Allowed

Smt Munivenkatamma v. Sri S Sampangiramaiah

Karnataka HC6 Sept 2021MFA/2350/2021

Case brief

AI extract

What is this about?

Suit for partition and separate possession in which defendant No.1 obtained temporary injunction restraining defendant Nos.4 to 7 and 15 to 17 from alienating the suit properties. In appeals by those defendants, the High Court held the second partition suit was filed during the pendency of the appeal in the earlier partition suit and that defendant No.1 had suppressed his own admissions; injunctio

What did the court decide?

Impugned order of the Trial Court on I.A.Nos.I and II of 2021 set aside and the said applications rejected.

Smt Munivenkatamma Vs Sri S Sampangiramaiah — Partition | Karnataka HC (2021)

¶1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^th DAY OF SEPTEMBER 2021

¶3

BEFORE

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THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

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M. F. A. NO.2350 OF 2021 (CPC)

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C/W

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M. F. A. NO.2435 OF 2021 M. F. A. NO.2866 OF 2021

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IN M.F.A. No.2350/2021

¶9

BETWEEN:

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1 . SMT MUNIVENKATAMMA W/O LATE RAMAIAH AGED ABOUT 58 YEARS

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2 . SRI RAGHU R S/O LATE RAMAIAH AGED ABOUT 40 YEARS

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3 . SRI ARUN KUMAR S/O LATE RAMAIAH AGED ABOUT 38 YEARS

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4 . SMT PUSHPA R D/O LATE RAMAIAH AGED ABOUT 36 YEARS

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APPELLANTS No.1 TO 4 R/AT NO.2468-A II CROSS, 4^TH MAIN, HAL II STAGE, BDA LAYOUT, BENGALURU - 560 017

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...APPELLANTS

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(BY SRI. P D SURANA, ADVOCATE)

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AND:

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1 . SRI. S SAMPANGIRAMAIAH S/O LATE SIDDAPPA AGED ABOUT 72 YEARS R/AT NO.44, KODIHALLI MAIN ROAD INDIRANAGAR POST BENGALURU - 560 038.

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SRI S ANJANAPPA S/O LATE SIDDAPPA SINCE DEAD BY LRS THE RESPONDENTS 2 TO 4

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SMT KALAVATHI W/O LATE S ANJANAPPA AGED ABOUT 49 YEARS

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3 . SMT. A SHOBHA D/O LATE S ANJANAPPA W/O SRI RAGHUNATH AGED ABOUT 33 YEARS

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4 . SRI. A SUNIL S/O LATE S ANJANAPPA AGED ABOUT 33 YEARS

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RESPONDENTS 2 TO 4 ARE R/AT 2^ND CROSS BASAVANAGARA, MARATHALLI POST BENGALURU - 560 037.

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5 . SRI. S GOVINDARAJU S/O LATE SIDDAPPA AGED ABOUT 66 YEARS R/A NO.1908, 8^TH CROSS 4^TH MAIN, HAL III STAGE BENGALURU - 560 075.

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6 . SMT. SUSHEELA D/O LATE VENKATARAMANAPPA AND LATE RAMAKKA

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AGED ABOUT 56 YEARS

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R/AT NO.22 AND 23, 4^TH CROSS BACK SIDE OF LEELA PALACE KODIHALLI, BENGALURU - 560 008

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7 . SMT. LAKSHMI @ MUNILAKSHMAMMA D/O LATE VENKATARAMANAPPA AND LATE RAMAKKA AGED ABOUT 54 YEARS R/AT NO.114/1, 2^ND MAIN GOPAL REDDY OLD HOUSE OPP ASHWINS HEIGHTS APARTMENTS, KODIHALLI BENGALURU - 560 008.

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8 . SRI V. NANJUNDAPPA S/O LATE VENKATARAMANAPPA @ LATE RAMAKKA AGED ABOUT 52 YEARS

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9 . SRI V NAGARAJ

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S/O LATE VENKATARAMANAPPA AND LATE RAMAKKA AGED ABOUT 46 YEARS

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10 . SRI V PILLARAJA S/O LATE VENKATARAMANAPPA AND LATE RAMAKKA AGED ABOUT 44 YEARS

¶35

RESPONDENTS 8 TO 10 ARE R/A NO.52/2 13^TH MAIN, 6^TH CROSS, HAL III STAGE KODIHALLI, BENGALURU - 560 008.

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11 . SMT RADHA D/O LATE SANJEEVAPPA AND LATE MUNIYAPPA AGED ABOUT 49 YEARS

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12 . SRI SHASHIKUMAR

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S/O LATE SANJEEVAPPA AND LATE MUNIYAPPA AGED ABOUT 39 YEARS

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RESPONDENTS 11 AND 12 ARE R/A NO.44 KODIHALLI MAIN ROAD

¶40

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INDIRANAGAR POST BENGALURU - 560 038.

