Karnataka High Court

The Secretary To Government vs Mahadevamma on 16 January, 2024

                                            -1-
                                                         NC: 2024:KHC:1889
                                                     WP No. 20286 of 2017




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                        DATED THIS THE 16TH DAY OF JANUARY, 2024

                                          BEFORE
                            THE HON'BLE MRS JUSTICE M G UMA
                        WRIT PETITION NO. 20286 OF 2017 (GM-CPC)
                BETWEEN:

                1.   THE SECRETARY TO GOVERNMENT
                     REVENUE DEPARTMENT
                     MULTI STORIED BUILDING
                     BENGALURU - 560 001

                2.   THE DEPUTY COMMISSIONER
                     MYSURU DISTRICT
                     MYSURU

                3.   THE ASSISTANT COMMISSIONER
                     MYSURU SUB DIVISION
Digitally            MYSURU
signed by
PAVITHRA N
Location:       4.   THE TAHSILDAR
high court of        MYSURU TALUK
karnataka            MYSURU

                5.   THE DIRECTOR
                     NEW BROADCASTING DEPARTMENT
                     NO.17, BHAGAVAN MAHAVEER ROAD
                     NEAR SHIVAJINAGARA BUS STAND
                     BENGALURU
                                                             ...PETITIONERS
                (BY SRI KIRAN V RON., ADDITIONAL ADVOCATE GENERAL,
                    SMT ANUKANKSHA KALKERI.,HCGP)

                AND:

                1.   MAHADEVAMMA
                     W/O. LATE NAGARAJU
                               -2-
                                         NC: 2024:KHC:1889
                                    WP No. 20286 of 2017




     AGED ABOUT 60 YEARS
     R/AT UDBOOR VILLAGE
     JAYAPURA HOBLI
     MYSURU TALUK - 570 008

2.   SANNAPPA
     S/O. LATE ERANAYAKA
     AGED ABOUT 67 YEARS
     R/AT UDBOOR VILLAGE
     JAYAPURA HOBLI
     MYSURU TALUK - 570 008

3.   NARAYANA
     S/O. LATE ERANAYAKA
     AGED ABOUT 66 YEARS
     R/AT UDBOOR VILLAGE
     JAYAPURA HOBLI
     MYSURU TALUK - 570 008

4.   SANNAMMA
     D/O. LATE ERANAYAKA
     AGED ABOUT 55 YEARS
     R/AT UDBOOR VILLAGE
     JAYAPURA HOBLI
     MYSURU TALUK - 570 008

5.   RUDRA
     S/O. LATE ERANAYAKA
     AGED ABOUT 52 YEARS
     R/AT UDBOOR VILLAGE
     JAYAPURA HOBLI
     MYSURU TALUK - 570 008
                                            ...RESPONDENTS
(BY SRI. CHANDRAIAH .,ADVOCATE)

      THIS WRIT PETITION FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER OF THE
APPELLATE COURT DATED 30.3.2017 IN M.A.32/2017 ON THE FILE
OF THE IV ADDITIONAL SENIOR CIVIL JUDGE AT MYSURU AT
ANNEXURE-L HERE TO AND ALSO THE ORDER DATED 8.2.2017 ON
I.A.1 UNDER ORDER XXXIX RULES 1 AND 2 OF THE CODE OF CIVIL
                                    -3-
                                                   NC: 2024:KHC:1889
                                             WP No. 20286 of 2017




PROCEDURE, 1908 IN O.S.809/2016 ON THE FILE OF THE ADDL. II
CIVIL JUDGE AND JMFC, AT MYSURU AT ANNEX-H AND
CONSEQUENTLY, TO DISMISS THE SAID APPLICATION AND TO
ALLOW THE MISCELLANEOUS APPEAL, GRANTING COSTS THROUGOU
AND ETC.,

      THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING
IN B-GROUP THIS DAY, THE COURT PASSED THE FOLLOWING:

                              ORDER

Defendant Nos.1 to 5 in OS No. 809 of 2016 on the file of

the learned Additional II Civil Judge and JMFC at Mysuru, are

impugning the order dated 08.02.2017 passed on IA No.1 filed

under Order 39 Rules 1 and 2 of CPC and also the order dated

30.03.2017 passed in M.A.No.32 of 2017 on the file of the

learned IV Additional Senior Civil Judge at Mysuru, restraining

the defendants or anybody acting on their behalf from

interfering with the peaceful possession and enjoyment of the

plaintiffs over the suit schedule property, till disposal of the suit

by dismissing the appeal.

