Allowed

K N Praveen Kumar v. the Tahsildar

Karnataka HC21 Feb 2024WP/52831/2017

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Case brief

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What is this about?

2024:KHC:7330 WP No. 52831 of 2017 IN THE…

What did the court decide?

Impugned order dated 17.11.2017 on IA No.10 quashed; impleading application dismissed.

What the court decided

AI extract

K N Praveen Kumar Vs the Tahsildar — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC:7330 WP No. 52831 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 21^ST DAY OF FEBRUARY, 2024

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BEFORE

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THE HON'BLE MRS JUSTICE M G UMA

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WRIT PETITION NO. 52831 OF 2017 (GM-CPC)

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BETWEEN:

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K.N. PRAVEEN KUMAR S/O LATE SRI K. NONAPPA GOWDA AGED 49 YEARS, 'GANGA FARMS' KUMARAPURA, KOMBAR VILLAGE AND POST, PUTTUR TALUK D.K. - 574 230

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…PETITIONER

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(BY SRI: I. TARANATH POOJARY, SR. ADVOCATE FOR SRI: A.S. GIRISH, ADVOCATE)

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AND:

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THE TAHSILDAR PUTTUR TALUK D.K. 574 221

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Digitally signed by PAVITHRA N Location: high court of karnataka

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THE SPECIAL TAHSILDAR KADABA, 574 221 PUTTUR TALUK, D.K

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THE SECRETARY KOMBAR VILLAGE PANCHAYATH PUTTUR TALLUK, D.K. 574 230

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HONNAPPA GOWDA AGED 49 YEARS S/O PADMAIAH GOWDA R/AT AMCHOOR HOUSE HOUSE NO-1-68 SIRIBAGILU VILLAGE PUTTUR TALUK, D.K.- 574 230

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NONAYYA GOWDA AGED 54 YEARS S/O PADMAIAH GOWDA R/AT AMCHOOR HOUSE 2^ND BLOCK- 132 KOMBAR VILLAGE AND POST PUTTUR TALUK D.K. - 574 230

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K. ODIYAPPA GOWDA AGED ABOUT 52 YEARS S/O KORAGAPPA GOWDA R/AT THEREBIDI HOUSE HOUSE NO-1-66, SIRIBAGILU VILLAGE PUTTUR TALUK D.K. - 574 230

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K. BALAKRISHNA GOWDA AGED 54 YEARS S/O VEERAPPA GOWDA R/AT THEREBIDI HOUSE HOUSE NO-1-63 SIRIBAGILU VILLAGE PUTTUR TALUK D.K. - 574 230

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CHENNAPPA GOWDA AGED 53 YEARS S/O PADMAIAH GOWDA R/AT AMCHOOR HOUSE HOUSE NO-1-70 SIRIBAGILU VILLAGE PUTTUR TALUK D.K. - 574 230

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NARAYANA AGED 49 YEARS S/O KUNHANNA NAIK R/AT AMCHOOR HOUSE HOUSE NO-1-132 KOMBAR VILLAGE PUTTUR TALUK D.K. - 574 230

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3 - NC: 2024:KHC:7330 WP No. 52831 of 2017

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A. VASUDEVA AGED ABOUT 52 YEARS S/O PADMAIAH GOWDA R/AT AMCHOOR HOUSE HOUSE NO-1-68 SIRIBAGILU VILLAGE PUTTUR TALUK D.K. - 574 230.

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VASUDEVA AGED ABUT 49 YEARS S/O KORAGAPPA GOWDA R/AT THEREBIDI HOUSE SIRIBAGILU VILLAGE PUTTUR TALUK D.K. - 574 230

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JAYANANDA AGED ABOUT 30 YEARS S/O BABU GOWDA R/AT KOTTE HOUSE KOMBAR VILLAGE AND POST, PUTTUR TALUK D.K. - 574 230

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THIRTHA KUMAR AGED ABOUT 40 YEARS S/O PUTTANNA R/AT AMCHOOR HOUSE SIRIBAGILU VILLAGE PUTTUR TALUK D.K. - 574 230

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ROHITH A AGED ABOUT 27 YEARS S/O PARAMESHWARA GOWDA R/AT AMCHOOR HOUSE KOMBAR VILLAGE AND POST PUTTUR TALUK D.K. - 574 230

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SMT. PUSHPAVATHI AGED ABOUT 40 YEARS W/O PUTTANNA THEREBIDI HOUSE NO.1-64

