IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR MISCELLANEOUS FIRST APPEAL No.7551 OF 2018 (CPC) BETWEEN 1. Sri. Ranganath K. Shetty, Aged about 44 years, Son of Karunakar Shetty, 2. Smt. Ramya Shetty, Aged about 34 years, Wife of Ranganath K. Shetty Both residing at No.23/2, Sri. Ramamandir Road, Opp. to Trinity Hospital, Basavanagudi, Bengaluru-560004.
(By Sri. B.R.Viswanath, Advocate) AND 1. Sri. V.Krishnappa, Aged about 67 years, Son of Late Veerappa @ Erappa, No.52/1, New No.33, “Manikanta Nivasa’ Javarayya Garden, T.R.Nagar, Bengaluru-28.
2. Smt. Saraswathi, Aged about 47 years, Wife of Late V.Sham @ Somu, …Appellants 3. Sri S.Lokesh, Aged about 28 years, Son of Late V.Sham @ Somu, 4. Sri. S.Kiran, Aged aobut 26 years, Son of Late V.Sham @ Somu, 5. Smt. Chaitra, Aged about 24 years, D/o. Late V.Somu No.2 to 5 are residing at No.42/20, 3rd Cross, 3rd Block, Javarayya Garden, T.R.Nagar, Bengaluru-28.
(By Sri. H.A.Chitrashekharaiah, Advocate and …Respondents Sri. H.C.Dushyanth Aradhya, Advocate for C/R1 - Absent) This MFA is filed under Order 43 Rule 1(r) of CPC, against the order dated 9.8.2018 passed on I.A. No.13 in O.S.No.5964/2016 on the file of the XIV Additional City Civil Judge, Bengaluru (CCH No.28), allowing I.A.No.13 filed under Order 39 Rule 1 & 2 read with Section 151 of CPC.
This MFA coming on for admission this day, the court delivered the following:
JUDGMENT Heard the appellants counsel. Counsel for respondent No.1 Sri. Chitrashekaraiah is absent at 3.00 pm. In the pre- lunch session he had sought pass-over through another advocate. The presence of respondents 2 to 5 is not necessary for disposal of this appeal.
2. The first respondent’s suit is for partition in two items of the property described in the plaint schedule. He has claimed half share in them. Besides partition, he has sought a declaration that the sale deed dated 27.10.2014 executed in favour of defendants 5 and 6, i.e., the appellants herein does not bind his interest. Along with the plaint he made an application for temporary injunction to restrain the appellants from putting up any construction or changing the nature of item Nos. 2 and 3 of the plaint schedule property. The trial court allowed the said application and hence this appeal.
3. The learned counsel for the appellants submits that the properties belonged to one Veerappa absolutely. During his lifetime there had taken place a partition on 18.8.1999. In the said partition Veerappa retained the plaint schedule properties to his share and his one daughter and two sons are also given certain properties. Veerappa made a will in favour of his wife Nanjamma on 17.2.2010 bequeathing the plaint schedule properties to her. She sold these two properties to the appellants by executing a sale deed on 27.10.2014. To this sale deed her daughter Vijayalakshmi and the legal heirs of her another son Shyam were consenting witnesses. The plaintiff being another son did not sign as a consenting witness. Therefore, it is his submission, even assuming that the plaintiff has any share in the plaint schedule properties, he does not get more than 1/4th share which is equal to 600 square feet. The entire measurement of items 1 and 2 is 2,494 square feet. In case the plaintiff succeeds in the suit, he can be allotted a share in item No. 1 and therefore the appellants cannot be restrained from putting up construction in item No.2 of the plaint schedule property. He also submits that the appellants filed a memo in the trial court stating that they will not claim equity. Learned counsel submits that as construction work is already undertaken by the appellants and if this appeal is not allowed, the appellants will suffer irreparable loss and injury. The impugned order has to be modified suitably.
4. On perusing the plaint it is found that the plaintiff/respondent No.1 has claimed partition in respect of the properties which were retained by his father after partition deed dated 18.8.1999. Veerappa executed a will in favour of his wife. The plaintiff disputes this will. Even if it is assumed that Veerappa had not executed the Will, at best the plaintiff may be entitled to 1/4th share. The appellants are the purchasers from the plaintiff’s mother. Nanjamma’s daughter Vijayalakshmi and children of her deceased son are said to be the consenting witnesses to the sale deed executed by Nanjamma in favour of the appellants. They are not disputing the sale deed. In these circumstances plaintiff may get 1/4th share in the plaint schedule properties. The appellants have undertaken construction in item No.2 of the plaint schedule properties. The appellants have also filed a memo that in the event the plaintiff succeeds in the suit they will not claim equities. For these reasons, the interest of the appellants should not suffer and therefore the impugned order is set aside. The temporary injunction granted by the trial court in respect of item No.2 of the suit property is vacated. It is made clear that in the event the plaintiff succeeds in the suit the appellants shall not be entitled to claim equity. With this observation, the appeal stands disposed of.
Sd/- JUDGE ckl