Smt. Geetabai Radhabai W/O ... vs Krishnagouda S/O Mallangouda ...
2022 Latest Caselaw 2723 Kant

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           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

       DATED THIS THE 18TH DAY OF FEBRUARY, 2022

                        BEFORE

           THE HON'BLE MRS.JUSTICE M.G. UMA

     MISCELLANEOUS FIRST APPEAL NO.100477/2021
                         c/w
     MISCELLANEOUS FIRST APPEAL NO.100500/2021

IN MFA NO.100477/2021

BETWEEN:

SMT. GEETABAI @ RADHABAI
W/O RAMAKRISHNAGOUDA PATIL
AGE: 60 YEARS
OCC: HOUSEHOLD WORK/AGRICULTURE
R/O: C/O: R.R. PATIL
CHARAKOPPA, 5TH SECTOR
CHARAKOR, KHANDIVILI
MUMBAI, MAHARASHTRA STATE - 400 067
                                           ... APPELLANT

(BY SRI: GIRISH A. YADAWAD, ADVOCATE)

AND:

1.   KRISHNAGOUDA
     S/O MALLANGOUDA NYAMAGOUDA
     AGE: 68 YEARS, OCC: DOCTOR
     R/O: KRISHNA EYE HOSPITAL
     VIJAYPUR ROAD, JAMKHANDI
     DIST: BAGALKOT - 587 301

2.   SMT. SUNANDA
     W/O KRISHNAGOUDA NYAMAGOUDA
     AGE: 60 YEARS, OCC: HOUSEHOLD WORK
                            2




     R/O: KRISHNA EYE HOSPITAL
     VIJAYPUR ROAD, JAMKHANDI
     DIST: BAGALKOT - 587 301

3.   KISHOR
     S/O KRISHNAGOUDA @ KRISHNA NYAMAGOUDA
     AGE: 32 YEARS, OCC: DOCTOR
     R/O: KRISHNA EYE HOSPITAL
     VIJAYPUR ROAD, JAMKHANDI
     DIST: BAGALKOT - 587 301

4.   SOMANAGOUDA @ SOMASHEKAR
     S/O KRISHNAGOUDA @ KRISHNA NYAMAGOUDA
     AGE: 29 YEARS, OCC: ENGINEER
     R/O: KRISHNA EYE HOSPITAL
     VIJAYPUR ROAD, JAMKHANDI
     DIST: BAGALKOT - 587 301

5.   SHASHEER S/O KRISHNAGOUDA
     @ KRISHNA NYAMAGOUDA
     AGE: 25 YEARS, OCC: STUDENT
     R/O: KRISHNA EYE HOSPITAL
     VIJAYPUR ROAD, JAMKHANDI
     DIST: BAGALKOT - 587 301

6.   RAMANAGOUDA
     S/O MALLANGOUDA NYAMAGOUDA
     AGE: 65 YEARS, OCC: AGRICULTURE
     R/O: MELLIGERI, TQ: MUDHOL
     DIST: BAGALKOT - 587 313

7.   SMT. PREMABAI
     W/O RAMANAGOUDA NYAMAGOUDA
     AGE: 56 YEARS, OCC: HOUSEHOLD WORK
     R/O: MELLIGERI, TQ: MUDHOL
     DIST: BAGALKOT - 587 313

8.   AVINASH
     S/O RAMANAGOUDA NYAMAGOUDA
     AGE: 27 YEARS, OCC: SERVICE
     R/O: MELLIGERI, TQ: MUDHOL
     DIST: BAGALKOT - 587 313
                            3




9.    ABHISHEK
      S/O RAMANAGOUDA NYAMAGOUDA
      AGE: 20 YEARS, OCC: STUDENT
      R/O: MELLIGERI, TQ: MUDHOL
      DIST: BAGALKOT - 587 313

10.   SMT. RATNABAI
      W/O VENKANAGOUDA PATIL
      AGE: 62 YEARS
      OCC: HOUSEHOLD WORK
      R/O: HAMPIHOLI, TQ: RAMDURG
      DIST: BELAGAVI - 591 127
                                        ... RESPONDENTS

(BY SRI: ANANTH MANDGI - SENIOR COUNSEL FOR SRI: RAMESH V. ITAGI, ADVOCATE FOR R1 TO 5 NOTICE TO R6 TO R10 DISPENSED WITH)

THIS MFA IS FILED UNDER ORDER 43 RULE 1(1)(r) OF THE CODE OF CIVIL PROCEDURE, 1908, AGAINST THE ORDER DATED 17.04.2021 PASSED IN O.S. NO. 286/2019 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, MUDHOL, ALLOWING THE IA NO.4 FILED UNDER ORDER 39 RULE 1 AND 2 READ WITH SECTION 151 OF CPC.

