Karnataka High Court
Rajesh Enterprises vs Smt. Jakkavva W/O Basavanneppa Kampli on 27 September, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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WP No. 100722 of 2024
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 27TH DAY OF SEPTEMBER, 2024
R
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
WRIT PETITION NO. 100722 OF 2024 (GM-CPC)
BETWEEN:
RAJESH ENTERPRISES,
R/BY ITS PARTNER
NARESH GODAR SHAH,
AGE: 66 YEARS, OCC: BUSINESS,
R/O: NO.12, CHANAKYA PURI COLONY,
KARWAR ROAD, HUBBALLI-580029.
...PETITIONER
(BY SRI. KIRAN V. RON, ALONG WITH
SRI. V.H. RON, ADVOCATES)
AND:
1. SMT. JAKKAVVA W/O. BASAVANNEPPA KAMPLI,
AGE: 64 YEARS, OCC: HOUSE HOLD WORK,
R/O: SANGATI KOPA, TQ: KALAGHATAGI,
DIST: DHARWAD- 581204.
SAROJA 2. SMT. SAVAKKA W/O. CHENNABASAPPA SULLAD,
HANGARAKI
AGE: 61 YEARS, OCC: HOUSE HOLD WORK,
Location: HIGH R/O: KESHWAPUR, TQ: HUBBALLI,
COURT OF
KARANTAKA
DHARWAD
DIST: DHARWAD-580023.
BENCH
3. SHRI. MALLAPPA S/O. MARITAMMAPPA AMARSHETTY,
AGE: 79 YEARS, OCC: AGRICULTURE,
R/O: AMMINABHAVI, TQ: & DIST: DHARWAD-580201.
4. SMT. CHENNAVVA W/O. MALLAPPA AMARSHETTY,
AGE: 58 YEARS, OCC: AGRICULTURE,
R/O: AMMINABHAVI, TQ: &DIST: DHARWAD-580201.
5. SHRI. MAHESH @ MARITAMMAPPA AMARSHETTY,
AGE: 36 YEARS, OCC: AGRICULTURE,
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R/O: AMMINABHAVI,
TQ: & DIST: DHARWAD-580201.
6. SHRI. TAMMANNA S/O. MALLAPPA AMARSHETTY,
AGE: 33 YEARS, OCC: AGRICULTURE,
R/O: AMMINABHAVI, TQ: & DIST: DHARWAD-580201.
7. SMT. DYAMAVVA W/O. BASAVANEPPA SATYAPPANAVAR,
AGE: 65 YEARS, OCC: AGRICULTURE,
R/O: PUDAKALAKATTI, TQ: & DIST: DHARWAD-581206.
8. SMT. NEELAVVA W/O. BASAPPA BENNI,
AGE: 64 YEARS, OCC: HOUSE HOLD WORK,
R/O: SANGATI KOPA, TQ: KALAGHATAGI,
DIST: DHARWAD- 581204.
9. SMT. LATA W/O. HOLEYAPPA BULLA,
AGE: 63 YEARS, OCC: HOUSE HOLD WORK,
R/O: LAMINGTON ROAD, HUBBALLI,
DIST: DHARWAD- 580020.
10. SHRI. ISHWARAPPA S/O. HOLEYAPPA BULLA,
AGE: 42 YEARS, OCC: BUSINESS,
R/O: LAMINGTON ROAD, HUBBALLI,
DIST: DHARWAD- 580020.
11. MISS. SANGAMMA D/O. HOLEYAPPA BULLA,
AGE: 30 YEARS, OCC: STUDENT,
R/O: LAMINGTON ROAD, HUBBALLI,
DIST: DHARWAD- 580020.
12. MISS. PRIYANKA D/O. HOLEYAPPA BULLA,
AGE: 27 YEARS, OCC: STUDENT,
R/O: LAMINGTON ROAD, HUBBALLI,
DIST: DHARWAD- 580020.
13. SHRI. ANIL S/O. NARAYAN GHORPADE,
AGE: 40 YEARS, OCC: BUSINESS,
R/O: VIKAS NAGAR, GOKUL ROAD,
HUBBALLI, DIST: DHARWAD- 580021.
