Partly allowed

Shri. Syed Yakub Hussaini v. Shri. Badari Narayana S/O Shankar Rao Padaki

Karnataka HC13 Jun 2022WP/105265/2018

Case brief

AI extract

What is this about?

The court dismissed a petition seeking modification of a 1992 layout plan, citing third-party rights. Conversely, it quashed an appellate order reversing a stay injunction, directing the trial court to proceed with a recovery suit for possession.

What did the court decide?

W.P. No. 107761/2016 dismissed. W.P. No. 105265/2018 allowed, appellate order quashed, trial court order upheld.

Shri. Syed Yakub Hussaini Vs Shri. Badari Narayana S/O… — Landlord and Tenant | Karnataka HC (2022)

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WP No. 107761 of 2016 C/W WP No.105265 of 2018

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 13TH DAY OF JUNE, 2022

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BEFORE

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THE HON'BLE MR JUSTICE R.DEVDAS WRIT PETITION NO. 107761 OF 2016 (GM-RES)

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C/W

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WRIT PETITION NO. 105265 OF 2018 (GM-CPC)

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IN WRIT PETITION NO.107761/2016

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BETWEEN:

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SRI.BHADRINARAYAN SHANKARRAO PADAKI AGE: 62, OCC: AGRICULTURE, R/O: PADAKE LAYOUT, KOPPAL, DT: KOPPAL.

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SRI.VASANTHRAO SHANKARRAO PADAKI AGE: 56, OCC: AGRICULTURE, R/O: PADAKE LAYOUT, KOPPAL, DT: KOPPAL.

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…PETITIONERS

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(BY SRI. NEELENDRA.D.GUNDE, ADVOCATE)

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AND:

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THE DEPUTY COMMISSIONER KOPPAL.

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THE COMMISSIONER KOPPAL TOWN MUNICIPALITY, KOPPAL.

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Digitally signed byVINAYAKA B V VINAYAKA Location: B V Dharwad Date: 2022.06.15 10:09:34 +0530

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THE TASHILDAR, KOPPAL.

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THE REVENUE INSPECTOR/SURVEYOR, KOPPAL.

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SHRIPADRAO GOVINDRAO PADAKI AGE: MAJOR, OCCP: BUSINESS, R/O: DR.SIMPILINGANNA ROAD, KOPPAL, DT: KOPPAL

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WP No. 107761 of 2016 C/W WP No.105265 of 2018

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…RESPONDENTS

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(BY SRI. SHIVAPRABHU S.HIREMATH, AGA FOR R1, R3 & R4, SRI.R K KULKARNI, ADV. FOR R2, R5 DECEASED)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE RESPONDENT NO.1/DEPUTY COMMISSIONER AND RESPONDENT NO.2/ COMMISSIONER KOPPAL MUNICIPALITY TO CONSIDER THE REPRESENTATION AT ANNEXURE-G DATED:12.07.2016 TO RESPONDENT NO.5 AND DIRECT TO CONDUCT THE PREPARE THE CORRECT MAP.

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IN WRIT PETITION NO.105265/2018

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BETWEEN:

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SHRI. SYED YAKUB HUSSAINI S/O SYED SHABBIR HUSSAINI, AGE: 41 YEARS, OCC: BUSINESS, R/O: TEGGINAKERI ONI, KOPPAL, TQ and DIST: KOPPAL-582114.

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…PETITIONER

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(BY SRI. M.M.NAIKWADI, ADVOCATE)

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AND:

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SHRI. BADARI NARAYANA S/O SHANKAR RAO PADAKI AGE: 63 YEARS, OCC: AGRICULTURE, R/O: PADAKI LAYOUT, KOPPAL, TQ and DIST: KOPPAL-582114. SINCE DECEASED BY LEGAL HEIR 1(a) SAVITHRI W/O BADARI NARAYAN PADAKI AGE: 61 YEARS, OCC: HOUSEHOLD, R/O PADAKI LAYOUT, KOPPAL, TAL & DIST: KOPPAL-582114. 2. SHRI.VASANT RAO S/O SHANKAR RAO PADAKI AGE: 59 YEARS, OCC: AGRICULTURE, R/O: PADAKI LAYOUT, KOPPAL,

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WP No. 107761 of 2016 C/W WP No.105265 of 2018

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TQ and DIST: KOPPAL-582114.

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SHRI.GOVINDRAO S/O SRIPAD RAO PADAKI AGE: 51 YEARS, OCC: BUSINESS, R/O: PADAKI LAYOUT, KOPPAL, TQ and DIST: KOPPAL-582114.

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3(a) SMT.MANJULA W/O GOVINDRAO PADAKI AGE: 50 YEARS, OCC: STUDENT,

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R/O: PADAKI LAYOUT, KOPPAL, HASAN RASTE KOPPAL, TQ and DIST: KOPPAL-582114.

