ORDER

The petitioner has assailed the order dated

12.02.2019 in M.A.No.20/2017 on the file of the III Additional District and Sessions Judge, Tumakuru produced at Annexure-O and the order dated 14.07.2017 produced at Annexure-L passed on I.A.No.6 in O.S.No.67/2014 on the file of the Senior Civil Judge, Kunigal.

2. The brief facts are as follows:

The petitioner is the plaintiff. The suit is for partition of 8 items of properties described in the schedule to plaint. Defendant No.1 is the father, defendant No.2 is the brother, defendants 3 and 4 are the sisters of the plaintiff, 5th defendant is the son of 3rd defendant. The plaintiff’s plea is that all the plaint schedule properties belong to the joint family of which one Rangappa, his grandfather was the manager. Rangappa had two sons namely, the first defendant and M.R.Thopegowda. On 22.06.1994, the two brothers divided the ancestral properties. The plaintiff’s case is that after 22.06.1994, he and defendants 1 and 2 purchased some properties from joint family nucleus. There is no division of all the properties. In July-2014, the first defendant suffered paralysis stroke. The allegation in particular is that the 3rd defendant made use of the sickness of 1st defendant and got executed from him a gift deed dated 20.11.2014 in the name of her son i.e., the 5th defendant.

3. The plaintiff applied for temporary injunction against 5th defendant to restrain him from interfering with his peaceful possession and enjoyment of suit properties.

4. The first defendant contended in his written statement that items 2, 3, 6, 7 and 8 were the joint family properties, and items 1, 4 and 5 were his self acquisition. He stated to have gifted 1.21 acres in Sy.No.21/2B of Mavinakatte village in favour of his grandson i.e., the 5th defendant. 5th defendant also asserted the gift made in his favour by the first defendant and transfer of its possession to him. Then the fifth defendant filed an application under Section 94(c) and (e) of CPC to restrain the plaintiff from interfering with his possession of the property gifted to him.

5. The trial court allowed the 5th defendant’s application under Section 94(c) and (e) of CPC and dismissed the plaintiff’s application for temporary injunction filed under Order XXXIX Rules 1 and 2 CPC. The appeal preferred by the plaintiff challenging the common order on the two applications was dismissed. Hence this writ petition.

6. If the orders of the trail court as also the appellate court are perused, it is found that both the courts have weighed the materials placed before them for the limited purpose of deciding the applications. Though the suit has been filed in respect of 8 items of property, the dispute actually revolves around item No.1 of the plaint schedule as it is the subject matter of gift.

7. The argument of Sri K.Ananda, learned counsel for the petitioner is that the execution of gift deed is doubtful and the first defendant had no right to execute a gift in respect of joint family property.

8. It is the prima-facie finding of the trial court that defendant No.1 cannot claim to be in possession. Referring to partition dated 22.06.1994, it observes that since in the partition deed dated 22.06.1994, item No.1 was not included, it might be the self acquisition of 1st defendant. The first defendant purchased item No.1 on 19.02.1972 and the partition was effected on 22.06.1994. If item No.1 property was purchased in the name of 1st defendant from joint family nucleus, certainly that property would have been included for partition. Rightly the courts have not given importance to the statement of Thopegowda that even the first item is the joint family property. Having found that the plaintiff has failed to make out a prima-facie case, the impugned orders came to be passed.

9. The discussions found in the judgment of the appellate court and order of the trial court clearly indicate application of mind. There is no perversity or arbitrariness in reaching conclusions.

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