Smt Anitha @ Anithmma vs State Of Karnataka
2023 Latest Caselaw 5045 Kant

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                                                   NC: 2023:KHC:26554
                                                        WP No. 4391 of 2020




                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                         DATED THIS THE 31ST DAY OF JULY, 2023
                                        BEFORE
                          THE HON'BLE MR JUSTICE S.G.PANDIT
                      WRIT PETITION NO. 4391 OF 2020 (GM-CPC)
              BETWEEN:
              1.   SMT ANITHA @ ANITHAMMA
                   W/O SRINIVASA
                   AGED ABOUT 60 YEARS
                   R/O CHALLAHALLI VILLAGE,
                   BILIKERE HOBLI, HUNSUR TALUK,
                   MYSURU DISTRICT-571103.
                                                                ...PETITIONER

              (BY SRI.K.R .LINGARAJU., ADVOCATE)

              AND:
              1.   STATE OF KARNATAKA
                   REP. BY ITS CHIEF SECRETARY
                   VIDHANA SOUDHA, BENGALURU-560001.

              2.   THE DEPUTY COMMISSIONER
                   HUNSUR, MYSURU DISTRICT-570001.

Digitally
signed by     3.   THE EXECUTIVE OFFICER
NANDINI B G        TALUK PANCHAYATH,
Location:
HIGH COURT         HUNSUR TALUK, HUNSUR-571105.
OF
KARNATAKA
              4.   THE PANCHAYATH DEVELOPMENT OFFICER
                   CHALLAHALLI GRAMA PANCHAYATH
                   HUNSUR TALUK-570010.
                                                             ...RESPONDENTS
              (BY SMT.RASHMI PATEL, HCGP FOR R1 & R2;
              SRI.B.J.SOMAYAJI., ADVOCATE FOR R4;
              R3- SERVED & UNREPRESENTED)
                   THIS PETITION IS FILED UNDER ARTICLE 227 OF THE
              CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER IN
              M.A.NO.04/2019 DATED 07.11.2019 PASSED BY THE PRINCIPAL
              SENIOR CIVIL JUDGE AND JMFC, HUNSUR VIDE ANNEXURE-A.
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                                           NC: 2023:KHC:26554
                                              WP No. 4391 of 2020




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

                             ORDER

Heard the learned counsel Sri.K.R.Lingaraju for

petitioner, learned High Court Government Pleader

Smt.Rashmi Patel for respondent Nos.1 and 2 and learned

counsel Sri.B.J.Somayaji for respondent No.4. Perused the

writ petition papers.

2. The petitioner is before this court under Article

227 of the Constitution of India challenging the judgment

dated 07.11.2019 passed in M.A.No.4/2019 on the file of

the Principal Senior Civil Judge & JMFC, Hunsur (for short,

'Trial Court') by which the appeal filed by respondent

Nos.3 and 4 is allowed and interim order of injunction

restraining respondent Nos.3 and 4 from interfering with

the plaintiff's peaceful possession and enjoyment over the

suit schedule property is set aside.

3. Learned counsel Sri.K.R.Lingaraju for the

petitioner would submit that the petitioner filed suit in

NC: 2023:KHC:26554 WP No. 4391 of 2020

O.S.No.264/2018 on the file of the Civil Judge and JMFC,

Hunsur with a prayer for permanent injunction restraining

the defendants from interference as well as to declare the

notices issued by fourth respondent dated 28.09.2018 and

15.10.2018 as null and void. The respondent Nos.3 and 4

- Panchayath Authorities issued notices referred to above

directing the plaintiff/petitioner to vacate the encroached

portion of the property which is in unauthorized occupation

of the plaintiff/petitioner. Learned counsel for the

plaintiff/petitioner would submit that the

plaintiff/petitioner is not in encroachment of the land as

alleged by the respondent Nos.3 and 4 - Panchayath

Authorities. It is submitted that the suit schedule property

is ancestral property, where the plaintiff/petitioner has

built residential house and she is in peaceful possession

and enjoyment. The Trial Court taking note of the material

on record including the record of rights produced by the

plaintiff/petitioner, granted interim order of injunction

restraining the respondent Nos.3 and 4 from interfering

with the peaceful possession and enjoyment of the

NC: 2023:KHC:26554 WP No. 4391 of 2020

plaintiff/petitioner over the suit schedule property. The

respondent Nos.3 and 4 filed appeal under Order 43 Rule 1

of CPC on the file of the Principal Senior Civil Judge and

JMFC, Hunsur. The Appellate Court under impugned

Judgment, set aside the order dated 19.01.2019 passed in

O.S.No.264/2018 on I.A.No.1. Aggrieved by the same,

plaintiff/petitioner is before this Court in this writ petition.

