Siddappa vs Manjappa
2022 Latest Caselaw 8084 Kant

                        1


  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 3RD DAY OF JUNE, 2022

                     BEFORE

THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

   WRIT PETITION NO. 13233 OF 2014(GM-CPC)

BETWEEN:

SIDDAPPA
S/O THOTADA MANJAPPA
AGED ABOUT 60 YEARS,
R/AT HONNANAVIILE VILLAGE,
TALUK & DISTRICT SHIMOGA-577201

                                      ...PETITIONER

(BY SRI.ARAVIND.C.DESAI, ADVOCATE)

AND:

1. MANJAPPA
S/O HANUMANTHAPPA
AGED ABOUAT 62 YEARS
R/AT HONNANAVIILE VILLAGE,
TALUK & DISTRICT SHIMOGA-5777201

2. NINGAPPA
S/O THOTADA MANJAPPA
W/O KARIYAPPA
AGED ABOUT 43 YEARS,
R/AT HONNAVILE VILLAGE,
TALUK & DISTRICT SHIMOGA-577201

                                     ...RESPONDENTS
                                   2


(BY SRI.R GOPAL, ADVOCATE FOR R1;
V/O DATED: 19.03.2014 NOTICE TO R2 D/W)

     THIS PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
BOTH THE ORDERS DTD.19.12.2013 PASSED ON I.A.NO.7
AND THE ORDER PASSED ON THE MAIN EXECUTION
PETITION.NO.110/2009 PENDING ON THE FILE OF THE II
ADDL. CIVIL JUDGE AND JMFC, SHIMOGA UNDER ANNEX-
G AND H BY ISSUE OF WRIT OF CERTIORARI.

     THIS PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:

                            ORDER

The captioned writ petition is filed by the

petitioner-first defendant-judgment debtor No.1

questioning the order of the Executing Court passed

on I.A.No.7 by over ruling the objections.

2. For the sake of convenience, the parties

are referred to as per their rank before the Trial Court.

3. The plaintiff instituted a suit in

O.S.No.184/1994 for bare injunction to restrain the

defendants from interfering with his peaceful

possession and enjoyment of the suit schedule

property. The subject-matter of the suit is an

agricultural land bearing Survey No.28 measuring 1

acre 10 of Honnavile village guntas. The defendants

are the adjoining owners. The cause of action to

institute the suit was on account of interference by the

defendants in the month of March 1994.

3(a) Defendants on receipt of summons

tendered appearance and filed written statement and

stoutly denied the claim made by the plaintiff. The

defendant stoutly denied the boundaries and extent

described by the plaintiff. The defendants specifically

contended that the entire survey number measures 3

acres 18 guntas and there are 10 to 15 members who

are cultivating the land. The defendants specifically

contended that plaintiff is in possession of only 30

guntas.

3(b) The Trial Court having appreciated the oral

and documentary evidence decreed the suit by

recording a categorical finding that the plaintiff is in

lawful possession over the suit schedule land bearing

Survey No.28 measuring 1 acre 10 guntas. Feeling

aggrieved by the said judgment and decree, the

defendants preferred an appeal in R.A.No.73/2004.

The said appeal was also dismissed thereby the

judgment and decree passed by the Trial Court was

confirmed.

3(c) The plaintiff alleging violation of the

perpetual injunction granted by the trial Court in

O.S.No.184/1994 filed execution petition. In the said

execution proceedings, the defendants on receipt of

notice appeared and contested the proceedings by

filing detailed objections. The defendants specifically

contended that the present execution petition is not at

all maintainable in the absence of clinching material

indicating that the decree is violated by them. They

also contended that there is absolutely no material on

record to enable the executing Court to ascertain the

allegations in regard to violation of the decree.

3(d) From the records, it is forthcoming that

with the consent of the parties, the Court

Commissioner was appointed. A specific defence was

taken by the defendants that they have not violated

the decree passed in O.S.No.184/1994 and that in

terms of the memo of instructions, the Court

Commissioner has surveyed and submitted his report

and the same is produced at Annexure-E1. On receipt

of survey report, the defendants moved an application

in I.A.No.7 under Section 47 of CPC. The Executing

Court having perused the Commissioner's report found

that defendant No.2 has encroached to an extent of

one gunta which is marked as "CPOC" while defendant

No.1 had encroached to an extent of three guntas

marked as "ABMLKA". The executing Court having

gone through the material on record has not acceded

to the contention raised by defendants. The

defendants had taken a contention that the plaintiff is

not at all in possession of the said extents and

therefore, there is no violation. This contention was

out rightly rejected by the Executing Court referring to

the decree passed in O.S.No.184/94. The Executing

Court felt that an inference has to drawn that it was

only subsequent to the decree, the defendants have

ventured to encroach upon the aforesaid extent of

land. Referring to the survey report, the Executing

Court has come to the conclusion that in view of

encroachment being established in terms of the

Commissioner's report, the application filed in

I.A.No.7 would not survive for consideration and there

is nothing to be adjudicated between the parties under

Section 47 of CPC. The Executing Court having

accepted the Commissioner's report and consequently

having rejected I.A.No.7 has proceeded to issue

delivery warrant after over-ruling the objections

tendered by defendants to the main petition. The

material on record would also indicate that possession

was delivered to the plaintiff on 18.3.2014 and

consequently, execution petition was closed as fully

satisfied.

