Karnataka High Court
Smt Chandrika D Reddy vs Smt Vinaya B N Reddy on 10 January, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:1318
MFA No. 8799 of 2023
C/W MFA No. 8800 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 8799 OF 2023 (CPC)
C/W
MISCELLANEOUS FIRST APPEAL NO. 8800 OF 2023 (CPC)
IN MFA NO.8799 OF 2023:
BETWEEN:
1. SMT. CHANDRIKA D. REDDY
W/O LATE SRI H.K.DWARAKANATH REDDY,
AGED ABOUT 63 YEARS,
R/A NO.708-709, 'B' BLOCK,
KEERTHI SIGNATURE APARTMENTS,
ITPL MAIN ROAD, HOODI,
WHITEFIELD,
BANGALORE - 560048.
2. SMT. HARSHITHA DWARAK,
W/O K.V. KARTHIK REDDY,
Digitally signed
by SHARANYA T D/O LATE SRI H.K.DWARAKANATH REDDY
Location: HIGH AGED ABOUT 38 YEARS,
COURT OF R/AT NO.703, 'B' BLOCK,
KARNATAKA
KEERTHI SIGNATURE APARTMENTS,
ITPL MAIN ROAD, HOODI,
WHITEFIELD,
BANGALORE - 560048.
...APPELLANTS
(BY SRI. UDAYA HOLLA, SENIOR COUNSEL FOR
SRI VIVEK HOLLA, ADVOCATE)
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NC: 2024:KHC:1318
MFA No. 8799 of 2023
C/W MFA No. 8800 of 2023
AND:
1. SMT. VINAYA B.N. REDDY
W/O SANTOSH BALASUBRAMANYA,
D/O NARAYANA REDDY B.A.
AGED ABOUT 32 YEARS
2. SANTOSH BALASUBRAMANYA
S/O BALASUBRAMANYA,
AGED ABOUT 38 YEARS
BOTH R/AT NO.422,
5TH CROSS, 3RD 'B' MAIN ROAD,
3RD BLOCK, KALYAN NAGAR,
BANGALORE - 560043
...RESPONDENTS
(BY SRI. Y.R.SADASHIVA REDDY, SENIOR COUNSEL FOR
SRI RAHUL S. REDDY, ADVOCATE C/R1 & R2)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 19.12.2023 PASSED ON I.A. NO.1
IN O.S.NO.5881/2023 ON THE FILE OF THE XVI ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-12),
DISMISSING THE I.A. NO.1 FILED UNDER ORDER XXXIX RULE
1 AND 2 READ WITH SECTION 151 OF CPC.
IN MFA NO.8800 OF 2023:
BETWEEN:
1. SMT. CHANDRIKA D. REDDY
W/O LATE SRI H.K.DWARAKANATH REDDY,
AGED ABOUT 63 YEARS,
R/A NO.708-709, 'B' BLOCK,
KEERTHI SIGNATURE APARTMENTS,
ITPL MAIN ROAD, HOODI,
WHITEFIELD,
BANGALORE - 560048.
2. SMT. HARSHITHA DWARAK,
W/O K.V. KARTHIK REDDY,
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NC: 2024:KHC:1318
MFA No. 8799 of 2023
C/W MFA No. 8800 of 2023
D/O LATE SRI H.K.DWARAKANATH REDDY
AGED ABOUT 38 YEARS,
R/AT NO.703, 'B' BLOCK,
KEERTHI SIGNATURE APARTMENTS,
ITPL MAIN ROAD, HOODI,
WHITEFIELD,
BANGALORE - 560048.
...APPELLANTS
(BY SRI. UDAYA HOLLA, SENIOR COUNSEL FOR
SRI VIVEK HOLLA, ADVOCATE)
AND:
1. SMT. VINAYA B.N. REDDY
W/O SANTOSH BALASUBRAMANYA,
D/O NARAYANA REDDY B.A.
