THE HON’BLE MR.JUSTICE ARAVIND...
-
Upload
nguyendien -
Category
Documents
-
view
219 -
download
1
Transcript of THE HON’BLE MR.JUSTICE ARAVIND...
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 3RD DAY OF SEPTEMBER, 2014
BEFORE
THE HON’BLE MR.JUSTICE ARAVIND KUMAR
MISCELLANEOUS FIRST APPEAL NO.5894/2013 (CPC)
BETWEEN: SRI M.P. KAVISHA S/O M.B. PANCHAKSHARAIAH AGED ABOUT 52 YEARS BUSINESS, R/O VIJAYAPURA EXTENSION CHIKMAGALUR- 577 101. … APPELLANT (BY SRI.S KALYAN BASAVARAJ, ADVOCATE)
AND: 1. SMT. VASANTHAMALA DATTATRI, W/O LATE DATTATRI AGED ABOUT 56 YEARS HOUSEWIFE 2. DR. SRINIVAS S/O LATE DATTATRI AGED ABOUT 38 YEARS DOCTOR BY PROFESSION. 3. MR. SRIKANTH S/O LATE DATTATRI AGED ABOUT 33 YEARS EMPLOYEE IN BANK ALL ARE RESIDING AT BASAVANAHALLI MAIN ROAD CHIKMAGALUR-577 101.
2
4. THE COMMISSIONER CITY MUNICIPAL COUNCIL CHIKMAGALUR-577 101. … RESPONDENTS (BY SRI. P.N. MANMOHAN, ADVOCATE FOR R-1 AND R-2; NOTICE TO R-4 SERVED; NOTICE TO R-3 DISPENSED WITH V/O DATED 19.11.2013) THIS APPEAL IS FILED UNDER ORDER 43 RULE 1(r) OF CPC PRAYING AGAINST THE ORDER DATED 15.06.2013 PASSED ON I.A.NO.III IN O.S.NO.118/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE, AND JMFC, CHIKMAGALUR, DISMISSING I.A.NO.III FILED U/O 39 RULE 1& 2 OF CPC, FOR T.I. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Unsuccessful plaintiff being aggrieved by order of
rejection of an application filed under Order 39 Rules 1 & 2
CPC is before this Court questioning correctness and legality
of said order dated 15.06.2013 passed by Addl.Civil Judge
(Sr.Dn) & JMFC, Chickmagalur in O.S.No.118/2012.
2. I have heard the arguments of Sri Kalyan
Basavaraj, learned Advocate appearing for appellant and Sri
P.N.Manmohan, learned Advocate appearing for respondents
– 1 and 2. Notice to respondent-3 has been dispensed with.
Respondent-4 is served and unrepresented. Though matter
3
is listed for admission by consent of learned advocates
appearing for the parties, it is taken up for final hearing.
3. Parties are referred to as per their rank in the
trial Court.
4. Plaintiff has filed a suit for declaration to declare
that he is the absolute owner in possession and enjoyment of
suit schedule property measuring 39’ x 75’ morefully
described in the plaint schedule and for perpetual injunction
to restrain the defendants from interfering with his alleged
possession of suit schedule property contending interalia
that Sy.No.18 of Basavanahalli village, Chickmagaluru
District originally belonged to one Smt.Tayamma @
Mookambikamma which had been purchased by her from
Sri Belur R. Soorappa and out of total extent of 1.22 acres
purchased by her, she gifted an extent of 18 guntas in favour
of Sringeri Mutt and remaining extent was 1.04 acres was
retained by her. It is also contended that said Smt.Tayamma
obtained permission from Deputy Commissioner,
Chickmagaluru to convert the land to non-agricultural
purposes. After obtaining permission, she formed sites each
measuring 50 gaja x 13 gaja which according to plaintiff
4
measures around 39 ft. x 150 ft. It is also contended that
she conveyed one such site to Smt.Meenakshamma under a
registered sale deed dated 01.10.1995, for which sale deed
her children had also affixed signatures as witnesses and
said Smt.Tayamma is none other than first defendant’s
husband’s mother and grandmother of defendants 2 and 3.
