Disposed

Smt Bylamma v. Sri Hanumantharaju

Karnataka HC21 Aug 2024MFA/854/2024

Case brief

AI extract

What is this about?

Appeal against rejection of temporary injunction applications in a suit-restoration petition over ancestral joint family property. The High Court held the rejection illegal since injunction could issue under Section 151 CPC despite dismissal for default, and continued the status quo order operating in the parallel injunction suit.

What did the court decide?

Rejection of I.As.no.1 and 2 held illegal; status quo order from O.S.no.262/2023 adopted and continued until disposal of Misc.no.46/2022

Smt Bylamma Vs Sri Hanumantharaju — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:33609 MFA No. 854 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 21^ST DAY OF AUGUST, 2024

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BEFORE

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THE HON'BLE MR JUSTICE RAVI V HOSMANI MISCELLANEOUS FIRST APPEAL NO. 854 OF 2024 (CPC)

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BETWEEN:

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SMT. BYLAMMA, W/O SATHYANARAYANA, D/O GANGA BYLAIAH, AGED ABOUT 54 YEARS, R/A PEMMANAHALLI VILLAGE, SOMPURA HOBLI, NELAMANGALA TALUK, BANGALORE RURAL DISTRICT-562 123.

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…APPELLANT

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[BY SRI MURALI BABU M., ADVOCATE (PH)]

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AND:

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1 . SRI HANUMANTHARAJU, S/O LATE GANGA BYLAIAH, AGED ABOUT 52 YEARS, R/A SHANTHAVERI VILLAGE AND POST LINGADAHALLI HOBLI, TARIKERE TALUK, CHIKKAMAGALURU DIST-577 228.

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Digitally signed by GEETHAKUMARI PARLATTAYA S Location: High Court of Karnataka

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2 . SRI PRAKASH, S/O LATE GANGA BYLAIAH, AGED ABOUT 47 YEARS, R/A SHANTHAVERI VILLAGE AND POST, LINGADAHALLI HOBLI, TARIKERE TALUK, CHIKKAMAGALURU DIST-577 228.

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3 . SRI K.G. MANJUNATH, S/O GANAPAIAH PATEL, AGED ABOUT 73 YEARS, R/A NEAR RAILWAY STATION ROAD, BIRUR TOWN, KADUR TALUK, CHIKKAMAGALURU DISTRICT-577 548.

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4 . SMT. GOWRAMMA, W/O GARUDAPPA @ GARUDARANGAIAH, D/O LATE GANGA BYLAIAH, AGED ABOUT 49 YEARS, R/A BINDUSARA VILLAGE, BAVIKERE POST, LAKOHALLI HOBLI, TARIKERE TALUK, CHIKKAMAGALURU DISTRICT-577 228.

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5 . SMT.ANUSUYA, W/O VENKATESH, D/O LATE GANGA BYLAIAH, AGED ABOUT 45 YEARS, R/A GONIBEEDU VILLAGE, SHANKARAGATTA POST, TARIKERE TALUK, CHIKKAMAGALURU DISTRICT-577228.

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6 . MANJUNATH @ PAINT MANJU, S/O GANGAIAH, AMENDEMENT CARRIED AGED ABOUT 43 YEARS, V/0 DTD. 18.3.2024 R/O VAJJARAHALLI, NELAMANGALA TOWN.

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AND ALSO R/A YARAPPANAPALYA VILLAGE, THYAMAGONDLU HOBLI, NELAMANGALA TALUK, BENGALURU RURAL DISTRICT.

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…RESPONDENTS

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[BY SRI M.S. VARADARAJAN, ADVOCATE FOR R3 (PH); SRI T. SHESHAGIRI RAO, ADVOCATE FOR R6 (PH)]

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THIS MISCELLANEIOUS FIRST APPEAL FILED UNDER ORDER 43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DATED 01.02.2024 PASSED ON I.A.nos.1 AND 2 IN MISC.NO.46/2022 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, NELAMANGALA, DISMISSING THE I.A.nos.1 AND 2 READ WITH SECTION 151 OF CPC.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 10.06.2024, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI

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CAV JUDGMENT

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Challenging order dated 01.02.2024 passed by Additional Senior Civil Judge and JMFC, Nelamangala, in MISC.no.46/2022 on I.As.no.1 and 2, this appeal is filed.

