Karnataka High Court
Smt. Shivamma vs Smt. Shakunthala. D on 5 March, 2024
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2024:KHC:9135
WP No. 8668 of 2023
C/W WP No. 11960 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION No. 8668 OF 2023 (GM-CPC)
C/W
WRIT PETITION No. 11960 OF 2023(GM-CPC)
IN W.P.No.8668/2023:
BETWEEN:
SMT. SHAKUNTHALA D
D/O LATE DODDAPATALAIAH
W/O RAMAKRISHNA G C
AGED ABOUT 34 YEARS
RESIDING AT No.67/2, FIRST FLOOR
1ST MAIN ROAD, 1ST CROSS
AVALAHALLI, BYATARAYANAPURA
BENGALURU - 560 026.
...PETITIONER
(BY SRI. CHANDRACHUD A, ADVOCATE)
AND:
Digitally signed by 1. SMT. SHIVAMMA
LAKSHMINARAYANA
MURTHY RAJASHRI W/O LATE DODDAPATALIAH
Location: HIGH AGED ABOUT 51 YEARS
COURT OF RESIDING AT No. 67/2
KARNATAKA
1ST MAIN ROAD, 1ST CROSS
AVALAHALLI, BYATARAYANAPURA
BENGALURU - 560 026.
2. THE MANAGER
APPEX CO - OPERATIVE BANK LIMITED
CHANDRA LAYOIUT BRANCH
OPP. TO 17TH BMTC BUS DEPO
CHANDRA LAYOUT
BENGALURU - 560 040.
...RESPONDENTS
(BY SRI C R GOPALA SWAMY, SENIOR COUNSEL FOR
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NC: 2024:KHC:9135
WP No. 8668 of 2023
C/W WP No. 11960 of 2023
SRI BHARGAV G, ADVOCATE FOR R1
SRI H A KUMARA SWAMY, ADVOCATE FOR R2
SRI H S SHIVANNA GOWDA, ADVOCATE FOR R3
SRI N RAMACHANDRA, ADVOCATE FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSITITUTION OF INDIA PRAYING TO CALL FOR RECORDS IN OS
NO.7815/2014 ON THE FILE OF I ADDL. CITY CIVIL AND SESSIONS
JUDGE, AT BENGALURU (CCH-2) AND QUASH THE IMPUGNED ORDER
DATED 29.03.2023 PASSED IN OS NO. 7815/2014 ON THE FILE OF I
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, AT BENGALURU (CCH-2)
AT ANNX-F.
IN W P No.11960/2023:
BETWEEN:
SMT. SHIVAMMA
W/O LATE DODDAPATALAIAH
AGED ABOUT 45 YEARS
RESIDING AT No. 67/2
1ST MAIN ROAD, 1ST CROSS
AVALAHALLI, BYATARAYANAPURA
BENGALURU - 560 026. ...PETITIONER
(BY SRI C R GOPALA SWAMY, SENIOR COUNSEL FOR
SRI BHARGAV G, ADVOCATE)
AND:
SMT. SHAKUNTHALA D
W/O SRI RAMAKRISHNA G C
D/O DODDAPATALAIAH
AGED ABOUT 22 YEARS
R/AT No.1461, 1ST FLOOR
17TH MAIN, MUNESHWARA BLOCK
OPP BANK OF INDIA, SRINAGARA
BANGALORE - 560 026. ...RESPONDENT
(BY SRI A CHANDRACHUD, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSITITUTION OF INDIA PRAYING TO ISSUE DIRECTION QUASHING
ANNEXURE-H AND THE ORDER PASSED ON I.A.No.3 AND I.A.No.8 DATED
29.03.2023 AND THEREBY ALLOW THE APPLICATIONS. THE I.A.No.3 AND
I.A.No.8 FILED BY THE PETITONERS BEFORE I ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE BENGALURU O.S.No.7815/2014 AND ETC.,
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NC: 2024:KHC:9135
WP No. 8668 of 2023
C/W WP No. 11960 of 2023
THESE PETITIONS COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
1. Both these petitions arise out of O.S.No.7815/2014 on the file of the I Additional City Civil and Sessions Judge, Bengaluru.
