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Karnataka High Court · body

2010 DIGILAW 579 (KAR)

Mandali Ranganna v. M. Ramachandra

2010-04-23

V.JAGANNATHAN

body2010
JUDGMENT : These two appeals are preferred by the plaintiffs in the Trial Court in O.S. No. 7039 of 2003 and challenge is to the order passed on I.A. No. 20, M.F.A. No. 3134 of 2010 is by the plaintiffs 1, 10 and 11 and M.F.A. No. 3351 of 2010 is by the plaintiffs 2 to 7 and 9. Said I.A. No. 20 was filed by he plaintiffs seeking an order of temporary injunction against 7th defendant from preventing said defendant and his agents etc., from excavating or putting up any construction pursuant to lease deed dated 12-12-2005 executed by defendants 1 to 6 in respect of the suit schedule property. The schedule to said I.A. No. 20 has been mentioned as property bearing No. 33/2 (forming portion of old Municipal No. 3, subsequent No. 33). Ulsoor road, Ward No. 81, Bangalore, measuring approximately 33,708 sq. ft., all that property forming portion of Municipal No. 33 and measuring 6475 sq. ft. Said I.A., was dismissed by the Trial Court with certain conditions imposed on 7th defendant. It is this order, i.e., called in question in these appeals. 2. Shorn of unnecessary details, the plaintiffs’ case before the Trial Court in their suit for partition and separate possession of the plaintiff’s share in suit schedule property is that properties originally belonged to one Mandi Mandalappa and he had three sons namely Chikkarangaiah, Muniswamappa and Thimmaiah. The plaintiff’s case is that after the death of Mandi Mandalappa, there was a partial partition, but suit properties remained joint and were being managed first by Muniswamappa and thereafterwards by his son Ramachandra, first defendant in the present suit. Therefore, the plaintiffs sought for a share in the suit properties though in possession of first defendant. 3. The case of the defendants on the other hand is that there was a partition of all the properties in the year 1924. The suit schedule properties were allotted to the share of Thimmaiah and after death of Thimmaiah, his widow Puttathayamma adopted first defendant herein i.e., Ramachandra and as such first defendant because the absolute owner of the suit schedule property after the death Puttathayamma. In order to substantiate the said stand taken, the defendants relied on the adoption deed dated 13-12-1937 but registered on 20-1-1938. In order to substantiate the said stand taken, the defendants relied on the adoption deed dated 13-12-1937 but registered on 20-1-1938. They also relied on Memorandum of partition dated 23-5-1938 between children of Chikkarangaiah and registered release deed dated 15-2-1954 evidencing partition between Muniswamappa and his sons and another document namely registered partition between Muniswamappa and his sons and another document namely registered partition deed between the children of Muniswamappa dated 22-2-1954 was also referred to by the defendants and in addition, the defendants also placed reliance on several transactions by way of lease deeds from 1957 to 1962. It is on these averments in the written statements the defendants sought for dismissal of the plaintiffs suit. 4. During the pendency of the suit, the plaintiffs filed I.A. No. 9 for an order of temporary injunction against the defendants and to restrain the defendants from digging pits and putting up construction. I.A. No. 8 was also filed by the plaintiffs against the defendants and in particular, direction against the 7th defendant, and the prayer in the said I.A. was to restrain the 7th defendant from hanging the nature of the property or transferring or alienating the suit schedule properties or the rights thereof. 5. Both the aforesaid I.As were allowed by the Trial Court and the defendants appealed to this Court M.F.A. Nos. 11783 and 11785 of 2006 were the appeals and this Court after hearing both sides, set aside the Trial Court order on I.A. Nos. 9 and 12 and at the same time put certain conditions on the defendants as indicated in para 17 of this Court’s judgment in the aforesaid M.F.As rendered on 6-3-2007. Aggrieved by the appeals of the defendants being allowed, the plaintiffs approached the Apex Court in SLP Nos. 10928 and 10929 of 2007 (later changed to Civil Appeal Nos. 3128 and 3129 of 2008 (Mandali Ranganna and Others v T. Ramachandra and Others1 2008(5) Kar. L.J. 613 (SC): AIR 2006 SC 2291: 2008 AIR SCW 3817) and the Apex Court dismissed the said civil appeals with certain directions/observations. The said observations which will be relevant for the parties to this judgment are paragraphs 23 and 24 and they read as under: “Rightly or wrongly constructions have come