IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 04th DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE PRADEEP SINGH YERUR M.F. A. NO.1994 OF 2016 (CPC) BETWEEN:
1. SRI C.P. MADURAIAH S/O. LATE POOJARI CHAMI AGED ABOUT 64 YEARS BEHIND MANJUNATHA FLOUR MILL WARD NO.11, GOWLI STREET MADIKERI, KODAGU – 571 201 2. SRI P.C. SATHYANARAYANA S/O. LATE POOJARI CHAMI AGED ABOUT 51 YEARS MAKERI VILLAGE, KODAGU POST MADIKERI TALUK KODAGU DISTRICT – 571 201 3. SRI P.C. SUBRAMANYA S/O. LATE POOJARI CHAMI AGED ABOUT 45 YEARS NEAR J.P. NAGAR POLICE STATION 16TH CROSS, MANANDAVADI ROAD MYSURU – 570 008 (BY SRI SHRIKARA P.K., ADVOCATE) AND:
1. SRI P.C. KRISHNA S/O. LATE POOJARI CHAMI AGED ABOUT 59 YEARS …APPELLANTS R/AT V.S.S.N. QUARTERS POLYBETTA, VIRAJPET TALUK KODAGU DISTRICT 2. SRI P.C. UMESH S/O. LATE POOJARI CHAMI AGED ABOUT 49 YEARS KARNATAKA STATE RESERVE POLICE JOCKY QUARTERS, CHAMUNDI HILL ROAD NAZARABAD MOHALL, MYSURU – 570 001 3. KUMARI P.C. SAVITHRI D/O. LATE POOJARI CHAMI AGED ABOUT 53 YEARS 4. SRI K.M. MADHU @ SHRIJU W/O. MOHAN M.P.
AGED ABOUT 25 YEARS RESPONDNT NOS. 3 & 4 ARE RESIDING AT DOOR NO.13/27 (1) GOWLI STREET, MADIKERI KODAGU DISTRICT – 571 201 5. SMT. RANI, W/O. M. BABU AGED ABOUT 28 YEARS PADIKUTTIYA HOUSE PUDUPANAM POST,VADAGARA KERALA STATE – 673 105 6. SRI MOHAN M.P.
S/O. LATE SMT. BANGARAMMA AGED ABOUT 63 YEARS R/AT PADIKUTIYA HOUSE PUDUPANAM POST,VADAGARA KERALA STATE – 673 105.
...RESPONDENTS (BY SRI SOMASHEKARA K.M., FOR SRI C.R.GOPALASWAMY, ADVOCATES) *** THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER XLIII RULE 1 (R) OF CODE OF CIVIL PROCEDURE, 1908 PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 14.12.2015 PASSED IN O.S.NO.87/2015 (ANNEXURE-A) BY THE HON’BLE SENIOR CIVIL JUDGE AND CJM AT MADIKERI, KODAGU AND CONSEQUENTLY ALLOW THE IA NO.1 FILED UNDER ORDER 39 RULE 1 & 2 OF CPC (ANNEXURE-C) BY THE APPELLANTS.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT, DELIVERED THE FOLLOWING:
JUDGMENT Heard the learned counsel for appellants and the respondents.
2. This appeal is filed by the plaintiffs challenging the order passed by the learned Senior Civil Judge, Madikeri, dismissing the application filed by the appellants under Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908.
3. The appellants have filed a suit for partition and separate possession with regard to the A & B suit schedule properties. During the pendency of the suit, the appellants have filed IA No.1 under the provisions of Order 39 Rules 1 & 2 of CPC, praying to restrain the respondents, their agents, henchmen, representatives, family members or any other persons claiming under them from alienating the A & B suit schedule properties in any manner till the disposal of the suit. The respondents filed their objections to the suit and also made a counter claim seeking relief of declaration that the respondents are the absolute owners of the A & B schedule properties. The respondents have also sought for a declaration over the ‘C’ schedule property as absolute owners through counter claim.
