Allowed

Smt Geethamma v. Sri K R Siddaiah

Karnataka HC18 Aug 2022WP/58155/2018

Case brief

AI extract

What is this about?

The Karnataka High Court allowed a writ petition filed by Defendant No. 2, setting aside the First Appellate Court's order which had granted a temporary injunction to the plaintiff. The High Court quashed the previous order and directed the continuation of the status quo maintained since December 2018 until the suit's final disposal.

What did the court decide?

The impugned order dated 07/12/2018 is set aside; the status quo order dated 28/12/2018 is made absolute until the disposal of the suit.

Smt Geethamma Vs Sri K R Siddaiah — 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 18^TH DAY OF AUGUST, 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.58155/2018 (GM-CPC)

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BETWEEN:

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SMT. GEETHAMMA W/O. NAGARAJU, AGED ABOUT 46 YEARS, R/AT GOMARADAHALLY VILLAGE, GOWDAGERE HOBLI, SIRA TALUK – 572 103. ... PETITIONER

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(BY SRI V.B. SIDDARAMAIAH, ADVOCATE)

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AND:

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SRI K.R. SIDDAIAH S/O. K.S. RAMANNA, AGED ABOUT 49 YEARS,

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SRI H.T. GOVINDAPPA S/O. LATE THIMMANNA, AGED ABOUT 69 YEARS,

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R-1 AND R-2 ARE R/AT HULIKUNTE VILLAGE, PARASHURAMAPURA HOBLI – 577 522 CHALLAKERE TALUK, CHITRADURGA DISTRICT. ... RESPONDENTS

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(BY SRI SRIVAKUMARAPPA T.C., ADVOCATE FOR SRI B.M. SIDDAPPA, ADVOCATE FOR R-1; V/O. DATED 18/08/2022, NOTICE TO R-2 IS DISPENSED WITH)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE JUDGMENT DATED 07.12.2018 PASSED BY THE COURT OF THE

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ADDL. SENIOR CIVIL JUDGE AND JMFC, AT CHALLAKERE, IN M.A.NO.12/2018 VIDE ANNEXURE-P CONSEQUENTLY DISMISS THE MA NO.12/2018 FILED BY THE R-1 PLAINTIFF U/O 43 RULE-1 OF C.P.C. VIDE ANNEXURE-O.

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THIS WRIT PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:-

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O R D E R

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Defendant No.2 has preferred the present writ petition assailing the order dated 07/12/2018, in M.A.No.12/2018, on the file of the Addl. Senior Civil Judge & JMFC at Chalkere, (hereinafter referred to as “the trial Court” for the sake of convenience), whereby I.A.No.1 filed by the plaintiff under order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 (“CPC”) was allowed and the temporary injunction was granted and I.A.No.2 filed by the defendants under

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Order XXXIX Rules 1 and 2 of the CPC was rejected.

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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.132/2017 for declaration

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that the plaintiff is in possession and enjoyment of the suit schedule property by way of adverse possession peacefully and openly without any interruption from anybody else with the knowledge of defendant Nos.1 and 2 and their vendor since 1975, for permanent injunction restraining defendants interfering with the peaceful possession and enjoyment of the suit schedule property and for cancellation of the sale deed dated 24/12/2016 executed by defendant No.1 in favour of defendant No.2 in respect of the suit schedule property. The suit schedule property as mentioned in the plaint Schedule “A” and “B” are as under:

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“A) Land bearing Sy.No.174/5, measuring 5 Acres 06 Guntas excluding 03 Guntas of Karab, 5 Acres 03 Guntas in which 1 Acres 11 Guntas is the Suit Schedule Property, which is bounded by

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East : The land sold by Govindappa to Geethamma, ie., 3 Acres 32 guntas. West : Land belongs to Plaintiff North : Land belongs to Puttamma W/o late Eswarappa South : Land belongs to Mangalamma W/o late B.Veeranna and Vinaykumar

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B) Land bearing Sy.No.174/2P measuring 3 Acres Guntas, which is bounded by

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East	:	‘A’ Schedule Property
West	:	Land belongs to Indramma W/o
		late Henjarappa
North	:	Land belongs to Puttamma W/o
		late Eswarappa
South	:	Land belongs to Mangalamma W/o
		late B.Veeranna”