2. Heard, Sri Kiran V Ron., Additional Advocate

General along with Smt Anukanksha Kalkeri, learned HCGP for

the petitioners and Sri.Chandraiah, learned counsel for the

respondents. Perused the materials on record.

NC: 2024:KHC:1889

3. Learned Additional Advocate General contended

that, the respondents as plaintiffs filed the suit OS No. 809 of

2016 against defendant Nos.1 to 5 seeking grant of permanent

injunction. After service of summons, the defendants have

appeared before the Trial Court and filed their written

statement denying the ownership of the plaintiffs over the

schedule property. It is stated that the property in question is

a Government land described as Gomala land. The application

filed by the plaintiffs for grant of the said land was rejected

vide order dated 06.08.1997 by the Deputy Commissioner in

respect of Sy.No.8 measuring 5 acres. The said order was

never challenged by the plaintiffs. The said fact was also

suppressed by the plaintiffs while filing the suit. There is no

reference to the application nor there is reference to order

dated 06.08.1997 passed by the Deputy Commissioner.

However, after filing the written statement highlighting these

facts, the plaintiffs filed rejoinder admitting these facts. In the

meantime, the Deputy Commissioner passed the order dated

03.09.2016, earmarking 5 acres of land in Sy.No.8, which is

the subject matter of the suit for the purpose of construction of

NC: 2024:KHC:1889

Dr.Vishnuvardhan Smaraka Bhavana. The said order was also

not challenged by the plaintiffs till today.

5. Learned counsel submitted that the plaintiffs have

not relied on any document to contend that they are either the

owners or the possessors of the property in question. The Trial

Court has not considered these facts, but proceeded to pass the

impugned order only on the basis of letter dated 02.12.2016

addressed by the Tahsildar, Mysuru to the Deputy

Commissioner and formed an opinion that the plaintiffs are in

possession of the property. In fact, the said letter dated

02.12.2016 came into existence after passing of the order by

the Deputy Commissioner on 03.09.2016. Even if the said

letter is to be taken in to consideration, the Tahsildar has

specifically stated that Sy.No.8 measuring 6.03 acres after

Hadbasth and Durasth renumbered as survey No. 66/1, but it

must be Sy.No. 69. The extent of the land referred to in the

said letter as 3.03 acres was also wrong, as it should be 2.10

acres. Some mischief is played in writing this letter and

producing before the Court. However, even placing reliance on

this letter, the Trial Court could not have proceeded to pass the

impugned order granting temporary injunction, as the plaintiffs

NC: 2024:KHC:1889

have failed to establish their lawful possession over the

schedule property. Therefore, he prays for setting aside the

impugned order passed by the Trial Court, which was confirmed

by the First Appellate Court.

6. Per Contra, learned counsel for the respondents -

plaintiffs opposing the petition submitted that the impugned

order was passed after serving summons on the defendants.

The defendants have appeared before the Court and filed the

written statement. Therefore, it is not an ex-parte order.

Plaintiffs have relied on RTC extracts in support of their

contentions. The plaintiffs have not claimed the ownership of

the property, but they are in possession and enjoyment of the

same. Therefore, an equitable relief for permanent injunction

was sought for.

7. Learned counsel for the respondents submitted that

there is no illegality and perversity in the order passed by the

Trial Court, which is confirmed by the First Appellate Court.

Therefore, he prays for dismissal of the petition.

