Allowed

Sri Basappa Mallappa Hullikeri (Deceased) v. Sri Bhimappa Honnappa Vaggar

Karnataka HC5 Nov 2024MFA/102046/2022

Case brief

AI extract

What is this about?

Plaintiffs appealed against vacating an ex-parte temporary injunction in a suit for declaration of ownership and permanent injunction. The High Court found the Trial Court wrongly held plaintiffs did not approach with clean hands, since the earlier bare-injunction suit was disclosed and dismissed as not pressed. Appeal allowed; injunction restored till disposal of the suit.

What the court decided

AI extract

Sri Basappa Mallappa Hullikeri (Deceased) Vs Sri… — Property and Title | Karnataka HC (2024)

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NC: 2024:KHC-D:16171 MFA No. 102046 of 2022

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 5^TH DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE C.M. POONACHA

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MISCELLANEOUS FIRST APPEAL NO.102046 OF 2022 (CPC)

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BETWEEN:

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SRI BASAPPA MALLAPPA HULLIKERI

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SINCE DECEASED BY HIS LRS

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SMT. BASAVVA W/O. BASAPPA HULIKERI, AGE: 65 YEARS, OCC: AGRIL AND HOUSEHOLD, R/O: LINGADAL, TQ: RAMADURG, DIST: BELAGAVI, PIN CODE – 591 123.

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SMT. MALLAVVA W/O. SIDDAPPA AMARAGOL, AGE: 45 YEARS, OCC: AGRIL AND HOUSEHOLD, R/O: LAKA-NAIK KOPPA, TQ: RAMADURG, DIST: BELAGAVI, PIN CODE – 591 123.

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SMT. SIDDAAVVA W/O. PUNDALIK GIRENNAVAR, AGE: 35 YEARS, OCC: AGRIL AND HOUSEHOLD, R/O: M-KHANAPUR, TQ: RAMADURG, DIST: BELAGAVI, PIN CODE – 591 123.

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Digitally signed by SAROJA HANGARAKI Location: High Court of Karnataka

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SMT. MAHADEVI W/O. RAMANNA KURI, AGE: 32 YEARS, OCC: AGRIL AND HOUSEHOLD, R/O: KENDUR, TQ: RAMADURG, DIST: BELAGAVI, PIN CODE – 591 123.

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SRI MUTTEPPA S/O. BASAPPA HULIKERI, AGE: 29 YEARS, OCC: AGRIL, R/O: LINGADAL, TQ: RAMADURG, DIST: BELAGAVI, PIN CODE – 591 123.

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SMT. BAILAPPA S/O. BASAPPA HULIKERI, AGE: 27 YEARS, OCC: AGRIL, R/O: LINGADAL, TQ: RAMADURG, DIST: BELAGAVI, PIN CODE – 591 123.

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SMT. MAHADEV S/O. BASAPPA HULIKERI, AGE: 25 YEARS, OCC: AGRIL,

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NC: 2024:KHC-D:16171 MFA No. 102046 of 2022

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R/O: LINGADAL, TQ: RAMADURG, DIST: BELAGAVI, PIN CODE – 591 123.

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SRI SIDDALINGAPPA S/O. BASAPPA HULIKERI, AGE: 22 YEARS, OCC: AGRIL, R/O: LINGADAL, TQ: RAMADURG, DIST: BELAGAVI, PIN CODE – 591 123.

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SRI. DYAVAPPA MALLAPPA HULLIKERI, AGE: 59, OCC: AGRIL, R/O: LINGADAL, TQ: RAMADURG, DIST: BELAGAVI, PINCODE: 591 123.

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SRI MARUTI MAGUNDAPPA HULLIKERI, AGE: 30, OCC: AGRIL, R/O: LINGADAL, TQ: RAMADURG. DIST: BELAGAVI, PINCODE: 591 123.

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SRI. BASAVARAJ MAGUNDAPPA HULLIKERI, AGE: 30, OCC: AGRIL, R/O: LINGADAL, TQ: RAMADURG. DIST: BELAGAVI, PINCODE: 591 123.

