Karnataka High Court
Gangadevi W/O Hanamanthrao Patil vs Mahadevi And Ors on 20 November, 2024
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NC: 2024:KHC-K:8676
MFA No. 201413 of 2021
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 20TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
MISCL. FIRST APPEAL NO. 201413 OF 2021 (CPC)
BETWEEN:
1. GANGADEVI W/O HANMANTHRAO PATIL
AGE 40 YEARS
OCC: HOUSEHOLD
R/O C/O G. PRABHAKAR
PLOT NO.34, GANESH NAGAR
RING ROAD, SEDAM ROAD
KALABURAGI-585 105.
...APPELLANT
(BY SRI. S.B. HANGARAKI, ADVOCATE)
AND:
1. MAHADEVI
W/O SHIVSHARNAPPA SAWALGI
Digitally signed by AGE 46 YEARS
RENUKA
OCC: HOUSEHOLD
Location: HIGH
COURT OF R/O C/O SIDRAMAPPA KERI
KARNATAKA NEAR SIDRAMESHWAR
TEMPLE, HALKATTI GALLI
SEDAM, POST SEDAM
DIST. KALABURAGI-585 222.
2. MALLESHAPPA
S/O SHIVSHARNAPPA AGASTHIRTH
AGE 62 YEARS
OCC: AGRI.
R/O H NO. 2-304
NEAR AKKAMAHADEVI TEMPLE
JAGATH, KALABURAGI-585 102.
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MFA No. 201413 of 2021
3. SHARANAMMA
W/O SHIVSHARNAPPA PATIL SANGOLGI
AGE 56 YEARS
OCC. HOUSEHOLD
R/O RTO CROSS
OPP. GARDEN SEDAM ROAD
KALABURAGI.
4. SHIVAMMA
W/O SHIVSHARNAPPA PATIL
AGE 58 YRS
OCC: HOUSEHOLD
R/O C/O PADMANNA
S/O AMBARAYA DEVARMANI
NEAR AKKAMAHADEVI TEMPLE
JAGAH
KALABURAGI-585 102.
5. NAGBHUSHAN
S/O SHIVSHARNAPPA AGASTHIRTH
AGE 49 YEARS
OCC: BUSINESS
R/O H.NO.2-304
NEAR AKKAMAHADEVI TEMPLE
JAGATH
KALABURAGI-585 102.
6. MAYADEVI
W/O MANIKRAO BHIMJI
AGE 52 YEARS
OCC: HOUSEHOLD
R/O C/O YAMANABAI UPPIN
BETWEEN BASAWANAPPA TEMPLE AND
AKKAMAHADEVI TEMPLE JAGAT
KALABURAGI-585 102.
7. THE EXECUTIVE ENGINEER KUWS
AND DB KALABURAGI.
8. ASST. COMMISSIONER AND
LAND ACQUISITION OFFICER
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MFA No. 201413 of 2021
KALABURAGI DIVISION
KALABURAGI-585 102.
...RESPONDENTS
(BY SRI. RAVI B. PATIL, ADVOCATE FOR R1, R3, R4 AND R6;
SRI. HARSHAVARDHAN R. MALIPATIL, ADVOCATE
FOR R2 AND R5;
SRI. CHAITANYAKUMAR .C.M, ADVOCATE FOR R7;
SMT. ARATI PATIL, HCGP FOR R8)
THIS MFA IS FILED U/O. 43 RULE 1 OF CPC R/W SEC.104
AND 106 OF CPC, PRAYING TO SET ASIDE THE ORDER PASSED
BY THE COURT OF THE IST ADDL. DISTRICT JUDGE,
KALABURAGI IN R.A. NO.67/2017 DATED 22.04.2021 ON
I.A.NO.1 FILED U/O. 39 R 1 AND 2 R/W SEC.151 OF CPC, AND
THEREBY CONSEQUENTLY ALLOW THE SAME, IN THE
INTEREST OF JUSTICE.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM)
The captioned appeal is by the plaintiff who is
aggrieved by the order of the Appellate Court passed on
I.A.No.1 filed under Order 39 Rule 1 and 2 read with
Section 151 of CPC seeking interim injunction against
respondents from withdrawing the compensation amount
deposited by the authorities for having acquired suit
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schedule properties bearing Sy.No.76/A and 76/AA
situated at Nandikur Village.
2. The facts leading to the case are as under:
The present plaintiff filed a suit seeking relief of
partition and separate possession in O.S.No.55/2011.
Plaintiff specifically contended that the subject matter of
this appeal including other properties are joint family
ancestral properties and therefore, filed a suit seeking
partition and separate possession of her legitimate share.
The above said two survey numbers are acquired by the
State and this factual matrix is admitted by the parties to
the suit and in appeal. The Trial Court has declined to
adjudicate the present appellant's right over these
properties on the premise that these lands are already
acquired and there cannot be any adjudication in a
partition suit.
3. The appellant/plaintiff apprehending the
dismissal of the suit insofar as these two properties are
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concerned filed an application under Order 39 Rule 1 and 2
requesting the Appellate Court to restrain the respondents
from withdrawing the compensation amount. The said
application is rejected. Appellate Court while rejecting the
application expressed that plaintiff's right in these two
properties needs adjudication at the hands of the Appellate
Court, being a final fact finding authority. Referring to
revenue records, Appellate Court declined to grant
injunction on the premise that these two properties were
admittedly standing in the name of defendant No.2 and 5
since 1993-94. Referring to these documents, more
particularly Exs.P-1 and P-6, Appellate Court was of the
view that plaintiff's right in the properties needs final
adjudication and since these properties are admittedly
standing in the name of defendant Nos.2 and 5 as
evidenced at Exs.P-1 and P-6, Appellate Court was of the
view that no injunction can be granted. The said order is
under challenge.
