Allowed

Sri Krishnaiah v. Sri M N Narayanaswamy

Karnataka HC29 Aug 2024WP/9616/2024

Case brief

AI extract

What is this about?

Defendant in a partition suit challenged rejection of his application for permission to execute a lease deed with Indian Oil Corporation over 15 guntas of land, which had been the subject of a temporary injunction set aside on appeal. The High Court held the trial Court was bound by the appellate Court's findings and quashed the impugned order, allowing the application.

What did the court decide?

Impugned order dated 29.01.2024 quashed; I.A.No.18 allowed permitting lease deed execution only in respect of 15 guntas of land, subject to final outcome of the suit.

Sri Krishnaiah Vs Sri M N Narayanaswamy — Partition | Karnataka HC (2024)

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NC: 2024:KHC:34756 WP No. 9616 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 29^TH DAY OF AUGUST, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R DEVDAS WRIT PETITION NO. 9616 OF 2024 (GM-CPC)

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BETWEEN:

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SRI. KRISHNAIAH, S/O LATE KURATI NARAYANAPPA, AGED ABOUT 55 YEARS, R/AT VISWANAGARA VILLAGE (KYALANUR CROSS), KURUGAL POST, VEMGAL HOBLI, KOLAR TALUK.

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…PETITIONER

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(BY SRI.D.R.RAVISHANKAR, SENIOR COUNSEL FOR SRI.VENUGOPAL M.S., ADVOCATE)

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AND:

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Digitally signed 1. SRI. M.N.NARAYANASWAMY, by JUANITA S/O KURATI NARAYANAPPA, THEJESWINI AGED 67 YEARS, Location: HIGH COURT OF R/AT MADIVALA VILLAGE, KARNATAKA KURUGAL POST, VEMGAL HOBLI, KOLAR TALUK.

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SRI. MUNIBYRAPPA, S/O LATE KURATI NARAYANAPPA, AGED ABOUT 55 YEARS, R/AT MINDAHALLI VILLAGE BHAVANAHALLI POST,

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KASABA HOBLI, MALUR TALUK.

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SMT. RAJAMMA, W/O LATE HANUMAPPA, D/O LATE KURATI NARAYANAPPA, AGED ABOUT 72 YEARS, R/AT KENCHARLAHALLI VILLAGE, (ANTHARAGANGE HILLS), KASABA HOBLI, KOLAR TALUK.

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SMT. BACHAMMA, W/O PAPANNA, AGED ABOUT 82 YEARS, R/AT KANNURAHALLI VILLAGE, KASABA HOBLI, HOSAKOTE TALUK, BANGALORE RURAL DISTRICT.

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SMT. S.P. RENUKA, W/O N. GANGI REDDY, AGED ABOUT 47 YEARS, R/AT CHIKKANDANAHALLI VILLAGE, NANDAGUDI HOBLI, NELAVAGILU POST, HOSAKOTE TALUK, BANGALORE RURAL DISTRICT.

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SRI. H.M. RAVI, S/O MARANNA @ MARAPPA, AGED ABOUT 48 YEARS, R/AT NO.271, 6^TH CROSS, K.E.B.LAYOUT, V.V. BADAVANE, HOSAKOTE TOWN, BANGALORE RURAL DISTRICT.

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3 - NC: 2024:KHC:34756 WP No. 9616 of 2024

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SMT. M.N. SHAHANAJ, W/O NOORULLA KHAN, AGED ABOUT 48 YEARS, R/AT MADIVALA VILLAGE, KURUGAL POST, VEMGAL HOBLI, KOLAR TALUK.

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SRI. C. RAJU, S/O CHIKKANNA, AGED ABOUT 56 YEARS, R/AT K. MALLASANDRA VILLAGE, KASABA HOBLI, HOSAKOTE TALUK.

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SMT. RATHNAMMA, W/O MUNIBYRAPPA, AGED ABOUT 53 YEARS, RESIDING AT MINDAHALLI VILLAGE, BHAVANAHALLI POST, KASABA HOBLI, MALUR TALUK, KOLAR DISTRICT.

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SRI. KESHAVA MURTHY, S/O MUNIBYRAPPA, AGED ABOUT 35 YEARS, RESIDING AT MINDAHALLI VILLAGE, BHAVANAHALLI POST, KASABA HOBLI, MALUR TALUK, KOLAR DISTRICT.

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SMT. NIVEDITHA, D/O MUNIBYRAPPA, AGED ABOUT 31 YEARS, RESIDING AT MINDAHALLI VILLAGE,

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BHAVANAHALLI POST, KASABA HOBLI, MALUR TALUK, KOLAR DISTRICT.

