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V. ANIL REDDY, REPRESENTED BY THE POWER OF ATTORNEY HOLDER B. BAVADEEP REDDY & ANOTHER V/S K. VENKATARAMANA REDDY (ALSO KNOWN AS K.V. REDDY) & OTHERS, decided on Thursday, May 25, 2017.
[ In the High Court of Karnataka, Miscellaneous First Appeal Nos. 1693 & 1909 of 2016. ] 25/05/2017
Judge(s) : B. VEERAPPA
Advocate(s) : Ananth Mandgi, Y.R. Sadashivareddy, Jayakumar. S. Patil, Senior Counsels, Amit Mandgi, S.R. Krishna Kumar, P. Ramprasad, Deshraj, C.V. Kiran, J.M. Rajanna Shetty, C.M. Nagabhushan, Sharath S. Gowda, Shankar S. Bhat, C.S. Hiremath, A.V. Nishanth, A.N. Radhakrishna, B.N. Suresh Babu, N.J. Kumar, K.S. Kalleshappa, Ganesh, C.S. Prasanna Kumar, S. Shivaswamy.
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    (Prayer: This MFA is filed under Order 43 Rule 1(R) of CPC against the Order Dated:17.02.2016 passed on IA No.1 and 2 in O.S No.66/2016 on the file of the III Additional City Civil and Sessions Judge Bengaluru City (CCH No.25) dismissing IAS filed under Order 39 Rule 1 and 2 of CPC.This MFA filed under Order 43 Rule 1(R) of CPC against the Order Dated:17.02.2016 passed on IA No.1 & 2 in O.S No.66/2016 on the file of the III Additional City Civil and Sessions Judge Bengaluru City dismissing both IAS filed u/O 39 Rule 1 & 2 of CPC.These MFAS having been heard and reserved for Judgment on 24.03.2017 coming on for Pronouncement of Judgment this day the Court delivered the following:)1. These Miscellaneous First Appeals are filed by the plaintiff and defendant No.2 against the order dated 17.02.2016 dismissing I.A. Nos.1 and 2 filed under Order XXXIX Rules 1 and 2 of Code of Civil Procedure in O.S.No.66/2016 by the III Additional City Civil and Sessions Judge Bengaluru restraining defendant Nos.6 to 13 18 19 20 to 24 from changing or altering the nature and character of suit schedule properties and from putting up any construction or alienating encumbering till the disposal of the suit.I Brief facts of the case2. It is the case of the plaintiff that he is the paternal grand son of one late Krishnappa Reddy who was the propositus of the Hindu undivided joint family consisting of himself and his children. Krishnappa Reddy had a wife Lakshmamma four sons and a daughter viz. K. Narayana Reddy Gowramma K. Lakshmaiah Reddy/defendant No.2 K. Srinivasa Reddy K. Venkataramana Reddy. Plaintiff is the son of defendant No.1. Defendant No.3 is the daughter of defendant No.1. Defendant Nos.4 and 5 are children of defendant No.2. Defendant No.6 is the wife of K.Narayana Reddy. Defendant Nos.7 to 9 are the children and Defendant No.10 is the wife of late K. Srinivasa Reddy. Defendant Nos.11 to 13 are the children. Defendant Nos.14 to 17 are the children of Gowramma. Defendant Nos.18 and 19 are the children of defendant No.11.3. It is further case of the plaintiff that the propositus Krishnappa Reddy expired in the year 1968. His wife Lakshmamma had predeceased. Plaintiffs and defendant Nos.1 to 19 are members of undivided Hindu joint family governed by Mithakshara law. There was no partition or division in the joint family even today and the joint family owned and possessed various movable and immovable properties which are morefully described in the schedule. It is further contended that Defendant Nos.6 7 9 have illegally high handedly entered into a registered development agreement on 09.12.2005 with Defendant No.20 in respect of Sy.No.68 item No.1 of suit schedule properties. Similarly item No.9 bearing No.45/1 was illegally high handedly used for running of petrol bunk as Bharat Petroleum Bunk who is also made as Defendant No.21 and further contended that K. Narayana Reddy the eldest son of late Krishnappa Reddy appears to have entered into various fraudulent transactions in respect of Sy.No.38 item No.8 of the suit schedule properties with Karnataka Electricity Board Employees Cooperative Society and Golden Gate Projects who are also impleaded as defendant Nos.22 to 24 etc. Therefore he sought for partition and separate possession of the suit schedule properties as prayed for.4. The contesting defendants filed the written statement and contended that the suit filed by the plaintiff for partition and separate possession is not maintainable. They have not disputed the fact that Krishnappa Reddy died in the year 1968 and his wife Lakshmamma predeceased Krishnappa Reddy and specifically contended that after the death of Krishnappa Reddy the father of the plaintiff i.e. K. Venkataramana Reddy also known as K.V. Reddy (defendant No.1) and his brother - defendant No.2 - K. Lakshmaiah Reddy (father of defendant Nos.4 and 5) had pursuant to oral partition taken place in the year 1971 which was reduced into memorandum of partition on 1.5.1982 each have taken half share in the joint family properties. Therefore the suit itself is not maintainable. It is denied that all the suit schedule properties are ancestral and joint family properties and the plaintiff has an undivided legitimate share right title and interest and possession by birth. According to the contesting defendants the properties held by Krishnappa Reddy after his death were divided and Sri K. Lakshmaiah Reddy (father of defendant Nos.4 and 5) and Venkataramana Reddy (father of the plaintiff and defendant No.3) have taken their shares. It is further denied that the plaintiff demanded any partition and in any event the plaintiff is not entitled to share in the properties fallen to the share of K. Srinivas Reddy (father of defendant No.13). The mutation of the records of the 13th defendant has been done in accordance with law. The 13th defendant further stated that there was an oral partition in the year 1971 which was acted upon and the same was reduced into writing by the panchayath parikath on 1.5.1982 as evidenced by the fact that Schedule-'B' and 'D' properties of the said document have been sold by defendant Nos.1 and 2 in the year 1971. Therefore it was not open for the plaintiff to question the genuineness of the said document dated 1.5.1982. Since there was a partition the plaintiff has no cause of action to file the present suit. The plaintiff not being in possession and enjoyment of the suit schedule properties the Court fee paid is insufficient. Therefore sought for dismissal of the suit.5. During pendency of the suit plaintiffs also filed I.A.No.1 and 2 under Order XXXIX Rule 1 and 2 of Code of Civil Procedure restraining the defendants 6 to 13 18 19 and 20 to 24 from changing or altering the nature and character of the suit property and putting up any kind of construction alienating or encumbering the suit schedule properties or any portion thereof till the disposal of suit reiterating the plaint averments. The said application was resisted by the contesting defendants 6 to 13 and 21 and contended that there was a partition in the joint family on 01.05.1982 the suit itself is not maintainable the question of granting injunction does not arise.6. Considering