IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE B.VEERAPPA WRIT PETITION NO. 7495 OF 2019 (GM-CPC) BETWEEN:
RAJAPPA AGED ABOUT 65 YEARS S/O LATE SOMBAIAH DOMMASANDRA VILLAGE SARJAPURA HOBLI ANEKAL TALUK BENGALURU URBAN DISTRICT-562106 … PETITIONER (BY SRI. PRABHUGOUD B TUMBIGI, ADVOCATE) AND:
1. KALLALLAPPA DEAD BY HIS LRS 1(a) SMT MUNIYAMMA AGED ABOUT 77 YEARS FIST W/O LATE KALLALLAPPA R/A DOMMASANDRA VILLAGE SARJAPURA HOBLI, ANEKAL TALUK BENGALURU URBAN DISTRICT-562106.
1(b) ANNEMMA @ ARATHI AGED ABOUT 34 YEARS D/O LATE KALLALLAPPA CHIKKAMADAGONDAPPALI VILLAGE DENKANIKOTE TALUK KRISHNAGIRI DISTRICT TAMILNADU-634 004.
1(c) YELLAMMA AGED ABOUT 72 YEARS SECOND W/O LATE KALLALLAPPA R/A DOMMASANDRA VILLAGE SARJAPURA HOBLI, ANEKAL TALUK BENGALURU URBAN DISTRICT.
1(d) VENKATALAKSHMI AGED ABOUT 34 YEARS W/O ANANTHAPPA D/O LATE KALLALLAPPA R/O INNOVATIVE NATURA APARTMENT VINAYAKA BADAVANE, 5TH MAIN, ANANTHAPURA GATE, YELAHANKA BENGALURU-560064 2. MUNIRAJU AGED ABOUT 57 YEARS S/O GIRIYAPPA DOMMASANDRA V ILLAGE SARJAPURA HOBLI BENGALURU URBAN DISTRICT-562106.
… RESPONDENTS (BY SRI. H R ANANTHAKRISHNA MURTHY, ADVOCATE FOR R2; NOTICE TO R1(A) TO R1(D) IS DISPENSED WITH V.C.O DATED 25.03.2019) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DATED 5.2.2019 PASED IN M.A.NO.5004/2019 BY THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE COURT SIT AT ANEKAL PRODUCED VIDE ANNEXURE-A TO THE W.P. AND DECLARE THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE NON CONSIDERATION OF THE IA NO.VI FILED BY THE PETITIONER HEREIN, IN O.S.NO.1020/2016 PENDING ON THE FILE OF THE HON'BLE SENIOR CIVIL JUDGE, ANEKAL ON 16.1.2019 IS BAD IN LAW AND ETC., THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER 1. The petitioner-plaintiff in O.S. No.1020/2016 filed the present writ petition against the order dated 05.02.2019 made in MA No. 5004/2019 on the file of the 3rd Additional District and Sessions Judge, Anekal dismissing the appeal as not maintainable.
2. The present petitioner-plaintiff filed the suit for declaration and permanent injunction in respect of the suit schedule property against the original defendants 1(a-f) contending that the he is the absolute owner and in possession of the suit schedule property and the defendants have no manner of right, title or interest over the property in interfering with the same. Petitioner- plaintiff filed an application to implead the 2nd defendant. The trial court allowed the said application for impleadment on 19.11.2018 and thereafter notice was issued to the second defendant on 13.03.2019 directing him to appear before the trial court on 13.03.2019. In the meanwhile, the plaintiff filed an IA under Order XXXIX Rule 1 and 2 read with Section 151 of CPC against the original defendant. On 13.03.2019, no order came to be passed. Hence, questioning the same, the petitioner-plaintiff filed an appeal in M.A. No.5004/2019 against the said order. The Lower Appellate Court considering the application and objections, by the impugned order dated 05.02.2019, dismissed the appeal on the ground of maintainability stating that the trial court has adjourned the application in question to the future date after notice to the opposite party, no right of any party is affected. Application o f the party making the application remains pending for future consideration. Such an order cannot be treated as an order refusing to grant injunction. Hence, the writ petition is filed.
3. When the matter was posted before this Court on 18.03.2019 Sri. H.R.Ananthakrishna Murthy, learned counsel for respondent No.2 submitted that if ultimately the plaintiff succeeds in the suit, the respondent No.2 will hand over the building as it is without claiming any compensation and will not claim any equity thereafter.
4. Based on such submission, the second respondent filed an undertaking affidavit before this Court on 21.03.2019 stating that in the event the plaintiff ultimately succeeds in the suit, he will not claim any equity in the land and he will hand over the land along with the construction existing in the land to the plaintiff without any demur or murmur and he will not claim any compensation. The said affidavit is placed on record that is how the matter is posted today. Learned counsel for the respondent No.2 submits that the 2nd defendant – respondent had purchased the property from its original owner/s prior to the suit filed by the plaintiff and construction has already been made in terms of the plan obtained from the jurisdictional authority upto ground level and in view of the categorical undertaking affidavit filed before this Court dated 21.03.2019 and the same having been placed on record, it suffice to dispose of the writ petition on the basis of the affidavit.
5. Having heard the learned counsel for the parties it is not in dispute that the suit is for declaration and permanent injunction in respect of the suit schedule property. According to the plaintiff, he is the owner and in possession. According to the second defendant he is the bonafide purchaser of the suit property in question and he has constructed the building up to little level. In case, if the plaintiff succeeds in the pending suit, he will not claim any equity in terms of the undertaking affidavit filed by him before this Court on 21.3.2019.
In view of the above, this writ petition stands disposed off.
It is made clear that the construction if any made/to be made by the second defendant is always subject to result of the pending suit. In case, the plaintiff succeeds in the suit, the second defendant shall not claim any equity or compensation as averred by him in his affidavit filed before this Court.
Ordered accordingly.
Sd/- JUDGE Bsv