IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF FEBRUARY, 2017 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA MISCELLANEOUS FIRST APPEAL No.1039/2016 (CPC) C/W MISCELLANEOUS FIRST APPEAL No.1040/2016 IN MFA NO.1039/2016 BETWEEN:
1. H. R. RAJAGOPAL REDDY, S/O. LATE N. RAMAIAH, AGED 56 YEARS, 2. H.R. MANJUNATHA REDDY, S/O. LATE N. RAMAIAH, AGED 54 YEARS, 3. H.R. RAMESH REDDY, S/O. LATE N. RAMAIAH, AGED 51 YEARS, 4. H.R. SHANKAR REDDY, S/O. LATE N. RAMAIAH, AGED 44 YEARS, 5. H.R. PRAKASH S/O. LATE N.RAMAIAH, AGED 42 YEARS, ALL ARE RESIDING AT HONNENAHALLI VILLAGE, RAJANAKUNTE POST, YELAHANKA HOBLI-560064. BANGALORE NORTH TALUK.
(BY SRI B. RAMESH, ADVOCATE) ... APPELLANTS AND:
N. RAMAIAH, DIED ON 21.06.2015, APPELLANTS AND RESPONDENT NO.2 AND 3 ARE ALREADY ON RECORD AS THEIR LEGAL REPRESENTATIVES, 1(a) H.R. JAYARAMA REDDY, S/O. LATE N.RAMAIAH, AGED 59 YEARS, 1(b) SMT. NAGAMMA, W/O.LATE N.RAMAIAH, AGED 76 YEARS, 1(c) SMT. MUNIRATHNAMMA, W/O. H.R.JAYARAMA REDDY, AGED 51 YEARS, ALL ARE RESIDING AT HONNENAHALLI VILLAGE, RAJANAKUNTE POST, YELAHANKA HOBLI, BANGALORE NORTH TALUK-560 064.
... RESPONDENTS (BY SRI G. L. VISHWANATH, ADVOCATE FOR R1(a-c)) ….
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER 43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DATED:11.01.2016 PASSED ON IA NO.1 IN O.S.NO.965/14 ON THE FILE OF THE 1ST ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, DISMISSING THE IA NO.1 FILED UNDER ORDER 39 RULE 1&2 OF CPC.
IN MFA NO.1040/2016 BETWEEN:
1. H. R. RAJAGOPAL REDDY, S/O. LATE N. RAMAIAH, AGED 55 YEARS, 2. H.R. MANJUNATHA REDDY, S/O. LATE N. RAMAIAH, AGED 53 YEARS, 3. H.R. RAMESH REDDY, S/O. LATE N. RAMAIAH, AGED 50 YEARS, 4. H.R. SHANKAR REDDY, S/O. LATE N. RAMAIAH, AGED 43 YEARS, 5. H.R. PRAKASH S/O. LATE N.RAMAIAH, AGED 41 YEARS, ALL ARE RESIDING AT HONNENAHALLI VILLAGE, RAJANAKUNTE POST, YELAHANKA HOBLI-560064. BANGALORE NORTH TALUK.
(BY SRI B. RAMESH, ADVOCATE) AND:
N. RAMAIAH, DIED ON 21.06.2015, APPELLANTS AND RESPONDENT NO.2 AND 3 ARE ALREADY ON RECORD AS THEIR LEGAL REPRESENTATIVES, 1(a) H.R. JAYARAMA REDDY, S/O. LATE N.RAMAIAH, AGED 58 YEARS, 1(b) SMT. NAGAMMA, W/O.LATE N.RAMAIAH, AGED 75 YEARS, 1(c) SMT. MUNIRATHNAMMA, W/O. H.R.JAYARAMA REDDY, AGED 50 YEARS, ... APPELLANTS ALL ARE RESIDING AT HONNENAHALLI VILLAGE, RAJANAKUNTE POST, YELAHANKA HOBLI, BANGALORE NORTH TALUK-560 064.
... RESPONDENTS (BY SRI G. L. VISHWANATH, ADVOCATE FOR R1(a-c)) …… THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER 43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DATED:11.01.2016 PASSED ON IA NO.3 IN O.S.NO.965/14 ON THE FILE OF THE 1ST ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, ALLOWING IA NO.3 FILED UNDER ORDER 39 RULE 4 OF CPC.
THESE MISCELLANEOUS FIRST APPEALS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT These appeals are filed by the plaintiffs against the order dated 11.01.2016 made in O.S.No.965/2014 on the file of the I Addl. Senior Civil Judge, Bengaluru Rural District, Bengaluru, dismissing I.A.No.1 filed by the plaintiffs under Order XXXIX Rule 1 and 2 of CPC and allowing I.A.No.3 filed by the defendants under Order XXXIX Rule 4 of CPC, thereby vacating the ex- parte interim order.