2. The said suit was filed by the plaintiff - Smt.Shivamma, mother of defendant No.1 - Smt.Shakuntala and the Appex Co-operative Bank Limited, who has arrayed as defendant No.2. The said suit was contested by Smt.Shakuntala - defendant No.1. During the pendency of the suit, the plaintiff filed an application I.A.No.8 seeking amendment of the plaint under Order VI Rule 17 r/w Section 151 of CPC, as well as I.A.No.3 under Section 151 of CPC, for a direction to defendant No.1 to deposit the entire rents of Rs.30,000/- per month and advance / lease amount of Rs.10,00,000/- alleged to receive by defendant No.1 from the tenants in occupation of the suit schedule property. By the impugned common order, the Trial Court rejected I.A.No.8 filed by the plaintiff and I.A.No.3 filed by the plaintiff was partly allowed, directing defendant No.1 to deposit the monthly rent of Rs.6,700/- per month.
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NC: 2024:KHC:9135 WP No. 8668 of 2023 C/W WP No. 11960 of 2023
3. Aggrieved by the impugned order, rejecting I.A.No.8 and partly allowing I.A.No.3, the plaintiff - mother has filed WP No.11960/2023. So also, aggrieved by the impugned order partly allowing I.A.No.3, defendant No.1 - daughter is before this Court by way of WP No.8668/2023.
4. A perusal of the material on record would indicate that the Trial Court has refused to permit the plaintiff to amend the plaint and consequently rejected I.A.No.8, on the ground that the plaintiff had specifically contended in the original plaint that the suit schedule property was her separate and self acquired property and in the light of the said admission made by the plaintiff, she was not entitled to resile from the same and put forth a diametrically opposite plea / contention, by incorporating Paragraph 5(a) by contending that the suit schedule property was an ancestral and joint family property acquired with the aid of joint family nucleus. While coming to the said conclusion, the Trial Court held as under;
"10. POINT Nos.1 & 2:- This is a suit brought by the plaintiff against the defendants for the relief of declaration to declare that, the gift deed dated 30.10.2012 as null and void and also for direction to the 2nd defendant to recover the loan from the collateral security given by them at the time of granting of the loan and also for permanent -5- NC: 2024:KHC:9135 WP No. 8668 of 2023 C/W WP No. 11960 of 2023 injunction to restrain the 1st defendant, her agents, supporters, followers or anybody claiming through her from interfering, dispossess, sale, sale agreement etc., in respect of the suit schedule property.
11. Now, the matter is posted for plaintiff's evidence, at this stage, the plaintiff has come up with this I.A.No.3 to give direction to the defendant No.1 to deposit entire rents of Rs.30,000/- of every month and advance / lease amount of Rs.10,00,000/- which is illegally received by the defendants from the tenants. The plaintiff in her affidavit has stated that, she is the absolute owner of the property bearing Khatha No.41-44-67/2 to an extent of 32 x 28 ft with construction of 3 floor RCC building by taking permission from the concerned authority. Due to ill-health in the year 2012, the 1st defendant has requested to execute the Will in her favour in respect of the suit schedule property and she thought that, WILL can be cancelled when the defendant is working against to her will and wish. In that view, she directed the husband of the 1st defendant to type and bring the Will. The 1st defendant and her husband colluded each other and they have typed the gift deed in respect of the suit schedule property instead of WILL by suppressing the real facts and illegally obtained the registered gift deed in her name. Thereafter, she came to know the illegal acts of the 1st defendant and requested to cancel the gift deed and handed over the property to her custody. Initially, the 1st defendant agreed to cancel the gift deed and later at the instigation of her husband, she refused to cancel the gift -6- NC: 2024:KHC:9135 WP No. 8668 of 2023 C/W WP No. 11960 of 2023 deed. Further, she has stated that, after creating the gift deed, the 1st defendant and her husband collecting rents of Rs.30,000/- per month and advance amount of Rs.10,00,000/- from six house premises with force able without having any right. Further, she has stated that, she has no other source of income for her livelihood. She and her husband are senior citizens and not in a position to do any work to her livelihood and residing in one portion of her house. The defendant No.1 is not having any independent right to collect the rent from the tenants. Further, she has stated that, when there is a dispute regarding the ownership, it is the duty of the defendants to tender the account and deposit the amount till the disposal of the suit.
