Karnataka High Court
Sri.Chandraprakash vs Sri.Puttaraju on 4 March, 2015
Author: A.V.Chandrashekara
Bench: A.V.Chandrashekara
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF MARCH 2015
BEFORE
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
M.F.A. NO. 1805/2014 (CPC)
BETWEEN:
1. SRI.CHANDRAPRAKASH
AGED ABOUT 52 YEARS
S/O SRI SOMASHEKAR
RESIDING AT NO. 178
KAMAKSHIPALYA GRAMATANA
YESWANTHPURA HOBLI
BANGALORE NORTH TALUK-560080
2. SRI OMRAJU
AGED ABOUT 50 YEARS
S/O SRI SOMASHEKAR
RESIDING AT NO. 178
KAMAKSHIPALYA GRAMATANA
YESWANTHPURA HOBLI
BANGALORE NORTH TALUK-560080
3. SMT. GOWRAMMA
AGED ABOUT 66 YEARS
W/O SRI SOMASHEKAR
RESIDING AT NO. 178
KAMAKSHIPALYA GRAMATANA
YESWANTHPURA HOBLI
BANGALORE NORTH TALUK-560080
4. SRI KRISHNAPPA
AGED ABOUT 62 YEARS
S/O SRI MUNICHOWDAPPA
2
RESIDENT OF SANJAY NAGARA
DODDABALLAPURA
BANGALORE-561303
5. SMT. SUJATHA
AGED ABOUT 35 YEARS
D/O SRI KRISHNAPPA
RESIDENT OF SANJAY NAGARA
DODDABALLAPURA
BANGALORE-561303
6. SMT. MANJULA
AGED ABOUT 32 YEARS
D/O SRI KRISHNAPPA
RESIDENT OF SANJAY NAGARA
DODDABALLAPURA
BANGALORE-561303
7. SMT. SAKAMMA
AGED ABOUT 60 YEARS
D/O SRI MUNICHOWDAPPA
RESIDENT OF SANJAY NAGARA
DODDABALLAPURA
BANGALORE-561303
8. SMT. SHANTHAMMA
AGED ABOUT 58 YEARS
D/O SRI MUNICHOWDAPPA
RESIDENT OF SANJAY NAGARA
DODDABALLAPURA
BANGALORE-561303
9. SMT. SARASWATHAMMA
AGED ABOUT 57 YEARS
D/O SRI MUNICHOWDAPPA
RESIDENT OF SANJAY NAGARA
DODDABALLAPURA
BANGALORE-561303
10. SRI C PUTTARAJU
AGED ABOUT 58 YEARS
S/O SRI CHIKKACHOWDAPPA
3
RESIDENT OF HALASUBBANABEEDI
HOSABEEDI, YELHANKA
BANGALORE-560064
11. SRI CHOWDAPPA
AGED ABOUT 64 YEARS
S/O SRI RAMAIAH
RESIDING AT NO. E 199/1-165/2
AGRAHARA BADAVANE,
13TH CROSS
AGRAHAR, BANGALORE-560064
12. SRI C RAJU
AGED ABOUT 55 YEARS
S/O SRI CHIKKACHOWDAPPA
RESIDENT OF HALASUBBANABEEDI
HOSABEEDI, YELHANKA
BANGALORE-560064
13. SMT. NAGAMMA
AGED ABOUT 78 YEARS
W/O SRI CHIKKACHOWDAPPA
RESIDENT OF HALASUBBANABEEDI
HOSABEEDI, YELHANKA
BANGALORE-560064
14. SRI CHANDRASHEKAR
AGED ABOUT 28 YEARS
S/O SRI CHOWDAPPA
RESIDING AT NO. E 199/1-165/2
AGRAHARA BADAVANE, 13TH CROSS
AGRAHAR, BAGALORE-560064
15. SMT. SHOBHA
AGED ABOUT 24 YEARS
D/O SRI CHOWDAPPA
