Karnataka High Court
Mr N J Ravishankar vs Mrs T N Sarvamangala on 14 December, 2018
Author: B.M.Shyam Prasad
Bench: B.M.Shyam Prasad
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF DECEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD
M.F.A. NO.6814 OF 2014 (CPC)
C/W
M.F.A.NO.6815/2014
In MFA No.6814/2014
Between:
Mr.N.J.Ravishankar,
Aged about 45 years,
S/o. Late N.A.Kumar,
R/at No.20, S.B.Road,
V.V.Puram,
Bengaluru-560 004. ...Appellant
(By Sri.K.Surya Prakash Rao.K, Advocate)
And:
1. Mrs. T.N.Sarvamangala,
Major in age,
W/o. Late N.A.Kumar,
R/at No.20, S.B.Road,
V.V.Puram,
Bengaluru-560 004.
2. Mr.B.R.Jagadish,
Major in age,
S/o. Rudraiah,
R/at No.495/C, 7th Cross,
7th Block, West of Kanakapura Road,
Jayanagar, Bengaluru-560 082.
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3. Mrs. Renuka Poojar,
Aged about 34 years,
W/o. Manjunath Poojar,
R/at No.20, S.B.Road,
V.V.Puram,
Bengaluru-560 004.
4. Mr.N.Rudraiah,
Major in age,
S/o. Late Nanjundappa,
R/at No.495/C, 7th Cross,
7th Block, West of Kanakapura Road,
Jayanagar,
Bengaluru-560 082. ...Respondents
(By Smt. Nalini Venkatesh, Advocate for R2 & R4
Notice served on R1 & R3)
This MFA is filed under order 43 Rule 1 (r) of CPC,
against the order dated 5.7.2014 passed on I.A.No.11 in
O.S.No.6481/2006 on the file of the I Additional City Civil
& Sessions Judge, Bengaluru, rejecting I.A.No.11 filed
under Order 39, Rule 1 & 2, read with Section 151 of CPC.
In MFA No.6815/2014
Between:
Mr.N.J.Ravishankar,
Aged about 45 years,
S/o. Late N.A.Kumar,
R/at No.20, S.B.Road,
V.V.Puram,
Bengaluru-560 004. ...Appellant
(By Sri.K.Surya Prakash Rao.K, Advocate)
And:
1. Mrs. T.N.Sarvamangala,
Major in age,
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W/o. Late N.A.Kumar,
R/at No.20, S.B.Road,
V.V.Puram,
Bengaluru-560 004.
2. Mr.B.R.Jagadish,
Major in age,
S/o. Rudraiah,
R/at No.495/C, 7th Cross,
7th Block, West of Kanakapura Road,
Jayanagar, Bengaluru-560 082.
3. Mrs. Renuka Poojar,
Aged about 34 years,
W/o. Manjunath Poojar,
R/at No.20, S.B.Road,
V.V.Puram,
Bengaluru-560 004.
4. Mr.N.Rudraiah,
Major in age,
S/o. Late Nanjundappa,
R/at No.495/C, 7th Cross,
7th Block, West of Kanakapura Road,
Jayanagar,
Bengaluru-560 082. ...Respondents
(By Smt. Nalini Venkatesh, Advocate for R2 & R4
Sri.N.B.Nijalingappa, Advocate for R1 & R3)
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This MFA is filed under order 43 Rule 1 (r) of CPC,
against the order dated 5.7.2014 passed on I.A.No.10 in
O.S.No.6481/2006 on the file of the I Additional City Civil
& Sessions Judge, Bengaluru, rejecting I.A.No.10 filed
under Order 39, Rule 1 & 2, read with Section 151 of CPC.
These M.F.As coming on for Admission, this day, the
Court delivered the following:
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JUDGMENT
The plaintiff in O.S.No.6481/2006 on the file of the I Additional City Civil & Sessions Judge, Bengaluru City, Bengaluru (for short the 'learned Civil Court') has filed this appeal impugning the order dated 5.7.2014 passed on I.As 10 and 11. The learned Civil Judge by the impugned order has rejected the two applications filed by the appellant for temporary injunction. The appellant filed I.A.10 for temporary injunction restraining respondent Nos.2 and 4 from alienating or encumbering the suit schedule property and I.A.11 for temporary injunction restraining these respondents from putting up construction in the suit schedule property.
2. The parties are referred to as they are arrayed in O.S.No.6481/2016. The plaintiff commenced suit for partition of immovable property described as plots 'D & E' formed in S.No.15 of Bilkasipura Village, Uttarahalli Hobli, Bangalore South Taluk, Bangalore, measuring 2 acres (suit schedule property) asserting that he was entitled for 1/4th share therein. The essential crux of the plaintiff's case is -5- that plaintiff's mother (defendant No.1) was married to defendant No.4. Their marriage was dissolved and his mother married his father-deceased N.A.Kumar. His maternal grandmother, Nanjamma, executed nominal sale deed dated 12.6.1975 transferring site bearing No.530 of Hosakerehalli extension in favour of defendant No.4 whose marriage to defendant No.1 by then had been dissolved by decree of divorce. The defendant No.4 sold this property on 16.2.1981 however, utilizing the funds that he has received upon finalization of such sale, he purchased the suit schedule property under the sale deed dated 20.11.1980.
3. It is canvassed that though the sale deed was obtained in favour of defendant No.2, defendant No.4 had utilized the sale proceeds received from the sale of the property transferred by Nanjamma. In the aforesaid circumstances, neither defendant No.4 nor defendant No.2 could assert any independent title in the suit schedule property is owned by the joint family comprising of plaintiff and defendants 1 to 3.
