IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 08TH DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.53127/2014 (GM-CPC) C/W WRIT PETITION NOS.53129-53130/2014 (GM-CPC) IN W.P.NO.53127/2014 BETWEEN:
SMT. GANGAMMA, D/O LATE BYLAPPA, W/O MAREGOWDA, AGED ABOUT 39 YEARS, R/AT NO. 129, "MARUTHI NILAYA" 16TH CROSS, BAGALGUNTE, BENGALURU-560 073. … PETITIONER (BY SMT. V.P.RUKMANI, ADVOCATE) AND:
1. SMT. PUTTALAKSHMAMMA W/O LATE BYLAPPA, AGED ABOUT 60 YEARS, 2. SRI. GANGAPPA, S/O LATE BYLAPPA, AGED ABOUT 30 YEARS, RESIDING NO.1 & 2, R/AT HDRIPURA VILLAGE, DODDABELAVANGALA HOBLI, DODDABAALLAPURA TALUK, BENGALURU (RURAL).
3. SRI. RAJKUMAR, S/O LATE BYLAPPA, AGED ABOUT 40 YEARS, R/AT NO.1653, 2ND CROSS, ACHARYA COLLEGE ROAD, GANAPATHI NAGAR, CHICKKABANAVARA, BENGALURU-560 090. … RESPONDENTS (BY SRI. ADINARAYANA, ADVOCATE FOR R1 & R3; R2 IS SERVED) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER VIDE ANNEXURE-A DTD. 9.10.2014 PASSED BY SR. CIVIL JUDGE & JMFC COURT, DODDABALLAPURA, PASSED IN RESPECT OF I.A.NO.XVII OF O.S.NO.109/2011.
IN W.P.NOS.53129-53130/2014 BETWEEN:
SMT. GANGAMMA, D/O LATE BYLAPPA, W/O MAREGOWDA, AGED ABOUT 39 YEARS, R/AT NO. 129, "MARUTHI NILAYA" 16TH CROSS, BAGALGUNTE, BENGALURU-560 073.
(BY SMT. V.P.RUKMANI, ADVOCATE) AND:
1. SMT. PUTTALAKSHMAMMA W/O LATE BYLAPPA, AGED ABOUT 62 YEARS, 2. SRI. GANGAPPA, S/O LATE BYLAPPA, AGED ABOUT 32 YEARS, NO.1 & 2 RESIDING AT: HDRIPURA VILLAGE, DODDABELAVANGALA HOBLI, DODDABAALLAPURA TALUK, … PETITIONER BENGALURU (RURAL). PIN CODE: 561 203.
3. SRI. RAJKUMAR, S/O LATE BYLAPPA, AGED ABOUT 42 YEARS, R/AT NO.1653, 2ND CROSS, ACHARYA COLLEGE ROAD, GANAPATHI NAGAR, CHICKKABANAVARA, BANGALORE-560 090.
… RESPONDENTS THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER VIDE ANNEXURE-A DTD. 13.12.2013 (COMMON ORDER) PASSED BY SR. CIVIL JUDGE AND JMFC COURT, DODDABALLAPURA PASSED IN RESPECT OF I.A.NO.I AND II IN O.S.NO.109/2011 AND SO ALSO THE ORDER (COMMON ORDER) VIDE ANNEXURE-B DATED 10.07.2014 PASSED IN BY M.A.10002/14 AND M.A.10003/14 BY VIL ADDISIONAL DISTRICT AND SESSIONS COURT AT DODDABALLAPURA, BANGALORE RURAL DISTRICT.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER The petitioner being the parties to a partition suit in O.S.No.109/2011 are knocking at the doors of the Writ Court for assailing orders of the Court below dated 09.10.2014 and 13.12.2013 whereby the request for temporary injunctive relief for restraining alienation of the subject property and against felling of the standing eucalyptus trees therein and also for appointment of the Commissioner has been concurrently rejected by the Courts below. After service of notice, respondent- defendants having entered appearance through their counsel oppose the Writ Petitions.
2. Having heard the learned counsel for the parties and having perused the Petition Papers, this Court is of a considered opinion that some reprieve needs to be granted to the petitioner for the following reasons:
i) the suit in O.S.No.109/2011 is for a decree of partition and separate possession of the subject properties on a part of which admittedly there are eucalyptus trees; ordinarily a suit for partition being a title suit, there is a need to preserve the subject properties regardless of the rival stand arising from the pleadings;
ii) the contention of the learned counsel for the respondent-defendants that the doctrine of lis pendens enacted u/s 52 of the Transfer of Property Act, 1882 will look after the interest of the plaintiff’s is a poor solace to the plaintiff regard being had to the likely complication that would arise should the suit property change the hands pendene lite as held by this Court in a catena of decisions; therefore, the petitioner is justified in seeking embargo on the alienation or encumbering of the suit properties;
iii) it is an admitted position emerging from the pleadings of the parties that in two of the suit properties there are standing eucalyptus trees; by virtue of Section 3(26) of the General Clauses Act, 1897 the standing eucalyptus trees having been deeply rooted into the earth constitute a part of the property on which they are grown and therefore, they too are immovable property; learned counsel for the respondent-defendants is more than justified in contending that these standing trees are not perishable goods and therefore, there is no requirement of the said trees being felled & auctioned on the request of the petitioners side; orders of the Court below rejecting the request for the appointment of Court Commissioner therefore cannot be faltered; and iv) though both the sides traded and counter traded the charges against each other in relation to an alleged release deed/family arrangement, that is not a subject matter of these Writ Petitions and contentions of the parties in that regard are kept open for consideration by the trial court; suffice it to say that the subject properties shall not be alienated or encumbered except with the leave of the trial court, pendente lite.
In the above circumstances, W.P.No.53127/2014 seeking invalidation of the order refusing to appoint a court commissioner is dismissed; the W.P.Nos.53129- 53130/2014 are partly favoured; the impugned orders denying request of the petitioners for restraining alienation/encumbering of the subject property having been set at naught, the respondent-defendants are restrained from alienating or otherwise encumbering the same; similarly the respondent-defendants shall not fell or otherwise damage the eucalyptus trees standing in the suit lands without the leave of the trial court.
The Registry to send back the LCR immediately. No costs.
Sd/- JUDGE DS