Karnataka High Court
Sri. Narayanappa vs Smt. Lakshmamma on 6 December, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
MISCELLANEOUS FIRST APPEAL NO.5514/2016 (CPC)
C/W.
MISCELLANEOUS FIRST APPEAL NO.5780/2017 (CPC)
MISCELLANEOUS FIRST APPEAL NO.5781/2017 (CPC)
IN M.F.A.NO.5514/2016:
BETWEEN:
SRI NARAYANAPPA. A.,
AGED ABOUT 72 YEARS
S/O ANJINAPPA
HORAMAVU AGARA VILLAGE
K.R. PURAM HOBLI
HORAMAVU POST
BANGALORE-560 043. ... APPELLANT
[BY SRI VIGNESHWARA S. SHASTRY, SENIOR COUNSEL FOR
SRI GURURAJ R., ADVOCATE]
AND:
1. SMT. LAKSHMAMMA
AGED ABOUT 78 YEARS
W/O LATE SRI VENKATESHAPPA
2. SMT. NARAYANAMMA
AGED ABOUT 46 YEARS
3. SMT. ARUNA
AGED ABOUT 26 YEARS
2
4. SMT. VENKATALAKSHMI
AGED ABOUT 27 YEARS
SL.NO.2 TO 4 ARE WIFE AND
DAUGHTERS OF LATE NARAYANASWAMY
5. SRI. NAGESH
AGED ABOUT 48 YEARS
SINCE DECEASED BY HIS LRS
5(a) SMT. NAGAMMA
W/O LATE NAGESH
AGED ABOUT 45 YEARS
5(b) ASHA
D/O LATE NAGESH
AGED ABOUT 27 YEARS
5(c) VENKATESH
S/O LATE NAGESH
AGED ABOUT 25 YEARS
5(d) KUMAR
S/O LATE NAGESH
AGED ABOUT 24 YEARS
6. SRI. GOPAL
AGED ABOUT 44 YEARS,
7. SMT. SAMOANGAMMA
AGED ABOUT 43 YEARS,
8. SRI. APPAIAH
AGED ABOUT 41 YEARS,
SINCE DECEASED BY HIS LRS
3
8(a) SMT. KADIRAMMA
W/O LATE APPAIAH
AGED ABOUT 35 YEARS
8(b) JUM. NISHA A.
D/O LATE APPAIAH
AGED ABOUT 14 YEARS
8(c) VISH A. NALINAKSHI
S/O LATE APPAIAH
AGED ABOUT 15 YEARS
9. SMT. SARASWATHAMMA
AGED ABOUT 36 YEARS,
10 . SRI SHIVAPPA
AGED ABOUT 36 YEARS,
11 . SMT. GANGAMMA
AGED ABOUT 29 YEARS,
RESPONDENTS NO.5 TO 11 ARE CHILDREN
AND WIFE OF LATE VENKATESHAPPA
12 . SRI SRINIVASAPPA
AGED ABOUT 61 YEARS,
S/O LATE CHIKKA MUNISWAMAPPA
13 . SRI KRISHNAPPA
AGED ABOUT 45 YEARS,
S/O LATE CHIKKA MUNISWAMAPPA
14 . SRI MUNISWAMY
AGED ABOUT 38 YEARS,
15 . SMT. GANGAMMA
AGED ABOUT 35 YEARS,
4
16 . SRI. MURALI
AGED ABOUT 31 YEARS,
RESPONDENTS NO.14 TO 16 ARE
CHILDREN OF KRISHNAPPA,
17 . SRI. RAMACHANDRA
AGED ABOUT 45 YEARS,
18 . SRI. SURESH
AGED ABOUT 42 YEARS,
19 . SRI. KUPENDRA
AGED ABOUT 37 YEARS,
20 . SMT. SARASWATHI
AGED ABOUT 35 YEARS,
21 . SMT. SUNANDAMMA
AGED ABOUT 32 YEARS,
22 . SRI. PRAKASH
AGED ABOUT 29 YEARS,
23 . SRI. SHIVARAJ
AGED ABOUT 27 YEARS,
RESPONDENTS NO.17 TO 23 ARE
CHILDREN OF SRINIVASAPPA,
RESPONDENTS NO.1 TO 23 ARE
R/O. HORAMAVU AGARA VILLAGE,
K.R.PURAM HOBLI,
HORAMAVU POST,
BANGALORE-560 043.
5
24 . SMT. PRAMEELA
AGED ABOUT 37 YEARS,
W/O. A. VENKATESH,
NO.2510, 8TH CROSS,
KUVEMPU NAGAR,
DOORAVANI NAGAR POST,
BANGALORE-560 016.
