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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 16th DAY OF APRIL 2015

BEFORE

THE HON’BLE MR. JUSTICE L. NARAYANA SWAMY

WRIT PETITIONS NO.38077 OF 2014 & 38460 OF 2014 C/W 47128 OF 2014 (GM-CPC)

WRIT PETITIONS No.38077 OF 2014 & 38460 OF 2014 BETWEEN: SRI. C. KISHANLAL KOTHARI S/O LATE CHANDAMAL AGED ABOUT 67 YEARS, R/AT NO.97, BAZAAR STREET, ULSOOR, BANGALORE-560 008 PROCLAIMED SECRETARY OF BANGALORE GORAKSHANASHALA SOCIETY, HAVING ITS OFFICE AT NEKKUNDI, DOORAVANINAGAR POST, BANGALORE TALUK, BANGALORE-560 037 ... PETITIONER

(BY SRI. TARAKRAM, SR. COUNSEL FOR SRI H R ANANTHAKRISHNA MURTHY – ADV.) AND 1. VINOD SOHANRAJ SANKLA

S/O LATE SOHANRAJ SANKLA AGED ABOUT 46 YEARS, A-504, SUJAY GARDEN MUKUNDNAGAR PUNE-37

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2. PRAVEEN SOHANRAJ SANKLA ALIAS PRAVEEN KHUBILAL KAVEDIA AGED ABOUT 48 YEARS, R/O "PANKAWAR" PLOT NO.10 AKASH DARSHAN SOCIETY SALISBURY PARK GULTEKADI PUNE-411037

3. SHANTILAL JAIN S/O LATE LALCHAND SANKHLA AGED ABOUT 76 YEARS, R/AT BOMMANIMAIDAM, GAUHATI-21

4. RAJKUMAR JAIN S/O SHANTILAL JAIN AGED ABOUT 51 YEARS, R/AT BOMMANIMAIDAM, GAUHATI-21

5. PAVAN KUMAR S/O SHANTILAL JAIN AGED ABOUT 44 YEARS, R/AT BOMMANIMAIDAM, GAUHATI-21

6. DHARMENDRA KUMAR JAIN S/O SHANTILAL JAIN AGED ABOUT 38 YEARS, R/AT BOMMANIMAIDAM, GAUHATI-21

7. RAJIV SANKHLA S/O LATE HANSRAJ SHANKHLAL AGED ABOUT 44 YEARS, R/AT A.T.ROAD, KAMRUP DISTRICT, GAUHATI-1, ASSAM

8. AJAY SANKHLA S/O LATE DAULATRAJ SANKHLA AGED ABOUT 38 YEARS, R/AT A.T.ROAD, KAMRUP DISTRICT,

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GAUHATI-1, ASSAM 9. SUMATICHAND SANKHLA

S/O LATE LALCHAND SANKHLA AGED ABOUT 57 YEARS, R/AT 3A, JANKI NAGAR MAIN, 303, CHANDRAMANI APARTMENT, INDORE-452001

10. VIKAS SANKHLA

S/O SUMATICHAND SANKHLA AGED ABOUT 29 YEARS, R/AT 3A, JANKI NAGAR MAIN, 303, CHANDRAMANI APARTMENT, INDORE-452001

11. ASHOK KUMAR RATANLAL SANKHLA S/O LATE RATANLAL SANKHLA AGED ABOUT 72 YEARS, R/O BHAGIRATHA COMPLEX, SHAHAGANJ, AURANGABAD.

12. VIRCHAND RATANLAL SANKHLA S/O LATE RATANLAL SANKHLA AGED ABOUT 70 YEARS, R/O ANAND APARTMENT, JAFARGET, AURANGABAD.

13. V.SANJAY VIRCHAND SANKHLA S/O R.VIRCHAND SANKHLA AGED ABOUT 43 YEARS, R/O ANAND APARTMENT JAFERPET AURANGABAD (MH)

14. R.UTTAMCHAND RATANLAL SANKHLA S/O LATE RATANLAL SANKHLA AGED ABOUT 56 YEARS, R/O NEW SAPANAPURTI HOUSING SOCIETY, BAJARANG CHOK, N-6, CIDCO, AURANGABAD

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15. R.SANTOSH RATANLAL SANKHLA S/O LATE RATANLAL SANKHLA AGED ABOUT 46 YEARS, R/O GOPINATH PURAM ROW HOUSES, NO.6, AAYAPPA MANDIR SAINATH NAGAR, SATARA PARISAN AURANGABAD

16. A MAHAVEER ASHOK KUMAR SANKHLA S/O R ASHOK KUMAR SANKHLA AGED ABOUT 38 YEARS, R/O BHAGEERATHA COMPLEX, SHAHGANJ, AURANGABAD

17. U.MUKESH UTTAMCHAND SANKHLA S/O R UTTAMCHAND SANKHLA AGED ABOUT 34 YEARS, RESIDING AT NEW SAPANAPURTI HOUSING SOCIETY, BAJARANG CHOK, N-6, CIDCO, AURANGABAD

18. NITIAN UTTAMCHAND SANKHLA

S/O UTTAMCHAND SANKHLA AGED ABOUT 32 YEARS, RESIDING AT NEW SAPANAPURTI HOUSING SOCIETY, BAJARANG CHOK, N-6, CIDCO, AURANGABAD

19. MR.SAJJANRAJ SANKHLA S/O S.GIRIDHARILAL AGED ABOUT 76 YEARS, REPRESENTED BY THEIR AUTHORISED SIGNATORY SAJJANRAJ SHANKHLA R/AT NO.35, 7TH CROSS, VASANTHNAGAR, BANGALORE.

