[Cites 3, Cited by 0]
Karnataka High Court
Shripatrao vs Rekha And Ors on 29 January, 2026
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MFA No. 201643 of 2023
C/W MFA No. 204268 of 2023
MFA No. 204390 of 2023
HC-KAR
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF JANUARY, 2026
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
MISCL. FIRST APPEAL NO. 201643 OF 2023 (CPC)
C/W
MISCL. FIRST APPEAL NO. 204268 OF 2023
MISCL. FIRST APPEAL NO. 204390 OF 2023
IN MFA No. 201643/2023:
BETWEEN:
SHRIPATRAO S/O MARUTIRAO DHOLE,
AGE:81 YEARS, OCC: LEGAL PROFESSION AND
AGRICULTURE,
R/O. NO. 30-334 BIRADAR COLONY,
COURT ROAD, BASAVAKALYAN,
DIST. BIDAR-585327.
Digitally signed
by LUCYGRACE ...APPELLANT
Location: HIGH
COURT OF (BY SRI. SACHIN M. MAHAJAN, ADVOCATE)
KARNATAKA
AND:
1. SMT. REKHA D/O SRIPATRAO DHOLE,
W/O BANKAT PATIL,
AGE: 46 YEARS, OCC: HOUSEHOLD WORK,
C/O. BANKAT PATIL,
SHRI YESH ENGINEERING COLLEGE,
GUT NO. 258(P) SATARA PARISAR,
BHEED BY PASS ROAD,
NEAR SRPF CAMP,
CHATRAPATI SAMBHAJI NAGAR- 431010.
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MFA No. 201643 of 2023
C/W MFA No. 204268 of 2023
MFA No. 204390 of 2023
HC-KAR
2. SMT. KANCHAN @ SHINDHU
D/O SRIPATRAO DHOLE
W/O LATE LAXMAN HIPPARKAR,
AGE: 55 YEARS, OCC: HOUSEHOLD WORK,
R/O H.NO. 12347/3 AND 4, BIRADAR COLONY,
BASAVAKALYAN, DIST. BIDAR-585327.
3. SMT. SUNITA D/O SRIPATRAO DHOLE
W/O VILASRAO MORE, ADVOCATE,
AGE: 59 YEARS, OCC: HOUSEHOLD WORK,
R/O SAFALYA HOUSE, NANDI COLONY,
K.E.B. ROAD, BIDAR- 585401.
4. SMT. VIDHYA D/O SRIPATRAO DHOLE,
W/O PANDITRAO CHOUHAN,
AGE: 62 YEARS, OCC: HOUSEHOLD WORK,
R/O GALAXY APARTMENT,
WONDER CITY, KATRAJ,
PUNE-411046.
5. SMT. INDU D/O SRIPATRAO DHOLE
W/O PRATAP HANDRALE,
AGE: 56 YEARS, OCC: HOUSEHOLD WORK,
R/O FLAT NO. 503, CLOUD 9 SOCIETY
BEHIND CHANUKYAPURI, SHAHNOORWADI,
CHATRAPATI SAMBHAJI NAGAR- 431001.
6. SMT. AMBIKA D/O SHRIPATRAO DHOLE,
W/O NANDKUMAR RAWABAWALE,
AGE: 37 YEARS, OCC:HOUSEHOLD WORK,
R/O H.NO. 30-344, BIRADAR COLONY,
COURT ROAD, BASAVAKALYAN,
DIST. BIDAR-585327.
7. NANDKUMAR S/O ANNARAO RAWABAWALE,
AGE: 47 YEARS,
OCC: SERVICE AND AGRICULTURE,
COURT ROAD, BASAVAKALYAN,
DIST. BIDAR-585327.
...RESPONDENTS
(BY SRI RAVI B. PATIL, ADVOCATE FOR R1;
SRI HARSHAVARDHAN R. MALIPATIL, ADVOCATE FOR R4;
R3, R5, R6 AND R7 ARE SERVED)
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MFA No. 201643 of 2023
C/W MFA No. 204268 of 2023
MFA No. 204390 of 2023
HC-KAR
THIS MFA IS FILED UNDER ORDER XLIII RULE 1 (S) OF
THE CODE OF CIVIL PROCEDURE, PRAYING TO SET-ASIDE
THE IMPUGNED ORDER DATED 09.03.2023 PASSED BY THE
LEARNED SENIOR CIVIL JUDGE AND JMFC AT BASAVAKALYAN,
IN O.S NO.138/2022, ON I.A. NO.1 AND CONSEQUENTLY
DISMISS THE I.A. NO.1 FILED BY THE
PLAINTIFFS/RESPONDENT NO. 1 TO 3, BY ALLOWING THE
APPEAL WITH COSTS.
