Karnataka High Court
Sri. Ajith Kumar Jain vs Smt. Prema on 8 February, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:5491
MFA No. 3394 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO.3394 OF 2023 (CPC)
BETWEEN:
SRI. AJITH KUMAR JAIN
AGED ABOUT 71 YEARS
S/O LATE LINGAPPAMURAYA,
PUCHCHABETTU HOUSE,
NALLUR VILLAGE-574 122,
KARKALA TALUK,
UDUPI DISTRICT.
...APPELLANT
(BY SRI CHANDRANATH ARIGA K, ADVOCATE)
AND:
Digitally signed 1. SMT. PREMA
by SHARANYA T AGED ABOUT 66 YEARS,
Location: HIGH D/O LATE LINGAPA MURAYA,
COURT OF
KARNATAKA GANDHIJI ROAD, MARY HILL,
S.D.M. LANE, MANGALORE TALUK
D.K.-575001
2. SMT. NIRMALA
AGED ABOUT 62 YEARS,
D/O LATE LINGAPPA MURAYA,
W/O JINENDRA
PLOTHATTOM HOUSE, GANDHIJI ROAD,
MANGALORE TALUK, D.K-575001
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NC: 2024:KHC:5491
MFA No. 3394 of 2023
PERMANENT RESIDENT
PUCHCHABETTU HOUSE
NALLUR VILLAGE, KARKALLA TALUK
UDUPI DISTRICT - 574 122
...RESPONDENTS
(BY SRI JAYAKAR SHETTY, ADVOCATE)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(R) OF
CPC, AGAINST THE ORDER DATED 19.04.2023 PASSED
ON I.A. NO. II IN O.S.NO.19/2023 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND ACJM, KARKALA AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed challenging the order dated
19.04.2023 passed on I.A.No.II in O.S.No.19/2023 on the
file of the Senior Civil Judge and ACJM, Karkala.
2. Heard the learned counsel appearing for the
respective parties.
3. The learned counsel appearing for the appellant
would vehemently contend that the very impugned order
passed by the Trial Court is erroneous. The counsel would
contend that the lower Court ought to have held that the
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suit itself is not maintainable in view of the preliminary
decree passed for partition and separate possession in
respect of the suit schedule property in O.S.No.285/1968
dated 09.10.1969 in which final decree is not yet passed.
The lower Court ought to have held that the suit as well as
the I.A.No.II are not maintainable in view of the dismissal
of O.S.No.53/2008 on 15.11.2021 for not taking steps to
include all the properties and to implead all the sharers
mentioned in the order. The counsel would submit that the
lower Court ought to have held that all the aliyasanthana
family members have right in the subject matter of the
suit and are in joint possession of the suit property and it
is liable to be divided by metes and bounds as per the
preliminary decree. The counsel also would vehemently
contend that the respondents are claiming their right only
based on the Will executed by the father late
Lingappamuraya and the said Lingappamuraya was not
competent to execute the Will in respect of the joint family
property but he could have executed the Will only in
respect of his undivided share allotted to him. The counsel
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would vehemently contend that the Trial Court committed
an error in passing such an order and based on the said
order, the appellant herein is prevented from using the
usufructuary over the property when the plaintiff is not in
possession of the suit schedule property as admitted in her
cross-examination in the previous suit. The counsel in his
arguments would vehemently contend that when the suit
was filed earlier and the same was challenged in the
appeal, the First Appellate Court was remanded the matter
to the Trial Court and the Trial Court dismissed the suit for
not taking any steps as directed by the First Appellate
Court, now the respondents cannot contend that they are
in possession of the property. Hence, it requires
interference.
4. Per contra, the learned counsel appearing for
the respondents would vehemently contend that the Trial
Court taken note of the contentions of the respective
parties and also considered the fact of provision made by
the father in the year 1993 itself executing the Will and he
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passed away in the year 1999 and also considered that
now, the appellant is enjoying the property in view of the
demarcation of the properties in terms of the Will, thus,
now, the appellant cannot prevent the respondents in
using the usufructuary over the property which was
allotted in favour of the respondents and the same is also
taken note by the Trial Court while allowing the application
in part excluding those property since the Trial Court
comes to the conclusion that the appellant is in possession
of the house and granted the relief by passing the
reasoned order.