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20. MR.TEJBAHADUR S/O LATE G.ANRAJ AGED ABOUT 71 YEARS, REPRESENTED BY THEIR AUTHORISED SIGNATORY, SAJJANRAJ SHANKHLA R/AT NO.35, 7TH CROSS, VASANTHNAGAR, BANGALORE.

21. GAUTAMCHAND SANKHLA S/O SAJJANRAJ SANKHLA AGED ABOUT 56 YEARS, REPRESENTED BY THEIR AUTHORISED SIGNATORY SAJJANRAJ SHANKHLA, R/AT NO.35, 7TH CROSS, VASANTHNAGAR, BANGALORE.

22. NITESH SANKHLA S/O SURESH SANKHLA AGED ABOUT 26 YEARS, REPRESENTED BY THEIR AUTHORISED SIGNATORY SAJJANRAJ SHANKHLA R/AT NO.35, 7TH CROSS, VASANTHNAGAR, BANGALORE.

23. MR. SURESH SHANKHLA

S/O M.DHARMARAJ SANKHLA AGED ABOUT 53 YEARS, REPRESENTED BY THEIR AUTHORISED SIGNATORY SAJJANRAJ SHANKHLA R/AT NO.35, 7TH CROSS, VASANTHNAGAR, BANGALORE.

24. MR.VISHAL SANKHLA S/O GOUTAMACHAND SANKHLA AGED ABOUT 33 YEARS, REPRESENTED BY THEIR AUTHORISED SIGNATORY SAJJANRAJ

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SHANKHLA R/AT NO.35, 7TH CROSS, VASANTHNAGAR, BANGALORE.

25. MR.VEDANTH SANKHLA S/O GOUTAMACHAND SANKHLA AGED ABOUT 31 YEARS, REPRESENTED BY THEIR AUTHORISED SIGNATORY SAJJANRAJ SHANKHLA R/AT NO.35, 7TH CROSS, VASANTHNAGAR, BANGALORE.

26. MR.HARISH SANKHLA S/O SAJJANRAJ SANKHLA AGED ABOUT 48 YEARS, REPRESENTED BY THEIR AUTHORISED SIGNATORY SAJJANRAJ SHANKHLA R/AT NO.35, 7TH CROSS, VASANTHNAGAR, BANGALORE.

27. MR.KARAN SANKHLA S/O HARISH SANKHLA AGED ABOUT 15 YEARS, REPRESENTED BY THEIR AUTHORISED SIGNATORY SAJJANRAJ SHANKHLA R/AT NO.35, 7TH CROSS, VASANTHNAGAR, BANGALORE.

28. MR.MOHIT SANKHLA S/O LATE SAJJANRAJ SANKHLA AGED ABOUT 28 YEARS, REPRESENTED BY THEIR AUTHORISED SIGNATORY SAJJANRAJ SHANKHLA R/AT NO.35, 7TH CROSS, VASANTHNAGAR, BANGALORE.

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29. MR.SUNIL SANKHLA S/O TEJBAHADDUR SANKHLA AGED ABOUT 46 YEARS, REPRESENTED BY THEIR AUTHORISED SIGNATORY SAJJANRAJ SHANKHLA R/AT NO.35, 7TH CROSS, VASANTHNAGAR, BANGALORE.

30. MR.RAJIV SANKHLA S/O SUNIL SANKHLA AGED ABOUT 22 YEARS, REPRESENTED BY THEIR AUTHORISED SIGNATORY SAJJANRAJ SHANKHLA R/AT NO.35, 7TH CROSS, VASANTHNAGAR, BANGALORE.

31. MR.DILIP SANKHLA S/O TEJABAHADDUR SANKHLA AGED ABOUT 45 YEARS, REPRESENTED BY THEIR AUTHORISED SIGNATORY SAJJANRAJ SHANKHLA R/AT NO.35, 7TH CROSS, VASANTHNAGAR, BANGALORE.

32. MR.ADIYA SANKHLA S/O TEJABAHADDUR SANKHLA AGED ABOUT 42 YEARS, REPRESENTED BY THEIR AUTHORISED SIGNATORY SAJJANRAJ SHANKHLA R/AT NO.35, 7TH CROSS, VASANTHNAGAR, BANGALORE.

33. MR.SATHISHRAJ SANKHLA S/O TEJABAHADDUR SANKHLA AGED ABOUT 42 YEARS, REPRESENTED BY THEIR

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AUTHORISED SIGNATORY SAJJANRAJ SHANKHLA R/AT NO.35, 7TH CROSS, VASANTHNAGAR, BANGALORE.

34. M/S BAGMANE CONSTRUCTION PVT.LTD 8TH FLOOR, 1 BLOCK, BAGMANE LAKE VIEW, BAGMANE TECH PARK, CV RAMAN NAGAR, BANGALORE.

