IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE B.VEERAPPA WRIT PETITION NO. 13803 OF 2018 (GM-CPC) BETWEEN:
1. A RAVI SON OF ARMUGAM AGED ABOUT 35 YEARS 2. SRI D SATHISH SON OF DEVENDRAPPA AGED ABOUT 46 YEARS 3. SRI ASHOK SON OF PRABHAKAR AGED ABOUT 32 YEARS PETITIONERS NO. 1 TO 3 ARE: OWNERS OF JEWELLERY SHOPS AT 2ND CROSS, UPPARAKERI, GANDHI BAZAAR, SHIVAMOGGA - 577201 4. SRI GANGADHARAPPA SON OF ESHWARAPPA AGED ABOUT 74 YEARS 5. SRI NAUSHAD SON OF SHEIK IMAM SAB AGED ABOUT 54 YEARS 6. SMT VALLIYAMMA WIFE OF DINAKAR AGED ABOUT 53 YEARS 7. SRI ARUNGIRI SON OF RAJA KANNAN AGED ABOUT 44 YEARS 8. SMT S LAKSHMI WIFE OF HANUMANTHAPPA AGED ABOUT 36 YEARS 9. SRI PARAMESHI SON OF THIMMAPPA AGED ABOUT 49 YEARS 10. SRI H NAGESH SON OF HANUMANTHAPPA AGED ABOUT 39 YEARS 11. SMT MERY DAUGHTER OF SHEKAR AGED ABOUT 32 YEARS PETITIONER NO.4 TO 11 ARE: BUSINESSMAN, RESIDING AT LASHKAR MOHALLA, SHIVAMOGGA CITY - 577201 (BY SRI. MANOJ KUMAR R V, ADVOCATE FOR SRI. C M DESAI, ADVOCATE) AND:
1. SRI J M CHANNESHAIAH SWAMY SON OF LATE J M CHANDRASHEKARAIAH AGED ABOUT 74 YEARS PONTIFF OF JEDE DEVARA AND KALYANAPPASWAMY MUTT 2ND CROSS, UPPARAKERI, GANDHI BAZAAR, SHIVAMOGGA CITY – 577201 … PETITIONERS 2. SRI NISSAR AHAMED SON OF NOT KNOW TO PETITIONER AGED ABOUT 76 YEARS 3. SRI MUJVIL BASHA, SON OF NOT KNOW TO PETITIONER AGED ABOUT 44 YEARS 4. SRI HANEEF SON OF ABDUL KHALEE AGED ABOUT 56 YEARS 5. SRI VENKATESH SON OF DHARMAPPA AGED ABOUT 54 YEARS 6. SMT LAKSHMI WIFE OF AUTO MANJU SISTER OF VENKATESH AGED ABOUT 43 YEARS 7. SMT TUNGAMMA WIFE OF H NAGESH AGED ABOUT 33 YEARS 8. SMT RAJESHWARI DAUGHTER IN LAW OF SMT SAROJAMMA AGED ABOUT 49 YEARS 9. SRI ASHRAF SON OF C K ABDULLA AGED ABOUT 34 YEARS RESPONDENTS AT SL.NO. 2 TO 9 ARE: BUSINESSMAN, RESIDING AT LASHKAR MOHALLA, SHIVAMOGGA CITY – 577201 … RESPONDENTS (BY SRI. K G SADASHIVAIAH, ADVOCATE FOR R1; NOTICE TO R2 TO 9 IS DISPENSED WITH V.C.O DATED 27.09.2018) NOTE: RESPONDENTS NO. 2 TO 9 ARE THE DEFENDANTS IN THE SUIT, SINCE THEY HAVE NOT CHALLENGED THE IMPUGNED ORDER THEY ARE ARRAYED AS RESPONDENTS AND THAT THEY ARE FORMAL PARTIES AND NO RELIEF IS CALMED AGAISNT THEM, HENCE NOTICE AGAINST THE SAID RESPONDENT NO.2 TO 9 MAY KINDLY BE DISPENSED WITH,IN THE INTEREST OF JUSTICE AND EQUITY.
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 24.02.2018 PASSED ON IA NO.XI FILED BY THE R-1 UNDER SECTION 151 OF CPC IN O.S.NO.248/2014 PENDING BEFORE THE IV ADDL. CIVIL JUDGE AND JMFC AT SHIVAMOGGA, UNDER ANNEXURE-G.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioners who are the defendants in O.S.No.248/2014 on the file of the IV Additional Civil Judge and JMFC at Shivamogga have filed the present writ petition against the order dated 24.02.2018 on IA No.11. Wherein the said application came to be allowed directed the tenants who are residing at Block No. 1, 2 and 3 shall continue to pay the rental amount to the applicant – first respondent herein.
2. The first respondent who is the plaintiff before the trial court filed the suit for declaration, possession and injunction based on the registered Partition Deed dated 18.07.1949 raising various contentions. The present petitioners who are the defendants before the trial court had filed Written Statement denying the relationship between the parties and contended that they are not tenants under the plaintiff and sought for dismissal of the suit.
3. During the pendency of the suit proceedings, the plaintiff-respondent herein filed an application in IA No.11 to direct the defendants to pay the entire rent amount payable by them in respect of the schedule properties let out in their favour, to the plaintiff or to direct them to deposit the same before this Court in the event their failure to do so, to strike off the defence of the defendants. Further contended that there were several disputes regarding the ownership and possession of the properties of Jade Devara and Kalyanappaswamy Mutt and the right to be the pontiff of the said Mutt. It is ultimately ended in the judgment and decree dated 28.03.2013 made in RFA No.772/2000. In the said judgment, this Court held that there was no Swamy or Pontiff as such appointed by the said Mutt and the contesting parties have to approach the civil court for their remedies. As an interim arrangement, this Court appointed one Sri. Mahadeva Lal as receiver to administer the properties of the Mutt till the appointment of pontiff to the said Mutt in accordance with the custom prevailing.
