Karnataka High Court

Sri.H.R. Jayaramareddy vs Smt. Narasamma on 19 December, 2023

Author: H.T. Narendra Prasad

Bench: H.T. Narendra Prasad

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                                                      MFA No. 7552 of 2023




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 19TH DAY OF DECEMBER, 2023

                                            BEFORE
                        THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                   MISCELLANEOUS FIRST APPEAL NO. 7552 OF 2023 (CPC)
                   BETWEEN:

                   1.    SRI.H.R. JAYARAMAREDDY
                         S/O LATE N RAMAIAH
                         AGED ABOUT 63 YEARS

                   2.    SMT NAGAMMA
                         W/O LATE N RAMAIAH
                         AGED ABOUT 83 YEARS
                         BOTH ARE R/AT NO 1
                         HONNENAHALLI VILLAGE
                         RAJANUKUNTE POST
                         YELAHANKA TALUK AND HOBLI
                         BANGALORE NORTH 560064.
                                                             ...APPELLANTS
                   (BY SRI.G.L. VISHWANATH, SENIOR COUNSEL FOR
                       SMT. MANASA B RAO, ADVOCATE)
Digitally signed
by
DHANALAKSHMI
MURTHY             AND:
Location: High
Court of
Karnataka          1.    SMT. NARASAMMA
                         D/O LATE HANUMANTHAPPA
                         W/O RAMAREDDY
                         AGED ABOUT 88 YEARS
                         R/AT THIRUPALYA VILLAGE
                         ANEKAL TALUK, JIGANI HOBLI
                         BOMMSANDRA POST
                         NEAR MADDURAMMA TEMPLE
                         HEBBAGODI, VINAYAKA NAGAR
                         BANGALORE URBAN DISTRICT.
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                                   MFA No. 7552 of 2023




2.   SRI H HANUMAIAH
     S/O LATE HANUMANTHAPPA
     AGED ABOUT 83 YEARS

3.   SRI H BYAPPAREDDY
     S/O LATE HANUMANTHAPPA
     AGED ABOUT 76 YEARS

4.   SRI H RAMAKRISHNA REDDY
     S/O LATE HANUMANTHAPPA
     AGED ABOUT 63 YEARS

5.   SRI H ANANDAREDDY
     S/O LATE HANUMANTHAPPA
     AGED ABOUT 58 YEARS

6.   SRI H RAJANNA
     S/O LATE HANUMANTHAPPA
     AGED ABOUT 56 YEARS

7.   SRI H BHOOPALA
     S/O LATE HANUMANTHAPPA
     AGED ABOUT 54 YEARS
     R2 TO R7 ARE R/AT
     HONNENAHALLI VILLAGE
     RAJANAKUNTE POST
     YELAHANKA TALUK AND HOBLI
     BANGALORE NORTH 560064.

8.   SMT SUJATHA
     D/O LATE HANUMANTHAPPA
     W/O RAMACHANDRA REDDY
     AGED ABOUT 51 YEARS
     R/AT DADDYS GARDEN ROAD
     HEBBAGODI, ANEKAL TALUK
     ELECTRONIC CITY POST, ATHIBELE ROAD
     BANGALORE 560100.

9.   SRI M RAMAIAH
     S/O LATE MUNIYAPPA
     SINCE DEAD BY LRS
     SMT JAYAMMA
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                                   MFA No. 7552 of 2023




    W/O LATE M RAMAIAH
    AGED ABOUT 70 YEARS

10. H R VIJAYAKUMAR
    S/O LATE M RAMAIAH
    AGED ABOUT 52 YEARS

11. R SRINIVAS
    S/O LATE M RAMAIAH
    AGED ABOUT 47 YEARS
    R9 TO R11 ARE R/A NO.28
    REDDY COLONY, HONNENAHALLI
    RAJANUKUNTE POST, BANGALORE-560064.

12. SMT JAYALAKSHMI
    W/O RAJAPPA
    AGED ABOUT 45 YEARS
    R/AT KEMPAIAHNAPALYA
    BIDADI HOBLI
    KANCHIGARANAHALLI POST
    RAMANAGARA DISTRICT -562109.

13. SRI M GOVINDAREDDY
    S/O LATE MUNIYAPPA
    AGED ABOUT 70 YEARS

14. SRI M KRISHNAREDDY
    S/O LATE MUNIYAPPA
    SINCE DEAD BY LRS
    SMT UMA
    W/O LATE M KRISHNA REDDY
    AGED ABOUT 55 YEARS

15. K HEMANTH
    S/O LATE M KRISHNA REDDY
    AGED ABOUT 30 YEARS

16. K GAUTHAM
    S/O LATE M KRISHNA REDDY
    AGED ABOUT 25 YEARS
    R14 TO R16 ARE R/AT
    HONNENAHALLI VILLAGE
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                                  MFA No. 7552 of 2023




    RAJANUKUNTE POST
    YELAHANKA TALUK & HOBLI
    BANGALORE-560064.