the application and objections filed by the parties to the lis the Trial Court by the impugned order dated 17.02.2016 dismissed I.A.Nos.1 and 2 made in O.S.No.66/. Hence the present appeals are filed.7. I have heard the learned counsel for the parties to the lis.II Rival contentions of the learned Counsel for the parties8. Sri Ananth Mandagi learned Senior Counsel for the plaintiff contended that when there is no dispute between the parties with regard to joint family properties and relationship the trial Court ought to have granted temporary injunction to protect the rights of the plaintiff in the suit properties in the event the plaintiff succeeds in the suit. He also contended that in W.P. No.1347/2016 and connected matters and this Court by the order dated 08.02.2016 directed the parties to continue to maintain status quo till disposal of the applications by the trial Court. The learned Counsel also pointed out that the observations made by the trial Court with regard to panchayath parikath dated 01.05.1982 and subsequent records show that the plaintiff has not produced the document to show that during the life time of alleged propositus Krishnappa Reddy he had something in his hand and it formed a basis for the joint family to go on acquiring the suit schedule items which is contrary to the written statement and partition deed as alleged. He further contended that the trial court recorded a finding that it is incumbent on the part of the plaintiff to show the existence of nucleus from the day of the alleged propositus Krishnappa Reddy to imagine the acquisition of properties out of such nucleus from the joint family of Narayana Reddy and his brothers when the same is admitted by the defendants in the written statement. Learned Senior Counsel further pointed out that the trial Court referring to the gift deed in respect of RTCs of item Nos. 6 and 7 has proceeded to hold that by virtue of Gift Deed as per partition deed dated 01.05.1982 between the parties the names of defendant Nos.18 and 19 are entered. He further contended that in para-5 of the written statement and objections filed by defendant No.12 admitted that after the death of Krishnappa Reddy oral partition took place in respect of the properties held by him in the year 1971 and amongst the family members which thereafter was reduced into a Memorandum of Partition on 01.05.1982. Under the oral partition the father of the plaintiff i.e. defendant No.1 was also allotted with a share. Likewise defendant No. 2 who is the father of defendant Nos. 4 and 5 was also allotted a share in the oral partition. Therefore the impugned order passed by the Trial Court rejecting the application for temporary injunction is contrary to the material on record. Therefore he sought to set-aside the impugned order passed by the Trial Court.9. Sri Ananth Mandgi learned Senior Counsel while replying to the arguments advanced by the learned counsel for the defendants contended that the plaintiff and defendants are grand children of the original propositus - Krishnappareddy. In paragraphs 9 and 10 of the plaint and in the present appeal at paragraph-25 it is clearly mentioned with regard to the alleged partition made between the defendants. The defendants 6 to 9 are the legal representatives of K. Narayan Reddy and Narayana Reddy was minor in the year 1947 when the item Nos.9 and 10 were purchased on 04.01.1947. In the objections or in the written statement the defendants never contended regarding the so called partition in the year 1971. The defendants 14 to 17; the legal representatives of Gowramma were placed exparte. The defendants 11 to 13 and 18 and 19 the legal representatives of Srinivas Reddy filed the written statement and objections contending that there was an oral partition in the year 1971 and same was reduced into writing in 1982. Though the plaintiff was born in the year 1971 he was not a signatory to the oral partition or 1982 partition reduced in writing. The learned counsel for defendants 2 4 and 5 supported the case of the plaintiff.10. Learned counsel for the plaintiff/appellant further contended that in the unregistered partition deed dated 01.05.1982 no recital is forthcoming with regard to the oral partition of 1971 said to be entered into between the defendants. Therefore it was a bogus document created for the purpose of filing of the written statement. He further contended that item Nos.2 and 3 of the suit properties were granted on 06.10.1975 in favour of Narayan Reddy as kartha of the family therefore the said items 2 and 3 were not available in the year 1971 when the alleged oral partition made between the parties. The defendant No.2 left the country in 1973 and came back to India on 11.01.1980 which is clear from the memo filed alongwith the passport dated 11.2.2016. The same was not considered by the trial Court while passing the impugned order. The contesting defendants have not disputed or filed objections disputing the contents of the memo filed before the court on 11.02.2016.11. Learned counsel further contended that in the present appeal this Court passed an order on 05.04.2016 and 20.04.2016 under which the matter was referred to the handwriting expert. The said orders passed by this Court with the consent of the learned counsel for the parties to the lis in the present appeal. Admittedly as on today none of the parties have challenged the said order passed by this Court. Therefore the order passed by this Court is binding on all the parties to the lis. He further contended that even if the report of the FSL is ignored the fact remains that defendant No.2 - Lakshmaiah Reddy was not in India as on 01.05.1982 as per the passport documents produced alongwith the memo dated 11.02.2016. Therefore it clearly indicates that the alleged partition deed dated 01.05.1982 is a created and forged document and cannot be relied upon.12. Learned Senior Counsel for the plaintiff further contended that the defendants have not disclosed any of the joint family properties which are not included in the written statement and most of the arguments advanced by the counsel for the defendants are without any pleadings. The arguments without pleadings and the documents cannot be considered and have to be ignored. He relied up on the following judgments of the Hon'ble Supreme Court and this Court.(i) K. VENKATASWAMI .vs. M. JAGANNADHA RAO reported in AIR 1999 SC 2171 with regard to grant of injunction and contended that even the Appellate Court can grant injunction holding that the same will not come in the way of the suit being decided on its own merits.(ii) S.K. LAKSHMINARASAPPA SINCE DECEASED BY HIS L.RS. .vs. SRI B. RUDRAIAH AND OTHERS reported in ILR 2012 Kar. 4129 to the effect that presence of the alienees is not necessary.(iii) PRIYANKA ESTATES INTERNATIONAL PRIVATE LIMITED AND OTHERS .vs. STATE OF ASSAM AND OTHERS reported in AIR 2010 SC 1030 contending that BBMP has granted occupancy certificate for about 525 flats on 26.11.2016 as stated by the learned counsel for defendants was not part of the pleadings and therefore the same cannot be considered.