Smt N D Poornima Vs Smt R S Sarvamangalamma

THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 15.04.2021 PASSED ON I.A. NO. 1 IN O.S.NO.158/2020 ON THE FILE OF THE SENIOR CIVIL JUDGE AND J.M.F.C., CHALLAKERE, ALLOWING THE I.A. NO.1 FILED UNDER ORDER 39 RULES 1 AND 2 READ WITH SECTION 151 OF CPC.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR

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HC-KAR

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ORAL JUDGMENT

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The appellants/defendants 1 and 2 being aggrieved by the order dated 15.04.2021 passed in O.S.No.158 of 2020 by the Senior Civil Judge and JMFC, Challakere have preferred this appeal.

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The records of this appeal reveal that, the plaintiffs in the said suit filed an interim application under Order XXXIX Rule 1 and 2, read with Section 151 of CPC seeking grant of temporary injunction restraining the defendants from alienating the suit property in any way till disposal of the suit. The plaintiffs have described the suit schedule property as Sy.No.25/3 measuring 4 acres 9 guntas situated at Nagaramgere Village in Challakere Taluk, Chitradurga District bounded by the boundaries so mentioned in the schedule.

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It is the grievance of the appellants before this Court that, the suit schedule property so mentioned in the plaint is no more in existence. Already the said landed property has been converted into non-agricultural land and

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HC-KAR

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sites have been formed. Most of the sites so formed have

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already been sold by the defendants. Sri.B.M.Siddappa, learned counsel for the appellants submit that, when the property mentioned in the plaint schedule is not at all in existence, there cannot be any continuation of the impugned order so passed by the trial Court.

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The learned counsel of the respondents 1, 2 and 4

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has filed a memo today stating that, these respondents were kept completely under dark about the status of the

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suit schedule property. The appellants are claiming that there are 72 sites formed in the suit schedule property and the suit schedule property is no more an agricultural land. According to the respondents 1, 2 and 4, the act of conversion and conversion of 72 sites are all unilateral and arbitrary acts of the appellants. It is further stated that, in the memo it is stated that, the respondents would file necessary amendment application before the trial Court to amend the description of the property as well as implead

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HC-KAR

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the so called purchasers of the sites. Therefore, it is submitted the interim order so granted be continued.

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As regards the submission of the learned counsel for the appellants that the suit schedule property is no more in existence as an agricultural land and already it is converted and 72 sites have been formed in the same, suit schedule property is no more in existence. This formation of 72 sites has been conceded by respondents 1, 2 and 4 who are plaintiffs before the trial Court. According to appellants the property so described in the schedule to the plaint is no more in existence, appellants have to take appropriate steps seeking amendment to the description as well as implead the so called purchasers of the so called sites. Therefore, unless the exercise of seeking amendment and impleading is done by the respondents, there cannot be any continuation of the temporary injunction so granted by the trial court. However, it is the apprehension of the respondents that, there is possibility of further alienation of the sites so formed in the schedule

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HC-KAR

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property. If the appellants alienate the sites so formed,

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they are subject to the Doctrine of lis pendence as well as

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subject to the result of the suit.

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With this view, this appeal is disposed of, giving

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liberty to the plaintiffs to seek necessary amendment to the plaint and impugned so called site purchasers as prayed in the memo.

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With this view, I pass the following:

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ORDER

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(i) Appeal is allowed .

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(ii) The impugned order dated 15.04.2021 passed in O.S.No.158/2020 by the Senior Civil Judge and JMFC, Challakere, is hereby set aside. If any further alienations are there, they are subject to Doctrine of lis pendence .

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