2004 Supreme(Kar) 441

Karnataka High Court
Fakirasab - Appellant
Versus
Syedusab - Respondent
Decided On : 07-11-04
M.F.A. : 4129 of 04

The court emphasized the need to consider the right and need of respective parties while granting temporary injunction and to protect and preserve the schedule property to prevent irreparable and uncompensatable loss to the plaintiff if successful in the suit.

Headnote:

joint family - Land Reforms Act - Sec. 2 (17) - Sec. 2 (17) of the Land Reforms Act defines joint family and the court held that the suit of the plaintiff is for 1/3rd share in the compensation awarded towards the acquisition of the suit schedule property, which according to the plaintiff, belongs to the plaintiff and the defendants. According to the plaintiff, the plaintiff represents a group of persons who are entitled to succeed to the property of Imam Sab. In view of the decision of the Honble Supreme Court in 1995 (5) SCC 612 referred to above, it is clear that even though the parties are governed by Muslim Law. When the brothers and sisters as co-heirs are claiming shares in the properties on the basis of inheritance, the claim is sustainable and though the claimants may not be members of a joint family as in Hindu law, they would be a group of people and eldest of them can be regarded as their representative. The definition of joint family under the Karnataka Land Reforms Act, also shows that under Section 2 (17), joint family means in the case of persons governed by Hindu Law, an undivided Hindu family, and in case of other persons, a group or unit the members of which are by custom joint in estate or residence. Therefore, at this stage, having regard to the averments made in the plaint that the plaintiff represents a group of persons i. e. , co-heirs, who have succeeded to the property of Imam Sab, it cannot be said that the suit is vexatious or perverse. The trial Court was not at all justified in proceeding on the basis that the provisions of Hindu law pertaining to jointness and presumption therein would not arise. Further, it is also clear from the material on record that the prayer that is made in the application for Temporary Injunction is to restrain the defendants 1 and 2 from withdrawing the amount that is deposited in Execution petition NO. 226/2002. The said amount represents the compensation in respect of the schedule property, which has been acquired. The material on record clearly shows that the amount that is in deposit in Execution Petition No. 17/1999 shows that in respect of the same award, an amount of Rs. 37,02,580/- has been withdrawn by defendants 1 and 2 on 06. 3. 1999 and further, the proceedings in LAC Misc. Application No. 90/98 would show that in respect of the acquisition of the schedule property, an amount of Rs. 4,57,662/- has been withdrawn by defendants 1 and 2 on 16. 12. 2000, as is clear from the order sheets in the respective petitions and the amount that is now lying in deposit in execution petition No. 226/2002 amounting to Rs. 29,00,554/- is only the balance amount that is payable under the award in view of the enhancement of compensation. It is well settled that while considering an application for grant of temporary injunction, the right and need of respective parties should be considered and the schedule property should also be protected and preserved so that if ultimately, the plaintiff who is the initiator of the suit, succeeds in the suit, he would not be put to irreparable and uncompensatable loss. The object is to keep the property in status quo so that it would be available to the plaintiff if he ultimately succeeds in the suit. It is clear from a perusal of the order passed by the trial court itself that the trial Court also felt that it is necessary to protect the interest of the plaintiff by ordering that in respect of the amount that is available in the execution petition No. 226/2002, in respect of 1/3rd of the amount i. e. , approximately about Rs. 10,00,000/-, defendants 1 and 2 should be directed to furnish bank guarantee. However, the trial Court failed to note that the amount that is now available in Execution petition No. 226/2002 is not the only amount that is awarded as compensation for acquisition of the suit schedule property as it is clear from the valuation made in the suit itself that the suit is valued at Rs. 70,00,000/- which is calculated on the basis of the proceedings in the order sheets in the execution petition No. 17/99 and LAC Misc. Application No. 90/98, certified copies of which are produced by the learned counsel appearing for the appellant. Further, it is clear that subsequent to passing of the order, defendants 3 and 4 had also filed an application for setting aside the exparte order passed against them and they have filed written statement claiming 1/3rd share in the compensation awarded under the said L. A. C. No. 305/1997 and they have also filed an application under Order 39 Rules 1 and 2 CPC. , to restrain defendants 1 and 2 from withdrawing the amount. Be that as it may, it is clear from the above said material on record that the order passed by the trial Court holding that no prima facie case is made out for grant of injunction is perverse and arbitrary as it is not based upon the settled principles regarding the grant of temporary injunction and the material on record. It is also clear from the order passed by the Trial Court that the trial Court ahs proceeded on the basis that the whole amount of compensation that is awarded in L. A. C. No. 305/1997 is only Rs. 29,00,554/-, which is available in Execution petition No. 226/2002. The trial court has overlooked the fact the at the prayer of the plaintiff in the suit is for 1/3rd share in the entire compensation amount awarded in L. A. C. No. 305/1997 and the suit has been valued at Rs. 70,00,000/- and the said application for temporary injunction ought to have been considered in the light of the above said facts. It is clear that the amount that is already withdrawn by the defendants 1 and 2 out of the compensation awarded in respect of the schedule property i. e. , Rs. 37,02,580/- on 06. 03. 199 in Execution Petition No. 17/99 and Rs. 4,57,662/- on 16. 12. 2000 in LAC Misc. Appln. No. 90/98, would come to Rs. 41,60,242/- and the amount that is in deposit in Execution Petition No. 226/2002 amounting to Rs. 24,32,992/- would be approximately 1/3rd of the amount of compensation i. e. , Rs. 70,00,000/- awarded by the Land Acquisition Officer. Further, having regard to the fact that if the plaintiff ultimately succeeds in the suit, the plaintiff would be entitled to 1/3rd share and defendants 1 and 2 would be entitled to 1/3rd share and defendants 3 and 4 would be entitled to 1/3rd share in the compensation that is awarded in L. A. C. No. 305/1997, if they are able to prove their case during trial. There is already a direction issued by this Court in M. F. A No. 1128/2004 directing the trial Court to dispose of the suit before December 2004. Under the circumstances, it is clear form the material on record that the plaintiffs have made out a prima facie case for granting of injunction as prayed for and balance of convenience is also in favour of the plaintiff and the interest of the parties can be safeguarded by directing that the amount that is now in deposit in execution petition No. 226/2002 shall be deposited in the nationalized Bank in a short term deposit so that the amount would earn interest, which would be available for the benefit of the successful party in the suit. Accordingly, I answer the points for determination and pass the following order:- the appeal is allowed. The order dated 16. 04. 2004 passed by the Prl. Civil Judge (Sr. Dn.) Jamkhandi, rejecting I. A. I in O. S. No. 108/2003, is set aside and I. A. I is allowed and defendants 1 and 2 are restrained from withdrawing the amount deposited in Execution Petition No. 226/2002, shall be deposited by the trial court in a nationalized bank in a short term deposit and the same with accrued interest shall be made available to the successful party in the suit. It is also hoped that the trial Court would dispose of the suit within the end of December 2004 as per the direction issued by this Court in M. F. A. No. 1128/2004 dated 19. 03. 2004, if the parties co-operate in the disposal of the suit.