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Defendant No.1 filed written statement

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denying the plaint averments and denied that plaintiff

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is in peaceful possession and enjoyment of the suit schedule property. It is specifically contended by

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defendant No.1 that the schedule mentioned in the written statement is Sy.No.174/5, totally measuring 5 acres 6 guntas situated at Hulikunte Village is in possession from 16/05/1977 having purchased the written statement schedule property under the registered sale deed from Mruthyunjayappa for a valuable sale consideration and was put in possession of the written statement schedule property. It is further contended that defendant No.1 in turn sold the property to defendant No.2 vide registered sale deed dated 24/12/2016 for a valuable sale consideration and is put in possession of the written statement schedule land. Accordingly, the name of defendant No.2 is entered in the revenue records in respect of written statement schedule land R.Sy.No.174/5 totally measuring 5 Acres 6 guntas, situated at Hulikunte Village, Parashuramapura Hobli, Challakere Taluk and sought for dismissal of the suit.

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5. Defendant No.2 filed the written statement

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taking the similar stand as taken by defendant No.1 in his written statement and contended that defendant No.1 was in possession of the written statement schedule property since purchase under the registered sale deed dated 16/05/1977, in addition, by way of counter claim contended that the written statement schedule land bearing Sy.No.174/5 to the full extent of 5 acres 3 guntas has been purchased under registered sale deed dated 24/12/2016 by defendant No.2 and is in possession.

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The plaintiff filed I.A.No.1 under Order

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XXXIX Rules 1 and 2 of the CPC restraining the defendants from interfering with the suit schedule property measuring 1 acre 11 guntas out of total extent of 5 acres 6 guntas of land in Sy.No.174/5 of Hulikunte Village, Parashuramapura Hobli, Challakere Taluk, pending disposal of the suit contending that the

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defendants and their purchasers are in possession of 3 acres 32 guntas in Sy.No.174/5 of Hulikunte Village out of 5 acres 6 guntas and the remaining 1 acre 11 guntas of said Sy.No.174/5 are in possession of the plaintiff and his father.

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Defendant Nos.1 and 2 filed objections stating that the entire extent of Sy.No.174/5measuring 5 acres 3 guntas is in possession of defendant No.2. The defendant No.2 also filed an application I.A.No.2 under Order XXXIX Rules 1 and 2 of the CPC seeking to grant an ad interim order of temporary injunction restraining the plaintiff or anybody on his behalf from interfering with the peaceful possession and enjoyment of counter claim schedule property by defendant No.2. Schedule of the property is mentioned as per Annexure –L and the same reads as under:

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“The land bearing R.Sy.No.174/5, totally measuring 05 acres 06 guntas, situated at Hulikunte village, Parashurampura Hobli, Challakere Tq., the same has been bounded by

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East : Land of Jayamma w/o Siddappa West : Land of Siddappa i.e. the plaintiff North : Land of Puttamma w/o Eshwarappa South : Land of Jogappa S/o Byrappa”

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The trial Court, on consideration of the material and evidence on record held that the plaintiff has failed to prove prima facie case and the two essential ingredients, that is, the balance of convenience and irreparable loss and hardship has been failed to be established by the plaintiff and held that the defendants are able to prove that they are in possession of the suit schedule property and also established the essential ingredients of balance of convenience and irreparable loss and hardship that would be caused to the defendants and accordingly,

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dismissed I.A.No.1 filed by the plaintiffs under Order XXXIX Rules 1 and 2 of the CPC and allowed I.A.No.2 filed by defendant No.2 under Order XXXIX Rules 1 and 2 of the CPC restraining the plaintiff from interfering with the peaceful possession and enjoyment of the counter claim schedule property till the disposal of the suit.

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Aggrieved by the order on I.A.Nos.1 and 2 the plaintiffs preferred M.A.No.12/2018 before the First Appellate Court. The First Appellate Court on reconsideration of material on record, reversed the finding of the trial Court and accordingly allowed the miscellaneous appeal filed by the plaintiff and allowed I.A.No.1 filed by the plaintiff under Order XXXIX Rules 1 and 2 of the CPC and temporary injunction was granted and I.A.No.2 filed by the defendants under Order XXXIX Rules 1 and 2 of the CPC came to be

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rejected. Aggrieved by the order in M.A.No.12/2018

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the present appeal filed by defendant No.2.

