Smt.Kamal W/O. Ramachandra ... vs Smt.Pushpa W/O. Krishna Kamble
2022 Latest Caselaw 875 Kant

                           :1:


         IN THE HIGH COURT OF KARNATAKA
                 DHARWAD BENCH

     DATED THIS THE 19TH DAY OF JANUARY, 2022

                         BEFORE

        THE HON'BLE MR. JUSTICE R. NATARAJ

            MFA NO.100345 OF 2019 (CPC)

BETWEEN:


SMT. KAMAL W/O. RAMACHANDRA KAMBLE
AGE: 59 YEARS, OCC: HOUSEHOLD,
R/O: H.NO. 1516, LAXMI NAGAR,
HINDALGA, BELAGAVI.
                                              ... APPELLANT
(BY SRI. MALLIKARJUNSWAMY B. HIREMATH, ADVOCATE)


AND:


1.     SMT. PUSHPA W/O. KRISHNA KAMBLE
       AGE: 56 YEARS, OCC: TEACHER,
       R/O: PLOT NO.77, SAMARTH COLONY,
       2ND STAGE, LAXMI NAGAR, HINDALAGA,
       BELAGAVI.

2.     SMT. CHANDRABAI W/O. LAXMAN KAMBLE
       AGE: 75 YEARS, OCC: HOUSEHOLD WORK,
       R/O: H.NO. 1516, LAXMI NAGAR,
       HINDALGA, BELAGAVI.

3.     VIMAL W/O. BALACHANDRA KALE
       AGE: 62 YEARS, OCC: RETIRED TEACHER,
       R/O: H.NO. 1516, LAXMI NAGAR,
       HINDALGA, BELAGAVI.
                           :2:


4.   VIJAY S/O. LAXMAN KAMBLE
     AGE: 53 YEARS, OCC: PVT. SERVICE,
     R/O: QTRS NO.W58, NEAR SHIVALAYA MANDIR,
     HIDAKAL DAM, TQ. HUKKERI,
     DIST: BELAGAVI.

5.   SMT. LATA W/O. NAGESH KAMBLE
     AGE: 51 YEARS, OCC: HOUSEHOLD WORK,
     R/O: H.NO. 1516, LAXMI NAGAR,
     HINDALGA, BELAGAVI.

6.   SMT. SHOBHA W/O. MAHADEV KARYAGOL
     AGE: 49 YEARS, OCC: HOUSEHOLD WORK,
     R/O: QTRS NO.W58, NEAR SHIVALAYA MANDIR,
     HIDAKAL DAM, TQ. HUKKERI,
     DIST: BELAGAVI.

7.   SMT. GEETA W/O. YALLAPPA KAMBLE
     AGE: 47 YEARS, OCC: HOUSEHOLD WORK,
     R/O: H.NO. 1516, LAXMI NAGAR,
     HINDALGA, BELAGAVI.
                                      ... RESPONDENTS
(BY SRI. DEEPAK M. BADIGER, ADVOCATE FOR R1,
R2 TO R7 - SERVED)

     THIS APPEAL IS FILED UNDER ORDER 43 RULE 1(r) OF
THE CODE OF CIVIL PROCEDURE, AGAINST THE ORDER DATED
21.12.2018, PASSED IN O.S. NO.107/2018 ON THE FILE OF THE
IV ADDITIONAL SENIOR CIVIL JUDGE, BELAGAVI, ALLOWING
THE I.A.NO.1 AND 2 FILED UNDER ORDER XXXIX RULE 1 AND 2
OF CPC.


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


                       JUDGMENT

1. This appeal is filed by the defendant No. 3 in

Original Suit No.107/2018 pending trial before the IV

Additional Senior Civil Judge, Belagavi, challenging the

order dated 21.12.2018, by which it allowed the application

filed by the plaintiff under Order XXXIX Rule 1 and 2 of the

Code of Civil Procedure.

2. The suit in Original Suit No.107/2018 was filed

for partition and separate possession of the suit schedule

properties which apparently are a residential plot and an

agricultural land. The plaint discloses that the suit

properties were joint family properties and that Shri.

Laxman was the propositus, who died on 21.10.1995,

leaving behind the plaintiff and defendants as his legal

representatives. The residential plot was purchased by

Shri. Laxman and the agricultural property was the

ancestral property where all the members of the family are

entitled to an undivided share. It is alleged that defendants

were attempting to sell the suit properties and to construct

a house over the residential plot. Hence two applications

were filed for grant of temporary injunction restraining the

defendants from alienating the suit schedule property and

for restraining the defendants from constructing a house.

3. The trial Court after considering the material

documents, allowed the applications.

4. Being aggrieved by the aforesaid order, the

present appeal is filed.

5. The suit is for partition and separate possession,

where the plaintiffs alleged that they are entitled to

undivided shares in suit property. The interim order

granted by the trial Court is only to maintain status-quo of

the suit property until disposal of the suit. The defendant

No.3, who claims that the residential plot was gifted to her,

has contested the suit on the ground that the residential

property was the absolute property owned and possessed

by defendant No.1. This definitely presented a triable case.

6. Having regard to the suit reliefs and also having

regard to the fact that interim orders are always granted in

aid of the final relief, it is appropriate that instead of

disturbing the order passed by the trial Court, to direct the

trial Court to dispose off the suit.

7. In that view of the matter, the appeal is disposed

off upholding the order passed by the trial Court and the

trial Court is directed to dispose of the suit as expeditiously

as possible at any rate not beyond the period of one year

from the date of receipt of a certified copy of this order.

8. All pending applications stands disposed.

Sd/-

JUDGE

SMM