Smt. Rekha vs Smt. Rathnamma
2023 Latest Caselaw 3639 Kant

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                                                     NC: 2023:KHC:21800
                                                       MFA No. 3798 of 2023




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 23RD DAY OF JUNE, 2023

                                           BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                    MISCELLANEOUS FIRST APPEAL NO.3798 OF 2023 (CPC)



                   BETWEEN:

                   1.    SMT. REKHA
                         W/O MANJAPPA
                         AGED ABOUT 43 YEARS
                         OCC.HOMEMAKER
                         R/O SHIRANGANAHALLI VILLAGE
                         DAVANAGERE TALUK

                   2.    SMT. ROOPA
                         W/O VIRUPAKSHAPPA
Digitally signed
                         AGED ABOUT 37 YEARS
by SHARANYA T            OCC.HOMEMAKER
Location: HIGH           R/O SASALU VILLAGE
COURT OF
KARNATAKA                HOLALKERE TALUK

                   3.    SMT. MANJULA
                         W/O LAVAKUMAR
                         AGED ABOUT 33 YEARS
                         OCC.HOMEMAKER
                         R/O SASALU VILLAGE
                         HOLALKERE TALUK

                   4.    SMT. ASHA
                         W/O RANGASWAMY
                         AGED ABOUT 31 YEARS
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                               NC: 2023:KHC:21800
                                 MFA No. 3798 of 2023




     OCC.HOMEMAKER
     R/O TANIGERE VILLAGE
     CHANNAGIRI TALUK
                                       ...APPELLANTS

(BY SRI. PATIL JAGADEESH GOUD, ADVOCATE)



AND:

1.   SMT. RATHNAMMA
     W/O LATE HANUMANTHAPPA
     AGED ABOUT 64 YEARS

2.   SMT. SHOBHA
     W/O LATE HANUMANTHAPPA
     AGED ABOUT 56 YEARS

3.   S SIDDAPPA
     S/O LATE MAHESHWARAPPA
     AGED ABOUT 56 YEARS
     OCC: AGRICULTURIST

4.   S M NAGARAJA
     S/O LATE MAHESHWARAPPA
     AGED ABOUT 53 YEARS
     OCC: AGRICULTURIST
     R 1 TO 4 ARE THE R/O
     SHAMANURU VILLAGE
     DAVANGERE TALUK-577004.


                                     ...RESPONDENTS

     THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF
CPC, AGAINST THE ORDER DATED 30.03.2023 PASSED
ON I.A. NO.1 IN O.S.NO.239/2022 ON THE FILE OF THE
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                                     NC: 2023:KHC:21800
                                       MFA No. 3798 of 2023




II ADDITIONAL SENIOR         CIVIL    JUDGE     AND   JMFC,
DAVANAGERE AND ETC.

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


                    JUDGMENT

This appeal is filed challenging the order dated

30.03.2023 passed on I.A.No.1 in O.S.No.239/2022 on the

file of the II Additional Senior Civil Judge and JMFC,

Davanagere.

2. This appeal is listed for admission. Heard the

learned counsel appearing for the appellants.

3. The case of the plaintiffs before the Trial Court

that they have filed the suit for the relief of 1/6th share

each in the suit schedule property. It is contended that

Kunduwada Danappa married one Muddamma and in the

said wedlock, they had three sons namely Kallappa,

Rudrappa and Hanumanthappa and two daughters namely

Annapurnamma and Adivemma. The said Danappa had

some ancestral properties. After the death of said

NC: 2023:KHC:21800 MFA No. 3798 of 2023

Danappa, his children got divided the properties and in the

partition, Hanumanthappa i.e., third son of Danappa had

been derived with a title over the land measuring 1 acre

15 guntas in Sy.No.45/2Cp, situated at Kunduwada

village, Davanagere. The said land is now given with new

number as Sy.No.45/9. The said Hanumanthappa married

two wives namely Rathnamma and Shobha i.e., defendant

Nos.1 and 2 and plaintiff Nos. 1 to 4 are the daughters of

said Hanumanthappa and his wives. It is contended that

the father of the plaintiffs was not so worldly-wise and he

was addicted to bad vices as a result, he was suffering

from ill-health. Consequently, in the year 2018, said

Hanumantappa died intestate leaving behind his two wives

and the plaintiffs as his Class-I legal heirs. The plaintiffs

submitted that after they got married, they could not

concentrate on the suit schedule property and about 3 to 4

months ago, they came to know that defendant Nos.3 and

4 have got mutated the katha in respect of suit schedule

property in their names by concocting the documents and

they are making hectic efforts to get the suit schedule

NC: 2023:KHC:21800 MFA No. 3798 of 2023

property alienated and to change its nature in order to

defeat the right of the plaintiffs. Hence, they filed the suit.

4. In pursuance to the suit summons, defendant

No.3 appeared and filed the written statement and

defendant No.4 adopted the said written statement

wherein it is contended that the suit schedule property

was purchased in the year 1998 and got the khatha of the

property mutated in their names as per M.R.No.123/1998-

99 and they are in exclusive possession of the property. It

is also contended that the plaintiffs have come before this

Court after the lapse of 24 years of sale and also

contended that the suit schedule property is converted and

formed the layout and defendant Nos.1 and 2 who are the

co-executant of the registered sale deed are also aware of

the sale and now they cannot contended that recently they

came to know about the same and also contended that

they got converted the property vide order dated

03.09.2018 passed by the Deputy Commissioner,

Davanagere.

NC: 2023:KHC:21800 MFA No. 3798 of 2023

5. The Trial Court having considered the pleadings

of the parties, discussed that the property was already

sold in the year 1998 itself and the revenue records are

also changed in the name of the purchasers and

subsequently the property also converted by obtaining the

order of Deputy Commissioner hence, comes to the

conclusion that the plaintiffs have not made out any

grounds to grant an order of temporary injunction

restraining defendant Nos.3 and 4 from alienating the suit

schedule property.

6. The learned counsel appearing for the

appellants would vehemently contends that when the sale

was made in the year 1998, they are minors hence, the

same is not within the knowledge of the appellants and

they are having right in the suit schedule property and the

father was not having any exclusive right to sell the

property thus the defendant Nos.3 and 4 may be

restrained from alienating the suit schedule property

NC: 2023:KHC:21800 MFA No. 3798 of 2023

otherwise the same would cause multiplicity of

proceedings.

7. Having heard the learned counsel for the

appellants and also on perusal of the reason assigned by

the Trial Court wherein the Trial Court taken note that the

sale was made in the year 1998 itself and the plaintiffs

have filed the suit after the lapse of 24 years, defendant

Nos.1 and 2 who are the mothers of the plaintiffs are the

co-executant of the sale deed hence, the plaintiffs have

the knowledge of the said sale deed and the document

also reveals that subsequent to the sale, the revenue

records also changed and formed the layout. Having

considering all these materials, the Trial Court rightly

rejected the application filed by the plaintiffs under Order

XXXIX Rule 1 and 2 of CPC in coming to the conclusion

that there is no prima facie case made out by the

plaintiffs. Hence, I do not find any error committed by the

Trial Court in rejecting the application.

NC: 2023:KHC:21800 MFA No. 3798 of 2023

8. In view of the above discussions, I pass the

following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE

SN