IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF MARCH, 2019 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.39173/2018(GM-CPC) BETWEEN:
1. SMT. RADHAMMA, D/O SRI.G.RAMAIAH, W/O SRI A. LAKSHMINARAYANA, AGED ABOUT 47 YEARS, RESIDING AT VALLALAR NAGAR, KUMDEPALLI VILLAGE & POST, OPP. ASHOK LEYLAND (UNIT-2) HOSUR TALUK, KRISHNAGIRI DISTRICT.
2. SRI.R.LAKSHMANA MURTHY S/O SRI.G.RAMAIAH, AGED ABOUT 36 YEARS, RESIDING AT NO.121, RAMAKRISHNA BLOCK, 1ST MAIN, THYAGARAJANAGAR, BENGALURU.
3. SMT.HEMAVATHI D/O SRI.G.RAMAIAH, W/O SRI.S.RAVIKUMAR, AGED ABOUT 42 YEARS, RESIDING AT GUDIMAVU VILLAGE, KUMBALGODU POST-560087.
BENGALURU SOUTH TALUK.
4. SRI.R.RADHAKRISHNA S/O SRI G.RAMAIAH, AGED ABOUT 39 YEARS, RESIDING AT NO.121, RAMAKRISHNA BLOCK, 1ST MAIN ROAD, THYAGARAJANAGAR, BENGALURU-560028.
... PETITIONERS (BY SRI M. PRAKASH, ADVOCATE FOR SRI NAIK N. R., ADVOCATE) AND:
1. SRI. RAMAIAH, S/O LATE LAKSHMAIAH, AGED ABOUT 75 YEARS, RESIDING AT NO.121, RAMAKRISHNA BLOCK, 1ST MAIN ROAD, THYAGARAJANAGAR, BENGALURU-560 028.
2. SMT.SARASWATHAMMA W/O SRI.SHESHAPPA, AGED ABOUT 68 YEARS, RESIDING AT GUDIMAVI VILLAGE, KUMBALGODU POST, BENGALURU SOUTH TALUK, BENGALURU DISTRICT-560087.
3. SMT.PREMAMMA W/O LATE GOVINDAIAH @ GOVINDARAJU, AGED ABOUT 58 YEARS, 4. SRI SATISH S/O LATE GOVINDAIAH @ GOVINDARAJU, AGED ABOUT 38 YEARS, 5. SRI.L.SRINIVASAIAH, S/O LATE LAKSHMAIAH, AGED ABOUT 66 YEARS, 6. SMT.BHGYAMMA W/O SRI.L.SRINIVASAIAH, AGED ABOUT 57 YEARS, RESPONDENT No.3 TO 6 ARE RESIDING AT GULAKAMANE VILLAGE, THARALU POST, UTTARAHALLI HOBLI, BENGALURU SOUTH TALUK, BENGALURU-560 082.
7. SMT.SHANTHAMMA, W/O LATE ARCHAK SEENAPPA, AGED ABOUT 59 YEARS, RESIDING AT KUMBALAGODU VILLAGE, BENGALURU SOUTH TALUK, BENGALURU DISTRICT-560087.
SRI CHANDRA REDDY S/O LATE T.M.SUBBA REDDY, SINCE DEAD BY HIS LRS 8. SMT.PUSHPA W/O LATE CHANDRA REDDY, AGED ABOUT 50 YEARS, 9. SRI.BHARATH S/O LATE CHANDRA REDDY, AGED ABOUT 25 YEARS, 10. SRI.YOGESH S/O LATE CHANDRA REDDY, AGED ABOUT 23 YEARS, RESPONDENT No.8 TO 10 ARE RESIDING AT THARALU VILLAGE & POST, UTTARAHALLI HOBLI, BENGALURU SOUTH TALUK, BENGALURU-560 082.
11. SRI.VENKATESH MURTHY R.V. S/O SRI.RAMAIAH, AGED ABOUT YEARS, RESIDING AT NO.121, RAMAKRISHNA BLOCK, 1ST MAIN ROAD, THYAGARAJANAGARA, BENGALURU-560 028.
... RESPONDENTS (BY SRI K. SRINIVASA, ADVOCATE FOR R5 & R6; SRI B.M. BALIGA, ADVOCATE FOR R9 STO R11) …… THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET-ASIDE THE ORDER PASSED IN M.A. NO. 22/2015 DATED 31/7/2018 BY THE 9TH ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, PRODUCED AT ANNEXURE-G.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The unsuccessful plaintiffs filed the present writ petition against the order dated 31.07.2018 made in M.A.No.22/2015 dismissing the appeal, confirming the order passed by the Trial Court, rejecting the application for temporary injunction.
