Karnataka High Court
Sayed Baba Jan vs O L Prabhu on 20 December, 2021
Author: B. M. Shyam Prasad
Bench: B. M. Shyam Prasad
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF DECEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD
WRIT PETITION NO. 12597/2021 (GM-CPC)
BETWEEN :
SRI. SAYED BABA JAN
S/O LATE SYED ANWAR
MOHAMMED
AGED ABOUT 40 YEARS,
R/AT BUDEN SAB PALYA
JALA HOBLI
BANGALORE NORTH TALUK
BENGALURU - 562 162.
... PETITIONER
(BY SRI. C.H. JADHAV., SENIOR ADVOCATE
SRI. GANGADHAR., ADVOCATE)
AND :
SRI. O. L. PRABHU
S/O LATE O M LINGAPPA
AGED ABOUT 61 YEARS,
R/AT NO.100, SHOLURU HOUSE,
RAILWAY PARALLEL ROAD
KUMARA PARK ROAD
BENGALURU - 560 020.
REP BY HIS GPA HOLDER
SRI R DINESH
AGED ABOUT 48 YEARS,
2
S/O LATE RAJANNA
R/AT NO.42, LINK ROAD,
MALLESWARAM
BENGALURU - 560 003.
... RESPONDENT
(BY SRI. G. KRISHNAMURTHY., SENIOR ADVOCATE FOR
SMT. G.K. BHAVANA FOR F.K.M ASSOCIATES
ADVOCATE FOR C/R)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH/SET ASIDE THE IMPUGNED ORDER DATED.
13.12.2019 PASSED BY THE V ADDL. DISTRICT AND
SESSIONS JUDGE, BENGALURU RURAL DISTRICT AT
DEVANAHALLI, IN M.A.NO.15038/2019 C/W
M.A.NO.15040/2019 AND M.A.NO.15046/2019 PRODUCED
AT ANNX-A.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is the plaintiff in O.S. No.45/2019 on the file of the Principal Civil Judge and JMFC, Devanahalli [for short, the civil Court']. The petitioner's applications [I.A. Nos.1 and 2] under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 [for 3 short, 'the CPC'] are allowed by the civil Court by its order dated 10.04.2019 while rejecting the respondent's application [I.A. No.3] under Order XXXIX Rule 4 of CPC. The civil Court by this order dated 10.04.2019 has restrained the respondent from interfering with the petitioner's asserted possession of land measuring 12,950.49 sq. meters [1,39,398 sq. feet] in Sy.No.79/8 [new No.117/3], Doddajala Village Panchayat E Khata No.150200200900600197 of Shettigere village, Jala Hobli, Bengaluru North Taluk [which is hereafter referred to 'the subject property'].
2. The respondent has impugned the civil Court's order dated 10.04.2019 in M.A. No.15038/2019, M.A. No.15040/2019 and M.A. No.15046/2019 on the file of the V Additional District and Sessions Judge, Bengaluru Rural District, Devanahalli [for short, the appellate Court']. The appellate Court, by its impugned 4 common order dated 13.12.2019, has allowed the respondent's appeals and has set aside the civil Court's order dated 10.04.2019. Therefore, the petitioner has filed the present petition impugning the appellate Court's common order dated 13.12.2019.
3. A brief statement on the petitioner's case:
3.1 The petitioner contends that the subject property is granted to his father, Sri. Syed Anwar Mohammed in the year 1978 and he is issued with Hakku Pathra dated 8.7.1978 in LND.RUC.SR.43/1978 and 3/1978-79. His father has died on 18.10.2013 leaving behind him, the petitioner's mother and four children, including the petitioner as his legal heirs. His family members have executed and registered the Release Deed dated 3.6.2016 releasing all their rights in the subject property in his favour. He has filed an application for change of revenue entries in his name 5 after the Release Deed dated 3.6.2016. He is in possession of the subject property and he has constructed a compound wall and also put up a board stating that he is the owner of the subject property.
