Karnataka High Court
Yankamma Alias Kamalamma W/O Lakshmana ... vs Dileep S/O Narayan Raikar on 31 July, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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WP No. 101452 of 2024
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 31ST DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
WRIT PETITION NO. 101452 OF 2024 (GM-CPC)
BETWEEN:
YANKAMMA @ KAMALAMMA
W/O. LAKSHMANA DIVATAR,
AGE: 77 YEARS, OCC: HOUSEHOLD,
TQ: MEDIKINHAL VILLAGE,
TQ: LINGASUGUR, DIST: RAICHUR,
NOW R/O. GHASI BAZAR, NEAR AZAD CIRCLE,
KOPPAL-583231.
...PETITIONER
(BY SRI. SUBHASH J. BADDI, ADVOCATE)
AND:
1. DILEEP S/O. NARAYAN RAIKAR,
AGE: 57 YEARS, OCC: GOLDSMITH,
2. SMT. DEEPA W/O. DILEEP RAIKAR,
AGE: 52 YEARS, OCC: HOUSEHOLD,
Digitally signed
by SAROJA
HANGARAKI BOTH ARE R/O. NEAR AZAD CIRCLE,
Location: HIGH
COURT OF
KARNATAKA
JAWAHAR ROAD, KOPPAL,
DHARWAD
BENCH
TQ: AND DISTRICT: KOPPAL-583231.
Date: 2024.08.01
14:56:46 +0530
3. MANOHAR S/O. KRISHNAJI RAO BOMBLEKAR,
AGE: 60 YEARS, OCC: TAILORING,
4. RAMESH S/O. KRISHNAJI RAO BOMBLEKAR,
AGE: 57 YEARS, OCC: MECHANIC,
BOTH ARE R/O. GHAZI BAZAAR, NEAR AZAD CIRCLE,
JAWAHAR ROAD, KOPPAL-583231.
...RESPONDENTS
(BY SRI. B. SHARANABASAWA, ADV. FOR R1 & R2;
R3 & R4 ARE SERVED)
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WP No. 101452 of 2024
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF
CERTIORARI OR ANY OTHER WRIT, ORDER OR DIRECTION TO
QUASH THE IMPUGNED ORDER PASSED BY THE COURT OF THE
SENIOR CIVIL JUDGE AND CJM., KOPPAL IN M.A. NO.2/2022 ORDER
DATED 01-02-2024 VIDE ANNEXURE-M.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE H.P.SANDESH
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE H.P.SANDESH)
1. Though this matter is listed for orders, with the
consent of counsel for the petitioner as also the counsel
for the respondents No.1 and 2, it is taken up for final
disposal.
2. This writ petition is filed praying this Court to
quash the impugned order passed by the Court of Senior
Civil Judge and CJM, Koppal in M.A.No.2/2022 dated
01.02.2024 vide Annexure-M.
3. The factual matrix of the case of the petitioner
is that he is the plaintiff before the Trial Court in
O.S.No.47/2022 and inter alia he has sought for the relief
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of temporary injunction by filing an application under
Order XXXIX Rules 1 and 2 of CPC against the defendants
No.1 and 2 restraining them from putting up construction
of building in 'EFCD' area of the suit schedule property of
the plaintiff till the disposal of the suit.
4. In the plaint it is contended that while seeking
the relief of declaration and mandatory injunction and
permanent injunction against the defendants, that one
Kashinath was the absolute owner in possession of the suit
schedule property and he died on 01.12.2002. The plaintiff
is the only class-I legal heir of Kashinath. This being the
fact, defendants No.3 and 4 illegally mutated the suit
schedule property in their names and defendants No.1 and
2 have encroached the area of 3x67 feet in the suit
schedule property and constructing building and hence,
the plaintiff has approached the competent authorities for
her grievances. But the concerned authorities have not
taken any action. Hence, the plaintiff filed the suit and
sought for interim relief.
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5. It is the contention of the plaintiff that
Kashinath is the absolute owner in possession of the suit
schedule property and he has no class-I legal heirs except
the plaintiff but defendants No.3 and 4 are the sister's
children of Kashinath and they have illegally mutated the
suit schedule property in their names. Defendants No.1
and 2 are constructing building by encroaching the
property of the plaintiff measuring 3x67 feet and hence
the plaintiff sought for the relief.
