Chikkaveerappa died a bachelor and therefore, the plaintiffs and defendant Nos.1 to 20 inherited and succeeded to the
estate of the joint family. The plaintiffs claimed that the defendant No.21 being a developer had gathered his men, material and machineries and attempted to put up construction
over Sy.No.54. The plaintiffs claimed that though they thwarted the illegal activities of the defendant No.21, its men threatened to come back with more force and accomplish its illegal acts. The plaintiffs claimed that on enquiry, they came to know that the defendant Nos.1 and 5 had purportedly partitioned the suit properties on 22.08.1984, which was later rectified on 15.04.1999. They also alleged that defendant Nos.1, 6 and their children purportedly executed a deed of partition on 17.03.2003 and defendant Nos.8, 10, 11 and their
-7- respective families purportedly registered joint development agreements in favour of defendant No.21 in respect of
Sy.No.54 and the revenue records were also changed. The plaintiffs claimed that when they convened a panchayath and demanded their share in the suit schedule properties, the defendants refused to partition the suit properties, which perforced them to seek for partition and separate possession of their shares in the suit schedule properties.
3. Along with the plaint, the plaintiffs filed an
application under Order XXXIX Rules 1 and 2 read with Section 151 of CPC for interim injunction restraining the defendants from alienating the suit schedule properties.
4. The suit was contested by the defendant No.5, who
denied the averments of the plaint in general. He contended that in the year 1978, the mother of the plaintiffs had deserted and had filed several cases against him. He claimed that in the year 1981, he filed a petition for divorce and the Court granted a decree of dissolution of marriage in the year 1996. Despite the decree of divorce, he alleged that the mother of the plaintiffs continued to file cases against him in collusion with
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the plaintiffs. He claimed that the plaintiffs were entitled to a share in the properties possessed by him under the partition entered into between him and defendant No.1. He contended that the plaintiffs were not in joint possession of the suit schedule properties and that the properties that fell to his share were his independent absolute properties.
5. The defendant Nos.8 and 9 also contested the suit
by filing their written statement. They denied that the plaintiffs and the defendants constituted a joint family as alleged. They also denied that some of the suit properties were inherited, while some were the ancestral joint family properties, as claimed by the plaintiffs. These defendants claimed that after the death of Veerappa, S/o Chikkagaviappa, the defendant Nos.1 and 5 were enjoying the suit properties and due to differences, they partitioned the suit properties on 22.08.1984, which was later rectified on 15.04.1999. In terms of the partition deed, the 'B' schedule properties namely item Nos.1 and 2 were allotted to the share of defendant No.5. They claimed that item Nos.16, 23 and 24 were the self acquisition
of the defendant No.5. They contended that the revenue documents stood correspondingly transferred to the names of -9-
defendant Nos.1 and 5 and they were enjoying it separately. They claimed that 'A' schedule properties in the partition deed dated 15.04.1999 were enjoyed by the defendant Nos.1, 6 to 13 jointly and due to the differences amongst them, they partitioned those properties on 17.03.2003. They claimed that item Nos.11 and 17 were allotted to the share of defendant No.7, item No.4 and portion of item No.5 were allotted to defendant No.8, while item No.19 and portion of item No.5, item Nos.9, 10, 12, 13, 14, and 22 were allotted to the share of defendant No.9. Similarly, portion of item No.5, item No.3 were allotted to the share of defendant No.10 and portion of item No.5 and item No.20 were allotted to the share of defendant No.11, while portion of item No.5 and item No.18 were allotted to the share of defendant No.12. They claimed that after the partition, they were enjoying the properties separately and revenue records were transferred to their names. They claimed that item No.5 was given for joint development by the defendant Nos.8 to 12 in favour of defendant No.21 in terms of a Joint Development Agreement dated 07.04.2012. They
claimed that the developer had completed 50% of the development work after getting it converted for residential use - 10 -
and after obtaining a plan from the planning authority. They claimed that item No.6 was purchased by the defendant No.11 and was his absolute property, while item No.7 was granted to defendant No.7 in the year 1995 and was therefore, his absolute property. They claimed that item No.8 was acquired by the defendant No.6 in terms of deed of absolute sale, which was allotted to the share of defendant No.7. They contended that item No.15 was an Inamthi land granted to the defendant No.1, which was given to the share of defendant No.12, who sold it in the year 2003 to third parties. They contended that item No.17 was the self acquisition of the defendant No.1, who gave it away to the defendant No.7. Further, they claimed that item No.21 was self acquisition of defendant No.6, who gave it away to defendant No.13 in the partition dated 17.03.2003. They claimed that defendant No.5 was aware of all these transactions and had therefore, agreed to receive item Nos.1 and 2 as his share. They claimed that all the properties were not acquired out of the funds of the joint family as alleged. They also reiterated the written statement filed by the defendant No.5 about the mother of the plaintiffs deserting the
- 11 - defendant No.5. With these and other contentions, they claimed that the plaintiffs were not entitled for any share.
