Karnataka High Court
Smt Chandrika D Reddy vs Smt Vinaya B N Reddy on 10 January, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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MFA No. 8799 of 2023
C/W MFA No. 8800 of 2023
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. 8799 OF 2023 (CPC)
C/W
MISCELLANEOUS FIRST APPEAL NO. 8800 OF 2023 (CPC)
IN MFA NO.8799 OF 2023:
BETWEEN:
1. SMT. CHANDRIKA D. REDDY
W/O LATE SRI H.K.DWARAKANATH REDDY,
AGED ABOUT 63 YEARS,
R/A NO.708-709, 'B' BLOCK,
KEERTHI SIGNATURE APARTMENTS,
ITPL MAIN ROAD, HOODI,
WHITEFIELD,
BANGALORE - 560048.
2. SMT. HARSHITHA DWARAK,
W/O K.V. KARTHIK REDDY,
Digitally signed
by SHARANYA T D/O LATE SRI H.K.DWARAKANATH REDDY
Location: HIGH AGED ABOUT 38 YEARS,
COURT OF R/AT NO.703, 'B' BLOCK,
KARNATAKA
KEERTHI SIGNATURE APARTMENTS,
ITPL MAIN ROAD, HOODI,
WHITEFIELD,
BANGALORE - 560048.
...APPELLANTS
(BY SRI. UDAYA HOLLA, SENIOR COUNSEL FOR
SRI VIVEK HOLLA, ADVOCATE)
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MFA No. 8799 of 2023
C/W MFA No. 8800 of 2023
AND:
1. SMT. VINAYA B.N. REDDY
W/O SANTOSH BALASUBRAMANYA,
D/O NARAYANA REDDY B.A.
AGED ABOUT 32 YEARS
2. SANTOSH BALASUBRAMANYA
S/O BALASUBRAMANYA,
AGED ABOUT 38 YEARS
BOTH R/AT NO.422,
5TH CROSS, 3RD 'B' MAIN ROAD,
3RD BLOCK, KALYAN NAGAR,
BANGALORE - 560043
...RESPONDENTS
(BY SRI. Y.R.SADASHIVA REDDY, SENIOR COUNSEL FOR
SRI RAHUL S. REDDY, ADVOCATE C/R1 & R2)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 19.12.2023 PASSED ON I.A. NO.1
IN O.S.NO.5881/2023 ON THE FILE OF THE XVI ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-12),
DISMISSING THE I.A. NO.1 FILED UNDER ORDER XXXIX RULE
1 AND 2 READ WITH SECTION 151 OF CPC.
IN MFA NO.8800 OF 2023:
BETWEEN:
1. SMT. CHANDRIKA D. REDDY
W/O LATE SRI H.K.DWARAKANATH REDDY,
AGED ABOUT 63 YEARS,
R/A NO.708-709, 'B' BLOCK,
KEERTHI SIGNATURE APARTMENTS,
ITPL MAIN ROAD, HOODI,
WHITEFIELD,
BANGALORE - 560048.
2. SMT. HARSHITHA DWARAK,
W/O K.V. KARTHIK REDDY,
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MFA No. 8799 of 2023
C/W MFA No. 8800 of 2023
D/O LATE SRI H.K.DWARAKANATH REDDY
AGED ABOUT 38 YEARS,
R/AT NO.703, 'B' BLOCK,
KEERTHI SIGNATURE APARTMENTS,
ITPL MAIN ROAD, HOODI,
WHITEFIELD,
BANGALORE - 560048.
...APPELLANTS
(BY SRI. UDAYA HOLLA, SENIOR COUNSEL FOR
SRI VIVEK HOLLA, ADVOCATE)
AND:
1. SMT. VINAYA B.N. REDDY
W/O SANTOSH BALASUBRAMANYA,
D/O NARAYANA REDDY B.A.
AGED ABOUT 32 YEARS
2. SANTOSH BALASUBRAMANYA
S/O BALASUBRAMANYA,
AGED ABOUT 38 YEARS
BOTH R/AT NO.422,
5TH CROSS, 3RD 'B' MAIN ROAD,
3RD BLOCK, KALYAN NAGAR,
BANGALORE - 560043
...RESPONDENTS
(BY SRI. Y.R.SADASHIVA REDDY, SENIOR COUNSEL FOR
SRI RAHUL S. REDDY, ADVOCATE C/R1 & R2)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 19.12.2023 PASSED ON I.A. NO.2
IN O.S.NO.5881/2023 ON THE FILE OF THE XVI ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-12),
DISMISSING THE I.A. NO.2 FILED UNDER ORDER XXXIX RULE
1 AND 2 READ WITH SECTION 151 OF CPC.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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MFA No. 8799 of 2023
C/W MFA No. 8800 of 2023
JUDGMENT
Heard the learned counsel for the appellants and learned
counsel for the respondents.
