Smt. Mangala W/O. Gurudev Badiger vs Shri. Venkappa S/O. Revappa ...
2022 Latest Caselaw 3091 Kant

                             :1:


           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

     DATED THIS THE 23rd DAY OF FEBRUARY, 2022

                           BEFORE

         THE HON'BLE MR. JUSTICE R. NATARAJ

               MFA NO.104113/2018 (CPC)
               C/W MFA NO.104112/2018

IN MFA NO.104113/2018:

BETWEEN:

SMT. MANGALA W/O. GURUDEV BADIGER
AGE:60 YEARS, OCC:HOUSEHOLD WORK,
R/O. OPPOSITE DVHS, H.NO.20/B,
SINDHU NAGAR CURTI,
PONDA, GOA-403401.
                                              ...APPELLANT
(BY SRI.ARUN L NEELOPANT, ADV.)

AND:

1.     SHRI. VENKAPPA S/O. REVAPPA MALDINNI
       AGE:69 YEARS, OCC:BUSINESS,
       R/O. COURT CIRCLE, TALUKA GOKAK,
       DIST:BELAGAVI-591307.

2.     SHRI DYAMANNA S/O. REVAPPA MALDINNI
       AGE:67 YEARS, OCC:MUSIC TEACHER,
       R/O. VIVEKANADA NILAYA,
       BASAVA NAGAR II CROSS,
       TALUKA:GOKAK, DIST:BELAGAVI-591307.

3.     SHRI BABURAO S/O. REVAPPA MALDINNI
       AGE:65 YEARS, OCC:PHOTOGRAPHER,
       R/O. CHAMUNDI COMPLEX,
       NEAR APSARA KHOOT, TALUKA:GOKAK,
       DIST:BELAGAVI-591307.
                              :2:

4.   SHRI RAVINDRA S/O. REVAPPA MALDINNI
     AGE:50 YEARS, OCC:BUSINESS,
     R/O. CHAMUNDI COMPLEX,
     NEAR APSARA KHOOT, TALUKA:GOKAK,
     DIST:BELAGAVI-591307.

5.   SMT PRAMILA W/O. DR NINGAPPA BADIGER
     AGE:72 YEARS, OCC:HOUSEGHOLD WORK,
     R/O. NEAR HUKKERI COURT CIRCLE,
     OPP.PWD IB, HUKKERI,
     DIST:BELAGAVI-591309.

6.   SMT SHOBHA W/O. ISHWAR PATTAR
     AGE:62 YEARS, OCC:HOUSEHOLD WORK,
     R/O. NEAR LAKSHMI TEMPLE,
     2ND CROSS, GOKAK,
     TALUKA GOKAK, DIST:BELAGAVI-591307.

7.    SMT VIJAYALAXMI W/O. DR VIJAY BALAKUNDRI
      AGE:55 YEARS, OCC:BUSINESS,
      R/O. CORPORATION OF CITY OF BELAGAVI,
      OPPOSITE GANESH TEMPLE,
      SHAHUNAGAR, BELAGAVI-590010.
                                              .....RESPONDENTS
(BY SRI.MRUTYUNJAYA TATA BANGI, ADV. FOR R1 & R2;
 R3 TO R7 ARE SERVED)

      THIS APPEAL IS FILED UNDER ORDER 43 RULE 1(r) OF THE
CODE OF CIVIL PROCEDURE 1908, AGAINST THE ORDER DATED
12.09.2018 PASSED IN 268/2018 ON THE FILE OF THE I ADDITIONAL
SENIOR CIVIL JUDGE, GOKAK, DISMISSING THE IA NO.II FILED
UNDER ORDER 39 RULE 1 AND 2 R/W SEC.151 OF CPC.