IN MFA NO. 204268/2023:
BETWEEN:
SHRIPATRAO S/O MARUTIRAO DHOLE,
AGE: 81 YEARS, OCC: LEGAL PROFESSION AND
AGRICULTURE,
R/O NO.30-344, BIRADAR COLONY, COURT ROAD,
BASAVAKALAYAN, DIST.BIDAR-585327.
...APPELLANT
(BY SRI. SACHIN M. MAHAJAN, ADVOCATE)
AND:
1. SMT. REKHA D/O SRIPATRAO DHOLE,
W/O BANKAT PATIL,
AGE: 48 YEARS, OCC: HOUSEHOLD WORK,
C/O BANKAT PATIL,
SHRI YESH ENGINEERING COLLEGE, AURANGABAD,
NOW R/ AT GUT NO. 258 (P) SATARA PARISAR,
BHEED BYPASS ROAD, NEAR SRPF CAMP,
CHATRAPATI SAMBHAJI NAGAR-431010.
2. SMT. KANCHAN @ SINDHU
D/O SHRIPATRAO DHOLE,
W/O LATE LAXMAN HIPPARKAR,
AGE: 54 YEARS, OCC: HOUSEHOLD WORK,
R/O H NO. 123447/3 AND 4, BIRADAR COLONY,
BASAVAKALAYAN, DIST.BIDAR-585327.
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MFA No. 201643 of 2023
C/W MFA No. 204268 of 2023
MFA No. 204390 of 2023
HC-KAR
3. SMT.SUNITA D/O SHRIPATRAO DHOLE,
W/O VILASRAO MORE, ADVOCATE,
AGE: 58 YEARS, OCC: HOUSEHOLD WORK,
R/O SAFALYA HOUSE, NANDI COLONY, KEB ROAD
BIDAR-585401.
4. SMT. VIDHYA D/O SHRIPATRAO DHOLE,
W/O PANDITARAO CHOUHAN,
AGE: 62 YEARS, OCC:HOUSEHOLD WORK,
R/O GALAXY APRTMENT, WONDER CITY,
KATRAJ PUNE-411046.
5. SMT. INDU D/O SHRIPATRAO DHULE,
W/O PRATAP HANDRALE,
AGE: 57 YEARS, OCC: HOUSEHOLD WORK,
R/O FLAT NO. 503, CLOUD 9 SOCIETY BEHIND
CHANUKYAPURI SHANOORWADI CHATRAPATI
SAMBHAJI NAGAR-431001,
AURANGBAD-431001.
6. SMT. AMBIKA D/O SHRIPATRAO DHOLE,
W/O NANDKUMAR RAWABAWALE,
AGE: 38 YEARS, OCC: HOUSEHOLD WORK,
R/O NO. 30-344, BIRADAR COLONY, COURT ROAD,
BASVAKALYAN DIST. BIDAR- 585327.
7. NANDKUMAR S/O ANNARAO RAWABAWALE,
AGE: 48 YEARS, OCC: SERVICE AND AGRICULTURE,
R/O NO. 30-344, BIRADAR COLONY, COURT ROAD
BASAVAKALAYAN DIST. BIDAR- 585 327.
...RESPONDENTS
(BY SRI RAVI B. PATIL, ADVOCATE FOR C/R3;
SRI HARSHAVARDHAN R. MALIPATIL, ADVOCATE FOR R4)
THIS MFA IS FILED UNDER ORDER 43(1) OF CPC
PRAYING TO SET-ASIDE THE IMPUGNED ORDER DATED
09-03-2023 PASSED BY THE LEARNED SENIOR CIVIL
JUDGE AND JMFC AT BASAVAKALYAN, IN O.S. NO.
