IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF AUGUST 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR M.F.A.No.4989/2018 c/w M.F.A.Nos. 4990/2018 AND 4791/2018 (CPC) In M.F.A.No.4989/2018 BETWEEN:
1. HEMAVATHI B PANDI W/O K.BHOJARAJA PANDI, AGED ABOUT 72 YEARS R/AT NEAR SHIVATIKERE UMA MAHESHWARA TEMPLE, HERIYANGADI POST, KARKALA-574 104 2. SMT.SUMITHRA S ARIGA W/O LATE P.SHANTHA KUMAR ARIGA, AGED ABOUT 59 YEARS R/AT NO.1057, FIRST FLOOR, ELEVENTH CROSS, 35TH MAIN J.P.NAGAR 1ST PHASE, BENGALURU-560 078.
3. MOHAN KUMAR P.S.
S/O LATE P.SHANTHA KUMAR ARIGA, AGED ABOUT 37 YEARS R/AT NO.1057 FIRST FLOOR, 11TH CROSS, 35TH MAIN, J.P.NAGAR FIRST PHASE, BENGALURU-560 078.
4. SHEETHAL KUMAR P S/O LATE P.SHANTHA KUMAR ARIGA, AGED ABOUT 32 YEARS R/AT NO.1373/1, 1ST FLOOR, GEETHACHARYA, 2ND MAIN, 4TH CROSS, KRISHNAMURTHPURAM, MYSORE-570 004.
5. SARASWATHI.N RAJ W/O NAGARAJA POOVANI, N.VIDYANAGAR, AGED ABOUT 70 YEARS ASHUYANA, UJRE, BELTHANGADY TALUK, DAKSHINA KANNADA DISTRICT PIN CODE-574240 6. INDIRA B AJIRI W/O LATE K.BHOJARAJA AJIRI AGED ABOUT 68 YEARS 751, SIDHASHAILA II CROSS, III MAIN A BLOCK, KANAKADASA NAGAR, DHATTAGALLI III STAGE, MYSORE-570 022.
7. JINAMATHI Y JAIN W/O D.YASHODHAR JAIN, AGED ABOUT 64 YEARS PADMAVATHI TEMPLE, STATION ROAD, GUDGERI KUNDOL TALUK, DHARWAD DISTRICT PIN CODE-581 107 8. BHARATH KUMAR P S/O K.K. PANDI AND NAGAMMA, AGED ABOUT 63 YEARS PATTE GUTHU HOUSE, PADNOOR POST, PUTTUR, D.K.DIST-574 220.
(BY SRI.G.BALAKRISHNA SHASTRY, ADVOCATE) …APPELLANTS AND:
1. VIJAYA S ARIGA S/O SRIPATHI ARIGA, AGED ABOUT 61 YEARS 2. ASHA P.S.
D/O SRIPATHI ARIGA, AGED ABOUT 36 YEARS 3. ANUSHA P.S.
D/O SRIPATHI ARIGA AGED ABOUT 31 YEARS ALL ARE R/AT NAMASTHU, APMC YARD ROAD, SALMARA, PUTTUR, TQ PUTTUR, DIST D.K.-574220.
…RESPONDENTS (BY SRI.B.S.SACHIN, ADVOCATE FOR R1 TO R3) THIS M.F.A. IS FILED UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 07/03/2018, PASSED ON IA.5 IN O.S.NO.46/2017, ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND ADDITIONAL CHIEF JUDICIAL MAGISTRATE, PUTTUR, ALLOWING THE IA.NO.5 FILED UNDER ORDER 39 RULES 1 AND 2 R/W. SEC.151 OF CPC.
In M.F.A.No.4990/2018 BETWEEN:
1. HEMAVATHI B PANDI W/O K.BHOJARAJA PANDI, AGED ABOUT 72 YEARS R/AT NEAR SHIVATIKERE UMA MAHESHWARA TEMPLE, HERIYANGADI POST, KARKALA-574 104 2. SMT.SUMITHRA S ARIGA W/O LATE P.SHANTHA KUMAR ARIGA, AGED ABOUT 59 YEARS R/AT NO.1057, FIRST FLOOR, ELEVENTH CROSS, 35TH MAIN J.P.NAGAR 1ST PHASE, BENGALURU-560 078.
