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2025 DAILYLAW 71829 (KAR)

SRI M KRISHNAMURTHY v. SRI M RAMACHANDRA

MFA/4200/2025 · 2025-07-21

Ramachandra D Huddar

body2025

Judgment text

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- 1 - HC-KAR NC: 2025:KHC:27196 MFA No. 4200 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR MISCELLANEOUS FIRST APPEAL NO. 4200 OF 2025 (CPC) BETWEEN: 1. SRI. M. KRISHNAMURTHY S/O LATE MUNISWAMY AGED ABOUT 53 YEARS RESIDING AT NO.135 LAKSHMINILAYA ASHWATHKATTE ROAD AMRUTHAHALLI SAHAKARNAGAR POST BENGALURU-560 092 2. SRI. M. NAGARAJA S/O LATE MUNISWAMI AGED ABOUT 57 YEARS RESIDING AT NO.135 LAKSHMINILAYA ASHWATHKATTE ROAD AMRUTHAHALLI SAHAKARNAGAR POST BENGALURU-560 092 …APPELLANTS (BY SRI. KESHAVA K.V, ADVOCATE) AND: 1. SRI. M. RAMACHANDRA S/O LATE MUNISWAMY AGED ABOUT 59 YEARS RESIDING AT NO.135 ASHWATHKATTE ROAD Digitally signed by ANJALI M Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:27196 MFA No. 4200 of 2025 AMRUTHAHALLI SAHAKARNAGAR POST BENGALURU-560 092 2. SRI. M. MURALIDHAR S/O LATE MUNISWAMY AGED ABOUT 55 YEARS RESIDING AT NO.135 ASHWATHKATTE ROAD AMRUTHAHALLI SAHAKARNAGAR POST BENGALURU-560 092 3. SMT. RATHNAMMA W/O LATE M. BEERAPPA AGED ABOUT 72 YEARS RESIDING AT NO.158 MUNIGURAPPA LAYOUT AMRUTHAHALLI, SAHAKARNAGAR POST BENGALURU- 560 092 4. SRI. RAMAMURTHY S/O LATE M. BEERAPPA AGED ABOUT 54 YEARS RESIDING AT SHIVAPURA VILLAGE KASABA HOBLI, DODDABALLAPURA TALUK BENGALURU RURAL DISTRICT-562 163 5. SRI. SHANKAR B S/O LATE M. BEERAPPA AGED ABOUT 58 YEARS RESIDING AT NO.133, 1ST MAIN ROAD SHANTHI LAYOUT, RAMURTHY NAGAR BANGALORE-560 016 6. SRI. JAYARAM B S/O LATE M. BEERAPPA AGED ABOUT 52 YEARS RESIDING AT NO.158 MUNIGURAPPA LAYOUT - 3 - HC-KAR NC: 2025:KHC:27196 MFA No. 4200 of 2025 AMRUTHAHALLI, SAHAKARNAGAR POST BENGALURU- 560 092 7. SRI. MUNIRAJU B S/O LATE M. BEERAPPA AGED ABOUT 50 YEARS RESIDING AT NO.158 MUNIGURAPPA LAYOUT AMRUTHAHALLI, SAHAKARNAGAR POST BENGALURU- 560 092 8. SRI. M. VENKATASWAMI REDDY S/O MUNIREDDY AGED ABOUT 67 YEARS NO.306, SWAMY VIVEKANANDA LAYOUT AMRUTHALLI, SAHAKARANAGAR POST BANGALORE-560 092 9. SRI. B.M. NANJA REDDY AGED ABOUT 77 YEARS NO.306, SWAMY VIVEKANANDA LAYOUT AMRUTHALLI, SAHAKARANAGAR POST BANGALORE-560 092 10. SRI. G.NANJUNDA REDDY S/O JANGAMAIAH AGED ABOUT 72 YEARS NO.306, SWAMY VIVEKANANDA LAYOUT AMRUTHALLI, SAHAKARANAGAR POST BANGALORE-560 092 11. SRI. MALLAPPA SHIVAPPA JEVOORGI AGED ABOUT 64 YEARS NO.306, SWAMY VIVEKANANDA LAYOUT AMRUTHALLI, SAHAKARANAGAR POST BANGALORE-560 092 12. SRI. K. JAYARAMAIAH S/O LATE KEMPANNA AGED ABOUT 64 YEARS - 4 - HC-KAR NC: 2025:KHC:27196 MFA No. 4200 of 2025 NO.306, SWAMY VIVEKANANDA LAYOUT AMRUTHALLI, SAHAKARANAGAR POST BANGALORE-560 092 13. SRI. SREERAMAIAH S/O LATE SONNAPPA AGED ABOUT 60 YEARS NO.306, SWAMY VIVEKANANDA LAYOUT AMRUTHALLI, SAHAKARANAGAR POST BANGALORE-560 092 14. SRI. R. GOPALA S/O RAMAIAH AGED ABOUT 54 YEARS NO.306, SWAMY VIVEKANANDA LAYOUT AMRUTHALLI, SAHAKARANAGAR POST BANGALORE-560 092 15. SRI. B. KRISHNAPPA S/O BACHHANNA AGED ABOUT 64 YEARS NO.306, SWAMY VIVEKANANDA LAYOUT AMRUTHALLI, SAHAKARANAGAR POST BANGALORE-560 092 16. SRI. N.R. SURESHA S/O RAMARAO AGED ABOUT 60 YEARS NO.306, SWAMY VIVEKANANDA LAYOUT AMRUTHALLI, SAHAKARANAGAR POST BANGALORE-560 092 17. SRI. DUNDAPPA MALLAPPA SAJJAN AGED ABOUT 64 YEARS NO.306, SWAMY VIVEKANANDA LAYOUT AMRUTHALLI, SAHAKARANAGAR POST BANGALORE-560 092 18. SRI.LAKSHMANA MALLAPPA SAJJAN MAJOR - 5 - HC-KAR NC: 2025:KHC:27196 MFA No. 4200 of 2025 NO.306, SWAMY VIVEKANANDA LAYOUT AMRUTHALLI, SAHAKARANAGAR POST BANGALORE-560 092 19. SRI. S.M. SHESHADRAI S/O S. MANJAIAH MAJOR NO.306, SWAMY VIVEKANANDA LAYOUT AMRUTHALLI, SAHAKARANAGAR POST BANGALORE-560 092 20. SRI. M. BIDDA REDDY S/O LATE. MUNIREDDY MAJOR NO.306, SWAMY VIVEKANANDA LAYOUT AMRUTHALLI, SAHAKARANAGAR POST BANGALORE-560 092 …RESPONDENTS (BY SRI. M. SUBRAMANI, ADVOCATE FOR C/R8) THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DT. 16.04.2025 PASSED ON IA NOS.1 AND 4 IN O.S.NO.299/2023 ON THE FILE OF THE XXXV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CCH-36 , DISMISSING THE IA.NO.1 FILED U/O.39 RULE 1 AND 2 R/W SEC.151 OF CPC, AND ALLOWING THE IA.NO.4 FILED UNDER ORDER 39 RULE 4 OF CPC. