Allowed

Smt. U. a. Sheela W/O Late Achyuth Rao v. Vikas S/O Shridhar Navale

Karnataka HC12 Nov 2024MFA/101285/2022

Case brief

AI extract

What is this about?

Appeal by defendants against dismissal of an interim injunction application seeking to restrain structural changes and demolition of joint family property. The High Court set aside the lower court order, granted a modified injunction subject to the partition suit outcome, and clarified that no party can claim equity from unauthorized development.

What did the court decide?

Temporary injunction granted restraining any development in the suit 'C' schedule property subject to the result of the pending suit; original injunction dismissed order set aside.

Smt. U. a. Sheela W/O Late Achyuth Rao Vs Vikas S/O Shridhar… — Partition | Karnataka HC (2024)

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NC: 2024:KHC-D:16532 MFA No. 101285 of 2022

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 12^TH DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE C.M. POONACHA

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MISCELLANEOUS FIRST APPEAL NO.101285 OF 2022 (CPC)

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BETWEEN:

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SMT. U. A. SHEELA W/O LATE ACHYUTH RAO, AGE: 78 YEARS, R/O: C/O. PUSHPA KESHAVA, SANKALPA MANI MANDIR, DIAMOND D BLOCK, 3^RD MAIN, LAXMIPURAM, MYSORE – 570 004.

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SMT. USHA N. RAO W/O. LATE NARAYAN RAO, AGE: 78 YEARS R/O: NO. 696/B1, OPPOSITE TO NANJAPPA HOSPITAL, KUVEMPU ROAD, SHIVVAMOGGA – 577 201.

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SMT. NARMADA W/O. BALACHANDRA RAO, AGE: 75 YEARS R/O: NO.30 MAREMMA GUDI CROSS, BEHIND COLLEGE HOSTEL, KABAGAL ROAD, BALLARI – 583 103.

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Digitally signed by SAROJA HANGARAKI Location: High Court of Karnataka

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SMT. MEENAKSHI W/O. ASHOK MAHINDRAKAR, AGE: 68 YEARS R/O: NO. 4-5, ASTAVINAYAK ARCADE, OPPOSITE TO D-MART, JULE SOLAPUR SOLAPUR – 413 001, STATE: MAHARASTRA.

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SMT. JYOTI M. GUJJAR W/O. MANJUNATH RAO, AGE: 54 YEARS R/O: NO.955/32, 1^ST CROSS, BSK 1^ST STAGE, 2^ND PHASE, OPPOSITE TO KANAKA COLLEGE, BENGALURU – 560 050.

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…APPELLANTS

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(BY SRI VIDYASHANKAR G. DALWAI, ADVOCATE FOR SRI GANAPATI M. BHAT, ADVOCATE)

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AND:

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VIKAS S/O. SHRIDHAR NAVALE, AGE: 47 YEARS, OCC: BUSINESS, R/O: FLAT NO.202, NEELA RESIDENCY, GANESH PARK, KALLUR LAYOUT, HOSUR HUBBALLI – 580 021, DIST: DHARWAD.

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SHRI NARAYAN GANGARAM NAVALE, AGE: 67 YEARS, OCC: BUSINESS, R/O: CTS-16/1, ASHIRWAD BUILDING, OPP. SINDHUR HOSPITAL, 1^ST CROSS, VIDYANAGAR, HUBBALLI – 580 021, DIST: DHARWAD.

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SHRI PANDURANG GANGARAM NAVALE, AGE: 64 YEARS, OCC: BUSINESS, R/O: CTS-16/1, ASHIWAD BUILDING, OPP. SINDHUR HOSPITAL, 1^ST CROSS, VIDYANAGAR, HUBBALLI – 580 021, DIST: DHARWAD.

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SHRI RAJENDRA GANGARAM NAVALE, AGE: 60 YEARS, OCC: BUSINESS, R/O: CTS-16/1, ASHIRWAD BUILDING, OPP. SINDHR HOSPITAL, 1^ST CROSS, VIDYANAGAR, HUBBALLI – 580 021.

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SHRI UMESH GANGARAM NAVALE, AGE: 58 YEARS, OCC: BUSINESS, R/O: CTS - 16/1, ASHIRWAD BUILDING, OPP. SINDHR HOSPITAL, 1^ST CROSS, VIDYANAGAR, HUBBALLI – 580 021.

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SMT. SWETANA UMESH NAVALE, AGE: 51 YEARS, OCC: BUSINESS, R/O: CTS-16/1, ASHIRWAD BUILDING, OPP. SINDHR HOSPITAL, 1^ST CROSS, VIDYANAGAR, HUBBALLI – 580 021.

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SMT. SUDHA W/O. PANDURANG NAVALE, AGE: 61 YEARS, OCC: HOUSEWIFE, R/O: CTS-16/1, ASHIRWAD BUILDING, OPP. SINDHR HOSPITAL, 1^ST CROSS, VIDYANAGAR, HUBBALLI – 580 021.

