IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11th DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE PRADEEP SINGH YERUR M.F.A. No.3984 OF 2016 (CPC) c/w M.F.A. No.3983 OF 2016 In MFA No.3984/2016 BETWEEN:
Smt. C. Radha Aged about 46 years, D/o Chikkaramaiah Reddy, W/o Sri. Srinivasa Reddy, R/at No.24, 2nd Cross, 3rd Block, Viswapriyanagar, Begur, Bengaluru – 560 066. …Appellant (By Sri. Thejesh .N, Advocate) AND:
1. Sri. Naga Reddy Aged about 51 years, S/o Sri. Doddaramaiah Reddy, 2. Sri. R. Venkatesh Reddy Aged about 44 years, S/o Sri. Doddaramaiah Reddy, 3. Sri. Venugopal Reddy Aged about 40 years, S/o Sri. Doddaramaiah Reddy, All are R/o Thubarahalli Village, Ramagondanahalli Post, Varthur Hobli, Bengaluru East, Bengaluru – 560 066.
4. Smt. Nanjamma W/o late Sri. Biddappa Reddy, Aged about 91 years, R/o Thubarahalli Village, Ramagondanahalli Post, Varthur Hobli, Bengaluru East, Bengaluru – 560 066.
5. M/s. N.S.D. Builders A partnership Firm having its Office at No.40/2 and 41, Thubarahalli, Varthur Hobli, Bengaluru – 560 066 Represented by its Managing Partner. ...Respondents (By Sri. M.K. Shivaraju, Advocate for C/R3) In MFA No.3983/2016 BETWEEN:
Smt. C. Radha Aged about 46 years, D/o Chikkaramaiah Reddy, W/o Sri. Srinivasa Reddy, R/at No.24, 2nd Cross, 3rd Block, Viswapriyanagar, Begur, Bengaluru – 560 066. …Appellant (By Sri. Thejesh .N, Advocate) AND:
1. M. Thammaiah Reddy Aged about 66 years, S/o late Muniswamy Reddy, R/at No.1182, 12th B Main, HAL 2nd Post, Indiranagar, Bengaluru – 560 008.
2. M/s. Kalyani Tech Park Pvt. Ltd., Registered Office: No.151/2, Opposite IIM Bengaluru, Doraisanipalya, Bannerghatta Road, Bengaluru – 560 076. ...Respondents (By Sri. L.S. Venkatakrishna & Sri. N. Kumar, Advocate for C/R1) *** These Miscellaneous First Appeals are filed under Order 43 Rule 1 (r) of Code of Civil Procedure, 1908 against the order dated 01.04.2016 passed on I.A. Nos.1 and 2 in O.S. No.6815/2005 on the file of the XXII Additional City Civil and Sessions Judge, Bengaluru, dismissing I.A. Nos.1 and 2 filed under Order 39 Rules 1 and 2 r/w Section 151 of CPC.
These appeals coming on for Admission this day, the Court, delivered the following:
JUDGMENT Heard the learned counsel for the appellant and learned counsel for Caveator/respondent No.3.
2. These appeals are filed by plaintiff No.2 aggrieved by the order passed by XXII Additional City Civil and Sessions Judge, Bengaluru on I.As. No.1/2014 and 2/2014 wherein, the trial Court dismissed both the applications of the appellant.
3. In both these cases, the plaintiff No.2, the appellant herein has filed the present appeals challenging the same order dated 01.04.2016. As no relief is sought against the plaintiff No.1 and other defendants, they have not been made parties to these appeals at the risk of the appellant.
4. For the sake of convenience, the parties will be described as per their status before the trial Court.
5. Initially, plaintiff No.1 had filed the suit for partition and separate possession, wherein plaintiff No.2 was made as defendant No.12. Subsequently, application made by defendant No.12 to transpose herself as plaintiff came to be allowed and therefore, the plaintiffs are prosecuting the case against the defendants for relief of partition and separate possession.
