Karnataka High Court
Smt G.Eramma W/O. Late Shivanagouda vs Sri G.Dharamanagouda S/O. ... on 6 August, 2014
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 6TH DAY OF AUGUST 2014
BEFORE
THE HON'BLE MR. JUSTICE H.BILLAPPA
WRIT PETITION NOS.107107-107108/2014 (GM-CPC)
BETWEEN:
SMT.G.ERAMMA W/O.LATE SHIVANAGOUDA,
AGED ABOUT 67 YEARS, AGRICULTURIST,
R/O.: BANDRAL VILLAGE, SIRUGUPPA,
TQ. BELLARY, DIST-583121.
... PETITIONER
(BY SRI.GODE NAGARAJ, ADVOCATE)
AND:
SRI.G.DHARAMANAGOUDA
S/O.HANUMANAGOUDA,
AGED ABOUT 57 YEARS, AGRICULTURIST,
R/O.: BANDRAL VILLAGE, SIRUGUPPA,
TQ. BELLARY, DIST-583121.
... RESPONDENTS
(BY SRI.SHIVARAJ HIREMATH, ADVOCATE)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO QUASH THE IMPUGNED COMMON JUDGMENT DATED
01.07.2014 PASSED BY THE LEARNED II ADDL. SENIOR
CIVIL JUDGE, BELLARY IN MISC. APPEAL NO.64 AND
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65/2013, VIDE ANNEXURE-27 AND CONFIRM THE ORDER
ON I.A.NO.II AND I.A.NO.III DATED 02.07.2013 PASSED BY
THE LEARNED CIVIL JUDGE AND JMFC, SIRUGUPPA, IN
O.S.NO.86/2012N VIDE ANNEXURES-Z4 AND Z5.
THESE PETITIONS COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
In these writ petitions under articles 226and 227 of the Constitution of India, the petitioner has called in question the order dated 1.7.2014 passed by the appellate court in MA.Nos.64 & 65/2013 vide annexure-Z7.
2. By the impugned order at annexure-Z7, the appellate court has reversed the order passed by the trial court on IA.Nos.2 and 3 and has rejected I.A.No.2 filed by the petitioner for temporary injunction and has allowed I.A.No.3 filed by the respondent for temporary injunction in O.S.No.86/12.
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3. Aggrieved by that, the petitioner has filed this writ petition.
4. Briefly stated the facts are;
The petitioner has filed suit in O.S.No.86/12 for permanent injunction. In the said suit, the petitioner has filed I.A.No.2 for temporary injunction. The respondent has filed I.A.No.3 for temporary injunction. The trial court by its order dated 2.7.2013 has allowed IA.No.2 and has granted temporary injunction in favour of the petitioner. I.A.No.3 filed by the respondent has been rejected. Aggrieved by that, the respondent has filed M.A.Nos.64 and 65/2013. The appellate court by its order dated 1.7.2014 has reversed the order passed by the trial court on IA.Nos.2 and 3 and has rejected I.A.No.2 filed by the petitioner for temporary injunction and I.A.No.3 filed by the respondent has been allowed granting temporary injunction in favour of the respondent restraining the petitioner from interfering with the peaceful possession and enjoyment of the suit :4: property by the respondent. Aggrieved by that, the petitioner has filed this writ petition.