2. These two appeals are filed challenging the
impugned order of rejection dated 19.12.2023 passed on
I.A.Nos.1 and 2 filed under Order 39, Rule 1 and 2 of C.P.C. in
O.S.No.5881/2023 on the file of XVI Additional City Civil and
Sessions Judge (CCH-12) at Bengaluru.
3. The factual matrix of the case of the plaintiffs
before the Trial Court while seeking the relief of declaration and
mandatory injunction is that suit schedule property is allotted in
favour of the plaintiffs in terms of the partition which took place
among the members of the family and defendant Nos.1 and 2
started construction encroaching the property of the plaintiffs.
Hence, they filed I.A.No.1 inter-alia seeking an order of
temporary injunction restraining the defendants, their men,
agents or anyone claiming through them or under them from
putting up further constructions in the suit schedule 'C'
property during the pendency of the suit and I.A.No.2 is filed
seeking to grant an ad-interim order of temporary injunction
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restraining the defendants from encumbering the suit schedule
'C' property during the pendency of the suit.
4. The Trial Court, having considered the averments of
the plaint, granted an ex-parte interim order in favour of the
plaintiffs and issued summons to the defendants. Thereafter,
the defendant Nos.1 and 2 appeared and filed their written
statement and objections to the applications in I.A.Nos.1 and 2.
5. The defendant Nos.1 and 2 in the written statement
denied the claim made by the plaintiffs to the extent of 20.1
guntas and contended that description of the property given in
the schedule is not correct and the same is not in terms of the
partition between the members of the family. It is also
contended that Smt. H.K. Chanchala Devi, the mother of the
defendant No.1, in turn executed a registered gift deed dated
30.09.2022 in respect of her share measuring 6.17 guntas in
Sy.No.174/1A and since the date of the said gift deed, she has
been in peaceful possession and enjoyment of the same and
she has started construction of residential houses in the said
property and the construction is nearing completion and one of
the family members have obstructed or disputed the possession
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of the defendant No.1 or the construction. Now, all of a
sudden, the plaintiffs have filed the above suit and making false
allegation knowing fully well that since the date of partition
deed dated 30.08.2000, all the family members are in
possession of their respective shares. It is contended that after
lapse of 23 years, the plaintiffs have filed the above suit for a
wrongful gain. The plaintiffs have produced some documents
of conversion and revenue documents which are created
documents and no notice of survey was given to any of the
sharers including the defendant No.1 while phoding the lands of
the defendants.
6. The Trial Court, having taken note of the pleadings
of the plaintiffs as well as the defendants in respect of the
interlocutory applications filed, formulated the points whether
the plaintiffs have made out a prima facie case in I.A.Nos.1 and
2, whether balance of convenience lies in favour of the plaintiffs
in I.A.Nos.1 and 2 and whether the plaintiffs prove that if the
temporary injunction is not granted, they will be put to
irreparable injury and loss than the defendants.
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7. The Trial Court, having considered the pleadings as
well as the documents, comes to the conclusion that the
documents which have been produced along with the plaint are
not in consonance with the pleadings which have been pleaded
in the plaint and comes to the conclusion that, on perusal of the
schedule mentioned in the pleadings and the documents, there
is a difference in the extent of property and the matter requires
trial.
8. Being aggrieved by the order passed by the Trial
Court on I.A.Nos.1 and 2, learned counsel appearing for the
appellants would vehemently contend that there is no dispute
with regard to the partition between the parties in respect of
the property bearing Sy.No.174/1A. The counsel would
vehemently contend that in terms of the said partition, an
extent of 10,559.79 sq.ft. is allotted in favour of the plaintiffs
and 6,727.50 sq.ft. is allotted in favour of
Smt. H.K. Chanchala Devi. The counsel also would submit that
subsequent to partition, the property is phoded and the
property belonging to the plaintiffs is Sy.No.174/5 and the
property which is allotted in favour of the mother of the first
respondent is Sy.No.174/6 and brought to notice of this Court
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RTC as well as conversion order dated 28.04.2023. The counsel
further submits that the respondents started construction
without any plan and hence, notice was also issued by BBMP
and an order is also passed. The counsel would submit that
phodi is confirmed by the letter addressed by the mother of the
first respondent and the Trial Court committed an error in
rejecting the applications and brought to notice of this Court
Para Nos.13 to 15 of the Trial Court, wherein an observation is
made by the Trial Court that the suit schedule property is not
included in the partition and the observation made by the Trial
Court in Para No.12 is erroneous. The counsel also brought to
notice of this Court Para No.13 of the Trial Court, wherein it is
observed that an error is made that nowhere there is a mention
about Sy.No.174/6 of Hoodi Village. The counsel would submit
that Sy.No.174/6 is assigned only after the phodi and
vehemently contend that the Trial Court while considering the
material on record in Para Nos.14 and 15, committed an error
in observing that comparing the property with the document of
partition deed, item No.6 allotted to H.K. Dwarakanath Reddy
in 'C' schedule is coming in Sy.No.174/1A. The very approach
of the Trial Court is erroneous and committed an error in not
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considering the very documentary evidence which have been
placed before the Court. Hence, it requires interference.
