M/S. Childrens Education Society (Regd) Vs Smt. Subbalakshmamma

M/S. CHILDREN’S EDUCATION SOCIETY (REGD.), A SOCIETY REGISTERED UNDER THE SOCIETIES REGISTRATION ACT, HAVING ITS OFFICE AT 30^TH MAIN, 1^ST PHASE, J.P.NAGAR, BENGALURU-560078, REPRESENTED BY ITS CHAIRMAN SRI S.N.V.L. NARASIMHA RAJU.

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…APPELLANT

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(BY SRI UDAYA HOLLA, SENIOR COUNSEL FOR SMT. MAYA HOLLA, ADVOCATE)

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AND:

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Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA

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SMT. SUBBALAKSHMAMMA AGED ABOUT 51 YEARS, D/O LATE GOWRAMMA, RESIDING AT INDALAVADI VILLAGE, KASABA HOBLI, ANEKAL TALUK, BENGALURU-562106. REPRESENTED BY HER GPA HOLDER SRI VENKATAPATHI S/O LATE VENKATARAMANAPPA, AGED ABOUT 63 YEARS, R/AT NO.43, IV CROSS, P.R.LAYOUT, B.G.ROAD, LAKKASANDRA, BENGALURU-560030.

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SMT. RAMAKKA, D/O LATE RAMAIAH, AGED ABOUT 89 YEARS,

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HC-KAR

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SRI SAMPANNA, S/O LATE ERAPPA, AGED ABOUT 91 YEARS,

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SRI S. SAMPAIAH, S/O SAMPANNA, AGED ABOUT 69 YEARS,

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SMT. SAROJAMMA, W/O SRI.SAMPAIAH, AGED ABOUT 47 YEARS,

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SRI SAMPATH, S/O SRI SAMPAIAH, AGED ABOUT 47 YEARS,

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SRI S. MANJUNATH, S/O SRI SAMPAIAH, AGED ABOUT 37 YEARS,

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MISS. S. SUMA, D/O SRI SAMPAIAH, AGED ABOUT 29 YEARS,

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MISS. LATHA, D/O SRI SAMPAIAH, AGED ABOUT 28 YEARS,

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SRI S. BHADRAPPA, S/O SRI SAMPANNA, AGED ABOUT 67 YEARS,

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SMT. RATHNAMMA W/O SRI BHADRAPPA, AGED ABOUT 59 YEARS,

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SRI. PRABHU, S/O SRI BHADRAPPA, AGED ABOUT 41 YEARS,

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SRI. LOKESH, S/O SRI BHADRAPPA, AGED ABOUT 39 YEARS,

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HC-KAR

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SRI SHIVRAJ, S/O SRI BHADRAPPA, AGED ABOUT 34 YEARS,

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SMT. PUSHPALATHA, D/O SRI BHADRAPPA, AGED ABOUT 36 YEARS,

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SRI SHIVARAJAPPA, S/O SRI SAMPANNA, AGED ABOUT 67 YEARS,

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SMT. NAGALAKSHMI, W/O SRI SHIVARAJAPPA, AGED ABOUT 65 YEARS,

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SMT. PREMA, D/O SRI SHIVARAJAPPA, AGED ABOUT 33 YEARS,

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SRI HARISH, S/O SRI SHIVARAJAPPA, AGED ABOUT 28 YEARS,

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SRI RAMAKRISHNAPPA, S/O SRI SAMPANNA, AGED ABOUT 64 YEARS,

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SMT. BHAGYAMMA, W/O SRI RAMAKRISHNAPPA, AGED ABOUT 54 YEARS,

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SRI GIRISH, S/O SRI RAMAKRISHNAPPA, AGED ABOUT 33 YEARS,

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MISS. ASHA, D/O SRI RAMAKRISHNAPPA, AGED ABOUT 29 YEARS,

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SRI SRINIVAS, S/O SRI SAMPANNA, AGED ABOUT 54 YEARS,

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HC-KAR

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SMT. REVAMMA, W/O SRI SRINIVAS, AGED ABOUT 51 YEARS,

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MISS. ANITHA, D/O SRI SRINIVAS, AGED ABOUT 28 YEARS,

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SMT. RATHNAMMA, D/O SRI SAMPANNA, AGED ABOUT 56 YEARS,

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RESPONDENT NO.2 TO 27 ARE RESIDING AT HARAGADDE VILLAGE, JIGANI HOBLI, ANEKAL TALUK, BENGALURU-560105.

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SRI BHARATH JAGANNATHAN, S/O LATE M. JAGANNATHAN, AGED ABOUT 44 YEARS,

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SMT. SELVE JAGANNATHAN, W/O LATE M. JAGANNATHAN, AGED ABOUT 62 YEARS,

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SMT. MENAKA KUMAR, D/O LATE M. JAGANNATHAN, AGED ABOUT 48 YEARS,

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RESPONDENTS NO.28 TO 30 ARE RESIDING AT NO.H-35, AVALAPALLI HUDCO, HOSUR-635109.

