Disposed

Sri. Ningappa S/O Govindappa Ningaraddi v. Sri Yallappa S/O Shingadeppa Hirekumbi

Karnataka HC3 Apr 2024WP/102014/2024

Case brief

AI extract

What is this about?

Plaintiff challenged the first appellate Court's reversal of a status-quo order granted on his temporary injunction application in a property dispute. The High Court declined to interfere, noting minimal supervisory scope over discretionary interim orders, defendants' affidavit undertaking to hand over construction if plaintiff succeeds, and directed expedited trial disposal within six months.

What the court decided

AI extract

Sri. Ningappa S/O Govindappa Ningaraddi Vs Sri Yallappa… — Property and Title | Karnataka HC (2024)

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NC: 2024:KHC-D:6093 WP No. 102014 of 2024

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 3^RD DAY OF APRIL, 2024 BEFORE

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THE HON'BLE MR JUSTICE RAVI V.HOSMANI WRIT PETITION NO. 102014 OF 2024 (GM-CPC)

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BETWEEN:

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SRI NINGAPPA S/O. GOVINDAPPA NINGARADDI, AGE: 70 YEARS, OCC: AGRICULTURE, R/O. MULLUR VILLAGE, TQ: RAMDURG, DIST: BELAGAVI-591123.

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…PETITIONER

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(BY SRI B.V. SOMAPUR, ADVOCATE)

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AND:

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SRI YALLAPPA S/O. SHINGADEPPA HIREKUMBI, AGE: 46 YEARS, OCC: AGRICULTURE, R/O. MULLUR VILLAGE, TQ: RAMDURG, DIST: BELAGAVI-591123.

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SMT. MANJULA W/O. YALLAPPA HIREKUMBI, AGE: 42 YEARS, OCC: HOUSEHOLD WORK, R/O. MULLUR VILLAGE, TQ: RAMDURG, DIST: BELAGAVI-591123.

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CHANDRASHEKAR LAXMAN KATTIMANI Digitally signed byCHANDRASHEKAR LAXMAN KATTIMANI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2024.04.04 11:43:33 +0530

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…RESPONDENTS

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(BY SRI HARISH MAIGUR, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUED WRIT OF CERTIORARI SETTING ASIDE THE IMPUGNED ORDER PASSED BY THE LEARNED SENIOR CIVIL JUDGE, RAMDURGA IN M.A. NO.7/2023 DATED 18/03/2024 VIDE ANNEXURE-A AND ALLOW THE I.A. NO. 1/2023 VIDE ANNEXURE-C FILED BY PETITIONER/PLAINTIFF U/O 39 RULE 1 AND 2 IN THE SAID SUIT.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING,

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THIS DAY, THE COURT MADE THE FOLLOWING:

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2 - NC: 2024:KHC-D:6093 WP No. 102014 of 2024

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ORDER

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This writ petition is filed seeking for following relief:

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“Issued writ of certiorari setting aside the impugned order passed by the Learned Senior Civil Judge, Ramdurga in M.A. no.7/2023 dated 18/03/2024 vide Annexure-A and allow the I.A. no. 1/2023 vide Annexure-C filed by Petitioner/Plaintiff U/o 39 rule 1 and 2 in the said suit.“

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Sri B.V. Somapur, learned counsel for petitioner submitted that petitioner was plaintiff in O.S.no.162/2023 on file of Civil Judge & JMFC., Ramdurg for relief of declaration and permanent injunction. In said suit, plaintiff had filed I.A.no.1 under Order XXXIX Rule 1 and 2 of CPC for temporary injunction restraining defendants from putting up construction over suit schedule property. On consideration, trial Court had directed to maintain status-quo till disposal of suit. Aggrieved thereby, defendants filed M.A.no.7/2023, and under impugned order, first appellate Court allowed appeal and set-aside order passed by trial Court, constraining plaintiff to approach this Court.

