Karnataka High Court
Sri .Chandra Reddy vs Smt. Sarojamma on 7 August, 2018
Author: S G Pandit
Bench: S.G.Pandit
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 07TH DAY OF AUGUST 2018
BEFORE
THE HON'BLE MR.JUSTICE S.G.PANDIT
M.F.A.No.2588/2016(CPC)
BETWEEN:
1. SRI .CHANDRA REDDY
S/O. LATE RAMAIAH REDDY,
AGED ABOUT 53 YEARS,
RESIDING AT DODDANAGAMANGALA VILLAGE,
BEGUR HOBLI, ELECTRONIC CITY POST,
BANGALORE-560 100.
2. SRI. SHAMANNA REDDY
S/O. LATE RAMAIAH REDDY,
AGED ABOUT 51 YEARS,
RESIDING AT MUNEKOLALU VILLAGE,
MARTHAHALLI POST,
BANGALORE-560 037.
3. SRI. SURESH
S/O. LATE MUNIRAJU REDDY,
AGED ABOUT 40 YEARS,
RESIDING AT DODDANAGAMANGALA VILLAGE,
BEGUR HOBLI, ELECTRONIC CITY POST,
BANGALORE-560 100.
4. SRI. AMBARISH
S/O. LATE MUNIRAJU REDDY,
AGED ABOUT 36 YEARS,
RESIDING AT DODDANAGAMANGALA VILLAGE,
BEGUR HOBLI, ELECTRONIC CITY POST,
BANGALORE-560 100.
2
5. SMT. NANJAMMA
D/O. LATE MUNI REDDY,
AGED ABOUT 57 YEARS,
RESIDING AT DO. NO. 109,
GAREBHAVI PALYA,
BOMMANAHALLI POST,
BEGUR HOBLI, HOSUR MAIN ROAD,
NEAR ANJANEYA TEMPLE,
BANGALORE-560 068. ...APPELLANTS
(BY SRI.Y.K.NARAYANA SHARMA AND SRI.K.P.BHUVAN,
ADVOCATES)
AND:
01. SMT. SAROJAMMA
W/O. SRI. CHINNAPPA REDDY,
AGED ABOUT 72 YEARS,
RESIDING AT NO. 373/2, 1ST CROSS,
BEHIND SANDY TOURING TAKIES,
VENKATESHWARA LAYOUT,
MADIVALA, BANGALORE-560 035.
02. SMT. NAGARATHNAMMA
W/O. LATE VENKATASWAMY REDDY,
AGED ABOUT 66 YEARS,
03. SRI. NARAYANA REDDY
S/O. LATE VENKATASWAMY REDDY,
AGED ABOUT 48 YEARS,
04. SMT. MANJULA
D/O. LATE ANJANA REDDY,
AGED ABOUT 37 YEARS,
3
DEFENDANT NO.2 TO 4 ARE
RESIDING AT MUNEKOLALU VILLAGE,
MARTHAHALLI POST, BANGALORE-560 035.
05. SMT. NANDA
D/O. LATE ANJANA REDDY,
AGED ABOUT 35 YEARS,
RESIDING AT DODDANAGAMANGALA VILLAGE,
BEGUR HOBLI, ELECTRONIC CITY POST,
BANGALORE-560 100.
SRI.NANJA REDDY
S/O. LATE THIMMA REDDY
SINCE DEAD BY HIS L.RS.
06. SMT. KANTHAMMA,
W/O. LATE NANJAREDDY,
AGED ABOUT 57 YEARS,
RESIDING AT NO.520,
4TH CROSS, HOSA ROAD,
OPPOSITE MADHURA GARMENTS,
CHANNAKESHAVA NAGARA,
ELECTRONIC CITY POST,
BANGALORE SOUTH TALUK,
BANGALORE-560 100.
07. SRI. GOPALA REDDY
S/O. LATE THIMMA REDDY,
AGED ABOUT 67 YEARS,
RESIDING AT 5TH CROSS,
MUNI REDDY LAYOUT,
KOTHANUR DINNE VILLAGE,
BANGALORE-560 076.
08. SRI. ANANDA REDDY
S/O.LATE THIMMA REDDY,
4
AGED ABOUT 47 YEARS,
RESIDING AT DODDANAGAMANGALA VILLAGE,
BEGUR HOBLI, ELECTRONIC CITY POST,
BANGALORE-560 100.
09. SMT. SUNANDAMMA
W/O. LATE CHINNAPPA REDDY,
AGED ABOUT 64 YEARS,
RESIDING AT DODDANAGAMANAGALA VILLAGE,
BEGUR HOBLI, ELECTRONIC CITY POST,
BANGALORE-560 100.
10. SMT. RADHAMMA
W/O. SRI. SRINIVASA REDDY,
AGED ABOUT 62 YEARS,
RESIDING AT NOOSANUR VILLAGE,
JIGANI HOBLI,
ANEKAL TALUK-562 106.
11. SMT. KOMALA
W/O. SRI. KESHAVA REDDY,
AGED ABOUT 47 YEARS,
RESIDING AT NO.168/1,
V CROSS, NEAR YALLAMMA TEMPLE,
KOTHANUR, JP NAGAR, VIII PHASE,
BANGALORE-560 078.
12. SMT. SAVITHA REDDY
W/O. NARAYANA REDDY,
AGED ABOUT 43 YEARS,
RESIDING AT DODDAKANNALLI VILLAGE,
KARLERAM POST, SARJAPURA ROAD,
BANGALORE-560 035.
13. SRI. ANAND KUMAR
5
S/O. KUPPUSWAMY NAIDU,
AGED ABOUT 63 YEARS,
RESIDING AT NO.193, UDANI LAYOUT,
ULSOOR, BANGALORE-560 008.
14. SRI. D.C. RAJAREDDY
S/O. SRI. CHINNAPPA REDDY,
AGED ABOUT 47 YEARS,
RESIDING AT DODDANAGAMANGALA VILLAGE,
BEGUR HOBLI,
ELECTRONIC CITY POST,
BANGALORE-560 100.