138/2022, ON I.A. NO. 4 AND CONSEQUENTLY ALLOW THE
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MFA No. 201643 of 2023
C/W MFA No. 204268 of 2023
MFA No. 204390 of 2023
HC-KAR
I.A. NO. 4 FILED BY THE APPELLANT/DEFENDANT NO. 4, BY
ALLOWING THE APPEAL WITH COSTS.
IN MFA NO. 204390/2023:
BETWEEN:
1. SMT. REKHA D/O SRIPATHRAO DHOLE,
W/O BANKAT PATIL,
AGED ABOUT 46 YEARS,
OCC: HOUSEHOLD AND AGRICULTURE,
R/O TALBHOG, TQ. BASAVAKALYAN,
DIST. BIDAR-585 401.
2. SMT. KANCHAN @ SHINDU
D/O SRIPATHRAO DHOLE,
W/O LAXMAN HIPPARKAR,
AGED ABOUT 46 YEARS,
OCC: HOUSEHOLD AND AGRICULTURE,
R/O TALBHOG, TQ. BASAVAKALYAN,
DIST. BIDAR-585401,
PRESENTLY R/ AT H NO. 30-344, BIRADAR COLONY,
BASAVAKALYAN, DIST. BIDAR-585401.
3. SMT. SUNITA D/O SRIPATHRAO DHOLE,
W/O VILAS RAO MORE,
AGED ABOUT 59 YEARS,
OCC: HOUSEHOLD AND AGRICULTURE,
R/O TALBHOG, TQ. BASAVAKALYAN,
DIST. BIDAR,
NOW AT NANDI COLONY, KEB ROAD, BIDAR-585401.
...APPELLANTS
(BY SRI. RAVI B. PATIL, ADVOCATE)
AND:
1. SRIPATHRAO S/O LATE MARUTIRAO DHOLE,
AGED ABOUT 81 YEARS
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MFA No. 201643 of 2023
C/W MFA No. 204268 of 2023
MFA No. 204390 of 2023
HC-KAR
OCC: AGRICULTURE AND ADVOCACY,
R/O NO. 30-344, BIRADAR COLONY,
BASAVAKALYAN,DIST. BIDAR-585401.
2. SMT. VIDHYA D/O SRIPATHRAO DHOLE,
W/O PANDITHRAO CHAUHAN,
AGED ABOUT 63 YEARS,
OCC: AGRICULTURE AND ADVOCACY,
R/O TALBHOG, TQ. BASAVAKALYAN,
DIST. BIDAR-585401,
PRESENTLY R/ AT CHAUHAN PLAZA, MAIN ROAD
OMERGA MS, TQ. OMERGA, DIST. LATUR -MS-413606.
3. SMT. INDU D/O SRIPATHRAO DHOLE,
W/O PRATAP HANDALE,
AGED ABOUT 58 YEARS,
OCC: HOUSEHOLD AND AGRICULTURE,
R/O CHANDIKAPUR,
TQ. BASAVAKALYAN, DIST. BIDAR-585401.
4. SMT. AMBIKA D/O SRIPATHRAO DHOLE,
W/O NANDKUMAR RAOBAWALE,
AGED ABOUT 37 YEARS, OCC: HOUSEHOLD,
R/O LAKANGAON, TQ. BHALKI, DIST. BIDAR-585401.
5. NANDKUMAR S/O ANNARAO RAOBAWALE,
AGE: MAJOR, OCC: LECTURER,
AT MAHATMA BASAVESHWAR ENGINEERING COLLEGE,
NEAR YESHWANTHRAO CHOWK,
AMBEJOGAI, TQ. AND DIST. LATUR-MS-413531
...RESPONDENTS
(BY SRI SACHIN M. MAHAJAN, ADVOCATE FOR R1;
SRI HARSHAVARDHAN R. MALIPATIL, ADVOCATE FOR R2;
V/O DTD.29.01.2026 NOTICE TO R3 IS DISPENSED WITH)
THIS MFA IS FILED UNDER ORDER XXXXIII RULE 1(r)
OF THE CPC PRAYING TO A) SET ASIDE THE IMPUGNED
ORDER DATED 09.03.2023 PARTLY ALLOWING
APPLICATION ON I.A NO. II INSOFAR AS RELATES TO
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MFA No. 201643 of 2023
C/W MFA No. 204268 of 2023
MFA No. 204390 of 2023
HC-KAR
REJECTION OF APPLICATION AS AGAINST DEFENDANT NO.
