1 M IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF NOVEMBER 2019 BEFORE THE HON’BLE MRS. JUSTICE K.S.MUDAGAL MISCELLANEOUS FIRST APPEAL NO.8459/2011 BETWEEN:
SRI RAJESH KUMAR AGARWAL AGED ABOUT 41 YEARS S/O SRI PREM CHAND AGARWAL NO.350, 14TH ‘B’ CROSS, 5TH MAIN 6TH SECTOR, HSR LAYOUT BENGALURU – 560 102 … APPELLANT (BY SRI N.JAGADEESH, ADVOCATE) AND:
1. SRI PREM CHAND AGARWAL SINCE DEAD BY HIS LRS.
1(a). SMT.SUMAN HISSARIA AGED ABOUT 52 YEARS D/O LATE PREM CHAND AGARWAL W/O SRI SUSHIL HISSARIA R/AT NO.392, DURGA BHAVAN 6TH FLOOR, KORMANGALA BENGALURU – 560 095 2. SRI KRISHAN AGARWAL AGED ABOUT 50 YEARS S/O PREM CHAND AGARWAL R/AT NO.263, 16TH CROSS 5TH MAIN, 6TH SECTOR HSR LAYOUT BENGALURU – 560 102 3. SRI GAJENDER AGARWAL AGED ABOUT 46 YEARS S/O PREM CHAND AGARWAL R/AT NO.29, 5TH CROSS 2 M 8TH MAIN, JAKKASANDRA BLOCK KORMANGALA BENGALURU – 560 034 4. SRI ANANTHA KUMAR SINCE DEAD BY HIS LRS.
4(a). SMT.SUMITRA DEVI AGED ABOUT 60 YEARS W/O LATE K.S.M.RAJU 4(b). SMT.SAVITHA AGED ABOUT 40 YEARS W/O LATE K.M.ANANTH KUMAR 4(c). KUM.SMRUTHI MYTHREYA ANANTH MINOR, AGED ABOUT 09 YEARS D/O LATE K.M.ANANTH KUMAR 4(d). KUM.SUNIDHI MYTHREYA ANANTH MINOR, AGED ABOUT 07 YEARS D/O LATE K.M.ANANTH KUMAR 4(c) AND 4(d) ARE MINORS REPRESENTED BY THEIR MOTHER AND NATURAL GUARDIAN SMT.SAVITHA ALL ARE R/AT 47/A AKSHYA NANJUNDESHWARA LAYOUT J.P.NAGAR, 5TH PHASE BENGALURU – 560 078 … RESPONDENTS (BY SRI BALASUBRAMANYA B.N., ADVOCATE FOR M/S M.T.NANAIAH AND ASSOCIATES FOR R1 TO R3; SRI M.G.NANJAPPA, ADVOCATE FOR M/S TATVA LEGAL FOR R4; R1(a), R4(a), R4(b) ARE SERVED;
R4(c) AND R4(d) ARE MINOR – SERVED) THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 03.09.2011 PASSED ON IA No.1 IN OS.NO.1091/2010 ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT-II, BANGALORE RURAL DISTRICT, BANGALORE, DISMISSING IA NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 OF CPC FOR TEMPORARY INJUNCTION.
3 M THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal of the plaintiff arises out of the order dated 03.09.2011 in O.S.No.1091/2010 passed by the Presiding Officer, Fast Track Court-II, Bangalore Rural District, Bangalore.
2. By the impugned order, the trial court has dismissed the application of the appellant against the defendants for temporary injunction against alienation of the suit schedule property, changing the nature of the property and interfering with his peaceful possession.
3. Respondent No.1 is the father and respondent Nos.2 and 3 are the siblings of the appellant. Respondent No.4 is the purchaser of the suit schedule properties. The subject matter of the suit were the lands bearing Nos.15/P1 measuring 10 guntas, Sy.No.15/1 measuring 20 guntas, 4 M Sy.No.15/2 measuring 20 guntas and Sy.No.15/4 measuring 10 guntas situated at Bhattarahalli village, Bidarahalli Hobli, Bangalore East Taluk.
4. The appellant filed O.S.No.1091/2010 before the trial court against the respondents contending that the suit schedule properties were the joint family properties of himself and respondent Nos.1 to 3. He further contended that respondent Nos.1 to 3 in a family settlement dated 28.03.2009 agreed to give him 50% share in the suit schedule properties, but they started to act detrimental to his interest and tried to alienate the properties to defendant No.4. Therefore, he sought decree for partition and possession of 50% share in the suit schedule properties and for permanent injunction, etc. In the said suit, he filed I.A.No.1 claiming temporary injunction as aforesaid.
5. The defendants contested the suit and the application on the following grounds:
5 M That there was already a partition in the family properties under the settlement deed dated 28.03.2009 and plaintiff has been given his share. The suit schedule properties were allotted to the share of first defendant and he has entered into agreement of sale with defendant No.4 on 25.08.2010. The plaintiff filed O.S.No.947/2010 for permanent injunction and when he could not get an interim order in the said case, suppressing the said fact he filed this second suit.
6. The trial court after hearing the parties by the impugned order rejected the application on the following grounds:
(i) In one application, multiple reliefs are claimed and therefore, the application has to be considered for only one relief of injunction amongst the three sought;
6 M (ii) Plaintiff in his pleading itself has admitted about the settlement deed dated 28.03.2009, thus, prima facie there was already a partition;
(iii) Plaintiff has suppressed the fact of filing of earlier suit in O.S.No.947/2010;
(iv) Plaintiff has failed to make out prima facie case of his right.
7. In an appeal against the order passed under Order XXXIX Rule 1 and 2 CPC, which is a discretionary relief, this Court can interfere only if it is shown that the order suffers arbitrariness or perversity.
8. To entitle himself for grant of temporary injunction, the plaintiff/appellant is required to satisfy his prima facie right and injury to such right and that the balance of convenience is in his favour.
9. So far as the prima facie case of right, the plaintiff himself stated in the plaint that there was a 7 M family settlement on 28.03.2009, but according to him, that settlement was not respected. He says that 50% share in the suit schedule properties was allotted to him. But there was nothing to substantiate the said contention. As against that, defendants relied on the settlement deed dated 28.03.2009 producing the copy of the same.
10. One more significant aspect to be noted is that the very say of the plaintiff that 50% share in the suit schedule properties were allotted to him indicates that there were other family properties and there is no dispute about that. The said other properties were not included in the suit. It is settled principle of law that suit for partial partition is not maintainable. Prima facie case includes the prima facie maintainability of the suit also.
11. Further, though the plaintiff referred to O.S.No.947/2010 in his plaint, he did not state what was that suit and what prevented him from seeking 8 M comprehensive relief of partition in the said suit. The pendency of the said suit was also not revealed. The relief of injunction being discretionary relief, that can be extended to him if he shows fairness.
12. The trial court considering the plaintiff’s own statement in his plaint regarding settlement dated 28.03.2009 and referring to O.S.No.947/2010 held that he has failed to make out a prima facie case of his right and rejected the application. This court does not find any arbitrariness or perversity in the impugned order. Therefore, the appeal is dismissed.
In view of disposal of the appeal, I.A.No.1/2011 stood disposed of.
Sd/- JUDGE KNM/-