Dismissed

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

Karnataka HC16 Aug 2023WP/487/2021

Case brief

AI extract

What is this about?

Two writ petitions filed by the plaintiffs and the defendants in opposing civil suits challenging the Appellate Court’s judgment confirming an interim order. The High Court held that no material warrants interference with the lower court’s decision.

What did the court decide?

Writ petitions filed by both plaintiffs and defendants were dismissed, affirming the judgment of the Additional District and Sessions Judge.

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

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1 - NC: 2023:KHC:29033 WP No. 487 of 2021 C/W WP No. 558 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S.G.PANDIT WRIT PETITION NO. 487 OF 2021 (GM-CPC)

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C/W

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WRIT PETITION NO. 558 OF 2021 (GM-CPC)

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W.P.NO. 487 OF 2021

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BETWEEN:

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SRI B V KUMAR

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

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SRI B V RAGHU RAM

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S/O LATE B S VENKATA SUBBA RAO AGED ABOUT 61 YEARS

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

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

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

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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.

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SRI B V JAGADEESH

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@ BAGALURU V RAO JAGADEESH

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

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SRI B V MURALIDHAR

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S/O LATE B S VENKATA SUBBA RAO

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AGED ABOUT 55 YEARS RESIDING AT NO.6898 VILLAWOODY, SAN JOSE CA-95120 UNITED STATES OF AMERICA.

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THE PETITIONER NO.3 AND 4 ARE REP. BY THEIR GPA HOLDER SRI B V KUMAR @ BAGALURU VENKATA SUBBA RAO KUMAR.

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SMT. JAYAMMA W/O SRI MUNIEKEMPAIAH AGED ABOUT 66 YEARS RESIDING AT BAGALURU VILLAGE BAGALURU POST, JALA HOBLI YELAHANKA TALUK-560064.

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…PETITIONERS

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(BY SRI VIJAYA KUMAR K., ADV.)

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AND:

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SRI MUNIYAPPA S/O LATE SRI BYRAPPA AGED ABOUT 87 YEARS

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SRI DODDA VEERAPPA S/O LATE SRI BYRAPPA AGED ABOUT 80 YEARS

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

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…RESPONDENTS

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(BY SRI V.F. KUMBAR, ADV. FOR R1 & R2)

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THIS PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS IN M.A.NO.15023/2019 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.15023/2020 (IMPUGNED AS ANNEXURE-A) IN SO FAR AS IT RELATES TO CONFIRMING THE ORDER PASSED ON I.A.NO.3, AND CONSEQUENTLY DISMISS I.A.NO.3 FILED BY THE RESPONDENTS UNDER ORDER 39 RULE 1 AND 2, R/W SECTION 151 OF THE CPC, IN O.S.NO.10/2020.

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W.P.NO. 558 OF 2021

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BETWEEN:

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SRI MUNIYAPPA S/O LATE BYRAPPA AGED ABOUT 87 YEARS

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SRI DODDA VEERAPPA S/O LATE BYRAPPA AGED ABOUT 80 YEARS

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

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…PETITIONERS

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

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AND:

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SRI B V KUMAR

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

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

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THE 2^ND PETITIONER IS OF UNSOUND MIND

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REP. BY HIS NATURAL GUARDIAN SRI B V KUMAR @ BAGALURU VENKATA SUBBA RAO KUMAR AGED ABOUT 63 YEARS WHO IS 1^ST RESPONDENT HEREIN

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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.

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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.

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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.

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

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SMT. JAYAMMA W/O SRI MUNIKEMPAIAH AGED ABOUT 72 YEARS RESIDING AT BAGALURU VILLAGE BAGALURU POST, JALA HOBLI YELAHANKA TALUK BENGALURU-562149.

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…RESPONDENTS

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(BY SRI VIJAYA KUMAR K., ADV.)

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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.15023/2020 ON IA NO.02, VIDE ANNX-F.

