Research › Search › Judgment

Karnataka High Court · body

2022 DIGILAW 240 (KAR)

Geetabai @ Radhabai, W/o. Ramakrishnagouda Patil v. Krishnagouda, S/o. Mallangouda Nyamagouda

2022-02-18

M.G.UMA

body2022
JUDGMENT : (M.G. UMA, J.) The appellant in Miscellaneous First Appeal No.100477 of 2021 being the plaintiff in O.S.No.286 of 2019 on the file of Additional Senior Civil Judge and JMFC at Mudhol, (hereinafter referred to as 'the Trial Court') is impugning the order dated 17.04.2021 passed in the said suit on IA No.4 filed under Order XXXIX Rules 1 and 2 read with Section 151 of CPC, whereunder, the said application filed by respondent Nos.1 to 5 who were defendant Nos.1 to 5 in the suit came to be allowed, as a result of which, the plaintiff and defendant Nos.6 to 10 were temporarily restrained from causing damages to the crop standing in the land bearing R.S.Nos.55, 59, 60/1 and 60/3 situated at Melligeri Village, and obstructing the enjoyment of said lands by defendant Nos.1 to 5, till further orders. The appellants in Miscellaneous First Appeal No.100500 of 2021 being defendant Nos.6 and 7 are impugning the very same order passed by the Trial Court. 2. Brief facts of the case are that, the appellant in Miscellaneous First Appeal No.100477 of 2021 filed the suit in O.S.No.286 of 2019 before the Trial Court against defendant Nos.1 to 10 seeking a decree declaring that she is having 1/4th share in the suit schedule properties and for partition and separate possession of her share and also for a consequential relief of restraining the defendants permanently from obstructing the plaintiff's peaceful possession and enjoyment of the properties. 3. It is contended by the plaintiff before the Trial Court that deceased Mallappa @ Mallanagounda and deceased Bhagirathi are her parents. Defendant Nos.1 and 6 are her brothers and defendant No.10 is her sister. The propositus Mallanagouda died during 2012 and Bhagirathi had pre-deceased him as she died in the year 2004. Plaintiff and defendants are the members of Hindu undivided joint family and they are in joint, peaceful possession and enjoyment of the suit schedule properties, which are described in Schedules B to F. The plaintiff and defendant Nos.1, 4 to 6 and 10 being the class-I heirs of the propositus, are having 1/4th share each in the schedule properties. 4. It is stated that defendant No.8 who is the son of defendant No.6 had filed similar suit for partition and separate possession of the schedule properties in O.S.No.29 of 2018 on the file of the learned Principal Senior Civil Judge at Jamakhandi. 4. It is stated that defendant No.8 who is the son of defendant No.6 had filed similar suit for partition and separate possession of the schedule properties in O.S.No.29 of 2018 on the file of the learned Principal Senior Civil Judge at Jamakhandi. The plaintiff herein was arrayed as defendant No.6 in the said suit and she had filed her written statement and the counter claim, seeking her share in the suit properties. The said suit came to be dismissed under Order VII Rule 11 of CPC, but the Court had not taken note of the counter claim filed by the plaintiff herein. 5. It is contended by the plaintiff that the relationship between the parties was strained and the defendants started causing obstruction to the plaintiff's joint, peaceful possession and enjoyment of the suit properties. When the plaintiff verified the revenue records, she came to know that defendant Nos.1 and 6 got changed the record of rights in respect of the suit schedule properties and defendant No.1 got mutated the names of defendant Nos.2 to 5 in some of the record of rights. Similarly, defendant No.6 has also got mutated the names of defendant Nos.7 to 9 in some of the record of rights relating to 'B' schedule property. The said mutation entries standing in the names of defendant Nos.2 to 5 and 7 are not binding on the plaintiff. 6. It is further contended by the plaintiff that defendant Nos.1 to 6 have purchased the suit schedule 'C' to 'F' properties, out of the joint family nucleus and therefore, those properties are also joint family properties which are liable for partition. Plaintiff is having 1/4th share in all the suit schedule properties. It is stated that the cause of action for the suit arose during December, 2018 when the defendants refused to effect partition and allot her 1/4th share in the joint family properties. Therefore, the plaintiff prays for decreeing the suit. 7. Defendant Nos.1 to 5 have appeared before the Trial Court and filed their common written statement denying the contentions taken by the plaintiff. It is contended by defendant Nos.1 to 5 that the suit filed by the plaintiff is barred under Order II Rule 2 and under Section 10 of CPC. Therefore, the plaintiff prays for decreeing the suit. 7. Defendant Nos.1 to 5 have appeared