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It was submitted, plaintiff was absolute owner of

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property bearing VPC no.365, measuring 60 ft. East to West and 100 ft. North to South out of which plaintiff had sold

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northern portion measuring 60 ft. East to West and 54 ft. North to South under registered sale deed dated 23.03.1998 in favour of one Itappa Daddi, which was renumbered as VPC no.365/A and remaining portion retained by plaintiff as VPC no.365/B. It was submitted, defendants claimed to be owners of VPC no.429/B which was totally different site. However, without any right, title and interest, they trespassed into plaintiff’s property with intention to begin construction, despite objection and opposition by plaintiff.

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It was submitted, on consideration of I.A.no.1, trial Court framed necessary points for consideration, answered them in affirmative and granted order directing parties to maintain status-quo till disposal of suit. However, without any justification, first appellate Court reversed findings. Main reason assigned that order of status-quo would lead to confusion without specific finding about party in possession was not tenable as points for consideration were answered in affirmative. There was no finding by first appellate Court that findings of trial Court on any of points framed for consideration as being contrary to records or

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perverse. It was submitted, merely on ground that defendants had proceeded with construction, permitting them to continue same would amount to permitting them to change nature of property. On above grounds, sought for quashing of order of first appellate Court.

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On other hand, Sri Harish S. Maigur, learned counsel for respondents/defendants sought to oppose petition. It was submitted, very fact that defendants had begun construction would prima facie indicate their possession. Such being case, interference by first appellate Court would be justified. It was submitted that defendants had filed application for grant of building permission. Since there was non consideration within statutory period, by operation of law, building permission was deemed granted. It was submitted that construction over suit property has already reached upto lintel level and same being lawful. It was further submitted that defendants had filed affidavit undertaking that if defendants are permitted to complete construction subject to outcome of suit, they would not claim

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equity and would handover possession of construction, in case, plaintiff were to succeed in suit.

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Heard learned counsel and perused writ petition

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record.

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From above, it is seen that petitioner herein is challenging order passed by first appellate Court reversing order passed by trial Court on application filed under Order XXXIX Rule 1 and 2 of CPC.

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In view of decisions of Hon’ble Supreme Court in Shaikh Hossain and Others Vs Shaikh Showkat Ali and Another reported in (2008) 8 Supreme Court Cases 180, scope for interference with discretionary order passed under Order XXXIX Rule 1 and 2 of CPC, in exercise of supervisory powers under Articles 226 and 227 of Constitution of India would be minimal. In Hon’ble Supreme Court in case of Mohd. Mehtab Khan and others Vs Khushnuma Ibrahim Khan and others reported in (2021) 9 SCC 221, it is held there would be no scope for

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interference even if view taken by trial Court/appellate Court were to be one of possible views.

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In light of above ratio and taking note of fact that construction by defendants had progressed upto lintel level and defendants had filed affidavit undertaking to proceed with construction subject to outcome of suit and handover possession of construction to plaintiff in case, plaintiff were to succeed in suit, it would not be appropriate to interfere with impugned order, except to incorporate conditions so as to protect interest of both parties.

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Hence, writ petition is disposed of, without interfering with impugned order, but by holding that construction put up by defendants would be subject to final outcome of suit. And in case, plaintiff succeeds in suit, defendants shall handover possession of construction to plaintiff, without claiming equity, in terms of affidavit undertaking filed in this petition.

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7 - NC: 2024:KHC-D:6093 WP No. 102014 of 2024

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Trial Court is directed to expedite disposal of suit preferably within outer limit of six months, by setting specific timeline for each stage of suit.

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Both parties are directed to cooperate for same, without seeking unnecessary adjournments.

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All contentions of both parties are kept open and observations and conclusions by trial Court and first appellate Court at time of passing impugned order shall be confined to interim stage and shall not come in way of trial Court passing appropriate judgment on basis of evidence adduced during trial.

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Sd/JUDGE

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PSG/VMP List No.: 1 Sl No.: 18

Sri. Ningappa S/O Govindappa Ningaraddi v. Sri Yallappa S/O Shingadeppa Hirekumbi

Case brief

What is this about?

What the court decided

Sri. Ningappa S/O Govindappa Ningaraddi v. Sri Yallappa S/O Shingadeppa Hirekumbi

Case brief

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What the court decided

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