6. Defendants No.1 and 2 appeared before the
Court and filed written statement to the I.A. contending
that the plaintiff has filed false and frivolous suit and
documents produced by the plaintiff show that the suit
property is standing in the name of defendants No.1 and
2. Further, they have denied the relationship between the
plaintiff and Kashinath. Defendants No.1 and 2 further
contend that the plaintiff has created story and cause of
action and filed the present suit only with an intention to
harass defendants No.1 and 2. Defendants No.1 and 2
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further contend that defendants No.3 and 4 have filed suit
against defendants No.1 and 2 seeking recovery of
possession measuring 4x62 feet in O.S.No.241/2008
before this Court and the same has been dismissed and
the same is also affirmed in R.A.No.36/2009. Defendants
No.3 and 4 admitted portion of the possession over the
suit property and hence they have colluded with the
plaintiff and filed the present suit against defendants No.1
and 2 and there is no any encroachment by them and
hence prayed the Court to dismiss the application.
7. The Trial Court having considered the grounds
urged in the application and also the contention of the
defendants No.1 and 2, allowed the application and
restrained the defendants No.1 and 2 from further
construction over the 'EFCD' area of property.
8. Being aggrieved by allowing of the application,
Misc. Appeal No.2/2022 was filed by the defendants No.1
and 2 before the Senior Civil Judge and CJM, Koppal. The
said Court having considered the grounds urged in the
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appeal memo and having taken note of the measurement
which has been stated in the plaint as well as Form No.3
and also the earlier suit filed by defendants No.3 and 4
against defendants No.1 and 2, comes to the conclusion
that when the suit filed by defendants No.3 and 4 in
O.S.No.241/2008 was dismissed and confirmed as also
taking into note of the construction made by the plaintiff
to the entire extent of property belonging to the plaintiff,
comes to the conclusion that there was no any
encroachment and the construction put up by the
defendants No.1 and 2 is also not in the property of the
plaintiff and set aside the order passed on the application
and reversed the findings of the Trial Court and
consequently dismissed the application filed under Order
XXXIX Rule 1 and 2.
9. Being aggrieved by the said reversal of the
order passed by the First Appellate Court, the present
petition is filed before this Court.
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10. The main contention of the petitioner before
this Court is that she is the class-II heir of the original
owner Kashinath and she is the owner of the landed
property situated at Ghasi Bazar, Koppal bearing MB
No.13-1-9-14 measuring totally 137.96 sq.mtrs. and she
has also produced the RTC and other documents to
establish that she is claiming declaration that she is the
owner of the suit schedule property and defendants No.1
and 2 have illegally started the construction of new
building making encroachment to the extent of 3x67 sq.ft.
11. The Trial Court having considered the material
and record has rightly granted the relief of temporary
injunction and the First Appellate Court has committed an
error in coming to the conclusion that already the plaintiff
has constructed the entire property and no portion is left
in the property and hence the question of encroachment
does not arise, which finding is erroneous.
12. Learned counsel for the petitioner would
vehemently contend that the learned Judge failed to
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consider the material on record and the reasoning given
by the First Appellate Court is contrary to the discussion
made by the Trial Court while allowing the appeal. The
First Appellate Court ought to have considered the
material on record and committed an error and hence this
Court has to grant an interim order to restore the order of
the Trial Court in granting the relief of temporary
injunction against defendants No.1 and 2. He further
submits that if the defendants No.1 and 2 are allowed to
continue to put up the construction, the plaintiff's rights
will be prejudiced.
13. The counsel also vehemently contends that
while reversing the finding of the Trial Court, the First
Appellate Court has committed an error in considering the
earlier judgment of dismissal of the suit filed by
defendants No.3 and 4. The counsel also vehemently
contends that even this Court can give a direction to the
Trial Court to dispose of the matter in a time bound period
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and if construction is made, thereafter the same cannot be
set-righted later.
14. Per contra, the counsel appearing for the
respondents/defendants No.1 and 2 would vehemently
contend that the Trial Court failed to consider the material
on record and First Appellate Court having considered the
material and record, passed the reversal order and
reasons are also assigned taking into note of the claim
made by the plaintiff to the extent of her property and also
taken note of Form No.3, which also clearly discloses that
whatever the property she was having, she had put up the
construction to the entire extent of 137 square meters and
she has not left any open space and hence the question of
construction by making encroachment does not arise.
15. Even the First Appellate Court also taken note
of the earlier suit filed by the defendants No.3 and 4
against the defendants No.1 and 2 wherein also they
claimed encroachment to the extent of 4x67 sq.ft. and the
said claim is also rejected. Hence, now the question of
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considering the encroachment once again does not arise
and the material has been properly considered by both the
Courts.
