Extracted from the PDF above. The PDF is authoritative.
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NC: 2025:KHC:10271 MFA No. 5777 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO. 5777 OF 2014 (CPC) BETWEEN:
1. SRI. RAMAIAH S/O LATE OBALAPPA @ OBALI SINCE DEAD, REPRESENTED BY HIS L.RS
a) SMT. BYLAMMA W/O LATE RAMAIH AGED ABOUT 75 YEARS, R/O NO.11, SHETTIHALLI , JALAHALLI WEST, BENGALURU NORTH, BENGALURU - 560 015. (AMENDED AS PER ORDER DATED 01.08.2024)
2. SRI. H. RUDRESHA GOWDA S/O N. HONNAIAH AGED ABOUT 51 YEARS R/O NO. W-352 SECTOR-III, H M T COLONY JALAHALLI POST BANGALORE – 560 013. 3. SRI. OMSHIVAIAH S/O SRI RAMAIAH AGED ABOUT 42 YEARS R/AT SHETTIHALLI YESHWANTHAPURA HOBLI BANGALORE NORTH TALUK
4. SMT. DALAMMA D/O SRI RAMAIAH
Digitally signed by RAMYA D Location: HIGH COURT OF KARNATAKA
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AGED ABOUT 39 YEARS R/AT SHETTIHALLI YESHWANTHAPURA HOBLI BANGALORE NORTH TALUK
5. SMT. GOWRAMMA D/O RAMAIAH AGED ABOUT 38 YEARS R/AT SHETTIHALLI YESHWANTHAPURA HOBLI BANGALORE NORTH TALUK
6. SMT. OBAMMA D/O RAMAIAH AGED ABOUT 28 YEARS R/AT SHETTIHALLI YESHWANTHAPURA HOBLI BANGALORE NORTH TALUK
7. SRI. M. RAVIKUMAR S/O LATE K. MUTHU AGED ABOUT 49 YEARS R/O NO. 31, BEML LAYOUT 1ST STAGE, BASAVESHWARANAGAR 4TH BLOCK, BANGALORE – 79
8. SRI. G. SRINIVASALU S/O VENKTESH AGED ABOUT 41 YEARS R/O NO. 8, 11TH MAIN BEHIND SRIRAM TEMPLE 2ND CROSS, KAMMAGONDANAHALLI JALAHALLI WEST BANGALORE – 560 075. 9. SRI. B. VENKATARAMA S/O LATE B. NAGANNA AGED ABOUT 33 YEARS R/O NO. 3, 1ST FLOOR 12TH B MAIN MUTHYALAMMANAGAR BANGALORE – 560 054. - 3 -
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10. SRI YETHINDRA KUMAR KAMAL S/O R N KAMAL AGED ABOUT 44 YEARS R/O AT NO. 43, 1ST CROSS LAKE VIEW ROAD RAGHAVENDRA LAYOUT K G HALLI, JALAHALLI WEST BANGALORE – 560 015 …APPELLANTS
(BY SRI. S R HEGDE HUDLAMANE, ADVOCATE( VC))
AND:
1. SRI. OBALESHWARA S/O LATE OBALAPPA AGED ABOUT 41 YEARS R/O SHETTIHALLI VILLAGE (GATE PALYA) YESHWANTHAPURA HOBLI BANGALORE NORTH TALUK
2. SMT. LAKKAMMA W/O LATE OBALAPPA AGED ABOUT 76 YEARS
3. SMT. OBAMMA SINCE DECEASED BY HIS L.RS
3a. NARAYANASWAMY AGED ABOUT 70 YEARS, H/O LATE OBAMMA S/O LATE HANUMANTAPPA R/AT GEDDALAHALLI VILLAGE, RMV LAYOUT, 21ND STAGE, POOJARY COLONY, SANJAYANAGARA POST, BANGALORE- 560 094
