Full Judgment Text
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CASE NO.:
Appeal (civil) 3128-3129 of 2008
PETITIONER:
Mandali Ranganna & Ors. Etc
RESPONDENT:
T. Ramachandra & Ors
DATE OF JUDGMENT: 30/04/2008
BENCH:
S.B. Sinha & V.S. Sirpurkar
JUDGMENT:
J U D G M E N T
REPORTABLE
CIVIL APPEAL NOs. 3128-3129 OF 2008
(Arising out of SLP(C) Nos. 10928-10929 of 2007)
S.B. Sinha, J.
1. Leave granted.
2. Appellants herein are aggrieved by and dissatisfied with a judgment
and order dated 6.3.2007 passed by the High Court of Karnataka whereby
and whereunder the private respondents herein were allowed to make
constructions on the lands in suit, subject to the final decision therein. It was
furthermore directed that any alienation or creation of an interest by the
defendants would be subject to the decision of the suit.
3. With a view to appreciate the fact involved in the matter, we may
notice the genealogical table of the parties.
Mandi Madalappa
|
_________________________________________________________________________
| |
|
Chikkaranganna T.M. Thimmaiah Muniswamappa
| | |_Puttathyamma |_M. Rama
chandra
R. Ranganna |____________________ (Def. 1)
| Padma W/
o
| | (D
ef. 2)
| |
| _______________________________
| | |
|
| Shekhar Harish
Rekha
| (Def. 3) (Def.4)
(Def.5)
___________________________________________________________
| | | |
Mandali Ranganna Munianna R. Thimmaiah Puttanna Mandal
(Plf. 1) (Plf. 2) (Plf. 3) (Plf. 4)
4. The suit properties were acquired in the year 1912 by a deed of sale
dated 22.1.1912. Allegedly, the predecessor in interest of the respondents
being the original defendant No. 1 (M. Ramachandra) was adopted by
Puttathyamma, widow of late T.M. Thimmaiah. A deed of adoption,
therefor, was executed on 13.12.1937. Allegedly, a partition in the family
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properties took place in the year 1924.
One of the questions which arose for consideration in the suit was as
to whether the said partition was in respect of all the properties or a partial
partition. Appellants contend that even assuming that Puttathyamma adopted
M. Ramachandra, from a perusal of a deed of adoption, it will appear that
some properties were still been jointly possessed.
5. On 23.5.1938, upon the death of Sri T.M. Chikkaranganna his legal
representatives partitioned his self-acquired properties, both moveable and
immovable. On 22.2.1954, the children of Muniswamappa executed a
registered Partition Deed, by which his share in the properties came to be
partitioned. From 1957-1969, a number of transactions mainly in the nature
of grant of lease took place in respect of the suit properties. No title came to
be created in favour of third parties.
On 20.12.1971 for the first time, the first respondent entered into a
partition deed, with the members of his family in which the suit schedule
property was set out in the deed. Between 2002-2003, the petitioners called
upon the defendants to partition the said properties which was refused by the
defendants.
6. Appellants herein filed original suit No. 7039 of 2003 in the City Civil
Court, Bangalore in September, 2003 inter alia contending that the partition
which had taken place earlier between the parties was only a partial one.
They merely prayed for a declaration that the suit schedule properties are the
joint family properties of the appellants and respondents herein.
7. They also prayed for a preliminary decree for partition and possession
of the property in Schedules A and B according to the shares of parties. A
consequential decree for permanent injunction restraining the respondents
from alienating or constructing on the said properties was also sought.
8. During pendency of the said suit, original defendants executed a
registered deed of lease on 15.12.2004 in favour of respondent No. 12
herein. Possession of the property, in question, was handed over to him. A
deed of rectification was also executed on 12.12.2005. Appellants herein,
thereafter filed an application (I.A. No. 9) for grant of injunction against the
defendant/respondent for restraining them from digging pits, putting up
constructions etc. during pendency of the suit. Respondent No. 12 was also
impleaded as party therein.
Another application (I.A. No. 12) for injunction was also filed for
restraining the defendants and in particular the defendant No. 7 from
changing the nature of property or transferring or alienating the right in
respect of the properties described in Schedule "A" of the plaint in favour of
the third parties.
