Karnataka High Court
Sri D M Doddamuniyappa vs Sri Krishnappa on 22 January, 2021
Author: S R.Krishna Kumar
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 22ND DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR
MISCELLANEOUS FIRST APPEAL No.2727/2020
BETWEEN:
1. SRI. D.M. DODDAMUNIYAPPA,
AGED ABOUT 62 YEARS,
S/O LATE DODDA MUNIYAPPA,
2. SRI. D.M. MUNIYAPPA
@ CHIKKA MUNIYAPPA,
AGED ABOUT 60 YEARS,
S/O LATE DODDA MUNIYAPPA,
3. SRI. D.M. RAMAKRISHNA,
AGED ABOUT 57 YEARS,
S/O LATE DODDA MUNIYAPPA,
4. SRI. D.M. VENKATESH,
AGED ABOUT 55 YEARS,
S/O LATE DODDA MUNIYAPPA,
5. SRI. D.M. CHANDRAPPA,
AGED ABOUT 51 YEARS,
S/O LATE DODDA MUNIYAPPA,
6. SMT. D.M. SAROJAMMA,
AGED ABOUT 49 YEARS,
D/O LATE DODDA MUNIYAPPA,
7. SRI. D.M. KUMAR,
AGED ABOUT 47 YEARS,
S/O LATE DODDA MUNIYAPPA,
2
8. SRI. D.M. MANJUNATHA,
AGED ABOUT 45 YEARS,
S/O LATE DODDA MUNIYAPPA,
SL. NOS. 1 TO 8 ARE R/AT
SHETTIHALLI,
JALAHALLI WEST,
BENGALURU - 560 015.,
9. SMT. PARVATHAMMA,
AGED ABOUT 70 YEARS,
W/O LATE CHIKKA MUNIYAPPA,
10. SMT. PREMA,
AGED ABOUT 45 YEARS,
D/O LATE CHIKKA MUNIYAPPA,
11. SRI. NAGESHA,
AGED ABOUT 42 YEARS,
S/O LATE CHIKKA MUNIYAPPA,
12. SRI. CHINNAPPA,
AGED ABUT 40 YEARS,
S/O LATE CHIKKA MUNIYAPPA,
13. SRI. SRINVAS,
AGED ABOUT 58 YEARS,
S/O SRI. CHOWDAPPA,
SL.NOS. 9 TO 13 ARE R/AT
ABBIGERE VILLAGE,
CHIKKABANAVARA POST,
BENGALURU - 560 090.
14. SMT. RATHNAMMA,
AGED ABOUT 42 YEARS,
W/O LATE VENKATARAMANAPPA,
15. SRI. MUNIRAJU,
AGED ABOUT 35 YEARS,
S/O LATE VENKATARAMANAPPA,
3
16. SRI. SURESHA
AGED ABOUT 28 YEARS,
S/O LATE VENKATARAMANAPPA,
17. SRI. MANJUANTHA,
AGED ABOUT 28 YEARS,
S/O SRI. VENKATARAMANAPPA,
SL.NOS. 14 TO 17 ARE R/AT
AT SHETTIHALLI VILLAGE,
JALAHALLI POST,
BENGALURU.
...APPELLANTS
(BY SRI. K. SUMAN, ADVOCATE)
AND:
1. SRI. KRISHNAPPA,
AGED ABOUT 78 YEARS,
S/O LATE CHINNAPPA,
2. SMT. K. VENKATALAKSHMAMMA,
AGED ABOUT 47 YEARS,
D/O SRI. KRISHNAPPA,
3. SRI. K. APPAJI,
AGED ABOUT 42 YEARS,
S/O SRI. KRISHNAPPA,
4. SRI. K. VENKATESHA,
AGED ABOUT 40 YEARS,
S/O SRI. KRISHNAPPA,
5. SRI. LOKESHA,
AGED ABOUT 35 YEARS,
S/O SRI. KRISHNAPPA,
4
6. SRI. LAKSHMINARAYANA,
AGED ABOUT 61 YEARS,
S/O CHOWDAPPA,
7. SRI. D.M. GANGADHARAIAH,
AGED ABOUT 53 YEARS,
S/O LATE DODDA MUNIYAPPA,
ALL RESIDING AT
ABBIGERE VILLAGE,
CHIKKABANAVARA POST,
BENGALURU - 560 090.
... RESPONDENTS
(BY SRI. S. MOHAN, ADVOCATE FOR R1 AND R4.
SRI. N.JAGADISH BALIGA, ADVOCATE FOR R3.
NOTICE TO R2, R5 AND R7 - HELD SUFFICIENT.
R6 - SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER ORDER 43 RULE 1(R) OF CPC, AGAINST THE
ORDER DATED 07.02.2020 PASSED ON I.A.NO.4 IN
O.S.NO.7512/2015 ON THE FILE OF THE VII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU (CCH NO.19) DISMISSING I.A.NO.4
FILED UNDER ORDER 39 RULE 1 AND 2 READ WITH
SECTION 151 OF CPC.
