Karnataka High Court
Sri Krishnappa vs Sri Sonnappa on 4 February, 2025
Author: K.Natarajan
Bench: K.Natarajan
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NC: 2025:KHC:4977
MFA No. 8841 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
MISCELLANEOUS FIRST APPEAL NO. 8841 OF 2023 (CPC-)
BETWEEN:
SRI. KRISHNAPPA
S/O LATE MARAPPA,
AGED ABOUT 58 YEARS,
R/AT BAGALUR VILLAGE,
T. AGRAHARA VILLAGE,
YELIYUR POST,
CHANNARAYAPATNA HOBLI,
DEVANAHALLI TALUK,
BANGALORE DISTRICT - 562 110.
...APPELLANT
(BY SRI. VENKATACHALAPATHI S K., ADVOCATE &
SRI. A. VENUGOPAL, ADVOCATE)
AND:
1. SRI. SONNAPPA
S/O LATE MARAPPA,
Digitally signed by AGED ABOUT 65 YEARS,
VEDAVATHI A K
Location: High
Court of 2. SRI. ANIJINAPPA
Karnataka
S/O LATE MARAPPA,
AGED ABOUT 62 YEARS,
BOTH ARE R/AT T.AGRAHARA VILLAGE,
YELIYUR POST,
CHANNARAYAPATNA HOBLI,
DEVANAHALLI TALUK,
BANGALORE DISTRICT - 562 110.
...RESPONDENTS
(BY SRI. PRASANNA V R., ADVOCATE FOR R-1;
VIDE ORDER DATED:28/11/2024 NOTICE TO R2
DISPENSED WITH)
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MFA No. 8841 of 2023
THIS MFA IS FILED U/O 43 RULE 1(r) R/W SECTION 151
OF CPC, AGAINST THE ORDER DATED:09.10.2023 PASSED ON
I.A.NO.II IN OS.NO.10/2023 ON THE FILE OF THE III
ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, DEVANAHALLI,
C/C OF II ADITIONAL SENIOR CIVIL JUDGE AND JMFC,
DEVANAHALLI, DISMISSING THE I.A.NO.2 FILED UNDER
ORDER 39 RULE 1 AND 2 OF CPC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE K.NATARAJAN
ORAL JUDGMENT
This appeal is filed by the appellant/plaintiff under Order
43 Rule 1(r) of CPC., for setting aside the order of the Trial
Court in O.S.No.10/2023 dated 09.10.2023, for having rejected
the application i.e., IA No.2 filed under Order XXXIX Rule 1 and
2 of CPC.
2. Heard the argument of both the counsels.
3. The case of the appellant is that, the appellant/plaintiff
has filed the suit for partition and separate possession in
respect of 30 guntas of land bearing Sy.No.55/11 said to be
granted occupancy right in the name of the respondent
No.1/defendant No.1 and as per their oral partition three
brothers divided 10 guntas each. But the respondent No.1 got
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mutated his name in the revenue records. Subsequently, the
defendant No.2/respondent No.2 said to be filed appeal and
considered the same the Assistant Commissioner cancelled the
entries of the RTC which made only in the name of the
defendant No.1. The respondent No.1 being aggrieved
preferred appeal before the Deputy Commissioner Bengaluru
Rural District, which said to be rejected by the Deputy
Commissioner. Thereafter the defendant No.1 has filed the Writ
Petition before the High Court, this court set aside the orders of
the Tahasildar and directed the parties to work out the remedy
in the Civil Court. Accordingly, the plaintiff filed the suit for
partition and separate possession in respect of the schedule
property.
4. The appellant/plaintiff also filed IA No.2 under Order
XXXIX Rule 1 and 2 of CPC., directing the defendant No.1 not
to alienate or create any third party interest over the schedule
property, which came to be dismissed. Hence, the plaintiff filed
the appeal before this court for setting aside the order.
5. Learned counsel for the appellant submits that there
was landed property among the family members, they said to
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be partitioned on 26.08.1996 and this property not included in
the partition. Subsequently, the occupancy right was granted
by the State in the name of the defendant No.1, who is the
kartha of the family. And as per the oral partition 10 guntas of
each shared by all three brothers. Later respondent No.1
denied the same by filing the application for changing the
khatha. Therefore, the plaintiff constrained to file the suit for
partition of the schedule property and in order to protect the
interest of the parties the property shall be protected by
granting injunction not to alienate the schedule property but
the Trial Court committed an error in dismissing the
application. The plaintiff made out prima facie case in his
favour and balance of convenience lies in his favour, if the
temporary injunction is not granted irreparable loss will be
caused to the plaintiff. Hence, prayed for allow the appeal.
