Karnataka High Court
Sri. Biliya S/O Sambayya Gouda vs Sri. Gajanan S/O Parama Hegde on 13 August, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC-D:11563
WP No. 104384 of 2024
C/W WP No. 104139 of 2024
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 13TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
WRIT PETITION NO. 104384 OF 2024 (GM-CPC)
C/W
WRIT PETITION NO. 104139 OF 2024
IN WP NO.104384/2024 (GM-CPC)
BETWEEN:
SRI. BILIYA S/O. SAMBAYYA GOUDA,
AGED 65 YEARS, AGRICULTURIST,
RESIDING AT HAMMODIKERI,
GUDDEBALA, HOSAKULI,
TALUK: HONAVAR-581334.
...PETITIONER
(BY SRI. CHANDRASHEKHAR GOUDA, ADVOCATE)
AND:
SRI. GAJANAN S/O. PARAMA HEGDE,
AGED 74 YEARS, AGRICULTURIST,
RESIDING AT KAVALAKKI,
SAROJA
HANGARAKI MUGWA VILLAGE, TALUK: HONAVAR-581334.
Location: HIGH
...RESPONDENT
COURT OF
KARANTAKA
DHARWAD (BY SRI. A.P. HEGDE, ADVOCATE FOR C/R)
BENCH
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO CALL FOR THE ENTIRE
RECORDS IN O.S. NO.127/2023 PENDING BEFORE THE COURT OF
PRINCIPAL CIVIL JUDGE AND J.M.F.C. AT HONAVAR; ISSUE A WRIT
OF CERTIORARI OR SUCH OTHER WRIT DIRECTION OR ORDER
QUASHING THE JUDGMENT DATED 16/04/2024 PASSED BY THE
COURT OF SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE OF THE
FIRST CLASS AT HONNAVARA IN MISC. APPEAL NO.2/2024 VIDE
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NC: 2024:KHC-D:11563
WP No. 104384 of 2024
C/W WP No. 104139 of 2024
ANNEXURE-A BY REVERSING THE ORDER DATED 02/01/2024
PASSED BY THE COURT OF PRINCIPAL CIVIL JUDGE AND J.M.F.C. AT
HONAVAR ON I.A. NO.III IN O.S. NO.127/2023.
IN WP NO.104139/2024 (GM-CPC)
BETWEEN:
SRI. BILIYA S/O. SAMBAYYA GOUDA,
AGED 65 YEARS, AGRICULTURIST,
RESIDING AT HAMMODIKERI,
GUDDEBALA, HOSAKULI,
TALUK: HONAVAR-581334.
...PETITIONER
(BY SRI. CHANDRASHEKHAR GOUDA, ADVOCATE)
AND:
SRI. GAJANAN S/O. PARAMA HEGDE,
AGED 74 YEARS, AGRICULTURIST,
RESIDING AT KAVALAKKI,
MUGWA VILLAGE, TALUK: HONAVAR-581334.
...RESPONDENT
(BY SRI. A.P. HEGDE, ADVOCATE FOR C/R)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO CALL FOR THE ENTIRE
RECORDS IN O.S.NO.127/2023 PENDING BEFORE THE COURT OF
PRINCIPAL CIVIL JUDGE AND J.M.F.C. AT HONAVAR; ISSUE A WRIT
OF CERTIORARI OR SUCH OTHER WRIT DIRECTION OR ORDER
QUASHING THE JUDGMENT DATED 16/04/2024 PASSED BY THE
COURT OF SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE OF THE
FIRST CLASS AT HONNAVARA IN MISC. APPEAL NO.3/2024 VIDE
ANNEXURE-A BY REVERSING THE ORDER DATED 02/01/2024
PASSED BY THE COURT OF PRINCIPAL CIVIL JUDGE AND J.M.F.C. AT
HONAVAR ON I.A.NO.IV IN O.S.NO.127/2023.
THESE PETITIONS, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
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NC: 2024:KHC-D:11563
WP No. 104384 of 2024
C/W WP No. 104139 of 2024
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE H.P.SANDESH)
1. Heard the learned counsel for the petitioner and learned counsel for the respondent.
2. In these petitions, the prayer sought for is to issue a writ of certiorari or such other writ, direction or order quashing the judgment dated 16.04.2024 passed by the Court of Senior Civil Judge and Judicial Magistrate of First Class, Honnavara in Miscellaneous Appeal Nos.2/2024 and 3/2024 vide Annexure-A by reversing the order dated 02.01.2024 passed by the Court of Principal Civil Judge and Judicial Magistrate of First Class, Honnavara on I.A.No.III in O.S.No.127/2023 and also sought for issue any other appropriate orders as deems fit in the circumstance of the case.