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR - 6 - HC-KAR NC: 2025:KHC:27196 MFA No. 4200 of 2025 ORAL JUDGMENT This appeal is filed under Order XLIII Rule 1(r) read with Section 151 of Code of Civil Procedure, 1908, (for short, "CPC"), challenging the order dated 16.04.2025 passed on I.A.Nos. 1 and 4 in O.S.No.299/2023 by the XXXV Additional City Civil and Sessions Judge, Bengaluru (CCH-36). 2. The factual matrix involved in this appeal is as under: That the plaintiff filed a suit in O.S.No.299/2023, seeking the relief of partition and separated possession of plaintiff's 2/5th share out of their father's half share in the suit schedule property and also to declare that, the registered Sale Deed dated 29.01.1988 standing in the name of defendant Nos. 8 to 20 are not binding on the plaintiffs to the extent of their share, so also have prayed for declaration that, the registered Consent Deed dated 28.10.2020 in favour of defendant Nos. 8 to 20 are not - 7 - HC-KAR NC: 2025:KHC:27196 MFA No. 4200 of 2025 binding on the plaint to the extent of their share stated supra. 3. The suit schedule property involved in this case is described as Survey No. 30/2 measuring 3 acres 7 guntas situated in Amruthhalli Village, Yelahanka Hobli, Bangalore North Taluk, so described in the plaint. 4. It is a specific assertion of the appellants/plaintiffs that, one late Dhodda Beerappa was the great grandfather of the plaintiffs. He had a son by name Munishamappa, who was the grandfather of the plaintiffs and defendant Nos. 1, 2, 4 to 7. Defendant No.3 is the mother of defendant Nos.4 to 7. The grandfather of the plaintiffs had 2 sons by name M. Muniswamy and M. Beerappa. The plaintiffs and defendant Nos. 1 and 2 are the sons of late. M. Muniswamy. Defendant Nos.4 to 7 are the children and defendant No.3 is the wife of late. M.Beerappa. - 8 - HC-KAR NC: 2025:KHC:27196 MFA No. 4200 of 2025 5. According to the plaintiffs, their father and uncle inherited the scheduled property from their father Munishamappa. After the death of their grandfather on 26.04.1986, the suit schedule property was transferred in the names of father of the plaintiffs and uncle B.M. Beerappa. It is further stated that, no partition has taken place in between the family members in respect of the schedule property. It is alleged that, defendant Nos. 3 to 7 in collusion with the defendant Nos. 8 to 20 created a release deed on 28.10.2020 confirming the Sale Deed dated 29.01.1988 stated to have been executed by the father of the plaintiffs and uncle of the plaintiffs. 6. It is stated that, their father and uncle have no absolute right to alienate the property. When the plaintiffs requested the defendants to effect a partition and give their legitimate share, there was a flat refusal. Therefore, the plaintiffs have filed the suit. Along with the plaint, the plaintiffs also have filed I.A.No. 1 under Order XXXIX Rule - 9 - HC-KAR NC: 2025:KHC:27196 MFA No. 4200 of 2025 1 and 2 of CPC to restrain defendants Nos. 8 to 20 from alienating suit schedule property. 7. Before the trial Court defendants Nos. 8 to 20 appeared and filed written statement/objections to I.A.No. 1. They also filed I.A.No. 4 under Order XXXIX Rule 4 of CPC, to vacate the ex-parte temporary injunction passed against them. It is specifically contended by defendant Nos. 8 to 20 that, the claim of the plaintiffs is barred by limitation under Article 16 of the Indian Limitation Act. The Sale Deed dated 29.01.1998 is challenged in a suit filed in the year 2023. 8. It is further contended that, there was a Consent Deed dated 28.10.2020 confirming the Sale Deed dated 29.01.1988. These defendants Nos.8 to 20 are the absolute owners of the property and these plaintiffs have lost their right in the property in question. 9. It is contended that, already the suit schedule property has lost its characteristics of agricultural land and - 10 - HC-KAR NC: 2025:KHC:27196 MFA No. 4200 of 2025 there are 65 sites formed and majority of them are sold. It is further contended that, the plaintiffs have suppressed the material facts. When the Sale Deed was executed, the plaintiffs never objected. Even the Sale Deed was executed by the defendants on 12.04.1999 and the plaintiffs are the beneficiaries of the said sale deed and partition also has taken place. Thus, it is contented that, it is the defendants, who are in possession of the scheduled property and hence the plaintiffs cannot maintain the application. 