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2017 DIGILAW 615 (KAR)

B. v. Ramachandrappa VS Gowramma

2017-03-20

B.VEERAPPA

body2017
ORDER : B. Veerappa, J. The unsuccessful plaintiffs have filed the present writ petitions against the order dated 3-1-2017 passed in M.A. No. 15002 of 2014 by the V Additional District and Sessions Judge, Devanahalli rejecting I.A. No. 2 filed under Order 39, Rules 1 and 2 of the Code of Civil Procedure, 1908 in O.S. No. 340 of 2013 and allowing the appeal by setting aside the order passed by the Trial Court. 2. The present petitioners, who are plaintiffs before the Trial Court had filed a suit - O.S. No. 340 of 2013 for partition and separate possession in respect of the suit schedule property more-fully described in the schedule contending that the suit schedule property is a joint family property of the plaintiffs and defendants 1 to 5. It is their case that they came to know that the suit schedule property is acquired by the 6th respondent in the year 2007 when they had filed a suit for partition and separate possession. The other defendants did not file their written statement. The 2nd defendant filed her written statement denying the plaint averments and contended that the suit schedule property is purchased by her under a registered sale deed dated 4-5-1984 and she is in possession and enjoyment of the same. She further contended that the suit schedule property is the self-acquired property and it is not the joint family property as alleged by the plaintiffs; that there is no material documents to show that it is a joint schedule property; that if it is a joint family property, in the earlier two suits filed by the 3rd defendant i.e., O.S. No. 345 of 2009 and by the 1st defendant i.e., O.S. No. 398 of 2009, it was not included though the suits were filed for partition. Therefore, she sought to dismiss the suit. 3. The plaintiffs filed I.A. for temporary injunction reiterating the plaint averments. The said application was resisted by defendant 2 by filing objections. 4. The Trial Court considering the entire material on record by the impugned order dated 9th December, 2013 allowed I.A. No. II filed by the plaintiffs and granted temporary. Therefore, she sought to dismiss the suit. 3. The plaintiffs filed I.A. for temporary injunction reiterating the plaint averments. The said application was resisted by defendant 2 by filing objections. 4. The Trial Court considering the entire material on record by the impugned order dated 9th December, 2013 allowed I.A. No. II filed by the plaintiffs and granted temporary. Aggrieved by the said order, the 2nd defendant filed M.A. No. 15002 of 2014 before the V Additional District and Sessions Judge, Devanahalli, who after hearing both the parties by the impugned order dated 3rd January, 2017 allowed the appeal and set aside the temporary injunction order dated 9th December, 2013. Hence, the present writ petitions are filed by the plaintiffs. 5. I have heard the learned Counsel for the parties to the lis. 6. Sri K. Shivashankar, learned Counsel for the petitioners-plaintiffs vehemently contended that the impugned order passed by the Appellate Court is erroneous and contrary to the material on record; and that it has not considered the fact that the suit schedule property is the joint family property of the plaintiffs and defendants and hence, the plaintiffs are entitled to the share in the same and property in question is acquired by the Karnataka Industrial Area Development Board. Hence the plaintiffs are also entitled for the amount of compensation. It is his further contention that the Appellate Court has not considered the fact that the Trial Court considering the entire material on record has granted injunction and as such, the discretionary order granted by the Trial Court cannot be interfered with unless the same is erroneous, perverse and contrary to the material on record. The learned Counsel further contended that the though in the two suits earlier filed by the members of the joint family for partition, one suit which was for partition came to be compromised and there was no opportunity for them to file written statement and in the second suit filed by the 1st defendant, it was dismissed as withdrawn. Therefore, there was no opportunity for them to show that the suit schedule property is the joint family property and the same is not considered by the Lower Appellate Court. Therefore, he sought to set aside the impugned order passed by the Lower Appellate Court and restore the order passed by the Trial Court. 7. Therefore, there was no opportunity for them to show that the suit schedule property is the joint family property and the same is not considered by the Lower Appellate Court. Therefore, he sought to set aside the impugned order passed by the Lower Appellate Court and restore the order passed by the Trial Court. 7. Per contra, Sri T. Seshagiri Rao, learned Counsel for the Caveator-2nd defendant sought to justify the impugned order passed by the Lower Appellate Court and contended that if it was a joint family property, there was no impediment for the plaintiffs, who were parties in O.S. Nos. 345 and 398 of 2009 to bring the said fact to the notice of the Court or to raise any objection that the same shall be included in the said suit and O.S. No. 345 of 2009 having ended in a compromise between the parties, the plaintiffs got a share in respect of other properties. Therefore, now it is not open for them to contend that the suit schedule property is a joint family property of plaintiffs and defendants. He further contended that the sale deed clearly indicates that the property is purchased in the name of respondent 1/2nd defendant which is a self-acquired property and hence, the Lower Appellate Court is justified in passing the impugned order. Therefore, he sought for dismissal of the writ petitions. 