- 1 - NC: 2025:KHC-D:2037 WP No. 100313 of 2025 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 1ST DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ WRIT PETITION NO. 100313 OF 2025 (GM-CPC) BETWEEN: SRI. SHRIRANG BABURAO KUMBHAR AGE. 60 YEARS, OCC. AGRICULTURE, R/O. BENADI, TQ. NIPANI, DIST. BELAGAVI-591215. …PETITIONER (BY SRI. RAMACHANDRA A.MALI, ADVOCATE) AND: 1. SRI. PANDURANG APPAJI KUMBHAR @ PUREKAR AGE. 66 YEARS, OCC. AGRICULTURE, R/O. BENADI, TQ. NIPANI, DIST. BELAGAVI-591215. 2. SRI. SADASHIV APPAJI KUMBHAR @ PUREKAR AGE. 60 YEARS, OCC. AGRICULTURE, R/O. BENADI, TQ. NIPANI, DIST. BELAGAVI-591215. 3. SMT. SHEVANTA PANDIT KUMBHAR AGE. 46 YEARS, OCC. AGRICULTURE, R/O. BENADI, TQ. NIPANI, DIST. BELAGAVI-591215. 4. SMT. UJWALA BALASAHEB KUMBHAR AGE. 44 YEARS, OCC. AGRICULTURE, R/O. BENADI, TQ. NIPANI, DIST. BELAGAVI-591215. 5. SRI. NITIN BALASAHEB KUMBHAR ASHPAK KASHIMSA MALAGALADINNI Digitally signed by ASHPAK KASHIMSA MALAGALADINNI Location: High court of Karnataka, Dharwad Bench, Dharwad Date: 2025.02.04 15:45:12 +0530 - 2 - NC: 2025:KHC-D:2037 WP No. 100313 of 2025 AGE. 20 YEARS, OCC. AGRICULTURE, R/O. BENADI, TQ. NIPANI, DIST. BELAGAVI-591215. 6. SRI. CHANDRAKANT I.KUMBHAR AGE. 47 YEARS, OCC. AGRICULTURE, R/O. BENADI, TQ. NIPANI, DIST. BELAGAVI-591215. 7. SRI. NANDAKUMAR I. KUMBHAR AGE. 36 YEARS, OCC. AGRICULTURE, R/O. BENADI, TQ. NIPANI, DIST. BELAGAVI-591215. 8. SRI. SHIVAJI T.KUMBHAR AGE. 69 YEARS, OCC. AGRICULTURE, R/O. BENADI, TQ. NIPANI, DIST. BELAGAVI-591215. 9. SRI. KRISHNATH M.KUMBHAR AGE. 27 YEARS, OCC. AGRICULTURE, R/O. BENADI, TQ. NIPANI, DIST. BELAGAVI-591215. 10. SRI. DINKAR J. KUMBHAR AGE. 60 YEARS, OCC. AGRICULTURE, R/O. BENADI, TQ. NIPANI, DIST. BELAGAVI-591215. 11. SRI. ANNAPPA J. KUMBHAR AGE. 60 YEARS, OCC. AGRICULTURE, R/O. BENADI, TQ. NIPANI, DIST. BELAGAVI-591215. …RESPONDENTS (BY SRI. SHRIKANT T.PATIL AND SRI. ROHIT S.PATIL, ADVOCATES FOR R1; NOTICE TO R2 TO R11 ARE DISPENSED WITH) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO, CALL FOR THE RECORDS IN O.S. NO. 80/2020 ON THE FILE OF LEARNED CIVIL JUDGE AND JMFC, NIPPANI AND ALSO CALL FOR THE - 3 - NC: 2025:KHC-D:2037 WP No. 100313 of 2025 RECORDS IN MISC. APPEAL NO. 02/2024 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, NIPPANI AND QUASH THE ORDER DATED 07-01-2025 MADE IN MISC. APPEAL NO. 02/2024 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC, NIPPANI PRODUCED AT ANNEXURE-G AND CONSEQUENTLY ALLOW THE I.A. NO. IV IN O.S. NO. 80/2020 ON THE FILE OF LEARNED CIVIL JUDGE AND JMFC, ANNEXURE-D NIPPANI AS PRAYED FOR THEREIN IN THE INTEREST OF JUSTICE AND EQUITY AND ETC. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING: ORAL ORDER (PER: THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ) 1. The petitioner is before this Court seeking following prayer: i) call for the records in O.S. No. 80/2020 on the file of learned Civil Judge and JMFC, Nippani and also call for the records in Misc. Appeal no. 02/2024 on the file of Senior Civil Judge and JMFC, Nippani and quash the order dated 07-01-2025 made in Misc. Appeal No. 02/2024 passed by the Senior Civil Judge and JMFC, Nippani produced at Annexure-G and consequently allow the I.A. No. iv in O.S. No. 80/2020 on the file of learned Civil Judge and JMFC, Annexure-D Nippani as prayed for therein in the interest of justice and equity. ii) Grant such other and further reliefs as are just even including the costs of this petition in the interest of justice and equity. - 4 - NC: 2025:KHC-D:2037 WP No. 100313 of 2025 2. The suit in O.S.No.80/2020 had been filed by respondent No.1 herein seeking for partition separate possession of the suit schedule property. In the said suit, the petitioner, who was defendant No.2, filed I.A.No.4 under order XXXIX Rule 1 and 2 of Code of Civil Procedure (for short “the CPC”) seeking for injunction and restraining the plaintiff from putting up any construction in one of the properties on the ground firstly that the said property is the subject matter of the suit. Secondly that the construction is being put up without any plan sanction and in violation of the building bye-laws. 3. The Trial Court vide its’ order dated 20.02.2024, partly allowed the said