Allowed

Smt. Jayalakshmi v. Smt. Chikkarangamma

Karnataka HC15 Nov 2021MFA/6681/2017

Case brief

AI extract

What is this about?

The High Court set aside the trial court's rejection of temporary injunction applications in two Miscellaneous First Appeals arising from a partition suit. The apex court found the lower order perverse for ignoring 1965 mortgage admissions and historical revenue records, subsequently granting injunctions to restrain respondents from interfering with specific property schedules pending the trial.

What did the court decide?

The impugned order rejecting IA Nos.2 and 3 is set aside. IA No.2 is allowed to restrain respondents from interfering with schedule 'A' property. IA No.3 is allowed to restrain respondents from interf

Smt. Jayalakshmi Vs Smt. Chikkarangamma — Partition | Karnataka HC (2021)

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M.F.A.No.6682/2017 C/w M.F.A.No.6681/2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF NOVEMBER 2021

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BEFORE

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THE HON’BLE MRS JUSTICE K.S.MUDAGAL

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MISCELLANEOUS FIRST APPEAL NO.6682/2017 (CPC) C/W MISCELLANEOUS FIRST APPEAL NO.6681/2017 (CPC)

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M.F.A.No.6682/2017:

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BETWEEN:

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SIDDAGANGAIAH S/O LATE DASAPPA SINCE DEAD BY LRS.

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SMT.LAKSHMAMMA W/O LATE SIDDAGANGAIAH AGED ABOUT 65 YEARS R/AT SIDDALINGAIAHNAPALYA VILLAGE BYATHA POST, URDIGERE HOBLI TUMKUR TALUK AND DISTRICT

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SMT.S.GANGAMMA W/O H GOPALA KRISHNA D/O LATE SIDDAGANGAIAH

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AGED ABOUT 45 YEARS R/AT NO.143, 4^TH CROSS, MAYANNA LAYOUT BEHIND JINDAL, ANCHEPALYA BANGALORE – 560 073 (CAUSE TITLE AMENDED V/O DATED:13.08.2021 …APPELLANTS

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(BY SRI A.V.GANGADHARAPPA, ADVOCATE)

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AND:

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SMT.CHIKKARANGAMMA W/O LATE RANGASWAMAIAH

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M.F.A.No.6682/2017 C/w M.F.A.No.6681/2017

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AGED ABOUT 61 YEARS R/AT SIDDALINGAIAHNAPALYA VILLAGE BYATHA POST, URDIGERE HOBLI TUMKUR TALUK AND DISTRICT – 572 140

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SMT.DODDARANGAMMA D/O LATE GANGAIAH @ GANGANNA AGED ABOUT 70 YEARS R/AT DODDACHANNAVALLI VILLAGE OBALAPURA POST THYMAGONDLU HOBLI NELAMANGALA TALUK

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BANGALORE RURAL DISTRICT – 562 132

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SRI HUCCHARANGAIAH S/O LATE GANGAIAH @ GANGANNA AGED ABOUT 56 YEARS

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SRI ANAND KUMAR S/O SRI.HUCCHARANGAIAH AGED ABOUT 27 YEARS

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SRI KRISHNAMURTHY S/O SRI.HUCCHARANGAIAH AGED ABOUT 25 YEARS

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RESPONDENT NOS.3 TO 5 ARE

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R/AT SIDDALINGAIAHNAPALYA VILLAGE BYATHA POST, URDIGERE HOBLI TUMKUR TALUK AND DISTRICT – 572 140

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SMT.LAKSHMAMMA D/O LATE GANGAIAH @ GANGANNA AGED ABOUT 64 YEARS

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R/AT DODDACHANNAVALLI VILLAGE OBLAPURA POST, THYMAGONDLU HOBLI NELAMANGALA TALUK

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BANGALORE RURAL DISTRICT – 562 132

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SMT.JAYALAKSHMI D/O LATE RANGASWAMAIAH AGED ABOUT 43 YEARS

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SRI.HARIPRAKASH S/O LATE RANGASWAMAIAH AGED ABOUT 42 YEARS

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M.F.A.No.6682/2017 C/w M.F.A.No.6681/2017