25 . SMT. GEETHA
AGED ABOUT 37 YEARS,
D/O. SMT. MUNICHIKKAMMA,
R/O. HORAMAVU AGARA VILLAGE,
HORAMAVU POST,
BANGALORE-560 043.
(AMENDED VIDE COURT ORDER DATED 02.02.2024)
... RESPONDENTS
[BY SRI R.BHADRINATH, ADVOCATE FOR R1 TO R4,
R6, R7, R8(a) AND R9 TO R11;
R8(b & c) ARE MINORS REP. BY R8(a);
SRI M.SHIVARAJA, ADVOCATE FOR R17 AND R22;
VIDE ORDER DATED 07.10.2016,
NOTICE TO R12 TO R16, R18 TO R21,
R23 TO R25 ARE DISPENSED WITH;
SRI T.S.SHIVANNA, ADVOCATE FOR R5(a to d)]
THIS M.F.A. IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 01.07.2016 PASSED ON I.A.NO.1,
2 AND 6 IN O.S.NO.7448/2013 ON THE FILE OF THE 5TH
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU,
ALLOWING I.A.NO.1, 2 AND 6 FILED UNDER ORDER 39 RULES 1
AND 2 OF CPC AND ETC.
6
IN M.F.A.NO.5780/2017:
BETWEEN:
SRI. NARAYANAPPA
AGED ABOUT 72 YEARS,
S/O. ANJINAPPA,
HORAMAVU AGRAHARA VILLAGE,
K.R. PURAM HOBLI,
HORAMAVU POST,
BANGALORE-560 043. ... APPELLANT
[BY SRI. VIGNESHWARA S. SHASTRY, SENIOR COUNSEL FOR
SRI.GURURAJ R, ADVOCATE]
AND:
1. SMT. LAKSHMAMMA
AGED ABOUT 78 YEARS
W/O LATE SRI VENKATESHAPPA
2. SMT. NARAYANAMMA
AGED ABOUT 46 YEARS
3. SMT. ARUNA
AGED ABOUT 26 YEARS
4. SMT. VENKATALAKSHMI
AGED ABOUT 27 YEARS
SL.NO.2 TO 4 ARE WIFE AND
DAUGHTERS OF LATE NARAYANASWAMY
5. SRI. NAGESH
AGED ABOUT 48 YEARS
SINCE DECEASED BY HIS LRS
7
5(a) SMT. NAGAMMA
W/O LATE NAGESH
AGED ABOUT 45 YEARS
5(b) ASHA
D/O LATE NAGESH
AGED ABOUT 27 YEARS
5(c) VENKATESH
S/O LATE NAGESH
AGED ABOUT 25 YEARS
5(d) KUMAR
S/O LATE NAGESH
AGED ABOUT 24 YEARS
6. SRI. GOPAL
AGED ABOUT 44 YEARS,
7. SMT. SAMOANGAMMA
AGED ABOUT 43 YEARS,
8. SRI. APPAIAH
AGED ABOUT 41 YEARS,
SINCE DECEASED BY HIS LRS
8(a) SMT. KADIRAMMA
W/O LATE APPAIAH
AGED ABOUT 35 YEARS
8(b) JUM. NISHA A.
D/O LATE APPAIAH
AGED ABOUT 14 YEARS
8(c) VISH A. NALINAKSHI
S/O LATE APPAIAH
AGED ABOUT 15 YEARS
8
9. SMT. SARASWATHAMMA
AGED ABOUT 36 YEARS,
10 . SRI SHIVAPPA
AGED ABOUT 36 YEARS,
11 . SMT. GANGAMMA
AGED ABOUT 29 YEARS,
RESPONDENTS NO.5 TO 11 ARE CHILDREN
AND WIFE OF LATE VENKATESHAPPA
12 . SRI SRINIVASAPPA
AGED ABOUT 61 YEARS,
S/O LATE CHIKKA MUNISWAMAPPA
13 . SRI KRISHNAPPA
AGED ABOUT 45 YEARS,
S/O LATE CHIKKA MUNISWAMAPPA
14 . SRI MUNISWAMY
AGED ABOUT 38 YEARS,
15 . SMT. GANGAMMA
AGED ABOUT 35 YEARS,
16 . SRI. MURALI
AGED ABOUT 31 YEARS,
RESPONDENTS NO.14 TO 16 ARE
CHILDREN OF KRISHNAPPA,
17 . SRI. RAMACHANDRA
AGED ABOUT 45 YEARS,
18 . SRI. SURESH
AGED ABOUT 42 YEARS,
9
19 . SRI. KUPENDRA
AGED ABOUT 37 YEARS,
20 . SMT. SARASWATHI
AGED ABOUT 35 YEARS,
21 . SMT. SUNANDAMMA
AGED ABOUT 32 YEARS,
22 . SRI. PRAKASH
AGED ABOUT 29 YEARS,
23 . SRI. SHIVARAJ
AGED ABOUT 27 YEARS,
RESPONDENTS NO.17 TO 23 ARE
CHILDREN OF SRINIVASAPPA,
RESPONDENTS NO.1 TO 23 ARE
R/O. HORAMAVU AGARA VILLAGE,
K.R.PURAM HOBLI,
HORAMAVU POST,
BANGALORE-560 043.