5. The counsel also would vehemently contend
that the First Appellate Court in earlier R.A.No.6/2014
discussed in detail with regard to the possessory right and
specific pleading is also made in the plaint that the plaintiff
is claiming possessory right and the counsel submits that
when the Will was executed by the father in the year 1993
and the same was not challenged and to that effect also
earlier in the appeal in R.A.No.6/2014 definite finding is
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given that said Will has not been challenged. The counsel
also would vehemently contend that even the RTC also
discloses that schedule 'A' and 'B' properties are standing
in the name of the plaintiff and the same is also based on
the said Will and the name of the appellant is also found in
respect of the property which was allotted in terms of the
Will in favour of the appellant hence, now cannot contend
that the order impugned is erroneous.
6. Having heard the learned counsel appearing for
the respective parties and also on perusal of the material
available on record, it discloses that there is no dispute
with regard to the relationship between the parties. It is
also not in dispute that earlier there was a suit and
preliminary decree was passed in favour of the father and
no dispute that final decree has not been drawn in terms
of the preliminary decree. It is also not in dispute that
earlier also suit was filed for the relief of partition and
separate possession and the said suit was also dismissed
and appeal was filed and in the appeal, matter was
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remanded to the Trial Court with a direction to implead
other parties as well as include other properties of the
family and the same is dismissed for not taking of steps.
7. It is also not in dispute that the present suit is
filed wherein also claim is made with regard to 'A' and 'B'
schedule property in which she has been in possession of
the said property and also in the earlier proceedings, the
right of the parties has not been adjudicated on merits.
When such being the case, when the plaintiff also sought
the relief of temporary injunction in respect of 'A' and 'B'
schedule property and all the revenue documents stands
in the name of the plaintiff particularly 'A' and 'B' schedule
property and the Trial Court also in detail considered the
pleadings of the parties and in paragraph 13 discussed
with regard to the claim made by both the parties and in
paragraph 21 held that even if it is taken for the sake of
discussion that the findings given in O.S.No.53/2008 and
R.A.No.6/2014 regarding Will would not operate as res-
judicata then also when it is admitted by defendant No.1
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that his father was in possession of the suit properties and
other properties having possessory right in the said
properties and when Lingappa Muraya died leaving behind
his legal heirs and possessory right of Lingappa Muraya
devolved upon his legal heirs. The Trial Court also
observed that defendant No.1 contends that he is in
exclusive possession of the suit properties, but the RTC
extracts discloses otherwise that plaintiff No.1 is in
possession of plaint 'A' schedule properties excluding
house and plaintiff No.2 is in possession of 'B' schedule
properties. Taken note of all these facts and also
considering the documentary evidence available on record
which clearly discloses that the plaintiffs are in possession.
When such being the case, though the suit is filed for the
relief of partition and separate possession and the
plaintiffs are claiming right based on the Will and also the
First Appellate Court made an observation in
R.A.No.6/2014 that the said Will has not been challenged
and remanded the matter and also now, the suit is filed by
the appellant questioning the earlier Will executed by the
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father and also in terms of the Will, revenue documents
are also changed in the name of the appellant and the
respondents and prima facie documents discloses that RTC
stands in the name of the plaintiffs particularly 'A' and 'B'
properties and the Trial Court also taken note of the fact
that the house property which is in possession of
defendant/appellant and passed considered order and
reasons are assigned while passing such an order. Under
such circumstances, I do not find any error committed by
the Trial Court in allowing the application in part and
hence, there is no merit in this appeal to reverse the
finding of the Trial Court.
8. In view of the discussions made above, I pass
the following:
ORDER
The appeal is dismissed.
Sd/-
JUDGE
SN
