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2008 (4) TMI 770 - SUPREME COURT

2008 (4) TMI 770 - SUPREME COURT - 2008 AIR 2291, 2008 (7) SCR 264, 2008 (11) SCC 1, 2008 (8) SCALE 277 - Civil Appeal No. 3128-3129 of 2008 - Dated:- 30-4-2008 - S.B. Sinha And V.S. Sirpurkar JJ. JUDGMENT: 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 .....

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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 properties took place in the year 1924. One of the quest .....

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54, 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 .....

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hey 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 .....

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rty 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 b .....

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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 de .....

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ct 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 co .....

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rd 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 .....

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rious 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 .....

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ration 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 .....

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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 bei .....

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roperty 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 bee .....

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, therefore, these documents do not contain reference to the suit properties 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. .....

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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 19 .....

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enience 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 upo .....

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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 no .....

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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 [ .....

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