Karnataka High Court
A.Rajendra Kodgi vs A Sudhir Kodgi on 20 January, 2024
Author: H.P. Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A. NO.6172/2021 (CPC)
BETWEEN:
1. A.RAJENDRA KODGI
S/O LATE A.CHANDRASHEKAR KODGI
AGED ABOUT 50 YEARS
R/AT FLAT NO.602
"KODGI, SAI SADAN"
POST KUNJIBETTU INDRALI
UDUPI TALUK AND DISTRICT-576102
AND ALSO RESIDING AT
A.RAJENDRA KODGI VILLA NO.84
SAI RADHA GREEN VALLEY
MANIPAL PERAMPALLI ROAD
UDUPI TALUK AND DISTRICT
PIN CODE - 576102
2. DR. RESHMA K.,
AGED ABOUT 38 YEARS
W/O A. RAJENDRA KODGI
VILLA NO.84,
SAI RADHA GREEN VALLEY
MANIPAL PERAMPALLI ROAD
UDUPI TALUK AND DISTRICT-576102. ... APPELLANTS
(BY SRI JAYAKUMAR S. PATIL, ADVOCATE)
AND:
1. A. SUDHIR KODGI
S/O LATE A.CHANDRA SHEKAR KODGI
2
AGED ABOUT 46 YEARS
R/AT "GURU KRIPA"
HAYAGREEVA NAGAR, INDRALI
POST: KUNJIBETTU
UDUPI TALUK AND DISTRICT
PIN CODE - 576102
2. A. NANDAGOPALKODGI
S/O LATE A. CHANDRA SHEKAR KODGI
AGED ABOUT 48 YEARS
R/AT "GURU KRIPA"
HAYAGREEVA NAGAR INDRALI
POST KUNJIBETTU
UDUPI TALUK AND DISTRICT
PIN CODE - 576102
3. GOPALKRISHNA BHAT
DIRECTOR TRISHA VIDHYA
COLLEGE OF COMMERCE
AND MANAGEMENT, VASUKI TOWERS
MISSION HOSPITAL ROAD
UDUPI TALUK AND DISTRICT-576102. ... RESPONDENTS
(BY SRI G.BALAKRISHNA SHASTRY, ADVOCATE;
SRI B.L.ACHARYA, SENIOR COUNSEL FOR
SRI KISHOR B.K., ADVOCATE FOR R1
VIDE ORDER DATED 16.12.2021
NOTICE TO R2 & R3 IS DISPENSED WITH)
THIS M.F.A. IS FILED U/O 43 RULE 1(r) OF CPC, AGAINST
THE ORDER DATED 24.09.2021 PASSED ON I.A.NO.2 IN
O.S.NO.34/2020 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE
AND CJM UDUPI, ALLOWING THE I.A.NO.II FILED UNDER ORDER
39 RULE 1 AND 2 R/W SECTIONS 94 (e) AND SECTION 151 OF
CPC.
THIS M.F.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 16.1.2024 THIS DAY, THE COURT PRONOUNCED
THE FOLLOWING:
3
JUDGMENT
Heard the learned Senior counsel for the appellants and learned Senior counsel for the respondent No.1.
2. This miscellaneous second appeal is filed under Order 43, Rule 1(r) of Code of Civil Procedure challenging the impugned order passed on I.A.No.II dated 24.09.2021 allowing the application and restraining the appellants from alienating, encumbering or creating charge over the plaint 'A' and 'B' schedule properties or any portion there of, till the disposal of the suit.
3. The factual matrix of the case of the respondent No.1/plaintiff before the Trial Court in the suit filed for the relief of partition and separate possession is that, defendant Nos.1 and 2 are his brother. 'A' and 'B' schedule properties belong to their joint undivided family. The suit schedule properties which were inherited by their ancestors and some of the items of family properties are sold for a valuable consideration by the family members and the sale proceeds derived from family properties are invested in the lands and shares by the family for the benefit 4 and welfare of their entire undivided joint family. The funds derived from the family properties on the sale proceeds and other ancestral nucleus, they purchased the properties described in 'A' schedule.
