IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHRAWAD DATED THIS THE 02ND DAY OF NOVEMBER, 2010 BEFORE HON’BLE MR. JUSTICE ARAVIND KUMAR M.F.A. No.22508/2009 (CPC) C/W. M.F.A. No.22509/2009 (CPC) M.F.A. No.22510/2009 (CPC) Ce C*c%c° BETWEEN: I. SRI.SIDDAPPA S/0 TIPPANNA BISAGAL j\2CI AGE:29 YRS. OCC:AGRICULTURE R/O GAMANAGATU, TQ:HUBLI 2. SRI.KARABASAPPA 5/0 TIPANNA BISAGAL AGE:27 YRS, OCC:AGRICULTURE, R/O GAMANAGAYFI, TQ: HUBLI 3. SRI.IRANNA S/O TIPANNA BISAGAL AGE:25 YRS OCC:AGRICULTURE, R/O GAMANAGATh, TQ: HUBLI 4. SAROJAVVA W/O BHARAMAPPA YAPPERI AGE:37 YRSOCC:HOUSE WIFE, R/O DAMBAL TQ: GADAG. 5. SMT. GIRIJAVVA W/O SATYAPPA NILGURI AGE:35 YRS, OCC:HOUSEWIFE. R/O SHIBARAGATFI TQ : SHIGGAON 6. SRI. MALLIKARJUNA 5/0 MAHADEVAPPA BISAGAL AGE:23 YRS OCC:AGRJCULTURE. R/O GAMANAGATI’1 TQ:HUBLI 7. SRI.YELLAPPA S/O MAHADEVAPPA BISAGAL AGE:21 YRS, 0CC AGRICULTURE, R/ 0 GAMANAGATI] TQ: HUBLI S. SUVARNEVA D/O MAHADEVAPPA BISAGAL AGE:20 YRS OCC:AGRICULTURE, R/O GAMANAGAYI1 TQ: HUBLI APPELLANTS (BY SRI G GANGIREDDY V SRIVAREDDY AND GLRURAJ N.BADIGAR.AD VS. AND: 1. SRI. TIPPANNA Sb SIDDAPPA BISAGAL AGE:77 YRS. OCC:AGRICULTURE R/O GAMANAGATFI, TQ:HUBLI 2. MAHADEVAPPAS/OSIDDAPPABISAGAL AGE:57 YRS, OCCAGRICULTURE R/O GAMANAGAYJ’I, TQ:HUBLI 3. EXECUTIVE ENGINEER KARNATAKA HOUSING BOARD. DIVHUBLI, HUBLI RESPONDENTS (BY SRI.CHANDRASHEKAR B. PATIL ADV. FOR R.3 R. 1 AND R.2 SERVED) THIS MFA IS FILED U/O 43 R 1(r) OF CPC, AGAINST THE ORDER DATED: 17/4/2009 PASSED IN OS NO.162/08 ON THE FILE OF THE II ADDL. CIVIL JUDGE (SD), HUBLI, DISMISSING THE APPLICATION FILED U/O 39 R 1 & 2 OF CPC AND ALLOWING THE APPLICATIONS FILED U/O 39 R 4 CPC. MFA 22509/2010(CPC) BETWEEN I. SMT KAREVVA W/O HANUMANTAPPA WALIKAR AGE:41 YRS. OCC:AGRICULTURE R/O GAMANAGA’rT] TQ:HUBLI, DIST: DHARWAD. 2. BASAVVA W/O SHIVAPPA WALIKAR AGE:39 YRS, OCC:AGRICULTURE RIO GAMANAGAT1] TQ:HUBLI, DIST: DHARWAD, 3. SMT. F’AKIRAVVA W/O BASAPPA KALASANNANAVAR AGE:37 YRS C)CC:AGRICUUI’URE R/O (iAMANAGATII TQ:HUBLI. DIST: DHARWAD. 4. SMT. YALLAVVA W/O KALLAPPA AGE:35 YRS OCC:AGRJCULTtiRE.R/O GAMANAGM1’I TQ:HUBLI, DIST: DHARWAD. 5. MAHADEVI D/O KAREPPA IDHLI AGE:32 YRS. OCC:AGRICULTURE,R/O GAMANAGATfl TQ:HUBLJ, DIST: DHARWAD. 6. GULAPPA 5/0 KAREPPA TDHLI AGE:30 YRS OCC:AGRICULTURE,R/O GAMANAGATh TQ:HUBLI. DIST: DHARWAD. 7. KARABASAPPA Sb KAREPPA IDHLI AGE:27 YRS OCC:AGRICULTURE,R/O GAMANAGATh TQ:HUBLI, D1ST: DHARWAD. 8. HANUMANTHAPPA Sb KAREPPA IDHLI AGE:25 YRS OCC:AGRICULTURE,R/O GAMANAGATh TQ:HUBLI, DIST: DHARWAD. 9. GULAPPA Sb MALAPPA IDHLI AGE:30 YRS OCC:AGRTCULTURE. R/O GAMANAGATh TQ:HUBLI, DIST: DHARWAD. 10. SMT. KAREVVA D/O MALLAPPA IDHLI AGE:34 YRS OCC:AGRICULTURE, R/O GAMANAGATh TQ:HUBLJ, DIST: DHARWAD. 11. FAKJRAVVA D/0 BASAPPA I DHLI AGE:32 YRS OCC:AGRICULTURE, R/O GAMANAGATh TQ:HUBLI. DIST: DHARWAD. APPELLANTS (BY SRI. G GANGIREDDY & V SHIVAREDDY ADVS.) AND: I. SRI.KAREPPA S/C) KENCHAPPA II)HLI AGE: 78 YRS. OCC:AGRICULTURE .4; R/O GAMANAGATFI. TQ:HUBLI. 2. MALLAPPA 5/0 KENCHAPA IDHLI AGE:65 YRS OCC:AGRICULTURE. R/O GAMANAGAYFI TQ:HUBLI. 3. EXECUTIVE ENGINEER KARNATAKA HOUSING BOARD, DIVHUBLI, HUBLI. RESPONDENTS (BY SRI.CHANDRASHEKAR B. PATIL. ADV FOR R.3) R.1 -SERVED R.2-UNCLAIMED) THIS MFA IS FILED U/O 43 R 1(r) OF CPC. AGAINST THE ORDER DATED: 17/4/2009 PASSED IN 05 NO.171/08 ON THE FILE OF THE II ADDL. CIVIL JUDGE (SD), HUBLI, DISMISSING THE APPLICATION FILED U/O 39 R 1 & 2 OF CPC AND ALLOWING THE APPLICATIONS FILED U/O 39 R 4 CPC. MFA 22510/2010 BETWEEN: 1. SMT.AMIRBHI W/O HAJARESAB DARGADA AGE:40 YRS, OCC:HOUSEWIFE R/O AMARGOL, TQ:HUBLI DIST: DHARWAD. 