Dismissed

Sri. M. D. Bettegowda @ Chandregowda v. M. N. Manjunathagowda

Karnataka HC25 Jul 2024WP/40437/2017

Case brief

AI extract

What is this about?

Judgment debtors challenged two executing court orders in an injunction-decree execution, citing resurvey disputes over land identification. The High Court found no plea of overlap was ever raised, the declaration suit had failed and attained finality, and held the objections were an abuse of process, imposing exemplary costs and dismissing both writ petitions.

What the court decided

AI extract

Sri. M. D. Bettegowda @ Chandregowda Vs M. N… — Execution and Attachment | Karnataka HC (2024)

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NC: 2024:KHC:29261 WP No. 40437 of 2017 C/W WP No. 58119 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25^TH DAY OF JULY, 2024

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BEFORE

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THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 40437 OF 2017 (GM-CPC)

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C/W

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WRIT PETITION NO. 58119 OF 2018 (GM-CPC) IN WP NO.40437/2017

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BETWEEN:

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SRI. M. D. BETTEGOWDA @ CHANDREGOWDA S/O. LATE DEVEGOWDA, AGED ABOUT 56 YEARS, R/AT G. AGRAHARA, MARBYLU VILLAGE, GONIBIDU HOBLI, MUDIGERE TALUK, DISTRICT CHIKMAGALURU.

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Digitally signed by MEGHA MOHAN

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Location: HIGH COURT OF KARNATAKA

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SRI. M. D. YELLAPPAGOWDA S/O. LATE DEVEGOWDA, AGED ABOUT 60 YEARS, R/AT G. AGRAHARA, MARBYLU VILLAGE, GONIBIDU HOBLI, MUDIGERE TALUK, DISTRICT CHIKMAGALURU.

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M. C. NAVEENKUMAR S/O.M. D. BETTEGOWDA @ CHANDREGOWDA, AGED ABOUT 40 YEARS, R/AT G. AGRAHARA, MARBYLU VILLAGE, GONIBIDU HOBLI, MUDIGERE TALUK, DISTRICT CHIKKAMAGALURU.

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M. C. SANDEEP

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NC: 2024:KHC:29261 WP No. 40437 of 2017 C/W WP No. 58119 of 2018

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S/O. M. D. BETTEGOWDA @ CHANDREGOWDA, AGED ABOUT 38 YEARS, R/AT G. AGRAHARA, MARBYLU VILLAGE, GONIBIDU HOBLI, MUDIGERE TALUK, DISTRICT CHIKKAMAGALURU.

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…PETITIONERS

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(BY SRI. VIVEK SUBBA REDDY, SENIOR COUNSEL A/W SRI. S V DESAI., ADVOCATE V/O DTD 12.02.2024 PETITION AGAINST P2 IS DISMISSED AS ABATED)

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AND:

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M. N. MANJUNATHAGOWDA S/O. NINGEGOWDA, AGED ABOUT 45 YEARS, R/O. MAREBYLE, G. AGRAHARA VILLAGE, GONIBEEDU POST, MUDIGERE TALUK, DISTRICT CHIKKAMAGALURU.

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…RESPONDENT

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(BY SRI. SANTOSH S GOGI., ADVOCATE)

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THIS W.P. IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DTD 02.06.2017 VIDE ANNX-H PASSED ON I.A.NO.10/2007 IN EXECUTION PETITION NO.10/2007 PASSED BY THE ADDL CIVIL JUDGE & JMFC, MUDIGERE AND ETC.

