Karnataka High Court
Smt Vijayalakshmamma vs Sri K V Ashwathanarayanaswamy on 20 March, 2017
Author: B.Veerappa
Bench: B. Veerappa
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF MARCH, 2017
BEFORE
THE HON' BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION No.4260/2017 (GM-CPC)
BETWEEN:
1. SMT. VIJAYALAKSHMAMMA ,
D/O LATE VENKATAPPA,
W/O K. CHANNAKRISHNAPPA,
AGE: 49 YEARS,
RESIDING AT HONNAGHATTA,
KASABA HOBLI,
DODDABALLAPUR TALUK.
2. SMT. JANAKAMMA,
D/O LATE VENAKATAPPA,
W/O K. C. RAMESH,
AGE: 42 YEARS,
RESIDING AT KOOGENAHALLI,
DODABELAVANGALA HOBLI,
DODDABALLAPUR TALUK.
... PETITIONERS
(BY SRI S. V. SHASTRI & SRI RAVINDRANATH. K., ADVOCATES)
AND:
1. SRI K. V. ASHWATHANARAYANASWAMY,
S/O LATE VNKATAPPA,
AGE: MAJOR,
RESIDING AT KODIGEHALLI
KASABA HOBLI,
DODDABALLAPUR TALUK.
2. SMT. BHAGYAMMA,
D/O LATE VENKATAPPA,
W/O RAVI @ EREGOWDA,
AGE: MAJOR
2
RESIDING AT NERALAGHATTA
KASABA HOBLI,
DODDABALLAPUR TALUK.
3. SRI SHIVARUDRAIAH,
S/O V. C. APPA,
AGE: MAJOR,
RESIDING AT KODIGEHALLI,
KASABA HOBLI,
DODDABALLAPUR TALUK.
4. SRI KEMPE GOWDA,
S/O BYREGOWDA,
AGE: MAJOR,
RESIDING AT KOOGENAHALLI,
KASABA HOBLI,
DODDABALLAPUR TALUK.
5. SRI NANJE GOWDA,
S/O DODDAIAH,
AGE: MAJOR,
RESIDING AT NERALAGHATTA
KASABA HOBLI,
DODDABALLAPUR TALUK.
... RESPONDENTS
(BY SRI UDAY HOLLA, SR. COUNSEL FOR
SRI C.V. KRISHNAN, ADVOCATE FOR R3;
NOTICE TO R1, R2, R4 & R5 ARE DISPENSED WITH
V/O DATED 10.02.2017)
......
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER REJECTING THE APPLICATION FILED UNDER ORDER
XXXIX RULES 1 & 2 OF CPC FILED BY THE PETITIONERS, AND
ALLOWING THE APPLICATION FILED UNDER ORDER XXXIX
RULE 4 OF CPC FILED BY THE R-3 DATED 8.9.2016 PASSED IN
O.S.NO.7 OF 2006, ON THE FILE OF THE CIVIL JUDGE AT
DODDABALLAPUR VIDE ANNEXURE-K AND ORDER PASSED IN
MA NO.11/2016 DATED 30.11.2016 ON THE FILE OF SENIOR
CIVIL JUDGE & JMFC, DODDABALLAPUR VIDE ANNEXURE-L.
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THIS WRIT PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The plaintiffs in O.S.No.7/2006 on the file of the Prl. Civil Judge and JMFC, Doddaballapura, are before this Court challenging the order dated 08.09.2016 dismissing the application filed by the plaintiffs under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure and allowing the application filed by the third defendant under Order XXXIX Rule 4 of Code of Civil Procedure and vacating the status quo order passed on 15.03.2006 and also the order dated 30.11.2016 made in M.A.No.11/2016 on the file of the Senior Civil Judge and JMFC, Doddaballapura, dismissing the appeal.
2. The petitioners herein filed O.S.No.7/2006 for partition and separate possession in respect of 14 items of the schedule properties contending that the suit schedule properties are the joint family properties of plaintiffs and defendants 1 and 2 and that the plaintiffs 4 are entitled to 1/4th share etc. The defendants 1 and 2 filed written statement, denied the plaint averments. The defendant No.3 filed written statement and admitted the genealogical tree. It was contended that the first defendant sold Sy.No.63/4 in favour of the third defendant and the plaintiffs are not bound by the said alienation and that the third defendant purchased item Nos.1, 2 and 11 under a registered sale deed 16.06.2003 from the first defendant and they are in possession and enjoyment of the same and therefore sought for dismissal of the suit.
3. The plaintiffs also filed a compromise petition under Order XXIII Rule 3 of the Code of Civil Procedure and except item Nos.1, 2 and 11, all other properties were compromised and the plaintiffs want to continue the suit against the third defendant in respect of the said properties.
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4. During pendency of the said suit, an order of status quo was granted by the Trial Court on 15.03.2006. Subsequently plaintiffs filed an application for temporary injunction under Order XXXIX Rule 1 and 2 restraining the third defendant from putting up any illegal construction over the item No.2 of the schedule till the disposal of the suit contending that the plaintiff filed suit for partition and separate possession against the defendants and without knowledge of the plaintiffs first defendant sold item No.2 in favour of second defendant. Therefore, alienation made is not binding on the plaintiffs.
