Karnataka High Court
Mrs Geetha Mani P Shetty vs Sri Ganesh Bangera on 5 March, 2024
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MFA No. 2295 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
MISCELLANEOUS FIRST APPEAL NO. 2295 OF 2023 (CPC)
BETWEEN:
1. MRS. GEETHA MANI P. SHETTY
W/O PADMANABHA B. SHETTY
D/O M. SOMASHEKARA BANGERA
AGED ABOUT 51 YEARS
R/AT PRAKRUTHI, KUDRIPADAVU,
KALLAMANDKURU VILLAGE,
MANGALURU-574274
2. MRS. LATHA MANI HARISH
W/O. C.G. HARISH
D/O. M. SOMASHEKARA BANGERA
AGED ABOUT 49 YEARS
R/AT NO.9-150-7,
VIVEKANANDA NAGAR
PRAANTHYA, MASTHIKATTE,
MOODABIDRI,
DAKSHINA KANNADA DISTRICT-574197
Digitally 3. MRS. LAILA MANI N. SHETTY
signed by BS
RAVIKUMAR W/O NUTHAN SHETTY
Location: D/O M. SOMASHEKARA SHETTY
HIGH AGED ABOUT 47 YEARS
COURT OF
KARNATAKA R/AT NANDAGOKULA,
PADUBAILU, KARNAD,
MULKY-574154
DAKSHINA KANNADA DISTRICT.
...APPELLANTS
(BY SRI. RAJASHEKAR S., ADVOCATE)
AND:
1. SRI GANESH BANGERA
S/O M. SOMASHEKARA BANGERA
AGED ABOUT 47 YEARS
R/AT SRI GANESH NIVAS
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MFA No. 2295 of 2023
BEJAI KAPIKAD
MANGALURU-575004.
2. SANTOSH D'SOUZA
S/O D. LAWRENCE D'SOUZA
AGED ABOUT 50 YEARS
R/AT KALPANA COTTAGE,
KUDRIPADAVU POST,
KALMUNDKAR, MODABIDRI TALUK,
DAKSHINA KANNADA DISTRICT-574274.
...RESPONDENTS
(BY SRI. P.P.HEGDE, SENIOR ADVOCATE FOR
RACHITHA RAJSHEKAR, ADVOCATE)
THIS MFA IS FILED UNDER SECTION 104 READ WITH ORDER
43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 29.03.2023
PASSED ON I.A.NO.II IN OS.NO.72/2023 (OLD OS.NO.320/2022) ON
THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, MOODIBIDIRI
D.K., DISMISSING THE IA.NO.2 FILED UNDER ORDER 39 RULES 1
AND 2 READ WITH SECTION 151 OF CPC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The plaintiff Nos.1, 2 & 3 in O.S.No.72/2023 on the file of
the Senior Civil Judge and JMFC, Moodbidri, Dakshina Kannada
have filed this appeal challenging an order dated 29.03.2023,
by which, their application (I.A.No.II) filed under Order XXXIX
Rules 1 and 2 of Civil Procedure Code was rejected.
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2. Briefly stated the contentious facts are that the suit
properties are land bearing Sy.No.140/6 and as per the
saguvali chit Sy.No.140/2 measuring 2 acres 90 guntas of 'A'
schedule property and 2 acres 20 guntas of 'B' schedule
property situated at Kallamankuru village, Mangaluru Taluk.
The plaintiffs claimed that the defendant No.2 had purchased
42 cents of land lying adjacent to schedule 'A" property and
started interfering with the possession of the plaintiffs and their
brother which compelled them to file O.S.No.4/2007 for
perpetual injunction. The said suit was decreed and the
defendant No.2 was restrained from interfering with the
possession of the plaintiffs in the suit schedule properties.
They contended that their father died on 21.10.2013 leaving
behind a Will, in terms of which, 70 cents was given to the
plaintiffs and 2 acres 20 cents was given to the defendant No.1.
They contend that serious disputes arose between them which
resulted in a family arrangement dated 01.06.2016, in terms of
which, 70 cents of land which was given to plaintiffs under the
Will was allotted to their share apart from 1/4th share in the
remaining properties. They alleged that they were demanding
the defendant No.1 to divide the properties as per the family
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arrangement dated 01.06.2016, but the defendant No.1 was
postponing it, on one or the other ground. On 01.11.2022, the
defendant No.2 tried to lay a fence around the suit 'B' schedule
property and it was only then they came to know that the
defendant No.1 had conveyed 02 acres 20 cents to the
defendant No.2 based on the Will executed by their father. The
plaintiffs therefore, sought for the partition and separate
possession of their 1/4th share in the land bearing Sy.No.140/6
measuring 02 acres 20 cents. They filed an application under
Order XXXIX Rules 1 and 2 of Civil Procedure Code for an order
of an interim injunction to restrain the defendant Nos.1 and 2
from interfering with their possession in the suit schedule 'B'
property.
3. This application was opposed by the defendant
Nos.1 and 2 who contended that the plaintiffs had accepted the
Will executed by their father and they had partitioned 70 cents
of land that was given to them by their father. Therefore, they
contended that the defendant No.1 was the full and absolute
owner of 02 acres 20 cents of land and that he was entitled to
encumber the same. They claimed that defendant No.1
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accordingly conveyed the entire extent of 02 acres 20 cents to
the defendant No.2 and placed him in possession.
