1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 10 TH DAY OF OCTOBER, 2014 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR MISCELLANEOUS FIRST APPEAL NO.6137/2014 (CPC) BETWEEN: SMT.LAKSHMAMMA WIFE OF NARAYANAPPA, AGED ABOUT 50 YEARS, RESIDING AT NO.1, 3 RD CROSS, B.CHANNASANDRA, KALYANA NAGAR POST, BANGALORE-560043. …APPELLANT (BY SRI JANARDHANA G., ADV.) AND 1. SRI A.MUNAIAH SON OF LATE AVALAPPA AGED ABOUT 48 YEARS, NO.111, KAGGADASA PURA, CV RAMAN NAGAR (POST) K.R.PURA HOBLI, BANGALORE-560093 2. SRI.VENKATESH SON OF LATE PILLAIAH SINCE DECEASED BY LEGAL REPRESENTATIVES 2(a) SMT.MUNIVENKATAMMA WIFE, AGED ABOUT 68 YEARS, 2(b) SRI.ASHWATHA SON, AGED ABOUT 48 YEARS, 2 2(c) SRI.NARAYANA SON, AGED ABOUT 41 YEARS, NOS.2(a) to 2(c) ARE RESIDING AT NO.225, 19 TH CROSS, KAGGADASAPURA, SIR. C.V.RAMAN NAGAR, BANGALORE-560093. 2(d) SMT.BHAGYAMMA DAUGHTER WIFE OF RAMESH, BHAGLUR COLONY, DEVANAHALLI TALUK, CHIKKA JALAHALLLI HOBLI, BANGALORE-562149. 2(e) SMT.ASHAWATHAMMA DAUGHTER WIFE OF NAGARAJ, KUNDALAHALLI, ITPL MAIN ROAD, RACHE KATTE ROAD, BANGALORE-560037 3. SRI.P.KRISHNAIAH SON OF LATE PILLAIAH AGED ABOUT 70 YEARS, RESIDING AT KAGGADASA PURA VILLAGE, C V RAMAN NAGAR (POST) K.R.PURA HOBLI, BANGALORE-560093 4. M/S N.S.B.REAL ESTATES PRIVATE LIMITED (NSB GROUP), NO.J-134, SECTOR-41, NEAR PRAYAG HOSPITAL NOIDA, UTTARAPRADESH-201301 REPRESENTED BY ITS AUTHORIZED REPRESENTATIVE MR.P.NARASIMHA MURTHY 5. SRI.SEENAPPA SON OF SRI.NARAYANAPPA 3 AGED ABOUT 43 YEARS, RESIDING AT NO.6, NEAR MULAKANTAMMA TEMPLE B.NARAYANAPURA, DOORVANINAGAR POST, BANGALORE-560016 6. SRI.T.RAMESH SON OF LATE THIMMAPPA, AGED ABOUT 44 YEARS, RESIDING AT NO.101, NORTH MAIN ROAD YEDIYUR, BANGALORE-560082 7. SRI.SHREYAS WIFE OF SRI R.RAVI AGED ABOUT 32 YEARS RESIDING AT NO.201 “SAMPOORNA AVENUE” KAGGADASAPURA MAIN ROAD C.V.RAMAN NAGAR POST, BANGALORE-560093 8. SRI.S.RAVI SON OF LATE B.S.RAMAIAH REDDY AGED ABOUT 42 YEARS, RESIDING AT NO.201 “SAMPOORNA AVENUE” KAGGADASAPURA MAIN ROAD C.V.RAMAN NAGAR POST, BANGALORE-560093 ...RESPONDENTS THIS MFA FILED U/O 43 RULE 1(r) OF CPC, AGAINST THE ORDER DT.14.08.2014 PASSED ON I.A. DT.10.06.2014 IN O.S.NO.25879/2011 ON THE FILE OF THE 28 TH ADDITIONAL CITY CIVIL JUDGE, BANGALORE, DISMISSING THE APPLICATION DT.10.06.2014 FILED U/O 39 RULE 2A R/W SEC.151 OF CPC. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING: 4 JUDGMENT This is a plaintiff’s appeal against the order passed by XXVIII Addl. City Civil Judge, Bangalore, in O.S.No.25879/2011 dated 14.08.2014, whereunder application filed by plaintiff for an order of temporary injunction against defendant came to be rejected. 2. Plaintiff has filed a suit for partition and separate possession of suit schedule properties contending interalia that plaintiff’s father late Sri Avalappa and defendants 2 and 3 are sons of late Sri Pillaiah and said Sri Pillaiah during his lifetime had acquired Schedule ‘A’, ‘B’ and ‘C’ properties and on his demise intestate, defendants 2 and 3 along with Sri Avalappa succeeded to his estate and they were in joint possession and enjoyment of suit schedule properties. It is also contended that Sri Avalappa who died on 08.02.2004 left behind plaintiff and first defendant as his legal heirs to succeed to his estate and on account of there being no partition in the joint family 5 properties, she claimed that she is entitled to half share of 1/3 rd share of Avalappa in suit schedule properties and after same being refused by defendants 2 and 3, suit in question has been filed seeking for partition and separate possession. 