IN MFA NO.100500/2021

BETWEEN:

1. RAMANAGOUDA S/O MALLANGOUDA NYAMAGOUDA AGE: 65 YEARS OCC: AGRICULTURE R/O: MELLIGERI, TQ: MUDHOL DIST: BAGALKOT - 587 313

2. SMT. PREMABAI W/O RAMANAGOUDA NYAMAGOUDA AGE: 56 YEARS OCC: HOUSEHOLD WORK

R/O: MELLIGERI, TQ: MUDHOL DIST: BAGALKOT - 587 313 ... APPELLANTS

(BY SRIYUTHS: JAGADISH PATIL AND SANTOSH B.M., ADVOCATES)

AND:

1. SMT. GEETABAI @ RADHABAI W/O RAMAKRISHNAGOUDA PATIL AGE: 60 YEARS OCC: HOUSEHOLD WORK/AGRICULTURE R/O: C/O: R.R. PATIL, CHARAKOPPA 5TH SECTOR, CHARAKOR, KANDIVILI MUMBAI, MAHARASHTRA STATE - 400 067

2. KRISHNAGOUDA S/O MALLANGOUDA NYAMAGOUDA AGE: 68 YEARS, OCC: DOCTOR R/O: KRISHNA EYE HOSPITAL VIJAYPUR ROAD, JAMKHANDI DIST: BAGALKOTE - 587 301

3. SMT. SUNANDA W/O KRISHNAGOUDA @ KRISHNAGOUDA NYAMAGOUDA AGE: 60 YEARS, OCC: HOUSEHOLD WORK R/O: KRISHNA EYE HOSPITAL VIJAYPUR ROAD, JAMKHANDI DIST: BAGALKOTE - 587 301

4. KISHOR S/O KRISHNAGOUDA @ KRISHNA NYAMAGOUDA AGE: 32 YEARS, OCC: DOCTOR R/O: KRISHNA EYE HOSPITAL VIJAYPUR ROAD, JAMKHANDI DIST: BAGALKOTE - 587 301

5. SOMANAGOUDA @ SOMASHEKAR S/O KRISHNAGOUDA @ KRISHNA NYAMAGOUDA AGE: 29 YEARS, OCC: ENGINEER R/O: KRISHNA EYE HOSPITAL VIJAYPUR ROAD

JAMKHANDI DIST: BAGALKOTE - 587 301

6. SHASHEER S/O KRISHNAGOUDA @ KRISHNA NYAMAGOUDA AGE: 25 YEARS, OCC: STUDENT R/O: KRISHNA EYE HOSPITAL VIJAYPUR ROAD, JAMKHANDI DIST: BAGALKOTE - 587 301

7. AVINASH S/O RAMANAGOUDA NYAMAGOUDA AGE: 27 YEARS, OCC: SERVICE R/O: MELLIGERI, TQ: MUDHOL DIST: BAGALKOTE - 587 313

8. ABHISHEK S/O RAMANAGOUDA NYAMAGOUDA AGE: 20 YEARS, OCC: STUDENT R/O: MELLIGERI, TQ: MUDHOL DIST: BAGALKOT - 587 313

9. SMT. RATNABAI W/O VENKANAGOUDA PATIL AGE: 62 YEARS OCC: HOUSEHOLD WORK/AGRICULTURE R/O: HAMPIHOLI, TQ: RAMDURG DIST: BELAGAVI - 591 127 ... RESPONDENTS

(BY SRI: GIRISH YADAWAD, ADVOCATE FOR R1 SRI: ANANT MANDGI - SENIOR COUNSEL FOR SRI: RAMESH V ITAGI, ADVOCATE FOR R2 TO 6. SRIYUTHS: K.L. PATIL AND S.S. BETURMATH, ADVS FOR R7 SRI: M.M. PATIL, ADVOCATE FOR R9 R8 - SERVED)

THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF THE CODE OF CIVIL PROCEDURE, AGAINST THE ORDER DATED 17.04.2021 PASSED IN O.S. NO. 286/2019 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, MUDHOL, ALLOWING THE IA NO.4 FILED UNDER ORDER 39 RULES 1 AND 2 READ WITH SECTION 151 OF CPC.

THESE MFAs HAVING BEEN HEARD AND RESERVED ON 14.01.2022 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, M.G. UMA J., DELIVERED THE FOLLOWING:

COMMON JUDGMENT

The appellant in Miscellaneous First Appeal

No.100477 of 2021 being the plaintiff in O.S.No.286 of

2019 on the file of Additional Senior Civil Judge and JMFC

at Mudhol, (hereinafter referred to as 'the Trial Court') is

impugning the order dated 17.04.2021 passed in the said

suit on IA No.4 filed under Order XXXIX Rules 1 and 2 read

with Section 151 of CPC, whereunder, the said application

filed by respondent Nos.1 to 5 who were defendant Nos.1

to 5 in the suit came to be allowed, as a result of which,

the plaintiff and defendant Nos.6 to 10 were temporarily

restrained from causing damages to the crop standing in

the land bearing R.S.Nos.55, 59, 60/1 and 60/3 situated at

Melligeri Village, and obstructing the enjoyment of said

lands by defendant Nos.1 to 5, till further orders. The

appellants in Miscellaneous First Appeal No.100500 of

2021 being defendant Nos.6 and 7 are impugning the very

same order passed by the Trial Court.

2. Brief facts of the case are that, the appellant in

Miscellaneous First Appeal No.100477 of 2021 filed the suit

in O.S.No.286 of 2019 before the Trial Court against

defendant Nos.1 to 10 seeking a decree declaring that she

is having 1/4th share in the suit schedule properties and

for partition and separate possession of her share and also

for a consequential relief of restraining the defendants

permanently from obstructing the plaintiff's peaceful

possession and enjoyment of the properties.

