Karnataka High Court
Shri. D Jaganath vs Shri. S S Swamy on 10 January, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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MFA No. 8165 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 8165 OF 2022 (CPC)
BETWEEN:
1. SHRI. D. JAGANATH
S/O LATE N.DYAVAPPA
AGED ABOUT 66 YEARS
R/AT NO.598,
OPP. KUPPAREDDY LAKE,
KANAKAPURA MAIN ROAD,
BENGALURU SOUTH TALUK,
BENGALURU 560062.
...APPELLANT
(BY SRI. V.B. SHIVA KUMAR., ADVOCATE)
AND:
1. SHRI. S.S.SWAMY
Digitally signed S/O LATE SHIVALINGE GOWDA
by SHARANYA T AGED ABOUT 45 YEARS
Location: HIGH
COURT OF
KARNATAKA 2. SMT. VARALAKSHMI.S.R
W/O S S SWAMY
AGED ABOUT 28 YEARS,
3. MASTER AKSHYAGOWDA.S.S
S/O S.S.SWAMY
AGED ABOUT 10 YEARS
4. KUM. MANVI S.S.
S/O S.S.SWAMY
AGED ABOUT 8 YEARS
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MFA No. 8165 of 2022
BOTH RESPONDENTS 3 AND 4 ARE MINORS,
REPRESEBTED BY THEIR NATURAL GUARDIAN
AND MOTHER SMT. VARALAKSMI-RESPONDENT NO.2
ALL ARE R/AT POST OFFICE ROAD
SATHANUR VILLAGE AND POST
KANAKAPURA TALUK
RAMANAGARA DSITRICT 562126
5. SMT. NAGAMMA
W/O LATE SHIVALINGE GOWDA
AGED ABOUT 68 YEARS,
R/AT POST OFFICE ROAD
SATHANUR VILLAGE AND POST
KANAKAPURA TALUK
RAMANAGARA DSITRICT 562126
6. SMT.NAGAMANI
D/O LATE SHIVALINGE GOWDA
W/O SHIVARAJU
AGED ABOUT 48 YEARS
RA/T KOTAGALE VILLAGE,
KODIHALLI HOBLI,
KANAKAPURA TALUK,
RAMANAGARA DISTRICT- 562119
7. SMT.MAMATHA
D/O LATE SHIVALINGE GOWDA
W/O ARUN KUMAR K
AGED ABOUT 42 YEARS
R/AT UJJANAHALLI VILLAGE
VIRUPAKSHPURA HOBLI
CHANAPATNA TALUK
RAMANAGARA DISTRICT-562138
8. SRI K.ARUN KUMAR
D/O LATE KALIREGOWDA
AGED ABOUT 45 YEARS
R/AT UJJANAHALLI VILLAGE
VIRUPAKSHPURA HOBLI
CHANNAPATNA TALUK
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MFA No. 8165 of 2022
RAMANAGARA DISTRICT 562138
...RESPONDENTS
(BY SRI. LINGARAJU B.L., ADVOCATE FOR R1
R3 AND R4 ARE MINOR REP. BY R2
R2 AND R6 SERVED AND UNREPRESENTED
SRI.NAGARAJA, ADVOCATE FOR R5, R7 AND R8 )
THIS MFA IS FILED U/O.43 RULE 1(r) OF CPC, AGAINST
THE ORDER DT.15.11.2022 PASSED ON I.A.NO.2 IN
O.S.NO.478/2022 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND JMFC, KANAKAPURA, ALLOWING I.A.NO.2 FILED U/O.39
RULE 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 appellant and the
learned counsel for the respondents.
2. This appeal is filed challenging the interim order
granted by the Trial Court on I.A.No.2 wherein prayed the
Court to restrain the defendant No.5 from alienating or
creating encumbrance over item No.2 of the suit schedule
property till the disposal of the suit.
