Karnataka High Court
Jemsy Ponnappa vs G S Jyothi on 28 November, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:48866
MFA No. 5248 of 2023
C/W MFA No. 5247 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO.5248 OF 2023 (CPC)
C/W
MISCELLANEOUS FIRST APPEAL NO.5247 OF 2023 (CPC)
IN MFA No.5248/2023:
BETWEEN:
1. JEMSY PONNAPPA,
S/O. LATE POONACHA,
AGED ABOUT 72 YEARS,
R/AT 4TH BLOCK, NO.25/2,
BYPASS ROAD,
KUSHALNAGAR TALUK,
KODAGU DISTRICT- 571234.
...APPELLANT
(BY SRI. KARUMBAIAH T.A., ADVOCATE)
Digitally signed
by DEVIKA M AND:
Location: HIGH
COURT OF 1. G.S. JYOTHI,
KARNATAKA AGED ABOUT 35 YEARS,
D/O LATE G.K.SRINIVAS
W/O. SRI. SABASTIAN JOY,
R/AT GUMMANAKOLLY VILLAGE,
KUSHALNAGAR HOBLI, SOMWARPET,
KODAGU DISTRICT-571234.
2. G.S. SARASWATHI,
D/O. LATE G.K. SRINIVAS,
AGED ABOUT 42 YEARS,
R/AT PUMP HOUSE,
PALALLI VILLAGE,
SRIRANGAPATNA HOBLI,
MANDYA DISTRICT 571136.
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3. CHANDRAKALA,
W/O LATE G.K.RAVINDRA,
AGED ABOUT 58 YEARS,
R/AT GUMMANAKOLLY VILLAGE,
KUSHALNAGAR HOBLI, SOMWARPET,
KODAGU DISTRICT-571234.
4. POORNACHANDRA,
S/O LATE G.K. RAVINDRA,
AGED ABOUT 31 YEARS,
R/AT GUMMANAKOLLY VILLAGE,
KUSHALNAGAR HOBLI, SOMWARPET,
KODAGU DISTRICT-571234.
5. GAGANCHANDRA,
S/O. LATE G.K. RAVINDRA,
AGED ABOUT 26 YEARS,
R/AT GUMMANAKOLLY VILLAGE,
KUSHALNAGAR HOBLI, SOMWARPET,
KODAGU DISTRICT-571234.
6. G.K. NINGARAJU,
S/O LATE KARIYAPPA,
AGED ABOUT 56 YEARS,
R/AT GUMMANAKOLLY VILLAGE,
KUSHALNAGAR HOBLI,
SOMWARPET TALUK,
KODAGU DISTRICT.
7. SHESHAMMA,
W/O. LATE G.K. SRINIVAS,
AGED ABOUT 62 YEARS,
R/AT GUMMANAKOLLY VILLAGE,
KUSHALNAGAR HOBLI,
SOMWARPET TALUK,
KODAGU DISTRICT.
8. U.M. LAXAMANA,
S/O. UNNI MODALIYAR,
AGED ABOUT 68 YEARS,
LAND DEVELOPER AND BUSINESSMAN,
CHIKKANNA EXTENSION,
III BLOCK, KUSHALNAGAR.
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9. L. SANTHOSH,
S/O. U.M. LAXMANA,
AGED ABOUT 40 YEARS,
CHIKKANNA EXTENSION,
III BLOCK, KUSHALNAGAR.
10. L. SAVITHRI,
W/O. U.M.LAXMANA,
AGED ABOUT 59 YEARS,
CHIKKANNA EXTENSION,
III BLOCK, KUSHALNAGAR.
11. RAJEEV,
S/O B.S. RADHAKRISHNA,
AGED ABOUT 49 YEARS,
NEAR SRI ANJANEYA SWAMY TEMPLE,
III BLOCK, KUSHALNAGAR.
12. L. KUMARA,
S/O LINGAPPA,
AGED ABOUT 42 YEARS,
NO.302/1,
LAXMI VENKATESHWARA NILAYA,
GUMMONAKOLLY, KUSHALNAGAR.
13. H.M. BASAVARAJ,
S/O LATE H.B.MANJAIAH,
AGED ABOUT 61 YEARS,
CANARA BANK, MADIKERI TOWN,
KODAGU DISTRICT.
14. H.D. SUBRAMANYA,
S/O DEVAPPA GOWDA,
AGED ABOUT 63 YEARS,
DARSHAN NILAYA, 2ND CROSS,
VISHWESHWARAIAH ROAD,
SALAGAME ROAD, HASSAN TOWN.
15. NASEEM AJAJ,
W/O S.S. AJAJ AHAMED,
AGED ABOUT 45 YEARS,
C/O U.M.LAXMANA,
CHIKKANNA LAYOUT,
III BLOCK, KUSHALNAGAR.
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MFA No. 5248 of 2023
C/W MFA No. 5247 of 2023
16. J.R. LAVAKUMAR,
S/O K M MACHAIAH,
AGED ABOUT 38 YEARS,
HOUSE NO.239,
BEHIND G.P.M. SCHOOL,
GUMMANNAKOLLY,
KUSHALNAGAR,
SOMWARPET TALUK,
17. J.R. CHETHAN,
S/O K.M. MACHAIAH
AGED ABOUT 36 YEARS
HOUSE NO.239,
BEHIND G P M SCHOOL
GUMMANNAKOLY,
KUSHALNAGAR,
SOMWARPET TALUK.
