Karnataka High Court
Smt. Rathnamma vs Sri Shankar Narayana on 3 September, 2024
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MFA No. 5576 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
M.F.A. NO. 5576 OF 2024 (CPC)
BETWEEN:
SMT. RATHNAMMA
W/O. N. NARAYANASWAMY,
AGED ABOUT 61 YEARS,
R/AT NO. 357, 3RD CROSS,
3RD MAIN, OPP POLICE QUARTERS,
ANANDAGIRI EXTENSION,
HEBBAL, BENGALURU - 560024.
...APPELLANT
(BY SRI. K.N.PHANINDRA, SR. COUNSEL A/W.
SRI NAGARAJA V., ADVOCATE)
AND:
Digitally 1. SRI. SHANKAR NARAYANA
signed by S/O. NARAHIMAHOLA,
SUVARNA T AGED ABOUT 53 YEARS,
Location: R/AT NO. 354, 1ST MAIN, HMT LAYOUT,
HIGH ANANDA NAGARA, RT NAGAR,
COURT OF
BENGALURU - 560032.
KARNATAKA
2. SRI. N. RAJANNA
S/O. LATE NARAYANAPPA,
AGED ABOUT 59 YEARS,
3. SRI. SRINIVAS
S/O. LATE NARAYANAPPA,
AGED ABOUT 58 YEARS,
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MFA No. 5576 of 2024
4. SRI. N. GOPALAPPA
S/O. LATE NARAYANAPPA,
AGED ABOUT 57 YEARS,
5. SMT. BHAGYAMMA
D/O. LATE NARAYANAPPA,
AGED ABOUT 56 YEARS,
6. SMT. RAMAKKA
D/O. LATE NARAYANAPPA,
AGED ABOUT 50 YEARS,
7. SRI. LAKSHMIKANT
S/O. LATE VENKATASWAMY,
AGED ABOUT 30 YEARS,
8. SRI. PRAKASH
S/O. LATE VENKATASWAMY,
AGED ABOUT 28 YEARS,
9. SMT. KANTHAMMA
W/O. RAJANNA
AGED ABOUT 55 YEARS,
10. SMT. GOWRAMMA
W/O. GOPALA
AGED ABOUT 55 YEARS,
11. SRI. SHASHIDHAR
S/O. GOPAL
AGED ABOUT 35 YEARS,
12. SRI. GANESHA
S/O. GOPAL
AGED ABOUT 33 YEARS,
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MFA No. 5576 of 2024
13. SRI. MANJU
S/O. SRINIVAS
AGED ABOUT 32 YEARS,
14. SRI. UMESHA
S/O. SRINIVAS
AGED ABOUT 30 YEARS,
DEFENDANTS NO.2 TO 14 ARE
R/AT CHOLANAYAKANAHALLI VILLAGE,
KASABA HOBLI, BHUVANESWARINAGARA,
BENGALURU NORTH TALUK.
...RESPONDENTS
(BY SRI. K.VIJAYA KUMAR, ADVOCATE FOR C/R1 & R2-R14)
THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CPC,
AGAINST THE ORDER DT.29.06.2024 PASSED ON IA NO.1 IN
O.S. NO.1527/2024 ON THE FILE OF THE XVII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU, (CCH-16),
DISMISSING IA NO.1 FILED U/O.39 RULE 1 AND 2 OF CPC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
ORAL JUDGMENT
Aggrieved by the orders passed on I.A.No.1 in
O.S.No.1527/2024 dated 29.06.2024, by the XVII Additional
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City Civil and Sessions Judge, Bengaluru (C.C.H.16), the
plaintiff is before this Court.
2. The appellant/plaintiff had filed a suit for bare
injunction restraining the defendants from interfering with the
Suit Scheduled Property. It is the case of the plaintiff that the
plaintiff is the absolute owner of the property bearing
Sy.No.64/1 to an extent of 6 guntas situated in
Cholanayakanahalli Village, Kasaba Hobli, Bengaluru North
Taluk and District and the plaintiff is in peaceful possession and
enjoyment of the property. The property was bequeathed by
her mother through a registered Will dated 23.09.2016. In
turn, the property was bequeathed in favour of her mother by
one Narayanappa, who is the brother of her mother and
thereafter, the plaintiff had filed P&SC No.32/2020 and an
order was passed on 19.01.2022. By virtue of the same,
plaintiff has become the absolute owner of the property and is
in peaceful possession and enjoyment of the property. The
defendants are unconnected with the suit schedule property
and without any manner of right and title, the defendants are
interfering with the peaceful possession and enjoyment of the
property. It is the case of the plaintiff that when highhandedly
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the defendants started interfering with the property, she
approached the jurisdictional Police to lodge a complaint. The
Police have not registered the complaint against the defendants
stating that the matter is civil in nature and adviced the plaintiff
to approach the Civil Court and get an order of injunction
against the defendants so that they will help the plaintiff. As
such, she has come up with the present suit. I.A. No.1 is filed
seeking injunction, where in reiterating the stand taken in the
plaint sought for injunction. The Defendants have filed their
detailed written statement. It is submitted that defendant
Nos.2 to 14 have sold the property in favour of three persons
and they have been put in possession of the property. They
have also stated that after they have sold the property the
purchasers have constructed a residential building in the said
premises and the plaintiff is not entitled for a relief of interim
injunction. Further, they are not made as parties to the suit.
Defendant No.1 is an agreement holder and defendant Nos.2 to
14 are the family members of Narayanappa. Defendant Nos.3
and 4 had filed the written statement, which is adopted by the
other defendants. They have disputed the Will i.e., alleged to
have been executed by Narayanappa in favour of the plaintiff's
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mother. It is their case that the Narayanappa is the absolute
owner of the property and being the legal heirs of
Narayanappa, they have succeeded to the said property. It is
stated that basing on the Will when the name of Gowaramma
was mutated in the revenue records, they have filed an appeal
before the Revenue Authorities and the appeal is allowed by
setting aside the entries in the name of Narayanappa.