15. SRI. MASTER HARSHA
S/O. M. RAMESH,
AGED ABOUT 20 YEARS,
RESIDING AT GUDURUPALLI VILLAGE,
MARIMAKKULA POST,
PENUGONDA MANDAL,
ANDHRA PRADESH-517 247.
16. SRI. C.Y. NARAYANAPPA
S/O. LATE YELLAPPA REDDY,
AGED ABOUT 61 YEARS,
RESIDING AT BOMMANAHALLI VILLAGE,
BEGUR HOBLI,
BANGALORE-560 068.
17. SRI. K.V. JOSEPH
S/O. LATE VARKI,
AGED ABOUT 64 YEARS,
18. SMT. MARIAM JOSEPH
W/O. K.V. JOSEPH,
AGED ABOUT 64 YEARS,
6
RESPONDENT NO.17 AND 18
BOTH ARE R/AT NO. 802,
TULASI THEATER ROAD,
MARATHALLI POST,
BANGALORE-560 037.
19. SMT. B.V. LAKSHMAMMA
W/O. LATE B.G. REDDY,
AGED ABOUT 77 YEARS,
RESIDING AT NAGANTHAPURA,
MAHADEVA BUILDING, BEGUR HOBLI,
ELECTRONIC CITY POST,
BANGALORE-560 100.
20. SMT. AMMAYAMMA
W/O. SRI. MUNIREDDY,
AGED ABOUT 57 YEARS,
RESIDING AT MUNEKOLALU VILLAGE,
MARTHALLI POST,
BANGALORE-560 035.
21. SRI. CHANNKESHAVA
S/O. LATE H. RAMAKRISHNAPPA,
AGED ABOUT 32 YEARS,
RESIDING AT JOTHIPURA VILLAGE,
VIRGONAGAR POST,
K.R. PURAM EAST,
BANGALORE-560 049.
SRI. B.G. PAPA REDDY
SINCE DEAD BY HIS LRS
22. SMT. PADMA,
W/O. NAGARAJAREDDY,
D/O. LATE PAPANNA REDDY,
AGED ABOUT 51 YEARS,
7
NEAR HANUMANTHAREDDY SHOP,
DODDANAGAMANGALA,
BEGUR HOBLI,
ELECTRONIC CITY POST,
BANGALORE-560 100.
23. SMT. VASANTHA
W/O. NARAYANAREDDY,
D/O. LATE PAPANNA REDDY,
AGED ABOUT 47 YEARS,
BEHIND OLD HANUMANTHA TEMPLE,
HOSUR MAIN ROAD, BOMMANAHALLI,
BEGUR HOBLI,
BANGALORE-560 068.
24. SMT. SHAKUNTHALA
W/O. RAJAREDDY,
D/O. LATE PAPANNA REDDY,
AGED ABOUT 44 YEARS,
HOODI VILLAGE,
WHITEFIELD POST,
BANGALORE-560 048.
25. SMT. BAGYA
W/O. MANJUNATHAREDDY,
D/O. LATE PAPANNA REDDY,
AGED ABOUT 42 YEARS,
HAMBILIPURA VILLAGE,
OPP. I C I C BANK,
HARALUR MAIN ROAD,
BELLANDUR POST,
VARTHUR HOBLI,
BANGALORE-560 035.
26. SMT. KANTHAMMA
W/O. KESHAVAREDDY,
8
D/O. LATE PAPANNA REDDY,
AGED ABOUT 39 YEARS,
SHEKAR REDDY BUILDING,
BEHIND SOWPARNICA APARTMENT,
BASAPURA, BEGUR HOBLI,
ELECTRONIC CITY POST,
BANGALORE-560 100.
27. SRI. P. KODANDARAMAREDDY
S/O. SRI. B.G. PAPA REDDY,
AGED ABOUT 62 YEARS,
R/AT NO. 6 AND 7, 3RD CROSS,
B.T.M. SECOND STAGE, IST PHASE,
BANGALORE-560 076.
28. SRI. SRINIVAS REDDY
S/O. SRI. B.G. PAPA REDDY,
AGED ABOUT 36 YEARS,
RESIDING AT NO.273/5, P.R. COMPLEX,
VIRATANAGAR, SHANKARNAG ROAD,
BOMMANAHALLI AT POST,
BEGUR HOBLI,
BANGALORE-560 076.
29. SRI. PRAKASH
S/O. SRI. GURAPPA,
AGED ABOUT 58 YEARS,
R/AT NO. 15/5, 4TH CROSS,
HOSUR MAIN ROAD, MADIVALA,
BANGALORE-560 068.
30. SMT. VEERAMMA
W/O. RAMAIAH REDDY,
AGED ABOUT 72 YEARS,
RESIDING AT NO.42/1,
GARVEBHAVI PALYA,
BEGUR HOBLI, BANGALORE-560 068.
9
31. SRI. MADHAN MOHAN REDDY
S/O. NARAYANA REDDY,
AGED ABOUT 49 YEARS,
RESIDING AT DODDANAGAMANGALA
VILLAGE, BEGUR HOBLI,
ELECTRONIC CITY POST,
BANGALORE-560 100.
32. SRI. K. SAMPANGIRAMAIAH
S/O. LATE KENCHAPPA,
AGED ABOUT 56 YEARS,
33. SRI. K. MANJUNATHA
S/O. LATE KENCHAPPA,
AGED ABOUT 53 YEARS,
RESPONDENT NO.32 & 33
BOTH R/AT NO.28 & 29
SINGASANDRA VILLAGE,
ELECTRONIC CITY POST,
BANGALORE-560 100.
34. SRI. S. KAILASH CHAND
S/O. LATE SOHAN LAL,
AGED ABOUT 59 YEARS,
RESIDING AT NO.651, 4TH "B" CROSS,
9TH "D" MAIN, R.P.C. LAYOUT,
VIJAYANAGAR,
BANGALORE-560 040.
