Smt. Sumithramma vs Smt. Halamma and Others

K.N. Keshavanarayana

Though this appeal it fitted for hearing on the I.A. filed for temporary injunction, the Appeal is heard on merits for admission.

Appellant is the unsuccessful plaintiff. The suit fifed by her for relief of declaration and permanent injunction in respect of vacant cite bearing No. 11 in Municipal Assessment Khata No. 530 (old), New Nos. 5315 and 5499 measuring 30x+0 ft situated in Arasikere town came in be dismissed by the trial Court holding all the issues raised against her. The lower appellate Court dismissed the appeal filed by the plaintiff mainly on the ground that the suit was hit by doctrine of lie perdencs, since the plaintiff claimed to have purchased the suit schedule property from defendant No. 4 during the pendency of the litigation between defendant No. 4 and his mother. It is against these concurrent findings of the courts below, the appeal is filed.

There is no dispute that Smt. Basamma, mother of defendant No. 4 Shivamurthy, under whom the appellant claims title to the suit schedule property, Sled a suit against her son for partition and separate possession on 21.04.1990 in O.S.No. 7/90 before the Civil Judge at Arasikere. It appears that the defendant namely Shivamurthy did not contest the said suit and the said suit came to be decreed on 10,06.1991 and a preliminary decree was drawn declaring that both the plaintiff and defendant have equal share in the suit schedule properties. One of the suit schedule properties was Sy.No. 292/1. It Appears, even before filing of the said suit the land bearing Sy.No. 291/1 had been divided into house building sites.

The appellant-plaintiff claims to have purchased one of the sites in the said land bearing Sy.No. 292/l from Shivamurthy on 09.09.1991. It appears that on 10.06.1993, Smt. Basamma died leaving behind a will dated 30.11.1991 bequeathing her right, title and interest in all the properties allotted to her share in the earlier suit filed by her including her right in land bearing Sy.No. 292/1 in favor of her brother K.V. Jayanna. The said K.V. Jayanna filed F.D.P.No. 7/96 for division of the properties by meats and bounds. In the said suit, a commissioner was appointed for dividing the properties. The report submitted by the commissioner came to be accepted and the same was affirmed by this Court in R.F.A.No. 212/2001 dated 14.07.2009. In the meanwhile, Jayanna also Appears to have died and his L.Rs. were brought on record. They continued the proceedings. As per the final decree drawn by the Court on the basis of the commissioner report, the site claimed to have been purchased by the appellant-plaintiff from Shivamurthy fell to the share of Basemms It is under these circumstances, the courts below have come to the conclusion that the plaintiff is not in possession of the property mod has not acquired any title to the property.

The lower appellate Court having regard to the admitted facts has held that the sale transaction in favor of the plaintiff is hit by doctrine of lis pendence. In fact while disposing of R.F.A.No. 212/01, the Division Bench in its judgment has clearly held that the sales in favor of various persons are hit by doctrine of lie-pendence. The said appeal had bean filed by Shivamurthy, vendor of the present plaintiff-appellant.

Under these circumstances, I am of the considered opinion that this appeal does not involve any question of law much less the substantial question of law warranting admission

Appeal is dismissed. It is open to the appellant to work out his remedies as is open to him under law including the right to proceed against his vendor.