Karnataka High Court
Smt Sarojamma vs Sri L Chandrappa on 20 January, 2022
Bench: Ashok S.Kinagi
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JANUARY 2022
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
M. F. A. NO.4887 OF 2020 (CPC)
C/W
M. F. A. NO.4888 OF 2020 (CPC)
BETWEEN:
1. SMT. SAROJAMMA
D/O LATE LAKSHMAIAH
AGED ABOUT 53 YEARS
2. SMT KAMALA
D/O LATE LAKSHMAIAH
AGED ABOUT 37 YEARS
3. SMT VASANTHA
D/O LATE LAKSHMAIAH
AGED ABOUT 35 YEARS
ALL ARE R/AT ASHOKANAGARA
1ST WARD VIJAYAPURA TOWN
DEVANAHALLI TALUK-562 110.
... COMMON APPELLANTS
(BY SRI. V.F. KUMBAR, ADVOCATE)
AND:
2
1. SRI L. CHANDRAPPA
S/O LATE LAKSHMAIAH
AGED ABOUT 60 YEARS
2. SRI L BASAVARAJU
S/O LATE LAKSHMAIAH
AGED ABOUT 51 YEARS
3. SRI L KRISHNA
S/O LATE LAKSHMAIAH
AGED ABOUT 41 YEARS
4. SMT RATHNAMMA
W/O LATE ANANADA
AGED ABOUT 42 YEARS
5. SRI MAHESH
S/O LATE ANANDA
AGED ABOUT 27 YEARS
6. SMT MALATHI
D/O LATE ANANDA
AGED ABOUT 29 YEARS
7. SRI RAJESH
S/O LATE ANANDA
AGED ABOUT 24 YEARS
RESPONDENT Nos.1 TO 7 ARE
R/AT ASHOKANAGARA
1ST WARD, VIJAYAPURA TOWN
DEVANAHALLI TALUK-562110.
8. SRI M KRISHNA
S/O LATE R MANNEYAPPA
AGED ABOUT 67 YEARS
R/AT J C BADAVANE,
3
VIJAYAPURA TOWN
DEVANAHALLI TALUK-562110.
9. SMT LATHA
W/O SRINIVAS
AGED ABOUT 51 YEARS
R/AT ASHOKNAGAR, VIJAYAPURA TOWN
DEVANAHALLI TALUK-562110
10 . SMT MANJULA
W/O PUTTASWAMY
AGED ABOUT 54 YEARS
R/AT NEAR POLICE STATION
VIJAYAPURA TOWN
DEVANAHALLI TALUK-562110
11 . SRI V KRISHNAPPA
S/O LATE VENKATNARAYANAPPA
AGED ABOUT 57 YEARS
R/AT KOLAR ROAD, VIJAYAPURA TOWN
DEVANAHALLI TALUK-562110
12 . SRI K N REVAPPA
AGE NOT KNOWN
S/O LATE MUGALI NAGAPPA
C/O DEVARAJAPPA HOUSE
R/AT KOTE BEEDI, VIJAYAPURA TOWN
DEVANAHALLI TALUK-562110
13 . SRI SONNEGOWDA
S/O CHIKKANANJAPPA
AGED ABOUT 69 YEARS
R/AT AREHALLOI VILLAGE
NANDAGUDI HOBLI,
HOSKOTE TALUK-562114
14 . SRI K SHANTHAMMA
W/O C B KARIYAPPA
4
AGED ABOUT 64 YEARS
R/AT MARKET ROAD, VIJAYAPURA TOWN
DEVANAHALLI TALUK-562114
15 . SMT GOWRAMMA
W/O DEVARAJ
AGED ABOUT 62 YEARS
R/AT NEAR SRIRAMAMANDIRA TEMPLE
VIJAYAPURA TOWN
DEVANAHALLI TALUK-562110
16 . SRI V NARAYANAPPA
S/O MUNIYAPPA
AGED ABOUT 82 YEARS
R/AT MELUR VILLAGE, JANGAMAKOTE HOBLI