3. It is contended by the plaintiff before the Trial

Court that deceased Mallappa @ Mallanagounda and

deceased Bhagirathi are her parents. Defendant Nos.1 and

6 are her brothers and defendant No.10 is her sister. The

propositus Mallanagouda died during 2012 and Bhagirathi

had pre-deceased him as she died in the year 2004.

Plaintiff and defendants are the members of Hindu

undivided joint family and they are in joint, peaceful

possession and enjoyment of the suit schedule properties,

which are described in Schedules B to F. The plaintiff and

defendant Nos.1, 4 to 6 and 10 being the class-I heirs of

the propositus, are having 1/4th share each in the

schedule properties.

4. It is stated that defendant No.8 who is the son

of defendant No.6 had filed similar suit for partition and

separate possession of the schedule properties in

O.S.No.29 of 2018 on the file of the learned Principal

Senior Civil Judge at Jamakhandi. The plaintiff herein was

arrayed as defendant No.6 in the said suit and she had

filed her written statement and the counter claim, seeking

her share in the suit properties. The said suit came to be

dismissed under Order VII Rule 11 of CPC, but the Court

had not taken note of the counter claim filed by the

plaintiff herein.

5. It is contended by the plaintiff that the

relationship between the parties was strained and the

defendants started causing obstruction to the plaintiff's

joint, peaceful possession and enjoyment of the suit

properties. When the plaintiff verified the revenue

records, she came to know that defendant Nos.1 and 6 got

changed the record of rights in respect of the suit schedule

properties and defendant No.1 got mutated the names of

defendant Nos.2 to 5 in some of the record of rights.

Similarly, defendant No.6 has also got mutated the names

of defendant Nos.7 to 9 in some of the record of rights

relating to 'B' schedule property. The said mutation

entries standing in the names of defendant Nos.2 to 5 and

7 are not binding on the plaintiff.

6. It is further contended by the plaintiff that

defendant Nos.1 to 6 have purchased the suit schedule 'C'

to 'F' properties, out of the joint family nucleus and

therefore, those properties are also joint family properties

which are liable for partition. Plaintiff is having 1/4th

share in all the suit schedule properties. It is stated that

the cause of action for the suit arose during December,

2018 when the defendants refused to effect partition and

allot her 1/4th share in the joint family properties.

Therefore, the plaintiff prays for decreeing the suit.

7. Defendant Nos.1 to 5 have appeared before

the Trial Court and filed their common written statement

denying the contentions taken by the plaintiff. It is

contended by defendant Nos.1 to 5 that the suit filed by

the plaintiff is barred under Order II Rule 2 and under

Section 10 of CPC. The plaintiff has suppressed the fact

that OS No.29 of 2018 was filed by the son of defendant

No.6 seeking similar relief for partition and separate

possession of the suit properties before the Principal Senior

Judge Court at Jamakhandi. The plaintiff being one of the

defendant in the said suit had filed counter claim.

However, the said suit came to be dismissed as not

maintainable. Defendant No.9 herein who is the plaintiff in

OS No.29 of 2018 has preferred RFA No. 100330 of 2019

before this Court, which is still pending for consideration.

These facts are deliberately suppressed by the plaintiff.

Therefore, the suit itself is liable to be dismissed in limine

as hit by Order II Rule 2 read with Section 10 of CPC.

8. Defendant Nos.1 to 5 have denied the

contention of plaintiff that the suit properties are the joint

family properties and she is having right, title and interest

over the same. On the other hand, it is contended that

during the life time of his father Mallappa @ Mallanagouda,

an oral partition took place between the said

Mallanagouda, the father of the plaintiff and defendant

Nos.1, 6 and 10 during 1978 and accordingly, M.E.No.812

of Melligeri village was effected. Thereafter, the respective

parties are enjoying their share. Thus, the plaintiff and

defendants are not in joint status and the suit is not

maintainable.

9. These defendants admitted the relationship

between the parties. It is admitted that the propositor

Mallanagounda died on 06.12.2012 and his wife Bhagirathi

predeceased him during the year 2004. But denied the

contention that the parties to lis are the members of

undivided joint family and the plaintiff is having 1/4th

share over the suit properties. It is stated that in view of

the oral partition and the resultant mutation entry,

defendant Nos.2 to 5 and 7 to 9 have separated

themselves from defendant Nos.1 and 6. It is specifically

denied that defendant Nos.1 to 6 and 10 who are class-I

heirs of Mallanagouda are having 1/4th share each in the

suit properties, except the suit schedule 'B' property

bearing R.S. No.156/1 of Melligeri village.

10. These defendants have contended that the

cause of action for the present suit and the cause of action

for filing the counter claim in O.S.No.29 of 2018 are one

and the same and therefore, the plaint is to be rejected

under Order VII Rule 11a of CPC.

