Karnataka High Court
Smt Lalitha Poojarthi vs Smt Susheela on 13 August, 2024
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NC: 2024:KHC:32695
MFA No. 4486 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
MISCELLANEOUS FIRST APPEAL NO. 4486 OF 2024 (CPC)
BETWEEN:
SMT. LALITHA POOJARTHI,
W/O GOPALA POOJARY,
AGED ABOUT 81 YEARS,
R/AT THIRMALOTTU HOUSE,
NITTE VILLAGE, KARKALA TALUK,
UDUPI - 574 110.
...APPELLANT
(BY SRI. DHANANJAY KUMAR, ADVOCATE)
AND:
1. SMT. SUSHEELA,
W/O BABU POOJARY,
Digitally
signed by AGED ABOUT 80 YEARS,
MEGHA R/AT PEJATTABETTU HOUSE,
MOHAN
NALLUR POST, KARKALA TALUK,
Location:
HIGH COURT UDUPI -574 122.
OF
KARNATAKA
2. RAMANI,
W/O SADANANDA POOJARY,
AGED ABOUT 76 YEARS,
R/AT DARKAS HOUSE (KANASU),
BAJAGOLI POST, KARKALA TALUK,
UDUPI - 574 122.
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MFA No. 4486 of 2024
3. NAVEENA,
S/O SADNANDA POOJARY,
AGED ABOUT 54 YEARS,
R/AT DARKAS HOUSE (KANASU),
BAJAGOLI POST, KARKALA TALUK,
UDUPI-574122.
4. SAVITHA,
S/O SADANANDA POOJARY,
AGED ABOUT 42 YEARS,
R/AT DARKAS HOUSE (KANASU),
BAJAGOLI POST, KARKALA TALUK,
UDUPI-574122.
5. KUTTI POOJARY @ RAGHUNATH POOJARY,
S/O MENNU POOJARTHI,
AGED ABOUT 72 YEARS,
R/AT DARKAS HOUSE (KANASU),
BAJAGOLI POST, KARKALA TALUK,
UDUPI - 574122.
6. DAYANANDA POOJARY,
S/O MENNU POOJARTHI,
R/ AT VANDANA SMRUTHI,
B-10 NEAR GIRIJA MATA,
OLD DOMBIVILI WEST,
MUMBAI-421 201.
7. SHANTHA,
D/O MENNU POOJARTHI,
AGED ABOUT 64 YEARS,
R/AT PRARTHANA BUILDING,
ROOM NO.504, NEAR OLD FURNITURE MARKET,
DON BOSCO SCHOOL, BORIVALI WEST,
MUMBAI- 400092.
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MFA No. 4486 of 2024
8. AMBA,
D/O THIMMAPPA SUVARNA,
AGED ABOUT 62 YEARS,
R/AT THIRUMALOTTU HOUSE,
NITTE VILLAGE, KARKALA TALUK,
UDUPI-574110.
9. VASANTHA,
S/O THIMMAPPA SUVARNA,
AGED ABOUT 60 YEARS,
R/AT THIRUMOOTTU HOUSE,
NTTE VILLAGE, KARKALA TALUK,
UDUPI-574110.
10. NITHIN SUVARNA,
S/O SADANANDA POOJARY,
AGED ABOUT 41 YEARS,
R/AT DARKAS HOUSE(KANASU),
BAJAGOLI POST, KARKALA TALUK,
UDUPI-574110.
11. SRI. ARJUN KUMAR,
S/O ARUN KUMAR,
AGED ABOUT 40 YEARS,
R/AT YEMMEKERE VARNA,
23-10-813/3, BOLAR VILLAGE,
MANGALORE TALUK,
DK.-575001.
12. SMT. DIVYA ARJUN KUMAR,
W/O ARJUN KUMAR,
AGED ABOUT 35 YEARS,
R/AT YEMMEKERE VARNA,
23-10-813/3, BOLAR VILLAGE,
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NC: 2024:KHC:32695
MFA No. 4486 of 2024
MANGALORE TALUK,
D.K.575001.
...RESPONDENTS
(BY SRI. K. CHANDRAKANTH ARIGA, ADVOCATE FOR R11 AND
R12;
VIDE ORDER DATED 22.07.2024, NOTICE TO R1 TO R10 IS
DISPENSED WITH)
THIS MFA IS FILED U/S 104 READ WITH ORDER 43 RULE
1(R) OF CPC, PRAYING TO SET ASIDE THE ORDER DATED
23.11.2023 PASSED ON I.A.NO. 5 IN OS.NO.148/2022 ON THE
FILE OF THE SENIOR CIVIL JUDGE AND ACJM, KARKALA AND
ETC.,
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
ORAL JUDGMENT
Aggrieved by the order passed on I.A.No.5 in O.S.No.148/2022 dated 23.11.2023, the plaintiff/appellant is before this Court. The plaintiff had filed a said suit seeking partition of A-schedule property into three equal shares with reference to good and bad soil on the basis of the market value of the respective properties and allot and delivery 1/3rd such share to the plaintiff.
2. It is the case of the plaintiff that the plaint A-schedule properties are enjoyed by Mennu Poojarthi, -5- NC: 2024:KHC:32695 MFA No. 4486 of 2024 Thimmappa Suvarna and Lalitha Poojarthi as they have jointly obtained the suit schedule property under Chala-Geni right under one Sadhu Shetty Meldottu, Nitte and the said properties were in joint possession and enjoyment of the said three persons. Mennu Poojarthi, Thimmappa Suvarna died in several years ago and Lalitha Poojarthi is the plaintiff in the above suit and Mennu Poojarthi had five children they are defendants No.1, 5, 6, 7 and Sadananda, among them Sadananda died and defendants No.2 to 4 are his wife and children. Thimappa Suvarna had two children, they are defendants No.8 and 9 and the wife of Thimappa Suvarna also died.
