Karnataka High Court
Sri Krishnappa vs Sri Sonnappa on 4 February, 2025
Author: K.Natarajan
Bench: K.Natarajan
-1-
NC: 2025:KHC:4977
MFA No. 8841 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
MISCELLANEOUS FIRST APPEAL NO. 8841 OF 2023 (CPC-)
BETWEEN:
SRI. KRISHNAPPA
S/O LATE MARAPPA,
AGED ABOUT 58 YEARS,
R/AT BAGALUR VILLAGE,
T. AGRAHARA VILLAGE,
YELIYUR POST,
CHANNARAYAPATNA HOBLI,
DEVANAHALLI TALUK,
BANGALORE DISTRICT - 562 110.
...APPELLANT
(BY SRI. VENKATACHALAPATHI S K., ADVOCATE &
SRI. A. VENUGOPAL, ADVOCATE)
AND:
1. SRI. SONNAPPA
S/O LATE MARAPPA,
Digitally signed by AGED ABOUT 65 YEARS,
VEDAVATHI A K
Location: High
Court of 2. SRI. ANIJINAPPA
Karnataka
S/O LATE MARAPPA,
AGED ABOUT 62 YEARS,
BOTH ARE R/AT T.AGRAHARA VILLAGE,
YELIYUR POST,
CHANNARAYAPATNA HOBLI,
DEVANAHALLI TALUK,
BANGALORE DISTRICT - 562 110.
...RESPONDENTS
(BY SRI. PRASANNA V R., ADVOCATE FOR R-1;
VIDE ORDER DATED:28/11/2024 NOTICE TO R2
DISPENSED WITH)
-2-
NC: 2025:KHC:4977
MFA No. 8841 of 2023
THIS MFA IS FILED U/O 43 RULE 1(r) R/W SECTION 151
OF CPC, AGAINST THE ORDER DATED:09.10.2023 PASSED ON
I.A.NO.II IN OS.NO.10/2023 ON THE FILE OF THE III
ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, DEVANAHALLI,
C/C OF II ADITIONAL SENIOR CIVIL JUDGE AND JMFC,
DEVANAHALLI, DISMISSING THE I.A.NO.2 FILED UNDER
ORDER 39 RULE 1 AND 2 OF CPC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE K.NATARAJAN
ORAL JUDGMENT
This appeal is filed by the appellant/plaintiff under Order 43 Rule 1(r) of CPC., for setting aside the order of the Trial Court in O.S.No.10/2023 dated 09.10.2023, for having rejected the application i.e., IA No.2 filed under Order XXXIX Rule 1 and 2 of CPC.
2. Heard the argument of both the counsels.
3. The case of the appellant is that, the appellant/plaintiff has filed the suit for partition and separate possession in respect of 30 guntas of land bearing Sy.No.55/11 said to be granted occupancy right in the name of the respondent No.1/defendant No.1 and as per their oral partition three brothers divided 10 guntas each. But the respondent No.1 got -3- NC: 2025:KHC:4977 MFA No. 8841 of 2023 mutated his name in the revenue records. Subsequently, the defendant No.2/respondent No.2 said to be filed appeal and considered the same the Assistant Commissioner cancelled the entries of the RTC which made only in the name of the defendant No.1. The respondent No.1 being aggrieved preferred appeal before the Deputy Commissioner Bengaluru Rural District, which said to be rejected by the Deputy Commissioner. Thereafter the defendant No.1 has filed the Writ Petition before the High Court, this court set aside the orders of the Tahasildar and directed the parties to work out the remedy in the Civil Court. Accordingly, the plaintiff filed the suit for partition and separate possession in respect of the schedule property.
4. The appellant/plaintiff also filed IA No.2 under Order XXXIX Rule 1 and 2 of CPC., directing the defendant No.1 not to alienate or create any third party interest over the schedule property, which came to be dismissed. Hence, the plaintiff filed the appeal before this court for setting aside the order.
5. Learned counsel for the appellant submits that there was landed property among the family members, they said to -4- NC: 2025:KHC:4977 MFA No. 8841 of 2023 be partitioned on 26.08.1996 and this property not included in the partition. Subsequently, the occupancy right was granted by the State in the name of the defendant No.1, who is the kartha of the family. And as per the oral partition 10 guntas of each shared by all three brothers. Later respondent No.1 denied the same by filing the application for changing the khatha. Therefore, the plaintiff constrained to file the suit for partition of the schedule property and in order to protect the interest of the parties the property shall be protected by granting injunction not to alienate the schedule property but the Trial Court committed an error in dismissing the application. The plaintiff made out prima facie case in his favour and balance of convenience lies in his favour, if the temporary injunction is not granted irreparable loss will be caused to the plaintiff. Hence, prayed for allow the appeal.