11. Defendant Nos.1 to 5 have filed additional

written statement contending that the plaintiff has brought

the suit in collusion with defendant Nos.6 to 10. Initially,

defendant No.6 had filed a similar suit for partition and

separate possession of the suit schedule properties in

O.S.No.58 of 2017 before the Additional Senior Judge

Court at Jamakhandi. The said suit came to be dismissed

as per memo dated 05.09.2017. It is thereafter, the son

of defendant No.6 Avinash who is defendant No.8 herein,

filed O.S.No.29 of 2018 which also came to be dismissed

on 17.06.2019. It is further contended that Regular First

Appeal No.100330 of 2019 filed by defendant No.8 came

to be dismissed as withdrawn on 10.07.2020, reserving

liberty to the appellant to agitate her right in O.S.No.286

of 2019. In the meantime, there are several sales and

purchases of the properties from time to time evidenced

by mutation entries in that regard. It is contended that

land bearing R.S. Nos.59, 55, 9/1, 58/1, 60/2, 156/1 have

been divided as per M.E.No.812 of Melligeri village during

1978 and out of the same, R.S. No.59, 55 and 9/1 have

been allotted to defendant No.1 whereas, R.S. No.58/1

and 60/2 were allotted to the share of defendant No.6.

R.S. No.156/1 has been allotted to the share of Mallappa

Somappa Nyamagouda in respect of which, the plaintiff

and defendant Nos.6 and 10 have manipulated the records

as contended in para 3. Defendant No.6 who got mutated

his name in respect of R.S.No.9/1 of Melligeri village on

the basis of oral partition, sold the same on 24.07.1992

under M.E.No.1346. These facts were also suppressed by

the plaintiff.

12. It is contended by these defendants that the

properties standing in their names are separate and self

acquired properties acquired from the income derived from

him as a medical practitioner from 1981 to 2000 at

Gangavathi and thereafter at Jamakhandi and also from

the properties fallen to his share. Defendant No.1 had

availed huge loan from the bank for construction of

hospital and house at Jamakhandi. He is an income tax

assessee showing the income and expenditure in his

returns since 1998.

13. It is further contended that the plaintiff has

challenged M.E.No.812 of Melligeri village by filing RTS AP

No.115 of 2019 before the Assistant Commissioner,

Mudhol. The same came to be dismissed by order dated

29.01.2020. She preferred a revision in Revision Petition

No.58 of 2020 before the Deputy Commissioner, Bagalkot,

which came to be allowed by setting aside the mutation

entry in M.E.No.812 of Melligeri village dated 04.07.1978.

The said order passed by the Deputy Commissioner is

challenged by defendant No.1 before this Court by filing a

writ petition, which is still pending for consideration. This

court had granted stay of the impugned order.

14. It is contended that the plaintiff in collusion of

defendant Nos.6 to 10 is trying to cause damages to the

crop and borewell by trespassing over the land bearing RS

Nos.55 and 59, which was allotted under M.E.No.812 of

Melligeri village along with R.S. Nos.60/3 and 60/1 of

Melligeri village which was purchased by defendant No.1

from out of his own income. Therefore, defendant Nos.1

to 5 have also filed IA No.4 under Order XXXIX Rules 1

and 2 read with Section 151 of CPC seeking to restrain the

plaintiff and defendant Nos.6 to 10 from causing damages

and enjoyment of the suit properties bearing R.S.Nos.55,

59, 60/3 and 60/1 of Mellegeri village, till disposal of the

suit by way of temporary injunction.

15. They have also filed IA No.5 under Order XXVI

Rule 9 read with Section 151 of CPC, praying to appoint

Court Commissioner for ascertaining the damages caused

to the crops grown in the above said survey numbers by

defendant No.6.

16. Defendant Nos.1 to 5 have re-iterated their

contention as taken in their written statement and

additional written statement and contended that during the

pendency of suit, the plaintiff preferred a revision petition

before the Deputy Commissioner, Bagalkot in Revision

Petition No.58 of 2020 challenging the mutation in respect

of the suit property . The said revision petition came to be

allowed by the Deputy Commissioner and the name of

plaintiff got entered in respect of the property bearing

R.S.Nos.55 and 59, but however, her name was not

mutated in respect of R.S. No.9/1 of Melligeri village which

was sold by defendant No.6 by manipulating the revenue

records. The said order passed by the Deputy

Commissioner in revision petition is challenged by

defendant Nos.1 to 5 by filing the writ petition before this

Court. Therefore, the plaintiff and other defendants were

also bound by the order of this Court and they are bound

to maintain status quo in respect of the properties

mentioned in the application. It is stated that the plaintiff

along with defendant Nos.6 to 10 are in a hurry to damage

the standing crops grown in the above said survey

numbers, which was in the possession of defendant Nos.1

to 5 before establishing their right over the properties

before a Court of law and they damaged the crops by tress

passing over the land by using tractor and also manual

labours.

17. It is stated that right from 1978 till today,

defendant Nos.1 to 5 are in peaceful possession and

enjoyment of the properties held by them which was

evident by revenue records. Defendant Nos.6 to 10 have

caused damages to sugarcane crops by their illegal acts

which resulted in huge loss. Therefore, defendant Nos.1 to

5 sought for temporary injunction as stated above.

