Dismissed

Sri B v. Kumar @ Bagaluru Venkata Subba Rao Kumar v Smt Krishnamma

Karnataka HC16 Aug 2023WP/415/2021

Case brief

AI extract

What is this about?

The High Court heard two connected writ petitions under Articles 226 and 227 seeking to set aside conflicting interim orders regarding a suit for declaration of title and injunction. Dismissing both petitions, the Court held that since the matter involves disputing ownership and requires full trial, no interim order should be made until the existing order is challenged in the main suit.

What did the court decide?

Writ petitions filed by both plaintiffs and defendants were dismissed; judgment in M.A.No.15022/2020 affirmed.

Sri B v Kumar @ Bagaluru Venkata Subba Rao Kumar Vs Smt… — Property and Title | Karnataka HC (2023)

¶1

1 - NC: 2023:KHC:29033 WP No. 415 of 2021 C/W WP No. 471 of 2021

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 16^TH DAY OF AUGUST, 2023

¶4

BEFORE

¶5

THE HON'BLE MR JUSTICE S.G.PANDIT

¶6

WRIT PETITION NO.415 OF 2021 (GM-CPC)

¶7

C/W

¶8

WRIT PETITION NO. 471 OF 2021 (GM-CPC)

¶9

W.P.NO. 415 OF 2021

¶10

BETWEEN:

¶11

SRI B V KUMAR

¶12

@ BAGALURU VENKATA SUBBA RAO KUMAR S/O LATE B S VENKATA SUBBA RAO AGED ABOUT 63 YEARS

¶13

SRI B V RAGHU RAM

¶14

S/O LATE B S VENKATA SUBBA RAO

¶15

AGED ABOUT 61 YEARS

¶16

Digitally signed by A K CHANDRIKA Location: High Court of Karnataka

¶17

THE 2^ND PETITIONER IS OF UNSOUND MIND REP. BY HIS NATURAL GUARDIAN SRI B V KUMAR

¶18

@ BAGALURU VENKATA SUBBA RAO KUMAR WHO IS 1^ST PETITIONER HEREIN

¶19

THE PETITIONERS NO.1 AND 2 ARE R/AT NO.78/41, 11^TH MAIN 14^TH CROSS, PADMANABHANAGARA BANASHANKARI 2^ND STAGE BENGALURU-560070.

¶20

SRI B V JAGADEESH

¶21

@ BAGALURU V RAO JAGADEESH AGED ABOUT 58 YEARS

¶22

S/O LATE B S VENKATA SUBBA RAO

¶23

2 - NC: 2023:KHC:29033 WP No. 415 of 2021 C/W WP No. 471 of 2021

¶24

RESIDING AT NO.14232 SHADY OAK COURT SARATOGA, CA950570 UNITED STATES OF AMERICA.

¶25

SRI B V MURALIDHAR S/O LATE B S VENKATA SUBBA RAO AGED ABOUT 55 YEARS RESIDING AT NO.6898 VILLAWOODY, SAN JOSE CA-95120 UNITED STATES OF AMERICA.

¶26

THE PETITIONER NO.3 AND 4 ARE REP. BY THEIR GPA HOLDER SRI B V KUMAR

¶27

@ BAGALURU VENKATA SUBBA RAO KUMAR.

¶28

SMT. JAYAMMA W/O SRI MUNIKEMPAIAH AGED ABOUT 66 YEARS RESIDING AT NO.226 BAGALURU VILLAGE BAGALURU POST, JALA HOBLI YELAHANKA TALUK-560064.

¶29

…PETITIONERS

¶30

(BY SRI VIJAYA KUMAR K., ADV.)

¶31

AND:

¶32

SMT. KRISHNAMMA W/O LATE D MARIYAPPA AGED ABOUT 63 YEARS

¶33

SRI DEREGOWDA S/O LATE D MARIYAPPA AGED ABOUT 38 YEARS

¶34

SRI DARSHAN S/O LATE D MARIYAPPA AGED ABOUT 16 YEARS

¶35

3 - NC: 2023:KHC:29033 WP No. 415 of 2021 C/W WP No. 471 of 2021

¶36

RESPONDENT NO.3 IS MINOR REP. BY HIS MOTHER SMT. KRISHNAMMA

¶37

SRI D NARAYANAPPA S/O LATE DODDA APPAYANNA AGED ABOUT 80 YEARS

¶38

SRI D SHAMANNA S/O LATE DODDA APPAYANNA AGED ABOUT 78 YEARS

¶39

SRI D GOPALAPPA S/O LATE DODDA APPAYANNA AGED ABOUT 65 YEARS

¶40

ALL ARE RESIDING AT MAHADEVAKODIGEHALLI VILLAGE JALA HOBLI, YELAHANKA TALUK BENGALURU-562149.

