IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF DECEMBER 2017 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.55730 OF 2017 (GM-CPC) BETWEEN:
1. SMT.PARVATHAMMA W/O LATE VEERAPPA AGED 84 YEARS R/A SHETTIGANAHALLI VOKKALERI HOBLI KOLAR DISTRICT – 563 130 2. SMT.GOWRAMMA W/O NANDEESHAPPA AGED 80 YEARS R/AT BOPPANAHALLI VILLAGE MALURU TALUK KOLAR DISTRICT - 563130 3. SMT.PUTTAGOWRAMMA W/O NANJUNDAPPA AGED 78 YEARS R/AT JINNAGARA VILLAGE JADIGENAHALLI HOBLI HOSAKOTE TALUK-562114 BENGALURU RURAL DISTRICT (BY SRI.B.RAMESH, ADVOCATE) AND:
1. SMT. NANDISHAMMA D/O LATE MUNIRUDRAPPA ... PETITIONERS AGED 60 YEARS R/AT JINNAGARA VILLAGE JADIGENAHALLI HOBLI HOSKOTE TALUK-562114 BANGALORE RURAL DISTRICT 2. SMT. MARIYAMMA D/O LATE MUNIRUDRAPPA AGED 58 YEARS R/AT JINNAGARA VILLAGE JADIGENAHALLI HOBLI HOSKOTE TALUK-562114 BANGALORE RURAL DISTRICT 3. SMT. BABY D/O LATE MUNIRUDRAPPA AGED 52 YEARS R/AT JINNAGARA VILLAGE, JADIGENAHALLI HOBLI, HOSKOTE TALUK-562114 BANGALORE RURAL DISTRICT 4. SRI. MALLIKARJUNAIAH S/O LATE MUNIRUDRAPPA AGED 48 YEARS R/AT BOPPANAHALLI KASABA HOBLI MALUR TALUK-563130 KOLAR DISTRICT 5. SRI. MARIYAMMA S/O LATE MUNIRUDRAPPA AGED 45 YEARS R/AT BOPPANAHALLI KASABA HOBLI MALUR TALUK-563130 KOLAR DISTRICT 6. SRI. MAHADEV S/O LATE MUNIRUDRAPPA AGED 42 YEARS R/AT BOPPANAHALLI KASABA HOBLI MALUR TALUK-563130 KOLAR DISTRICT 7. SRI.SHIVASHANKAR S/O LATE MUNIRUDRAPPA AGED 40 YEARS R/AT BOPPANAHALLI KASABA HOBLI MALUR TALUK-563130 KOLAR DISTRICT 8. SMT. MALLAMMA W/O LATE NADISHWARAIAH AGED 50 YEARS R/AT BOPPANAHALLI KASABA HOBLI MALUR TALUK-563130 KOLAR DISTRICT 9. SMT. MANJULA W/O UMASHANKAR AGED 26 YEARS R/AT JINNAGARA VILLAGE JADIGENAHALLI HOBLI HOSAKOTE TALUK-562114 BENGALURU RURAL DISTRICT 10. SRI. SATISH S/O LATE NADISHWARAIAH AGED 22 YEARS R/AT BOPPANAHALLI KASABA HOBLI MALUR TALUK-563130 KOLAR DISTRICT 11. SMT. PREMA W/O LATE CHANDRAPPA AGED 40 YEARS R/AT BOPPANAHALLI KASABA HOBLI, MALUR TALUK KOLAR DISTRICT-563130 12. SMT. SIDDAGANGAMMA W/O MUNIRAJU AGED 35 YEARS R/AT JINNAGARA VILLAGE JADIGENAHALLI HOBLI HOSAKOTE TALUK-562114 BENGALURU RURAL DISTRICT 13. SMT. MEAREERAMMA W/O BAGESWARAIAH AGED 65 YEARS R/AT HURULAGERE VILLAGE KASABA HOBLI, MALUR TALUK KOLAR DISTRICT-563130 14. SMT. RUDRAMMA W/O SHIVARUDRAIAH AGED 62 YEARS R/AT PADUVANAHALLI VILLAGE KASABA HOBLI, MALUR TALUK KOLAR DISTRICT-563130 15. SMT. NANJAMMA W/O APPAJIGOWDA AGED 58 YEARS R/AT CHINAMANGALA VILLAGE JANGAMAKOTE HOBLI SIDLAGHATTA TALUK-562102 CHIKKABALLAPURA DISTRICT 16. SMT. SUJATHA W/O SADASHIVAIAH AGED 45 YEARS R/AT BOPPANAHALLI KASABA HOBLI, MALUR TALUK KOLAR DISTRICT-563130 17. SRI. SHIVARUDRAIAH S/O LATE SHIVANNA AGED 44 YEARS R/AT BOPPANAHALLI KASABA HOBLI MALUR TALUK-563130 KOLAR DISTRICT 18. SRI. RAMACHANDRAPPA S/O THAMMANNA AGED 51 YEARS R/AT BOPPANAHALLI KASABA HOBLI MALUR TALUK-563130 KOLAR DISTRICT …RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DTD 29.11.2017 PASSED BY THE SENIOR CIVIL JUDGE AT MALUR IN O.S.NO.211/2011 ON I.A.NO.27 VIDE ANNX-F AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER The plaintiffs filed the present Writ Petition against the order dated 29.11.2017 on I.A.No.27 made in O.S.No.211/2011 filed by the defendants 2 to 5 and 7 allowing the application filed by the defendants for police protection.
