IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE PRADEEP SINGH YERUR M.F.A. NO.3759 OF 2015 (CPC) BETWEEN:
SMT. K.S. POOVAMMA SINCE DECEASED BY HER LRS 1(A). SRI T. SRINIVAS H/O. LATE SMT. K.S. POOVAMMA AGED 84 YEARS 1(B). SRI MANOHAR S.
S/O. LATE SMT. K.S. POOVAMMA AGED 48 YEARS 1(C). SMT.S. PRATHIMA D/O. LATE SMT. K.S. POOVAMMA AGED 45 YEARS ALL ARE RESIDING AT NO.3 SUBBAIAH REDDY BLOCK ULSOOR, BENGALURU – 560 008 ... APPELLANTS (BY SRI N. RAVINDRANATH KAMATH, ADVOCATE) AND:
1. SRI KALAMANDA BHEEMAIAH S/O. LATE SUBBAIAH AGED ABOUT 62 YEARS 2. SMT. K.B. GOWARAMMA W/O. K.S. BHEEMAIAH AGED ABOUT 60 YEARS 3. SRI K.B. SUBBAIAH S/O. K.S. BHEEMAIAH AGED ABOUT 28 YEARS ALL ARE RESIDING AT ARAMERI VILLAGE VIRAJPET TALUK – 572 114 KODAGU DISTRICT ... RESPONDENTS (BY SRI ARUN PONNAPPA, ADVOCATE) ---
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER 43 RULE 1 (R) OF THE CODE OF CIVIL PROCEDURE, PRAYING TO CALL FOR ENTIRE RECORDS IN O.S.NO.124/2013 ON THE FILE OF SENIOR CIVIL JUDGE, VIRAJPET, ALLOW THIS APPEAL AND THEREBY SET ASIDE THE ORDER DATED 16.03.2015 IN O.S.NO.124/2013 ON I.A.NO.2 PRODUCED AT ANNEXURE-A ON THE FILE OF SENIOR CIVIL JUDGE AT VIRAJPET AND GRANT TEMPORARY INJUCTION AS PRAYED FOR IN I.A.NO.2 BY THE APPELLANTS HEREIN.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Heard learned counsel appearing for appellants and the learned counsel appearing for respondents.
2. This appeal is filed by the plaintiff aggrieved by the order dated 16th March 2015 passed by the learned Senior Civil Judge & JMFC at Virajpet in OS No.124 of 2013 on the application IA No.2 filed under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure of 1908, seeking for an order restraining the defendants – respondents from alienating the suit schedule properties either by sale, lease, mortgage, release, relinquishment or any other mode and also not to venture upon the construction of any new house or any other constructions in the suit schedule properties till the disposal of the suit. The said application came to be dismissed by the trial Court by an order dated 16th March 2015.
3. It is the case of the appellants that the original plaintiff, who is mother of the appellants, died on 13th November 2014 and that she had purchased the suit schedule properties out of her own resources as per the registered sale deed dated 17th June 1980 and that she has been in peaceful possession and enjoyment of the same as lawful owner. After purchase of property she has cleared the jungle and fenced the area to protect the suit schedule properties, planted the area with coffee plants and pepper vines. Further, she was getting all the agricultural activities done through the first defendant, who is her own brother. It is the case of the appellants that in the month of October 2013 she was informed that the defendants are making arrangements to dispose of the suit schedule properties to some third parties without her knowledge and consent. When she verified, she came to know that the first defendant has got executed a sale deed and sold the property to the defendant Nos.2 and 3, who are none other than wife and son of the first defendant, on the basis of the false General Power of Attorney alleged to have been executed by the original plaintiff.
4. It is the case of the original plaintiff that she had neither executed any GPA nor she agreed to dispose of the property to the first defendant. She further alleges that spurious documents have been created in fraudulent manner and the property has been transferred to defendant Nos. 2 and 3. It is stated that RTC of the suit schedule properties is in the name of defendant Nos. 1 to 3. All the records pertaining to sale of coffee payment, assessment receipt and other documents are in the custody of the first defendant as the suit schedule properties was managed by him. It is the apprehension of the appellant that the defendant Nos.1 to 3 would alienate the suit schedule properties thereby creating the third party rights, which would cause untold misery and irreparable loss, which cannot be compensated in terms of money. Therefore, the original plaintiff had filed the present suit against the respondents - defendants.
5. The respondents – defendants have filed their statement of objections and denied the allegation made by the original plaintiff and the appellants. It is the case of the first respondent that he is the brother of the original plaintiff and at the time of purchase of the suit schedule properties by the original plaintiff as she was running short of money, the first respondent and his sister Smt. Devammaji had contributed to the purchase of the suit schedule property in favour of the original plaintiff and that the original plaintiff could not cultivate the suit schedule properties as she was residing in Bengaluru and since she was in dire need of money for her family necessities, she canvassed to sell the suit schedule properties. Accordingly, first respondent being the brother of the original plaintiff came forward to purchase the said properties in the prevailing market value. Accordingly, the original plaintiff sold item No.1 of the suit schedule properties to the first respondent for a valid consideration of Rs.75,000/- and delivered the possession of the same. It is pursuant to this registered document, the first respondent cleared the jungle, cultivated the coffee, pepper, etc. and he is in peaceful possession and enjoyment of the same. With regard to item No.2 of the suit schedule properties, it is stated that original plaintiff has sold the said property by way of a registered sale deed dated 12th October 1995 to the respondent Nos.1 and 2. It is also the case of the respondents that after the purchase of item No.2 property, the respondent Nos.1 and 2 have converted the same into house site by taking necessary permissions and license. So also with regard to item No.3 of the suit schedule properties was purchased by the respondent Nos.2 and 3 as per the registered sale deed dated 12th July 2004. It is the case of the first respondent that the sale deed was executed after obtaining GPA from the original plaintiff and the same was attested by her own sister Smt. K.S. Devammaji. Pursuant to which revenue records have been mutated in the names of the respondents and they are in absolute possession and enjoyment of the suit schedule properties. It is stated by the respondents that the appellants are guilty of suppression of material facts and have not approached this Court with clean hands.
6. The appellants have filed an application for temporary injunction, which was vehemently opposed by the respondents. The learned counsel for appellants submits that he had secured an exparte order of temporary injunction on 21.12.2013 and which continued till 16.03.2015, wherein the learned Senior Civil Judge & JMFC at Virajpet after hearing the matter on merits, dismissed the said application.
7. Having heard the learned counsel for appellants and the respondents, a fair submission has been made by the learned counsel for the appellants that since the matter is of the year 2013 and the original suit has reached the stage of cross examination of PW1, in order to put an end to the waiting period before the trial Court, they would rather thrash out the matter before the trial Court. The learned counsel for respondents agrees to such suggestion and proposal put forth by the learned counsel for appellants. Under such circumstances, without going into the merits of the case, I feel it appropriate to dispose of the appeal by remanding it to the trial Court for consideration. Accordingly, I proceed to pass the following order:
ORDER (1) The parties are directed to maintain status-quo with respect to the suit schedule properties until disposal of the suit;
(2) The learned Senior Civil Judge & JMFC at Virajpet is hereby directed to dispose of the suit in OS No.124 of 2013, within an outer limit of six months, from the date of receipt of copy of this order;
(3) The parties are directed to co-operate with the Court for early disposal of the suit;
(4) It is needless to say that this Court has not expressed any opinion with regard to the merits of the suit;
(5) Accordingly, the appeal is disposed of. No order as to costs.
Sd/- JUDGE VK