2. SHABHIRABHI W/O HUSSENSAB KHADARNAYAK AGE:38 YRS, OCC:HOUSEWIFE R/O GUMMAGOL, TQ:NAVALGUND R/A GAMANGAYFI, HUBLI. APPELLANTS (BY SRI. G GANGIREDDY & V SHIVAREDDY. ADV.) AND: I. HASIMSAB S/O ABDULSAB SAVANTANAVAR AGE:70 YRS, OCC:AGRJCULTURE R/O GAMANAGAYfl, TQ:FIUBLI 2. MUKTUM HUSSEN Sb ABDULSAB SAVANThNAVAR AGE: 58 YRS. OCC:AGRICULTURE R/O GAMANAGATH. TQ:HUBLI 3. IMAM HUSSEN 5/0 ABDULSAB SAVANTANNAVAR AGE:68 YRS. OCCAGRICULTURE .S; R/O GAMANAGAYFI, TQ:HUBLI 4. KHADARASAI3 S/O AI3DULSAB SAVANTANNAVAR AGE:65 YRS. R/O GAMANAGAYFI, TQ:HUBLI 5. RAJESAB Sb ABDULSAB SAVANTANNAVAR AGE:48 YRS, OCC:AGRICULT(JRE R/O GAMANAGAYI’I, TQ:HUBLI 6. HUSENBHI W/O HAJARATSAB SAVANTANAVAR AGE:55 YRS. OCC:AGRICULTURE RIO GAMANAGATFI. TQ:HUBLI 7. KARIMASAB S/0 ABDULSAB SAVANTANNAVAR AGE:60 YRS, OCC:AGRICULTURE RIO GAMANAGATFI, TQ:HUBLI 8. ALLABAKSHA Sb ABDULSAB SAVANTANAVAR AGE:55 YRS, OCC:AGRICULTURE R/O GAMANAGAYPI, TQ:HUBLI 9. EXECUTIVE ENGINEER KARNATAKA HOUSING BOARD, DIV-HUBLI,. HUBLI RESPONDENTS (By Sri.CHANDRASHEKAR B. PATTL ADV. FOR R.9 R.1 TO R.8-SERVED) THIS MFA IS FILED U/O 43 R 1(r) OF CPC, AGAINST THE ORDER DATED: 17/4/2009 PASSED IN OS NO.164/08 ON THE FILE OF THE II ADDL. CIVIL JUDGE (SD), HUBLI, DISMISSING THE APPLICATION FILED U/O 39 R 1 & 2 OF CPC AND ALLOWING THE APPLICATIONS FILED U/O 39 R 4 CPC. THESE APPEALS COMING ON FOR FURTHER HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT These appeals are filed by the unsuccessful plaintiffs questioning the correctness and legality of the order passed in O.S.Nos.162/2008, 164/2008 and 171/2008 by the Civil Judge(Sr.Dn.), Flubli. :6: 2. The above referred three suits came to be instituted seeking relief of partition and separate possession and consequently to declare the sale deeds executed on 22.09.2006, 4.11.2006, 6.07.2006, 19.07.2006, 15.07.2006 in favour of Karnataka Housing Board as illegal, void-ab intio and null and void and not binding on the plaintiffs and their share. An application for order of temporary injunction to restrain the alleged possession of the plaintiffs also caine to be filed inter alia contending that plaintiffs are in possession of suit schedule property to the extent of their share. The said applications came to be resisted by the defendant No.3 by Karnataka Housing Board(herein after referred to as “Board” for the sake of brevity) by filing detailed statement of objections. The written statement also came to be filed controverting plaint averments. 3. It is contended by appellants that trial Court had granted an exparte interim order of status-quo directing to preserve existing things as they are till appearance of defendants. Appellants in these appeals have produced Annexure-G to demonstrate that an order of status-quo came to be passed by the trial court and a perusal of the said order would reflect that it had been passed in O.S.No.205/2008 and it has no relevance to these appeals, which was also fairly :7: admitted to be so by the learned counsel for the appellants during the course of arguments. 4. The said application for temporary injunction came to be resisted by the contesting defendant namely Karnataka Housing Board and on considering the said objections as also documents produced by the appellants the trial court by order dated 8.6.2009 dismissed the applications for injunction. It is these orders passed in the suits referred to above, which has been questioned by the plaintiffs/appellants in these appeals. Along with the appeal an application for production of additional evidence under Order 41 Rule 27 has been filed by the appellants. The said application is also opposed by the learned advocate for Housing Board by filing detailed statement of objections. 5. Heard the learned advocates appearing for parties. 6. Sri.Gangi Reddy, learned advocate appearing on behalf of appellants would contend that order passed by the trial Court is without application of mind and averments made in the plaint has not been examined in its totality and thus it has resulted in great prejudice to the appellants. He would elaborate his submissions by contending that in MFA Nos.22508/2009 and 22509/2009 appellants have produced additional documents along with an application by way of additional evidence by contending that Land measuring 13A 7 Guntas in :8: Sy.No.232 of Gamanagatti Village was a tenanted land and Land Tribunal by order dated 29.11.1975 had conferred occupancy rights in favour of Yallappa Tippanna Bisagal and his 2 brothers viz., Siddappa Bisagal and Gangappa Bisagal and only Tippanna Bisagal and Mahadevappa