4. SMT.
SHANTHAMMA W/O LATE GALI HANUMAIAH
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D/O OBALAPPA AGED ABOUT 49 YEARS
5. SMT. HANUMAKKA W/O LATE OBALAPPA AGED ABOUT 68 YEARS
6. SMT. LAKSHMAMMA W/O LATE BYLAPPA OBALAPPA AGED ABOUT 48 YEARS
7. SRI. MAHADEVAPPA S/O LATE OBALAPPA AGED ABOUT 47 YEARS
8. SRI. SADASHIVAIAH S/O LATE OBALAPPA AGED ABOUT 45 YEARS
9. SRI. MUNIYAPPA S/O LATE OBALAPPA @ OBALI SINCE DEAD, REPRESENTED BY HIS L.RS
a) SMT. MUNIHANUMAKKA W/O LATE MUNIYAPPA AGED ABOUT 70 YEARS, R/O SHETTIHALLI VILLAGE (GATE PALYA), JALAHALLI WEST POST, YESHWANTHAPURA HOBLI BANGALORE NORTH TALUK, BANGALORE – 560 015 SINCE DECEASED REPRESENTED BY 9(b) to 9 (f). b) KADRAPPA S/O LATE MUNIYAPPA AGED ABOUT 62 YEARS, R/O NOO. 1762, HARISH NILAYA GEDALAHALLI VILLAGE,
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R.M.V. 2ND STAGE, BANGALORE – 560 094. c) DALAMMA, D/O LATE MUNIYAPPA, W/O VENKARAMANPPA AGED ABOUT 60 YEARS, R/O SHETTIHALLI VILLAGE (GATE PALYA), JALAHALLI WEST POST, YESHWANTHAPURA HOBLI BANGALORE NORTH TALUK, BANGALORE – 560 015
PRESENTLY R/AT A.K. COLONY, HARAHANAGUNTE, DASANAPURA, TUMKUR ROAD, BANGALORE NORTH TALUK, BENGALURU – 561 62. d) SRI. S.M. SHIVRAM, S/O LATE MUNIYAPPA, AGED ABOUT 50 YEARS, R/O SHETTIHALLI VILLAGE (GATE PALYA), JALAHALLI WEST POST, YESHWANTHAPURA HOBLI BANGALORE NORTH TALUK, BANGALORE – 560 015. e) SRI. GURUSHIVAIAH, S/O LATE MUNIYAPPA AGED ABOUT 46 YEARS, R/O NEAR RAGAVENDRA TEMPLE, SEHTTIHALLI MAIN ROAD, KAMMAGONDANAHALLI, BANGALORE NORTH TALUK, BANGALORE – 560 015. f) SRI. MUNIRAJU, S/O LATE MUNIYAPPA, AGED ABOUT 42 YEARS,
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R/O SHETTIHALLI VILLAGE (GATE PALYA), JALAHALLI WEST POST, YESHWANTHAPURA HOBLI BANGALORE NORTH TALUK, BANGALORE – 560 015. 10. SRI. R. RAVISHANKAR SINDE DECESED BY HIS LRS
a) SMT LAKSHMI SHIVASHANKAR S/O LATE SHIVASHANKAR AGED MAJOR
b) MURALI SHIVASHANKAR S/O LATE SHIVASHANKAR AGED MAJOR
RESPONDENTS NO.2 TO 10a, R/AT NO. 403, 17TH CROSS 6TH MAIN, BEML LAYOUT BASAVESHWARANAGARA BANGALORE-79. DASANAPURA HOBLI, BANGALORE NORTH TQ. 11. SMT.
M. THAYAMMA W/O KADARAPPA AGED ABOUT 55 YEARS R/O NO. 1762/1 GEDDALAHALLI RMV 2ND STAGE BANGALORE – 560 094. NOTE: THE DEFENDANT NO.12 DIED ABOUT 3 MONTHS BACK PRIOR TO PASSING OF THE ORDER PASSED BY THE TRAIL COURT. HIS L.RS HAVE NOT BEEN BROUGHT ON RECORD IN TRAIL COURT. HENCH HE IS DESCRIBED AS DEAD IN THIS APPEAL, AND HIS L.R.S ARE NOT MADE AS PARTIES IN THIS APPEAL. …RESPONDENTS
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(BY SRI. C P DHANJAYA ADVOCATE FOR R10(A);
SRI. C.RAJANNA, ADVOCATE FOR R9(B,D AND F);
V/O DATED 19.06.19, NOTICE TO R1 IS HELD SUFFICIENT;
V/O DATED 30.07.19, NOTICE TO R2, R4, R5 AND R7 IS HELD SUFFICIENT;
R8 AND R11 ARE SERVED;
V/O DATED 22.01.25, NOTICE TO R6 AND R9 (C) ARE HELD SUFFICIENT;
R9(E) IS SERVED;
V/O DATED 01.08.24, R3 AND R3(A) ARE DELETED)
THIS MFA FILED U/O 43 RULE 1(r) OF CPC, AGAINST THE
ORDER DATED.13.08.2014 PASSED ON I.A. NO.1 IN O.S.NO.5186/2011 ON THE FILE OF THE XVII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, ALLOWING I.A. NO.1 FILED U/O 39 RULE 1 & 2 OF CPC, FOR T.I.IN TIME.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
ORAL JUDGMENT
Though the appeal is listed for admission, but with consent of both the learned counsels appearing for the parties, the matter is taken up for final disposal.
