Smt Jayamma Vs Marulasiddappa

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 104 READ WITH ORDER 43 RULE 1 (r) OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO SET ASIDE THE ORDER ON I.A.NO.2 AND 3 IN O.S.NO.80/2024 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, ARSIKERE WHEREIN THE LEARNED JUDGE HAS DISMISSED I.A.NO.2 FILED BY THE APPELLANTS HEREIN AND ALLOWED I.A.NO.3 FILED BY THE R1.

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THIS MISCELLANEOUS FIRST APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 21.03.2025, THE COURT PRONOUNCED THE FOLLOWING AT KALABURAGI BENCH:

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CORAM: HON'BLE MR JUSTICE K.NATARAJAN

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RESERVED FOR ORDERS ON: 21.03.2025 PRONOUNCED ON 09.04.2025

MFA NO.7081/2024

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CAV JUDGMENT

This appeal is filed by the appellants-plaintiffs under Order 43 Rule 1(r) of CPC for setting aside the order dated 04.09.2024 passed on I.A.Nos.2 and 3 in O.S.No.80/2024 by the Senior Civil Judge & JMFC, Arsikere [for short, ‘the Trial Court’], for rejecting the injunction application filed under Order 39 Rule 1 and 2 CPC and for setting aside the order passed on I.A.No.3 for allowing the application filed under Order 39 Rule 4 of CPC.

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Heard the arguments of learned counsel for the appellants and learned counsel for respondent No.1. Respondent Nos.2 to 5 though served, have remained unrepresented.

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The case of the plaintiffs before the Trial Court is that the plaintiffs filed a suit for partition and separate possession in respect of various schedule properties in O.S.No.80/2024 and also for a declaration that the judgment and decree obtained by defendant Nos.1 and 2 in O.S.No.53/2003 is not binding on the plaintiffs.

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It is alleged that the suit schedule properties are ancestral and joint family properties of both plaintiffs and defendants. There is no partition between them. Therefore, the plaintiffs are entitled for half share over the various items of schedule properties. It is further contended that defendants, colluding with each other, obtained collusive decree in O.S.No.53/2003 to defeat the legitimate share of the plaintiffs. It is also contended that defendant No.1 trying to give the suit item No.1 on lease

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to the Hindustan Petroleum without their knowledge, therefore they filed the I.A.Nos.1 and 2 for restraining the defendants from alienating the schedule properties.

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The respondents appeared and filed statement of objection by taking various contentions that there was previous partition between the family. A decree was obtained by the defendants in the Court of law. The decree was obtained prior to the cut off date in respect of amendment to the Hindu Succession Act. Therefore, the plaintiffs are not entitled for any share and cannot be

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considered as coparceners. Hence, prayed for dismissing the applications.

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After hearing the arguments, the Trial Court granted injunction by allowing I.A.No.1. However, rejected I.A.No.2 filed for injunction regarding alienating item No.1 of schedule properties to the petrol bunk. Assailing the same, the plaintiffs are before this Court.

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Having heard the arguments and perused the

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records. The points that arise for my consideration are:

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(i) Whether the plaintiffs made out prima facie case in their favour?

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(ii) Whether the balance of convenience lies in their favour?

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(iii) Whether plaintiffs will suffer irreparable loss if injunction is not granted?

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(iv) Whether the order under challenge calls for interference?

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On perusal of the records, admittedly the plaintiffs filed the suit for partition and separate possession, including challenging the decree in

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O.S.No.53/2003. It is contended the one Siddalinganna was the propositus having three children namely,

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MFA NO.7081/2024

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Basappa, Parvathappa and Parameshwarappa. Basappa is said to have died by executing Will in favour of the son of

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Parameshwarappa i.e. defendant No.1. A suit was filed between Parvatappa family and Parameshwarappa family and it was compromised. 1/3^rd share belonging to Basappa and 1/3^rd share belonging to Parameshwarappa had fallen to the share of defendant No.1 and remaining 1/3^rd share had fallen to the share of Parvatappa. Item No.1 of schedule properties has been divided into three pieces. 37 guntas fallen to the share of Marulasiddappa and another 36 guntas fallen to the share of defendant No.2 and 36 guntas fallen to the share of Basappa out of 2 acre 29 guntas. Marulasiddappa is said to have entered into agreement with third party for the purpose of leasing the property to a petrol bunk where one Madhu is said to be lease holder as per the lease agreement dated 13.12.2018. Madhu said to have obtained license for having the petrol bunk and he has spent huge amount for opening of the petrol bunk. At this stage if the injunction is granted, defendant No.1 will be put into more hardship and loss whereas the plaintiffs will not be put into any

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greater hardship and loss. Considering the same, the Trial

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Court rejected the application in respect of item No.1.

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Though the plaintiffs were able to show that the

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suit schedule properties are ancestral properties and it is also shown to the Court that there was a compromise decree between defendant Nos.1 and 2 in O.S.No.53/2003, until the said decree has been set aside by the court, the plaintiffs are not entitled for any relief of share in the schedule properties. That apart, the plaintiffs are woman and they become coparceners only after the

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amendment to Section 6 of the Hindu Succession Act and there is a cut off date in the proviso that any earlier partition or sale executed cannot be reopened after 20^th December, 2004 onwards. Therefore, the plaintiffs are still required to prove that they are the coparceners to the schedule properties. Therefore, at this stage it cannot be said there is a prima facie case made out by the plaintiffs in their favour. Accordingly, I answer point No.(i) against the plaintiffs.

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MFA NO.7081/2024

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Various properties are available in the suit apart from item No.1 which is 2 acres 29 guntas in Sy.No.35.

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The same was divided into three pieces Sy.No.Nos.35/1 and 35/2 measuring 36 guntas and 37 guntas each. Even plaintiffs are entitled for half share and they can claim half share in item No.2 in the final decree proceedings as there are two different properties available in item No.1 and 2 in same Sy.No.35. Therefore, at this stage, the balance of convenience does is not lie in favour of the plaintiffs. Accordingly, I answer point No.(ii) against the plaintiffs.

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Defendant No.1 has already entered into an agreement for leasing out item No.1 to one Madhu and the lease holder has also obtained the permission for running the petrol bunk by spending huge amount. At this stage, if injunction is granted, defendant No.1 will be put into more hardship and irreparable loss compared to the plaintiffs. Therefore, if the injunction is not granted, the plaintiffs will not be put to irreparable loss and even the plaintiffs can claim the mesne profits after the final decree

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proceedings. Accordingly, I answer point No.(iii) against the plaintiffs.

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Considering the facts and circumstances, the Trial Court rightly held that the injunction cannot be granted in favour of the plaintiffs in respect of item No.1 and rightly vacated the interim order which do not call for any interference. Therefore, the appeal is devoid of merits.

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Accordingly, the appeal filed by the appellants is dismissed.

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Sd/(K.NATARAJAN) JUDGE

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SWK CT:SI

Smt Jayamma v. Marulasiddappa

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Smt Jayamma v. Marulasiddappa

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