Disposed

Smt Nagamma @ Nagarathna v. Ramaiah @ Meke Ramaiah

Karnataka HC15 Mar 2023MFA/2962/2022

Case brief

AI extract

What is this about?

In a first appeal against the dismissal of injunction applications restraining alienation of suit properties, the High Court disposed of the matter by modifying the impugned order to specifically restrain respondents from alienating items under a Joint Development Agreement.

What did the court decide?

Respondents directed not to alienate, encumber, or create third party rights over their shares in the suit properties pending suit disposal; trial directed for specific date.

Smt Nagamma @ Nagarathna Vs Ramaiah @ Meke Ramaiah — Partition | Karnataka HC (2023)

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MFA No. 2962 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF MARCH, 2023

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BEFORE

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THE HON’BLE MR JUSTICE S.R.KRISHNA KUMAR

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MISCELLANEOUS FIRST APPEAL NO.2962 OF 2022 (CPC)

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BETWEEN:

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SMT. NAGAMMA @ NAGARATHNA W/O. B.M. NAGARAJ (KEB), D/O. RAMAIAH @ MEKE RAMAIAH, AGED ABOUT 59 YEARS, R/AT NO.13, BHAGYALAKSHMI NILAYA, 8^TH CROSS, RUKMINI NAGAR, NAGASANDRA POST, BENGALURU – 560 073.

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SOUBHAGYA

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Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA

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W/O. B.V. NARYANAPPA, D/O. RAMAIAH @ MEKE RAMAIAH, AGED ABOUT 55 YEARS, R/AT NO.50, BELMAR ESTATE, RUKMINI NAGAR, NAGASANDRA POST, BENGALURU – 560 073.

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(BY SRI. VIJAY KUMAR T., ADVOCATE)

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... APPELLANTS

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AND:

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RAMAIAH @ MEKE RAMAIAH SINCE DEAD BY Lrs.

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KEMPAMMA D/O. RAMAIAH @ MEKE RAMAIAH, W/O. CHANAPPA, AGED ABOUT 76 YEARS,

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MFA No. 2962 of 2022

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R/AT LAKKENAHALLI VILLAGE, SONDEKOPPA POST, BENGALURU – 562 130.

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M.R. VISHWANATH S/O. RAMAIAH @ MEKE RAMAIAH, AGED ABOUT 64 YEARS,

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PUTTAMMA D/O. RAMAIAH @ MEKE RAMAIAH, W/O. SIDDAPPA (BMTC CONDUCTOR), AGED ABOUT 68 YEARS, R/AT BYADARAHALLI, BEHIND GOVERNMENT SCHOOL, VISHWANEEDAM POST, BENGALURU – 560 091.

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AMMAIAH W/O. LATE DEVARAJU, AGED ABOUT 54 YEARS,

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HANUMEGOWDA S/O. LATE DEVARAJU, AGED 36 YEARS,

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CHAITHRA D/O. LATE DEVARAJU, AGED 34 YEARS,

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RAMESH M.R. S/O. RAMAIAH @ MEKE RAMAIAH, AGED 62 YEARS,

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THE RESPONDENT NOS.4 TO 7 ARE R/AT MARAGONDANAHALLI VILLAGE, KENGERI HOBLI, SULIKERE POST BENGALURU SOUTH TALUK – 560 060.

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SMT. VIJAYA W/O. M. VISHWANATH, AGED ABOUT 59 YEARS, R/AT 34/29, 6^TH CROSS

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3 - MFA No. 2962 of 2022

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8^TH MAIN ROAD, DWARAKANAGAR, BSK 3^RD STAGE, BENGALURU – 560 085.

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SRI K. HANUMANTHEGOWDA S/O. LATE KAPANI GOWDA, AGED ABOUT 59 YEARS, R/AT NO.48, 3^RD CROSS, 20^TH CROSS ROAD, GIRINAGARA ‘T’ BLOCK, BSK 3^RD STAGE, BENGALURU – 560 085.

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SRI K. GIRISH S/O. LATE KAPANIGOWDA AGED ABOUT 52 YEARS, R/AT NO.44, 13^TH MAIN ROAD, A.G.S. LAYOUT, BENGALURU – 560 061.