35. SATYANARAYANA AGED ABOUT 51 YEARS, S/O THIMMAIAH, R/AT 8TH FLOOR, BAGMANE LAKE VIEW, BAGMANE TECHPARK, CV RAMAN NAGAR, BANGALORE. RESPONDENTS

(By Sri./Smt : LOKESH KUMAR K S )

THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND

227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE

ORDER ON I.A. NO.13 AND 26 DATED 6.2.2014 IN O.S. NO. 8230/2007

PASSED BY THE LEARNED CITY CIVIL JUDGE AT BANGALORE VIDE

ANN-Z

W P NO.47128/2014 BETWEEN 1. ASHOK KUMAR RATANLAL SAKHALA

AGED ABOUT 72 YEARS OCC:BUSINESS R/O BHAGIRATH COMPLEX SHAHAGANJ, AURANGABAD

2. VEERCHAND RATANLAL SAKHALA AGED ABOUT 69 YEARS OCC:BUSINESS

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R/O FLAT NO.1, ANAND APARTMENT JAFARGATE AURANGABAD

3. SANJAY VEERCHAND SAKHALA AGED ABOUT 42 YEARS OCC:BUSINESS R/O FLAT NO. 1, ANAND APARTENT JAFARGATE AURANGABAD

4. SANTHOSH RATHANLAL SAKHALA AGED ABOUT 48 YEARS OCC:BUSINESS R/O HOUSE NO.6 GOPINATHAPURAM BEED-BYE PASS ROAD AYYAPPA MANDIR AURANGABAD

5. MAHAVIR ASHOK SAKHALA AGED ABOUT 38 YEARS OCC:BUSINESS R/O FLAT NO. 1 BHAGIRATH COMPLEX, OPP PATEL PETROL PUMP SHAHGUNJ, AURANGABAD

6. MUKESH UTTAMCHAND SAKHALA AGED ABOUT 34 YEARS OCC:BUSINESS R/AT PLOT NO. 6/4 ASHTAVINAYAK HOUSING SOCIETY NAREGOAN ROAD, CHIKALTHANA MIDC, AURANABAD

7. NITIN UTTAMCHAND SAKHALA AGED ABOUT 32 YEARS OCC:BUSINESS R/O PLOT NO.6/4 ASHTAVINAYAKA HOUSING SOCIETY NAREGAON ROAD CHIKALTHANA

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MIDC, AURANGABAD ALL ARE REPRESENTED BY SPS HOLDERS

8. SRI B YARRAM REDDY S/O RAM REDDY AGED ABOUT 45 YEARS RESIDING OF PLOT NO. 177 DHANALAXMI MILAYAM PRAGATI ENCLAVE, MIYAPUR HYDERABAD

9. SRI SANTHOSH RATHANLAL SAKHALA AGED ABOUT 48 YEARS OCC:BUSINESS R/O HOUSE NO. 6, GOPINATHAPURAM, BEED-BYE PASS ROAD OPPOSITE AYYAPPA MANDIR AURANGABAD

10. SRI NARSIE REDDY S/O VENKATA REDDY AGED ABOUT 45 YEARS OCC:BUSINESS R/O PLOT NO. 313 PHASE 1/4, PARTUNER HYDERABAD ... PETITIONERS

(BY SRI.LOKESH KUMAR K S – ADV.) AND 1. SRI C KISHANLAL KOTHARI

S/O LATE CHANDAMAL AGED ABOUT 66 YEARS RESIDING AT NO. 97, BAZAAR STREET, ULSOOR BANGALORE-08 SECRETARY OF BANGALORE GORAKSHANASHALA SOCIETY (REGISTERED UNDER THE MYSORE SOCIETIES ACT

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HAVING ITS OFFICE AT NIKUNDI, DOODRVANINAGAR POST BANGALORE TALUK BANGALORE-17

2. M/S BAGMANE CONSTRUCTIONS PRIVATE LIMITED A PRIVATE LIMITED COMPANY INCORPORATED UNDER THE COMPANIES ACT 1956, HAVING ITS REGISTERED OFFICE AT 8TH FLOOR, A BLOCK, BAGMANE LAKE VIEW, BAGMANE TECHPARK, C V RAMAN NAGAR BANGALORE-560053 REPRESENTED BY ITS MANAGING DIRECTOR RAJA BAGMANE

3. S SAJJANRAJ SANKHLA S/O S GIRIDHARILAL AGED ABOUT 74 YEARS RESIDING AT NO. 35 7TH CROSS, VASANTHANAGAR BANGALORE-052

4. MR TEJBAHADUR S/O LATE G ANRAJ AGED ABOUT 69 YEARS RESIDING AT NO. 35, 7TH CROSS, VASANTHANAGAR BANGALORE-052

5. GAUTHAMCHAND SANKHLA S/O SAJJANRAJ SANKHLA AGED ABOUT 54 YEARS RESIDING AT NO. 35, 7TH CROSS, VASANTHANAGAR BANGALORE-052

6. NITESH SANKHLA S/O SURESH SANKHLA AGED ABOUT 24 YEARS RESIDING AT NO. 35, 7TH CROSS, VASANTHANAGAR

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BANGALORE-052

7. MR SURESH SANKHLA S/O LATE DHARAMRAJ SANKHLA AGED ABOUT 50 YEARS RESIDING AT NO. 35, 7TH CROSS, VASANTHANAGAR BANGALORE-052