35. SRI. K. KANKARAJ
S/O. C.P. KRISHNAREDDY,
AGED ABOUT 44 YEARS,
R/AT NO.9, 80 FEET ROAD,
OPPOSITE POLICE STATION,
10
8TH BLOCK, KORAMANGALA,
BANGALORE-560 095.
36. SMT. SHANTHAMMA
S/O. LATE SRINIVASA REDDY,
AGED ABOUT 61 YEARS,
RESIDING AT SINGASANDRA VILLAGE,
ELECTRONIC CITY POST,
BANGALORE-560 100.
37. SRI. K.M. KRISHNAMURTHY
S/O K.G. MUNISWAMY
AGED ABOUT 52 YEARS
R/AT NO.28, NEAR BBMP OFFICE,
KONAKUNTE, AMRUTHANAGAR MAIN ROAD,
UTTARAHALLI HOBALI,
BANGALORE SOUTH TALUK.
38. SRI. VENKATASWAMY
S/O LATE KAKAPPA
AGED ABOUT 53 YEARS
R/AT RAYASANDRA VILLAGE,
HUSUKUR POST, SARJAPUR HOBLI
ANEKAL TALUK
BANGALORE-560 100.
39. SMT. SAKAMMA
W/O LATE MUNIREDDY
AGED ABOUT 75 YEARS,
40. SRI. MUNIRAJU
S/O LATE MUNIREDDY
AGED ABOUT 52 YEARS,
11
41. SRI. ASHOKA
S/O LATE MUNIREDDY
AGED ABOUT 50 YEARS,
42. SRI.RAMESH
S/O LATE MUNIREDDY
AGED ABOUT 52 YEARS,
43. SRI.MANJUNATHA
S/O LATE MUNIREDDY
AGED ABOUT 41 YEARS,
44. SRI. HARISH
S/O LATE MUNIREDDY
AGED ABOUT 36 YEARS,
45. SRI. GOPAL REDDY
S/O LATE DODDUMISWAMY REDDY
AGED ABOUT 72 YEARS,
46. SRI. PRAMILAMMA
W/O VENKATASWAMY REDDY
MAJOR
RESPONDENT NO.39 TO 46 ARE
R/AT DODDANAGAMANAGALA VILLAE,
BEGUR HOBLI, ELECTRONIC CITY POST,
BANGALORE-560 100.
47. SMT. LAKSHMAMMA
W/O LATE MUNISWAMY REDDY
AGED ABOUT 48 YEARS
R/AT MUNEKOLALU VILLAGE,
MARTHALLI POST,
BANGALORE-560 037.
12
48. SRI. RAJAPPA REDDY
S/O LATE RAMPRASAD REDDY
AGED ABOUT 50 YEARS,
49. SRI. P. SRIDHARAN
S/O. LATE RAMPRASAD REDDY
AGED ABOUT 46 YEARS,
RESPONDENT NO.48 & 49
R/AT HOSAPALYA VILALGE,
BOMMANAHALLI POST,
BEGUR HOBLI,
BANGALORE-560 068.
50. SMT. GEETHA
D/O NANJAREDDY
AGED ABOUT 29 YEARS,
51. SMT. DEEPA
D/O NANJAREDDY
AGED ABOUT 27 YEARS
RESPONDENT NO.50 & 51
R/AT CHANANKESHAVA NAGARA,
HOSA ROAD, 4TH MAIN ROAD,
BANGALORE-560 100.
52. SMT. R. SHARADAMMA
W/O L. GOPALAREDDY
AGED ABOUT 48 YEARS
R/AT KOTHANUR DINNE VILLAGE,
S.O.S. POST,
BANGALORE-560 076.
53. SRI. BOOPESH REDDY
S/O.S.JAYARAM REDDY
AGED ABOUT 45 YEARS
13
3RD FLOOR, NO.61, BALAVANA
5TH 'A' BLOCK, KORAMANGALA
BANGALORE
KORAMANGALA-560 095. ...RESPONDENTS
(BY SRI.T.N.VISWANATHA & SRI.T.N.RAMESH, ADVS. FOR
C/R-30, SHARATH S GOWDA, ADV. FOR R5, R20, R29, R31-
R34, SRI.CHETAN NAG, ADV FOR R17 & R18,
SRI.T.N.RAGHUPATHY, ADV. FOR R-8, SRI.NIKHILESH M.
RAO AND MISS.VARSHA BY INDUS LAW, ADVS. FOR R27
AND R28, SRI.S.VENKATESH, ADV FOR R38,
SRI.P.M.RAGHURAMA REDDY, ADV FOR R45 & R46,
SRI.S.SRIKANTH, ADV. FOR R12, R21 & R35, SRI.
VIGNESHWARA U, ADV. FOR C/R39-44, R48 & R49,
SRI.A.K.SUBBAIAH, ADV. FOR R53, SRI.DEEPAK S.SARANG
S.SARANGMATH, ADV FOR IMPLEADING R53, NOTICE TO
R14 DISPENSED WITH, SERVICE OF NOTICE ON R1 TO R4,
R9 TO R11 AND R15 ARE HELD SUFFICIENT, R6, R7, R13,
R37, R50 - R52 SERVED, NOTICE TO R22 - R26, R36, R47
ARE HELD SUFFICIENT)
THIS MFA IS FILED UNDER ORDER 43, RULE 1(r) OF
CPC, AGAINST THE ORDER DATED 02-02-2016 PASSED ON
I.A.NO.1 IN O.S.NO.1944/2014 ON THE FILE OF THE 12TH
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU, DISMISSING I.A.NO.1 FILED UNDER ORDER
39 RULES 1 AND 2 OF CPC.
THIS MFA COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
14
JUDGMENT
Aggrieved by the order dated 2nd February 2016 passed on I.A.No.1 in O.S.No.1944/2014 by the XII Additional City Civil Judge, Bangalore, the appellants are before this Court under Order 43 Rule 1(r) of the Code of Civil Procedure.
