Sri R Lakshmikanth vs Sri R Prasanna Kumar
2023 Latest Caselaw 5738 Kant

                                                 -1-
                                                            NC: 2023:KHC:29315
                                                          MFA No. 8085 of 2022




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 18TH DAY OF AUGUST, 2023

                                                BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                   MISCELLANEOUS FIRST APPEAL NO. 8085 OF 2022 (CPC)

                   BETWEEN:

                   1.    SRI R. LAKSHMIKANTH
                         S/O N.RANGASWAMY,
                         AGED ABOUT 48 YEARS,
                         R/AT N.H.4 ROAD,
                         DUPLEX HOUSE, MALLIKAPURA,
                         LAKSHMI GANESH CLEANING AND
                         FLOUR MILL, SIRA,
                         TUMKUR DISTRICT-572137.

                         AND ALSO
                         SRI LAKSHMIKANTHA
                         C/O VIJAYABASKAR,
                         R/AT NO.362, 'C'
                         4TH MAIN, 1ST CROSS,
Digitally signed
by SHARANYA T            SRI BHANASHANKARI
Location: HIGH           VIJAYANAGARA,
COURT OF                 BENGALURU-560 040.
KARNATAKA
                                                               ...APPELLANT

                           (BY SRI RAGHAVENDRA A.KULKARNI, ADVOCATE)
                   AND:

                   1.    SRI R. PRASANNA KUMAR
                         S/O N. RANGASWAMY
                         AGED ABOUT 40 YEARS,
                         R/AT N.H.4 ROAD, DUPLEX HOUSE,
                         GROUND FLOOR, MALIKAPURA,
                         LAKSHMI GANESH CLEANING AND
                         FLOUR MILL, SIRA
                                  -2-
                                               NC: 2023:KHC:29315
                                             MFA No. 8085 of 2022




    TALUK DISTRICT-572137.
                                                    ...RESPONDENT

          (BY SRI C. NARASIMHA MURTHY, ADVOCATE)


     THIS MFA IS FILED U/O.43 RULE 1(r) R/W SECTION 151
OF CPC, AGAINST THE ORDER DT.18.10.2022 PASSED ON IA
NO.2 AND 3 IN O.S.NO. 152/2022 ON THE FILE OF THE
SENIOR CIVIL JUDGE, JMFC, SIRA, REJECTING IA NO.2 AND 3
FILED U/O.39 RULE 1 AND 2 OF CPC.

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


                           JUDGMENT

Heard the learned counsel for appellant and learned

counsel for respondent.

2. This appeal is filed by the appellant challenging the

order of the Trial Court dated 18.10.2022 wherein sought for

an order of injunction restraining the defendant to disturb the

plaintiff's share and also interfering in respect of the Lakshmi

ganesh cleaning and Flour Mill in which the Trial Court rejected

the applications IA No.2 and 3 filed under Order 39 Rule 1 and

2 of CPC.