THIS MISCELLANEOUS FIRST APPEAL COMING
ON FOR ADMISSION, THIS DAY, THE COURT
DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal by the plaintiffs in
O.S.No.7512/2015 is directed against the impugned
order dated 07.02.2020 whereby the application of
temporary injunction filed by the appellants was
rejected by the Trial Court.
2. Heard the learned counsel Sri. K.Suman
for appellants, the learned counsel Sri. S.Mohan for
respondent Nos.1 and 4 and the learned counsel
Sri. N.Jagadish Baliga for respondent No.3 and
perused the material on record. Respondent No.5-
Lokesha, having been served remained unrepresented
and not chosen to contest the appeal.
3. The material on record indicates that, the
appellant-plaintiffs instituted the aforesaid suit for
partition and separate possession of their alleged
share in the suit schedule property and for other
reliefs. In the first instance, the suit schedule
property comprised of only one item of immovable
property bearing Sy.No.4/2 measuring 16 guntas.
The appellants filed I.A.No.1 under Order 39 Rule 1
and 2 of CPC for order of temporary injunction
restraining the defendants from alienating and
encumbering the said item No.1 of the plaint schedule
property. The said application having been allowed
by the trial Court order dated 24.06.2016, the
defendants Nos.1 and 4 preferred an appeal in MFA
No.5981/2016 before this Court. By order dated
23.03.2017, this Court disposed of the said appeal
inter alia holding as under:
"8. In view of the rival submissions
made by the learned counsel for the parties,
it is clear that on the one hand, the plaintiffs
claim that the suit schedule property is joint
family property and on the other hand, the
defendants claim that suit schedule property
is a self acquired property. Whether the suit
schedule property is a self acquired property
or joint family property as claimed by the
parties is to be adjudicated by the trial Court
after a full pledged trial."
4. It can be seen from the aforesaid order
passed by this Court that, this Court taking note of
the fact that the question whether the property was a
joint family property as alleged by the plaintiffs or
whether it is self-acquired property as alleged by the
defendants is to be adjudicated only after full fledged
trial and that it would be just and expedient to and
direct the parties not to alienate and encumber the
item No.1 of the plaint schedule property, pending
disposal of the suit. This Court also directed the trial
Court to expedite the final disposal of the suit subject
to co-operation of all parties.
5. Material on records also indicate that,
subsequently, the plaintiffs got the plaint amended
including yet another property i.e., Sy.No.26/5
measuring 24.5 guntas as item No.2 of plaint
schedule property. The defendants filed their
additional written statement to the said amended
plaint inter alia, contending that, even this item No.2
of the plaintiff schedule property bearing Sy.No.26/5
is also the separate and self-acquired property of the
defendants and that the suit of the plaintiff is in
respect of this property is also liable to be dismissed.
6. In the meanwhile, plaintiff filed application
in I.A.No.4 under Order 39 Rules 1 and 2 R/W 151 of
CPC seeking an order of temporary injunction against
defendants Nos. 1 to 5 from alienating or creating any
encumbrance in the said item No.2 of the plaint
schedule property. The said application having been
opposed by the defendants Nos.1 to 5 the trial Court
proceeded to pass impugned order, rejecting the said
application, aggrieved by which the plaintiffs are
before this Court by way of the present appeal.
7. As noticed above, before plaintiffs got
amended the plaint, the suit comprised of only one
item of suit schedule property. Having regard to the
disputed question of fact and law which arose
between the parties with regard to the item No.1 of
the plaint schedule property, this Court was of the
opinion that, it was necessary to direct the parties not
to alienate and encumber item No.1 of the
plaintschedule property, pending disposal of the suit.
Under such circumstances, in the light of the identical
and similar defense put forth by the defendants in
respect of item No.2 of plaintschedule property also, I
am of the considered opinion that trial Court was not
justified in rejecting the application I.A.No.4 filed by
the plaintiffs.
8. In the result, I pass the following
ORDER
(i) Appeal is allowed. Subject to the following
directions.
(ii) Impugned order dated 07.02.2020 is
are restrained from alienating or creating
any encumbrance in respect of item No.2
of the plaint schedule property bearing
Sy.No.26/5 measuring 24½ guntas
situated at Abbigere Village,
Yeshwanthpura Hobli, Bengaluru North
Taluk, pending disposal of the suit.
(iii) Having regard to the fact that suit is of the
year 2015, coupled with the fact that the
plaintiff included item No.2 of plaint
schedule property only subsequent to
dismissal of MFA No.5981/2016, I deem it
just and proper to direct the trial Court to
dispose of the suit as expeditiously as
possible and at any rate not later than a
period of six months from the date of
receipt of copy of this order.
Sd/-
JUDGE
gpg/-
