Karnataka High Court
Sri D Ramaiah vs Sri Rangaswamy A G on 28 February, 2025
Author: K.Natarajan
Bench: K.Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE K. NATARAJAN
MISCELLANEOUS FIRST APPEAL NO.7421 OF 2024
BETWEEN:
1 . SRI. D. RAMAIAH
S/O LATE DASAPPA,
AGED ABOUT 68 YEARS,
2 . SMT. LAKSHMI
W/O D. RAMAIAH,
AGED ABOUT 65 YEARS,
3 . SMT. NAVYA
W/O ANOOP,
AGED ABOUT 40 YEARS,
4 . SRI. ANOOP
S/O B.A.KUMARSWAMY,
AGED ABOUT 40 YEARS,
ALL ARE R/AT NO.235,
6TH CROSS, RPC LAYOUT,
2ND STAGE, VIJAYANAGARA,
BENGALURU - 560 040.
...APPELLANTS
(BY SRI. SRINIVASA M R., ADVOCATE)
AND:
SRI. RANGASWAMY A G
S/O LATE GUDDADEGOWDA,
AGED ABOUT 54 YEARS,
R/AT NO.25, 10TH MAIN,
SHIVANAGAR, RAJAJINAGARA,
BANGALORE - 560 010.
...RESPONDENT
(BY SRI. VIJAY KUMAR K., ADVOCATE FOR
2
SRI. AMARNATH D., ADVOCATE FOR C/R)
THIS MFA IS FILED U/O 43 RULE 1(r) R/W SECTION 151 OF
CPC, AGAINST THE ORDER DATED:15.10.2024 PASSED ON
I.A.NO.1 IN OS.NO.4994/2024 ON THE FILE OF THE X ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU CCH-26,
ALLOWING THE IA.NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 OF
CPC.
THIS MISCELLANEOUS FIRST APPEAL HAVING BEEN HEARD
AND RESERVED FOR ORDERS ON 25.01.2025 THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE K.NATARAJAN
RESERVED FOR ORDERS ON: 25.01.2025
PRONOUNCED ON : 28.02.2025
CAV JUDGMENT
This appeal is filed by the appellants/defendant under order
43 Rule 1(r) of CPC for setting aside the order passed on I.A.No.1
dated 15.10.2024 by the X Additional City Civil and Sessions Judge,
Bengaluru in O.S.No.4994/2024, filed by the plaintiff under Order
XXXIX Rules 1 and 2 of CPC, for having granted the injunction
against the appellants.
2. Heard the argument of learned counsel for the appellants
and learned counsel for the respondent.
3. The appellants were the defendants and the respondent
was the plaintiff before the trial court. The ranks of the parties are
retained for the sake of convenience.
4. The case of the plaintiff before the trial court is that the
plaintiff filed the suit for perpetual injunction restraining the
defendants from interfering with the peaceful possession and
enjoyment of the properties, which is a commercial properties
bearing new Municipal No.67, PID No.27-62-67, measuring East to
West 34.6 feet and North to South 32.3 feet, totally measuring
1117.58 Sq.ft, together with passage way, measuring 3.3 x 66.6 ft.
towards East to West on the Northern side of the property,
measuring 219.78 Sq.ft, in all measuring 1337.36 ft, consisting of
Ground floor, measuring 600 sq.ft, first, second, third and fourth
floor measuring 2400 sq.ft, totally measuring 3000 sq.ft, of RCC
building situated at Gubbi Thotadappa Raod, Cottonpete Main road,
BBMP ward No.27, New Ward No.94, Bengaluru - 560053
(hereinafter referred to as "suit schedule property").
5. It is contended by the plaintiff that the plaintiff is absolute
owner of the enjoyment of the schedule property acquired under
the registered sale deed dated 18.10.2023 executed by one Shalini
Mallikarjuna and he is in peacefull possession and enjoyment of
schedule property. The khatha also has been transferred in the
name of the plaintiff, he is paying necessary taxes and he is having
the business in the name of "Hotel Kengeri Gateway Inn". He has
also obtained trade license and is paying taxes etc,. It is further
contended that the property was originally acquired by one
Somashankarappa under the decree in O.S.No.249/1979 and he
was allotted properties in the Schedule 'D' as item No.4, the final
decree is also registered on 03.09.1980. The property was
transferred in the name of Somashankarappa who died leaving
behind his wife Mukthamba, children Shalini, Aparna as legal heirs.