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SMT. NEELAVVA W/O. SHIVAPPA HULLIKERI, AGE: 32, OCC: AGRIL & HHW, R/O: LINGADAL, TQ: RAMADURG. DIST: BELAGAVI, PINCODE: 591 123.

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SMT. SAVITA W/O. MAHADEVAPPA HAKKYAGOL, AGE: 22, OCC: AGRIL & HHW, R/O: LINGADAL, TQ: RAMADURG, DIST: BELAGAVI, PINCODE: 591 123.

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KUMARI. GANGAVVA D/O SHIVAPPA HULLIKERI, AGE: 21 OCC: AGRIL & HHW, R/O: LINGADAL, TQ: RAMADURG. DIST: BELAGAVI, PINCODE: 591 123.

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KUMARI ANNAPURNA D/O. SHIVAPPA HULLIKERI, AGE: 19, OCC: STUDENT, R/O: LINGADAL, TQ: RAMADURG, DIST: BELAGAVI, PINCODE: 591 123.

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…APPELLANTS

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(BY SRI S.B.MALLIGWAD, ADVOCATE FOR SRI SHRIDHAR HIREMATH, ADVOCATE)

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AND:

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SRI BHIMAPPA HONNAPPA VAGGAR, AGE: 51 YEARS, OCC: AGRIL., R/O: LINGADAL, TQ: RAMADURG, DIST: BELAGAVI, PIN CODE – 591 123.

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SRI. PADIYAPPA HONNAPPA VAGGAR, AGE: 46, OCC: AGRIL, R/O: LINGADAL, TQ: RAMADURG. DIST: BELAGAVI, PIN CODE – 591 123.

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SRI MARUTI HONNAPPA VAGGAR, AGE: 36, OCC: AGRIL, R/O: LINGADAL, TQ: RAMADURG, DIST: BELAGAVI, PIN CODE – 591 123.

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SRI. PADIYAPPA SHIVAPPA VAGGAR, AGE: 41, OCC: AGRIL, R/O: LINGADAL, TQ: RAMADURG. DIST: BELAGAVI, PIN CODE – 591 123.

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SRI. RAMESH SHIVAPPA VAGGAR, AGE: 36, OCC: AGRIL, R/O: LINGADAL, TQ: RAMADURG. DIST: BELAGAVI, PIN CODE – 591 123.

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SRI. YAMANAPPA SHIVAPPA VAGGAR, AGE: 23, OCC: AGRIL, R/O: LINGADAL, TQ: RAMADURG. DIST: BELAGAVI, PIN CODE – 591 123.

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…RESPONDENTS

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(BY SRI MALLIKARJUNSWAMY B. HIREMATH, ADVOCATE FOR R1 TO R6)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED U/O. 43 RULE 1(R) READ WITH 151 OF THE CODE OF CIVIL PROCEDURE, PRAYING TO, SET ASIDE THE ORDER PASSED ON I.A. NO. 1 DATED 19.02.2022 PASSED BY THE LEARNED SENIOR CIVIL JUDGE RAMDURG, IN O.S NO. 15/2016 VIDE ANNEXURE-A. ALLOW THE I.A. NO. 1 FILED BY THE PLAINTIFFS IN O.S. NO. 15/2016 DATED 19.02.2022 PENDING ON THE FILE OF SENIOR CIVIL JUDGE RAMDURG VIDE ANNEXURE-A AND ETC.,

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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NC: 2024:KHC-D:16171 MFA No. 102046 of 2022

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CORAM: THE HON'BLE MR. JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA)

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The present appeal is filed under Order XLIII Rule 1(r) R/w Section 151 of the Code of Civil Procedure, 1908¹ by the plaintiffs challenging the order dated 19.02.2022 passed in O.S.No.15/2016 by the Senior Civil Judge, Ramdurg² , whereunder the Trial Court has dismissed I.A.No.1 filed by the plaintiffs under Order XXXIX Rules 1 and 2 R/w Section 151 of CPC and allowed I.A.No.2 filed by the defendants under Order XXXIX Rule 4 of CPC and vacated the ex-parte temporary injunction dated 15.03.2016.

