Karnataka High Court
Mr. Rudolph Mascarenhas vs Smt. Lakshmamma on 7 March, 2025
Author: K.Natarajan
Bench: K.Natarajan
-1-
NC: 2025:KHC:9864
MFA No. 6372 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
MISCELLANEOUS FIRST APPEAL NO.6372 OF 2024 (CPC)
BETWEEN:
MR. RUDOLPH MASCARENHAS,
S/O LATE LOUIS MASCARENHAS,
AGED ABOUT 75 YEARS, RESIDENT OF NO.7/1,
1ST MAIN ROAD, DEFENCE COLONY,
INDIRANAGAR, BENGALURU-560 038.
...APPELLANT
(BY SRI. S. SREEVATSA SR. COUNSEL FOR
SRI. VIVEKANAND ANTHONY BRITTO, ADVOCATE)
AND
1. SMT. LAKSHMAMMA,
Digitally signed W/O LATE RAMAPPA,
by NIJAMUDDIN AGED ABOUT 54 YEARS,
JAMKHANDI
RESIDENT OF BETTENAHALLI VILLAGE,
Location: HIGH
COURT OF KUNDANA HOBLI,
KARNATAKA DEVANAHALLI TALUK - 562157
2. SRI. SRINIVASA,
S/O LATE RAMAPPA,
AGED ABOUT 40 YEARS,
RESIDENT OF
BETTENAHALLI VILLAGE,
KUNDANA HOBLI,
DEVANAHALLI TALUK-562157
3. SRI.MUNIRATHNA,
-2-
NC: 2025:KHC:9864
MFA No. 6372 of 2024
S/O LATE RAMAPPA,
AGED ABOUT 36 YEARS,
RESIDENT OF
KUNDANA HOBLI,
BETTENAHALLI VILLAGE,
DEVANAHALLI TALUK-562157
4. SRI. B. C. RAJANNA,
S/O LATE CHINNASWAMI
@CHINNASWAMAPPA,
AGED ABOUT 51 YEARS,
RESIDENT OF
BETTENAHALLI VILLAGE,
KUNDANA HOBLI,
DEVANAHALLI TALUK-562157
(SMT. MUNIYAMMA DIED, LR'S
ARE ALREADY ON RECORD)
5. SMT. AKKAYAMMA,
W/O KRISHNAMURTHY A.,
AGED ABOUT 72 YEARS,
RESIDENT OF HEBBAGODI VILLAGE,
CHANDRAPURA HOBLI,
ANEKAL TALUK,
BENGALURU DISTRICT-560099
6. SRI GULLAPPA
S/O LATE CHINNASWAMI,
@ CHINNASWAMAPPA,
AGED ABOUT 65 YEARS,
RESIDENT OF
BETTENAHALLI VILLAGE,
KUNDANA HOBLI,
DEVANAHALLI TALUK-562157
7. SMT RATHNAMMA @ MUNIRATHNAMMA
W/O NARAYANASWAMY,
AGED ABOUT 59 YEARS,
RESIDENT OF KONAPPANA AGRAHARA,
ANEKAL TALUK,
-3-
NC: 2025:KHC:9864
MFA No. 6372 of 2024
BENGALURU DISTRICT-560100
8. SRI B. C. MUNIYAPPA
S/O LATE CHINNASWAMI
@ CHINNASWAMAPPA,
AGED ABOUT 55 YEARS,
RESIDENT OF
BETTENAHALLI VILLAGE,
KUNDANA HOBLI,
DEVANAHALLI TALUK-562157
9. SMT B. C. RAJAMMA
D/O LATE CHINNASWAMI
@ CHINNASWAMAPPA,
AGED ABOUT 49 YEARS,
RESIDENT OF
BETTENAHALLI VILLAGE,
KUNDANA HOBLI,
DEVANAHALLI TALUK-562157
10 . SRI. C. RAJANNA @CHIKKARAJU,
S/O LATE CHINNASWAMI
@CHINNASWAMAPPA,
AGED ABOUT 45 YEARS,
RESIDENT OF
BETTENAHALLI VILLAGE,
KUNDANA HOBLI,
DEVANAHALLI TALUK-562157
....RESPONDENTS
(BY SRI. SRINIVASA T. P. ADVOCATE FOR R1 TO R3;
SRI. S. VENUGOPAL, ADVOCATE FOR R4 TO R7 AND R10;
R8 AND R9 ARE SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
ORDER 43 RULE 1(R) OF CPC, PRAYING TO CALL FOR THE
RECORDS, B) SET ASIDE THE ORDER PASSED BY THE
LEARNED III ADDL. SENIOR CIVIL JUDGE AND JMFC.
