Karnataka High Court
Sri P Ibrahim vs Smt Jainabi on 21 November, 2017
Author: B.Veerappa
Bench: B. Veerappa
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF NOVEMBER, 2017
BEFORE
THE HON' BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION NO.47376/2017(GM-CPC)
BETWEEN:
SRI P. IBRAHIM,
AGED ABOUT 55 YEARS,
S/O LATE PODIMONU,
R/AT PARARI HOUSE,
P.O.UPPINANGADI,
UPPINANGADI KASABA VILLAGE,
PUTTUR TALUK, D.K. 574321. ... PETITIONER
(BY SRI DHANANJAY KUMAR, ADVOCATE)
AND:
1. SMT. JAINABI
AGED ABOUT 47 YEARS,
W/O ABDUL REHMAN,
R/AT GOWDASAG HOUSE,
KAUKRADY VILLAGE,
PUTTUR TALUK. D.K.-576322.
2. SMT. KULSU,
AGED ABOUT 61 YEARS,
R/AT GAUDSAG HOUSE,
KAUKRADY VILLAGE,
P.O. NELYADI,
PUTTUR TALUK. D.K.-576322.
3. SMT. ZOHRA,
AGED ABOUT 59 YEARS,
W/O ABBAS,
R/AT KUNDEVU HOUSE,
MAVINAKATTE,
MANINALKUR VILLAE AND POST,
2
BANTWAL TALUK,
D.K.DISTRICT-576327. ... RESPONDENTS
...
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DATED 28.7.2017 PASSED IN M.A. NO.18/2017 ON THE FILE OF
ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, PUTTUR, D.K.
AND CONSEQUENTLY QUASH THE ORDER DATED 7.11.2016
PASSED IN AI NO.II IN O.S.NO.531/2016 ON THE FILE OF
PRINCIPAL CIVIL JUDGE AND JMFC AT PUTTUR, D.K. VIDE
ANNEXURE-A AND H.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The defendant No.1 has filed the present writ petition against the order dated 28.7.2017 passed in M.A.No.18/2017 by the Additional Senior Civil Judge and JMFC., Puttur dismissing the appeal and confirming the order dated 7.11.2016 passed in O.S.No.531/2016 on I.A.II filed under Order XXXIX Rules 1 and 2 r/w Section 151 of the Code of Civil Procedure by the trial Court granting temporary injunction restraining the defendants from alienating or dispossessing the plaintiff from the suit schedule property, till the disposal of the suit.
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2. The 1st respondent, who is plaintiff filed a suit for declaration that the registered Release Deed dated 10.10.2001 is not genuine and not binding on her and for partition and division of 'B' schedule properties by metes and bounds and with reference to good and bad soil into four equal shares and to allot one such share to her contending that she is the sister of the defendants, relationship between them is morefully described in the 'A' schedule genealogy list to the plaint. The plaintiff and defendants together instituted a suit for partition of 'B' schedule properties in O.S.No.92/1994. Defendant No.1 instituted a suit on behalf of others. Thereafter a Final Decree Proceedings was initiated in FDP No.10/2001 and by the order dated 15.12.2011, 'B' schedule properties were jointly allotted and delivered in favour of the plaintiff and defendants.
3. It was the further case of the plaintiff that one of her sisters by name Kulsu and she filed a suit for 4 partition - O.S.No.144/2015 in respect of 'B' schedule properties. When the suit was pending, excluding the plaintiff all the plaintiff and defendants colluded together to sell that property to some third party and also decided to settle the matter between themselves except her (this plaintiff). When she understood the hidden story behind this matter, she did not agree for settlement. The matter was placed before the Lok Adalath on 9.7.2016 and on that date, the plaintiff in O.S.No.144/2015 filed a memo to dismiss the said suit as not pressed without giving a copy to her, even though she was a party to the said suit. Accordingly, on the basis of the memo the said suit came to be dismissed as not pressed and not on merits. Hence, the rights of the parties were not determined in the said suit. She was entitled to 1/4th share in the suit schedule properties, etc., and therefore, she filed a suit for the relief sought for.
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4. The defendant No.1 filed a written statement denying the plaint averments and contended that the suit filed by the plaintiff is not maintainable and hence, sought for dismissal of the suit.
5. During the pendency of the proceedings, the plaintiff filed an application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure for grant of temporary injunction restraining the defendants from alienating or dispossessing her from the suit schedule properties reiterating the averments made in the plaint. The same was disputed by the defendants reiterating averments made in the written statement.