18. YUSEN KREMER,
S/O R.A. DAVID,
AGED ABOUT 57 YEARS,
NO.26, MISSION HOSPITAL,
QUARTERS, R.C.ROAD,
HASSAN DISTRICT
19. KAVERAMMA,
W/O K.B. RAMAIAH,
AGED ABOUT 74 YEARS
LINGAPURA VILLAGE,
MUTHUR POST,
PERIYAPATNA TALUK,
MYSORE DISTRICT.
20. M. KUSHALAPPA,
S/O MACHAIAH,
AGED ABOUT 59 YEARS,
BILIGERI VILLAGE,
SOMWARPET TALUK.
21. N.P. VEDHAVATHI,
W/O S.M.CHANDRASHEKAR,
AGED ABOUT 42 YEARS,
KATAGERI VILLAGE,
MADIKERI TALUK.
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22. V. MAHADEVAIAH,
S/O VEERAPPA,
AGED ABOUT 70 YEARS,
NEELAVADI VILLAGE
PERIYAPATNA TALUK,
MYSORE DISTRICT.
23. K.M. RUKIYA,
W/O ISMAIL,
AGED ABOUT 49 YEARS,
INDIRA NAGAR,
THALATH MANE POST,
MADIKERI TALUK.
24. S.C. RAJESWARI,
W/O KUMAR,
AGED ABOUT 45 YEARS,
BEHIND GMP SCHOOL,
GUMMANAKOLLY VILLAGE,
KUSHALNAGAR,
SOMWARPET TALUK.
25. K.C. KALAVATHI,
W/O K.M. CHUNDAIAH,
AGED ABOUT 41 YEARS,
AVANDURU VILLAGE AND POST,
MADIKERI TALUK.
26. H.B. MURTHY,
S/O H.M. BASAVE GOWDA,
AGED ABOUT 56 YEARS,
NANJARAYAPATNA VILLAGE,
KUSHALNAGAR HOBLI,
SOMWARPET TALUK.
27. K.B. NINGAPPA,
S/O K.N.BIDAPPA,
AGED ABOUT 61 YEARS,
MORIKALLU BASAVANALLI VILLAGE,
SOMWARPET HOBLI AND TALUK.
28. C.B. SAMPATHKUMAR
S/O LATE C.K.BHIMAIAH
AGED ABOUT 58 YEARS
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C/W MFA No. 5247 of 2023
MUKKODLU VILLAGE,
MAKKNADUR POST,
MADIKERI TALUK.
29. N.S. GEETHA
W/O S.B.SHIVARAM
AGED ABOUT 45 YEARS
MARUTHI EXTENSION,
MULLUSOGE VILLAGE.
KUSHALNAGAR,
MADIKERI TALUK.
30. SHASHIKANTH SETH
S/O SUBRAYA SETH
AGED ABOUT 51 YEARS
ADHI SHANKARACHARYA EXTENSION
IV BLOCK, KUSHALNAGAR.
31. B.P. SAVITHA
W/O S.S. SHIVAKUMAR
AGED ABOUT 42 YEARS
BEHIND GPM SCHOOL
GUMMANAKOLLY,
KUSHALNAGAR,
SOMWARPET TALUK.
32. H.B.NAGESH,
S/O BHOMME GOWDA
AGED ABOUT 56 YEARS
HASSE VILLAGE,
ECHALAGUDU POST
YASLOOR HOBLI,
SAKLESHPUR TALUK
HASSAN DISTRICT.
33. H.P.SOMASHEKARA
S/O PAPACHAR
AGED ABOUT 43 YEARS
HOSANAGARA VILLAGE,
KADANUR POST,
KONANUR HOBLI
ARKALGUDU TALUK,
HASSAN DISTRICT.
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34. H.K.PUTTARAJU
S/O KRISHNE GOWDA
AGED ABOUT 44 YEARS
HOSANAGARA VILLAGE,
KADANUR POST
KONANURU HOBLI,
ARAKALAGODU TALUK
HASSAN DISTRICT
35. PATRICK JOSEPH
S/O MARI JOSEPH
AGED ABOUT 58 YEARS
NISARGA LAYOUT,
KUDLUR VILLAGE,
KUSHALNAGA,
SOMWARPET TALUK
36. B.R.JANARDHANA
S/O RAMAIAH
AGED ABOUT 57 YEARS
NISARGA LAYOUT
KUDLUR VILLAGE
KUSHALNAGAR
SOMWARPET TALUK
37. M.K. MOHAN
S/O APPU KRISHNA
AGED ABOUT 60 YEARS
NISARGA LAYOUT
KUDLUR VILLAGE
KUSHALNAGAR
SOMWARPET TALUK.
38. M.U. SWARNALATHA
W/O M.A. UKRAPPA
AGED ABOUT 48 YEARS
NISARGA LAYOUT
KUDLUR VILLAGE
KUSHALNAGAR
SOMWARPET TALUK
39. B.D. INDRANI
W/O DAYANANDA
AGED ABOUT 45 YEARS
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KAVERI BADAVANE
KUDIGE ROAD
GUMMANAKOLLI VILLAGE
KUSHALNAGARA
SOMWARPET TALUK.