18. The plaintiff filed objection to IA No.4

contending that IA No.4 is not maintainable either in law or

on facts. It is stated that bald allegations were made by

defendant Nos.1 to 5 without producing any iota of

evidence. There is no prima facie case in favour of

defendant Nos.1 to 5. There is no cause of action to seek

temporary injunction. It is contended that there is no

independent cause of action to file IA No.4, therefore, the

plaintiff prayed for dismissal of the application. Similarly,

objection was also filed to IA No.5 filed under Order XXVI

Rule 9 read with Sec 151 of CPC. Similar objections were

filed by defendant Nos.6, 7, 8 and 10.

19. The Trial Court considered IA No.4 and IA No.5

filed by defendant Nos.1 to 5 and passed the common

order allowing IA No.4 granting temporary injunction

restraining plaintiff and defendant Nos.6 to 10 from

destroying the standing crops and obstructing enjoyment

of the above said suit property by defendant Nos.1 to 5 till

disposal of the suit. However, IA No.5 came to be

dismissed as the same is devoid of merits.

20. Being aggrieved by allowing of IA No.4 and

granting temporary injunction in favour of defendant Nos.1

to 6, the plaintiff has preferred the appeal in Miscellaneous

First Appeal No.100477 of 2021 and defendant Nos.6 and

10 have preferred Miscellaneous First Appeal No.100500 of

2021.

21. Heard Sri.Girish A Yadawad, learned counsel

for the appellant and Sri.Ananth Mandgi, learned senior

counsel for Sri.Ramesh V Itagi, learned counsel for the

respondent Nos.1 to 5 in Miscellaneous First Appeal

No.100477 of 2021, Sriyuths.Jagadish Patil and B M

Santosh, learned counsel for the appellants and Sri.Girish

A Yadawad, learned counsel for respondent No.1, Sri.Anant

Mandgi, learned senior counsel for Sri.Ramesh V Itagi,

learned counsel for respondent Nos.2 to 6, Sriyuths.K L

Patil and S S Beturmath, learned counsel for respondent

No.7 and Sri.M M Patil, learned counsel for respondent

No.9 in Miscellaneous First Appeal No.100500 of 2021.

22. Learned counsel for the appellant in

Miscellaneous First Appeal No.100477 of 2021 contended

that there is bald allegation made by defendant Nos.1 to 5

regarding causing of damages. No materials are produced

before the Court in support of such contention. No specific

act of causing damages is stated by defendant Nos.1 to 5.

There are no prima facie case in favour of defendant Nos.1

to 5. The balance of convenience is in favour of plaintiff,

as she is one of the member of the joint family having

1/4th share over the suit schedule properties. She being

the co-owner cannot be restrained by way of temporary

injunction. Since all the joint family properties are in joint

possession of the parties to the lis, no injunction could be

granted against any member of the joint family. Learned

counsel further submitted that the Trial Court without

considering these facts and circumstances proceeded to

allow IA No.4 and granted temporary injunction as prayed

for. Therefore, the impugned order passed by the Trial

Court is liable to be set aside.

23. Learned counsel placed reliance on the Full

Court decision of this Court in the case of

Smt.Shankunthalamma and Others VS

Smt.Kanthamma and Others1 to contend that defendant

Nos.1 to 5 cannot seek an order of temporary injunction

under Order XXXIX Rules 1 and 2 and that even under

Section 151 of CPC, no relief could be granted when there

is specific provision for grant of temporary injunction under

Order XXXIX Rules 1 and 2 of CPC. Learned counsel

further submitted that Order XXXIX Rule 1 (b) and (c)

makes it clear that it is only the plaintiff who can seek

temporary injunction and not the defendant in the suit.

Defendant Nos.1 to 5 have not made out any grounds

under Order XXXIX Rule 1(a) of CPC and therefore, the

Trial Court should have dismissed the application. The

Trial Court has rightly rejected IA No.5 filed under Order

ILR 2014 KAR 6025

XXIX Rule 9 of CPC, but however, allowed IA No.4 without

any basis. The Trial Court has given a specific finding that

there is no allegation regarding causing of damages, but,

however, allowed IA No.4 without any basis. The writ

petition filed by defendant No.1 is still pending and the

order passed by the Deputy Commissioner, Bagalkot is not

set aside. Therefore, defendant Nos.1 to 5 cannot rely on

the fact of filing the writ petition to seek injunction against

the plaintiff.

24. Learned counsel also submitted that the oral

partition set up by defendant Nos.1 to 5 cannot be

recognized. M.E.No.812 of Melligeri village was effected

behind the back of the plaintiff and defendant Nos.6 to 10.

When defendant Nos.1 to 5 do not claim ouster, they

cannot claim exclusive possession. Therefore, the

impugned order is self contradictory and is liable to be set

aside in the interest of justice. Accordingly, he prays for

allowing the appeal and setting aside the impugned order

in the interest of justice.

25. The learned counsel representing defendant

Nos.6 and 10 who are appellants in Miscellaneous First

Appeal No.100500 of 2021 supporting the contention of

the plaintiff contended that admittedly, the properties are

joint family properties. As per the explanation appended

to Section 6(5) of the Hindu Succession Act, a property

could be excluded from partition, only if there is registered

partition deed and not otherwise. Plea of oral partition

cannot be raised by the parties to the lis.

