Dismissed

Smt Gowramma v. Smt Choodamma

Karnataka HC20 Sept 2024MFA/4750/2024

Case brief

AI extract

What is this about?

Defendants appealed against a trial court's temporary injunction restraining alienation of disputed ancestral land in a declaration-and-injunction suit. Citing rival precedents on injunction principles and affidavit verification, the High Court found the plaintiffs' prima facie case valid, held cited judgments inapplicable and unraised arguments beyond Article 227 scope, and dismissed the appeal.

What the court decided

AI extract

Smt Gowramma Vs Smt Choodamma — Property and Title | Karnataka HC (2024)

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NC: 2024:KHC:38816 MFA No. 4750 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 20^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI MISCELLANEOUS FIRST APPEAL NO. 4750 OF 2024 (CPC)

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BETWEEN:

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SMT.GOWRAMMA W/O LATE CHOODEGWODA@KENCHEGOWDA, AGED ABOUT 77 YEARS

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SMT.CHANDRAMMA W/O LATE.BALEGOWDA @ MONDAPPA AGED ABOUT 58 YEARS

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APPELLANTS 1 AND 2 ARE R/A DODDASADENAHALLI VILLAGE KARIKALDODDI POST, MARALAVADI HOBLI, HAROHALLI TALUK, RAMANAGARA -562 112

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Digitally signed by SUVARNA T Location: HIGH COURT OF KARNATAKA

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SMT.SAROJAMMA W/O MADEGOWDA, AGED ABOUT 61 YEARS, R/AT NO.4, SHEETHALAVADI, BIDADI HOBLI, RAMANAGARA TALUK, RAMANAGARA -562 112

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SMT.SAVITHRAMMA W/O APPAJIGOWDA, AGED ABOUT 45 YEARS, R/AT DODDASADENAHALLI VILLAGE, KARIKALDODDI POST, MARALAVADI HOBLI, HAROHALLI TALUK, RAMANAGARA -562 112

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T.M.MANJUNATHA S/O MUNIYAPPA, AGED ABOUT 42 YEARS,

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R/AT NO.2A, BYRAVESHWARA NILAYA, HAROHALLI TOWN, 1^ST STAGE, BIDADI ROAD, HAROHALLI TALUK, RAMANAGARA- 562 112

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…APPELLANTS

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(BY SRI. SHEKAR L.S., ADVOCATE)

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AND:

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SMT CHOODAMMA W/O LATE CHOODEGOWDA @ DODDANNA, AGED ABOUT 70 YEARS

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NINGAIAH S/O LATE CHOODEGOWDA @ DODDANNA, AGED ABOUT 48 YEARS

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SURESH S/O LATE CHOODEGOWDA @ DODDANNA, AGED ABOUT 46 YEARS,

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SHIVARAJU S/O LATE CHOODEGOWDA @ DODDANNA, AGED ABOUT 44 YEARS,

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SMT.SAROJA D/O LATE CHOODEGOWDA @ DODDANNA, AGED ABOUT 42 YEARS,

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ALL ARE RESIDING AT DODDASADENAHALLI VILLAGE, KARIKALDODDI POST, MARALAVADI HOBLI, HAROHALLI TALUK, RAMANAGARA- 562 112

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…RESPONDENTS

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(BY SRI.NINEGOGOWDA, ADVOCATE FOR C/R1)

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THIS MFA FILED UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 25.06.2024 PASSED ON I.A. NO. 1 IN O.S.NO. 968/2023 ON THE FILE OF THE SENIOR CIVIL JUDGE AND J.M.F.C., KANAKAPURA, ALLOWING THE I.A. NO.1 FILED UNDER ORDER XXXIX RULES 1 AND 2 READ WITH SECTION 151 OF CPC.

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THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

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ORAL JUDGMENT

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Aggrieved by the order passed in I.A.No.I in O.S.No.968/2023 dated 25.06.2024 by the Senior Civil Judge & JMFC, Kanakapura, the appellants/defendants are before this Court.

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The respondents are the plaintiffs in the suit. The plaintiffs had filed the suit seeking declaration and permanent injunction. It is the specific case of the plaintiffs that one Chooda @ Choodegowda, son of Kumegowda is the propositus, he and his wife Smt.Parvathamma are no more and they had only son Bhadragiri @ Bhadragirigowda. The said Bhadragiri @ Bhadragirigowda and his wife Smt.Gowramma are no more and they had only son Choodegowda @ Doddanna. The plaintiffs are the wife and children of the said Choodegowda @ Doddanna. It is their case that Choodegowda, son of Kumegowda through Registered Sale Deed dated 30.01.1936 had purchased the property and the wife and children of Choodegowda inherited the property and they have been in possession of the property. It is their case that the defendants have no manner of right, title or interest or possession over any portion of the suit schedule property. The defendants have started interfering with

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their possession of the property. Thereafter, the plaintiffs have obtained RTCs and noticed that till 2019-20 katha continued in the name of Bhadragiri @ Bhadragirigowda, who is none other than the father in law of plaintiff No.1, paternal grandfather of plaintiff Nos.2 to 5 and all of a sudden from 2020-21 onwards names of defendant Nos.1 and 2 being entered. The defendant Nos.1 and 2 taking undue advantage of slight similarity in the names of propositus Chooda @ Choodegowda and Choodegowda @ Kenchegowda husband of defendant No.1 have managed to obtain katha on inheritance in their names. The defendant Nos.1 to 4 on the basis of such illegal katha have executed a Registered Sale Deed dated 11.12.2023 in favour of defendant No.5 in respect of suit schedule property. Basing on these averments, the plaintiffs have sought relief of declaration and permanent injunction.