40. B.B. DINESH
S/O BELLIYAPPA
AGED ABOUT 62 YEARS
KAVERI BADAVANE
KUDIGE ROAD
GUMMANAKOLLI VILLAGE
KUSHALNAGARA
SOMWARPET TALUK
41. PRATHIBHA P.K.
W/O D.B. DINESH
AGED ABOUT 56 YEARS
KAVERI BADAVANE
KUDIGE ROAD
GUMMANAKOLLI VILLAGE
KUSHALNAGARA
SOMWARPET TALUK
42. K.K. RADHA
W/O BABU
AGED ABOUT 53 YEARS
KAVERI BADAVANE
KUDIGE ROAD
GUMMANAKOLLI VILLAGE
KUSHALNAGARA
SOMWARPET TALUK
43. BAYAVANDA B. CHINNAPPA
S/O BOPAIAH
AGED ABOUT 66 YEARS
KAVERI BADAVANE
KUDIGE ROAD
GUMMANAKOLLI VILLAGE
KUSHALNAGARA
SOMWARPET TALUK
44. M.M. MOHAMMED RAFI
S/O M.M. MUTHALI
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C/W MFA No. 5247 of 2023
AGED ABOUT 60 YEARS
KAVERI BADAVANE
KUDIGE ROAD
GUMMANAKOLLI VILLAGE
KUSHALNAGARA
SOMWARPET TALUK
45. CHANDRAMMA
W/O M.N. NAGARAJ
AGED ABOUT 53 YEARS
KAVERI BADAVANE,
KUDIGE ROAD
GUMMANAKOLLI VILLAGE
KUSHALANAGARA
SOMWARPET TALUK
46. D.K. RAMAIAH
S/O D.B. KARUMABAIAH
AGED ABOUT 63 YEARS
KAVERI BADAVANE,
KUDIGE ROAD
GUMMANAKOLLI VILLAGE
KUSHALANAGARA
SOMWARPET TALUK
47. B.M. INDIRA
D/O B.S. MAHENDRA
AGED ABOUT 49 YEARS
KAVERI BADAVANE,
KUDIGE ROAD
GUMMANAKOLLI VILLAGE
KUSHALANAGARA
SOMWARPET TALUK
48. P.K. DAMAYANTHI
W/O G.K. BOPAIAH,
AGED ABOUT 52 YEARS,
KAVERI BADAVANE,
KUDIGE ROAD
GUMMANAKOLLI VILLAGE
KUSHALANAGARA
SOMWARPET TALUK
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49. K.A. NANAIAH
S/O K.K. ACHAIAH,
AGED ABOUT 61 YEARS,
KAVERI BADAVANE,
KUDIGE ROAD
GUMMANAKOLLI VILLAGE
KUSHALANAGARA
SOMWARPET TALUK
50. P.S. BALAKRISHNA
S/O SUBBAPPA,
AGED ABOUT 58 YEARS,
KAVERI BADAVANE,
KUDIGE ROAD
GUMMANAKOLLI VILLAGE
KUSHALANAGARA
SOMWARPET TALUK
51. B. GOPAL
S/O K.C. BOPAIAH,
AGED ABOUT 63 YEARS,
KAVERI BADAVANE,
KUDIGE ROAD
GUMMANAKOLLI VILLAGE
KUSHALANAGARA
SOMWARPET TALUK
52. SEETHAMMA
D/O KARIAPPA
W/O KRISHNE GOWDA
AGED ABOUT 70 YEARS
CHAPPARADAHALLI VILLAGE
HARNALLI HOBLI
PERIYAPATNA TALUK
MYSORE DISTRICT.
53. SAROJAMMA
D/O KARIYAPPA
C/O G.K.RAVINDRA
AGED ABOUT 68 YEARS
GUMMANAKOLLY VILLAGE
MULLUSOGE, KUSHALNAGAR
SOMWARPET TALUK
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54. NAGAMMA
D/O KARIYAPPA
C/O MAHESH GOWDA
AGED ABOUT 65 YEARS
RAKESH NILAYA
MULLALI ROAD
BAEGADDI
SAKALESPURA TALUK
55. SHARIF IBRAHIM
S/O IBRAHIM
AGED ABOUT 41 YEARS
GUMMANAKOLLI VILLAGE
KUSHALNAGAR HOBLI
SOMWARPET TALUK
56. NASRIN AYAZ
W/O S.S. AYAZ AHMED
AGED ABOUT 38 YEARS
MARUTHI EXTENSION
GUMMANAKOLLI VILLAGE
KUSHALANGAR
SOMWARPET TALUK
57. K.B. POORNAIAH
S/O K.B.BALAKRISHNA
AGED ABOUT 41 YEARS
AVANDURU VILLAGE
BADAMANDALA HOBLI
MADIKERI TALUK
58. SAROJAMMA
W/O LATE BASAVARAJ
AGED ABOUT 57 YEARS
KUDIGE ROAD
KUDLUR VILLAGE
KUSHALNAGAR
SOMWARPET TALUK
KODAGU DISTRICT.
59. JAI RAJ V.B.
S/O LATE BASAVARAJU
AGED ABOUT 35 YEARS
KUDIGE ROAD
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KUDLUR VILLAGE
KUSHALNAGAR
SOMWARPET TALUK
KODAGU DISTRICT
60. SHRENI V.B.
D/O LATE BASAVARAJU
AGED ABOUT 38 YEARS
KUDIGE ROAD
KUDLUR VILLAGE
KUSHALNAGAR
SOMWARPET TALUK
KODAGU DISTRICT
61. SWATHI V.B.
D/O LATE BASAVARAJU
AGED ABOUT 38 YEARS
KUDIGE ROAD
KUDLUR VILLAGE
KUSHALNAGAR
SOMWARPET TALUK
KODAGU DISTRICT.