before the Trial Court and filed their common written statement denying the contentions taken by the plaintiff. It is contended by defendant Nos.1 to 5 that the suit filed by the plaintiff is barred under Order II Rule 2 and under Section 10 of CPC. The plaintiff has suppressed the fact that OS No.29 of 2018 was filed by the son of defendant No.6 seeking similar relief for partition and separate possession of the suit properties before the Principal Senior Judge Court at Jamakhandi. The plaintiff being one of the defendant in the said suit had filed counter claim. However, the said suit came to be dismissed as not maintainable. Defendant No.9 herein who is the plaintiff in OS No.29 of 2018 has preferred RFA No. 100330 of 2019 before this Court, which is still pending for consideration. These facts are deliberately suppressed by the plaintiff. Therefore, the suit itself is liable to be dismissed in limine as hit by Order II Rule 2 read with Section 10 of CPC. 8. Defendant Nos.1 to 5 have denied the contention of plaintiff that the suit properties are the joint family properties and she is having right, title and interest over the same. On the other hand, it is contended that during the life time of his father Mallappa @ Mallanagouda, an oral partition took place between the said Mallanagouda, the father of the plaintiff and defendant Nos.1, 6 and 10 during 1978 and accordingly, M.E.No.812 of Melligeri village was effected. Thereafter, the respective parties are enjoying their share. Thus, the plaintiff and defendants are not in joint status and the suit is not maintainable. 9. These defendants admitted the relationship between the parties. It is admitted that the propositor Mallanagounda died on 06.12.2012 and his wife Bhagirathi predeceased him during the year 2004. But denied the contention that the parties to lis are the members of undivided joint family and the plaintiff is having 1/4th share over the suit properties. It is stated that in view of the oral partition and the resultant mutation entry, defendant Nos.2 to 5 and 7 to 9 have separated themselves from defendant Nos.1 and 6. But denied the contention that the parties to lis are the members of undivided joint family and the plaintiff is having 1/4th share over the suit properties. It is stated that in view of the oral partition and the resultant mutation entry, defendant Nos.2 to 5 and 7 to 9 have separated themselves from defendant Nos.1 and 6. It is specifically denied that defendant Nos.1 to 6 and 10 who are class-I heirs of Mallanagouda are having 1/4th share each in the suit properties, except the suit schedule 'B' property bearing R.S. No.156/1 of Melligeri village. 10. These defendants have contended that the cause of action for the present suit and the cause of action for filing the counter claim in O.S.No.29 of 2018 are one and the same and therefore, the plaint is to be rejected under Order VII Rule 11a of CPC. 11. Defendant Nos.1 to 5 have filed additional written statement contending that the plaintiff has brought the suit in collusion with defendant Nos.6 to 10. Initially, defendant No.6 had filed a similar suit for partition and separate possession of the suit schedule properties in O.S.No.58 of 2017 before the Additional Senior Judge Court at Jamakhandi. The said suit came to be dismissed as per memo dated 05.09.2017. It is thereafter, the son of defendant No.6 Avinash who is defendant No.8 herein, filed O.S.No.29 of 2018 which also came to be dismissed on 17.06.2019. It is further contended that Regular First Appeal No.100330 of 2019 filed by defendant No.8 came to be dismissed as withdrawn on 10.07.2020, reserving liberty to the appellant to agitate her right in O.S.No.286 of 2019. In the meantime, there are several sales and purchases of the properties from time to time evidenced by mutation entries in that regard. It is contended that land bearing R.S. Nos.59, 55, 9/1, 58/1, 60/2, 156/1 have been divided as per M.E.No.812 of Melligeri village during 1978 and out of the same, R.S. No.59, 55 and 9/1 have been allotted to defendant No.1 whereas, R.S. No.58/1 and 60/2 were allotted to the share of defendant No.6. R.S. No.156/1 has been allotted to the share of Mallappa Somappa Nyamagouda in respect of which, the plaintiff and defendant Nos.6 and 10 have manipulated the records as contended in para 3. R.S. No.156/1 has been allotted to the share of Mallappa Somappa Nyamagouda in respect of which, the plaintiff and defendant Nos.6 and 10 have manipulated the records as contended in para 3. Defendant No.6 who got mutated his name in respect of R.S.No.9/1 of Melligeri village on the basis of oral partition, sold the same on 24.07.1992 under M.E.No.1346. These facts were also suppressed by the plaintiff. 