Karnataka High Court
K V Kiran Gowda vs Vaseem Ahamed on 7 March, 2022
Bench: E.S.Indiresh
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 07TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
WRIT PETITION NO.21415 OF 2021 (GM-CPC)
BETWEEN:
1. K.V. KIRAN GOWDA
S/O LATE K.P. VENKATARAMU
AGED ABOUT 37 YEARS
R/AT SRI. LAKSHMIVENKATESHWARA NILAYA,
1ST CROSS, 1ST PHASE,
VISHVESHWARAIAH LAYOUT,
SALAGAME ROAD,
HASSAN CITY,
HASSAN-573 201.
2. ARUN PINTO
S/O LAWRENCE PINTO
AGED ABOUT 44 YEARS
R/AT NO.196, GORUR ROAD,
HANUMANTHAPURA VILLAGE,
AIKAYALAYA COLONY,
KASABA HOBLI,
HASSAN TALUK-573 128.
3. VARADARAJU H.D.
S/O DEVARAJE GOWDA
AGED ABOUT 25 YEARS
R/AT HOTANAHALLIPURA GRAMA,
KUNDURU HOBLI,
ALUR TALUK,
HASSAN DISTRICT-573 128.
2
4. H.A. SUDARSHAN
S/O H.B. ANANTARAJU
AGED ABOUT 53 YEARS
R/AT DODDABASTI ROAD,
HASSAN CITY,
HASSAN-573 201.
5. ASHA BAHUBALI
W/O BAHUBALI JAIN
AGED ABOUT 50 YEARS
R/AT ARALEPETE LANE,
BEHIND SAIYADRI THEATRE,
HASSAN-573 201.
...PETITIONERS
(BY SMT. LOKESHWARI. H.C., ADVOCATE)
AND:
1. VASEEM AHAMED
S/O MOHAMMED LUTF-ULLA
AGED ABOUT 52 YEARS
R/AT HOUSE NO.780,
WARD NO.5, 6TH CROSS,
SAMPIGE ROAD,
HASSAN CITY,
HASSAN-573 201.
2. SOUBHAGYAMMA
W/O LATE H.P. JWALANAIAH
AGED ABOUT 80 YEARS.
3. HAMSARAJ
S/O LATE H.P. JWALANAIAH
AGED ABOUT 65 YEARS.
4. H.J. SUJITH SAHU
S/O LATE H.P. JWALANAIAH
AGED ABOUT 63 YEARS.
3
5. H.J. MANASA
D/O LATE H.P. JWALANAIAH
AGED ABOUT 60 YEARS.
RESPONDENTS 2 TO 5 ARE
R/AT DODDABASTI ROAD,
HASSAN CITY,
HASSAN-573 201.
6. KAMALA DEVI
W/O H.P. DHARANAIAH
AGED ABOUT 65 YEARS.
7. H.D. SAMPATH
S/O H.P. DHARANAIAH
AGED ABOUT 60 YEARS.
8. H.D. VANAMALA
W/O PARASHWANATH
D/O H.P. DHARANAIAH
AGED ABOUT 61 YEARS.
9. H.D. JAYANTHI
W/O VEERENDRA KUMAR
D/O LATE H.P. DHARANAIAH
AGED ABOUT 58 YEARS.
10. H.D. PADMASHREE
W/O VEERENDRA KUMAR
D/O LATE H.P. DHARANAIAH
AGED ABOUT 56 YEARS.
11. VEENA
W/O NAVEEN KUMAR
AGED ABOUT 54 YEARS.
RESPONDENTS 6 TO 11 ARE
R/AT MANUKRUPA,
JAYALAKSHMI NURSING HOME,
VALMIKI CITY,
TUMAKURU-572 103.
4
12. S. KESHAV
S/O SHESHADRI AIYANGAR
AGED ABOUT 75 YEARS.
13. MAHALAKSHMI
W/O SRINIVASA AIYANGAR
AGED ABOUT 70 YEARS.
RESPONDENTS 12 AND 13 ARE
R/AT DEVARAYA PATTANA VILLAGE,
KASABA HOBLI,
HASSAN TALUK-572 104.
14. AMEER AHAMED CHEDDA
S/O G.A. BEIG
AGED ABOUT 80 YEARS
R/AT KUVEMPU NAGAR,
HASSAN CITY,
HASSAN-573 201.