62. SAVITHRI
W/O KEERTHI KUMAR
AREHALLI ROAD
KURUHINASHETTY VATARA
SAKALESHPURA TALUK
HASSAN DISTRICT
...RESPONDENTS
(VIDE ORDER DATED 29.08.2023,
NOTICE TO R3 TO R62 IS DISPENSED WITH;
R1 AND R2 ARE SERVED AND UNREPRESENTED)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) R/W
SECTION 151 OF CPC, AGAINST THE ORDER DATED 02.01.2023
PASSED ON I.A.NO.VII IN O.S.NO.56/2018 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND JMFC, SOMWARPET, PARTLY
ALLOWING THE I.A.NO.7 FILED UNDER ORDER 39 RULE 1 AND
2 OF CPC.
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IN MFA NO.5247/2023:
BETWEEN:
1. JEMSY PONNAPPA
S/O LATE POONACHA
AGED ABOUT 72 YEARS
R/AT 4TH BLOCK
NO.25/2, BYPASS ROAD
KUSHALNAGAR TALUK
KODAGU DISTRICT-571234.
...APPELLANT
(BY SRI. KARUMBAIAH T.A., ADVOCATE)
AND:
1. G.S. JYOTHI
AGED ABOUT 35 YEARS
D/O LATE G.K. SRINIVAS
W/O SABASTIN JOY
R/AT GOMMANAKOLLI VILLAGE
KUSHALANAGAR HOBLI
SOMWARPET TALUK
KODAGU DISTRICT-571234.
2. G.S. SARASWATHI
AGED ABOUT 42 YEARS
D/O LATE G.K. SRINIVAS
R/AT PUMP HOUSE
PALAHALLI VILLAGE
SRIRANGAPATNA HOBLI & TALUK
MANDYA DISTRICT-571136.
3. CHANDRAKALA
W/O LATE G.K. RAVINDRA
AGED ABOUT 58 YEARS
R/AT GOMMANAKOLLY VILLAGE
KUSHALANAGAR HOBLI
SOMWARPET
KODAGU DISTRICT-571234.
4. POORNACHANDRA
AGED ABOUT 31 YEARS
S/O LATE G.K. RAVINDRA
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R/AT GOMMANAKOLLY VILLAGE
KUSHALANAGAR HOBLI
SOMWARPET
KODAGU DISTRICT-571234
5. GAGANCHANDRA
AGED ABOUT 26 YEARS
S/O LATE G K RAVINDRA
R/AT GOMMANAKOLLY VILLAGE
KUSHALANAGAR HOBLI
SOMWARPET
KODAGU DISTRICT-571234
6. G.K. NINGARAJU
AGED ABOUT 56 YEARS
S/O LATE KARIYAPPA
R/AT GOMMANAKOLLI VILLAGE
KUSHALANAGAR HOBLI
SOMWARPET TALUK
KODAGU DISTRICT
7. SHESHAMMA
W/O LATE G.K. SRINIVAS
AGED ABOUT 62 YEARS
R/AT GOMMANAKOLLI VILLAGE
KUSHALANAGAR HOBLI
SOMWARPET TALUK
KODAGU DISTRICT
8. U.M. LAXMANA
S/O UNNI MODALIYAR
AGED ABOUT 68 YEARS
LAND DEVELOPER AND BUSINESSMAN
CHIKKANNA EXTENSION
III BLOCK, KUSHALNAGARA
9. L. SANTHOSH
S/O U.M. LAXMANA
AGED ABOUT 40 YEARS
CHIKKANNA EXTENSION
III BLOCK, KUSHALNAGARA.
