Karnataka High Court
H.Chandrashekharaiah vs Honnappa S/O.Marihonnappa on 11 January, 2010
Author: C.R.Kumaraswamy
Bench: C.R.Kumaraswamy
Il\§ THE HIGH COURT O? KARNATAKA AT BANGALORE
DATED THIS THE 15"' DAY OF JANUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE CR. KUMARAswA.I%I:Y""' " '
MISCELLANEOUS FIRST ARREAI No.2259/2009-iC:I2g.::
BETWEEN:
H. CHANDRASHEKHARAIAH
S/O LATE HONNAPPA
AGED ABOUT 51 YEARS
AGRICULTURIST BY PROF~"EESSIO%\1,__
RESIDING AT MYLANAHALLI VILL_AC~E
SOLUR HOBLI, MAGADI TALUK " .
RAMANAGARAM DISTRICT 562 :20.
AND :
1. SRI. HOTYNARPA S/D I4ARIIaDI\'II.IA'I>R.A..---
SINCE DEAD BY,HIIs LRS,
a) SMT.I';'§iqNGALAi'1-MAE' "
. _ W/O5--{MARULASIDDAI.AVH
'I I A. . . . . . ..
, RE_SIDINL3 AT R-AMBALU
IV?'{LN§iA'H>AL',V_II'\/ILLAGE
SOILUR HOBL1, MA-SADI TALUK
'RAMANAGARj,AMi=DISTRICT
b) SlV§Tf .<5HI--\/AMMA w/0 SIDDAPPA
',MMORVI
---- _ RESIDING AT DODDAYAJJI
DODDABLAVANGALA HOBLI
' --.,DODD'ABALLAPU RA "§"ALUK
BANGALORE RURAL DISTRICT.
"EMT. LALITHAMMA W/O SADASHIVAIAH
MAJOR
RESIDING AT BARAGENAHALLI
U
E .. .. :.'.Y__APPELLANT
RULE 1(r)4I"O?""CaODE OF CIVIL PROCEDURE AGAINST THE ORDER DATED
- ,..Ii,2'G-A__1V2.2_0{}8 PASSED ON I.A.NO.1 IN R.A.NO.'250/2008 ON THE FILE OF THE
V 7_"'A4L)l3ITIQNEA'LI CIVIL 3UDGE (SRDN), RAMANAGARA, DISMISSING THE IA
PI.;E.D""LJNDER ORDER 39 RULES 1 AND 2 OF CODE OF CIVIL PROCEDURE FOR
7"T*EI~%IPVO_RfARV INEUNCTION.
SOMPURA HOBLI
NELAMANGALA TALUK
BANGALORE RURAL DISTRICT.
d) SMT. SIDDAMMA WJO LATE HONNAPPA
MAEOR,
e} SMT. YASHODAMMA W/O LATE HONNAPPA
MAJOR, _
DEFENDANT NO.1 (Cl) AND 3(8)
ARE RESIDING AT MYLARAHALLY
SOLUR HOBLI
MAGADI TALUK 552 120
RAMANAGARM DISTRICT.
2 sMT.PUTTAI~IOI\:I\IAMMA wxrO:HONAIA'PPAC_;,'*
SOLUR HOBALI, ' .. . I
MAGADITALUK, " ,. .