12. The defendant No.1 has disputed the entire case and taken contention that, her husband has also invested the amount to purchase the land and to construct the building. Further, her mother had voluntarily executed the gift deed as per law and handed over the possession.
13. Whether the gift deed is voluntarily executed or not is a matter of trial. Whether the defendants had created the gift deed or not, it will also touches the merits of the case. It is not the stage to conduct mini-trial.
14. Further, the plaintiff has produced certain documents i.e., lease deed dated 09.07.2014, wherein it discloses that, 1st defendant given the suit schedule property on lease basis for Rs.4,00,000/-. The rent deed dated 09.07.2014 discloses that, the 2nd defendant given the -7- NC: 2024:KHC:9135 WP No. 8668 of 2023 C/W WP No. 11960 of 2023 premises on monthly rent of Rs.2,500/-. Another rent agreement dated 16.12.2014 discloses that, the 2nd defendant given the another premises on monthly rent of Rs.4,200/-. In the instant case, the plaintiff contended that, the defendant No.1 colluding with the 2nd defendant got created the gift deed. If the plaintiff establish her case that, the defendant Nos.1 and 2 have fraudulently got the gift deed, then she is entitled for rent. Under the said circumstances, it is necessary to give direction to the defendants to deposit the rents before the Court.
15. In order to show that, the defendants are getting rents of Rs.30,000/- per month, no documents are produced by the plaintiff before this Court. The documents produced by the plaintiff discloses that, the defendant Nos.1 and 2 are getting monthly rent of Rs.2,500/- and Rs.4,200/- and from the lease house, rent is not fixed. Under the said circumstances, it is not possible for this Court to decide the total rents getting from the suit schedule property without evidence. Under the said circumstances, at this stage, it is better to give direction to the defendants to deposit Rs.6,700/- per month before the Court. Accordingly, the point No.1 is answered partly in the affirmative.
16. POINT No.2: Further in respect of I.A.No.8 is concerned, the plaintiff prayed to amend the plaint as stated in the application. In the amendment application, the plaintiff has contended that, the suit schedule property is purchased from the joint family fund by selling ancestral -8- NC: 2024:KHC:9135 WP No. 8668 of 2023 C/W WP No. 11960 of 2023 property bearing Sy.No.69/1, measuring to an extent of 19 guntas through a registered sale deed on 27.08.2007 and another Sy.No.69/1 measuring 0.10 guntas both the properties are situated at Bettenahalli Village, Kundana Hobli, Devanahalli Taluk and at the time of construction of the schedule property, the plaintiff and her husband obtained a loan from the Bengaluru City Co-operative Bank. The said loan has been cleared by alienating the ancestral property bearing Sy.No.62/1 measuring 20 guntas Sy.No.62/2, measuring 20 guntas, Sy.No.18/2 measuring ½ gunta, Sy.No.19/3 measuring 0.04 guntas and Sy.No.19/2 measuring to an extent of 0.06 guntas of Bettenahalli Village. The suit schedule property is not a self-acquired property of the plaintiff, she is the house wife and she is not having any independent income to purchase the schedule property, the suit schedule property is purchased and constructed in the joint family fund by alienating the above ancestral properties. The 1st defendant has no right to create alleged gift deed in her name without knowledge and consent of the plaintiff and which is purchased from the joint family funds by alienating ancestral property of the husband of the plaintiff. To add this fact, she has come up with this application.
