Allowed

Sri Sheshanaika v. Sri Ameer Hamza

Karnataka HC2 Sept 2022WP/13233/2018

Case brief

AI extract

What is this about?

Karnataka HC allowed defendants' writ petition setting aside the first appellate court's order granting temporary injunction to the plaintiff. The court directed maintenance of status quo regarding property possession pending trial and instructed the trial court to decide the suit within six months, noting the existence of conflicting titles and possession claims.

What did the court decide?

The impugned order dated 04/11/2017 in MA Nos. 26/2017 and 27/2017 is set aside; parties directed to maintain status quo; trial court directed to dispose suit within six months.

Sri Sheshanaika Vs Sri Ameer Hamza — Property and Title | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 02^ND DAY OF SEPTEMBER, 2022

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BEFORE

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THE HON’BLE Mrs. JUSTICE K.S. HEMALEKHA

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WRIT PETITION No.13233/2018 (GM-CPC)

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BETWEEN:

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SRI SHESHANAIKA AGED ABOUT 68 YEARS,

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SMT. SAVITHRI W/O. SHESHANAIKA AGED ABOUT 62 YEARS,

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SRI GANESHA S/O. SHESHANAIKA, AGED ABOUT 25 YEARS,

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SRI DEVENDRA S/O. SHESHANAIKA, AGED ABOUT 34 YEARS,

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ALL ARE RESIDENTS OF YALAGALLU VILLAGE, HUMCHA HOBLI, HOSANAGAR TALUK SHIMOGA DISTRICT – 577 436. ... PETITIONERS

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(BY SRI HARISH KUMAR M.S., ADVOCATE)

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AND:

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SRI AMEER HAMZA S/O. NAZEER AHAMEED, AGED ABOUT 44 YEARS, R/O. KODURU, YALAGALLU VILLAGE, HUMCHA HOBLI, HOSANAGAR TALUK, SHIMOGA DISTRICT – 577 436.

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... RESPONDENT

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(BY SRI RAVI L. VAIDYA, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER PASSED BY THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, SAGAR IN MA NO.26/2017 AND MA NO.27/2017 DATED 04.11.2017 VIDE ANNEXURE-L AND M REVERSING THE ORDER OF THE PRINCIPAL CIVIL JUDGE AND JMFC AT HOSANAGARA VIDE ANNEXURE-H.

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THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED ON 18/08/2022 FOR ORDERS AND COMING FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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O R D E R

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The Defendants have preferred the present writ

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petition assailing the order dated 04/11/2017, in M.A.Nos.26/2017 and 27/2017, on the file of the Addl.

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Senior Civil Judge & JMFC at Sagar, (hereinafter referred to as "the trial Court" for the sake of convenience), whereby miscellaneous applications filed by the plaintiff were allowed, consequently, I.A.No.5 filed by the defendants under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908

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("CPC") was dismissed with costs and I.A.No.1 filed by the plaintiff under Order XXXIX Rules 1 and 2 of CPC in O.S.No.3/2017 was allowed.

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The parties herein are referred to as per their ranking before the trial Court for the sake of convenience.

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The suit in O.S.No.3/2017 for a permanent injunction against the defendants contending that plaintiff is the absolute owner in possession and enjoyment of the agricultural land bearing Sy. No.49 (Old No.30) measuring 2 acres 8 guntas of land situated at Kasagundi Village, Kerehalli Hobli, Hosanagara Taluk. Along with the plaint, the plaintiff applied I.A.No.1 seeking a temporary injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit schedule property.

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Pursuant to the summons issued by the trial Court, the defendants appeared and filed their written statement and counterclaim seeking a declaration that defendant No.2/petitioner No.2 Savithri @ Savithramma herein has become the absolute owner by the Will dated 02/06/1998 executed by late Smt. Gangamma wife of Sidda Naika and also sought a permanent injunction contending that she is in peaceful possession and enjoyment of the suit schedule property. The defendants filed their objections to the temporary injunction and filed a separate application I.A.No.5 seeking an injunction restraining the plaintiff from interfering with the peaceful possession and enjoyment of the suit schedule property.