AGED ABOUT 32 YEARS
2. SANTOSH BALASUBRAMANYA
S/O BALASUBRAMANYA,
AGED ABOUT 38 YEARS
BOTH R/AT NO.422,
5TH CROSS, 3RD 'B' MAIN ROAD,
3RD BLOCK, KALYAN NAGAR,
BANGALORE - 560043
...RESPONDENTS
(BY SRI. Y.R.SADASHIVA REDDY, SENIOR COUNSEL FOR
SRI RAHUL S. REDDY, ADVOCATE C/R1 & R2)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 19.12.2023 PASSED ON I.A. NO.2
IN O.S.NO.5881/2023 ON THE FILE OF THE XVI ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-12),
DISMISSING THE I.A. NO.2 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:
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NC: 2024:KHC:1318
MFA No. 8799 of 2023
C/W MFA No. 8800 of 2023
JUDGMENT
Heard the learned counsel for the appellants and learned counsel for the respondents.
2. These two appeals are filed challenging the impugned order of rejection dated 19.12.2023 passed on I.A.Nos.1 and 2 filed under Order 39, Rule 1 and 2 of C.P.C. in O.S.No.5881/2023 on the file of XVI Additional City Civil and Sessions Judge (CCH-12) at Bengaluru.
3. The factual matrix of the case of the plaintiffs before the Trial Court while seeking the relief of declaration and mandatory injunction is that suit schedule property is allotted in favour of the plaintiffs in terms of the partition which took place among the members of the family and defendant Nos.1 and 2 started construction encroaching the property of the plaintiffs. Hence, they filed I.A.No.1 inter-alia seeking an order of temporary injunction restraining the defendants, their men, agents or anyone claiming through them or under them from putting up further constructions in the suit schedule 'C' property during the pendency of the suit and I.A.No.2 is filed seeking to grant an ad-interim order of temporary injunction -5- NC: 2024:KHC:1318 MFA No. 8799 of 2023 C/W MFA No. 8800 of 2023 restraining the defendants from encumbering the suit schedule 'C' property during the pendency of the suit.
4. The Trial Court, having considered the averments of the plaint, granted an ex-parte interim order in favour of the plaintiffs and issued summons to the defendants. Thereafter, the defendant Nos.1 and 2 appeared and filed their written statement and objections to the applications in I.A.Nos.1 and 2.
5. The defendant Nos.1 and 2 in the written statement denied the claim made by the plaintiffs to the extent of 20.1 guntas and contended that description of the property given in the schedule is not correct and the same is not in terms of the partition between the members of the family. It is also contended that Smt. H.K. Chanchala Devi, the mother of the defendant No.1, in turn executed a registered gift deed dated 30.09.2022 in respect of her share measuring 6.17 guntas in Sy.No.174/1A and since the date of the said gift deed, she has been in peaceful possession and enjoyment of the same and she has started construction of residential houses in the said property and the construction is nearing completion and one of the family members have obstructed or disputed the possession -6- NC: 2024:KHC:1318 MFA No. 8799 of 2023 C/W MFA No. 8800 of 2023 of the defendant No.1 or the construction. Now, all of a sudden, the plaintiffs have filed the above suit and making false allegation knowing fully well that since the date of partition deed dated 30.08.2000, all the family members are in possession of their respective shares. It is contended that after lapse of 23 years, the plaintiffs have filed the above suit for a wrongful gain. The plaintiffs have produced some documents of conversion and revenue documents which are created documents and no notice of survey was given to any of the sharers including the defendant No.1 while phoding the lands of the defendants.
6. The Trial Court, having taken note of the pleadings of the plaintiffs as well as the defendants in respect of the interlocutory applications filed, formulated the points whether the plaintiffs have made out a prima facie case in I.A.Nos.1 and 2, whether balance of convenience lies in favour of the plaintiffs in I.A.Nos.1 and 2 and whether the plaintiffs prove that if the temporary injunction is not granted, they will be put to irreparable injury and loss than the defendants. -7-
NC: 2024:KHC:1318 MFA No. 8799 of 2023 C/W MFA No. 8800 of 2023
7. The Trial Court, having considered the pleadings as well as the documents, comes to the conclusion that the documents which have been produced along with the plaint are not in consonance with the pleadings which have been pleaded in the plaint and comes to the conclusion that, on perusal of the schedule mentioned in the pleadings and the documents, there is a difference in the extent of property and the matter requires trial.
