Karnataka High Court
J. Kavitha vs J. Antoney Raj on 16 April, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:15079
MFA No. 7673 of 2023
C/W MFA No. 844 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 7673 OF 2023 (CPC)
C/W
MISCELLANEOUS FIRST APPEAL NO. 844 OF 2024 (CPC)
IN MISCELLANEOUS FIRST APPEAL NO. 7673 OF 2023:
BETWEEN:
1. SRI J.ANTONEY RAJ
S/O LATE JANARDHAN REDDY
AGED ABOUT 40 YEARS
R/AT NO.8, 7TH CROSS
RAJEEV GANDHI ROAD
JARAHANAHALLI
BANGALORE SOUTH TALUK
BANGALORE - 560 078.
2. SRI J. SANTHOSH KUMAR
S/O LATE JANARADHANA REDDY
Digitally signed
by DEVIKA M AGED ABOUT 38 YEARS
Location: HIGH R/AT NO.8, 7TH CROSS
COURT OF RAJEEV GANDHI ROAD
KARNATAKA
JARAGANAHALLI
BANGALORE SOUTH TALUK
BANGALORE - 560078.
...APPELLANTS
(BY SRI. MADHUSUDHAN M.N., ADVOCATE)
AND:
1. SMT. J. KAVITHA
D/O LATE JANARADHANA REDDY
W.O HANUMANTHA REDDY
AGED ABOUT 41 YEARS
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NC: 2024:KHC:15079
MFA No. 7673 of 2023
C/W MFA No. 844 of 2024
R/AT NO.303 (2215), 10TH MAIN
3RD BLOCK, JAYANAGAR
BANGALORE - 560 001.
2. M/S. SAI BALAJI SHELTERS
A PARTNERSHIP FIRM
HAVING ITS OFFICE AT NO.135
SY NO.58/8, OPP. SUBRAMANYA TEMPLE
ROYAL COUNTY LAYOUT
PARAPPANA AGRAHARA
BANGALORE - 560 100
REP. BY ITS MANAGING DIRECTOR
SRI Y.M.LOKESH
3. SRI LOKESH Y.M.
S/O MUNIVENKATAPPA
AGED ABOUT 40 YEARS
R/AT NO.258//A, 18TH MAIN
3RD SECTOR, HSR LAYOUT
BANGALORE - 560 102.
4. SMT. V. SHAMALA
W/O ANIL PRASAD J.,
AGED ABOUT 38 YEARS
R/AT NO.115, MAGONDI
BANGARPET
KOLAR - 563 114.
...RESPONDENTS
(BY SRI. VARADARAJAN M.S., ADVOCATE FOR R1;
SRI D.R.RAVISHANKAR, SENIOR COUNSEL FOR
SRI GIRISH KUMAR R., ADVOCATE FOR C/R2 & R3;
SRI T.G.RAVI, ADVOCATE FOR R4)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF THE
CPC, AGAINST THE ORDER DATED 03.10.2023 PASSED ON IA
NO.1, 2 AND 3 IN O.S.NO.1737/2023 ON THE FILE OF THE
XXXIX ADDITIONAL CITY CIVIL JUDGE, (CCH-40), BENGALURU
CITY, ALLOWING IA NO.1 FILED UNDER ORDER 39 RULE 1 AND
2 R/W OF CPC, PARTLY ALLOWING IA NO.3 FILED UNDER
ORDER 39 RULE 4 OF CPC, 1908, REJECTING IA NO.2 FILED
UNDER ORDER 39 RULE 1 AND 2 OF CPC, 1908.
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NC: 2024:KHC:15079
MFA No. 7673 of 2023
C/W MFA No. 844 of 2024
IN MISCELLANEOUS FIRST APPEAL NO. 844 OF 2024:
BETWEEN:
1. J. KAVITHA
D/O LATE JANARADHANA REDDY
AGED ABOUT 41 YEARS
R/AT NO.303 (2215), 10TH MAIN
3RD BLOCK, JAYANAGAR
BANGALORE - 560 001.
...APPELLANT
(BY SRI. VARADARAJAN M.S., ADVOCATE)
AND:
1. J. ANTONEY RAJ
S/O LATE JANARDHAN REDDY
AGED ABOUT 40 YEARS
R/AT NO.8, 7TH CROSS
RAJEEV GANDHI ROAD
JARAHANAHALLI
BANGALORE SOUTH TALUK
BANGALORE - 560 078.
2. SRI J. SANTHOSH KUMAR
S/O LATE JANARADHANA REDDY
AGED ABOUT 38 YEARS
R/AT NO.8, 7TH CROSS
RAJEEV GANDHI ROAD
JARAGANAHALLI
BANGALORE SOUTH TALUK
BANGALORE - 560078.
