Karnataka High Court
Smt K Lakshmidevamma vs Smt. Munithayamma on 28 July, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2023:KHC:26469
MFA No. 2735 of 2023 C/W.
MFA No.2738 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 2735 OF 2023 (CPC)
C/W.
MISCELLANEOUS FIRST APPEAL NO. 2738 OF 2023 (CPC)
IN MFA NO. 2735 OF 2023:
BETWEEN:
1. SMT. K. LAKSHMIDEVAMMA
W/O. B. ANJINAPPA
AGED ABOUT 61 YEARS,
2. SRI MANJESH
S/O. LATE ANJINAPPA
AGED ABOUT 43 YEARS,
SL.NO.1 & 2 ARE R/AT NO.127
Digitally signed 2ND CROSS, MUNESHWARA TEMPLE ROAD,
by SHARANYA T SRIRAMPURA, JAKKUR POST,
Location: HIGH YELAHANKA HOBLI,
COURT OF
KARNATAKA BENGALURU -560 064.
3. SMT. KANCHANA
W/O. S.M. MUNIRAJU
AGED ABOUT 42 YEARS,
R/AT NO. 229 E, 2ND MAIN
4th CROSS, TELECOM LAYOUT,
SRIRAMPURA JAKKUR POST,
BANGALORE-560 064.
4. SMT. PAVITHRA NAVEEN KUMAR
W/O. NAVEEN KUMAR,
AGED ABOUT 41 YEARS,
-2-
NC: 2023:KHC:26469
MFA No. 2735 of 2023 C/W.
MFA No.2738 of 2023
R/AT NO.10/1
MANJUNATHA NILAYA,
CHAIRMAN KRISHNAPPA'S HOUSE,
2nd CROSS, 1st MAIN ROAD,
GORAGUNTE PALYA,
BANGALORE -560 022.
...APPELLANTS
(BY SRI GURUMATH G. RUDRAMUNI SHARMA, SENIOR
COUNSEL A/W. SRI THIMMEGOWDA N., ADVOCATE)
AND:
1. SMT. MUNITHAYAMMA
D/O. LATE BYRAPPA,
W/O. SRI. DYAVAPPA
AGED ABOUT 75 YEARS,
R/AT NO. 18
SRIRAMPURA VILLAGE,
JAKKUR POST, YELAHANKA HOBLI,
BENGALURU -560 064.
2. SRI E. RAMANA
S/O. LATE EERAPPA
AGED ABOUT 59 YEARS,
R/AT NO. 177,
JYOTHIPURA VILLAGE,
MANDURU POST,
BENGALURU EAST TALUK
BENGALURU -560 049
SRI. M. NAGARAJ
S/O. LATE MARAPPA
SINCE DEAD REPRESENTED
BY HIS LRS,
3. SMT. N. PREMA
W/O. LATE M. NAGARAJ
AGED ABOUT 62 YEARS,
R/AT NO.368,
-3-
NC: 2023:KHC:26469
MFA No. 2735 of 2023 C/W.
MFA No.2738 of 2023
2nd MAIN ROAD, HEBBAL
BENGALURU -560 024.
REP. BY HER GPA HOLDER
SRI CHANNAKRISHNAGOWDA D.,
4. SMT. MUNIYAMMA
D/O. LATE MARAPPA
W/O. RANGAPPA
AGED ABOUT 69 YEARS,
R/AT LAKKONDAHALLY,
HOSAKOTE TALUK
BANGALORE RURAL DISTRICT -562 129
5. SMT. MUNIRATHNAMMA
@ RATHNAMMA
D/O. LATE MARAPPA
W/O. C. KRISHNAPPA
AGED ABOUT 61 YEARS,
R/AT GADDADANAYAKANAHALLI VILLAGE,
MADIBELE POST, DEVANAHALLI TALUK
BENGALURU RURAL DISTRICT -562 135
6. SMT. LALITHAMMA
D/O. LATE MARAPPA
W/O. C. PILLA NAJINE GOWDA,
AGED ABOUT 58 YEARS,
R/AT LAKKONDAHALLY,
HOSAKOTE TALUK -562 129
BENGALURU RURAL DISTRICT
7. SMT. SARASWATHI
W/O. SATHISH CHANDRA
D/O. LATE VENKATAMMA
AGED ABOUT 47 YEARS,
8. SMT. MANJULA
D/O. LATE VENKATAMMA
W/O. K. SURESH
AGED ABOUT 44 YEARS,
-4-
NC: 2023:KHC:26469
MFA No. 2735 of 2023 C/W.
MFA No.2738 of 2023
SL.NOS.7 & 8 ARE R/AT NO.73,
KOTHANUR DINNE
J.P. NAGAR, 8th PHASE,
CHURCH ROAD,
BENGALURU-560 078.
9. SMT. ROOPA
D/O. LATE VENKATAMMA
W/O. SONNAPPA
AGED ABOUT 41 YEARS,
R/AT NO. 84, 1ST 'C' CROSS,
BHUVANESHWARI NAGAR,
T. DASARAHALLI,
BENGALURU-560 057.
10. SMT. MAMATHA
D/O. LATE VENKATAMMA
W/O. V.N. RAMESH
AGED ABOUT 38 YEARS,
R/AT: VAGATA VILLAGE,
HOSAKOTE TALUK
BENGALURU RURAL DISTRICT -562 114.
11. SMT. SAKAMMA
D/O. LATE BYRAPPA
W/O. SRI MUNISHAMAPPA
AGED ABOUT 78 YEARS,
R/AT SRIRAMPURA
JAKKUR POST, YELAHANKA HOBLI,
BENGLAURU -560 064.