application restraining the plaintiff from putting up any construction contrary to the applicable law. Challenging the same, the plaintiff had filed M.A.No.2/2024 before the Senior - 5 - NC: 2025:KHC-D:2037 WP No. 100313 of 2025 Civil Judge and JMFC at Nipani, who vide order dated 07.01.2025, taking the note of the affidavit of undertaking submitted by the plaintiff, set-aside the order dated 20.02.2022 in O.S.No.80/2020 and permitted the plaintiff to go ahead with the construction, provided the plaintiff shall not be entitled to claim any equity in the event of defendant succeeding in the suit and the defendant would be entitled to share in the suit scheduled property including all the additional construction made their own. It is challenging the same, the petitioner is before this Court. 4. Shri Ramachandra A Mali, learned counsel appearing for the petitioner once again reiterates that the construction, which is being carried on by the plaintiff, is without a plan sanction and contrary to the building bylaws and as such, the plaintiff ought to have been restrained by the First Appellate Court from putting up construction - 6 - NC: 2025:KHC-D:2037 WP No. 100313 of 2025 instead of accepting a undertaking given by the plaintiff that he will not claim any equities. If at all, there is no plan sanction and or the construction is violation of the building bylaws, it is for the concerned authorities to take necessary action, the trial court could not do so, the same being a statutory duty of the concerned authority. As regards which, Sri Ramachandra A Mali, learned counsel appearing for the petitioner submits that complaint has been filed to the Gram Panchayat. 5. In the present matter, the plaintiff putting up construction on a joint family property, the construction being at the advanced stage, it is not that the plaintiff, has no right in the property, the rights of the parties are yet to be determined by a preliminary decree to be passed in OS No.80/2020. - 7 - NC: 2025:KHC-D:2037 WP No. 100313 of 2025 6. Since the plaintiff has categorically stated that the plaintiff will not claim any equities in the construction and if the property were to be allotted to any other person, other than the plaintiff, such person would be entitled to be constructed area without making payment for the cost of construction. I am of the considered opinion that the plaintiff would be carrying on the construction at his sole, risk, cost and peril and any person, who is granted the share of the property where the construction has been put up by plaintiff would enure to the benefit of such person without the cost of construction being taken into account at the time of drawing up of a final decree proceedings. In that view of the matter, I do not find any infirmity in the order passed by the First Appellate Court on that ground. - 8 - NC: 2025:KHC-D:2037 WP No. 100313 of 2025 7. The other submission made by Shri Ramachandra Mali, learned counsel for the petitioner is that construction is without obtaining a plan sanction and in violation of the building bylaws. The trial Court originally injuncted the plaintiff from putting up any construction otherwise than in accordance with law. The said order of the trial Court was not a blanket order of injunction and it is in that view of the matter that the First Appellate Court taking into account the undertaking given by the plaintiff has permitted the construction subject to the plaintiff not claiming any equity. 8. If at all, the construction is without obtaining any plan sanction and or in violation of the building bylaws without leaving the setbacks and or compliance of any other facet of the building bylaws, it is for the Panchayat to take necessary action on the same in terms of the complaint submitted by the petitioner that would not come - 9 - NC: 2025:KHC-D:2037 WP No. 100313 of 2025 within the purview of either OS No.80 of 2020 or MA No.2 of 2024 let alone before this Court. 9. Reserving liberty to the petitioner to once again approach the Gram Panchayat for necessary action and directing the Gram Panchayat to act on the said complaint, the petition stands disposed of. Sd/- (SURAJ GOVINDARAJ) JUDGE RHR/- AM List No.: 3 Sl No.: 1