Karnataka High Court
Smt. Nagamma vs Smt Lalithamma on 18 November, 2021
M.F.A.NO.1703/2021
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF NOVEMBER 2021
BEFORE
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
MISCELLANEOUS FIRST APPEAL NO.1703/2021 (CPC)
BETWEEN:
Smt.Nagamma,
Aged about 59 years,
D/o late Munichinnappa,
W/o Nallappa,
R/a Nallayyanadoddi village,
Indlavadi Post,
Anekal Taluk,
Bengaluru Urban District ... APPELLANT
(BY SRI K.S. MALLIKARJUNA REDDY, ADV.)
AND:
1. Smt. Lalithamma,
Aged about 74 years,
W/o late Munichinnappa
2. Smt.Shobha,
Aged about 46 years,
W/o late Sanand Murthy,
Both residing at
No.69, II Main road,
Behind Kabeer Math Land Mark,
Kengeri Satellite Town,
Bengaluru 560 060.
3. The Commissioner,
Bengaluru Development Authority,
T.ChowdaiahRoad,
Bengaluru 560 020. ... RESPONDENTS
M.F.A.NO.1703/2021
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(BY SRI MITHUN G.A., ADV. FOR R.1 AND R.2
SRI B.VACHAN, ADV. FOR R.3)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF
CPC AGAINST THE ORDER DATED 17.10.2019 PASSED ON IA
NO.3 IN O.S.NO.1328/2015 ON THE FILE OF THE III ADDL.
SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT,
BENGALURU, DISMISSING THE APPLICATION FILED UNDER
ORDER XXXIX RULES 1 AND 2 OF CPC.
THIS MFA COMING ON FOR ADMISSION THIS DAY,
THE COURT THROUGH VIDEO CONFERENCE DELIVERED THE
FOLLOWING:
JUDGMENT
"Whether the impugned order rejecting the application for temporary injunction suffers vice of perversity, arbitrariness and capriciousness ?" is the question involved in this case.
2. First respondent is the mother and second respondent is the sister in law of the appellant. Sananda Murthy-the husband of second respondent died in 2008. Munichinnappa-the husband of first respondent died on 13.10.1975. The partition took place between the siblings of Munichinnappa, defendant No.1 and Sananda Murthy under the registered sale deed dated 13.10.1993. In the said partition plaint schedule item M.F.A.NO.1703/2021 3 M No.1 to 3 properties were allotted to the branch of Munichinnappa.
3. The subject matter of this appeal is item No.1 property bearing Sy.No.41 measuring 3 acre 34 guntas of Challaghatta village, Kengeri Hobli. Under the registered document titled as 'Release cum Single partition deed' executed between the appellant, defendant No.1 and deceased Sananda Murthy, the partition was purportedly effected in respect of the plaint schedule item No.1 property. Under the said document, appellant released her rights in the said property receiving 8 guntas of land in full settlement of her share.
4. Respondent No.3 i.e., Bengaluru Development Authority issued preliminary notification in the year 1976 for acquisition of plaint schedule item No.1 property for the purpose of the development of Nada Prabhu Kempegouda layout. The final notification was issued in the year 2010. In 2015 appellant filed O.S.No.1328/2015 before the Principal Senior Civil M.F.A.NO.1703/2021 4 M Judge, Bengaluru Rural district, Bengaluru against the defendants claiming that all the suit schedule properties are ancestral joint family properties. She further claimed that, defendant Nos.1 and 2, and Sananda Murthy assuring that she will be given her share in all the properties got executed the 'Release cum Single Partition Deed' dated 04.07.2005 and later they resiled from their promise.
5. In the suit, appellant sought declaration that, she is entitled to one-third share in the suit schedule item No.1 to 3 properties and that the 'Release cum Single Partition Deed' dated 04.07.2005 does not bind her. Further she sought for partition and separate possession of her one-third share in all suit schedule properties.
6. In the suit she filed IA No.3 seeking temporary injunction to restrain respondent No.3 from disbursing incentive sites carved out of suit schedule item No.1 property till the disposal of the suit. In the affidavit filed in support of the application she claimed M.F.A.NO.1703/2021 5 M that she has one-third share in suit schedule item No.1 property. Further she alleged that respondent Nos.1 and 2 are attempting to get the incentive sites registered from respondent No.3 in lieu of acquisition of the said property. She claimed that if that is done, that leads to multiplicity of proceedings, therefore, injunction needs to be granted in her favour.
7. The application was opposed by defendant Nos.1 to 3 on the ground that, the suit is vexatious and not maintainable. Defendant No.3 contented that, on the basis of the award in respect of lands acquired, it will initiate further action by following due process of law. All the defendants contented that plaintiff has not made out prima-facie case and sought for dismissal of the suit.
8. The trial Court by the impugned order rejected the application on the ground that the appellant has failed to make out the prima-facie case. The order under Order XXXIX Rules 1 and 2 of CPC being a discretionary order, this Court in appellate M.F.A.NO.1703/2021 6 M jurisdiction cannot interfere with the same unless it is shown that the said order suffers perversity, arbitrariness or illegality.
9. To get herself entitled for temporary injunction order, the appellant has to satisfy the following aspects:
(i) That she has a prima-facie case. Prima-facie case means prima-facie case of her legal right and injury to such right. The suit of the plaintiff is not vexatious and there is case to go for trial;
(ii) Balance of convenience lies in her favour.
(iii) If temporary injunction is not granted, she will suffer irreparable injury;
10. As already pointed out, I.A.No.3 and this appeal are limited only to plaint schedule item No.1 property which measures 3 acres 34 guntas. Plaintiff herself admits in the plaint that she has executed 'Release Cum Partition Deed' dated 04.07.2005 and she has sought for declaration that the same does not bind M.F.A.NO.1703/2021 7 M her. Such suit is filed by her after 10 years of execution of the said documents.
11. In the plaint, she only says that defendant No.1 and Sananda Murthy promised her that they will give her one-third share and got such document executed, later they resiled from their promise. Admittedly, Sananda Murthy died in the year 2008. The suit is filed in the year 2015 i.e., after ten years of execution of the documents and after 7 years of the death of Sananda Murthy.
12. As per Article 58 of the Limitation Act, the suit has to be filed within 3 years from the date of cause of action. Admittedly, the final notification for acquisition was issued in 2010. Having regard to the aforesaid facts and circumstances, in view of the limitation, the maintainability of the suit itself is doubtful.
13. Further, as on the date of filing of the application, respondent No.3 had not passed any award M.F.A.NO.1703/2021 8 M with regard to the incentive sites. The appellant only states that she has credible information that respondent No.3 has given the incentive sites. Respondent No.3 in the statement of objections has stated that it will initiate further action with regard to the acquired lands following due process of law.
14. As per the Release-Cum-Single Partition Deed, her share is 8 guntas in the said land. Since, no concrete proposal is given by respondent No.3 for allotment of incentive sites, the application was prematured. Even if such sites are allotted and if the plaintiff succeeds, she will be entitled one-third share in those sites also.
15. The trial Court on considering all the aforesaid documents rightly held that, the plaintiff has failed to make out prima-facie case. When prima-facie case is not proved, the question of considering balance of convenience and irreparable injury do not arise. This Court does not find any perversity, arbitrariness or M.F.A.NO.1703/2021 9 M capriciousness in the order of the trial. Therefore, the appeal is dismissed.
In view of dismissal of the appeal, pending IAs stood disposed of.
Since the first respondent is a senior citizen, the trial court is requested to dispose of the suit as expeditiously as possible being uninfluenced by any of the observations made in this order.
Sd/-
JUDGE akc