(iv) He also sought to rely on the Hon'ble Supreme Court judgment in the case of S. SATNAM SINGH AND OTHERS .vs. SURENDER KAUR AND ANOTEHR reported in AIR 2009 SC 1809 to the effect that additional property if any mentioned in the written statement can be added at a later stage in the list of the properties.(v) He also contended that the declaration in a partition suit is not necessary in view of the dictum of the Division Bench of this Court reported in the case of S. LOKANATHA vs. SMT. S. VARALAKSHMI AND OTHERS reported in ILR 2013 Kar 5063.(vi) He also contended that even the mutation already effected will not affect the plaintiff to claim his share. He sought to rely on the judgment of this Court in the case of NANJAMMA vs. AKKAYAMMA reported in 2015(3) AKR 706.(vii) It is also contended that item Nos.2 and 3 were re-granted on 06.10.1975 in the name of Narayan Reddy as kartha of the family will enure to the benefit of all the family members of the joint family including the plaintiff in view of the dictum of the Hon'ble Supreme Court in the case of B.L. SREEDHAR vs. K.M. MUNIREDDY reported in AIR 2003 SC 578.(viii) He further contended that if minor interest is not protected the reopening of the minors rights can be done at any stage in view of the dictum of the Hon'ble Supreme Court in the case of RATNAM CHETTIAR AND OTHERS .vs. S.M. KUPPUSWAMI CHETTIAR AND OTHERS reported in AIR 1976 SC 1.(ix) He also contended that if the division is unfair there is no estoppel for claiming a partition by the person who signed the document. Admittedly in the present case plaintiff is not signatory either to the oral partition or to the partition reduced to writing in the year 1982. Therefore there is no bar to file the present suit. In support of his contentions he relied upon the judgment of this Court in ILR 1992 Kar 3449.(x) He further strenuously contended that the judgment relied upon by the defendants in the case of Uttam -vs- Saubhag Singh and Others reported in AIR 2016 SC 1169. It relates to provisions of Section 6 of the Hindu Succession Act 1989 prior to amendment 1956.13. He further contended that in view of the report submitted by Commissioner on the consent given by both parties FSL report shall be looked into in the present miscellaneous first appeal in view of the provisions of Section 75 of the Code of Civil Procedure. He further contended that from the inception of the suit till today there was an order of status quo directing all the parties to maintain status quo. The same has to be maintained till disposal of the suit. He also relied upon the judgment of the Division Bench of Delhi High Court in the case of Vidyavati -vs- A.N. Wanchoo reported in 1996 (37) DRJ (Division Bench of this Hon'ble Court) at paragraphs 9 and 10.14. Per contra Sri Jayakumar S. Patil learned Counsel appearing for defendant No.13 relying upon the Genealogical Tree submitted that the original propositus Krishnappa Reddy who died in April 1968 had four sons and one daughter. Daughter Gowramma died subsequent to coming into force the Hindu Succession Amendment Act on 13.08.2006. If the plaintiff wants to file a suit he has to file a suit against his father K. Venkataramana Reddy in respect of the properties allotted to him but not in respect of the entire properties since the suit properties have legally crystallized the shares of all the four sons of Krishnappa Reddy and daughter as on the death of Krishnappa Reddy. He further contended that defendant No.1 - father of the plaintiff has not filed any written statement nor has denied the oral partition in the year 1971 or subsequent partition deed dated 01.05.1982. Therefore plaintiff cannot maintain the suit in respect of the joint family properties which were divided legally as on the death of Krishnappa Reddy and subsequently on a oral partition deed in the year 1971 which was registered on 01.05.1982. He further contended that item No.2 i.e. Sy.No.76/2 of Kasavanahalli village was granted to K. Narayan Reddy and K. Srinivas Reddy father of plaintiff Nos. 6 7 and 8 to an extent of 1 acre 4 guntas i.e. item Nos. 2 and 3 and subsequently the Khatha was also changed in their names and thereafter the land was used for commercial purpose after obtaining the permission from the Deputy Commissioner on 25.08.2010. The said transfer of records was not at all challenged by defendant No.1 Venkataramana Reddy-the father of the plaintiff or the plaintiff.15. In support of his contentions learned Senior Counsel relied upon the judgment of the Hon'ble Supreme Court in the case of Prakash -vs- Phulavati reported in (2016) 2 SCC 36 and stressed his arguments to the effect that if such a coparcener had died prior to the commencement of the Amendment Act succession opens out on the date of death as per the prevailing provision of the succession law and the rights of the legal heirs get crystallized even if partition by metes and bounds does not take place and the partition effected before 20.12.2004 remain unaffected as expressly provided under Section 6 of the Hindu Succession Act. He further relied upon the dictum of the Hon'ble Supreme Court in the case of Uttam - vs- Saubhag Singh and others reported in (2016)4 SCC 68 and contended that it is clear that as on the date of death of Krishnappa Reddy in the year 1968 the joint family properties which were ancestral properties in the hands of Krishnappa Reddy devolved by succession under Section 8 of the Hindu Succession Act. This being the case the ancestral properties cease to be the joint family properties as on the date of death of Krishnappa Reddy and other coparceners and on the birth of the present plaintiff i.e. after 1968 the said ancestral properties not being joint family properties the suit for partition of such properties would not be maintainable. When the maintainability of the suit itself is doubtful question of granting injunction does not arise.16. Sri C.M. Nagabhushan learned counsel for the 9th defendant/9th respondent contended that the original propositus of the joint family viz. Krishnappa Reddy died in April-1968 and the suit filed in respect of items 1 to 10 of the suit schedule properties and the plaintiff does not disclose the source of title in respect of the suit schedule properties and how the suit schedule properties became the joint family properties of Krishnappa Reddy. The suit schedule properties are not co-parcenary properties of the plaintiffs and the defendants. Therefore suit is not maintainable. He further contended that item No.1 of the suit schedule properties was purchased by all the four brothers on 04.08.1951 from their maternal grand-father. No contribution was made by Krishnappa Reddy the original propositus of the family. The said land was converted into non-agricultural purpose on 27.01.2004 and on 10.01.2010 defendant Nos.6 7 and 9 have entered