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13 . SRI B PRASANNAIAH S/O LATE BRAMASURAIAHA AGED ABOUT 72 YEARS R/AT NO.36/19, 10^TH MAIN 5^TH STAGE, JAYANAGAR BENGALURU - 560 078.

¶43

14 . SRI K J PURUSOTTAM S/O LATE K B JAYARAM AGED ABOUT 48 YEARS R/A NO.327, 10^TH A MAIN ROAD 8^TH BLOCK, KORAMANGALA BENGALURU – 95.

¶44

15 . SRI PRASHANTH PRASAD S/O LATE K PRASAD AGED ABOUT 41 YEARS R/A MAHALAXMI NILAYA NO.92/93 (OLD NO.45) SANNIDHI ROAD, BASAVANAGUDI BENGALURU - 560 004.

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SRI S NARAYANAPPA S/O LATE SIDDAPPA SINCE DEAD BY LRS REP. BY RESPODENTS NO.16 TO 23

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SMT ANNAMMA W/O LATE NARAYANAPPA AGED ABOUT 63 YAERS

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17 . SMT N LAKSHMI D/O LATE S NARAYANAPPA AGED ABOUT 45 YEARS

¶48

¶49

18 . SMT N NAGAVENI D/O LATE S NARAYANAPPA AGED ABOUT 43 YEARS

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19 . SMT N PADMAVATHI D/O LATE S NARAYANAPPA AGED ABOUT 41 YEARS

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20 . SMT N SARASWATHI D/O LATE S NARAYANAPPA AGED ABOUT 39 YEARS

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21 . SMT N MANGALA GOWRI D/O LATE S NARAYANAPPA AGED ABOUT 38 YEARS

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22 . SMT N PARVATHI D/O LATE S NARAYANAPPA AGED ABOUT 37 YEARS

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23 . SMT N JYOTHI D/O LATE S NARAYANAPPA AGED ABOUT 34 YEARS

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24 . SRI N PARMESHA S/O LATE S NARAYANAPPA AGED ABOUT 31 YEARS

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RESPONDENTS 16 TO 24 ARE RESIDING AT 2^ND MAIN, BASAVANAGARA MAIN ROAD MARATHALLI POST BENGALURU - 560 037.

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….RESPONDENTS

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(BY SRI. D.R. RAVISHANKAR, ADVOCATE FOR C/R-1 SRI. N. JAGADEESH, ADVOCATE FOR R-6 TO R-10)

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THIS MFA IS FILED UNDER SECTION 43 RULE 1(r) OF CPC PRAYING TO SET ASIDE THE COMMON ORDER DATED. 01.03.2021 PASSED ON IA NOS.I AND II OF 2021 SO FAR AS IT

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RELATES TO ORDER MADE ON I.A.2/2021 IN O.S. NO.2391/2017, ON THE FILE OF THE LXIV-ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-65), BENGALURU CITY AND REVERSE THE SAME IN THE INTEREST OF JUSTICE.

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IN M.F.A. No.2435/2021 BETWEEN:

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1 . SMT MUNIVENKATAMMA W/O LATE RAMAIAH AGED ABOUT 58 YEARS

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2 . SRI RAGHU R S/O LATE RAMAIAH AGED ABOUT 40 YEARS

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3 . SRI ARUN KUMAR S/O LATE RAMAIAH AGED ABOUT 38 YEARS

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4 . SMT PUSHPA R D/O LATE RAMAIAH AGED ABOUT 36 YEARS

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APPELLANTS No.1 TO 4 R/AT NO.2468-A II CROSS, 4^TH MAIN, HAL II STAGE, BDA LAYOUT, BENGALURU - 560 017

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...APPELLANTS

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(BY SRI. P D SURANA, ADVOCATE)

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AND:

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1 . SRI. S SAMPANGIRAMAIAH S/O LATE SIDDAPPA AGED ABOUT 72 YEARS R/AT NO.44, KODIHALLI MAIN ROAD INDIRANAGAR POST, BENGALURU - 560 038. SRI S ANJANAPPA S/O LATE SIDDAPPA SINCE DEAD BY LRS THE RESPONDENTS 2 TO 4

¶72

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SMT KALAVATHI W/O LATE S ANJANAPPA AGED ABOUT 49 YEARS

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3 . SMT. A SHOBHA D/O LATE S ANJANAPPA W/O SRI RAGHUNATH AGED ABOUT 33 YEARS

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4 . SRI. A SUNIL S/O LATE S ANJANAPPA AGED ABOUT 33 YEARS

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RESPONDENTS 2 TO 4 ARE R/AT 2^ND CROSS BASAVANAGARA, MARATHALLI POST BENGALURU - 560 037.

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5 . SRI. S GOVINDARAJU S/O LATE SIDDAPPA AGED ABOUT 66 YEARS R/A NO.1908, 8^TH CROSS 4^TH MAIN, HAL III STAGE BENGALURU - 560 075.

