RAJESH ENTERPRISES Vs. JAKKAVVA

JUDGEMENT

(1.) The prayer sought in this writ petition is to issue a writ in the nature of certiorari quashing the impugned order dtd. 3/2/2024 passed in E.P.No.228/2023 by the Principal Senior Civil Judge and JMFC, Hubballi dismissing the application filed by the petitioner under Order XXI Rules 97, 98 and 101 of CPC vide Annexure-A and issue other writ, order or direction as may be deemed proper.

(2.) The main contention of the petitioner in the present petition is that the order impugned vide AnnexureA is erroneous. Respondents No.1 and 2 instituted suit proceedings in O.S.No.2/2009 for partition and separate possession of their alleged share. It is also his contention that petitioner's name reflects in the city survey records pertaining to CTS No.504/A1 situated at Lamington Road, Hubballi and he was not made as party in the suit proceedings. Counsel for the petitioner also relies upon the copy of the plaint and copy of CTS record as produced as Annexures-B and C. It is the contention of the petitioner that he is the holder of perpetual leasehold rights to an extent of 2870 sq.ft. comprised in the said CTS No.504/A1 and he acquired his rights under registered instruments of lease and sale dtd. 21/5/1982 and 28/5/1982 and copy of registered sale deed and lease deed are marked as Annexures-D and D1. It is also his contention that original perpetual lease came into existence vide registered instrument dtd. 7/11/1894 in respect of R.S.No.85 of Keshwapur Village in Hubballi executed by the predecessors of respondents No.1 and 2 in favour of the Indian Cotton Company Limited, Bombay. The said lease deed is also marked as Annexure-E. It is contended that marked portion covered by the R.S.No.85 which was subject matter of lease deed dtd. 7/11/1994 was 5 acres 39 guntas and 3 annas. It is contended that the original lease holder Indian Cotton Company Limited went in liquidation in the year 1941. On 19/4/1941 an indenture came to be executed by the official liquidator assigning all the perpetual leasehold rights contained in lease deed dtd. 7/11/1994 to one Siddhalingappa Ishwarappa Bulla. As a matter of fact, the terms of perpetual lease provided for further sub-lease or development or creation of third-party interests in the same and also a right in the lessee to continue the lease perpetually or to surrender the leasehold rights. Copy of the said indenture is marked as Annexure-F.

(3.) It is contended that things having stood thus, a portion of CTS No. 504/A1 came to be acquired and land acquisition proceedings were initiated. The predecessor of respondents No. 1 and 2 agitated before the Extra Assistant Judge, Dharwad in Misc. Application No.60/1944 challenging the rights of Siddhalingappa Bulla to receive compensation. The Extra Assistant Judge, Dharwad ruled that the predecessor of the respondents was entitled to nothing more than the Rs.550.00 of annual ground rent and the compensation for loss of any land or part thereof comprised in CTS No.504/A1 rightfully belonged to Siddhalingappa Bulla. This ruling of Extra Assistant, Dharwad was called in question before this Hon'ble Court in F.A. No.346/1945. This Hon'ble Court while dismissing the appeal preferred by Maritammanna Amarshetti confirmed the order passed by the lower Court and held that the lease hold rights were not only permanent in nature, but were also transferable and heritable. Copies of the order are marked as Annexures-G and G1.