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3(b) SPOORTHI D/O GOVINDRAO PADAKI

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AGE: 25 YEARS, OCC: STUDENT, R/O: PADAKI LAYOUT, KOPPAL, HASAN RASTE KOPPAL, TQ and DIST: KOPPAL-582114.

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3(c) SHWETHA D/O GOVINDRAO PADAKI AGE: 22 YEARS, OCC: STUDENT, R/O: PADAKI LAYOUT, KOPPAL,

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HASAN RASTE KOPPAL, TQ and DIST: KOPPAL-582114.

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3(d) SUMITH S/O GOVINDRAO PADAKI AGE: 15 YEARS, (MINOR) OCC: STUDENT,

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R/O: PADAKI LAYOUT, KOPPAL, HASAN RASTE KOPPAL, TQ and DIST: KOPPAL-582114. BEING REP.BY MGM

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SHRI.VENKATESH S/O SRIPAD RAO PADAKI AGE: 54 YEARS, OCC: BUSINESS, R/O: PADAKI LAYOUT, KOPPAL, TQ and DIST: KOPPAL-582114.

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SHRI.TILAKABHI RAMARAO S/O SRIPAD RAO PADAKI AGE: 39 YEARS, OCC: BUSINESS, R/O: PADAKI LAYOUT, KOPPAL, TQ and DIST: KOPPAL-582114.

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WP No. 107761 of 2016 C/W WP No.105265 of 2018

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SMT.USHABAI W/O UDAYKUMAR PADAKI, AGE: 39 YEARS, OCC: BUSINESS, R/O: PADAKI LAYOUT, KOPPAL,

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SHRI.SYED NASIR HUSSAINI S/O S M JILANI, AGE: 41 YEARS, OCC: BUSINESS, R/O: HATAGARPET, KOPPAL-582114.

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SHRI.SYED JAMALUDDIN HUSSAINI S/O SYED MAINUDDIN HUSSAINI, AGE: 42 YEARS, OCC: BUSINESS, R/O: HATAGARPET, KOPPAL-582114.

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SHRI.MAHEBOOB JILANI S/O MAHAMMADSAB KANAKAGIRI, AGE: 31 YEARS, OCC: BUSINESS, R/O: HATAGARPET, KOPPAL-582114.

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…RESPONDENTS

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(BY SRI.N.D.GUNDE, ADV. FOR R1(a) & R2, R3(a TO c) ARE SERVED; R3(d) MINOR R/BY R3(a); NOTICE TO R3(a & b) IS HELD SUFFICIENT)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 22.03.2014 PASSED IN O.S.NO.183/2010 ON THE FILE OF THE JUDICIAAL AND NON JUDICIAL CONCILIATORS OF TALUKA LEGAL SERVICE AUTHORITY MUDHOL VIDE ANNEXURE-E.

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THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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WP No. 107761 of 2016 C/W WP No.105265 of 2018

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COMMON ORDER

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R.DEVDAS J., (ORAL):

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In W.P.No.107761/2016, the petitioners have made a representation dated 12.07.2016 at Annexure-G to respondent No.1-Deputy Commissioner, Koppal and respondent No.2-Commissioner, Koppal Town Municipality requesting for reconsideration of the layout plan said to have been sanctioned by the then Chief Officer of the Town Municipal Council in the year 1992 in favour of respondent No.5.

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Learned counsel for the petitioners submits that petitioners and respondent No.5 are brothers and in a family partition, a portion of the land bearing Sy.No.646/4 measuring 1 acre fell to the share of the petitioners and whereas land bearing Sy.No.646/5P1 fell to the share of respondent No.5. However, when respondent No.5 sought for sanction of a layout plan, the same was sanctioned by the then Chief Officer of the Town Municipality on

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WP No. 107761 of 2016 C/W WP No.105265 of 2018

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24.12.1992. The grievance of the petitioners however is confined to the western portion of the layout plan wherein the sites bearing Nos.122 to 130, are formed on a portion of the land belonging to the petitioners.

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Respondent Nos.1, 3 and 4 are represented by learned AGA, while respondent No.2-Commissioner, Koppal Town Municipality is represented by learned counsel Sri.R.K.Kulkarni. It is given to understand that respondent No.5 is no more and therefore, learned counsel for the petitioners sought for some time to bring the legal heirs of respondent No.5 on record. It is also submitted that no relief is sought against respondent No.5.

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On hearing the learned counsel for the petitioners and the learned counsel for the respondents, this court finds that the prayer made in W.P.No.107761/2016 seeking direction to the Deputy Commissioner and the Commissioner of Koppal Town Municipality to reconsider the layout plan said to have

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WP No. 107761 of 2016 C/W WP No.105265 of 2018

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been sanctioned in the year 1992, cannot be acceded to.