3. The defendant No.1 being the eldest member and yajaman of the joint family is managing the family properties. Either himself nor defendant Nos.1 and 2 have no independent source of income other than family income and have fully dependent on the income derived from the family properties. Defendant No.1 is maintaining and supervising the entire family properties with regard to construction of apartment with the assistance of him and defendant No.2. It is contended that the defendant No.1 himself participated in all the sale transactions of the family properties and entire sale proceeds are invested to acquire properties described in 'A' schedule properties on behalf of entire family. Even the properties are purchased in his name, the defendant Nos.1 and 2 as per their convenience and the entire fund to purchase the properties used out of the income derived from the family properties, therefore, all the schedule 5 properties are joint family properties. It is also contended that for convenience and for management of the family and their properties smoothly, himself and defendant No.2 have executed general power of attorney in good faith. In the beginning of 2017, the defendant No.1 has started to misappropriate the family funds, in order to get wrongful gain to himself by defrauding him and defendant No.2. After they came to know the illegal and unlawful intention of defendant No.1, they constrained to cancel the power of attorney by issuing notice dated 04.03.2017 by registered post to his permanent residential address and also by way of paper publication. Prior to issuing legal notice to cancel the power of attorney executed by him, himself and defendant No.2 have orally informed the defendant No.1 that he should not do any acts on their behalf on the strength of said power of attorney. Therefore, from the date of notice about cancellation of power of attorney, defendant No.1 has no right or authority to represent on their behalf in respect of the suit schedule properties or any properties belongs to their family. Even though the said power of attorney is cancelled and 6 if he performs any acts on the said power of attorney, such act or things would not be binding on them.
4. It is also the case of the plaintiff that defendant No.1 leased out the premises bearing item No.4 of the plaint 'A' schedule premises on a monthly rent of Rs.1,08,333/- to defendant No.3 and collecting monthly rent and misappropriated the said money. Without their consent, defendant No.1 schemed to construct building in item Nos.1 and 2 of the plaint 'A' schedule properties, in order to damage the family properties. If he carries out the same, it would materially affect the enjoyment of the joint family. If defendant No.1 alienates the suit schedule properties and if he succeeds in his illegal acts, he will be put to great financial loss, hardship and irreparable injury and their right will be invaded by the illegal acts. Hence, prayed the Court to grant an interim order of temporary injunction to restrain the defendant No.1 from alienating the properties.
5. The application has been resisted by defendant No.1 by filing a memo adopting the written statement as his objections to the I.A. and contended that his father late 7 A. Chandrashekar Kodgi was an employee of Syndicate Bank drawing a gross salary of Rs.10,000/- at the time of his retirement in the month of November, 1994. While retiring from the services, he has received a meager amount of Rs.1,58,000/- as his retirement benefits and he has no other source of income and had debts to repay. He also acquired properties at Kundapura Taluk on partitioning separate and individual properties of his father A. Sarvothamaraya Kodgi as one of his heirs as per registered partition deed dated 01.10.1965 after coming into force of Hindu Succession Act. However, late A. Chandrashekar Kodgi sold his self-acquired and separate properties in view of repayment of his borrowings and getting his second daughter's marriage during 1992 for a consideration of Rs.1,96,000/- and the sale proceeds was utilized by him for repaying his outstanding loan amount and thereby, exhausted the entire sale proceeds. Though he was receiving pension from 1998, the same was insufficient for meeting his medical expenses, since he was an heart patient, who had undergone coronary artery by-pass surgery during August, 1994 and after his retirement in the month of November, 1994, all the 8 household expenses have been met by him as a responsible son of his parents. He was earning income from land dealing brokerage business, vehicle dealings, medical records drafting jobs, construction, trading and investments made in shares and savings made in bank deposits. After acquisition of item No.5 of 'A' and 'B' schedule properties which are agricultural properties, he had been receiving agricultural income from sale of medicinal plants such as insulin plants, aloe-vera etc., and Mexican grass and other agricultural crops grown on the said properties. He was staying in Bengaluru from 2007 after the death of his father and thereafter, started residing at Mangalore after his marriage in May, 2014 with his wife. However, he was regularly visiting and staying in Gurukripa house looking after his sick mother, who expired during May 2016 and his sisters are residing separately.
