Karnataka High Court
Mr.T. D. Eshwar vs Smt. T.A. Latha on 7 August, 2024
-1-
NC: 2024:KHC:31496
MFA No. 6994 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
MISCELLANEOUS FIRST APPEAL NO. 6994 OF 2023 (CPC)
BETWEEN:
MR.T.D. ESHWAR
S/O T.N. RAVISHANKAR,
AGED ABOUT 38 YEARS,
RESIDING AT SEETHALA VILAS,
THOGARIHANKAL ESTATE,
THOGARIHANKAL VILLAGE,
JAGARA HOBLI,
CHIKKAMAGALURU TALUK - 577 101
...APPELLANT
(BY SMT.JAYNA KOTHARI, SENIOR COUNSEL FOR
SRI. NAVEEN CHANDRA. V., ADVOCATE)
AND:
1. SMT.T.A. LATHA
W/O LATE T.N.ASHOK,
AGED ABOUT 59 YEARS,
Digitally RESIDING AT PAIS COMPOUND,
signed by BESIDE MALNAD E.N.T, HOSPITAL,
MEGHA CHIKAMAGALURU CITY - 577 101
MOHAN
Location: 2. SRI.T.N. RAVISHANKAR
HIGH COURT S/O LATE T.B. NANJUNDASWAMY,
OF AGED ABOUT 78 YEARS,
KARNATAKA RESIDING AT SEETHALA VILAS,
THOGARIHANKAL ESTATE,
THOGARIHANKAL VILLAGE
JAGGARA HOBLI,
CHIKKAMAGALURU TALUK - 577 101
...RESPONDENTS
(BY SRI. HARSH S. PAREKH, ADVOCATE FOR R1
R2 IS SERVED AND UNREPRESENTED)
THIS MFA FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED:10.07.2023 PASSED ON I.A. NO.1 IN
-2-
NC: 2024:KHC:31496
MFA No. 6994 of 2023
O.S.NO. 162/2022 ON THE FILE OF THE 1ST ADDITIONAL SENIOR
CIVIL JUDGE AND J.M.F.C., CHIKKAMAGALURU, DISMISSING THE
I.A. NO.1 FILED UNDER ORDER XXXIX RULE 1 AND 2 OF CPC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
ORAL JUDGMENT
Aggrieved by the order passed in I.A.No.1 in
O.S.No.162/2022 dated 10.07.2023 by the I Additional Senior
Civil Judge & JMFC, Chikkamagaluru, the plaintiff is before this
Court.
2. The plaintiff had filed the suit for declaration and
injunction, to declare that the plaintiff is the absolute owner of
the suit scheduled property under the Will dated 10.01.2002
and also sought for permanent injunction. The suit schedule
property is coffee plantation in Sy.No.156/P total measuring 4
acres 23 guntas including Kharab, Bungalow and Writers
Quarters situated at Thogarihankal Village, Jagara Hobli,
Chikmagalur Taluk. Along with the suit, he has also filed
I.A.No.1 seeking ad-interim injunction. It is the case of the
plaintiff that he got the suit schedule property i.e., coffee
plantation in Sy.No.156/P measuring 4 acres 23 guntas
NC: 2024:KHC:31496
consisting kharab land, Bungalow and Writers Quarters by
virtue of a Will dated 10.01.2002 which was executed by his
grandfather by name T.B.Nanjundaswamy. He died on
26.01.2003 and after the death of the grandfather, the plaintiff
became the absolute owner of the property and he has been in
continuous possession and enjoyment of the property. He had
renovated the Bungalow by investing more than an amount of
Rs.50,00,000/-. According to the plaintiff, except him, no other
person has any right to the property. It is his case that in the
year 2011, without the knowledge of the plaintiff, defendant
No.1 has filed an application before the revenue authority and
got mutated her name to an extent of 27 guntas and got
mutated the katha to an extent of 27 guntas in the name of his
father. Now, the plaintiff intends to file an appeal against the
said entries made in the records. It is the further case that
taking advantage of the said revenue entries, the defendant
who is none other than the paternal uncle's wife is interfering
with his possession which made him to file the present suit.