3. M/S. SAI BALAJI SHELTERS
A PARTNERSHIP FIRM
HAVING ITS OFFICE AT NO.135
SY NO.58/8,
OPP. SUBRAMANYA TEMPLE
ROYAL COUNTY LAYOUT
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NC: 2024:KHC:15079
MFA No. 7673 of 2023
C/W MFA No. 844 of 2024
PARAPPANA AGRAHARA
BANGALORE - 560 100
REP. BY ITS MANAGING DIRECTOR
SRI Y.M.LOKESH
4. SRI LOKESH Y.M.
S/O MUNIVENKATAPPA
AGED ABOUT 40 YEARS
R/AT NO.258//A, 18TH MAIN
3RD SECTOR, HSR LAYOUT
BANGALORE - 560 102.
5. SMT. V. SHAMALA
W/O ANIL PRASAD J.,
AGED ABOUT 38 YEARS
R/AT NO.115, MAGONDI
BANGARPET
KOLAR - 563 114.
...RESPONDENTS
(BY SRI. MADHUSUDHAN M.N., ADVOCATE FOR R1 & R2;
SRI D.R.RAVISHANKAR, SENIOR COUNSEL FOR
SRI GIRISH KUMAR R., ADVOCATE FOR R3 & R4;
SRI T.G.RAVI, ADVOCATE FOR R5)
THIS MFA FILED IS UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 03.10.2023 PASSED ON I.A. NO.
1 IN O.S.NO.1737/2023 ON THE FILE OF THE XXXIX
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
CITY, (CCH-40), PARTLY ALLOWING THE I.A. NO.1 FILED
UNDER ORDER XXXIX RULES 1 AND 2 OF CPC, 1908.
THESE APPEALS, COMING ON FOR ORDERS THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC:15079
MFA No. 7673 of 2023
C/W MFA No. 844 of 2024
JUDGMENT
Heard the learned counsel for the appellants and learned counsel for the respondents.
2. These two appeals are filed by the plaintiffs as well as the first defendant challenging the order passed by the Trial Court on I.A.Nos.I and II which were filed not to alienate and not to put up any construction in the suit schedule property. The suit schedule property is bearing Sy.No.56/2. It is also the claim of the plaintiffs that property belongs to one Janardhan Reddy and plaintiffs also claim that they are the children of Janardhan Reddy through the second wife and the first defendant is the daughter of Janardhan Reddy through the first wife. It is also the case of the plaintiffs that the first defendant colluding with the land developer entered into a Joint Development Agreement ('JDA' for short) dated 30.08.2021 and subsequently, supplementary agreement also came into existence on 04.11.2022 and immediately, when they came to know about the same, approached the defendant Nos.1 and 2 and defendant No.1 assured for compromise and postponed the same. When the first defendant was reluctant to give share in -6- NC: 2024:KHC:15079 MFA No. 7673 of 2023 C/W MFA No. 844 of 2024 respect of the suit schedule property, the plaintiffs filed the suit and injunction order has been granted by the Trial Court and thereafter, an application is filed for vacating the interim order under Order 39 Rule 4 of CPC.
3. The first defendant disputed the relationship between the plaintiffs and the said Janardhan Reddy and contend that they are not family members of said Janardhan Reddy. It is also contended that one J. Gowtham was son of said Janardhan Reddy and he died issueless. The Trial Court having considered the material on record, particularly, considering the Aadhaar Card as well as the School Leaving Certificates of plaintiffs, in Para No.12 comes to the conclusion that prima facie material establishes that they are the children of said Janardhan Reddy and taken note of School Leaving Certificate as well as the Aadhaar Card, wherein the father name is mentioned as Janardhan Reddy and having considered the prima facie case, granted the relief permitting the defendants to alienate their 65% of share in the apartment as per the registered JDA dated 31.08.2021 to the intending purchasers and exparte order of temporary injunction passed -7- NC: 2024:KHC:15079 MFA No. 7673 of 2023 C/W MFA No. 844 of 2024 on I.A.No.I was modified to that extent. The Trial Court also temporarily restrained the defendant Nos.1 to 3 from alienating 35% of the share of the first defendant in the apartment as per the registered JDA to any third person till final disposal of the suit, having considered the share of 65% and 35% between the developers as well as the first defendant. Being aggrieved by the said order, the plaintiffs have filed the appeal in M.F.A.No.7673/2023.