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…RESPONDENTS

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(BY SRI RAJATH D.V., ADVOCATE, FOR R-1;

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NOTICES TO R-2 TO R-30 ARE DISPENSED WITH V/O DATED 18/03/2026)

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THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF THE CPC AGAINST THE ORDER DATED 21.11.2025 PASSED ON I.A.NO.7 IN O.S.NO.26/2016 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND JMFC, ANEKAL (ANNEXURE-A) REJECTING THE I.A.NO.7 FILED UNDER ORDER 39 RULE 4 R/W SECTION 151 OF CPC., 1908.

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HC-KAR

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THIS APPEAL COMING ON FOR ‘ORDERS’, 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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This Miscellaneous First Appeal is preferred by defendant No. 30 against the order dated 21.11.2025 passed on I.A. No. 7 in OS No. 26/2016 on the file of the Principal Senior Civil Judge and JMFC, Anekal, (‘the trial Court’ for short), whereby the application filed by the appellant under Order XXXIX Rule 4 read with Section 151 CPC seeking modification of the order dated 20.01.2023 came to be rejected.

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BRIEF FACTS

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The appellant-defendant No. 30 is a registered educational society engaged in running several educational institutions, including a medical college and hospital. With the intention of establishing a medical college and allied facilities, the appellant purchased various extents of land, including the suit schedule property measuring 2 acres 32

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HC-KAR

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guntas in Sy. No. 161/1 under a registered sale deed. Upon such purchase, the appellant obtained necessary permission, conversion orders and sanction plan from the competent authorities and has been in possession and enjoyment of the property having established a Medical College and Hospital which has been functioning since the year 2014. The respondent No.1-plaintiff instituted the suit in OS No. 26 in the year 2016 seeking partition and separate possession claiming half share in the suit property claiming to be the granddaughter of late Ramaiah (allegedly claiming daughter of Smt. Gowramma alleged sister of Ramakka). Ramakka is defendant No. 1 who is the absolute owner in possession and enjoyment of the suit property and along with her children had jointly sold the suit schedule property to M. Jagannathan, (father of defendant Nos. 27 and 29 and husband of defendant No. 28), and the defendants 27 to 29 have sold under various sale deeds including under the sale deed dated 04.09.2012 in favour of the appellant/defendant No. 30. In the said

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HC-KAR

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suit, the plaintiff filed application under Order XXXIX Rule 1 and 2 CPC and the trial Court by order dated 20.01.2023 granted temporary injunction restraining the appellant from alienating the suit property and from putting up further construction over the same. Subsequently the appellant filed I.A. No. 7 under Order XXXIX Rule 4 seeking modification of the injunction order on the ground that substantial construction had already been put on, that only limited construction remained, and that the injunction was causing serious hardship. However, the trial Court by the impugned order dated 21.11.2025 rejected the application holding that no grounds are made out for modification.

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Learned Senior Counsel Sri Udaya Holla for the appellant/defendant No. 30 submits that the appellant has lawfully purchased the suit schedule property with the other adjoining lands from defendants 27 to 29, who in turn had derived through their predecessor, Late M. Jagannathan, who had purchased the same from Smt.

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HC-KAR

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Ramakka, the absolute owner in possession and enjoyment of the property. It is contended that pursuant to such lawful acquisition, the appellant has obtained conversion of the land for educational purpose and also secured commencement certificate from the competent authority, namely the Joint Director, Town and Country Planning Authority, Anekal for putting up construction. It is further submitted that the appellant has established and is running a full-fledged Medical College and Hospital under the name, “Oxford Medical College, Hospital and Research Centre”, with substantial infrastructure since 2014.

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3.1. Learned Senior Counsel submits that the plaintiff claiming to be the granddaughter of Ramaiah and daughter of Smt. Gowramma (allegedly sister of Ramakka) has instituted the present suit for partition and declaration challenging the sale deeds. It is contended that the very relationship of the plaintiff is seriously disputed. It is submitted that though an ex parte temporary injunction was initially granted restraining alienation, the appellant

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HC-KAR

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did not challenge the same, since it had no intention to alienate the property. However, after lapse of nearly several years by a common order dated 20.01.2023, the Trial Court had extended the injunction and further restrained the appellant from putting up any construction.

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3.2. It is contended that the trial Court itself observed that the plaintiff is required to prove her relationship thereby indicating serious doubt regarding her claim and therefore grant of temporary injunction was wholly unwarranted. It is submitted that the appellant has already commenced construction of an auditorium in the adjacent lands bearing Sy. Nos. 16/1, 16/2 and 16/5 and only a small portion of about 8 guntas of the suit property is involved, wherein the construction is at an advanced stage. It is submitted that plaintiff has been interfering with such construction, necessitating filing of I.A.No. 7 under Order XXXIX Rule 4 seeking modification. Learned Senior Counsel submits that the appellant has categorically undertaken in the affidavit filed along with

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HC-KAR

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the application that it will not claim any equity in the event

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the suit is decreed in favour of the plaintiff. Despite the same, the trial Court has rejected the application solely on the ground that there is no change in circumstances, without appreciating the material on record. Hence, it is contended that the impugned order is erroneous, capricious and perverse warranting interference.