3. The case of the petitioner before this Court is that his father Sri Sambayya S/o Biliya Gouda had purchased the property mentioned in the schedule to the counter claim on 22.11.1985 and he died and his legal -4- NC: 2024:KHC-D:11563 WP No. 104384 of 2024 C/W WP No. 104139 of 2024 heirs came on record of the subject property on 28.09.1995. The Assistant Commissioner, Bhatkal has rectified the Kharab land in property bearing Survey No.313 by his order No.RTS/Tiddupadi/Viva/2017-18 and the same was not challenged and this rectification was made on 30.12.2017.
4. The Assistant Director of Land Records, Honnavara has passed an order to make phodi on 16.03.2020. An appeal was filed by the respondent before the Deputy Director of Land Records, Karwar which came to be dismissed on 20.07.2022. The Assistant Director of Land Records, Honnavara has passed the phodi order and map. The appellant got his share as Survey No.313/A Hissa No.19 Area 2-2-8 Kharab 0-1-12 remaining 2-0-12 assessment 0.40 situated at Mugwa village, Honnavara Hobli, Honnavara Taluk and the said order was passed on 19.10.2022. The respondent has filed a suit for bare injunction with an application for temporary injunction for larger extent referring the petitioner's land on the file of -5- NC: 2024:KHC-D:11563 WP No. 104384 of 2024 C/W WP No. 104139 of 2024 the Principal Civil Judge, Honnavara in O.S.No.127/2023. The petitioner also filed written statement and objections to the application for temporary injunction and also he made counter injunction and an application for temporary injunction to the schedule mentioned in the counter claim. The respondent also filed written statement and objections to the application for temporary injunction filed by the appellant.
5. The Trial Court without considering the facts and documents on record, has allowed the application granting temporary injunction vide order dated 02.01.2024. The same was challenged before the Appellate Court in Miscellaneous Appeal No.2/2024 challenging the above order on the file of Senior Civil Judge and Judicial Magistrate of First Class, Honnavara. In the meanwhile, the Deputy Director of Land Records, Karwar has dismissed the appeal filed by the respondent and confirmed the ADLR order vide order dated 10.01.2024. The Appellate Court without proper -6- NC: 2024:KHC-D:11563 WP No. 104384 of 2024 C/W WP No. 104139 of 2024 appreciation of facts and documents on record has dismissed the appeal confirming the Trial Court order on 16.04.2024 and hence being aggrieved by the same, the above petitions are filed.
6. The main contention of the petitioner's counsel before this Court is that the order passed by the Court in granting temporary injunction is wholly erroneous and contrary to the law and opposed to the settled principles and hence the same is liable to be quashed. It is also contended that the Trial Court while passing the order impugned in the petitions, has not taken into consideration the relevant facts. Both the Courts have failed to consider that in entire original land no such kharab land was existed except 0-10-0 and the same was rectified as 0-7-8 by the Assistant Commissioner after acquisition for Honnavara-Bengaluru Road.
7. The respondent herein is claiming 1-0-0 kharab land without asking a prayer for declaration and possession and making PWD as party. The respondent did -7- NC: 2024:KHC-D:11563 WP No. 104384 of 2024 C/W WP No. 104139 of 2024 not challenge the Assistant Commissioner's order whereby confirming 'A' karab land was only 0-7-8 for entire land in Surrey No.313. According to title deeds executed in favour of respondent's father, clearly shows that the vendor had given possession only 1-19-0 land. Both the Courts while passing the judgment/order impugned has not appreciated the vital and relevant evidence which has resulted in its passing an erroneous judgment/order.
8. It is also contended that the Trial Court failed to consider in granting of temporary injunction the fact that respondent had not succeeded in various proceedings instituted by him earlier is also relevant factor. There was no proof of possession of the respondent over the suit land. Documents showed prima facie ownership and possession of the petitioner over the land. Petitioner is a true owner. Unless right of lawful possession is made out, injunction cannot be granted.
9. The First Appellate Court also committed an error in confirming the judgment of the Trial Court without -8- NC: 2024:KHC-D:11563 WP No. 104384 of 2024 C/W WP No. 104139 of 2024 examining the availability of land and failed to take note of the fact that there was no kharab land to the extent of 1 acre. Counsel in support of his argument, relied on the document of plaint which is marked as Annexure-B and brought to notice of this Court that in schedule total extent is mentioned as 2 acre 19 guntas and the same is evidenced against the records.
