Karnataka High Court
Smt.Sushila vs Vijaykumar on 12 June, 2017
Author: S.N.Satyanarayana
Bench: S.N. Satyanarayana
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 12TH DAY OF JUNE 2017
BEFORE
THE HON'BLE MR. JUSTICE S.N. SATYANARAYANA
MFA NO.103780/2016 (MV)
BETWEEN:
1. SMT.SUSHILA,
W/O SHIVASHANKARAPPA HONGAL,
AGE: 55 YEARS, OCC: HOUSEWIFE,
R/O: DANESHWARI NAGAR,
2ND STAGE, VIDYA NAGAR,
HUBALLI, DHARWAD.
2. SMT.KAMALA,
W/O ASHOK NARTI,
AGE: 50 YEARS, OCC: HOUSEWIFE
R/O: BASAVESHWAR PARK,
SULLAD ROAD, BENGERI EXTENSION,
HUBALLI, DHARWAD.
3. SMT.RENUKA,
W/O PRAKASH SHIRAGAMBI,
AGE: 45 YEARS, OCC: HOUSEWIFE
R/O: 4TH CROSS, SHIVANAND NAGAR,
HOSAYALLAPUR, DHARWAD.
4. SMT.SUVARNA @ ANITA,
W/O: YALLAPPA ANGADI,
AGE: 43 YEARS, OCC: HOUSEWIFE
R/O SHIDDALINGESHWAR COLONY,
VIKAS NAGAR, HUBBALLI.
DHARWAD.
5. SHIVANAGOUDA,
S/O BASANAGOUDA PATIL,
AGE: 56 YEARS, OCC: AGRICULTURE
R/O: 4TH CROSS, SHIVANAND NAGAR,
2
HOSAYALLAPUR, DHARWAD.
6. RAJENDRAGOUDA,
S/O BASANAGOUDA PATIL,
AGE: 41 YEARS, OCC: AGRICULTURE
R/O: 4TH CROSS, SHIVANAND NAGAR,
HOSAYALLAPUR, DHARWAD.
7. SMT.DEEPA,
W/O ANANDAGOUDA PATIL,
AGE: 27 YEARS, OCC: HOUSEWIFE,
R/O: 4TH CROSS, SHIVANAND NAGAR,
HOSAYALLAPUR, DHARWAD.
8. KUMAR ADIYAGOUDA
S/O ANANDAGOUDA PATIL,
AGE: 11 YEARS, OCC: STUDENT
R/O: 4TH CROSS, SHIVANAND NAGAR,
HOSAYALLAPUR, DHARWAD.
REPRESENTED BY HIS GUARDIAN
NATURAL MOTHER AND NEXT FRIEND
SMT.DEEPA W/O ANANDAGOUDA,
9. SMT.MAHADEVI,
W/O SHIVANANGOUDA PATIL,
AGE: 46 YEARS, OCC: HOUSEWIFE,
R/O: 4TH CROSS, SHIVANAND NAGAR,
HOSAYALLAPUR, DHARWAD.
...APPELLANTS
(BY SRI J.S.SHETTY, ADVOCATE)
AND:
1. VIJAYKUMAR,
S/O BASAVARAJ CHIKKUMBI,
AGE: 33 YEARS, OCC: BUSINESS,
R/O: 6TH CROSS, SHARADA COLONY,
YALAKKISHETTAR COLONY,
DHAWAD.
2. SRI.BASAVARAJ,
S/O NINGAPPA CHIKKUMBI,
AGE: 66 YEARS R/O PWD CONTRACTOR,
3
4TH CROSS, SHIVANAND NAGAR,
HOSAYALLAPUR, DHARWAD.
3. SANTOSH,
S/O BASAVARAJ CHIKKUMBI,
AGE: 25 YEARS, OCC: PRIVATE SERVICE,
R/O 4TH CROSS, SHIVANAND NAGAR,
HOSAYALLAPUR, DHARWAD.
4. BASAVARAJ MARUTI JIRAGI
AGE: MAJOR, OCC: BUSINESS
R/O ASHIRWAD, PLOT NO.52,
CITB LAYOUR, JAYANAGAR,
DHARWAD.
5. ISHWAR S/O KENCHAPPA,
KALAPPANAVAR, AGE : 53 YEARS,
OCC: AGRICULTURE,
R/O C/O I.K.KALAPPANAVAR,
SANKALP, PLOT NO.51,
HALIYAL ROAD, DHARWAD.
