Quashed

Zilla Vokkaligara Sangha Shivamogga v. Nirmala. D. C.

Karnataka HC10 Dec 2021WP/2973/2019

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed a writ petition quashing an order granting a temporary injunction. The court held that the trial court erred in relying on revenue records under Section 133 of the Karnataka Land Revenue Act, 1964 without considering the petitioner's valid challenge and the subsequent administrative stay on boundary revision proceedings, violating the doctrine of clean hands.

What did the court decide?

The appellate court's order dated 17.12.2018 in M.A. No. 13/2018 is quashed.

Zilla Vokkaligara Sangha Shivamogga Vs Nirmala. D. C. — Landlord and Tenant | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF DECEMBER 2021

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BEFORE

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THE HON’BLE MR. JUSTICE B. M. SHYAM PRASAD

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WRIT PETITION NO.2973/2019 (GM-CPC)

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BETWEEN :

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ZILLA VOKKALIGARA SANGHA SHIVAMOGGA BY ITS SECRETARY N.A. MADESHA HEGDE S/O N.L. ANNAIAH HEGDE AGED ABOUT 62 YEARS ZILLA VOKKALIGARA SANGHA BALARAJ URS ROAD, SHIVAMOGGA 577201

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.... PETITIONER

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(BY SRI. P N HARISH, ADVOCATE)

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AND :

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NIRMALA. D. C. W/O D. CHANDRAKANTHA AGED ABOUT 53 YEARS RESIDENT OF 5^TH CROSS, 1^ST STAGE HOUSE NO.300, VINOBHANAGAR SHIVAMOGGA 5700201.

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... RESPONDENT

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(BY SMT. ASHA SHETTY, ADVOCATE AND SRI. ASHOK MESTO, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD 17.12.2018 IN M.A.NO.13/2018 PASSED BY II ADDITIONAL SENIOR CIVIL JUDGE, SHIVAMOGGA AS PER ANNEXURE-G AND ETC.

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN B GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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The petitioner, who is the defendant in O.S.No.437/2017 on the file of the III Additional Civil Judge and JMFC, Shivamogga (for short, ' the civil Court '), has impugned the order dated 17.12.2018 in Miscellaneous Appeal No.13/2018 on the file of the II Additional Senior Civil Judge, Shivamogga (for short, ' the appellate Court ').

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The learned counsel for the petitioner was heard on 12.08.2021 and the petition adjourned to extend another opportunity to the learned counsel for the respondent, who was absent. Sri. P.N.Harish, learned counsel for the petitioner is heard again for disposal as none appears for the respondent.

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The respondent has filed this suit in O.S.No.437/2017 for permanent injunction against the petitioner asserting possession of an extent of 2 acres in Sy.No.228 identified earlier as Revenue Block No.125 of Agasavalli Village, Kasaba Hobli, Shivamogga Taluk ( the subject property ). The respondent contends that the subject property is granted in favour of Sri. K. Venkataramana, who has transferred the same in favour of her vendor - Smt. CV.Shoba under the sale deed dated 09.08.2010, and she has purchased the subject property from her vendor under the sale deed dated 24.03.2016. The petitioner is trying to dispossess her and therefore, there is cause of action for the suit.

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The petitioner, on the other hand, has resisted the suit contending inter alia that the respondent is asserting possession in a portion of land bearing Sy.No.167 of Agasavalli Village, Kasaba Hobli, Shivamogga Taluk, which is a vast extent. The

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petitioner is in possession of over 25 acres in this survey number consequent to the grant of lease in its favour by the competent authority with the lease being renewed. The respondent asserts that the subject property is assigned new No.228 after durast and phodi proceedings, but the petitioner has challenged such durast and phodi before the competent authority in R.Misc No.3/2017-18. There is a stay of the durast and phodi proceedings. The respondent is aware of the same, but has suppressed the same.

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The civil Court has rejected the respondent's application for temporary injunction observing that the respondent had not produced any original document and the photo copies relied upon by the respondent do not indicate prima facie case for grant of temporary injunction. The respondent, who has impugned the civil Court’s order in the appeal in Miscellaneous Appeal

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No.13/2018, has produced original documents as also certain other revenue records.

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The appellate Court has interfered with the

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civil Court’s order granting temporary injunction in favour of the respondent restraining the petitioner from interfering with her possession of the subject property observing that the revenue records indicate that the subject property was originally granted to Sri.Venkataramana with definite boundaries and this portion is renumbered after necessary durast and phodi proceedings. The respondent, who has the benefit of revenue records, must have the advantage of presumptive value attached to those revenue records under Section 133 of the Karnataka Land Revenue Act, 1964. The appellate Court has concluded that when the records are so examined, it must opine that the respondent has established a prima facie case for grant of injunction.

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The learned counsel for the petitioner

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submits that the appellate Court should have seen that the respondent did not controvert the petitioner’s case that the petitioner had impugned the durast and phodi proceedings in a manner known to law before the competent authority and such challenge is pending consideration in R.Mis.No.3/2017-18; there is a stay of the durast and phodi proceedings relied upon by the respondent and that the respondent had not disclosed the same in the plaint. The learned counsel emphasizes that the respondent has not approached the civil Court with clean hands and on that score alone the respondent’s appeal should have been rejected.

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The learned counsel next contends that the respondent has placed on record the Tahsildar’s report in the appeal which is adverted to by the appellate Court. This report is categorical that way back in the year 1978, the petitioner is allotted a substantial chunk

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of land in Sy.No.167 of Agasavalli Village, Kasaba Hobli, Shivamogga Taluk and without noticing the grant of lease in favour of the petitioner, certain grants have been made resulting in overlapping. The Tahsildar has also observed that the lease in favour of the petitioner is renewed for a period of 30 years in the year 1993. The learned counsel relying upon these circumstances submits that the appellate Court could not have held that the respondent has established prima facie case for trial or that there must be a grant of injunction only because the provisions of Section 133 of the Karnataka Land Revenue Act, 1964 attaches presumptive value to the revenue records.

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Indeed, it is seen that the appellate Court though has elaborately referred to the Tahsildar’s report, but has not considered the same in deciding the question of prima facie case. If the material on record indicates an undisputed grant in favour of the petitioner

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with certain overlapping, the benefit of the presumption under Section 133 of the Karnataka Land Revenue Act 1964 could not have been extended especially, when the respondent did not contest the petitioner’s case that it had called in question the durast and phodi proceedings before the competent authority which had stayed such durast and phodi .

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Significantly, the appellate Court has not referred to the petitioner’s principal contention that the respondent has suppressed the initiation of the revenue proceedings in R.Mis.No.3/2017-18 and the grant of stay of the durast and phodi relied upon by the respondent. It is settled law that a party who seeks the equitable relief of temporary injunction must approach the Court with clean hands. If there is any suppression, and if that suppression is deliberate, the party guilty of suppression would violate the rule of equity and therefore, would not be entitled to temporary

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injunction. This Court must opine that the appellate Court has overlooked material circumstances and therefore, this Court must interfere with the appellate Court’s order. Hence, the following:

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ORDER

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The petition is allowed and the appellate Court’s order dated 17.12.2018 in Miscellaneous Appeal No.13/2018 on the file of the II Additional Senior Civil Judge, Shivamogga is quashed.

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SD/JUDGE

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Zilla Vokkaligara Sangha Shivamogga v. Nirmala. D. C.

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Zilla Vokkaligara Sangha Shivamogga v. Nirmala. D. C.

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