Karnataka High Court
Shri Lokesh T L vs Smt B Padmavathi on 7 March, 2025
Author: K.Natarajan
Bench: K.Natarajan
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MFA No. 2289 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
MISCELLANEOUS FIRST APPEAL NO.2289 OF 2024 (CPC)
BETWEEN:
SHRI. LOKESH T L
S/O SHRI. LAKSHMAPPA,
AGED ABOUT 49 YEARS,
RESIDING AT 'SKANDA NIVASA' NO.2743,
'E' BLOCK, 1ST FLOOR,
OPP. TO ROTTI MANE,
SAHAKARANAGAR,
BENGALURU - 560 092.
...APPELLANT
(BY SRI. SURESH S. LOKRE, SENIOR COUNSEL FOR
SRI. SHRAVAN S. LOKRE, ADVOCATE)
AND:
1. SMT. B. PADMAVATHI
Digitally signed
by NIJAMUDDIN D/O LATE SHRI. K. V. BYRE GOWDA,
JAMKHANDI W/O SHRI M. VENKATESH,
Location: HIGH AGED ABOUT 67 YEARS,
COURT OF RESIDING AT NO.432, 8TH MAIN,
KARNATAKA 1ST CROSS,
SWIMMING POOL EXTENSION,
SARASWATHIPURAM,
MYSORE - 570 009.
2. SHRI B. RAVI GOWDA
S/O LATE SHRI K. V. BYRE GOWDA,
AGED ABOUT 63 YEARS,
RESIDING AT NO.326, 15TH CROSS,
2ND FLOOR,
SADASHIVANAGAR, UPPER PALACE ORCHARDS
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MFA No. 2289 of 2024
OPP. SADASHIVANAGAR CLUB,
BENGALURU - 560 080.
3. SMT. YASHODAMMA
W/O LATE SHRI K. V. BYRE GOWDA,
AGED ABOUT 93 YEARS,
RESIDING AT NO.326, 15TH CROSS,
2ND FLOOR,
SADASHIVANAGAR,
UPPER PALACE ORCHARDS,
OPP. SADASHIVANAGAR CLUB,
BENGALURU - 560 080.
4. SMT. BHARATHI DASE GOWDA
D/O LATE K. V. BYRE GOWDA,
W/O LATE SRI DASE GOWDA,
AGED ABOUT 75 YEARS,
RESIDING AT NO.201,
ALLAWAH ROAD,
CHUWAR QLD 4306,
AUSTRALIA.
5. M/S CITRUS VENTURES PVT. LTD.
A PRIVATE LIMITED CO. DULY REGISTERED
UNDER THE COMPANIES ACT,
HAVING ITS REGISTERED OFFICE AT
NO.106/10-11-12,
AMRUTHAHALLI, BYTARAYANAPURA,
BENGALURU - 560 092.
REPRESENTED BY ITS MANAGING DIRECTOR
SHRI BHARATH RAO.
...RESPONDENTS
(BY SRI. PARASMAL B @ PARAS JAIN, ADVOCATE FOR R1;
DR. P.M.NARAYANASWAMY, ADVOCATE FOR R3;
SRI. G.S. PRASANNA KUMAR, ADVOCATE AND
SMT. JYOTHI S., ADVOCATE FOR R5;
VIDE ORDER DATED:07/11/2024, NOTICE TO R4 IS
DISPENSED WITH)
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MFA No. 2289 of 2024
THIS MFA IS FILED U/O 43 RULE 1(r) R/W SECTION 151
OF CPC, AGAINST THE ORDER DATED:20.02.2024 PASSED ON
I.A.NO.1 IN OS.NO.3072/2021 ON THE FILE OF THE IX
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
CCH-5, ALLOWING THE APPLICATION FILED UNDER ORDER 39
RULE 1 AND 2 R/W SECTION 151 OF CPC.