1 AND 4 PREFERRED BY THE APPELLANTS/PLAINTIFFS
UNDER ORDER XXXIX RULE 1 AND 2 OF CODE OF CIVIL
PROCEDURE IN OS NO.138/2022 ON THE FILE OF SENIOR
CIVIL JUDGE AND JMFC AT BASAVAKALYAN. B) PASS AN
ORDER AS TO COSTS OF THE PRESENT APPEAL C) PASS
SUCH OTHER ORDER/S AS THIS HON'BLE COURT DEEMS
FIT TO GRANT IN THE CIRCUMSTANCES OF THE CASE.
THESE APPEALS, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH
ORAL JUDGMENT
1. These appeals are arising out of the Order dated
09.03.2023 passed on I.A.Nos.1, 2 and 4 in
O.S.No.138/2022 on the file of Senior Civil Judge and JMFC
Court, Basavakalyan (for sort 'the Trial Court').
2. For the sake of convenience, the parties will be
referred to as per their ranking before the Trial Court.
3. The relevant facts for adjudication of these
appeals are that the plaintiffs have preferred
O.S.No.138/2022 against the defendants seeking relief of
partition and separate possession in respect of the suit
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HC-KAR
schedule properties. Defendant No.1 is the father of the
plaintiffs.
4. The plaintiffs have preferred I.A.No.1 under order
39 Rule 1 and 2 of CPC, seeking interim measure, restraining
the defendants not to alienate the suit schedule properties.
The said application came to be allowed by the Trial Court by
the impugned order dated 09.03.2023 and being aggrieved
by the same, defendant No.1 has preferred MFA
No.201643/2023.
5. The Defendant No.1 has filed I.A.No.4 seeking
interim measure restraining the plaintiff Nos.1, 2 and 3 and
defendant Nos.2,3,4 and 5 from interfering with the suit
schedule properties and the said application came to be
dismissed by the Trial Court and being aggrieved by the
same, the defendant No.1 has preferred MFA
No.204268/2023.
6. Plaintiffs have filed I.A.No.2 under Order 39 Rule
1 and 2 read with Section 151 of CPC to restrain the
defendant No.5 from interfering with the suit schedule
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HC-KAR
properties and the said application came to be partly allowed
by the Trial Court and being aggrieved by the same, the
plaintiffs have preferred MFA No.204390/2023.
7. Heard Sri. Sachin M. Mahajan, learned counsel
appearing for the defendant No.1, Sri. Ravi B. Patil, learned
counsel appearing for the plaintiffs and Sri. Harshavardhan
R.Malipatil, learned counsel for the defendant No.4.
8. Sri. Sachin M. Mahajan, learned counsel
appearing for the defendant No.1 contended that, the Trial
Court has erred in allowing I.A.Nos.1 and 2 filed by the
plaintiffs seeking relief of interim injunction against the
defendants, not to interfere with the suit schedule properties
by the defendants as well as restraining the defendants from
alienating the suit schedule properties. It is contended by the
learned counsel for the defendant No.1 that, the Trial Court
in the impugned order solely based on the Judgment of this
Court in the case of Smt. Shakunthalamma and others
Vs. Smt. Kanthamma and others, reported in 2014 4
KCCR 3113 allowed the applications and further contended
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that, the finding recorded by the Trial Court particularly with
respect to paragraph No.38, requires to be interfered with as
the Trial Court has not properly appreciated the material on
record as to the fact that, the defendant No.1 being the
Kartha of the joint family of the plaintiffs and the defendant
No.1, ought to have taken certain steps including to maintain
and to take care of the affairs of the land in question and the
said aspect of the matter was not properly appreciated by
the Trial Court and as such, it is argued that the Trial Court
erroneously allowed I.A.Nos.1 and 2 which requires to be
interfered with in these appeals.
9. It is also contended by the learned counsel
appearing for the defendant No.1, by referring to the
Judgment of Hon'ble Supreme Court in the case of Sunil
Kumar and another Vs. Ram Parkash and others,
reported in AIR 1988 SC 576, and contended that, the
defendant No.1 being the Kartha of the joint family intends
to take care of the affairs of the property for legal necessity
and in that event, there is a impediment for the defendant
No.1 to deal with the properties who is residing in the village
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and taking care of the affairs of the land in question, and
accordingly, sought for interference of this Court.
