Ujwala W/O. Jayandra Shetti vs Sharabai W/O. Raghu Berad @ ...
2022 Latest Caselaw 11890 Kant

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                                      MFA No. 25656 of 2011




     IN THE HIGH COURT OF KARNATAKA, DHARWAD
                           BENCH

     DATED THIS THE 16TH DAY OF SEPTEMBER, 2022

                          BEFORE
        THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 25656 OF 2011
                           (CPC-)
BETWEEN:

1.    SMT.UJWALA W/O. JAYANDRA SHETTI,
      AGE: 42 YEARS, OCC: AGRICULTURE,R/O. UGARKHURD,
      591316 TQ: ATHANI, DIST: BELGAUM.

2.    SHRI.JAYANDRA SHRIMANDHAR SHETTI
      AGE: 50 YEARS, OCCL AGRICULTURE,R/O. UGARKHURD,
      591316 TQ: ATHANI, DIST: BELGAUM.

                                                ...APPELLANTS

(BY SRI. SHRIKANT T PATIL AND SRI.ROHIT S PATIL, ADVOCATES)

AND:

1.    SMT.SHARABAI W/O. RAGHU BERAD @ MAKANNAVAR
      AGE: 63 YEARS, OCC: HOUSEHOLD R/O. SHEDBAL
      591260 TQ: ATHANI, DIST: BELGAUM.

2.    SMT.PHULABAI W/O. SAIDU NAIK
      AGE: 34 YEARS, OCC: AGRICULTURE,R/O. KEMPWAD
      591258 TQ: ATHANI, DIST: BELGAUM.

3.    SMT.SULOCHANA W/O. DHARMARAJ NAIK
      AGE: 28 YEARS, OCC: HOUSEHOLD R/O. SAVADI, 591260
      TQ: ATHANI, DIST: BELGAUM.

4.    SHRI.SHRISHAIL RAGHU BERAD @ MAKANNAVAR
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                                      MFA No. 25656 of 2011

     AGE: 41 YEARS, OCC: AGRICULTURE, R/O. SHEDBAL
     591260 TQ: ATHANI, DIST: BELGAUM.

5.   SHRI.KUMAR RAGHU BERAD @ MAKANNAVAR
     AGE: 38 YEARS, OCC: AGRICULTURE, R/O.
     SHEDBAL591260 TQ: ATHANI, DIST: BELGAUM.

6.   SHRI.ASHOK RAGHU BERAD @ MAKANNAVAR
     AGE: 31 YEARS, OCC: AGRICULTURE, R/O. SHEDBAL
     591260 TQ: ATHANI, DIST: BELGAUM.

7.   SHRI.VILAS RAGHU BERAD @ MAKANNAVAR
     AGE: 25 YEARS, OCC: AGRICULTURE,R/O. SHEDBAL,
     591260 TQ: ATHANI, DIST: BELGAUM.

                                                ...RESPONDENTS
(BY SRI. PRASHANT S HOSAMANI, ADVOCATE FOR R2 & R3,
R1-DECEASED (R2 TO R7 ARE LRS OF DECEASED R1,
R4, R5, R6 ARE SERVED)


      THIS MFA IS FILED U/o.43 RULE 1(r) R/W. SEC.104 OF CPC.,
1908, AGAINST THE ORDERS ON I.A.NO.1 DTD:19-11-2011 PASSED
IN O.S.NO.29/2010, ON THE FILE OF THE SENIOR CIVIL JUDGE,
ATHANI, ALLOWING THE I.A.NO.1 FILED U/O.39 RULE 1 AND 2 OF
CPC.
     THIS MFA COMING ON FOR HEARING THIS DAY, THE COURT
DELIVERED THE FOLLOWING:


                         JUDGMENT

Heard learned counsel for both the parties.

2. This appeal is filed challenging the order passed

in O.S.No.29/2010 on I.A.No.1 restraining the appellants

by granting temporary injunction from obstructing the

MFA No. 25656 of 2011

plaintiffs peaceful possession and enjoyment over the suit

properties. These appellants are defendant Nos.5 and 6.

