Karnataka High Court
Smt. Rathnamma vs Sri. Raju on 12 June, 2023
Bench: H.P.Sandesh
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NC: 2023:KHC:19949
MFA No. 2030 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 2030 OF 2023 (CPC)
BETWEEN:
1. SMT. RATHNAMMA
W/O. LATE MUNIRAMAIAH,
AGED ABOUT 75 YEARS,
R/AT NO.24, EWS ROAD,
8TH 'A' CROSS, 1ST 'D' MAIN
ROAD, KS TOWN,
BANGALORE-560 060.
2. SRI K.V. MUNIRAJU
S/O. LATE VENKATESH,
AGED ABOUT 50 YEARS,
3. SMT. PARVATHAMMA
D/O. LATE VENKATESH,
AGED ABOUT 60 YEARS,
Digitally signed BOTH ARE R/AT NO.298,
by SHARANYA T
Location: HIGH 5TH CROSS, KS TOWN,
COURT OF BANGALORE-560 060.
KARNATAKA
...APPELLANTS
(BY SRI. CHOKKAREDDY, ADVOCATE)
AND:
1. SRI. RAJU
S/O. LATE K.V.NARASIMHAIAH,
AGED ABOUT 36 YEARS,
2. SRI VENKATESH
S/O. K.V.NARASIMHAIAH,
AGED ABOUT 32 YEARS,
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MFA No. 2030 of 2023
NO.1 AND 2 ARE R/AT
NEW POLICE STATION ROAD,
3RD CROSS, KRISHNARAJAPURAM,
BANGALORE-560 036.
3. SMT. RATHNAMMA
W/O. LATE BASAVARAJU
AGED ABOUT 58 YEARS,
R/AT NEAR KANIKAPARAMESHWARI
TEMPLE, K.R.PURAM,
BANGALORE-560 036.
...RESPONDENTS
(BY SRI RAJESH GOWDA, ADVOCATE FOR R3;
SRI S.D.N. PRASAD, ADVOCATE FOR C/R3)
THIS MFA IS FILED U/O. 43 RULE 1(r) R/W. SECTION 151
OF CPC, AGAINST THE ORDER DATED 06.03.2023 PASSED ON
I.A.NO.2 AND 3 IN MISC.NO.480/2021 ON THE FILE OF THE
HOLDING CONCURRENT CHARGE OF THE COURT OF THE XXVII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE CCH-9,
BENGALURU, FILED UNDER ORDER 39 RULE 1 AND 2 R/W.
SECTION 151 OF CPC.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellants and learned
counsel for the respondents.
2. Though this matter is listed for admission, in view
of an application being filed for vacating the interim and
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statement of objections also being filed by the learned counsel
for the respondents, the matter is heard on merits.
3. The appellants have sought for an order before the
Trial Court by filing I.A.Nos.2 and 3 under Order 39, Rule 1 and
2 of C.P.C. to restrain the respondents-defendants from
creating third party right over the suit schedule properties and
changing the nature of the suit properties, till the disposal of
the petition i.e., Miscellaneous No.480/2021 which is filed for
restoration of O.S.No.5245/2016.
4. Learned counsel for the appellants would
vehemently contend that grant order is obtained behind the
back of the appellants herein, even though the revenue records
stands in the name of Anjanappa, S/o. Sanjeevappa, who is the
father of the first appellant and grand-father of appellant Nos.2
and 3. The counsel would vehemently contend that
M.R.No.14/38-39 also discloses that property was changed in
the name of Anjanappa, S/o. Sanjeevappa and though the
appellants sought for setting aside the order of grant made in
favour of the respondents in W.P.No.24239/1992, wherein
made an observation that, if the appellants have any right,
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they can approach the appropriate forum. Hence, the suit is
filed in the year 2016.
5. After filing the suit, the Trial Court has raised the
objection with regard to payment of Court fee and the same
was challenged before the Court and during the pendency of
the writ petition, the Trial Court also dismissed the said suit
and the same is not decided on merits. Hence, the Trial Court
committed an error in not considering the documents which
have been produced before the Court, wherein the appellants
have sought for the relief of permanent injunction against the
respondents and failed to consider the documents which were
produced before the Court. Hence, it requires interference of
this Court and the relief sought before the Trial Court is for
restraining the respondent-defendants from alienating the suit
schedule properties.
6. Per contra, learned counsel for the respondents
would vehemently contend that the land was granted in the
year 1981 and prior to that, after 1974 onwards, the records
were standing in the name of the respondents. It is also
contended that the said grant was challenged by filing
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W.P.No.24239/1992 and the same was dismissed. Against the
said order, W.A.No.7279/1996 was filed, wherein also, this
Court comes to the conclusion that during the life time of the
father of the appellants, he has neither filed an application for
grant of occupancy rights nor the appellants after the death of
their father have taken any steps as provided under the Inams
Abolition Act. It is only in the year 1991, i.e., ten years after
the grant of occupancy rights in favour of the respondent No.3,
they have come up with the same. It is also observed that the
grant was made in favour of respondent No.3 ten years back
and the same cannot be re-opened and agitated. Hence, found
no merit in the appeal and dismissed the same. However, this
Court observed that, this will not bar the appellants, if they
have got any remedy under law to take recourse to the same.