3. The factual matrix of case of the plaintiffs
before the Trial Court that suit schedule properties are
joint family properties and the 1st plaintiff who is the son
of late Shivalingegowda was addicted to bad vices. The
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sale is made in favour of defendant No.4 along with his
wife who is the plaintiff No.2. The sale is also made in
favour of defendant No.4 excluding other legal heirs of
Shivalingegowda and also fraudulently obtained the sale
deed in favour of defendant No.4 who is none other than
the son-in-law of the said Shivalingegowda. The defendant
No.4 also inturn sold the property in favour of defendant
No.5. It is also contended that the defendant No.4
admitted plaintiff No.1 to de-addiction centre for treatment
and he was discharged on April-May 2019 . The plaintiffs
have also pleaded that there was little improvement in
behaviour of plaintiff No.1, but not completely cured from
the said bad vices. It is also contended that he was
admitted to Shree Foundation, Kengeri, Bengaluru on
21.07.2020. During 1st week of January-2021 family
members came to Shree Foundation and asked authority
to discharge plaintiff No.1 from the center. The plaintiff
No.1 was discharged on 02.01.2021. The defendant No.4
took plaintiff No.1 to his house and stated that there is
necessity of correcting records of rights. Accordingly,
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defendant No.4 took plaintiff Nos.1 and 2 and other family
members to government office and took signature on
some printed sheets without revealing its contents.
4. It is alleged that fraud has been committed and
obtained the sale deed within a span of three months
executed the sale deed in favour of defendant No.4 on
11.03.2022 and the defendant No.4 executed the sale
deed in favour of defendant No.5. Hence, fraud has been
played in obtaining the document. Hence, sought for the
relief of partition as well as cancellation of both the sale
deeds executed in favour of defendant Nos.4 and 5. The
main relief sought was decree for partition and separate
possession of plaintiff's 1/4th share in the suit schedule
property. Inter alia sought for temporary injunction to
restrain the defendant No.5 in alienating or creating any
right in respect of item No.2 of the suit schedule property
which is the subject matter of the sale in favour of
defendant No.4 and inturn in favour of defendant No.5.
5. The said application is resisted by the defendant
No.5 by filing written statement contending that the very
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averments made in the plaint is not correct and defendant
No.5 not aware of relationship of plaintiffs and defendants.
There is no necessity to know the relationship of plaintiffs
and defendants. The defendant No.5 contended that the
plaintiffs and defendant Nos.1 and 3 are concerned to him
and denied the entire averments made in the plaint. The
defendant No.4 intent to sell the property of item No.2 and
he has verified the records of defendant No.4 and
purchased the same from the defendant No.4, since
plaintiff Nos.1 & 2 and defendant Nos.1 & 3 have executed
registered sale agreement in favour of defendant No.4 on
28.01.2021 in terms of the sale agreement, entire sale
consideration was paid i.e., Rs.16,50,000/-, later
registered sale deed was executed in favour of defendant
No.4 on 11.03.2022 and handed over the possession of
item No.2 of suit schedule property in favour of defendant
No.5. The defendant No.4 after verification only purchased
the property from defendant No.4 by virtue of the sale
deed, defendant No.5 became the absolute owner and
possession of item No.2 of suit schedule property. The
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Plaintiff and defendant Nos.1 to 4 colluded together and
filed the false case suppressing the true facts. Hence,
question of granting any interim relief as sought in the
appeal does not arise.
6. The Trial Court having considered the pleadings
of the parties particularly taking into note of plaintiff No.1
was addicted to alcohol and he was not in a position to
take any appropriate decision independently and also
considering the documents which have been placed before
the Court that he was admitted to de-addiction centre for
treatment and specific averments are made that taking
undue advantage of the fact that plaintiff No.1 is not
mentally fit, defendant No.4 got executed sale deed
without paying any sale consideration amount which is
also pleaded in the plaint. The Trial Court taking into note
of the very pleading of the plaintiffs and the defendants
comes to the conclusion that the pleadings establish that
trial is necessary for the Court to decide whether there is
misrepresentation of facts in executing agreement of sale
and sale deed in favour of defendant No.4 and the trial is
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necessary to determine the question whether defendant
No.5 is a bona fide purchaser. Hence, the trial Court
opined that there exists prima facie case and allowed the
application.
7. Learned counsel for the appellant would
vehemently contend that when the plaintiffs are parties to
the sale deed while executing the sale deed in favour of
defendant. No.4 along with defendant Nos.1 and 3, they
cannot seek relief for partition claiming 1/4th share. He
further contends that when defendant No.5, who is the
appellant herein had purchased the property on
verification of the documents, he is a bona fide purchaser
and he cannot be restrained from alienating the property.
