Karnataka High Court
Sri. Prahlad Gowda S/O Krishnagowda ... vs Smt. Jakkavva W/O Basavaneppa Kampli on 18 December, 2024
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NC: 2024:KHC-D:18408
WP No. 102089 of 2024
C/W CRP No. 100041 of 2024
CRP No. 100043 of 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 18TH DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
WRIT PETITION NO.102089 OF 2024 (GM-CPC)
C/W
CIVIL REVISION PETITION NO.100041 OF 2024
CIVIL REVISION PETITION NO.100043 OF 2024
IN WP NO.102089 OF 2024:
BETWEEN:
1. SRI. PRAHLAD GOWDA
S/O KRISHNAGOWDA PATIL,
AGED ABOUT 65 YEARS,
OCC: AGRICULTURE,
R/O: HULAKOTI
TQ: AND DIST: GADAG-582 205.
2. SRI. HANUMANTHAGOUDA
S/O KRISHNAGOUDA PATIL,
AGED ABOUT 63 YEARS,
OCC: AGRICULTURE, HULAKOTI,
TQ: AND DIST: GADAG-582 205.
Digitally signed
by MANJANNA E
Location: HIGH ... PETITIONERS
MANJANNA COURT OF
E KARNATAKA
DHARWAD (BY SRI. ARAVIND D. KULKARNI AND
BENCH
Date: 2024.12.23
11:14:19 +0530
SRI. KIRAN V. RON, ADVOCATES)
AND:
1. SMT. JAKKAVVA
W/O BASAVANEPPA KAMPLI,
AGED ABOUT 64 YEARS,
OCC: HOUSEHOLD,
R/O: SANGATIKOPPA,
TQ: KALAGHATAGI,
DIST: DHARWAD-581 204.
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WP No. 102089 of 2024
C/W CRP No. 100041 of 2024
CRP No. 100043 of 2024
2. SAVAKKA
W/O CHANNABASAPPA SULLAD,
AGED ABOUT 61 YEARS,
OCC: HOUSEHOLD R/O: GANESHPETH,
HUBBALLI, DIST: DHARWAD-580 020.
3. MALAPPA
S/O MARITAMMAPPA AMARSHETTY,
AGED ABOUT 79 YEARS, OCC:
R/O: AMMINABHAVI,
TQ: AND DIST: DHARWAD-581 201.
4. SMT. CHANNAVVA
W/O MALAPPA AMARSHETTY,
AGED ABOUT 59 YEARS,
OCC: HOUSEHOLD,
R/O: AMMINABHAVI,
TQ: AND DIST: DHARWAD-580 201.
5. SRI. MAHESH @
MARITAMMAPPA AMARSHETTY,
AGED ABOUT 36 YEARS,
R/O: AMMINABHAVI,
TQ: AND DIST: DHARWAD-580 201.
6. SRI. TAMMANNA
S/O MALAPPA AMARSHETTY,
AGED ABOUT 33 YEARS,
R/O: AMMINABHAVI,
TQ: AND DIST: DHARWAD-580 201.
7. SMT. DYAMAVVA
W/O BASAVNEPPA SATYAPPANAVAR,
AGED: 65 YEARS,
OCC: AGRICULTURE,
R/O: PUDAKALKATTI,
DIST: DHARWAD-581 206.
8. SMT. NEELAVVA
W/O BASAPPA BENNY,
AGED 64 YEARS,
R/O: SANGATIKOPPA,
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WP No. 102089 of 2024
C/W CRP No. 100041 of 2024
CRP No. 100043 of 2024
TQ: KALAGHATAGI,
DIST: DHARWAD-581 204.
9. SMT. LATA W/O HOLEYAPPA BULLA,
AGED ABOUT 63 YEARS,
R/O: BULLA COMPOUND,
LAMINGTON ROAD,
HUBBALLI-580 020.
10. SRI. ISHWARAPPA
S/O HOLEYAPPA BULLA,
AGED ABOUT 42 YEARS,
R/O: BULLA COMPOUND,
LAMINGTON ROAD,
HUBBALLI-580 020.
11. SANGAMA
D/O HOLEYAPPA BULLA,
AGED ABOUT 30 YEARS,
R/O: BULLA COMPOUND,
LAMINGTON ROAD,
HUBBALLI-580 020.
12. PRIYANKA
D/O HOLEYAPPA BULLA,
AGED ABOUT 27 YEARS,
R/O: BULLA COMPOUND,
LAMINGTON ROAD,
HUBBALLI-580 020.
13. SRI. ANIL
S/O NARAYAN GHORPADE,
AGED ABOUT 50 YEARS,
R/O: VIKAS NAGAR, GOKUL ROAD,
HUBBALLI, DIST: DHARWAD-580 030.
14. SRI. SANJAY
S/O NARAYAN GHORPADE,
AGED ABOUT 44 YEARS,
R/O: VIKAS NAGAR, GOKUL ROAD,
HUBBALLI, DIST: DHARWAD-580 030.
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C/W CRP No. 100041 of 2024
CRP No. 100043 of 2024
15. SRI. BALAJI AND COMPANY,
R/BY ITS PARTNER,
T. SELVARAJ S/O N. THANGAMUTHU,
AGED ABOUT 74 YEARS,
R/O: TQ: HUBBALLI,
DIST: DHARWAD-580 020.
16. SRI. SANDEEP
S/O KISHANLAL GAMBHIR,
AGED ABOUT 51 YEARS,
R/O: LAMINGTON ROAD, HUBBALLI,
DIST: DHARWAD-580 020.
