IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR REGULAR FIRST APPEAL No.395 OF 2017 BETWEEN D.H.Narayansa, Aged about 61 years, Son of Late. D.H.Hanumanthsa, Managing Partner of M/s. Rashmi Silk Fabrics, A registered Partnership Firm, Having its registered Office No.8., Hotel Maruthi Complex, Balepet Loop Road, Bangalore-560053.
(By Sri. H.S.Somnath, Advocate) AND 1. Sri. D.H.Maruthisa, Aged about 81 years, S/o. Late D.H.Hanumanthasa, Residing at No.3791, “Maruthi Nilaya’ 12th Main Road, Banashankari 2nd Stage, Bangalore-560070.
…Appellant 2. Sri. D.H.Navanathsa Aged about 67 years, S/o. Late D.H.Hanumanthasa, Residing at No.11/87, 1st Main Road, 2nd Stage, Oklipuram, Bangalore-560021.
(By Smt. N.Aparna, Advocate for Sri. R. Purushotham, Advocate for C/R2) …Respondents This RFA is filed under Section 96 of CPC., against the judgment and decree dated 15.09.2016 passed in O.S.No.3061/2010 on the file of the XVIII Additional City Civil Judge, Bengaluru, dismissing the suit for permanent injunction and possession.
This RFA coming on for admission, this day, the Court made the following :
ORDER Heard the appellant’s counsel and the respondents’ counsel at the time of admission. Appellant is the plaintiff in respect of the property bearing Municipal No.8, Srinivasa Mandira Road, Balepet Loop Road, Bangalore-53. The appellant filed the suit for injunction to restrain the respondents from interfering with his peaceful possession and enjoyment of the suit property. The plaintiff and the defendants are the brothers and their father D.H. Hanumanthasa bequeathed the suit property in favour of the plaintiff and defendants under a registered Will dated 07.09.1990 and that the appellant is entitled to share in the suit property. According to the plaintiff he is in possession of the suit property and that the defendants were receiving rents from him for use and occupation. Since the defendants developed enmity against him, they attempted to dispossess him from the suit property without following due process of law.
2. The defendants admit that their father executed the Will on 07.09.1990 and that the appellant has also got 1/3rd share by virtue of the Will. But they contend that the plaintiff was running silk business in the name and style of Rashmi Silk Fabrics in a portion of the suit property. They have disputed that they were receiving rent in respect of the suit property from the plaintiff and have also disputed the alleged interference with the plaintiff’s possession. Their further contention is that one of the partners of the firm viz., D.K.Srinivas instituted a suit O.S.No.497/1992 for dissolution of the partnership and the said suit was decreed on 12.01.2009. The partnership firm was dissolved with effect from 01.02.1992. Therefore they contended that the plaintiff’s claim over the business has to be considered as per the observations made in the judgment in O.S.No.497/1992. They also pleaded that their father leased out a portion of the suit property for running of a hotel by executing a lease deed dated 29.08.1986. They contended that the plaintiff under the guise of the suit is trying to gain control over legally dissolved firm. Therefore the suit should be dismissed.
3. The trial court framed issues, recorded the evidence of PW-1 and DW-1 and got marked six documents from plaintiff’s side as per Ex.P.1 to P.6 and three documents from the defendants side as per Ex.D1 to D.3. On appreciation of the evidence, the trial court came to conclusion that the plaintiff was the co-owner of the property on the basis of the Will executed by his father and therefore he cannot claim injunction against other co-owners. It is also further observed that though according to the plaintiff he was a tenant in respect of the portion of the property, he has filed a suit in respect of the entire property and therefore decree of injunction cannot be granted. With these observations, suit came to be dismissed.
4. The learned counsel for the appellant argues that the prayer of the plaintiff was that he should not be dispossessed from the property without due process of law. Though DW-1 admitted in the cross-examination that the plaintiff was in possession of the suit property, the same has not been considered. Therefore according to him the trial court has committed an error in appreciating the evidence.
5. The learned counsel for the respondents submit that the judgment of the trial court does not suffer from infirmity. When the plaintiff claims to be co-owner of the suit property, he cannot maintain the suit for injunction and rightly the trial court has come to this conclusion. She also argues that the plaintiff suppressed the fact about the decree passed in O.S.No.497/1992. The said suit was for dissolution of the partnership firm. The plaintiff was also one of the partners. By virtue of the dissolution of the firm, the plaintiff lost all his interest in the suit property and for these reasons, the impugned judgment cannot be interfered with.
6. I have perused the judgment of the trial court. There is no dispute that the father executed the Will as per Ex.P.1 in favour of the plaintiff and the defendants. According to the Will, the plaintiff and the defendants were equally granted share in the suit property. Even according to the plaintiff he has got only 1/3rd share in the suit property. If this being the case, he cannot file a suit for injunction against the other co-owners. This finding of the trial court cannot be said to be incorrect. There is also another factor to be observed here. The plaintiff claims to be in possession of the part of the suit property and it appears that he has filed suit in respect of the entire property. If for this reason also, the trial court came to conclusion that the suit should be dismissed, I do not find any error in it. Evidence has been properly appreciated. Rightly the suit deserves dismissal. Appeal is dismissed.
Sd/- JUDGE sd