Partly allowed

Sri Venkatappa K G v. J Manjunath

Karnataka HC13 Nov 2024MFA/1579/2024

Case brief

AI extract

What is this about?

The High Court allowed one appeal and dismissed another. It held that the trial Court erred in rejecting the prayer to restrain alienation of the suit property as it required a full trial on title disputes. Relief was granted to prevent alienation, while dismissal of possession prayers was confirmed due to lack of prima facie possession evidence.

What did the court decide?

Defendant restrained from alienating the suit schedule property till disposal of suit; Trial Court to dispose within one year.

Sri Venkatappa K G Vs J Manjunath — Partition | Karnataka HC (2024)

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NC: 2024:KHC:46224 MFA No. 1579 of 2024 C/W MFA No. 1584 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH MISCELLANEOUS FIRST APPEAL NO.1579 OF 2024 (CPC) C/W MISCELLANEOUS FIRST APPEAL NO. 1584 OF 2024

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IN MFA No. 1579/2024

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BETWEEN:

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SRI VENKATAPPA K G S/O LATE PUTTANNA K G AGED ABOUT 87 YEARS, RESIDENT OF G HANUMANAHALLI VILLAGE, SHIVANAHALLI POST, KASABA HOBLI, KANAKAPURA TALUK RAMANAGARA DISTRICT

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…APPELLANT

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(BY SRI. KASHINATH J.D., ADVOCATE)

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AND:

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Digitally signed by REKHA R Location: High Court of Karnataka

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J MANJUNATH S/O H L JOGIREDDY AGED ABOUT 48 YEARS, RESIDING AT HOUSE NO.33, CHIKKAADUGODI 2ND MAIN ROAD, D R C POST BENGALURU-560029

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SMT BHARGAVI D/O LATE PRABHAKAR K G AGED ABOUT 37 YEARS, RESIDING AT NO.118, 2ND CROSS, J C LAYOUT, TEACHERS COLONY, KANAKAPURA TOWN RAMANAGARA DISTRICT-562117

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SMT SHRUTHI P D/O LATE PRABHAKAR K G AGED ABOUT 33 YEARS, RESIDING AT NO.118, 2ND CROSS, J C LAYOUT, TEACHERS COLONY, KANAKAPURA TOWN RAMANAGARA DISTRICT-562117

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THE TAHSILDAR KANAKAPURA TALUK KANAKAPURA RAMANAGARA DISTRICT-562117

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…RESPONDENTS

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(BY SRI. RAVISHANKAR S., ADVOCATE FOR C/R1 R2 AND R3 ARE SERVED AND UNREPRESENTED SRI. GOPAL KRISHNA SOODI, AGA FOR R4)

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THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 08.1.2024 PASSED ON I.A. NO. II IN O.S.NO. 59/2023 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, KANAKAPURA, REJECTING I.A. NO.II FILED UNDER ORDER XXXIX RULES 1 AND 2 READ WITH SECTION 151 OF CPC.

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IN MFA NO. 1584/2024

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BETWEEN:

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SRI VENKTAPPA K G S/O LATE PUTTANNA K G AGED ABOUT 87 YEARS, RESIDENT OF G HANUMANAHALLI VILLAGE, SHIVANAHALLI POST, KASABA HOBLI, KANAKAPURA TALUK RAMANAGARA DISTRICT

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...APPELLANT

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(BY SRI. KASHINATH J.D., ADVOCATE)

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AND:

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J MANJUNATH S/O H L JOGIREDDY AGED ABOUT 48 YEARS, RESIDING AT HOUSE NO.33, CHIKKAADUGODI 2^ND MAIN ROAD, D R C POST BENGALURU-560029

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SMT BHARGAVI D/O LATE PRABHAKAR K G AGED ABOUT 37 YEARS,

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SMT SHRUTHI P D/O LATE PRABHAKAR K G AGED ABOUT 33 YEARS, R-1 AND R-2 ARE R/AT NO.118, 2^ND CROSS, J C LAYOUT, TEACHERS COLONY, KANAKAPURA TOWN RAMANAGARA DISTRICT-562117