12. It is contended by these defendants that the properties standing in their names are separate and self acquired properties acquired from the income derived from him as a medical practitioner from 1981 to 2000 at Gangavathi and thereafter at Jamakhandi and also from the properties fallen to his share. Defendant No.1 had availed huge loan from the bank for construction of hospital and house at Jamakhandi. He is an income tax assessee showing the income and expenditure in his returns since 1998. 13. It is further contended that the plaintiff has challenged M.E.No.812 of Melligeri village by filing RTS AP No.115 of 2019 before the Assistant Commissioner, Mudhol. The same came to be dismissed by order dated 29.01.2020. She preferred a revision in Revision Petition No.58 of 2020 before the Deputy Commissioner, Bagalkot, which came to be allowed by setting aside the mutation entry in M.E.No.812 of Melligeri village dated 04.07.1978. The said order passed by the Deputy Commissioner is challenged by defendant No.1 before this Court by filing a writ petition, which is still pending for consideration. This court had granted stay of the impugned order. 14. It is contended that the plaintiff in collusion of defendant Nos.6 to 10 is trying to cause damages to the crop and borewell by trespassing over the land bearing RS Nos.55 and 59, which was allotted under M.E.No.812 of Melligeri village along with R.S. Nos.60/3 and 60/1 of Melligeri village which was purchased by defendant No.1 from out of his own income. Therefore, defendant Nos.1 to 5 have also filed IA No.4 under Order XXXIX Rules 1 and 2 read with Section 151 of CPC seeking to restrain the plaintiff and defendant Nos.6 to 10 from causing damages and enjoyment of the suit properties bearing R.S.Nos.55, 59, 60/3 and 60/1 of Mellegeri village, till disposal of the suit by way of temporary injunction. 15. 15. They have also filed IA No.5 under Order XXVI Rule 9 read with Section 151 of CPC, praying to appoint Court Commissioner for ascertaining the damages caused to the crops grown in the above said survey numbers by defendant No.6. 16. Defendant Nos.1 to 5 have re-iterated their contention as taken in their written statement and additional written statement and contended that during the pendency of suit, the plaintiff preferred a revision petition before the Deputy Commissioner, Bagalkot in Revision Petition No.58 of 2020 challenging the mutation in respect of the suit property. The said revision petition came to be allowed by the Deputy Commissioner and the name of plaintiff got entered in respect of the property bearing R.S.Nos.55 and 59, but however, her name was not mutated in respect of R.S. No.9/1 of Melligeri village which was sold by defendant No.6 by manipulating the revenue records. The said order passed by the Deputy Commissioner in revision petition is challenged by defendant Nos.1 to 5 by filing the writ petition before this Court. Therefore, the plaintiff and other defendants were also bound by the order of this Court and they are bound to maintain status quo in respect of the properties mentioned in the application. It is stated that the plaintiff along with defendant Nos.6 to 10 are in a hurry to damage the standing crops grown in the above said survey numbers, which was in the possession of defendant Nos.1 to 5 before establishing their right over the properties before a Court of law and they damaged the crops by tress passing over the land by using tractor and also manual labours. 17. It is stated that right from 1978 till today, defendant Nos.1 to 5 are in peaceful possession and enjoyment of the properties held by them which was evident by revenue records. Defendant Nos.6 to 10 have caused damages to sugarcane crops by their illegal acts which resulted in huge loss. Therefore, defendant Nos.1 to 5 sought for temporary injunction as stated above. 18. The plaintiff filed objection to IA No.4 contending that IA No.4 is not maintainable either in law or on facts. It is stated that bald allegations were made by defendant Nos.1 to 5 without producing any iota of evidence. There is no prima facie case in favour of defendant Nos.1 to 5. There is no cause of action to seek temporary injunction. It is stated that bald allegations were made by defendant Nos.1 to 5 without producing any iota of evidence. There is no prima facie case in favour of defendant Nos.1 to 5. There is no cause of action to seek temporary injunction. It is contended that there is no independent cause of action to file IA No.4, therefore, the plaintiff prayed for dismissal of the application. Similarly, objection was also filed to IA No.5 filed under Order XXVI Rule 9 read with Sec 151 of CPC. Similar objections were filed by defendant Nos.6, 7, 8 and 10. 