Karnataka High Court
Basavaraj S/O Ningappa Holeyachi vs Mrs. Kamlavva W/O Channagouda ... on 20 June, 2023
Bench: M.G.Umaj
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MFA No. 101019 of 2021
C/W MFA No. 101020 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 20TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MRS. JUSTICE M.G.UMA
MISCELLANEOUS FIRST APPEAL NO.101019/2021 (CPC)
C/W MISCELLANEOUS FIRST APPEAL NO.101020/2021
IN M.F.A.NO.101019/2021:
BETWEEN:
BASAVARAJ S/O. NINGAPPA HOLEYACHI,
AGE: ABOUT 62 YEARS, OCC: AGRICULTURE,
R/O: AKKATANGERHAL, TAL: GOKAK,
DIST: BELAGAVI-591 101.
...APPELLANT
(BY SRI VITTHAL S. TELI, ADVOCATE)
AND:
1. MRS. KAMLAVVA W/O. CHANNAGOUDA
GOUDAR ALIAS GADENNAVAR, AGE: 37 YEARS,
OCC: AGRICULTURE AND HOUSEHOLD,
R/O: MALLAPUR K. N., TAL: BAILHONGAL,
DIST: BELAGAVI - 591102.
Digitally
signed by 2. MRS. SAVITA W/O. CHANNAPPA UJJANAKOPPA,
ROHAN
HADIMANI AGE: 29 YEARS,
T OCC: AGRICULTURE AND HOUSEHOLD,
R/O: SHILTIBHAVI, TAL: GOKAK,
DIST: BELAGAVI 591 334.
3. SMT. SATTEVVA W/O. BASAVANTAPPA MALLAPUR,
AGE ABOUT 65 YEARS,
OCC: AGRICULTURE AND HOUSEHOLD,
R/O: IRANATTI, TAL: GOKAK,
DIST: BELAGAVI - 591 307.
4. SHRI. RUDRAPPA S/O. NAGAPPA MALLAPUR,
AGE: 60 YEARS, OCC: AGRICULTURE
R/O: IRANATTI, TAL: GOKAK,
DIST: BELAGAVI - 591 307.
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MFA No. 101019 of 2021
C/W MFA No. 101020 of 2021
5. SMT. KAMALAVVA W/O. RUDRAPPA MALLAPUR,
AGE: 55 YEARS, OCC: HOUSEHOLD,
R/O: IRANATTI, TAL: GOKAK,
DIST: BELAGAVI - 591307.
6. SMT. SHIVAGANGAVVA
W/O. NINGAPPA WADARATTI,
AGE: 57 YEARS, OCC: HOUSEHOLD,
R/O: MIDAKNATTI, TAL: GOKAK,
DIST: BELAGAVI - 591307.
7. SMT. NINGAVVA D/O. NAGAPPA MALLAPUR,
AGE: 54 YEARS, OCC: HOUSEHOLD,
R/O: MIDKANATTI, TAL: GOKAK,
DIST: BELAGAVI - 591307.
8. SMT. BALAVVA W/O. SHIVANAGOUDA PATIL,
AGE ABOUT 52 YEARS, OCC: HOUSEHOLD,
R/O: M. MALLAPUR, TAL: GOKAK,
DIST: BELAGAVI - 591 101.
9. SHRI. SIDDAPPA S/O. RUDRAPPA MALLAPUR,
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O: IRANATTI, TAL: GOKAK,
DIST: BELAGAVI - 591 307.
10. SHRI. BALAPPA S/O. RUDRAPPA MALLAPUR,
AGE: 47 YEARS, OCC: AGRICULTURE,
R/O: IRANATTI, TAL: GOKAK,
DIST: BELAGAVI - 591 307.
11. SHRI. RAVI S/O. RUDRAPPA MALLAPUR,
AGE: 44 YEARS, OCC: AGRICULTURE,
R/O: IRANATTI, TAL: GOKAK,
DIST: BELAGAVI - 591 307.
...RESPONDENTS
(BY SRI O.B. JOSHI, ADVOCATE FOR R1 TO R3;
NOTICE TO R4 TO R11 ARE DISPENSED WITH)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF THE CODE
OF CIVIL PROCEDURE, 1908, AGAINST THE ORDER DATED
13.08.2021, PASSED IN O.S.NO.348/2019 ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE, GOKAK AND ETC.
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MFA No. 101019 of 2021
C/W MFA No. 101020 of 2021
IN M.F.A.NO.101020/2021:
BETWEEN:
BASAVARAJ S/O. NINGAPPA HOLEYACHI,
AGE: ABOUT 62 YEARS, OCC: AGRICULTURE,
R/O: AKKATANGERHAL, TAL: GOKAK,
DIST: BELAGAVI-591 101.