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IN WP No.58119/2018

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BETWEEN:

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SRI M D BETTEGOWDA @ CHANDREGOWDA S/O LATE DEVEGOWDA AGE. ABOUT 70 YEARS R/A G AGRAHARA MARBYLU VILLAGE GONIBIDU HOBLI MUDIGERE TALUK DIST- CHIKMAGALURU PIN CODE-577 132

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SRI M D YELLAPPAGOWDA S/O LATE DEVEGOWDA AGED ABOUT 73 YEARS R/A G AGRAHARA MARBYLU VILLAGE GONIBIDU HOBLI MUDIGERE TALUK DIST- CHIKMAGALURU PIN CODE-577 132

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M C NAVEENKUMAR S/O M D BETTEGOWDA @ CHANDREGOWDA AGED ABOUT 41 YEARS R/A G AGRAHARA MARBYLU VILLAGE GONIBIDU HOBLI MUDIGERE TALUK DIST- CHIKMAGALURU PIN CODE-577 132

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M C SANDEEP S/O M D BETTEGOWDA @ CHANDREGOWDA AGED ABOUT 39 YEARS R/A G AGRAHARA MARBYLU VILLAGE GONIBIDU HOBLI MUDIGERE TALUK DIST- CHIKMAGALURU PIN CODE-577 132

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…PETITIONERS

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(BY SRI. VIVEK SUBBA REDDY, SENIOR COUNSEL A/W SRI. DESAI S V., ADVOCATE FOR P1 VIDE ORDER DTD 12.02.2024 PETITION AGAINST DECD P2 IS DISMISSED AS ABATED)

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AND:

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M N MANJUNATHAGOWDA S/O NINGEGOWDA AGED ABOUT 56 YEARS R/O MAREBYLE, G AGRAHARA VILLAGE GONIBEEDU POST,

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MUDIGERE TALUK DIST. CHIKMAGALURU PIN CODE-577 132

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…RESPONDENT

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(BY SRI. SANTOSH S GOGI., ADVOCATE)

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THIS WP IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DT 21.12.2018 (ANNEXURE-U) PASSED ON MAIN EXECUTION PETITION IN EXECUTION PETITIN NO.10/2007 PASSED BY THE ADDITIONAL CIVIL JUDGE & JMFC, MUDIGERE AND DISMISS THE SAID EXECUTION PETITION AND ETC.

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THESE PETITIONS, COMING ON FOR FURTHER HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

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ORAL ORDER

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(PER: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI)

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These two writ petitions are arising out of the orders dated 2.6.2017 and 21.12.2018 passed in execution proceedings in EP.No.10/2007 on the file of Additional Civil Judge and JMFC, Mudigere.

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The petitioners herein are the defendants/ judgment debtors and the respondent herein is the plaintiff/ decree holder in the execution. They are referred to as they are arrayed before the executing Court.

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The plaintiff had filed a suit for injunction i.e., OS No.223/1997 for restraining the defendants from interfering

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with the suit schedule property i.e., 3 acres of coffee land in Sy.No.126P of G.Agrahara village. It is the case of the plaintiff that the defendants without any manner of right, title or title have been interfering with his possession. The defendants entered appearance and filed the written statement. Defendant No.1 filed the written statement stating that though a grant is given in favour of the plaintiff, the plaintiff is not cultivating the suit property. He has not fenced the suit property all around with barbed wire. It is stated that when the possession of the suit property has been disputed, the suit for mere injunction is not maintainable. It is stated by defendant No.1 in the written statement that he has encroached an extent of 4 acres of land in Sy.No.126 of Agrahara village. He has grown coffee, cardamom, banana, pepper, orange etc., in the said property which was adjacent to each other and brought them in common boundary and fenced all around.

