Karnataka High Court
M/S Casa Grand Garden City ... vs Smt K S Prema Reddy on 2 January, 2023
Bench: Ravi V Hosmani
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 02ND DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE RAVI V. HOSMANI
MISCELLANEOUS FIRST APPEAL NO.6491 OF 2022 (CPC)
BETWEEN:
M/s. CASA GRAND GARDEN CITY BUILDERS PVT LTD.,
A COMPANY INCORPORATED UNDER THE
COMPANIES ACT 1956, HAVING ITS REGISTERED
OFFICE AT SALMA BIZHOUSE, NO. 34/1, 3RD FLOOR,
T -1 & T2 MEANEE, AVENUE ROAD, ULSOOR ROAD,
NEAR ULSOOR LAKE, BENGALURU - 560 042.
REP. BY ITS MANAGING DIRECTOR.
...APPELLANT
[BY SRI. DHYAN CHINNAPPA, SR. COUNSEL FOR
SRI. PRASHANTH V.G., ADVOCATE ]
AND:
1. SMT. K.S. PREMA REDDY,
W/O SRI. GURUMURTHY REDDY,
D/O LATE SRI. K.B. SIDDAPPA REDDY,
AGED ABOUT 66 YEARS,
R/A No.3, 8TH CROSS, VICTORIA LAYOUT,
BANGALORE- 560 047.
REP. BY HER DULY CONSTITUTED ATTORNEY
SRI. T.L. NARASIMHA MURTHY.
2. SMT. PRAMILA,
W/O SRI. NARASIMHA MURHTY,
D/O LATE SRI. K.B. SIDDAPPA REDDY,
AGED ABOUT 72 YEARS,
R/A NO.217, SLN COMPLEX,
1ST FLOOR, 4TH MAIN, 3RD CROSS,
NEXT TO MAYURI NIVAS,
CHAMARAJPET, BANGALORE - 560 018.
2
3. SMT. SUSHEELA REDDY,
W/O SRI. GURUMURTHY REDDY,
D/O LATE SRI. K.B. SIDDAPPA REDDY,
AGED ABOUT 68 YEARS,
R/A NO. 3, 8TH CROSS, VICTORIA LAYOUT,
BANGALORE - 560 047.
REP BY HER DULY CONSTITUTED ATTORNEY
SRI. T.L. NARASIMHA MURTHY.
4. SMT USHA,
W/O SRI. K.N. SRINIVASA REDDY,
D/O LATE SRI. K.B. MUNIREDDY,
AGED ABOUT 59 YEARS.
5. SMT. SHANTHA,
W/O SRI JANARDHANA REDDY,
D/O LATE SRI. K.B. MUNIREDDY,
AGED ABOUT 52 YEARS,
6. SRI HARISH,
S/O LATE SRI. K.B. MUNIREDDY,
AGED ABOUT 49 YEARS,
7. Ms. JEEVITHA,
D/O SRI HARISH,
AGED ABOUT 29 YEARS,
8. Ms. SUSHMITHA,
D/O SRI. HARISH,
AGED ABOUT 24 YEARS,
RESPONDENTS NO.4 OT 8 ARE
R/A NO. 52, BALAPPA REDDY ROAD,
K.R. PURAM, BANGALORE - 560 036.
9. SMT KALABHASINI REDDY,
W/O LATE SRI K S PRABHAKAR REDDY,
AGED ABOUT 74 YEARS,
R/A No. 2, SHIVASHANKARI LAYOUT,
2ND STAGE, 2ND MAIN, 29TH CROSS,
3
MARUTHI NAGAR, YELAHANKA,
BANGALORE - 560 084.
10 . SRI. VISHAL PRABHAKAR,
S/O LATE SRI. K.S. PRABHAKAR REDDY,
AGED ABOUT 36 YEARS,
R/A NO. 2, SHIVASHANKARI LAYOUT,
2ND STAGE, 2ND MAIN, 29TH CROSS,
MARUTHI NAGAR, YELAHANKA,
BANGALORE - 560 084.
