IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF MARCH, 2019 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.33955/2015(GM-CPC) BETWEEN:
SRI. GANAPATHI SHEREGAR, AGED ABOUT 66 YEARS, S/O LATE SUBRAYA SHEREGAR AGRICULTURIST, MADDODI, BYNDOOR VILLAGE AND POST, KUNDAPUR TALUK, UDUPI DISTRICT-574202.
... PETITIONER (BY SRI K. CHANDRANATH ARIGA, ADVOCATE) AND:
1. SMT. SANJEEVI SHEREGARTHI AGED ABOUT 73 YEARS, D/O LATE SUBRAYA SHEREGAR W/O.NARAYANA SHEREGAR, PRESENTLY RESIDING AT THALAGUPPA, NEAR POLICE STATION, SAGARA TALUK, POST THALAGUPPA, SHIVAMOGA DISTRICT-577301.
2. SMT. MARLI @ LAKSHMI SHEREGARTHI, AGED ABOUT 71 YEARS, D/O LATE SUBRAYA SHEREGAR, W/O LATE SUBRAYA SHEREGAR, ALIVEGAGILUMANE, NEAR BRIDGE, THAGGARSE VILLAGE AND POST, KUNDAPURA TALUK, UDUPI DISTRICT-576201.
3. SMT. BHAVANI SHEREGARTHI AGED ABOUT 69 YEARS, D/O LATE SUBRAYA SHEREGAR, W/O NARAYANA SHEREGAR, GORALLIMANE, HOSANAGAR TOWN, POST HOSANAGAR, SHIVAMOGA DISTRICT-577301.
4. HANUMANTH SHEREGAR, AGED ABOUT 66 YEARS, D/O LATE SUBRAYA SHEREGAR, RETD., A.C.T.OPP:VINAYA TALKIES, HANGLUR VILLAGE AND POST, KUNDAPURA TALUK, UDUPI DISTRICT 576201.
5. NAGESH M AGED ABOUT 61 YEARS, S/O LATE SUBRAYA SHEREGAR, KARINGOLLI SHIVAMOGGA ROAD, HOSANAGAR POST, SHIVAMOGA DISTRICT-577301.
6. RAJU SHEREGAR AGED ABOUT 57 YEARS, D/O LATE SUBRAYA SHEREGAR, J.M.C. ROAD RAGHAVENDRA NILAYA, HOSANAGARA TALUK, POST HOSANGAR, SHIVAMOGGA DISTRICT-577301.
7. SEETHARAMA SHEREGAR AGED ABOUT 53 YEARS, S/O LATE SUBRAYA SHEREGAR, MANJUSHREE NILAYA, MARKET ROAD, HEBRI POST, UDUPI TALUK, 576201.
8. SMT. MOOKAMBIKA AGED ABOUT 62 YEARS, W/O LATE GOVINDA SHEREGAR, MADDODIMANE, MAYYADI POST, BYNDOOR VILLAGE, KUNDAPURA TALUK-576201.
9. SMT. VIJAYA KUMARI AGED ABOUT 49 YEARS, W/O JAYAKUMAR H.N., RAVINDRA NAGARA, 5TH CROSS, NEAR S.B.M., SHIVAMOGGA-577301.
10. SURESH MADDODI, AGED ABOUT 47 YEARS, S/O GOVINDA SHEREGAR, C/O PARAMESHWARA KAGERI, KOTESHWARA VILLAGE AND POST, KUNDAPURA TALUK 576201.
11. SMT. JAYAKUMARI AGED ABOUT 45 YEARS, W/O SATHYANARAYANA BATWADI BATWADIMANE, BANKESHWARA NEAR BUS-STAND, BYNDOOR VILLAGE AND POST, KUNDAPURA TALUK 576201.
12. SMT. SUJATHA M AGED ABOUT 43 YEARS, W/O MANJUNATHA, UGRANIMANE, MARIKAMBA TEMPLE ROAD, SHIRASI-UTTAR KANNADA-581401.
13. SUBRAHMANYA MADDODI AGED ABOUT 42 YEARS, S/O GOVINDA SHEREGAR, SOMESHWARA ROAD, BYNDOOR VILLAGE AND POST, KUNDAPURA TALUK, 576201.
14. SUDHAKARA MADDODI AGED ABOUT 35 YEARS, S/O GOVINDA SHEREGAR, MADDODIMANE MAYYADI POST, BYNDOOR VILLAGE, KUNDAPURA TALUK 576201.
15. RAGHVENDRA MADDI, AGED ABOUT 35 YEARS, S/O GOVINDA SHEREGA MADDODIMANE, MAYYADI POST, BYNDOOR VILLAGE, KUNDAPURA TALUK-576201.
... RESPONDENTS (BY SRI AJITH ANAND SHETTY, ADVOCATE FOR R-13; R-4, R-8, R-9, R-10,R-11, R-14 ARE SERVED BUT UNREPRESENTED;
VIDE ORDER DATED 10.07.2018 R-1 TO R-3, R-5 TO R-7, R-12 AND R-15 ARE DELETED ) …… THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 8.4.2015 ON I.A.NO.12 IN O.S.NO.211/2012 PASSED BY THE COURT OF PRL. CIVIL JUDGE & JMFC, KUNDAPURA [ANNEXURE-G].
