Karnataka High Court
Smt. Nagarathnamma vs Smt. Mamatha on 9 September, 2024
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NC: 2024:KHC:36835
MFA No. 4404 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
MISCELLANEOUS FIRST APPEAL NO. 4404 OF 2024 (CPC)
BETWEEN:
1. SMT. NAGARATHNAMMA
D/O. MUNIRAMAIAH @ MUNIRAMREDDY,
AGED ABOUT 72 YEARS,
R/AT. NO. 2GC, 112, 2ND G CROSS,
OMBR LAYOUT, NEAR VINCENT POULTRY CHURCH,
BENGALURU-560 043.
2. SMT. JAYALAKSHMI
@ JAYAMMA,
D/O. LATE MUNIRAMAIAH @ MUNIRAMREDDY,
AGED ABOUT 68 YEARS,
R/AT NO. 1246, 3RD CROSS,
NEW THIPPASANDRA, HAL IIIRD STAGE,
NEAR GANESH TEMPLE,
BENGALURU- 560 075.
...APPELLANTS
(BY SRI.VISWANATHA SETTY V., ADVOCATE)
Digitally
signed by AND:
SUVARNA T
Location: 1. SMT. MAMATHA
HIGH D/O. MADAREDDY,
COURT OF
KARNATAKA AGED ABOUT 36 YEARS,
2. SRI. KIRAN,
S/O. MADAREDDY,
AGED ABOUT 34 YEARS,
BOTH ARE R/AT. NO. 50,
UDAYANAGAR, TIN FACTORY,
NEAR FATHIMA SCHOOL,
BEHIND KRISHNA REDDY BUILDING,
GANESH TEMPLE ROAD, DORAVANINAGAR POST,
BENGALURU -560 016
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MFA No. 4404 of 2024
3. SRI SRINIVAS
5/0 LATE SIDDAMMA MUTHAPPAREDDY,
AGED ABOUT 54 YEARS,
R/AT. NO. 52, 1ST MAIN, 1ST CROSS,
BENNIGANAHALLI, OLD MADARAS ROAD,
BENGALURU -560 016
4. SMT. MEENA,
W/O SRI SATHYA NARAYANA,
AGED ABOUT 50 YEARS,
D/O. LATE SIDDAMMA MUTHAPPAREDDY,
R/AT. 302, VARS APARTMENT,
2ND FLOOR, PAI LAYOUT,
BENGALURU-560 016
5. SRI. SIDDAREDDY
S/O. LATE MUNIRAMAIAH @ MUNIRAMREDDY
AGED ABOUT 74 YEARS,
R/AT. NO. 60, YARAMMA NILAYA,
2ND FLOOR, 1ST MAIN, 1ST CROSS,
BENNIGANAHALLI, OLD MADARAS ROAD,
BENGALURU- 560 016.
6. SMT. RADHAMMA,
W/O. LATE MUNIREDDY,
AGED ABOUT 58 YEARS,
R/AT. NO. 60, YARAMMA NILAYA,
1ST FLOOR, 1ST MAIN, 1ST CROSS,
BENNIGANAHALLI, OLD MADARAS ROAD,
BENGALURU- 560 016.
7. SRI. RUPESH KUMAR,
S/O. LATE MUNIREDDY,
AGED ABOUT 38 YEARS,
R/AT. NO. 202, J.S. ESTATE APARTMENT,
8TH CROSS, RAMAMURTHY NAGAR,
BENGALURU- 560 036.
8. SRI. NAVEEN KUMAR,
S/O. LATE MUNIREDDY,
AGED ABOUT 36 YEARS,
R/AT. NO. 60, YARAMMA NILAYA,
1ST FLOOR, 1ST MAIN, 1ST CROSS,
BENNIGANAHALLI, OLD MADRAS ROAD,
BENGALURU- 560 016.
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MFA No. 4404 of 2024
9. SRI. LIKESH KUMAR,
S/O. LATE MUNIREDDY,
AGED ABOUT 34 YEARS,
R/AT. NO. 60, YARAMMA NILAYA,
1ST FLOOR, 1ST MAIN, 1ST CROSS,
BENNIGANAHALLI, OLD MADARAS ROAD,
BENGALURU- 560 016.
10. THE SPECIAL LAND ACQUISITION OFFICER,
METRO-A, KIADB,
NO. 14/3, 1ST FLOOR,
MAHARSHI ARAVIND BHAVAN,
NRUPATHUNGA ROAD,
BENGALURU- 560 001.
...RESPONDENTS
(BY SRI.RAJESJWARA P.N., ADVOCATE FOR C/R-5, 6, 7 & 9)
THIS MFA FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 10.04.2024 PASSED ON I.A. NO.1 IN
O.S.NO. 6778/2021 ON THE FILE OF THE VII ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-19), DISMISSING
THE I.A. NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 READ WITH
SECTION 151 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 and 2 in
O.S.No.6778/2021 dated 10.04.2024 by the VII Addl. City Civil
and Sessions Judge, Bengaluru, the appellant/plaintiff is before
this court.
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2. The plaintiff had filed a suit for partition, the appellants
are sisters and the defendants No.1 to 4 are their sister's
children. Defendant No.5 is the brother and defendant No.6 is
deceased brother's wife and their children. Defendant No.10 is
the Land Acquisition Officer, KIADB. The other relief that is
sought is not to disburse the amount. By the time the
application came to be heard as the money is already
disbursed, court has held that the said application has become
infructuous. It is the specific case of the plaintiff that the
plaintiff and defendants constituted a Hindu undivided family
and they are the descendants of the common
ancestor/propositus by name Muniramaiah @ Muniramareddy.