It is also contended that they were self acquired properties of
Smt.Tayamma. Plaintiff further contend that after forming
sites she sold all the sites except one site which was retained
by her and one such site which was purchased by
Smt.Meenakshamma inturn sold property in favour of
Ganesh Saw Mill represented by its partner Khimji Ramji
Jolapara under registered sale deed dated 22.12.1969 and
legal heirs of Khimji Ramji Jolapara inturn executed a power
of attorney in favour of D.K.Jolapara who inturn sold a
portion of the property in favour of plaintiff as well as father
of plaintiff under separate sale deeds. It is also contended
that under the partition effected between the family
members of plaintiff, schedule property came to be allotted
to the share of plaintiff and since then he was in enjoyment
of the same and he has also contended that first defendant is
attempting to interfere with the possession and enjoyment of
5
property by plaintiff under the guise of an order of eviction
passed in HRC No.6/1992. Plaintiff also filed an application
under Order 39 Rules 1 and 2 CPC seeking an order of
temporary injunction against defendants from interfering
with his possession.
5. Defendants after service of suit summons, have
appeared and filed their written statement denying the
averments made in the plaint and contended that suit itself
was not maintainable amongst other grounds urged in the
written statement. Trial Court after considering rival
contentions, has found that there is no primafacie case in
favour of plaintiff and balance of convenience does not lie in
favour of plaintiff and held if a order of temporary injunction
is granted, defendant would be put to irreparable loss and
injury and as such it dismissed the application by order
dated 15.06.2013 which is under challenge in this petition.
6. It is the contention of Sri Kalyan Basavaraj,
learned counsel appearing for appellant-plaintiff that trial
Court committed a serious error in rejecting the application
on the ground that in respect of suit schedule property
plaintiff had filed an application under Order 21 Rule 97
6
CPC in Execution petition No.98/2002 and same had been
rejected and also on the ground that suit in question is not
maintainable in view of Order 21 Rule 101 CPC by ignoring
Order 21 Rule 104 CPC. It is also contended by him that
every order made under Rule 101 or 103 of Order 21 CPC
would be subject to result of any suit that may be pending
on the date of commencement of the proceedings and in the
instant case, plaintiff had already filed a suit
O.S.No.209/2008 in the year 2008 and this aspect had been
lost sight of by trial Court. He would elaborate his
submission by contending that trial Court had failed to
consider that issue before the Executing Court was limited to
the extent of resisting possession of plaintiff’s lawful
possession over suit schedule property and adjudication of
claim made by the plaintiff before the Executing Court on an
application filed under Order 21 Rule 97 CPC and
dismissing of the same would not take away the right of the
applicant viz., plaintiff to file present suit in respect of suit
schedule property. He would also contend that plaintiff was
in lawful possession of suit schedule property and in the
event of temporary order of injunction is refused, he would
be dispossessed from his lawful possession and particularly
7
when a comprehensive suit for declaration and injunction is
pending and as such trial Court ought to have held there is
primafacie case in favour of plaintiff. Hence, he contends
that order passed by trial Court is liable to be set aside and
prays for allowing the application.
In support of his submissions, he has relied upon
following judgments:
(1) ILR 1991 KAR. 254 MESSRS.PARAMOUND INDUSTRIES vs C.M.MALLIGA.