....RESPONDENTS
(BY SRI. D.L. JAGADEESH, SENIOR ADVOCATE FOR
SRI. NISHAD S.A., ADVOCATE FOR C/R1)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE,
HASSAN, DATED 02ND SEPTEMBER, 2021 IN MISCELLANEOUS
APPEAL NO.10 OF 2021, VIDE ANNEXURE-A; AND QUASH THE
ORDER PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE AND
CJM, HASSAN IN ORIGINAL SUIT 52 OF 2021 DATED 09TH
AUGUST, 2021 ON IA.NO.5, VIDE ANNEXURE-B; AND ETC.
THIS PETITION COMING ON FOR ORDERS, THIS DAY THE
COURT MADE THE FOLLOWING:
5
ORDER
This writ petition is filed by the defendants 16 to 18 and
defendants 1 & 2 challenging the order dated 09th August, 2021
passed in Original Suit No.52 of 2021 on the file of the Principal
Senior Civil Judge and CJM, Hassan (for short, hereinafter referred
to as 'trial Court') and the order dated 2nd September, 2021
passed in Miscellaneous Appeal No.10 of 2021 on the file of the II
Additional District and Sessions Judge, Hassan, (for short,
hereinafter referred to as 'First Appellate Court'), allowing the IA.V
filed by the plaintiff in Original Suit No.52 of 2021.
2. The brief facts for adjudication of this writ petition are
that the plaintiff/respondent No.1 herein has filed suit for
declaration with consequential relief in Original Suit No.52 of 2021
on the file of the trial Court in respect of the suit schedule
property. The said suit was contested by the defendants by filing
written statement. At the time of filing of the plaint, the plaintiff
has filed Interlocutory Application under Order XXXIX Rule 1 and 2
of the Civil Procedure Code and the said application was resisted
by the defendants. The petitioners herein have been impleaded in
the said suit and also filed objection to IA.V. The trial Court, after
considering the material on record, by its order dated 09th August,
2021, allowed IA.V filed by the plaintiff under Order XXXIX Rule 1
and 2 read with Section 151 of the Civil Procedure Code
restraining defendants 16 to 18 from putting up further
construction in the suit schedule property. The said order was
assailed before the First Appellate Court in Miscellaneous Appeal
No.10 of 2021 and same was resisted by the plaintiff. The First
Appellate Court, taking into consideration the finding recorded by
the trial Court, by its order dated 02nd September, 2021,
dismissed the appeal preferred by the defendants/petitioners
herein. Being aggrieved by the same, petitioners have preferred
this writ petition.
3. I have herad Smt. Lokeshwari H.C., learned counsel
appearing for petitioners and Sri. D.L. Jagadeesh, learned Senior
Counsel appearing on behalf of Sri. Nishad S.A., learned counsel
for Cavetor/respondent No.1.
4. Smt. Lokeshwari H.C., learned counsel appearing for
petitioners invited the attention of the Court pleadings on record
and submitted that the defendants have purchased the property
from the possession of the vendors in predecessors and also
Khata has been modified to the said exercise from the competent
authority and defendants have put up construction to an extent of
50%. She further contended that defendants/ petitioners herein
have obtained licence and plan to make such construction in the
suit schedule property. At this stage, the plaintiff filed suit against
the defendants therein and also filed IA.V seeking Temporary
injunction which came to be allowed by the trial Court,
consequently same has been affirmed by the First Appellate Court
which requires interference in this writ petition. She further
contended that the finding recorded by trial Court, particularly
with regard to paragraph 10 of the impugned order passed by the
trial Court on IA.V is not correct and submitted that the trial
Court, without considering the proceedings in Original Suit No.406
of 2017 filed by the respondent No.1 herein, wherein the said
application in IA.II being filed by the respondent No.1 herein
under Order XXXIX Rule 1 and 2, which came to be dismissed by
the trial Court and same was affirmed by the First Appellate Court
in Miscellaneous Appeal No.31 of 2017(Annexure-P). Therefore,
she contended that the plaintiff/respondent No.1 herein has
withdrawn the said suit in Original Suit No.406 of 2017 and filed
the present suit to harass the defendants herein. Therefore, she
contended that the finding recorded by both the Courts below
requires interference in this writ petition. She also placed reliance
on the judgment of Apex Court in the case of MANDALI
RANGANNA AND OTHERS vs. T. RAMACHANDRA AND
OTHERS reported in 2008 (11) SCC 1 and submitted the fact that
construction has been put up by the defendants ought to have
been considered by the trial Court while granting relief of
temporary injunction in favour of the plaintiff. Accordingly, she
submits that the finding recorded by the Courts below requires
interference in this writ petition.