24 . SMT. PRAMEELA
AGED ABOUT 37 YEARS,
W/O. A. VENKATESH,
NO.2510, 8TH CROSS,
KUVEMPU NAGAR,
DOORAVANI NAGAR POST,
BANGALORE-560 016.
25 . SMT. GEETHA
AGED ABOUT 37 YEARS,
D/O. SMT. MUNICHIKKAMMA,
R/O. HORAMAVU AGARA VILLAGE,
10
HORAMAVU POST,
BANGALORE-560 043.
(AMENDED VIDE COURT ORDER DATED 14.06.2022)
... RESPONDENTS
[BY SRI R.BHADRINATH, ADVOCATE FOR R1 TO R4,
R6, R7, R8(a to c) AND R9 TO R11;
VIDE ORDER DATED 15.09.2017,
SRI M.SHIVARAJA, ADVOCATE FOR R17 AND R22;
VIDE ORDER DATED 25.07.2017 IN M.F.A.No.5514/2016,
NOTICE TO R12 TO R16, R18 TO R21,
R23 TO R25 ARE DISPENSED WITH;
SRI T.S.SHIVANNA, ADVOCATE FOR R5(a to d)]
THIS M.F.A. IS FILED UNDER ORDER XLIII RULE 1(r) OF
CPC, AGAINST THE ORDER DATED 01.07.2016 PASSED ON
I.A.NO.II IN O.S.NO.7448/2013 ON THE FILE OF THE V
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT BANGALORE
CITY (CCH-13), ALLOWING THE I.A.NO.II FILED UNDER ORDER
XXXIX RULE 1 AND 2 R/W SECTION 151 OF CPC AND ETC.
IN M.F.A.NO.5781/2017:
BETWEEN:
SRI. NARAYANAPPA
AGED ABOUT 72 YEARS,
S/O. ANJINAPPA,
HORAMAVU AGRAHARA VILLAGE,
K.R. PURAM HOBLI,
HORAMAVU POST,
BANGALORE-560 043. ... APPELLANT
[BY SRI. VIGNESHWARA S. SHASTRY, SENIOR COUNSEL FOR
SRI GURURAJ R., ADVOCATE]
11
AND:
1. SMT. LAKSHMAMMA
AGED ABOUT 78 YEARS
W/O LATE SRI VENKATESHAPPA
2. SMT. NARAYANAMMA
AGED ABOUT 46 YEARS
3. SMT. ARUNA
AGED ABOUT 26 YEARS
4. SMT. VENKATALAKSHMI
AGED ABOUT 27 YEARS
SL.NO.2 TO 4 ARE WIFE AND
DAUGHTERS OF LATE NARAYANASWAMY
5. SRI. NAGESH
AGED ABOUT 48 YEARS
SINCE DECEASED BY HIS LRS
5(a) SMT.NAGAMMA
W/O LATE NAGESH
AGED ABOUT 45 YEARS
5(b) ASHA
D/O LATE NAGESH
AGED ABOUT 27 YEARS
5(c) VENKATESH
S/O LATE NAGESH
AGED ABOUT 25 YEARS
5(d) KUMAR
S/O LATE NAGESH
AGED ABOUT 24 YEARS
12
6. SRI. GOPAL
AGED ABOUT 44 YEARS,
7. SMT. SAMOANGAMMA
AGED ABOUT 43 YEARS,
8. SRI. APPAIAH
AGED ABOUT 41 YEARS,
SINCE DECEASED BY HIS LRS
8(a) SMT. KADIRAMMA
W/O LATE APPAIAH
AGED ABOUT 35 YEARS
8(b) JUM. NISHA A.
