IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO.3620 OF 2016 (CPC) BETWEEN 1. SMT. NARASAMMA AGED ABOUT 70 YEARS S/O LATE ANANTHA RAMAIAH 2. SRI. KEMPEGOWDA AGED ABOUT 52 YEARS S/O LATE ANANTHA RAMAIAH 3. SRI. MUNIRAJU AGED ABOUT 43 YEARS S/O LATE ANANTHA RAMAIAH APPELLANT NOS.1 TO 3 ARE R/AT KOLIPURA VILLAGE B.K.HALLI POST-562 149 UTTHANAHALLY DHAKLE JALA HOBLI, BANGALORE NORTH TALUK 4. SMT. KEMPAMMA AGED ABOUT 48 YEARS W/O NARASAPPA D/O LATE ANANTHA RAMAIAH BANDIKODIGEHALLI VILLAGE & POST, JALA HOBLI BANGALORE NORTH ADDL. TALUK-562 149 5. SMT. SHARADAMMA AGED ABOUT 40 YEARS W/O RAMACHANDRAPPA D/O LATE ANANTHA RAMAIAH HUNEGAL VILLAGE GUNDLGURKI POST CHIKKABALLAPURA TALUK & DISTRICT -562 101 ... APPELLANTS (BY SRI. B. S. NAGARAJ, ADV.) AND 1. SMT. AKKAMMA AGED ABOUT 90 YEARS W/O LATE HANUMANTHARAYAPPA 2. SRI. SHIVANNA AGED ABOUT 65 YEARS S/O LATE HANUMANTHARAYAPPA 3. SRI. GOVINDAPPA AGED ABOUT 62 YEARS S/O LATE HANUMANTHARAYAPPA 4. SRI. CHIKKA ANJINAPPA AGED ABOUT 60 YEARS S/O LATE HANUMANTHARAYAPPA 5. SRI. GOPAL KRISHNA AGED ABOUT 57 YEARS S/O LATE HANUMANTHARAYAPPA 6. SRI. CHANDRASEKHAR AGED ABOUT 53 YEARS S/O LATE HANUMANTHARAYAPPA 7. SMT. RADHAMMA AGED ABOUT 53 YEARS D/O LATE HANUMANTHARAYAPPA 8. SRI. DEVARAJU AGED ABOUT 50 YEARS S/O LATE HANUMANTHARAYAPPA 9. SMT. ANJINAMMA AGED ABOUT 53 YEARS D/O LATE HANUMANTHARAYAPPA RESPONDENT NOS.1 TO 9 ARE R/AT KOLIPURA VILLAGE UTTANAHALLI DHAKLE B.K.HALLI POST – 562 149 JALA HOBLI, BANGALORE ADDL. NORTH TALUK – 562 149 10. SRI KRISHNAPPA SINCE DEAD BY LRS 10(a) SMT. THANGAMMA AGED ABOUT 70 YEARS W/O LATE KRISHNAPPA R/AT KOLIPURA VILLAGE UTTANAHALLI DHAKLE B.K.HALLI POST – 562 149 JALA HOBLI, BANGALORE ADDL. NORTH TALUK – 562 149 10(b) SRI. ASHWATHAPPA AGED ABOUT 50 YEARS S/O LATE KRISHNAPPA R/AT KOLIPURA VILLAGE UTTANAHALLI DHAKLE B.K.HALLI POST – 562 149 JALA HOBLI, BANGALORE ADDL. NORTH TALUK – 562 149 10(c) SMT. CHANNAMMA AGED ABOUT 47 YEARS W/O CHANNEGOWDA D/O LATE KRISHNAPPA KOIRA VILLAGE & POST562 110 KUNDANA HOBLI, DEVANAHALLI TALUK, BANGALORE DISTRICT 10(d) SMT. SUJATHA K. AGED ABOUT 45 YEARS W/O G. RAMAMURTHY D/O LATE KRISHNAPPA NO.24, BEHIND OLD POST OFFICE ROAD, YELHANKA BANGALORE 64 VIDE ORDER DATED 16.01.2018 AMENDED CAUSE TITLE LR’S 10(a) TO 10(d) 11. SMT. UMA DEVI AGED ABOUT 52 YEARS W/O LATE NANJEGOWDA 12. SRI. SUNIL AGED ABOUT 24 YEARS S/O LATE NANJEGOWDA 13. SMT. MANJULA AGED ABOUT 22 YEARS D/O LATE NANJEGOWDA 14. SRI. PRAVEEN AGED ABOUT 20 YEARS S/O LATE NANJEGOWDA 15. SRI. SHAMMANNA AGED ABOUT 57 YEARS S/O LATE ANANTHA RAMAIAH RESPONDENT NOS. 11 TO 15 ARE R/AT KOLIPURA VILLAGE UTTANAHALLI DHAKLE B.K.HALLI POST-562 149 JALA HOBLI, BANGALORE ADDL.NORTH TALUK 16. SMT. MUNIYAMMA AGED ABOUT 60 YEARS W/O KRISHNAPPA SHETTIGERE VILLAGE JALA HOBLI, DODDA JALA POST BANGALORE NORTH ADDL. TALUK-562 157 17. M/S ADARSH DEVELOPERS NO.10, VITTAL MALLYA ROAD BANGALORE-560 001 REP BY ITS PARTNER B.M.KARUNESH ... RESPONDENTS (BY SRI. M. RAMA MOHAN, ADV. FOR M/S. RAMA MOHAN ASSTS. FOR R1 – R6 & R8; SRI. VISHWANATH R. HEGDE, ADV. FOR R17, R7, R9, R10(a), R10(b), R10(c), R10(d) R11, R12, R13, R14 & R15. R16-SERVED; SRI. M. S. VARADARAJAN, ADV. FOR PROPOSED IMPLEADING APPLICANT AS R18-R20) THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DATED 18.04.2016 PASSED ON IA NO.1 IN O.S. NO. 854/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC DEVANAHALLI, ALLOWING IA NO.1 FILED UNDER ORDER 39 RULE 1 & 2 OF CPC.173(1) OF CPC.
THIS MFA COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal coming on for admission along with I.A.Nos.1 of 2016, 1 of 2018, 1 of 2019 and 2 of 2019, with the consent of the learned counsel for both the parties, is taken up for final disposal.
The application I.A.No.1 of 2016 is filed by the appellants seeking to grant an ad-interim order of temporary injunction restraining the defendants – respondents from alienating the items of suit schedule properties as mentioned in the said application.