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The Trial Court by judgment and decree dated 7.3.2002 has decreed the suit for injunction, wherein the Trial Court has given a finding that defendant No.1 has admitted that Sy.No.126 is not pakka phoded. At once stretch the defendant No.1 contended that the plaintiff’s land has not been

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pakka phoded. It is highly impossible to identify the suit property without the correct boundary as Sy.No.126P is measuring more than 100 acres of land, which is a vast area. In another stretch, defendant No.1 contended that he had purchased 7 acres of land from one Lakshminarayana which is also in the said Sy.No.126/P. It is observed that how he identifies the said land without pakka phoded. Defendant No.1 cannot blow hot and cold at one stretch. Defendant No.1 has furnished the boundaries in the written statement A, B, C schedule properties. But the said boundaries are not depicting in the sale deed, which was produced by defendant No.1. The Trial Court has also observed that it creates doubt whether defendant No.1 is in possession of the ‘B’ and ‘C’ written statement schedule properties within the boundaries stated by defendant No.1 and held that the plaintiff is in possession of the property. The Trial Court has also further observed that the contention of defendant No.1 itself shows his interference in the suit property. Defendant No.1 is claiming that he is in possession of the suit property as he has encroached it. He has categorically stated that he is the owner of the suit property. The contention of defendant No.1 itself reveals that he is

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interfering in the suit property and accordingly, the suit was decreed granting injunction in favour of the plaintiff. Against that, the defendants had filed RA No.115/2006 which came to be dismissed on 27.10.2006. Thereafter, they filed RSA No.1475/2007 before this Court which also came to be dismissed on 18.9.2008. In that, this Court had given a liberty to the defendants to file a suit for declaration.

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Thereafter, defendant No.1 has filed OS No.133/2010 seeking declaration. In the declaration suit, it is mentioned that the cause of action for the said suit arose in the year 2008. In the said suit, he has shown A, B, C schedule properties and sought to declare that he is the absolute owner of the ‘C’ schedule property having acquired title to it by way of adverse possession and the defendant therein cannot evict/disposes the plaintiff therein from ‘C’ schedule property in the declaratory suit without following the due procedure of law; to declare that the land granted by the 3^rd defendant - Deputy Commissioner to the 4^th defendant dated 30.9.1984 and later pakka phoded so as to bring the ‘C’ schedule property, is null and void and the same has to be set aside; and to declare that the judgment and decree passed in OS No.223/1997 on the file

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of the Principal Civil Judge, which is confirmed in RA No.115/2006 and in RSA No.1475/2007 by the High Court cannot be executed so as to evict/dispossess the plaintiff therein from ‘C’ schedule property therein. The said suit came to be dismissed by judgment and decree dated 6.8.2014.

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In the said suit i.e., OS No.133/2010, the issues

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that were framed by the Trial Court are;

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i. Whether the plaintiff proves that he is the absolute owner of the suit C schedule property having acquired the same by way of adverse possession?

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ii. Whether the plaintiff proves that he is in possession and enjoyment of the suit C schedule property?

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iii. Whether the plaintiff proves that the grant of the land by the 3^rd defendant to the 4^th defendant vide order dated 30.9.1984 as per the saguvali chit No.1/1997-98 and later pakka phoded so as to bring the same within the C schedule property is null and void and the same is liable to be set aside?

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iv. Whether the plaintiff proves that judgment and decree passed in OS No.223/1997 on the file of

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the Principal Civil Judge (Jr.Dn) at Mudigere confirmed in RA No.115/2006 and in RSA No.1475/2007 dated 18.9.2008 on the of the High Court of Court cannot be executed?

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v. Whether the suit is not properly valued and the Court fee paid in insufficient?

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vi. Whether the suit is not maintainable?;

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vii. Whether the suit is barred by principles of res judicata?

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On the first issue i.e., whether plaintiff therein has perfected his title by way of adverse possession, the Trial Court has observed about his plea of adverse possession and the suit i.e., OS No.223/1997 filed by the plaintiff claiming the relief of permanent injunction and about the other further orders i.e., in RA and RSA, which was confirmed. The Trial Court has further observed that when the plaintiff therein is seeking his title by way of adverse possession against the government, he should establish his continuous and uninterrupted possession over the suit schedule property for a period of 30 years, but the plaintiff therein himself has categorically admitted in paragraph 6 of the plaint that an extent of 3 acres of land was granted by the Government in favour of the 4^th defendant/plaintiff in OS