RAMANAGARAM DISTRICT " _ '
(R-2 DIED ON 131.7,:-Fc:_5, '-H'E_R"L..RS. ARE,'
ALREADV OI'-I_vRE:CC;_RD AS R--'I~(V'a)'_R-1A'(c)';
3 SR1. MARU:_ASID.DAPP'A' _
S/O CHANNA'JEERA~DEVARU_
AGED ABOUT 62 YEARS, _ I
PRESENTLV NOW _ *
RESIDING AT £VI".'.LAN..AHA.LLIw.\/.I'LLA(3E
SOLUR_HOl3LI" _ '
I MAVGADI TALUK 562,120
RA.MA~N!}_.GAR.AM DISTRIC '. RESPONDENTS
(BY-_Vs':~IT'.' '3AVAvILAKS'HMIv K_.$., ADVOCATE FOR 'M/S.._MYLA.RA.IAH ASSOCIATES FOR R3) TI~iI_§ MIVSCETEDIVIVEOUS FIRST APPEAL IS FILED UNDER ORDER 43 U appellant further states that he has raised crops in the suit schedule properties by personal cultivation and the crops have to be ljaryested. The third respondent is obstructing his agricultural ~ thereby threatening to his peaceful possession and.'en3"oyiin,erit of the"
suit schedule properties. Therefore appe:i=.lyant.-has filled lain'-a'p'pliscatiioii for grant of Temporary Engunction restraining the Resp'on:dent"§No.3_\'fi, from interfering with tie suit property."<._.V'fThe ti'ia*l-Lfouvrt granted the interim order. The appeilantialso No.3 has filed an application for vacating the trial Court heard both and allowed the application filed by interim order granted earlier was confirmed. aggrieved by the order of granting him filed M./i\. No.19/81 and it was di54Vm..'Ssedf""€'r7_VV l7ul.'8.»i"3s8f7',"bfV The order became final and de'fendant'sfi<2 ,3 suffers;--«:'n}unction till disposal of the suit before theV_tria.l'Coui=t_.'V'~i suit was dismissed on 22.10.2008 and the appellaiit.h*erevi.n'has challenged the same in RA. No.150/O8. \,2.3 The.VaA.opellant further states that he has got a good case on
5.:_'meri"t's'_aniduhe is likely to succeed in Regular Appeal. The Respondent 2' f.'ji*<!o_'.'3"sulEfered from the order of Temporary injunction for a period of VV"--...A17'"yea'rs and the Court has also held that appellant is in possession of 1/ 3.2 The third respondent further states that the appellant has no manner of right, title or possession over the suit schedule vpfoipegrty. The appeiiant has filed the appeal against the Judgmen:t'*~ang'cVi.fiacree passed by the trial Court in o.s. No.82/80 on 22.1o._;od8.,V.in' Irjesioect-of ' the suit schedule properties, against the thirdi'res.pe.nd-ent"a'n_d._others.. The allegation made that the Resgpondent 'i.i_o..3 is'v'..'attenipiti;n'g.,:ito_ inl-e[--4Fa[--o i.-uil-in nilagarl near-aiciil nnccoérinn ::r:.r| 'nn1'I'n\:ri's.canVl""nF tho' IIIL ?\4 K4 VVILI \.a-liI\4 \4\.-I |.J\4LJ\_u\4'L-'I n_£-l'\./II 94'"-Q Vi.-1.'?J\.--:)'fll.'s,.l||-q N/' V-ql5\--- agricultural iand is created and.make;iae!i.ev.e"s-tory. 'It..is..~also denied that the appeiiant is raising th'e'crops_ iTi}the\ schedule properties by personaiiy cultivating the land." -- :1": V of suit before' me'trie'i'v;";je.ii'rt,._'t'ilie:'appellant has flied an application for Temporary Injuhctio-n and 'the»--sVa"me was granted and confirmed. It is also true gtgjhatthe thi'rd_V_respondent has filed M.A which was dismissed. :'TheVord&ei* of Injunction passed by the lower Court was only on prima i°a'cie"'casefan,d balance of convenience at the time of gtanting z°'V'the SEilACi~._'Ol'C'jE:i",_n:..' There was a registered settiement deed dated ~ «Ti»-2.4e.4..196l respect to item Nos.1 and 4 and other items i.e. Sy. No"sf30. _and 33 of 'A' scheduie properties and 'B' schedule property and .un'der'gwhich the possession of the said properties were handed over to i"'-w.A_d'eceased second respondent by first respondent who was the sole /4';/' agairist the mutation entry made in the name of the third resp.o'nydent with respect of first and fourth items of the 'A' schedule_pro:perti'e'sx. The Assistant Commissioner after considering the case .on_"i'meri*i.t"s V' dismissed the appeal and the revenue procee«ding_jg _reach.edV vfi.nali't-y accordingly.