19. The Trial Court considered IA No.4 and IA No.5 filed by defendant Nos.1 to 5 and passed the common order allowing IA No.4 granting temporary injunction restraining plaintiff and defendant Nos.6 to 10 from destroying the standing crops and obstructing enjoyment of the above said suit property by defendant Nos.1 to 5 till disposal of the suit. However, IA No.5 came to be dismissed as the same is devoid of merits. 20. Being aggrieved by allowing of IA No.4 and granting temporary injunction in favour of defendant Nos.1 to 6, the plaintiff has preferred the appeal in Miscellaneous First Appeal No.100477 of 2021 and defendant Nos.6 and 10 have preferred Miscellaneous First Appeal No.100500 of 2021. 21. Heard Sri.Girish A Yadawad, learned counsel for the appellant and Sri.Ananth Mandgi, learned senior counsel for Sri.Ramesh V. Itagi, learned counsel for the respondent Nos.1 to 5 in Miscellaneous First Appeal No.100477 of 2021, Sriyuths.Jagadish Patil and B M Santosh, learned counsel for the appellants and Sri.Girish A Yadawad, learned counsel for respondent No.1, Sri.Anant Mandgi, learned senior counsel for Sri.Ramesh V. Itagi, learned counsel for respondent Nos.2 to 6, Sriyuths.K L Patil and S. S. Beturmath, learned counsel for respondent No.7 and Sri.M M Patil, learned counsel for respondent No.9 in Miscellaneous First Appeal No.100500 of 2021. 22. Learned counsel for the appellant in Miscellaneous First Appeal No.100477 of 2021 contended that there is bald allegation made by defendant Nos.1 to 5 regarding causing of damages. No materials are produced before the Court in support of such contention. No specific act of causing damages is stated by defendant Nos.1 to 5. There are no prima facie case in favour of defendant Nos.1 to 5. No materials are produced before the Court in support of such contention. No specific act of causing damages is stated by defendant Nos.1 to 5. There are no prima facie case in favour of defendant Nos.1 to 5. The balance of convenience is in favour of plaintiff, as she is one of the member of the joint family having 1/4th share over the suit schedule properties. She being the co-owner cannot be restrained by way of temporary injunction. Since all the joint family properties are in joint possession of the parties to the lis, no injunction could be granted against any member of the joint family. Learned counsel further submitted that the Trial Court without considering these facts and circumstances proceeded to allow IA No.4 and granted temporary injunction as prayed for. Therefore, the impugned order passed by the Trial Court is liable to be set aside. 23. Learned counsel placed reliance on the Full Court decision of this Court in the case of Smt.Shankunthalamma and Others VS Smt.Kanthamma and Others, ILR 2014 KAR 6025, to contend that defendant Nos.1 to 5 cannot seek an order of temporary injunction under Order XXXIX Rules 1 and 2 and that even under Section 151 of CPC, no relief could be granted when there is specific provision for grant of temporary injunction under Order XXXIX Rules 1 and 2 of CPC. Learned counsel further submitted that Order XXXIX Rule 1 (b) and (c) makes it clear that it is only the plaintiff who can seek temporary injunction and not the defendant in the suit. Defendant Nos.1 to 5 have not made out any grounds under Order XXXIX Rule 1(a) of CPC and therefore, the Trial Court should have dismissed the application. The Trial Court has rightly rejected IA No.5 filed under Order XXIX Rule 9 of CPC, but however, allowed IA No.4 without any basis. The Trial Court has given a specific finding that there is no allegation regarding causing of damages, but, however, allowed IA No.4 without any basis. The writ petition filed by defendant No.1 is still pending and the order passed by the Deputy Commissioner, Bagalkot is not set aside. Therefore, defendant Nos.1 to 5 cannot rely on the fact of filing the writ petition to seek injunction against the plaintiff. 24. Learned counsel also submitted that the oral partition set up by defendant Nos.1 to 5 cannot be recognized. Therefore, defendant Nos.1 to 5 cannot rely on the fact of filing the writ petition to seek injunction against the plaintiff. 24. Learned counsel also submitted that the oral partition set up by defendant Nos.1 to 5 cannot be recognized. M.E.No.812 of Melligeri village was effected behind the back of the plaintiff and defendant Nos.6 to 10. When defendant Nos.1 to 5 do not claim ouster, they cannot claim exclusive possession. Therefore, the impugned order is self contradictory and is liable to be set aside in the interest of justice. Accordingly, he prays for allowing the appeal and setting aside the impugned order in the interest of justice. 