- 1 - NC: 2025:KHC:9870 MFA No. 2289 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE K.NATARAJAN MISCELLANEOUS FIRST APPEAL NO.2289 OF 2024 (CPC) BETWEEN: SHRI. LOKESH T L S/O SHRI. LAKSHMAPPA, AGED ABOUT 49 YEARS, RESIDING AT 'SKANDA NIVASA' NO.2743, 'E' BLOCK, 1ST FLOOR, OPP. TO ROTTI MANE, SAHAKARANAGAR, BENGALURU - 560 092. ...APPELLANT (BY SRI. SURESH S. LOKRE, SENIOR COUNSEL FOR SRI. SHRAVAN S. LOKRE, ADVOCATE) AND: 1 . SMT. B. PADMAVATHI D/O LATE SHRI. K. V. BYRE GOWDA, W/O SHRI M. VENKATESH, AGED ABOUT 67 YEARS, RESIDING AT NO.432, 8TH MAIN, 1ST CROSS, SWIMMING POOL EXTENSION, SARASWATHIPURAM, MYSORE - 570 009. 2 . SHRI B. RAVI GOWDA S/O LATE SHRI K. V. BYRE GOWDA, AGED ABOUT 63 YEARS, RESIDING AT NO.326, 15TH CROSS, 2ND FLOOR, SADASHIVANAGAR, UPPER PALACE ORCHARDS Digitally signed by NIJAMUDDIN JAMKHANDI Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:9870 MFA No. 2289 of 2024 OPP. SADASHIVANAGAR CLUB, BENGALURU - 560 080. 3 . SMT. YASHODAMMA W/O LATE SHRI K. V. BYRE GOWDA, AGED ABOUT 93 YEARS, RESIDING AT NO.326, 15TH CROSS, 2ND FLOOR, SADASHIVANAGAR, UPPER PALACE ORCHARDS, OPP. SADASHIVANAGAR CLUB, BENGALURU - 560 080. 4 . SMT. BHARATHI DASE GOWDA D/O LATE K. V. BYRE GOWDA, W/O LATE SRI DASE GOWDA, AGED ABOUT 75 YEARS, RESIDING AT NO.201, ALLAWAH ROAD, CHUWAR QLD 4306, AUSTRALIA. 5 . M/S CITRUS VENTURES PVT. LTD. A PRIVATE LIMITED CO. DULY REGISTERED UNDER THE COMPANIES ACT, HAVING ITS REGISTERED OFFICE AT NO.106/10-11-12, AMRUTHAHALLI, BYTARAYANAPURA, BENGALURU - 560 092. REPRESENTED BY ITS MANAGING DIRECTOR SHRI BHARATH RAO. …RESPONDENTS (BY SRI. PARASMAL B @ PARAS JAIN, ADVOCATE FOR R1; DR. P.M.NARAYANASWAMY, ADVOCATE FOR R3; SRI. G.S. PRASANNA KUMAR, ADVOCATE AND SMT. JYOTHI S., ADVOCATE FOR R5; VIDE ORDER DATED:07/11/2024, NOTICE TO R4 IS DISPENSED WITH) - 3 - NC: 2025:KHC:9870 MFA No. 2289 of 2024 THIS MFA IS FILED U/O 43 RULE 1(r) R/W SECTION 151 OF CPC, AGAINST THE ORDER DATED:20.02.2024 PASSED ON I.A.NO.1 IN OS.NO.3072/2021 ON THE FILE OF THE IX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CCH-5, ALLOWING THE APPLICATION FILED UNDER ORDER 39 RULE 1 AND 2 R/W SECTION 151 OF CPC. THIS MISCELLANEOUS FIRST APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 28.01.2025 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR JUSTICE K.NATARAJAN CAV JUDGMENT This appeal filed by the appellant /defendant No.4 under Order XLIII Rule 1 of CPC., for setting aside the order passed by the Addl. City Civil and Session Judge, Bangalore, in OS.No.3072/2021 dated 20.02.2024 for having granted injunction in favour of the plaintiff under Order 39 Rule 1 and 2 of CPC. 2. Heard the arguments of both the counsels. RESERVED FOR ORDERS ON: 28.01.2025 PRONOUNCED ON 07.03.2025 - 4 - NC: 2025:KHC:9870 MFA No. 2289 of 2024 3. The appellant was the defendant No.4, the respondent No.1 was the plaintiff, the respondent Nos.2 to 4 were the defendant Nos.1 to 3 before the Trial Court. 4. The ranks of the parties before the Trial Court are retained for the sake convenience. 5. The case of the plaintiff before the trial court is that the plaintiff has filed the suit for partition of the suit schedule properties by metes and bounds and to declare the plaintiff is entitle to 25% of share i.e., 1/4th share in the owners 41% of the development carried out in item No.1 and 1/4th shares in various items of the schedule properties and also declare the release deed, partition are all not binding on the plaintiff and also bifurcation of the share in the family properties and to deliver the vacant possession of the property or share of the sale price or compensation amount or TDR, wherever applicable and various relief in prayer (A) to (T). 6. Along with the suit the plaintiff also filed IA under Order XXXIX Rule 1 and 2 of CPC., for seeking injunction - 5 - NC: 2025:KHC:9870 MFA No. 2289 of 2024 against the defendants. The defendants also filed written statement by denying all the averments and also contended that there was already partition between the family. The appellant already relinquished the right in favour of other family members by receiving other properties as well as cash, by suppressing the same the suit came to be filed and the plaintiff is aware that the suit schedule property is not in possession and the property also acquired by the authorities and she has claimed the compensation of her share etc., And prayed for dismissing the application. After considering the arguments, the Trial Court passed the impugned order by granting injunction against the defendants restraining from creating, alienating or encumbering or transacting with any third parties with respect of the suit schedule properties. Being aggrieved by the same defendant No.4 is before this Court. 