Karnataka High Court
Dr Swapna Singh Chauhan @ Dr Swapna Verma vs Sri Ravi Kumar C on 18 April, 2024
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MFA No. 2453 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
MISCELLANEOUS FIRST APPEAL NO. 2453 OF 2024 (CPC)
BETWEEN:
DR. SWAPNA SINGH CHAUHAN @
DR. SWAPNA VERMA
WIFE OF DR. AMIT VERMA
AGED ABOUT 39 YEARS,
PERMANENT ADDRESS AT NO C.K.59/13,
NICHIBAGH, VARANASI,
UTTAR PRADESH-221003
NOW RESIDING AT FLAT NO.904,
TOWER 3, "THE PROMONT TATA HOUSING",
HOSAKEREHALLI, BSK III STAGE,
BENGALURU-560085
...APPELLANT
(BY SRI. VASANTH MADHAVA S., ADVOCATE)
AND:
1. SRI. RAVI KUMAR C
SON OF LATE CHIKKAPPAIAH
Digitally signed
by AGED ABOUT 47 YEARS,
MARKONAHALLI RESIDING AT C/O NAGARAJ
RAMU PRIYA
Location: HIGH
HOUSE NO.1942, 15TH 'A' CROSS,
COURT OF JUDICIAL LAYOUT, GKVK POST,
KARNATAKA
BENGALURU-560065
2. SMT. MANJULA
DAUGHTER OF LATE CHIKKAPPAIAH
W/O SRI. NAGARAJ,
AGED ABOUT 51 YEARS,
RESIDING AT NO.669, 17TH MAIN,
NARAYANANAGAR,
DODDAKALLASANDRA,
KANAKAPURA MAIN ROAD,
BENGALURU-560062.
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MFA No. 2453 of 2024
3. SRI. C. JAGADISHA
SON OF LATE CHIKKAPPAIAH,
AGED ABOUT 45 YEARS,
4. SMT. BHAGYA R
W/O SRI. C. JAGADISH
AGED ABOUT 43 YEARS,
5. KUMARI PARINITHA
D/O SRI. C. JAGADISH
AGED ABOUT 10 YEARS,
6. MASTER YASHIL GOWDA
S/O SRI. C. JAGADISH
AGED ABOUT 7 YEARS,
SERIAL NO.5 AND 6 ARE MINORS
REPRESENTED BY THEIR NATURAL GUARDIAN FATHER
(RESPONDENT NO 2) C. JAGADISH
SERIAL NO.3 TO 6 ARE PERMANENT RESIDENTS AT
NO.67/2, NEAR GOVERNMENT LIBRARY,
ALLASANDRA VILLAGE, GKVK POST,
BENGALURU-560065
PRESENTLY RESIDING AT
NO.1661, 14TH MAIN,
JUDICIAL LAYOUT, GKVK POST,
BENGALURU-560065
...RESPONDENTS
(BY SRI. T.M.CHOWDA REDDY, ADVOCATE FOR CAVEATOR
RESPONDENT NO.1)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 22.02.2024 PASSED ON I.A. NO.II IN
O.S.NO.7930/2023 ON THE FILE OF THE XXXIX ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU CITY (CCH-40),
ALLOWING THE I.A. NO.II FILED UNDER ORDER XXXIX RULES 1
AND 2 READ WITH SECTION 151 OF CPC, 1908.
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MFA No. 2453 of 2024
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The defendant No.6 in O.S.No.7930/2023 on the file of
the XXXIX Additional City Civil and Sessions Judge, Bengaluru
City (henceforth referred to as 'Trial Court') has filed this
appeal challenging an order dated 22.02.2024, in terms of
which, an application (I.A.No.II) filed by the plaintiff was
allowed and the defendant No.6 was restrained from
proceeding with construction work in the plaint schedule item
No.11 property until disposal of the suit.
