Karnataka High Court
Akkamahadevi @ Mahadevi W/O ... vs The West Cost Paper Mills Ltd., on 25 August, 2016
Author: P.S.Dinesh Kumar
Bench: P.S.Dinesh Kumar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
Dated this the 25th day of August, 2016
BEFORE
THE HON'BLE MR.JUSTICE P.S.DINESH KUMAR
Writ Petition No.106423/2016 (GM- CPC)
BETWEEN
1. AKKAMAHADEVI @ MAHADEVI,
W/O SHEKHARGOUDA PATIL
@ KHANAGOUDAR, AGE: 46 YEARS,
OCC: AGRICULTURE & HOUSEWORK,
R/O: KUNNUR, TQ: SHIGGAON,
DIST: HAVERI.
2. NIRANJANGOUDA S/O SHEKHARGOUDA
PATIL @ KHANAGOUDAR, AGE: 20 YEARS,
OCC: AGRICULTURE & STUDENT,
R/O: KUNNUR, TQ: SHIGGAON, DIST: HAVERI
3. PRAMODGOUDA S/O SHEKHARGOUDA PATIL
@ KHANAGOUDAR, AGE: 14 YEARS, [MINOR],
OCC: STUDENT, R/O: KUNNUR, TQ: SHIGGAON,
DIST: HAVERI, R/BY: MINOR GUARDIAN
NATURAL MOTHER I.E., PETITIONER NO.1.
4. KUMARI PRIYANKA D/O SHEKHARGOUDA PATIL,
@ KHANAGOUDAR, AGE: 16 YEARS, [MINOR],
OCC: STUDENT, R/O: KUNNUR, TQ: SHIGGAON,
DIST: HAVERI, R/BY: MINOR GUARDIAN
NATURAL MOTHER I.E., PETITIONER NO.1.
... PETITIONERS
(By Sri M S HARAVI, ADV.,)
AND
THE WEST COST PAPER MILLS LTD.,
BANGUR NAGAR DANDELI-581 325,
POST BOX NO.5, R/BY K.G.GIRIRAJ,
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AUTHORIZED SIGNATORY,
TQ: HALIYAL, DIST: KARWAR. ... RESPONDENT
(By Sri PRASHANTH T AREGULI, ADV.,)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTIONI OF INDIA PRAYING TO QUASH THE
ORDER DATED: 04.07.2016 PASSED BY THE LEARNED
PRINCIPAL DISTRICT AND SESSIONS JUDGE, HAVERI IN
MISC.APPEAL NO.29/2015 AS PER ANNEXURE-M AND RESTORE
THE ORDER ON I.A.NO.II DATED;16.12.2015 PASSED BY THE
LEARNED PRINCIPAL SENIOR CIVIL JDUGE, HAVERI IN
O.S.NO.78/2015 AT ANNEXURE-J.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS, THIS DAY, P.S.DINESH KUMAR. J.,
PRONOUNCED THE FOLLOWING:-
ORDER
In this writ petition, petitioners are calling in question the order dated 4.7.2016 allowing the Misc. Appeal No.29/2015 by the Lower Appellate Court.
2. Heard Sri M.S. Haravi, learned Counsel for the petitioners and Sri Prashant T. Areguli, learned Counsel for the respondent.
3. Petitioners are plaintiffs before the Trial Court. The suit is one for declaration and possession. The case of the plaintiffs is that agricultural property measuring 64 acres 20 guntas in R.S.No.31/8 of Mamdapur village belonged to their :3: family. They filed O.S.No.39/2010 for partition and separate possession of their share in the joint family property and the same was decreed. The defendants therein filed Regular Appeal No.112/2011 before the Principal District and Sessions Judge, Haveri. Parties entered into a compromise in the said appeal, in which, the said property in R.S.No.31/8 fell to the share of the plaintiffs.
4. During the pendency of partition suit, one of the family members Smt. Shankaravva entered into an agreement with the first respondent herein and permitted them to grow Nilgiri trees for a period of five years to be reckoned from 10.3.2011. The petitioners/plaintiffs have filed the instant suit for declaration and possession. In the said suit, they filed I.A.No.II under Order 39 Rules 1 and 2 CPC for grant of temporary injunction. Trial Court allowed the said I.A. and granted temporary injunction against the respondent herein. On appeal, the Lower Appellate Court has reversed the said order and dismissed I.A.No.II.