D/O LATE APPAIAH
AGED ABOUT 14 YEARS
8(c) VISH A. NALINAKSHI
S/O LATE APPAIAH
AGED ABOUT 15 YEARS
9. SMT. SARASWATHAMMA
AGED ABOUT 36 YEARS,
10 . SRI SHIVAPPA
AGED ABOUT 36 YEARS,
11 . SMT. GANGAMMA
AGED ABOUT 29 YEARS,
RESPONDENTS NO.5 TO 11 ARE CHILDREN
AND WIFE OF LATE VENKATESHAPPA
12 . SRI SRINIVASAPPA
AGED ABOUT 61 YEARS,
13
S/O LATE CHIKKA MUNISWAMAPPA
13 . SRI KRISHNAPPA
AGED ABOUT 45 YEARS,
S/O LATE CHIKKA MUNISWAMAPPA
14 . SRI MUNISWAMY
AGED ABOUT 38 YEARS,
15 . SMT. GANGAMMA
AGED ABOUT 35 YEARS,
16 . SRI. MURALI
AGED ABOUT 31 YEARS,
RESPONDENTS NO.14 TO 16 ARE
CHILDREN OF KRISHNAPPA,
17 . SRI. RAMACHANDRA
AGED ABOUT 45 YEARS,
18 . SRI. SURESH
AGED ABOUT 42 YEARS,
19 . SRI. KUPENDRA
AGED ABOUT 37 YEARS,
20 . SMT. SARASWATHI
AGED ABOUT 35 YEARS,
21 . SMT. SUNANDAMMA
AGED ABOUT 32 YEARS,
22 . SRI. PRAKASH
AGED ABOUT 29 YEARS,
14
23 . SRI. SHIVARAJ
AGED ABOUT 27 YEARS,
RESPONDENTS NO.17 TO 23 ARE
CHILDREN OF SRINIVASAPPA,
RESPONDENTS NO.1 TO 23 ARE
R/O. HORAMAVU AGARA VILLAGE,
K.R.PURAM HOBLI,
HORAMAVU POST,
BANGALORE-560 043.
24 . SMT. PRAMEELA
AGED ABOUT 37 YEARS,
W/O. A. VENKATESH,
NO.2510, 8TH CROSS,
KUVEMPU NAGAR,
DOORAVANI NAGAR POST,
BANGALORE-560 016.
25 . SMT. GEETHA
AGED ABOUT 37 YEARS,
D/O. SMT. MUNICHIKKAMMA,
R/O. HORAMAVU AGARA VILLAGE,
HORAMAVU POST,
BANGALORE-560 043.
(AMENDED VIDE COURT ORDER DATED 14.06.2022)
... RESPONDENTS
[BY SRI R.BHADRINATH, ADVOCATE FOR R1 TO R4,
R6, R7, R8(a to c);
SRI M.SHIVARAJA, ADVOCATE FOR R17 AND R22;
VIDE ORDER DATED 25.07.2017 IN M.F.A.No.5514/2016,
NOTICE TO R12 TO R16, R18 TO R21,
R23 TO R25 ARE DISPENSED WITH]
15
THIS M.F.A. IS FILED UNDER ORDER XLIII RULE 1(r) OF
CPC, AGAINST THE ORDER DATED 01.07.2016 PASSED ON
I.A.NO.VI IN O.S.NO.7448/2013 ON THE FILE OF THE V
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT BANGALORE
CITY (CCH-13), ALLOWING THE I.A.NO.VI FILED UNDER ORDER
XXXIX RULE 1 R/W SECTION 151 OF CPC AND ETC.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 27.11.2024 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
CAV JUDGMENT
These appeals are filed challenging the common order dated 01.07.2016 passed on I.A.Nos.1, 2 and 6 in O.S.No.7448/2013 questioning allowing of those IAs restraining by way of an order of temporary injunction from alienating or creating charge over the suit schedule property till the disposal of the suit and also directing to maintain status quo in respect of item No.1 of the suit schedule property and the plaintiffs and defendant Nos.1 to 5, 14 and 15 are directed to maintain status quo in respect of item Nos.1 to 3 of the suit schedule properties from changing the nature of the suit pending disposal of the suit.
2. The plaintiffs have filed the suit against the defendants seeking the relief of declaration to declare that the 16 plaintiffs are entitled to 1/5th share in the suit schedule properties and that the plaintiffs are in physical possession of the same and declare that two confirmation deeds dated 09.01.2013 in respect of suit schedule properties are not binding on the plaintiffs. While claiming such reliefs it is contended that plaintiff No.1 is the wife of one late Venkateshappa and she is the mother of plaintiff Nos.5 to 11 and plaintiff Nos.2 to 4 are the wife and children of one late Narayanaswamy who is the elder son of late Venkateshappa and plaintiff No.1-Smt. Lakshmamma and defendant Nos.1 and 2 are the uncles of plaintiff Nos.5 to 11 and defendant Nos.6 to 8 and defendant No.14 is one of the grand daughter of late Venkateshappa and defendant Nos.9 to 13 are the children of defendant No.1 and cousin brothers and sisters of plaintiff Nos.5 to 11. In order to substantiate the same, genealogical tree also produced.