Aggrieved thereby, the legal heirs of Narayanappa had filed a
revision. In the revision, the order passed by the appellate
authority came to be set-aside. Then the plaintiff's mother had
filed a Writ Petition before this Court i.e., W.P.No. 13942/2019,
which came to be disposed of on 19.11.2020, wherein the writ
petition is disposed off with liberty, subject to all just
exceptions in law, to the legal representative of the original
petitioner, Smt. Gowramma, to institute appropriate civil
proceeding. It is the case of the defendants that plaintiff has no
manner of right or title with regard to the suit schedule
property. The trial Court had considered the application filed
by the plaintiff and had dismissed the same. While dismissing
the said application, the trial Court has observed that with
regard to certain documents i.e., sale deed, the Will and other
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proceedings and with regard to the entries in the revenue
records, the Court has observed that while considering an
application for grant of injunction the Court will not only take
into consideration the basic elements relevant to existence of
prima-facie case, balance of convenience and irreparable injury,
but also has to take into consideration the conduct of the
parties while granting injunction which is an equitable relief.
The Court has observed that the partition suit that is instituted
by the defendants was not stated in the plaint and considering
all these aspects, the Court had dismissed the application and
felt that there is no prime- facie case in favour of the plaintiff.
Aggrieved thereby, the plaintiff is before this Court.
3. Learned senior counsel Sri. K.N.Phanindra, appearing
on behalf of the appellant/plaintiff submits that the Will is
executed in favour of the Plaintiff's mother on 06.03.1990. Ever
since the said date, the mother is in possession of the property.
In fact, the revenue entries were changed in her name. He
submits that she has also filed an application for probate and
an order was passed in her favour. It is submitted that they
have been in continuous possession of the property and the
respondents/defendants are interfering with the same. Hence,
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they have come up with a suit for bare injunction. The Court
had failed to consider the Will, the probate and other
documents that are in favour of the plaintiff. But, without
appreciating the evidence on record, had dismissed the
Interlocutory Application, which is filed for seeking interim
injunction. It is submitted that unless and until, an injunction is
granted, the plaintiff would be put to irreparable loss and
hardship.
4. Learned counsel appearing for defendant No.1
submits that he had filed caveat on behalf of defendant No.1
and he is appearing for all other defendants before the trial
court and he has instructions to file vakalat on behalf of
respondent Nos.2 to 14. Learned counsel submits that before
this Court, when plaintiff has questioned the revenue entries in
favour of Narayanappa the writ petition is disposed of,
permitting him to avail the appropriate remedies. Learned
counsel submits that when there is a dispute with regard to the
property, without the knowledge of the defendants, they have
obtained the probate. Now the defendants have filed a
miscellaneous petition to set-aside the order passed by the
Court. It is submitted that at every step, there are suppression
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and misrepresentation of facts and the trial Court had rightly
held that the plaintiff is not entitled for the equitable relief of
injunction. He submits that when they have filed the
photographs to show that the constructions were made and the
subsequent purchasers have already constructed the house,
that itself shows that the plaintiff is not in possession of the
property. When it is a suit for bare injunction and when the
defendant is denying the title of the plaintiff and when already
the purchaser is in possession of the property, the plaintiff is
not entitled for any injunction as prime facie his possession is
relevant for granting an order of injunction. He submits that the
Court had rightly considered and dismissed the petition and no
grounds are made out seeking interference with well considered
order passed by the trial Court.
5. Having heard the learned senior counsel for the
appellant and the counsel for the respondent, perused the
material on record. This is a suit for bare injunction. The source
of title according to the plaintiff is a Will executed by her
mother, and the source of title to the mother is Will executed
by her brother. Questioning the revenue entries in favour of her
brother, the defendants mother had filed an appeal and when
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there was an order in her favour, the same was carried in
revision by the defendants, and in the revision, the order of the
primary authority is restored. Against that, a Writ Petition is
filed. As rightly contended by the learned counsel for the
respondents, when there are disputes pending between the
parties, without the knowledge of the defendants, they have
filed a petition for probate and obtained a probate without
knowledge of the defendants. The whole dispute is with regard
to the Will i.e., executed by Narayanappa. According to the
defendants, the Will is a forged document. In respect of that,
they have already given a complaint to the Police, which is
registered and a charge sheet is also filed by the Police after a
full fledged Investigation. Plaintiff's mother had filed a suit for
partition. In that suit, the suit scheduled property in this suit is
not part of the subject matter of the said suit schedule. The
Court had taken note of all these aspects and has come to the
conclusion that the plaintiff has not come to the Court with
clean hands. When a person comes to the Court seeking an
injunction, he has to prove the prime-facie case, balance of
convenience and irreparable loss which are sine qua-non for
granting the relief of injunction. In this case, admittedly the
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plaintiff herself is not in possession of the property as the
defendants have filed the photographs to show that the
subsequent purchasers have raised the construction. Without
going into the other issues, that itself is a ground to hold that
the plaintiff is not entitled for injunction. In this case, the
plaintiff is not in the possession and the defendant is denying
the title of the plaintiff. In those circumstances, the plaintiff is
not entitled for the relief of injunction and the trial Court had
rightly dismissed the application and this Court finds no reason
to interfere with the order impugned. The trial Court shall
decide the suit on the merits of it without being influenced by
any of the observations made by this Court.
Accordingly, the appeal is dismissed. All pending IAs.,
in this appeal shall stand closed.
SD/-
(LALITHA KANNEGANTI)
JUDGE
KA