4. Learned counsel for the appellants in M.F.A.No.7673/2023 would vehemently contend that when the first defendant is not having any absolute right, it is a collusive JDA agreement entered into between the parties, in order to knock off the rights of the plaintiffs. The Trial Court also failed to consider the very agreement sharing the land in the ratio of 65% and 35% and giving 65% of the land in favour of developer is nothing but defeating the rights of the plaintiffs and giving the land to the extent of only 35% in favour of the owner is also not correct and fair and the said JDA is entered into between the parties, in order to defeat the claim of the plaintiffs. Hence, the said order of the Trial Court has to be modified. Learned counsel also would submit that this Court -8- NC: 2024:KHC:15079 MFA No. 7673 of 2023 C/W MFA No. 844 of 2024 having heard the matter granted the relief not to put up any construction and subsequently, when the proposal was made to compromise the matter between the parties, this Court, vide order dated 15.02.2024 modified the order permitting the developer to sell the property, since the developer made the investment to the extent of 45 flats and insofar as the remaining flats are concerned, interim order would continue and subsequent to this order, though proposal was given for compromise, after obtaining the order at the hands of this Court, the first defendant has not come forward for compromise. Hence, there cannot be any order permitting the first defendant to sell the flats and order requires to be modified and the interest of the plaintiffs may be protected to the extent of 66% and the first defendant may be permitted to sell the flats only to the extent of 34% and there cannot be any permission to sell the share of the plaintiffs, since they have got 2/3rd share in the suit schedule property.
5. Learned counsel for the respondents/developers would vehemently contend that they have invested huge amount and the value of the property is very less and in view of the development, the value of the property is also increased -9- NC: 2024:KHC:15079 MFA No. 7673 of 2023 C/W MFA No. 844 of 2024 and not only the suit schedule property is included for development, but other property in Sy.No.58 is also included and huge money is invested and FAR is also increased in view of the JDA entered into between the parties. Learned counsel also would vehemently contend that when the property is developed by investing huge money and in terms of the agreement, the owners are entitled for only 35% and the same is a fair distribution in favour of the owners. Hence, the order passed by the Trial Court is sustainable and even at the most, it can be modified to the extent of 40% and 60% and developer may be permitted to sell 60% of the flats. Learned counsel also relied upon the photographs and submits that almost construction is completed and only finishing work is pending and if permission is given to sell only 45 flats, the very investment made by the developer will be under stake. Hence, this Court has to dismiss the appeal filed by the plaintiffs.
6. Learned counsel appearing for the appellant/first defendant in M.F.A.No.844/2024, who entered into JDA with the developers would vehemently contend that at the most, the plaintiffs are entitled for 22 flats out of 35% of owner's share and total flats which comes to the share of owners is only 33
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NC: 2024:KHC:15079 MFA No. 7673 of 2023 C/W MFA No. 844 of 2024 and the first defendant may be permitted to sell 11 flats and there cannot be any injunctive order against the first defendant. Learned counsel also would vehemently contend that when Janardhan Reddy died in the year 1996, khatha has been changed in the name of the first defendant along with another son J. Gowtham and the said J. Gowtham died in the year 2017 and subsequently, the first defendant got converted the property and these plaintiffs were not at all in picture till the date of JDA and the defendants dispute that they are not the children of Janardhan Reddy and when such being the case, there cannot be any injunctive order against the first defendant. Learned counsel also would vehemently contend that when this Court has already permitted to sell 45 flats and the same can be modified by giving permission to both developer as well as the first defendant to sell the said flats and the order of the Trial Court has to be modified by allowing M.F.A.No.844/2024.
7. In reply to the arguments of the learned counsel for the developer as well as the first defendant, learned counsel appearing for the appellants in M.F.A.No.7673/2023 would vehemently contend that even when the plaintiffs gave fair
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NC: 2024:KHC:15079 MFA No. 7673 of 2023 C/W MFA No. 844 of 2024 offer, the first defendant has not come forward to settle the issue and taking advantage of the JDA entered into with the developer and with an intention to defeat the claim, seeking such modification and there cannot be any permission to sell the property in favour of the first defendant and there cannot be any permission to sell the property to the extent of the claim made by the developer, though investment is made and the very sharing is not correct.