... RESPONDENTS
(BY SRI. ABHISHEK L. KALLED, ADVOCATE FOR R1
- NOC NOT OBTAINED;
SRI. ARUN L. NEELOPANT, ADVOCATE FOR R1 AND R2;
SRI. M.B. HIREMATH, ADVOCATE FOR R8;
R3 TO R16-DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO MODIFY THE
IMPUGNED ORDER DATED: 05.03.2024, PASSED IN EX
NO.228/2023, BY THE HON'BLE PRINCIPAL SENIOR CIVIL
JUDGE AND JMFC, HUBBALLI, WHICH IS PRODUCED AT
ANNEXURE-'A', TO THE EXTENT OF GRANTING LEAVE TO THE
PETITIONERS HEREIN TO LEAD EVIDENCE ON ALL ASPECTS
PERTAINING TO ESTABLISHMENT OF THEIR INDEPENDENT
RIGHT OVER THE SCHEDULE PROPERTY, AND IN TERMS OF
THE OBSTRUCTIONIST APPLICATION IN IA NO.2 (ANNEXURE-
E), ADDITIONAL AFFIDAVIT (ANNEXURE-G), AND MEMO
DATED: 05.03.2024 (ANNEXURE-H).
IN CRP NO.100041 OF 2024:
BETWEEN:
NEELAVVA
W/O BASAPPA BENNI,
AGED ABOUT 65 YEARS,
OCC: HOUSEHOLD,
R/O: SANGATIKOPPA,
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WP No. 102089 of 2024
C/W CRP No. 100041 of 2024
CRP No. 100043 of 2024
KALAGHATAGI,
DIST: DHARWAD-580 001.
... PETITIONER
(BY SRI. MALLIKARJUNSWAMY B. HIREMATH, ADVOCATE)
AND:
1. PRAHLAD GOWDA
S/O KRISHNAGOWDA PATIL,
AGED ABOUT 65 YEARS,
OCC: AGRICULTURE, R/O: HULAKOTI,
TQ: HULAKOTI, DIST: GADAG-582 103.
2. HANUMANTHAGOUDA
S/O KRISHNAGOUDA PATIL,
AGED ABOUT 71 YEARS,
OCC: AGRICULTURE AND POLITICIAN,
R/O: HULAKOTI, TQ: HULAKOTI,
DIST: GADAG-582 103.
3. JAKKAVVA
W/O BASAVANEPPA KAMPLI,
AGED ABOUT 64 YEARS,
OCC: HOUSEHOLD,
R/O: SANGATIKOPPA,
TQ: KALAGHATAGI,
DIST: DHARWAD-581 204.
4. SAVAKKA
W/O CHANNABASAPPA SULLAD,
AGED ABOUT 62 YEARS,
OCC: HOUSEHOLD
R/O: KESHWAPUR,
TALUK: HUBBALLI,
DIST: DHARWAD-580 020.
5. MALAPPA
S/O MARITAMMAPPA AMARSHETTY,
AGE: 77 YEARS, OCC: AGRICULTURE,
R/O: AMMINABHAVI,
TQ: AND DIST: DHARWAD-580 201.
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C/W CRP No. 100041 of 2024
CRP No. 100043 of 2024
6. DYAMAVVA
W/O BASAVANNEPPA SATYAPPANAVAR,
AGE: 67 YEARS, OCC: AGRICULTURE,
R/O: PUDAKALAKATTI,
TQ: AND DIST: DHARWAD-581 206.
7. CHANNAVVA
W/O MALAPPA AMARSHETTY,
AGE: 56 YEARS, OCC: AGRICULTURE,
R/O: AMMINABHAVI,
TQ: DIST: DHARWAD-580 201.
8. MAHESH @
MARITAMMAPPA AMARSHETTY,
AGE: 34 YEARS, OCC: AGRICULTURE,
R/O: AMMINABHAVI,
TQ: AND DIST: DHARWAD-580 201.
9. TAMMANNA
S/O MALAPPA AMARSHETTY,
AGE: 31 YEARS, OCC: AGRICULTURE,
R/O: AMMINABHAVI,
TQ: AND DIST: DHARWAD-580 201.
10. LATA W/O HOLEYAPPA BULLA,
AGE: 55 YEARS, OCC: HOUSEHOLD
R/O: LAMINGTON ROAD, HUBBALLI,
DIST: DHARWAD-580 020.
11. ISHWARAPPA S/O HOLEYAPPA BULLA,
AGE: 37 YEARS, OCC: BUSINESS,
R/O: LAMINGTON ROAD, HUBBALLI,
DIST: DHARWAD-580 020.
12. SANGAMMA D/O HOLEYAPPA BULLA,
AGE: 25 YEARS, OCC: STUDENT
R/O: LAMINGTON ROAD, HUBBALLI,
DIST: DHARWAD-580 020.
13. PRIYANKA D/O HOLEYAPPA BULLA,
AGE: 31 YEARS, OCC: STUDENT,
R/O: LAMINGTON ROAD, HUBBALLI,
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C/W CRP No. 100041 of 2024
CRP No. 100043 of 2024
DIST: DHARWAD-580 020.
14. ANIL S/O NARAYAN GHORPADE
AGE: 45 YEARS, OCC: BUSINESS,
R/O: VIKAS NAGAR, GOKUL ROAD,
HUBBALLI, DIST: DHARWAD-580 021.
15. SANJAY S/O NARAYAN GHORPADE,
AGE: 39 YEARS, OCC: BUSINESS,
R/O: VIKAS NAGAR, GOKUL ROAD,
HUBBALLI, DIST: DHARWAD-580 021.
16. BALAJI AND COMPANY,
R/BY ITS PARTNER,
T. SELVARAJ S/O N. THANGAMUTHU,
AGE: 69 YEARS, OCC: BUSINESS
R/O: PINTO ROAD, HUBBALLI,
DIST: DHARWAD-580 020.
