Karnataka High Court
Sri Venkatappa K G vs J Manjunath on 13 November, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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MFA No. 1579 of 2024
C/W MFA No. 1584 of 2024
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.1579 OF 2024 (CPC)
C/W
MISCELLANEOUS FIRST APPEAL NO. 1584 OF 2024
IN MFA No. 1579/2024
BETWEEN:
1. SRI VENKATAPPA K G
S/O LATE PUTTANNA K G
AGED ABOUT 87 YEARS,
RESIDENT OF G HANUMANAHALLI VILLAGE,
SHIVANAHALLI POST,
KASABA HOBLI,
KANAKAPURA TALUK
RAMANAGARA DISTRICT
...APPELLANT
(BY SRI. KASHINATH J.D., ADVOCATE)
AND:
Digitally signed by 1. J MANJUNATH
REKHA R
Location: High Court S/O H L JOGIREDDY
of Karnataka
AGED ABOUT 48 YEARS,
RESIDING AT HOUSE NO.33,
CHIKKAADUGODI 2ND MAIN ROAD,
D R C POST
BENGALURU-560029
2. SMT BHARGAVI
D/O LATE PRABHAKAR K G
AGED ABOUT 37 YEARS,
RESIDING AT NO.118, 2ND CROSS, J C LAYOUT,
TEACHERS COLONY,
KANAKAPURA TOWN
RAMANAGARA DISTRICT-562117
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MFA No. 1579 of 2024
C/W MFA No. 1584 of 2024
3. SMT SHRUTHI P
D/O LATE PRABHAKAR K G
AGED ABOUT 33 YEARS,
RESIDING AT NO.118, 2ND CROSS, J C LAYOUT,
TEACHERS COLONY,
KANAKAPURA TOWN
RAMANAGARA DISTRICT-562117
4. THE TAHSILDAR
KANAKAPURA TALUK
KANAKAPURA
RAMANAGARA DISTRICT-562117
...RESPONDENTS
(BY SRI. RAVISHANKAR S., ADVOCATE FOR C/R1
R2 AND R3 ARE SERVED AND UNREPRESENTED
SRI. GOPAL KRISHNA SOODI, AGA FOR R4)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 08.1.2024 PASSED ON I.A. NO. II
IN O.S.NO. 59/2023 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND JMFC, KANAKAPURA, REJECTING I.A. NO.II
FILED UNDER ORDER XXXIX RULES 1 AND 2 READ WITH
SECTION 151 OF CPC.
IN MFA NO. 1584/2024
BETWEEN:
SRI VENKTAPPA K G
S/O LATE PUTTANNA K G
AGED ABOUT 87 YEARS,
RESIDENT OF G HANUMANAHALLI VILLAGE,
SHIVANAHALLI POST,
KASABA HOBLI,
KANAKAPURA TALUK
RAMANAGARA DISTRICT
...APPELLANT
(BY SRI. KASHINATH J.D., ADVOCATE)
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MFA No. 1579 of 2024
C/W MFA No. 1584 of 2024
AND:
1. J MANJUNATH
S/O H L JOGIREDDY
AGED ABOUT 48 YEARS,
RESIDING AT HOUSE NO.33,
CHIKKAADUGODI 2ND MAIN ROAD,
D R C POST
BENGALURU-560029
2. SMT BHARGAVI
D/O LATE PRABHAKAR K G
AGED ABOUT 37 YEARS,
3. SMT SHRUTHI P
D/O LATE PRABHAKAR K G
AGED ABOUT 33 YEARS,
R-1 AND R-2 ARE R/AT NO.118,
2ND CROSS, J C LAYOUT,
TEACHERS COLONY,
KANAKAPURA TOWN
RAMANAGARA DISTRICT-562117
4. THE TAHSILDAR
KANAKAPURA TALUK
KANAKAPURA
RAMANAGARA DISTRICT-562117
...RESPONDENTS
(BY SRI. RAVISHANKAR S., ADVOCATE FOR C/R1
R3 ARE SERVED AND UNREPRESENTED
SRI. GOPAL KRISHNA SOODI, AGA FOR R4
VIDE ORDER DATED 19.06.2024,
NOTICE TO R2 HELD SUFFICIENT)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) READ
WITH SECTION 151 OF CPC, AGAINST THE ORDER DATED
08.01.2024 PASSED ON I.A.NO.1 IN OS.NO.59/2023 ON
THE FILE OF SENIOR CIVIL JUDGE AND JMFC,
KANAKAPURA, REJECTING THE I.A.NO.1 THE FILED
UNDER ORDER 39 RULE 1 AND 2 READ WITH SECTION 151
OF CPC.
