Karnataka High Court
Sanki Suvarna vs Girija Suvarna on 7 February, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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MFA No. 4540 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 4540 OF 2023 (CPC)
BETWEEN:
1. SANKI SUVARNA
D/O LATE NAGAMARAKALA
AGED ABOUT 78 YEARS
R/AT UDAYVARA VILLAGE AND POST
UDUPI TALUK AND DISTRICT - 574118
...APPELLANT
(BY SRI. PRASANNA V R.,ADVOCATE)
AND:
1. GIRIJA SUVARNA
D/O LATE KRISHNA KUNDAR,
AGED ABOUT 63 YEARS,
2. JALAJAN KUNDAR,
Digitally signed
by SHARANYA T D/O LATE KRISHNA KUNDAR,
Location: HIGH AGED ABOUT 61 YEARS,
COURT OF
KARNATAKA
3. AMITHA SUVARNA
D/O LATE KRISHNA KUNDAR,
AGED ABOUT 59 YEARS,
4. RAMESH SUVARNA
S/O LATE KRISHNA KUNDAR,
AGED ABOUT 57 YEARS,
5. SURESH SUVARNA
S/O LATE KRISHNA KUNDAR,
AGED ABOUT 55 YEARS,
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MFA No. 4540 of 2023
RESPONDENTS NO.1 TO 5 ARE
ALL R/AT KALAIBAILU, SAMPIGE NAGARA,
UDYAVARA VILLAGE KAUP TALUK,
UDUPI DISTRICT - 574118
6. K. GIRIYA KUNDAR,
S/O LATE NAGA MARAKALA,
AGED ABOUT 83 YEARS,
R/AT AJAYA KRISHNA APARTMENT,
COURT BACK ROAD,
UDUPI - 576101
7. SOMAYYA KUNDAR,
S/O LATE NAGAMARAKALA,
AGED ABOUT 76 YEARS
R/AT PUSHPA DEEPA
NEAR AYURVEDA COLLEGE,
JANATHA COLONY
KUTHUPADI POST,
UDUPI TALUK AND DISTRICT -574118.
8. KAMALA KANCHAN,
W/O LATE BOLA KUNDAR,
AGED ABOUT 91 YEARS,
9. RAGHU KANCHAN,
S/O LATE BOLA KUNDAR
AGED ABOUT 73 YEARS,
10. SUNDAR KANCHAN
S/O LATE BOLA KUNDAR
AGED ABOUT 71 YEARS,
11. SHEKAR KANCHAN
S/O LATE BOLA KUNDAR
AGED ABOUT 61 YEARS,
12. DINESH KANCHAN
S/O LATE BOLA KUNDAR
AGED ABOUT 58 YEARS,
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MFA No. 4540 of 2023
RESPONDENTS NO.8 TO 12 ARE ALL
R/AT KADE THOTA KOPPALLA,
UDYAVARA VILLAGE,
UDUPI TALUK AND DISTRICT - 574118
13. SHARADA SALIAN,
D/O LATE NAGA MARAKALA
AGED ABOUT 61 YEARS,
R/AT SRI KRISHNA NILAYA
KALAIBAILU, UDAYAVARA VILLAGE
PITHRODY POST
UDUPI TALUK AND
DISTRICT - 574118
14. ROHIDAS M SRIYAN
S/O LATE RADHU SRIYAN,
AGED ABOUT 63 YEARS,
R/AT "SALPA" 201-B WING,
ACHCHAD CROSS,
POSAR VILLAGE,
NEAR NAGA BANA
SALPASENATERI ROAD,
KATPADY UDUPI TALUK
AND DISTRICT - 574105
15. GOPAL M. SRIYAN
S/O LATE RADHU SRIYAN,
AGED ABOUT 60 YEARS
16. SANJEEVA M SRIYAN
S/O LATE RADHU SRIYAN,
AGED ABOUT 58 YEARS
17. VASANTHI M SRIYAN
D/O LATE RADHU SRIYAN,
AGED ABOUT 50 YEARS
18. DHANANJAYA M SRIYAN
S/O LATE RADHU SRIYAN,
AGED ABOUT 50 YEARS
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MFA No. 4540 of 2023
19. DHANANJAYA M SRIYAN
S/O LATE RADHU SRIYAN,
AGED ABOUT 46 YEARS
20. JAGANNATHA SRIYAN
S/O LATE RADHU SRIYAN,
AGED ABOUT 41 YEARS
RESPONDENTS 15 TO 20 ARE ALL
R/AT POORNIMA NIVAS,
KODI KANYAANA,
NEAR MAHISHAMARDHINI TEMPLE,
BUS STOP, SALIGRAMA,
BRAHMAVARA TALUK
UDUPI DISTRICT - 571604
21. JAYANTHI SUVARNA
D/O LATE GIRIYA SUVARNA
AGED ABOUT 54 YEARS
22. DEVARAJ SUVARNA
