IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR MISCELLANEOUS FIRST APPEAL No.34 OF 2017 (CPC) BETWEEN 1. Kumari K. Lekhana, Aged about 9 years, 2. Kumari K. Dravya, Aged about 7 years, Both are daughters of Sri. B.J.Krishna Kumar @ Raju, Appellants 1 & 2 are minors and Hence, are represented by their Mother and natural guardian Smt. M.J.Kavitha @ Divya, Aged about 29 years, W/o. Sri. B.J.Krishna Kumar @ Raju, R/at No.173/9, Kashi Vishwanatha Layout, K.R.Puram, Bengaluru-560036.
(By Sri. Varadarajan M.S., Advocate) AND 1. Sri. B.J.Krishna Kumar @ Raju, Aged about 41 years, …Appellants S/o. B.P.Jayarama Reddy, R/at No.393/A, 7th Cross, Maruthinagar, Madivala, Bengaluru-560068.
2. Sri. B.P.Jayarama Reddy, S/o. Late Papanna Reddy, Aged about 69 years, R/at No.3 (New No.9/1), 6th ‘A’ Cross, 1st Main Road, Maruthi Nagar, Madivala, Bengaluru-560068.
3. Smt. Lalitha, W/o. Sri. Muni Reddy, D/o. Sri. B.P.Jayarama Reddy, Aged about 47 years, R/at No.36/1A, Venugopalaswamy Complex, Electronic City Post, Electronic City, Bengaluru-560100.
4. Smt. Varuneshwari, W/o. Sri. Chandra Reddy @ H.N.Chandra, D/o. Sri. B.P.Jayarama Reddy, Aged about 38 years, R/at Hoodi Village, Near S.M.School, Mahadevapura, Bengaluru-560048.
…Respondents (By Sri. G.Krishnamurthy, Sr. Counsel for Sri. P.B.Ajith, Advocate & Sri. R.K.Thontadharya, Advocate, R1-R4) This MFA is filed under Order 43 Rule 1(r) of CPC, against the Order dated 04.10.2016 passed on memo failed by the defendant therein in O.S.No.4913/2015 on the file of the LXI Additional City Civil Judge, Bengaluru, modifying the order dated 10.06.2015.
This MFA coming on for final hearing, this day, the Court delivered the following:
JUDGMENT This appeal is filed by the plaintiffs in O.S.4913/2015 on the file of Addl. City Civil and Sessions Judge, Bengaluru. They have challenged the order dated 04.10.2016. The learned trial judge, by passing the impugned order permitted the defendants to execute registered joint development agreement and a general power of attorney in terms of joint development agreement dated 5.7.2013 in respect of suit items no.1 and 2 and modified the interim order dated 10.06.2015. Aggrieved by this order the plaintiffs are in appeal.
2. The plaintiffs are the daughters of the 1st defendant in the suit. They are minors and represented by their mother and natural guardian. They have sought partition in the suit schedule properties.
3. It may not be necessary to give brief account of the pleading in view of the affidavit filed. In the affidavit, it is stated that in terms of the order dated 19.12.2018 passed by this court, the defendants 1 to 4 entered into a joint development agreement on 2.4.2018 with M/s. Maithri Developers for development of land in Sy.No.55/3 measuring one acre 24 guntas and land bearing Sy.No.55/4 measuring 27 guntas, i.e., plaint schedule items 1 and 2. Now the property is to be developed. Therefore the defendants have given an undertaking that without prejudice to their rights to contest the suit, they will not sell 24921 sq.ft of the super built up area in 4th and 5th floors of the proposed buildings with proportionate undivided share in the land i.e., in items 1 and 2 of the plaint schedule properties till disposal of the suit. They have also undertaken that in the event of plaintiffs’ succeeding in the suit they are ready to allot their respective shares.
4. Today a chart with regard to sharing of the super built up area is produced by the respondents’ counsel. According to this chart, the owners i.e., the defendants 1 to 4 in this suit are entitled to allotment of car parking space in the entire 2nd basement, 3rd basement, ground and surface; and 18196 sq. ft. in the 4th floor and 24921 sq.ft. each in the entire 5th, 6th and 10th floors; 26924 sq. ft. in the 11th floor and again 24921 sq. ft. in the entire 12th floor. This totally comes to 1,44,804 sq. ft. In this measurement the father of the plaintiffs get 1/4th share equal to 36201 sq. ft. In case the plaintiffs succeed in the suit they are entitled to 2/3rd share in 36201 sq.ft plus corresponding undivided interest in the land. Therefore to safeguard the interest of the plaintiffs, it is made clear that the defendant shall keep intact 36200 sq. ft. in the super built up area in the 4th and 5th floors in addition to corresponding proportionate undivided share in the land. With these observations, the appeal stands disposed of.
5. In view of this direction, application for temporary injunction filed by the plaintiffs which is still pending before the trial court may not survive for consideration. The direction thus given now is only a temporary arrangement till disposal of the suit and this order will not come in the way of allotting more share or modifying the share in all the plaint schedule properties to the plaintiffs in case they succeed in the suit.
SD/- JUDGE Sd