Karnataka High Court
Shri Irayya Muragayya Mathad vs Rachayya Gurupadyya Mathad & Another on 15 September, 2010
Author: B.S.Patil
Bench: B.S.Patil
IN THD HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD an DATED THIS THE 157 DAY OF SEPTEMBER; 2016. BEFORE... THE HON BLE MR.JUSTICE POS.PATIL. -- --
28. {2010 (GM-CPCY BETWEEN:
( By Sri, Sangram-S Kulkarni, Adv.) lrayya Muragayva Mathad, Aged about 78-vears,. 7 Occ: Agriculture, 9 ps R/o Katageri, Tq: Athant. « Dist: Belgaunty, 0 me Petitioner AND:
joeoael, "Srb. Rachayy a Gurupadayya Mathad, Age: Major, Occ: Agriculture,
- Réo Katager?, Tq: Athant, ist: Belgaurn, Sri. Shivalingayva Guru padayya Mathad, Age: Major, Occ: Agriculture, R/O. Katageri, Ta: Athani, Diet! Belgaum Respondents 3 W.P.63583.2010 This Writ Petition is filed under Articles 226 and 227 of Constitution of India sraving to quash the order. Gated 31.03.2010 passed by the Civil Judge (Sr.Dn. dan. Athe wi, in Mise. Appeal No.15/2002 produced vide Annexure-E. and. further to set aside the order on |.A.No.2 filed 1 ufO 39-Ro1L and 2 of CPC produced vide Annexure-F by issuing. a™ writ. of certiorari, This Petition coming on for he aring on. preliminary.
hearing, the Court made the fol! owing:
ORDER"
Order dated 31.03.2601 0. pasied by learned Ciwil Judge (Sr.Dn.}, Athani, nm Misc. Appeal No] 5/2094 is challenged in this Writ Petition : By the Sait order, the "appel late court has confirmed pase co dey 7 niseed oe hy" the trial court in OLSLN 0.534y 2002 g dnting tem porary injunction restraining the petitioner: Jberein, from. alienating the suit schedule property...
2. ~The Suib.is one for partition and se parate possession of share ol. the petitiener/ defendant and p plaintiffs / "respondenis-herein. It is the contention of the plaintiffs that their fatiser and defendan: bemg direct brothers constituted "family and that the pro perty im question is the joint EER PRESS family property wherein they have got half share. Therefore, they sought for partition and separate possession.
3. Aiong with the plaint, they filed t three app icatio ms: vee application is to restrain the ¢ jefende ANE from. aliénatin a4 suit schedule property. Yet another aplication is me for restrainmg the defendant from "pterfering "with "the joint possession of the suit property. Both thes se appl lications along with another apph cation 1 hav € been : heard together and common order Was" passed: : Peinporary injunction was granted in favour' of peaintiffs.T he defendant / petitioner herein preferred Misc-.Appéal No.13, 14 and 15/2002 against the said orders, 4 me, In this writ petition, w 2are concerned with Misc. Appeal No't5 2002. <The 'appellate court has disposed of all the oe Appeals by a-CO! i mon order. Both the courts have found that : the defen ce set up by the defendant that there was prior oS partiti ion. and the stut property fell to the share of the t fendant was not substantiated by producing any 4 W.P.G3583.2010 documents. The Courts below have found that the plaintiffs have made out prima-facie case for grant of vernporary inpunction to restrain the defendant from alienat in > the property, The lower court has found that if the defend ant' is permitted to alienate the property, it will lead to _ Serious, hardship and pre-judice to the plaintifis and also 'Yead to multiplicity of proceedings... In this: background, "both courts have concurrently held thai balance of envenience was in favour of the plaintiffs for grant. of: temporary injunction. Such findings: record ed afver verifying the documentary evidence can not. be interfered in exercise of writ jurisdiction as no case is made ott to shiw-apparent iNegality or error of jurisdiction in the order passed, Hence, "the Writ Petition being devoid of merits is cismissed) Tike,