Allowed

Sri Shekar v. Kumari Vijayalakshi S

Karnataka HC20 Jul 2022MFA/347/2022

Case brief

AI extract

What is this about?

The High Court of Karnataka disposed of a first appeal against an interim order preventing a co-appellant (defendant) from altering the nature of suit schedule property. The Court held that since construction was nearly complete and exclusive possession admitted, the interim injunction was improper. The order was set aside without prejudice to final partition rights.

What did the court decide?

Impugned order dated 4.12.2021 staying construction is set aside.

Sri Shekar Vs Kumari Vijayalakshi S — Partition | Karnataka HC (2022)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 20^TH DAY OF JULY, 2022

¶4

BEFORE

¶5

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

¶6

MISCELLANEOUS FIRST APPEAL NO.347/2022 (CPC)

¶7

BETWEEN:

¶8

SRI SHEKAR AGED ABOUT 45 YEARS S/O SMT PANKAJA R/AT NO.210 8^TH CROSS, 3^RD MAIN 2^ND PHASE MANJUNATH NAGAR BENGALURU - 560 010.

¶9

SMT PANKAJA AGED ABOUT 55 YEARS W/O LATE SRI SUBRAMANI R/AT NO.210 8^TH CROSS, 3^RD MAIN, 2^ND PHASE MANJUNATH NAGAR BENGALURU - 560 010.

¶10

SMT MANJULA AGED ABOUT 35 YEARS D/O LATE SRI SUBRAMANI AND SMT PANKAJA R/AT NO.210 8^TH CROSS, 3^RD MAIN, 2^ND PHASE MANJUNATH NAGAR BENGALURU 560 010.

¶11

... APPELLANTS (BY SRI. MADHUKAR NADIG, ADVOCATE)

¶12

¶13

AND:

¶14

KUMARI VIJAYALAKSHI S AGED ABOUT 21 YEARS DAUGHTER OF SREENIVASALU YADAV AND LATE SMT.KOKILA R/AT NO.290/A C K PALYA, VASAVI LAYOUT SAKKALAVAR POST, B G ROAD ANEKAL TALUK, BENGALURU - 560 083.

¶15

MASTER SANTHOSH KUMAR S AGED ABOUT 19 YEARS DAUGHTER OF SREENIVASALU YADAV AND LATE SMT KOKILA R/AT NO.290/A C K PALYA VASAVI LAYOUT SAKKALAVARA POST B G ROAD, ANEKAL TALUK BENGALURU - 560 083.

¶16

SRI SRINIVASALU YADAV K AGED ABOUT 47 YEARS HUSBAND OF LATE SMT KOLILA R/AT NO.290/A C K PALYA VASAVI LAYOUT SAKKALAVAR POST B G ROAD, ANEKAL TALUK BENGALURU - 560 083.

¶17

... RESPONDENTS (NOTICE TO R1 TO R3 HELD SUFFICIENT VIDE ORDER DATED 01.07.2022)

¶18

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER 43 RULE 1 OF CPC, AGAINST THE ORDER DATED 04.12.2021 PASSED ON I.A. NO. 1 IN O.S.NO.4360/2021 ON THE FILE OF THE LXVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY (CCH-67), ALLOWING I.A. NO.1 FILED UNDER ORDER XXXIX RULES 1 AND 2 READ WITH SECTION 151 OF CPC.

¶19

¶20

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

¶21

JUDGMENT

¶22

This appeal is by the defendants in

¶23

O.S.No.4360/2021 on the file of the LXVI Additional City Civil and Sessions Judge, Bengaluru [for short, ‘ the civil Court’ ]. The appellants have impugned the civil Court's order dated 4.12.2021 allowing the respondents-plaintiffs' application (IA.1) under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure 1908 (for short, 'the CPC' ) restraining the appellants from altering the nature of the suit schedule property - a residential property described as a site bearing No.113 (New No.236) in Sy.No.21/4 of Shivanahalli village, Manjunatha Nagar, 1^st stage, 2^nd Phase, West of Cord Road, Bengaluru (the Subject Property).

¶24

The learned counsel for the appellants is heard on multiple occasions and is also heard today for

¶25

¶26

final disposal. This Court has repeatedly adjourned the appeal to enable opportunities to the respondents to be represented. However, none appears for the respondents.

¶27

The dispute is amongst the family members and the suit in O.S.No.4360/2021 is for partition of the subject property. The second appellant is the mother and the first and third appellants and Smt.Kokila [who is no more and is survived by her husband and children

¶28

the respondents] are her children. Undisputedly, the subject property is purchased in the first appellant's name.

¶29

While the respondents contend that the subject property is purchased utilizing the joint family funds and income generated by the mother (the second appellant), the appellants contend that the subject property is the first appellant's absolute property. The civil Court has opined that whether the subject property

¶30

¶31

is the first appellant's property or not is a matter of trial, and though the first appellant contends that he has availed loan for commencing construction, he cannot be permitted to change the nature of the property.

¶32

Sri Madhukar Nadig, the learned counsel for the appellants, submits that even before the commencement of the suit, the first appellant has commenced construction. Except for finishing work, the construction is complete. He relies upon certain photographs to bolster his submission in this regard. He canvasses that the civil Court has allowed the application restraining the first appellant to proceed with the construction only because of the respondents' assertion that the property is purchased from the joint family/mother's fund without examining the balance of convenience and hardship.

¶33

¶34

It is settled that where it is admitted that a

¶35

co-owner is in exclusive possession of the property, he cannot be injuncted from utilising or developing the same. The first appellant has almost completed construction as is prima facie seen from the photographs relied upon by the appellants, and this demonstrates exclusive possession as of the date of the impugned order. If this construction is completed and used by the appellants [the other family members], the respondents' right in the subject property, if they succeed in establishing the same, would not be prejudiced as the respective rights will have to be decided notwithstanding such construction.

¶36

The civil Court has not considered this

¶37

material circumstance and therefore, this Court must interfere and set aside the impugned order observing that if the appellants complete the construction, they cannot claim any equity and in the event the

¶38

¶39

respondents succeed in the suit, such construction must be part of the equities that will have to be worked out as would be permissible in law.

¶40

The appeal stands disposed of accordingly.

¶41

SD/JUDGE

¶42

SA Ct:sr

Sri Shekar v. Kumari Vijayalakshi S

Case brief

What is this about?

What did the court decide?

Sri Shekar v. Kumari Vijayalakshi S

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

Sri K P Champakadhamaswamy Vs Sri M G Narayanaswamy

Smt. S. Parvathi Vs Sri. K.Mohan

M U Achaiah Vs the Agriculture Produce Co. Operative Marketing Society (Apcms)

M/S Century Shelters Vs Smt v Sujatha

M/S Vishwarupa Industries Ltd. Vs Sri a C Anantha Swamy

Sourav Mukerjee Vs Nobroker Technologies Solutions Pvt. Ltd.