Allowed

Sapna Shetty v. Sudhakara Shetty

Karnataka HC22 Jun 2022MFA/1023/2022

Case brief

AI extract

What is this about?

In a miscellaneous first appeal under Order 43 Rule 1(r) CPC, the High Court of Karnataka set aside a lower court order restraining appellants from constructing a farmhouse on Sy. No. 186/20. The Court held the construction does not impede partition rights given the appellants' undertaking not to claim equity.

What did the court decide?

Impugned order of 14.01.2022 restraining appellants from construction of a farmhouse in Sy. No. 186/20 is modified.

Sapna Shetty Vs Sudhakara Shetty — Civil Procedure and Limitation | Karnataka HC (2022)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 22^ND DAY OF JUNE, 2022

¶4

BEFORE

¶5

THE HON’BLE MR.JUSTICE B.M.SHYAM PRASAD

¶6

MISCELLANEOUS FIRST APPEAL NO.1023/2022 (CPC)

¶7

BETWEEN:

¶8

SAPNA SHETTY AGED ABOUT 31 YEARS, D/O LATE JAYANTHI SHETTY W/O ROHITH SHETTY RESIDING AT VIKRAM ASHOK NAGAR, ASHIRVAD PO SANTHEKATTE - 576 105 PUTTUR VILLAGE UDUPI TALUK.

¶9

PRIYANKA SHETTY AGED ABOUT 29 YEARS, D/O LATE JAYANTHI SHETTY 2^ND FLOOR, GSJ ROYALE BUILDING SANTHEKATTE - 576 105 PUTTUR VILLAGE, UDUPI TALUK.

¶10

BABY ARADHANA SHETTY BY HER MOTHER SAPNA SHETTY AGED ABOUT 03 YEARS, D/O LATE JAYANTHI SHETTY W/O ROHITH SHETTY RESIDING AT VIKRAM ASHOK NAGAR, ASHIRVAD PO SANTHEKATTE 576105 PUTTUR VILLAGE UDUPI TALUK.

¶11

... APPELLANTS

¶12

(BY SRI. AJITH A SHETTY, ADVOCATE)

¶13

¶14

AND:

¶15

SUDHAKARA SHETTY AGED ABOUT 65 YEARS, S/O LATE KALAPPA SHETTY,

¶16

VASANTHI SHETTY AGED ABOUT 60 YEARS, D/O LATE KALAPPA SHETTY

¶17

VINODHA SHETTY AGED ABOUT 60 YEARS, D/O LATE KALAPPA SHETTY

¶18

USHA SHETTY AGED ABOUT 65 YEARS, D/O LATE KALAPPA SHETTY

¶19

SAGAR SHETTY AGED ABOUT 35 YEARS, S/O SHEKHARA SHETTY

¶20

SACHIN SHETTY AGED ABOUT 33 YEARS, S/O SHEKHARA SHETTY

¶21

SANDEEP SHETTY AGED ABOUT 32 YEARS, S/O LATE SHEKHARA SHETTY

¶22

SHREYA SHETTY AGED ABOUT 25 YEARS, D/O LATE SHEKHARA SHETTY

¶23

PRABHAVATHI SHETTY AGED ABOUT 65 YEARS, W/O LATE PRABHAKAR SHETTY

¶24

PRASHANTH SHETTY AGED ABOUT 44 YEARS,

¶25

¶26

S/O LATE PRABHAKAR SHETTY

¶27

PRASHALINI SHETTY AGED ABOUT 43 YEARS, D/O LATE PRABHAKAR SHETTY

¶28

SHOBHA SHETTY AGED ABOUT 41 YEARS, D/O LATE PRABHAKAR SHETTY

¶29

SHANTI SHETTY AGED ABOUT 38 YEARS, D/O LATE PRABHAKAR SHETTY NO. 1 TO 13 ARE RESIDIDNG AT "AMBIKA" NETAJINAGAR,1^ST CROSS, CHANTHARU ROAD BRAHMAVAR TALUK, UDUPI DISTRICT - 576 213.

¶30

SOWMYA SHETTY AGED ABOUT 45 YEARS, W/O LATE DINAKAR SHETTY,

¶31

SANNIDHI SHETTY AGED ABOUT 20 YEARS, D/O LATE DINAKAR SHETTY NO. 14 AND 15 ARE R/AT SANNIDHI, DUGGANABETTU, NEAR TALUK OFFICE KUKKUNDOOR, KARNATAKA.