10. Counsel also brought to notice of this Court the sketch which was prepared by the plaintiff while filing the suit.
11. Counsel would referring to the written statement filed by the defendant marked as Annexure-C and also the prayer sought in I.A.No.III filed under Order 39 Rule 1 and 2 of CPC as per Annexure-D and statement of objections filed to I.A. marked as Annexure-E, would contend that both the Trial Court as well as the First Appellate Court erred in granting the relief. The prayer in the application is different and the relief granted by the Trial Court is different. Counsel also brought to the notice -9- NC: 2024:KHC-D:11563 WP No. 104384 of 2024 C/W WP No. 104139 of 2024 of this Court annexure-A wherein the first Appellate Court passed the impugned order confirming the order passed by the Trial Court. Counsel would also submit that the petitioner has filed another W.P.No.104139/2024 and the same is filed against the order dated 16.04.2014 by the Court of Senior Civil Judge and JMFC at Honnavar in M.A.No.3/20224 vide Annexure-A. The counsel also brought to the notice of this Court that when the petitioner's father had purchased the property mentioned in schedule to the counter claim and also brought to notice of this Court a similar contention raised in the other petition passing of an order by the Assistant Commissioner rectifying the karab land and contend that the Trial Court committed an error in rejecting the application filed by the petitioner. The Trial Court as well as the Appellant Court while passing the order not taken note of the relevant facts and circumstances and order impugned is liable to be set aside. It is also contended that both the Courts have not taken into consideration the counter claim schedule property and petitioner has claimed temporary injunction
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NC: 2024:KHC-D:11563 WP No. 104384 of 2024 C/W WP No. 104139 of 2024 only to counter claim property and the petitioner has not claimed any injunction over the suit schedule property. It is also contended that though produced documents evidencing the above, the Trial Court has observed that the petitioner has not made out any prima facie case and not made any efforts to get temporary injunction is solely incorrect. Both the Courts have failed to apply proper provision of law. It is also contended that the Courts below while passing the order impugned have failed to appreciate the material on record which has resulted in its passing erroneous order and failed to consider that in spite of the petitioner establishing a strong prima facie case and balance of convenience, erroneously come to the conclusion that the petitioner has not made out any ground to grant the relief.
12. Per contra, counsel appearing for respondent would vehemently contend that the Trial Court having considered the pleadings of the parties both in the plaint as well as written statement, rightly allowed the
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NC: 2024:KHC-D:11563 WP No. 104384 of 2024 C/W WP No. 104139 of 2024 application. He would contend that though in terms of the document, the area is only 1 acre 19 guntas but there is kharab land to the extent of 1 acre, the relief sought for 2 acres 12 guntas. The same is taken note of by the Trail Court as well as the First Appellate Court and granted the relief and not committed any error. The Appellant Court has passed only restraint order in demolishing the built area in suit schedule property and for encroaching over the suit property and not committed any error. Counsel also vehemently contend that attempt was made by the defendant making counter claim and the very apprehension of the petitioner that the respondent having only 10 cents of karab land and not more than 1 acre cannot be accepted. Counsel also vehemently contend that the very document itself clearly disclose that there was a karab land to the extent of 1 acre and the document which have been relied upon by the petitioner cannot be accepted. The Trial Court while passing the order also taken note of the material which have been placed before it and reasons are also assigned in the order that prayer
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NC: 2024:KHC-D:11563 WP No. 104384 of 2024 C/W WP No. 104139 of 2024 sought in the application, it is clear that prayer sought in the application will fall under Order 39 Rule 3(a) of CPC and not fit within the purview of 1a of CPC. The petitioner is claiming that defendant be restrained from enjoyment over the suit schedule property. In O.S.No.127/2023, the Trial Court having considered the material on record rightly rejected the application filed by the defendant under Order 39 Rule 1 and 2 of CPC and rightly comes to the conclusion that the defendant failed to prove the maintainability of I.A. No.4 and defendant has failed to prove his prima facie case and not committed any error. Counsel also contend that common judgment has been passed in M.A.No.2/2024 and M.A.No.3/2024 and first Appellate Court also while confirming the order of temporary injunction granted in favour of the plaintiff made discussion particularly in paragraph 21 that no dispute among the parties that the plaintiff is the owner and possessor of 1 acre 19 guntas in the suit property bearing Sy.No.313/2A and he acquired the possession through his father and his father acquired the right and
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NC: 2024:KHC-D:11563 WP No. 104384 of 2024 C/W WP No. 104139 of 2024 title through purchase. It is also observed that it is not in dispute that the defendant is also the owner and possessor of the counter claim schedule land bearing Sy.No.313/A1A, new Sy.No.313/A19 measuring 2.12 acres. The main dispute between the plaintiff and defendant is relating to 1 acre of karab land. According to the plaintiff, he is in possession of 1 acre along with 1 acre 19 guntas. But as per the defendant, the said extent is acquired by National Highway and the same is in the possession of Public Works Department. However made an observation that in order to prove the prima facie case the plaintiff produced records of rights, mutation registers, copies of registered sale deeds, revenue sketches and orders passed by revenue authorities relating to the lands belonging to the plaintiff and defendant. The defendant also produced some documents i.e., copies of the registered sale deeds dated 02.04.1987 and 10.04.1995 placed on record from both sides prima facie shows that the father of the plaintiff namely Sri Parama Devaru Hegde purchased 20 guntas and 39 guntas of cultivable land
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NC: 2024:KHC-D:11563 WP No. 104384 of 2024 C/W WP No. 104139 of 2024 along with karab land in Sy.No.313/2A from its previous owner Sri Subraya Amase Gouda. The counsel brought to the notice of this Court the detail discussion made while passing the order confirming the order of granting temporary injunction in favour of plaintiff and the application filed by the defendant. The counsel brought to notice of this Court paragraph 31 and 32 regarding valuation made by both the Courts and it does not require any interference.
