Disposed

Mrs Geetha Mani P Shetty v. Sri Ganesh Bangera

Karnataka HC5 Mar 2024MFA/2295/2023

Case brief

AI extract

What is this about?

The High Court rejected the appeal against the dismissal of an interim injunction application but imposed a mandatory status quo. While affirming the rejection of the full injunction based on lack of proof for a family arrangement, the Court restrained respondents from encumbering, transferring, or alienating the property until the main suit in O.S. No. 72/2023 is disposed of.

What did the court decide?

The appeal is dismissed; however, the Court restrains the respondents from encumbering, transferring, or alienating the suit property or disturbing possession until the main suit is disposed of.

Mrs Geetha Mani P Shetty Vs Sri Ganesh Bangera — Specific Performance | Karnataka HC (2024)

¶1

1 - NC: 2024:KHC:9319 MFA No. 2295 of 2023

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 5^TH DAY OF MARCH, 2024

¶4

BEFORE

¶5

THE HON'BLE MR JUSTICE R. NATARAJ

¶6

MISCELLANEOUS FIRST APPEAL NO. 2295 OF 2023 (CPC)

¶7

BETWEEN:

¶8

MRS. GEETHA MANI P. SHETTY W/O PADMANABHA B. SHETTY D/O M. SOMASHEKARA BANGERA AGED ABOUT 51 YEARS R/AT PRAKRUTHI, KUDRIPADAVU, KALLAMANDKURU VILLAGE, MANGALURU-574274

¶9

MRS. LATHA MANI HARISH W/O. C.G. HARISH D/O. M. SOMASHEKARA BANGERA AGED ABOUT 49 YEARS R/AT NO.9-150-7, VIVEKANANDA NAGAR PRAANTHYA, MASTHIKATTE, MOODABIDRI, DAKSHINA KANNADA DISTRICT-574197

¶10

Digitally signed by BS RAVIKUMAR Location: HIGH COURT OF KARNATAKA

¶11

MRS. LAILA MANI N. SHETTY W/O NUTHAN SHETTY D/O M. SOMASHEKARA SHETTY AGED ABOUT 47 YEARS R/AT NANDAGOKULA, PADUBAILU, KARNAD, MULKY-574154 DAKSHINA KANNADA DISTRICT.

¶12

…APPELLANTS

¶13

(BY SRI. RAJASHEKAR S., ADVOCATE)

¶14

AND:

¶15

SRI GANESH BANGERA S/O M. SOMASHEKARA BANGERA AGED ABOUT 47 YEARS R/AT SRI GANESH NIVAS

¶16

2 - NC: 2024:KHC:9319 MFA No. 2295 of 2023

¶17

BEJAI KAPIKAD MANGALURU-575004.

¶18

SANTOSH D'SOUZA S/O D. LAWRENCE D'SOUZA AGED ABOUT 50 YEARS R/AT KALPANA COTTAGE, KUDRIPADAVU POST, KALMUNDKAR, MODABIDRI TALUK, DAKSHINA KANNADA DISTRICT-574274.

¶19

…RESPONDENTS

¶20

(BY SRI. P.P.HEGDE, SENIOR ADVOCATE FOR RACHITHA RAJSHEKAR, ADVOCATE)

¶21

THIS MFA IS FILED UNDER SECTION 104 READ WITH ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 29.03.2023 PASSED ON I.A.NO.II IN OS.NO.72/2023 (OLD OS.NO.320/2022) ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, MOODIBIDIRI D.K., DISMISSING THE IA.NO.2 FILED UNDER ORDER 39 RULES 1 AND 2 READ WITH SECTION 151 OF CPC.

¶22

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

¶23

JUDGMENT

¶24

The plaintiff Nos.1, 2 & 3 in O.S.No.72/2023 on the file of

¶25

the Senior Civil Judge and JMFC, Moodbidri, Dakshina Kannada have filed this appeal challenging an order dated 29.03.2023, by which, their application (I.A.No.II) filed under Order XXXIX Rules 1 and 2 of Civil Procedure Code was rejected.