3.2 The petitioner asserts that he has ascertained that though the respondent is the owner of a certain portion of the land in Sy. No.79, Shettigere Village, Jala Hobli, Bengaluru North Taluk, he is not in possession of any portion of the land in this survey number. The respondent is obstructing his cultivation of the subject property claiming that the same is a Government property and he is entitled to the same.
As regards the cause of action for the present suit, which is for permanent injunction, the petitioner has asserted that on 23.01.2019, the respondent along with his men attempted to demolish the compound wall 6 constructed by him with the help of earth movers and other vehicles.
4. A brief statement on the respondent's case:
4.1 The respondent, while denying the plaint assertions, submits that a certain H.G. Mallikarjun Wodeyar is granted 10 acres of land in Sy.No.79 of Shettigere Village, Jala Hobli, Bengaluru North Taluk.
Sri.H.G. Mallikarjun Wodeyar has transferred an extent of 7 acres in favour of Sri.O.Siddalingeshwara and another under the sale deed dated 17.06.1965. Sri O.Siddalingeshwara has transferred two extents with each measuring 1 acre 30 guntas [out of the extent of 7 acres] in his favour on 08.08.1994. He is put in possession of this extent simultaneously with the execution of these sale deeds dated 8.8.1994, and the 7 revenue records are mutated in his favour vide M.R. Nos.5/1996 and 6/1996. On his application, this extent of 3 acres and 20 guntas is diverted from agricultural to commercial purposes on 27.02.2004. He has paid all the taxes and the khata is also updated with the present local authority viz., Doddajala Village Panchayath and is assigned khata No.171/171.
4.2 The respondent further contends that this extent of 3 acres 20 guntas is bounded on the western side by National Highway No.7. The National Highways Authority of India has acquired an extent of 13,062 sq. feet out of the extent of 3 acres 20 guntas for the purposes of widening of the National Highway. He, with this acquisition, is in possession of the remaining extent which is 1,39,398 sq. feet [hereinafter referred to as 'respondent's property']. He has received compensation for the acquired extent consequent to the Special Land 8 Acquisition Officer's Award dated 13.12.2010. He has not entered into any transaction as regards this extent and he is in possession. He has put up a barbed fence on the front abetting the National Highway and constructed a stone slab compound on the eastern side.
4.3 The respondent has elaborately pleaded about the petitioner's alleged interference with his possession of 1,39,398 sq. feet. He has asserted that on 7.12.2018, the petitioner came to the subject property along with his men to forcibly enter his property. He was informed about the same by his close friend and attorney, Sri. R. Dinesh. His friend immediately rushed to the property and resisted such efforts ,and with his friend that he must visit Bengaluru, he visited the property. He is a resident of the United States of America. When he visited the property himself, there was again an interference and therefore, he has filed a 9 suit in O.S. No.602/2018. He has appointed a watchman and this watchman is looking after the property. He also states that he has executed a registered Power of Attorney in favour of his friend, Sri. R. Dinesh to conduct the suit.
5. The reasons assigned by the civil Court to allow the petitioner's application for temporary injunction:
5.1 The petitioner has filed I.A. No.1 for temporary injunction against the respondent for restraining him from damaging the compound wall and I.A. No.2 for restraining the respondent from interfering with his possession of the subject property. The civil Court, while elaborately referring to the different documents relied upon the parties, has opined that though the respondent disputes the identity of the subject property, it is clear that both the petitioner and 10 the respondent own certain portions in Sy. No.79 of Shettigere Village, Jala Hobli, Bengaluru North Taluk.
The civil Court, as regards the respondent's case that the petitioner is trying to take advantage of the revenue entries for certain portion of the land in Sy.No.79 of Shettigere Village, Jala Hobli, Bengaluru North Taluk in favour of a certain Mr. Syed Anwar Mohammed and the similarity with his father's name, has concluded that the burden of establishing title and possession of the subject property is on the petitioner and without a trial, it cannot be concluded that the petitioner is trying to take advantage of the revenue records in the name of Sri. Syed Anwar Mohammed.
