IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF APRIL, 2019 BEFORE THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR M.F.A. NO.5206 OF 2016 (CPC) BETWEEN:
SRI. SHIVAPRAKASH D.R., S/O LATE RUDRAIAH, AGED ABOUT 53 YEARS, R/AT 3RD CROSS, 1ST MAIN, SREENAGAR, DEVARAYAPATNA POST, TUMKUR TALUK, TUMKUR DISTRICT – 572103. ... APPELLANT (BY SRI SHANMUKHAPPA, ADVOCATE FOR SRI T S CHANDRAPRABHA, ADVOCATE) AND:
SHIVANNA, SINCE DEAD BY HIS LRS, 1(a) D.S. SHANKAR, SINCE DEAD BY HIS LRS, 1 (a) (a). GANGAMBIKA R S, W/O LATE D.S.SHANKAR, AGED ABOUT 52 YEARS.
1.(a) (b).SANTHOSH D S, S/O LATE D.S.SHANKAR, AGED ABOUT 27 YEARS, 1.(a) (c).LAVANYA D S, D/O LATE D.S.SHANKAR, AGED ABOUT 29 YEARS.
1(a) (d).LOHITH D S, S/O LATE D.S.SHANKAR, AGED ABOUT 19 YEARS.
1(b) D SARVAMANGALAMMA, W/O LATE D.S. SIDDALINGASWAMY, AGED ABOUT 50 YEARS.
1(c). D S JAYANNA, S/O LATE D SHIVANNA, AGED ABOUT 48 YEARS, ALL ARE RESIDING AT WARD NO. 35, DEVARAYAPATNA POST, KASABA HOBLI, TUMKUR – 572103.
2.BHADRAIAH DEAD BY HIS LRS, 2(a) PARVATHAMMA, W/O LATE BHADRAIAH, AGED ABOUT 86 YEARS, R/O KULAVANHALLI AT POST DABASPET, NELAMANGALA TALUK, BANGALORE RURAL DISTRICT – 562111.
2 (b).HONNAGANGAIAH S/O LATE BHADRAIAH, AGED ABOUT 53 YEARS.
2 (c).LOKESH S/O LATE BHADRAIAH, AGED ABOUT 51 YEARS.
2(d).JAYANNA S/O LATE BHADRAIAH, AGED ABOUT 47 YEARS.
2(b) to 2(d) ARE RESIDENTS OF WARD NO. 35, DEVARAYAPATNA POST, TUMKUR.
2(e).RAJASHEKARAIAH S/O LATE BHADRAIAH, AGED ABOUT 47 YEARS, R/O NAGAVALLI AT POST, HEBBUR HOBLI, TUMKUR TALUK – 572103.
2(f).SIDDAGANGAIAH, S/O LATE BHADRAIAH, AGED ABOUT 45 YEARS, R/O KARADIGERE, MAKANAHALLI POST, HEBBUR HOBLI, TUMKUR TALUK – 562221.
2(g).DHRAKSHAYANAMMA, D/O LATE BHADRAIAH, W/O LATE ESHWARAIAH, AGED ABOUT 43 YEARS, R/AT DUDDERI, KULUVANAHALLI POST, NELAMANGALA TALUK, BANGALORE RURAL DISTRICT -562111.
2(h).NIRMALA, D/O LATE BHADRAIAH, W/O SOMASHEKAR, AGED ABOUT 48 YEARS, R/O NO. 8149, 1ST MAIN, 1ST CROSS, MANJUNATHA NAGAR, BANGALORE – 560010.
3.BASAVARAJ, S/O GANGAPPA, SINCE DEAD BY HIS LRs.
3(a) SMT.LATHA D.B, W/O RUDRESHA V, D/O LATE BASAVARAJ, AGED 40 YEARS, DEVARAYAPATNA, PETE BEEDHI, DEVARAYAPATNA POST, TUMKUR – 572104.
4.D.H. GANGADHARAIAH, SINCE DEAD BY HIS LRS 4(a) SHASHIKALA, W/O LATE D.H. GANGADHARAIAH, AGED ABOUT 72 YEARS.
4(b).SOWBHAGYA D G, W/O GURUMURTHY R, D/O D.H.GANGADHARAIAH AGED ABOUT 50 YEARS, R/O VEERABHADRASWAMY NILAYA, 7TH C MAIN ROAD, PRASANTHA NAGARA, DEVARAYA PATNA POST, TUMKUR – 572103.
4(c).NEELAMBIKA D G, W/O LINGADEVARU, D/O D.H.GANGADHARAIAH AGED ABOUT 48 YEARS, 4(a) AND 4(c) ARE RESIDENTS OF DEVARAYAPATNA, TUMKUR DISTRICT – 572103.
4(d).VISHALAKSHI D G, W/O SIDDALINGAPPA, D/O D.H. GANGADHARAIAH, AGED ABOUT 46 YEARS, R/AT MARANAYAKANAPALYA, DEVARAYAPATNA POST, TUMKUR – 572103.
4 (e).NALINAKUMARI D G W/O RUDRESH, D/O D.H. GANGADHARAIAH, AGED ABOUT 44 YEARS, R/O C/O K.G.MAHADEVAIAH, NO. 211, 12TH MAIN ROAD, 14TH CROSS, HOYSALANAGARA, VISHWANEEDAM POST, BANGALORE - 560 091.
5. D.H. CHANDRAIAH, S/O HONNA GANGAIAH, AGED ABOUT 51 YEARS. DEVARAYAPATNA, TUMKUR DISTRICT-572103 6.SRI. BASAVARAJU @ SHASEDHARA, S/O LATE RUDRAIAH, AGED ABOUT 55 YEARS.