12. SRI MUNEGOWDA
S/O. LATE SRI MUNIVENKATARAMANAPPA
AGED ABOUT 59 YEARS,
13. SRI MANJUNATH
S/O. LATE SRI MUNIVENKATARAMANAPPA
AGED ABOUT 56 YEARS,
SL.NOS. 12 & 13 ARE
R/AT DODDAGATTIGENAHABBE VILLAGE
-5-
NC: 2023:KHC:26469
MFA No. 2735 of 2023 C/W.
MFA No.2738 of 2023
HOSAKOTE TALUK
BENGALURU RURAL DISTRICT -562 114.
14. SRI ERANNA SWAMY
S/O. LATE NARAYANAPPA
AGED ABOUT 37 YEARS,
R/AT SRI YANGUNTE VILLAGE,
HOSAKOTE TALUK
BENGALURU RURAL DISTRICT -562 114.
15. SMT. VENKATA LAKSHMAMMA
D/O. LATE NARAYANAPPA
AGED ABOUT 33 YEARS,
R/AT CHEEMANGALA VILLAGE
SIDLAGHATTA TALUK
CHIKKABALLAPURA DISTRICT -562 102.
16. SRI CHANDRA
S/O. LATE NARAYANASWAMY,
AGED ABOUT 34 YEARS,
R/AT CHENNARAYAPATNA
VILLAGE AND POST,
DEVANAHALLI TALUK,
BENGALURU RURAL DISTRICT-562 135.
17. SMT. PADMAMMA
D/O. LATE MUNIVENKATARAMANAPPA
W/O. LATE CHENNAVEERAPPA
AGED ABOUT 64 YEARS,
R/AT MACHANDAHALLI VILLAGE,
HOSAKOTE TALUK
BENGALURU RURAL DISTRICT -562 114.
18. SMT. SHANTHAMMA @ LAKSHMAMMA
D/O. LATE MUNIVENKATARAMANAPPA
W/O. SRI MUNIYAPPA
AGED ABOUT 62 YEARS,
R/AT YELACHANDAHALLI,
HOSAKOTE TALUK
BENGALURU RURAL DISTRICT-562 114.
-6-
NC: 2023:KHC:26469
MFA No. 2735 of 2023 C/W.
MFA No.2738 of 2023
19. SMT. MEENAKSHI
D/O. LATE SRI MUNIVENKATARAMANAPPA
W/O. LATE MUNISHAME GOWDA
AGED ABOUT 57 YEARS,
R/AT SRIRAMPURA, JAKKUR ROAD,
BENGALURU-560 064.
20. SRI V. NAGARAJAPPA
S/O. LATE VENKATASWAMAPPA
AGED ABOUT 84 YEARS,
21. SRI N. KRISHNAMURTHY
S/O. V. NAGARAJAPPA
AGED ABOUT 63 YEARS,
SL.NOS.20 & 21 ARE
R/AT VENKATESHWARANAGAR
(KALLIPALYA), JAKKUR POST,
YELAHANKA HOBLI,
BENGALURU NORTH TALUK
BENGALURU -560 064.
22. SRI S.M. MUNIRAJU
S/O. MUNIYANNA
AGED ABOUT 50 YEARS,
R/AT NO.229/E, 2ND MAIN,
4th CROSS, TELECOM LAYOUT,
SRIRAMPURA, JAKKUR POST,
BENGALURU -560 064.
23. M/S. MITHUNA CONSTRUCTIONS PVT. LTD.,
HAVING ITS REGISTERED OFFICE AT
NO.1342, 5th FLOOR, SKANDA TOWERS,
DR. SHIVARAMAKARANTHA NAGAR,
M.C.E.H.S. LAYOUT, JAKKUR POST,
BANGALORE-560 064.
REPT. BY ITS MANAGING DIRECTOR
SRI HANUMANTHA
24. M/S. HASINI ACQUILINE DEVELOPERS LLP
HAVING ITS REGISTERED OFFICE AT
-7-
NC: 2023:KHC:26469
MFA No. 2735 of 2023 C/W.
MFA No.2738 of 2023
NO.102, 3rd CROSS,
BHUWANESHWARI NAGAR
C.V. RAMAN NAGAR,
BENGALURU-560 093.
REPT. BY ITS PARTNER
(i) SRI R. YOGISHWAR REDDY,
AGED ABOUT 41 YEARS,
S/O. KUMARASWAMY REDDY,
(ii) SRI B.N. NEETISH PURUSHOTTAMA
AGED ABOUT 32 YEARS,
S/O. M.T.B. NAGARAJ
25. SRI N. SUBRAMANI
S/O. V. NAGARAJAPPA
AGED ABOUT 52 YEARS,
26. SMT. VEENA
W/O. SRI N. SUBRAMANI
AGED ABOUT 43 YEARS,
SL. NOS.25 & 26 ARE RESIDING AT
VENKATESHWARA NAGAR,
JAKKUR POST, YELAHANKA HOBLI,
BENGALURU -560 064.
27. SRI BASAVARAJU
S/O. LATE NANJAPPA
AGED ABOUT 74 YEARS,
28. SMT. LAKSHMAMMA
W/O. BASAVARAJU
AGED ABOUT 70 YEARS,
SL.NOS.27 & 28 ARE
R/AT SAMPIGEHALLI
JAKKUR POST, YELAHANKA HOBLI,
BENGALURU-560 064.
...RESPONDENTS
-8-
NC: 2023:KHC:26469
MFA No. 2735 of 2023 C/W.