5.2 The civil Court has brushed aside the respondent's contention that even according to the RTC relied upon by the petitioner the subject property is converted for commercial purposes but the petitioner is 11 asserting that the subject property is an agricultural land relying upon the photographs produced by the respondent. The civil Court has opined that, with the trial pending, it cannot conclude that the respondent is justified in contending that the petitioner could not have alleged interference with his possession on 23.01.2019 because he was in USA at that relevant time. The civil Court, for these reasons, has opined that the petitioner has established a prima facie case for trial and balance of convenience and irreparable injury for grant of temporary injunction.
6. The reasons assigned by the appellate Court:
6.1 The appellate Court has interfered with the civil Court's order firstly because the petitioner, who asserts that his father, Sri. Syed Anwar Mohammed is granted the subject property, has not produced the 12 original grant certificate and the petitioner has not produced acceptable document to show the boundaries relied upon by him to describe the subject property.
The appellate Court has observed that the petitioner relies upon sale agreement dated 2.10.2018 and the release deed dated 3.6.2016 to establish the identity of the subject property, but these are documents inter se the petitioner and his family members and these documents cannot establish the identity of the property.
6.2 The appellate Court has secondly observed that the petitioner relies upon RTCs to prima facie establish his title to and possession of the subject property describing it as an agricultural land, the RTCs [1997-2002] show that the extent of 5 acres is converted from agricultural to non-agricultural purposes by the Deputy Commissioner, Bengaluru Rural District on 13 10.05.1989. This belies the petitioner's case that the subject property is an agricultural land.
6.3 The appellate Court has next referred to the order dated 25.02.2013 by the Special Deputy Commissioner, Bengaluru North [Additional Taluk], Bengaluru in the proceedings initiated under section 136[3] of the Karnataka Land Revenue Act, 1964. The appellate Court has referred to these proceedings to refer to the different grants made in the lands in Sy. No.79 of Shettigere village, Jala Hobli, Bengaluru North Taluk in the year 1979-80 and the subsequent transfers by the grantees.
6.4 The appellate Court, after referring to those grants and transfers mentioned therein, has concluded that the Special Deputy Commissioner has not referred to any grant in favour of Sri. Syed Anwar Mohammed as 14 asserted by the petitioner, and he has observed that the revenue records in favour of a certain Sri. Syed Anwar Mohammed are because of the purchase of 15 acres in the Sy. No.79 of Shettigere village, Jala Hobli, Bengaluru North Taluk from the original grantees/their successors-in-interest and the diversion of this extent of 15 acres at the instance of Sri. Syed Anwar Mohammed many years back.
6.5 The appellate Court referring to the decision of the Hon'ble Supreme Court in 'Seema Arshad Zaheer and Others v. Municipal Corporation of Greater Mumbai and Others' reported in [2006] 5 SCC 282 has opined that an appellate Court must interfere when it is shown that a trial Court, in exercise of its discretionary jurisdiction in granting temporary injunction, has acted arbitrarily or capriciously either because it has ignored the relevant documents or has relied upon material does 15 not support the exercise of the discretionary jurisdiction. It has further opined that the civil Court has erred in arriving at the conclusion that the petitioner has made out a case for grant of injunction, and it is discernible from the appellate Court's reasoning that it is persuaded to hold accordingly because the civil Court has not considered the circumstances discussed by it.
7. The submissions by Sri. C.H. Jadhav, learned senior Counsel for the petitioner:
7.1 The learned senior Counsel relying upon the order dated 25.02.2013 by the Special Deputy Commissioner, Bengaluru North [Additional] Taluk, Bengaluru District in RRT.2.CR2.2001-02 [which is also one of the documents relied upon by the appellate Court to opine that there is no reference to the grant in favour of the petitioner's father and that Sri. Syed Anwar 16 Mohammed has got the lands converted purchased by him] submits that the authority has in its operative portion concluded that though Sri. O.L. Rajendar and others, including the respondent, are entitled only for 21 acres 20 guntas in Sy. No.79 of Shettigere Village, Jala Hobli, Bengaluru North Taluk, but the revenue entries show their ownership for an extent of 27 acres 4 guntas and this discrepancy must be set aside.
