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Judgment
A.N. Venugopala Gowda, J.—Appellants, who are Defendants 1 and 2 in O.S 684/2010, pending on the file of Fast Track Court - II, Bangalore Rural District, Bangalore, instituted by Respondents 1 to 5/Plaintiffs, have questioned in this appeal, an order passed by the Trial Court on I.A.I, whereby and whereunder, the Appellants were restrained from alienating tilt the disposal of the suit, the plaint schedule properties. For convenience, the parties would be referred to with reference to their rank in the suit.
The Plaintiffs and the Defendants are the children of late Lakkur Abbaiah and his wife Smt. Seethamma. The suit instituted is for passing judgment and decree of partition, by re-opening an earlier partition and to put the Plaintiffs in separate possession of their legitimate share in the plaint schedule properties and to restrain the Defendants by perpetual injunction from interfering with the possession and enjoyment of plaint schedule property of the Plaintiffs. Lakkur Abbaiah died on 17.09.1987 and his wife Seethamma died on 12.07.1998. The Plaintiffs and the 3rd Defendant are the daughters and the Defendants 1 and 2 are the sons of Lakkur Abbaiah and Seethamma. According to the Plaintiffs, on account of misrepresentation and fraudulent acts on the part of the Defendants, a partition deed has illegally come into existence on 29.05.2002 and that, there is no valid consent i.e., to the said partition, which according to them, was not accepted and so also not acted upon. According to the Plaintiff, the partition is wholly inequitable and unequal. Along with the suit, I.A.I was filed to pass an order of temporary injunction, to restrain the Defendants from alienating the plaint schedule properties.
The Defendants 1 and 2 filed the written statement, contending that, Plaintiffs are literates, they know how to read and write and that, they executed the partition deed with full knowledge and the Plaintiffs also got the katha of the respective properties changed to their names in furtherance of the partition and the properties allotted to the Plaintiffs became the subject matter of acquisition for BWSSB and that, the Plaintiffs have appeared before the concerned authority and stated that they have no objection for acquisition of the land and demanded payment of compensation. It has been stated that the Plaintiffs have filed WP 13608/2010 questioning the acquisition, wherein, the acquired property having fallen to their share under the registered partition deed, has been admitted. They have contended that the suit is not maintainable. The claim of the Plaintiffs, for partition and perpetual injunction, in respect of the plaint schedule properties has been contested. Separate statement of objections was filed to I.A.I, reiterating the contentions put forth in the written statement. It has been stated that, there does not exist any joint family nor joint family properties and the suit being false and frivolous, the Plaintiffs are not entitled to any order of temporary injunction.
The Trial Court having noticed the registered partition deed dated 29.05.2002 between the parties, observing that, the same is unequal and the partition got affected being not legal and justifiable, observing that there is triable issue to be decided after full-fledged trial, held that the Plaintiffs have made out prima facie case. The Trial Court has held that the contentions taken by the Plaintiffs in the writ petition about the partition does not stop them from agitating their legitimate rights and that, if the suit property is not kept intact, it leads to violation of Section 52 of the Transfer of Property Act and there would be complexity and multiplicity of litigation amongst the parties, which would also result in a strained relationship of brothers and sisters. The Trial Court has held that, the balance of convenience is in favour of the Plaintiffs and they would suffer loss and prejudice if an order of injunction is not granted. As a result of such findings I.A.I was allowed.
Sri H.S. Dwarakanath, learned Counsel appearing for the Appellants, contended that, the Trial Court in order to allow I.A.I, has made out a case, which was neither pleaded by the Plaintiffs nor was argued on their behalf''s. Learned Counsel contended that, the Trial Court having noticed the registered partition deed dated 29.05.2002 and there being also transfer of mutation and the change entries in the revenue records and also the admission made in WP 13608/2010, has erred in holding that the Plaintiffs have made out a prima facie case. Learned Counsel submitted that, the findings recorded in the impugned order by the Trial Court are not only arbitrary and perverse, but is also illegal and hence, the impugned order is liable to be set-aside.
Sri Ravi L. Vaidya, learned Counsel appearing for Respondents 1 to 5, on the other hand contended that, a perusal of the partition deed dated 29.05.2002 makes it clear that, there is no equality of division and the Plaintiffs being not well read and having been dominated by their brothers i.e., the Appellants, have only subscribed their signatures to the partition deed, on account of the fraud and misrepresentation committed in the matter of obtaining signatures to a partition deed dated 29.05.2002 and hence, the Trial Court is justified in allowing I.A.I, to avoid protraction of the case on account of acts of encumbrance, which would be created by Defendants 1 & 2 to frustrate the lawful claim of the Plaintiffs. Learned Counsel submitted that, the suit being one for partition by re-opening an earlier partition, which is wholly inequitable & unequal, keeping in view the relationship between the parties being brothers and sisters, the order of temporary injunction restraining the Defendants from alienating the suit property, during pendency of the suit is justified. Learned Counsel submitted that, the Trial Court in exercise of its discretion has passed the impugned order, which being sound and legal, no interference with the same, in exercise of the Appellate jurisdiction is called for.