2. The plaintiffs filed suit for partition and separate possession in respect of suit schedule properties morefully described in the schedule to the plaint contending that the suit schedule properties are joint family properties and there was no partition in the joint family. The defendants filed the written statement, denied the plaint averments and contended that the very suit filed by the plaintiffs is not maintainable since there was earlier partition and some of the properties are self acquired properties of the defendants and sought for dismissal of the suit.
3. During the pendency of the proceedings, the plaintiffs filed application under Order 39 Rule 1 and 2 read with Section 151 of Code of Civil Procedure seeking relief of temporary injunction restraining the defendants from cutting and removing the eucalyptus trees over the suit schedule properties. The said application came to be dismissed on 06.08.2017 by the learned Civil Judge (Sr.Dn.), Malur which was the subject matter of the appeal before this Court in MFA No.10904/2007.
4. This Court after hearing both the parties by its order dated 24th November 2009 disposed of the appeal and directed the defendants to cut and remove the eucalyptus trees and account the sale proceeds of the same and the same shall be subject to final result of the suit. Accordingly, the order passed by the trial Court was modified. The said order passed by this Court has reached finality.
5. Thereafter, defendants 2 to 5 and 7 filed the present application on 27.08.2016 under Section 151 of Code of Civil Procedure to direct the PSI, Malur to give police protection to cut and remove eucalyptus trees standing in the suit schedule properties morefully described in the application contending that this Court in MFA No.10904/2007 permitted them to cut and remove trees and account the sale proceeds of the same and the same shall be subject to result of the suit. The said application was opposed by the plaintiffs.
6. The trial Court considering the application and objections by the impugned order allowed the application and directed the PSI, Malur to give protection to the defendants to cut and remove eucalyptus trees in respect of suit schedule properties morefully described in the application and appointed an advocate as Court Commissioner to attend the survey numbers when the defendants 2 to 5 and 7 are cutting and removing eucalyptus trees and to be present until conclusion of sale procedure of the same and to get details of accounts of the same and it was also directed to file report with respect to his presence in the above said survey numbers during cutting and removing the eucalyptus trees and procedure conducted at the time of sale of the said eucalyptus trees along with his detailed account of statement of sale proceed. Hence, the present Writ Petition is filed.
7. I have heard the learned counsel for the petitioner.
8. Sri.Ramesh, learned counsel for the petitioner contended that while allowing the application, the learned Judge has not imposed any conditions. The impugned order passed by the trial Court is contrary to the directions issued by this Court in MFA No.10904/2007 dated 24.11.2009 wherein this Court while permitting the defendants to cut and remove the eucalyptus trees, directed to account the sale proceeds and the same shall be subject to result of the suit. Therefore, he contend that the impugned order cannot be sustained. He contended that when the matter is posted for arguments, the trial Court ought not to have allowed the application. Therefore, he sought to quash the impugned order by allowing the present Writ Petition.
9. Having heard the learned counsel for the petitioner, it is not in dispute that the plaintiffs filed the suit for partition and separate possession in respect of suit schedule properties. The same was disputed by the defendants contending that there was partition earlier and some of the properties are self acquired properties of the defendants. It is also not in dispute that the trial Court rejected the application for temporary injunction and the same was subject matter of the appeal before this Court in MFA No.10904/2007. This Court while disposing the appeal has modified the order passed by the trial Court and directed the defendants to cut and remove the eucalyptus trees and account the sale proceeds and the same shall be subject to result of the suit.
10. In pursuance of the said order passed by this Court, after lapse of seven years, the defendants filed the present application. Though it was opposed, the trial Court allowed the application in view of the directions passed by this Court in MFA No.10904/2007. The trial Court while allowing the application ought to have protected the interest of present plaintiffs in terms of the order passed by this Court. Though the learned Judge appointed an Advocate as a Court Commissioner to be present to oversee the procedure of cutting and removal of eucalyptus trees and submit a detailed statement of account of sale proceeds has not observed that the said account of sale proceeds (amount) shall be subject to the result of the suit. Therefore, to that an extent, the impugned order passed by the trial Court has to be clarified.
11. In view of the above, it is made clear that sale proceeds of cutting and removal of eucalyptus trees is always subject to result of the suit pending between the parties as directed by this Court in MFA No.10904/2009.
With the above observations, Writ Petition is disposed of.
Sd/- JUDGE Prs*