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The defendants have filed their written statement. It is the case of the defendants that the plaintiffs are not related to the suit schedule property and they are the daughters of Choodegowda and they have inherited the property. In fact, they have filed a suit and they have been fighting the litigation from several years. It is stated that the great grandfather of

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defendant Nos.1 and 2 is Choodegowda and he had purchased the suit schedule property on 27.03.1936. After purchase, got the khata mutated to his name and died. Bhadragiri is the sole son of Choodegowda and he had a wife by name Kempamma. They had a son and three daughters. Choodegowda @ Kenchegowda is only son of Bhadragiri and Kempamma. The second daughter is Parvathamma, third daughter is Mayamma and fourth daughter is Choodamma, they are no more and Marakka, wife of Choodegowda @ Kenchegowda had three children by name Gowramma, Balegowda @ Mandappa and Chandramma. After the death of Choodegowda the children of Choodegowda that is defendant Nos.1 and 2 are in possession and enjoyment of the property. The plaintiffs had filed the suit with all false and frivolous allegations. It is their case that the RTC extracts do not stand in their name. O.S.No.84/2004 is filed by one Kunnegowda S/o. Balegowda, in that, the father of the defendants appeared through advocate and filed written statement. In respect to the suit schedule property, Kunnegowda had filed suit for declaration and injunction i.e., O.S.No.240/2014 on the file of Principal Civil Judge (Jr.Dvn), Kanakapura against the defendants No.1 and 2 and they have

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filed their written statement and marked their documents. The plaintiff had filed an application under Order 7 Rule 10 of CPC and took back the plaint to file the same in proper court having jurisdiction. Till date without representing the plaint against the defendant Nos.1 and 2 has filed the present suit through the present plaintiffs and as such the suit is liable to be dismissed. It is the case of the defendants that they are in possession of the property and they have executed the sale deed dated 11.12.2023 and have delivered the possession to defendant No.5 and from there on he has been in possession and enjoyment of the property.

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The plaintiffs had filed I.A.No.1 seeking injunction restraining the defendants from alienating the property. The trial Court had allowed the said I.A. and while allowing the said I.A., the Court had observed that the plaintiffs have relied upon the sale deed dated 30.01.1936 said to have been executed in favour of their grandfather Chooda @Chudegoowda S/o. Kumegowda. Defendant No.5 has relied upon the sale deed dated 27.03.1936 to claim that great grandfather of the defendant Nos.1 and 2 by name Choodegowda purchased the suit schedule property. The Court observed that on perusal of

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the records, it is clear that defendant No.5 has not produced sale deed dated 27.03.1936. They have produced the certified copy of the sale deed dated 15.05.1936 pertaining to Sy.No.89/1, whereas the suit schedule property is bearing Sy.No.79 and the same is mentioned in the sale deed dated 30.01.1936 relied upon by the plaintiffs. The trial Court observed that the defendants have disputed the family genealogy pleaded by the plaintiffs and contended that Bhadragiri @ Bhadragirigowda is not their grandfather. The Court came to the conclusion that there are triable issues involved in the suit and as such the Court held that the plaintiffs have made out prima-facie case for trial. Defendant No.5 has purchased the suit schedule property from defendant Nos.1 and 2. If he succeeds in alienating this property during the pendency of the suit, definitely the plaintiffs will be put to hardship and inconvenience and the alienation of the suit schedule property will create third party interest and it will lead to multiplicity of proceedings. In order to avoid such complications, it is just and necessary to grant the relief of temporary injunction as prayed for by the plaintiffs and the Court held that the balance of convenience lies in favour of the

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plaintiffs and if the injunction is not granted, they will be put to hardship and inconvenience. Aggrieved thereby, the defendants are before this Court.

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Learned counsel appearing for the appellantsdefendants submits that the plaintiffs are strangers and they are not grandchildren of Bhadragirigowda as stated by them. It is submitted that they have been fighting litigation from the last 20 years and finally, the RTC extracts were changed in the year 2020 and they have sold the property. He submits that when they are not in possession of the property from a long time, they are not bothered about what is happening to the suit schedule property they are not entitled for injunction. In that regard, learned counsel had relied on the judgement of the Hon'ble Apex Court in the case of Mandali Ranganna and Others Vs. T.Ramachandra and Others¹ where he had relied on para Nos.21 and 22 of the said judgement:

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"21. While considering an application for grant of injunction, the court will not only take into consideration the basic elements in relation thereto, viz. existence of a prima facie case, balance of convenience

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1 (2008) 11 SCC 1

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and irreparable injury, it must also take into consideration the conduct of the parties.

