Dismissed

Mohammed Hussain S/O Rajesaheb Warimani v. Smt.Zoharabi W/O Dastgirsab Mulla

Karnataka HC3 Jul 2020WP/107219/2019

Case brief

AI extract

What is this about?

A writ petition challenging a second appellate order that set aside a temporary injunction restraining the respondents from constructing on disputed land. The Court found the respondents had prior registered sale deed, constructed a house, and obtained utility connections, concluding the petitioner failed to show a prima facie case.

What did the court decide?

Writ petition stands dismissed without interfering with the order of the Principal Senior Civil Judge and CJM.

Mohammed Hussain S/O Rajesaheb Warimani Vs Smt.Zoharabi… — Property and Title | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 3^rd DAY OF JULY 2020

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BEFORE

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THE HON’BLE MR. JUSTICE S.G. PANDIT

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WRIT PETITION NO.107219/2019 (GM-CPC)

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BETWEEN

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MOHAMMED HUSSAIN S/O RAJESAHEB WARIMANI AGE:71 YEARS, OCC:RETIRED, R/O H.NO.10307/A, SHANEEN MANZIL, PANJIBABA MOHALLA, SHIVAJINAGAR, 5^TH CROSS, BELAGAVI.

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...PETITIONER

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(BY SRI. DEEPAK C MAGANUR, ADVOCATE)

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AND

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SMT. ZOHARABI W/O DASTGIRSAB MULLA AGE:69 YEARS, OCC:HOUSEHOLD, R/O EWS65, ASHOK NAGAR, BELAGAVI.

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SMT. RESHMA W/O IMAMSAB MOOSAMIYA AGE:53 YEARS, OCC:HOUSEHOLD, R/O EWS65, ASHOK NAGAR, BELAGAVI.

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...RESPONDENTS

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(BY SRI. MAHESH M JINDRALI & SRI. RAVI S BALIKAI, ADVS.)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 20.02.2019 IN MISC. APPEAL NO.10/2016 PASSED BY THE PRL. SENIOR CIVIL JUDGE & CJM, BELAGAVI VIDE ANNEXURE-G AND CONSEQUENTLY ALLOW IA NO.1 IN OS NO.1200/2015 FILED UNDER ORDER 39 RULE 1 AND 2 OF CPC VIDE ANNEXURE-B.

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THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, COURT MADE THE FOLLOWING:

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ORDER

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The petitioner is before this Court under Article

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227 of the Constitution of India challenging the order dated 20.02.2019 in MA No.10/2016 on the file of the Principal Senior Civil Judge and CJM, Belagavi.

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The petitioner is the plaintiff and the respondents are defendants 1 and 2 in OS

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No.1200/2015 on the file of the Civil Judge and JMFC, Belagavi. The plaintiff filed suit for perpetual injunction against the defendants to restrain them from interfering with peaceful possession and enjoyment of the suit property. It is stated that the plaintiff purchased Plot No.124/1 under registered Sale Deed dated 7.8.2007 from Asadkhan Co-operative Housing Society Ltd., Belagavi, which had formed layout. It is also stated that the plaintiff had also constructed the shed measuring 10’ x 10’ in the suit property. The plaintiff claims that

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he is in possession and enjoyment over the suit schedule property. The defendants claimed that they are the owner in possession of Plot No.124 having purchased the same under registered Sale Deed dated 16.6.2000 from Asadkhan Co-operative Housing Society, Belagavi. Along with the suit, the plaintiff filed an application under Order 39 Rules 1 and 2 of CPC praying for order of temporary injunction to restrain the defendants from interfering with the peaceful possession and enjoyment of the suit property. The trial Court by its order dated 16.12.2015 allowed the application and restrained the defendants from constructing any building and not to interfere with the suit property. Aggrieved by the said order of the trial Court, the defendants filed an appeal in MA No.10/2016 before the Principal Senior Civil Judge, Belagavi. The appellate Court under its judgment dated 20.02.2019 allowed the appeal and set-aside the order dated 16.12.2015 passed by the trial Court in OS

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No.1200/2015. Aggrieved by the said judgment in MA No.10/2016, the plaintiff is before this Court in this writ petition.

