Karnataka High Court
Sri Basavaraj And Ors vs Sri Yallappa And Ors on 25 June, 2024
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WP No. 204671 of 2019
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE R.NATARAJ
WRIT PETITION NO.204671 OF 2019 (GM-CPC)
BETWEEN:
1. SRI BASAVARAJ
S/O HANUMAYYA NILHALLI,
AGE: 63 YEARS, OCC: AGRICULTURIST,
2. SRI MALLIKARJUN
S/O HANUMAYYA NILHALLI,
AGE: 63 YEARS, OCC: AGRICULTURIST,
3. SRI ANJANEAYA
S/O HANUMAYYA NILHALLI,
AGE: 63 YEARS, OCC: AGRICULTURIST,
4. SRI SUDARSHAN
S/O HANUMAYYA NILHALLI,
Digitally signed
by RENUKA AGE: 63 YEARS, OCC: AGRICULTURIST,
Location: High
Court Of 5. SRI NILKANTH
Karnataka S/O HANUMAYYA NILHALLI,
AGE: 63 YEARS, OCC: AGRICULTURIST,
PETITIONERS NO.1 TO 5 ARE ALL
R/O WADIGERA VILLAGE,
TQ: SHAHPUR, DIST: YADGIRI.
...PETITIONERS
(BY SRI. V. K. NAYAK, ADVOCATE)
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WP No. 204671 of 2019
AND:
1. SRI YALLAPPA S/O HANMANTH,
AGED ABOUT 53 YEARS,
OCC: AGRICULTURIST,
R/O WADGERA, VILLAGE,
TQ: SHAHAPUR, DIST: YADGIRI.
2. DEPUTY COMMISSIONER, YADGIR,
DISTRICT YADGIR.
3. SPECIAL TAHASILDAR, WADAGERA,
TQ: SHAHPUR, DIST: YADGIRI.
4. SRI BHIMANNA
SINCE DEAD BY HIS LRS.,
a) SMT. SABAMMA W/O LATE BHIMANNA,
AGE: MAJOR, OCC: HOUSE WIFE,
b) KASHAMMA D/O LATE BHIMANNA,
AGE: MAJOR, OCC: HOUSE-HOLD,
c) SRI DEVAPPA S/O LATE BHIMANNA,
AGE: MAJOR, OCC: AGRICULTURIST,
d) SRI HANMANATHA
S/O LATE BHIMANNA,
AGE: MAJOR, OCC: AGRICULTURIST,
e) SRI SABAYYA S/O LATE BHIMANNA,
AGE: MAJOR, OCC: AGRICULTURIST,
RESPONDENTS NO.4(A) TO (E)
ALL ARE RESIDENT OF WADGERA VILLAGE,
TQ: SHAHPUR, DIST: YADGIRI.
...RESPONDENTS
(SRI. M. SALOMON ALFRED, ADVOCATE FOR
R1, R4(A) TO (D);
SMT. AARTI PATIL, HCGP FOR R2 AND R3)
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WP No. 204671 of 2019
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE
ORDER DATED 16.04.2019 PASSED BY THE HON'BLE DISTRICT
JUDGE, YADGIRI ON I.A. NO.1 IN R.A.NO.58/2018 AND
ALLOW THE I.A. NO.1 FILED UNDER ORDER 41 RULE 5 OF
C.P.C. BY STAYING THE JUDGMENT AND DECREE IN
O.S.NO.47/2017 PASSED BY SENIOR CIVIL JUDGE, YADGIRI.
ARISING OUT OF COMMON JUDGMENTS AND DECREES IN
O.S.NO.47/2017 AND O.S.NO.48/2017 PASSED BY SENIOR
CIVIL JUDGE AND JMFC-I OF SHAHPUR DATED 04.10.2018
FOUND AT ANNEXURE-G.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners have challenged an order dated
16.04.2019 passed by the District Judge at Yadgiri in
R.A.No.58/2018, by which an application filed by the
petitioners under Order XLI Rule 5 of CPC was rejected.