MFA No.2738 of 2023
(BY SRI C.M. NAGABUSHANA, ADVOCATE FOR R1 TO R10;
VIDE ORDER DATED 20.04.2023,
NOTICE TO R11 TO 28 IS DISPENSED WITH)
THIS MFA IS FILED UNDER ORDER 43, RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 10.04.2023 PASSED ON I.A.NO.2
IN O.S.NO.606/2021 ON THE FILE OF THE XLIII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH.44),
PARTLY ALLOWING I.A. NO.2 FILED UNDER ORDER XXXIX RULE
1 AND 2 READ WITH SECTION 151 OF CPC.
IN MFA NO. 2738 OF 2023:
BETWEEN:
1. SMT. K. LAKSHMIDEVAMMA
W/O. B. ANJINAPPA
AGED ABOUT 61 YEARS,
2. SRI MANJESH
S/O. LATE B. ANJINAPPA
AGED ABOUT 43 YEARS,
SL.NOS.1 & 2 ARE R/AT NO.127
2ND CROSS, MUNESHWARA TEMPLE ROAD,
SRIRAMPURA, JAKKUR POST,
YELAHANKA HOBLI,
BENGALURU -560 064.
3. SMT. KANCHANA
W/O. S.M. MUNIRAJU
AGED ABOUT 42 YEARS,
R/AT NO. 229E, 2nd MAIN
4th CROSS, TELECOM LAYOUT,
SRIRAMPURA, JAKKUR POST,
BANGALORE-560 064.
-9-
NC: 2023:KHC:26469
MFA No. 2735 of 2023 C/W.
MFA No.2738 of 2023
4. SMT. PAVITHRA NAVEEN KUMAR
W/O. NAVEEN KUMAR,
AGED ABOUT 41 YEARS,
R/AT NO.10/1
MANJUNATHA NILAYA,
CHAIRMAN KRISHNAPPA'S HOUSE,
2nd CROSS, 1st MAIN ROAD,
GORAGUNTE PALYA,
BANGALORE -560 022.
...APPELLANTS
(BY SRI GURUMATH G. RUDRAMUNI SHARMA, SENIOR
COUNSEL A/W. SRI THIMMEGOWDA N., ADVOCATE)
AND:
1. SMT. MUNITHAYAMMA
D/O. LATE BYRAPPA,
W/O. SRI. DYAVAPPA
AGED ABOUT 75 YEARS,
R/AT NO. 18, SRIRAMPURA VILLAGE,
JAKKUR POST, YELAHANKA HOBLI,
BENGALURU -560 064.
2. SRI E. RAMANNA
S/O. LATE EERAPPA
AGED ABOUT 59 YEARS,
R/AT NO. 177,
JYOTHIPURA VILLAGE,
MANDURU POST,
BENGALURU EAST TALUK
BENGALURU -560 049.
SRI M. NAGARAJ
S/O. LATE MARAPPA
SINCE DEAD REPRESENTED
BY HIS LRS,
3. SMT. N. PREMA
W/O. LATE M. NAGARAJ
AGED ABOUT 62 YEARS,
- 10 -
NC: 2023:KHC:26469
MFA No. 2735 of 2023 C/W.
MFA No.2738 of 2023
R/AT NO.368,
2nd MAIN ROAD, HEBBAL
BENGALURU -560 024
REP. BY HER GPA HOLDER
SRI CHANNAKRISHNAGOWDA D.,
4. SMT. MUNIYAMMA
D/O. LATE MARAPPA
W/O. RANGAPPA
AGED ABOUT 69 YEARS,
R/AT LAKKONDAHALLI,
HOSAKOTE TALUK
BANGALORE RURAL DISTRICT -562 129.
5. SMT. MUNIRATHNAMMA
@ RATHNAMMA
D/O. LATE MARAPPA
W/O. C. KRISHNAPPA
AGED ABOUT 61 YEARS,
R/AT GADDADANAYAKANAHALLI VILLAGE,
MADIBELE POST, DEVANHALLI TALUK
BENGALURU RURAL DISTRICT -562 135.
6. SMT. LALITHAMMA
D/O. LATE MARAPPA
W/O. PILLA NAJINE GOWDA,
AGED ABOUT 58 YEARS,
R/AT LAKKONDAHALLI,
HOSAKOTE TALUK -562 129.
BENGALURU RURAL DISTRICT
7. SMT. SARASWATHI
W/O. SATHISH CHANDRA
D/O. LATE VENKATAMMA
AGED ABOUT 47 YEARS,
8. SMT. MANJULA
D/O. LATE VENKATAMMA
W/O. K. SURESH
AGED ABOUT 44 YEARS,
- 11 -
NC: 2023:KHC:26469
MFA No. 2735 of 2023 C/W.
MFA No.2738 of 2023
SL.NOS.7 & 8 ARE R/AT NO.73,
KOTHANUR DINNE
J.P. NAGAR 8th PHASE,
CHURCH ROAD,
BENGALURU-560 078.
9. SMT. ROOPA
D/O. LATE VENKATAMMA
W/O. SONNAPPA
AGED ABOUT 41 YEARS,
R/AT NO. 84, 11TH 'C' CROSS,
BHUVANESHWARI NAGAR,
T. DASARAHALLI,
BENGALURU-560 057.
10. SMT. MAMATHA
D/O. LATE VENKATAMMA
W/O. V.N. RAMESH
AGED ABOUT 38 YEARS,
R/AT VAGATA VILLAGE,
HOSAKOTE TALUK
BENGALURU RURAL DISTRICT -562 114.