8. Being aggrieved by the order passed by the Trial Court on I.A.Nos.1 and 2, learned counsel appearing for the appellants would vehemently contend that there is no dispute with regard to the partition between the parties in respect of the property bearing Sy.No.174/1A. The counsel would vehemently contend that in terms of the said partition, an extent of 10,559.79 sq.ft. is allotted in favour of the plaintiffs and 6,727.50 sq.ft. is allotted in favour of Smt. H.K. Chanchala Devi. The counsel also would submit that subsequent to partition, the property is phoded and the property belonging to the plaintiffs is Sy.No.174/5 and the property which is allotted in favour of the mother of the first respondent is Sy.No.174/6 and brought to notice of this Court -8- NC: 2024:KHC:1318 MFA No. 8799 of 2023 C/W MFA No. 8800 of 2023 RTC as well as conversion order dated 28.04.2023. The counsel further submits that the respondents started construction without any plan and hence, notice was also issued by BBMP and an order is also passed. The counsel would submit that phodi is confirmed by the letter addressed by the mother of the first respondent and the Trial Court committed an error in rejecting the applications and brought to notice of this Court Para Nos.13 to 15 of the Trial Court, wherein an observation is made by the Trial Court that the suit schedule property is not included in the partition and the observation made by the Trial Court in Para No.12 is erroneous. The counsel also brought to notice of this Court Para No.13 of the Trial Court, wherein it is observed that an error is made that nowhere there is a mention about Sy.No.174/6 of Hoodi Village. The counsel would submit that Sy.No.174/6 is assigned only after the phodi and vehemently contend that the Trial Court while considering the material on record in Para Nos.14 and 15, committed an error in observing that comparing the property with the document of partition deed, item No.6 allotted to H.K. Dwarakanath Reddy in 'C' schedule is coming in Sy.No.174/1A. The very approach of the Trial Court is erroneous and committed an error in not -9- NC: 2024:KHC:1318 MFA No. 8799 of 2023 C/W MFA No. 8800 of 2023 considering the very documentary evidence which have been placed before the Court. Hence, it requires interference.
9. Per contra, learned counsel appearing for the respondents in his argument would vehemently contend that there is no dispute with regard to the partition. The counsel also brought to notice of this Court the description given in the schedule of the plaint which does not tally with the extent of property allotted in favour of the plaintiffs in the partition and included 20.1 guntas of land and no such land to the extent of 20.1 guntas was allotted in favour of the plaintiffs. The counsel also would vehemently contend that phodi was done at the instance of all the members of the family and the same is confirmed by the plaintiffs and the matter is yet to be finalized and against the said order of phodi, one of the family member namely, Sri H.K. Venugopala Reddy filed an appeal and the said appeal is also pending. The counsel would further submit that no right is given under the partition to the appellants in respect of an area for which the injunction is sought by the appellants and hence, they cannot seek the relief in respect of more extent of the property which was not allotted to the plaintiffs. The counsel also brought to notice of this Court Para No.16 of
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NC: 2024:KHC:1318 MFA No. 8799 of 2023 C/W MFA No. 8800 of 2023 the order of the Trial Court, wherein the Trial Court has taken note of the said fact and rightly comes to the conclusion that on perusal of the schedule mentioned in the pleading and the documents, there is difference in the extent of the properties and also made an observation that the said contention of the defendants needs trial. The Trial Court also taken note of balance of convenience in Para Nos.17 and 18 and discussed in detail with regard to the same and rightly rejected the applications.
