Karnataka High Court
Parvathamma vs Nandish. K. S on 5 February, 2024
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NC: 2024:KHC:4760
WP No. 1661 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
WRIT PETITION NO. 1661 OF 2021 (GM-CPC)
BETWEEN:
1. PARVATHAMMA
W/O. LATE SHETTI GOWDA,
AGED ABOUT 63 YEARS,
R/AT KALLANAKATTE VILLAGE,
KASABA HOBLI,
TURUVEKERE TALUK,
TUMAKURU DISTRICT - 572 227
...PETITIONER
(BY SRI. S N BHAT.,ADVOCATE)
Digitally signed AND:
by PAVITHRA N
Location: high 1.
court of NANDISH. K. S.
karnataka S/O. LATE SHETTAPPA,
AGED ABOUT 53 YEARS,
R/AT KALLANAKATTE VILLAGE,
KASABA HOBLI,
TURUVEKERE TALUK,
TUMAKURU DISTRICT - 572 227
...RESPONDENT
(BY SRI. B G VIJAYAKUMARA SWAMY.,ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDERS
PASSED BY THE LEARNED SENIOR CIVIL JUDGE AND JMFC
TURUVEKERE IN M.A.NO.02/2019 DATED 15.12.2020 VIDE
ANNEXURE-G AND ALSO ORDERS PASSED BY THE LEARNED CIVIL
JUDGE AND JMFC TURUVEKERE IN O.S.NO.277/2017 DATED
08.01.2019 VIDE ANNEXURE-E AND ALLOW THIS WRIT PETITION
AND ETC.,
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WP No. 1661 of 2021
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING
THIS DAY, THE COURT PASSED THE FOLLOWING:
ORDER
The plaintiff in OS No.277 of 2017 on the file of the
learned Civil Judge and JMFC, Turuvekere, is seeking issuance
of writ of certiorari to quash the judgment dated 15.12.2020
passed in MA No.02 of 2019 on the file of the learned Senior
Civil Judge and JMFC, Turuvekere, confirming the order dated
08.01.2019 passed by the Trial Court, rejecting IA No.I filed
under Order 39 Rule 1 and 2 of CPC and refusing to grant of
temporary injunction in favour of the plaintiff.
2. Heard, Sri. S N Bhat, learned counsel for the
petitioner and Sri. B G Vijayakumara Swamy, learned counsel
for the respondent. Perused the materials on record.
3. Learned counsel for the petitioner submitted that
the petitioner as plaintiff filed the suit OS No.277 of 2017
seeking grant of permanent injunction against the defendant,
who is attempting to interfere with the peaceful possession and
enjoyment of the plaintiff over the schedule property. The Trial
Court initially granted ex-parte temporary injunction. But,
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however, on considering IA No.I, passed the impugned order
dated 08.01.2019 rejecting the said application. Being
aggrieved by the same, petitioner has preferred an appeal in
MA No.02 of 2019. The First Appellate Court considering the
contention of the plaintiff, dismissed the appeal and confirmed
the impugned order passed by the Trial Court. Being aggrieved
by the same, the plaintiff is before this Court.
4. Learned counsel submitted that it is the specific
contention of the plaintiff that she is in possession and
enjoyment of the property as fully described in schedule
appended to the plaint i.e., 1.30 acres of land in Sy.No.70/P5
situated at Maadihalli Village. The defendant who is in no way
concerned to the said property is disputing the possession and
entitlement of the plaintiff to be in possession of the property.
The schedule appended to the written statement filed by the
defendant is in respect of 30 guntas in Sy.No.70/P5 situated at
Kallanakere Village. Therefore, the properties described in
plaint and written statement are two different properties.
Under such circumstances, the Courts have committed an error
in rejecting the applications for grant of temporary injunction.
Accordingly, he prays for allowing the petition.
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5. On perusal of the materials on record, it is clear
that the plaintiff filed the suit for permanent injunction against
the defendant in respect of the plaint schedule property
describing it as Sy.No.70/P5 of Maadihalli Village, measuring
1.30 acres with the boundaries mentioned therein. The
defendant has appeared before the Trial Court, filed his written
statement denying the contention of the plaintiff that she is not
in possession and enjoyment of the schedule property and
stated that it is he who is in possession of the property
measuring 30 guntas in Sy.No.70/P5 of Kallanakere village with
the boundaries mentioned therein. The defendant also contends
that he has even filed the police complaint against the plaintiff
when she tried to interfere with his possession. These
pleadings and counter pleadings disclose that, both the plaintiff
and defendant are asserting the right over the same property.
Admittedly, the plaintiff has not produced any cogent material
to prima facie establish her possession over the schedule
property. Under such circumstances, it cannot be held that she
has made out prima facie case to seek temporary injunction.
The Trial Court and the First Appellate Court on proper
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appreciation of the materials on record passed the impugned
order. I do not find any reason to interfere with the same.
Hence, the writ petition is dismissed.
Sd/-
JUDGE
SPV
