Karnataka High Court
Smt Nagarathna Jayaramu vs Sri A C Nagaraju on 27 November, 2023
Author: S.G.Pandit
Bench: S.G.Pandit
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR.JUSTICE S.G.PANDIT
WRIT PETITION No.23933/2023 (GM-CPC)
BETWEEN:
1. SMT. NAGARATHNA JAYARAMU
W/O LATE G B JAYARAMU
AGED ABOUT 69 YEARS
R/AT NO.437, 10TH CROSS
SWARNASANDRA
MANDYA- 571401.
2. SRI. M J MADHUCHANDRA
SON OF LATE G B JAYARAMU
AGED ABOUT 54 YEARS
R/AT NO.437, 10TH CROSS
SWARNASANDRA
MANDYA - 571401.
3. SRI M J AJAYCHANDRA
SON OF LATE G B JAYARAMU,
AGED ABOUT 48 YEARS
R/AT NO.437, 10TH CROSS,
SWARNASANDRA
MANDYA- 571401.
4. SMT. T AKSHATHA JAYARAMU
D/O LATE G B JAYARAMU,
AGED ABOUT 40 YEARS
R/AT NO.437, 10TH CROSS,
2
SWARNASANDRA
MANDYA- 571401.
...PETITIONERS
(BY SRI BHASKAR GOWDA N M, ADV.)
AND:
1. SRI A C NAGARAJU
SON OF CHIKKANNA
AGED ABOUT 45 YEARS
R/AT 5TH CROSS,
CHAMUNDESHWARINAGAR
MANDYA - 571401.
2. SRI MOHAMMED IRFAN
SON OF ABDUL JABBAR
AGED ABOUT 55 YEARS
RESIDING AT MAIN ROAD,
RAJEEVNAGAR
MYSURU - 571401.
...RESPONDENTS
(BY SRI B.S. SAVANTH, ADV. FOR C/R1 & R2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
IMPUGNED ORDER DATED 10.10.2023, PASSED IN
M.A.NO.13/2019, PASSED BY THE LEARNED II ADDITIONAL
SENIOR CIVIL JUDGE AND JMFC, MANDYA AS PER
ANNEXURE-K AND THEREBY ORDER TO CONFIRM THE
ORDER DATED 05.08.2019, ON IA.NO.4 FILED UNDER
ORDER 39 RULE 1 AND 2 OF CPC PASSED BY THE II
ADDITIONAL CIVIL JUDGE AND JMFC, MANDYA AS PER
ANNEXURE-H BY ALLOWING THE WRIT PETITION.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED ON 07/11/2023 COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:
3
ORDER
Petitioners, plaintiffs in O.S.No.750/2018 on the
file of the II Additional Civil Judge and JMFC., Mandya
(for short, 'Trial Court') are before this Court, aggrieved
by judgment dated 10.10.2023 in M.A.No.13/2019 on
the file of II Additional Senior Civil Judge and JMFC., at
Mandya (for short, 'Appellate Court') setting aside the
order dated 05.08.2019 on I.A.No.4 filed under Order
XXXIX Rule 1 and 2 of CPC.
2. Heard the learned counsel Sri.Bhaskar
Gowda.N.M., for petitioners/plaintiffs and learned
counsel Sri.B.S.Savanth for respondents/defendants.
Perused the writ petition papers.
3. Learned counsel for the petitioners/plaintiffs
would submit that petitioners/plaintiffs filed suit praying
for a judgment and decree of permanent injunction to
restrain the defendants from interfering with plaintiffs'
peaceful possession and enjoyment over the suit
schedule property. Petitioners/plaintiffs claim that suit
schedule property is totally measuring 18 guntas within
the municipal area. It is stated that totally to an extent
of 2 acres of land was granted to one Sri.Puttalingaiah in
the year 1962. At that time survey number of the land
was 508 and subsequently land was assigned with new
Sy.No.794. It is submitted that Sri.Puttalingaiah sold 1
acre 19 guntas in favour of Housing Board and 21
guntas to one Savithramma on 09.03.1977. The said
Savithramma sold the land in favour of G.B.Jayaramu
and petitioners/plaintiffs claim that they are legal heirs
of G.B.Jayaramu. Along with the suit,
petitioners/plaintiffs filed I.A.No.4 under Order XXXIX
Rule 1 and 2 of CPC praying to grant ad-interim order of
temporary injunction against defendants not to put up
any kind of construction over any portion of suit
schedule property till disposal of the suit. In the affidavit
accompanying the application, it is alleged that
respondents/defendants have no manner of right, title
or interest over the suit schedule property and katha
stands in the name of the petitioners/plaintiffs.
Petitioners/plaintiffs are paying tax to the Municipal
Authorities and they are in continuous settled peaceful
possession and enjoyment of the suit schedule property.
It is alleged that defendants are illegally trying to
dispossess the plaintiffs from suit schedule property and
they are trying to squat upon the suit schedule property.
