Karnataka High Court
Smt Prema Kumari N R vs Smt. Mariyamma on 19 June, 2023
Bench: H.P.Sandesh
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NC: 2023:KHC:21003
MFA No. 2761 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 2761 OF 2023 (CPC)
BETWEEN:
1. SMT. PREMA KUMARI N.R.
D/O. LATE G. RAJANNA
AGED ABOUT 48 YEARS,
R/AT NO.339, KOTTIGEPALYA
BDA LAYOUT,
BANGALORE - 560 072.
...APPELLANT
(BY SRI. G.S. VENKAT SUBBA RAO, ADVOCATE)
AND:
1. SMT. MARIYAMMA
W/O. LATE G. RAJANNA
AGED ABOUT 68 YEARS
Digitally signed 2. N.R. MUNIRAJU
by SHARANYA T
S/O. LATE G.RAJANNA
Location: HIGH
COURT OF AGED ABOUT 50 YEARS
KARNATAKA
RESPONDENTS 1 AND 2 ARE
R/AT NO.320, NELAGADARANAHALLY
YESHWANTHAPURA HOBLI
BANGALORE NORTH TALUK-560 051.
...RESPONDENTS
(BY MS. MONICA PATIL, ADVOCATE FOR C/R1 AND R2)
THIS MFA IS FILED U/O.43 RULE 1(r) OF CPC, AGAINST
THE ORDER DT. 24.03.2023 PASSED ON I.A.NO.7 IN
O.S.NO.2536/2020 ON THE FILE OF THE XII ADDITIONAL CITY
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NC: 2023:KHC:21003
MFA No. 2761 of 2023
CIVIL JUDGE, BENGALURU CITY, DISMISSING I.A.NO.7 FILED
U/O.39 RULE 1 AND 2 OF CPC.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellant and learned
counsel for the respondents.
2. This appeal is filed challenging the order passed on
I.A.No.7 filed under Order 39, Rules 1 and 2 of C.P.C., wherein
interim-injunction is sought restraining the defendant No.2
from putting up any construction in item No.12 of the suit
schedule properties measuring 1 acre, 10 guntas and the same
is dismissed by the Trial Court.
3. Learned counsel for the appellant-plaintiff would
contend that the Trial Court committed an error in dismissing
the application, in coming to the conclusion that construction is
put up in agricultural land and the defendants also categorically
contend that construction is not put up for letting out the same
for any commercial activities and the plaintiff also admitted the
fact that the suit schedule property is in the possession of the
defendants. The defendant No.2 contend that, he is putting up
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MFA No. 2761 of 2023
construction in item No.12 of the suit schedule properties to
store areca nut and other agricultural produces. Hence, the
plaintiff has not made out any prima facie case and this finding
of the Trial Court is erroneous.
4. Learned counsel for the appellant-plaintiff would
vehemently contend that, admittedly, the property belongs to
the father and the respondents-defendants are relying upon the
Will executed by the father and mother and the same is
disputed by the respondents-defendants and if the nature of
the property is changed, it will cause prejudice to the appellant
and the respondents-defendants also cannot claim any equity.
The learned counsel also, in support of his argument, produced
the photographs, wherein a to-let board is put for letting out
the premises with the mobile numbers of the respondents-
defendants and though the respondents contend that the
premises is for the purpose of agricultural produce, but making
an attempt to let out the same. Hence, it requires interference.
5. Per contra, learned counsel for the respondents-
defendants has also produced the photographs, wherein the
construction is completed. It is also the specific contention of
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MFA No. 2761 of 2023
the respondents before the Trial Court that the said
construction is made only for the purpose of storage of
agricultural produces. The counsel would further submit that a
Will is executed by the father and mother and the defendants
are in possession of the property and that they will not claim
any equity in future, if they succeed in the suit and the
respondents are not intending to let out the premises as
contended by the appellant-plaintiff. Hence, the Trial Court,
taking note of all these material on record, rightly dismissed
the application, in coming to the conclusion that there is no
prima facie case.
6. The learned counsel for the respondents also relied
upon the judgment of the Apex Court in JAMILA BEGUM
(DEAD) THROUGH LEGAL REPRESENTATIVES VS. SHAMI
MOHD. (DEAD) THROUGH LEGAL REPRESENTATIVES AND
ANOTHER reported in (2019) 2 SCC 727 with regard to the
presumption for having executed a registered Will and hence,
the appellant-plaintiff is not entitled for any relief.
7. Having heard the learned counsel for the appellant
and learned counsel for the respondents and also on perusal of
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MFA No. 2761 of 2023
the impugned order, the Trial Court has taken note of the
contention of the parties and there is no dispute with regard to
the fact that property belongs to the father and the defendants
also claim that a Will is executed which is a registered one and
the appellant-plaintiff has also filed a suit for the relief of
partition against the mother and the brother disputing the
execution of the Will and the mother is also one of the
executant of the Will and when the mother is alive, the
question of Will coming into force does not arise, even though
the father is no more. Further, the very contention of the
appellant-plaintiff is also that the respondents-defendants are
putting up construction for the purpose of selling the same and
already there is an order of injunction not to alienate the
property and now, the relief is sought for not to put up any
construction.
8. Having perused the photographs produced by the
learned counsel for the appellant and learned counsel for the
respondents, already the construction is over. When such
being the case, the Trial Court also taken note of the said fact
and the very contention of the respondent No.2-defendant No.2
is also that the premises is used for storage of agricultural
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produce since, he is also an agriculturist and having other
properties. When such observation is made by the Trial Court
that the property is not utilized for commercial purpose, the
question of letting out the premises does not arise, as
contended by the learned counsel for the appellant-plaintiff and
if the same is let out as against the contention of the
defendants-respondents, the appellant-plaintiff can seek for
appropriate relief before the appropriate Court. Having regard
to the fact that construction is completed and according to the
defendants, the same is for the purpose of storage of
agricultural produce, the same can be made use for storing
agricultural produce and not for any other purpose.
9. The counsel also would vehemently contend that
item No.12 of the property is measuring 1 acre, 10 guntas and
only portion of the property is used for construction and this
Court can direct the defendants not to put up any further
construction in the remaining area. Having taken note of the
said submission, and learned counsel for the respondents-
defendants contend that there cannot be any blanket order and
the said contention cannot be accepted since, the very relief of
temporary injunction is sought in respect of 1 acre, 10 guntas
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and not in respect of portion of the property and when the
construction was taken up, the relief is sought. When such
being the case, since already the construction is completed, the
question of restraining the respondents-defendants does not
arise. However, the respondents-defendants are directed not
to put up any further construction in the remaining area, till the
disposal of the suit and also cannot claim any equity in future,
if the appellant-plaintiff succeed in the matter.
Accordingly, the appeal is disposed of.
Sd/-
JUDGE
ST