10. L. SAVITHRI
W/O U.M. LAXMANA
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AGED ABOUT 59 YEARS
CHIKKANNA EXTENSION
III BLOCK, KUSHALNAGARA
11. RAJEEV
S/O B.S. RADHAKRISHNA
AGED ABOUT 49 YEARS
NEAR ANJANEYA SWAMY TEMPLE,
III BLOCK, KUSHALNAGARA
12. L. KUMARA
AGED ABOUT 42 YEARS
S/O LINGAPPA
NO.302/1,
LAXMI VENKATESHWARA NILAYA
GUMMANAKOLLY, KUSHANAGARA
13. H.M. BASAVARAJ
AGED ABOUT 61 YEARS,
S/O LATE H.B. MANJUNATH,
CANARA BANK,
MADIKERI TOWN,
KODAGU DISTRICT
14. H.D. SUBRAMANYA
AGED ABOUT 63 YEARS,
S/O DEVAPPA GOWDA,
DARSHAN NILAYA, 2ND CROSS,
VISHWESHWARAIAH ROAD,
SALAGAME ROAD, HASSAN TOWN
15. NASEEM AJAJ
AGED ABOUT 45 YEARS,
W/O S.S. AJAJ AHAMED,
C/O C.M. LAXMAND,
CHIKKANNA LAYOUT,
III BLOCK, KUSHALNAGAR
16. J.R. LAVAKUMAR
AGED ABOUT 38 YEARS,
S/O K.M. MACHAIAH,
HOUSE NO.239,
BEHIND GPM SCHOOL,
GUMMANAKOLLY,
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KUSHALNAGAR,
SOMWARPET TALUK,
17. J.R. CHETHAN
AGED ABOUT 36 YEARS,
S/O K.M. MACHAIAH,
HOUSE NO.239,
BEHIND GPM SCHOOL,
GUMMANAKOLLY,
KUSHALNAGAR,
SOMWARPET TAUK
18. YUSEN KREMER
S/O R.A. DAVID,
AGED ABOUT 57 YEARS,
NO 26, MISSION HOSPITAL,
QUARTERS, R.C. ROAD,
HASSAN DISTRICT
19. KAVERAMMA
W/O K.B. RAMAIAH,
AGED ABOUT 74 YEARS,
LINGAPURA VILLAGE,
MUTHUR LPOST,
PERIYAPATNA TALUK,
MYSORE DISTRICT
20. M. KUSHALAPPA
AGED ABOUT 59 YEARS,
S/O MACHAIAH,
BILIGERI VILLAGE,
SOMWARPET TALUK
21. N.P. VEDHAVATHI
W/O S.M. CHANDRASHEKAR,
AGED ABOUT 42 YEARS,
KATAGERI VILLAGE,
MADIKERI TALUK
22. V. MAHADEVAIAH
AGED ABOUT 70 YEARS,
S/O VEERAPPA,
NEELAVADI VILLAGE
PERIYAPATNA TALUK
MYSORE DISTRICT
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23. K.M. RUKIYA
AGED ABOUT 49 YEARS,
W/O ISMAIL,
INDIRA NAGAR,
THALATH MANE POST,
MADIKERI TALUK
24. S.C. RAJESWARI
AGED ABOUT 45 YEARS,
W/O KUMAR,
BEHIND GPM SCHOOL,
GUMMANAKOLLY,
KUSHALNAGAR,
SOMWARPET TAUK
25. K.C. KALAVATHI
AGED ABOUT 41 YEARS,
W/O K.M.CHUNDAIAH,
AVANDURU VILLAGE AND POST,
MADIKERI TALUK
26. H.B. MURTHY
S/O H.M. BASAVE GOWDA,
AGED ABOUT 56 YEARS,
NANJARAYAPATNA VILLAGE,
KUSHALNAGAR HOBLI,
SOMWARPET TALUK
27. K.B. NINGAPPA
AGED ABOUT 61 YEARS,
S/O K.N. BIDAPPA,
MARIKALLU BASVANALLI VILLAGE,
SOMWARPET HOBLI AND TALUK.
28. C.B SAMPATHKUMAR
S/O LATE C.K. BHIMAIAH,
AGED ABOUT 58 YEARS,
MUKKODLU VILLAGE,
MAKKNADUR POST,
MADIKERI TALUK.
29. N.S. GEETHA
W/O S.B. SHIVARAM,
AGED ABOUT 45 YEARS,
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MARUTHI EXTENSION,
MULLUSOGE VILLAGE
MADIKERI TALUK.
30. SHASHIKANTH SETH
S/O SUBRAYA SETH
AGED ABOUT 51 YEARS,
ADHI SHANKARACHARYA,
EXTENSION, IV BLOCK,
KUSHALNAGAR.
31. B.P. SAVITHA
AGED ABOUT 42 YEARS,
W/O S.S. SHIVAKUMAR
BEHIND GPM SHCOOL,
GUMMANAKOLLY, KUSHALNAGAR
SOMWARPET TALUK.
32. H.B. NAGESH
S/O BHOMMEGOWDA,
AGED ABOUT 56 YEARS,
HASSE VILLAGE,
ECHALAGUDU POST
YASLOOR HOBLI,
SAKLSHPUR TALUK,
HASSAN DISTRICT.
33. H.P. SOMASHEKARA
S/O PAPCHAR,
AGED ABOUT 43 YEARS,
HOSANAGARA VILLAGE,
KADANUR POST,
KONANUR HOBLI,
ARKALGURU TALUK,
HASSAN DISTRICT.
34. H.K. PUTTRAJU
S/O KRISHNE GOWDA,
AGED ABOUT 44 YEARS,
HOSANAGARA VILLAGE,
KADANUR POST,
KONANUR HOBLI,
ARKALGURU TALUK,
HASSAN DISTRICT.
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35. PATRICK JOSEPH
S/O MARI JOSEPH
AGED ABOUT 58 YEARS,
NISARGA LAYOUT,
KUDLUR VILLAGE,
KUSHALNAGAR,
SOMWARPET TALUK.
36. B.R. JANARHANA
S/O RAMAIAH,
AGED ABOUT 57 YEARS,
NISARGA LAYOUT,
KUDLUR VILLAGE,
KUSHALNAGAR,
SOMWARPET TALUK.
37. M.K. MOHAN
S/O APPU KRISHNA
AGED ABOUT 60 YEARS,
NISARGA LAYOUT,
KUDLUR VILLAGE,
KUSHALNAGAR,
SOMWARPET TALUK.
38. M.U. SWARNALATHA
W/O M.A. UKRAPPA,
AGED ABOUT 48 YEARS,
NISARGA LAYOUT,
KUDLUR VILLAGE,
KUSHALNAGAR,
SOMWARPET TALUK.