10. Learned counsel appearing for the appellants in support of his contention, relied upon the judgment of the Madras High Court in VADIVEL MUDALIAR AND ANOTHER VS. PACHIANNA GOUNDER reported in AIR 1974 MADRAS 87 and relied upon Para Nos.9, 10 and 12, wherein it is held that while granting or refusing temporary injunction, if there is no discussion of documents, but mere reference to them and passing an order without considering the affidavit filed, such order is revisable.
11. The counsel also relied upon the judgment of this Court in VIRUPAXAPPA VS. REVANAPPA SIDDAPPA
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NC: 2024:KHC:1318 MFA No. 8799 of 2023 C/W MFA No. 8800 of 2023 GANIGAR & OTHERS reported in 1975 (2) KAR. L.J. 96, wherein it is observed that the order in question does not at all indicate that the learned Judge had applied his mind to such allegations contained in the affidavit filed in support of the application.
12. The counsel also relied upon the judgment of the Apex Court in ANAND PRASAD AGARWALLA VS.
TARKERSHWAR PRASAD AND OTHERS reported in (2001) 5 SCC 568 with regard to invoking Order 39, Rule 1 and 2 of C.P.C. while granting temporary injunction and brought to notice of this Court Para No.6, wherein it is held that when the contesting respondents were in possession as evidenced by the record of rights, it cannot be said that such possession is by a trespasser.
13. The learned counsel for the appellants referring the list of citations would contend that while granting the relief of temporary injunction, the Court has to consider the prima facie case and when the right is given to the plaintiffs under the partition, the Trial Court ought to have considered the applications in a proper perspective.
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NC: 2024:KHC:1318 MFA No. 8799 of 2023 C/W MFA No. 8800 of 2023
14. Having heard the learned counsel for the appellants and the learned counsel for the respondents and considering the material available on record i.e., the pleadings of the parties as well as the documents, the points that would arise for consideration of this Court are:
(1) Whether the Trial Court committed an error in dismissing the application in I.A.No.1 filed under Order 39, Rule 1 and 2 of C.P.C. in not granting the relief as sought in the said application?
(2) Whether the Trial Court committed an error in dismissing the application in I.A.No.2 filed under Order 39, Rule 1 and 2 of C.P.C.?
(3) What order?
Point Nos.(1) and (2)
15. Having heard the respective counsels, though the impugned order passed on I.A.No.2 is challenged before this Court in the appeal in M.F.A.No.8800/2023 on the ground that the Trial Court has not discussed anything about I.A.No.2 with regard to restraining the defendants from alienating the suit schedule property, the learned counsel appearing for the respondents undertakes before this Court that they will not
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NC: 2024:KHC:1318 MFA No. 8799 of 2023 C/W MFA No. 8800 of 2023 alienate the suit schedule property and the said undertaking given before this Court is noted. Hence, the question of considering the appeal in M.F.A.No.8800/2023 challenging the impugned order passed on I.A.No.2 does not arise.
16. Now, coming to the other appeal in M.F.A.No.8799/2023, the main contention of the learned counsel for the appellants is that there is a partition and subsequently, the property is phoded and the land is also converted in terms of the order dated 28.04.2023. It is the contention of the appellants that the defendants Nos.1 and 2 have taken up construction without plan and notice was also issued by the BBMP and as against the construction is concerned, already separate proceeding is initiated by the BBMP and the same is challenged by the respondents in a writ petition, wherein a direction was given and the said petition is under consideration.
17. With regard to the contention of the plaintiffs is concerned, it is the claim of the plaintiffs that the suit schedule property is allotted in favour of the plaintiffs in terms of the partition and there is no dispute with regard to the partition
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NC: 2024:KHC:1318 MFA No. 8799 of 2023 C/W MFA No. 8800 of 2023 among the family members. No doubt, it is clear that from the partition, to the extent of 10,559.79 is allotted in favour of the plaintiffs and 6,727.50 sq.ft. is allotted in favour of the mother of the first respondent. The defendants claim right in respect of the property which was allotted in favour of their mother Smt. H.K. Chanchala Devi based on the gift deed and they have taken up construction based on the same. The respondents dispute with regard to the phodi work is concerned contending that no notice was issued and there is a record with regard to the share allotted in Sy.Nos.174/5 and 174/6 in respect of the plaintiffs and the defendants. Though the learned counsel for the respondents would contend that an appeal is filed, the same is filed recently. The main contention of the learned counsel appearing for the appellants is that the Trial Court came to a wrong conclusion in Para Nos.12 to 14 of the order that the suit schedule property is not included in the partition. No doubt, the said observation is not correct, the document of partition is very clear to the extent of 10,559.79 sq.ft. which is allotted in favour of the plaintiff.
