Karnataka High Court
Mr Sriramappa vs Mr Muniyappa on 4 March, 2024
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2024:KHC:8863
WP No. 11507 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 11507 OF 2023 (GM-CPC)
BETWEEN:
MR SRIRAMAPPA
AGED ABOUT 43 YEARS,
S/O MUNIYAPPA
R/AT VEERARAHUNTNAHALLI VILLAGE,
SOMENAHALLI HOBLI,
GUDIBANDE TALUK- 562 104.
...PETITIONER
(BY SRI. MOHANA CHANDRA P.,ADVOCATE)
AND:
1. MR MUNIYAPPA
S/O LATE GANGAPPA
AGED ABOUT 72 YEARS,
R/AT NAYAKARA COLONY
NEAR ANJINEYA SWAMY TEMPLE,
6TH WARD, GUDIBANDE TOWN,
GUDIBANDE TALUK- 561 209.
2. SMT. HANUMAKKA
Digitally signed by
VANDANA S AGED ABOUT 69 YEARS,
Location: High W/O MUNIYAPPA
Court of Karnataka
R/AT 6TH WARD, C BLOCK,
NAYAKARA COLONY,
GUDIBANDE TOWN,
GUDIBANDE TALUK- 561 209.
...RESPONDENTS
(BY SRI. S R SREEPRASAD.,ADVOCATE)
THIS W.P IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION
OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DTD 31.03.2023
PASSED BY THE COURT OF SENIOR CIVIL JUDGE, GUDIBANDE IN
M.A.NO.08/2023 AND THEREBY REJECTED I.A.NO.6 UNDER ORDER 39
RULE 1 OF CPC IN O.S.NO.34/2019 VIDE ANNEXURE-M.
THIS PETITION, COMING ON FOR ORDER, THIS DAY, THE COURT
MADE THE FOLLOWING:
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WP No. 11507 of 2023
ORDER
This petition by the plaintiffs in O.S.No.34/2019 on the file of
the Civil Judge and JMFC, Gudibande is directed against the
impugned order dated 31.03.2023 passed in MA No.08/2023 by the
Senior Civil Judge, Gudibande whereby the First Appellate Court
allowed the appeal filed by the respondents and set aside the order
of temporary injunction passed in favour of the petitioner-plaintiff by
the Trial Court.
2. A perusal of the material on record will indicate that the
petitioner-plaintiff claiming to be the son of the respondent No.1-
defendant No.1 instituted the aforesaid suit for partition and
separate possession of his alleged share in the suit schedule
properties. The respondent No.1-defendant No.1 not only disputed
the alleged relationship of the plaintiff with him but also contended
that the suit schedule properties were his separate and self-
acquired properties and consequently the petitioner-plaintiff was
not entitled to any share in the suit schedule properties. The
petitioner-plaintiff filed the instant application I.A.No.6 for temporary
injunction restraining the respondents-defendants from putting up
construction over item No.1 of the plaint schedule properties. The
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said application was opposed by the respondents-defendants and
culminated in an order dated 02.02.2023 allowing I.A.No.6 filed by
the petitioner-plaintiff.
3. Aggrieved by said order passed on I.A.No.6, the
respondents-defendants filed the instant appeal which was allowed
by the First Appellate Court vide impugned order which is assailed
in the present appeal.
4. A perusal of the material on record will indicate that there
are several contentious issues that would arise for consideration
between the parties including the alleged relationship of the
petitioner-plaintiff with the respondent No.1-defendant No.1 which
would necessarily have to be established only during the course of
a full-fledged trial. So also, the question/issue as to whether
entitled to claim a share in the suit schedule properties in the light
of the judgment of the Apex Court in the case of Uttam v/s
Soubhag Singh and Others AIR 2016 (4) SCC 68 would also
necessarily have to be decided by the Trial Court after hearing both
parties.
5. It is relevant to state that the construction that is being put
up is only in item No.1 of the suit schedule properties and not item
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No.2 of the plaint schedule properties. Further the alleged right
and interest of the petitioner can be adequately safeguarded by
directing that any construction put up by the respondents-
defendants during the pendency of the suit would be subject to the
final out-come of the suit and that the respondents-defendants
would not be entitled to claim any equities in this regard and that
they would restore status-quo ante in the event the petitioner-
plaintiff succeeds in the suit. It is also relevant to state that while
passing the impugned order the First Appellate Court held as
under:
POINT NO.1 :
7. It is the contention of plaintiff that, he has filed suit
for partition in respect of suit schedule properties.
