IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 05TH DAY OF DECEMBER 2017 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR M.F.A.No.6042/2017 (CPC) BETWEEN 1.A THIPPARAJU S/O V T APPAJAPPA, AGED ABOUT 59 YEARS, RESIDING AT NO.6, 5TH CROSS, CUBBONPET, BANGALORE-560 002 2.A VANARAJU S/O V T APPAJAPPA, AGED ABOUT 54 YEARS, RESIDING AT NO.2, SECOND FLOOR, DOSAPATH LANE, SUNKALAPET CROSS, CUBBONPET, BANGALORE-560 002 ... APPELLANTS (By Sri : RAGHU PRASAD B.S., ADVOCATE) AND 1.S.SADANANDA, S/O V T SURAPPA, AGED ABOUT 59 YEARS, 2.S SHIVAKUMAR S/O V T SURAPPA, AGED ABOUT 55 YEARS, 3.S VIJAY KUMAR S/O V T SURAPPA, AGED ABOUT 52 YEARS, ALL ARE RESIDING AT NO.20/1, HONNURAPPA LANE, SIDDANNA LANE CROSS, CUBBONPET, BANGALORE-560 002.
4.S KALAVATHI D/O V T SURAPPA, AGED ABOUT 63 YEARS, RESIDING AT NO.4, NEAR 11TH CROSS, RAILWAY PARALLEL ROAD, SHESHADRIPURAM BANGALORE-560 003.
5.V A SUKUMAR S/O V T SURAPPA, AGED ABOUT 61 YEARS, RESIDING AT NO.50, BASAPPA ROAD, SHANTHINAGAR, BANGALORE-560 027 6.V A UMA D/O V T SURAPPA, AGED ABOUT 55 YEARS, RESIDING AT NO.414, MAHAVEER SEASONS, 2ND SECTOR, SOMASUNDARAPALYA H S R LAYOUT, BANGALORE-560 102 7.V A PREMA D/O V T ASHWATH, AGED ABOUT 57 YEARS, OPP PU COLLEGE, NEAR BUS STOP, DOMMASANDRA, SARJAPUR ROAD, BANGALORE RURAL DISTRICT 8.V A NARESH KUMAR S/O V T ASHWATH, AGED ABOUT 55 YEARS, RESIDING AT NO.20 HONNURAPPA LANE, SIDDANNA LANE, CUBBONPET, BANGALORE-560 002 9.V A SHOBHA D/O V T ASHWATH, AGED ABOUT 53 YEARS, RESIDING AT NO.8 "SAPTHAGIRI" 19TH CROSS (OPP GEO HOTEL) SAMPANGIRAMANAGAR, BANGALORE-560 027 10. A VASANTHAMMA D/O V T APPAJAPPA, AGED ABOUT 70 YEARS, RESIDING AT NO.388, 12TH MAIN ROAD, S B M COLONY, BSK 1ST STAGE, BANGALORE-560 050 11.SUBHADRAMMA D/O V T APPAJAPPA, AGED ABOUT 52 YEARS, RESIDING AT NO.69, SECOND FLOOR, 8TH CROSS, SAMPANGIRAMANAGAR, BANGALORE-560 027 12.A ASHWATHAMMA S/O V T APPAJAPPA, AGED ABOUT 66 YEARS, RESIDING AT WILSON APARTMENT NO.404, 4TH FLOOR, D BLOCK, 13TH CROS, LAKKASANDRA BANGALORE-560 027 13.A RATHNAMMA S/O V T APPAJAPPA, AGED ABOUT 63 YEARS, RESIDING AT NO.28, 1ST MAIN, ROAD, 4TH CROSS, VINAYAKANAGAR, ADUGODI POST, BANGALORE-560 030 A VANAMALA SINCE DEAD BY LR 14. MOHAN KUMARI AGED ABOUT 34 YEARS, NO.94/180 1ST FLOOR, ANEKAL TOWN, BANGALORE RURAL DISTRICT 15.A VIMALA D/O V T APPAJAPPA, AGED ABOUT 57 YEARS, RESIDING AT NO.56, 1ST MAIN ROAD, 4TH CROSS, VINAYAKANAGAR, AUDUGODI, BANGALORE-560 030 16.LAKSHMIDEVAMMA WIFE OF LATE A SHANTHARAJU, AGED ABOUT 65 YEARS, RESIDING AT NO.45/1, 2ND CROSS CUBBONPET, SUNKALPET CROSS, BANGALORE-560 002 ... RESPONDENTS (By Sri. G.KRISHNA MURTHY, SR. COUNSEL FOR SRI. SHIRISH KRISHNA, ADVOCATE FOR C/R8) MFA FILED U/O 43 RULE 1(r) OF CPC, AGAINST THE ORDER DT.03.07.2017 PASSED ON I.A.NO.1 IN O.S.NO.3001/2012 ON THE FILE OF THE XLIII ADDITIONAL CITY CIVIL & SESSIONS JUDGE, BANGALORE, (CCH-44), DISMISSING I.A.NO.1 FILED U/O 39 RULE 1 & 2 R/W SEC.151 OF CPC.
This Appeal coming on for admission this day, the Court delivered the following:
JUDGMENT Heard appellants’ counsel and respondents’ counsel. Appellants have challenged the order dated 03.07.2017 passed on I.A.1 filed under Order 39 Rule 1 and 2 CPC and I.A.1/2016 filed under Order 39 Rule 4 CPC.
2. Appellants herein filed a suit for partition in respect of ‘A’ and ‘B’ schedule properties and made an application as per I.A.1 seeking an order of temporary injunction to restrain the defendants from alienating ‘A’ and ‘B’ schedule properties. It appears that the appellants being plaintiffs filed a memo restricting the application to ‘A’ schedule property only. The Trial Court at the first instance granted an order of injunction which was in force till 12.07.2013 and thereafter the said order came to be extended from time to time. The defendants made an application as per Order 39 Rule 4 CPC seeking to vacate the interim order. The Trial court having heard both the side, vacated the order of temporary injunction.
3. Perused the impugned order. It appears that the Trial Court has proceeded to vacate the interim order of injunction taking into consideration a release deed executed by Appajappa on 08.05.1944 in favour of defendants and also another partition deed dated 27.04.1979. The Trial Court has opined that these two documents are 30 years old and they have presumptive value.
4. This is a suit for partition. The plaintiffs have to establish their right to claim partition. The injunction that the plaintiffs have sought is to see that defendants should not alienate the property till disposal of the suit. If the alienation is made during the pendency of suit, it leads to multiplicity of proceedings. The learned trial judge should have considered the whole aspect of the matter from this angle. Now the learned counsel for the respondents, on the instructions given to him by his clients, submits that the defendants have no intention to alienate ‘A’ schedule property. This submission made by learned counsel respondent is placed on record. This appeal does not survive and therefore, it is dismissed. It is made clear that this order shall not come in the way in developing ‘A’ schedule property.
Sd/- JUDGE DKB