IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MARCH, 2017 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR W.P.Nos.3350-3351/2017 (GM-CPC) BETWEEN:
1. SRI RAKESH S/O SUBBANNA AGED ABOUT 22 YEARS 2. KUMARI RAKSHITHA D/O SUBBANNA AGED ABOUT 20 YEARS BOTH ARE R/AT KOPPA VILLAGE, JIGANI HOBLI ANEKAL TALUK BANGALORE DISTRICT-562 106.
... PETITIONERS (BY SRI. BOPANNA B, ADVOCATE) AND:
1. SRI SUBBANNA S/O H.C. NYATHAPPA AGED ABOUT 53 YEARS R/AT HARAGADDE VILLAGE JIGANI HOBLI ANEKAL TALUK BANGALORE DISTRICT-562 106.
2. SRI K.S. VENKATAREDDY S/O UPPARA REDDY AGED ABOUT 52 YEARS R/AT NO. 8/216 BEHIND ANDHRA BANK RAVULAPELAM EAST GODAVARI DISTRICT ANDHRAPRADESH PIN-523 238.
3. SRI. S. BHUPAL REDDY S/O MANIKYA REDDY AGED ABOUT 50 YEARS R/AT NO.676, 1ST FLOOR 9TH MAIN, 7TH SECTOR H..S.R. LAYOUT BANGALORE-560 102.
4. SRI PURUSHOTHAM DAS MANDHANA S/O LATE M. GOVINDALA MANDHANA, AGED ABOUT 61 YEARS R/AT NO.7-1-214/1/A DHARAM KARNA ROAD AMEERPET, HYDERABAD ANDHRA PRADESH PIN CODE-500 001.
... RESPONDENTS (BY SRI. G.R. ANANTHARAM, ADVOCATE FOR R3 & R4) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE COMMON JUDGMENT DATED 17.1.2017 PASSED ON APPEAL IN MA NO.5004/2016 AND MA NO.5005/2016 AT ANNEXURE-J BY THE III ADDL. DISTRICT AND SESSION JUDGE, ANEKAL AND CONSEQUENTLY GRANT TEMPORARY INJUNCTION RESTRAINING THE RESPONDENTS FROM CHANGING THE NATURE OF THE SUIT SCHEDULE ITEM NO.1 & 2 PROPERITES BY WAY OF PUT UP CONSTUCTION AND FROM ALIENATING THE SUIT SCHEDULE ITEM NO.1 & 2 PROPERTIES BY ALLOWING THE APPLICATION I.A.NO.6 AND 7 FILED BY THE PETITIONERS IN O.S.NO.922/2013 CONFIRMING THE ORDER PASSED BY THE TRIAL COURT ON I.A.NO.6 AND 7 IN O.S.NO.922/2013.
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioners are plaintiffs in O.S.No.922/2013 and they have filed the said suit for partition and separate possession of item Nos.1 to 3 in respect of suit properties contending interalia that it is a joint family property and their father / first defendant had acquired said properties under a partition entered between first defendant and his brothers on 23.02.2006 and he had alienated said properties unilaterally to the detrimental interest of plaintiffs under a sale deed 18.03.2008 in favour of second defendant. Hence, seeking partition and separate possession suit in question came to be filed.
2. Second defendant appeared, filed written statement and denied the averments made in the plaint.
3. During the pendency of the suit an application came to be filed by plaintiffs under Order XXXIX Rule 1 and 2 CPC to restrain the defendants from changing the nature of properties and/or alienating or encumbering item Nos.1 and 2 of suit schedule properties. At this juncture itself it would be appropriate to notice that during the pendency of said suit, second defendant is said to have sold the suit properties in favour of third defendant under a sale deed dated 18.02.2015 and as such, third defendant was also impleaded and temporary injunction was sought for against him also. Said application was resisted to by defendant Nos.3 and 4 by filing detailed written statement and reiterating the grounds urged in the written statement.