4. Respondents/defendants opposed the
petitioners/plaintiffs' application by filing objections
stating that land in Old Sy.No.508 measuring 1 acre 22
guntas was Government land and under the orders of
Special Deputy Commissioner, Mandya dated
21.06.1966 and 19.03.1966, land was converted to sites
and sites were allotted to 12 persons. Site Nos.1 and 9
relates to defendants. Second respondent purchased site
from one Abdul Latif who sold the site under sale deed
dated 03.12.2015. Further, it is stated that site No.9
was allotted to one M.K.Subbaiah on 23.04.1966 and
said M.K.Subbaiah gifted the property to his son
Sri.M.S.Gopalakrishna under registered gift deed dated
13.07.2009. The said M.S.Gopalakrishna S/o
M.K.Subbaiah sold the property to one
Sri.A.C.Shivalingegowda under registered sale deed
dated 12.03.2012 and said Sri.A.C.Shivalingegowda has
relinquished his right in favour of his brother, first
defendant. Respondents/defendants dispute the
existence of petitioners/plaintiffs' land itself.
5. Trial Court, under order dated 05.08.2019
allowed I.A.No.4 partly and restrained defendants not to
further construct in the suit schedule property and
directed to maintain status quo till disposal of the suit.
Against which, defendants filed appeal in
M.A.No.13/2019 under Order XLIII Rule 1 of CPC.
Appellate Court set aside the order of Trial Court taking
note of the report of the Tahasildar as well as order
passed in O.S.No.659/1991. Against which, present writ
petition is presented by petitioners/plaintiffs.
6. Learned counsel for petitioners/plaintiffs
would contend that Appellate Court failed to appreciate
the prima-facie case made out by petitioners/plaintiffs.
Appellate Court is not justified in setting aside the order
of Trial Court and taking note of the Tahsildar report and
judgment in O.S.No.659/1991 the Appellate Court could
not have come to a different conclusion than arrived at
by Trial Court. It is submitted that the said suit was filed
by one Sri.Hemanna against father of the
petitioners/plaintiffs and CMC, Mandya for the relief of
permanent injunction in respect of Site No.8. It is
submitted that Trial Court on the finding that suit
schedule property and property of defendants are
overlapped and hence, it is rightly directed the parties to
maintain status quo which would not prejudice the cases
of either of the parties. Thus, it is prayed for setting
aside the order passed by the Appellate Court.
7. Per contra, learned counsel for
respondents/defendants would support the order of the
Appellate Court and would submit that
petitioners/plaintiffs have not made out prima-facie case
for grant of injunction. Further, it is submitted that when
the petitioners/plaintiffs' prayer is not to construct
further would mean that defendants are in possession of
the property. If the defendants are in possession of
defendants' property, it is for them to enjoy the
property. In a suit for injunction, it is for the plaintiffs to
prove their possession over the suit schedule property.
When the petitioners/plaintiffs admit possession of
defendants and pray for an order of injunction not to
construct further, petitioners/plaintiffs would not be
entitled for the said relief in a mere suit for injunction.
Thus, he prays for dismissal of the writ petition.
8. Having heard the learned counsel appearing
for the parties and on perusal of the writ petition papers,
I am of the view that petitioners/plaintiffs have not
made out any ground for interference with judgment of
the Appellate Court dated 10.10.2023 in
M.A.No.13/2019. Further, impugned judgment under
challenge is neither perverse nor suffers from any
material irregularity so as to warrant interference under
Article 227 of the Constitution of India.
9. While considering application filed under
Order XXXIX Rule 1 and 2 of CPC, it is for the Courts to
find out whether the plaintiffs have made out prima-
facie case; balance of convenience; and the injury that
would be caused by granting or non-granting of
injunction. The first and foremost ground is for the
plaintiffs to prove prima-facie case. In the present case,
petitioners/plaintiffs' suit is for permanent injunction. In
a suit for permanent injunction, it is for the
petitioners/ plaintiffs to prove their lawful possession
over the suit schedule property. The
petitioners/plaintiffs' prayer in I.A.No.4 filed under Order
XXXIX Rule 1 and 2 of CPC is to restrain the
respondents/defendants from putting up any kind of
construction over any portion of the suit schedule
property in any manner which would mean that
defendants are in possession of the suit schedule
property.
10. Petitioners/plaintiffs are yet to establish their
lawful possession over the suit schedule property. Both
the petitioners/plaintiffs claim ownership over the suit
schedule property as well as schedule land of
respondents/defendants through different title holders,
but relating to same old Sy.No.508. Whether the suit
schedule property falls within the portion of 1 acre 19
guntas sold by Puttalingaiah in favour of Housing Board
or suit schedule property falls within 21 guntas sold by
late Puttalingaiah to one Savithramma who in turn sold
to G.B.Jayaramu under whom, petitioners/plaintiffs
claim. In the above circumstances, Appellate Court
based on the report of the Tahsildar has recorded a
finding that properties claimed by parties are
overlapping.
11. Moreover, defendants have also made
available judgment in O.S.No.659/1991 filed by one
Hemanna against G.B.Jayaramu, husband of first
plaintiff and father of plaintiff Nos.2 to 4 in respect of
Site No.8 and the said suit was decreed against the
plaintiffs. In the above background, unless and until the
petitioners/plaintiffs prove their lawful possession over
suit schedule property, petitioners/plaintiffs would not
be entitled for injunction, as prayed before the Trial
Court.
For the reasons recorded above, writ petition
stands rejected.
Sd/-
JUDGE
NC
CT:bms