10. Per contra, Sri. Ravi B. Patil, learned counsel
appearing for the plaintiffs contended that, there was a
earlier partition between the parties as to the suit schedule
properties is concerned, and the said aspect has been
admitted by the defendant No.1 and therefore, the Trial
Court has rightly allowed I.A.Nos.1 and 2 which do not
requires interference by this Court.
11. Insofar as allowing of I.A.No.2 in-part filed by the
plaintiffs is concerned, Sri. Ravi B. Patil, learned counsel has
argued that, the Trial Court has allowed I.A.No.2 partly only
against defendant No.5 without appreciating the specific
averments made in the written statement of defendant No.1
that, more specifically the land bearing Survey No.5,
measuring 4 acres standing in the name of the plaintiffs for
more than 20 years and therefore, sought for interference of
this Court.
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12. Sri. Harshavardhan R. Malipatil, learned counsel
appearing for the defendant No.4 sought to justify the
impugned order passed by the Trial Court on I.A.No.4.
13. In the light of the submissions made by the
learned counsels for the parties, it is not in dispute that the
plaintiffs are the children of defendant No.1. The suit in
O.S.No.138/2022 is filed seeking relief of partition and
separate possession in respect of the suit schedule
properties. Undisputably, the plaintiffs as well as the
defendants have construed the fact that, the suit schedule
properties are the joint family properties, in the application.
In the backdrop of these aspects, since the plaintiffs have
taken a plea as to the prior partition in the joint family and
the said aspect has been considered in the written statement
filed by the defendant No.1 and therefore, I am of the view
that, the Trial Court has rightly allowed I.A.Nos.1 and 2 filed
by the plaintiffs, restraining the defendants from alienating
the suit schedule properties as well as not to interfere with
the suit schedule properties till the conclusion of the
proceedings are concerned. It is also to be noted that, in a
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suit for partition, the daughters or the sons of the propositus
are having share in the suit schedule properties and in that
view of the matter, the impugned order passed by the Trial
Court on I.A.Nos.1 and 2 is just and proper and no
interference is called for in these appeals.
14. Though, Sri. Sachin M. Mahajan, learned counsel
appearing for defendant No.1 refers to the Judgment of the
Full Bench of this Court in the case of Smt.
Shakunthalamma and the Judgment of Hon'ble Supreme
Court in the case of Sunil Kumar (referred supra), however,
the Trial Court having taken note of the factual aspects on
record as to the fact that the suit is one for partition and
separate possession in respect of the suit schedule property
and in that view of the matter, the contention raised by the
learned counsel for the defendant No.1 cannot be accepted.
15. Insofar as the impugned order passed by the Trial
Court on I.A.No.4, dismissing the application filed by the
defendant No.1 under Order 39 Rule 1 and 2 of CPC is
concerned, wherein, the said application was filed by the
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defendant No.1 restraining the plaintiff Nos.1, 2, 3 and
defendant Nos.2, 3, 4 and 5 from interfering and obstructing
their lawful possession and enjoyment of the defendant No.1
in respect of suit schedule property-B at Sl.No.3 i.e. house
and shop properties, till disposal of the suit. In this regard,
on careful consideration of the finding recorded by the Trial
Court at paragraph Nos.35 to 37 makes it clear that, the suit
schedule-B properties at Sl.No.3 i.e. house and shop
properties are the ancestral properties and also the shop
properties are construed as coparceners properties and in
that view of the matter, taking into consideration as the Trial
Court has arrived at a conclusion that the adjudication of the
suit requires to determine the rights of the parties, I am of
the view that, no interference is called for insofar as
dismissing I.A.No.4 filed by the defendant No.1 as per the
impugned order produced at Annexure-A to the appeal.
16. In that view of the matter, I am of the view that,
no interference is called for in these appeals and accordingly,
the impugned order passed by the Trial Court on I.A.Nos.1, 2
and 4 requires to be confirmed.
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17. Taking into consideration the arguments
advanced by the learned counsels appearing for the parties,
the Trial Court is requested to expedite early hearing for
resolution of the dispute.
18. Ordered accordingly.
Sd/-
(E.S.INDIRESH)
JUDGE
SVH
List No.: 1 Sl No.: 7
CT:PK
