Karnataka High Court
Smt. Basavva W/O Basappa Yaligar vs Sri Shivayogi S/O Irappa Sangalad on 10 August, 2023
Bench: Anant Ramanath Byarhj
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NC: 2023:KHC-D:8686
MFA No. 101734 of 2022
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. 101734 OF 2022 (CPC)
BETWEEN:
1. SMT. BASAVVA
W/O BASAPPA YALIGAR
AGED ABOUT 57 YEARS,
OCC: H/W, R/AT: KERI ONI UGARGOL,
TQ: SAUNDATTI,
DIST: BELAGAVI - 590001.
2. YALLAVVA
D/O IRAPPA SANGALAD
AGED ABOUT 53 YEARS,
OCC: H/W, R/AT: SANGALADAR ONI,
UPARAGOL, TQ: SAUNDATTI,
DIST: BELAGAVI-590001.
3. SMT. ANNAPURNA
W/O NAGAPPA GANIGER
AGED ABOUT 49 YEARS,
OCC: H/W, R/AT: PETI ONI NARENDRA,
Digitally
signed by
VIJAYALAXMI
TQ AND DIST: DHARWAD-580001.
VIJAYALAXMI M BHAT
M BHAT Date:
2023.08.11
15:33:02 -
0700
...APPELLANTS
(BY SRI. MRUTYUNJAY TATA BANGI.,ADVOCATE)
AND:
1. SRI. SHIVAYOGI
S/O IRAPPA SANGALAD
AGED ABOUT 45 YEARS,
OCC: AGRICULTURE,
R/AT: SANGALADAVAR ONI,
UGARGOL, TQ: SAUNDATTI,
DIST: BELAGAVI-590001.
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MFA No. 101734 of 2022
2. SRI. MAHADEV
S/O IRAPPA SANGALAD
AGED ABOUT 45 YEARS,
OCC: AGRICULTURE,
R/AT: SANGALADAVAR ONI,
UGARGOL, TQ: SAUNDATTI
DIST: BELAGAVI-590001.
3. SMT. GIRIJA
W/O SANGAPPA YALIGAR
AGED ABOUT 53 YEARS,
OCC: HOUSE WIFE,
R/AT: KERI ONI UGARGOL,
TQ: SAUNDATTI,
DIST: BELAGAVI-590001.
4. SRI. SANGAPPA
S/O SHIVARUDRAPPA TEGGINAMANI
AGED ABOUT 68 YEARS
OCC: AGRICULTURIST
R/AT: BAIRANATTI
TQ: NARAGUND
NOW AT NO.16, 10TH CROSS,
CHANNABASAVESHWAR NAGAR,
TQ AND DIST: DHARWAD-580001.
...RESPONDENTS
(BY SRI. S.R.HEGDE AND SRI. S.S.HEGDE, ADVOCATE FOR R1);
SRI. PRAKASH U UDIKERI, ADVOCATE FOR R3,
R2 AND R4-NOTICE SERVED)
THIS MFA IS FILED U/O.43 RULE 1(R) OF THE CODE OF
CIVIL PROCEDURE, AGAINST THE ORDER DATED 22.02.2022,
PASSED IN O.S.NO.122/2019 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE, SAUNDATTI, AT SAUNDATTI, DISMISSING
THE IA NO.12 FILED U/O. 39 RULE 1 AND 2 R/W SEC.151 OF CPC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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NC: 2023:KHC-D:8686
MFA No. 101734 of 2022
JUDGMENT
Challenging the order passed on IA no.12 in O.S.
no.122/2019 on the file of the Principal Senior Civil Judge,
Saundatti, the plaintiffs are in appeal. The plaintiffs'
application under Order XXXIX Rules 1 and 2 of Civil Code
of Procedure (hereinafter referred to as 'CPC', for short)
seeking temporary injunction to restrain the defendant
no.3 from interfering with the plaintiffs' peaceful
possession and enjoyment of the suit schedule property is
rejected the by the trial Court.
2. Sri. Mrutyunjay Tata Bangi, learned counsel for
the appellants would submit that the suit is for partition
and separation possession of the suit schedule properties,
wherein the plaintiffs claim joint possession of the suit
schedule properties on the premise that the suit schedule
properties are the ancestral proprieties. Though the ex-
parte injunction was granted in favour of the plaintiffs
restraining defendants no.1 and 2 from alienating the suit
schedule properties, the direction to comply with the
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MFA No. 101734 of 2022
requirement of Order XXXIX Rule 3 was not obeyed. As
such, the interim order was not in force. Defendant no.1
appears to have sold the portion of the suit schedule
properties in favour of defendant no.3 during the
pendency of the suit and based on the registered sale
deed, the name defendant no.3 is entered in the property
extract.
3. The trial Court on appreciation of the material
placed on record has come to the conclusion that
defendant no.3 prima facie is in possession of the property
purchased by him under the registered sale deed.
Accordingly, he has refused to grant injunction in favour of
the plaintiffs.
4. Sri Mrutyunjay Tata Bangi, learned counsel for
the appellants would submit that the plaintiffs are not the
signatories to the sale deed and their possession is not
lost, as such, trial Court ought to have granted injunction
in favour of the plaintiffs.
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MFA No. 101734 of 2022
5. This Court has perused the records. As could
be seen from the plaint, there are 8 properties for which
the suit is filed claiming partition and separate possession.
The total extent of the properties would be in excess of 20
acres. Defendant no.3 claims to have purchased 3 acres
of land. Under these circumstances, this Court is of the
view that the case is not made out to interfere with the
discretionary order passed by trial Court in refusing the
relief of temporary injunction.
6. Accordingly, the appeal is dismissed. The order
passed by the trial Court is confirmed.
However, it is made clear that this Court has not
given any finding on the merits of the case. The suit shall
be decided without being influenced by any of the
observations made either in the order refusing temporary
injunction or dismissing this appeal.
Sd/-
JUDGE
VMB,