up. They cannot be directed to be demolished, at least at this stage. Respondent 7 is said to have spent three crores of rupees. The said observations which will be relevant for the parties to this judgment are paragraphs 23 and 24 and they read as under: “Rightly or wrongly constructions have come up. They cannot be directed to be demolished, at least at this stage. Respondent 7 is said to have spent three crores of rupees. If that be so, in our opinion, it would not be proper to stop further constructions: We, therefore, are of the opinion that the interest of justice would be subserved if while allowing the respondents to carry out constructions of the buildings, the same is made subject to the ultimate decision of the suit. The Trial Court is requested to hear out and dispose of the suit as early as possible. If any third party interest is created upon completion of the constructions, the deeds in question shall clearly stipulate that the matter is subjudice and all sales shall be subject to the ultimate decision of the suit. All parties must co-operate in the early hearing and disposal of the suit. Respondents must also furnish sufficient security before the learned Trial Judge within four weeks from the date which, for the time being, is assessed at Rupees One Crore”. 6. The plaintiffs thereafter filed the present I.A. No. 20 before the Trial Court and following dismissal of the said, I.A., these appeals have been preferred. 7. I have heard learned Counsel Sri G.S. Bhat for the appellants in M.F.A. No. 3134 of 2010 and Sri Shanmukappa for the appellants in M.F.A. No. 3357 of 2010 and Sri A.L. Premkumar for the respondents in first of the two appeals and learned Counsel Sri Navtesh Batra for the respondents in the other appeal. I have also perused the objections filed by the respondents and other documents referred to by the learned Counsel for the parties in the course of their arguments. 8. Learned Counsel Sri G.S. Bhat for the appellants contends that the Trial Court committed the error in literally following the directions given by the Apex Court in the aforementioned civil appeals and dismissed the I.A. filed by the plaintiffs, but in the process, the Trial Court lost sight of two important aspects. The first one is that the circumstances under which the Apex Court dismissed the civil appeals with certain directions are not the circumstances that gave rise to I.A. No. 20 being filed by the plaintiffs. The first one is that the circumstances under which the Apex Court dismissed the civil appeals with certain directions are not the circumstances that gave rise to I.A. No. 20 being filed by the plaintiffs. In other words, as certain constructions had already come up when the plaintiffs moved the Apex Court in the aforementioned civil appeals, under those circumstances the Apex Court thought it fit to permit the construction to go ahead by imposing certain conditions, whereas the situation that prompted filing of I.A. No. 26 was that the defendants were trying to dig up pits in the suit schedule property mentioned in I.A. No. 20 and as such, no construction as such has come up in the portion in regard to which the plaintiffs have sought for an order of interim injunction against all defendants and therefore the said error committed by the Trail Court requires to be interfered with. 9. Second aspect is that the order passed by the Apex Court in the aforementioned civil appeals were in the face of the lease deed dated 15-12-2004, whereas the appellants main grievance is that the defendants are now trying to dig up pits in the suit schedule property basing on a lease deed dated 12-12-2005 and therefore the Court below ought to have taken note of these circumstances and though the Apex Court had dismissed the civil appeals but with certain directions, the defendants therefore could not have gone ahead with the execution of one more lease deed dated 12-12-2006 permitting further digging up the suit land for the purpose of construction and therefore the order of the Trial Court cannot be sustained for the aforesaid reasons. 