Karnataka High Court
K L Ashwathareddy vs Smt Chowdamma on 1 August, 2024
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NC: 2024:KHC:30416
MFA No. 8241 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF AUGUST, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
MISCELLANEOUS FIRST APPEAL NO. 8241 OF 2023 (CPC)
BETWEEN:
K L ASHWATHAREDDY
S/O LATE K H LAKSHMIPATHIREDDY
AGED ABOUT 63 YEARS,
RESIDING AT KAMBATTANAHALLI VILLAGE,
MANCHENAHALLI HOBLI,
GOWRIBIDANUR TALUK
CHIKKABALLAPURA DISTRICT - 561 208.
...APPELLANT
(BY SRI. SOMASEKHARA K.H., ADVOCATE)
AND:
1. SMT CHOWDAMMA
W/O LATE K H VENKATAREDDY,
Digitally AGED ABOUT 82 YEARS,
signed by
MEGHA
MOHAN 2. SRI K V HANUMAPPAREDDY
Location: S/O LATE K H VENKTAREDDY,
HIGH COURT AGED ABOUT 65 YEARS,
OF RESIDING AT NO. 168/A,
KARNATAKA
6TH CROSS, 1ST N BLOCK,
RAJAJINAGARA,
BENGALURU 560 010.
3. SRI K V PRABHAKARAREDDY
S/O LATE K H VENKATAREDDY,
AGED ABOUT 60 YEARS,
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MFA No. 8241 of 2023
4. SRI K V SUDHAKARAREDDY
S/O LATE K H VENKATAREDDY
AGED ABOUT 60 YEARS,
5. SMT K V ARUNA
D/O LATE K H VENKATAREDDY
AGED ABOUT 52 YEARS,
6. K.V. LAKSHMIDEVAMMA
W/O LATE LAKSHMIPATHIREDDY
AGED ABOUT 85 YEARS,
7. SMT K L UMA
D/O LATE K H LAKSHMIPATHIREDDY
AGED ABOUT 52 YEARS,
8. SRI B N PRAKASH
SINCE DEAD BY LRS.
(a) SMT SHAILAJA
W/O LATE B N PRAKASHREDDY
AGED ABOUT 60 YEARS,
(b) SRI KARTHIK REDDY
S/O LATE B N PRAKASHREDDY,
AGED ABOUT 31 YEARS,
(c) BHARATH REDDY
S/O LATE B N PRAKASHREDDY
ABOUT 30 YEARS
9. SMT MALLAMMA
W/O LATE K H SHANKARA REDDY
AGED ABOUT 82 YEARS,
RESIDING AT
KAMBATHANAHALLI VILLAGE,
MANCHENAHALLI HOBLI (H),
GOWRIBIDANUR (T)
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MFA No. 8241 of 2023
CHIKKABALLAPURA DISTRICT
10. SRI K S RAJASHEKHARA REDDY
SINCE DEAD BY HIS LRS
(a) SMT NAGAVENI
W/O K S RAJASHEKARA REDDY
AGED ABOUT 51 YEARS,
(b) SMT MONIKA
D/O K S RAJASHEKARA REDDY
AGED ABOUT 30 YEARS,
(c) K R MADUSUDANAREDDY REDDY
S/O K S RAJASHEKARA REDDY
AGED ABOUT 27 YEARS,
10(a) TO (10(c) ARE
RESIDING AT
KAMBATHANAHALLI VILLAGE,
MANCHENAHALLI HOBLI,
GOWRIBIDANUR TALUK
CHIKKABALLAPURA DISTRICT
11. SMT GEETHA
D/O LATE K H SHANKARA REDDY
AGED ABOUT 57 YEARS,
12. SMT MANJULA
D/O LATE K H SHANKARA REDDY
AGED ABOUT 52 YEARS,
13. SMT PADMAVATHI
D/O LATE K H SHANKARA REDY
AGED ABOUT 47 YEARS
14. SMT K S ANITHA
D/O LATE K H SHANKARA REDDY
AGED ABOUT 42 YEARS,
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MFA No. 8241 of 2023
15. SRI B N PRAKASH
SINCE DEAD BY LRS
(a) SMT SHAILAJA
W/O LATE B N PRAKASHREDDY
AGED ABOUT 60 YEARS,
(b) SRI KARTHIK REDDY
S/O LATE B N PRAKASHREDDY
AGED ABOUT 31 YEARS,
(c) BHARATH REDDY
S/O LATE B N PRAKASHREDDDY
AGED ABOUT 30 YEARS,
16. SMT B N VIJAYALAKSHMI