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NC: 2024:KHC:7330 WP No. 52831 of 2017

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SIRIBAGILU, PUTTUR TALUK D.K. - 574 230

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SMT. MUTHAMMA AGED ABOUT 56 YEARS W/O LATE SUNDARA GOWDA THEREBIDI HOUSE, SIRIBAGILU PUTTUR TALUK D.K. - 574 230

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…RESPONDENTS

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(BY SRI: KUMARA B., ADVOCATE FOR SRI: KRISHNAMOORTHY D., ADVOCATE FOR R3 SRI: PRASANNA K., ADVOCATE FOR SRI: K. CHANDRANATH ARIGA, ADVOCATE FOR R4-16 SMT: ANUKANKSHA KALKERI, HCGP FOR R1 & 2, V/O DT:9/2/23)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 17.11.2017 PASSED ON I.A.NO.10 BY THE LEARNED ADDITIONAL CIVIL JUDGE AND JMFC PUTTUR IN PRESENT NEW O.S.NO.59/2016 (OLD O.S.NO.485/2014) VIDE ANNEXURE-H AND ETC.,

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING - B GROUP THIS DAY, THE COURT PASSED THE FOLLOWING:

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ORDER

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The plaintiff in OS No.59 of 2016 on the file of the learned Additional Civil Judge and JMFC, Puttur, is seeking grant of writ of certiorari to quash the order dated 17.11.2017 allowing IA.10 filed under Order I Rule 10(2) read with Section 151 of CPC, permitting respondent Nos.4 to 16 to be impleaded as defendant Nos.4 to 12 and 14 to 17.

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NC: 2024:KHC:7330 WP No. 52831 of 2017

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Heard Sri I Taranath Poojary, learned senior advocate along with Sri A S Girish, learned counsel for the petitioner, Smt Anukanksha Kalkeri, learned High Court Government Pleader for respondent Nos.1 and 2, Sri B Kumara, learned counsel for respondent No.3 and Sri K Prasanna, learned counsel for respondent Nos.4 to 16. Perused the materials on record.

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Learned senior advocate for the petitioner contended that the petitioner as plaintiff filed the suit originally numbered as OS No.485 of 2014, re-numbered as OS No.59 of 2016 now pending on the file of the learned Additional Civil Judge and JMFC, Puttur, seeking permanent injunction against defendant Nos.1 to 3. The schedule property is Sy.No.48/1B measuring 1.76 acres situated at Kombar Village, Puttur Taluk with the boundaries mentioned therein. The defendants have filed the written statement admitting the possession and enjoyment of the schedule property by the plaintiff. They pleaded ignorance about the contention taken by the plaintiff that the schedule property is surrounded by fence and there is alternative way for the villagers. It is specifically contended that the defendants do not have any intention to remove the

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fence put up by the plaintiff around the schedule property or to form a road. With these averments, the defendants are contesting the suit.

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Learned senior advocate contended that respondent Nos.4 to 16 have filed the application under Order I Rule 10(2) of CPC seeking their impleadment. It is contended that there is a pathway from Sy.No.49/1 of Komabar village, which passes through Sy.No.22/1 which is a Government land and the villagers are having easementary right over the same. The plaintiff illegally encroached the Government land bearing Sy.No.22/1 and has put up the fence. It is also stated that temporary injunction was granted in respect of Sy.No.48/1B, but it will effect Sy.Nos.49/1 and 22/1. Hence, to avoid multiplicity of proceedings, the application was filed. The said application was considered by the Trial Court and proceeded to allow the same re-iterating the contention taken by the impleading applicants that the plaintiff was not granted the land in question. The pathway is running in Sy.No.22/1 and the plaintiff has encroached the portion of the said property and put up fence and therefore, the said encroachment has to be curbed and accordingly, the applicants were permitted to be

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impleaded. The reasons assigned by the Trial Court are perverse and illegal. Therefore, the petitioner is before this Court.

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Learned senior advocate contended that when the applicants are not claiming any right over the schedule property in a suit for bare injunction, they could not have been impleaded. When they do not claim any right over the schedule property and they referred to some other survey numbers and contend that the plaintiff has encroached the Government land, no enquiry could be held in respect of the same. It will change the nature of suit and it will expand its scope. Under such circumstances, the petitioner pays for allowing the petition while setting aside the impugned order.