9. By an order dated 24.4.2006, the learned Trial Judge directed
maintenance of status quo. However, by reason of an order dated 12.9.2006,
both the I.As. were allowed. The orders of injunction as prayed for were
passed therein. On an appeal having been preferred therefrom by the
respondents herein before the High Court, the same was allowed by reason
of the impugned judgment directing;
"17. For the above said reasons, both the appeals are
allowed and setting aside the impugned order, I.As. 9 and 12
filed before the Trial Court are dismissed. However, it is
made clear that any construction that is going to be put up in
suit properties shall be subject to the decision in the suit and
any alienation or creation of interest by the defendants, shall
be subject to the decision of the suit. If any alienation is
made or any interest is created in the suit property during the
pendency of suit, the defendants shall intimate transferees or
concerned person about the transaction being subject to the
decision of the suit and shall mention in the concerned
document that transaction will be subject to the decision in
the suit. Any creation of interest shall be intimated by the
defendants to the Trial Court."
10. Mr. Arun Jaitley, learned senior counsel appearing on behalf of the
appellant submitted;
(i) From a perusal of the deed of adoption dated 13.12.1937, it would
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appear that the properties, in question, had not been partitioned
fully.
(ii) Possession of a co-owner would be possession of the others and in
that view of the matter, the respondents must be held to have been
possessing the lands for the benefits of all the co-sharers. The fact
that no mutation of the land has been effected is also a pointer to
show that there was no final partition between the parties.
(iii) It may be that a lease was created in respect of 1/3rd of the
property, but thereby the right of the plaintiffs had not come to an
end and in that view of the matter, so long the co-sharers were
managing the properties in a manner which was not detrimental to
the interest of the appellants, it was not necessary for them to file
any suit. Creation of a third party interest, in a situation of this
nature, or allowing the parties to carry on constructions would
cause irreparable injuries to the appellants.
(iv) Respondents having started constructions despite knowledge of the
special leave petition, this Court should direct stoppage of such
constructions in view of their conduct.
11. Mr. K.K. Venugopal, Mrs. Nalini Chidambram and Mr. R.F. Nariman,
learned senior counsel appearing on behalf of the respondents, on the other
hand, submitted:
(i) The partition having been effected as far back in 1924, and the
principal respondents having been in possession of the properties
from 1956 till 2003 when they granted lease in respect of 1/3rd of
the property, the impugned judgment should not be interfered with.
Even an advertisement was issued for sale of 1/3rd of the land in
the year 1985 and the deed of sale was executed on 25.07.1989.
(ii) Admittedly, as would appear from the photographs appended to the
counter-affidavit, huge constructions have come up on the lands in
question and as such there was no reason as to why the appellants
had kept quiet for so long.
(iii) A large number of documents have been filed before the court
below before the courts below not only showing dealings with the
properties but also showing execution of the deeds of lease,
payment of corporation tax, income tax, capital gains tax, etc.
which clearly point out separate possession of the properties by the
defendants.
(iv) In view of the fact that they have been collecting rent from the
tenants themselves would show that the appellants have no prima
facie case. These documents having been filed before the learned
Trial Judge, it committed a serious error in not taking the same into
consideration and, thus, the High Court has rightly interfered
therewith by reason of the impugned judgment.
(v) Respondents, keeping in view the escalation of the costs of the
building materials, would suffer irreparable injury, if they are not
permitted to carry out the constructions.
(vi) The Trial Court proceeded to consider the matter only from the
angle as to whether the appellants would suffer irreparable injury
or not without considering the other factors relevant for grant of
injunction, viz., prima facie case and balance of convenience.
(vii) In any event, as the respondent No. 7 has spent about three crores
of rupees as a developer, the impugned judgment should not be
interfered with.
12. The property in question is indisputably a valuable property. It is
situated in the heart of the commercial area of the town of Bangalore. The
land in question admeasures 1 lakh 70 thousand sq. feet.
13. The principal question which arises for consideration is as to whether
the properties in question were the subject matter of partition purported to
have taken place in 1924 or subsequently or not?