2. Ranking of the parties would be referred to as they stand before the trial Court.
3. The brief facts of the case are:
The appellants are plaintiffs and respondents are defendants in O.S.No.1944/2014 filed praying for a judgment and decree for partition and separate possession of the share of Ramaiah @ Ramaiah Reddy, half share in the suit schedule property to the share of the plaintiffs and defendants 1 to 4;
for permanent injunction against the defendants, restraining them from alienating or encumbering the suit schedule properties or any part thereof in any manner to whomsoever.
Along with the suit, the plaintiffs filed an I.A. under Order 39 15 Rules 1 and 2 of CPC praying to grant an exparte ad-interim order of temporary injunction restraining the defendants from alienating, mortgaging or encumbering suit schedule properties till the disposal of the suit. The trial Court, by its order dated 12-03-2014 granted an ex-parte ad-interim order of temporary injunction restraining the defendants from alienating the suit schedule properties. On appearance of the defendants, the trial Court by its order dated 27-06-2015 directed both the parties to maintain status quo in respect of the suit schedule properties. Further observed that I.A. filed by the plaintiffs seeking temporary injunction against the defendants not to alienate the suit schedule properties was treated as having been merged in the main suit. Aggrieved by the said order dated 27-06-2015 and also order dated 12-3-2014, defendants 23 and 24 filed MFA Nos.7092/2015 and 7821/2015. This Court, by order dated 02-12-2015 set aside the impugned orders and directed the trial Court to hear all the parties and dispose of the I.A. filed for temporary 16 injunction. Further this Court observed that till the end of January 2016, both parties to maintain status quo in respect of the suit schedule property. After remand, the trial Court heard all the parties to the suit on I.A.No.1 filed under Order 39 Rules 1 and 2 of CPC and by its order dated 02-02-2016 rejected I.A.No.1 filed by the plaintiffs against defendant Nos.12 to 48 and vacated the order of status quo.
4. The plaintiffs aggrieved by the order dated 02-02-2016, by which I.A. filed under Order 39 Rules 1 and 2 was dismissed have filed the present appeal before this Court on 01-04-2016. No interim order is granted by this Court initially. From the date of filing of this appeal i.e., from 01-04-2016 to 27-11-2017, there was no interim order in the present appeal. On 28-11-2017, this Court passed the following interim order:
"Till service of notice, all the parties shall maintain status-quo with regard to alienation."17
5. In the meanwhile, the plaintiffs had filed an I.A. before the trial Court for impleading defendant No.49 in the suit and the said impleading application came to be allowed on 03-07-2017. Respondents No.49 and 53 in the present appeal were not parties to the suit originally. Even though the plaintiffs impleaded defendant No.49 in the suit before the trial Court, the plaintiffs did not make any efforts to implead defendant No.49 in this appeal and in their absence interim order dated 28-11-2017 came to be passed. Subsequently, the respondents 49 to 53 in the present appeal had filed independent applications for impleadment and got themselves impleaded. Respondent No.53 got himself impleaded in this appeal on 21-02-2018. Subsequently, I.A.No.2/2018 is filed by Respondent No.53, I.A.No.5/2018 is filed by Respondent No.30, I.A.No.6/2018 is filed by Respondent No.16 and I.A.No.7/2018 is filed by Respondents No.17 and 18 for vacating interim order dated 28-11-2017.
18
6. With the consent of the parties, the appeal is taken up for final disposal, at the stage of hearing the interlocutory applications for vacating stay.
7. The plaintiffs filed a suit O.S.No.1944/2014 for partition and separate possession of half share of property of Ramaiah @ Ramaiah Reddy. The plaintiffs No.1 & 2 are sons of Ramaiah Reddy who is the first son of Muniswamy Reddy @ Munishamappa; plaintiff No.5 is daughter of Ramaiah Reddy; Plaintiffs No.3 and 4 are grandsons of Ramaiah Reddy through his daughter Rathnamma. Defendants 6 to 11 are sons and daughters of Thimma Reddy who is the second son of Muniswamy Reddy @ Munishamappa. Defendant No.1 is daughter of Ramaiah Reddy, defendant No.2 is the wife and defendant No.3 is son of Venkataswamy Reddy son of Ramaiah Reddy. Defendants No.4 and 5 are granddaughter and grandson respectively, of Ramaiah Reddy through Anjana Reddy.
19
8. The case of the plaintiffs are that the father of Ramaiah Reddy i.e.,Muniswamy Reddy @ Munishamappa had acquired property in Sy.No.82 under auction dated 5-1-1929 totally measuring 27 acres 07 guntas situated at Dodda Nagamangala village, Begur Hobli, Bangalore. The said Muniswamy Reddy died intestate in the year 1957 leaving behind his sons and daughters to succeed to the suit schedule properties. It is their definite case that either during the lifetime of said Muniswamy @ Munishamappa or after his death at any time no partition whatsoever nature has taken place. It is further asserted that even among the sons of Muniswamy @ Munishamappa i.e., Ramaiah @ Ramaiah Reddy, Thimma Reddy and Munireddy, no partition of whatsoever nature was effected. The suit schedule properties are joint family properties and legal heirs of the deceased Muniswamy @ Munishamappa are in joint possession. According to the plaintiffs, defendants 12 to 48 have no independent or exclusive rights over any part of the suit schedule properties 20 and none of the legal heirs of deceased Ramaiah Reddy and Thimma Reddy had executed any deed of conveyance in favour of the said defendants No.12 onwards and they are strangers. Further, they state that whatever documents the defendants 12 onwards have produced in respect of any portion of the suit schedule properties are nothing but void, concocted, fabricated, collusive and got up documents and are not binding on any of the plaintiffs or defendants 1 to 11.