3. MOHAN KUMAR P.S.
S/O LATE P.SHANTHA KUMAR ARIGA, AGED ABOUT 37 YEARS R/AT NO.1057 FIRST FLOOR, 11TH CROSS, 35TH MAIN, J.P.NAGAR FIRST PHASE, BENGALURU-560 078.
4. SHEETHAL KUMAR P S/O LATE P.SHANTHA KUMAR ARIGA, AGED ABOUT 32 YEARS R/AT NO.1373/1, 1ST FLOOR, GEETHACHARYA, 2ND MAIN, 4TH CROSS, KRISHNAMURTHPURAM, MYSORE-570 004.
5. SARASWATHI.N RAJ W/O NAGARAJA POOVANI, N.VIDYANAGAR, AGED ABOUT 70 YEARS ASHUYANA, UJRE, BELTHANGADY TALUK, DAKSHINA KANNADA DISTRICT PIN CODE-574240 6. INDIRA B AJIRI W/O LATE K.BHOJARAJA AJIRI AGED ABOUT 68 YEARS 751, SIDHASHAILA II CROSS, III MAIN A BLAOCK, KANAKADASA NAGAR, DHATTAGALLI III STAGE, MYSORE-570 022.
7. JINAMATHI Y JAIN W/O D.YASHODHAR JAIN, AGED ABOUT 64 YEARS PADMAVATHI TEMPLE, STATION ROAD, GUDGERI KUNDOL TALUK, DHARWAD DISTRICT PIN CODE-581 107 8. BHARATH KUMAR P S/O K.K. PANDI AND NAGAMMA, AGED ABOUT 63 YEARS PATTE GUTHU HOUSE, PADNOOR POST, PUTTUR, D.K.DIST-574 220.
(BY SRI.G.BALAKRISHNA SHASTRY, ADVOCATE) AND:
1. VIJAYA S ARIGA S/O SRIPATHI ARIGA, AGED ABOUT 61 YEARS 2. ASHA P.S.
D/O SRIPATHI ARIGA, AGED ABOUT 36 YEARS …APPELLANTS 3. ANUSHA P.S.
D/O SRIPATHI ARIGA AGED ABOUT 31 YEARS ALL ARE R/AT NAMASTHU, APMC YARD ROAD, SALMARA, PUTTUR, TQ PUTTUR, DIST D.K.-574220.
…RESPONDENTS (BY SRI.B.S.SACHIN, ADVOCATE FOR R1 TO R3) THIS M.F.A. IS FILED UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 07/03/2018, PASSED ON IA.2 IN O.S.NO.46/2017, ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND ADDITIONAL CHIEF JUDICIAL MAGISTRATE, PUTTUR, PARTLY ALLOWING THE IA.NO.2 FILED UNDER ORDER 39 RULES 1 AND 2 R/W. SEC.151 OF CPC.