2. Respondent No.1 herein filed O.S.No.47/2017
for declaration of title and for consequential relief of
injunction in respect of the lands bearing Sy.No.212/4 and
212/5 of Wadgera village, Shahapur Taluk, Yadgir District.
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The suit after contest was decreed in terms of judgment
and decree dated 04.10.2018. The petitioners challenged
the said judgment and decree in R.A.No.58/2018. Along
with the appeal, an application under Order XLI Rule 5 of
CPC was filed for stay of the judgment and decree passed
in O.S.No.47/2017. The said application was rejected in
terms of the impugned order. Being aggrieved by the said
order, the petitioner is before this Court.
3. The learned counsel for the petitioners submits
that the petitioners were entitled to challenge the
judgment and decree of the Trial Court and the First
Appellate Court being the last Court of fact, was bound to
re-appreciate the evidence and scrutinize whether the
judgment and decree was in line with the evidence on
record. He submits that until such an exercise is done, the
First Appellate Court must have protected the possession
of the petitioners.
4. Per contra, the learned counsel for respondent
Nos.1 and 4(a) to 4(d) submits that a suit in
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O.S.No.113/1987 was filed by respondent No.1 against the
father of the petitioners for perpetual injunction in respect
of the very same land and that the suit after contest was
decreed and the father of the petitioners was restrained
from interfering with the possession of respondent No.1.
He contends that the suit in O.S. No.47/2017 was also
decreed and respondent No.1 was declared to be the
owner of the property in question. Thus, he contends that
the Courts had accepted that respondent Nos.1 and 4(a)
to 4(d) were the owner in possession of the suit property
and thus, the said decree could not have been stayed.
5. In reply, the learned counsel for the petitioners
relied upon a revenue proceedings initiated by the
Tahsildar, which resulted in an order dated 20.01.2018, to
contend that respondent No.1 himself had submitted a
representation stating that the land in Sy.No.212 of
Wadgera village, Shahpur Taluk was in the unauthorized
cultivation of some persons and that the revenue records
stood in the name of the State Government. He submitted
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that respondent No.1 had requested the Tahsildar to
auction the crop that may be raised by such unauthorized
cultivators. He submitted that the Tahsildar had passed
an order dated 20.01.2018 to harvest the crop and put up
it for sale. He therefore submits that respondent No.1
himself has represented that the land belongs to the State
Government in a proceeding before the Tahsildar, but
contrarily claimed in O.S.No.47/2017 that the land
belonged to him. He therefore contends that this was an
essential document that had to be considered while
considering the application filed by the petitioners under
Order XLI Rule 5 of CPC.
6. I have considered the submissions made by the
learned counsel for the petitioners and the learned counsel
for respondent Nos.1 and 4(a) to 4(d).
7. It is not in dispute that respondent No.1 had
filed O.S.No.113/1987 for perpetual injunction against the
father of the petitioners in respect of the very same land
and the said suit was decreed after contest. Now,
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respondent No.1 had sought for declaration of his title and
for consequential reliefs in respect of the very same land
in O.S.No.47/2017 and the said suit was also decreed.
There is no material to establish that the petitioners were
in possession of the property so as to prima facie come to
a conclusion that the possession of the petitioners had to
be protected. The petitioners did not produce the
document namely, the order passed by the Tahsildar dated
20.01.2018 either before the Trial Court or before the First
Appellate Court, but have now placed on record the order
passed by the Tahsildar dated 20.01.2018. Therefore, no
exception can be laid to the order passed by the First
Appellate Court in rejecting the application filed by the
petitioners. However, since the petitioners are trying to
rely upon fresh evidence to dispute the title of respondent
No.1 to the property in question, it is open for the
petitioners to file an appropriate application before the
First Appellate Court and it is for the First Appellate Court
to consider the said application in accordance with law.
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The writ petition stands dismissed subject to the
observations made hereinabove.
Sd/-
JUDGE
LG