17. SANDEEP
S/O KISHANLAL GAMBHIR,
AGE: 46 YEARS, OCC: BUSINESS,
R/O: LAMINGTON ROAD, HUBBALLI,
DIST: DHARWAD-580 020.
... RESPONDENTS
(BY SRI. ARAVIND D. KULKARNI, ADVOCATE FOR R1 AND R2;
R3 TO R17 NOTICE DISPENSED WITH)
THIS CRP FILED UNDER SEC.115 OF CPC, PRAYING TO,
SET ASIDE THE ORDER DATED: 05.03.2024 PASSED BY THE
PRINCIPAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE
FIRST CLASS, HUBLI ON I.A. NO.2 IN EXECUTION PETITION
NO.228/2023 AND CONSEQUENTLY DISMISS THE I.A. NO.2.
IN CRP NO.100043 OF 2024:
BETWEEN:
1. JAKKAVVA
W/O BASAVANEPPA KAMPLI,
AGED ABOUT 65 YEARS,
OCC: HOUSEHOLD,
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NC: 2024:KHC-D:18408
WP No. 102089 of 2024
C/W CRP No. 100041 of 2024
CRP No. 100043 of 2024
R/O: SANGATIKOPPA,
TQ: KALAGHATAGI,
DIST: DHARWAD-581 204.
2. SAVAKKA
W/O CHANNABASAPPA SULLAD,
AGED ABOUT 61 YEARS,
OCC: HOUSEHOLD
R/O: KESHWAPUR,
TALUK: HUBBALLI,
DIST: DHARWAD-580 020.
... PETITIONERS
(BY SRI. ARUN L. NEELOPANT, ADVOCATE)
AND:
1. PRAHLAD GOWDA
S/O KRISHNAGOWDA PATIL,
AGED ABOUT 66 YEARS,
OCC: AGRICULTURE, R/O: HULAKOTI,
TQ: HULAKOTI, DIST: GADAG-582 103.
2. HANUMANTHAGOUDA
S/O KRISHNAGOUDA PATIL,
AGED ABOUT 71 YEARS,
OCC: AGRICULTURE AND POLITICIAN,
R/O: HULAKOTI, TQ: HULAKOTI,
DIST: GADAG-582 103.
3. MALAPPA
S/O MARITAMMAPPA AMARSHETTY,
AGE: 81 YEARS, OCC: AGRICULTURE,
R/O: AMMINABHAVI,
TQ: AND DIST: DHARWAD-580 201.
4. DYAMAVVA
W/O BASAVANNEPPA SATYAPPANAVAR,
AGE: 63 YEARS, OCC: AGRICULTURE,
R/O: PUDAKALAKATTI,
TQ: AND DIST: DHARWAD-581 206.
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NC: 2024:KHC-D:18408
WP No. 102089 of 2024
C/W CRP No. 100041 of 2024
CRP No. 100043 of 2024
5. NEELAVVA
W/O BASAPPA BENNI,
AGED ABOUT 63 YEARS,
OCC: HOUSEHOLD,
R/O: SANGATIKOPPA,
KALAGHATAGI,
DIST: DHARWAD-580 001.
6. CHANNAVVA
W/O MALAPPA AMARSHETTY,
AGE: 52 YEARS, OCC: AGRICULTURE,
R/O: AMMINABHAVI,
TQ: DIST: DHARWAD-580 201.
7. MAHESH @
MARITAMMAPPA AMARSHETTY,
AGE: 30 YEARS, OCC: AGRICULTURE,
R/O: AMMINABHAVI,
TQ: AND DIST: DHARWAD-580 201.
8. TAMMANNA
S/O MALAPPA AMARSHETTY,
AGE: 27 YEARS,
OCC: AGRICULTURE,
R/O: AMMINABHAVI,
TQ: AND DIST: DHARWAD-580 201.
9. LATA W/O HOLEYAPPA BULLA,
AGE: 54 YEARS, OCC: HOUSEHOLD
R/O: LAMINGTON ROAD, HUBBALLI,
DIST: DHARWAD-580 020.
10. ISHWARAPPA S/O HOLEYAPPA BULLA,
AGE: 33 YEARS, OCC: BUSINESS,
R/O: LAMINGTON ROAD, HUBBALLI,
DIST: DHARWAD-580 020.
11. SANGAMMA D/O HOLEYAPPA BULLA,
AGE: 30 YEARS, OCC: STUDENT
R/O: LAMINGTON ROAD, HUBBALLI,
DIST: DHARWAD-580 020.
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CRP No. 100043 of 2024
12. PRIYANKA D/O HOLEYAPPA BULLA,
AGE: 27 YEARS, OCC: STUDENT,
R/O: LAMINGTON ROAD, HUBBALLI,
DIST: DHARWAD-580 020.
13. ANIL S/O NARAYAN GHORPADE
AGE: 41 YEARS, OCC: BUSINESS,
R/O: VIKAS NAGAR, GOKUL ROAD,
HUBBALLI, DIST: DHARWAD-580 021.
14. SANJAY S/O NARAYAN GHORPADE,
AGE: 35 YEARS, OCC: BUSINESS,
R/O: VIKAS NAGAR, GOKUL ROAD,
HUBBALLI, DIST: DHARWAD-580 021.
15. BALAJI AND COMPANY,
R/BY ITS PARTNER,
T. SELVARAJ S/O N. THANGAMUTHU,
AGE: 65 YEARS, OCC: BUSINESS
R/O: PINTO ROAD, HUBBALLI,
DIST: DHARWAD-580 020.