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…RESPONDENTS

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(BY SRI. HARISH N.R., ADVOCATE FOR R1; NOTICE R2 TO R11 IS DISPENSED WITH VIDE ORDER DATED 02.04.2024)

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THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDERS PASSES ON I.A. 18 BY THE LEARNED 3RD ADDITIONAL SENIOR CIVIL JUDGE IN O.S. 143/17 AT KOLAR DATED 29.01.2024 IN THE INTEREST OF JUSTICE AND EQUITY VIDE ANNEXURE –M AND ETC.,

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE R DEVDAS

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ORAL ORDER

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The petitioner, who is defendant No.1 in O.S.No.143/2017, is before this Court aggrieved of the impugned order dated 29.01.2024 passed by the learned III Additional Senior Civil Judge at Kolar on I.A.No.18. Learned Senior Counsel Sri.D.R.Ravishankar, appearing for the petitioner submits that respondent No.1/plaintiff filed the suit seeking partition and separate possession of the suit schedule

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properties while claiming that the suit schedule properties are properties belonging to the joint family and along with the plaint an application for an order of temporary injunction was also filed by the plaintiff. The application was allowed on 03.06.2017, restraining the petitioner/defendant No.8 from putting up construction of a petrol bunk in the suit item No.1 to an extent of 15 guntas out of 3 acres and 34 guntas pending disposal of the suit. However, in an appeal filed by the petitioner/defendant No.8 before the regular appellate Court in M.A.No.8/2017, the appellate Court by order dated 03.11.2018, allowed the appeal, set aside the orders passed by the trial Court. Learned Senior Counsel submits that the plaintiff accepted the orders passed by this Appellate Court. It was pointed out from the orders passed by the Appellate Court that the Court has taken note of the registered partition deed by virtue of which the property in question has fallen to the share of defendant No.8. Further, it was also held that even if defendant No.8 is permitted to proceed with the construction and the plaintiff succeeds in the suit, the plaintiff can be compensated by way of money.

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NC: 2024:KHC:34756 WP No. 9616 of 2024

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However, the petitioner/defendant No.8 was

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constrained to file another application in I.A.No.18 to seek specific permission of the Court to execute a lease deed in favour of the Indian Oil Corporation Limited. Accordingly, the said application was filed. However, the trial Court has committed a patent error in rejecting the application while making certain observations which would militate against the orders passed by the Regular Appellate Court.

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Learned Senior Counsel would further draw the

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attention of this Court to Section 52 of the Transfer of property Act, 1882 and submit that the provision would enable the party to seek necessary directions at the hands of the Court, which would enable a party to deal with the suit schedule property. The attention of this Court was also drawn to a judgment of the Hon'ble Supreme Court in the case of Hope Plantations

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Limited VS. Taluk Land Board, Peermade and Another

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reported in (1999) 5 SCC 590 , wherein it was held that insofar as issue estoppel is concerned, when on consideration of the issue, a decision is taken by the Court, parties shall be bound by the said decision and estopped from questioning it.

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They cannot litigate again on the same cause of action nor can they litigate any issue which was considered in the earlier litigation. Learned Senior Counsel would therefore submit that once the Regular Appellate Court has decided on the said issue in respect of the 15 guntas of land and the restraint order sought by the plaintiff was rejected, the trial Court was bound to take the same into consideration.

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However, learned counsel for contesting respondent No.1 seeks to contend that the trial Court has noticed the fact that in the application I.A. No. 18, defendant No.1 has not made it clear that the permission was insofar as 15 guntas of land only.

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At this juncture, learned Senior Counsel would submit that this Court can record a submission made on behalf of the petitioner/defendant No.8, that the application was filed only insofar as 15 guntas of land, which was the subject matter of the application filed by the plaintiff in I.A.No.2 and the subject matter of the appeal in M.A.No.8/2017.

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Having heard the learned Senior Counsel, learned counsel for respondent No.1 who is contesting

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respondent/plaintiff and on perusing the petition papers, this Court is of the considered opinion that merely because, the application filed at the hands of the petitioner/defendant No.1 in I.A.No. 18 did not specify the extent of land, namely 15 guntas, the trial Court could not have passed the impugned order rejecting the application. The trial Court as well as the plaintiff and the parties to the suit are bound by the earlier order passed by the Regular Appellate Court in M.A.No.8/2017. Having regard to the express provision contained in Section 52 of the Transfer of Property Tax, 1882 and findings of the Regular Appellate Court in M.A.No.8/2017, this Court is of the considered opinion that the application in I.A.No.18 filed by the petitioner/defendant No.1 should have been allowed by the trial Court.

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Accordingly, the writ petition is allowed. The impugned order dated 29.01.2024 passed on I.A.No.19 in O.S.No. 143/2017 is hereby quashed and set aside. Consequently, the I.A.No.18 is allowed while clarifying that the permission is granted only in respect of 15 guntas of land, which was the subject matter of the application filed by the

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NC: 2024:KHC:34756 WP No. 9616 of 2024

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plaintiff in I.A.No.2 and the subject matter of the order passed in M.A.No.8/2017. However, it is also necessary to state that the permission will be subject to the final outcome of the suit.

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Ordered accordingly

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Sd/(R DEVDAS) JUDGE

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List No.: 1 Sl No.: 2

Sri Krishnaiah v. Sri M N Narayanaswamy

Case brief

What is this about?

What did the court decide?

Sri Krishnaiah v. Sri M N Narayanaswamy

Case brief

What is this about?

What did the court decide?

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