(2) AIR 1998 KAR 186
V.K.RAMA SETTY vs. A.GOPINATH
7. Per contra, Sri P.N. Manmohan, learned
Advocate appearing for respondent-1 would support the
order passed by the trial Court and contends that despite
decree holders having obtained an order of eviction in the
year 1996 in HRC No.6/1992 till date, they have not been
able to enjoy the fruits of said decree and plaintiff having
filed an application on same set of facts as pleaded in the
present suit, by filing an application under Order 21 Rule 97
CPC in Execution petition No.98/2002 and having suffered
an order of rejection of said application which has been
confirmed by this Court cannot be heard to contend that he
8
has got his right, title and interest in respect of the property,
which is the subject matter of decree passed in HRC
No.6/1992 and said decree cannot be stalled by granting an
order of temporary injunction in the present suit. Hence, he
contends that there is neither primafacie case nor balance of
convenience in favour of appellant - plaintiff and if order of
temporary injunction is granted, defendants would be put to
irreparable loss and injury and as such, trial Court has
rightly rejected the application for temporary injunction and
as such he prays for dismissal of the appeal.
8. Having heard the learned Advocates appearing
for parties and on perusal of order in question as also
pleadings and documents filed by both parties having been
made available by the respective learned Advocates
appearing for parties during the course of their arguments, I
am of the considered view that following points would arise
for my consideration:
(1) Whether order passed by the trial Court dismissing I.A.III filed by plaintiff under Order 39 Rules 1 and 2 CPC deserves to be set aside, confirmed or modified?
(2) What order?
9
9. Before delving upon rival contentions raised and
adjudicated upon by trial Court, it would be necessary for
this Court to briefly state the facts or history of the present
case which has led to filing of the present appeal and same
can be crystallised as under:
First Defendant in the present suit initiated eviction
proceedings under Section 21(1)(f) &(h) of Karnataka Rent
Control Act, 1961 against one Sri Dheeru Bai in HRC
No.6/1992 which petition came to be allowed and same was
challenged before Addl.District Judge, Chickmagalur in
Rev.(Rent) 35/1996 and said revision also came to be
dismissed. Being Being aggrieved by the said order, further
revision in HRRP No.394/2000 was filed before this Court
which also ended in dismissal and while examining the plea
of tenant for grant of time, this Court after considering
contentions of learned Advocates appearing for the parties,
granted one year time to vacate on the condition that
revision petitioner – tenant therein filing an undertaking to
the said effect. Order passed by co-ordinate Bench of this
Court while dismissing the Revision Petition filed by tenant
reads as under:
10
“3. A broad consensus has been
arrived at as to how much time the
petitioner should be given for vacating the
premises. In the facts and circumstances of
the case, one year time from this day is
granted to vacate the premises on condition
that the petitioner files an undertaking to
the effect that she will withdraw all
contentions made in the petition and will
hand over vacant possession of the
premises to the respondent without
compelling the respondent to file an
execution petition, she will not induct any
tenant, she will pay the rent regularly every
month. The said undertaking shall be filed
by the tenant-petitioner within four weeks
from today. If such an undertaking is not
filed, the respondent is at liberty to
execute the order of eviction forthwith.”
(Emphasis supplied)
10. However, tenant did not file an undertaking
affidavit nor he vacated the premises. As such, an Execution
Petition No. 98/2004 came to be filed by decree holder to
enforce the judgment and decree passed by the trial Court.
