IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO M.F.A.No.4011/2018(CPC) BETWEEN:
1 . SMT REVAMMA W/O LATE BYLAPPA AGED ABOUT 82 YEARS RESIDING AT GIDDENAHALLI VILLAGE, DASANAPURA HOBLI, KASABA HOBLI, NELAMANGALA TALUK BENGALURU-563201 2 . SRI VENKATESH S/O LATE BYLAPPA AGED ABOUT 47 YEARS RESIDING AT GIDDENAHALLI VILLAGE, DASANAPURA HOBLI, KASABA HOBLI, NELAMANGALA TALUK BENGALURU-563201 3 . SRI NARASIMHAMURTHY S/O LATE BYLAPPA AGED ABOUT 42 YEARS RESIDING AT GIDDENAHALLI VILLAGE, DASANAPURA HOBLI, KASABA HOBLI, NELAMANGALA TALUK BENGALURU-563201 4 . SRI MUNIRAJU S/O LATE BYLAPPA AGED ABOUT 40 YEARS RESIDING AT GIDDENAHALLI VILLAGE, DASANAPURA HOBLI, KASABA HOBLI, NELAMANGALA TALUK BENGALURU-563201 ..APPELLANTS (BY SRI SIDDHARTH B MUCHANDI, ADVOCATE) AND:
1 . SMT JAYAMMA W/O NARASIMHAIAH AGED ABOUT 52 YEARS RESIDING AT KOLUR VILLAGE TAVAREKERE HOBLI, RAMOHALLI POST BENGALURU SOUTH TALUK-563202 2 . SRI SURESHA S/O NARASIMHAIAH AGED ABOUT 28 YEARS RESIDING AT KOLUR VILLAGE TAVAREKERE HOBLI, RAMOHALLI POST BENGALURU SOUTH TALUK -563202 3 . SRI JAGADEESHA S/O NARASIMHAIAH AGED ABOUT 26 YEARS RESIDING AT KOLUR VILLAGE TAVAREKERE HOBLI, RAMOHALLI POST BENGALURU SOUTH TALUK -563202 4 . KUM LAKSHMIDEVI D/O NARASIMHAIAH AGED ABOUT 15 YEARS MINOR REP. BY RESPONDENT NO.1 MOTHER IS THE NATURAL GUARDIAN RESIDING AT KOLUR VILLAGE TAVAREKERE HOBLI, RAMOHALLI POST BENGALURU SOUTH TALUK-563202 5 . KUM NAYANA D/O NARASIMHAIAH AGED ABOUT 13 YEARS MINOR REP. BY RESPONDENT NO.1 MOTHER IS THE NATURAL GUARDIAN RESIDING AT KOLUR VILLAGE TAVAREKERE HOBLI, RAMOHALLI POST BENGALURU SOUTH TALUK-563202 6 . SMT PAPAMMA D/O NARASIMHAIAH AGED ABOUT 47 YEARS R/O AIYYANAHALLI VILLAGE DODDAIAH JAJJI POST, DODDABALLAPURA TALUK-543201 7 . SMT GOWRAMMA D/O NARASIMHAIAH AGED ABOUT 42 YEARS R/O 1ST MAIN ROAD, N R COLONY, KOTHITHOP TUMKUR -550011 ..RESPONDENTS (BY SRI SHIVAYOGESHA SHIVAYOGIMATH, ADVOCATE) THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC AGAINST THE ORDER DATED 21.02.2018 PASSED ON I.A.NO.1 IN O.S.NO.533/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE, NELAMANGALA, ALLOWING I.A.NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 OF CPC READ WITH SECTION 151 OF CPC.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though the appeal is listed for admission, with the consent of learned counsel appearing for the parties, it is taken up for final disposal.
Appeal is directed against the order dated 21.02.2018 passed in O.S.No.533/2016 by the Senior Civil Judge, Nelamangala, wherein application filed as I.A.No.1 under Order 39 Rule 1 and 2 came to be allowed and defendants 1 to 6 or any person claiming through or under them are restrained from alienating suit properties in question pending disposal of suit. Said order is challenged by defendants.