8. Having heard the learned Counsel for both parties to the lis, the only point that arises for consideration is: Whether the Lower Appellate Court is justified in allowing the appeal by setting aside the order passed by the Trial Court in the facts and circumstances of the present case? 9. It is an undisputed fact that earlier the very 3rd defendant filed O.S. No. 345 of 2009 against the plaintiffs and defendant 1 in respect of the joint family property for partition and separate possession which was ended in a compromise between the plaintiffs and defendant 3 and other defendants. In the said compromise, either of the parties to the suit never raised any objection with regard to non-inclusion of the present suit property in the said suit. Though the plaintiffs were party in the said suit, they could have raised an objection that one of the property was not included in the said suit. In the said compromise, either of the parties to the suit never raised any objection with regard to non-inclusion of the present suit property in the said suit. Though the plaintiffs were party in the said suit, they could have raised an objection that one of the property was not included in the said suit. Now the said suit having ended in a compromise in respect of the joint family properties, without raising any objection, it is not open for the plaintiffs to contend that the suit schedule property is a joint family property at this stage. It is also not in dispute that defendant 1 also filed another suit - O.S. No. 398 of 2009 in respect of the joint family property, wherein the plaintiffs were also parties and other defendants and that the plaintiffs-petitioners did not raise any objection and consequently, the said suit came to be dismissed. Thus it is clear from the material on record that in O.S. Nos. 345 and 398 of 2009, defendant 2 was not impleaded as a party and the suit property was not included in the said suits, which prima facie indicate that the suit schedule property is the self-acquired property of defendant 2. 10. Whether the suit schedule property is a joint family property as contended by the plaintiffs nor it is a self-acquired property of defendant 2 is a matter of adjudication between the parties by adducing oral and documentary evidence and can be decided after trial. The Trial Court while considering I.A. No. 2 for grant of equitable order of temporary injunction, has not considered the fact that in the earlier two suits stated supra filed in the year 2009 by defendant 3 and defendant 1, the suit schedule property was not included and neither of the parties raised any dispute with regard to non-inclusion of the suit property stating that the suit property is a joint family property which was purchased by the 2nd defendant out of the joint family funds and it is only in the year 2013, the plaintiffs have filed the present suit contending that the suit property is also the joint family property and it was left out in the earlier suits. These aspects have not been considered by the Trial Court and only by saying that the plaintiffs have made out a prima facie case and hence, there is a case for trial. It has also said that the claim of the plaintiffs at this stage is not frivolous; that the substantial question whether it is a self-acquired property of 2nd defendant out of the joint family income has to be decided during trial; that the balance of convenience is in favour of plaintiffs. 11. On reconsideration of the entire material on record, the Lower Appellate Court has held that the Trial Court was not justified in granting temporary injunction, and recorded a specific finding of fact which reads as under: "Present plaintiffs and defendant 1 are sons of late Venkataswamappa and defendants 3 to 5 are his daughters. Defendant 2 is wife of defendant 1. On going through entire records, it goes to show that litigation are going on since 2009 in respect of joint family properties. Why because the present defendant 3-Smt. Kyathamma filed suit for partition and separate possession in respect of several joint family properties before Senior Civil Judge and JMFC, Devanahalli, in O.S. No. 345 of 2009 which ended in compromise on 2-9-2009. On perusal of records of the parties, the said suit appeared before the Court and got compromised. In the Trial Court record I can see joint compromise petition before the Court and decree was drawn. The said decree was the final decree drawn by the Court. Even there was one more suit which was filed by respondent 3/defendant 1-Sri B.V. Shamanna for partition and separate possession in O.S. No. 398 of 2009 for same relief which ultimately came to be withdrawn as there was compromise in O.S. No. 345 of 2009. Necessarily the present suit property bearing Sy. No. 1/P28 measuring 6 acres was not included either in O.S. No. 345 of 2009 or in O.S. No. 398 of 2009. The strong argument by learned Counsel for the 2nd defendant is that it was her self-acquired properties as she purchased it through registered sale deed dated 4-5-1984 for consideration of Rs. 20,000/-. The copy of said sale deed is also produced. The strong argument by learned Counsel for the 2nd defendant is that it was her self-acquired properties as she purchased it through registered sale deed dated 4-5-1984 for consideration of Rs. 20,000/-. The copy of said sale deed is also produced. Now the strong argument of appellant is that, if really suit schedule property was joint family property definitely parties would have been included it in O.S. No. 345 of 2009, which was admittedly ended in compromise. So definitely it is hit by Order 2, Rule 2 of CPC. Therefore, I am of the opinion that the Trial Court has totally ignored these factors. That apart the compromise was entertained by Competent Civil Court in the presence of all parties who have accepted compromise excluding present suit schedule property. Facts being so now after lapse of so many years the present plaintiffs have raised and filed this suit in respect of schedule property, which was admittedly purchased by 2nd defendant. Therefore, I am of the opinion that in case injunction is granted against the person, she would be put into hardship as her valuable right would be taken away. Secondly the non-inclusion of present suit property in O.S. No. 345 of 2009 itself sufficient to show that it was not joint family property. So, viewed from any angle, I do not accept the arguments of plaintiffs that they have made out prima facie case. So naturally balance of convenience does not tilt in their favour. So the impugned order requires interference by this Court. So I answer these points accordingly." Therefore, the Lower Appellate Court allowed the appeal and set aside the order passed by the Trial Court. 12. The Lower Appellate Court after re-appreciating the entire material on record, recorded a specific finding that the Trial Court was not justified in granting temporary injunction, when the suit property was not included in either of the suits stated supra and admittedly the 2nd defendant was not impleaded as a party to the said suits and the plaintiffs never raised objection that it is a joint family property. Therefore, the Lower Appellate Court was justified in passing the impugned order. 13. Therefore, the Lower Appellate Court was justified in passing the impugned order. 13. In view of the aforesaid reasons, the point raised in the present writ petitions is answered in the affirmative holding that the lower appellate is justified in allowing the appeal and the plaintiffs-petitioners have not made out any ground to interfere with the impugned order in exercise of writ jurisdiction under Article 227 of the Constitution of India. Accordingly, writ petitions are dismissed.