3. On the same lines as pleaded in the plaint and reiterating the contentions raised therein, application for grant of temporary injunction to restrain defendants from putting up any construction over any portion of plaint ‘B’ property, also came to be filed. Trial Court after considering the rival contentions, has rejected the said application after considering the plea advanced by defendants 6 to 8. It has been noticed by the trial Court that contentions raised by defendants 6 to 8 that the suit in question has been filed by plaintiff in collusion with defendants 1 to 4 by including Schedule ‘B’ property, in which a residential layout formed way back in the year 1996-97, deserves to be accepted, inasmuch as land bearing Sy.No.17/1 of 6 R.Narayanapura measuring 1 acre 20 guntas was owned by deceased Sri Pillaiah, who had acquired the same under a partition dated 23.05.1934 and he had died intestate on 26.07.1977 leaving behind his sons Sriyuths Avalappa, Venkatesh and P.Krishnaiah and after inheriting schedule ‘B’ property they had executed a General Power of Attorney in respect of said Schedule ‘B’ property on 28.06.1997 in favour of one Sri T.Jayaramareddy, who had formed a residential layout and had sold the sites formed therein to third parties. It was also noticed by trial Court that sons of Sri Pillaiah themselves had also sold some of the sites in the said layout formed by Sri T.Jayaramareddy. Trial Court after considering the documents produced by defendants 5 to 8, has noticed that factual aspect of residential sites having been formed in Sy.No.17/1 way back in the year 1996-97, was true and schedule ‘B’ property did not retain the characteristic of agricultural land. Trial Court had also found that there was suppression of fact in this regard by plaintiff and rightly so. 7 4. The order under challenge would also indicate that sons of Sri Pillaiah out of sale proceeds they received from selling the land bearing No.17/1, had purchased certain other lands bearing Nos.96, 95, 47 and 46 of Doddabanahalli and had partitioned the said lands amongst themselves on 15.12.2013. In fact plaintiff and defendants 1 to 3 along with other family members have also executed a confirmation deed on 03.04.2006 confirming that site No.8 carved out of land described in schedule ‘B’ property by confirming that purchasers are the owners of said site. Plaintiffs and defendants 1 to 3 have also signed as consenting witnesses to the sale deeds dated 27.09.2006 and 09.05.2007 executed by the father of plaintiff and first defendant - Sri Avalappa and his brothers, which would indicate that Schedule ‘B’ property was not available for partition at all. It was also noticed by the trial Court that some of the sites owners namely, owners of site Nos.34 and 35 i.e., Smt T.Vijayalakshmi and Sri 8 T.Prakash had filed a suit in O.S.No.6755/2005 for perpetual injunction against defendants 1 to 3 and same came to be decreed way back on 14.07.2010, whereunder it has been categorically held that item ‘B’ of suit schedule property i.e., land bearing Sy.No.17/1 has been sold in favour of third parties and residential sites had been formed and sold. Said finding is based on proper appreciation of material documents produced before trial Court and for the purposes of considering as to whether there is prima facie case and balance of convenience, trial Court has found the answer in the negative i.e., against plaintiff and in favour of defendants 5 to 8. In fact, trial Court has also noticed that one Sri M.Ahmad Khan had purchased two sites in Sy.No.17/1 i.e., site Nos.29 and 30 and had paid necessary betterment charges to Mahadevpur C.M.C. and thereafterwards he had sold the said sites in favour of defendants 5 and 6 on 12.10.2012 and in-turn they sold the same to defendant No. 7 on 25.07.2013, who has got plan sanctioned from BBMP for putting up 9 construction of a residential building and said construction is at the stage of first floor and by virtue of order of status-quo, he has been deprived from putting up further construction and as such, it has found that in the event of an order of status-quo is being continued, it is defendant No.7 and other defendants, who are purchasers of different sites, who would be put to irreparable loss and injury and as such, it has held that plaintiff is not entitled for an order of status-quo being continued. These material facts would clearly disclose or indicate that even equities are not in favour of plaintiff. Hence, I do not find any merit in this appeal and same stands rejected. Sd/- JUDGE DR .