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4. Heard learned counsel for the appellant/plaintiff
and learned counsel appearing for the defendant No.2 and
5.
5. The principles underpinning the grant of an
injunction under Order 39 Rule 1 and 2 of the Code of Civil
Procedure (CPC) mandate civil Courts to exercise their
discretionary powers judiciously to preserve the property
in dispute pending adjudication. These rules recognize the
necessity of maintaining the status quo to avoid
irreparable harm to the parties and ensure that the subject
matter of the litigation remains intact for final
adjudication. The three cardinal principles governing the
grant of temporary injunction are: (i) the existence of
a prima facie case, (ii) the likelihood of irreparable injury
to the applicant if the injunction is not granted,
and (iii) the balance of convenience favouring the
applicant. In the present case, the Trial Court, while
addressing the plaintiff's claim over two specific
properties, declined to record its findings on the premise
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that the properties had been acquired and were no longer
available to the family. Such an approach overlooks the
essential duty of the Court to ensure that properties
forming the subject matter of litigation are safeguarded to
prevent their alienation or irreversible damage.
6. The Appellate Court, being the final fact-finding
authority under Order 41 read with Section 96 of CPC, is
mandated to re-assess the material on record
comprehensively. This re-evaluation extends to the
pleadings, oral and documentary evidence, and issues
framed by the Trial Court. The core issue for the Appellate
Court's consideration is whether the Trial Court erred in
failing to adjudicate the plaintiff's claim over these two
lands merely because they were purportedly acquired and
thus not available for partition. When conflicting claims
exist regarding the ancestral or self-acquired nature of
properties, the Courts are bound to preserve such
properties until the parties' respective rights are
conclusively determined. The Trial Court's refusal to
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address this critical issue creates a significant lacuna,
warranting the Appellate Court's intervention to uphold the
principles of equity and justice.
7. In partition suits where familial relations and
co-ownership are admitted, Courts are under a heightened
obligation to preserve the properties until rights are
adjudicated. The plaintiff's contention that the properties
are ancestral must be critically examined, particularly in
the absence of adequate reasoning from the Trial Court.
Conversely, the defendants' claim that the properties are
self-acquired and not available for partition must be
supported by rebuttal evidence. The Appellate Court must
examine the documentary and oral evidence meticulously
to determine the ancestral or self-acquired nature of the
properties.
8. A careful perusal of the issues framed and the
pleadings in the written statement reveals that the
defendants have taken the plea of a prior partition, which
inherently acknowledges that the properties in question
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are ancestral in nature. By asserting that a division of
ancestral properties has already occurred, the defendants'
own pleadings necessitate a thorough re-examination to
ascertain whether such a prior partition indeed took place
and whether it was validly effected. This contention,
central to the resolution of the dispute, requires fresh
appraisal by the Appellate Court, particularly in light of the
plaintiff's claim to these properties and the absence of
specific findings by the Trial Court. The Appellate Court
must revisit the documentary and oral evidence to
determine the legitimacy of the prior partition and its
impact on the plaintiff's entitlement, ensuring that the
issues are adjudicated comprehensively and equitably.
Further, it must address whether a prior partition, as
alleged by the defendants, has divested the plaintiff of any
entitlement. This judicial scrutiny should extend to specific
issues raised, such as issue No.6, which pertains to the
ownership and status of the disputed properties.
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9. The denial of an injunction by the Appellate
Court, without adequately balancing the equities or
considering the possibility of irreparable harm to the
plaintiff, reflects a failure to exercise judicial discretion
judiciously. If the defendants are permitted to withdraw
the compensation amount associated with the properties
during the pendency of the appeal, it would lead to
irreversible prejudice against the plaintiff. The risk of
losing the compensation amount, which would be difficult,
if not impossible, to recover in the event the plaintiff
succeeds in the appeal, underscores the necessity of
preserving the property. The principles governing
injunctions emphasize that the Court must consider the
broader implications of its orders on the parties' rights and
the ultimate objective of justice.
10. The Trial Court's findings on other properties
affirm their ancestral nature, which further underscores
the need for a fresh examination of the two disputed
properties. The failure to assign specific reasons for
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denying the plaintiff's claim to these properties, coupled
with the potential prejudice arising from the dismissal of
the suit, necessitates appellate re-evaluation. In this
context, the Appellate Court's obligation to preserve the
property or compensation amount assumes critical
importance. Therefore, by failing to grant an injunction,
the Appellate Court has allowed an inequitable situation to
prevail. The preservation of the disputed properties aligns
with the judicial mandate to ensure that the rights of the
parties are safeguarded during the pendency of litigation,
as stipulated under Order 39 Rules 1 and 2.
11. In light of the foregoing, the denial of the
injunction by the Appellate Court suffers from a clear lack
of judicial reasoning and amounts to a perverse exercise of
discretion. The equities, procedural mandates, and
principles governing injunctions necessitate a reversal of
the impugned order under Order 43 of CPC.
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12. For the reasons stated supra, this Court
proceeds to pass the following:
ORDER
(i) The appeal is allowed;
(ii) The impugned order dated 22.04.2021
passed on I.A.No.1 in R.A.No.67/2017 is hereby
set aside. Consequently, I.A.No.1 is allowed;
(iii) The respondent Nos.1 to 6 are hereby
directed not to withdraw 1/7th of the
compensation amount which is the subject
matter of the suit, on which plaintiff is asserting
and laying a claim on the premise that it is joint
family ancestral property. The 1/7th share shall
be kept in safe judicial deposit pending
consideration of the appeal;
(iv) It is needless to mention that it is open
for the contesting defendants/respondents to
withdraw the balance compensation amount in
accordance with law.
Sd/-
(SACHIN SHANKAR MAGADUM)
JUDGE
