Karnataka High Court
Sri N Chandrashekaraiah vs Sri B Shivanandaiah on 13 November, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:46011
MFA No. 6959 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 6959 OF 2023 (CPC)
BETWEEN:
1. SRI N. CHANDRASHEKARAIAH
S/O LATE NANJUNDAIAH
AGED ABOUT 81 YEARS,
RESIDING AT VILLA NO.181,
ADARSHA VISTA,
NEAR PETROL BUNK
VIGNAN NAGAR
BENGALURU-560 037.
...APPELLANT
(BY SRI. FAYAZ SAB B.G., ADVOCATE)
AND:
1. SRI B. SHIVANANDAIAH
Digitally signed
S/O LATE N. BASAVARAJAIAH
by DEVIKA M AGED ABOUT 61 YEARS,
Location: HIGH RESIDING AT GULIMANGALA VILLAGE,
COURT OF HUSKUR MAIN ROAD,
KARNATAKA HUSKUR POST
BENGALURU-560 099.
...RESPONDENT
(BY SRI. CHETAN N., ADVOCATE FOR C/R)
THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CPC,
AGAINST THE ORDER DATED 02.09.2023 PASSED ON IA NO.1
IN O.S.NO.6955/2022 ON THE FILE OF THE XV ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU, (CCH NO.3),
DISMISSING IA NO.1 FILED U/O.39 RULES 1 AND 2 R/W
SEC.151 OF CPC.
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NC: 2024:KHC:46011
MFA No. 6959 of 2023
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL JUDGMENT
Heard the learned counsel for the appellant and learned
counsel for the respondent.
2. The Trial Court rejected the application filed under
Order 39 Rule 1 and 2 CPC, wherein prayer is sought
restraining the defendant from interfering with peaceful
possession and enjoyment of the suit schedule property.
3. The main contention of the learned counsel for the
appellant is that he is the absolute owner of the suit schedule
property which is morefully described in the schedule and the
same is allotted vide partition deed dated 19.08.2006 and the
defendant is interfering with possession of the property.
4. The defendant appeared and filed the written
statement and admitted the partition deed dated 19.08.2006.
But, contention was taken by the defendant that plaintiff
executed registered release deed in favour of his father i.e.,
brother of the plaintiff and deceased in respect of the property.
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The defendant also took the contention that his father was in
possession and enjoyment of property released by the plaintiff
and after the death of his father, he is in possession and
enjoyment of the suit schedule property and that plaintiff has
no right over the said property. It is also contended that
plaintiff in the partition deed dated 19.08.2006 without his
consent and without mentioning the release deed entered the
suit schedule property in the partition deed. It is also further
contended that plaintiff has falsely stated that the defendant
has created story and filed O.S.No.2979/2019 against him and
sought decree against him. Hence, prayed the Court to dismiss
the application.
5. The Trial Court having considered the pleadings of
the parties, framed the points for consideration for grant of
temporary injunction and answered point Nos.1 to 3 as
'negative' and dismissed the application, in coming to the
conclusion in paragraph No.9 of the order that the property
claimed by defendant in O.S.No.2979/2019 and property
claimed by plaintiff in present case are two different properties
and also taken note of the schedule mentioned in the plaint and
also claim is based on the partition deed dated 19.08.2006.
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The Trial Court also made an observation that defendant has
not produced deed of partition and also taken note of the fact
that whether the claim made by plaintiff over the suit schedule
property is in consonance with or depict in the partition deed.
But, made an erroneous observation that description given in
the plaint and the partition deed are different. The Trial Court
also observed that there was decree against the plaintiff in
O.S.No.2979/2019 and the same was not challenged. Hence,
rejected the application on the ground that the plaintiff has not
made out any prima facie case. Being aggrieved by the
dismissal of the application, the present appeal is filed before
this Court.
