Karnataka High Court
Smt. T R Mehrunnissa vs M N Muniswamy Reddy on 8 November, 2023
Author: B M Shyam Prasad
Bench: B M Shyam Prasad
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WP No. 14037 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE B M SHYAM PRASAD
WRIT PETITION NO. 14037 OF 2021 (HRC)
BETWEEN:
SMT. T R MEHRUNNISSA
T R MEHRUNNISSA
D/O LATE ABDUL RAZACK
AGED ABOUT 79 YEARS,
R/AT BABOO BAZAAR
2ND DIVISION, CHINTAMANI-563125.
...PETITIONER
(BY SRI. V. LAKSHMINARAYANA., SENIOR ADVOCATE
FOR SRI. S.Z. BAREED, ADVOCATE FOR LRS)
AND:
1. M N MUNISWAMY REDDY
S/O M NARAYANA REDDY
AGED ABOUT 55 YEARS,
R/AT MALAPALLI
CHINTAMANI TOWN-563125.
Digitally
signed by
NARASIMHA 1(A) TARA @ SHAMEEN TARA
MURTHY W/O LATE ABDUL HAMEED
VANAMALA
Location:
AGED ABOUT 59 YEARS
HIGH R/AT WARD NO. 1A BAMBOO BAZAR
COURT OF CHINTRAMANI TOWN
KARNATAKA
CHIKKABALLAPURA DIST 563 125.
2. C S SRINATHA REDDY
DEAD BY HIS LRS
A. D R MANJULA
W/O LATE C S SRINATHAREDDY
AGED ABOUT 45 YEARS,
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WP No. 14037 of 2021
B. KUMARI HARSHITA
D/O LATE C S SRINATHAREDDY
AGED ABOUT 21 YEARS,
C. DHANUSH REDDY
S/O LATE C S SRINATHAREDDY
AGED ABOUT 18 YEARS,
ALL THE LRS OF RESPONDENT NO.2
R/AT BEHING CMC OFFICE
NR EXTENSION
CHINTAMANI - 563125.
3. K L VENKATANARAYANA GUPTA
S/O LATE LAKSHMINARASIMHA SETTY
AGED ABOUT 66 YEARS
R/AT N R EXTENSION
CHINTAMANI -563125.
4. JAGADISH
S/O M NARAYANA REDDY
AGED ABOUT 49 YEARS,
R/AT MALAPPALLI EXTENSION
CHINTAMANI-563125.
...RESPONDENTS
(BY SRI. VINAYAKA B VISHNU., ADVOCATE FOR R1
AND R3;
R2(A) TO (C) AND R4 ARE SERVED)
THIS WP IS FILED UNDER ARTICLE 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO-QUASH
THE ORDER DATED 08.03.2021, PASSED BY THE
LEARNED PRL. CIVIL JUDGE AND JMFC, ON AN
APPLICATION UNDER ORDER 21 RULE 35 OF CPC, IN
EX.PETITION NO.13/2015 WHICH IS AT ANNEXURE-T.
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WP No. 14037 of 2021
THIS PETITION, COMING ON FOR FINAL DISPOSAL,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner, who is one of the respondents in HRC No.7/2008 on the file of the Principal Civil Judge and JMFC, Chintamani, has filed this petition impugning the proceedings in Execution No.13/2015 and certain orders in such execution proceedings. The petitioner in addition has called in question the order dated 09.04.2015 in HRRP No.1/2014 on the file of the II Additional District and Sessions Judge, Chikkaballapura sitting at Chintamani [for short, 'the District Court']. The petition has a chequered history and there must be brief narration of facts.
2. It is undisputed that the respondents have purchased two portions of a property in Sy.No.197/2 of Nekkundi village, Chintamani Taluk under the Sale Deed dated 27.02.2004. The portion described as 148 x 98 feet bearing Municipal No.927/815 -4- NC: 2023:KHC:39928 WP No. 14037 of 2021 [1027/914/1116] which is diverted from agricultural to non-agricultural purposes with a movie theatre be built thereon is described in Schedule 'A' to the Sale Deed and other extent described as 98 x 120 feet [about 11 guntas] which is the agricultural land is described as Schedule 'B' in this deed. The respondents have filed the suit in O.S.No.21/2007 for declaration of title to the property which is described as Schedule 'B' in the said Sale Deed, and during the pendency of this petition, they have filed the subject proceedings under the Karnataka Rent Act, 2019 [for short, 'the Rent Act'] in HRC No.7/2008 for the petitioner's eviction from the portion that is described as measuring 10 x 30 feet.