16. SANDEEP
S/O KISHANLAL GAMBHIR,
AGE: 42 YEARS, OCC: BUSINESS,
R/O: LAMINGTON ROAD, HUBBALLI,
DIST: DHARWAD-580 020.
... RESPONDENTS
(BY SRI. ARAVIND D. KULKARNI, ADVOCATE FOR R1 AND R2;
R3 TO R16-DISPENSED WITH)
THIS CRP FILED UNDER SEC.115 OF CPC, PRAYING TO
SET ASIDE THE IMPUGNED ORDER DATED: 05.03.2024
PASSED ON I.A.NO.2 BY THE EXECUTING COURT AND
CONSEQUENTLY DISMISS THE I.A.NO.2 IN EXECUTION
PETITION NO.228/2023 PENDING ON THE FILE OF PRL.
SENIOR CIVIL JUDGE AND JMFC, HUBLI AS PER ANNEXURE-K
BY ALLOWING THE PETITION.
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CRP No. 100043 of 2024
THESE PETITIONS HAVING BEEN HEARD AND RESERVED
ON 12/11/2024, COMING ON FOR PRONOUNCEMENT OF
ORDER THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
CORAM: THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
CAV ORDER
The third party obstructer/applicant has filed W.P.
No.102089/2024 aggrieved by the order dated 05.03.2024
passed in Ex.No.228/2023 by the Principal Senior Civil Judge
and JMFC, Hubbali. Assailing the very same impugned order,
respondent No.8 in the writ petition has filed C.R.P.
No.100041/2024, and respondents No.1 and 2 in the writ
petition have filed C.R.P. No.100043/2024. As such the writ
petition and the civil revision petitions are disposed of finally
by this common order.
2. The facts of the case are that, respondents No.1
and 2 instituted a suit in O.S. No.2/2009 on the file of the I
Additional Senior Civil Judge and CJM, Dharwad, seeking
relief of partition and separate possession of their share in
the Plaint Schedule 'A' and 'B' properties, excluding Schedule
'B1' properties amongst other ancillary reliefs. The suit was
decreed holding that respondents No.1, 2, 3, 7 and 8 were
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entitled to 1/5th share in Schedule 'B' properties. Basing on
the preliminary decree passed in O.S. No.2/2009,
respondents No.1 and 2 in the writ petition filed F.D.P.
No.13/2019 on the file of the I Additional Senior Civil Jude &
CJM, Dharwad. The Executing Court drew the final decree
vide order dated 30.05.2020. Aggrieved by the preliminary
decree passed in O.S. No.2/2009 and against the judgment
and decree passed in F.D.P. No.13/2019, respondents No.9
to 12 in the writ petition filed R.F.A. No.100301/2019 and
R.F.A. No.100248/2020 before this Court. This Court by a
common judgment dated 24.08.2023 upheld the judgment in
O.S. No.2/2009. Aggrieved thereby, respondents No.9 to 12
carried the matter in S.L.P. No.23607/2023 & 23608/2023,
and the SLPs were dismissed. Thereafter, respondents No.1
and 2 filed execution proceedings in Ex. No.181/2023 on the
file of the I Additional Senior Civil Judge and CJM, Dharwad.
The Executing Court by order dated 25.11.2023 transferred
the execution proceedings to the file of Principal Senior Civil
Judge and JMFC, Hubballi, and the same was renumbered as
Ex.No.228/2023.
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3. It is the case of the writ petitioners that in the
process of executing the decree against the defendants in
O.S. No.2/2009, plaintiff also sought to execute the decree
against the writ petitioners who were not parties to the
proceedings. It is the case of the writ petitioners herein that
they are asserting their independent rights over the schedule
properties and they have moved an application under Order
XXI Rule 97 of the Code of Civil Procedure, 1908 before the
Executing Court. Respondents No.1 and 2 filed their
objections. The Executing Court has passed the impugned
order observing that the Court while passing an order on I.A.
Nos.1, 3 and 4 under Order XXI Rule 97 of CPC had held that
no evidence is required, as the sub-lessees are claiming right
through defendants No.12 and 13 of the suit i.e., the legal
representatives of Sidlingappa Bulla (who were parties to the
suit). But the present third party is claiming right from
original purchased of the leasehold rights Sidlingappa Bulla.
The Executing Court considering the nature of the lease in
favour of third party and terms and conditions of the lease
observed that a detailed enquiry is required; valuation of the
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building has to be done and whether lessee shall remove the
building or shall recover the valuation of the building from
lessor etc., was also required to be considered for which
evidence was required and that the order on application
under Order XXI Rule 97 is treated as decree. Hence, the
Executing Court was of the view that a detailed enquiry has
to be made on I.A. No.2, and as such ordered the case to be
called on 04.04.2024 for evidence. Aggrieved thereby the
writ petition is filed.
SUBMISSIONS IN W.P. NO.102089/2024
4. It is stated by the learned counsel for the
petitioner that allowing the petitioners to lead evidence in
restricted terms by the Trial Court, has resulted in grave
miscarriage of justice and the impugned order is liable to be
modified to permit the petitioners to lead evidence in terms
of the memo dated 05.03.2024. It is stated that the Court
has overlooked the crucial principle of law that evidence in
an execution, resisted by an obstructionist/applicant, is
essential on the aspects that are denied by the decree
holder. The Trial Court has permitted the petitioners to lead
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evidence, but under limited terms, despite various denial of
material facts by respondents No.1 and 2. It is stated that
the Court has not considered the contents of the memo
dated 05.03.2024.
5. Learned counsel for the writ petitioners has relied
on the judgment of the Apex Court in the case of Nand Ram
(Dead) through legal representatives and Others Vs.