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4. The defendant Nos.1 and 3, who are the plaintiff's mother and sister respectively, supported the claim of the plaintiff. However, defendants 2 and 4 resisted the plaint denying the plaint assertions. These defendants contended, amongst others, that in an earlier suit in O.S.No.349/1987 between them, there is a declaration that defendant No.4 is the absolute owner of the suit schedule property and this declaration was confirmed subsequently in an appeal before this Court in RFA No.491/2000 disposed of on 28.8.2007.
5. It is undisputed that plaintiff filed application under Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908 (I.A.8) seeking injunction against defendants No.2 and 4 from changing the nature of the property or creating any third party rights therein. This application is rejected by the learned Civil Court by its order dated 5.7.2010, and this order remains unchallenged. The plaintiff thereafter has filed the present two applications which are I.A.s 10 and 11. The learned Civil Court has rejected these applications holding that the -7- question, whether the sale deed 12.6.1975 executed by Smt.Nanjamma in favour of defendant No.4 is a nominal sale deed is a matter of fact which requires a full fledged trial. However, the fact that the suit schedule property was purchased prior to the sale of the property purchased under the sale deed dated 12.6.1975 (described as nominal sale deed by the plaintiff) prima facie shows that defendant No.4 had not utilized the sale proceeds from the sale of the property purchased under sale deed dated 12.6.1975. Further the learned Civil Court considering that the plaintiff had not controverted the specific assertions by defendants 2 and 4 that they had commenced construction of a multi residential apartment building in the suit schedule property prior to the date of suit and that completed construction prior to the date of applications and even transferred the units in favour of third party purchasers, concluded that the plaintiff had failed to make out the necessary parameters for grant of injunction.
6. The learned counsel for the plaintiff, in support of the appeal, contended that the learned Civil Court ought to -8- have considered the following three circumstances, and if considered it would have to be concluded that the plaintiff is able to establish the necessary ingredients for grant of injunction as prayed for. Firstly, though it was admitted that the marriage between defendant No.1 and defendant No.4 was dissolved, they and Smt.Nanjamma (mother of defendant No.1) maintained cordial relationship. Therefore, Smt.Nanjamma had executed sale deed dated 12.6.1975 in trust, as a nominal sale deed. Secondly, though purchase of the suit schedule property under the sale deed dated 20.11.1980 was prior to the sale of the property purchased under the sale deed dated 12.6.1975, the proximity in the transfer of such site and purchase of the suit schedule property probabalised the plaintiff's case. Thirdly, defendant No.1 will be more competent to speak about the state of affairs as of the years between 1975 and 1981 and she is supporting the plaintiff's case.
7. On the other hand, the learned counsel for the respondent Nos. 2 and 4 supported the impugned order. The learned counsel contended that the applications I.As- -9- 10 and 11 were not maintainable in view of the fact that prior application was rejected by the Civil Court by its order dated 5.7.2010 and this had remained unchallenged. Therefore, the proposition of constructive res-judicata would apply and the second application is not, in any event, maintainable. The plaintiff's case is premised on the assertion that the property is a joint family property of plaintiff and defendants 1 to 4, including defendant No.3 who is his sister. However, given the admitted fact of dissolution of marriage between defendant No.1 and defendant No.4 much prior to the year 1975, subsequently defendant No.1 marrying late N.A.Kumar and the plaintiff is not related to defendant No.4 by blood, the assertions as regards the joint family are not only impermissible but also very contradictory. Importantly, the defendants 2 and 4 had developed the property and created third party rights much prior to the date of the present applications. The alienees are not impleaded.
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8. In view of the rival submissions, the question that arises for consideration is, ' 'Whether the impugned order suffers from any infirmity?'
9. The undisputed facts relevant for the purpose of decision on the question formulated for consideration are:
A similar application was rejected on merits by order dated 5.7.2010. This order has remained unchallenged. It is settled law that the second application in similar set of facts and circumstances will not be maintainable and will have to be rejected on the ground of constructive res judicata. However, the second application would be maintainable if there are changes in circumstances justifying the filing of the second application. The learned counsel is unable to draw the attention of this Court to any such circumstance. The property is described as a vacant land in the plaint's schedule, but it is undisputed that 88 residential units have been constructed and transferred in favour of the third parties. Injunction is now sought for restraining defendants 2 and 4 from putting up further
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construction and creating third party rights. The present application, in the face of these circumstances, would not be maintainable. Further, as rightly pointed out, it is only after a full fledged trial, the plaintiff could establish that there could be a joint family amongst plaintiff and defendants 1 to 4, and indeed there was such family. Therefore, it cannot be said, in the facts of circumstances of the case concluded, that the plaintiff has made out prima facie case for issuance of injunction. The balance of convenience and irreparable hardship would also need to be looked into in the facts and circumstances as borne out by the records. In the facts and circumstances (especially in view of the completed construction), it cannot be concluded that the plaintiff has established the same in his favour.
10. For the foregoing reasons, this Court is of the considered opinion that the impugned order does not suffer from any perversity or illegality and the appeals are liable to be dismissed.
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11. Learned counsel for the appellant submits that any observations made in the impugned order or by this Court in this order could prejudice the plaintiff at the time of final adjudication and therefore, necessary observations may be made in this regard. It would suffice to say that any observation, and the reasoning of this Court, or for that matter by the learned Civil Court, are only for the purposes of deciding the two applications.
Therefore, appeals are dismissed.
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JUDGE rs