Karnataka High Court
M/S. Valmark Estates Llp vs Smt. Marakka on 8 February, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:5411
MFA No. 2712 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 2712 OF 2021 (CPC)
BETWEEN:
1. M/S. VALMARK ESTATES LLP
(PREVIOUSLY KNOWN AS VALMARK
ESTATE PRIVATE LIMITED)
HAVING ITS OFFICE AT NO.133/1,
THE RESIDENCY, 10TH FLOOR,
RESIDENCY ROAD, BANGALORE-560 026,
REPRESENTED BY ITS AUTHORIZED SIGNATORY
SRI. PARAS TOLIA.
...APPELLANT
(BY SRI. RADHANANDAN B.S., ADVOCATE)
AND:
1. SMT. MARAKKA
D/O. LATE MUNISHAMI @ MUNISWAMAPPA,
Digitally signed
by SHARANYA T AGED ABOUT 70 YEARS,
Location: HIGH
COURT OF 2. SMT. MUNINARAYANAMMA
KARNATAKA
D/O. LATE MUNISHAMI @ MUNISWAMAPPA,
AGED ABOUT 65 YEARS,
BOTH ARE RESIDING AT 16TH WARD,
MADAGALAMMA TEMPLE STREET,
DEVANAHALLI TOWN,
BANGALORE RURAL DISTRICT.
3. SMT. DURGAMMA
W/O. LATE MUNIYAPPA,
AGED ABOUT 75 YEARS,
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NC: 2024:KHC:5411
MFA No. 2712 of 2021
4. SMT. GANGAMMA
D/O. LATE MUNIYAPPA,
AGED ABOUT 50 YEARS,
RESPONDENTS NO.3 AND 4 ARE
RESIDING AT RAYASANDRA VILLAGE
RESIDING AT RAYASANDRA VILLAGE,
KASABA HOBLI, DEVANAHALLI TALUK,
BANGALORE RURAL DISTRICT.
5. SMT. MUNIVANKATAMMA
D/O. LATE MUNIYAPPA,
AGED ABOUT 48 YEARS,
RESIDING AT GAMBEERANAHALLI
VILLAGE, HINDUPURA ROAD,
GOWRIBIDANUR TALUK,
CHIKKABALLAPURA DISRICT.
6. SMT. SUJATHA
D/O. LATE MUNIYAPPA,
AGED ABOUT 44 YEARS,
RESIDING AT BACHAHALLI VILLAGE,
HINDUPURA ROAD,
GOWRIBIDANUR TALUK,
CHIKKABALLAPURA DISRICT.
7. SRI. MUNISWAMY
S/O. LATE MARAPPA,
AGED ABOUT 45 YEARS,
8. SMT. MALAMMA
D/O. LATE HANUMANTHAPPA,
AGED ABOUT 57 YEARS,
9. SRI. MUNINAGAPPA
S/O. LATE HANUMANTHAPPA,
AGED ABOUT 57 YEARS,
10. SMT. MUNIYAMMA
D/O. LATE HANUMANTHAPPA,
AGED ABOUT 54 YEARS,
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NC: 2024:KHC:5411
MFA No. 2712 of 2021
11. SRI. MUNISWAMAPPA
S/O. LATE HANUMANTHAPPA,
AGED ABOUT 51 YEARS,
12. SRI. MUNIKRISHNA
S/O. LATE HANUMANTHAPPA,
AGED ABOUT 48 YEARS,
13. SRI. MUNIRAJU
S/O. LATE HANUMANTHAPPA,
AGED ABOUT 46 YEARS,
14. SMT. MANJULA
D/O. LATE CHIKKAMUNIYAPPA,
AGED ABOUT 32 YEARS,
15. SRI. MUNIRAJA
S/O. LATE CHIKKAMUNIYAPPA,
AGED ABOUT 26 YEARS,
16. SRI. MURALIDHARA
S/O. LATE CHIKKAMUNIYAPPA,
AGED ABOUT 24 YEARS,
RESPONDENTS No.7 TO 16 ARE
RESIDING AT RAYASANDRA VILLAGE
KASABA HOBLI, DEVANAHALLI TALUK
BANGALORE RURAL DISTRICT.
17. SRI. A. R. SATHISH
S/O. LATE A. C. RAMAPPA,
AGED ABOUT 58 YEARS,
RESIDING AT ATTIKODIGE,
BANDIGADI VILLAGE,
THEERTHAHALLI TALUK,
SHIVAMOGGA DISTRICT.