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SMT.MANJULA D/O LATE RANGASWAMAIAH AGED ABOUT 40 YEARS

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SRI.RAVIKUMAR R S/O LATE RANGASWAMAIAH AGED ABOUT 39 YEARS

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SMT.CHANDRAKALA D/O LATE RANGASWAMAIAH AGED ABOUT 37 YEARS

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SMT.KAMALA D/O LATE RANGASWAMAIAH AGED ABOUT 35 YEARS

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13 SMT.KUSUMA D/O LATE RANGASWAMAIAH AGED ABOUT 31 YEARS

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RESPONDENT NOS.7 TO 13 ARE R/AT SIDDALINGAIAHNAPALYA VILLAGE BYATHA POST, URDIGERE HOBLI

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TUMKUR TALUK & DISTRICT – 572 140 ..RESPONDENTS

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(BY SRI V.B.SIDDARAMAIAH, ADVOCATE FOR R2 TO R6; NOTICE TO R1, R7 TO R13 ARE DISPENSED WITH VIDE ORDER DATED 05.02.2018)

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THIS MFA IS FILED UNDER ORDER 43 RULE 1(R) OF CPC PRAYING TO SET ASIDE ORDER DATED 24.07.2017 PASSED BY THE SENIOR CIVIL JUDGE, NELAMANGALA IN O.S.NO.460/2016 ON IA NO.3 FILED UNDER ORDER XXXIX RULES 1 & 2 OF CPC.

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M.F.A. NO.6681/2017:

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BETWEEN:

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SMT.JAYALAKSHMI D/O LATE RANGASWAMAIAH AGED ABOUT 43 YEARS

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SRI.HARIPRAKASH S/O LATE RANGASWAMAIAH AGED ABOUT 42 YEARS

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M.F.A.No.6682/2017 C/w M.F.A.No.6681/2017

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SMT.MANJULA D/O LATE RANGASWAMAIAH AGED ABOUT 40 YEARS

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SRI.RAVIKUMAR R S/O LATE RANGASWAMAIAH AGED ABOUT 39 YEARS

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SMT.CHANDRAKALA D/O LATE RANGASWAMAIAH AGED ABOUT 37 YEARS

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SMT.KAMALA D/O LATE RANGASWAMAIAH AGED ABOUT 35 YEARS

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SMT.KUSUMA D/O LATE RANGASWAMAIAH AGED ABOUT 31 YEARS APPELLANT NOS.1 TO 7 ARE R/AT SIDDALINGAIAHNAPALYA VILLAGE BYATHA POST, URDIGERE HOBLI TUMKUR TALUK & DISTRICT – 572 140 …APPELLANTS

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(BY SRI A.V.GANGADHARAPPA, ADVOCATE)

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AND :

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SMT.CHIKKARANGAMMA W/O LATE RANGASWAMAIAH AGED ABOUT 61 YEARS R/AT SIDDALINGAIAHNAPALYA VILLAGE BYATHA POST, URDIGERE HOBLI TUMKUR TALUK AND DISTRICT – 572 140

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SMT.DODDARANGAMMA D/O LATE GANGAIAH @ GANGANNA AGED ABOUT 70 YEARS R/AT DODDACHANNAVALLI VILLAGE OBALAPURA POST THYMAGONDLU HOBLI NELAMANGALA TALUK BANGALORE RURAL DISTRICT – 562 132

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M.F.A.No.6682/2017 C/w M.F.A.No.6681/2017

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SRI.HUCCHARANGAIAH S/O LATE GANGAIAH @ GANGANNA AGED ABOUT 56 YEARS

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SRI.ANAND KUMAR S/O SRI.HUCCHARANGAIAH AGED ABOUT 27 YEARS

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SRI.KRISHNAMURTHY S/O SRI.HUCCHARANGAIAH AGED ABOUT 25 YEARS

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RESPONDENT NOS.3 TO 5 ARE R/AT SIDDALINGAIAHNAPALYA VILLAGE BYATHA POST, URDIGERE HOBLI TUMKUR TALUK AND DISTRICT – 572 140

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SMT.LAKSHMAMMA D/O LATE GANGAIAH @ GANGANNA AGED ABOUT 64 YEARS

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R/AT DODDACHANNAVALLI VILLAGE

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OBLAPURA POST

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THYMAGONDLU HOBLI

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NELAMANGALA TALUK

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BANGALORE RURAL DISTRICT – 562 132