into joint development agreement with SJR Builders.17. He further contended that insofar as item No.2 of the suit schedule properties it was granted to the father of the 9th defendant Narayan Reddy by the Special Deputy Commissioner for Inams on 06.10.1975. The said land was converted into non-agricultural purpose on 22.10.2003 by the jurisdictional Special Deputy Commissioner. On 29.5.2006 the 9th defendant entered into joint development agreement with Vama Builders and apartments came into existence in the year 2010. He further contended that on 6.12.2010 the 9th defendant executed gift deed in respect of one of the flats in favour of the 1st defendant who is the father of the present plaintiff. The plaintiff has no cause of action to file the suit and contended that the very suit is not maintainable. In support of his contention the learned counsel relied upon the judgment of this Court in the case of Mrs.MALLIKA & OTHERS .vs. MR. CHANDRAPPA & OTHERS reported in ILR 2007 KAR 3216 to the effect that by birth of the plaintiff he has no right in the suit properties and therefore suit is not maintainable. He also relied upon the provisions of Section 8 of the Hindu Succession Act. In support of his contention he sought to rely upon the decision of this Court in the case of SMT.SHAKUNTALA AND OTHERS .vs. BASAVARAJ AND OTHERS reported in ILR 2016 KAR 3604. Therefore he contended that the properties acquired by the father son will not get any right after 1956. Therefore the suit is not maintainable. He sought to rely upon the Division Bench decision of this Court in the case of GANGADHAR AND ANOTHER .vs. SOMASHEKAR AND OTHERS reported in 2016(2) Kar.L.R 746(DB).18. Prof. C.M. Nagabhushan learned Counsel for respondent No.9 contended that the original propositus of the joint family Sri Krishnappa Reddy died in the year 1968 after the Hindu Succession Act came into force in the year 1956 and hence Section 8 of the Hindu Succession Act applies. Admittedly the father of the plaintiff-defendant No.1 is still alive and hence the suit itself is not maintainable. If Krishnappa Reddy died prior to 1956 Section 6 of the Hindu Succession Act would not apply. In support of his contentions he relied upon the decision of the Apex Court in the case Yudhister -vs- Ashok Kumar reported in AIR 1987 SC 558 especially para 7. It is further contended that by filing of application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure accompanied by the affidavit the plaintiff has not made out any ingredients to grant temporary injunction and therefore suit of the plaintiff is liable to be dismissed.19. Sri Sadashivreddy learned senior counsel representing the 7th defendant/Respondent No.7 while adopting the arguments of Sri Jayakumar S. Patil learned senior counsel and Mr.Nagabhusan learned counsel contended that the very suit filed by the plaintiff is not maintainable. He also further contended that there was oral partition among the sons of Krishnappa Reddy in the year 1971. The same was reduced into writing on 01.05.1982. In terms of the said partition deed stated supra the properties situated at Andhra Pradesh were allotted to the shares of defendants 1 and 2 as per Schedule B and D in the said deed which are not included in the present suit. Therefore the suit filed by the plaintiff for partition is not maintainable. He further contended that defendant Nos.1 and 2 have executed General Power of Attorney in favour of K. Narayana Reddy father of defendant Nos.6 to 9 and the said Narayana Reddy alienated the properties. The said alienation is not questioned in the present suit. He further submits that on 04.08.1951 item No.1 of the suit properties was purchased by Narayana Reddy on behalf of three brothers who are minors. Subsequently on 09.12.2005 a registered partition deed came into effect among the children of Narayana Reddy in respect of the shares allotted to their father vide partition deed 01.05.1982. The partition deeds dated 01.05.1982 and 09.12.2005 are not challenged in the present suit. He further contended that item No.1 of the suit schedule properties totally consists of 6 acres 32 guntas and out of which 2 acres was allotted to the 6th defendant 2 acres to the 7th defendant and 2 acres 32 guntas in favour of the 9th defendant in terms of the registered partition deed dated 09.12.2005 and they have executed registered joint development agreement on 09.12.2005 in favour of SJR Corporation. Admittedly the said Corporation is not impleaded in the present suit. The said SJR Corporation has constructed 600 flats and sold the same to various persons and the purchasers were not impleaded in the suit and therefore sought for dismissal of the appeal.20. Sri.Ganesh learned advocate appearing for Sri Shivaswamy learned advocate for Respondent No.24/Defendant No.24 while justifying the impugned order passed by the trial Court has contended that as on the date of purchase in the year 1951 by the brothers - Narayan Reddy Lakshmaiah Reddy Srinivas Reddy and Venkatraramana Reddy three brothers were minors. It was acquired by the brothers as the self acquired property. Therefore the plaintiff has no right to file the suit for partition and separate possession.21. Sri Prasanna learned counsel for 6th defendant submits that the suit filed by the plaintiff is barred by limitation and invited attention of the Court to Article 110 of the Limitation Act to the effect that a person excluded from joint family properties who imposes right on a share is 12 years when the exclusion becomes known to the plaintiff. He also pointed out that plaintiff was excluded when the joint family properties were divided among the members on 01.05.1982 and mutation also effected in the year 1994. As suit was filed on 02.01.2016 after lapse of 22 years the suit is barred by limitation. Learned counsel further contended that the plaintiff has suppressed all the material facts and has not come to the Court with clean hands and since the suit is filed in the year 2016 the plaintiff is disentitled to any relief sought for. Therefore the Trial Court has rightly rejected the interim application.22. He further contended that the scope of jurisdiction of this Court to interfere with the impugned order passed by the Trial Court as appellate court is very limited. In support of his contention learned counsel relied on the dictum of the Hon'ble Supreme Court in the case of SMT. LALITHAKSHI ANANDANAGOUDA -vs- SADASHIVAPPA BASAPPA PATIL AND ANOTHER reported in AIR 1984 KAR 74 so also in the case of MANDALI RANGANNA AND OTHERS -vs- T. RAMACHANDRA AND OTHERS reported in AIR 2008 SC 2291. Therefore he sought for dismissal of the appeal.23. Sri B.N. Suresh Babu learned Counsel for defendant No.20 and Sri C.S. Hiremath learned Counsel appearing for defendant No.11 18 and 19 while adopting the arguments of learned counsel for other defendants sought to justify the impugned order passed by the Trial Court.24. Sri Nishanth.A.V. learned Counsel for