Karnataka High Court
Vaderappa vs Siddamma on 26 July, 2017
Author: B.Veerappa
Bench: B.Veerappa
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JULY, 2017
BEFORE
THE HON'BLE MR. JUSTICE B.VEERAPPA
WRIT PETITION No.31339/2017 (GM-CPC)
BETWEEN:
VADERAPPA
S/O CHINNAPPA
AGED ABOUT 55 YEARS
R/O KARIHATTY
DALAVAYAHALLY
MAJURE
CHITRADURGA TALUK-572501
... PETITIONER
(BY SRI SHASHIDHARA R, ADV.)
AND:
1. SIDDAMMA
W/O LATE AYYAPPA
AGED ABOUT 59 YEARS
2. SHIVAMMA
W/O LATE REVANASIDDAPPA
AGED ABOUT 30 YEARS
3. KUM. ASHWINI
D/O LATE REVANASIDDAPPA
AGED ABOUT 10 YEARS
MINOR REP. BY NATURAL
GUARDIAN MOTHER
PETITIONER NO.2
ALL ARE AGRICULTURIST
R/O KARIHATTY, DALAVAYHALLY
MAJURE,
CHITRADURGA TALUK-577501
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4. ESHWARAPPA
S/O CHINNAPPA
AGED ABOUT 55 YEARS
R/O KARIHATTY,
DALAVAYAHALLY
MAJURE
CHITRADURGA TALUK-577 501
5. ERAPPA S/O SANGAPPA
AGED ABOUT 62 YEARS
R/O JAMPAIAHNAHATTY
ANNEHAL
CHITRADURGA TALUK-577501
... RESPONDENTS
THIS PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, WITH A PRAYER TO QUASH THE
ORDER PASSED BY THE II ADDL. SR. CIVIL JUDGE AND JMFC AT
CHITRADURGA IN R.A.6/2017 ON I.A.-1 DATED 28.4.2017 VIDE
ANNEX-E.
THIS PETITION COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The second respondent before the Appellate Court has filed the present writ petition against the order dated 28.04.2017 passed on IA-I in RA No.6/2017 allowing the application filed by the appellants under Order 39 Rules 1 and 2 read with Section 151 of CPC restraining the defendants from dispossessing the plaintiffs from the 3 application schedule properties pending disposal of the appeal.
2. Respondents No.1 to 3 were the plaintiffs before the trial Court in O.S.No.196/2008 for declaration, partition and separate possession and permanent injunction contending that they are the owners in possession of the lands bearing Re.Sy.Nos.23/2 and 22/1 measuring 7 acres 35 guntas and 4 acres 10 guntas. The same was disputed by the defendants. At the inception of the suit, the trial Court granted temporary injunction restraining the defendants from dispossessing the plaintiffs in the year 2008. The said interim order was continued till the disposal of the suit on 28.10.2016.
3. After contest, the suit came to be dismissed by judgment and decree dated 28.10.2016. Aggrieved by the said judgment and decree, the plaintiffs have filed Regular Appeal No.6/2017 before the II Addl. Senior Civil Judge 4 & JMFC, Chitradurga and also filed application for temporary injunction contending that the trial Court after hearing both the parties has granted temporary injunction restraining the respondents from dispossessing the plaintiffs from item Nos.1 and 2 till the disposal of the suit. The said application was resisted by the defendants- respondents before the Lower Appellate Court contending that when the suit itself is dismissed holding that the plaintiffs are not in possession, the question of granting injunction does not arise. After hearing both the parties, the Lower Appellate Court exercising its discretion has allowed IA-I under Order 39 Rules 1 and 2 of Code of Civil Procedure and granted injunction. Hence, the present writ petition is filed.
4. I have heard Sri R.Shashidhara, learned counsel for the petitioner. He contends that the impugned order passed by the Lower Appellate Court granting temporary injunction is erroneous and contrary to the material on 5 record. He further contended that after contest the trial Court recorded a specific finding on issue No.2 that the plaintiffs are not in possession of the suit schedule properties and refused to grant permanent injunction. Therefore, the First Appellate Court ought not to have granted temporary injunction. He further contended that after contest the suit filed by the plaintiffs came to be dismissed on merits and as such the question of granting temporary injunction before the appellate Court does not arise. Therefore, he sought to quash the impugned order granting temporary injunction.
5. Having heard the learned counsel for the petitioner, it is undisputed fact that respondent Nos.1 to 3 filed suit for declaration, partition and separate possession contending that they are the owners and they are entitled to the relief sought for. The same was disputed by the defendants.
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6. It is also undisputed that during pendency of the suit, the trial Court after hearing both the parties has granted temporary injunction in the year 2008 and it was continued up to the date of disposal of the suit on 28.10.2016. Immediately, the plaintiffs filed an appeal in RA No.6/2017 before the II Addl. Senior Civil Judge, Chitradurga which was also accompanied with an application for temporary injunction and had taken a specific contention in the application that the trial Court during the pendency of the proceedings, after hearing both the parties granted temporary injunction restraining the defendants from dispossessing the plaintiffs in respect of item Nos.1 and 2 of the suit schedule properties. Considering the application and objections, the Lower Appellate Court exercising its discretion granted temporary injunction and recorded a specific finding which reads as hereunder:
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"7. On perusal of the trial court record reveals the names of plaintiffs and defendants finds in the RTC pertains to application schedule properties as on the date of said suit. Basing on the said revenue documents the trial court has granted interim order of temporary injunction against the defendants restraining them from dispossessing the plaintiffs from the applications schedule 1 and 2 properties pending disposal of the suit. The said temporary injunction continued pending disposal of the suit. As per the contention of the learned counsel for the appellants there are good grounds in favour of appellants to succeed in the appeal. If the plaintiffs dispossessed from the application schedule properties, they will be put to much hardship. On the other hand though the respondent No.2 by filing objections stated that, this application is belated one and the appellants have not sought for order in respect of all the suit properties is not sustainable for the reasons that, this application is filed along with the appeal.
8. On examination of prima facie material available in the trial court reveals the prima facie possession of plaintiffs over the application schedule properties. As rightly contended by the learned counsel for the appellants in the event of dispossessed the plaintiffs from the application 8 schedule properties, they will be put to much hardship. As such, the balance of convenience lies in favour of plaintiffs at this stage. Under such circumstance, this court comes to conclusion that, the defendants have to be restrained from dispossessing the plaintiffs from the application schedule properties pending disposal of the appeal. This, points 1 to 3 answered in the affirmative."
7. The material on record depicts that through out the pendency of the original suit, there was injunction operating against the defendants restraining them from dispossessing the plaintiffs from item Nos.1 and 2 properties and it was continued till the disposal of the suit in the year 2016. Now the plaintiffs filed an appeal against the judgment and decree dismissing the suit filed for declaration, partition and separate possession and injunction etc. The Regular Appeal is pending for adjudication before the II Addl. Senior Civil Judge & JMFC, Chitradurga. If the interim order operating from the inception till the disposal of the suit is not continued, 9 the defendants may dispossess the plaintiffs. Then the very purpose of filing the appeal will become futile. Therefore, the Lower Appellate Court was of the opinion that in the interest of justice, the interim order has to be granted and accordingly IA-I for temporary injunction is allowed. The same is in accordance with law. The petitioners have not made out any ground to interfere with the impugned order in exercise of powers under Article 227 of the Constitution of India. Accordingly, the writ petition is dismissed.
Sd/-
JUDGE akc/bms