Karnataka High Court
Sri Magadi Rangaiah vs Sri D Venkatesh on 27 June, 2017
Author: B.Veerappa
Bench: B. Veerappa
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JUNE, 2017
BEFORE
THE HON' BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION No.22837/2017(GM-CPC)
BETWEEN:
1. SRI MAGADI RANGAIAH,
S/O LATE R. GANGARANGAIAH,
AGED ABOUT 49 YEARS,
2. SRI. T.G. KRISHNAPPA,
S/O LATE R. GANGARANGAIAH
AGED ABOUT 51 YEARS,
BOTH THE PETITIONERS
ARE RESIDING AT THAGIKUPPE VILLAGE,
KASABA HOBLI, MAGADI TALUK,
RAMANAGARAM DISTRICT.
... PETITIONERS
(BY SRI T. SESHAGIRI RAO, ADVOCATE)
AND:
1. SRI D. VENKATESH,
S/O LATE DASAPPA,
AGED ABOUT 59 YEARS,
R/AT NO.12, 7TH C MAIN ROAD,
3RD STAGE, 4TH BLOCK,
BASAVESHWARANAGAR,
BENGALURU-79.
2. SRI. D. VENKATESH,
S/O LATE DASAPPA,
AGED ABOUT 59 YEARS,
R/AT SHINGIPALYA,
2
KASABA HOBLI,
MAGADI TALUK,
RAMANGARAM DISTRICT-570023.
... RESPONDENTS
(BY SRI NANJUNDA SWAMY N., ADVOCATE FOR C/R1)
...
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH OF THE
IMPUGNED ORDER DATED 22.11.2016 ON PASSED BY THE
ADDITIONAL CIVIL JUDGE AND JMFC, MAGADI ON I.A.NO.1 IN
O.S.NO.295/2016 ON THE FILE OF ITS COURT, FOUND AT
ANNEXURE-C TO THE W.P., WHICH WAS AFFIRMED BY AN
ORDER DATED 28.4.2017 ONE PASSED BY THE SENIOR CIVIL
JUDGE, MAGADI IN M.A.NO.1/2017 WHO DISMISSED THE
MISCELLANEOUS APPEAL ONE FILED BY THE PETITIONERS
FOUND AT ANNEXURE-F TO THE W.P FURTHER PASS AN
APPROPRIATE ORDER TO ALLOW THE IA.NO.1 ON FILED BY
THE PETITIONERS HEREIN IN O.S.NO.295/2016 ON THE FILE
OF THE ADDITIONAL CIVIL JUDGE & JMFC, MAGADI
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The present writ petition is filed by the plaintiffs being aggrieved by the impugned order dated 22.11.2016 on I.A.1 made in O.S.No.295/2016 by the Additional Civil Judge and JMFC., Magadi rejecting the application for temporary injunction filed by them and was confirmed by the order dated 28.4.2017 passed in M.A.No.1/2017 by the Senior Civil Judge and JMFC., 3 Magadi dismissing the miscellaneous appeal filed by the plaintiffs.
2. The plaintiffs filed a suit for permanent injunction in respect of the suit schedule property contending that they are the absolute owners and in possession and enjoyment of land bearing Sy.No.112 to an extent of 1 acre 12 guntas out of 5 acres 39 guntas situated at Thagikuppe village, Kasaba Hobli, Magadi Taluk, Ramanagara District. The Khatha also stands in the name of their father and they have raised Ragi crops in the suit schedule property. It is their further contention that the defendants, who are strangers and having no right in the suit schedule property, is trying to interfere with their peaceful possession and enjoyment of the suit schedule property etc.
3. The defendants filed their written statement denying the entire plaint averments and contended that there is a road existing in Sy. No.112 and they are using 4 the said road after obtaining necessary license from the Department of Mines and Geology, Ramanagar for transportation of sand, etc., and hence sought for dismissal of the suit.