9. Per contra, learned counsel appearing for the
respondents in his argument would vehemently contend that
there is no dispute with regard to the partition. The counsel
also brought to notice of this Court the description given in the
schedule of the plaint which does not tally with the extent of
property allotted in favour of the plaintiffs in the partition and
included 20.1 guntas of land and no such land to the extent of
20.1 guntas was allotted in favour of the plaintiffs. The counsel
also would vehemently contend that phodi was done at the
instance of all the members of the family and the same is
confirmed by the plaintiffs and the matter is yet to be finalized
and against the said order of phodi, one of the family member
namely, Sri H.K. Venugopala Reddy filed an appeal and the said
appeal is also pending. The counsel would further submit that
no right is given under the partition to the appellants in respect
of an area for which the injunction is sought by the appellants
and hence, they cannot seek the relief in respect of more
extent of the property which was not allotted to the plaintiffs.
The counsel also brought to notice of this Court Para No.16 of
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the order of the Trial Court, wherein the Trial Court has taken
note of the said fact and rightly comes to the conclusion that on
perusal of the schedule mentioned in the pleading and the
documents, there is difference in the extent of the properties
and also made an observation that the said contention of the
defendants needs trial. The Trial Court also taken note of
balance of convenience in Para Nos.17 and 18 and discussed in
detail with regard to the same and rightly rejected the
applications.
10. Learned counsel appearing for the appellants in
support of his contention, relied upon the judgment of the
Madras High Court in VADIVEL MUDALIAR AND ANOTHER
VS. PACHIANNA GOUNDER reported in AIR 1974 MADRAS
87 and relied upon Para Nos.9, 10 and 12, wherein it is held
that while granting or refusing temporary injunction, if there is
no discussion of documents, but mere reference to them and
passing an order without considering the affidavit filed, such
order is revisable.
11. The counsel also relied upon the judgment of this
Court in VIRUPAXAPPA VS. REVANAPPA SIDDAPPA
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GANIGAR & OTHERS reported in 1975 (2) KAR. L.J. 96,
wherein it is observed that the order in question does not at all
indicate that the learned Judge had applied his mind to such
allegations contained in the affidavit filed in support of the
application.
12. The counsel also relied upon the judgment of the
Apex Court in ANAND PRASAD AGARWALLA VS.
TARKERSHWAR PRASAD AND OTHERS reported in (2001)
5 SCC 568 with regard to invoking Order 39, Rule 1 and 2 of
C.P.C. while granting temporary injunction and brought to
notice of this Court Para No.6, wherein it is held that when the
contesting respondents were in possession as evidenced by the
record of rights, it cannot be said that such possession is by a
trespasser.
13. The learned counsel for the appellants referring the
list of citations would contend that while granting the relief of
temporary injunction, the Court has to consider the prima facie
case and when the right is given to the plaintiffs under the
partition, the Trial Court ought to have considered the
applications in a proper perspective.
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14. Having heard the learned counsel for the appellants
and the learned counsel for the respondents and considering
the material available on record i.e., the pleadings of the
parties as well as the documents, the points that would arise
for consideration of this Court are:
(1) Whether the Trial Court committed an error
in dismissing the application in I.A.No.1 filed
under Order 39, Rule 1 and 2 of C.P.C. in not
granting the relief as sought in the said
application?
(2) Whether the Trial Court committed an error
in dismissing the application in I.A.No.2 filed
under Order 39, Rule 1 and 2 of C.P.C.?
(3) What order?
Point Nos.(1) and (2)
15. Having heard the respective counsels, though the
impugned order passed on I.A.No.2 is challenged before this
Court in the appeal in M.F.A.No.8800/2023 on the ground that
the Trial Court has not discussed anything about I.A.No.2 with
regard to restraining the defendants from alienating the suit
schedule property, the learned counsel appearing for the
respondents undertakes before this Court that they will not
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alienate the suit schedule property and the said undertaking
given before this Court is noted. Hence, the question of
considering the appeal in M.F.A.No.8800/2023 challenging the
impugned order passed on I.A.No.2 does not arise.