Bisagal (two sons of Siddappa Bisagal) had executed sale-deeds in favour of Karnataka Housing Board without other sons joining in execution of said sale-deed and these documents go to show that said property is a Joint family property and as such they are entitled for partition and separate possession. It is also contended that plaintiff’s having not joined in execution of sale deed it would not confer the Board with absolute title and to establish the fact that property in question was originally allotted by the land Tribunal in favour of three brothers, Orders passed by the land Tribunal dated 25.11.1975 alongwith further order dated 6.10.2006 is produced along with application for additional evidence which they pray for being received on record and as such it is contended that trial Court was not justified in rejecting the application for grant of temporary injunction. 7. Sri.Gangi Reddy, would also contend that in MFA No. 22509/2009 the property originally belonged to Sri.Kenchappa, who died intestate living behind his 3 sons i.e. Sri.Kariyappa, Sri.Mallapa and Sri.Basappa to succeed to the estate and as such the execution of sale deed by Sriyuths :9: Kariyappa and Mallappa and excluding legal heirs of Basappa is not binding on the legal heirs of the Basappa and as such he submits that order of the trial Court suffers from patent error. It is also contended that plaintiffs Nos. 1 to 8 are the children of Kariyappa and plaintiff Nos. 9 and 10 are the sons of Malappa and plaintiff No.11 is the daughter of Basappa and they have been excluded in the sale deed who according to appellants have also right since it is a joint family property and they having not joined in execution of sale-deed it would not be binding on them and thus alleged sale-deed would not entitle the defendant Board to deal with the property as their exclusive property. 8. In MFA 22510/2010 it is contended properties described in the suit (O.S.No. 164/2008) originally belonged to one Sri.Abdulsab Doddakarimsab Savannanavar who is said to have died on 29.5.1968 and was survived by 7 sons and 3 daughters and submits that only sons have executed the sale deed excluding the daughters and they being governed by Mohammden Law they would also be entitled to their respective shares and in support of his submission he contends that Revenue records produced would show that properties originally belonged to Abdulsab Doddakarimsab Savannanavar and as such it is contend that the order passed by the trial Court is 10 erroneous and is liable to be set aside by receiving the additional evidence on record. In support of his submissions he has relied upon following judgments: (i) M.V.S. Manikya Rao V/s. M.Narasimhaswami and others reported in AIR 1966 SC 470 (ii) Ramdas V/s. Sitabai & others reported in AIR 2009 SC 2735 9. Per contra, Sri.C.B.Patil, learned advocate appearing for the respondent-Board would support the order passed by the trial Court and contends that a scheme came to be formulated for forming a residential layout whereunder Board in its wisdom thought fit not to undergo the procedure of acquiring the land and desired to purchase these lands amongst others by paying the market value and in order to provide shelter to the shelterless public on “no profit no loss” basis and in furtherance of its aim to provide housing to the houseless. He contends that in furtherance of this scheme these lands came to be purchased by Board for valuable consideration and prior to entering into sale deed, several rounds of discussion were held with landlord/owners of the property and the members who have executed the sale deeds have not only participated and deliberated in the said meetings and discussions but also gave their consent for executing the sale deeds and in furtherance of 4.z 11 such discussion and meetings and after obtaining the necessary consent and following the necessary procedure sale deeds came to be executed and possession delivered and as such it is contended that plaintiffs have not made out any prirna-facie case for grant of temporary injunction and the order of the trial court rejecting the prayer for temporary injunction according to Sri.C.B.Patil does not call for any interference at the hands of the Appellate Court. 