13. In reply arguments, the counsel for the petitioner referring to the documents produced before this Court i.e., true copy of RTC from 1929-30 to 1964-65, true copy of original KDT For, true coy of phodi entry No.5513 dated 01.03.1967 true copy of acquisition entry No.5590 dated 17.08.1968, true copy of form No.7 dated 07.08.1974, true copy of KJP entry No.6032 dated 05.06.1976, true copy of KDT Form, true copy of RTC of Sy.No.313/2A from 1966-67 to 2001-02, true copy of Binshetgi entry No.6258 dated 26.09.1979, true copy of
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NC: 2024:KHC-D:11563 WP No. 104384 of 2024 C/W WP No. 104139 of 2024 Varisa entry No.8023 dated 15.02.1985, true copy of registered sale deed dated 02.04.1987, true copy of registered sale deed dated 10.04.1995 true copy of registered sale deed dated 13.05.1996 true copy of old RTC of Sy.No.313/1A upto 2001, true copy of registered sale deed dated 22.11.1985, true copy of varisa entry No.9002 dated 19.10.1995, true copy of the Assistant Commissioner Bhtkal order dated 30.12.2017, true copy of ADLR order dated 16.03.2020, true copy of DDLR dated 20.07.2022, true copy of phodi order HNR/MPR No.469/2022-23, true copy of DDLR dated 10.01.2024, true copy of present RTC of respondent and true copy of present RTC of petitioner, vehemently contend that the available kharab land is only to the extent of 10 guntas not to the extent of 1 acre as contended by the respondent. He brought to the notice of this Court the sale deeds wherein the sale is made to the extent of 20 guntas and 39 guntas and total area is only 1 acre 19 guntas. He would also contend that when an attempt is made before the survey department and he failed to
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NC: 2024:KHC-D:11563 WP No. 104384 of 2024 C/W WP No. 104139 of 2024 success, the order passed by the DDLR attained its finality and hence he has given wrong boundaries to the extent of 2.10 guntas in stead of 1 acre 10 guntas and the same has not been considered by the Trial Court as well as the First Appellate Court. In support of his argument, the counsel relied upon the judgment of this Court in M.F.A.No.3761/2017 dated 06.07.2017.
14. Having heard the petitioner's counsel and also counsel appearing for the respondent and also the grounds which have been urged in both the petitions and the reasoning given by the Trial Court as well as the First Appellate Court, this Court has to take note of Order 39 Rule 1 and 2 of CPC while considering the claim made by the plaintiff as well as the defendant in the very same suit for temporary injunction. While granting temporary injunction, this Court has to take note of Order 39 Rule 1(a) to (c) of CPC which read as under:
1. Cases in which temporary injunction may be granted.--Where in any suit it is proved by affidavit or otherwise--
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NC: 2024:KHC-D:11563 WP No. 104384 of 2024 C/W WP No. 104139 of 2024
(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or
(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to 3 [defrauding] his creditors, 4 [(c) that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit,] the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property 5 [or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit] as the Court thinks fit, until the disposal of the suit or until further orders.
