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2017 DIGILAW 580 (KAR)

Doddakakkamma Alias Akkamma v. Lakkanna

2017-03-10

B.VEERAPPA

body2017
ORDER : B. Veerappa, J. This is a defendant's writ petition against the order dated 30.01.2017 allowing I.A. No. XVII filed by the plaintiff under Order 39, Rules 6 and 7 of Code of Civil Procedure in O.S.No.531/2011 on the file of the Prl. Civil Judge and JMFC, Madhugiri. Usufructs of the tamarind trees situated in the suit schedule properties was ordered to be auctioned between the parties to the suit and the proceeds to be deposited in the Court for which the successful party will be entitled. 2. The respondent No.1/plaintiff filed O.S.No.531/2011 against the petitioner and the 2nd respondent herein contending that the suit schedule properties are the ancestral joint family properties of plaintiff and defendants. It was contended that, of late, the first defendant has turned hostile and inimical towards the plaintiff and acted detrimental to the rights and interest of plaintiff over the suit schedule properties and other properties. The first defendant who is staying at Hosapalya, Medigeshi Hobli, Madhugiri Taluk with her brother has been ill advised to alienate the suit schedule properties in favour of others by taking advantage of some nominal and false entries in the revenue records just to defeat the valuable rights of the plaintiff over the same. It is the further case of the plaintiff that O.S.No.392/2011 filed by the first defendant against the second defendant for cancellation of mortgage deed was subsequently decreed by way of compromise in collusion and therefore, filed suit for declaration that the plaintiff and defendants are the joint owners of the property and also for cancellation of decree obtained in O.S.No.392/2011. 3. The first defendant filed written statement and denied the plaint averments and contended that the suit property was allotted to plaintiff's father Eranna who sold the same to the first defendant under registered sale deed dated 23.04.1968 by receiving the sale consideration and he is in possession and enjoyment of the property and therefore, sought for dismissal of the suit. 4. 4. When the matter was posted for evidence of plaintiff, the plaintiff filed an application under Order 39, Rules 6 and 7 of the Code of Civil Procedure requesting the Court to auction the usufructs of two tamarind trees situated in the suit schedule properties between the parties and to deposit the proceeds in the Court, contending that the suit schedule properties contain one tamarind tree each, both are yielding good fruits and since 2013 the usufructs of the said trees are being auctioned between the parties and the sale proceeds are being deposited in the Court. The deposit is for the benefit of the successful party, etc. The said application was resisted by the defendants by filing objections, contending that plaintiff has to prove ownership over the property, unless and until the trial is complete, the plaintiff cannot seek any relief of auction of usufructs of tamarind trees etc. and prayed for dismissal of the application. The trial Court considering the entire material on record, by the impugned order dated 30.01.2017 allowed the application. Hence the present writ petition is filed. 5. I have heard the learned counsel for the parties to the lis. 6. Sri. Anandeeswar. D.R. learned counsel for the petitioner vehemently contended that when the suit filed by the plaintiff is pending with regard to declaration that plaintiff and first defendant are the joint owners of the suit schedule property, till the same is established before the trial Court, plaintiff is not entitled to usufructs of the tamarind trees as contended in the application. He also contended that when the defendant has taken a specific defense in the written statement that plaintiff's father Eranna has alienated the property in favour of the first defendant under a registered sale deed dated 23.04.1968, question of granting declaration does not arise at all and the question of auction of usufructs of tamarind tree also does not arise and therefore, sought to allow the writ petition. 7. Per contra, Sri. P. Suresh, learned counsel for the caveator respondent/plaintiff sought to justify the impugned order and contended that the usufructs of tamarind trees are being auctioned from 2013 and the sale proceeds are being deposited in the Court and ultimately the party who will succeed in the suit will be entitled to the same and sought to dismiss the petition. 8. P. Suresh, learned counsel for the caveator respondent/plaintiff sought to justify the impugned order and contended that the usufructs of tamarind trees are being auctioned from 2013 and the sale proceeds are being deposited in the Court and ultimately the party who will succeed in the suit will be entitled to the same and sought to dismiss the petition. 8. Having heard the learned counsel for the parties to the lis, the only point that arises for consideration is: "Whether the trial Court is justified in allowing the application filed under Order 39, Rules 6 and 7 of Code of Civil Procedure in the facts and circumstances of the present case?" 9. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record carefully. 10. It is undisputed fact that the respondent No.1/plaintiff filed suit for declaration that the plaintiff and first defendant are the joint owners of the suit schedule properties and for permanent injunction and also to cancel the decree passed in O.S.No.392/2011 obtained in collusion between defendants 1 and 2. It is the specific case of the first defendant that the suit schedule properties purchased by him from the father of the plaintiff on 23.04.1968. The allegations and counter allegations have to be adjudicated by the trial Court in a full-fledged trial. It is undisputed fact that there are two tamarind trees in the suit schedule properties and it is also not in dispute that the tamarind trees are yielding fruits and from the year 2013 the usufructs are being auctioned and the amount is being deposited in the Court. It is also not in dispute that similar application filed by the plaintiff on two earlier occasions has been allowed and the said orders have not been challenged. 11. When the dispute between the parties is pending for adjudication with regard to joint ownership as claimed by the plaintiff and individual ownership as contended by the first defendant in the written statement, the trial Court is fully justified in passing the impugned order. Therefore, the point raised for consideration is answered in the affirmative. No grounds are made out to interfere with the impugned order in exercise of powers under Article 227 of the Constitution of India. Writ Petition is dismissed.