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SHRI TULAJAM GANGARAM NAVALE, AGE: 69 YEARS, OCC: BUSINESS, R/O: CTS NO.16/3, TULSI NIVAS, OPP. SINDHUR HOSPITAL, 1^ST CROSS, VIDYANAGAR, HUBBALLI – 580 021.

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SHRI SHANKAR GANGARAM NAVALE, AGE: 67 YEARS, OCC: BUSINESS, R/O: CTS-16/3, TULSI NIVAS, OPP. SINDHR HOSPITAL, 1^ST CROSS, VIDYANAGAR, HUBBALLI – 580 021.

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SHRI JAGANATH PRABHAKAR NAVALE, AGE: 65 YEARS, R/O: BUSINESS, R/O: CTS NO.16/3, TULSI NIVAS, OPP. SINDHUR HOSPITAL, 1^ST CROSS, VIDYANAGAR, HUBBALLI – 580 021, DIST: DHARWAD.

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SHRI NAGARAJ GANGARAM NAVALE, AGE: 61 YEARS, OCC: BUSINESS, R/O: CTS NO.16/3, TULSI NIVAS, OPP. SINDHUR HOSPITAL, 1^ST CROSS, VIDYANAGAR, HUBBALLI – 580 021, DIST: DHARWAD.

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…RESPONDENTS

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(BY SMT. MEERABAI, ADVOCATE FOR R1; NOTICE TO R4, R5, R6 ARE SERVED; NOTICE TO R2, R3, R7, R8, R9, R10, R11 ARE DISPENSED WITH)

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THIS MFA IS FILED U/O.43 RULE 1 READ WITH SECTION 104 OF THE CODE OF CIVIL PROCEDURE, 1908, SET ASIDE THE ORDER DATED 16.02.2022 ON I.A.NO.V FILED UNDER ORDER 39 RULE 01 AND 02 R/W SECTION 151 OF CPCP., PASSED BY THE COURT OF THE III ADDITIONAL SENIOR CIVIL JUDGE AND JMFC., HUBBALLI IN O.S.NO.403/2019 AND ALLOW I.A.NO.V FILED UNDER ORDER 39 RULE 01 AND 02 R/W SECTION 151 OF CPCP WHICH FILED ON THE FILE OF COUR OF THE III ADDITIONAL SENIOR CIVIL JUDGE AND JMFC., HUBBALLI IN O.S.NO.403/2019 AND ETC.,

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA)

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The present appeal is filed by the defendant Nos.11 to 15 challenging the order dated 16.02.2022 passed on I.A No.V filed under Order 39 Rule 1 and 2 R/w Section 151 of the Code of Civil Procedure, 1908¹ , in O.S No.403/2019 by the III Additional Senior Civil Judge & JMFC, Hubballi² .

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The relevant facts in brief leading to the present appeal are that the respondent No.1/plaintiff instituted a suit in O.S No.403/2019 seeking for partition, claiming 1/5^th share in the suit properties and for other reliefs. The said suit was contested by the defendants. The defendant

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Nos.11 to 15 filed I.A No.IV under Order 39 Rule 1 and 2 R/w Section 151 of the CPC to restrain the defendants and plaintiffs from alienating the suit properties and I.A No.V is also filed under Order 39 Rule 1 and 2 R/w Section 151 of

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the CPC for grant of ad interim order of temporary

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1 Hereinafter referred to as the ‘CPC’

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2 Hereinafter referred to as the ‘Trial Court’

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injunction for restraining the defendants and plaintiffs from changing any structure of the suit ‘C’ schedule properties. The said application was opposed by the plaintiffs. The Trial Court, by its order dated 16.02.2022, allowed I.A No.IV and dismissed I.A No.V and passed the following order:

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“The application No.IV filed U/o 39 Rule 1 and 2 of CPC by defendant No.11 to 15 is hereby allowed.

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The defendants and plaintiff are hereby restrained from alienating the suit schedule properties in any manner as prayed in the application till disposal of the suit.

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The application No.V filed U/o 39 Rule 1 and 2 of CPC by defendant No.11 to 15 is hereby dismissed.”

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Being aggrieved, the present appeal is filed by

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the defendant Nos.11 to 15, challenging the dismissal of I.A No.V.

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It is the vehement contention of the learned counsel for the appellants that the Trial Court having allowed I.A No.IV, erred in rejecting I.A No.V. It is further

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contended that the photographs produced demonstrated the carrying out of construction activity and having regard to the specific averments made in the affidavit accompanying I.A No.V, the relief sought for by the said application ought to have been favorably considered.

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It is forthcoming that the Trial Court while considering I.A No.V has recorded the following finding:

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“16] These defendants in their pleading of I.A No.5 submits that the plaintiff and defendants are changing the nature of suit schedule property. As discussed above, these defendants not filed any development agreement before this court. These defendants submitted photographs of the C schedule property. Even if consider that these defendants are having share in the suit schedule property, they will get it along with plaintiff and other defendants. Therefore, this court holds that at this juncture, these defendants not made out prima-facia case in I.A No.5. Therefore point No.1 holds in negative.