4. It is the case of the appellants that the suit schedule properties are the joint family properties and that the first respondent purchased the B schedule property out of the joint family income and hence appellants are having right over the suit A and B schedule properties.
5. It is the case of the respondents that the first respondent purchased the B schedule property out of his own income. He states that first respondent after obtaining the degree of BA and then General Diploma in Co-operation and joined service as a Secretary in Common Cadre Authority under the Kodagu Zilla Sahakara Kendriya Bank. Thereafter, he was transferred to VSSN Bank, Maragodu, where he served till 28.04.1988 and then he was transferred to VSSN Bank, Polibetta, where he was working as a Chief Executive Officer till date. It is the case of the first respondent that his wife is a registered LIC Agent since 1993. It is also the case of the first respondent that the B schedule property was purchased after 16 years of service in Banking sector and out of the money saving made by his wife along with some hand loan obtained by him.
6. There is no dispute with regard to the relationship between the parties, but the first respondent seriously objects to the joint nature and joint family status of the A & B schedule properties. It is the case of the respondents that A schedule property was partitioned in the year 1966 and the appellants were allotted individual shares. Since the appellants were interfering with the respondents, the respondents have filed a suit for declaration and injunction before the learned Senior Civil Judge, Madikeri in OS No. 122/2014 and in the said suit an interim order of status-quo was granted. It is submitted by the learned counsel for respondents that the said order of status-quo was challenged by the appellants herein before this Court and the same came to be dismissed. It is the contention of the learned counsel for respondents that as a counter blast, the appellants have initiated this suit for partition and separate possession pursuant to the suit filed by the respondents. It is the case of the respondents that they have purchased the suit B schedule property by virtue of registered sale deed in the year 1998 and it is his self acquired property. Per contra, the learned counsel for appellants submits that the A & B schedule properties are joint family properties and that B schedule property has been purchased by the first respondent out of nucleus of the joint family properties.
7. I have given my anxious consideration to the submissions of the learned counsel for appellants and the respondents and perused the materials produced before this Court.
8. Three important aspects to decide an application filed under Order 39 Rules 1 and 2 of CPC have been set forth by the learned Senior Civil Judge as points for consideration and the same are as follows:
“(1) Whether the plaintiffs have proved the prima facie case?
(2) Whether the balance of convenience lies in her favour of the plaintiffs?
(3) Whether irreparable loss will be cause to the plaintiffs if IA is rejected?”
9 The appellants have ventured into filing of the partition suit pursuant to the suit for declaration and for injunction filed by the respondents, in which the respondents had obtained an order of status-quo. The appellants challenged the said order of status-quo before this Court and the same came to be dismissed. The appellants have filed a suit pursuant to the order of status- quo, in which they were unable to succeed overturning the said order of status-quo. On perusal of the case file and the submission of the learned counsel, it is noticed that the first respondent has invested huge amount in the lands and he has also borrowed loan by creating charge over the B schedule property. At this stage, it may not be appropriate to discuss and opine with regard to the suit schedule properties being joint family or self acquired properties. Suffice it to say that, prima facie, on the material produced before the Court it appears that the first respondent has purchased B Schedule property by virtue of a registered sale deed in the year 1998. Therefore, by virtue of registered sale deed in his favour there was a prima facie case made out by the respondents. It is submitted by the learned counsel for respondents that he will not alienate or encumber A schedule properties. It is for the appellant to prove that the A & B schedule properties are purchased out of the joint family nucleus and funds and it is for the respondents to prove the fact that he had purchased B schedule property out of his own self earned income and without any assistance from the joint family nucleus or funds.
10. Therefore, I do not find any ground to interfere with the orders passed by the learned Senior Civil Judge, Madikeri. Accordingly, the appeal is dismissed.
It is needless to mention that no opinion is expressed with regard to the source of purchase and the status of the property by this Court, and the statement of the learned counsel for respondents across the Bar that he has not created any charge or alienation of the B schedule property is taken on record. The appellants are at liberty to take necessary action, if anything to the contrary.
Sd/- JUDGE VK