Karnataka High Court
Sri Kantharaju K vs Smt M.Gowramma on 21 August, 2023
Bench: H T Prasad
-1-
NC: 2023:KHC:29673
MFA No. 2915 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 2915 OF 2023(CPC)
BETWEEN:
1. SRI KANTHARAJU K
S/O KAVERAPPA.R
AGED ABOUT 40 YEARS
RESIDING AT NO. 155
2ND A VENUE, TEACHER'S COLONY
KENDRIYA UPADAYAYARA SANGHA
VENKATAPURA, KORAMANGALA 1ST BLOCK
BENGALURU-560034.
2. SRI. M. RAMACHANDRA REDDY
S/O LATE MUNIREDDY
AGED ABOUT 69 YEARS
RESIDING AT MANTAPA VILLAGE
BANNERGHATTA POST
BENGALURU-560083.
Digitally signed ...APPELLANTS
by
DHANALAKSHMI (BY SRI. T SESHAGIRI RAO., ADVOCATE)
MURTHY
Location: High AND:
Court of
Karnataka
1. SMT M.GOWRAMMA
SINCE DECEASED BY LR'S.
1(a) SMT K VASANTHA
D/O LATE M KRISHNAPPA
AGED ABOUT 49 YEARS
RESDING AT No.26, CHOODASANDRA
HUSKUR POST, SARJAPUR HOBLI
ANEKAL TALUK
BENGALURU DISTRICT-560 099.
-2-
NC: 2023:KHC:29673
MFA No. 2915 of 2023
1(b) SMT. K. SUJATHA
S/O LATE M KRISHNAPPA
W/O SRI M V RAMESH
AGED ABOUT 44 YEARS
RESIDING AT No.131, 10TH CROSS
1ST MAIN ROAD, VENKATAPURA
KORAMANGALA POST, BENGALURU-560 034.
1(c) SMT. K. CHANDRAKALA
S/O LATE M KRISHNAPPA
W/O SRI ASHOKA SIDDAPPA BANTANUR
AGED ABOUT 43 YEARS
RESIDING AT No.70, 10TH CROSS
1ST MAIN ROAD, VENKATAPURA
KORMANGALA POST, BENGALURU-560 034.
1(d) SMT. K MANJULA
D/O LATE M KRISHNAPPA
W/O SRI. B G SHIVAKUMAR
AGED ABOUT 39 YEARS
RESIDING AT No.108, 11TH CROSS
1ST MAIN ROAD, VENKATAPURA
KORMANGALA POST, BENGALURU-560034.
1(e) SMT. K. ASHA RANI
D/O LATE M KRISHNAPPA
W/O SRI. E. MOHAN NAIDU
AGED ABOUT 37 YEARS
RESDING AT NO/123, 11TH CROSS
1ST MAIN ROAD, VENKATAPURA
KORMANGALA POST, BENGALURU-560 034.
1(f) SRI. RAVI KUMAR K
S/O LATE PRAKASH KUMAR K
AGED ABOUT 55 YEARS
RESIDING AT No.108, 11TH CROSS
1ST MAIN ROAD, VENKATAPURA
KORMANGALA POST, BENGALURU-560034.
1(g) MST. DARSHAN
S/O LATE PRAKASH KUMAR K
AGED ABOUT 17 YEARS
-3-
NC: 2023:KHC:29673
MFA No. 2915 of 2023
RESDING AT No.108, 11TH CROSS
1ST MAIN ROAD, VENKATAPURA
KORMANGALA POST, BENGALURU-560 034.
REPRESENTED BY GAURDIAN
W/O LATE K KRISHNAPPA
AGED ABOUT 73 YEARS
RESDING AT No.123, 11TH CROSS
1ST MAIN ROAD, VENKATAPURA
KORMANGALA POST, BENGALURU-560 034.
2. SMT. RENUKA KUMARI.M
D/O MUNIYAPPA
AGED ABOUT 42 YEARS
RESIDING AT NO. 15/4
HMT MAIN ROAD, KEB QUARTERS
BEL CIRCLE, JALAHALLI
BENGALURU-560013.
...RESPONDENTS
(BY SRI.R.R. DEVENDRA GOWDA., ADVOCATE FOR R1(a-e):
NOTICE TO R1(f & g) AND R2 IS HELD SUFFICIENT
V/O DATED:13.07.2023)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) R/W
SECTION 151 OF CPC, AGAINST THE ORDER DATED
20.04.2023 ON I.A.NO.1 IN OS.NO. 25609/2023 ON THE FILE
OF THE XXVIII ADDITIONAL CITY CIVIL JUDGE, MAYO HALL
UNIT, BENGALURU CCH-29, ALLOWING THE I.A.NO.1/2023
FILED UNDER ORDER 39 RULE 1 AND 2 OF CPC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by defendant Nos. 1 and 3 under
Order 43 Rule 1(r) of CPC, challenging the order dated
20.04.2023 passed by the 28th Additional City Civil Judge,
NC: 2023:KHC:29673
MFA No. 2915 of 2023
Bangalore in O.S.No.25609/2023, whereby IA No.1/2023
filed by the plaintiffs under Order 39 Rules 1 and 2 of CPC
has been allowed restraining the defendants from putting
up any construction in the suit schedule property.
2. For the sake of convenience, parties are referred
to as per their ranking before the trial court.
3. Even though the matter is posted for admission,
with the consent of the learned counsel for the parties, it
is taken up for final hearing.