6. Learned counsel for the appellant would vehemently
contend that there was a family partition vide registered
document of partition deed dated 19.08.2006. In pursuance of
the said document, even revenue records were changed in the
name of the plaintiff. Learned counsel also brought to notice of
this Court item No.4 of the schedule which was allotted in
favour of the plaintiff in terms of the partition deed. It is
contended that suit is filed for the relief of said item No.4 and
the description of the property given in the plaint as well as the
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application is item No.4 of the partition deed. Learned counsel
would vehemently contend that Trial Court comes to erroneous
conclusion that the decree granted in favour of the defendant
has not been challenged in O.S.No.2979/2019. Learned counsel
would submit that the plaintiff is not having any right in respect
of schedule mentioned in O.S.No.2979/2019. Learned counsel
also brought to notice of this Court schedule 'B' mentioned in
the partition deed and the same is in respect of item No.1 of
the property mentioned in schedule 'B' and the plaintiff is not
claiming right in respect of schedule 'B', particularly in respect
of the said suit. When such being the case, there is no need to
challenge the said decree passed against the plaintiff.
7. Learned counsel for the respondent would
vehemently contend that the Trial Court having taken note of
the discrepancy mentioned in the schedule, particularly in
paragraph No.9 of the order comes to the conclusion that
already appellant has suffered the decree in O.S.No.2979/2019
and it cannot be challenged and dismissed the same, in coming
to the conclusion that the plaintiff has not made out any prima
face case and balance of convenience.
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8. Having heard learned counsel for the appellant and
learned counsel for the respondent, both the appellant and
respondent not dispute the partition deed which is registered
on 19.08.2006. The very claim of the plaintiff is that he has
got right in respect of the property i.e., item No.4 of schedule
'A' and suit is also filed in respect of item No.4 of the schedule
which is mentioned in partition deed. Having perused the
description of the property mentioned in the partition deed,
plaint as well as the application, all are one and the same and
the observation made by the Trial Court in paragraph No.9 of
the order is contrary to the schedule to the plaint as well as the
partition deed. The Trial Court failed to take note of said fact
into consideration, but instead taken note of the boundaries
mentioned and it is an erroneous approach by the Trial Court in
O.S.No.2979/2019.
9. Having perused the description of the property in
O.S.No.2979/2019, the same is also in respect of khatha
Nos.16/3 and 39/15 and the measurement is same in item
No.1 of schedule 'B' property which is morefully allotted in
favour of the defendant. As rightly pointed out by the learned
counsel for the appellant, the plaintiff is not claiming any right
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in respect of item No.1 of the property which is morefully
described in schedule 'B' of the partition deed. When such
being the case, even though plaintiff has suffered decree in the
said suit, the same is in respect of item No.1 of the schedule 'B'
of the property and the appellant is not claiming any right in
respect of the said property. When such being the case, the
Trial Court ought not to have made such observation and the
very approach of the Trial Court that plaintiff is claiming the
relief of injunction in respect of property allotted in his favour in
the partition deed which was registered on 19.08.2006 and the
same is not disputed by the defendant. However, defendant in
the written statement contended that, even prior to the
registration of the partition deed, there was a release deed in
favour of the father i.e., the brother of the plaintiff and
released the property. In order to substantiate the said
contention also, no document is placed before the Court and
the Trial Court has not given reasons while passing the order,
but rejected the application on the ground that release deed is
disputed by the defendant and nothing is discussed in the order
with regard to the release deed is concerned.
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10. In the absence of any such material, the question of
accepting the contention of the defendant also does not arise
and the Trial Court failed to take note of very pleading and
schedule mentioned in the plaint, application and the partition
deed and when the partition deed is not disputed by both the
parties, the Trial Court ought not to have dismissed the
application. Hence, it requires interference of this Court.
11. In view of the discussion made above, I pass the
following:
ORDER
(i) The miscellaneous first appeal is allowed.
(ii) The impugned order is set aide and
consequently, I.A.No.1 is allowed and relief
as sough in I.A.No.1 is granted as against the
respondent.
Sd/-
(H.P.SANDESH)
JUDGE
ST
