Manjappashetty Vs Smt Sarvamangalamma

REPRESENTED BY GPA HOLDER HEMANTH KUMAR S.M. S/O MANJAPPASHETTY AGED ABOUT 44 YEARS R/AT HULUVALE VILLAGE , VASTHARE POST CHIKKAMAGALURU TALUKA CHIKKAMAGALURU DISTRICT-577101.

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DECEASED REP. BY LR'S.

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SMT. NAGARATHNAMMA W/O LATE MANJAPPA SHETTY AGED ABOUT 55 YEARS OCC: AGRICULTURIST AND HOUSE WIFE R/OF. HULUVALE VILLAGE VASTARE HOBLI CHIKKAMAGALURU TQ & DIST-577101.

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SRI. HEMANTH KUMAR S/O LATE MANJAPPA SHETTY AGED ABOUT 45 YEARS OCC: AGRICULTURIST R/OF. HULUVALE VILLAGE VASTARE HOBLI CHIKKAMAGALURU TQ & DIST-577101.

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HC-KAR

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SMT. GAYATHRI D/O LAT MANJAPPA SHETTY W/O SHANKAREGOWDA AGED ABOUT 40 YEARS OCC : HOUSE HOLD WORK R/OF. BOMMANAHALLI HULUVALE VILLAGE, VASTARE HOBLI CHIKKAMAGALURU TQ & DIST-577101.

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[AMENDED AS PER V/O/DTD:04.02.2025]

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…PETITIONERS

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(BY SRI. N.S. BHAT, ADV.,)

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AND:

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SMT. SARVAMANGALAMMA W/O LATE MANJAPPASHETTY AGED ABOUT 80 YEARS R/AT HULUVALE VILLAGE VASTHARE POST CHIKKAMAGALURU TALUKA CHIKKAMAGALURU DISTRICT-577101.

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SIDDARAJU S/O LATE MANJAPPASHETTY R/AT HULUVALE VILLAGE VASTHARE POST CHIKKAMAGALURU TALUKA CHIKKAMAGALURU DISTRICT 577101.

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…RESPONDENTS

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(BY SRI. BALU MAHENDRA Y.H. ADV., FOR R1 & R2 [ABSENT])

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THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI QUASHING THE IMPUGNED ORDER DATED 13.02.2019 IN M.A.NO.28/2018 PASSED BY THE II ADDL. SENIOR CIVIL JUDGE AND JMFC AT CHIKKAMAGALURU AS PER ANENXURE-F AND CONSEQUENTLY TO RESTORE THE ORDER DATED 13.12.2018 PASSED BY THE COURT OF THE 2ND ADDL. CIVIL JUDGE AND JMFC AT CHIKKAMAGALURU IN O.S.NO.476/2018 ON I.A.NO.1 VIDE ANNEXURE-D & ETC.

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NC: 2025:KHC:23641 W.P. No.14995/2019

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HC-KAR

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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ORAL ORDER

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This petition is filed seeking following reliefs:

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"i) Issue a Writ in the nature of certiorari quashing the impugned order dated 13-02-2019 in M.A.No.28/2018 passed by the II Addl. Senior Civil Judge and JMFC at Chikkamagaluru as per Annexure F and consequently to restored the order dated 1312-2018 passed by the Court of the 2^nd Addl. Civil Judge and JMFC at Chikkamagaluru in O.S.No.476/2018 on IA.No.I vide AnnexureD.

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ii) Issue any other Writ, order or direction as deemed fit and proper in the facts and circumstances of the case, including the cost of the Writ Petition, in the interest of justice and equity."

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2. Sri.N.S.Bhat, learned counsel appearing for the

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petitioners submits that petitioner/plaintiff filed a suit against the respondents for permanent injunction with regard to the suit schedule property. It is submitted that the suit schedule property was allotted to the petitioner/plaintiff by registered family partition between

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HC-KAR

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the family members dated 17.03.1979 and the petitioners are in possession of 00-06 guntas of land in suit schedule property, which consists of dwelling house and front yard. It is submitted that the respondents have filed suit for declaration and possession over the suit schedule property in O.S.No.331/2004, which came to be dismissed. Later, an appeal in RA.No.59/2010, filed by the respondents was also came to be dismissed. It is further submitted that the petitioner/plaintiff has filed an application in IA.No.1 under

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Order XXXIX Rules 1 and 2 of CPC seeking temporary injunction against the respondents and the trial Court considering the orders passed in O.S.No.331/2004 and RA.No.59/2010, allowed the application and granted temporary injunction in favour of the petitioner/plaintiff against the respondents. The said order of the trial Court was challenged in the appeal and the Appellate Court, without appreciating the material on record reversed the finding and set aside the order of the trial Court granting the temporary injunction. Being aggrieved, this writ

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HC-KAR

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petition is filed. It is also submitted that the Appellate Court has exceeded its scope and recorded its findings without appreciating the material placed before it. It is submitted that this Court on 11.06.2020 directed the parties to maintain status quo and the same is in force. Hence, he seeks to continue the said interim order till disposal of the suit, which would help the parties to continue with the suit. Hence he seeks to allow the petition.

