Prema and Others vs Kariyamma and Others

B.S. Patil, J.—This appeal is directed against the order dated 22.03.2014 passed by the Trial Court in O.S. No. 385/2012 partially rejecting the prayer made in I.A. No. 2 for temporary injunction to restrain defendants 1 to 3 from interfering with the peaceful possession and enjoyment of the suit schedule properties by the plaintiffs.

The suit schedule properties in respect whereof order of temporary injunction was sought are mentioned in items 1 to 3 of the schedule appended to the application. Temporary injunction was sought in respect of Sy. No. 294/1 measuring 3 acres 18 guntas, Sy. 485/1 measuring 59'' X 52'' and the house property bearing No. 616/1 & 2, all situated in Hesarghatta Village, Hesarghatta Hobli, Bengaluru North Taluk.

Plaintiffs have sought for a judgment and decree for cancellation of Partition Deed dated 05.01.2012 and for a declaration that plaintiffs along with defendants 4 & 5 were the absolute owners in possession of the suit schedule properties along with consequential relief of permanent injunction to restrain defendants 1 to 3 from interfering with peaceful possession and enjoyment of the property by the plaintiffs.

Plaintiffs have contended that defendants 1 to 3 were strangers to the family of the plaintiffs and did not have any right over the suit schedule properties; with the support of some rowdy elements, defendants took the plaintiffs to the office of the Sub-Registrar and got registered the Partition Deed dated 05.01.2012 by playing fraud against them. It is alleged that complaint was lodged with the jurisdictional police.

According to the plaintiffs originally, the suit properties belonged to one Hanumanthappa. The said Hanumanthappa executed a registered Will in favour of Bylappa. By virtue of the Will, Bylappa became the absolute owner after the death of Hanumanthappa. Bylappa died on 28.12.2008 leaving behind plaintiffs 1 & 2 and defendants 4 & 5 as his successors. There were no other legal heirs left behind by Bylappa. Though defendants 1 to 3 had nothing to do with the plaintiffs and the suit properties, they forcibly, without the knowledge of the plaintiffs along with defendants 4 & 5 took them to the Sub-Registrar''s office and got their signatures to get the Partition Deed dated 05.01.2012 registered. It is in this background, they have sought for cancellation of the said partition deed and for a decree of permanent injunction. They also moved an application seeking temporary injunction.

Defendants contested the suit and filed objections to the applications. They have denied the allegations made with regard to fraud, coercion and misrepresentation alleged in the execution of partition deed. They have urged that plaintiffs and defendants 4 & 5 entered into an Agreement of Sale with one Dwarakanath on 25.07.2011 to an extent of 2 acres of land in item No. 1 of suit schedule properties though plaintiffs were not in possession and enjoyment of the same. By canceling the said Agreement of Sale, a fresh sale agreement was entered into on 15.09.2011 in favour of D.M. Raju behind the back of defendants 1 to 3 that too in violation of the interim order passed by the Civil Court in O.S. No. 798/2011.

They have further urged that defendants 4 & 5 received totally a sum of Rs. 42,00,000/- towards advance sale consideration from D.M. Raju. They have further contended that all the parties to the suit were related to each other and being they are the successors of common ancestors, therefore, they decided to allot the house property at Hesarghatta Village and an extent of 15 guntas of land together with house constructed thereon and also advance amount of Rs. 42,00,000/- received, towards the share of the plaintiffs and defendants 4 & 5 jointly and accordingly, a registered Partition Deed was executed with the consent of all the parties to the deed.

They have also contended that subsequently Agreement of Sale entered with D.M. Raju was terminated. He was permitted to enter into a fresh sale agreement with defendant No. 1 with regard to the subject matter of sale agreement and accordingly, he has entered into a fresh agreement on 21.01.2012 to which plaintiffs and defendants 4 & 5 have also signed as witness. Thus, it was contended by the defendants that plaintiffs had suppressed material facts and had come up with false assertion.

The Court below has considered the respective stand taken by the parties and has come to the conclusion that plaintiffs had made out a prima facie case only with regard to the properties that were allotted in their favour under the registered partition deed and therefore, their interest was required to be protected by granting an order of temporary injunction in their favour to the said extent. Insofar as the other suit schedule properties were concerned, in view of the registered partition deed, the Court below has prima facie come to the conclusion that no case was made by the plaintiffs regarding their actual possession over the suit properties. The Court below has also found that allegations and assertions made in the plaint regarding alleged fraud committed in getting the partition deed registered are prima facie not probablised by any materials and therefore, they were not entitled for grant of temporary injunction as prayed for in respect of other items.

Learned counsel for the appellant/plaintiffs submits that since serious allegations of fraud leading to creation of document in the nature of partition deed has been made in the plaint and as the matter deserved trial, the Court below ought to have directed both parties to maintain status-quo with regard to the suit items pending disposal of the suit.

I have given my anxious consideration to the contentions urged, in the light of the pleadings and the findings recorded by the Trial Court. The Trial Court has taken note of the circumstances under which registered partition deed came to be executed. It has also noticed that as per the said partition deed, a house property situated in Hesarghatta and 15 guntas of land situated in the said place have been allotted to the share of the plaintiffs. It has also kept in mind the fact that plaintiffs were not illiterate persons whose version regarding the so called fraud committed and the threat exerted against them to have the partition deed registered before the Sub-Registrar''s office could be believed.

I do not find any illegality in the approach adopted by the Court below in recording a finding that no prima facie case had been made out for grant of an order of temporary injunction as prayed for by the plaintiffs. Plaintiffs'' interest to the extent the properties have gone to their share in the registered partition deed has been protected and indeed in respect of other properties which have fallen to the share of other sharers, the Court below has declined to grant the prayer for temporary injunction in favour of the plaintiffs.

In my view, if the properties are ordered to be kept idle during the pendency of the suit restraining the defendants from developing the same or improving its nature, it will not enure to the benefit of either of the parties. On the other hand, it will seriously prejudice the interest of the defendants and irreparable loss and injury would be caused to the defendants, whereas no such injury would be caused to the plaintiffs, if defendants improve the properties at their risk during the pendency of the suit and any such improvement would, however, be subject to the result of the suit.

With the above clarification, appeal is dismissed. As the suit is of the year 2012, the Court below is directed to dispose of the suit by the end of October, 2017. Observations made by the Court below and by this Court are confined to the disposal of the application only and shall not affect the merits of the case for final adjudication.