6. It is contended that item Nos.1 and 2 of the plaint 'A' schedule properties though purchased in the joint names of plaintiff, defendant No.2 and himself, but the entire sale consideration amount of Rs.28,75,000/- was solely paid by him 9 from his individual capacity out of his individual income i.e., agricultural income received from agricultural lands and from the accrued income, borrowings and savings which was paid by way of cheques to the vendors as shown in the sale deed. It is contended that after purchase, he alone has been in possession and enjoyment of said properties as absolute owner, wherein plaintiff and defendant No.2 are very much aware that their names were nominally included in the sale deed with a specific understanding and not conferring any joint right on them. The plaintiff and defendant No.2 have executed general power of attorney dated 19.03.2012 by appointing him as their true and lawful attorney and empowering to release/relinquish their undivided right and interest in the joint family properties. After execution of release deed, plaintiff and defendant No.2 also given their consent letters and no objection for releasing their undivided right and interest in the joint properties in his favour. On the basis of said general power of attorney dated 19.03.2012, which was in force on the date of execution of release deed dated 07.03.2017 and consent letters are also given by them and he being an agent and power of attorney of 10 plaintiff and defendant No.2, got executed the said release deed dated 07.03.2017. On the basis of said release deed, khatha mutated and RTC is standing in his name as an absolute owner of item Nos.1 and 2 of 'A' schedule properties. Without challenging the cancellation of release deed, the suit is not maintainable in respect of item No.3 also which is a flat purchased by him in his individual capacity out of his self- earnings. The consideration amount of Rs.37,75,000/- was paid by him which is his self-earned money and also settlement deed was executed in favour of his wife on 28.11.2006 itself.
7. It is also the case of the plaintiff that, he had availed Rs.77,00,000/- loan by mortgaging item Nos.1 and 2 of 'A' schedule properties and the said loan is now subsisting. The claim for partition without challenging the recitals of sale deed and without seeking cancellation decree is set aside the settlement deed executed by him in favour of his wife is not maintainable. It is also his case that he had purchased 1/3rd undivided right over the terrace portion known as Vasuki tower situated in Badagabettu Village, Udupi with a right to construct 11 second floor out of his personal funds and the sale consideration is also paid by demand draft. It is also his case that he had constructed the building and after construction, he was running a hospital by name Sathya Sai Multi-Specialty Eye Hospital for few years by obtaining licence. Again with an intention to avail tax benefits to purchase agricultural lands without contravening the provisions of Karnataka Land Reforms Act, he had released his 1/3rd right over the said second floor building in favour of plaintiff on 05.03.2004. The understanding between them was that plaintiff and defendant No.2 would transfer the property to his name whenever he desires. However, even after execution of release deed, he himself was looking after and managing the day to day affairs of said building. After closure of Sathya Sai Multi-Specialty Hospital, the said building was granted on lease to MT. Educare Pvt. Ltd. and the tenant was crediting the monthly rent to the account of plaintiff and defendant No.2 after execution of release deed by him. However, the tenant continued to credit maintenance to his account, till he vacated the said building during 2018. Thereafter, it was leased to M/s. Siddhanth Foundation ® by him after execution of 12 settlement deed by the plaintiff and defendant No.2 in his favour. The said tenant was running a college by name Trisha Vidya College of Commerce and Evening College and rent was also paid to his account.
8. It is also contended that plaintiff and defendant No.2 have entered into a registered partition in respect of said property on 30.06.2007, but the contention that they were enjoying jointly is not correct and they were never in enjoyment of the said property either jointly or separately at any point of time. The plaintiff and defendant No.2 by executing the settlement deed dated 07.03.2017 settled respective portions allotted to their respective shares as per partition deed dated 30.06.2007 in his favour which was enjoyed by him as an absolute owner. The plaintiff and defendant No.2 executed power of attorney empowering him to transfer/alienate their properties by way of settlement, gift, mortgaging and to sign the said deeds on their behalf and both of them had given their consent letters and he is in exclusive possession of item No.4 of 13 'A' schedule property. The settlement deed is valid and binding on the plaintiff and defendant No.2.