6. The written statement filed by the defendant Nos.8
and 9 was adopted by the defendant Nos.1, 6, 7, 10 and 20. The defendant Nos.8 and 9 filed a memo to treat the written statement filed by them as objections to the application filed by the plaintiffs.
7. Based on the contentions in the plaint and in the
written statement, the Trial Court passed an order rejecting the application filed by the plaintiffs for interim injunction on the ground that the plaintiffs were the members of the family of defendant No.5 and that the properties of the family was partitioned in the year 1999 in terms of which, suit item Nos.1 and 2 were allotted to the share of the defendant No.5 and the remaining properties were allotted to the defendant No.1. It
held that the suit item Nos.16 and 23 were not included in the
deed of partition. It held that though the partition was unequal, the defendant No.5 had admitted it and therefore, the plaintiffs could not contest the same. It also held that though the plaintiffs claimed that some properties were ancestral in nature, - 12 -
some of them were purchased out of the joint family funds and the unauthorized occupation and some were regularized and some were granted by the land Tribunal, the plaintiffs were unable to give particulars. It therefore, held that if at all the plaintiffs have any right, it is restricted to item Nos.1 and 2 of the suit properties. It held that the defendant No.1 had entered into a Joint Development Agreement to develop suit item No.5,
which did not fall to the share of defendant No.5. It also held
that the plaintiffs were bound to challenge the partition deed dated 15.04.1999 within three years from the date they attained majority. On these grounds, it held that the plaintiffs had failed to make out a prima facie case for grant of injunction and hence, rejected the application.
8. Being aggrieved by the said order, the plaintiffs have filed this appeal.
9. The learned counsel for the plaintiffs submitted that
the application for injunction was filed for an innocuous relief to restrain the defendants from alienating the suit schedule properties. He contended that no hardship or injury would be caused to the defendants, if such an order was granted. He - 13 -
further contends that the Trial Court has proceeded to consider the application as if it was dealing with the merits of the case of the plaintiffs. He contends that the mere fact that the plaintiffs were also interested in the suit properties was sufficient enough to restrain the alienation of the suit properties. He further contends that a perusal of the written statement makes it more than evident that the defendant No.5 after deserting the plaintiffs, had entered into an unconscionable partition with the defendant No.1 in terms of which, he received a far lesser share than what he was entitled to. He contends that since the plaintiffs were not parties to that partition deed, the same was not binding upon them and they need not challenge the partition as by the year 1999, the plaintiff No.1 was a major by
age. He therefore, contends that the question whether the plaintiffs were bound by the partition entered into between the defendant No.1 and defendant No.5 and whether the partition was unequal or not, are all questions for trial and since the plaintiffs had made out a triable case, the status quo of the properties must have been maintained by restraining the defendants from alienating the suit properties. He further contended that the nature of strained relationship between the
- 14 - plaintiffs and defendant No.5 made it all the more necessary to restrain the defendants from alienating the suit properties.
10. Per contra, learned counsel for the defendant No.1
claimed that the properties of the family were partitioned on 22.08.1984 consequent to which, the defendant No.5 derived the suit item Nos.1 and 2 as his share while defendant No.1 derived the 'A' schedule properties as his share. He contended that this partition was rectified on 15.04.1999 rectifying certain
mistakes found in the partition deed dated 22.08.1984. He contends that the defendant No.1 was in possession of the properties that fell to his share and the plaintiffs have not taken any steps to challenge the partition from the date they attained the age of majority till the year 2014. Hence, they are not entitled to any share in the suit schedule properties, but are entitled to the share in the properties that fell to the share of defendant No.5. In support of the contention of the learned counsel for the defendant No.1, he relied upon the judgment of the Division Bench of this Court in the case of Sri. Rudrappa vs. Sri. H.R. Shivakumar and others [ILR 2012 KAR 5420] and contends that since the defendant No.5 had not
- 15 - challenged the partition deed dated 22.08.1984, the plaintiffs were not entitled to question the same.