I.A.No.1 of 2018 is a further application filed by appellants seeking for an ad-interim order of temporary injunction restraining the respondents from putting up construction and changing the nature of the land with respect to the items of suit schedule properties as mentioned in the said application.
I.A.No.1 of 2019 is an application filed by three applicants who claim that they have an interest in the properties and hence they are proper and necessary parties to the litigation and thereby seeking that they be impleaded in this appeal as Respondents Nos.18 to 20.
I.A.No.2 of 2019 is an application filed by the impleading applicants who propose to be impleaded as Respondents Nos.18 to 20, seeking to vacate the order of status quo passed by this court in respect of Item Nos.5, 10 and 14 of the suit schedule properties in respect of which they are the owners.
2. The present appeal is directed against the order passed by the Senior Civil Judge & JMFC, Devanahalli, in O.S.No.854/2015 on I.A.No.1 filed by the appellants / plaintiffs under Order 39 Rules 1 and 2 read with Section 151 CPC. The said application was filed seeking for an ad-interim order of temporary injunction restraining the defendants from changing the nature of the land, alienating the suit schedule properties, creating encumbrances, charge, lien, etc., in any manner over the suit schedule properties depicted therein.
The said I.A.No.1 came to be allowed in part in respect of Item No.4 and Item Nos.7 to 9 against Defendants 1 to 9 who are arraigned as respondents herein. However, the application in respect of Item Nos.1 to 3, 5, 6, 10 to 14 and against Defendant No.17 stood dismissed.
The present appeal is filed challenging the impugned order praying to set aside that portion of the order rejecting the application in respect of Item Nos.1 to 3, 5, 6, 10 to 14 and against defendant No.17.
3. The factual matrix of this appeal is as under:
The Plaintiffs/Appellants herein filed a suit in O.S.No.854/2015, for partition and separate possession of their respective one-third share over the 14 suit schedule properties depicted therein. It was the case of the plaintiffs that themselves and defendants 1 to 16 were joint family members and the suit schedule properties were joint family properties and as such partition was not effected. It was their further case that defendants were trying to alienate the suit schedule properties by changing the nature of the agricultural lands and were also trying to create third party rights and also refused to give the plaintiffs’ share. Therefore, they had filed a suit and an application for temporary injunction.
However, defendants 1 to 6 and 8 filed objections denying the case of the plaintiffs. According to them, Item No.4 and 7 to 9 were only ancestral joint family properties; Item Nos. 1 and 2 were acquired by Hanumantharayappa, granted to him under LRF No.12 and 13/1974-75; further that Item No.3 did not belong to either plaintiffs or defendants and that it belonged to one Subbegowda who was not impleaded as a party to the suit; Item Nos.5 and 10 did not belong to either plaintiffs or defendants and it belonged to one B. Eregowda and Anjinappa; Item Nos.11 to 13 were purchased by Hanumantharayappa under sale deed dated 20.05.1968; Item No.14 was the self-acquired property of the second defendant which was purchased as on 30.06.2005. But however, that the plaintiffs have filed the suit suppressing all these material facts. Further, that one Anantharamaiah had acted as a consenting witness in respect of sale of Sy.No.127/B6 and his name was included at the instance of the purchasers. It was further contended by the defendants that there was already severance of status in the year 1959 itself and there was no joint family prevailing as on that date.