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THE TAHSILDAR KANAKAPURA TALUK KANAKAPURA RAMANAGARA DISTRICT-562117

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...RESPONDENTS

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(BY SRI. RAVISHANKAR S., ADVOCATE FOR C/R1 R3 ARE SERVED AND UNREPRESENTED SRI. GOPAL KRISHNA SOODI, AGA FOR R4 VIDE ORDER DATED 19.06.2024, NOTICE TO R2 HELD SUFFICIENT)

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THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) READ WITH SECTION 151 OF CPC, AGAINST THE ORDER DATED 08.01.2024 PASSED ON I.A.NO.1 IN OS.NO.59/2023 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, KANAKAPURA, REJECTING THE I.A.NO.1 THE FILED UNDER ORDER 39 RULE 1 AND 2 READ WITH SECTION 151 OF CPC.

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THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE H.P.SANDESH

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ORAL JUDGMENT

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Heard learned counsel for appellant and also learned counsel appearing for respondents.

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These two appeals are filed against the rejection of I.A.Nos.I and II filed under Order XXXIX Rule 1 and 2 r/w Section 151 C.P.C, wherein prayed to restrain the defendants from interfering with peaceful possession and enjoyment of the suit schedule property and also not alienate the property till the disposal of the suit and trial Court rejected both the applications and hence these two appeals are filed.

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The main case of the plaintiff before the trial Court is that the property belongs to the joint family and it is an ancestral property and there was a partition in the year 1961 i.e., 21.09.1961 and the suit schedule property was fallen to the share of plaintiff and no extent is

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mentioned but in allotment of share particularly in favour of this petitioner Sy.No.117 is specifically mentioned. It is also stated in the partition deed with regard to the tenancy claim made by the others and learned counsel contend that subsequent to partition, tenancy claim was considered and property No.117 was returned to the family, but the same was mutated in the name of Alamelamma, wife of Puttanna, who is the propositor of the family and subsequently K.G.Prabhakar, father of respondents and brother of plaintiff got the property in his favour and got the sale deed. Subsequently when K.G.Prabhakar passed

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away his wife executed the documents in favour of defendant No.1. The same is challenged before the trial Court by filing a suit seeking relief of declaration and also contend that plaintiff is in possession of the property and also contend that if any property is further sold, it would create multiple proceedings and sought for interim order praying to protect the possession of the property as well as restraining the defendant from interfering with possession and enjoyment of the property and also

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restraining the defendant from alienating the property during the pendency of the suit.

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The defendant appeared and filed objections to those I.As, contending that the defendant is the absolute owner in possession of the property by virtue of sale deed dated 05.05.2007 executed by defendant No.1. Defendant No.1 contend that the mother of defendant Nos.2 and 3 executed the sale deed in favour of defendant No.1 and K.G.Prabhakar is the absolute owner and peaceful possession of suit schedule property and after his death his wife Sudha executed sale deed in favour of defendant No.1. The assertion of the plaintiff that the suit schedule property was fallen to the share in family partition is denied and contend that plaintiff has no right, title, interest over the property, but trying to interfere with the possession and defendant was not made party in the proceedings before Assistant Commissioner and plaintiff also not made out any prima facie case and hence prayed the Court to reject the application.

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The trial Court having considered the pleadings of both the parties and also taken note of the submission made by the plaintiff that the property fallen to the share of plaintiff in terms of partition deed dated 21.09.1961 and also the contention of the defendant that the trial Court taken note of the fact that plaintiff is the son of Puttanna and Alamelamma. Father of defendant Nos.2 and 3 by name K.G.Prabhakar is one of the brother of the plaintiff and he is no more. The mother of defendant Nos.2 and 3 by name Sudha, who is vendor of the suit schedule property executed the sale deed in favour of defendant No.1.

