Karnataka High Court
Anilkumar vs Balasaheb And Ors on 2 August, 2022
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 2ND DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
MFA No.201453/2021 (CPC)
C/W.
MFA.201138/2021 (CPC)
In MFA No.201453/2021
BETWEEN:
Anilkumar S/o Balasaheb Patil,
Aged about 42 years,
Occ: Private Company Employer,
R/o House No.73 Block, Chandra Layout,
Bengalore.
...Appellant
(By Smt. Neeva M.Chimkod, Advocate)
AND:
1. Sri Balasaheb S/o Babagouda Patil,
Aged about 72 years,
Occ: Retd. Police Officer,
R/o House No.73, Block Chandra Layout,
Bengaluru-560040.
2. Sri Ummannagouda @ Umeshagoda
S/o Babagouda Patil, Aged about 66 years,
Occ: Retd. Bank Employee,
Now Practicing Advocate,
R/o Raghavendra Nilaya, Girgaonkar,
Plot No.22, Sai Park, Vijaypur-586109.
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3. Basannagouda S/o Babagouda Patil,
Aged about 57 years, Occ: Private Work,
R/o House No.115 Shivoham 2nd Main,
Amruth Nagar, Hebbal,
Bengaluru-560 092.
4. Smt. Channamma Patil Babagouda Patil,
Aged about 60 years, Occ: Household,
R/o House No.73, Block Chandra Layout,
Bengaluru-560040.
5. Ashwini W/o Satish Rachanna,
Aged about 39 years,
Occ: Private Company Employee,
R/o House No."L- 806", Brigade,
Metropolis, Gurudacharapalya,
Mahadevapura, Bengaluru-560048.
6. Smt. Shantala W/o Jayasheel Dhanergi,
Aged about 36 years, Occ: Household,
R/o Pyramid Temple Bells, Ground Floor,
B-Block Ideal Home Layout, Kenchanhalli,
RR Nagar, Bengaluru-560098.
7. Smt. Swati W/o Chirag Varsani,
Aged about 32 years, Occ: Household,
C/o Sri. B.B.Patil, Plot No.73 Block,
KPA Block, Chandra Layout,
Bengaluru-560040.
...Respondents
(By Sri B.B.Patil, Advocate for R1 & R3 to R6;
V/o dated 08.06.2022 Notice to R2 is dispensed with;
V/o dated 20.04.2022 Notice to R7 is dispensed with)
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This MFA is filed under Order 43 Rule 1(r) of Code of
Civil Procedure, praying to allow this appeal and set aside
the order dated 25.09.2021 passed on IA No.X filed by the
plaintiff/appellant on the file of Addl. Senior Civil Judge
and JMFC Sindagi, at Sindagi, and to pass any other
appropriate orders.
In MFA No.201138/2021
BETWEEN:
Anilkumar S/o Balasaheb Patil,
Aged about 42 years,
Occ: Private Company Employer,
R/o House No.73 Block, Chandra Layout,
Bengalore.
...Appellant
(By Smt. Neeva M.Chimkod, Advocate)
AND:
1. Sri Balasaheb S/o Babagouda Patil,
Aged about 72 years,
Occ: Retd. Police Officer,
R/o House No.73, Block Chandra Layout,
Bengaluru-560040.
2. Sri Ummannagouda @ Umeshagoda
S/o Babagouda Patil, Aged about 66 years,
Occ: Retd. Bank Employee,
Now Practicing Advocate,
R/o Raghavendra Nilaya, Girgaonkar,
Plot No.22, Sai Park, Vijaypur-586109.
3. Basannagouda S/o Babagouda Patil,
Aged about 57 years, Occ: Private Work,
R/o House No.115 Shivoham 2nd Main,
Amruth Nagar, Hebbal, Bengaluru-560 092.
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4. Smt. Channamma Patil Babagouda Patil,
Aged about 62 years, Occ: Household,
R/o House No.73, Block Chandra Layout,
Bengaluru-560040.
