Karnataka High Court
Santosh Patil vs Vimalabai And Ors on 29 February, 2024
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MFA No. 200448 of 2024
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
MISC. FIRST APPEAL NO.200448 OF 2024 (CPC)
BETWEEN:
SANTOSH PATIL
S/O LATE PRABHAKARRAO PATIL SIRSIKER,
AGE ABOUT 48 YEARS,
OCC: GOVERNMENT SERVANT AND AGRICULTURE,
R/O CHITGUPPA TOWN,
PROPER DISTRICT BIDAR,
NOW RESIDING AT GURU NANAK COLONY,
Digitally signed by BIDAR-585401.
KHAJAAMEEN L
MALAGHAN ...APPELLANT
Location: HIGH
COURT OF (BY SRI K. M. GHATE, ADVOCATE)
KARNATAKA
AND:
1. SMT. VIMALABAI W/O LATE MUKUNDRAO,
AGE ABOUT 80 YEARS,
OCC: HOUSEHOLD,
R/O H.NO. 7-133,
KUNBIWADA CHITGUPPA TOWN,
DISTRICT BIDAR,
NOW RESIDING AT BASVESHWAR COLONY,
5TH CROSS, NEAR THE HOUSE OF GHALE CIRCLE,
KALABURAGI-585102.
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MFA No. 200448 of 2024
2. DIVAKAR S/O LATE MUKUNDRAO PATIL,
AGE ABOUT 72 YEARS,
OCC: PRIVATE MEDICAL PRACTITIONER,
R/O "KIRSHNA VILLA", VIJAYA COLONY,
MIRAJ TALUKA DISTRICT SANGLI,
(MAHARASHTRA STATE)-416410.
3. SMT. LEELABAI W/O LATE SUDHAKARRAO
KULKARNI,
AGE ABOUT 63 YEARS,
OCC: HOUSEHOLD,
R/O VILLAGE RAJESHWAR,
TALUKA BASAVAKALYAN,
DISTRICT BIDAR-585423.
4. SMT. GIRIJA W/O LATE SHANKER RAO KULKARNI,
AGE ABOUT 51 YEARS,
OCC: PRIVATE SERVICE AND HOUSEHOLD,
R/O BASVESHWAR COLONY,
5TH CROSS, NEAR THE HOUSE OF GHALE CIRCLE,
KALABURAGI-585102.
5. M/S. VASAVI DEVELOPERS,
PRABHA COMPLEX,
OPP. KOTAK MAHINDRA BANK,
STADIUM ROAD, BIDAR,
REPRESENTED BY,
BASWARAJ S/O LATE SHANKERAPPA CHOUDARY
(TELI),
AGE ABOUT 52 YEARS, OCC: BUSINESS,
R/O H.NO.7-2-71, CHITRA CORNER,
BIDAR-585401.
6. ANAND S/O OMPRAKASH DACHEPALLI
AGE ABOUT 36 YEARS, OCC: BUSINESS,
R/O LIG 39, KHB COLONY,
BIDAR-585401.
...RESPONDENTS
(BY SRI S.B. HANGARKI, ADVOCATE FOR C/R5;
SRI BASAVARAJ KAREDDY, ADVOCATE FOR R6)
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MFA No. 200448 of 2024
THIS MFA IS FILED UNDER ORDER XLIII RULE R-1(r) (i)
READ WITH SECTION 104 OF CODE OF CIVIL PROCEDURE,
PRAYING TO ALLOW THE APPEAL AND THEREBY SET-ASIDE
THE ORDERS PASSED BY THE SENIOR CIVIL JUDGE AND JMFC
HUMNABAD IN O.S.NO.206/2023 ON IA NO.1 UNDER ORDER
XXXIX RULE 1 AND 2 OF CPC BY ORDER DATED 18-01-2024
AND THEREBY PLEASE TO ALLOW THE SAID I.A.NO.I AS
PRAYED FOR BY THE APPELLANT PLAINTIFF, AS AGAINST
DEFENDANTS - RESPONDENTS NO.5 AND 6.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though this matter is listed for hearing on
interlocutory application, the same is taken up for final
disposal by consent of the parties.
02. The notice to respondents No.1 to 4 is
dispensed with at the risk of the appellant. The respondent
No.5 appeared as caveator and respondent No.6 has
appeared through his counsel.
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03. The appellant who was the plaintiff before the
Trial Court has approached this Court being aggrieved by
the order dated 18.01.2024 in O.S.No.206/2023 on
I.A.No.1 whereby the prayer for temporary injunction was
rejected.