11. SMT. SAKAMMA
D/O. LATE BYRAPPA
W/O. SRI MUNISHAMAPPA
AGED ABOUT 78 YEARS,
R/AT SRIRAMPURA
JAKKUR POST,
YELAHANKA HOBLI,
BENGLAURU -560 064.
12. SRI MUNEGOWDA
S/O. LATE SRI MUNIVENKATARAMANAPPA
AGED ABOUT 59 YEARS,
13. SRI MANJUNATH
S/O. LATE SRI. MUNIVENKATARAMANAPPA
AGED ABOUT 56 YEARS,
- 12 -
NC: 2023:KHC:26469
MFA No. 2735 of 2023 C/W.
MFA No.2738 of 2023
SL.NOS. 12 & 13 ARE
R/AT DODDAGATTIGENAHABBE VILLAGE,
HOSAKOTE TALUK
BENGALURU RURAL DISTRICT-562 114.
14. SRI. ERANNA SWAMY
S/O. LATE NARAYANAPPA
AGED ABOUT 37 YEARS,
R/AT SRI YANGUNTE VILLAGE,
HOSAKOTE TALUK
BENGALURU RURAL DISTRICT-562 114.
15. SMT. VENKATA LAKSHMAMMA
D/O. LATE NARAYANAPPA
AGED ABOUT 33 YEARS,
R/AT CHEEMANGALA VILLAGE,
SIDLAGHATTA TALUK
CHIKKABALLAPURA DISTRICT -562 102.
16. SRI CHANDRA
S/O. LATE NARAYANASWAMY,
AGED ABOUT 34 YEARS,
R/AT CHENNARAYAPATNA
VILLAGE AND POST
DEVANAHALLI TALUK
BENGALURU RURAL DISTRICT-562 135.
17. SMT. PADMAMMA
D/O. LATE MUNIVENKATARAMANAPPA
W/O. LATE CHENNAVEERAPPA
AGED ABOUT 64 YEARS,
R/AT MACHANDHALLI VILLAGE,
HOSAKOTE TALUK
BENGALURU RURAL DISTRICT-562 114.
18. SMT. SHANTHAMMA @ LAKSHMAMMA
D/O. LATE MUNIVENKATARAMANAPPA
W/O. SRI. MUNIYAPPA
AGED ABOUT 62 YEARS,
R/AT YELACHANDAHALLI,
- 13 -
NC: 2023:KHC:26469
MFA No. 2735 of 2023 C/W.
MFA No.2738 of 2023
HOSAKOTE TALUK
BENGALURU RURAL DISTRICT-562 114.
19. SMT. MEENAKSHI
D/O. LATE SRI. MUNIVENKATARAMANAPPA
W/O. LATE MUNISHAME GOWDA
AGED ABOUT 57 YEARS,
R/AT SRIRAMPURA, JAKKUR ROAD,
BENGALURU-560 064.
20. SRI V. NAGARAJAPPA
S/O. LATE VENKATASWAMAPPA
AGED ABOUT 84 YEARS,
21. SRI N. KRISHNAMURTHY
S/O. V. NAGARAJAPPA
AGED ABOUT 63 YEARS,
SL.NOS.20 & 21 ARE
R/AT VENKATESHWARANAGAR
(KALLIPALYA), JAKKUR POST,
YELAHANKA HOBLI,
BENGALURU NORTH TALUK
BENGALURU -560 064.
22. SRI S.M. MUNIRAJU
S/O. MUNIYAPPA
AGED ABOUT 50 YEARS,
R/AT NO.229/E , 2ND MAIN,
4th CROSS, TELECOM LAYOUT,
SRIRAMPURA, JAKKUR POST,
BENGALURU -560 064.
23. M/S. MITHUNA CONSTRUCTIONS PVT. LTD.,
HAVING ITS REGISTERED OFFICE AT
NO.1342, 5th FLOOR, SKANDA TOWERS,
DR. SHIVARAMAKARANTHA NAGAR,
M.C.E.H.S. LAYOUT, JAKKUR POST,
BANGALORE-560 064.
REPT. BY ITS MANAGING DIRECTOR
SRI HANUMANTHA
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NC: 2023:KHC:26469
MFA No. 2735 of 2023 C/W.
MFA No.2738 of 2023
24. M/S. HASINI ACQUILINE DEVELOPERS LLP
HAVING ITS REGISTERED OFFICE AT
NO.102, 3rd CROSS,
BHUWANESHWARI NAGAR
C.V. RAMAN NAGAR,
BENGALURU-560 093.
REPT. BY ITS PARTNER
(i) SRI R. YOGISHWAR REDDY,
AGED ABOUT 41 YEARS,
S/O. KUMARASWAMY REDDY,
(ii) SRI B.N. NEETISH PURUSHOTTAMA
AGED ABOUT 32 YEARS,
S/O. M.T.B. NAGARAJ
25. SRI N. SUBRAMANI
S/O. V. NAGARAJAPPA
AGED ABOUT 52 YEARS,
26. SMT. VEENA
W/O. SRI. N SUBRAMANI
AGED ABOUT 43 YEARS,
SL. NOS.25 & 26 ARE RESIDING AT
VENKATESHWARA NAGAR,
JAKKUR POST, YELAHANKA HOBLI,
BENGALURU -560 064.
27. SRI. BASAVARAJU
S/O. LATE NANJAPPA
AGED ABOUT 74 YEARS,
28. SMT. LAKSHMAMMA
W/O. BASAVARAJU
AGED ABOUT 70 YEARS,
SL.NOS.27 & 28 ARE
RESIDING AT SAMPIGEHALLI
- 15 -
NC: 2023:KHC:26469
MFA No. 2735 of 2023 C/W.