4. It is further contended that from 01.01.2014 defendants have failed to make payment of the rentals in respect of the premises in terms of the agreement of lease and having no authority to withhold the same. Therefore the defendants have no right to pay the rentals in respect of the suit schedule premises in their occupation and continue to stay etc., The defendants filed objections and contended that plaintiffs have not entitled for the relief as sought for. The Trial court considering the application and objections by the impugned order dated 24.02.2018 allowed IA No.11 and directed the tenants under the plaintiff in Block No. 1, 2 and 3 shall pay the rent amount to the applicant. Hence the present writ petition is filed.
5. I have heard the learned counsel for the parties to the lis.
6. Shri Manoj Kumar, learned counsel appearing for, Shri C M Desai for petitioners contends that the impugned order passed by the trial court directing the present petitioners to pay the rents to the plaintiff is erroneous and contrary to the materials on record. He would further contend that in terms of the judgment and decree passed by this Court on 28.02.2013 made in RFA No.772/2000 and also on the application in IA 1/2014 filed for modification, this Court directed the tenants in Block No. 1, 2 and 3 shall pay the rentals to the defendants 1 to 5 therein only in respect of A schedule properties and not in respect of all the suit schedule properties. Therefore, he sought to allow the writ petition.
7. Per contra, Shri K. G. Sadashivaiah, learned counsel for the respondents – defendants herein sought to justify the impugned order and contend that in terms of the judgment and decree passed by this Court dated 28.02.2013 made in RFA No. 772/2013 and subsequent modification order dated 18.08.2015 this Court clarified that the possession of the properties in the name of defendant Nos. 1 to 5 in Block No 1, 2 and 3 of A schedule and shall continue to be retained/remained with them as ordered earlier and tenants shall continue to pay the rentals to the said defendants subject to their furnishing all appropriate accounts. Therefore, he sought to dismiss the writ petition.
8. Having heard the learned counsel for the parties, it is an undisputed fact that the plaintiff field a suit for declaration which is based on the registered partition deed dated 18.07.1949. The defendants filed Written Statement denying the relationship. It is also an undisputed fact that there were several disputes regarding to the ownership and possession of the properties of Jade Devara and Kalyanappaswamy Mutt and ultimately the matter reached before this Court in RFA No. 772/2000. This Court by judgment and decree dated 28.02.2013 disposed off the said appeal with certain observations and subsequently, on the application filed by the respondents for modification in I.A. No.1/2014, vide order dated 19.08.2015 clarified the same. Paragraph Nos. 5 to 7 of the said order read as under:
“5. By the impugned order, the trial court in para-108 accepted the contentions of defendant nos.1 to 5 that they are in possession of block nos.1,2 and 3 of schedule ‘A’ of the suit schedule property. While disposing of this RFA, the same was considered by holding that the Receiver shall take over all the properties of the Mutt and manage the same.
6. That so far as the properties in possession of the defendants are concerned, the same will continue in the possession of the defendants, but they shall not alienate the properties. Under these circumstances, the Receiver shall not have any authority to issue notice to tenants and seek rents from them, which is beyond the directions issued to him.
7. The Receiver shall comply with the directions issued by this Court vide page-30 of the final order. That the possession of the properties in the name of defendant nos.1 to 5 in block nos.1, 2 and 3 shall continue to remain with team as ordered earlier and the tenants shall continue to pay rents to the said defendants, subject to furnishing of appropriate accounts. Therefore, the plea of the applicant for the removal of the Receiver would not be necessary.”
9. By a careful reading of the said order, it is crystal clear that the possession of the properties in the name of defendants 1 to 5 in Block No. 1, 2 and 3 shall continue and remain with them as ordered earlier and the tenants shall continue to pay the rents to the said defendant Nos. 1 to 5 subject to all furnishing appropriate accounts.
10. It is seen that the trial court considering the entire material on record and also copy of RFA No.772/2000 wherein applicant is one of the party as defendant No.4 and this Court insofar as possession of the property as on today is concerned, as ordered that the same shall continue in possession of the defendants and shall not be alienated by the said defendants. Further, in view of the supplementary order in RFA No. 772/2000 passed on 19.08.2015 at paragraph Nos. 5 and 7 this Court clarified that the possession of the properties in the name of defendants 1 to 5 in Block No. 1, 2 and 3 shall remain with them as ordered earlier and tenants shall continue to pay the rents to the defendants subject to furnishing all appropriate accounts. Therefore, it has rightly allowed the application.
11. In that view of the matter, the impugned order passed by the trial court based on the findings given by this Court is just and proper. The petitioner has not made out any prima facie case which calls for interference by this Court with the impugned order passed by the Trial Court in exercise of i power under Article 227 of the Constitution of India.
With the above observations this writ petition stands dismissed.
12. However, it is made clear that the tenants who are in Block Nos. 1, 2 and 3 of the A schedule shall continue to pay the rents to the defendants including the present respondent defendant No.4 subject to the defendants shall furnish the appropriate accounts in terms of the order passed by this Court as already stated supra.
In view of the main disposal of the writ petition, I.A. No.2/2018 does not survive for consideration.
Bsv Sd/- JUDGE