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The trial Court while directing the order of status quo believed that the genuineness of the documents produced by either party cannot be

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decided without holding a trial and in the interest of both sides, parties were directed to maintain the status quo.

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The plaintiff being unhappy directing parties to maintain status-quo, preferred Miscellaneous Appeal Nos.26 and 27 of 2017. The first appellate Court arrived at a finding that the plaintiff has established a prima-facie case and that as trial Court failed to mention specifically what is statusquo order and rejected I.A.No.5 filed by the defendants under Order 39 Rules 1 and 2 and consequently allowed MA Nos.26/2017 and 27/2017 by allowing I.A.No.1 filed by plaintiff under Order 39 Rules 1 and 2. Hence, this petition by the defendants.

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Heard learned counsel for the parties to the

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lis and perused the material evidence on record.

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Learned counsel for the petitioners/

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defendants, Sri Harish Kumar M.S. would contend that suit filed by the plaintiff is for a permanent injunction based on the alleged registered Sale Deed dated 23/08/2016 executed by Nagarathna alleging to be

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the daughter of Gangamma. It is contended by the learned counsel that the defendants have disputed the title of Nagarathna in the written statement and that Nagarathna is the daughter of Gangamma, further contended that the said Gangamma had bequeathed the suit schedule property in favour of defendant No.2 Savithri by Will dated 02/06/1998 and on the death of Gangamma on 12/08/2018, the name of defendant No.2 and her family members were entered in the revenue records as absolute owners and would contend that by way of counterclaim defendants have disputed the title of the plaintiff based on alleged Sale Deed stating these facts, the learned counsel would

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contend that conclusion arrived by the trial Court to grant an order of status-quo was because of these disputed facts, which would require full fledge trial and sought to allow the petition and set aside the order of First Appellate Court.

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Per contra , learned counsel for the respondent, Sri Ravi L. Vaidya sought to justify the order of the First Appellate Court contending that the defendants are seeking an injunction in the suit filed by the plaintiff and the document relied upon by the defendant to establish possession is an unregistered Will executed by Gangamma which is yet to be proved under law. The learned counsel placing reliance of paragraph No.23 of the written statement of defendants would contend that defendants have not disputed the relationship of Nagarathna with Gangamma and what is disputed is that Nagarathna has no right to succeed to any property of a Hindu as

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Nagarathna got converted to Islam and had married one Mohammad Yusuf and thus, the first appellate Court considering the material and holding prima-facie case has been established by the plaintiff, allowed I.A.No.1 filed by plaintiff and rejected I.A.No.5 filed by defendants. On these grounds sought to dismiss the petition.

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This Court has considered the rival contention for the parties and carefully perused the material on record including the impugned orders passed by the trial Court and the first appellate Court. The application I.A.No.5 filed by defendant No.2 by stating that Nagarathna is not the daughter of Gangamma as she has been converted to Islam religion by marrying one Mohammed Yusuf before 12/08/1998 and as such, the Will was executed in favour of defendant No.2 dated 12/06/1998. The counterclaim filed by the defendants is for a

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declaration to declare that defendant No.2 Savithri @ Savithramma is the absolute owner and is in possession of the property by way of Will executed by Gangamma and further to declare that the alleged sale deed dated 23/08/2016 executed by Nagarathna in favour of the plaintiff in respect of the suit schedule property is null and void.

