Sri Venkataramanappa vs Sri Muniyappa
2021 Latest Caselaw 5277 Kant

                                     M.F.A.No.5691/2021

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 2ND DAY OF DECEMBER 2021

                       BEFORE

        THE HON'BLE MRS JUSTICE K.S.MUDAGAL

 MISCELLANEOUS FIRST APPEAL NO.5691/2021 (CPC)

BETWEEN:

1.     SRI VENKATARAMANAPPA
       S/O. LATE KUNTAPPA
       AGED ABOUT 65 YEARS

2.     SRI KRISHNAPPA
       S/O. LATE KUNTAPPA
       AGED ABOUT 63 YEARS

3.     SRI RAMACHANDRA
       S/O. LATE KUNTAPPA
       AGED ABOUT 61 YEARS

       ALL ARE R/AT
       CHANNASANDRA VILLAGE
       BIDARAHALLI HOBLI
       BENGALURU EAST TALUK               ...APPELLANTS

(BY SRI SHARATH.S.GOWDA, ADVOCATE)

AND:

1.     SRI MUNIYAPPA
       S/O. LATE KUNTAPPA
       AGED ABOUT 32 YEARS

2.     SRI VENKATESH
       S/O. LATE KUNTAPPA
       AGED ABOUT 29 YEARS

3.     SMT.SARASWATHI
       D/O. LATE KUNTAPPA
       AGED ABOUT 25 YEARS
                                           M.F.A.No.5691/2021

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        SMT.RAMAKKA
        SINCE DEAD, REP BY LRS

4.      NAGAMMA
        W/O. LATE MUNI KRISHNA
        D/O. LATE RAMASWAMY
        AGED ABOUT 45 YEARS

5.      MUNIRAJU
        S/O. LATE RAMASWAMY
        AGED ABOUT 42 YEARS

6.      SMT.AMMAYAMMA
        S/O. LATE KUNTAPPA
        AGED ABOUT 54 YEARS

        ALL ARE R/AT
        CHANNASANDRA VILLAGE
        BIDARAHALLI HOBLI
        BENGALURU EAST TALUK                 ...RESPONDENTS

(BY SRI B.R.PRABHULINGAMURTHY, ADVOCATE FOR R1-R3;
    SRI H.V.SUBRAMANYA, ADVOCATE FOR R6
    R4 AND R5 ARE SERVED)
     THIS MFA IS FILED UNDER ORDER XLIII RULE 1(r) READ
WITH SECTION 151 OF CPC PRAYING TO SET ASIDE THE
ORDER DATED 21.10.2021 (ANNEXURE-A) PASSED BY III
ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU RURAL
DISTRICT, BENGALURU IN O.S.NO.756/2012 ON I.A.NO.12.

      THIS MFA COMING ON FOR FURTHER HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

Registry has placed the vakalat filed by

Sri H.V.Subramanya, learned Counsel for respondent

No.6.

2. Heard both side.

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3. Aggrieved by the order of injunction passed

against them, defendant Nos.1 to 3 in O.S.No.756/2012

on the file of III Additional Senior Civil Judge, Bengaluru

Rural District, Bengaluru have preferred the above

appeal.

4. The appellants were defendant Nos.1 to 3,

respondent Nos.1 to 3 were plaintiff Nos.1 to 3 and one

Ramakka was defendant No.4 in O.S.No.756/2012.

During the pendency of the proceedings Ramakka died.

Respondent Nos.4 and 5 were brought on record as her

heirs as defendant Nos.4(a) and (b). Respondent No.6

was defendant No.5 before the trial Court. For the

purpose of convenience, the parties will be referred to

henceforth according to their ranks before the trial Court.

5. The plaintiffs filed O.S.No.756/2012 claiming

that the Will dated 21.09.2002 said to have been

executed by Chikka Akkamma in favour of defendant

Nos.1 and 3 does not bind them and for partition and

separate possession of their ½ share in the suit schedule

properties.

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6. The subject matter of the suit were land

bearing Survey No.173/2 measuring 39 guntas of

Kadugodi Village, Survey No.49 measuring 1 acre 39

guntas and Survey No.104 of Channasandra Village.

7. The plaintiffs claim that they are the children

of Muniyamma. They further claim that Muniyamma was

the second wife of Kuntappa. They contend that

defendant Nos.1 to 5 are the children of Kuntappa and

first wife Chikkamma. Kuntappa died on 24.06.1991.

8. As admitted by the plaintiffs themselves,

there was partition between Kuntappa and defendant

Nos.1 to 5 on 06.03.1988. They claim that the suit

schedule properties were ancestral properties of Kuntappa

and they are entitled to equal ½ share in the suit

schedule properties.

9. The defendants disputed that Muniyamma

was the second wife of Kuntappa. They claimed that

Survey No.173/2 i.e. suit schedule item No.1 property

was self acquired property of Chikka Akkamma, she

purchased that out of the funds given by her maternal M.F.A.No.5691/2021

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family. Thus they denied that the plaintiffs have any

share in the suit schedule properties.

10. Defendant Nos.1 to 3 further claim that

Chikka Akkamma has bequeathed the plaint schedule

item No.1 property i.e. Survey No.173/2 in their favour

under the registered Will dated 21.09.2002. By the time

the suit was filed Chikkamma and Muniyamma both were

not alive.

11. When the matter was pending before the trial

Court, the plaintiffs filed I.A.No.12 seeking temporary

injunction against the defendants to restrain them from

putting up further construction on suit schedule item No.1

property i.e. Survey No.173/2 measuring 39 guntas of

Kadugodi village.

12. In the affidavit filed in support of the

application, they have reiterated the same source of their

right. They further claimed that the defendants are

putting up construction on the said property and the

property needs to be maintained till the suit is disposed

of.