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14. SHRI. SANJAY S/O. NARAYAN GHORPADE,
AGE: 33 YEARS, OCC: BUSINESS,
R/O: VIKAS NAGAR, GOKUL ROAD,
HUBBALLI, DIST: DHARWAD- 580021.
15. SHRI. BALAJI & COMPANY,
R/BY ITS PARTNER,
SHRI. T. SELVARAJ S/O. N. THANGAMUTHU,
AGE: 63 YEARS, OCC: BUSINESS,
R/O: PINTO ROAD, HUBBALLI,
DIST: DHARWAD- 580020.
16. SHRI. SANDEEP
S/O. K. KRISHNALAL GAMBHIR,
AGE: 41 YEARS, OCC: BUSINESS,
R/O: LAMINGTON ROAD, HUBBALLI,
DIST: DHARWAD- 580020.
RESPONDENTS
(BY SRI. ABHISHEK KALLED, ADV. FOR R1-R6;
SRI. MALLIKARJUNSWAMY B. HIREMATH, ADV. FOR R7 & R8;
SRI. PRAVEEN G. KULKARNI, ADV. FOR R16;
R9-R15 NOTICE DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN
NATURE OF CERTIORARI, QUASHING THE IMPUGNED ORDER DATED
03.02.2024 BY PASSED IN EP NO.228/2023 BY THE PRL. SR. CIVIL
JUDGE AND JMFC HUBBALLI AT HUBBALLI DISMISSING THE
APPLICATION FILED BY THE PETITIONER AS 3RD PARTY OBSTRUCTOR
IN IA NO.1 UNDER ORDER XXI RR.97,98 AND 101 OF CPC, VIDE
ANNEXURE-A AND ETC.
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 18.09.2024, COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
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CAV ORDER
(PER: HON'BLE MR. JUSTICE H.P. SANDESH)
1. The prayer sought in this writ petition is to
issue a writ in the nature of certiorari quashing the
impugned order dated 03.02.2024 passed in
E.P.No.228/2023 by the Principal Senior Civil Judge and
JMFC, Hubballi dismissing the application filed by the
petitioner under Order XXI Rules 97, 98 and 101 of CPC
vide Annexure-A and issue other writ, order or direction as
may be deemed proper.
2. The main contention of the petitioner in the
present petition is that the order impugned vide Annexure-
A is erroneous. Respondents No.1 and 2 instituted suit
proceedings in O.S.No.2/2009 for partition and separate
possession of their alleged share. It is also his contention
that petitioner's name reflects in the city survey records
pertaining to CTS No.504/A1 situated at Lamington Road,
Hubballi and he was not made as party in the suit
proceedings. Counsel for the petitioner also relies upon the
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copy of the plaint and copy of CTS record as produced as
Annexures-B and C. It is the contention of the petitioner
that he is the holder of perpetual leasehold rights to an
extent of 2870 sq.ft. comprised in the said CTS No.504/A1
and he acquired his rights under registered instruments of
lease and sale dated 21.05.1982 and 28.05.1982 and copy
of registered sale deed and lease deed are marked as
Annexures-D and D1. It is also his contention that original
perpetual lease came into existence vide registered
instrument dated 07.11.1894 in respect of R.S.No.85 of
Keshwapur Village in Hubballi executed by the
predecessors of respondents No.1 and 2 in favour of the
Indian Cotton Company Limited, Bombay. The said lease
deed is also marked as Annexure-E. It is contended that
marked portion covered by the R.S.No.85 which was
subject matter of lease deed dated 07.11.1994 was 5
acres 39 guntas and 3 annas. It is contended that the
original lease holder Indian Cotton Company Limited went
in liquidation in the year 1941. On 19.04.1941 an
indenture came to be executed by the official liquidator
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assigning all the perpetual leasehold rights contained in
lease deed dated 07.11.1994 to one Siddhalingappa
Ishwarappa Bulla. As a matter of fact, the terms of
perpetual lease provided for further sub-lease or
development or creation of third-party interests in the
same and also a right in the lessee to continue the lease
perpetually or to surrender the leasehold rights. Copy of
the said indenture is marked as Annexure-F.