3. The factual matrix of the case of the

plaintiff/appellant before the Court that the suit schedule

properties are belong to the father of the plaintiff late

NC: 2023:KHC:29315 MFA No. 8085 of 2022

Sri.N.Rangaswamy died in 12.08.2020 leaving behind his wife

as his legal heir and then the mother of the plaintiff was also

died on 05.08.2021 leaving behind her children as their legal

heirs. The plaintiff is the elder son and the defendant is the

younger son. The plaintiff's father i.e., Sri.N.Rangaswamy

during his life time had acquired site property bearing

assessment No.1570:1492:6188 measuring to an extent of

37½ feet, north to south 30 feet situated at NH-4 road,

Mallikapura, Lakshmi Ganesh Cleaning and Flour Mill, Sira

taluk, Tumkur District and ancestral property in which land

bearing Sy.No.313 measuring to an extent of 2.13 acres

situated at Magodu village, Kasaba hobli, Sira Taluk which are

morefully described in the schedule. Ever since the date of

purchase of the suit schedule properties, the father of the

plaintiff, plaintiff and defendant are in peaceful possession and

enjoyment of the suit schedule properties. Subsequently, the

plaintiff is an employee in KSRTC department since from 1988,

out of his hard earned money, the plaintiff has constructed a

duplex residential house by keeping the common stair case in

and out over the suit schedule property by obtaining all civil

amenities. Thereafter, the father of the plaintiff died on

NC: 2023:KHC:29315 MFA No. 8085 of 2022

12.08.2020 and at the time of the death of the plaintiff's

mother, there was 2.50 gms of gold and house articles worth of

Rs.3,00,000/- by leaving behind her children as legal heirs to

succeed her estate. When the plaintiff and defendant are

staying together in different portion of the duplex house in the

said property, ever since the date of construction of the

residential house the plaintiff has invested the money for the

flour mill and flouring machine. The father of the plaintiff

looking after the business Lakshmi Ganesh cleaning and flour

mill and he was enjoying both ancestral property and the

property which he had acquired. After the demise of the

plaintiff's father and mother, the plaintiff and defendant are

continued to be peaceful possession and enjoyment of the suit

schedule properties. All the title deed and other documents of

the suit schedule property is standing in the name of the

defendant earlier which was in the name of their father i.e,

Sri.Rangaswamy.

4. It is also the contention of the plaintiff that the suit

schedule properties are Hindu undivided joint family properties

of the plaintiff and defendant and they are in joint possession

and enjoyment of the same. The plaintiff submits the father of

NC: 2023:KHC:29315 MFA No. 8085 of 2022

the plaintiff was suffering from ill health and he was under

treatment and even he was not in a position to decide what is

right and what is wrong and by taking advantage of this, the

defendant indulged in creation of document of Will. The plaintiff

is the care taker of the father and he has made hectic effort for

the hospitalization of his father and the averments made in the

said Will are not the true fact. The plaintiff himself has met the

medical expenses of his father and got reimburse the same

from the KSRTC department. After the death of their father

misunderstanding were developed among them causing

obstruction in using of the house and hence, the suit is for the

relief of partition and separate possession of 50% of his share

and consequential relief.

5. Inter-alia the plaintiff has filed an application to

restrain the defendant causing interference in enjoyment of the

property left by his father and at the first instance exparte

temporary injunction has been granted in favour of the plaintiff

and after the service of notice the defendant has appeared

before the Court and filed written statement and the same has

been adopted as statement of objections to the I.A.

NC: 2023:KHC:29315 MFA No. 8085 of 2022

6. The Trial Court having considered both the

pleadings of the plaintiff and also the defendant passed the

common order on IA No.1 to 3 and rejected IA No. 2 and 3 and

allowed IA No.1. Being aggrieved by the order of the Trial Court

in rejection of IA No. 2 and 3, the present appeal is filed before

this Court.

5. The counsel would vehemently contend that this

Court after filing this appeal passed an interim order on

18.04.2023 wherein an interim arrangement is made without

prejudicing the rights and contentions of both the parties; the

appellant is permitted to reside in the first floor along with

respondent in item No.1 of 'A' schedule property till the next

date of hearing. The respondent has also appeared and filed an

application under Order 39 Rule 4 of Code of Civil Procedure

before this Court to vacate an interim order granted by this

Court.

6. The main contention of the counsel appearing for

the appellant that the Trial Court has committed an error in

rejecting the applications filed under Order 39 Rule 1 and 2 of

CPC i.e., IA No.2 and 3 and fails to take note of the fact that

NC: 2023:KHC:29315 MFA No. 8085 of 2022

the suit schedule properties are Hindu undivided joint family

properties and there is no division between the appellant and

respondent. The site in the suit schedule property was

purchased by the father of the appellant and appellant joined

the duty and constructed the house and invested the money for

the construction of the building and also the construction of the

cleaning and flouring mill and same has not been considered by

the Trial Court.

7. The counsel for appellant would vehemently

contend the only reason assigned by the Trial Court in rejecting

the applications that the plaintiff has not made his sisters as

parties to the suit, which seeks that the plaintiff has not having

good intention and rejected the applications IA No.2 and 3.

Hence, same is erroneous and it requires interference.

