H.C. Jayaram vs Krishnappa

Aravind Kumar, J.—This is a plaintiff''s appeal questioning the order passed by the City Civil and Sessions Judge, Bangalore dated 08.07.2014 in O.S. No. 3907/2009 dismissing application - I.A. No. 11 filed under Order 39 Rules 1 & 2 CPC whereunder plaintiff sought for an order of restraint against defendants from changing the nature of suit property pending disposal of the suit.

I have heard Sri Amaresh A Angadi, learned Advocate appearing for appellant.

Learned Advocate appearing for appellant contended that trial Court failed to consider that suit schedule properties are joint family properties and respondents-1 to 5 had created a palupatti for their convenience and even under the said Palupatti there is unequitable distribution of properties and on the basis of said Palupatti, defendants are claiming right over joint family properties and attempting to sell joint family properties to make wrongful gain to themselves and to deprive the plaintiff of his legitimate share and as such, during the pendency of the suit, application was filed seeking an order of injunction i.e., not to change the nature of land which has been erroneously rejected by the trial Court and as such, he prays for grant of temporary injunction or in the alternate prays for directing the parties to maintain status quo with regard to suit schedule properties till suit is adjudicated by the trial Court. In support of his submission, he relies upon judgment of a co-ordinate Bench of this Court in Chinnamma and others Vs. N. Nagaraj and others, .

Having heard the learned Advocate appearing for appellant and on perusal of the order under challenge as also pleadings, it would indicate that plaintiff sought for partition and share in the suit schedule properties contending inter alia that first defendant had expressed urgency in dividing the suit properties in the year 1983 and allegedly brought into existence an unregistered Palupatti and assured said Palupatti is only an interim measure and it is not a division of properties by metes and bounds and as such, he contended that trial Court was not justified in rejecting the application when the plaintiff raised a serious dispute with regard to the alleged Palupatti dated 24.09.1983. Hence, he seeks for allowing the appeal and grant of injunction or in the alternate prays for directing the parties to maintain status quo with regard to suit properties.

Trial Court has found on appreciation of pleadings and after considering the documents that plaintiff is guilty of suppression of facts namely, he has not spoken a word about Palupatti dated 24.09.1983 after having been acted upon it and earlier suit in O.S. No. 3098/2007 having been filed had also been suppressed and as such, trial Court has refused to grant an order of temporary injunction.

After considering the contentions raised by Mr. Amaresh Angadi, learned Advocate appearing for appellant and after bestowing my careful attention to the arguments advanced as also judgment relied upon by him, I am not inclined to admit this appeal for the reasons that would unfold herein below:

At the outset., it requires to be noticed that in the suit in question, i.e., O.S. No. 3907/2009, plaintiff has not whispered a word about sites having been formed by him in Sy. No. 27 of Horamavu village and same having been sold by him to third parties. It is only when defendants -1, 3, 4 and 7 appeared and filed statement of objections along with relevant documents, this fact has come to the notice of the trial Court. It has also been noticed by the trial Court that there was a family partition even much prior to Palupatti coming into existence and said Palupatti dated 24.09.1983 is only a confirmation of earlier partition amongst family members and under the said partition, different portion as described thereunder had been allotted to plaintiff''s share. It requires to be noticed that said partition has taken place according to'' defendants in the year 1983. Undisputedly, plaintiff has sold site Nos. 1, 6, 7 and 8 formed in Sy. No. 27 of Horamavu village in favour of third parties in the year 2002 itself, which fact would indicate that appellant-plaintiff himself has acted upon the said partition deed dated 24.09.1983 and it is too late in the day for him to contend-that said partition is not binding on him.

Insofar as issue regarding there being unequitable partition, this Court would not go into the said issue. This is a matter which requires to be examined by trial Court after full fledged trial and if any opinion is expressed in this appeal it may prejudice rights of either parties. Hence, it is left at it.

Trial Court has rightly noticed that suit schedule properties have been fully developed and it now falls within the jurisdiction of BBMP and from the date of partition dated 24.09.1983 original sharers are in possession of the properties and in respect of the sites which has been sold by the plaintiff himself, said purchasers are in possession. Though trial Court has not stated in actual words, it would clearly indicate that third party rights has been created and if an order of injunction is granted in favour of plaintiff it would lead to miscarriage in administration of justice and plaintiff would attempt to unsettle the settled facts. As such, trial Court has rightly found that plaintiff has no primafacie case, balance of convenience which cannot be faulted with. If order of temporary injunction as sought for is granted to the appellant at this stage i.e., after a lapse of 30 years from the date of partition which has taken place in 1983 it would cause irreparable loss and injury to defendants. Hence, it cannot be construed that balance of convenience is in favour of plaintiff and it is the defendants who would be put to irreparable loss and injury in the event of grant of temporary injunction. Hence, no infirmity can be found in the order passed by trial Court.

Insofar as judgment in the case of Chinnamma vs. Nagaraj relied upon by the learned Advocate appearing for appellant is concerned, I am of the considered view that factual matrix was quite different and principles laid down in the said case would be inapplicable to the facts on hand. It had been found by the trial Court in the said case that pleadings of the parties itself indicated that in the earlier litigation, defendants had made admission to the effect that disputed properties constituted joint family properties. It is because of this precise reason, order of temporary injunction was granted by trial Court and this admission of defendants about suit properties being joint family properties swayed in the mind of trial Court to grant an order of temporary injunction. However, such admission is not to be found in the present case and on the other hand Palupatti dated 24.09.1983 would indicate that parties had divided the properties belonging to the joint family and respective parties had been put in possession of the properties allotted to them under the said Palupatti. Hence, said judgment is inapplicable to the present case and would not come to the rescue of appellants.

For the reasons aforestated, appeal is hereby dismissed. It is needless to observe that observations made by trial Court as well this Court is confined only for the purpose of considering the application in question i.e., for grant of temporary injunction.