Jagdish Prasad (Dead) through legal representatives1,
particularly on paragraphs 30, 32 and 37 which read thus:
"30. This Court in the judgments in Bhawanji
Lakhamshi v. Himatlal Jamnadas
Dani , Badrilal v. Municipal Corpn., Indore and R.V.
Bhupal Prasad v. State of A.P. and also a judgment
in Sevoke Properties Ltd. v. W.B. State Electricity
Distribution Co. Ltd. examined the scope of Section 116
of the TP Act and held that the lease would be renewed
as a tenant holding over only if the lessor accepts the
payment of rent after the expiry of lease period. This
Court in Bhawanji Lakhamshi held as under : (SCC p.
391, para 9)
"9. The act of holding over after the expiration
of the term does not create a tenancy of any kind.
If a tenant remains in possession after the
determination of the lease, the common law rule
is that he is a tenant on sufferance. A distinction
should be drawn between a tenant continuing in
possession after the determination of the term
with the consent of the landlord and a tenant
doing so without his consent. The former is a
tenant at sufferance in English law and the latter a
tenant holding over or a tenant at will. In view of
1
(2020)9 SCC 393
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the concluding words of Section 116 of the
Transfer of Property Act, a lessee holding over is
in a better position than a tenant at will. The
assent of the landlord to the continuance of
possession after the determination of the tenancy
will create a new tenancy. What the section
contemplates is that on one side there should be
an offer of taking a new lease evidenced by the
lessee or sub-lessee remaining in possession of
the property after his term was over and on the
other side there must be a definite consent to the
continuance of possession by the landlord
expressed by acceptance of rent or otherwise."
31. XXXXX
13. In view of the settled position of law, the
possession of the appellant is as tenant at
sufferance and is liable to ejectment in due course
of law. But his possession is not legal nor lawful.
In other words, his possession of the theatre is
unlawful or litigious possession. The appellant
may remain in possession until he is ejected in
due course in execution of the decree in the suit
filed by the respondent. His possession cannot be
considered to be settled possession. He is akin to
a trespasser, though initially he had lawful entry."
32. Sevoke Properties Ltd. was a case where the
respondent continued in possession after the expiry of
lease period which ended on 24-5-1996. A suit for
possession was filed without serving a notice under
Section 106 of the TP Act. The stand of the defendant
was that he was a tenant holding over. Such argument
was not accepted and it was held that after the expiry of
lease period in terms of unregistered document of lease,
the possession of the respondent was that of a tenant at
sufferance. In view thereof, as owners, the appellants
were entitled to possession of the land in terms of
Article 65 of the Limitation Act as the possession of the
respondent was that of a tenant at sufferance.
37. The Full Bench of the Bombay High Court in a
judgment in Sidram Lachmaya v. Mallaya Lingaya
Chilaka rightly held that : (SCC OnLine Bom)
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"... it is a well-recognised canon of
construction of the Limitation Act that when there
is a specific article dealing with a specific subject,
that article is to be applied in preference to a
general and residuary article...."
The Full Bench was examining the question as to
whether the possession of the tenant is adverse to the
landlord upon the expiration of the tenancy period
merely because the tenant has not paid rent. The second
question examined was whether in a suit based upon
title by a landlord against his ex-tenant, whether Article
139 or Article 144 is applicable. In such suit filed by the
tenant, the claim was that the title of his landlord had
extinguished under Section 28 of the Limitation Act,
1908. The Court held as under : (SCC OnLine Bom)
"Now, there can be no doubt that on the
determination of the tenancy on 11-7-1925, the
plaintiff became a tenant at sufferance, if we
might make use of an English expression, or a
trespasser. Although his possession was originally
lawful, and he entered by lawful demise, at the
termination of the tenancy his possession became
wrongful and he became a trespasser. Therefore,
on the determination of the tenancy, the right
would arise in the landlord to recover possession
from him of the property and the period of
limitation would be governed by Article 139 of the
Limitation Act, 1908.
***
Our Court almost consistently has taken the
view that in a case by a landlord against a tenant
it is Article 139 that applies, the first case which
might be looked at is Kantheppa
Raddi v. Sheshappa, a decision of Sir Charles
Farran, C.J., and Candy, J. There at ILR p. 896 Sir
Charles Farran says : (SCC OnLine Bom)
'We are inclined to think that the termination
of the period of a fixed lease where nothing
further occurs, is the time from which limitation
begins to run against the landlord within the
meaning of Article 139 of the Limitation Act.'
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The expression "where nothing further occurs" is
obviously with reference to Section 116 of the Transfer
of Property Act, because it is open to the landlord on the
expiration of the tenancy to accept rent from the tenant
or otherwise assent to his continuing in possession and
thereby create a fresh lease under the provisions of that
section. But if the landlord neither accepts rent nor
otherwise assents to the continuing of the possession of
the tenant, then it is clear that the tenancy expires,
limitation begins to run against the landlord under
Article 139 and his right to obtain possession from his
tenant would be barred after the period of 12 years.
***
As we have taken the view that a suit by a landlord
against his ex-tenant is always governed by Article 139
and as we have indicated earlier in the judgment that
the question whether his possession is adverse or not
does not arise, we answer Question 2 submitted to us as
follows : Article 139. And with regard to Question 1 our
answer, with respect to the learned Judges who have
referred this question to us, is that on the view we have
now taken the question does not arise."
6. Learned counsel for the writ petitioners has also
relied on the following judgments of the Hon'ble Apex Court:
(a) Babulal Vs. Raj Kumar2. Learned counsel submits that in
this case, in an execution application under Rule 32, the
appellant, a non-party to the decree, being in possession
of the property, filed an objection against his
dispossession, and it was held by the Apex Court that
determination of the question of the right, title, or
interest of the objector required to be adjudicated under
2
(1996)3 SCC 154
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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 decree.
