Shri. Ningappa S/O. Durgappa ... vs Somavva W/O. Hanumagouda ... on 12 June, 2019

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Karnataka High Court

Shri. Ningappa S/O. Durgappa ... vs Somavva W/O. Hanumagouda ... on 12 June, 2019

Bench: S.G. Pandit

        IN THE HIGH COURT OF KARNATAKA,
                DHARWAD BENCH

    DATED THIS THE 12 T H DAY OF JUNE, 2019

                     BEFORE

       THE HON'BLE MR.JUSTICE S.G. PANDIT

    WRIT PETI TION NO.104082/2018 (GM-CPC)

BETWEEN:

SHRI. NINGAPPA
S/O. DURGAPPA SHIDDAPPALAVAR.

1. SMT SHARADAVVA
   W/O. NINGAPPA SHIDDAPPALAVAR,
   AGE:74 YEARS, OCC:HOUSEHOLD WORK,
   R/O. GANGAPUR, TQ:RANEBENNUR,
   DIST:HAVERI.
                                       ...PETITIONER
(BY SRI.GIRISH V BHAT, ADVOCA TE)

AND:

SOMAVVA
W/O. HANUMAGOUDA SIDDAPPALAVAR,
AGE:66 YEARS, OCC:HOUSEHOLD WORK,
R/O. GANGAPUR, TQ:RANEBENNUR,
DIST:HAVERI.
                                      ...RESPONDENT
(BY SRI.M.H .PA TIL, ADVOCA TE FOR C/R)

     THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITU TION OF INDIA PRAYING
TO QUASH THE ORDER ON I.A.NO .V DATED 18.04.2016
PASSED BY THE PRL. CIVIL JU DGE AND JMFC,
RANEBENNU R IN O.S.NO.396/2013 VIDE ANNEXURE- E
AND ALLOW THE I.A.NO.5 F ILED BY THE PETITIONER
AND ETC.
                            2


     THIS    WRIT     PETITION        COMING     ON       FOR
PRELIMINARY HEA RING THIS DAY, THE COURT MADE
THE FOLLOWING:

                        ORDER

The petitioner is before this Court assailing the order dated 18.04.2016 passed on I.A.No.5 in O.S.No.396/2013 on the file of the II Additional Civil Judge and II JMFC, Ranebennur and order dated 26.04.2018 in M.A.No.8/2016 on the file of the Prl. Senior Civil Judge and JMFC, Ranebennur, whereby the application filed under Order 39 Rule 1 and 2 of CPC was dismissed and confirmed respectively.

2. The petitioner is the plaintiff and the respondent is defendant in O.S.No.396/2013 filed for declaration and injunction in respect of the suit schedule Survey No.12 measuring 2 guntas.

3. The learned counsel for the plaintiff/petitioner herein submits that the said survey number No.12 in respect of 2 guntas has been assigned panchayat property number as 124, 125 and 221. It is the case of the petitioner that totally 9 acres 5 guntas belong to Uttaradhi Math and the said land was granted to various villagers in which the petitioner was also allotted 2 guntas of land of Uttaradhi Math. As the defendant is constructing building in property bearing panchayat No.125, the plaintiff/petitioner herein filed suit for declaration and injunction. Along with the suit the plaintiff/petitioner herein also filed an application under Order 39 Rule 1 and 2 of CPC praying to injunct the defendant from encroaching and constructing building over the suit schedule property. The defendant filed her objection denying the averments of the suit and 4 contended that she is constructing the house after obtaining license from the panchayat and plaintiff has no manner of right over panchayat property No.125.

4. The trial Court on examining the material on record has come to the conclusion that the defendant, who is in possession of VPC No.125 after obtaining the license has undertaken construction and property VPC No.125 is standing in the name of the defendant and the trial Court refused to grant injunction as sought by the plaintiff. It is also to be noted that except the RTC the plaintiff has not produced any piece of document to indicate her title over the property which she is claiming in the suit. The Appellate Court in the appeal filed by the plaintiff on examination of the records was of the view that the trial Court has rightly 5 passed order rejecting I.A.No.5 filed under Order 39 Rule 1 and 2 of CPC.

5. It is noted that the evidence in the suit has already begun and PW.1 has already led his evidence and he is already cross-examined by the defendant. The Appellate Court noting that the defendant has produced documents to indicate that she is the owner of VPC No.125 and has also produced building construction permission issued by the panchayat was of the view that the plaintiff/petitioner herein has not made out any prima facie case to grant injunction. The Courts below have rightly exercised discretion. The petitioner has not made out any ground to interfere with the concurrent findings of the Courts below. No ground is made out to interfere with the order 6 passed by the trial Court under Article 227 of the Constitution of India.

6. Accordingly, the writ petition is rejected.

SD JUDGE Sh

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