Allowed

Mr. M. Venkateshwara Rao v. Mr. Srinivasa

Karnataka HC16 Jan 2021WP/52584/2019

Case brief

AI extract

What is this about?

The High Court of Karnataka quashed an appellate order that set aside a temporary injunction restraining alienation in a partition suit. The court held that the appellant failed to demonstrate the error apparent on the record, conditional relief since the suit remains pending.

What did the court decide?

The writ of certiorari quashing the impugned order dated 16.3.2019 and the I.A. under Order XXXIX Rules 1 & 2 CPC concerning items 8 and 14 of the suit property was allowed.

Mr. M. Venkateshwara Rao Vs Mr. Srinivasa — Partition | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF JANUARY, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT

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WRIT PETITION NO. 52584 OF 2019 (GM-CPC)

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BETWEEN:

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MR. M VENKATESHWARA RAO, S/O LATE VENKATARATHANAM, AGE 64 YEARS, R/O NO.29-19-24/2, FLAT NO.3A, SRI MAHESHWARI RESIDENCY, DORNAKAL ROAD, SURYARAOPET, VIJAYAWADA – 52002.

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…PETITIONER

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(BY SRI. S M CHANDRASHEKAR, SENIOR COUNSEL FOR SRI. BHARATH BASU G B, ADVOCATE)

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AND:

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MR. SRINIVASA, S/O LATE RAMAIAH, AGE 43 YEARS,

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MR. DODDEGOWDA, S/O LATE RAMAIAH, AGE 41 YEARS,

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RESPONDENTS NO.1 & 2 ARE R/AT NO.123/30, SAMTHRUPTI NILAYA, MARUTHI LAYOUT, KETHAGANAHALLI ROAD, BEEDADI, RAMANAGAR – 562 159.

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MR. NARAYANASWAMY, S/O LATE RAMAIAH, AGE 50 YEARS,

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MR. PANDURANGA, S/O LATE RAMAIAH, AGE 56 YEARS,

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MRS. VENKATAMMA,

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D/O LATE DODDANANJEGOWDA, AGE 40 YEARS,

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MRS. NAGAVENI, D/O LATE DODDANANJEGOWDA, AGE 40 YEARS,

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MR. MUNEGOWDA, S/O LATE DODDANANJEGOWDA, AGE 38 YEARS,

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MR. RAVI, S/O LATE DODDANANJEGOWDA, AGE 34 YEARS,

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RESPONDENTS NO.3 TO 8 ARE R/AT BEERASANDRA VILLAGE, KUNDALA HOBLI, DEVANAHALLI VILLAGE – 562 110.

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MR. CHETHAN M, S/O LATE MUNIVEERAPPA, AGE 26 YEARS,

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CHAITRA, S/O LATE MUNIVEERAPPA, AGE 26 YEARS,

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VINODH KUMAR, S/O LATE MUNIVEERAPPA, AGE 22 YEARS,

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RESPONDENTS NO.9 TO 11 ARE R/AT BEERASANDRA VILLAGE, KUNDANA HOBLI,

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DEVANAHALLI VILLAGE – 562 110.

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LAKSHMAMMA, D/O LATE DODDA SONNAPPA, AGE 85 YEARS,

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ANJINAMMA,

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D/O LATE DODDA SONNAPPA, AGE 67 YEARS,

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MUNIRATHNAMMA, D/O LATE DODDA SONNAPPA, AGE 64 YEARS,

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MUNITHAYAMMA, D/O LATE DODDA SONNAPPA, AGE 62 YEARS,

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VEEREGOWDA, S/O LATE DODDA SONNAPPA, AGE 60 YEARS,

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MUNINANJAMMA, D/O LATE DODDA SONNAPPA, AGE 48 YEARS,

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SONNEGOWDA, S/O LATE DODDA SONNAPPA, AGE 46 YEARS,

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ASWATHAMMA, D/O LATE CHIKKA SONNAPPA, W/O KEMPANNA @ NARAYANAPP, AGE 64 YEARS,

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RESPONDENTS 12 TO 19 ARE R/O ATTIBELE VILLAGE, SULIBERE HOBLI, HOSAKOTE TALUK-560 067.

