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2019 DIGILAW 1512 (KAR)

Mohan Rao v. Karnataka Housing Board

2019-07-02

P.G.M.PATIL

body2019
JUDGMENT : P.G.M. Patil, J. 1. The plaintiff being aggrieved by the order dated 18.8.2016, passed on I.A. No. 1 in R.A. No. 93/2016, by the I Addl. District and Sessions Judge, Dharwad, sitting at Hubballi, wherein the application filed by respondent No. 1 herein under Order 22 Rule 10 read with section 151 of CPC, seeking leave to prefer regular appeal as against the judgment and decree dated 24.11.2007 passed in O.S. No. 327/2006, by the Prl. Senior Civil Judge, Hubbali, was allowed, has filed this appeal. 2. The brief facts of the case are that, the plaintiff is the owner and in possession of the land bearing Block No. 232 measuring 8 acres 27 guntas out of 13 acres 7 guntas situated at Gamanagatti village of Hubballi taluk. The remaining portion measuring 4 acres 15 guntas of the said block was allotted to the tenants through Yallappa Tippanna Bisugal and others on his behalf in view of Form No. 7 filed by deceased Yallappa before the Land Tribunal, Hubballi. Thus the Land Tribunal granted occupancy rights on 29.11.1975 and Form No. 10 in the year 1998 was issued to the extent of 4 acres 15 guntas to Bisugal family. Defendants No. 1 to 3 herein started disturbing over the land in possession of the plaintiff and as such he filed O.S. No. 327/2006 before the Prl. Senior Civil Judge, Hubballi, for declaration and injunction and temporary injunction was granted. Subsequently after the trial the said suit came to be decreed on 24.11.2007 by declaring that the plaintiff is the owner of the land to the extent of 8 acres 27 guntas in the said block and permanent injunction was granted against the defendants in the said suit. 3. Respondent No. 1 herein is said to have purchased the suit schedule property from respondent Nos. 2 to 4 on 12.12.2006 i.e. during the pendency of the suit. Thus in Execution Case No. 150/2011 filed by the plaintiff, respondent No. 1 filed an application under Order 21 Rule 58 of CPC to come on record as objector and an application under Order 21 Rule 98 and 99 of CPC seeking to set aside the said judgment and decree. The said applications were allowed by the executing Court and the same was challenged by the plaintiff in W.P. No. 105460/2014 and W.P. No. 112517/2014. The said applications were allowed by the executing Court and the same was challenged by the plaintiff in W.P. No. 105460/2014 and W.P. No. 112517/2014. The said writ petitions came to be al lowed holding that the purchaser of the suit property has no right to come on record in the execution case and he is bound by the decree. However, respondent No. 1 was reserved liberty to agitate his rights in accordance with law. Thereafter respondent No. 1 filed R.A. No. 93/2016 challenging the judgment and decree dated 24.11.2007 passed in O.S. No. 327/2006 by the Prl. Senior Civil Judge, Hubballi and he also sought leave of the Court to prosecute the said appeal by making an application under Order 22 Rule 10 read with section 151 of CPC, which was numbered as I.A. No. 1. 4. The plaintiff/appellant herein filed objections on the said application and contended that the suit is already decreed and the parties to the suit have not challenged the said decree and respondent No. 1 is not a bona fide purchaser of the suit property and further his rights are already determined in the execution case and the same are set aside in writ petition. Similarly respondent Nos. 5 and 6 filed objections denying the contention with regard to bona fide purchase of the suit property by respondent No. 1 and they also contended that there is no prior permission obtained from the Government by respondent No. 1 as required under section 33 of KHB Act. 5. The Court below considered I.A. No. 1 filed in R.A. No. 93/2016 and without considering the documents produced by the parties, held that respondent has purchased the suit property during the pendency of the suit and as such it amounts to lis pendence. Further, the rights and interest of respondent No. 1 are required to be protected and as such leave was granted by the lower appellate Court to prosecute R.A. No. 93/2016. The plaintiff being aggrieved by the said impugned order has filed this appeal. 6. Heard the learned counsel for the appellant and respondent No. 1. 7. Further, the rights and interest of respondent No. 1 are required to be protected and as such leave was granted by the lower appellate Court to prosecute R.A. No. 93/2016. The plaintiff being aggrieved by the said impugned order has filed this appeal. 6. Heard the learned counsel for the appellant and respondent No. 1. 7. A short question which arises for consideration before this Court in this appeal is as to whether the appellant has made out grounds to hold that the impugned order granting leave to respondent No. 1 to prosecute R.A. No. 93/2016 is illegal and perverse and the same is liable to be set aside. 