IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JUNE, 2017 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA MISCELLANEOUS FIRST APPEAL No.2182/2017(CPC) BETWEEN:
SRI. S. A. PUTTARAJU, S/O SRI P.ANJINAPPA, AGED ABOUT 51 YEARS, R/AT MAHESHWARAMMA TEMPLE ROAD, MAHADEVAPURA VILLAGE, K.R.PURAM HOBLI, BENGALURU - 560 048. ... APPELLANT (BY SRI R. S. RAVI, ADVOCATE) AND:
1. RAMAKRISHNA, S/O SRI CHIKKAPPAYYANNA, AGED ABOUT 54 YEARS, SRI CHANDRASHEKAR, S/O LATE VENKATAPPA @ CHIKKABBAIAH, SINCE DEAD REP BY LRS, 2. SMT. NARASAMMA, W/O LATE CHANDRASHEKAR, AGED ABOUT 50 YEARS, 3. MASTER C. NAGESH, S/O LATE CHANDRASHEKAR, AGED ABOUT 18 YEARS, 4. MASTER C NANDISH, S/O LATE CHANDRASHEKAR, AGED ABOUT 16 YEARS, SL. NO.4 IS MINOR REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN SMT. NARASAMMA, SL. NO. 2 TO 4 ARE R/AT MANCHANAPANAHALLI, BUDIGERE POST, JALAHALLI, BENGALURU NORTH TALUK, BENGALURU - 562 129.
5. SRI MUNEGOWDA, S/O LATE VENKATAPPA @ CHIKKABBAIAH, AGED ABOUT 57 YEARS, 6. SRI NAGARAJA, S/O LATE VENKATAPPA @ CHIKKABBAIAH, AGED ABOUT 45 YEARS, 7. SRI ANAND, S/O LATE VENKATAPPA @ CHIKKABBAIAH, AGED ABOUT 41 YEARS, 8. SMT. BHAGYAMMA, W/O MANIRAJU, D/O LATE VENKATAPPA @ CHIKKABBAIAH, AGED ABOUT 51 YEARS, 9. SMT. SUNANDA, W/O SRI MANIRATHNAMMA, D/O LATE VENKATAPPA @ CHIKKABBAIAH, AGED ABOUT 49 YEARS, SL. NO.1,5 TO 9 ARE RESIDING AT MAHADEVAPURA VILLAGE, K.R.PURAM HOBLI, BENGALURU - 560 048.
10. MR. S.R. DEVARAJ, S/O LATEE RAMAPPA, AGED ABOUT 55 YEARS, R/AT 1ST MAIN ROAD, SINGIAHANAPALYA, MAHADEVAPURA POST, BENGALURU - 560 048.
11. MR. MALKAPPA SHIVAPPA HALLI, S/O LATE SHIVAPPA, AGED ABOUT 49 YEARS, R/AT NO. 67/3, 2ND CROSS, N.M.R.LAYOUT, UDAY NAGAR, BENGALURU - 560 016. ... RESPONDENTS (BY SRI DEVENDRA GOWDA, R. R., ADVOCATE FOR C/R1; SMT. N. RAJAMMA, ADVOCATE FOR R2 TO R4; NOTICE ON R5 TO R11 IS DISPENSED WITH V/O DATED 29.06.2017) ...
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER 43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DATED:31.01.2017 PASSED ON IA NO.2 IN O.S.NO.25042/14 ON THE FILE OF THE XXVIII ADDITIONAL CITY CIVIL JUDGE, BENGALURU, DISPOSING IA NO.2 FILED UNDER ORDER 39 RULE 1&2 OF CPC.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The 7th defendant has filed the present miscellaneous first appeal against the order dated 31.1.2017 made in O.S.No.25042/2014 on the file of the XXVIII Additional City Civil and Sessions Judge, Mayohall Unit, Bengaluru (CCH-29) on I.A.II restraining him from interfering with the peaceful possession and enjoyment of the share of the plaintiff in item No.1 of the suit schedule property and also directing the parties to maintain status quo with regard to Item No.1 property described in the plaint schedule and not to do any act which would change the nature of the property as on the date of order.
2. The 1st respondent, who is plaintiff before the trial Court has filed a suit - O.S.No.25042/2014 for partition and separate possession in respect of suit schedule properties morefully described in the schedule to the plaint contending that the plaintiff and defendant Nos.1 to 6 are members of the joint family and there was no earlier partition and hence he is entitled to his share. Defendant Nos. 1 to 6 filed their written statement and supported the case of the plaintiff.