defendant No.12 submits that the plaintiff has not pleaded any hardship and therefore the trial Court was justified in rejecting both the applications filed by the plaintiff. He also contended that this Court after hearing both the parties by Order dated 19.08.2016 sent the signatures of defendant No.2 to the hand writing expert and that expert opinion cannot be looked into in the present appeal unless the person who has sent the report has been examined. In support of his contentions he relied upon the judgment of the Hon'ble Supreme Court in the case of Ramesh Chandra Agrawal -vs- Regency Hospital Limited and Others reported in (2009) 9 SCC 709 with regard to expert opinion and also 'Relevancy of Expert's Opinion'. Therefore learned counsel sought for dismissal of the appeal.25. Sri S.R. Krishna Kumar learned Counsel for defendant No. 2 while supporting the arguments advanced by the learned Counsel for the plaintiff - Sri Anant Mandagi submits that in view of the provisions of Order XXVI Rule 10(2) and Order XXVI Rule 10A(2) of the Code of Civil Procedure the report of the expert opinion has to be looked into. Therefore he sought to set-aside the order passed by the trial Court. He also contended that in view of the provisions of Order 43 Rule 2 of the Code of Civil Procedure this Court can take into consideration the expert's opinion and set aside the order passed by the trial Court. He relied upon the judgment of the Hon'ble Supreme Court in the case of Smt. Jatan Golcha vs. M/s Golcha Properties (P) Ltd. reported in 1973 SC 573 to the effect that it is well settled that a person who is not a party to the suit can prefer an appeal and as such leave could be granted if he is pre-judiciously affected by the judgment. Therefore submits that the appeal filed by him is maintainable.III Points for consideration26. In view of the aforesaid rival contentions urged by the learned counsel for the parties to the lis on I.A. as well as on merits of the suit the points that arise for consideration are:(i) Whether this Court while exercising the powers under the provisions of Order 43 Rule 1(r) of Code of Civil Procedure can decide the case on merits of the pending suit between the parties while considering I.A.Nos.1 and 2 filed under Order XXXIX Rule 1 and 2 of Code of Civil Procedure?(ii) Whether the Trial Court is justified in dismissing the I.As. filed by the plaintiffs under Order XXXIX Rule 1 and 2 for temporary injunction in the facts and circumstances of the case?IV Discussion on the points framed:27. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record carefully.28. The substance of the case of the plaintiff is that he is the grand-son of late Krishna Reddy the original propositus of the joint family consisting of himself and four sons and a daughter. He died in the year 1968 and there was no partition in the joint family as on the date of the suit and therefore he is entitled to 6/75th share in the suit schedule properties and for possession.29. It is the specific case of the contesting defendants that there was an oral partition in the year 1971 and subsequently the same was reduced into writing as panchayath parikath on 1.5.1982. The father of the plaintiff i.e. 1st defendant is a signatory to the said partition deed. Therefore the suit filed by the plaintiff for partition is not maintainable. The plaintiff can file suit for partition only against his father's share and not against the entire joint family properties and he cannot maintain the suit when the father is alive. Therefore sought for dismissal of the suit.30. Sri Ananth Mandagi learned senior counsel appearing for the plaintiff/appellant contended that when there is no dispute between the parties with regard to joint family properties and the relationship the trial Court ought to have granted injunction to protect the properties of the plaintiff in the event the plaintiff succeeds in the suit. He further contended that the alleged partition deed dated 1.5.1982 is not binding on the plaintiff as the 2nd defendant one of the sons of Krishnappa Reddy had not signed the said partition deed as he was not in India as on the date of the alleged panchayath parikath. Therefore the contesting defendants in collusion has created panchayath parikath which cannot be acted upon and the plaintiff is not a party to the said panchayath parikath. Therefore the plaintiff is entitled to share. He also raised various contentions with regard to the alleged fraud played by the contesting defendants with regard to the alleged panchayath parikath in the year 1982. He further contended that during the pendency of the present appeal before this Court a Court Commissioner was appointed with the consent of both the parties. Both the admitted and disputed signatures of the 2nd defendant were sent to Forensic Science Laboratory and report is before this Court. If the report is accepted it clearly indicates that the signature of defendant No.2 was forged. If the said report is not accepted the alleged panchayath parikath is created for the purpose of the suit and the plaintiff is entitled for share. Therefore the trial Court ought to have protected the share of the plaintiff by granting an order of Temporary Injunction. He also relied upon the various judgments of this Court and the Hon'ble Supreme Court with regard to maintainability of the suit as well as entitlement of share and also grant of Temporary Injunction.31. The learned senior counsel and other counsel for the contesting respondents relying upon the genealogical tree of the joint family contended that Krishnappa Reddy died in the year 1968 and his daughter - Gowramma died on 22.8.2006 i.e. subsequent to Hindu Succession (Amendment) Act 2005 came into force. If the plaintiff wants to file a suit he has to file against his father - K. Venkatramana Reddy in respect of the properties allotted to him but not in respect of the entire joint family properties since the shares of all the four sons of Krishnapa Reddy have crystallized as on the date of death of Krishnappa Reddy in the year 1968. It is also contended that father of the plaintiff i.e. the 1st defendant has not filed the written statement and neither denied the oral partition of the year 1971 nor partition deed dated 1.5.1982. Since the coparcener has died prior to commencement of the amendment Act succession opens out on the date of death as per the prevailing provisions of the succession and the rights of the legal heirs get crystallized even if the partition by metes and bounds does not take place. Admittedly the partition effected before 20.12.2004 remain unaffected as expressly provided which is notional partition.32. It is further contended by the learned counsel for the contesting respondents that in view of the dictum of the Hon'ble Supreme Court in the case of Uttam .vs. Saubhag Singh reported in (2016)4 SCC 68 since the original propositus died in the year 1968 the joint family properties which are ancestral properties in