4. Learned counsel for the petitioner would submit

that the Trial Court on consideration of the material on

record and the documents produced by the petitioner has

rightly granted interim order of injunction restraining

respondent Nos.3 and 4 - Panchayath Authorities. Further,

learned counsel would submit that simultaneously

respondent Nos.3 and 4 also filed application under Order

39 Rule 4 of CPC to vacate the interim order. The Trial

Court on consideration of the record of rights produced by

the plaintiff/petitioner, rejected the application for

vacating interim order and confirmed the interim order

passed under order dated 19.01.2019. It is also his

NC: 2023:KHC:26554 WP No. 4391 of 2020

submission that the Trial Court has found that there is

triable issue. It is also submitted that the

plaintiff/petitioner is in possession of the suit schedule

property and issuance of notices by respondent Nos.3

and 4 itself confirms the possession of the petitioner. As

the plaintiff/petitioner has made out triable issue, the Trial

Court is justified in granting the interim order.

5. Per contra, learned counsel Sri.B.J.Somayaji

for respondent No.4 would submit that the

plaintiff/petitioner has not produced any documents to

establish her title and as the petitioner is in encroachment

and unauthorized occupation of the land, the Panchayath

Authorities rightly in exercise of their statutory power,

issued notices directing her to vacate the encroached

portion of the land. Further, learned counsel would submit

that in the absence of any material to establish her

possession or title over the suit schedule property, the

Trial Court erred in granting interim order. Thus, he

justifies the judgment passed by the Appellate Court.

NC: 2023:KHC:26554 WP No. 4391 of 2020

6. Having heard the learned counsel appearing for

the parties and on perusal of the writ petition papers, the

only point that arises for consideration is as to,

Whether the impugned appellate order requires interference?

The answer to the above point would be in the Affirmative

and the appellate order requires interference for the

following reasons:

7. The suit of the plaintiff/petitioner was for

permanent injunction as well as to declare the notices issued

by respondent No.4 - Panchayath Authorities as null and

void. The notices mentioned in the suit i.e., dated

28.09.2018 and 15.10.2018 are issued directing the

plaintiff/petitioner to vacate the encroached portion of the

land in question. The plaintiff/petitioner claims that it is her

ancestral land and the Trial Court based on the material on

record, came to the conclusion that there is triable issue.

When the triable issue is made out, it would amount to

prima-facie case and the plaintiff/petitioner would be entitled

for interim order, when prima-facie case is made out.

NC: 2023:KHC:26554 WP No. 4391 of 2020

8. On the other hand, learned counsel

Sri.B.J.Somayaji would point out that the suit averments

would indicate that the land in question was allotted to the

petitioner, but the petitioner has not produced any

documents to establish the allotment. However, it is a fact

that the Trial Court in its order, rejecting the I.A for

vacating the stay has observed that the plaintiff has

produced the RTC and it shows the name of the petitioner

and it is also observed that the mutation in favour of

petitioner is also produced. Moreover, this Court while

issuing notice to the respondents, stayed the order of the

Appellate Court. For more than three years, the interim

order is operating against the respondent-Panchayath

Authorities. Learned counsel would also submit that the suit

is in progress and it is at the stage of recording evidence.

Therefore, in the facts and circumstances of the case and

as the Trial Court has after considering the material on

record including RTC, granted interim order restraining

respondent Nos.3 and 4 from interfering with the peaceful

possession and enjoyment of the plaintiff/petitioner, there

NC: 2023:KHC:26554 WP No. 4391 of 2020

was no reason for the Appellate Authority to come to a

different conclusion and to set aside the order dated

19.01.2019 passed by the Trial Court.

9. For the reasons recorded above, I proceed to

pass the following:

ORDER

1) Writ petition is allowed.

2) The judgment dated 07.11.2019 passed in

M.A.No.04/2019 on the file of the Principal

Senior Civil Judge and JMFC, Hunsur is set

aside.

3) The Trial Court to dispose of the suit in

O.S.No.264/2018 expeditiously.

Sd/-

JUDGE

NC