N Malleshappa vs H M Eshwarappa
2022 Latest Caselaw 92 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 4TH DAY OF JANUARY, 2022

                        BEFORE

    THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

    WRIT PETITION NO.53187 OF 2018 (GM-CPC)

BETWEEN:

N.MALLESHAPPA
S/O. LATE RUDRAPPA
AGED ABOUT 64 YEARS
R/AT ARAHATHOLALU VILLAGE
BHADRAVATHI TALUK - 577 301
REPRESENTED BY HIS GPA HOLDER
M.KIRAN KUMAR
S/O. N. MALLESHAPPA
AGED ABOUT 24 YEARS
R/AT ARAHATHOLALU VILLAGE
BHADRAVATHI TALUK - 577 301
                                       ... PETITIONER
(BY SRI S.N.BHAT, ADVOCATE)

AND:

H.M. ESHWARAPPA
S/O. MALLAPPA
AGED ABOUT 54 YEARS
R/AT HANUMATHAPURA VILLAGE
HOLEHONNUR HOBLI
BHADRAVATHI TALUK - 577 301
                                       ... RESPONDENT

(BY SRI RAMACHANDRA R. NAIK, ADVOCATE)

       THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO ALLOW THIS
PETITION BY SETTING ASIDE THE ORDERS PASSED BY THE
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ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, BHADRAVATHI
DTD: 07.11.2018 IN M.A.NO.6/2018 VIDE ANNX-H, ETC.,


      THIS WRIT PETITION COMING ON FOR 'PRELIMINARY
HEARING' THIS DAY, THE COURT MADE THE FOLLOWING:


                            ORDER

The petitioner being aggrieved by the Judgment

dated 07.11.2018 passed in M.A. No.6/2018 by the Addl.

Senior Civil Judge and JMFC at Bhadravathi has preferred

this writ petition.

2. Brief facts leading to the filing of this petition

are as under:

The petitioner filed a suit in O.S. No.192/2017 before

the I Addl. Civil Judge and JMFC at Bhadravathi, seeking

for relief of perpetual injunction. In the said suit, the

petitioner filed an application seeking for an order of

temporary injunction restraining the respondent from

interfering in his peaceful possession over the suit

schedule property. The Trial Court vide its Order dated

08.01.2018 allowed the application filed by the petitioner.

The respondent being aggrieved by the Order dated

08.01.2018 passed on I.A. 2, preferred a Miscellaneous

Appeal in M.A. No.6/2018 before the Additional Senior Civil

Judge and JMFC, Bhadravathi. The Appellate Court after

hearing the parties, allowed the appeal filed by the

respondent vide Judgment dated 07.11.2018. The

petitioner being aggrieved by the same has filed this writ

petition.

3. Heard the learned counsel for the petitioner

and the learned counsel for the respondent.

4. Learned counsel for the petitioner submits that

the petitioner has not admitted that the defendant has

made an encroachment in the suit property. The Appellate

Court has wrongly observed in the impugned order about

the alleged encroachment by the defendant. Hence he

submits that the said observation is contrary to the

contents of the plaint. He further submits that the

Appellate Court has committed an error in passing the

impugned order. Hence, on these grounds, he prays to

allow the writ petition.

5. Per contra, learned counsel for the respondent

supports the impugned order.

6. I have perused the records and considered the

submissions of the learned counsel for the parties.

7. It is the case of the petitioner that there was a

partition in the family of the petitioner and the said

partition was reduced into writing and same was registered

on 23.11.1998 and in order to support his contention,

petitioner has produced copy of the partition deed dated

23.11.1998 and also produced copy of RTC extracts for the

year 1969 to 2000 and also form V and VI pertaining to old

Sy. No.73 of Hanumanthapura Village. The said land was

granted in favour of the grandfather of the petitioner under

Saguvali Chit dated 08.01.1957 measuring to an extent of

four acres. After the demise of petitioner's grandfather,

the property was transferred in the names of Rudrappa

and Basappa who in turn effected the partition deed dated

23.11.1998. The petitioner has produced old records to

show that the petitioner is the owner of suit property. The

Trial Court recorded a finding that the petitioner is in

possession of the suit property as on the date of filing the

suit. The Appellate Court has made an observation in the

impugned order that "Further plaintiff in his plaint itself

has deposed that in between his property and the property

of the defendant there passes channel and that defendant

by encroaching the said channel has raised areca and

other plants in the said encroached area." Merely on the

basis of the said observation the First Appellate Court has

allowed the appeal, set aside the order passed by the Trial

Court.

8. I have perused the copy of the plaint produced

by the petitioner. From the perusal of the plaint, it

discloses that the plaintiff has never admitted that the

respondent has made an encroachment in the suit land.

Further the Appellate Court has further recorded a finding

that though from the registered document it can be

gathered that the plaintiff and his brother are the owners

of 28 guntas of land in Sy. No. 148/3 which is the

remaining extent of land in 2.24 acres, after sale of 1.36

acres and further recorded a finding that the plaintiff has

failed to prove that he is in actual possession and

enjoyment of the suit schedule property. The said finding

recorded by the First Appellate Court is contrary to the

records. The petitioner has produced the copy of partition

deed, registered sale deed and also RTC records. The said

records disclose that the petitioner is the owner of suit

property to the extent of 28 guntas. The Appellate Court

has committed an error in passing the impugned order.

Further the respondent submits that he has produced two

documents along with the memo. The said documents are

relevant for deciding the matter in dispute.

9. As observed above, the finding recorded by the

First Appellate Court is contrary to the records. This Court

feels that the impugned order requires to be set aside and

the matter requires to be reconsidered by the First

Appellate Court.

Accordingly the writ petition is allowed. The

impugned order dated 07.11.2018 passed in M.A.

No.6/2018 by Addl. Senior Civil Judge and JMFC,

Bhadravathi is set aside. The matter is remanded to the

Appellate Court to reconsider the appeal and pass

appropriate order in accordance with law.

Meanwhile, the parties are directed to maintain

status-quo with regard to the suit property till the disposal

of the appeal by the Appellate Court.

Registry is directed to transmit a copy of this Order

along with the concerned records to the Appellate Court,

forthwith.

Sd/-

JUDGE

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