9. The defendant No.3 also filed objections stating that he is not the tenant in item No.4 of 'A' schedule properties. He is only trustee of a trust M/s. Siddhanth Foundation ® which was running a college by name Trisha Vidya College of Commerce and Management and Trisha Evening College in the said building. Hence, the suit filed against him for grant of temporary injunction from making payment of monthly rent and to deposit the same before the Court is not maintainable.
10. The Trial Court, having taken note of the pleadings of the plaintiff and defendant No.1, formulated the points whether the plaintiff proves that he has got prima facie case against defendant Nos.1 and 3, whether the plaintiff proves the balance of convenience lies in his favour and whether the plaintiff proves that if temporary injunction is not granted as prayed, he will be put to great hardship than the defendant Nos.1 and 3. The Trial Court, having considered the material on record, allowed I.A.No.II and dismissed I.A.Nos.III and IV by 14 passing a common order. Hence, the present appeal is filed before this Court by the appellants/defendant Nos.1 and 4.
11. The main contention of the learned counsel for the appellants/defendant Nos.1 and 4 in this appeal is that the Trial Court committed an error in granting the relief of temporary injunction and the Trial Judge has totally erred in granting an interim order restraining the appellants from alienating, changing or encumbering the plaint 'B' schedule properties and the order passed by the Trial Court suffers from errors apparent on record. It is contended that the plaintiff has not prayed for partition of 'B' schedule properties and in the absence of main prayer, no interim relief can be granted. It is further contended that on 30.06.2007, the plaintiff and defendant No.2 have voluntarily executed a registered release deed in favour of defendant No.1 in respect of plaint 'B' schedule properties. Execution of the said release deed has been specifically admitted at Para No.8 of the plaint and the same was not challenged for a period of 13 years. It is also contended that no prayer has been made in the plaint either for declaration or for cancellation of the 15 registered release deed executed by the plaintiff and defendant No.2 in favour of defendant No.1. In the absence of filing a suit for cancellation of the registered document, the plaintiff cannot seek any temporary relief and khatha of 'B' schedule properties have been changed in the name of defendant No.1 in the year 2007 itself immediately after execution of registered release deed. It is also contended that Smt. Kashiamma is the maternal grand-mother and it is admitted in the plaint that she has executed the registered Will on 11.01.1994 and Codicil on 31.08.2002 bequeathing the plaint 'B' schedule properties in favour of plaintiff and defendant Nos.1 and 2. By virtue of the Will or even otherwise, properties inherited from the maternal side not amounts to joint family properties.
12. It is also contended that though item Nos.1 and 2 of plaint 'A' schedule properties were jointly purchased by the plaintiff and the defendant Nos.1 and 2 on 25.06.2014, the entire sale consideration has been paid by the appellant No.1/defendant No.1 and the Trial Court failed to take note of the details which have been furnished for having made the 16 payment. It is contended that the Trial Court also failed to take note of the settled law that any property acquired by a female Hindu after 1956 is her absolute property and none of the members of the joint family could claim any right over the same by virtue of Section 14 of the Hindu Succession Act. The learned Trial Judge has failed to note that he is duty bound to consider whether plaintiff has got a strong prima facie case in respect of item Nos.1 and 2 of plaint 'A' schedule properties and the very approach of the Trial Court is erroneous.
13. Learned Senior counsel for the appellants-defendant Nos.1 and 4 in his argument would vehemently contend that no details of property which were sold was given before the Trial Court. The counsel also would submit that loan was taken prior to filing the suit and he invested the money which he borrowed and purchased the property and no property is inherited fromhis ancestors and the property of the mother cannot be a family property. The counsel also would vehemently contend that there was no joint nucleus and in order to prove the fact that amount has been paid by him, he has also produced the bank statement 17 dated 22.04.2020 showing withdrawal of the amount for paying the sale consideration and registration fees and item No.6 of plaint 'A' schedule property is standing in his name. The counsel also would vehemently contend that item Nos.1, 2, 4 and 6 though have been jointly purchased in the name of the family members, they have relinquished their right. The counsel also would vehemently contend that plaint 'B' schedule property cannot be treated on par with item Nos.1, 2, 4 and 6 and the property of the mother cannot be a treated as a joint family property. Hence, it requires interference of this Court.
