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2019 DIGILAW 1657 (KAR)

Annappa v. Suresh

2019-07-11

P.G.M.PATIL

body2019
JUDGMENT : P.G.M. Patil, J. 1. The pendente-lite purchaser of the suit property, being aggrieved by the judgment and decree dated 9.9.2004, passed in R.A.No.69/1998, by the District and Sessions Judge and Presiding Officer, Fast Track Court, Jamakhandi, reversing the judgment and decree dated 21.7.1998, passed in O.S.No.171/1996, by the Prl. Civil Judge (Jr.Dn.), Mudhol, has filed this regular second appeal. 2. Along with this appeal, the appellant has filed an application in I.A.No.3/2018 under section 151 of CPC seeking permission to prosecute the regular second appeal. 3. The appellant Annappa S/o. Adiveppa Handigund has sworn to an affidavit annexed to the application stating that the suit property was allotted to the share of father of the defendants in the partition in 1961 wherein various properties were divided between father of the plaintiff and father of the defendants. Thereafter in a subsequent partition, the suit property was allotted to the share of defendant No.3 and he had been in exclusive possession. However, respondent No.1/plaintiff instituted a suit for partition and separate possession in O.S.No.171/1996 against the defendants and the same was dismissed. R.A.No.69/1998 filed by the plaintiff came to be allowed decreeing the suit granting half share. In the meanwhile, the appellant herein had purchased the suit property for a valuable consideration being unaware of the litigation. RSA filed by the defendant came to be dismissed as withdrawn. SLP filed by the L.Rs., of the defendant was also dismissed. He purchased the suit property under a registered sale deed dated 25.7.2003 from the original defendant No.3. He is a bona fide purchaser for a valuable consideration being unaware of the litigation. He is the ultimate sufferer of the preliminary decree passed in R.A.No.69/1998. Therefore if the permission to prosecute this appeal is not granted, he will be put to irreparable loss and hardship. 4. The counsel for the respondent No.1 has filed common statement of objections on this application along with I.A.Nos.1 and 2 of 2018 stating that the appellant who is the purchaser pendentelite has filed the top noted appeal challenging the judgment and decree dated 9.9.2004 passed by the lower appellate Court in R.A.No.69/1998, reversing the judgment and decree dated 21.7.1998, passed by the trial Court in O.S.No.171/1996. The appellant is a pendente-lite purchaser of the land in question. He purchased the said land during the pendency of R.A.No.69/1998 from one Hanumant S/o. Gopal Deshpande on 25.7.2003. The appellant is a pendente-lite purchaser of the land in question. He purchased the said land during the pendency of R.A.No.69/1998 from one Hanumant S/o. Gopal Deshpande on 25.7.2003. Subsequent to the purchase, the appeal was allowed and suit filed by respondent No.1 was decreed granting him half share in the suit property. The brother of the plaintiff, vendor of the appellant Mahadev died on 21.3.2003, who had executed a power of attorney in favour of his brother Krishna S/o. Gopal Deshpande and the said Krishna without bringing it to the knowledge of this Court had filed RSA No.1188/2004 on 1.12.2004. Thereafter this Court was pleased to issue notice in the matter and subsequently respondent No.1 brought to the notice of the Court that the appeal is filed by a dead person and the counsel was asked to withdraw the appeal. The same was withdrawn on 23.6.2011 without seeking liberty to file fresh appeal. He has further stated that nearly after 2479 days, another appeal in RSA No.5802/2011 was filed before this Court challenging the same judgment and decree passed in R.A.No.69/1998 and the said appeal was dismissed by this Court on 9.7.2013. Thereafter the L.Rs of the deceased defendant preferred SLP No.33698/2013 before the Hon'ble Apex Court which condoned the delay and after hearing, dismissed the SLPs. The appellant herein without bringing all the above facts to the knowledge of this Court has filed the present appeal after delay of 4866 days i.e., nearly after 13 years as the FDP Court has ordered for possession warrant and the appeal is filed only to drag on the matter and to harass the respondent No.1 from getting the fruits of the decree. Therefore the application and the appeal be dismissed. 5. Heard the learned counsel for the appellant and respondent No.1 on I.A.No.3/2018. 6. Now, a short question which arises for consideration before this Court is as to whether the appellant/applicant has made out that he is entitled for leave of the Court to prosecute the present appeal. 7. It is an admitted fact that the 1st respondent herein filed O.S.No.171/1996 against the defendants for partition and separate possession of his share in the suit property. The said suit was dismissed. Thereafter the 1s t respondent herein filed R.A.No.69/1998 on the file of Prl. 7. It is an admitted fact that the 1st respondent herein filed O.S.No.171/1996 against the defendants for partition and separate possession of his share in the suit property. The said suit was dismissed. Thereafter the 1s t respondent herein filed R.A.No.69/1998 on the file of Prl. Civil Judge (Sr.Dn.), Jamkhandi and the said appeal was allowed on 9.9.2004 reversing the judgment and decree passed in O.S.No.171/1996 and respondent No.1 was granted half share in the suit property. 