D/O LATE SATHYANARAYANAMMA
AGED ABOUT 55 YEARS,
17. SRI K R VENKATA REDDY
S/O LATE K V VENKATARAMANA REDDY
AGED ABOUT 48 YEARS,
18. SMT KALAVATHI
D/O LATE K V VENKATARAMANA REDDY
AGED ABOUT 49 YEARS,
19. SMT K R LATHA
D/O LATE K V VENKATARAMANAREDDY
AGED ABOUT 48 YEARS,
20. SRI K A SEETHURAMAREDDY
S/O LATE ASHWATHAREDDY
AGED ABOUT 72 YEARS,
RESPONDENTS NO.1, 3 TO 7, 9 TO 14 AND
16 TO 20 ARE RESIDING AT
KAMBATTANAHALLI VILLAGE,
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MFA No. 8241 of 2023
MANCHENAHALLI HOBLI,
GOWRIBIDANUR TALUK
CHIKKABALLAPURA DISTRICT
RESPONDENTS 8(a) TO (c) AND
15(a) TO (c) ARE RESIDING AT
BUDDHIVANTHARAHALLI VILLAGE,
MANCHENAHALLI HOBLI,
GOWRIBIDANURU TALUK
CHIKKABALAPURA DISTRICT.
21. SMT INDIRA S
W/O L DEVARAJU
AGED ABOUT 43 YEARS,
RESIDING AT BOMANAHALLI VILLAGE,
SRIRAMPURA POST, NANDI HOBLI,
CHIKKABALAPURA TALUK
CHIKKABALLAPURA DISTRICT.
...RESPONDENTS
[BY SRI. NARENDRA GOWDA, ADVOCATE FOR R-1,
R-2, R-6, R-7, R-8 (a) TO (c) R-16 TO R-19;
SRI. A.N. GANGADHARAIAH, ADVOCATE FOR C/R-10(c) IN
C.P.NO.15576/2023 & FOR R-9, R-10(a) AND (b), R-11 TO R-14; R-
15(a) TO (c)- SERVED AND UN-REPRESENTED; VIDE ORDER
DT.04.04.2024 - REQUIREMENT OF LRS OF DECEASED R-3 IS
DISPENSED WITH; VIDE ORDER DT.04.04.2024, NOTICE TO R-4 AND
R-5 IS DISPENSED WITH; SRI. J.R. JAGADISH, ADVOCATE FOR R-20
& R-21]
***
THIS MFA IS FILED UNDER SECTION 104 AND ORDER 43 RULE
1(R) OF THE CODE OF CIVIL PROCEDURE, 1908, AGAINST THE
ORDER DATED 14.11.2022 PASSED ON I.A.NO.1 IN OS.NO.113/2021
ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC,
GOWRIBIDANUR, REJECTING I.A.NO.1 FILED UNDER ORDER 39 RULE
1 AND 2 R/W SECTION 151 OF CPC; AND ALLOW THE I.A.NO.1 TILL
DISPOSAL OF THE SAID SUIT, IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS MFA, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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MFA No. 8241 of 2023
CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
ORAL JUDGMENT
Aggrieved by the orders passed by the Senior Civil Judge
and JMFC, Gowribidanur, on I.A.No.I in O.S.No.113/2021,
dated 14.11.2022, the plaintiff is before this Court.
2. Parties are referred to as per their rankings in the
Trial Court.
3. The plaintiff had filed a suit for partition and separate
possession of 1/4th share in his father's 1/4th share over the
suit schedule properties by metes and bounds and also grant a
cost and other such reliefs as deemed fit by the Court under
the facts and circumstances.
4. The suit schedule property runs into 69 items,
consisting of about 200 and odd acres. The case of the plaintiff
is that, the property originally belonged to one Sri. Venkatappa
@ Venkata Reddy, who is the great grand father of the plaintiff.