14. Per contra, learned counsel for the respondent No.1/plaintiff would vehemently contend that the order passed by the Trial Court is not to alienate the properties and there is no dispute with regard to the relationship between the parties. The counsel would vehemently contend that the mother has sold the properties and constructed the apartment and sold 39 apartments and purchased the suit schedule properties out of the sale consideration received from selling the apartments. The counsel also would vehemently contend that defendant No.1 is 18 the eldest member of the family and his claim is only 1/3rd share and the appellants/defendant Nos.1 and 4 also not dispute the fact that the properties are purchased in the joint names. The counsel also would submit that when the defendant No.1 started to misuse his power based on the power of attorney, the same was cancelled on 04.03.2017 and the notice sent was returned with an endorsement 'unclaimed'. But, the documents were created on 07.03.2017, even after cancellation of the power of attorney and the same is also published in the newspaper on 07.03.2017 itself. The defendant No.1 based on the earlier power of attorney created the document of relinquishment deed and there is a presumption under the Act that these are joint family properties. Hence, the Trial Court has passed a judicious order and brought to notice of this Court the discussion made by the Trial Court while passing the order.
15. Learned counsel for the respondent No.1/plaintiff in support of his argument, relied upon the judgment in SRI GOWRISHANKARA SWAMIGALU VS. SRI SIDDHAGANGA MUTT reported in I.L.R. 1989 KAR 1701 and brought to notice 19 of this Court relevant Para Nos.11 and 12, wherein an observation is made that the Court of appeal has to simply consider whether or not the Judge who dealt with the matter has properly exercised the discretion which he undoubtedly possesses. The Appellate Judge not to approach the case as if he were the trial Judge and if the discretion has been exercised by the trial Court reasonably and in a judicial manner, the fact that the Appellate Court would have taken a different view may not justify interference with the trial Court's exercise of discretion; but if it appears to the Appellate Court that in exercising its discretion the trial Court has acted unreasonably or capriciously or has ignored relevant facts then it would be open to the Appellate Court to interfere with the trial Court's exercise of discretion.
16. The counsel also brought to notice of this Court the principles laid down in the said judgment in Para No.26, wherein an observation is made that in other words the existence of a prima facie case or even a very strong prima facie case does not permit leap-frogging by the plaintiff directly to an injunction 20 without crossing the other hurdles in between. The existence of a prima facie case strong enough to ensure fool-proof success ultimately of the lis was treated as a the criterion for the grant of any ad-interim injunction.
17. In reply to the argument of the learned counsel for the respondent No.1/plaintiff, learned counsel for the appellants/defendant Nos.1 and 4 would vehemently contend that order passed by the Trial Court is not reasonable and the Trial Court has tailed to take note of execution of the document of relinquishment deed and also the fact that property of the mother cannot be treated as a joint family property.
18. In reply to the reply argument of the learned counsel for appellants/defendant Nos.1 and 4, the learned counsel for respondent No.1/plaintiff would submit that the Trial Court has taken note of the pleadings made in Para Nos.2 to 6 of the plaint, wherein it is specifically pleaded with regard to the fact that the properties are joint family properties and also with regard to the manner of acquisition of the properties. 21
19. Having heard the learned Senior counsel for the appellants/defendant Nos.1 and 4 and also learned Senior counsel for the respondent No.1/plaintiff and also considering the principles laid down in the judgment referred (supra), the points that would arise for consideration of this Court are:
(1) Whether the Trial Court has committed an error in allowing I.A.No.II granting an order of temporary injunction, as sought for?
(2) What order?
