Karnataka High Court
Shri Kallppa vs Shri. Ramachandra on 12 November, 2024
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NC: 2024:KHC-D:16551
MFA No. 100650 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 12TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE C.M. POONACHA
MISCELLANEOUS FIRST APPEAL NO.100650 OF 2023 (CPC)
BETWEEN:
SHRI KALLPPA S/O.PRADANI URANE,
AGE: 72 YEARS, OCC: AGRICULTURE,
R/O: CHIKKODI, TQ: CHIKODI,
DISTRICT: BELGAVI - 590 201.
...APPELLANT
(BY SRI SHIVRAJ S. BALLOLI, ADVOCATE FOR
SRI CHETAN B. PATIL, ADVOCATE)
AND:
Digitally signed
by SAROJA
HANGARAKI
1. SHRI RAMACHANDRA S/O. PRADANI,
Location: High
Court of AGE: 70 YEARS, OCC: AGRICULTURE,
Karnataka
R/O: NEAR STADIUM, BEHIND MAGADUM
SCHOOL, JAISINGPUR, TAL: SHIROL,
DIST: KOLHPUR,
STATE: MAHARASTRA.
2. SMT. MANGAL SUBHAS ALIYAS BABU URANE,
AGE: 57 YEARS, OCC: HOUSE HOLD WORK,
R/O: 9TH LANE, DATTA COLONY,
CHANDUR ROAD, KABANUR,
TAL: HATAKANGALA, DIST: KOLHPUR,
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MFA No. 100650 of 2023
3. SHRI PRAVEEN SUBHAS @ BABU URANE,
AGE: 34 YEARS, OCC: PRIVATE SERVICE,
R/O: 9TH LANE, DATTA COLONY,
CHANDUR ROAD, KABANUR,
TQ: HATAKANGALA, DIST: KOLHAPUR.
4. SMT. SWATI RAM TELSINGE,
AGE: 37 YEARS,
OCCU: HOUSEHOLD WORK,
R/O: 3RD LANE, DATTA COLONY,
CHANDUR ROAD, KABANUR,
TQ: HATAKANGAL, DIST: KOLHAPUR
...RESPONDENTS
(BY SRI NEELENDRA D. GUNDE, ADVOCATE FOR R1 TO R4)
THIS MFA IS FILED U/O.43 RULE 1 R/W SECTION 104 OF THE
CODE OF CIVIL PROCEDURE, SET ASIDE THE IMPUGNED ORDER
DATED 01.12.2022 PASSED BY THE LEARNED SENIOR CIVIL JUDGE,
CHIKODI IN O.S.NO.07/2020 ON I.A.NO.III AND THEREBY DISMISS
THE IA NO.III FILED BY THE DEFENDANT/RESPONDENT 1 TO 4 AND
ETC.,
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE C.M. POONACHA
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MFA No. 100650 of 2023
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA)
The present appeal is filed by the plaintiff challenging
the order dated 01.12.2022 passed on I.A No.III filed
under Order XXXIX Rule 1 and 2 of the Code of Civil
Procedure, 19081 in O.S No.7/2020 by Court of Principal
Senior Civil Judge, Chikodi2.
2. The relevant facts in brief leading to the present
appeal are that the appellant/plaintiff instituted a suit in
O.S No.7/2020 seeking for a 5/8th share in the suit
properties and also for other reliefs. The respondent Nos.1
to 4 herein who were arrayed as defendant Nos.1 to 4 in
the suit entered appearance before the Trial Court and
filed their written statement contesting the case of the
plaintiff. The defendants, vide the said written statement
also, made a counter claim seeking for declaration,
damages and other reliefs. The defendants also filed I.A
No.III under Order XXXIX Rule 1 and 2 of the CPC to
Hereinafter referred to as the 'CPC'
Hereinafter referred to as the 'Trial Court'
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restrain the plaintiff from disturbing their peaceful
possession in respect of R.S No.307/3 and R.S No.307/4.
The said application was objected to by the plaintiff. The
Trial Court, by its order dated 01.12.2022, allowed I.A
No.III. Being aggrieved, the present appeal is filed.