8. MR VISHAL SANKHLA S/O MR COUTAMCHAND SANKHLA AGED ABOUT 31 YEARS RESIDING AT NO. 35, 7TH CROSS, VASANTHANAGAR BANGALORE-052

9. MR VEDANTH SANKHLA S/O MR GOUTHAMACHAND SANKHLA AGED ABOUT 28 YEARS RESIDING AT NO. 35, 7TH CROSS, VASANTHANAGAR BANGALORE-052

10. MR HARISH SANKHLA S/O MR SAJJANRAJ SANKHLA AGED ABOUT 46 YEARS RESIDING AT NO. 35, 7TH CROSS, VASANTHANAGAR BANGALORE-052

11. MR KARAN SANKHLA S/O MR HARISH SANKHLA AGED ABOUT 12 YEARS RESIDING AT NO. 35, 7TH CROSS, VASANTHANAGAR BANGALORE-052

12. MR MOHIT SANKHLA S/O LATE SAJJANRAJ SANKHLA AGED ABOUT 25 YEARS

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RESIDING AT NO. 35, 7TH CROSS, VASANTHANAGAR BANGALORE-052

13. MR SUNIL SANKHLA JAIN S/O MR TEJBAHADDUR SANKHLA AGED ABOUT 43 YEARS RESIDING AT NO. 35, 7TH CROSS, VASANTHANAGAR BANGALORE-052

14. MR RAJIV SANKHLA S/O SUNIL SANKHLA AGED ABOUT 18 YEARS RESIDING AT NO. 35, 7TH CROSS, VASANTHANAGAR BANGALORE-052

15. MR DILIP SANKHLA S/O MR TEJBAHADUR SANKHLA AGED ABOUT 41 YEARS RESIDING AT NO. 35, 7TH CROSS, VASANTHANAGAR BANGALORE-052

16. MR ADITYA SANKHLA S/O MR DILIP SANKHLA AGED ABOUT 18 YEARS RESIDING AT NO. 35, 7TH CROSS, VASANTHANAGAR BANGALORE-052

17. MR SATISHRAJ SANKHLA S/O MR TEJBAHADUR SANKHLA AGED ABOUT 39 YEARS RESIDING AT NO. 35, 7TH CROSS, VASANTHANAGAR BANGALORE-052

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18. BANGALORE GORAKSHANASHALA SOCIETY (REGISTERED UNDER THE MYSORE SOCIETIES ACT HAVING ITS OFFICE AT) NIKKUNDI DOORAVANINAGAR POST BANGALORE TALUK BANGALORE-560017 REPRESENTED BY ITS SECRETARY SRI VIJAYRAJ LUNIA S/O LATE POOLCHAND LUNIA AGED ABOUT 49 YEARS RESIDING AT NO.19 D S LANE, CHIKKAPET CROSS BANGALORE-560053

19. SATHYANARAYANA S/O SRI THIMMAIAH AGED ABOUT 45 YEARS 8TH FLOOR, A BLOCK BAGMANE LAKE BAGMANE TECHPARK C V RAMAN NAGAR BANGALORE-560053

20. VINOD SOHANRAJ SANKLA S/O LATE SOHAN RAJ SAKLA AGED ABOUT 40 YEARS A-504, SUAY GARDEN MUKUNDNAGAR PUNE-37

21. PRAVEEN SOHANRAJ SANKLA ALIS PRAVEEN KHUBILAL KAVEDIA AGED ABOUT 42 YEARS R/O PANKAWAR, PLOT NO.10 AKASH DARSHAN SOCIETY SALISBURY PARK GULTEKADI PUNE-411037

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22. MR SHANTILAL JAIN S/O LATE LALCHAND SANKHLA AGED ABOUT 70 YEARS RESIDING AT BOMMANAIMAIDAM GAUHATI-21

23. MR RAJKUMAR JAIN S/O MR SHANTILAL JAIN AGED ABOUT 45 YEARS RESIDING AT BOMMANAIMAIDAM GAUHATI-21

24. MR PAVAN KUMAR S/O MR SHANTILAL JAIN AGED ABOUT 38 YEARS RESIDING AT BOMMANAIMAIDAM GAUHATI-21

25. DHARMENDRA KUMAR JAIN S/O MR SHANTILAL JAIN AGED ABOUT 32 YEARS RESIDING AT BOMMANAIMAIDAM GAUHATI-21

26. MR RAJIV SANKHLA S/O LATE HANSRAJ SANKHLA AGED ABOUT 38 YEARS RESIDNG AT A T ROAD KAMRUP DISTRICT GAUHATI-1 ASSAM

27. MR AJAY SANKHLA S/O LATE DAULATRAJ SANKHLA AGED ABOUT 32 YEARS RESIDNG AT A T ROAD KAMRUP DISTRICT GAUHATI-1 ASSAM

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28. MR SUMATICHAND SANKHLA S/O LATE LALCHAND SANKHLA AGED ABOUT 51 YEARS RESIDING AT 3A, JANAKI NAGAR MAIN, 303, CHANDRAMANI APARTMENT INDORE-452001

