Karnataka High Court
Sri. Hanumanthappa vs Sri Ramappa on 6 February, 2024
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WP No. 11228 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
WRIT PETITION NO. 11228 OF 2021 (GM-CPC)
BETWEEN:
1. SRI. HANUMANTHAPPA
S/O LATE SANNA LAKKAPPA
AGED 69 YEARS,
R/AT DEVAPURADAHATTY VILLAGE,
CHITRADURGA TALUK
CHITRADURGA DISTRICT-577 527
...PETITIONER
(BY SRI. PRASANNA KUMAR R S.,ADVOCATE)
Digitally signed
by PAVITHRA N AND:
Location: high
court of
karnataka 1. SRI RAMAPPA
S/O LATE POOJAPPA
AGED 63 YEARS,
R/AT DEVAPURADAHATTY VILLAGE,
CHITRADURGA TALUK,
CHITRADURGA DISTRICT-577 527
2. SRI.P.R.HARISH
S/O SRI.RAMAPPA
AGED 28 YEARS,
R/AT DEVAPURADAHATTY VILLAGE,
CHITRADURGA TALUK,
CHITRADURGA DISTRICT-577 527
3. SRI.P.R.SANJAY
S/O SRI.RAMAPPA
AGED 25 YEARS,
R/AT DEVAPURADAHATTY VILLAGE,
CHITRADURGA TALUK,
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WP No. 11228 of 2021
CHITRADURGA DISTRICT-577 527
4. SRI.P.R.RAMANJANI
S/O SRI RAMAPPA
AGED 21 YEARS,
R/AT DEVAPURADAHATTY VILLAGE,
CHITRADURGA TALUK,
CHITRADURGA DISTRICT-577 527
...RESPONDENTS
(BY SRI. KANTHARAJAPPA M G.,ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED
11.09.2019 IN MA.NO.5/2017 ON THE FILE OF II ADDITIONAL
SENIOR CIVIL JUDGE AT CHITRADURGA, VIDE ANNEXURE-A SO
THAT THE ORDER OF TEMPORARY INJUNCTION GRANTED BY THE
PRINCIPALL CIVIL JUDGE AND JMFC, AT CHITRADURGA SHALL
CONTINUE / OPERATE AGAINST THE RESPONDENTS / DEFENDANTS
IN O.S.NO.424/2016, DURING THE PENDENCY OF THE SUIT IN
O.S.NO.424/2016 AND ETC.,
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING
IN B-GROUP THIS DAY, THE COURT PASSED THE FOLLOWING:
ORDER
The plaintiff in OS No.424 of 2016 on the file of the
learned II Additional Civil Judge, Chitradurga, is seeking grant
of writ of certiorari to quash the judgment dated 11.09.2019
passed in MA No.5 of 2017 on the file of the learned II
Additional Senior Civil Judge, Chitradurga, by allowing the
appeal to set aside the order passed by the Trial Court and to
dismiss the application IA No.2.
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2. Heard Sri. Prasanna Kumar R S learned counsel for
the petitioner and Sri. Kantharajappa M G, learned counsel for
the respondent Nos. 1 to 4. Perused the materials on record.
3. Learned counsel for the petitioner contended that
the petitioner has filed the suit OS No.424 of 2016 seeking
perpetual injunction and filed IA No.2 under Order XXXIX Rules
1 and 2 seeking temporary injunction. The said application was
allowed by the Trial Court. The defendants have challenged the
same by preferring MA No.5 of 2017. The First Appellate court
ignoring the materials on record, allowed the appeal by setting
aside the impugned order passed by the Trial Court and
consequently, dismissed IA No.2. Therefore, the plaintiff is
before this Court.
4. Learned counsel submits that the family genealogy
is furnished by the petitioner. The petitioner is the natural son
of Poojappa, who in turn is the son of Obappa. Plaintiff was
given in adoption to Sanna Lakkappa and his wife is Boramma,
Sanna Lakkappa is none other than the brother of Obappa.
Defendants are natural brothers of the plaintiff. By mistake,
plaintiff had filed the suit for seeking partition and separate
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possession of the family property. However, the said suit came
to be dismissed. After realizing his mistake, the plaintiff had
filed the present suit for perpetual injunction.
