Shri. M Krishnappa vs Smt. B S Manjula
2022 Latest Caselaw 420 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 11TH DAY OF JANUARY 2022

                      BEFORE

     THE HON'BLE MR.JUSTICE ASHOK S. KINAGI

           M. F. A. NO.3174 OF 2021 (CPC)

BETWEEN:
1.  SHRI. M KRISHNAPPA
    S/O. N MUNISWAMAPPA,
    AGED ABOUT 76 YEARS

2.    SHRI. M NANJAPPA
      S/O. N MUNISWAMAPPA,
      AGED ABOUT 71 YEARS

3.    SHRI. B M NAGARAJ
      S/O. N MUNISWAMAPPA,
      AGED ABOUT 68 YEARS

4.    SHRI. B M SHANKARE GOWDA
      S/O. N MUNISWAMAPPA,
      AGED ABOUT 68 YEARS

5.    SHRI. M. MUNE GOWDA
      S/O. N MUNISWAMAPPA,
      AGED ABOUT 68 YEARS

     ALL ARE R/AT KUNTENANJAPPA ROAD,
     BELLARY ROAD, BYATARAYANAPURA,
     BENGALURU 560092.
                                     ...APPELLANTS
(BY SRI. PRAKASH T HEBBAR, ADVOCATE)
                           2




AND:

1.     SMT. B S MANJULA
       D/O. LATE SHAMANNA,
       W/O. SHIVASHANKAR,
       AGED ABOUT 62 YEARS, R/AT NO. 7122,
       SHIVASHREE NILAYA, AIYAPPA TEMPLE ROAD,
       SHABARI NAGARA, BYATARAYANAPURA,
       BENGALURU 560092.

2.     SHRI. S SOMANNA
       S/O. LATE. B M SHAMANNA,
       AGED ABOUT 60 YEARS

3.     SHRI. S SATISHA
       S/O. LATE. B M SHAMANNA,
       AGED ABOUT 57 YEARS

4.     SHRI. S MUNENDRA
       S/O. LATE. B M SHAMANNA,
       AGED ABOUT 56 YEARS

5.     SHRI. S NAGESH
       S/O. LATE. B M SHAMANNA,
       AGED ABOUT 52 YEARS

6.     SHRI. S SURESH
       S/O. LATE. B M SHAMANNA,
       AGED ABOUT 46 YEARS

       ALL ARE R/AT KUNTENANJAPPA ROAD,
       BELLARY ROAD, BYATARAYANAPURA,
       BENGALURU 560092.
                                     ...RESPONDENTS


(BY SRI. SHIVANANDA METI, ADVOCATE FOR R-1
    R-2 TO R-6 ARE SERVED)
                              3




     THIS APPEAL IS FILED UNDER ORDER 43 RULE 1(r)
OF THE CPC, AGAINST THE ORDER DATED 28.05.2021
PASSED ON IA NO.1 IN O.S.NO.4321/2020 ON THE FILE
OF THE LXIV ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, BENGALURU CITY, (CCH-65), ALLOWING IA NO.1
FILED BY PLAINTIFF U/O.39 RULE 1 AND 2 R/W SEC.151
OF CPC.

     THIS APPEAL COMING ON FOR ORDERS THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                      JUDGMENT

The appellants being aggrieved by the order on

I.A.No.I dated 28.5.2021 passed in O.S.No.4321/2020

by the LXIV Additional City Civil and Sessions Judge

CCH-65 Bengaluru have filed this appeal.

2. Brief facts leading rise to filing of this appeal

are as under:

Respondent No.1 filed a suit in

O.S.No.4321/2020 seeking for the relief of partition

and separate possession of her 1/6th share in the suit

schedule property and also sought for declaration that

the compromise decree dated 20.9.2010 passed in

O.S.No.4272/2009 is not binding on respondent No.1

in the suit schedule property. In the said suit,

respondents appeared and filed written statement.

Later, respondent No.1 herein has filed an application

in I.A.I/2020 seeking for an order of temporary

injunction against the appellants restraining them

from changing the nature and character of the suit

schedule properties.

In support of the application, respondent No.1

has filed an affidavit stating that respondent No.1 and

other respondents are the members of the Hindu

undivided joint family governed by the Hindu

Mithakshara school of law. During the life time, their

father acquired the suit property under registered

partition deed and on the strength of the registered

partition deed, name of the father of respondent No.1

was entered in the revenue records. It is contended

that father of respondent No.1 died and after his

demise, respondent No.1 requested respondent No.2

refused to effect partition. Hence, the petitioner filed

the suit.