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The three aspects that need to be

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considered while granting a temporary injunction are, the prima facie case, the balance of convenience and irreparable loss and hardship to the person seeking a temporary injunction. On perusal of the pleadings of both the parties, the contention raised by the learned counsel for the parties regarding possession of the suit schedule property, it would be relevant to note that the Will is executed on 02/06/1998 by Smt. Gangamma as she was in actual possession of the suit schedule property and based on the Will, the name of

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defendant No.2 was entered in the revenue records. This is a mere suit for permanent injunction and the plaintiff's contention is that he has purchased the suit schedule property under the registered sale deed dated 23/08/2016 from its erstwhile owner Nagarathna and accordingly and his name is entered. There is a contradictory statement by the plaintiff, which contradicts the averments in the plaint as he is in possession of the suit schedule property even before 1998, whereas the sale deed is of the year 2016. Revenue entries standing in the name of the plaintiff are seriously controverted by the defendants stating that the revenue entries had been initially entered in the name of Nagarathna, but it was illegal. However, the fact remains that there is a dispute concerning who is in actual possession of the suit schedule property. Looking into this aspect the trial Court was justified in holding that the Court cannot

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grant an injunction in favour of one and reject in favour of another under such circumstances had granted an order of status quo. This being so, the first appellate Court on the other hand rejected I.A.No.5 filed for temporary injunction by defendant No.2 holding that they have not made out prima facie case, the balance of convenience and hardship that would be caused to the defendants, but the perusal of the material on record would depict that the status quo order granted by the trial Court is in light of the dispute between the plaintiff and defendants till the disposal of the suit is justifiable.

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In the circumstances, the Apex Court in

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the case of Shiv Kumar Chadha vs. Municipal Corporation of Delhi and others [(1993)3 SCC 161] at paragraph Nos.18 and 30 has held as under:

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" 18. The Constitution Bench in Dhulabhai v. State of M.P. [AIR 1969 SC 78 : (1968) 3

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SCR 662 : 22 STC 416]said: "Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court.

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Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not."

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xxx xxx xxx

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Temporary Injunction

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30. It need not be said that primary object of filing a suit challenging the validity of the order of demolition is to restrain such demolition with the intervention of the court. In such a suit the plaintiff is more interested in getting an order of interim injunction. It has been pointed out repeatedly that a party is not entitled to an order of injunction as a matter of right or course. Grant of injunction is within the discretion of the court and such discretion is to be exercised in favour of the plaintiff only if it is proved to the satisfaction of the court that unless the defendant is restrained by an order of injunction, an irreparable loss or damage will be caused to the plaintiff during the pendency of the suit. The purpose of temporary injunction is, thus, to maintain the status quo. The court grants such relief according to the legal principles — ex debito justitiae. Before any such order is passed the court must be satisfied that a strong prima facie case has been made out by the plaintiff including on the question of maintainability of the suit and the balance of

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convenience is in his favour and refusal of injunction would cause irreparable injury to him."

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Moreover, this Court, on 17/04/2018, while issuing notice at the time of the preliminary hearing, granted an interim stay, staying the operation of the order dated 04/11/2017 passed in MA Nos.26/2017 and 27/2017. Given there is a stay of operation of the order dated 04/11/2017, what would operate is the status quo order as granted by the trial Court on 23/09/2017 would be restored. Accordingly, this Court is of the considered view that the order of status quo regarding possession needs to be maintained between the parties in respect of the suit schedule property till the disposal of the suit.

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In the result, this Court pass the following:

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ORDER

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(i) Writ petition is allowed .

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(ii) The impugned order dated 04/11/2017 passed in MA.No.26/2017 and MA No.27/2017 on the file of Addl. Senior Civil Judge and JMFC, Sagar, is hereby set aside.

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(iii) Parties are directed to maintain the status quo regarding possession in respect of the suit schedule property as on the date of the status quo order granted by the trial Court i.e., 23/09/2017 till the disposal of the suit.

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(iv) It is needless to observe that any opinion expressed in connection with the passing of this order has no bearing and shall not affect any of the parties at the stage of

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the final adjudication and findings are limited to the orders on these I.A.s only.

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(v) The trial Court is directed to dispose of the suit as expeditiously as possible, but not later than six months from the date of receipt of a copy of this order.

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No order as to costs.

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SD/JUDGE

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Sri Sheshanaika v. Sri Ameer Hamza

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Sri Sheshanaika v. Sri Ameer Hamza

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