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No.223/1997 by an order dated 30.9.1984 and issued saguvali chit in favour of the 4^th defendant and on the basis of the said saguvali chit, the 4^th defendant filed a suit for permanent injunction. The Trial Court having recorded all these findings i.e., continuous possession of the property for 30 years cannot

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be accepted and further held that the question of the plaintiff therein acquiring his title to the property by way of adverse possession will not arise. The Trial Court on issue No.3 has observed that about an extent of 3 acres granted to the 4^th defendant (plaintiff in OS No.223/1997) on 30.9.1984 and the Court has also observed that the plaintiff (in OS No.133/2010) has not chosen to question the said order before the competent authority and accordingly, dismissed the suit for declaration. Aggrieved by the same, defendant No.1 has filed RA No.75/2014, which came to be dismissed on 20.2.2018 and no further appeal is preferred against the said order and that has attained finality.

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The Execution Petition No.10/2007 was filed to execute the decree in OS No.223/1997. In that, the judgment debtors have filed objections, wherein they have stated that the judgment cannot be executed. Except the said stand, they

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have not taken any other ground with regard to the execution. They have also filed an application i.e., IA.No.10 in the execution proceedings under Section 47 read with 151 of the CPC praying the Court to dismiss the execution petition as the decree in OS No.223/1997 is obtained by misrepresentation

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and suppressing the material facts and is not executable and unenforceable in the eye of law. It is stated that it is the case of the decree holder that the judgment debtors are trying to cause damage to the fence of the suit schedule property and has sought for police help for fencing the suit land, which clearly shows that he is not at all in possession of the suit property. If the decree holder was in actual possession, he would not have sought for any police help to fence the land. This shows that he wants to get into the property and as the decree holder has obtained the decree by misrepresenting the facts with fraudulent documents, the said decree is a nullity in the eye of law and is unenforceable and unacceptable and does not survive for consideration.

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The executing Court has considered the contention

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of the decree holder and dismissed IA.No.10 by observing that the spectrum of the provision under Section 47 of the CPC does

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not allow the executing Court to go beyond the decree and it cannot evaluate the decree, whereas it is provided to decide any incidental question which arises while executing the decree. Therefore, the application under Section 47 read with Section 151 of the CPC by the judgment debtors is not acceptable and from the records it is clear that the judgment debtors are prolonging the matter by filing litigation at different stages of appeal, which shows that the judgment debtors are not ready to obey the decree of the competent Court. Therefore, IA.No.10 needs to be dismissed and accordingly, dismissed the same. Against the said order, WP No.40437/1917 is filed.

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WP No.58119/2018 is filed against the order passed on IA.No.1 filed in the execution proceedings, wherein the decree holders have sought to send the judgment debtors to the civil prison as they have violated the decree passed in OS No.223/1997 and the Trial Court by order dated 21.12.2018 has allowed the said application and held that the judgment debtors have violated the decree and directed to issue arrest warrant by 18.1.2019. In this writ petition, a coordinate bench of this Court has granted stay of all further proceedings.

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In the Writ Petition filed before this Court, certain documents are placed before this Court, which are communications between the Revenue Department with regard to the original survey number is 126 and thereafter, the new survey number that is assigned is 807 and how there is discrepancy in identifying the land.

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Learned Senior Counsel appearing for the petitioners/defendants/judgment debtors submits that in the guise of executing the decree, the decree holder is interfering with the possession of the judgment debtors/defendant No.1 in respect of his grant of 4 acres of land. He submits that now by virtue of this re-survey, the blocks are overlapping with that of the land of the judgment debtors and this aspect was not considered by the Trial Court. The learned Senior Counsel submits that as far as the schedule pertaining to the suit for injunction or the ‘C’ schedule i.e., in the declaratory suit, the defendant No.1 is not coming in the way of the Court, but his property which is the granted land of 4 acres, which is in his possession is going to be affected. As such, the executing Court ought to have taken the said issue into consideration. But the

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executing Court without considering all these facts and executability of the decree, issued the arrest warrant.