5. Per contra, Sri. D.L. Jagadeesh, learned Senior Counsel
appearing for respondent No.1 submits that both the parties are
claiming their right over the property on the strength of different
Sale deeds. He further contended that the plaintiff has purchased
property prior to the defendants herein. The said aspect has been
considered by the trial Court at paragraph 10 of the impugned
order in Original Suit No.52 of 2021. Therefore, he contends that
the plaintiff claiming ownership and possession over the suit
schedule property on the strength of the Sale deed executed by
his vendors and if the defendants could be able to establish their
title and possession over the suit schedule property, then the
plaintiff would be out of Court and the said aspect has been
considered by the trial Court while granting Temporary injunction.
He further invited the attention of the Court to paragraphs 30 and
32 of the order dated 02nd September, 2021 passed in
Miscellaneous Appeal No.10 of 2021 and submitted that both the
Courts below have considered the comparative hardship that may
be caused to the parties and arrived at the just conclusion by
granting Temporary injunction which cannot be disturbed in this
writ petition.
6. Having heard the learned counsel appearing for parties
and taking into consideration the material on record, it is
undisputed fact that Original Suit No.52 of 2021 is filed by the
respondent No.1 herein, seeking declaratory relief with
consequential relief of permanent injunction. The said suit is
contested by the defendants by filing the written statement.
However, the core question to be answered in this writ petition is
whether both the Courts were justified in granting the Temporary
injunction in favour of the plaintiff. Perusal of the finding recorded
by the trial Court, particularly at paragraph 9 of the impugned
order would make it clear that the trial Court has observed that
the suit property is the part and parcel of Survey No.83 and the
schedule land has been converted and conveyed to different
persons by way of various Sale deeds. Undisputably, the
defendants 1 and 2 are the family members of Jwalanaiah who
had filed the earlier partition suit in Original Suit No.135 of 1995
and the said suit came to be decreed and pursuant to the same,
the Final Decree Proceedings have been initiated in Final Decree
Proceedings No.36 of 2004 before the II Additional Senior Civil
Judge and JMFC., Hassan.
7. I have also carefully considered the judgment and decree
in Final Decree proceedings No.36 of 2004 produced at Annexure-
M. Looking into the finding recorded by the trial Court, the same
makes it clear that the trial Court has taken note of the fact that
both the parties have produced their title deeds to establish their
ownership in respect of the suit schedule property and possession
over the vacant suit being the suit property. The trial Court at
paragraph 10 of the impugned order had come to the conclusion
that while deciding an application for temporary injunction, has
considered the Sale deed executed in favour of the plaintiff by his
vendor at the relevant point of time, which stands on higher
pedestal than the case of the defendants 16 to 18 and prima facie
had come to the conclusion that the plaintiff has made out the
case for grant of temporary injunction to avoid multiplicity of
proceedings at the later stage and to protect interest of the
plaintiff. The said impugned order passed by the trial Court was
considered by the First Appellate Court and the First Appellate
Court, having taken note of the law declared by the Apex Court
and this Court referred at paragraph 35 of the order had come to
a conclusion that the contention raised by the parties including the
legal contentions needs to be addressed while conducting trial at
appropriate stage, and therefore declined to interfere with the
order passed by the trial Court and accordingly, dismissed the
appeal preferred by the petitioners herein.
8. Having taken note of the finding recorded by both the
Courts below, it is well established principle that this Court is
having limited jurisdiction under Article 227 of the Constitution of
India to interfere with the concurrent findings by the trial Court on
the order passed under XXXIX Rule 1 and 2 of the Code of Civil
Procedure Code. In that view of the matter, I find force in the
submission made by learned Senior Counsel Sri. D.L. Jagadeesh
that the impugned orders passed by both the Courts require to be
affirmed in this writ petition. Accordingly, I am of the view that
the parties to the suit have to establish their right in respect of
the suit schedule property before the trial Court in the full-fledged
trial. Accordingly, interference is called at this stage with regard
to the order passed on application filed by the plaintiff under
Order XXXIX Rule 1 and 2 of the Civil Procedure Code and the
same needs to be confirmed in this writ petition. Accordingly, writ
petition is dismissed.
Sd/-
JUDGE
ARK
