Ammayamma and Others vs Papamma and Others

B.S. Patil, J.—Order dated 09.07.2015 passed by the Court below in O.S. No. 639/2014 dismissing I.A. No. 1 filed under Order XXXIX Rules 1 & 2 read with Section 151 CPC by the plaintiffs - appellants herein and allowing I.A. No. 3 filed by defendant No. 9 under Order XXXIX Rule 4 read with Section 151 CPC vacating the order of status-quo granted is called in question in this appeal.

Appellants are the plaintiffs. Whereas, respondents are defendants 1 to 10 in the Court below. The suit is filed by the plaintiffs seeking partition and separate possession of their share in the suit schedule properties along with a declaratory relief that the Sale Deeds dated 24.09.2005, 17.04.1995, 20.02.1972, 17.10.1968, 26.04.1966, 15.05.1964 and 22.07.1965 executed in respect of schedule properties were not binding on the plaintiffs'' share and that defendants 5 to 10 - purchasers of the property did not derive any right, title or interest over the properties by virtue of the said Sale Deeds. Plaintiffs have also sought for permanent injunction to restrain defendant No. 10 from alienating or encumbering the suit schedule properties.

According to the plaintiffs, one Chinnipiga @ Chinnappa was the propositus. Appellant No. 1 - plaintiff No. 1 (wife of Muniyellappa) and respondent No. 1 - defendant No. 1 (wife of Munithanappa) are his daughters-in-law. Appellant No. 2 - plaintiff No. 2 is the daughter of appellant No. 1 - plaintiff No. 1. Whereas, respondent No. 4 - defendant No. 4 is the son of Chinnipiga. It is urged by the plaintiffs that Chinnipiga had three sons by name Munithanappa, Muniyellappa and Muniyappa. Plaintiffs along with defendants 1 to 4 claimed to be members of the family of the propositus Chinnipiga.

According to the plaint averments, the suit properties were thoti inam lands and upon the death of Chinnipiga, family members consisting of his sons and their heirs have succeeded to his estate. It is their further case that land bearing Sy. No. 63/2 of Thubarahalli Village, Varthur Hobli, Bangalore South Taluk which is the subject matter of this suit totally measured 3 acres 3 guntas. This property originally belonged to one Annaiah Reddy and he sold the same to one Ramaiah on 15.05.1964, who in turn sold the same to Chinnipiga under registered Sale Deed dated 22.07.1965. The said Chinnipiga along with his son Munithanappa sold 1 acre of land comprised in Sy. No. 63/2 in favour of Eramma on 22.07.1965. Another extent of 1 acre was sold by Chinnipiga on 26.04.1966 in favour of Chikkanaga Reddy and remaining extent of 1 acre 3 guntas was sold again in favour of Chikkanaga Reddy on 17.06.1968.

It is thus clear from the plaint averments and the materials on record that Chinnipiga sold the entire extent of land comprised in Sy. No. 63/2 to various persons during 1965 to 1968. After the death of Chikkanaga Reddy, his widow Smt. Munirathnamma succeeded to the property. The said Munirathnamma and Eramma, who had purchased another portion of the property, sold the property in favour of Yeshwanth Shenoy - defendant No. 8 on 17.04.1995. Defendant No. 8 has further sold the suit schedule property to defendant No. 10 Smt. Savitha Nagpal on 24.09.2005. Defendant No. 10 has executed a registered Gift Deed dated 10.02.2010 to an extent of 2 acres out of schedule property in favour of his sister defendant No. 9 - Smt. Kavitha Malani. Balance extent of 1 acre 3 guntas was sold by defendant No. 10 to V.S. Realtors Private Limited as per registered Sale Deed dated 11.02.2010. It is on record that V.S. Realtors Private Limited - defendant No. 9 has entered into a Joint Development Agreement on 11.02.2010 with the Company known as Tranquil Reality Private Limited.

Contention urged by the plaintiffs is that Chinnipiga had no absolute right over the property in question. He could not have sold the property in favour of Eramma on 22.07.1965 and in favour of Chikkanaga Reddy on 26.04.1966 and 17.10.1968. According to the plaintiffs, property in question was a joint family property wherein all the family members had share. Therefore, neither Chinnipiga on his own, nor along with one of his sons would have executed the Sale Deeds during the year 1965 to 1968 in favour of third parties. It is in this background, plaintiffs have sought for declaration that these Sale Deeds were not binding on them. According to the plaintiffs, they have continued to be in possession of the property. Therefore, they have sought for an order of temporary injunction by filing I.A. No. 1 to restrain the defendants from alienating the property and developing the same in any manner.