3. It is contended that things having stood thus, a
portion of CTS No. 504/A1 came to be acquired and land
acquisition proceedings were initiated. The predecessor of
respondents No. 1 and 2 agitated before the Extra
Assistant Judge, Dharwad in Misc. Application No.60/1944
challenging the rights of Siddhalingappa Bulla to receive
compensation. The Extra Assistant Judge, Dharwad ruled
that the predecessor of the respondents was entitled to
nothing more than the Rs.550/- of annual ground rent and
the compensation for loss of any land or part thereof
comprised in CTS No.504/A1 rightfully belonged to
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Siddhalingappa Bulla. This ruling of Extra Assistant,
Dharwad was called in question before this Hon'ble Court
in F.A. No.346/1945. This Hon'ble Court while dismissing
the appeal preferred by Maritammanna Amarshetti
confirmed the order passed by the lower Court and held
that the lease hold rights were not only permanent in
nature, but were also transferable and heritable. Copies of
the order are marked as Annexures-G and G1.
4. It is the contention of the petitioner that an
area measuring 2870 sq.ft. from out of CTS No.504/A1
situated on its western side carrying Municipal number in
HDMC No.42/1 was acquired by one Ramakrishna Bhat on
lease from the said Siddhalingappa Bulla on a ground rent
of Rs.250/- per month with liberty to raise construction.
He constructed a restaurant under the name and style of
Meenakshi Bhavan in the year of 1977. His leasehold
rights and the title of the structure came to be acquired by
the petitioner under the registered deed of sale dated
21.05.1982 for a consideration of Rs.70,000/-. This was
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followed by the deed of ratification dated 28.05.1982
executed by Siddhalingappa Bulla in favour of the
petitioner. A right of renewal was reserved with the lessee
after expiry of the lease period. Thus, after the expiry of
initial 25 years of lease there has been renewal of the
lease for a period of next 10 years. The last such renewal
was through registered instrument dated 03.06.2017 for a
period of 10 years again subject to the right of renewal
exercisable at the option of the lessee. Copy of the last
instrument referred above is marked as Annexure-H.
5. It is contended that the descendants of
Maritammanna Amarshetty instituted a suit for partition
inter-se. They also impleaded the legal heirs of
Siddhalingappa Bulla and some of the interested
individuals however, cleverly avoided the participation of
the petitioner in the suit proceedings despite the name of
the petitioner appearing in the record of rights. Copy of
the judgment in O.S.No.2/2009 is marked ANNEXURE-J.
The suit ended in a decree challenged in RFA
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No.100301/2019 coupled with RFA No.100248/2020 had
been confirmed. The copy of judgment is marked as
Annexure-K and the same was also challenged by Bulla
and others in SLP and the same was also dismissed.
6. It is contended that nevertheless, the issue
related to the nature of the lease which is set at naught in
F.A.No.346/1945 which has attained finality between the
parties was sought to be reagitated. Thus, the judgment
rendered between parties having attained finality could not
have been subjected to afresh interpretation in an indirect
manner that too without impleading the petitioner who
owns the structure in the above land. The rights of the
petitioner in relation to the structure consisting 4 storied
building was imperative. It is contended that in order to
prevent the petitioner by the respondent from
participating in the suit proceedings and also in respect of
rights of the petition, no sooner they realized about the
pendency of the execution proceeding they made the
application in I.A.No.1 to establish their independent rights
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which were sought to be suppressed. Copy of the
application is marked as Annexure-L and statement of
objections filed by respondents is also marked as
Annexure-L1 and copy of execution petition as Annexure-
L2.
7. It is also the contention of petitioner's counsel
that the Executing Court in a mechanical manner without
even holding an enquiry, rejected the application filed by
the petitioner. The order of the rejection without an
enquiry does not amount to a decree and hence, the
present writ petition is filed.
8. It is also contended that the avoidance by the
respondents of the petitioner in the suit proceedings
despite it having acquired permanent interest in building
constructed by it will render the decree obtained by the
respondent not binding on the petitioner. Having read the
order of the Trial Court, is erroneous and failed to apply its
judicious mind and failed to take note of the pre-existing
rights of the petitioner in the form of lease, ownership etc.
