Karnataka High Court
Sri Syed Yusuf vs Sri Syed Noorulla on 16 March, 2017
Author: B.Veerappa
Bench: B. Veerappa
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF MARCH, 2017
BEFORE
THE HON' BLE MR. JUSTICE B. VEERAPPA
MISCELLANEOUS FIRST APPEAL No.7048/2016(CPC)
BETWEEN:
1. SRI SYED YUSUF,
AGED 76 YEARS,
S/O LATE SYED SALAR SAB,
PRESENTLY R/OF ACHALU VILLAGE,
SATHANUR HOBLI,
KANAKAPURA TQ,
RAMANAGARA DIST.
2. SRI SYED RASHEED AHMED,
AGED 63 YEARS
S/O LATE SYED SALAR SAB,
R/OF NO. 412, 3RD CROSS,
EJIPURA, VIVEKNAGAR POST,
BANGALORE-560 047.
... APPELLANTS
(BY SRI NARAYANA K., ADVOCATE)
AND:
1. SRI SYED NOORULLA,
AGED 66 YEARS
S/O LATE SYED SALAR SAB,
2. SRI SYED MUSHTAQ AHMED,
AGED 45 YEARS
S/O LATE S. K. AJEEZ,
3. SRI SYED ASFAQ AHMED,
AGED 51 YEARS
S/O LATE S. K. AJEEZ,
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4. SRI SYED ALTAF AHMED,
AGED ABOUT 51 YEARS,
S/O LATE S K AJEEZ
5. SRI SYED AFSAR,
AGED 51 YEARS
S/O LATE ABDUL AJEEZ,
RESPONDENTS 1 TO 5 ARE
R/OF ACHALU VILLAGE,
SATHANUR HOBLI,
KANAKAPURA TALUK,
RAMANAGARA DISTRICT.
6. SMT. ABHIYUNNISSA,
AGED 85 YEARS,
W/O LATE SRI SYED UMAL,
7. SMT. AKHILA JAN,
AGED 66 YEARS
W/O LATE MOHAMMED AFSAR,
RESPONDENTS 6 & 7 ARE
R/OF HONGANUR VILLAGE,
KASABA HOBLI,
KANAKAPURA TQ,
RAMANAGARA DISTRICT.
8. SRI M. K. KUMAR,
AGED 51 YEARS,
S/O LATE SRI KARI GOWDA,
R/AT "SANJANA NILAYA"
WEST OF BWSSB ROAD,
KANAKAPURA TOWN,
RAMANAGARA DIST.
9. SRI VARADE GOWDA,
AGED 46 YEARS,
S/O SRI BISLEGOWDA,
10. SMT. LAKSHMAMMA,
AGED 29 YEARS
W/O SRI VARADE GOWDA
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11. SMT. LAKSHMI,
AGED ABOUT 29 YEARS
W/O SRI KANAKADASA
RESPONDENTS 9, 10 & 11
R/OF JAKKEGOWDANADODDI,
HONGANUR VILLAGE, ACHALU DAKLE,
SATHANUR HOBLI, KANAKAPURA TQ,
RAMANAGARA DISTRICT.
... RESPONDENTS
(BY SRI G. M. SRINIVASAREDDY, ADVOCATE FOR C/R8 & R11)
.......
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
ORDER 43 RULE 1(r) R/W SEC.151 OF CPC, AGAINST THE
ORDER DATED 20.08.2016 PASSED ON I.A. IN O.S.NO.101/2015
ON THE FILE OF THE SENIOR CIVIL JUDGE, & JMFC,
KANAKAPURA, REJECTING THE APPLICATION FILED UNDER
ORDER 39 RULE 1 & 2 OF CPC.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This Miscellaneous First Appeal is filed by the plaintiffs against the order dated 20.8.2016 rejecting I.A.No.1 filed under Order XXXIX Rule 1 and 2 of Code of Civil Procedure made in O.S.No.101/2015 on the file of the Senior Civil Judge and JMFC, Kanakapura.
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2. The plaintiffs filed suit in O.S.No. 101/2015 for partition and separate possession in respect of item Nos.1 and 2 of the suit schedule properties contending that they are the joint family properties of plaintiffs and defendants 1 to 7 and they are entitled to a share etc. The contesting defendants filed written statement, denied the plaint averment and contended that there was panchayath palupatti in the year 1996 which was signed by the plaintiffs and defendants 1 and 2; and that other joint family properties are not included in the suit schedule and therefore suit for partial partition is not maintainable and sought for dismissal of the suit.
3. The plaintiffs filed an application for temporary injunction only in respect of item No.2 contending that 11th defendant seems to have purchased item No.2 she has been impleaded as a party and she is 5 trying to change the nature of the suit item No.2 etc and therefore, sought for temporary injunction. The said application was resisted by the defendants by filing objections.