2. The suit in O.S.No.7930/2023 was filed for partition
and separate possession of the plaintiff's share in the suit
schedule properties. The plaintiff claimed that he and the
defendant Nos.1 to 5 constituted a joint family and were in
possession of ancestral properties having inherited them from
Sri. Chikkappaiah (father of plaintiff and defendant Nos.1 and
2) and also certain other properties which were succeeded by
them after the demise of Smt. Lakshmamma (mother of
plaintiff and defendant Nos.1 and 2). The defendant No.3 is the
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wife and defendant Nos.4 and 5 are the children of defendant
No.2. The plaintiff claimed that he and defendant Nos.1 to 5
were all in joint possession of the suit properties and that the
defendant No.2 had encumbered certain properties belonging
to the family one of which, was item No.11 which was sold in
favour of the defendant No.6. The plaintiff claimed that the
alienation made by the defendant No.2 was not binding upon
the plaintiff and that the plaintiff and defendant Nos.1 and 2
were entitled to a share in all the suit properties.
3. The suit was contested by the defendant No.6, who
inter alia claimed that she had lawfully purchased the suit item
No.11 from the defendant Nos.2 to 5 in terms of a sale deed
dated 22.02.2023. She contended that the lands belonging to
the family of the plaintiff and the defendant Nos.1 and 2 were
notified for acquisition for the benefit of Karnataka State
Judicial Department Employees House Building Co-operative
Society Limited (henceforth referred to as 'Society'). She
contended that the Society had provided one site to each of the
family members amongst which, a site bearing No.1159 was
allotted to the defendant No.2. Similarly, a site bearing
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No.1307 was allotted to the plaintiff and site bearing No.1306
was allotted to the father of the plaintiff Sri. Chikkappaiah. She
contended that a site bearing No.2073/D was allotted to Smt.
Manjula, sister of the plaintiff and site bearing No.1787 was
allotted to Smt. Lakshmamma, mother of the plaintiff. She
contended that out of the properties so allotted, site bearing
Nos.1306 and 1307 were alienated to third parties and the
plaintiff is squatting over the site bearing No.1787, which was
conveyed to Smt. Lakshmamma and was enjoying the rents
without accounting the same. She contended that she had
purchased the suit item No.11 after conducting due diligence
more particularly, in view of the sale deed executed by the
Society in favour of the defendant No.2 and therefore, the said
property was not available for partition.
4. An application (I.A.No.II) was filed by the plaintiff
under Order XXXIX Rules 1 and 2 read with Section 151 of CPC
for interim injunction to restrain the defendant No.6 from
putting up any construction in the suit item No.11. This
application was opposed by the defendant No.6 on similar lines.
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5. The Trial Court after considering the contentions
urged in the application as well as the objections, allowed the
application in terms of the impugned order on the ground that
the question whether the defendant No.6 was a bonafide
purchaser or not, was a matter of trial and the status-quo of
the property pending disposal of the suit had to be maintained.
It also noticed that the construction put up by the defendant
No.6 was still at plinth level and that no hardship would be
caused to her, if she was directed to stop the construction. It
also held that not granting an order of injunction would result
in multiplicity of proceedings and the plaintiff cannot be
compensated in terms of money.
6. Being aggrieved by the said order, the defendant
No.6 has filed this appeal.
7. The learned counsel for the defendant No.6
contends that the Society had purchased the land from Sri.
Subbaiah, father of Smt. Lakshmamma and maternal
grandfather of the plaintiff and defendant Nos.1 and 2. He
contends that the Society had at the desire of Sri. Subbaiah
executed sale deeds conveying the suit item No.11 in favour of
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defendant No.2 and similarly, other sites were conveyed to the
other members of the family. He contends that the plaintiff too
was allotted a site, which he disposed off to a third party in the
year 2002. Likewise, the father of the plaintiff had also
disposed off the site allotted to him to a third party on the
same day. He therefore, contends that the parties had
considered the properties allotted to them as their own
independent properties and dealt with them as if they were
their own independent properties. Similarly, defendant No.2
had executed a sale deed conveying the suit item No.11 to the
defendant No.6. Hence, he contends that the impugned order
passed by the Trial Court is without considering the facts on
record and the conduct of the parties. He also submits that the
construction is now in full swing and the impugned order has
come as a rude shock to the defendant No.6. He therefore,
prays that pending disposal of the suit, the defendant No.6 be
permitted to put up construction and that the defendant No.6
would not seek any equities in the event of the suit being
decreed. Further, he submits that since the defendant No.2
was also entitled to a share in the other suit properties, equities
can be worked out in the final decree proceedings by allotting
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the site purchased by the defendant No.6 to the share of the
defendant No.2.