39. B.D. INDRANI
W/O. DAYANANDA
AGED ABOUT 45 YEARS,
KAVERI BADAVANE
KUDIGE ROAD
GUMMANAKOLLI VILLAGE
KUSHALNAGARA
SOMWARPET TALUK
40. B.B.DINESH
S/O. BELLIYAPPA
AGED ABOUT 62 YEARS,
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KAVERI BADAVANE
KUDIGE ROAD
GUMMANAKOLLI VILLAGE
KUSHALNAGARA
SOMWARPET TALUK
41. PARTHIBHA P.K
W/O. D.B.DINESH
AGED ABOUT 56 YEARS,
KAVERI BADAVANE
KUDIGE ROAD
GUMMANAKOLLI VILLAGE
KUSHALNAGARA
SOMWARPET TALUK
42. K.K.RADHA
W/O. BABU
AGED ABOUT 53 YEARS,
KAVERI BADAVANE
KUDIGE ROAD
GUMMANAKOLLI VILLAGE
KUSHALNAGARA
SOMWARPET TALUK
43. BAYAVANDA B CHINNAPPA
S/O. BOPAIAH
AGED ABOUT 66 YEARS,
KAVERI BADAVANE
KUDIGE ROAD
GUMMANAKOLLI VILLAGE
KUSHALNAGARA
SOMWARPET TALUK
44. M.M. MOHAMMED RAFI
S/O. M.M.MUTHALI
AGED ABOUT 60 YEARS,
KAVERI BADAVANE
KUDIGE ROAD
GUMMANAKOLLI VILLAGE
KUSHALNAGARA
SOMWARPET TALUK
45. CHANDRAMMA
W/O. M.N. NAGARAJ
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AGED ABOUT 53 YEARS,
KAVERI BADAVANE
KUDIGE ROAD
GUMMANAKOLLI VILLAGE
KUSHALNAGARA
SOMWARPET TALUK
46. D.K.RAMAIAH
S/O. D.B.KARUMBAIAH
AGED ABOUT 63 YEARS,
KAVERI BADAVANE
KUDIGE ROAD
GUMMANAKOLLI VILLAGE
KUSHALNAGARA
SOMWARPET TALUK
47. B.M.INDIRA
D/O. B.S.MAHENDRA
AGED ABOUT 49 YEARS,
KAVERI BADAVANE
KUDIGE ROAD
GUMMANAKOLLI VILLAGE
KUSHALNAGARA
SOMWARPET TALUK
48. P.K.DHAMAYANTHI
W/O. G.K.BOPAIAH
AGED ABOUT 52 YEARS,
KAVERI BADAVANE
KUDIGE ROAD
GUMMANAKOLLI VILLAGE
KUSHALNAGARA
SOMWARPET TALUK
49. K.A.NANAIAH
S/O. K.K.ACHAIAH
AGED ABOUT 61 YEARS,
KAVERI BADAVANE
KUDIGE ROAD
GUMMANAKOLLI VILLAGE
KUSHALNAGARA
SOMWARPET TALUK
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50. P.S.BALAKRISHNA
S/O. SUBBAPPA
AGED ABOUT 58 YEARS,
KAVERI BADAVANE
KUDIGE ROAD
GUMMANAKOLLI VILLAGE
KUSHALNAGARA
SOMWARPET TALUK
51. B.GOPAL
S/O. K.C.BOPAIAH
AGED ABOUT 63 YEARS,
KAVERI BADAVANE
KUDIGE ROAD
GUMMANAKOLLI VILLAGE
KUSHALNAGARA
SOMWARPET TALUK
52. SEETHAMMA
D/O. KARIAPPA
W/O KRISHNE GOWDA
AGED 70 YERS,
CHAPPARADAHALLI VILLAGE
HARNALLI HOBLI
PERIYAPATNA TALUK
MYSORE DISTRICT.
53. SAROJAMMA
D/O. KARIYAPPA
C/O G.K.RAVINDRA
AGED ABOUT 68 YEARS
GUMMANAKOLLY VILLAGE
MULLUSOGE, KUSHALNAGAR
SOMWARPET TALUK.
54. NAGAMMA
D/O. KARIYAPPA
C/O MAHESH GOWDA
AGED ABOUT 65 YEARS
RAKESH NILAYA
MULLALLI ROAD, BAEGADDI
SAKESHPURA TALUK.
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55. SHARIF IBRAHIM
S/O IBRAHIM, 41 YEARS,
GUMMANAKOLLI VILLAGE
KUSHALNAGARA
SOMWARPET TALUK.
56. NASRIN AYAZ
W/O. S.S. AYAZ AHMED
AGED ABOUT 38 YEARS,
MARUTHI EXTENSION
GUMMANAKOLLI VILLAGE
KUSHALNAGARA
SOMWARPET TALUK
57. K.B.POORNAIAH
S/O K.B. BALAKRISHNA
AGED ABOUT 41 YEARS
AVANDURU VILLAGE
BADAMANDALA HOBLI
MADIKERI TALUK.
58. B. SARAJAMMA
W/O LATE BASAVARAJ
AGED ABOUT 57 YEARS,
KUDIGE ROAD, KUDLUR VILLAGE
KUSHALNAGAR,
SOMWARPET TALUK
KODAGU DISTRICT.
59. JAI RAJ V.B
S/O. LATE BASAVARAJU
AGED ABOUT 35 YEARS,
KUDIGE RAOD, KUDLUR VILLAGE,
KUSHALNAGAR,
SOMWARPET TALUK
KODAGU DISTRICT.
