MUNEERAPPA SINCE DEAD BY LRS (SMT. KENCHAMMA W/O MUNEERAPPA, SRI. B.M. RAJANNA S/O MUNEERAPPA AND SRI. H.N. RAMANJINAPPA S/O MUNEERAPPA) Vs. SMT. SAVITHRAMMA K.N. D/O LATE NARAYANAPPA @ NARAYANA RAO

JUDGEMENT

(1.) HEARD the learned counsel for the petitioners as well as the respondents. The parties to these petitions are the defendant and the plaintiff before the trial Court. Two I.As. came to be filed in O.S. 1539/2005. I.A.III was filed by the 2nd defendant - Muneerappa's L.Rs. for rejection of the plaint under Order VII rule 1');">11 saying that no cause of action survives, therefore, the suit has to be rejected. I.A. VI in O.S.1539/2005 was filed by the respondent -plaintiff Savithramma seeking an order of injunction against the defendants not to alienate the property pending disposal of the suit. I.A. III was rejected and I.A. VI was allowed. Aggrieved by the said orders, the present writ petitions are filed.

(2.) IT would be proper to narrate relevant facts for the purpose of disposal of these two writ petitions. One K. Narayanappa was the landlord of sy. No. 73 (old sy. No. 64) measuring 1 acre 9 guntas of Kattamnallur village and the same came to be leased in favour of one Muneerappa. Said Muneerappa sought for occupancy rights as a tenant and the same came to be rejected. At that point of time, Muneerappa approached this Court in W.P.309/85. Meanwhile, on 18.2.1983 said Narayanappa said to have sold the property in favour of one Krishnappa. However, the writ petition came to be allowed by remanding the matter to the Tribunal for fresh consideration. In the second round of enquiry before the land Tribunal, there was grant of occupancy rights in favour of Muneerappa and the same came to be challenged in W.P. 14157/05. The said matter came to be dismissed for non -prosecution and a recall application came to be filed. The same was dismissed and again to recall the dismissal of the recall application, an application is filed and the same seems to be pending.

(3.) ACCORDING to the tenant/defendant who is the petitioner before this Court, the learned Judge ought to have allowd I.A. III rejecting plaint itself in view of the fact that the tenancy rights in favour of Muneerappa came to be granted and no cause of action exists to fight the civil litigation. He also contends that the other prayer in I.A. VI not to alienate the property is also not justified in view of the tenancy issue having become final. Therefore, no lis exists between the present petitioner and the plaintiffs/respondents. The learned Judge after referring to all the facts and circumstances including the agitation and the controversy regarding the sale deed said to have been executed by Narayanappa in favour of Krishnappa opined that the Tribunal could not have gone into the issue of cancellation of sale deed as the issue has to be decided before civil Court. Hence he rejected I.A. III filed under Order VII Rule 1');">11 CPC. The reasoning of the learned Judge is just and proper. Even otherwise, though the writ petition as such is not yet restored, the fact remains, application to recall the dismissal of recall application in the writ petition is pending and the learned counsel for the respondent submits that it was purely on account of his ill -health said recall application came to be dismissed and he has filed his personal affidavit. According to him, even the dismissal of writ petition was due to ill -health of his client and there was justification why the writ petitioner was not present when the matter was taken up.