7. The senior counsel appearing for the appellant/defendant No.4 has vehementally contended - 6 - NC: 2025:KHC:9870 MFA No. 2289 of 2024 that the order of the Trial Court is erroneous, it was not considered the case on merits, especially the plaintiff herself not sought for challenging any documents like registered agreement of sale dated 31.08.2020 and even to challenge the said transaction, the appellant would put to great hardship and inconvenience, as the blanket injunction order passed by the Trial Court without prima facie case made out by the plaintiff. The plaintiff also not challenged the release deed executed by her or she also not challenged the gift deed executed in her favour. The plaintiff is not entitled for any relief claimed under the suit. The clever draft is made in the plaint before the Trial Court and the plaintiff approached this court after lapse of several decades for granting injunction and also declaration. There is no prayer for permanent injunction restraining the defendants from alienating the suit schedule properties. 8. Learned Senior counsel also contended that the prayer 'O' is very clearly reveals that she has claimed only - 7 - NC: 2025:KHC:9870 MFA No. 2289 of 2024 share in the compensation amount and no prayer for granting any permanent injunction restraining the defendants from interfering with the suit schedule properties. It is settled possession of law interim prayer which is contrary to the prayer made in the plaint and contrary prayer in IA cannot be granted. Therefore, without considering the facts of the case, the Trial Court passed the order which is not sustainable. Hence, prayed for setting aside the same. 9. Per contra learned counsel for the respondent No.1/plaintiff objected the appeal contending that the plaintiff filed the suit for partition, where the defendants are relinquishing the right but the two documents are registered at the same time, where gift deed and relinquishment deed executed at the same time, a fraud committed on the plaintiff and obtained relinquishment right by the family members of the plaintiff. Therefore, she has filed a suit. Though the appellant/defendant No.4 claiming the decree obtained in OS.No.1532/2014, which - 8 - NC: 2025:KHC:9870 MFA No. 2289 of 2024 was attained finality in the Hon'ble Supreme Court, where the plaintiff was not a party. The property is ancestral property of the plaintiff, she is having right over the property. The defendant No.4 already entered into an agreement, the property likely to be sold, if the share of the plaintiff is sold, it cannot be compensated in any manner. The brother of the plaintiff sold the property belongs to her share. And further contended that the plaintiff also filed suit seeking amendment of the plaint as well as the prayer and implead the defendant Nos.6 and 7. Therefore, considering the same the Trial Court rightly granted injunction. Hence, prayed for dismissing the appeal. 10. Learned senior counsel appearing for the defendant No.4/appellant has seriously contended that there is no prima facie case made out by the plaintiff for granting equally and efficacious remedy in favour of the plaintiff. The sale deed of the defendants not challenged by the plaintiff. If the plaintiff claimed the fraud it has to - 9 - NC: 2025:KHC:9870 MFA No. 2289 of 2024 be prove, until proving the case, the plaintiff is not entitle for any relief. The defendant No.1 already sold the property to the defendant No.4. The decree was obtained in OS.No.1532/2016, which was challenged before the High Court of Karnataka, which was dismissed, they also filed SLP which was also came to be dismissed. The sale deed was executed by the defendant Nos.1, 2 and children in favour of the defendant No.4 on 09.06.2022 for 2 acres 30 guntas. The plaintiff claiming the title on the ground of fraud. There is no specific prayer by the plaintiff in the suit as well as IA. Therefore, he has contended that the prayer of the plaintiff cannot be considered, as she is claiming only compensation of the property or sale consideration. 