Karnataka High Court
Shri Hemant vs Shri Laxman on 23 June, 2017
Author: A.S.Bopanna
Bench: A.S.Bopanna
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 23RD DAY OF JUNE, 2017
BEFORE
THE HON'BLE MR.JUSTICE A.S.BOPANNA
WRIT PETITION No.29922/2016 (GM-CPC)
BETWEEN:
1. SHRI HEMANT
S/O GOPAL HAWAL
AGE 44 YEARS, OCC: BUILDER AND DEVELOPER
H.NO.3161, S.M. CHOWK, KHADE BAZAR,
BELAGAVI-590001
2. SHRI SATISH
S/O SURESH SAKHARE
AGE: 41 YEARS, OCC: BUILDER AND DEVELOPER
R/O CORPORATION OF CITY,
BELAGAVI NO.3
MARKANDEYA NAGAR, BELAGAVI-590010
... PETITIONERS
(BY SRI. SANJAY S KATAGERI, ADV.)
AND:
1. SHRI LAXMAN
S/O KRISHNA KAKATKA
AGE 53 YEARS, OCC-TAXI BUSINESS
PRESENT & CORRECT ADDRESS
RESIDING AT H.NO.372,
KANGLE GALLI, BEHIND RAJAMAHAL BAR
BELAGAVI-590002
2. SHRI PRAMOD
S/O KRISHNA KAKATKAR
2
AGE 42 YEARS, OCC-TAXI BUSINESS
PRESENT & CORRECT ADDRESS
RESIDING AT H.NO.372,
KANGLE GALLI, BEHIND RAJAMAHAL BAR
BELAGAVI-590002
3. SHRI SHASIKANT
S/O GANGARAM CHOUGULE
AGE 41 YEARS, OCC BUILDER-DEVELOPER
RESIDENT OF NO.31,
JANGANA LAXMI ROAD,
BHARAT NAGAR,
M VADAGAON, BELAGAVI-590004
... RESPONDENTS
(RESPONDENTS-SERVED)
THIS PETITION IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH ANNX-A THE
JUDGMENT AND ORDER PASSED BY THE COURT OF II
ADDITIONAL SENIOR CIVIL JUDGE & CJM, BELAGAVI, AT
BELAGAVI, IN MISCELLANEOUS APPEAL NO.16/2016, DTD.
29.4.2016, REVERSING THE JUDGMENT AND ORDER
PASSED BY THE COURT THE V ADDL. CIVIL JUDGE & JMFC
COURT, BELAGAVI, AT BELAGAVI IN O.S. NO.1405/2015
DTD. 16.4.2016 VIDE ANNX-B BEING ILLEGAL AND AGAINST
LAW AND THE JUDGMENT AND ORDER PASSED IN
O.S.1405/2015 ON I.A. NO.1 DTD. 16.1.2016 PASSED BY THE
COURT OF V ADDL. CIVIL JUDGE & JMFC, BELAGAVI, AT
BELAGAVI BE CONFIRMED.
THIS PETITION COMING ON FOR PRELIMINARY HEARING B
GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners are before this Court assailing the order dated 29.04.2016 passed in MA No.16/2016. 3
2. The petitioners herein are the defendants in OS No.1405/2015 filed by the respondents herein seeking a declaration that the respondents herein, who are the plaintiffs are the owners by adverse possession of the suit schedule property and have sought for consequential relief of injunction. In the said suit, the respondents herein have filed an application under Order 39 Rule 1 and 2 read with Section 151 of CPC seeking grant of temporary injunction. The Trial Court on considering the application, through its order dated 16.01.2016 had rejected the application. The respondents herein claiming to be aggrieved by the said order had preferred an appeal in MA No.16/2016.
3. The lower appellate Court by its order dated 29.04.2016 has allowed the appeal setting aside the order dated 16.01.2016 passed by the Trial Court and granted the order of temporary injunction.
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4. Against the said order passed by the lower appellate Court, the petitioners are before this Court. This Court at the first instance has granted the interim order of status-quo which is in force.