29. MR VIKAS SANKHLA S/O MR SUMATICHAND SANKHLA AGED ABOUT 23 YEARS RESIDING AT 3A, JANAKI NAGAR MAIN, 303, CHANDRAMANI APARTMENT INDORE-452001 ... RESPONDENTS

(By Sri./Smt : R3-29 DISPENSED WITH)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227

OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE R-1 / 19TH

DEFENDANT TO DEPOSIT THE AMOUNT OF RS.11 CRORES ALONG

WITH ACCRUED INTEREST ON THE SAID RS.11 CRORES FROM THE

DATE OF TWO MOU'S AUGUST 2006 TILL DATE WHICH IS EXECUTED

BY R-1 / 19TH DEFENDANT MR. KISHANLAL KOTHARI AS PER ANN-AF

i.e. AS PER ORDERS ON I.A. NO. 13 & 26 DATED 6.2.2014, IN O.S.

8230/2007.

THESE WRIT PETITIONS COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY AFTER HAVING HEARD AND RESERVED FOR ORDERS ON 8.04.2015, THE COURT MADE THE FOLLOWING:

O R D E R

The parties in these writ petitions would be referred to

as per their ranking in the court below for the sake of

convenience.

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2. Writ Petition Nos.38077/2014 & 38460/2014 are

filed by the defendant No.19 in O S No.8230/2007 on the file

of the VII Addl. City Civil Judge, (CCHNo.19), at Bangalore

being aggrieved of the order dated 6.02.2014 passed on I A

Nos.13 & 26. W P No.47128/2014 is filed by the plaintiffs

No.11 to 13 and 15 to18 in the above suit seeking deposit of

the amount with interest.

3. The trial court by the impugned order directed the

19th defendant to deposit Rs.11 crores to the credit of O S

No.8230/2007. So far as payment of interest is concerned, it

is observed by the court below that the plaintiffs No.11 to 13

and 15 to 18 are at liberty to agitate the same at the time of

hearing on main suit on proper enquiry.

4. The facts of the case to be stated in brief are as

follows:

The plaintiffs filed the suit for the relief of partition and

separate possession, mesne profits and permanent injunction

restraining the defendants from alienating or dealing with the

same and further restraining them from constructing and

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changing nature of the suit lands etc., on the ground that the

suit schedule properties are the Hindu undivided family

properties of the plaintiffs and defendants 1 to 15 and

defendants have no exclusive right over the suit schedule

properties.

5. The defendant No.19 filed written statement

contending inter alia that the suit schedule properties are the

properties belonging exclusively to that defendant. The

properties are acquired prior and after registration of the

society. The said defendant has been in possession and

enjoyment of those lands. The plaintiffs have no right

whatsoever and they are strangers in respect of the suit

lands.

6. I A No.13 was filed by plaintiffs No.11 to 18 on

28.3.2011 under Section 151 CPC praying to direct the 16th

defendant to deposit a sum of Rs.11 crores to the credit of O

S No.8230/2007 on the file of City Civil Judge, Bangalore

City, Bangalore. I.A. No.26 was filed by the plaintiffs No.11 to

13 and 15 to18 on 26.8.2013 under Section 151 CPC seeking

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to direct the 19th defendant to deposit the aforesaid amount

with interest to the credit of O S No.8230/2007. IA No.26

came to be filed after the order passed by this Court in W P

No.10097-10101/2012 (GM-CPC) dated 23.07.2013

remanding the matter in I A No.XIII with a direction to afford

an opportunity to file objections by defendants 17 and 19 and

dispose of the same in accordance with law. In the

meantime, defendant No.19 came to be impleaded by the

order of the trial court dated 29.1.2013 on I A No.18 filed

under Order 1 Rule 10 CPC by the plaintiffs 11 to 18. This

Court by the order dated 10.6.2013 in W P No.12120/2013

(GM-CPC) directed to implead the 19th defendant as Secretary

of Bangalore Gorakshana Society. Therefore, I A Nos.13 & 26

are filed by the plaintiffs as aforesaid for the relief of direction

to the defendant No.19 to deposit the amount with interest.

7. It is stated in the affidavits filed in support of the

applications that the defendant No.19 has no exclusive rights

or authority to enter into joint development agreement with

17th defendant in respect of the existing rights of plaintiffs.

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By collusion and connivance with 17th defendant, the

defendant has resorted to only fraudulent, deceitful acts and

cheated the plaintiffs. The 19th defendant in collusion with

the first defendant created a joint developmental agreement

with the 17th defendant and entrusted the joint family lands,

which are the subject matter of the suit behind the back of

the plaintiffs. The 19th defendant is not having any

semblance of right in respect of lands in question but created

two Memorandum of Understanding in August, 2006 and

received an amount of Rs.7,50,00,000/- as interest free

security deposit, out of which Rs.2,50,00,000/- is not

refundable and Rs.3,50,00,000/- as interest free security

deposit out of which Rs.1,15,00,000/- is non refundable.