17. SRI H R RAJAGOPAL REDDY
    S/O LATE N RAMAIAH
    AGED ABOUT 62 YEARS

18. SRI H R MANJUNATH REDDY
    S/O LATE N RAMAIAH
    AGED ABOUT 60 YEARS

19. SRI H R RAMESH REDDY
    S/O LATE N RAMAIAH
    AGED ABOUT 58 YEARS

20. SRI H R SHANKAR REDDY
    S/O LATE N RAMAIAH
    AGED ABOUT 56 YEARS

21. SRI H R PRAKASH
    S/O LATE N RAMAIAH
    AGED ABOUT 53 YEARS
    R 17 TO 21 ARE R/AT
    HONNENAHALLI VILLAGE
    RAJANAKUNTE POST
    YELAHANKA TALUK AND HOBLI
    BANGALORE NORTH-560064.

22. SRI RAJU CHOUDHARY
    KANAHA GRANITES
    SHOW ROOM NO.8
    HONNENAHALLI VILLAGE
    RAJANAKUNTE POST
    DODDABALLAURA ROAD
    YELAHANKA TALUK AND HOBLI
    BANGALORE-560064.

23. SRI K M MANJUNATH
    KUMAR GRANITES HONNENAHALLI
    DODDABALLAPURA ROAD
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                                      MFA No. 7552 of 2023




    YELAHANKA TALUK AND HOBLI
    BANGALORE-560064.
24. SRI JAGADISH
    SRI VINAYAKA TIMBER AND WOOD WORKS
    NO.29/3, DODDABALLAPURA MAIN ROAD
    HONNENAHALLI
    OPP SRI RANGA KALYANA MANTAPA
    YELAHANKA, BANGALORE-560064
                                      ...RESPONDENTS
(BY SRI. ASHOK HARANAHALLI, SENIOR COUNSEL, FOR
    SRI.V F KUMBAR., ADVOCATE FOR R1 TO R16:
    SRI. B. RAMESH, ADVOCATE FOR R17 TO R21:
    NOTICE TO R22 TO 24 IS UNSERVED)


     THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED: 31.10.2023 PASSED ON I.A.
NOs. 1 AND 2 IN O.S.NO.218/2021 ON THE FILE OF THE VII
ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, BENGALURU
RUARL DISTRICT, BENGALURU, DISMISSING THE I.As FILED
UNDER ORDER 39 RULE 1 AND 2 OF CPC.

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

1. This appeal is filed by the plaintiffs under Order XLIII

Rule 1 (r) of the Code of Civil Procedure, 1908, challenging

the order dated 31.10.2023 passed by the II Additional

Senior Civil Judge and JMFC, Bengaluru in

O.S.No.218/2021 on I.A.Nos.1 and 2 filed by the plaintiffs

under Order XXXIX Rules 1 and 2 of CPC whereby the trial

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Court has dismissed the said applications filed against the

defendants.

2. For the sake of the convenience, the parties are

referred to as per their ranking before the Trial Court.

3. The plaintiffs have filed the suit for partition and

separate possession. Along with the plaint, they have file

I.A.Nos.1 and 2 seeking ad-interim order of Temporary

Injunction restraining the defendants from alienating the

suit schedule properties and also from changing the nature

and character of the suit schedule item Nos.1 to 3,

pending disposal of the suit. The trial Court had granted

ad-interim order on 04.02.2021 restraining the defendants

from alienating and not to change the nature of the suit

schedule property.

4. After service of summons, the defendants appeared

through their counsel. The trial Court after hearing the

parties, has dismissed the applications filed by the

plaintiffs under Order XXXIX Rule 1 and 2 of CPC by

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impugned order dated 31.10.2023. Being aggrieved by the

same, the plaintiffs are before this Court in this appeal.

