Karnataka High Court
Smt Dhanalakshmi W/O L Shankar vs Sri Hanumanthaiah S/O Chinnappa on 21 June, 2010
Author: S.Abdul Nazeer
Bench: S.Abdul Nazeer
IN THE. HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 213T DAY OF JUNE 2010 BEFORE THE HON'BLE MR.JUS'I'ICE s. ABDUL « REGULAR FIRST APPEAL N OE48 / 8: MISC. CVL.7163/2010 'T BETWEEN I Smt. Dhanalakshmi W/0. L. Shankar Aged about 35 years R/a. No.38, 3rd Main Road HT . V 6"' Cross, Ramakr1'shnanagar~. _ = _ v_ T 6:" Phase. Bangaiorea---'---5601078 O V...jAPPELLAN'I' . A 1 (QDMW ,4") (By Sri : A.S. MaFu:4sha,';'.Ad'J,_}--.A'_ ' ' ' AND : 1. Sri. Haxaurxaanfhafah = S/0. Chirinappa _ Aged about 45_yTears Arfliappa. " _3Y'C' Mé1i11._4¥*_'? Cross ~ . A Ba I'ig'I-'!.l:C1,V'v€ 078 A Smt. Giaijémma W/0, Narayanappa v Aged about 45 years 'T R/._a. No.38, Upstairs " 'V3¥"'_A7i\/Iain Road. 61h Cross " Ramakrishnanagar 6"" Phase, JP. Nagar Bangalore -- 560 078 RESPONDENTS
(column) [By Sri: S.P. Shankar, Sr. Adv. for Sri. V. Rangararnu, Adv.) This RFA is filed under section 96 of CPC ll judgment and decree d't.26.2.201O passed on l..;'~\.s._.. 6 in Ex. No.2885/2007 on the file of the"Chi.el' t.%jt1dgej;n'sma1i.1;V Causes Court, Bangalore. j.
MISC. cVL.7163/2010 is filed unticrl'<3rder_.z§:s Rtlle 5'; r/W. section 151 of CPC praying 'for"s.tay. This Regular First Appeal ioeen heard and reserved for §u.dgment_, "day the Court Pronounced the following: = ' I V' Thié'; appeal.'-"iS«v.__:direC!;ed~.._agairist the orders on LA. Nos.5 and ex} 'N¢:2'ss5;<2oo7 dated 26.2.2010 on the file of tlflo Court of Small Causes, Bangalore. the decree holder, the 13* respondent was l.Al(;§%3l)tor and the 21"-1 respondent was obs'tru-e__torf_v'F'orl~V'the sake of Convenience, the parties are " referred their ranking before the trial Court. K» on filed objections contending that he was not a tenant under Chikkarnuniyappa nor under Srnt. Dhanalakshmi contended by her in the eviction petition and that no relationship of landlord and tenant b€tW€€.Ii'>"I1--i::I.1'1' M Smt. Dhanalakshmi. He has further vacated the premises in question _in the?.['irst_ weeitof "i\'/{arch'h'--~ it 2005 and handed over the safi1€..t0 Narayanappa is in occupation oif"t}ier_:'oaVid__pretni.ses""sinc:e then. The Court below a11§we_d 12.2006 and directed Han1.1rna--nt:haiahb «deliver vacant possession of; The said order wasby1tH:ann1na.nthaiah as aiso Smt. Girijarnrna,' '' No.4'7/2OO7 before this Court. ThiSVVV'C.Qt1I't'fl-'SIEI.:tfi~Et?t_;..5i1'1C€ the tenant. had already _.. V.\racate:i§.&:t1'1e'~premis'espin question, the question of delivery of V_vaca'n.t_ po_sses-sion of the premises by Hannmantliaiah does not. if Smt. Girijamma is in lawfui .posses'sion, itis open for her to protect the said possession it proyingher right over the same in accordance with law. i'svVh'eid as under:
