Karnataka High Court
Kallappa Rachappa Kiwad vs Mahadev Satappa Kiwad on 15 December, 2021
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 15TH DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MRS.JUSTICE M.G.UMA
M.F.A.NO.100741/2021 (CPC)
BETWEEN
1. KALLAPPA RACHAPPA KIWAD
AGE. 65 YEARS,
OCC. AGRICULTURIST,
R/O. DONWAD,
TQ. CHIKODI,
DIST. BELAGAVI
PIN CODE-591226
2. RAJASHEKHAR KALLAPPA KIWAD
AGE. 37 YEARS,
OCC. AGRICULTURIST,
R/O. DONWAD,
TQ. CHIKODI,
DIST. BELAGAVI,
PIN CODE-591226
... APPELLANTS
(BY SRI VITTHAL S TELI, ADV.)
AND
1. MAHADEV SATAPPA KIWAD
AGE. 60 YEARS,
OCC. AGRICULTURIST,
R/O. DONWAD,
TQ. CHIKODI,
DIST. BELAGAVI,
PIN CODE-591226
2. SUSHEELA MAHADEV KIWAD
AGE. 55 YEARS,
2
OCC. AGRICULTURIST,
R/O. DONWAD,
TQ. CHIKODI,
DIST. BELAGAVI,
PIN CODE-591226
3. VITHOBA KALLAPPA KIWAD
AGE. 35 YEARS,
OCC. AGRICULTURIST,
R/O. DONWAD,
TQ. CHIKODI,
DIST. BELAGAVI,
PIN CODE-591226.
4. MALLAPPA KALLAPPA KIWAD
AGE. 48 YEARS,
OCC. AGRICULTURIST,
R/O. DONWAD,
TQ. CHIKODI,
DIST. BELAGAVI,
PIN CODE-591226
5. RAJU SHANKAR KIWAD
AGE. 27 YEARS,
OCC. AGRICULTURIST,
R/O. DONWAD,
TQ. CHIKODI,
DIST. BELAGAVI,
PIN CODE-591226
... RESPONDENTS
(BY SRI V.M.SHEELVANT ADV. FOR RESPONDENT NO.2
NOTICE TO R3 & 4: IS HELD SUFFICIENT)
THIS MISCELLANEOUS FIRST APPEAL FILED UNDER
ORDER XLIII RULE 1(R) OF CODE OF CIVIL PROCEDURE, 1908
AGAINST THE ORDER DATED 01.03.2021 PASSED IN
O.S.NO.109/2020 ON THE FILE OF THE PRINCIPAL SENIOR
CIVIL JUDGE, CHIKODI, ALLOWING THE IA NO.1 FILED U/O.
XXXIX RULE 1 AND 2 R/W SECTION 151 OF CPC.
THIS APPEAL COMING ON FOR THIS APPEAL HAVING
BEEN HEARD AND RESERVED FOR JUDGMENT ON 06.12.2021
COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
3
: JUDGMENT :
Defendant Nos.1 and 3 in O.S.No.109/2020 on the file of the Principal Senior Civil Judge Court at Chikkodi ("the Trial Court" for short) are before this Court challenging the impugned order dated 01.03.2021 allowing I.A.No.1 filed under Order XXXIX Rules 1 and 2 read with section 151 of the Code of Civil Procedure, 1908 ("CPC" for short) and restraining defendant Nos.1 to 5 by way of temporary injunction restraining them from interfering with peaceful possession and enjoyment of the suit schedule properties in any manner, until further orders.
2. Brief facts of the case are that, the plaintiffs/respondent Nos.1 and 2 have filed the suit in O.S.No.109/2020 before the Trial Court against defendant Nos.1 to 5 i.e., appellant Nos.1 & 2, respondent No.3 & 4 and defendant No.2 against whom the suit is already dismissed as not pressed 4 before the Trial Court, seeking declaration that the plaintiffs are the absolute owners of the suit schedule properties and consequential relief of permanent injunction restraining the defendants, there men etc., from causing obstruction to the plaintiffs in enjoying the suit schedule properties.
3. During the pendency of the suit, I.A.1 was filed by the plaintiffs under Order XXXIX Rules 1 and 2 read with section 151 of CPC praying for grant of temporary injunction against the defendants as prayed for. The said application was allowed under the impugned order, which is being challenged here.
4. Heard Sri Vittthal S.Teli, learned counsel for the appellants and Sri V.M.Sheelvant for respondent No.2 and perused the materials on record.
