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2019 DIGILAW 630 (KAR)

G. R. RAGHAVENDRA SWAMY v. NAGARATHNA BAI

2019-03-12

B.VEERAPPA

body2019
JUDGMENT : B.Veerappa, J. The unsuccessful second defendant has filed the present writ petition against the order dated 24.11.2018 passed in M.A.No.19 of 2018 on the file of the 3rd Additional District Judge, Shivamogga as per Annexure 'L' dismissing the appeal, confirming the order passed by the Trial Court dated 18.06.2018 on I.A.No.8 in O.S.No.180 of 2016 as per Annexure 'J', granting temporary injunction in favour of the plaintiffs, restraining defendant No.2 from alienating Item Nos.2 to 5 of suit schedule property till the disposal of the suit. 2. For the sake of convenience, the parties are referred to as per their ranks before the Trial Court. 3. The respondents No.1 and 2 herein who are the plaintiffs before the Trial Court filed a suit seeking for partition of half the share of plaintiff No.1 and half of the share of plaintiff No.2 of the suit schedule property and alternatively, to declare that the registered Will dated 19.09.2003 executed and registered by S.R.Krishna Singh is void and not binding on the rights of the plaintiffs; to declare that the registered Sale Deeds and Sale Agreement executed by the 1st defendant in favour of the 2nd defendant are all void and not binding on the rights of the plaintiffs and consequently direct the defendants to put the plaintiffs No.1 and 2 in vacant possession of the said properties. 4. The facts leading to filing of this writ petition are as under: Plaintiff No.1 is the wife of late Krishna Singh and plaintiff No.2 is the daughter of late Krishna Singh. Krishna Singh expired on 21.05.2015. Plaintiff No.1 has also filed maintenance petition against late Krishna Singh and maintenance was also granted to plaintiff No.1. There was no marriage of Krishna Singh with any other and there was no adoption of defendant by late Krishna Singh. Recently, plaintiff came to know that all the schedule properties were given by Krishna Singh to his adopted son and all the schedule properties were transferred to the name of the first defendant, all these things are fraud and as per them, Krishna Singh adopted defendant when the defendant's age was aged 41 years and Krishna Singh was aged 75 years and his wife was aged 60 years. All these relations are false, baseless and against law and therefore, filed a suit in O.S.No.180 of 2016. All these relations are false, baseless and against law and therefore, filed a suit in O.S.No.180 of 2016. The first defendant filed written statement and denied the plaint averments and also denied the relationship of the plaintiffs with late Krishna Singh and contended that he is the adopted son of late Krishna Singh and Krishna Singh executed all his properties in his favour under registered Will and sought for dismissal of the suit. 5. The plaintiffs also filed an application under Order 39 Rule 1 and 2 read with Section 151 of the Code of Civil Procedure seeking temporary injunction against defendant No.2 and his men from alienating the schedule properties No.2 to 5 till the disposal of the suit. The said application was resisted by defendant No.2 by filing written statement, reiterating the plaint averments. 6. The Trial Court, after considering the application and objections by its order dated 18.06.2016 granted temporary injunction in favour of the plaintiff as prayed for. Aggrieved by the said order passed by the Trial Court, defendant No.2 filed an appeal in M.A.No.19 of 2018 before the Principal District and Sessions Judge, Shivamogga who after hearing both the parties by impugned order dated 24.11.2018 dismissed the appeal and confirmed the order passed by the Trial Court granting temporary injunction. Aggrieved by the said order, defendant No.2 has filed the present writ petition. 7. I have heard Sri G.Lakshmeesh Rao, learned counsel for the petitioner. 8. Learned counsel for the petitioner/defendant No.2 contended that the impugned order passed by the Trial Court granting temporary injunction is erroneous, contrary to the material on record. He further contended that when the defendants have filed Written Statement denying the relationship of the plaintiffs as wife and daughter of late Krishna Singh, question of granting injunction does not arise. He further contended that in a doubtful case, injunction cannot be granted. Unfortunately, both the Courts below have proceeded to grant injunction in a doubtful case as the plaintiff No.1 has admitted in Crl.Misc.No.22 of 1997, proceedings initiated under Section 125 of Cr.P.C. that she is not the legally wedded wife of Krishna Singh. Therefore, he contends that the order passed by the Courts below are wholly illegal and sought to allow the writ petition. 