S/O LATE GIRIYA SUVARNA
AGED ABOUT 50 YEARS
RESPONDENTS NO.22 AND 23 ARE
R/AT H-2 "GOKUL RESIDENCY"
TAKUR VILLAGE, KANDIVILLI (EAST)
MUMBAI-400101
MAHARASHTRA STATE.
...RESPONDENTS
(BY SRI. CHANDRANATH ARIGA K., ADVOCATE FOR R1 TO R12,
NOTICE TO R13 TO 22 DISPENSED WITH
VIDE ORDER DATED 18.11.2023)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 15.04.2023 PASSED ON I.A.
NO.II IN R.A.NO.36/2022 ON THE FILE OF THE PRINCIPAL
DISTRICT JUDGE/COMMERCIAL COURT, UDUPI DISTRICT,
UDUPI, REJECTING I.A. NO.II FILED UNDER ORDER XXXIX
RULE 1 AND 2 OF CPC.
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MFA No. 4540 of 2023
THIS APPEAL, COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel appearing for the
appellant and the learned counsel appearing for the
respondents.
2. This Miscellaneous First Appeal is filed
challenging the order of rejection of application I.A.No.2
filed under Order 39 Rule 2 of Code of Civil Procedure,
1908, wherein the appellant has sought for the relief of
temporary injunction restraining the respondents from
interfering with further construction of her residential
house in the property shown in the schedule to I.A.No.2.
2. The main contention of the appellant in the said
application is that her brothers had filed partition suit
against herself and her sisters in respect of Sy.No.171/8
measuring 43 cents and also other survey numbers and
the said suit came to be decreed. The appellant and her
sisters have filed this appeal challenging the same. Now
the appellant is residing with her son in a rented house. In
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order to construct a residential house, she had executed a
registered settlement deed in favour of her son Bhaskar G
Kund. By such registered settlement deed, she had
transferred her right over the immovable property and
now in order to reside in the house, it is necessary to put
up construction and respondents are interfering with the
possession of the property and construction of the house
and hence, they may be restrained from interfering with
the possession of the schedule property shown in the
schedule to I.A.No.2 as well as restraining them from
obstructing further construction of the same.
3. The respondents have filed objection statement
contending that the very I.A. is not maintainable as there
is a decree in O.S.No.100/2017. It was also contended
that when the suit was already pending, suppressing the
same, a separate O.S.No.823/2017 is filed and it was
compromised and has also been challenged and already
the judgment and decree is passed in O.S.No.823/2017
has been set aside. Now they cannot put up any
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construction or make an attempt to construct the building
in the portion of the A schedule property when there is
already a decree in O.S.No.100/2017 and prayed the court
to reject the same.
