Karnataka High Court
Mr. Krishna Shetty vs Mrs. Divyashree on 28 February, 2025
Author: K.Natarajan
Bench: K.Natarajan
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NC: 2025:KHC:8803
MFA No. 8501 of 2024
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. 8501 OF 2024 (CPC)
BETWEEN:
MR. KRISHNA SHETTY,
S/O PRABHAKARA SHETTY,
AGED ABOUT 39 YEARS,
R/AT KEREKODI HOUSE,
KUTRUPADY POST AND VILLAGE,
KADABA TALUK, D.K-574221.
APPELLANT
(BY SRI. ANIKETH KV., ADVOCATE FOR SRI. SACHIN BS)
AND:
1. MRS. DIVYASHREE,
D/O GANGADHARA NAIK,
AGED ABOUT 22 YEARS.
2. MR. GANGADHARA NAIK,
AGED ABOUT 61 YEARS,
Digitally
signed by S/O BABU NAIK,
NIRMALA
DEVI
Location:
BOTH ARE R/AT AGRASAALE HOUSE,
HIGH KADABA POST AND VILLAGE,
COURT OF
KARNATAKA KADABA TALUK, D.K.- 574221.
3. MR. RADHAKRISHNA KS,
S/O SRINIVASA MOODAMBADITHAYA,
AGED ABOUT 55 YEARS,
R/AT KOOVECHAR,
BAJATHOOR VILLAGE AND POST,
PUTTUR, D.K-574201.
RESPONDENTS
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NC: 2025:KHC:8803
MFA No. 8501 of 2024
(BY SRI. G RAVI SHANKAR SHASTRY., FOR C/R1 AND C/R2
ADVOCATE)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 12.11.2024 PASSED ON I.A. NO. 2
IN O.S.NO. 15/2023 ON THE FILE OF THE PRINCIPAL SENIOR
CIVIL JUDGE AND ACJM, PUTTUR, DAKSHINA KANNADA,
ALLOWING THE I.A. NO.2 FILED UNDER ORDER XXXIX RULE 1
AND 2 READ WITH SECTION 151 OF CPC AND ETC,.
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 under Order 43 Rule
1(r) of the Code of Civil Procedure for challenging the granting
of injunction against the appellant under Order 39 Rule 1 and 2
r/w Section 151 of CPC filed by the respondent / plaintiff.
2. For the sake of convenience, the parties herein are
referred as per their rank before the Trial Court.
3. Heard learned counsel Sri. Aniketha KV, appearing
for Sri. Sachin BS, for the appellant and learned counsel Sri. G
Ravishankar Shastry, for the caveat / respondent Nos.1 and 2.
4. The case of the plaintiff before the Trial Court is
that the plaintiff has filed a suit for declaration injunction and
cancellation of sale deed dated 06.07.2020 on the ground that
value of the suit property is more than `60,00,000/- but
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defendant Nos.1 and 2 in collusion got the sale deed for
`3,50,000/-, as plaintiff No.1 studying in the college belonging
to defendant No.2 where defendant No.1 is working under him.
It is also contended that the previously defendant No.2 and
plaintiffs are entitled for agreement of sale for selling the
property for `43,00,000/-. Defendant No.2 has filed the case
against the plaintiffs and their mother. The case said to be
compromised on 18.12.2021 where every plaintiffs has signed
the sale deed which was sought for declaration and cancellation
as void. Defendant No.1 given `10,00,000/- to defendant No.2
at the same time `10,00,000/- was given to plaintiff No.1 and
relinquished here right. Subsequently, she is also party to the
compromise. Therefore, the documents are created one over
the plaintiffs. Hence, she filed the suit along with interlocutory
application seeking direction not to alienate and not to create
any third party interest or not put up an change in nature of
the suit schedule property.
5. The defendants / appellants have appeared and
filed statement of objections in written statement contending
that defendant No.2 has filed suit against plaintiffs. The
plaintiffs and their mother agreed to sale the property to
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defendant No.2 and the suit for compromise was filed.
