IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 02ND DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA No.3449/2016 (CPC) BETWEEN 1. SRI NARAYANAPPA @ S M NARAYANA REDDY S/O LATE MUNINANJA REDDY AGED ABOUT 65 YEARS 2. SRI S N SATISH AGED ABOUT 37 YEARS S/O LATE NARAYANAPA @ S M NARAYANA REDDY BOTH ARE R/AT SULIKUNTE VILLAGE DOMMASANDRA POST VATHUR HOBLI BANGALORE EAST TALUK BANGALORE DISTRICT-562 125. (BY SRI PAPI REDDY, ADVOCATE) ... APPELLANTS AND 1. SMT S N VEENA W/O SRI YELLA REDDY D/O SRI NARAYANAPPA @ S M NARAYANA REDDY AGED ABOUT 36 YEARS R/AT MUTHANALLUR CROSS SY NO.125, SULIKUNTE VILLAGE VARTHUR HOBLI BANGALORE EAST TALUK BANGALORE DISTRICT-562 125 2. SMT. S N BABY @ JYOTHI W/O SRI VIJAYAKUMAR D/O SRI NARAYANAPPA @ S M NARAYANA REDDY AGED ABOUT 30 YEARS R/AT PYRAKAPALLY VILLAGE MUDAGONAPALLY POST HOSUR TALUK KRISHNAGIRI DISTRICT TAMIL NADU STATE-518 380 3. SRI KHAJA S/O SRI KHASIM BHAI AGED ABOUT 47 YEARS 4. SRI MANDROOP S/O SRI DHANAPAL AGED ABOUT 28 YEARS 5. SRI MUKUNDA REDDY S/O SRI MUNISWAMY REDDY AGED ABOUT 43 YEARS 6. SRI N PRAKASH REDDY S/O SRI NARAYANA REDDY AGED ABOUT 43 YEARS RESPONDENTS NO.3 TO 6 ARE R/AT MUTHANALLUR CROSS ROAD SULIKUNTE VILLAGE VARTHUR HOBLI BANGALORE EAST TALUK-562 125 7. M/S WIRELESS T. T. INFO SERVICES LTD., CIRCLE OFFICE BLOCK SILICON TOWERS NO.30/8, HOSUR ROAD KORAMANGALA, BANGALORE-560 095 8. M/S DIVYASHREE TOWER BHARTI AIRTEL OFFICE BANNERGHATTA MAIN ROAD OPP. JAYADEVA HOSPITAL BANGALORE-560 029 9. M/S CONFIDENT PROJECTS (INDIA) LTD. NO.4 BTM RING ROAD 5TH STAGE BTM LAYOUT BANGALORE-560 068 REP. BY ITS CHAIRMAN & MANAGING DIRECTOR ... RESPONDENTS (BY SRI. Y.R. SADASHIVA REDDY, SR.COUNSEL FOR SRI DEEPAK.J., ADVOCATE FOR R-1 SRI. S.R.RAVIPRAKASH, ADVOCATE FOR R-2) THIS MFA FILED U/O 41, RULE 1(r) OF CPC, AGAINST THE ORDER DATED:27.2.2016 PASSED ON IA NO.3 IN O.S.NO.17/2013 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, ALLOWING IA NO.3 FILED U/O 39, RULE 2 & 2 OF CPC.
THIS MFA COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Heard learned counsel for the appellants and learned counsel for the respondents.
2. This appeal is preferred by appellants/defendants-1 and 2 against the order dated 27.02.2016 passed by the I Addl. Senior Civil Judge, Bengaluru Rural District, Bengaluru allowing IA No.3 filed under Order 39, Rules 1 and 2 of CPC in O.S.No.17/2013.
3. In the aforesaid suit, plaintiff had filed I.A.No.3 under Order 39 Rules 1 and 2 of CPC seeking temporary injunction restraining defendants no.1 and 2, from alienating the schedule properties, pending disposal of the suit. The Court below by order dated 27.02.2016 allowed I.A.No.3. The defendants No.1 and 2, their henchmen, attorneys or anybody claiming any right through or under them were temporarily restrained from alienating the suit schedule properties, pending final disposal of the above suit.
