: 1 :

IN THE HIGH COURT OF DHARWAD BENCH

DATED THIS THE 17 T H DAY OF JULY 2014

BEFORE

THE HON’BLE MR.JUSTICE A.N.VENUGOPALA GOWDA

M.F.A.NO.100771/2014 (CPC)

BETWEEN:

1. KUMARI RAMYA D/O. BASAVARAJ AGE: 15 YEARS, OCC: STUDENT R/O. , NOW AT DHARWAD DIST: DHARWAD SINCE MINOR R/BY HER GUARDIAN BROTHER RAGHUVEER S/O. BASAVARAJ NEGINHAL AGE: 20 YEARS, OCC: STUDENT R/O. GOKAK, NOW AT DHARWAD DIST: DHARWAD.

2. RAGHUVEER S/O. BASAVARAJ NEGINHAL AGE: 20 YEARS, OCC: STUDENT R/O. GOKAK, NOW AT DHARWAD DIST: DHARWAD.

... APPELLANTS (BY SRI PRASHANT HOSMANI FOR SRI S S PATIL, ADVOCATE.)

AND

1. MALLIKARJUN S/O. BHIMAPPA IRAPPAGOL AGE: 40 YEARS, OCC: AGRICULTURE R/O. OF GOKAK NOW AT AZAM NAGAR, 2 N D CROSS, BEHIND NEHRU NAGAR, .

2. SANGEETA W/O. SHASHIKUMAR BAGOJI AGE: 35 YEARS, OCC: HOUSEHOLD WORK R/O. 10 T H CROSS, VIVEKANAND NAGAR, GOKAK DIST: BELGAUM. : 2 :

3. NAGAPPA S/O. GURUSIDDAPPA RUDRANNAVAR AGE: 45 YEARS, OCC: AGRICULTURE R/O. , TQ: GOKAK DIST: BELGAUM.

4. SHIVABASAPPA S/O. GURUSIDDAPPA RUDRANNAVAR AGE: 40 YEARS, OCC: AGRICULTURE R/O. MANIKWADI, TQ: GOKAK DIST: BELGAUM.

5. VINAY S/O. MALLIKARJUN CHUNAMARI AGE: 44 YEARS, OCC: BUSINESS, R/O. SOMAWAR PETH, TQ: GOKAK, DIST: BELGAUM.

6. VIVEK S/O. MALLIKARJUN CHUNAMARI AGE: 40 YEARS, OCC: BUSINESS R/O. GOKAK, TQ: GOKAK, DIST: BELGAUM.

7. ROHIT S/O. PARSHURAM AGE: 30 YEARS, OCC: BUSINESS R/O. BASAVA NAGAR, NEAR GANGA HOSPITAL, GOKAK, DIST: BELGAUM

8. BASAVARAJ S/O. MALLESHAPPA NEGINHAL AGE: 50 YEARS, OCC: AGRICULTURE R/O. GOKAK, NOW AT: DHARWAD DIST: DHARWAD

9. LAXMI W/O. BASAVARAJ NEGINHAL AGE: 37 YEARS, OCC: HOUSEHOLD WORK & SERVICE R/O. GOKAK, NOW AT: DHARWAD DIST: DHARWAD

10. SHANTA W/O. PARSURAM SHINGALAPUR AGE: 50 YEARS, OCC: HOUSEHOLD WORK R/O. GOKAK, DIST: BELGAUM

11. BASAVARAJ S/O. VIRUPAXAPPA ANGADI AGE: MAJOR, OCC: BUSINESS R/O. GOKAK, DIST: BELGAUM : 3 :

12. MAHADEV S/O. VIRUPAXAPPA ANGADI AGE: MAJOR, OCC: BUSINESS R/O. GOKAK, DIST: BELGAUM

13. VISHWANATH S/O. VIRUPAXAPPA ANGADI AGE: MAJOR, OCC: BUSINESS R/O. GOKAK, DIST: BELGAUM

14. RACHAPPA S/O. VIRUPAXAPPA KARCHANNAVAR AGE: MAJOR, OCC: BUSINESS, R/O. GOKAK, DIST: BELGAUM.

... RESPONDENTS (BY SRI VINAY S.KOUJALAGI, ADVOCATE FOR R5 & R6, NOTICE TO R1-4 & R7-14 DISPENSED WITH.)