Thus the 19th defendant is enjoying the said huge sum of

Rs.11 crores without any claim whatsoever on the lands

belonging to the plaintiffs. In Para-28 of the written

statement filed by the first defendant, it was stated that he

had entered into the joint development agreement with

defendant Nos.17 & 18 in the capacity as “kartha” of the

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family keeping in mind necessity of the family and also the

benefit of the family and the said statement made by the 1st

defendant is false, baseless and untenable statement as the

first defendant had not entered into joint developmental

agreement nor for the benefit of the joint family members but

for the benefit of first defendant alone. It is contended that

the defendant is alone enjoying the said substantial amount

in crores dishonestly by withholding the said amounts falsely

representing that he is the karta of M/s.Giridharilal & Sons

and as a GPA holder of other family members. The 19th

defendant has no right or authority to receive the huge

amount on the suit schedule ancesatral joint family property

of items 1 to 3 that too on the basis of created, manipulated,

fabricated and fraudulent two M.O.Us. of August, 2006.

8. It is further contended that the registered sale deeds

stand in the name of M/s.Giridharilal & Sons for the years

1934 to 1937 which establish that the suit schedule

properties are the ancestral joint family properties and the

rights, title, interest and lawful possession of the members of

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the joint family cannot be disputed by anybody including the

19th defendant. The said landed properties do not belong to

M/s.Bangalore Gorakshana Shala and also contends that

Giridharilal & Sons were in fact maintaining a Goshala of

their own in part of their land much prior to the very

existence of 19th defendant and the recitals of some of the sale

deeds mention such existence of the Goshala in the joint

family property and the said lands were mutated in the

revenue records in favour of M/s.Giridharilal & Sons.

9. It is further contended that in the affidavit sworn to

by Sri Kishanlal Kothari in support of I A No.7, there is an

admission with regard to the registered sale deeds of 1934 to

1937 standing in the name of M/s.Giridharilal & Sons and

therefore Sri Kishanlal Kothari cannot be permitted to make a

false claim on the suit schedule properties as Secretary of

M/s.Bangalore Gorakshana Shala, which exclusively and

absolutely belong to joint family members of M/s.Giridharilal

& Sons. The alleged representation of Mr..Kishanlal Kothari

representing as Secretary of Gorakshana Shala came into

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existence only in the year 1940. The 19th defendant is

enjoying Rs.11 crores along with interest since August, 2006

without any right to retain that amount. Therefore, the

plaintiffs filed the aforesaid two interlocutory applications for

the reliefs as mentioned above.

10. The defendant No.19 filed objections denying the

averments made by the plaintiffs in the affidavits filed in

support of the applications. The first defendant has stated in

Para-28 of the written statement that he has entered into

joint development agreement in the capacity of kartha of the

family for necessity and benefit of the family. The plaintiffs

have no right over the suit schedule properties. It is not a

joint family property and property belongs to him. There are

more than 1000 cows requiring lot of money for maintenance.

It is contended that the agreement is between the owner of

the property and a developer. Moreover, when the agreement

has been terminated, question of deposit of money does not

arise. Only cheque for Rupees Six crores has been encashed.

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As the agreement stands terminated, the applications are not

maintainable and prays for dismissal of the applications.

11. I have heard the learned counsel for the parties and

perused the entire records.

12. Sri Tarakram, learned Senior Counsel appearing for

the petitioner in the first two writ petitions, submitted that

the impugned order is illegal. There is non application of

mind and non consideration of materials on record by the

court below. Many of the documents and many of the orders

are not taken into consideration. When the agreement stood

terminated, the question of deposit of money does not arise.

The plaintiffs are not parties to the Joint Development

Agreement. The question of title is in serious dispute. When

the serious question of title is involved, the direction to

deposit is per se illegal. Anraj does not claim ownership and

therefore it is not open for the plaintiffs to claim ownership of

the properties. The joint family of Giridharilal & sons were

not the owners of the suit schedule property. Anraj Sankhla

S/o Giridharilal or Giridharilal did not own these lands. In

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the various sale deeds it is mentioned that the lands are

purchased to look after cows. Hence plaintiffs cannot have

any right over these lands. During the life time of Anraj

Sankhla he never claimed any right over these lands. The

goshala has nothing to do with the family of Giridharilal

and/or Anraj. The cheques have been encashed by Bangalore

Gorakshana Shala only to the tune of Rs.6 crores. The

impugned direction is impossible to be complied.

13. The learned senior counsel has relied upon the

decisions in Ramji Gir & others v. Elaichi Devi, reported in AIR

1974 Patna 280 (V.61,C 78) to contend that plaintiff suing for

a share in family estate cannot be granted his share before

his rights have been determined in the suit brought by him.

The learned senior counsel also relied upon another decision

in Mulimani Sanna Basavarajappa v. Basavannappa, reported

in AIR 1959 Mysore 152 (Vol.46, C.60)(1) to contend that when

the claim made in the plaint is contested, the court has no

inherent jurisdiction to grant relief until that claim is

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determined on its merits and that can only be by the final

hearing in the suit.

14. On the other hand, the learned counsel for

respondents No.11 to 18 submitted to dismiss the writ

petition contending that the 19th defendant has received huge

sums of money on the suit schedule properties without any

manner of right and what the plaintiffs sought was only to

deposit the amount to the suit account and not to pay the

amount to them and therefore there is no illegality or

irregularity in the impugned order. The learned counsel

placed reliance on the decision in Syndicate Bank v. Estate

Officer & Manaager, A.P.I.I.C. Ltd., & Ors. reported in AIR

2007 SC 3169 Para-44 which reads thus:

“44. There cannot be any doubt whatsoever that in

absence of a registered deed of sale, the title to the

land does not pass, but then what would not be

conveyed is the title of the estate and not the

allotment and possession itself”.