3. It is the contention of the plaintiffs that the properties bearing old Sy.No.52/3, new Sy.No.52/3B measuring to an extent of 35 guntas including 2 guntas of kharab, new Sy.No.52/3A1 measuring to an extent of 1 acre 9 guntas and 11 17 guntas of kharab, new Sy.No.52/3A2 measuring to an extent of 1 acre 24 guntas and 1 gunta kharab situated at Horamavu Agara village, K R Puram hobli, Bangalore East Taluk, Bangalore are the ancestral and joint family properties of the plaintiffs and defendant Nos.1 to 14. The said properties were in the name of Chikka Muniswamappa who is the propositus of the family. During the lifetime of said Chikka Muniswamappa, he was in peaceful possession and enjoyment of the suit schedule property and cultivating the same personally and he died on 11.02.1978 leaving behind his wife and children to succeed his estate. After his death, the property was continued with his wife and children as they are the absolute owners in possession of the same by mutating the revenue entries in their names. Hence, they are entitled for share in the suit schedule properties.
4. It is contended that the plaintiffs and defendant No.14 have filed a suit in O.S.No.25993/2008 against other defendants for partition and separate possession in respect of two items of the suit schedule properties and in the said suit, on advise of the counsel for the plaintiffs, the parties have agreed 18 to withdraw the suit by filing a memo as not pressed as settled out of the Court.
5. It is contended that the counsel who appeared on behalf of the plaintiffs has advised that the confirmation deed has to be executed in respect of the suit schedule properties in the name of defendant No.15 and the counsel misguided the plaintiffs wherein he has included Sy.No.52/3B intentionally by misleading them which is not concerned to that suit including the suit schedule properties. In fact, the plaintiffs are illiterates and they don't know the worldly knowledge, by taking the undue advantage of the plaintiffs, the counsel has created, forged and fabricated the said confirmation deeds by colluding with defendant No.15 and when the plaintiffs have approached the counsel and questioned with regard to creation of the documents, he did not respond properly. Hence, filed a suit claiming that the said confirmation deeds are not binding on them.
6. The plaintiffs are also sought for an order of injunction in terms of I.A.Nos.1 and 2 restrained by way of an 19 ad-interim temporary injunction from alienating or creating charge over the suit schedule property and defendant No.11 also filed I.A.No.6 wherein sought the relief against the plaintiffs and defendant Nos.1 to 5, 14 and 15 restraining them from putting up of any compound wall or changing nature of the property. I.A.Nos.2 and 6 was allowed directing them to maintain status quo and in I.A.No.1, a restrained order was passed not to alienate or crate charge over the suit schedule property.
7. Defendant No.15 who had filed these appeals challenging the orders in the written statement and objections contended that the very suit itself is not maintainable since earlier suit filed by them in O.S.No.25993/2008 was got withdrawn after executing the confirmation deed. The portion allotted to Venkateshappa was sold to this defendant under a registered sale deed dated 26.12.1980 and late Chandrappa who is another son of Chikka Muniswamappa who was the owner of portion of the suit schedule item No.3 which was acquired under the partition, has sold the same in favour of this defendant under a registered sale deed dated 15.04.1989 and once they 20 withdrew the suit, they cannot maintain one more suit seeking the same relief. As such there is no fraud or misrepresentation as claimed by the plaintiffs. The plaintiffs have no legal right to claim partition.
8. Defendant No.11 also filed the written statement denying the very execution of the confirmation deed and contend that plaintiffs have played fraud behind the back of this defendant and executed the said confirmation deed without taking his consent at the time of execution of the confirmation deed. This defendant's father Srinivasappa is a habitual drunker and defendant No.15 has brain washed him and appointed the advocate for him and obtained his signature without the contents being known to him. Defendant Nos.9 and 10 have also filed the written statement claiming the share in the suit schedule property and denied the very execution of the confirmation deed. The said written statements filed by them were treated as objections to the said IAs.