:5 If the tenant has already vacated the property and if the landlord is seeking possession of the property and if any person ll claiming right under the tenant, then it is it ' for the landlord to execute the decree agai.i1s:t.aV person, who is claiming his right"upn'der.gi.he«._ V tenant However, if there are lawful o_ljs'tructio11..sp, y ~ A T a remedy is open to the petitionei" to pr'ote§:t_ her possession in accordan'ce'iwith llaw."~HRC', Court cannot ti'a\,r--63rse pbeyondl'-~1;he iimi1;e.:i"
jurisdiction. It is a1s'o.isubniii{te_d" the learned Senior Counsel that.,_yp_etition_er_ N622 Vh.?a_s"filed a separate suit'~..fo'_r-- declaration«..a'n?:i~.hasflalso filed an applicathynsjgi-fi~der..Q_rder 97 of CPC. tin-.soj;pfar'"as thepossesszion is concerned, in pursuance'ofyltheprder passed by the HRC Court}.._'th.e _ has Jalready Vacated the schedule'pijopwertyrii" the property isvacated, it is v_at:ailab1e to the.,r_es.pondent but if it is occupied *pai'ty claiming independent right, it is it .p_eaVro._aV't-t_er, which is required to be decided in an it appropriate: proceeding. However, in View of the sltatemehnlt made by the petitioner No.1 that he is _ _not"'i--n possession and in View of the issues it v._regard to the title of petitioner No.2, the HRC ll f Court would not have gone into these questions and in my opinion, there was no reason for the HRC Court to decide all those complicated issues. It is suffice, if the petitioner No.2 has gofl independent right, she can protect H possession and it is stated that shehas _-already. filed an application under Order j;Ruie'_9--7 if V CPC. if that is so, it is for the Exeo__ui*i_ng court to. 2 if K decide the said issue and give'-a finding andgit"i..s'"~ not necessary to mention that;aafnyVV order poissed} in those p1*oceedin§'gs~..p_wil_«ld effect"
decree." id VA d if d M ' Accordingly, the revisio.n Thereafter the Court below " application I.A.5 fiied under Ol"C'1Av£fA3A1V;'Vf'f§'v€'"v_V3{lVV_VEAA'{'..p1l€«.97-and99 of ore and I.A.6 filed under Order XI' 1'/w. section 151 of CPC. flhe obstructor Smt. Girijamma was examined as "the documents OBJ~l to 16 have been niéiriied 4 in .""h.,erfleifidence. After considering the rival if contentions of the parties, The Court below has framed the .. , .. following points for considfiration :
c' "1. Whether the applicant/obstructor in LA.
filed under order XXI Rule 97 and 99 r/w. p section 151 of CPC and under Order XXI Rulef" . 110 and 101 of CPC is entitled for redeiiveiffiiof 9 possession of the schedule premises ?
2. What Order '? "
4. The Court below passe'd~._an o'r=der.a11'ovt/thjg'-'the:
application filed by the o'ostruct}o_rfi'S_mt=V._V Gii9ij"ar:1;i1g1_i§and directed the decree hoiderdt tog u"thvc:"obstructor in possession of the suit scheduIe:'property'*...Vv_order of the Court below is .