6. I.A. No.1/14 was filed by plaintiff No.2 restraining defendants No.6 to 12 from alienating, mortgaging, leasing or creating any kind of encumbrance over the commercial complex constructed on suit item No.2 property, till disposal of the suit and I.A. No.2/2014 was filed by plaintiff No.2 restraining defendants No.3 to 5, 7 and 13 from alienating, mortgaging, leasing or creating any kind of encumbrance over flats constructed on suit items No.9 and 11 property, pending disposal of the suit.
7. It is the case of the plaintiffs that five items of suit schedule properties are joint family properties and father of plaintiff No.2 has colluded with the defendants, by accepting the illegal gratification and executed a deed in favour of other defendants to deprive the legitimate share of plaintiff No.2 in the joint family properties. It is the allegations of the plaintiffs that defendant Nos.3 to 7, 12 and 13 are trying to mortgage, lease out or create encumbrance over the suit schedule properties. It is also stated by the plaintiffs that flats have been constructed in suit Items No.2, 9 and 11 of the suit properties and that if the defendants are allowed to create a charge or alienate the suit properties or mortgage or create encumbrance over the suit properties, injury and hardship will be caused to the plaintiffs, which would create multiplicity of the proceedings and therefore, the plaintiffs preferred these two applications.
8. Applications have been seriously opposed by defendants No.1 to 5, 6 and 13 by filing their statement of objections. It is their case that plaintiff No.2 was earlier arrayed as defendant No.12 and she has transposed herself as plaintiff No.2 and in collusion with plaintiff No.1, with malafide intentions, frivolous applications have been filed. It is the further contention of the defendants that the partition has already been effected by plaintiff No.1 with other joint family members on 24.09.1993 and subsequently, another registered partition deed came to be effected on 23.09.2004 between defendants No.1 to 5. Learned counsel for respondents/defendants further submits that pursuant to the partition deed, each of the parties are in the respective portions of the property and Tahsildar has effected mutation with respect to the suit properties and they are in peaceful possession and enjoyment of the same.
9. Learned counsel for the plaintiffs submits that plaintiff No.2 is the daughter of plaintiff No.1 and when so called partition has been effected between the parties, plaintiff No.2 has not been provided with her legitimate share and hence, she claims that any creation of third party rights or encumbrance over the suit schedule properties will create hardship and would be detrimental to her interest.
10. Per contra, learned counsel appearing for Caveator/respondent No.3 submits that this is the frivolous suit filed by the plaintiffs in collusion with each other only to knock off the allotted shares of defendants and to harass the defendants in the frivolous litigation. Further, learned counsel submits that the properties have been partitioned between the parties and respective portion of their allotment of the same has been mutated by the Tahsildar in the revenue records. It is also noticed that defendant Nos.5 to 7 and 13 have entered joint development agreement with regard to the suit schedule properties after the partition and created third party interest.
11. Under the facts and circumstances of the case the only point that arises for consideration in this appeal is whether the plaintiffs are entitled to an order of injunction, injuncting the defendants from alienating or creating any encumbrances or mortgaging the suit schedule properties? My answer to the said question is in the Negative.
12. The present suit is filed after more than a decade of the alleged partition. Whether prima-facie plaintiffs have made out a case for grant of order of injunction and secondly, which of the parties will suffer irreparable injury and hardship. It is no doubt true that the facts of the case disclose that admittedly, third party rights have been created and flats have been constructed pursuant to the joint development agreement, therefore, the balance of convenience lies on the defendants and as of now, the irreparable injury and hardship will be caused to the defendants, if the applications are allowed. Therefore, the trial Court is right in coming to the conclusion that the balance of convenience lies with the defendants and accordingly, dismissed both the applications.
13. In the event the plaintiff No.2, the appellant succeeds before the trail Court, she will be entitled to her share of the property.
14. I do not find any reasons to interfere with the order passed by the XXII Additional City Civil and Sessions Judge, Bengaluru. Accordingly, the appeals are dismissed.
15. It is needless to say that no opinion is expressed by this Court on merits of the case.
Considering the year of the suit filed and the submissions of the learned counsel that presently, the suit is at the stage of cross-examination of defendants, the trial Court is requested to expedite the matter.
MBM Sd/- JUDGE