16. Now, coming to the other appeal in
M.F.A.No.8799/2023, the main contention of the learned
counsel for the appellants is that there is a partition and
subsequently, the property is phoded and the land is also
converted in terms of the order dated 28.04.2023. It is the
contention of the appellants that the defendants Nos.1 and 2
have taken up construction without plan and notice was also
issued by the BBMP and as against the construction is
concerned, already separate proceeding is initiated by the
BBMP and the same is challenged by the respondents in a writ
petition, wherein a direction was given and the said petition is
under consideration.
17. With regard to the contention of the plaintiffs is
concerned, it is the claim of the plaintiffs that the suit schedule
property is allotted in favour of the plaintiffs in terms of the
partition and there is no dispute with regard to the partition
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among the family members. No doubt, it is clear that from the
partition, to the extent of 10,559.79 is allotted in favour of the
plaintiffs and 6,727.50 sq.ft. is allotted in favour of the mother
of the first respondent. The defendants claim right in respect
of the property which was allotted in favour of their mother
Smt. H.K. Chanchala Devi based on the gift deed and they have
taken up construction based on the same. The respondents
dispute with regard to the phodi work is concerned contending
that no notice was issued and there is a record with regard to
the share allotted in Sy.Nos.174/5 and 174/6 in respect of the
plaintiffs and the defendants. Though the learned counsel for
the respondents would contend that an appeal is filed, the
same is filed recently. The main contention of the learned
counsel appearing for the appellants is that the Trial Court
came to a wrong conclusion in Para Nos.12 to 14 of the order
that the suit schedule property is not included in the partition.
No doubt, the said observation is not correct, the document of
partition is very clear to the extent of 10,559.79 sq.ft. which is
allotted in favour of the plaintiff.
18. Learned counsel appearing for the respondents also
brought to notice of this Court, when the suit is filed for the
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relief of declaration and mandatory injunction and the schedule
is shown to the extent of 20.1 guntas, the plaintiffs have not
restricted the relief in respect of the property which was
allotted in terms of the partition of the year 2000. But, learned
counsel appearing for the appellants made an attempt to
convince this Court that in the southern boundary, it is also
mentioned as plus corporate land. However, the said contention
cannot be accepted and the same is not included in the
measurement and only for the purpose of identity of the
property, it is mentioned in southern boundary as plus
corporate land.
19. It is also important to note that, when the suit is
filed seeking the relief of declaration, mandatory injunction and
temporary injunction, the plaintiffs have to approach the Court
with clean hands and the very description mentioned in the
schedule 'A' property is not correct and no doubt, learned
counsel appearing for the appellants brought to notice of this
Court that relief is sought in respect of schedule 'C' property to
the extent of 3,939 sq.ft., but when the claim is made to the
extent of 20.1 guntas of land instead of 10,559.79 sq.ft. which
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was allotted under the partition, the very approach of the
plaintiffs is erroneous. The Trial Court also taken note of the
pleadings as well as the documents which have been relied
upon by both the parties. No doubt, there are factual error
committed by the Trial Court observing with regard to the
inclusion of the property in Para Nos.12 to 14 of the order, but
in Para No.16, the Trial Court rightly comes to the conclusion
that, on perusal of the pleadings as well as the documents, the
same not tallies with the documents which have been
produced. Hence, rejected the claim of the plaintiffs that the
same not tallies. Learned counsel for the respondents also took
a specific defence with regard to the description is concerned
and the Trial Court has made an observation with regard to the
said aspect that it is a matter of trial.
20. Having considered the reasons assigned by the Trial
Court and considering the plaint, written statement as well as
the contentions of the respective parties, when there is a
dispute with regard to the area is concerned, when the plaintiffs
are claiming the relief in respect of 20.1 guntas of land as
mentioned in the plaint, there must be some documents to that
effect and the same is not found in the material available on
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record and when there is no prima facie material as to the
extent what the plaintiffs are claiming, I do not find any error
committed by the Trial Court in rejecting the application in
I.A.No.1 and unless the case of the plaintiffs is very clear with
regard to the extent of area mentioned in the plaint and
relevant documents placed before the Court, the question of
granting an order of temporary injunction without any prima
facie material does not arise. Hence, the Trial Court has not
committed any error in dismissing the applications in I.A.Nos.1
and 2. Accordingly, I answer point Nos.(1) and (2) in the
'affirmative'. Further, in view of the undertaking given by the
respondents, the impugned order passed on I.A.No.2/2022 is
not dealt with on merits.
Point No.(3)
21. In view of the discussion made above, I pass the
following:
ORDER
(i) The appeal in M.F.A.No.8799/2023 is
dismissed and the appeal in
M.F.A.No.8800/2023 is allowed in part, in
view of the undertaking given by the
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respondents that they will not alienate the
suit schedule property, till the disposal of the
suit.
Sd/-
JUDGE
ST
