Karnataka High Court
Sri. B.M Balakumar vs Sri. B.M Arun Kumar on 5 August, 2024
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MFA No. 6181 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
MISCELLANEOUS FIRST APPEAL NO. 6181 OF 2022 (CPC)
BETWEEN:
SRI. B.M BALAKUMAR,
AGED ABOUT 55 YEARS,
S/O SRI. B.M MUNISWAMY REDDY,
RESIDING AT BYRATHI VILLAGE,
KOTHNUR POST,
BIDARAHALLI HOBLI,
BENGALURU EAST TALUK,
BENGALURU 560 077
...APPELLANT
(BY SRI. C. SHANKAR REDDY, ADVOCATE)
AND:
1. SRI. B.M ARUN KUMAR,
AGED ABOUT 46 YEARS,
S/O SRI. B.M. MUNISWAMY REDDY,
Digitally RESIDING AT BYRATHI VILLAGE,
signed by
MEGHA KOTHNUR POST, BIDARAHALLI HOBLI,
MOHAN BENGALURU EAST TALUK,
Location: BENGALURU 560 077
HIGH COURT
OF
KARNATAKA 2. SRI. K. ANANTHAPPA,
AGED ABOUT 60 YEARS,
S/O LATE SRI. KANAKAPPA,
RESIDING AT BYRATHI VILLAGE,
KOTHNUR POST, BIDARAHALLI HOBLI,
BENGALURU EAST TALUK,
BENGALURU 560 077
...RESPONDENTS
(R-1 AND R-2 - SERVED AND UNREPRESENTED)
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MFA No. 6181 of 2022
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF THE CODE
OF CIVIL PROCEDURE, 1908, AGAINST THE ORDER DATED
23.09.2020 PASSED ON I.A.NO.X IN O.S.NO.977/2009 ON THE FILE
OF THE IV ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU RURAL
DISTRICT, BENGALURU, REJECTING I.A. NO.X FILED UNDER ORDER
XXXIX RULES 1 AND 2 OF CPC. AND ETC.
THIS MFA, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
ORAL JUDGMENT
Aggrieved by the orders passed by the IV Additional
Senior Civil Judge, Bengaluru Rural District, Bengaluru, dated
23.09.2020, on I.A.No.X in O.S.No.977/2009, the second
plaintiff is before this Court. The first plaintiff died during the
pendency of the suit and his Legal Representatives are already
on record.
2. The Original Suit is filed seeking partition and
allotment of 1/3rd legitimate share in the suit schedule property
and to declare that the alleged General Power of Attorney(GPA)
dated 20.02.1992 is not binding on the plaintiffs and the said
GPA has to be cancelled. It is the case of the plaintiffs that the
first defendant who is the father of the plaintiffs and defendant
No.2 is the Kartha of the joint family, consisting of the plaintiffs
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and the defendants No.1 and 2. The plaintiffs and the second
defendant are the sons of the first defendant. The plaintiffs and
the defendants No.1 and 2 are the members of the Hindu
undivided Joint Family. The property bearing Survey No.31/2,
measuring an extent of 1.26 guntas, situate at Byrathi village,
which is described in the Schedule is the ancestral property of
the plaintiffs and the defendants. The same was acquired
through a family panchayathi Partition Deed dated 13.06.1968.
It is the case of the plaintiffs that the 3rd defendant along with
his henchmen came near the schedule property on 10.07.2008
at 10:30 a.m. in the morning and tried to trespass illegally into
the suit schedule property and tried to dispossess the plaintiffs
and they could resist the same with the help of the neighbours.
At that time, they came to know that, the defendant No.3 had
acquired the schedule property through a General Power of
Attorney. The Power of Attorney is executed by the first
defendant and his father who is the grand father of the
plaintiffs and the defendant No.2 in favour of the 3rd defendant.
They made it clear to the third defendant that the suit property
is the ancestral joint family property and that they have no
independent right to give GPA nor to alienate the schedule
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property. Thereafter, he had obtained the GPA and they filed
the present suit seeking partition and also a declaration that
the said GPA is not binding on them.