3,6 The third respondent further state's._that entries establishes the fact of possessign his family members in respect of item of:.:'iL"xAAf'.:vscijeduie properties. In addition to this fact in their depositions admission and documents cleariy estab.li--s--he_ST'thl.e the third respondent as well as the t.i,tle'.of pyréspiondent in respect of first and fourth items of 'A' schedtiive 'B' scheduie property. The possessioérj of the thirc.1V_V_respondent over the suit schedule properties is asufflicientxll to that the appellant is not in possession of the suit schedule p'rop:e.rtVies;;._.i~'The appellant is not in possession and the T"V'aopellant__cannot_make use of order of Temporary Injunction granted
-. if}-b.yV'the trial' court as a prima facie case. The order of Temporary I.nj'uinction"'A_iwas in existence till the disposal of the suit. So after the . .disposal of the suit, the said order of Temporary Injunction was V riullified and the appellant cannot make use of the same. &/ 11 Court below has dismissed the application filed by the appellar~.»t°under Order~--39 Rules-1 and 2 of Code of Civil Procedure temporary Injunction.
5. Feeling aggrieved by the same, the this appeal. I have heard the |earne_d"<;ounsel fo.-. and'-it the learned counsel for the .tespondent._.l\t;«._3.'~.,_§ haveelso perused the records.
6. Learned cousn«e|"for the ap_pellant~.l's*u_bgmits as under:
5.1 The main con»tentVi'cr1._pr'.'fhe"'iearn'edV'counsel for the appellant is that during the'Ap'eflndeAncy-- ofjthe suit, "the appellant had the benefit of the order oi?injtinlctiognklA:_:AtterTthe--'suit was dismissed, the injunction order was Vvacated': gilt.is';the:_contention of the learned counsel for the ;_a'Vp'peAllan..fi_jthat._:he__is poVsse---ussion of the 'B' schedule property and he is see.k'in.g"for of injunction against the third respondent --
3,___Marluas%.d'dappa.--.7gjf dfaearned counsel for the appellant submits that appellant" i;*ent%tled for a share in the suit schedule property. V'Fh;eryetovre4_hisright has to be protected. The order passed by the trial C_o*urt.is"riot proper. In support of his contentions, learned counsel T the appellant relies on the following decisions:
€/ 12 (3.) In the case of SM? ?ARAYANKA§\lDIYA%_ ERAVATH KANAPRAVAN KALLIANI AM?'/ll-\ AND O"fHERS vs. K, DEVI AND OTHERS reported in AIR 1996 SC 1963, the Hon'b|e Supreme Court has held as under:
(A) Kerala 3oint Hindu Family System (AeoIition)_.;=éj_e£(''3Q'j- *' of 1976), 8.7 -- Scope -w Prohibition as to second..;h_'arrVia.g'ey_ under Marumakkattayam Act -- Repe'a"§'b'y« .55?' ~.:PrevlouVs'--f} operatioa wf said Act would not be=.afI';e£ted Nor iA}il..l°'----.y ur-
repeal affect anything duly doneor suffered theryeu-rider; (2) In the case of CHIKKAMMA ANyo..oTHERs vs."'§\l.v._AASluIl5\ESH AND OTHERS reported in ILR-.2it'OO -'l<Ai;1.:23_4;t~hyis Court has heid as under:
