Dismissed

Mrs Bargavi K N v. Mr Santhosh N

Karnataka HC1 Jun 2023MFA/6990/2022

Case brief

AI extract

What is this about?

The Karnataka High Court dismissed an appeal against the trial Court's refusal to grant a temporary injunction restraining the defendant from harvesting crops. Relying on precedents, the Court held that an injunction is inopposable between coparceners absent proof of waste or loss, as rendering accounts balances interests.

What did the court decide?

Appeal dismissed; parties directed to co-operate for early disposal of the suit.

Mrs Bargavi K N Vs Mr Santhosh N — Partition | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 01^ST DAY OF JUNE, 2023

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BEFORE

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THE HON’BLE MR. JUSTICE RAVI V. HOSMANI

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MISCELLANEOUS FIRST APPEAL NO.6990 OF 2022 (CPC)

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BETWEEN:

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MRS. BARGAVI K.N., AGED ABOUT 31 YEARS, D/O K.NALLA THANDAPANI @ K.NALLA DANDAPANI, W/O B.SANTHOSH, # BARGAVI NILAYA, GROUND FLOOR, RAJENDRA NAGAR (ENTRANCE), SHIVAMOGGA.

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…APPELLANT

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[BY SRI K.R.KRISHNAMURTHY, ADVOCATE (PH) ]

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AND:

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MR. SANTHOSH N., AGED ABOUT 38 YEARS, S/O K. NALLA THANDAPANI @ K. NALLA DANDAPANI, R/O SANTHOSH NILAYA, 7^TH CROSS, RAVINDAR NAGAR, SHIVAMOGGA.

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…RESPONDENT

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[BY SRI. SHOWRI H.R., ADVOCATE (PH)]

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER 43 RULE 1(r) R/W SECTION 151 OF CPC., AGAINST THE ORDER DATED 06.09.2022 PASSED ON I.A.NO.1 AND 7 IN O.S.NO.41/2022 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND CJM., SHIVAMOGGA, REJECTING THE I.A.NO.1 THE FILED ORDER 39 RULE 1 AND 2 R/W SECTION 151 OF CPC AND ALLOWING THE I.A.NO.7 FILED UNDER ORDER XXXIX RULE 5 R/W SECTION 151 OF CPC.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 13.12.2022, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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JUDGMENT

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Challenging order dated 06.09.2022 passed by Principal

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Senior Civil Judge and CJM., Shivamogga, on I.As.no.1 and 7 in O.S.no.41/2022, this appeal is filed.

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Appellant herein was plaintiff, while respondent was defendant.

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O.S.no.41/2022 was filed seeking for decree of partition of plaintiff’s half share in all schedule ‘A’ and ‘B’ properties; for direction to defendant to furnish accounts, income derive and for share in mesne profits and also for permanent injunction restraining defendant from entering into cheni agreement with third person to reap crop or reap and sell areca-nut without consent of plaintiff etc. Schedule ‘A’ included immovable properties comprising of residential sites, agricultural land (including areca-nut and coconut garden land), shop premises etc.; while schedule ‘B’ movable properties included gold and silver ornaments/article etc.

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In said suit, plaintiff filed I.A.no.I under Order XXXIX Rules 1 and 2 of CPC, seeking following prayer:

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"to RESTRAIN The defendant from entering into any cheni agreement with third persons to reap the crop OR reap and selling the crop of the suit schedule arecanut garden lands without the presence and written consent of the plaintiff by an Order OF AD-INTERIM EX PARTE TEMPORARY INJUNCTION till the disposal of the suit on allowing this I.A. with cost in the ends of justice."

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In affidavit filed in support of said application, it was stated that Sri K.Nalla Thandapani @ K.Nalla Dandapani during his lifetime had acquired items no.1 to 11 of suit properties out of his earnings, therefore they were his self-acquired properties. It was further stated that said Sri K.Nalla Thandapani died intestate leaving behind plaintiff and defendant as his only Class-I heirs, therefore, they were having half share each in suit properties.

