Kowkuntla Rejendra Setty vs Kowkuntla Vijay Kumar

B. Veerappa, J.—1. This is a defendant''s appeal against the order dated 20.02.2014 on I.A. No. II made in O.S. No. 95/2013 on the file of the Prl. Sr. Civil Judge and CJM, Ballari, granting temporary injunction in favour of the plaintiff restraining the defendant from putting up any further construction in item No. 2 of the suit schedule property pending disposal of the suit.

The respondent who is the plaintiff before the Trial Court has filed the suit for partition and separate possession against the defendant in respect of the suit schedule properties " item Nos. 1 to 3, contending that the plaintiff and defendant are the members of the hindu joint family and the defendant being the eldest brother and senior most male member of the joint family, he is the karta of the joint family and his father Kowkuntla Virupakshaiah Setty died on 19.03.1982 leaving behind the plaintiff, defendant and three sisters and all three sisters of the plaintiff and defendant are born prior to 17.06.1956. Therefore, they are not entitled to any share in the plaint schedule properties mentioned. The plaintiff further contended that item No. 1 of the plaint schedule which is the residential property and item No. 2 commercial building, both situated at Bellary are joint family properties of the plaintiff and defendant and they have fallen to the share of the Kowkuntla Virupakshaiah Setty i.e., the father of the plaintiff and defendant under a registered partition deed dated 13.12.1963. Item No. 3 of the plaint schedule properties, a commercial shop with godown of the property of M/s. Kowkuntla Virupakshaiah Setty and sons, a partnership firm, wherein the plaintiff, defendant and there father were the partners of the said firm and all are entitled for equal share etc.

The defendant filed the written statement, denied the plaint averments and contended that the suit schedule properties are not joint family properties and there is no specific defence made by the defendant with regard to the suit schedule properties.

During the pendency of the suit, the plaintiff filed I.A. No. II under Order 39 Rules 1 and 2 read with Sections 94 and 151 of CPC for temporary injunction restraining the defendant from proceeding with the reconstruction of item No. 2 of the suit schedule property in any manner pending disposal of the suit reiterating the plaint averments. The defendant filed objections to the said application and resisted the I.A.

The Trial Court based on the pleadings, framed the following issues:

Whether the plaintiff has made out prima-facie case for grant of temporary injunction?

Whether the balance of convenience lies in favour of the plaintiff?

Whether the plaintiff would suffer irreparable injury and loss, if the injunction is refused?

What Order?

After hearing both the parties, the Trial Court has recorded a finding that the plaintiff has made out a prima face case for grant of temporary injunction and balance of convenience in favour of the plaintiff. If the interim injunction is not granted in his favour, plaintiff will have to suffer irreparable injury and loss. Accordingly, by the impugned order dated 20.02.2014, the Trial Court allowed I.A. No. II, granted temporary injunction, restraining the defendant from putting up any further construction in item No. 2 of the suit schedule property pending disposal of the suit. Hence, the present appeal is filed by the defendant.

I have heard the learned counsel for the parties to the lis.

Shri Vinay S. Koujalagi, learned counsel appearing for Shri V.M. Sheelvant contended that the Trial Court has committed grave error in granting the injunction restraining the appellant from putting up construction mechanically without application of mind. The plaintiff has not come to the Court with clean hands and has filed false suit only to harass the appellant and contended that if the appellant is permitted to proceed with the construction in item No. 2 he will not claim any equity, in case if he failed to succeed in the suit. Therefore, he sought to set aside the impugned order passed by the Trial Court.

Per contra, Smt. V. Vidya Iyer, learned counsel for the respondent sought to justify the impugned order and strenuously contended that the defendant has not taken any specific defence in the written statement, except denying plaint averments. Therefore, the Trial Court is justified in granting the injunction restraining the defendant from proceeding the construction from item No. 2. Therefore, she sought to dismiss the appeal.

The legal fight between two brothers in respect of the immovable properties, the respondent/plaintiff filed suit for partition contending that the items of suit schedule properties as joint family properties and plaintiff and defendant are brothers and sons of Kowkuntla Virupakshaiah Setty and item No. 2 of the suit schedule property was fallen to the share of their father under a registered partition deed dated 13.12.1963. After death of their father, plaintiff is entitled half share and defendant is entitled half share. The said specific averments made in the plaint is just denied by the defendant by filing written statements. There is no specific defence whether the suit schedule properties are self acquired properties or not. The defendant contended that, under oral agreement between the parties, the item No. 2 was fallen to the share of the defendant.

The oral assertion made by the defendant that it was allotted to him under oral agreement has to be adjudicated at the time of full fledged trial. The fact remains that item No. 2 was fallen to the share of their father/Kowkuntla Virupakshaiah Setty in the family partition, as per the registered partition deed dated 13.12.1963 which is not in dispute and except the oral assertion, the defendant has not produced any document to show that item No. 2 of the suit schedule property was allotted to him. In the absence of any material document and consent given by the plaintiff, the defendant cannot proceed with the construction of item No. 2 which is admittedly a joint family property, as per registered partition deed dated 13.12.1963.

The Trial Court considering the entire material on record, has recorded a finding that suit schedule property originally belonging to the father of the plaintiff and defendant Kowkuntla Virupakshaiah Shetty and defendant has not produced any document to show that suit schedule property item No. 2 was allotted to his share as contended by him. Under the circumstances, if the defendant is allowed to reconstruct the building, definitely it will cause hardship and inconvenience to the plaintiff. If the injunction is not granted, plaintiff will be put to great hardship and inconvenience. If the injunction is not granted, the defendant will proceed with the reconstruction work which will cause irreparable injury and loss to the plaintiff and also it will result in multiplicity of proceedings between the parties and the balance of convenience lies in favour of the plaintiff. Accordingly, injunction is granted.

The Trial Court exercised the discretionary power, while granting equitable order of temporary injunction and recorded a finding that the plaintiff has proved prima facie case and balance of inconvenience. If the construction is not proceeded in respect of item No. 2 during the pendency of the suit, no harm will cause to the appellant/defendant. The discretionary order passed by the Trial Court cannot be interfered by this Court while exercising the Appellate power under Order 43 Rule 1(r) of CPC, unless the defendant made out any perversity in the order passed by the Trial Court. Admittedly, in the present case, no such perversity is pointed out by the learned counsel for the appellant.

In view of the aforesaid reasons, the appellant has not made out any case for interference by this Court in the present appeal. Accordingly, the appeal is dismissed.

However, it is made clear that the Trial Court shall proceed with the merits of the case independently without influence of any of the observations made by this Court while passing the present judgment.

Ordered accordingly.