11 . SRI VIJAY PRABHAKAR,
S/O LATE SRI K.S. PRABHAKAR REDDY,
AGED ABOUT 39 YEARS,
R/A NO.1227, S. DORCY LANE,
201 TEMPLE - 85281 A Z.,
UNITED STATES OF AMERICA.
12 . SRI K.S. BABU REDDY,
S/O LATE SRI.SIDDAPPA REDDY,
AGED ABOUT 70 YEARS,
13 . SMT SMITHA B.,
D/O SRI K.S. BABU REDDY,
AGED ABOUT 42 YEARS,
14 . SRI SANDEEP REDDY B.,
S/O SRI K.S. BABU REDDY,
AGED ABOUT 40 YEARS,
RESPONDENTS NO.12 TO 14 ARE
R/A NO. 9TH MAIN, 1ST BLOCK,
H.R.B.R. LAYOUT, BANGALORE - 560 043.
15 . SMT K.S. MANJULA,
W/O SRI NARASIMHA REDDY,
AGED ABOUT 62 YEARS,
D/O LATE SRI. SIDDA REDDY @ SIDDAPPA REDDY
AGED ABOUT 62 YEARS, NO 546 8TH BLOCK,
KORAMANGALA, 1ST MAIN, 1ST CROSS,
BANGALORE - 560 095.
4
16 . SRI H.N. RAM REDDY @ RAM REDDY H.N.,
S/O LATE SRI. NAGAPPA REDDY,
AGED ABOUT 68 YEARS, R/A HARALURU VILLAGE,
AGARA POST, BANGALORE - 560 034.
17 . SRI. ADINATHA JAIN CHARITABLE SOCIAL AND
EDUCATIONAL TRUST, (A MINORITY TRUST)
HAVING ITS REGISTERED OFFICE
AT NO. 476, BASAVANAPURA MAIN ROAD,
KRISHNARAJAPURA, BANGALORE- 560 036,
REP. BY ITS PRESIDENT SRI H.A.PADMARAJ.
18 . M/s. VISTRA ITCL INDIA LTD.,
A COMPANY INCORPORATED UNDER THE
COMPANIES ACT 1956, HAVING ITS REGISTERED OFFICE
AT IL AND FS FINANCIAL CENTRE, PLOT NO C - 22,
G- BLOCK, BANDRA - KURLA BANDRA EAST,
MUMBAI - 400 051. REP. BY ITS SECURITY TRUSTEE.
...RESPONDENTS
[BY SRI. NARASIMHA PRASAD S.D., & SRI. M.N. UMESH, ADVS.,
FOR R1 & R3; SRI. P.SUBRAMANYA BHAT, ADV., FOR R2;
SRI. A.MADHUSUDHANA RAO, ADVOCATE FOR R15;
NOTICE TO OTHER RESPONDENTS DISPENSED WITH V/O
DATED 09.11.2022 ]
THIS MISCELLANEOUS FIRST APPEAL FILED UNDER ORDER 43
RULE 1(r) R/W SECTION 151 OF CPC., AGAINST THE ORDER DATED
08.08.2022 PASSED ON I.A.NOs.1, 3 AND 4 IN O.S.NO.3971/2022 ON
THE FILE OF THE 17TH ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU, ALLOWING THE I.A.NO.1 AND 3 AND DISMISSING THE
I.A.NO.4 FILED UNDER ORDER 39 RULE 1 AND 2 R/W SECTION 151 OF
CPC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 09.11.2022, THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING AT DHARWAD BENCH THROUGH VIDEO CONFERENCE:
5
JUDGMENT
Challenging impugned order dated 08.08.2022 passed by
XVII Addl. City Civil & Sessions Judge, Bengaluru (CCH-16), in
O.S.No.3971/2022 on I.As.no.1, 3 and 4, this appeal is filed.
