Karnataka High Court
Sri. Raju .S vs Smt. Shanthamma on 6 July, 2023
Bench: H.P.Sandesh
-1-
NC: 2023:KHC:23320
MFA No. 4499 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 4499 OF 2023 (CPC)
BETWEEN:
1. SRI. RAJU. S
S/O. LATE SAKAPPA
AGED ABOUT 56 YEARS,
R/AT NO.68, FIRST FLOOR,
3RD CROSS, RAGHAVENDRANAGAR,
KALIDASA LAYOUT,
SRINAGAR EXTENSION,
BENGALURU- 560 050.
...APPELLANT
(BY SRI RAJENDRA V.G., ADVOCATE)
AND:
1. SMT. SHANTHAMMA
W/O. S. NARAYANSWAMY
AGED ABOUT 50 YEARS
Digitally signed by
SHARANYA T 2. SRI. N. RAJESHKUMAR
Location: HIGH
COURT OF S/O. S. NARAYANSWAMY
KARNATAKA AGED ABOUT 31 YEARS
3. N. VIGNESH
S/O. S. NARAYANSWAMY
AGED ABOUT 29 YEARS
ALL ARE R/AT NO. 79,
3RD CROSS, HOYSALA ROAD,
BRINDAVAN NAGAR,
BENGALURU-560 019.
...RESPONDENTS
(BY SRI C.V. ANNAIAH, ADVOCATE FOR CAVEATOR-R1)
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NC: 2023:KHC:23320
MFA No. 4499 of 2023
THIS MFA IS FILED U/O.43 RULE 1(r) R/W. SECTION 151
OF CPC, AGAINST THE ORDER DATED 01.06.2023 PASSED ON
I.A.NO.1 IN O.S.NO.2495/2019 ON THE FILE OF THE XVI
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU,
CCH-12, ALLOWING THE I.A.NO.1 FILED UNDER ORDER 39
RULE 1 AND 2 R/W. SECTION 151 OF CPC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellant and learned
counsel for the caveator-respondent No.1.
2. This appeal is filed challenging the order dated
01.06.2023 passed on I.A.No.1 in O.S.No.2495/2019 on the file
of the XVI Additional City Civil and Sessions Judge (CCH-12),
Bengaluru, allowing I.A.No.1 filed under Order 39, Rule 1 and 2
read with Section 151 of C.P.C., wherein the plaintiffs have
sought for grant of temporary injunction restraining the
defendant, his agent or anybody claiming under or through him
from interfering with construction work in the suit schedule
property, till disposal of the suit.
3. Learned counsel appearing for the appellant-
defendant appeared and filed the written statement claiming
that a suit is filed by one of the joint family member by name
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MFA No. 4499 of 2023
S. Raju, the defendant herein in O.S.No.3645/2010 against all
the remaining joint family members seeking the relief of
partition and separate possession in respect of the aforesaid
schedule property and obtained an order of status-quo against
the first defendant by name Sri Narayanaswamy, the husband
of first plaintiff where the suit schedule property is also
included. The suit is decreed and an appeal is also filed in
R.F.A.No.2042/2018 and the same is pending before this Court.
It is also contended that, if the construction is continued and
allowed, it will cause prejudice to the rights of the defendant.
4. The learned counsel for the appellant-defendant
would vehemently contend that it is the case of the plaintiffs
that they are the absolute owners in possession of the suit
schedule property and the same is acquired by the first plaintiff
under the registered gift deed dated 31.10.2008 executed by
her husband Sri Narayanaswamy. The very execution of the
gift deed is disputed and if the construction work is undertaken
and continued, the right of the defendant would be curtailed.
Hence, the very order passed by the Trial Court granting an
order of injunction is erroneous and not considered the
contention putforth by the appellant-defendant before the Trial
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MFA No. 4499 of 2023
Court and the Trial Court committed an error in allowing the
application. Hence, it is requires interference of this Court.
5. Per contra, learned counsel for the caveator-
respondent No.1 i.e., the first plaintiff would contend that the
first plaintiff, based on the gift deed executed by her husband,
started to put up construction and earlier they were residing in
A.C.roof sheet and the same was removed and now, the
appellant-defendant is interfering with the possession. The
counsel would submit that already this appellant is residing in
the rear portion of the property, wherein they have constructed
the building and now, interfering with the possession of the
plaintiffs and the Trial Court, having considered the material on
record, taken note of the same and rightly granted an order or
injunction. The learned counsel for the respondents also would
submit that the plaintiffs will not claim any equity if the
appellant-defendant succeeds in the suit and even they are
ready to handover the constructed building to the appellant-
defendant.
6. Having heard the respective counsel and also on
perusal of the material available on record, it is the case of the
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MFA No. 4499 of 2023
first plaintiff that her husband had executed a gift deed on
31.10.2008. After acquiring the schedule property, khatha has
been transferred in the name of the first plaintiff and started to
put up construction in the schedule premises and at that time,
the defendant started to obstruct for the construction. It is also
the claim that the appellant-defendant is also residing in the
rear portion of the very same property and earlier, the property
was purchased by one Sri Sakappa on 23.10.1980 and there
was partition among the brothers and in terms of the partition,
the husband of the first plaintiff got the property and he gifted
the property in favour of the wife. It is the claim of the
appellant-defendant that already suit was filed, wherein a
decree was passed granting 1/5th share and an appeal is also
filed before this Court and the same is pending. It is also not
in dispute that the plaintiffs are in possession of the schedule
premises and khatha is also transferred in the name of the first
plaintiff and when the construction started interference is made
by the appellant-defendant herein.
7. Having taken note of the same, the Trial Court also
considered the contention of the appellant-defendant in Para
Nos.11 and 12 and comes to the conclusion that, if interference
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MFA No. 4499 of 2023
is continued, it will cause prejudice to the rights of the
plaintiffs. It is also observed that to arrive at an efficacious
conclusion on other circumstances as averred by both the
sides, it requires a full-fledged trial. Hence, the Trial Court has
formed an opinion that if this application is rejected, it will
cause irreparable loss to the first plaintiff, who has taken up
the construction.
8. It is also important to note that, when the
respondent No.1 has taken up construction work and the
counsel also would submit that, if the appellant-defendant
succeed in respect of the suit schedule property, the first
plaintiff will not claim any equity and photographs produced
also disclose that already construction is commenced and at
that juncture, when an interference was made by the appellant-
defendant, the suit was filed and interim order is sought and
the same is considered by the Trial Court. When the learned
counsel for the caveator respondent No.1-first plaintiff fairly
submits that, if the appellant-defendant succeeds in the matter,
she will not claim any equity, hence, I do not find any merit in
the appeal to restrain the first plaintiff in continuing the
construction work.
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MFA No. 4499 of 2023
Accordingly, the appeal is dismissed.
Sd/-
JUDGE
ST
