Smt.Bharathi vs Sri.J.C.Narayanappa
2021 Latest Caselaw 415 Kant

                          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

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.

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

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