Smt P Latha vs P Rajeev
2022 Latest Caselaw 8456 Kant

                            -1-



        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 09TH DAY OF JUNE, 2022

                          BEFORE

         THE HON'BLE MR.JUSTICE B.M.SHYAM PRASAD

       MISCELLANEOUS FIRST APPEAL NO.2885/2022 (CPC)

BETWEEN:

SMT. P. LATHA
AGED 64 YEARS,
W/O DR.S.C.JAGANNATH
D/O LATE C. PUTTANARASIMHAIAH
R/AT NO. 462, 4TH LINK ROAD,
21ST CROSS, 3RD BLOCK,
JAYANAGAR, BANGALORE - 560 011.
                                           ... APPELLANT

(BY SRI. ANANTHA NARAYANA B. N., ADVOCATE)

AND:

1.     P RAJEEV
       S/O LATE C.PUTTANARASIMHAIAH
       AGED 60 YEARS,
       R/AT NO.739, 2ND MAIN ROAD,
       PADMANABHANAGAR,
       BANGALORE - 560 070.

2.     P.GURUDUTT
       S/O LATE C.PUTTANARASIMHAIAH
       AGED 57 YEARS,
       R/AT O.462, 4TH LINK ROAD,
       21ST CROSS, 3RD BLOCK,
       JAYANAGAR,
       BANGALORE - 560 011.
                           -2-



3.   SMT.VINUTHA P KUMAR
     D/O LATE C.PUTTANARASIMHAIAH
     W/O DR A.M.PRASANNA KUMAR,
     R/AT NO.2995/1, HOSPITAL ROAD,
     5TH CROSS, NEHRUNAGARA,
     MANDYA - 571 401.
                                    ... RESPONDENTS
(BY SRI. HARISH H.V., ADVOCATE FOR C/R2)

      THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER ORDER 43 RULE 1(r) R/W SECTION 151 OF CPC,
AGAINST THE ORDER DATED 07.03.2022 PASSED ON
I.A.NO.1 IN OS.NO.562/2022 ON THE FILE OF THE
X ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU CCH-26, REJECTING THE I.A.NO1 FILED
UNDER ORDER 39 RULE 1 AND 2 R/W SECTION 151 OF
CPC.

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

                       JUDGMENT

This appeal is by the plaintiff in O.S.No.562/2022

on the file of the X Additional City Civil and Sessions

Judge, Bengaluru (for short, 'the Civil Court'). The

appellant has impugned the Civil Court's order dated

7.3.2022, and the Civil Court by this order has rejected

the appellant's application (IA No.1) for temporary

injunction under Order XXXIX Rule 1 and 2 of the Code

of Civil Procedure 1908. The appellant's application is

for temporary injunction restraining the respondents

from interfering with her possession of the ground floor

premises in the residential property bearing No.462, 4th

Link Road, 21st Cross, 3rd Block, Jayanagar, Bengaluru

[the suit schedule 'A' property which is hereafter referred

to as the Subject Property].

2. The dispute in O.S.No.562/2022 is amongst

the siblings. The parents, Sri.Puttanarasaiah and

Smt.V.Savitri, have died on 2.4.2019 and 29.12.2021

respectively. The appellant is their eldest daughter, and

the respondents are her two brothers and sister. The

elder of two brothers (the first respondent) and the

sister (the third respondent) accept that the appellant

would be entitled for a share in the two immovable

properties mentioned in the plaint [including the subject

property] and they also support the appellant's plea of

exclusive possession of the subject property and the

prayer for temporary injunction. The appellant is

opposed by the second respondent, the younger brother.

3. According to the second respondent, his

father has executed the registered last Will and

Testament dated 21.1.2015 bequeathing the subject

property in his favour and other immovable property,

[the schedule 'B' property] in favour of the first

respondent. The question whether the last Will and

Testament dated 21.1.2015 as asserted by the second

respondent should prevail would necessarily have to be

decided by the Civil Court after trial. The question

insofar as the application (IA No.1) and the present

appeal is whether the appellant can demonstrate

exclusive possession of the subject property to be

entitled for injunction.

4. This question is considered by the civil Court

in the light of the admitted fact that the appellant until

her father's demise in the year 2019 resided with her

family in Mysuru and that though the appellant

contends that with the demise of father, she shifted to

Bengaluru and was residing in the ground floor to look

after the mother, who was aged 80 years, she has not

produced any material except her self-serving statement

and a few photographs to demonstrate her exclusive

possession.

5. The civil Court has exercised its discretion in

the light of the material on record and in the

circumstances of the case, and this Court is not

persuaded to opine that the civil Court's exercise of

discretion is either perverse or irregular at this point.

Therefore, the appeal must be disposed of, but this

Court must consider two questions in the view of the

rival submissions. The first question relates to the

appellant's request to remove her possession such as

personal records like passport from the subject property

and the other question relates to the possible alienation

of the subject property during the pendency of the suit.

6. Sri Harish H.V., the learned counsel for the

second respondent, submits that notwithstanding the

pending application before the Civil Court, to facilitate

effective decision on such application, he can

accompany the learned counsel for the appellant or his

colleague and if there are appellant's personal

belongings such as her documents those could be taken

by the appellant. If the parties sort out the appellant's

claim that her personal belongings are in the subject

property after this joint exercise pursuant to this good

gesture, the pending application before the Civil Court

would be rendered infructuous. Therefore, the

appellant should be at liberty to take the offer made by

the learned counsel for the respondent to take the

belongings, if any, in the subject property in the

presence of the two learned counsels. The submissions

in this regard are as such taken on record.

7. As regards the anxiety that the third-party

right would be created in the subject property by the

second respondent, Sri Harish Kumar submits that the

second respondent as of now does not propose to

transfer or alienate the residential property which is

bequeathed under the last Will and Testimony dated

21.1.2015. This submission must also be taken on

record but subject to the condition that the second

respondent would be at liberty to seek civil Court's leave

to alienate in the event there is any occasion for the

same during the pendency of the suit.

For the foregoing, the appeal stands disposed of

calling upon the second respondent not to transfer/sale

the property in residential property bearing No.462, 4th

Link Road, 21st Cross, 3rd Block, Jayanagar, Bengaluru

during the pendency of the suit but subject to the

liberty as aforesaid.

SD/-

JUDGE

SA Ct:sr