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MFA No. 1579 of 2024
C/W MFA No. 1584 of 2024
THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL JUDGMENT
Heard learned counsel for appellant and also learned
counsel appearing for respondents.
2. These two appeals are filed against the
rejection of I.A.Nos.I and II filed under Order XXXIX Rule
1 and 2 r/w Section 151 C.P.C, wherein prayed to restrain
the defendants from interfering with peaceful possession
and enjoyment of the suit schedule property and also not
alienate the property till the disposal of the suit and trial
Court rejected both the applications and hence these two
appeals are filed.
3. The main case of the plaintiff before the trial
Court is that the property belongs to the joint family and it
is an ancestral property and there was a partition in the
year 1961 i.e., 21.09.1961 and the suit schedule property
was fallen to the share of plaintiff and no extent is
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mentioned but in allotment of share particularly in favour
of this petitioner Sy.No.117 is specifically mentioned. It is
also stated in the partition deed with regard to the tenancy
claim made by the others and learned counsel contend
that subsequent to partition, tenancy claim was considered
and property No.117 was returned to the family, but the
same was mutated in the name of Alamelamma, wife of
Puttanna, who is the propositor of the family and
subsequently K.G.Prabhakar, father of respondents and
brother of plaintiff got the property in his favour and got
the sale deed. Subsequently when K.G.Prabhakar passed
away his wife executed the documents in favour of
defendant No.1. The same is challenged before the trial
Court by filing a suit seeking relief of declaration and also
contend that plaintiff is in possession of the property and
also contend that if any property is further sold, it would
create multiple proceedings and sought for interim order
praying to protect the possession of the property as well
as restraining the defendant from interfering with
possession and enjoyment of the property and also
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restraining the defendant from alienating the property
during the pendency of the suit.
4. The defendant appeared and filed objections to
those I.As, contending that the defendant is the absolute
owner in possession of the property by virtue of sale deed
dated 05.05.2007 executed by defendant No.1. Defendant
No.1 contend that the mother of defendant Nos.2 and 3
executed the sale deed in favour of defendant No.1 and
K.G.Prabhakar is the absolute owner and peaceful
possession of suit schedule property and after his death
his wife Sudha executed sale deed in favour of defendant
No.1. The assertion of the plaintiff that the suit schedule
property was fallen to the share in family partition is
denied and contend that plaintiff has no right, title,
interest over the property, but trying to interfere with the
possession and defendant was not made party in the
proceedings before Assistant Commissioner and plaintiff
also not made out any prima facie case and hence prayed
the Court to reject the application.
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5. The trial Court having considered the pleadings
of both the parties and also taken note of the submission
made by the plaintiff that the property fallen to the share
of plaintiff in terms of partition deed dated 21.09.1961 and
also the contention of the defendant that the trial Court
taken note of the fact that plaintiff is the son of Puttanna
and Alamelamma. Father of defendant Nos.2 and 3 by
name K.G.Prabhakar is one of the brother of the plaintiff
and he is no more. The mother of defendant Nos.2 and 3
by name Sudha, who is vendor of the suit schedule
property executed the sale deed in favour of defendant
No.1.
6. The trial Court having considered the
relationship between the parties as well right of parties is
concerned and also taken note of the partition deed dated
21.09.1961 since claim was made by the plaintiff that
property Sy.No.117 was fallen to the share of the plaintiff
but there were proceedings of the Government, in which
the suit schedule property and other properties were taken
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over by the Government. The mutation extracts produced
by the plaintiffs discloses that the Government returned
those properties to the original owners and at that time as
per statement of mother of plaintiff i.e., Alamelamma,
mutation was effected in the name of brother of plaintiff
by name K.G.Prabhakar and RTC was in his name and also
taken note of the fact that sale deed was executed by said
Sudha in favour of defendant No.1.