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Per contra, learned counsel for respondent Nos.4 to 16 submitted that specific contention is raised by the applicants regarding their right over the pathway running through Sy.Nos.49/1 and 22/1 and to avoid multiplicity of proceedings, the application came to be filed. He further submitted that in all earlier proceedings, these applicants were parties and deliberately they were not impleded in the present suit. Hence,

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the application is filed. He further submitted that even though the Writ Petition No.52245 of 2014 was filed by the petitioner challenging the notice issued for joint survey to determine the encroachment of Government land in Sy.No.22/1, the same came to be dismissed and no relief was granted in favour of the petitioner. Under such circumstances, the writ petition is liable to be dismissed.

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Learned High Court Government Pleader for respondent Nos.1 and 2 and learned counsel for respondent No.3 submits that they could not file any objections and they will file objections, if time is granted. Prayer is rejected.

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The plaintiffs filed the suit OS No.485 of 2014 for permanent injunction which was later renumbered as OS No.59 of 2016. The schedule appended to the plaint describes Sy.No.48/1B measuring 1.76 acres situated at Kombar Village,

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Puttur Taluk with the boundaries mentioned therein. In the entire plaint there is no reference to Sy.No.49/1 of Kombar village and Sy.No.22/1 of Siribagilu village, which is referred to by applicants in their impleading application. Defendant Nos.1 to 3 are the Tahsildar, Puttur Taluk, the Special Tahsildar,

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Kadaba and Secretary of Kombar Gram Panchayat. They have filed the written statement admitting the possession of the schedule property by the plaintiff. They pleaded ignorance about the fence put up around the property or existence of alternative way, but denied the contention of the plaintiff that they are having any intention to remove fence or claim right over the schedule property.

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The application IA.10 was filed by respondent Nos.4 to 16 to implead themselves in the suit. The affidavit accompanying the application discloses that they are claiming right of way over Sy.No.49/1 of Kombar village and Sy.No.22/1 of Siribagilu village, by claiming right of easement. The applicants also contended that the petitioner has encroached the Government land in Sy.No.22/1 and put up fence by digging the pit. It is not in dispute that notice was issued by the Revenue Authority to the plaintiff to conduct survey in Sy.No.22/1 belonging to the Government to find out the encroachment on the part of the plaintiff, if any. The said notice was challenged by the petitioner by filing Writ Petition No.52245 of 2014. It is stated that the said petition is already disposed off.

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NC: 2024:KHC:7330 WP No. 52831 of 2017

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According to the plaintiff, the petition was allowed and the notice was quashed, but according to respondent Nos.4 to 16, the petition came to be dismissed. Be that as it may, the same is nothing to do with the present suit for permanent injunction sought in respect of Sy.No.48/1B measuring 1.76 acres. If the plaintiff has encroached any portion of the Government land, the Revenue Authority can definitely initiate action to clear the encroachment of the property. But if the applicants are having any right over Sy.Nos.49/1 and 22/1 by way of easementary, they are entitled to claim the same in accordance with law. But they cannot be permitted to be impleaded in the present suit, which is only for perpetual injunction, where the cause of action alleged is only against respondent Nos.1 to 3. The applicants cannot be permitted to be impleaded, as the same would expand the scope and the nature of the suit. Under such circumstances, I am of the opinion that the said application is liable to be dismissed.

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I have gone through the impugned order passed by the Trial Court. The Trial Court without considering any of these facts and circumstances proceeded to allow the application solely on the ground that since there is allegations

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against the plaintiff that he has encroached Sy.No.22/1 which is a Government land, such encroachment is to be curbed and therefore, the applicants are to be impleaded for a full fledged

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trial. The Trial Court lost sight of the fact that it is purely outside the scope of the suit pending before it. Hence, I am of

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the opinion that the impugned order is liable to be quashed.

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12. Accordingly, I proceed to pass the following:

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ORDER

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(i) The writ petition is allowed.

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(ii) The order dated 17.11.2017 passed in new OS No.59 of 2016 (Old OS No.485 of 2014) on the file of the learned Additional Civil Judge and JMFC, Puttur, is hereby quashed. Consequently, IA No.10 filed under Order I Rule 10(2) read with Section 151 of CPC is dismissed.

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Sd/JUDGE

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*bgn/List No.: 1 Sl No.: 2 -

K N Praveen Kumar v. the Tahsildar

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K N Praveen Kumar v. the Tahsildar

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