3. The suit in O.S.No.21/2007, after the decision in the first appeal in RA No.119/2013, has culminated with the disposal of RSA No.1315/2020 on 19.07.2021 with confirmation of the respondents' title to such property [described as schedule 'B' in the -5- NC: 2023:KHC:39928 WP No. 14037 of 2021 Sale Deed dated 27.02.2004]. The eviction proceedings in HRC No.7/2008 is also allowed by the order dated 13.08.2014. The petitioner, who is one of the respondents in these proceedings, is placed ex parte, but she has later filed her statement and contested the petition. The statement of objection is not considered on the ground that it is belatedly filed. The petitioner has challenged this order dated 13.08.2014 in HRC No.7/2008 in HRRP No.1/2014 which is dismissed on 09.04.2015 confirming the order of eviction against the petitioner and others.
4. These orders in HRC proceedings are called in question before this Court in W.P.No.18224/2015 [GM-RES], and this Court has disposed of the writ petition on 24.06.2019 observing that the respondents must not precipitate the proceedings in Execution No.13/2015, which is filed for enforcement of eviction, until the disposal of the appeal in RA No.119/2013 with the further -6- NC: 2023:KHC:39928 WP No. 14037 of 2021 observation that the interim order granted in the writ petition shall continue to the petitioner's advantage until the disposal of the appeal in RA No.119/2013. During the pendency of the subsequent second appeal in RSA No.1315/2020 before this Court, the executing Court by the impugned order has issued delivery warrant observing that the HRC proceedings are closed, the appeal in RA No.119/2013 is disposed of and no further appeal is pending.
5. The petitioner after disposal of the appeal in RSA No.1315/2020 on 19.07.2021 has filed an application in such appeal. The petitioner has filed this application for stay of the judgment and decree in O.S.No.21/2007 contending that the proceedings in this suit relate to agricultural portion [described as Schedule 'B' in the Sale Deed] and the property [which is the subject matter of the execution proceedings for enforcement of the eviction order] is also part of this agricultural land and is not part of the property -7- NC: 2023:KHC:39928 WP No. 14037 of 2021 where a movie theatre is constructed [described as Schedule 'A' in the Sale Deed]. This Court has disposed of this application on 06.08.2021 observing thus:
"Under the present application stay of the operation of decree in O.S.No.21/2007 is sought. In the circumstances by this time it is clear that petition for eviction was filed in HRC No.7/2008 and that came to be allowed and thereafter HRRP No.1/2014 was filed before the District Court by the defendant in this case and said petition also came to be dismissed and direction of this court in writ petition is as stated above and that the benefit is available till disposal of R.A.No.119/2013. Now that said R.A.No.119/2013 came to be dismissed and thereafter RSA No.1315/2020 was filed regard being had to the fact that the appellant/defendant seeks stay of the decree in O.S.No.21/2007.
It was further submitted that execution petition is filed in connection with the order passed in HRRP No.1/2014 and thereafter writ petition was filed before this court. Learned counsel further submits that by describing wrong schedule the plaintiff is pursuing with the execution. Learned counsel -8- NC: 2023:KHC:39928 WP No. 14037 of 2021 for respondent submits that the schedule property in HRC petition refers to a portion of the total property.
In the circumstances I am of the
considered view if at all there is any
discrepancy in the schedule it becomes a matter that has to be stated before the trial court in Execution petition and not before this court."
6. It is observed that after this order dated 06.08.2021, the petitioner has filed an application [IA No.9] for appointment of a Court Commissioner and this application stands rejected by the impugned order dated 04.10.2023. The copies of both these orders are placed on record by Sri.V.Lakshminarayana, the learned Senior Counsel for the petitioner.