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and it ought to have been decided by the Executing Court
by holding an enquiry.
9. It is also contended that after the dismissal of
the application, the Executing Court has overstepped its
jurisdiction in ordering breaking open of the petitioner's
property and to provide police aid for the same and the
petitioner is not a party to the proceedings and Trial Court
committed an error in rejecting the same.
10. Counsel in support of his argument also, relied
upon the judgment reported in AIR 2020 SC 1884 in the
case of Nand Ram (D) through LRs and Others vs.
Jagdish Prasad (D) through LRs. and contends that the
order impugned is erroneous and brought to notice of this
Court para No.29 wherein the Apex Court discussed that
the defendant was inducted as a lessee for a period of 20
years and the lease period expired on 23.09.1974. Even if
the lessee had not paid rent, the status of the lessee
would not change during the continuation of the period of
lease. Counsel also brought to notice of this Court para
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No.30, wherein discussion was made relying upon the
judgment in the case of Badrilal vs. Municipal
Corporation of Indore wherein in para No.8 of the said
judgment it is held that tenant at sufferance is one who
comes into possession of land by lawful title, but who
holds it by wrong after the termination of the term or
expiry of the lease by efflux of time. The tenant at
sufferance is, therefore, one who wrongfully continues in
possession after the extinction of a lawful title. There is
little difference between him and a trespasser and
discussion was made that a tenancy at sufferance does not
create the relationship of landlord and tenant. If the lessee
remains in possession after the determination of the term,
the common law Rule is that he is a tenant on sufferance.
11. Counsel also brought to notice of this Court
para No.35, wherein it is held that in order to create a
tenancy at sufferance the tenant should have lawfully
entered into possession in recognition of the landlord's
superior title and should have continued to remain in
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possession in the same right after the termination of the
tenancy without asserting any title hostile to that of the
landlord. He also brought to notice of this Court the
discussion made in para No.36.
12. Counsel brought to notice of this Court the
provision under Order XXI Rules 97 to 101 of CPC. It is
contended that the only persons with independent right
have the right to record resistance and not a party who is
tracing his right through judgment debtor who has
suffered decree. An independent title which is superior to
that of the decree holders, in such case, the Court to
adjudicate the right of the obstructor.
13. He also relied upon the judgment in the case of
Babulal vs. Raj Kumar reported in (1996) 3 SCC 154
and brought to notice of this Court para No.6 wherein it is
held that determination of the question of the right, title or
interest of the objector required to be adjudicated under
Rule 98 which would be an order and a decree under Rule
103 for the purpose of appeal or otherwise as if it were a
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decree. He relied upon the judgment in the case of
Noorduddin vs. K.L.Anand (Dr) reported in (1995) 1
SCC 242 and brought to notice of this Court para No.10
wherein discussion was made regarding Order XXI Rules
97 and 98 of CPC and held that a person claiming
independent right, title and interest and resisting the
execution, the Executing Court has to adjudicate the claim
and record a finding. He also relies upon judgment
reported in (2003) 12 SCC 219 in the case of Ashan
Devi vs. Phulwasi Devi, particularly para Nos.21, 25 and
27, wherein it is held that a third party resisting or
obstructing the execution of the decree can also seek
adjudication of his right under Order XXI Rule 97 of CPC in
the same way as a decree holder.
14. He also relied upon judgment reported in
(2015) 1 SCC 379 in the case of Sameer Singh vs.
Abdul Rab, wherein in para No.26 it is held that the
Executing Court has power to adjudicate upon all
questions relating to rights, title and interest in property
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arising between the parties including those of the
stranger. He relied upon judgment reported in (1996) 4
SCC 144 in the case of Samir Sobhan Sanyal vs.
Tracks Trade Private Limited and Others, wherein in
para No.6 discussion was made regarding Order XXI Rule
99 of CPC. He also relied upon the judgment reported in
(1973) 2 SCC 705 in the case of Rajender Singh vs.