9. The defendant No.3 has filed his independent written statement supporting the plaintiffs and prayed for allowing the suit. Defendants No.6 to 11 have also filed their written statements praying to decree the suit as prayed by the plaintiffs. It is stated in their written statement that the transactions which have taken place behind their back are null and void and not binding on those defendants. Defendant No.16 filed written statement contending that Muniswamy @ Munishamappa had conveyed two thakus (measuring about 10 acres 34 guntas) of land in Sy.No.82 of 21 Doddanagamangala village, Begur Hobli under sale deed dated 13-01-1937 in favour of one Sri.Patel Ramaiah. Patel Ramaiah conveyed the said two thakus of land under sale deed dated 23-02-1938 in favour of one M.Erappa. Subsequently there was partition among the family members of M.Erappa under registered partition deed dated 12-03-1946. The partition had taken place between Erappa, Muniveerappa and Narayanappa. The said Sri.Narayanappa sold 10 acres 34 guntas in favour of one Sri.B.R.Sadashiva Rao under the sale deed dated 5-4-1950. Thus the said 10 acres 34 guntas has come out of the joint family of Muniswamy @ Munishamappa. The defendants No.17 and 18, defendant No.21, defendants No.23 and 24, defendant No.25, defendant No.26, defendant No.27, defendants No.28 and 29, defendant No.34, defendants No.35 to 40, and defendants No.41 and 42 filed their written statement and prayed for dismissal of the suit. The defendant No.21 in his written statement has taken a contention that defendant No.1 22 Smt.Sarojamma and father of defendants No.4 and 5 late Anjana Reddy son of Ramaiah Reddy, together sold 18 guntas and 21 guntas totally measuring 39 guntas in the suit item No.3 in favour of father of 21st defendant under a registered sale deed dated 07-05-1992. The defendants No.23 and 24 who are the vendors of defendant No.49 have stated that they are the absolute owners of land in Sy.Nos.82/4 and 82/2 measuring 2 acres 35 guntas and 2 acres 17½ guntas respectively, which they have already sold. The defendants 23 and 24 had also filed objections to I.A.No.1 contending that the property sold by Muniswamy @ Munishamappa in the year 1937 has not been brought back. As such, the plaintiffs have neither made out prima facie case nor balance of convenience is in their favour for grant of temporary injunction.
10. Heard the learned counsel Sriyuths Prasanna Kumar and Y.K.Narayana Sharma, learned counsel for the plaintiffs/appellants and Sriyuths Ashok Haranahalli, learned 23 Senior Counsel for Sri.S.Deepak S.Sarangmath, Advocate for Respondent No.53/defendant No.49, T.N.Raghupathy, learned counsel for Respondent No.8, T.N.Vishwanath, learned counsel for Respondent No.30, Promod and G.Y.Sudhakar, Advocates for Respondent No.16, Sharath S.Gowda and Naveen Kumar, Advocates for Respondents No.5, 20, 29, 31, 32, 33 and 34, Miss.Varsha Hittinahalli, Advocate for Respondents No.27 and 28, Sri.V.Vigneshwara, Advocate for Respondents No.39, 40, 41, 42, 43, 48 and 49.
11. Sri.Prasanna Kumar, learned counsel appearing for some of the appellants submitted that the suit for partition was filed on 10-03-2014 and on 12-03-2014 ad-interim order of injunction was granted directing the defendants not to alienate the suit schedule properties. Thereafter when the defendant Nos.23 and 24 challenged the said order before this Court, this Court remanded the matter for consideration afresh directing the parties to maintain status quo till the end of January 2016. The trial Court rejected the I.A. filed for 24 injunction by its order dated 2-2-2016. This Court, by applying its mind passed an order on 28-11-2017 directing the parties to maintain status quo with regard to alienation which is a discretionary order and cannot be interfered with. Further he submits that Section 52 of Transfer of Property Act prohibits any transfer during the pendency of the suit. Further he submits that if at all, this Court permits alienation, the defendants have to be put on terms either to deposit the proceeds in the Court or to put a clause making aware of the purchasers the pendency of the suit. Unless demarcation of the property during the course of FDP, the land cannot be identified as to which portion of land would be allotted among the plaintiffs and defendants 1 to 4. He further contends that no partition has taken place and the suit schedule property is a joint family property and is in joint possession. Learned counsel relies upon a decision of this Court reported in ILR 2012 KAR 4129 in the case of S.K.LAKSHMINARASAPPA, SINCE DECEASED BY HIS L.Rs. 25 v/s. SRI.B.RUDRAIAH AND OTHERS to contend that earlier suit for partition would not bar the subsequent suit for partition. Further, he relies upon another decision of this Court reported in ILR 2013 KAR 5063 in the case of SRI.S.LOKANATHA v/s. SMT. S.VARALAKSHMI AND OTHERS to contend that subsequent purchasers are not necessary parties to the suit. It is his further submission that the plaintiffs have made out prima facie case and there is a triable issue, hence prays for allowing the appeal and to grant temporary injunction as prayed in I.A.No.1. Sri.Y.K.Narayana Sharma learned counsel appearing for some of the plaintiffs submits that the plaintiffs are not parties to the earlier suits O.S.No.53/2010 or O.S.No.812/2014. Further, he submits O.S.No.2147/2008 filed by the plaintiffs 1 and 2 herein for partition was only in respect of one survey number and as such, it was withdrawn to file the present comprehensive suit. There is no clarity about the extent and boundaries which the defendants claim that certain lands 26 have been sold in their favour. Whether those sales are valid or not are to be gone into in the trial and there is a triable issue in the suit. He submits that the plaintiffs have made out prima facie case as prior division of properties is not forthcoming; they are not parties to the documents such as sale deeds executed in favour of some of the defendants and they are not binding on the plaintiffs. It is his further submission that the plaintiffs and defendant No.1 to 4 have got right in the suit schedule properties and there is a fair chance of succeeding in the suit also balance of convenience is in their favour and if the injunction is refused, they would suffer irreparable injury.