In the said suit, Defendant No.17 – Respondent No.17 herein had filed objections contending that the plaintiffs had no manner of right over Item Nos.1 and 2 since the said items belonged to Defendant Nos.2 to 6 and 8 and that they have also converted the land and also executed registered Joint Development Agreement as on 30.03.2011 and also GPA with registered agreement on 25.07.2014 for valuable consideration. Thus, it was stated that Defendant No.17 had invested huge amounts in development of the said properties. In view of the same, the plaintiffs and defendants 7, 9, 10 to 16 had no manner of right over Item Nos.1 and 2 of the suit schedule properties and thus prayed for dismissal of I.A.No.1.
The court below, considering the said contentions raised by both the plaintiffs and defendants, formulated points for its consideration and answered the points by allowing I.A.No.1 in part in respect of Item No.4 and Item Nos.7 to 9 against Defendants 1 to 9 who are arraigned as respondents 1 to 9 herein. However, the application in respect of Item Nos.1 to 3, 5, 6, 10 to 14 and against Defendant No.17 – Respondent No.17 herein stood dismissed. It is that portion of rejection of the application in respect of Item Nos.1 to 3, 5, 6, 10 to 14 and against Defendant No.17 which is under challenge in this appeal.
4. Learned counsel Shri B.S. Nagaraj appearing for the appellants / plaintiffs has taken me through certain documents in order to substantiate his case. He contends that the court below, without considering the fact that Byranna - the second son of the first wife and Annaiappa – first son of the second wife were only separated from the joint family while the others namely plaintiffs and defendant Nos.11 to 16’s father Anantharamaya, defendant Nos.2 to 9’s father Hanumantharayappa and Defendant No.10 Krishnappa continued in the joint family and there was no separation of the joint family between plaintiffs and defendants 1 to 16 as per the registered partition deed dated 10.06.1959, erred in holding that there was severance of status in the year 1959 itself, which is totally incorrect and unsustainable in law.
Further, the court below failed to appreciate the fact that as per the partition deed dated 10.06.1959, there was no severance of joint family property and no share was assigned to the plaintiffs’ father and defendants’ father and defendant No.10 and they continued to enjoy joint family status and thus he contends that the property acquired in the name of kartha is only a joint family property unless he proved that the same were not acquired from the nucleolus of the joint family. He contends that by the said partition deed dated 10.06.1959, only two sons were separated from the joint family. In spite of the same, he contends that the court below committed an error in dismissing the application for grant of temporary injunction in respect of Item Nos.1 to 3, 5, 6, 10 to 14 holding that there is severance of joint family, which is wholly illegal and unsustainable.
It is the further contention of the learned counsel that there is a strong presumption in favour of Hindu brothers constituting a joint family. In that, it is for the persons alleging severance of joint Hindu family, to prove the same, as held by the Apex Court in Bharath Singh’s case reported in AIR 1966 SC 405.
It is the further contention of the learned counsel that the court below committed an error in not considering that balance of convenience and irreparable loss and injury had been caused to the appellants / plaintiffs in view of it holding that there is severance of joint family status. In support of his contentions, the learned counsel for the appellants has placed reliance on the following citations:
i) M.R. Rajasekharappa vs. H.N. Siddananjappa (ILR 1990 KAR 2303), wherein it is held that, ‘It is a settled position of law that when once it is established that the joint family possessed suffice nucleus, the onus shifts on to the person who claims the property as self- acquired.”
ii) Ramappa Basappa Palled and other v/s.
Smt. Basava and others [ILR 1993 KAR 1865] wherein it is held that, “Burden is cast on the kartha to prove that property acquired by him is his self-acquired property when it is shown that the joint family possessed sufficient nucleus of which he had the control.”
iii) Ishwaragouda & others V/s Mallikarjun Gowda and others ((2009) 1 SCC 626)) wherein it is held that, “Tenancy and Land Laws – Karnataka Land Reforms Act, 1961 (10 of 1962) – S.133- Jurisdiction of Land Tribunal – Subject matter over which land Tribunal has exclusive jurisdiction – partition suit distinguished from demarcation of possession rights of parties over a particular piece of land – Thus while civil court can have exclusive jurisdiction to decide a partition suit, Land Tribunal shall have exclusive jurisdiction to decide the proprietary/possession rights over a particular piece of land (which may include the question as to whether the joint family or one of the members was a tenant).”
