Karnataka High Court
Shri.Shivaraj S/O Ramanna Uppar vs Yogendra S/O Bhagwan Mishra on 3 February, 2022
Bench: R Natarajpresided Byrnj
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 3RD DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE R. NATARAJ
MFA NO.103292/2019 (CPC)
C/W. MFA NO.103293/2019 (CPC)
In MFA No.103292/2019:
Between:
1. Shri Shivaraj S/o. Ramanna Uppar,
Age 40 years, Occ: Agriculture,
R/o.: UpparKeri, Shirsi,
Dist.: Uttar Kannada.
2. Shri Hasan S/o. Mohammadli Shikari,
Age 30 years, Occ: Agriculture,
R/o.: Benachi, Dharwad Taluka,
Dist.: Dharwad.
... Appellants
(By Shri J.S. Shetty, Advocate)
And:
1. Yogendra S/o. Bhagwan Mishra,
Age 47 years, Occ: Agriculture,
R/o.: Old Mishra Building,
Tikare Road, Dharwad.
2. Prashant S/o. Ashok Muragod,
Age 40 years, Occ: Agriculture Business,
R/o.: Tejaweeni Nagar, Dharwad.
... Respondents
(By Shri Shivaraj C. Bellakki, Advocate for R1;
Notice to R2 held sufficient)
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This MFA is filed under Order 43 Rule 1(r) of the CPC,
against the order dated 03.08.2019, passed in O.S. No.1/2019
on the file of the Prl. Senior Civil Judge & CJM, Dharwad, allowing
two applications filed under Order 39 Rule 1 and 2 read with
Section 151 of CPC.
In MFA No.103293/2019:
Between:
1. Shri Shivaraj S/o. Ramanna Uppar,
Age 40 years, Occ: Agriculture,
R/o.: UpparKeri, Shirsi,
Dist.: Uttar Kannada.
2. Shri Hasan S/o. Mohammadli Shikari,
Age 30 years, Occ: Agriculture,
R/o.: Benachi, Dharwad Taluka,
Dist.: Dharwad.
... Appellants
(By Shri J.S. Shetty, Advocate)
And:
1. Yogendra S/o. Bhagwan Mishra,
Age 47 years, Occ: Agriculture,
R/o.: Old Mishra Building,
Tikare Road, Dharwad.
2. Prashant S/o. Ashok Muragod,
Age 40 years, Occ: Agriculture Business,
R/o.: Tejaweeni Nagar, Dharwad.
... Respondents
(By Shri Shivaraj C. Bellakki, Advocate for R1;
Respondent No.2 - served)
This MFA is filed under Order 43 Rule 1(r) of the CPC,
against the order dated 03.08.2019, passed in O.S. No.1/2019
on the file of the Prl. Senior Civil Judge & CJM, Dharwad, allowing
two applications filed under Order 39 Rule 1 and 2 read with
Section 151 of CPC.
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These MFAs coming on for Admission, this day, the court
delivered the following:
JUDGMENT
The appeals in MFA Nos.103292/2019 and 103293/2019
are filed by the defendant Nos.2 and 3 in O.S. No.1/2019
pending trial before the Principal Senior Civil Judge and CJM,
Dharwad, challenging an order dated 03.08.2019, by which the
Court granted interim injunction restraining the defendants from
interfering with the plaintiffs peaceful possession and enjoyment
of the schedule property.
2. The parties shall henceforth be referred as they were
arrayed before the Trial Court.
3. A suit in O.S.No.1/2019 was filed for a declaration
that the plaintiff is the owner of the suit property, he having
succeeded to it from his sister-in-law. The defendant No.1
claimed that the sister-in-law of the plaintiff had executed a
power of attorney in his favour and thereafter the defendant
No.1 had conveyed the suit property to defendant No.2 and later
the defendant No.3 purchased the suit property. The defendant
No.1 further claimed that a suit was filed by defendant No.2 in
O.S. No.505/2017 before the II-Additional Civil Judge and JMFC,
Dharwad, where the Court had granted an order of injunction
against the plaintiffs herein. They contended that the plaintiff
challenged the order of injunction in M.A.No.4/2018, which was
also rejected. Thus, the defendants contend that there was an
order of injunction, which was already in force against the
plaintiff.