14. Mr. Jaitley has taken us through various documents filed by the
parties to show that the respondents had been taking contradictory stand with
regard to the date of oral partition among T.M. Muniswamapa, T.M.
Thimmaiah & T.M. Chikkaranganna, sons of Mandi Madalappa. It was
pointed out that even in the deed of partition, a stand was taken by
Puttathayamma that her husband and his brothers have effected partition on
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30.06.1924 and the properties fallen to the respective shares are being
enjoyed by the respective owners, but in the purported deed of partition
dated 22.02.1954 between M.M. Madalappa and M.M. Thimmaiah, the date
of partition is mentioned as 24.06.1924. However, in the sale deed dated
30.09.1987 executed between M.M.T. Muniswamappa @ M.M.T. Navin
and Mr. Ziaulla Sheriff, M/s. Alexander Apartment Development
Corporation, Bangalore, it was stated that the three brothers entered into an
oral partition on 26.04.1924. Whereas, in the synopsis, it was stated that the
family properties were partitioned on 30.06.1924 and the properties in
question fell into the share of T.M. Thimmaiah which was succeeded by
Smt. T. Puttathayamma and T. Ramachandra and thereafter by his family
members, in the writ petition filed on behalf of T.M. Ramachandra, T.R.
Harish, T.R. Shekar, Smt. Padma, Smt. T.R. Rekha and Smt. T.R. Nadini
being W.P. No. 29853 of 2002, it was stated that Mandi Madalappa was said
to have been put in possession pursuant to the sale transaction and after his
death the same was succeeded by T.M. Thimmaiah who had been in
enjoyment of the property during his life time and he had let out the property
in favour of Garrison Engineers. In the W.P. No. 31865 of 2002, it was
stated that Mandi Madalappa was put in possession and enjoyment of the
property pursuant to the said transaction and after his death the property was
succeeded by his son Shri T.M. Thimmaiah who had been in possession and
enjoyment of the property during his life time and he had let out the property
in favour of Garrison Engineers.
15. We have taken note of the aforementioned contentions of Mr. Jaitley
only to highlight with issue in regard to the factum of partition but the same
by itself, in our opinion, for the purpose of determining the issues herein,
would not be conclusive. Prima facie it appears that the respondents had
been in possession of the properties in suit for a long time. The heirs of
Thimmaiah had admittedly been dealing with the properties exclusively.
Appellants never exercised any act of possession. The learned Trial Judge in
his judgment itself observed:
"41\005No doubt, there is no reference to the suit
properties as belonging to the joint family
property. This may be a point in favour of the
defendants in support of their contention that the
suit property was already divided in the year 1924
and, therefore, these documents do not contain
reference to the suit properties\005
42. Similarly, the other documents furnished by
the counsel for the defendants 1 to 6 in page No.
75 to 293 may establish their contention about
their exclusive possession. But, I am afraid that
this fact itself will be sufficient to throw away the
suit at the threshold."
16. A large number of documents were produced by the respondents to
substantiate that the property in question was in exclusive enjoyment of
T.M. Thimmaiah being the adopted father of T. Ramachandra from 1924 to
1936. The properties were in possession of T. Puttathaiamma, widow of
Thimmaiah from 1937 to 1955 and thereafter the other respondents.
17. Respondents contend that the adoption deed must be read as a whole.
The translation of the deed of adoption does not appear to be correct. The
deed of adoption categorically establishes that the properties were to belong
to T. Puttathyamma during her life time, and thereafter the same was to vest
in the adoptive son T. Ramachandra. Although no reference to the suit
properties might have been made in the deed of adoption but they had all
along been in possession of T. Puttathyamma. Apart therefrom evidently the
deed of lease was executed in the year 1963 in respect of 1/3rd of the suit
schedule property. It was renewed in the year 1969. The property was
developed and the nature and character thereof was changed from time to
time. A registered deed of lease was executed in the year 1968 between
Killik Nixon and T. Ramachandra. A deed of partition was also executed on
20.12.1971. A deed of lease was executed in the year 1977 between
Respondent No. 6 and Classic Automobiles. A public notice was also issued
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in the year 1985 whereafter a deed of sale was executed on 25.07.1989.