In M.F.A.No.4791/2018 BETWEEN:
1. VIJAYA S ARIGA AGED ABOUT 60 YEARS, W/O SRIPATHI ARIGA, 2. ASHA P S AGED 35 YEARS, D/O SRIPATHI ARIGA, GPA HOLDER BY A-1 3. ANUSHA P S AGED 30 YEARS, D/O SRIPATHI ARIGA, ALL ARE R/AT NAMOSTHU, APMC YARD ROAD, SALMARA, PUTTUR TALUK, D.K.DISTRICT-574 201 GPA HOLDER BY A-1 ... APPELLANTS (BY SRI. SACHIN B S, ADVOCATE) AND:
1. HEMAVATHI B PANDI W/O K BHOJARAJA PANDI, AGED ABOUT 71 YEARS, R/AT NEAR SHIVATIKERE UMA MAHESHWARA TEMPLE, HERIYANGADI POST, KARKALA-574104 2. SUMITHRA S ARIGA W/O LT. P SHANTHA KUMAR ARIGA, AGED ABOUT 58 YEARS, No. 1057, I FLOOR, 11TH CROSS, 35TH MAIN, JP NAGAR, I PHASE, BANGALORE-560078 3. MOHANA KUMAR P S S/O LT. P SHANTHA KUMAR ARIGA, AGED ABOUT 36 YEARS, R/AT NO.1057, I FLOOR, 11TH CROSS, 35TH MAIN, JP NAGAR, I PHASE, BANGALORE-560078 4. SHEETHAL KUMAR P S/O LT. P SHANTHA KUMAR ARIGA, AGED ABOUT 31 YEARS, R/AT NO.1373/1, PT FLOOR, GEETHACHARYA, 2ND MAIN, 4TH CROSS, KRISHNAMURTHYPURAM, MYSORE-570004 5. SARASWATHI N RAJ W/O NAGARAJA POOVANI N, AGED ABOUT 69 YEARS, R/AT VIDYANAGAR, ASHUYANA, UJIRE-574240 BELTHANGADY TALUK, D.K-574211 6. INDIRA B AJIRI W/O LATE BHOJARAJA AJIRI, AGED ABOUT 67 YEARS, R/A NO.751, SIDHASHAILA, 2ND CROSS, 3RD MAIN, ‘A’ BLOCK, KANAKADASA NAGAR, DHATTAGALLI, 3RD STAGE, MYSORE-570022.
7. JINAMATHI Y JAIN W/O D YASHODHAR JAIN, AGED ABOUT 63 YEARS, R/AT PADMAVATHI TEMPLE, STATION ROAD, GUDGERI-581107, KUNDOL TALUK, DHARWAD DIST.
8. BHARATH KUMAR P S/O K K PANDI AND NAGAMMA, AGED ABOUT 62 YEARS, R/AT PATTE GUTHU HOUSE, PADNOOR POST, PUTTUR TALUK-574201.
... RESPONDENTS (BY SRI. G BALAKRISHNA SHASTRY, ADVOCATE ) THIS MFA FILED U/O.43 RULE (1)(r) OF CPC, AGAINST THE ORDER DT.07.03.2018, PASSED ON IA.2 IN O.S.NO.46/2017, ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND ADDITIONAL CHIEF JUDICIAL MAGISTRATE, PUTTUR, PARTLY ALLOWING THE IA.2 FILED U/O.39 RULE 1 AND 2 AND SEC.151 OF CPC.
THESE M.F.As. COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT M.F.A.No.4791/2018 is filed by defendants 1 to 3 in O.S.No.46/2017 on the file of Prl. Senior Civil Judge, Puttur, challenging the order passed on I.A.No.2 filed under Order 39 Rules 1 and 2 of CPC by the plaintiffs.
M.F.A.No.4989/2018 is filed by the plaintiffs in the said suit challenging the order passed on I.A.No.5 filed by defendants 1 to 3 under Order 39 Rules 1 and 2 of CPC.
M.F.A.No.4990/2018 is filed by the plaintiffs questioning the correctness of dismissing their application I.A.No.2 for temporary injunction in respect of the plaint ‘C’ schedule property.
2. I have heard the arguments of Sri.
G.Balakrishna Shastry appearing for the plaintiffs- appellants in M.F.A.Nos.4989/2018 and 4990/2018 and also Sri. B.S.Sachin, learned counsel appearing for Respondents-defendants 1 to 3 in M.F.A.Nos.4989/2018, 4791/2018 and appellants in M.F.A.No.4791/2018.
3. Sri. G. Balakrishna Shastry, learned counsel for the appellants submit that he does not press M.F.A. No. 4990/2018. Accordingly, M.F.A.No.4990/2018 is dismissed as not pressed.