the hands of K. Krishnappa Reddy devolved by succession under Section 8 of the Act. In view of the said dictum when the maintainability of the suit itself is doubtful question of granting injunction does not arise. It was further contended that item NO.1 of the suit schedule properties was purchased by all the four brothers on 4.8.1951 from their maternal grand-father. No contribution was made by Krishnappa Reddy who was the original propositus of the family and the said land was converted into non-agricultural purpose in the year 2004 and 2010 and defendant Nos.6 7 and 9 have entered into joint development agreement with the SJR Builders. Neither the father of the plaintiff nor the plaintiff has questioned the construction made in item Nos.1 and 2. Therefore the plaintiff by birth has no right in the suit properties and hence the suit is not maintainable. It is further contended that in the entire plaint no averment is made that the grand-father of the plaintiff has inherited the property prior to 1956 and therefore suit is not maintainable.33. It is the specific contention of all the contesting respondents that as soon as Krishnappa Reddy died in the year 1968 under the law the notional partition had been effected between Krishnappa Reddy and his sons. Therefore the rights if any for the plaintiff is only to file a suit against his father and not against other members of the joint family and therefore the suit is not maintainable. It was further contended that the joint family properties were divided among the members on 1.5.1982 and subsequently mutation was also effected in the year 1993- 94 and suit filed on 2.1.2016 after lapse of 22 years. The suit itself is not maintainable and same is barred by limitation in view of the Article 110 of the Limitation Act. It is also contended by one of the contesting defendants that the original propositus of the joint family died in the year 1968 after Hindu Succession Act 1956 came into force and hence the provisions of Section 8 of the Hindu Succession Act 1956 is applicable. Admittedly the father of the plaintiff i.e. the 1st defendant is still alive. Hence the suit itself is not maintainable. If Krishnappa Reddy died prior to 1956 the provisions of Section 6 of the Hindu Succession Act would not apply. In view of the above the plaintiff has not fulfilled the ingredients required to grant an order of Temporary Injunction and absolutely there is no material to prove that the suit schedule properties are still joint family properties of the plaintiff and the defendants as contended.34. The learned counsel for the plaintiff and the learned counsel for contesting defendants have raised various contentions touching upon the merits of the case and also relied upon the judgments of this Court and the Apex Court with reference to merits of the suit.35. If the contentions of Sri Ananth Mandagi learned senior counsel for the plaintiff/appellant including that the alleged partition deed dated 1.5.1982 is forged is accepted based on the Forensic Science Laboratory Report and various judgments relied upon by him are taken into consideration then the suit is maintainable and the suit is liable to be decreed holding that the plaintiff is entitled to 6/75th share in all the suit schedule properties.36. If the contentions of the learned counsel for the contesting defendants/respondents that there was a notional partition as soon as Krishnappa Reddy died in the year 1968 and there was an oral partition in the year 1971 and same was reduced into writing on 1.5.1982 are accepted and the various judgments relied upon by them are taken into consideration then the very suit itself is not maintainable and the plaintiff is not entitled to any relief.37. In view of the various contentions urged by the learned counsel for the parties to the lis it is clear that while deciding the present appeals arising out of interlocutory applications under Order 39 Rules 1 and 2 of CPC the scope of the appeal is very limited. As already stated supra if this Court accepts either of the contentions of the learned senior counsel for the parties and the judgments relied upon by them and the Forensic Science Laboratory report nothing is left to be adjudicated in the suit between the parties. Therefore this Court desists to decide the case on merits of the suit. Therefore the 1st point raised in the present appeals has to be answered in the negative holding that this Court while exercising the powers under the provisions of Order 43 Rule 1 (r) of CPC cannot decide the case on merits of the pending suit between the parties while considering the orders passed on I.A. Nos.1 and 2 under Order 39 Rules 1 and 2 of CPC.38. Our history clearly depicts that the persons who fought for money woman and land will not be ultimately happy in life. In the present case the chequered history of the case clearly indicates that the legal battle started among the members of the joint family for the immovable properties and it is not easily solved because of the pleadings in the plaint and the defence in the written statement. We do not know when it will come to an end. Once the legal battle starts because of the ego between the parties it will not come to an end easily and ultimately it results in spoiling the happiness of all the parties. Therefore it is high time for the parties in the present case to get resolved the dispute among the parties amicably in order to avoid long legal battle keeping in view the relationship between the parties.39. It is well settled principle of law that while considering an application for grant of Injunction the Court will not only take into consideration the basic elements in relation thereto viz. (a) existence of primafacie case; (b) balance of convenience; and (c) irreparable injury but it must also take into consideration the conduct of the parties. Grant of Temporary Injunction is an equitable relief. A person who had kept quiet for a long time and allowed another to deal the properties exclusively ordinarily would not be entitled to an order of Temporary Injunction. The Court will not interfere only because the property is a very valuable one. 