3. Defendant No.7 filed his written statement and denied the entire plaint averments and contended that he was the bonafide purchaser from defendant Nos. 1, 3 and 6 for a valuable consideration and he is in possession and enjoyment of 1 acre 24 guntas out of 2 acres 34 guntas of land in item No.1 of the suit schedule property. Therefore, he contended that the suit against him is not maintainable and sought for dismissal of the suit.
4. During the pendency of the proceedings, the plaintiff filed I.A.I for temporary injunction restraining defendant Nos.2, 4 and 7 from alienating the suit schedule Item No.1 property, I.A.II for temporary injunction restraining defendant No.7 from interfering with the peaceful possession and enjoyment of the share of the plaintiff in item No.1 of the suit schedule property, I.A.IV was filed by the 5th defendant restraining defendant Nos. 1 to 4 and 6 to 9 from alienating or encumbering the property described in the schedule of the written statement.
5. The said applications were resisted by the respective parties by filing objections.
6. The trial Court considering I.As.I, II and IV, by the impugned order dated 31st January, 2017 while disposing of I.As.II and IV restrained the parties from alienating or encumbering the properties described in the plaint schedule and also in the schedule to the written statement of defendant No.5 and also directed the parties to the suit to maintain status-quo as regards item No.1 property described in the plaint schedule and not to do any act which would change the nature of the property as on the date of the order. Hence, the present appeal is filed by the 7th defendant only against the order passed on I.A.II directing the parties to maintain status quo in respect of item No.1 property described in the plaint schedule.
7. I have heard the learned Counsel for the parties to the lis and perused the entire material on record carefully.
8. Sri R.S. Ravi, learned Counsel for appellant- defendant No.7 vehemently contended that the suit is filed for partition and separate possession, but in the application, what is sought is for, is grant of injunction only against defendant No7, restraining him from interfering with the peaceful possession and enjoyment of the plaintiff’s share to the extent of 21964 sq. ft. in item No.1. The trial Court without considering the prayer sought in the application has proceeded to grant injunction in respect of entire item No.1 measuring 2 acres 34 guntas in Sy.No.28/1A situated at Mahadevapura Village, K.R. Puram Hobli, Bangalore East Taluk, Bangalore though in the application except stating his share, the plaintiff has not disclosed the survey number or measurement . Therefore, he sought to set aside the impugned order passed by the trial Court modifying the injunction to the extent of the relief sought for in the application.
9. Per contra, Sri R.R. Devendra Gowda, learned Counsel for respondent No.1/Caveator and Smt N. Rajamma, learned Counsel appearing for respondent Nos. 2 to 4 sought to justify the impugned order passed by the trial Court.
10. I have given my anxious consideration to the arguments advanced by the learned Counsel for the parties and perused the entire material on record.
11. It is also not in dispute that as can be seen from the application – I.A.II filed for temporary injunction by the plaintiff the prayer sought is only against defendant No.7 in respect of his share of 21964 sq.ft. in item No.1 of the suit schedule property though he has filed the suit for partition and separate possession. Unfortunately, the trial Court while granting the injunction has proceeded to grant temporary injunction in respect of the entire survey number measuring 2 acres 34 guntas in Sy.No.28/1A even though the plaintiff has not mentioned the correct boundaries and measurements in the application for temporary injunction. The learned Counsel petitioner fairly submitted that there is a mistake on the part of the learned Counsel for the plaintiff before the trial Court while filing the application, but the fact remains that item No.1-Sy.No.28/1A totally measures 2 acres 34 guntas whereas the plaintiff is in possession of 21964 sq. ft. and 1 acre 24 guntas has been purchased by the appellant-defendant No.7 which is phoded and assigned new survey number. The trial Court ought to have considered the same and would not have granted injunction which was not sought in the application.
12. In view of the aforesaid submissions made, it is appropriate to modify the interim order passed by the trial Court restricting injunction granted on I.A.II against defendant No.7 only in respect of the share of plaintiff i.e., 21964 sq. ft. as pleaded in the application.
13. For the reasons stated above, the impugned order dated 31.1.2017 passed on I.A.II in O.S.No.25042/2014 on the file of the XXVIII Additional City Civil Judge, Mayohall Unit, Bengaluru (CCH-29) is modified. The status quo granted by the trial Court is confined only with regard to the prayer sought in the application i.e., plaintiff’s share -21964 sq. ft. and the status quo in respect of the remaining entire property is vacated. Accordingly, the appeal is allowed in part.
Ordered accordingly.
Sd/- Judge Nsu/-