4. The plaintiffs filed a suit for declaration and
injunction. Along with the plaint, plaintiffs also filed an
application under Order 39 Rules 1 and 2 of CPC. After
service of summons, defendant Nos. 1 and 3 appeared
through their counsel and filed written statement and also
made a counter-claim. After hearing the parties, the trial
court, by impugned order dated 20.04.2023, allowed the
application filed by the plaintiffs under Order 39 Rules 1
and 2, restraining the defendants from putting up any
construction in the suit schedule property. Being
NC: 2023:KHC:29673
MFA No. 2915 of 2023
aggrieved by the same, defendant Nos. 1 and 3 have filed
this appeal.
5. The learned counsel for appellants/defendant
Nos. 1 and 3 has submitted that the suit schedule property
originally belongs to one Krishnappa. After his death, his
wife Gowramma and his son Rajkumar have executed an
agreement of sale in favour of defendant No.1. Since the
property belongs to joint family, defendant No.1 insisted
for signature of all the family members for execution of
the sale deed. Including Gowramma, all the daughters of
Krishnappa have executed the release deed dated
13.11.2019 in favour of Rajkumar. Thereafter Rajkumar
died on 14.01.2023. Since defendant No.2 is the only
legal heir of deceased Rajkumar, she has executed a sale
deed in favour of defendant No.1 and he has been put in
possession. Immediately thereafter, khata has been
changed to the name of defendant No.1. The defendant
No.1 later sold this property in favour of defendant No.3
by sale deed dated 30.03.2023. As on the date of filing
NC: 2023:KHC:29673
MFA No. 2915 of 2023
the suit, khata was in the name of defendant No.1. Now,
defendant No.3, after obtaining necessary licence from the
competent authority has started construction in the suit
schedule property. Even though there is a clear finding by
the trial court that defendant No.3 is in possession of the
property, the trial court has erred in granting an injunction
restraining defendants from putting up any construction.
6. He further contended that the plaintiffs have no
right or title over the suit schedule property. They have
given a release deed in favour of Rajkumar, by which they
have lost their right over the suit schedule property, then
suit itself is not maintainable.
7. He further contended that even Gowramma has no
right over the suit schedule property after the death of her
son since she has given a release deed.
8. He further contended that as on the date of filing
of the suit, defendant Nos. 1 and 3 are in possession of
the property and hence, the impugned order is without
jurisdiction. Hence, he prays for allowing the appeal.
NC: 2023:KHC:29673
MFA No. 2915 of 2023
9. Per contra, learned counsel appearing for the
respondent No.1/plaintiff has contended that the suit
schedule property is a joint family property. They have
executed the release deed in favour of Rajkumar only for
the purpose of obtaining the loan and title has not been
transferred.
10. He further contended that even assuming that
Rajkumar has a right and title over the property, after his
death, his mother Gowramma has a right. When there is a
co-owner to the suit schedule property, one of the co-
owner has right. At no point of time, defendant No.2 was
put into the possession. Therefore, she has no right to
execute the sale deed in favour of defendant No.1 and she
cannot put defendant No.1 into the possession of the suit
schedule property. Since there is no right or title over the
suit schedule property to defendant Nos. 1 and 3, they
cannot be permitted to put up any construction. Since the
plaintiffs have made out a prima facie case, the trial court
NC: 2023:KHC:29673
MFA No. 2915 of 2023
has rightly granted an injunction. Hence, he sought for
dismissal of the appeal.
11. Heard the learned counsel for the parties.
Perused the impugned order.
12. It is not in dispute that Krishnappa is the original
owner of the suit schedule property. The claim of the
defendants is that Gowramma and daughters of
Krishnappa have executed release deed in favour of
Rajkumar. It is their case that after the death of Rajkumar
his wife - defendant No.2 executed a sale deed in favour
of defendant No.1 and he was put into the possession. It
is very clear from the sale deed dated 09.02.2023. There
is also a finding by the trial court that defendant Nos.1
and 3 are in possession of the suit schedule property. It
is also the finding given by the trial court in the impugned
order that defendant Nos. 1 and 3 are in possession of the
property, khata also stands in the name of defendant No.1
at the time of filing of the suit. In view of the above, the
impugned order is unsustainable.
NC: 2023:KHC:29673
MFA No. 2915 of 2023
13. Accordingly, I pass the following order:
(i) The appeal is allowed.
(ii) The order passed by the trial court
dated 20.04.2023 passed on IA No.1/2023 is
modified as, defendant Nos. 1 and 3 are
permitted to put up construction in the suit
schedule property subject to the condition that
they shall file an affidavit before the trial court
that in case they fail in the suit, they shall not
claim any equity and they have to clear all the
construction and hand over the vacant
possession to the plaintiffs and they shall not
create any third party interest till the disposal
of the suit.
(iii) The affidavit has to be filed within
two weeks from the date of receipt of a copy of
this order.
- 10 -
NC: 2023:KHC:29673
MFA No. 2915 of 2023
(iv) The trial court is directed to dispose
of the suit, as expeditiously as possible, not
later than one year from the date of receipt of
the copy of this order.
(v) Both the parties are directed to co-
operate for speedy disposal of the suit.
(vi) The trial court is directed to dispose
of the suit on merits, in accordance with law,
without being influenced by the observations
made in this order.
Sd/-
JUDGE
CM
