Karnataka High Court
Sri. C. Mallesh vs Smt. Narasamma on 23 October, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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MFA No. 2990 of 2024
C/W MFA No. 2991 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 2990 OF 2024 (CPC)
C/W
MISCELLANEOUS FIRST APPEAL NO. 2991 OF 2024 (CPC)
IN MFA NO.2990/2024:
BETWEEN:
1. SRI C. MALLESH,
S/O LATE CHINNAGAIAH
AGED ABOUT 56 YEARS
R/AT CHAKENAHALLI VILLAGE
YEDIYUR HOBLI,
KUNIGAL TALUK
TUMKUR DISTRICT-572142.
2. SRI RAKESH C.M.,
S/O SRI C. MALLESH
AGED ABOUT 24 YEARS
Digitally signed
by DEVIKA M R/AT CHAKENAHALLI VILLAGE
Location: HIGH YEDIYUR HOBLI,
COURT OF KUNIGAL TALUK
KARNATAKA TUMKUR DISTRICT-572142
...APPELLANTS
(BY SRI. PRAKASH B.N., ADVOCATE)
AND:
1. SMT. NARASAMMA
W/O LATE SRI T. KRISHNA
AGED ABOUT 66 YEARS
NATIVE OF JALADIGERE
YEDIYURU HOBLI
KUNIGAL TALUK
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MFA No. 2990 of 2024
C/W MFA No. 2991 of 2024
NOW R/AT NO.34
GRAMADEVETHE STREET
UPPARAHALLI, LALBAGH
BENGALURU-560004.
2. SMT. HUCHAMMA
W/O LATE SRI LAKSHMANA
AGED ABOUT 63 YEARS
NATIVE OF JALAGIGERE
YEDIYUR HOBLI
KUNIGAL TALUK
NOW R/AT NO.34
GRAMADEVETHE STREET
UPPARAHALLI, LALBAGH
BENGALURU-560004.
3. SMT. SHAKUNTHALA
W/O LATE SRI T. RAMACHANDRA
AGED ABOUT 59 YEARS
NATIVE OF JALAGIGERE
YEDIYUR HOBLI
KUNIGAL TALUK
NOW R/AT NO.34
GRAMADEVETHE STREET
UPPARAHALLI, LALBAGH
BENGALURU-560004.
4. SRI J.D. MANJUNATHA
S/O LATE SRI DODDAGIRIYAPPA
AGED ABOUT 56 YEARS
R/AT JALADIGERE VILLAGE
YEDIYUR HOBLI
KUNIGAL TALUK
TUMKUR DISTRICT-572142.
5. SMT. SHARADAMMA
W/O J.D. MANJUNATHA
AGED ABOUT 51 YEARS
R/AT JALADIGERE VILLAGE
YEDIYUR HOBLI
KUNIGAL TALUK
TUMKUR DISTRICT-572142.
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MFA No. 2990 of 2024
C/W MFA No. 2991 of 2024
6. SMT. NANDINI J.M.,
D/O SRI J.D. MANJUNATHA
AGED ABOUT 33 YEARS
R/AT JALADIGERE VILLAGE
YEDIYUR HOBLI
KUNIGAL TALUK
TUMKUR DISTRICT-572142.
7. SMT. J.M. NETHRAVATHI
D/O SRI J.D. MANJUNATHA
AGED ABOUT 30 YEARS
R/AT JALADIGERE VILLAGE
YEDIYUR HOBLI
KUNIGAL TALUK
TUMKUR DISTRICT-572142.
