Kallappa Rachappa Kiwad vs Mahadev Satappa Kiwad
2021 Latest Caselaw 6156 Kant

        IN THE HIGH COURT OF KARNATAKA
                DHARWAD BENCH

DATED THIS THE 15TH DAY OF DECEMBER, 2021

                     BEFORE

    THE HON'BLE MRS.JUSTICE M.G.UMA

          M.F.A.NO.100741/2021 (CPC)

   BETWEEN

   1.     KALLAPPA RACHAPPA KIWAD
          AGE. 65 YEARS,
          OCC. AGRICULTURIST,
          R/O. DONWAD,
          TQ. CHIKODI,
          DIST. BELAGAVI
          PIN CODE-591226

   2.     RAJASHEKHAR KALLAPPA KIWAD
          AGE. 37 YEARS,
          OCC. AGRICULTURIST,
          R/O. DONWAD,
          TQ. CHIKODI,
          DIST. BELAGAVI,
          PIN CODE-591226
                                       ... APPELLANTS
   (BY SRI VITTHAL S TELI, ADV.)

   AND

   1.     MAHADEV SATAPPA KIWAD
          AGE. 60 YEARS,
          OCC. AGRICULTURIST,
          R/O. DONWAD,
          TQ. CHIKODI,
          DIST. BELAGAVI,
          PIN CODE-591226

   2.     SUSHEELA MAHADEV KIWAD
          AGE. 55 YEARS,
                           2




           OCC. AGRICULTURIST,
           R/O. DONWAD,
           TQ. CHIKODI,
           DIST. BELAGAVI,
           PIN CODE-591226

      3.   VITHOBA KALLAPPA KIWAD
           AGE. 35 YEARS,
           OCC. AGRICULTURIST,
           R/O. DONWAD,
           TQ. CHIKODI,
           DIST. BELAGAVI,
           PIN CODE-591226.

      4.   MALLAPPA KALLAPPA KIWAD
           AGE. 48 YEARS,
           OCC. AGRICULTURIST,
           R/O. DONWAD,
           TQ. CHIKODI,
           DIST. BELAGAVI,
           PIN CODE-591226

      5.   RAJU SHANKAR KIWAD
           AGE. 27 YEARS,
           OCC. AGRICULTURIST,
           R/O. DONWAD,
           TQ. CHIKODI,
           DIST. BELAGAVI,
           PIN CODE-591226
                                       ... RESPONDENTS

(BY   SRI V.M.SHEELVANT ADV. FOR RESPONDENT NO.2
      NOTICE TO R3 & 4: IS HELD SUFFICIENT)

      THIS MISCELLANEOUS FIRST APPEAL FILED UNDER
ORDER XLIII RULE 1(R) OF CODE OF CIVIL PROCEDURE, 1908
AGAINST THE ORDER DATED 01.03.2021 PASSED IN
O.S.NO.109/2020 ON THE FILE OF THE PRINCIPAL SENIOR
CIVIL JUDGE, CHIKODI, ALLOWING THE IA NO.1 FILED U/O.
XXXIX RULE 1 AND 2 R/W SECTION 151 OF CPC.

     THIS APPEAL COMING ON FOR THIS APPEAL HAVING
BEEN HEARD AND RESERVED FOR JUDGMENT ON 06.12.2021
COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
                                    3




                           : JUDGMENT :

Defendant Nos.1 and 3 in O.S.No.109/2020 on

the file of the Principal Senior Civil Judge Court at

Chikkodi ("the Trial Court" for short) are before this

Court challenging the impugned order dated

01.03.2021 allowing I.A.No.1 filed under Order XXXIX

Rules 1 and 2 read with section 151 of the Code of

Civil Procedure, 1908 ("CPC" for short) and

restraining defendant Nos.1 to 5 by way of temporary

injunction restraining them from interfering with

peaceful possession and enjoyment of the suit

schedule properties in any manner, until further

orders.

2. Brief facts of the case are that, the

plaintiffs/respondent Nos.1 and 2 have filed the suit

in O.S.No.109/2020 before the Trial Court against

defendant Nos.1 to 5 i.e., appellant Nos.1 & 2,

respondent No.3 & 4 and defendant No.2 against

whom the suit is already dismissed as not pressed

before the Trial Court, seeking declaration that the

plaintiffs are the absolute owners of the suit schedule

properties and consequential relief of permanent

injunction restraining the defendants, there men etc.,

from causing obstruction to the plaintiffs in enjoying

the suit schedule properties.

3. During the pendency of the suit, I.A.1 was

filed by the plaintiffs under Order XXXIX Rules 1 and

2 read with section 151 of CPC praying for grant of

temporary injunction against the defendants as

prayed for. The said application was allowed under

the impugned order, which is being challenged here.

4. Heard Sri Vittthal S.Teli, learned counsel

for the appellants and Sri V.M.Sheelvant for

respondent No.2 and perused the materials on record.

