IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF NOVEMBER 2019 BEFORE THE HON’BLE MRS JUSTICE K.S.MUDAGAL MISCELLANEOUS FIRST APPEAL NO.6095/2019 (CPC) BETWEEN:
1. SMT.SHANTHA KUMARI D/O LATE MUNIYAPPA AGED ABOUT 50 YEARS W/O SRI GOPAL GOWDA R/O NALLAPPANAHALLI VILLAGE CHENNARAYAPATNA HOBLI DEVANAHALLI TALUK BANGALORE RURAL DISTRICT 2. SRI SATISH S/O LATE MUNIYAPPA AGED ABOUT 44 YEARS R/AT 19/2, LBS NAGAR K.NAARAYANAPURA DR. S.R.K. NAGAR POST BANGALORE – 560 077 … APPELLANTS (BY SRI KESHAVA BHAT A., ADV.) AND:
1. PILLAMMA AGED ABOUT 69 YEARS W/O LATE R.MUNIYAPPA R/AT NO.19/2, LBS NAGAR K.NAARAYANAPURA DR.S.R.K.NAGAR POST BANGALORE – 560 077 2. SRI ASHOK KUMAR AGED ABOUT 48 YEARS S/O LATE R.MUNIYAPPA R/AT NO.19/2, LBS NAGAR K.NAARAYANAPURA DR.S.R.K.NAGAR POST BANGALORE – 560 077 3. SRI N.T.SAGAR AGED ABOUT 62 YEARS S/O SRI SADANANDA R/AT NO.77, 3RD CROSS NANDIDURGA EXTENSION NEAR JANTHA BAZAR BANGALORE – 560 046 4. SRI K.LOKESH S/O LATE KRISHNAPPA AGED ABOUT 46 YEARS R/AT NAGESHWARA NAGENAHALLI VILLAGE KRISHNARAJAPURAM HOBLI BANGALORE EAST TALUK … RESPONDENTS (BY SRI VIJAYA KUMAR K, ADV. FOR C/R4; R1-R3 ARE SERVED) THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 25.05.2019 PASSED ON I.A.NO.VIII IN O.S.NO.6333/2015 ON THE FILE OF THE XLV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY (CCH-46), DISMISSING I.A.NO.VIII FILED UNDER ORDER 39 RULE 1 AND 2 READ WITH SECTION 151 OF CPC.
THIS MFA COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T Though this matter is listed for orders on I.A.No.2/2019, with the consent of both parties, the appeal is taken up for final disposal.
2. The appellants and respondent No.2 are the children of respondent No.1 and late R.Muniyappa. The appellants filed O.S.No.6333/2015 before the XLV Additional City Civil and Sessions Judge, Bengaluru City (CCH-46) against the respondents claiming that the suit schedule property was their ancestral property and they are entitled to 1/4th share in the same. They further claimed that respondent No.1 without their knowledge and consent through respondent No.3 the alleged Power of Attorney Holder has sold the suit property to respondent No.4 under the registered sale deed dated 20.08.2014 and the said sale does not bind them.
3. The subject matter of the suit was land bearing Sy.No.12/1 measuring 9 guntas situated at K.Narayanapura village, K.R.Puram Hobli, Bangalore East Taluk.
4. The plaintiffs filed I.A.No.8 in the suit seeking temporary injunction against the defendants against putting up construction over the suit schedule property. The trial court by the impugned order dated 25.5.2019 rejected the said application holding that the plaintiffs have not made out prima facie case of their right and possession and that balance of convenience lies in favour of respondent No.4. Aggrieved by the said order, the above appeal is filed by the plaintiffs.
5. The plaintiffs’ title to the property was traced through one M.Ramaiah. R.Muniyappa, the husband of respondent No.1 and father of appellants and respondent No.2, Lakshmaiah, Papanna, Rajanna, Gopal and Puttaraju, the sons of Ramaiah admittedly partitioned the properties on 16.09.2001. Since by that time Muniyappa had died, his share was allotted to respondent No.1 Pillamma.
6. Along with the subject matter of this case, she was allotted four other properties also. Pillamma and her brothers-in-law, who were the other co-sharers under the partition deed, have together executed the registered sale deed through the third respondent as their Power of Attorney Holder for a consideration of `1,30,00,000/-. The document indicates that the possession of the property is handed over to the purchasers.
7. Now the appellants have come before the court seeking partition only in respect of the property sold to respondent No.4. While granting injunction, prima facie case of the applicant’s right, injury to such right and balance of convenience, have to be considered. Prima facie case involves the maintainability of the suit also. Though several properties were allotted to Pillamma – respondent No.1, suit is brought for partition choosing only the property sold to respondent No.4.
8. It is the settled principle of law that suit for partial partition is not maintainable. Therefore, prima facie suit was not maintainable. Thus the prima facie case of right was not satisfied. As already pointed out, the fourth respondent has purchased the property paying huge consideration and developed that. As per the records, the construction was substantially put up. Under the circumstances, balance of convenience lies in favour of the fourth respondent.
9. If at all the plaintiffs succeed, their share will be only 1/5th each. Since the suit is not brought for partition in respect of the other properties, there is an opportunity to adjust share in other properties also. Therefore, there is no merit in the appeal.
Appeal is dismissed. In view of the disposal of the appeal, I.A.No.2/2019 does not survive for consideration and disposed of accordingly.
The trial court shall dispose of the suit as expeditiously as possible uninfluenced by any of the observations made in this case.
Sd/- JUDGE KNM/-