Karnataka High Court
Sri D Ramaiah vs Sri Rangaswamy A G on 28 February, 2025
Author: K.Natarajan
Bench: K.Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE K. NATARAJAN
MISCELLANEOUS FIRST APPEAL NO.7421 OF 2024
BETWEEN:
1 . SRI. D. RAMAIAH
S/O LATE DASAPPA,
AGED ABOUT 68 YEARS,
2 . SMT. LAKSHMI
W/O D. RAMAIAH,
AGED ABOUT 65 YEARS,
3 . SMT. NAVYA
W/O ANOOP,
AGED ABOUT 40 YEARS,
4 . SRI. ANOOP
S/O B.A.KUMARSWAMY,
AGED ABOUT 40 YEARS,
ALL ARE R/AT NO.235,
6TH CROSS, RPC LAYOUT,
2ND STAGE, VIJAYANAGARA,
BENGALURU - 560 040.
...APPELLANTS
(BY SRI. SRINIVASA M R., ADVOCATE)
AND:
SRI. RANGASWAMY A G
S/O LATE GUDDADEGOWDA,
AGED ABOUT 54 YEARS,
R/AT NO.25, 10TH MAIN,
SHIVANAGAR, RAJAJINAGARA,
BANGALORE - 560 010.
...RESPONDENT
(BY SRI. VIJAY KUMAR K., ADVOCATE FOR
2
SRI. AMARNATH D., ADVOCATE FOR C/R)
THIS MFA IS FILED U/O 43 RULE 1(r) R/W SECTION 151 OF
CPC, AGAINST THE ORDER DATED:15.10.2024 PASSED ON
I.A.NO.1 IN OS.NO.4994/2024 ON THE FILE OF THE X ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU CCH-26,
ALLOWING THE IA.NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 OF
CPC.
THIS MISCELLANEOUS FIRST APPEAL HAVING BEEN HEARD
AND RESERVED FOR ORDERS ON 25.01.2025 THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE K.NATARAJAN
RESERVED FOR ORDERS ON: 25.01.2025
PRONOUNCED ON : 28.02.2025
CAV JUDGMENT
This appeal is filed by the appellants/defendant under order 43 Rule 1(r) of CPC for setting aside the order passed on I.A.No.1 dated 15.10.2024 by the X Additional City Civil and Sessions Judge, Bengaluru in O.S.No.4994/2024, filed by the plaintiff under Order XXXIX Rules 1 and 2 of CPC, for having granted the injunction against the appellants.
2. Heard the argument of learned counsel for the appellants and learned counsel for the respondent.
3
3. The appellants were the defendants and the respondent was the plaintiff before the trial court. The ranks of the parties are retained for the sake of convenience.
4. The case of the plaintiff before the trial court is that the plaintiff filed the suit for perpetual injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the properties, which is a commercial properties bearing new Municipal No.67, PID No.27-62-67, measuring East to West 34.6 feet and North to South 32.3 feet, totally measuring 1117.58 Sq.ft, together with passage way, measuring 3.3 x 66.6 ft. towards East to West on the Northern side of the property, measuring 219.78 Sq.ft, in all measuring 1337.36 ft, consisting of Ground floor, measuring 600 sq.ft, first, second, third and fourth floor measuring 2400 sq.ft, totally measuring 3000 sq.ft, of RCC building situated at Gubbi Thotadappa Raod, Cottonpete Main road, BBMP ward No.27, New Ward No.94, Bengaluru - 560053 (hereinafter referred to as "suit schedule property").
