Karnataka High Court
Mahantgouda vs Khajabee & Ors on 13 December, 2018
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 13TH DAY OF DECEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE P.G.M.PATIL
MFA NO. 201391/2018 (CPC)
&
MFA NO.201392/2018 (CPC)
MFA NO.201391/2018:
BETWEEN:
Mahantgouda S/o Mallangouda Patil
Age:47 years, Occ: Agriculture,
R/o Bayyapur, Tq. Lingasugur,
Dist. Raichur.
... Appellant
(By Sri Srivatsa, Senior Counsel appearing
for Sri Huleppa Heroor, Advocate)
AND:
1. Khajabee W/o Allabaksha Dongri,
Age:44 years, Occ: Household,
R/o Venkatrayan Pet,
Near Huccha Kashim Fira Dharga,
Mudgal, Tq. Lingasugur,
Dist. Raichur-584101.
2. Shamidbegum W/o Mahiboob Pashya
Guttedar, age:33 years, Occ:Household,
2
R/o Killa, Hussainialam,
Near Huccha Kashim Fira Dharga,
Mudgal, Tq. Lingasugur,
Dist. Raichur-584101.
3. Rajesab S/o Syamidsab Dongri,
Age:55 years, Occ: Agri.
R/o Venkatrayan Pet,
Near Huccha Kashim Fira Dharga,
Mudgal, Tq. Lingasugur,
Dist. Raichur-584101.
4. Mahiboobsab S/o Syamidsab Dongri,
Age:53 years, Occ: Agri.
R/o Venkatrayan Pet,
Near Huccha Kashim Fira Dharga,
Mudgal, Tq. Lingasugur,
Dist. Raichur-584101.
5. Hussainsab S/o Syamidsab Dongri
Age:51 years, Occ: Agri.
R/o Venkatrayan Pet,
Near Huccha Kashim Fira Dharga,
Mudgal, Tq. Lingasugur,
Dist. Raichur-584101.
6. Dulisab S/o Syamidsab Dongri,
Age:35 years, Occ: Agri.
R/o Venkatrayan Pet,
Near Huccha Kashim Fira Dharga,
Mudgal, Tq. Lingasugur,
Dist. Raichur-584101.
... Respondents
(Sri Subhash Mallapur, Advocate for R3)
(Respondent Nos.1,2,4,5 & 6 are served )
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This MFA filed under Order 43 Rule 1 (r) of the
Civil Procedure Code praying to set aside the impugned
order dated 11.07.2018 passed by the learned Senior
Civil Judge & JMFC, Lingasugur in OS No.02/2018 on
IA No.IV and consequently allow the application filed by
the appellant.
MFA NO.201392/2018:
BETWEEN:
Mahantgouda S/o Mallangouda Patil
Age:47 years, Occ: Agriculture,
R/o Bayyapur, Tq. Lingasugur,
Dist. Raichur.
... Appellant
(By Sri Srivatsa, Senior Counsel appearing
for Sri Huleppa Heroor, Advocate)
AND:
1. Khajabee W/o Allabaksha Dongri,
Age:44 years, Occ: Household,
R/o Venkatrayan Pet,
Near Huccha Kashim Fira Dharga,
Mudgal, Tq. Lingasugur,
Dist. Raichur-584101.
2. Shamidbegum W/o Mahiboob Pashya
Guttedar, age:33 years, Occ:Household,
R/o Killa, Hussainialam,
Near Asurkhana, Mudgal,
Tq. Lingasugur, Dist. Raichur-584101.
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3. Rajesab S/o Syamidsab Dongri,
Age:55 years, Occ: Agri.
R/o Venkatrayn Pet,
Near Huccha Kashim Fira Dharga,
Mudgal, Tq. Lingasugur,
Dist. Raichur-584101.
4. Mahiboobsab S/o Syamidsab Dongri,
Age:53 years, Occ: Agri.