7. However, in paragraph No.14 the trial Court, it
comes to the conclusion that suit schedule property was
taken over by Government and vested with it. Thereafter
it was came to the name of Alamelamma and revenue
records are entered in the name of K.G.Prabhakar and also
an observation is made that when once the land vests with
the Government, validity of the partition deed dated
21.09.1961 is a question to be considered at the time of
trial and at this stage plaintiff has not made out any prima
facie material with regard to his possession and also only
photographs are produced and photographs cannot be
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relied by the Court with regard to possession is concerned
for suit schedule property and rejected the same.
8. Being aggrieved by the said order passed by
the trial Court, learned counsel for appellant would
vehemently contend that there was a partition in the
family property bearing Sy.No.117 allotted in favour
plaintiff/appellant and also it is not in dispute that property
originally belongs to Puttanna. It is also not in dispute that
the partition deed is registered. Learned counsel would
submit that when the entire property is vested to the
share of plaintiff and thereafter when determination was
made with regard to tenancy is concerned in respect of 3
acres 2 guntas to the family and consistently revenue
entries are made in the name of Alamelamma and also
other son K.G.Prabhakar who got mutated in collision with
the revenue people and subsequently it was sold. But the
fact is that the property was allotted in favour of plaintiff
in registered partition deed, the remaining property
already vested with the plaintiff family and not with
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Alamelamma and any document is created and the same
may not confirm the title either in favour of K.G.Prabhakar
or in favour of Alamelamma and also they are not having
any right over the suit schedule property.
9. Learned counsel for the appellant also relied
upon the decision in Kizhakke Vattakandiyil Madhavan
(Dead) Thr. LRs vs. Thiyyurkunnath Meethal Janaki
and Ors1 and brought to the notice of the Court that if
any property is transferred, the very person who is having
the right to transfer the property must have right, but if
the vendor is not having any right to sell the property, the
question of conveying any right does not arise. Learned
counsel also vehemently contend that when the property
was restored back to the family, it will go to the plaintiff
only, since there was registered document of partition,
instead of created document and got transferred. The
learned counsel would contend that suit is filed for relief of
declaration, the question of challenging the release deed
2024 SCC Online SC 517
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does not arise. In fact the trial Court also taken note of
the document of partition deed and the same itself is
prima facie case in favour of plaintiff and the same has not
been considered.
10. Per contra learned counsel for respondent
would contend that defendant No.1 had purchased the
property from defendant No.2, the plaintiff's mother and
also revenue records standing in the name of vendor and
also contend that sale was made in the year 2007 and
though challenge made in the revenue entries is
concerned and property was sold in the year 2007, the
possession was delivered in 2022. Plaintiff has kept quite
and filed suit in 2023 and also counsel would contend that
no prima facie is made out before the trial Court as on the
date of filing that plaintiff is in possession of the property.
Hence, the trial Court has rightly come to the conclusion
that based on the photographs possession cannot be
ascertained and assert that all the properties are standing
in the name of defendant subsequent to the purchasing of
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the property and also learned counsel has brought to the
notice of the Court that the objections was filed and in the
very objection statement it is stated that they are not
going to make any alienation. However the trial Court
rejected both the application and does not require any
interference by this Court.
11. Learned counsel appearing for the State
submits that matter requires full fledged trial since there is
serious title dispute and in this case unless the trial takes
place, the issue with regard to the possession cannot be
decided.
12. Having heard the learned counsel for the
appellant and also learned counsel appearing for
respondent and also considering the material on record
particularly the registered document of partition deed
dated 21.09.1961, it is not in dispute that survey number
i.e., Sy.No.117 is mentioned, but total extent is not
mentioned in the partition deed, which is allotted in favour
of the plaintiff. There is no dispute with regard to said fact
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is concerned. It is also not in dispute that in respect of
partition deed is concerned, there is reference that there
are some claims made by the tenants and also reference is
also made and the same is to be ascertained and claim
has to be contested as to the determination of the claim
made by the tenant.
