Allowed

B v. Tripurasundaramma v B Selvaraj

Karnataka HC5 Oct 2023RFA/2194/2022

Case brief

AI extract

What is this about?

In this first appeal, the High Court set aside the trial court order rejecting the plaint due to pending tenancy litigation. Since a subsequent order quashed the Land Tribunal proceedings resolving the tenancy issue, the court restored the plaint for disposal on merits.

What did the court decide?

The impugned order setting aside the plaint is reversed, and the plaint is restored to the Trial Court for disposal on merits without further notice.

B v Tripurasundaramma Vs B Selvaraj — Property and Title | Karnataka HC (2023)

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NC: 2023:KHC:36247-DB RFA No. 2194 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF OCTOBER, 2023

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PRESENT

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THE HON'BLE MR JUSTICE P.S.DINESH KUMAR

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AND

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THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA REGULAR FIRST APPEAL NO. 2194 OF 2022 (DEC/POS)

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BETWEEN:

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B V TRIPURASUNDARAMMA W/O RAJU S AGED ABOUT 47 YEARS R/AT NO 68, 3^RD CROSS KALIDASA LAYOUT SRINAGAR EXTENSION BENGALURU 560 050 …APPELLANT

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(BY SRI. KESHAV R. AGNIHOTRI, ADV.)

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AND:

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B SELVARAJ S/O LATE BALAPPA @ BALASWAMY AGED ABOUT 60 YEARS

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Digitally signed by MALA K N Location: HIGH COURT OF KARNATAKA

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BALARAJ S/O LATE BALAPPA @ BALASWAMY AGED ABOUT 57 YEARS

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BOTH ARE R/AT NO.6 1^ST CROSS CHINNAPPA LAYOUT OPP. SATHYA HOSPITAL KAMMANAHALLI MAIN ROAD BENGALURU 560 084 …RESPONDENTS

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(NOTICE TO R1 HELD SUFFICIENT VIDE ORDER DATED 22.09.2023; R2 SERVED)

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THIS RFA FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF CPC., AGAINST THE ORDER DATED 27.08.2021 PASSED ON IA NO.6 IN OS No.1677/2019 ON

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NC: 2023:KHC:36247-DB RFA No. 2194 of 2022

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THE FILE OF THE IV ADDL. SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT BENGALURU, ALLOWING THE IA NO.VI FILE UNDER ORDER 7 RULE 11(d) OF CPC., FOR REJECTION OF PLAINT.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, T.G. SHIVASHANKARE GOWDA J., DELIVERED THE FOLLOWING:

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JUDGMENT

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In this appeal, the plaintiff has challenged the order dated 27.08.2021 passed in O.S.No.1677/2019 on the file of the IV Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru (the ‘Trial Court’ for short) rejecting the plaint.

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For the sake of convenience, parties shall be referred to as per their status before the Trial Court.

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Brief facts of the case are, the land in Sy.No.34/2 measuring 1 acre 5 guntas situated at Nada Gowdanahalli, Bidarahalli Hobli, Bangalore South Taluk (now Bangalore East Taluk) originally belonged to one Muninanjappa, the great grandfather of the plaintiff. After his death, his wife Muddamma inherited the said property. She died in the year 1969 leaving behind her three children by name, Munivenkatamma,

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3 - NC: 2023:KHC:36247-DB RFA No. 2194 of 2022

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Govindaraju and Thripurasundaramma. Thripurasundaramma died issueless. Munivenkatamma and Govindaraju were jointly cultivating the said land. Due to misunderstanding with Govindaraju, Munivenkatamma filed a suit in O.S.No.1592/1981 before the Additional Civil Judge, Bangalore, seeking declaration and possession of her share of property. Munivenkatamma died leaving behind her daughter Sumangala Devi. After completion of the evidence, the Court has decreed the said suit allotting 5/24^th share, which is the subject matter of this appeal.

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Govindaraju preferred R.F.A.No.59/1990 before this Court, which came to be dismissed. In the meantime, Govindaraju also died. His children by name B.G.Umashankar and B.G.Gnanamurthy have sold the said property including the share of Sumangaladevi in favour of defendant No.1 and his mother Anthoniyamma. Sumangaladevi filed the FDP No.41/2001 seeking final decree and vide order dated

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4 - NC: 2023:KHC:36247-DB RFA No. 2194 of 2022

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19.08.2009, a direction was issued to the Tahsildar for demarcation of the shares. As per the order of the Court, the Tahsildar has demarcated the share of Sumangaladevi and put her in possession of the property. Sumangaladevi continued in possession and enjoyment of the property. Defendant No.1 and his mother Anthoniyamma have filed a suit for declaration and injunction against Sumangaladevi and six others in O.S.No.805/2012 on the file of Principal City Civil Judge, Bangalore Rural District, Bangalore. By order dated 30.08.2016, the plaint came to be rejected. Sumangaladevi died leaving behind her children, who have inherited her property. Plaintiff is the daughter of Sumangaladevi. The brother and sister of plaintiff have executed the registered Release Deed in favour of the plaintiff releasing their title over the suit schedule property, thereby the plaintiff is the absolute owner and she is in possession and enjoyment of the suit property; all revenue records have been mutated in her name. In plaintiff's absence, in the month of

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5 - NC: 2023:KHC:36247-DB RFA No. 2194 of 2022

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August 2019, defendants have taken over the possession illegally on the ground that they have purchased the property on 15.04.1999. Aggrieved by the same, the plaintiff has filed the instant suit seeking declaration, possession and mandatory injunction.