10. He would also hasten to add that applications filed are without merit and it was found by the board that revenue entries made in the records of rights were standing in the names of present vendors and after ascertaining the title to the property in question the Board has purchased the properties and all the plaintiffs who have now filed the suit were well aware of the sale deed and as such there is no prima—facie case in their favour. He would also submit that record of the rights now produced alongwith application for additional evidence would depict that plaintiffs are not in possession of the suit schedule property. He would also elaborate his submissions by contending that some of the plaintiffs who are the grand daughters/daughters are married and living elsewhere in their matrimonial home and this itself clearly go to show that they are not in possession of the suit schedule property. He would also contend that board has 12 undertaken and started developmental works on the suit schedule property to form residential layout and any order of injunction, if granted at this stage would not only hamper the progress of the developmental activity hut it would lead to irreparable loss to the defendantboard and there is no balance of convenience whatsoever in favour of plaintiffs. As such, he seeks for dismissal of the applications for additional evidence and also prays for dismissal of the appeals. 11. Sri. Patil in support of his submission as relied upon following two judgments: (I) Kashi Math Samsthan & Anr. Vs. Srimad Raghavendra Thirtha Swamy Anr. reported in AIR 2010 Sc 296 (ii) Sky Line Education Institution (Pvt.) Ltd. V/s. S.L.Vaswani & Anr. Reported in AIR 2010 Sc 3221 12. Learned counsel for the respondent/board has also filed applications for additional evidence and seeks for production of certain documents, namely record of rights in all the three appeals by Misc.Cvl.No.108377/2010, 108378/2010 and 108699/2010. The said applications have not been opposed by the learned counsel appearing for the appellants. 13. The original records produced by the Board have also been perused by this Court. 13 14. Having heard the learned advocates appearing for the parties, following points arise for my consideration: (a) Whether the Applications for additional evidence filed under Order 41 Rule 27 by the appellants and 31a respondent deserves to be allowed or dismissed? (b) In the event of they being allowed whether the additional documents are required to be considered by this Court in these appeals or the matter is required to be remanded to the trial court for consideration of the same? (c) Whether the plaintiffs/appellants would be entitled for an order of temporary injunction till the disposal of the suit, as prayed for? (d) What order? BRIEF FACTS OF THE CASE: 15. 3rd Respondent/Board have contended that it is a duly constituted Board engaged in providing shelter to the shelterless persons and works on “no profit no loss” basis and its aims are to provide houses to the public and in furtherance of its object it would acquire the land by due process of law. It is contended by the Board that suit schedule properties were duly purchased from lawful owners for valid consideration and registered sale deeds came to he executed by the title holders. It is also contended that Board has taken free consent of the owners and has paid consideration as per market value arid after being 14 delivered with possession has commenced developmental activities in the property purchased by it. 16. Plaintiffs claiming to be the legal heirs of the original owners or grantees of the suit schedule land have contended before the trial court that they have right, title and interest over the suit schedule property and they are seeking partition of the suit schedule property. It is also contended by them that they have not joined in execution