10. Yet, another submission made by the learned Counsel Sri G.S. Bhat for the appellants is that if the defendants and in particular 7th defendant is allowed to meddle with the suit schedule property which is the subject-matter of I.A. No. 20 and if the defendants put up any construction, then no land would be available for the plaintiffs to enjoy in the event of the plaintiffs succeeding in the suit in the partition and separate possession. This important aspect was also not taken note of by the learned Trial Judge while dismissing I.A. No. 20. This important aspect was also not taken note of by the learned Trial Judge while dismissing I.A. No. 20. Merely because the Apex Court had permitted the defendants to go ahead with the construction in respect of the suit schedule property involved in the two civil appeals which arose out of order passed on I.As. 9 and 12, the Trial Court could not have followed the very same procedure and permit the defendants to go ahead with the construction and impose conditions on the lines of the conditions imposed by the Apex Court while disposing of the civil appeals. Therefore, the impugned order be set aside. The Trial Court ought not to have mechanically followed the directions given by the Apex Court without considering the changed circumstances and the lease deed having been executed on 12-12-2005 not being brought to the notice of the Apex Court by the defendants. As such, the question of the decision of the Apex Court in the aforementioned civil appeals being followed by the Trial Court while dealing with I.A. No. 20 is not proper and the Trial Court ought to have kept in view that a decision is authority of what it decides and therefore relying on the Apex Court decision in AIR 2005 SC 2053, learned Counsel appearing for the appellants sought for setting aside the impugned order of the Trial Court. 11. Learned Counsel Sri Shankukappa for the other appellants who are some of the plaintiffs, adopted the very same argument of Sri G.S. Bhat and contended that the Trial Court could not have followed the orders passed by the Apex Court in civil appeals and should have taken note of the fact that the lease deed dated 12-12-2005 was subsequent lease deed and it was not even referred to by the defendants when the matter was heard by the Apex Court. 12. On the other hand, learned Counsel Sri Premkumar for the respondents 1 to 5 argued that the Trial Court committed no error in dismissing I.A. No. 20 and the suit schedule property which is the subject-matter of I.A. No. 20 is nothing but suit schedule ‘A’ property in the main suit filed by the plaintiffs and as the suit schedule properties in the suit are schedule. ‘A’ which is situated in Ulsoor road and Schedule ‘B’ which is situated in O.P.H. Road, the present appeals which arise out of I.A. No. 20 order as well as the civil appeals that arose out of the orders passed on I.A. Nos. 9 and 12 pertain to schedule ‘A’ property only and therefore in respect of a portion of the property which is now subject-matter of I.A. No. 20, the appellants cannot claim any relief as the appellants have lost their case in respect of the entire suit ‘A’ Schedule property in the civil appeals filed by them against the order Schedule property in the civil appeals filed by them against the order passed by this Court in the aforesaid M.F.As, being dismissed. Under these circumstances, the order of the Trial Court calls for no interference. 13. Apart from the above, it is also contended that the decision rendered by the Apex Court in civil appeals which arise out of I.As. 9 and 12 operates as res judicata so far as the findings recorded are concerned. Apart from the above submission, it is also argued that the plaintiffs have not shown any interest in co-operating with the Trial Court in the disposal of the suit despite direction by the Apex Court. But on the other hand, the plaintiffs have gone on to execute the agreement of sale creating interest in third parties and this is contrary to the findings recorded by this Court as well as the Apex Court. Under these circumstances, the learned Counsel referring to the documents filed and to the relevant paragraphs of the Apex Court judgment viz., paragraphs 15 to 18, submitted that the plaintiffs have no prima facie case and therefore the question of the plaintiffs I.A. being allowed does not arise, but at the same time, balance of convenience and irreparable injury lie in favour of the defendants as has been already observed by the Apex Court in its order. Therefore, the present appeals be dismissed. 14. Learned Counsel Sri Batra for the respondent 6 argued at great length referring to the observations made by this Court, particularly while disposing of M.F.A. Nos. Therefore, the present appeals be dismissed. 