The said Venkata Reddy had four sons and the first son had
three sons and a daughter. The genealogical tree of
Sri. Venkata Reddy is as follows:
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Genealogical Tree of
Venkatappa
@ Venkata Reddy Died
Wife: Muddumallamma Died
KV Hanumappareddy KV Venkataramanareddy KV Ashwathareddy KV Narayana reddy
Died Died Died Died
W: Ashwathamma W:Ashwathamma (died) W: Muddumallamma W: Lakshmamma
(died) (died) (died) issueless
Ramareddy (died) KA Sethuramareddy(70Y)
W: Susheelamma Wife: Chamundamma
(died) (55Y)
Issueless
1. K.R. Venkateshareddy(48Y)
2. K.R. kalavathi (47y)
3.K.R. Latha(47y)
K.H.
K.H. Venkatareddy K.H. Lakshmipathireddy K.H. Shankareddy Sathyanarayanamma,
Wife: Chowdamma(80Y) (Died) (Died) (died)
W: Lakshmamma(85y) Wife: Mallamma(80Y) H: B.H. Narayana reddy
(Died)
1. K.V. 1. K.L.Ashwattha reddy(62) 1. K.S. Rajshekar
Hanumappareddy(65) 2. K.L. Uma (50y) reddy(60) 1. B.N. Prakash(62Y)
2. Prabakar reddy 3. Nirmal (died) 2. K.S. Geetha (55y) 2. B.N. Vijiyamma
4. B.N. Prakash (62) 3. K.S. Manjula (50Y) (55Y)
(60y)
3.Sudakar reddy(58y)
4.Aruna (50y) 4. K.S.
Padmavathi(45y)
5. K.S. Anitha (40y)
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5. This plaintiff is the great grand son of Sri. Venkata
Reddy, i.e. Sri. Venkata Reddy's first son - Sri.K.V. Hanumappa
Reddy's second son - Sri. K.H. Lakshmipathi Reddy's son is the
plaintiff. It is the case of the plaintiff that, during the lifetime
of his great grand father, the grand father of the plaintiff and
grand fathers of defendants were living in Hindu Undivided
Joint Family and were enjoying the suit schedule properties
jointly. After the death of the great grand father of the
plaintiff, his first son Sri. K.V. Hanumappa Reddy was looking
after the joint family properties as the Kartha and the revenue
entries were transferred in the name of said Hanumappa Reddy
and some of the properties were standing in the names of the
deceased Venkataramana Reddy and Ashwatha Reddy for
revenue purpose. It is his case that after the death of his great
grand father, the other members of the joint family have
inherited the said properties. It is stated that due to the mis-
understanding between the co-parceners of the joint family, in
spite of several requests made by the plaintiff, his request for
partition was not considered. The defendants are totally
neglecting and refusing to share with the plaintiff and taking
advantage of the revenue documents standing in their name
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and they have colluded with each other and without the
knowledge of the plaintiff, they are going to alienate the suit
schedule properties. It is stated that, if they succeed in that,
the interest of the plaintiff would be affected and irreparable
loss would be caused to the plaintiff and accordingly he has
come up with I.A.No.I, seeking a direction to the respondents
not to alienate the suit schedule properties.
6. In the suit, the defendant Nos.9 to 14 had filed their
Written Statement. According to them, the property was
partitioned way back in the year 1956 and the respective share
holders got the properties mutated in their names and were
enjoying the same. According to them, the plaintiff himself had
sold some of the properties that fell to his share, by getting the
revenue records mutated in his favour in the year 1971,
through RRT proceedings. According to them, the partition is
well within the knowledge of the plaintiff. It is their case that
all the family members are enjoying their respective shares as
the same was partitioned in the year 1956 and there is no joint
family status existing as claimed by the plaintiff. It is their case
that, by suppressing all these facts, the plaintiff has come up
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before this Court, seeking the relief and he is not entitled for
injunction as he has suppressed several material facts.
