Karnataka High Court
Chandrakant vs Shankar & Ors on 9 July, 2019
Author: B.M.Shyam Prasad
Bench: B.M.Shyam Prasad
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 09TH DAY OF JULY 2019
BEFORE
THE HON'BLE MR.JUSTICE B.M.SHYAM PRASAD
MFA NO.200637/2019 (CPC)
BETWEEN:
Chandrakant S/o Mahanthappa
Biradar, Age: 44 Years
Occ: Agriculture
R/o H.No.7-1214-32/23
Mahalaxmi Layout, Humnabad
Kalaburagi
... Appellant
(By Sri Shivanand Patil, Advocate)
AND:
1. Shankar S/o Malleshappa
Age: 55 Years, Occ: Agri.
R/o H.No.2-90/A
Near Hanuman Temple
Jagat, Kalaburagi-585103
2. Kallappa S/o Malleshappa
Age: 46 Years, Occ: Agri.
R/o H.No.2-90/A
Near Hanuman Temple
Jagat, Kalaburagi-585103
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3. Basawaraj S/o Malleshappa
Age: 40 Years, Occ: Agri.
R/o H.No.2-90/A
Near Hanuman Temple
Jagat, Kalaburagi-585103
4. Smt. Sushilabai W/o Malleshappa
Age: 76 Years, Occ: Agri.
R/o H.No.2-90/A
Near Hanuman Temple
Jagat, Kalaburagi-585103
5. Ramachandra S/o Bheemsha
Age: Major, Occ: Agri.
R/o Kalagnoor
Tq. & Dist. Kalaburagi-585104
6. Malleshi S/o Shambu
Age: Major, Occ: Agri.
R/o Kalagnoor
Tq. & Dist. Kalaburagi-585104
... Respondents
(Sri Anil Kumar D. Chavan, Advocate for
R1 to R3-(Absent);
Notice to R4 dispensed with V/o dated 11.06.2019
Notice to R5 & R6 served-unrepresented)
This Miscellaneous First Appeal is filed under
Order 43 Rule 1 of the CPC, praying to allow the appeal
by setting aside the impugned order dated 23.10.2018
on I.A No.II in OS No.188/2017 on the file of II Addl.
Senior Civil Judge, Kalaburagi and consequently allow
I.A.No.II.
This appeal coming on for Admission, this day, the
Court delivered the following:
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JUDGMENT
Heard the learned counsel for the appellant. None appears for the respondents. Perused the appeal papers.
2. The plaintiff in O.S.No.188/2017 on the file of the II Addl. Senior Civil Judge, Kalaburagi (for short, 'the Civil Court') is aggrieved by the impugned order dated 23.10.2018. The Civil Court by this impugned order has rejected the appellant's application (I.A.No.I) filed under Order XXXIX Rules 1 and 2 of CPC for restraining the defendants from interfering with the plaintiff's possession and enjoyment of the subject suit property in Sy.No.39/2, measuring 8 acres 34 guntas (also referred to as Sy.No.39/3Aa measuring 3 acres 13 guntas) situated at Kalanoor village, Kalaburagi Taluk and District till disposal of the suit (referred to as 'the subject property').
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3. The appellant - plaintiff filed the suit for declaration that he is the owner of the subject property and for injunction against the defendants from interfering with his possession and enjoyment of the subject suit property. In addition, the plaintiff also sought for declaration that the final decree in F.D.P.No.5/2005 does not bind on him. The appellant - plaintiff contended that Smt. Sushilabai - the respondent No.4 - was the undisputed owner of the subject property and another property in Sy.No.58/2. The respondent No.4 transferred the land in Sy.No.58/2 in favour of respondent Nos.5 and 6, and after such sale, the children of the respondent No.4 i.e., the respondent Nos.1 to 3 filed a suit for partition in O.S.No.213/1998. They included both the subject property and the land in Sy.No.58/2. This suit was decreed declaring that the sale deed by the respondent No.4 in favour of the respondent Nos.5 and 6 for the land in Sy.No.58/2 was bad in law and the respondent 5 Nos.1 to 3 were entitled for 1/3rd share each in both the properties viz., the subject suit land and the land in Sy.No.58/2. This judgment in OS. No.213/1998 was challenged in R.A.No.525/2004. But, the Appellate Court dismissed the appeal and thus, the judgment in OS. No.213/1998 became final. It is after this judgment and decree that the appellant - plaintiff purchased the suit property from respondent No.4 with her children viz., respondent Nos.1 to 3 joining as the consenting witnesses. The respondent Nos.1 to 3 filed final decree proceedings in FDP No.5/2005, which is disposed of by drawing up the final decree.