4. Based on these contentions and the documents
placed on record, the Trial Court by the impugned order
rejected the application filed by the plaintiffs on the following
grounds:
i) The plaintiffs had deliberately failed to place on
record the partition deed dated 21.11.2020, in
terms of which they had divided the property
measuring 70 cents.
ii) It held that there was nothing on record to
establish that the plaintiffs were in possession of
02 acres 20 cents of land in 'B' schedule property.
iii) The Will dated 20.07.2009 executed by the father
of the plaintiffs indicated that 02 acres 20 cents
was bequeathed to the defendant No.1 and
therefore, he was entitled to encumber it to the
defendant No.2. It also held that the family
arrangement dated 01.06.2016 propounded by
the plaintiffs was yet to be proved before the
Court.
5. Being aggrieved by the said order, this appeal is
filed.
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6. The learned counsel for the plaintiffs contended that
though their father had bequeathed 70 cents of the land in suit
'A' schedule to the plaintiffs in terms of the Will dated
20.07.2009, a larger extent of land measuring 02 acres 20
cents of land in suit 'B' schedule was given to the defendant
No.1 which resulted in severe heart burn between the plaintiffs
and defendant No.1 which ultimately was settled in terms of a
family arrangement dated 01.06.2016. As per the said family
arrangement, apart from 70 cents of land which was given to
the plaintiffs, they were also entitled to 1/4th share in the suit
schedule properties. He therefore, contended that the question
whether the family arrangement dated 01.06.2016 was entered
into or not, is a triable issue and therefore, pending disposal of
the suit, their possession in the suit properties could not be
disturbed. He contended that the defendant No.1 did not have
an exclusive right to convey the entire property in the light of
the family arrangement dated 01.06.2016.
7. Per contra, the learned senior counsel for the
defendant Nos.1 and 2 contended that the sale deed executed
by the defendant No.1 in favour of the defendant No.2 was
based on the Will dated 20.07.2009 in terms of which, 02 acres
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20 cents of land in suit 'B' schedule fell to the share of
defendant No.1. He submits that this Will dated 20.07.2009
was duly acted upon and accepted by the plaintiffs. The
plaintiffs had entered into a partition deed and divided 70 cents
of land amongst them that was bequeathed to them by their
father under the Will dated 20.07.2009. He therefore, contends
that at this stage, except the self-serving statement of the
plaintiffs that there was a family arrangement dated
01.06.2016, there is no other material to establish that such a
family arrangement was admitted or accepted by the defendant
No.1. He therefore, contends that the defendant No.2 being
placed in possession of the suit property, cannot be restrained
from enjoying his own property.
8. In reply, the learned counsel for the plaintiffs
contended that a house existed on the suit schedule 'B'
property and the defendant Nos.1 and 2 are trying to disturb
the plaintiffs from the suit schedule house.
9. I have considered the submissions made by the
learned counsel for the appellants and learned counsel for the
respondents.
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10. As rightly contended by the learned senior counsel
for the defendants, the execution of the Will dated 20.07.2009
cannot be called in question either by the plaintiffs or defendant
No.1, as both of them have acted upon and accepted the lawful
execution of the said Will. On 21.11.2020, the plaintiffs have
partitioned 70 cents of land in suit 'A' schedule property that
was bequeathed to them under the Will dated 20.07.2009. The
house that existed on 70 cents of land, fell to the share of the
plaintiff No.1 as per the partition deed dated 21.11.2020. The
defendant No.1 based on the said Will has brought about a sale
in favour of defendant No.2 on 10.03.2021. Therefore, except
the family arrangement dated 01.06.2016, propounded by the
plaintiffs, there are no other documents to establish that the
plaintiffs had retained any right, title or interest in the schedule
'B' property.
11. Therefore, the Trial Court rightly refused to grant
an order of injunction restraining the defendants from
interfering with the possession of the plaintiffs' share in the suit
property. However, having regard to the fact that the plaintiffs
had pleaded that family arrangement was executed between
them and the defendant No.1, this being a triable issue, the
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Trial Court ought to have directed the parties to maintain
status-quo by directing the defendants not to encumber,
alienate, transfer or part with the possession of the suit
property in favour of any person, until the disposal of the suit.
This would protect the interest of the plaintiffs as well as the
defendants, pending disposal of the suit.
12. In that view of the matter, the impugned order
does not warrant any interference. However, in order to
maintain the status-quo of the property, pending disposal of
the suit, it is appropriate to restrain the defendants from
encumbering, transferring or alienating the suit schedule
property in any manner whatsoever in favour of any person,
whomsoever or part with the possession of suit property in any
manner whatsoever until disposal of the suit. The order of
status-quo will not affect any loan already raised by the
defendant No.2 from any agricultural cooperative bank on the
suit schedule property.
13. Similarly the defendants are restrained from cutting
or removing any standing trees in the suit schedule property,
but this will not come in the way of the defendants
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replanting/replacing any fallen or barren Areca nut trees or
coconut trees in the suit schedule property.
Sd/-
JUDGE
HJ