5. The learned Counsel for the petitioner contended that the impugned order passed by the appellate court cannot be sustained in law. He also submitted that the appellate court has failed to consider the material on record in proper perspective. Further he submitted that the revenue entries stand in the name of the petitioner and the petitioner has paid tax and she is the owner. Therefore, the appellate court was not justified in reversing the order passed by the trial court. Further he submitted that the petitioner has denied the sale agreement and it cannot be relied upon. The appellate court has erred while reversing the order passed by the trial court without any valid reason. Unless the order was perverse or capricious the appellate court should not have interfered with the order passed by the trail court. Therefore, the impugned order passed by :5: the appellate court cannot be sustained in law. He placed reliance on the following decisions:
1. 2002 (3) KCCR SN 212
2. 2010 (3) Kar.LJ. 320
3. ILR 2004 KAR 3079
6. As against this, the learned counsel for the respondent submitted that the impugned order does not call for interference. He also submitted that the petitioner has filed suit for permanent injunction claiming that she is in possession of the suit property. In fact, the suit property has been agreed to be sold in favour of the respondent by the husband of the petitioner and the respondent was put in possession of the suit property by virtue of the sale agreement dated 21.05.1999. The respondent is in possession and enjoyment of the suit property by virtue of the sale agreement dated 21.05.1999. The sale agreement is signed by the petitioner's husband and also her children. The recitals of the sale agreement show that the possession :6: was delivered to the respondent on the date of sale agreement itself. In fact, the respondent has filed suit in O.S.No.97/2012 for specific performance and there is an injunction restraining the petitioner from alienating the suit property. The trial Court has failed to consider the sale agreement in proper perspective. The appellate Court taking into consideration that by virtue of the sale agreement the respondent has been put in possession and the entire sale consideration amount has been paid has reversed the order passed by the trial Court. Therefore, the impugned order passed by the appellate Court does not call for interference.
7. I have carefully considered the submissions made by the learned counsel for the parties.
8. The point that arise for my consideration is • Whether the impugned order passed by the appellate Court in M.A.Nos.64 and 65/2013 calls for interference?
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9. It is relevant to note, the suit in O.S.No.86/2012 has been filed by the petitioner for permanent injunction. In the said suit, the petitioner has filed I.A.No.II for temporary injunction. The respondent has filed I.A.No.III for temporary injunction. The trial Court by its order dated 02.07.2013 has allowed I.A.No.II and has granted temporary injunction in favour of the petitioner. I.A.No.III filed by the respondent has been rejected. Aggrieved by that, the respondent has preferred an appeal in M.A.Nos.64 and 65/2013. The appellate Court by its order dated 01.07.2014 has reversed the order passed by the trial Court and has granted the injunction in favour of the respondent. The petitioner contends that she is in possession and enjoyment of the suit property. She relies upon the RTC entries and tax paid receipts. No doubt, the RTC entries show the name of the petitioner in Column No.9 as well as in Column No.12 also. The respondent contends that the husband of the petitioner has executed the sale agreement :8: dated 21.05.1999 and the entire sale consideration amount of Rs.1,10,000/- has been paid and possession was delivered on the date of sale agreement itself. Perusal of the sale agreement dated 21.05.1999 prima-facie shows that the husband of the petitioner has received the entire sale consideration amount and possession has been delivered. The children of the petitioner also have signed the sale agreement as consenting witnesses. No doubt, the petitioner contends that the sale agreement is not executed and it is a fabricated document. That is a matter to be considered while considering the matter on merits. At this stage, prima facie, the sale agreement shows that the petitioner's husband has executed the sale agreement dated 21.05.1999 and the entire sale consideration amount of Rs.1,10,000/- has been paid and on the date of sale agreement possession has been delivered. The children of the petitioner have also signed the sale agreement as consenting witnesses. It is only the petitioner who has filed :9: the suit for permanent injunction. There is no valid reason at this stage to ignore the sale agreement from consideration. No doubt the decisions relied upon by the learned counsel for the petitioner support the contention that the sale agreement is dated 21.05.1999 and the suit is filed in the year 2012 and except the sale agreement no other documents are produced to show the possession. In the circumstances of the case, i.e., the sale agreement prima facie shows that the entire consideration amount of Rs.1,10,000/- has been paid, possession has been delivered on the date of sale agreement and all the children have signed as consenting witnesses, the balance of convenience tilts in favour of the respondent. Therefore, the impugned order passed by the appellate Court granting injunction in favour of the respondent is justified in law. While it is true, the appellate Court should be slow in interfering with the order passed by the trial Court, but if the order is perverse and ignoring vital documents, the appellate Court can : 10 : always interfere with the order passed by the trial Court. Therefore, the impugned order passed by the appellate Court does not call for interference.
Accordingly, the writ petitions are dismissed.
Sd/-
JUDGE SUB/Vnp*