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Defendants have filed I.A.No.6 under Order VII Rule 11(d) of CPC on the ground that a tenancy litigation is pending before the Land Tribunal, Hosakote in No.LRF(B)(NG.3/1227/74-75). Considering the application, the Trial Court by the impugned order has rejected the plaint directing the plaintiff to work out the remedy before the Land Tribunal. Aggrieved by the same, the plaintiff has filed this appeal on various grounds.

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Heard the arguments of Sri.Keshav R.Agnihotri, learned Counsel for the appellant/plaintiff.

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Learned Counsel for the plaintiff reiterating the

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averments as above contended that the dispute in respect of the tenancy has been resolved by order

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6 - NC: 2023:KHC:36247-DB RFA No. 2194 of 2022

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dated 29.08.2023 by this Court in W.P.No.443/2022 and therefore, the suit has to be restored to the file of Trial Court. Learned counsel also files a memo explaining the details of the tenancy issue.

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We have given our anxious consideration to

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the arguments addressed on behalf of the plaintiff and perused the records.

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The point that arises for our consideration is,

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"Whether the impugned order is perverse and calls for our interference?"

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The plaintiff has narrated the facts of suit schedule property devolving upon her mother; her brother and sister executing the Release Deed, thereby the plaintiff acquiring the title and possession over the suit schedule property. Before the Trial Court, the defendants have raised a contention that the issue regarding tenancy is pending before the Land Tribunal in No.LRF(B)(NG.3/1227/74-75) for consideration of application filed under Section 48(A) of the Karnataka

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7 - NC: 2023:KHC:36247-DB RFA No. 2194 of 2022

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Land Reforms Act in respect of 5 acres 18 gutnas of land in Sy.No.34. An order dated 04.12.2009 was passed in W.P.No.6402/2008. The petitioner has sought for review of the said order in W.P.No.443/2022 on the ground that the order in W.P.No.6402/2008 was passed in the absence of the petitioner, who is claiming the property from Muninanjappa. Plaintiff has produced the copy of the order dated 04.12.2009 passed in W.P.No.6402/2008 (LR) wherein the order dated 25.06.1996 passed by the Land Tribunal was quashed and matter was remanded to the Land Tribunal with a direction to bring the petitioner Nos.1 to 4 therein on record and after issuing notice to all the parties to re-consider the matter afresh in accordance with law. This Court by order dated 29.08.2023 in W.P.No.443/2022 (LR) has held that the order dated 25.06.1996 passed by the Land Tribunal has attained finality and for this reason, the order dated 04.12.2009 passed in W.P.No.6409/2008 has to be reviewed and thereby the

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said order was recalled and writ petition came to be dismissed. Consequently, the proceedings in No.LRF(B)(NG.3/1227/74-75) pending on the file of the Land Tribunal, Bangalore East stand quashed.

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In view of the subsequent order of this Court, the earlier order was reviewed, the order of the Land Tribunal dated 25.06.1996 was quashed, so also the entire proceedings before the Land Tribunal, thereby the tenancy issue came to be resolved. In the impugned order, the Trial Court has observed that pendency of the tenancy issue before the Land Tribunal was the reason for rejection of plaint and the plaintiff has to work out her remedy under the provisions of the Land Reforms Act.

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In view of the changed circumstances, the right of the plaintiff to prosecute the suit has revived. Therefore, the order of rejection of the plaint is unsustainable in law and this appeal merits consideration. In the result, the following;

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NC: 2023:KHC:36247-DB RFA No. 2194 of 2022

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ORDER

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(i) Appeal is allowed;

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(ii) The impugned order is set aside;

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(iii) The plaint is restored to the stage it was terminated before the Trial Court for disposal in accordance with law on merits;

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(v) Without further notice, parties shall appear before the Trial Court on 05.12.2023 ;

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(vii) Court fee shall be refunded to the plaintiff in accordance with law.

No costs.

Sd/JUDGE

Sd/JUDGE

KNM

CT:HS

List No.: 1 Sl No.: 35

B v. Tripurasundaramma v B Selvaraj

Case brief

What is this about?

What did the court decide?

B v. Tripurasundaramma v B Selvaraj

Case brief

What is this about?

What did the court decide?

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