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The trial Court having considered the relationship between the parties as well right of parties is concerned and also taken note of the partition deed dated 21.09.1961 since claim was made by the plaintiff that property Sy.No.117 was fallen to the share of the plaintiff but there were proceedings of the Government, in which the suit schedule property and other properties were taken

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over by the Government. The mutation extracts produced by the plaintiffs discloses that the Government returned those properties to the original owners and at that time as per statement of mother of plaintiff i.e., Alamelamma, mutation was effected in the name of brother of plaintiff by name K.G.Prabhakar and RTC was in his name and also taken note of the fact that sale deed was executed by said Sudha in favour of defendant No.1.

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However, in paragraph No.14 the trial Court, it comes to the conclusion that suit schedule property was taken over by Government and vested with it. Thereafter it was came to the name of Alamelamma and revenue records are entered in the name of K.G.Prabhakar and also an observation is made that when once the land vests with the Government, validity of the partition deed dated 21.09.1961 is a question to be considered at the time of trial and at this stage plaintiff has not made out any prima facie material with regard to his possession and also only photographs are produced and photographs cannot be

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relied by the Court with regard to possession is concerned for suit schedule property and rejected the same.

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Being aggrieved by the said order passed by

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the trial Court, learned counsel for appellant would vehemently contend that there was a partition in the family property bearing Sy.No.117 allotted in favour plaintiff/appellant and also it is not in dispute that property originally belongs to Puttanna. It is also not in dispute that the partition deed is registered. Learned counsel would submit that when the entire property is vested to the share of plaintiff and thereafter when determination was made with regard to tenancy is concerned in respect of 3 acres 2 guntas to the family and consistently revenue entries are made in the name of Alamelamma and also other son K.G.Prabhakar who got mutated in collision with the revenue people and subsequently it was sold. But the fact is that the property was allotted in favour of plaintiff in registered partition deed, the remaining property already vested with the plaintiff family and not with

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Alamelamma and any document is created and the same may not confirm the title either in favour of K.G.Prabhakar or in favour of Alamelamma and also they are not having any right over the suit schedule property.

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Learned counsel for the appellant also relied upon the decision in Kizhakke Vattakandiyil Madhavan (Dead) Thr. LRs vs. Thiyyurkunnath Meethal Janaki and Ors¹ and brought to the notice of the Court that if any property is transferred, the very person who is having the right to transfer the property must have right, but if the vendor is not having any right to sell the property, the question of conveying any right does not arise. Learned counsel also vehemently contend that when the property was restored back to the family, it will go to the plaintiff only, since there was registered document of partition, instead of created document and got transferred. The learned counsel would contend that suit is filed for relief of declaration, the question of challenging the release deed

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1 2024 SCC Online SC 517

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does not arise. In fact the trial Court also taken note of the document of partition deed and the same itself is prima facie case in favour of plaintiff and the same has not been considered.

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Per contra learned counsel for respondent would contend that defendant No.1 had purchased the property from defendant No.2, the plaintiff's mother and also revenue records standing in the name of vendor and also contend that sale was made in the year 2007 and though challenge made in the revenue entries is concerned and property was sold in the year 2007, the possession was delivered in 2022. Plaintiff has kept quite and filed suit in 2023 and also counsel would contend that no prima facie is made out before the trial Court as on the date of filing that plaintiff is in possession of the property. Hence, the trial Court has rightly come to the conclusion that based on the photographs possession cannot be ascertained and assert that all the properties are standing in the name of defendant subsequent to the purchasing of

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the property and also learned counsel has brought to the notice of the Court that the objections was filed and in the very objection statement it is stated that they are not going to make any alienation. However the trial Court rejected both the application and does not require any interference by this Court.

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Learned counsel appearing for the State submits that matter requires full fledged trial since there is serious title dispute and in this case unless the trial takes place, the issue with regard to the possession cannot be decided.

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Having heard the learned counsel for the appellant and also learned counsel appearing for respondent and also considering the material on record particularly the registered document of partition deed dated 21.09.1961, it is not in dispute that survey number i.e., Sy.No.117 is mentioned, but total extent is not mentioned in the partition deed, which is allotted in favour of the plaintiff. There is no dispute with regard to said fact

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is concerned. It is also not in dispute that in respect of partition deed is concerned, there is reference that there are some claims made by the tenants and also reference is also made and the same is to be ascertained and claim has to be contested as to the determination of the claim made by the tenant.