4. The plaintiffs also filed an application - I.A.I for temporary injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the suit schedule property by reiterating the averments made in the plaint. The said application was resisted by the defendants reiterating the averments made in the written statement.
5. The trial Court considering the entire material on record has come to the conclusion that the plaintiffs have failed to show that there is any prima facie case against the defendants in respect of the suit schedule property and accordingly, by the impugned order rejected the application for temporary injunction filed by the plaintiffs which was challenged in M.A.No.01/2017 5 by the plaintiffs before the Senior Civil Judge & JMFC., Magadi, who by the impugned order dated 28th April, 2017 concurred with the findings of fact recorded by the trial Court and dismissed the appeal. Aggrieved by same, the present writ petition is filed by the plaintiffs.
6. I have heard the learned Counsel for the parties to the lis and perused the entire material on record carefully.
7. Sri Sheshagiri Rao, learned Counsel for the petitioners-plaintiffs vehemently contended that both the Courts below have not considered the material documents produced by both the parties and erroneously have recorded a finding that there is a road existing in Sy.No.112 which is without any basis. At one breath it has also recorded a finding that no property of the plaintiffs' is taken away and in another breath it comes to the conclusion that the road comes in a 'B' Kharab land which is meant for public purpose according to Section 67 of the Karnataka Land Revenue 6 Act, 1964 and no one should be deprived either by plaintiffs or by Court from using such road for access for their respective land, carrying business or residential house. He further pointed out the trial Court has held that if the injunction is granted restraining the defendants from using the suit property as a road, it amounts to violation of fundamental right guaranteed under Article 19 Clause 1(g) of the Constitution of India. He further contended that since both the Courts below have pointed out that there are no records showing existence of a road, in the absence of any material documents, both the Courts below failed to exercise their discretionary power for grant of injunction. Hence, the same is vitiated. Therefore, he sought to set aside the impugned order passed by the Courts below by allowing the present writ petition.
8. Sri Nanjunda Swamy.N., learned Senior Counsel for respondent No.1/defendant No.1 sought to justify the impugned orders and strenuously contended 7 that there is a road existing in Sy.No.112 measuring 1 acre 12 guntas. He further contended that both the Courts below have concurrently held that the plaintiffs- petitioners have not made out any ground to grant injunction restraining the defendants-respondents from using the suit property as a road in Sy.No.112 measuring 5 acres 0.30 guntas. Therefore, he sought to dismiss the writ petition filed by the plaintiffs.
9. Having heard the learned Counsel for the parties, the only point that arises for consideration in the present writ petition is:
"Whether the Court below is justified in passing the impugned order rejecting the application for grant of temporary injunction in favour of the plaintiffs in exercise of discretionary power under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure in the facts and circumstances of the present case?"
10. It is an undisputed fact that the plaintiffs filed a suit for temporary injunction in respect of suit 8 schedule property morefully described in schedule 'A' measuring 1 acre 12 guntas in Sy.No.112 situated at Thagikuppe village, Kasaba Hobli, Magadi Taluk, Ramanagara District contending that they are the owners and in possession of the suit property and defendants without any manner of right, title and interest are interfering with the peaceful possession and enjoyment of the same. It is the specific case of the defendants that there is a road existing in the suit property and they and others are using the said road for their day to day activities. Even the 2nd defendant is transporting mining sand and crushed stones in the vehicle from Sy.No.99 of Belagumba village through this road and there is no other alternative road except the road which is in the suit schedule property.
11. The trial Court considering the entire material on record by the impugned order has categorically recorded a finding at para-7 that on perusal of the RTC 9 in respect of Sy.No.112 which comprises total measurement of 5 acres 0.30 guntas out of which 0.31 guntas has been shown as 'B' Kharab land and that the Court has raised the question whether the way which was used as if road comes within 'B' Kharab land and on the same Kharab land, the way is existing and it has been used by the public at large, but either of the parties or Counsel have convinced the Court in this regard. But the Court can easily assess the 0.31 guntas of 'B' Kharab land might be deducted for using way or motorable road and no property of the plaintiffs is taken away. In one breath it has recorded that recently the road has been renovated by Thaggikuppe Grama Panchayathi and if the defendants are not following the terms and conditions imposed by the Deputy Director, Department of Mines and Geology, Ramanagara regarding the grant of license, the plaintiffs have got every right to approach the licensing authority and they can seek for cancellation of licenses and not before the 10 Court. In another breath, it has recorded that the road has been encroached and it is not in existence. Hence, no prima facie case is made out by the plaintiffs. Accordingly, I.A.I is rejected.
