Disposed

Sri M Ananda v. Sri H. Sathyanarayana S/O. Late Hulugappa, Age Major, Occ. Advocate

Karnataka HC6 Jul 2023WP/100136/2023

Case brief

AI extract

What is this about?

The High Court disposed of the writ petition filed to quash an appellate court order dismissing a temporary injunction application. Finding that the plaintiff admitted defendants' possession of a shed, the Court did not interfere with the injunction dismissal but maintained status quo and directed parties to cooperate for the suit's disposal.

What did the court decide?

The writ petition was disposed of. Status quo ordered regarding possession. Defendants directed not to construct over the zinc sheet shed portion till the disposal of the suit.

Sri M Ananda Vs Sri H. Sathyanarayana S/O. Late… — Property and Title | Karnataka HC (2023)

¶1

¶2

NC: 2023:KHC-D:6827 WP No. 100136 of 2023

¶3

IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

¶4

DATED THIS THE 6^TH DAY OF JULY, 2023 BEFORE

¶5

THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR

¶6

WRIT PETITION NO. 100136 OF 2023 (GM-CPC)

¶7

BETWEEN:

¶8

SRI M. ANANDA, REPRESENTED BY HIS GPA HOLDER, SMT. M. SAVITHA W/O. M. ANANDA, AGE: 50 YEARS, OCC: AGRICULTURIST, R/O: DOOR NO.8/186, OM SHANTI LANE, BEHIND BASAVESHWAR BAZAR, H.B. HALLI, TALUK: AND DIST: VIJAYANAGARA.

¶9

…PETITIONER

¶10

(BY SRI MALLIKARJUNSWAMY B. HIREMATH, ADVOCATE)

¶11

AND:

¶12

ROHAN HADIMANI T

¶13

Digitally signed byROHAN HADIMANI T Location: High Court of Karnataka, Dharwad

¶14

SRI H. SATHYANARAYANA S/O. LATE HULUGAPPA, AGE: 51 YEARS, OCC: ADVOCATE, R/O. BEHIND SAI BABA TEMPLE, KURUDAGADDI AREA, RAMANAGARA, H. B. HALLI-583101, DIST: VIJAYANAGARA.

¶15

HANUMANTHAPPA S/O. MURTEPPA, AGE: 48 YEARS, OCC; R/O: BEHIND SHADI MAHAL, HAGRIBOMMANAHALLI-583101, DIST: VIJAYANAGAR.

¶16

…RESPONDENTS

¶17

(BY SRI B.C. JNANAYYASWAMY, AND SRI A. VEERANNA, ADVOCATES FOR RESPONDENT NOS. 1 AND 2)

¶18

2 - NC: 2023:KHC-D:6827 WP No. 100136 of 2023

¶19

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE THE WRIT OF CERTIORARI QUASHING THE IMPUGNED ORDER DATED 15.12.2022 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC, HAGARIBOMMANAHALLI, IN M.A.NO.03/2022 WHICH IS PRODUCED AT ANNEXURE-H AND CONSEQUENTLY DISMISS THE SAID M.A.NO.03/2022.

¶20

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

¶21

ORDER

¶22

This petition is filed by the plaintiff being aggrieved by the impugned order dated 15.12.2022 passed by the Senior Civil Judge and JMFC, Hagaribommanahalli (for short, 'the Appellate Court') in M.A.No.3/2022 produced at Annexure-H and consequently prays to dismiss the said M.A.No.3/2022.

¶23

Parties shall be referred to as per their ranks before the Trial Court.

¶24

The petitioner herein has filed a suit in O.S.No.3/2022 before the Civil Judge and JMFC, Hagaribommanahalli, (for short, 'the Trial Court') against the respondents herein. After filing of the suit, plaintiff filed an application under Order XXXIX Rule 1 and 2 of CPC

¶25

3 - NC: 2023:KHC-D:6827 WP No. 100136 of 2023

¶26

restraining the defendants from putting up of any construction on the suit schedule property and another prayer was also sought for by way of insertion in the said application not to interfere in the suit schedule property. This application came to be allowed by the Trail Court by

¶27

the order dated 02.03.2022 after hearing both sides, an order of injunction was granted restraining the defendants from interfering the possession of the plaintiff and also restraining the defendants from putting up any construction till disposal of the suit.

¶28

Aggrieved by the said order of injunction passed by the Trial Court, the defendants challenged the same in M.A.No.3/2022 before the appellant Court, which after contest was allowed by the appellate Court by setting aside the order passed by the Trial Court and dismissed the application preferred by the plaintiff, it is this order i.e., put in challenge by the plaintiff.

¶29

It is the contention of learned counsel for the plaintiff that though there may be a technical error in

¶30

4 - NC: 2023:KHC-D:6827 WP No. 100136 of 2023

¶31

claiming two relief's in one application that the fact remains that suit filed by the plaintiff for the relief of declaration to declare that the plaintiff is the owner of suit schedule property and to direct the defendants to hand over the vacant possession of the suit schedule property by removing the illegal construction in the suit schedule property by the defendants.

¶32

Learned counsel further contends that the appellate Court has committed an error in not appreciating the fact that several documents have been placed by the plaintiff to prove his ownership and possession over the suit schedule property, except to the extent of encroached portion of the zinc sheet shed, which has been deliberately encroached by the defendants and that the plaintiff is in possession of the suit schedule property on the basis of the valid title. It is also the case of plaintiff that the defendants have illegally trespassed into the property of the plaintiff and have putting up illegal structure, which is sought to be demolished and vacant possession is sought

¶33

5 - NC: 2023:KHC-D:6827 WP No. 100136 of 2023

¶34

to be handed over to the plaintiff. He further contends that the appellate Court has not taken into consideration this aspect with regard to the plaintiff being the absolute owner of the property and that the defendants trying to interfere with the peaceful enjoyment of the plaintiff's property.