IN MFA NO.104112/2018:

BETWEEN

SMT. MANGALA W/O. GURUDEV BADIGER
AGE:60 YEARS, OCC:HOUSEHOLD WORK,
R/O. OPPOSITE DVHS, H.NO.20/B,
SINDHU NAGAR CURTI, PONDA,
GOA-403401.
                                                 ...APPELLANT
(BY SRI. ARUN L NEELOPANT, ADV.)
                              :3:

AND:

1.     SHRI. VENKAPPA S/O. REVAPPA MALDINNI
       AGE:69 YEARS, OCC:BUSINESS,
       R/O. COURT CIRCLE, TALUKA GOKAK,
       DIST:BELAGAVI-591307.

2.     SHRI DYAMANNA S/O. REVAPPA MALDINNI
       AGE:67 YEARS, OCC:MUSIC TEACHER,
       R/O. VIVEKANADA NILAYA,
       BASAVA NAGAR II CROSS,
       TALUKA:GOKAK, DIST:BELAGAVI-591307.

3.     SHRI BABURAO S/O. REVAPPA MALDINNI
       AGE:65 YEARS, OCC:PHOTOGRAPHER,
       R/O. CHAMUNDI COMPLEX,
       NEAR APSARA KHOOT, TALUKA:GOKAK,
       DIST:BELAGAVI-591307.

4.     SHRI RAVINDRA S/O. REVAPPA MALDINNI
       AGE:50 YEARS, OCC:BUSINESS,
       R/O. CHAMUNDI COMPLEX,
       NEAR APSARA KHOOT, TALUKA:GOKAK,
       DIST:BELAGAVI-591307.

5.     SMT PRAMILA W/O. DR NINGAPPA BADIGER
       AGE:72 YEARS, OCC:HOUSEGHOLD WORK,
       R/O. NEAR HUKKERI COURT CIRCLE,
       OPP.PWD IB, HUKKERI,
       DIST:BELAGAVI-591309.

6.     SMT SHOBHA W/O. ISHWAR PATTAR
       AGE:62 YEARS, OCC:HOUSEHOLD WORK,
       R/O. NEAR LAKSHMI TEMPLE,
       2ND CROSS, GOKAK,
       TALUKA GOKAK, DIST:BELAGAVI-591307.

7.    SMT VIJAYALAXMI W/O. DR VIJAY BALAKUNDRI
      AGE:55 YEARS, OCC:BUSINESS,
      R/O. CORPORATION OF CITY OF BELAGAVI,
      OPPOSITE GANESH TEMPLE,
      SHAHUNAGAR, BELAGAVI-590010.
                                               ....RESPONDENTS
(BY SRI. MRUTYUNJAY TATA BANGI, ADV. FOR R1 & R2;
 R3 TO R7 ARE SERVED)
                                :4:

      THIS APPEAL IS FILED UNDER ORDER 43 RULE 1(r) OF THE
CODE     OF   CIVIL   PROCEDURE,     AGAINST    THE    ORDER
DATED:12.09.2018, PASSED IN O.S. NO. 268/2018 ON THE FILE OF
THE I ADDITIONAL SENIOR CIVIL JUDGE, GOKAK, DISMISSING THE IA
NO.II BY THE PLAINTIFF UNDER ORDER 39 RULE 1 AND 2 R/W
SEC.151 OF CPC.

     THESE APPEALS COMING ON FOR FURTHER ORDERS, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                           JUDGMENT

These appeals are filed by the plaintiff in O.S.No.268/2018

pending trial before the Principal Senior Civil Judge, Gokak

(henceforth referred to as 'the Trial Court') challenging the

correctness of the Order dated 12.09.2018, passed by the Trial

Court rejecting I.A.Nos.II and III filed by the plaintiff under

Order XXXIX Rule 1 and 2 read with Section 151 of the Code of

Civil Procedure, 1908 (for short 'CPC').

2. For the purpose of convenience, the parties in these

appeals would be referred to as per their ranking before the Trial

Court.