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Learned Senior Counsel has drawn the attention of this Court to the proceedings dated 27.9.2016 i.e., the letter addressed by the Assistant Commissioner to the Tahsildar that there is some dispute with regard to this survey numbers and the re-survey that is done. Then he had relied on proceedings i.e., the letter addressed by the Tahsildar to the Assistant Commissioner dated 1.12.2016, letter dated 7.10.2016 addressed by the Tahsildar to the Assistant Director of Land Records, letter dated 27.12.2017 by the Tahsildar to the Assistant Director of Land Records, then on 10.9.2016 the Assistant Commissioner addressed a letter to the Tahsildar, stated that the reasons for 9 grantees by examining the entire Dharakast Register, saguvali chiti has been issued for all, if not, what is the reason for not issuing Saguvali chit, why pakka phodi has not been done for all the grantees, the grantees who obtained saguvali chiti who are not in possession and violated the Land Grant Rules and conditions, examine by verifying the original documents of Dharakhast and submit the same and they are sending back the file to the office of the Tahsildar.

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Placing reliance on these documents, the learned Senior Counsel submits that there is a clear dispute with regard to the identification of the land and without considering all these issues, the executing Court ought not to have issued the arrest warrant, when the decree itself is not executable in the light of the boundaries being in dispute and with regard to the resurvey as the original survey number is 106 and new survey number is 807, there is a clear overlapping which the internal correspondence of the revenue department disclose the same. It is also submitted that after the decree is passed, after the resurvey, Sy.No.807 has been allotted for the said land. The decree holder has not produced any document with regard to the re-survey and the change of survey number from 126P to 807. It is further submitted that at one stretch the plaintiff is saying that he is in possession of the property, but when it comes to the execution petition, he has filed the petition as if he is seeking recovery of possession which shows that he is not in possession of the property. He submits that the writ petitions have to be allowed.

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The learned counsel appearing for the

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respondent/decree holder submits that the decree which is

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obtained in the year 2007, could not be executed even till now. He submits that at every step the judgment debtors are interfering with the execution of the decree. It is submitted that when the execution petition is filed in the year 2007 in respect of the schedule property in the suit for injunction, the judgment debtors have filed a suit for declaration with respect to the very same property and that came to be dismissed. Now when the execution is filed, the judgment debtors have come before the executing Court and say that they have filed an application under Section 47 of the CPC that the said decree is not an executable one. It is submitted that while passing the order the executing Court should have imposed exemplary cost as the judgment and decree that has attained finality, without any valid reasons, it cannot be said that such a decree is not executable, which clearly shows the intention of the defendants in trying to frustrate the decree that is granted by the Trial Court, which has been confirmed till the High Court in the second appeal. It is submitted that in the suit for declaration, defendant No.1 mentioned about the suit for permanent injunction and also the liberty that is granted to him in respect of the very same property in the second appeal to file a suit for

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declaration and all the averments clearly show that he is referring to the suit schedule property. He submits that if there is any dispute with regard to the survey or identification, by 2007 already new number was allotted and from that date till now he has never went before the revenue authorities. When defendant No.1 knows about this even at that time also, he has not approached the revenue authorities. The learned counsel submits that this conduct of the judgment debtors shows that only with an intention to frustrate the decree that is granted, they have been coming up with one application or the other and the Writ Petition has to be dismissed with costs.

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Having heard the learned Senior Counsel for the petitioner and learned counsel for the respondent, perused the entire material on record.