5. Assailing the correctness of the order passed by the Lower Appellate Court, learned Counsel for the petitioners :4: argued that the said Smt. Shankaravva with whom the respondent has entered into an agreement had no authority to enter such an agreement. Admittedly, the said agreement has come into existence during the pendency of partition suit, wherein, the property in question has fallen to the share of the petitioners. Trial Court on proper appreciation of the material on record rightly granted an order of temporary injunction. The Lower Appellate Court erroneously allowed the appeal. Accordingly, he prays for allowing this writ petition.
6. Per contra, learned Counsel for the respondent supporting the impugned order contended that the respondent has entered into a valid agreement with the owner in possession of the property in question at the material point of time. In furtherance thereof, they have planted Nilgiri trees. Therefore, the respondent is entitled to cut and take away the trees. Accordingly, he prays for dismissal of this writ petition.
7. Admittedly, petitioners have filed O.S.No.39/2010 for partition and separate possession against the said :5: Smt. Shankaravva. Parties have entered into a compromise in R.A.No.112/2011 filed by the said Smt. Shankaravva. A perusal of compromise petition produced as annexure 'F' shows that the property in question has fallen to the share of the petitioners herein. Thus, it is manifest that the property in dispute was a joint family property. There is no reference of any act or omission on the part of said Smt. Shankaravva with regard to the property in question in the compromise petition dated 25.7.2014.
8. A copy of the Contract relating to 'right to grow plantation' dated 10.3.2011 entered into between the respondent and said Smt. Shankaravva is produced as annexure 'C' to this writ petition. Clause (1) to (3) to the said Contract read as follows:-
"1) That the O wner is the kab jedar and holder of the agricultural land bearing Sy.No.31, Hissa No.8 measuring 64A.15 G assessed at Rs.47.00 situated at MAMADAPUR, Taluka: SIGGAON. State KARNATAKA and he (sic she) has handed over the physical possession of the said land to the Company today f or the purpose of growing the plantation;:6:
2) That the o wner/s of the l and has provided the above mentioned land belonging to him (sic her) to the Company f ree f rom encumbrances and has agreed not to sell, lease, alienate or create any sort of encumbrances whatsoever over the said land during the period of this Contract without the written consent of the Company.
3) That the O wner of the land has also agreed that he (sic she) has no rights whatsoever over the pl antation in the concerned land and nor the co-operative society or any other f inancial organizations will be allo wed to attach or sell the concerned plantation f or any dues to be recoverable f rom the O wner of the land;"
9. The petitioners have got a legal notice dated 8.2.2011 issued to the respondent alleging that the respondent has entered into an illegal agreement with Smt. Shankaravva against whom they have filed a suit for partition. It is also alleged in the notice that the respondent was levelling the land by using an earthmoving equipment and planting the Nilgiri plants.
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10. A combined reading of the Contract signed by Smt. Shankaravva (Annexure 'C') the legal notice and the compromise petition filed in R.A.No.12/2011 clearly demonstrates that the petitioners were not in possession of the property in question as on the date of contract or compromise petition. The compromise petition is silent with regard to any acts or omissions on the part of the parties therein. It also does not contain any covenant with regard to delivery of possession nor any indemnity. Therefore, it can be safely held that as on the date of execution of the contract, Smt. Shankaravva was in possession of the property and has parted with the same in terms of the Contract permitting the respondent to grow Nilgiri trees. Petitioners with full knowledge of the Contract signed by Smt. Shankaravva have entered into the compromise. Therefore, in the absence of any covenant with regard to delivery of possession, by logical corollary it has to be held that actual physical possession of the property continued with the respondent in terms of the contract. In such circumstances, the Lower Appellate Court was justified in reversing the order of temporary injunction granted by the Trial Court.
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11. Learned Counsel for the respondent submitted that respondent would not contest the suit with regard to the declaration of title and shall hand over the possession of the land in question after cutting the Nilgiri trees.
12. In the light of the above discussion, it is clear that the possession of the property in question was with the respondent as on the date of filing of the instant suit in terms of the Contract signed by Smt. Shankaravva. In furtherance thereof, they have planted Nilgiri trees in the land. It is assured on behalf of the respondent that they would not contest the suit filed by the petitioners with regard to declaration. In the circumstances, if the order passed by the Lower Appellate Court is disturbed, the same would amount to permitting unlawful enrichment by the petitioners. Thus, the impugned order passed by the Lower Appellate Court does not call for any interference. The writ petition fails and the same is dismissed.
No costs.
Sd/-
JUDGE cp