In the said execution proceedings, brother of the plaintiff an
application under Order 21 Rule 97 CPC. Said application
11
came to be rejected. Same was confirmed by the District
Court in Regular Appeal and also confirmed in Second
Appeal by this Court. During the pendency of the said
application, present plaintiff filed a suit O.S.No.209/2008 for
the relief of permanent injunction before the Civil Court
which plaint came to be ordered to be returned for being
presented before the jurisdictional Court in view of further
relief of declaration sought for by the plaintiff and pecuniary
jurisdiction being vested in a different Court. Thereafter,
during the pendency of said suit and after dismissal of the
application filed by his brother, plaintiff filed an application
under Order 21 Rule 97 CPC claiming title to the said
property which was the subject matter of Execution
Proceedings 98/2002, and said application came to be
rejected. In the said application, it was contended that
decree holder is attempting to execute the decree in respect
of portion of the property belonging to the obstructor which
was not the subject matter of execution proceedings. Said
contention came to be negatived and application came to be
rejected by the Executing Court. Said order was also
confirmed by lower appellate Court and affirmed by co-
ordinate Bench of this Court. For the purpose of
12
convenience, dates on which above proceedings came to be
disposed of or dismissed/allowed is tabulated herein below:
06.01.1996 HRC 6/1992 allowed
05.07.2000 RRP 35/1996 dismissed
03.09.2001 HRRP 394/2000 dismissed
03.10.2002 Date of Filing of Execution Petition No.98/2002
29.05.2008 Date of filing suit in O.S.No.118/2012 ( old No. 209/2008) for want of pecuniary jurisdiction plaint-returned
27.11.2007 Order dismissing the application filed under Order 21 Rule 97 CPC filed by plaintiff’s brother
02.01.2009 Order of dismissal passed in RA No.11/2008
23.07.2010 Judgment in RSA 795/2009 dismissing the appeal
24.02.2012 Order dismissing the application filed under Order 21 Rule 97 CPC by plaintiff
11.10.2012 Order dismissing RA 30/2012 affirming the order of Executing Court
03.7.2013 Judgment in RSA 2051/2012
Appellants father claims to have purchased property under two sale deeds dated 3.7.2000 and 10.07.2000
11. This Court while disposing of the second appeal
filed by the present plaintiff in RSA No.2051/2012 has made
an observation to the following effect:
“9. However, the contention
regarding the measurement of property
belonging to Vasanthamal Datatri as in
revenue records is erroneous is open for
him to challenge in the original suit
initiated by him and pending for
consideration. It is open for appellant to
13
establish his title to the property purchased
by his father from Dhirubai as the property
belonging to him, in the said proceedings.”
It is this liberty which according to plaintiff which has been
given, would entitle him to prosecute pending suit namely,
O.S.No.118/2012 (old No.209/2008) and as such, trial Court
could not have opined that suit itself was not maintainable.
12. Facts narrated herein above relating to
proceedings and their culmination by different orders are
undisputed factual aspects.
RE: POINT NO.1:
13. It is the plaintiff who is attempting to scuttle the
decree which has been passed by competent jurisdictional
Court from being executed namely, decree that has been
passed in HRC No.6/1992 on 06.01.1996 contending
interalia that description of the property in the execution
proceedings is different from the one which the plaintiff owns
and decree holder should not be permitted to execute the
said decree and obtain possession of property belonging to
plaintiff. Undisputedly, in the said HRC proceedings tenant
had appeared before this Court and had sought for time and
14
after considering contentions raised by the respective
learned Advocates, this Court held that “A Broad consenses
has been arrived at as to how much time the petitioner
should be given for vacating the premises.”
14. At this juncture, it would be appropriate to
notice the claim made by the present plaintiff. Present
plaintiff claims to have purchased suit schedule property
and other remaining half (½) portion of property is said to
have been purchased by his father under registered sale
deeds dated 03.07.2000 and 10.07.2000 respectively from
legal heirs of Khimji Ramji Jolapara whose father was
respondent / judgment debtor in HRC No.6/1992 /
Execution Petition No.98/2002. It was further claimed that
under a partition effected between the family members, suit
schedule property came to be allotted in favour of plaintiff
and as such he is in possession and enjoyment of the same.