¶26

3 - NC: 2024:KHC:9319 MFA No. 2295 of 2023

¶27

Briefly stated the contentious facts are that the suit properties are land bearing Sy.No.140/6 and as per the saguvali chit Sy.No.140/2 measuring 2 acres 90 guntas of 'A' schedule property and 2 acres 20 guntas of 'B' schedule property situated at Kallamankuru village, Mangaluru Taluk. The plaintiffs claimed that the defendant No.2 had purchased 42 cents of land lying adjacent to schedule 'A" property and started interfering with the possession of the plaintiffs and their brother which compelled them to file O.S.No.4/2007 for perpetual injunction. The said suit was decreed and the defendant No.2 was restrained from interfering with the possession of the plaintiffs in the suit schedule properties. They contended that their father died on 21.10.2013 leaving behind a Will, in terms of which, 70 cents was given to the plaintiffs and 2 acres 20 cents was given to the defendant No.1. They contend that serious disputes arose between them which resulted in a family arrangement dated 01.06.2016, in terms of which, 70 cents of land which was given to plaintiffs under the Will was allotted to their share apart from 1/4^th share in the remaining properties. They alleged that they were demanding the defendant No.1 to divide the properties as per the family

¶28

¶29

NC: 2024:KHC:9319 MFA No. 2295 of 2023

¶30

arrangement dated 01.06.2016, but the defendant No.1 was postponing it, on one or the other ground. On 01.11.2022, the defendant No.2 tried to lay a fence around the suit 'B' schedule property and it was only then they came to know that the defendant No.1 had conveyed 02 acres 20 cents to the defendant No.2 based on the Will executed by their father. The plaintiffs therefore, sought for the partition and separate possession of their 1/4^th share in the land bearing Sy.No.140/6 measuring 02 acres 20 cents. They filed an application under Order XXXIX Rules 1 and 2 of Civil Procedure Code for an order of an interim injunction to restrain the defendant Nos.1 and 2 from interfering with their possession in the suit schedule 'B' property.

¶31

This application was opposed by the defendant

¶32

Nos.1 and 2 who contended that the plaintiffs had accepted the Will executed by their father and they had partitioned 70 cents of land that was given to them by their father. Therefore, they contended that the defendant No.1 was the full and absolute owner of 02 acres 20 cents of land and that he was entitled to encumber the same. They claimed that defendant No.1

¶33

¶34

NC: 2024:KHC:9319 MFA No. 2295 of 2023

¶35

accordingly conveyed the entire extent of 02 acres 20 cents to the defendant No.2 and placed him in possession.

¶36

Based on these contentions and the documents

¶37

placed on record, the Trial Court by the impugned order rejected the application filed by the plaintiffs on the following grounds:

¶38

i) The plaintiffs had deliberately failed to place on record the partition deed dated 21.11.2020, in terms of which they had divided the property measuring 70 cents.

¶39

ii) It held that there was nothing on record to establish that the plaintiffs were in possession of 02 acres 20 cents of land in 'B' schedule property.

¶40

iii) The Will dated 20.07.2009 executed by the father of the plaintiffs indicated that 02 acres 20 cents was bequeathed to the defendant No.1 and therefore, he was entitled to encumber it to the defendant No.2. It also held that the family arrangement dated 01.06.2016 propounded by the plaintiffs was yet to be proved before the Court.

¶41

Being aggrieved by the said order, this appeal is

¶42

filed.

¶43

6 - NC: 2024:KHC:9319 MFA No. 2295 of 2023

¶44

The learned counsel for the plaintiffs contended that though their father had bequeathed 70 cents of the land in suit 'A' schedule to the plaintiffs in terms of the Will dated 20.07.2009, a larger extent of land measuring 02 acres 20 cents of land in suit 'B' schedule was given to the defendant No.1 which resulted in severe heart burn between the plaintiffs and defendant No.1 which ultimately was settled in terms of a family arrangement dated 01.06.2016. As per the said family arrangement, apart from 70 cents of land which was given to the plaintiffs, they were also entitled to 1/4^th share in the suit schedule properties. He therefore, contended that the question whether the family arrangement dated 01.06.2016 was entered into or not, is a triable issue and therefore, pending disposal of the suit, their possession in the suit properties could not be disturbed. He contended that the defendant No.1 did not have an exclusive right to convey the entire property in the light of the family arrangement dated 01.06.2016.

