Karnataka High Court
Yankamma Alias Kamalamma W/O Lakshmana ... vs Dileep S/O Narayan Raikar on 31 July, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC-D:10769
WP No. 101452 of 2024
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 31ST DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
WRIT PETITION NO. 101452 OF 2024 (GM-CPC)
BETWEEN:
YANKAMMA @ KAMALAMMA
W/O. LAKSHMANA DIVATAR,
AGE: 77 YEARS, OCC: HOUSEHOLD,
TQ: MEDIKINHAL VILLAGE,
TQ: LINGASUGUR, DIST: RAICHUR,
NOW R/O. GHASI BAZAR, NEAR AZAD CIRCLE,
KOPPAL-583231.
...PETITIONER
(BY SRI. SUBHASH J. BADDI, ADVOCATE)
AND:
1. DILEEP S/O. NARAYAN RAIKAR,
AGE: 57 YEARS, OCC: GOLDSMITH,
2. SMT. DEEPA W/O. DILEEP RAIKAR,
AGE: 52 YEARS, OCC: HOUSEHOLD,
Digitally signed
by SAROJA
HANGARAKI BOTH ARE R/O. NEAR AZAD CIRCLE,
Location: HIGH
COURT OF
KARNATAKA
JAWAHAR ROAD, KOPPAL,
DHARWAD
BENCH
TQ: AND DISTRICT: KOPPAL-583231.
Date: 2024.08.01
14:56:46 +0530
3. MANOHAR S/O. KRISHNAJI RAO BOMBLEKAR,
AGE: 60 YEARS, OCC: TAILORING,
4. RAMESH S/O. KRISHNAJI RAO BOMBLEKAR,
AGE: 57 YEARS, OCC: MECHANIC,
BOTH ARE R/O. GHAZI BAZAAR, NEAR AZAD CIRCLE,
JAWAHAR ROAD, KOPPAL-583231.
...RESPONDENTS
(BY SRI. B. SHARANABASAWA, ADV. FOR R1 & R2;
R3 & R4 ARE SERVED)
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NC: 2024:KHC-D:10769
WP No. 101452 of 2024
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF
CERTIORARI OR ANY OTHER WRIT, ORDER OR DIRECTION TO
QUASH THE IMPUGNED ORDER PASSED BY THE COURT OF THE
SENIOR CIVIL JUDGE AND CJM., KOPPAL IN M.A. NO.2/2022 ORDER
DATED 01-02-2024 VIDE ANNEXURE-M.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE H.P.SANDESH
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE H.P.SANDESH)
1. Though this matter is listed for orders, with the consent of counsel for the petitioner as also the counsel for the respondents No.1 and 2, it is taken up for final disposal.
2. This writ petition is filed praying this Court to quash the impugned order passed by the Court of Senior Civil Judge and CJM, Koppal in M.A.No.2/2022 dated 01.02.2024 vide Annexure-M.
3. The factual matrix of the case of the petitioner is that he is the plaintiff before the Trial Court in O.S.No.47/2022 and inter alia he has sought for the relief -3- NC: 2024:KHC-D:10769 WP No. 101452 of 2024 of temporary injunction by filing an application under Order XXXIX Rules 1 and 2 of CPC against the defendants No.1 and 2 restraining them from putting up construction of building in 'EFCD' area of the suit schedule property of the plaintiff till the disposal of the suit.
4. In the plaint it is contended that while seeking the relief of declaration and mandatory injunction and permanent injunction against the defendants, that one Kashinath was the absolute owner in possession of the suit schedule property and he died on 01.12.2002. The plaintiff is the only class-I legal heir of Kashinath. This being the fact, defendants No.3 and 4 illegally mutated the suit schedule property in their names and defendants No.1 and 2 have encroached the area of 3x67 feet in the suit schedule property and constructing building and hence, the plaintiff has approached the competent authorities for her grievances. But the concerned authorities have not taken any action. Hence, the plaintiff filed the suit and sought for interim relief.
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NC: 2024:KHC-D:10769 WP No. 101452 of 2024
5. It is the contention of the plaintiff that Kashinath is the absolute owner in possession of the suit schedule property and he has no class-I legal heirs except the plaintiff but defendants No.3 and 4 are the sister's children of Kashinath and they have illegally mutated the suit schedule property in their names. Defendants No.1 and 2 are constructing building by encroaching the property of the plaintiff measuring 3x67 feet and hence the plaintiff sought for the relief.