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Heard the learned counsel for the petitioner and learned counsel for the respondents. Perused the writ petition papers.

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Learned counsel for the petitioner would submit that the appellate Court committed an error in allowing the appeal without appreciating the reasons assigned by the trial Court to allow the application to restrain the defendants from construction. It is his submission that the plaintiff placed on record the Sale Deed, photographs and other documents to establish his possession over the suit schedule property and to show that he had already put-up shed in Plot No.124/1. The trial Court based on the material had rightly come to the conclusion that the plaintiff is in possession and hence, had restrained the defendants from not to construct any building and not to interfere with the

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peaceful possession of the plaintiff. The Appellate Court on a wrong appreciation of the material on record, allowed the appeal which requires to be set aside. It is his further submission that the Appellate Court has wrongly concluded that the petitioner has not produced layout plan and to come to the conclusion that plot bearing No.124/1 is not in existence. Further, it failed to appreciate the fact that the defendants had also not produced layout plan. Hence, he prays for allowing the appeal.

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Per contra, the learned counsel for the respondents/defendants would defend the judgment of the Appellate Court in setting aside the order dated 16.12.2015. Further, he submits that the defendants have constructed building in their plot bearing No.124 and to demonstrate the said construction, he submits that photographs have been produced along with the affidavit dated 22.06.2020. It is also his submission that the defendants have obtained electricity connection

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and water connection to the said building. He also places on record the property register extract for the year 2014-15 and receipt for having paid the property tax dated 20.06.2020. Further, the learned counsel invites attention of this Court to the portion of the Appellate Court order, wherein the Appellate Court on the material on record has come to the conclusion that the plot No.124/1 is not existing in the layout formed by Asadkhan Co-operative Housing Society Ltd., Belagavi. In that circumstances, he prays for dismissal of the writ petition.

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Having heard the learned counsels for the parties and on perusal of the material on record including the affidavit filed by the defendants today before the Court along with the documents, the only point which falls for consideration is whether the impugned order requires interference by this Court?

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The answer to the above point would be in the Negative for the following reasons:

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While considering an application filed under

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Order 39 Rules 1 and 2 of CPC, the Court will have to find out the prima facie case and balance of convenience and hardship one would suffer if the interim order of injunction is granted. While considering the application on going through the documents produced by the plaintiff as well as the defendants, the trial Court failed to appreciate the documents placed on record in its proper perspective. Admittedly, the defendants are prior purchasers of plot No.124 i.e. under registered sale deed dated 16.06.2000, whereas the plaintiff had purchased subsequently plot No.124/1 under registered sale deed dated 07.08.2007. Admittedly, it appears that there is dispute with regard to identification of the properties. However, today the defendants have filed an affidavit before this Court, wherein they state that they have already constructed house in plot No.124 and they have also made available photographs to show that the construction is

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completed. The defendants have also placed on record to show that electricity connection and water connection has been taken to the said house. The First Appellate Court even though has come to the conclusion that the plot No.124/1 is not existing, the same will have to be established in the trial. At this stage, it cannot be said that whether the property exists or not. The petitioner has failed to make out a prima facie case for grant of prayer made in the application. From the material placed on record by the defendants, I am of the view that the balance of convenience is in favour of the defendants. No ground is made out to interfere with the order of the Appellate Court. Accordingly, the writ petition stands dismissed.

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Sd/JUDGE

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JTR/sh

Mohammed Hussain S/O Rajesaheb Warimani v. Smt.Zoharabi W/O Dastgirsab Mulla

Case brief

What is this about?

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Mohammed Hussain S/O Rajesaheb Warimani v. Smt.Zoharabi W/O Dastgirsab Mulla

Case brief

What is this about?

What did the court decide?

What the court decided

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