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SIDDAGANGAIAH S/O LATE DASAPPA AGED ABOUT 70 YEARS R/AT SIDDALINGAIAHNAPALYA VILLAGE BYATHA POST, URDIGERE HOBLI TUMKUR TALUK & DISTRICT–572140 ..RESPONDENTS

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(BY SRI V.B.SIDDARAMAIAH, ADVOCATE FOR R2, R3 & R6; SRI.H.V.SHIVARAM

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FOR SRI MITHUN GERAHALLI, ADVOCATES FOR R4 & R5; R1 & R7 ARE SERVED)

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THIS MFA IS FILED UNDER ORDER XLIII RULE 1(R) OF CPC PRAYING TO SET ASIDE THE ORDER DATED 24.07.2017 PASSED BY THE SENIOR CIVIL JUDGE, NELAMANGALA IN O.S.NO.460/2016 ON IA NO.2 FILED UNDER ORDER XXXIX RULES 1 & 2 OF CPC.

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M.F.A.No.6682/2017 C/w M.F.A.No.6681/2017

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THESE MFAs COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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Aggrieved by rejection of their applications in I.A.Nos.2 and 3 for temporary injunction against the defendants, plaintiff Nos.1 to 8 have preferred the above appeals.

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The appellants in M.F.A.No.6681/2017 are plaintiff Nos.1 to 7, respondent Nos.1 to 6 in the said appeal are defendant Nos.1 to 6 and respondent No.7 is plaintiff No.8 in O.S.No.460/2016 on the file of Senior Civil Judge, Nelamangala.

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The appellant in M.F.A.No.6682/2017 was plaintiff No.8. He died during the pendency of the suit and his legal representatives are brought on record as appellant Nos.1(a) & (b). Respondent Nos.1 to 6 in the said appeals are defendant Nos.1 to 6. Respondent Nos.7 to 13 are plaintiff Nos.1 to 7 in O.S.No.460/2016.

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M.F.A.No.6682/2017 C/w M.F.A.No.6681/2017

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For the purpose of convenience, the parties

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will be referred to henceforth according to their ranks before the trial Court.

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Common ancestor of the plaintiffs and

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defendants was one Huccharangaiah @ Doddarangaiah. The pedigree is as follows:-

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GENEALOGICAL TREE

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Huccharangaiah @ Doddarangaiah (Dead) Smt.Doddakka (Wife) (Dead)

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Siddarangaiah (Dead) Gaviyappa (Dead) Chikkeeramma (Wife) (Dead) Thimmakka (Wife) (Dead)

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Gangaiah @ Ganganna (Dead) Rangaswamaiah (Dead) Gowramma (Wife) (Dead) Chikkarangamma (Wife) (Defendant-1)

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Dasappa (Dead) Doddarangamma (Wife) (Dead) Siddagangaiah (Plaintiff-8) (Appellant in MFA No.6682/2017)

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Jayalakshmi Hariprakash Manjula Ravikumar Chandrakala Kamala Kusuma (Ptf-1) (Ptf-2) (Ptf-3) (Ptf-4) (Ptf-5) (Ptf-6) (Ptf-7) (Appellants in MFA No.6681/2017)

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Doddarangamma Hucharangaiah Nagarajaiah Lakshmamma (Deft-2) (Deft-3) (Dead) (Deft-6) Mallamma (Wife)

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Anand Kumar Krishnamurthy (Deft-4) (Deft-5)

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M.F.A.No.6682/2017 C/w M.F.A.No.6681/2017

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The aforesaid pedigree shows that defendant

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Nos.2 to 6 belong to the branch of Siddarangaiah S/o Huccharangaiah. Defendant No.1 and plaintiff Nos.1 to 7 are the descendents of branch of Gaviyappa and plaintiff No.8 is the descendent of branch of Dasappa.

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The subject matter of O.S.No.460/2016 is the land bearing Survey No.59/1 in all measuring 4 acres 17 guntas of Mackenahalli village, Nelamangala which is shown as suit schedule ‘C’ property. Suit schedule ‘A’ property is 1 acre 19 guntas and suit schedule ‘B’ property is another bit of one acre 19 guntas out of suit schedule ‘C’ property.

