Nambiar Builders Pvt. Ltd. vs Suhas and Others

Budihal R.B., J.—1. This petition is filed by the petitioner-purchaser challenging the order passed by the Trial Court on the interim applications i.e., I.A. Nos. 1 and 2.

The plaintiff, who is respondent No. 1 herein, filed the suit before the Trial Court seeking partition and separate possession of his legitimate share in the suit schedule property, declare the alienation of the schedule property by defendant No. 1 in favour of defendant No. 2, under the gift deed, as it is not binding on the plaintiff, so also declare the alienation of the schedule property by defendant Nos. 1 and 2 in favour of defendant No. 3 under the sale deed dated 04.03.2010 is not binding on him, declare the mortgage of the schedule property by defendant No. 3 in favour of defendant No. 4, under the deposit of title deeds dated 28.09.2011, is not binding on him, also sought for permanent injunction to restrain the defendants from alienating the schedule property and altering the nature of the schedule property.

Along with the suit, he has also filed the applications I.A. Nos. 1 and 2 under Order 39 Rules 1 and 2 read with Section 151 of CPC to restrain the defendant No. 3 from alienating the schedule property and also to restrain defendant No. 3 from altering the nature of the schedule property during the pendency of the suit. The said applications were opposed by the defendant No. 3, who is the petitioner herein, by filing the written statement as well as objection statement.

After considering the merits of the applications, ultimately, the trial Court allowed both the applications and granted temporary injunction order restraining the petitioner herein from alienating suit schedule property and to maintain status-quo. The orders passed by the Trial Court were challenged before the appeal Court by preferring the miscellaneous appeal; the said Court also confirmed the orders passed by Trial Court on the said applications and dismissed the miscellaneous appeal. Being aggrieved by the said order, petitioner-defendant No. 3 is before this Court.

Heard the arguments of the learned senior counsel appearing for the petitioner-defendant No. 3 and the learned senior counsel appearing for respondent No. 1-plaintiff.

Learned senior counsel for the petitioner during the course of his arguments has submitted that the suit itself is not maintainable as all the family properties were not included and the suit is only for partial partition. Hence, he has submitted that interim applications are filed as an aid to the main relief in the suit, if the main suit is not maintainable, the question of entertaining the interim applications will not arise at all. He has also submitted that the contentions raised by the petitioner-defendant No. 3 in his objection statement, so also in the written statement were not taken into consideration and the documents produced on his behalf were also not properly appreciated by the trial Court while deciding the applications.

Learned senior counsel has submitted that out of five properties that had fallen to the share of the father of the plaintiff, one property had been gifted by the father of the plaintiff in favour of his wife i.e., mother of the respondent No. 1-plaintiff, the property was sold in favour of the petitioner for the purpose of legal necessity and to discharge the debts of the family. The recitals in the sale deed are also very clear that from the sale consideration amount the property was also purchased in the name of the mother of respondent No. 1-pliantiff. Learned senior counsel has submitted that this itself shows that alienation is for family necessities. He has further submitted that the Trial Court has not considered these legal aspects and when the serious contention was raised with regard to the very maintainability of the suit itself, the Trial Court ordered that those contentions were considered at a later stage. Hence, he has submitted that the order passed by the Trial Court, which was confirmed by the First Appellate Court is illegal and not sustainable in law and hence, submitted to set-aside the said orders and to allow the petition.

In support of his contentions, learned senior counsel for the petitioner has relied upon the following decisions filed in the list of authorities:

i. , 1994 (4) SCC 294 in the case of Kenchegowda (since deceased) by Legal Representatives v. Siddegowda alias Motegowda.

ii. , AIR 1983 SC 1272 in the case of Cotton Corporation of India Limited v. United Industrial Bank Limited and others.

iii. , AIR 1974 MAD 87 in the case of Vadivel Mudaliar and another v. Pachianna Gounder.

iv. 1975 (2) Kar. L.J. 96 in the case of Virupaxappa v. REvanappa Siddappa Ganigar and others

v. 1980 (1) Kar. L.J. Short Note 1.

Per contra, learned senior counsel for the respondent No. 1-plaintiff during the course of his arguments has submitted that when the transaction of sale in favour of defendant No. 3 took place, respondent No. 1-plaintiff was admittedly a minor; he was having the share in the family properties. The properties are not at all purchased in the name of minor by using the sale consideration of the sale of family property. Hence, learned senior counsel has submitted that from the very birth in the family, the plaintiff is having legitimate right to claim his share in the family properties.