3. The suit is filed in the year 2009 and the present
I.A.No.X came to be filed in the year 2018. In the said I.A., the
plaintiffs are seeking the relief of granting an order of
temporary injunction, restraining the third defendant, his
agents, relatives, heirs, supporters or any one through him
from interfering with the plaintiffs' peaceful possession and
enjoyment of the application schedule property, i.e. item No.1,
in any manner, including that of trespassing, dispossession,
changing the identity, conditions and nature of the suit
schedule property item No.1, till the disposal of the suit. In
support of that, an affidavit is filed, in that, it is stated that the
property is now coming within the limits of the Bruhat
Bengaluru Mahanagara Palike (BBMP) and it is no longer
feasible to carry out agricultural operations but as and when
there is rainfall, they have been carrying out agricultural
operation and raising crops therein. The revenue records are
standing in the name of the elder brother for and on behalf of
the joint family. According to them, the third defendant is
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making attempts to dispossess and raise un-authorised
structures which made them to file this application seeking
injunction. As the plaintiffs are entitled for a share in the suit
schedule property and in the meanwhile, if the defendant No.3
were to interfere with the possession or create any third party
rights, they would be subjected to further litigation and also
multiplicity of proceedings. Basing on that, they sought for an
injunction. The defendants have filed their objections. In the
objections, they have categorically stated that, when an
injunction is sought they have to make out a prima facie case,
balance of convenience and irreparable loss. According to
them, the suit schedule property is the self-acquired property
of the father of the defendant No.1, i.e. the grand father of the
plaintiffs and he had purchased the said property out of his own
earnings. The first defendant and his father, in order to
purchase alternative properties and to discharge the family
debt, have formed a private Layout in the suit schedule
property and bifurcated sites of various dimensions and the
defendant No.3 is appointed by them as a lawful attorney since
they were busy with their day-to-day activities. The said GPA
has been effected on 20.02.1992 and has been registered in
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the Office of the Sub-Registrar, Krishnarajapuram. It is their
case that the burden lies on the plaintiffs to prove that there is
illegal trespass and the plaintiffs had complete knowledge
about the GPA. It is further stated that unless and until it is
shown that they are in possession of the property, question of
granting injunction will not arise. It is their case that they have
already sold the properties to the purchasers and the defendant
No.1 and his father have, in fact, received consideration and all
the Sale Deeds have been executed about 28 years ago and the
purchasers have been in peaceful possession and enjoyment of
the properties and sought for dismissal of the petition.
4. The Trial Court, by order impugned had dismissed the
application. While dismissing the application, the Court has
observed that, on perusing the Court records, the stage was for
cross-examination of PW-1 and when the instant application
was filed through photographs, it can be seen that there are no
agricultural activities as sites can be seen. The Khata extract
and Encumbrance Certificate (EC) shows that it still stands in
the name of the purchasers who have not been made as parties
to the suit. The defendant No.3 produced the EC showing that
the suit properties are no longer agricultural properties and
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sites have already been formed. The Court has also observed
that the RTC extracts are standing in the name of the plaintiffs'
father. The Court also observed that, if the plaintiffs succeed in
the suit, certainly, they can claim for constructed building, if
any, which will be fallen to their share at the time of final
decree proceedings. The defendant No.3 should not seek
equity, in case he suffers a decree. All these aspects are not
possible to decide in this I.A. It requires a full- fledged trial and
accordingly, the plaintiffs are not entitled for injunction. The
Court has also observed that, if temporary injunction is
granted, the purchasers of the properties will be put to
hardship. Many of the purchasers have constructed residential
buildings and the plaintiffs have failed to impead them. If an
injunction is granted, the third parties will be put to irreparable
loss and lot of inconvenience and there is no balance of
convenience in favour of the plaintiffs, if an injunction is
granted and accordingly, dismissed the application.