14. Learned Counsel Sri Batra for the respondent 6 argued at great length referring to the observations made by this Court, particularly while disposing of M.F.A. Nos. 11783 connected with 11785 of 2006 and to the relevant paragraphs of the Apex Court decision rendered in the civil appeals and in particular, drew attention of this Court to paragraphs 8, 12, 13, 15, to 18, 23 and 24 to submit that the Apex Court has dealt with all the aspects of prima facie case for grant of an order of injunction and has gone on to observe that the plaintiffs have not established a prima facie case and apart from that even the balance of convenience and irreparable injury factors also lie in favour of the defendants. Thus, the Apex Court has left no scope for taking any other view of the matter other than the one that is taken by this Court while disposing of the aforementioned MFAs. 15. Learned Counsel also argued that suit Schedule ‘A’ property in the suit is the very portion that is the subject-matter of I.A. No. 20 also and it is only in respect of a portion of suit Schedule ‘A’ property that the present I.A. No. 20 was filed and when this Court as well as the Apex Court have held that there is no prima facie made out by the plaintiffs for grant of an order of injunction in respect of Schedule ‘A’ property, it goes without saying that the said order encompasses a portion of ‘A’ Schedule property which is now subject-matter of I.A. No. 20. Therefore, the Trial Court was justified in dismissing I.A. No. 20 and putting conditions on the 7th defendant on the lines of the condition put by the Apex Court. 16. Further submission made is that even in respect of a portion of property which is the subject-matter of I.A. No. 20, the defendants have not only dug up the soil but even construction is under way and more than rupees three crores have already been dumped into the construction work and therefore the observations made by the Apex Court in paras 23 and 24 of its order will have to be followed. 17. 17. Even in the instant case also, that has been precisely followed by the learned Trial Judge imposing certain conditions on the defendants while dismissing I.A. No. 20. Therefore, no interference is called for in these appeals. In support of the above submission, learned Counsel Sri Batra drew the attention of this Court to the orders passed on I.As. 9 and 12 by the Trial Court as well as this Court in the aforementioned MFAs and the order of the Apex Court. As far as the lease deed dated 12-12-2005, which has given rise to the present I.A. No. 20 being filed by the plaintiffs is concerned, learned Counsel Sri Batra contended that the plaintiffs have suppressed the fact of the lease deed dated 12-12-2005, but even in the objections filed by the 7th defendant to I.A. No. 12 in the earlier stage, the said defendant 7 has clearly stated at para 5 of his objections about the lease deed dated 12-12-2005 and therefore the question of the defendants holding back the document dated 12-12-2005 from the purview of the Court does not arise and apart from that, the plaintiffs too had knowledge of the said registered lease deed. Under these circumstances, it cannot be said that the circumstances are entirely different from the one which had prevailed when the matters were heard by the Apex Court in the two civil appeals. 18. Yet, another submission made by the learned Counsel for the respondents is that the plaintiffs have slept over for too long and this has been observed by the Apex Court itself in its order and therefore it is not a case which deserves any sympathy and therefore the dismissal of I.A. No. 20 by the Trial Court looked from any angle does not call for any interference. 19. As far as the ruling referred to by the appellants Counsel is concerned, submission made is that the said ruling has no application to the instant case, but on the other hand, it is the submission of Sri Batra that the matters which were covered under I.A. Nos. 9 and 12 are the very matters which are in controversy between the parties even in I.A. No. 20 also. Under these circumstances, the dismissal of the appeals is sought. 20. Having thus heard both sides and after going through the orders passed on I.A. Nos. 9 and 12 are the very matters which are in controversy between the parties even in I.A. No. 20 also. Under these circumstances, the dismissal of the appeals is sought. 20. Having thus heard both sides and after going through the orders passed on I.A. Nos. 9 and 12 and the appeals which were allowed by this Court in M.F.A. No. 11783 of 2006 connected with M.F.A. No. 11785 of 2006 as well as the Apex Court order, what is clear is that the plaintiffs suit for partition and separate possession is in respect of ‘A’ and ‘B’ Schedule property. ‘A’ Schedule property is situated in Ulsoor road in Bangalore. I.A.No. 20 is filed in respect of the very same ‘A’ Schedule property situated-at Ulsoor road. The area has been indicated in the said I.A. as 33708 sq. ft. and another portion measuring 6475 sq. ft. It is therefore clear that both in the earlier I.As. filed by the plaintiffs I.A. Nos. 9 and 12 as well as in the present I.A. No. 20, what is involved is suit Schedule ‘A’ property. It is only in respect of a portion of the ‘A’ Schedule property that the matter reached upto the Apex Court on