26. Learned counsel further submitted that

M.E.No.812 recorded in favour of defendant Nos.1 to 5 is

already set aside in the revision petition filed by the

plaintiff before the Deputy Commissioner and under such

circumstances, defendant Nos.1 to 5 cannot take

advantage of the said mutation entry in their favour. No

case of damage caused to the standing crop is made out

by defendant Nos.1 to 5. Under such circumstances, the

Trial Court was wrong in passing the impugned order.

Hence, he prays for allowing the appeal in the interest of

justice.

27. Per contra, learned counsel for defendant

Nos.1 to 5/respondent Nos.1 to 5 in both the appeals

opposing the contention taken by the plaintiff and

defendant Nos.6 and 10 submitted that similar suit was

filed seeking partition of the suit properties by defendant

No.6 in O.S.No.29 of 2018. The said suit came to be

dismissed under Order VII Rule 11 of CPC. But in the said

plaint, defendant No.6 herein had specifically stated that

there was a partition in respect of the suit property. He

further contended that defendant No.6 has filed O.S.No.58

of 2017 in respect of the same suit properties, but the said

suit came to be dismissed as settled out of court, vide

order dated 05.09.2017. Moreover, defendant No.6 had

filed Regular First Appeal No.100330 of 2019 before this

Court challenging the dismissal of his suit in O.S.No.29 of

2018 but subsequently the same was withdrawn as not

pressed. Accordingly, the first appeal was dismissed,

however, the counter claim filed in the said suit by the

plaintiff is still pending. Under such circumstances, this

second suit seeking similar relief is not maintainable in

view of Order II Rule 2 of CPC.

28. Learned counsel placed reliance of the decision

of Hon'ble Apex Court in P K Narayanan Raja Vs

Ambika and another2, and relied on para 6 in support of

his contention, which reads as under:

"6. If that be the position then, in our opinion, the property, which is the subject matter of this appeal, should also necessarily be subjected to its adjudication in OS No.46 of 1986 along with other properties. In any event, in our view, it would be just and proper that all properties belonging to or claimed to be belonging to the family or/and its members though denied by the parties against each other should be made the subject matter of one civil suit rather than two civil suits."

29. Learned counsel also submitted that IA No.4

was filed seeking to restrain the plaintiff and defendant

(2018) 9 SCC 164

Nos.6 to 10 from causing damages and enjoyment of the

suit properties in respect of four items of the properties.

Two properties were allotted to the share of defendant

No.1 in the oral partition dated 04.07.1978. Accordingly,

M.E.No.812 was effected. Two other properties were

purchased by defendant No.1 in his individual right. As per

M.E.No.812, defendant Nos.1 to 5 were in exclusive

possession and enjoyment of the suit properties mentioned

in the application since 1978. Only after filing of the suit,

the said M.E.No.812 came to be challenged by the plaintiff.

The Assistant Commissioner dismissed the claim of the

plaintiff on 29.01.2020. However, a revision petition was

filed before the Deputy Commissioner which came to be

allowed. Thus, M.E.No.812 which came into effect during

1978 was set aside. The said order of the Deputy

Commissioner is challenged by defendant Nos.1 to 5

before this Court by filing Writ Petition No.101145 of 2021

which is still pending and interim order of stay of the

impugned order passed by the Deputy Commissioner

setting aside M.E.No.812 is also passed. Therefore, the

plaintiff and defendant Nos.6 to 10 cannot take advantage

of the order passed by the Deputy Commissioner.

30. Learned counsel further submitted that IA No.4

was filed under Order XXXIX Rules 1 and 2 read with

Section 151 of CPC. Specific allegations were made in the

application accompanying the application regarding the

act of the plaintiff and defendant Nos.6 to 10 in destroying

the standing crops over the land in question by using

tractor and manual labour. Even though objections were

filed to the said application, the same are very bald. There

is not even denial of the specific averment regarding

destruction of the standing crops. The only ground urged

by the parties is that defendant Nos.1 to 5 cannot maintain

an application under Order XXXIX Rule 1 of CPC.

31. The learned counsel contended that as per

Order XXXIX Rule 1 (a) of CPC, any party to the suit can

file and maintain an application to prevent cause of

damages to the suit property. Moreover, Section 151 of

CPC is about saving of inherent powers of the Civil Court

and therefore, the Civil Court will have an inherent powers

to grant relief beyond the provisions of CPC, to meet the

ends of justice. The Trial Court considering all these facts

and circumstances and also the position of law, proceeded

to allow IA No.4 and granted temporary injunction. When

defendant Nos.1 to 5 were in peaceful possession and

enjoyment of the land in question to the exclusion of the

plaintiff and other defendants since from 1978, the status

quo is to be maintained till disposal of the suit.

32. The learned counsel further submitted that

even though the learned counsel for the plaintiff placed

reliance on the decision of this Court in

Shankunthalamma (supra), the position of law is made

clear in the said decision in paras 30 and 33, (i) and (iii).

Thus he also placed reliance on the same.

33. Learned counsel also placed reliance on the

decision of this Court in Kamalamma and Others Vs A

Vivekananda3, whereunder, the co-ordinate Bench of this

Court referred to the Full Bench decision in

Shankunthalamma (supra), to contend that interim

injunction could be granted under Section 151 of CPC.