iv) Appi Belchadthi & Ors V/s. Sheshi Belchadthi & Ors.(1982 (2) KLJ 565) wherein it is held that, “The Civil Court has jurisdiction to determine the question whether the occupancy right granted by the Land Tribunal in respect of one member of a joint family belonged to joint family.”
v) Keshava V/s. Land Tribunal, Kumta (1983(1) KLJ 61) wherein it is held that, the Tribunal has no power to decide the shares of the heirs and apportion. The only course open to the Tribunal is to choose one of the rival claimants for offering occupancy rights reserving opportunity to the other claimants to establish their rights in civil courts.
vi) Basavaraj M. V/S State of Karnataka (ILR 1982 KAR 1304) and others wherein it is held that, the word ‘tenant; must be construed in the light of the other definitions such as ‘to cultivate personally’, ‘family’ and joint family; if the definition of ‘tenant’ is read in isolation without attaching any importance to the words ‘cultivate personally’ as found in this definition here may be sustenance for the contention canvassed.”
vii) Balagouda Alagouda Patil and Others v/s Babasaheb Ramagonda Patil [ILR 1999 KAR 831] wherein it is held that, the tenancy rights if acquired by a member of the family shall be held to be for the benefit of the entire family.
viii) 2004 (8) SCC Page 488 – followed in W.P.No.23281/2018 GM CPC Relying on these citations, the learned counsel for the appellant prays for allowing the appeal and setting aside the order dated 18.04.2016 passed by the Senior Civil Judge & JMFC, Devanahalli on I.A.No.1 in the suit in O.S.No.854/2015 in so far as rejecting the application in respect of item Nos.1 to 3, 5, 6, 10 to 14 and against defendant No.17 and consequently to allow I.A.No.1.
5. Per contra, learned counsel Shri Rama Mohan appearing for Respondent Nos.1 to 6 and 8 has filed common objections to the applications filed by the appellants under Order 39 Rule 1 and 2 of the CPC contending that the prayer in the said applications seeking to restrain the respondents 1 to 6 and 8 from putting up construction and changing the nature of the land of Item Nos.1 to 3, 5 and 6, 10 to 14 of the suit schedule properties is wholly frivolous and not maintainable and the applications are liable to dismissed in limine. It is contended that the same are filed with malafide intention.
He contends that the applications are not maintainable in view of the fact that there is more than one relief sought in the application filed on 30.10.2018 and hence the same is barred under Rule 23 of the Karnataka Civil Rules of Practice. Further, it is contended that they have not made the land owners of items nos.3, 5, 10 and 14 as parties to the suit / present appeal.
Prior to 10.06.1959, it is stated that item nos.4, 7, 8 and 9 of the suit schedule properties were in joint possession and enjoyment by the appellants’ father, respondents 1 to 6 & 8’s father and defendant no.10.
However, after the registered partition, except the four items, there is no ancestral property left for partition amongst the appellants and the above named respondents. The appellants have falsely included the properties which were granted in the name of Hanumantharayappa in his individual capacity and the properties which were his self-acquired properties. Particularly, it is stated that item nos.1 and 2 were granted to Hanumantharayappa who is the husband of respondent no.1 and father of respondents 2 to 9, as he was cultivating the same vide LRF No.12 and 13/1974- 75 dated 20.10.1976. After his demise, the properties were mutated in favour of his wife and children. The suit schedule property in item no.2 was subject matter of a suit when one Subbegowda and others tried to interfere and claim title and thereby it was clearly declared on 10.10.2014 that respondents 1 and 2 are the absolute owners of item no.2. The appellants though had knowledge of the same, they did not make any effort to implead themselves as plaintiffs or defendants in the said suit, which clearly shows that they do not have any right, title or interest over the said items. In order to evidence the same, the respective RTCs of items 1 and 2 and the judgment and decree in O.S.No.659/2008 are also produced at Annexures C to E respectively.
It is the further contention of the learned counsel Rama Mohan that Item no.3 of the suit schedule property neither belongs to appellants nor respondents but belongs to one Subbegowda, S/o. Annaiayappa. Hence, appellants cannot claim any relief against the said property without making the said Subbegowda as a party before the trial court or this court.
He contends that Item Nos.4, 7 to 9 are the only items left for partition, in respect of which as per mutual understanding, the parties are said to be already enjoying their respective possession.