9. The Trial Court having taken note of the pleadings of the parties framed the following points:
21
1. Whether the plaintiffs have made out a prima facie case?
2. Whether the balance of convenience lies in their favour?
3. Whether irreparable loss and injury would be caused to plaintiffs if an order of temporary injunction is refused?
4. Whether the application I.A.No.6 filed by the defendant No.11 deserves to be allowed?
5. What order?
10. The Trial Court after considering both oral and documentary evidence placed on record answered the said points as affirmative in coming to the conclusion that the very contention of the plaintiffs that by playing fraud on the plaintiffs, got the confirmation deed and also filed the memo for withdrawal of the suit. They are illiterate and taking undue advantage of the same, a memo was filed and the same is not binding on them. It is also contended that they have not given any authorization to withdraw the suit. Defendant No.6 is not the absolute owner in respect of the property referred in the confirmation deed and the confirmation deed is not executed by free will of the plaintiffs. The Trial Court comes to the conclusion 22 that with regard to the relief as sought for declaration is concerned, it requires full fledged trial. The Court cannot embark on mini trial expressing any opinion at the stage of consideration of the applications. It is also comes to the conclusion that when the plaintiffs contend that they have not consent to withdraw the suit, the matter to be considered. The plaintiffs have assailed the confirmation deeds dated 09.01.2013 and 28.02.2012 and the Trial Court comes to the conclusion that the plaintiffs have made out a prima facie case and it is appropriate to restrain the defendants from alienating or creating charge over the suit schedule properties. With regard to the other prayers are concerned, it is appropriate to direct them to maintain status quo in constructing any compound wall taking electricity connection and from alienating or changing the nature of the property. Being aggrieved by these orders, the appellant who is defendant No.15 had filed the present appeals.
11. The learned counsel for the appellant would vehemently contend that no dispute with regard to the nature of the property is concerned in respect of item No.1 bearing 23 Sy.No.52/3B to an extent of 35 guntas which is converted land; Sy.No.52/3A1 to an extent of 1 acre 9 guntas including 11 guntas of kharab and item No.3 in Sy.No.52/3A2 to an extent of 1 acre 24 guntas including one gunta of kharab. The counsel also would vehemently contend that the plaintiffs and defendant Nos.1 to 14 have contended that the suit schedule properties are the ancestral and joint family properties. The counsel also would vehemently contend that the suit was filed earlier in O.S.No.25993/2008 in respect of item Nos.2 and 3 for the relief of partition, the same was withdrawn after executing the confirmation deed in favour of the appellant herein since there was a sale deed in respect of Sy.No.52/3B dated 26.12.1980 executed by the first son of propositus Chikka Muniswamappa and item No.3 also sold by 2nd and 4th son on 10.07.1999. Before withdrawing the suit, an amount of Rs.17 lakh was paid on 09.01.2013 while executing the confirmation deed on 09.01.2013 and withdrawn the suit on 10.01.2013.
12. The learned counsel for the appellant also would vehemently contend that the present suit is a second suit and 24 they cannot maintain one more suit for the same relief of partition when once they have filed a suit and the same was withdrawn. The counsel also would vehemently contend that though an allegation is made against the earlier advocate stating that he had played fraud and created the documents, no case is filed against the said advocate. The counsel would vehemently contend that fresh suit is filed without leave of the Court. The counsel also would vehemently contend that bank statement for having paid the amount was filed before the Court. The counsel would vehemently contend that though the plaintiffs have alleged fraud, no particulars are given as mandated while filing the suit. The counsel also would vehemently contend that while filing the subsequent suit, added one more property. The counsel also in his arguments would vehemently contend that when the earlier suit is filed for only item Nos.2 and 3, it will press into service under Order II Rule 2 of CPC. Hence, the suit itself is not maintainable. The counsel would vehemently contend that the plaintiffs have not come to the Court with clean hands. Hence, the Trial Court committed an error in exercising the discretion granting the relief of temporary injunction. 25
13. The counsel for the appellant in support of his arguments relied upon the judgment reported in (1994) 1 SCC 1 in the case of S P CHENGALVARAYA NAIDU (DEAD) BY LRS vs JAGANNATH (DEAD) BY LRS AND OTHERS and referring this judgment brought to notice of this Court regarding the word fraud avoids all judicial acts, ecclesiastical or temporal and also held that the judgment and decree obtained by playing fraud on the Court is a nullity and non est in the eyes of law and the Court has to take note of fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage and brought to notice of this Court discussed made in paragraph 6 and no such circumstances is warranted in the case on hand since after receiving an amount only executed the confirmation deed and got withdrawn the suit.
14. The counsel also relied upon the judgment reported in (2006) 8 SCC 367 in the case of M GURUDAS AND OTHERS vs RASARANJAN AND OTHERS and brought to 26 notice of this Court paragraph 21 wherein discussion was made with regard to granting of an order of injunction the Court would consider the question with regard to the balance of convenience and prima facie case and irreparable injury which might be suffered by the plaintiffs if the prayer for injunction is to be refused. The contention of the plaintiffs must be bonafide. The question sought to be tried must be a serious question and not only a mere triable issue.