2. Appellant herein was defendant no.14, while
respondents no.1 to 3 herein were plaintiffs, respondents no.4 to
16 herein were defendants no.1 to 13; and respondents no.17 and
18 were defendants no.15 and 16 in original suit. They are referred
to as such in this order.
3. O.S.No.3971/2022 was filed for partition and separate
possession of 1/12th share of each plaintiffs in schedule 'A' and 'B'
properties; for declaration that registered sale deed dated
19.06.2010 executed by K.B.Munireddy and others to
H.N.Ramreddy; sale deed dated 27.08.2013 executed by
Kalabhasini Reddy and others to H.N.Ramreddy; sale deed dated
20.07.2021 executed by H.N.Ramreddy to M/s. Casa Grande
Garden City Builders Pvt. Ltd.; sale deed dated 24.06.2015
executed by H.N.Ramreddy to Sri Adinatha Jain Charitable Social
and Educational Trust; registered mortgage deed dated 18.05.2022
executed by M/s. Casa Grande Garden City Builders Pvt. Ltd., to
M/s. Vistra ITCL (India) Ltd., for mesne profits etc. Land bearing
Sy.no.61, situated at K.R.Puram village, K.R.Puram Hobli,
Bangalore East Taluk, measuring 03 acres 11 guntas was schedule
'A' property, while land measuring 02 acres 20 guntas in
Sy.no.20/1 of Chowdenahalli village, K.R.Puram Taluk was 'B'
schedule property (referred to as 'suit 'A' and 'B' properties' for
short).
4. In said suit, plaintiffs filed I.A.no.1 under Order XXXIX
Rule 1 and 2 of CPC, to restrain defendants no.14 and 15 from
alienating, transferring etc., suit property or any portion thereof
during pendency of suit. They also filed I.A.no.3 against defendants
to restrain them from constructing any building in suit 'A' and 'B'
properties.
5. It was stated that on 29.06.2022, trial Court had
granted ad-interim injunction. Thereafter, defendants no.14 and 15
entered appearance and filed written statement and objections.
They also filed I.A.no.4 under Order XXXIX Rule 4 of CPC, to vacate
ad-interim order.
6. On consideration, trial Court passed impugned order
whereunder, it allowed I.As.no.1 and 3 filed by plaintiffs and
dismissed I.A.no.4 filed by defendants. Aggrieved by said order,
defendant no.14 is in appeal.
7. Sri. Dhyan Chinnappa, learned Senior counsel
appearing for Sri.Prashanth V.G., Advocate for appellant -
defendant no.14 submitted that impugned orders passed by trial
Court was contrary to law and unsustainable. At outset, it was
submitted very fact that plaintiffs were seeking temporary
injunction only against defendant no.14 selectively would indicate
that suit was collusive in nature and application was not bonafide.
However, trial Court failed to appreciate same.
8. It was submitted that one Patel Balappa Reddy was
original propositus. Suit schedule 'B' property fell to his share in
partition between himself and his brother on 01.02.1961. Apart
from said land, he was tenant of land bearing Sy.no.61/2 of
K.R.Puram. But since he died after filing Form no.7, occupancy right
was granted jointly in name of his two sons - Sidda Reddy and Muni
Reddy. Thereafter, Sidda Reddy died in year 2002. He had four
daughters and two sons namely, Prema Reddy, Prabhakar Reddy,
Pramila Reddy, Babu Reddy, Susheela Reddy and Manjula. Among
them Prabhakar Reddy died survived by his wife Kalabhasini and
children Vishal and Vijay. Further, Muni Reddy was survived by his
children Smt. Usha, Smt.Shantha, Sri. Harisha and Smt. Susmitha
and Smt. Jeevitha children of Sri. Harisha.
9. It was submitted that Prema Reddy, joined by Pramila
Reddy and Susheela Reddy i.e. three daughters of Sidda Reddy,
filed O.S.no.3971/2022 for partition of their share in suit properties.