SHIDLAGATTA TALUK-562105
17 . SMT SHANTAMMA
W/O THIMMARAYAPPA
AGED ABOUT 54 YEARS
R/AT OPP POLICE STATION
VIJAYAPURA TOWN
DEVANAHALLI TALUK-562110
18 . SRI M C BHANUPRAKASH
S/O M CHIKKACHANNAPPA @ PUTTANNA
AGED ABOUT 45 YEARS
R/AT KOTE BEEDI, VIJAYAPURA TOWN
DEVANAHALLI TALUK-562110
19 . SMT M PUSHPAMMA
W/O VENKATESHAPPA
AGED ABOUT 54 YEARS
R/AT MANDIBELE ROAD, VIJAYAPURA TOWN
DEVANAHALLI TALUK-562110
20 . SRI M MURTHY
S/O M MUNISHAMAPPA
5
AGED ABOUT 62 YEARS
R/AT ASHOK NAGAR, VIJAYAPURA TOWN
DEVANAHALLI TALUK-562110
21 . SRI MUNIKRISHNAPPA
S/O NARAYANAPPA
AGED ABOUT 59 YEARS
R/AT ASHOKNAGARA, VIJAYAPURA TOWN
DEVANAHALLI TALUK-562110
22 . SRI RAMANJINI
S/O LATE MALLAPPA
AGED ABOUT 49 YEARS
R/AT BALAGIGARA BEEDI
VIJAYAPURA TOWN
DEVANAHALLI TALUK-562110
23 . SRI MANJESH
S/O NARAYANAPPA
AGED ABOUT 49 YEARS
R/AT BALAGIGARA BEEDI
VIJAYAPURA TOWN
DEVANAHALLI TALUK-562110
24 . SRI R VENKATESHAPPA
S/O LATE RAMAIAH
AGED ABOUT 70 YEARS
R/AT BALAGIGARA BEEDI
VIJAYAPURA TOWN
DEVANAHALLI TALUK-562110
25 . SMT ASHWATHAMMA
FOSTERED DAUGHTER OF K H RAMAIAH
AGED ABOUT 64 YEARS
R/AT KARLAPURA VILLAGE
HESARAGHATTA HOBLI
BANGALORE NORTH TALUK-562157
6
26 . SRI T VENKATAPPA
S/O THIRUPALLAPPA
AGED ABOUT 49 YEARS
R/AT BALAGIGARA BEEDI
VIJAYAPURA TOWN
DEVANAHALLI TALUK-562110
27 . SRI CHANDRA
S/O KALEGOWDA
AGED ABOUT 54 YEARS
R/AT ASHOKANAGARA
VIJAYAPURA TOWN
DEVANAHALLI TALUK-562110
28 . SRI CHIKKA KEMPANNA
S/O LATE DODDA REDDAPPA
AGED ABOUT 84 YEARS
R/AT KOMMASANDRA VILLAGE
VIJAYAPURA TOWN
DEVANAHALLI TALUK-562110
29 . SRI K MUNIRAJU
S/O CHIKKAKEMPANNA
AGED ABOUT 49 YEARS
R/AT KOMMASANDRA VILLAGE
VIJAYAPURA TOWN
DEVANAHALLI TALUK-562110
30 . SRI HALTAP AHMED
S/O LATE ABDUL SAMMAD
AGED ABOUT 69 YEARS
R/AT KOLAR ROAD, VIJAYAPURA TOWN
DEVANAHALLI TALUK-562110
31 . SRI R MUTHU MANI
S/O RAJU DEVAR
AGED ABOUT 42 YEARS
R/AT CTM ROAD
7
VIJAYAPURA TOWN
DEVANAHALLI TALUK-562110
32 . SRI K RAMESH
S/O M KRISHNAIAH
AGED ABOUT 67 YEARS
R/AT J C EXTENSION, VIJAYAPURA TOWN
DEVANAHALLI TALUK-562110
33 . SRI. A NAGARAJ
S/O LATE N NAGARAJ
AGED ABOUT 50 YEARS
R/AT RAJANNA BUILDING
ASHOK NAGAR, VIJAYAPURA TOWN
DEVANAHALLI TALUK-562110.