7.SRI. SHIVAKUMAR, S/O LATE RUDRAIAH, AGED ABOUT 57 YEARS.
8.SRI.ESWARAMURTHY, S/O LATE RUDRAIAH, AGED ABOUT 54 YEARS.
9.SRI.KRUPANIDHI, S/O LATE RUDRAIAH, AGED ABOUT 50 YEARS.
10.SRI. SURESH, SINCE DEAD BY HIS LRs 10(a).SMT.M.V.NAGARATHNA, W/O LATE D.SURESH, AGED 44 YEARS, WORKING AS FDA, ADMINISTRATIVE SECTION, ZILLA PANCHAYATH, TUMKUR – 572102.
10(b).MASTER.JEEVAN D.S, S/O LATE D.SURESH, AGED 06 YEARS, SINCE MINOR REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN, SMT.M.V.NAGARATHNA, D/O LATE D.SURESH, WORKING AS FDA, ADMINISTRATIVE SECTION, ZILLA PANCHAYATH, TUMKUR – 572102.
11.SMT. PUTTALINGAMMA W/O LATE RUDRAIAH, AGED ABOUT 77 YEARS.
RESPONDENTS 6 TO 11 ARE THE RESIDENTS OF DEVARAYAPATNA, TUMKUR TALUK TUMKUR DISTRICT-572103. RESPONDENTS (BY SRI VIRUPAKSHAIAH P H, ADVOCATE FOR R1A, R1A (A TO C), R1(B), R1(C), R2(A TO H), R3(A), R4(A TO E) SRI N SURESH, ADVOCATE FOR R10(A&B), R7 TO R9 AS LRs of R11, R1A(D), R5, R6 – SERVED UNREPRESENTED) **** THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,1908 AGAINST THE ORDER DATED 19.08.2015 PASSED ON I.A.NO.2 IN R.A.NO. 71/2015 ON THE FILE OF THE II ADDITIONAL DISTRICT JUDGE, TUMKUR, ALLOWING I.A. NO.2 FILED UNDER ORDER 39 RULE 1 & 2 READ WITH SECTION 151 OF CPC.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Heard learned counsels for the appellant and respondents.
2. This appeal is filed by the defendant No.1(d) for setting aside the impugned order dated 19.08.2015 passed on I.A. No.2 under Order 39 Rule 1 and 2 of CPC, by the II Addl. District & Sessions Judge, Tumakuru, in R.A. No.71/2015.
3. The facts briefly stated are that the plaintiffs had filed a suit for partition and separate possession claiming 1/5th share to plaintiff Nos.1 to 3 each and 1/5th share to plaintiff Nos.4 and 5 together. The said suit was partly decreed holding that legal representatives of plaintiff Nos.1(a) to 1(c) together are entitled to 1/5th share, legal representatives of plaintiff No.2 i.e., plaintiff Nos.2(a) and (h) together are entitled to 1/5th share, plaintiff No.3 is entitled for 1/5th share, legal representatives of plaintiff Nos.4 and 5 together entitled for 1/5th share and legal representatives of defendant No.1 i.e., defendant No.1(a) to (g) together entitled to 1/5th share in suit item Nos.1 to 5 and 7. Suit in respect of Item Nos.6 and 8 to 21 are dismissed. Being aggrieved by the said judgment and decree, the plaintiffs had preferred an appeal which was numbered as R.A. No.71/2015 pending before the II Addl. District & Sessions Judge, Tumakuru.
4. The plaintiffs had filed I.A. No.2 under Order 39 Rule 1 and 2 read with Section 151 of CPC before the II Addl. District & Sessions Judge, Tumakuru, in R.A. No.71/2015. The said application was allowed by an order dated 19.08.2015 restraining the defendants, their agents, henchmen, etc., from alienating the schedule properties and creating third party interest, till disposal of the appeal. The defendant/appellant has challenged the order passed on I.A.
5. The main contention of the counsel for the defendant/appellant is that there were no interim orders during the pendency of the proceedings before the trial court. It is only after filing of the Regular Appeal, the plaintiffs have filed I.A. with an ulterior motive. The plaintiffs have been protracting the litigation on one or the other pretext. In view of the interim order passed by the first appellate court, the appellant is put to great hardship and injustice.
6. Per contra, the learned counsel for the plaintiffs/respondents submitted that after passing of the preliminary decree by the trial court, the defendants were making attempts to alienate some of the schedule properties in respect of which, the plaintiffs claim has been rejected by the trial Court. Therefore, the first appellate court has passed an order to protect the interest of co-sharers in the family. There are no valid grounds to interfere with the impugned order.
7. The impugned order is challenged on several grounds. During the course of arguments, both counsels have submitted that suit for partition was filed in the year 1991, which was partly decreed in the year 2015. Thereafter, the Regular Appeal is preferred and for the past four years, no progress has been done. The impugned order is only to restrain the appellants from alienating the suit schedule properties. Both Counsels have agreed to co-operate for early hearing of the regular appeal on merits.
8. Considering the submissions of both counsels, this Court is of the opinion that necessary direction may be issued for early disposal of the Regular Appeal by continuing the interim order, till disposal of the Regular Appeal.
9. For the foregoing reasons, the appeal is disposed of with a direction to the II Addl. District & Sessions Judge, Tumakuru, to dispose of R.A. No.71/2015 expeditiously and both parties shall cooperate for early disposal of the Regular Appeal, preferably within six months.
Sd/- JUDGE SJ