Allowed

Prakash S/O Gangappajotennavar v. Yallappa S/O Siddappa Udinavar

Karnataka HC22 Jun 2024WP/101294/2023

Case brief

AI extract

What is this about?

A pendente lite purchaser suing for bare injunction challenged concurrent orders rejecting his temporary-injunction application under Order 39 Rules 1 and 2 CPC. The High Court held Section 11 and Section 52 were wrongly applied, quashed both orders and directed the trial court to re-hear the application after considering additional documents.

What did the court decide?

Orders dated 07.01.2023 (M.A.No.16/2022) and 24.08.2022 (I.A.No.1 in O.S.No.195/2022) quashed; trial court to re-hear the injunction application within two months.

Prakash S/O Gangappajotennavar Vs Yallappa S/O Siddappa… — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:8397 WP No. 101294 of 2023

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 22^ND DAY OF JUNE, 2024 BEFORE

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THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM WRIT PETITION NO. 101294 OF 2023 (GM-CPC)

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BETWEEN:

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PRAKASH S/O. GANGAPPA JOTENNAVAR, AGE: 40 YEARS, OCC: AGRICULTURE, R/O. BILAKUNDI, TQ: GOKAK, DIST: BELAGAVI.

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…PETITIONER

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(BY SRI. SANTOSH B. MALLIGAWAD, ADVOCATE)

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AND:

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YALLAPPA S/O. SIDDAPPA UDINAVAR, AGE: 50 YEARS, OCC: AGRICULTURE, R/O. HONAKUPPI, TQ: MUDALAGI, DIST: BELAGAVI-590001.

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ASHPAK KASHIMSA MALAGALADINNI Location: HIGH COURT OF KARNATAKA, DHARWAD BENCH

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KALLOLEPPA S/O. SIDDAPPA UDINAVAR, AGE: 48 YEARS, OCC: AGRICULTURE, R/O. HONAKUPPI, TQ: MUDALAGI, DIST: BELAGAVI-590001.

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HANAMANT S/O. SIDDAPPA UDINAVAR, AGE: 46 YEARS, OCC: AGRICULTURE, R/O. HONAKUPPI, TQ: MUDALAGI, DIST: BELAGAVI-590001.

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MALLAVVA W/O. KALLOLEPPA UDINAVAR, AGE: 45 YEARS, OCC: AGRICULTURE, R/O. HONAKUPPI, TQ: MUDALAGI, DIST: BELAGAVI-590001.

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KAMALAVVA

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2 - NC: 2024:KHC-D:8397 WP No. 101294 of 2023

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W/O. YALLAPPA UDINAVAR, AGE: 47 YEARS, OCC: AGRICULTURE, R/O. HONAKUPPI, TQ: MUDALAGI, DIST: BELAGAVI-590001.

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SHIVAKKA HANAMANT UDINAVAR, AGE: 46 YEARS, OCC: AGRICULTURE, R/O. HONAKUPPI, TQ: MUDALAGI, DIST: BELAGAVI-590001.

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…RESPONDENTS

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(BY SRI. VINAY S. KOUJALAGI, ADV. FOR R1, R3-R6; R2-NOTICE DISPENSED WITH)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI QUASHING THE ORDER DATED 07/01/2023 PASSED BY LEARNED I ADDITIONAL SENIOR CIVIL JUDGE GOKAK IN M.A. NO.16/2022 VIDE ANNEXURE-K; ISSUE A WRIT IN THE NATURE OF CERTIORARI QUASHING THE ORDER DATED 24/08/2022 ON I.A.NO.I PASSED BY LEARNED CIVIL JUDGE AND JMFC, GOKAK IN O.S. NO.195/2022 VIDE ANNEXURE-H.

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

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ORDER

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The captioned petition is filed by the plaintiff assailing

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the concurrent orders of the Courts below, wherein, the present petitioner’s application filed under Order 39 Rules 1 and 2 of CPC, seeking injunction against the respondents is rejected by both the Courts on the premises that, the petitioner is a pendente lite purchaser.

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3 - NC: 2024:KHC-D:8397 WP No. 101294 of 2023

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Heard the learned counsel for the petitioner, learned counsel for the respondents and perused the order under challenge.