of sale-deed in favour of Board and as such it is not binding on them. On examination of these rival contentions, trial court has formulated points for its consideration and has negatived the claim of the plaintiffs. The trial court on examination of the record of rights produced by the plaintiffs has come to a conclusion that it does not disclose the names of the plaintiffs either in owners column or in cultivators column and as such, it has held that plaintiff has failed to prove prima facie case and consequently, has held that there is no balance of connivance in favour of the plaintiff and rejected their prayer for grant of temporary injunction. 17. To establish that such schedule properties are joint family properties they have produced documents by way of additional evidence. The documents now produced by the appellants by way of additional evidence are (i) copy of the order of the Land Tribunal dated 06. i 0.2006 (ii) copy of the document 15 showing survey numbers changed as block numbers (iii) RTC Extracts (iv) Mutation register extracts and (v) photographs. 18. Sri Gangiredy, learned counsel appearing for the appellant in support of his submission that in the event of a sale of Joint family property without coparceners joining in execution of sale-deed would be a nullity and as such order of trial Court is a nullity has placed and relied on the following judgments of the Hon’ble Apex Court: (1) AIR 1966 SC 470 (1) M.V.S. Mardkya Rao V/s. M.Narasimhaswami and others 8) It was, however, said that the order for delivery of possession made in the present case was a nullity because Sivayya and his transferee who had purchased an undivided share in coparcenery property were not entitled to any possession at all. We agree that the order cannot be supported in law but we do not see that it was for this reason a nullity. It is not a case where the order was without jurisdiction. It was a case where the learned Judge making the order had, while acting within his jurisdiction, gone wrong in law. Such an order has full effect if it is not set aside, as it was not in this case. Yelumalai Chetti V. Srinivasa Chetti, ILR 29 Mad 294, to which we were referred, does not support 16 the contention that the order was a nullity. There a purchaser of an undivided share in coparcenery property at an execution sale had applied for possession under S. 318 of the Code of Civil Procedure of 1882 which corresponds to 0.21, R,95 of the present Code. That application was dismissed as barred by limitation. Later, the purchaser who had subsequently acquired the interest of the other coparceners in the property under a private sale, filed a suit for possession of the whole. It was contended that the suit was barred under S.244 of the old Code (-S.47 of the present Code) as the purchaser could only proceed by way of execution. In dealing with that contention it was said that though the purchaser of an undivided share in coparcenery property was only entitled to ask for a partition, it was not competent to a Court on a mere application for execution by a purchaser of such a share at a Court sale, to order a partition and, therefore, the dismissal of the application under S. 318 of the old Code had no effect by way of resjudicata on the second suit for possession. This case said nothing about the legality of an order under 0.21. Rr.35, 95 or 96.” (ii) AIR 2009 Sc 2735 Ramclas V/s. Sitabai &, 0/hers “19. Therefore, what the appellant has claimed 17 is only half share of the said property. The said issue has been considered at length by the High Court in its impugned judgment. The High Court has recorded the statement made by the counsel appearing for the defendant No.3- Ramdass (appellant herein) that the action of the Additional District Judge in declaring that the said sale deed as null and void was not proper to the extent of the shares of plaintiff-Sitabai in the Gat No.19 area admeasuring 2.56H of Mouza Padoli. Therefore, the fact that the plaintiff-Sitabai was entitled to her half share in the aforesaid property is an