Karnataka High Court

Shri Ramanna vs Shri Shivappa Revansiddappa Alias ... on 12 November, 2024

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                                                                NC: 2024:KHC-D:16541
                                                            MFA No. 100656 of 2022




                                     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.100656 OF 2022 (CPC)


                      BETWEEN:

                      1.     SHRI RAMANNA
                             S/O. SHIDARAY DODDANINGAPPGOL,
                             AGE: 47 YEARS, OCC: AGRICULTURE,
                             R/O: KOTTALAGI, TAL: ATHANI,
                             DIST: BELAGAVI - 591 265.

                      2.     SHRI RAGHUNATH
                             S/O. SHIDARAY DODDANINGAPPGOL,
                             AGE: 42 YEARS, OCC: AGRICULTURE,
                             R/O: KOTTALAGI, TAL: ATHANI,
                             DIST: BELAGAVI - 591 265.

                      3.     SMT. YOSADHA
                             S/O. SHIDARAY DODDANINGAPPGOL,
                             AGE: 76 YEARS,
                             OCC: HOUSEHOLD AND AGRICULTURE,
Digitally signed by
SAROJA
HANGARAKI
                             R/O: KOTTALAGI, TAL: ATHANI,
Location: High
Court of Karnataka
                             DIST: BELAGAVI - 591 265.
                                                                        ...APPELLANTS
                      (BY SRI VITTHAL S. TELI, ADVOCATE)


                      AND:

                      1.     SHRI SHIVAPPA REVANSIDDAPPA @ SIDDAPPA
                             DODDANINGAPPGOL,
                             AGE: 81 YEARS, OCC: AGRICULTURE,
                             R/O: KOTTALAGI, TAL: ATHANI,
                             DIST: BELAGAVI - 591 265,
                             NOW AT SHIVKRUPA NIVAS,
                             ASHRAM ROAD, NEAR B L D E,
                             VIJAYAPURA - 586 103.
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                                       NC: 2024:KHC-D:16541
                                     MFA No. 100656 of 2022




2.   SMT. KASTURI
     WD/O. SHIVAPPA DODDANINGAPPGOL
     @ KOTTALAGI,
     AGE: 74 YEARS, OCC: HOUSEHOLD WORK,
     R/O: KOTTALAGI, TAL: ATHANI,
     DIST: BELAGAVI - 591 265,
     NOW AT SHIVKRUPA NIVAS,
     ASHRAM ROAD, NEAR B L D E,
     VIJAYAPURA - 586 103.

3.   SMT. GEETA
     D/O. SHIVAPPA DODDANINGAPPGOL
     @ KATTALAGI,
     AGE: 51 YEARS, OCC: HOUSEHOLD WORK,
     R/O: KOTTALAGI, TAL: ATHANI,
     DIST: BELAGAVI - 591 265,
     NOW AT SHIVKRUPA NIVAS,
     ASHRAM ROAD, NEAR B L D E,
     VIJAYAPURA - 586 103.

4.   SMT. ROOPA
     D/O. SHIVAPPA DODDANINGAPPGOL
     @ KOTTALAGI,
     AGE: 49 YEARS, OCC: HOUSEHOLD WORK,
     R/O: KOTTALAGI, TAL: ATHANI,
     DIST: BELAGAVI - 591 265,
     NOW AT SHIVKRUPA NIVAS,
     ASHRAM ROAD, NEAR B L D E,
     VIJAYAPURA - 586 103.

5.   SHRI RAJSHEKAR
     S/O. SHIVAPPA DODDANINGAPPGOL
     @ KATTALAGI,
     AGE: 47 YEARS, OCC: ENGINEER,
     R/O: KOTTALAGI, TAL: ATHANI,
     DIST: BELAGAVI - 591 265,
     NOW AT SHIVKRUPA NIVAS,
     ASHRAM ROAD, NEAR B L D E,
     VIJAYAPURA - 586 103.

6.   SHRI VISHAL
     S/O. SHIVAPPA DODDANINGAPPGOL
     @ KATTALAGI,
     AGE: 39 YEARS, OCC: ENGINEER,
     R/O: KOTTALAGI, TAL: ATHANI,
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                                        NC: 2024:KHC-D:16541
                                    MFA No. 100656 of 2022




     DIST: BELAGAVI - 591 265,
     NOW AT SHIVKRUPA NIVAS,
     ASHRAM ROAD, NEAR B L D E,
     VIJAYAPURA - 586 103.