5. It is contended by the plaintiff that the plaintiff is absolute owner of the enjoyment of the schedule property acquired under the registered sale deed dated 18.10.2023 executed by one Shalini Mallikarjuna and he is in peacefull possession and enjoyment of 4 schedule property. The khatha also has been transferred in the name of the plaintiff, he is paying necessary taxes and he is having the business in the name of "Hotel Kengeri Gateway Inn". He has also obtained trade license and is paying taxes etc,. It is further contended that the property was originally acquired by one Somashankarappa under the decree in O.S.No.249/1979 and he was allotted properties in the Schedule 'D' as item No.4, the final decree is also registered on 03.09.1980. The property was transferred in the name of Somashankarappa who died leaving behind his wife Mukthamba, children Shalini, Aparna as legal heirs. The wife and children of Somashankarappa entered into registered partition on 12.11.2020, and they also entered into supplemental partition deed and as per the supplemental partition deed, the share of the Shalini Mallikarjuna, the vendor of the plaintiff, subsequent to the supplemental partition, khatha was transferred in name of the Shalini Mallikarjuna.
6. It is also the case of the plaintiff, that during the lifetime of Somashankarappa leased out the property bearing No.67, old No.82, measuring East to West 34.6 feet and North to South 32.3 feet in favour of one M/s.Sree R.K.Associates represented by its partners D.Ramaiah and B.Krishnappa under the registered sale 5 deed dated 06.02.2006 for 27 years with monthly rent of Rs.5000/- and 15% enhanced rent, once for every 5 years. On 12.12.2018, the partners of M/S.R.K.Associates executed rent agreement with plaintiff in respect of suit schedule property for a period of 5 years. Subsequently, the defendant No.1 entered into partnership deed on 16.09.2021 as a new partner and one of the partner B.Krishnappa was retired and B.Krishnappa sold 50% of his undivided share, right over the properties in the name of the firm in favour of the plaintiff by retirement deed in favour of defendant No.1 dated 13.02.2021. The defendant No.1 executed partnership deed in favour of the plaintiff. The plaintiff being the partner of the firm has surrendered the lease in favour of Shalini Mallikarjuna on 04.11.2023. Further, Shalini Mallikarjuna executed confirmation deed on 04.11.2023, conforming the sale deed dated 18.10.2023, in favour of the plaintiff. But the defendant do not have any manner of right, title, interest over the property who is trying to interfere. Hence, he has filed this suit, along with the suit an Interlocutory Application came to be filed under Order XXXIX Rules 1 and 2 of CPC, which came to be allowed, injunction has been granted against the defendants. Hence, the defendants are before this court.
6
7. The learned counsel for the appellant has contended that the order of the trial court is perverse and capricious, hence liable to be set aside. The Somashankarappa being the owner of the property, though he had leased out to the M/S.R.K.Entereprises in the beginning, later he himself became the partner in the firm and he has invested the suit schedule property in the firm, as per the partnership deed dated 16.07.2009. Thereby, the suit schedule property became the property of the firm. Thereby, B.Krishnappa and Somashankarappa became the partners of the firm. The firm purchased the adjacent properties on 06.04.2006 and leased out properties of 1337.36 sqft. The property adjacent land purchased was of 1362 sqft, totally 2699.36 sqft. The firm is the owner of the property, without the knowledge of the firm, the partners surrendered the leasehold properties in favour of children of Somashankarappa and inturn he himself purchased, the properties belonging to the firm. Therefore, the question of purchasing the properties by the plaintiff does not arises. The properties cannot be bifurcated, the firm is running the hotel business, Lodging etc.,. Therefore, the injunction cannot be granted. Hence, prayed for setting aside the same.
7
8. Per contra, learned counsel for the respondent supported the order of the trial court contending that there are two different properties, one is leased property, another is adjacent properties. Therefore, the injunction is granted, no prejudice or no irreparable loss is caused to the defendant's case. Hence, prayed for dismissing the appeal.