8. SRI J.M. VENKATESH
S/O SRI J.D. MANJUNATHA
AGED ABOUT 28 YEARS
R/AT JALADIGERE VILLAGE
YEDIYUR HOBLI
KUNIGAL TALUK
TUMKUR DISTRICT-572142
...RESPONDENTS
(BY SRI. PUNITH C., ADVOCATE FOR R1 TO R3;
VIDE ORDER DATED 21.05.2024,
NOTICE TO R4 TO R8 ARE DISPENSED WITH)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 27.04.2024 PASSED ON IA.NO.4
IN OS.NO.104/2022, ON THE FILE OF THE SENIOR CIVIL
JUDGE AND JMFC, KUNIGAL, DISMISSING THE I.A.NO.4 FILED
UNDER ORDER 39 RULE 1 AND 2 R/W. SECTION 151 OF CPC.
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MFA No. 2990 of 2024
C/W MFA No. 2991 of 2024
IN MFA NO. 2991/2024:
BETWEEN:
1. SRI. C. MALLESH
AGED ABOUT 56 YEARS,
S/O LATE CHINNAGAIAH,
RESIDING AT CHAKENAHALLI VILLAGE,
YEDIYUR HOBLI, KUNIGAL TALUK,
TUMKUR DISTRICT-572142.
2. SRI RAKESH C.M.
AGED ABOUT 24 YEARS,
S/O SRI C. MALLESH,
RESIDING AT CHAKENAHALLI VILLAGE,
YEDIYUR HOBLI, KUNIGAL TALUK,
TUMKUR DISTRICT 572142
...APPELLANTS
(BY SRI. PRAKASH B.N., ADVOCATE)
AND:
1. SMT. NARASAMMA,
W/O LATE SRI T. KRISHNA,
AGED ABOUT 66 YEARS,
NATIVE OF JALADIGERE,
YEDIYUR HOBLI, KUNIGAL TALUK,
NOW RESIDING AT NO.34,
GRAMADEVETHE STREET,
UPPARAHALLI, LALBAGH,
BENGALURU-560004.
2. SMT. HUCHAMMA
W/O LATE SRI LAKSHMANA,
AGED ABOUT 63 YEARS,
NATIVE OF JALADIGERE,
YEDIYUR HOBLI, KUNIGAL TALUK,
NOW RESIDING AT NO.34,
GRAMADEVETHE STREET,
UPPARAHALLI, LALBAGH,
BENGALURU-560004.
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MFA No. 2990 of 2024
C/W MFA No. 2991 of 2024
3. SMT. SHAKUNTHALA
W/O LATE SRI T.RAMACHANDRA,
AGED ABOUT 59 YEARS,
NATIVE OF JALADIGERE,
YEDIYUR HOBLI, KUNIGAL TALUK,
NOW RESIDING AT NO 34,
GRAMADEVETHE STREET,
UPPARAHALLI, LALBAGH,
BENGALURU-560004.
4. SRI J.D.MANJUNATHA
AGED ABOUT 56 YEARS,
S/O LATE SRI DODDAGIRIYAPPA,
RESIDING AT JALADIGERE VILLAGE,
YEDIYUR HOBLI, KUNIGAL TALUK,
TUMKUR DISTRICT-572142.
5. SMT. SHARADAMMA
AGED ABOUT 51 YEARS,
W/O SRI J.D.MANJUNATHA,
RESIDING AT
JALADIGERE VILLAGE,
YEDIYUR HOBLI, KUNIGAL TALUK,
TUMKUR DISTRICT-572142.
6. SMT. NANDINI
AGED ABOUT 33 YEARS,
D/O SRI J.D.MANJUNATHA,
RESIDING AT
JALADIGERE VILLAGE,
YEDIYUR HOBLI,
KUNIGAL TALUK,
TUMKUR DISTRICT-572142.
7. SMT. J.M. NETHRAVATHI
AGED ABOUT 30 YEARS,
D/O SRI J.D. MANJUNATHA,
RESIDING AT JALADIGERE VILLAGE,
YEDIYUR HOBLI, KUNIGAL TALUK,
TUMKUR DISTRICT-572142.
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MFA No. 2990 of 2024
C/W MFA No. 2991 of 2024
8. SRI J.M. VENKATESH
AGED ABOUT 28 YEARS,
S/P SRI J.D. MANJUNATHA,
RESIDING AT JALADIGERE VILLAGE,
YEDIYUR HOBLI, KUNIGAL TALUK,
TUMKUR DISTRICT-572142.
