Karnataka High Court
Smt. Lakshmamma @ Lakshmi Devamma vs Sri B.S.N. Hari on 10 January, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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MFA No. 6359 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 6359 OF 2022 (CPC)
BETWEEN:
1. SMT. LAKSHMAMMA @ LAKSHMIDEVAMMA
W/O LATE SRI M SHAMANNA
AGED ABOUT 73 YEARS
2. SRI RAJESH S.
S/O LATE SRI M SHAMANNA
AGED ABOUT 50 YEARS
3. SRI SRIDHAR S.
S/O LATE SRI M SHAMANNA
AGED ABOUT 46 YEARS
APPELLANT NOS.1 TO 3 ARE
Digitally signed R/AT NO.261, 67TH CROSS,
by SHARANYA T 5TH BLOCK, RAJAJINAGAR
Location: HIGH BENGALURU-560010.
COURT OF
KARNATAKA
4. SMT. JAYASHREE S.
D/O LATE SRI M. SHAMANA
W/O SRI VENKATASWAMAPPA
AGED ABOUT 55 YEARS
R/AT NO.27, P AND T COLONY
1ST CROSS, R.T. NAGAR
BENGALURU-560032.
5. SMT. HEMA S.
D/O LATE SRI M. SHAMANNA
W/O SRI VISHWANATH
AGED ABOUT 52 YEARS
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MFA No. 6359 of 2022
R/AT ABBIGERE VILLAGE
EAST JALAHALLI POST
BENGALURU.
...APPELLANTS
(BY SRI. RAVINDRA M.R., ADVOCATE)
AND:
1. SRI B.S.N. HARI
S/O B.N. SATHYANNA
AGED ABOUT 67 YEARS
2. SRI D. RAVISHANKAR
S/O LATE D KAMESH
AGED ABOUT 68 YEARS
SMT. B.S. LEELAVATHI
W/O SRI B.N. SATHYANNA
SINCE DECEASED REPRESENTED
BY HER LEGAL HEIR
SRI B.S.N.HARI S/O B.N. SATHYANNA
AGED ABOUT 62 YEARS
RESPONDENT NOS.1 AND 2 ARE
R/AT NO.1 HARA HOUSE,
HOSUR MAIN ROAD,
WILSON GARDEN,
BENGALURU-560027.
3. SRI R.S. PANASUDAKAR
AGED ABOUT 48 YEARS
REGD. OFFICE AT NO.1
GUTTE ANJANEYA STREET
HOSUR MAIN ROAD
WILSON GARDEN
BENGALURU-560027.
...RESPONDENTS
(BY SRI. S. SRIKANTH, ADVOCATE FOR C/R1
[NOTICE NOT ORDERED IN RESPECT OF R3])
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MFA No. 6359 of 2022
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC
AGAINST THE ORDER DATED 03.08.2022 PASSED ON I.A.
NO.II IN O.S.NO. 4782/2021 ON THE FILE OF THE COURT OF
THE XIV ADDITIONAL CITY CIVIL JUDGE, BENGALURU
(CCH.NO.28), DISMISSING THE I.A. NO.II FILED UNDER
ORDER XXXIX RULE 1 AND 2 READ WITH SECTION 151 OF
CPC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This Miscellaneous First Appeal is filed against the
dismissal of I.A filed under Order 39 Rule 1 and 2 of CPC
which is numbered as I.A.No.2 before the Trial Court in
O.S.No.4782/2021 on the file of XIV Addl. City Civil Judge
at Bengaluru (CCCH-28).
2. Heard the learned counsel for appellants and
also the learned counsel for respondents.
3. The factual matrix of the case of the plaintiff
before the Trial Court that the suit schedule properties are
the ancestral properties of their family. It is also
contended that there is no partition in the family.
J.M.Krishnappa who is the uncle of the plaintiff No.2 used
to manage the entire family properties. After his death his
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son by name J.K.Jagadeesh is in peaceful possession and
enjoyment of the suit schedule property. The ancestors of
the father of the plaintiff No.2 filed a suit against all the
properties of the family and against all the members of the
joint family for the relief of partition in O.S.No.5702/2008.
The plaintiffs are defendant Nos.2 to 6 in the said suit. The
defendant Nos.1 to 4 herein are also parties to the said
suit and they are the defendant Nos.19, 19(a), 64 and 65
in the said suit.