THIS MISCELLANEOUS FIRST APPEAL HAVING BEEN
HEARD AND RESERVED FOR JUDGMENT ON 28.01.2025 THIS
DAY, THE COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE K.NATARAJAN
RESERVED FOR ORDERS ON: 28.01.2025
PRONOUNCED ON 07.03.2025
CAV JUDGMENT
This appeal filed by the appellant /defendant No.4
under Order XLIII Rule 1 of CPC., for setting aside the
order passed by the Addl. City Civil and Session Judge,
Bangalore, in OS.No.3072/2021 dated 20.02.2024 for
having granted injunction in favour of the plaintiff under
Order 39 Rule 1 and 2 of CPC.
2. Heard the arguments of both the counsels.
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3. The appellant was the defendant No.4, the
respondent No.1 was the plaintiff, the respondent Nos.2 to
4 were the defendant Nos.1 to 3 before the Trial Court.
4. The ranks of the parties before the Trial Court are
retained for the sake convenience.
5. The case of the plaintiff before the trial court is
that the plaintiff has filed the suit for partition of the suit
schedule properties by metes and bounds and to declare
the plaintiff is entitle to 25% of share i.e., 1/4th share in
the owners 41% of the development carried out in item
No.1 and 1/4th shares in various items of the schedule
properties and also declare the release deed, partition are
all not binding on the plaintiff and also bifurcation of the
share in the family properties and to deliver the vacant
possession of the property or share of the sale price or
compensation amount or TDR, wherever applicable and
various relief in prayer (A) to (T).
6. Along with the suit the plaintiff also filed IA under
Order XXXIX Rule 1 and 2 of CPC., for seeking injunction
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against the defendants. The defendants also filed written
statement by denying all the averments and also
contended that there was already partition between the
family. The appellant already relinquished the right in
favour of other family members by receiving other
properties as well as cash, by suppressing the same the
suit came to be filed and the plaintiff is aware that the suit
schedule property is not in possession and the property
also acquired by the authorities and she has claimed the
compensation of her share etc., And prayed for dismissing
the application. After considering the arguments, the Trial
Court passed the impugned order by granting injunction
against the defendants restraining from creating,
alienating or encumbering or transacting with any third
parties with respect of the suit schedule properties. Being
aggrieved by the same defendant No.4 is before this
Court.
7. The senior counsel appearing for the
appellant/defendant No.4 has vehementally contended
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that the order of the Trial Court is erroneous, it was not
considered the case on merits, especially the plaintiff
herself not sought for challenging any documents like
registered agreement of sale dated 31.08.2020 and even
to challenge the said transaction, the appellant would put
to great hardship and inconvenience, as the blanket
injunction order passed by the Trial Court without prima
facie case made out by the plaintiff. The plaintiff also not
challenged the release deed executed by her or she also
not challenged the gift deed executed in her favour. The
plaintiff is not entitled for any relief claimed under the suit.
The clever draft is made in the plaint before the Trial Court
and the plaintiff approached this court after lapse of
several decades for granting injunction and also
declaration. There is no prayer for permanent injunction
restraining the defendants from alienating the suit
schedule properties.
8. Learned Senior counsel also contended that the
prayer 'O' is very clearly reveals that she has claimed only
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share in the compensation amount and no prayer for
granting any permanent injunction restraining the
defendants from interfering with the suit schedule
properties. It is settled possession of law interim prayer
which is contrary to the prayer made in the plaint and
contrary prayer in IA cannot be granted. Therefore,
without considering the facts of the case, the Trial Court
passed the order which is not sustainable. Hence, prayed
for setting aside the same.
9. Per contra learned counsel for the respondent
No.1/plaintiff objected the appeal contending that the
plaintiff filed the suit for partition, where the defendants
are relinquishing the right but the two documents are
registered at the same time, where gift deed and
relinquishment deed executed at the same time, a fraud
committed on the plaintiff and obtained relinquishment
right by the family members of the plaintiff. Therefore, she
has filed a suit. Though the appellant/defendant No.4
claiming the decree obtained in OS.No.1532/2014, which
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was attained finality in the Hon'ble Supreme Court, where
the plaintiff was not a party. The property is ancestral
property of the plaintiff, she is having right over the
property. The defendant No.4 already entered into an
agreement, the property likely to be sold, if the share of
the plaintiff is sold, it cannot be compensated in any
manner. The brother of the plaintiff sold the property
belongs to her share. And further contended that the
plaintiff also filed suit seeking amendment of the plaint as
well as the prayer and implead the defendant Nos.6 and 7.