¶41

…RESPONDENTS

¶42

(BY SRI V.F. KUMBAR, ADV.)

¶43

THIS PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS IN M.A.NO.15022/2019 FROM THE FILE OF THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT, AT DEVANAHALLI, AND SET ASIDE THE ORDER DATED 23.11.2020 PASSED IN M.A.NO.15022/2020 (IMPUGNED AS ANNEXURE-A) IN SO FAR AS IT RELATES TO CONFIRMING THE ORDER PASSED ON I.A.NO.4, AND CONSEQUENTLY DISMISS I.A.NO.4 FILED BY THE RESPONDENTS UNDER ORDER 39 RULE 1 AND 2, R/W SECTION 151 OF THE CPC, IN O.S.NO.9/2020.

¶44

¶45

NC: 2023:KHC:29033 WP No. 415 of 2021 C/W WP No. 471 of 2021

¶46

W.P.NO. 471 OF 2021

¶47

BETWEEN:

¶48

SMT. KRISHNAMMA W/O LATE D MARIYAPPA AGED ABOUT 62 YEARS

¶49

SRI DEREGOWDA S/O LATE D MARIYAPPA AGED ABOUT 38 YEARS

¶50

SRI DARSHAN S/O LATE D MARIYAPPA AGED ABOUT 16 YEARS

¶51

SINCE MINOR

¶52

REP. BY NATURAL GUARDIAN MOTHER SMT. KRISHNAMMA (1^ST PETITIONER HEREIN)

¶53

SRI D NARAYANAPPA S/O LATE DODDA APPAYANNA AGED ABOUT 80 YEARS

¶54

SRI D SHAMANNA S/O LATE DODDA APPAYANNA AGED ABOUT 78 YEARS

¶55

SRI D GOPALAPPA S/O LATE SRI DODDA APPAYANNA AGED ABOUT 65 YEARS

¶56

ALL ARE RESIDING AT MAHADEVAKODIGEHALLI VILLAGE JALA HOBLI, YELAHANKA TALUK BENGALURU-560064.

¶57

(BY SRI V.F. KUMBAR, ADV.)

¶58

…PETITIONERS

¶59

5 - NC: 2023:KHC:29033 WP No. 415 of 2021 C/W WP No. 471 of 2021

¶60

AND:

¶61

SRI B V KUMAR

¶62

@ BAGALURU VENKATA SUBBA RAO KUMAR S/O LATE B S VENKATA SUBBA RAO AGED ABOUT 63 YEARS

¶63

SRI B V RAGHU RAM S/O LATE B S VENKATA SUBBA RAO AGED ABOUT 61 YEARS

¶64

THE 2^ND PETITIONER IS OF UNSOUND MIND REP. BY HIS NATURAL GUARDIAN SRI B V KUMAR @ BAGALURU VENKATA SUBBA RAO KUMAR AGED ABOUT 63 YEARS WHO IS 1^ST RESPONDENT HEREIN

¶65

THE RESPONDENT NO.1 AND 2 ARE R/AT NO.78/41, 11^TH MAIN 14^TH CROSS, PADMANABHANAGARA BANASHANKARI 2^ND STAGE BENGALURU-560070.

¶66

SRI B V JAGADEESH @ BAGALURU V RAO JAGADEESH S/O LATE B S VENKATA SUBBA RAO AGED ABOUT 58 YEARS RESIDING AT NO.14232 SHADY OAK COURT SARATOGA, CA950570 UNITED STATES OF AMERICA.

¶67

SRI B V MURALIDHAR S/O LATE B S VENKATA SUBBA RAO AGED ABOUT 55 YEARS RESIDING AT NO.6898 VILLAWOODY, SAN JOSE CA-95120 UNITED STATES OF AMERICA.

¶68

6 - NC: 2023:KHC:29033 WP No. 415 of 2021 C/W WP No. 471 of 2021

¶69

THE RESPONDENT NO.3 AND 4 ARE REP. BY THEIR GPA HOLDER SRI B V KUMAR S/O LATE B.S. VENKATA SUBBA RAO

¶70

SMT. JAYAMMA W/O SRI MUNIKEMPAIAH AGED ABOUT 72 YEARS RESIDING AT BAGALURU VILLAGE

¶71

BAGALURU POST, JALA HOBLI YELAHANKA TALUK-562149.

¶72

…RESPONDENTS

¶73

(BY SRI VIJAYA KUMAR K., ADV.)

¶74

THIS PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 23.11.2020, PASSED BY THE V ADDL. DISTRICT AND SESSIONS JUDGE, DEVANAHALLI, BENGALURU RURAL DISTRICT IN MA NO.15022/2020 ON IA NO.03, VIDE ANNX-F.

