IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 01ST DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE ASHOK G.NIJAGANNAVAR M.F.A. NO.11409 OF 2012 (CPC) BETWEEN:
SRI M CHANDRASHEKAR S/O M PULLAMA RAJU AGED ABOUT 46 YEARS R/AT NO. 1350, A BLOCK SAHAKARA NAGAR BANGALORE-560092 ... APPELLANT (BY SRI K.K.VASANTH, ADVOCATE) AND:
1. SMT RATHNAMMA W/O SRI K GOPAL AGED ABOUT 46 YEARS R/AT NO. 178, KARIAYANAPALYA HENNUR MAIN ROAD BEHIND GANGAMMA TEMPLE ST THOMAS TOWN POST BANGALORE-560084 2. SMT KRISHNAMMA D/O SRI MUNISWAMAPPA AND W/O SRI PILLAPPA AGED ABOUT 55 YEARS R/AT NO.70, KACHARAKANAHALLI ST THOMAS TOWN POST BANGALORE-560084 3. SRI VENKATESH S/O SRI MUNISWAMAPPA AGED ABOUT 53 YEARS R/O HUTHANAHALLI JALA HOBLI BANGALORE NORTH TALUK 4. SRI GOVINDARAJU S/O SRI MUNISWAMAPPA AGED ABOUT 44 YEARS R/O HUTHANAHALLI JALA HOBLI-560 064 BANGALORE NORTH TALUK SRI MUNISWAMAPPA SINCE DECEASED AND HIS LRS ARE RESPONDENT NOS. 1 TO 4 HEREIN ... RESPONDENTS MFA FILED U/O. 43 RULE 1(r) OF CPC AGAINST THE ORDER DT. 5.11.2012 PASSED ON I.A.NO.I IN O.S.NO. 100/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, DEVANAHALLI, ALLOWING I.A.NO.I FILED U/O. 39 RULE 1 AND 2 OF CPC FOR T.I.
This MFA coming on for hearing this day, the Court delivered the following:
JUDGMENT This Appeal is filed for setting aside the impugned order dated 05.11.2012 on IA No.1/2012 in O.S.No. 100/2008 passed by the Senior Civil Judge and JMFC, Devanahalli.
2. The facts briefly stated are that; the respondent Nos.1 and 2 who are the plaintiffs No.1 and 2 had filed suit in O.S.No.100/2008 claiming 1/5th share each in the property bearing survey No.74 of Huthanahalli measuring 2 acres 10 guntas. The appellant was arrayed as defendant No.4 before the trial Court in the said suit. Defendant Nos.1, 2 and 3 were joint family members. The original suit No.100/2008 was filed on 28.01.2008. But initially no interim orders were passed against the defendants including the appellant who is defendant No.4. Thereafter, the interim application under Order 39 Rule 1 and 2 of CPC was heard and the order was passed on 05.11.2012. But the appellant/defendant No.4 had sold the suit schedule property bearing survey No.74 of Huthanahalli to Telecom Employees Co-operative Housing Society, through the registered sale deed dated 07.01.2010. As on the date of passing of interim orders the appellant had lost the right title and interest whatsoever in the said suit schedule property and the Telecom Employees Co-operative Housing Society acquired the right title over the suit schedule property.
3. The Court below while considering the IA Nos.1/2018 and 5/2018 filed under Order 39 Rule 1 and 2 of the CPC, has observed in para 15 of the Order as under:
“The defendant No.4 contends that he has already sold the suit schedule property in favour of Telecom Employees Co-operative Housing Society under a registered sale deed dated 17.01.2009, but no documents have been furnished as on today Any how the alienation if any is made by the defendant No.4 in favour of the Telecom Employees Co- operative Housing Society during pendency of the suit.”
4. With this reasoning the Court has come to the conclusion that the defendant No.4, his agents, servants are to be restrained by order of temporary injunction by alienating the suit schedule property. Since the suit schedule property is already sold by the defendant No.4, the impugned order passed by the trial court is not binding on defendant No.4.
5. The learned counsel for the appellant contended that the trial court has failed to consider the alienation made by the defendant No.4/appellant in favour of the Telecom Employees Co-operative Housing Society. Thereby, the trial court has erred in passing the impugned order.
6. Despite service of notice the respondents have not appeared and they are unrepresented. As such this court has no opportunity to hear the arguments of the respondents.
7. As could be seen from the impugned order in Para 15, the trial court has observed that the defendant No.4 has already sold the suit schedule property to the Telecom Employees Co-operative Housing Society through the registered sale deed 17.01.2009. But the documents produced by the learned counsel for the appellant discloses that the property was sold through sale deed dated 07.01.2010 and not on 17.01.2009 as mentioned in the impugned order. It is pertinent to note that as on the date of the sale of the suit schedule property there was no interim order prohibiting defendant No.4 or his agents, and representatives from alienating the suit schedule property as contended by the learned counsel for the appellant, but Section 52 of Transfer of Property Act, ‘Lis Pendens’ will be applicable if the alienation is during pendency of the suit.
8. It is submitted that the purchaser of the suit schedule property from defendant No.4 namely Telecom Employees Co-operative Housing Society has filed an application to get impleaded as defendant. Thus it is evident that as on the date of passing the order on 05.11.2012 the defendant No.4 has lost title interest in the suit schedule property.
9. While hearing the applications on IA Nos.1/2018 and 5/2018 submissions are made before the trial court regarding alienation made by defendant No.4. Despite making said observation about alienation, interim orders passed by the trial court, restraining defendant No.4 or any other defendants from alienating the property. The trial Judge has also made observations regarding the alienation during pendency of the suit. When the defendant No.4 is not the owner of the property as on the date of passing interim orders, the grant of injunction restraining him from alienating the suit property is not at all justified.
10. For the forgoing reasons, there are valid grounds to set aside the impugned order. Accordingly the appeal is allowed. The impugned order dated 05.11.2012 passed in O.S.No.100/2008 restraining defendant No.4 from alienating the suit property is set aside.
Sd/- JUDGE HB*