Karnataka High Court
Sri.G.A.Krishna Reddy vs Smt.G.K.Bhagya on 30 May, 2022
Bench: B.M.Shyam Prasad
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF MAY, 2022
BEFORE
THE HON'BLE MR.JUSTICE B.M.SHYAM PRASAD
MISCELLANEOUS FIRST APPEAL NO.1976/2022 (CPC)
BETWEEN:
SRI.G.A.KRISHNA REDDY
S/O LATE ANKANNA,
AGED ABOUT 75 YEARS,
R/AT NO 215/2,
VINAYAKA NAGAR
GUNJUR VILLAGE,
SARJAPURA MAIN ROAD,
VARTHUR HOBLI,
BENGALURU - 560 087.
... APPELLANT
(BY SRI. R.S. RAVI, SENIOR ADVOCATE FOR
SRI. N. KUMAR, ADVOCATE)
AND:
1. SMT.G.K.BHAGYA
@ SMT. G. K. BHAGYALAKSHMI
W/O A PAPA REDDY,
AGED ABOUT 42 YEARS,
R/AT NO 389/2/19,
GROUND FLOOR
BEHIND AJAY VET PHARMA
NEKKUNDI DOMMASANDRA VIA
VARTHUR, BENGALURU - 560 087.
2. SRI G K PALAKSHA
S/O SRI G. A. KRISHNA REDDY,
AGED ABOUT 40 YEARS,
VINAYAKA NAGAR,
NEAR MUNESHWARA TEMPLE
GUNJUR VILLAGE,
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SARJAPURA MAIN ROAD,
VARTHUR HOBLI,
BENGALURU - 560 087.
3. SMT G. K. BHAVITHA
W/O SRI RAMESH REDDY,
AGED ABOUT 38 YEARS,
R/AT HAROHALLI VILLAGE
MUTHSANDRA POST,
ANUGONDANAHALLI HOBLI,
HOSAKOTE TALUK, BENGALURU - 560 087.
... RESPONDENTS
(BY SRI.C. SHANKAR REDDY, ADVOCATE FOR
SRI.A. RAJESH, ADVOCATE FOR R.1)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
ORDER XLIII RULE 1(r) R/W SECTION 151 OF CPC AGAINST
THE ORDER DATED.14.02.2022 PASSED ON IA NO.1 IN
O.S.NO.1174/2020 ON THE FILE OF THE I ADDITIONAL SENIOR
CIVIL JUDGE, BENGALURU RURAL DISTRICT, ALLOWING IA
NO.1 FILED U/O.XXXIX RULE 1 AND 2 OF CPC.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
The appellant, who is the first defendant in
O.S.No.1174/2020 on the file of the I Additional Senior
Civil Judge, Bengaluru Rural District, Bengaluru (for
short, 'the Civil Court'), has impugned the Civil Court's
order dated 14.02.2022. The Civil Court by this
impugned order has allowed the first respondent -
plaintiff's application (IA No.1) under Order XXXIX Rule
1 and 2 of the Code of Civil Procedure 1908 for
restraining the appellant and the other defendants from
alienating the suit schedule properties until the
dismissal of the suit.
2. The first respondent's case is that the
appellant, who is the father, offered to divide the suit
schedule properties equally between himself and his
three children, including the plaintiff, and accordingly
partition deed dated 5.4.2006 is executed. At the time
of execution of the partition deed, it was agreed that the
lands in Sy.No.215/2 measuring 1 acre 1 guntas and in
Sy.No.269 measuring 1 acres 26 guntas with karab of 2
guntas of Gunjur Hobli, Varthur Hobli, Bengaluru
[schedule 'B' properties] would be retained by the
appellant for his maintenance and a separate document
would be executed later for division of these properties.
It is because of this promise she has agreed for partition
of the suit schedule 'A' properties as mentioned in the
partition deed dated 5.4.2006. But, the appellant has
refused to execute further documents for the suit
schedule 'B' properties.
3. The Civil Court has tested the first
respondent's case in the light of the appellant's defense
based on the earlier partition between himself and his
father and brothers in the year 1968, the pleadings in
the subsequent suit by the appellant's brothers in
O.S.No.450/2008 on the demise of the father and the
gift deed executed by the appellant in favour of the first
respondent for a site in one of the suit schedule 'B'
properties. The Civil Court has opined that the relevant
questions are a matter for trial and therefore, the
parties must be directed to maintain status quo and the
appellant and the other defendants must be restrained
from alienating the suit schedule properties.