17. The defendant No.1 has submitted that, Sri.Doddapatalappa married Anneyamma and out of their wedlock, they got one daughter by name Ramakka. Again, Doddapatalappa got married the plaintiff as second wife. Out of their wedlock, the 1st defendant and Shashikala were born. They constituted a joint hindu family. The joint -9- NC: 2024:KHC:9135 WP No. 8668 of 2023 C/W WP No. 11960 of 2023 family has possessed the land bearing Sy.No.69/1 situated at Bettanahalli Village, Kundana Hobli, Devanahalli Taluk and other properties.
Sri.Doddapatalappa has executed a registered gift deed dated 13.12.2004 in favour of the plaintiff. Apart from the said property, the land bearing Sy.No.62/1 measuring 20 guntas, 62/2 measuring 20 guntas, Sy.No.18/2 measuring ½ guntas, Sy.No.19/3 measuring 04 guntas and Sy.No.19/2 measuring 06 guntas. Sri.Doddapatalappa has no right to gift the joint family and ancestral property in favour of anybody else. Based on the alleged gift, the plaintiff has got the land measuring 19 guntas in Sy.No.69/1 sold to Smt.Vijayakumari by sale deed dated 27.08.2007 and the land measuring 10 guntas in Sy.No.1 in favour of Manjunath by sale deed dated 27.08.2007. Out of the sale consideration, the plaintiff has purchased the northern portion of the property measuring east to west 35 feet and north to south 28 feet in her name by sale deed dated 06.09.2007 and since the defendant No.1 has sought for partition of the joint family properties and allotment of her share therein, the plaintiff has gifted the said property by gift deed dated 30.10.2012. The joint family is also possessing the land bearing Sy.No.168/8 measuring 1 acre 07 guntas situated at Bettahalli Village, Kundana Hobli, Devanahalli Taluk. Out of the sale consideration of the property sold as stated above, the defendant No.2 has purchased the site No.20 situated at 4th Cross, Ganapathi Nagar, Hoskerehalli Main Road, formed in Sy.No.2/4 by sale deed dated 31.10.2011, Sri. Doddapatalappa agreed to gift the suit schedule property
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NC: 2024:KHC:9135 WP No. 8668 of 2023 C/W WP No. 11960 of 2023 in favour of Sasikala and asked her to execute the release deed and by the representation stated above, the plaintiff and Sri.Doddapatalappa have obtained the release deed dated 06.12.2012. In fact, the release deed should have been registered in book I. Though in the release deed, amount is mentioned, but no amount has been given and in lieu of the same, the plaintiff has executed the gift deed and thereafter, Sasikala has filed O.S.No.5263/2007 for declaration and possession and got the suit filed through her second daughter. The plaintiff has executed the gift deed in respect of the Site No.20 situated at 4th Cross, Ganapathi Nagar, Hoskere Halli Main Road, in favour of her daughter Sasikala by gift deed dated 11.07.2013. The said property is also belonging to the joint family and purchased out of the joint family funds. To decide whether the suit schedule property is a joint family property and the same was acquired through joint family funds, it required evidence.
18. Further, whether Sri.Dddaptalappa agreed to gift the suit schedule property in favour of Sasikala and asked her to execute the release deed and by the representation, the plaintiff and Sri.Doddapatalappa have obtained the release deed dated 06.12.2012, to know these facts also evidence is required.
19. Further, the defendant No.1 has contended that, plaintiff and Sri.Doddapatalappa had no right to gift the suit schedule property and the property gifted to Sasikala is not included in the suit, as such, the suit for partial
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NC: 2024:KHC:9135 WP No. 8668 of 2023 C/W WP No. 11960 of 2023 partition is not maintainable. Regarding this aspect is concerned, to decide it, the framing of issue is necessary and even at the time of argument or during the pendency of the suit, the defendant No.1 is entitled to argue the same.
20. Further, the defendant No.1 has contended that, as per the Hon'ble Apex Court judgment and Hon'ble High Court rulings, the ancestral and joint family properties cannot be gifted. As stated above, to decide whether it is a ancestral property or the same was acquired out of the joint family funds or it is the self-acquired property, it touches the merits of the case. It is not the stage to consider these aspects, but in the instant case, the plaintiff filed the application to amend the plaint as stated in the application. The Court has to see whether the amendment sought by the plaintiff will change the nature of the suit or not, whether the facts urged in the application are material to prove her case or not. If the fact alleged in the application is relevant, then the Court will consider the same.