3. A suit in O.S.No.268/2018 was filed for partition and

separate possession in respect of the suit 'A' and 'B' schedule

properties. The plaintiff claimed that the suit 'A' and 'B'

properties were owned by her father who died on 02.03.1965

leaving behind his wife (Shantabai), plaintiff, defendant Nos.1 to

7. The defendant No.1 took over the reins of the family. The

plaintiff was given in marriage in the year 1978 and was residing

in Goa. Taking undue advantage of this, the defendant Nos.1 to

3 and Smt.Shantabai representing defendant No.4, who was

then a minor, got the suit properties partitioned on 12.01.1979,

which was registered. The plaintiff claimed that 'A' schedule

properties were divided, while 'B' schedule property was allotted

to Smt.Shantabai for her use during her lifetime and was later to

devolve on defendant Nos.1 to 4. She claimed that this partition

deed did not bind her or the defendant Nos.5 to 7 and therefore

claimed her 1/7th share in the suit properties. Along with the

plaint, I.A.Nos.II and III were filed under Order XXXIX Rule 1

and 2 of CPC for an order of interim injunction restraining the

defendants from alienating the suit schedule properties and for

interim injunction restraining the defendants from changing the

nature of suit schedule properties. These applications were

opposed by the defendant Nos.1 and 2. The Trial Court after

considering the contentions urged, rejected the applications in

terms of the order which is impugned in these appeals.

4. Learned counsel for the appellant/plaintiff submitted

that the defendant Nos.1 and 2 were putting up construction

over the suit schedule 'B' property and therefore it was

incumbent upon the Trial Court to grant an order of interim

injunction so as to maintain status quo of the suit schedule 'B'

property. She also submitted that the defendants were liable to

be restrained from alienating any portion of the schedule

properties, as this could hamper the chance of plaintiff getting

her legitimate share in the suit schedule properties. In response,

the learned counsel for defendant Nos.1 and 2 submitted that a

suit in O.S.No.97/2012 was filed by them for declaration that the

'B' schedule property was kept in common as it was given to

Smt.Shantabai as per the partition deed dated 12.01.1979. They

claimed that the plaintiff herein was one of the parties and the

Trial Court, after contest, decreed the suit. They claimed that the

plaintiff could not file the present suit for partition. The learned

counsel submitted that life interest in the suit schedule 'B'

property was created in favour of Smt.Shantabai, the mother of

the plaintiff and defendant Nos.1 to 4. They claimed that the

decree in O.S.No.97/2012 reached this Court in RSA

No.100635/2019 where this Court in terms of an interim order

dated 15.01.2021 noticed that the construction undertaken by

defendants was nearing completion, permitted the defendant

Nos.1 and 2 to close the window and file an affidavit that they

would not claim any equity in the event the second appeal was

decided against them.

5. Pursuant thereto, the learned counsel for the

defendant Nos.1 and 2 submitted that the defendant Nos.1 and 2

closed the window and also filed an affidavit before this Court.

Therefore, he submits that the question of grant of any order of

interim injunction in not changing the nature of 'B' schedule

property would not now arise. He further submitted that the

defendants are not desirous of alienating any portion of the suit

schedule properties.

6. In view of the aforesaid submission, since the

defendant Nos.1 and 2 have submitted that they have no

intention to alienate the suit schedule properties, I.A.No.II/2018

filed by the plaintiff before the Trial Court in O.S.No.268/2018

deserves to be allowed. Insofar as I.A.No.III/2018 is concerned,

since the defendant Nos.1 and 2 have already completed the

construction over the suit schedule 'B' property, which is subject

to outcome of RSA No.100635/2019, the defendants are

restrained from changing the nature of suit 'A' schedule property

until the disposal of the suit. Hence, the following:

ORDER

The appeals are allowed in part.

The impugned order dated 12.09.2018 passed by the Trial

Court in O.S.No.268/2018 is set aside. I.A.No.II/2018 filed in

O.S.No.268/2018 is allowed. Consequently, the defendants are

restrained from alienating the suit 'A' and 'B' schedule properties

until the disposal of the suit. Likewise, the defendants are

restrained from changing the nature of suit schedule 'A' property.

The defendant Nos.1 and 2 shall not alter the construction

already put up in the 'B' schedule property, which shall be

however subject to the outcome of RSA No.100635/2019.

SD/-

JUDGE KGK