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6 . SMT. SUSHEELA D/O LATE VENKATARAMANAPPA AND LATE RAMAKKA AGED ABOUT 56 YEARS R/AT NO.22 AND 23, 4^TH CROSS BACK SIDE OF LEELA PALACE KODIHALLI, BENGALURU - 560 008

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7 . SMT. LAKSHMI @ MUNILAKSHMAMMA D/O LATE VENKATARAMANAPPA AND LATE RAMAKKA AGED ABOUT 54 YEARS R/AT NO.114/1, 2^ND MAIN GOPAL REDDY OLD HOUSE OPP ASHWINS HEIGHTS APARTMENTS, KODIHALLI BENGALURU - 560 008.

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8 . SRI V. NANJUNDAPPA S/O LATE VENKATARAMANAPPA @ LATE RAMAKKA AGED ABOUT 52 YEARS

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9 . SRI V NAGARAJ S/O LATE VENKATARAMANAPPA AND LATE RAMAKKA AGED ABOUT 46 YEARS

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10 . SRI V PILLARAJA S/O LATE VENKATARAMANAPPA AND LATE RAMAKKA AGED ABOUT 44 YEARS

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RESPONDENTS 8 TO 10 ARE R/A NO.52/2 13^TH MAIN, 6^TH CROSS, HAL III STAGE KODIHALLI, BENGALURU - 560 008.

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11 . SMT RADHA

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D/O LATE SANJEEVAPPA AND LATE MUNIYAPPA AGED ABOUT 49 YEARS

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12 . SRI SHASHIKUMAR S/O LATE SANJEEVAPPA AND LATE MUNIYAPPA AGED ABOUT 39 YEARS

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RESPONDENTS 11 AND 12 ARE R/A NO.44 KODIHALLI MAIN ROAD INDIRANAGAR POST BENGALURU - 560 038.

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13 . SRI B PRASANNAIAH S/O LATE BRAMASURAIAHA AGED ABOUT 72 YEARS R/AT NO.36/19, 10^TH MAIN 5^TH STAGE, JAYANAGAR BENGALURU - 560 078.

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14 . SRI K J PURUSOTTAM S/O LATE K B JAYARAM

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AGED ABOUT 48 YEARS R/A NO.327, 10^TH A MAIN ROAD 8^TH BLOCK, KORAMANGALA BENGALURU – 95.

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15 . SRI PRASHANTH PRASAD S/O LATE K PRASAD AGED ABOUT 41 YEARS R/A MAHALAXMI NILAYA NO.92/93 (OLD NO.45) SANNIDHI ROAD, BASAVANAGUDI BENGALURU - 560 004.

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SRI S NARAYANAPPA S/O LATE SIDDAPPA SINCE DEAD BY LRS REP. BY RESPODENTS NO.16 TO 23

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SMT ANNAMMA W/O LATE NARAYANAPPA AGED ABOUT 63 YAERS

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17 . SMT N LAKSHMI D/O LATE S NARAYANAPPA AGED ABOUT 45 YEARS

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18 . SMT N NAGAVENI D/O LATE S NARAYANAPPA AGED ABOUT 43 YEARS

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19 . SMT N PADMAVATHI D/O LATE S NARAYANAPPA AGED ABOUT 41 YEARS

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20 . SMT N SARASWATHI D/O LATE S NARAYANAPPA AGED ABOUT 39 YEARS

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21 . SMT N MANGALA GOWRI D/O LATE S NARAYANAPPA AGED ABOUT 38 YEARS

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22 . SMT N PARVATHI D/O LATE S NARAYANAPPA AGED ABOUT 37 YEARS

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23 . SMT N JYOTHI D/O LATE S NARAYANAPPA AGED ABOUT 34 YEARS

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24 . SRI N PARMESHA S/O LATE S NARAYANAPPA AGED ABOUT 31 YEARS

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RESPONDENTS 16 TO 24 ARE RESIDING AT 2^ND CROSS, BASAVANAGARA MAIN ROAD MARATHALLI POST

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BENGALURU - 560 037.

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….RESPONDENTS

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(BY SRI. D.R. RAVISHANKAR, ADVOCATE FOR C/R-1)

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THIS MFA IS FILED UNDER SECTION 43 RULE 1(r) OF CPC PRAYING TO SET ASIDE THE COMMON ORDER DATED. 01.03.2021 PASSED ON IA NOS.I AND II OF 2021 SO FAR AS IT RELATES TO ORDER MADE ON I.A.I/2021 IN O.S. NO.2391/2017, ON THE FILE OF THE LXIV-ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-65), BENGALURU CITY AND REVERSE THE SAME IN THE INTEREST OF JUSTICE.

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IN M.F.A. No.2866/2021

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BETWEEN:

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SRI. PRASHANTH PRASAD S/O LATE K PRASAD AGED ABOUT 39 YEARS

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¶114

R/AT MAHALAKSHMI NILAYA No.92/93, OLD No.45, SANNIDHI ROAD BASAVANAGUDI BENGALURU – 560 004. (BY SMT. ANURADHA URS M.D., ADVOCATE) AND:

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...APPELLANT

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1 . SRI. S SAMPANGIRAMAIAH S/O LATE SIDDAPPA AGED ABOUT 70 YEARS, NOW R/AT NO.44, KAMADHENU KUTEERA, KODIHALLI MAIN ROAD HAL II STAGE, INDIRANAGAR POST, BENGALURU - 560 038.