21. Further, the 1st defendant has contended that, Ramakka filed suit and in that suit, the 1st defendant is not impleaded as party. Further, the 1st defendant has contended that, the plaintiff and Doddaptalappa have filed Crl.Misc.No.368/2018 on the file of VI Addl. Family Court, Bengaluru, for the relief of maintenance against the defendants herein. In all the proceedings, the plaintiff has contended that, the suit schedule property is the self-
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NC: 2024:KHC:9135 WP No. 8668 of 2023 C/W WP No. 11960 of 2023 acquired property of the plaintiff. If the defendant No.1 is not impleaded as a party, then there is no bar her to implead the defendant No.1 by filing the application, If that Court arrive at a conclusion that, the suit of the plaintiff is suffering from non-joinder of necessary party, then that Court will give direction to Ramakka to include all the necessary parties. There is no merit to consider those aspects in this suit.
22. Further, the defendant No.1 has contended that, the plaintiff is having knowledge of the fact that, Doddapatalappa had no right to gift the property and despite such knowledge, she has obtained the gift deed and she in collusion with Sri.Doddapatalappa has sold the properties for huge sale consideration and mentioned about 20% of the sale consideration in the sale deed and as such, the entire pleadings are out come to play fraud upon the defendant. Whether Sri.Doddapatalappa had right to execute the gift deed in favour of the plaintiff or not and whether the sale deed executed by Doddapatalappa by colluding with plaintiff and out come to play fraud upon the defendants or not, to decide all these facts it required evidence. This is immaterial to consider those aspects at this stage.
23. From the pleadings, it discloses, the plaintiff has come up with I.A.no.8 that, the suit schedule property is purchased from the joint family fund by selling ancestral property bearing Sy.No.69/1, measuring to an extent of 19 guntas through a registered sale deed on 27.08.2007 and
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NC: 2024:KHC:9135 WP No. 8668 of 2023 C/W WP No. 11960 of 2023 another Sy.No.69/1 measuring 0.10 guntas. Further, the plaintiff has taken contention that, at the time of construction of the schedule property, the plaintiff and her husband obtained the loan from the Bengaluru City Co- operative Bank and cleared the said loan by alienating the ancestral property bearing Sy.No.62/1 measuring 20 guntas Sy.No.62/2, measuring 20 guntas, Sy.No.18/2 measuring ½ gunta, Sy.No.19/3 measuring 0.04 guntas and Sy.No.19/2 measuring to an extent of 0.06 guntas of Bettenahalli Village. The suit schedule property is not the self-acquired property of the plaintiff and she is the house wife and she is not having any independent income to purchase the schedule property and the suit schedule property is purchased and constructed in the joint family fund by alienating the above ancestral properties.
24. But in both the suits i.e., O.S.No.7815/2014 and O.S.No.6808/2014, the plaintiff in her plaint pleadings in para 2 has stated that, the suit schedule property is her self-acquired property and purchased the same through the registered sale deed from the earlier vendor on 06.09.2007. The defendants have contended that, the suit schedule property is the joint family property and it was acquired out of the joint family nucleus. After 9 years from the date of suit, the plaintiff has come up with I.A.No.8 to amend the plaint stating that, the suit schedule property is not the self-acquired property and the same was acquired out of the joint family funds. From the said statements, it shows that, it will change the entire contention taken by the plaintiff earlier. Under the said circumstances, the
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NC: 2024:KHC:9135 WP No. 8668 of 2023 C/W WP No. 11960 of 2023 plaintiff is not entitled to amend the plaint as prayed in I.A.No.8 since the said statements are against to her plaint pleadings. If the I.A.No.8 is allowed, it will change the contentions taken by the plaintiff in her plaint earlier. Hence, I.A.No.8 filed by the plaintiff to amend the plaint deserves to be dismissed. Accordingly, I answer point No.2 is in the negative.