18. While considering an application for grant of injunction, the court will
not only take into consideration the basic elements in relation thereto, viz.,
existence of a prima facie case, balance of convenience and irreparable
injury, it must also take into consideration the conduct of the parties.
Grant of injunction is an equitable relief. A person who had kept
quiet for a long time and allowed another to deal with the properties
exclusively, ordinarily would not be entitled to an order of injunction. The
court will not interfere only because the property is a very valuable one.
We are not however, oblivious of the fact that grant or refusal of injunction
has serious consequence depending upon the nature thereof. The courts
dealing with such matters must make all endeavours to protect the interest of
the parties. For the said purpose, application of mind on the part of the
courts is imperative. Contentions raised by the parties must be determined
objectively.
19. This Court in M. Gurudas and Others v. Rasaranjan and Others
[(2006) 8 SCC 367] noticed:
"19. A finding on "prima facie case" would be a
finding of fact. However, while arriving at such a
finding of fact, the court not only must arrive at a
conclusion that a case for trial has been made out
but also other factors requisite for grant of
injunction exist. There may be a debate as has been
sought to be raised by Dr. Rajeev Dhavan that the
decision of the House of Lords in American
Cyanamid Co. v. Ethicon Ltd. would have no
application in a case of this nature as was opined
by this Court in Colgate Palmolive (India) Ltd. v.
Hindustan Lever Ltd. and S.M. Dyechem Ltd. v.
Cadbury (India) Ltd. but we are not persuaded to
delve thereinto."
20. Therein, however, the question in regard to valid adoption of a
daughter was in issue. This Court held that Nirmala was not a validly
adopted daughter. This Court wondered:
"34. The properties may be valuable but would
it be proper to issue an order of injunction
restraining the appellants herein from dealing with
the properties in any manner whatsoever is the
core question. They have not been able to enjoy
the fruits of the development agreements. The
properties have not been sold for a long time. The
commercial property has not been put to any use.
The condition of the properties remaining wholly
unused could deteriorate. These issues are relevant.
The courts below did not pose these questions unto
themselves and, thus, misdirected themselves in
law."
21. Emphasis was also laid on the conduct of the parties while granting an
order of injunction.
22. In Seema Arshad Zaheer and Others v. Municipal Corpn. Of Greater
Mumbai and Others [(2006) 5 SCC 282], this Court held:
"30. The discretion of the court is exercised to
grant a temporary injunction only when the
following requirements are made out by the
plaintiff: (i) existence of a prima facie case as
pleaded, necessitating protection of the plaintiff’s
rights by issue of a temporary injunction; (ii) when
the need for protection of the plaintiff’s rights is
compared with or weighed against the need for
protection of the defendant’s rights or likely
infringement of the defendant’s rights, the balance
of convenience tilting in favour of the plaintiff;
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and (iii) clear possibility of irreparable injury
being caused to the plaintiff if the temporary
injunction is not granted. In addition, temporary
injunction being an equitable relief, the discretion
to grant such relief will be exercised only when the
plaintiff’s conduct is free from blame and he
approaches the court with clean hands."
[See also Transmission Corpn. of A.P. Ltd. v. Lanco Kondapalli Power (P)
Ltd. (2006) 1 SCC 540]
23. Rightly or wrongly constructions have come up. They cannot be
directed to be demolished, at least at this stage. Respondent No. 7 is said to
have spent three crores of rupees. If that be so, in our opinion, it would not
be proper to stop further constructions.
24. We, therefore, are of the opinion that the interest of justice would be
subserved if while allowing the respondents to carry out constructions of the
buildings, the same is made subject to the ultimate decision of the suit. The
Trial Court is requested to hear out and dispose of the suit as early as
possible. If any third party interest is created upon completion of the
constructions, the deeds in question shall clearly stipulate that the matter is
subjudice and all sales shall be subject to the ultimate decision of the suit.
All parties must cooperate in the early hearing and disposal of the suit.
Respondents must also furnish sufficient security before the learned Trial
Judge within four weeks from the date which, for the time being, is assessed
at Rupees One Crore.
25. For the reasons aforementioned, the appeals are dismissed subject to
the observations and directions made hereinbefore. However, in the facts
and circumstances of the case, there shall be no order as to costs.