Disposed

G Devika Bai W/O G Subba Rao v. the Gram Panchayath Karyalaya

Karnataka HC27 Aug 2020CRP/100059/2016

Case brief

AI extract

What is this about?

The High Court of Karnataka disposed of a civil revision petition filed against an order closing an execution petition. The court held that the petitioner retains the right to protect her decree rights against future obstruction if any arises, without prejudice to the impugned order.

What did the court decide?

The civil revision petition is disposed of without any specific order granting or refusing the petition's relief.

G Devika Bai W/O G Subba Rao Vs the Gram Panchayath… — Property and Title | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 27^TH DAY OF AUGUST 2020

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BEFORE

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THE HON’BLE MR. JUSTICE B.M. SHYAM PRASAD

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CIVIL REVISION PETITION NO.100059/2016

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BETWEEN

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SMT.G DEVIKA BAI W/O G SUBBA RAO AGE: 51 YEARS, OCC: HOUSEWIFE R/O: KRISHNA NAGAR VILLAGE, TQ: SANDUR, DIST: BALLARI

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... PETITIONER

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(BY SRI.HANUMANTHAREDDY SAHUKAR, ADVOCATE)

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AND

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THE GRAM PANCHAYATH KARYALAYA BY ITS SECRETARY, KRISHNA NAGAR VILLAGE, TQ: SANDUR, DIST: BALLARI

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THE GRAM PANCHAYATH KARYALAYA BY ITS PRESIDENT, KRISHNA NAGAR VILLAGE, TQ: SANDUR, DIST: BALLARI

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SRI.GUKKA FAKRU SAB S/O BAVA SAB AGE: 58 YEARS, OCC: AGRICULTURIST, R/O: KRISHNA NAGAR VILLAGE, TQ: SANDUR, DIST: BALLARI

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... RESPONDENTS

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(RESPONDENTS NO.1 & 2 ARE SERVED, BY SRI.PRAKASH GOUDA N HATTI, ADVOCATE AND SRI.METI RAJESHWARI, ADVOCATE FOR R3)

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THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF THE CODE OF CIVIL PROCEDURE AGAINST THE ORDER DATED:29.01.2016 PASSED IN EXECUTION CASE NO.09/2013 ON THE FILE OF THE CIVIL JUDGE AND J.M.F.C., AT SANDUR, DISMISSING THE EXECUTION PETITION.

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THIS CIVIL REVISION PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The learned counsel for the petitioner and the

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learned counsel for the third respondent are heard. The impugned order dated 29.01.2016 in Execution Case No.9/2013 on the file of the Civil Judge and JMFC at Sandur and the judgment dated 26.06.2004 in O.S.No.27/2003 on the file of the Civil Judge and JMFC, Sandur and other annexures to the petition are perused.

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The petitioner and the third respondent are owners of neighboring properties and they have been at loggerheads in Courts for over three decades. The petitioner, owner of the property bearing Old Door No.174-A and New Door No.191, Krishna Nagar village, Sandur Taluk and District, has filed suit in O.S.No.27/2003 for temporary injunction against the respondents herein, and prior to this suit the petitioner

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has filed suit in O.S.No.47/1989 against the third respondent for declaration of ownership and injunction for removal of drainage pipes put up in her property and closure of the door opened by the third respondent into her property.

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The suit in O.S.No.47/1989 is decreed and the decree is put into execution in Execution Case No.31/1992.¹ In this execution petition, a Court Commissioner is appointed under whose superintendence cement pipes in the petitioner’s property are removed as well as the door opened by the third respondent into the petitioner’s property is closed.

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However, the dispute between the petitioner and the third respondent has not reached a quietus, and the petitioner has filed subsequent suit in

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1The Learned counsel for the petitioner submits that the actual execution case number is Execution Case No.16/2003 but has been wrongly referred to as Execution Case No.31/1992 in the judgment in O.S.No.27/2003.

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O.S.No.27/2003 asserting that the temporary

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construction in the property has collapsed because of heavy rains and she has the benefit of plant sanction by the local authority for construction. Nevertheless, the third respondent is objecting to the construction. This suit in O.S.No.27/2003 is decreed on 26.06.2004. The third respondent has not challenged this judgment and decree dated 26.06.2004.

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The third respondent continuing the dispute, has filed a suit for permanent injunction in O.S.No.106/2009 in respect of a portion of the property. The petitioner has contested this suit asserting that the portion described by the third respondent is her property and that this property is subject matter of two decrees referred to above. The suit in O.S.No.106/2009 is dismissed, and the dismissal of the suit is confirmed in appeal filed by the third respondent in R.A.No.62/2014.

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The petitioner has filed Execution Case

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No.9/2013 stating that the third respondent despite the decree in favour of the petitioner in O.S.No.27/2003 and O.S.No.106/2009 is obstructing to the construction by the petitioner and therefore the third respondent is in disobedience of the decree. The petitioner has examined herself and her husband in support of the assertions in the execution petition, and the third respondent has examined himself as RW.1. The third respondent has specifically contended that he was not obstructing the petitioner and the assertion that he was obstructing is totally untenable.

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The Executing Court by the impugned order

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dated 29.01.2016 has closed the execution petition in Execution Case No.9/2013 concluding inter alia that the petitioner had failed to establish any interference by the third respondent. The Executing Court has concluded that there cannot be any reasonable

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inference of obstruction by the third respondent in view of the fact that the petitioner, though contends that a police complaint is filed, has not placed any record in support thereof.

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The learned counsel for the petitioner

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arguing in support of the petition submits that the petitioner was constrained to file the execution petition in Execution Case No.9/2013 only because of the continued obstruction and the consequential disobedience with the decree. In fact, the petitioner has lodged information in this regard with the jurisdictional

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police, and it is only because of lack of proper instructions, necessary acknowledgment is not secured and produced before the Executing Court. The petitioner is even today unable to proceed with any construction in the subject property despite the benefit of a decree for permanent injunction which has remained unchallenged. The learned counsel for the

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third respondent, on the other hand, submits that the allegation of obstruction is unfounded and execution petition is initiated only to harass the third respondent.

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It emerges from the facts and circumstances of the case, which are largely undisputed, that the petitioner, who is able to secure the property with the closure of the door opened by the third respondent and removal of the pipes in the property pursuant to the Commissioner’s warrant issued by the Court in Execution Case No.16/2003, is complaining about obstruction despite a subsequent decree for permanent injunction in O.S.No.27/2003. The third respondent’s contention is that he has not obstructed and in fact the learned counsel for the third respondent reiterates the defence that the third respondent has not obstructed.

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This Court is of the considered opinion that

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it would be suffice for the purposes of disposal of this petition to observe that the petitioner would be entitled

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to protect her rights under the decree in any manner known to law, if there were to be any obstruction by the third respondent in the future without being prejudiced by the impugned order.

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The civil revision petition is accordingly disposed of.

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Sd/JUDGE

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G Devika Bai W/O G Subba Rao v. the Gram Panchayath Karyalaya

Case brief

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G Devika Bai W/O G Subba Rao v. the Gram Panchayath Karyalaya

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