Therefore, considering the same the Trial Court rightly
granted injunction. Hence, prayed for dismissing the
appeal.
10. Learned senior counsel appearing for the
defendant No.4/appellant has seriously contended that
there is no prima facie case made out by the plaintiff for
granting equally and efficacious remedy in favour of the
plaintiff. The sale deed of the defendants not challenged
by the plaintiff. If the plaintiff claimed the fraud it has to
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be prove, until proving the case, the plaintiff is not entitle
for any relief. The defendant No.1 already sold the
property to the defendant No.4. The decree was obtained
in OS.No.1532/2016, which was challenged before the
High Court of Karnataka, which was dismissed, they also
filed SLP which was also came to be dismissed. The sale
deed was executed by the defendant Nos.1, 2 and children
in favour of the defendant No.4 on 09.06.2022 for 2 acres
30 guntas. The plaintiff claiming the title on the ground of
fraud. There is no specific prayer by the plaintiff in the suit
as well as IA. Therefore, he has contended that the prayer
of the plaintiff cannot be considered, as she is claiming
only compensation of the property or sale consideration.
11. By reply the learned counsel for the respondent
No.1/plaintiff also contended that the property value is
very much more but the sale deed executed for lesser
price, as agricultural land which is not correct, the land is
converted land. Hence, prayed for dismissing the appeal.
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12. Having heard the arguments and perused the
records, now the following points arises for my
consideration are;
1) Whether the plaintiff made out prima facie
case in her favour for granting injunction?
2) Whether the balance of convenience lies in
favour of plaintiff?
3) Whether the plaintiff will be put to hardship
if injunction is not granted?
4) Whether the order of the Trial Court call for
the interference?
13. On perusal of the documents and the relief
claimed by the plaintiff in the suit which reveals it is not a
simple suit for partition and separate possession of 1/4th
share in the suit schedule property but the prayer of the
plaintiff is lengthy prayer from (A) to (T) i.e. 20 prayers,
among them the prayer 'N' containing -6 sub prayers for
declaration of various documents are not binding, the sale
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deeds are not binding, and she is entitle for the share in
almost 11 items of the properties. Out of which the
dispute between the plaintiff and the defendant No.4 is in
respect of item No.6 i.e., land in Sy.No.105/1 measuring 2
acres and adjacent Sy.No.105/2 measuring 1 acre 33
guntas situated at Jakkuar Village, Yelahanka Hobli. The
remaining lands there is no dispute between the defendant
No.4 and the plaintiff. The contention of the senior counsel
for the appellant is that the plaintiff herself executed a
release deed in favour of brother -defendant No.1 and the
release deed was executed in the year 2007 but the suit
filed in the year 2021. Meanwhile in 2017 she has obtained
the gift from the mother and brother and she has taken
apartments and therefore there is no prima facie case in
favour of the plaintiff for seeking any injunction. Hence,
prayed for allowing the appeal.
14. The respondent counsel also produced the
document where he has submitted the release deed dated
01.02.2017 and gift deed dated 01.02.2017 are registered
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on the same day. The plaintiff obtained 3 apartments
carved out of the land in Sy.No.66/2 and 66/7, where she
has already given a release deed in respect of the same
property. In one hand she has given the right over the
property and she taken back the 3 bed room houses in the
same apartment put up on the said land in question. The
earlier release deed made by the Yashodamma -the
mother of the plaintiff in the year 2007 itself, who is also
defendant No.2 in the suit.
15. Learned senior counsel for the appellant brought
to the notice of this court that the prayer of the plaintiff
itself is complicated one, she has claimed various relief for
25% of share but she also claimed the bifurcation of the
share and alternatively she claimed that she is entitled for
the sale price of the suit schedule property if it is already
sold by the defendant or compensation amount if the
property was acquired by the authority or TDR which ever
is applicable. The very prayer 'O' of the suit clearly reveals
that the plaintiff is having knowledge about the release
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deed and receiving the gift deed and after the release
deed in favour of the defendant No.1, he has sold the
property and therefore she is entitle for the share out of
the sale consideration or compensation if the property is
already acquired by the authority. It is averred in the
plaint some of the property was under acquisition.