In so far as Item Nos.5 and 10, it is contended that the said properties do not belong to either appellants or respondents but belongs to one B. Eeregowda and B. Anjinappa, in respect of which RTCs are produced to evidence the same. It is his further contention that property located in Sy.No.69/1 was also granted in favour of husband of first respondent and father of respondents 2 to 9 in LRF No.12, 13/1974-75 vide order dated 20.10.1976 in his individual capacity and hence appellants have no right, title or interest over the same. The RTCs in respect of items 3 to 10 are produced at Annexures F to N.
He further contends that items 11, 12 and 13 have been purchased by Hanumantharayappa from B. Anjinappa vide sale deed dated 20.05.1968 out of his self earning and hence are his self-acquired properties, in respect of which RTCs are produced at Annexures O to R. Hence, he contends that the said items are also falsely claimed by appellants.
Item no.14 is said to be the self-acquired property of Respondent No.2 along with one G. Aruna on 30.06.2005, in respect of which the appellants do not have a right to make any claim without impleading the said Aruna as a party.
Further, the learned counsel Rama Mohan contends that the appellants have suppressed the fact that though being joint family members they have sold Sy.No.127/B6 measuring 2 acres of land in Huttanahalli village in favour of one Padmini Manjunath, in respect of which the late Anantharamiah’s name was included in the sale deed as a consenting witness. The same demonstrates that appellants 2 and 3 though have knowledge of the same, they have claimed the said Sy.No.127/B-6 as a joint family property.
Further, the joint family status has severed after 1959 and the said severance of status has been suppressed by the appellants who illegally claim the properties granted to Hanumantharayappa in his individual capacity and his other self-acquired properties.
Hence, the learned counsel contends that these and other facts clearly demonstrates that the appellants have not made out a prima facie case and also that the balance of convenience is also not in their favour. The applications for stay have been filed only in order to harass and extort money from respondents 1 to 6 and 8 and hence the learned counsel contends that the same ought not to be entertained by this court.
In support of his contention, the learned counsel Rama Mohan has placed reliance on the following citations:
i) V. Krishna Char and others vs. Sundara Murthy and Another (2019 (2) KCCR 1437), the relevant portion of which reads as under:
“The suit is one for partition. Along with the suit, the plaintiffs have also filed application under Order 39 Rules 1 and 2 to restrain the defendants from alienating the suit schedule properties on the ground that they are in joint possession of the suit schedule properties. The suit schedule properties are joint family properties having granted by the Land Tribunal. Even though the lands are granted in the name of first defendant who is the brother of the plaintiffs and other defendants, the grant is in favour of the entire family. The trial Court on consideration of the materials placed by both the plaintiffs and defendants has come to the conclusion that the prima facie material produced by the first defendant are sufficient to disbelieve the version of the plaintiffs, since the plaintiffs have not produced any documents to substantiate their version. The court was of the opinion that without there being any material on record, the version of the plaintiffs cannot be believed for grant of relief of injunction.
6. The main ingredient to seek injunction is that one should establish the prima facie case, balance of convenience and the injury to be suffered if the injunction is refused. The trial Court on consideration has come to the conclusion that the plaintiffs have neither made out prima facie case nor balance of convenience in their favour.”
ii) R. Dilip Kumar vs. S. Ramu (ILR 1992 KAR 2905), wherein the relevant portion reads as under:
“6. … Under the Indian law, an admission made by a party in a plaint signed and verified by him may be used as evidence against him in other suit. In other suits, this admission cannot be regarded as conclusive, and it is open to the party to show that it is not true."
7. …"Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong.”
iii) M.N. Aryamurthi and another vs. M.L. Subbaraya Setty (dead) by his LRs and others (AIR 1972 SC 1279), wherein the relevant portion reads as under:
“ (A) Hindu Law – Joint Family – Father – A coparcener including the father cannot devise by will joint family property or any part thereof because the property passes by survivorship to other co-parceners on his death when the will takes effect and there is nothing left upon which it can operate.
… (D) Hindu Law – Partition – Effect of severance in status – Members become tenants- in-common – Subsequent acquisition by a member even with joint fund in his possession belongs to him alone and other members cannot claim a share therein.”
Learned counsel Shri Rama Mohan on behalf of Respondents 1 to 6 and 8 contends that these citations are squarely applicable to the facts and circumstances of the present case and hence the same may be considered and the appeal preferred by the appellant may be dismissed as being devoid of merits.
6. Learned counsel Shri Vishwanath R. Hegde for Respondent No.17, as well has filed Statement of objections to I.A.No.1/2018 seeking ad-interim order of temporary injunction contending that the said application is false, frivolous, vexatious and not maintainable either in law or on facts and are liable to be dismissed. The said stay application ought to have been filed before the court below where the suit is pending consideration, whereas the same having been filed before this court even before the admission of this appeal portrays the mischief on the part of the appellants. It is the further contention of the learned counsel that the prayer for grant of temporary injunction restraining Respondent No.17 from putting up construction and changing the nature of land on Item Nos.1 to 3, 5 & 6, 10 to 14 of the suit schedule properties has been rejected by the court below, which has remained unchallenged and has become final.