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13. The defendants contested the application

denying the rights of the plaintiffs and also on the ground

that they have already substantially put up the

construction. They also contended that even in the

partition deed dated 06.03.1988 relied on by the

plaintiffs, they are entitled to the share only in the share

allotted to Kuntappa which did not include Survey

No.172/3. Therefore there is no prima-facie case for the

plaintiffs.

14. The trial Court on hearing both side, by the

impugned order rejected the application on the ground

that all the issues raised by the parties have to be

decided on trial. The trial Court further held that the till

the trial is concluded and the matter is finally decided, it

is necessary to maintain the property as it is.

15. Sri Sharath.S.Gowda, learned Counsel for the

appellants reiterating the grounds of appeal contends that

the impugned order is contrary to the pleadings and the

documents placed before the Court, therefore the same is M.F.A.No.5691/2021

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perverse. He submits that absolutely there was no

prima-facie case for the plaintiffs.

16. Per contra, Sri B.R.Prabhulingamurthy,

learned Counsel for the plaintiffs/respondent Nos.1 to 3

submits that the order of the trial Court being

discretionary one, the Appellate Court cannot interfere

with the same. He further submits that the trial Court

order is reasoned one and admittedly the defendants

have put up construction on the schedule property,

therefore the injunction is rightly granted.

17. It is true that granting injunction being

discretionary relief, the Appellate Court cannot interfere

with the same unless the order in question is perverse,

arbitrary and capricious. Non consideration of the

pleadings and the materials produced before the Court

and the applicable law, amounts to perversity.

18. To grant temporary injunction, the applicant

has to satisfy the following aspects :

i) That he has prima-facie case. Prima-facie

case means his prima-facie legal right and injury to such M.F.A.No.5691/2021

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right. That his case is not vexatious and there is serious

question to be decided at the trial.

ii) That the balance of convenience lies in his

favour.

iii) If temporary injunction is not granted, he will

be put to irreparable injury.

iv) To grant the relief of equity, the conduct of

the applicant has to be considered.

19. In the light of the above proposition of law,

this Court has to see whether the plaintiffs have made out

prima-face case. According to the plaintiffs themselves

they are the children of second wife of Kuntappa and such

marriage had taken place during the subsistence of

marriage of Kuntappa and his first wife Chikkamma.

20. The injunction was sought only with respect

of Sy.No.173/2 which is item No.1 of schedule properties.

The plaintiffs claim that Kuntappa acquired the said

property in the name of Chikka Akkamma out of family

funds. The defendants claim that the suit properties was

acquired by Chikka Akkamma by the financial support M.F.A.No.5691/2021

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rendered from her maternal family. Both admitted that

there was partition between Kuntappa and the defendants

on 06.03.1988 and that Survey No.173/2 was also

subjected to partition. Therefore prima-facie it can be

inferred that the suit property was treated as family

property.

21. First of all the plaintiffs are not very clear

whether they lay claim to the property as ancestral

property of Kuntappa. If they claim that the properties

were ancestral properties, they have not challenged the

partition deed dated 06.03.1988. Secondly, in view of

Section 16(3) of Hindu Marriage Act, 1955 it is doubtful

whether being the children of second wife of Kuntappa

they can lay claim for share in the ancestral property.

22. The partition deed dated 06.03.1988 shows

that what was allotted to the share of Kuntappa was

Survey No.49 and the house property situated in

Channasandra village. Survey No.173/2 was not allotted

to the share of Kuntappa. The said land was allotted to

the share of defendant Nos.1 and 3. On that count also M.F.A.No.5691/2021

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they do not have prima-facie case of legal right to the

said property.

23. The trial Court did not consider all these

aspects. The trial Court simply stated that all the issues

raised shall be considered on full fledged trial. Granting

injunction is serious matter. While granting or rejecting

such relief, the Court has to consider affidavit, pleadings

and other materials produced before it, to find out the

prima-facie rights of the parties. It cannot simply defer

the consideration of all such questions at the final stage

and proceed to grant injunction which affects the right of

other parties.

24. In para 21 of the judgment in Mandali

Ranganna v. T.Ramachandra1 the Hon'ble Supreme Court

held that while considering the application for grant of

injunction, the Court will not only take into consideration

the basic elements in relation thereto namely the

existence of prima-facie case, balance of convenience and

(2008) 11 SCC 1 M.F.A.No.5691/2021

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irreparable injury, it must also take into consideration the

conduct of the parties.

25. The prayer of the plaintiffs that the

defendants shall be restrained from putting up further

construction itself shows that by that time the

construction had already commenced. The copies of the

photographs produced by the plaintiffs before the trial

Court are submitted before this Court. They show that by

the time the application was filed, the construction had

substantially come up.

26. In para 22 of the judgment in Mandali

Ranganna's case referred supra, the Hon'ble Supreme

Court held that a person who had kept quite for long time

and allowed another to deal with the properties

exclusively, ordinarily would not be entitled to an order of

injunction. The trial Court overlooked that aspect also.

27. Having put up so much construction, if the

defendants are restrained from putting up further

construction they will be put to irreparable injury and M.F.A.No.5691/2021

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balance of convenience lies in their favour. The trial Court

failed to consider all the aforesaid aspects. Therefore the

impugned order suffers the vice of perversity and

arbitrariness.

The appeal is allowed. The impugned order of the

trial Court is hereby set aside.

IA No.12 filed by the appellant under Order XXXIX

Rules 1 and 2 of CPC is dismissed with costs.

It is made clear that the constructions made by the

appellants shall be subject to the final result of the suit.

Sd/-

JUDGE

KSR/PKN