Subsequently defendant no.1 gifted the property in favour
of defendant no.2. Defendant no.2 transferred the katha of
suit properties in her name. Taking advantage of katha
standing in her name defendant no.1 and 2 are illegally
trying to construct the building in the suit schedule property
by dumping the stones and M-sand. The defendants
proclaiming that they are going to construct the building
and to open petrol bunk. If defendants are succeeding to
construct building it will lead to multiplicity of proceedings.
Hence filed instant application before trial court to restrain
the defendants from construction of any building or
structure in the suit schedule property.
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8. Per contra it is contended by defendants that the
plaintiff that the plaintiff has no right, title and is possession
over suit schedule properties
9.The learned counsel for defendants argued that
the defendants have no capacity to construct building and
they are not trying to construct building in the suit schedule
property.
10. In the instant case the plaintiff is examined as
PW1 before trial court and got marked Ex.P1 to P12. On
perusal of entire materials on record it is clear that suit
schedule properties are originally belonged to ancestral of
plaintiff and defendant no.1. There after defendant no.1
and his brother Sriramappa and Thimmakka W/o
Venkatarayappa have entered the registered partition deed
as per Ex-P1. The defendant no.1 acquired the suit
schedule properties under B-schedule. The katha of suit
schedule properties got changed in the name of defendant
no.1 under partition deed as per Ex.P3 TO P6. On perusal
of gift deed dated 04.02.2021 and photos produced by
plaintiff it appears that defendant no.1 has gifted the suit
item no.1 in favour of defendant no.2 and trying to
construct building in the suit schedule properties by
dumping materials.
11. It is significant to note that on perusal of lease
deed and photos it reveals that construction is going on
and the defendants/appellants have invested huge amount
for the construction of said structure.
12.Learned counsel for appellants argued that
respondents is not his son. If at this juncture temporary
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injunction order is granted appellants would be put into
greater hardship as they have invested huge men and
materials. At this juncture if temporary injunction is not
granted the plaintiff would not be put into a greater
hardship. If temporary injunction order is granted
appellants would be put into greater hardship as they have
invested huge amount for construction of structure for
petrol bunk. Hence I find that it is necessary to allow the
appeal subject to result of the suit the appellants have to
face consequences. Therefore, I answer Point No.1 in
Affirmative.
POINT NO.2 :
13. In view of above discussion and findings on the
above point, I proceed to pass the following:
ORDER
Appeal which is filed by the
applicants/appellants defendants U/o 43 R.1 of
CPC is hereby allowed.
The impugned order passed by the trial
Court in O.S.No.34/2019 on I.A.No.6, dated
02.02.2023 is hereby set aside.
I.A.no.6 which is filed by plaintiff/
respondents U/o 39 Rule 1 and 2 of CPC is
hereby rejected/ dismissed.
Subject to result of the suit
appellants/defendants have to face
consequences.
Parties are directed to bare their own
costs.
Send a copy of this order to the trail Court
forthwith along with trial court records if any."
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6. As can be seen from the impugned order, the First
Appellate Court has taken into account that huge investments have
been made by the respondents-defendants for the purpose of
putting up the construction and the balance of convenience would
lie in their favour. Under these circumstances, I deem it just and
appropriate to dispose of this petition by modifying the orders
passed by the Trial Court and the First Appellate Court by
permitting the respondents for completing the construction subject
to certain conditions.
7. In the result, I pass the following:
ORDER
(i) The petition is hereby disposed of.
(ii) The impugned order dated 02.02.2023 passed on
I.A.No.6 in O.S.No.34/2019 passed by the Trial Court,
is hereby modified.
(iii) The respondents are permitted to complete the
construction being put up on Item No.1 of the plaint
schedule properties subject to the condition that the
respondents shall not claim any equity in this regard
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and that the said construction would be subject to the
final outcome of the suit.
(iv) It is further directed in the event the respondents do
not succeed in the suit, the respondents would restore
the status-quo ante of the properties as they existed as
on the date of filing of the suit and the said
construction would be without prejudice to the rights
and contentions of the parties.
SD/-
JUDGE
DHA