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It is also not in dispute that the proceedings were taken place and subsequently revenue entry entering the same in favour of Alamelamma also, the property was returned to the family, but the document was made in favour of Alamelamma. It is also to take note that the schedule property Sy.No.117 is not allotted to Alamelamma and the same is allotted in favour of plaintiff in the partition deed. It is also important to note that subsequently entry made in the revenue records in the name of Alamelamma and the same also got transferred in the name of K.G.Prabhakar i.e., only based on the statement of Alamelamma. Subsequently wife of K.G.Prabhakar executed sale deed in favour of defendant

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No.1, when the suit is filed for declaration and questioned the right, title and the same is sold in favour of defendant No.1.

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The trial Court ought to have taken note of the

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said fact and particularly ought to have taken note of the partition deed, which was registered wherein Sy.No.117 was allotted in favour of plaintiff. The trial Court has committed error in coming to the conclusion that plaintiff has not made out any prima facie case and merely making entry in Mutation Register and transfer of the same in favour of vendor Sudha i.e, wife of K.G.Prabhakar and the same will not confirm any right and it is also a settled law that revenue entry cannot be basis for the title.

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However, in paragraph No.14 made an observation that plaintiff has not made out any prima facie on the ground that the property is vested in the Government and validity of partition deed dated 21.09.1961 is a question to be considered and that the trial Court come to conclusion the validity of the partition

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deed has to be considered at the time of considering final arguments and matter requires trial hence, ought to have granted relief not to alienate the suit schedule property and the same leads to multiplicity of the proceedings and fails to exercise discretion in favour of plaintiff when the relief sought for in the suit is regarding transfer of title is considered.

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The very contention of the plaintiff that very property was allotted in the partition deed and subsequently sale is made and the validity has to be considered by the trial Court at the time of trial, but committed error in dismissing I.A.No.2 in passing the order instead of restraining the defendants not to alienate. However, the trial Court has taken note of the material on record only photographs are produced by the plaintiff with regard to possession is concerned and I do not find any error committed by the trial Court in coming to the conclusion that based on the photographs cannot decide the issue of possession is concerned and on the date of

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filing of the suit, no documents are produced before the trial Court that plaintiff has been in possession of the property and hence, the question of granting relief of temporary injunction restraining the defendants from interfering with the peaceful possession, unless prima facie case is made out that the plaintiff has been in possession of the property.

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Hence, I do not find any error committed by the trial Court in rejecting I.A.No.I. It is also important to note that respondent counsel also brought to the notice of this Court that in the statement of objections itself, the respondent given an undertaking that he will not alienate the property and the statement of objections is also not taken note by the trial Court while passing the order when I.A was filed restraining the defendant to alienate the property and having taken note of the said fact this court consider that it requires interference. Considering the material placed on record, the matter requires full fledged trial and with regard to the sale made by the wife of the

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said K.G.Prabhakar based on the revenue entry has to be

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decided before the trial Court and issue of title is also seriously disputed which is the matter requires trial. In

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view of the above discussion, I pass the following:

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ORDER

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(i) MFA.No.1584/2024 is dismissed. The order passed by the trial Court rejecting I.A.No.I is confirmed.

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(ii) MFA.No.1579/2024 is allowed. The order passed by the trial Court rejecting I.A.No.II is set aside and consequently I.A.No.II is allowed.

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(iii) The defendant/respondent is restrained from alienating the suit schedule property till the disposal of the suit.

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(iv) The suit is of the year 2023 and hence, the trial Court is directed to dispose of the suit within a period of one year from today.

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NC: 2024:KHC:46224 MFA No. 1579 of 2024 C/W MFA No. 1584 of 2024

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(v) Both appellant and respondent and their respective counsel are directed to assist the trial Court in disposal of the suit within a time bound period of one year.

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SD/(H.P.SANDESH) JUDGE

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List No.: 1 Sl No.: 35

Sri Venkatappa K G v. J Manjunath

Case brief

What is this about?

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Sri Venkatappa K G v. J Manjunath

Case brief

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