Karnataka High Court
M.S Bheemanna vs Smt. Nagamma on 7 February, 2024
-1-
NC: 2024:KHC:5263
WP No. 3322 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
WRIT PETITION NO. 3322 OF 2020 (GM-CPC)
BETWEEN:
1. M.S BHEEMANNA
S/O SANNA HANUMAPPA
HINDU, AGED ABOUT 67 YEARS
R/AT DODDASIDDAVVANAHALLY VILLAGE
KASABA HOBLI
CHITRADURGA - 577 598
2. H VISHWANATHA
S/O SANNA HANUMAPPA
AGED ABOUT 64 YEARS
R/AT DODDASIDDAVVANAHALLY VILLAGE
KASABA HOBLI
CHITRADURGA - 577 598
...PETITIONERS
(BY SRI. MURTHY K.,ADVOCATE)
AND:
Digitally signed 1. SMT. NAGAMMA
by PAVITHRA W/O ANJINAPPA
N AGED ABOUT 51 YEARS
Location: high R/AT DODDA SIDDAVVANAHALLY VILLAGE
court of KASABA HOBLI
karnataka CHITRADURGA - 577 598
2. ANJINAPPA
S/O SANNA HANUMAPPA (BIKKAPPA)
AGED ABOUT 53 YEARS
R/AT DODDA SIDDAVVANAHALLY VILLAGE
KASABA HOBLI
CHITRADURGA - 577 598
3. THE PANCHAYATH DEVELOPMENT OFFICER (PDO)
DODDASIDDAVVANAHALLI VILLAGE
KASABA HOBLI
CHITRADURGA - 577 598
-2-
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WP No. 3322 of 2020
4. THE EXECUTIVE OFFICER (E.O)
TALUK PANCHAYATH,
CHITRADURGA - 577 598
...RESPONDENTS
(BY SRI. N PRAVEEN KUMAR.,ADVOCATE FOR R4
R1 TO 3 -SERVED-UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO-CALL FOR ENTIRE RECORDS
AND SET ASIDE THE ORDER AT ANENXURE-A DATED 11.12.2019 IN
M.A.NO.1/2019 PASSED BY THE 1ST ADDITIONAL SENIOR CIVIL
JUDGE, CHITRADURGA AND CONFIRM THE ORDERS DATED
19.12.2018 PASSED IN O.S.NO.26/2018 ON I.A.NO.2 AND 3 BOTH
UNDER ORDER XXXIX RULE 1 AND 2 R/W SECTION 151 OF CPC
GRANTING THE TEMPORARY INJUNCTION BY THE 2ND ADDITIONAL
CIVIL JUDGE AND JMFC, CHITRADURGA BY ALLOWING THIS WRIT
PETITION AND ETC.,
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING
IN B-GROUP THIS DAY, THE COURT PASSED THE FOLLOWING:
ORDER
The plaintiffs in OS No.26 of 2018 on the file of the
learned II Additional Civil Judge, Chitradurga, are seeking to
quash the order dated 11.12.2019 passed in MA No.1 of 2019
on the file of the learned I Additional Senior Civil Judge,
Chitradurga , allowing the appeal and setting aside the order
dated 19.12.2018 passed by the Trial Court allowing IA Nos. 2
and 3 granting temporary injunction against defendant Nos. 1
to 4 under two different applications.
2. Heard Sri. Murthy K, learned counsel for the
petitioners and Sri. N Praveen Kumar, learned counsel for the
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respondent No.4. Respondent Nos.1 to 3 are served and
unrepresented. Perused the materials on record.
3. Learned counsel for the petitioners submitted that
the petitioners as plaintiffs have filed the suit OS No. 26 of
2018 seeking permanent and mandatory injunction against the
defendants. The plaintiffs have filed an application - IA.2
seeking direction to defendant Nos. 1 and 2 not to put up
construction in 'B' Schedule property and to remove the
unauthorized construction made on 'B' Schedule property and
filed IA.3 seeking direction to defendant Nos. 3 and 4 not to
disburse financial benefits in favour of defendant Nos. 1 and 2,
to enable them to construct the structure over 'B' Schedule
property. Both the applications were allowed by the Trial Court
vide order dated 19.12.2018. Defendant No.1 challenged the
order allowing IA No.2 by filing MA No.1 of 2019. The First
Appellate Court without application of mind, allowed the appeal
by setting aside the order passed on both IA Nos. 2 and 3.
The First Appellate Court committed an error in setting aside
the order passed by the Trial Court on IA.3.
