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2023 DIGILAW 1197 (KAR)

Rajesh Kumar Naidu Nallapati v. M Prabhavathi

2023-10-10

H.T.NARENDRA PRASAD

body2023
JUDGMENT H.T. Narendra Prasad, J. These appeals are filed under Order 43 Rule 1(r) of CPC by the defendants challenging the order dated 05.08.2023 passed by the VII Additional Senior Civil Judge, Bangalore Rural District, Bengaluru in O.S.Nos. 482/2023, 412/2023, 473/2023, 475/2023, 477/2023, 478/2023, 411/2023, 416/2023, 472/2023, 481/2023, 413/2023, 484/2023, and 417/2023, respectively, whereby IA Nos. 1 and 2 filed by the plaintiff to restrain defendants/appellants, from putting up construction and not to create any third party interest, are allowed. 2. For the sake of convenience, the parties are referred to as per their rankings before the trial court. 3. The brief facts of the case are that the plaintiff filed a suit for a declaration to declare that the sale deed executed in favour of the defendants/appellants, is illegal, void and not binding on the plaintiff. Along with the plaint, she has also filed IA Nos. 1 and 2 under Order 39 Rules 1 and 2 of CPC seeking temporary injunction against the defendants/appellants restraining from creating any third party interest and also restraining to put up construction over the suit schedule property. 4. After service of summons, defendants appeared and filed written statements. After hearing the parties, the trial court allowed IA Nos. 1 and 2. Being aggrieved, the defendants/appellants in the aforesaid suits have filed these appeals. 5. Sri Sharath S.Gowda, the learned Counsel appearing for the defendants/appellants, has raised the following contentions: (i) Firstly, they are the bonafide purchasers of the suit schedule properties. As per the partnership deed, the partners who are eligible to execute the sale deed have signed the sale deed and the sale deed has been executed in favour of defendants/appellants and the possession has been handed-over on the same day and they are in possession of the suit schedule properties. Therefore, they have all the rights to put up construction and alienate the properties. (ii) Secondly, first defendant formed a layout in four acres of land and 105 sites have been formed. The dispute in these cases relates to 25 sites. As per the partnership deed, the plaintiff is entitled for 1/4th share in the sites which is formed by the partnership firm. Even if the plaintiff succeeds, she may get 1/4th share out of the remaining sites which are yet to be alienated. The trial court, without considering this aspect of the matter, has erred in allowing the applications. As per the partnership deed, the plaintiff is entitled for 1/4th share in the sites which is formed by the partnership firm. Even if the plaintiff succeeds, she may get 1/4th share out of the remaining sites which are yet to be alienated. The trial court, without considering this aspect of the matter, has erred in allowing the applications. In support of his contentions, he has relied on the judgment of the Apex Court in the cases of Dalpat Kumar And Another vs. Prahlad Singh And Others reported in (1992) 1 SCC 719 and Best Sellers Retain (India) Private Limited vs. Aditya Birla Nuvo Limited And Others reported in (2012) 6 SCC 792 . Hence, he prays for allowing the appeals. 6. Sri Y.R.Sadashiva Reddy, the learned Senior Counsel appearing for the plaintiff/caveator/ respondent No.1 has raised the following contentions: (i) Firstly, the plaintiff, along with other four members has formed the partnership firm and on 18.03.2021 the firm has been reconstituted as one of the partners has been retired. As per Clause 12 of the reconstitution deed, the plaintiff also has a right to execute the sale deed. The plaintiff's signature is also required to alienate any property. (ii) Secondly, defendant Nos. 2 to 4 are creating documents to show that the plaintiff has no right to sign the documents for alienation. Therefore, the plaintiff filed suits for cancellation of the sale deed and that the alienation has been made on the basis of the created documents, the defendants/appellants have purchased the suit schedule properties on the basis of the created documents and they have no right or title over the suit schedule properties. Therefore, the trial court has rightly allowed the applications filed by the plaintiff. Hence, he sought for dismissal of the appeals. 6. Heard the learned counsel for the parties and perused the appeal papers. 7. It is not in dispute that the plaintiff is also one of the partners of the firm. It is also not in dispute that the plaintiff and defendant Nos. 2 to 4 have reconstituted the partnership deed on 18.03.2021. The only dispute is that subsequently, defendant Nos. 2 to 4 have created one more reconstitution of partnership deed and executed the sale deed, excluding the plaintiff. This is an issue which is pending before the trial court for adjudication. 8. 2 to 4 have reconstituted the partnership deed on 18.03.2021. The only dispute is that subsequently, defendant Nos. 2 to 4 have created one more reconstitution of partnership deed and executed the sale deed, excluding the plaintiff. This is an issue which is pending before the trial court for adjudication. 8. It is also not in dispute that the defendants/appellants have purchased the suit schedule properties by a registered sale deed and they are in the possession of the suit schedule properties. Under these circumstances, in the interest of justice, I am of the opinion that the order passed by the trial court can be modified. 8. Accordingly, I pass the following order: (i) The appeals are allowed. (ii) The orders passed by the trial court dated 05.08.2023 passed by the VII Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru in O.S.Nos. 482/2023, 412/2023, 473/2023, 475/2023, 477/2023, 478/2023, 411/2023, 416/2023, 472/2023, 481/2023, 413/2023, 484/2023, and 417/2023, respectively, are modified as 'the defendants/appellants are permitted to put up construction on the suit schedule properties; they are restrained from creating any third party interest and in case, if they fail in the suit, they shall not claim any equity'. (iii) The trial court is directed to dispose of the suit, without being influenced by the observations made in the impugned order. (iv) All pending applications, stand disposed of.