7. By order impugned, the Trial Court had dismissed the
application, i.e.I.A.No.I filed by the plaintiff, seeking injunction,
restraining the defendants from alienating the joint family
properties. The Trial Court has observed that the defendants
No.1, 2, 4 , 6, 16 and 18 are placed ex-parte and defendants
No.3 and 20, 15 (a) to (c) and 9 to 14 have contested the
matter before it. The Trial Court had discussed about the
genealogical tree and about the contention of the contesting
defendants that there was a partition on 10.06.1956. The Trial
Court has also observed that the defendant Nos.3, 17 to 20 and
the plaintiff, along with their family members sold some of their
properties to the third parties, i.e. suit schedule property at
item No.43 and the land in Survey No.133 was purchased by
K.H. Shankara Reddy, i.e. Venkata Reddy's grandson and those
properties were his self-acquired properties. After his death,
his wife and children have been enjoying the said properties.
The Court has also observed that one of the contesting
defendants filed a suit for partition i.e. who is tenth defendant's
son in O.S.No.369/2017, wherein it was clearly admitted that
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the partition took place in between Venkata Reddy's four sons.
The Court has observed that the plaintiff has neither furnished
a single mutation entry nor furnished any document to show
that all the suit schedule properties belonged to Venkata
Reddy, i.e. his great grand father. He has not averred as to
what were the properties standing in the name of Venkata
Reddy, what was the income of the joint family and on what
basis the other properties were purchased. The Court observed
that, on going through the order sheet, the Written Statement
and the orders passed in O.S.No.369/2017, there is a recital
about the earlier partition as contended by the contesting
defendants in the suit. The said fact has not been disclosed by
the plaintiff and the contesting defendants have relied on the
certified copies of the three Sale Deeds deed 11.11.2013 and
06.01.2014 wherein the plaintiff along with his wife and
children had sold some of the suit schedule properties and
there is a recital of mutation No.IHR-2/85-86 in those Sale
Deeds. Basing on this, the Court has observed that, the
plaintiff had the knowledge of mutation entries in the year 1985
itself. He has not stated anything and there is no whisper in the
pleadings. On what basis those entries have been made by the
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revenue authorities has not been explained by the plaintiff.
The Court has further observed that the relief of injunction is
an equitable relief and the person who comes to the Court
should come with clean hands. The Court has come to the
conclusion that there is suppression of facts by the plaintiff. The
Court has considered the other aspect that the plaintiff has
slept over the revenue entries for more than 30 to 35 years
and now he is coming up before the Court stating that the
defendants are illegally trying to alienate the suit schedule
property on the basis of revenue entries. when the nature of
the suit schedule properties are not specifically stated, at this
stage, the Court cannot presume or infer that the joint family
exists, as such, the temporary injunction cannot be granted.
The Court has felt that there is no prima facie case, the balance
of convenience or irreparable loss caused to the plaintiff.
Further what the plaintiff is seeking is the 1/36th share in the
suit schedule properties and for such a small share, no
injunction could be granted for the entire properties and
accordingly, dismissed the I.A.
8. Learned counsel appearing for the appellant/plaintiff
submits that, when it is the case of the plaintiff that the
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property is a joint family property and the members of the joint
family are going to alienate the properties, the Court ought to
have granted an injunction in favour of the plaintiff, restraining
the defendants from alienating the properties. If the
injunction is not granted, it would unnecessarily lead to
multiplicity of proceedings and this particular aspect was not
considered by the Trial Court. With regard to the Sale Deeds
and also whether there was an earlier partition among the
family members or not, all these issues will have to be decided
by the Court during the course of trial and at the threshold in
an injunction application, all these things cannot be gone into.
It is submitted that the Court was referring to a suit of 2017,
and in that, the plaintiff is not a party and if one of the
defendants have filed the suit, the same is not binding on the
plaintiff. It is submitted that the Trial Court initially had
granted an ex-parte interim injunction and thereafter on
contest by the defendants, the same is rejected. It is submitted
that the I.A. was to be allowed.
9. Learned counsel appearing for the defendants No.9 to
14 and defendant No.20 have argued in the similar lines. It is
submitted that there was an earlier partition in the year 1956
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and basing on that, the revenue entries were made in the year
1971 and thereafter they have been enjoying their respective
shares. It is their case that, in fact the plaintiff had sold some
of his properties and that particular aspect was not brought to
the notice of the Court. However, they have filed the
registered extracts of those Sale Deeds in the Trial Court.