¶75

THESE PETITIONS, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

¶76

ORDER

¶77

W.P.No.415/2021 is filed by the defendants in

¶78

O.S.No.9/2020 on the file of Senior Civil Judge and JMFC, Devanahalli, questioning the judgment dated 23.11.2020

¶79

rejecting the order passed on I.A.No.3 and confirming the

¶80

order passed on I.A.No.4 filed under Order 39 Rules 1 and 2 read with Section 151 of CPC. Whereas in

¶81

¶82

NC: 2023:KHC:29033 WP No. 415 of 2021 C/W WP No. 471 of 2021

¶83

W.P.No.471/2021, the plaintiffs in O.S.No.9/2020 are before this Court, questioning a portion of the judgment dated 23.11.2020 in M.A.No.15022/2020 by which, I.As.No.3 and 4 filed under Order 39 Rules 1 and 2 read with Section 151 of CPC directing the defendants not alienate is rejected.

¶84

Heard learned counsel Sri.Vijayakumar K for petitioners/defendants and learned counsel Sri.V.F.Kumbar for plaintiff Nos.1 and 2/respondents. Perused the writ petition papers.

¶85

Rank of the parties is referred to as arrayed in O.S.No.09/2020 for the purpose of better understanding of the case.

¶86

Learned counsel for the petitioners/defendants would submit that the suit schedule property was re-granted to the father of petitioners/defendants No.1 to 4 i.e., Sri.Venkata Subba Rao on 30.10.1981 under Karnataka Village Officers Inam Abolition Act and thereafter, defendant Nos.1 to 4 sold the suit schedule property in

¶87

8 - NC: 2023:KHC:29033 WP No. 415 of 2021 C/W WP No. 471 of 2021

¶88

favor of defendant No.5 under registered sale deed dated 28.08.2019 which is placed on record as Annexure-H in W.P.No.415/2021 Learned counsel would submit that suit of the plaintiffs is one for declaration of title having perfected their title by way of adverse possession and permanent injunction. Learned counsel would submit that the plaintiffs have admitted ownership of the defendants, when they claim declaration on the basis of adverse possession. Learned counsel would further submit that no material is placed on record to establish the possession of the plaintiffs. On the other hand, he submits that the revenue records stand in the name of defendant No.5 in pursuance of the sale deed dated 28.08.2019. Learned counsel also submits that the plaintiffs’ suit for declaration of adverse possession without challenging the sale deed; without challenging re-grant and without challenging change of revenue records in their name would not be maintainable. Learned counsel would also submit that in the entire suit, the plaintiffs have not stated as to when they entered possession of the suit schedule property. In

¶89

9 - NC: 2023:KHC:29033 WP No. 415 of 2021 C/W WP No. 471 of 2021

¶90

the absence of said averments, they cannot claim adverse possession against true owners. Thus, he prays for allowing W.P.No.415/2021, by setting aside the order of status-quo passed by the trial Court confirmed by the Appellate court.

¶91

Per contra, learned counsel Sri.V.F.Kumbar appearing for the plaintiffs in O.S.No.9/2020 would submit that the plaintiffs are before the trial Court praying for declaration of title by adverse possession and he submits that column No.12(2) of RTC shows the names of these plaintiffs upto 2016 and thereafter behind the back of the plaintiffs, revenue entries are changed. Further, he submits that to establish possession of the plaintiffs, the plaintiffs have applied for electricity connection for irrigation pump set connection in the schedule property. Further, learned counsel referring to paragraph 7 of the counter affidavit filed by the defendants would submit that the defendants have admitted the possession of the plaintiffs by stating that they are in permissive possession.

¶92

10 - NC: 2023:KHC:29033 WP No. 415 of 2021 C/W WP No. 471 of 2021

¶93

Therefore, he submits that whether the plaintiffs are in permissive possession or otherwise has to be decided in the suit. Thus, he prays for dismissal of the writ petition filed by the defendants challenging a portion of the order by which, status-quo order is confirmed under judgment dated 23.11.2020 in M.A.No.15022/2020.

¶94

Learned counsel Sri.V.F.Kumbar, referring to a portion of the judgment whereby the Appellate Court set aside the order on I.A.No.3 submits that the trial Court having come to the conclusion that the plaintiffs have made out prima facie case had restrained the defendants from alienating or creating third party rights, but the Appellate Court without there being any reason having accepted the order passed by the trial Court with regard to status-quo in respect of possession, ought not to have set aside the order restraining alienation by defendants. Thus, he prays for allowing the writ petition No.471/2021 filed by the plaintiffs and to restrain the defendants from alienating the suit schedule property.