12. The Lower Appellate Court confirming the finding recorded by the Court below dismissed the appeal holding that the existence or no existence of the road in the Kharab land has to be decided at the time of trial. The available documents prima facie establishes the existence of the road, therefore, the contention of the appellants is not acceptable one. It is further recorded that the plaintiffs have not produced any documentary evidence to show that, no road is in existence in Sy.No.112 of Thagikuppa village and he has not produced the sketch to show that where the 'B' Kharab land comes in Sy.No.112 and Survey sketch to show that there is no existence of the road in the said property.
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13. Both the Courts below have recorded inconsistence findings without referring to the material documents except observing that there is no basis to come to the conclusion. Both the Courts have failed to notice that the plaintiffs have filed the suit only in respect of Sy.No.112 measuring 1 acre 12 guntas and not 5 acres 39 guntas. It is not the case of the defendants or the Courts below that, the road is existing only in Sy.No.112 measuring 1 acre 12 guntas belonging to the plaintiffs out of 31 guntas has been shown as 'B' Kharab land. There is no clarity in the impugned orders whether the road is in existence either in 31 guntas of the land of the plaintiffs or in the lands of M.R. Mukund i.e. Sy.No.113. The claim of the plaintiffs is only in respect of 1 acre 12 guntas and not 5 acres 39 guntas in Sy.No.112. If that is so, there is no clarity whether this 'B' Kharab land might be deducted for using way or motorable road. In the absence of any material documents produced, the Courts below cannot 12 assume and presume and ultimately come to the conclusion that the road is existing in Sy.No.112 measuring 1 acre 12 guntas without any basis.
14. Though Sri Nanjunda Swamy. N., learned Senior Counsel for the defendant-caveator respondent No.1 though sought to justify the impugned order relying upon several annexures produced along with statement of objections, he is not in a position to show where exactly the road is in existence in Sy.No.112 measuring 1 acre 12 guntas and not in 31 guntas as recorded by the Courts below. In the absence of any material documents relied upon by the Courts below, refusal of injunction, which is a discretionary power should be exercised cautiously. Since the same has not been done by both the Courts below, the impugned orders cannot be sustained.
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15. For the reasons stated above, the point raised in the present writ petition is answered in the negative holding that the Courts below are not justified in rejecting the application filed by the plaintiffs for grant of temporary injunction under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure and the matter requires reconsideration for the simple reason that the trial Court as well as the Appellate Court have not referred to any of the documents and what is the basis to come to the conclusion that there exists a road is not forthcoming. Hence, the trial Court has recorded a negative finding against the plaintiffs that they have not produced any document to show existence of road. It is the specific case of the plaintiffs that there is no road existing in their lands measuring 1 acre 12 guntas in Sy. No.112 of Thaggikuppe village, but the trial Court has proceeded on the basis that the entire Sy.No.112 comprises total measurement of 5 acres 30 guntas out of which 31 guntas has been shown as 'B' Kharab land, 14 the identity of which is in dispute. The trial Court has to reconsider afresh based on the material documents to be produced by both parties recording a finding only in respect of 1 acre 12 guntas whether any road is existing in the suit property and not in 5 acres 30 guntas and pass orders in accordance with law within 30 days from the date of receipt of a copy of this order.
16. However, it is made clear that till such consideration by the trial Court, the parties are directed to maintain status quo as on today.
Accordingly, writ petition is disposed of.
Sd/-
Judge Nsu/-