5. Ashwini W/o Satish Rachanna,
Aged about 39 years,
Occ: Private Company Employee,
R/o House No."L- 806", Brigade,
Metropolis, Gurudacharapalya,
Mahadevapura, Bengaluru-560048.
6. Smt. Shantala W/o Jayasheel Dhanergi,
Aged about 36 years, Occ: Household,
R/o Pyramid Temple Bells, Ground Floor,
B-Block Ideal Home Layout, Kenchanhalli,
RR Nagar, Bengaluru-560098.
7. Smt. Swati W/o Chirag Varsani,
Aged about 32 years, Occ: Household,
C/o Sri. B.B.Patil, Plot No.73 Block,
Chandra Layout, Bengaluru-560040.
...Respondents
(By Sri B.B.Patil, Advocate for R1 & R3 to R6;
R2-Served;
V/o dated 20.04.2022 Notice to R7 is dispensed with)
This MFA is filed under Order 43 Rule 1(r) of Code of
Civil Procedure, praying to allow this appeal and set aside
the order dated 19.08.2021 passed on IA No.2 and filed
by the defendant No.2 and consequently allow the IA No.1
filed by plaintiff in OS No.41/2019 on the file of the Addl.
Senior Civil Judge and JMFC Sindagi, at Sindagi, and to
pass any other appropriate orders.
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These appeals coming on for Hearing this day, the
Court delivered the following:
JUDGMENT
MFA.No.201138/2021 is filed by the plaintiff against the order dated 19.08.2021 passed on I.A.No.1 filed under Order 39 Rules 1 and 2 CPC whereas MFA.No.201453/2021 is filed by the plaintiff aggrieved by the order dated 25.10.2021 passed on I.A.No.X filed under Order 39 Rules 1 and 2 CPC, in O.S.No.41/2019 on the file of Additional Senior Civil Judge and JMFC, Sindagi at Sindagi (hereinafter referred to as 'the Trial Court'). The application in IA.No.I has been partly allowed and the application in IA.No.X has been dismissed.
2. The plaintiff filed the above suit in O.S.No.41/2019 against the defendants/respondents herein for relief of partition and separate possession of the suit properties, which are described in paragraph No. 2 of the plaint.
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3. It is the case of the plaintiff that his grandfather Sri Babagouda @ Babugouda S/o Basanagouda was the owner in possession of the suit lands described at suit schedule A, situated at Handiganur village and also of a dwelling house mentioned at item No.(iii) of suit schedule B situated at Handiganur village and also a warehouse mentioned at item No.(i) of suit schedule B situated at Shahapeth Vijayapur. That after the demise of Babagouda @ Babugouda, the said properties and the dwelling house were succeeded by his 3 sons namely, defendants No.1 to 3 and their names mutated in the revenue records. That item Nos.(i) and (ii) of B Schedule property were acquired in the name of defendant No.1 from the joint family nucleus. As such, though they are in the name of defendant No.1 are joint family properties. It is further case of the plaintiffs that sites mentioned at plaint C schedule property are also acquired from the income derived out from the joint family property. 7
4. Plaintiff filed an application in IA.No.I under Order 39 Rule 1 and 2 of CPC, subject matter of MFA.No.201138/2021 seeking an interim order of injunction restraining defendant Nos.1 to 3 from alienating all items of suit properties. By order dated 19.08.2021, the Trial Court partly allowed the said application holding that the plaintiff has not prima facie established that the properties other than item Nos.1 to 4 in schedule A are the family properties. However, the plaintiff had made out a prima facie case in respect of properties in Schedule A and item No.(iii) of schedule B to be the joint family properties. Thus, restrained the defendant Nos.1 to 3 from alienating the properties in item Nos.1 to 4 of schedule A, item No.(iii) of schedule B and item Nos.(i) and (iii) of schedule C properties in favour of any third parties pending disposal of the suit.