04. The plaintiff who happens to be a relative of the
defendants No.1 to 4 filed a suit for partition of suit
schedule A and B properties and consequential relief of
injunction against the defendant No.1. The defendants
No.5 and 6 had entered into a Joint Development
Agreement (for short 'JDA') with defendants No.1 to 4.
The suit scheduled properties are the non-agricultural land
bearing Sy.No.330/1 measuring 13 acres 20 guntas and
Sy.No.281/2 measuring 16 acres 24 guntas situated at
Chitaguppa village. The plaintiff contended that he and the
defendants No.1 to 4 are members of the Joint Hindu
Family and except the suit schedule properties other
family properties were divided on 15.05.1996. The suit
schedule A and B properties were held to be the joint
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family properties as per the judgment of this Court in
RFA.No.2588/2006 and RFA.No.2589/2006 dated
18.02.2014. Thereafter, in the year 2016 there was a
partition whereby the plaintiff and the defendant No.2
were entitled for ½ share each in the suit schedule
properties and a memorandum of partition was entered
into on 16.10.2022. It was alleged that the defendant
No.1 colluding with the defendant No.2 converted the suit
schedule property into non-agricultural use and entered
into JDA with defendants No.5 and 6. By virtue of
memorandum of partition deed dated 16.10.2022 the
defendants No.1, 3 and 4 had relinquished their rights
over the suit schedule A and B properties in favour of the
plaintiff and the defendant No.1 and 2. As such they have
½ shares each in them. In the memorandum of partition,
the specific boundaries of the share of the plaintiff and the
defendants were not demarcated. It is contended that the
defendants No.1, 3 and 4 in collusion with defendant No.2
entered into JDA with ulterior motive of depriving the
share of the plaintiff with defendants No.5 and 6.
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Therefore, it was contended that the defendants No.5 and
6 do not have any sort of rights in the suit schedule
properties. Now, they are trying to develop a layout in the
suit schedule properties to the detriment of the plaintiff.
Therefore, he sought for temporary injunction to restrain
the defendants No.5 and 6 from entering into the suit
schedule properties and to change the nature of the same.
05. On appearance, the defendants No.1 to 4 had
filed their written statement. They denied the oral partition
of the year 2016 and the memorandum of partition deed
dated 16.10.2022. They claimed that they have 1/4th
share in the suit schedule properties.
06. The defendants No.5 and 6 filed their written
statement denying the plaint averments and the
contentions of the plaintiff. They contended that the
defendants No.1 and 2 have entered into JDA with
defendants No.5 and 6, but however, the plaintiff did not
signed the JDA dated 12.02.2021 on the ground that he
was working in the judicial department and has to obtain
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the permission from his employers. It was contended that
the plaintiff along with defendants No.1, 5 and 6 had
performed the Bhoomi Pooja, at that time of starting
development work. As per the JDA they have started the
development and spent considerable amount in forming
the layout. On 29.11.2023, another JDA was executed for
the remaining portion of 10 acres 20 guntas of land in suit
schedule A property. Therefore, as per the two JDAs, a
total of 30 acres 20 guntas has to be developed into a
layout and the defendants No.5 and 6 are entitled for 33%
of the plots to be formed in the layout and the cost has to
be borne by the defendants No.5 and 6. It is contended
that when the plaintiff has stated that there was a oral
partition on 16.10.2022, he is barred from filing a suit for
partition. Therefore, the suit is not maintainable and as
such an application for temporary injunction also deserves
to be dismissed.
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07. After hearing the parties, the Trial Court has
dismissed the application answering the points raised by it
in the negative.
08. The learned counsel appearing for the plaintiff -
appellant contended that the plaintiff was not a party to
the JDA entered into by the defendants No.1 to 4 with
defendants No.5 and 6. He contended that though there
was a memorandum of partition, the shares of the plaintiff
and defendant No.2 were not demarcated, but the
relinquishment of the shares of the other defendants was
recorded in it. A provision was made for the defendant
No.1 for her livelihood, out of the income generated from
selling of the sites in suit schedule properties. Therefore,
he contends that when he was not a party to the JDA, the
defendants No.5 and 6 were not entitled to enter into the
suit schedule properties and develop the same to the
detriment of the plaintiff. It is submitted that the Trial
Court has not considered the rights of the plaintiff and as
such the rejection of I.A.No.1 is not proper.
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09. Per contra, the learned counsel for the
defendant No.6 contended that the plaintiff and the
defendants No.1 to 4 are colluding with each other with a
view to dupe the defendants No.5 and 6 by taking shelter
under not signing of the JDA by the plaintiff. It is
submitted that the plaintiff was well aware of the
transactions and the JDA with defendants No.5 and 6.