2. The appellants who are the plaintiffs in O.S. No.965/2014 filed suit for partition and separate possession in respect of four items of suit schedule properties contending that though there was earlier partition on 02.06.2004, the properties were not divided in respect of other joint family properties and subsequently supplementary deed came to be entered into between the parties on 18.01.2006 in respect of the suit schedule properties. It is not acted upon and subsequently, the first defendant executed gift deed in favour of the fourth defendant (daughter-in-law) on 10.02.2014. Therefore, sought for partition of 1/7th share and also for declaration that the supplementary deed dated 18.01.2006 is invalid etc., 3. The defendants filed written statement, denied the plaint averments admitting the earlier partition deed dated 02.06.2004 in respect of other properties and contended that on 18.01.2006 supplementary deed entered into between the parties in terms of the said deed several other properties were allotted to the share of the plaintiffs which are not included in the suit. Therefore, suit is not maintainable and the supplementary deed dated 18.01.2006 has been acted upon and therefore, sought for dismissal of the suit.
4. During pendency of the proceedings, the plaintiffs filed I.A.No.1 for temporary injunction restraining the defendants from alienating, encumbering or creating third party rights in respect of the suit schedule properties, pending final disposal of the suit and the Trial Court granted an ex-parte interim order on 24.06.2014. The defendants filed I.A.No.3 under Order XXXIX Rule 4 of CPC to vacate the ex-parte interim order.
5. The Trial Court, after considering the entire material on record, dismissed the application filed by the plaintiffs under Order XXXIX Rule 1 and 2 of CPC and allowed the defendants’ application filed under Order XXXIX Rule 4 of CPC, and vacated the ex-parte interim order granted on 24.06.2014. Hence the present appeals are filed.
6. I have heard the learned counsel for the parties to the lis.
7. Sri B.Ramesh, learned counsel for the appellants/ plaintiffs vehemently contended that the supplementary deed dated 18.01.2006 though registered, it has not been acted upon. The first defendant executed gift deed on 10.02.2014 in favour of the fourth defendant which clearly indicates that the supplementary deed dated 18.01.2006 was not acted upon. The plaintiffs are entitled to 1/7th share in the suit schedule property morefully described in the plaint. He further contended that he is the owner of Sy.No.48 purchased under registered sale deed dated 24.11.2000 and filed an affidavit before the Debt Recovery Tribunal indicating that the document dated 18.01.2006 is not acted upon. Therefore, the Trial Court ought to have granted harmless order of temporary injunction directing the parties not to alienate the suit schedule properties, since the rights of the parties are to be decided and if any alienation is made during pendency of the suit, it will lead to multiplicity of proceedings. Therefore, sought to set-aside the impugned order passed by the Trial Court on I.A.Nos.1 and 3 by allowing these appeals.
8. Per contra, Sri G.L.Vishwanath, learned counsel for the respondents/defendants sought to justify the impugned order passed by the Trial Court and contended that the Trial Court considering the entire material on record recorded a finding that the plaintiffs have not made out any prima-facie case, therefore, injunction cannot be granted and sought for dismissal of the appeals.
9. Having heard the learned counsel for the parties to the lis, the only point that arises for consideration is:
“Whether the impugned order passed by the Trial Court dismissing the plaintiffs’ application for temporary injunction and allowing the defendants’ application for vacating the exparte interim order is justified in the facts and circumstances of the case?
10. It is the specific case of the plaintiffs that though there was partition in the year 2004 itself, wherein all the joint family properties were divided between plaintiffs and defendants 1 and 2, there was supplementary partition deed in the year 2006. The plaintiffs are entitled to 1/7th share as claimed in the plaint. The defendants specifically contended that the suit filed by the plaintiffs for partial partition is not maintainable though other properties allotted to other defendants under the supplementary deed dated 18.01.2006 are not included in the present suit. These are the matters to be adjudicated by the Trial Court after trial.
11. Admittedly, there is no dispute that the suit schedule properties are the joint family properties. It is not in dispute that there was partition in the year 2004 dividing the suit schedule properties and other properties between the members of the joint family.
12. The Trial Court, considering I.A.Nos.1 and 3 has recorded a finding that the plaintiffs are questioning only supplementary deed dated 18.01.2006 under which item No.1 was allotted to defendants 1 and 2. In the year 2010 itself they mortgaged the property with a financial institution and availed loan. The plaintiffs did not move little finger at the time of mortgage. Even now, there is no explanation by the plaintiffs as to why they were sleeping over their right from the year 2006 till filing of the suit. At this stage, prima facie, it appears that there was severance of status between the parties in the year 2004 itself and all the parties are enjoying respective properties independently.
13. The Trial Court also recorded a finding that the first defendant has already created encumbrance in favour of Raithara Seva Sahakara Bank and at that time plaintiffs have not questioned the same. Therefore, plaintiffs failed to make out prima facie case for granting temporary injunction. Accordingly, balance of convenience does not tilt in favour of the plaintiffs and it is the defendants who will be put to irreparable loss, hardship and injury, if the order of temporary injunction is continued in favour of the plaintiffs. Therefore, the Trial Court was of the opinion that the exparte interim order granted earlier requires to be vacated and accordingly dismissed I.A.No.1 and allowed I.A.No.3. The same is in accordance with law.
14. For the reasons stated above, the point raised for consideration in the present appeals has to be answered in the affirmative holding that the Trial Court is justified in passing the impugned order.
15. The plaintiffs have not made out any case to interfere with the impugned order passed by the Trial Court exercising the appellate jurisdiction of this Court. Accordingly these appeals are dismissed. However, it is made clear that any of observations made by the Trial Court while deciding the I.A.s as well as this Court while deciding the above appeals shall not come in the way of the parties in establishing their rights independently in accordance with law.
Sd/-
JUDGE Kcm