THIS MFA IS FILED U/SEC.104 R/W. ORDER XLIII RULE 1(R) OF CPC, AGAINST THE JUDGMENT AND ORDER DATED 18.02.2014, PASSED IN O.S. NO.365/2013 ON I.A.NO.1, ON THE FILE OF THE I ADDL. SR. CIVIL JUDGE, GOKAK, DISMISSING THE IA NO.1 FILED U/O. XXXIX RULE 1 AND 2 OF CPC, ETC.,.

THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

JUDGMENT

Appellants are plaintiffs in O.S.No.365/2013 on the file of the I Addl. Senior Civil Judge at

Gokak. Suit has been instituted to pass a decree for partition and separate possession and for declaration that the sale deeds executed by defendant no.8 in favour of defendants 1 to 7 and

10 to 14 are not binding upon them. Along with : 4 : the suit I.A.No.1 was filed to pass an order of temporary injunction restraining the defendants

5 and 6 from putting up any construction on

Sy.No.211/1A/1. The application having been opposed and upon consideration having been dismissed, vide order dated 18.2.2014, feeling aggrieved, the plaintiffs have filed this appeal.

2. Learned advocate for the appellants contended that the order passed by the trial Court being not clear i.e., with regard to defendants

5 and 6 being denied any equitable right, this appeal may be disposed of by making the position clear and by directing the trial Court to decide the suit with expedition.

3. Learned advocate appearing for respondents 5 and 6, on the other hand pointed out that there is already an observation made by the trial Court with regard to defendants 5 and 6 being put on notice with regard to the consequences which would follow in case the suit : 5 : were to be decreed, in that, defendants 5 and 6 being denied any equitable right and hence there being no need to make any further observation. He submitted that his clients have no objection for the trial Court being directed to decide the suit in a time bound manner.

4. Plaintiff no.1 is a minor and plaintiff no.2 is brother of plaintiff no.1. Suit was instituted on 18.11.2013 to pass a decree and effect equitable partition by metes and bounds and award to the plaintiffs their separate half share in the suit properties by declaring that the sale deeds executed in the names of defendants 1 to 7 and 10 to 14 are not binding on the shares of the plaintiffs.

5. Schedule A comprises of agricultural lands and schedule B comprises of non agricultural properties and schedule C comprises of building. In the suit, I.A.No.1 was filed to pass an ad-interim order of temporary injunction : 6 : restraining the defendants 5 and 6 from making any construction on item no.2 of plaint schedule

B property. The learned trial Judge having found that one of the documents produced by defendants 5 and 6 reveals that defendants

8 and 9 along with plaintiff no.2 have sold the property in favour of one Mallikarjun and finding that there is no prima facie case for grant of the relief prayed in I.A.No.1, has passed the order dated 18.2.2013, dismissing the application.

While passing the said order, having noticed that the defendants 5 and 6 have attempted to construct building on the disputed property at their risk, it has been made clear that “even if they were to spend considerable sum for construction/ development, that would be at their cost and risk and that they cannot claim any equity.”

6. Since learned advocate appearing for respondents 5 and 6/defendants 5 and 6, : 7 : submitted that his clients would not claim any equity on account of the investment made for the development of the property shown in the schedule of I.A.No.1, there is no need for the plaintiffs/appellants to apprehend that the trial

Court while deciding the suit would apply the principle of equity and allot the developed property in favour of defendants 5 and 6. “ Since the trial Court has sufficiently protected the interest of the plaintiffs, by making observations in the impugned order, there is no need for me to reemphasize with regard to the equity rights of the parties.”

In the result, appeal is disposed of by making clear that in case the defendants 5 and 6 were to develop the property in question, they shall be doing so at their cost and risk and they shall not claim any equity. The suit being one for partition and separate possession, in case the plaintiffs extend necessary co-operation, the trial : 8 :

Court is directed to expedite the final decision of the suit and decide the same at an early date, since plaintiff no.1 is a minor and in such a case the provisions made in Karnataka Case Flow

Management in Subordinate Courts Rules, 2005 can be applied.

Consequently I.A.No.1/2014 does not survive for consideration.

Ordered accordingly.

SD/- JUDGE Mrk/-