3. It is their case that as per the Land Reforms Act, defendant No.5 had filed an application under Form No.7 in respect of the joint tenanted properties on behalf of all the family members and the Tribunal granted occupancy rights on 25.07.1979 in the name of defendant No.5 for and on behalf of the plaintiff and legal heirs. It is the case that they have been enjoying the properties jointly. The cause of action for the suit arose on last week of November, 2022, when the plaintiff demanded the partition and the same is refused by the defendant. Hence, they have come up with the present suit. -6-
NC: 2024:KHC:32695 MFA No. 4486 of 2024
4. In the suit, they have filed an interlocutory application not to alienate and the Court had granted an order. The written statement is filed by the said Kutti Poojary, wherein he has stated that he is having absolute right, title and interest and has a grant in his favour by the Land Reforms Tribunal and he has sold the property to defendants No.11 and 12 by way of the sale deed dated 04.11.2022. The suit is filed on 08.12.2022. By the time the suit is filed and injunction is granted, he has already sold the properties. According to him, property belongs to him and that property cannot be partitioned. Thereafter, the subsequent purchasers have filed I.A.No.5 and they have also sought a counter claim against the plaintiff seeking injunction. I.A.No.5 is filed seeking an order of temporary injunction restraining the plaintiff from trespassing into the property.
5. It is the case of the subsequent purchasers that in the year 2022 after they have purchased the property, they have been put in the possession of the property and the plaintiff is interfering with the possession of the defendant without any manner of right and title and hence, they sought for injunction.
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6. The trial Court by the order impugned, had allowed the application seeking interim injunction and also dismissed the application that is filed by the plaintiff seeking not to alienate as already property is alienated. The Court has observed that though it is argued by the learned counsel for the plaintiff that the plaintiff is in possession and enjoyment of the property by cultivating the land, throughout the plaint averments the plaintiff has only urged that they are in deemed possession of the property. The Court observes that by this version, it is very much clear that the documents relied upon by the defendants No.11 and 12, prevail over the oral arguments and the documentary evidence relied upon by the plaintiff. Therefore, the Court has come to the conclusion that by the date the suit is filed, property is already alienated.
7. The plaintiff had concealed the fact of purchase of the property by defendants No.11 and 12 and filed an application seeking a direction not to alienate and the Court has come to the conclusion that the defendant had made out a prima facie case and if the plaintiff interfere with their possession, it would cause irreparable loss to the defendants/purchasers and it would also cause inconvenience -8- NC: 2024:KHC:32695 MFA No. 4486 of 2024 and accordingly, the interlocutory application filed by the defendants No.11 and 12 under I.A.No.5 is allowed and the plaintiff is restrained from interfering with the possession of the defendants No.11 and 12. Aggrieved thereby, the plaintiff is before this Court.
8. Learned counsel appearing for the appellant/plaintiff submits that the property was granted in favour of Kutti Poojary i.e., defendant No.5 in favour of the entire family and he has no independent right to alienate the property. It is submitted that even though there is an order of injunction granted, the property is alienated by defendant No.5. It is further submitted that in the light of the orders passed by the Court granting injunction and on the strength of the said order, defendants No.11 and 12 are infact interfering with the possession of the plaintiff. It is submitted that unless the interim injunction that is granted is vacated, it would cause lot of hardship to the plaintiff and the appeal has to be allowed.
9. Learned counsel appearing for defendants No.11 and 12 submits that the property is the absolute property of defendant No.5 and it is not a joint family property. In that -9- NC: 2024:KHC:32695 MFA No. 4486 of 2024 case, the plaintiff cannot maintain the suit itself. It is submitted that admittedly the grant is in favour of Kutti Poojary who has sold the property in favour of defendants No.11 and 12 by taking an amount of Rs.21,72,000/-. It is submitted that having taken the amount, the possession was delivered and they have been in possession of the property. It is submitted that while seeking injunction, the defendants have already made out a prima facie case and the trial Court had rightly granted injunction and no grounds are made out seeking interference with the well considered order passed by the Court.
10. Having heard the learned counsels on either side, perused the material on record. The suit is filed seeking partition in respect of the property which is a grant by the Land Reforms Tribunal in respect of defendant No.5. According to the plaintiff that property is granted to defendant No.5 by the Tribunal in favour of the whole family and all the family members have a right and title to the property, hence they sought for partition. There is no dispute about the fact that the property stands in the name of Kutti Poojary and in the revenue records also his name is mutated. Kutti Poojary himself
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NC: 2024:KHC:32695 MFA No. 4486 of 2024 has filed a written statement and has stated that it is his property, he is the absolute owner and he had sold the property in favour of defendants No.11 and 12. Defendants No.11 and 12 in support of their case, have filed the registered sale deed and the written statement filed by the defendants shows that the possession is delivered to them. As far as plaintiff is concerned except stating that it is granted for the whole family, no other document is placed.
11. Considering the counter claim seeking injunction that is filed by the purchasers and while considering the application for interim injunction, the Court had considered the relevant aspects for grant of injunction and rightly granted injunction restraining the plaintiff from interfering with the counter claim schedule property till disposal of the suit. The trial Court had considered the parameters for grant of injunction and further, the plaintiff had failed to place any documents, whereas the defendant by placing the sale deed and the case of defendant No.5 had made out a prima facie case and this Court finds no reason to interfere.
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12. Accordingly, the appeal is dismissed. Pending I.As, if any, shall stand closed.
SD/-
(LALITHA KANNEGANTI) JUDGE MCR List No.: 1 Sl No.: 21