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The relevant facts in nutshell leading to the present appeal are that the plaintiffs instituted O.S.No.115/2015 for injunction. During the pendency of the said suit, the plaintiffs instituted O.S.No.15/2016 for declaration that the plaintiffs are the absolute and exclusive owners of the suit property and for a consequential relief of permanent injunction. Along with O.S.No.15/2016, the plaintiffs

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1 Hereinafter referred to as ‘CPC’

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2 Hereinafter referred to as ‘the Trial Court’

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also filed I.A.No.1 for grant of ad-interim injunction to restrain the defendants or their agents from interfering and obstructing with the plaintiffs’ peaceful possession and enjoyment of the suit property. The Trial Court by ad-interim order dated 15.03.2016 granted ex-parte injunction as sought for in I.A.No.1. The defendants entered appearance in the suit and contested the same by filing written statement. The defendants also filed I.A.No.2 under Order XXXIX Rule 4 of CPC to vacate the ex-parte order of temporary injunction. The Trial Court vide its order dated 19.02.2022 dismissed I.A.No.1 and allowed I.A.No.2. Being aggrieved, the present appeal is filed by the plaintiffs.

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I.A.No.1/2022 is filed in the present appeal under Order XXXIX Rule 1 and 2 of CPC for granting ex-parte order of injunction to restrain the respondents from interfering with the appellants’/plaintiffs’ peaceful possession and enjoyment of the suit property. This Court vide order dated 06.07.2022 upon a detail consideration of the relevant facts, granted an ad-interim order of temporary injunction in favour of the appellants/plaintiffs as sought for in the application.

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Heard the submissions of the learned counsel

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Sri. Santosh B Malligwad for learned counsel Sri. Shridhar Hiremath, appearing for the appellants/plaintiffs and the learned counsel Sri.Mallikarjunswamy B Hiremath, appearing for the respondents/defendants.

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The learned counsel for the appellants assailing the order passed by the Trial Court contends that the earlier suit in O.S.No.115/2015 filed by the appellants was for bare injunction and subsequently, the appellants have filed O.S.No.15/2016. That, the appellants/plaintiffs filed a memo in O.S.No.115/2015 and vide order dated 29.11.2016, the Trial

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Court on a detailed consideration, has allowed the memo and dismissed the suit as not pressed. He further contends that, in the plaint in subsequent suit, the plaintiffs have averred regarding the filing of the earlier suit as well as the order passed by the Trial Court on interim application filed in earlier suit. Hence, he contends that the observation of the Trial Court that the approach of the plaintiffs is unwarranted and they have not approached the Court with clean hands is erroneous and liable to be interfered with by this Court. It is further contended that the Trial Court having recorded a finding that the

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documents produced by the plaintiffs show that the suit property belongs to the plaintiffs and having appreciated the relevant factual matrix and having noticed that the suit property in both the suits are same, out not to have dismissed I.A.No.1 and vacated the ad-interim injunction granted in favour of the plaintiffs. Hence, he seeks for allowing the above appeal and for granting of the relief as sought for.

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Per contra, the learned counsel for the respondents, justifying the order passed by the Trial Court, contends that the Trial Court in the earlier suit while rejecting the application for injunction vide order dated 20.11.2015 has recorded a finding that the plaintiffs have not made out a prima facie case. He further contends that the plaintiffs have suppressed the said finding recorded by the Trial Court in the earlier suit and the Trial Court was justified in dismissing I.A.No.1 and allowing I.A.No.2. He further contends that the Trial Court has adequately appreciated the factual matrix and exercised its discretion in rejecting the injunction sought for, which ought not to be interfered with by this Court in the present appeal. Hence, he seeks for dismissal of the above appeal.

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The submissions of both the learned counsels

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have been considered and material on record has been perused. The question that arises for consideration is as to “whether the order dated 19.02.2022 passed by the Trial Court is liable to be interfered with”?