¶32

RAGHU SHETTY AGED ABOUT 65 YEARS, S/O LATE JAGANNATHA SHETTY

¶33

GULABI SHEDTHI AGED ABOUT 68 YEARS, D/O LATE JAGANNATHA SHETTY

¶34

KAMALAMMA SHEDTHI AGED ABOUT 71 YEARS,

¶35

¶36

	D/O LATE JAGANNATHA SHETTY
19.	SUMATHI SHEDTHU AGED ABOUT 62 YEARS, W/O LATE DAYANANDA SHETTY,
20.	DIVAKARA SHETTY AGED ABOUT 40 YEARS, S/O LATE DAYANANDA SHETTY,
21.	VEENA SHETTY AGED ABOUT 35 YEARS, D/O LATE DAYANANDA SHETTY,
22.	BALAKRISHNA SHETTY AGED ABOUT 62 YEARS, S/O LATE RADHAMMA SHEDTHI,
23.	SHANTHAMMA SHEDTHI AGED ABOUT 60 YEARS, D/O LATE RADHAMMA SHEDTHI,
24.	SUMA SHEDTHI AGED ABOUT 55 YEARS, D/O LATE RADHAMMA SHEDTHI
	NOS. 16 TO 24 ARE RESIDING AT SHUBAS ROAD KOPPA TALUK PO KOPPA CHICKMAGALUR DISTRICT 577 126.
25.	SMT VANAJAKSHI SHEDTHI D/O PADDU SHEDTHI, AGED ABOUT 78 YEARS, RESIDING AT MOODABETTU MOODUTHONSE VILLAGE UDUPI - 576 201.
26.	SMT VISHALAKSHI SHEDTHI
	D/O LATE PADDU SHEDTHI

¶37

¶38

AGED ABOUT 60 YEARS, RESIDING AT MILK DAIRY THUDUR P O THIRTHAHALLI TALUK SHIMOGA DISTRICT 577432.

¶39

SRI SHAMBU SHETTY S/O LATE DEVAMMA SHETTY, AGED ABOUT 85 YEARS, RESIDING AT KRIPA NIDHI NEAR IDEAL MEDICAL SUPPLIES ROYAL GARDEN P O KUNJIBETTU UDUPI 576102

¶40

SMT SARALA PRASAD SHETTY D/O VANAJAKSHI SHEDTHI, AGED ABOUT 53 YEARS, RESIDING AT NO 20 INDRALOK APARTMENT KAMATHWADE ROAD, ABHIYANTHANAGAR, NEAR DHANVANTHRI COLLEGE NASIK 422208 MAHARASHTRA.

¶41

SRI RAVINDRA SHETTY S/O VANAJAKSHI SHEDTHI, AGED ABOUT 55 YEARS, RESIDING AT SRI DURGA BHANDASALE OPP TELEPHONE EXCHANGE THEKKATTE KUNDAPURA 576231 UDUPI.

¶42

SRI K DHARMENDRA SHETTY S/O VANAJAKSHI SHEDTHI, AGED ABOUT 51 YEARS, RESIDING AT MOODABETTU MOODUTHONSE VILLAGE UDUPI 576 201.

¶43

SRI ADARSH SHETTY S/O VISHALAKSHI SHEDHI AGED ABOUT 32 YEARS,

¶44

¶45

RESIDING AT MILK DAIRY THUDUR P O THIRTHAHALLI TALUK, SHIMOGA DISTRICT 577 432.

¶46

SMT ANUSHA PRASAD SHETTY D/O VISHALAKSHI SHETTY AGED ABOUT 34 YEARS, RESIDING AT MILK DAIRY, THUDUR P O THIRTHAHALLI TALUK, SHIMOGA DISTRICT - 577 432.

¶47

SMT AISHWARYA PRASAD SHETTY D/O PRASAD SHETTY, AGED ABOUT 27 YEARS RESIDING AT NO 20 INDRALOK APRTMENT KAMATHWADE ROAD, ABHIYANTHANAGAR NEAR DHANVANTHRI COLLEGE NASIK 422208, MAHARASHTRA.

¶48

SMT VAISHNAVI PRASAD SHETTY D/O PRASAD SHETTY AGED ABOUT 23 YEARS, RESIDING AT NO 20 INDRALOK APARTMENT KAMATHWADE ROAD, ABHIYANTHANAGAR, NEAR DHANVANTHRI COLLEGE NASIK 422 208.

¶49

SRI CHANDRASHEKAR SHETTY HUSBAND OF LATE JAYANTHI SHETTY, AGED ABOUT 66 YEARS, RESIDING AT 2^ND FLOOR GSJ ROYALE BUILDING SANTHEKATTE, PUTTUR VILLAGE UDUPI 576105.