Santa Singh, particularly para Nos.17 and 21, wherein it
is held that negligence or failure of the plaintiff to act in
time enables the defendant to acquire rights by operation
law of limitation. He also relied upon the judgment
reported in (2015) SCC Online KAR 8913 in the case of
Leharchand Dand and brought to notice of this Court
para Nos.73 and 84, wherein discussion was made that
Section 27 is a substantive provision of law,
extinguishment of title of the rightful owner gives good
title to the trespasser. So also, he relied upon the
judgment reported in (2006) 5 SCC 353 in the case of
Prem Singh and others vs. Birbal and Others and in
para No.11 of the said judgment it is held that limitation is
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a statute of repose and bars a remedy, but does not
extinguish a right.
15. Counsel also relies upon the following
judgments and several judgments regarding void
judgment and decree and void and nullity:
i. 1995 Supp (4) SCC 497, Sanehalate Paul
vs. Nirmala Sundari Dey
ii. (2004) 1 SCC 317, Khetrabasi Biswal vs.
Ajaya Kumar, wherein in para Nos.6 and 7
held that non-joinder of necessary party,
judgment void and has no binding effect.
iii. (2012) 1 SCC 476, Union of India and
Others vs. Ramesh Gandhi, wherein it is held
that judgment obtained by fraud is nullity and
void.
16. Counsel referring to the above judgments,
would vehemently contend that without making the
objector as party to the proceedings, decree is obtained
and also contends that obstructor under I.A.No.1 is
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claiming right over suit property under the lease and
under I.A.Nos.3 and 4 claiming sub-lease and the same
has been misinterpreted by the Trial Court and committed
an error in dismissing the same.
17. This petition is resisted by the respondents by
filing statement of objections. The main contention of the
respondents is that the Trial Court having considered the
material on record, rightly comes to the conclusion that
the obstructor claiming right from the person who had
suffered a decree and the same has been observed by the
Trial Court while passing the order as per Annexure-R1.
Counsel also relied upon the chart showing flow of title of
ownership and leasehold rights in respect of schedule
property as per Annexure-R2 and copy of map is produced
as Annexure-R3. Respondents' counsel also relied on the
order passed in SLP and particularly Annexure-R6,
certified copy of undertaking letter given by the petitioner
and his son and also certified copy of entire order sheet as
Annexure-R7 so also certified copies of panchanama, kabja
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pavathi, kabuli jawab, bailiff report and photographs as
per Annexures-R8, R9, R10, R11 and R12.
18. Counsel referring to these documents would
vehemently contend that the objector cannot claim right
through judgment debtor who had suffered the judgment
and decree and though claims that the lease came into
existence from Siddalingappa Bulla and their LRs are made
as parties to the proceedings in the original suit and
subsequent if any lease agreement is executed during the
pendency of the suit and proceedings, same will not create
any right.
19. It is also contended that when the appeal was
challenged before the High Court as against the judgment
and decree and also the order passed by the FDP
proceedings, both of them have been dealt by the Division
Bench of this Court and particularly in para No.28 held
that the lease was not permanent, neither the appellants
or any person deriving interest under defendants No.12
and 13 can claim immunity from eviction from leased
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property. They must deliver possession to the plaintiffs
and defendants No.1, 5 and 6. Counsel also vehemently
contends that the petitioner was very well aware of all the
developments but even then he has ventured to enter into
the agreement by suppressing the true and real facts and
petitioner has filed the present petition to lay false claim in
respect of portion of property in question.
20. The petitioner is claiming his alleged rights
under the agreement said to have been executed by the
deceased Siddalingappa Ishwarappa Bulla and subsequent
agreement said to have been executed by Holeyappa A/f.
Siddalingappa Bulla during the lis. Admittedly
Siddalingappa Bulla and his adopted son Holeyappa Bulla
have expired. The present respondents No.9 to 11 are the
legal heirs who are representing deceased Siddalingappa
Bulla and Holeyappa Bulla. The respondents No.9 to 11
herein have lost the legal battle upto the Hon'ble Supreme
Court. As such, the present petitioner who is deriving his
title under deceased Holeyappa Bulla and his legal heirs,
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cannot be said to have an independent right to maintain
the 3rd party obstructor's application before the Executing
Court. Hence, the Trial Court has rightly dismissed the
application and no need to adjudicate the issue when the
right is claimed through persons who have suffered a
decree up to the Supreme Court and hence contends that
no ground is made out to set aside the order.
