Karnataka High Court
Sri. Ganesh vs Smt. Gowramma on 1 February, 2024
-1-
NC: 2024:KHC:4499
WP No. 21363 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
WRIT PETITION NO. 21363 OF 2022 (GM-CPC)
BETWEEN:
1. SRI. GANESH
S/O. LATE RAMAIAH,
AGED ABOUT 51 YEARS,
RESIDING AT MADAVARA VILLAGE,
DASANAPURA HOBLI,
BENGALURU NORTH TALUK,
PIN - 562 123.
2. SMT. GANGAMMA
W/O. GANESH,
AGED ABOUT 51 YEARS,
RESIDING AT MADAVARA VILLAGE,
MADAVARA POST
DASANAPURA HOBLI,
BENGALURU NORTH TALUK,
PIN - 562 123.
Digitally signed ...PETITIONERS
by PAVITHRA N (BY SRI: MANJUNATH K.V., ADVOCATE)
Location: high
court of
karnataka AND:
1. SMT. GOWRAMMA
W/O. KALEGOWDA,
AGED ABOUT 50 YEARS,
RESIDING AT MADAVARA VILLAGE,
MADAVARA POST
DASANAPURA HOBLI,
BENGALURU NORTH TALUK,
PIN - 562 123.
2. SRI. K.R. SHANKAR
S/O. MUDLAGOWDA,
AGED ABOUT 48 YEARS,
-2-
NC: 2024:KHC:4499
WP No. 21363 of 2022
RESIDING AT C.
KODIGEHALLI VILLAGE,
C.S. PURA HOBLI, GUBBI TALUK,
TUMKUR DISTRICT - 572 213.
...RESPONDENTS
(BY SRI: RAMESH .K., ADVOCATE FOR R1
R2 - D/W, V/O DT.27/7/23)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER
DATED 22.04.2022 PASSED BY THE II ADDITIONAL SENIOR CIVIL
JUDGE AT NELAMANGALA IN MA NO.05/2022 IS PRODUCED AS
ANNEXURE-Q TO THE WRIT PETITION. CONFIRM THE ORDER ON IA
NO.4 UNDER ORDER XXXIX RULE 1 AND 2 DATED 11.02.2022
PASSED BY THE PRINCIPAL CIVIL JUDGE AND JMFC AT
NELAMANGALA IN OS.NO.418/2021 AND ETC.,
THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING - B GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioners are impugning the judgment dated
22.04.2022 passed in MA No.5/2022 by the learned II
Additional Senior Civil Judge at Nelamangala allowing the
appeal and confirming the order on IA No.4 filed under Order
XXXIX Rules 1 and 2 dated 11.02.2022 passed in
OS.No.418/2021 by the learned Prl.Civil Judge and JMFC at
Nelamangala.
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2. Heard Sri. Manjunath K.V., learned counsel for the
petitioners and Sri. Ramesh K, learned counsel for the
respondents. Perused the materials on record.
3. It is the specific contention of the petitioners that
mother of petitioner No.1/defendant No.1 Kempamma was
allotted with an Ashraya site during 1972 measuring 40x30
feet. Kempamma was having a daughter by name Gowramma
i.e., defendant No.2. Learned counsel submitted that the
plaintiff claims to be the son of Kempamma and filed the suit
for partition and separate possession. But his relationship with
Kempamma is not admitted by the petitioners. Even though he
has filed an application seeking temporary injunction against
these petitioners, the same was rejected by the trial Court.
Later defendant No.2 filed IA No.4 under Section 39 Rules 1
and 2 of CPC seeking grant of temporary injunction, same was
dismissed by the trial Court. She has preferred MA No.5/2022
and the First Appellate Court allowed the appeal, so also
allowed IA No.4 and granted temporary injunction restraining
defendant No.1 and 3 from proceeding with construction over
the property.
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4. Even according to defendant No.2, there was a gift
deed in her favour and she in possession of half portion of the
property measuring 20x30 feet (600 Sq.feet). It is the
contention of defendant No.2 that she has constructed the
house and residing there. Learned counsel for respondent No.2
contended that the gift deed in her favour is admitted by the
petitioners. I have perused the written statement, wherein,
defendant No.1 and 3 who are the petitioner Nos.1 and 3
herein have taken a specific stand that under the gift deed
defendant No.2 got her half share in the schedule property.
Under such circumstances, it cannot be construed that
defendant No.1 had admitted the gift deed in favour defendant
No.2 and that she is again entitled for ½ share in the remaining
600Sq.feet of property. Whether the contention of defendant
No.1 and 3 is to be accepted or the contention taken by
defendant No.2 is to be accepted or whether the contention
taken by the plaintiff is to be accepted is to be decided by the
trial Court after full-fledged trial.
5. Now it is stated that Kempamma was residing in
remaining half share of the property by constructing a small
house. She died on 06.02.2015. It is the contention of
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defendant Nos.1 and 3 that after the death of Kempamma,
they demolished the old house and started constructing the
house by obtaining loan. It is also their contention that the
construction has already halfway through. If at this stage, same
is ordered to be stopped, they will suffer great loss and
hardship.
6. Learned counsel for the petitioners submits that
they undertake to construct the building at their risk which
could be subject to the result of the suit before the trial Court.
When such an undertaking is given by the learned counsel for
the petitioners on behalf of the petitioners, I do not find any
reason to confirm the impugned order passed by the First
Appellate Court, as otherwise, defendant No.1 and 3 who have
already started constructing the building, when defendant No.2
is already in possession of the remaining half portion of the
property, will suffer great loss and hardship. Therefore, I am of
the opinion that there are no reasons to restrain defendant
Nos.1 and 3 from proceeding with the construction of the
property as the same is being done at their own risk, subject to
the result of the suit OS.No.418/2021 pending before the trial
Court.
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In view of the above, I proceed to pass the following;
ORDER
i. Writ petition is allowed.
ii. The judgment dated 22.04.2022 passed in MA
No.5/2022 by the learned II Additional Senior Civil
Judge at Nelamangala, is set aside.
iii. It is made clear that construction of the building
over the schedule property by defendant No.1 and
defendant No.3 will be at their own risk and it
would be subject to the result of the suit pending
before the trial Court.
Sd/-
JUDGE
BH