13. It is also not in dispute that the proceedings
were taken place and subsequently revenue entry entering
the same in favour of Alamelamma also, the property was
returned to the family, but the document was made in
favour of Alamelamma. It is also to take note that the
schedule property Sy.No.117 is not allotted to
Alamelamma and the same is allotted in favour of plaintiff
in the partition deed. It is also important to note that
subsequently entry made in the revenue records in the
name of Alamelamma and the same also got transferred in
the name of K.G.Prabhakar i.e., only based on the
statement of Alamelamma. Subsequently wife of
K.G.Prabhakar executed sale deed in favour of defendant
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No.1, when the suit is filed for declaration and questioned
the right, title and the same is sold in favour of defendant
No.1.
14. The trial Court ought to have taken note of the
said fact and particularly ought to have taken note of the
partition deed, which was registered wherein Sy.No.117
was allotted in favour of plaintiff. The trial Court has
committed error in coming to the conclusion that plaintiff
has not made out any prima facie case and merely making
entry in Mutation Register and transfer of the same in
favour of vendor Sudha i.e, wife of K.G.Prabhakar and the
same will not confirm any right and it is also a settled law
that revenue entry cannot be basis for the title.
15. However, in paragraph No.14 made an
observation that plaintiff has not made out any prima facie
on the ground that the property is vested in the
Government and validity of partition deed dated
21.09.1961 is a question to be considered and that the
trial Court come to conclusion the validity of the partition
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deed has to be considered at the time of considering final
arguments and matter requires trial hence, ought to have
granted relief not to alienate the suit schedule property
and the same leads to multiplicity of the proceedings and
fails to exercise discretion in favour of plaintiff when the
relief sought for in the suit is regarding transfer of title is
considered.
16. The very contention of the plaintiff that very
property was allotted in the partition deed and
subsequently sale is made and the validity has to be
considered by the trial Court at the time of trial, but
committed error in dismissing I.A.No.2 in passing the
order instead of restraining the defendants not to alienate.
However, the trial Court has taken note of the material on
record only photographs are produced by the plaintiff with
regard to possession is concerned and I do not find any
error committed by the trial Court in coming to the
conclusion that based on the photographs cannot decide
the issue of possession is concerned and on the date of
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filing of the suit, no documents are produced before the
trial Court that plaintiff has been in possession of the
property and hence, the question of granting relief of
temporary injunction restraining the defendants from
interfering with the peaceful possession, unless prima facie
case is made out that the plaintiff has been in possession
of the property.
17. Hence, I do not find any error committed by the
trial Court in rejecting I.A.No.I. It is also important to note
that respondent counsel also brought to the notice of this
Court that in the statement of objections itself, the
respondent given an undertaking that he will not alienate
the property and the statement of objections is also not
taken note by the trial Court while passing the order when
I.A was filed restraining the defendant to alienate the
property and having taken note of the said fact this court
consider that it requires interference. Considering the
material placed on record, the matter requires full fledged
trial and with regard to the sale made by the wife of the
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said K.G.Prabhakar based on the revenue entry has to be
decided before the trial Court and issue of title is also
seriously disputed which is the matter requires trial. In
view of the above discussion, I pass the following:
ORDER
(i) MFA.No.1584/2024 is dismissed. The order
passed by the trial Court rejecting I.A.No.I
is confirmed.
(ii) MFA.No.1579/2024 is allowed. The order
passed by the trial Court rejecting I.A.No.II
is set aside and consequently I.A.No.II is
allowed.
(iii) The defendant/respondent is restrained
from alienating the suit schedule property
till the disposal of the suit.
(iv) The suit is of the year 2023 and hence, the
trial Court is directed to dispose of the suit
within a period of one year from today.
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(v) Both appellant and respondent and their
respective counsel are directed to assist the
trial Court in disposal of the suit within a
time bound period of one year.
SD/-
(H.P.SANDESH)
JUDGE
RR
