Sri R Chandrakumar vs Smt. Dhanalakshmi
2022 Latest Caselaw 10797 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 14TH DAY OF JULY, 2022

                          BEFORE

         THE HON'BLE MR.JUSTICE B.M.SHYAM PRASAD

       MISCELLANEOUS FIRST APPEAL NO.4175/2021 (CPC)

BETWEEN:

1.     SRI R. CHANDRAKUMAR
       SON OF MR. RUDRAPPA,
       AGED ABOUT 57 YEARS,
       RESIDING AT NO.315,
       BANASHANKARI NILAYA,
       6TH CROSS, 1ST STAGE, K.S.LAYOUT,
       BENGALURU - 560 078.

2.     SRI K R PRAKASH
       SON OF RUDRAPPA,
       AGED ABOUT 51 YEARS,
       RESIDENT OF KETHOHALI
       VILLAGE,
       CHUNCHANKUPPE POST,
       TAVEREKERE HOBLI,
       BANGALORE SOUTH TALUK.
                                           ... APPELLANTS
(BY SRI. ASHOK KUMAR B G, ADVOCATE)

AND:

1.     SMT. DHANALAKSHMI
       D/O OF D.RAMANNA,
       AGED ABOUT 43 YEARS,
       RESIDENT OF BIDALURU VILLAGE,
       BANGALORE RURAL DISTRICT.
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2.   SMT. SUJATHA
     D/O OF D.RAMANNA,
     AGED ABOUT 42 YEARS,
     RESIDING AT WARD NO.22,
     PRASHANTHNAGAR, DEVANAHALLI,
     BANGALORE 562110.

3.   SRI D RAMANNA
     SON OF LATE DODDANNA,
     AGED ABOUT 62 YEARS,

4.   SRI R. SRINIVASA
     SON OF D RAMANNA,
     AGED ABOUT 39 YEARS,


5.   SRI R VENUGOPAL
     SON OF D RAMANNA,
     AGED ABOUT 37 YEARS,

     RESPONDENT 3 TO 5 ARE
     RESIDING AT NO.141/1,
     ABHINANDA NILAYA,
     NEAR MILK DAIRY,
     SHANMANGALA,BIDADI HOBLI,
     RAMANAGARA - 562 109.
                                     ... RESPONDENTS
(BY SRI. H. BEERESH, ADVOCATE FOR
    SRI. K.T. SESHAGIRI, ADVOCATE FOR R1 & R2)


     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST THE
ORDER DATED 22.07.2021 PASSED ON IA NO.1 IN
O.S.NO.230/2020 ON THE FILE OF THE ADDITIONAL
SENIOR CIVIL JUDGE AND JMFC, MAGADI, ALLOWING IA
NO.1 FILED U/O.39 RULE 1 AND 2 OF CPC.

     THIS MISCELLANEOUS FIRST APPEAL COMING ON
FOR ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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                         JUDGMENT

This appeal is by the fourth and fifth defendants

in O.S. No.230/2020 on the file of the Additional Senior

Civil Judge, Magadi [for short, 'the civil Court']. The civil

Court by the impugned order dated 22.07.2021 has

allowed the first and second respondents -the plaintiffs'

application [I.A. No.1] under Order XXXIX Rules 1 and 2

of the Code of Civil Procedure, 1908 [for short, 'the

CPC'] restraining the appellants from alienating the suit

schedule property.

2. The respondents have filed the suit in O.S.

No.230/2020 for partition of the land measuring 2 acres

23 guntas in Sy. No.10/1 of Kethohalli Village,

Chunchanaguppe Post, Thavarekere Hobli, Bengaluru

South District [the subject property] and for declaration

that the sale deeds dated 03.03.2003 and 02.09.1999

executed by their father and brothers [the first and third

defendants] in favour of the appellants respectively

would not be binding on their share. These respondents

contend that their father [the first defendant] acquired

the subject property in a partition with his brother

Gangappa and the revenue records are accordingly

mutated in his favour. Therefore, they would be entitled

for a share and their father and brothers have illegally

sold the subject property in favour of the appellants.

These respondents have asserted 02.08.2020 as the

date of cause of action. The appellants have resisted

the suit contending inter alia that they are the bona fide

purchasers of the subject property and as of the date of

the suit, the subject property was not a composite

property.

3. Sri Ashok Kumar B G, the learned counsel

for the appellants, submits that the partition suit is filed

in the year 2020 though the first sale deed is in the year

1999 and describing the subject property as a

composite property notwithstanding the sale in two

portions. The appellants, who are bona fide purchasers,

cannot be restrained from alienating their respective

interests in the subject property. Sri. Ashok Kumar

also submits that the chief reason for filing this appeal

is because the respondents, taking advantage of the

impugned order, are trying to interfere with the

appellants' possession of the respective portions.

4. In response, Sri. H.Beeresh, the learned

counsel for the contesting respondents, submits that

the temporary injunction granted by the civil Court is as

against alienation and there cannot be any interference

with the actual use and possession on the strength of

such interim order. This would indeed be so in law, and

there cannot be any interference because the appellants

apprehend otherwise.

5. As regards the appellants' other ground that

they are bonafide purchasers and they cannot be

restrained by an order of injunction against alienation,

it would suffice for this Court to observe that it is a

matter for trial. The contesting respondents, when it is

undisputed that their father acquired the subject

property in a family partition with his brother, have

made out a prima facie case for trial in setting up cause

of action in the month of August 2020. This would

especially be so when there is nothing on record to

indicate the subject property could not be an ancestral

property. The order of temporary injunction against

alienation also works out the balance of convenience

and irreparable hardship in his favour.

6. Therefore, this Court is of the considered

view that the impugned order does not suffer from any

legal infirmity, but the appeal must be disposed of

observing that the contesting respondents cannot, on

the strength of the impugned order, interfere with the

appellants' possession of the subject property.

The appeal stands disposed of accordingly.

SD/-

JUDGE

AN/-, RB