Partly allowed

Sri Venkatesha v. Smt. Rathnamma

Karnataka HC17 Mar 2023MFA/897/2023

Case brief

AI extract

What is this about?

The High Court of Karnataka modified an interim injunction order in a partition suit. The court restricted the respondent's permission to reconstruct a tea stall to only 250 sq. ft. of the property, excluding the disputed portion, pending the suit's final outcome.

What did the court decide?

Modified the interim injunction to permit reconstruction of a tea stall/shop in a portion of the property to an extent of around 250 sq. ft. after obtaining necessary permission/clearance.

Sri Venkatesha Vs Smt. Rathnamma — Partition | Karnataka HC (2023)

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MFA No. 897 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 17^TH DAY OF MARCH, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR MISCELLANEOUS FIRST APPEAL NO. 897 OF 2023 (CPC)

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BETWEEN:

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SRI VENKATESHA S/O VENKATE GOWDA AGED 45 YEARS R/AT 22^ND WARD, 5^TH DIVISION KURUBAGERI HOSURU GUNDLUPET TOWN CHAMARAJANAGAR DISTRICT 571 111

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…APPELLANT

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(BY SRI. MUNIYAPPA., ADVOCATE)

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AND:

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Digitally signed by CHANDANA B M Location: High Court of Karnataka

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SMT. RATHNAMMA D/O VENKATE GOWDA AGED 48 YEARS R/AT 22^ND WARD, 5^TH DIVISION KURUBAGERI HOSURU GUNDLUPET TOWN CHAMARAJANAGAR DISTRICT 571 111

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SMT LAKSHMAMMA W/O MADEGOWDA AGED 50 YEARS R/AT UTTAGERE HUNDI VILLAGE KASABA HOBLI, GUNDLUPET TALUK CHAMARAJANGAR DISTRICT 571 111

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SMT.BHAGYA W/O RAMESH

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MFA No. 897 of 2023

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AGED ABOUT 43 YEARS R/AT NO.109, 22^ND WARD 5^TH DIVISION KURUBAGERI HOSURU GUNDLUPET TOWN CHAMARAJANGAR DISTRICT 571111

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SRI VENKATE GOWDA S/O HUCCHE GOWDA AGED 70 YEARS R/AT 22^ND WARD, 5^TH DIVISION KURUBAGERI HOSURU GUNDLUPET TOWN CHAMARAJANAGAR 571111

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SMT THAYAMMA W/O VENKATE GOWDA AGED ABOUT 63 YEARS R/AT 22^ND WARD, 5^TH DIVISION KURUBAGERI HOSURU GUNDLUPET TOWN CHAMRAJANAGAR DISTRICT 571111

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…RESPONDENTS

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(BY SRI. ANIL SHEKAR K S., ADVOCATE FOR R1 R3 SERVED)

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THIS MFA IS FILED U/O 43 RULE 1(r) R/W SECTION 151 OF CPC, AGAINST THE ORDER DATED 20.01.2023 PASSED ON I.A.NO.4 IN OS.NO.68/2020 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, GUNDLUPET, ALLOWING THE I.A.NO.4 FILED UNDER ORDER 39 RULE 1 AND 2 R/W SECTION 151 OF CPC.

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

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MFA No. 897 of 2023

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JUDGMENT

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This appeal by defendant No.4 in O.S.No.68/2020 is directed against the impugned order dated 20.01.2023 passed by the Senior Civil Judge and JMFC, Gundlupet, whereby the application I.A.No.IV filed by respondent No.1-defendant No.3 for temporary injunction restraining appellant-defendant No.4 from interfering with the re-construction of a tea shed and running a tea stall in a portion of the application schedule property by respondent No.1-defendant No.3 till disposal of the suit, was allowed by the Trial Court.

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A perusal of the material on record discloses that the respondents No.2 and 3 – plaintiffs instituted the aforesaid suit for partition and separate possession of their alleged share in the suit schedule properties. In the said suit, the appellant was arrayed as defendant No.4 while respondent No.1 was arrayed as defendant No.3 and respondents No.4 and 5 were arrayed as defendant Nos.1 and 2 respectively and have contested the suit. During the pendency of the suit, respondent No.1 – defendant No.3 filed the instant application for temporary injunction as stated supra only for the limited purpose and enabling the respondent No.1 – defendant No.3 from re-constructing the tea stall and running the same in a portion of the application schedule property. The said application

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MFA No. 897 of 2023

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having been opposed by appellant-defendant No.4, the Trial Court proceeded to pass the impugned order allowing I.A.No.IV, aggrieved by which the appellant-defendant No.4 is before this Court by way of the present appeal.

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The sole grievance urged by the learned Counsel for the appellant-defendant No.4 is that, since the schedule to the application I.A.No.IV discloses the entire application schedule property measuring 759 sq. mtrs. (8200 sq. ft.) by describing the same as site Nos.1 and 2, under the guise of the impugned order, the respondent No.1-defendant No.3 may put up construction over the entire application schedule property and as such, the appellant is before this Court by way of the present appeal.

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Per contra, learned Counsel for respondent No.1defendant No.3 submits that respondent No.1 would only reconstruct the tea stall which got burnt in a fire accident and situated only in a portion of the application schedule property to an extent of around of 250 sq. ft. He further submits that he would restore/reconstruct a tea stall/shop in a portion of the application schedule property only to an extent of 250 sq. ft. after obtaining necessary permission from the concerned authorities.

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MFA No. 897 of 2023

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The submission of the learned Counsel for respondent No.1-defendant No.3 is placed on record.

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In view of the aforesaid facts and circumstances and

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submissions made at the bar, without expressing any opinion on the merits/demerits of the rival contentions, I deem it just and appropriate to dispose of this appeal by modifying the impugned order and permitting respondent No.1-defendant No.3 to put up/restore/re-construct a tea stall/shop in a portion of the application schedule property to an extent of around 250 sq. ft. after obtaining necessary permission/clearance from the concerned authorities. It is further directed that the said construction put up by respondent No.1-defendant No.3 pursuant to this order would be without prejudice to the rights and contentions of the parties and subject to the final outcome of the suit and respondent No.1defendant No.3 shall not claim any equities in this regard.

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Subject to the aforesaid directions, the present appeal stands disposed of by modifying the impugned order in the terms indicated above.

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Sd/-

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JUDGE

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JT/-

Sri Venkatesha v. Smt. Rathnamma

Case brief

What is this about?

What did the court decide?

Sri Venkatesha v. Smt. Rathnamma

Case brief

What is this about?

What did the court decide?

What the court decided

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