Karnataka High Court
Sri. B J Nagaraja vs Sri. Shivakumarappa on 28 November, 2023
Author: S.G.Pandit
Bench: S.G.Pandit
-1-
NC: 2023:KHC:42894
WP No. 19028 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S.G.PANDIT
WRIT PETITION NO. 19028 OF 2023 (GM-CPC)
BETWEEN:
1. SRI. B.J.NAGARAJA
S/O LATE JAYAPPA,
AGED ABOUT 50 YEARS,
AGRICULTURIST,
R/AT HIREBENNURU VILLAGE,
BHARAMASAGARA HOBLI,
CHITRADURGA TALUK
AND DISTRICT 577501
2. SRI MURIGEPPA,
S/O LATE KENCHAPPA,
AGED ABOUT 69 YEARS,
AGRICULTURIST,
R/O ERULLI MARKET ROAD,
NEAR RAILWAY UNDER BRIDGE,
LORRY TRANSPORT OFFICE,
DAVANAGERE CITY - 57001.
...PETITIONERS
Digitally signed
by A K
CHANDRIKA (BY SRI.KANTHARAJAPPA M G., ADVOCATE)
Location: HIGH
COURT OF
KARNATAKA AND:
1. SRI. SHIVAKUMARAPPA
S/O LATE BAVIMANE DYAAPPA,
AGED ABOUT 73 YEARS,
AGRICULTURIST
2. SRI. S. MALIKARJUNA,
S/O SHIVAKUMARAPPA,
AGED ABOUT 39 YEARS,
AGRICULTURIST
BOTH ARE R/O HIREBENNURU VILLAGE,
BHARAMASAGARA HOBLI,
-2-
NC: 2023:KHC:42894
WP No. 19028 of 2023
CHITRADURGA TALUK
AND DISTRICT - 577501.
...RESPONDENTS
(BY SRI.R.SHASHIDHARA., ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH ORDER PASSED BY
THE LEARNED I ADDL. SENIOR CIVIL JUDGE AND JMFC AT
CHITRADURGA IN M.A.NO.17/2022 DTD 04.08.2023 PRODUCED AS
ANNEXURE-G AND LEARNED III ADDL CIVIL JUDGE AND JMFC AT
CHITRADURGA IN OS.NO.343/2021 DTD 20.04.2022 IN I.A.NO.3
PRODUCED AS ANNEXURE-E TO THE WRIT PETITION.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioners, defendants in O.S.No.343/2021 on the
file of the III Additional Civil Judge and JMFC., Chitradurga
(for short, 'Trial Court') are before this Court aggrieved by
order dated 20.04.2022 allowing I.A.No.3 filed by
respondents/plaintiffs under Order XXXIX Rules 1 and 2 of
CPC and also judgment dated 04.08.2023 in
M.A.No.17/2022 on the file of the I Additional Senior Civil
Judge and JMFC., Chitradurga (for short, 'Appellate
Court'), confirming the order dated 20.04.2022 passed in
O.S.No.343/2021 by the Trial Court.
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2. Heard the learned counsel
Sri.Kantharajappa.M.G., for petitioners/defendants and
learned counsel Sri.R.Shashidhara for
respondents/plaintiffs. Perused the writ petition papers.
3. Learned counsel for the petitioners/defendants
would submit that suit of the respondents/plaintiffs is one
for permanent injunction not to interfere with peaceful
possession and enjoyment of plaintiffs over the suit
schedule property. Suit schedule property is Sy.No.31/1
measuring 28 guntas including 2 guntas of Kharab,
situated at Hirebennur Village, Bharamasagara Hobli,
Chitradurga Taluk. Learned counsel for the
petitioners/defendants would submit that it is the absolute
property of petitioners/defendants and respondents/
plaintiffs have no manner of right, title and interest in the
suit schedule property. Learned counsel would submit that
both the Courts below granted injunction to the
respondents/plaintiffs based on the unregistered
agreement of sale dated 04.05.1981. Learned counsel
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would further submit that grandfather of
petitioners/defendants i.e., Kenchappa had purchased the
suit schedule property on 05.08.1929 and they are in
possession since then. Revenue proceedings between the
parties are pending and revenue records stand in the
name of the petitioners. It is submitted that Courts below
without considering the documents placed on record,
proceeded to grant injunction only placing reliance on the
unregistered sale agreement dated 04.05.1981. Thus, he
prays for allowing the writ petition.