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LATE S ANJANAPPA SINCE DEAD BY LRS

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2(a) SMT KALAVATHI W/O LATE S ANJANAPPA AGED ABOUT 47 YEARS

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2(b) SMT. A SHOBHA D/O LATE S ANJANAPPA AGED ABOUT 30 YEARS

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2(c) SRI. A SUNIL S/O LATE S ANJANAPPA AGED ABOUT 30 YEARS RESPONDENTS 2(a) TO 2(c) ARE R/AT 2^ND CROSS BASAVANAGARA, MARATHALLI POST BENGALURU - 560 037.

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3 . SRI. S GOVINDARAJU S/O LATE SIDDAPPA

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AGED ABOUT 64 YEARS R/A NO.1908, 8^TH CROSS 4^TH MAIN, HAL III STAGE BENGALURU - 560 075.

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SMT. M MUNIVENKATAMMA W/O LATE RAMAIAH AGED ABOUT 57 YEARS RESIDING AT NO 2468-A 2^ND CROSS, 4^TH MAIN ROAD BDA LAYOUT BENGALURU – 560 017.

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SRI. RAGHU R S/O LATE RAMAIAH AGED ABOUT 39 YEARS

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SRI. ARUN KUMAR R S/O LATE RAMAIAH AGED ABOUT 37 YEARS

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SMT PUSHPA R D/O LATE RAMAIAH W/O NATARAJAN AGED ABOUT 35 YEARS

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RESPONDENT Nos.5-7 ARE R/AT No. 2468/A, 2^ND CROSS 4^TH MAIN, HAL 3^RD STAGE BDA LAYOUT BENGALURU – 560 017.

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8 . SMT. SUSHEELA D/O LATE RAMAKKA AGED ABOUT 55 YEARS R/AT NO.22 AND 23, 4^TH CROSS NEAR LEELA PALACE BACK SIDE KODIHALLI, BENGALURU - 560 008

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9 . SMT. LAKSHMI @ MUNILAKSHMAMMA D/O LATE RAMAKKA AGED ABOUT 53 YEARS R/AT NO.114/1, 2^ND MAIN GOPAL REDDY OLD HOUSE OPP ASHWINS HEIGHTS APARTMENTS, KODIHALLI, BENGALURU - 560 008.

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10 . SRI V. NANJUNDAPPA S/O LATE VENKATARAMAPPA & LATE RAMAKKA AGED ABOUT 50 YEARS

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11 . SRI V NAGARAJA S/O LATE VENKATARAMAPPA AND LATE RAMAKKA AGED ABOUT 45 YEARS

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12 . SRI V PILLARAJA S/O LATE VENKATARAMAPPA AND LATE RAMAKKA AGED ABOUT 43 YEARS

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RESPONDENTS No. 10 TO 12 ARE R/A NO.52/2 13^TH MAIN, 6^TH CROSS, HAL III STAGE KODIHALLI, BENGALURU - 560 008.

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13 . SMT RADHA

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D/O LATE SANJEEVAPPA AND LATE MUNIYAPPA AGED ABOUT 47 YEARS

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14 . SRI SHASHIKUMAR S/O LATE SANJEEVAPPA AND LATE MUNIYAPPA AGED ABOUT 37 YEARS

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RESPONDENTS 13 AND 14 ARE R/A NO.44 KODIHALLI MAIN ROAD INDIRANAGAR POST BENGALURU - 560 038.

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15 . SRI B PRASANNAIAH S/O LATE BRAHMASURAIAH

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AGED ABOUT 70 YEARS R/AT NO.36/19, 10^TH MAIN 5^TH BLOCK, JAYANAGAR BENGALURU - 560 041.

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16 . SRI K J PURUSHOTTAM S/O LATE K B JAYARAM AGED ABOUT 46 YEARS R/A NO.327, 1^ST A MAIN ROAD 8^TH BLOCK, KORAMANGALA BENGALURU – 95.

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SRI S NARAYANAPPA S/O LATE SIDDAPPA SINCE DEAD BY LRS REP.