12. Learned counsel Sri.T.N.Raghupathy, appearing for defendant No.8 supported the contentions raised on behalf of the plaintiffs and submits that the suit schedule properties are joint family properties. Further it is his submission that whatever transactions that have taken place are illegal and are against the interest of the joint family members, which 27 are not binding on the members of the joint family. It is his submission that as on today no partition has taken place. He further submits that as on the date of either at the time of considering I.A.No.1 by the trial Court or at the time of passing interim order by this Court on 28-11-2017, the defendant No.49/respondent No.53 herein was not before the Court and has produced number of documents, as such, the matter be remanded to the trial Court for fresh consideration of I.A.No.1. He also further submits that there is indemnity clause in the sale deed executed by Respondent No.53 dated 11-09-2013.
13. Learned Senior Counsel appearing for defendant No.49/Respondent No.53 in the present appeal submits that the plaintiffs have filed the suit by totally suppressing the material facts. Muniswamy @ Munishamappa had three sons Ramaiah Reddy, Thimma Reddy and Muni Reddy. Muni Reddy died issueless. The plaintiffs No.1 and 2 herein had also filed O.S.No.2147/2008 for partition of Sy.No.82/1 to an 28 extent of 3 acres 25 guntas. Further, he submits that Anjana Reddy son of Ramaiah Reddy had sold 21 guntas of land in Sy.No.82/1 of Doddanagamangala village, Begur Hobli under the sale deed dated 17-07-1998. Under the gift deed dated 16-06-2004, Anjana Reddy S/o.Ramaiah Reddy had gifted 21 guntas of land in favour of his daughter Nanda who is defendant No.5 in the present suit. In the said document it is stated by Anjana Reddy that the said property has come to his share under Panchayat Palupatti dated 17-10-1974. The document executed by the grandfather of the plaintiffs 1 and 2 on 18-07-1940 selling two thakus of land in favour of Erappa Reddy also does not find place in the plaint averments. It is his further submission that the partition is sought in respect of 27 acres forgetting and suppressing the above mentioned transactions made in respect of the suit schedule properties. Further it is his specific contention that when plaintiffs No.1 and 2 had filed suit for partition in the year 2008, they ought to have disclosed the same in the 29 present suit. They have suppressed the said suit for partition only with a view to get an order of injunction. It is further submitted that the plaintiffs have not challenged any of the earlier sale deeds or any of the partitions which have taken place. The learned Senior counsel relies upon the decision of the Hon'ble Supreme Court reported in (1995) 5 SCC 545 in the case of GUJARAT BOTTLING CO. LTD. AND OTHERS v/s COCA COLA CO. AND OTHERS to contend that the parties who seek discretionary order of temporary injunction shall not suppress material facts and one should come to the Court with clean hands. He relies on a decision of this Court reported in ILR 2004 KAR 2893 in the case of STERLING'S MAC FAST FOOD v/s MC DONALD'S CORPORATION USA, REP. BY ITS PAH VIKRANT RANA AND ANOTHER to contend that unless the disputed facts are thrashed out at the trial, the plaintiffs are not entitled for injunction, particularly when large amount of evidence is required for establishing the case.
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14. Learned counsel Sri.T.N.Vishwanath appearing for defendant No.26 submits that defendant No.26 has purchased part of item No.1 in Sy.No.82/7 from one Shanthamma. He further submits that defendant No.26 had further gifted the said property to her husband and two daughters under the gift deed dated 12-12-2003 and the revenue records stand in their names. His land which was initially with Muniswamy @ Munishamappa which was allotted to his son Thimma Reddy is subsequently purchased by Sri.Prakash from the wife of Thimma Reddy under sale deed dated 14-12-1992. He further submits that the plaintiffs have suppressed the material facts of execution of sale deeds and earlier partitions which amounts to fraud. Considering all these facts, he submits that the plaintiffs have not made out prima facie case. Learned counsel Sri.Promod appearing for defendant No.16 submits that he adopts the argument of learned Senior Counsel. In addition, he submits that defendant No.16 has purchased 1 acre 20 guntas under 31
sale deed dated 20-7-1995 in Sy.No.82/5. Even though the plaintiffs contend that the defendants No.12 to 28 are strangers, without disclosing any reason they have been made parties to the suit and no prayer is sought against them. The counsel for respondent Nos.17, 18 and Respondent Nos.27 and 28 also make submissions to the above effect. Learned counsel for Respondent No.5 submits that the plaintiffs have filed the present suit taking a chance to get an interim order. They have not challenged any of the sale deeds or gift deeds which have taken place in respect of the suit schedule properties. He further submits that the plaintiffs No.1 and 2 had filed suit on earlier occasion in O.S.No.2147/2008 wherein the plaintiffs could not get any interim order. Suppressing the pendency of the said suit, the present suit is filed on 11-3-2014 and on 12-03-2014 ad-
interim order of injunction is granted not to alienate the suit schedule properties. Subsequently, O.S.No.2147/2008, 32 partition suit filed earlier by plaintiff No.1 and 2 is withdrawn on 28-07-2014.
15. Having heard the learned counsel for the parties and having perused the appeal papers, the question which arises for consideration is whether the impugned order on I.A.No.1 under Order 39 Rules 1 and 2 of CPC, requires interference?