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It was further stated that Smt.Thilothame was possessing items no.12 to 16 of suit schedule and other land in Sy.no.6/1P1 of Kadadakatte village, measuring 32 guntas, Sy.no.69/P2, measuring 02 acres 24 guntas and Sy.no.73/1 measuring 12.5 guntas of Jedikatte village. It was stated that she

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bequeathed said lands in favour of plaintiff under registered Will dated 03.12.2015 and after her death plaintiff had succeeded to said property which were her exclusive property. It was also stated that insofar as items no.12 to 16, there was no testament, therefore plaintiff and defendant were entitled for half share each in said properties.

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Insofar as items no.17 to 25, it was stated that they were ancestral properties and as there was no partition, both plaintiff and defendant entitled for half share each. It was stated that said properties fetch annual income of atleast Rs.1,50,000/-. It was further asserted that items no.26 and 27 were under adverse possession of their mother - Smt.N.Thilothame, but, after her death though plaintiff and defendant were in joint possession, defendant alone had harvested crop and was not sharing income with plaintiff.

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It was further stated that during lifetime of parents due to misbehavior of defendant and his wife including assault, their father Sri K.Nalla Thandapani had lodged complaint with Jayanagar Police Station, Shivamogga. Defendant was later sent out of house in July, 2019, since then defendant was living away from parents.

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It was stated that at time of death of parents, there were standing crops and arecanut in deposit apart from cash deposits in relation to which P & SC no.3/2021 was filed before II Additional Senior Civil Judge, Shivamogga. With mutual consent, Succession Certificate was issued in joint names of plaintiff and defendant. Thereafter, they got transferred said amount to their names by sharing it.

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It was further alleged that defendant was collecting rental income in respect of items no.13, 17 and 14 apart from cash of Rs.54,78,460/- held by Sri. K.Nalla Thandapani at time of his death. Thereafter, when plaintiff and defendant were supposed to apply for change of katha in respect of suit properties and defendant had obtained plaintiff’s signatures on some blank papers and misusing same had got katha changed in respect of item no.10 and 11 of suit schedule to his individual name. Upon realizing same when plaintiff sought explanation, defendant showed hostile attitude. It is further stated that defendant did not furnish about income from crop harvested by him till August 2021. Even advise of elders did not yield result and defendant began misusing income for his lascivious life style, plaintiff was constrained to file suit.

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It was stated that from August, 2021 defendant had reaped all crops and despite earning Rs.95,00,000/- from items no.18 to 25, he had not rendered accounts or shared income with plaintiff. It was stated that if defendant was permitted to continue cultivation and reap crops, it would be impossible for plaintiff to recover her share and therefore, she had sought for ad-interim ex parte temporary injunction.

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On 28.02.2022, trial Court granted ex-parte ad-interim injunction against defendant or anybody claiming through him from entering into cheni agreement, to reap and sell crops in schedule properties mentioned in I.A.no.I until appearance of defendant.

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Upon service of suit summons and after entering appearance, defendant filed written statement and also I.A.no.VII to vacate/discharge temporary injunction granted in favour of plaintiff.

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In affidavit filed in support of I.A.no.VII, it was stated that properties available in their family were not partitioned nor distrusted between plaintiff and defendant were partitioned under

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deed of settlement executed on 26.11.2020 in presence of Sri Sharath - Chartered Accountant and other witnesses. Properties allotted to share of parties were mentioned in Annexure-B to written statement. In view of said deed of settlement, plaintiff was estopped from filing suit despite securing more share in properties than defendant. It was alleged that some properties were shown twice, once by their earlier number and thereafter by referring to re-assigned survey number.