MFA No.2738 of 2023
JAKKUR POST, YELAHANKA HOBLI,
BENGALURU-560 064.
...RESPONDENTS
(BY SRI C.M. NAGABUSHANA, ADVOCATE FOR R1 TO R10;
VIDE ORDER DATED 20.04.2023,
NOTICE TO R11 TO 28 IS DISPENSED WITH)
THIS MFA IS FILED UNDER ORDER 43, RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 10.04.2023 PASSED ON I.A.NO.1
IN O.S.NO.606/2021 ON THE FILE OF THE XLIII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH.44),
PARTLY ALLOWING I.A.NO.1 FILED UNDER ORDER XXXIX,
RULE 1 AND 2 READ WITH SECTION 151 OF CPC.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These two appeals are filed by the appellants challenging the order passed by the Trial Court on I.A.Nos.1 and 2 filed under Order 39, Rule 1 and 2 read with Section 151 of C.P.C., wherein I.A.No.1 is filed seeking for an order of temporary injunction restraining the defendant Nos.1 and 2 in alienating, encumbering or creating any charge over the application schedule property i.e., item No.1 of 'A' schedule property pending disposal of the suit and I.A.No.2 is filed seeking for an order of temporary injunction restraining the defendant Nos.1,
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NC: 2023:KHC:26469 MFA No. 2735 of 2023 C/W. MFA No.2738 of 2023 2, 16, 18, 15, 12, 19 and 20 or anybody claiming for and on their behalf from putting up any sort of construction over the application schedule properties i.e., item Nos.2, 3, 4 and 5 of 'A' schedule property pending disposal of the suit.
2. The Trial Court, having considered the pleadings of the parties, allowed I.A.No.1 and restrained the defendant Nos.1 and 2 from alienating, encumbering or creating any charge over item No.1 of the 'A' schedule property and partly allowed I.A.No.2 restraining the defendant Nos.1, 2, 16, 17, 18, 19 and 20 from putting up any construction over the item Nos.2, 3 and 5 of the plaint 'A' schedule property. Hence, these two appeals are filed before this Court.
3. Though the Trial Court passed a common order on the applications in I.A.Nos.1 and 2, the appellants have filed separate appeals challenging the same. However, since the Trial Court has passed a common order, the matters are taken up together for final disposal with the consent of learned counsel for both the parties.
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NC: 2023:KHC:26469 MFA No. 2735 of 2023 C/W. MFA No.2738 of 2023
4. The factual matrix of the case of the plaintiffs before the Trial Court while seeking the relief of partition prayed the Court to declare that the plaintiff Nos.1 and 2 are entitled to each 1/6th share and plaintiff Nos.3 to 10 are collectively entitled to 1/6th share in all the suit schedule properties and to declare that the suit schedule properties are the joint properties of the plaintiffs, defendant Nos.1, 3 and 4 to 11 and the suit schedule properties are in their joint possession and enjoyment and consequently, to effect partition of the suit schedule properties by metes and bounds and put the plaintiffs, defendant Nos.1, 3 and 4 to 11 in separate possession of their respective each 1/6th lawful share and further declare that the registered gift deed dated 04.09.2020 executed by defendant No.1 in favour of his wife and sale deed dated 26.09.2018 executed by defendant No.1 and others in favour of N. Subramani and Smt. Veena, sale deed dated 19.11.2003 executed by defendant No.1 and others in favour of V. Nagarajappa and N. Krishna Murthy, sale deed dated 30.12.1993 executed by defendant No.1 in favour of Basavaraju and his wife Smt. Lakshmamma and sale deed dated 22.08.2012 executed by defendant No.2 in favour of
- 18 -
NC: 2023:KHC:26469 MFA No. 2735 of 2023 C/W. MFA No.2738 of 2023 S.M. Muniraju i.e., defendant No.14 in respect of suit schedule properties are not binding on the shares of the plaintiffs.
5. It is the claim of the plaintiffs that the property originally belongs to Munibayamma and the same is acquired by her when the property was granted in the year 1957 and she died in the year 1990. It is the contention of the plaintiffs that she died intestate and not executed any testamentary document and any transaction made in favour of any other defendants is not binding on them. Hence, sought for the relief of partition.
6. The defendants appeared and filed the written statement contending that said Munibayamma executed Will on 15.06.1989 in favour of the defendant No.1 and he succeeded to the property of Munibayamma and executed the documents long back and the same has not been questioned even though the documents are executed in the year 1993, 2003, 2012 and 2018 and gift deed was executed by defendant No.1 in the year 2020 and after a long period, the suit is filed and suit is also barred by limitation and the plaintiffs are not entitled for the relief of temporary injunction not to alienate the suit schedule
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NC: 2023:KHC:26469 MFA No. 2735 of 2023 C/W. MFA No.2738 of 2023 properties and also not to construct and change the nature of the property by any of the defendants, till the disposal of the suit.
