Remanded

Jainabi v. Halappa

Karnataka HC6 Aug 2012RSA/545/2004

Case brief

AI extract

What is this about?

In a second appeal under CPC Section 100, the High Court held that the lower appellate court erred in granting permanent injunction without adjudicating disputed property identity and ownership allegations of fraud, remanding the matter to the trial court for proper inquiry and pleadings amendment.

What did the court decide?

The lower appellate order set aside; records remitted to the trial court for amendment of pleadings and disposal according to law; parties to maintain status quo.

Jainabi Vs Halappa — Partition | Karnataka HC (2012)

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

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Dated this the 6^th day of August, 2012

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Before

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THE HON’BLE MR JUSTICE HULUVADI G RAMESH

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Regular Second Appeal 545 / 2004

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Between:

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1 Smt Jainabi, 54 yrs W/o Wahab Khan

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2 Munna, 25 yrs S/o Wahab Khan

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Both are r/o Suresh Nagar (Jali Nagar) 2^nd Main, 4^th Cross, Davangere Appellants

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(By Sri V P Kulkarni, Adv.)

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And:

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1 Halappa – since dead by his LRs

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a Gangamma

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b Kumar Both are r/o Jali Nagar, II Main 3^rd Cross, Davangere

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2 City Municipality, Davangere By its Commissioner Respondents

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(By Sri B K Manjunath, Adv. For R2; Sri Pruthvi Wodeyar, Adv. For R1A)

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This Second Appeal is filed under S.100 of the C.PC praying to set aside the judgment dated 11.3.2004 in RA 39/1997 by the I Addl. Civil Judge (Sr.Dvn.), Davangere.

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This Second Appeal coming on for Hearing this day, the Court delivered the following:

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JUDGMENT

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Appeal is by the defendants challenging the judgment and decree passed by the I Addl. Civil Judge (Sr.Dvn.), Davangere in RA 39/1977 on 11.3.2004.

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Suit OS 1193/1993 was filed by the plaintiff Halappa for injunction claiming that site No.49 - corresponding Door No.1005 was allotted to him by the Davangere Town Municipality in the year 1972-73 for a sum of Rs.133.35 and since then, he has been in possession and has put up a hut on the land and the 2^nd defendant had also issued an endorsement and collected tax. It is alleged, the 1^st defendant in collusion with the 2^nd defendant, with the assistance of his henchmen, without right and title is causing interference to plaintiff's possession and enjoyment. The matter was contested denying the averments of the plaint and also regarding allotment, payment, etc. It is contended, rather the original defendant has concocted the document by impersonation and the suit is not maintainable for bare injunction without seeking for a declaration. Based on the

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pleadings, having raised as many as five issues for consideration, trial court dismissed the suit of the plaintiff. In the appeal against the said order before the Civil Judge (Sr.Dvn.) in RA 39/1997, the suit of the plaintiff has been decreed granting permanent injunction. As against this order, the second appeal is filed.

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At the time of admission, on 24.11.2004, the following substantial questions of law have been raised for consideration:

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Whether the lower appellate court is justified in reversing the judgment and decree passed by the trial court by misconstruing the documents on record and without giving proper finding as to the identity of the plaintiff in securing allotment to the Municipality;

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Whether the lower appellate court is justified in relying upon the sale certificate to come to the conclusion that the plaintiff is the owner of the property, when the contention of the Municipality is that the same has been obtained by playing fraud and misrepresentation.

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Heard the counsel representing the parties.

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It appears so far as the suit property is concerned, according to the defendants/appellants (legal representatives of the original defendant Wahab

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Khan) herein, it has been originally allotted to their vendor and in turn, they have purchased the same as such, they are bonafide purchasers from the allottee and rather by creating a document, plaintiff tried to usurp the right without seeking a declaration and also the lower appellate court has granted an injunction which is erroneous.

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Per contra, counsel for the respondent / plaintiff submitted, the property claimed by the 1^st defendant is different from the one claimed by him and there is no error in the order passed by the lower appellate court and accordingly, has sought for dismissal of the appeal.

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It appears, the identity of the property in the context was required to be adjudicated by the lower appellate court itself when a stand was taken by the plaintiff himself before it. In stead, it proceeded to grant an order of permanent injunction when the identity was in dispute. In the circumstances, the lower appellate court having misconstrued the documents, without verifying its genuineness and without going into the identity of the property at least for the purpose of granting permanent injunction, has decreed the suit of the plaintiff which is erroneous.

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However, to enable the plaintiff and the court below to ascertain as to whether the property in question belongs to the plaintiff or the defendanst as per their right and title over the property as per the records and also as to whether the consequential relief of injunction could be granted on the property when it is declared as belonging to the plaintiff or the defendant as the case may be, the matter has to be remanded to the court below. Further, if the plaintiff is able to prove that the property belonging to the defendants is different and what is claimed by him is different, then he would be entitled for a declaration and injunction . Further, on inquiry if it is held the property is the one and the same and if the original defendant is a prior purchaser from his vendor and if there is no authenticity as to the document claimed by the plaintiff, then he may have to lose his suit.

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While answering the substantial questions of law accordingly, the order of the lower appellate court is set aside. Matter is remitted to the trial court to enable the plaintiff to take a stand for amendment of the pleadings as well as the prayer, if so advised and for disposal of the matter according to law. All contentions are left open. Any observation made herein, cannot have any effect on the matter to be disposed of by the trial court on merit. Parties to maintain statusquo till the disposal of the matter by the trial court.

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Appeal is allowed. Send back the records. No costs

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Sd/Judge

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Jainabi v. Halappa

Case brief

What is this about?

What did the court decide?

Jainabi v. Halappa

Case brief

What is this about?

What did the court decide?

What the court decided

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