25. The learned counsel representing defendant Nos.6 and 10 who are appellants in Miscellaneous First Appeal No.100500 of 2021 supporting the contention of the plaintiff contended that admittedly, the properties are joint family properties. As per the explanation appended to Section 6(5) of the Hindu Succession Act, a property could be excluded from partition, only if there is registered partition deed and not otherwise. Plea of oral partition cannot be raised by the parties to the lis. 26. Learned counsel further submitted that M.E.No.812 recorded in favour of defendant Nos.1 to 5 is already set aside in the revision petition filed by the plaintiff before the Deputy Commissioner and under such circumstances, defendant Nos.1 to 5 cannot take advantage of the said mutation entry in their favour. No case of damage caused to the standing crop is made out by defendant Nos.1 to 5. Under such circumstances, the Trial Court was wrong in passing the impugned order. Hence, he prays for allowing the appeal in the interest of justice. 27. Per contra, learned counsel for defendant Nos.1 to 5/respondent Nos.1 to 5 in both the appeals opposing the contention taken by the plaintiff and defendant Nos.6 and 10 submitted that similar suit was filed seeking partition of the suit properties by defendant No.6 in O.S.No.29 of 2018. The said suit came to be dismissed under Order VII Rule 11 of CPC. But in the said plaint, defendant No.6 herein had specifically stated that there was a partition in respect of the suit property. He further contended that defendant No.6 has filed O.S.No.58 of 2017 in respect of the same suit properties, but the said suit came to be dismissed as settled out of court, vide order dated 05.09.2017. But in the said plaint, defendant No.6 herein had specifically stated that there was a partition in respect of the suit property. He further contended that defendant No.6 has filed O.S.No.58 of 2017 in respect of the same suit properties, but the said suit came to be dismissed as settled out of court, vide order dated 05.09.2017. Moreover, defendant No.6 had filed Regular First Appeal No.100330 of 2019 before this Court challenging the dismissal of his suit in O.S.No.29 of 2018 but subsequently the same was withdrawn as not pressed. Accordingly, the first appeal was dismissed, however, the counter claim filed in the said suit by the plaintiff is still pending. Under such circumstances, this second suit seeking similar relief is not maintainable in view of Order II Rule 2 of CPC. 28. Learned counsel placed reliance of the decision of Hon'ble Apex Court in P K Narayanan Raja Vs Ambika and another, (2018) 9 SCC 164 , and relied on para 6 in support of his contention, which reads as under: "6. If that be the position then, in our opinion, the property, which is the subject matter of this appeal, should also necessarily be subjected to its adjudication in OS No.46 of 1986 along with other properties. In any event, in our view, it would be just and proper that all properties belonging to or claimed to be belonging to the family or/and its members though denied by the parties against each other should be made the subject matter of one civil suit rather than two civil suits." 29. Learned counsel also submitted that IA No.4 was filed seeking to restrain the plaintiff and defendant Nos.6 to 10 from causing damages and enjoyment of the suit properties in respect of four items of the properties. Two properties were allotted to the share of defendant No.1 in the oral partition dated 04.07.1978. Accordingly, M.E.No.812 was effected. Two other properties were purchased by defendant No.1 in his individual right. As per M.E.No.812, defendant Nos.1 to 5 were in exclusive possession and enjoyment of the suit properties mentioned in the application since 1978. Only after filing of the suit, the said M.E.No.812 came to be challenged by the plaintiff. The Assistant Commissioner dismissed the claim of the plaintiff on 29.01.2020. However, a revision petition was filed before the Deputy Commissioner which came to be allowed. Only after filing of the suit, the said M.E.No.812 came to be challenged by the plaintiff. The Assistant Commissioner dismissed the claim of the plaintiff on 29.01.2020. However, a revision petition was filed before the Deputy Commissioner which came to be allowed. Thus, M.E.No.812 which came into effect during 1978 was set aside. The said order of the Deputy Commissioner is challenged by defendant Nos.1 to 5 before this Court by filing Writ Petition No.101145 of 2021 which is still pending and interim order of stay of the impugned order passed by the Deputy Commissioner setting aside M.E.No.812 is also passed. Therefore, the plaintiff and defendant Nos.6 to 10 cannot take advantage of the order passed by the Deputy Commissioner. 