RESIDING AT NO. E 199/1-165/2
AGRAHARA BADAVANE, 13TH CROSS
AGRAHAR, BAGALORE-560064
16. SMT. SAROJAMMA
AGED ABOUT 62 YEARS
4
D/O SRI RAMAIAH
RESIDING AT NO.63
4TH WARD, 29TH "D" DIVISION
GANIGARA PETE
DODDABALLAPURA
17. SRI MANJUNATHA
AGED ABOUT 37 YEARS
S/O SRI LATE JAYARAM
RESIDENT OF NO. 347
SANJAY NAGAR, DODDABALLAPURA
BANGALORE-561303
18. SMT. PARVATHAMMA
AGED ABOUT 59 YEARS
W/O SRI LATE JAYARAM
RESIDENT OF NO. 347
SANJAY NAGAR, DODDABALLAPURA
BANGALORE-561303
19. SMT. SAROJA
AGED ABOUT 37 YEARS
D/O LATE JAYARAM
RESIDENT OF NO. 347
SANJAY NAGAR, DODDABALLAPURA
BANGALORE-561303
APPELLANTS 1-10, AND 12-19 ARE
REPRESENTED BY THEIR GPA
HOLDER THE APPELLANT NO.11
CHOWDAPPA
... APPELLANTS
(By Sri: SHIVARAMU H C, ADV.)
AND:
1. SRI.PUTTARAJU
AGED ABOUT 67 YEARS
S/O LATE CHOWDASHETTAPPA
5
2. SRI BASAVARAJU
AGED ABOUT 61 YEARS
S/O LATE CHOWDASHETTAPPA
3. SMT. SHARADAMMA
AGED ABOUT 65 YEARS
D/O LATE CHOWDASHETTAPPA
4. SMT. SUSHEELAMMA
AGED ABOUT 62 YEARS
D/O LATE CHOWDASHETTAPPA
5. SMT. SARASAWATHAMMA
AGED ABOUT 57 YEARS
D/O LATE CHOWDASHETTAPPA
6. SMT. CHOWDAMMA
AGED ABOUT 47 YEARS
D/O LATE CHOWDASHETTAPPA
7. SRI ESHWAR
AGED ABOUT 60 YEARS
S/O LATE NARAYANAPPA
8. SMT. JAYAMMA
AGED ABOUT 67 YEARS
D/O LATE NARAYANAPPA
9. SMT. LEELAVATHI
AGED ABOUT 52 YEARS
W/O LATE NARAYANAPPA
ALL ARE RESIDING AT NO. 88, OLD NO.27
CUBBONPET MAIN ROAD
BANGALORE-560002
10. CHOWDESHWARI THOGATAVEERA
KSHATRIYA SANGHA (R)
NO. 157, CUBBONPET MAIN ROAD
BANGALORE-560002
REP BY ITS SECRETRY
SRI R ASHWATHAARAYANA
6
11. SMT. KOMALADEVI
AGED ABOUT 57 YEARS
W/O LATE NAGARAJU
12. SRI N UVARAJA
AGED ABOUT 38 YEARS
S/O LATE NAGARAJU
13. SRI N BHASKAR
AGED ABOUT 34 YEARS
S/O LATE NAGARAJU
14. SRI NARENDRA BABU
AGED ABOUT 36 YEARS
S/O LATE NAGARAJU
ALL ARE RESIDING AT NO. 88
OLD NO. 27,
CUBBONPET MAIN ROAD
BANGALORE-560002
... RESPONDENTS
(By Sri : JAYAKUMAR S.PATIL, SR. ADV FOR
SRI: R.S.UMESH, ADV FOR R10
NOTICE TO R1 TO R9 & R11 TO R14 ARE D/W)
MFA FILED U/O 43, RULE 1(r) OF CPC, AGAINST THE
ORDER DATED:18.11.2013 PASSED ON IA NO.5 IN
O.S.NO.2766/2012 ON THE FILE OF THE 7TH ADDITIONAL
CITY CIVIL JUDGE, BANGALORE, DISMISSING IA NO.5
FILED U/O 39, RULE 1 & 2, R/W SEC 151 OF CPC.