5. Learned counsel for the appellants

submitted that, initially the properties were belonging

to the common ancestor i.e., Sri Basappa. The

plaintiffs and defendants who are the owners of their

respective properties are enjoying the same as per

the boundaries that were in existence. The property

belonging to the plaintiffs is separated from the

property belonging to the defendants as there existed

a bund, which is the boundary for enjoyment of the

properties. The portion of the bund is already

dismantled by the plaintiffs. Since there was

boundary dispute between the parties, an application

was moved for surveying the land and to fix the

boundary by Taluka Surveyor. Accordingly, the

property was surveyed and the PT.Sheet was drawn.

Plaintiff No.1 challenged the said order before the

Assistant Registrar of Land Records, Chikkodi ("ADLR"

for short). Who allowed the appeal filed by plaintiff

No.1 and the PT.Sheet drawn by the Taluka Surveyor

was set aside. However, the parties were directed to

challenge the earlier phodi before the Deputy Director

of Land Records ("DDLR" for short). Accordingly, the

parties to the suit have challenged the earlier phodi

by preferring an appeal before the DDLR during 2019-

20. The said appeal was came to be allowed vide

order dated 10.10.2019 and an order was passed for

fresh phodi in R.S.No.44, in which, the schedule

property is a part. Accordingly the Taluka Surveyor

again measured the land and fresh phodi was effected

as per PT.Sheet in respect of R.S.No.44/1 and

R.S.No.44/7. The land belonging to plaintiff No.1 was

assigned R.S.No.44/3 which is measuring 3.17 acres

and the land belonging to plaintiff No.2 is assigned

R.S.No.44/4 measuring 1.7 acres.

6. It is stated that the defendants are the

owners of the adjoining land which is renumbered as

R.S.No.44/5 measuring 3.38 acres. The defendants

disputed the phodi before the ADLR and also filed an

application for review of the order passed by the

DDLR, before the Deputy Commissioner, Belagavi.

Since, there is a boundary dispute between plaintiff

No.1 and defendant No.1 they have entered into a

written agreement dated 13.08.2018 even though the

surveys were undertaken and PT.Sheets were drawn,

the same was disputed by either parties. But

however, during survey it was disclosed that the

plaintiffs have encroached 3½ guntas of land

belonging to defendant No.1. Even though survey was

conducted, the proper boundary was not fixed. The

bund which was demarcating the land belonging to

the plaintiffs and the defendants is partially

dismantled by the plaintiffs. However, the Trial Court

ignoring all these facts and circumstances, proceeded

to pass the impugned order granting temporary

injunction against the defendants.

7. Learned counsel further submitted that,

the plaintiffs had filed O.S.No.79/2020 seeking similar

relief of permanent injunction before the Principal

Civil Judge & JMFC Court at Chikodi. A similar

application in I.A.No.1 was filed under Order XXXIX

Rules 1 and 2 read with section 151 of CPC seeking

temporary injunction. The said application was came

to be dismissed vide order dated 10.09.2020,

specifically holding that the plaintiffs have not proved

their prima facie possession over the suit schedule

property and therefore they are not entitled for grant

of temporary injunction. Subsequently, the suit in

O.S.No.79/2020 was not pressed and the same came

to be dismissed. Thereafter the present suit was filed

seeking declaration and injunction against the

defendants. When the plaintiffs were unsuccessful in

getting temporary injunction in O.S.No.79/2020, they

cannot seek similar relief once again by filing the suit

afresh.

8. Learned counsel contended that, the

parties are growing their crops in their respective

lands and they can continue to enjoy their properties

as it is. But grant of temporary injunction in favour of

the plaintiffs will disturb the possession of the land

and it will give handle to the plaintiffs to dismantle

the entire bund which is in existence to demarcate

the two lands. Therefore the learned counsel for the

appellants prays for allowing the appeal and to set

aside the impugned order passed by the Trial Court.

       9.     Per     contra,     learned     counsel    for     the

respondents          supporting       the     impugned         order

submitted that, existence of the bund between the

two lands is admitted. The survey sketch drawn by

the surveyor after surveying the land R.S.No.44

discloses the various sub-divisions drawn in the said

land. The schedule properties owned by plaintiff Nos.1

and 2 are also shown in the said sketch. It is not in

dispute that the properties belonging to the

defendants and the plaintiffs were demarcated by a

bund. Under such circumstances, the defendants

cannot claim that they were cultivating the land in

question beyond the bund, which is admittedly in

existence. When the plaintiffs filed the suit for

declaration, the suit properties are to be preserved as

it is. The impugned order granting temporary

injunction is a well reasoned order and it will not

prejudice any of the parties to the suit. If on the other

hand, the impugned order is set aside that will

encourage the defendants to encroach over the

properties that are in possession of the plaintiffs

forcibly without recourse to law. Therefore, he prays

for dismissal of the appeal as the impugned order will

enable the parties to maintain status-quo, by

restraining the defendants not to interfere with the

enjoyment of the schedule property till further orders.