7.2 The learned senior Counsel submits that the appellate Court could not have ignored this material finding in deciding on the respondent's contention that he is in possession of 1,33,398 sq. feet. There is prima facie material to indicate that the respondent and the others have the benefit of revenue records for extent much higher than their actual ownership. This finding also prima facie demonstrates that the appellate Court's reasoning that Sri. Syed Anwar Mohammed on 17 purchasing portions of lands in Sy. No.79 of Shettigere village, Jala Hobli, Bengaluru North Taluk has got them converted from agricultural purposes cannot be sustained.
7.3 The learned senior Counsel next submits that the Special Deputy Commissioner has also called upon the parties to appear before the jurisdictional Tahsildar on 12.03.2013 and produce their title documents while calling upon this authority to thereafter pass appropriate orders for correction in the revenue entries. The respondent does not contest that the proceedings initiated by the jurisdictional Tahsildar is not yet complete. Significantly, the respondent has commenced suit for permanent injunction in O.S. No.602/2008 but the respondent does not have the benefit of any interim order in such suit. These circumstances must also be considered in deciding on the prima facie case.18
7.4 The learned senior Counsel canvasses that the jurisdictional Police have registered FIR on 7.9.2021 in Crime No.102/2021 against the respondent's attorney, Sri. R. Dinesh, for offences punishable under Sections 379, 427, 447 and 506 of IPC on a complaint lodged by the petitioner. There is repeated effort by the respondent to forcibly enter possession of the subject property, and the registration of the aforesaid FIR is also a circumstance that demonstrates the same. The learned senior Counsel submits that even after this FIR in Crime No.102/2021, there is another effort to interfere and as such the petitioner's security have lodged information and such information is also registered as FIR in Crime No.105/2021 for the offences punishable under Scheduled Caste & Scheduled Tribe [Prevention of Atrocities] Act, 1989 and Sections 323 and 506 of the Indian Penal Code, 1860. The learned senior Counsel further emphasizes that the executive 19 Magistrate has initiated proceedings under Section 144 of the Code of Criminal Procedure, 1973.
7.5 The learned senior Counsel relying upon the aforesaid circumstances submits that the appellate Court has not considered material circumstances in opining that the petitioner has not made out a case for grant of temporary injunction. This Court must also interfere in the light of the present efforts by the respondent to disturb the possession and the subsequent initiation of proceedings including the proceedings under Section 144 of the Code of Criminal Procedure, 1973.
7.6 The learned senior Counsel urges that this Court must, in the least, direct both the petitioner and the respondent to maintain status quo with regard to the occupation and the nature of the subject property until the disposal of the suit and call upon the civil 20 Court to dispose of the suit expeditiously within a timeframe.
8. The submissions by Sri. G. Krishnamurthy, learned senior Counsel for the respondent:
8.1 The learned senior Counsel submits that the petitioner cannot dispute the respondent's possession or title to the property as described by the respondent in the written statement. The petitioner has not disputed the grant of 10 acres of land in Sy. No.79 of Shettigere village, Jala Hobli, Bengaluru North Taluk in favour of Sri. O. Siddalingeshwara and the subsequent transfer of 3 acres 20 guntas by him in favour of the respondent in the year 1994 under two registered sale deeds, or the conversion of this land from agricultural to non- agricultural - commercial purposes. The petitioner also does not dispute the mutation of the revenue entries for this property in favour of the respondent consequent to 21 the above sale deeds, and subsequent to diversion of this land from agricultural purposes as aforesaid with Doddajala Grama Panchayath in the year 2007. These transactions are much prior to the date of the suit.