5. Learned counsel contended that there was a
registered adoption deed dated 05.06.1970 giving the plaintiff
in adoption to Sanna Lakkappa and Boramma and there is
reference to the schedule property and therefore, after
adoption, plaintiff is entitled for schedule properties. The
defendants never challenged the said adoption deed. The
record of right refers to the name of the plaintiff after death of
Sanna Lakkappa and Boramma. The Trial court rightly granted
temporary injunction, but the First Appellate Court committed
error in dismissing the application. Hence, he prays for
allowing the petition.
6. Learned counsel further submitted that as per the
registered adoption deed dated 05.06.1970, the plaintiff was
taken in adoption by Sannalakkappa with the approval of
natural parents and the wife of adoptive father. The natural
father and the mother of respondent No.1 have signed the
adoption deed. The recitals in the adoption deed would
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demonstrate that it was the adoptive father Sannalakkappa was
in possession and enjoyment of Sy.No.75/1, measuring 3 acres
35 guntas, Sy.No.94/3, measuring 1.14 acres and
Sy.No.103/3, measuring 1 acre 21 guntas. Till today, the
revenue records stand in the name of the petitioner.
7. Learned counsel submitted that the petitioner has
produced the pattabook for the year 2014-15 where there is
reference to the suit property. However, during 2015-16,
Sy.No.94/1 of Pandarahally was renumbered and assigned new
number as 94/3. This fact is evidenced by mutation register
extract for the year 2015-16. In respect of 1 acre 14 guntas of
land in Sy.No.94/3, name of the plaintiff i.e., P.
Hanumanthappa, being the adoptive son of Sannalakkappa is
mentioned as the person in possession of the property.
Learned counsel also submitted that apart from the pattabook
to support the contention of the petitioner, he has also
produced three tax paid receipts for the years 2017-18, 2019-
20 and 2020-21 in respect of the suit property.
8. Per contra, learned counsel for the respondents
opposing the petition submitted that, the adoption deed cannot
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be considered as a partition deed. There is reference to
Sy.Nos.75/1 and 103/3. However, there is no reference to the
second item of the schedule property i.e., 94/3. Property
referred to in the adoption deed is Sy.No.94/1. It is the
defendants who are in possession of the property and paying
the revenue. The RTC stands in the name of the defendants.
Under such circumstances, the plaintiff cannot seek permanent
injunction.
9. Learned counsel also submitted that the plaintiff
had filed the suit for partition and separate possession in
respect of the very same property. The same came to be
dismissed. Under such circumstances, the plaintiff cannot seek
permanent injunction in respect of the schedule property.
Accordingly, he prays for dismissal of the petition.
10. Learned counsel for the respondents further
submitted that in the suit OS No.27 of 2010 filed by the
petitioner as plaintiff seeking partition and separate possession
of the schedule properties including the present schedule
properties, he had claimed that he is in joint possession of the
property. Such contention is entirely against the contention
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taken in the present petition that he is in exclusive possession
of the property and therefore, the same cannot be accepted.
Learned counsel also submitted that mutation of Revenue
entries in the name of the petitioner was opposed by the
respondents by filing an appeal before the Assistant
Commissioner. Writ Petition No.14908 of 2020 is filed against
the order rejecting the appeal preferred by the respondents.
The said writ petition is still pending and the mutation order in
the name of the petitioner is stayed. Learned counsel also
submitted that the respondents are in exclusive possession and
enjoyment of the property and since 1982, they are paying the
revenue till day. The description of the property in the
adoption deed is entirely different from the description of the
property in the plaint. Under such circumstances, the
petitioner cannot succeed in getting the temporary injunction.
The First Appellate Court on proper appreciation of the
materials on record, rightly allowed the appeal. There are no
reasons to interfere with the same.
11. The undisputed fact is that the petitioner is the
natural brother of the respondents. It is the specific contention
of the petitioner that he was adopted by his uncle
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Sannalakkappa under the registered adoption deed dated
05.06.1970. This fact is not in dispute. The plaintiff had field
suit OS No.27 of 2010 claiming his share in the schedule
properties mentioned therein as the son of his natural father.