7. When the grant has been challenged before this
Court by filing a writ petition and the same came to be
dismissed and against the very order, a writ appeal was also
filed and the same was also dismissed, suit is filed in the year
2016, after almost 18 years of dismissal of the writ appeal and
nowhere in the plaint, the plaintiffs have stated with regard to
the title is concerned, except the entries found in index of land
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and mentioning the M.R. number, not pleaded anything with
regard to the grant made in favour of the appellants-plaintiffs.
Hence, the Trial Court rightly dismissed the application filed
under Order 39, Rule 1 and 2 of C.P.C. in coming to the
conclusion that no prima facie case is made out to grant the
relief as sought. The counsel also would submit that the
original suit is dismissed and the same is also not restored and
while granting an order, the revenue records must be in the
name of the appellants-plaintiffs as on the date of filing of the
suit and no such document is produced before the Court.
Hence, no merit in the appeal
8. Having heard the respective counsel and also on
perusal of the material available on record, the Trial Court,
while dismissing the application, comes to the conclusion that
the appellants have not stated anything about sources of their
right over the suit properties. On perusal of the copy of the
plaint, it is seen that the plaintiffs are claiming right over
Sy.Nos.60 and 33 measuring 3 acres, 11 guntas and 1 acre, 12
guntas of Devasandra Village and K.R.Puram Village
respectively as daughters and grand children of Anjanappa and
Anjanappa was stated to be Inamdar of the said lands.
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However, the Trial Court also observed that though in the
records of right of the year 1969 names of Akamma,
Anjanappa, Narasimaiah and Venkataswamy are mentioned in
records of right in respect of Sy.No.33, but, the appellants have
not produced any documents to show that as on the date of
filing of the suit, the suit property was standing in the name of
Anjanappa or the plaintiffs and they have some right in
Sy.No.33, but at the same time, the respondents have
produced documents like order of the Land Tribunal under
which the said land bearing Sy.No.33 was granted to K.V.
Narasimaiah, and conversion order dated 23.10.1996, as per
which the said Narasimaiah converted the said land for non-
agricultural purpose is also produced and layout map shows
that Narasimaiah has formed layout in Sy.No.33 and
endorsement of the Special Tahsildar stating that the entire 1
acre, 12 guntas of Sy.No.33 is already developed into
residential area from which, it appears that there is no prima
facie material to show that the petitioners have right over the
suit schedule properties. Hence, comes to the conclusion that
the petitioners have not made out any prima facie case to grant
the relief as sought.
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9. The learned counsel for the appellants would submit
that the observation made by the Trial Court is erroneous and it
is stated that, when an order of injunction is sought, as on the
date of filing the suit, the document must show that the
appellants are in possession of the property but, the relief
sought before the Trial Court is to restrain the respondents-
defendants from creating any third party right over the suit
properties and changing the nature of the suit properties, till
the disposal of the petition. The counsel would further contend
that the appellants are seeking the relief, based on the
document of index of land and mutation in M.R.No.14/38-39
and the Trial Court also taken note of the said fact but, comes
to the conclusion that, in order to make such entry, no
document before the Trial Court and there must be a document
of grant and merely, an entry is found in the document, based
on that document, the Court cannot decide the prima facie case
and except the index of land and referring the document of
mutation entry in M.R.No.14/38-39, no document is placed to
evidence the fact that land was granted in favour of the
appellants herein.
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10. On the other hand, the respondents rely upon the
document of grant made in the year 1981 and also produced
the documents of record of rights for the year 1974-1975,
wherein the names of the respondents are found and the
property is also converted and layout is formed. The appellants
have also not pleaded anything as to on what date the grant
was made in favour of the appellants and unless the grant
order is produced before the Court, the relief as sought by the
appellants cannot be granted. Hence, the appellants have not
made out any prima facie case to direct the respondents not to
alienate the property and unless a material is placed before the
Court to show the semblance of right in respect of the suit
schedule property, the relief as sought cannot be granted
relying only upon the index of land and also mutation entry in
M.R.No.14/38-39. When such being the case, it is not a fit
case to grant any order and the Trial Court also passed a
reasoned order while rejecting the application, in coming to the
conclusion that there is no prima facie case to restrain the
defendants from alienating the suit schedule properties and
creating any third party right and changing the nature of the
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suit schedule properties. When such being the material, I do
not find any merit in the appeal.
Accordingly, the appeal is dismissed.
Sd/-
JUDGE
ST
