Karnataka High Court
Smt. Kashibai W/O. Nanasaheb ... vs Shri. Vittal S/O. Balasaheb ... on 7 August, 2023
Bench: Anant Ramanath Byarhj
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NC: 2023:KHC-D:8415
MFA No. 103765 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 7TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
MISCELLANEOUS FIRST APPEAL NO. 103765 OF 2018 (CPC)
BETWEEN:
1. SMT. KASHIBAI
W/O NANASAHEB BHOSALE
AGE: 68 YEARS,
OCC: HOUSEHOLD WORK,
R/O. SALAHALLI-591130,
TAL: RAMDURG, DIST: BELAGAVI.
2. SHRI. APPASAHEB
S/O NANASAHEB BHOSALE
AGE: 50 YEARS,
OCC:AGRICULTURE,
R/O. SALAHALLI-591130,
TAL: RAMDURG, DIST: BELAGAVI.
3. SMT. SHOBHABAI
W/O LAXMANRAO JONDALAGATTI
AGE: 50 YEARS,
Digitally
signed by
VIJAYALAXMI
OCC: HOUSEHOLD WORK,
VIJAYALAXMI M BHAT
M BHAT Date:
2023.08.10
10:44:18 -
R/O. GUDDAD HULIKATTI,
0700
TAL: KALAGHATAGI.
4. SMT. VINODA
W/O LAXMAN SHINDHE
AGE: 40 YEARS,
OCC: HOUSEHOLD WORK,
R/O. GONAGANUR, TAL: RAMDURG,
DIST: BELAGAVI.
THROUGH THEIR G.P.A. HOLDER,
SHRI. SACHIN S/O LAXMAN SHINDHE,
AGE: 26 YEARS, OCC: AGRICULTURE,
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NC: 2023:KHC-D:8415
MFA No. 103765 of 2018
R/O. GONAGANUR-591117,
TAL: RAMDURG,
NOW R/AT: SALAHALLI.
...APPELLANTS
(BY SMT. P.G.NAIK;
SRI. SHRIHARSH A NEELOPANT, ADVOCATES)
AND:
1. SHRI. VITTAL S/O BALASAHEB SHINDHE
AGE: 32 YEARS, OCC: AGRICULTURE,
R/O. KULALI-587113, TAL:MUDHOL,
DIST:BAGALKOT.
2. SHRI. PANDURANG S/O BAHUSAHEB @ BHUSAB
GHATAGE
AGE: 60 YEARS, OCC:AGRICULTURE,
R/O. KULALI-587113, TAL:MUDHOL,
DIST:BAGALKOT.
3. SHRI. RAMESH S/O PANDURANG GHATAGE
AGE: 27 YEARS, OCC:AGRICULTURE,
R/O. KULALI-587113, TAL:MUDHOL,
DIST:BAGALKOT.
4. SHRI. SUBHAS S/O DUNDAPPA BADIGUDADAR
AGE: 40 YEARS, OCC:AGRICULTURE,
R/O. KULALI-587113, TAL:MUDHOL,
DIST:BAGALKOT.
...RESPONDENTS
THIS MFA IS FILED U/O.43 RULE 1(R) OF THE CODE OF
CIVIL PROCEDURE, 1908, AGAINST THE ORDER DATED:
12.06.2018, PASSED IN O.S.NO.104/2017 ON THE FILE OF THE
SENIOR CIVIL JUDGE, RAMDURG, REJECTING THE IA NO.1 FILED
U/O.39 RULE 1 AND 2 OF CPC.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
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NC: 2023:KHC-D:8415
MFA No. 103765 of 2018
JUDGMENT
This appeal is filed by the plaintiffs impugning the
order dated 12.06.2018 passed in OS No.104/2017 on the
file of the Senior Civil Judge at Ramdurg.
2. In a suit for declaration and injunction, the
plaintiffs filed an application under Order XXXIX Rules 1
and 2 of CPC seeking temporary injunction. The said
application is dismissed. Hence, the plaintiffs are in
appeal.
3. The plaintiffs in the said suit claimed that they
are the Class II heirs of the deceased Bayakka and
consequently, they sought injunction against the
defendants.
4. The defendants by way of their defence have
claimed that they are the Class II heirs of the deceased
Bayakka and further contended that the plaintiffs are not
the legal heirs of the deceased Bayakka. To substantiate
their contention, the defendants relied upon the judgment
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MFA No. 103765 of 2018
and decree in OS no.80/2007 on the file of the Civil Judge,
Ramdurg, which is said to be confirmed by the judgment
and decree in RA no.1084/2009 on the file of the III
Additional District Judge, Belagavi.
5. Sri. Shriharsh A.Neelopant, learned counsel
appearing for the respondents at the threshold would
submit that the plaintiffs are claiming under Nanasaheb
Bhosale who was the first defendant in OS no.80/2007 and
in the said suit, there is a finding that Nanasaheb Bhosale
has no right over the suit schedule property and he would
further submits that in view of the aforesaid finding having
attained finality, the plaintiffs cannot claim that they have
right over the suit schedule property.
6. Smt. G.B.Naik, learned counsel appearing for
the appellants would submit that the reliefs claimed in the
present suit were not claimed in the earlier suit and as
such, the earlier suit does not operate as a res-judicata.
It is also her contention that the trial Court could not have
given a finding relating to the title by referring to previous
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MFA No. 103765 of 2018
judgment, namely, OS no.80/2007 and RA no.1084/2009
referred to above. It is her contention that in view of the
finding given by the trial Court on interlocutory
application, the plaintiffs are precluded from establishing
their right over the suit schedule properties and as such,
she would submit that the observation made by the trial
Court in the impugned order relating to the title of the
plaintiffs and defendants have to be set aside.
7. Sri Shriharsh A. Neelopant, learned counsel for
the respondents would submit that since the plaintiffs are
bound by the aforementioned judgment and decree, the
trial Court is justified in dismissing the application seeking
temporary injunction with all observations made in the
said order.
8. This Court has considered the said contention
raised at the Bar and also perused the record. While
disposing of the application seeking temporary injunction,
the Court is concerned with the prima facie aspect of the
matter. Prima facie there is an indication that Nanasaheb
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Bhosale under whom plaintiffs are claiming had suffered
an order in OS 80/2007 which was confirmed in RA
no.108/2009.
9. This being the position, this Court is of the view
that the trial Court has rightly dismissed the application
seeking temporary injunction
10. However, it is to be noticed that it is well
settled position of law that any observation made while
passing the interlocutory order should not come in the way
of the court deciding the matters on merits. While deciding
the case on merits, the court has to take into
consideration the entire evidence led by the plaintiffs as
well as the defendants. By analysing the entire evidence
to be led by the parties, the trial Court shall decide the
case without being influenced by any of the observation
made in the impugned order.
11. Accordingly, this is Court is of the view that
appeal has to be dismissed and trial Court shall proceed to
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MFA No. 103765 of 2018
decide the case without being influenced by any of the
observations made in the impugned order. Hence, the
following:
ORDER
i. The appeal is dismissed.
ii. Both the parties shall appear before the
trial Court for early disposal of the case.
Sd/-
JUDGE
VMB