They had allowed the defendants No.5 and 6 to develop
the properties. It s contended that the plaintiff has
suppressed the material facts and he has approached the
Court as if he did not have any information of the JDA. In
fact it was the plaintiff who had negotiated the terms and
the manner in which the layout has to be developed.
Therefore, he has sought for dismissal of the appeal.
10. It is trite law that the consideration for a
temporary injunction is existence of prima-facie case,
balance of convenience and irreparable loss and injury that
may result if the injunction is denied. The Trial Court has
precisely framed these points for consideration. It is also
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essential that the grant of injunction is a discretionary
relief, the discretion can be exercised only if the plaintiff
approached to Court with clean hands. The hallmarks of
injunction are quite settled by umpteen number of judicial
pronouncements in this regard.
11. Evidently, plaint and affidavit filed in support of
the application do not refer to the knowledge of the
plaintiff regarding JDA. The plaintiff contends that the JDA
were entered into by defendants No.1 and 2 with the
defendants No.5 and 6 behind his back. This contention of
the plaintiff was not believed by the Trial Court as may be
found from the discussion in Para Nos.18 to 20 of the
impugned order. In Para Nos.17 and 18 of the impugned
order, the Trial Court has considered all the relevant
documents which were placed before it and also the
pleadings.
12. A perusal of the documents produced by both
the sides would reveal that the plaintiff had participated in
the Bhoomi Pooja, conducted while commencement of
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development of the land. The defendants No.5 and 6 have
also produced the copy of the e-mail and letter sent by the
plaintiff to defendant No.2, which was also marked to the
defendant No.6. In the said letter there is elaborate
reference to the discussion held with the government
authorities and the defendants No.5 and 6, who are
developers about the manner of implementation of the
agreement.
13. It is evident that the notice issued by the
plaintiff to the defendants dated 04.05.2022 unequivocally
mention that the defendants No.5 an 6 had already started
the civil work in the suit schedule properties under the
guise of unauthorized orders taken from the competent
authorities, without the consent of the plaintiff. Whereas
the affidavit filed in support of the application, before the
Trial Court shows that the defendants No.5 and 6 are to be
restrained from entering into the suit schedule properties
for any development work. It was stated that the plaintiff
was apprehending that the defendants No.5 and 6 may
enter the suit schedule properties.
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14. From the perusal of the above facts and
circumstances, the defendants No.5 and 6 entered into
JDA with defendants No.1 and 2 and the plaintiff had also
participated in the negotiations. It cannot be said that the
plaintiff was totally unaware of the JDA and the talks that
took place for the purpose of development of the layout.
Nothing prevented the plaintiff to disclose the same in the
plaint or in the affidavit. However, it is a fact that the
plaintiff was not the signatory to the JDA. The defendants
No.1 to 4 were also aware that the defendants No.5 and 6
were contracted for the development of the suit schedule
properties into a layout. Accordingly, the defendants No.5
and 6 were allowed to invest in the said project of forming
the layout. When the development activities were
proceeding, the present suit has been filed by taking
advantage of the fact that the plaintiff was not a signatory
to the JDA.
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15. Under these circumstances, the discretion
cannot be exercised in favour of the plaintiff, since he
himself had participated in the negotiations. Though, a suit
for partition was maintainable, that could not be put to
detriment of the interest of the defendants No.5 and 6,
who were made to believe that JDA was under consent of
plaintiff. The plaintiff and the defendants No.1 to 4 are at
liberty to settle their differences. Though, the plaintiff was
not a signatory to the JDA, it cannot be said that he was
unaware of the agreement and the delay in approaching
the Court for a relief deprives him of any discretion.
16. In that view of the matter, the denial of the
temporary injunction by the Trial Court cannot be found
fault with. The balance of convenience lies in allowing the
defendants No.5 and 6 to proceed with development work.
The plaintiff can very well be compensated in terms of the
money or the sites that would be formed in the layout in
the suit schedule properties.
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17. The defendants No.5 and 6 are at liberty to
carryout the development activities in the suit schedule
properties, but they may have to settle the claim of the
plaintiff, who was not a signatory to the agreement - JDA.
The question whether the defendants could alienate their
shares in the sites to be formed in the layout, is a matter
which is seized of the I.A.No.2 before the Trial Court.
18. Accordingly, the appeal is bereft of merits.
Hence, the following;
ORDER
I. The appeal dismissed.
II. The rejection of I.A.No.1 in O.S.No.206/2023
by an order dated 18.01.2024 is confirmed.
III. Whether the alienations either by the
defendants No.1 to 4 or by the defendants No.5
and 6 would result in multiplicity of the
proceedings, is to be considered by the Trial
Court while deciding I.A.No.2.
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IV. All interim applications in this appeal stand
disposed off.
Sd/-
JUDGE
KJJ
CT:PK.