2. The petitioners herein filed a suit for partition and separate possession and to declare that the sale deed dated 23.10.1986 executed by the defendant No.1 in favour of the defendant No.5 and the gift deed dated 27.05.1999, sale deed dated 15.07.1983 in respect of suit ‘B’ schedule property and also the revenue entries in favour of defendant Nos.5, 6 and 8 are not binding on the legitimate share of the plaintiffs and for permanent injunction restraining the defendant Nos.5, 6 and 8, from alienating, transferring and encumbering the suit schedule property, contending that the suit schedule property is the joint family property of the plaintiffs and defendants.
3. The defendants filed written statement, denied the plaint averments and contended that the suit filed for partition is not maintainable since the plaintiffs have suppressed the material facts and not come to the Court with clean hands. It is further contended that the suit schedule properties are not divided in the joint family and also entitled to legitimate share in the properties. The defendant Nos.1, 2 and 7 also sought for partition. The other defendants filed written statement, denied the plaint averments and sought for dismissal of the suit.
4. During pendency of the suit, plaintiffs filed I.A.No.
2 under Order XXXIX Rule 1 and 2 of Code of Civil Procedure to restrain the defendant Nos.5, 6 and 8 from alienating the suit schedule properties in favour of third parties, reiterating the plaint averments. The defendants filed objections.
5. The Trial Court, considering the application and objections, by the Order dated 25.03.2015 dismissed the application on the ground that the plaintiffs have not made out any prima facie case for grant of temporary injunction and balance of convenience does not lie in favour of the plaintiffs. The Trial Court also vacated the ex-parte temporary injunction granted on 31.12.2013. The said order was challenged in M.A. No.22/2015. The lower appellate Court, after reconsidering the entire material on record, by the impugned Order dated 31.07.2018, dismissed the appeal, confirming the order passed by the Trial Court. Hence, the present writ petition is filed.
6. I have heard the learned counsel for the parties to the lis.
7. Sri Prakash, learned counsel appearing on behalf of Sri N.R.Naik, learned counsel for the petitioners/ plaintiffs, contended that the impugned Orders passed by the Courts below are erroneous and contrary to the material on record. He contended that the suit is filed by the plaintiffs for the relief of partition and separate possession. If any alienation is made, the very purpose of filing the suit will be frustrated and both the Courts below failed to notice the said fact. Without considering the fact that the plaintiffs and defendants are in joint possession of undivided properties, the Court below proceeded to dismiss the application. Therefore, he sought allow the writ petition.
8. Per contra, Sri B.M.Baliga, learned counsel for respondent Nos.9 to 11 and Sri Srinivasa, learned counsel for respondent Nos.5 and 6 sought to justify the impugned Orders and contended that the plaintiffs have not come to the Court with clean hands and have suppressed the material facts. The Courts below are justified dismissing the application and therefore, sought to dismiss the writ petition.
9. Having heard the learned counsel for the parties, it is not in dispute that the plaintiffs filed suit for partition and separate possession. The same was denied by the defendants by filing objections. On the application filed by the plaintiffs for temporary injunction, the Trial Court recorded a finding that, ‘by virtue of the compromise, the defendant No.1 had consented to execute re-conveyance deed in favour of the second plaintiff. Hence, the second plaintiff has become owner of the suit schedule ‘A’ property. By virtue of the compromise, the first defendant had lost right over the property and the said compromise was entered on 03.12.1984. Since the first defendant had lost his right, the plaintiffs are not entitled for any right over the suit schedule ‘A’ property. Further, the first defendant had relinquished his right over ‘A’ schedule property’. It is further observed that, ‘the present suit is filed to attach the defendant Nos.5 and 6 one way or the other. Hence, it appears that the plaintiffs had suppressed the material fact that took place with regard to the suit property. Hence the plaintiffs have not approached the Court with clean hands’. Accordingly, dismissed the application for temporary injunction.
10. On re-appreciation of the material facts, the lower appellate Court, concurred with the findings of the trial Court and dismissed the appeal.
11. Both the Courts below concurrently held that the plaintiffs have not proved prima facie case to grant temporary injunction and plaintiffs have suppressed the material facts and have not come to the Court with clean hands. The plaintiffs have not whispered anything about previous cases referred to by the Trial Court. Accordingly, both the Courts below have dismissed the application.
12. The concurrent findings of the Courts below is based on the oral and documentary material available on record. The same cannot be interfered in exercise of powers under Article 227 of the Constitution of India. Accordingly, writ petition is dismissed.
13. However, it is open for the plaintiffs to establish their right, based on the oral and documentary evidence to be adduced and produced before the Trial Court, in accordance with law.
Sd/- JUDGE kcm