4. The plaintiff sought for an order of interim injunction
restraining the defendants from interfering with his peaceful
possession and enjoyment of the schedule property and sought
for restraining the defendants from encumbering the suit
schedule property. The plaintiff contended that the general
power of attorney allegedly executed by his sister-in-law in
favour of defendant No.1 was fraudulent and that the notary was
not authorized to admit the execution of the power of attorney
before him. He therefore contended that the power of attorney
itself was fraudulent and hence was not bound by the
encumbrance based on such fraudulent power of attorney. He
also contended that the suit filed by the defendant No.2 in
O.S.No.505/2017 was dismissed for non-prosecution and
therefore there is no order of interim injunction in force.
5. The Trial Court after considering the contention
urged by the parties and taking note of the information secured
by the plaintiff under Right To Information Act, 2005, was of the
prima facie opinion that the notary was not authorized to
evidence the execution of the documents before him and hence
granted an order of injunction restraining the defendants from
interfering with the plaintiff's peaceful possession and enjoyment
of the schedule property. The Trial Court also allowed the
application filed by the plaintiff for an order of injunction
restraining the defendants from encumbering the suit property.
6. Being aggrieved by the aforesaid order, the present
appeals are filed by the defendant Nos.2 and 3.
7. Learned counsel for the defendant Nos.2 and 3
submitted that since the order of injunction granted by the Trial
Court is stayed in these appeals, the status-quo of the property
may be maintained and the Trial Court may be directed to
dispose off the suit on merits. He contended that the Trial Court
has not recorded any finding about the possession of the plaintiff
in the suit schedule property and therefore the impugned order
passed by the Trial Court is based on an assumption that the
plaintiff is in possession.
8. Learned counsel for the plaintiff contended that none
of the parties had disputed the title of Smt.Renuka, the sister-in-
law of the plaintiff under whom both the plaintiff and the
defendants claimed title. Since the power of attorney allegedly
executed by Renuka in favour of defendant No.1 was prima facie
fraudulent, no presumption was attached to such a power of
attorney. Hence, the Trial Court was justified in granting the
order of injunction which was to maintain status-quo between
the parties.
9. I have considered the submissions made by the
learned counsel for the parties and perused the records.
10. It is not in dispute that the suit property is an
agricultural land where there are mango trees that are yielding.
Therefore, it cannot be said that this property is not possessed
by any person. The suit property was earlier owned and
possessed by Smt.Renuka, who is the sister-in-law of the
plaintiff. The plaintiff has alleged that the suit property fell to his
share pursuant to a compromise reported in O.S.No.449/2014.
Therefore, there are shades of evidence which prima facie
indicate that plaintiff is in possession of the suit schedule
property. Since the plaintiff has produced documents before the
Trial Court to indicate that the power of attorney allegedly
executed by Renuka in favour of defendant No.1 was not
genuine, the Trial Court was justified in holding that the plaintiff
had made out a triable case and therefore in order to maintain
status quo between the parties, it was justified in granting the
order of injunction. This Court does not find it necessary to
interfere with the order passed by the Trial Court. Hence, these
appeals are dismissed.
11. However, the interest of the defendants cannot be
compromised since the land in question is capable of yielding
income. Hence, the plaintiff is directed to deposit Rs.40,000/-
every year until the disposal of the suit before the Trial Court.
This amount shall be placed in a fixed deposit by the Trial Court
and shall be released to the person who succeeds in the suit. Any
finding recorded by this Court is only for a limited purpose for
disposal of these appeals and shall not influence the Trial Court
while deciding the suit on merits.
Sd/-
JUDGE
Vnp*/ KGK
