Karnataka High Court
Ranga Shetty vs Ranga Swamy on 16 October, 2024
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NC: 2024:KHC:41770
WP No. 13360 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
WRIT PETITION NO. 13360 OF 2024 (GM-CPC)
BETWEEN:
1. RANGA SHETTY,
S/O VENKATA SHETTY,
AGED ABOUT 67 YEARS,
R/AT KALLAHALALI VILLAGE,
KATTAYA HOBLI,
HASSAN TALUK - 573128.
...PETITIONER
(BY SRI RAMESH K, ADVOCATE)
AND:
1. RANGA SWAMY,
S/O PUTTASWAMY GOWDA,
AGED ABOUT 48 YEARS,
R/AT KALLAHALALI VILLAGE,
KATTAYA HOBLI,
Digitally HASSAN TALUK - 573128.
signed by C ...RESPONDENT
HONNUR SAB
(BY SRI VENUGOPAL M S, ADVOCATE)
Location:
HIGH COURT THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
OF THE CONSTITUTION OF INDIA PRAYING TO CALLING FOR
KARNATAKA
RECORDS IN OS NO.252/2022 PENDING ON THE FILE OF
ADDL. SENIOR CIVIL JUDGE, HASSAN, PERUSE THE SAME AND
SET-ASIDE/QUASH THE ORDER DTD 05.08.2023 PASSED
THEREIN VIDE ANNEXURE-E DISMISSING THE IA NO. II FILED
UNDER ORDER XXXIX RULES 1 AND 2 FOR TEMPORARY
INJUNCTION AND ALSO CALL FOR RECORDS IN MA NO.
28/2023 ON THE FILE OF THE III ADDL. DISTRICT AND
SESSIONS JUDGE, HASSAN, PERUSE THE ORDER DTD
16.02.2024 PASSED THEREIN VIDE ANNEXURE-F AND SET-
ASIDE/QUASH THE SAME ALLOWING THE WP AND IN EFFECT
ALLOW IA NO. II VIDE ANNEXURE-C FILED SEEKING THE
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NC: 2024:KHC:41770
WP No. 13360 of 2024
TEMPORARY INJUNCTION AS PRAYED FOR THEREIN PENDING
DISPOSAL OF THE SUIT IN OS 252/2022 ON THE FILE OF THE
ADDL. SENIOR CIVIL JUDGE, HASSAN.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP THIS DAY, ORDER WAS MADE THEREIN AS
UNDER:
CORAM: HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
ORAL ORDER
Heard the learned counsel appearing for the
petitioner and the learned counsel appearing for the
respondent.
2. The plaintiff filed a suit for declaration of title and
injunction in respect of property bearing Sy.No.121/2
measuring 27 guntas. He has provided the boundaries for
the said property. The plaintiff's claim is that he has
purchased the property under registered sale deed dated
20.04.1995 and he is in possession since then from the
grandfather of the defendant and defendant is also one of
the consenting witnesses to the said sale deed. The suit is
filed on the premise that the defendant is interfering in his
possession.
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3. The defendant appeared and contested the
suit. The defendant states that the plaintiff has purchased
Sy.No.144/1 and not Sy.No.121/2. The sale deed would
also reveal that the plaintiff has purchased Sy.No.144/1
but not Sy.No.121/2.
4. The application seeking temporary injunction
filed by the plaintiff is dismissed. The appeal filed by the
plaintiff is also dismissed and hence, the plaintiff is before
this Court in this writ petition.
5. Learned counsel appearing for the petitioner
would submit that there is no property bearing
Sy.No.144/1 at any point of time and what was purchased
is only Sy.No.121/2 and same has been wrongly
mentioned in the sale deed as Sy.No.144/1 and the
boundaries mentioned in the sale deed which are the
boundaries mentioned in the plaint are the boundaries
pertaining to Sy.No.121/2 and not Sy.No.144/1. He would
contend that taking undue advantage of the typographical
error in mentioning the survey number, the defendant is
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interfering with the possession. Since, there is no property
bearing Sy.No.144/1, which claim is not disputed in the
written statement, the Trial Court and the First Appellate
Court erred in rejecting the prayer for injunction.
6. Learned counsel for the respondents on the
other hand would contend that there exists Sy.No.144/1
for which a record of right is also maintained and the
plaintiff has mortgaged the said property and borrowed
loan and has repaid loan and this itself would suggest that
he has purchased the property bearing Sy.No.144/1 and is
in possession of Sy.No.144/1 and both the Courts have
rightly dismissed the application seeking temporary
injunction. It is also urged that the plaintiff's claim that Sy.
No.144/1 does not exist is disputed by the defendant.
7. This Court has perused the records and the
impugned order.
8. Both the Courts have noticed that suit
Sy.No.121/2 is not the survey number mentioned in the
sale deed dated 20.04.1995. The RTC of Sy.No.121/2
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does not stand in the name of the plaintiff but it stands in
the name of the defendant. Prima facie, both the Courts
have come to the conclusion that no case is made out for
grant of temporary injunction. Though, the learned
counsel for the plaintiff would urge that the statement that
Sy.No.144/1 is not in existence is not denied by the
defendant in the written statement, learned counsel for
the defendant submits that said statement is denied in
written statement.
9. Prima facie, record of right pertaining to
Sy.No.144/1 is in existence. That prima facie indicates
that there is a property bearing Sy.No.144/1 for which the
sale deed is executed. Whether the sale deed for
Sy.No.144/1 really exists or not, is a matter to be
adjudicated during the course of trial. For this reason, the
Survey Commissioner is required to be appointed to
ascertain whether Sy.No.144/1 is in existence or not.
10. Hence, this Court though does not find any
reason to interfere with the orders passed by the Trial
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Court or the First Appellate Court in exercise of the writ
jurisdiction. Nevertheless a direction as under needs to be
issued to resolve the controversy.
11. Hence, the following:
ORDER
(i) The writ petition is disposed of.
(ii) There are no reasons to interfere with the
impugned orders.
(iii) However, the Trial Court shall appoint a
Court Commissioner to measure the
property bearing Sy.No.121/2 as well as
Sy.No.144/1 in Kallahalli Village, Kattaya
Hobli, Hassan Taluk.
(iv) The Commissioner shall also furnish report
whether both the properties exist or not?
(v) If both the properties exist the
Commissioner shall furnish the
boundaries of Sy.No.121/2 as well as
Sy.No.144/1.
(vi) If Sy. No.144/1 does not exist, then the
Commissioner shall also state whether
the boundaries mentioned in the sale deed
in the name of the plaintiff tally with the
(vii) The said report shall be considered in
accordance with law and thereafter, the
Trial Court shall pass appropriate
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judgment based on the evidence available
on record.
(viii) While appointing the Court commissioner,
as far as possible the guidelines stated in
the case of Sri Shadaksharappa v/s
Kumari Vijayalakshmi (ILR 2023 Kar.
page 3983) shall be followed.
(ix) It is made clear that this Court has not
expressed any opinion on the merits of
the claim of either of the parties.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
BRN
