In the High Court of Karnataka at Bengaluru Dated This the 26Th Day of September, 2018 Before the Hon'ble Mr. Justice K.N. Phane

1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26 TH DAY OF SEPTEMBER, 2018 BEFORE THE HON'BLE MR. JUSTICE K.N. PHANEENDRA M.F.A.No.6770/2018 C/w M.F.A.No.6771/2018 (CPC) Between: 1. Narasamma, W/o Sri Muniyappa, D/o Late Sri Doddanagappa, Aged about 66 years, Residing at Vaddahalli Village, Nandagudi Hobli, Hosakote Taluk, Bangalore Rural District – 562 122. 2. Munishamappa, S/o Late Sri Doddanagappa, Aged about 72 years, Residing at Agalakote Village, Channarayapatna Hobli, Devanahalli Taluk, Bangalore Rural District – 573 116. …Appellants (Common in both appeals) (By Sri Vageesha.N., Advocate) And: 1. Ashwathappa S/o Late Sri Doddanagappa, Aged about 61 years, 2 2. Lakshmamma, W/o Sri Ashwathappa, Aged about 51 years, 3. Bhagyamma, D/o Aswathappa, Aged about 39 years, 4. Muddamma, D/o Aswathappa, Aged about 37 years, 5. Nagamma, D/o Aswathappa, Aged about 35 years, 6. Shobha, D/o Aswathappa, Aged about 33 years, 7. Nagesh, S/o Aswathappa, Aged about 31 years, 8. Pushpa, D/o Aswathappa, Aged about 29 years, 9. Vijayakumar, D/o Aswathappa, Aged about 27 years, 10. Narasimhappa, S/o Late Sri Doddanagappa, Aged about 59 years, 11. Byramma, W/o Narasimhappa, Aged about 51 years, 3 12. Sunandamma, D/o Narasimhappa, Aged about 37 years, 13. Narayanaswamy, S/o Narasimhappa, Aged about 35 years, 14. Narasimhamurthy, S/o Narasimhappa, Aged about 33 years, 15. Jayamma, D/o Late Sri Doddanagappa, Aged about 56 years, 16. Narayanamma, D/o Late Sri Doddanagappa, Aged about 54 years, 17. Rathnamma, D/o Late Sri Doddanagappa, Aged about 52 years, 18. Munithayamma, D/o Late Sri Doddanagappa, Aged about 50 years, All are residing at Agalakote Village, Channarayanpatna Hobli, Devnahalli Taluk, Bangalore Rural District – 573 116. 19. Jagannath V. Pai, S/o Vaman Pai, Aged about 65 years, 4 20. Shantha J.Pai, W/o Jagannath V.Pai, Aged about 56 years, Both are residing at, “Parishram”, No.46/52, 10 th ‘A’ Main, 1st Block, Jayanagar, Bangalore – 560 011. ... Respondents (Common in both appeals) (Notice to R-1 to R-18 is dispensed with vide Court order dated 26/9/2018; Miss. Sahana S. Pai, Advocate for C/R-19 and R-20.) M.F.A.No.6770/2018 is filed under Order 43 Rule 1(r) of CPC, against the order dated 25.07.2018 passed on IA No.2 in O.S.No.572/2017 on the file of the Senior Civil Judge, JMFC, Devanahalli, Bengaluru Rural, rejecting I.A.No.2 filed under Order 39 Rule 1 & 2 read with Section 151 of CPC. M.F.A.No.6771/2018 is filed under Order 43 Rule 1(r) of CPC, against the order dated 25.07.2018 passed on I.A.No.1 in O.S.No.572/2017 on the file of the Senior Civil Judge and JMFC, Devanahalli, rejecting the petition filed under Order 39 Rule 1 & 2 read with Section 151 of CPC. These M.F.As. are coming on for admission this day, the Court delivered the following: 5 J U D G M E N T Heard the learned counsel for the appellants and the respondents and I have carefully perused the orders passed by the Trial Court. 2. The plaintiffs’ suit is for partition and separate possession in the suit schedule properties which are described as item Nos.1 and 2. Item No.1 of the suit schedule property is an agricultural land in Survey No.6/P11 New Survey No.75 measuring to an extent of four acres and item No.2 is in Survey No.52/1p1 measuring 1 acre, both situated at Agalakote village, Channarayapatna Hobli, Devanahalli Taluk. The plaintiffs have also sought for various reliefs including declaration that the release deed dated 22.8.2011 and the deed of power of attorney dated 20.4.2011 as null and void and not binding on the plaintiffs and thereby the plaintiffs virtually admit the existence of those documents. The Trial Court examined these documents produced before 6 the Court i.e., release deed, deed of power of attorney, agreement of sale and also sale deed in respect of item No.1 of the suit schedule property and after analyzing the entire documentary evidence on record, the Court came to a tentative conclusion that possession of suit schedule property item No.1 has been delivered in favour of defendant Nos.18 and 19 particularly, in view of the sale deed executed by defendant Nos.1 and 9. 3. Though the plaintiffs contended that, they are not parties to some of the documents, but the Court held that they are consenting witnesses to some of the documents and plaintiff No.1 has also executed the confirmation deed dated 6.6.2018 and sale deed dated 19.1.2017. Though the said confirmation deed is also challenged before the Court by filing a memo to the effect that all these documents which are registered have to be trashed out in a full dressed trial. The Trial Court should have relied on the documents by considering whether 7 those documents are void ab initio and whether these documents will create any right, title or interest over the property in favour of defendant Nos.18 and 19. As the said documents are registered, the Trial Court has made an observation that registered documents have presumptive value, unless it is rebutted. Therefore, considering that, the plaintiffs have not shown the revenue documents produced by defendant Nos.18 and 19 as unbelievable documents, the Trial Court refused to grant injunction order restraining defendant Nos. 18 and 19 from alienating or interfering with the suit schedule property. However, the Trial Court without passing any order with regard to item No.2, extended the interim order of injunction till the next of hearing, as an order of injunction with regard to item No.2 has already been passed by the Trial Court on I.A.No.3. 4. Looking to the above said facts and circumstances of the case, the Trial Court has exercised 8 the discretion after examination of documents and has tentatively observed that the defendant Nos.18 and 19 are in possession and enjoyment of the suit schedule property. Therefore, such order requires no interference by this Court. However, if defendant Nos. 18 and 19, during the pendency of the suit, induct any third party right in item Nos. 1 and 2, it may create complexity in future. Therefore, such equitable order should have been passed by the Trial Court on I.A.5 while vacating the order of injunction. 5. In the above said circumstances, though the order passed by the Trial Court is confirmed, in so far as interference is concerned, it is modified as regards alienation of suit schedule property. Hence, I pass the following: O R D E R Both the appeals are hereby partly allowed. Consequently, the order passed by the Trial Court is 9 confirmed in so far as vacating the injunction order, in so far as interference is concerned, however defendant Nos.18 and 19 are hereby restrained from alienating the property during the pendency of the suit so far as item No.1 is concerned. As no orders have been passed in so far as item No.2, it is left to the discretion of Trial Court to pass the orders in accordance with law. The Trial Court is hereby directed to expedite the trial itself and dispose of the suit as expeditiously as possible. Sd/- JUDGE RS/* ct:am .

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