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SONNEMARIYAMMA, D/O LATE CHIKKA SONNAPPA, W/O CHIKKAMUNIYAPPA, AGE 62 YEARS, R/O HOSAPETE VILLAGE, JANGAMAKOTE HOBLI, SHIDLAGATTA TALUK – 562 105.

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RATHNAMMA, D/O LATE CHIKKASONNAPPA, W/O SEENAPPA, AGE 58 YEARS, R/O HOSA NALLUR VILLAGE, CHANNARAYAPATNA VILLAGE, DEVANAHALLI TALUK – 562 110.

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KRISHNAPPA,

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S/O LATE CHIKKASONNAPPA, SINCE DEAD BY HIS LRS.

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NAVEEN K,

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D/O LATE KRISHNAPPA, W/O PRABHU, AGE 26 YEARS,

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SMT. NANDHINI, D/O LATE KRISHNAPPA, W/O PRABHU, AGE 26 YEARS,

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RESPONDENTS NO.21 & 22 ARE R/O SHIVAPURA GRAMA, KASABA HOBLI, DODDABALLAPURA TALUK – 560 037.

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NAGARAJU, S/O LATE CHIKKASONNAPPA, AGE 53 YEARS,

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DYAVAMMA, W/O LATE MUNIYAPPAM AGE 75 YEARS,

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CHIKKANANJEGOWDA, S/O LATE MUNIYAPPA, SINCE DEAD BY HIS LRS

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CHANDRAMMA, W/O LATE CHIKKANANJEGOWDA, AGE 47 YEARS,

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JAGADEESH, S/O LATE CHIKKANANJEGOWDA, AGE 28 YEARS,

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HARISHA, S/O LATE CHIKKANANJEGOWDA, AGE 26 YEARS,

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RESPONDENTS 24 TO 28 ARE R/O BEERASANDRA VILLAGE, KUNDANA HOBLI, DEVANAHALLI TALUK – 562 110.

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YASHODAMMA, W/O LATE VEEREGOWDA, AGE 50 YEARS,

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SANTHOSH, S/O LATE VEEREGOWDA,

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AGE 29 YEARS,

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SWETHA, D/O LATE VEEREGOWDA, AGE 26 YEARS,

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RENUKAMMA, D/O LATE VEEREGOWDA, AGE 35 YEARS,

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VINAY, S/O LATE VEEREGOWDA, AGE 23 YEARS,

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VIKRAM, S/O LATE VEEREGOWDA, AGE 21 YEARS,

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ANNAPURANA, D/O LATE RAMAIAH, AGE 28 YEARS,

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RESPONDENTS NO.29 TO 35 ARE R/O BEERASANDRA VILLAGE, KUNDANA HOBLI, DEVANAHALLI TALUK – 562 110.

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NARAYANAPPA, S/O BYATAPPA, AGE 63 YEARS, R/O NAVARATHNA AGRAHARA, SADAHALLI POST, JALA HOBLI, BENGALURU NORTH TALUK – 560 001.

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THE SPECIAL LAND ACQUISITION OFFICER, KIADB, THIMMAIAH TOWER, 3^RD FLOOR, GANDHINAGAR – 560 009.

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THE SPECIAL LAND ACQUISTION OFFICER, NATIONAL HIGHWAY AUTHORITY OF INDIA, KUNIGAL SITE OFFICE AT NELAMANGALA, BENGALURU RURAL DISTRICT – 560 066.

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…RESPONDENTS

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(R1-R7, R24-R27, R29-R30, R31-R36 ARE SERVED & UNREPRESENTED;

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BY SRI. M S VISWANATHA, ADVOCATE FOR R8; SRI. S P GANDHI, ADVOCATE FOR R12, R15, R18 & R19; SRI. B V SABARAD, ADVOCATE FOR R37 & R38;

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V.C.O DATED 16.12.2020 R9-R11, R13,R14,R16,R17,R24, R25-R30, R33 & R34 ARE DISPENSED WITH;

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SRI. PRITHVI N RAJ, ADVOCATE FOR R21; V.C.O DATED 11/1/2021 NOTICE TO R22,R23 & R32 DISPENSED WITH)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 16.03.2019 PASSED BY THE V ADDL. DISTRICT AND SESSIONS JUDGE, DEVANAHALLI IN M.A.NO.15006/2018, PRODUCED AT ANNX-A AS ILLEGAL.