Hence, it is contended that plaintiff having an independent
title to suit schedule property, dismissal of an application
filed by him under Order 21 Rule 97 and dismissal of said
application would be of no consequence. Said contention
cannot be accepted for reasons more than one. Firstly,
plaintiff’s father had purchased said properties under these
15
two sale deeds. Nothing contained in Rules 98 and 100 of
Order 21 CPC would apply to resistance by way of
obstruction in execution of a decree for the possession of
immovable property by a person to whom judgment debtor
has transferred the property after institution of the suit in
which decree was passed or to the dispossession of any such
person vide Rule 102 of Order 21 CPC. In other words, any
transfer which takes place during the pendency of
proceedings would be hit by the principles of ‘transferee
pendente lite’. In the instant case eviction proceedings was
initiated on 1992 and eviction petition came to be allowed on
06.01.1996 and both the revision petitions filed by
respondent therein came to be dismissed on 05.03.2000 and
03.09.2001 respectively. Since respondent therein did not
vacate the schedule premises an execution petition in
E.P.No.98/2002 was filed. Plaintiff claims to have purchased
suit schedule property under a sale deed dated 3.3.2000 i.e.,
after RRP No.35/1996 came to be dismissed on 5.7.2000.
On this short question itself, application filed under Order
21 Rule 97 CPC should have been dismissed.
15. Be that as it may. Executing Court had
embarked upon conducting an enquiry by affording
16
opportunity to respective parties to tender evidence
exhaustively. Trial was conducted. Oral and documentary
evidence was tendered by the parties. After adjudication of
the application filed by plaintiff order came to be dismissed,
dismissing the application. This order has partaken the
character of a decree and as such, obstructor namely,
plaintiff herein after dismissal of the application filed by him
under Order 21 Rule 97 CPC on 24.02.2012 filed an appeal
in R.A.No.30/2012 which also came to be dismissed on
11.10.2012. Being aggrieved by said order, Regular Second
Appeal No.2051/2012 was filed and said appeal also came to
be dismissed on 03.07.2013. It would be appropriate to note
the observations made by the co-ordinate Bench of this
Court while disposing of RSA No.2051/2012, whereunder it
has been recorded as under:
“6. In the said proceedings, he has tried
to rely upon several documents to
demonstrate that the said properties are
separate and distinct. Further he has tried
to produce the Sale Deeds under which the
appellant’s father has purchased the
property, which has now come to his share.
However, such contention may not be
relevant at this juncture for the reason
that the vendor of appellant’s father,
17
namely Dhirubai never objected to the
measurement stated in the eviction
proceedings initiated by Smt.
Vasanthamala Datatri. Therefore, now it
is not open for the appellant herein to
say that there is an error on the part of
the landlady, Vasanthamala Datatri to
claim the extent of land that does not
belong to her and to include the property of
tenant while executing the decree for
eviction.
(Emphasis supplied)
This Court has categorically held that it is not open for the
appellant (plaintiff herein) to say that there is error on the
part of respondent No.1 herein to claim that extent of land
that does not belong to her (land lady in HRC proceedings
who is first defendant herein) has been included as property
of her tenant while executing the decree for eviction on the
ground that appellant’s (plaintiff’s) father’s vendor Sri
Dhirubhai Jolapar never objected to the measurements
taken in the eviction proceedings. As such, plaintiff cannot
be heard to contend that there is overlapping of the
measurements shown in the description in the schedule to
18
the Execution Petition to that of present suit schedule
property.
16. Though Mr Kalyan Basavaraj, learned Advocate
appearing for appellant – plaintiff would vehemently contend
that in view of plaint schedule property being separate,
distinct and independent property from that of property
described in the schedule to execution petition and also
contends that it was this precise ground which came to be
urged before this Court in RSA No.2051/2012 and
considering same liberty came to be granted to plaintiff to
pursue his grievance in the pending suit namely, present
suit of the plaintiff which was for comprehensive relief
namely, declaration and injunction and plaintiff having been
able to demonstrate that he had acquired title to the suit
schedule property under a partition, trial Court could not
have held that suit itself was not maintainable. He would
rely upon Rule 104 of Order 21 CPC to buttress his
argument regarding maintainability of the suit.