3. The defendants have filed their written statement and
in the written statement, they have stated that there was an
earlier partition dated 25.03.1970. As for the said partition
NC: 2024:KHC:31496
deed, half of the residential bungalow and drying yard fell to
the share of the plaintiff's father and the defendant's husband.
It is their case that there is discrepancy in the suit schedule
property, the partition deed and the Will deed dated
10.02.2002. It is the case of the defendants that as per the
partition deed, in the year 2011 itself, 27 guntas is registered
in favour of the defendant No.1 and 27 guntas is registered in
favour of the plaintiff's father. It is their case that the plaintiff
do not have exclusive possession of the property and half of
residential bungalow and the drying yard belongs to the
defendants.
4. While considering the application filed by the parties,
the revenue entries, the partition deed and the Will deed that is
executed, the trial Court has observed that the name of
T.N.Ravishankar and T.N.Ashok i.e., the father and uncle of the
plaintiff were mutated in respect of 27 guntas each in
Sy.No.156/P which is much earlier to the mutation of name of
the plaintiff. The testator of the Will deed dated 10.01.2002 has
not opposed or challenged the mutation in the name of
T.N.Ravishankar and T.N.Ashok in respect of land to an extent
of 27 guntas each in Sy.No.156/P. The Court observed that the
NC: 2024:KHC:31496
stand taken by the plaintiff has to be examined in a full fledged
trial. According to the provision under Section 95 of the
Karnataka Land Revenue Act, the kharab land is part and parcel
of the fine land which is standing in the name of kathedar, but
the plaintiff has not come up with any iota of document to show
that out of the kharab land as stated in the revenue document,
what extent he has been in possession and where exactly he
has been in possession. The trial Court observed that this
aspect also has to be gone into after a full fledged trial. The
trial Court further observed that the claim of the plaintiff is
completely hostile to the arrangement made through the
undisputed division taken place through the partition deed
dated 25.03.1970 and further considering the fact that the
mutation in favour of his father and uncle for an extend of 27
guntas was not questioned and at this stage as per the material
on record, the plaintiff could not make out a prima facie case,
balance of convenience or irreparable loss and accordingly, the
trial Court had dismissed the I.A. filed by the plaintiff.
Aggrieved thereby, the plaintiff is before this Court.
5. When the matter came up before this court, the
Co-ordinate bench of this Court by order dated 11.12.2023
NC: 2024:KHC:31496
directed to maintain status quo in respect of the suit scheduled
property till the next date of hearing and the said interim order
has been extended from time to time.
6. Learned senior council appearing for the appellant -
plaintiff submits that the Will is undisputed. When the
defendants are not disputing the Will, they are not permitted to
say that the property belongs to them. It is submitted that they
have filed further appeal with regard to the revenue entries in
favour of the defendant. It is submitted that the plaintiff had
spent an amount of Rs.50,00,000/- for the renovation and have
been residing in the said building. The partition deed also
clearly says that Sy.No.156/P of an extent of 4 acres 23 guntas
fell to the share of the grandfather. The grandfather being the
owner of the property by virtue of the said partition had
executed a Will and the properties in favour of the plaintiff and
after the death of the grandfather, the plaintiff has been
enjoying the property without any interference from any
corner. When the defendants have started interfering for the
first time, he has come up before the Court. It is submitted that
the Court has given more credence to the contention of the
defendants than to the documents that are placed. It is
NC: 2024:KHC:31496
submitted that the trial Court has given more weight to the
partition deed than to the Will, as rightly observed by the court,
several issues have to be decided after a full fledged trial, but
at this point of time if an injunction is not granted, it would
cause irreparable loss to the plaintiff. It is submitted that the
plaintiff is in possession of the property and the partition deed
also supports the case of the plaintiff and he has made out a
prima facie case and balance of convenience also lies in favour
of the plaintiff. All these aspects were not appreciated by the
trial Court and the trial Court had dismissed the I.A. The trial
Court ought to have granted injunction in favour of the plaintiff
restraining the defendant from interfering with his peaceful
possession and enjoyment of the property.