6. Whereas the respondent counsel contended that there
was a partition in the year 1996, which is registered partition,
there is no reference in the partition deed that the suit land
was cultivating jointly, or in joint possession or it will shared in
future. But the application filed by the defendant No.1 only in
the year 1999 and the same was granted by the State in favour
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of the defendant No.1 on 25.01.2022. The defendant
No.2/respondent No.2 filed appeal and considering the same
the Assistant Commissioner cancelled the entries in the RTC
which made only in the name of the defendant No.1. The
respondent No.1 being aggrieved preferred appeal before the
Deputy Commissioner, Bengaluru Rural District, which said to
be rejected by the Deputy Commissioner. Thereafter the
defendant No.1 has filed the Writ Petition before the High
Court, this court set aside the orders of the Tahasildar and
directed the parties to work out the remedy in the Civil Court.
However, it is also contended by the respondent counsel that
respondent already filed suit in OS.No.562/2012, before the
Civil Judge, JMFC, Devanahalli, where this appellant also party,
and contesting the matter by denying the relationship by
suppressing the fact and filed the present suit. If at all any
claim over the property they could have file a counter claim in
the same suit or claiming the any share in the property,
without doing so suppressing the fact by filing the suit trying to
grab the order which is not permissible. Hence, prayed for
dismissing the appeal.
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7. Having heard the arguments and perused the records
which reveals that the relationship between the appellant and
the defendants is not in dispute. It is also not in dispute that
there was a partition among all three brothers on 26.08.1996,
which is a registered partition between them. It is also
admitted there is no reference in the registered partition but
the suit schedule property is in occupation of the family
members since long and there is no right granted by the State
in their favour and any future partition. Admittedly, by
producing some document the defendant No.1 got mutated
their name in the revenue record which was challenged by the
respondent No.2 and got set aside the name of the respondent
No.1 in the RTCs. Of course the right of the property should be
work out by the Civil Court by filing the appropriate suit.
However, while filing the suit by the plaintiff in OS.No.10/2023
before the Trial Court he has not mentioned the suit already
filed by the respondent in OS.No.562/2012, for declaration and
injunction, where the plaintiff also party in the said suit and it is
contesting. Admittedly, these plaintiff has not claimed any
counter claim by way of partition in the said suit, they
contested by denying the relationship of the parties. The suit
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already filed by the respondent, all the revenue records
mutated in the name of the respondent No.1 and occupancy
right also granted in the name of the respondent
No.1/defendant No.1. Such being the case there is no prima
facie case made out by the plaintiff in his favour at the this
stage in order to grant any relief.
8. Apart from that when the respondent already filed the
suit, they are defending the case in the earlier suit and they are
not stated about the said fact in the present suit. And as soon
as they filed a fresh suit and it is claimed that the occupancy
right was granted in the name of the respondent No.1 who is
the kartha of the family. Therefore, the plaintiff is entitle for the
share. But it should not be forgotten the joint family was
already severed by way of registered partition in the year 1996
itself. When the application came to be filed by the respondent
in the year 1999 and occupancy right granted in the year 2002.
Such being the case there is no balance of convenience lies in
favour of the plaintiff for granting the relief.
9. In respect of the irreparable loss, when the partition
already held between the parties and if at all any claim over the
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property, the plaintiff required to prove the case in the court of
law that the land was granted in favour of the joint family but
not the individual name of the defendant No.1. And the land is
sold or alienated it will cause irreparable loss. When the
property was already partitioned between the parties, there is
no reference in the partition deed. Such being the case even if
the injunction is not granted it cannot be said irreparable loss
will be caused to the defendant No.1. That apart a case is
already pending before the Civil Court in OS.No.562/2012, such
being the case it is not the fit case for granting any injunction
as sought by the plaintiff. Therefore, considering the aspect the
Trial Court rightly dismissed the application without granting
any injunction. Therefore, nothing to interfere in the order
passed by the Trial Court. There is no perverse in the order to
interfere by this court. Hence, the appeal is devoid of merits.
Accordingly, the appeal is dismissed.
Sd/-
(K.NATARAJAN)
JUDGE
CT:SK