The wife and children of Somashankarappa entered into registered
partition on 12.11.2020, and they also entered into supplemental
partition deed and as per the supplemental partition deed, the share
of the Shalini Mallikarjuna, the vendor of the plaintiff, subsequent to
the supplemental partition, khatha was transferred in name of the
Shalini Mallikarjuna.
6. It is also the case of the plaintiff, that during the lifetime
of Somashankarappa leased out the property bearing No.67, old
No.82, measuring East to West 34.6 feet and North to South 32.3
feet in favour of one M/s.Sree R.K.Associates represented by its
partners D.Ramaiah and B.Krishnappa under the registered sale
deed dated 06.02.2006 for 27 years with monthly rent of Rs.5000/-
and 15% enhanced rent, once for every 5 years. On 12.12.2018,
the partners of M/S.R.K.Associates executed rent agreement with
plaintiff in respect of suit schedule property for a period of 5 years.
Subsequently, the defendant No.1 entered into partnership deed on
16.09.2021 as a new partner and one of the partner B.Krishnappa
was retired and B.Krishnappa sold 50% of his undivided share, right
over the properties in the name of the firm in favour of the plaintiff
by retirement deed in favour of defendant No.1 dated 13.02.2021.
The defendant No.1 executed partnership deed in favour of the
plaintiff. The plaintiff being the partner of the firm has surrendered
the lease in favour of Shalini Mallikarjuna on 04.11.2023. Further,
Shalini Mallikarjuna executed confirmation deed on 04.11.2023,
conforming the sale deed dated 18.10.2023, in favour of the
plaintiff. But the defendant do not have any manner of right, title,
interest over the property who is trying to interfere. Hence, he has
filed this suit, along with the suit an Interlocutory Application came
to be filed under Order XXXIX Rules 1 and 2 of CPC, which came to
be allowed, injunction has been granted against the defendants.
Hence, the defendants are before this court.
7. The learned counsel for the appellant has contended that
the order of the trial court is perverse and capricious, hence liable
to be set aside. The Somashankarappa being the owner of the
property, though he had leased out to the M/S.R.K.Entereprises in
the beginning, later he himself became the partner in the firm and
he has invested the suit schedule property in the firm, as per the
partnership deed dated 16.07.2009. Thereby, the suit schedule
property became the property of the firm. Thereby, B.Krishnappa
and Somashankarappa became the partners of the firm. The firm
purchased the adjacent properties on 06.04.2006 and leased out
properties of 1337.36 sqft. The property adjacent land purchased
was of 1362 sqft, totally 2699.36 sqft. The firm is the owner of the
property, without the knowledge of the firm, the partners
surrendered the leasehold properties in favour of children of
Somashankarappa and inturn he himself purchased, the properties
belonging to the firm. Therefore, the question of purchasing the
properties by the plaintiff does not arises. The properties cannot be
bifurcated, the firm is running the hotel business, Lodging etc.,.
Therefore, the injunction cannot be granted. Hence, prayed for
setting aside the same.
8. Per contra, learned counsel for the respondent supported
the order of the trial court contending that there are two different
properties, one is leased property, another is adjacent properties.
Therefore, the injunction is granted, no prejudice or no irreparable
loss is caused to the defendant's case. Hence, prayed for
dismissing the appeal.
9. Having heard the arguments, and perused the records, the
point that arises for my consideration are;
1. Whether, the plaintiff made out the prima facie
case in his favour?
2. Whether the balance of convenience lies in his
favour?
3. Whether, if the injunction is not granted will they
be put into hardship or irreparable loss?
4. Whether, the order of the trial court calls for
interference?
