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2022 Supreme(Online)(Kar) 49126
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 16TH DAY OF JUNE, 2022
BEFORE
THE HON9BLE MR. JUSTICE PRADEEP SINGH YERUR
MFA NO.101088/2022 (CPC)
BETWEEN:
1.
NINGAPPA S/O SHIVAPPA KAMAKERI
AGE. 54 YEARS, OCC. SERVICE,
R/O.NO.26, 1ST CROSS, KEMPAGERI
NEAR SANGAM TALKIES, RAMANAGAR,
DHARWAD-580001
2.
SMT. JAYASHRI W/O. NINGPPA KAMAKERI
AGE. 50 YEARS, OCC. HOUSEWIFE,
R/O.NO.26, 1ST CROSS, KEMPAGERI
NEAR SANGAM TALKIES, RAMANAGAR,
DHARWAD-580001
3.
ABHIJIT S/O NINGAPPA KAMAKERI
AGE. 27 YEARS, OCC. STUDENT,
R/O.NO.26, 1ST CROSS, KEMPAGERI
NEAR SANGAM TALKIES, RAMANAGAR,
DHARWAD-580001
...APPELLANTS.
(BY SHRI J S SHETTY, ASSOCIATES AND SHRI ANAND DESAI,
ADVOCATES.)
AND:
1.
SMT. AKKAVVA W/O SHIVAPPA KAMAKERI
AGE. 64 YEARS, OCC. HOUSEHOLD WORK,
R/O.MURUGAMATH COMPOUND
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SAVADATTI ROAD, MRUTYUNJAYA NAGAR,
DHARWAD-580001
2.
HANUMANTH S/O SHIVAPPA KAMAKERI
AGE. 37 YEARS, OCC. PRIVATE WORK,
R/O.MURUGAMATH COMPOUND
SAVADATTI ROAD, MRUTYUNJAYA NAGAR,
DHARWAD-580001
3.
BASAVARAJ S/O SHIVAPPA KAMAKERI
AGE. 41 YEARS, OCC. PRIVATE WORK,
R/O.NO.MURUGAMATH COMPOUND
SAVADATTI ROAD, MRUTYUNJAYA NAGAR,
DHARWAD-580001
4.
ANIRUDDA S/O NINGAPPA KAMAKERI
AGE. 19 YEARS, OCC. STUDENT
R/O. NO. 26, 1ST CROSS, KEMPAGERI
NEAR SANGAM TALKIES, RAMANAGAR,
DHARWAD-580001
5.
MANGING DIRECTOR
MRN CANE POWER INDIA LTD.,
KALLAPUR, S.K.KHANAPUR S.K.
TQ. BADAMI, DIST. BAGALKOTE-587201
6.
MANAGING DIRECTOR
EID PYARI (INDIA) LTD.,
KHANPETA, RAMADURGA,
DIST. BELAGAVI-591123
&RESPONDENTS.
(BY SHRI R.H.ANGADI, ADVOCATE, FOR R.1 AND R.2;
R.3, R.5 & R.6 3 NOTICE SERVED;
R.4 3 SERVICE OF NOTICE HELD SUFFICIENT.)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
ORDER 43 RULE 1(R) OF THE CODE OF CIVIL PROCEDURE, 1908,
PRAYING TO SET ASIDE THE ORDER DATED 18.02.2022, PASSED
ON I.A.NO.3 IN O.S.NO.27/2022, ON THE FILE OF THE
I ADDITIONAL SENIOR CIVIL JUDGE AND CHIEF JUDICIAL
MAGISTRATE, DHARWAD, ALLOWING THE APPLICATION FILED
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UNDER ORDER 39 RULE 1 AND 2 READ WITH SECTION 151 OF
CPC, BY ALLOWING THIS APPEAL, ETC.,.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
This appeal is preferred by defendants No.1, 2
and 4, aggrieved by the order dated 18.2.2022, passed
by the I Addl. Senior Civil Judge and CJM, Dharwad, on
I.A.No.3 in O.S.No.27/2022.
2.
The parties shall be referred to as per their
status before the trial Court for the sake of convenience.
3.
The plaintiffs filed a suit for partition and
separate possession of their legitimate share in the suit
schedule properties. Plaintiff No.1 is the mother of
plaintiff No.2, defendants No.1 and 3. Defendant No.2 is
the wife, defendants No.4 and 5 are the children of
defendant No.1. There are 4 items of suit schedule
properties out of which 1 to 3 are immovable properties
and item No.4 is movable property of FD amount of 54
lakh rupees lying in Karnataka Vikas Grameen Savings
Bank account belonging to the propositus, the husband
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and father of plaintiffs No.1 and 2 respectively. Along
with the suit filed seeking partition and separate
possession, the plaintiff filed an application under Order
39 Rule 1 and 2 of CPC seeking temporary injunction
restraining the defendants No.6 and 7 from disbursing
the sugarcane bill amount to defendants No.1, 2, 4 and 5
till disposal of the suit, which application came to be
contested by the defendants and after hearing the
respective counsel for the plaintiffs and defendants, the
trial Court allowed I.A.No.3 filed by the plaintiffs under
Order 39 Rule 1 and 2 read with section 151 of CPC and
passed an order restraining the defendants No.6 and 7
from disbursing the sugarcane bill amount to defendants
No.1, 2, 4 and 5 till disposal of the suit.
4.
The sum and substance of this suit and
contents of the application is that propositus Shivappa
S/o.Ningappa Kamakeri had executed an agreement of
sale in respect of agricultural lands in Sy.No.191/2K/1
and 191/2K/2 situated at Sirasangi village in Savadatti
taluk for a total sale consideration of Rs.25,29,000/-, of
which paid earnest money of Rs.22,00,000/- to the
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vendors.
The
said
Shivappa,
propositus
died
on
25.12.2018. It is contended in the suit that defendant
No.1 has colluded with defendant No.3, created fake
power
of
attorney
on
28.9.2016
in
favour
of
2nd defendant and through the said special power of
attorney got the agreements of sale cancelled on
15.12.2016 and on the same day he got the sale deeds
executed
in
his
name
for
sale
consideration
of
Rs.22,32,000/-. There are several allegations made
against the defendants herein and that the plaintiffs are
none other than the wife and son of propositus Shivappa.
Accordingly they are entitled to half share in the suit
schedule properties.
5.
It is the case of defendant No.1 that they are
cultivating the suit schedule properties. The suit schedule
properties are the self acquired properties of the
defendant No.1 and they have invested huge amount of
money for growing sugarcane and accordingly they have
sold sugarcane to the vendors as described in the
additional documents produced at page Nos.55-56 of the
memo dated 15.6.2022. On the basis of arguments
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addressed by both the counsel appearing for plaintiffs as
well as the defendants, the trial Court has held that the
property is admittedly the joint family property and that
though the defendant9s vendors purchased the suit
schedule properties at Sl.No.2 and 3 out of his own
earnings. There are no documents at this stage to show
that they are the self acquired properties of defendant
No.1. It is vehemently contended by the learned counsel
appearing for the appellants/defendants that the plaintiff
No.1 married the propositus during the lifetime of the 1st
wife and therefore plaintiffs are not entitled to any share
in the suit schedule properties. Therefore opposed the
application filed for injunction sought for by the plaintiffs.
6.
It is seen from the averments made in the
plaint that admittedly the plaintiff No.1, is the 2nd wife of
the propositus Shivappa and plaintiff No.2 is born to the
1st plaintiff i.e., the 2nd wife. The application in
