Karnataka High Court
Sri Basappa Mallappa Hullikeri ... vs Sri Bhimappa Honnappa Vaggar on 5 November, 2024
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MFA No. 102046 of 2022
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 5TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE C.M. POONACHA
MISCELLANEOUS FIRST APPEAL NO.102046 OF 2022 (CPC)
BETWEEN:
SRI BASAPPA MALLAPPA HULLIKERI
SINCE DECEASED BY HIS LRS
1. SMT. BASAVVA W/O. BASAPPA HULIKERI,
AGE: 65 YEARS, OCC: AGRIL AND HOUSEHOLD,
R/O: LINGADAL, TQ: RAMADURG,
DIST: BELAGAVI, PIN CODE - 591 123.
2. SMT. MALLAVVA W/O. SIDDAPPA AMARAGOL,
AGE: 45 YEARS, OCC: AGRIL AND HOUSEHOLD,
R/O: LAKA-NAIK KOPPA, TQ: RAMADURG,
DIST: BELAGAVI, PIN CODE - 591 123.
3. SMT. SIDDAAVVA W/O. PUNDALIK GIRENNAVAR,
AGE: 35 YEARS, OCC: AGRIL AND HOUSEHOLD,
R/O: M-KHANAPUR, TQ: RAMADURG,
DIST: BELAGAVI, PIN CODE - 591 123.
Digitally signed
4. SMT. MAHADEVI W/O. RAMANNA KURI,
by SAROJA
HANGARAKI
AGE: 32 YEARS,
Location: High OCC: AGRIL AND HOUSEHOLD,
Court of
Karnataka R/O: KENDUR, TQ: RAMADURG,
DIST: BELAGAVI, PIN CODE - 591 123.
5. SRI MUTTEPPA S/O. BASAPPA HULIKERI,
AGE: 29 YEARS, OCC: AGRIL,
R/O: LINGADAL, TQ: RAMADURG,
DIST: BELAGAVI, PIN CODE - 591 123.
6. SMT. BAILAPPA S/O. BASAPPA HULIKERI,
AGE: 27 YEARS, OCC: AGRIL,
R/O: LINGADAL, TQ: RAMADURG,
DIST: BELAGAVI, PIN CODE - 591 123.
7. SMT. MAHADEV S/O. BASAPPA HULIKERI,
AGE: 25 YEARS, OCC: AGRIL,
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MFA No. 102046 of 2022
R/O: LINGADAL, TQ: RAMADURG,
DIST: BELAGAVI, PIN CODE - 591 123.
8. SRI SIDDALINGAPPA S/O. BASAPPA HULIKERI,
AGE: 22 YEARS, OCC: AGRIL,
R/O: LINGADAL, TQ: RAMADURG,
DIST: BELAGAVI, PIN CODE - 591 123.
9. SRI. DYAVAPPA MALLAPPA HULLIKERI,
AGE: 59, OCC: AGRIL,
R/O: LINGADAL, TQ: RAMADURG,
DIST: BELAGAVI, PINCODE: 591 123.
10. SRI MARUTI MAGUNDAPPA HULLIKERI,
AGE: 30, OCC: AGRIL,
R/O: LINGADAL, TQ: RAMADURG.
DIST: BELAGAVI, PINCODE: 591 123.
11. SRI. BASAVARAJ MAGUNDAPPA HULLIKERI,
AGE: 30, OCC: AGRIL,
R/O: LINGADAL, TQ: RAMADURG.
DIST: BELAGAVI, PINCODE: 591 123.
12. SMT. NEELAVVA W/O. SHIVAPPA HULLIKERI,
AGE: 32, OCC: AGRIL & HHW,
R/O: LINGADAL, TQ: RAMADURG.
DIST: BELAGAVI, PINCODE: 591 123.
13. SMT. SAVITA W/O. MAHADEVAPPA HAKKYAGOL,
AGE: 22, OCC: AGRIL & HHW,
R/O: LINGADAL, TQ: RAMADURG,
DIST: BELAGAVI, PINCODE: 591 123.