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There is no representation for the respondents

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today as well as on previous dates of hearing.

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I have heard the arguments of the learned counsel appearing for the petitioners and meticulously perused material available on record. I have given my anxious considerations to the submissions advanced by the learned counsel for the petitioners.

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It is undisputed fact that the petitioner/plaintiff

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has filed suit in O.S.No.476/2018. In the said suit, the

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HC-KAR

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relief was sought for permanent injunction against the respondents herein with regard to the suit schedule property. The suit schedule property consists of 00-06

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guntas of land situated in Sy.No.106/4 at Huluvale Village, Vasthare Hobli,

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Chikmagalur Taluk. In the said suit, the petitioner/plaintiff filed an application under Order XXXIX Rules 1 and 2 seeking temporary injunction on the ground that the respondents are interfering with the peaceful possession of the petitioner/plaintiff. The trial Court considering the pleadings, submissions and material placed before it, has allowed the said application vide order dated 13.12.2018 by recording a clear finding that the petitioner/plaintiff is an absolute owner in possession of the suit schedule property and there is a prima facie case made out by him. The trial Court came to its conclusion after considering the family partition dated 17.03.1979 as well as the judgments and decree passed in O.S.No.331/2004 and RA.No.59/2010. The O.S.No.331/2004 was filed by the

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HC-KAR

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respondents against the petitioner/plaintiff seeking declaration and possession which came to be dismissed. Later the appeal filed by the respondents also came to be dismissed in R.A.No.59/2010. The Appellate Court reversed the said finding in MA.No.28/2018, vide order dated 13.02.2019 by recording the finding that the respondents are in possession of suit schedule property and held that the petitioner/plaintiff suppressed the facts with regard to the challenge by the respondents with regard to the khata before the Assistant Commissioner at Chikkamagaluru in RA.No.79/2016-17 and by considering the photographs placed before it. Be that as it may, no purpose would be served by considering the impugned order at this stage and there is no representation for the respondents in the present proceedings and this Court on 11.06.2020 passed the following order:

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"The matter was listed yesterday i.e. on 10.06.2020 and the learned counsel for the petitioner was present and addressed his arguments. However, the caveator remained absent. To give an opportunity to the caveator to make his submission the matter is listed today, i.e. on 11.06.2020. The caveator is not present.

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HC-KAR

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Learned counsel for the petitioner submits that the copy of the petition is served upon the respondent/caveator.

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Heard the learned counsel for the petitioner.

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Learned counsel for the petitioner submits that in respect of the suit schedule property the caveator had filed O.S. No.331/2004 which came to be dismissed and even confirmed in R.A. No.59/2010.

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Notwithstanding the suffering aforementioned orders, the defendants tried to interfere with the peaceful possession of the plaintiff, which necessitated the plaintiff to file the suit for mandatory injunction. The trial Court considering the matter by its order dated 13.08.2018 allowed the I.A. and granted temporary injunction in favour of the plaintiff. The appellate Court on an appeal filed by the defendants set aside the order passed in O.S. No.476/2018 on I.A. No.I.

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The counsel for the petitioner would contend that the appellate Court relied only on the photographs produced by defendant to set aside the order passed by the trial Court in granting temporary injunction. Though the photographs reveals construction to certain extent, the fact is that the defendants have suffered an order with regard to the suit schedule property in earlier proceedings as submitted by the learned counsel for the petitioner, cannot be glossed over. In the circumstances, parties to maintain status-quo till next date of hearing.

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Call after two weeks."

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6. In the aforesaid order, this Court has directed

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the parties to maintain the status quo with regard to

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HC-KAR

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possession over the suit schedule property and the said order is in force till this date. It is submitted that the suit is at the trial stage, hence, interest of justice would be met if the parties are directed to maintain the status quo with regard to the possession over the suit schedule property till disposal of the suit. It is made clear that this Court has not expressed any opinion on merits of the case. For the aforementioned reasons, I proceed to pass the following:

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ORDER

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i) Writ petition is disposed of.

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ii) The parties are directed to maintain

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status quo with regard to the possession over

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the suit schedule property till disposal of the suit.

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iii) No order as to costs.