4. The Trial Court, considering the entire material on record, by the impugned order dated 20.02.2016 has rejected the application. Hence the present appeal is filed.
5. I have hard the learned counsel for the parties to the lis.
6. Sri K.Narayana, learned counsel for the appellants/plaintiffs vehemently contended that the impugned order passed by the Trial Court rejecting the application for temporary injunction in respect of item No.2 is erroneous and contrary to the material on record. The plaintiffs filed the suit 6 claiming that the suit schedule properties are the joint family properties. If any alienation is made or the nature of the property is changed, the very purpose of filing the suit will be defeated and therefore, the Trial Court is not justified in rejecting the application and sought to set-aside the impugned order by allowing the appeal.
7. Per contra, Sri G.M.Srinivasa Reddy, learned counsel for the respondents 8 and 11 sought to justify the impugned order and strenuously contended that the very suit for partition is not maintainable since there was earlier partition in respect of the suit schedule properties and other properties by way of palupatti executed between the members of the joint family to which the plaintiffs and defendants 1 and 2 are signatories. Therefore, the application for temporary injunction is not 7 maintainable and the Trial Court has rightly rejected. Learned counsel further contended that the plaintiff filed two applications in respect of two survey numbers. The Trial Court rejected the application in respect of item No.2. So far as item No.1, application is still pending for consideration. It clearly indicates that plaintiffs have not come to the Court with clean hands and the Trial Court is justified in dismissing the application and therefore, sought to dismiss the appeal.
8. In view of the aforesaid rival contentions urged by the learned counsel for the parties, the only point that arises for consideration is:
"Whether the Trial Court is justified in rejecting the application for temporary injunction filed by the plaintiffs in respect of item No.2 of the suit schedule property, in the facts and circumstances of the present case?"8
9. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record, carefully.
10. It is an undisputed fact that the plaintiffs filed suit for partition and separate possession in respect of item Nos.1 and 2 of the suit schedule properties, contending that the suit schedule properties are the joint family properties of plaintiffs and defendants 1 and 2. Therefore, they are entitled to a share. The defendants denied the plaint averments by filing written statement and contended that the suit is not maintainable since there was partition in the year 1996 by way of palupatti and plaintiff and defendants are signatories to the said document. It was also contended that the suit filed for partial partition is not maintainable.
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11. The claim made by the plaintiffs that the properties are joint family properties and are entitled to a share and the defense in the written statement that there was earlier partition between the members of the family and that the plaintiffs and defendants are the signatories to the panchayath palupatti, is a matter of adjudication between the parties after full-fledged Trial.
12. The Trial Court considering the entire material on record, prima-facie recorded a finding that the plaintiffs have not made out a case to grant temporary injunction, they have to establish that the panchayath palupatti of the year 1996 is a fictitious document which was not acted upon by adducing cogent and convincing evidence since the prima-facie material goes to show that plaintiffs, defendants 1 and 2 are also signatories to the 10 panchayath palupatti. The subsequent partition of properties also shows that plaintiffs have partitioned the properties situated in Kanakapura town among their family members under a registered partition deed. Therefore, present suit filed only in respect of suit item Nos.1 and 2 which are conveyed in favour of defendants 8 and 11 smacks of malafides and ulterior motives and the approach of the plaintiffs is not clean and they have consciously suppressed previous partition and their claim against suit schedule item Nos.1 and 2 after the mortgage was redeemed by defendants 1 and 2 from the legal heirs of mortgagee.
13. The Trial Court further recorded a finding that malafide attempt of the plaintiffs is to claim over the properties which have fallen to the share of defendants 1 and 2. Accordingly, plaintiffs have 11 failed to make out a prima-facie case in their favour. The defendants 8 and 11 have invested huge amount and they are the bonafide purchasers for a value and if a restrictive order passed against them is continued, it causes irreparable loss and injury more for the defendants than the plaintiffs. The balance of convenience also does not swing in favour of the plaintiffs. Therefore, rejected the application.
14. The material on record clearly depicts that plaintiff has not made out a case for granting temporary injunction. Therefore, the Trial Court is justified in rejecting the application. Accordingly, the point raised for consideration has to be answered in the affirmative.
15. In view of the aforesaid reasons, the impugned order passed by the Trial Court is based on the 12 prima facie material. The same is in accordance with law. Appellants have not made out any ground to interfere with the same in exercise of appellate jurisdiction under Order 43 Rule 1(r) of Code of Civil Procedure. Accordingly, Appeal is dismissed.
16. However, it is needless to observe that any construction or any alienation made during pendency of the suit is always subject to the result of the suit in view of the provisions of Section 52 of the Transfer of Property Act. Any observation made by the Trial Court while disposing the application for temporary injunction and this Court while dismissing the appeal shall not come in the way of either of the parties to establish their case in accordance with law.
Sd/-
JUDGE kcm