4. The trial court having considered the sworn
affidavit of the appellant and also the objection statement
of the respondents and also taking note of the fact that
already there was a decree and the same is challenged in
R.A.No.36/2022, wherein a prayer is made seeking
permission to continue the further construction. The
appellate court has also taken note of the conduct of the
appellant and in para 18 discussed with regard to the
earlier suit and in para 19 discussed about not allocating
the I.A. schedule property to her by the court. The
appellant cannot contend that she has a right over the
same to construct the residential house and when the
appeal is pending, the question of permitting the appellant
who has suffered the decree cannot be continued to put up
the construction and the relief sought in the application
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cannot be granted. Being aggrieved by the said order, the
present appeal is filed.
5. Learned counsel for the appellant submits that
the appellant is not having any house and is living in a
rented house and even if the construction is made, the
respondents will get the benefit in case, if they succeed in
the appeal and also the appellant will not claim any equity
in case, if the respondents are successful in the appeal
also. The counsel in support of his arguments relied upon
a decision in 'P.K.RAMACHANDRAPPA ALIAS
P.D.RAMACHANDRAPPA VS. PRATHIMA K', AIR
ONLINE 2018 KAR 948, wherein liberty is granted to the
defendant to put up the construction in the suit schedule
property and if plaintiff succeeds in the partition suit, then
defendant would not claim any equity with regard to
construction made by him.
6. Per contra learned counsel appearing for the
respondent submits that question of not claiming any
equity also does not arise and already the court granted
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the decree in O.S.No.100/ 2017. The learned counsel also
brought to the notice of this court that when the suit is
pending, the other suit is filed and a decree is obtained
and decree is also set aside.
7. It is important to note that the suit is filed for
the relief of partition and separate possession, and the
trial court in O.S.No.100/2017 granted the relief in the
said suit and admittedly, an appeal is also pending before
the court in that appeal only, an application is filed. The
appellant court having considered the material on record
and also taking into account the conduct of the parties
comes to the conclusion that when there was already a
decree and the property has not been allocated to the
appellant, comes to the conclusion that when the property
is not allocated to the appellant as mentioned in schedule
of I.A.2, question of permitting and granting the relief
does not arise.
8. No doubt, this court granted the relief not to
claim any equity with liberty in the judgment referred
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supra and the same is in respect of the suit, which has
not been decided and the suit is pending. Insofar as the
relief sought restraining defendant from putting up any
illegal construction in the suit schedule property till the
disposal of the partition suit. In the case on hand, already
suit has been decreed and share has been allotted in
favour of the respondents. When such being the case,
during the pendency of the appeal, the appellant cannot
seek for the discretionary relief and also court has to take
note of the conduct of the appellant that when the suit
was pending in O.S.No.100/2017, another suit was filed
for the relief of partition amongst the sisters on the
strength of alleged Will executed in favour of the
daughters and the same is compromised and in the said
suit the respondents are not parties and in the suit in
O.S.No.100/2017, the appellants are also parties and
when such being the case and having taken note of the
conduct of non arraying them as well as when there is
already a decree in favour of the respondents, question of
permitting or granting any relief of temporary injunction
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restraining the respondents from interfering with the
possession does not arise.
9. The court while granting the relief of temporary
injunction exercised the discretion having taken note of
the prima facie case and in this case, prima facie already
there is a decree in favour of the respondents. When such
being the case, the question of granting any interim order
as sought by the appellant does not arise and the trial
court has also not committed any error and the trial court
having considered the factual aspects of the case and also
the right already been recognized in the original suit viz.,
O.S.No.100/2017 in favour of the respondents and has not
exercised its discretion since, no prima facie case is made
out and balance of convenience in favour of the appellants
and hence, I do not find any merit in the appeal to reverse
the finding of the trial court. However at this juncture, the
learned counsel appearing for the appellant would submit
that a direction may be given to the appellate court to
dispose of the appeal for a time bound period. The said
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submission can be considered having regard to the fact
that the suit is of the year 2017 and already six years
have been elapsed and the appeal is filed in 2022. The
appellate court is directed to dispose of the appeal not
later than six months from today.
With this observation, appeal is disposed of.
Sd/-
JUDGE
SS