10. The learned trial Court, on considering the rival submission of both the parties have dismissed I.A.No. 1 and allowed I.A.No. 4. This is how now the plaintiffs are before this Court challenging the impugned order. 11. I have heard the arguments of both the sides. Sri. Keshava K.V., learned counsel for the appellants submits that, it is the suit for partition and the plaintiffs are deprived of their right in the property though they are - 11 - HC-KAR NC: 2025:KHC:27196 MFA No. 4200 of 2025 really entitled to. There is alienation of the property behind the back of the plaintiffs and defendant Nos.8 to 20 are the purchaser of the property. It is contended that, if the defendant succeed in alienating the property, the very purpose of the suit will be frustrated. 12. On the other hand, the counsel for the respondent submits that the learned trial Court has rightly observed during the course of the order that, already there was a Sale Deed in the year 1988 and it was challenged in the year 2023 by filing the suit. The case of the plaintiffs is barred by the law of limitation. Thus, it is contended that, there is no infirmity in the impugned order. 13. I have given my anxious consideration to the arguments of both the side. Perused the records. 14. The plaint averments as well as the written statement so filed do show that, the relationship between plaintiffs and defendant Nos.1 to 7 is not in dispute. Even - 12 - HC-KAR NC: 2025:KHC:27196 MFA No. 4200 of 2025 the plaintiffs have produced a genealogical tree. It is the specific defence of the defendants that, by virtue of the Sale Deed dated 29.01.1988, these defendants Nos.8 to 20 have become the owners of the schedule property so mentioned in the plaint. It is their definite case that, the said property was sold for the family legal necessity. While passing the impugned order, the learned trial Court has considered the submission of both the sides and specifically observed that, the execution of the Sale Deed by M. Munishamappa and Beereppa was in the exclusive knowledge of the plaintiffs from the date of the sale itself. That means, it is stated that, these plaintiffs were very much aware about the said Sale Deed. 15. On 28.10.2020, there was a Confirmation deed executed by defendant Nos.3 to 7, in favour of defendant Nos. 8 to 20. Thereafter the present suit is filed. The Partition Deed is produced and wherein the plaintiffs and defendant Nos. 1 and 2 clearly stated that, the converted sites have allotted to the heirs of Ramachandra and - 13 - HC-KAR NC: 2025:KHC:27196 MFA No. 4200 of 2025 Nagaraja, M. Beerappa, Krishnamurthy is also shown there. There was a partition dated 03.02.2003. Thus, the learned trial Court on reading the material documents produced by both the sides, have come to the conclusion that, it is defendant Nos.8 to 20 have converted the said properties and formed the sites and now if such an injunction is granted so prayed by the plaintiffs, it is defendants, who put to great hardship and loss. So also it is observed that, the plaintiffs have not made out any prima facie case. 16. It is further observed that, the plaintiffs have suppressed material facts. While refusing grant of temporary injunction, the learned trial Court has kept in mind the three components of grant of temporary injunction i.e. prima facie case, balance of convenience and hardship. The facts so brought on the record by the plaintiffs and defendants do establish that, the plaintiffs have not made out any prima facie case and their rights have to be agitated in the trial. Rightly the learned trial - 14 - HC-KAR NC: 2025:KHC:27196 MFA No. 4200 of 2025 Court has held that, no balance of convenience tilts in favour of the plaintiffs and no hardship would be caused to the defendants. 17. I do not find any factual or legal error in the impugned order. Therefore, there is no merit in this appeal and appeal is liable to be dismissed. Accordingly, it is dismissed. 18. Trial Court is requested to expedite the trial of suit if possible. No orders as to cost. Sd/- (RAMACHANDRA D. HUDDAR) JUDGE AM List No.: 1 Sl No.: 46