8. The learned counsel for the appellant vehemently submitted that the appellant/plaintiff had filed O.S. No. 327/2006 and in the said suit an interim order was passed directing the parties to maintain status quo and in spite of the said order, the defendants therein have sold the suit land to respondent No. 1 by executing a registered sale deed and respondent No. 1 purchased the suit property in violation of the order of the Court. Therefore, respondent no. 1 is not a bona-fide purchaser and there is no question of protecting his interest in the appeal filed by him. 9. The learned counsel further submitted that respondent No. 1 had filed an application to implead him in the execution petition which came to be allowed. Thereafter the plaintiff preferred W.P. Nos. 105460/2014 and 112517/2014, which were allowed and the order passed by the executing Court permitting respondent No. 1 to come on record was set aside. However respondent No. 1 was given liberty to agitate his rights in accordance with law. Thereafter respondent No. 1 filed R.A. No. 93/2016, wherein he filed I.A. No. 1 seeking leave of the Court to prosecute the said appeal. 10. The learned counsel for the appellant further submitted that the objections filed by the appellant on the said application were not considered by the Court below. Respondent No. 1 is not entitled to file the said appeal against the judgment and decree passed against his vendors and that the decree passed in the said suit is binding on respondent No. 1 being the purchaser pendente lite. Therefore the lower appellate Court ought to have dismissed I.A. No. 1. 11. Respondent No. 1 is not entitled to file the said appeal against the judgment and decree passed against his vendors and that the decree passed in the said suit is binding on respondent No. 1 being the purchaser pendente lite. Therefore the lower appellate Court ought to have dismissed I.A. No. 1. 11. Per contra, the learned counsel for respondent No. 1 submitted that the appeal is not yet admitted before the lower appellate Court, only leave is granted to prosecute the appeal. Still the application filed for condonation of delay is pending for consideration in the said appeal. The learned counsel further submitted that the right of appeal is available to the purchaser and his rights have to be adjudicated. Therefore he had filed application under Order 21 Rule 58 of CPC to impleaded him in the execution proceedings which was allowed. However, subsequently the said order was set aside by this Court in writ petitions stated above. The learned counsel has relied on two judgments in support of his arguments. 12. It is not disputed that the appellant herein filed O.S. No. 327/2006 against defendant Nos. 1 to 5 seeking a decree for declaration that defendant Nos. 1 to 3 do not have any lien, right in respect of the suit schedule property and to restrain them permanently from illegally obstructing him in the enjoyment of the suit property. However, declaration was sought that defendant No. 5 has no right to make alterations, additions in the revenue entries in respect of the suit property. It is not disputed that defendant Nos. 1 to 3 appeared in the said suit and the said suit came to be decreed by judgment dated 24.11.2007. 13. It is also admitted that respondent No. 1 herein purchased the suit schedule property from defendant Nos. 1 to 3 in the said suit during the pendency of the suit. However he did not file any application in the said suit to implead himself as one of the defendants. After the disposal of the said suit, the vendors of respondent No. 1 namely the defendants in the said suit have also not challenged the judgment and decree dated 24.11.2007. Only when the decree holder filed Execution Petition No. 150/2011, respondent No. 1 herein filed an application to implead him in the said petition under Order 21 Rule 58 of CPC to implead him as objector. Only when the decree holder filed Execution Petition No. 150/2011, respondent No. 1 herein filed an application to implead him in the said petition under Order 21 Rule 58 of CPC to implead him as objector. The said application was allowed by the executing Court. However the said order was set aside by the High Court in the writ petitions stated above. While disposing of the said writ petitions, this Court reserved liberty to respondent No. 1 to agitate his rights in accordance with law. Thereafter respondent No. 1 filed R.A. No. 93/2016 challenging the judgment and decree dated 24.11.2007 passed in O.S. No. 327/2006. 14. In that appeal he filed I.A. No. 1 under Order 22 Rule 10 read with section 151 of CPC seeking leave of the Court to prefer appeal. The appellant herein filed objections on the said application. The lower appellate Court after hearing both the parties, allowed I.A. No. 1 by the impugned order and passed an order to the following effect. "Leave is granted to the appellant to prefer this appeal." 15. The matter was posted for enquiry on condonation of delay and other applications. The contention on behalf of the appellant that respondent No. 1 is not a bona fide purchaser and that he has not obtained requisite permission from the Government to purchase the said land and that the Land Tribunal has granted occupancy rights in respect of 4 acres 15 guntas in favour of respondent Nos. 2 to 4 and that remaining land to the extent of 8 acres 27 guntas continued in the name of the appellant herein cannot be considered in the present appeal. 16. The lower appellate Court while allowing I.A. No. 1 has observed in paragraph No. 13 of the order that whether the appellant is the bona fide purchaser and whether the Land Tribunal granted occupancy rights to the entire extent of land due to inadvertence etc. cannot be considered at this stage. They can be considered only during the full fledged hearing of the appeal. Therefore the contention of the appellant that respondent No. 1 is not a bona fide purchaser and he cannot maintain appeal against the judgment and decree passed in O.S. No. 327/2006 are all the matters to be adjudicated before the lower appellate Court. 