5. At the time of registering this appeal, the registry had
raised an objection with regard to the maintainability of the
appeal as originally, the Suit was valued at ₹8,00,000/- which
is less than ₹10,00,000/-. Then the learned counsel appearing
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for the appellant had made a submission before the Court on
18.04.2023 that, initially, the suit was valued at ₹8,00,000/-
and then subsequently, the other properties were added and
now the suit schedule properties are valued at ₹16,00,000/-, as
such, this Court is having jurisdiction. Considering the same,
the office objection raised by the registry with regard to
maintainability of the appeal is over-ruled.
6. Learned counsel appearing for the appellant/plaintiff
No.2 submits that the GPA is in respect of 30 guntas and 30
guntas of land in two different survey numbers. As far as the
survey number in which the suit schedule property which he is
claiming is only 30 guntas of land. The Court ought to have
restrained the defendants from interfering with regard to the
other properties, but the Court had refused to grant injunction
in respect of the entire extent of 1 acre 26 guntas. It is
submitted that the property is a joint family property and the
first defendant i.e. the father of the plaintiffs has no right to
execute the GPA in favour of the third defendant and that the
third defendant has no right to alienate the properties. It is
submitted that if injunction is not granted, the plaintiffs would
be put to irreparable loss and hardship. Learned counsel
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appearing for the appellant placed before the Court a GPA and
basing on the GPA, the learned counsel submits that 30 guntas
+ 30 guntas = 60 guntas is in respect of two different survey
numbers and in respect of the other survey number, he is not
claiming any partition and it is only in this one survey number,
the Court ought to have granted injunction in favour of the
appellant, in respect of the remaining extent of the suit
schedule 'A' property.
7. It is submitted that if the injunction is not granted, lot
of injustice would be caused, however, as it is a joint family
property they made out a prima facie case and balance of
convenience is in favour of the plaintiffs. The Court has failed
to consider and the appeal is to be allowed and consequently
the I.A.No.X, seeking injunction has to be allowed.
8. Though notice is served on the respondent, no
vakalath is filed on their behalf.
9. Having heard the learned counsel for the appellant/
plaintiff No.2, perused the entire material on record. It is the
consistent case of the plaintiffs in the plaint as well as in the
I.A.No.X that the GPA that is executed by the first defendant in
favour of the third defendant is not binding on him. Neither in
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the plaint nor in the I.A.No.X, the plaintiffs have ever stated
that the GPA is in respect of the two survey numbers and
except 30 guntas of land, for the other remaining 30 guntas,
the defendant No.1 and 2 had no right to execute a GPA in
favour of the defendant No.3. He has never taken such a plea
either in the plaint or before the Court in the I.A. and such a
case is put forward before this Court. Considering the entire
extent of 1 acre 26 guntas of land, the Court has given a
finding that, the land was converted into plots long back, they
were sold to the subsequent purchasers and some of them
have already raised structures in the land. The suit is of the
year 2009. The Court also observed that the subsequent
purchasers who have raised the structures were not made
parties to the suit. It is the case of the defendant No.3 that
already, the first defendant and his father have taken the
consideration. The suit is filed in the year 2009 and this
I.A.No.X seeking injunction is filed in the year 2018.
Considering the observation of the Court that the defendant
No.3 will not claim any equity if at all the properties fell to the
share of the plaintiffs, after a full-fledged trial, when the
plaintiffs would be entitled to the properties. The Court had
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rightly rejected the case of the plaintiffs for injunction as they
have failed to make out a prima facie case, balance of
convenience and irreparable loss. Admittedly, the GPA is issued
in favour of defendant No.3 in the year 1992 and from 1992 till
2009 and from 2009 to 2018, much water has flown and at this
point of time, granting an injunction in favour of the
appellant/plaintiff No.2 is not appropriate and hence, this Court
finds no reason to interfere in the observations that are made
by the Trial Court. Accordingly, the appeal stands dismissed.
10. The observations made by this Court in deciding this
application shall not be construed as an expression of this Court
and the Trial Court shall deal with the case independently.
All I.As., if any, in the appeal shall stand closed.
SD/-
(LALITHA KANNEGANTI)
JUDGE
BMV*
