Karnataka High Court
N Naveen vs N Nagaraja Reddy on 15 November, 2012
Author: N.Ananda
Bench: N.Ananda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 15TH DAY OF NOVEMBER 2012
BEFORE
THE HON'BLE MR.JUSTICE N.ANANDA
M.F.A.NO.2762/2012 C/W. M.F.A.NOS.2764/2012 &
2766/2012
BETWEEN:
N NAVEEN
AGED ABOUT 37 YEARS
S/O SRI N NAGARAJA REDDY
RESIDING AT NO.202, "D" BLOCK
N.D.OLIVA, SOMASANDRAPALYA
AGRA POST, HSR, II EXTENSION
BANGALORE - 560 034.
.. APPELLANT
COMMON IN ALL CASES
(BY SRI C G GOPALASWAMY, ADV.)
AND:
1. N NAGARAJA REDDY
AGED ABOUT 57 YEAR
S/O P. NARASIMHA REDDY
RESIDING AT NO.290, 4TH MAIN
1ST BLOCK, KORAMANGALA
BANGALORE 560 034
2. SMT. N.UDAYA KUMARI
AGED ABOUT 53 YEARS
W/O SRI N.NAGARAJA REDDY
RESIDING AT NO.290, 4TH MAIN
1ST BLOCK, KORAMANGALA
BANGALORE 560 034
3. N. PRAMOD
AGED ABOUT 29 YEARS
S/O.SRI N.NAGARAJA REDDY
R/AT NO.437, MEENAKSHI APARTMENT
B BLOCK, NO.303, 27TH MAIN
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I SECTOR, HSR LAYOUT
BANGALORE - 560 102.
... RESPONDENTS
COMMON IN ALL CASES
(BY SRI KRISHNA NAIK, ADV. FOR R-2)
MFA NO.2762/2012 IS FILED U/O 43 RULE 1(r) OF
CPC AGAINST THE ORDER DT.18.02.2012 PASSED ON
I.A.NO.1 IN O.S.NO.8012/2009 ON THE FILE OF THE XXII
ADDITIONAL CITY CIVIL JUDGE, BANGALORE,
DISMISSING I.A.NO.1 FILED U/O 39 RULE 1 & 2 OF CPC,
FOR T.I.
MFA NO.2764/2012 IS FILED U/O 43 RULE 1(r) OF
CPC AGAINST THE ORDER DT.18.02.2012 PASSED ON
I.A.NO.2 IN OS..NO.8012/2009 ON THE FILE OF THE XXII
ADDITIONAL CITY CIVIL JUDGE, BANGALORE, ALLOWING
I.A.NO.2 FILED U/O 39 RULE 4 OF CPC, TO SET ASIDE
THE EXPARTE ORDER OF T.I.
MFA NO.2766/2012 IS FILED U/ORDER 43 RULE 1(r)
OF CPC AGAINST THE ORDER DATED 18.2.2012 PASSED
ON IA NO.6 IN O.S.NO.8012/2009 ON THE FILE OF XXII
ADDITIONAL CITY CVIIL JUDGE, BANGALORE, ALLOWING
IA NO.6 FILED U/ORDER 39 RULE 4 OF CPC FOR SETTING
ASIDE THE EXPARTE ORDER OF INJUNCTION GRANTED,
BY VACATING IT.
THESE APPEALS COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The plaintiff had sought for an order of temporary injunction restraining defendants 1 and 2 from alienating 'D' schedule properties. Defendant No.1 is the father and defendant No.2 is the mother of plaintiff and 3rd defendant.
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2. As per plaint averments, there was a
compromise decree between first defendant representing himself and plaintiff and third defendant represented by second defendant, their natural guardian, mother.
During the year 2002, there was a registered partition deed entered into between parties. According to first defendant, it was to confirm the oral partition that had taken place between first defendant and his brothers. It is the case of plaintiff that father of first defendant had taken 'D' schedule properties which were allotted to shares of plaintiff and third defendant in compromise entered into between parties in O.S.No.3945/1991 and defendants 1 and 2 are about to sell 'D' schedule properties. According to plaintiff, alienation of 'D' schedule properties during pendency of suit would lead to multiplicity of proceedings.
3. I have heard Sri C.G.Gopalaswamy, learned Counsel for appellant and Sri J.M.Rajanna Shetty, learned Counsel for first respondent.
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4. The parties have not disputed the compromise entered into between them in O.S.No.3945/1991. The plaintiff has disputed registered partition deed entered into between parties on 30.4.2002. According to plaintiff, certain properties which were allotted to shares of plaintiff and third defendant in compromise decree made in O.S.No.3945/1991 have been allotted to share of first defendant in partition deed dated 30.4.2002. Therefore, partition deed dated 30.4.2002 is partially void. The plaintiff has stated so, because he has alienated certain properties which had fallen to his share under registered partition deed dated 30.4.2002.
5. The learned trial Judge, on consideration of the contention put forth by plaintiff that registered partition deed dated 30.4.2002 is void to the extent of allocation of 'D' schedule properties to the share of first defendant and registered partition deed dated 30.4.2002 as it relates to division and allotment of properties to plaintiff and third defendant is valid, has held that plaintiff has not made out a prima facie case. The learned trial Judge has taken notice of conduct of third
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defendant, who in fact had filed written statement admitting registered partition deed dated 30.4.2002 and subsequently has made certain obligations to withdraw admissions made in written statement, detriment to interest of first defendant. In the circumstances, the learned trial Judge has held that plaintiff has failed to make out a prima facie case and rejected the application for grant of temporary injunction.
6. Sri C.G.Gopalaswamy, learned Counsel for plaintiff would submit that alienation of 'D' schedule properties would lead to multiplicity of proceedings. On the other hand, if an order of temporary injunction is granted restraining first defendant from alienating 'D' schedule property, it will not cause irreparable loss to defendants 1 and 2.
7. The learned Counsel for first respondent would justify the impugned order.
8. As could be seen from pleadings and documents relied upon by parties, plaintiff has acted upon registered partition deed dated 30.4.2002 by alienating
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certain properties which had fallen to his share. The plaintiff has termed registered partition deed dated 30.4.2002 as partially void, as certain properties which had been allotted to plaintiff in compromise decree made in O.S.No.3945/2991 have been subsequently allotted to share of first defendant under registered partition deed dated 30.4.2002. Whether first defendant had committed any fraud on plaintiff in bringing registered partition deed dated 30.4.2002 into existence, whether plaintiff is justified in partly accepting registered partition deed dated 30.4.2002 and terming the same as void to the extent of allotment of 'D' schedule properties to the share of first defendant are the questions to be considered on merits of case. In any event, the validity of transfer of 'D' schedule properties during the pendency of suit will be subject to result of suit, even if alienors are not impleaded as parties. Therefore, the apprehension of plaintiff that he would suffer irreparable loss cannot be accepted. The order of trial Court does not call for interference.
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9. In the result, I pass the following order:
The appeals are dismissed. The learned trial Judge shall decide the suit on merits within a period of one year from today. The learned trial Judge shall decide the suit on merits without being influenced by the orders made on I.A.Nos.1, 2 and 6. Both parties shall extend their co-operation for the time bound disposal of suit.
Sd/-
JUDGE nas.