4. For the sake of convenience, the parties are referred with respect to their position in the suit. The plaintiffs and Sripathi Ariga, husband of 1st defendant and father of defendants 2 and 3 are all the children of Smt. P. Nagamma. The plaintiffs state that the properties belonged to Nagamma’s mother Kusumavathi. Plaintiffs filed a suit for partition claiming 6/7th share in plaint ‘B’ and ‘C’ schedule properties. They state that all the properties belonged to Smt. Kusumavathy, their grand mother and they devolved on their mother P. Nagamma. After the death of Nagamma, all the children are entitled to equal share. They have stated that when P.Nagamma was alive, she became chalageni tenant under her mother Kusumavathi. After Nagamma’s death, Sripathi Ariga i.e., the husband of 1st defendant applied for occupancy rights and the same was granted in his favour by the Land Tribunal on 18.05.1981, but the said grant was not in the exclusive name of Sripathi Ariga, it was to the benefit of the entire family. Therefore, the defendants being the legal representatives of Sripathi Ariga, cannot claim exclusive right of ‘C’ schedule property. In this view of the matter, both ‘B’ and ‘C’ schedule properties are to be divided equally among the children of P.Nagamma. Along with the plaint, the plaintiffs also made an application in I.A.2 seeking an order of injunction against the defendants 1 to 3.
5. The defendants’ stand is that the grant was exclusively in the name of Sripathi Ariga. When Sripathi Ariga was alive, the plaintiffs did not question the grant. The revenue records stood in the name of Sripathi Ariga and after his death, the revenue records were mutated in the name of the defendants. The plaintiffs cannot claim partition in ‘C’ schedule property. Since they claim to be in possession of ‘C’ schedule property, they also made an application in I.A.5 for grant of temporary injunction against the plaintiffs alleging that the plaintiffs are disturbing their possession.
6. The trial Court by order dated 07.03.2018, allowed I.A.2 and passed an order of injunction restraining the defendants from alienating ‘B’ schedule property and interfering with the plaintiffs’ possession of the same. The trial court also allowed I.A.5 restraining the plaintiffs from interfering with the defendants’ possession of ‘C’ schedule property.
7. Sri.G.Balakrishna Shastry, learned counsel appearing for the plaintiffs argues that ‘B’ and ‘C’ schedule properties are situated in a compact block. The plaintiffs and the defendants belonged to a joint family and the defendants cannot claim exclusive right over the ‘C’ schedule property on the basis of a grant made by the Land Tribunal in favour of Sripathi Ariga. The documents produced by the plaintiffs very clearly show that at an undisputed point of time, ‘B’ schedule property stood in the name of Kusumavathy, grand mother of the plaintiffs. Later on, revenue entry was made in the name of P.Nagamma. Therefore, when the property stood in the name of P.Nagamma, all her children are entitled to equal share. Just because Sripathi Ariga obtained occupancy rights in his name, the defendants cannot contend that the grant was exclusively made in the name of Sripathi Ariga. They cannot claim independent right over ‘C’ schedule property. The trial court has simply stated that only after recording of evidence, it can be decided whether the grant was made to Sripathi Ariga exclusively or to the joint family. The trial court has not considered the documents produced by the plaintiffs to show that the properties stood in the name of P.Nagamma. Therefore, the trial court could have drawn inference at the time of deciding the application of temporary injunction that the property belongs to the joint family.
He further submits that the Commissioner was appointed by the trial court by allowing I.A.6. The Commissioner went to the spot, held an inspection and gave a report. This report shows that ‘B’ and ‘C’ schedule properties are situated in one compact block and it is not possible to identify the boundaries of the two properties. In fact, plaintiff No.8 is residing in a house constructed in ‘B’ schedule property. There are pipelines passing through both the lands. In a situation like this, the order of injunction passed against the plaintiffs by allowing I.A.5 virtually prevents the plaintiffs from cultivating the said land.