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According to the plaintiff, there was a grant in his favour in respect of the suit property. When defendants were interfering with his peaceful possession and hence, he has filed a suit for injunction. According to defendant No.1, he has been in possession of an extent of 4 acres granted land and over and above of his land he has encroached some land and he has

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been in possession of the same. When the Trial Court decreed the suit for injunction, there is a clear finding by the Trial Court saying that it is the case of defendant No.1 that he has encroached some of the land and considering this fact, the Court decreed the suit for injunction and that was carried till the second appeal. In the second appeal, he has sought for a liberty to file a suit for declaration. Then the declaration suit is filed. Learned Senior Counsel appearing for the petitioners tries to make a distinction that ‘C’ schedule property in the suit for permanent injunction and the suit for declaration is not one and the same. The cause of action for them arose when this Court had given them liberty to file a suit for declaration. In the entire plaint i.e., in the declaration suit all the averments are pertaining to the suit for injunction, what are the findings of the Courts and about what has happened. Even in the suit for declaration also they have stated about the encroachment. Then, the Trial Court has given a finding that defendants/defendant No.1 cannot seek adverse possession and for that he has to be in possession of the property for a period of 30 year and as per his own averments, the grant is in favour of defendant No.1. A close perusal of the judgment and

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decree that is passed in the declaratory suit clearly reveals that the entire dispute either in the permanent injunction suit or in the declaratory suit is with regard to the defendants/judgment debtors encroachment with regard to the property. In the said suit/declaratory suit, an issue was also framed ie., whether the

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judgment and decree in the injunction suit which has attained finality till RSA, is executable or not. On all the counts the suit

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is decreed. Against that defendant No.1 has preferred an appeal and the appeal is also dismissed. Now, when the execution petition is filed in the year 2007, at any point of time it is not their case that the grant which is given to them in respect of 4 acres of land is overlapping with that of the suit schedule property. The defendants had never taken such a

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stand either before the Trial Court or before this Court. Without taking any plea, they have placed certain documents before the Trial Court and that the same documents are placed before this Court and extensive arguments are advanced. This Court either from the documents or from the arguments is not able to understand whether the case of the judgment debtors is with regard to the 4 acres of land which is granted or about his encroached land, which is the subject matter of the declaratory

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suit or the subject matter of the injunction suit. By passing some documents or filing some documents without there being a plea, the Court cannot consider the same because the parties are governed by their pleadings and any amount of evidence that is led in, is of no consequence. The execution which is filed in the year 2007 even till 2024 could not be taken to any logical end and the manner in which the judgment debtors have filed an application under Section 47 of the CPC that the judgment and decree which is confirmed by the first appellate Court and with the leave from the Court the declaration suit is filed, cannot come up before the Court and say that the said decree is not executable, this conduct of the defendants/JDRs right from the beginning and even in the earlier judgment also

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the Trial Court has observed that the defendants are trying to blow hot and cold at the same time, is the clear abuse of process of law whereby the judgment debtors are trying to take advantage and are coming up with one application or the other.

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This kind of applications cannot be entertained and in the considered opinion of this Court, this is a case where exemplary costs have to be imposed for abusing the process of the Court and for stalling the execution proceedings. If it is the case of

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defendant No.1 that irrespective of the suit land, his other land which is unconnected is going to be affected in the execution, they should have brought it to the notice of the Court and at all

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times the Courts would have considered the same. But unfortunately, he has never stated so, by way of pleadings before the Court except filing some documents and even after that also, he has never gone to the revenue authorities. Considering the judgment and decree in the injunction suit and the declaration suit, the findings in both the judgments makes it very clear that the grounds put forth by the defendant/JDR has no legs to stand and only for the purpose of litigation the JDR is fighting the litigation.

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In the light of the above discussion, both the Writ Petitions are dismissed.

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All IA’s in the writ petition shall stand closed.

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SD/(LALITHA KANNEGANTI) JUDGE

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ND/List No.: 1 Sl No.: 5

Sri. M. D. Bettegowda @ Chandregowda v. M. N. Manjunathagowda

Case brief

What is this about?

What the court decided

Sri. M. D. Bettegowda @ Chandregowda v. M. N. Manjunathagowda

Case brief

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What the court decided

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