27

15. After hearing the learned counsel for the parties, the

point that arises for consideration in these writ petitions is,

whether the impugned order calls for interference under

Article 227 of the Constitution? My answer would be in the

negative for the following reasons:

16. The jurisdiction of this Court under Article 227 of

the Constitution is a supervisory jurisdiction, which has to be

exercised sparingly and only in appropriate cases to keep the

subordinate courts within the bounds of their authority.

Such a power cannot be exercised to influence subordinate

judiciary to pass any order or judgment in a particular

manner. Keeping this limitation on scope of interference with

the interlocutory orders of the courts below in mind, the

impugned order has to be examined.

17. I A No.13 was initially filed against defendant No.16

and as stated earlier, now the 19th defendant Kishanlal

Kothari has represented Bangalore Gorakshana Shala as its

Secretary. It is the case of plaintiffs No.11 to 13 and 15 to 18

that the schedule landed properties are exclusively belonging

28

to M/s.Giridharilal & Sons. These properties are ancestral

properties of plaintiffs. The said landed properties are not

belonging to Kishanlal Kothari i.e., defendant No.19. It is also

the further case of the plaintiffs that Giridharilal & Sons were

maintaining a Gorakshana Shala in the part of their land,

which is in existence prior to the one claimed by defendant

No.19. The sale deeds are standing in the name of

Giridharilal and Sons, which mention the existence of

Gorakshana Shala in the family property. The record of

rights, mutation entries are in the name of Giridharilal and

sons which establish the said landed properties are

exclusively belong to Giridharilal & Sons. The RTC entries

also disclose that the suit schedule properties are joint family

ancestral properties. The sale deeds were obtained during the

year 1934 to 1937 boundaries shown in the plaint schedule

tally with the boundaries of the sale deeds. The sale

consideration was paid by Giridharilal & Sons on behalf of the

joint family.

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18. It is further case of the plaintiffs that 19th defendant

falsely represented and without having any authority has

executed memorandum of understanding in August, 2006 in

favour of 17th defendant relating to joint family lands of

plaintiffs and other sharers and received Rs.11 crores. The

said act is fraudulent and would cause wrongful loss to the

plaintiffs and he has collected non-refundable deposits

stating that he (Kishanlal Kothari) is competent to execute

MOUs. as owner of Bangalore Gorakshana Shala and

collected the amounts without documents of title in favour of

M/s.Bangalore Gorakshana Shala on the suit schedule

properties.

19. The 19th defendant contends that Gorakshana Shala

is claiming rights through document of Kishanlal S/o

Jawarmel to Misrilal S/o Herachand and Deelraj S/o

Charanraj as transferors and Bangalore Gorakshana Shala

Nekkondi as transferee vide transfer deed dated 7.4.1941.

According to the plaintiffs, this deed is created document

fraudulently, no such registered conveyance title deeds

30

existed in favour of 19th defendant. The registered sale deeds

of 1934 to 1939 of Giridharilal & sons prevail over the

transfer deed dated 7.4.1941.

20. It is submitted that the 19th defendant has made

another MOU in August, 2006 with false representation that

Gorakshana Shala is the absolute owner of Sy.Nos.64, 108

and 109 measuring 12 acres and taken Rs.7.5 crores on the

suit lands.

21. Thus the defendant No.19 claims right on the basis

of transfer deed dated 7.4.1941. It could be gathered from

the records that claim of Kishanlal Kothari was rejected by

the Tahsildar in RRT proceedings and the same was

confirmed in revision petition, which has become final, not

being challenged further. On the transfer deed there is no

trace of title as there is no registered sale deed in favour of

defendant No.19. Therefore, the joint development agreement

and MOUs. are without authority of law as Kishanlal Kothari

has not shown his right over suit schedule properties through

proper conveyance deed.

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22. It is the case of the 19th defendant that there is

rescinding of contract or altering the terms of original

contract. In the absence of proper document in this regard

between the parties who were earlier entered into contract,

such a contention of the 19th defendant as to cancellation of

contract cannot be believed, which view is well supported by

the decision in AIR 2007 SC 3169 referred to supra.