In view of the same, learned counsel for the plaintiffs

prays for dismissal of the appeal as devoid of merits.

10. Perused the materials on record.

11. In the light of the rival contentions of

learned counsel for both the parties, the point that

would arise for consideration of this Court is as

follows:

"Whether the impugned order dated 01.03.2021 passed on I.A.No.1 in

O.S.No.109/2020 by the Trial Court calls for any interference by this Court?"

12. My answer to the above point is in the

negative for the following reasons.

: REASONS :

13. On perusal of the materials that are placed

before the Court in the light of the rival submissions,

it is clear that the plaintiffs have filed O.S.No.79/2020

for a decree of permanent injunction in respect of the

very same schedule property and an application in

I.A.No.1 under Order XXXIX Rules 1 and 2 was filed

seeking similar relief which is sought now under

I.A.No.1. The said application was came to be

rejected by the Trial Court by holding that the

plaintiffs are not successful in proving their prima

facie possession over the schedule lands. It was also

observed that, admittedly there is a boundary dispute

between the parties and even though the PT.Sheet

was drawn after survey, the same is not yet been

finalized. Therefore, the PT.Sheet that was relied on

by the plaintiffs cannot be the basis to seek

temporary injunction that too in a suit filed for bare

injunction. Thereafter admittedly, the suit was not

pressed by the plaintiff with permission to file a

comprehensive suit. Subsequently, O.S.No.109/2020

was filed seeking declaration over the suit schedule

property and also for permanent injunction. In this

suit, application in I.A.No.1/2020 was filed seeking

temporary injunction against the defendants which

was came to be allowed by the Trial Court.

14. During the course of arguments, learned

counsel for the plaintiffs submitted that the plaintiffs

will undertake to retain the bund as it is and they will

enjoy their property up to the bund in question. Of

course the same would be subject to the final result

of the suit pending before the Trial Court. However,

learned counsel for the appellants/defendant Nos.1

and 3 even though admits the existence of the bund

in question and even though submits that the

defendants are enjoying the properties up to the bund

objects for the impugned order solely on the ground

that the earlier application filed by the plaintiffs in

O.S.No.79/2020 was already dismissed.

15. From the materials on record, it is clear

that the properties were originally owned by a

common ancestor i.e., Late Basappa and

subsequently and the property was sub-divided and

being enjoyed by various sharers/ purchasers. Even

though there is a boundary dispute between the

plaintiffs and defendants, the existence of the bund in

question is not in dispute. When both the parties

admit the existence of the bund as boundary to their

respective lands, I do not find any reason as to why

the defendants should find fault with the Trial Court,

which granted temporary injunction restraining the

defendants from interfering with the plaintiffs'

possession and enjoyment of the suit schedule

property till the disposal of the suit.

16. It is pertinent to note that the learned

counsel for the plaintiffs submitted that the plaintiffs

are ready and willing to get the Court Commissioner

appointed to survey the lands in question with the

assistance of the surveyor to put an end to the

litigation and to get a final verdict from the Court.

When admittedly there is boundary dispute between

the parties who own the land adjacent to one

another, appointment of the Court Commissioner

assisted by surveyor and getting report from him

would help the Trial Court in appreciating the

contentions of the parties in a better manner. Till that

exercise is done and the evidence of the parties were

recorded, the properties in question are to be

preserved as it is.

17. Under such circumstances, I do not find

any reason to reject the claim of the plaintiffs for

grant of temporary injunction. Even though there is

boundary dispute between the plaintiffs and

defendants, it is not in dispute that the parties to the

lis are in possession of their respective bits of land

except a portion of the land which is in dispute.

Vacating of the temporary injunction granted by the

Trial Court would definitely lead to the further

complications in the matter, which will not be in the

best interest of any of the parties to the litigation.

18. I have gone through the impugned order

passed by the Trial Court, It has discussed at length

regarding the contentions taken by both the parties in

the suit. It has also observed that there is a bund i.e.,

existing in between the lands belonging to plaintiffs

and defendants, since time immemorial. Further it is

observed that if the plaintiffs have encroached any

portion of the land belonging to the defendants, it is

for them to take necessary steps to recover

possession of the said land in accordance with law.

But they cannot take the law into their own hand to

dispossess the plaintiffs even if there is

encroachment. I do not find any reason to differ with

the Trial Court with such opinion, when the

defendants admit that, the plaintiffs are the owners of

the schedule properties, of-course subject to the

measurement of the land and fixation of the

boundaries, the impugned order passed by the Trial

Court will preserve the property as it is, till disposal of

the suit.

19. Therefore, I do not find any reason to

entertain this appeal. Hence, I answer the above

point in the 'negative' and accordingly the above

appeal is dismissed.

Sd/-

JUDGE EM