Karnataka High Court
M/S. Valmark Estates Llp vs Smt. Marakka on 8 February, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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MFA No. 2712 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 2712 OF 2021 (CPC)
BETWEEN:
1. M/S. VALMARK ESTATES LLP
(PREVIOUSLY KNOWN AS VALMARK
ESTATE PRIVATE LIMITED)
HAVING ITS OFFICE AT NO.133/1,
THE RESIDENCY, 10TH FLOOR,
RESIDENCY ROAD, BANGALORE-560 026,
REPRESENTED BY ITS AUTHORIZED SIGNATORY
SRI. PARAS TOLIA.
...APPELLANT
(BY SRI. RADHANANDAN B.S., ADVOCATE)
AND:
1. SMT. MARAKKA
D/O. LATE MUNISHAMI @ MUNISWAMAPPA,
Digitally signed
by SHARANYA T AGED ABOUT 70 YEARS,
Location: HIGH
COURT OF 2. SMT. MUNINARAYANAMMA
KARNATAKA
D/O. LATE MUNISHAMI @ MUNISWAMAPPA,
AGED ABOUT 65 YEARS,
BOTH ARE RESIDING AT 16TH WARD,
MADAGALAMMA TEMPLE STREET,
DEVANAHALLI TOWN,
BANGALORE RURAL DISTRICT.
3. SMT. DURGAMMA
W/O. LATE MUNIYAPPA,
AGED ABOUT 75 YEARS,
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MFA No. 2712 of 2021
4. SMT. GANGAMMA
D/O. LATE MUNIYAPPA,
AGED ABOUT 50 YEARS,
RESPONDENTS NO.3 AND 4 ARE
RESIDING AT RAYASANDRA VILLAGE
RESIDING AT RAYASANDRA VILLAGE,
KASABA HOBLI, DEVANAHALLI TALUK,
BANGALORE RURAL DISTRICT.
5. SMT. MUNIVANKATAMMA
D/O. LATE MUNIYAPPA,
AGED ABOUT 48 YEARS,
RESIDING AT GAMBEERANAHALLI
VILLAGE, HINDUPURA ROAD,
GOWRIBIDANUR TALUK,
CHIKKABALLAPURA DISRICT.
6. SMT. SUJATHA
D/O. LATE MUNIYAPPA,
AGED ABOUT 44 YEARS,
RESIDING AT BACHAHALLI VILLAGE,
HINDUPURA ROAD,
GOWRIBIDANUR TALUK,
CHIKKABALLAPURA DISRICT.
7. SRI. MUNISWAMY
S/O. LATE MARAPPA,
AGED ABOUT 45 YEARS,
8. SMT. MALAMMA
D/O. LATE HANUMANTHAPPA,
AGED ABOUT 57 YEARS,
9. SRI. MUNINAGAPPA
S/O. LATE HANUMANTHAPPA,
AGED ABOUT 57 YEARS,
10. SMT. MUNIYAMMA
D/O. LATE HANUMANTHAPPA,
AGED ABOUT 54 YEARS,
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MFA No. 2712 of 2021
11. SRI. MUNISWAMAPPA
S/O. LATE HANUMANTHAPPA,
AGED ABOUT 51 YEARS,
12. SRI. MUNIKRISHNA
S/O. LATE HANUMANTHAPPA,
AGED ABOUT 48 YEARS,
13. SRI. MUNIRAJU
S/O. LATE HANUMANTHAPPA,
AGED ABOUT 46 YEARS,
14. SMT. MANJULA
D/O. LATE CHIKKAMUNIYAPPA,
AGED ABOUT 32 YEARS,
15. SRI. MUNIRAJA
S/O. LATE CHIKKAMUNIYAPPA,
AGED ABOUT 26 YEARS,
16. SRI. MURALIDHARA
S/O. LATE CHIKKAMUNIYAPPA,
AGED ABOUT 24 YEARS,
RESPONDENTS No.7 TO 16 ARE
RESIDING AT RAYASANDRA VILLAGE
KASABA HOBLI, DEVANAHALLI TALUK
BANGALORE RURAL DISTRICT.
17. SRI. A. R. SATHISH
S/O. LATE A. C. RAMAPPA,
AGED ABOUT 58 YEARS,
RESIDING AT ATTIKODIGE,
BANDIGADI VILLAGE,
THEERTHAHALLI TALUK,
SHIVAMOGGA DISTRICT.