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4. Learned counsel further submitted that the plaintiffs
are claiming right over the schedule property under the
registered partition deed dated 15.04.1991, whereunder the
property had fallen to the share of the plaintiffs and katha
stands in their name. Schedule property is described as
property No. 231/1 measuring 80 x 40 feet. The 'B' Schedule
property measures 40 x 34 feet which is the portion of 'A'
Schedule property, where the defendants started constructing
the building by getting financial help from defendant Nos. 3 and
4.
5. Learned counsel submitted that the defendants filed
the written statement taking specific contention that they
acquired title over the property under "Oppige Pathra" in
respect of property bearing No.230 measuring 18 x 24 feet.
But no such document was produced before the Trial Court.
However, defendant Nos. 3 and 4 have issued the license on
the basis of so called "Oppige Pathra", which is admittedly an
unauthorized document. Even though, the said document was
produced as an additional document before the Trial Court by
filing IA No.2 under Order 41 Rule 27 of CPC, the same was
rejected by the Court. Therefore, it is clear that the defendants
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are claiming right over different properties bearing No.230
measuring 18 x 24 feet, which is admittedly not the schedule
property. Moreover, the title deed on which the defendants are
relying was never produced before the Court. Under such
circumstances, the Trial Court allowed IA Nos. 2 and 3 granting
temporary injunction, but the First Appellate Court proceeded
to allow the appeal only on the ground that, defendant Nos. 3
and 4 have issued license for construction of the building and
therefore, defendant Nos. 1 and 2 cannot restrain by
proceeding with the construction work. The said applications
rejected by the First Appellate Court is perverse and illegal and
the same is liable to be set aside.
submitted that they are only formal parties being the
Panchayath Development Officer (PDO) and Taluk Panchayath
and they will abide by the orders of the Court.
7. As per the averments made in the plaint, the
plaintiffs are claiming right over the 'A' Schedule property i.e.,
property No. 231/1 measuring East to West by 80 feet, North
to South by 40 feet. It is the specific contention of the
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plaintiffs that the said property had fallen to their share under
the registered partition deed dated 15.04.1991 entered into
between his family members. The Katha stands in the names
of the plaintiffs. It is further contention of the plaintiffs that 'B'
schedule property measuring 40 x 34 is the portion of the 'A'
schedule property and defendants started to make construction
by laying the foundation un-authorizedly. Therefore, mandatory
injunction was sought against defendant Nos. 1 and 2 from
proceeding with construction work. In respect of 'A' schedule
property, they are seeking perpetual injunction restraining
defendants from interfering with their possession and
enjoyment of the property.
8. The written statement filed by defendants is
produced before the Court, wherein, the defendants have
claimed right over the property bearing No. 230 new number
251 measuring 18 x 24 feet and it is stated that they have
acquired title under the "Oppige Pathra". Strangely, the said
'Oppige Pathra' is not produced before the Trial Court or before
this Court. The impugned judgment passed in MA No.1 of 2019
discloses that IA No.2 was filed under Order 41 Rule 27 of CPC
seeking permission to produce additional documents. The said
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application came to be dismissed by the First Appellate Court.
The First Appellate Court referred to the said document as a
consent deed which is an unregistered deed and therefore, the
application to produce the same was dismissed. When the suit
schedule property over which the plaintiffs are claiming right is
entirely different property bearing No.231/1 measuring East to
West 80 feet, North to South 40 feet and there was a
registered partition deed in support of the contention of the
plaintiffs, they are entitled for grant of temporary injunction
against the defendants. Accordingly, the Trial Court allowed IA
Nos. 2 and 3.
9. The copy of memorandum of appeal filed before the
First Appellate Court in MA No.1 of 2019 was produced before
the Court and wherein defendant Nos. 1 and 2 as appellants
challenged the order dated 19.12.2018 passed on IA No.2. But
there is no challenge to IA No.3 as rightly contended by the
learned counsel for the petitioners. However, the First
Appellate Court without taking into consideration any of these
facts, proceeded to allow the appeal by setting aside the order
passed by the Trial Court on both IA Nos.2 and 3, that shows
non application of mind by the First Appellate Court. There was
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no reason to justify the impugned judgment passed by the First
Appellate Court. The only reason assigned by the First
Appellate Court is that defendant Nos. 3 and 4 have issued
license for construction of the building on the basis of consent
deed and therefore, defendant Nos. 1 and 2 cannot be
restrained by way of temporary injunction. The said finding of
the First Appellate Court is not only perverse, is illegal and
liable to be set aside.
10. In view of the above, I proceed to pass the
following:
ORDER
(i) Writ petition is allowed.
(ii) The judgment dated 11.12.2019 passed in MA No.1
of 2019 on the file of the learned I Additional Senior Civil
Judge, Chitradurga, is hereby set aside.
Sd/-
JUDGE
SPV,