Defendant No.2 has paid `10,00,000/- to the plaintiffs the
same was referred in the compromise application which was
subsequently noted. Where in the plaintiffs signed the sale
deed as well as the compromise application. There is no prima
facie case made out against the plaintiffs, such being the case
granting injunction is not correct. The plaintiffs were paid
money and the property was already delivered to the
defendants by the plaintiffs. Such being the case granting
injunction is not correct. Hence, prayed for setting aside the
order.
6. The Trial Court considering the same, granted
injunction against the defendants not to create any third party
interest or alienate the suit schedule property. Hence,
defendants are before this Court.
7. Learned counsel for the appellants has supported
the pleading in the suit and also contended that the entire
amount issued by the plaintiffs as well as the family members
but inspite of it they filed the suit. Even the suit for cancellation
of sale deed have already been filed, such being the case until
disposal of the suit plaintiffs are not entitled for any injunction.
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8. Per contra, learned counsel for the respondents
/plaintiffs contended that plaintiff No.1 studying under
defendant No.2 who is running college under correspondence,
defendant No.1 is a financier working under defendant No.2.
The plaintiffs and the mother along with defendant No.2 have
entered into agreement of sale who have paid `43,00,000/- in
the year 2015. Such being the case, the property value is more
than `60,00,000/- but sale deed refers to only `3,50,000/-. But
the said amount was withdrawn by the defendants in the bank.
Therefore, interlocutory application is field for the bank
manager to prove there transaction details. No amount has
been credited to the plaintiffs account under the sale deed even
compromise was held between them, after one year five
months of the sale deed. Such being the case, there is a prima
facie against the plaintiffs property allowed to create third party
interest and to alienate the property, where the plaintiffs will be
put into hardship and loss, which cannot be compensated.
Hence, prayed for dismissal of the appeal.
9. Having heard the arguments and perused the
records including the records of the Trial Court.
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10. The plaintiffs though executed sale deed on
06.07.2020, the sale consideration shown only `3,50,000/-.
The document No.8 produced by the plaintiffs shows
`3,50,000/- was withdrawn as self on 01.10.2020 in three
months. It is submitted by the respondents counsel the very
defendants have withdrawn the same, as the plaintiff was
studying in the college belongs to the defendant No.2.
However, it is a matter of trial. The agreement of sale entered
between defendant No.2 and the plaintiff along with their
mother in the year 2015, the property value was `43,00,000/-
as per the agreement of sale, the same was compromised after
the sale deed. But the sale consideration was mentioned only
`3,50,000/-. Even it is not a distractive price not even 10% of
the `43,00,000/-. The copy of the compromise application
reveals the agreement of sale dated 09.04.2015 the plaintiffs
are agreed to purchase the same for `43,00,000/-. Such being
the case, it is clear that a case on behalf of the plaintiffs that
the property value must be more than `50,00,000/- or
`60,00,000/- as it is `43,00,000/-in the year 2015 and the sale
deed was created only for `3,50,000/-. That apart the plaintiff
is studying under the school of defendant No.2. The defendant
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No.1 paid the amount to the plaintiffs through defendant No.2.
Therefore, there is no prima facie made out on behalf of the
plaintiffs, the very sale price is a doubtful and receiving the
amount under sale deed and it was withdrawn by somebody
which has to be proved by the plaintiffs. Such being the case, if
the properties allowed to the defendants, there is a chances of
creating third party interest or putting up of any construction.
Such being the case, by considering the same the Trial Court
rightly passed the order against the defendants not to alienate
or create any third party interest or put up any construction on
the schedule property. Considering the same, this court do not
find any error in the order of the Trial Court. As the parties are
required to maintain the status quo of the suit schedule
property.
Appeal is dismissed as being devoid of merits.
The Trial Court shall not be influenced by any of the
observations made by this Court.
Sd/-
(K.NATARAJAN)
JUDGE
