Sri T C Rajanna Vs Sri Pillappa

THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC., AGAINST THE ORDER DATED 08.02.2021 PASSED IN O.S.NO.439/2016 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, DEVANAHALLI, REJECTING THE APPLICATION FILED BY PLAINTIFFS UNDER ORDER 39 RULE 1 AND 2 OF CPC.

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IN MFA NO.3063/2021

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BETWEEN:

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SRI PILLAPPA S/O LATE HANUMAIAH AGED ABOUT 65 YEARS,

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SMT. PARVATHAMMA W/O LATE SONNAPPA AGED ABOUT 55 YEARS,

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SRI PRAKASH S/O LATE SONNAPPA AGED ABOUT 38 YEARS,

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SMT. T.S. LAKSHMI D/O LATE SONNAPPA AGED ABOUT 39 YEARS,

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SRI T.S. ANIL KUMAR S/O LATE SONNAPPA AGED ABOUT 37 YEARS,

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ALL ARE RESIDING AT THIMMASANDRA VILLAGE JALA HOBLI-560051 BANGALORE NORTH (ADDL.) TALUK.

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...APPELLANTS

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(BY SRI P.M. NARAYANA SWAMY, ADVOCATE)

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AND:

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SRI T.H. PATALAPPA S/O LATE HANUMAIAH AGED ABOUT 85 YEARS,

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SRI T.C. RAJANNA S/O ALTE CHIKKANAGAPPA AGED ABOUT 58 YEARS,

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HC-KAR

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SRI T.C. RAMU S/O LATE CHIDKKANAGAPPA AGED ABOUT 56 YEARS,

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SRI T.C. JAYANNA S/O LATE CHIKKANAGAPPA AGED ABOUT 54 YEARS,

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SRI T.C. VIJAYANNA S/O LATE CHIKKANAGAPPA AGED ABOUT 52 YEARS,

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SRI T.C. SHANTHAMURTHY S/O LATE CHIKKANAGAPPA AGED ABOUT 42 YEARS,

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RESPONDENT NOS.1 TO 6 ARE R/AT THIMMASANDRA VILLAGE, JALA HOBLI, BANGALORE NORTH (ADDL.) TALUK.

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SMT. AARADHANA JHUNJHUNWALA D/O BIMAL KUMAR PODDAR W/O SUDHIR JHUNJHUNWALA, AGED ABOUT 50 YEARS,

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ABHISHEK PODDAR S/O SRI BIMAL KUMAR PODDAR AGED ABOUT 47 YEARS,

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RESPONDENT NOS.7 & 8 ARE R/AT NO.3/1/1, ALI ASKAR ROAD, BANGALORE-560052.

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...RESPONDENTS

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(BY SRI ROHAN KOTHARI, ADVOCATE FOR R-7 & R-8; V/O. DATED 13.08.2021 NOTICE TO R-1 TO R-6 ARE DISPENSED WITH)

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THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC., AGAINST THE ORDER DATED 08.02.2021 ON I.A.NO.1 IN O.S.NO.439/2016 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, JMFC, DEVANAHALLI, REJECTING THE APPLICATION FILED UNDER ORDER 39 RULE 1 AND 2 OF CPC.

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HC-KAR

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THESE APPEALS COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE K.S. HEMALEKHA

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ORAL JUDGMENT

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These Miscellaneous First Appeals are directed against the order dated 08.02.2021 passed on I.A.No.1 in O.S.No.439/2016 on the file of the I Additional Senior Civil Judge and JMFC, Devanahalli (‘Trial Court’ for short), whereby the application filed under Order XXXIX Rules 1 and 2 of CPC seeking temporary injunction has been rejected.

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MFA.No.3063/2021 is preferred by the plaintiffs

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whereas MFA.No.4254/2021 is preferred by defendant Nos.2 to 6. In both the appeals, the contesting respondents are defendant Nos.7 and 8, who claim right, title and possession over the suit schedule property under a registered sale deed dated 13.07.2005 and gift deed dated 10.12.2009.

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HC-KAR

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Since both the appeals arise out of the same

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order and involve common questions of fact and law, they

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are taken up together for consideration and disposal.

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Brief facts:

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The Genealogical tree is under:

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Hanumaiah (common propositus)

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Doddakempamma Chikkakempamma
(1 st wife) (2 nd wife)
T.H. Patalappa T.H. Chikkanagapa Sonnappa Pillappa
(defendant No.1) (who died leaving behind (died leaving behind (plaintiff No.1)
defendant Nos.2 to 6) plaintiff Nos.2 to 5)

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Defendant No.7 is the purchaser of property

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bearing old Sy.No.340, new Sy.No.340/1 and Sy.340/2 measuring total extent of 7 acres 6 guntas situated at Bettahalasuru Village, Jala Hobli, Bengaluru North (hereinafter referred to as “suit property” for short). The suit in O.S.No.439/2016 is one for partition and separate possession.

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HC-KAR

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The plaintiffs contended that the suit property originally belonged to the propositus Hanumaiah, and that defendant No.1 being the elder member of the family obtained the grant of the suit property in his name in the year 1984, which enures to the benefit of the entire joint family. It is the case that defendant No.1 without authority alienated the property in favour of defendant No.7 under registered sale deed dated 13.07.2005 and defendant No.7 executed a gift deed dated 10.12.2009 in favour of defendant No.8. According to the plaintiffs, these transactions are not binding on their share, and seek partition and consequential reliefs. Pending suit, the application under Order XXXIX Rules 1 and 2 was filed seeking to restrain the defendants from alienating the suit property. The Trial Court upon consideration, rejected the application against which the present appeals.