2. In order to avoid confusion and overlapping, parties are referred to as per their rankings before the trial court.
3. The relevant facts necessary for the purpose of disposing of the application are that a suit for partition was filed by plaintiffs namely Smt.Jayamma and others against defendants namely Smt.Parvathamma and others for the relief of partition and separate possession of the schedule properties and the matter is contested. The plaintiffs claimed that two items of schedule properties belonged to joint family that was originally headed by one Narasimhaiah who had two wives namely Jayamma Plaintiff No.1 and Gangamma, mother of defendants. It is stated that plaintiffs and defendants being the descendants of said Narasimhaiah are in joint possession and enjoyment of suit schedule properties which consists of agricultural land to the extent of 5 acres 37 guntas in Sy.No.80P/4 situated at Giddenahalli and a residential house bearing No.36 measuring East to West by 13 feet, North to South by 30 feet of the same village. It is claimed that the plaintiffs and defendants are the members of joint Hindu Family possessing the suit schedule properties which are to be partitioned between plaintiffs and defendants. I.A.1 was filed under Order 39 Rule 1 and 2 of CPC by plaintiffs against defendants. It is claimed by plaintiff that first and second defendants are the children through the second wife of Narasimhaiah. Application came to be allowed and defendants are restrained by order of injunction stated above. The defendants have denied the claim of the plaintiff.
4. Learned counsel for defendants-appellants Sri.Siddharth B. Muchandi would submit that the schedule property item No.1 is absolute, self acquired property of the plaintiff. In the sense that it was purchased by them under the registered sale deed dated 28.11.1980 from one Anjinappa for valuable consideration. Vendor of defendant No.3 had purchased the said property from one Narasimhaiah.
5. Learned counsel for respondent opposes the same and submits that the schedule property is a joint family property and it becomes absolutely apportioned when tracing of title of the property is made with reference to the vendors.
6. The relationship between the parties are not disputed.
7. The genealogical tree is as under:
NARASAPPA HOMBAKKA (WIFE) Venkatamma Bailappa Bailavenkatappa Bailamma Narasimhaiah Revamma Venkatesh Narasimhamurthy Hombakka Muniraju Lakshmi Gangamma Jayamma Raju Chandra Papamma Gowramma Suresh Jagadeesh Lakshmidevi Nayana 8. The common ancestor is stated to be Narasappa and Narasimhaiah is one of the sons of said Narasappa. One Bylappa is also stated to be elder brother of Narasimhaiah. Both Narasimhaiah and Bylappa are dead. Item No.1 of the schedule property is admitted to have been granted in favour of Bylappa, elder brother of Narasimhaiah by the Tribunal and later it was sold by Narasimhaiah in favour of one Anjinappa on the ground of inheritance by virtue of oral partition. Defendant No.3 purchased the said property on 28.11.80 from said Anjinappa. The genesis would reflect that originally the schedule item No.1 is the granted property and grantee was Bylappa. However it fell to the share of Narasimhaiah in a family arrangement or partition. Thus, sale is effected by Anjinappa in favour of defendant No.3.
9. In the circumstances in case the respondents succeed in selling the property as self acquired property the first item of the schedule property is almost deleted from the plaint schedule. At the same time if it is ordered not to be sold or disposed of it continues to be schedule property. It is necessary to observe that originally the schedule property was granted to the elder brother of Narasimhaiah.
Considering the nature of the property sale of the same in favour of Anjinappa who is vendor of defendant No.3, the allegation of joint family property at the stage could not be ruled out. The comparative hardship or inconvenience will not be there in case the order is confirmed. A full fledged trial alone can adjudicate the relevant point of facts regarding claims and contentions of the parties. I have also observed the movement of schedule property and its origin is taken care by the Government.
I do not find any infirmity, irregularity in the order dated 21.02.2018 passed in O.S.No.533/2016 by learned Senior Civil Judge, Nelamangala. Order deserves to be confirmed and it is hereby confirmed. Appeal is rejected.
SBN Sd/- JUDGE