...RESPONDENTS
(BY SRI. NANJA REDDY P.N., ADVOCATE FOR R1 & R2;
NOTICE TO R3 TO R17 ARE DISPENSED WITH
VIDE ORDER DATED 09.07.2021)
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NC: 2024:KHC:5411
MFA No. 2712 of 2021
THIS MFA IS FILED U/O. 43 RULE 1(r) OF CPC, AGAINST
THE ORDER DATED. 03.03.2021, PASSED ON IA NO.1, IN O.S.
NO.978/2020, ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JMFC., DEVANAHALLI, ALLOWING THE IA NO.I FILED U/O.39
RULE 1 AND 2 OF CPC.
THIS APPEAL, COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellant and learned counsel for the respondent Nos.1 and 2.
2. This miscellaneous first appeal is filed by the defendant No.16 being aggrieved by the order passed by the Trial Court in allowing the application viz., I.A.No.I filed under Order 39, Rule 1 and 2 of C.P.C., wherein the Trial Court has granted the relief of temporary injunction not to alienate the suit schedule property in favour of third parties, till further orders.
3. The main contention of the learned counsel appearing for the appellant is that the learned Trial Judge has failed to consider that the schedule property was a granted land granted to Muniswamy, S/o. Doddamuniga, who was the father of Muniyappa. The learned Trial Judge failed to consider that after the death of Muniswamy, S/o. Doddamuniga, the -5- NC: 2024:KHC:5411 MFA No. 2712 of 2021 mutation was made out in the name of Muniyappa during the year 1983-84 and subsequently, the property was sold by wife and children of Muniyappa. The said fact has not been considered by the learned Trial Judge and recorded a wrong finding that the plaintiffs have made out a prima facie case.
4. Learned counsel also would vehemently contend that the claim of the plaintiffs that the grant was made to the benefit of the joint family is only a self-serving statement. It is contended that the nature of grant was a grant to a person, who belonged to a member of schedule caste. As per the terms of the grant, the schedule property was not cultivated by any member of the family of Muniswamy at any point of time and prior to the grant, it was granted to Muniswamy, S/o. Doddamuniga for cultivation from the date of issue of saguvali chit. Unlike grant of occupancy rights under the Karnataka Land Reforms Act or re-grant under the respective Inam Abolition Acts, there was no prior cultivation of the lands and it was the grant personally to the beneficiary of the grant as identified by the Government. Learned counsel would further contend that even as per the terms of the grant, there is no whisper that Muniswamy, S/o. Doddamuniga was a -6- NC: 2024:KHC:5411 MFA No. 2712 of 2021 member of the joint family or that it was granted for the benefit of joint family. Hence, the claim made by the plaintiffs is a false claim. Even otherwise, when the lands were acquired in the year 1956 and as per the applicable law, said Marakka was not a member of joint family and therefore, when the land was granted in the year 1956 to Munishami, S/o. Munishamappa, it was to the benefit of the joint family.
5. Learned counsel would vehemently contend that, earlier a suit was filed in O.S.No.265/2011 by one Muniswamy, S/o. late Marappa, wherein the respondent Nos.1 and 2 are defendant Nos.6 and 7 and defendant No.6-Marakka is represented through counsel and she was having the knowledge that sale was made in favour of defendant No.15 in the year 2013 and in the said suit, a compromise was entered into between defendant No.2 and plaintiffs and subsequently, the suit was withdrawn and when they had the knowledge about earlier suit filed by Muniswamy in the year 2011 itself, present suit is filed in the year 2020 claiming that the property is granted in favour of their father Muniswamy @ Munishamappa. It is contended that some person has sold the property, who was not having any right and claim is made in -7- NC: 2024:KHC:5411 MFA No. 2712 of 2021 respect of 2 acres of land granted in the year 1956. The counsel also would submit that subsequent to the sale made in favour of defendant No.15, present appellant had purchased the property from defendant No.15 and layout plan is also approved. When the appellant was preparing to sell the property, at that juncture, the present suit is filed. Hence, the Court has to take note of the conduct of the plaintiffs in approaching the Court. The learned counsel also would vehemently contend that the Trial Court committed an error in coming to the conclusion that, if property is alienated, it will cause prejudice to the right of the plaintiffs, since the plaintiffs are seeking the relief of partition and separate possession in respect of the property alleged to be granted in favour of their father and defendant No.1 is claiming right based on the grant made in favour of father-in-law of defendant No.1 and the matter requires trial and hence, prima facie, the observations made by the Trial Court is not correct and when the property was already sold long back and when the plaintiffs kept quiet for years, they cannot seek discretionary relief of temporary injunction.
