Smt. Muddugangamma vs Baby Bhavana on 4 February, 2016

[Cites 2, Cited by 0]

Karnataka High Court

Smt. Muddugangamma vs Baby Bhavana on 4 February, 2016

Bench: R.B Budihal

                               1



 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 4TH DAY OF FEBRUARY 2016

                         BEFORE

        THE HON'BLE MR. JUSTICE BUDIHAL R.B.

          WRIT PETITION No.55960/2015(GM-CPC)

BETWEEN:

Smt Muddugangamma
W/o Sri Muniveeraiah
Aged about 65 years
R/at No.32, Veerasagara Main Road
Behind Government School
Attur Post, Yelahanka Hobli
Bengaluru North Taluk
Bengaluru-560 064.                    ... PETITIONER

(By Sri R Raja, Adv. for
 Sri R B Sadasivappa, Adv.)

AND:

1.     Baby Bhavana
       D/o Sri Rajashekar
       Aged about 15 years

2.     Baby Chandana
       D/o Sri Rajashekar
       Aged about 12 years

Since both are minors
Represented by their mother
Smt Leelavathi
Aged about 38 years
All are R/at No.9, 4th Cross
Santhosh Nagar
Opp. Akshaya Nursing Home
Attur Layout, Yelahanka
Bengaluru-560 064.
                             2




3.   Sri M Rajashekar
     S/o Sri K N Muniveeraiah
     Aged about 42 years
     R/at No.330, Murugeshpalya
     Old Airport Road
     Bengaluru-560 034.

4.   Sri Muniveeraiah
     S/o Late Sri Nanjundaiah
     Aged about 74 years
     R/at No.32, Veerasagar
     Main Road, Behind Government School
     Attur Post, Yelahanka Hobli
     Yelahanka, Bengaluru-560 064.   ...RESPONDENTS


      This Writ Petition is filed under Articles 227 of the
Constitution of India praying to quash the impugned order
dated 15.10.2015 passed by 43rd Additional City Civil and
Sessions    Judge,   Bengaluru     City  on    I.A.No.3  in
O.S.2808/2012 at Annex-E.

      This Writ Petition coming on for Preliminary Hearing
this day, the Court made the following:

                        ORDER

Heard learned counsel for the petitioner-defendant No.3 challenging order dated 15.10.2015 passed by the trial Court on I.A No.3 in O.S. No.2808/2012 produced as per Annexure-E.

2. Learned counsel for the petitioner during the course of arguments made submission that the plaintiffs 3 filed the aforesaid suit seeking partition and separate possession of their 1/3rd share in all the suit schedule properties. In respect of suit schedule item No.4, the petitioner filed I.A. No.3 before the trial Court seeking permission of the Court to alienate the suit schedule property and for the reasons as mentioned in the application. Learned counsel for the petitioner further submitted that alienation of suit property item No.4 was necessary due to the oldage of defendant No.3 as well as the other family members and that, they are suffering from different ailments. Therefore, on this ground, the application was moved before the trial Court. The trial Court has wrongly rejected the application holding that it is the suit for partition claiming the relief in respect of all the suit schedule properties and there is also injunction order which has been passed by the trial Court restraining the defendants from alienating the suit schedule properties during the pendency of the suit. Hence, submitted that the order passed by the trial Court rejecting the application in respect of suit schedule item No.4 is illegal and it is not sustainable in law. Hence submitted that the matter requires consideration in this writ petition.

3. I have perused the grounds urged in the writ petition and also the order passed by the trial Court on I.A No.3. I have also perused the pleadings of the parties copy of which is produced by the petitioner i.e, plaint, written statement, application I.A No.3 and the affidavit supporting the application.

4. Looking to the plaint, plaintiffs have filed the suit seeking partition and separate possession in suit schedule properties items Nos.1 to 4. It is their claim that they are having a share in the properties as the members of the family. It is not in dispute that during the pendency of the suit, the trial Court has also passed an order restraining the defendants from alienating the suit schedule properties. During the pendency of the suit, the said application was filed by the applicant seeking permission for alienation of the said property, but it would affect the interest of the plaintiffs and they will be deprived of their right in respect of suit schedule item No.4. Therefore, the trial Court has rightly observed in its order stating that permission cannot be granted in view of the facts and circumstances of the case so 5 also the injunction order restraining the defendants from alienating the suit schedule properties till disposal of the suit. Therefore, I do not find any illegality in the order passed by the trial Court. There are no grounds to interfere with the order of the trial Court. The writ petition is accordingly rejected.

5. However, as submitted by learned counsel for the petitioner, since the suit is of the year 2012, I direct the concerned trial Court to take up the matter on priority basis and dispose of the same as early as possible and in accordance with law.

Sd/-

JUDGE Cs/-

Ct-Sg/-

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