...RESPONDENTS
(BY SRI. PUNITH C., ADVOCATE FOR R1 TO R3;
VIDE ORDER DATED 21.05.2024,
NOTICE TO R4 TO R8 ARE DISPENSED WITH)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF
CPC, AGAINST THE ORDER DATED.27.04.2024 PASSED ON
IA.NO.1 IN OS.NO.104/2022, ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC, KUNIGAL, ALLOWING THE
I.A.NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 OF CPC.
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 the learned counsel for appellants and learned
counsel for respondents.
2. These two appeals are filed against the order
passed by the Trial Court in dismissing I.A.No.1 filed by the
plaintiff and I.A.No.4 filed by the defendant invoking Order 39
Rule 1 and 2 of CPC. I.A.No.1 was allowed and I.A.No. 4 was
dismissed filed by the defendant and hence defendant is before
this Court by filing these two miscellaneous appeals.
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3. The factual matrix of the case is that the plaintiff
filed the suit in O.S.No.104/2022 seeking the relief of
declaration and inter-alia sought for the relief of temporary
injunction as per I.A.No.1 wherein it is contended that the
property was originally belongs to Doddagiriyappa S/o
Venkategowda and the same was sold in the year 1982 in
favour of Mayamma W/o Chikkathirumalegowda and
subsequently Mayamma passed away and revenue entries are
found in the name of Kurithirumallaiah in respect of
Sy.No.124/5 to an extent of 2 acres 17 guntas and prayed the
Court to grant the relief of temporary injunction and also in the
suit sought for the relief of declaration to declare that sale deed
dated 14.02.2022 is a void document and so also for a
declaration that alleged gift deed dated 24.03.2022 created by
defendant No.6 in favour of defendant No.7 is also illegal and
for consequential permanent injunction. The
appellant/defendant Nos.6 and 7 have appeared and filed
written statement contending that they have purchased the
property from the defendant Nos.1 to 5 who are the legal
representatives of Doddagiriyappa S/o Kani Girigowda and sale
was made on 14.02.2022 in favour of defendant No.6 and in
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turn defendant No.6 executed gift deed in favour of defendant
No.7 and also contend that consequent upon the purchase,
revenue entries are found in the name of the defendant and
defendant sought for the relief of temporary injunction against
the plaintiff and the same is numbered as I.A.No.4. The Trial
Court having considered the grounds which have been urged in
the plaint and application accompanying the affidavit filed by
the respective parties and also considering the material on
record, allowed I.A.No.1 filed by the plaintiff and rejected
I.A.No.4 filed by the defendant No.7 in coming to the
conclusion that plaintiff has made out the prima facie case and
balance of convenience in favour of plaintiff since the title from
1952 onwards and apart from that Tippani also of the year
1933 stands in the name of vendor of the plaintiff's family. The
defendants are tracing their title only based on the revenue
entries and sale deed recitals also does not disclose about the
title of the defendant/Vendor. Hence, comes to the conclusion
that the defendant has not made out any ground to grant the
relief as sought.
4. Being aggrieved by these two orders, the present
two appeals are filed and counsel appearing for the appellants
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would vehemently contend that Trial Court committed an error
in allowing I.A.No.1 filed by the plaintiff and so also committed
an error in dismissing I.A.No.4 filed by the appellant. Though
distinct order has been passed, but not considered the material
on record in proper perspective and committed an error in
coming to the conclusion that plaintiff has made out a prima
facie case. The counsel appearing for the appellant would
vehemently contend that when the revenue records stands in
the name of the defendant as on the date of filing of suit, ought
not to have grant the relief of temporary injunction.