He further contends that Respondent No.17 in the appeal is concerned with Item Nos.1 and 2 of the schedule properties only and not with the remaining items of the schedule properties and has no objection for grant of any order in respect of all other items except item nos.1 and 2 of the schedule properties.
It is his further contention that Respondent No.17 – Adarsh Developers entered into two separate registered Joint Development Agreements dated 30.03.2011 in respect of Item Nos.1 and 2 of the suit schedule properties which were already got converted by the owners of the said land for non-agricultural residential purposes. On the basis of the Joint Development Agreements, Respondent No.17 had applied for grant of licence / sanction plan with the planning authority viz., Bangalore International Airport Area Planning Authority, Devanahalli, which was granted on 12.06.2014, a copy of which is also produced. Further, the said project has also been approved by the Real Estate Regulatory Authority Karnataka (RERA) which has also issued the registration certificate of project, copies of which have also been produced. It is further contended that the construction involved 112 units of residential villas with an estimated cost of Rs.245.89 crores and almost 50% of the construction has already been completed and further construction is also going on in full swing. Further, as per the agreement between the parties, Respondent No.17 is required to complete the construction and deliver possession of the owners’ share within two years six months from the date of sanction of plan, failing which Respondent No.17 would be liable to pay damages. On account of the conduct of the appellants, Respondent No.17 has not been able to complete the construction in all respects and deliver possession of the owners’ share. It is his further contention that the photographs produced by the appellants along with the application are highly misleading and do not reflect the true state of affairs prevailing on Item Nos.1 and 2 of the suit schedule properties and they do not pertain to the suit schedule properties at all.
The fact that Respondent No.17 has invested huge amount for development of the property has also been observed by the Trial Court in the impugned order. Hence, the learned counsel for Respondent No.17 contends that the appellants having not approached this court with clean hands, are not entitled for the discretionary order of temporary injunction sought for in the application I.A.No.1/2018 and consequently is liable to be dismissed.
The learned counsel for Respondent No.17 has relied on the following citations in support of his case:
i) D.S. Lakshmaiah and another vs. L. Balasubramanyam and another (AIR 2003 SC 3800), wherein the relevant portion reads as under:
“18. The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available.”
ii) Mandali Ranganna and Ors. Vs. T. Ramachandra and Ors (AIR 2008 SC 2291), wherein the relevant portion reads as under:
“22. In Seema Arshad Zaheer and others vs. Municipal Corporation of Greater Mumbai and others ((2006) 5 SCC 282), it was held thus:
“The discretion of the Court is exercised to grant temporary injunction only when the following requirements are made out by the plaintiff; (i) existence of a prima facie case as pleaded, necessitating protection of the plaintiff’s rights by issue of a temporary injunction; (ii) when the need for protection of the plaintiffs rights is compared with or weighed against the need for protection of the defendants rights or likely infringement of the defendant’s rights, the balance of convenience tilting in favour of the plaintiff; and (iii) clear possibility of irreparable injury being caused to the plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff’s conduct is free from blame and he approaches the court with clean hands.
23. Rightly or wrongly construction have come up. They cannot be directed to be demolished, at least at this stage. Respondent No.7 is said to have spent three crores of rupees. If that be so, in our opinion, it would not be proper to stop further constructions.”
(emphasis supplied) ii) Mohd. Mehtab Khan and others vs. Khushnuma Ibrahim Khan and others ((2013) 9 SCC 221)), wherein the relevant portion reads as under:
“20. In a situation where the learned Trial Court on a consideration of the respective cases of the parties and the documents laid before it was of the view that the entitlement of the plaintiffs to an order of interim mandatory injunction was in serious doubt, the Appellate Court could not have interfered with the exercise of discretion by the learned Trial Judge unless such exercise was found to be palpably incorrect or untenable. The reasons that weighed with the learned Trial Judge, as already noticed, according to us, do not indicate that the view taken is not a possible view. The Appellate Court, therefore, should not have substituted its views in the matter merely on the ground that in its opinion the facts of the case call for a different conclusion. Such an exercise is not the correct parameter for exercise of jurisdiction while hearing an appeal against a discretionary order. While we must not be understood to have said that the Appellate Court was wrong in its conclusions what is sought to be emphasized is that as long as the view of the Trial Court was a possible view the Appellate Court should not have interfered with the same following the virtually settled principles of law in this regard as laid down by this Court in Wander Ltd. vs. Antox India (P) Ltd. (1990 Supp SCC 727). Para 14 of the aforesaid judgment which is extracted below would amply sum up the situation:
“14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion….”
