Karnataka High Court
Neelamma vs Govindegowda on 18 June, 2020
Author: M.Nagaprasanna
Bench: M. Nagaprasanna
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JUNE, 2020
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.51876 OF 2019 (GM - CPC)
BETWEEN
NEELAMMA
W/O CHELUVAMURTHY,
AGED ABOUT 51 YEARS,
JODIMALLAPPANAHALLI VILLAGE,
KATTAYA HOBLI, HASSAN TALUK,
HASSAN DISTRICT - 573 120,
REPRESENTED BY GPA HOLDER.
SRI.G.N.SATHYANANDA KUMAR,
S/O.T.NAGARAJAIAH,
AGED ABOUT 43YEARS,
R/AT SANDYA NILAYA,
GAYATHRI LAYOUT,
NEAR RAGHAVENDR SAW MILL,
CHANNARAYAPATNA - 573 116.
... PETITIONER
(BY SRI. SRINIVAS V, ADVOCATE)
AND
GOVINDEGOWDA
S/O LATE RANGE GWODA,
AGED ABOUT 41 YEARS,
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R/AT SINGAPURA VILLAGE,
KASABA HOBLI - 573 211,
HOLENARSIPURA TALUK.
... RESPONDENT
(BY SRI.RAJARAM SOORYAMBAIL, ADVOCATE FOR
C/R)
THIS WRIT PETITION IS FILED UNDER ARTICLE
227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DATED 29.08.2019 PASSED IN
MA 05/2016 ON THE FILE OF SENIOR CIVIL JUDGE
AND JMFC AT HOLENARASIPURA VIDE ANNEXURE - E
TO THE W.P AND ORDER DATED 09.02.2016 PASSED
IN O.S.NO.282/2015 ON THE FILE OF CIVIL JUDGE
AND JMFC HOLENARASIPURA ON I.A.NO.III FILED
UNDER ORDER XXXIX RULES 1 AND 2 R/W 151 OF
CPC VIDE ANNEXURE - C TO THE W.P. AND
CONSEQUENTLY DISMISS THE APPLICATION FILED BY
THE RESPONDENT ETC.
THIS WRIT PETITION COMING ON FOR
PRELIMINARY HEARING THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
The subject writ petition is filed questioning the order of grant of temporary injunction under Order XXXIX Rules 1 and 2 read with Section 151 of Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC') dated 09.02.2016 passed against the writ petitioner- 3 defendant by the Court of Civil Judge and JMFC at Holenarasipura in O.S. No.282/2015 and the order dated 29.8.2019 passed in M.A. No.5/2016 by the Court of Senior Civil Judge and JMFC, Holenarasipura, dismissing the appeal filed against the order of grant of temporary injunction.
2. The respondent-plaintiff claims to be in possession of the suit property in Sy. No.19 to extent of 3 acres 06 guntas for the last 32 years. The respondent-plaintiff filed a suit before the trial Court in O.S. No.282/2015 for permanent injunction against the defendant and an Interlocutory Application in I.A.No.3 was filed under Order XXXIX Rules 1 and 2 read with Section 151 of CPC praying for temporary injunction restraining the defendant therein, the writ petitioner herein, from causing obstruction to the respondent-plaintiff's peaceful possessing and enjoyment of the suit properties.
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3. It was the claim of the respondent-plaintiff before the trial Court that he had filed an application before the Tahsildar, Holenarasipura, to grant the property that he was in possession of and the Tahsildar was yet to pass an order in his favour. It was also the contention of the respondent-plaintiff that the taxes to the Government was paid by him for the last 32 years.
4. The writ petitioner-defendant contended that there was an order of grant by the competent authority granting the suit properties in her favour. The Tahsildar issued a letter on 07.08.2004 stating that the plaintiff's father was in possession and enjoyment of the suit properties. The letter further observed that the writ petitioner-defendant was not in 5 possession and enjoyment of the suit properties. Though the writ petitioner-defendant had submitted record of rights, grant certificates but, prima facie, failed to prove that she was in enjoyment of the suit properties.
5. Considering this fact, the trial Court was of the view that the respondent-plaintiff cannot be dispossessed without due process of law and exercised its discretion noticing the balance of convenience was in favour of the respondent-plaintiff and allowed the application filed under Order XXXIX Rules 1 and 2 read with Section 151 of CPC and granted temporary injunction against the writ petitioner-defendant from causing obstruction to the plaintiff's peaceful possession and enjoyment of the suit properties till disposal of the case.
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6. The writ petitioner-defendant filed a Miscellaneous Appeal before the First Appellate Court in M.A. No.5/2016 which also came to be dismissed on 29.8.2019, clearly holding that the writ petitioner- defendant was not in possession of the granted land but had obtained grant certificates. Again on perusal of the material on record, the First Appellate Court found that the grant of temporary injunction by the trial Court was on a proper appreciation of facts and material produced on record and if the order of granting temporary injunction is set aside, great hardship and inconvenience would be caused to the plaintiff than the defendant who is not in possession of the suit properties.
7. I have heard Sri Srinivas V., learned Counsel appearing for writ petitioner.
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8. Learned Counsel for the writ petitioner- defendant reiterates that the writ petitioner is in possession of grant certificates and is the true owners of the suit properties. It is his contention that the grant certificates were given to the writ petitioner- defendant in the year 2004 and she is not able to evict the respondent-plaintiff. It is further contended that the writ petitioner is the land looser in the Hemavathi Reservoir Scheme and the Government had granted suit properties in her favour and the grant of temporary injunction by the trial Court in favour of the plaintiff-respondent was contrary to law. It is also his contention that the RTCs and other revenue documents are in favour of the writ petitioner-defendant and presumption in law is that they are in possession of the suit properties. 8
9. The trial Court, on considering the material available on record, has prima facie held that the respondent-plaintiff is in possession of the suit properties and the writ petitioner-defendant has grant certificates issued by the Government but are not in possession of the suit properties and dispossessing the respondent-plaintiff, at this length of time, would cause grave hardship. I find that the grant of temporary injunction in favour of the respondent- plaintiff and its affirmation by the first appellate Court does not warrant any interference.
The writ petition lacks merit and it is dismissed.
Sd/-
JUDGE Cs CT:MJ