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

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ORDER

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W.P.No.487/2021 is filed by the defendants in

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O.S.No.10/2020 on the file of Senior Civil Judge and JMFC,

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Devanahalli, challenging a portion of judgment dated 23.11.2020 in M.A.No.15023/2020 confirming the order passed on I.A.No.3 filed under Order 39 Rules 1 and 2 read with Section 151 of CPC. Whereas in W.P.No.558/2021, the plaintiffs in O.S.No.10/2020 are

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before this Court, questioning a portion of the judgment dated 23.11.2020 in M.A.No.15023/2020 by which,

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I.A.No.2 filed under Order 39 Rules 1 and 2 read with Section 151 of CPC directing the defendants not to alienate is rejected.

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Heard learned counsel Sri.Vijayakumar K for petitioners/defendants and learned counsel

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Sri.V.F.Kumbar for plaintiff Nos.1 and 2 respondents. Perused the writ petition papers.

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Rank of the parties is referred to as they stood in O.S.No.10/2020 for the purpose of better understanding of the case.

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Learned counsel for the petitioners/defendants would submit that the suit schedule property was re-granted to the father of 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 favor of defendant No.5 under registered sale deed dated 28.08.2019 which is placed on

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record as Annexure-H in W.P.No.487/2021. 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 the ownership of 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 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 regrant 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 the absence of said averments, they cannot claim adverse possession against true owners.

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Thus, he prays for allowing the writ petition, by setting aside the order of status-quo passed by the trial Court confirmed by the Appellate court.

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Per contra, learned counsel Sri.V.F.Kumbar appearing for the respondents/plaintiffs would submit that the plaintiffs were before the trial Court praying for declaration of title by adverse possession and he submits that column No.12(2) of RTC shows the name of plaintiffs till 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 had applied for electricity connection from the Board and also having taken 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. Therefore, he submits that whether the plaintiffs are in permissive possession or

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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.15023/2020.

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Learned counsel Sri.V.F.Kumbar, referring to the portion of the judgment whereby the Appellate Court set aside the order on I.A. No.2 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 filed by the plaintiffs and to restrain the defendants from alienating the suit schedule property.

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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.

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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

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by way of adverse possession. Under I.As No.2 and 3, the plaintiffs have sought for ad-interim injunction, restraining the defendants from interfering with the plaintiffs’ peaceful possession and enjoyment of the suit schedule property 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 regranted 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 read with 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 read with Section

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151 of CPC. It is relevant at this stage to note what is stated in the objection filed by defendant No.5 to I.A.Nos.2 and 3. At paragraph 7 of the objection, defendant No.5 had admitted that the plaintiffs are in permissive possession and they cannot claim possession adverse to the defendants.

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The plaintiffs have placed on record the RTC up to the year 2015-16 and column No.12(2) of the RTC shows the name of the plaintiffs in the cultivation column. Further, the plaintiffs have also placed on record the receipt issued by the Electricity Board and I.P. number which reflects the name of the plaintiffs. Prima-facie , the above two 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 prima-facie case and allowed I.As.No.2 and 3 filed under Order XXXIX Rules 1 and 2 of

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CPC directing both the parties to maintain status-quo as well as restrained the defendants from alienating the suit schedule property.

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The Appellate Court was of the view that there was no need to restrain the defendants from alienating the suit property since the status-quo would also include alienating the suit property.

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Learned counsel for the petitioners/defendants submitted that no material is placed on record to prove the possession of the respondents/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. But the other contentions of the defendants are issues for trial.

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For the reasons recorded above, the writ petitions filed by the plaintiffs as well as defendants are dismissed, affirming the judgment passed in M.A.No.15023/2020 on

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NC: 2023:KHC:29033 WP No. 487 of 2021 C/W WP No. 558 of 2021

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14 -

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the file of the V Additional District and Sessions Judge,

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Bangalore Rural District at Devanahalli.

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Sd/JUDGE

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

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

Case brief

What is this about?

What did the court decide?

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

Case brief

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