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The plaintiffs’ case in brief is as follows:

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i) That suit schedule ‘C’ property belongs to

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Huccharangaiah @ Doddarangaiah. Before 1965 there was oral partition between Siddarangaiah, Gaviyappa and Dasappa. In that partition, plaint ‘A’ schedule property was allotted to the share of Gaviyappa, plaint ‘B’ schedule property was allotted to the share of Dasappa and

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M.F.A.No.6682/2017 C/w M.F.A.No.6681/2017

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remaining 1 acre 19 guntas was allotted to the share of Siddarangaiah;

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ii) Father of defendant No.3 for himself and as minor guardian of defendant No.3 executed the mortgage deed dated 25.05.1965 in favour of Kurisiddaiah. On the same day Dasappa executed another mortgage deed in favour of the same Kurisiddaiah in respect of their share i.e. plaint ‘B’ schedule property. In those documents they have admitted that they have acquired the said properties in the family partition. Thereafter, all along the parties were enjoying the properties according to their shares;

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iii) The defendants behind the back of the plaintiffs got some revenue entries effected. On the basis of such revenue entries, defendant No.3 executed gift deed dated 21.10.2015 in respect of entire suit schedule ‘C’ property. By such documents, names of defendant Nos.4 and 5 were entered in the revenue records. Based on such revenue entries and the gift deed, defendant Nos.4 and 5 filed O.S.No.17/2016 before Senior Civil Judge, Nelamangala against defendant Nos.2 and 6 for

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M.F.A.No.6682/2017 C/w M.F.A.No.6681/2017

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declaration of their title etc. Similarly, defendant No.5 filed O.S.No.405/2016 before Senior Civil Judge, Tumkur against defendant Nos.3 and 4 for partition and defendant Nos.2 to 6 filed O.S.No.371/2016 before Senior Civil Judge, Tumkur against defendant No.3 for partition;

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iv) The said suits were collusive. In such collusive suit, they entered into collusive compromise and obtained compromise decrees in favour of defendant Nos.4 and 5 in respect of Survey No.59/1 including plaint schedule ‘A’ and ‘B’ properties. The said decree does not bind the plaintiffs. Even the revenue entries were all illegal. On the basis of such entry and the revenue entries, the defendants are trying to alienate the suit schedule properties and interfering with possession of the suit schedule properties.

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In the suit plaintiffs sought the following reliefs:

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i) Declaration that plaintiff Nos.1 to 7 are absolute owners and in possession of plaint ‘A’ schedule properties;

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M.F.A.No.6682/2017 C/w M.F.A.No.6681/2017

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ii) Plaintiff No.8 is the absolute owner in possession and enjoyment of plaint ‘B’ schedule property;

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iii) Declaration that the gift deed dated 21.10.2015 executed by defendant No.3 in favour of defendant Nos.4 and 5 is null and void and does not bind the plaintiffs;

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iv) The judgment and decree in O.S.No.17/2016 does not bind them and for permanent injunction in respect of plaint schedule ‘A’ and ‘B’ properties.

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In the suit, the plaintiffs filed I.A.No.1 seeking temporary injunction against defendant Nos.4 and 5 against alienation of suit schedule ‘C’ property.

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Plaintiff Nos.1 to 7 filed I.A.No.2 seeking temporary injunction against defendant Nos.2 to 6 to restrain them from interfering with their enjoyment of plaint schedule ‘A’ property.

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Plaintiff No.8 filed I.A.No.3 seeking temporary

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injunction against defendant Nos.2 to 6 to restrain them

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M.F.A.No.6682/2017 C/w M.F.A.No.6681/2017

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from interfering with their possession of plaint schedule ‘B’ property.

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Defendant Nos.4 and 5 alone contested the

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suit and applications by filing written statement and statement of objections. Their defence is as follows:

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i) All the allegations of the plaintiffs regarding title to the properties and possession were disputed;

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ii) Plaint schedule ‘C’ property measuring 4 acres 33 guntas in Sy.No.59/1 was self-acquired property of Siddarangaiah S/o Huccharangaiah @ Doddarangaiah. On his death his son Gangaiah and after the death of Gangaiah his children i.e., defendant Nos.2 and 6 and one Nagarajaiah became absolute owner of the property by succession. Accordingly the revenue entries were effected;

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iii) Defendant No.3 as the absolute owner of the property gifted the same to defendant Nos.4 and 5 under the registered gift deed dated 21.10.2015;

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iv) Since there was dispute between the family members, O.S.Nos.17/2016, 405/2016 and 371/2016

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M.F.A.No.6682/2017 C/w M.F.A.No.6681/2017

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were filed and later parties duly compromised the same. The plaintiffs cannot question those compromise decrees;

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v) The plaintiffs have not questioned the revenue entries;

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vi) The suit and applications are vexatious, therefore, sought for dismissal of the suit and applications.

