Challenging order dated 06.09.2022 passed by Principal

Senior Civil Judge and CJM., Shivamogga, on I.As.no.1 and 7 in

O.S.no.41/2022, this appeal is filed.

2.

Appellant herein was plaintiff, while respondent was

defendant.

3.

O.S.no.41/2022 was filed seeking for decree of partition

of plaintiff’s half share in all schedule ‘A’ and ‘B’ properties; for

direction to defendant to furnish accounts, income derive and for

share in mesne profits and also for permanent injunction restraining

defendant from entering into cheni agreement with third person to

reap crop or reap and sell areca-nut without consent of plaintiff etc.

Schedule

‘A’

included

immovable

properties

comprising

of

residential sites, agricultural land (including areca-nut and coconut

garden land), shop premises etc.; while schedule ‘B’ movable

properties included gold and silver ornaments/article etc.

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4.

In said suit, plaintiff filed I.A.no.I under Order XXXIX

Rules 1 and 2 of CPC, seeking following prayer:

"to RESTRAIN The defendant from entering

into any cheni agreement with third persons to

reap the crop OR reap and selling the crop of the

suit schedule arecanut garden lands without the

presence and written consent of the plaintiff by an

Order OF AD-INTERIM EX PARTE TEMPORARY

INJUNCTION till the disposal of the suit on

allowing this I.A. with cost in the ends of justice."

5.

In affidavit filed in support of said application, it was

stated that Sri K.Nalla Thandapani @ K.Nalla Dandapani during his

lifetime had acquired items no.1 to 11 of suit properties out of his

earnings, therefore they were his self-acquired properties. It was

further stated that said Sri K.Nalla Thandapani died intestate

leaving behind plaintiff and defendant as his only Class-I heirs,

therefore, they were having half share each in suit properties.

6.

It

was

further

stated

that

Smt.Thilothame

was

possessing items no.12 to 16 of suit schedule and other land in

Sy.no.6/1P1

of

Kadadakatte

village,

measuring

32

guntas,

Sy.no.69/P2, measuring 02 acres 24 guntas and Sy.no.73/1

measuring 12.5 guntas of Jedikatte village. It was stated that she

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bequeathed said lands in favour of plaintiff under registered Will

dated 03.12.2015 and after her death plaintiff had succeeded to

said property which were her exclusive property. It was also stated

that insofar as items no.12 to 16, there was no testament,

therefore plaintiff and defendant were entitled for half share each in

said properties.

7.

Insofar as items no.17 to 25, it was stated that they

were ancestral properties and as there was no partition, both

plaintiff and defendant entitled for half share each. It was stated

that said properties fetch annual income of atleast Rs.1,50,000/-. It

was further asserted that items no.26 and 27 were under adverse

possession of their mother - Smt.N.Thilothame, but, after her death

though plaintiff and defendant were in joint possession, defendant

alone had harvested crop and was not sharing income with plaintiff.

8.

It was further stated that during lifetime of parents due

to misbehavior of defendant and his wife including assault, their

father Sri K.Nalla Thandapani had lodged complaint with Jayanagar

Police Station, Shivamogga. Defendant was later sent out of house

in July, 2019, since then defendant was living away from parents.

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It was stated that at time of death of parents, there were standing

crops and arecanut in deposit apart from cash deposits in relation

to which P & SC no.3/2021 was filed before II Additional Senior Civil

Judge, Shivamogga. With mutual consent, Succession Certificate

was issued in joint names of plaintiff and defendant. Thereafter,

they got transferred said amount to their names by sharing it.

9.

It was further alleged that defendant was collecting

rental income in respect of items no.13, 17 and 14 apart from cash

of Rs.54,78,460/- held by Sri. K.Nalla Thandapani at time of his

death. Thereafter, when plaintiff and defendant were supposed to

apply for change o