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... RESPONDENTS

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(BY SRI K.K. VASANTH, ADVOCATE FOR R-1, R-2, R-4 TO R-7; SRI HARSHA KUMAR GOWDA H.R., ADVOCATE FOR R-3; V/O. DATED 01.04.2022 NOTICE TO R-8 TO R-10 IS D/W)

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THIS MFA IS FILED UNDER ORDER 43 RULE 1(R) R/W SECTION 151 OF CPC, AGAINST THE ORDER DATED14.03.2022 PASSED ON I.A.NO.1 IN OS.NO.1261/2012 ON THE FILE OF THE V ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, DISMISSING THE I.A.NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 R/W SECTION 151 OF CPC.

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

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MFA No. 2962 of 2022

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JUDGMENT

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This appeal by the plaintiffs in O.S.No.1261/2012 is directed against the impugned order dated 14.03.2022 passed on I.A.Nos.I, II and III filed under Order XXXIX Rules 1 and 2 of CPC by the V Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru whereby, the said applications filed by the appellants/plaintiffs for temporary injunction restraining the respondents/defendants from alienating or encumbering the suit schedule properties and cutting standing trees and excavating sand from the suit schedule properties and mortgaging or leasing the suit schedule properties in favour of third parties, pending disposal of the suit were dismissed by the Trial Court.

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Heard the learned counsel for the appellants and learned counsel for respondent Nos.1, 2, 4 and 7 and perused the material on records.

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The material on record discloses that the appellants/plaintiffs instituted the aforesaid suit for partition and separate possession of the alleged shares in the suit schedule properties and for other reliefs.

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MFA No. 2962 of 2022

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In the said suit, respondent Nos.2, 4, 5, 6 and 7 were arraigned as defendant Nos.3, 5, 6, 7 and 8 and they are contesting the suit before the Trial Court. The appellants/plaintiffs filed the aforesaid applications under Order XXXIX Rules 1 and 2 of CPC for order of temporary injunction and the said applications having been opposed by the aforesaid respondent Nos.2, 4, 5, 6 and 7, the Trial Court has proceeded to pass the impugned order dismissing the applications, aggrieved by which, the appellants/plaintiffs are before this Court by way of present appeal.

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Though several contentions urged by the learned counsel for respective parties, it is seen that on 25.01.2022 i.e. prior to the impugned order dated 14/03/2022, respondent Nos.2, 4, 5, 6 and 7 (defendant Nos.3, 5, 6, 7 and 8) filed a memo of undertaking before the Trial Court, which reads as under:

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“ The Defendant No.3, 5, 6, 7, 8 above named humbly submits and states as follows:

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1. These Defendants submits that the plaintiffs have filed the above suit against the defendants for the relief of partition and separate possession of suit schedule properties and also sought for other reliefs. These Defendants further submits that these defendants have filed

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MFA No. 2962 of 2022

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their detailed written statement denying the plaint averments and took specific defence that the plaintiffs are not entitled to any relief as claimed in the plaint and the plaintiffs relinquished their rights and took their share long back. Hence these defendants sought for dismissal of the suit.

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2. these Defendants submits that the plaintiffs have filed IA.No.1 under order 39 Rule 1 & 2 along with the suit and sought for interim relief restraining the defendants, their agents from alienating or encumbering the suit schedule property in favour of third parties. further regarding the said interim application is concerned, these Defendants No.3, 5 to 8 undertakes that till disposal of the above suit, these defendants will not alienate any of the schedule property.

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3. These Defendants further submits that during the pendency of the above suit the plaintiffs have filed other two IA’s under order 39 rule 1 and 2 and sought for interim order restraining the defendants from mortgaging/releasing the schedule properties in favour of third parties and also restraining the defendants from not to cut the standing trees and excavating sand from the schedule properties in favour of third parties. Regarding these two IA’s are concerned, these defendants prior to filing of the above suit have started business of hollow block factory in Sy.No.9/4 i.e. Item No.1 of the IA Schedule and has constructed shed prior to filing of the suit. The Defendant No.8 is running the factory, in that regard the defendants are producing the

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MFA No. 2962 of 2022

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photographs to show the existence of the hollow block factory. Hence the question of mortgaging and leasing the schedule property to third parties does not arise and now due to COVID-19 the said hollow block factory is closed since two years and the Defendant No.8 is not doing any business.

