Karnataka High Court
Ashoka S/O Shankarappa Punjoji Alias ... vs Smt. Shantavva W/O Bhimappa Gayakwad on 28 November, 2023
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WP No. 106923 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 28TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE M.I.ARUN
WRIT PETITION NO. 106923 OF 2023 (GM-CPC)
BETWEEN:
ASHOKA S/O. SHANKARAPPA PUNJOJI @ SHINDE,
AGE: 36 YEARS, OCC: AGRICULTURIST,
R/O. GALAGI HULAKOPPA, TQ: KALAGHATAGI,
DIST: DHARWAD-580118.
...PETITIONER
(BY SRI A.P. MURARI, ADVOCATE)
AND:
1. SMT. SHANTAVVA W/O. BHIMAPPA GAYAKWAD,
AGE: 62 YEARS, OCC: HOUSEHOLD,
R/O. ITIGATTI, KANAVIHONNAPUR,
TQ: DHARWAD, DIST: DHARWAD-580026.
GIRIJA A 2. SMT. RATNA W/O. HANAMANTH KARJGI,
BYAHATTI
AGE: 60 YEARS, OCC: HOUSEHOLD,
Digitally R/O. DONDIBAR ONI, TERGAON VILLAGE,
signed by
GIRIJA A TQ: HALIYAL, DIST: UTTARA KANNADA-581356.
BYAHATTI
3. NINGAPPA S/O. BHIMAPPA SAMOJI,
AGE: 65 YEARS, OCC: AGRICULTURIST,
R/O. GALAGI HULAKOPPA, TQ: KALAGHATAGI,
DIST: DHARWAD-580118.
4. RAMAPPA S/O. BHIMAPPA SAMOJI,
AGE: 58 YEARS, OCC: AGRICULTURIST,
R/O. GALAGI HULAKOPPA, TQ: KALAGHATAGI,
DIST: DHARWAD-580118.
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WP No. 106923 of 2023
5. SMT. PARVATI W/O. PUNDALIK SAMOJI,
AGE: 50 YEARS, OCC: HOUSEHOLD,
R/O. GALAGI HULAKOPPA, TQ: KALAGHATAGI,
DIST: DHARWAD-580118.
6. MAHESH S/O. PUNDALIK SAMOJI,
AGE: 29 YEARS, OCC: PVT. SERVICE,
R/O. GALAGI HULAKOPPA, TQ: KALAGHATAGI,
DIST: DHARWAD-580118.
7. SMT. SUJATA W/O. BASAVARAJ KALLIMANI,
AGE: 33 YEARS, OCC: HOUSEHOLD,
R/O: UGARKHOD GRAMDEVI ONI,
TQ: & DIST: BELAGAVI-591115.
8. SMT. SUREKHA W/O. SATISH KITDAL,
AGE: 29 YEARS, OCC: HOUSEHOLD,
R/O: MARUTIGUDI ONI, GULGANJIKOPPA,
TQ: & DIST: BELAGAVI-580008.
...RESPONDENTS
(BY SRI VIJAY M. MALALI, ADVOCATE FOR R1-2;
NOTICE TO R3-8 DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
ALLOW THIS WRIT PETITION GRANTING WRIT OR ORDER IN
THE NATURE OF WRIT OF CERTIORARI, SETTING ASIDE THE
IMPUGNED JUDGMENT IN M.A. NO. 01/2023 DATED 03.10.2023
PRODUCED AT ANNEXURE-E PASSED BY THE LEARNED
SENIOR CIVIL JUDGE AND JMFC KALAGHATAGI; RESTORE
THE ORDER ON I.A.NO. 1 IN O.S. NO. 178/2022 DATED
05.07.2023 PRODUCED AT ANNEXURE-D PASSED BY THE
LEARNED CIVIL JUDGE AND JMFC, KALAGHATAGI, IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
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WP No. 106923 of 2023
ORDER
Petitioner is the plaintiff in O.S.No.178/2022.
Petitioner purchased the suit schedule property on
30.12.2021 by way of registered sale deed. Subsequently,
the revenue entries regarding the same has been
transferred in the name of the petitioner herein. After the
said purchase, O.S.No.9/2022 was filed by certain family
members of the vendor of the petitioner stating that
several properties, including the property sold to the
petitioner, are joint family properties and they also
claimed right over the property that has been sold to the
petitioner, and also have claimed that the sale deed
executed in favour of the petitioner is not binding on
them. Petitioner is also made party to the proceedings in
the said suit.