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It was stated that in presence of their parents all gold and silver ornaments were got distributed by way of partition in year 2012-13 and respective shares of said ornaments were kept separately. It was further stated in affidavit that he along with plaintiff filed P & SC no.3/2021 seeking for an order in respect of succession certificate and obtained same by giving consent to each other. It was further stated that their father had gifted a residential house to plaintiff situated inward no.3, 6^th cross, Rajendra nagara, Shviamogga and plaintiff is getting monthly rent of Rs.40,000/-. It was stated that suit filed by plaintiff is false and frivolous and devoid of merits.

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Based on contentions urged trial Court framed following

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points for consideration:

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Whether the plaintiff has made out a prima facie case in her favour?

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Whether the plaintiff will be put to irreparable loss?

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Whether the balance of convenience lies in favour of the plaintiff?

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Whether the defendant has shown grounds to vacate the order of exparte temporary injunction?

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5. What order?

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Sri K.R. Krishnamurthy, learned counsel for plaintiff

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submitted that present appeal was filed by plaintiff-applicant, against order of trial Court rejecting I.A.no.I and allowing I.A.no.VII.

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It was submitted that plaintiff had filed suit seeking relief of partition of properties belonging to parents of plaintiff and

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defendant. In said plaint, plaintiff had explained in detail income potential from suit properties. Since disposal of suit was likely to consume time and parties would not be in position to keep approximate accurate account of mesne profits, present application was filed and same was to reduce burden on parties to maintain proper and true accounts of income derived.

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It was submitted that schedule in I.A.no.I included 13 properties, out of which items no.1 to 11 were self-acquired properties; while items no.12 and 13 were ancestral properties. In paragraph no.11 of affidavit filed in support of I.A.no.I, plaintiff had explained in detail about income from properties. In paragraph no.9 of plaint, plaintiff had narrated about income from standing crops and value of arecanut kept for sale in MAMCOS etc. In paragraph no.12 of affidavit filed in support of I.A.no.VII, defendant was falsely claiming exclusive right over schedule properties and income derived therefrom.

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It was submitted that trial Court answered point no.1 by holding that plaintiff had established prima facie case even though there was dispute about settlement deed dated 26.11.2020. But

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while answering points no.2 to 4, it relies on same by describing it as family arrangement. It was submitted that only reason assigned while passing impugned order was that though reliefs sought for was to restrain defendant from entering into cheni agreement or reap and sell arecanut crop without consent and presence of plaintiff, there was no pleading about properties being subject to waste, damage or alienation. It also stated that plaintiff had failed to seek for rendering of accounts and plaintiff had also not sought for mesne profits. It also observed that if relief sought were granted, same would delay harvest and sale of crop causing loss to both parties and as it was not in dispute that defendant was carrying on cultivation, injunction as sought for could not be granted.

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It was submitted that assumption by trial Court about relief sought had led to passing of impugned order. It was submitted that plaintiff had not sought for any prayer, which would delay or restrict right of defendant in dealing with mesne profits. Entire focus of plaintiff was on establishing mechanism for rendering of true accounts. Since basic assumption about relief

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sought by plaintiff was erroneous, impugned order was rendered perverse if not capricious.

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On other hand, Sri H.R.Showri, learned counsel for defendant submitted that impugned order passed by trial Court was in exercise of discretionary powers. Therefore, scope for interference was minimal. It was submitted that relief claimed was to restrain defendant from dealing with agricultural produce perishable in nature 'without presence and written consent of plaintiff'. It was submitted that such condition while dealing with harvesting and sale of crop would be severely counter productive, if not impossible to monitor.

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It was submitted that defendant had very clearly pleaded about partition by way of settlement between parties. By way of counter claim, defendant had sought for declaration based on settlement and alternatively for partition in all suit properties and also properties shown in schedule to written statement. Until decree, since plaintiff and defendant would be coparceners i.e. joint owners as per plaintiff's version, injunction could be sought only in case of threat of property being subjected to waste, damage or

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destruction. Since none of averments supported said aspect, trial Court rightly dismissed plaintiff's application.