...APPELLANT
(BY SRI VITTHAL S. TELI, ADVOCATE)
AND:
1. MRS. KAMLAVVA W/O. CHANNAGOUDA
GOUDAR ALIAS GADENNAVAR,
AGE: 37 YEARS,
OCC: AGRICULTURE AND HOUSEHOLD,
R/O: MALLAPUR K. N., TAL: BAILHONGAL,
DIST: BELAGAVI - 591102.
2. MRS. SAVITA,
W/O. CHANNAPPA UJJANAKOPPA,
AGE: 29 YEARS,
OCC: AGRICULTURE AND HOUSEHOLD,
R/O: SHILTIBHAVI, TAL: GOKAK,
DIST: BELAGAVI 591 344.
3. SMT. SATTEVVA,
W/O. BASAVANTAPPA MALLAPUR,
AGE ABOUT 65 YEARS,
OCC: AGRICULTURE AND HOUSEHOLD,
R/O: IRANATTI, TAL: GOKAK,
DIST: BELAGAVI - 591 307.
4. SHRI. RUDRAPPA,
S/O. NAGAPPA MALLAPUR,
AGE: 60 YEARS, OCC: AGRICULTURE
R/O: IRANATTI, TAL: GOKAK,
DIST: BELAGAVI - 591 307.
5. SMT. KAMALAVVA,
W/O. RUDRAPPA MALLAPUR,
AGE: 55 YEARS, OCC: HOUSEHOLD,
R/O: IRANATTI, TAL: GOKAK,
DIST: BELAGAVI - 591307.
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MFA No. 101019 of 2021
C/W MFA No. 101020 of 2021
6. SMT. SHIVAGANGAVVA,
W/O. NINGAPPA WADARATTI,
AGE: 57 YEARS, OCC: HOUSEHOLD,
R/O: MIDAKNATTI, TAL: GOKAK,
DIST: BELAGAVI - 591307.
7. SMT. NINGAVVA D/O. NAGAPPA MALLAPUR,
AGE: 54 YEARS, OCC: HOUSEHOLD,
R/O: MIDKANATTI, TAL: GOKAK,
DIST: BELAGAVI - 591307.
8. SMT. BALAVVA W/O. SHIVANAGOUDA PATIL,
AGE ABOUT 52 YEARS, OCC: HOUSEHOLD,
R/O: M. MALLAPUR, TAL: GOKAK,
DIST: BELAGAVI - 591 101.
9. SHRI. SIDDAPPA S/O. RUDRAPPA MALLAPUR,
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O: IRANATTI, TAL: GOKAK,
DIST: BELAGAVI - 591 307.
10. SHRI. BALAPPA S/O. RUDRAPPA MALLAPUR,
AGE: 47 YEARS, OCC: AGRICULTURE,
R/O: IRANATTI, TAL: GOKAK,
DIST: BELAGAVI - 591 307.
11. SHRI. RAVI S/O. RUDRAPPA MALLAPUR,
AGE: 44 YEARS, OCC: AGRICULTURE,
R/O: IRANATTI, TAL: GOKAK,
DIST: BELAGAVI - 591 307.
...RESPONDENTS
(BY SRI SANGRAM S. KULKARNI, ADVOCATE FOR R1 TO R3;
NOTICE TO R4 TO R11 ARE DISPENSED WITH)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF THE CODE
OF CIVIL PROCEDURE, 1908, AGAINST THE ORDER DATED
13.08.2021, PASSED IN O.S.NO.348/2019 ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE, GOKAK AND ETC.
THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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MFA No. 101019 of 2021
C/W MFA No. 101020 of 2021
JUDGMENT
Defendant No. 9 filed M.F.A. No. 101019/2021 calling in
question the common order dated 13.08.2021 passed in O.S.
No. 348/2019 allowing I.A. No. 1 filed under Order 39 Rule 1
and 2 of CPC. M.F.A. No. 101020/2021 is filed challenging the
order dismissing his application I.A. No. 10 filed for vacating
the temporary injunction granted against him.
Brief facts of the case are as under:
2. Plaintiffs have filed the suit O.S. No. 348/2019 against
defendant Nos. 1 to 9 seeking declaration that the sale deeds
dated 22.04.2003 and 02.02.2019 in respect of suit properties
bearing R.S. No. 128/1A and 128/8 executed in favour of
defendant Nos. 6 to 8 and 9 respectively are null and void and
not binding on the plaintiffs and to declare that the plaintiffs
are the absolute owners in actual possession of the suit
properties. They had also claimed relief of permanent
injunction against the defendants restraining them from
disturbing or interfering with the peaceful possession and
enjoyment of the same.