He had purchased the properties through various sale leads.
He has also purchased some of the properties in the name of
his children, though it is standing in the name of his children,
thats a joint family property. The father of the appellants died
intestate on 25.12.2002. Till the death of Muniramaiah and also
after the death of Muniramaiah, the relationship between the
plaintiffs and the defendants were very cordial. After the
demise of Muniramaiah, defendant No.5 by taking advantage of
illiteracy, innocence and faith they imposed in him has got
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signatures of plaintiff on certain papers, later he started
neglecting the plaintiffs. They came to know that the
defendants are making attempts to withdraw the amount of
compensation in the acquisition proceedings in respect of
survey No.3/1 which is the suit schedule property Item.No.1.
When they have demanded for partition and the same was
refused, they have filed their instant petition and the
defendants have filed their written statement. All the
defendants have stated that there was a registered partition
deed dated 11.04.2019 as per the same, some properties were
allotted to appellants.
3. It is the case of the defendant No.5 that some of
the properties are the self acquired properties of defendant
No.5. Thereafter, the plaintiffs had sought an amendment
seeking a declaration that registered partition deed is not
binding on them. They have stated that they are not aware of
the said partition deed as and when it is requested by the
brothers they have been signing on some documents or the
other and by suppression and misrepresentation this partition
deed came to be registered and it is not binding on them. The
trial court by order impugned had dismissed the I.A.No.2
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restraining the defendants from alienating the property on the
ground that the plaintiffs have suppressed the important factor
of the registered partition deed dated 11.04.2019. The court
has also observed that though it was pleaded that the same
was obtained by way of fraud no complaints were registered for
playing such fraud either against defendant No.5 or anybody
else who are parties in the said document. The court observes
that the existence of registered partition deed in respect of the
suit scheduled property forces the court to arrive at the
conclusion that the plaintiffs have not made out prime facie
case for grant of temporary injunction as sought in I.A.No.1
i.e., restraining the defendants from alienating the suit
schedule properties. The court also felt that there is no balance
of convenience in favour of the plaintiff and no hardship will be
caused if the applications are not allowed and accordingly
dismissed the application. Aggrieved thereby the
appellant/plaintiff is before this court.
4. Learned counsel for the appellant submits that the
suit schedule property is a joint family property and all of them
have been enjoying the property. Suddenly when the
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defendants have refused to partition, the property then they
have come with the present suit. He submits that they are not
aware of the registered partition deed, so question of not
disclosing the said fact does not arise and the court on that
ground ought not to have dismissed the application. He submits
that if the properties are alienated and the third party rights
are occurred, unnecessarily, it will give rise to multiplicity of
proceedings. Learned counsel further submits that the court
had failed to appreciate the contentions raised on behalf of the
plaintiff and dismissed the application. It is submitted that the
appellants are illiterate senior citizens and the 5th defendant
had played fraud on the plaintiffs and obtained such a partition
deed which they have already sought a declaration that the
same is not binding on them. Learned counsel for the appellant
submits that the trial court ought to have granted injunction as
prayed for and in fact, as the same is not granted, it is causing
irreparable loss and hardship to the plaintiffs.
5. Learned counsel appearing for the defendant
Nos.5,6,7 and 9 submits that suppressing the vital fact that
there is a registered partition deed the plaintiffs have filed the
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suit. He submits that in fact misrepresentation, fraud played by
the plaintiffs in filing the suit without disclosing the registered
document. It is submitted that they have stated in the written
statement that some of the properties are the self acquired
properties. It is stated that the plaintiff has not made out the
prime facie case seeking injunction particularly in the light of
the fact that there is a registered document. Unless and until
the court comes to the conclusion that such a document is
obtained by fraud, the appellant is not entitled for injunction
and there is no prime facie case in his favour and there are no
grounds to interfere with the well considered order passed by
the trial court.
6. Having heard the learned counsels on either side,
perused the entire material on record. Initially the suit was for
partition. The sisters who are aged 68 years and 64 years are
seeking partition of the joint family properties. According to
them, the suit schedule properties belongs to the father of the
plaintiffs and the defendants and some of the properties are in
the name of the defendant brothers, but it is purchased by the
father, as such they were treated as joint family properties.
According to them, the father died in the year 2002, but all
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through the properties were in the possession and enjoyment
of all the joint family members. When the defendants have
refused to partition the property, they have filed the suit and
the relief that is sought is injunction restraining the defendants
from alienating the property. When an application is filed
seeking injunction, the plaintiff has to make out a prima facie
case. The defendants have filed their written statement and
stated that there is a registered partition deed. As far as the
contents of the said documents or the signature on the said
documents is not denied by the defendant. Just they have
taken a stand that some documents they have signed and they
have been signing like that from several years, because of the
affection, confidence and the trust they have towards their
brothers. There is a registered partition deed which supports
the case of the defendant. Now whether the said partition deed
is executed? Whether it is binding on them or whether it is
obtained by suppression and by playing fraud? all these things
have to be decided by the court after a full fledged trial. At this
point of time, one important factor is they do admit that some
of the suit schedule properties are in the name of the
defendants and it is their case that the properties are
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purchased by their father but in the name of the defendants
and the defendants submits that it is a self acquired property
and even on that count also, at this stage the plaintiff is not
entitled for any relief of injunction and the trial court had
rightly dismissed the petition. This court finds no reasons to
interfere with the well considered order passed by the trial
court.
Accordingly, the following:
ORDER
i. The appeal is dismissed.
ii. All IA's in the appeal shall stand closed.
SD/-
(LALITHA KANNEGANTI)
JUDGE
TS
