Petitioner challenged an order confirming a temporary injunction in a partition suit, arguing the lower courts erred in relying on a partition deed he was not party to. The High Court quashed the order and directed status quo.
Impugned order modified; directions to maintain status quo regarding disputed lands until final decision in the suit.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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BEFORE
THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NO. 552 OF 2021 (GM-CPC)
BETWEEN:
SRI T.Y. GOVINDAPPA S/O LATE YELLAPPA AGED ABOUT 72 YEARS R/O IMMADIHALLI VILLAGE WHITEFIELD POST K.R.PURAM HOBLI BENGALURU EAST TALUK BENGALURU-560066.
…PETITIONER
(BY SRI. VIJAYA SHEKARA GOWDA.V, ADV.)
AND:
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SL.NO.1 TO 11 ARE R/O IMMADIHALLI VILLAGE K.R.PURAM HOBLI BENGALURU EAST TALUK BENGALURU-560066.
SRI. MUNIKRISHNA SINCE DEAD BY LRS
SL.NO.12 AND13 ARE R/AT NO.858, 4TH CROSS CHOWDESWARI EXTENSION MARATHHALLI BENGALURU-560037.
SRI. THAMBANNA SINCE DEAD BY LRS
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R/O IMMADIHALLI VILLAGE NEAR MILK DAIRY BENGALURU-560066.
SL.NO.18 TO 22 ARE R/O 7TH CROSS NEAR TULASI THEATER MARATHALLI MAIN ROAD MARATHALLI BENGALURU-560037.
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SMT. AYYAMMA @ MUNIYAMMA SINCE DEAD BY LRS
SRI. THAMBIYANNA SINCE DEAD BY LRS
SRI. MUNIKRISHNA S/O LATE THAMBIYANNA SINCE DEAD BY LRS
SL.NO.23 TO 29 ARE R/O IMMADIHALLI VILLAGE K.R.PURAM HOBLI BENGALURU EAST TALUK BENGALURU-560066.
(BY SRI. S.K. ACHARYA, ADV. FOR SRI. S. SRIKANTH, ADV. FOR C/R27)
…RESPONDENTS
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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD.26.03.2019 PASSED BY THE LEARNED 1ST ADDITIONAL SENIOR CIVIL JUDGE BANGALORE RURAL DISTRICT BANGALORE ON IA NO.13 FILED UNDER ORDER 39 RULE 1(A) READ WITH SECTION 151 OF CPC IN O.S.NO.1434/2015 FILED BY THE PETITIONER/DEFENDANT NO.7 MARKED AT ANNEXURE-A AND THE ORDER OF CONFIRMATION OF THE ABOVE SAID ORDER BY DISMISSING THE MISC APPEAL FILED BY THE PETITIONER IN ORDERS DTD.18.12.2020 PASSED BY THE 7TH ADDITIONAL DISTRICT AND SESSIONS JUDGE BANGALORE RURAL DISTRICT BANGALORE IN M.A.NO.17/2019 FILED UNDER ORDER 43 RULE 1 (R) OF CPC AS MARKED AT ANNEXURE-B AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioner being the seventh defendant in a partition suit in O.S.No.1434/2015, is knocking at the doors of writ court assailing the order dated 18.12.2020, a copy whereof is at Annexure-B whereby, learned VII Addl. District Judge, Bangalore Rural District, having rejected his appeal in M.A.No.17/2019, has affirmed the order of temporary injunction granted by the learned trial Judge on 26.3.2019.
through his counsel resist the writ petition making vehement submission in justification of the impugned order and the reasons on which it has been predicated; notice to other respondents is dispensed with.
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(a) There are three lands of very same village, viz., bearing Sy.Nos.39, 104 and 105; all the lands were subject matter of grant of occupancy; the occupancy in respect of Sy.No.39 was granted in favour of the father of the petitioner herein anterior to the grant of occupancy in respect of other two lands in favour of the predecessor in title of contesting respondent herein; the occupancy order comprising lands in Sy.Nos.104 & 105 specifically mentions about grant of occupancy in respect of Sy.No.39 in favour of father of the petitioner herein and therefore, the application filed in form No.7 comprising all the three lands was partly favored confining the grant to the said other two lands excluding the land granted to the father of the petitioner.
(b) That being the position, the Courts below are not justified in placing much reliance on the partition dated 10.08.2006 to which petitioner and other sons of Yellappa are not parties; it has been settled position of law that a deed of partition binds inter parte and not non-parties subject to all just exceptions into which the argued case of the respondents does not fit; this important aspect having not been properly considered by both the Courts below there is an error apparent on the face of the record warranting indulgence of this Court.
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(c) There is some force in the vehement contention of learned counsel for the caveator-respondents that ordinarily a writ court does not grant indulgence in the matter when two courts have projected a concurrent view in denying relief to the litigant; but there are several exceptions recognized to this general norm evolved by the judiciary itself; where the impugned orders bear an error glaring on record, it is open to an aggrieved litigant to invoke the writ jurisdiction for setting the same right; here in a case where both the courts have wrongly construed the partition deed in question in favour of respondents and to the prejudice of petitioner who was not party thereto; the contention that the legal status of contesting respondents and their mother has been conceded to from the side of the petitioner in the revenue proceedings, does not come to their rescue; such disputes are to be decided after a fullfledged trial of a suit.
In the above circumstances, this writ petition succeeds in part; the impugned order having been modified, both the parties are directed to maintain status quo as to the land in question till after & subject to decision in the suit; the observations made in above are being confined to the disposal of the writ petition shall not influence dispose off the decision making in the suit.
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The learned Judge of the Court below is requested to try and
dispose off the suit within a period of one year, all the contentions of the parties having been kept open.
Sd/JUDGE
ssb
3 issues framed by the court
Whether the lower courts committed an error apparent on the face of the record by relying on a partition deed to which the petitioner was not a party.
Whether the writ court can set aside orders denying relief where there is a glaring error in the construction of a partition deed affecting non-parties.
What relief, if any, the petitioner is entitled to regarding the status quo of the disputed lands pending the suit.
4 provisions across 2 enactments
Sri T.Y. Govindappa
Smt. Muniyamma
Krishna S. Dixit
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