7. The Trial Court, having considered the averments of the plaint, objection statement, pleadings of the parties and also the applications and the affidavits filed in support of the applications by the plaintiffs, comes to the conclusion that there is no dispute with regard to the fact that property belongs to Munibayamma and also, no dispute with regard to the relationship between the parties that plaintiffs are the children and grand-children of Munibayamma and the defendant No.1 is the son of Munibayamma. The Trial Court considered each of the applications by framing independent points for consideration and comes to the conclusion that the property belongs to Munibayamma and also taken note of the earlier order passed by the Trial Court as well as the appeal filed before this Court in M.F.A.No.2955/2021 in respect of item No.4 of the property where the construction had already reached 90% and about 168 flats were constructed. In that background, this Court held that the defendant No.15 had
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NC: 2023:KHC:26469 MFA No. 2735 of 2023 C/W. MFA No.2738 of 2023 invested huge amounts and comes to the conclusion that other properties are vacant sites. In Para No.24, the Trial Court also comes to the conclusion that the documents are executed on 01.01.1996 by Rajanna and the very document was presented for registration before the Sub-Registrar on 08.12.1995 and the sale deed was registered on 22.04.1996. In the meanwhile, Rajanna re-sold the property by executing the sale deed dated 01.01.1996 in favour of defendant No.2 and also taken note of the sale consideration in the subsequent sale deed. However, it is the contention of the learned counsel for the plaintiffs that it is only a re-conveyance deed which was reconveyed by him pursuant to the sale deed executed by defendant No.1 in favour of Rajanna.
8. The Trial Court also discussed in Para Nos.21, 22 and 23 with regard to the issues involved between the parties and answered point Nos.1 and 3 that prima facie case is made out by the plaintiffs in respect of different items of the properties as sought in I.A.Nos.1 and 2 and comes to the conclusion that the property originally belongs to Munibayamma. However, the defendants have also relied upon
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NC: 2023:KHC:26469 MFA No. 2735 of 2023 C/W. MFA No.2738 of 2023 the other documents i.e., the suit in O.S.No.189/2009 filed by defendant No.1(a) seeking partition to which the plaintiffs are not the parties as observed in Para No.27 and comes to the conclusion that said decree is not binding on the plaintiffs and hence, allowed the applications in I.A.Nos.1 and 2, in coming to the conclusion that there is a prima facie case and balance of convenience in favour of the plaintiffs and if an order of injunction is not granted in favour of the plaintiffs, it will cause irreparable loss and hardship to the plaintiffs and granted the relief. Hence, these two appeals are filed by the appellants before this Court.
9. Learned counsel for the appellants in his argument would vehemently contend that the averments made in Para No.5 of the plaint is very specific that Munibayamma died in the year 1990. Upon the death of Munibayamma, the defendant No.1 being an intelligent person, made all his efforts to transfer the mutation of all the lands by misrepresenting the revenue officials. It is also pleaded with regard to the joint possession and enjoyment of the suit schedule properties having inherited the same from Munibayamma and the documents clearly
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NC: 2023:KHC:26469 MFA No. 2735 of 2023 C/W. MFA No.2738 of 2023 disclose that gift deed and mutations are accepted in favour of different defendants. When such being the case, the Trial Court ought not to have granted the relief in favour of the plaintiffs and the reason assigned by the Trial Court is not correct and the Trial Court committed an error in granting the relief. The counsel also brought to notice of this Court Para Nos.8 and 17 of the written statement, wherein it is specifically pleaded with regard to the right conferred upon the defendants and the very finding given by the Trial Court that the plaintiffs have made out a prima facie case is erroneous and the Trial Court has not considered the case putforth by the defendants and committed an error in allowing the applications.
10. The learned counsel for the appellants in his argument would vehemently contend that the very documents which the defendants have relied upon are old documents and the plaintiffs have slept over for a longer period of 30 years and the Trial Court also failed to take note of the observations made by this Court in M.F.A.No.2955/2021 in Para Nos.7 and 9(iii) and also contend that this Court set aside the injunction granted in respect of item No.4 and the said observation is also
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NC: 2023:KHC:26469 MFA No. 2735 of 2023 C/W. MFA No.2738 of 2023 not considered which is aptly applicable to the case on hand. In respect of item No.4 is concerned, injunction order granted by the Trial Court is set aside. Hence, these two appeals also requires to be allowed and the interim order granted by the Trial Court requires to be set aside.
11. Learned counsel for the appellants, in support of his argument, relied upon the judgment in T. ARIVANDANDAM VS. T.V. SATYAPAL AND ANOTHER reported in AIR 1977 SC 2421 and brought to notice of this Court Para No.5, wherein the Apex Court observed that from the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful - not -formal - reading of the plaint, it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7, Rule 11 C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clear drafting has created the illusion of a cause of action, nip it in the bud at the
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NC: 2023:KHC:26469 MFA No. 2735 of 2023 C/W. MFA No.2738 of 2023 first hearing by examining the party searchingly under Order 10 C.P.C. The counsel referring this judgment would vehemently contend that there is no cause of action for the suit filed by the plaintiffs and after a long period of 30 years, the documents are created and filed the suit which is nothing but vexatious.
