Dismissed

Sri Ashwathappa v. Smt N Radha @ Radhamma

Karnataka HC5 Nov 2024MFA/4134/2024

Case brief

AI extract

What is this about?

An appellant appealed against an order granting temporary injunction to restrain obstruction of an access road essential for reaching partitioned properties. The High Court dismissed the appeal, holding the trial Court correctly found no alternative access and the order did not require interference.

What did the court decide?

Appeal dismissed; original order granting temporary injunction against obstruction of access remanded stands affirmed.

Sri Ashwathappa Vs Smt N Radha @ Radhamma — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC:44423 MFA No. 4134 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^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. 4134 OF 2024 (CPC)

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BETWEEN:

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SRI ASHWATHAPPA S/O LATE VENKATAPPA AGE ABOUT 76 YEARS

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SRI KEMPANNA S/O ASHWATHAPPA AGE ABOUT 49 YEARS

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SRI A MANJUNATHA S/O ASHWATHAPPA AGE ABOUT 46 YEARS

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ALL ARE R/AT MALLANAHALLI VILLAGE, JALA HOBLI, YELAHANKA TALUK BANGALORE URBAN DISTRICT - 562 149

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…APPELLANTS

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Digitally signed by REKHA R Location: High Court of Karnataka

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(BY SRI. ANANDA H.C., ADVOCATE)

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AND:

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SMT N RADHA @ RADHAMMA W/O BHANU PRASAD D/O LATE NARAYANASWAMY P AGED ABOUT 34 YEARS R/O NO.2031 OLD HOSPITAL OLD ROAD NO.06, KURABARAPETE SIDLAGHATTA TALUK CHIKKABALLAPURA DISTRICT - 562 105

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THE TAHASILDAR AND TALUKA EXECUTIVE MAGISTRATE

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NC: 2024:KHC:44423 MFA No. 4134 of 2024

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THE OFFICE OF THASILDARA SIDLAGHATTA CHIKKABALLAPURA DISTRICT - 562105

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…RESPONDENTS

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(BY SRI. VIVEKANANDA N., ADVOCATE FOR C/R1)

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THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DATED 19.03.2024 PASSED ON I.A.NO.3 IN O.S.NO.4/2024 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, SHIDLAGHATTA, ALLOWING IA NO.3 FILED UNDER ORDER 39 RULE 1 AND 2 READ WITH SECTION 151 OF CPC.

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THIS APPEAL, 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 the appellants and also counsel appearing for respondents.

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This appeal is filed against the order granting injunction on I.A.No.3 filed by the plaintiff under Order 39 Rule 1 and 2 r/w Section 151 of C.P.C, wherein the said order has been passed against the appellants causing obstruction from using DKJH road shown in the annexed rough sketch by means of ad-interim order of injunction.

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3 - NC: 2024:KHC:44423 MFA No. 4134 of 2024

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The main contention of the plaintiff before the

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trial Court is that one Venkatappa is propositus of herself and defendants. The said Venkatappa passed away and he had two sons by name P.V.Narayanaswamy and Ashwathappa and there was a partition between the father and two children. It is contended that suit schedule 'A' property was allotted in favour of plaintiff by plaintiff's adopted father and he was married to one Smt.Venkatamma and they were not having biological children and they were issueless. Both of them have taken the plaintiff in her adoption way back in the year 1990, when she was one year old girl.

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When they adopted the plaintiff, she was brought up and both of them have provided education and performed her marriage and both of the adopted parents are no more. During the lifetime, her adopted mother has forecasted this type of ill motivated stand by the plaintiff and hence document was registered in this regard on 15.01.2021. It is also the contention that the property in

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Sy.No.17, measuring 3 acres 17 guntas excluding kharab of 2 guntas, partition was taken place between them. Schedule 'A' property was allotted to the share of Narayanaswamy, schedule 'C' property was allotted to Venkatappa i.e., father of Narayaswamy and defendant No.1 and 'D' schedule property was allotted to defendant No.1. For easy understanding, a rough sketch is also produced along with the plaint.

