Allowed

Sri N Chandrashekaraiah v. Sri B Shivanandaiah

Karnataka HC13 Nov 2024MFA/6959/2023

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed the miscellaneous first appeal and set aside the trial court order dismissing an injunction application. The court held that the trial court erred in dismissing the prayer for interim protection as the property description matched the undisputed partition deed, rendering the release deed contention unsupported. The interim relief against the respondent was grant

What did the court decide?

The fraudulent and erroneous order is set aside; the interim injunction application (I.A. No. 1) is allowed; relief sought against the respondent is granted.

Sri N Chandrashekaraiah Vs Sri B Shivanandaiah — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:46011 MFA No. 6959 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH

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MISCELLANEOUS FIRST APPEAL NO. 6959 OF 2023 (CPC)

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BETWEEN:

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SRI N. CHANDRASHEKARAIAH S/O LATE NANJUNDAIAH AGED ABOUT 81 YEARS, RESIDING AT VILLA NO.181, ADARSHA VISTA, NEAR PETROL BUNK VIGNAN NAGAR BENGALURU-560 037.

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…APPELLANT

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(BY SRI. FAYAZ SAB B.G., ADVOCATE)

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AND:

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Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

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SRI B. SHIVANANDAIAH S/O LATE N. BASAVARAJAIAH AGED ABOUT 61 YEARS, RESIDING AT GULIMANGALA VILLAGE, HUSKUR MAIN ROAD, HUSKUR POST BENGALURU-560 099.

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…RESPONDENT

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(BY SRI. CHETAN N., ADVOCATE FOR C/R)

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THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DATED 02.09.2023 PASSED ON IA NO.1 IN O.S.NO.6955/2022 ON THE FILE OF THE XV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, (CCH NO.3), DISMISSING IA NO.1 FILED U/O.39 RULES 1 AND 2 R/W SEC.151 OF CPC.

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2 - NC: 2024:KHC:46011 MFA No. 6959 of 2023

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THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE H.P.SANDESH

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ORAL JUDGMENT

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Heard the learned counsel for the appellant and learned counsel for the respondent.

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The Trial Court rejected the application filed under Order 39 Rule 1 and 2 CPC, wherein prayer is sought restraining the defendant from interfering with peaceful possession and enjoyment of the suit schedule property.

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The main contention of the learned counsel for the appellant is that he is the absolute owner of the suit schedule property which is morefully described in the schedule and the same is allotted vide partition deed dated 19.08.2006 and the defendant is interfering with possession of the property.

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The defendant appeared and filed the written statement and admitted the partition deed dated 19.08.2006. But, contention was taken by the defendant that plaintiff executed registered release deed in favour of his father i.e., brother of the plaintiff and deceased in respect of the property.

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3 - NC: 2024:KHC:46011 MFA No. 6959 of 2023

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The defendant also took the contention that his father was in possession and enjoyment of property released by the plaintiff and after the death of his father, he is in possession and enjoyment of the suit schedule property and that plaintiff has no right over the said property. It is also contended that plaintiff in the partition deed dated 19.08.2006 without his consent and without mentioning the release deed entered the suit schedule property in the partition deed. It is also further contended that plaintiff has falsely stated that the defendant has created story and filed O.S.No.2979/2019 against him and sought decree against him. Hence, prayed the Court to dismiss the application.

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The Trial Court having considered the pleadings of the parties, framed the points for consideration for grant of temporary injunction and answered point Nos.1 to 3 as ‘negative’ and dismissed the application, in coming to the conclusion in paragraph No.9 of the order that the property claimed by defendant in O.S.No.2979/2019 and property claimed by plaintiff in present case are two different properties and also taken note of the schedule mentioned in the plaint and also claim is based on the partition deed dated 19.08.2006.

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NC: 2024:KHC:46011 MFA No. 6959 of 2023

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The Trial Court also made an observation that defendant has not produced deed of partition and also taken note of the fact that whether the claim made by plaintiff over the suit schedule property is in consonance with or depict in the partition deed. But, made an erroneous observation that description given in the plaint and the partition deed are different. The Trial Court also observed that there was decree against the plaintiff in O.S.No.2979/2019 and the same was not challenged. Hence, rejected the application on the ground that the plaintiff has not made out any prima facie case. Being aggrieved by the dismissal of the application, the present appeal is filed before this Court.