4. The appellant-plaintiff is not aggrieved by the institution of the final decree proceedings or the decree therein except insofar as the final decree Court, while working out the equities, allocated to the respondent Nos.5 and 6 a share in the subject land. The appellant's case is that he was put in possession of 6 the subject property simultaneously with the execution of the registered sale deed bearing document No.2967/2010-11, and he has been in possession of the suit land ever since. The appellant - plaintiff was not issued with the notice in the final decree proceedings in FDP No.5/2005. But, respondent Nos.5 and 6, after the final decree in FDP No.5/2005 interfered with the appellant - plaintiff's possession. This is appellant - plaintiff's cause of action for instituting the suit before the Civil Court. The appellant - plaintiff filed I.A.No.I under Order XXXIX Rules 1 and 2 for temporary injunction against all the respondents from interfering with his possession and enjoyment of the subject land pending disposal of the suit. The Trial Court has dismissed this application. Therefore, the appellant is in this appeal.
5. The learned counsel for the appellant submits firstly, that the appellant - plaintiff was not a 7 party to the proceedings in FDP No.5/2005, and the appellant - plaintiff had purchased the suit land much prior to the date of final decree. As such, the final decree Court could not have passed any order as regards the subject land without the appellant - plaintiff being a party. Therefore, the final decree would not bind the appellant - plaintiff. Secondly, the final decree Court has decreed that the purchasers, i.e., the respondent Nos.5 and 6 would be entitled for the share of the respondent No.4 in the subject property invoking the doctrine of substituted securities. The doctrine of substituted securities could only be invoked in cases involving a charge on immovable property for the debt due and such charge is affected with the creditor not being able to enforce the charge. This doctrine cannot be brought into play in a suit for partition or in working out the equities. Thirdly, neither the respondent No.4, nor her children were the owners as of the date of the final decree proceedings. These circumstances 8 demonstrated that the appellant - plaintiff had made out a prima facie case for trial. The Civil Court without examining these aspects has perfunctorily concluded that the appellant - plaintiff's title to the subject property is under a cloud because of the final decree proceedings and therefore, there is no prima facie case in favour of the plaintiff. The Civil Court has also erred in concluding that the appellant - plaintiff's suit for declaration was not maintainable because the appellant could have his remedy before the execution proceedings under the provisions of Order XXI of CPC.
6. In the light of the submissions, the question that arise for consideration is: whether the appellant had made out a prima facie case for trial and whether the Civil Court's finding that the plaintiff has not made out prima facie case is irregular and impermissible for non-consideration of relevant materials. 9
7. The entire case of the appellant - plaintiff is from the stand point that appellant - plaintiff had purchased the property much prior to the final decree in FDP No.5/2005. But, the appellant - plaintiff was not impleaded in the final decree proceedings, and the final decree Court has passed the final decree even in respect of the subject property. The final decree Court ought to have heard every affected person before working out equities in allocating the share of the respondent No.4 to the purchasers of the land in Sy.No.58/2 invoking the doctrine of substituted equities. The appellant - plaintiff, who is not a party to the final decree proceedings in FDP No.5/2005, cannot be without a remedy because the final decree Court has granted decree. Similarly, the appellant - plaintiff's right to invoke the jurisdiction of the Civil Court for declaration under Section 34 of the Specific Relief Act would not be eclipsed because of the decree and the subsequent execution proceedings. These are questions which in 10 any event will have to be decided after the trial. But, what would be indisputable from the above is that the appellant - plaintiff has made out a prima facie case for trial. The trial Court has not considered these circumstances in coming to its conclusion that the plaintiff has not made out a prima facie case. Therefore, the impugned order is irregular and impermissible in law. As such, the impugned order calls for interference.
8. Further, the appellant - plaintiff has been in possession of the property under a registered sale deed from the year 2010. If the appellant - plaintiff were to be dispossessed of the subject property without adjudication of the different questions which would impact the appellant - plaintiffs purchase of the subject, it is indisputably that the appellant - plaintiff would be put to irreparable loss and injury. The balance of convenience would also lie in granting injunction against the respondents restraining them from 11 interfering with the plaintiff's possession and enjoyment of the property during the pendency of the suit. Of course, it is needless to state that any change in the nature of the property by the appellant - plaintiff during the pendency of the suit will be subject to the final outcome of the suit.
9. In the light of the above said discussions, the following:
ORDER
(a) The impugned order dated 23.10.2018 is set aside, allowing I.A.No.I filed by the appellant before the Trial Court under Order XXXIX Rules 1 and 2 of CPC restraining the respondents from interfering with the appellant's peaceful possession and enjoyment of the subject suit property in Sy.No.39/2, measuring 8 acres 34 guntas (also referred as Sy.No.39/3Aa measuring 3 acres 13 guntas) situated at Kalanoor village, Kalaburagi Taluk and District till the disposal of the suit.12
(b) The trial Court shall consider the suit on merit without being influenced by any observation made by this Court in the course of this order. In view of disposal of main appeal, I.A.No.2/2019 does not survive for consideration. Accordingly, the same stands disposed of.
Sd/-
JUDGE BL