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It is specifically stated that the property which was demarcated with the letters 'ABCD' is the land allotted to Narayanaswamy i.e, 'A' schedule property. The property which is demarcated with letters 'DCEF' is the land allotted to the share of Venkatappa i.e., 'C' schedule property and the property demarcated with letters 'EFGH' is the land allotted to the share of defendant No.1 i.e., 'D' schedule property. It is contended that property which is allotted to defendant No.1 is abetting to the main road, which is popularly called as Dibburahalli-Sidlaghatta Main road which was implied contract between the father and sons.

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NC: 2024:KHC:44423 MFA No. 4134 of 2024

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At the time of partition, when the deceased

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Narayanaswamy and Venkatappa must have reached their respective lands through an access at northern edge of schedule 'D' property and the same is demarcated with the letters DKJH. The said access runs West to East and the same is measuring 20 feet width. The said implied contract between the parties is in force till this date and parties are enjoying their respective properties accordingly.

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It is contended that on 06.06.2023, the defendants herein being ill minded persons have started causing problem to the plaintiff to go to the schedule 'A' and 'B' properties and middling with peaceful possession and enjoyment of suit schedule property and threatened to close the 20 feet width DKJH road/access which is the only access to reach the schedule 'A' and 'C' properties. Apart from that she came to know that defendant No.1 being ill minded person has furnished incorrect information and got mutated the khatha of schedule 'C' property in his exclusive name, though the father Venkatappa died

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NC: 2024:KHC:44423 MFA No. 4134 of 2024

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intestate. With regarding the same, she reserved her right of initiating a separate proceeding against the defendants. It is also contended that schedule 'A', 'C' and 'D' properties are adjacent to main road and also to the Sidhlaghatta town. As such those properties agricultural potentiality has been lost. In the 2^nd week of December 2023, by taking undue advantage of Khatha pertaining to the schedule 'C' and 'D' properties, defendant No.1 is trying to lease out the entire schedule 'D' property to some private company by causing obstruction to the road/access and hence, without any alternative plaintiff has filed suit and inter-alia sought for relief of the temporary injunction to restrain the defendants from causing obstruction.

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The defendants appeared and filed written statement and they have not disputed the fact that Venkatappa was the propositus and he had two sons. They have not disputed the fact that they were member of the joint family and also the fact that there was registered partition deed dated 29.05.1974. It is also contended that

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though in the said partition of 3 shares, out of them one share was shown to be allotted to the share of Venkatappa, but actually properties were divided into 2 shares, as it was agreed and understood by the parties whatever the share shown in the Venkatappa that was allotted to the share of defendant No.1 as he has children, but the said P.V. Narayanaswamy did not have any issue.

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The share mentioned in the deed is only for Venkatappa. Accordingly, after death of the said Venkatappa, during the lifetime P.V.Narayanaswamy and after his death Venkatamma also did not make any objection to change the 2 shares out of 3 shares in the said property in the name of defendant No.1 in the year 2000-01 and hence, it was accepted and acquiesced also.

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It is further contended that P.V.Narayanaswamy and Venkatamma did not have any issue and these defendants have settled at Mylanahalli Village, Yelahanka Taluk because the defendant No.1's father-in-law did not have any male issue, therefore, nobody was there to look

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after the property and his sister-in-law and her husband were making hectic efforts to knock of the whole property. At that time, on the advice and instructions of his brother Narayanaswamy, defendant No.1 along with his family, defendant Nos.2 and 3 have shifted their residence from Sidhlaghatta to Mylanahalli village. However, they have been looking after the property of the Sidlaghatta also. The plaintiff's parents were tenant of P.V. Narayanaswamy and they were very well known about the family history of P.V.Narayanaswamy, accordingly since resemblance name

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of the both persons i.e., the father name of the plaintiff is Narayanaswamy as that of P.V.Narayanaswamy, as such they have taken the advantage of resemblance names. After the death of P.V.Narayanaswamy recently the plaintiff illegally mentioned her father name as P.V.Narayanaswamy instead of Narayanaswamy in the Aadhar card and ration card.