(emphasis supplied) Thus, the learned counsel for Respondent No.17 sums up that I.A.1 of 2018 filed by the appellants seeking temporary injunction be dismissed and consequently, the appeal as well be dismissed as being devoid of merits.
7. In this appeal the learned counsel Shri M.S. Varadarajan appearing for the proposed Respondents 18 to 20 has filed an application I.A.No.1 of 2019 with a prayer to implead the proposed three Impleading applicants namely, B. Eeregowda, B. Anjinappa and Aruna as Respondents 18 to 20 in this appeal. In the affidavit filed in support of his application, it is stated that they are proper and necessary parties to the appeal in view of the fact that Item NOs.5, 10 and 14 of the suit schedule properties are the self-acquired properties of the said impleading applicants and they are not joint family properties of appellants and respondents. In order to evidence the same, he has produced certified copy of sale deed, judgment and decree and RTC in respect of Item No.5; Index of land, Record of Rights and RTC in respect of Item No.10 and Sale Deed, RTC and mutation in respect of Item No.14. Hence he pleads that the impleading applicants namely, B. Eeregowda, B. Anjinappa and Aruna may be ordered to be impleaded as Respondents 18 to 20 in this appeal.
8. Further, the said counsel Shri M.S. Varadarajan appearing for the proposed Respondents 18 to 20 who propose to be impleaded in this appeal, has also filed I.A.No.2 of 2019 for vacating the order of status quo with respect of alienation of the properties granted by this court contending that Item Nos.5, 10 and 14 of the suit schedule are not joint family properties of appellants and defendants. The said properties were their self-acquired properties. Thus items 5, 10 and 14 were not joint family properties of appellants and that they have no right to claim any share in those properties. Even the court below has clearly held so and has only passed orders in respect of item Nos.4, 7 to 9 and has rejected the relief in respect of item nos.1 to 3, 5, 6, 10 to 14 and against Defendant No.17. Though they being absolute owners of item nos.5, 10 and 14, the appellants have not made them parties either in the suit before the trial court or respondents before this court. Hence, the learned counsel prays that the status quo order passed by this court in respect of item nos.5, 10 and 14 may be vacated.
9. The counsel for the appellants has filed Statement of Objections to I.A.No.2/2019 for vacating stay contending that the father of the impleading applicants late Byranna and late Annaiappa were separated from the joint family by allotting their respective shares as per registered partition deed dated 10.06.1959. However, that plaintiffs father late Anantharamaiah and defendants father late Hanumantharayappa and late Krishnappa however continued in the joint family as per the registered partition deed and therefore, the proposed respondents are no longer members of the joint family and as such they are not necessary nor proper parties to the suit or this appeal. Hence, he contends that their impleading application is liable to be dismissed.
10. On a careful consideration of the contentions raised by the learned counsel for the appellants, respective respondents and the impleading applicants in this appeal, I find it relevant to refer that the suit is field by the plaintiffs against the defendants for partition in respect of Item Nos.1 to 14 of the suit schedule properties. But the plaintiffs have taken a contention in the suit that the said properties are joint family properties and there is no partition effected upon the plaintiffs or the defendants. But, the defendants are trying to alienate the suit schedule properties.
But Respondent Nos.1 to 6 and 8 have filed objection in detail contending that only Item Nos.4, 7, 8 and 9 are ancestral joint family properties and appellants have included all other items with malafide intention.
Further, Respondent No.17 – M/s. Adarsh Developers have also filed objections contending that they are concerned only with Item Nos.1 and 2 of the suit schedule properties in respect of which items they have entered into a Joint Development Agreement and have invested huge amounts and have completed 50% construction of apartments and praying that if an order of injunction is granted, they would be put to irreparable loss and hardship.
Counsel appearing for proposed Impleading applicants as Respondent Nos.18 to 20 have also filed application for impleading themselves and also an application for vacating the order of status quo granted by this court claiming that they are owners of Item Nos.5, 10 and 14 of the suit schedule properties, to which the counsel for the appellants / plaintiffs have also filed objections.
11. On going through contentions of the learned counsel and having regard to the material on record, I find that grant of interim injunction during the pendency of a legal proceeding is a matter resting with the exercise of discretion of the court. While exercising the discretion, the court has to apply the following tests:
a) Whether the plaintiff has a prima facie case;
b) Whether the balance of convenience is in favour of the plaintiff; and c) Whether the plaintiff would suffer irreparable injury if the prayer for interim injunction is disallowed.
