IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF MARCH, 2019 BEFORE BETWEEN:
THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.942/2017(GM-CPC) SMT. K. J. ROOPA AGED ABOUT 37 YEARS W/O H C KUMAR, RESIDING AT NO 149., RAGHAVENDRANAGAR KAVERI MAIN ROAD, 1ST CROSS, MYSORE – 11.
... PETITIONER (BY SRI MAHESH R. UPPIN, ADVOCATE) AND:
1. H. C. RAMESH AGED ABOUT 57 YEARS S/O LATE CHANNAPPA 2. SMT YASHODAMMA AGED ABOUT 78 YEARS W/O LATE CHANNAPPA 3. H C CHANDRASHEKAR AGED ABOUT 55 YEARS S/O LATE CHANNAPPA 4. H C KUMAR AGED ABOUT 53 YEARS S/O LATE CHANNAPPA RESIDING AT NO 149, RAGHAVENDRA NAGAR, KAVERI MAIN ROAD, 1ST CROSS, MYSORE - 11 5. H C SRINIVASU, AGE ABOUT 51 YEARS S/O LATE CHANNAPPA RESPONDENTS Nos.1, 2, 3 & 5 ARE RESIDENTS OF HANAKERE VILLAGE KASABA HOBLI, MANDYA TALUK, MANDYA DISTRICT-571401.
... RESPONDENTS (NOTICE TO R5 IS HELD SUFFICIENT VIDE ORDER DATED 24.04.2018; R1 TO R4 ARE SERVED BUT UNREPRESENTED) … THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 9.9.2016 PASSED BY THE PRL. CIVIL JUDGE AND CJM AT MANDYA IN M.A.15/2015 DISMISSING THE MISCELLANEOUS APPEAL AND CONFIRMING THE ORDER DATED 2.9.2015 PASSED BY THE PRL. CIVIL JUDGE, MANDYA ON I.A. I IN O.S.75/2013 AT ANNEXURE-B AND C RESPECTIVELY.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The unsuccessful defendant No.5 has filed this writ petition against the concurrent findings of fact recorded by the Courts below granting injunction in favour of the plaintiff restraining defendant Nos.1 to 5 from alienating the suit schedule properties. The present petitioner is interested only in respect of suit ‘D’ schedule property.
2. The plaintiff-respondent No.1 filed suit for partition and separate possession contending that the suit schedule properties are the properties of the plaintiff and defendants and there was no partition. The 5th defendant filed her written statement denying the plaint averments and contended that the suit ‘D’ schedule property belongs to her and the suit filed by the plaintiff against suit ‘D’ schedule property is not maintainable and hence sought for dismissal of the suit.
3. Plaintiff filed an application for grant of temporary injunction restraining defendant Nos.1 to 5 from alienating the suit schedule properties mainly contending that the suit schedule properties are the joint family properties of plaintiff and defendants and the same was resisted by the defendants by filing objections. The trial Court considering the application and objections by the order dated 2nd September, 2015 allowed the application filed by the plaintiff under Order XXXIX Rules 1 and 2 r/w Section 151 of the Code of Civil Procedure restraining defendant Nos. 1 to 5 from alienating the suit schedule properties until further orders.
4. Aggrieved by the said order, an appeal was preferred by the present petitioner-5th defendant and the Lower Appellate Court concurring with the findings recorded by the Court below, dismissed the appeal. Both the Courts below have concurrently held that the plaintiff has made out a case and hence granted temporary injunction restraining defendant No.5- petitioner from alienating the suit schedule properties though petitioner-5th defendant is concerned with the suit ‘D’ schedule property, but still unless and until whether the suit schedule properties are the joint family properties or not, is to be decided by the trial Court based on the oral and documentary evidence to be adduced and produced by the parties and this Court cannot interfere with the concurrent findings of fact recorded by the Courts below.
5. Since the suit filed for partition between the parties is of the year 2013 and we are in the year 2019, the trial Court is directed to expedite the suit itself subject to co-operation by both parties to the lis.
Accordingly, writ petition is dismissed.
Sd/- Judge Nsu/-