3. Learned counsel for the appellant assailing the
order passed by the Trial Court vehemently contends that
the Trial Court while allowing I.A No.III has not recorded
any finding with regard to any encroachment made by the
plaintiff. Further, the order of the Trial Court would have
the effect of excluding the plaintiff from possession of the
suit properties which he is otherwise entitled to jointly
possess with the defendants. Hence, he seeks for allowing
of the present appeal and setting aside of the order
passed by the Trial Court.
4. Per contra, learned counsel for the respondents
justifies the order passed by the Trial Court and further
contends that there has been a prior partition and the said
prior partition having been acted upon by the plaintiffs, as
the plaintiffs have sold the properties that was allotted to
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share. That the Trial Court has adequately considered the
factual matrix of the matter and allowed the application
which ought not to be interfered with by this Court in the
present appeal.
5. It is forthcoming that the Trial Court while
considering I.A No.III filed by the defendants has held as
follows:
10. In order to prove alleged partition as
claimed by defendants, the defendants mainly
rely on an unregistered partition deed dated
30.06.2013, wherein it is mentioned that the
plaintiff, the defendant-1 and the deceased
Subhash, were in separate possession and
enjoyment of 2 acres 13 guntas each in said
R.S.No.307 and accordingly they partitioned said
land in three hissas. Further, as per said partition,
the said land is phoded as R.S.No.307/3,
R.S.No.307/4 and R.S.No.307/5 and the names of
defendant-1, deceased Subhash and plaintiff, is
entered to R.S.No.307/3, R.S.No.307/4 and
R.S.No.307/5 respectively. Accordingly, they are
in separate possession and enjoyment of the
same. Further, according to defendants, after said
partition the plaintiff sold some of the portion of
his land in R.S.No.307/5 to third parties. Hence, it
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is contended that as per said partition the
defendants 1 to 4 are in separate possession and
enjoyment of R.S.No.307/3 and R.S.No.307/4.
But, the plaintiff is interfering and trying to
encroach defendants' land.
11. The documents produced by parties at this
stage clearly show that the plaintiff, defendant-1
and deceased Subhash, were in separate
possession and enjoyment of said R.S.No.307/3,
R.S.No.307/4 and R.S.No.307/5 respectively.
Whether the said separate possession is based on
partition or it is only a family settlement is
altogether a different aspect. But, at this stage,
the documents placed on record clearly disclose
separate possession of defendants over
R.S.No.307/3 and R.S.No.307/4. Further, the
plaintiff has not explained why said R.S.No.307/3
is sub-phoded as R.S.No.307/3, R.S.No.307/4
and R.S.No.307/5.
12. As the defendants have proved their
exclusive possession over suit R.S.No.307/3 and
R.S.No.307/4, even if it is presumed that there is
no partition between plaintiff and defendants till
date, as the defendants 1 to 4 have proved their
exclusive possession over suit R.S.No.307/3 and
R.S.No.307/4, their possession needs to be
protected."
(emphasis supplied)
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6. It is forthcoming that, the Trial Court has
noticed that, the defendants have demonstrated that they
have been in exclusive possession of the properties
bearing R.S No.307/3 and R.S No.307/4. It is further
noticed that the R.S No.307/5 was allegedly allotted to the
name of the deceased defendant No.1 and plaintiff, and
that the plaintiff has sold some portion of his land in R.S
No.307/2 to third parties.
7. The Trial Court considering the material on
record has recorded a finding that the defendants are
entitled to the order of injunction as sought for in I.A
No.III.
8. It is clear from the aforementioned that the
Trial Court has exercised its discretion and allowed I.A
No.III filed by the defendants. The plaintiffs have failed in
demonstrating that the said exercise of discretion by the
Trial Court is contrary to any specific material on record
and the findings recorded by the Trial Court are in any
manner erroneous.
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9. In view of the aforementioned, the above
appeal is dismissed as being devoid of merit.
10. The observations made by the Trial Court as
well as this Court are only for the purpose of consideration
of I.A No.III and the Trial Court shall proceed further in
the suit uninfluenced by any of the observations made
either by the Trial Court or this Court.
11. Needless to state that the parties shall co-
operate with the Trial Court to dispose of the suit as
expeditiously as possible.
Sd/-
(C.M. POONACHA)
JUDGE
PMP
CT-ASC
