Karnataka High Court
Smt.Kaveri W/O Basappa Badiger vs Shri.Sanjay S/O Annappa Pattar on 4 June, 2018
Author: B.V.Nagarathna
Bench: B.V. Nagarathna
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 4TH DAY OF JUNE 2018
BEFORE
THE HON'BLE MRS. JUSTICE B.V. NAGARATHNA
WRIT PETITION NO.102439/2018 GM-CPC)
BETWEEN:
1. SMT.KAVERI,
W/O BASAPPA BADIGER,
AGE: 37 YEARS, OCC: HOUSEWIFE,
R/O: GULAGANJIKOPPA, YADWAD,
TQ: SAVADATTI, DIST: BELAGAVI,
PIN CODE: 591136,
NOW RESIDING AT NO.36/2,
MARGAI GALLI, LAXMI NAGAR,
BELAGAVI, PIN CODE: 590001.
2. SHRI.MOUNESH
S/O HANAMANT PATTAR,
AGE: 30 YEARS, OCC: AGRICULTURE,
R/O: GULAGANJIKOPPA,
YADWAD, TQ: SAVADATTI,
DIST: BELAGAVI, PIN CODE: 591136.
3. SHRI.IRAPPA
S/O MAHANTAPPA BADIGER,
AGE: 27 YEARS, OCC: AGRICULTURE,
R/O: GULAGANJIKOPPA, YADWAD,
TQ: SAVADATTI, DIST: BELAGAVI,
PIN CODE: 591136. ...PETITIONERS
(BY SRI SANJAY S.KATAGERI, ADVOCATE)
2
AND
SHRI.SANJAY
S/O ANNAPPA PATTAR,
AGE: 38 YEARS, OCC: GOLDSMITH,
R/O: H.NO.36/2, MARGAI GALLI,
LAXMI NAGAR, OLD BELAGAVI,
PIN CODE: 590003. ...RESPONDENT
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO QUASH THE IMPUGNED ORDER DATED 15.12.2017
PASSED IN MISC.APPEAL NO.65/2017 BY THE III
ADDITIONAL SENIOR JUDGE, BELAGAVI AS PER
ANNEXURE-J HEREIN AND CONSEQUENTLY DISMISSING
THE SAID MISC.APPEAL NO.65/2017 AS FILED BY THE
RESPONDENT HEREIN AND THEREBY RESTROING THE
ORDER DATED 16.08.2017 PASSED ON I.A.NO.1 IN
O.S.NO.1064/2016 BY THE I ADDITIONAL CIVIL JUDGE,
BELAGAVI AS PER ANNEXURE-H HEREIN BY ALLOWING
THIS WRIT PETITION.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioners are defendants in O.S. No.1064/2016 pending on the file of the I Additional Civil Judge and JMFC, Belagavi. The said suit has been filed by the respondent seeking the relief of permanent injunction against the petitioners herein. Along with the plaint, 3 respondent filed an application under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure, 1908 (CPC). The Trial Court, by its order dated 16.08.2017, dismissed the said application. Being aggrieved, the respondent/plaintiff preferred an appeal before the III Additional Senior Civil Judge, Belagavi, (Appellate Court) in M.A. No.65/2017. By impugned order dated 15.12.2017, the appeal has been allowed and the defendants in the suit (petitioners herein) have been restrained from dispossessing the plaintiff and his family members from the suit property without due process of law. Being aggrieved, defendants in the suit have preferred this writ petition.
2. I have heard learned counsel for the petitioners. He submits that the petitioners are the owners of the suit property and that the respondent/plaintiff has filed the suit on a concocted gift deed dated 09.07.2016; that the Trial Court rightly held that prima facie the gift deed is a concocted document; that the plaintiff had not become the owner in possession of the suit property under 4 the said gift deed; that the wife of the petitioner Smt. Poornima Sanjay Pattar has not gifted the suit property to her husband under the said document as the property did not belong to her. He further submits that the petitioners are the owners and in possession of the suit property. Therefore, the Trial Court dismissed the application but the lower Appellate Court was not right in allowing the appeal.
3. Having heard learned counsel for the petitioners, it is noted that the respondent/plaintiff has filed the suit against defendants/petitioners herein restraining the defendants or anybody acting on their behalf from disturbing the peaceful possession and enjoyment of the suit schedule property. Along with the plaint, respondent/plaintiff filed an application under Order XXXIX Rule 1 and 2 CPC seeking to restrain the defendants from dispossessing the plaintiff and his family members from the suit property. The said application was dismissed by the Trial Court on the premise that the gift deed, dated 09.07.2016, on which the respondent/plaintiff relied upon 5 was a concocted document. Though it was a prima facie opinion expressed by the Trial Court, nevertheless, respondent/plaintiff was not successful in restraining the defendants from dispossessing him from the suit property. Being aggrieved by that order, the respondent filed M.A.No.65/2017. The Appellate Court has considered the case of the respective parties and has concluded that the Trial Court could not have formed an opinion on the genuineness of the document produced by the respondent/plaintiff, particularly, by stating that the gift deed was a concocted document. That is a matter to be considered at the stage of trial. In fact, the Trial Court has considered the application filed by respondent/plaintiff by having a "mini trial" over the document produced and has rejected the application filed by the plaintiff by opining that, prima facie, the gift deed dated 09.07.2016, is a concocted document and the said approach of the Trial Court is erroneous. The same has been rectified by the Appellate Court in the appeal filed by the respondent and accordingly, petitioners/defendants in the suit have been 6 restrained from dispossessing the plaintiff and his family members of the suit property without due process of law till disposal of the suit. I do not find any infirmity in the order of the Appellate court. There is no merit in the writ petition. Writ petition is dismissed.
Sd/-
JUDGE Kms