8. Per contra, the learned counsel for the plaintiff
submits that all the sites that were allotted to the family of the
plaintiff and defendant Nos.1 to 5 were in lieu of the
consideration payable by the Society and therefore, all the sites
had to be construed as belonging to the joint family. He
submits that since there is no partition between the plaintiff
and the defendant Nos.1 and 2, alienation made by the
defendant No.2 in favour of defendant No.6 is not binding upon
the plaintiff and the defendant Nos.1 to 5 and therefore, the
defendant No.6 cannot be permitted to put up construction. He
further contends that the Joint Registrar of Co-operative
Societies by his report dated 11.07.2008 had reported that the
Society had not made any payment for 42 sites that were
conveyed by it. He therefore, submits that whatever lands that
were owned by Sri. Subbaiah, the maternal grandfather of the
plaintiff came into the hands of Smt. Lakshmamma and that
since she died intestate, the same came to the hands of kartha
of the joint family and were treated as properties of the joint
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family and therefore, those properties were liable to be
partitioned.
9. I have considered the submissions made by the
learned counsel for the defendant No.6 as well as the learned
counsel for the plaintiff.
10. It is undisputed that the land where the suit item
No.11 is formed belonged to Sri. Subbaiah, maternal
grandfather of the plaintiff and defendant Nos.1 and 2. It is
also not in dispute that the said Sri. Subbaiah had conveyed
the said land to the Society in the year 1992. The Society
allotted certain sites to the plaintiff, his father, mother, aunt,
brothers and sister. The plaintiff did not dispute that the
parties had dealt with the sites that were allotted by the
Society as if they were their own and absolute properties.
Since it is not disputed that the land where the sites formed
and allotted belonged to Sri. Subbaiah, the said properties
cannot be construed as ancestral properties in the hands of the
plaintiff and defendant Nos.1 to 5. At the most, Smt.
Lakshmamma, mother of the plaintiff and defendant Nos.1 and
2 could be construed as the real owner, while the plaintiff and
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defendant Nos.1 and 2 could be construed as ostensible owners
of the sites allotted in their respective names. Therefore, the
sites allotted to the children of Smt. Lakshmamma have to be
construed as their absolute properties. The plaintiff as well as
the father of the plaintiff also considered the sites allotted to
them as their own absolute properties and consequently,
conveyed it in the year 2002. The defendant No.2 also
conveyed the suit item No.11 to the defendant No.6 in terms of
a sale deed dated 22.02.2023. Therefore, the plaintiff cannot
now contend that the suit item No.11 was also property
belonging to the joint family and that the plaintiff had an
undivided share in the said property. The defendant No.6 has
lawfully purchased the suit item No.11 from the defendant
Nos.2 to 5 after paying the full consideration and has now put
up construction over the suit item No.11. The Trial Court
committed an error in restraining the defendant No.6 from
putting up any construction over the suit item No.11 on the
premise that the question whether the defendant No.6 was a
bonafide purchaser or not, was a matter of trial. In view of the
admitted facts pleaded in the plaint, the property purchased by
the defendant No.6 was certainly not an ancestral property in
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the hands of the plaintiff and defendant Nos.1 to 5 and the
plaintiff could not claim any share in the suit item No.11.
11. Be that as it may, since the defendant No.6 has
commenced construction in the suit item No.11, having regard
to the fact that the defendant No.2 was also a member of the
joint family, in the event of plaintiff being entitled to an
undivided share in the suit properties, the property that is
conveyed to the defendant No.6 can always be adjusted or
allotted to the share of defendant No.2 by working out equity in
the final decree proceedings. Therefore, the impugned order
passed by the Trial Court warrants interference.
12. Hence, this appeal is allowed. The impugned
order dated 22.02.2024 passed by the XXXIX Additional City
Civil and Sessions Judge, Bengaluru City on I.A.No.II in
O.S.No.7930/2023 is set aside. The application (I.A.No.II) filed
by the plaintiff under Order XXXIX Rules 1 and 2 read with
Section 151 of CPC is rejected. It is made clear that any
construction that may be put up by the defendant No.6 is
always subject to the result of the suit.
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13. In view of disposal of the appeal, pending I.As., if
any, do not survive for consideration and the same stand
disposed off. Any observation made herein shall not affect the
disposal of the suit on merits.
Sd/-
JUDGE
PMR
