Savitri W/O Bhimanagouda Biradar vs Appasab Babanna Sarwad
2023 Latest Caselaw 5490 Kant

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                                                          NC: 2023:KHC-D:8645
                                                           MFA No. 102100 of 2014




                                  IN THE HIGH COURT OF KARNATAKA
                                          DHARWAD BENCH

                              DATED THIS THE 10TH DAY OF AUGUST, 2023

                                               BEFORE
                           THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE

                      MISCELLANEOUS FIRST APPEAL NO. 102100 OF 2014 (CPC)

                      BETWEEN:

                      1.   SMT. SAVITRI
                           W/O BHIMANAGOUDA BIRADAR
                           AGE: 42 YEARS,
                           OCC: HOUSEHOLD AND AGRICULTURE,
                           R/O: MUDHOL,
                           TQ: MUDHOL,
                           NOW AT SAVADI-591304,
                           TQ: ATHANI,
                           DIST: BELGAUM.

                      2.   SHRI. BHIMANGOUDA BALAPPA BIRADAR
                           AGE: 52 YEARS,
                           OCC: MANAGER, LIC,
                           R/O: MUDHOL,
         Digitally
                           TQ: MUDHOL,
         signed by

GIRIJA A
         GIRIJA A
         BYAHATTI
                           NOW AT RAMDURG-591304,
BYAHATTI Date:
         2023.08.11
         15:31:24 -
                           DIST: BELGAUM.
         0700



                      3.   KUMARI. NAMRATA
                           D/O BHIMANGOUDA BIRADAR
                           AGE: 19 YEARS,
                           OCC: STUDENT,
                           R/O: MUDHOL, TQ: MUDHOL,
                           NOW AT SAVADI-591304,
                           TQ: ATHANI,
                           DIST: BELGAUM.

                      4.   KUMARI. KRATIKA
                           D/O BHIMANGOUDA BIRADAR
                           AGE: 17 YEARS, OCC: STUDENT,
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                                     NC: 2023:KHC-D:8645
                                      MFA No. 102100 of 2014




     R/O: MUDHOL,
     TQ: MUDHOL,
     NOW AT SAVADI-591304,
     TQ: ATHANI,
     DIST: BELGAUM.

     BEING MINOR REPRESENTED BY HER NEXT
     FRIEND-NATURAL FATHER
     BHIMANGOUDA BALAPPA BIRADAR-APPELLANT NO.2.

5.   KUMAR. NITIN
     S/O BHIMANGOUDA BIRADAR
     AGE: 12 YEARS, OCC: STUDENT,
     R/O: MUDHOL, TQ: MUDHOL,
     NOW AT SAVADI-591304,
     TQ: ATHANI,
     DIST: BELGAUM.
     BEING MINOR REPRESENTED BY HER NEXT
     FRIEND-NATURAL FATHER
     BHIMANGOUDA BALAPPA BIRADAR APPELLANT NO.2.

                                               ...APPELLANTS

(BY SRI. ROHIT S. PATIL, ADVOCATE)

AND:

SHRI. APPASAB BABANNA SARWAD
AGE: 72 YEARS,
OCC: AGRICULTURE,
R/O: RADDERAHATTI-591240,
TQ: ATHANI, DIST: BELGAUM.
                                              ...RESPONDENT

(BY SRI. RAMACHANDRA A MALI, ADVOCATE)
                          ---

      THIS MFA IS FILED U/O. XLIII RULE 1(R) R/W. SEC. 104 OF
CPC 1908, PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
DTD:26.07.2014 PASSED BY THE PRL. SENIOR CIVIL JUDGE
ATHANI, ON I.A.NO.III IN O.S.NO.71/2013 AND TO ALLOW THE
PRESENT APPEAL WITH COSTS THROUGHOUT BY REJECTING I.A.
NO.III FILED BY THE RESPONDENT IN O.S.NO.71/2013.
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                                      NC: 2023:KHC-D:8645
                                        MFA No. 102100 of 2014




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

                           JUDGMENT

I.A.No.III was filed in O.S.No.71/2013 before the

Principal Senior Civil Judge, Athani (hereinafter referred to

as 'the trial Court', for brevity). In the said application,

plaintiff has sought for temporary injunction against the

defendants in respect of the property bearing Survey

No.375 measuring 3 acres 21 guntas and eastern portion

of Survey No.376 measuring 9 acres 3 guntas (wrongly

typed as western portion in the impugned order).