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22. Grant of injunction is an equitable relief. A person who had kept quiet for a long time and allowed another to deal with the properties exclusively, ordinarily would not be entitled to an order of injunction. The court will not interfere only because the property is a very valuable one. We are not however, oblivious of the fact that grant or refusal of injunction has serious consequence depending upon the nature thereof. The courts dealing with such matters must make all endeavours to protect the interest of the parties. For the said purpose, application of mind on the part of the courts is imperative. Contentions raised by the parties must be determined objectively."

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Basing on this, learned counsel submits that the

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Hon'ble Apex Court observed that while granting injunction, the Courts have to take into consideration all these aspects which the trial Court had not taken into consideration and the plaintiffs are not entitled for injunction. Then he has drawn the attention of the Court to the application that is filed seeking injunction. It is the contention of the counsel that there is no verifying affidavit in that regard and he had relied on another judgement of the Constitutional Bench of the Hon'ble Apex

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Court in the case of A.K.K.Nambiar Vs. Union of India and

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Another² . He had relied on para No.11 of the said judgment:

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"11. The appellant made allegations against the Chief Minister of Andhra Pradesh and other persons some of whose names were disclosed and some of whose names were not disclosed. Neither the Chief Minister nor any other person was made a party. The appellant filed an affidavit in support of the petition. Neither the petition nor the affidavit was verified. The affidavits which were filed in answer to the appellant's petition were also not verified. The reasons for verification of affidavits are to enable the Court to find out which facts can be said to be proved on the affidavit evidence of rival parties. Allegations may be true to knowledge or allegations may be true to information received from persons or allegations may be based on records. The importance of verification is to test the genuineness and authenticity of allegations and also to make the deponent responsible for allegations. In essence verification is required to enable the Court to find out as to whether it will be safe to act on such affidavit evidence. In the present case, the affidavits of all the parties suffer from the mischief of lack of proper verification with the result that the affidavits should not be admissible in evidence."

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Basing on this, it is submitted that the plaintiffs are not entitled for injunction and the trial Court without considering all these

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2 AIR 1970 SC 652

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aspects had granted injunction and the same needs to be vacated.

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Learned counsel appearing for the respondents-

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plaintiffs submits that there is no relationship between the defendants and the plaintiffs. Learned counsel has drawn the attention of the court to the finding of the trial Court and submits that the source of title to the plaintiff is sale deed dated 30.01.1936 and as per the written statement, the source of title to the defendant is 27.03.1936. The trial Court had observed that even that document is not placed before the Court. In fact, they have placed a sale deed dated 15.05.1936 which has nothing to do with the suit schedule property and it pertains to Sy.No.89/1, whereas suit schedule property is Sy.No.79. It is submitted that taking advantage of the similarity in the names the defendants are coming up with such a plea. It is submitted that for the year 2020, the RTC extracts stands in the name of the first plaintiff's father-in-law and the other plaintiffs' grandfather. Once they come to know about the change of RTC extracts and the alienation made by the defendants, they have filed the suit. Just because the defendants are fighting some litigations for which plaintiff are

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not parties and basing on that, the defendants cannot have any advantage. He submits that the trial Court by way of reasoned order had granted injunction and there are no grounds to interfere with the well considered order passed by the trial Court.

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Having heard the learned counsels on either side, perused the entire material on record. The suit is filed for declaration and injunction. According to the defendants, their great grandfather had purchased the property on 30.01.1936 and they have succeeded to the property and they have been in possession of the property till the year 2020. Till the year 2020, the RTC extracts stands in the name of grandfather of the plaintiffs. According to the defendants, their great grandfather had purchased the property by way of sale deed dated 27.03.1936. Admittedly, the said document is not placed before the Court. What is placed is a sale deed dated 15.05.1936 which is not pertaining to the suit schedule property. Now, though the documents are not one and the same, both of them

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are referring to their source of title to Bhadragiri or the property purchased by his father Choodegowda. The Court had rightly at para No.11 had observed that all these issues have to

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be decided during the course of trial and at this stage, the Court cannot go into those aspects. Once the Court cannot decide the issues at this point of time, the Court has to look at prima facie case. The document that is filed by the plaintiff dated 30.01.1936, which shows the source of title to the plaintiff and particularly, considering the document that is placed by the defendants, the trial Court has held that the plaintiffs had made out a prima facie case. After the RTC extracts are changed in their name in the year 2020, defendant Nos.1 and 2 sold the property in favour of defendant No.5. The Court had rightly observed that if there are further sales, unnecessary it gives rise to multiplicity of proceedings. The judgment which the appellants.

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Defendants is relying on is with regard to grant of injunction. In the considered opinion of this Court, it do not apply to the facts and circumstances of this case. Then coming to the next issue of verification of affidavit, none of these issues were never raised before the trial Court. This Court exercising jurisdiction under Article 227 of Constitution of India is not inclined to go into those aspects. In that view of the

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