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4. These defendants submits that Item No.2 of the IA schedule in Sy.No.30/4, the Defendant NO.8 constructed poultry farm and animal husbandry (sheep) farm for their livelihood and these defendants shall not cut the standing trees and shall not excavate the sand in any of the suit schedule property . Hence this memo

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WHEREFORE the Defendant No.3, 5 to 8 above named prays that this Hon’ble Court be pleased to dispose off the above three IA’s as stated above and proceed further in the above case in the interest of justice. ”

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Taking note of the said memo, this Court passed an order in this appeal on 01.04.2022, which reads as under:

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“Issue notice to the respondents.

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Counsel for the appellants insists on passing an adinterim order as per I.A.1/22. He also brings to my notice that defendants 3 and 5 to 8 have filed a memo in the court below undertaking that they would not alienate the suit property till disposal of the suit. It appears that the court below has not noticed this memo while passing interim order. Therefore it is made clear that in view of this memo,

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MFA No. 2962 of 2022

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the appellant need not have any apprehension that the suit properties would be disposed of. Hence I.A.1/2022 will be considered at the time of admission after appearance of the respondents.

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Memo is filed by the appellants’ counsel seeking dispensation of notice to respondent no.8 to 10. Accordingly issuance of notice to respondent no.8 to 10 is dispensed with.”

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The aforesaid order passed by this Court on

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01.04.2022 continues to remain in force even today.

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It is the grievance of the appellants that, despite the aforesaid undertaking filed by respondent Nos.2, 4, 5, 6 and 7 before the Trial Court, the said respondents subsequently entered into three Joint Development Agreements dated 28.02.2022 in respect of item Nos.9 to 13 of the suit schedule properties and the appellants apprehend that the said respondents would alienate their shares in the said properties in terms of the Joint Development Agreements and as such, there is urgency in the matter.

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Per contra, learned counsel for respondent Nos.1, 2, 4

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and 7 would support the impugned order passed by the Trial Court

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MFA No. 2962 of 2022

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and submits that there is no merit in the appeal and the same is liable to be dismissed.

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A perusal of the material on record, including the impugned orders will clearly indicate that there are several contentious issues urged and disputed/complicated questions of law and fact that arise for consideration between the parties in the suit, which would necessarily have to be decided only after a fullfledged trial. However, having regard to the undertaking given by respondent Nos.2, 4, 5, 6 and 7 dated 25.01.2022, which is noticed by this Court in its interim order dated 01.04.2022, without expressing any opinion on the merits/demerits of the rival contentions, I deem it just and appropriate to dispose of the appeal by modifying the impugned order and directing respondent Nos.2, 4, 5, 6 and 7 not to alienate, encumber or create third party rights over their 55% share in item Nos.9 to 13 of the suit schedule properties as per Joint Development Agreement dated 28.02.2022, till the disposal of the suit before the Trial Court. It is made clear that this order will not come in the way of the respondents or the developers proceeding further with the development of item Nos.9 to 13 of the suit schedule properties.

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10 -

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MFA No. 2962 of 2022

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In addition to above, all the respondents/defendants are

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also directed not to alienate, encumber or create third party rights over the remaining suit schedule properties, till the disposal of the suit.

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Since the Trial has already commenced in the suit, the Trial Court is directed to dispose of the matter as expeditiously as possible, at any rate on or before 30.06.2023.

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Subject to the aforesaid directions, the appeal stands disposed of.

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Sd/JUDGE

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MBM List No.: 1 Sl No.: 1

Smt Nagamma @ Nagarathna v. Ramaiah @ Meke Ramaiah

Case brief

What is this about?

What did the court decide?

Smt Nagamma @ Nagarathna v. Ramaiah @ Meke Ramaiah

Case brief

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What did the court decide?

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