11. By reply the learned counsel for the respondent No.1/plaintiff also contended that the property value is very much more but the sale deed executed for lesser price, as agricultural land which is not correct, the land is converted land. Hence, prayed for dismissing the appeal. - 10 - NC: 2025:KHC:9870 MFA No. 2289 of 2024 12. Having heard the arguments and perused the records, now the following points arises for my consideration are; 1) Whether the plaintiff made out prima facie case in her favour for granting injunction? 2) Whether the balance of convenience lies in favour of plaintiff? 3) Whether the plaintiff will be put to hardship if injunction is not granted? 4) Whether the order of the Trial Court call for the interference? 13. On perusal of the documents and the relief claimed by the plaintiff in the suit which reveals it is not a simple suit for partition and separate possession of 1/4th share in the suit schedule property but the prayer of the plaintiff is lengthy prayer from (A) to (T) i.e. 20 prayers, among them the prayer 'N' containing -6 sub prayers for declaration of various documents are not binding, the sale - 11 - NC: 2025:KHC:9870 MFA No. 2289 of 2024 deeds are not binding, and she is entitle for the share in almost 11 items of the properties. Out of which the dispute between the plaintiff and the defendant No.4 is in respect of item No.6 i.e., land in Sy.No.105/1 measuring 2 acres and adjacent Sy.No.105/2 measuring 1 acre 33 guntas situated at Jakkuar Village, Yelahanka Hobli. The remaining lands there is no dispute between the defendant No.4 and the plaintiff. The contention of the senior counsel for the appellant is that the plaintiff herself executed a release deed in favour of brother -defendant No.1 and the release deed was executed in the year 2007 but the suit filed in the year 2021. Meanwhile in 2017 she has obtained the gift from the mother and brother and she has taken apartments and therefore there is no prima facie case in favour of the plaintiff for seeking any injunction. Hence, prayed for allowing the appeal. 14. The respondent counsel also produced the document where he has submitted the release deed dated 01.02.2017 and gift deed dated 01.02.2017 are registered - 12 - NC: 2025:KHC:9870 MFA No. 2289 of 2024 on the same day. The plaintiff obtained 3 apartments carved out of the land in Sy.No.66/2 and 66/7, where she has already given a release deed in respect of the same property. In one hand she has given the right over the property and she taken back the 3 bed room houses in the same apartment put up on the said land in question. The earlier release deed made by the Yashodamma -the mother of the plaintiff in the year 2007 itself, who is also defendant No.2 in the suit. 15. Learned senior counsel for the appellant brought to the notice of this court that the prayer of the plaintiff itself is complicated one, she has claimed various relief for 25% of share but she also claimed the bifurcation of the share and alternatively she claimed that she is entitled for the sale price of the suit schedule property if it is already sold by the defendant or compensation amount if the property was acquired by the authority or TDR which ever is applicable. The very prayer 'O' of the suit clearly reveals that the plaintiff is having knowledge about the release - 13 - NC: 2025:KHC:9870 MFA No. 2289 of 2024 deed and receiving the gift deed and after the release deed in favour of the defendant No.1, he has sold the property and therefore she is entitle for the share out of the sale consideration or compensation if the property is already acquired by the authority. It is averred in the plaint some of the property was under acquisition. Therefore, it is clear case of the plaintiff that the plaintiff claims 25% of share i.e., 1/4th share in all the schedule properties, which is no way concerned about the same in this appeal