R/o Venkatrayan Pet,
Near Huccha Kashim Fira Dharga,
Mudgal, Tq. Lingasugur,
Dist. Raichur-584101.
5. Hussainsab S/o Syamidsab Dongri
Age:51 years, Occ: Agri.
R/o Venkatrayan Pet,
Near Huccha Kashim Fira Dharga,
Mudgal, Tq. Lingasugur,
Dist. Raichur-584101.
6. Dulisab S/o Syamidsab Dongri,
Age:35 years, Occ: Agri.
R/o Venkatrayan Pet,
Near Huccha Kashim Fira Dharga,
Mudgal, Tq. Lingasugur,
Dist. Raichur-584101.
... Respondents
(Sri Shivanand Patil, Advocate for R1 & R2
(Sri Subhash Mallapur, Advocate for R3)
(Sri Sandeep Vijaykumar, Adv. For R4 to R6)
This MFA filed under Order 43 Rule 1 (r) of the
Civil Procedure Code praying to set aside the impugned
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order dated 11.07.2018 passed by the learned Senior
Civil Judge & JMFC, Lingasugur in OS No.02/2018 on
IA No.II and consequently reject the application filed by
the respondents No.1 and 2.
These appeals having been heard on 03.12.2018
and reserved for judgment and coming on for
pronouncement of judgment this day, the Court
delivered the following:
JUDGMENT
These two appeals are directed against common orders on IA Nos.2 and 4 passed by the Senior Civil Judge and JMFC, Lingasugur in OS No.2/2018 on 11.07.2018.
2. For the sake of convenience, the parties will be referred with their ranks held before the trial Court.
3. The brief facts leading to these appeals are that; the plaintiff Nos.1 and 2 filed the said suit before the trial Court against the defendant Nos.1 to 5 for the 6 relief of partition and separate possession of their share in the suit properties by meets and bounds. In pursuance of the summons, the defendants appeared in the said suit and filed their written statement.
4. It is the case of the plaintiffs that themselves and defendant Nos.1 to 4 are tenants in common in respect of suit schedule properties viz., old RS No.618, new RS No.707/1 measuring 2 acres and RS No.707/2 measuring 2 acres situated in Mudgal village, Lingasugur taluka of Raichur district. Since the parties are Muslims, they claim that they are the tenants in common of the suit properties. The plaintiffs claim 1/10th share each in the said properties.
5. Defendant No.5 who does not belongs to the family of the plaintiffs and defendant Nos.1 to 4 filed the written statement denying the claim of the plaintiffs. Further he contended that the boundaries of the suit properties are not correct and that, towards north of the 7 suit property Sy.No.716 is situated and he has purchased the said property. The plaintiffs have no right, title and interest in the said property. But they are interfering in his possession and enjoyment of the said property. He has been in possession and enjoyment of the said property and also survey No.707/2 under registered agreement of sale. Therefore, defendant No.5 also filed his counter claim seeking a decree for permanent injunction against the plaintiffs and defendants No.1 to 4 restraining them from interfering into his peaceful possession and enjoyment of survey No.716.
6. In the course of proceedings, plaintiffs filed IA No.2 under Order 39 Rules 1 and 2 of CPC against defendant No.5 seeking an order of temporary injunction restraining him from interfering with their possession in the suit schedule property. They contended that defendant No.5 is not concerned to the 8 family of the plaintiffs, he is having political and Police power. He intends to start quarry business in the suit properties. Therefore, they sought for an order of temporary injunction against the defendant No.5.
7. Defendant No.5 also filed IA No.4 under Order 39 Rules 1 and 2 of CPC seeking an order of temporary injunction against plaintiffs and defendant Nos.1 to 4 for restraining them from interfering in the portion of suit property RS No.707/2 and also adjoining land bearing Sy.No.716 till disposal of the suit.