THIS APPEAL HAVING BEEN HEARD AND
RESERVED FOR ORDERS COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY,
A.V.CHANDRASHEKARA, J., DELIVERED THE
FOLLOWING:
7
JUDGMENT
Plaintiffs of an original suit in O.S.2766/12 which is pending on the file of VII Additional City Civil Judge, Bengaluru City, have filed this appeal since they are aggrieved by the rejection of their application filed by them under Order XXXIX Rules 1and 2, C.P.C.
2. Plaintiffs have filed a suit for the relief of partition and separate possession claiming in all 3/5th share in respect of the suit schedule property measuring 45' east-west and 80' north- south bearing No.88 situated on Cubbonpet, Bengaluru City. During the pendency of the suit, they had requested the court to grant an order of temporary injunction against interference insofar as the 10th defendant is concerned. The said application was contested by filing detailed objections by the 10th defendant. Parties will be referred to as plaintiffs and defendants as per their ranking before the trial court.
3. After hearing arguments, the learned judge has dismissed the application by order dated 18.11.2013. It is this order which is 8 called in question on various grounds as stated in the appeal memo.
4. The facts leading to the filing of the said suit for partition and separate possession and the consequential application filed under Order XXXIX Rules 1 and 2, C.P.C. are as follows:
a) According to the plaintiffs, one person by name Papaiah was the propositus of the joint family consisting of plaintiffs and defendants and had owned several properties including the suit schedule property bearing old No.27, new no.88. Earlier the area in which the suit schedule property is situated was called as Kavadigara Revannapet, Bengaluru. Said Papaiah died leaving behind him three sons, Chowdappa, Nanjundappa and Nanjappa.
b) According to the plaintiffs, the above three children chose to divide the properties amongst themselves and the same is evidenced through a registered partition deed dated 7.12.1892.
The suit schedule property is stated to have fallen to the share of Chowdappa-first son of deceased Papaiah. The said Chowdappa died leaving behind 5 sons namely, Munichowdappa, Chikkachowdappa, Ramaiah, Chowdashetappa and Narayanappa 9
c) Plaintiffs are said to be the legal heirs of Munichowdappa, Chikkachowdappa and Ramaiah. Defendants 1 to 9 are the legal heirs of Chowdashetappa and Narayanappa and remaining two sons of Chowdappa. According to the plaintiffs, plaintiffs and defendants 1 to 9 and 11 to 14 still continue to live as members of undivided joint family. The 10th defendant is stated to be illegally claiming ownership on the suit schedule property on an oral gift said to have been executed in his favour by one lady named Sakamma. The said claim is said to be baseless and without any lawful authority. He is stated to have created fraudulent documents without the knowledge of the plaintiffs and has obtained khatha from Bruhat Bengaluru Mahanagara Palike in his name. Hence he is made a party. Since the plaintiffs have 3/5th share together, they have filed the suit for partition and separate possession.
d) The 7th defendant has admitted the relationship between the parties and has filed written statement virtually sailing with the plaintiffs and claiming his share. It is his case that he is ready and willing to pay the court fee in respect of his share. 10
e) The 10th defendant has filed detailed written statement denying all material averments. According to him, the suit is not maintainable either in law or on facts and the same is specifically barred by time, and therefore he has called upon them to strictly prove the contents of the plaint. The averment that the property in question originally belonged to Papaiah, the propositus and the same was divided amongst his three sons, is specifically denied. The averment that the plaintiffs and defendants 1 to 9 still continue as members of joint family is also specifically denied.
f) According to the 10th defendant, the property in question originally belonged to Sakamma and she put the defendant society in permissive possession in order to enable the Sangha to do philanthropic activities. According to him, the society has been carrying on activities in the suit schedule property for the past several years and has become the absolute owner of the same. The defendant society is stated to have initiated several eviction proceedings against tenants who had occupied different tenements in the suit schedule property. It is averred that after 11 taking possession of the suit property, old structures have been demolished and the property in question is a vacant site.
