Karnataka High Court
Sri Kishore Kumar K vs Sri Jayaram on 16 February, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:6736
MFA No. 7011 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 7011 OF 2023 (CPC)
BETWEEN:
1. SRI KISHORE KUMAR K.,
S/O SRI KUNDANMAL
AGED ABOUT 57 YEARS
R/AT NO.11, PVN LAYOUT
NAGARTHPET CROSS
BENGALURU - 560 002
2. SRI MANIKYAM
S/O LATE D. KANNAIAH MUDALIYAR
AGED ABOUT 48 YEARS
R/AT NO.34, 7TH A CROSS
T.G.LAYOUT,
NEAR ANGANAVADI SCHOOL
BENGALURU - 560085.
...APPELLANTS
Digitally signed
by SHARANYA T
Location: HIGH (BY SRI. NANDISH GOWDA G.B., ADVOCATE)
COURT OF AND:
KARNATAKA
1. SRI JAYARAM
S/O LATE DYAVAIAH
AGED ABOUT 36 YEARS,
R/AT GOLLAHALLI H VILLAGE
KENGERI HOBLI
BENGALURU SOUTH TALUK.
...RESPONDENT
(BY SRI. ARUN K.S., ADVOCATE)
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NC: 2024:KHC:6736
MFA No. 7011 of 2023
THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CPC,
AGAINST THE ORDER DT.16.08.2023 PASSED IN
O.S.NO.1959/2015 ON THE FILE OF THE VII ADDITIONAL
SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT,
BENGALURU, ALLOWING IA FILED U/O.39 RULES 1 AND 2 R/W
SEC.151 OF CPC.
THIS APPEAL, COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellants and learned
counsel for the respondent.
2. This appeal is filed challenging the order passed by
the Trial Court in allowing the I.A. and directing defendant
Nos.10 to 65 not to alienate or create any charge or
encumbrance over the suit schedule properties till the disposal
of the suit.
3. The claim of the plaintiff before the Trial Court while
filing the suit for the relief of partition, is that the suit schedule
properties viz., item Nos.1 to 3 belongs to the joint family and
the same originally belonged to one Muniyappa, the paternal
grand father of the plaintiff. He had two sons by name
Doddachikkaiah and Dyavaiah. Dyavaiah is the father of the
plaintiff. The 1st son of Muniyappa by name Doddachikkaiah
died 30 years ago leaving behind his legal heirs. After the
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death, there was a partition between the legal heirs of the said
Doddachikkaiah and Dyavaiah under a oral partition deed dated
22.09.1994. In the said partition, the plaintiff's father Dyavaiah
was allotted 2 acres 23 guntas of land in Sy.No.17 of
K.Gollahalli Village and the remaining 2 acres 23 guntas in the
same survey number was allotted to the legal heirs of
Doddachikkaiah. In terms of the partition, mutation was also
effected as per MR No.13/1996-97. The aforesaid Dyavaiah
married Ammakka the 1st defendant. He had three sons by
name Munikrishna, Hanumaiah and Jayaram. The said
Dyavaiah died in the year 2000. After his death, the plaintiff
and his brothers have jointly inherited the property. At the
instance of Munikrishnappa, the survey authorities have
effected sub-division of entire land bearing Sy.No.17 and the
new numbers are assigned as Sy.No.17/1 measuring 1 acre 4
guntas, Sy.No.17/2 measuring 2 acres 20 guntas, Sy.No.17/3
measuring 0-18 guntas and Sy.No.17/4 measuring 1 acre 4
guntas. The share fallen to the legal heirs of deceased
Doddachikkaiah is assigned with Sy.No.17/2, which measures 2
acres 20 guntas of Phot-Kharab. The property fallen to the
share of legal heirs of Dyavaiah viz., the plaintiff, defendants
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No.1 to 6 is assigned with Sy.No.17/1 measuring 2 acres 8
guntas and the said survey number has been further sub-
divided and assigned survey numbers as 17/1 measuring 1 acre
4 guntas. Sy.No.17/3 measuring 0-18 guntas and Sy.No.17/4
measuring 1 acres 4 guntas, which are the suit schedule
properties. The defendants Nos.1 to 9 without consent or
permission or for legal necessity executed a registered sale
deed dated 03.02.2015 in favour of defendant No.10 in respect
of land bearing Sy.No.17/1 measuring 1 acre 4 guntas out of
total extent of 2 acres 8 guntas though there was no partition
or division took place. The plaintiff came to know of the said
fact in the 1st week of November 2015. Thereafter a panchayat
was convened on 28.10.2015 and in the said panchayat the
plaintiff has put forth his demand for partition and allotment of
his legitimate share in the suit schedule properties, but
defendants refused to effect the partition. The sale deed
executed in favour of defendant No.10 is not binding on the
plaintiff. Subsequent to filing of the suit, defendant No.10 has
got impleaded and the plaintiff has also got impleaded the
purchasers. The defendant No.10 has illegally sold several sites
formed in the suit schedule properties in favour of defendants
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No.11 to 65. In order to prevent the multiplicity of proceedings,
an application is filed under Order 39 Rule 1 and 2 of Code of
Civil Procedure, 1906 restraining the defendant Nos.10 to 65
from further alienating the suit schedule properties.
