Karnataka High Court
Shri Dinesh Thaku Naik vs Shri Girijakant Thaku Naik on 6 February, 2024
Author: V.Srishananda
Bench: V.Srishananda
-1-
NC: 2024:KHC-D:2635
MFA No. 105009 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 6TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
MISCELLANEOUS FIRST APPEAL NO.105009 OF 2023 (CPC)
BETWEEN:
1. SHRI. DINESH THAKU NAIK,
AGE. 60 YEARS, OCC. RETIRED,
R/O.NO.7, SHREE GANESH CHS,
SEC.3, CHARKOP, KANDIVALI WEST,
MUMBAI-400 067.
2. SHRI. ASHOK THAKU NAIK,
AGE. 72 YEARS, OCC. RETIRED,
R/O.NO.200/C, VATSAL BHAVAN,
GOPI TANK ROAD, SHIVAJI PARK,
MUMBAI-400 016.
3. SMT. SAMITA DATTATRAY NIGUDKAR,
AGE. 69 YEARS, OCC. HOUSEWIFE,
Digitally
R/O. G7, KIRITINAGAR, VADGAON,
signed by BUDRUK, PUNE-411041.
SAROJA
SAROJA HANGARAKI
HANGARAKI Date:
2024.02.19
16:01:24
4. SHRI. RAJENDRA THAKU NAIK,
+0530 AGE. 64 YEARS, OCC. RETIRED,
R/O.NO.104, 1ST FLOOR, A WING,
USHAPRABHA CHS, PRABHU ALI,
NEAR GAONDEVI TEMPLE,
OLD PANVEL-410206.
5. SMT. MEENA SIVABALAM
D/O THAKU NAIK,
AGE. 58 YEARS, OCC. HOUSEWIFE,
R/O.NO.405/B WING, AVISHKAR CHS,
SEC.6, CHARKOP, KANDIVALI WEST,
-2-
NC: 2024:KHC-D:2635
MFA No. 105009 of 2023
MUMBAI-400067.
...APPELLANTS
(BY SRI. R.H. ANGADI, ADVOCATE)
AND:
1. SHRI. GIRIJAKANT THAKU NAIK,
AGE. 74 YEARS, OCC. RETIRED,
R/O. GIDDA ROAD, KAJUBAG,
KARWAR, U.K.
2. SHRI. KRISHNA NARAYAN KELASKAR,
AGE. 58 YEARS, OCC. BUSINESS,
R/O.KENCHA ROAD, KARWAR, U.K.
3. SHRI. RAJESH ACHYUT KAMAT,
AGE. 50 YEARS, OCC. BUSINESS,
R/O. ABOVE MAHALAKSHMI ELECTRONICS,
OPP. GOVT. HIGH SCHOOL,
KARWAR U.K.
...RESPONDENTS
(BY SRI. A.P. HEDGE JANAMANE, ADVOCATE FOR R3;
NOTICE TO R1 AND R2 SERVED)
THIS M.F.A. IS FILED U/O.43 RULE 1 OF THE CODE OF CIVIL
PROCEDURE, PRAYING TO SET ASIDE THE IMPUGNED ORDER IN
I.A.NO.2, DATED 21.04.2023, FILED UNDER ORDER 39 RULES 1 AND
2 R/W SEC.151 CPC, IN O.S.NO.18/2023, ON THE FILE OF SENIOR
CIVIL JUDGE, KARWAR, VIDE ANNEXURE-E AND CONSEQUENTLY
ALLOW THE I.A.NO.2 FILED UNDER ORDER 39 RULES 1 AND 2 R/W
SECTION 151 CPC, VIDE ANNEXURE-B, BY ALLOWING THE PRESENT
APPEAL FILED BY THE RESPONDENT HEREIN, TO MEET THE ENDS OF
JUSTICE.
THIS M.F.A., COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
-3-
NC: 2024:KHC-D:2635
MFA No. 105009 of 2023
JUDGMENT
Heard Sri.R.H.Angadi, learned counsel for the
appellants and Sri.A.P.Hegde Janamane, learned counsel
for respondent No.3.
2. This appeal is filed by the plaintiffs in
O.S.No.18/2023 on the file of Senior Civil Judge, Karwar
rejecting the application for grant of temporary injunction
not to put up construction on the suit property on the
ground that the suit is filed for cancellation of sale deed
executed by defendant No.1 in favour of defendants No.2
and 3.