6. The trial Court after considering the application and objections recorded a finding that the plaintiff has made out a case for grant of temporary injunction and balance of convenience is in her favour. Accordingly, by the order dated 7.11.2016 granted injunction restraining the defendants from alienating 6 the suit schedule properties till the disposal of the suit. Aggrieved by the said order, the defendants preferred an appeal before the Lower Appellate Court in M.A.No. 18/2017, the learned Judge after hearing both the parties by the order dated 28th July, 2017 dismissed the appeal confirming the order of the trial Court. Against the concurrent finding of fact recorded by the Courts below while granting injunction, the present writ petition is filed by defendant No.1.
7. I have heard the learned Counsel for the petitioner.
8. Sri Dhananjay Kumar, learned Counsel for the petitioner/defendant No.1 contended that the impugned order passed by the trial Court granting injunction to the plaintiff is erroneous and contrary to the material on record. He further contended that when the earlier suit was dismissed as withdrawn, question of filing second suit would not arise and the same is not maintainable. 7 Therefore, question of granting temporary injunction would not arise. Both the Courts below having considered the material on record have passed the impugned order which is erroneous and contrary to the material on record. Therefore, he sought to quash the impugned orders passed by Courts below by allowing the present writ petition.
9. Having heard the learned Counsel for the petitioner, it is not in dispute that the plaintiff filed the suit for declaration of registered Deed of Release dated 10.10.2001 - document which is not genuine, valid and binding on the plaintiff and to direct partition and division of 'B' schedule properties contending that the suit schedule properties are the joint family properties of plaintiff and defendants and there was no partition. The earlier suit was not decided on merits and it was dismissed as withdrawn at the instance of the memo filed by some of the plaintiffs in that suit and present 8 plaintiff is not the signatory to the said memo which was resisted by the defendants. The trial Court considering the entire material on record has recorded a specific finding that in the absence of release deed, the plaintiff admittedly is entitled for the legitimate share in the plaint 'B' schedule properties. Whether the Release Deed executed by the plaintiff is created or concocted by the defendant, has to be adjudicated after full fledged trial between the parties. Therefore, the plaintiff has made out a prima facie case and the balance of convenience is in favour of the plaintiff for granting temporary injunction. Accordingly, the trial Court granted temporary injunction on 7.11.2016.
10. On re-appreciation of the entire material on record, the Lower Appellate Court while concurring with the finding of fact recorded by the trial Court has recorded a finding that the plaintiff has specifically pleaded in the plaint that, defendant No.1 took the 9 power of attorney of the other parties to the suit and taking advantage of power of attorney, concocted the document called as Release Deed which comes to the knowledge of the plaintiff recently. When the matter had come to the knowledge of the plaintiff after obtaining record of rights that one of the sister of the plaintiff by name Kulsu and that plaintiff filed a suit in O.S.No.144/2015 for partition and separate possession of 'B' schedule properties. When the suit was pending excluding this plaintiff, all others colluded together to sell the plaint 'B' schedule properties to third party. Accordingly, the matter was placed before the Lok Adalath on 9.7.2016. On that day, the plaintiff filed a memo to dismiss the suit as not pressed without bringing to the notice of the present plaintiff even though she was a party to the suit.
11. The rights of the parties in the previous suit in O.S.NO.144/2015 is not determined. The share of 10 the plaintiff in the suit schedule properties had to be decided in the present suit. The contentions of the defendants that, the plaintiff as well as defendants executed Release Deed dated 10.10.2001 in favour of the 1st defendant by receiving consideration amount of Rs.2,25,000/- The plaintiff in her plaint made certain allegations against the defendants seeking 1/4th share in the 'B' schedule properties.
12. The Lower Appellate Court further has recorded a finding that in the absence of Release Deed, the plaintiff admittedly is entitled for her legitimate share in the plaint 'B' schedule properties. Whether the Release Deed is duly executed and consideration amount is passed has to be decided after full fledged trial. The allegation was made out by the plaintiff that O.S.No.144/2015 was withdrawn without her consent. The plaintiff filed certified copy of memo filed on behalf of plaintiff in O.S.No.144/2015 which revealed that one 11 of the plaintiff namely Kulsu had signed the said memo, but plaintiff has not signed the said memo. Therefore, the plaintiff is entitled to the interim relief as prayed for in the suit. Hence, the Lower Appellate Court dismissed the appeal confirming the order passed by the trial Court granting injunction restraining the defendants from alienating the suit schedule properties.
13. Both the Courts below have concurrently held that the plaintiff has made out a prima facie case for grant of temporary injunction based on the cogent and legal evidence on record. The petitioner-defendant No.1 has not made out any ground to interfere with the impugned order in exercise of powers under Article 227 of the Constitution of India. Accordingly, writ petition is dismissed.
Sd/-
Judge Nsu/-