7.   SMT. CHENNAWWA
     W/O. NINGAPPA DODDANINGAPPGOL,
     AGE: 76 YEARS, OCC: HOUSEHOLD,
     R/O: KOTTALAGI, TAL: ATHANI,
     DIST: BELAGAVI - 591 265.

8.   SHRI PRABHU ARJUN KOTAYAL,
     AGE: 63 YEARS, OCC: AGRICULTURE,
     R/O: KOTTALAGI, TAL: ATHANI,
     DIST: BELAGAVI - 591 265.
                                             ...RESPONDENTS
(BY SRI ANAND R. KOLLI, ADVOCATE FOR R2 AND R8;
NOTICE ISSUED TO R1 TO R7 IS DISPENSED WITH)


      THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CODE OF CIVIL

PROCEDURE, 1908, PRAYING TO, CALL FOR RECORDS IN OS

NO.127/2021 PENDING ON THE FILE PRINCIPAL SENIOR CIVIL

JUDGE, ATHANI. TO SET-ASIDE THE ORDER ON I.A.1 FILED UNDER

ORDER 39 RULE 1 AND 2 CODE OF CIVIL PROCEDURE DATED

11.02.2022 PASSED IN O.S.NO.127/2021 PENDING ON THE FILE

PRINCIPAL SENIOR CIVIL JUDGE, ATHANI, BY ALLOWING THE

APPEAL, IN THE INTEREST OF JUSTICE AND EQUITY 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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                                                       NC: 2024:KHC-D:16541
                                                     MFA No. 100656 of 2022




                                    ORAL JUDGMENT

(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA)

The present appeal is filed by the plaintiff challenging the

order dated 11.02.2021 passed on IA.No.1 in OS.No.127/2021

by the Prl. Senior Civil Judge, Athani1.

2. The relevant facts leading to the present appeal are

that the appellants instituted a suit in OS.No.127/2021 for

partition and separate possession and the said suit is contested

by the defendants.

3. The appellant / plaintiff has filed IA.No.1 under

Order 39 rule 1 and 2 of the Code of Civil Procedure, 19082 to

restrain the defendants from alienating the suit item No.2

property i.e., Sy.No.173/2. The said application was objected

by defendant Nos.7 and 8. The Trial Court vide its order dated

11.02.2021 dismissed the said applications. Being aggrieved

the present appeal is filed.

Hereinafter referred as to "Trial Court"

Hereinafter referred as to "CPC"

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4. Heard submissions of learned counsel Sri. Vitthal S.

Teli, for the appellants and learned counsel Sri. Anand R. Kolli,

for respondent Nos.7 and 8. Perused the appeal papers.

5. This Court vide order dated 07.03.2022 passed the

following:

"There shall be an interim order directing the 8th respondent not to alienate R.S.No.173/2 measuring 12 acres situated at Kottalagi village, Athani taluk, until further orders."

6. It is forthcoming that the Trial Court while

considering IA.No.1 along with another application in IA.No.2

pertaining to another property bearing Sy.No.173/1 ordered as

follows:

"7. POINTS NO.1 TO 3 :- The plaintiffs have filed a suit for partition and separate possession of their 1/3rd share in the suit properties. Interalia the plaintiffs have filed IA Nos. 1 and 2 U/o.39 Rule 1 and 2 of CPC for the temporary injunction restraining the defendant No.7 from alienating the land bearing RS No.173/1 and stop the implementation of MR No.H31/2021-22. The defendants No.7 and 8 have appeared through their counsel and opposed IA Nos.1 and 2 by filing common objections. The defendants No.7 and 8 have contended that as per the decree passed in OS No.992/2021 one Guruling Arjun Kotyal became owner of the land bearing RS No.173/1. It is further contended that the defendants No.7 has sold land bearing RS No.173/2 to defendant No.8 under a registered sale deed dated 21-8-2021. The plaintiff has filed this suit on 29-9-2021. Therefore, it is clear that the defendant No.7 has already sold the land

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bearing RS No.173/2 measuring 12 acres infavour of defendant No.8 for a consideration of Rs.9,60,000/- under a registered sale deed dated 21-8-2021. The plaintiff has sought for the temporary injunction restraining the defendant No.7 from alienating the land bearing RS No.173/1 measuring 12 acres 10 guntas. The Revenue Authorities have already effected mutation as stated by the plaintiffs under MR No.H31/2021-22. Therefore, the plaintiffs are at liberty to approach the Revenue Authorities and challenge the same hence, the plaintiffs are not entitled for the temporary injunction as prayed in IA No.1.