16. The exercise of power under Order 39 Rules 1 and 2 of CPC for grant of temporary injunction is discretion of the court. While exercising the discretion, the Court has to see as to whether the plaintiffs have prima facie case, whether the balance of convenience is in favour of the plaintiffs and whether the plaintiffs would suffer irreparable injury if their prayer for interlocutory injunction is refused. From the narration of facts and on consideration of law on the point, I am of the view that the plaintiffs have not made out any ground to interfere with the impugned order and further the plaintiffs have not made out prima facie case or balance of 33 convenience in their favour for grant of temporary injunction for the following reasons:
17. Firstly, it is the case of the plaintiffs that their grandfather Muniswamy @ Munishamappa acquired land measuring 27 acres 07 guntas in Sy.No.82 under auction dated 5-1-1929 and Government order dated 29-06-1936. The said Muniswamy @ Munishamappa sold two thakus of land under sale deed 18-07-1940 to one P.Veerappa Reddy out of which, one thaku of land was repurchased by Munishamappa. Further, out of 27 acres 07 guntas, apart from selling two thakus to P.Veerappa Reddy, two more thakus were sold in favour of Patel Ramaiah who in turn sold 10 acres 34 guntas to one M.Erappa under sale deed dated 23-08-1938. The said Erappa had two brothers Muniveerappa and Narayanappa. Partition dated 12-03-1946 took place between the brothers of Erappa and 10 acres 34 guntas was allotted to the share of Erappa's brother Sri.Narayanappa. The said Narayanappa sold the said 10 34 acres 34 guntas in Sy.No.82 to Sri.B.R.Sadashiva Rao under the sale deed dated 5-4-1950. The said Sri.Sadashiva Rao sold it to Sri.Jangama Reddy under sale deed dated 7-10-1963. Partition took place on 16-1-1968 between Jangama Reddy and his brothers. Thus two thakus of land has come out of the joint family property of Muniswamy @ Munishamappa out of 27 acres 7 guntas. Another two thakus of land was sold to P.Veerappa Reddy under the sale deed dated 18-07-1940, out of which, one thaku has been repurchased by Muniswamy @ Munishamappa. The plaintiffs have sought for partition of total 27 acres, but, from the above it is clear that after the above sales, the entire 27 acres of land does not remain with the joint family. Further, two thakus were sold to Sri.Veerappa Reddy out of which, one thaku is repurchased by Muniswamy @ Munishamappa and is partitioned among his two sons Ramaiah Reddy and Thimmaiah Reddy, which is further sold to Channappa by father of plaintiff No.1. Therefore, the plaintiffs themselves have doubt about the extent of land 35 available in original Sy.No.82 and prima facie, I am of the view that suit schedule properties as claimed by the plaintiffs is not in their joint possession. It requires large amount of evidence to prove their possession or joint possession.
18. Secondly, the plaintiffs have suppressed the material facts and the conduct of the plaintiffs would make them not entitled for the discretionary relief under Order 39 Rules 1 and 2 of CPC. The plaintiffs No.1 and 2 herein had filed O.S.No.2147/2008 in which they had made an averment that there was oral partition during the lifetime of Ramaiah Reddy father of plaintiffs No.1 and 2 and Thimma Reddy brother of Ramaiah Reddy in respect of land bearing Sy.No.82 measuring 7 acres 34 guntas. Paragraph 5 of O.S.No.2147/2008 reads as follows:
"The plaintiffs submit that during the life time of Muniswamy Reddy he was in possession and enjoyment of the said property, after his death his sons have succeeded the properties of him and they 36 have been in joint possession and enjoyment of the schedule property along with other properties. During the life time of Ramaiah Reddy and Thimma Reddy have partitioned the land bearing Sy.No.82 measuring 7 acres 34 guntas of Doddanagamangala village, in the said oral partition 4 acres 6 guntes including 6 guntas of karab was allotted to the share of father of the plaintiffs late Ramaiah Reddy and 3 acres 34 guntas was allotted to the share of Thimmareddy.
Accordingly the said Ramaiah Reddy and Thimmareddy are in separate possession and enjoyment of their respective properties as absolute owners."
19. Further it is also stated in O.S.No.2147/2008 that father of defendant No.4 and father of defendants 5 and 6 had sold the property measuring 21 guntas in favour of one Ammayyamma under a registered sale deed dated17-07-1998. Moreover, the plaintiffs have also not stated about the gift deed executed by the brother of plaintiffs No.1 and 2 on 16-6-2004 in favour of his daughter Nanda/defendant No.5 herein. 37 In the said gift deed, Anjan Reddy brother of plaintiffs 1 and 2 had specifically made an averment that the said property had come to his share under panchayat partition dated 17-10-1974. All these suppression of material facts which are very much necessary for deciding the issue of partition would disentitle the plaintiffs for discretionary order of temporary injunction.
20. The contention of the learned counsel for the appellants that Section 52 of Transfer of Property Act prohibits transfer of property during the pendency of the suit, it is to be stated that the lis pendence does not annul the transfer made by a party to the suit, but only renders it subservient to the rights of the other parties to the litigation. The transaction would be subject to the decision in the suit. The trial Court has rightly rejected the application for temporary injunction by its reasoned order. The trial Court at paragraphs 26 and 27 has rightly noted that there is suppression of earlier transactions. Further it is an admitted fact that no challenge 38 is laid to the series of prior sale deeds or partitions in respect of Sy.No.82. It is the contention of the plaintiffs that they need not make subsequent purchasers party to the suit. But the plaintiffs have already made certain of purchasers of suit schedule Sy.No.82 as parties to the suit. Therefore, at this stage, the question as to whether subsequent purchasers are to be made parties or not, need not be gone into. The appellants have relied upon decision reported in ILR 2012 KAR 4129 (supra) in support of their contention with regard to making of purchasers as parties to the suit. This decision would explain as to who is a necessary party and who is a proper party to the partition suit. At paragraph 71, this Court has held as follows:
"71. It was contended on behalf of alienees that though no limitation is prescribed for filing a suit for partition, that holds good only against the co- parceners/co-sharers. The said principle has no application to the alienees who are third party strangers to the family. If the alienees are claiming title independent of the family members or co-39
parceners, there is merit in the said submission. When they claim title under the members of the family or co-parceners and when they are lawfully inducted into possession by them, the possession of the said family members and persons claiming under them would be the possession of the plaintiffs in the suit also. Till the partition is effected by metes and bounds, nobody can claim exclusive title to any portion of the property. Therefore the alienees though they are put in exclusive possession of a portion of the property, as the property is not divided by metes and bounds, they cannot claim exclusive title to the property which is to be in their possession. Therefore the plaintiffs are deemed to be in possession in law, of the property, which is in the possession of such alienees. The plaintiffs cannot maintain a suit against such alienees, it is necessary for the plaintiffs to file a suit for general partition against the co-parceners or family members or co-sharers and include such alienees who are only proper parties in a suit for partition. Only if they get decree against co-sharers, family members or co- parceners, they would be entitled to possession 40 from such alienees. Therefore, the suit that is being filed against the alienees is in fact a suit for partition filed against the members of the family, co-sharers and co-parceners and as admittedly no period of limitation is prescribed for filing such a suit, this suit is not barred by law of limitation in so far as alienees are concerned."
