Disposed

Smt. Chennamma v. Sri. Hanumanthappa

Karnataka HC9 Dec 2022MFA/8333/2022

Case brief

AI extract

What is this about?

On appeal against the dismissal of an application for temporary injunction in a partition suit, the High Court disposed of the appeal. It permitted the defendant to complete construction subject to the suit's outcome without claiming equity and directed them to file an undertaking not to alienate the property.

What did the court decide?

The defendant is permitted to complete construction subject to the result of the suit without claiming any equity and to file an undertaking not to alienate any portion of the suit property during pen

Smt. Chennamma Vs Sri. Hanumanthappa — Partition | Karnataka HC (2022)

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MFA No. 8333 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF DECEMBER, 2022

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BEFORE

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THE HON'BLE MR JUSTICE RAVI V HOSMANI MISCELLANEOUS FIRST APPEAL NO.8333 OF 2022 (CPC)

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BETWEEN:

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SMT. CHENNAMMA, W/O LATE LAKKAPPA, AGED ABOUT 56 YEARS, R/AT DODDI BEEDI, RAMOHALLI VILLAGE, RAMOHALLI POST, KENGERI HOBLI, BANGALORE - 560 074.

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…APPELLANT

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(BY SRI. SHARATH S GOWDA., ADVOCATE)

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AND:

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SRI. HANUMANTHAPPA, S/O LATE CHELUVAIAH, AGED ABOUT 75 YEARS,

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Digitally signed by GURURAJ D Location: High Court Of Karnataka

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R/AT RAMOHALLI VILLAGE, RAMOHALLI POST, KENGERI HOBLI, BANGALORE - 560 074.

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…RESPONDENT

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(BY SRI.Y.R.SADASIVA REDDY, SENIOR COUNSEL FOR SRI.AKKI MANJUNATH GOWDA, ADVOCATE FOR C/R1)

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MFA No. 8333 of 2022

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THIS MFA IS FILED U/O.43 RULE 1(r) R/W SEC.151 OF CPC, AGAINST THE ORDER DATED 29.11.2022 PASSED ON IA NO.1 IN O.S.NO.728/2022 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, REJECTING IA NO.1 FILED U/O.39 RULE 1 AND 2 OF CPC.

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

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JUDGMENT

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Challenging impugned order dated 29.11.2022 passed on I.A.1 in O.S.no.728/2022 by II Additional Senior Civil Judge, Bangalore Rural District, Bangalore (hereinafter referred to as 'trial Court' for short), this appeal is filed.

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Appellant herein was plaintiff, while respondent herein was defendant before trial Court.

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Plaintiff had filed O.S.no.728/2022 for partition

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and separate possession in respect of suit property. In said suit, I.A.1 was filed for temporary injunction restraining defendant from putting up any construction in

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MFA No. 8333 of 2022

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suit property. It was submitted that initially trial Court had granted injunction on 29.03.2022. Upon entering appearance of defendant and filing of written statement/objections, trial Court considered I.A.1 and dismissed application. Challenging said order, this appeal is filed.

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Learned counsel for appellant submitted that suit property was purchased by plaintiff's husband Mr.Lakkappa and was his self-acquired property. He was suffering from cancer prior to his death. He gifted suit property to plaintiff. Defendant being brother of her husband trying to interfere with plaintiff's possession. Therefore, plaintiff had earlier filed OS.no.1066/2021 for permanent injunction. Upon entering appearance in said suit, since defendant disputed plaintiff's title and possession, instant comprehensive suit was filed. It was submitted that in violation of injunction granted, defendants were putting up construction and therefore,

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MFA No. 8333 of 2022

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since plaintiff is having title in respect of suit property,

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trial Court was erred in vacating injunction.

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Learned counsel further submitted that I.A.1/2022 is filed for restraining defendant from alienating/creating third party interest over suit property. I.A.2/2022 is filed for restraining defendant from putting up further

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construction.

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Sri. Y.R.Sadasiva Reddy, learned Senior counsel for defendant submitted that main reason assigned by trial Court for rejecting application was filing of earlier suit, wherein application for temporary injunction was rejected. trial Court further observed that construction by defendant was almost completed.

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Learned Senior counsel further submitted that defendant had acquired rights in respect of suit property under a Palupatti dated 18.07.1975 and Settlement Deed dated 29.09.1985. It was further submitted that admittedly plaintiff was not in possession. Therefore,

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MFA No. 8333 of 2022

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appeal is devoid of merits. He submitted that defendant would undertake to proceed with construction which would be subject to result of suit and would undertake not to claim any equity in case plaintiff succeeds in appeal.

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It was further submitted that defendant would undertake not to alienate any portion of suit property during pendency of suit.

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At this stage, learned counsel for appellant submitted that by taking submission of defendant on record, appeal may be disposed of. He further sought for direction to defendant to deposit rental income from construction.

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Insofar as prayer for issuance of direction to defendant for depositing rental income, learned Senior counsel submitted that such prayer is not made in suit and opposed it. However, he reiterated undertaking insofar as construction and non-alienation.

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MFA No. 8333 of 2022

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Placing above submission on record, I pass

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following:-

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ORDER

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Appeal is disposed of.

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Defendant is permitted to complete construction subject to result of suit without claiming any equity and

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file an undertaking not to alienate any portion of suit property during pendency of suit.

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Insofar as mesne profits, liberty is reserved to

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plaintiff to seek for such relief before trial Court, if so advised.

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Defendant to file undertaking affidavit with Registry

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within two weeks.

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Sd/JUDGE

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MKM List No.: 1 Sl No.: 30

Smt. Chennamma v. Sri. Hanumanthappa

Case brief

What is this about?

What did the court decide?

Smt. Chennamma v. Sri. Hanumanthappa

Case brief

What is this about?

What did the court decide?

What the court decided

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