5. The third defendant filed objections denying the averments made in the application and specifically contended that the third defendant is the bonafide purchaser of item Nos.1, 2 and 11 under registered sale deed dated 16.06.2003, plaintiffs also consented for the sale deed by affixing their signatures and later on 6 property prices gone up and therefore, filed suit for partition with malafide intention to demand money from the third defendant. It was further contended that the plaintiffs have obtained an order of status quo on 15.03.2006 seeking defendants not to alienate the suit schedule properties. The said order of status quo is not barring the third defendant from making constructions on suit item Nos. 1, 2 and 11. The third defendant being a bonafide purchaser made construction on suit item No.2 and has been running Ayurvedic Medical College from 2005 under the name "Atreya Ayurvedic Medical College, Hospital and Research Centre" where nearly 200 students are prosecuting their studies in Ayurveda which has also created employment to the local residents. The plaintiffs with an intention to put the third defendant into difficulties have filed this suit and the application. It is further contended that the construction was made in the year 2006 and further construction is made in the years 2008 and 2009. The 7 application is filed by the plaintiffs after they were cross examined in part. When the case was posted for plaintiffs' further cross examination present application is filed to evade herself from entering the witness box and therefore sought for dismissal of the application.
6. The third defendant also filed an application under Order XXXIX Rule 4 of Code of Civil Procedure praying to vacate the interim order of status quo granted on 15.03.2006, reiterating the averments made in the written statement. The said application was resisted by the plaintiffs by filing objections.
7. The Trial Court considering the entire material on record, by the impugned order dated 08.09.2016, recorded a specific finding that the plaintiffs have not made out a prima-facie case and balance of convenience is not in favour of the plaintiffs and if temporary injunction is granted, it will cause more hardship to the defendant No.3. Accordingly, the Trial Court dismissed 8 the application filed by the plaintiffs under Order XXXIX Rule 1 and 2 of Code of Civil Procedure and allowed the application filed by the third defendant under Order XXXIX Rule 4 of Code of Civil Procedure and vacated the status quo order dated 15.03.2006.
8. Being aggrieved by the said Order dated 08.09.2016, the plaintiffs filed M.A.No. 11/2016 on the file of the Senior Civil Judge and JMFC, Doddaballapura, which came to be dismissed on 30.11.2016 confirming the order passed by the Trial Court.
9. Being aggrieved by the concurrent findings of fact recorded by the Courts below, the present writ petition is filed.
10. I have heard the learned counsel for the parties to the lis.
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11. Sri Ravindranath, learned counsel for the petitioners vehemently contended that the impugned order passed by the Trial Court rejecting the application for temporary injunction which was confirmed by the lower appellate court is erroneous and contrary to the material on record. Both the Courts below failed to notice the fact that the suit schedule properties are the joint family properties of plaintiffs and defendant Nos.1 and 2. Therefore, any construction made will cause irreparable loss and injury to the plaintiffs which cannot be compensated in terms of money.
12. Learned counsel further contended that the third defendant, in violation of the status quo order dated 15.03.2006 has proceeded with the construction in item No.2 therefore the order dated 08.09.2016 passed by the Trial Court vacating the status quo order is not correct. Therefore, sought to set-aside the impugned 10 orders passed by the Courts below by allowing the writ petition.
13. Per contra, Sri Udaya Holla, learned Senior Counsel appearing for the third respondent sought to justify the impugned order passed by the Trial Court and strenuously contended that the very application filed by the plaintiffs for temporary injunction is not maintainable and same is liable to be dismissed. Admittedly, plaintiffs have not challenged the sale deed dated 16.06.2003 executed by defendant No.1 in favour of defendant No.3 as on the date of filing of the suit, defendant has already constructed the building and running Atreya Ayurvedic Medical College, Hospital and Research Centre. Suppressing the very material fact, an application for temporary injunction is filed which is not maintainable. Unless and until the plaintiffs establish that item no.2 is joint family property, plaintiffs are not entitled to equitable order of temporary injunction. 11 Therefore, both the Courts below have rightly dismissed the application for temporary injunction. Further, the plaintiffs are also signatories to the sale deed executed by the first defendant in favour of third defendant and the same has been suppressed in the suit and therefore, plaintiffs are not entitled to an order of injunction. Therefore, learned Senior Counsel sought to dismiss the writ petition.
14. In view of the rival contentions urged by the learned counsel for the parties, the only point that arises for consideration is:
"Whether the Courts below are justified in dismissing the application filed by the plaintiffs for temporary injunction in respect of item No.2 i.e., Sy.No.68/1 measuring 4 acres 22 guntas of Kodigehalli, Kasaba Hobli, Doddaballapur Taluk, in the facts and circumstances of the present case?
15. I have given my anxious consideration to the arguments advanced by the learned counsel for the 12 parties and perused the entire material on record, carefully.