NC: 2024:KHC:1889

8. The plaintiffs filed the suit OS No.809 of 2016

against defendant Nos.1 to 5 seeking permanent injunction. It

is the contention of the plaintiffs as per the plaint averments

that they are in possession and enjoyment of the schedule

property, as their ancestors Late Changabingi Hanuma Naika

was the Moola Hiduvalidar and they succeeded to the property

by inheritance. Accordingly, they are in possession of the

same. It is further stated that, out of the total extent of 84.19

acres in Sy.No. 8, only 6.03 acres was retained after Hadbasth

and Durasti, as the remaining extent of land were assigned

with new Sy.Nos. 65 to 69.

9. On perusal of the documents i.e., record of rights

produced by the plaintiffs before the Trial Court discloses that

property in question is a Government Gomal land. None of the

documents produced by the plaintiffs before the Trial Court

establishes their contentions that they are in possession and

enjoyment of the property on any right. There is no reasonable

explanation as to why the plaintiffs have not pleaded regarding

rejection of their claim for grant of subject property by the

Deputy Commissioner as per his order dated 06.08.1997.

NC: 2024:KHC:1889

10. Admittedly, the said order was also not challenged

by the plaintiffs. Moreover, the materials on record discloses

that the Deputy Commissioner has passed the order dated

03.09.2016 earmarking property for specific purpose. The said

order is also not challenged by the plaintiffs till today.

11. Either pleadings of the plaintiffs or the documents

produced before the Trial Court make out any prima facie case

for grant of equitable relief of temporary injunction. However,

the Trial Court and the First Appellate Court relied on the letter

dated 02.12.2016 said to have been written by the Tahsildar,

Mysuru to the Deputy Commissioner, Mysuru, according to

which, the plaintiffs are in possession of the schedule property

in Sy.No. 8 measuring 6.03 acres. However, the letter also

goes to show that their application for regularization of their

possession was rejected vide order dated 06.08.1997 as the

same was within 10 kilometers from the city limits. The letter

also highlights that plaintiff Nos.1 and 2 were granted 3.03

acres of land in Sy.No. 8 which was re-numbered as

Sy.No.66/1.

NC: 2024:KHC:1889

12. According to the submissions made by the learned

counsel for the petitioners, the error crept in mentioning the

survey number and extent of land, as it is only 2.10 acres and

the new number in Sy.No.69. Even if the letter is to be taken

into consideration, the property that was granted to plaintiff

Nos.1 and 2 is in survey No. 66/1, which according to the

defendants should have been Sy.No. 69 and not in present

Sy.No.8. Even according to the plaintiffs, the original Sy.No. 8

after effecting Hadbasth and Durasti, re-numbered as

Sy.Nos.60 to 69 in respect of 73.26 acres of land and the

remaining extent is only 6.03 acres. Therefore, even if the

letter dated 02.12.2016 is to be taken into consideration,

plaintiffs Nos. 1 and 2 were granted the Government land in

Sy.No.66/1 and not in the original Sy.No.8 which was 6.03

acres which is the subject matter of the suit. The stray

sentence in the letter dated 02.12.2016 that the plaintiffs are in

unauthorized occupation of Sy.No.8 measuring to 6.03 acres

cannot be taken into consideration for granting the relief of

temporary injunction. When there are absolutely no other

materials in support of the contentions raised by the plaintiffs

to make out prima facie case, when the plaintiffs have

- 10 -

NC: 2024:KHC:1889

approached the Trial Court by suppressing the material facts,

they are not entitled for the relief. Moreover, the plaintiffs

have to stand on their own legs and they cannot get the

equitable relief of temporary injunction on the weaknesses of

the defendants. Therefore, I am of the opinion that the

plaintiffs have not made out any prima facie grounds for grant

of relief of temporary injunction.

12. I have gone through the impugned order passed by

the Trial Court, which was confirmed by the First Appellate

Court. The Courts have solely relied on the stray sentence in

the letter dated 02.12.2016 said to have been issued by the

Tahsildar to the Deputy Commissioner for granting the relief,

which is bad in law.

13. Hence, the following:

ORDER

(i) The writ petition is allowed.

(ii) The order dated 08.02.2017 passed in OS No. 809

of 2016 on the file of the learned Additional II Civil Judge and

JMFC at Mysuru on IA No.1 filed under Order 39 Rules 1 and 2