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2018 DIGILAW 685 (KAR)

A. N. UMASHANKAR v. A. V. KEMPANNA

2018-06-11

B.SREENIVASE GOWDA

body2018
JUDGMENT : B. Sreenivase Gowda, J. 11th respondent in R.A. No. 27 of 2018 on the file of the I Additional Sessions Judge, Kolar has preferred this miscellaneous first appeal under Order 43, Rule 1(r) of Civil Procedure Code, 1908 challenging the order dated 29-1-2018 whereunder, the First Appellate Court has allowed I.A. No. 1 filed by the respondent 1 (plaintiff) and granted temporary injunction restraining the appellant (11th defendant in O.S. and 11th respondent in R.A.) from withdrawing the compensation amount from the Express Highway Authorities with respect to suit item No. 17 bearing Sy. No. 48/1 of Vardenahalli Village, Kasaba Hobli, Malur Taluk, Kolar District, for a period of six months. 2. Heard the learned Counsel for the parties and perused the impugned order passed by the First Appellate Court. 3. Facts leading to this appeal are as under: First respondent (plaintiff) filed a suit in O.S. No. 163 of 2017 against the appellant and respondents 2 to 11 for the relief of partition and separate possession of his half share in the suit properties. Along with the suit, plaintiff filed an application under Order 39, Rules 1 and 2 of CPC praying the Trial Court to grant an order of temporary injunction restraining the defendants, their agents, servants, or any other persons claiming through the defendants from alienating the suit schedule properties during the pendency of the suit. The Trial Court ordered suit summons and notice on I. A. No. 1 to the defendants. The appellant who is the 11th defendant in O.S. No. 163 of 2017 and 11th respondent in R.A. No. 27 of 2018 after entering appearance in the suit, made an application under Order 7, Rule 11(d) of the Civil Procedure Code praying the Trial Court to reject the plaint on the ground that the plaintiff who claims to be the grandson of the propositus School Muniswamappa through his first wife's daughter, on the death of said School Muniswamappa in the year 2003, is not entitled for any share in the suit property owned by the said School Muniswamappa as per the judgment of the Hon'ble Supreme Court in the case of Prakash v. Phulavati and Others AIR 2016 SC 769 : 2016 (157) AIC 111 (SC), (2016) 2 SCC 36 . 4. The application was resisted by the plaintiff. 4. The application was resisted by the plaintiff. The Trial Court after hearing learned Counsel for the plaintiff and 11th defendant, allowed the application and rejected the plaint. 5. The plaintiff aggrieved by the said order of the Trial Court, challenged the same by preferring RA No. 27 of 2018 before the First Appellate Court. Along with the appeal, the plaintiff made an application under Order 39, Rules 1 and 2 of CPC read with Section 151 of CPC praying the First Appellate Court to grant an order of temporary injunction restraining the appellant (11th defendant in the suit and 11th respondent in RA) from withdrawing the compensation amount from the Express highway Authorities with respect to suit item No. 17 bearing Sy. No. 48/1 of Vardenahalli Village, Kasaba Hobli, Malur Taluk, Kolar District, for a period of six months. 6. The grievance of the appellant is that the First Appellate Court having heard I.A. No. 1 as well as main appeal neither disposed of I.A. No. 1 nor the main appeal. 7. Sri. Srinivas, learned Counsel for the appellant submits that even if the plaintiff succeeds in R.A. and in the suit, he will be entitled for half share in the suit schedule property as prayed in the suit. Thereby, he submits that item No. 17 of the suit schedule property totally measures 3 acres 19 guntas, of which only 1 acre 21 guntas came to be acquired by the National Highway Authority for formation of Bengaluru - Chennai Express Highway, and still 1 acre 38 guntas is available for partition and therefore, if plaintiff succeeds in the suit, he can easily have his half share in Item No. 17 of the suit property and he will not be put to any hardship. Therefore, he submits that the First Appellate Court was not justified in granting temporary injunction restraining the appellant from withdrawing the compensation amount from the Express National Highway Authority. Learned Counsel submits that appellant is prepared to give an undertaking to the Court that he will not alienate or encumber the remaining 1 acre 38 guntas in item No. 17 of the suit schedule property from which 1/2 share of the plaintiff amounting 1 acre 29-1/2 guntas could be allotted towards the share of the plaintiff in the event of plaintiff succeeding in the suit. He further submits that if the remaining 1 acre 38 guntas is going to be acquired by any Authority, appellant is not going to take compensation till disposal of RA and he is prepared to give an undertaking in that regard. With the above and other grounds, he prays for setting aside the order passed by the First Appellate Court. 