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Taking advantage of the same created a document including the adoption deed and making an

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9 - NC: 2024:KHC:44423 MFA No. 4134 of 2024

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attempt to property allotted in favour of Narayanaswamy

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and registered the document on 25.08.2021 in respect of the house property bearing assessment No.1638/1264. The plaintiff, her parents and her husband have taken ignorance of old age of Venkatamma, who was wife of P.V.Narayanaswamy and created the registered deed of adoption.

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Moreover the alleged adoption deed was void,

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as on the date of registration, she was aged about 33 years and contend that no such power was in existence and question of granting interim order does not arise. The trial Court having considered the material on record and

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also the pleadings and documents which have been produced come to the conclusion that the defendants have not stated in their written statement to reach the alternative way to the suit schedule property as shown in the rough sketch and also though an observation is made that no documents is produced before the Court that 20 feet width road was in existence towards Northern edge of

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10 - NC: 2024:KHC:44423 MFA No. 4134 of 2024

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'C' and 'D' schedule properties, but except that road no alternative way to plaintiff to reach the schedule properties.

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The defendants have admitted the partition deed dated 29.05.1974 and record of rights are also standing in the name of P.V.Narayanaswamy and Ashwathappa. Having considered these material particularly document of partition and 'A' schedule property which is morefully described in the plaint allotted in favour of Narayanaswamy come to the conclusion that plaintiff is entitled for relief of temporary injunction as sought.

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Being aggrieved by the said order the present appeal is filed. The main contention of the learned counsel appearing for the plaintiff that even though plaintiff has not made out any prima facie case the trial Court has committed an error and fails to take note of the fact that she is claiming as an adopted daughter. The plaintiff is not having any right in respect of the suit schedule properties.

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NC: 2024:KHC:44423 MFA No. 4134 of 2024

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It is also contended that when the suit is for the relief for status in the sale deed to consider implication of adoption deed, plaintiff is held as family of P.V.Narayanaswamy, based on the created document of adoption claiming the right in respect of suit schedule properties. Learned counsel also vehemently contend that the trial Court ought not to have granted temporary injunction.

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Learned counsel also relied upon the decision in Moturu Nalini Kanth Vs. Gainedi Kaliprasad (dead through LRs¹ ) . The learned counsel referring to this judgment would contend that the very adoption claimed by the plaintiff is defective and the trial Court ought to have considered the same. Learned counsel also vehemently contend that when the pleadings in the plaint itself is clearly mentioned that on the western side there is a road at Sidlaghatta-Dibburahalli, they cannot claim any relief of temporary injunction.

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1 2024 (1) KCCR 14 (SC)

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NC: 2024:KHC:44423 MFA No. 4134 of 2024

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Per contra learned counsel for respondent would contend that no dispute that there is a partition between the two sons and father and learned counsel vehemently contend that suit schedule 'A' property morefully described in the plaint is allotted in favour of P.V.Narayanaswamy and the same is located at eastern side of the total measurement of the suit schedule properties i.e., 3 acres 17 guntas and thereafter middle portion was allotted in favour of father Venkatappa and defendant No.1 was allotted the property of 'D' schedule

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and he is having access on the western side of road of Sidlaghatta/Dibburahalli road and there is no any alternative road in respect of 'A' schedule property which was allotted in favour of P.V.Narayanaswamy. The learned counsel vehemently contend that the trial Court taking note of the 'A', 'C' and 'D' schedule properties shown in the rough sketch and also taking into note that the material on record shows that there is no any alternative road to access the 'A' schedule property of the plaintiff, rightly comes to the conclusion in paragraph Nos.21 and

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NC: 2024:KHC:44423 MFA No. 4134 of 2024

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22 that plaintiff has made out a prima facie case and it does not require any interference.