Therefore, if the plaintiffs have to recover possession from such alienees, it is necessary for the plaintiffs to file a suit for general partition against coparceners or family members or co-sharers and include such alienees who are only proper parties in a suit for partition. Only if they get a decree against co-sharers, family members or coparceners, would be entitled to possession from such alienees. Furthermore, the plaintiffs have made some of the purchasers as parties to the suit as defendants No.12 to 48.
21. In the case on hand, from the material placed before the Court, it is clear that the plaintiffs are not in possession of the suit schedule property in its entirety. The trial Court has 41 observed that the plaintiffs have also suppressed the earlier partitions and even though second suit for partition is maintainable, the plaintiffs are bound to give an acceptable explanation in the subsequent suit. Here the conduct of the plaintiffs is to be noted. The suit O.S.No.2147/2008 is filed for partition by plaintiff Nos.1 and 2 herein in respect of Sy.No.82/1 measuring 3 acres 25 guntas. The present suit is filed on 10-03-2014 and an interim order is passed on 12-03-2014 directing the parties to maintain status quo. Three months thereafter from the date of interim order, the suit O.S.No.2147/2008 was withdrawn on 28-07-2014. This conduct of the plaintiffs makes it clear that they were interested only in getting an interim order which they were not able to get in the earlier suits. Further it is to be noted that the facts narrated above would show that the plaintiffs are not in possession of the suit schedule properties and on the other hand, the defendants who are purchasers under various sale deeds are in possession. The trial Court, in that 42 regard has recorded that plaintiffs are out of possession of the suit schedule properties. At paragraph 35 of its order, the trial Court has given reasons for coming to the said conclusion.
22. Thirdly, the material on record and suit averments at paragraph 5 of O.S.No.2147/2008 it is clear that the plaintiffs 1 and 2 have admitted that there was partition in the joint family in respect of Sy.No.82. Further, the submission of defendant/respondent No.5 is that she got the land measuring 21 guntas in Sy.No.82/1 by way of gift deed from her father Anjana Reddy, which document also indicates Panchayat Palupatti dated 17-10-1974. The submission of the learned counsel for respondent/defendant No.8 that, as the defendant No.49/respondent No.53 has produced number of documents and as they were not before the Court while the impugned order was passed, as such the matter may be remanded to the trial Court for fresh consideration on I.A., is liable to be rejected for the reason that plaintiffs have not 43 made out prima facie case and also as stated above the plaintiffs are not sure about their possession and extent of land with them.
23. The learned Senior Counsel Sri.Ashok Haranahalli, appearing for Respondent No.53 as stated earlier submitted that in respect of Sy.Nos.82/2 and 82/4 that his predecessors and successors in title have perfected their title under registered sale deeds and also by adverse possession. He submits that the plaintiffs are indisputably not in possession of Sy.No.82/2 and 82/4. From defendant Nos.23 and 24, defendant No.49/Respondent No.53 purchased the lands in Sy.No.82/2 and 82/4 under sale deeds dated 18-03-2013 and 05-09-2013. Thus it is his submission that neither sale deed nor partition stated above have been challenged and suppressing the transactions and partition suit filed earlier, the plaintiffs only with an intention to harass the defendants have filed the present suit for partition. Seen from any angle, the plaintiffs have not made out a prima 44 facie case nor balance of convenience is in their favour. He relies upon the decision of the Hon'ble Supreme Court reported (1995) 5 SCC 545 (supra) to say that the plaintiffs are not entitled for interim order of injunction. Further he relies upon a decision of this Court reported in ILR 2004 KAR 2893 (supra) to contend that normally the appellate court would not be justified in interfering with the discretionary order that too when large amount of evidence is required for establishing the case. Paragraph 39 of the said judgment reads as follows:
"As noticed earlier, the Appellate Court would normally not be justified in interfering with the exercise of discretion, unless the order of the Trial Court is arbitrary, capricious, unreasonable or the Court has either not taken into consideration the material facts available on record or has not applied proper legal principles. In this case, I am of the view that the Trial Court misdirected itself, while dealing with the questions that has fallen into considerations. The main issue was the plea of acquiescence and case laws have been relied on by both the parties on this point. The Trial Court instead of given a finding on that point has 45 held that suit is not barred by time. The Trial Court has not even considered the other aspects, such as injury that may be caused to the defendant while allowing I.A.I. since the defendant has been doing the business under its trade name continuously and uninterruptedly since 1982. Unless the disputed facts are thrashed out at the trial, the plaintiff is not entitled for injunction, particularly when large amount of evidence is required for establishing the case. The Trial Court has not even considered the fact that to grant an order of injunction the injury must be actual and imminent. In these circumstances I am of the view that this Court should interfere with the order of the lower Court. I am of the view that the plaintiff's have not made out either prima facie case or balance of convenience in their favour."
From the above principle, when the case on hand is examined, unless the disputed facts with regard to sale transactions that have taken place earlier and also the partition of lands in Sy.No.82 are thrashed out in the trial by producing cogent and large amount of evidence to establish their case, it may not be appropriate to grant interim order of injunction.
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24. The trial Court has rightly held that the plaintiffs have not made out a prima facie case for grant of injunction and balance of convenience is also not in their favour. Further, on the facts of the case, the plaintiffs would not suffer any irreparable injury if their prayer for temporary injunction is rejected. Hence the appeal is dismissed as devoid of merit.
In view of dismissal of the appeal, all pending I.As do not survive for consideration. Hence, they are rejected.
Sd/-
JUDGE mpk/-* CT-SK