7. Learned counsel appearing for the respondents -
defendants submits that the partition deed dated 25.03.1970
clearly shows what is the property in Sy.No.156 and how the
property sought are partitioned between the parties. Learned
counsel had drawn the attention of the Court to para No.7 in
the partition deed, wherein it is mentioned that the residential
house in the coffee estate, the adjacent drying yard and the
pulper house in the coffee estate have fallen to the shares of
NC: 2024:KHC:31496
second and third parties in equal shares. Second and third
parties are the father of the plaintiff and the husband of the
defendant. As it is not immediately convenient to divide them
by metes and bounds, they shall enjoy them together and may
effect division with the help of a surveyor whenever it is
convenient to them. As the first party, the grandfather has not
been allotted with any residential house in the coffee estate,
drying yard or the pulper, he shall have the right to use them
till he makes separate arrangement of his own. All the three
members shall have the common use of the well behind the
estate Bungalow. He has also drawn the attention of the Court
to A schedule properties of the partition deed, then the B
schedule and then the C schedule. In A schedule, it is
mentioned that the extent of 4 acre 23 guntas in Sy.No.156/P
and it is stated that it contains three cattle sheds and Writers
Quarters. When it comes to what has fallen to the share of both
the brothers, it is mentioned that half the land out of
Sy.No.156/P, 1 acre 15 guntas consists of residential bungalow
and drying yard. This is mentioned in both B and C schedule
that fell to the share of both the sons. Basing on this, learned
counsel submits that as per the same, he has mutated his
NC: 2024:KHC:31496
name and the name of his brother was mutated in the revenue
records way back in the year 2011. The plaintiff is aware of
such entry made in the name of the first defendant which is in
the year 2011. After filing the suit, the mutation in favour of
the defendants was questioned. He submits that the partition
deed of the year 1970, the registered document and the
subsequent mutation in the year 2011 makes it clear that the
said partition deed is acted upon. Learned counsel submits that
the grandfather cannot execute the Will in favour of the plaintiff
when he himself is not the owner of the said properties. It is
submitted that the trial Court had rightly considered all these
aspects and refused to grant injunction as the plaintiff has
failed to establish before the Court, the ingredients for grant of
an interim injunction. From the last 12 months, the matter is
pending for the evidence of the plaintiff and the plaintiff is not
appearing before the trial Court. It is submitted that there are
no grounds made out seeking interference of this Court with
the well considered order passed by the trial Court and the
appeal is liable to be dismissed.
8. Having heard the learned senior counsel for the
appellant and the counsel for the respondents, perused the
- 10 -
NC: 2024:KHC:31496
entire material on record. The plaintiff had filed a suit for
declaration and injunction in respect of 4 acres 23 guntas of
land and Bungalow in Sy.No.156/P. It is the case that that the
grandfather had executed a Will dated 10.01.2002 and he died
on 26.01.2003. According to the plaintiff, after the death of the
grandfather, he is in possession of the property and the
defendants are interfering with his possession and he sought
for declaration and injunction and also filed an I.A. seeking
injunction. When an I.A. is filed seeking interim injunction, the
burden lies on the plaintiff to prove that as on the date of filing
of the suit, he is in possession of the property. Unless and until
the injunction is granted, it would cause irreparable loss and
hardship to the plaintiff. In support of his case, he is relying
upon the Will Deed. The defendants are relying on the partition
deed and the plaintiff is also partly relying on the partition
deed. According to the plaintiff, in the partition, the entire
extent of 4 acres 23 guntas fell to the share of the grandfather
which the grandfather has bequeathed in the name of the
plaintiff by way of the Will Deed dated 10.01.2002. By way of
the said Will, along with the plaintiff, some other properties
also bequeathed in favour of defendant No.1. As such, the
- 11 -
NC: 2024:KHC:31496
plaintiff has become the absolute owner of the property and the
defendants cannot interfere with the same. While considering
this aspect, it is very much necessary to look at the partition
deed and also the Will date. The point No.1 in page No.21 of
the partition deed dated 25.03.1970 reads thus:
"1. S.No.156 Coffee Acres 4-23 Assessment Rs.4/-
called "Bimgale taku" Bounded on East by road
leading to Estate bungalow; West and North by road
leading to Mandalkhan Estate; South by
Deveerammana gadde S.No.160. This land contains 3
cattle-sheds and writer's quarters."
