Sri. Thimmappa @ Thimmaiah Vs Smt. Rajamma

SRI. THIMMAPPA @ THIMMAIAH SON OF LATE SRI. NARASIMAIAH, AGED ABOUT 75 YEARS, RESIDING AT KANIMINAKE COLONY, KUMBALAGUDU POST, KENGERI HOBLI, BANGALORE SOUTH TALUK, BANGALORE – 560 074.

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SRI.NARASIMHAIAH SON OF SRI. THIMMAPPA, AGED ABOUT 53 YEARS, RESIDING AT KANIMINAKE COLONY, KUMBALAGUDU POST, KENGERI HOBLI, BANGALORE SOUTH TALUK, BANGALORE – 560 074.

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Digitally signed by RAMYA D Location: HIGH COURT OF KARNATAKA

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SINCE DECEASED AND REPRESENTED HEREIN BY HIS LEGAL REPRESENTATIVES, APPELLANTS NO. 2 AND 3.

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SMT. RANGAMMA WIFE OF LATE SRI. NARASIMHALAH, AGED ABOUT 55 YEARS. RESIDING AT KANIMINAKE COLONY, KUMBALAGUDU POST, KENGERI HOBLI, BANGALORE SOUTH TALUK, BANGALORE – 560 074.

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SRI. RAMU SON OF LATE SRI. NARASIMHAIAH,

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AGED ABOUT 30 YEARS, RESIDING AT KANIMINAKE COLONY, KUMBALAGUDU POST, KENGERI HOBLI, BANGALORE SOUTH TALUK, BANGALORE – 560 074.

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SMT. LAKSHMAMMA, WIFE OF SRI. SENAPPA, DAUGHTER OF SRI. THIMMAPPA, AGED ABOUT 50 YEARS, RESIDING AT KODIYALA KARENAHALLI VILLAGE, KARENAHALLI POST, BIDADI HOBLI, RAMANAGARA TALUK AND DISTRICT - 562 109.

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SRI. LAKSHMANA, SON OF SRI. THIMMAPPA, AGED ABOUT 48 YEARS, RESIDING AT KANIMINAKE COLONY, KUMBALAGUDU POST, KENGERI HOBLI, BANGALORE SOUTH TALUK, BANGALORE – 560 074.

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SRI. VENKATESH, SON OF SRI. THIMMAPPA, AGED ABOUT 45 YEARS, RESIDING AT KANIMINAKE COLONY, KUMBALAGUDU POST, KENGERI HOBLI, BANGALORE SOUTH TALUK, BANGALORE – 560 074.

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…APPELLANTS

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(BY SRI. C.K.NANDA KUMAR, SR. ADVOCATE FOR SRI. RAGHURAM CADAMBI, ADVOCATE)

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AND:

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SMT. RAJAMMA WIFE OF SRI. PUTTAREVAIAH, DAUGHTER OF SRI. THIMMAPPA, AGED ABOUT 55 YEARS, RESIDING AT KANIMINAKE COLONY, KUMBALAGUDU POST,

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KENGERI HOBLI, BANGALORE SOUTH TALUK, BANGALORE – 560 074.

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…RESPONDENT

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(BY SRI. B. RAVINDRA PRASAD, ADVOCATE FOR C/R1)

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THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DT.08.01.2025 PASSED ON IA NO.1 AND 3 IN O.S.NO.1511/2018 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, ALLOWING IA NOS.1 AND 3 FILED U/O.39 RULE 1 AND 2 OF CPC.

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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 HANCHATE SANJEEVKUMAR

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ORAL JUDGMENT

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The defendant Nos.1 to 5 being aggrieved by the

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order dated 08.01.2025 passed on I.A.Nos.1 and 2 filed under Order 39 Rule 1 and 2 of CPC, thereby, granting an order of temporary injunction restraining the appellants/defendants from alienating the suit schedule properties and from changing the nature of suit schedule properties in O.S.No.1511/2018 by the Court of II Addl. Senior Civil Judge, Bengaluru Rural District, Bengaluru, have preferred this appeal.

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NC: 2025:KHC:14438 MFA No. 880 of 2025

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2. The respondent/plaintiff has filed suit for

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partition and separate possession by claiming her 1/6^th share by contending that the suit properties are ancestral properties. It is not disputed that the defendant No.1 is the father of plaintiff and other defendants are brothers and sisters of the plaintiff.

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During the course of arguments,

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Sri.C.K.Nandakumar, learned Senior Counsel appearing for the appellants/defendants submitted that the defendants will not alienate the suit Item Nos.1 to 8 properties and their arguments in the appeal is confined only in respect of Item No.9 in the suit schedule properties so far as leasing out of 18,000 sq. ft. land for establishment of petrol bank is concerned.

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Upon considering the submissions made by the

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learned counsel for the respondent/plaintiff that suit Item No.9 property is the only property accessing to the other properties at Item Nos.1 to 8 properties of the schedule, but this pleading is not found in the affidavit filed in

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support of I.A.No.3. The Item No.9 property was an agricultural land at the time of filing the suit, later the defendants have got converted the said land into non agricultural land. Out of 38 guntas land, the defendants have leased out 18,000 sq. ft. of land for establishment of Petrol Bank. Copy of lease deed is produced. Therefore, leasing out of the portion of Item No.9 property is only 18,000 sq. ft. Even if the suit is decreed, at the most the plaintiff will get 1/6^th share in all the properties including Item No.9 property. Therefore, for 1/6^th share the decree restraining the defendants from changing the nature of entire land is concerned, is not correct.

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The learned counsel for the

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appellants/defendants submitted that the defendants do not have intention to alienate the properties. When this being the fact, if the order of injunction restraining defendants not to change the nature of land to the entire extent of 38 guntas is concerned, certainly it will harm the defendants as less than half of 38 guntas of land is being

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used for establishing the Petrol Bank, so the remaining half of the land is still available for the plaintiff to get her share even if the suit is decreed. Therefore, under these circumstances, the Court is of the opinion to modify the order of temporary injunction so far as not to change the nature of land is concerned. Therefore, order of injunction

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restraining the defendants from alienating the suit schedule properties is confirmed and the other portion of the order that defendants are restrained from changing the nature of suit schedule properties is concerned, same is set aside. Therefore, the interim order granted by the trial court is modified only to the extent that defendants are restrained from alienating the suit schedule properties. Since in remaining 18,000 sq. ft. of land the defendants are going to establish a petrol bank and if 1/6^th share is even granted to the plaintiff, she will take share in other portion of the land. Therefore, the order of temporary injunction restraining defendants from changing the nature of suit schedule properties is set aside. Accordingly, the

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interim order of temporary injunction granted by the trial court is modified.

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With the above said order, the appeal is disposed of . The defendants shall not claim any equity, if Petrol Bank is established and suit is decreed in respect of giving share to the plaintiff. The trial court is directed to expedite the trial and dispose of the suit as early as possible within a period of 1½ year from the date of receipt of copy of this order.

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SD/(HANCHATE SANJEEVKUMAR) JUDGE

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DR

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List No.: 1 Sl No.: 43

Sri. Thimmappa @ Thimmaiah v. Smt. Rajamma

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Sri. Thimmappa @ Thimmaiah v. Smt. Rajamma

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