Karnataka High Court
Smt. Parvati Alias Parvatewwa W/O ... vs Mallappa S/O Tammanna Hanagandi on 11 January, 2024
Author: V.Srishananda
Bench: V.Srishananda
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NC: 2024:KHC-D:726
MFA No. 102688 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 11TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
MISCELLANEOUS FIRST APPEAL NO.102688 OF 2022 (CPC)
BETWEEN:
SMT. PARVATI @ PARVATEWWA
W/O. SHRISHAIL KORADDI,
AGE. 36 YEARS, OCC. AGRICULTURIST,
R/O. NAVALAGI-587311
TQ. JAMKHANDI, DIST. BAGALKOTE.
...APPELLANT
(BY SRI. SHRIHARSH A.NEELOPANT, ADVOCATE)
AND:
1. MALLAPPA
S/O. TAMMANNA HANAGANDI,
AGE. 46 YEARS, OCC. AGRICULTURIST,
Digitally signed R/O. NAVALAGI-587311
by SAMREEN
AYUB
DESHNUR TQ. JAMAKHANDI, DIST. BAGALKOTE.
Date:
2024.02.01
14:30:00 +0530
2. MALLAPPA
S/O. SANGAPPA MAGDUM,
AGE. 53 YEARS, OCC. AGRICULTURIST,
R/O. NAVALAGI-587311
TQ. JAMAKHANDI, DIST. BAGALKOTE.
3. RAVINDRA
S/O. CHANDRASHEKHAR BHUTI,
AGE. 53 YEARS, OCC. BOND WRITER,
R/O. BANAHATTI-587311
TQ. JAMAKHANDI, DIST. BAGALKOTE.
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MFA No. 102688 of 2022
4. HANAMANTH
S/O. KALLAPPA PATIL,
AGE. 55 YEARS, OCC. AGRICULTURIST,
R/O. KALATIPPI-587315
TQ. JAMAKHANDI, DIST. BAGALKOTE.
5. SMT. TANGEWWA
W/O. MALLAPPA KALTIPPI,
AGE. 73 YEARS, OCC. AGRICULTURIST,
R/O. NAVALAGI-5873311
TQ. JAMAKHANDI, DIST. BAGALKOTE.
...RESPONDENTS
(BY SRI. S.C. BHUTI, ADVOCATE FOR R1;
SRI. K.S. PATIL, ADVOCATE FOR R4;
R2, R3, R5 SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/O.43
RULE 1(r) OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING
TO SET ASIDE ORDER DATED 22.08.2022, IN
R.A.NO.5035/2022 PASSED BY THE I ADDITIONAL DISTRICT
AND SESSIONS JUDGE, BAGALKOT TO SIT AT JAMAKHANDI,
BY ALLOWING THE I.A. NO. II FILED BY THE APPELLANTS IN
THE INTEREST OF JUSTICE AND EQUITY.
THIS MISCELLANEOUS FIRST APPEAL, COMING ON FOR
HEARING, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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NC: 2024:KHC-D:726
MFA No. 102688 of 2022
JUDGMENT
Heard learned counsel Sri.Shriharsh A. Neelopant
and Sri.S.C.Bhuti.
2. Present appeal is filed by the appellant/plaintiff
challenging the dismissal of the application filed under
Order 39 Rule 1 and 2 CPC in RA No.5035/2022 by order
dated 22.08.2022.
3. Brief facts of the case are as under:
3.1 A suit for declaration and injunction came to be filed
by the appellant in OS No.122/2016 in respect of
immovable properties mentioned in the schedule there
under.
3.2 Suit on contest came to be rejected holding that
plaintiff has failed to prove the legal title over the suit
property. Being aggrieved by the dismissal of the suit in
OS No.122/2016 dated 04.07.2022, unsuccessful plaintiffs
have preferred first appeal in RA No.5.35/2022 and the
same is pending consideration.
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3.3 During the pendency of the appeal, an application
under Order 39 Rule 1 and 2 CPC came to be filed by the
appellant seeking an order of injunction against the
respondents/defendants from restraining defendants from
alienating the suit properties.
3.4. Said application was opposed by the contesting
respondents on the ground that plaintiffs have got nothing
to do with the suit property and a false claim has been laid
and respondent being the owner of the suit property
cannot be restrained from enjoying the suit property.
3.5 Learned trial judge in the first appellate court on
judicious consideration of the rival contentions of the
parties dismissed the said application by impugned order.
4. Being aggrieved by the same, plaintiffs have
preferred the present appeal.
5. Learned counsel Sri.Sriharsha A Neelopanth for
appellant reiterated the grounds urged in the appeal
memo contended that relief that has been sought for is
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equitable relief and in the absence of injunction,
respondents have already alienated the suit property and
if they continued to do so, the very purpose of filing the
appeal would render infructuous and therefore, sought for
allowing the appeal.
6. Per contra, learned counsel Sri.S.C.Bhuti
representing respondents contended that suit of the
appellant on contest came to be rejected.
7. He further contended that learned trial judge has
recorded a categorical finding that plaintiffs have failed to
prove the tile over the suit property and as such, the relief
of declaration and consequential injunction was rejected
after thorough enquiry and prima facie it is the
respondents who are the owners of the property.
8. When defendants are owners of the property,
respondents have got every right to enjoy the suit
properties absolutely. Hence, submits that appeal needs to
be rejected.
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9. In the light of the arguments put forth on behalf of
the parties, this court has perused the material on record
meticulously.
10. On such, perusal, it is crystal clear that suit of the
plaintiff came to be dismissed by a considered judgment
dated 04.07.2022. Being aggrieved by the same, appeal in
RA No.5035/2022 is filed by the appellants herein,
interalia, seeking an order of injunction that respondents
be restrained from alienating the suit property.
11. Learned judge in the first appellate court heard the
parties in detail and raised necessary points and had a
detailed discussion about the respective contentions of the
parties in the impugned order.
12. In the impugned order itself, the learned trial judge
has bestowed his attention that the land in survey
No.167, totally measures 30 acres 24 guntas and there
was an earlier suit in OS No.65/2005 on the file of Civil
Judge Banahatti and taking note of the earlier civil
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proceedings and also taking note of the fact that the
plaintiffs have failed to establish before the trial court, the
legal title over the suit property, came to the conclusion
that there is no prima facie case or balance of convenience
in the case of appellants in seeking an order of injunction.
Besides, no case is made out insofar as irreparable injuries
that would be caused to the plaintiff's interest rejected the
prayer. The material available on record would also go to
show that the plaintiffs are seeking an order of injunction
not to alienate the suit property.
13. Since, plaintiffs have failed to make out legal title
over the suit property, the rejection of the application
seeking injunction is just and proper. Further, if the
appellant were to succeed in RA No.5035/2022, it is
always open for the appellants to get back the property as
subsequent alinees will be termed as purchasers pendente
lite and they are bound by doctrine of lis pendence.
14. Accordingly, this court is of the considered opinion
that the impugned order which has been passed by the
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learned judge in the first appellate court is based on the
sound appreciation of the material available on record and
exercising the proper discretion.
15. Hence, the following:
ORDER
i) Appeal is merit less and hereby dismissed.
ii) Taking note of the fact that the main appeal
has not been proceeded further from the stage of
the arguments, the appeal in RA No.5035/2022 be
disposed of as early as possible.
Sd/-
JUDGE
HMB