8. Plaintiffs and defendant No.5 filed objections on the respective applications. The learned Senior Civil Judge after hearing both the counsels on IA Nos.2 and 4 passed common order by which IA No.2 was allowed, thereby defendant No.5 was restrained from digging or carrying out any granite mining operation over the suit lands till disposal of the suit and IA No.4 filed by the 9 defendant No.5 under Order 39 Rules 1 and 2 of CPC was dismissed.
9. Defendant No.5 being aggrieved by the impugned order has filed these two appeals. One against the order on IA No.2 and another against the order on IA No.4.
10. Though the matters were at the stage of orders, with the consent of counsel for the parties, they were heard on main matter and taken up for final disposal.
11. Learned counsel for the appellant-defendant No.5 submitted that the learned Senior Civil Judge has not considered the counter claim made by the defendant No.5 in his written statement and as such, he has come to the erroneous conclusion that his application seeking temporary injunction against the plaintiffs is not maintainable. In this regard, learned Senior Civil Judge 10 relied on the decision reported in ILR 1993 Karnataka 161 Veerbhadrappa Vs. Mayappa and also Full Bench decision reported in 2014 (4) KCCR 3113 Shakuntalamma Vs. Kantamma. Under these circumstances, the learned counsel for the appellant submitted that IA-4 filed by defendant No.5 deserves to be allowed insofar as the schedule property in Sy.No.716 is concerned.
12. Per contra, the learned counsel for the respondents-plaintiffs submitted that defendant No.5 has no right, title or interest in the suit properties viz., Sy.No.707/1 and 707/2 and that claim of the defendant No.5 is that he is in possession of part of survey No.707/2 is not correct. The learned counsel further submitted that the plaintiffs are not claiming any right, title and interest in Sy.No.716 claimed by defendant No.5.
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13. As could be seen from the impugned order, the plaintiffs have filed the said suit for partition and separate possession of their 1/10th share each in the suit properties viz., Sy.No.707/1 and 707/2 each measuring 2 acres situated in Mudgal village of Lingasugur taluka. Since there was a threat by defendant No.5 of conducting quarry operations in these properties, the plaintiffs were constrained to file IA No.2 seeking an order of temporary injunction against defendant No.5. On the other hand, defendant No.5 filed his written statement together with his counter claim seeking a decree for permanent injunction against plaintiffs and defendants No1 to 4 in respect of survey No.716. Defendant No.5 has not described the boundaries of the said property. The plaintiffs have described the common boundaries of both survey Nos.707/1 and 707/2 and they have shown the northern boundary as Government land. Defendant No.5 is contending that on the northern side of suit 12 properties, his survey No.716 is situated and that he is in possession and enjoyment of the said property. It is a matter to be established in the course of trial in the suit.
14. The learned Senior Civil Judge on the basis of the affidavit and documents produced by the plaintiffs found that defendant No.5 has no interest in the suit survey numbers and that the plaintiffs have made out a prima facie case of their lawful possession and enjoyment in respect of the suit properties and that the balance of convenience lies in their favour and in case an order of temporary injunction is not granted, the plaintiffs would be put to irreparable loss or injury. The plaintiffs alleged that there is a threat of carrying out granite mining operations in the suit lands by defendant No.5. In that way of the matter, the learned Senior Civil Judge came to the conclusion that the plaintiffs are entitled for an order of temporary 13 injunction against defendant No.5 as prayed for in IA No.2.
15. The learned Senior Civil Judge while referring to Order 39 Rule (1)(a)(2)(1)(c) of CPC has come to the conclusion that defendant can maintain an application under Order 39 Rule 1(a) of CPC and he cannot maintain an application under Order 39 Rule 1(b) of CPC. In that way of the matter, it is the plaintiffs who can seek temporary injunction under these provisions when there is a threat by the defendants. In this regard, the learned Senior Civil Judge has relied on the above referred decisions.