" LA, ti'ecE. XXI Rule 97 of and LA. No.1/"I .fi1ed"._urider 100 and 101 1'/W. sectioAn"--e15}ov of aliowed, directing the decree holder' put the obstructor in otV"th'e'V property dispossessed off, ' 1"withiii.two""mo11ths from the date of this order, the obstructor is entit.leQl to A enforce this order in accordance with law. "
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5. Sri. A.S. Mahesh, learned Counsel appearing for the appellant submitted that the decree holder purchased the property under a deed of 26.2.2004 from Sri. Chikkamuniyappa. Thereafter-,._:a b of rectification dated 12.08.2008 Was"JeHXeciute'd_ the description of the schedule it become the absolute owner of thelsiuit. sch'eduifi The judgment debtor was pospsietssrion portion the suit schedule property. mat is .the_'p'deVcre'e*._ho1der filed I-IRC No. 13/ 2006 his _Was:al1oxved by the Court below "7F'ee1iijg aggrieved, the judgment.iv'd'ebt.o:rj; as':*fa1so"-.tf;e obstructorf filed a revision. petiton be-me;ccigtfiin:im§}:;:§"":\io.'47/2007 3.,/id this Court disposed of utheb s.aid._rev_isiari petiton on 18.7.2007. The ...V,dec1'Q€A.;'..hoIde1' iS'A'Et._1'§tV'\/'fut owner of the suit schedule VHprop'e--rty avndp is entitled for possession of the same. The decree-.,has' b'eer;;"execut.ed and the possession has been talcenthby the decree holder. The obstructor under a deed of v19_.8.2'O06 claims to be the owner of the said property. the decree holder tithe first purchaser of the suit u' schedule property, the later right said to have been created in favour of the obstructor is subject to the right prev'iousl.y'»o. created in favour of t.he decree holder. The1*efo.:*e,i'_pth_e'if' obstructor has no right, title or interest what"
respect of the said property. The evi:etiorrpeti'i;ion the decree holder has been allowed bythe"<:ou1't and the said decree has been executed';i4i:.fI'heretore,1 of directing delivery of it property in favour of the obstructor does argued that the obst1'ucto'r;¥ has suit in 0.8. NO9741 /2O()6"lcr-.a"decla1*at:.on. title in respect of the p1'oper'ty :f:.Ti1e'ret'oiieg t'ficworde1' impugned herein need not be irnpienieritrede.peiifltilinlgdisposal of the said suit. _xOnV the'"cth_er_vhand Sri. SP. Shankar, learned V':_VScr1Vi'o:i Counsevl "appearing for Sri. V. Rangaramu, learned lor«."_"reSpondent No.2 submits that the property
--Vpu1'chuasedAaby the decree holder as per the sale deed dated "'V.2t3;'2v;2Q0%lV"was only a site measuring 35 ft. E3ast--West and l\iorth--So'uth consisting of a small AC sheet roofed ls 11 property was amended so as to bring it in conformity with the description in the eviction petition. On the other hand, the obstructor had purchased the property from» Chikkarnuniyappa, through his power of attorney Sri. Narayanappa. The said Narayanappa, after of the said property had delivered posselssionjz property in favour of the obstructor. 'of sale deed was rectified by a de.e:d'~.V_of rectili'c.ati'on"'~--dated 22.8.2006. The property desc1'ib:ed-- salel'd'ced..o§f the obstructor dated 19.8.2006 ;dyt§h_e property purchased as measuring 40' :E:'ass5t~_WestVll40 ft. north- south anclloy..a;"s?ieeld*fi.;of rectitlica,ti'o1'1-dated 22.8.2006, the schedule the attended so as to include the construetionl'ti--ny~L.he suit blpijoperty as 3 sq. cement sheet .-vt.roofed'~i:3ou0se. Thiis,sV__thyev obstructer was in possession of lWthe;prope.ijty.yinyher own right under the deed of sale dated 'lll.'5i*herel'o:'e, the question of dispossessing her ~under.l"tlf1e*VAaguise of the execution of the order in HRC "ji*'1§).'r1s/_20tj'6 dated 16.12.2006 does not arise. 11. is further
-.y0argt1ed'AAlthat the Court below has passed the order after it 12 holding a detailed enquiry. The court below has come to a conclusion that the obstructor was dispossessed by"
decree holder while executing the order in , A' 13/2006 dated 15.12.2006. Having regard te...o'i-e.er?Vi.]§:>;1 T Rule 101 of CPC, the Court questions including the question, relating to righi'g3Ltii'.l'e and interest in the property between. "dec1'eel"h.olCiei5 obstrucior. The said finding not call for interference. It ll'u3:'th'erl '_;that before filing an applica'§io.nl,:V the -civil suit in o.s. No.974 1/2'o'fgs her title. Therefore, the inipugned .(y¢l.1f(/Q17 result of the said suit, having l04 of CPC. He prays for disrnissalllllofgthae ~ I%AiaVinAg"*regard to submissions of learned Counsel for ltruestion for consideration in this appeal is the order of the Executing Court dated id id ' e4l2€i.;?,.2Q}Olirnpugned herein requires interference '? la.
