Karnataka High Court
Sri Marappa B M vs Sri B M Patalappa on 28 September, 2018
Author: S G Pandit
Bench: S.G. Pandit
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF SEPTEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE S.G. PANDIT
WRIT PETITION NO.5772/2015 (GM - CPC)
Between:
Sri. Marappa B.M.
S/o. Late Munishamappa,
Aged about 57 years,
Residing at Byadarahalli,
Kundana Hobli,
Devanahalli Taluk, 562110
Bengaluru Rural District. ... Petitioner
(By Sri. Vivek Subba Reddy, Senior Advocate
alongwith Sri.R.Bramhananda for
Sri.Subba Reddy K.N, Advocate)
And
1. Sri.B.M Patalappa,
S/o. Late Munishamappa,
Aged about 67 years.
2. Sri. B.M. Krishnappa,
S/o. Late Munishamappa,
Aged about 48 years.
3. Smt. Anjinamma,
W/o. B.M. Patalappa,
Aged about 62 years.
Petitioner Nos.1 to 3 are
Residents of Byadarahalli,
2
Kundana Hobli,
Devanahalli Taluk,562110
Bengaluru Rural District.
4. Sri. M.Shashidhar,
S/o. V.Muniyappa,
Aged about 43 years,
Resident of Handiganata
Village, Kasaba Hobli,
Sidlaghatta Taluk,562101
Chikkaballapur District. ... Respondents
(By Sri. Abhinav.R for C/R1;
Sri. D.S. Vijayendra Reddy for R-2;
R3 & 4 - Served unrepresented)
This Writ Petition is filed under Articles 226 and 227
of Constitution of India praying to call for the entire records
in M.A.No.15029/2014 pending on the file of the learned 5th
Additional District and Sessions Judge, Devanahalli,
Bengaluru Rural District and entire records in
O.S.No.266/2013 on the file of the Senior Civil Judge,
Devanahalli, Bengaluru Rural District and etc.
This Writ Petition coming on for Preliminary hearing -
'B' Group, this day, the Court made the following:
ORDER
The petitioner is before this court under Article 227 of the Constitution of India assailing the concurrent findings of the trial Court as well as I appellate Court under order dated 08/08/2014 on I.A in O.S.No.266/2013 on the file of the Senior Civil Judge, 3 Devanahalli, Bengaluru Rural District and order dated 14/01/2015 in M.A.No.15029/2014 on the file of the V Additional District and Sessions Judge, Devanahalli, Bengaluru Rural District.
2. Petitioner is the plaintiff and respondents are defendants in O.S.No.266/2013, which is filed for judgment and decree seeking for partition and separate possession of 1/3rd share in all the suit schedule properties and to declare that the registered Gift deed dated 08/11/2012 executed by defendant No.1 in favour of defendant No.3 is not binding on the plaintiff's share. Along with the suit, plaintiff-petitioner filed application under Order 39 Rules 1 and 2 r/w Section 151 of CPC seeking an order of temporary injunction restraining the defendants from alienating or transferring the suit schedule properties in any manner till the disposal of the suit. On appearance, the defendants filed objections to the application I.A.No.1 4 and defendants also filed I.A.No.6 under Order 39 Rule 4 of CPC to vacate the ex-parte order of temporary injunction. The trial Court, on consideration of the application, by its order dated 08/08/2014, dismissed I.A.No.1 and allowed I.A.No.6 of the defendants and vacated the ex-parte temporary injunction. Aggrieved by the said order, the plaintiff filed M.A.No.15029/2014. The appellate Court, by its order dated 14/01/2015, rejected the appeal and confirmed the order dated 08/08/2014 passed in O.S.No.266/2013 on I.A.No.1 filed under Order 39 Rules 1 and 2 of CPC. Both the orders of the trial Court as well as the appellate Court are impugned in this writ petition.
3. Heard the learned Senior Counsel for the petitioner and learned counsel for the respondents and perused the writ papers.
4. Learned Senior counsel appearing for the petitioner submits that the suit for partition filed 5 includes seven items of the properties and contended that defendant No.1 purchased the properties on behalf of the joint family from the joint family nucleus. Further, he submits that there was a panchayath palupatti in the year 2005, which was unregistered and at the time of filing the suit, the said document has not been produced before the Court. The plaintiff and defendant Nos.1 and 2 are the children of late Munishamappa and defendant No.3 is the wife of defendant No.1. He further submits that the contention of the defendant No.1 is that some of the items of the suit schedule property are purchased under sale deed in the year 1967 are to be treated as gift deed instead of sale deed executed by Sri. Nanjundappa. Nanjundappa is the father-in-law of father of the plaintiff and defendant Nos.1 and 2. Further, it is contended that the defendants cannot plead inconsistently in that on the one hand they are claiming as self acquired property and on the other to treat as gift.
6
5. Per contra, learned counsel for the respondents-defendants submit that the petitioner is before this Court under Article 227 of the Constitution of India challenging the concurrent findings of the Court below. Further, he submits that the trial Court, by taking into consideration the material on record, has rightly held that the plaintiff has not made out prima facie case for grant of injunction under Order 39 Rules 1 and 2 of CPC. It is the further contention of the learned counsel for the respondents-defendants that the suit schedule properties are not the joint family properties.
6. Having heard both the learned counsel and after perusal of the records, the question which arises for consideration is whether the concurrent findings of the trial Court and appellant Court requires interference in the facts and circumstances of the case. 7
7. The suit is one for partition. The plaintiff and defendant Nos.1 and 2 are brothers, defendant No.3 is wife of defendant No.1. It is the case of the plaintiff that defendant No.1 had acquired properties on behalf of the joint family from the joint family nucleus. It is further case of the plaintiff that in the year 2005, there was a panchayat palupatti, which was not acted upon. On the other hand, the contention of the defendants is that it is not a joint family property. Whether it is the joint family property or it is a property purchased by defendant No.1 on behalf of the joint family from the joint family nucleus is a matter for trial. The trial Court, on examination of the material on record, has found that item Nos.7 and 11 properties were acquired through registered sale deed dated 06/07/1995 and 19/05/1999 and prima facie has found that the schedule property are self acquired properties of defendant No.1. It is further observed that the plaintiff has not produced any document, prima facie to show 8 that the properties were standing in the name of Late Munishamappa at any point of time to contend that it is the joint family property.
8. The trial Court prima facie has come to the conclusion that the plaintiff has not made out case to grant injunction. The appellate Court, on examination of the records has come to the same conclusion that plaintiff has not made out a prima facie case for grant of injunction. The unregistered Panchayath Palupatti is not produced before the Courts below and there was no occasion for the Courts below to look into the said document. Further, the appellate Court has observed that the plaintiff has not made out prima facie case to show that the suit properties are joint family properties. The appellate Court has protected the interest of both the parties by making observation that irrespective of any alienation they are entitled for share in the property 9 on the rule of "lis pendence", if the plaintiff succeeds in the suit.
9. The petitioner-plaintiff has not made out any ground to interfere with the concurrent finding of the trial Court as well as the appellate Court under Article 227 of the Constitution of India.
Accordingly, the question is answered in the negative and this writ petition is dismissed as devoid of merit.
Sd/-
JUDGE KG