4. The defendants in their written statement denied
the plaint averments and contended that the plaintiff is not
entitled for any share in the suit schedule properties and they
contend that they are the bonafide purchasers as they have
enquired with the marketable title and necessity of defendant
Nos.1 to 9 and only thereafter, they have purchased the
property and they are in possession of the same and if any
injunction order is granted, the right of enjoyment of the
property will be defeated.
5. The Trial Court having considered the grounds
urged in the plaint and also the written statement formulated
the points viz., (i) Whether the plaintiff has made out prima-
facie case to grant temporary injunction? (ii) Whether balance
of convenience lies in his favour? (iii) Whether he will be put to
irreparable loss and injury, if injunction is refused?
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6. Having considered the factual aspects of the case
and also the contentions, the trial court comes to the
conclusion that the relationship has not been disputed and also
the properties belong to joint family is also not in dispute.
However, the property was sold in favour of defendant No.10
by defendant Nos.1 to 9 and the plaintiff is not a party to the
sale made in favour of defendant No.10 and by virtue of the
sale deed dated 30.02.2015, the defendant No.10 has sold the
property by forming the sites in favour of defendant Nos.11 to
65 and if they have further sold the property, it will cause
prejudice to the plaintiff. Therefore, the Trial Court held that
the balance of convenience lies in favour of the plaintiff and he
will be put to irreparable loss and injury will be if injunction is
refused and accordingly, answered point Nos.2 and 3 in the
affirmative. Hence, the present appeal is filed.
7. The learned counsel appearing for the appellants
would vehemently contend that the plaintiff has filed an
application only in respect of restricting prayer in item No.1,
wherein sites have been formed and the sites have already
been sold. The plaintiff kept quite for a longer period from
2015, though suit was filed in the year 2015 and the
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application was filed in 2023, and he came forward for
settlement when the sites are formed and same are sold. The
Trial Court has failed to take note of the said fact into
consideration and granted an interim order. The learned
counsel for the appellants in support of his argument has
placed reliance on a decision of the Hon'ble Apex Court in
'KASHI MATH SAMSTHAN AND ANR. VS. SRIMAD
SUDHINDRA THIRTHA SWAMY AND ANR.', AIR 2010 SC
296 wherein it is held that if a party is unable to prove prima
facie case, injunction cannot be granted even if such party
makes out case of balance of convenience and irreparable
injury.
8. Per contra, learned counsel for the respondent
submits that the Trial Court has passed a reasoned order and
while passing the order, it has taken note of the relationship
between the parties and in para 16 has stated that the suit
schedule properties are the joint family properties and the
plaintiff is in joint possession of the suit schedule properties as
has been pleaded. It has further observed that when there is
no dispute with regard to the relationship between the parties
and when the plaintiff is not party to the earlier sale deed and if
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further alienation is made, it will cause prejudice to the
plaintiff.
9. Having taken note of the pleading as well as the
reasoning given by the Trial Court, it is clear that the Trial
Court mainly comes to the conclusion that admittedly the
plaintiff is not a party to the first alienation that has taken place
in favour of defendant No.10 by virtue of a registered sale deed
dated 03.02.2015 and that the appellants have also not
disputed the said fact that in the said sale deed dated
03.02.2015, they are party to the sale deed and also it is the
contention of the defendants that they have purchased the
properties and a layout is formed by defendant No.10 and they
have invested the money and purchased the same. No doubt,
defendant Nos.11 to 65 are the subsequent purchasers from
defendant No.10 and also there is a sale deed in favour of
defendant No.10 executed by defendant Nos.1 to 9. When the
plaintiff is not a party to the sale deed, his interest also has to
be protected and the same is also taken note of by the Trial
Court in para 18 of the order while coming to the conclusion
that though they are the bonafide purchasers, the same is a
matter of trial and at this stage the same cannot be decided
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and hence, they have made out a prima facie case. It has also
taken note that the balance of convenience lies in favour of the
respondent or otherwise it amounts to multiplicity of
proceedings if the subsequent purchasers sells the properties.
Hence, the Trial Court also comes to the conclusion that there
is a balance of convenience in favour of the plaintiff. Having
taken note of the material available on record, when the
plaintiff is not a party to the sale deed and no doubt defendant
No.1 to 9 have executed a sale deed in favour of defendant
No.10 and subsequently defendant Nos.11 to 65 have
purchased the property when the plaintiff is not a party to the
sale deed, his right also has to be protected and hence, I do
not find any error committed by the trial court since, the
plaintiff has made out a prima facie case that his right has been
affected and defendant Nos.1 to 9 have sold the property
without his consent. Under these circumstances, I do not find
any merit in the appeal to reverse the finding of the Trial Court.
Accordingly, the appeal is dismissed.
.
Sd/-
JUDGE
SS
