RAMACHANDRA KRISHNAPPA HEGDE Vs. SURESH RAMACHANDRA HEGDE

JUDGEMENT

(1.) HEARD Shri Vijaykumar B. Horatti, learned counsel appearing for appellant and Shri S.V.Yaji, learned counsel appearing for R1. In the present appeal, order passed by Senior Civil Judge, Sirsi dated 17.09.2012 in O.S. No.11/2011 is sought for being set aside. Parties are referred to as per their rank in the Trial Court.

(2.) PLAINTIFF has filed a suit for partition and separate possession of suit schedule properties claiming 1/9th share in O.S. No.11/2011. Defendants 1 to 3 filed their written statement denying the averments made in the plaint and contending inter alia that there was a prior partition on 30.11.2010. However, it was contended by plaintiff that said partition is inequitable partition. Defendants 4 to 7 are also sailing with the plaintiff. Plaintiff along with defendants 4 to 7 filed an application under Order 39 Rules 1 and 2 CPC read with Section 94 and 151 of CPC seeking mandatory injunction to permit plaintiff to manage, cultivate, improve and harvest properties described in the application which are as under.

(3.) IT was the contention of plaintiff before the Trial Court that defendants 1 to 3 had set up the alleged partition deed dated 30.11.2010 in order to deprive him and defendants 4 to 7 of their legitimate share and to usurp the joint family properties and those properties are higher in value. It was also contended that defendants 1 to 3 are adopting double standards and in respect of properties allotted to their share under the alleged partition deed dated 30.11.2010 it is being cultivated whereas item Nos.1 and 2 of 'B' schedule and also 'C' schedule properties allotted to the share of plaintiff and defendants 4 to 7 have been neglected. Hence, it has been contended that value of the property allotted to their share under the alleged partition dated 30.11.2010 will be affected and thereby plaintiff and defendants 4 to 7 will be put to great loss. As such, plaintiff and defendants 4 to 7 sought for mandatory injunction to permit them to manage, cultivate, improve and harvest said properties without prejudice to their right or contentions. This application came to be resisted by defendant No.1 by filing detailed statement of objections, contending inter alia that application is not maintainable and asserting that partition deed dated 30.11.2010 is a legal and valid document and it is not inequitable or contrary to law. It is specifically contended that 1st defendant has not neglected the properties as alleged by the plaintiff. It was also contended that plaintiff and defendants 4 to 7 had objected for mutation entry being carried out by the Jurisdictional Revenue Authorities and the Trial Court had already passed an order of prohibition against the Revenue Authorities from carrying out mutation entries pursuant to said partition dated 30.11.2010 and on these grounds sought for rejection of the application. It was also contended that 1st defendant is always ready and willing to hand over the properties to plaintiff and defendants 4 to 7 as per share allotted to them under the partition deed dated 30.11.2010 in the event of suit being decreed as per said partition deed and as such, they sought for rejection of application. Trial Court after having examined rival contentions and on formulating points for determination has allowed the application and directed defendants 1 to 3 to hand over possession of items 1 and 2 of plaint 'B' schedule and plaint 'C' schedule properties in favour of plaintiffs and defendants 4 to 7 forthwith. Trial Court has also permitted the plaintiff and defendants 4 to 7 to manage, cultivate, improve and harvest corps in those properties till final adjudication of suit. This order is under challenge in the present appeal.