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6. Learned counsel for the appellant/defendant No.16, in support of his argument, relied upon the judgment of this Court in RICHFIELD CONSTRUCTIONS PRIVATE LIMITED, SAROORNAGAR MANDAL, RANGA REDDY DISTRICT, ANDHRA PRADESH VS. SMT. RUKMANIAMMA AND OTHERS reported in 2010 SCC ONLINE KAR 5255, wherein this Court has made an observation that the undertaking given by the petitioner is just and equitable. It will safeguard the interest of the plaintiffs/respondents, as they will be entitled to get developed sites in lieu of their share in the agricultural land. In the layout map enclosed to the undertaking, contiguous sites bearing Nos.1, 2, 21 and 22 are agreed to be earmarked. The counsel referring this judgment would contend that this Court earlier protected the interest of the purchaser, who purchased the property and invested money for development after obtaining sanction from the concerned authority and approved plan is also placed before the Court. Hence, it is contended that the Trial Court ought not to have granted the relief in respect of entire land to the extent of 2 acres. The counsel also would submit that after approval, out of 2 acres, after deducting 50% of the property and amenities, -9- NC: 2024:KHC:5411 MFA No. 2712 of 2021 it comes to 1 acre in favour of approving authority and the said fact ought to have been taken note by the Trial Court. Hence, the order impugned requires to be set aside or modified and prays this Court to allow the appeal.
7. Per contra, learned counsel for the respondent Nos.1 and 2 submits that though the respondent Nos.1 and 2 are made as defendant Nos.6 and 7 in O.S.No.265/2011 and though in the order sheet, it is mentioned that defendant No.6 is represented along with other defendants, i.e., plaintiff No.1 before the Trial Court, she was never represented and given any power to any counsel and the said suit was also subsequently withdrawn. The learned counsel also brought to notice of this Court that, earlier, case was compromised between the defendant No.2 and the plaintiffs and thereafter, the same was withdrawn. The learned counsel would vehemently contend that when the plaintiffs are making claim that the property is allotted in favour of their father, sale deed obtained by a third person will not create any right and claim is made by the plaintiffs stating that they are having 1/4th share and the property which was granted is a joint family property. Hence, they are entitled for a share in the property and
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NC: 2024:KHC:5411 MFA No. 2712 of 2021 therefore, the Trial Court, having taken note of the claim made by the plaintiffs, protected the interest by granting the interim relief of temporary injunction not to alienate the property. Learned counsel also would submit that the suit was filed in 2020 and direction may be given to the Trial Court to dispose of the suit within a period of three months or six months and the interest of both the parties will be protected, if such a direction is given.
8. Having heard the learned counsel for the appellant and learned counsel for the respondent Nos.1 and 2 and also considering the grounds urged in the appeal and the principles laid down in the judgment of this Court relied upon by the learned counsel for the appellant, the point that would arise for consideration of this Court are:
(1) Whether the Trial Court has committed an error in granting an order of temporary injunction not to alienate the suit schedule property, till further orders and it requires interference of this Court?
Point No.(1)
9. Having heard the learned counsel for the appellant and also learned counsel for the respondent Nos.1 and 2, no
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NC: 2024:KHC:5411 MFA No. 2712 of 2021 dispute with regard to the fact that plaintiffs are the children of propositus of the family Munishami @ Muniswamappa. The suit is filed by Marakka and Muninarayanamma, who claim that they are grand-children of Doddamuniga @ Muniyappa. It is also the claim of the plaintiffs that grant was made in favour of their father Munishami @ Muniswamappa. The appellant/defendant No.16 is denying the said fact contending that grant was made in favour of the father-in-law of the defendant No.1 i.e., Muniswamappa and not in favour of the father of the plaintiffs. The appellant also disputes the relationship between the parties. The counsel has also placed the document of suit filed in O.S.No.265/2011, wherein earlier a suit is filed by the grand- son of Doddamuniga @ Maniyappa that he is having a second son by name Guddimunishami against the plaintiffs and defendants in respect of one of the item of the suit schedule property, including Sy.No.78. It is also not in dispute that earlier suit filed by said Munishami @ Muniswamappa was compromised between the defendant No.2 and the plaintiffs, wherein also the plaintiffs are parties as defendant Nos.6 and
7. It is the claim of the appellant that among defendant Nos.6 and 7, defendant No.6 is represented but, defendant No.7 is
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NC: 2024:KHC:5411 MFA No. 2712 of 2021 not represented and she was placed exparte and the defendant No.6 was having the knowledge of earlier suit filed in the year 2011 by one Munishami @ Muniswamappa. The counsel for the appellant also would vehemently contend that the present suit is filed in 2020. But, learned counsel for the respondent Nos.1 and 2/plaintiff Nos.1 and 2 disputes the fact that plaintiff No.1 never appeared and in the said suit and the plaintiff is not a party to the compromise or for the withdrawal on 04.07.2023 after filing the present suit.