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. Admittedly in the present case as can be seen from the pleadings of the plaint the plaintiff alleges that the original propositus Krishnappa Reddy died in the year 1968 and the present plaintiff was born in the year 1971. Plaintiff further alleges in the pleadings of the plaint that some of the defendants have illegally and high handedly entered into a registered agreement in the year 2005 in respect of some of the items of the suit schedule properties and some of the defendants were using item No.9 of the suit schedule properties for running petrol bunk and the eldest son of the original propositus has entered into various fraudulent transactions in respect of item No.8 of the suit schedule properties with the Karnataka Electricity Board Employees' Co-operative Society and Golden Gate Projects. The materials on record clearly indicate creation of innumerable documents spread over a period of two decades and the entries having gone unchallenged clearly indicate that the defendants were treating those properties as their exclusive properties and they have created 3rd party interest in them and dealt with those properties in a way they like etc. Admittedly the suit filed in the year 2016 after lapse of more than 45 years from the date of birth of the plaintiff and 24 years after the plaintiff attained the majority. Primafacie the documents depict that the defendants are in possession of the suit properties since from long time and the plaintiff never exercised any act of possession for more than 24 years from the date he attained majority. Therefore the plaintiff is not entitled to the order of Temporary Injunction at this stage and various contentions urged by both the parties have to be adjudicated between the parties to the lis.40. In order to consider the primafacie case made out by the plaintiff for grant of Temporary Injunction considering the provisions of Order 39 Rules 1 and 2 of CPC we have to rely the pleadings of both the parties. According to the plaintiff suit schedule properties are joint family properties of the plaintiff and the defendants and there was no partition. According to the contesting defendants as soon as original propositus Krishnappa Reddy died in the year 1968 under the law notional partition effected and also contended that there was oral partition in the year 1971 and the same was reduced into writing on 1.5.1982 as per panchayath parikath. But the same is disputed by the plaintiff on the ground that the 2nd defendant - Lakshmaiah Reddy was not in India as on the date of the alleged panchayath parikath and his signature has been forged. The dispute between the parties whether there was a partition of the joint family properties or not has to be adjudicated only after trial between the parties. Unless and until the evidence is adduced by both the parties it is not possible for the Court to come to the conclusion as to whether there was a partition of the joint family properties and whether the document alleged i.e. panchayath parikath has been forged. The question as to whether there was partition in the joint family properties or not has to be adjudicated after allowing both the parties to the lis to adduce oral and documentary evidence. Thereafter the case of respective parties has to be decided.41. According to the contesting defendants there are series of transactions among the defendants and they have referred joint development agreements said to have been entered into between the parties. The same has to be adjudicated after trial. The contention of the plaintiff is that the suit schedule properties are the joint family properties of the plaintiff and the defendants and there was no partition; The plaintiff is in possession and enjoyment of the suit schedule properties and if any alienation and construction is made it will alter the nature and character of the suit schedule properties. Therefore he sought for Temporary Injunction restraining the contesting defendants from alienating encumbering or dispossessing of the suit schedule properties or any portion thereof by way of sale mortgage lease etc. pending disposal of the suit.42. The contesting defendants have taken a specific contention that there was a oral partition in the year 1971 the same was reduced into writing on 1.5.1982 and some of the lands converted into non-agricultural purpose and defendant Nos.6 7 and 9 have executed a registered joint development agreement on 9.12.2005 in favour of SJR Corporation and the said Corporation has constructed 600 flats and sold the same to various persons and the purchasers were not impleaded. According to the contesting defendants some of the apartments already came into existence even before filing the suit and some of the developers and subsequent purchasers were not impleaded in the suit. The said aspects have to be considered only after adjudication of the trial between the parties to the lis. At the same time the rights of the plaintiff in respect his share in the suit schedule properties if any has to be protected.43. The Hon'ble Supreme Court while considering the provisions of Order 39 Rules 1 and 2 of Code of Civil Procedure 1908 in the case of Mandali Ranganna and others .vs. T. Ramachandra and others reported in AIR 2008 SC 2291 held as under: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.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.V Findings of the Trial Court:44. The trial Court considering the entire material on record has recorded a finding of fact that in the instant case severance in the joint family having been proved by creation of innumerable documents spread over a period of two decades and the said entries having gone unchallenged indicating that the contesting defendants were treating those properties as their exclusive properties and they have created third party interest in them and dealt with those properties in a way they liked etc. and negatived the contention of the plaintiff that still they are living in joint family and suit properties are joint family properties. It is also not in dispute that though it is alleged that the signature of the 2nd defendant is forged in respect of panchayath parikath dated 1.5.1982 the fact remains that father of the plaintiff i.e 1st defendant - Venkataramana Reddy who is the signatory to the panchayath parikath has not filed the written statement and not taken any specific stand whether there was a partition or not. The 1st defendant did not challenge the alleged partition deed from 1982 till today and he is acting like a mute spectator and admittedly in the present case the plaintiff except sought for partition is not seeking any declaration to declare the alleged partition deed dated 1.5.1982 is not binding on him. Therefore the trial Court was of the considered opinion that the plaintiff has not made out a case for grant of Temporary Injunction as prayed for in I.A. Nos.1 and 2.45. It is also not in dispute that the plaintiff has specifically stated in the plaint averments that the defendant Nos.6 7 and 9 have illegally and highhandedly entered into a registered joint development agreement dated 9.12.2005 with defendant No.20 in respect of Sy.No.68 i.e. item No.1 of the suit schedule properties and also contended that similarly item No.9 bearing Sy. No.45/1 is illegally and highhandedly being used for running a petrol bunk and late K. Narayana Reddy the eldest son of late Krishnappa Reddy appears to have entered into various illegal fraudulent sham and collusive transactions in respect of Sy.No.38 i.e. item No.8 of the suit schedule properties with the Karnataka Electricity Board Employees Co-operative Society Limited. It is further contended that defendant No.11 - K.S. Suresh has executed an illegal and invalid gift deed dated 