30. Learned counsel further submitted that IA No.4 was filed under Order XXXIX Rules 1 and 2 read with Section 151 of CPC. Specific allegations were made in the application accompanying the application regarding the act of the plaintiff and defendant Nos.6 to 10 in destroying the standing crops over the land in question by using tractor and manual labour. Even though objections were filed to the said application, the same are very bald. There is not even denial of the specific averment regarding destruction of the standing crops. The only ground urged by the parties is that defendant Nos.1 to 5 cannot maintain an application under Order XXXIX Rule 1 of CPC. 31. The learned counsel contended that as per Order XXXIX Rule 1 (a) of CPC, any party to the suit can file and maintain an application to prevent cause of damages to the suit property. Moreover, Section 151 of CPC is about saving of inherent powers of the Civil Court and therefore, the Civil Court will have an inherent powers to grant relief beyond the provisions of CPC, to meet the ends of justice. The Trial Court considering all these facts and circumstances and also the position of law, proceeded to allow IA No.4 and granted temporary injunction. When defendant Nos.1 to 5 were in peaceful possession and enjoyment of the land in question to the exclusion of the plaintiff and other defendants since from 1978, the status quo is to be maintained till disposal of the suit. 32. When defendant Nos.1 to 5 were in peaceful possession and enjoyment of the land in question to the exclusion of the plaintiff and other defendants since from 1978, the status quo is to be maintained till disposal of the suit. 32. The learned counsel further submitted that even though the learned counsel for the plaintiff placed reliance on the decision of this Court in Shankunthalamma (supra), the position of law is made clear in the said decision in paras 30 and 33, (i) and (iii). Thus he also placed reliance on the same. 33. Learned counsel also placed reliance on the decision of this Court in Kamalamma and Others Vs A Vivekananda : MANU/KA/5420/2018, whereunder, the co-ordinate Bench of this Court referred to the Full Bench decision in Shankunthalamma (supra), to contend that interim injunction could be granted under Section 151 of CPC. 34. Learned counsel further submitted that the Trial Court after taking into consideration all these facts and circumstances has passed a reasoned order. The Trial Court never gave a finding that no damages were caused by the plaintiff and defendant Nos.6 to 10. But on the other hand, it is observed that particulars of damages are not given and defendant Nos.1 to 5 are relying on the photographs to prove such damages and therefore it was held that the Court Commissioner cannot be appointed for ascertaining the damages caused to the crops. There is no illegality or perversity in the impugned order. Thus, the learned counsel for defendant Nos.1 to 5 seeks for dismissal of both the appeals as devoid of merits. 35. In view of these rival contentions urged by learned counsel for parties to the lis, the point that would arise for my consideration is: “Whether the appellants have made out a case to interfere with the impugned order dated 17.04.2021 passed by the Trial Court in allowing IA No.4 filed under Order XXXIX Rules 1 and 2 read with Section 151 of CPC?" My answer to the above point is in ‘Negative' for the following: REASONS 36. The relationship between the parties in the suit is not disputed. Admittedly, the plaintiff is one of the daughter of the propositor. Defendant No.1 is the brother of the plaintiff. The relationship between the parties in the suit is not disputed. Admittedly, the plaintiff is one of the daughter of the propositor. Defendant No.1 is the brother of the plaintiff. It is the specific contention of the plaintiff that the suit schedule properties are the joint family properties and she is entitled for 1/4th share in the same. Defendant Nos.1 to 5 are the contesting defendants, denied that the suit properties are the joint family properties and that the plaintiff is having any share over the same. A specific defence is taken that during the lifetime of propositors Mallanna @ Mallanagouda, an oral partition had taken place between the said Mallanagouda and defendant Nos.1, 6 and 10 during 1978. It is also stated by these defendants that RS Nos.59, 55 and 9/1 of Melligeri village have been allotted to the share of defendant No.1, whereas RS Nos.58/1 and 60/2 were allotted to defendant No.6. RS No.156/1 was allotted to the share of Mallappa @ Mallanagouda, but it is alleged that the plaintiff and defendant Nos.6 and 10 have manipulated the records as contended in the written statement. It is also stated that defendant No.6 got mutated his name in respect of RS No. 9/1 of Melligeri village on the basis of oral partition and also sold in favour of third party on 24.07.1992. Defendant No.1 also contended that RS Nos.60/1 and 60/3 of Melligeri village was purchased by him from out of his own income and not from the joint family nucleus, as contended by the plaintiff. Therefore, these properties were mutated in his name and M.E. No.812 of Melligeri village about 40 years back i.e., 04.07.1978. Thus, it is the contention of defendant Nos.1 to 5 that the plaintiff and other defendants are trying to cause damages to the crop that was grown in these lands, which exclusively belong to them. Therefore, IA No.4 was filed seeking temporary injunction restraining the plaintiff and other defendants from causing damages to the crop or the property till disposal of the suit. The said application came to be allowed by the Trial Court under the impugned order. 