5. The respondents though served are unrepresented.
6. Heard the learned counsel for the petitioners and perused the petition papers.
7. At the outset, it is necessary to notice that the respondents herein are claiming the right in respect of the property by way of adverse possession to seek the right thereof. In that regard, relief of injunction has been sought. It is in that circumstance, the consideration is necessary, as to whether the order of temporary injunction would be justified. The trial Court at the first instance while rejecting the request for injunction had kept in view the decision of the Hon'ble Supreme Court in the case of 5 Gurudwara Sahib Vs. Gram Panchayat Village Sirthala & Another, 2014 SAR (Civil) 33. In the said decision, the Hon'ble Supreme Court has held that the claim for adverse possession can only be used as a shield and not as a sword. It is in that circumstance, since the plaintiffs have sought for declaration of right, in that light, the injunction had granted by the Trial Court. Rejecting the same, the lower appellate Court while taking a different view has assessed the documents to arrive its conclusion. In that regard, what has been referred to is the revenue documents relating to the property and notice that had been issued on behalf of the petitioners herein, due to which, the lower appellate Court has arrived at a conclusion that the respondents herein are in possession of the suit schedule property. Therefore, the injunction is ordered to be granted. The issue is as to whether the present possession as claimed by the respondents herein could have been accepted in the circumstances, as it has been claimed. The respondents are claiming the right 6 under their father, who was a tenant in respect of the said property.
8. In the backdrop of the contention relating to the adverse possession, what become relevant is also a situation where the consideration has been made and the documents have been relied upon. It is no doubt true, the father of the respondents had filed a suit in OS No.818/1988, wherein he had to seek protection of his possession. Through the judgment dated 27.06.1989 it was ordered that the dispossession cannot be done without due process of law, due to the fact it was found that the father of the respondents was a tenant in respect of the property. Since the eviction was to be made through due process of law, the eviction petition in HRC No.31/1989 was filed under Section 21(1)(j) of the Karnataka Rent Control Act with a request for possession of the property for the purpose of the demolition and reconstruction. A compromise was entered in the said 7 proceedings, where the tenant agreed to vacate so as to enable the construction to be put-up and accordingly demolition was made. The right was granted to the tenant to occupy the portion regarding which possession is to be given after construction.
9. It is one aspect of the matter to ultimately arrive at a conclusion as to whether, the said compromise has materialized and in that light the possession was to be taken in terms thereof. However, prima facie it indicates that pursuant to the said compromise, the order was passed in the eviction suit, the possession was taken and building was demolished. If that be the position, either the tenant had right to seek for implementation of the compromise that was entered in the suit or for such other necessary relief including re-entry in accordance with law. In that light, there is no other legal proceedings to that effect. At this stage, when the sons of the tenant are presently claiming the adverse position to the property, 8 these aspects of the matter no doubt would require detail consideration in the suit. But in any event, the same cannot be assumed to restrain by way of temporary injunction, since the possession of the property is yet to be established. Merely because, certain entries in the revenue records are referred to and the notice has been issued, that by itself would not indicate that subsequent to the order passed in the eviction petition, the father of the respondents was put in possession or thereafter the respondents have continued in possession in any other manner. Further, keeping in view the position that initially the father of the respondents had claimed the right to the property as a tenant and in that light, restraint order was passed in the earlier suit also subsequently, the eviction proceedings was initiated, the claim for adverse possession is a matter, which requires to be looked into in the entire background of the case not merely because a claim has been made.
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10. Therefore, if that be the position, I am of the opinion that the Trial Court though had not passed an elaborate order was justified through its order dated 16.01.2016 and for that reason, the impugned order dated 29.04.2016 passed in MA No.16/2016 is liable to be set- aside. Accordingly, the order impugned dated 29.04.2016 passed in MA No.16/2016 is set-aside.
11. All the contentions are left open to be urged in the suit on merit. Any of the observations herein shall not weigh in the mind of the Court below while considering the suit on merit.
12. The petition is accordingly, disposed of.
Sd/-
JUDGE JTR