6. SMT.ANUPAMA
W/O NIJALINGAPPA,
KALAPPANAVAR, AGE: 40 YEARS,
R/O C/O I.K.KALAPPANAVAR,
SANKALP, PLOT NO.51,
HALIYAL ROAD, DHARWAD.
7. NAGAPPA S/O RAMAPPA MATTI,
AGE : MAJOR, OCC: ADVOCATE,
R/O GULAGANJIKOPPA, WAR NO.4,
DHARWAD.
8. VEERANNA S/O KENCHAPPA,
KALAPPANAVAR, AGE :63 YEARS,
OCC: AGRICULTURE,
R/O C/O I.K.KALAPPANAVAR,
SANKALP, PLOT NO.51,
HALIYAL ROAD, DHARWAD.
9. AKSHAY S/O ANIL PALANKAR,
AGE : 21 YEARS, OCC: BUSINESS,
R/O PALANKAR CHAWL, DHARWAD.
4
10. BASHIRAHMAD,
S/O RAJABALI SAHEBKHAN,
AGE 40 YEARS, OCC: AGRICULTURE,
R/O BAAD VILLAGE, TQ:/DIST: DHARWAD.
11. HUSSAINSAB S/O ABDULSAB
PARASAPPANAVAR, AGE : 47 YEARS,
OCC: ARMY PERSONNEL, R/O YAKKUNDI VILLAGE,
TQ: SAUNDATTI, DIST: BELAGAVI.
12. SMT.ANNAPURNA
D/O RANGANGOUDA PATIL,
AGE 36 YEARS, OCC: SERVICE,
R/O JAMANKATTI VILLAGE,
TQ: BADAMI, DIST: BAGALKOT.
13. MAHADEVAPPA,
S/O SANKAPPA ADAKI
AGE : 38 YEARS, OCC: ARMY PERSONNEL,
R/O LINGANAKOPPA VILLAGE,
TQ: KALAGHATAGI, DIST: DHARWAD.
14. SMT.PRATIBHA
D/O SHANTAGOUDA PATIL,
AFTER MARRIAGE CALLING AS
SMT.PRATIBHA
W/O NINGANAGOUDA MULIMANI,
AGE 33 YEARS, OCC: TEACHER,
R/O YALAVAR VILLAGE,
TQ: BASAVANABAGEWADI,
DIST: VIJAYAPUR, PRESENTLY RESIDING AT
C/O TANTRI BUILDING, MASHISI ROAD,
DHARWAD.
15. SMT.GANGA @ GIRIJA
W/O JAGADISH MELI,
AGE : 49 YEARS, OCC: HOUSEWIFE,
R/O GOULI GALLI, MALMADDI,
DHARWAD.
16. MALLAYYA S/O GURUSHANTAYYA PUJERI,
AGE : 36 YEARS, OCC: ADVOCATE,
R/O HONNAPUR VILLAGE,
TQ:/DIST: DHARWAD.
5
17. MAHANTESH,
S/O IRAPPA PUJAR,
AGE : 36 YEARS, OCC: BUSINESS,
R/O GULEDAGUDDA VILLAGE,
TQ: BADAMI, DIST: BAGALKOT.
18. NAGAPPA,
S/O MALLESHAPPA KALLUR,
AGE : 37 YEARS, OCC: ADVOCATE,
R/O PANDE CHAWAL, NEAR K.C.PARK,
DHARWAD.
19. SMT.SUBHADRA,
W/O SHIAVASHARANAPPA KAMARAKAR,
AGE : 50 YEARS, OCC: HOUSEWHIFE,
R/O RAMSEETE NIWAS,
SABALE BUILDING, HIREMATH ONI,
HOSAYALLAPUR, DHARWAD.
20. SHANKAR,
S/O MAHARUDRAPPA NAIKAR,
AGE 47 YEARS, OCC: RETIRED,
R/O NEAR BANDEMMA TEMPLE,
SHAKTI NAGAR, GANDHI NAGAR,
DHARWAD.
21. SMT.SHODHA,
W/O SHANKAR NAIKAR,
AGE 31 YEARS, OCC: HOUSEWIFE,
R/O NEAR BANDEMMA TEMPLE,
SHAKTI NAGAR, GANDHI NAGAR,
DHARWAD.