4. Trial Court after considering rival contentions by order dated 24.11.2015 allowed the applications I.A.Nos.6 and 7 filed by plaintiffs and restrained defendant Nos.3 and 4 from changing the nature of properties by way of putting up a construction and also restrained them from by creating charge over item Nos.1 and 2 of suit schedule properties in favour of third parties until further orders.
5. Being aggrieved by said order, defendant Nos.3 and 4 filed appeals in M.A.Nos.5004/2016 and 5005/2016 before the District Judge, Bangalore Rural, Bangalore. Lower Appellate Court on re-appreciation of facts and taking into consideration three essential ingredients required to be considered for grant of temporary injunction namely, prima facie case, balance of convenience and irreparable loss and injury found that none of these ingredients are present in favour of plaintiffs and as such, vacated the temporary injunction granted by trial Court and dismissed the applications filed by the plaintiffs. Hence, plaintiffs are before this Court assailing the order dated 17.01.2017 passed by District Judge in appeals referred to above.
6. It is the contention of Mr.B.Bopanna, learned counsel appearing for petitioners that trial Court having examined the documents produced by plaintiffs had formed an opinion that suit properties originally belonged to joint family of plaintiffs and first defendant and also found that in the event of defendant Nos.3 and 4 were to change the nature of properties or create encumbrance in favour of third parties, it would prejudice the case of plaintiffs and as such had granted an order of temporary injunction, which ought not to have been interfered by the Appellate Court and he would also contend that if the interim order as granted by the trial Court is continued it would protect the interest of plaintiffs, as otherwise in the event of plaintiffs succeeding in the suit, their very right would get defeated and third parties right would step in and as such, to avoid multiplicity of litigations he seeks for setting aside the order of District Judge and prays for restoration of the order passed by trial Court granting temporary injunction.
7. Per contra, Sri.G.R.Anantharam, learned counsel appearing for respondent Nos.3 and 4 who had preferred the appeals before learned District Judge against the order of temporary injunction granted by trial Court would support the order passed by the Lower Appellate Court and contends that Lower Appellate Court had noticed documents produced by defendants Nos.3 and 4 before the trial Court, which had been overlooked by the said trial Court, found that there was no prima facie case in favour of plaintiffs and as such it has recorded a finding that in the event of temporary injunction is granted, it would be defendants who would be put to irreparable loss and balance of convenience is lying in their favour, it had vacated the same. Hence, he prays for rejection of this writ petition.
8. Having heard the learned Advocates appearing for parties and on perusal of records it would disclose that there is no dispute to the fact that first defendant – father of plaintiff Nos.1 and 2 had acquired title to the suit property under a registered partition entered into between first defendant and his brothers on 23.02.2006. Subsequently, on 18.03.2008 he sold the suit schedule properties in favour of defendant No.2. A perusal of recitals found in the said sale deed would disclose that it has been stated that said property has been sold for legal necessities and the recital thereunder reads as under:
“WHEREAS, the Vendors for their legal necessities and family benefits in concurrence have offered to sell the Schedule Property for a valuable consideration. The Purchaser has agreed to purchase the Schedule property free from all encumbrances. Hence, this deed.”
9. Prima facie above recital would disclose that for family necessities suit schedule properties were sold. Records would also disclose that on the very next day first defendant has purchased those properties under sale deed dated 18.03.2008 in the name of his wife. Records would further disclose that first defendant, who had also acquired title to other properties under partition dated 23.02.2006, had got converted those properties to non-agricultural, residential as well as industrial purposes and at this juncture, it cannot not be held that defendants did not have prima facie case or it cannot be said that plaintiffs were having prima facie case. For these reasons, Appellate Court has taken note of the fact that three ingredients necessary for grant of temporary injunction is conspicuously absent or in other words, it is held that none of these ingredients are found in favour of plaintiffs. As such it has rightly interfered with the order of the trial Court and reversed the order of trial Court by allowing the appeals.
10. There is no infirmity or illegality committed by the Lower Appellate Court calling for interference by this Court. Hence, this Court finds there is no good ground to entertain these writ petitions. Accordingly, writ petitions are hereby rejected.
SD/- JUDGE DR