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It is matter on record that the earlier suit in O.S.No.115/2015 filed by the plaintiffs was for bare injunction. I.A.No.1 filed by the plaintiffs in O.S.No.115/2015 was rejected by the Trial Court vide order dated 20.11.2015. It is further relevant to note that the subsequent suit in O.S.No.15/2016 was filed for larger relief of declaration as also consequential relief of permanent injunction.

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It is forthcoming from paragraph 3 of the plaint in subsequent suit that the plaintiffs have averred regarding the filing of O.S.No.115/2015 as also the dismissal of I.A.No.1 in the said suit. It is also relevant to note that at paragraph 4 of the plaint, the plaintiffs have stated that subsequent to dismissal of I.A.No.1 in O.S.No.115/2015, the defendants have again attempted to enter upon the suit property and obstruct the plaintiffs’ possession. It is further

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relevant to note that subsequent to filing of O.S.No.15/2016, the plaintiffs have filed a memo in O.S.No.115/2015 and the Trial Court by a detail order dated 29.11.2016 held that the plaintiffs have not suppressed any facts in the subsequent suit and that the subsequent suit is a comprehensive one. Hence, the Trial Court allowed the said memo and dismissed the suit as not pressed.

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It is further relevant to note that the defendants, in the written statement filed in earlier suit, are claiming title by way of adverse possession since they having been in possession since 14.06.1976. The Trial Court while considering the claim of title, as set out by the plaintiffs, has recorded the following findings.

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“12.The hand written RTC of the suit property for 1964-65 and M.E.No.632 dated 20.06.1966 show that the suit property earlier belonged to one Hanamappa Gadigeppa Adavi. He sold it to one Basappa Ramappa Vaggar through a sale deed on 29.10.1965 as found from the said certified copy of the said sale deed and M.E.No.777 dated 26.08.1970. Then the said Basappa Ramappa Vaggar sold it to the plaintiff No.1 as found from the certified copy of the sale deed dated 28.07.1970. Now the

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NC: 2024:KHC-D:16171 MFA No. 102046 of 2022

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revenue records of it are in the names of the plaintiffs. There is no dispute from the side of the defendants to the above facts.

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13. The main dispute from the side of the defendants is that the sale deed dated 28.07.1970 does not contain the boundaries of the suit property and therefore, the boundaries of the suit property furnished in the plaint are incorrect. The perusal of the said sale deed clears the fact that the boundaries of the suit property are not mentioned. But the village map of Hiremulangi village produced by the plaintiffs show that the property bearing Sy.No.26 is bounded. by road towards east, the property bearing Sy.No.13 towards west, the property bearing Sy.No.27 towards south and the property bearing Sy.No.25 towards north. The east, west and south boundaries found in the village map are also found in the schedule of the plaint. The survey sketch produced by the plaintiff shows the boundaries of road towards east, Sy.No.13 towards west, Sy.Nos.26/5 and 26/6 towards north and Sy.No.27 towards south of the suit property. Another survey sketch shows the suit Sy.No.26 as eastern boundary of Sy.No.13/4. The hand sketch of suit property furnished by the Village Accountant of Hiremulangi village also shows the same boundaries as furnished in the schedule of the plaint. The similar hand sketches of Sy.Nos.26/6

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NC: 2024:KHC-D:16171 MFA No. 102046 of 2022

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and 27/1 show the property of the plaintiff No.1 as southern boundary of the said properties.

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14. The above documents clear the fact that the boundaries of the suit property mentioned therein are prima-faciely similar to the boundaries of the suit property furnished in the plaint. Having considered the contention of the defendants that the boundaries of the suit property mentioned herein are different from the boundaries of the property in O.S.No.115/2015, it is to be noted that east, west and south boundaries of suit property of both suit are similar. There is only variation in northern boundary. In the said suit, northern boundary is shown as the land of one Siddappa Shingadi and in the present suit, northern boundary is shown as the lands bearing Sy.No.26/5 and 26/6 belonging to Sri. Gangappa Nagappa Ghatage and Siddappa Sannappa Sanni and others respectively. The plaintiffs are to explain as to why such variation is found in northern boundary of the suit property of both suits. It is a matter of trial.