...RESPONDENTS
(BY SRI. NANJA REDDY P.N., ADVOCATE FOR R1 & R2;
NOTICE TO R3 TO R17 ARE DISPENSED WITH
VIDE ORDER DATED 09.07.2021)
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MFA No. 2712 of 2021
THIS MFA IS FILED U/O. 43 RULE 1(r) OF CPC, AGAINST
THE ORDER DATED. 03.03.2021, PASSED ON IA NO.1, IN O.S.
NO.978/2020, ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JMFC., DEVANAHALLI, ALLOWING THE IA NO.I FILED U/O.39
RULE 1 AND 2 OF CPC.
THIS APPEAL, COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellant and learned
counsel for the respondent Nos.1 and 2.
2. This miscellaneous first appeal is filed by the
defendant No.16 being aggrieved by the order passed by the
Trial Court in allowing the application viz., I.A.No.I filed under
Order 39, Rule 1 and 2 of C.P.C., wherein the Trial Court has
granted the relief of temporary injunction not to alienate the
suit schedule property in favour of third parties, till further
orders.
3. The main contention of the learned counsel
appearing for the appellant is that the learned Trial Judge has
failed to consider that the schedule property was a granted land
granted to Muniswamy, S/o. Doddamuniga, who was the father
of Muniyappa. The learned Trial Judge failed to consider that
after the death of Muniswamy, S/o. Doddamuniga, the
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mutation was made out in the name of Muniyappa during the
year 1983-84 and subsequently, the property was sold by wife
and children of Muniyappa. The said fact has not been
considered by the learned Trial Judge and recorded a wrong
finding that the plaintiffs have made out a prima facie case.
4. Learned counsel also would vehemently contend
that the claim of the plaintiffs that the grant was made to the
benefit of the joint family is only a self-serving statement. It is
contended that the nature of grant was a grant to a person,
who belonged to a member of schedule caste. As per the
terms of the grant, the schedule property was not cultivated by
any member of the family of Muniswamy at any point of time
and prior to the grant, it was granted to Muniswamy,
S/o. Doddamuniga for cultivation from the date of issue of
saguvali chit. Unlike grant of occupancy rights under the
Karnataka Land Reforms Act or re-grant under the respective
Inam Abolition Acts, there was no prior cultivation of the lands
and it was the grant personally to the beneficiary of the grant
as identified by the Government. Learned counsel would
further contend that even as per the terms of the grant, there
is no whisper that Muniswamy, S/o. Doddamuniga was a
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member of the joint family or that it was granted for the benefit
of joint family. Hence, the claim made by the plaintiffs is a
false claim. Even otherwise, when the lands were acquired in
the year 1956 and as per the applicable law, said Marakka was
not a member of joint family and therefore, when the land was
granted in the year 1956 to Munishami, S/o. Munishamappa, it
was to the benefit of the joint family.
5. Learned counsel would vehemently contend that,
earlier a suit was filed in O.S.No.265/2011 by one Muniswamy,
S/o. late Marappa, wherein the respondent Nos.1 and 2 are
defendant Nos.6 and 7 and defendant No.6-Marakka is
represented through counsel and she was having the
knowledge that sale was made in favour of defendant No.15 in
the year 2013 and in the said suit, a compromise was entered
into between defendant No.2 and plaintiffs and subsequently,
the suit was withdrawn and when they had the knowledge
about earlier suit filed by Muniswamy in the year 2011 itself,
present suit is filed in the year 2020 claiming that the property
is granted in favour of their father Muniswamy @
Munishamappa. It is contended that some person has sold the
property, who was not having any right and claim is made in
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respect of 2 acres of land granted in the year 1956. The
counsel also would submit that subsequent to the sale made in
favour of defendant No.15, present appellant had purchased
the property from defendant No.15 and layout plan is also
approved. When the appellant was preparing to sell the
property, at that juncture, the present suit is filed. Hence, the
Court has to take note of the conduct of the plaintiffs in
approaching the Court. The learned counsel also would
vehemently contend that the Trial Court committed an error in
coming to the conclusion that, if property is alienated, it will
cause prejudice to the right of the plaintiffs, since the plaintiffs
are seeking the relief of partition and separate possession in
respect of the property alleged to be granted in favour of their
father and defendant No.1 is claiming right based on the grant
made in favour of father-in-law of defendant No.1 and the
matter requires trial and hence, prima facie, the observations
made by the Trial Court is not correct and when the property
was already sold long back and when the plaintiffs kept quiet
for years, they cannot seek discretionary relief of temporary
injunction.