2. It is further submitted that, trial Court in
O.S.No.9/2022 has passed an interim order restraining the
defendants therein from alienating the suit schedule
properties, which includes the property, which is the
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subject matter of this writ petition. Thereafter, petitioner
preferred O.S.No.178/2022, which is a bare injunction
suit, wherein he alleged that respondents are trying to
illegally interfere with his peaceful possession and
enjoyment of the property. He also preferred an
application under Order XXXIX Rules 1 and 2 of the Code
of Civil Procedure for temporary injunction and the trial
Court was pleased to allow the application in his favour.
3. Aggrieved by the same, respondents No.1 and 2
herein preferred M.A.No.1/2023, where the First Appellate
Court set aside the order passed by the trial Court and has
directed the parties to maintain status-quo, in respect of
the property concerned. Aggrieved by the same, the
present writ petition is filed.
4. The case of the petitioner is that, he has
purchased the suit schedule property way back on
30.12.2021 and even if assuming that O.S.No.9/2022 is
allowed, he would be entitled to the suit schedule
property, as the share of his vendor is much more than
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the suit schedule property purchased by the petitioner
herein. It is further contended that, upon execution of the
sale deed, the petitioner herein has been put in possession
of the suit schedule property and the revenue documents,
like Katha, stands in his name, which shows that he is in
possession of the property and he has been paying rents
and under the circumstances, he is entitled to protection
at the hands of the court and the trial Court rightly
allowed the application filed under Order XXXIX Rules 1
and 2 of the Code of Civil Procedure. It is further
submitted, though the First Appellate Court came to the
conclusion that the petitioner is in possession of the
property, it has set aside the order passed by the trial
Court, which is erroneous. On the said ground, it is
prayed that the writ petition be allowed and the impugned
order passed by the First Appellate Court be set aside and
the order passed by the trial Court be restored.
5. Respondents No.1 and 2 are the only contesting
respondents and they submit that O.S.No.9/2022 is
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pending and that they have an undivided right in every
inch of the land including that of the land sold in favour of
the petitioner herein and until the property is divided by
metes and bounds, the petitioner shall not get any right
over the same. It is further submitted that, respondents
No.1 and 2 are also in joint possession of the suit schedule
property along with other family members and justifies the
order passed by the First Appellate Court and prays for
dismissal of the writ petition.
6. Admittedly, the sale deed has been executed in
respect of the suit schedule property in favour of the
petitioner herein. It is not in dispute that the vendor of
the petitioner had a right over the suit schedule property.
Whether respondents No.1 and 2 have any right over the
suit schedule property or not is the subject matter to be
decided in O.S.No.9/2022. If the court were to come to a
conclusion that the property sold in favour of the petitioner
herein was a joint family property of respondents No.1 and
2 and their family members, then in that event, the sale
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executed in favour of the petitioner herein will be subject
to the rights of respondents No.1 and 2. Further, it is
submitted by both the parties that an order has been
passed in O.S.No.9/2022, wherein the parties are
prohibited from alienating the suit schedule properties,
which includes the property sold in favour of petitioners.
However, the sale deed executed in favour of the
petitioner prima facie show that the petitioner is in
physical possession of the schedule property and the fact
that the revenue documents stands in his name also prima
facie establishes that said fact.
7. The trial Court in the instant case, based on the
documents submitted by the petitioner (plaintiff) along
with affidavit, has come to the conclusion that, prima facie
the petitioner has been able to prove that he is the owner
of the property and that he is in possession of the suit
schedule property and has passed an order of temporary
injunction restraining the defendants therein from
interfering with his peaceful possession of the property.
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The sale deed and the revenue documents, as already
mentioned, do establish the same.
8. Under the circumstances, one has to hold that
the order passed by the trial Court is in accordance with
law. Respondents No.1 and 2 are always are at liberty to
lead evidence to the contrary in O.S.No.178/2022 and
prove that they were in possession of the property jointly
and the petitioner was not in exclusive possession of the
property and can pray for dismissal of the suit itself. But
presently one cannot find fault with the order passed by
the trial Court. The First Appellate Court, on the wrong
premise that, merely because a partition suit is pending,
has set aside the order passed by the trial Court and the
same cannot be sustained in the eye of law.
9. Hence the following:
ORDER
i. Order dated 03.10.2023 passed by the Senior Civil
Judge, Kalaghatagi, in M.A.No.1/2023, is hereby
set aside.
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ii. Order dated 05.07.2023, passed by the Civil Judge
and JMFC, Kalaghatagi, on I.A.No.1 in
O.S.No.178/202, is hereby restored.
iii. It is hereby clarified that the trial Court in
O.S.No.9/2022 as well as O.S.No.178/2022, shall
dispose of the matters based on the evidence let
in and independently of the observations made
hereinabove.
iv. This order will not come in the way of the interim
order passed in O.S.No.9/2022, wherein the
parties are directed not to alienate the suit
schedule properties.
v. Writ petition is disposed of.
Sd/-
JUDGE
gab
Ct-mck