8. Per Contra counsel appearing for the respondent

submits that there is no dispute that the suit schedule property

belongs to the father. The counsel also would submit that his

father during his life time has executed Will in favour of the

respondent. The counsel has also brought to the notice of this

Court that the averments made in the plaint and even though

NC: 2023:KHC:29315 MFA No. 8085 of 2022

he has pleaded in the plaint with regard to creation of the Will

is concerned, no relief is sought in the prayer except seeking

relief of partition and separate possession of 50% share. The

Trial Court taking note of the fact that the respondent is in his

possession and continued in possession of the property and he

is not having any intention to defeat the right of the appellant

herein, even the appellant is ready to give the share in the

ancestral property also, but there is a Will in favour of

respondent executed by his father.

9. Having heard the learned counsel for appellant and

counsel appearing for the respondent, admittedly the property

is purchased by the father is not in dispute. The respondent

claims that Will has been executed by his father during his

lifetime. The plaintiff has questioned the same in the plaint

itself that taking the advantage, it appears that he has created

the document of Will even his father was not in a position to

decide what is wrong and what is right. The same is pleaded in

paragraph No.9 and also pleaded that when he has joined the

KSRTC department, he was shifted in 1988, he was also

invested the money for the construction of the house and issue

NC: 2023:KHC:29315 MFA No. 8085 of 2022

is with regard to whether he has invested the money or not is a

matter of Trial. The fact that the property is purchased by the

father is not in dispute i.e., site and building is also

constructed. The respondent also filed an application under

Order 39 Rule 4 of CPC and affidavit in support of application

wherein he has specifically pleaded that residing in the ground

floor situated behind the Lakshmi ganesh cleaning and flour

mill, but denies the fact that building is not a duplex house, but

the fact that the first floor is also in existence is not in dispute.

10. The main contention of the counsel appearing for

respondent that in view of passing an interim order by the Trial

Court the appellant herein removed the belongings of the

respondent and also produced photographs before the Court for

having removed the belongings kept by the respondent in the

room in the first floor of the duplex building. The photographs

also clearly disclose that the room is also locked and the fact

that the site is purchased by the father is not in dispute and

construction made is also not in dispute and only dispute is

with regard to the residing in the said building.

- 10 -

NC: 2023:KHC:29315 MFA No. 8085 of 2022

11. The very averment made in the affidavit in

paragraph No.6 of the respondent is clear that he is residing

along with his family in a residential house situated behind

Lakshmi ganesh cleaning and flour mill, when such pleading is

made that he is residing in ground floor residential house

situated behind the Lakshmi ganesh cleaning and flour mill and

finally he is also having the ancestral property and issue is with

regard to the executing of the Will is also to be considered by

the Trial Court and when such being the case, it is appropriate

to confirm the order passed by this Court vide order dated

18.04.2023 and allow the appellant to stay in the first floor

whenever he visits the village, since, he is permanently residing

in Bengaluru and also Bengaluru address is also discloses in the

plaint. The respondent shall not restrain him to stay in the first

floor when he visits the village, since there was no partition still

among the parties and also other contention that the appellant

had invested the money for the construction and the same is

also a matter of Trial. When the respondent himself has

pleaded in the affidavit itself that he is residing in the ground

floor behind the said cleaning mill and also the appellant herein

also taking the advantage of this interim arrangement made in

- 11 -

NC: 2023:KHC:29315 MFA No. 8085 of 2022

the appeal also should not cause the obstruction to the

respondent in using the same and this Court order dated

18.04.2023 is very clear that it is only interim arrangement,

without prejudice to the right and contention of the both

parties, the appellant is also permitted to reside in the first

floor along with the respondent in item No.1 of 'A' schedule

property till next date of hearing and same is continued till

disposal of the suit and same is made as interim arrangement.

The respondent should not restrain the appellant whenever the

appellant comes to village for his stay in the said first floor,

with these observations the appeal is disposed of.

12. The Trial Court is directed to dispose of the matter

within 6 months from today.

13. Both the parties are hereby directed to keep the

first floor premises open i.e., not to keep the said premises

under lock till the disposal of the suit for the convenience and

utilization of both the parties.

14. The counsels and parties are directed to co-operate

with the Trial Court in dispose of the suit within six months.

- 12 -

NC: 2023:KHC:29315 MFA No. 8085 of 2022

15. The Registry is directed to communicate this order

to the Trial Court forthwith.

Sd/-

JUDGE RHS