10. Perused the order and the records, on perusal of the
same, the case of the plaintiff is that Somashankarappa was the
owner of the properties, which is not in dispute, measuring East to
West 34.6 feet and North to South 32.3 feet, totally measuring
1117.58 Sq.ft, Subsequently it was leased out to the RK.Enterprise,
partnership firm, by entering into lease deed. The lease deed dated
06.02.2006 was entered into between the Somashankarappa and
M/s.Sree R.K.Associates which reveals the lease hold between the
Somashankarappa and M/s.Sree R.K.Associates the firm, at that
time, the property was vacant site, measuring 34.6 inches x 32.3
inches. The property plan also annexed for the purpose of putting
construction and as per the lease, the firm required to put up the
construction. After lapse of 27 years, if it is not renewed, the lease
of the building will be returned to one Somashankarappa, the owner
of the property.
11. In the meanwhile, subsequent to the lease agreement,
between the firm and Somashankarappa, the very
Somashankarappa was inducted as one of the partner of the firm
RK.Enterprise on 16.07.2009, where the firm was consisting of one
Ramaiah and Krishnappa were the partners. Ramaiah was holding
share capital of ₹1 lakh and Krishnappa was holding ₹1 lakh, but
the Somashankarappa was inducted as partner and he has invested
the land as Capital investment to the firm. The land which is leased
out to the firm as his investment. Thereby, the schedule property
in Sy.No.67 became the property of the firm. It is also seen from
the record that the Krishnappa said to be retired from the firm and
Ramaiah said to be continued as a partner, as per the deed of
retirement, dated 13.02.2021. In the meanwhile, there was a
rental agreement entered into between Ramaiah, Krishnappa and
the firm with Rangaswamy (plaintiff No.1) for letting out the rooms,
of the lodge in favour of one Rangaswamy. He became the tenant
under the firm and the rent was fixed for cellar, 1st, 2nd, 3rd, 4th and
5th were for different amounts. Totally 27 rooms consisting of
property in Sy.No.63, 64, 65, 66 and 67. Thereby, Rangaswamy
became the tenant under the firm. The said Somashankarappa said
to have died and there was no documents to show whether any
settlement was made to the legal heirs of Somashankarappa. On
the other hand, after the retirement of Krishanappa,
Rangaswamy/plaintiff No.1 was inducted as partner on 13.2.2021.
He was new partner to the firm. Later, the said Rangaswamy being
one of the partner surrendered the lease in favour of Shalini
Mallikarjuna who is the daughter of Somashankarappa and later the
said Shalini Mallikarjuna executed sale deed in favour of
Rangaswamy on 18.10.2023 for the schedule property bearing
No.67 and once again on 04.11.2023, the said Shalini Mallikarjuna
daughter of Somashankarappa entered into confirmation deed in
favour of Rangaswamy, which clearly reveals, once the property in
property bearing No.67 becomes the property of the firm and
Rangaswamy a newly inducted partner have no individual right to
surrender the property or lease in favour of the daughter of the
original lessor, Somashankarappa, he was the partner and the
property belongs to the firm. Behind back of the plaintiff Ramaiah,
the plaintiff Rangaswamy surrendered the lease property and he
himself entered into sale deed with daughter of the
Somashankarappa and thereafter he is claiming the right over the
schedule property and based on these documents, he has filed suit
against the defendant/appellant Ramaiah who is the part of the firm
and obtained order of injunction against other partner. Therefore,
the defendant challenged the granting of injunction in favour of the
plaintiff/Rangaswamy.
12. On perusal of the records it is not in dispute, the
schedule property was vacant site which belongs to
Somashankarappa and he has leased to RK Enterprises for 27 years
and a permission accorded for putting up construction for running
lodge by the RK Enterprises on 06.02.2006. It is also not in
dispute, subsequently the Somashankarappa himself was inducted
as partner in the partnership firm of RK Enterprises run by Ramaiah
and Krishnappa. The Somashankarappa was inducted as new
partner on 16.7.2009 and the suit schedule property in site No.67
was given to the firm as the investment from the side of
Somashankarappa. As such, Ramaiah, Krishnappa and
Somashankarappa became 3 partners of the firm. The capital of
Rs.1 lakh each belongs to Ramaiah and Krishnappa where it is
referred in clause 5 in the column of capital in partnership deed that
the land of the Somashankarappa was his investment in the firm.