8.2 The learned senior Counsel also emphasizes that even prior to the commencement of the suit, a portion of the respondent's property is acquired for widening of the National Highway, and the respondent has received compensation for the acquired extent way back in the year 2011. When it is undisputed that the respondent is asserting title and possession to the property which is bounded on the West by National Highway, the petitioner cannot even dispute the identity of the respondent's property, and unless he explains whether some portion of the property which he claims is acquired by the said authority for the road widening or not, the petitioner cannot assert that the respondent has not established the identity of the property or that 22 he has established the distinct identity of the subject property.
8.3 The learned senior Counsel emphasizes that the petitioner, who has filed application for temporary injunction which must be decided based on the affidavits, should place such material on record that would demonstrate his possession of the subject property. The petitioner relies upon an RTC contending that the entry is in favour of his father, but as observed by the appellate Court, this RTC, which is in the name of Sri. Syed Anwar Mohammed, refers to the land being converted for commercial purposes. This RTC does not support the petitioner's case and in fact demonstrates that the subject property is not put to any agricultural use which forms the foundation of the petitioner's case.
8.4 The learned senior Counsel submits that the respondent has produced documents not only to 23 establish title and possession as of now, but he is also able to trace his title and possession to one of the original grantees. On the contrary, the petitioner, who claims that his father was granted the subject property in the year 1978, has not explained the custody of the original. The documents presently relied upon by the petitioner to substantiate the grant in favour of his father are tenuous even on a cursory perusal.
8.5 The learned senior Counsel emphasizes on the following to bolster his submission that the documents relied upon by the petitioner in this regard are tenuous:
[i] The petitioner for the first time has produced a saguvali chit which is dated 14.05.1974 and the corresponding Official Memorandum which is dated 14.07.1978. This Official Memorandum is signed on 14.07.1978, but it refers to a Government Notification 24 dated 8.9.1980. If the Official Memorandum is signed on 14.07.1978, it cannot refer to a Notification much later in the month of September 1980;
[ii] The petitioner had approached this Court in the writ petition in W.P. No.6027/2021 with a prayer for direction to the authority to enter the revenue records for the subject property in his name. This writ petition is disposed of by this Court on 19.04.2021 calling upon the authorities to consider the petitioner's request in the light of the release deed dated 03.06.2016 and within a certain timeframe.
[iii] The jurisdictional Tahsildar, after this
Court's order, in the proceedings in
LND/JALA/CR/81/2021-22, which is disposed of on 30.09.2021, has rejected the petitioner's application in this regard. The Tahsildar, who would have the custody of all the records, has specifically opined that the 25 saguvali chit dated 14.05.1979 and the corresponding order relied upon by the petitioner are doubtful and cannot be relied upon.
8.6 The learned senior Counsel submits that the appellate Court's order is dated 13.12.2019 and the petition is filed in the month of January 2020 but the petitioner had not even complied with the office objections even as of the month of July 2021. However, in a sudden surge, has not got this petition listed but has also ensured that multiple proceedings are initiated against the respondent's attorney to ensure that the respondent is constrained and a semblance of case is established to persuade this Court to grant an order of temporary injunction.
8.7 The learned senior Counsel insofar as the legal propositions, submits that there is serious doubt over the petitioner's title and possession of the subject 26 property and in that event, he cannot succeed in a suit for permanent injunction and must necessarily file a suit for declaration of title and possession. The learned senior Counsel in support of this proposition relies upon the decision of the Hon'ble Supreme Court in 'Anathula Sudhakar v. P. Buchi Reddy [Dead] by LRs and others' reported in [2008] 4 SCC 594, and on the strength of this submission, he urges that if the suit itself is not maintainable, the application for temporary injunction cannot be considered. In this regard, reliance is placed on 'Cotton Corporation of India Limited v. United Industrial Bank Limited and Others' reported in [1983] 4 SCC 625.