37. Both the parties to the appeals placed reliance on the decision of this Court rendered by the Full Bench in Smt.Shakuntalamma (supra). The said application came to be allowed by the Trial Court under the impugned order. 37. Both the parties to the appeals placed reliance on the decision of this Court rendered by the Full Bench in Smt.Shakuntalamma (supra). The Full bench of this Court considered the reference, "whether the defendant in a suit for declaration and injunction can maintain an application for injunction under Order XXXIX Rule 1(c) of CPC, 1908?" It referred to various other judgments and by over ruling the dictum laid down by this Court in Sugunda Bai (supra), held in para 33 as under: "30. At the outset, the provisions of Order XXXIX Rule 1 and 2 CPC are not interpreted in SUGANDA BAI's case. Secondly, Order XXXIX Rule 1(c) was not in the statute book as on the date of that judgment and it came to be incorporated w.e.f. 01.02.1977 by Act No. 104/1976. Thirdly, this Court while deciding SUGANDA BAI's case relied on the judgments of the English Court, which were based on common law whereas, in the case on hand we are called upon to interpret a statutory provision contained in the Code of Civil Procedure, a codified law. Nowhere in Order XXXIX Rule 1 and 2 of CPC are the words “cause of action” referred to. Therefore, it would be contrary to the statutory provision contained in the Code of Civil Procedure to hold that the defendant can maintain an application for injunction on the same cause of action, on which the plaintiff has come to the Court. 33. The correct legal position as is clear from the statutory provision is as under: (i) Both the plaintiff and the defendant can maintain an application under Order XXXIX Rule 1(a) of the Code for the reliefs set out in the said provision; (ii) …… (iii) In cases which do not fall under Order XXXIX Rule 1 of the Code, the Court has the inherent jurisdiction to grant the relief of injunction in its discretion, if it is satisfied that such an order is necessary to meet the ends of justice or to prevent abuse of process of the court and nothing in this Code shall limit or otherwise affect such inherent power of the court". 38. 38. Thus, the plain reading of the above would make the position of law clear that even a defendant in a suit can claim the relief of temporary injunction under Order XXXIX Rule 1(a) of the Code as set out in the said provision. Even if the case do not fall under Order XXXIX Rule 1(a) of CPC, the Court under its inherent jurisdiction can proceed to grant the relief, if it is satisfied that such an order is necessary to meet the ends of justice, or to prevent the abuse of process of Court. Therefore, the contention of the learned counsel for the contesting parties that the Trial Court could not have granted the relief in favour of defendant Nos.1 to 5 under any circumstances, cannot be accepted. 39. It is the specific contention of defendant Nos.1 to 5 that there was an oral partition between the father and sons during 1978 in respect of the subject property mentioned in IA No.4 before the Trial Court. In pursuance of such oral partition, the properties were mutated in the names of Mallana @ Mallanagouda, defendant Nos.1 and 6. Defendant Nos.1 to 5 have produced M.E. No.812 of Melligeri village, which disclose that during the lifetime of Mallanna @ Mallanagouda, the partition was effected, whereunder the land bearing RS Nos.59, 55 and 9/1 were allotted to the share of defendant No.1 and the land bearing RS Nos.58/1 and 60/2 were allotted to the share of defendant No. 6. The land bearing RS No.156/1 was retained by the father Mallanagouda. Defendant Nos.1 to 5 are also relying on RTC extracts since from the year 1974-75 in respect of these properties. The defendants have also produced RTC 60/1, 60/1B, which prima facie disclose that those properties were purchased by defendant No.1. All these documents prima facie supports the contention of defendant Nos.1 to 5 at present. Even though the plaintiff and defendant Nos.6 to 10 are contesting the matter on the ground that the properties are joint family properties and all the parties are in joint possession of the same, the same is to be established during trial. If in the meantime, the exclusive possession of the subject properties as claimed by defendant Nos.1 to 5 is disturbed and there is act of damage and destruction, the same cannot be compensated in terms of money. If in the meantime, the exclusive possession of the subject properties as claimed by defendant Nos.1 to 5 is disturbed and there is act of damage and destruction, the same cannot be compensated in terms of money. On the other hand, if the plaintiff is to succeed after full fledged trial, she will be entitled for appropriate relief for ousting her from the joint possession of the properties in question. 