34. Learned counsel further submitted that the

Trial Court after taking into consideration all these facts

and circumstances has passed a reasoned order. The Trial

Court never gave a finding that no damages were caused

by the plaintiff and defendant Nos.6 to 10. But on the

other hand, it is observed that particulars of damages are

not given and defendant Nos.1 to 5 are relying on the

photographs to prove such damages and therefore it was

held that the Court Commissioner cannot be appointed for

ascertaining the damages caused to the crops. There is no

illegality or perversity in the impugned order. Thus, the

learned counsel for defendant Nos.1 to 5 seeks for

dismissal of both the appeals as devoid of merits.

MANU/KA/5420/2018

35. In view of these rival contentions urged by

learned counsel for parties to the lis, the point that would

arise for my consideration is:

"Whether the appellants have made out a case to interfere with the impugned order dated 17.04.2021 passed by the Trial Court in allowing IA No.4 filed under Order XXXIX Rules 1 and 2 read with Section 151 of CPC?"

My answer to the above point is in 'Negative' for the

following:

REASONS

36. The relationship between the parties in the suit

is not disputed. Admittedly, the plaintiff is one of the

daughter of the propositor. Defendant No.1 is the brother

of the plaintiff. It is the specific contention of the plaintiff

that the suit schedule properties are the joint family

properties and she is entitled for 1/4th share in the same.

Defendant Nos.1 to 5 are the contesting defendants,

denied that the suit properties are the joint family

properties and that the plaintiff is having any share over

the same. A specific defence is taken that during the

lifetime of propositors Mallanna @ Mallanagouda, an oral

partition had taken place between the said Mallanagouda

and defendant Nos.1, 6 and 10 during 1978. It is also

stated by these defendants that RS Nos.59, 55 and 9/1 of

Melligeri village have been allotted to the share of

defendant No.1, whereas RS Nos.58/1 and 60/2 were

allotted to defendant No.6. RS No.156/1 was allotted to

the share of Mallappa @ Mallanagouda, but it is alleged

that the plaintiff and defendant Nos.6 and 10 have

manipulated the records as contended in the written

statement. It is also stated that defendant No.6 got

mutated his name in respect of RS No. 9/1 of Melligeri

village on the basis of oral partition and also sold in favour

of third party on 24.07.1992. Defendant No.1 also

contended that RS Nos.60/1 and 60/3 of Melligeri village

was purchased by him from out of his own income and not

from the joint family nucleus, as contended by the plaintiff.

Therefore, these properties were mutated in his name and

M.E. No.812 of Melligeri village about 40 years back i.e.,

04.07.1978. Thus, it is the contention of defendant Nos.1

to 5 that the plaintiff and other defendants are trying to

cause damages to the crop that was grown in these lands,

which exclusively belong to them. Therefore, IA No.4 was

filed seeking temporary injunction restraining the plaintiff

and other defendants from causing damages to the crop or

the property till disposal of the suit. The said application

came to be allowed by the Trial Court under the impugned

order.

37. Both the parties to the appeals placed reliance

on the decision of this Court rendered by the Full Bench in

Smt.Shakuntalamma (supra). The Full bench of this

Court considered the reference, "whether the defendant in

a suit for declaration and injunction can maintain an

application for injunction under Order XXXIX Rule 1(c) of

CPC, 1908?" It referred to various other judgments and

by over ruling the dictum laid down by this Court in

Sugunda Bai (supra), held in para 33 as under:

"30. At the outset, the provisions of Order XXXIX Rule 1 and 2 CPC are not interpreted in SUGANDA BAI's case. Secondly, Order XXXIX Rule 1(c) was not in the statute book as on the date of that judgment and it came to be incorporated w.e.f. 01.02.1977 by Act No. 104/1976. Thirdly, this Court while deciding SUGANDA BAI's case relied on the judgments of the English Court, which were based on common law whereas, in the case on hand we are called upon to interpret a statutory provision contained in the Code of Civil Procedure, a codified law. Nowhere in Order XXXIX Rule 1 and 2 of CPC are the words "cause of action" referred to. Therefore, it would be contrary to the statutory provision contained in the Code of Civil Procedure to hold that the defendant can maintain an application for injunction on the same cause of action, on which the plaintiff has come to the Court.

33. The correct legal position as is clear from the statutory provision is as under:

(i) Both the plaintiff and the defendant can maintain an application under Order XXXIX Rule 1(a) of the Code for the reliefs set out in the said provision;

(ii) ......

(iii) In cases which do not fall under Order XXXIX Rule 1 of the Code, the Court has the inherent jurisdiction to grant the relief of injunction in its discretion, if it is satisfied that such an order is necessary to meet the ends of justice or to prevent abuse of process of the court and nothing in this Code shall limit or otherwise affect such inherent power of the court".

38. Thus, the plain reading of the above would

make the position of law clear that even a defendant in a

suit can claim the relief of temporary injunction under

Order XXXIX Rule 1(a) of the Code as set out in the said

provision. Even if the case do not fall under Order XXXIX

Rule 1(a) of CPC, the Court under its inherent jurisdiction

can proceed to grant the relief, if it is satisfied that such an

order is necessary to meet the ends of justice, or to

prevent the abuse of process of Court. Therefore, the

contention of the learned counsel for the contesting parties

that the Trial Court could not have granted the relief in

favour of defendant Nos.1 to 5 under any circumstances,

cannot be accepted.