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Sri Murali Babu, learned counsel for appellant submitted, appellant was plaintiff in O.S.no.386/2014 filed for partition, cancellation of Exchange Deed dated 01.06.2009 and permanent injunction etc. In said suit, she had filed application for temporary injunction restraining defendants from alienating suit properties. It was submitted, trial Court had initially granted ex-parte ad interim order of temporary injunction, restraining defendants no.1 and 4 from alienating suit properties. However, due to her non-appearance on 27.10.2022, suit came to be dismissed for default. Immediately thereafter, she filed Misc.no.46/2022 for restoration of suit.

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In meanwhile, when defendant no.4 taking advantage of dismissal of suit, attempting to alienate suit

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property, plaintiff filed I.A.no.1 for temporary injunction against alienation. Likewise, respondent no.2 was trying to change nature of suit property. Therefore, plaintiff had filed I.A.no.2 for temporary injunction restraining him from changing nature of suit property, but, trial Court rejected both applications on untenable grounds.

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It was submitted, on 20.12.2023, trial Court granted ex-parte order of temporary injunction against alienation and from changing nature of suit property. However, on 22.12.2023 G. Manjunath, GPA holder of K.G. Manjunath, being well aware of interim injunction, executed registered sale deed in respect of suit property, apparently in violation of interim injunction. Thereafter, on 26.12.2023, G.Manjunathpurchaser sought to illegally interfere through rowdy elements. He also began to change nature of suit properties.

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Hence, plaintiffs filed O.S.no.262/2023 on

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28.12.2023 for permanent injunction, before Vacation Bench. On 30.12.2023, trial Court directed parties to maintain statusquo till matter could be taken up before Regular Court. Later, even regular court ordered continuation of status-quo till disposal of application for restoration. It was submitted,

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originally suit properties were ancestral joint family properties and as they were not partitioned, plaintiff's were in joint possession and enjoyment of property. After death of Smt.Mahimakka, defendant no.1 got changed revenue records behind back of plaintiff in collusion with revenue officials. And taking note of bare assertion about purchase of suit properties by G.Manjunath and record of rights showing his name, trial Court held plaintiff had failed to establish prima-facie case. It was submitted, said reasoning was wholly untenable and would lead to multiplicity of proceedings.

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It was submitted, mere entry in revenue records would not infer possession nor create or extinguish title. It was submitted, plaintiff had registered complaint with police, who had visited suit property. Photographs taken at that time, indicated cultivation of suit property by plaintiff, but, same was ignored by trial Court. Hence, on said ground, plaintiff sought for allowing appeal.

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In support of his submissions, learned counsel relied on decision of Hon’ble Supreme Court in Surendra Kumar v. Phoolchand through LRs & another reported in (1996) 2 SCC 491, for proposition that in case of dispute as

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to its nature as joint family property, a presumption had to be drawn that it was joint family property. Referring to ratio in Suraj Lamp & Industries Private Ltd., v. State of Haryana & another reported in (2012) 1 SCC 656 , it was contended, alienation of immovable property by execution of GPA was held not to convey valid title.

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8. It was submitted, in Gangubai Babiya Chaudhary

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& Others v. Sitaram Bhalchandra Sukhtankar & others reported in AIR 1983 SC 742, Hon’ble Supreme Court held that it would be appropriate to order status-quo regarding nature of entire property, in case of doubt. He also relied on decisions in Chandu Lal v. Municipal Corporation of Delhi reported in AIR 1978 Del. 174, and Smt.Shakuntalamma & others v. Smt.Kanthamma & others reported in ILR 2014

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KAR 6025 , to highlight principles for grant of temporary injunction under Order XXXIX Rules 1 and 2 of CPC.

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Decision in MFA no.6094/2023 disposed of on

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19.01.2024, was relied to contend that additional evidence was permissible even in appeal against rejection of application for temporary injunction. It was submitted, execution of sale deed in violation of order of temporary injunction would be per

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se illegal, relying on decision in Siddagangaiah v. N.K.Giriraja Shetty reported in AIR 2018 SC 3080. And, as per ratio in Virupegowda v. Shankaregowda reported in ILR 2009 KAR 1867 , it was contended, grant of occupancy rights in name of one member of joint family, would inure to benefit of all members and that an inam land on grant would become partible.