15. The counsel also relied upon the judgment reported in (2013) 1 SCC 625 in the case of VIRGO INDUSTRIES (ENG.) PRIVATE LIMITED vs VENTURETECH SOLUTIONS PRIVATE LIMITED and referring this judgment brought to notice of this Court discussion made under Order II Rule 2 of CPC omission to claim one out of many relief's that could have been claimed in suit, bar of raising same in subsequent suit. The counsel referring this judgment would vehemently contend that in the subsequent suit including the other property and suit itself is not maintainable invoking Order II Rule 2 of CPC. 27
16. Per contra, the learned counsel for the respondents would vehemently contend that the first suit is only in respect of two items of the suit schedule properties. Item No.1 is not the subject matter in the earlier suit. The counsel would vehemently contend that specific allegation is made about the fraud against the advocate who represented the plaintiffs in the earlier suit. The counsel also would vehemently contend that complaint was given against the advocate and the same is pending for consideration. The counsel also would vehemently contend that in paragraphs 8 to 11, specific averments are made with regard to the fraud is concerned and also the properties and withdrawal of the memo and execution of the confirmation deed. It is specifically pleaded with regard to misguidance and misrepresentation made before the Court on behalf of the plaintiffs while filing the memo for withdrawal when no such authorisation was given to the counsel. The counsel also would vehemently contend that case is already set down for cross- examination of PW1 and evidence is already been commenced and the suit is of the year 2013 and a decade has been elapsed and the Trial Court also passed an order to maintain status quo 28 and if the same is continued, it will not harm the appellant/defendant No.15 and the matter is going to be disposed of at the earliest. Hence, it does not requires any interference of this Court.
17. The counsel for the respondents in support of arguments relied upon the judgment reported in ILR 2014 KAR 6025 in the case of SMT. SHAKUNTHALAMMA AND OTHERS vs SMT. KANTHAMMA AND OTHERS and brought to notice of this Court operative portion the correct legal position as is clear from the statutory provisions invoking the jurisdiction for seeking the temporary injunction by the defendant and also made an observation that the defendant cannot maintain an application for the said reliefs in a suit filed by the plaintiff, irrespective of the fact that his right to such relief arises either from the same cause of action or a cause of action that arises subsequent to filing of the suit. However, it is open to the defendant to maintain a separate suit against he plaintiff and seek relief provided under Order 29 Rule 1(b) and (c) of the Code. The counsel referring this judgment would vehemently 29 contend that prayer is sought for restraining the plaintiffs as well as the defendants and not excluded the plaintiffs.
18. Having heard the learned counsel appearing for the respective parties and also the principles laid down in the judgments referred supra, the points that would arise for the consideration of this Court are:
1. Whether the Trial Court committed an error in allowing I.A.Nos.1, 2 and 6 in granting the relief of temporary injunction and ordering for maintaining status quo till the disposal of the suit?
2. What order?
Point No.1
19. Having heard the learned counsel appearing for the respective parties and also on perusal of the material available on record, it is not in dispute that the property originally belongs to Chikka Muniswamappa. It is also not in dispute that the plaintiffs and defendant Nos.1 to 14 claims that they are the legal heirs of Chikka Muniswamappa. The relationship between the parties are also explained in the suit. It is also important to 30 note that the first son of the said Chikka Muniswamappa is Venkateshappa and plaintiff No.1 is the wife of said Venkateshappa. Since, Venkateshappa deceased, the plaintiffs are the legal heirs of said Venkateshappa and plaintiff No.1 - Lakshmamma. Defendant Nos.2 to 5 are the branches of another son of Chikka Muniswamappa that is four sons. Defendant No.14 is the grand daughter of other daughter Munichickamma of Chikka Muniswamappa. Defendant No.1 is the second son of Chikka Muniswamappa and 4th son has been arrayed as defendant No.2. It is the contention of the appellant that portion allotted to Venkateshappa, under whom the plaintiffs were claiming share was sold to the appellant under a registered sale deed dated 26.12.1980. It is also important to note that 3rd son Chandrappa who was the owner of the portion of item No.3 of the suit schedule property which was acquired by him under the partition also sold the said property to the appellant under a registered sale deed dated 15.04.1989. It is also not in dispute that plaintiffs and defendant No.14 have filed a suit in O.S.No.25993/2008 against other defendants for partition and separate possession in respect of two items of the 31 suit schedule properties. It is also not in dispute that confirmation deed was also executed on 09.01.2013 and thereafter, the plaintiffs and defendant No.14 have withdrawn the earlier suit filed in O.S.No.25993/2008 as not pressed as settled out of the Court.