3(e) Being aggrieved by the order of the

executing Court over-ruling the objections and

consequent order passed on I.A.No.7, the first

defendant has preferred this writ petition.

4. The learned counsel for the first defendant-

petitioner herein would straight away bring to the

notice of this Court that a Co-ordinate Bench of this

Court has allowed W.P.No.47020/2014 and thereby

the matter is remanded back to executing Court to

reconsider the prayer sought in I.A.No.8. Therefore,

the learned counsel would contend that unless the

executing Court decides I.A.No.8, this Court cannot

hear the present petition and decide the lis between

the parties. He would further contend that the

Executing Court has exceeded its jurisdiction in

ordering for delivery of possession of encroached

portion and therefore, the same is liable to be set

aside. He would point out that the Executing Court

has failed to look into the scope of present execution

petition. Therefore, the impugned order suffers from

irregularity and the same is liable to be set aside by

this Court.

5. Per contra, the learned counsel appearing

for plaintiff-first respondent herein would contend that

the perpetual injunction granted by the competent

Civil Court in O.S.No.184/94 thereby restraining the

defendants from interfering with plaintiff's peaceful

possession and enjoyment over the suit schedule

property has attained finality in view of the dismissal

of R.A.No.73/2004. Referring to the provisions of

Order XXI Rule 32(5) of CPC, he would point out and

contend that in view of 2002 amendment, the

expression "the acts required to be done" covers

prohibitory as well as mandatory injunctions. Though

the plaintiff had the benefit of perpetual injunction, on

account of deliberate violation by the defendants, the

execution petition was very much maintainable and it

was well within the authority of the Executing Court in

holding an enquiry to ascertain the encroachment

made by the defendants. Therefore, based on the

Commissioner's report and having found that both the

defendants have encroached an extent of 4 guntas

has rightly ordered for restoration of possession. He

would contend that the plaintiff was put in possession

way back in 2014 and therefore, the entire exercise at

the instance of the defendants is only an harassment

to the plaintiff. He would point out that the contention

of the defendants that the plaintiff is in possession of

only 30 guntas was rightly negatived by the Trial

Court in O.S.No.184/94. Therefore, the defendants

cannot re-litigate on the same cause of action, which

was put to rest by the judgment and decree dated

28.8.2004 in O.S.No.184/94. To buttress his

arguments, he has placed reliance on the following

decisions:

1.Gundila Manjappa Shetty .vs. Manjakke Shedthi and other [AIR 1961 MYSORE 268]

2.Banwari Lal .vs. Municipal Committee, Kanina [AIR 2007 PUNJAB AND HARYANA 54]

3.The State of Bihar .vs. Usha Devi and another [AIR 1956 PATNA 455]

4.Satish Chandra Maity .vs. Smt. Saila Bala Dassi and other [AIR 1978 CALCUTTA 499]

6. Heard the learned counsel for the

petitioner-defendant No.1 and the learned counsel for

the first respondent-plaintiff. Perused the order under

challenge.

7. By judgment and decree dated 28.8.2004

passed in O.S.No.184/1994, the defendants are

restrained from interfering with plaintiff's peaceful

possession and enjoyment over the suit schedule

property. The schedule clearly indicates that plaintiff is

found to be in possession to an extent of 1 acre 10

guntas in Survey No.28. This decree has attained

finality. In view of dismissal of R.A.No.73/2004, the

plaintiff filed execution petition by specifically

contending that the defendants' have violated the

decree for perpetual injunction and with the consent

of both the parties, the Commissioner was appointed.

The Deputy Director of Land Records, after notice to

both the parties has carried out survey and submitted

the report which clearly indicates that present

petitioner-first defendant has encroached three guntas

whereas second defendant-judgment debtor No.2 has

encroached one gunta. To counter the said survey, no

materials are placed on record. If the competent

authority on survey has found that the petitioner has

encroached 3 guntas, in the absence of overwhelming

evidence which would outweigh the survey report, this

Court under Article 227 of the Constitution of India

cannot sit over the survey report prepared by the

competent authority. The Executing Court has dealt

with the matter and has looked into all minute details

and has rightly over ruled the objections tendered by

the petitioner and consequently, was justified in

rejecting the application filed in I.A.No.7. If the

alleged encroachment is established by the survey, no

other contra material even if produced, could be

looked into. However, in the present case on hand,

the petitioner except bald allegations that they have

not interfered or that they have violated the decree

for perpetual injunction, have not produced any

material to substantiate the defence set up in the

execution proceedings. In that view of the matter, the

order passed by the Executing Court on I.A.No.7 is in

accordance with law. I do not find any error

committed by the Executing Court while rejecting

I.A.No.7. The Executing Court has over ruled the

objections by placing reliance on the survey report

tendered by the competent Court. The order over

ruling the objections is in accordance with law and

does not warrant any interference.

The writ petition is devoid of merits and it

accordingly stands rejected.

Sd/-

JUDGE

*alb/-