18. Learned counsel appearing for the respondents also brought to notice of this Court, when the suit is filed for the
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NC: 2024:KHC:1318 MFA No. 8799 of 2023 C/W MFA No. 8800 of 2023 relief of declaration and mandatory injunction and the schedule is shown to the extent of 20.1 guntas, the plaintiffs have not restricted the relief in respect of the property which was allotted in terms of the partition of the year 2000. But, learned counsel appearing for the appellants made an attempt to convince this Court that in the southern boundary, it is also mentioned as plus corporate land. However, the said contention cannot be accepted and the same is not included in the measurement and only for the purpose of identity of the property, it is mentioned in southern boundary as plus corporate land.
19. It is also important to note that, when the suit is filed seeking the relief of declaration, mandatory injunction and temporary injunction, the plaintiffs have to approach the Court with clean hands and the very description mentioned in the schedule 'A' property is not correct and no doubt, learned counsel appearing for the appellants brought to notice of this Court that relief is sought in respect of schedule 'C' property to the extent of 3,939 sq.ft., but when the claim is made to the extent of 20.1 guntas of land instead of 10,559.79 sq.ft. which
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NC: 2024:KHC:1318 MFA No. 8799 of 2023 C/W MFA No. 8800 of 2023 was allotted under the partition, the very approach of the plaintiffs is erroneous. The Trial Court also taken note of the pleadings as well as the documents which have been relied upon by both the parties. No doubt, there are factual error committed by the Trial Court observing with regard to the inclusion of the property in Para Nos.12 to 14 of the order, but in Para No.16, the Trial Court rightly comes to the conclusion that, on perusal of the pleadings as well as the documents, the same not tallies with the documents which have been produced. Hence, rejected the claim of the plaintiffs that the same not tallies. Learned counsel for the respondents also took a specific defence with regard to the description is concerned and the Trial Court has made an observation with regard to the said aspect that it is a matter of trial.
20. Having considered the reasons assigned by the Trial Court and considering the plaint, written statement as well as the contentions of the respective parties, when there is a dispute with regard to the area is concerned, when the plaintiffs are claiming the relief in respect of 20.1 guntas of land as mentioned in the plaint, there must be some documents to that effect and the same is not found in the material available on
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NC: 2024:KHC:1318 MFA No. 8799 of 2023 C/W MFA No. 8800 of 2023 record and when there is no prima facie material as to the extent what the plaintiffs are claiming, I do not find any error committed by the Trial Court in rejecting the application in I.A.No.1 and unless the case of the plaintiffs is very clear with regard to the extent of area mentioned in the plaint and relevant documents placed before the Court, the question of granting an order of temporary injunction without any prima facie material does not arise. Hence, the Trial Court has not committed any error in dismissing the applications in I.A.Nos.1 and 2. Accordingly, I answer point Nos.(1) and (2) in the 'affirmative'. Further, in view of the undertaking given by the respondents, the impugned order passed on I.A.No.2/2022 is not dealt with on merits.
Point No.(3)
21. In view of the discussion made above, I pass the following:
ORDER
(i) The appeal in M.F.A.No.8799/2023 is dismissed and the appeal in M.F.A.No.8800/2023 is allowed in part, in view of the undertaking given by the
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NC: 2024:KHC:1318 MFA No. 8799 of 2023 C/W MFA No. 8800 of 2023 respondents that they will not alienate the suit schedule property, till the disposal of the suit.
Sd/-
JUDGE ST List No.: 1 Sl No.: 26