S. Parvathamma vs B.S. Nataraja Murthy and Others

S.N. Satanarayana, J.—This appeal is filed challenging the interim order dated 17.7.2003 passed on I.A. No. 2 in O.S. No. 4919/1998 on the file of the 8th Addl. City Civil Judge, Bangalore.

The facts leading to this appeal are that the appellant herein is plaintiff in the court below and respondents herein are defendants. The entire litigation pertains to the title in respect of the suit schedule property, which was earlier belonged to one Shivanna said to be the lather of plaintiff. It is the case of plaintiff that on 12.12.1957 the suit schedule property was settled in favour of herself and her mother by her father Shivanna under registered documents. Thereafter, she was given away in the marriage on 20.6.1962. It is her case that her mother died on 18.1.1991 and her father died on 8.5.1996. Subsequent to death of these two persons she tried to implead herself in an HRC proceeding initiated by her father during his lifetime in HRC. No. 1409/1992 against defendant No. 10 in the original suit. It is her case that at that time she came to know that defendants 2 and 3 in the original suit are also claiming the suit schedule property under various registered documents said to have come into existence subsequent to the settlement deed dated 12.12.1957 executed by Shivanna in favour of herself and her mother jointly. Hence in the aforesaid suit plaintiff has filed several applications. One of that is IA.II seeking for an order of injunction against defendants 1 to 3 herein restraining them from alienating the suit schedule property pending disposal of the suit. In addition to that she had filed several applications in IA. Nos. III, IV, V and XI in the said suit All the said applications i.e., IA. Nos. II to V and XI are heard by the court below and disposed of by a common order dated 17.7.2003. A portion of the said order pertaining to IA. No. II is being challenged in this appeal by the plaintiff.

The contention of the appellant/plaintiff is that since the settlement deed dated 12.12.1957 executed by her father in favour of herself and her mother jointly is not set aside in any judicial proceedings or in a manner known to law, any document executed by her father or any other person in respect of the suit schedule property will not take away her right.

Per contra, the contention of respondents 1 to 3, who are defendants 1 to 3 in the original suit is that the plaintiff is not the natural daughter of Shivanna. She is only a foster daughter, she had no right to get the said document executed in her favour end the document executed in favour of herself and her mother jointly had several lacunas. Hence, it was cancelled on 4/17.9.1962 by her father Shivanna and thereafter, the said property came to 1st defendant. It is also the case of defendants 1 to 3 that 1st defendant is the son of plaintiff and defendants 2 and 3 are the sons of 1st defendant and grand children of plaintiff, which is disputed by the plaintiff.

Considering the disputed relationship between the plaintiff and defendants 1 to 3 and also the fact that there existed a settlement deed in respect of the suit schedule property executed in favour of the plaintiff and her mother at an undisputed point of time, the court below ought to have considered plaintiffs prayer for interim order with utmost care, caution and concern. The reason given by the court below in dismissing the application IA. No. II is without any basis and rational behind it Hence the said order requires to be set aside.

At this juncture counsel for the defendants 1 to 3 submits that in the original suit defendants'' evidence is over and when it is in the stage of arguments the plaintiff filed an application for adducing further evidence and submits that a direction may be issued to the court below to expedite the matter.

In view of the above, the appeal is allowed without any order as to costs. The order dated 17.7.2003 in respect of IA. No. II in OS. No. 4919/1998 is set aside. Defendants 1 to 3 in the aforesaid suit are directed not to alienate the suit schedule property or create third party interest in the suit schedule property pending disposal of the original suit. The court below is directed to expedite the matter and dispose of the same at the earliest and while doing so the court below should not get influenced by the observations made by this Court while setting aside the order on IA. No. II while deciding the original suit on merits.