Dismissed

Sri Muniyappa v. Sri Rajanna @ Muniraju

Karnataka HC11 Nov 2024MFA/6705/2023

Case brief

AI extract

What is this about?

Appeal against temporary injunction in a partition suit over ancestral properties at Chikkaballapura. Appellant claimed a 1989 panchayath partition and denied existence of an eight-feet road to plaintiff's land; photographs showed fencing and a road between the plots. The High Court found no error in the Trial Court's exercise of discretion and dismissed the appeal.

What the court decided

AI extract

Sri Muniyappa Vs Sri Rajanna @ Muniraju — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:45442 MFA No. 6705 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH

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MISCELLANEOUS FIRST APPEAL NO.6705 OF 2023 (CPC)

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BETWEEN:

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SRI MUNIYAPPA S/O LATE SANDAPPA, AGED ABOUT 60 YEARS, R/AT SRIRAMAPURA VILLAGE, NANDI HOBLI-262101 CHIKKABALLAPURA TALUK AND DISTRICT.

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…APPELLANT

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(BY SRI G R LAKSHMIPATHI REDDY, ADVOCATE) AND:

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Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

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SRI RAJANNA @ MUNIRAJU S/O LATE SANDAPPA, AGED ABOUT 56 YEARS, R/AT SRIRAMAPURA VILLAGE, NANDI HOBLI-262101 CHIKKABALLAPURA (T) AND (D)

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SMT. ESHWARAMMA W/O LATE NARAYANAPPA, AGED ABOUT 61 YEARS, R/AT SRIRAMAPURA VILLAGE, NANDI HOBLI-262101 CHIKKABALLAPURA (T) AND (D)

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SMT. KRISHNAMMA D/O LATE SANDAPPA, W/O LATE. LAKKAPPA, AGED ABOUT 57 YEARS, R/AT NO.23, 7^TH MAIN ROAD, NEAR JIO HOSTEL, SR NAGAR, THANNAPPA GARDEN, WATSON GARDEN, BANGALORE SOUTH, BANGALORE - 560027.

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…RESPONDENTS

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(BY SRI SUDHINDRA S A, ADVOCATE FOR R1; R2 & R3 SERVED AND UNREPRESENTED)

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THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 14.09.2023 PASSED ON I.A. NO.1 AND 5 IN O.S.NO.343/2022 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, CHIKKABALLAPURA AND ETC.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE H.P.SANDESH

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ORAL JUDGMENT

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This miscellaneous first appeal is filed challenging the

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order dated 14.09.2023 passed on I.A.No.1 and 5 in O.S.No.343/2022 by the Principal Senior Civil Judge and CJM, Chikkaballapur.

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3 - NC: 2024:KHC:45442 MFA No. 6705 of 2023

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Heard the learned counsel appearing for the respective parties.

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The factual matrix of the case of the plaintiff before the Trial Court is that the suit schedule properties are the ancestral properties and the parties are coparceners. It is contended that one Sandappa is the propositus of plaintiff and defendants. Deceased Narayanappa, defendant Nos.2, 3 and the plaintiff are children of Sandappa. The plaintiff and defendants are in joint possession and enjoyment of the suit schedule properties. There is no division in suit schedule properties between the plaintiff and the defendants. After the death of Sandappa, defendants are managing joint family properties. The defendants have started to act detrimental to the interest of joint family and to the interest of plaintiff. The plaintiff demanded his share in the suit schedule properties. The defendants in order to defraud the legitimate share of the plaintiff, they are trying to

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alienate suit schedule properties in favour of third persons. It is also the contention of the plaintiff that the plaintiff is

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in possession of the bearing Sy.No.160/4 and defendant No.2 is in cultivation of property bearing Sy.No.160/1. Both the properties come under common plot. On 31.05.2023, defendant No.2 has stored stone pillars to construct fencing around the property in order to disturb road existed in Sy.No.160/1. The plaintiff has no other road to approach his property. Hence, requested the Trial Court to use and occupation of the road which is in existence and also prayed for temporary injunction restraining the defendants from alienating the suit schedule property.

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4. Defendant No.2 filed written statement and also

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made request to treat the same as objection to I.A.Nos.1 and 5. It is contended that the wife of Sandappa by name Sakamma is not made as a party to the suit. It is also contended that the plaintiff and defendants have partitioned joint family properties through panchayath

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partition dated 10.01.1989. There is no existence of joint family properties. It is also contended that as per M.R. No.21/98-99, khatha in respect of properties fallen to the share of defendant No.2. It is contended that in the said partition, Sy.No.48 totally measuring 1 acre 25 guntas was allotted to plaintiff. The plaintiff has sold 30 guntas of property in Sy.No.48 in favour of Sugunamma. House list No.240 belongs to the plaintiff and house list No.260 belongs to Narayanappa who is husband of defendant No.2. These properties not included in the suit. Hence, the suit is bad for partial partition and the same is not maintainable. As per gift deed, Sharadamma is paying taxes to the concerned authorities in respect of item Nos.1 and 5 properties and also obtained loan and when, Sharadamma is not made as party to the suit, cannot seek any relief and the suit is also barred by limitation.

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Trial Court having considered the pleadings of

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the parties and also on perusal of the material available on record, formulated the points and after considering both

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oral and documentary evidence placed on record, allowed the applications. Being aggrieved by the said order, the present appeal is filed before this Court.