7. Sri V.Lakshminarayana submits that the petitioner's effort right through is to persuade the courts to accept that the respondents, being aware of the fact that no proceedings would lie under the Rent Act in respect of an agricultural land or any portion -9- NC: 2023:KHC:39928 WP No. 14037 of 2021 thereof, have described a portion of the agriculture land that is in the petitioner's occupation referring to the boundaries of the agricultural land [described as Schedule 'B' property in the Sale Deed] but giving the municipal numbers of the non-agricultural land [schedule 'A' property].
8. Sri V. Lakshminarayana submits that the respondents have devised this in an effort to sustain the petition for ejectment to recover possession of a portion of the agricultural land in the light of the fact that the suit in O.S.No.21/2007 is filed for declaration and perpetual injunction without a prayer for possession, and that if these two aspects are considered, which would be open for consideration in the execution proceedings in the light of the provisions of Section 47 of the Code of Civil Procedure, 1908, the decree for eviction cannot be enforced. The learned Senior Counsel submits that in
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NC: 2023:KHC:39928 WP No. 14037 of 2021 which event, the entire execution proceedings must fail.
9. Sri Vinayaka B. Vishnu, the learned counsel for the respondents, submits that this defense is an umpteenth effort by the petitioner, who has failed in the suit for declaration of title and in the eviction proceedings, to delay and defeat the eviction decree that is confirmed with the disposal of HRRP No.1/2014 and the writ petition in W.P.No.18224/2015. Sri. Vinayaka B. Vishnu canvasses that the records would bear out that this defense is being taken up for the first time and it is not part of the defense either in the earlier proceedings under the Rent Act or in the original suit in O.S.No.21/2007 or in any later proceedings.
10. These rival submissions are considered. This Court must observe that this defense viz. that the respondents have given the boundaries of the agricultural land and the municipal number of the
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NC: 2023:KHC:39928 WP No. 14037 of 2021 non-agricultural land to create a sheen of maintainability is put forward when an application [IA No.1/2021] is filed in RSA No.1315/2020. This application is filed after disposal of the appeal on 19.07.2021, and this application stands disposed of as aforesaid observing that if there is any discrepancy in the schedule, it must be tested in the pending execution proceedings and not in the appeal proceedings.
11. This observation, it is now contended, is a liberty to the petitioner to raise such ground, but that has not been considered. It is not seen from the impugned order dated 04.10.2023 that this aspect has been considered and further the liberty, as aforesaid, is during the pendency of this petition. This petition is filed calling in question the order for delivery of warrant, and this Court is of the considered view that there must be complete adjudication in the light of the liberty as aforesaid.
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NC: 2023:KHC:39928 WP No. 14037 of 2021 The executing Court must apply its mind with due opportunity to the petitioner and the respondents and examine whether it would be open to the petitioner to raise such defense and if it can be raised, whether it is an objection that can be sustained.
12. Further, this Court is of the considered opinion that unless there is adjudication on these aspects in the light of the observation as aforesaid on 06.08.2021 in RSA No.1315/2020, there will not be complete adjudication and coercive measures must be deferred until then. However, given the chequered history, the executing Court must be called upon to decide the questions as aforesaid within a definite timeline putting both the petitioner and the respondents on the onus of co-operating with the executing Court in such disposal observing that if they do not cooperate, it shall be to their detriment as
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NC: 2023:KHC:39928 WP No. 14037 of 2021 the necessary consequences in law must ensue. In the light of the afore, the following:
ORDER
(a) The petition stands disposed of calling upon the executing Court to defer issuance of delivery warrant until the questions as observed above are considered.
(b) The executing Court shall, without seeking any extension unless it is extremely warranted, decide on the petitioner's objection before 29.02.2024 and the executing Court, if necessary, shall consider listing of the execution proceedings on a daily basis.
(c) The executing Court shall
notwithstanding its order dated
04.10.2023 consider the questions
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WP No. 14037 of 2021
enabled by this Court for complete
adjudication inasmuch as the same is considered while passing this impugned order.
(d) It would be needless to observe that the petitioner and the respondents will be at liberty, but within such time as may be allowed by the executing Court, to file an affidavit and counter affidavit for the respective pleadings on the question as observed.
Sd/-
JUDGE SA ct:sr