15. Having considered the proviso under Order 39 Rule 1 (a) to (c) of CPC as well as the relief sought by the plaintiff as well as the defendant while seeking relief under Order 39 Rule 1 and 2 of CPC, it is the specific case of the plaintiff while filing suit that he is having property to the extent of 2.19 guntas including 1 acre and his title to the
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NC: 2024:KHC-D:11563 WP No. 104384 of 2024 C/W WP No. 104139 of 2024 extent of 1.19 guntas and also karab land to the extent of 1 acre. The counsel for petitioner also brought to the notice of this Court the copy of the plaint which is marked as Annexure-B wherein it is stated that out of 2.23 guntas of land, 2.19 is shown as the total schedule property. It is also important to note that schedule description is given to the extent of 2.19 guntas and in the paragraph 3 of plaint, plaintiff has pleaded that property was purchased to the extent of 2.19 guntas and he is in possession of the same and the defendant is not having any right in respect of the said property.
16. It is not in dispute that both the parties agitated the matter before the survey department. The records disclose that the plaintiff was unsuccessful before the survey department. When this Court asked the respondent whether he has filed any appeal against the order of DDLR and counsel took time and submitted that an appeal is filed on 09.08.2024 i.e., 3 days after the hearing of the arguments. Hence, it is clear that earlier
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NC: 2024:KHC-D:11563 WP No. 104384 of 2024 C/W WP No. 104139 of 2024 order passed by the DDLR has attained finality while filing the suits.
17. It is also important to note that after passing of the order by the DDLR, the respondent sought relief of injunction to the extent of 2.19 guntas. The said fact has not been taken note of by the Trial Court while passing the order of temporary injunction. The counsel appearing for the petitioner also brought to the notice of this Court that for deciding the dispute only 10 guntas of kharab land is available and not 1 acre. When the plaintiff/respondent was unsuccessful before the survey department that extent is not to the extent of 1 acre and in an ingenious method, he had approached the Trial Court and obtained an order of temporary injunction to the extent of 2.19 guntas. Admittedly, the sale deed discloses to the extent he has purchased the land is 20 guntas as well as 39 guntas including karab land. When there is clear dispute with regard to 1 acre karab land, the Trial Court ought not to have granted the relief of temporary injunction and the
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NC: 2024:KHC-D:11563 WP No. 104384 of 2024 C/W WP No. 104139 of 2024 Trial Court has failed to take note of the fact that already the matter was decided before the ADLR as well as before the DDLR regarding extent of land is concerned and the same has not been considered and in spite of that order, the Trial Court passed an order of temporary injunction in favour of the plaintiff. The First Appellate Court has also failed to take note of the extent of land which he had purchased and the claim made with regard to 1 acre karab land. When he was unsuccessful before the survey department, that extent is not available to the extent what the plaintiff has claimed. The first Appellate Court ought to have taken note of the fact and ought not to have confirmed the order passed by the Trial Court. Hence, the Trial Court has committed an error in granting the order of temporary injunction and the Appellate Court has also committed an error in confirming the order of the Trial Court.
18. The other contention of the petitioner before this Court with regard to declining of the injunction sought
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NC: 2024:KHC-D:11563 WP No. 104384 of 2024 C/W WP No. 104139 of 2024 by him for counter claim property is concerned, no doubt in a suit filed by the plaintiff, the defendant can claim the temporary injunction and it is settled law that the temporary injunction sought by the defendant is maintainable if it is in respect of very same property of the suit schedule. When such being the case, the Trial Court has not erred in rejecting the application filed by the petitioner under Order 39 Rule 1 and 2 of CPC and coming to the conclusion that it does not come within the purview of Order 39 Rule 1 (c) of CPC and when there is a dispute with regard to extent of land is concerned, no doubt, the defendant claims the temporary injunction in respect of extent of 2.12 guntas excluding karab land and if any such extent the defendant claims, he can file a separate suit and seek for an order of temporary injunction and not in the present suit. Hence, both the Courts came to the conclusion that it will not fit into the purview of Order 39 Rule 1(c) of CPC.
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NC: 2024:KHC-D:11563 WP No. 104384 of 2024 C/W WP No. 104139 of 2024
19. In view of the discussion made above, I pass the following:
ORDER
(i) W.P.No.104139/2024 is dismissed.
(ii) W.P.No.104384/2024 is allowed.
(iii) The order dated 16.04.2024 by the Senior Civil Judge and JMFC, Honnavara in Misc. Appeal No.2/2024 and the order dated 02.01.2024 passed by the Prl. Civil Judge and JMFC, Honnavara in O.S.No.127/2023, are set aside.
The observation made in this order shall not influence the Trial Court while deciding the matter on merits.
Sd/-
(H.P.SANDESH) JUDGE SH upto para 10, NAA List No.: 1 Sl No.: 35