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Per contra, learned counsel appearing for respondent No. 1/plaintiff contends that the trial Court after considering the pleadings and material on record has granted temporary injunction restraining the appellant from alienating and from putting up construction. It is contended that the appellant has not challenged the order of injunction dated 20.01.2023 and therefore the application for modification is not maintainable and it is submitted that no change in circumstances has been made out by the appellant so as to invoke Order XXXIX Rule 4 CPC and that the trial Court was justified in rejecting I.A.

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No. 7.

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HC-KAR

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This Court has carefully considered the

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submissions and perused the material on record. The impugned order cannot be sustained for the following reasons :

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Firstly, from the record, it is evident that the appellant has purchased the suit schedule property under a registered sale deed and has also established a Medical College and Hospital which has been functioning since 2014. The material placed on record prima facie discloses substantial construction has already been put up and a limited extent of construction is being carried out.

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Secondly, the trial Court itself has observed that the plaintiff is required to establish her relationship with the original owner which indicates that the very foundation of the plaintiff's claim is under a serious dispute. In such circumstances, the grant of absolute restraint against construction, particularly when substantial development has already taken place, is not justified.

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HC-KAR

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Thirdly, the appellant in the affidavit accompanying the application has specifically stated at para Nos. 7, 8, 9 and 13 as under :

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“7. I submit that defendant No.30 has constructed a Medical College and Hospital in the suit schedule land along with the adjoining lands all together measuring about 30 acres. The same was inaugurated way back in 2014 only. There are few blocks which are being constructed, repaired and altered to suit the requirement of the hospital and medical college as per the guidelines of the statutory bodies.

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8. On 20th March when the society tried to put up a construction over the property abutting the schedule property, with a sheer avarice and with the malafide intention of blackmailing the society, plaintiff filed the above false and frivolous suit for partition. The subject matter of the suit is 2 acres 32 guntas of land in sy.no.161/1 which is part of the property owned by the society as stated herein above. By the time the suit was filed, construction had been put up on a part of the suit schedule property bearing sy.no.161/1 and another portion of the suit schedule property was vacant.

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HC-KAR

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9. The schedule property measures about 2 acres 32 guntas including 15 guntas kharab out of which almost 1 acre 34 guntas is vacant and been used for the medical college and hospital since 2014. The defendant no.30 is putting up an auditorium in Sy. No.16/1, 16/2, 16/5 and 16/6 which is abutting to the schedule property. Photos reflecting the same and the sanction development plan is produced herewith as DOCUMENT No.1 and 2 .

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x x x

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13. I submit that in view of change of circumstances the defendant no.30 is filing the application seeking for modification of the order with respect to putting up further construction only. The defendant no.30 undertakes that they shall not claim any equity with respect to construction in case the plaintiff succeeds in the above case.”

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(emphasis supplied)

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The appellant has specifically undertaken in the affidavit that it will not claim any equity with respect to the construction in the event the suit is decreed in favour of the plaintiff. Such undertaking sufficiently safeguards the interest of the plaintiff.

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HC-KAR

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Fourthly, the reasoning of the trial Court that there is no change in circumstances is unsustainable, inasmuch as the appellant has demonstrated that the construction is already at an advanced stage and that only portion of the suit property is involved. The trial Court has failed to consider this crucial aspect.

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The balance of convenience clearly lies in favour of the appellant as restraining further construction would cause serious hardship and financial loss, whereas permitting construction subject to the undertaking would not prejudice the rights of the plaintiff. In view of the above, this Court is of the considered view that the impugned order suffers from non-consideration of the material facts and warrants interference. Accordingly, this Court pass the following:

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ORDER

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(i) The Miscellaneous First Appeal is allowed.

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HC-KAR

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(ii) Order dated 21.11.2025 passed on I.A. No. 7 in OS No. 26/2016 on the file of the Principal Senior Civil Judge & JMFC, Anekal, is hereby set aside.

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(iii) I.A. No. 7 filed by the appellant/defendant

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No. 30 is hereby allowed in part .

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(iv) The appellant is permitted to put up construction over the suit schedule property. However, such construction is subject to the condition that the appellant shall not claim any equity in respect of the construction put up in the event the suit is decreed in favour of the plaintiff in terms of the affidavit filed before the trial Court.

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(v) All the rights and contentions of the parties are kept open to be adjudicated in the suit.

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Sd/-

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____________________ JUSTICE K.S. HEMALEKHA

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CKL

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List No.: 1 Sl No.: 73

M/S. Childrens Education Society (Regd) v. Smt. Subbalakshmamma

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M/S. Childrens Education Society (Regd) v. Smt. Subbalakshmamma

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