21. Counsel in support of his argument, relied upon
judgment reported in AIR 1964 SC 1889 in the case of
Rupchand Gupta vs. Raghuvanshi (Private) Limited
and Another and contends that the ratio laid down in this
judgment is that the Trial court in a suit for possession
against lessee cannot appoint sub-lessee and impleading
of sub-lessee not necessary and he particularly relies upon
para No.12 with regard to the same, wherein it is held that
it is quite clear that the law does not require that the sub-
lessee need be made a party. It has been rightly pointed
out by the High Court that in all cases possession of the
laid on the basis of a valid notice to quit served on the
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lessee and does not implead the sub-lessee as a party to
the suit, the object, of the landlord is to eject the sub-
lessee from the land in execution of the decree and such
an object is quite legitimate. The decree in such a suit
would bind the sub- lessee. This may act harshly on the
sub-lessee; but this is a position well understood by him
when he took the subleases the law allows this and so the
omission cannot be said to be an improper act.
22. He also relies upon the judgment reported in
AIR 1998 SC 1754 in the case of Silverline Forum
Private Limited vs. Rajiv Trust and Another and
brought to notice of this Court para Nos.12 and 13,
wherein it is held that the Executing Court can decide
whether the resistor or obstructor is a person bound by
the decree and he refused to vacate the property. That
question also squarely falls within the adjudicatory process
contemplated in Order XXI Rule 97(2) of the Code. The
adjudication mentioned therein need not necessarily
involve a detailed enquiry or collection of evidence. The
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Court can make the adjudication on admitted facts or even
on the averments made by the resistor. Of course the
Court can direct the parties to adduce evidence for such
determination if the Court deems it necessary.
23. Counsel also relied upon the order passed by
this Court in RSA No.1361/2016 c/w. RSA No.1360/2016
decided on 26.10.2023 and brought to notice of this Court
para No.9 wherein this Court has held that a person in
actual possession with independent right over the property
has right to record resistance and not a party who is
tracing his right under the judgment debtor who has
suffered a decree.
24. Counsel referring to the above decisions, would
contend that when the petitioner claims right through said
Siddhalingappa Bulla and his LR's and those persons are
the defendants in the original suit and they have suffered
a decree and also filed appeal before this Court and Apex
Court and they have lost throughout their case and this
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petitioner who claims right through them not having any
independent right and hence adjudication does not arise.
25. Having heard the learned counsel for the
petitioner and the learned counsels for the respondents
and taking note of the principles laid down in the
judgments referred supra, this Court has to consider
whether the principles laid down in the judgments are
applicable to the facts in issue and the petitioner is having
any independent right and needs adjudication as
contended.
26. It is not in dispute that this petitioner is
claiming that he had purchased the ownership of building
and leasehold rights of the land and later developed the
same consisting 4 storied building vide registered deed of
sale dated 21.05.1982. It is also the contention that the
respondents without impleading the petitioner, filed a suit
for partition by selectively but did not represent the
interest of the petitioner. It is the claim of the petitioner
that he has purchased the leasehold rights in the year
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1982. It is also main contention that there was a lessee
who claims that there was a perpetual lease came into
existence vide lease deed dated 07.11.1894 as per
Annexure-E and also there was a document dated
19.04.1941 as per Annexure-F. No doubt, under these
documents, the original lease was executed on 07.11.1894
in favour of Indian Cotton Company Limited, Bombay. The
chart produced by the respondents also clearly disclose
the same and also when the company went in liquidation
in the year 1941, the very document came into existence
in terms of Annexure-F dated 19.04.1941 executed by
official liquidator in favour of one Siddhalingappa
Ishwarappa Bulla and claims that the same is perpetual
lease. No doubt, the petitioner claims that a document was
executed in his favour on 21.05.1982 for a consideration
of Rs.70,000/-. This was followed by deed of ratification
dated 21.08.1982 executed by Siddhalingappa Bulla in
favour of the petitioner with a right to renewal for a period
of 25 years and again 10 years and also claims once again
in 2017 as per Annexure-H.