25. POINT NO.3: For the aforementioned discussions, I proceed to pass the following:
ORDER IA No.3 filed by the plaintiff under Sec.151 of CPC is hereby partly allowed.
The defendants are directed to deposit the monthly rents before the Court every month as observed in para- 15 of this order.
I.A.No.8 filed by the plaintiff under Order 6 Rule 17 r/w Sec.151 of CPC is hereby dismissed."
5. As can be seen from the impugned order, the Trial Court has come to the correct conclusion that having specifically contended that the suit schedule property was the separate and self acquired property, the plaintiff was estopped from subsequently contending and putting forth a completely contradictory and mutually destructive / inconsistent plea that the suit schedule property was the joint family property which is contrary to her own plea put forth
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NC: 2024:KHC:9135 WP No. 8668 of 2023 C/W WP No. 11960 of 2023 in the original plaint. Under these circumstances, I do not find any illegality or infirmity in the impugned order passed by the Trial Court rejecting I.A.No.8 warranting interference by this Court in exercise of my jurisdiction under Article 227 of the Constitution of India, as held in Radhey Shyam Vs. Chhabi Nath - (2015) 5 SCC
423.
6. Insofar as the impugned order passed by the Trial Court, partly allowing I.A.No.3 is concerned, it is relevant to state that the plaintiff has sought for declaration that the registered gift deed dated 30.10.2012 is null and void and for other reasons. It is needless to state that till the plaintiff succeeds in the suit and the gift deed is declared as null and void, the gift deed would remain subsisting and would be binding upon the plaintiff who would be entitled to seek any relief in relation to the suit schedule property only in the event she succeeds in the suit. Under these circumstances, the application directing defendant No.1 to deposit the rents is highly premature, since the same would arise only upon the plaintiff obtaining a declaration to the effect that the gift deed was null and void and not at a prior point in time. Under these circumstances, the Trial Court clearly fell in error in directing
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NC: 2024:KHC:9135 WP No. 8668 of 2023 C/W WP No. 11960 of 2023 defendant No.1 to deposit a sum of Rs.6,700/-, pending disposal of the suit.
7. Insofar as the contention urged by the plaintiff - mother that she is entitled to receive maintenance from defendant No.1 - daughter is concerned, it is brought to my notice that in Crl.Misc.No.368/2018 filed under Section 125 of Cr.P.C, defendant No.1 - daughter has been directed to pay a sum of Rs.5,000/- to the plaintiff - mother and the said order is being complied with, as per the directions of this Court in WP No.20913/2023. Viewed from this angle also, the question of directing defendant No.1 to deposit the rents before the Trial Court would not arise. At any rate, in the event, the plaintiff were to succeed in the suit, the plaintiff would be entitled to recover the said rents by way of mesne profits upon succeeding in the suit. It is also relevant to state that the plaintiff - mother is in occupation of a portion of the suit schedule property in the ground floor which is yet another circumstance to come to the conclusion that she would not be entitled to seek a direction to be issued to defendant No.1 to deposit the rents accruing from the suit schedule property. Under these circumstance, the impugned order
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NC: 2024:KHC:9135 WP No. 8668 of 2023 C/W WP No. 11960 of 2023 passed by the Trial Court partly allowing I.A.No.3 deserves to be set-aside and I.A.No.8 is liable to be dismissed.
8. In the result, the following;
(i) WP No.8668/2023 is allowed.
(ii) The impugned order passed on I.A.No.3 is
hereby set-aside and I.A.No.8 stands dismissed.
(iii) Defendant No.1 is directed to furnish the accounts as regards the rents received by her before the Trial Court.
(iv) WP No.11960/2023 is dismissed and the impugned order rejecting I.A.No.8 stands confirmed.
(v) The plaintiff - mother is entitled to remain in occupation of the ground floor of the suit schedule property where she is already residing, without any impediment, hindrance or obstruction from defendant No.1 or any one else.
Sd/-
JUDGE GH List No.: 1 Sl No.: 34