Prima facie case and prima facie title are not the same and are distinct. It is not desirable to record decision on merits when deciding prima facie case. The prima facie case really means that there is a case which required trial and that the case is not the one based on erroneous and vexatious grounds. When deciding the question prima facie case, it is generally not desirable and open for the court to record a decision on the merits of the pleas taken in the suit and those findings will not have any binding effect on the parties at the time of the final hearing of the case and it shall always be open to raise respective contentions and it is for the court to decide according to law at that stage.
The object of interim injunction is to protect plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection has, however, to be weighed against the corresponding need of the defendant to be protected against injury resulting from preventing him exercising legal right for which he could not adequately be compensated. The court must weigh the need of interim injunction and determine where balance of convenience lies in order to protect plaintiff, while granting an interim injunction in his favour.
Further, jurisdiction of the court to interfere with an order of interim or temporary injunction is purely equitable and therefore, the court on being approached, apart from other consideration, will also look at the conduct of the party invoking the jurisdiction of the court. The court may refuse to interfere unless his conduct was free from blemish. Since the relief is wholly equitable in nature, the party invoking the jurisdiction of the court has to show that he himself was not at fault and that he himself was not responsible for bringing out the state of things complained of and further that he was not unfair or inequitable in his dealing with the party against whom he was seeking relief. The conduct of the plaintiff must be fair and honest. These considerations will arise not only in respect of person who seeks an order of injunction but also the defendant who approaches the court for vacating the ad-interim or temporary injunction order already granted in the pending proceedings.
Having regard to the facts and circumstances of the case that Respondent No.17 – Adarsh Developers have invested huge amounts for construction of villas in Item Nos.1 and 2 of the suit schedule property and in view of the fact that the plaintiffs / appellants having approached the court belatedly after more than half of the construction is over, itself indicates the conduct of the appellants.
In the given situation of the case between the plaintiffs and the defendants respectively in respect of suit Item Nos.1 to 14 as depicted in the suit schedule properties, prayer for grant of injunction order is in the discretion of the court, but several factors need to be considered before granting any such relief as sought for. The conduct of the party who has approached the court for seeking injunctive order against the defendants said to be a party to the proceedings also requires to be looked into. But the object of the interim injunction granted in a suit filed by the plaintiff against the defendant is to protect the plaintiff against the injury by violation of his rights. But the same has been taken into consideration by the court of the Senior Civil Judge and JMFC, Devanahalli. The suit in O.S.No.854/2015 is pending for adjudication between the plaintiffs and the defendants where Respondents 1 to 6 and 8 have entered into a Joint Development Agreement with Defendant No.17 said to be arraigned as Respondent No.17 herein in respect of Item Nos.1 and 2 of the suit properties, which is required to be established by the plaintiffs and also defendants respectively in relation to the suit schedule properties depicted therein. Therefore, in this appeal, at this stage, this court cannot dwell into the issues relating to the documents placed by either the plaintiffs or the defendants. The same requires to be tested before the court below where the parties to the proceedings are required to establish their rights by preponderance of probabilities. Therefore, in this appeal, it does not require to elaborate all the contents made in the documents placed by both the plaintiffs and the defendants. The same has to be appreciated by the court below where the case is pending between the parties, on the merits of the matter. When the suit in O.S.No.854 of 2015 filed for partition and separate possession in respect of the suit schedule properties is very much pending before the court below, I find it appropriate for the parties to let in evidence and establish their case before the very court. Hence, in my opinion, the order on I.A.No.1 in O.S.No.854/2015 passed by the Senior Civil Judge and JMFC, Devanahalli, under Order 39 Rules 1 and 2 read with Section 151 CPC does not suffer from any infirmity and also does not appear to be either arbitrary, capricious and perverse. Hence, the present appeal is dismissed.
Insofar as I.A.No.1/2019 filed by the proposed impleading applicants seeking to come on record as Respondents 18 to 20, the said application requires to be considered by the court below where the case in O.S.No.854/2015 is pending. The court below shall give an opportunity to both the parties for consideration of the said application I.A.No.1/2019 filed by the impleading applicants who seek to come on record as Respondents 18 to 20.
In view of the dismissal of the appeal, I.A.No.1/2016 and I.A.No.1/2018 filed by the appellants seeking temporary injunction are also dismissed as a consequence.
I.A.No.2/2019 filed by the proposed impleading applicants seeking to vacate the status quo order of this court also stands disposed of, as it does not arise for consideration in view of the dismissal of this appeal.
As a consequence, Respondent No.17 herein is allowed to carry on the construction work in Item Nos.1 and 2 of the suit schedule properties, however, subject to the ultimate result of the suit in O.S.No.854/2015.
However, any observations made in this order at the stage of admission shall not influence the court below in any manner while considering the case in O.S.No.854/2015.
Sd/- JUDGE KS