9. Therefore, he contends that the order passed by the Courts below are wholly illegal and sought to allow the writ petition. 9. In support of his contention, learned counsel for the petitioner relied upon the judgment of the Hon'ble Supreme Court in the case of S.P.Chengalvaraya Naidu (dead) by LRs Vs. Jagannath (dead) by LRs and others, (1994) 1 SCC 1 . So also the dictum of this Court in the case of Lakshminarasimhiah and others Vs. Yalakki Gowd, (1965) AIR Mysore 310. He draws the attention of this Court to Paragraph No.7 of the said judgment and submits that the order passed by the courts below are liable to be quashed. 10. Having heard the learned counsel for the petitioner, it is an undisputed fact that the plaintiffs No.1 and 2 claims to be the wife and daughter of late Krishna Singh and filed a suit for partition and separate possession and certain declarations contending that they are legally wedded wife and daughter of late Krishna Singh and Krishna Singh never adopted the first defendant and also sought an interim order to restrain the defendants from alienating the suit schedule properties. The defendants filed the written statement, denying the plaint averments and also disputed the relationship between the parties and contended that that the first defendant is the adopted son of late Krishna Singh and has right to alienate the suit schedule properties in favour of the second defendant. 11. On the application filed for temporary injunction, the Trial Court after considering the contentions raised by the learned counsel for the defendants has proceeded to record a finding that defendant No.1 in para No.5 of the written statement has claimed testamentary succession over the suit schedule property on the basis of Will executed by late Krishna Singh. Both the defendants in their written statement have not disclosed the details of the said Will or whether it was registered or unregistered. Items No.2 to 5 of the suit schedule properties are agricultural lands and the plaintiffs have sought for temporary injunction restraining defendant No.2 from alienating the property pending disposal of the suit. If the injunction is granted, the second defendant is not going to suffer any injury and on the other hand, if interim order is not granted and defendant No.2 alienates the property, it leads to multiplicity of proceedings and the plaintiffs will be put to irreparable injury. If the injunction is granted, the second defendant is not going to suffer any injury and on the other hand, if interim order is not granted and defendant No.2 alienates the property, it leads to multiplicity of proceedings and the plaintiffs will be put to irreparable injury. Whether the plaintiffs are widow and daughter of deceased Krishna Singh is a matter to be decided during trial. The learned Advocate appearing for defendant No.2 has produced documents and vehemently argued plaintiff No.1 has admitted in the proceedings filed under Section 125 of Cr.P.C. that she is not the legally wedded wife of Krishna Singh. Even in the event plaintiff No.2 establishes that she is the daughter of deceased Krishna Singh, entitled to claim succession over the suit schedule property. As per Section 31 of the Indian Evidence Act, admission is not conclusive proof, but they may operate as estoppels. The aforesaid reasons of plaintiffs have made out a case to grant injunction by the Trial Court. 12. On re-consideration of the entire material on record, the Appellate Court concurring with the findings of fact recorded by the court below, recorded a finding that admittedly, Items No.2 to 5 of the suit schedule property is the agricultural land. Defendant No.2 has contended that he is the bonafide purchaser for a valuable consideration of Rs.20 Lakhs. The rival parties have disputed their relationship between late S.R.Krishna Singh. The plaintiffs have challenged the validity and genuinity of the alleged Will and adoption deed, which could be seen from their pleadings. 13. The learned trial Judge after considering all the facts and circumstances of the case, has arrived at a conclusion that if temporary injunction order is granted against defendant No.2 by restraining from alienating the suit schedule property, he is not going to suffer any injury otherwise plaintiffs will be put to irreparable injury. On going through the findings of the learned trial Judge, the Appellate Court was of the view that there is no illegality or perversity found in the impugned order to interfere with the same, when there is a serious dispute regarding the relationship and documents on which the parties are relied, has to be proved by the parties in the trial. It is also to be noted that, admittedly, the trial is in the fag end before the trial court and dismissed the appeal. 