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17(a) SMT ANNAMMA W/O NARAYANAPPA AGED ABOUT 62 YAERS

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17(b) SMT N LAKSHMI D/O S NARAYANAPPA AGED ABOUT 44 YEARS

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17(c) SMT N NAGVENI D/O S NARAYANAPPA AGED ABOUT 42 YEARS

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17(d) SMT N PADMAVATHI D/O LATE S NARAYANAPPA AGED ABOUT 40 YEARS

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17(e) SMT N SARASWATHI D/O S NARAYANAPPA AGED ABOUT 38 YEARS

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17(f) SMT N MANGALA GOWRI D/O S NARAYANAPPA AGED ABOUT 36 YEARS

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17(g) SMT N PARVATHI D/O LATE S NARAYANAPPA AGED ABOUT 34 YEARS

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17(h) SMT N JYOTHI D/O S NARAYANAPPA AGED ABOUT 30 YEARS

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17(j) SRI N PARMESHA S/O S NARAYANAPPA AGED ABOUT 30 YEARS

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RESPONDENTS No. 17(a) TO 17(j) ARE RESIDING AT 2^ND CROSS, BASAVANAGARA MAIN ROAD MARATHALLI POST

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BENGALURU - 560 037.

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….RESPONDENTS

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(BY SRI. D.R. RAVISHANKAR, ADVOCATE FOR C/R-1)

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THIS MFA IS FILED UNDER SECTION 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED. 01.03.2021 VIDE ANNEXURE-A PASSED ON IA. NOS.I AND II OF 2021 IN O.S. NO.2391/2017, ON THE FILE OF THE LXIV-ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-65), BENGALURU CITY.

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THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 11.08.2021, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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These appeals are filed by the appellants challenging the orders on I.A.Nos.I and II of 2021 passed in O.S.No.2391/2017 dated 1.3.2021 by LXIV Addl. City civil and Sessions Judge (CCH 65), Bengaluru City.

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Parties are referred to as they are arrayed before the Trial Court.

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Brief facts of the case leading rise to the filing of these appeals are that originally S.Narayanappa filed a suit in O.S.No.2391/2017 for partition and separate possession and for declaration. In the said suit, defendant No.1 filed an application in I.A.Nos.I and II of 2021 i.e. seeking for the reliefs of temporary injunction restraining defendant Nos.4 to 7 and 15 to 17 from alienating or creating any kind of third party rights thereof in whatsoever manner to the suit schedule properties till the disposal of the suit and changing and altering the nature and character of the suit schedule properties, either themselves or through their agents or

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authorised person or persons pending disposal of the suit, respectively.

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3.1. Defendant No.1 in support of the applications filed an affidavit stating that his father late Siddappa begot seven children including S.Narayanappa i.e. the original plaintiff, himself and other defendants and during his life time, he acquired lands Sy.No.66/1,66/5, 67/3 situated at Domluru village, Kasaba Hobli, Bengaluru North Taluk under registered sale deeds. The said properties are the self acquired properties of late Siddappa. It is contended that there is no partition in the family of late Siddappa. The said Siddappa died on 26.1.2005 leaving behind S.Narayanappa and other defendants as his legal heirs. Hence, the original plaintiff-S.Narayanappa filed a suit for partition and separate possession.

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3.2. Defendant No.4 has filed objections to the said applications and denied that the suit schedule property are the joint family properties which are in joint possession and enjoyment of all the parties to the suit.

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3.3. It is contended that the plaintiff filed a suit in O.S.No.6669/2000. The said suit came to be dismissed on 02.09.2007. The plaintiff aggrieved by the judgment and decree passed in the aforesaid suit, filed appeal in RFA No.30/2008 and the same is pending before this Court. It is further contended that the suit properties were acquired by the Government under final notification dated 14.12.1982 for the benefit of Amarjyothi House Building Co-operative Society Ltd. Bengaluru. An award was made and the State Government had taken the possession of the aforesaid lands.

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3.4. Under the said circumstances and in view of the

¶174

death of Ramaiah i.e. husband of defendant No.4, late Siddappa had devised the settlement of the aforesaid properties in favour of defendant No.4. As per the devise, defendant No.4 was given right to receive compensation for the aforesaid acquired lands. It was further devised that in case of the properties being released from acquisition,

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defendant No.4 herein shall become the owner of the said properties and the defendant No.4 shall pay a sum of Rs.10 lakh each to the brothers viz. plaintiff, defendant Nos.1, 2, 3 and a sum of Rs.2,00,000/- lakh to each of the two daughters of late Siddappa.

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3.5. Late Siddappa aggrieved by the acquisition proceedings had filed a writ petition in W.P.No.3841/1995. The said writ petition came to be dismissed by this Court. The Hon’ble Supreme Court in SLP No.13114 of 1991 and 13339 of 1991 connected with other cases, held that the acquisitions to be fraudulent and directed the State to redeliver the properties of the acquired lands to the land owners.

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3.6. As per the order passed by the Hon’ble Apex

¶179

Court, State has delivered possession of the acquired lands in favour defendant No.4. Defendant Nos.4 to 7, being the legal heirs of Ramaiah, undertaken development of an area of 8000 sq. ft. of land in Sy.No.66/1. BBMP has sanctioned

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the construction of the residential building in regard to three sites and the development work is undertaken in accordance with the sanctioned plan.

¶182

3.7. It is contended that the deceased plaintiff-

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S.Narayanappa in order to harass the other defendants, filed applications- I.As 1 and 2 of 2017.