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27. Having perused the averments, it is very clear
that earlier there was a lease deed of 1894 and
subsequently a document came into existence in 1941 and
no doubt there is a right of sub-lease and here is a case
that the petitioner claiming right through Siddhalingappa
Bulla and he also passed away and his adopted son also
passed away and it is to be noted that in the original suit
his adopted son was made as defendant and his legal heirs
are also made as parties to the proceedings as defendants
No.12(a to d) and wife of Siddhalingappa Bulla was made
as defendant No.13. It is also important to note that the
decree was passed against them and they have also
challenged the decree by filing RFA and when the FDP
proceedings were initiated, order of the FDP Court was
also challenged in RFA and this Court decided both the
RFA's in common judgment.
28. Counsels for the respondents also brought to
notice of this Court that in para No.28, the Division Bench
of this Court held that lease was not permanent, neither
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the appellants or any person deriving interest under
defendants No.12 and 13 can claim immunity from
eviction from leased property. They must deliver
possession to the plaintiffs and defendants No.1, 5 and 6.
Even in para No.29, by referring to the judgment in the
case of Smt. Shanti Devi vs. Amal Kumar Banerjee
reported in AIR 1981 SC 1550 and also Badrilal vs.
Municipal Corportion of Indore reported in AIR 1973
SC 508, it is held that after the determination of lease by
efflux of time, service of quit notice under Section 106 of
Transfer of Property Act is not necessary. It is also held
that for ejecting a tenant by sufferance, notice is not
necessary. It is observed in both RFA's that in the present
case, after the death of Siddhalingappa Bulla, the position
of defendants No.12 and 13 and now that of appellants is
no better than tenants by sufferance. It is observed that
suit was not only for partition but also for possession and
dismissed both the appeals.
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29. It is important note that no doubt counsel for
the petitioner relied upon several judgments and
contended that it requires adjudication and also judgment
and decree are obtained by playing fraud. But, in the case
on hand, it has to be noted that the petitioner is claiming
through judgment debtor and there is no any independent
right as contended by the respondents and no doubt the
Court can adjudicate the issue when an application is filed
under Order XXI Rules 97, 99, 100 and 101 of CPC and if
claim is based on independent right, then the Court can
adjudicate and or otherwise need not necessary to
adjudicate the same.
30. In the judgment of the Apex Court relied upon
by the respondents, it is very clear that the decree against
lessee would bind sub-lessee and claim of the petitioner is
that he is sub-lessee and Apex Court held in the above
referred judgment that impleading of sub-lessee is not
necessary. In the case of Silverline, supra it is held that
the Executing Court can decide whether the resistor or
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obstructor is a person bound by the decree and he refused
to vacate the property. That question also squarely falls
within the adjudicatory process contemplated in Order XXI
Rule 97(2) of the Code. The adjudication mentioned
therein need not necessarily involve a detailed enquiry or
collection of evidence. The Court can make the
adjudication on admitted facts or even on the averments
made by the resistor. Of course the Court can direct the
parties to adduce evidence for such determination if the
Court deems it necessary.
31. Having considered the principles laid down in
the judgment and also the facts of the case on hand, it is
very clear that right is claimed by the petitioner based on
the document at Annexure-R2 and also ratification made
by the sub-lessee and sub-lessee made as party to the
proceedings under whom claim is made and also it is very
settled law that only persons with independent right have
the right to record resistance and not a party who is
tracing his right through judgment debtor who has
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suffered decree. The same is also relied by this Court in
RSA No.1361/2016 supra which has been referred by the
respondents' counsel.
32. In the case on hand, having perused the factual
aspects of the case also, no doubt earlier there was a
lease in 1894 in favour of the Indian Cotton Company
Limited, Bombay and also chart which had been filed by
the respondents clearly disclose that one more document
came into existence in 1941 executed by the liquidator in
favour of Siddhalingappa Bulla and when Siddhalingappa
Bulla's legal heirs have been made as parties as
defendants No.12 and 13, they have suffered a decree and
they have challenged the same before this Court and
appeal was dismissed and the same was also taken to the
Supreme Court and Supreme Court also dismissed the
same and hence even sub-lessee is also bound by the
judgment and decree and there is no need to make the
sub-lessee as party to the proceeding as held by the Apex
Court.