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15. But so far as the suit property of the present suit is concerned, the boundaries of the suit property mentioned in the schedule of the plaint have base from the above documents though the sale deed does disclose the boundaries. Hence, the contention of learned

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NC: 2024:KHC-D:16171 MFA No. 102046 of 2022

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counsel for the defendants that the boundaries of the suit property are incorrect cannot be accepted at this stage.”

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(Emphasis supplied)

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Hence, as noticed above, it is clear from the

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findings of the Trial Court that the boundaries as mentioned in the suit are similar and there is only variation in the northern boundary. The Trial Court has recorded a finding that the plaintiffs are the owners of the suit property while the Trial Court has considered the contention of the defendants that they are claiming title by way of adverse possession.

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The Trial Court, while noticing that earlier a suit was filed by the plaintiffs, has erroneously recorded a finding that the plaintiffs did not challenge the order dated 20.11.2015 dismissing the I.A.No.1 filed in the said suit. Further, the Trial Court has erred in recording a finding that only to overcome the order dated 20.11.2015 wherein I.A.No.1 in O.S.No.115/2015 was rejected, the subsequent suit has been filed, and that the plaintiffs have not approached the Court with clean hands. The said finding of the Trial Court is erroneous and is liable to be interfered with having regard to

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the admitted position that the earlier suit in O.S.No.115/2015 was for bare injunction and subsequent suit in O.S.No.15/2016 was a comprehensive one for declaration and consequential relief of injunction. Further, as noticed above, the plaintiffs have pleaded regarding the earlier suit as well as the dismissal of I.A.No.1 in the said suit at paragraph 3 of the plaint. Further, the plaintiffs have specifically averred regarding the subsequent cause of action.

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It is relevant to note that the Trial Court vide its order dated 15.03.2016 had granted ex- parte order of temporary injunction and the said order was in subsistence till the impugned order dated 19.02.2022 was passed. Thereafter, this Court vide order dated 06.07.2022 has granted an ad-interim temporary injunction in the present appeal, which is continued till date.

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The plaintiffs having adequately demonstrated their title to the suit property and possession of the same, it was for the defendants, who have pleaded regarding adverse possession who have not placed any material on record, to demonstrate that the plaintiffs are not in possession of the

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same. The pleading of the defendant itself tantamounts to interference of the plaintiffs’ possession and enjoyment of the suit property, which is required to be protected by this Court.

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The plaintiffs have demonstrated a prima facie case, as also that the balance of convenience lies in their favour. The plaintiffs will be put to hardship if the injunction is not granted in their favour.

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The exercise of discretion by the Trial Court in refusing the injunction is erroneous and liable to be interfered with. The Trial Court has not properly appreciated the factual matrix while considering the applications.

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In view of the aforementioned, it is just to

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pass the following:

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ORDER

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i. The above appeal is allowed.

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ii. The order dated 19.02.2022 passed in O.S.No.15/2016 by the Senior Civil Judge and JMFC, Ramdurga is set-aside.

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iii. I.A.No.1 filed by the plaintiffs under Order XXXIX Rule 1 and 2 read with Section 151 of

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NC: 2024:KHC-D:16171 MFA No. 102046 of 2022

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CPC in O.S.No.15/2016 is allowed. I.A.No.2 filed by the defendants under Order XXXIX Rule 4 of CPC in O.S.No.15/2016 is rejected.

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iv. The ex-parte order of temporary injunction dated 15.03.2016 granted by the Trial Court in O.S.No.15/2016 is confirmed and the same shall be continued till disposal of the suit.

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v. The findings recorded herein are only for the purpose of the present appeal and the Trial Court shall adjudicate the suit uninfluenced by any of the observations made herein.

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Sd/(C.M. POONACHA) JUDGE

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SSP, YAN CT-ASC List No.: 1 Sl No.: 46

Sri Basappa Mallappa Hullikeri (Deceased) v. Sri Bhimappa Honnappa Vaggar

Case brief

What is this about?

What the court decided

Sri Basappa Mallappa Hullikeri (Deceased) v. Sri Bhimappa Honnappa Vaggar

Case brief

What is this about?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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Case details

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