Learned senior counsel has submitted that with regard to the contention raised by the other side that the suit for partial partition is not maintainable is concerned, the applications seeking amendment of the plaint to include all the properties is already been filed before the Trial Court, which is pending for consideration. It is also his contention that when the plaintiff has challenged the alienation and the gift deed in between the defendants in the said suit by a declaratory prayer, the said suit is yet to be decided by the Court. The interim relief, which he has sought in the said suit were very much necessary and they are assisting main relief sought in the suit. Learned senior counsel has further submitted that if such reliefs were not granted, then the developer will develop the property and thereafter it leads to multiplicity of proceedings.

Learned senior counsel has also submitted that the Trial Court passed the order not to alienate and not to change the nature of the suit schedule property during the pendency of the suit only. Hence, he has submitted that on the pleadings submitted by both sides, the Trial Court considered all the aspects of the matter and ultimately granted injunction orders under I.A. Nos. 1 and 2. Hence, he has submitted that no illegality has been committed by the Trial Court in passing such interim orders. He has also submitted that the order passed by Trial Court is confirmed by the First Appellate Court, hence, there are concurrent findings with regard to the factual aspects of the matter. When that is so, the scope of the writ Court is limited to interfere with the orders passed by the Trial Court, which is confirmed by the appeal Court. Hence, he has submitted that there is no merit in this petition and accordingly same is to be dismissed.

In support of his contentions, learned senior counsel for the respondent No. 1 has relied upon the following decisions filed along with the list of citations:

i. , AIR 2009 Kant 112 in the case of K.C. Laxmana vs. K.C. Chandrappa Gowda and Ors.

ii. , 2008 (1) KCCR 546 in the case of Mallikarjuna v. Mareppa and Ors.

iii. , (1993) 4 SCC 38 in the case of Panni Lai v. Rajinder Singh and Anr.

iv. , AIR 2003 SC 1561 in the case of Sadhana Lodh v. National Insurance Company Ltd. and Anr.

v. , (2008) 8 SCC 180 in the case of Shaikh Ali Hossain and Ors. v. Sk. Showkat Ali and Anr.

vi. , AIR 2005 SC 104 Maharwal Khewaji Trust (Regd.), Faridkot v. Baldev Dass

vii. , ILR 2004 KAR 4076 in the case of Fakirasab v. Syedusab and Others

viii. , (2009) 9 SCC 52 in the case of R. Mahalakshmi v. A.V. Anantharaman and Ors.

I have perused the grounds urged in the petition, copy of the plaint, written statement filed by defendant No. 3, copy of the applications and the order passed by the Trial Court on the said applications.

The respondent No. 1-plaintiff has filed the suit for the relief of partition and declaration and consequential relief of injunction. He claims that he is having the right, title, interest and share in the suit schedule property. He has also challenged the other alienations that they are not binding upon him. During the pendency of the said suit, he has filed two applications requesting the Court to restrain defendant No. 3 from alienating and altering the nature of the suit schedule property and to maintain the status-quo. Looking to the order passed by the Trial Court on the said applications, the Trial Court has taken into consideration, entire pleadings of the parties and also the documents produced in the case and ultimately held that it is necessary to pass such orders during the pendency of the suit. The said order of the Trial Court has been confirmed by the First Appellate Court by the order dated 05.09.2015 passed in Miscellaneous Appeal Nos. 5013/2015 & 5014/2015. The order passed by the First Appellate Court shows that it has considered the matter in detail, so also it has considered the decisions relied upon by the learned counsel on both sides and thereafter, passed the detailed judgment dismissing the appeal preferred by the petitioner-defendant No. 3.

So far as the factual aspects are concerned, it is rightly submitted by the learned counsel for the respondent No. 1-plaintiff that there are concurrent findings by the Courts below. As regards the contention of the learned senior counsel for the petitioner-defendant No. 3 that the suit is only for partial partition, and unless and until the other family properties are included, the suit itself is not maintainable is concerned, learned senior counsel for respondent No. 1-plaintiff has already brought to the notice of the Court that amendment application has already been filed to include all other properties in the said suit.

Looking to these materials and the submissions made by the learned senior counsel on both sides, so also the looking to the decisions relied upon by both sides, I am of the considered opinion that the orders passed by the Courts below restraining defendants from alienating and altering the nature of the suit schedule property is in accordance with law. Hence, no illegality has been committed by the Courts below and there are no grounds for this Court to interfere with the orders passed by the Courts below either to set-aside or to modify the said orders. Accordingly, petition is hereby rejected.