9. Having heard the arguments, and perused the records, the point that arises for my consideration are;
1. Whether, the plaintiff made out the prima facie case in his favour?
2. Whether the balance of convenience lies in his favour?
3. Whether, if the injunction is not granted will they be put into hardship or irreparable loss?
4. Whether, the order of the trial court calls for interference?
10. Perused the order and the records, on perusal of the same, the case of the plaintiff is that Somashankarappa was the owner of the properties, which is not in dispute, measuring East to West 34.6 feet and North to South 32.3 feet, totally measuring 8 1117.58 Sq.ft, Subsequently it was leased out to the RK.Enterprise, partnership firm, by entering into lease deed. The lease deed dated 06.02.2006 was entered into between the Somashankarappa and M/s.Sree R.K.Associates which reveals the lease hold between the Somashankarappa and M/s.Sree R.K.Associates the firm, at that time, the property was vacant site, measuring 34.6 inches x 32.3 inches. The property plan also annexed for the purpose of putting construction and as per the lease, the firm required to put up the construction. After lapse of 27 years, if it is not renewed, the lease of the building will be returned to one Somashankarappa, the owner of the property.
11. In the meanwhile, subsequent to the lease agreement, between the firm and Somashankarappa, the very Somashankarappa was inducted as one of the partner of the firm RK.Enterprise on 16.07.2009, where the firm was consisting of one Ramaiah and Krishnappa were the partners. Ramaiah was holding share capital of ₹1 lakh and Krishnappa was holding ₹1 lakh, but the Somashankarappa was inducted as partner and he has invested the land as Capital investment to the firm. The land which is leased out to the firm as his investment. Thereby, the schedule property in Sy.No.67 became the property of the firm. It is also seen from 9 the record that the Krishnappa said to be retired from the firm and Ramaiah said to be continued as a partner, as per the deed of retirement, dated 13.02.2021. In the meanwhile, there was a rental agreement entered into between Ramaiah, Krishnappa and the firm with Rangaswamy (plaintiff No.1) for letting out the rooms, of the lodge in favour of one Rangaswamy. He became the tenant under the firm and the rent was fixed for cellar, 1st, 2nd, 3rd, 4th and 5th were for different amounts. Totally 27 rooms consisting of property in Sy.No.63, 64, 65, 66 and 67. Thereby, Rangaswamy became the tenant under the firm. The said Somashankarappa said to have died and there was no documents to show whether any settlement was made to the legal heirs of Somashankarappa. On the other hand, after the retirement of Krishanappa, Rangaswamy/plaintiff No.1 was inducted as partner on 13.2.2021. He was new partner to the firm. Later, the said Rangaswamy being one of the partner surrendered the lease in favour of Shalini Mallikarjuna who is the daughter of Somashankarappa and later the said Shalini Mallikarjuna executed sale deed in favour of Rangaswamy on 18.10.2023 for the schedule property bearing No.67 and once again on 04.11.2023, the said Shalini Mallikarjuna daughter of Somashankarappa entered into confirmation deed in favour of Rangaswamy, which clearly reveals, once the property in 10 property bearing No.67 becomes the property of the firm and Rangaswamy a newly inducted partner have no individual right to surrender the property or lease in favour of the daughter of the original lessor, Somashankarappa, he was the partner and the property belongs to the firm. Behind back of the plaintiff Ramaiah, the plaintiff Rangaswamy surrendered the lease property and he himself entered into sale deed with daughter of the Somashankarappa and thereafter he is claiming the right over the schedule property and based on these documents, he has filed suit against the defendant/appellant Ramaiah who is the part of the firm and obtained order of injunction against other partner. Therefore, the defendant challenged the granting of injunction in favour of the plaintiff/Rangaswamy.