39. It is the specific contention of defendant Nos.1

to 5 that there was an oral partition between the father

and sons during 1978 in respect of the subject property

mentioned in IA No.4 before the Trial Court. In pursuance

of such oral partition, the properties were mutated in the

names of Mallana @ Mallanagouda, defendant Nos.1 and 6.

Defendant Nos.1 to 5 have produced M.E. No.812 of

Melligeri village, which disclose that during the lifetime of

Mallanna @ Mallanagouda, the partition was effected,

whereunder the land bearing RS Nos.59, 55 and 9/1 were

allotted to the share of defendant No.1 and the land

bearing RS Nos.58/1 and 60/2 were allotted to the share

of defendant No. 6. The land bearing RS No.156/1 was

retained by the father Mallanagouda. Defendant Nos.1 to

5 are also relying on RTC extracts since from the year

1974-75 in respect of these properties. The defendants

have also produced RTC 60/1, 60/1B, which prima facie

disclose that those properties were purchased by

defendant No.1. All these documents prima facie supports

the contention of defendant Nos.1 to 5 at present. Even

though the plaintiff and defendant Nos.6 to 10 are

contesting the matter on the ground that the properties

are joint family properties and all the parties are in joint

possession of the same, the same is to be established

during trial. If in the meantime, the exclusive possession

of the subject properties as claimed by defendant Nos.1 to

5 is disturbed and there is act of damage and destruction,

the same cannot be compensated in terms of money. On

the other hand, if the plaintiff is to succeed after full

fledged trial, she will be entitled for appropriate relief for

ousting her from the joint possession of the properties in

question.

40. It is the specific contention of defendant Nos.1

to 5 that initially defendant No.6 has filed similar suit for

partition and separate possession of the suit properties.

The plaintiff had in fact filed counter claim in OS No.29 of

2018. Even though OS No.29 of 2018 came to be

dismissed under Order II Rule 2 of CPC, the counter claim

is still pending. This fact is never disputed by the plaintiff.

Whether the suit of the plaintiff is maintainable when the

counter claim filed by her in OS No.29 of 2018 is still

pending, is to be considered by the Trial Court. A finding

is to be recorded by the Trial Court as to whether the

plaintiff is to be declared as the co-parcener having 1/4th

share in the suit properties. In the meantime, the

contention of defendant Nos.1 to 5 is prima facie

supported by mutation entries and record of rights which

cannot be ignored at this stage, to reject IA No.4 filed by

them.

41. Admittedly, M.E. No.812 of Melligeri village

was in force since 1978 and it came to be challenged by

the plaintiff by filing RTSAG No.115 of 2019 before the

Assistant Commissioner, Jamakhandi which also came to

be dismissed holding that a suit for partition is already

filed and the parties can agitate their rights before the Civil

Court. The said order passed by the Assistant

Commissioner was challenged before the Deputy

Commissioner, Bagalkot in Revision Petition No.58 of

2020, which came to be allowed and M.E.No.812 came to

be set aside as per MR No.T102 of 2020-21. All these

developments were only after filing of the suit before the

Trial Court. Under such circumstances, the contention

taken by defendant Nos.1 to 5 that only after the order

passed by the Deputy Commissioner, Bagalkot setting

aside M.E. No.812 of Melligeri village, the plaintiff and

other defendants started interfering with peaceful

possession and enjoyment of subject properties, they

trespassed into the land and caused damages assumes

importance. These facts and circumstances gives rise to a

reasonable apprehension of damage/destruction of the

property/crop as alleged by defendant Nos.1 to 5. Under

such circumstances, I am of opinion that defendant Nos.1

to 5 have made out a prima facie case. Balance of

convenience is also in their favour. If the relief sought is

not granted, defendant Nos.1 to 5 will suffer great loss and

hardship which cannot be compensated in terms of money,

but on the other hand, if the plaintiff would succeed in the

suit for partition and separate possession, she can seek

damages or mense profits to make good the loss.

42. Even though defendant Nos.1 to 5 have made

specific averments in the affidavit accompanying IA No.4

and the plaintiff filed objections to the said application,

there is absolutely no specific denial of such averments,

except contending that defendant Nos.1 to 5 have no

independent cause of action to seek temporary injunction

and there is no prima facie case for grant of relief. The

contention taken by the plaintiff and other contesting

defendants with regard to the requirement of independent

cause of action to seek temporary injunction by the

defendant and that no such temporary injunction could be

granted either under Order XXXIX Rule 1(a) or under

Section 151 of CPC, is to be negatived in view of settled

proposition of law as laid down by this Court in

Shakuntalamma (supra).

43. I have gone through the impugned order

passed by the Trial Court. It has taken into consideration

all these facts and circumstances and has arrived at a right

conclusion. I do not find any reason to interfere with the

same.

44. In view of the discussions held above, I am of

the opinion that both the appeals are liable to be dismissed

as devoid of merits. Hence, I answer the above point in

Negative.

The appeals are dismissed.

The parties are directed to bear their own costs.

Sd/-

JUDGE

*bgn/-