12. The counsel also relied upon the judgment in MANDALI RANGANNA AND ORS. ETC. VS. T. RAMACHANDRA AND ORS. reported in AIR 2008 SC 2291 and brought to notice of this Court Para No.9, wherein the Apex Court discussed with regard to the order passed by the Trial Court and also the contentions taken by the respective counsels. Further, in Para No.10 of the order, it is observed that possession of a co-owner would be possession of the others and in that view of the matter, the respondents must be held to have been possessing the lands for the benefits of all the co-sharers. The fact that no mutation of the land has been effected is also a pointer to show that there was no final partition between the parties. The counsel also brought to notice of this Court Para No.11(iii), wherein it is observed that a large number of documents have been filed before the Court
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NC: 2023:KHC:26469 MFA No. 2735 of 2023 C/W. MFA No.2738 of 2023 below not only showing dealings with the properties but also showing execution of the deeds of lease, payment of corporation tax, income tax, capital gains tax etc., which clearly point out separate possession of the properties by the defendants. The counsel also brought to notice of this Court Para No.18, wherein also observed that while considering an application for grant of injunction, the Court will not only take into consideration the basic elements in relation thereto viz., existence of a prima facie case, balance of convenience and irreparable injury, it must also take into consideration the conduct of the parties. It is also observed that grant of injunction is an equitable relief. A person who had kept quiet for a long time and allowed another to deal with the properties exclusively, ordinarily would not be entitled to an order of injunction. The Court will not interfere only because the property is a very valuable one. We are not however, oblivious of the fact that grant or refusal of injunction has serious consequence depending upon the nature thereof. The Courts dealing with such matters must make all endeavours to protect the interest of the parties. The counsel would vehemently contend that the Court has to protect the interest of the
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NC: 2023:KHC:26469 MFA No. 2735 of 2023 C/W. MFA No.2738 of 2023 defendants and also the subsequent purchasers and since granting of temporary injunction is a equitable relief, the Court has to take note of the conduct of the parties while granting the discretionary relief.
13. The counsel also relied upon the judgment of this Court in V. ANIL REDDY VS. K. VENKATARAMANA REDDY AND OTHERS reported in 2017 (4) AKR 129 and brought to notice of this Court Para No.39, wherein is observed that while exercising the discretionary relief of injunction, the Court has to take into consideration not only the basic elements in relation thereto, but must also take into consideration the conduct of the parties. The counsel also relied upon Para No.41 of the judgment, wherein it is observed that according to the contesting defendants, there are series of transactions among the defendants and they have referred joint development agreements said to have been entered into between the parties. The same has to be adjudicated after trial.
14. The counsel relied upon the judgment in PADHIYAR PRAHLADJI CHENAJI (DEAD) BY L.R.S. VS. MANIBEN JAGMALBHAI (DEAD) BY L.R.S. reported in AIR
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NC: 2023:KHC:26469 MFA No. 2735 of 2023 C/W. MFA No.2738 of 2023 ONLINE 2022 SC 232 and brought to notice of this Court Para Nos.7 and 8.1. with regard to the limitation as well as the averment that the plaintiff would have to aver and prove that the suit is within the period of limitation as prescribed and in the absence of any averment or proof to show that the suit is within time, it is the plaintiff who would fail.
15. The counsel also brought to notice of this Court that in M.F.A.No.2955/2021, this Court while setting aside the order granted by the Trial Court in respect of item No.4 discussed in detail and brought to notice of this Court Para No.7 and also Para Nos.9(iii) and 10(iv) and also discussion made with regard to the filing of the suit and nature of the suit and contend that observations made in Para No.17 is aptly applicable to the case on hand. Hence, the very approach of the Trial Court is erroneous and it requires interference of this Court.
16. Per contra, learned counsel for the respondents in his argument would vehemently contend that though the defendants in Para No.27 of the written statement claim that there was a Will executed by Munibayamma in favour of defendant No.1 and the said document has not seen the light of
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NC: 2023:KHC:26469 MFA No. 2735 of 2023 C/W. MFA No.2738 of 2023 the day and the same is not produced either before the Trial Court or before this Court. The counsel would vehemently contend that, in the plaint, the plaintiffs have not pleaded anything about the dispute of the plaintiffs and when no such pleading in the plaint with regard to the dispute of the plaintiffs.
17. The counsel in support of his argument, relied upon the judgment in SMT. NANJAMMA VS. SMT. AKKAYAMMA AND OTHERS reported in 2014 SCC ONLINE KAR 1258 and brought to notice of this Court Para No.75, wherein it is observed that in the case of a property belonging to co- parcenary, joint family or co-ownership, possession of one co- parcener of a member of the joint family or a co-owner is the possession of all.
18. The counsel also in his argument would submit that when there is no dispute with regard to the relationship between the parties and also when the Will is not produced before the Court and the propositus has not executed any testamentary document, the Trial Court has not committed any error, since the plaintiffs are daughters of propositus
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NC: 2023:KHC:26469 MFA No. 2735 of 2023 C/W. MFA No.2738 of 2023 Munibayamma. The counsel also would vehemently contend that when the documents which have been executed i.e., in the gift deed and the sale deeds, there was no reference with regard to the Will and based on the Will, when they claim right, the same is suppressed and not produced before the Court and there is no reference in any of the document with regard to the execution of the Will and in the gift deed also, there is no reference and in the sale deed executed by defendant No.1 in favour of defendant Nos.17 and 18 and also in the Joint Development Agreement in favour of defendant No.16 in respect of item No.2, there is no reference. The counsel also would vehemently contend that though the document came into existence in favour of Rajanna on 21.09.1995, the same was presented for registration before the Sub-Registrar on 08.12.1995 and by that time, when the document was pending and the same was registered subsequently on 22.04.1996 and in the meanwhile, said Rajanna executed sale deed in favour of defendant No.2, the sale consideration mentioned in both the documents are one and the same and all these materials have been considered by the Trial Court in Para No.24 of the order.
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NC: 2023:KHC:26469 MFA No. 2735 of 2023 C/W. MFA No.2738 of 2023 When such being the case, the appellants have not made out any case to interfere with the findings of the Trial Court.
19. Having heard the learned counsel for the appellants and learned counsel for the respondents, the points that would arise for consideration of this Court are:
(1) Whether the Trial Court has committed an error in allowing I.A.Nos.1 and 2 granting temporary injunction against the defendants as sought in I.A.Nos.1 and 2 restraining the defendants from alienating the property or putting up any construction in item Nos.1 and 2 of the properties?