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Heard learned counsel for the parties to the

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lis .

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Learned counsel for the petitioner, Sri V.B.Siddaramaiah would contend that the rejection of the I.A. filed by defendant No.2 is without appreciating the material facts on record and is contrary to the law and facts. Learned counsel for the petitioner would contend that defendant No.2 is in possession of the property as stated in I.A.No.2 filed for temporary injunction since the date of purchase by defendant No.2 vide registered sale deed dated 24/12/2016 and his vendor defendant No.1 was in possession of the written statement schedule property since 16/05/1977 and thus, the First Appellate Court was not justified in dismissing I.A.No.2 filed by

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defendants seeking temporary injunction and allowing I.A.No.1 filed by the plaintiff for temporary injunction without considering the fact that the suit is for declaration that they are in possession of the suit schedule property by way of adverse possession where there is no valid title and on this ground sought to allow the petition.

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Per contra, Sri Shivakumarappa T.C.

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appearing on behalf of Sri B.M.Siddappa, learned counsel for respondent No.1 would justify the order passed by the First Appellate Court and that the First Appellate Court has re-appreciated and has rightly come to the conclusion that the plaintiff is in peaceful possession and enjoyment of the suit schedule property and prima facie case is established by looking into the survey record and thus sought to dismiss the petition filed by defendant No.2.

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Heard the learned counsel for the parties and perused the material on record. The undisputed fact is that the plaintiff is not seeking declaration on the basis of any registered document and the suit is filed for declaration that the plaintiffs are in possession of the suit schedule property by way of adverse possession. It is also not in dispute that I.A.No.1 is filed by the plaintiff under Order XXXIX Rules 1 and 2 of the CPC seeking temporary injunction restraining the defendants from interfering with the suit schedule property i.e., 1 acre 11 guntas out of 5 acres 6 guntas in Sy.No.174/B of Hulikunte Village and the defendants have filed I.A.No.2 seeking temporary injunction restraining the plaintiff from interfering with Sy.No.174/5 of Hulikunte Village, of

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the entire extent of 5 acres 6 guntas. It is the contention of the plaintiff that the plaintiff is in possession of 1 acre 11 guntas and the defendants are

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in possession of the remaining extent i.e., 3 acres 32 guntas.

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The materials on record reveal that the

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record of rights in respect of Sy.No.174/5 measuring 5 acres 6 guntas stands in the name of defendant No.2 and the certified copy of the registered sale deed executed by defendant No.1 in favour of defendant No.2 is in respect of the counter claim schedule property i.e., 5 Acres 6 guntas. No records are forthcoming to show that the plaintiff is in possession to an extent of 1 acre 11 guntas other than the statement of the plaintiff. The plaintiff claims that he is in possession of the suit schedule property by way of adverse possession. At this stage with the material available on record, it is improper to conclude whether the plaintiff is in possession of the suit schedule property until by holding full-fledged trial. On the basis of the registered sale deed and the mutation

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record, there is prima-facie case and balance of convenience that defendant No.2 is in possession of written statement schedule property. Further, vide order dated 28/12/2018, this Court directed the parties to maintain status quo in respect of the properties in question, as was, on the date of passing the interim order and since 2018 till date, the order of

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status quo is in operation. Looking into the peculiar facts and circumstances of the case, this Court is of the considered view that the status quo order granted on 28/12/2018 needs to be continued till the disposal

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of the suit in the interest of both the parties. Accordingly, 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 status quo order dated 28/12/2018 is made absolute till the disposal of the suit in O.S.No.132/2017.

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(iii) The impugned order dated 07/12/2018 passed in M.A.No.12/2018 on the file of Additional Senior Civil Judge & JMFC, Challakere is hereby set aside.

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(iv) The trial Court shall dispose of the matter 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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(v) It is needless to observe that any findings or observation made in this petition is restricted only to the order passed on I.A.Nos.1 and 2 and cannot be considered

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for adjudication of the rights of the parties on merits.

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No order as to costs.

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SD/JUDGE

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Smt Geethamma v. Sri K R Siddaiah

Case brief

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Smt Geethamma v. Sri K R Siddaiah

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