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The petitioner has filed a bare suit for injunction in O.S.No.195/2022. The petitioner/plaintiff is tracing his title over the possession of the suit property through one Lagaleppa Lagali. The petitioner contends that, one Lalgaleppa Lagali was the original owner of the suit schedule property and he sold it in favour of one Ningappa Kumbar under a registered sale deed in the year 1990. The said Ningappa Kumbar instituted a suit for injunction simplicitor in O.S.No.333/1998 against the predecessor of the present respondents. The petitioner/plaintiff claims that, the suit is decreed and the respondents’ ancestors preferred an appeal in R.A.No.31/2009 which is dismissed.

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The petitioner/plaintiff alleges that, the present respondents to overcome the decree granted in O.S.No.333/1998 filed a suit in O.S.No.616/2010 and sought interim injunction. The petitioner/plaintiff also contends that, the said application filed by the respondents in

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4 - NC: 2024:KHC-D:8397 WP No. 101294 of 2023

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O.S.No.616/2010 is rejected by taking cognizance of the decree granted in O.S.No.333/1998. The first purchaser i.e. Kumbar whose possession was upheld in O.S.No.333/1998 has sold the suit property to the present petitioner under a registered sale deed dated 12.10.2021.

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The petitioner herein has instituted the present suit in O.S.No.195/2022 and injunction is sought against the respondents. Learned Judge taking cognizance of the pendency of O.S.No.616/2010 has declined to grant injunction on the premises that, the decree passed in O.S.No.338/1998 is in operation and therefore, the present suit is hit by Section 11 of CPC. Learned Judge by applying Section 11 of CPC has rejected the application.

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The appellate Court has gone one step further and dismissed the miscellaneous appeal on the premises that, the petitioner’s sale deed is hit by Section 52 of Transfer of Property Act. Prima-facie, both the orders passed by the Courts below are found to be contrary to the records. The petitioner is tracing title through one Kumbar whose suit for injunction is decreed. Therefore, the learned Judge has

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5 - NC: 2024:KHC-D:8397 WP No. 101294 of 2023

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erred in applying Section 11 of CPC. There is no conflict of title insofar as the petitioner and Kumbar are concerned. The petitioner/plaintiff is tracing his right and title through Kumbar and therefore, Section 11 of CPC is not applicable. Similarly, the provision of Section 52 is also not applicable on the premises that, the respondents herein have filed a bare suit for injunction in O.S.No.616/2010 against the vendors of the petitioner herein.

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The finding of both the Courts that, the plaintiff has not substantiated and made out a prima-facie case by producing cogent documents is also perverse. The petitioner has not only placed on record his title document, but has also produced the title deeds of his vendors.

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Per contra, the respondents contend that, this suit property is granted by the Gram Panchayat and was acquired from the Lagali family i.e. the vendor of the petitioner herein and in turn granted to respondent Nos.4 to 6 herein. The trial Court has not meticulously examined the prima-facie materials placed by the rival parties to the suit. It appears that, both the parties have also not placed

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6 - NC: 2024:KHC-D:8397 WP No. 101294 of 2023

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relevant documents and there is no proper assistance by the counsels on record and therefore, in all probabilities, the learned Judge has not taken cognizance of these relevant significant details culled out supra. Both the orders under challenge suffer from serious material irregularities as both the Courts have applied wrong provisions while rejecting the petitioner’s application.

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For the foregoing reasons, this Court passes the

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following:

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ORDER

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(i) The writ petition is allowed;

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(ii) The order dated 07.01.2023 passed by the learned I Additional Senior Civil Judge, Gokak in M.A.No.16/2022 vide Annexure-K and order dated 24.08.2022 on I.A.No.1 passed by the learned Civil Judge and JMFC Court, Gokak in O.S.No.195/2022 vide Annexure-H are hereby quashed;

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7 - NC: 2024:KHC-D:8397 WP No. 101294 of 2023

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(iii) The petitioner and respondents shall place on record additional documents to substantiate their claim;

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(iv) Learned Judge shall re-hear the application after taking cognizance of the prima-facie material placed by both the parties;

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(v) This application shall be heard and decided within a period of two months from the date of receipt of the copy of this order.

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(vi) Pending I.As. if any, does not survive for consideration. Accordingly, the same are dismissed.

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Sd/JUDGE

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SVH

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List No.: 1 Sl No.: 3

Prakash S/O Gangappajotennavar v. Yallappa S/O Siddappa Udinavar

Case brief

What is this about?

What did the court decide?

Prakash S/O Gangappajotennavar v. Yallappa S/O Siddappa Udinavar

Case brief

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What did the court decide?

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