DEVENAHALLI IN O.S.NO.526/2017 DATED 04.04.2024 AND BE
PLEASED TO ALLOW THE APPLICATION V FILED BY THE
APPELLANT UNDER ORDER XXXIX RULE 1 OF CIVIL
-4-
NC: 2025:KHC:9864
MFA No. 6372 of 2024
PROCEDURE CODE FOR GRANTED OF TEMPORARY INJUNCTION
BY RESTRAINING THE RESPONDENTS FROM ALLEGING THE
PLAINT SCHEDULRE PROPERTY.
THIS MISCELLANEOUS FIRST APPEAL HAVING BEEN
HEARD AND RESERVED FOR JUDGMENT ON 28.02.2025 THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
RESERVED FOR ORDERS ON: 28.02.2025
PRONOUNCED ON : 07.03.2025
CAV JUDGMENT
This appeal is filed by the appellant/plaintiff under Order XLIII Rule 1(r) of CPC challenging the order of the Trial Court passed on I.A. No.5 filed under Order XXXIX Rule 1 and 2 read with Section 151 of CPC, for having dismissed the application.
2. Heard arguments of the learned counsel for the appellant and the learned counsel for the respondents.
3. The appellant was the plaintiff and the respondents were the defendants before the Trial Court. The ranks of the parties are retained for convenience. -5-
NC: 2025:KHC:9864 MFA No. 6372 of 2024
4. The case of the plaintiff is that the plaintiff filed a suit for declaration to declare the decree passed in OS No.345/2011, in terms of the compromise as null and void and not binding on the plaintiff and for directing defendant Nos.1 to 3 to execute the sale deed in pursuance of the agreement dated 25.01.2006, by receiving the balance consideration of Rs.16,75,000/- and also restraining the defendants from alienating the schedule property. Alternatively, the plaintiff has sought for a direction to the defendants to repay Rs.20,75,000/- paid under the agreement of sale.
5. The plaintiff also filed an I.A. No.5 under Order XXXIX Rule 1 and 2 read with Section 151 of CPC seeking an injunction against the defendants, restraining them from alienating the schedule property until the disposal of the suit.
6. It is contended in his affidavit accompanying the I.A.No.5 that he has filed a suit for specific performance and to declare the compromise decree -6- NC: 2025:KHC:9864 MFA No. 6372 of 2024 passed in OS No. 345/2011 as null and void. It is further contended that the plaintiff entered into an agreement of sale on 25.01.2006 with the wife and children of late Ramappa, including Ramappa himself and they failed to perform the contract. The plaintiff paid Rs.20,75,000/- out of Rs.37,50,000/-, and the balance of Rs.16,75,000/- remains to be paid. However, without informing the plaintiff, the defendants entered into a compromise in OS No. 345/2011 despite having received a substantial amount from the plaintiff. The defendants are trying to change the nature of the property and alienate the schedule property. Hence, he prayed for allowing the application to restrain the defendants from alienating and creating third-party interests.
7. The defendant No.11 filed objections contending that the suit is not maintainable. Defendant Nos.1 to 11 in OS No.345/2011 compromised the matter and the defendant No.10 got 10 guntas in the compromise decree and changed the khata based on the final decree. -7-
NC: 2025:KHC:9864 MFA No. 6372 of 2024 The defendant No.10 executed a relinquishment deed in favor of defendant No.1 and he is in possession of the property. The agreement dated 25.01.2006 and the receipt dated 05.05.2016 are created and fabricated documents. The revenue records stand in the name of defendant Nos.1, 4, 6, 7, 8 and 11 to the extent of 1 acre 6 guntas. The suit property was originally granted to late Ramappa with a condition not to alienate for 15 years. The property is ancestral property and has become the self- acquired property of defendant No.11. Hence, he prayed for dismissing the I.A.No.5 filed by the plaintiff.
8. The defendant No.8 also filed objections contending that defendant Nos.1 to 11 have compromised the matter. The defendant No.8 got 8 guntas of land in the final decree and he is in possession of the schedule property. The plaintiff created the false documents with an intention to grab the land from the defendants. There is a prohibition on alienating the property. The suit was -8- NC: 2025:KHC:9864 MFA No. 6372 of 2024 compromised in the year 2014. Hence, he prayed for dismissing the application.
9. After hearing the arguments, the Trial Court dismissed the application. Hence, the appellant is before this Court.
10. Having heard the arguments and perused the records, the points that arise for my consideration are as follows:
i) Whether the plaintiff has made out a prima facie case in his favor?
ii) Whether the balance of convenience lies in his favor?
iii) Whether the plaintiff will suffer hardship or loss if the injunction is not granted?
iv) Whether the order of the Trial Court calls for interference?