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33. The very contention that the judgment and
decree is obtained behind the back of the petitioner cannot
be accepted and the judgment and decree is suffered by
the persons under whom petitioner claims right and they
went up to Supreme Court and petitioner claiming right
through them cannot resist the application. Hence, the
question of conducting the enquiry as contemplated under
Order XXI Rules 97, 98 and 101 of CPC does not arise. The
adjudication is not warranted as contended by the
petitioner. The Trial Court while passing the order also,
taken note of the aspect in para No.5, wherein it is
discussed that the obstructor filed an application and
claiming rights over the suit properties under a sub-lessee
from Holeyappa Bulla and also the judgment of this Court
passed in RFA's is also taken note of and particularly para
No.28 has been extracted and also categorically discussed
that defendant No.12 in said suits is none other than
Holeyappa Bulla a third party who is claiming property
cannot be said as firm having independent right over the
suit property.
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34. The Trial Court having taken note of the
material on record, comes to the conclusion that he has no
locus standi to raise objections and he is claiming property
as a sub-lessee and nothing but through judgment debtor
No.12. The Trial court while rejecting the application
particularly para 21 also taken note of that decree was
obtained and the same has been challenged before this
Court and also Apex Court and when defendant No.12
under the said suit and his LR's have taken all the
contentions even up to the Apex Court and they failed and
hence rightly comes to the conclusion that 3rd party
obstructor who are claim right voluntarily cannot be said
as independent obstructor and they have got independent
right over the suit properties. It has rightly comes to the
conclusion that applications are filed only see that the
party cannot enjoy the fruits of the decree.
35. Having considered the material on record and
also when the petitioner is not having any independent
right and when the claim is made through family of
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Siddhalingappa Bulla and their LR's have already suffered
a decree and the same has been confirmed by this Court
as well as Apex Court and once again the Trial Court
cannot investigate the same and it is settled law that
under Order XXI Rule 97 of CPC only if independent right
is claimed, then only it requires adjudication and hence
contention of the petitioner cannot be accepted.
36. The other contention of the petitioner's counsel
that when the application was rejected on the very same
day, an application was filed not to issue warrant but the
Trial Court has issued warrant and warrant was executed
within two days of rejection of the application. He also
relies upon order sheet of the Trial Court and no doubt
order was passed on 03.02.2024 and warrant was
executed on 05.02.2024 and already material placed
disclose that possession was taken with the help of police.
It is important to note that the respondents also brought
to notice of this Court that an undertaking given by the
petitioner and his son vide Annexure-R6 i.e. in the month
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of December 2023 and the petitioner does not dispute the
said fact that they have given an undertaking before the
Trial Court. When possession warrant was issued to
execute the final decree in FDP No.2/2019 on 16.12.2023
when the bailiff has gone to the property in question along
with respondents No.1 to 3, 7 and 8 to execute the
possession warrant, by that time the present petitioner
and his son who were present over there, requested for
ten days time to vacate the premises by obeying the order
of the Court and gave an undertaking to vacate the
property within ten days from 19.12.2023 and also given
an undertaking that they are bound by the order passed
by the Court and same is also signed by the witnesses. In
spite of such an undertaking to vacating the premises, the
present application is filed and respondents also relied
upon undertaking letter produced as Annexure-R6 and
after the said undertaking, application was filed under
I.A.No.1 on 06.01.2024 immediately after giving such
undertaking on 19.12.2023 application was filed and the
Court has to take note of the conduct of the parties.
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37. Having perused all these materials on record, I
do not find any error committed by the Trial Court in
rejecting the application and the same does not require
any adjudication when the admitted facts are very clear
that the petitioner is claiming right through judgment
debtor who had suffered a decree and there is no
independent right as contended by the respondents.
Hence, I do not find any merit in the petition to reverse
the finding of the Trial Court.
38. In view of the above discussions, I pass the
following:
ORDER
The writ petition is devoid of merits and is hereby dismissed.
Sd/-
(H.P.SANDESH) JUDGE SH CT-MCK List No.: 1 Sl No.: 100