4. The plaintiffs have contended that the
defendants herein collusion with the plaintiffs and other
defendants in the said suit have entered into the
confirmation of sale deed in their favour and also filed an
application to delete their names and also the plaint
schedule properties purchased by them. The plaintiffs have
resisted the said application. The plaintiffs have contended
that same is done with an intention to deprive their
legitimate share. It is contended that the sale deeds,
confirmation deeds will not confer any absolute right to
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deal or dispose of the property. The defendants are
altering the nature of the land to form residential sites and
have also constructed the compound wall and have
dumped building materials to construct the apartments
and have started to collect installments from general
publics towards sale of flats. Even serious efforts are being
made to hypothecate the property to financial institutions
or to create huge charges against their borrowings. The
intention of the defendants is to deal and dispose of the
properties so as to prevent the allocation of shares in
O.S.No.5702/2008 to the plaintiff herein. If they have
succeeded in the said act it will cause prejudice to the
plaintiffs. In the said suit also they have filed an
application for the relief of temporary injunction, it is
numbered as I.A.No.2 wherein prayer is made to grant
temporary injunction restraining the defendants from
interfering with the possession of the plaint schedule
properties and the same was dismissed in coming to the
conclusion that the plaintiffs are not in possession of the
suit schedule property and it is the defendants who are in
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possession of the property and they have not made out
any prima facie case. Being aggrieved by the said order,
the present Miscellaneous First Appeal is filed.
5. The counsel appearing for the appellants would
vehemently contend that in O.S.No.5702/2008, an
application was filed to delete the parties and also the
schedule properties and the same was allowed.
Subsequently an application is filed to recall the order and
the said order was recalled, against the said recall order,
the Writ Petition was also filed and stay has been granted
in the said Writ Petition. The said Writ Petition is pending
before this Court. The counsel would submits that in the
meanwhile the defendants made an attempt to create
third party right. Hence, the present suit is filed and
sought for the relief of temporary injunction.
6. The counsel would vehemently contend that
when the suit is filed for the relief of partition in
O.S.No.5702/2008 wherein the respondents are also the
parties and the appellants are also parties in the said
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partition suit. Unless the rights of the parties are
determined, they cannot create any third party right. The
Trial Court fails to take note of the said fact into
consideration and erroneously comes to the conclusion
that appellants/plaintiffs are not entitled for the relief.
7. Per Contra, the counsel appearing for the
respondents would submits that no dispute with regard to
the suit for the relief of partition is pending. The counsel
would submits that the very plaintiff has executed the
confirmation deed, based on that only the said property
was deleted. When the order was recalled, the Writ
Petition is filed and stay has been granted in the said Writ
Petition. Instead of pursuing the remedy in the Writ
Petition, separate suit is filed seeking the relief of
permanent injunction and not seeking any other
comprehensive relief. Taking into note of material on
record and also an admission of the plaintiff that they are
not in the possession of the property, the Trial Court has
not granted any relief.
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8. Having heard the appellants' counsel and the
counsel appearing for the respondents and also taking into
note of the application and also the affidavit filed before
the Trial Court, wherein relief is sought for temporary
injunction restraining the defendants from interfering with
the possession of the plaint schedule properties. Having
considered the material available on record, it is clear that
suit for partition in O.S.No.5702/2008 is pending. It is also
not in dispute that when one of the schedule property was
deleted from the proceedings, an application was filed and
the same was recalled, the Writ Petition is pending before
this Court.
9. It is also important to note that in the plaint
averments and also in the accompanying affidavit, the
plaintiff No.2 has stated that suit schedule properties are
the ancestral properties of their family. It is also
contended that there is no partition in the family and also
stated that J.M.Krishnappa who is the uncle of the plaintiff
No.2 used to manage the entire family property. It is also
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stated that after the death of J.M.Krishnappa, his son by
name J.K.Jagadeesh is in possession and enjoyment of the
suit schedule property, when such pleading is made and
also the relief sought before the Trial Court is that
defendants have put up the compound and also the relief
is sought for pull down that compound. When there is
specific admission that they have put up the compound
wall and relief is sought for mandatory injunction to
remove the said compound wall. Hence, it is clear that in
the very pleadings it is stated that the plaintiff is not in
possession. When such being the case, question of
granting the relief of injunction restraining the defendants
from interfering with possession of the plaint schedule
properties does not arise. The Trial Court also while
rejecting the application, comes to the conclusion that
material which discloses that the plaintiffs are not in
possession of the property and the defendants are in
possession of the property. Hence, answered the point
No.1 as negative. When the plaintiffs have not proved the
fact that they are in possession of the property, the
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question of granting temporary injunction restraining
defendants from interfering with possession of the plaint
schedule properties does not arise and pleading is clear
that Jagadeesh is in possession after the death of his
father. Hence, I do not find any error committed by the
Trial Court in rejecting the application filed under Order 39
Rule 1 and 2 of CPC. Hence, there is no merit in the
appeal.
10. In view of the discussions made above, I pass
the following:
ORDER
The Miscellaneous First Appeal is dismissed.
The Trial Court is directed not influence with the
observation made by this Court and consider the matter
on merits.
Sd/-
JUDGE
RHS