(b) Noorduddin Vs. K.L. Anand (Dr)3, it was held that in the
event of application under Rule 97(1) is enjoined to
adjudicate the claim and record a finding allowing or
rejecting the claim, Executing Court cannot dismiss the
application under Rule 97 on the ground that the dispute
was earlier decided when the applicant was not a party
to the earlier proceedings and no adverse findings be
recorded against him therein.
(c) Ashan Devi Vs. Phulwasi Devi4, wherein the Apex Court
has held that Rule 97 and 99 have been widely and
liberally construed, and third party resisting or
obstructing the execution of the decree can also seek
adjudication of his right under Order XXI Rule 97 in the
same way as a decree holder.
(d) Sameer Singh Vs. Abdul Rab5, Relying on this judgment,
learned counsel submits that the Apex Court has held
3
(1995) 1 SCC 242
4
(2003)12 SCC 219
5
(2015)1 SCC 379
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that an application complaining of dispossession from
immovable property can be filed by stranger also, and
pursuant to such application, the Executing Court has
the power to adjudicate upon all questions relating to
rights, title and interest in property arising between the
parties, including those of the stranger.
(e) Samir Sobhan Sanyal Vs. Tracks Trade Private Ltd.6 ,
wherein it is held that challenge of eviction under
person in possession of the property cannot be
dispossessed without due process of law. Appellant
inducted into the premises as a tenant on behalf of a
company pursuant to a lease entered into between the
company and landlady - subsequently agreement of sale
of the premises entered into b the landlady with
respondent and despite the respondent being aware of
continuance of possession and enjoyment of the
premises by appellant, suit for specific performance of
the sale agreement filed by respondent No.6 decreed for
khas possession and the decree becoming final - No
steps taken by respondent No.6 wither to have the
6
(1996)4 SCC 144
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appellant impleaded as a party defendant to the suit for
specific performance nor a decree personally against him
obtained in any other independent proceedings.
On the aspect of limitation, learned counsel for the writ
petitioners relied on the following judgment of the Hon'ble
Apex Court.
(f) Rajender Singh Vs. Santa Singh7, wherein it is held
that Section 27 - negligence or failure of the plaintiff to
act in time enables the defendant to acquire rights by
operation of law of limitation.
(g) Prem Singh and others Vs. Birbal and others8, wherein
it is held that Section 27 - Limitation Act is a statue of
repose. It ordinarily bars a remedy, but does not
extinguish a right. The only exception to the said rule is
to be found in Section 27 of the Limitation Act, 1963
which provides that at the determination of the period
prescribed thereby, limited to any person for instituting
a suit for possession of any property, his right to such
property shall be extinguished.
7
(1973)2 SCC 705
8
(2006)5 SCC 353
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Relying on the above judgments, learned counsel for the writ
petitioners submits that the Executing Court has restricted
the enquiry under Order XXI Rule 97 of CPC and he shall be
permitted to lead the evidence as per the memo dated
05.03.2024.
SUBMISSION IN C.R.P. NO.100041/2024
7. Learned counsel appearing for the petitioner
(respondent No.8 in the writ petition) submits that the order
passed by the Executing Court is contrary to the judgment of
this Court rendered in R.F.A. No.100248/2020 C/w R.F.A.
No.100301/2019, wherein this Court has held that lease was
not permanent and they were directed to deliver the
possession. It is submitted that the Executing Court is not
justified in passing the impugned order to hold enquiry by
permitting the respondents No.1 and 2 to lead their evidence
in the absence of respondents No.1 and 2 prima facie
pleading the facts to establish independent rights over the
property in question and the order under challenge is not
sustainable. It is submitted that the deceased father
Kirshnagowda H.Patil had entered into a lease agreement of
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the property in question under deceased Siddalingappa Bulla
on 06.04.1964 for an initial period of 15 years which is
stated to have been extended for further period of 30 years
by virtue of subsequent deed dated 03.04.1984 which shows
that the third parties are claiming the leasehold rights under
Siddalingappa Bulla and after his death under the judgment
debtors 7 to 10 in the execution petition. It is stated that the
Apex Court in the case of Silverline Forum Pvt. Ltd. Vs. Rajiv
Trust9 has observed that the adjudicatory process
contemplated under order XXI Rule 97(2) need not
necessarily involve a detailed enquiry or collection of
evidence and the Court can make the adjudication on
admitted facts or even on the averments made by the
resistor. As it is that case of the petitioners that the third
parties they are claiming rights under judgment debtors No.7
to 10 who are representing deceased Siddalingappa Bulla
through deceased defendants No.12 & 13 and as such they
are bound by the judgment and decree under the execution.
It is stated that the Executing Court is not justified in holding
that the valuation of the building on the property in question
9
AIR 1998 SC 1754
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has to be done and whether the lessees shall remove the
building or shall recover the valuation of the building from
lessor has to be considered by holding an enquiry. It is
submitted that the Court below has overlooked the
provisions of Section 108(h) of the Transfer of Property Act
which speaks that the lessees may even after the
determination of the lease remove, at any time, while he is
in possession of the property leased but not afterwards, all
things which is attached to the earth; provided he leaves the
property in the state in which he received it. It is also
submitted that the Court ought to have seen that
respondents No.1 and 2 cannot enforce the terms of sub-lese
as against the petitioner. It is stated that the impugned
order will have adverse impact on the petitioner's right,
wherein they are being prevented from enforcing the final
decree towards portion of the property allotted to their
share, and they are being denied to enjoy the fruits of the
decree having succeeded the long driven battle up to the
Hon'ble Supreme Court. It is stated that the order passed by
the Executing Court needs to be set aside.
