Venkatesh vs Narayanappa and Others

B.S. Patil, J.

Since common order dated 29.11.2014 passed by the court below on I.A. Nos. 1 and 2 in O.S. No. 548/2014 are called in question in these two appeals, they are clubbed, heard together and disposed of by this common judgment.

I.A. No. 1 was filed by the plaintiff seeking an order of temporary injunction restraining the 5th defendant from changing the nature of the suit schedule property. I.A. No. 2 was filed by the plaintiff seeking an order of temporary injunction restraining the 5th defendant from alienating the suit schedule property. Both the applications are dismissed by the court below by the common order dated 29.11.2014. It is this order that is under challenge in these two appeals by the plaintiff-appellant herein.

The suit schedule property is Sy. No. 60 measuring 1 acre 27 1/2 guntas situated at Ittangur village, Sarjapura Hobli, Anekal Taluk, Bengaluru Urban District. Plaintiff has instituted the suit seeking partition of his 1/5th share in the suit property and for a declaration that the registered sale deed dated 25.02.2013 executed by defendants 1 to 4 in favour of 5th defendant - 5th respondent herein (purchaser) was not binding on the plaintiff.

The case of the plaintiff has been that Smt. Madakka - mother of the 1st defendant was the owner of the property having purchased the same during 1982. She being a widow had put the property for division among her children and a palupatti was executed on 10.10.1993. As per the said palupatti, the suit property fell to the share of Narayanappa and therefore, Narayanappa could not have sold the property along with his other sons and daughter excluding the plaintiff in favour of the 5th defendant during the year 2013. Thus, plaintiff sought for partition of his 1/5th share and for a declaration that the sale deed was not binding on him.

Along with the suit, plaintiff filed two applications in I.A. No. 1 and 2 seeking temporary injunction against 5th defendant from changing the nature of the property and from alienating the suit property.

The 5th defendant contested the suit contending inter alia that the suit property was not the ancestral property and that plaintiff had not made out any prima facie case for grant of injunction.

Both the applications were heard together and by a common order under challenge, they have been rejected by the court below recording a finding that admittedly the suit property originally belonged to Madakka - mother of the 1st defendant, who had purchased the same under the sale deed dated 15.09.1982. Therefore, the property was not the ancestral property and under the provisions of Hindu Law property acquired by a female Hindu would not be the ancestral property of the joint family. Thus, it has held that no prima facie case had been made out by the plaintiff for grant of temporary injunction. The court below has further observed that 5th defendant purchased the suit property under a registered sale deed dated 25.02.2013 and had become its owner hence, question of granting injunction to prevent him from alienating or from changing the nature of the property did not arise.

Learned Counsel for the appellant contends that the property was purchased by Madakka from out of the joint family funds and therefore, it was the joint family property in her hands, particularly because she being a widow had no source of income of her own to purchase the property.

There is absolutely no pleading with regard to the above contention, and therefore, as rightly contended by the learned Senior Counsel Mr. Uday Holla appearing for the 5th respondent, such a contention cannot be permitted to be urged for the first time before this Court in this appeal. As rightly held by the court below, if the property had been purchased by Madakka, even if she had agreed for effecting partition and allotment of the same in favour of the 1st defendant, plaintiff will not get any interest or right by birth, as it will not be ancestral property in the hands of the 1st defendant. In such circumstances, I do not find any illegality in the order passed by the court below.

Hence, these two appeal being devoid of merits, are dismissed.