17. In that view of the matter, it is appropriate to
extract said provision for the purpose of considering his
contention. Rule 104 of Order 21 CPC reads as under:
19
“104. Order under rule 101 or rule
103 to be subject to the result of pending
suit.- Every order made under rule 101 or
rule 103 shall be subject to the result of any
suit that may be pending on the date of
commencement of the proceeding in which
such order is made, if in such suit the party
against whom the order under rule 101 or
rule 103 is made has sought to establish a
right which he claims to the present
possession of the property.”
Rule 104 to Rule 106 of Order 21 CPC was inserted by 1976
Amendment. Prior to amendment, Rule 103 empowered the
aggrieved party to file a suit irrespective of the finding
recorded in the proceeding adjudicating the application filed
under Order 21 Rule 97 to 100 CPC. This right has been
taken away by the 1976 amendment and what has been
provided under Rule 104 is that if on the date of
commencement of proceedings in which order is made, a suit
has already been filed it would not preclude such party to
prosecute the said suit despite dismissal of an application
filed by him under Order 21 Rule 97, 98 or 100 CPC.
18. In fact, Hon’ble Apex Court in the case of
NOORDUDDIN vs. Dr.K.L.ANAND reported in 1995(1) SCC
20
242 = 1994 AIR SCW 5093 has held that determination of
rights under Order 21 Rule 97 CPC would be conclusive
between the parties and the order passed thereon would be
deemed to be decreed subject to right of appeal and would
not be a matter to be adjudicated by a separate suit. It has
been held by the Hon’ble Apex Court to the following effect:
“8. Thus, the scheme of the Code
clearly adumbrates that when an
application has been made under Order 21,
Rule 97, the Court is enjoined to adjudicate
upon the right, title and interest claimed in
the property arising between the parties to a
proceeding or between the decree holder
and the person claiming independent right,
title or interest in the immovable property
and an order in that behalf be made. The
determination shall be conclusive between
the parties as if it was a decree subject to
right of appeal and not a matter to be
agitated by a separate suit. In other words,
no other proceedings were allowed to be
taken. It has to be remembered that
preceding Civil Procedure Code Amendment
Act, 1976, right of suit under Order 21,
Rule 103 of 1908 Code was available which
has been now taken away. By necessary
implication, the legislature relegated the
21
parties to an adjudication right, title or
interest in the immovable property under
execution and finality has been accorded to
it. Thus, the scheme of the Code appears to
be to put an end to the protraction of the
execution and to shorten the litigation
between the parties or persons claiming
right, title and interest in the immovable
property in execution.”
19. At the cost of repetition, it requires to be noticed
that if the suit by the obstructor had been filed even prior to
the commencement of execution proceedings, it does not bar
obstructor from prosecuting said suit, even in the event of
application filed by him under Order 21 Rule 97 CPC in
execution proceedings is dismissed. This is the tenor of Rule
104 of Order 21 CPC. Any other meaning if sought to be
given would frustrate the very intent and purpose of Rule
104 or it would be otiose. In the instant case, admittedly,
execution proceedings was commenced in the year 2002 i.e.,
in execution petition No.98/2002 by the first defendant and
plaintiff herein had presented the plaint by filing a suit for
perpetual injunction in O.S.No. 209/2008 on 29.05.2008
which came to be re-numbered as O.S.No. 118/2012. In
other words, present suit came to be filed after a period of
22
six years from the date of commencement of execution
proceedings. Hence, plaintiff cannot be heard to contend
that despite dismissal of his application filed under Order 21
Rule 97 CPC, present suit would still maintainable. It is
because of this precise reason, trial Court has held that
present suit would not be maintainable vide paragraph 15 of
the order under appeal. Said finding does not suffer from
any infirmity calling for interference at the hands of this
Court.