16. It is undisputed fact that the plaintiffs filed suit in respect of item Nos.1 to 14 contending that they are the joint family properties of plaintiffs and defendants 1 and
2. It is also not in dispute that the plaintiffs and defendants 1, 2 and 4 filed compromise petition under Order XXIII Rule 3 of Code of Civil Procedure and in respect of suit schedule properties except item Nos.1, 2 and 11 which are subject matter of the present petition.
17. It is also not in dispute that the plaintiffs except praying 1/3rd share have not questioned the sale deed dated 16.06.2003 executed in favour of the third defendant in respect of item Nos.1, 2 and 11. It is the specific case of the third defendant in the application for temporary injunction that the plaintiffs also signed the sale deed made in favour of third defendant as witness. It is the specific contention of the third defendant that 13 the construction was already made even prior to filing of the application. Though the suit was filed in the year 2006, application for temporary injunction was filed in the month of September 2015 only in respect of item No.2. It is the specific contention in the objection that in the year 2006, 2008 and 2009 construction was over and they are running medical college in item No.2 from 2005 and there are nearly 200 students studying in the said college.
18. The trial court considering the pleadings in the plaint, written statement, application for temporary injunction and the objections and also application filed under Order XXXIX Rule 4 of Code of Civil Procedure for vacating, by the impugned order has recorded a specific finding that the plaintiffs have failed to make out a prima facie case, balance of convenience is not in favour of the plaintiffs and the third defendant has purchased item No.2 from first defendant through registered sale 14 deed. Plaintiffs have produced the photographs with respect to the construction of the building, but not produced any documents pertaining to the status of the construction of the building as on the date of filing of the suit or at the time of passing the status quo order. As per the photographs, it discloses, the construction was almost completed and at this stage, if the parties are restrained from constructing the building it will effect the development of the institution.
19. The Trial Court further observed that if a person is to get entitled to the temporary injunction he must show that he has a prima-facie case and also show that balance of convenience is in his favour and the irreparable injury that would be caused cannot be compensated in terms of money. The Trial Court further recorded a finding of fact that defendant had constructed building for the purpose of running college and also the construction work was almost completed 15 and they are running the hospital and college in which about 200 students are studying in Ayurvedic Medicine. If the plaintiffs succeed to claim the same after completion of the evidence, then they are entitled to take possession of their share in the said properties. Further, for the purpose of determining the share of the parties, status quo order is not helpful. Mere construction in the suit schedule properties will not effect on the share or rights of the parties over the suit schedule properties. Though the plaintiffs are having the right to claim their shares in the properties, but at this stage, they have no right to restrain the defendants from developing the properties, since the third defendant has purchased the suit schedule item No.1, 2 and 11 properties through registered sale deed. Therefore, Trial Court dismissed the application.
20. On appreciation of the entire material on record, the lower appellate court recorded a specific finding that 16 certified copy of the sale deed dated 16.06.2003 in respect of item No.2 executed by the first defendant in favour of third defendant, shows that the mother of plaintiffs, defendants 1 and 2 by name Smt.Narayanamma, plaintiff No.1 Smt.Vijaya- lakshmamma, plaintiff No.2 Smt.Janakamma and defendant No.2 Smt.Bhagyamma have signed therein as witnesses.
21. The lower appellate court further recorded a finding that plaintiffs have entered into compromise with other defendants partially which was accepted by the Trial Court. This is one of the conduct of the plaintiffs which militates against their claim. The defendant No.3 claims that it is undertaking developmental activity in the item No.2, the balance of convenience lies in favour of the third defendant rather than in favour of the plaintiffs. The third defendant would suffer irreparable loss and injury if an order of 17 temporary injunction is granted. On the other hand, if the relief sought is refused plaintiffs would not suffer any irreparable loss and injury accordingly, lower appellate court dismissed the appeal.
22. Both the Courts below considering the application under Order XXXIX Rule 1 and 2 exercising discretionary power held that the plaintiffs have not made out prima facie case for grant of temporary injunction and irreparable loss and injury would be caused to the third defendant, if the application is allowed. Accordingly, concurrently refused to grant an equitable order of temporary injunction in favour of the plaintiffs.
23. For the reasons stated above, the point raised for consideration in this petition has to be answered in the affirmative holding that the Courts below are justified in dismissing the application filed by the plaintiffs under Order XXXIX Rule 1 and 2 of Code of Civil Procedure 18 and allowing application of third defendant filed under Order XXXIX Rule 4 of Code of Civil Procedure and same is in accordance with law.
24. The plaintiffs have not made out any case to interfere with the impugned orders passed by the Courts below in exercise of powers under Article 227 of the Constitution of India. Accordingly writ petition is dismissed.
25. At this stage, learned counsel for the petitioners submits that subsequently during pendency of the appeal before the lower appellate Court, third defendant seems to have executed gift deed in favour of his son. If that is so, it is open for him to take appropriate steps before the Trial Court in accordance with law.
Since the writ petition is dismissed, I.A.1/2017 does not survive for consideration.
Sd/-
JUDGE kcm