2. The trial Court noticing the fact that the plaintiff

is claiming right over the aforementioned properties under

the registered gift deed executed by the plaintiff's brother,

granted temporary injunction. Aggrieved by the said

order, all defendants are in appeal.

3. Sri. Rohit S. Patil, learned counsel appearing for

the appellants would submit that, the defendants/

appellants are in possession of the properties for which

NC: 2023:KHC-D:8645 MFA No. 102100 of 2014

injunction is granted and it is his contention that the

plaintiff had borrowed loan of Rs.14,00,000/- from

defendant No.1 and in consideration of the same, had

allowed defendant No.1 to cultivate the properties and to

recover the dues from the income from the suit schedule

properties.

4. Thus, Sri. Rohit Patil submits that the trial Court

could not have granted injunction against the person, who

is in possession of the properties. It is also his contention

that the defendant No.1 is having right over the

properties, as the properties are the coparcenary

properties and injunction could not have been granted

against the co-owner, who is in possession of the

properties. Sri. Rohit Patil, would also contend that the

record of right of the properties would reveal the name of

defendant No.1 as a person in possession of the properties

as on the date of the suit.

5. Learned counsel appearing for the

respondent/plaintiff would submit that, the properties

NC: 2023:KHC-D:8645 MFA No. 102100 of 2014

were purchased by the plaintiff and his brother in the year

1970 under the registered sale deed and as such, the

same is not a coparcenary property and thereafter the

plaintiff's brother gifted the properties under the

registered Gift Deed in favour of the plaintiff and the

defendants do not acquire any right over the properties.

As the properties are self-acquired properties of the

plaintiff, the trial Court is justified in granting injunction

based on the prima facie materials.

6. This Court has considered the contentions

raised at the bar.

7. This is an appeal under Order XLIII Rule 1 of

the Code of Civil Procedure against the order granting

temporary injunction. The order granting temporary

injunction is a discretionary order. The scope of the

Appellate Court under Order XLIII Rule 1 of the Code of

Civil Procedure is limited. The Appellate Court can

interfere in the discretionary order if it is established that

NC: 2023:KHC-D:8645 MFA No. 102100 of 2014

the order under challenge is arbitrary, capricious and

perverse.

8. Having gone through the order, this Court is of

the view that the trial Court has placed reliance on the

registered gift deed in favour of the plaintiff by his brother.

This being the position, prima facie the Court is of the view

that, the contention of the defendants that the properties

are the coparcenary properties are not established.

9. The finding of the trial Court relating to the

ownership and possession is only a prima facie finding and

this should not come in the way of the trial Court in

deciding the case on merits, after considering the evidence

to be led by the parties.

10. Since this Court is of the view that the

impugned order does not suffer from any arbitrariness or

perversity, appeal has to be dismissed.

11. Accordingly, the appeal is dismissed.

NC: 2023:KHC-D:8645 MFA No. 102100 of 2014

12. However, it is made clear that the trial Court

shall decide the case on merits without being influenced by

any of the observations made in the impugned order or

the order passed by this Court, as the observation made in

this order are only confined to the scope of the interim

application filed before the trial Court. Nothing is

expressed on the merits of the matter.

13. Considering the fact that the suit is pending for

the last 10 years, it is expected that both the parties to

the proceedings shall cooperate in the early disposal of the

case and the trial Court shall also make an endeavor to

decide the matter as early as possible, having regard to

the fact that the case is 10 years old.

Sd/-

JUDGE

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