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8. As has been noticed above, the decree holder filed the eviction petition against the judgment debtoVrlel.i_n*._V HRC No.13/2006 for his eviction under the the Act. in the statement of objections to it petiton, the judgment debtor has sgtatedylthat he tenant under Narayanappa and, that he had vaczited and handed over the Vacant possessioieyilyiof the said favour of Narayariappa i\/iarchfl2005 itself. He has denied and tenant between The Cg-mt below has V.-16.12.2006. The judginent,c,i'eb.to:r;ly.asl*failso"jl.the obstiwicter filed a revision. petition this Court has disposed of the i*eVisl1-arr .petitoA1:_'l1SZ'/.2007 observing that the _.v.ObSJ[I'LEC3'J§OI' "{32"" pe"Eiti,o_oev;' in the revision petition) can Vprotercty her poi:-4se*ssion in accordance with law. Liberty was to oizstructor to pursue the application filed by V her unde1"'*--l(:f).r'Cier 2} Rule 97 of CPC before the Elxecutzirig l The Execution case was filed by the decree holder i9;'l2.2007 and delivery warrant was issued on in 14 2.1.2008. Finally, the decree was executed on 14.1.2008. Thereafter, the obstructor filed two applications LA. Nos.5 and 6 under Order 21 Rules 97 and 99 and under ()rdec1:2_1i_"i._V_ Rules 100 and 101. of cpc for adjudication of he;f"':4-igijtsg and to restore possession of the property;---».«E111' applications, the obstructor has s=tate:d.ybt?hat hi purchased the property on 19,i'5.,p}_986V"and t11a,t"u'd'sxhe'_ it been in possession of the propertyeeiin her ow.nrright:':§ The said contention has beend._4_d'enie.'VcA1 byvt"t--hVe,vde.ci'ee holder by fiiing objections. The obstr_uctor as witness No.1. In her e;Xaii';pin'ation ir1=':c11'ief.,.' ':si1e___has stated that C1iikkamaniy'apf3a, -owne'r'oi t'hev--property had executed general power of attVo'rney_4Vbi'1a__"iayour of her husband dated 19.5.1986 aundlhve yirasAe.a1'"so:..'put in possession of the said .-v..prope»i'ty.v Tier hus-bandyvhas put up construction thereon dtand"'l1as.._taken">power connection from the KEB. Her soldttdthe property by executing the sale deed
--pdated.442E.3.;"9V.y.&p2()(').V4 in her favour. It is further contended that ppasvvtttalso filed a suit in O.S. No.9"/41/2006 for .'_p1'_cance1.1ation of the sale deed dated 26.2.2004 executed in it
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15 favour of the decree holder and for 'certain other reiiefs. She has produced severai documents to establish that is in possession of the property in question. copy of the electricity bill issued by the KEB is it the tax paid receipt having paid taxilior OBJ--4- are the four receipts.which:Adtisclosed.-".i,tha't2 D1.'013ei'tY Stood in the name of ohs«ii€t"1ctor. A_p'ei'uisaifoi;Vthe entire documents produced.V_i)y wiouidtivcileariy indicate that she has AV the said property. V A V V t V
9. is that she ahs purchased per the saie deed dated 26.2.2004 andthe propertytsiaid to have been purchased by _.._her been de'scr_i_b_ed in the schedule to the said evident that she has purchased the ptrcper_ty N0. No.38 situated at Jaraganahalii, .Bangaiore'~--V:pSotith Taiuk now coming under the jurisdiction 'CA/IC,V"'Rajarajeshwari Nagar. 3"" Main, 6'" Cross, __g__Ran1a}{rishnanagar, JP. Nagar, Bangalore -- '79 nieasuring K» i...
16 35 ft. East--West and 37 ft. North~South and consisting of AC sheet roofed house measuring one sq. However, in the HRC Case in HRC No.13/2006 filed by the decree against the judgment debtor, the property is '7' under:
"All that peace and paroei the u, it bear rig No.38 situated at>dd.aragan'ahai1.i_Vi11é1ge','w Uttafahalli hobli, Bangaiored"'VS';ou_t.h Comes under t}1ie'~~..'_ Rajarajeshwari Nagetr, , Cross, Ramakrishnanagar,:.J.'P.-- -- 79, Consists of shed, bounded on vWest by Smt. Paty1thetri1dhf--:aisf:'thO11:S€~.:,V__ NQ'fth by road and South by Smt."Ijii1gtri2tia1;sE1mi's house."