4. Learned counsel for the plaintiff contends that the suit schedule properties are the ancestral properties of the plaintiff and defendants and first defendant acquired the suit schedule properties in a family partition dated 16.10.1982. Later a suit in O.S.No.11/2001 was filed by the senior uncle of plaintiff by name Biddappa @ Bidda Reddy and the same ended in compromise on 17.05.2011, wherein the suit schedule properties pertaining to this suit were allotted to the share of first defendant, who is the father of plaintiff. There was no partition between the parties in respect of the suit schedule properties. Hence, the plaintiff is entitled for partition as per amended provisions of Hindu Succession Act and accordingly, filed the above suit along with application seeking temporary injunction restraining the defendants 1 and 2 from alienating the schedule properties.
5. Whereas the defendants objected the application on the premise that there was a partition on 20.03.2003 and the plaintiff was given two sites bearing No.23 and 24 and she has constructed a residential house and residing in the said property and the partition has not been challenged for more than 10 years and by suppressing the same the suit has been filed.
6. The Court below after considering the rival contentions of the parties, allowed I.A.III filed by the plaintiff under Order 39 Rule 1 and 2 of CPC and granted temporary injunction restraining the defendants 1 and 2 from alienating the suit schedule properties. Hence, this appeal by the defendants 1 and 2.
7. Learned counsel for respondent No.1/plaintiff produced a copy of compromise petition dated 17.05.2011 filed in O.S.No.11/2001 where defendant no.1 – Narayana Reddy was a party to the proceedings and he was allotted 11 properties to his share under the said compromise.
Further it is contended that when the schedule properties itself were fallen to his share, by way of compromise, on 17.05.2011, the question of previous partition as alleged by the defendants on 20.03.2003 will not arise.
8. There is no dispute that defendant no.1 is the father of the plaintiff and defendant no.2 is the brother. The suit in O.S.No.17/2013 is pending adjudication. It is not the case of the defendants that there was partition by metes and bounds in the year 2003 between the parties and in that context no supporting documents have been produced alleging the family partition or settlement in the year 2003. Whereas the compromise petition was filed on 17.05.2011 in O.S.No.11/2001 to which defendant no.1 – Narayanappa @ S.M.Narayana Reddy was a party to the suit and he was allotted 11 items of the suit schedule properties. The plaintiff being one of the co-parcener had sought a share in the suit schedule properties under the amended Hindu Succession Act and during the pendency of the suit, the defendants appear to have sold one of property out of the suit schedule property. The Court below while disposing of the application observed that in the event of defendants no.1 and 2 alienating the properties, the same will lead to multiplicity of proceedings and rightly allowed I.A.III filed by the plaintiff under Order 39 Rule 1 and 2 of CPC restraining the defendants 1 and 2 from alienating the suit schedule properties, pending final disposal of the suit. I find no illegality or infirmity in the order passed by the Court below.
9. Admittedly, defendant no.1 is the father of plaintiff and defendant no.2 is the brother. The parties have to establish their case by adducing proper evidence and producing documents. Therefore, keeping in view the relationship between the parties and the nature of the suit, the Court below has to pass suitable orders after adjudication of the dispute and the Court below has rightly allowed the application filed for temporary injunction. In this regard, learned counsel for the parties seek for a direction for speedy disposal of the suit. Keeping in view the above submissions, it is deemed proper to consider the contentions urged by the learned counsel for the parties. Accordingly, the appeal is disposed of with a direction to the Court below to decide the suit in O.S.No.17/2013 by giving an opportunity to both the side to adduce oral evidence and as well as to produce documents within a period of six months from the date of receipt of copy of this judgment.
10. The order passed by the Court below on I.A.3 filed under Order 39 Rules 1 and 2 of CPC restraining defendants No.1 and 2 from alienating the suit schedule properties shall continue, until the final disposal of the above suit.
In view of disposal of appeal, I.A.1/2016 will not survive for consideration. Accordingly, the same is dismissed.
Sd/- JUDGE DKB