8. Sri. Alva, learned Counsel appearing for the first respondent (plaintiff) submits that since the First Appellate Court has not considered the objection filed by the appellant and passed orders on IA No. 1, this Court may direct the First Appellate Court to consider and pass orders on IA No. 1 filed in RA No. 27 of 2018 or in the alternative may direct the First Appellate Court to dispose of RA itself expeditiously. Learned Counsel submits, 1 acre 21 guntas out of 3 acres 19 guntas in suit item No. 17 came to be acquired by the National Highway Authority for formation of Bengaluru - Chennai Express Highway and therefore, First Appellate Court was justified in restraining appellant from withdrawing the compensation amount from the Express Highway Authority for a period of six months. With the above and other grounds, he prays for disposal of the appeal. 9. First respondent (plaintiff) filed a suit in O.S. No. 163 of 2017 against respondents 2 to 11 and the appellant before the Senior Civil Judge and Judicial Magistrate of First Class at Malur for partition and separate possession of his half share in the suit schedule properties. There are 17 items in the plaint schedule. Item No. 17 of the plaint schedule measures 3 acres 19 guntas, of which 1 acre 21 guntas came to be acquired by the National Highway for formation of Bengaluru - Chennai National Express Highway. Plaintiff, along with the suit, had made an application under Order 39, Rules 1 and 2 of CPC praying the Trial Court to grant ad interim of temporary injunction restraining the defendants, their agents, servants, or any other persons claiming through the defendants from alienating the suit schedule properties till disposal of the suit. The Trial Court declined to grant ad interim order of temporary injunction and it had ordered suit summons and notice on I.A. No. 1 to the defendants. The Trial Court declined to grant ad interim order of temporary injunction and it had ordered suit summons and notice on I.A. No. 1 to the defendants. The appellant herein (11th defendant in O.S. and 11th respondent in R.A.) after entering appearance in the suit made an application under Order 7, Rule 11(d) of CPC praying the Trial Court to reject the plaint on the ground that plaintiff is in no way related to the family of his vendor. Plaintiff claims to be the grandson of the propositus School Muniswamappa and therefore on death of said School Munishamappa, plaintiff is not entitled for any share in the suit properties owned by School Muniswamappa. Application was resisted by the plaintiff by reiterating the averments made in the plaint. The Trial Court, after hearing the learned Counsel appearing for the parties allowed the application filed by the 11th defendant under Order 7, Rule 11 and rejected the plaint. 10. The plaintiff aggrieved by the said order of the Trial Court challenged the same by preferring RA No. 27 of 2018 before the First Appellate Court. Along with the appeal, the plaintiff made an application under Order 39, Rules 1 and 2 read with Section 151 of CPC praying First Appellate Court to grant an order of temporary injunction restraining the appellant (11th defendant in RA as well in the suit) from withdrawing compensation amount from the Express National Highway Authorities. 11. Perusal of the order sheet of RA No. 27 of 2018 would show that the First Appellate Court straightaway allowed the application filed by the first respondent (plaintiff in O.S. and appellant in R.A.) under Order 39, Rules 1 and 2 of CPC and granted temporary injunction restraining the appellant (11th defendant in O.S. and 11th respondent in R.A.) from withdrawing the compensation amount for a period of six months. If the First Appellate Court had satisfied with the prima facie case made out by the plaintiff, it could have granted an ad interim order of injunction for a limited period and after providing an opportunity to the appellant to file objection to I.A. No. 1 and after hearing both the parties, it could have disposed of I.A. No. 1 on merit. The 11th defendant (appellant herein) instead of making an application under Order 39, Rule 4 of CPC praying the First Appellate Court to vacate the order of temporary injunction granted in favour of the first respondent since the First Appellate Court had already allowed I.A. No. 1 by granting temporary injunction restraining the appellant from withdrawing the compensation amount for a period of six months. 