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SUBMISSION IN C.R.P. No.100043/2024
8. Learned counsel for the petitioners (respondents
No.1 and 2 in the writ petition) submits that the Executing
Court is not justified in passing the impugned order to hold
enquiry by permitting the respondents No.1 and 2 to lead
their evidence in the absence of respondents No.1 and 2
prima facie pleading the facts to establish independent rights
over the property in question. Hence, the impugned order is
not sustainable. It is submitted that in RFA No.100301/2019
clubbed with R.F.A. No.100248/2020, it is was held that as
lease was not permanent, neither the appellant 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. The present respondents No.1 and 2, who are
deriving rights through defendants No.12 and 13 cannot be
said to have any independent right to maintain the
application. It is submitted that the Hon'ble Apex Court in
Silver Line Forum Pvt. Ltd. referred supra, has laid down
that the adjudicatory process contemplated in Order XXI
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Rule 97(2) of CPC need not necessarily involve a detailed
enquiry or collection of evidence and the court can make the
adjudication on admitted facts or even on the averments
made by the resistor. It is submitted that the Court went
wrong in observing that they are asserting their independent
right when it is not the case.
9. Learned counsel relied on the judgment of the
Hon'ble Apex Court in Rupchand Gupta Vs. Raghuvanshi
(Private) Ltd. And another10, particularly on paragraphs 12,
13, and 14 which read thus:
"12. Taking the last action first viz. Raghuvanshi's
omission to implead the appellant, 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 where the landlord
institutes a suit against the lessee for possession of the
land on the basis of a valid notice to quit served on the
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 sub-lease. The law allows this and so
the omission cannot be said to be an improper act.
13. Nor is it possible, in our opinion, to say that the
omission of Land and Bricks to contest the ejectment
suit was an improper act. It has not been suggested
that Land and Bricks had a good defence against the
10
AIR 1964 SC 1889
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claim for ejectment but did not take it for the mere
purpose of helping Raghuvanshi to get possession of
the land. Even if it had a good defence, we do not think
it was bound to take it. It may be that if Land and Bricks
had a defence and the defence was such which if
brought to the notice of the court would have stood in
the way of any decree being passed in favour of
Raghuvanshi there would be reason to say that the
omission to implead the sub-lessee was actuated by a
dishonest purpose and consequently was improper. It is
not necessary for us however to consider the matter
further as neither in the courts below nor before us was
any suggestion made on behalf of the appellant sub-
lessee that Land and Bricks had even a plausible
defence against Raghuvanshi's claim for ejectment.
14. We have already mentioned the fact that one of
the circumstances which the plaintiff claimed showed
collusion was that the Calcutta Thika Tenancy Act stood
in the way of the plaintiff's eviction of Land and Bricks.
It is unnecessary for us to decide whether or not the
appellant was a Thika tenant within the meaning of the
Calcutta Thika Tenancy Act, 1949. If he was, that Act
would undoubtedly have protected him against eviction
by Land and Bricks. That Act could however have no
operation in a suit brought by Raghuvanshi against
Land and Bricks. It has been held by the High Court of
Calcutta that the Thika Tenancy Act was designed to
protect the Thika tenant from eviction by his landlord
only and not against eviction from any source.
(Shamsuddin Ahmed v. Dinanath Mullick, A.F.O.D. No.
123 of 1957, D/- 13-8-1959 (Cal). The correctness of
this view has not been challenged before us. Nor is it
the appellant's case that Land and Bricks was a Thika
tenant of Raghuvanshi. Obviously, this could not be
suggested, because Land and Bricks never erected any
structure at all. (See the definition of a Thika tenant in
Section 2, clause 5 of the Calcutta Thika Tenancy Act,
1949). On the materials on the record we are satisfied
that there was no defence that Land and Bricks could
have raised for resisting Raghuvanshi's claim for
ejectment."
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He also relied on the judgment of this Court in Lakshmamma
& another Vs. Rani & Others11. Paragraphs 9 & 10 read as
under:
"9. It is a trite law that third party applicant to
maintain an application under Order 97 Rule XXI of CPC
should possess an independent title and applicant's title
should be superior to that of the decree holders. In the
present case on hand, the third party applicants are
tracing rights based on unregistered sale deeds through
the judgment debtors who have suffered preliminary
decree passed in O.S.No.265/1995 and also final decree
passed in FDP.No.28/2002. This Court in catena of
judgments has held that third party can protect his
possession only in the event he is able to establish that
he has an independent title. The third party objector
who traces his right through the judgment debtor has
no locus to intervene in the pending execution case. His
right to protect possession is by showing legitimate,
legal and better right and possession than the decree
holders. The finding recorded by the appellate Court
while entertaining the appeal that the third party
applicants have a better title than that of the decree-
holders suffers from serious perversity and the said
conclusions recorded therein are found to be patently
erroneous. Remedy under Rule 97 Order XXI of CPC is
available to a person in actual possession with
independent right over the property. Only such person
has the right to record resistance and not a party who is
tracing his right under the judgment debtor who has
suffered a decree. The execution proceeding are arising
out of the partition suit. In a partition suit, the Court
does not grant rights in favour of the joint family
members. Rights are not created pursuant to the
preliminary decree passed by a competent Court. In an
ancestral property, the joint family member has a pre-
existing right and what the Court does while
entertaining the partition suit is it formally declares
pre-existing right. Therefore, where a decree-holder in
an execution seeks possession of the property based on
11
R.S.A. No.1360/2016 C/w 1361/2016
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a preliminary decree and final decree, the third party
applicant placing reliance on the document executed by
the joint family member who has suffered a decree has
no locus to resist the execution of the decree and the
said applicant is not competent to resist under Rule 97
of Order XXI of CPC.
