1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 7TH DAY OF JANUARY, 2021
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NO.9463 OF 2020 (GM-CPC)
BETWEEN:
SMT.BHARATHI
W/O NAGARAJU,
AGED 35 YEARS,
R/AT VARANASI
@ JINKATHIMMANAHALLI VILLAGE,
BIDARAHALLI HOBLI,
BANGALORE EAST TALUK
PIN CODE-560 049.
...PETITIONER
(BY SRI. PUNITH CHANNAIAH, ADVOCATE FOR
SRI. P M SIDDAMALLAPPA, ADVOCATE)
AND:
1. SRI.J.C.NARAYANAPPA,
S/O CHIKKARAMAIAH,
AGED ABOUT 67 YEARS,
R/AT VARANASI @
JINKATHIMMANAHALLI VILLAGE,
BIDARAHALLI HOBLI,
BANGALORE EAST TALUK,
PIN CODE-560 049.
2. SMT.MANJULA,
W/O MUNIRAJU,
D/O J.C.NARAYANAPPA,
AGED ABOUT 41 YEARS,
R/AT VARANASI
@ JINKATHIMMANAHALLI VILLAGE,
BIDARAHALLI HOBLI,
BANGALORE EAST TALUK,
PIN CODE-560 049.
2
3. SRI.SHIVAKUMAR @ KUMARA,
S/O J.C.NARAYANAPPA,
AGED ABOUT 39 YEARS,
R/AT VARANASI @
JINKATHIMMANAHALLI VILLAGE,
BIDARAHALLI HOBLI,
BANGALORE EAST TALUK,
PIN CODE-560 049.
4. SRI.CHANDRA,
S/O J.C.NARAYANAPPA,
AGED ABOUT 38 YEARS,
R/AT VARANASI @
JINKATHIMMANAHALLI VILLAGE,
BIDARAHALLI HOBLI,
BANGALORE EAST TALUK,
PIN CODE-560 049.
5. SRI.K.RAJASHEKAR,
S/O LATE J.C.KRISHNAPPA,
AGED ABOUT 46 YEARS,
R/AT 365, UCO BANK ROAD,
RAMAMURTHY NAGAR,
BANGALORE-560 016.
... RESPONDENTS
(BY SRI. S J KUMAR, ADVOCATE FOR R1;
R2 TO R5 ARE SERVED & UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
IMPUGNED ORDER DATED 12.08.2020, PASSED ON I.A.NOVI
FILED BY THE R-1 IN R.A.NO.48/2018 AS PER ANNEXURE-G
BY THE LEARNED 8TH ADDITIONAL DISTRICT AND SESSIONS
JUDGE, BANGALORE RURAL DISTRICT, BANGALORE, AS PER
ANNEXURE-G AND THEREBY ORDER TO DISMISS IA.NO.6
FILED U/S 151 OF CIVIL PROCEDURE CODE BY THE R-1 BY
ALLOWING THE WRIT PETITION WITH EXEMPLARY COST.
THIS PETITION COMING ON FOR ORDERS THIS DAY
THROUGH PHYSICAL HEARING, THE COURT MADE THE
FOLLOWING:-
ORDER
Petitioner was the plaintiff in a suit for partition in O.S.No.595/2004, which resulted in a judgment & decree dated 15.11.2010; appeal of the respondent Nos. 2 to 5 in 3 R.A.No.337/2020 having been favoured on 13.07.2011, the partition decree came to be reversed; that was put in challenge in appeal by the petitioner in RSA No.1715/2011 and a Co-ordinate Bench of this Court vide order dated 11.09.2013 allowed the appeal and restored the judgment & decree of the learned trial judge; the preliminary decree was put in FDP No.5/2014 in respect of item Nos. 2 to 5, Item No.1 property having been in litigation in another cognate suit in O.S.No.641/1992 which is stated to be still pending after remand by this Court.
2. Pursuant to closure of FDP, final decree came to be registered u/s 17 of the Registration Act and accordingly the mutation of entries in the Property Records were also effected; however the respondents herein preferred an appeal in R.A.No.48/2018 challenging the closure of FDP wherein they had also moved an application under Section 151 of CPC, 1908 for restraining the petitioner from approaching the Revenue Authorities for mutation of entries and for conducting survey. The said application having been favoured by the learned judge of the Court below vide order dated 12.08.2020, petitioner - Decree Holder is knocking at the doors of Writ Court. 4
3. After service of notice, the respondents having entered appearance through their counsel, resist the writ petition making submission in justification of the impugned order and the reasons on which it has been constructed.
4. Having heard the learned counsel for the parties and having perused the petition papers, this Court is inclined to grant a limited indulgence in the matter as under and for the following reasons:
a) As already mentioned above, petitioner's partition suit having been decreed, respondents' RA against the same having been favoured, the said decree was reversed; the said reversal having been set aside by this Court in petitioner's second appeal, the judgment & decree of the learned trial judge came to be restored; the decree having been put in FDP, the final decree came to be drawn and registered, as well in respect of properties at Item Nos. 2 to 5 since Item No.1 property has been the subject mater of a pending suit; and,
b) the assertion of the petitioner that after the drawing of the decree whereby the FDP came to be closed, the final decree has been registered and even entries in the 5 Property Records have been mutated in respect of the subject properties, has not been duly addressed by the Court below; the contention that the respondent Nos. 2 to 5 have laid a challenge to the closure of the FDP in RA No.48/2018 is not a ground for restraining the Revenue Authorities from acting upon the registered decree in terms of Proviso to Section 133 of the Karnataka Land Revenue Act, 1964 of course, subject to outcome of the said appeal; for the same reason there is no need for appointment of surveyor right now, which exercise can be undertaken after and subject to outcome of the said appeal.
In the above circumstances, justice of the case warrants that this Writ Petition be allowed and accordingly it is; the impugned order is set at naught with the observations hereinabove made, keeping open all the contentions of parties.
All contentions in that regard are kept speculatively open.
No costs.
Sd/-
JUDGE Bsv