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6. Learned counsel for the appellant/defendant No.16,
in support of his argument, relied upon the judgment of this
Court in RICHFIELD CONSTRUCTIONS PRIVATE LIMITED,
SAROORNAGAR MANDAL, RANGA REDDY DISTRICT,
ANDHRA PRADESH VS. SMT. RUKMANIAMMA AND
OTHERS reported in 2010 SCC ONLINE KAR 5255, wherein
this Court has made an observation that the undertaking given
by the petitioner is just and equitable. It will safeguard the
interest of the plaintiffs/respondents, as they will be entitled to
get developed sites in lieu of their share in the agricultural
land. In the layout map enclosed to the undertaking,
contiguous sites bearing Nos.1, 2, 21 and 22 are agreed to be
earmarked. The counsel referring this judgment would contend
that this Court earlier protected the interest of the purchaser,
who purchased the property and invested money for
development after obtaining sanction from the concerned
authority and approved plan is also placed before the Court.
Hence, it is contended that the Trial Court ought not to have
granted the relief in respect of entire land to the extent of 2
acres. The counsel also would submit that after approval, out
of 2 acres, after deducting 50% of the property and amenities,
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it comes to 1 acre in favour of approving authority and the said
fact ought to have been taken note by the Trial Court. Hence,
the order impugned requires to be set aside or modified and
prays this Court to allow the appeal.
7. Per contra, learned counsel for the respondent
Nos.1 and 2 submits that though the respondent Nos.1 and 2
are made as defendant Nos.6 and 7 in O.S.No.265/2011 and
though in the order sheet, it is mentioned that defendant No.6
is represented along with other defendants, i.e., plaintiff No.1
before the Trial Court, she was never represented and given
any power to any counsel and the said suit was also
subsequently withdrawn. The learned counsel also brought to
notice of this Court that, earlier, case was compromised
between the defendant No.2 and the plaintiffs and thereafter,
the same was withdrawn. The learned counsel would
vehemently contend that when the plaintiffs are making claim
that the property is allotted in favour of their father, sale deed
obtained by a third person will not create any right and claim is
made by the plaintiffs stating that they are having 1/4th share
and the property which was granted is a joint family property.
Hence, they are entitled for a share in the property and
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therefore, the Trial Court, having taken note of the claim made
by the plaintiffs, protected the interest by granting the interim
relief of temporary injunction not to alienate the property.
Learned counsel also would submit that the suit was filed in
2020 and direction may be given to the Trial Court to dispose
of the suit within a period of three months or six months and
the interest of both the parties will be protected, if such a
direction is given.
8. Having heard the learned counsel for the appellant
and learned counsel for the respondent Nos.1 and 2 and also
considering the grounds urged in the appeal and the principles
laid down in the judgment of this Court relied upon by the
learned counsel for the appellant, the point that would arise for
consideration of this Court are:
(1) Whether the Trial Court has committed an
error in granting an order of temporary
injunction not to alienate the suit schedule
property, till further orders and it requires
interference of this Court?
Point No.(1)
9. Having heard the learned counsel for the appellant
and also learned counsel for the respondent Nos.1 and 2, no
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dispute with regard to the fact that plaintiffs are the children of
propositus of the family Munishami @ Muniswamappa. The suit
is filed by Marakka and Muninarayanamma, who claim that they
are grand-children of Doddamuniga @ Muniyappa. It is also
the claim of the plaintiffs that grant was made in favour of their
father Munishami @ Muniswamappa. The appellant/defendant
No.16 is denying the said fact contending that grant was made
in favour of the father-in-law of the defendant No.1 i.e.,
Muniswamappa and not in favour of the father of the plaintiffs.