He would also vehemently contend that the property is a
self-acquired property and however, prima facie they have
not placed any material to show that the property in
question is the joint family property. The Trial Court
committed an error in coming to the conclusion that sale
of properties by some of the parties creating third party
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rights belongs to the family and also specific averment is
made in the plaint that there is misrepresentation of facts
in executing agreement of sale and sale deed in favour of
defendant No.4. The said conclusion is erroneous and
there is no prima facie case and the Trial Court ought not
to have granted the relief of temporary injunction and
hence, it requires interference.
8. Per contra, learned counsel for the respondents
would submit that defendant. No.4 is none other than the
son-in-law of defendant No.1 and husband of defendant
No.3. Learned counsel also vehemently contend that in
order to prove the fact that plaintiff No.1 is addicted to
bad vices and he was admitted to de-addiction centre,
the parties placed the documents before the Court. He
would also submit that defendant No.4, who got executed
the sale deed himself admitted plaintiff No.1 to the
hospital and discharged him from hospital, who took
treatment from 2019 to 2021 and the same is also
pleaded in the plaint itself. However, it is required to be
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proved that whether plaintiff No.1 is addicted to bad vices
or not. Hence, the Trial Court has rightly come to the
conclusion that the matter requires trial with regard to the
pleadings i.e., fraudulent transaction. Hence, it does not
require any interference.
9. The main contention of the learned counsel for
the appellant is that the appellant is the bona fide
purchaser and he had purchased the property by paying
sale consideration in favour of defendant No.4. There is no
dispute with regard to the fact that there was a sale in
favour of defendant No.4 and in turn, the sale was made
in favour of defendant No.5 i.e., the appellant herein.
10. The main contention of the plaintiffs before the
trial Court while seeking the relief of partition is that they
are the parties to the sale deed and contend that plaintiff
No.1 was addicted to bad vices. It is also important to
note that plaintiff No.2 is the wife of plaintiff No.1 and in
order to prove the fact that the property exclusively
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belongs to the plaintiffs and that they are the owners of
the property, no document was placed before the Court.
11. Though the appellant contends that this is the
self acquired property of the executants of the sale deed,
no document was placed before the trial Court by the
appellant also. It is also evident from the record that the
wife and one of the daughter of said Shivalinge Gowda
joined along with plaintiff No.1, who is none other than the
son of Shivalinge Gowda and plaintiff No.2, in executing
the sale deed and the wife of plaintiff No.1 also joined in
executing the sale deed i.e., plaintiff No.2. It is also
important to note that the sale is made in favour of
defendant No.4, who is admittedly husband of defendant
No.3. The records are also placed before the Court to show
that plaintiff No.1, who is the son of Shivalinge Gowda,
was addicted to bad vices and defendant No.4 himself has
got discharged plaintiff No.1 from de-addiction centre. It is
specifically alleged that while obtaining signatures of the
parties, they were taken to the Registrar Office stating
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that their signatures are required to execute the
document. It is also important to note that within a span
of three months of execution of sale deed in favour of
defendant No.4, the sale deed was executed in favour of
defendant No.5, who is the appellant herein.
12. Having considered all these material on record
and when there was a sale in favour of son-in-law of
defendant No.1 at the first instance and thereafter, the
sale was made in favour of defendant No.5 within three
months and having considered the pleadings of all the
legal heirs of the said Shivalinge Gowda, one of the other
daughter is not a party to the sale deed and when the trial
Court comes to the conclusion that the matter requires
trial with regard to the pleadings of the parties and trial is
necessary to decide whether misrepresentation in
executing the agreement of sale and sale deed executed
by plaintiff No.1, defendant Nos.1 and 3 in favour of
defendant No.4 and whether defendant No.5 is the bona
fide purchaser or not and necessary issue also has to be
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framed by the Trial Court that whether the
appellant/defendant No.5 is the bona fide purchaser or
not. Hence, I do not find any error committed by the trial
Court in granting the relief of temporary injunction
restraining the appellant from creating any third party
right in respect of item No.2 or otherwise it leads to
multiplicity of proceedings.
13. Unless the document is placed before the Court
in respect of sale made in favour of the appellant,
particularly in respect of item No.2 of the property, is
exclusively self acquired property of plaintiff No.1,
defendant Nos.1 and 2, I do not find any ground to
interfere with the findings of the trial Court.
14. In view of the discussion made above, I pass
the following:
ORDER
i) The appeal is dismissed.
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ii) The trial Court is directed to dispose of
the matter within a period of nine months
from today.
Sd/-
JUDGE
RHS, VM