8. Having heard the learned counsel for the appellants and also learned counsel for the developer, these two appeals are filed by the plaintiffs as well as the first defendant. Having considered the material on record, the suit is filed for the relief of partition and specific performance. Learned counsel for the first defendant as well as the developer would vehemently contend that JDA has not been challenged and the plaintiffs have only sought for the relief of partition. It is also the claim of the plaintiffs that they are the children of Janardhan Reddy and the property devolves upon the said Janardhan Reddy in the partition dated 16.03.1975. The parties have not disputed the fact that property belongs to Janardhan Reddy and the first defendant denies the very relationship between the plaintiffs
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NC: 2024:KHC:15079 MFA No. 7673 of 2023 C/W MFA No. 844 of 2024 and the said Janardhan Reddy. The Trial Court, while considering the contention of the first defendant, considered the aadhaar card as well as the School Leaving certificates, wherein the name of the father of the plaintiffs is mentioned as Janardhan Reddy. When such material is considered by the Trial Court while considering the prima facie case and granted the relief of temporary injunction, the respective parties also not dispute the said finding. However, learned counsel for the first defendant would contend that the same has to be proved while considering the matter on merits. The said finding prima facie is given while considering I.A.Nos.1 and 2 with regard to the contention of the first defendant and there is a force in the contention of the respondents also that the same has to be considered while considering the matter on merits. However, taking note of prima facie case made out by the plaintiffs, admittedly, there is a JDA between the developer and the first defendant only.
9. It is the claim of the plaintiffs that they are also the children of said Janardhan Reddy and it is also not in dispute that these plaintiffs are not parties to JDA and sharing of flats agreement also came into existence on 04.11.2022. It is also
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NC: 2024:KHC:15079 MFA No. 7673 of 2023 C/W MFA No. 844 of 2024 the claim of the plaintiffs that in Para Nos.5 to 7 of the plaint, it is stated that when they came to know about the JDA, approached the defendant Nos.1 and 2 and thereafter also, in the month of January and February, 2023 had approached the first defendant, though the first defendant assured of giving share, when they started digging the foundation of suit schedule property, the defendants demanded to effect partition with regard to their legitimate share is concerned and the first defendant postponed the same and hence, without any other alternative approached the Court. The Trial Court considering the prima facie material on record, granted the relief of temporary injunction restraining the first defendant from alienating 35% of the owner's share is concerned and permitted the developer to alienate 65% of the share as per the registered JDA dated 31.08.2021.
10. It has to be noted that the plaintiffs are not the parties to the said JDA with regard to the sharing is concerned i.e., 65% and 35% and the same is disputed by the plaintiffs contending that the same is not a fair distribution between the owner as well as the developer and contend that the sharing ought not to have been made at the ratio of 65% and 35% and
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NC: 2024:KHC:15079 MFA No. 7673 of 2023 C/W MFA No. 844 of 2024 it ought to have been at the ratio of 55% and 45% i.e., 45% in respect of owner and 55% in respect of developer, since the property also situates in a prima location. Having taken note of the fact that first defendant had entered into a JDA, excluding the plaintiffs and though dispute that they are not having any relationship with the said Janardhan Reddy, the same has to be decided while considering the matter on merits as to whether they are the sons of Janardhan Reddy or not. When the first defendant has entered into JDA, excluding the plaintiffs, she cannot seek the discretionary relief for modifying the order of the Trial Court permitting her to sell the property and if she is permitted to sell the property, nothing will remain for consideration in the suit for partition and the agreement was entered into between the parties excluding the plaintiffs. When such being the case, the first defendant cannot seek any discretionary relief at the hands of this Court. However, this Court has taken note of JDA and the fact that developer had invested money for construction of building and the construction is also almost in the verge of finishing stage and this Court, taking note of the said fact into consideration, permitted to sell 45 flats and in terms of 65% and 35% sharing
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NC: 2024:KHC:15079 MFA No. 7673 of 2023 C/W MFA No. 844 of 2024 basis, the owners will get 33 flats and the remaining flats will go to developer. But the very sharing is disputed by the plaintiffs.
11. When such being the case, it is appropriate to modify the same and instead of temporarily restraining the defendant Nos.1 to 3 from alienating 35% of the share of the defendant No.1 as ordered by the Trial Court, it is appropriate to modify the interim order to the extent of 60% and 40% and the developer can complete the work and sell the flats to the extent of 60% and there can be an injunction order against the first defendant and developer in selling any flats to the extent of 40% and let the Trial Court decide the rights of the parties on merits whether the plaintiffs are entitled for partition or not. Hence, the order passed by the Trial Court is modified permitting the developer to sell 60% of the flats and the first defendant and the developer is directed not to sell 40% of the flats, till the disposal of the suit.
12. In view of the discussion made above, I pass the following:
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NC: 2024:KHC:15079 MFA No. 7673 of 2023 C/W MFA No. 844 of 2024 ORDER
(i) The appeal in M.F.A.No.7673/2023 is allowed in part and the judgment of the Trial Court is modified temporarily restraining the defendant Nos.1 to 3 from alienating 40% of the share of the owners till disposal of the suit and the developer is permitted to sell 60% of the flats after finishing the full construction.
(ii) The appeal filed by the first defendant in M.F.A.No.844/2024 is dismissed.
Sd/-
JUDGE ST List No.: 1 Sl No.: 10