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The trial Court on hearing both side, by the impugned common order dated 24.07.2017 allowed IA No.1 and granted temporary injunction against the defendant Nos. 4 and 5 restraining them from alienating suit schedule ‘C’ property. The trial Court rejected IA Nos.2 and 3 on the ground that the plaintiffs have failed to make out prima-facie case.

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Defendant Nos.4 and 5 have not challenged

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the order under IA No.1. Therefore that order has attained finality. Plaintiff Nos.1 to 8 have preferred the above appeals challenging the order on IA Nos.2 and 3 as aforesaid.

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M.F.A.No.6682/2017 C/w M.F.A.No.6681/2017

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Sri A.V.Gangadharappa, learned Counsel for

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the plaintiffs reiterating the plaintiffs’ case seeks to assail the impugned order of the trial Court on the following grounds:-

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i) Though voluminous records including certified

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copy of the mortgage deed dated 25.05.1965 and the revenue entries up to 2009 were produced, the trial Court did not take pain to refer to that;

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ii) They were all old documents which show the title and possession of the plaintiffs and have presumptive value;

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iii) The trial Court overlooked such admission in the mortgage deeds of 1965 and Section 18 of the Indian Evidence Act, 1872;

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iv) Subsequent mutation entries, the gift deeds, suits and compromise decrees between the defendants and their siblings are collusive and do not bind plaintiffs. The orders suffer perversity, arbitrariness and capriciousness.

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M.F.A.No.6682/2017 C/w M.F.A.No.6681/2017

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Per contra, Sri V.B Siddaramaiah, learned

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Counsel for defendant Nos.2 and 6 and Sri H.V.Shivaram, learned counsel for defendant Nos.4 and 5 seek to justify

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the impugned order of the trial Court on the following grounds:-

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i) The mortgage deeds dated 25.05.1965 were all denied;

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ii) The property was self acquired property of Siddarangaiah and on his death devolved on his heirs. Therefore, they are entitled to deal with the same;

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iii) While entering the name of defendant No.3 in revenue the records, notice was served on plaintiff No.8 and father of plaintiff Nos.1 to 7. They are signatory to the notice and they did not object such entries;

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iv) Based on his title, defendant No.3 executed gift deed in favour of his sons. Defendant Nos.4 and 5 have also dealt with the property as absolute owners. On 13.10.2015 defendant No.3 mortgaged property to Canara Bank;

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v) The Record of Rights, Tax paid receipts were in favour of defendant Nos.3 to 5. Under Section 133 of

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M.F.A.No.6682/2017 C/w M.F.A.No.6681/2017

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Karnataka Land Revenue Act those entries carry presumptive value which were unchallenged. That shows the possession of defendant Nos.3 to 5. Therefore the trial Court was justified in declining to grant injunction in favour of the plaintiffs.

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The relief of injunction being the discretionary relief, it is true that this Court cannot interfere with such order unless that order suffers vice of perversity, capriciousness and arbitrariness. Perversity means overlooking the materials produced before it and not adhering to the cardinal principles of law in considering the application for injunction.

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It is settled principle of law that to seek temporary injunction the applicants have to satisfy the following three aspects :-

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i) They have the prima-facie case. Prima-facie case means prima-facie case of their right and injury to such right and that the suit is not vexatious, but there is a case to go for trial;

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M.F.A.No.6682/2017 C/w M.F.A.No.6681/2017

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ii) The balance of convenience lies in favour of

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the applicants;

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iii) If temporary injunction is not granted the applicants will be put to irreparable injury.

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In the light of the above legal position, this Court has to see whether the plaintiffs satisfy that they have prima-facie case, balance of convenience lies in their favour and if injunction is not granted, they will put to irreparable injury.

