MUNIAKKAYAMMA WIFE OF NARAYANAPPA Vs. SRI. D.N. MUNISHWAMIGOWDA, S/O. LATE NAGAPPA AND M. PRASANTHKUMAR, S/O. NARAYANAPPA

JUDGEMENT

(1.) THIS is a Defendant's second appeal on the ground that the Plaintiff is not entitled to maintain a suit for injunction as he is not the legal heir of Smt. Venkata Lakshamamma. Though Plaintiff claimed that he is the husband of Smt. Venkata Lakshamamma, he has not produced any evidence documentary in support of the same. It is specifically contended in the written statement that Plaintiff has no relationship with deceased Smt. Venkata Lakshamamma. The Trial Court has failed to frame an issue to this effect and therefore the courts below have committed an error and accordingly learned Counsel submits to remand the matter to Trial Court to frame an issue and decode the same after affording an opportunity to the parties to lead evidence.

(2.) ON the contrary learned Counsel for the Plaintiff submits that Plaintiff is none other than husband of Smt. Venkata Lakshamamma in whose favour 1/4th share has been allotted in O.S. No. 122/72 which decree is put in execution in FDP.5/10 and pending consideration. It is submitted that the relief granted is only restraining the Defendant No. 1 from alienating the property either in favour of Defendant No. 2 or anybody else till disposal of FDP. Therefore no harm is caused to the Defendant and prays for dismissed.

(3.) THE Defendant having filed the written statement has failed to assist the court thereafter. Actually at his instance remand may not be proper. But to do Justice this appeal is allowed. Impugned judgment and decree of both the courts below are hereby set aside. The matter is remitted to Trial Court with a direction to frame an additional issue as to 'Whether the Plaintiff is husband of Smt. Venkata Lakshamamma to maintain the suit for injunction?, afford reasonable opportunity to both the parties are left open. The parties are directed to appear before the Court on 15.02.2011. The Defendant -Appellant is directed to pay lost of Rs. 3,000/ - to the Plaintiff on that day. The learned Counsel for the Appellant undertakes that Appellant will not alienate the suit schedule property till 21.02.2011. Liberty is reserved to the Plaintiff to move an application for necessary interim order before the Trial Court, which shall be considered and disposal of by the Trial Court in accordance with law.