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The plaintiff filed the present writ petition against the order dated 8.4.2015 on I.A.No.12 made in O.S.No.211/2012 on the file of the Prl. Judge and JMFC, Kundapura, dismissing I.A.No.12 filed by the plaintiff to dismantle the old residential house building situated over item No.6 of suit ‘A’ schedule properties bearing Door No.9/II of Byndoor Grama Panchayath and in occupation and enjoyment of the plaintiff and to permit the plaintiff to construct his own residential house building in the same place for his occupation and enjoyment.
2. The petitioner herein filed suit in O.S.No.211/ 2012 for the relief of partition and separate possession in respect of suit schedule properties morefully described in item Nos.1 to 7 of the plaint schedule, contending that all the suit schedule properties are the joint family properties of plaintiff and defendants, plaintiff and defendants are the members of joint family and plaintiff is entitled to share. The defendant No.10 filed written statement, denied the plaint averments and contended that there was an earlier partition on 30.01.2008 and present suit filed for partition is not maintainable. The other defendants adopted the said written statement filed by the tenth defendant.
3. On an application filed by the plaintiff under Order XXVI Rule 9 of Code of Civil Procedure for issue of Commission for local investigation in order to ascertain the facts stated in the application that the residential building where the plaintiff resides is in dilapidated condition. After hearing both the parties, the Trial Court, by the Order dated 12.12.2014, allowed the application and appointed the Court Commissioner for local inspection to note and report the condition of the house building as prayed for in the application. The said order passed by the Trial Court has reached finality.
4. Thereafter, the Court Commissioner submitted his report on 14.01.2015 stating that the house property sought to be inspected is not suitable for human dwelling. The said report is also accepted by the Trial Court. Therefore, the present petitioner filed an application for permission to dismantle the old residential house situated over item No.6 of suit ‘A’ schedule properties bearing Door No.9/II of Byndoor Grama Panchayath and to construct/renovate his own residential house for his own occupation and enjoyment in the same place. The said application was opposed by the defendants. The Trial Court dismissed the application mainly on the ground that the plaintiff earlier sought injunction to restrain the defendant not to alter the nature of the suit. The same principle is also applicable to the plaintiff. When the plaintiff has a restraining order against opponents, he shall not, under the guise of the said order, construct a new house. Accordingly, dismissed the application. Hence the present writ petition is filed.
5. I have heard the learned counsel for the parties at length.
6. It is not in dispute that the suit filed by the plaintiff is for partition and separate possession in respect of the suit schedule property and it is also not in dispute as submitted by learned counsel for both parties, the plaintiff is residing in item No.6. The defendants claim that they are in constructive possession of other items of suit schedule properties. It is also not in dispute that, on an application filed by the plaintiff, Court Commissioner came to be appointed to inspect the spot to know the existing condition of the house property. Accordingly, said order passed by the Trial Court has reached finality. The report submitted by the Court Commissioner, at paragraphs 2, 3 and 6 clearly depicts that item No.6 is unfit to use for dwelling. It is also not in dispute that the plaintiff obtained an order of temporary injunction restraining the defendants from constructing any building or construct or alter the nature of the suit schedule properties. The Trial Court, on that ground alone, proceeded to dismiss the application filed by the plaintiff seeking permission to dismantle the old residential house and to construct a new house in the same place.
7. The fact remains that, as per the report of the Court Commissioner, the house is in dilapidated condition and is unfit for human dwelling. If petitioner is permitted to construct a house in item No.6, no prejudice will be caused to the defendants. Ultimately, reconstruction/renovation made in item No.6 is always subject to the result of the suit and will be binding on all the parties to the suit. At the same time, defendants who are claiming to be in constructive possession are permitted to alter/renovate any portion of the properties of which they are in possession, it will not harm any of the parties. Ultimately, till disposal of the suit, they have to survive under a shelter.
8. Learned counsel for both the parties, on instructions, fairly submit that the plaintiff can renovate/reconstruct building in item No.6 which will be subject to the result of the suit. The same is applicable to the defendants as well. Ultimately, the parties i.e., either the plaintiff or the defendants cannot claim any equity in all the items of the suit schedule properties and they shall be bound by the judgment and decree.
9. In view of the above, writ petition is disposed of.
The Order dated 08.04.2015 passed by the Trial Court in O.S.No.211/2012 is modified permitting the plaintiff to proceed with the renovation/reconstruction of house in item No.6, so also, the defendants are permitted to renovate/reconstruct in other items of the suit schedule properties where they are claiming constructive possession, which will be subject to the result of the suit. Both parties shall not claim equity, thereafter, and ultimately, the judgment and decree to be passed in the suit based on oral and documentary evidence to be adduced and produced by the parties shall be binding on the parties.
10. Since the suit is of the year 2012 and we are in 2019, the Trial Court is directed to expedite the suit itself in accordance with law, subject to cooperation by both the parties to the lis.
Sd/- JUDGE kcm