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3.8. The Trial Court after hearing the matter dismissed

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the applications vide order dated 12.11.2019. Defendant No.1 aggrieved by the order dated 12.11.2019 preferred an appeal in MFA No.755/2018. This Court vide order dated 25.01.2021 set aside the order dated 12.11.2019 passed by the trial Court in O.S.No.2391/2017 reserving liberty to defendant No.1 to file interlocutory applications before the Trial Court and further directed the Trial Court that if any such applications are made by defendant No.1, to consider the applications and pass appropriate order.

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3.9. Thereafter, defendant No.1 filed applications in I.A.I and I.A.II of 2021 seeking an order of temporary

¶187

¶188

injunction against defendant Nos.4 to 7 and 15 to 17. The Trial Court after hearing the parties, allowed the applications filed by defendant No.1. Hence, the appeals i.e. MFA No.2350/2021 and MFA 2435/2021 are filed by defendant Nos.4 to 7 and MFA No.2866/2021 are filed by defendant No.17.

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Heard the learned counsel for the appellants i.e.

¶190

defendants No.4 to 7 and 17.

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Learned counsel for the appellants submits that defendant No.1 has filed additional written statement in O.S.No.17068/2005 (filed by Abhishek Poddar) wherein defendant No.1 has admitted that the Government has handed over the possession of the land in favour of Smt Munivenkatamma i.e. defendant No.4 after collecting award amount from her and further pleaded that defendant No.4 is in possession and enjoyment of the land without any interference or obstruction either from the plaintiff or anybody, including defendant No.1. He further submits that

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once defendant No.1 having accepted possession of defendant No.4, he (defendant No.1) has no right to deny the contents of the additional written statement. He further submits that the instant suit (O.S.No.2391/2017) filed by the plaintiff is not maintainable as suit in O.S.No.6669/2013 for partition and separate possession is pending in RFA No.30/2008 before this Court. Plaintiff cannot initiate a parallel proceeding as the appeal is the continuation of the original suit.

¶194

5.1. The learned counsel for the appellants further submits that the total area of the suit property is 66,429 sq. ft. wherein defendant Nos.15 to 17 are undertaking construction in 8,000 sq. ft. and the construction was undertaken prior to the institution of the suit. He further submits that even if the suit for partition is decreed, the plaintiff and other defendants will get a share in the remaining properties. He further submits that earlier the Trial Court dismissed the very same applications filed by the plaintiff vide order dated 12.11.2019. After the disposal of

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the Miscellaneous first appeal, defendant No.1, in support of his contention, has not produced any additional documents. The Trial Court without considering the said aspect has passed the impugned order which has resulted in miscarriage of justice. He further submits that the suit filed by the plaintiff is not maintainable under Order II Rule 2 of CPC. He further submits that the second suit for partition and separate possession is not maintainable.

¶197

5.2. The learned counsel for the appellants further submits that as per the settlement deed executed between the parties, the parties have acted upon and defendant No.1 has received the amount. In order to substantiate his contentions, defendant No.4 has produced a copy of the statement of account issued by the Bank.

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5.3. He further submits that defendant No.1 has filed an affidavit in O.S.No.2391/2017 reiterating the averments made in the additional written statement filed in O.S.No.17068/2005. The learned counsel further submits

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that defendants 4 to 7 and 15 to 17 have invested huge amount for conversion of agriculture into non-agriculture purpose and obtained a sanction for construction of the building and had started construction and at this stage if construction is stopped, the appellants will be put to huge loss.

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5.4. He further places reliance on the judgment of Hon’ble Apex Court in the case of THIMMAPPA RAI V. RAMANNA RAI AND ORS. reported in AIR 2007 SCW 327 and also judgment of this Court in PARASHURAM NEMANI KUDUCHAKAR AND OTHERS V. SMT. SHANTABAI RAMACHANRA KUDUCHAKAR reported in 2004(6) Kar.L.J 275. The Trial Court without considering the said aspect has passed the impugned orders. He submits that the impugned orders passed by the Trial Court are liable to be set aside. Hence, prays to allow the appeals.

¶202

Learned counsel for the appellant in MFA No.2866/2021 adopts the argument of the learned counsel

¶203

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for the appellants in MFA No.2435/2021 and MFA

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No.2450/2021.

¶206

Per contra, learned counsel for defendant No.1 submits that the defendant No.1 has made a serious allegation against the counsel appearing for defendant No.1 in the suit O.S.No.17068/2005. He further submits that the said counsel without the instructions of defendant No.1 filed the additional written statement as there was no necessity for the counsel to file the additional written statement admitting about the possession of defendant No.4. He further submits that the counsel appearing for defendant No.1 has entered into a joint agreement dated 12.10.2009. In the said agreement, defendant No.4 has clearly admitted that the suit schedule properties are joint family properties which belongs to late Siddappa. He further submits that in the settlement deed, signature of Munivenkatamma i.e. defendant No.4 and late Siddappa are appearing. He further submits that a fraud was played to divest the share of

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Munivenkatama and on the basis of the said document, claiming the title of the absolute ownership. He further submits that the said document has not seen the light of day till 2009. He further submits that the said settlement deed had been got created and a criminal case was registered against the counsel appearing for defendant No.1 in the earlier suit (O.S.No.17068/05) and also against the developer. He further submits that the counsel appearing for defendant No.1 appeared for Munivenkatamma i.e. defendant No.4 in MFA No.755/2020 (filed by defendant No.1).