5. Plaintiff also filed IA.No.X under Order 39 Rule 1 and 2 of CPC, which is subject matter of MFA.No.201453/2021 in respect of item No.(ii) of suit B 8 schedule property namely, House bearing No.73 situated in Ward No.40, Hattikuppe in Sy.No.349 to 352, Chandra Layout, Bengaluru, consisting of ground plus three upper floors standing in the name of defendant No.1, seeking an interim order of injunction not to dispossess the plaintiff there-from. By order dated 25.10.2021, the Trial Court dismissed the said application.
6. The Trial Court, while rejecting the aforesaid application in IA.No.X, has taken note of the fact that the defendant No.1 herein had filed an application under Sections 5 and 23 of the Maintenance and Welfare of Parents and Senior Citizens Act against the plaintiff in MISC/CR/69/2019-20 before the Maintenance and Welfare of Parents and Senior Citizens Tribunal, North Sub-Division at Bengaluru. After the contest the said application of the defendant No.1 has been allowed by an order dated 30.03.2021, directing the plaintiff herein to handover the vacant possession of the entire application schedule property in favour of defendant No.1 within 15 days 9 subject to the final orders to be passed in the above suit. It is also borne out of the record that the wife of the plaintiff has initiated proceedings under The Protection of Women from Domestic Violence Act, 2005 against the defendant No.1 and others before the 4th Additional A.C.M.M. at Bengaluru in Criminal Misc.No.120/2019 which is subject matter of challenge before this Court in Criminal Petition Nos.5497/2020 and 4818/2020 wherein all the proceedings have been stayed. It is also on record that the order passed in MISC/CR/Petition No.69/2020 is subject matter of challenge before this Court in W.P.No.7539/2020 wherein this Court by order dated 15.04.2021 has directed the parties to maintain status-quo and the said order is extended from time to time.
7. It is submitted by the learned counsel for the parties that the conciliation process between the parties is also underway. There is no dispute with regard to the order having been passed in the petition in MISC/CR/69/2019-20 before the Maintenance and Welfare 10 of Parents and Senior Citizens Tribunal, North Sub-Division at Bengaluru, which is now pending consideration in W.P.No.7539/2020 before this Court, wherein the parties were directed to maintain status-quo and the said order is being extended from time to time. In the said writ petition Coordination bench of this Court by its order dated 02.12.2021 has made appropriate arrangement between the parties safeguarding their respective interests. In that view of the matter, since the interest of the appellant/plaintiff with regard to his possession in respect of item No.(ii) of suit B schedule property is protected, any order in the appeal in MFA No.201453/2021 would be superfluous.
8. As regards the apprehension of the appellant/plaintiff regarding defendants No.1 to 3 alienating or creating any third party interest over the suit properties during pendency of the proceedings, the trial Court has partly allowed the said application by order dated 19.08.2021. However, with regard to the other 11 properties not covered under the said order, it is needless to mention that any such alienation by defendant Nos.1 to 3 would be governed under the Provisions of Section 52 of the Transfer of Property Act and the interest of the appellant/plaintiff is thereby protected.
9. Considering the relationship between the parties, nature of dispute and pendency of other proceedings referred to hereinabove wherein the interest of the appellant/plaintiff having been protected, also in view of the pendency of the present suit since the year 2019, this Court is of the considered view that the Trial Court be directed to dispose off the suit on merits expeditiously by providing sufficient opportunity to the parties. Hence, the following;
ORDER
i) Appeals in MFA.201453/2021 and
MFA.201138/2021 are disposed off.
ii) The Trial Court after providing sufficient
opportunity to the parties to lead evidence, 12 cross examine the witnesses and to lead rebuttal evidence if any, shall endeavor to dispose off the suit in O.S.No.41/2019 on merits within an outer limit of six months from the date of receipt of a certified copy of this order.
iii) The parties shall co-operate in expeditious disposal of the suit without seeking unnecessary adjournments.
iv) Since the parties are represented by their respective counsel before this Court, they shall appear before the Trial Court on 24.08.2022, without further notice.
v) The appeals are disposed off accordingly.
Sd/-
JUDGE MKM