60. SHRENI V.B.
D/O LATE BASAVARAJU
AGED ABOUT 38 YEARS,
KUDIGE ROAD, KUDLUR VILLAGE
KUSHALNAGAR
SOMWARPET TALUK
KODAGU DISTRICT.
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61. SWATHI V.B.
D/O. LATE BASAVARAJU
AGED ABOUT 38 YEARS
KUDIGE ROAD, KUDLUR VILLAGE,
KUSHALNAGAR,
SOMWARPET TALUK
KODAGU DISTRICT.
62. SAVITHRI
W/O KEERTHI KUMAR
AREHALLI ROAD
KLURUHINASHETTY VATARA
SAKALESHPURA TALUK
HASSAN DISTRICT.
...RESPONDENTS
(VIDE ORDER DATED 31.08.2023,
NOTICE TO R3 TO R62 IS DISPENSED WITH;
VIDE ORDER DATED 18.11.2023,
NOTICE TO R1 IS HELD SUFFICIENT,
R2 IS SERVED AND UNREPRESENTED)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 02.01.2023 PASSED ON I.A. NO.
XI IN O.S.NO.56/2018 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND J.M.F.C., SOMWARPET, PARTLY ALLOWING THE
I.A. NO.11 FILED UNDER ORDER XXXIX RULE 1 AND 2 OF CPC.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
Heard the learned counsel for the appellant.
2. The respondent Nos.1 and 2 are served and unrepresented. The notice against respondent Nos.3 to 62 is dispensed with.
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3. These two appeals are filed challenging the common order dated 02.01.2023 passed on I.A.Nos.7 and 11 in O.S.No.56/2018. In I.A.No.7 prayer is sought against defendant Nos.1(a) to (c) and 54 to 57 restraining them from forming layout in the suit item No.1 property or alienating the suit item No.9 property till the disposal of the suit.
4. I.A.No.11 is filed praying to restrain the defendants from alienating or altering the topography of the suit schedule property or forming any layout in the suit schedule property till the disposal of the suit.
5. The respondent Nos.1 and 2 while filing the suit for partition contended that the suit schedule properties belongs to their family and defendant Nos.1 and 2 who are the main brain in all these illegal transaction of suit properties played fraud and cheated the plaintiffs through defendant No.3 by getting the release deed of the said properties dated 06.11.2015 by paying meager amount of Rs.3,50,000/- and after got the signature of the plaintiffs on the release deed before registration without the knowledge or consent or notice of the plaintiffs mentioned the actual market value of Rs.51,84,000/-. The plaintiffs and defendant No.3 are jointly entitled for equal share in the said
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NC: 2024:KHC:48866 MFA No. 5248 of 2023 C/W MFA No. 5247 of 2023 property. Such fraud by defendant No.1 came to the knowledge of the plaintiffs only after obtaining the certified copy of the said release deed on 15.05.2018 and the law prohibits the execution of release deed by younger legal heirs in favour of elder legal heirs and the release deed is illegal and not binding on the plaintiffs. The plaintiffs and defendant No.3 are jointly entitled for half share in item Nos.11, 12 and 13 and 1/3rd share in other schedule properties and hence the suit is filed for partition.
6. The plaintiffs also sought for inter alia, the relief of temporary injunction restraining the defendants from forming of any layout and selling of item No.9 of the suit schedule property. It is also contended that the defendants have already sold item No.9 of the property in favour of one Jemsy Ponnappa and the plaintiffs filed an application under Order 1 Rule 10 of CPC and the same was allowed and restraint order is sought against the subsequent purchaser. The defendants appeared and filed the written statement and objections to the I.A. contending that already there was a release deed executed by the plaintiffs and their mother, who has been arrayed as defendant No.3 on 06.11.2015 in favour of defendant No.1 and subsequent to the death of defendant No.1, defendant Nos.1(a) to (c) have sold the property in favour of this appellant on
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NC: 2024:KHC:48866 MFA No. 5248 of 2023 C/W MFA No. 5247 of 2023 16.06.2021 vide Annexure-D and they have received an amount of Rs.1,80,00,000/- from the appellant/defendant No.59 and once they have executed the registered release deed on 06.11.2015, now they cannot contend that the same is illegal and fraudulently obtained the same.
7. The Trial Court considered the averments made in I.A.Nos.7 and 11, wherein in I.A.No.7 relief is sought against defendant Nos.1(a) to (c) who are the vendors of this appellant, which includes item No.9 of the property which was sold in favour of the appellant. In I.A.No.11 restraint order is sought against the appellant and the Trial Court having considered the material on record comes to the conclusion that the plaintiffs have made out a prima facie case and balance of convenience in their favour and if injunction is not granted, it affects the right of the plaintiffs. In order to preserve the property, it is just and proper to grant an order of temporary injunction restraining the defendants from alienating or creating charge over the suit schedule property till the disposal of the suit and also comes to the conclusion that any alienation is made during the pendency of the suit is subject to the lis pendency and subject to final result of the suit in view of Section 52 of the Transfer of Property Act. But while considering the application, the Court is
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NC: 2024:KHC:48866 MFA No. 5248 of 2023 C/W MFA No. 5247 of 2023 required to consider the balance of convenience and inconvenience that may be caused to the parties and if injunction is not granted, there are chances of alienating the property to various persons and it will lead to multiplicity of proceedings.