6. Defendants No.1 and 2 appeared before the Court and filed written statement to the I.A. contending that the plaintiff has filed false and frivolous suit and documents produced by the plaintiff show that the suit property is standing in the name of defendants No.1 and
2. Further, they have denied the relationship between the plaintiff and Kashinath. Defendants No.1 and 2 further contend that the plaintiff has created story and cause of action and filed the present suit only with an intention to harass defendants No.1 and 2. Defendants No.1 and 2 -5- NC: 2024:KHC-D:10769 WP No. 101452 of 2024 further contend that defendants No.3 and 4 have filed suit against defendants No.1 and 2 seeking recovery of possession measuring 4x62 feet in O.S.No.241/2008 before this Court and the same has been dismissed and the same is also affirmed in R.A.No.36/2009. Defendants No.3 and 4 admitted portion of the possession over the suit property and hence they have colluded with the plaintiff and filed the present suit against defendants No.1 and 2 and there is no any encroachment by them and hence prayed the Court to dismiss the application.
7. The Trial Court having considered the grounds urged in the application and also the contention of the defendants No.1 and 2, allowed the application and restrained the defendants No.1 and 2 from further construction over the 'EFCD' area of property.
8. Being aggrieved by allowing of the application, Misc. Appeal No.2/2022 was filed by the defendants No.1 and 2 before the Senior Civil Judge and CJM, Koppal. The said Court having considered the grounds urged in the -6- NC: 2024:KHC-D:10769 WP No. 101452 of 2024 appeal memo and having taken note of the measurement which has been stated in the plaint as well as Form No.3 and also the earlier suit filed by defendants No.3 and 4 against defendants No.1 and 2, comes to the conclusion that when the suit filed by defendants No.3 and 4 in O.S.No.241/2008 was dismissed and confirmed as also taking into note of the construction made by the plaintiff to the entire extent of property belonging to the plaintiff, comes to the conclusion that there was no any encroachment and the construction put up by the defendants No.1 and 2 is also not in the property of the plaintiff and set aside the order passed on the application and reversed the findings of the Trial Court and consequently dismissed the application filed under Order XXXIX Rule 1 and 2.
9. Being aggrieved by the said reversal of the order passed by the First Appellate Court, the present petition is filed before this Court.
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NC: 2024:KHC-D:10769 WP No. 101452 of 2024
10. The main contention of the petitioner before this Court is that she is the class-II heir of the original owner Kashinath and she is the owner of the landed property situated at Ghasi Bazar, Koppal bearing MB No.13-1-9-14 measuring totally 137.96 sq.mtrs. and she has also produced the RTC and other documents to establish that she is claiming declaration that she is the owner of the suit schedule property and defendants No.1 and 2 have illegally started the construction of new building making encroachment to the extent of 3x67 sq.ft.
11. The Trial Court having considered the material and record has rightly granted the relief of temporary injunction and the First Appellate Court has committed an error in coming to the conclusion that already the plaintiff has constructed the entire property and no portion is left in the property and hence the question of encroachment does not arise, which finding is erroneous.
12. Learned counsel for the petitioner would vehemently contend that the learned Judge failed to -8- NC: 2024:KHC-D:10769 WP No. 101452 of 2024 consider the material on record and the reasoning given by the First Appellate Court is contrary to the discussion made by the Trial Court while allowing the appeal. The First Appellate Court ought to have considered the material on record and committed an error and hence this Court has to grant an interim order to restore the order of the Trial Court in granting the relief of temporary injunction against defendants No.1 and 2. He further submits that if the defendants No.1 and 2 are allowed to continue to put up the construction, the plaintiff's rights will be prejudiced.
13. The counsel also vehemently contends that while reversing the finding of the Trial Court, the First Appellate Court has committed an error in considering the earlier judgment of dismissal of the suit filed by defendants No.3 and 4. The counsel also vehemently contends that even this Court can give a direction to the Trial Court to dispose of the matter in a time bound period -9- NC: 2024:KHC-D:10769 WP No. 101452 of 2024 and if construction is made, thereafter the same cannot be set-righted later.
14. Per contra, the counsel appearing for the respondents/defendants No.1 and 2 would vehemently contend that the Trial Court failed to consider the material on record and First Appellate Court having considered the material and record, passed the reversal order and reasons are also assigned taking into note of the claim made by the plaintiff to the extent of her property and also taken note of Form No.3, which also clearly discloses that whatever the property she was having, she had put up the construction to the entire extent of 137 square meters and she has not left any open space and hence the question of construction by making encroachment does not arise.
15. Even the First Appellate Court also taken note of the earlier suit filed by the defendants No.3 and 4 against the defendants No.1 and 2 wherein also they claimed encroachment to the extent of 4x67 sq.ft. and the said claim is also rejected. Hence, now the question of
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NC: 2024:KHC-D:10769 WP No. 101452 of 2024 considering the encroachment once again does not arise and the material has been properly considered by both the Courts.