4. Sri R.S.Ravi, the learned Senior Counsel
appearing on behalf of Sri N. Kumar who is on record
for the appellant, submits that it cannot be disputed
that the appellant purchased suit schedule 'A' and 'B'
properties in the months of May 1978 and May 1980
respectively. As of the date of partition between the
appellant's father and his brothers, the appellant had
purchased item No.1 of the suit schedule 'B' properties
but had not purchased item No.2 of the suit schedule
'B' properties. However, Item No.1 of the suit schedule
'B' properties is not included in the partition deed. This
fact substantiates the appellant's case that he has
purchased not only this property but also item No.2 of
the suit schedule 'B' properties out of his own earnings.
5. Sri R.S.Ravi further submits that the fact
that these two properties are the appellant's self
acquired properties would also be borne out by the
pleadings in the suit in O.S.No.450/2008 commenced
by the appellant's brothers after the demise of his
father. Neither of the suit schedule 'B' properties is
included in the plaint and the claim is only insofar as
one of the residential properties that is not partitioned
in the year 1968. The first respondent has suppressed
the fact that the appellant, who has developed the item
No.2 of the suit schedule 'B' properties, has executed a
gift deed transferring one of the sites in favour of the
first respondent.
6. Sri. R.S.Ravi submit that these
circumstances prima facie show that the first
respondent has not come to the Court with clean hands,
and the Civil Court, without considering the significance
of these circumstances in proper perspective, could not
have decided either the question of prima facie case or
other parameters for grant of injunction.
7. Sri C.Shankar Reddy, the learned counsel
who is permitted to appear for the first respondent-
plaintiff, on the other hand, takes this Court through
the impugned order to emphasize that the Civil Court
has recorded the appellant's reliance on the aforesaid
circumstances and the decision to restrain the appellant
and the other defendants from alienating the suit
schedule properties is because of the result of
consideration of these circumstances. Therefore, this
Court must dismiss the appeal.
8. This Court on perusal of the impugned order
must opine that the Civil Court, though has referred to
the partition deed in the year 1968 and the gift deed
that is executed by the appellant in favour of the first
respondent, has not examined the same to conclude
whether the first respondent's case is established
insofar as the first respondent's claim that even the suit
schedule 'B' properties are ancestral properties and
therefore, must be partitioned. It is trite that while
considering all applications, especially an application
under Order XXXIX Rule 1 and 2 of Code of Civil
Procedure, the Courts must consider, as against a mere
reference, all the circumstances relied upon by the
parties and then decide on merits of the claim for
interim injunction. The impugned order must fail on
this ground.
9. At this stage, Sri R S Ravi submits that some
portions of both the lands described in the suit schedule
'B' properties are acquired by the local authority viz.,
BBMP for formation of road and with this acquisition,
the appellant, as the registered owner of these two
portions, would be entitled for TDR. The appellant,
during the pendency of the suit, would undertake not to
alienate any portion of the un-acquired extents in these
two properties but he must be given liberty to complete
documentation to secure TDR and to deal with the same
subject to working out of equities in favour of the first
respondent even insofar as TDR that is issued and
utilized by the appellant if the first respondent - plaintiff
succeeds. Sri R.S.Ravi further submits that out of the
total extent of 2 acres 27 guntas in item No.2 of the suit
schedule 'B' properties, the authorities have indicated
that an extent of 22575 sq.ft. would be acquired and the
authorities are yet to indicate the extent that would be
acquired in item No.1 of the suit schedule 'B' properties.
10. If only portions of the lands in suit schedule
'B' properties are acquired and there is an undertaking
that the appellant would not in any manner deal with
the un-acquired extents in these lands [which would be
more than the first respondent - plaintiff's share], the
undertaking would protect the first respondent's claim
in the event she succeeds in the suit for 1/4th share.
Therefore, this Court is of the considered view that it
would be just and reasonable to modify the impugned
order to enable the appellant to obtain and utilize the
TDR that would be issued consequent to the acquisition
of portions in the suit schedule 'B' properties, but
subject to the condition that the appellant shall not
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alienate the un-acquired extents in these two portions
until the disposal of the suit and the appellant's
utilization of TDR would be subject to equities in the
final outcome of the suit. Hence the following:
ORDER
[a] The appeal is allowed in part.
[b] The impugned order dated 14.2.2022
in O.S.No.1174/2020 on the file of the
I Additional Senior Civil Judge,
Bengaluru Rural District, Bengaluru, is
modified confirming that there shall be
an interim order restraining the
appellant in any manner dealing with
the suit schedule 'B' properties which
are not acquired by the BBMP for road
during the pendency of the suit.
[c] The appellant shall be entitled to utilize
the TDR which could be issued by the
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authorities but on the condition that
the appellant's utilization of such TDR
will be subject to the rules of working
out equities in the event the first
respondent succeeds in her claim in
the suit.
SD/-
JUDGE
SA
Ct:sr