Application filed was resisted by the contesting defendants. Defendant No. 9 filed an application under Order XXXIX Rule 4 read with Section 151 CPC seeking vacation of the ex-parte interim order of status-quo granted against the defendants. It was contended by her that the Company by name Tranquil Reality (P) Limited which was a subsidiary of Vaswani Group had filed O.S. No. 4407/2014 against the plaintiff herein and two others seeking relief of permanent injunction to restrain them from interfering with the possession and enjoyment of the suit property or with regard to the construction activity etc. In the said suit, the Tranquil Reality Private Limited had also filed an application under Order XXXIX Rules 1 & 2 CPC seeking an order of injunction against the plaintiffs and other defendants. In the said suit, which was filed on 13.06.2014, an ad-interim order of temporary injunction was granted on 03.07.2014 restraining the plaintiffs in the present suit from interfering with the possession of Tranquil Reality Private Limited in respect of the very same property. Plaintiff No. 1 herein, who had the knowledge of the said ex-parte order of temporary injunction, had entered appearance in the said suit and took time for filing objections and having full knowledge of the same, by suppressing the said fact, sought for temporary injunction in her favour and obtained an ex-parte order of status-quo in the present suit on 02.08.2014.

It was further contended by defendant No. 9 that the temporary injunction granted in O.S. No. 4407/2014 against plaintiff No. 1 herein was made absolute on 08.12.2014 thereby restraining the plaintiff herein or persons claiming through her from interfering with the possession and enjoyment of the schedule property by Tranquil Reality Private Limited. It was thus contended that when the plaintiff herein had already suffered an interim order of temporary injunction after contest in the suit O.S. No. 4407/2014, she was not entitled for grant of any equitable relief of temporary injunction in the present suit that too by suppressing the orders passed in the suit O.S. No. 4407/2014.

Apart from the above, defendant No. 9 narrated in the affidavit filed in support of the application the transactions that have taken place in respect of the property right from the year 1964 and how the property changed hands. It is also contended that by virtue of Joint Development Agreement entered into on 11.02.2010, Tranquil Reality Private Limited intended to construct residential apartments in the schedule property along with another property comprised in Sy. No. 62 of Thubarahalli. In that regard, it has been urged that Tranquil Reality Private Limited had paid huge sum of money to the landowners i.e., defendant No. 9 and V.S. Realtors Private Limited. It had applied for and obtained NOC from various statutory authorities such BWSSB, Fire Force Department, BSNL, BESCOM and Airport Authority and as also obtained Environmental Clearance from the Competent Authority for putting up the residential project. Defendant No. 9 further placed on record, the fact that BDA had sanctioned development plan for the project and the BBMP had issued a sanctioned plan and licence on 05.09.2013 to construct six towers of ground + 12/13 floors on the schedule property. It was also urged by defendant No. 9 that the Tranquil Reality Private Limited had spent more than 4.5 crores towards execution of Joint Development Agreement and other ancillary works leading to the project undertaken. It is in this background, defendant No. 9 sought for vacation of the ex-parte order of status-quo obtained by the plaintiffs.

The Trial court on consideration of the materials on record has come to the conclusion that no prima facie case had been made out by the plaintiff for grant of an order of temporary injunction and that the status�quo order granted deserved to be vacated. Accordingly, it dismissed IA No. 1 filed by the plaintiff and allowed IA No. 3 filed by the defendant No. 9.

Learned Senior Counsel appearing for the appellants-plaintiffs Sri Jayakumar S. Patil contends that Trial court has not considered any of the documents produced by the plaintiffs though reference has been made to them in paragraph No. 28 of the order. He further points out that the Court below has proceeded on the basis that Chinnipiga became the absolute owner of the property having purchased the same in the year 1965 without noticing the fact that earlier he had sold the property in the year 1961 and the property was purchased out of the joint family funds. It is also his submission that suit in O.S. No. 4407/14 was filed long after the present suit was instituted and that plaintiff had no knowledge of the second suit when the interim application for temporary injunction was filed. It is urged by him that the relief sought in the application by the plaintiff was only to restrain the defendants from effecting any change in the property apart from the restraint order sought regarding non-alienation and therefore, the Trial court was in error in dismissing the application filed by the plaintiff and in vacating the order of status quo. He has placed reliance on the judgment of the Apex Court in the case of Julien Educational Trust Vs. Sourendra Kumar Roy and Others, to support his contention that, in the fact situation, the Trial court ought to have directed both parties to maintain status-quo with regard to the suit property till the disposal of the suit.