11. Upon hearing the arguments and perusal of the records, it reveals that the plaintiff filed a suit for specific performance of the contract, directing defendant Nos.1 to -9- NC: 2025:KHC:9864 MFA No. 6372 of 2024 3 and legal heirs of late Ramappa to execute the sale deed, alleging that Ramappa, his wife, and children entered into an agreement of sale with him on 25.01.2006 and he paid Rs.18,75,000/-. Subsequently, the plaintiff paid another Rs.2,00,000/-, making a total of Rs.20,75,000/- paid, with only Rs.16,75,000/- pending. Whereas the defendants contended that the document is a fabricated one and that there was no proper consideration passed from the plaintiff to defendant Nos.1 to 3 and there is a non-alienation clause in the land granted by the government in the name of late Ramappa.
12. On perusal of the contentions and the documents, it is seen that the plaintiff filed the suit only in the year 2017 for specific performance of the contract, whereas the alleged agreement of sale claimed by the plaintiff is dated 25.01.2006. If, Rs.20,75,000/- was paid and only Rs.16,75,000/- was pending, why did the plaintiff not issue any notice to defendant Nos.1 to 3 or Ramappa calling them to execute the sale deed? He has also not
- 10 -
NC: 2025:KHC:9864 MFA No. 6372 of 2024 filed any suit against them for specific performance of the contract for more than 10 years. If, the land was granted to late Ramappa with a non-alienation clause, the question of entering into an agreement of sale, alienating the property and receiving the sale consideration does not arise. Apart from that, the very agreement of sale does not reveal when the actual advance amount was paid to Ramappa and his children. It merely states that Rs.18,75,000/- was paid, but does not specify the date or provide any acknowledgment to substantiate the payment before entering into the agreement of sale. The agreement of sale is also executed on Rs.200/- stamp paper. However, when the plaintiff is unable to show the actual advance payment made to the defendants and not calling upon defendant Nos.1 to 3 or Ramappa to execute the sale deed and not filing the suit within the prescribed time, at this stage, the Court cannot consider that there is a prima facie case made out by the plaintiff in his favor.
- 11 -
NC: 2025:KHC:9864 MFA No. 6372 of 2024
13. As regards the balance of convenience, the defendants have already compromised the case in OS No.345/2011 in the year 2014, and in the final decree proceedings, the property has been divided. The defendant No.8 got 8 guntas of land, the defendant No.10 got 10 guntas of land and thereafter, the defendant No.10 relinquished his right in favor of the defendant No.1. The said compromise decree requires to be set aside by the Court only after a full-fledged trial. Moreover, the compromise decree cannot be challenged by filing a separate suit, as there is a bar under Order XXIII Rule 3(a) of CPC. The property itself is not available for execution of the sale deed, in view of the decree passed in OS No.345/2011. Therefore, the balance of convenience also does not lie in favor of the plaintiff.
14. As regards irreparable loss, the plaintiff alleges to have paid Rs.20,75,000/- and seeks relief of declaration to set aside the compromise decree and also for specific performance of the contract to execute the sale deed by
- 12 -
NC: 2025:KHC:9864 MFA No. 6372 of 2024 the defendants. He has to prove the case regarding the agreement of sale, payment of advance sale consideration and his readiness and willingness, etc.,. On the other hand, he has also claimed an alternative prayer for a refund of the earnest money. Due to these circumstances, the injunction cannot be granted, as irreparable loss would not be caused to the plaintiff.
15. Considering these three principles, the Trial Court has rightly rejected the application filed by the plaintiff for granting an injunction. This suit came to be filed after a lapse of 16 years from the date of the agreement of sale. The suit was filed in 2017, but the relief of specific performance and declaration was sought only in 2023. Therefore, the Trial Court has rightly held that the balance of convenience lies in favor of the defendants rather than the plaintiff and that the defendants would suffer hardship and inconvenience if the injunction is granted. Therefore, the Trial Court has rightly
- 13 -
NC: 2025:KHC:9864 MFA No. 6372 of 2024 dismissed the application filed by the plaintiff seeking an injunction.
16. This Court does not find any error, illegality or perversity in the order under challenge and it does not call for interference. Accordingly, point Nos.1 to 4 are answered against the appellant/plaintiff. The appeal is devoid of merits and is liable to be dismissed.
17. Accordingly, the appeal filed by the plaintiff is hereby dismissed.
Sd/-
(K.NATARAJAN) JUDGE NJ CT:SI