16. It is not in dispute that in the suit filed by the plaintiffs, the defendant/s can maintain an application under Order 39 Rule 1(a) of CPC only and he cannot maintain an application under Order 39 Rule 1(b) (c) of CPC. The learned Senior Civil Judge has not at all considered the fact that defendant No.5 has filed 14 written statement along with his counter claim seeking a decree of permanent injunction against plaintiffs and defendant Nos.1 to 4 in respect of Sy.No.716 and he has also paid court fee of Rs.25/- on this relief. The provisions of Order 8 Rule 6-A (1) to (4) CPC are material in this regard. Order 8 Rule 6-A of CPC provides for filing counter claim by the defendants. Order 8 Rule 6-A (2) (3) (4) reads as follows;
" 6-A (2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim.
(3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the Court.
(4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints."15
17. Therefore, whenever a counter claim is raised, it shall be treated as a plaint and governed by the Rules applicable to plaint and as such, the counter claim made by defendant No.5 has to be treated as plaint as against the plaintiffs and the plaintiffs are at liberty to file written statement in answer to the counter claim of the defendant No.5. It appears from the record that the plaintiffs have not yet filed any written statement in answer to the counter claim of defendant No.5. In view of Order 8 Rule 6 (4) of CPC since the counter claim of defendant No.5 shall be treated as plaint against the plaintiffs in the present case, the defendant No.5 can very well maintain an application under Order 39 Rules 1 and 2 of CPC as if in a suit. Therefore, the finding recorded by the court below on IA No.4 filed by the defendant No.5 under Order 39 Rules 1 and 2 of CPC is not maintainable cannot be accepted. 16
18. In the course of argument, learned counsel for the appellant-defendant NO.5 submitted that, defendant No.5 is not claiming any interest in Sy.Nos.707/1 and 707/2 which are the suit properties of the plaintiffs and at the same time, the plaintiffs are also not claiming any interest in Sy.No.716 claimed by defendant No.5. The learned counsel for the respondents-plaintiffs also submitted that the plaintiffs are not claiming any interest in survey No.716 which is subject matter of the counter claim of defendant No.5. Under these circumstances, this Court has to hold that the orders passed on IA No.2 filed by the plaintiffs restraining defendant No.5 from digging or carrying out mining operations over the suit lands viz., Sy.No.707/1 and 707/2 of Mudgal village needs to be affirmed with the clarification that the order of temporary injunction passed on IA No.2 does not pertain to survey No.716 of Mudgal village which is not the suit property. At the same time, admittedly, the plaintiffs are not claiming 17 any right, title or interest in survey No.716 of Mudgal village in respect of which the defendant No.5 has filed counter claim for a decree of permanent injunction against plaintiffs and defendant Nos.1 to 4. Since the plaintiffs are not claiming any interest in this property and defendant No.5 has alleged that plaintiffs are interfering in his possession and carrying out quarry operations in survey No.716 has to be considered and accordingly, the plaintiffs have to be restrained by way of temporary injunction from interfering with peaceful possession and enjoyment of defendant No.5 over the land survey No.716 till disposal of the suit in view of the counter claim filed by defendant No.5.
19. Accordingly, MFA No.201391/2018 is allowed. The order dated 11.07.2018 passed on IA No.4 in OS No.2/2018 is set aside. Consequently, the application/IA No.4 filed by the appellant-defendant No.5 under Order 39 Rules 1 and 2 of CPC is allowed. 18 The plaintiff Nos.1 and 2 and defendant Nos.1 to 4 or anybody claiming under them are restrained from interfering in the peaceful possession, enjoyment and from carrying out granite mining operations by defendant No.5 in Sy.No.716 of Mudgal village of Lingasugur taluka till disposal of suit.
20. MFA No.201392/2018 is hereby dismissed with a clarification that the order of temporary injunction granted as per IA No.2 does not pertains to survey No.716 of Mudgal village of Lingasugur taluka.
Sd/-
JUDGE NSP