I.As. 9 and 12 and only in respect of another portion of suit ‘A’ Schedule property I.A. No. 20 has been filed by the plaintiffs. The Apex Court while dismissing the civil appeals filed by the plaintiffs has gone on to observe in para 15 that the appellants never exercised any act of possession and also quoted the observations of the Trial Judge at paras 41 and 42 and thereafter taking note of the documents relied on by the defendants, went on to observe at para 17 that the date of adoption categorically establishes that the properties were to belong to Puttathayamma during her lifetime, and thereafter the same was passed on to her son Ramachandra (defendant 1) and after referring to various lease deeds executed by the said Ramachandra, the Apex Court went on to observe at para 18 that a person who had kept quiet for a long time and allowed another person to deal with the properties exclusively, ordinarily would not be entitled to an order of injunction and the Court will not interfere only because the property is a very valuable one. Thereafter, the Apex Court ultimately made the observations in paras 23 and 24 which have been already referred to by him in the preceding paragraphs. 21. Apart from the aforesaid observations of the Apex Court, one other aspect to be taken note of is that this Court while allowing the MFAs filed by the defendants and setting aside the order passed on I.A. Nos. 9 and 12 went on to categorically hold that the plaintiffs have failed to establish a prima facie case in their favour. This finding of this Court in the MFA Nos. 11783 of 2006 connected with 11785 of 2006 has not been disturbed by the Apex Court. In other words, insofar as establishing a prima facie is concerned, even in respect of entire suit Schedule ‘A’ property is concerned, the finding of the Apex Court by implication has only confirming the finding of this Court the plaintiffs have no prima facie case. 22. Secondly, constructions have come up in certain portion of the suit ‘A’ Schedule property and the said constructions were allowed to be continued by the Apex Court in the light of the direction given while dismissing the civil appeals. 23. Learned Counsel Sri Batra for the respondents also argued that the sanction plan for the entire ‘A’ schedule property is one and the same and the construction that is now being taken up is nothing but the continuation of the construction that has taken place in other parts of ‘A’ Schedule property. The defendants have invested more than Rs. 3 crores (Rupees three crores) for the construction work of the portion that is now subject-matter of these appeals and the construction that is taken up now in the portion involved in I.A. No. 20 is the construction in the very same suit ‘A’ Schedule property. When this Court has clearly held that insofar as the establishment of prima facie is concerned, the plaintiffs have failed to establish the same, the said finding will operate not only in respect of the portion where construction was taken up earlier but even in respect of the other portion of ‘A’ Schedule property. 24. When this Court has clearly held that insofar as the establishment of prima facie is concerned, the plaintiffs have failed to establish the same, the said finding will operate not only in respect of the portion where construction was taken up earlier but even in respect of the other portion of ‘A’ Schedule property. 24. Under these circumstances, the Trial Court was justified in rejecting I.A. No. 20 and as far as the conditions imposed by the learned Trial Judge are concerned, the said conditions have been imposed on the defendants on the lines of the conditions laid down by the Apex Court and as the suit ‘A’ Schedule is one and the same in the appeals that went upto the Apex Court from out of the order passed on I.A. Nos. 9 and 12 and in the present appeals which have arisen out of I.A. 20, the Trial Court was justified in putting similar conditions on the defendants in the interest of justice. The ruling referred to by the learned Counsel Sri G.S. Bhat for the appellants, in my opinion, rather helps the case of the defendants in the sense that the very same suit ‘A’ Schedule property is involved though a portion of it is now subject-matter of I.A. No. 20 whereas the other portions was subject-matter of I.As. 9 and 12. 25. For the above reasons, the appeals lack merit and they are dismissed. It is made clear that the observations made herein above shall not have any bearing on the merits of the case upon trial. Before winding up of this matter, it is also impressed upon the parties to co-operate in the early disposal of the suit particularly in the light of the observations of the Apex Court at para 24 of its order.