14. It is also to be noted that, admittedly, the trial is in the fag end before the trial court and dismissed the appeal. 14. The material on record clearly depicts that the plaintiffs claiming to be the wife and daughter of late Krishna Singh have disputed the adoption of first defendant. The defendants filed written statement and denied the contentions of the plaintiffs and contended that the first defendant is the adopted son of late Krishna Singh. There is a dispute with regard to relationship of wife and daughter. It has to be adjudicated before trial. If the Court comes to the conclusion, it will effect either parties. Therefore, the trial court is of the considered opinion restraining defendant No.2 from alienating the suit schedule properties till the disposal of the suit and the same was confirmed by the appellate court, which is just and proper. When the relationship of late Krishna Singh with the plaintiffs and first defendant is disputed, it has to be adjudicated after full fledged trial. Though learned counsel for the petitioner relied upon the judgment of the Hon'ble Apex Court in Chengalvaraya Naidu's case, it was a case decided on merits. The Apex Court held that decree obtained by non- disclosure of the release deed amounted to fraud on court and hence decree is liable to be set aside. In the present case, the dispute between the parties can be adjudicated only after full fledged trial, it cannot be considered as fraud unless it is proved by defendants. Therefore, the Chengalvaraya Naidu's case has no application to present facts of the case as we are at the stage for considering the application for temporary injunction. 15. In so far as Yalakki Gowda's case of this Court as referred to by the learned counsel for the petitioner, at para No.7, this Court has specifically recorded a finding that granting or refusing of injunctions is a matter resting in the sound discretion with the trial court and consequently no injunction will be granted whenever it will operate oppressively, or inequitably, or contrary to the real justice of the case. In exercising the discretionary power, the courts should be guided by the guiding principles. There is no power which is more delicate, which requires greater caution, deliberation, and sound discretion, or is more dangerous in a doubtful case, than the issuing an injunction. In exercising the discretionary power, the courts should be guided by the guiding principles. There is no power which is more delicate, which requires greater caution, deliberation, and sound discretion, or is more dangerous in a doubtful case, than the issuing an injunction. It is the strong arm of equity, that never ought to be extended unless to cases of great injury, where courts of law cannot afford an adequate or commensurate remedy in damages. The right must be clear, the injury impending or threatened, so as to be averted only by the protecting preventive process of injunction. But that will not be awarded in doubtful cases. 16. Admittedly, the suit schedule properties are the self-acquired properties of late S.R.Krishna Singh and both the plaintiffs and defendants are claiming that they are the widow, daughter and adopted son of late S.R.Krishna Singh. The dispute has to be thrashed out after full-fledged trial. Both the courts have concurrently held that merely on the basis of admission of the plaintiffs in an affidavit filed under Section 125 of Cr.P.C., it cannot be held that she has admitted that she is not a legally wedded wife of late S.R.Krishna Singh and plaintiff No.2 is not their daughter. If ultimately, the plaintiffs are able to prove that they are the wife and daughter of late S.R.Krishna Singh, by that time, the second defendant may alienate the entire property, which will lead to multiplicity of proceedings and plaintiffs will be put to irreparable injury. Whether the plaintiffs are widow and daughter of deceased Krishna Singh is a matter to be decided during trial. 17. On careful perusal of the findings recorded by both the courts below, this Court is of the opinion that there is no illegality or perversity in the impugned orders to interfere with the same. When there is a serious dispute regarding the relationship between the parties, it has to be proved by the parties after full-fledged trial. In view of the aforesaid reasons, the impugned order passed by both the courts below are just and proper. The petitioner has not made out any ground to interfere with the same in exercise of power under Article 227 of the Constitution of India. Accordingly, writ petition is dismissed.