Karnataka High Court
Smt. Ashwathamma vs Shivanna on 2 February, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:4718
MFA No. 48 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO.48 OF 2024 (CPC)
BETWEEN:
SMT. ASHWATHAMMA
D/O LATE CHIKKARAMAIAH
AGED ABOUT 53 YEARS
R/O KAMMASANDRA VILLAGE
DASANAPURA HOBLI
BENGALURU NORTH TALUK
BENGALURU URBEN DISTRICT - 560100
...APPELLANT
(BY SRI HALLI SHANTAPPA BASAPPA, ADVOCATE)
Digitally signed AND:
by SHARANYA T
Location: HIGH
COURT OF 1. SHIVANNA
KARNATAKA S/O LATE CHIKKAMARAIAH
AGED ABOUT 65 YEARS
R/O KAMMASANDRA VILLAGE
DASANAPURA HOBLI
BENGALURU NORTH TALUK
BENGALURU URBAN DISTRICT - 60100
2. MAREGOWDA
S/O O LATE CHIKKARAMAIAH
AGED ABOUT 65 YEARS,
R/O KAMMASANDRA VILLAGE
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NC: 2024:KHC:4718
MFA No. 48 of 2024
DASANAPURA HOBLI
BENGALURU - 560100
NORTH TALUK
BENGALURU URBAN DISTRICT
3. SMT. ANANTHAMMA
W/O K L SRIPATHAIAH
AGED ABOUT 70 YEARS
R/O KAMMASANDRA VILLAGE
DASANAPURA HOBLI
BENGALURU NORTH TALUK
BENGALURU URBAN DISTRICT - 560100
4. KESHAVAMURTHY
S/O K L SRIPATHAIAH
AGED ABOUT 70 YEARS
R/O KAMMASANDRA VILLAGE
DASANAPURA HOBLI
BENGALURU NORTH TALUK
BENGALURU URBAN DISTRICT - 560100
...RESPONDENTS
(BY SRI M SHIVAPRAKASH, ADVOCATE FOR R3 & R4)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(R) OF
CPC, AGAINST THE ORDER DATED 20.12.2023 PASSED
ON I.A. NOS.1 AND 2 IN R.A.53/2023 ON THE FILE OF
THE VI ADDITIONAL DISTRICT AND SESSIONS JUDGE,
BENGALURU RURAL DISTRICT, BENGALURU AND ETC.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC:4718
MFA No. 48 of 2024
JUDGMENT
This matter is listed for orders. Heard the learned
counsel appearing for the respective parties.
2. This appeal is filed against the dismissal of the
applications filed under Order XXXIX Rule 1 and 2 of CPC.
The main contention of the counsel for the appellant that
the appellant and her mother have filed the suit in
O.S.No.446/2022 for partition and separate possession of
their 2/4th share in the suit schedule property bearing
Sy.No.43, measuring 1 acre 23 guntas situated at
Dasanapura hobli, Bengaluru North taluk. In support of
their case, they contend that the suit schedule property is
the ancestral and joint family property of the plaintiffs and
defendant Nos.1 and 2. In order to deceive the right of the
plaintiffs over the suit schedule property, defendant Nos.1
and 2 have executed the alleged General Power of
Attorney in favour of defendant No.3 who in turn sold the
property in favour of defendant No.4. Further it is contend
that the alleged sale deed is not binding on the plaintiffs'
NC: 2024:KHC:4718
share hence, they have filed an interim application seeking
the relief of temporary injunction. The said application is
resisted by the respondents contending that the plaintiffs
are not having any right in respect of the suit schedule
property. It is the exclusive property of defendant No.1
and General Power of Attorney was executed in favour of
defendant No.3 who executed the sale deed in favour of
defendant No.4.
3. It is the contention of the counsel for
respondent No.4 that after purchasing the property, the
same was converted and took up the construction and
almost three floors building is constructed. He further
contend that it is a matter of trial to consider that whether
the property is the ancestral and joint family property of
petitioner or it is exclusive property of defendant No.1.
4. The Trial Court considered the fact that alleged
sale deed is of the year 2003, General Power of Attorney
dated 27.01.1997 was executed in favour of defendant
No.3 and based on the said General Power of Attorney,
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sale deed was executed in the year 2003. It is the
contention of defendant No.4 that plaintiffs have already
executed the relinquishment deed in favour of defendant
Nos.1 and 2 and they have already received their share in
the family property by executing the said relinquishment
deed. The Trial Court taken note of the principles laid
down in the case of GOWRI SHANKAR SWAMIGALU vs
SIDDAGANGA MUTT reported in 1989 (2) KAR L J 548
and comes to the conclusion that no prima facie case is
made out by the appellant and balance of convenience lies
in favour of the respondent and if an order of injunction is
granted, it will cause irreparable loss to the respondent.
Hence, the present appeal is filed before this Court.
5. The counsel for the appellant would vehemently
contend that the suit is filed for the relief of partition and
separate possession and he would vehemently contend
that it is a matter of trial to consider that whether the suit
schedule property is an ancestral and joint family property
or self-acquired property of defendant No.1. The counsel
NC: 2024:KHC:4718
would vehemently contend that relinquishment deed is not
in respect of the suit schedule property and the same is in
respect of Sy.No.36 and 37. The suit schedule property is
granted in favour of the father of the appellant in the year
1959 under the Inams Abolition Act. If construction is
completed, it will leads to multiplicity of proceedings.
6. The counsel for the respondents would
vehemently contend that the property was purchased in
the year 2003 and the same is converted and construction
has taken up. In support of his contention, the counsel
produced the photographs along with the objections which
disclose that already three floors building has been
constructed. The counsel for the respondents also given
undertaking that they are not going to claim any equity in
future if the plaintiffs succeeds in the suit.
7. Heard the learned counsel for the respective
parties. The appellant also not disputes the fact that the
construction is going on and the photographs produced by
the respondents disclose that already three floors building
NC: 2024:KHC:4718
is constructed and it is not completed. Considered the
factual aspect of construction to the extent of almost three
floors and huge amount is also invested and the
respondents have given undertaking that they are not
going to claim any equity if the plaintiffs succeeds in the
suit. When such undertaking is given, if stay is granted, it
will cause irreparable loss and injury to the respondents
hence, the Trial Court has rightly comes to the conclusion
that the balance of convenience lies in favour of the
respondents, not in favour of the plaintiffs since almost
three floors building is constructed. The sale deed of the
year 2003 is in favour of respondent No.4 and the suit is
filed in the year 2022 and regular appeal is also pending
wherein an interim order is sought. Having considered the
reasoning given by the First Appellate Court that the prima
facie case is not made out and consequently, statement of
objections and undertaking given by the respondents
herein, the question of continuing the order of status quo
as ordered by this Court does not arise. Having perused
the material available on record it discloses that
NC: 2024:KHC:4718
construction is undertaken spending huge money and
three floor building already been constructed, at this
stage, if injunction or status quo order granted in favour of
the appellant, it will come in the way of respondents
causing irreparable loss. The specific contention of the
respondents that they are not claiming any equity if the
appellant succeeds in the suit. In view of undertaking, the
appellant shall get the share including the building if the
suit is allowed in their favour. Hence, I do not find any
merit in the appeal.
8. In view of the discussions made above, I pass
the following:
ORDER
The appeal is dismissed.
Sd/-
JUDGE
SN