10. Learned counsel for the appellant would also contend that when there is no dispute, learned counsel for the respondent Nos.1 and 2 claims that grant was made in 1956 in favour of father of the plaintiffs and defendants also claim right through defendant No.1 that grant was made in favour of father-in-law of defendant No.1, the same requires determination. There is a force in the contention of the learned counsel for the respondent Nos.1 and 2 that when there is no dispute with regard to the very grant, whether it is in favour of the father of the plaintiffs or in favour of the father-in-law of the defendant No.1 i.e., Muniswamappa is a matter of trial. Learned counsel for the appellant also contend that
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NC: 2024:KHC:5411 MFA No. 2712 of 2021 independent genealogical tree is produced before the Trial Court, showing the name of the father of the plaintiffs as Munishami @ Doddamuniga. When such claim is made, it is a matter of trial and at this juncture, this Court cannot decide the same.
11. Learned counsel for the appellant has also produced the saguvali chit in the name of Muniswamy and a saguvali chit in the name of Gundaliga i.e., the third son of original propositus Munishami @ Doddamuniga, entire order sheet, copy of the plaint and written statement in O.S.No.60/2010, copy of the entire order sheet, copy of the amended plaint, affidavit and copy of memo for withdrawal in O.S.No.265/2011. Having taken note of the said material, it is not in dispute that compromise was entered in O.S.No.265/2011 between defendant No.2 and plaintiffs and other defendants are not parties to the compromise and subsequent suit is withdrawn in 2023 after filing of the suit by the plaintiff Nos.1 and 2 in 2023 and matter requires trial whether the grant was made in favour of the father of the plaintiffs or in favour of the father-in-law of the defendant No.1 as claimed by the learned counsel for the appellant.
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12. However, learned counsel for the appellant brought to notice of this Court that claim is made in respect of only 2 acres of the land and brought to notice of this Court by producing the layout plan that sites are formed not only in respect of suit schedule property, but also in respect of other properties, totally to the extent of 19 acres and suit is filed in 2020 and whether the plaintiffs had the knowledge of earlier suit or whether they are represented or not is a matter of trial. Apart from that, the Court can protect the interest of the appellant also, since the appellant has invested money after purchase, and the property was earlier sold by defendant Nos.1 to 6 and sites are formed and some of the sites are sold. But, in order to protect the interest of the plaintiffs, it is appropriate to restrain the appellant herein not to alienate the property to the extent of 1/4th share as claimed by the plaintiffs, as the plaintiffs in the suit are claiming rights contending that the property belongs to the joint family and their share is to the extent of 1/4th share. Hence, it requires modification of the order of temporary injunction passed by the Trial Court and even if the plaintiffs succeed, they would get 1/4th share as
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NC: 2024:KHC:5411 MFA No. 2712 of 2021 claimed in the plaint. Hence, the order passed by the Trial Court at this juncture needs modification.
13. Learned counsel for the appellant would submit that the share of the plaintiffs would come to around 10,000 square feet and the said submission cannot be accepted, in view of layout being approved and out of 2 acres, the extent of property given to the appellant for sale in the particular survey number and out of that, 1/4th alleged claim of the plaintiff can be protected and hence, the learned counsel for the appellant is directed to file a memo to that effect stating how much property the appellant has got in terms of approved layout plan and earmark 1/4th sites in the said survey number. Learned counsel for the appellant to file memo within four days and give an undertaking that he will not alienate the said sites which have been described in the said memo and injunction is also sought in respect of those sites.
With these observations, the appeal is disposed of.
Sd/-
JUDGE ST List No.: 1 Sl No.: 26