5. Sri G. L. Vishwanath, learned Senior counsel

appearing for counsel Smt. Manasa B. Rao, for the

appellants-plaintiffs has raised the following contentions:

a) Firstly, the suit schedule property is joint family

properties of plaintiffs and defendants. They are jointly in

possession of the properties. Since the plaintiffs have

legitimate share in the suit schedule properties, they have

filed the suit for partition and separate possession.

b) Secondly, the suit schedule properties are

agricultural properties. As on today, they stand in the joint

names of plaintiffs and defendants. Now, the defendants

are trying to change the nature of the suit schedule

properties and also creating third party interest over the

suit schedule properties. So far, they have not put up any

construction in the suit schedule properties, but now, they

are trying to put up construction in the suit schedule

properties. Now, they have produced sanction plan and

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permission issued by the competent authority before this

Court. The same is contrary to the law.

c) Thirdly, the lands in dispute are agricultural lands

and lands have not yet been converted under the Land

Revenue Act, 1964. Therefore, there cannot be a

permission granted by the local authority for putting up

construction in the suit schedule properties.

d) Fourthly, if the defendants are permitted to put up

construction in the suit schedule properties, it will affect

the rights of the plaintiffs. The trial Court without

considering these aspects of the matter, has erred in

dismissing the applications filed by the plaintiffs.

e) Fifthly, before passing the impugned order dated

31.10.2023, the plaintiffs had the benefit of ex-parte

Temporary Injunction granted by the trail Court

restraining the defendants from alienating and changing

the nature of the suit schedule properties. Hence, he

sought for allowing the appeal.

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6. Per contra, Sri Ashok Haranahalli, learned Senior

counsel appearing for the respondents-defendants has

raised the following contentions:

a) Firstly, the defendants are in possession of the suit

schedule properties. They have put up construction in the

suit schedule properties and they have obtained the

permission from the local authority for construction of the

building in the suit schedule item Nos.1 to 3.

b) Secondly, along with the memo, they have produced

copy of the permission granted by the Panchayath and

approval of the plan. After obtaining the necessary

permission from the Competent Authority, they have put

up construction. Considering the contentions raised in the

written statement and document produced before the trial

Court, the trial Court has rightly rejected the applications

filed by the plaintiffs. Hence, he sought for dismissal of the

appeal.

7. Heard the learned senior counsel appearing for the

parties. Perused the appeal papers.

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8. It is not in dispute that the plaintiffs have filed the

suit for partition and separate possession in respect of the

suit schedule properties. Along with plaint, they have filed

I.A.Nos.1 and 2 under Order XXXIX Rule 1 and 2 of CPC

seeking ad-interim order of Temporary Injunction

restraining the defendants from alienating the suit

schedule properties and from changing the nature and

character of the suit schedule properties.

9. At the first instance, the trial Court has granted an

ex-parte injunction order restraining the defendants from

alienating the suit schedule properties and also parties

were directed to maintain status-quo, in respect of the suit

schedule properties. The trial Court, after hearing the

parties, by impugned order has dismissed the applications

filed by the plaintiffs.

10. Now, both the parties have produced the documents

before this Court to show that they are in possession of

the respective properties and there is dispute in respect of

the possession also. In respect of share of the properties

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and partition is concerned, it has to be decided only after a

full fledge trial by the trial Court.

11. Today, respondent Nos.17 to 21/defendant Nos.12 to

16 have produced a memo along with copy of the

permission granted by the Panchayath and plan and

licence approved by the competent authority to show that

they have obtained necessary permission to put up

construction.

12. Under these circumstances, I am of the opinion that

respondent Nos.17 to 21 may be permitted to put up

construction in the suit schedule properties, subject to

condition that if the plaintiffs succeed in the suit, they

shall not claim any equity and they have to restore the

possession in favour of the plaintiffs as they exist today.

To that effect, the defendants shall file an affidavit stating

that they will not claim any equity, if they fail in the suit.

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13. Accordingly, I pass the following order:

ORDER

a) The appeal is disposed of.

b) The impugned order dated 31.10.2023 passed

by the trial Court in O.S.No.218/2021 on I.A.Nos.1

and 2 is modified.

c) The parties are directed not to alienate the suit

schedule properties, till disposal of the suit.

d) Respondent Nos.17 to 21/defendant Nos.12 to

16 are permitted to put up construction in the suit

schedule item Nos.1 to 3 of the suit schedule

properties, subject to the condition that they have to

file an affidavit before this Court from the date of

receipt of certified copy of this order stating that they

will not claim any equity, if they fail in the suit and

they have to restore the vacant possession of the suit

schedule properties to the succeeding parties.

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e) It is made clear that this order will not come in

the way of plaintiffs to challenge the approval of plan

or licence issued by the competent authority, if law

permits.

f) It is also made clear that any observation made

in this order is only limited to disposal of the

I.A.Nos.1 and 2 filed under Order 39 Rule 1 and 2 of

CPC.

g) The trial Court after hearing the parties is

directed to dispose of the suit, in accordance with