Karnataka High Court
Smt Lakkamma vs Mallappa on 1 December, 2021
Bench: K.S.Mudagal
M.F.A.NO.753/2014
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF DECEMBER 2021
BEFORE
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
MISCELLANEOUS FIRST APPEAL NO.753/2014(CPC)
BETWEEN:
1. Smt.Lakkamma
W/o Late Sanjeevaiah
Aged about 73 years
2. Maruthi
S/o Late Sanjeevaiah
Aged about 45 years
3. Krishna Murthoy
S/o Late Sanjeevaiah
Aged about 35 years
4. Manjunatha
S/o Late Sanjeevaiah
Aged about 35 years
5. Kantharaja
S/o Late Sanjeevaiah
Aged about 32 years
All are r/at No.3, Nagarabhavi
Main Road, Bangalore - 560 072
Presently R/At No.15, Vinyas Apartment
Gnanabharathi main Road
Nagarabhavi Village
Bangalore - 560 072 ... APPELLANTS
(BY SRI.G.Balakrishna Shastry, ADV.)
AND:
M.F.A.NO.753/2014
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1. Mallappa
S/o Late Kariyanna
Since dead by his LRs
1(a) Smt.Narasamma
W/o late Mallappa K
Aged about 61 years
R/at No.3, Nagarabhavi
Main Road
Bangalore - 560 072
1(b) Smt.Anusuya
W/o Lakshminarayana
D/o D Mallappa
Aged about 43 years
R/at No.16, Nagarabhavi
Bangalore - 560 072
1(c) Smt.Kariyamma
D/o Late Mallappa
W/o Balakrishna
Aged about 43 years
R/at No.18, Nagarabhavi
Bangalore - 560 072
1(d) Smt.Parvathamma
D/o Late Mallappa
Aged about 38 years
R/o Hoysala Nagar
Nagarabhavi
Bangalore - 560 072
1(e) Sri.Maruthi
S/o Late Mallappa
Aged about 31 years
R/at No.3, Nagarabhavi
Main Road
Bangalore - 560 072
1(f) Smt.Kamala
D/o Late Mallappa
W/o Lokesh
Aged about 33 years
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1(g) Smt.Gangamma
D/o late Mallappa
W/o Saiprasad
Aged about 33 years
1(h) Smt.Kavitha
D/o K.Mallappa
Aged about 41 years
Appellant Nos.1(f) to (h) are
R/at No.23, Nagarabhavi Main Road
Bangalore - 560 072
1(i) M.Narayanappa
S/o Muniyappa
Aged about 57 years
1(j) N.Vinay Kumar
S/o Narayanappa
Aged about 34 years
1(k) N.Venugopal
S/o Narayanappa
Aged about 30 years
Appellant Nos.1(i) to (k) are
R/at No.292, 1st Main,
1st Cross, Nagarabhavi
Bangalore - 560 072
2. Kariyappa
S/o Late Kariyanna
Aged bout 36 years
R/at No.34, Shanthinikathan
1st Sector, Nagarabhavi
Bangalore - 560 072
3. Chikamallappa
S/o Late Kariyanna
Since Dead by his Lrs.
3(a) Smt.Munilakshmamma
W/o Late Chikkamallappa
Aged about 63 years
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3(b) Hanumegowda
S/o Late Chikkamallappa
Aged about 44 years
3(c) Shivaraj
S/o Late Chikkamallappa
Aged about 43 years
3(d) Smt.Manjula
W/o Sri.Narasimha Murthy
D/o Chikkamallappa
Aged about 38 years
3(a) to (d) are r/at No.352
7th "A" Cross, 4th Phase
Vinayaka Layout, Nagarabhavi
II Stage, Bangalore - 560 072
4. Ramaiah
S/o Late Kariyanna
Aged about 63 years
No.44, 7th Cross, Hoysalanagar
Nagarabhavi
Bangalore - 560 027
5. Smt.Puttamma
D/o Kariyanna
W/o Muddanna
Aged about 79 years
R/at C/o Huchakariyappa
Lingammanahalli Palya
K.G.Temple Kadaba Hobli
Gubbi Taluk
Tumkur District - 572 216
6. Smt.Lakshmamma
D/o Kariyanna
W/o Nanjappa
Aged about 59 years
R/at No.1, Krishnapura
Dabaspet Post
Nelamangala Taluk
Bangalore District - 562 123
7. Lakshminarayan
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S/o C.T.Kalaiah
Aged about 59 years
R/at No.37, Moodalapalya
Shakthi Garden
Bangalore - 560 027 ... Respondents
(BY SRI.S.D.N. Prasad, advocate for R2,
R3(c), R4 and R6;
Vide order dated:13.11.2018 appeal against
R1(A to C), R1 (E to H) Stand Dismissed;
R1(D) (I) (J)(K) are served;
R3(A)(B) & (D) are served
R5 and R7 are served)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(R) OF
CPC, PRAYING TO SET ASIDE THE ORDER DATED 22.10.2013
PASSED ON IA NO.11 IN O.S.NO.3976/2005 ON THE FILE OF
THE 22ND ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BANGALORE, DISMISSING THE IA NO.11 FILED UNDER
ORDER 39, RULES 1 AND 2 OF CPC.