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17] Further, as stated above, the injunction order is equitable relief. As per the pleadings of the plaintiff and these defendants that they are joint owner of the suit schedule properties and they are joint possession of the same, under such

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NC: 2024:KHC-D:16532 MFA No. 101285 of 2022

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circumstances, injunction order cannot be granted against the joint owners.”

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(emphasis supplied)

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It is further relevant to note that the appellants

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has filed I.A No.V seeking for the following reliefs:

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“For the reasons sworn to in the accompanying affidavit, the Defendants No.11 to 15 humbly prays that this Hon’ble Court be pleased to grant ad-interim temporary injunction order for restraining the Defendants and plaintiff and their henchmen, agents, representatives from changing any structure of the suit schedule ‘C’ property till the disposal of this suit in the interest of justice and equity.”

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In the affidavit accompanying I.A No.V, the 15^th defendant has deposed that the plaintiff and defendant Nos.1 to 4 have approached the 15^th defendant and her sisters, who executed a Joint Development Agreement in favour of a developer to develop the suit schedule properties. It is further averred that the suit properties are Hindu Undivided Joint Family Properties and the said defendants being a Class-I legal heirs of Gangaram

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Navale, as her daughters, are entitled for an equal share in the suit schedule properties. That the suit having been filed initially by the plaintiffs against defendant Nos.1 to 4 and defendant Nos.11 to 15, subsequently impleaded themselves in the suit, which impleading application have been allowed. It is further deposed that the said defendant Nos.11 to 15 has attempted to secure the copies of the Joint Development Agreement. But the said agreement being an unregistered one and the said defendant having approached the developer and requested for a copy of the same, the said developer has refused to give a copy of the same. It is further specifically averred that the developer is making hectic efforts to demolish the building which is existing in the suit ‘C’ schedule property with an intention to construct a Multi-Storied Building to sell the prospective purchasers.

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It is further forthcoming that the defendant Nos.1 to 15 have filed a memo before the Trial Court and

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the photographs were produced, whereunder, it was demonstrated that demolition activity was being carried

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out in the suit ‘C’ schedule property. The Trial Court while considering I.A No.V has recorded a finding that the defendants have not produced any development agreement.

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It is pertinent to note that the

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appellants/defendant Nos.1 to 5 have given specific explanation for not having produced the development agreement vide the affidavit filed in support of the application, affidavit as has been noticed above.

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Further, the Trial Court by recording a finding that even if the defendants are having a share in the suit properties, they will get it along with the plaintiff and other defendant has held that the defendants have not made out a prima-facie case. Further, the Trial Court has held that since the plaintiffs and defendants are the joint owners of the suit property and in joint possession of the same, an order of injunction cannot be granted against the joint owner.

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It is relevant to note that the

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appellants/defendant Nos.11 to 15 has specifically averred

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that the suit ‘C’ schedule property has been contracted by the plaintiff and other defendants to be given to a developer for undertaking joint development construction. In support of the said averment, the defendant Nos.11 to 15 have also furnished photographs to demonstrate the demolishing activity being carried out in the suit ‘C’ schedule property. Hence it is clear that, in the event, an equitable order is not passed on I.A No.V and if the development is permitted to be carried out, the same will be prejudicial to the case of the defendant Nos.11 to 15. Hence, the order passed by the Trial Court rejecting I.A No.V is erroneous and liable to be interfered with.

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Having regard to the averments made in the affidavit accompanying I.A No.V as well as the photographs produced by the appellants before the Trial Court and in view of the finding recorded by the Trial Court that the plaintiffs and the defendants are the joint owners in joint possession of the suit property, it is just and proper that I.A No.V filed by the appellants before the Trial Court be disposed of by observing that any

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developments made in the suit ‘C’ schedule property shall be subject to the result of the suit and no party shall be entitled to claim equities by virtue of the said

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development.

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Hence, the following:

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ORDER

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a)The above appeal is allowed .

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b)The order dated 16.02.2022 passed on I.A No.V filed under Order 39 Rule 1 and 2 of the CPC in O.S No.403/2019 by the III Additional

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Senior Civil Judge & JMFC, Hubballi, is set aside.

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c) I.A No.V filed in O.S No.403/2019 on the

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file of III Additional Senior Civil Judge & JMFC, Hubballi, is partly allowed by holding that any development in the suit ‘C’ schedule property shall be subject to the result of the suit and the plaintiffs or the defendants or anyone claiming through/under them shall not be entitled to claim any equities as a

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result of the development made in the suit ‘C’ schedule property.

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d)The findings recorded herein are only for the purpose of consideration of I.A No.V and the Trial Court shall proceed further in the suit, uninfluenced by any of the observations made in this appeal.

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Sd/(C.M. POONACHA) JUDGE

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PMP CT-ASC List No.: 1 Sl No.: 35

Smt. U. a. Sheela W/O Late Achyuth Rao v. Vikas S/O Shridhar Navale

Case brief

What is this about?

What did the court decide?

Smt. U. a. Sheela W/O Late Achyuth Rao v. Vikas S/O Shridhar Navale

Case brief

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What did the court decide?

What the court decided

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