With regard to schedule B, point No.18 at page number
26 of the partition deed reads thus:
"8. Half the land out of S.No.156 Wet acres 1-15
Assesement Rs.1-75. This land consists of Residential
bungalow and drying yard."
Point No.9 at page number 30 of the partition deed reads
thus:
"9. Half the land out of S.No.156 Wet Acres 1-15
Assesement Rs.1-75. This land consists of Residential
bungalow and drying yard."
Point No.7 at page number 20 of the partition deed reads
thus:
- 12 -
NC: 2024:KHC:31496
"7. THE RESIDENTIAL HOUSE in the Coffee Estate, the
adjacent drying-ground and the pulper jouse in the
Coffee Estate have fallen to the shares of 2nd and 3rd
parties only equal shares. As it is not immediately
convenient to divide them by metes and bounds, they
shall enjoy them together and may effect division
with the help of a surveyor whenever it is convenient
to them. As the first party has not been allotted with
any residential house in the coffee estate drying-
ground or the pulper, he shall have the right to use
them till he makes separate arrangements on his
own. All the 3 members shall have the common use of
the well behind the Estate bungalow."
9. From a conjoined reading of point No.7 of the partition
deed, the property in schedule A, B and C, prima facie shows
that the residential bungalow and the drying yard is partitioned
among the two brothers. Now coming to the Will Deed, it only
mentions about coffee estate i.e., Sy.No.156/P which is 4 acres
23 guntas of land. Now, when it comes to the plaint, it is also
relevant to look at the prayer in the suit schedule property:
"Schedule
Coffee plantation in Sy.No.156/P total measuring 4
acres 23 guntas, including Kharab and Bungalow
writer quarters situated at Thogarihankal Village,
Jagara Hobli, Chikmagalur Taluk, bounded by:
East: Road leading to Estate bungalow.
- 13 -
NC: 2024:KHC:31496
West: Road leading to Mandal Khan Estate.
North: Road leading to Mandal Khan Estate.
South: Smt. Deveeramma Gadde in Sy.No.160."
10. When it comes to the suit schedule property, he has
included 4 acres 23 guntas including Kharab, bungalow and
writer's quarters. Now, it is the case of the defendant that as
far as the coffee estate and other remaining things are
concerned, the defendants are unconnected. The defendants
are only concerned with the bungalow. According to them, the
whole basis for the plaintiff to file the suit is the Will. The plaint
schedule is contrary to the contents and the property that is
bequeathed in favour of the plaintiff.
11. In the considered opinion of this Court, the stand
taken by the defendant is perfectly correct and based on
documents. Looking at the partition deed, the Will and the
plaint, it shows that that the bungalow never fell to the share of
the grandfather. This Court is not inclined to give any finding
with regard to the partition deed and the right of the parties at
this point of time as it would affect the case of the plaintiff. It is
sufficient to say that the material on record shows that both the
- 14 -
NC: 2024:KHC:31496
brothers have to enjoy the property jointly as per the partition
deed. The mutation in the year 2011 is in favour of both the
brothers in respect 27 guntas each. It appears that the
Tahsildar has dismissed the appeal filed by the plaintiff
questioning the mutation further appeals are filed by the
plaintiff. Apart from that no other document is filed showing
that the plaintiff is in possession of the property. Considering all
these, as questions of fact and law has to be decided in a full
fledged trial, at this point of time, the plaintiff cannot seek any
injunction restraining the respondent/defendant from enjoying
the entire bungalow. However, considering the mutation in
respect 27 guntas in favour of the respondent No.2, defendant
shall not interfere with the other 27 guntas of the land which
fell to the share of the plaintiff's father. Before parting with the
case this Court deems it appropriate to appreciate the counsel
for the respondent Sri.Harsh.S.Parekh for his sincere efforts
and the manner in which he presented his case.
ORDER
i. Accordingly, the appeal is disposed off
restraining the defendant from interfering
- 15 -
NC: 2024:KHC:31496
with 27 guntas of land fell to the share of
plaintiff's father pending disposal of the suit.
ii. All I.As. in the appeal shall stand closed.
SD/-
(LALITHA KANNEGANTI)
JUDGE
MEG