Point No.(1)
20. Having heard the learned counsel for the respective parties and also on perusal of the material available on record, particularly the pleadings made in the plaint in O.S.No.34/2020, in Para No.3 of the plaint, it is specifically pleaded that some of the items of family properties are sold for a valid consideration by the plaint family members. The sale proceeds derived from family properties are invested in the lands and shares by the plaint family for the benefit and welfare of their entire undivided joint family. It is submitted that from the fund derived from the 22 family properties on the sale proceeds and other ancestral nucleus, they purchased the properties described in the plaint 'A' schedule properties. It is also stated in the plaint with regard to purchasing of the property by mother A. Shakunthala Kodgi from the income derived from Kalladka property and also income derived from their father. It is also not in dispute that property was purchased by mother A. Shakunthala Kodgi and that the father was working and getting pension. It is also not in dispute that the properties are purchased by the mother and some of the properties were sold and apartments were constructed and thereafter, the same were also sold. It is also the contention of the appellants that out of the sale proceeds, the suit schedule properties were purchased. It is also not in dispute that item Nos.1 and 2 of the properties have been purchased in the name of the plaintiff and defendant Nos.1 and 2 and the document of release deed dated 30.06.2007 is also relied upon by the defendants which is a registered document. There is also a reference in Para Nos.6 and 7 of the plaint with regard to the execution of Will dated 11.01.1994 and also Codicil dated 31.08.2002 and the said Kashiamma died on 07.09.2002 by 23 executing the said Will and Codicil. It is also the claim that on the basis of the said Will, the plaintiff and the defendants have acquired right over the said property which is morefully described in plaint 'B' schedule property.
21. No doubt, the defendants also contend that a release deed was executed on 07.03.2017, it is the case of the plaintiff that when they came to know about the fact that the defendant No.1 is acting adversely against their interest, they have given notice on 04.03.2017 itself and to that effect, the plaintiff and defendant No.2 have jointly issued paper publication on 07.03.2017 in the daily newspaper 'Vijaya Karnataka' and release deed also came into existence on 07.03.2017 and the fact that notice was issued is also not in dispute.
22. Learned counsel for the appellants/defendant Nos.1 and 4 would vehemently contend that even assuming that properties are purchased in the joint names of the plaintiff and defendant Nos.1 and 2, but entire sale consideration has been paid by defendant No.1. The defendant No.1 also contend that the documents have been placed before the Court i.e., bank 24 statement for having made the payment. It is also important to note that there is no defence of partition between the family members by the plaintiff and the defendants and the defendants only rely upon the execution of release deed in the year 2007 and subsequent documents also came into existence with regard to releasing their interest. The plaintiff and defendant No.2 also executed certain documents and they are disputing the same and it is their contention that, earlier they have executed power of attorney for smooth management and when the defendant No.1 started misusing the said power of attorney, notice was issued and the fact that document of release deed came into existence on 07.03.2017 is not in dispute and power of attorney was used for creating the document of release deed is not in dispute.
23. It has to be noted that when the properties are purchased jointly by the plaintiff and the defendant Nos.1 and 2, it clearly discloses that there existed a joint family and there is a force in the contention of the learned counsel for the respondent No.1/plaintiff that there is a presumption of existence of joint family and the documents which have been relied upon by the 25 plaintiff as well as the defendants are disputed documents and there exists a joint family. The appellants also not dispute the fact that defendant No.1 is the elder member of the family and transactions have taken place. The description of plaint 'A' schedule property is also very clear that item Nos.1 and 2 of the plaint 'A' schedule properties are purchased in the name of the appellants, the plaintiff and defendant Nos.1 and 2 jointly.
24. It is the contention of the appellants/defendant Nos.1 and 4 that item No.3 i.e., apartment is purchased by availing loan and contend that payment was made solely by defendant No.1 and also rely upon registered settlement deed dated 28.11.2016 of second appellant. It is also important to note that item No.4, commercial floor measuring 7,280 sq.ft. at Vasuki Towers, Udupi is also purchased on 17.08.2002 in the name of the plaintiff, appellant and defendant No.2 jointly. It is also not in dispute that item No.5 of the property is purchased in the name of the appellant vide document dated 25.03.2006 and it is also the contention that amounts have been paid by the appellant No.1/defendant No.1 himself. Item No.6 of the property is purchased on 28.12.2007 jointly for a valuable 26 consideration of Rs.56,00,000/-. The learned counsel for the appellants would vehemently contend that though it is purchased jointly, but entire sale consideration has been paid by the defendant No.1 out of his personal funds. It is the contention that item Nos.7 to 16 are agricultural lands which were purchased in the year 2009 in the name of the appellant No.1 and he paid the entire consideration and the said issue between the parties i.e., whether amount has been paid from his account i.e., out of his income and whether the property is a self- acquired property or not has to be considered during the course of trial and on merits.
