Karnataka High Court
Sri K P Jayakumar vs Sri Kenchegowda on 23 June, 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF JUNE 2022
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
WRIT PETITION NO.24871 OF 2018 (GM-CPC)
BETWEEN:
1 . SRI K. P. JAYAKUMAR
S/O PUTTASWAMYGOWDA,
AGED ABOUT 44 YEARS
2 . SRI K. P. ANANDA
S/O PUTTASWAMYGOWDA,
AGED ABOUT 36 YEARS
BOTH ARE R/T
KILANKOPPALU VILLAGE,
BUKINAKERE HOBLI,
K.R.PET TALUK,
MANDYA DISTRICT - 571 426.
...PETITIONERS
(BY SRI. RAVISHA M G, ADVOCATE)
AND:
1 . SRI. KENCHEGOWDA
S/O HOMBEGOWDA,
AGED ABOUT 64 YEARS
2 . SMT. NAGAMMA
2
W/O KENCHEGOWDA,
AGED ABOUT 54 YEARS
3 . SRI. RAGAVENDRA
S/O KENCHEGOWDA,
AGED ABOUT 30 YEARS
ALL ARE R/AT
KILANKOPPALU VILLAGE,
BUKINAKERE HOBLI,
K.R.PET TALUK,
MANDYA DISTRICT - 571 426.
....RESPONDENTS
(BY SRI. ABHINAY Y.T., ADVOCATE FOR
SRI. BYREGOWDA N, ADVOCATE FOR R1 TO R3)
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THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER DATED 6.4.2018 PASSED BY THE HON'BLE
SENIOR CIVIL JUDGE AND JMFC, K.R. PET., IN M.A.
10/2015 VIDE ANNEX-A AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
3
ORDER
The petitioners/plaintiffs aggrieved by the order dated 6.4.2018 passed in MA No.10/2015 by the Senior Civil Judge, JMFC, K.R.Pet have filed the present writ petition.
2. Brief facts leading rise to filing of this petition are as under:
The petitioners filed a suit for permanent injunction in respect of the suit schedule property.
Respondents filed written statement denying the averments made in the plaint. The petitioners filed an application I.A.1 seeking an order of temporary injunction restraining the respondents from interfering with the peaceful possession and enjoyment over the suit schedule property till the disposal of the suit. The said application was opposed by the respondents by filing objections. The Trial Court after considering the 4 material on record allowed the application filed by the petitioners and restrained the respondents from interfering with the petitioners peaceful possession and enjoyment over the suit schedule property till the disposal of the suit. The respondents aggrieved by the order on I.A.1 filed an appeal in M.A.10/2015.
The Appellate Court allowed the appeal and set aside the order passed by the Trial Court and consequently rejected the application-I.A.1. Hence, this writ petition.
3. Heard learned counsel for petitioners and learned counsel for respondents.
4. Learned counsel for the petitioners submits that the Appellate Court without considering the material placed on record has proceeded to pass the impugned order. He also further submits that the observations made by the Appellate Court, virtually 5 amounts to deciding the matter finally. He further submits that the petitioners have produced copy of the order passed in the revision petition filed by respondent No.1. The Appellate Court without considering the said document has proceeded to pass the impugned order. He submits that the writ petition be allowed, the matter may be remitted to the Appellate Court to reconsider the appeal and pass appropriate order in accordance with law.
5. Per contra, learned counsel for the respondents fairly concedes that the writ petition be allowed and the matter be remitted to the Appellate Court to reconsider the appeal in accordance with law.
6. Perused the records and considered the submissions made by learned counsel for the parties.
7. The petitioners have filed a suit for injunction and filed an application seeking for an order of 6 temporary injunction. The petitioners have produced a copy of the order passed in the revision petition filed by respondent No.1. The Appellate Court without taking into consideration the documents produced by the parties has passed the impugned order. Further the Appellate Court has recorded a finding in paragraph No.15, which is extracted below :
"15. It is settled principle of law that when there is discrepancy between extent and boundaries in any sale deed, the boundaries would prevail. Even though the extent of the property purchased under sale deed dated 13.05.1959 is shown as 1.15 acre, while the area of the suit property is only 3 guntas. The boundaries of property purchased under the said sale deed and the boundaries of the suit property would tally, as rightly observed by the Trial Court. Even then, the trial Court lost sight of above said principle of law and proceeded to observe that since the extent of the suit property and the extent of the property purchased under the sale deed are 7 different, the defendants cannot succeed. Since the boundaries shown in the sale deed tally with the boundaries shown in the plaint schedule, it is clear that the suit property is nothing but the property purchased by the father of the defendant from the predecessors in title of the plaintiffs in the year 1959. It is also pertinent to note that even though Devamma W/o Mondegowda died long back, Puttaswamy Gowda S/o Kuntegowda and Devamma W/o Kuntegowda got their names mutated in revenue records recently in the year 2009-10. Moreover, even though there is a statutory presumption under section 133 of Karnataka Land Revenue Act regarding revenue entries in the name of plaintiffs, such presumption is not unrebuttable presumption. The production of sale deed of the year 1959 is sufficient to rebut such statutory presumption under Section 133 of Karnataka Land Revenue Act. The trial Court completely lost sight of the sale deed and the recitals therein and brushed aside the said sale deed on the flimsy ground that the extent of the property do not tally with the extent of the suit property. When there is transfer of title and possession of the suit 8 property under registered document of 1959, the claim of defendant cannot be disbelieved only on the ground that revenue entries are not effected on the basis of such sale deed. Hence, the claim of the plaintiff is doubtful. When the claim of the plaintiffs is doubtful, temporary injunction should not have been granted by the trial Court."
7.1 From a perusal of paragraph (15) supra, it is seen that the Appellate Court has recorded a finding that, 'if there is any discrepancy in the measurement and survey number, boundaries will prevail' The said finding will have an impact on the merits of the case. Hence, on these grounds, the impugned order is liable to be set aside.
8. In view of the above observation, the following order is passed :
ORDER
i) The writ petition is allowed;9
ii) The impugned order dated 6.4.2018 passed by the Appellate Court in M.A.No.10/2015 is set aside;
iii) The matter is remitted to the Appellate Court to reconsider the appeal afresh and pass appropriate order in accordance with law after considering the materials produced by both the parties.
iv) All the contentions of the parties are kept open.
v) It is made clear that this Court has not made adjudication on the merits in issue.
vi) The parties are directed to appear before the Appellate Court on 11th July 2022 without awaiting for further notice from the Appellate Court.
SD/-
JUDGE rs