6. Whereas the respondent counsel contended that there was a partition in the year 1996, which is registered partition, there is no reference in the partition deed that the suit land was cultivating jointly, or in joint possession or it will shared in future. But the application filed by the defendant No.1 only in the year 1999 and the same was granted by the State in favour -5- NC: 2025:KHC:4977 MFA No. 8841 of 2023 of the defendant No.1 on 25.01.2022. The defendant No.2/respondent No.2 filed appeal and considering the same the Assistant Commissioner cancelled the entries in the RTC which made only in the name of the defendant No.1. The respondent No.1 being aggrieved preferred appeal before the Deputy Commissioner, Bengaluru Rural District, which said to be rejected by the Deputy Commissioner. Thereafter the defendant No.1 has filed the Writ Petition before the High Court, this court set aside the orders of the Tahasildar and directed the parties to work out the remedy in the Civil Court. However, it is also contended by the respondent counsel that respondent already filed suit in OS.No.562/2012, before the Civil Judge, JMFC, Devanahalli, where this appellant also party, and contesting the matter by denying the relationship by suppressing the fact and filed the present suit. If at all any claim over the property they could have file a counter claim in the same suit or claiming the any share in the property, without doing so suppressing the fact by filing the suit trying to grab the order which is not permissible. Hence, prayed for dismissing the appeal.
-6-
NC: 2025:KHC:4977 MFA No. 8841 of 2023
7. Having heard the arguments and perused the records which reveals that the relationship between the appellant and the defendants is not in dispute. It is also not in dispute that there was a partition among all three brothers on 26.08.1996, which is a registered partition between them. It is also admitted there is no reference in the registered partition but the suit schedule property is in occupation of the family members since long and there is no right granted by the State in their favour and any future partition. Admittedly, by producing some document the defendant No.1 got mutated their name in the revenue record which was challenged by the respondent No.2 and got set aside the name of the respondent No.1 in the RTCs. Of course the right of the property should be work out by the Civil Court by filing the appropriate suit. However, while filing the suit by the plaintiff in OS.No.10/2023 before the Trial Court he has not mentioned the suit already filed by the respondent in OS.No.562/2012, for declaration and injunction, where the plaintiff also party in the said suit and it is contesting. Admittedly, these plaintiff has not claimed any counter claim by way of partition in the said suit, they contested by denying the relationship of the parties. The suit -7- NC: 2025:KHC:4977 MFA No. 8841 of 2023 already filed by the respondent, all the revenue records mutated in the name of the respondent No.1 and occupancy right also granted in the name of the respondent No.1/defendant No.1. Such being the case there is no prima facie case made out by the plaintiff in his favour at the this stage in order to grant any relief.
8. Apart from that when the respondent already filed the suit, they are defending the case in the earlier suit and they are not stated about the said fact in the present suit. And as soon as they filed a fresh suit and it is claimed that the occupancy right was granted in the name of the respondent No.1 who is the kartha of the family. Therefore, the plaintiff is entitle for the share. But it should not be forgotten the joint family was already severed by way of registered partition in the year 1996 itself. When the application came to be filed by the respondent in the year 1999 and occupancy right granted in the year 2002. Such being the case there is no balance of convenience lies in favour of the plaintiff for granting the relief.
9. In respect of the irreparable loss, when the partition already held between the parties and if at all any claim over the -8- NC: 2025:KHC:4977 MFA No. 8841 of 2023 property, the plaintiff required to prove the case in the court of law that the land was granted in favour of the joint family but not the individual name of the defendant No.1. And the land is sold or alienated it will cause irreparable loss. When the property was already partitioned between the parties, there is no reference in the partition deed. Such being the case even if the injunction is not granted it cannot be said irreparable loss will be caused to the defendant No.1. That apart a case is already pending before the Civil Court in OS.No.562/2012, such being the case it is not the fit case for granting any injunction as sought by the plaintiff. Therefore, considering the aspect the Trial Court rightly dismissed the application without granting any injunction. Therefore, nothing to interfere in the order passed by the Trial Court. There is no perverse in the order to interfere by this court. Hence, the appeal is devoid of merits.
Accordingly, the appeal is dismissed.
Sd/-
(K.NATARAJAN) JUDGE SRK/-List No.: 1 Sl No.: 20 CT:SK