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THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY THROUGH VIDEO CONFERENCE, THE COURT MADE THE FOLLOWING:

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ORDER

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Petitioner being the 29^th defendant in a suit for partition & separate possession of several properties in

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O.S.No.216/2008, is knocking at the doors of writ court for

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assailing the order dated 16.3.2019, a copy whereof is at Annexure-A, whereby the learned V Addl. District Judge, Devanahalli, having favoured respondent-defendants’ appeal in M.A.No.15006/2018, has set-aside the order dated 17.4.2018 by which a temporary injunctive relief granted by the trial Judge was discontinued in respect of Item Nos.8 & 14 of the suit property.

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After service of notice, the contesting respondents

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having entered appearance through their counsel, resist the Writ petition making submission in justification of the

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impugned order and the reasons on which it has been structured.

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Having heard the learned counsel for the parties

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and having perused the petition papers, this court is inclined to grant conditional indulgence in the matter as under and for the following reasons:

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(a) The suit is for partition & separate possession of several properties as already mentioned above; the learned trial Judge had granted exparte temporary protection which later came to be discontinued as a result of dismissal of the application filed u/o XXXIX Rules 1 & 2 of CPC, 1908; the said order having put in appeal in M.A.No.15006/2018, came to be set at naught and the injunctive order restraining alienation was consequently restored by the Appellate Judge which is the subject matter of challenge herein.

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(b) The petitioner herein has ante litem bought item Nos.8 & 14 of the suit properties vide registered sale deeds dated 6.5.2005 & 28.9.2006 from defendant Nos.13, 14 & 15 and the said sales have been

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confirmed by defendant Nos.9, 10, 11, 13, 14, 15, 18, 24, 26, 27, 28, 29, 30, 31, 32, 33 and 34, as asserted by learned Sr. Advocate appearing for the petitioner and therefore, it can safely be assumed that as against the sellers and affirmers of the sales in question arguably, the petitioner has got the title; presumably this was the reason why this court vide order dated 10.1.2020 had permitted him to take up development project in re the property in question by way of conversion or otherwise of course subject to outcome of the suit as the case may be.

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(c) The circumstances that resulted into grant of the aforesaid interim order as asserted by the learned Sr. Advocate for the petitioner, are not much denied by the contesting respondents herein; learned Sr. Advocate is more than justified in his submission that there is a huge lot of other properties and therefore, the interest of the contesting respondents can be taken care of subsequent to the possible decree for partition by working out equities.

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(d) The above apart, the learned Judge of the Appellate

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Court below could not have interfered with the order

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of the learned trial Judge who had considered all

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aspects of the matter whilst rescinding the order of temporary injunction; it is a settled position of law that the appellant has to show not only that the order in challenge is wrong but it was unsustainable too; this approach has not been adopted by the learned Judge in treating the appeal of the contesting respondents and that the same constitutes an error apparent on the face of the record; even otherwise, justice of the case warrants that the impugned order be set at naught, conditionally as specified herein below.

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In the above circumstances, this Writ Petition succeeds; a writ of certiorari issues quashing the impugned order and consequently, the application in I.A.No.1 filed u/o XXXIX Rules 1 & 2 of CPC, 1908, stands dismissed to the extent the same concerns item Nos.8 & 14 of the suit schedule property and subject to outcome of the suit.

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It is open to the petitioner to develop and deal with the property in question subject to the condition that any development, alienation or encumbrance of the said

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property shall be subject to the decree to be passed in the suit; further any alienation of the subject property or any interest therein by way of conveyance or otherwise shall specifically mention about the pendency of the suit and the gist of this judgment as well.

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It hardly needs to be stated that petitioner and others may plead equity in FDP or such other proceeding so that whatever he has bought may be possibly retained, in accordance with law.

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No costs.

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Sd/JUDGE

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cbc

Mr. M. Venkateshwara Rao v. Mr. Srinivasa

Case brief

What is this about?

What did the court decide?

Mr. M. Venkateshwara Rao v. Mr. Srinivasa

Case brief

What is this about?

What did the court decide?

What the court decided

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