14. KUMARI. GANGAVVA D/O SHIVAPPA HULLIKERI,
AGE: 21 OCC: AGRIL & HHW,
R/O: LINGADAL, TQ: RAMADURG.
DIST: BELAGAVI, PINCODE: 591 123.
15. KUMARI ANNAPURNA D/O. SHIVAPPA HULLIKERI,
AGE: 19, OCC: STUDENT,
R/O: LINGADAL, TQ: RAMADURG,
DIST: BELAGAVI, PINCODE: 591 123.
...APPELLANTS
(BY SRI S.B.MALLIGWAD, ADVOCATE FOR
SRI SHRIDHAR HIREMATH, ADVOCATE)
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MFA No. 102046 of 2022
AND:
1. SRI BHIMAPPA HONNAPPA VAGGAR,
AGE: 51 YEARS, OCC: AGRIL.,
R/O: LINGADAL, TQ: RAMADURG,
DIST: BELAGAVI, PIN CODE - 591 123.
2. SRI. PADIYAPPA HONNAPPA VAGGAR,
AGE: 46, OCC: AGRIL,
R/O: LINGADAL, TQ: RAMADURG.
DIST: BELAGAVI, PIN CODE - 591 123.
3. SRI MARUTI HONNAPPA VAGGAR,
AGE: 36, OCC: AGRIL,
R/O: LINGADAL, TQ: RAMADURG,
DIST: BELAGAVI, PIN CODE - 591 123.
4. SRI. PADIYAPPA SHIVAPPA VAGGAR,
AGE: 41, OCC: AGRIL,
R/O: LINGADAL, TQ: RAMADURG.
DIST: BELAGAVI, PIN CODE - 591 123.
5. SRI. RAMESH SHIVAPPA VAGGAR,
AGE: 36, OCC: AGRIL,
R/O: LINGADAL, TQ: RAMADURG.
DIST: BELAGAVI, PIN CODE - 591 123.
6. SRI. YAMANAPPA SHIVAPPA VAGGAR,
AGE: 23, OCC: AGRIL,
R/O: LINGADAL, TQ: RAMADURG.
DIST: BELAGAVI, PIN CODE - 591 123.
...RESPONDENTS
(BY SRI MALLIKARJUNSWAMY B. HIREMATH,
ADVOCATE FOR R1 TO R6)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/O. 43 RULE
1(R) READ WITH 151 OF THE CODE OF CIVIL PROCEDURE, PRAYING
TO, SET ASIDE THE ORDER PASSED ON I.A. NO. 1 DATED
19.02.2022 PASSED BY THE LEARNED SENIOR CIVIL JUDGE
RAMDURG, IN O.S NO. 15/2016 VIDE ANNEXURE-A. ALLOW THE I.A.
NO. 1 FILED BY THE PLAINTIFFS IN O.S. NO. 15/2016 DATED
19.02.2022 PENDING ON THE FILE OF SENIOR CIVIL JUDGE
RAMDURG VIDE ANNEXURE-A AND ETC.,
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
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MFA No. 102046 of 2022
CORAM: THE HON'BLE MR. JUSTICE C.M. POONACHA
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA)
The present appeal is filed under Order XLIII Rule 1(r)
R/w Section 151 of the Code of Civil Procedure, 19081 by the
plaintiffs challenging the order dated 19.02.2022 passed in
O.S.No.15/2016 by the Senior Civil Judge, Ramdurg2,
whereunder the Trial Court has dismissed I.A.No.1 filed by the
plaintiffs under Order XXXIX Rules 1 and 2 R/w Section 151 of
CPC and allowed I.A.No.2 filed by the defendants under Order
XXXIX Rule 4 of CPC and vacated the ex-parte temporary
injunction dated 15.03.2016.