16. Having heard the petitioner's counsel and also the counsel appearing for the respondents No.1 and 2 and having considered the plaint averments, the measurement shown in the plaint in paragraph No.1 of page No.2 totally measures 22 sqft east-west and north-south 67 sq.ft and there is no dispute with regard to the total measurement i.e. 137.960955 sq.meters. Having taken note of Annexure-L produced by the petitioner before this Court i.e. Form No.3, the same discloses that the very total construction of plinth area is also 137.960955 sq.meters and the measurement of site is also 137.960955 sq.meters. The same is taken note of by the First Appellate Court while considering the miscellaneous appeal and the First Appellate Court comes to the conclusion that total extent of site area is also constructed to the entire 137.960955 sq.meters. Apart from that, the First
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NC: 2024:KHC-D:10769 WP No. 101452 of 2024 Appellate Court also taken note of the earlier proceedings in O.S.No.241/2008 between the defendants No.3 and 4 who are the relatives of the plaintiff, wherein the defendants No.3 and 4 have made claim of the encroachment to the extent of 3x67 square feet showing the same area as 'EFCD'.
17. The Trial Court having considered the material and record comes to the conclusion that there was no such any encroachment made by the defendants No.1 and 2 and dismissed the suit and the same is confirmed in R.A.No.36/2009 and the hence the same is nothing but a second round of litigation by the plaintiff making the very same claim and seeking an order of temporary injunction restraining the defendants No.1 and 2 not to put up any construction contending that there is an encroachment.
18. When the First Appellate Court having reassessed the material available on record, i.e. the area which has been mentioned in the plaint and considering the description mentioned in the plaint as well as Form
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NC: 2024:KHC-D:10769 WP No. 101452 of 2024 No.3, taken note of the entire construction made by the plaintiff to the extent of 137.960955 square meters, I.A. filed by the defendants No.1 and 2 before the Trial Court seeking an order to measurement of the area was allowed.
19. When such being the case and when the application was filed under Order XXXIX Rules 1 and 2 of CPC by the plaintiff and defendants No.1 and 2 have also filed filed an application under Order XXXIX Rule 7 of CPC, the Trial Court ought not to have entertained the application filed under Order XXXIX Rules 1 and 2 of CPC granting the relief of the temporary injunction and ought to have waited even for the measurement and the same has not been done.
20. The First Appellate Court considering the fact that when the plaintiff prima facie has not made out any case with regard to the encroachment is concerned and having considered Form No.3, held that the when entire extent has been constructed, it is nothing but a second round of litigation at the instance of the plaintiff and
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NC: 2024:KHC-D:10769 WP No. 101452 of 2024 though defendants No.3 and 4 have also earlier made a similar claim against the defendants No.1 and 2, the same has been appreciated by the First Appellate Court and Trial Court committed an error in making an observation in paragraph No.16 with regard to the encroachment is concerned and unless prima facie material is placed before the Court that there was an attempt to make the encroachment, the Trial Court ought not to have granted the relief of temporary injunction, which has been rightly reversed by the First Appellate Court.
21. Having considered the material on record, I do not find any error committed by the First Appellate Court in reversing the finding of the Trial Court and hence there is no merit in reversing the findings of the First Appellate Court when the First Appellate Court has in detail discussed the material and record.
22. Having considered the pleadings of the plaint with regard to the description of the property and Form No.3, they clearly disclose that the entire extent of
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NC: 2024:KHC-D:10769 WP No. 101452 of 2024 building has been constructed and apart from that an earlier attempt in the earlier suit was also made by defendants No.3 and 4 stating that the defendants No.1 and 2 have attempted to encroach the property of the plaintiff.
23. When such being the case and when the defendants themselves have approached the Court by filing an application under Order XXXIX Rule 7 of CPC for an order of measurement, unless the said report is placed before the Court, the Trial Court ought not to have entertained the application filed under Order XXXIX Rules 1 and 2 of CPC and hence I do not find any merit in the writ petition to reverse the findings of the First Appellate court and hence the writ petition is liable to be dismissed.
24. In view of the discussions made above, the following order is passed:
ORDER The writ petition is dismissed.
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NC: 2024:KHC-D:10769 WP No. 101452 of 2024 Having considered the suit is of the year 2022, the Trial Court is directed to dispose of the suit on merits within one year from today.
I.A.No.1/2024 filed under Order XLI Rule 27 of CPC seeking to produce additional documents by the petitioner does not survive for consideration since the report is filed subsequent to passing of the order under Order XXXIX Rules 1 and 2 of CPC.
Sd/-
(H.P.SANDESH) JUDGE SH CT-MCK List No.: 1 Sl No.: 25