12. On perusal of the records it is not in dispute, the schedule property was vacant site which belongs to Somashankarappa and he has leased to RK Enterprises for 27 years and a permission accorded for putting up construction for running lodge by the RK Enterprises on 06.02.2006. It is also not in dispute, subsequently the Somashankarappa himself was inducted as partner in the partnership firm of RK Enterprises run by Ramaiah and Krishnappa. The Somashankarappa was inducted as new 11 partner on 16.7.2009 and the suit schedule property in site No.67 was given to the firm as the investment from the side of Somashankarappa. As such, Ramaiah, Krishnappa and Somashankarappa became 3 partners of the firm. The capital of Rs.1 lakh each belongs to Ramaiah and Krishnappa where it is referred in clause 5 in the column of capital in partnership deed that the land of the Somashankarappa was his investment in the firm. Thereby, the schedule property belongs to the property of the firm. It is also seen from the record, the building was put up by the firm and it is also let out to the Rangaswamy for running the lodge. The lodge consisting of 27 rooms. The schedule shown in the properties was consisting of khatha No.63, 64. 65 and 67 with boundary of both the properties. It appears Somashankarappa died and it was decided to give Rs.5000/- to the legal heirs. The contention of the plaintiff is that the Rangaswamy one of the partner of the firm said to be purchased the site No.67 from the daughter of Somashankarappa. That too, prior to surrendering the property of the firm to the daughter of Somashankarappa and he has purchased the same. The retirement of partnership deed reveals the Ramaiah and Krishnappa were continued the partnership firm, after death of Somashankarappa and it was decided to give Rs.5000/- to family members of Somashankarappa. These documents reveals, the 12 property still stands in the name of firm RK Enterprises. Such being the case, the plaintiff Rangaswamy said to be surrendered the lease to daughter of Somashankarappa where the signature of the defendant Ramaiah is not found. Such being the case, the question of surrendering the lease, does not arises, which is still existing till 2033 and there is no question of surrendering the lease hold building to Shalini Mallikarjuna by the plaintiff in an individual capacity on 04.11.2023. Prior to that, he himself purchased the same from the daughter of Somashankarappa on 18.10.2023, this reveals prior to surrendering the property, he has purchased the properties on 18.10.2023, thereafter he surrenders the properties to the daughter of Somashankarappa, there is a contradiction between these two documents which clearly shows that there is no prima facie case made out by the plaintiff in his favour, that he is lawful owner of the schedule property since the sale deed is prior to the surrendering of the leased property to the daughter of the Somashankarappa. First of all, the properties belongs to the firm's property which was brought by Somashankarappa and till settlement, the said property remains as firm's properties. Therefore, he being partner of the said firm, cannot purchase the said properties from the legal heir of Somashankarappa and it appears after purchase by sale deed 18.10.2023, he has realised 13 the mistake that the property belongs to firm. Thereafter, he has surrendered the property to the daughter of Somashankarappa on 4.11.2023. Therefore, it cannot be said plaintiff is in lawful possession and enjoyment of the properties in his individual capacity, the sale deed itself is invalid.
13. As regards to the balance of convenience, the defendant No.1 being partner of the firm, the plaintiff also partner of the firm, the properties belong to the firm until dissolution of the firm, in accordance with law and sharing the profit and loss apart from the properties of the firm, the question of purchasing the schedule property by the plaintiff,without expiry of the lease period cannot be acceptable. Therefore, there is no balance of convenience in favour of the plaintiff.
14. On the other hand, the firm was already put up construction of property, the rooms were existing, 4 floors building 27 rooms and it was let out to the plaintiff, such being the case, if the injunction is granted on behalf of the plaintiff, there will be irreparable loss caused to the firm and defendant, but no loss would cause to the plaintiff. Such being the case, the question of granting injunction in favour of the respondent/plaintiff does not arises. The counsel for the appellant rightly contended that the order of the trial 14 court is capricious and perverse, not properly appreciated the documents on record, since the plaintiffs are already having the site No.63, 64, 65 and 66 which is adjacent to the site No.67, the present disputed properties and thereafter they put up constructional and letting out the lodge. Such being the case, without going for full fledged trial, the plaintiff is not entitled for injunction in his favour. Therefore, the order of the trial court granting injunction in his favour requires to be set aside.
Accordingly, the appeal is allowed.
The order of the trial court in I.A.No.1 filed under Order XXXIX Rules 1 and 2 of CPC granting injunction, is hereby set aside.
Sd/-
(K.NATARAJAN) JUDGE AKV CT:SK