Kariyamma W/o Naganna v. Nagappa S/o late Chithappa
2018-05-08
ARAVIND KUMAR
body2018
DigiLaw.ai
ORDER : Petitioners have filed the suit in O.S.No.110/2016 before the Prl. Civil Judge and J.M.F.C at Madhugiri for partition and separate possession of suit schedule properties. I.A. No. IV came to be filed under Order 39 Rule 1 and 2 of Civil Procedure Code for grant of temporary injunction to restrain defendants1 and 2 from interfering/obstructing plaintiffs’ joint possession and enjoyment of the suit schedule properties. 2. The learned Trial Judge after considering the objections filed to the said application, by order dated 06.04.2017 allowed the application as prayed for. 3. Being aggrieved by the same second defendant filed an appeal in M.A. No.18/2017 on the file of Additional Senior Civil Judge and JMFC, Madhugiri. By order dated 12.01.2018, appeal came to be allowed by setting aside the order passed by the Trial Court and dissolved the order of injunction vested in so far as, Item No.3 of the suit schedule property is concerned. Hence, this appeal by plaintiff. 4. Perusal of the order passed by the Hon’ble Apex Court would clearly disclose that first defendant had sold the said suit schedule property in favour of second defendant and the contention of plaintiff is that it is an ancestral property and only by virtue of revenue records having been mutated to the name of first defendant, he could not have sold the property unilaterally to second defendant depriving the rights of plaintiffs. 5. Learned Appellate Judge while reappreciating the material documents produced before the Trial Court has found that defendant No.1 has specifically contended that sale has been effected by him due to family necessity and the said sale has taken place much prior to filing of the suit for partition. 6. Even according to the plaintiffs, defendant No.1 is also entitled to the right over Item No.3 of the suit schedule properties as such, learned Appellate Judge has rightly observed that there cannot be injunction against the co owner. 7. While considering an application for temporary injunction, three ingredients which requires to be considered being prima facie case, balance of convenience, irreparable loss and injury that would be caused in the event of refusal of temporary injunction. These three aspects have been taken into consideration by the learned appellate judge.
7. While considering an application for temporary injunction, three ingredients which requires to be considered being prima facie case, balance of convenience, irreparable loss and injury that would be caused in the event of refusal of temporary injunction. These three aspects have been taken into consideration by the learned appellate judge. From recitals of the sale deed executed by first defendant in favour of second defendant, it prima-facie discloses that property was sold for family necessity and it was much prior to the institution of the suit. Trial judge has also found that revenue records had been mutated to the name of second defendant and thereby it would disclose that the katha has been transferred to the name of second defendant and she has been in possession and enjoyment of said suit schedule property. 8. Even accepting the claim of plaintiffs for a moment that it was a joint family property and first defendant as kartha or manager of Hindu Undivided Family could not sold or alienated item No.3 of suit schedule property in favour of second defendant is accepted, then such a transaction would be voidable and not void. The remedy available to the coparcener is to file a suit for partition and seek possession of the said property and it is this precise exercise which the plaintiff is said to have undertaken. 9. It is in this background, the learned appellate Judge has rightly found that second defendant has been put in possession of item No.3 of suit schedule property and as such said possession requires to be protected and has also held that in the event of order of temporary injunction is granted in favour of plaintiffs, it would unsettle by settled possession of second defendant. As such, it has rightly dissolved the order of temporary injunction granted by trial Court. Same does not call for any interference since said order does not suffer from any material illegality or irregularity calling for interference at the hands of this Court in the exercise of supervisory jurisdiction. No grounds are made out. Hence, writ petitions are hereby rejected.