It is further contended that respondents No.2 to

6 have filed a suit in O.S.No.4272/2009 against the

appellants herein for the relief of declaration and

injunction in respect of the suit schedule properties.

In the said suit, respondent No.1 was not a party

though she being the legal heir of late B.M.Shamanna.

The said suit O.S.No.4272/2009 ended in a

compromise by filing compromise petition by

appellants herein and respondents No.2 to 6 herein.

On the basis of the compromise decree, the

appellants got transferred the pahani and other

revenue records in their names and they were trying

to change the nature and character of the suit

schedule properties. Respondent No.1 tried her best to

resist the illegal act of the appellants. Hence,

respondent No.1 filed an application.

The appellants filed a memo adopting their

written statement as objection to I.A.I

The Trial Court after hearing the arguments on

both sides allowed I.A.I filed by respondent No.1 vide

order dated 28.05.2021. The appellants being

aggrieved by the order on I.A.I has filed this appeal.

3. Heard learned counsel for appellants and

learned counsel for respondent No.1.

4. Learned counsel for the appellants submits

that the appellants have taken a specific contention in

the written statement that the suit for partial partition

is not maintainable as respondent No.1 has not

included the other ancestral and joint family

properties in the suit. Hence, he submits the suit is

not maintainable. He further submits that the Trial

Court has not discussed about the contention raised

by the parties in the pleadings as well as in the

objections filed by the appellants. He further submits

that the Trial Court has not assigned any reasonings

and the said impugned order is not a speaking order

and he seeks that I.A.I may be reconsidered by the

Trial Court. Hence, on these grounds, he prays to

allow the appeal.

5. Per contra, learned counsel for the

respondent No.1 supports the impugned order. He

submits that the compromise decree obtained by the

appellants is behind the back of respondent No.1 and

respondent No.1 is not a party to the said compromise

petition and therefore, the said compromise petition is

not binding on respondent No.1. He further submits

that sister of the appellants were also not made

parties to the suit and that the compromise petition

passed in the earlier suit is not binding on respondent

No.1 and that the Trial Court was justified in passing

the impugned order. Hence, he submits that there is

no error in impugned order. Hence, on these grounds

he prays to dismiss the appeal.

6. Heard and perused the records and

considered the submissions made by learned counsel

for the parties.

7. It is not in dispute that respondent No.1 has

filed a suit for partition and separate possession and

also sought for a declaration that the compromise

entered in between the appellants and respondents

No.2 to 5 is not binding on the share of respondent

No.1. In the said suit, the appellants have filed the

written statement.

8. In the written statement they have taken a

specific contention that respondent No.1 has not

included the land measuring 2 acres 27 guntas which

is presently standing in the name of S Somanna i.e.

brother of respondent No.1 in Sy.No.28 and it is also

further contended that the suit for partial partition is

not maintainable. The Trial Court without considering

the contentions raised by the parties has passed the

impugned order.

9. From the perusal of the impugned order, the

Trial Court has not considered the material placed on

record by the parties except recording a finding that

respondent No.1 has made out a prima facie and it

has also recorded that it is not desirable and open for

the court to record a decision on the merits of the

pleas taken in the suit and those findings will not have

the binding effect on the parties at the time of final

hearing of the case.

10. The Trial Court has not considered the

contentions of the parties and has proceeded to pass

the impugned order. The impugned order passed by

the Trial Court is not a speaking order. Hence, on

these grounds, the impugned order is liable to be set

aside. Accordingly, the impugned order passed by the

Trial Court is perverse.

11. In view of the above discussion, the

following order is passed :

ORDER

i) The writ petition is allowed; .

ii) The impugned order dated 28.5.2021

passed on I.A.I is set aside;

iii) The Trial Court is directed to reconsider I.A.I

and pass appropriate order in accordance with law.

At this stage the learned counsel for the

respondent No.1 submits that respondent No.1 had

the benefit of the exparte order of temporary

injunction. The said order of temporary injunction

was in force till the disposal of the application.

Having considered the submission made by the

learned counsel for respondent No.1, both the parties

are directed to maintain status-quo till the disposal of

the I.A.I by the Trial Court. The Trial Court is directed

to dispose of I.A.I within a period of one month from

the date of receipt of a copy of this order.

SD/-

JUDGE

rs