11. The learned counsel for the defendant No.5 on the
other hand contended that the plaintiffs have not indicated in the plaint whether the suit item No.5 which was given away for joint development to the defendant No.21 was a property,
which belonged to the family or not and whether it was held
jointly by the plaintiffs and defendants. He contended that suit item No.5 is already developed by the defendant No.21 and the developer has already disposed off his share in the development.
12. The learned counsel for the defendant No.21 contends that after the suit item No.5 was developed, the share
which fell to the share of defendant No.21 is already encumbered and alienated and therefore, if the plaintiffs have any interest in the suit item No.5, it should be restricted to the interest of the defendant No.5.
13. I have considered the submissions made by the learned counsel for the plaintiffs as well as the learned counsel - 16 - for the defendant No.1 and learned counsel for defendant No.5 and also the learned counsel for defendant No.21.
14. The relationship of the plaintiffs with the defendant
No.5 is not in dispute. The fact that certain items of the suit schedule properties were properties belonging to the joint family is also not in dispute as the defendant Nos.1 and 5 conceded to the fact that there was a partition dated 22.08.1984 in respect of some of the items of the suit schedule properties. The fact that the plaintiffs and their mother were abandoned by defendant No.5 and that he took another person in marriage from whom he had children, is found in paragraph No.6 of the plaint. Therefore, there was no love lost between the plaintiffs and the defendant No.5 and hence, the question whether the defendant No.5 had taken into consideration the interest of the plaintiffs at the time he entered into the partition with the defendant No.1 on 22.08.1984 and whether the partition dated 22.08.1984 was equitable or not or whether it was entered into with an ill-motive to deprive the right of the plaintiffs in the suit schedule properties, are all questions of fact, which had to be established before the Trial Court. The defendants therefore, cannot be permitted to alienate any
- 17 - portion of the suit schedule properties, as that would result in multiplicity of proceedings and also gullible purchasers may fall victim and enter into shady transaction with the defendant Nos.1 to 20. In order to maintain status quo of the properties pending disposal of the suit, the Trial Court must have granted
an order of injunction restraining the defendants from alienating or encumbering or transferring the suit schedule properties until disposal of the suit. This would have met the ends of justice and also maintained the status quo of the properties. The Trial Court has proceeded to determine the application for interim injunction as if it was deciding the suit
on merits. The Trial Court must have refrained from commenting about the maintainability of the suit on the ground that the plaintiffs did not question the partition deed dated 15.04.1999 and also that the plaintiffs were entitled to share only in the suit item Nos.1 and 2. This had clear overtones of prejudice by the Court while considering the application for interim injunction. The Trial Court clearly lost sight of the fact that at the stage of considering an application for interim injunction, it is not necessary for the plaintiffs to establish a stellar case but it is necessary to establish a triable case. In
- 18 - that view of the matter, the impugned order passed by the Trial Court warrants interference by this Court.
15. Hence, this appeal is allowed. The impugned
order dated 29.08.2017 passed by the Senior Civil Judge,
Anekal in O.S.No.401/2014 rejecting the application filed by the plaintiffs under Order XXXIX Rules 1 and 2 of CPC for interim injunction is set aside. The application filed by the plaintiffs under Order XXXIX Rules 1 and 2 of CPC is allowed and the defendant Nos.1 to 20 are restrained from alienating or encumbering or transferring any portion of the suit schedule properties until disposal of the suit.
16. In so far as defendant No.21 is concerned, if it has
already alienated or encumbered or transferred its share in item No.5, the remaining portion that had fallen to the share of the defendant Nos.1 to 20 shall not be alienated until disposal of the suit.
17. The Trial Court shall dispose off the suit as directed by this Court in W.P.No.3875/2024 vide order dated 09.02.2024 and in accordance with the Karnataka (Case Flow Management in Subordinate Courts) Rules, 2005. - 19 -
18. In view of disposal of the appeal, pending I.As., if any, do not survive for consideration and the same stand disposed off. Sd/- JUDGE PMR List No.: 2 Sl No.: 1