22. SMT.PUSHPA,
W/O NINGAPPA HUDDAR,
AGE : 43 YEARS, OCC: HOUSEWIFE,
R/O PUSHPANJALI, RAJEEV GANDHI NAGAR,
NEAR RAILWAY TRACK, POST : VIDYAGIRI,
DHARWAD.
23. SURESH S/O YALAGOUDA KULKARNI,
AGE : 51 YEARS, OCC: TEACHER,
R/O GOULI GALLI, MALMADDI,
DHARWAD.
6
24. MARUTI S/O GANGAPPA SABARAD,
AGE 52 YEARS, OCC: AGRICULTURE &
BUSINESS, R/O MANIKILLA ROAD,
DHARWAD.
25. KAKAPPA S/O YALLAPPA MADAR,
AGE : 52 YEARS, OCC: AGRICULTURE &
BUSINESS, R/O MAMATAGERI VILLAGE,
TQ: BADAMI,DIST: BAGALKOT.
26. SHIVAPPA,
S/O MAHADEVAPPA BALLUR,
AGE : 52 YEARS, OCC: AGRICULTURE &
BUSINESS, R/O GIRI NAGAR,
KALAGHATAGI ROAD,
DHARWAD.
27. ANJALIDEVI W/O BASAVARAJ
YARAGANAVI, AGE: 52 YEARS,
OCC: AGRICULTURE & BUSINESS,
R/O MAHUSHI ROAD, DHARWAD.
28. KASHIMSAB,
S/O MABUSAB TASEDAR,
AGE 52 YEARS, OCC: AGRICULTURE
& BUSINESS, R/O MANIKILLA ROAD,
DHARWAD.
29. RAGHAVENDRA,
S/O GURUSIDDAPPA AILI,
AGE 52 YEARS, OCC: AGRICULTURE &
BUSINESS R/O MANIKILLA ROAD,
DHARWAD.
30. BASAVARAJ S/O GANGADHAR LOKUR,
AGE 52 YEARS, OCC: AGRICULTURE & BUSINESS,
R/O MANIKILLA ROAD, DHARWAD.
31. SADANAND,
S/O RAMANNA ANCHATAGERI,
AGE 40 YEARS, OCC: AGRICULTURE,
R/O C/O N.L.MALEBENNUR,
GODHAKHINDI COMPOUND,
MALMADDI, DHARWAD.
7
32. GURURAJ S/O DANAJI RUDAGI,
AGE 40 YEARS, OCC: PRIVATE SERVICE,
R/O H.NO.5A, VENKATESH,
COLONY, BENGERI, HUBBALLI,
DIST: DHARWAD.
33. SHRIDHAR,
S/O BHIMARAO GODAKHINDI,
AGE : 40 YEARS, OCC: SERVICE,
R/O BANSHANKARI BUILDING,
GODHAKHINDI COMPOUND,
MALMADDI, DHARWAD.
34. BASAVARAJ,
S/O SIDDALINGAPPA KAREDDY,
AGE 55 YEARS, OCC: LEGAL PRACTITIONER,
R/O H.NO.19, 1ST MAIN, RAGANATHPUR,
MAGADI MAIN ROAD,
BENGALURU-560079.
35. PARVATIDEVI,
W/O BASAVARAJ KAREDDY,
AGE 49 YEARS, OCC : LEGAL PRACTITIONER,
R/O H.NO.19, 1ST MAIN RAGANATHPUR,
MGADI MAIN ROAD, BENGALURU-560079.
36. MR.LOKESH,
S/O BASAVANNEPPA MADANBAVI,
AGE 52 YEARS, OCC: PRIVATE SERVICE,
AT POST : G.BASAVANKOPPA,
TQ: KALAGHATAGI,
DIST: DHARWAD.
37. SMT.YALLAVVA,
W/O HANUMANTHAPPA NADIGATTI,
AGE : MAJOR, OCC: HOUSEHOLD WORK,
AT POST : HEBBALLI VILLAGE,
TQ./DIST: DHARWAD.
38. SMT.RIHANA,
W/O ABHDULAMEED HUDEDMANI,
AGE : 33 YEARS, OCC: HOUSEHOLD WORK,
AT POST AMMINABHAVI VILLAGE,
TQ:/DIST: DHARWAD.
8
39. SHESHAGIRI S/O VENKATESH VYAPARI,
AGE 59 YEARS, OCC: SERVICE,
AT POST : C/O R.R.PURANIK.