¶45

Per contra, the learned senior counsel for the defendant Nos.1 and 2 contended that the sale deed executed by the defendant No.1 in favour of the defendant No.2 was based on the Will dated 20.07.2009 in terms of which, 02 acres

¶46

¶47

NC: 2024:KHC:9319 MFA No. 2295 of 2023

¶48

20 cents of land in suit 'B' schedule fell to the share of defendant No.1. He submits that this Will dated 20.07.2009 was duly acted upon and accepted by the plaintiffs. The plaintiffs had entered into a partition deed and divided 70 cents of land amongst them that was bequeathed to them by their father under the Will dated 20.07.2009. He therefore, contends that at this stage, except the self-serving statement of the plaintiffs that there was a family arrangement dated 01.06.2016, there is no other material to establish that such a family arrangement was admitted or accepted by the defendant No.1. He therefore, contends that the defendant No.2 being placed in possession of the suit property, cannot be restrained from enjoying his own property.

¶49

In reply, the learned counsel for the plaintiffs contended that a house existed on the suit schedule 'B' property and the defendant Nos.1 and 2 are trying to disturb the plaintiffs from the suit schedule house.

¶50

I have considered the submissions made by the learned counsel for the appellants and learned counsel for the respondents.

¶51

¶52

NC: 2024:KHC:9319 MFA No. 2295 of 2023

¶53

As rightly contended by the learned senior counsel for the defendants, the execution of the Will dated 20.07.2009 cannot be called in question either by the plaintiffs or defendant No.1, as both of them have acted upon and accepted the lawful execution of the said Will. On 21.11.2020, the plaintiffs have partitioned 70 cents of land in suit 'A' schedule property that was bequeathed to them under the Will dated 20.07.2009. The house that existed on 70 cents of land, fell to the share of the plaintiff No.1 as per the partition deed dated 21.11.2020. The defendant No.1 based on the said Will has brought about a sale in favour of defendant No.2 on 10.03.2021. Therefore, except the family arrangement dated 01.06.2016, propounded by the plaintiffs, there are no other documents to establish that the plaintiffs had retained any right, title or interest in the schedule 'B' property.

¶54

Therefore, the Trial Court rightly refused to grant an order of injunction restraining the defendants from interfering with the possession of the plaintiffs' share in the suit property. However, having regard to the fact that the plaintiffs had pleaded that family arrangement was executed between them and the defendant No.1, this being a triable issue, the

¶55

¶56

NC: 2024:KHC:9319 MFA No. 2295 of 2023

¶57

Trial Court ought to have directed the parties to maintain status-quo by directing the defendants not to encumber, alienate, transfer or part with the possession of the suit property in favour of any person, until the disposal of the suit. This would protect the interest of the plaintiffs as well as the defendants, pending disposal of the suit.

¶58

In that view of the matter, the impugned order does not warrant any interference. However, in order to maintain the status-quo of the property, pending disposal of the suit, it is appropriate to restrain the defendants from encumbering, transferring or alienating the suit schedule property in any manner whatsoever in favour of any person, whomsoever or part with the possession of suit property in any manner whatsoever until disposal of the suit. The order of status-quo will not affect any loan already raised by the defendant No.2 from any agricultural cooperative bank on the suit schedule property.

¶59

Similarly the defendants are restrained from cutting or removing any standing trees in the suit schedule property, but this will not come in the way of the defendants

¶60

NC: 2024:KHC:9319 MFA No. 2295 of 2023

¶61

10 -

¶62

replanting/replacing any fallen or barren Areca nut trees or coconut trees in the suit schedule property.

¶63

Sd/JUDGE

¶64

HJ List No.: 1 Sl No.: 20

Mrs Geetha Mani P Shetty v. Sri Ganesh Bangera

Case brief

What is this about?

What did the court decide?

Mrs Geetha Mani P Shetty v. Sri Ganesh Bangera

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

The Karnataka State Road Transport Vs R Venkatesh

M/S Enfrien Innovation LLP Vs the Food Corporation of India

Subhash Kumar Jain Vs N Prakash

Thopaiah Since Deceased Represented by His Legal Representatives Sri. Rangaswamy T Vs Smt Sakamma

Shaik Maula Ali Vs P. Anusuya

D a Mayura Vs Dr R Venkatachala Setty Since Dead by Lrs Dr v K Shivakumar