Karnataka High Court
Sri Govindaraju vs Sri Venkatesh on 14 June, 2023
Bench: H.P.Sandesh
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NC: 2023:KHC:20459
MFA No. 7956 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO.7956 OF 2022 (CPC)
BETWEEN:
1. SRI GOVINDARAJU
S/O YERRAPPA
AGED ABOUT 56 YEARS
R/AT KURUBARAKUNTE VILLAGE
KASABA HOBLI, YELUR POST
DEVANAHALLI TALUK
2. SMT. GOWRAMMA
W/O SEENAPPA
AGED ABOUT 69 YEARS
R/AT GOWDANAHALLI VILLAGE
BASETTAHALLI POST
Digitally signed
by SHARANYA T SIDDLAGHATTA TALUK
Location: HIGH CHIKKABALLAPURA DISTRICT
COURT OF
KARNATAKA
3. SMT. LAKSHMIDEVAMMA
W/O SRIRAM
AGED MAJOIR
R/AT HARAGADDE VILLAGE
JIGANI HOBLI
ANEKAL TALUK
...APPELLANTS
(BY SRI. SHARATH N, ADVOCATE)
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MFA No. 7956 of 2022
AND:
1. SRI VENKATESH
S/O YERRAPPA
AGED ABOUT 56 YEARS
R/AT KURUBARAKUNTE VILLAGE
KASABA HOBLI, YELUR POST
DEVANAHALLI TALUK
2. SMT. NAGARATHNAMMA
W/O LOKESH
AGED MAJOR
R/O MEENAKUNTE HOSUR
JALA HOBLI, DEVANAHALLI TALUK
3. SMT. PARVATHAMMA
W/O VENKATESH
AGED ABOUT 52 YEARS
R/AT KURUBARAKUNTE VILLAGE
KASABA HOBLI, YELUR POST
DEVANAHALLI TALUK
...RESPONDENTS
(BY SRI C SHANKAR REDDY, ADVOCATE FOR R1 AND R3;
NOTICE TO R2 IS D/W)
THIS MFA IS FILED U/O 43 RULE 1(r) R/W SECTION
151 OF CPC, AGAINST THE ORDER DATED 18.04.2022
PASSED ON I.A.NO.13 IN O.S.NO.61/2008 ON THE FILE
OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC,
DEVANAHALLI AND ETC.
THIS APPEAL COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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NC: 2023:KHC:20459
MFA No. 7956 of 2022
JUDGMENT
This appeal is filed challenging the order passed by
the Trial Court on I.A.No.13 filed under Order XXXIX Rules
1 and 2 read with Section 151 of CPC wherein prayed to
restrain the plaintiffs, their agents or anybody claiming
though them from changing the nature of the suit
schedule property item No.8 by putting up construction or
digging any trenches therein till the disposal of the suit.
2. The learned counsel appearing for the
appellants would vehemently contend that the very
impugned order come in the way of restraining the
appellants in constructing a building and the building in
which they are residing is collapsed. Hence, they are
constructing a new building.
3. The learned counsel appearing for respondent
Nos.1 and 3 would vehemently contend that if the
appellants are constructing the building in the very same
place where the building was collapsed, they have no
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MFA No. 7956 of 2022
objection for the same but the appellants are putting up
the construction in different place that too without
obtaining any permission or licence and if the appellants
constructed the building in the said place, it amounts to
changing of nature and the Trial Court also granted the
interim order having taken note of the material on record.
Hence, it does not requires any interference.
4. The learned counsel for the appellants would
submits that no permission is required under Section 95
(1) of the Karnataka Land Revenue Act, if it is constructed
in the farmhouse. The learned counsel for respondent
Nos.1 and 3 brought to notice of this Court that the same
is not pleaded before the Trial Court. The very photograph
discloses that they are going to put up the construction in
some other place which amounts to changing of nature of
the premises and even though they claims that they are
not claiming any equity hence, the same cannot be
permitted.
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MFA No. 7956 of 2022
5. Having heard the respective counsel appearing
for the parties, it discloses that the suit is filed for the
relief of partition and the prayer is very clear that
declaring that each of the plaintiffs are entitled 1/6th
share, right and interest in the suit schedule properties
and for partition of suit schedule properties by meets and
bounds by putting the plaintiffs in possession of their
respective 1/6th share in the suit schedule properties. Now
the plaintiffs have taken up the construction work in the
suit schedule property item No.8. The suit is filed for the
relief of partition and separate possession and the suit
schedule property belongs to the family and the property
which is in dispute, the defendants claiming their right
over the said property based on the Will executed by
defendant No.1 and all the records are standing in the
name of defendant No.1. The issue is also with regard to
the Will is concerned, the same has to be decided before
the Trial Court. When such being the case, it is not a fit
case to interfere with the findings of the Trial Court.
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MFA No. 7956 of 2022
However, the Trial Court can be directed to dispose off the
matter within three months.
6. The respective counsel submit that they will
assist the Trial Court in disposal of the suit within three
months. The suit is filed in the year 2008 i.e., almost one
and half decade has been elapsed and evidence has been
commenced. Hence, it is appropriate to direct the Trial
Court to dispose off the suit within three months. The
respective counsel as well as the parties are directed to
assist the Court in disposal of the suit within three months
and also directed not to seek unnecessary adjournments
before the Trial Court. Accordingly, the appeal is disposed
off.
Sd/-
JUDGE
SN