4. Per contra, learned counsel Sri.R.Shashidhara
would submit that original owners of the suit schedule
property executed agreement of sale dated 04.05.1981 to
the respondents/plaintiffs and the said agreement of sale
would indicate that possession of the land is handed over
on the date of execution of agreement itself. Since the
date of agreement to sell, respondents/plaintiffs are in
possession of the suit schedule property. Learned counsel
would support the orders passed by both the Courts below
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and submits that as on the date of filing, it is for the
parties to prove their possession over the suit schedule
property and all other issues are matter for trial.
Therefore, he prays for dismissal of the writ petition.
5. On hearing the learned counsel for the parties
and on perusal of the writ petition papers, I am of the
view that no ground is made out to interfere with the
concurrent findings of the courts below, granting
injunction in favour of respondents/plaintiffs, restraining
the defendants/petitioners from interfering with the
peaceful possession and enjoyment by the plaintiffs over
the suit schedule property.
6. Normally, under Article 227 of the Constitution
of India, concurrent findings would not be interfered with,
unless exceptional ground is made out.
7. The plaintiffs' suit is for permanent prohibitory
injunction against the defendants from entering into the
suit schedule property or interfering with the peaceful
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possession and enjoyment by the plaintiffs over the suit
schedule property. The plaintiffs claim their lawful
possession over the suit schedule property under
agreement of sale dated 04.05.1981, wherein the
possession of land was also handed over on the date of
execution of agreement. It is the case of the respondents/
plaintiffs that the land originally belonged to one Papajja
and he had filed suit for declaration against plaintiffs'
mother Gangamma in O.S.No.265/1979 which was
decreed in favour of Papajja. Thereafter, his sons namely
Gadrappa and P.Thippeswamy executed agreement of sale
dated 04.05.1981 and also handed over possession of the
suit schedule property to the plaintiffs. By virtue of
unregistered sale agreements, the respondents/plaintiffs
claim their possession, whereas the petitioners/defendants
claim written statement schedule property stating that it is
the property of their grandfather Kenchappa who had
purchased the same in the year 1970-71 and thereafter,
as per registered partition deed dated 01.07.2020,
partition was effected and based on the said partition,
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katha has been changed to the name of
petitioners/defendants.
8. The trial Court, on scrutiny of material placed
on record by the plaintiffs i.e., unregistered sale
agreement dated 04.05.1981, M.R., RTC., Gift Deed dated
20.08.2015 and other documents has found that
respondents/plaintiffs have made out prima-facie case and
allowed I.A.No.3 and restrained the defendants from
interfering with the peaceful possession and enjoyment by
the plaintiffs over the suit schedule property. The
Appellate Court, on scrutiny of the trial Court order as well
as documents on record, confirmed the order passed by
the trial Court. The Appellate Court observed that
unregistered sale agreement clearly stated that possession
of the property was handed over and the same would be
sufficient to establish prima-facie case. At the stage of
considering application filed under Order XXXIX Rules 1
and 2 of CPC, the parties shall have to establish their
lawful possession over the suit schedule property. In the
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instant case, the plaintiffs have show their lawful
possession over the suit schedule property by virtue of
agreement of sale wherein the possession is also handed
over. The plaintiffs have established prima-facie case and
they have satisfied ingredients for grant of injunction, i.e.,
prima-facie case and balance of convenience in their
favour.
There is no merit in the writ petition and the writ
petition stands rejected.
Sd/-
JUDGE
NC
