MAMATHA R. Vs. M. VENKATALAKSHMI

JUDGEMENT

(1.) Heard the learned counsel appearing for the respective parties.

(2.) This appeal is filed challenging the order passed by the Trial Court in disposing of the application filed under Order XXXIX Rule 1 and 2 of CPC rejecting the prayer of restraining defendant No.21 from putting up the construction and permitted defendant No.21 to proceed with the construction as per the sanction plan in the plaint schedule property subject to the conditions that defendant No.21 shall put up the construction in accordance with the sanction plan; defendant Nos.21, 1 to 4 and other parties to the JDA shall file a memo showing the flats which would be allotted to the share of legal heirs of late Ramu and also show the flats which can be allotted towards the 1/5th share in the 1/3rd share of late Ramu; the plaintiff also given liberty to choose any of the flats marked towards the 1/15th share as per the clause (b) above which could be allotted to the share of the plaintiff towards her share in the property if the vacant land cannot be allotted to her share. Further direction was given that defendant Nos.21, 1 to 4 shall give an undertaking in this suit that they shall not alienate or create any encumbrance over the said flat which is chosen by the plaintiff as per Clause (c); defendant No.21 is permitted to proceed with the constructions forthwith and directed to comply with the conditions imposed.

(3.) Being aggrieved by the said order, the present appeal is filed by the appellant/plaintiff before this Court saying that the said conditions are not complied. Now the appellant has filed a memo before this Court accepting the proposal given by defendant No.21 that is flat No.SF-09, 3 BHK having super built up area of 1495 square feet with undivided share of 449 square feet and car parking in the said apartment. Defendant No.1 also filed an affidavit in compliance to the order of the Trial Court. But the counsel for the appellant submits that defendant Nos.2 to 4 have not complied the same. The counsel Sri V B Shivakumar submits that defendant Nos.2 to 4 also give an undertaking by filing affidavit before the Trial Court that they are not going to claim anything in respect of the flat which has been chosen by the plaintiff within a period of five days. When the conditions are complied giving an option to the appellant/plaintiff and the appellant also opted the particular flat and both defendant No.21 as well as defendant Nos.1 already complied with the directions and defendant Nos.2 to 4 are going to comply with the same within five days, nothing is there to decide in this appeal. Accordingly, this appeal is disposed of. The Trial Court while considering the matter on merits shall not influence with the observations made by this Court. The Trial Court is directed to dispose off the matter expeditiously.