Appeal against refusal of temporary injunction in a suit for partition of ancestral property sold via power of attorney to respondent No.4, who constructed a three-floor building. The court upheld the refusal, relying on the respondents' undertaking not to claim equity if plaintiffs succeed, and dismissed the appeal.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO.48 OF 2024 (CPC)
BETWEEN:
SMT. ASHWATHAMMA D/O LATE CHIKKARAMAIAH AGED ABOUT 53 YEARS R/O KAMMASANDRA VILLAGE DASANAPURA HOBLI BENGALURU NORTH TALUK BENGALURU URBEN DISTRICT – 560100
…APPELLANT
(BY SRI HALLI SHANTAPPA BASAPPA, ADVOCATE)
Digitally signed by SHARANYA T Location: HIGH COURT OF KARNATAKA
AND:
S/O O LATE CHIKKARAMAIAH AGED ABOUT 65 YEARS, R/O KAMMASANDRA VILLAGE
DASANAPURA HOBLI BENGALURU - 560100 NORTH TALUK BENGALURU URBAN DISTRICT
…RESPONDENTS
(BY SRI M SHIVAPRAKASH, ADVOCATE FOR R3 & R4)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(R) OF CPC, AGAINST THE ORDER DATED 20.12.2023 PASSED ON I.A. NOS.1 AND 2 IN R.A.53/2023 ON THE FILE OF THE VI ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT, BENGALURU AND ETC.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
NC: 2024:KHC:4718 MFA No. 48 of 2024
J U D G M E N T
This matter is listed for orders. Heard the learned counsel appearing for the respective parties.
share hence, they have filed an interim application seeking the relief of temporary injunction. The said application is resisted by the respondents contending that the plaintiffs are not having any right in respect of the suit schedule property. It is the exclusive property of defendant No.1 and General Power of Attorney was executed in favour of defendant No.3 who executed the sale deed in favour of defendant No.4.
sale deed was executed in the year 2003. It is the contention of defendant No.4 that plaintiffs have already executed the relinquishment deed in favour of defendant Nos.1 and 2 and they have already received their share in the family property by executing the said relinquishment deed. The Trial Court taken note of the principles laid
down in the case of GOWRI SHANKAR SWAMIGALU vs SIDDAGANGA MUTT reported in 1989 (2) KAR L J 548
and comes to the conclusion that no prima facie case is made out by the appellant and balance of convenience lies in favour of the respondent and if an order of injunction is
granted, it will cause irreparable loss to the respondent. Hence, the present appeal is filed before this Court.
would vehemently contend that relinquishment deed is not in respect of the suit schedule property and the same is in respect of Sy.No.36 and 37. The suit schedule property is granted in favour of the father of the appellant in the year 1959 under the Inams Abolition Act. If construction is completed, it will leads to multiplicity of proceedings.
is constructed and it is not completed. Considered the factual aspect of construction to the extent of almost three floors and huge amount is also invested and the respondents have given undertaking that they are not going to claim any equity if the plaintiffs succeeds in the suit. When such undertaking is given, if stay is granted, it will cause irreparable loss and injury to the respondents hence, the Trial Court has rightly comes to the conclusion that the balance of convenience lies in favour of the respondents, not in favour of the plaintiffs since almost three floors building is constructed. The sale deed of the year 2003 is in favour of respondent No.4 and the suit is filed in the year 2022 and regular appeal is also pending wherein an interim order is sought. Having considered the reasoning given by the First Appellate Court that the prima facie case is not made out and consequently, statement of objections and undertaking given by the respondents herein, the question of continuing the order of status quo as ordered by this Court does not arise. Having perused the material available on record it discloses that
construction is undertaken spending huge money and three floor building already been constructed, at this stage, if injunction or status quo order granted in favour of the appellant, it will come in the way of respondents causing irreparable loss. The specific contention of the respondents that they are not claiming any equity if the appellant succeeds in the suit. In view of undertaking, the appellant shall get the share including the building if the suit is allowed in their favour. Hence, I do not find any merit in the appeal.
ORDER
The appeal is dismissed.
Sd/JUDGE
SN
1 issue framed by the court
Whether the trial court rightly refused temporary injunction in a partition suit where respondents constructed three floors on the suit property and undertook not to claim equity.
Colour shows how this judgement treated each authority
Gowri Shankar Swamigalu vs Siddaga MuttRelied on
1989 (2) KAR L J 548
2 provisions across 1 enactments
Smt. Ashwathamma
Shivanna
Maregowda
Smt. Ananthamma
Keshavamurthy
H.P.Sandesh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