g) According to the 10th defendant, one Papaiah was the president of the Sangha and hence khatha was standing in his name. According to him, Papaiah was never the absolute owner of the said property, and the 1st defendant was the tenant in possession of a portion of the property. Later the 10th defendant has taken over possession by filing Exn.P.1832/11 and since then the 1st defendant is not residing in the suit schedule property. The 10th defendant is stated to be in lawful and exclusive possession of the entire property. He had filed S.C. Nos.1516/79, 338/81 and 1257/86 against the 1st defendant for recovery of arrears of rent and those suits were decreed against which the 1st defendant has not preferred any appeal or revision before any court or authority.
h) It is averred that the 10th defendant had preferred a revision petition in HRRP.1572/90 and the 1st defendant had preferred O.S.1432/96 and they were disposed of by a common order on 11.9.2002 and later on the 10th defendant initiated 12 ejectment proceedings before the Small Causes Court in S.C.2/04 which came to be decreed on 29.1.2007. C.R.P.157/07 has been disposed of by the High Court vide order dated 23.8.2007 directing the defendant no.10 to file a suit before the City Civil Court.
i) The 10th defendant has filed a suit in O.S.8276/07 and the 1st defendant herein had appeared before the civil court in O.S.8276/07 and has filed detailed written statement contesting the said suit which has been decreed vide judgment dated 14.8.2009. R.F.A. filed by the 1st defendant has been dismissed on 27.10.2009 on a joint memo filed by the 10th defendant and 1st defendant under which six months time has been granted to the 1st defendant to vacate and hand over vacant possession of the suit schedule property. By filing Exn.P.1832/11, the 10th defendant has taken possession fro the 1st defendant herein.
j) It is averred that the 7th defendant was in possession of a portion of the schedule property as tenant and possession has been taken over by the 10th defendant in Exn.P.1833/11. HRC.566/91 filed by the 10th defendant against the 7th defendant 13 has been allowed in part on 18.7.1998 against which the Sangha had preferred HRRP.1570/98 and the 1st defendant had preferred HRRP.1433/98 and both the petitions were disposed of by a common order dated 11.9.2002. It is further averred that he had filed ejectment proceedings against one Nagaraj , elder brother of the 7th defendant. The said Nagaraj was in possession of the schedule property as tenant and possession has been taken over by filing Exn.P.1832/11.
k) It is specifically averred that there is no cause of action for the suit and the suit is hopelessly barred by time. It is averred that neither the plaintiffs nor defendants 1 to 9 and 11 to 14 have been in possession of the schedule property at any point of time. It is further averred that the suit is not maintainable without seeking the relief of declaration to the effect that the decrees granted by the competent civil courts are null and void.
l) The contents of the written statement have been reiterated in the objections filed to the I.A. under Order XXIX Rules 1 and 2, C.P.C. The learned judge has chosen to dismiss the application by a considered order dated 18.11.2013. 14
5. The following three points have been formulated for consideration as found in paragraph 11 at page 8 of the impugned order:
1) Whether the plaintiffs/applicants have made out a prima facie case in their favour?
2) In whose favour the balance of convenience lies?
3) To whom irreparable loss and injury will cause if temporary injunction is granted as prayed in I.A.No.5?
4) What order?
6. Heard the learned counsel for the appellant, Mr.H.,C.Shivaramu and Mr.Jaykumar S.Patil, learned senior counsel for the 10th defendant Sangha.
7. There is a legal inhibition for the first appellate court under Order XLIII Rule 1(u), C.P.C. to interfere with an order granting or refusing to grant temporary injunction. Even if the first appellate court were to come to a different conclusion than the one arrived at by the trial court, the same cannot be substituted or altered, unless the order granting or refusing to grant injunction suffers from perversity or absurdity. Perversity 15 or absurdity can be inferred if material documents having a bearing on the suit have been ignored or when the law has been misapplied into the facts of the case.
8. What is argued by the learned counsel for the appellant is that the 10th defendant's assertion that the property in question belonged to one lady by name Sakamma and she put the Sangha in permissive possession of the said property, is incorrect. One Papaiah was the president of the 10th defendant Sangha and khatha was standing in his name. It is argued that the conduct of the 10th defendant has also to be taken into consideration while deciding the existence of prima facie case and balance of convenience.