Keeping in view the rival contentions and the record, the point for consideration is:
Whether the impugned order is arbitrary, perverse and illegal?
The fact that there is a registered deed of partition dated 29.05.2002 between the parties is not in dispute. The fact that the Plaintiffs, Defendant No. 3 and one P.R. Hanumappa have filed W.P 13608/2010 questioning the acquisition of land bearing Sy. No. 257 measuring 5 acres 7 guntas situated at Bellandur Amanikhane, Varthur Hobli, Bangalore East Taluk belonging to P.R. Hanumappa and the land bearing Sy. Nos. 258 measuring 13 guntas, 259/1 measuring 23 guntas and 259/2 measuring 23 guntas, situated at Bellandur Amanikhane, Varthur Hobli;, Bangalore Fast Taluk, belonging to the Plaintiffs and Defendant No. 3 is not in dispute. In the writ petition, amongst others, it has been stated as follows:
The Petitioner No. 2 to 7, are the owners of land bearing Sy. No. 258 measuring 13 guntas, 259/1 measuring 28 guntas, Sy. No. 259/2, 23 guntas, all are situated at Bellandur Amanikhane, Varthur Hobli, Bangalore East Taluk, and they derived the title to the said properties by virtue of a registered partition deed dated 29-05-2002, and in which they got schedule properties, and pursuant to the same they moved the revenue authorities for accepting mutation in their names and accordingly the mutation was accepted in their favour in M.R. No. 40/2002-03, for the and her name is also entered in the RTC in Column No. 9 and 12, as Khatedar and Anubhavadar. The copy of the registered partition deed and the mutation extract and also the RT Cs are produced herewith and marked as Annexures - C, D, E, F, G and H respectively.
Based on the said partition deed, there is transfer of mutation and revenue entries to the names of the Plaintiffs and the Defendants. The plaint averments would indicate that, the partition deed dated 29.05.2002 was on account of fraud and misrepresentation by Defendants 1 & 2 and that, the same was not accepted and acted upon by the Plaintiffs, which averment runs counter to the pleadings in the writ petition noticed supra. There is only a stray sentence at the end of para 10 of the plaint with regard the partition being inequitable and unequal, despite the fact that the partition is evidenced by a registered deed, based on which there is change of mutation and revenue entries and that the parties held and enjoyed the respective properties, as stated in the writ petition. The Trial Court by misdirecting itself has recorded the finding that, the partition will not take away the right of the Plaintiffs to challenge the deed of partition by demonstrating that it is not legal and unequal, so also not justifiable.
It is not appropriate for a Court to hold a mini trial at the stage of grant of temporary injunction. There is partition deed as well as revenue records, which indicate that the Plaintiffs and Defendants are holding their respective properties. Unless the deed of partition is yet-aside on any permissible grounds, the same has legal validity and force. It cannot be said that the Defendants 1 & 2 have not acquired right from the registered partition deed. The revenue record shows the possession and enjoyment of the properties in terms of the partition deed by the respective parties. The Trial Court while considering the balance of convenience and irreparable loss & injury, has only considered the case of the Plaintiffs and not of the Defendants. The Trial Court ought to have noticed the inconsistency between the pleadings in the plaint, WP 13608/2010 and the documents, which have been placed on record. In the circumstances, it cannot be held that, prima facie case exists for consideration. The approach and reasoning of the Trial Court is not sound and proper.
In order to obtain an order of temporary injunction, the party who seeks such injunction has to prove that he has made out a prima facie case, the balance of convenience is also, in his favour and that he will suffer irreparable loss and injury, if the temporary injunction is not granted. It is well settled principle of law that, when a party fails to prove prima facie case, question of considering the balance of convenience or irreparable loss and injury to the party concerned would not be material at all. If a party fails to prove prima facie case, it is not open to the Court to grant temporary injunction in his favour even if he has made out a case of balance of convenience in his favour and would suffer irreparable loss and injury if no temporary injunction order is passed.
Since the Plaintiffs have not made out prima facie case, the Trial Court has acted arbitrarily and illegally in allowing I.A. No. I. Since the impugned order is arbitrary, illegal and perverse, the same cannot be sustained.
In the result, the appeal is allowed and the impugned order is set-aside. Consequently, I.A.I filed in the suit shall stand dismissed.
It is made clear that, whatever observation/findings have been made by me in this judgment, being limited for consideration and decision on I.A. No. I, would not mean to prejudice the case of the Plaintiffs in the pending suit, which is required to be decided in accordance with law.
Misc. Cvl. No. 15765/2011 stands disposed off as unnecessary.
In the circumstances of the case, parties are directed to bear their respective costs.