(2) What order?
Point No.(1)
20. Having perused the grounds urged in the appeals, the submissions of the respective counsel for the appellants and respondents and also the pleadings in both the plaint and the written statement filed by the defendants, it is not in dispute that property belongs to Munibayamma and none of the parties have disputed that property is not belonged to Munibayamma and also there is no dispute with regard to the
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NC: 2023:KHC:26469 MFA No. 2735 of 2023 C/W. MFA No.2738 of 2023 relationship between the parties. The suit is filed by the daughters of Munibayamma and also grand-children and defendant No.1 is the son, who claims that he is the only son to Munibayamma.
21. The records clearly disclose that he got transferred the khatha in M.R.No.9/91-92 in his name in the year 1991 claiming that he is the only son to Munibayamma. No doubt, there are documents which came into existence subsequent to executing the sale deed as well as gift deed executed by defendant No.1 and 2, no dispute with regard to the fact that Joint Development Agreement is executed by defendant No.2 in favour of defendant No.16 and also executed sale deed dated 26.09.2018 in favour of defendant Nos.17 and 18 in respect of item No.3 of the schedule property. When the property belongs to Munibayamma and she died intestate in the year 1990 and there is no testamentary document, however the defendants claims that Will was executed 1989 and the same is pleaded in the written statement but, no document before this Court or Trial Court. When such being the case and defendant No.1 also claims that he is the absolute owner in respect of the
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NC: 2023:KHC:26469 MFA No. 2735 of 2023 C/W. MFA No.2738 of 2023 property left by Munibayamma and when there is no dispute with regard to the relationship between the parties, the Court has to look into the said documents no doubt other documents of sale deeds and gift deed are executed and in respect of the very same documents, the relief is sought that those sale deeds and gift deed are not binding on the plaintiffs and with regard to the issue involved between the parties in respect of the sale deed as well as the limitation as urged by the learned counsel for the appellants, the same is a mixed question of fact and law and while granting the discretionary relief, the Court has to take note of whether there is a prima facie case and balance of convenience.
22. No doubt, the learned counsel for the appellants relied upon the judgments and considering the principles laid in the judgments referred (supra), the Court has to see whether the suit is vexatious and frivolous and whether there is any cause of action and right claimed by the parties is barred by law and these are the aspects which have to be considered during trial. While granting an order of injunction, the Court has to consider whether there is a prima facie case and balance
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NC: 2023:KHC:26469 MFA No. 2735 of 2023 C/W. MFA No.2738 of 2023 of convenience and if injunction is not granted, it causes hardship and the same has been considered by the Trial Court while considering the matter on merits since there is no dispute with regard to the fact that the property belongs to Munibayamma and even if any sale deed or document is created by defendant No.1 or by any other parties, the same has to be looked into while considering the matter on merits and prima facie, the material discloses that property belongs to Munibayamma and sale is not made by all the legal representatives Munibayamma and whether it is binding on the plaintiffs or not is once again a matter of trial.
23. With regard to the law of limitation urged by the learned counsel for the appellants, prima facie the material discloses that property belongs to Munibayamma and the defendant No.1 and his family members while executing the sale deed, excluded these plaintiffs and when there is no testamentary document though the same is claimed by the learned counsel for the defendants, the same has not seen the light of the day either by producing the same before the Trial Court or before this Court. This Court also, while considering
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NC: 2023:KHC:26469 MFA No. 2735 of 2023 C/W. MFA No.2738 of 2023 the appeal in M.F.A.No.2995/2021 in respect of item No.4, discussed in detail and also taken note of the fact that construction has reached 90% and about 168 flats were constructed and under the circumstances, allowed the appeal. But, in the case on hand, with regard to the other properties are concerned, the same are vacant properties and if any development work is undertaken, it will come in the way of right of the plaintiffs. Hence, the very contention of the learned counsel for the appellants cannot be accepted and the very contention that the Trial Court committed an error in granting an interim order of injunction while exercising the discretion and the same is not based on the material on record cannot be accepted and prima facie case has been made out by the plaintiffs that properties belongs to Munibayamma and there is no testamentary document with regard to the same and further, there is no reference with regard to the Will and the documents are allegedly executed by the defendant No.1 and his family members excluding the plaintiffs, who are the daughters of Munibayamma and also grand-children of Munibayamma. Hence, I do not find any error committed by the Trial Court in exercising the discretion in favour of the
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NC: 2023:KHC:26469 MFA No. 2735 of 2023 C/W. MFA No.2738 of 2023 plaintiffs by allowing I.A.Nos.1 and 2. Hence, the appellants have not made out any ground to set aside the order of the Trial Court.
24. The learned counsel for the appellants also relied upon the judgment in V. ANIL REDDY's case reported in 2017 (4) AKR 129, wherein it is observed that the parties cannot claim any equity. But, in the case on hand, the construction work is not yet started and only Joint Development Agreement is executed and when no material is placed with regard to the fact that construction has already commenced and they have invested the money, the contention of equity also cannot be considered. Hence, I do not find any error committed by the Trial Court in granting the relief and there is no merit in the appeals filed by the appellants. Accordingly, in answer point No.(1) as 'negative'.
Point No.(2)
25. In view of the discussions made above, I pass the following:
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NC: 2023:KHC:26469 MFA No. 2735 of 2023 C/W. MFA No.2738 of 2023 ORDER The appeals are dismissed.
Sd/-
JUDGE ST List No.: 1 Sl Nos.: 35 & 36