5. Learned counsel for the appellants submitted that, initially the properties were belonging to the common ancestor i.e., Sri Basappa. The plaintiffs and defendants who are the owners of their 5 respective properties are enjoying the same as per the boundaries that were in existence. The property belonging to the plaintiffs is separated from the property belonging to the defendants as there existed a bund, which is the boundary for enjoyment of the properties. The portion of the bund is already dismantled by the plaintiffs. Since there was boundary dispute between the parties, an application was moved for surveying the land and to fix the boundary by Taluka Surveyor. Accordingly, the property was surveyed and the PT.Sheet was drawn. Plaintiff No.1 challenged the said order before the Assistant Registrar of Land Records, Chikkodi ("ADLR" for short). Who allowed the appeal filed by plaintiff No.1 and the PT.Sheet drawn by the Taluka Surveyor was set aside. However, the parties were directed to challenge the earlier phodi before the Deputy Director of Land Records ("DDLR" for short). Accordingly, the parties to the suit have challenged the earlier phodi by preferring an appeal before the DDLR during 2019- 6
20. The said appeal was came to be allowed vide order dated 10.10.2019 and an order was passed for fresh phodi in R.S.No.44, in which, the schedule property is a part. Accordingly the Taluka Surveyor again measured the land and fresh phodi was effected as per PT.Sheet in respect of R.S.No.44/1 and R.S.No.44/7. The land belonging to plaintiff No.1 was assigned R.S.No.44/3 which is measuring 3.17 acres and the land belonging to plaintiff No.2 is assigned R.S.No.44/4 measuring 1.7 acres.
6. It is stated that the defendants are the owners of the adjoining land which is renumbered as R.S.No.44/5 measuring 3.38 acres. The defendants disputed the phodi before the ADLR and also filed an application for review of the order passed by the DDLR, before the Deputy Commissioner, Belagavi. Since, there is a boundary dispute between plaintiff No.1 and defendant No.1 they have entered into a written agreement dated 13.08.2018 even though the 7 surveys were undertaken and PT.Sheets were drawn, the same was disputed by either parties. But however, during survey it was disclosed that the plaintiffs have encroached 3½ guntas of land belonging to defendant No.1. Even though survey was conducted, the proper boundary was not fixed. The bund which was demarcating the land belonging to the plaintiffs and the defendants is partially dismantled by the plaintiffs. However, the Trial Court ignoring all these facts and circumstances, proceeded to pass the impugned order granting temporary injunction against the defendants.
7. Learned counsel further submitted that, the plaintiffs had filed O.S.No.79/2020 seeking similar relief of permanent injunction before the Principal Civil Judge & JMFC Court at Chikodi. A similar application in I.A.No.1 was filed under Order XXXIX Rules 1 and 2 read with section 151 of CPC seeking temporary injunction. The said application was came 8 to be dismissed vide order dated 10.09.2020, specifically holding that the plaintiffs have not proved their prima facie possession over the suit schedule property and therefore they are not entitled for grant of temporary injunction. Subsequently, the suit in O.S.No.79/2020 was not pressed and the same came to be dismissed. Thereafter the present suit was filed seeking declaration and injunction against the defendants. When the plaintiffs were unsuccessful in getting temporary injunction in O.S.No.79/2020, they cannot seek similar relief once again by filing the suit afresh.
8. Learned counsel contended that, the parties are growing their crops in their respective lands and they can continue to enjoy their properties as it is. But grant of temporary injunction in favour of the plaintiffs will disturb the possession of the land and it will give handle to the plaintiffs to dismantle the entire bund which is in existence to demarcate 9 the two lands. Therefore the learned counsel for the appellants prays for allowing the appeal and to set aside the impugned order passed by the Trial Court.
9. Per contra, learned counsel for the respondents supporting the impugned order submitted that, existence of the bund between the two lands is admitted. The survey sketch drawn by the surveyor after surveying the land R.S.No.44 discloses the various sub-divisions drawn in the said land. The schedule properties owned by plaintiff Nos.1 and 2 are also shown in the said sketch. It is not in dispute that the properties belonging to the defendants and the plaintiffs were demarcated by a bund. Under such circumstances, the defendants cannot claim that they were cultivating the land in question beyond the bund, which is admittedly in existence. When the plaintiffs filed the suit for declaration, the suit properties are to be preserved as it is. The impugned order granting temporary 10 injunction is a well reasoned order and it will not prejudice any of the parties to the suit. If on the other hand, the impugned order is set aside that will encourage the defendants to encroach over the properties that are in possession of the plaintiffs forcibly without recourse to law. Therefore, he prays for dismissal of the appeal as the impugned order will enable the parties to maintain status-quo, by restraining the defendants not to interfere with the enjoyment of the schedule property till further orders. In view of the same, learned counsel for the plaintiffs prays for dismissal of the appeal as devoid of merits.