THIS MFA COMING ON FOR FINAL HEARING THIS DAY,
THE COURT THROUGH VIDEO CONFERENCE DELIVERED THE
FOLLOWING:
JUDGMENT
Aggrieved by the order of rejection of their
application for temporary injunction, the plaintiffs have
preferred this appeal.
2. The plaintiffs filed O.S.No.3976/2005
against the defendants for partition and separate
possession of their one-fifth share in the suit schedule
properties, declaration that the WILL dated 08.05.1992
said to be executed by Gangamma in favour of
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defendant No.2 is null and void and for permanent
injunction.
3. The subject matter of the suit are the land
bearing Sy.No.1/5 measuring 2 acres 35 guntas of
Nagarbhavi village and land bearing Sy.No.1/7
measuring 28 guntas of Nagarbhavi village. Plaintiff
No.1, defendants No.1 to 6 are the sons and daughters
of Gangamma. Gangamma inherited the suit schedule
properties from her father.
4. During her life time, Gangamma,
Sanjeevaiah and others filed O.S.No.2443/1984 against
Kendriya Upadyayara Sangha and others for declaration
of their title and injunction. During the pendency of the
said suit Gangamma died. In the suit defendant No.2
claimed Gangamma has executed the WILL dated
19.06.1992, therefore, he has succeeded to her estate.
The said suit was disposed of on 24.02.2005 holding the
second defendant as the owner of the property.
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5. Against the said order Kendriya Upadyayara
Sangha and others preferred RFA No.671/2005 before
this Court. In that appeal, compromise was effected in
respect of 34 sites out of 61 sites. As per the said
compromise 34 sites carved out of the present suit
properties were given to the Society. Therefore, the
appeal was partially disposed as per the compromise
and for rest of the claim the appeal is still pending. The
Society has sold the sites given to their share to several
other third parties.
6. The seventh defendant filed
O.S.No.1049/2010 against defendant No.2 claiming that
he has executed General Power of attorney dated
08.08.2005 and on that basis he has acted upon. In the
said suit, he sought injunction against cancellation of
the said power of attorney. It is submitted that the said
suit was dismissed and now the matter is pending
before this Court in RFA No.1508/2015. That matter is
now connected to RFA No.671/2005.
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7. Such being the facts, plaintiffs in
O.S.No.3976/2005 filed IA No.10/2012 and 11/2012
seeking injunction to restrain defendant No.7 or
anybody claiming through him from alienating the
schedule property and from changing the nature of the
suit property.
8. The trial Court by the impugned order
rejected the application on the ground that the records
produced show that the suit properties have lost the
nature of agricultural lands and by virtue of general
power of attorney executed by the second defendant in
favour of the 7th defendant several sites have been sold
and third party rights have been created. The trial
Court further held that in view of the material before it,
the plaintiffs have failed to make out the prima facie
case and rejected the application.
9. Admittedly in RFA No.671/2005 compromise
is entered into and 34 sites out of 61 sites were given to
Society. Admittedly the Society has sold those sites to
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several third parties who are not parties to the
proceedings before the trial Court.
10. The trial Court in O.S.No.2447/1984
declared the second defendant to be the owner of the
property. The said judgment and decree is pending in
appeal before this Court. It is submitted that before the
trial Court the matter is posted for final arguments.
Having regard to the said circumstances, the trial Court
was wholly justified in holding that the plaintiffs have
failed to make out prima facie case.
This Court does not find any ground to interfere
with the order. Therefore, the appeal is dismissed.
Sd/-
JUDGE
akc