The plaintiffs have contended that suit properties are ancestral joint family properties, but the defendants No.7 and 8 have contended that the lands bearing RS No.173/1 and 173/2 are the self acquired properties of the husband of defendant No.7. The contention of the defendants No.7 and 8 that the said lands are self acquired properties of the husband of defendant No.7 or joint family properties cannot be decided at this stage. This is a suit for partition, the defendant No.7 has already alienated the land bearing RS No.173/2 to the defendant No.8. If the temporary injunction is not granted on IA No.2, the defendant No.7 may alienate the land bearing RS No.173/1 to third parties and the same may lead to multiplicity of proceedings. Therefore, I am of the view that the plaintiffs are entitled for the temporary injunction as prayed in IA No.2."

(emphasis supplied)

7. It is forthcoming that the Trial Court noticed that

defendant No.7 has sold the property bearing RS.No.173/2

measuring 12 acres in favour of defendant No.8 under

registered Sale Deed dated 21.08.2021 for a sale consideration

of Rs.9,60,000/-. The Trial Court noticing the same has

observed that the plaintiffs are at liberty to approach the

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Revenue Authority to challenge the revenue entries and hence,

recorded a finding that the plaintiffs are entitled for a

temporary injunction as prayed for in IA.No.1.

8. It is vehement contention of learned counsel for the

appellant that defendant No.7 sold the property to defendant

No.8 who is her brother and the Trial Court having recorded a

finding regarding the prima facie case and balance of

conveyance with regard to IA.No.2 which pertains to

RS.No.173/1, which is the first item of the suit property and

have restrained defendant No.7 from alienating the said

property, the Trial Court erred in not granting the relief sought

for in IA.No.1.

9. Per contra, learned counsel for respondent Nos.7

and 8 justifies the order passed by the Trial Court and contends

that the Trial Court having refused to exercise its discretion

while considering IA.No.1, the said exercise of discretion ought

not to be interfered by this Court in the present appeal.

10. It is forthcoming that the property bearing

Sy.No.173/2 was belonging to defendant No.7 by virtue of the

same being inherited from her husband and the brothers of her

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husband are the plaintiff Nos.1 and 2 in the suit. Defendant

No.7 having already alienated the said RS.No.173/2 in favour of

her brother defendant No.8, the apprehension by the plaintiffs

are justified in seeking adequate relief vide IA.No.1. In the

event relief sought for in IA.No.1 is not granted and if

defendant No.8 further alienates the said RS.No.173/2 the

same will prejudice the rights of the appellants/ plaintiffs and

will also lead multiplicity of the proceedings.

11. In view of the aforementioned having regard to the

facts that the appellants / plaintiffs have demonstrated a prima

facie case insofar IA.No.1, and in view of the fact that this

Court vide order dated 07.03.2022 has granted the interim

order as noticed above, it is just and expedient that the

pending disposal of the suit, the said interim order dated

07.03.2022 granted by this Court in the present appeal be

continued and IA.No.1 ordered accordingly.

12. Learned counsel for respondent Nos.7 and 8 seeks

for a direction for expeditious disposal of the suit.

13. In view of the aforementioned the following:

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ORDER

i) The above appeal is allowed;

ii) The order dated 11.02.2021 passed on IA.No.1 in OS.No.127/2021 by the Prl. Senior Civil Judge, Athani, insofar as it pertains to rejecting of IA.No.1 is set aside;

iii) IA.No.1 filed in OS.No.127/2021 on the file of the Prl. Senior Civil Judge, Athani, is allowed and respondent Nos.7 and 8 are restrained by an order of injunction from alienating the property bearing RS.No.173/2 measuring 12 acres situated at Kottalagi Village, Athani Taluk, (suit item No.2 property) until disposal of the suit;