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Having heard the learned counsel for appellants and also the learned counsel appearing for respondents that no dispute that there is a partition among the two sons of Venkatappa, as Venkatappa is also allotted one share. The defendant also not disputed the fact that these shares were allotted. However, they claim that though 2 shares are shown in respect of Venkatappa and also defendant No.1 Ashwathappa and only for the nominal purpose 2 shares are made, since Narayanaswamy was not having any children and hence, 2 shares were given to defendant No.1 Ashwathappa and also documents are changed in his favour and given consent and the same has not been objected.

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Learned counsel would vehemently contend that when the very adoption is disputed, question of granting relief does not arise. However, appellants not dispute the fact that property was allotted in favour of

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NC: 2024:KHC:44423 MFA No. 4134 of 2024

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P.V.Narayanaswamy and plaintiff claim that she is the adopted daughter, since the said P.V.Narayanaswamy and Venkatamma were not having any biological children and it is her claim that when she was aged about one year, she was adopted and they only provided education and even performed the marriage. Having considered the material on record, no dispute with regard to fact that there was a division in the family in the year 1974 itself and the document is also a registered document.

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The Court also must take note of the Shara in the said registered partition, specifically stating that on the eastern side of the property of total 3 acres 17 guntas was allotted in favour of P.V.Narayanaswamy and no doubt there is no any provision is made for road. It is the specific contention that on the northern side, there was access to reach the 'A' schedule property. When the suit is filed for relief of declaration and inter-alia sought for temporary injunction and specific pleading is made that on the northern side of the entire property of 3 acres 17 guntas,

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there is an access and the same has not been categorically denied by the defendants in the written statement and also not stated anything about that there is an alternative road to reach the 'A' schedule property which is morefully described in the plaint. Such being the case the documents also discloses with regard to the allotment of the property on the eastern side of the entire property of 3 acres 17 guntas in favour of Narayanaswamy and unless there is an existence of any road and also rough sketch clearly discloses that only on the western side of the property which was allotted in favour of the 1^st defendant, there is a road at Sidlaghatta/Dibburuhalli. The fact that entire property belongs to the same family is not in dispute.

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Hence, when such being the case the defendant No.1 is having road adjacent to his property on western side and learned counsel appearing for the appellants tried to convince this Court that on the western side there is a road, but the property was divided between the parties on the northern and southern direction not in vertical division

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of eastern and western direction and when there is no any alternative road, the very contention of the learned counsel appearing for the appellants that the trial Court has committed an error in granting an order of injunction cannot be accepted and hence, I do not find any error committed by the trial Court, taking into material available on record and granting the interim relief not to cause any obstructions to the road, which has been shown in the rough sketch during the pendency of the suit.

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Learned counsel appearing for the appellants relied upon the judgment referred supra and the same is in respect of adoption is concerned and at the time of granting of interim relief, the question of considering the validity of adoption also doesn't arise and only Court has to exercise its discretion with regard to the relief as sought in the application and only to take out whether there is any prima facie case for granting relief and balance of convenience in favour of plaintiff and hardship and the same has been considered by the trial Court to come to

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NC: 2024:KHC:44423 MFA No. 4134 of 2024

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the conclusion that temporary injunction is not granted. The plaintiffs/respondents would put to hardship and balance of convenience is also weighed by the trial Court while granting such relief. Hence, I do not find any reasons to interfere with the order of the trial Court. In view of the

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discussions made above, I pass the following:

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ORDER

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Appeal is hereby dismissed.

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SD/(H.P.SANDESH) JUDGE

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List No.: 1 Sl No.: 35

Sri Ashwathappa v. Smt N Radha @ Radhamma

Case brief

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Sri Ashwathappa v. Smt N Radha @ Radhamma

Case brief

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