10. The provisions of Order 97 Rule XXI of CPC
should not be permitted to be misused especially when
the party putting forward right, title and interest in the
property is not claiming any independent right, title or
interest but is simply claiming a right through the
judgment debtor. In the light of the discussions made
supra, the reasons recorded by the appellate Court while
allowing the third party applications suffer from serious
infirmities. In the present case on hand, the third party
applicant has not acquired any right and title as they are
placing reliance on an unregistered sale deed executed
by the defendants who have suffered a preliminary
decree. Therefore, I am of the view that the third party
applicants based on an unregistered sale deed even
otherwise could not have maintained application under
Order XXI Rule 97 of CPC. The executing Court while
testing the locus of third party applicants has rightly
rejected these applications. The finding of the appellate
Court that the decree holders ought to have impleaded
the third party applicants is palpably erroneous. The
plaintiff who is asserting his legitimate right in the suit
schedule property has no obligation to implead a
stranger who is asserting right based on an unregistered
sale deed. If third party applicants feel that they are
cheated by their vendors, their remedy is to pursue
proper recourse against their vendors and their
grievance cannot be adjudicated in the execution
proceedings arising out of the preliminary decree passed
in a partition suit."
He relied on a judgment of this Court in Rohit Rajkumar
Kukreja & others Vs. G.Ramaiya Reddy and others12, in
particular paragraphs No.18 & 19 which read thus:
12
Commercial Appeal No.36/2022, dated 08.07.2022
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"18. The Executing Court has held that appellants
have failed to establish their independent right in the
Mall and therefore not entitled for any enquiry under
Order 21 Rule 101 CPC.
19. In view of Roopchand and other subsequent
decisions referred to above, sub-lessees need not be
made as parties. By the arbitral award, lessee has been
directed to hand over possession of the properties. M/s
IDEB is facing liquidation proceedings. Appellants have
entered into sub-leases after execution of second lease
deed between owners and M/s IDEB and the same has
been recorded in the sub-lease (Annexure-R5). Thus, the
finding recorded by the Executing Court that appellants
have failed to establish their independent right and
therefore, not entitled for an enquiry under Order 21
Rule 101 CPC, does not call for interference."
Learned counsel relied on order passed in the case of Rajesh
Enterprises Vs. Jakkavva B.Kampli & Others13, and in
particular on paragraphs 20 and 30, which read thus:
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, 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
13
W.P. No.100722/2024 (GM-CPC)
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who have suffered a decree up to the Supreme Court
and hence contends that no ground is made out to set
aside the order.
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 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.
Relying on these judgments, learned counsel submits that
the Court had erred in passing the impugned order
permitting the third party to lead evidence when they failed
to assert their independent right.
10. This Court has heard the learned counsel in these
three petitions, and perused the entire material on record.
11. In the final decree proceedings, the writ
petitioners in W.P. No.102089/2024 have filed an application
under Order XXI Rule 97 CPC. By the order impugned, the
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Trial Court observed that the third party are claiming rights
from the original purchaser of the leasehold rights from
Siddalingappa Bulla, and the Court felt that a detailed
enquiry is required. In addition to that, the Court has
observed that the valuation of the building has to be done
and whether the lessee shall remove the building or recover
the valuation of the building from lessor requires to be
considered and the evidence is required. The Court also
observed that an application under Order XXI Rule 97 is
treated as decree, so, a detailed enquiry has to be done on
I.A. No.2, against the very same order, the third parties,
respondent No.1 and respondent No.2 - decree holders as
well as respondent No.8/judgment debtor No.6 are before
this Court. According to the third party, the Court has
restricted the enquiry and it is the apprehension that the
Court is not going to consider the case as per the memo filed
by them. According to the decree-holders and the judgment
debtor No.6, the third party cannot maintain an application
under Order XXI Rule 97 and the Court cannot conduct any
enquiry. It is submitted by the learned counsel for the third
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party, who are the petitioners in the writ petition that, when
they have filed a review in the R.F.A., it was submitted
before the Court that the application under Order XXI Rule
97 is pending and the Court has permitted him to avail the
remedy. All these three petitions are filed before this Court
without there being any cause of action. The Executing Court
has specifically observed that any order that is passed by the
Court is treated as decree. In view of the same, the Court
has to consider and pass appropriate orders. The
apprehension of the third party that enquiry is restricted is
without any basis and the contention of the judgment debtor
No.6 and the decree holder that the Court ought not to have
entertained the application also does not deserve any merit.
In the considered opinion of this Court, this Court cannot
interfere with that order as the Court has not passed any
order as of now. Once the Court exercises jurisdiction
passes an order by considering the case of both the parties,
the cause of action would arise for the parties to assail the
same. The writ petitions and the revision petitions that are
filed before this Court are premature and as rightly pointed
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out by the Court any order passed under Order XXI Rule 97
has to be considered as decree and against that a regular
appeal lies, as such there should be a complete adjudication
and quietus to the litigation. In that view of the matter, this
Court do not find any reason to interfere with the order
passed by the Trial Court. Hence, the Court is passing the
following:
ORDER
i) Accordingly Writ petition No.102089/2024, Civil Revision Petition No.100041/2024 and Civil Revision Petition No.100043/2024 are dismissed.
ii) Considering the fact that the original suit is of the year 2009, the application under Order XXI Rule 97 shall be considered and appropriate orders shall be passed within a period of two months from the date of receipt of a copy of this order.
Sd/-
JUSTICE LALITHA KANNEGANTI KMS CT:BCK LIST NO.: 1 SL NO.: 2