15.6.2015 in respect of item No.6 bearing Sy.No.40/3 in favour of his children - defendant Nos.18 and 19. The said transactions are not binding on the plaintiff or affect his legitimate share right title and interest. The aforesaid plaint averments clearly indicate that certain properties are already alienated by the members of the joint family and certain registered documents came into existence. The fact remains that in the prayer column the plaintiff has not questioned either of the registered documents and he has sought for only 6/57th share in the suit schedule properties. In the pleadings the plaintiff has admitted certain transactions among the members of the family. Whether the said transactions by the alleged defendants in respect of the suit schedule properties are binding on the plaintiff or not has to be adjudicated after full fledged trial between the parties. In the absence of any specific details and in the absence of any challenge to the alleged registered documents and in the absence of any prayer to that effect it is not possible for the Court to grant Temporary Injunction as prayed for by the plaintiff after lapse of so many decades when the suit was filed for the relief of partition only on 2.1.2016.46. While considering the rights of the parties involved in respect of the immovable properties both the plaintiff and the contesting defendants hotly contested the rights in respect of the suit schedule properties. Whether the plaintiff is entitled to share or not has to be decided after adjudication of the trial between the parties including the maintainability of the suit. It is also well settled that if ultimately the plaintiff succeeds in the suit holding that he is entitled to share as sought for any transaction held prior to filing of the suit will not be binding on the plaintiff and any transaction/joint development agreement entered into among the defendants subsequent to filing of the suit will definitely be hit by the provisions of Section 52 of the Transfer of Property Act. Even if the suit schedule properties are developed by the contesting defendants they would be doing so at their own risk of sharing the benefits of development in the suit schedule properties to the plaintiff's share.47. The prayer sought in the I.A. is for restraining the defendant Nos.6 to 13 18 19 and 20 to 24 from changing or altering the nature and character of the suit schedule properties and from putting up of any kind of construction thereon pending disposal of the suit. The fact remains that either in the plaint or in the application there is no clarity as to which property is intact as on the date of the suit and which is the property already executed. Admittedly the suit schedule properties consists of 10 items and there is no specific averment as to which property still in the joint names of the plaintiff and the defendants and which property already developed prior to filing of the suit or transaction in respect of the alleged joint development agreements. Further the concerned joint developers were not impleaded as parties. In the absence of any specification in the pleadings and in the application it is very difficult for the Court to grant Temporary Injunction as sought for without identity of the properties in question (not the description of the properties) but transactions of the properties.48. The various documents produced by the plaintiff like release deed dated 7.4.2006 joint development agreement dated 26.3.2015 Grant Order dated 6.10.1975 unregistered partition deed dated 1.5.1982 the sale deeds dated 30.7.1951 4.1.1947 the Mutation Extract Nos.7/1993-94 6/1993-94 and other documents by the plaintiff are disputed by the contesting defendants. The documents relied upon by the contesting defendants with regard to various transactions joint development agreement and subsequent partition among the defendants and various sale deeds mutation entries are disputed by the plaintiff. Therefore adjudication of the trial between the parties is required. Only after adjudication of these aspects in the trial the truth will come out as to whether the suit schedule properties are the joint family properties of the plaintiff and the defendants and there was no partition as contended by the plaintiff or whether there was a division in the joint family properties as contended by the contesting defendants and genuineness of certain documents including the alleged panchayath parikath dated 1.5.1982 and the stamp paper purchased in the name of K. Narayan Reddy have to be adjudicated in the trial. For the reasons stated supra 2nd point raised in the appeal has to be answered in the affirmative holding that the trial court is justified in dismissing IA 1 and 2.VI Conclusion49. In view of the various contentions and documents and the judgments relied upon by both the parties to the lis in the ends of justice it is suffice to observe that any transaction held prior to filing of the suit in respect of the suit schedule properties will not be binding on the plaintiff and any transaction took place between the contesting defendants subsequent to filing of the suit would always be hit by the provisions of Section 52 of the Transfer of Property Act and even if the suit schedule properties are developed by the contesting defendants they would be doing so at their own risk of sharing the benefits of the development in the suit schedule properties to the plaintiff's share. Therefore the plaintiff has not made out any ground to interfere with the impugned order passed by the trial Court at this stage. However in the interest of justice it is needless to observe that the defendants or subsequent purchasers shall not entitle to claim any equity in case the plaintiff succeeds in the suit.50. For the reasons stated above the plaintiff has not made out any ground to interfere with the impugned order passed by the trial Court. In view of the serious dispute between the parties in respect of the suit schedule properties and taking into consideration that the relationship between the parties is not in dispute it is suffice to direct the trial Court to decide the suit itself expeditiously in order to resolve the dispute between the parties. All parties must co-operate in the early hearing and disposal of the suit.51. With the above observations both the Miscellaneous First Appeals are disposed of.52. However it is made clear that any observations made by the trial Court or this Court while considering the interlocutory applications under Order 39 Rules and 2 of Code of Civil Procedure 1908 shall not come in the way of either of the parties to establish their respective cases independently before the trial Court after adjudication of both oral and documentary evidence. The trial Court is directed to decide the suit without being influenced by any of the observations made by the trial Court or this Court while considering I.As. for Temporary Injunction and proceed with the suit strictly in accordance with law.