12. Perusal of the order sheet of the First Appellate Court would further show that, it has heard the plaintiff and 11th defendant on I.A. No. 1 as well on the main appeal but has neither disposed of I.A. No. 1 nor the main appeal. 13. As per the prayer made in the suit, plaintiff is entitled for half share in the suit schedule properties. If plaintiff succeeds in the suit, he will be entitled for 1-29-1/2 guntas out of 3-19 guntas in item 17 of the suit schedule properties and half share in each item of the suit schedule properties. Admittedly, out of 3 acres 19 guntas in Item No. 17 of the suit schedule property only 1 acre 21 guntas came to be acquired by the National Highway Authorities for formation of Bengaluru-Chennai Express Highway and still 1 acre 38 guntas is available and if plaintiff succeeds in the suit, he can have his share of 1 acre 29-1/2 guntas and he will not be put to any hardship. 14. There is no merit in the contention of the first respondent (plaintiff in O.S. and appellant in R.A.) that the land acquired by the National Highway Authorities for formation of the proposed Bangalore-Chennai Express Highway is more potential and fertile than the remaining land available in item 17 of the suit property. Further, there are 17 items in the suit plaint schedule from which the alleged half share of the plaintiff can be easily allotted in his favour if he succeeds in the suit. Thus, the First Appellate Court ought not to have granted temporary injunction restraining the appellant (11th respondent) from withdrawing his share of 50% of the compensation from the Highway Authorities. 15. Thus, the First Appellate Court ought not to have granted temporary injunction restraining the appellant (11th respondent) from withdrawing his share of 50% of the compensation from the Highway Authorities. 15. The learned Counsel for the appellant on instructions from the appellant who is present before the Court submits that appellant (11th defendant) is prepared to give an undertaking to the Court that he is not going to alienate or create encumbrance over the remaining land in Item No. 17 of the suit property and is also prepared to give an undertaking that in the event of acquisition of remaining 1 acre 39 guntas by any authority, he is not going to withdraw compensation amount till disposal of RA. No. 27 of 2018 and he has filed a memo of undertaking in that regard and it is taken on record. If that so, no prejudice will be caused to the first respondent (plaintiff) even if succeeds in the suit. 16. It is to be noted that, the First Appellate Court allowed I.A. No. 1 filed by the 1st respondent (plaintiff in O.S. and appellant in R.A.) and granted temporary injunction on 29-1-2018 for a period of six months, which would be expiring on 29-7-2018. Therefore, justice would be met if temporary injunction granted by the First Appellate Court is modified, by restraining the appellant from withdrawing 50% of the compensation amount and proportionate interest from the Express National Highway Authorities and permitting him to withdraw the remaining 50% of the compensation with proportionate interest and directing the First Appellate Court to dispose of the main appeal itself on or before 29-7-2018. 17. In view of the above, the following order is passed: Appeal is allowed. The impugned order passed by the First Appellate Court on IA. No. 1 is hereby modified. Appellant (11th respondent in R.A. and 11th defendant in O.S.) is hereby restrained from withdrawing 50% of the compensation amount and proportionate interest from Express National Highway Authorities, with respect to acquisition of 1 acre 21 guntas of land in item 17 of the suit property and he is permitted to withdraw the remaining 50% of the compensation amount with proportionate interest from the Express National Highway Authorities, till disposal of RA No. 27 of 2018 by the First Appellate Court. The Special Land Acquisition Officer of Express National Highway Authority shall deposit the remaining 50% of the compensation amount with proportionate interest in any nationalised/scheduled bank till the disposal of R.A. No. 27 of 2018 by the First Appellate Court. First Appellate Court shall dispose of the main appeal itself on or before 29th July, 2018, the date on which the order of temporary injunction granted by it would expire.