2. Defendant Nos.9 and 13 to 21 in O.S.No.5186/2011 have preferred this appeal challenging the order dated 13.08.2014 passed on I.A.No.I filed under
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Order XXXIX Rules 1 and 2 read with Section 151 of CPC for temporary injunction in O.S.No.5186/2011 on the file of the XVII Additional City Civil and Sessions Judge, Bengaluru (hereinafter referred to as 'the Trial Court' for short), thereby, the Trial Court has allowed the application by granting an order of temporary injunction restraining the defendants, their agents or anybody claiming through them from alienating or creating any third party rights over the suit schedule property. 3. For the sake of convenience and easy reference, the parties are referred to as per their rankings before the Trial Court. 4. The plaintiff has filed suit for partition and separate possession by metes and bounds claiming that the suit schedule properties are ancestral and joint family properties. The plaintiff with an apprehension that the defendants have sold out some of the properties and thus it affects the right of the plaintiff to claim share in the suit schedule properties. Therefore, filed an application for
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seeking an order of temporary injunction against the defendants and that is allowed by the Trial Court. 5. The contention of the defendants is that there was earlier partition in the family and it was mutated in the revenue records as per IHC No.8/1989-90 in the year 1989, wherein all the properties are divided between coparceners and the said partition was acted upon. Thus, in this way there is no joint family properties hence, the suit is not maintainable. 6. As per the defendants, the partition effected in the family was oral partition and it was acted upon by entering names of the respective coparceners in the revenue records. Learned counsel for the appellants submitted that Annexure-J to the appeal memorandum is the mutation extract which proves the fact that there was partition in the family. 7. Upon perusing the said document there is no mentioning that the plaintiff’s father was also granted
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share in the property. The previous partition in the family is a matter of disputed fact to be adjudicated during the trial. Whether there was previous partition or even if there was previous partition or whether the property is equally distributed between the coparceners according to their value and extent are all to be considered during the full-fledged trial.
The Trial Court by convincing prima facie that defendant No.6 and his children have sold some of the properties by virtue of registered sale deed dated 26.12.2013, therefore, the Trial Court is of the opinion that since the plaintiff is also entitled share in the suit schedule properties being coparcener and find that defendant No.6 and his children have already sold some of the properties and in such an event if temporary injunction is not granted, then the defendants may alienate the land which affect the right of claim of share of the plaintiff. Therefore, by forming opinion that the plaintiff has made out prima facie case and balance of convenience and if an
order of temporary injunction is not granted restraining the defendants from alienation then the plaintiff would be
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put into irreparable loss. Accordingly, granted an order of temporary injunction.
8. When certain disputed facts are emerged by the very pleading of the defendants in the written statement that there was previous partition in the family and this fact has to be adjudicated during trial and also there is prima facie case is made out that defendant No.6 and his children have sold some of the properties through registered sale deed. Therefore, in this regard, the Trial Court is correct in holding that the plaintiff has made out prima facie case for grant of an order of temporary injunction for the reasons discussed above, which is needs no interference. Therefore, the appeal is liable to be dismissed.
9. Accordingly, the appeal is dismissed.
10. The suit filed in the year 2011 even after lapse of 13 years, the suit is not decided. Hence, the Trial Court
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is directed to dispose of the suit within a period of nine months from the date of copy of receipt of this order.
SD/- (HANCHATE SANJEEVKUMAR) JUDGE SRA List No.: 1 Sl No.: 27