34 . SRI R NARASIMHAIAH
S/O ALAPPANAHALLI RAMAIAH
AGED NOT KNOWN
DEVANAHALLI MAIN ROAD
VIJAYAPURA TOWN
DEVANAHALLI TALUK-562110
35 . SRI K ANANTHA SETTY
S/O CHANNAKESHAVAIAH
AGED ABOUT 59 YEARS
BENDIGANAHALLI VILLAGE
SULIBELE HOBLI,
HOSAKOTE TALUK-562114
36 . SMT SARASWATHAMMA
W/O SOMASHEKAR
AGED ABOUT 49 YEARS
R/AT ASHOKANAGARA, VIJAYAPURA TOWN
DEVANAHALLI TALUK-562110
37 . SRI KRISHNAPPA
S/O EERAPPA
8
AGED ABOUT 64 YEARS
R/AT ASHOKANAGARA, VIJAYAPURA TOWN
DEVANAHALLI TALUK-562110
38 . SRI SHANTHAVEERAIAH
S/O BASAVALINGAIAH
AGED ABOUT 79 YEARS
R/AT ASHOKANAGARA, VIJAYAPURA TOWN
DEVANAHALLI TALUK-562110
39 . SRI SHANKARAPPA
S/O GUNDAPPA
AGED ABOUT 69 YEARS
R/AT DEVANAHALLI MAIN ROAD
DEVANAHALLI TALUK-562110
40 . SRI DODDANNA
S/O KRISHNAPPA
AGED ABOUT 64 YEARS
R/AT ASHOK NAGARA, VIJAYAPURA TOWN
DEVANAHALLI TALUK-562110
41 . SMT MUNIRATHNAMMA
W/O KRISHNAPPA
AGED ABOUT 64 YEARS
R/AT ASHOKNAGARA, VIJAYAPURA TOWN
DEVANAHALLI TALUK-562110
...COMMON RESPONDENTS
(IN MFA No.4887/2020 NOTICE IN RESPECT OF R-1 TO
R-13, R-15 TO R-30,
R-32 TO R-37, R-39 TO R-41 ARE DISPENSED WITH.
R-14, R-31, R-38 ARE SERVED)
(IN MFA No.4888/2020 NOTICE TO R-1 TO R-10, R-15,
R-16, R-20, R-25, R-27, R-28, R-30, R-33, R-37, R-39,
R-40 AND R-41 ARE DISPENSED WITH
9
SRI. M.K. BHASKARAIAH, ADVOCATE FOR R-13, R-31
AND R-35
R-11, R-12, R-14, R-17, R-19, R-21 TO R-24, R-26, R-29,
R-32, R-34, R-36 AND R-38 ARE SERVED)
THESE APPEALS ARE FILED U/O.43 RULE 1(r) OF
CPC, AGAINST THE ORDER DATED 08.07.2019 PASSED ON
IA NO.II IN O.S.NO.191/2016 (MFA 4887/2020) AND
IA NO.I IN O.S.NO.191/2016 (MFA 4888/2020) ON THE
FILE OF THE SENIOR CIVIL JUDGE AND JMFC,
DEVANAHALLI, REJECTING THE IA NO.II AND I FILED
U/O.39 RULE 1 AND 2 R/W SEC.151 OF CPC.
THESE APPEALS COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellants being aggrieved by the common
order dated 08.07.2019, passed on I.A.Nos.1 and 2 in
O.S.No.191/2016 by the Senior Civil Judge & JMFC,
Devanahalli, have filed these appeals.