¶209

7.1. He further submits that defendant No.4 is claiming

¶210

the title based on created records. He further submits that the property which was excluded in the earlier suit, can maintain a separate suit for partition and separate possession and further submits that equity does not go in favour of defendant Nos.4 to 7 and 15 to 17. He further submits that in order to preserve the property, if the parties

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¶212

are directed to maintain status quo, no injustice would be

¶213

caused to the parties.

¶214

7.2. In order to buttress his argument, he has placed

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the reliance on the judgment of this Court in NANJAMMA V.

¶216

AKKAYAMMA AND OTHERS reported in (2015) 3 KLJ 357. He also placed reliance on the judgment of the Hon’ble Apex

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Court in BAPUSAHEB CHIMASAHEB NAIK NIMBALKAR

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(DEAD THROUGH LEGAL REPRESENTATIVES) AND ANOTHER V.

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MAHESH VIJAYSINHA RAJEBHOSALE AND OTHERS

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reported in (2017) 7 SCC 769 and also in case of JASODA

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KUMARI SEWANI AND OTHES V. SMT.SATYABHAMA

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SEWANI AND OTHERS reported in AIR 1960 PATNA 76.

¶223

7.3. He further submits that the Trial Court was

¶224

justified in passing the impugned order. Hence, prays to dismiss the appeals.

¶225

Heard the learned counsel for the parties and perused the records.

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The undisputed facts are that late Siddappa acquired lands bearing Sy.Nos.66/1, 66/5 and 67/3 situated at Domluru. The said properties are the self acquired properties of Late Siddappa. The said lands were acquired by the State for the benefit of M/s.Amarjyothi House Building Co operative Society. The said acquisition proceedings was challenged by the owners of the lands before this Court. The said acquisition proceedings was quashed by this Court. M/s. Amrajyothi House Building Co operative Society preferred an appeal before the Hon’ble apex Court in SLP No.13114 and 1339 of 1991. The Hon’ble Apex Court dismissed the SLP filed by the said Society and directed the State Government to hand over the acquired land to the owners or to their legal representatives or to their legal heirs after collecting amount awarded to them by way compensation.

¶228

During the life time of late Siddappa, he had executed a deed of settlement. As per the deed of settlement, defendant No.4 was required to pay Rs.10 lakh

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¶230

each to the plaintiff and defendant Nos.1 to 3 in the event of restoration of lands by the land Acquisition Officer. As per the order of the Hon’ble Apex Court and as per the deed of settlement, defendant No.4 had deposited the compensation amount and the State had redelivered the possession of the suit schedule properties to the defendant No.4. The defendant No.4 is in possession and enjoyment of the suit schedule properties.

¶231

The plaintiff filed a suit in O.S.No.6669/2000 for partition and separate possession against the defendants. The said suit came to be dismissed vide judgment and decree dated 2.9.2007. The plaintiff aggrieved by the judgment and decree passed in the said suit preferred appeal in R.F.A.No.30/2008 which is pending before this Court. During the pendency of the suit for partition and separate possession (O.S.No.6669/2000), the plaintiff has filed the second suit (O.S.No.2391/2017) for partition and separate possession in respect of the schedule properties.

¶232

¶233

The Hon’ble Apex Court in the case (BANUKUMAR JAIN V. ARCHANA KUMAR AND ANOTHER) reported in

¶234

AIR 2005 SC 626 has held that law permits a litigant to fight out a litigation and seek redressal in respect of his claim in one forum and in only one forum and the litigant cannot be allowed to proceed with two parallel proceedings and seek redressal.

¶235

In the present case, the plaintiff during the pendency of the suit for partition and separate possession has filed another suit for partition and separate possession which is contrary to the law laid down by the Hon’ble Apex Court in the aforesaid judgment.

¶236

That defendant No.4 in order to substantiate his contention, has produced a copy of the deed of settlement executed by late Siddappa and defendant No.4. As per the recital in the deed of settlement, it is clear that if the schedule property is released from the acquisition, then the suit lands shall absolutely belong to defendant No.4. The

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¶238

said fact is admitted by defendant No.1 in the additional written statement (10.03.2008) filed by him and also in the affidavit filed by defendant No.1 on 15.11.2011 in O.S.No.17068/2005 and further in order to establish that the parties have acted upon the deed of settlement, defendant No.4 has produced the bank statement issued by the Corporation Bank. From a perusal of the bank statement, it is seen that defendant No.4 has paid Rs.10 lakh to the plaintiff and defendant Nos.1 to 3 prior to the institution of the suit-O.S.No.2391/2017.