20. The main contention of the plaintiffs that deed of confirmation was obtained fraudulently by his advocate and allegation made against the advocate who represented them and also against the appellant who has arrayed as defendant No.15 in the present suit. It is also contention of the plaintiffs that they have not given any authorisation to file a such memo before the Trial Court. The order sheet also placed before this Court and so also memo filed before the Trial Court also placed before this Court. On perusal of the memo it discloses that not only advocate had signed the memo and parties have also signed the said memo wherein prayer is sought to dismiss the suit as not pressed as settled out of the Court in view of the confirmation deed executed by the plaintiffs and details of confirmation deed also mentioned that same was registered in 32 the Sub-Registrar Office, Basavanagudi and they confirmed that defendant No.6 is the absolute owner in respect of the properties referred in the confirmation deed who is the defendant No.15 in the present suit. The copy of the confirmation deed also produced before the Court along with the appeal. Hence, no dispute with regard to the execution of the confirmation deed. But the plaintiffs contend that the same is obtained fraudulently by the counsel on record. Having perused the memo as well as the confirmation deed, it discloses that all of them have signed to those documents.
21. It is also important to note that when all of them are parties to the memo as well as the confirmation deed, the very contention taken in the plaint that it was obtained by fraud by forging and creating the document cannot be accepted since they have not denied their signature available on the memo as well as confirmation deed. The only allegation made against the advocate that they were advised to execute the confirmation deed and file a memo. It has to be noted that suit was filed in the year 2008 and memo was filed in the year 2013. It is also 33 important to note that confirmation deed was executed on 09.01.2013 and it is important to note that memo was filed on the very next date i.e., 10.01.2013 and all of them have signed the said memo and got withdrawn the suit. Admittedly, the present suit is a second suit for the relief of partition and earlier suit also filed for the same relief. The Court has to take note of the material available on record. The Trial Court also erroneously comes to the conclusion that a prima facie case is made out by the plaintiffs but fails to take note of registered document of confirmation deed. But the fact that earlier sale deed was executed in the year 1980 by the father Venkateshappa as well as other sale deed was executed by other son i.e., 3rd son - Chandrappa in the year 1989 and subsequently, suit is filed for the relief of partition and having received the amount, confirmation deed was executed and Annexure-H is also placed before the Court for having received the amount. These are the materials placed by the appellant/defendant No.15 before the Court to show that he had obtained the sale deeds in the year 1980 and 1989 and subsequently, the legal heirs who have sold the property have executed the confirmation deed on 34 09.01.2013 and immediately present suit is filed making an allegation of fraud. All these documents clearly discloses that parties have agitated the matter from 2008 to 2013 and then, got settled the matter. The memo also discloses the fact that they have settled the matter and even details of execution of the confirmation deed is also mentioned in the document itself. It is the contention of the appellant's counsel that no complaint was given against the advocate. The respondents' counsel would contend that complaint was given and the same is pending.
22. It is not in dispute that the transaction is of the year 2013 and the allegation of the fraud is also of the year 2013 when the memo was filed and compromised the matter. When material available before the Court are sufficient to show that earlier two sale deeds were executed and subsequently, the very legal heirs of those persons have executed the confirmation deed and Trial Court ought not to have granted the relief of temporary injunction as sought by the plaintiffs as well as defendant No.11. Defendant No.11 is the son of the Chikka Muniswamappa. No doubt, the principles laid down in the judgments referred supra 35 wherein it is held that in a suit for partition, subsequent suit, included other property, Order II Rule 2 of CPC pressed into service as contended by the counsel for the appellant and also with regard to the fraud is concerned, judgment of the Apex Court is very clear that there must be a deception. In the case on hand, I have already pointed out that all the parties have signed the memo as well as the confirmation deed. When such being the material available on record, the plaintiffs cannot file a second suit and contend that it was obtained by playing fraud since the appellant has produced the documents for having paid the amount and got the confirmation deed and all of them are parties in the confirmation deed. These are the materials on which the Trial Court lost sight while granting the relief of temporary injunction from alienating or creating charge over the property and discretion must be exercised judiciously. Hence, the order of the Trial Court is perverse since the Trial Court failed to consider these documents and payment details as well as memo filed before the Court and that memo is also filed on the very next date of execution of the confirmation deed. Fraud and misrepresentation has to be proved before the Court. Hence, 36 the Trial Court committed an error in granting such a relief since the property was purchased by defendant No.15 long back in the year 1980 and 1989 and after filing of suit in 2008, got the confirmation deed in the year 2013. Hence, it requires interference of this Court setting aside the order of the Trial Court. Accordingly, I answer the above point as affirmative. Point No.2
23. In view of the discussions made above, I pass the following:
ORDER The miscellaneous first appeals are allowed. The impugned order dated 01.07.2016 passed on I.A.Nos.1, 2 and 6 in O.S.No.7448/2013 is set aside and consequently, I.A.Nos.1, 2 and 6 are dismissed.
Sd/-
(H.P. SANDESH) JUDGE SN