5. Per Contra, counsel appearing for the respondent
would vehemently contend that plaintiff in support of his case,
relied upon the document of 1933 decree copy and thereafter
Tippani copy which stands in the name of Doddagiriyappa S/o
Venkategowda and also he had executed the sale deed in
favour of Mayamma W/o Kurithirumallaiah. The plaintiffs are
the legal representatives of the said Kurithirumallaiah and
having prays the title as well as the RTC which have been
produced before the Court wherein both in column Nos.9 and
12 also reflects the name of Doddagiriyappa and so also in
column No.12 the name of the plaintiff's father
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Kurithirumalegowda is found and only on creation of these two
documents of sale deed and gift deed revenue entries are made
in the name of defendant. All these aspects has been
considered by the Trial Court while passing such an order and it
does not requires any interference.
6. Having heard the appellant's counsel and also the
counsel appearing for the respondent and also claim is made by
both the plaintiff and defendant in respect of the very same
Sy.No.124/5 to an extent of 2 acre 17 guntas and while passing
an order of temporary injunction, the Court has to take note of
prima facie case and no doubt the appellant claims the title
based on the sale deed dated 14.02.2022 and gift deed of the
year March -2022 and immediately within a span of one month
of sale deed gift deed is executed by the defendant No.6 in
favour of defendant No.7.
7. It is important to note that no doubt based on
these sale deed and gift deed, revenue entries are made in
favour of the defendant. While considering the prima facie case,
Court has to take note of even when the suit is filed for the
relief of declaration and also seeking for the relief of declaration
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to declare that sale deed is void and also gift deed is void,
Court has to look into the original documents of tracing of
records from 1933 and Tippani copy shows the name of the
Vendor of the said Mayamma and sale deed was executed by
Doddagiriyappa S/o Venkategowda in the year 1952. The
defendants are also tracing title and contending that the owner
is Doddagiriyappa S/o Kani Girigowda but no such document is
placed before the Trial Court to evidencing the title and relies
upon the entries found in the records and when the plaintiff
relies upon the document of RTC and so also document of
mortgage deed executed in the year 1972 in favour of one
Thimmegowda and so also RTC extracts discloses that in
column No.9 shows the name of Doddagiriyappa who is the
vendor and in column No.12 shows the name of
Kuritirumalegowda who is the husband of Mayamma who had
purchased the property from Doddagiriyappa and having taken
note of all these aspect into consideration, when the plaintiff
has made out prima facie case placing the material on record
and also it is not in dispute that revenue entries are made
consequent upon the sale deed in favour of defendant No.6 and
also the gift deed in favour of defendant No.7 when the
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defendants have not placed any material tracing the title on
them and except relying upon the revenue entries based on
subsequent sale deed and hence, these are the aspects has
been considered by the Trial Court while considering I.A.No.1
and I.A.No.4. I have already pointed out that while passing an
order of temporary injunction prima facie case they have to
make out a case and also balance of convenience in favour of
the person who claims the relief of temporary injunction and
Trial Court taken note of said fact into consideration and also
hardship with regard to if any injunction order has been
granted, all these factors have been taken note of considering
the material placed before the Trial Court and when such
reasoned order has been passed by the Trial Court having
considered the document of sale deed as well as re-sale deed.
No doubt counsel appearing for the appellant would vehemently
contend that the plaintiff have not placed any material that
they are the legal representatives of Kani girigowda. The Trial
Court also made an observation that all these matters to be
considered while considering the matter on merits. When such
being the case, when all the materials reflects with regard to
the prima facie case in favour of the plaintiffs and when relief is
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sought for declaration, I do not find any ground to set-aside the
order passed by the Trial Court in granting the relief in allowing
I.A.No.1 and also rejecting the I.A.No.4 filed by the defendant
and hence there is no merit in the both appeals to set-aside the
order. Hence, order of the Trial Court is confirmed on I.A.No.1
and so also I.A.No.4 filed by the appellants/defendants.
8. In view of the discussions made above, I pass the
following:
ORDER
Both the appeals are dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
RHS