The appellant also disputes the relationship between the
parties. The counsel has also placed the document of suit filed
in O.S.No.265/2011, wherein earlier a suit is filed by the grand-
son of Doddamuniga @ Maniyappa that he is having a second
son by name Guddimunishami against the plaintiffs and
defendants in respect of one of the item of the suit schedule
property, including Sy.No.78. It is also not in dispute that
earlier suit filed by said Munishami @ Muniswamappa was
compromised between the defendant No.2 and the plaintiffs,
wherein also the plaintiffs are parties as defendant Nos.6 and
7. It is the claim of the appellant that among defendant Nos.6
and 7, defendant No.6 is represented but, defendant No.7 is
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not represented and she was placed exparte and the defendant
No.6 was having the knowledge of earlier suit filed in the year
2011 by one Munishami @ Muniswamappa. The counsel for the
appellant also would vehemently contend that the present suit
is filed in 2020. But, learned counsel for the respondent Nos.1
and 2/plaintiff Nos.1 and 2 disputes the fact that plaintiff No.1
never appeared and in the said suit and the plaintiff is not a
party to the compromise or for the withdrawal on 04.07.2023
after filing the present suit.
10. Learned counsel for the appellant would also
contend that when there is no dispute, learned counsel for the
respondent Nos.1 and 2 claims that grant was made in 1956 in
favour of father of the plaintiffs and defendants also claim right
through defendant No.1 that grant was made in favour of
father-in-law of defendant No.1, the same requires
determination. There is a force in the contention of the learned
counsel for the respondent Nos.1 and 2 that when there is no
dispute with regard to the very grant, whether it is in favour of
the father of the plaintiffs or in favour of the father-in-law of
the defendant No.1 i.e., Muniswamappa is a matter of trial.
Learned counsel for the appellant also contend that
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independent genealogical tree is produced before the Trial
Court, showing the name of the father of the plaintiffs as
Munishami @ Doddamuniga. When such claim is made, it is a
matter of trial and at this juncture, this Court cannot decide the
same.
11. Learned counsel for the appellant has also produced
the saguvali chit in the name of Muniswamy and a saguvali chit
in the name of Gundaliga i.e., the third son of original
propositus Munishami @ Doddamuniga, entire order sheet,
copy of the plaint and written statement in O.S.No.60/2010,
copy of the entire order sheet, copy of the amended plaint,
affidavit and copy of memo for withdrawal in O.S.No.265/2011.
Having taken note of the said material, it is not in dispute that
compromise was entered in O.S.No.265/2011 between
defendant No.2 and plaintiffs and other defendants are not
parties to the compromise and subsequent suit is withdrawn in
2023 after filing of the suit by the plaintiff Nos.1 and 2 in 2023
and matter requires trial whether the grant was made in favour
of the father of the plaintiffs or in favour of the father-in-law of
the defendant No.1 as claimed by the learned counsel for the
appellant.
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12. However, learned counsel for the appellant brought
to notice of this Court that claim is made in respect of only 2
acres of the land and brought to notice of this Court by
producing the layout plan that sites are formed not only in
respect of suit schedule property, but also in respect of other
properties, totally to the extent of 19 acres and suit is filed in
2020 and whether the plaintiffs had the knowledge of earlier
suit or whether they are represented or not is a matter of trial.
Apart from that, the Court can protect the interest of the
appellant also, since the appellant has invested money after
purchase, and the property was earlier sold by defendant Nos.1
to 6 and sites are formed and some of the sites are sold. But,
in order to protect the interest of the plaintiffs, it is appropriate
to restrain the appellant herein not to alienate the property to
the extent of 1/4th share as claimed by the plaintiffs, as the
plaintiffs in the suit are claiming rights contending that the
property belongs to the joint family and their share is to the
extent of 1/4th share. Hence, it requires modification of the
order of temporary injunction passed by the Trial Court and
even if the plaintiffs succeed, they would get 1/4th share as
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claimed in the plaint. Hence, the order passed by the Trial
Court at this juncture needs modification.
13. Learned counsel for the appellant would submit that
the share of the plaintiffs would come to around 10,000 square
feet and the said submission cannot be accepted, in view of
layout being approved and out of 2 acres, the extent of
property given to the appellant for sale in the particular survey
number and out of that, 1/4th alleged claim of the plaintiff can
be protected and hence, the learned counsel for the appellant is
directed to file a memo to that effect stating how much
property the appellant has got in terms of approved layout plan
and earmark 1/4th sites in the said survey number. Learned
counsel for the appellant to file memo within four days and give
an undertaking that he will not alienate the said sites which
have been described in the said memo and injunction is also
sought in respect of those sites.
With these observations, the appeal is disposed of.
Sd/-
JUDGE
ST