3. The main contention of the counsel appearing

for the appellants is that suit schedule properties were

purchased on 24.09.2009 by the mother and sisters of

vendors of the appellants and counsel submits that

consequent upon purchase of sale deed on 24.09.2009, all

the revenue records are standing in the name of the

appellants and appellants were also in possession of the

properties consequent upon the sale deed executed by the

vendors. The trial Court has committed an error in

granting an order of injunction against the purchasers i.e.

appellants and they have purchased the properties from

the sons and brothers of the plaintiffs and also counsel

would contend that there was a family partition among the

father and sons in the year 1988 itself and counsel

submits that by that time mother was represented by

minor guardian by one of the son i.e. defendant No.1 and

parties have acted upon in terms of the partition and

MFA No. 25656 of 2011

subsequently all revenue records are transferred in favour

of the vendors and in the year 1988 the daughters were

not having any right in respect of ancestral property and

granting injunction order against defendant Nos.5 and 6

i.e. appellants who are in possession, is nothing but a

perverse order passed by the trial Court. Hence, it requires

interference.

4. Per contra, learned counsel for respondents

would contend that the alleged vatani was made in 1988

when the daughters are minors and submits that the trial

Court having perused the material on record only comes to

the conclusion that plaintiffs are in possession of the suit

schedule properties as joint owners and properties belong

to joint family and it is ancestral property and hence, it

does not require any interference.

5. Having heard the respective counsel and also

on perusal of the material available on record, particularly

plaintiffs have pleaded with regard to their right and no

doubt suit was filed in 2010 and subsequent to the

MFA No. 25656 of 2011

amendment of Central Enactment, but it is the contention

of the appellants that already there was a partition in the

year 1988 and based on the said partition Khata was also

effected in favour of vendors of the appellants and

subsequently the sale deed was executed on 24.09.2009

and when there was already a partition in the family and

as on the date of the partition the deceased were not

having any right in respect of the property and whether

there was a bonafide purchase or not the matter has to be

adjudicated during the course of trial and however, the

trial Court comes to the conclusion that the purchasers i.e.

appellants are not bonafide purchasers and the said aspect

ought not to have been decided while considering I.A.No.1

and the very approach of the trial Court is erroneous.

6. Counsel brought to notice of this Court that wife

and children of vendors of appellants have also filed suit in

O.S.Nos.182/2010 and 183/2010, wherein they have

sought an order of injunction and trial Court comes to the

conclusion that these appellants are the bonafide

MFA No. 25656 of 2011

purchasers and this order is passed within four days of the

earlier rejection of the earlier order i.e. on 23rd November

2011 and the impugned order is passed on 19th November

2011 by the same Judge and contra opinion is given in

different suits. When such being the matter, it is nothing

but a perverse order and in one suit claims that

defendants i.e. appellants are in possession and in the

other order the Court has given finding that plaintiffs are

in possession and fails to take note of the fact that already

sale was made and there was partition among main

members of the family prior to the amendment and

subsequent to the amendment no doubt sale has been

made by the main members of the family and the matter

requires to be adjudicated before the trial Court with

regard to right whether they are bonafide purchasers or

not and unless trial is conducted, the same cannot be

decided while considering the matter while passing order

on I.A.No.1 filed under Order 39 Rules 1 and 2 of CPC.

Hence, it requires interference and the order of the trial

Court requires to be set aside.

MFA No. 25656 of 2011

7. In view of the discussions made above, I pass

the following:

ORDER

Appeal is allowed. Impugned order passed by the

trial Court in O.S.No.29/2010 on I.A.No.1 dated

19.11.2011 is set aside.

It is noticed that the suit is of the year 2010 and

almost a decade has been elapsed and hence, it is

appropriate to direct the trial Court to dispose of the

matter within one year from today.

The registry is directed to transmit the trial court

records forthwith.

Sd/-

JUDGE

SH