Suit was filed against Usha (defendant no.1), Shantha (defendant
no.2), Harish (defendant no.3), Jeevitha (defendant no.4),
Susmitha (defendant no.5); Kalabhasini (defendant no.6), Vishal
(defendant no.7), Vijay (defendant no.8); Babu Reddy (defendant
no.9), his children Smitha (defendant no.10) and Sandeep
(defendant no.11); Manjula (defendant no.12) and purchasers
H.N.Ramreddy (defendant no.13), M/s. Casa Grande Garden City
Builders Pvt. Ltd., (defendant no.14), Sri Adinatha Jain Charitable
Social and Educational Trust (defendant no.15) and M/s. Vistra ITCL
India Ltd. (defendant no.16).
10. It was submitted that after death of Sidda Reddy, there
was oral partition of 'A' schedule property between legal heirs of
Sri. Sidda Reddy and Sri.Muni Reddy, wherein Sri. Muni Reddy was
allotted northern half, while southern half fell to branch of Sri.
Sidda Reddy. Thereafter, under sale deed dated 19.06.2010, Sri.
H.N.Ramreddy purchased northern portion in schedule 'A' property
from legal heirs of Muni Reddy under sale deed dated 19.06.2010.
On 03.05.2011, it was got converted for residential use.
11. In meanwhile, on 12.02.2012 legal heirs of Sri. Sidda
Reddy questioning continuation of name of Sri.Muni Reddy in
respect of portion of land in their possession by filing appeal under
Section 136(2) of Karnataka Land Revenue Act, 1964. On
05.08.2013, they also got converted their portion of land for
residential use. They transferred 03 guntas out of said land to
H.N.Ramreddy. Thereafter, on 24.06.2015, H.N.Ramreddy sold it to
defendant no.15 - Trust. It was submitted that by challenging
revenue entries before Assistant Commissioner, legal heirs of Sidda
Reddy had acquiesced to fact that there was oral partition between
Sri. Sidda Reddy and Sri. Muni Reddy. Taking same into account,
defendant no.14 purchased northern portion of schedule 'A'
property from Sri. H.N.Ramreddy under registered sale deed dated
20.07.2021.
12. Thereafter defendant no.14 had entered into agreement
of sale in respect of southern portion of schedule 'A' property with
Smt.Kalabhashini and others on 12.03.2021. But said agreement of
sale was cancelled 20.07.2021. To wreck vengeance against
defendant no.14 for cancellation, O.S.no.3971/2022 was filed for
partition. On 29.06.2022, trial Court granted ex-parte ad-interim
injunction on I.As.no.1 and 3 restraining defendants from
constructing any building on suit 'A' and 'B' properties. Immediately
after entering appearance, defendant no.14 filed I.A.no.4 for
vacation of interim injunction and also filed detailed written
statement opposing suit.
13. Without proper consideration, trial Court allowed
I.As.no.1 and 3 and dismissed I.A.no.4. It was submitted that
Hon'ble Supreme Court in case of Anar Devi and Ors. v/s
Parmeshwari Devi and Ors.1, had held that upon death of a
(2006) 8 SCC 656
coparcener, there would be deemed partition in respect of his
share. In instant case also, there was such deemed partition,
wherein northern portion of schedule 'A' property fell to share of
Sri. Muni Reddy, which would be his absolute property. Therefore,
acquisition of same by defendant no.14, through Sri. H.N.
Ramreddy was in accordance with law and plaintiffs could not claim
any share in respect of said property. Moreover, fact that legal heirs
of Sri. Sidda Reddy had questioned revenue entries standing in
name of Sri. Muni Reddy in respect of southern portion of schedule
'A' property, would establish their acquiescence.
