Karnataka High Court
Sri. Ramesha vs Swamy on 3 November, 2022
Bench: Ravi V Hosmani
-1-
MFA No. 7371 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
MISCELLANEOUS FIRST APPEAL NO. 7371 OF 2022 (CPC)
BETWEEN:
SRI. RAMESHA
S/O SHIVAPPA,
AGED ABOUT 58 YEARS,
R/AT NAGUVANAHALLY VILLAGE,
KASABA HOBLI,
SRIRANGAPATNA TALUK,
MANDYA DISTRICT-571 438.
...APPELLANT
[BY SRI. N. KUMAR., ADVOCATE (PH)]
AND:
1. SWAMY
S/O LATE SHIVAPPA,
AGED ABOUT 68 YEARS,
2. SRI. RAMACHANDRA
S/O LATE SHIVAPPA,
AGED ABOUT 66 YEARS,
3. SMT. RATHNAMMA
Digitally signed by W/O SRI. SRINIVASAIAH,
GURURAJ D AGED ABOUT 70 YEARS,
Location: High
Court Of Karnataka
4. SMT. LALITHA
W/O. LATE NIRANJANA,
AGED ABOUT 61 YEARS,
NO.1/A, 5TH MAIN, B BLOCK,
J P NAGARA, MYSURU - 8.
5. SRI. SURESHA
S/O SRI. BORAIAH,
AGED ABOUT 58 YEARS,
RESPONDENTS 1 TO 3 AND 5 ARE
R/AT NAGUVANAHALLI VILLAGE,
KASABA HOBLI,
-2-
MFA No. 7371 of 2022
SRIRANGAPATNA TALUK,
MANDYA DISTRICT.
6. RAJU
S/O KUSORI ANKAIAH
AGED ABOUT 70 YEARS
R/O NAGUVANAHALLI VILLAGE,
KASABA HOBLI,
SRIRANGAPATNA TALUK-57.
7. S.J. SRINIVASA
S/O JAVARAPPA,
AGED ABOUT 52 YEARS,
R/O. GOSEGOWDA STREET,
SRIRANGAPATNA TOWN AND TALUK-57.
MANDYA DISTRICT.
8. ROOPA
W/O N.R. HONNEGOWDA,
AGED ABOUT 35 YEARS,
R/O. NAGUVANAHALLI VILLAGE,
KASABA HOBLI,
SRIRANGAPATNA TALUK-57.
...RESPONDENTS
THIS MFA FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 14.10.2022 PASSED ON I.A. NO.VII
IN R.A.NO.5039/2017 ON THE FILE OF THE III ADDITIONAL
DISTRICT AND SESSIONS JUDGE, MANDYA, (SITTING AT
SRIRANGAPATNA), DISMISSING I.A. NO.VII FILED UNDER ORDER
XXXIX RULE 1 AND 2 OF CPC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Challenging order dated 14.10.2022, passed by III Addl.
District and Sessions Judge, Mandya (sitting at Srirangapatna)
in R.A.no.5039/2017 on I.A.no.VII, this appeal is filed.
MFA No. 7371 of 2022
2. Appellant herein is was original plaintiff.
Respondents herein were defendants.
3. Suit was filed for partition and separate possession
of plaintiff's share in suit schedule properties. Suit came to be
dismissed. Plaintiff filed R.A.no.5039/2017 against same. In
said appeal, he filed I.A.no.VII under Order XXXIX Rule 1 and 2
of CPC and sought for temporary injunction restraining
respondents/defendants from alienating suit schedule
properties, pending disposal of appeal.
4. In affidavit, filed in support of application, it was
stated that appellant was entitled for 1/5th share in suit
schedule properties and during pendency of suit, defendants
had alienated some suit properties. It was further stated that if
an order of injunction restraining alienation were not granted,
subject matter of suit would be frittered away.
5. Application was opposed by defendant no.3, who
contended that plaintiff and defendants were not members of
joint family and there was no joint family status between them.
It was stated that since 35 years, they were residing separately
MFA No. 7371 of 2022
and enjoying their respective shares in joint family properties,
as per oral partition. It was submitted that said partition was
acted upon and revenue entries were also mutated in names of
respective parties. In view of above, suit for partition was not
maintainable. It was also submitted that first appellate Court
on consideration had rightly dismissed application, leading to
this appeal.
6. Sri. N. Kumar, learned counsel for appellant
submitted that impugned order passed by first appellate Court
was wholly unsustainable. It was submitted that only reason
mentioned by Court was that there was suppression of material
fact and plaintiff/applicant had not approached Court with clean
hands. It also observed that doctrine of lis pendens would
apply. Learned counsel further submitted that since first appeal
was pending, direction to first appellate Court to dispose of
appeal early may be issued and till then an interim order
restraining defendants from alienating suit schedule properties
be granted. Learned counsel further submitted that in
registered agreement of sale dated 07.09.2021, defendants
had clearly admitted that demised property therein was
MFA No. 7371 of 2022
ancestral joint family property which would substantiate
plaintiff's case. It was further stated that plaintiff had also filed
I.A.no.VIII for impleading subsequent purchasers in appeal.
7. Heard learned counsel. Perused impugned order
and records.
8. On consideration, it is seen that firstly plaintiff's suit
was dismissed on finding of fact that there was prior partition.
Secondly, registered agreement of sale dated 07.09.2021,
produced herein is not part of record. It was neither marked in
evidence nor sought to be produced as additional evidence.
Therefore, same cannot be considered.
9. Further, while considering application, appellate
Court has briefly referred to merits of appeal and held that
there was failure to establish pirma facie case, balance of
convenience and irreparable loss and injury. Under above
mentioned circumstances, first appellate Court also observed
that doctrine of lis pendens would apply, more so, if appellant
has also impleaded purchaser.
MFA No. 7371 of 2022
10. Under circumstances, I do not find any good or
sufficient ground to interfere with impugned order.
Accordingly, appeal is dismissed, however by issuing a
direction to first appellate Court to dispose of first appeal in
accordance with law on merits as expeditiously as possible
within an outer limits of four months.
Sd/-
JUDGE
JY/GRD