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When admittedly, the plan was sanctioned in the year 1992 and the layout has been formed by respondent No.5 and sites have been disposed of to third parties (including the petitioner in W.P.No.105265/2018), the respondentauthorities, whether it is the Deputy Commissioner or the Koppal Town Municipality, will not be empowered either to cancel or modify the sanctioned plan, since third party rights are already created. Therefore, unless the petitioners seek a declaration at the hands of the competent civil court or cancellation of any sale deeds that are already executed by respondent No.5 in favour of third parties, the respondent-authorities will not be empowered to pass any orders that would take away the rights of either respondent No.5 or third parties.

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At this juncture, it is brought to the notice of

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this court that petitioner in W.P.No.105265/2018 is a purchaser of an individual site in the layout formed by respondent No.5 and the petitioners herein have already

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WP No. 107761 of 2016 C/W WP No.105265 of 2018

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filed O.S.No.82/2017 seeking a relief of permanent injunction. Having regard to the undisputed facts and circumstances mentioned hereinabove, this court is of the considered opinion that the prayer made in W.P.No.107761/2016 cannot be granted.

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Insofar as W.P.No.105265/2018 is concerned,

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which arises out of O.S.No.82/2017 filed at the hands of the petitioners Sri.Bhadrinarayan and Sri.Vasanthrao in W.P.No.107761/2016, the present petitioner who is defendant No.7 in the suit is aggrieved by the order of the first appellate court in M.A.No.3/2018 dated 02.08.2018 whereby the order of temporary injunction which was earlier granted by the trial court was later vacated by order dated 13.06.2018, but by the impugned order dated 02.08.2018, the first appellate court set aside the order dated 13.06.2018. In other words, the first appellate court sought to allow I.A.No.VII filed by the plaintiffs seeking grant of temporary injunction to restrain the defendants, more particularly defendant No.7.

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WP No. 107761 of 2016 C/W WP No.105265 of 2018

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As rightly submitted by the learned counsel for

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the petitioner in W.P.No.105265/2018, the trial court has rightly noticed that, when the plaintiffs do not dispute the fact that defendant No.7 is in possession of plot No.128 by virtue of a registered sale deed, the plaintiffs were required to file a suit for recovery of possession. The trial court had rightly noticed that the Hon’ble Supreme Court in the case of Anathulla Sudhakar Vs P.Buchi Reddy

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(Dead) by Lrs. And Others reported in (2008) 4 SCC 594 enunciated the principles that whenever there is a cloud cast on the title of the plaintiffs to the suit schedule property, the plaintiffs cannot maintain a suit for a bare injunction. Therefore, the plaintiffs are required to file a suit for recovery of possession.

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Although learned counsel for the

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petitioners/plaintiffs seek to deny the fact that plaintiffs have admitted the possession of plot No.128 in favour of defendant No.7, it would be a question that is required to be decided by the trial court.

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WP No. 107761 of 2016 C/W WP No.105265 of 2018

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Having regard to the fact that writ petition filed

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at the hands of the petitioners in W.P.No.107761/2016 is dismissed having found that a direction cannot be issued to the respondent-authorities either to cancel or modify the layout plan sanctioned in the year 1992, this court is of the considered opinion that the impugned order passed by the first appellate court in M.A.No.3/2018 is required to be quashed and set aside. No infirmity could be found in the original order of the trial court passed on I.A.No.VII dated 13.06.2018. Consequently, this court proceeds to pass the following:

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ORDER

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i) W.P.No.107761/2016 is dismissed.

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ii) W.P.No.105265/2018 is allowed. The impugned order dated 02.08.2018 passed in M.A.No.3/2018 on the file of the Senior Civil Judge, Koppal is hereby quashed and set aside. The Order dated 13.06.2018 passed on

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WP No. 107761 of 2016 C/W WP No.105265 of 2018

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I.A.No.VII in O.S.No.82/2017 by the Additional

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Civil Judge and JMFC, Koppal is upheld.

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iii) Needless to observe that any observations made herein on the merits of the matter which is awaiting consideration in O.S.No.82/2017 shall not prejudice the case of either of the parties in the suit.

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iv) The trial court dealing in O.S.No.82/2017 on the file of the Additional Civil Judge and JMFC, Koppal is hereby directed to try and dispose of the suit as expeditiously as possible and at any rate within a period of six months from the date of receipt of a certified copy of this order.

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v) Ordered accordingly.

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SD JUDGE

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MBS/-

Shri. Syed Yakub Hussaini v. Shri. Badari Narayana S/O Shankar Rao Padaki

Case brief

What is this about?

What did the court decide?

Shri. Syed Yakub Hussaini v. Shri. Badari Narayana S/O Shankar Rao Padaki

Case brief

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What did the court decide?

What the court decided

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