¶35

Learned counsel fairly submits that the defendants are in a portion of the property having put up a zinc sheet shed illegally which he has sought for possession and for a relief of mandatory injunction. Be that as it may, the appellate Court has not considered these aspects and has out rightly dismissed the application filed by plaintiff under Order XXXIX Rule 1 and 2 of CPC by allowing the appeal preferred by the defendants, which according to him is illegal, arbitrary and same deserves to be set aside. He seeks to allow his petition and to set aside the order passed by the Trial Court.

¶36

Per Contra , learned counsel representing respondents/defendants vehemently contends that the

¶37

6 - NC: 2023:KHC-D:6827 WP No. 100136 of 2023

¶38

defendants are in possession of the portion of property in their own right and interest and they are not interfering with any portion of the property belonging to the plaintiff. It is further contended by learned counsel representing defendants that the property belonging to the plaintiff even according to the plaint is Sy.No.285, whereas defendants are the owners of property belonging to Sy.No.286D. Therefore, these two properties are different properties and plaintiff is trying to mislead the Court by taking property of the defendants in the guise of this suit

¶39

by way of interim order. It is also contention of learned counsel for defendants that pursuant to the stay being granted by this Court, the plaintiff is making hectic efforts to throw out the defendants from the possession of the property in which they are in peaceful possession, which is a zinc sheet shed attached to it another portion of construction of house. Therefore, the orders passed by the appellate Court does not call for interference and there is no illegality or arbitrariness in the said order.

¶40

7 - NC: 2023:KHC-D:6827 WP No. 100136 of 2023

¶41

I have heard the learned counsel for both parties. Having perused the impugned order and the suit claim made by the plaintiff. It is apparently clear that plaintiff has filed the suit seeking relief of declaration and possession over the encroached portion of the zinc sheet shed upon the defendants. Therefore, admittedly, the plaintiff has admitted the possession of the defendants in the zinc sheet shed of the suit schedule property. Though, the plaintiff has made two prayers in the application, which the Civil Rules of Practice does not permit as only one prayer requires to be made in the one application. The appellate Court has considered this aspect of the matter and has dismissed the application under Order XXXIX Rule 1 and 2 of CPC by allowing the appeal.

¶42

No doubt, the appellate Court is right in holding

¶43

that the plaintiff having admitted the possession of the defendants in a portion of property cannot claim injunction

¶44

as against the defendants that he has already been in possession and relief is also sought to eject and evict the

¶45

8 - NC: 2023:KHC-D:6827 WP No. 100136 of 2023

¶46

defendants from the suit schedule property such relief cannot be granted by the Court and the appellate Court to that extent is correct and same does not call for interference. The appellate Court having considered these aspects, has allowed the appeal and rejected the application under Order XXXIX Rule 1 and 2 of CPC and this Court while entertaining this writ petition has granted an interim order granting status quo to be maintained till disposal of this petition.

¶47

Having heard both parties, this Court is of the opinion that the status quo having been granted by this Court, if continued till disposal of the suit, the parties could adduce their evidence and thrash out the dispute with regard to the possession, title, and if any encroachment by the either party in a full-fledged trial which would make the issue clear as to who has encroached which portion of the property. Thereby the defendants who are admittedly in possession of the zinc sheet shed in the suit schedule property, this right would

¶48

9 - NC: 2023:KHC-D:6827 WP No. 100136 of 2023

¶49

be protected and the plaintiff's right deserves to be protected to the extent that the defendants do not interfere with his possession. Under these circumstances, I proceed to pass the following :

¶50

ORDER

¶51

(i) This writ petition is disposed off.

¶52

(ii) The parties to the proceedings that is plaintiff as well as defendants shall maintain an order of status quo with regard to possession of respective portion of the suit schedule property more specifically defendants with regard to zinc sheet shed.

¶53

(iii) The parties shall co-operate with the Trial Court for disposal of the suit, the Trial Court shall disposal of the suit in accordance with law in an expeditious manner.

¶54

(iv) It is made clear that the Trial Court shall not be influenced any of the opinion and observations mad, as the same is made only

¶55

NC: 2023:KHC-D:6827 WP No. 100136 of 2023

¶56

10 -

¶57

for the purpose of deciding the application filed

¶58

under Order XXXIX Rule 1 and 2 of CPC.

¶59

(v) Defendants shall not put up any

¶60

construction over the zinc sheet shed portion

¶61

till the disposal of the suit.

¶62

Sd/JUDGE

¶63

CKK List No.: 1 Sl No.: 31

Sri M Ananda v. Sri H. Sathyanarayana S/O. Late Hulugappa, Age Major, Occ. Advocate

Case brief

What is this about?

What did the court decide?

Sri M Ananda v. Sri H. Sathyanarayana S/O. Late Hulugappa, Age Major, Occ. Advocate

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Mallangouda Sankangouda Patil Vs Ramapppa Kallappa Ningannure

Smt. Rekha W/O Dr. Ramakrishna Nayak Vs Smt. Hema W/O Ramakrishna Nayak

Iranna T Gouli Vs the State of Karnataka

Shri Shrikant S/O Anand Metri Vs Chi Om S/O Shrikant Metri

Krishna S/O. Obalesh Arwed Vs the State of Karnataka

Sayyed S/O Husain Mulla Vs Gulab Husainsab Mujawar Since Deceased by Her Lrs. I.E.Respondent NO.1 to 4 Herein