The said suit came to be dismissed. Thereafter, the petitioner
filed the present suit seeking perpetual injunction, in respect of
three items of property more fully described in the schedule.
12. The copy of registered adoption deed dated
05.06.1970 is produced before this Court. The recitals in the
registered adoption deed which is admitted by both parties,
disclos that the natural father and mother of the petitioner and
father of respondent are consenting witnesses to the adoption
deed and they have subscribed their signatures to the adoption
deed. Recitals in the adoption deed discloses that, there was a
partition amongst the brothers and since then Sy.No.75/1
measuring 3.35 acres, Sy.No. 94/1 measuring 1.14 acres and
Sy.No. 103/3 measuring 1.21 acres are in exclusive possession
and enjoyment of Sannalakkappa, the adoptive father of the
petitioner. The father and mother of the respondents
subscribed their signatures to the adoption deed thereby,
admitting the recitals in the adoption deed to the effect that
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there was already a partition between the brothers and
Sannalakkappa is enjoying these three items of properties.
13. The adoption deed refers to Sy.No.75/1 measuring
3.35 acres, Sy.No.94/1 measuring 1.14 acres and Sy.No.103/3
measuring 1.09 acres. The plaint schedule refers to Sy.No.75/1
measuring 3.35 acres, Sy.No.94/3 measuring 1.14 acres,
Sy.No.103/3 measuring 1.21 acres. Learned counsel for the
petitioner has produced additional documents, which supports
his contentions that Sy.No.94/1 mentioned in the adoption
deed is re-numbered as Sy.No.94/3. Learned counsel for the
petitioner has also produced the revenue receipts for having
paid the tax for the period from 1917-18 till 2021 in respect of
the schedule property. All these facts and circumstances and
the documents probabalise the contention of the petitioner that
the adoptive father was in possession and enjoyment of the
schedule properties.
14. Learned counsel for the respondents produced the
copies of the revenue receipts for the year 1983, 1988, 2006,
2008-2010 and 2014. It is pertinent to note that in the revenue
receipts produced by the petitioner and respondents, there is
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no continuity and they have paid the revenue occasionally and
therefore, no credence can be attached for payment of
revenue by both the parties. However, the materials on record
disclose that the Tahsildar has mutated the name of the
petitioner in the revenue record and the same was accepted by
the Assistant Commissioner. However, it is stated that WP
No.14908 of 2020 is pending consideration before this Court
and the order of mutation is stayed. Even if payment of
revenue and the mutation in the name of the petitioner are
ignored, there is absolutely no explanation regarding the
recitals found in the registered adoption deed to which the
father and mother of the respondents were parties. When
there is clear recitals in the adoption deed which was executed
at an un-disputed point of time, I do not find any merit in the
contention taken by the respondents to oppose granting the
order of temporary injunction. Simply because, the petitioner
had filed suit OS No.27 of 2010 claiming partition in the
properties of his natural father, the same cannot be a reason to
reject his claim, even in respect of properties of his adoptive
father. It is for the parties to lead evidence in support of their
contentions and the Trial Court is required to consider the rival
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contentions to give final verdict, after full-fledged trial. It is
suffice to say that the petitioner being the plaintiff is entitled
for temporary injunction with respect of the schedule
properties, till disposal of the suit.
15. I have gone through the impugned order passed by
the First Appellate Court. It has placed reliance on the earlier
suit OS No.27 of 2010 filed by the plaintiff and formed an
opinion that the plaintiff has stated that he is in joint
possession and enjoyment of the property and therefore, the
plaintiff is not in exclusive possession and enjoyment of the
properties. The same cannot be accepted in the light of specific
recitals found in the adoption deed. Therefore, I am on the
opinion that the impugned judgment is liable to be set aside.
16. Accordingly, I proceed to pass the following:
ORDER
(i) The Writ Petition is allowed.
(ii) The judgment dated 11.09.2019 passed in
M.A.No.05 of 2017 by the learned II Additional Senior Civil
Judge, Chitradurga, is hereby set aside.
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(iii) Consequently, IA No.II is allowed. The respondents
are restrained by way of temporary injunction from interfering
with the plaintiff's peaceful possession and enjoyment of the
suit schedule property, till disposal of the suit.
Sd/-
JUDGE
SPV/PN