40. It is the specific contention of defendant Nos.1 to 5 that initially defendant No.6 has filed similar suit for partition and separate possession of the suit properties. The plaintiff had in fact filed counter claim in OS No.29 of 2018. Even though OS No.29 of 2018 came to be dismissed under Order II Rule 2 of CPC, the counter claim is still pending. This fact is never disputed by the plaintiff. Whether the suit of the plaintiff is maintainable when the counter claim filed by her in OS No.29 of 2018 is still pending, is to be considered by the Trial Court. A finding is to be recorded by the Trial Court as to whether the plaintiff is to be declared as the co-parcener having 1/4th share in the suit properties. In the meantime, the contention of defendant Nos.1 to 5 is prima facie supported by mutation entries and record of rights which cannot be ignored at this stage, to reject IA No.4 filed by them. 41. Admittedly, M.E. No.812 of Melligeri village was in force since 1978 and it came to be challenged by the plaintiff by filing RTSAG No.115 of 2019 before the Assistant Commissioner, Jamakhandi which also came to be dismissed holding that a suit for partition is already filed and the parties can agitate their rights before the Civil Court. The said order passed by the Assistant Commissioner was challenged before the Deputy Commissioner, Bagalkot in Revision Petition No.58 of 2020, which came to be allowed and M.E.No.812 came to be set aside as per MR No.T102 of 2020-21. All these developments were only after filing of the suit before the Trial Court. The said order passed by the Assistant Commissioner was challenged before the Deputy Commissioner, Bagalkot in Revision Petition No.58 of 2020, which came to be allowed and M.E.No.812 came to be set aside as per MR No.T102 of 2020-21. All these developments were only after filing of the suit before the Trial Court. Under such circumstances, the contention taken by defendant Nos.1 to 5 that only after the order passed by the Deputy Commissioner, Bagalkot setting aside M.E. No.812 of Melligeri village, the plaintiff and other defendants started interfering with peaceful possession and enjoyment of subject properties, they trespassed into the land and caused damages assumes importance. These facts and circumstances gives rise to a reasonable apprehension of damage/destruction of the property/crop as alleged by defendant Nos.1 to 5. Under such circumstances, I am of opinion that defendant Nos.1 to 5 have made out a prima facie case. Balance of convenience is also in their favour. If the relief sought is not granted, defendant Nos.1 to 5 will suffer great loss and hardship which cannot be compensated in terms of money, but on the other hand, if the plaintiff would succeed in the suit for partition and separate possession, she can seek damages or mense profits to make good the loss. 42. Even though defendant Nos.1 to 5 have made specific averments in the affidavit accompanying IA No.4 and the plaintiff filed objections to the said application, there is absolutely no specific denial of such averments, except contending that defendant Nos.1 to 5 have no independent cause of action to seek temporary injunction and there is no prima facie case for grant of relief. The contention taken by the plaintiff and other contesting defendants with regard to the requirement of independent cause of action to seek temporary injunction by the defendant and that no such temporary injunction could be granted either under Order XXXIX Rule 1(a) or under Section 151 of CPC, is to be negatived in view of settled proposition of law as laid down by this Court in Shakuntalamma (supra). 43. I have gone through the impugned order passed by the Trial Court. It has taken into consideration all these facts and circumstances and has arrived at a right conclusion. I do not find any reason to interfere with the same. 44. 43. I have gone through the impugned order passed by the Trial Court. It has taken into consideration all these facts and circumstances and has arrived at a right conclusion. I do not find any reason to interfere with the same. 44. In view of the discussions held above, I am of the opinion that both the appeals are liable to be dismissed as devoid of merits. Hence, I answer the above point in Negative. The appeals are dismissed. The parties are directed to bear their own costs.