17. They can be considered only during the full fledged hearing of the appeal. Therefore the contention of the appellant that respondent No. 1 is not a bona fide purchaser and he cannot maintain appeal against the judgment and decree passed in O.S. No. 327/2006 are all the matters to be adjudicated before the lower appellate Court. 17. The only question which has to be considered in this appeal is with regard to locus standi of respondent No. 1 to file R.A. No. 93/2016. Whether respondent No. 1 can be permitted to prosecute his appeal by virtue of provisions of Order 41 Rule 22 of CPC has to be considered. 18. The learned counsel for respondent No. 1 has relied on the judgment in the case of Smt. Lalitha Kothari vs. Sri. V. Sathyanarayana and Another, (2015) ILR (Kar) 2959. This Court in the said case considered as to whether the purchaser pendente lite can be permitted to file and prosecute the appeal. This Court has referred to the dictum of the Hon'ble Supreme Court in (1894) 2 Ch 410, which reads as follows: "Now, what was the practice of the Court of Chancery before 1862 and what has it been since. I understand the practice to be perfectly well-settled that a person who is a party can appeal (of course within the proper time) without any leave and that a person who without being a party is either bound by the order or is aggrieved by it, or prejudicially affected by it, cannot appeal without leave. It does not require much to obtain leave. If a person alleging himself to be aggrieved by an order can make out even a prima-facie case, he should have leave he will get it, but without leave he is not entitled to appeal." 19. Therefore in the present case it has to be considered as to whether respondent No. 1 is aggrieved by the judgment and decree passed in the suit and whether he is prejudicially affected. If answer is yes, he should have the leave and he will get it to prosecute the appeal as observed above. Therefore in the present case it has to be considered as to whether respondent No. 1 is aggrieved by the judgment and decree passed in the suit and whether he is prejudicially affected. If answer is yes, he should have the leave and he will get it to prosecute the appeal as observed above. Further, this Court has also referred to the judgment in the case of Nookala Seetharamaiah vs. Kotaiah Naidu, (1970) 2 SCC 13 , wherein it is held as follows: "Broadly speaking, a party or person is aggrieved by a decision when and only when it operates directly and injuriously upon his personal, pecuniary or property rights." "In legal acceptation a party or person is aggrieved by a judgment, decree or order, so as to be entitled to appeal............whenever it operates prejudicially and directly upon his property or pecuniary rights or upon his personal rights and only when it has such effect." 20. Therefore the person aggrieved by a decision and when only it operates prejudicially and directly upon his property or pecuniary rights and in such a circumstance he is entitled to prefer an appeal. 21. The learned counsel for the respondent No. 1 has relied on the judgment in the case of Smt. Saila Bala Dassi vs. Smt. Nirmala Sundari Dassi and Another, (1958) AIR SC 394. The Hon'ble Supreme Court in paragraphs No. 8 has observed as follows: "..............The right to file an appeal must therefore be held to carry with it the right to continue an appeal which had been filed by the person under whom the applicant claims, and the petition of the appellant to be brought on record as an appellant in Appeal No. 152 of 1955 must be held to be maintainable under S.146." 22. Further in paragraph No. 9 it is held as follows: ".............It is obvious that there are several substantial questions arising for determination in which the appellant as purchaser of the properties is vitally interested and indeed is the only person interested. As a purchaser pendente lite, she will be bound by the proceedings taken by the first respondent in execution of her decree and justice requires that she would be given an opportunity to protest her rights." 23. Therefore, in the present case respondent No. 1 is entitled for leave of the Court to prefer appeal which has been granted by the lower appellate Court. Therefore, in the present case respondent No. 1 is entitled for leave of the Court to prefer appeal which has been granted by the lower appellate Court. Therefore the impugned order cannot be held as either perverse or illegal nor it calls for interference by this Court. This Court in the present proceedings cannot consider the claim of respondent No. 1 that he is a bona fide purchaser and other contentions as the matter is seized before the lower appellate Court in R.A. No. 93/2016 and the said Court has posted the matter for enquiry on condonation of delay application and other applications. Under these circumstances, this Court holds that the appellant has not made out any grounds to interfere with the impugned order. Accordingly point for consideration is answered in the negative. 24. In the result, the appeal being devoid of merit is liable to be dismissed. Accordingly the appeal is dismissed. 25. The parties are directed to bear their own costs.