N. VARALAKSHMI Vs. V. R. SHIVANANDA MURTHY

JUDGEMENT

(1.) This revision petition is filed challenging the rejection order dtd. 2/6/2022 on I.A.No.2 filed under Order VII Rule 11(d) read with Sec. 151 of CPC passed in O.S.No.671/2020 on the file of XXVIII Addl. City Civil Judge, Mayo Hall Unit, Bengaluru.

(2.) The factual matrix of the case of the plaintiff before the Trial Court is that the plaintiff/respondent No.1 herein has filed a suit for the relief of declaration to declare that the plaintiff is the absolute owner in lawful possession and enjoyment of the suit schedule property and to declare that the preliminary decree passed by this Court in R.F.A.No.2331/2007 dtd. 14/7/2017 and the order and draft final decree drawn by the XXVIII Addl. City Civil Judge, Mayo Hall Unit (CCH-29), Bengaluru, dtd. 6/2/2019 in FDP No.25017/2017 is not binding on the plaintiff or affecting the suit schedule property and also consequential relief of permanent injunction.

(3.) Defendant Nos.1 and 2, have filed an application under Order VII Rule 11(d) read with Sec. 151 of CPC and under Order VII Rule 11(a) to (e) read with Sec. 151 of CPC, respectively, the same came to be dismissed with costs of Rs.1,000.00 each. Defendant No.2 has not filed any revision petition. But, defendant No.1 has filed the present revision petition before this Court. Hence, this Court has to take note of the averments made in the application filed by defendant No.1 and he had invoked only Order VII Rule 11(d) read with Sec. 151 of CPC, wherein, prayed the Court to reject the plaint as barred by law. In support of this application, an affidavit was sworn to by defendant No.1, wherein, it is her claim that she has filed a suit for partition in O.S.No.10024/1998 against the defendant's vendors, wherein they have undertaken not to alienate the same as per the undertaking given to the Trial Court on 30/5/1998. The said suit was partly decreed on 31/7/2007 and against which, she has preferred an appeal before this Court in R.F.A.No.2331/2007 and the same was allowed on 14/7/2017 granting 1/4th share to her in the suit schedule property and the property bearing No.56/1 and accordingly, she has filed FDP No.25017/2017 and the Court has appointed a Court Commissioner to divide the same after hearing the objections from all the parties. Accordingly, northern side of the suit schedule property measuring 425 sq.ft. fallen to her share and she has taken the possession of the same through the Court by filing Execution Petition No.25141/2019 on 26/4/2019 and she is the judgment debtor No.3 in the said case. After taking possession of the same, the second defendant has also taken southern portion of the suit schedule property from the plaintiff and on the same day, the plaintiff has entered into rental agreement with her for the said portion a tenancy month starting from 1/5/2019 and accordingly, he has paid the advance amount of Rs.3.00 Lakhs and the balance payable is Rs.2.00 Lakhs out of Rs.5.00 lakhs and monthly rent payable is Rs.30,000.00 and accordingly, he has been paying the monthly rent in cash. Since he has accepted her as his landlord and entered into the rental agreement, it is not open for him to deny her title. That apart, whatever alleged transaction taken place between him and his vendors the pending proceedings is subject to the result of the suit. Hence, the Sale Deed has no validity in the eye of law and he is not entitled to get any relief in the suit. The plaintiff cannot re-agitate his right and the proceedings are binding on him since he has purchased the property during the pendency of R.F.A., and also there was a decree passed by the Trial Court. Hence, contended that the plaint is barred by law.