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Learned counsel for the appellants in both the

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appeals (plaintiffs and defendant Nos.2 to 6) submits that:

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8 -

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HC-KAR

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i. The suit property is a joint family property and the grant in favour of defendant No.1 was on behalf of their family.

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ii. The Trial Court failed to appreciate that a prima facie case exists in favour of the appellants.

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iii. The finding that the suit is one for partial partition is erroneous and contrary to law.

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iv. The Trial Court did not properly consider the balance of convenience and irreparable injury as further alienation would defeat the rights of the appellants.

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v. The alienation in favour of defendant Nos.7 and 8 are not binding and subject to the result of the suit.

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vi. That the impugned order suffers from nonapplication of mind and is liable to be set aside.

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Per contra , learned counsel for respondent

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Nos.7 and 8 submits that:

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HC-KAR

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i. The suit property is a self-acquired property of defendant No.1, who had obtained occupancy rights and validly alienated the same.

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ii. Respondent No.7 is a bona fide purchaser under the registered sale deed dated 03.07.2005 and respondent No.8 is a donee under registered gift deed of the year 2009 and both are in lawful possession.

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iii. The appellants have suppressed material facts particularly the earlier suit in O.S.No.600/2011, where 72 properties were partitioned by way of a compromise.

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iv. The present suit property was not included in the earlier suit and no explanation is offered, rendering the present suit one for partial partition which is not maintainable.

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v. The appellants have not sought cancellation of the sale and gift deeds of the plaintiffs and hence suit itself is defective that there is no

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HC-KAR

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prima facie case and the Trial Court has rightly exercised discretion in rejecting the application.

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This Court has considered the rival submissions

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and perused the material on record. The point that arises for consideration is:

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“Whether the appellants have made out a case to interfere with the order of the Trial Court rejecting the application for temporary injunction?”

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At the outset, it is to be noted that the present

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appeals arise against the order passed on I.A.No.1 under Order XXXIX Rules 1 and 2 CPC, whereby the Trial Court has refused to grant temporary injunction. The scope of interference by the Appellate Court in such matter is no longer a res integra . The Apex Court in Wander Ltd. and Another Vs. Antox India Pvt. Ltd.¹ (Wander Ltd.) has

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held at paragraph No.14 as under:

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1 1990 (Supp) SCC 727

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HC-KAR

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“14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph: (SCR 721)

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HC-KAR

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“... These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton ‘...the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case’.”

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The appellate judgment does not seem to defer to this principle.”

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The Apex Court has held that an appeal against

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the exercise of discretion is an appeal on principle, and the Appellate Court would not substitute its own discretion for that of Trial Court unless the discretion exercised is shown to be arbitrary, capricious or perverse or where the Trial Court has ignored the settled principles governing grant or refusal of injunction.

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In the present case, the Trial Court upon consideration of the pleadings and materials on record has recorded a finding that the plaintiffs have failed to

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HC-KAR

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establish a prima facie case. The Trial Court has also taken

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note of the earlier compromise in O.S.No.600/2011 and subsequent decree of 2011, wherein the partition was effected in respect of 72 properties by way of compromise and admittedly the suit property was not included in the earlier partition and observed that the present suit is instituted suppressing the material fact with an intention to overcome the earlier compromise. Further, the Trial Court noticed that the revenue records stand in the name of defendant No.1 and that there is no prima facie material to demonstrate that the suit property was cultivated by the propositus Hanumaiah so as to constitute a joint family property. Upon such appreciation, the Trial Court has exercised its discretion in refusing injunction.

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From the material on record, it is not in dispute that the parties to the present proceedings, plaintiffs and defendant Nos.2 to 6, were parties in earlier suit in O.S.No.600/2011, wherein partition was sought in respect

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as many as 72 properties and said suit came to be

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HC-KAR

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disposed of by way of a compromise decree. However, the present suit is only in respect of the suit property which admittedly has been alienated under a registered sale deed dated 13.07.2005 much prior to the said compromise and no explanation has been offered by the plaintiffs as to why the said suit property was excluded from the earlier comprehensive partition suit. The non-disclosure of the earlier proceedings coupled with the omission of the present suit property therein clearly amounts to suppression of material facts.

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This Court, sitting in an appeal, does not find that the discretion exercised by the Trial Court suffers from arbitrariness or perversity, nor is it shown that the Trial Court has ignored any settled principles governing grant of temporary injunction. Merely because another view is possible, this Court would not be justified in interfering with the well-reasoned order of the Trial Court. Accordingly, the point framed for consideration is answered and this Court pass the following:

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HC-KAR

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ORDER

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i. The Miscellaneous First Appeal is hereby dismissed .

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ii. The order dated 08.02.2021 passed on I.A.No.1 in O.S.No.439/2016 on the file of the I Additional Senior Civil Judge and JMFC, Devanahalli is hereby confirmed .

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Sd/-

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____________________ JUSTICE K.S. HEMALEKHA

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AT List No.: 1 Sl No.: 65

Sri T C Rajanna v. Sri Pillappa

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Sri T C Rajanna v. Sri Pillappa

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