Therefore, it is clear case of the plaintiff that the plaintiff
claims 25% of share i.e., 1/4th share in all the schedule
properties, which is no way concerned about the same in
this appeal except land in Sy.No.105/1 measuring 2 acres
and adjacent Sy.No.105/2 measuring 1 acre 33 guntas
situated at Jakkuar Village, Yelahanka Hobli. Therefore if
the property already sold by the defendant No.1 in favour
of defendant No.4 she is entitle for the sale consideration
of her share if able to succeed in the suit. The plaintiff yet
to prove her case as the prayer in the plaint is 20 prayers
plus 6 sub prayers in prayer 'N'. Such being the case the
matter required detail consideration by the Trial Court. The
plaintiff required to prove her case in the court, till then
she is not entitle for the relief of injunction either by way
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of not to alienate or create any third party interest over
the suit schedule properties.
16. Though the learned counsel for the respondent
has contended that the release deed got obtained by the
brother of the plaintiff by fraud etc., it has to be proved by
the plaintiff in the trial after examining the witnesses and
cross examining the witnesses. In respect of item No.6 the
matter already approached the civil court, where the some
of the agreement has been cancelled by the civil court, the
parties approached the High Court of Karnataka and went
up to Hon'ble Supreme Court, though the plaintiff is not a
party but the subject matter was already went up to
Hon'ble Supreme Court and the sale deed of the defendant
No.4 is not sought for cancellation by the plaintiff in the
suit. Though the counsel submits after issuance of
summons the sale deed was executed and lis pendency
sale. Therefore at this stage when the property already
sold by the defendant No.1 in favour of defendant No.4,
now the question of restraining or alienating the suit
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schedule property especially 105/1 and 105/2 not arises
for granting any injunction in favour of the plaintiff. Of
course she is entitle for the share in the sale consideration
from the brother i.e., defendant No.1 and her mother
defendant No.2 after she succeeds in the suit.
17. That apart it is also seen from the records that
the defendant No.5 already joined with the defendant
No.1, there was a JDA, the property were developed,
apartments were constructed, out of the said apartments
the plaintiff obtained three bed room flats, such being the
case, the said property cannot be ordered to not to
alienate or create third party interest that will cause
irreparable loss to the defendant rather than the plaintiff.
If at all the value of the property is more or less it has to
be establish by the court of law by full pledged trial. Such
being the case, the plaintiff is not able to show prima facie
in her favour and balance of convenience in her favour and
if the injunction is not granted it will not cause any
irreparable loss to her as her claim itself alternative claim
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for getting compensation, as share in the sale
consideration or TDR etc.,
18. The learned counsel for the respondent has
contended that the High court should not venture into the
order of the trial court for setting aside but it is well
settled possession of law, when the order of the trial court
is perverse or capricious, the High Court always interfere
and set aside the same. Such being the case, the
contention of the respondent counsel cannot be
acceptable, on the other hand the order of the trial court is
perverse, and not considered the plaint averments, it is
lengthy plaint averments, more than 25 relief claimed,
which are all required to adjudicate by the trial court, till
then the question of granting any injunction as against
item No.6 of the suit schedule property does not arises.
Accordingly, the order of the trial court requires to
interfere by this court to the extent of Sy.Nos.105/1 and
105/2 belongs to the appellant.
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Accordingly, the appeal is allowed.
Order of the trial court in respect of item No.6 i.e., 'f'
in Sy.No.105/1 measuring 2 acres and adjacent
Sy.No.105/2 measuring 1 acre 33 guntas, situated at
Jakkuar Village, Yelahanka-2 Hobli, is set aside.
The order of the trial court is modified accordingly.
Sd/-
(K.NATARAJAN)
JUDGE
SRK
CT:SK