25. It is important to note that when item Nos.1, 2 and 3 of the property are purchased in the year 2014 jointly by the appellant No.1 and the plaintiff in the month of May and June and prior to that, even in the year 2002 also, they have jointly purchased item No.4 of the plaint 'A' schedule property and even in 2007, the appellant No.1, plaintiff and defendant No.2 have jointly purchased item No.6 of the plaint 'A' schedule property and the claim that other properties are purchased by himself out 27 of his self-earning in 2006 and 2014 i.e.,. on 15.05.2014 is a matter of trial, since the purchases are made in between the said period. It is also the claim that item Nos.7 to 16 have been purchased in between 10.07.2009 to 10.12.2009 and the same is also a matter of trial and there is no dispute with regard to purchasing of item Nos.1, 2, 4 and 6 jointly in between. When such being the case, the very contention of the learned counsel for the appellants/defendant Nos.1 and 4 cannot be accepted.
26. The other contention of the learned counsel for the appellants that the property of the mother cannot be treated as a family property is also a matter of trial, since the purchase was made in the name of the mother. It is also their claim that out of the nucleus of ancestral property, the properties are purchased and whether the mother was having her independent income to purchase the properties also has to be considered during trial while considering the matter on merits. No doubt, it is also contended by the learned counsel for the appellants that defendant No.1 had availed loan prior to purchasing the property and though details are given for having purchased the property 28 and availing loan from the bank, the same also to be considered during trial, since he is the elder member of the family. With regard to the release deed executed in respect of Nos.1 and 2 of plaint 'A' schedule property also, there is a dispute which is subsequent to paper publication as well as notice issued for cancellation of power of attorney and the same also to be considered during the course of trial.
27. No doubt, learned Senior counsel for the respondent No.1/plaintiff relied upon the judgment of this Court referred (supra) citing Para Nos.11, 12 and 16, this Court in detail discussed with regard to scope of an application filed under Order 39, Rule 1 and 2 of CPC and also with regard to scope of Appellate jurisdiction. Having considered the principles laid down in Para Nos.11, 12 and 26 of the said judgment, it is clear that discretion has to be exercised based on material available on record and the Appellate Court must be slow in exercising the discretion against the order of the Trial Court. In the said judgment, it is also observed that the Court having regard to the expediency involved should not embark upon a nit-picking 29 operation at that stage by holding a mini trial to lay thread-bare the case of the plaintiff to find out if a prima facie case is made out or not. It would be sufficient if the Court is assured that questions raised by the plaintiff are not vexatious or too casual, but are such as to merit serious consideration at a subsequent stage.
28. Having considered the material available on record and the grounds urged in the appeal by the appellants/defendant Nos.1 and 4 as well as the respondent No.1/plaintiff, I do not find any error committed by the Trial Court in considering the prima facie case in favour of the plaintiff and balance of convenience lies in favour of the respondent No.1/plaintiff and if injunction is not granted and nature of property is changed and if the property is alienated, it will lead to multiplicity of proceedings. Hence, there is no merit in the appeal to come to an other conclusion that the order passed by the Trial Court is unreasonable as contended by the learned counsel for the appellants.
30
29. The other contention that item Nos.1, 2, 4 and 6 of plaint 'A' schedule properties have been purchased jointly in the name of plaintiff and defendant Nos.1 and 2 and there cannot be any order in respect of other properties also cannot be accepted, since I have already discussed in detail with regard to the properties purchased from 2002 onwards, till the filing of the suit and the execution of partition deed and also release deed in the year 2007 as well as in the year 2017 respectively also to be considered during the course of trial. Hence, no grounds are made out to reverse the findings of the Trial Court. Accordingly, I answer point No.(1) as 'negative'.
Point No.(2):
30. In view of the discussion made above, I pass the following:
ORDER The appeal is dismissed.
Sd/-
JUDGE ST