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The main contention of the learned counsel

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appearing for the appellant that already there was a partition and hence, there is no existence of any joint family property. The contention that the plaintiff is in possession of Sy.No.160/4 and defendant No.2 and his wife are in possession of Sy.No.160/1. Admittedly, defendant No.2 has bequeathed the item No.1 of the plaint schedule property i.e., Sy.No.160/1 in favour of his wife Sharadamma under a registered gift deed, hence, it is clear that the plaintiffs are not in joint possession and enjoyment of the plaint schedule properties. It is further contended that no material is placed before the Court to show the existence of 8 feet road in Sy.No.160/1 to reach Sy.No.160/4. The Trial Court committed an error in coming to such a conclusion that they are the coparceners and plaintiff cannot prevent from using of the property. It

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is also contended that Sharadamma has raised crop loan to harvest grape garden to the extent of Rs.4,50,000/- in the Punjab National Bank, and also developed grape garden by installing stone pillars along with barbed wire. The photographs produced are clear to show that the appellant is in exclusive possession. The counsel also would vehemently contend that in view of the impugned order, the plaintiff with the help of police threatening the appellant to remove the stone pillars and also grape plants to form 8 width feet road to reach the plaintiff’s property. Hence, the very approach of the Trial Court is erroneous.

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The counsel also produced the photographs before the Court for having demarcation of two plots and also the road and they are not interfering with the usage of the same and not in existence of 8 feet road in between the properties. The counsel would vehemently contend that the order is erroneous and it requires interference of this Court.

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Per contra, the learned counsel for the

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respondent also produced the photographs as per the order of this Court. The said photographs clearly discloses that there is a demarcation between two parties and also stone fencing dividing the same. The counsel also produced recent photographs and contend that the appellants have narrowed the said eight feet road and to that effect also produced the photographs. The counsel further contend that the suit is filed for the relief of partition and the Trial Court made an observation that they are coparcenrs hence, the appellant cannot cause any disturbance for usage of said road. The fact that both are having common plot and there is a road to the extent of eight feet and said fact is taken note of the by the Trial Court by seeking photographs and hence, the Trial Court has not committed any error in allowing the applications.

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Having heard the learned counsel appearing for

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the respective parties and on perusal of the material available on record, it discloses that it is a specific case of

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the appellant that already there was a partition in the year 1989 and even also the counsel submits that in terms of the partition, revenue documents are also changed and portion of the property was also sold by the respondent. If no such partition, how a respondent can sell a property. The counsel also brought to notice of this Court paragraphs 14 to 18 of the order of the Trial Court wherein a discussion was made with regard to mutation No.21/1998-99. According to the appellant, partition was taken place in the year 1989 itself and MR is of the year 1998-99. The Trial Court taken note of the contention that there was no any mutation entered in the name of the plaintiff. Except defendant No.2 getting transferred the property in his favour, no other documents are placed to show that there was partition. The Trial Court also taken note of the contention of the plaintiff that there was a road and the defendant is laying fence so as to close eight feet approach road to Sy.No.160/4. If he is capable to close the road, there will be no access to the plaintiff.

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Having perused the photographs produced by the appellant discloses that there is a demarcation of two properties and there is a passage in between two properties. The counsel for the respondent also produced the photographs and the appellant has produced the photographs with regard to cultivation of the land in Sy.No.260/1 as per Annexure-F1 and F2 and today, produced other photographs and earlier photographs not shown the demarcation of the property of Sy.No.160/1 and 160/4 and also passage. Now the photographs produced by the respondent also clearly disclose that there is a road in between two properties and new stone pillars are erected. Said fact is also taken note of by the Trial Court while granting the relief of temporary injunction. The relief is for partition hence, the relief is granted for not to alienate the same. No dispute that the properties are the ancestral properties and the appellant contend that already there was a partition. On the other hand, the plaintiff contends that there was no such partition. When there is no dispute with regard to the fact that the

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properties belongs to the family and the photographs produced by both the parties clearly depict that there is a fencing between two properties and also there is a road in between two properties. The very contention of the respondent that appellant narrowed the said road and also found new stone pillars in between the same. Having taken note of the photographs, it is clear that there exists broader road. The Trial Court also taking the same, in detail discussed in paragraph 13 to 18 and comes to the conclusion that they are the coparceners and blocking of said road causes prejudice to the plaintiff in order to enter

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his property bearing No.160/4. Hence, I do not find any error committed by the Trial Court in exercising the discretion in favour of the plaintiff. The contention of the appellant counsel that there is no road of eight feet cannot be considered at this juncture having taken note of the photographs which are placed before the Court. Hence, the order does not requires any interference by this Court.

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12 -

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NC: 2024:KHC:45442 MFA No. 6705 of 2023

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In view of the discussions made above, I pass

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the following:

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ORDER

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The miscellaneous first appeal is dismissed.

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In view of dismissal of the main appeal, I.A. if any,

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does not survive for consideration and the same

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stands disposed of.

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Sd/(H.P.SANDESH) JUDGE

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Sri Muniyappa v. Sri Rajanna @ Muniraju

Case brief

What is this about?

What the court decided

Sri Muniyappa v. Sri Rajanna @ Muniraju

Case brief

What is this about?

What the court decided

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