IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE N.S.SANJAY GOWDA WRIT PETITION No.44186/2014 (GM-CPC ) BETWEEN:
SRI GANGADHAR, S/O M C SONNAPPA, AGED ABOUT 45 YEARS, R/O HIRIYANNANAHALLI VILLAGE, DIBBURU POST, KASABA HOBLI, CHICKKABALLAPUR TALUK & DISTRICT, PIN 562 104. … PETITIONER (BY SRI M. JAI PRAKASH REDDY ADVOCATE) AND:
1. SRI M.C SONNAPPA, S/O LATE CHANNAPPA, AGED ABOUT 70 YEARS R/O HIRIYANNANAHALLI VILLAGE, DIBBURU POST, KASABA HOBLI, CHICKKABALLAPUR TALUK & DISTRICT, PIN 562 104.
2. SMT S GAYATHRI, D/O M C SONNAPPA, W/O B S SURESH BABU, AGED ABOUT 36 YEARS, R/O DODDABETTAHALLI VILLAGE, YELAHANKA HOBLI, BANGALORE NORTH TALUK, PIN 560 064. … RESPONDENTS (BY SRI M. S. VARADARAJAN, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 27.08.2014 IN M.A. NO.45/2013 PASSED BY THE LEARNED ADDL. SENIOR CIVIL JUDGE & JMFC CHICKVALLAPUR VIDE ANN-E.
THIS WRIT PETITION IS COMING ON FOR PRELIMINARY HEARING IN B GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner is the plaintiff who filed a suit for partition against his father and sister. In the said suit, he sought for an interim order restraining his father/1st defendant from alienating the suit properties. The Trial Court granted an interim order restraining the 1st defendant from alienating 1/3rd share of the plaintiff pending disposal of the suit.
2. The 1st defendant/father carried the matter in appeal and the Appellate Court has allowed the appeal and dismissed I.A.No.1. The Appellate Court has held that the plaintiff has not pleaded as to how the suit properties became the ancestral and joint family properties and from the written statement pleadings, it became clear that the suit properties were not the properties of great grandfather of the plaintiff and therefore, they could not be considered as joint family properties.The Appellate Court observed that in the plaint, there was no specific averments that the suit properties were joint family properties. In my view, the question as to whether these properties are joint family properties, would have to be established by the plaintiff during trial.
3. Learned counsel for the petitioner submits that the matter is now set down for trial and the suit is likely to be disposed of in the near future.
4. Learned counsel for the respondents submits that there is no infirmity in the order passed by the Appellate Court which requires interference at the hands of this Court.
5. The Interim order in question was granted by the Trial Court on 15.04.2013 and the same was set aside on 27.08.2014. Admittedly, from 2011 to 2014, there has been no alienation made by the 1st respondent. Even during the pendency of this writ petition, the 1st respondent has not alienated the suit properties. Having regard to the fact that the suit properties have not been alienated for past seven years, I feel that there is no necessity, at this stage, to permit the 1st respondent to alienate the properties and create multiplicity of proceedings.
6. Learned counsel for the respondents submits that taking undue advantage of interim order, an attempt has been made by the petitioner to prevent their possession.
7. Learned counsel for the petitioner submits that petitioner is willing to give an undertaking that he would not interfere with the possession of the respondents.
8. In view of this submission, I am of the view that the impugned order of the Appellate Court cannot be sustained and the same is required to be set aside and the order of the Trial court should stand restored.
9. Having regard to the fact that the 1st respondent is nearly 80 years and the suit is of the year 2012, it is just and necessary to direct the Trial Court to dispose of the suit within a period of three months.
10. The Petitioner is directed to co-operate with the Trial Court in the disposal of the suit. If any attempt is made to protract or delay the proceedings, the respondents are at liberty to seek for vacation of the interim order.
11. Petitioner shall file an undertaking in terms stated above within a period of two weeks from today.
Sd/- JUDGE PKS