14. Learned Senior Counsel submitted that impugned order
passed by trial Court was wholly unsustainable. It was contended
that though plaintiff had stated that cause of action for suit arose
on execution of sale deed dated 19.06.2010, but suit filed in year
2022, was time barred, therefore, impugned order of temporary
injunction was wholly unsustainable. It was submitted that very
manner of filing application and seeking injunction selectively
against few defendants was indicative of fact that suit was collusive
in nature and not bonafide. On above grounds, learned Senior
Counsel sought for allowing appeal and setting aside of impugned
order.
15. On other hand, learned counsel Sriyuths Narasimha
Prasad S.D and M.N.Umesh for respondents no.1 and 3 and
P.Subramanya Bhat for respondent no.2 supported impugned order.
It was submitted that under sale deed dated 19.06.2010, Sri.
H.N.Ramreddy purchased northern portion of schedule 'A' property
from legal representatives of Sri.Muni Reddy through GPA.
Thereafter on 27.08.2013, deed of confirmation was got executed
from Smt.Kalabhasini wife of late Prabhakar on behalf of herself
and as assignee of her two sons - Sri.Vishal Prabhakar and Sri.Vijay
Prabhakar, Sri.Babu Reddy along with his children Sri.Sandeep and
Smt. Smitha.
16. It was submitted that in neither of these documents,
there was mention of any prior partition between Sri.Sidda Reddy
and Sri.Muni Reddy. When defendant no.14 purchased northern
portion of schedule 'A' property under sale deed dated 20.07.2021
from Sri.H.N. Ramreddy, for first time, there was mention of oral
partition between legal heirs of Sri.Sidda Reddy and Sri.Muni
Reddy, wherein northern portion was claimed to have been allotted
in favour of Muni Reddy. But, there was no explanation for
obtaining deed of confirmation from legal heirs of Sidda Reddy.
17. It was further submitted that defendant no.14 had also
entered into registered agreement of sale with Sri. H.N. Ramreddy
in respect of southern portion of schedule 'A' property on
12.03.2021. In said agreement of sale, Clause 3 (c) specifically
mandated seller to obtain confirmation deeds from female heirs of
Sri. Sidda Reddy. Said agreement of sale was ultimately got
cancelled on 20.07.2021 for failure to comply with condition.
18. Therefore, there was failure to substantiate prior
partition. Hence, it was prima facie observed that suit properties
were Undivided Hindu Joint Family properties. And as defendant
no.14 was seeking to change nature of suit properties by
construction of apartment complex, plaintiffs filed I.A.no.1 for
temporary injunction against defendants no.14 and 15 restraining
them from alienating etc., of schedule 'A' property and I.A.no.3, to
restrain all defendants etc., from putting up any construction in suit
schedule 'A' and 'B' properties during pendency of suit.
19. Relying upon Division Bench decision of this Court in
case of S.K.Lakshminarasappa since dead by LRs vs.
Sri.B.Rudraiah and Ors.2, it was submitted that there was no
period of limitation for filing suit for partition even if some or
portion of joint family properties were alienated to third parties. It
was submitted that no coparcener was entitled to sell his share in
Undivided Joint Family properties and even in case of sale, alienee
would step into shoes of co-sharer in view of Section 44 of Transfer
of Property Act (for short 'TP Act' ) and alienee could, at best, seek
for partition. Alienee could not set up plea of adverse possession
without specific plea of ouster and adverse possession. He could
however, seek for allotment of land sold in his favour towards share
of his seller at time of drawing final decree.
20. Insofar as allegation of prayer being not bonafide, it
was submitted that since defendants no.14 and 15 were only
purchasers, were likely to further alienate suit schedule properties,
injunction against alienation was sought only against them, while
injunction against changing nature and putting up of construction
was sought against all defendants and therefore, there was no
ILR 2012 KAR 4129
substance in such contention. It was further submitted that
plaintiffs had approached Court and sought temporary injunction at
initial stage, when construction had not yet begun, balance of
convenience and irreparable loss and injury would lean in favour of
plaintiffs. It was further submitted that defendants no.14 and 15
having purchased portion of joint family properties with open eyes,
were estopped from pleading or claiming equity.