Thereby, the schedule property belongs to the property of the firm.
It is also seen from the record, the building was put up by the firm
and it is also let out to the Rangaswamy for running the lodge. The
lodge consisting of 27 rooms. The schedule shown in the properties
was consisting of khatha No.63, 64. 65 and 67 with boundary of
both the properties. It appears Somashankarappa died and it was
decided to give Rs.5000/- to the legal heirs. The contention of the
plaintiff is that the Rangaswamy one of the partner of the firm said
to be purchased the site No.67 from the daughter of
Somashankarappa. That too, prior to surrendering the property of
the firm to the daughter of Somashankarappa and he has purchased
the same. The retirement of partnership deed reveals the Ramaiah
and Krishnappa were continued the partnership firm, after death of
Somashankarappa and it was decided to give Rs.5000/- to family
members of Somashankarappa. These documents reveals, the
property still stands in the name of firm RK Enterprises. Such being
the case, the plaintiff Rangaswamy said to be surrendered the lease
to daughter of Somashankarappa where the signature of the
defendant Ramaiah is not found. Such being the case, the question
of surrendering the lease, does not arises, which is still existing till
2033 and there is no question of surrendering the lease hold
building to Shalini Mallikarjuna by the plaintiff in an individual
capacity on 04.11.2023. Prior to that, he himself purchased the
same from the daughter of Somashankarappa on 18.10.2023, this
reveals prior to surrendering the property, he has purchased the
properties on 18.10.2023, thereafter he surrenders the properties
to the daughter of Somashankarappa, there is a contradiction
between these two documents which clearly shows that there is no
prima facie case made out by the plaintiff in his favour, that he is
lawful owner of the schedule property since the sale deed is prior to
the surrendering of the leased property to the daughter of the
Somashankarappa. First of all, the properties belongs to the firm's
property which was brought by Somashankarappa and till
settlement, the said property remains as firm's properties.
Therefore, he being partner of the said firm, cannot purchase the
said properties from the legal heir of Somashankarappa and it
appears after purchase by sale deed 18.10.2023, he has realised
the mistake that the property belongs to firm. Thereafter, he has
surrendered the property to the daughter of Somashankarappa on
4.11.2023. Therefore, it cannot be said plaintiff is in lawful
possession and enjoyment of the properties in his individual
capacity, the sale deed itself is invalid.
13. As regards to the balance of convenience, the defendant
No.1 being partner of the firm, the plaintiff also partner of the firm,
the properties belong to the firm until dissolution of the firm, in
accordance with law and sharing the profit and loss apart from the
properties of the firm, the question of purchasing the schedule
property by the plaintiff,without expiry of the lease period cannot be
acceptable. Therefore, there is no balance of convenience in favour
of the plaintiff.
14. On the other hand, the firm was already put up
construction of property, the rooms were existing, 4 floors building
27 rooms and it was let out to the plaintiff, such being the case, if
the injunction is granted on behalf of the plaintiff, there will be
irreparable loss caused to the firm and defendant, but no loss would
cause to the plaintiff. Such being the case, the question of granting
injunction in favour of the respondent/plaintiff does not arises. The
counsel for the appellant rightly contended that the order of the trial
court is capricious and perverse, not properly appreciated the
documents on record, since the plaintiffs are already having the site
No.63, 64, 65 and 66 which is adjacent to the site No.67, the
present disputed properties and thereafter they put up
constructional and letting out the lodge. Such being the case,
without going for full fledged trial, the plaintiff is not entitled for
injunction in his favour. Therefore, the order of the trial court
granting injunction in his favour requires to be set aside.
Accordingly, the appeal is allowed.
The order of the trial court in I.A.No.1 filed under Order
XXXIX Rules 1 and 2 of CPC granting injunction, is hereby set aside.
Sd/-
(K.NATARAJAN)
JUDGE
AKV
CT:SK