MFA No. 101019 of 2021
C/W MFA No. 101020 of 2021
3. During the pendency of the suit, plaintiffs filed I.A. No. 1
under Order 39 Rule 1 and 2 of CPC seeking temporary
injunction against the defendants in respect of R.S. No. 128/1A
and 128/8 from alienating, transferring or creating any third
party interest on it during the pendncy of the suit.
4. Initially the trial Court granted temporary injunction in
favour of the plaintiffs. Defendant No. 9 filed an application
I.A. No. 10 under Order 39 Rule 4 r/w Sec. 151 of CPC to
vacate the interim order of temporary injunction. The trial
Court considered both these applications together and a
common order was passed on 13.08.2021, allowing the
application filed by the plaintiffs seeking temporary injunction
and rejecting I.A. No. 10 filed by the defendant No.9.
5. Being aggrieved by the same, the defendant No. 9 is
before this Court.
6. Heard Sri Vithal S. Teli, learned counsel for appellant in
both the appeals and Sri Sangram S.Kulkarni, learned counsel
for respondent Nos.1 to 3 in M.F.A. No. 101020/2021.
MFA No. 101019 of 2021
C/W MFA No. 101020 of 2021
7. Learned counsel for the appellant contends that
paragraph no.5 of the plaint makes it clear that the plaintiffs
have taken a specific stand that there was a partition in the
family and Sy. No. 128/1A and 178/3 were allotted to the share
of Appanna and while Sy. No. 128/8 and 178/1 were allotted to
the share of his brother Nagappa. When the plaintiffs
categorically state that Sy. No. 128/8 was allotted to the share
of Nagappa, the trial Court committed an error in granting
temporary injunction in respect of the said property which was
in fact sold by Rudrappa, the defendant No.1, who is the son of
Nagappa. Once there is partition and the property in question
was allotted to the share of Nagappa, it devolved on defendant
No.1 and he sold it in favour of defendant No.9. Therefore, the
impugned order is liable to be set aside. Accordingly, he prays
for allowing both the appeals.
8. Per contra, learned counsel for respondent Nos.1 to 3
opposing the appeals submitted that even though plaintiffs
have stated regarding the partition between two brothers-
Appanna and Nagappa and allotting R.S. No. 128/8 in favour of
Nagappa, there was subsequent amendment to the plaint and
several issues were framed by the trial Court. Since the suit is
MFA No. 101019 of 2021
C/W MFA No. 101020 of 2021
pending before the trial Court, defendant No. 9 is not a
bonafide purchaser and hence the trial Court rightly granted
temporary injunction and there are no reasons to interfere with
the same. Hence, he prays for dismissal of both the appeals.
9. Perused the materials on record.
10. The point that arises for consideration in these appeals
is:
Whether the impugned order in respect of R.S. No.
128/8 of Madwal village calls for interference by
this Court?
11. My answer to the above point is in the affirmative for the
following:
REASONS
12. The plaintiffs filed the suit for declaration and for
permanent injunction. As stated above, it is the specific
contention of the plaintiffs in paragraph no. 5 of the plaint that
there was a partition amongst Appanna and Nagappa who are
the sons of Basanatappa Mallapur. In the said partition R.S.
No. 128/1A and 178/3 were allotted to the share of Appanna
and R.S. No. 128/8 and 178/1 were allotted to the share of
Nagappa. Admittedly, the plaintiffs are the descendents of
MFA No. 101019 of 2021
C/W MFA No. 101020 of 2021
Appanna while the defendants are the descendents of Nagappa.
When such a specific stand is taken, it is not made clear as to
how the plaintiffs could seek declaration and permanent
injunction in respect of R.S. No. 128/8. Amendment of plaint
subsequent to admission in paragraph No.5 will not enure to
the benefit of the plaintiffs. Under such circumstances, the trial
Court committed an error in granting temporary injunction in
respect of R.S. No. 128/8. Therefore, I am of the opinion that
the impugned order in respect of the said survey number is
liable to be set aside. Accordingly, I answer the point for
consideration in the 'affirmative' and proceed to pass the
following order.
ORDER
Appeals are allowed with costs.
The impugned order of temporary injunction granted by
allowing I.A. No. 1 vide order dated 13.08.2021 in respect of
R.S. No. 128/8 of Madwal village, Gokak Taluk, measuring 1
acre 18 guntas, is set aside.
SD/-
JUDGE
BVV