In the"-vpvetition, she has stated that she as V".putr;e;hase.d "th'e.VATV15rc)__pe1*ty Consisting of ground and first floor. In 'éhe--..grou11d--._floor, there are two residential houses and a _qshed.ua"Th'ejudgme11t debtor is 21 tenant in respect of the ., .. . on etrnonthly rent of Rs.1,400/~. The eviction petition 'filed cn 12.1.2006. it is the not the case of the decree ti (.-
'I7 holder that she has put up construction after the purchase of the aforesaid property under the sale deed dated 26.2.2004. However, a deed of rectification was €X€Q'v_ttV6'€1_"K'~., on 12.8.2008 by Chikkarnuniyappa in favour of -3' holder correcting the schedule to the sale _ 26.2.2004. Even according to the property consists of four sq. bu.1'id__ing if1._the and 3 sq. AC sheet roofed p1'ernisesVV..i_xr'1 the i*irstp_VVAf1o'o1'.:7.ii: is the case of the decree hoider'*~i;.hat::ohsti e*..0?,0i".hEl.S purchased the property as per the salemdeepd and the scheduie to they s'a:ei1"deéd '1-«.é{:fi.i"1e.d._,..Tbn 26.2.2006. According,vto"wh.i(;h vsite--.2meas12ires- X 40 ft. consisting of 3 sq. bi1i1di.ng; on "record clearly indicate that obstructozjpwasttin V'poss'ession of the said property in question. in the "-g1,ti__s_e . of executing the order in HRC 16.12.2006, the obstructor couid not have from the said property. Order 2} 2 Rule 1.2.0.1 (L2P.C's2tates that an question (inciuding questions '2V".44're,1::a'ti1eig_tovright, title and interest in the property} arising _'b_et'=.yeen' the parties to a proceeding on an application it 18 under rule 97 or 99 or their representatives and relevant. to the adjudication to the application, shall be determined by___ the Court dealing with the application and not separate suit and for this purpose, the court. shall, '7' withstanding anything to the contrary.»contained"
other law for the time in force, be d_eeznedr_to_l'i2av.e*--., jurisdiction to decide such questiorn The -rsourt adjudicated the matter under '~.pv1'()\/'.l.$i"()ll_'1l_..'A !,iThe obstructor was examined cont.entions and in her evidence, several and on appreciation, :r'e'coi'd, the court below has come to a__concl--usion pthatljobstructoi' has been dispossessed" of fact recorded by the court below on pl1'op'e,r'ap.preciation of the material on ."~r§}CO1'Cl"~l%3tI'i(IlA'?.'{1€l'C'lS~~IfiQWp.31'V€1'Si'[y, illegality or irregularity l.'Wl1'§tl."SQ C,\{€iT'ln:V'fl1§: said finding. Order 21 Rule 104 states thatrexzeryl 'o.rder;;.Vrnade under Rule 101 or 103 shall be subject to"'--the'result of any suit that may be pending on the lldatjei commencement of the proceeding in which such ._forl'd.erdis made, if in such suit the party against whom the, lh nur-
19 '% order under Rule 101 or 103 is made has sought to establish a right which he claims to the present possession of the property. In the suit filed by the obstructor No.97-41/2006. she has sought for cancellation *' deed of the decree holder and for _certair1 which is admittedly pending. Therefore, 3C to adjudicate the question ind_c"o.ntro\?ersy parties, having regard to Qrder h'
11. in the re_su1.t, appea.1 fails antdaccordingly dismissed. It judgment and decree is,ivsu"c_§ec'it. r'e.su.1t of"'thevj%udgment and decree, which rnay"' dbe V' the Civil Court in O.S. No.9741/2OVU5ih "c§.urt is directed to dispose of the said vsiiiitviiuithoutbeingé'influenced by the impugned order by "the4_e:é;ecuting court or the observations made in nt.
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12. In View of the disposal of the appeal as above, Misc. CV1. 7163 / 2010 does not survive for consideration,' is accordingly dismissed. N0 costs.
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