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On other hand, Sri Varadarajan learned counsel for defendant no.4 sought dismissal of appeal. It was submitted, plaintiffs’ grandmother Smt.Mahimakka was absolute owner of suit properties. On her death, defendant no.1 - Sri Gangabylappa inherited same as absolute owner under Section 15 of Hindu Succession Act. Thereafter, he executed Deed of Exchange with defendant no.4, exchanging 4 Acres 17 guntas of suit property for 29 Acres 4 guntas of various lands in Siddapura village. Consequently, defendant no.4 had become absolute owner of suit property and therefore, suit was untenable.

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It was submitted, O.S.no.929/2009 was earlier filed by defendant no.3 for partition, which was dismissed after fullfledged trial. It was submitted, plaintiffs herein were parties to

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said suit, they would be bound by it, especially finding that plaintiff had failed to establish suit property as joint family property. It was submitted, in R.F.A.no.2316/2019 filed against dismissal of suit, defendant no.4 had obtained order of temporary injunction protecting his possession against interference. Relying on decision in Smt.Mahiboobi v. Govind M. Haripalle reported in 2017 (3) KLJ 230 , it was contended decree in earlier suit would bar subsequent suit. And, though plaintiffs contend about alienation of suit property to be in violation of temporary injunction, it was ex-parte order and purchaser was unaware of it. And, there was no material to substantiate knowledge. Hence purchase was valid.

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Sri T. Sheshagiri Rao, learned counsel for respondent no.6 submitted, purchaser as absolute owner was in possession of suit property and not plaintiffs. Suit property was owned by Smt.Mahimakka, on regrant. After her death, defendant no.1 inherited it and exchanged it against other lands long back, with defendant no.4. Respondent no.6 had purchased it from defendant no.4. At this belated stage, Exchange could not be questioned. He relied on ratio in M/s Patel Enterprises v. M.P. Ahuja reported in ILR 1992 KAR

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3772, for proposition that prima facie case includes nature of suit and it’s maintainability. And if suit was not maintainable, temporary injunction cannot be granted.

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Heard learned counsel and perused impugned

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order.

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From above, main ground of challenge is perversity of conclusion of trial Court. Therefore, point that arises for consideration is:

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“Whether impugned order suffers from perversity and calls for interference?”

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Impugned order reveals, trial Court referred to pleadings and contentions, framed proper points for consideration and passed reasoned order. Challenge is on ground of perversity of conclusions. Therefore, reference to reasons assigned would be necessary. As pointed out, trial Court rejected application on following grounds. Firstly , on ground that once suit was dismissed whether for default or otherwise, all interim orders would come to an end and as there was no pending suit, there was no question of grant of any interim orders. And secondly , on ground that plaintiff

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admitted sale of suit property by defendant no.4 in favour of respondent no.6.

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Insofar as first reason, Rules 1 and 2 of Order XXXIX of CPC appear applicable only to ‘suit’ and not ‘proceeding’ and since suit was dismissed for default and I.As.no.1 and 2 were filed in application filed under Order IX of CPC for restoration. On maintainability of such applications, High Court of Gauhati in Reboti Ray v. Sashi Kanta Budhia , reported in 2006 SCC OnLine Gau 124 , has held though application under Order XXXIX Rules 1 and 2 would not be maintainable, there was no impediment to grant injunction under Section 151 of CPC. Similar view is expressed in T. Panneerselvam v. A. Baylis , reported in 1986 SCC OnLine Mad 57 , wherein High Court of Madras held notwithstanding wordings of Order XXXIX Rules 1 and 2 of CPC, Court had power under Section 151 of CPC to grant temporary injunctions.

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Division Bench of High Court of Calcutta in Raj Kumar Rowla v. Manabendra Banerjee and Ors. reported in 2007 SCC OnLine Cal 164 : AIR 2007 Cal 154 , after referring to Sections 94 (c), 141, and 151 of CPC, held

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provisions of Order XXXIX Rules 1 and 2 were procedural in nature and applied even to proceedings under Order IX and appeal against such orders would be maintainable under Order XLIII. Though, trial Court referred to decision in case of Jagadhari and Ors. v. Vth Addl. District Judge, Azamgar reported in AIR 1992 All 368 , no ratio emerges from it. Therefore, observation by learned trial Judge, refusing to entertain application for temporary injunction amounts to abdication of jurisdiction vested in it.