21. From above submissions, only point that arises for
consideration is:
"Whether impugned order passed by trial Court
on I.As.no.1, 3 and 4 calls for interference?"
22. On examination of rival contentions as above, it is seen
that thrust of appellant's challenge depends upon claim that about
partition between Sri.Sidda Reddy and Sri. Muni Reddy. Said
contention is sought to be substantiated by relying upon
observations in Anar Devi's case (supra). On perusal of said
decision, it is seen that Hon'ble Supreme Court referred to theory of
notional partition, while considering suit for partition by legal heirs
of coparcener. Said observations are not authority for proposition
that upon death of coparcener, there is automatic and deemed
partition.
23. Moreover, fact that deed of confirmation was got
executed on 27.08.2013 from legal heirs of Sri.Sidda Reddy would
prima facie indicate that there was no prior partition between Sri.
Sidda Reddy and Sri. Muni Reddy. Even absence of any reference in
sale deed dated 19.06.2010, under which Sri. H.N.Ramreddy
purchased northern portion of schedule 'A' property and also in
confirmation deed, lends support to such conclusion.
24. Insofar as contention regarding suit being barred by
limitation, it is seen that admittedly relief sought in plaint is for
partition of joint family property. It is settled law that no period of
limitation is prescribed for same. Further, Division Bench of this
Court in case of S.K.Lakshminarasappa's case (supra) has
clarified that even in case of alienation of portion of joint family
property, limitation would not begin to run unless alienee set up
plea of ouster and adverse possession.
25. On perusal of impugned order, it is seen that trial Court
had framed following points for consideration:
"1. ªÁ¢AiÀÄgÀÄ, zÁªÁ C£ÀĸÀÆavÀ D¹ÛAiÀÄÄ vÀ£Àß ¥ÀgÀªÁV
ªÉÄà ÉÆßÃlPÉÌ EgÀÄvÀÛzÉ JAzÀÄ gÀÄdĪÁvÀÄ ¥Àr¸ÀĪÀgÉÃ?
2. C£ÀÄPÀÆ®PÀgÀ M®ªÀÅ ªÁ¢AiÀÄgÀ ¥ÀgÀªÁV EgÀÄvÀÛzÉ JAzÀÄ
ªÁ¢AiÀÄgÀÄ gÀÄdĪÁvÀÄ ¥Àr¸ÀĪÀgÉÃ?
3. vÀÄA§ ÁgÀzÀ £ÀµÀÖ AiÀiÁjUÉ GAmÁUÀÄvÀÛzÉ?
4. ¥ÀæwªÁ¢ ¥ÀgÀ ªÀQîgÀÄ ¸À°è¹zÀ ªÀÄzsÀåAvÀgÀ Cfð 4 ¢ªÁtÂ
¥ÀæQæAiÀiÁ ¸ÀA»vÉ DeÉë PÀ®A 39 ¤AiÀĪÀÄ 4gÀ ¸ÀºÀ PÀ®A 151 gÀ
CfðAiÀÄ£ÀÄß ¥ÀÄgÀ¸ÀÌj¸À§ºÀÄzÉÃ?
5. AiÀiÁªÀ DzÉñÀ?"
26. After consideration of material available, trial Court
arrived at respective conclusion and proceeded to pass impugned
order. Hon'ble Supreme Court in case of Mohd. Mehtab Khan v/s
Khushnuma Ibrahim Khan and Ors.3, it has held that unless
order passed by trial Court suffers from palpable error or is
untenable, there cannot be any interference in first appeal. It is
further held that even if view taken by trial Court was a possible
view, same was not liable for interference.
27. None of contentions urged establish case for
interference. Thus, points for consideration is answered in negative.
(2013) 9 SCC 221
28. In result, I pass following:
ORDER
Appeal is dismissed.
Sd/-
JUDGE
GRD