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It was submitted that plaintiff's application in I.A.no.II seeking for permission to cultivate properties mentioned in schedule therein during pendency of suit came to be dismissed on 06.09.2022. W.P.no.20481/2022 filed against rejection of said application came to be dismissed with observation that there was some distribution of assets/income and inequities must await trial. Thus plaintiff's attempt to disturb defendant's cultivation of suit properties had failed. Prayer sought in present application would put severely affect defendant's cultivation of suit properties. Hence, dismissal would be justified.

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It was also submitted that in objections filed, defendant had highlighted that grant of ex-parte ad-interim injunction had caused delay in harvesting and there was reduction in income. It was submitted that in order to balance interests of plaintiff, trial Court had directed defendant to render accounts and same would sufficiently protect plaintiff's interest. Therefore, on above grounds learned counsel sought for dismissal of appeal.

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Heard learned counsel, perused impugned order and

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records.

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From above submissions, point that would arise for consideration herein would be:

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"Whether impugned order passed by trial Court on I.A.no.I filed under Order XXXIX Rule 1 and 2 of CPC and I.A.no.VII filed under Order XXXIX Rule 4 of CPC calls for interference?"

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It is not in dispute that plaintiff and defendant are brother and sister and suit properties belonged to their parents. While plaintiff contends that her mother had executed a Will bequeathing her properties in favour of plaintiff and as plaintiff was Class-I heir in respect of suit properties entitled for equal share with defendant and further as suit properties were yielding high income, prayer sought in I.A.no.I was to enable plaintiff to have knowledge about income derived from suit properties, there was no justification for trial Court to have rejected said application.

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On other hand, it is case of defendant that there was already partition or settlement of properties between plaintiff and

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defendant by consent under deed of settlement dated 26.11.2020 and due to severance of status plaintiff was not entitled for direction as sought for which would cause interference in cultivation of agricultural properties.

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While passing impugned order, trial Court has observed that since application for injunction was between coparceners, injunction could be granted only in case of threat or loss of property due to waste, damage or alienation. Neither of which was pleaded and established by plaintiff.

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Further, High Court of Punjab and Haryana in Bachan Singh vs. Swaran Singh¹ and High Court of Madras in S. Venkatesh Babu vs. Swetha² , have held that a co-owner cannot seek injunction against cultivation and harvesting by another co-owner who was in exclusive possession.

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Moreover, injunction sought is onerous in nature, requiring continuous compliance by defendant and monitoring by Court, which would dissuade Court from granting injunction. While

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1 2000 SCC OnLine P&H 233

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2 2010 SCC OnLine Mad. 3266

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rejecting application in instant case, Court has issued directions to defendant to render accounts of mesne profits. Same would sufficiently balance interests of both parties.

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Even this Court, while dismissing writ petition filed against rejection of I.A.no.II has observed that parties would be better served after trial, taking into account fact that both parties have received share of income earlier.

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Lastly, Hon'ble Supreme Court in Mohd. Mehtab Khan

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and Ors. vs. Khushnuma Ibrahim and Ors.³ , has held that scope of interference in an appeal under Order XLIII Rule 1 of C.P.C., against discretionary order, would be limited. If order suffered from palpable error or was untenable, there could be interference, but if view taken by trial Court was one of possible views, there could be no interference.

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Though impugned order does not call for interference, as a measure of balancing interests, it would be appropriate to issue directions for early disposal of suit.

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3 2013 (9) SCC 221

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Hence, I pass following:

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ORDER

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Appeal is dismissed.

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However, both parties are directed to co-operate for early disposal of suit. Trial Court is directed not to grant unnecessary adjournments and proceed with trial in accordance with law.

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Sd/JUDGE

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GRD

Mrs Bargavi K N v. Mr Santhosh N

Case brief

What is this about?

What did the court decide?

Mrs Bargavi K N v. Mr Santhosh N

Case brief

What is this about?

What did the court decide?

What the court decided

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