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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.