8. Sri.B.S.Sachin, learned counsel argues that the grant by the Tribunal in respect of ‘C’ schedule property was exclusively in the name of Sripathi Ariga. He died on 10.10.2015. The grant was made on 18.05.1981. Till he was alive, the plaintiffs did not challenge the said grant. On the basis of grant, RTC entries were mutated in the name of Sripathi Ariga and after his death, RTC entries stand in the name of all the three defendants. Therefore, the possession of ‘C’ schedule property is with the defendants. The revenue entries have a presumptive value. In fact, the trial court noticed that the possession of ‘B’ and ‘C’ schedule properties is with the defendants. Taking note all these aspects, the trial court has held whether the grant made in favour of Sripathi Ariga was to him exclusively or not, is a matter of evidence. There is nothing wrong in it. There is no infirmity in the order passed by the trial court and hence, M.F.A.No.4989/2018 has to be dismissed.
9. With regard to the order passed by the trial Court on I.A.2, it is his argument that the trial court has passed the order which the plaintiffs have not claimed. Therefore, there is illegality in the said order.
10. The trial court, on the basis of the materials placed before it, came to the conclusion that ‘B’ schedule are possessed by the plaintiffs. With regard to the occupancy rights granted by the Tribunal in favour of Sripathi Ariga on 18.05.1981, it is held by the trial court that the question, whether ‘B’ and ‘C’ schedule properties belonged to the joint family or not, or absolute property of Sripathi Ariga is to be decided only after the conclusion of trial. The serious dispute is only with regard to ‘C’ schedule property. Since the revenue records show that the said property stands in the name of the defendants, if the plaintiffs are restrained from causing interference with the possession of defendants in respect of the ‘C’ schedule property, no hardship will be caused to any one.
11. With regard to ‘B’ schedule property, it appears that submission was made on behalf of the defendants that they have no intention to sell or alienate the suit properties. However, taking into consideration the fact that the properties stand in the name of the 1st plaintiff, it appears that the trial court granted an order of injunction against the defendants restraining them from interfering with the plaintiff’s possession of ‘B’ schedule property.
12. As argued by the learned counsel Sri.G. Balakrishna Shastry, the facts appear to be complicated. The documents show that P.Nagamma became a chalageni tenant under her mother Kusumavathy. After her death, one of her sons namely, Sripathi Ariga applied for grant of occupancy rights and it was granted in his favour. After the grant, revenue records were mutated in the name of Sripathi Ariga. The plaintiffs say that the said grant enures to the benefit of the entire family as their mother was cultivating the land as a tenant. The same is refuted by the defendants.
13. The above factual aspects indicate, a case being made out for trial. The defendants have to prove that the grant was made exclusively in the name of Sripathi Ariga. As rightly expressed by the trial court, no decision can be given at this stage. However, the revenue entries stood in the name of Sripathi Ariga and after his death, the names of the defendants were entered. If really, the plaintiffs dispute the said grant, I think that the plaintiffs should have challenged the same. Of course, it can be said that their inaction to challenge, does not take away their right and that the trial court has to take a decision in this regard. As has been held by the trial court, ‘C’ schedule property appears to be in the possession of defendants. Therefore, this finding by the trial court need not be disturbed. Though the defendants have contended in the written statement that ‘B’ and ‘C’ schedule properties are also in their possession, the application appears to have been made by the plaintiffs as the possession of ‘B’ schedule property appears to be with them.
14. The trial court appears to have struck balance between the parties. Just because the order of injunction has been passed against the plaintiffs in respect of ‘C’ schedule property, it does not mean that they have lost their right. It is a matter which has to be decided after recording the evidence. It is well established view that any opinion expressed by the trial court at the time of deciding application for temporary injunction, will not influence the Court at the time of deciding the suit on merits.
15. Sri.G.S.Balakrishna Shastry referred to the Commissioner’s report, but Sri.B.S. Sachin submits that the said order has been set aside by this Court in a writ petition. Therefore, any report given by the Commissioner cannot be looked into.
16. I find that the trial court has exercised its discretion properly. I do not find any good ground to interfere with the impugned orders passed by the trial court. In view of this, I proceed to pass the following:-
ORDER M.F.A.Nos.4989/2018 and 4791/2018 are dismissed.
SD/- JUDGE Srl.