2. The relevant facts in nutshell leading to the
present appeal are that the plaintiffs instituted
O.S.No.115/2015 for injunction. During the pendency of the
said suit, the plaintiffs instituted O.S.No.15/2016 for
declaration that the plaintiffs are the absolute and exclusive
owners of the suit property and for a consequential relief of
permanent injunction. Along with O.S.No.15/2016, the plaintiffs
Hereinafter referred to as 'CPC'
Hereinafter referred to as 'the Trial Court'
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also filed I.A.No.1 for grant of ad-interim injunction to restrain
the defendants or their agents from interfering and obstructing
with the plaintiffs' peaceful possession and enjoyment of the
suit property. The Trial Court by ad-interim order dated
15.03.2016 granted ex-parte injunction as sought for in
I.A.No.1. The defendants entered appearance in the suit and
contested the same by filing written statement. The defendants
also filed I.A.No.2 under Order XXXIX Rule 4 of CPC to vacate
the ex-parte order of temporary injunction. The Trial Court vide
its order dated 19.02.2022 dismissed I.A.No.1 and allowed
I.A.No.2. Being aggrieved, the present appeal is filed by the
plaintiffs.
3. I.A.No.1/2022 is filed in the present appeal
under Order XXXIX Rule 1 and 2 of CPC for granting ex-parte
order of injunction to restrain the respondents from interfering
with the appellants'/plaintiffs' peaceful possession and
enjoyment of the suit property. This Court vide order dated
06.07.2022 upon a detail consideration of the relevant facts,
granted an ad-interim order of temporary injunction in favour
of the appellants/plaintiffs as sought for in the application.
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4. Heard the submissions of the learned counsel
Sri. Santosh B Malligwad for learned counsel Sri. Shridhar
Hiremath, appearing for the appellants/plaintiffs and the
learned counsel Sri.Mallikarjunswamy B Hiremath, appearing
for the respondents/defendants.
5. The learned counsel for the appellants
assailing the order passed by the Trial Court contends that the
earlier suit in O.S.No.115/2015 filed by the appellants was for
bare injunction and subsequently, the appellants have filed
O.S.No.15/2016. That, the appellants/plaintiffs filed a memo in
O.S.No.115/2015 and vide order dated 29.11.2016, the Trial
Court on a detailed consideration, has allowed the memo and
dismissed the suit as not pressed. He further contends that, in
the plaint in subsequent suit, the plaintiffs have averred
regarding the filing of the earlier suit as well as the order
passed by the Trial Court on interim application filed in earlier
suit. Hence, he contends that the observation of the Trial Court
that the approach of the plaintiffs is unwarranted and they have
not approached the Court with clean hands is erroneous and
liable to be interfered with by this Court. It is further contended
that the Trial Court having recorded a finding that the
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documents produced by the plaintiffs show that the suit
property belongs to the plaintiffs and having appreciated the
relevant factual matrix and having noticed that the suit
property in both the suits are same, out not to have dismissed
I.A.No.1 and vacated the ad-interim injunction granted in
favour of the plaintiffs. Hence, he seeks for allowing the above
appeal and for granting of the relief as sought for.
6. Per contra, the learned counsel for the
respondents, justifying the order passed by the Trial Court,
contends that the Trial Court in the earlier suit while rejecting
the application for injunction vide order dated 20.11.2015 has
recorded a finding that the plaintiffs have not made out a prima
facie case. He further contends that the plaintiffs have
suppressed the said finding recorded by the Trial Court in the
earlier suit and the Trial Court was justified in dismissing
I.A.No.1 and allowing I.A.No.2. He further contends that the
Trial Court has adequately appreciated the factual matrix and
exercised its discretion in rejecting the injunction sought for,
which ought not to be interfered with by this Court in the
present appeal. Hence, he seeks for dismissal of the above
appeal.
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7. The submissions of both the learned counsels
have been considered and material on record has been
perused. The question that arises for consideration is as to
"whether the order dated 19.02.2022 passed by the Trial Court
is liable to be interfered with"?
