Daughter sought interim injunction against alienation and construction over suit land claimed as joint family property of her father, against vendees of her uncle's line. Court found prior partition evidenced by revenue records and unchallenged mutation, no prima facie case, and dismissed the appeal.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MFA NO. 5547 OF 2024 (CPC)
BETWEEN:
SMT. NAGARATHNAMMA W/O. LATE SHIVARAMAYA D/O. LATE NARASIMHAIAH. D. N. AGED ABOUT 54 YEARS R/AT CHIKKANAHALLI VILLAGE TAVAREKERE HOBLI BENGALURU SOUTH TALUK BENGALURU-562 103 …APPELLANT (BY SRI SURESHA C., ADV.)
AND:
Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA
PATTANAGERE BENGALURU-560 098
(BY SRI.P.KESHAVAMURTHY, ADV. FOR R7 TO R9; NOTICE TO R1 TO R6 IS DISPENSED WITH VIDE ORDER DATED 14.10.2024)
THIS MFA IS FILED UNDER OORDER 43 RULE 1(r) READ WITH SECTION 151 OF CPC, AGAINST THE ORDER DATED 22.07.2024 PASSED ON I.A.NO.1 TO 4 IN OS.NO.126/2024 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, NELAMANGALA, REJECTING THE IA.NO.1 AND 2 FILED UNDER ORDER 39 RULE 1 AND 2 READ WITH SECTION 151 OF CPC AND ALLOWING THE IA.NO.3 AND 4 FILED UNDER ORDER 39 RULE 4 READ WITH SECTION 151 OF CPC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
NC: 2024:KHC:47660 MFA No. 5547 of 2024
ORAL JUDGMENT
Heard the learned counsel appearing for the
appellant and for the respondents.
and 4 by the Trial Court. I.A.Nos.1 and 2 are filed by the plaintiff under Order XXXIX Rule 1 and 2 read with Section 151 of CPC wherein the prayer is sought by her not to alienate the suit schedule property and not to put up any construction and I.A.Nos.3 and 4 are filed by the defendants under Order XXXIX Rule 4 read with Section 151 of CPC, seeking to vacate the interim order granted earlier. The Trial Court, having considered the material on record rejected I.A.Nos.1 and 2 filed by the plaintiff and allowed I.A.Nos.3 and 4 filed by the defendants.
property contended that defendant Nos.1 to 5 are the children of Narasimhaiah D.N. and Parvathamma and whereas plaintiff is also the daughter of said Narasimhaiah and Parvathamma. The suit schedule property was managed by Narasimhaiah during his lifetime which is the joint family property. After his death, the plaintiff became the head of the joint family. Ramaiah, the younger brother of Narasimhaiah taking advantage of death of his brother and the fact that plaintiff and defendant Nos.1 and 2 were living in their matrimonial homes, in collusion with revenue officials without knowledge of plaintiff and defendant Nos.1 and 2, got transferred 2 acres of land to his name in terms of Mutation No.IHC.10/94-95. After the death of said Ramaiah, the property was transferred in favour of his son Jagadish in the year 2018, and he also passed away and after his death, the property was transferred in favour of his wife Bhagyamma i.e. defendant No.6 in terms of MR.H30/2020-21 dated 21.01.2021.
defendant Nos.3 to 5 and made all attempts to get an adinterim order.
I.A.Nos.1 and 2 and also taken note of the dismissal of earlier application filed by the brother of the plaintiff seeking the very same relief in O.S.No.837/2022 and dismissed I.As filed by the plaintiff and allowed IAs filed by the defendants.
transferred in favour of Bhagyamma, who in turn sold the property in favour of defendant Nos.7 to 9 along with her children.
extent of 4 acres 38 guntas they would have divided entire extent and revenue records also establish that 2 acres of land was given to Ramaiah who is none other than the brother of Narasimhaiah in the year 1994-95 itself and thereafter revenue records are also changed in favour of his son as well as daughter-in-law, thereafter the property was sold.
Bhagyamma in favour of defendant Nos.7 to 9. It is also important to note that when the suit is filed for the relief of partition, there cannot be a suit for partial partition and ought to have included all the properties left by Narasimhaiah. The Trial Court has also taken note of Registered Partition Deed between the brothers of plaintiff wherein they excluded remaining area of 2 acres of land which was standing in the name of Ramaiah and thereafter transferred in favour of Bhagyamma and also it is important to note that the brother of the plaintiff had also filed a suit in OS.No.837/2022 against Bhagyamma and
her children wherein also inter alia sought for the relief of temporary injunction invoking Order XXXIX Rule 1 and 2 CPC and same also came to be dismissed. The said suit is also not pursued by the plaintiff of O.S.No.837/2022 and the counsel appearing for the appellant also would submit that the same has been withdrawn.
a suit only for the property already sold and making the
same as the suit schedule property in the suit excluding other properties, which belonged to her father Narasimhaiah and also Court has taken note of conduct that I.A. filed by the brother of the plaintiff in O.S.No.837/2024 was rejected on 14.06.2023 and subsequent to dismissal of the said I.A, the present suit in O.S.No.126/2024 is filed. When such materials are available before this Court, the plaintiff has not made out any prima facie case, also she has not approached the Court with clean hands and approached the Court making the suit schedule property which was sold by Bhagyamma in favour of defendant Nos.7 to 9 and the same is also for the relief of partition excluding other properties and hence, question of granting any interim order as sought by the appellant/plaintiff does not arise and other revenue records which have been placed before the Trial Court by the respondents clearly evidencing the fact that there was a partition between the sons of Narasimhaiah and also partition between Narasimhaiah and his brother Ramaiah and IHC.10/94-95 also came into existence in the year
1994-95 itself and same was not challenged either by the plaintiff or by her brothers when the property was mutated in favour of the brother of Narasimhaiah long back i.e. in favour of Ramaiah. Thereafter, Ramaiah's family enjoyed the property and subsequently sold the property in favour of defendant Nos.7 to 9. Hence, when such being the material available on record, I do not find any merit in the appeal to reverse the order passed by the Trial Court. Since the plaintiff has not made out any prima facie case, no balance of convenience lies in favour of plaintiff/appellant and if any such interim order not to alienate the suit schedule property and not to put up any construction is passed against the respondents, they will be put to hardship.
ORDER
The Miscellaneous First Appeal is
dismissed .
In view of disposal of the main appeal, pending I.A., does not survive for consideration
and is accordingly disposed of .
Sd/(H.P.SANDESH) JUDGE
MKM
List No.: 1 Sl No.: 44
1 issue framed by the court
Whether the trial court erred in rejecting the plaintiff's temporary injunction applications and vacating the interim order in a partition suit.
4 provisions across 1 enactments
Smt. Nagarathnamma
Smt. Lakshmamma
Smt. Shanthamma
Sri K. N. Narayanaswamy
Sri Nagaraju K. N.
Sri K. N. Nagesh
H.P. Sandesh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