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On second reason, plaintiff has indeed filed I.A. under Order XXXIX Rule 2A of CPC against defendant no.4 for alienating suit property after grant of ex-parte order of temporary injunction in Misc.no.46/2022. Merely on ground that plaintiff was aware of sale which was during pendency of suit would not be a justifiable ground to reject application. Even if it were to be contended that, trial Court failed to take note of sale by defendant no.4 being in violation of order of temporary injunction would be illegal as held in Siddagangaiah ’s case (supra), larger Bench decision of Apex Court in Mulraj v. Murti

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Raghunathji Maharaj , reported in 1967 SCC OnLine SC 260 , has held an order of injunction would become effective on

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communication. In instant case, trial Court granted ex-parte ad-interim order of temporary injunction on 20.12.2023. Alienation of suit property by defendant no.4 to defendant no.6 was on 22.12.2023, but no records submitted about date of communication of said order. In fact, application under Order XXXIX Rule 2A of CPC is stated to be filed and pending. Therefore, plaintiff cannot seek to derive any advantage from said fact at this stage. In any case, as rejection of application is not solely on that ground.

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Insofar as submission of defendants alleging plaintiff was guilty of suppression of material fact, it is seen, plaintiff has not pleaded about filing of O.S.no.928/2009 and its dismissal. Judgment and decree therein shows suit was filed by defendant no.3 herein not only against other defendants, but also plaintiff herein. In fact, impugned order reveals ground of suppression was urged, taken note of, but not discussed while passing impugned order. Whether they were aware of suit and yet suppressed same, would require to be considered. But, as per decree, plaintiff herein was unrepresented , prima facie at this stage, application for temporary injunction filed by plaintiff cannot be rejected on ground of suppression of material fact.

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Likewise, fact that, in R.F.A.no.2316/2019 filed against said judgment and decree, this Court rejected application for temporary injunction filed by defendant no.3 herein against all other parties, and defendant no.4 herein obtaining temporary injunction for protection of his peaceful possession of suit property were not canvassed. Therefore, impugned order cannot be faulted on said ground.

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From records, it is seen, plaintiff herein had filed O.S.no.386/2014 for partition etc in respect of Sy.no.71 of Pemmanahalli village, which was dismissed for default and Misc.no.46/2022 under Order IX Rule 4 of CPC is filed for its restoration. During its pendency, plaintiff filed O.S.no.262/2023 for permanent injunction restraining defendants no.4 and 6 from interfering with peaceful possession of plaintiff. In said suit, interim order directing parties to maintain status-quo till disposal of Misc. petition is granted. Thereafter, in Misc.no.46/2022, plaintiff filed I.As.no.1 and 2 under Order XXXIX Rules 1 and 2 of CPC for restraining defendants from alienating and changing nature of suit property, which is rejected under impugned order. Admittedly, suit property in O.S.no.262/2023 is same as in O.S.no.386/2014 and in

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O.S.no.928/2009. Though, defendant no.4 herein has obtained order of temporary injunction against interference with peaceful possession, against defendant no.3 in RFA no.2316/2019 on 12.10.2023, much prior to same, plaintiff had benefit of interim injunction against alienation in O.S.no.386/2014 from 05.07.2014, till its dismissal for default on 27.10.2023. In Misc.no.46/2022, ex-parte order of temporary injunction against alienation and changing nature of suit property was granted on 20.12.2023. Subsequently, in O.S.no.262/2023, interim order of status quo was granted on 30.12.2023 to be in force until disposal of Misc.no.46/2022. It is thus seen that temporary injunction has been in existence for nearly ten years from date of suit except for brief period during which is has been alienated by defendant no.4 to defendant no.6.

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In view of above discussion and taking note of law laid down in Raj Kumar Rowla ’s case (supra), point for consideration is answered partly in affirmative holding that rejection of IA.s no.1 and 2 filed by plaintiff in Misc.no.46/2022 as illegal and untenable. However, as plaintiff has already obtained order of temporary injunction of status quo in O.S.no.262/2023 with regard to very same suit property and

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