Fact of the Case:

The plaintiff filed a suit for his alleged 1/3rd share in a property contending that it was ancestral property and the plaintiff is entitled to 1/3rd share in the compensation deposited by the Land Acquisition Officer. An application was filed seeking an order of temporary injunction to restrain defendant Nos. 1 and 2 from receiving compensation amount.

Finding of the Court:

The Trial Court held that the plaintiff failed to make out a prima facie case for grant of temporary injunction and ordered defendant Nos. 1 and 2 to execute indemnity bond with bank guarantee for Rs. 10,00,000/- if they want to withdraw the amount.

Issues: 1. Whether the impugned order passed by the trial Court is capricious and arbitrary and calls for interference in this appeal? 2. What order?

Ratio Decidendi: The court found that the plaintiff made out a prima facie case for granting of injunction as prayed for and balance of convenience is also in favour of the plaintiff. The trial Court's order was held to be arbitrary and not based upon the settled principles regarding the grant of temporary injunction and the material on record.

Final Decision: The appeal was allowed, the order of the Trial Court was set aside, and defendants 1 and 2 were restrained from withdrawing the amount deposited in Execution Petition No. 226/2002. The amount was to be deposited in a nationalized bank in a short term deposit and the same with accrued interest shall be made available to the successful party in the suit. The trial Court was directed to dispose of the suit within the end of December 2004 as per the direction issued by the Court in M. F. A. No. 1128/2004 dated 19. 03. 2004, if the parties co-operate in the disposal of the suit.