20. As rightly contended by Sri Manmohan, learned
Advocate appearing for respondent-1 that a decree obtained
by first defendant from a competent Court which has been
confirmed by first revisional Court and also by this Court
has not got fructified itself on account of persistent and
consistent blocks put forwarded by present plaintiff and his
brother which can be said by way of joint venture. This I say
so because at the first instance, present plaintiff had filed a
suit in O.S.NO.209/2008 on 29.05.2008 and was
prosecuting the said suit. No material is placed before this
Court to establish that plaintiff had any benefit of temporary
injunction in the said suit. Be that as it may.
23
When the execution petition was filed by first defendant to
execute the decree passed in HRC case by filing in execution
No.98/2002 brother of plaintiff filed an application for
obstruction which came to be dismissed on 27.11.2007
confirmed by the lower appellate Court on 02.01.2009 and
confirmed by a co-ordinate Bench of this Court in RSA on
23.07.2010. Co-ordinate Bench of this Court while
dismissing the said appeal has made following observation:
“The objector has made this
application only to willfully defeat the
judgment and decree in favour of the
respondent. The HRC proceedings were filed
in the year 1992. Even after almost 20 years
the litigation still continues. There is no
legal right of the appellant that has been
infringed which requires adjudication. It is a
ploy to defeat a lawfully obtained decree”.
21. Present plaintiff’s brother did not pursue his
grievance further. Plaintiff in the instant case not only claims
to have purchased a portion of suit schedule property in the
year 2000 but also claims that in a family partition suit
schedule property was allotted to his share (details not
furnished) in the plaint. He was waiting in the wings to jump
into fray only after application filed by his brother came to be
24
dismissed. He cannot pleaded ignorance for the simple
reason, he had already filed a suit in the year 2008 i.e., in
O.S.No.209/2008 on the file of Principle Civil Judge &
JMFC, Chikmagalur and as such he was fully aware of the
judgment and decree passed in HRC proceedings which had
been confirmed by two revisional Courts. Only, in the year
2012, he filed an application under Order 21 Rule 97 CPC
which came to be dismissed on 24.02.2012 and confirmed
by lower appellate Court on 11.10.2012 and affirmed by co-
ordinate Bench of this Court on 03.07.2013. This would
only indicate the conduct and modus operandi adopted by
the plaintiff and his brother to scuttle the decree passed by
the competent Court which cannot be countenanced by this
Court and as such, plaintiff deserves to be saddled with
exemplary costs. It also requires to be noticed by this Court
at the cost of repetition that plaintiff is claiming title to suit
schedule property under a partition deed and also contends
that suit property was purchased by his father along with
other adjacent and abutting property under two registered
sale deeds dated 03.07.2000 and 10.07.2000 from
Mr.Jolapura which was during the pendency of the
proceedings before this Court i.e., during the pendency of
25
litigation. As such, Rule 102 of Order 21 CPC would be
attracted to the facts of the present case and claim of
plaintiff would stem through judgment debtor and though it
is contended that they have an independent title by virtue of
partition deed, ultimately when tracing of title relating to suit
schedule property is carried out, it relates back to judgment
debtor himself or in other words, plaintiff is claiming his
right to suit schedule property under judgment debtor. For
this reason also this Court is of the considered view that
order passed by trial Court holding that there is no
primafacie case in favour of plaintiff and suit itself may not
be maintainable requires to be affirmed. Hence, point No.1
is answered in the affirmative namely, holding that order
passed by trial Court does not suffer from any infirmity and
trial Court has not committed any irregularity or illegality in
passing the order under challenge and dismissing the
application for temporary injunction.
RE: POINT NO.2.
22. For the reasons aforestated, I proceed to pass
the following:
JUDGMENT
(1) Appeal is hereby dismissed with costs.
26
(2) Order passed on I.A.No.III by Addl.Sr.Civil
Judge & JMFC, Chikmagalur dated
15.06.2013 in O.S.No.118/2012 is hereby
confirmed.
(3) Appellant – plaintiff to pay costs of
Rs.10,000/- to respondents-1 to 3.
Sd/- JUDGE
*sp