16. Having heard the petitioner's counsel and also
the counsel appearing for the respondents No.1 and 2 and
having considered the plaint averments, the measurement
shown in the plaint in paragraph No.1 of page No.2 totally
measures 22 sqft east-west and north-south 67 sq.ft and
there is no dispute with regard to the total measurement
i.e. 137.960955 sq.meters. Having taken note of
Annexure-L produced by the petitioner before this Court
i.e. Form No.3, the same discloses that the very total
construction of plinth area is also 137.960955 sq.meters
and the measurement of site is also 137.960955
sq.meters. The same is taken note of by the First
Appellate Court while considering the miscellaneous appeal
and the First Appellate Court comes to the conclusion that
total extent of site area is also constructed to the entire
137.960955 sq.meters. Apart from that, the First
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Appellate Court also taken note of the earlier proceedings
in O.S.No.241/2008 between the defendants No.3 and 4
who are the relatives of the plaintiff, wherein the
defendants No.3 and 4 have made claim of the
encroachment to the extent of 3x67 square feet showing
the same area as 'EFCD'.
17. The Trial Court having considered the material
and record comes to the conclusion that there was no such
any encroachment made by the defendants No.1 and 2
and dismissed the suit and the same is confirmed in
R.A.No.36/2009 and the hence the same is nothing but a
second round of litigation by the plaintiff making the very
same claim and seeking an order of temporary injunction
restraining the defendants No.1 and 2 not to put up any
construction contending that there is an encroachment.
18. When the First Appellate Court having
reassessed the material available on record, i.e. the area
which has been mentioned in the plaint and considering
the description mentioned in the plaint as well as Form
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No.3, taken note of the entire construction made by the
plaintiff to the extent of 137.960955 square meters, I.A.
filed by the defendants No.1 and 2 before the Trial Court
seeking an order to measurement of the area was allowed.
19. When such being the case and when the
application was filed under Order XXXIX Rules 1 and 2 of
CPC by the plaintiff and defendants No.1 and 2 have also
filed filed an application under Order XXXIX Rule 7 of CPC,
the Trial Court ought not to have entertained the
application filed under Order XXXIX Rules 1 and 2 of CPC
granting the relief of the temporary injunction and ought
to have waited even for the measurement and the same
has not been done.
20. The First Appellate Court considering the fact
that when the plaintiff prima facie has not made out any
case with regard to the encroachment is concerned and
having considered Form No.3, held that the when entire
extent has been constructed, it is nothing but a second
round of litigation at the instance of the plaintiff and
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though defendants No.3 and 4 have also earlier made a
similar claim against the defendants No.1 and 2, the same
has been appreciated by the First Appellate Court and Trial
Court committed an error in making an observation in
paragraph No.16 with regard to the encroachment is
concerned and unless prima facie material is placed before
the Court that there was an attempt to make the
encroachment, the Trial Court ought not to have granted
the relief of temporary injunction, which has been rightly
reversed by the First Appellate Court.
21. Having considered the material on record, I do
not find any error committed by the First Appellate Court
in reversing the finding of the Trial Court and hence there
is no merit in reversing the findings of the First Appellate
Court when the First Appellate Court has in detail
discussed the material and record.
22. Having considered the pleadings of the plaint
with regard to the description of the property and Form
No.3, they clearly disclose that the entire extent of
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building has been constructed and apart from that an
earlier attempt in the earlier suit was also made by
defendants No.3 and 4 stating that the defendants No.1
and 2 have attempted to encroach the property of the
plaintiff.
23. When such being the case and when the
defendants themselves have approached the Court by
filing an application under Order XXXIX Rule 7 of CPC for
an order of measurement, unless the said report is placed
before the Court, the Trial Court ought not to have
entertained the application filed under Order XXXIX Rules
1 and 2 of CPC and hence I do not find any merit in the
writ petition to reverse the findings of the First Appellate
court and hence the writ petition is liable to be dismissed.
24. In view of the discussions made above, the
following order is passed:
ORDER
The writ petition is dismissed.
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Having considered the suit is of the year 2022, the
Trial Court is directed to dispose of the suit on merits
within one year from today.
I.A.No.1/2024 filed under Order XLI Rule 27 of CPC
seeking to produce additional documents by the petitioner
does not survive for consideration since the report is filed
subsequent to passing of the order under Order XXXIX
Rules 1 and 2 of CPC.
Sd/-
(H.P.SANDESH)
JUDGE
SH
CT-MCK