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So far as prima-facie case, the relationship between the parties is not disputed. The plaintiffs claimed that ‘C’ schedule property i.e. the entire Sy.No.59/1 measuring 4 acre 17 guntas belong to propositus of Huccharangaiah @ Doddarangaiah. He further contented that in the partition between his 3 sons plaint ‘A’ schedule property had fallen to the share of Gaviyappa and ‘B’ schedule property fallen to the share of Dasappa and remaining 1 acre 19 guntas had fallen to the share of Siddarangaiah.

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M.F.A.No.6682/2017 C/w M.F.A.No.6681/2017

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Defendant Nos.1, 2 and 6 did not file written statement or statement of objections to dispute the claim of the plaintiffs. Defendant Nos.3 to 5 claimed that the property was self acquired property of Siddarangaiah. But they did not state how Siddarangaiah acquired the property, whether by way of sale or gift or any other mode. To show that the suit schedule ‘C’ property was the ancestral property and that devolved on Siddarangaiah son of Huccharangaiah by partition, the plaintiffs relied on the admission said to have been made by his son Gangaiah in the registered mortgage deed dated 25.05.1965 in favour of one Kurisiddaiah.

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The certified copies of those registered mortgage deeds were produced. In those documents there is a recital to the effect that the property belonged to their father and in partition 1 acre 19 guntas was allotted to the share of each of the sons. Such admission of the predecessor of defendant Nos.2 to 6 made as long back as in the year 1965 has some probative value in view of Section 18 to 21 of the Indian Evidence Act.

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M.F.A.No.6682/2017 C/w M.F.A.No.6681/2017

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The plaintiffs also produced the record of rights of Sy.No.59/1 for the years 1968-69 to 1972-73 wherein the name of eldest son Siddarangaiah was shown in column No.9. They also produced record of rights of the suit schedule ‘C’ property for the years 1973-74 to 2000-01. Those records show that during the said period the names of all the three sons i.e., Siddarangaiah, Gaviyappa and Dasappa were shown in the cultivator’s column. The plaintiffs claimed that during the year 2000-01 while preparing computerized records of rights the name of Dassappa and Gaviyappa were omitted from the records of rights. However, again during the year 2008-2009 the names of Dasappa, Siddarangaiah, and Gaviyappa were shown in column No.12 of the record of rights as the cultivators.

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During the year 2010-2011 for the first time the name of defendant No.3 i.e., Hucharangaiah came to be entered in the revenue records. The said mutation register extract shows that defendant No.3 applied for mutating his name as heir of Gangaiah and his name was

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M.F.A.No.6682/2017 C/w M.F.A.No.6681/2017

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entered to the entire 4 acres 17 guntas. The village accountant claims to have conducted enquiry and entered the name of defendant No.3 by way of inheritance to the entire 4 acres 17 guntas.

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It was contended that the signatures found on the notice under Form No.21 are the signatures of plaintiff No.2, father of plaintiff Nos.1, 3 to 7 and plaintiff No.8. They are disputed facts. The presumption under Section 133 of the Karnataka Land Revenue Act, 1964 is available to the entry which is lawfully substituted. The revenue entries did not refer to the registered mortgage deeds dated 25.05.1965.

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Though Section 128(1) of the Karnataka Land Revenue Act, 1964 casts an obligation on the person acquiring a right as an occupant, owner, mortgagee etc of a property to report that, the second proviso to the same section exempts such holder acquiring right by virtue of a registered document. In such cases it is mandatory for the Sub-Registrar to send the intimation to the concerned

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M.F.A.No.6682/2017 C/w M.F.A.No.6681/2017

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revenue authorities and the revenue authorities to make the entries in that regard.

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28. Apart from that the mortgage deed executed

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by defendant No.3 and his father as well as the mortgage deed executed by Dasappa state that the revenue entries were standing in the name of elder son Siddarangaiah. All along from 1973-74 to 2010-11/2008-09 the names of all the three sons of Hucchrangaiah @ Doddarangaiah were found in the record of rights. If the suit schedule property was the self acquired property of Siddarangaiah alone, why the names of other two sons were entered is not explained by the defendants. Since the suit is filed for declaration, the rights of the parties have to be decided on a trial.