¶50

¶51

BABY AADHYA SHETTY MINOR IN AGE HENCE BY HER MOTHER SMT ANUSHA SHETTY D/O VISHALAKSHI SHEDTHI, AGED ABOUT 34 YEARS, RESIDING AT MILK DAIRY THUNDRU P O THIRTHAHALLI TLAUK, SHIMOGA DISTRICT 577 432.

¶52

... RESPONDENTS

¶53

(BY SRI.SACHIN.B.S, ADVOCATE FOR R1 TO R24; NOTICE TO R.25 TO R.36 IS DISPENSED WITH VIDE ORDER DATED 04.03.2022)

¶54

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 14.01.2022 PASSED ON I.A.NO.III IN OS.NO.107/2021 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, UDUPI, ALLOWING THE I.A.NO.III FILED UNDER ORDER 39 RULE 1 AND 2 OF CPC.

¶55

THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

¶56

JUDGMENT

¶57

The appellants are the twelfth, thirteenth and fifteenth defendants in O.S.No.107/2021 on the file of the II Additional Senior Civil Judge and JMFC, Bengaluru (for short, 'the Civil Court '), and they have impugned the civil Court's order dated 14.01.2022. The civil Court by this impugned order has restrained the

¶58

¶59

appellants from alienating or changing the nature of the property or proceeding with the further construction in the properties described in schedule 'A' of the plaint.

¶60

Sri Ajith A. Shetty, the learned counsel for the appellants, is categorical that the appellants have confined this appeal only insofar as there is a restraint order stopping them from putting up construction in Sy.No.186/20 of Mooduthonse, Udupi Taluk ( item No.7 of the schedule 'A' property, and hereafter referred to as 'the Subject Property' ) and otherwise they are not aggrieved by the impugned order. As regards the construction in the subject property, the learned counsel submits that the appellants, who claim absolute right in this property pursuant to a prior partition and the subsequent transfer/s, are categorical that they are only constructing a farmhouse and they would not claim any equity in the event the plaintiffsrespondents succeed in their claim for partition. The

¶61

¶62

learned counsel draws the attention of this Court to the statement in this regard in paragraph 24 of the statement of objection, and the reiteration of such statement in the appeal memorandum in paragraph 14.

¶63

Sri Ajith A. Shetty further submits that the civil Court has restrained the appellants from proceeding with construction on a misreading of the photographs and opining that the construction by the appellants cannot be called a farmhouse by any stretch of imagination. He submits that the construction is only for the purposes of residence as part of the farming in the adjacent lands. On the other hand, Sri B. S. Sachin, the learned counsel for the respondent, relies upon the civil Court's observation and submits that if the appellants are undertaking construction which is not a farmhouse, notwithstanding the undertaking that they will not claim any equity, no exception can be taken with the impugned order.

¶64

10 -

¶65

Perused the photographs relied upon by the appellants. This Court must opine that the construction, as seen in these photographs, cannot be called a massive construction which would result in creation of third-party rights or otherwise in any manner impede the respondents/plaintiffs' rights in the event they succeed in their claim for partition by metes and bounds. Significantly, the appellants' exclusive possession of the subject property is not under contest. This Court, with the appellants reiterating that they will not claim any equity because of the construction in the aforesaid land, is of the considered view that the civil Court has erred, in the facts and circumstances of the case, in restraining the appellants from putting up construction in the subject property.

¶66

11 -

¶67

Therefore, the appeal is allowed modifying the impugned order dated 14.01.2022 in O.S.No.107/2021 on the file of the II Additional Senior Civil Judge and JMFC, Udupi insofar as the appellants are restrained from putting up construction of a farmhouse in Sy.No.186/20 of Mooduthonse village, Udupi Taluk. It is observed that if the appellants proceed with the construction, they shall not claim any equity either in the subject property or in such construction if the respondents succeed in their claim.

¶68

SA Ct:sr

Sapna Shetty v. Sudhakara Shetty

Case brief

What is this about?

What did the court decide?

Sapna Shetty v. Sudhakara Shetty

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Smt. Rathnamma Vs the Deputy Commissioner

Mr. Kareppa Birannavar Vs Union of India

Smt Neelakumari Vs Smt Sheela Sandesh

Sri T C Udaya Kumar Vs M/S Santhosh Shelters Pvt. Ltd.

Ms. Payal Sandhu Khurana Vs Alabama Design Consultants LLP

M/S 3F Industries Limited Vs Karnataka Soaps and Detergents Limited