HINDU LAW1x¥lUF;I.Gl~lTS"@'l?.._IL.l_EGITIMATE CHILDREN IN THE z§--'RC')PEVRTYVVaA:_lfl.El;D_:?"'BX' A SOLE SURVIVING coeARce'i'veR..I HI.ixip{_J" ,§.'IuccEssIoAi ACT, 1955 -- _ (CEATAAL ACT 3o" OF 1955) SECTIONS 8, 15 AND HI'Npus,.i'-AMAAAIAGE"A'c:"f, 1955 (CENTRAL AC"? NO. 25 or ' 16 -- Whether the illegitimate son of a .s{;éryf!vi'r'igV"_~vs.ole.:;"coparcener is entitled to a share in the co-p'arcen~ary..-- property held by the soie coparcener at the time hisoeath? HELD -- There cannot be a Coparcenary V "con_sisti'ng of a single individual even if the property in his '' --,,V'p--ossession is coparcenery property -~ Joint family 'property does not cease to be the goint family property '"when it passes into the hands of a sole surviving coparcener. So the chiidren born of a void -- Marriage £/ 15 pleadings of the parties. At the first instance, the trial Court granted ex parte order of Temporary Injunction. ' Feeling aggrieyedV,"t:,»}iithe_. same, lVi.A_ No.19/81 was filed by the third defendarit__"andgitlawas' dismissed and the order of Temporary Inju::ic't'ion was con:'fi'rn:ed;...'Tl"hl'e, order of injunction continued till the disposaly the The the plaintiff was dismissed on 22.1o{:.oo8: F'e"e|i_ng _ag.gri'e_ye-d...by the* T' same, the plaintiff has preferred RAV:'N_o;1.5O,/2OC}«8,,_ Lffurin the UCI pendency of the appeal, the plaintiff/'a,DL5.ei;'aiéntjvhasi filed an application for grant of Temporary. Injunctii-onifinv=respec't voT:gt'he suit schedule property. The said?%,pp:liicca.tion'.wi3_sJdisr%ii.ss'e'd;'"""Being aggrieved, the appellant has pref:e.rre:i:lt_his'l«iis.c'ei~ian,:eoti's l'v-"lrst Appeal.
10. During the coVurs}e._of'-arguments, the iearned counsel for the appellant has veh4e~mV_ently,--.arguedthat an order of injunction may be Qiéiiitecl ii._distL€rb'*--a--ppe|lant's possession from '8' schedule property" i~.ie."vK:ane'sh'umari No.32, old mud roofed house and hfttalu.
is al':.o'the contenltivon of the iearned counsel for the appellant that eyenthoughxtyihe appellant is an iiiegitimate child, he is entitled for a
-..:sl1ai=e 'inthe suit schedule property. There is force in the submission of the iearned counsel for the appellant. It is also the contention of the T l-ea'i*ne'd counsei for the appellant that third defendant is a stranger.
""«,_"T'al<ing into account of pecuiiar facts and circumstances of the case and (>// 16 also considering the contention of the learned colirisei for the appellant that his possession has to be protected eventhough he is i:~'Iegit'i'rrlate child and also considering the finding recorded by the triézi ' the plaintiff/appellant is an illegitimate chi_id.,.. _I__am_7of.that existing state of affairs has to be mairitairied i5otih._'t'he"pa"rt'iie.$ V'*:1ii_i the disposal of R.A. No.i50/2008. .7Th_e caatt"'t»eloi---.i'"i's;di.t¢cted dispose oi' the appeal Le. mi. 150/2o0"e~»..yg4iithih §"i"iOi'l'Ei'itS:f{"O¥"i1 the date of receipt of copy of this ord"e_r.
:1. In the result, Al' pass the,f'ol.l,avli'i_ng:g: ' Q_;l;;o=é R"
1. This Miscellaneous .r3iA3ppaa'li'i'.ijs_ Vail:-a:waAd.§ iri' part.
2. Status qucthas both the parties till the disposal of Rh. No.i'5o_/"mos.-.. V 'A "
3. The court_beltwii..i5"tli.rVectec:_ttyaispose of RA. l\io.15o/2008 within two mvorigthsfifrom the"--d.aVt_e_&of receipt of copy of this order. Sd/-
JUDGE