Karnataka High Court

Bhuvaneshwari vs Leela on 9 February, 2024

Author: S.R.Krishna Kumar

Bench: S.R.Krishna Kumar

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                                                         WP No. 683 of 2024




                 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                      DATED THIS THE 9TH DAY OF FEBRUARY, 2024

                                        BEFORE
                    THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
                        WRIT PETITION NO. 683 OF 2024 (GM-CPC)
            BETWEEN:
            BHUVANESHWARI
            W/O LATE RUDRACHAR
            AGED ABOUT 62 YEARS
            R/AT NO.94, RANGANATHA COLONY,
            OPPOSITE TO GOWRISHANKARA RICE MILL
            TALAGUPPA HOBLI-577430,
            SAGARA TALUK,
            SHIVAMOGGA DISTRICT.
                                                                 ...PETITIONER
            (BY SRI. S V PRAKASH.,ADVOCATE)
            AND:

            1.     LEELA W/O LATE MANJUNATH
                   AGED ABOUT 59 YEARS

            2.     M. VEENA D/O LATE MANJUNATH
                   AGED ABOUT 40 YEARS

            3.     M. VANI D/O LATE MANJUNATH
Digitally          AGED ABOUT 38 YEARS
signed by
VANDANA S
            4.     M. VIDYA D/O LATE MANJUNATH
Location:
HIGH               AGED ABOUT 36 YEARS
COURT OF
KARNATAKA   5.     VINAYRAO M. S/O LATE MANJUNATH
                   AGED ABOUT 30 YEARS

                   RESPONDENTS ARE
                   R/O BELLARY RAILWAY STATION
                   BIRURU TOWN-577116,
                   KADUR TALUK,
                   CHICKAMAGALURU DISTRICT.
                                                              ...RESPONDENTS
            (BY SRI. VARUN.J. PATIL.,ADVOCATE)
                   THIS W.P IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF
            INDIA PRAYING TO SET ASIDE THE ORDER DATED 08/12/2023 PASSED BY THE
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                                                  NC: 2024:KHC:5766
                                                WP No. 683 of 2024




COURT OF LEARNED PRINCIPAL CIVIL JUDGE AND JMFC, SAGARA ON I.A. NO.
XI IN OS NO. 133/2017 PRODUCED AS PER ANNEXURE-F TO THE WP AND ETC.

      THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE
THE FOLLOWING:


                               ORDER

This petition by the petitioner - defendant is directed

against the impugned order dated 08.12.2023 passed on

I.A.No.11 in O.S.No.133/2027 by the Prl.Civil Judge and

JMFC, Sagar, whereby the said application filed by the

petitioner under Section 10 CPC seeking stay of further

proceedings in the suit pending disposal of the Revision

Petition No.92/2023 filed by the petitioner pending before the

Karnataka Appellate Tribunal, Bangalore (for short 'the KAT')

was dismissed by the trial court.

2. Heard learned counsel for the parties and perused

the material on record.

3. The material on record discloses that the

respondents - plaintiffs instituted the aforesaid suit against the

petitioner - defendant for declaration, possession and other

reliefs in relation to the suit schedule immovable properties.

During the pendency of the suit, the petitioner - defendant

NC: 2024:KHC:5766

filed the instant application seeking stay of further proceedings

in the suit on the ground that the proceedings in relation to the

subject matter of the suit were pending before the KAT in

Revision Petition No.92/2023 filed by the petitioner. The said

application having been opposed by the respondents, the trial

court proceeded to pass the impugned order rejecting the

application on the ground that Section 10 CPC was not

applicable to the revision proceedings pending before the

KAT. The trial court also came to the conclusion that in the

event, the petitioner was aggrieved by any order to be passed

in the suit by the trial court, the same would be subject to

appeal / revision and any order passed by the KAT would also

subject to filing of an appeal / revision and it was open for the

parties to agitate their rights before the KAT as well as before

the trial court, independent of each other. The trial court came

to the said conclusion by holding as under:-

" 6. Point No.1 : The plaintiffs have filed this suit for relief of declaration of their title and for possession from the defendant. The suit schedule property was allotted to the husband of plaintiff NO.1 by a Hakku - Patra dated 14.08.2001, accordingly, his name was entered in the Panchayat records, and the plaintiffs have been regularly paying taxes to the government. After filing the suit, the

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defendant filed an application before the Tahsildar, Sagar, for cancellation of the grant, which came to be dismissed. Against the order of the Tahsildar, she preferred an appeal before the Assistant Commissioner, Sagar, challenging the order of the Tahsildar, Sagar, but the Assistant Commissioner, Sagar, dismissed the appeal, against which she preferred a revision petition before the Deputy Commissioner, which also came to be dismissed. After apse of 11 months from the date of passing of an order by the deputy commissioner she filed a revision petition before the Karnataka Appellate Tribunal, and after a lapse of one and a half months when the case was posted for defendants side arguments, she filed a revision petition before the Karnataka Appellate Tribunal, therefore, the conduct of the defendant clearly go to show that, she intended to cause delay in disposal of the case and also cause harassment to the plaintiff to enjoy the property of her husband.

The Assistant Commissioner and the District Collector, in their order, held that already 17 years and elapsed from the date of issue of the Hakku - Patra, and the defendant kept quiet for all these years without raising any objection to the validity of the Hakku Patra issued in favor of her brother. In such circumstances, the Hakku Patra issued in favor of the husband of plaintiff No. 1 cannot be canceled.

Plaintiff's husband No. 1 had constructed a multi- story building on the suit property and allowed the defendant to stay in the house by taking care of her mother. The possession of the defendant was merely permissive, with the condition that she would leave the suit property after canceling the license. The defendant is residing in the suit

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schedule property on the basis of permissive possession; she has no persona right over the suit schedule property to claim any rights. Further, the government has allotted the plot to the defendant. Further, the competent authority to cancel the Hakku - Patra is Tahsildar Sagar, but he has refused to cancel it. In such circumstances, there are no presumptive circumstances for the Court to entertain a doubt about the title of the plaintiffs. Further, if the court passes the judgment subject to the outcome of the revision petition before the Karnataka Appellant Tribunal then the defendant will not suffer any hardship, and there is no provision to stay further proceedings in this case till the disposal of the revision petition, as the defendant has preferred the revision petition during the pendency of this suit. The provision under Sec. 10 C.P.C. applies to subsequent suit only. In order to stay a subsequent suit, there must be a previous suit pending before the court in respect of the same subject matter, and then only the court can exercise its power to stay further proceedings of the later suit until the disposal of the earlier suit. In this case, there was no suit pending before the plaintiff and the defendant in respect of the suit schedule property. No stay order from the Appellate Court under Order 41, Rule 5 of the C.P.C . In such circumstances, the court cannot stay the further proceedings of this case. If the Karnataka Appellate Tribunal quashes the grant certificate made in favor of the husband of plaintiff NO.1, then the defendant has every opportunity to challenge the decree before the Appellate Court. Therefore, the defendant has not given valid reasons to stay the further proceedings in the case.. Accordingly, I answer the point No.1 in the negative.