8. It is also admitted that after the death of Mahadev, his power of attorney holder Krishna filed RSA No.1188/2004 challenging the judgment and decree passed in R.A.No.69/1998. Subsequently it was brought to the notice of this Court that the said appeal was filed in the name of a dead person and consequently it was dismissed on 23.6.2011 without reserving any liberty to file fresh appeal. In spite of this, after 2479 days, another RSA No.5802/2011 was filed before this Court challenging the judgment and decree passed in the same R.A.No.69/1998 and the said appeal was dismissed on 9.7.2013. While dismissing the said appeal this Court has observed that RSA No.1188/2004 was dismissed as withdrawn without reserving liberty and therefore the subsequent RSA No.5802/2011 cannot be entertained and accordingly it was dismissed. 9. It is also admitted that the defendants including the vendor of the present appellant had filed SLP No.33698/2013 before the Hon'ble Supreme Court of India. In the said appeal delay was condoned and after hearing, the special leave petitions were dismissed by order dated 1.11.2013. Therefore the vendors of the present appellant have exhausted all the remedies available in law in challenging the judgment and decree passed in R.A.No.69/1998. It is also pertinent to observe that the present appellant purchased the suit schedule property on 25.7.2003 when the proceedings in R.A.No.69/1998 were pending before the Court. However the appellant neither made an attempt to get himself impleaded in the said appeal nor he joined his vendor in filing RSA No.1188/2004 or RSA No.5802/2011. 10. The record goes to show that the present appellant had filed W.P.No.63095/2011 to quash the order dated 20.4.2011 passed by the Prl. Civil Judge (Jr.Dn.), Mudhol and the said writ petition was dismissed as withdrawn on 13.9.2011. Further the appellant herein had filed W.P.No.105863/2014 before this Court challenging the orders passed on I.A.No.14 in FDP No.5/2004 by the Prl. Civil Judge, Mudhol. Civil Judge (Jr.Dn.), Mudhol and the said writ petition was dismissed as withdrawn on 13.9.2011. Further the appellant herein had filed W.P.No.105863/2014 before this Court challenging the orders passed on I.A.No.14 in FDP No.5/2004 by the Prl. Civil Judge, Mudhol. The appellant herein had filed I.A.No.14 in the said proceedings to implead him under Order 21 Rule 29 of CPC. The said application was rejected. Therefore the appellant filed the said writ petition in which he contended that he is a bona fide purchaser of the suit property and therefore he is interested in the subject matter of the suit and he may be impleaded in the said proceedings. This Court has observed in clear terms that the appellant is the purchaser pendente-lite and his rights are subject to the outcome of the suit which commenced in O.S.No.171/1996. 11. Further, the present appellant had filed W.P.No.107940/2014 challenging the orders passed on I.A.No.15 in FDP No.5/2004 which came to be dismissed on 9.10.2014. Similarly the appellant had further filed another writ petition No.101055/2017 challenging the order dated 11.11.2016 passed by the Prl. Civil Judge, Mudhol, in FDP No.5/2004 rejecting his application filed under section 51 of the Transfer of Property Act. He tried to claim value of the improvements made in the suit land. 12. In that case this Court has made clear observations that this Court relying in the case of Thomson Press (India) Limited vs. Nanak Builders and Investors P. Ltd and others, (2013) AIR SC 2389, held that if the sale is pending litigation, the plea of bona fide purchaser for value without notice is not available to such purchaser and that section 52 of the Transfer of Property Act imputes knowledge of such proceedings to the purchaser, the very moment the plaint is presented. It is also held that the purchaser is bound by the orders passed against his vendor and not entitled to anything beyond that. 13. Therefore after having failed in his attempt to seek remedy in the above proceedings, the appellant has filed the present appeal and this application seeking leave of the Court to prosecute the appeal. It is also seen from the record that the appellant has filed I.A.No.1/2018 for condonation of delay of 4866 days in filing the present appeal. 13. Therefore after having failed in his attempt to seek remedy in the above proceedings, the appellant has filed the present appeal and this application seeking leave of the Court to prosecute the appeal. It is also seen from the record that the appellant has filed I.A.No.1/2018 for condonation of delay of 4866 days in filing the present appeal. Under these circumstances, this Court holds that the appellant has not at all made out any grounds for granting leave to prosecute this appeal and there are no bona fides in the application and therefore the application being devoid of merit is liable to be dismissed. 14. Further it is seen that the appellant is trying to overcome the orders passed by the Courts against him and this is one of such an attempt and therefore the application is liable to be dismissed with costs. Hence the point for consideration is answered accordingly. 15. In the result, this Court proceed to pass the following: ORDER I.A.No.3/2018 is hereby dismissed with costs of Rs. 10,000/- payable to respondent No.1. Consequently, the appeal is also dismissed.