except land in Sy.No.105/1 measuring 2 acres and adjacent Sy.No.105/2 measuring 1 acre 33 guntas situated at Jakkuar Village, Yelahanka Hobli. Therefore if the property already sold by the defendant No.1 in favour of defendant No.4 she is entitle for the sale consideration of her share if able to succeed in the suit. The plaintiff yet to prove her case as the prayer in the plaint is 20 prayers plus 6 sub prayers in prayer 'N'. Such being the case the matter required detail consideration by the Trial Court. The plaintiff required to prove her case in the court, till then she is not entitle for the relief of injunction either by way - 14 - NC: 2025:KHC:9870 MFA No. 2289 of 2024 of not to alienate or create any third party interest over the suit schedule properties. 16. Though the learned counsel for the respondent has contended that the release deed got obtained by the brother of the plaintiff by fraud etc., it has to be proved by the plaintiff in the trial after examining the witnesses and cross examining the witnesses. In respect of item No.6 the matter already approached the civil court, where the some of the agreement has been cancelled by the civil court, the parties approached the High Court of Karnataka and went up to Hon'ble Supreme Court, though the plaintiff is not a party but the subject matter was already went up to Hon'ble Supreme Court and the sale deed of the defendant No.4 is not sought for cancellation by the plaintiff in the suit. Though the counsel submits after issuance of summons the sale deed was executed and lis pendency sale. Therefore at this stage when the property already sold by the defendant No.1 in favour of defendant No.4, now the question of restraining or alienating the suit - 15 - NC: 2025:KHC:9870 MFA No. 2289 of 2024 schedule property especially 105/1 and 105/2 not arises for granting any injunction in favour of the plaintiff. Of course she is entitle for the share in the sale consideration from the brother i.e., defendant No.1 and her mother defendant No.2 after she succeeds in the suit. 17. That apart it is also seen from the records that the defendant No.5 already joined with the defendant No.1, there was a JDA, the property were developed, apartments were constructed, out of the said apartments the plaintiff obtained three bed room flats, such being the case, the said property cannot be ordered to not to alienate or create third party interest that will cause irreparable loss to the defendant rather than the plaintiff. If at all the value of the property is more or less it has to be establish by the court of law by full pledged trial. Such being the case, the plaintiff is not able to show prima facie in her favour and balance of convenience in her favour and if the injunction is not granted it will not cause any irreparable loss to her as her claim itself alternative claim - 16 - NC: 2025:KHC:9870 MFA No. 2289 of 2024 for getting compensation, as share in the sale consideration or TDR etc., 18. The learned counsel for the respondent has contended that the High court should not venture into the order of the trial court for setting aside but it is well settled possession of law, when the order of the trial court is perverse or capricious, the High Court always interfere and set aside the same. Such being the case, the contention of the respondent counsel cannot be acceptable, on the other hand the order of the trial court is perverse, and not considered the plaint averments, it is lengthy plaint averments, more than 25 relief claimed, which are all required to adjudicate by the trial court, till then the question of granting any injunction as against item No.6 of the suit schedule property does not arises. Accordingly, the order of the trial court requires to interfere by this court to the extent of Sy.Nos.105/1 and 105/2 belongs to the appellant. - 17 - NC: 2025:KHC:9870 MFA No. 2289 of 2024 Accordingly, the appeal is allowed. Order of the trial court in respect of item No.6 i.e., 'f' in Sy.No.105/1 measuring 2 acres and adjacent Sy.No.105/2 measuring 1 acre 33 guntas, situated at Jakkuar Village, Yelahanka-2 Hobli, is set aside. The order of the trial court is modified accordingly. Sd/- (K.NATARAJAN) JUDGE SRK List No.: 19 Sl No.: 2 CT:SK