8.8 Lastly, the learned senior Counsel canvasses that it would be indisputable that in the present case the petitioner, the plaintiff, in relying upon a dubious set of papers and suppressing material facts, has not approached the Court with clean hands and therefore 27 he is not entitled for injunction. In this regard, reliance is placed upon 'Seema Arshad Zaheer and Others v. Municipal Corporation of Greater Mumbai and Others' reported in [2006] 5 SCC 282.
9. In the light of the rival submissions as aforesaid, the question for consideration is:
Whether the petitioner has made out a case for interference with the appellate court's impugned order.
10. The appellate Court has interfered with the civil Court's order in dissolving the order for temporary injunction observing that the petitioner has not produced the original Grant Certificate and the petitioner has also not produced any document to establish the identity of the suit schedule property other than the relinquishment deed dated 3.6.2016 which is only amongst the petitioner's family members. The appellate Court has further observed that the petitioner 28 relies upon RTC for the year 1997-2002 to establish possession and support his contention that the subject property is an agricultural land but the entry in this RTC shows that the land is diverted from agricultural to non-agricultural purposes and this corroborates the respondents' defense.
11. Sri. C H Jadhav is unable to persuade this Court to opine that the appellate Court has erred in considering this facet, or the fact that the petitioner to establish the identity of the property claimed by him has not produced any document other than the relinquishment deed dated 3.6.2016 executed in his favour by his family members. Further, the petitioner's request for revenue entries for the subject property in his favour consequent to the relinquishment deed dated 3.6.2016 and based on a grant in favour of his father in the year 1978 has also not yielded any result inasmuch the jurisdictional Tahsildar has doubted the 29 genuineness of the grant records relied upon by the petitioner.
12. This Court has also considered the question whether the appellate Court has erred in pointing out that the petitioner should have produced original Grant Certificate in the light of the respondent's contentions as regards the genuineness of the document viz., the Official Memorandum which is signed on 14.7.2018 but refers to the Notification dated 8.9.1986, and this Court must opine that the appellate Court has not committed any irregularity in deciding the respondent's appeal opining that the petitioner, who seeks temporary injunction, should have placed the original grant certificate on record.
13. The Special Deputy Commissioner has indeed in its order dated 25.2.2013 referred to the revenue entries for 25 acres and has said that the title 30 deed is only for 21 acres, and this canvass on the first blush could suggest that the respondent is in possession of an extent beyond the title. But this argument cannot prevail at this point of time when the parties are yet to go to trial. Insofar as the commencement of the proceedings in the month of July 2021 and relied upon by Sri.C.H.Jhadav, the initiation of these proceedings must be examined in the background of the impugned order being in the month of December 2021, and though this petition is filed in the month of January 2020, no action is taken for getting the matter listed until the month of July 2020. This Court is of the considered view that when these circumstances are so considered, they cannot have any impact at this stage.
14. This Court must also observe that the respondent has placed on record concerned document to demonstrate the grant of property in favour of the 31 original owner, Sri.O.Siddalingaiah and the later documents including the documents to establish the acquisition and the receipt of compensation. It is undisputed that respondent has received compensation on acquisition of the land for road widening. The petitioner, who is enjoined in law in establishing prima facie case for trial based on possession, has not placed relevant material on record cannot overwhelm the respondent's case.
15. It is settled that this Court in exercise of its special jurisdiction under article 227 of the Constitution of India will interfere with the judicial orders only if such Court has acted without jurisdiction or has exercised jurisdiction vested in a manner that is perverse or irregular. And significantly it is also settled that this Court will not interfere merely because there is error of fact or error in law. A useful reference in this regard could be made to the decision of the Hon'ble 32 Supreme Court in Raj Kumar Bhatia v. Subhash Chander Bhatia reported in (2018) 2 SCC 87. This Court is not persuaded to opine that the appellate Court has erred in observing that the appellate Court has exercised its jurisdiction arbitrarily or capriciously.
Therefore the petition stands rejected.
Sd/-
JUDGE AN/-, nv