Considering all that, the Court has come to a right conclusion
and felt that the plaintiff had not disclosed all the material facts
before the Court and he is not entitled for the equitable relief of
injunction. It is the contention of the defendants that the
plaintiff had leased out some of the properties which are shown
as the joint family properties which fell to his share as per the
earlier partition, has even let them out on lease basis and is
also receiving huge amounts of rent on a monthly basis. It is
submitted that suppressing all these facts, the plaintiff had
approached the Trial Court and the Trial Court had rightly
rejected the application and there are no grounds to interfere
with the well considered order passed by the Trial Court.
10. Having heard the learned counsel on either side,
perused the material on record. The plaintiff had filed the suit
for injunction i.e. in respect of 69 properties, measuring an
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extent of 200 and odd acres. The age of the plaintiff himself
was 62 years, at the time of filing the present suit. According
to him, the entire property belongs to his great grand father
and right from the period of his great grand father, till now,
there was never a partition and that they have been enjoying
the properties in the status as members of the Hindu Un-
divided Joint Family. It is his case that, now, when he asked
for the partition, the defendants have refused, as such, he has
come up with the present suit for partition, seeking 1/36th
share in the entire joint family property and it is his
apprehension that the defendants are selling away the
properties.
11. This Court has perused the plaint. The cause title of
the plaint itself runs into four pages and the plaint schedule
runs into nearly sixteen(16) pages, consisting of the details of
the suit schedule properties. As rightly observed by the Trial
Court, when there are so many joint family properties, except
stating that they are the joint family properties and they are
not partitioned, the plaintiff has not mentioned about what are
the revenue entries, in whose names they are mutated, if it is
mutated, what are the steps he has taken. None of the details
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have been disclosed by the plaintiff in his plaint. When the
defendants have entered appearance, they have stated about
some of the Sale Deeds executed by the plaintiff. When an
application for injunction is filed, which is an equitable relief,
the party has to come before the Court with all the relevant
facts and there should not be any suppression of facts. If it is
the case of the plaintiff that, the suit schedule properties are
the joint family properties, then without the partition, a
member of the joint family will not get any right to execute the
Sale Deeds. If such a Sale Deed was executed, then why it was
executed, how it was executed, nothing has been stated by the
plaintiff. It has come to light only after the defendants have
filed their Written Statement. As rightly observed by the Trial
Court, the plaintiff is seeking 1/36th share in the properties.
Considering the fact that the plaintiff himself who is aged more
than 60 years and is the great grandson of Sri. Venkata Reddy,
whose property is inherited by the plaintiff and the defendants,
has not disclosed anything about all these properties. While
granting injunction, the Court has to look at the prima facie
case, balance of convenience and irreparable loss that may be
caused to the parties. In the event he is successful in the suit,
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a small part of the land, part and parcel of which he is entitled,
for that small extent, there cannot be any stay of alienation for
the entire extent of 200 and odd acres, particularly, in the facts
and circumstances of the case, where the defendants plead that
there was a prior partition and also when they are relying on
some of the Sale Deeds said to have been executed by the
plaintiff. In that view of the matter and in the event if the
Court comes to the conclusion that the plaintiff is entitled for
partition, if any of the properties are sold, then, it is hit by lis
pendens. The Trial Court has rightly dealt with the application
and this Court finds no reason to interfere with the impugned
order of the Trial Court.
12. The defendants who are placed ex-parte before the
Trial Court, the learned counsel appearing for them before this
Court submits that, he is supporting the case of the plaintiff
that no partition had taken place.
Accordingly, this Court is passing the following:
ORDER
1) The appeal is dismissed;
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2) Any of the observations made in this order are
only for the limited purpose of disposing of this appeal.
The observations made shall not be considered as the
expression of this Court and the Trial Court shall decide
the suit independently, on the merits of the case.
3) All pending I.As., if any, in the appeal, shall
stand closed.
SD/-
(LALITHA KANNEGANTI)
JUDGE
BMV*
