Sri Pamod H v Vs Smt B.A. Rathnamma

SRI.H.V.PRUTHVI, S/O LATE J.R. VENKATARAMU, AGED ABOUT 52 YEARS, R/AT COFFEE DAY SQUARE, 3^RD FLOOR, SICKLE DIVISION, VITTAL MALLYA ROAD. BANGALORE - 560 001.

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SRI. H.V. PREETHAM, S/O LATE J.R.VENKATARAMU, AGED ABOUT 50 YEARS,

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HC-KAR

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R/AT NO.332, NORTHERN EXTENSION, ARALIKATTE ROAD, HASSAN - 573 201.

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SMT BHUMIKA DEV K, W/O LATE H.V.VIKRAM, AGED ABOUT 45 YEARS, R/AT NO.332, NORTHERN EXTENSION, ARALIKATTE ROAD, HASSAN - 573 201.

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…RESPONDENTS

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(SERVICE OF NOTICE TO R1 TO R3 ARE HELD SUFFICIENT)

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THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO A) CALL FOR THE RECORDS IN O.S.NO.45/2021 WHICH IS PENDING BEFORE HONBLE II ADDL. SENIOR CIVIL JUDGE AND JMFC AT HASSAN.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

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ORAL ORDER

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Aggrieved by the order passed in IA Nos.9 and 10 in O.S.No.45/2021 dated 30.09.2024 by the II Additional Senior Civil Judge and JMFC, Hassan, the petitioner/plaintiff is before this Court.

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The plaintiff has filed the suit seeking partition. In

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the present applications, the plaintiff sought a direction against defendant Nos.3 and 4 to deposit the amounts which they have

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collected from harvesting the coffee and pepper crops and also by cutting and selling of standing timber in suit schedule Item No.5 and 6 of the ‘A’ Schedule properties.

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The Court, by order impugned has rejected the IA. While rejecting the IA, the Court has observed that during pendency of the suit, the plaintiff and defendant No.1 filed I.A.Nos.5 and 6 seeking to pass an order of temporary injunction against the plaintiff from harvesting and processing coffee and pepper seeds in suit Item Nos.5 and 6 of the properties and not to interfere with the possession of the said properties. The Court, by order dated 23.02.2023 allowed the IA No.6 filed by the plaintiff in-part and granted an order of temporary injunction only with respect of Item Nos.1 to 4 of the ‘A’ schedule properties. The plaintiff is restrained by way of an order of temporary injunction from harvesting coffee and pepper seeds in Item No.5 and 6 of a scheduled properties and interfering with the first defendants possession. It is observed that after passing orders on Item No.5 and 6 , the plaintiff has come with these applications again contending that the defendants Nos.3 and 4, after death of defendant No. 1, highhandedly and illegally harvested the coffee and pepper

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seeds and also cut and sold hundreds of standing timber in the above said properties and sought for appointment of Forest Officer as Court Commissioner to assess value of the Timber cut by the defendants No.3 and 4.

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The Trial Court has observed that the plaintiff has not placed any sufficient document to show that the defendant Nos.3 and 4 have illegally entered the suit Item Nos.5 and 6 and harvested the crops grown there. The Court has observed that, the Court has already granted injunction in favour of the defendant under Item No.5 and also observed that the plaintiff has not made out prima facie case to grant any relief in respect of the Schedule Item Nos. 5 and 6 of the ‘A’ property. Hence, the question of considering the claim made by the plaintiff again under Item No.6 will not arise.

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The Trial Court has further observed that in the said suit, the plaintiff, defendant No.1, defendant No 2 and late J.R Venkatramu were the parties and all four persons were allotted a share. After disposal of the suit in O.S.No.219/1998, a partition suit was filed by one J. R. Keshavamurthy, the brother of the plaintiff and was disposed of by virtue of the compromise

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entered between the parties and final decree was also drawn, as per the terms of the compromise. In the said suit, the plaintiff, first defendant and second defendant and J. R. Venkataramu were the parties and all four persons were allotted shares. After disposal of the suit and after 10 years from the date of allotment of shares to plaintiff, the plaintiff and defendant No.2 relinquished their shares in Item Nos.5 and 6 of the scheduled properties. Therefore, they are the properties of defendant No.1 and J. R. Venkataramu. Hence, in those circumstances, the plaintiff cannot make this application.

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Learned counsel for the petitioner submits that though after the partition, the petitioner has relinquished his share in favour of defendant no.1, after the death of the defendant No.1, the petitioner being a Class-I heir is entitled for partition. It is further submitted that the finding recorded by the Trial Court cannot be sustained. Unless an order is passed, the defendants may continue to cut and sell the standing trees in the suit schedule properties, which would cause a lot of hardship to the petitioner.

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Having heard the learned counsel on either side,

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perused the material on record.

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Petitioner’s mother was defendant No.1 in the suit. During her lifetime, the Trial Court had granted an order of injunction restraining the plaintiff from interfering with the cultivation of coffee and pepper seeds. After her death, again applications are filed seeking appointment of the Forest Officer as Court Commissioner to assess and ascertain the value of the land owned by the defendants in the Suit Schedule Item Nos.5 and 6 of the ‘A’ schedule properties.

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Learned counsel contends that the Trial Court has considered the earlier suit about the relinquishment of the rights made by the petitioner/plaintiff and has rightly rejected the applications. When the petitioner was unsuccessful in getting an injunction in the earlier applications, the petitioner cannot seek the present relief and all other contentions with regard to whether the petitioner is entitled for partition. All that would be decided by the Court in the pending trial and at this point of time, the petitioner is not entitled for any relief from this court.

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