8. It is matter on record that the earlier suit in
O.S.No.115/2015 filed by the plaintiffs was for bare injunction.
I.A.No.1 filed by the plaintiffs in O.S.No.115/2015 was rejected
by the Trial Court vide order dated 20.11.2015. It is further
relevant to note that the subsequent suit in O.S.No.15/2016
was filed for larger relief of declaration as also consequential
relief of permanent injunction.
9. It is forthcoming from paragraph 3 of the
plaint in subsequent suit that the plaintiffs have averred
regarding the filing of O.S.No.115/2015 as also the dismissal of
I.A.No.1 in the said suit. It is also relevant to note that at
paragraph 4 of the plaint, the plaintiffs have stated that
subsequent to dismissal of I.A.No.1 in O.S.No.115/2015, the
defendants have again attempted to enter upon the suit
property and obstruct the plaintiffs' possession. It is further
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relevant to note that subsequent to filing of O.S.No.15/2016,
the plaintiffs have filed a memo in O.S.No.115/2015 and the
Trial Court by a detail order dated 29.11.2016 held that the
plaintiffs have not suppressed any facts in the subsequent suit
and that the subsequent suit is a comprehensive one. Hence,
the Trial Court allowed the said memo and dismissed the suit
as not pressed.
10. It is further relevant to note that the
defendants, in the written statement filed in earlier suit, are
claiming title by way of adverse possession since they having
been in possession since 14.06.1976. The Trial Court while
considering the claim of title, as set out by the plaintiffs, has
recorded the following findings.
"12.The hand written RTC of the suit
property for 1964-65 and M.E.No.632 dated
20.06.1966 show that the suit property earlier
belonged to one Hanamappa Gadigeppa Adavi.
He sold it to one Basappa Ramappa Vaggar
through a sale deed on 29.10.1965 as found
from the said certified copy of the said sale deed
and M.E.No.777 dated 26.08.1970. Then the
said Basappa Ramappa Vaggar sold it to the
plaintiff No.1 as found from the certified copy of
the sale deed dated 28.07.1970. Now the
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revenue records of it are in the names of the
plaintiffs. There is no dispute from the side of
the defendants to the above facts.
13. The main dispute from the side of the
defendants is that the sale deed dated
28.07.1970 does not contain the boundaries of
the suit property and therefore, the boundaries
of the suit property furnished in the plaint are
incorrect. The perusal of the said sale deed
clears the fact that the boundaries of the suit
property are not mentioned. But the village map
of Hiremulangi village produced by the plaintiffs
show that the property bearing Sy.No.26 is
bounded. by road towards east, the property
bearing Sy.No.13 towards west, the property
bearing Sy.No.27 towards south and the
property bearing Sy.No.25 towards north. The
east, west and south boundaries found in the
village map are also found in the schedule of the
plaint. The survey sketch produced by the
plaintiff shows the boundaries of road towards
east, Sy.No.13 towards west, Sy.Nos.26/5 and
26/6 towards north and Sy.No.27 towards south
of the suit property. Another survey sketch
shows the suit Sy.No.26 as eastern boundary of
Sy.No.13/4. The hand sketch of suit property
furnished by the Village Accountant of
Hiremulangi village also shows the same
boundaries as furnished in the schedule of the
plaint. The similar hand sketches of Sy.Nos.26/6
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and 27/1 show the property of the plaintiff No.1
as southern boundary of the said properties.
14. The above documents clear the fact
that the boundaries of the suit property
mentioned therein are prima-faciely similar to
the boundaries of the suit property furnished in
the plaint. Having considered the contention of
the defendants that the boundaries of the suit
property mentioned herein are different from the
boundaries of the property in O.S.No.115/2015,
it is to be noted that east, west and south
boundaries of suit property of both suit are
similar. There is only variation in northern
boundary. In the said suit, northern boundary is
shown as the land of one Siddappa Shingadi and
in the present suit, northern boundary is shown
as the lands bearing Sy.No.26/5 and 26/6
belonging to Sri. Gangappa Nagappa Ghatage
and Siddappa Sannappa Sanni and others
respectively. The plaintiffs are to explain as to
why such variation is found in northern boundary
of the suit property of both suits. It is a matter
of trial.