9. While dismissing the application, I.A.5, the learned judge has referred to the orders passed on I.A.4 by the same court on 14.9.2012. The said I.A.4 was filed under Order XXI Rule 29, C.P.C. to stay further proceedings in Exn.P.1083/10 pending on the file of the 27th Additional City Civil Judge, Bengaluru, till the disposal of O.S.2766/12. The said application had been contested by the 10th defendant and ultimately the said application came to be dismissed.
16
10. Admittedly Exn.P.1083/10 had arisen out of the judgment and decree passed in O.S.8275/07. The said suit had been filed by the present 10th defendant and the judgment has been confirmed by this court in R.S.A.861/10. The learned judge while dismissing I.A.4, has held that the 10th defendant had been fighting the case on behalf of the Sangha since 1992 initially before the Small Causes Court and thereafter before the City Civil Court. It is clearly held by the learned judge while dismissing I.A.4 that the plaintiffs have filed the present suit in O.S.2766/12 in collusion with defendants 1 to 9 and 11 to 14. The plaintiffs wanted to stop further proceedings in Exn.P.1083/10 though they were not parties to the said execution proceedings or the judgment and decre3e drawn in O.S.827/07.
11. While dismissing I.A.5 on 18.11.2013, the learned judge has held that the entire plaint averments have been seriously denied by defendant no.10. The learned judge has come to the conclusion that the property in question originally belonged to one lady named Sakamma and she put the 10th defendant society in possession and the said possession was permissive initially. It is 17 further held that the 10th defendant society has been carrying on its activities in the suit property for the past several years and it has virtually become the owner. It is further held that the 10th defendant has initiated several proceedings to evict various tenants from the suit schedule property and that Papaiah was the earlier president of the society and therefore khatha stood in his name.
12. The learned judge has come to the conclusion that the survey record produced by the plaintiffs shows that Papaiah was none other than the president of the Sangha and not the propositus, as mentioned in paragraph 3 of the plaint. While dismissing I.A.4 it is held that the plaintiffs have suppressed certain true facts and have initiated proceedings. Therefore the trial court has held that no prima facie case exists in favour of the plaintiffs and also balance of convenience does not lie in favour of the plaintiffs. It is held that more injustice would be caused in the event of granting temporary injunction to the defendants than the plaintiffs.
1813 In the light of specific observation being made by the learned judge while dismissing I.A.4 on 14.9.2012 about the suppression of material facts, the learned judge has held that no prima facie case is made out in favour of the plaintiffs. Existence of prima facie case is the harbinger to investigate into other aspects. In the light of several legal proceedings initiated by the 10th defendant society in respect of various tenants who are occupying different tenements and khatha of the property in question being incorporated in the name of Papaiah, the president of the 10th defendant, the learned judge is justified in dismissing the application filed under Order XXIX Rules 1 and 2, C.P.C. 14 Even otherwise, no rejoinder is filed by the plaintiffs against the material averments made by the 10th defendant about various cases legal proceedings initiated by the 10th defendant against some of the parties to the suit and their close relatives other reliefs seeking the main relief of declaration as also the relief of possession and possession being taken over in accordance with the procedure. No good grounds are made out to interfere with the well considered order of refusing to grant temporary 19 injunction. No perversity or absurdity is found in the impugned order.
15 In the result, I pass the following order:
ORDER The appeal is dismissed.
Since the matter is of the year 2012 and in view of several rounds of earlier litigation initiated by the 10th defendant and in view of the various contentions raised by the 10th defendant, the learned judge is requested to dispose of the suit at the earliest by framing appropriate issues. Parties and advocates to co-operate with the judge.
Office is directed to send back the lower court records immediately.
It is made clear that whatever observation is made by this Court is for the limited purpose of disposing of this appeal and shall not influence the Judge while deciding the case on merits.
Parties to bear their own costs.
Sd/-
JUDGE vgh*