10. Perused the materials on record.
11. In the light of the rival contentions of learned counsel for both the parties, the point that would arise for consideration of this Court is as follows:
"Whether the impugned order dated 01.03.2021 passed on I.A.No.1 in 11 O.S.No.109/2020 by the Trial Court calls for any interference by this Court?"
12. My answer to the above point is in the negative for the following reasons.
: REASONS :
13. On perusal of the materials that are placed before the Court in the light of the rival submissions, it is clear that the plaintiffs have filed O.S.No.79/2020 for a decree of permanent injunction in respect of the very same schedule property and an application in I.A.No.1 under Order XXXIX Rules 1 and 2 was filed seeking similar relief which is sought now under I.A.No.1. The said application was came to be rejected by the Trial Court by holding that the plaintiffs are not successful in proving their prima facie possession over the schedule lands. It was also observed that, admittedly there is a boundary dispute between the parties and even though the PT.Sheet was drawn after survey, the same is not yet been 12 finalized. Therefore, the PT.Sheet that was relied on by the plaintiffs cannot be the basis to seek temporary injunction that too in a suit filed for bare injunction. Thereafter admittedly, the suit was not pressed by the plaintiff with permission to file a comprehensive suit. Subsequently, O.S.No.109/2020 was filed seeking declaration over the suit schedule property and also for permanent injunction. In this suit, application in I.A.No.1/2020 was filed seeking temporary injunction against the defendants which was came to be allowed by the Trial Court.
14. During the course of arguments, learned counsel for the plaintiffs submitted that the plaintiffs will undertake to retain the bund as it is and they will enjoy their property up to the bund in question. Of course the same would be subject to the final result of the suit pending before the Trial Court. However, learned counsel for the appellants/defendant Nos.1 and 3 even though admits the existence of the bund 13 in question and even though submits that the defendants are enjoying the properties up to the bund objects for the impugned order solely on the ground that the earlier application filed by the plaintiffs in O.S.No.79/2020 was already dismissed.
15. From the materials on record, it is clear that the properties were originally owned by a common ancestor i.e., Late Basappa and subsequently and the property was sub-divided and being enjoyed by various sharers/ purchasers. Even though there is a boundary dispute between the plaintiffs and defendants, the existence of the bund in question is not in dispute. When both the parties admit the existence of the bund as boundary to their respective lands, I do not find any reason as to why the defendants should find fault with the Trial Court, which granted temporary injunction restraining the defendants from interfering with the plaintiffs' 14 possession and enjoyment of the suit schedule property till the disposal of the suit.
16. It is pertinent to note that the learned counsel for the plaintiffs submitted that the plaintiffs are ready and willing to get the Court Commissioner appointed to survey the lands in question with the assistance of the surveyor to put an end to the litigation and to get a final verdict from the Court. When admittedly there is boundary dispute between the parties who own the land adjacent to one another, appointment of the Court Commissioner assisted by surveyor and getting report from him would help the Trial Court in appreciating the contentions of the parties in a better manner. Till that exercise is done and the evidence of the parties were recorded, the properties in question are to be preserved as it is.
17. Under such circumstances, I do not find any reason to reject the claim of the plaintiffs for 15 grant of temporary injunction. Even though there is boundary dispute between the plaintiffs and defendants, it is not in dispute that the parties to the lis are in possession of their respective bits of land except a portion of the land which is in dispute. Vacating of the temporary injunction granted by the Trial Court would definitely lead to the further complications in the matter, which will not be in the best interest of any of the parties to the litigation.
18. I have gone through the impugned order passed by the Trial Court, It has discussed at length regarding the contentions taken by both the parties in the suit. It has also observed that there is a bund i.e., existing in between the lands belonging to plaintiffs and defendants, since time immemorial. Further it is observed that if the plaintiffs have encroached any portion of the land belonging to the defendants, it is for them to take necessary steps to recover possession of the said land in accordance with law. 16 But they cannot take the law into their own hand to dispossess the plaintiffs even if there is encroachment. I do not find any reason to differ with the Trial Court with such opinion, when the defendants admit that, the plaintiffs are the owners of the schedule properties, of-course subject to the measurement of the land and fixation of the boundaries, the impugned order passed by the Trial Court will preserve the property as it is, till disposal of the suit.
19. Therefore, I do not find any reason to entertain this appeal. Hence, I answer the above point in the 'negative' and accordingly the above appeal is dismissed.
Sd/-
JUDGE EM