23. It is the contention of the petitioner - 19th defendant

that when the title itself is in dispute, the plaintiffs are not

entitled for any interim relief. The agreement is between the

owner of the property and developer, the plaintiffs have no

right to seek deposit of the amount. The 19th defendant has

failed to prove prima facie at least, his right over the suit

schedule properties. The court below has considered the

documents placed on record such as sale deeds dated

1.5.1935, 2.10.1936, 27.7.1936, 5.9.1934, 5.9.1934,

21.9.1933, 10.7.1936, 30.1.1939, 16.10.1937, 7.2.1934,

18.10.1935 and also the record of rights with reference to suit

schedule Sy.Nos.42/4, 51, 52, 53, 55, 57, 64, 65, 66, 96,

32

98/1-2, 99, 100, 101/1-2-3, 108, 109 and found that RTCs

in respect of Sy.No.57 & Sy.No.64 are standing in the name of

Giridharilal and Sons and Sy.No.108 is standing in the name

of Gorakshna Sabhe Kartha S Giridharilal & Sons and

Sy.No.109 is also standing in the name of S Giridharilal &

Sons Gorakshana Sabhe Kartha. In the MOUs. the 19th

defendant is referred as its Secretary and Chairman of sub

committee as owners. The properties involved are

Sy.Nos.108, 109 of Mahadevapura and Sy.No.64 of

Doddanekkundi approximately measuring 12 acres. The

said properties are offered for development and developer has

agreed to develop by constructing a multi storied commercial

complex. The recitals in the said MOUs. showed receipt of

Rs.11 crores by the 19th defendant representing as secretary

and Chairman of Sub-Committee pertaining to M/s.Bangalore

Gorakshana Shala through cheques out of which certain

amount is refundable and certain amount is non-refundable.

24. From the documents, the court below prima facie

found that the suit schedule properties are the joint family

33

properties of plaintiffs and other sharers and the said

properties are purchased by S Giridharilal and Anraj in the

years 1934, 1936 and 1939. The said sale deeds are acted

upon and entries are mutated in the name of Giridharilal &

Sons in the Record of Rights. The plaintiffs have filed the suit

for partition and separate possession. The schedule

properties are not standing in the name of defendant No.19.

The transfer deed claimed by the 19th defendant is disputed

by the plaintiffs. The contention of the plaintiffs is that

M/s.Giridharilal & Sons had established Goshala in the land

prior to the existence of M/s.Bangalore Gorakshana Shala.

M/s.Bangalore Gorakshana Shala have no right, claim or

interest on any inch of the land in Sy.No.57, 64, 108 and 109.

In the circumstances, it is clear that defendant No.19 is not

entitled to retain Rs.11 crores received by him under the two

MOUs. on the suit schedule properties. According to the

plaintiffs they have undivided shares in the suit schedule

properties whereas 19th defendant contends that the suit

schedule properties are not belonging to the said Giridharilal

34

and Sons or Anraj Shankla and properties are exclusively

belong to Bangalore Gorakshana Shala, which has to be

thrashed out at the full-fledged trial of the suit.

25. The defendant No.19 has not produced any material

to show that he is authorized to receive the said money and to

retain and enjoy the same to others’ exclusion. It seems the

defendant No.1 in collusion with his daughter and sons for

their illegal gain in collusion with defendant No.19 created

two MOUs. for which the plaintiffs are not the signatories.

26. The plaintiffs No.11 to 13 and 15 to 18 are able to

show prima facie that the lands involved in the two MOUs.

are some of the suit schedule properties and the defendant

No.19 has not made it clear at this stage as to how he is

entitled to retain the sum received there under to himself for

the exclusion of others. It is also noticed that the 19th

defendant has issued cheque in favour of M/s.Bagmani

Constructions on 1.9.2013 for Rs.20 lakhs, which further

evidences receipt of Rs.11 crores by the 19th defendant.

35

27. In the circumstances, I am of the considered view

that the court below has considered the entire matter in

proper perspective and directed the 19th defendant to deposit

Rs.11 crores to the suit account, which does not suffer from

any illegality or any material irregularity so as to call for

interference of this court under Article 227 of the

Constitution.

28. The connected writ petition No.47128/2014 (GM-

CPC) is filed by the plaintiffs being aggrieved of that portion of

the impugned order which directed prayer relating to payment

of interest on the aforesaid deposit amount has to be agitated

at the time of hearing on the main suit by the plaintiffs. It is

to be mentioned here that no person can be allowed to enrich

himself wrongfully on the amount of others. For the period

for which the 19th defendant held the amount, he is liable to

pay interest, which can be worked out at the time of final

adjudication of rights of the parties. In that view of the

matter, the court below is justified in reserving liberty to the

plaintiffs to agitate the same at the final hearing of the suit.

36

Therefore, that part of the impugned order also cannot be

faulted to call for interference by this Court and accordingly

this writ petition is to be disposed of reserving liberty to the

parties to agitate the same at the time of final hearing of the

suit.

29. The reliance placed by the learned senior counsel

appearing for the petitioner in the first two writ petitions on

the two decisions in AIR 1974 Patna 280 (V.61,C 78) and AIR

1959 Mysore 152 (Vol.46, C.60)(1), though there is no dispute

as to the ratio laid down therein, the said decisions cannot be

pressed into service to the facts of the case on hand for the

simple reason that no share in favour of any party is granted

and it is only a direction to deposit the amount to the suit

account in order to make sure that the said amount with

interest is available when the rights are settled at the final

disposal of the suit by the court below.

30. The learned counsel for the defendants also

submitted that certain amount is already in Fixed Deposit.

37

Therefore, it makes no difference to keep the amount in the

suit account.

Accordingly, for the aforesaid reasons, W P

Nos.38077/2014 & 38460/2014 (GM-CPC) are rejected and

W P No.47128/2014 (GM-CPC) is disposed of. The 19th

defendant is granted four weeks time to deposit the amount of

Rs.11 crores to the suit account, which shall be kept in Fixed

Deposit initially for one year and thereafter extend the same

from time to time till disposal of the suit.

Sd/- JUDGE

akd