2. Brief facts leading rise to filing of these
appeals are as under:
The appellants filed a suit in O.S.No.191/2016
for the relief of partition and separate possession. In
the said suit, the appellants filed I.A.No.1 seeking for
an order of temporary injunction restraining the
respondents from alienating the suit schedule property
and I.A.No.2 seeking for an order of temporary
injunction restraining the respondents in any way not
to put up any construction over the suit schedule
property by respondents No.15, 32 and 38 to 42. In
support of the application, the appellants filed affidavit
contending that originally Lakshmaiah was the owner
of the suit property having inherited the same. The
appellants and respondents No.1 to 3 are brothers and
sisters and late of Late Lakshmaiah. Respondent No.4
is the wife of appellants' deceased brother Anand and
respondents No.5 to 7 are the sons of said Anand. It
is further contended that Late Lakshmaiah had
alienated the suit property in favour of
A.V.Chikkappanna for the legal necessity under
registered sale deed dated 17.06.1963. The said
Chikkappanna vide registered sale deed dated
04.07.1981, sold the said property to the father and
mother of appellants who continued their joint
possession along with appellants and respondent
Nos.1 to 3. It is further contended that in respect of
another land in Sy.No.252/2 measuring 5 guntas after
the death of appellants' mother, the appellants and
respondents No.1 to 7 have orally partitioned the
same. The said property was not included in the suit.
It is further contended that respondents are utter
strangers to the suit schedule property. The
respondents came near the suit property and tried to
put up fence over the suit property. At that time,
appellants objected to the same and the said persons
disclosed that they have purchased the suit property
and they have threatened the appellants with dire
consequences. Hence complaint was lodged against
the respondents. The police have issued endorsement
stating that it is a civil dispute and directed the
appellants to approach the Civil Court. Hence the
appellants have filed applications seeking for an order
of temporary injunction.
The said applications were opposed by the
respondent No.13 herein. It is contended that the suit
property bearing Sy.No.168/2 measuring 260 feet x
55 feet was converted into non-agricultural purpose
vide order dated 08.12.1989, in the name of
respondent No.1, L. Chandrappa. Thereafter, the
name of respondent No.1 was entered in the
municipal records. Respondent No.1 formed sites and
sold the same to different persons. Respondent No.1,
his mother and brothers have constructed two houses
which was purchased by respondent No.13 under
registered sale deeds dated 19.08.1996 and
27.06.1997. In view of the same, the question of
seeking partition does not arise as the property is well
developed now. Hence prayed to dismiss the
applications filed by the appellants.
The Trial Court, after hearing the parties,
rejected the applications. Aggrieved by the said
order, the appellants have filed these appeals.
3. Heard learned counsel for the appellants and
learned counsel for the respondents.
4. Learned counsel for the appellants submits
that the Trial Court has committed an error in
rejecting the applications filed by the appellants. He
further submits that the Trial Court has, without
considering the material on record, passed the
impugned order which is arbitrary and capricious.
Hence, on these grounds, he prays to allow the
appeals.
5. Per contra, learned counsel for the
respondents supports the impugned order.
6. Perused the records and considered the
submissions made by learned counsel for the parties.
7. It is not in dispute that the appellants have
filed a suit for declaration and partition, etc. It is the
case of the appellants that they are the owners of the
suit schedule property having inherited the same from
their father and mother and respondents are strangers
and fraudulently obtained the registered sale deed and
they are trying to alienate the suit schedule property.
Further that the respondents are trying to put up
construction so as to deprive their legitimate right.
From the perusal of the records produced by the
parties, contesting respondent has already
constructed a building over the suit schedule property.
In view of the construction undertaken by the
contesting respondent, nothing survives for
consideration in respect of I.A.No.2 as the Trial Court
has already observed in the impugned order. Further,
the Trial Court has also observed that the appellants
have challenged the sale deed from 1997 to 2003.
But they have not challenged the initial sale deed
dated 19.10.1992. Further the appellants have
admitted that some of the ancestral properties have
been partitioned among them orally. But they have
not explained the reason for partial partition of the
property. The appellants have file a suit for partition
only in respect of the property which was alienated.
The Trial Court, after considering the entire material
on record, was justified in passing the impugned
order. I do not find any grounds to interfere with the
impugned order. Accordingly, the appeals are
dismissed.
However, any construction undertaken by the
contesting respondent shall be subject to the outcome
of the suit. Further, if any alienation takes place
during the pendency of the suit, the alienation shall be
subject to the outcome of the suit. The intending
purchaser shall not claim any equity in case if the
vendor fails in the suit.
In view of dismissal of the appeals, pending I.As.
do not survive for consideration and are accordingly
dismissed.
SD/-
JUDGE
RD