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In the light of the registered documents of the

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year 1965 and revenue records standing in the name of all the three sons up to 2000 and again in 2008-09, the subsequent entry of name of defendant No.3 in 2010 alone cannot be accepted as evidence of title or possession. In the light of such documents and

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M.F.A.No.6682/2017 C/w M.F.A.No.6681/2017

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implications of the admissions, it cannot be said that the plaintiffs’ case is vexatious. The plaintiffs have made out a case to go for trial.

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The trial Court on the same set of facts grants temporary injunction on IA.I considering that there is prima facie case and contrary to that rejects IA Nos.2 and 3. The trial Court did not advert itself to the aforesaid documents, admissions of the predecessor in title of defendants No.2 to 6 in such documents, the legal implications of such admissions. Therefore, the order of the trial Court in rejecting IA Nos.2 and 3 suffers perversity.

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So far as the balance of convenience, the aforesaid documents and the circumstance show that prior to mortgaging schedule ‘A’ property, the same was in possession of Gaviyappa and the remaining property was in the name of Dasappa. Dasappa had not mortgaged the property.

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M.F.A.No.6682/2017 C/w M.F.A.No.6681/2017

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The aforesaid documents show that Gaviyappa was in possession of ‘A’ schedule property and he had not mortgaged the same. So far as Dasappa till he mortgaged the property he was in possession. However, thereafter from 1973-74 onwards his name appeared in the record of rights of suit schedule ‘C’ property along with other two brothers. The plaintiffs have made a statement in the plaint that though the mortgage is redeemed, the said document is lost and they are not in a position to produce the same.

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The records show that soon after defendant No.3 getting his name entered in the record of rights executed the gift deeds in favour of defendant Nos.4 and 5. On the basis of such gift deeds defendants No.2 to 6 interse ventured to file various suits viz., O.S.No.17/2016, 405/2016 and 371/2016 almost simultaneously before different Courts. Soon after filing the suits, in a hot haste they entered into compromise and got compromise decrees for declaration of their title. The bonafides of such suits and the compromise also call

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M.F.A.No.6682/2017 C/w M.F.A.No.6681/2017

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for examination in the trial. Since the plaintiffs were not parties to the suit, prima-facie such decrees do not bind them.

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Whether the possession was restored to the mortgagers is a question that shall be decided on trial. If the plaintiffs fail to produce such mortgage redemption deed they may have to implead the mortgagee or his successor to the suit. The trial Court has to examine that. Pending the suit, if the plaintiffs are dispossessed, they will be put to irreparable injury. Therefore, balance of convenience lies in their favour.

¶205

Apart from that the trial Court while considering IA No.1 has already held the aspects of prima facie case balance of convenience and irreparable injury in favour of the plaintiffs. Having held so, the trial Court acted in arbitrary manner in rejecting IA Nos.2 and 3 in contrast to its own finding on IA No.1. Therefore, the impugned order calls for interference of this Court. The appeals are allowed.

¶206

M.F.A.No.6682/2017 C/w M.F.A.No.6681/2017

¶207

¶208

The impugned order of the trial Court dated 24.07.2017 passed on IA Nos.2 and 3 is hereby set aside. IA No.2 filed by plaintiff Nos.1 to 7 for temporary injunction is hereby allowed. Defendant Nos.2 to 6 are hereby restrained from interfering with the peaceful possession of ‘A’ schedule property till the disposal of the suit.

¶209

IA No.3 filed by plaintiff No.8 for temporary injunction against defendant Nos.2 to 6 is allowed. Defendant Nos.2 to 6 are hereby restrained from interfering with plaintiff No.8’s peaceful possession of ‘B’ schedule property till the disposal of the suit.

¶210

The above said order do not operate against the mortgagee. The appeals are disposed of accordingly.

¶211

Learned counsel for the contesting respondent submits that already issues are framed, therefore, directions may be given to the trial Court for early disposal of the suit.

¶212

M.F.A.No.6682/2017 C/w M.F.A.No.6681/2017

¶213

¶214

Having regard to the above submission, the trial Court is hereby requested to dispose of the suit as expeditiously as possible. Both parties shall cooperate for

¶215

the disposal of the suits.

¶216

Sd/JUDGE

¶217

KSR/AKC

Smt. Jayalakshmi v. Smt. Chikkarangamma

Case brief

What is this about?

What did the court decide?

Smt. Jayalakshmi v. Smt. Chikkarangamma

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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