¶239

The allottees of Amarjyothi Housing Co operative Society has filed a writ petition against the defendant No.4. Defendant No.4 contested the litigations and writ petition filed by the allottees came to be dismissed by this Court. Defendant No.4 has spent amount towards litigation expenses. Neither defendant No.1 nor defendant No.2 to 3 and 8 to 11 have approached the State Government for restoration of the suit schedule properties claiming that suit properties are joint family properties. That one Sri Abhishek

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¶241

Poddar filed a suit in O.S.No.17068/2005 against defendant No.1. In the said suit, defendant No.1 filed a written statement and examined himself as DW1. Defendant No.1 has admitted the ownership of defendant No.4 over the suit properties and also regarding redelivery of possession by the State on re-depositing of the compensation amount by defendant No.4. In the said suit, defendant No.1 has stated that he has no right, title or interest in the suit properties. Defendant No.1 suppressed the aforesaid fact, admission given by him in the suit i.e. O.S.No.2391/2011 filed the instant applications.

¶242

The defendant No.4 after payment of amount to the plaintiff and defendant No.1 as per the deed of settlement, started development of land in Sy.No.66/1 and obtained a sanction plan for construction of residential building which is smaller area out of suit schedule property. Development of said area could not in any manner prejudice defendant No.1 in the event of stoppage of foundation work. The defendant No.4 and her children have executed

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registered sale agreement in favour of defendant Nos.15 and 16 on 10.6.2011 except in Sy.No.66/5 measuring 26 guntas and in Sy.No.67/3 measuring 24 guntas and have entered into a memorandum of understanding with defendant No.17 on 23.7.2015 with respect of land in Sy.No.66/1 measuring 14 guntas for development and construction in the said properties. Defendant No.17 has started construction in the said properties. Defendant No.1 suppressing the said fact has filed applications-I.A.1 and II of 2021 seeking for an order of temporary injunction against defendant Nos.4 to 7 and 15 to 17. The Trial Court without considering the material on records produced by the parties have allowed the applications filed by defendant No.1. The impugned order passed by the Trial Court is arbitrary, erroneous and contrary to the records.

¶245

The learned counsel for the defendant No.1 submits that second suit for partition and separate possession is maintainable. In order to buttress his argument he has relied upon the judgment of this Court in

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SMT.NANJAMMA supra . The said judgment is not

¶248

applicable to the present case in hand as in the said case, the suit was disposed of and subsequently a separate suit for partition has been filed. In the present case, the suit for partition and separate possession i.e. R.F.A.No.30/2008 is pending. The appeal is a continuation of the original suit i.e. O.S.No.6669/2020. The plaintiff ought to have filed an application for adding the suit properties in the said appeal instead of filing applications in the instant suit i.e. O.S.No.2391/2017.

¶249

The learned counsel has further relied on the judgment of the Hon’ble Apex Court in the case BABUSAHEB supra and submits that Order II Rule 2 CPC does not apply if the cause of action of previous and subsequent suits are different. In the said judgment, earlier suit was based on the deed of 1957 and the second suit is after the death of Shakunthala Bai in the year 1962 and the cause of action in the said suits are different. In the present case, it is not the case of the plaintiff that the cause of

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action in O.S.No.6669/2000 and the present suit i.e. O.S.No.2391/2017 is different. Therefore, the said

¶252

judgment is not applicable to the case in hand.

¶253

The learned counsel for the defendant No.1 during

¶254

the course of argument made a serious allegation against the learned counsel Sri D Raju appearing for defendant No.1 in O.S No.17068/2005. Defendant No.1 has filed a written

¶255

statement in the present case. In the said written statement, defendant No.1 has not made any allegation against the learned counsel Sri D Raju. Hence, the argument of learned counsel for defendant No.1 in regard to the allegation made against D Raju cannot be accepted.

¶256

The order of injunction is a discretionary relief. It

¶257

would be granted to a person who comes to the Court with clean hands. From the perusal of the records, defendant No.1 has suppressed the admission made in the pleadings in O.S.No.17068/2005 and also the evidence in the said suit.

¶258

Defendant No.1 has not established a prima facie case and there is no balance of convenience in favour of defendant

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No.1. If injunction order is continued, defendants No.4 to 7

¶261

and 15 to 17 would be put of irreparable loss as the cost of

¶262

construction material is increasing day-by-day.

¶263

Hence, in view of the above discussion, this Court is

¶264

inclined to interfere with the impugned orders.

¶265

Accordingly, the following order is passed :

¶266

ORDER

¶267

i) The appeals are allowed.

¶268

ii) The impugned order passed by the Trial Court on I.A.Nos.I and II of 2021, filed by defendant No.1, is set aside and the said applications are rejected.

¶269

SD/JUDGE

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Smt Munivenkatamma v. Sri S Sampangiramaiah

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Smt Munivenkatamma v. Sri S Sampangiramaiah

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