¶95

11 -

¶96

NC: 2023:KHC:29033 WP No. 415 of 2021 C/W WP No. 471 of 2021

¶97

While considering the application filed under Order XXXIX Rules 1 and 2 of CPC, at the first instance, the Court shall have to find out as to whether there is primafacie case; whether there is triable issue and whether nongranting of prayer sought in the application would result in irreparable injury. It is also necessary to find out the balance of convenience while granting or non-grating of interim order. Moreover, normally, interim order would be granted in the aid of final relief sought in the suit.

¶98

The suit of the plaintiffs is to declare that the plaintiffs are absolute owners in possession of the suit schedule property having perfected their title by way of adverse possession and for permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit schedule property. Unless one admits ownership of the other side, declaration on the basis of adverse possession cannot be claimed, which means, the plaintiffs herein admit the ownership of defendants and they are claiming ownership

¶99

12 -

¶100

NC: 2023:KHC:29033 WP No. 415 of 2021 C/W WP No. 471 of 2021

¶101

by way of adverse possession. Under I.As No.3 and 4, the plaintiffs have sought for ad-interim injunction, restraining the defendants from interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiffs and also for ad-interim temporary injunction, restraining defendants No.1 to 5 from alienating or creating third party rights over the suit schedule property. Defendants No.1 to 4 claim that the suit schedule property is re-granted to their father under the Karnataka Village Officers Inam Abolition Act and defendants Nos.1 to 4 sold the suit schedule property in favour of defendant No.5 under a registered sale deed dated 28.08.2019. While considering the applications under Order XXXIX Rules 1 and 2 and Section 151 of CPC, restraining the defendants not to interfere with the plaintiffs’ peaceful possession and enjoyment of the property, the Court shall have to find out prima facie possession of the parties over the suit schedule property. It is for the parties to prove their possession at the stage of considering the applications filed under Order XXXIX Rules 1 and 2 and Section 151 of

¶102

13 - NC: 2023:KHC:29033 WP No. 415 of 2021 C/W WP No. 471 of 2021

¶103

CPC. It is relevant at this stage to note what is stated at paragraph 7 of the objection filed by defendant No.5 to I.A.Nos.3 and 4 wherein defendant No.5 had admitted that the plaintiffs are in permissive possession and they cannot claim possession adverse to the defendants.

¶104

It is submitted that upto the year 2015-16, column No.12(2) of the RTC shows the name of the plaintiffs in the cultivation column. Further, the plaintiffs have contended that Doddappayyanna had dug well and a borewell for which he had applied for electricity connection. Prima-facie , the documents as well as statement of defendant No.5 would establish the possession of plaintiffs. The trial Court, considering the above stated documents and the contention of defendant No.5 at paragraph 7 of her objection has rightly come to the conclusion that the plaintiffs have not made out primafacie case and allowed I.As.No.3 and 4 filed under Order XXXIX Rules 1 and 2 of CPC read with Section 151 of CPC directing both parties to maintain status-quo as well as

¶105

14 -

¶106

NC: 2023:KHC:29033 WP No. 415 of 2021 C/W WP No. 471 of 2021

¶107

restraining the defendants from alienating the suit schedule property.

¶108

The Appellate Court has observed that the trial Court having granted status-quo in respect of the suit schedule property, was of the view that there was no need to restrain the defendants from alienating the suit schedule property since the status-quo would also include alienation of the suit schedule property.

¶109

Learned counsel for the defendants submitted that no material is placed on record to prove the possession of the plaintiffs and that relief of declaration would not be maintainable without consequential prayers, challenging the sale deed and revenue records. As observed above, the plaintiffs have prima-facie proved their possession by adverse possession. But the other contentions of the defendants are issues for trial.

¶110

For the reasons recorded above, the writ petitions filed by the plaintiffs as well as defendants are dismissed,

¶111

NC: 2023:KHC:29033 WP No. 415 of 2021 C/W WP No. 471 of 2021

¶112

15 -

¶113

affirming the judgment passed in M.A.No.15022/2020 on the file of the V Additional District and Sessions Judge, Bangalore Rural District at Devanahalli.

¶114

Sd/JUDGE

¶115

MPK CT:bms List No.: 1 Sl No.: 62

Sri B v. Kumar @ Bagaluru Venkata Subba Rao Kumar v Smt Krishnamma

Case brief

What is this about?

What did the court decide?

Sri B v. Kumar @ Bagaluru Venkata Subba Rao Kumar v Smt Krishnamma

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

Sri B N Muralidhara Vs Smt Byramma K

Sri Vinay Kumar Vs Smt.Mangala

Ilyaz Ahmed Vs Smt Raheema Begum

Sri B v Kumar @ Bagaluru Venkata Subba Rao Kumar Vs Sri Muniyappa

Zahirabi @ Fahimunnisa Vs Shamshad Begum

M Kempaiah Vs M.Jyothiprakasam