3. Case of the plaintiffs is that defendant No.1 has
no exclusive right over the suit property and therefore he
should not have sold the property in favour of defendants
No.2 and 3 which is detrimental to the interest of the
plaintiffs. Therefore, sought for an order of injunction.
NC: 2024:KHC-D:2635
4. The suit is still pending to be adjudicated.
Accordingly, plaintiffs have also got right over suit
property.
5. According to defendant No.1, he is exclusive
owner of the suit property and thereby exercised absolute
ownership rights and sold property in favour of defendants
No.2 and 3.
6. Based on the power of attorney executed by the
entire family members including plaintiffs, he has
alienated the suit property in favour of defendants No.2
and 3 and claim of the plaintiffs, if any, at the most is for
the share in the suit property to the extent of plaintiffs'
share. Therefore, injunction application needs to be
dismissed.
7. Defendants No.2 and 3 claim themselves as the
bonafide purchasers for value having purchased the suit
property after due diligence and after noticing the fact that
defendant No.1 had the power of attorney in his favour
NC: 2024:KHC-D:2635
executed by the plaintiff and other family members.
Therefore, their right to enjoy the property absolutely
cannot be curtailed by an order of injunction.
8. Taking these aspects of the matter in a
cumulative manner, trial Court dismissed the application
filed by the plaintiffs seeking for an order of injunction
restraining defendants No.2 and 3 from putting up any
construction over the suit property during the pendency of
the suit.
9. Being aggrieved by the same, plaintiffs are in
appeal.
10. Learned counsel for the plaintiffs Sri.R.H.Angadi
reiterating the grounds urged in the appeal memorandum,
contended that if the application is not allowed and if the
status-quo is not maintained, very purpose of the suit
would become infructuous and the equities would creep in
at the end of trial. If the plaintiffs succeed, their right, title
NC: 2024:KHC-D:2635
and interest would be put to jeopardy and sought for
allowing the appeal.
11. Per contra, Sri.A.P.Hegde Janamane
representing defendant No.3 supports the impugned order.
12. Respondents No.1 and 2 though served with
notice, remained absent.
13. In view of the rival contentions of the parties,
this Court perused the material on record meticulously.
14. On such perusal of material on record,
admittedly, there is a power of attorney executed by the
plaintiffs in favour of defendant No.1. Not only plaintiffs
have executed power of attorney but other family
members have also executed power of attorney in favour
of defendant No.1 to deal with the suit property.
15. Plaintiffs have contended that the said power of
attorney is concocted one inasmuch as plaintiffs have not
signed the said power of attorney. It has been forged by
defendant No.1.
NC: 2024:KHC-D:2635
16. Whether power of attorney is a genuine
document or not cannot be decided by this Court in this
appeal. The same needs to be adjudicated before the trial
Court by placing necessary evidence on record.
17. Fact remains that based on the power of
attorney produced by defendant No.1, defendants No.2
and 3 have purchased the suit property. If defendants
No.2 and 3 were to put up construction, according to the
plaintiffs, same would be detrimental to the interest of the
plaintiffs.
18. Admittedly, since there is a sale deed in favour
of defendants No.2 and 3, they cannot be curtailed from
putting up construction. However, there is sufficient force
in the argument on behalf of plaintiffs as well that in the
event of plaintiffs succeeding in the suit, their interest
would be put to jeopardy and equities would creep in.
19. Sri.A.P.Hegde Janamane, learned counsel for
defendant No.3 submits that in the event of plaintiffs
NC: 2024:KHC-D:2635
succeeding in the suit, defendants No.2 and 3 shall not
plead equity insofar as constructed portion is concerned.
They would not plead equity as a ground for effective
execution of the decree which the plaintiffs would be
getting in the suit after adjudication.
20. Such an statement would quell all the
apprehensions of the plaintiffs.
21. Suffice to say, since there is a registered sale
deed in favour of defendants No.2 and 3 based on the
power of attorney executed by the plaintiffs and other
family members in favour of defendant No.1, this Court is
of the considered opinion that dismissal of injunction
application is just and proper.
22. Accordingly, following order is passed:
ORDER
(i) Appeal stands disposed of.
NC: 2024:KHC-D:2635
(ii) It is made clear that in the event plaintiffs
should not plead equity if they carry out
construction on the suit property.
Sd/-
JUDGE
SH