PAVAN COLONY, U.B.HILLS,
DHARWAD.
40. RADHAMANI W/O SATISH GOUDAR,
AGE 56YEARS, OCC: SERVCICE,
R/O ANNAPURNESHWARI NILAY,
NEAR DASANAKOPPA CROSS,
KELAGERI ROAD, DHARWAD.
41. SANGMESH,
S/O GURAPPA HOOLI, AGE : MAJOR,
OCC: AGRICULTURE & ADVOCATE,
R/O ANNAPURNESHWARI NILAY,
NEAR DASANAKOPPA CROSS,
KELAGERI ROAD, DHARWAD.
42. SHIVASHANKAR,
S/O RACHAPPA KUDLANNAVAR,
AGE : MAJOR, OCC: AGRICULTURE,
R/O KAMATI ONI, KAMALAPUR,
DHARWAD.
...RESPONDENTS
(BY SRI ARUN L.NEELOPANT, ADVOCATE FOR C/R1)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION ORDER 43 RULE 1(R) OF THE CIVIL PROCEDURE
CODE, AGAINST THE ORDER DATED 17.10.2016 PASSED ON IA
NO.1 IN O.S.NO.69/2016 ON THE FILE OF THE III ADDL.SENIOR
CIVIL JUDGE & C.J.M, DHARWAD.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The defendants No.1 to 6, 8, 10 and 11 in O.S.No.69/2016 on the file of III Addl.Senior Civil Judge 9 and CJM, Dharwad have come up in this appeal impugning the order dated 17.10.2016 on IA No.I filed under Order 39 Rule 1 and 2 R/w Section 151 of CPC, wherein the said application is allowed and injunction is granted in favour of plaintiff who is first respondent in this appeal. It is an admitted fact that, the plaintiff in the Court below is son of late Indumati and her husband Basavaraj. It is also not in dispute that late Indumati was daughter of late Basavangouda who died on 13.04.1999 and his wife Smt.Parvatevva Basavangouda died on 10.03.2010.
2. The records would indicate that, earlier suit in O.S.No.545/2014 was filed by 4 daughters of Basavangouda for the relief of partition against their brother Shivanagouda Basavangouda Patil and others. In the said suit, the 1st respondent herein was also a party. However, in the compromise decree, his name was not shown in the cause title and in the final decree in O.S.No.545/2014. He was also a party in the suit as defendant No.5 and the said suit came to be dismissed against him as per order dated 18.06.2015. While passing 10 the order, it is seen, the suit was also dismissed against defendants No.8 to 15, thereby indicating that he was not on record as on the date when the compromise was entered into between the plaintiffs No.1 to 4 in O.S.No.545/2014 with defendants No.1 to 4, 6 and 7.
3. In this back ground, the 5th defendant against whom the suit was dismissed in O.S.No.545/2014, has filed subsequent suit in O.S.No.69/2016 for the relief of partition and separate possession of his share in the suit schedule property, wherein he has sought order of temporary injunction against defendants from alienating the suit schedule properties till disposal of the suit.
4. The Court below after considering the same, has allowed the said application by order dated 17.10.2016, which is impugned in this appeal. When this matter was taken up for admission, the learned counsel Shri J.S.Shetty submitted that, the 1st respondent-plaintiff in the Court below was party to the settlement and he had given power of attorney to his father to enter into 11 settlement. Though, such statement is made by him in the copy of the final decree, which is produced before this Court today, the said recital is not there. Instead it would indicate that the suit against defendant No.5 is dismissed. Therefore, the said submission of learned counsel for the appellant does not find support from said decree in O.S.No.545/2014.
5. In that view of the matter this court feel, in the facts and circumstances when the genealogy which is produced at Schedule-C to O.S.No.69/2016 clearly discloses that, plaintiff is one of the sons of Indumati who is legal heir of deceased Basanagouda and Parvatevva, it would also clearly indicate that he has right to maintain the suit filed for the relief of partition and separate possession of his share in the suit property. Whether he can establish his right in the said suit or otherwise is the matter which is required to be decided in the suit.
6. However, prima facie it appears that he has made out a case for the relief of temporary injunction 12 which is rightly considered by the court below and accordingly, order dated 17.10.2016 passed by the trial Court on IA No.I does not call for interference in this appeal. Accordingly the same is dismissed.
The registry is directed to send the records to the court below.
Sd/-
JUDGE EM/-