admitted position and on that basis the consent decree was passed. Even otherwise, we are of the considered opinion that the appellant herein having purchased only undivided share in the aforesaid property could not have purchased, owned and claimed for more than half share in the said property nor the appellant could have claimed possession in respect of the entire property. The appellant herein has further claimed relief on the ground of equity. However, we do not find any reason to hold in favour of the appellant even on the ground of equity as the appellant herein himself is responsible for his act in purchasing undivided share in a part of the suit property without the knowledge and consent of the co-sharer. Besides, indisputably and as held by the trial Court, the land in Gat No.19 is extremely valuable and, therefore, the question of equity does not arise as we would be S .1fl. • aa • -‘ doing injustice to one having title and ownership if we accept the prayer of the appellant. 19. The dicta laid down In these two decisions points out that purchaser cannot have a better title than what his vendors had possessed. In regard to the principles enunciated In these two decisions, there cannot be any dispute. However, it has to be examined In the suit as to whether plaintiff possessed any such right at all for and it cannot be examined on mere affidavits. 20. The documents now sought to be produced by way of additional evidence, according to Sri Gangireddy would clearly establish plaintiff’s are having undMded right, title interest over the property In question. As against this claim the defendant board has categorically contended that revenue records does not depict the names of the plaintiffs. In view of these two contentions the scope of Interference by an appellate court to be exercised with regard to the dlscretionaiy order of trial Court exercised by the trial court has been explained by the Hon’ble apex court In the following cases: (I) AIR 2010 SC 296 Kashi Math Samsthan & Ant. Vs. Srtmad Raghavendra Thirtha Swamy Ant. “13) It is well settled that in order to obtain an 19 order of injunction the party who seeks for grant of such injunction has to prove that he has made out a prima facie case to go for trial, the balance of convenience is also in his favour and he will suffer irreparable loss and injury if injunction is not granted. But it is equally well settled that when a party fails to prove prima facie case to go for trial, question of considering the balance of convenience or irreparable loss and injury to the party concerned would not be material at all, that is to say, if that party fails to prove prima facie case to go for trial, it is not open to the Court to grant injunction in his favour even if, he has made out a case of balance of convenience being in his favour and would suffer irreparable loss and injury if no injunction order is granted. Therefore, keeping this principle in mind, let us now see, whether the appellant has been able to prove prima facie case to get an order of injunction during the pendency of the two appeals in the High Court. In para 21 of the Judgment of the trial Court, it is found: the words ‘certain and some’ quoted above and when we are still in a position to carry on with the traditional duties’, prima fade show that the I respondent has not surrendered all his rights, privilege and duties and that the 2 nd petitioner has not been made as full fledged Mathadhipathi. As per the custom prevailing since continuous, vatu initiated into Sanyasa an named as successor will be come Mathadhipathi after the Mathadhipathi passes away.” :20: From the aforesaid finding of the trial Court, it is clear that the respondent No.1 had not abrogated all his powers as Mathadhipathi in favour of the appellant No.2 and he was only entrusted with certain powers. In para 22 of the Judgment of the trial Court, it was observed as follows: “The following circumstances also go to support the version of the 1 st respondent. The 2 petitioner himself has addressed a letter dated 4/11/99