8. The learned counsel for the appellant would vehemently contend that the Trial Court committed an error in passing such an order. The learned counsel contend that when the property was already released in favour of defendant No.1 and the legal heirs of defendant No.1 have sold the property in favour of this appellant, the plaintiffs have no right since they are the parties to the release deed, that too along with their mother executed the same and the same was registered in the year 2015 itself and the suit is filed in 2018 afterthought. The learned counsel brought to the notice of this Court that after purchasing the property, the appellant got converted the property and layout plan is approved and the same is placed before the Court and if any injunctive order is passed, the appellant would be subject to loss since he has paid an amount of Rs.1,20,00,000/-. There is a prima facie document of execution of release deed and whether fraud has been taken place or not, the same is a matter of trial and at this juncture,
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NC: 2024:KHC:48866 MFA No. 5248 of 2023 C/W MFA No. 5247 of 2023 the Court has to take note of the registered document and if restrained order is continued, the appellant/defendant No.59 is going to suffer. No doubt, the relief is sought to declare that the release deed is not valid and mere seeking of such relief cannot be granted and hence it requires interference of this Court.
9. Having heard the learned counsel for the appellant and already this Court pointed out that respondent Nos.1 and 2 who filed the application before the Trial Court did not choose to appear before this Court by engaging the counsel and considering the grounds which have been urged in the appeal memo as well as the grounds which have been urged during the course of argument, the points that arise for the consideration of this Court are:
(i) Whether the Trial Court committed an error in allowing I.A.Nos.7 and 11 filed by respondent Nos.1 and 2 and whether it requires interference of this Court?
(ii) What order?
10. Having heard the learned counsel for the appellant, it is not in dispute that the plaintiffs along with their mother executed the release deed in favour of defendant No.1 on 06.11.2015 and the present suit is filed in 2018. No doubt, the
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NC: 2024:KHC:48866 MFA No. 5248 of 2023 C/W MFA No. 5247 of 2023 appellant has purchased the property in the year 2020 when the suit was pending and the learned counsel contend that when I.A. was filed in 2023, he came to know about the same. It is not in dispute that in respect of item No.9 of the property the relief is sought against defendant Nos.1(a) to (c) who are the legal heirs of defendant No.1 and this appellant is the subsequent purchaser and there was no interim order even though the suit was filed in 2018. It is important to note that while purchasing the property taken note of the release deed executed by the plaintiffs and their mother. It is also the allegation in paragraph No.7 of the plaint that fraudulently obtained the said release deed and in the plaint itself they have stated that got registered the document of release deed having paid the meager amount of Rs.3,50,000/- and the fact that the plaintiffs went to the Sub-Registrar office and executed the release deed is not in dispute. The only allegation is that the property is worth about Rs.51,84,000/- i.e., the actual market value and without the knowledge or consent or notice of the plaintiffs, the document is obtained. Fraud comes to their knowledge after obtaining the certified copy of the release deed on 15.05.2018. When the plaintiffs themselves went to the office of the Sub-Registrar and registered the document of
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NC: 2024:KHC:48866 MFA No. 5248 of 2023 C/W MFA No. 5247 of 2023 release deed, now they cannot contend that they came to know about the same only on 15.05.2018 and prima facie document discloses that the release deed was executed by both the plaintiffs and defendant No.3, who is the mother of the plaintiffs. The appellant purchased the property and the order placed before the Court clearly discloses that after purchasing the property for Rs.1,20,00,000/- got converted the property, obtained permission from the concerned authority, obtained sanction plan and obtained the approved layout plan. When such material is placed on record and when the release deed is also placed before the Trial Court, the Trial Court while granting the temporary injunction ought to have taken note of the said fact into consideration. It is specifically pleaded in paragraph No.7 of the plaint that the document of release deed was executed by paying the sale consideration of Rs.3,50,000/-. The amount was received and executed the release deed in favour of defendant No.1 and the defendant No.1 subsequently passed away and his legal heirs have sold the property in favour of the appellant for valuable consideration. Whether that document was fraudulently obtained or not, is a matter of proof and it requires trial.
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11. Having taken note of the said fact into consideration, the Trial Court committed an error in coming to the conclusion that if the property is sold, it will lead to multiplicity of proceedings and if they are having prima facie case, then coming to such a conclusion is correct, but when the document of release deed was already registered by the plaintiffs along with their mother, after three years they cannot contend that they are innocent and fraudulently obtained the same. If injunction order is granted, the appellant would be put to irreparable loss, since balance of convenience is in favour of the appellant and he has invested the money and purchased the property and got converted the same and layout also approved. These are the aspects which ought to have been taken note of by the Trial Court. There is no prima facie case in favour of plaintiffs since they have executed the registered release deed and they are parties to the release deed along with their mother and the Trial Court lost sight of the same that there is no prima facie case in favour of the plaintiffs and committed an error in passing such an order and hence it requires interference of this Court. Hence, I answer the point for consideration in the affirmative.
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12. In view of the discussions made above, I pass the following:
ORDER
(i) The appeals are allowed.
(ii) The impugned order passed on I.A.Nos.7 and 11 is set aside. Consequently, I.A.No.11 is dismissed in its entirety and I.A.No.7 is set aside only to the extent of item No.9 of the suit schedule property.
Sd/-
(H.P.SANDESH) JUDGE MD List No.: 1 Sl No.: 39