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Learned counsel for the appellant would vehemently contend that there was a family partition vide registered document of partition deed dated 19.08.2006. In pursuance of the said document, even revenue records were changed in the name of the plaintiff. Learned counsel also brought to notice of this Court item No.4 of the schedule which was allotted in favour of the plaintiff in terms of the partition deed. It is contended that suit is filed for the relief of said item No.4 and the description of the property given in the plaint as well as the

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5 - NC: 2024:KHC:46011 MFA No. 6959 of 2023

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application is item No.4 of the partition deed. Learned counsel would vehemently contend that Trial Court comes to erroneous conclusion that the decree granted in favour of the defendant has not been challenged in O.S.No.2979/2019. Learned counsel would submit that the plaintiff is not having any right in respect of schedule mentioned in O.S.No.2979/2019. Learned counsel also brought to notice of this Court schedule ‘B’ mentioned in the partition deed and the same is in respect of item No.1 of the property mentioned in schedule ‘B’ and the plaintiff is not claiming right in respect of schedule ‘B’, particularly in respect of the said suit. When such being the case, there is no need to challenge the said decree passed against the plaintiff.

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Learned counsel for the respondent would vehemently contend that the Trial Court having taken note of the discrepancy mentioned in the schedule, particularly in paragraph No.9 of the order comes to the conclusion that already appellant has suffered the decree in O.S.No.2979/2019 and it cannot be challenged and dismissed the same, in coming to the conclusion that the plaintiff has not made out any prima face case and balance of convenience.

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NC: 2024:KHC:46011 MFA No. 6959 of 2023

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Having heard learned counsel for the appellant and learned counsel for the respondent, both the appellant and respondent not dispute the partition deed which is registered on 19.08.2006. The very claim of the plaintiff is that he has got right in respect of the property i.e., item No.4 of schedule ‘A’ and suit is also filed in respect of item No.4 of the schedule which is mentioned in partition deed. Having perused the description of the property mentioned in the partition deed, plaint as well as the application, all are one and the same and the observation made by the Trial Court in paragraph No.9 of the order is contrary to the schedule to the plaint as well as the partition deed. The Trial Court failed to take note of said fact into consideration, but instead taken note of the boundaries mentioned and it is an erroneous approach by the Trial Court in O.S.No.2979/2019.

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Having perused the description of the property in O.S.No.2979/2019, the same is also in respect of khatha Nos.16/3 and 39/15 and the measurement is same in item No.1 of schedule ‘B’ property which is morefully allotted in favour of the defendant. As rightly pointed out by the learned counsel for the appellant, the plaintiff is not claiming any right

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in respect of item No.1 of the property which is morefully described in schedule ‘B’ of the partition deed. When such being the case, even though plaintiff has suffered decree in the said suit, the same is in respect of item No.1 of the schedule ‘B’ of the property and the appellant is not claiming any right in respect of the said property. When such being the case, the Trial Court ought not to have made such observation and the very approach of the Trial Court that plaintiff is claiming the relief of injunction in respect of property allotted in his favour in the partition deed which was registered on 19.08.2006 and the same is not disputed by the defendant. However, defendant in the written statement contended that, even prior to the registration of the partition deed, there was a release deed in favour of the father i.e., the brother of the plaintiff and released the property. In order to substantiate the said contention also, no document is placed before the Court and the Trial Court has not given reasons while passing the order, but rejected the application on the ground that release deed is disputed by the defendant and nothing is discussed in the order with regard to the release deed is concerned.

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In the absence of any such material, the question of accepting the contention of the defendant also does not arise and the Trial Court failed to take note of very pleading and schedule mentioned in the plaint, application and the partition deed and when the partition deed is not disputed by both the parties, the Trial Court ought not to have dismissed the application. Hence, it requires interference of this Court.

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In view of the discussion made above, I pass the

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following:

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ORDER

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(i) The miscellaneous first appeal is allowed.

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(ii) The impugned order is set aide and consequently, I.A.No.1 is allowed and relief as sough in I.A.No.1 is granted as against the respondent.

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Sd/(H.P.SANDESH) JUDGE

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List No.: 1 Sl No.: 34

Sri N Chandrashekaraiah v. Sri B Shivanandaiah

Case brief

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Sri N Chandrashekaraiah v. Sri B Shivanandaiah

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