Learned Sr. Counsel appearing for the contesting respondent, Sri Ravi Naik supports the findings recorded by the Court below. He invites the attention of the court to the fact that although temporary injunction was granted on 03.07.2014 in O.S. No. 4407/2014, the plaintiffs - appellants in the instant case had entered appearance in the said suit on 14.07.2014 and after hearing them, temporary injunction granted against the plaintiff - appellants herein had been made absolute on 08.12.2014. Therefore there was no justification for the plaintiffs - appellants in the present suit to seek an order of temporary injunction and at any rate to suppress the same at the time when the matter was argued while obtaining the order of status-quo on 02.08.2014.

Learned counsel has taken the court through the various transactions that are reflected in the pleadings to contend that family of Chinnappiga had parted with the property way back during the period 1965 to 1968 and thereafter the revenue records stood changed in the name of the subsequent purchasers who have dealt with the property as desired by them and unmindful of these developments, plaintiffs cannot be permitted to seek restraint order against the third party purchasers in the guise of presenting a suit for partition after a lapse of several decades. He has also emphasized the fact that defendant No. 9 and the other parties to the Joint Development Agreement have altered their position to their detriment by investing huge sum of money with a view to construct multi storied apartments.

Upon hearing the learned counsel for both the parties and on careful perusal of the pleadings and the impugned order and other documents enclosed, I find that plaintiffs have instituted the suit in the year 2014 seeking partition and separate possession of the suit property namely the land bearing survey No. 63/2. As per the plaint averments itself, this land was sold by the propositus Chinnappiga way back during the period 1965-68 by executing registered sale deeds in favor of different persons who in turn have indeed sold the property during 1995, 2005 and 2010. After the property changed so many hands, plaintiffs have instituted the suit in the year 2014 claiming that the property continued to be a joint family property in possession of the family and that Chinnappiga could not have sold the property because his sons and their legal representatives had share in it.

The plaint averments specifically state that property was a thoti inam land granted in favour of Chinnappiga. However as per the submission made at the Bar, it is clear that Chinnappiga had indeed purchased the property during the year 1961 and later on repurchased in the year 1965. The documents referred to in paragraph No. 28 of the order of the Court below which according to the learned counsel for the appellants have not been considered by the Court below are xerox copy of the preliminary record of Sy. No. 63, xerox copy of R.R. extract, copy of Mysore Revision Settlement Register, xerox copy of Encumbrance certificate, certified copy of the sale deed dated 02.05.1961 executed by Chinnippiga and Munithana in favour of Annaiah Reddy, and also Xerox copy of the sale deed dated 15.04.1964 executed by Annaiah Reddy in favour of Dodd Ramaiah and other revenue documents.

It is not even demonstrated before this Court how these documents would disclose the right title and interest of the appellants as on the date of filing of the suit or immediately before that date. The documents referred to therein or the preliminary records or for that matter, RR extract do not disclose either the actual possession of the plaintiffs or their family members as on the date of the suit.

On the other hand, the sale deeds referred to therein would disclose the fact that the property had changed hands and Chinnappiga himself had sold the property in favour of Annaiah Reddy and Annaiah Reddy in turn sold in favour of Dodd Ramaih. Therefore, even assuming that Court below has not given detailed reasoning regarding these documents the same will not, in any manner vitiate the conclusion reached by the Court below regarding absence of any prima-facie case in favour of the plaintiffs.

The relevant documents are the documents of title on which the defendants have placed reliance. They have produced documents to show how the revenue katha of the said property got changed in the name of successive predecessors and that the property in question was never in possession of the plaintiffs or their immediate predecessors. The Court below has rightly taken the relevant documents produced by defendant No. 9 into consideration while coming to the conclusion that no prima-facie case was made out by the plaintiff.

It is well established that if plaintiff fails to make out a prima facie case, question of directing the parties to maintain the suit property in status-quo would not arise. If such an order is passed, then it will seriously prejudice the interest of the defendants and in a situation as is presented in the instant case, it will result in irreparable injury and loss to the defendants who have invested huge sum of money over the property and the project. They have obtained clearance from different authorities apart from the sanction plan and license. In such circumstance balance of convenience does not lie in favour of the plaintiffs and indeed, it lies in favour of the defendants. Therefore the Trial court was right and justified in dismissing the application filed by the plaintiffs and in vacating the ex-parte order of status-quo granted. None of the contentions urged by the counsel for the appellants are tenable.

In the facts and circumstances of the present case, the judgment on which reliance is placed by the learned senior counsel for the appellants has no application. In the said case, the Hon''ble Apex Court has found that an interim order was required to be passed to maintain status-quo regarding the suit property during the pendency of the suit for specific performance filed by the appellant particularly because the appellant therein had made out a prima facie case.

Hence the appeal being devoid of merits, is dismissed.