15. But so far as the suit property of the
present suit is concerned, the boundaries of the
suit property mentioned in the schedule of the
plaint have base from the above documents
though the sale deed does disclose the
boundaries. Hence, the contention of learned
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counsel for the defendants that the boundaries
of the suit property are incorrect cannot be
accepted at this stage."
(Emphasis supplied)
11. Hence, as noticed above, it is clear from the
findings of the Trial Court that the boundaries as mentioned in
the suit are similar and there is only variation in the northern
boundary. The Trial Court has recorded a finding that the
plaintiffs are the owners of the suit property while the Trial
Court has considered the contention of the defendants that
they are claiming title by way of adverse possession.
12. The Trial Court, while noticing that earlier a
suit was filed by the plaintiffs, has erroneously recorded a
finding that the plaintiffs did not challenge the order dated
20.11.2015 dismissing the I.A.No.1 filed in the said suit.
Further, the Trial Court has erred in recording a finding that
only to overcome the order dated 20.11.2015 wherein I.A.No.1
in O.S.No.115/2015 was rejected, the subsequent suit has
been filed, and that the plaintiffs have not approached the
Court with clean hands. The said finding of the Trial Court is
erroneous and is liable to be interfered with having regard to
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the admitted position that the earlier suit in O.S.No.115/2015
was for bare injunction and subsequent suit in O.S.No.15/2016
was a comprehensive one for declaration and consequential
relief of injunction. Further, as noticed above, the plaintiffs
have pleaded regarding the earlier suit as well as the dismissal
of I.A.No.1 in the said suit at paragraph 3 of the plaint. Further,
the plaintiffs have specifically averred regarding the subsequent
cause of action.
13. It is relevant to note that the Trial Court vide
its order dated 15.03.2016 had granted
ex- parte order of temporary injunction and the said order was
in subsistence till the impugned order dated 19.02.2022 was
passed. Thereafter, this Court vide order dated 06.07.2022 has
granted an ad-interim temporary injunction in the present
appeal, which is continued till date.
14. The plaintiffs having adequately demonstrated
their title to the suit property and possession of the same, it
was for the defendants, who have pleaded regarding adverse
possession who have not placed any material on record, to
demonstrate that the plaintiffs are not in possession of the
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same. The pleading of the defendant itself tantamounts to
interference of the plaintiffs' possession and enjoyment of the
suit property, which is required to be protected by this Court.
15. The plaintiffs have demonstrated a prima
facie case, as also that the balance of convenience lies in their
favour. The plaintiffs will be put to hardship if the injunction is
not granted in their favour.
16. The exercise of discretion by the Trial Court in
refusing the injunction is erroneous and liable to be interfered
with. The Trial Court has not properly appreciated the factual
matrix while considering the applications.
17. In view of the aforementioned, it is just to
pass the following:
ORDER
i. The above appeal is allowed.
ii. The order dated 19.02.2022 passed in
O.S.No.15/2016 by the Senior Civil Judge and
JMFC, Ramdurga is set-aside.
iii. I.A.No.1 filed by the plaintiffs under Order
XXXIX Rule 1 and 2 read with Section 151 of
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CPC in O.S.No.15/2016 is allowed. I.A.No.2
filed by the defendants under Order XXXIX
Rule 4 of CPC in O.S.No.15/2016 is rejected.
iv. The ex-parte order of temporary injunction
dated 15.03.2016 granted by the Trial Court in
O.S.No.15/2016 is confirmed and the same
shall be continued till disposal of the suit.
v. The findings recorded herein are only for the
purpose of the present appeal and the Trial
Court shall adjudicate the suit uninfluenced by
any of the observations made herein.
Sd/-
(C.M. POONACHA)
JUDGE
SSP, YAN
CT-ASC
