LEELAVATI Vs. HARSHAVARDHAN

JUDGEMENT

(1.) This appeal is filed by appellants -plaintiffs praying to set aside the order dtd. 2/7/2024 passed in IA No.2 in O.S.No.175/2024 by the Senior Civil Judge, Hungund and to allow IA No.2 in O.S.No.175/2024.

(2.) Appellants -plaintiffs have filed suit for relief of partition, separate possession of their share in suit properties described in schedule -B and C properties. Plaintiff No.1 is wife, plaintiff Nos.2 to 4 and defendant No.1 are children of late Pulikeshappa S/o Narayanappa Aralikatti. The plaintiff Nos.2 to 4 and defendant No.1 are children of plaintiff No.1 and late Pulikeshappa. The said Pulikeshappa died on 30/5/2021 leaving behind plaintiffs and defendant No.1. Seven item properties are described in schedule -B and one item of property is described in schedule -C. The case of plaintiffs that all properties described in schedule -B and schedule -C are joint family properties of plaintiffs and defendant No.1 and they are in their joint possession and enjoyment. It is further case of plaintiffs that there was no partition between plaintiffs and defendant No.1 in respect of all properties contained in schedule B and C. It is further case of plaintiffs is that even though some of properties are standing in the name of parties to the suit they are acquired out of nucleus of joint family. With these contentions plaintiffs have filed the suit for partition for claiming their 4/5 share in suit schedule B and C properties. Defendant No.1 who has entered his appearance in the suit has filed IA No.3 under Order VII Rule 11(a) and (d) of CPC seeking rejection of plaint on the ground that item No.2 of schedule- B property bearing Sy. No.66/3 measuring 03 acres 25 guntas is standing in his name as he has purchased it out of his self earnings and therefore, it is his self acquired property.

(3.) Plaintiffs have filed IA No.2 under order 39 Rules 1 and 2 of CPC seeking temporary injunction restraining defendant No.1 from receiving compensation in respect of property described in item No.2 of schedule -B till disposal of the suit. The said Sy.No.66/3 measuring 03 acres 25 guntas has been acquired for National Highway No.748-A and sum of Rs.1.00 crore 20 lakhs has been awarded as compensation which is now described in item No.2 of schedule -B. Defendant No.1 did not file separate objections to IA No.2 but filed memo adopting his contentions made in IA No.3 filed under Order VII Rule 11(a) and (d) of CPC as objections to IA No.2. The trial Court after hearing both parties has rejected IA No.2 filed by plaintiffs by impugned order. The said order of rejection of IA No.2 has been challenged by plaintiffs in this appeal.