N. B. Nagaraj Vs M. Siddappa

THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER ON I.A.NO.I IN O.S.NO.468/2020 DTD 04.10.2021 ON THE FILE OF PRINCIPAL CIVIL JUDGE, DAVANAGERE VIDE ANNX-F AND JUDGMENT IN M.A.NO.36/2021 DTD 25.07.2022 ON THE FILE

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HC-KAR

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CNR: KAHC010425522022

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OF III ADDL. SENIOR CIVIL JUDGE AND JMFC AT DAVANAGERE, VIDE ANNX-H AND TO ALLOW THE I.A.NO.I IN O.S.NO.468/2020 AS PRAYED FOR.GRANT AN INTERIM ORDER TO RESTRAIN THE RESPONDENT, HIS AGENTS, HIS ATTORNEYS, HIS SUPPORTERS ANY OTHER PERSON CLAIMING UNDER HIM FROM CAUSING ANY KIND OF OBSTRUCTION TO THE PETITIONER IN ENJOYING THE SUIT SCHEDULE PROPERTY.

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THIS PETITION, COMING ON FOR ORDERS, 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 writ petition is filed challenging the order dated 04.10.2021 passed in O.S. No.468/2020 by the learned Principal Civil Judge, Davanagere (for short the Trial Court'), and the judgment dated 25.07.2022 passed in M.A. No.36/2021 by the learned III Addl. Senior Civil Judge and JMFC, Davanagere (for short the Appellate Court').

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Sri Prasanna B R, learned counsel appearing for

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the petitioner submits that the petitioner/plaintiff has filed a suit for declaration that he is owner and in possession of suit schedule property and relief of permanent injunction.

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In the said suit, plaintiff filed an application under Order

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39 Rule 1 and 2 of CPC seeking to grant temporary injunction. In the said suit, the respondent/defendant filed detailed written statement contending that the suit schedule property was allotted to the share of Smt.Shanthamma, mother of the defendant in her life time. After her death, the property was allotted to the share of the defendant under a registered partition deed dated 13.08.2001. Based on the said contention, the Trial Court held that there was a cloud over the plaintiff's title, without appreciating the fact that the plaintiff claims to have acquired rights under the will executed by Smt. Shanthamma on 12.08.2014. It is submitted that even the Appellate Court without assigning any reason proceeded to dismiss the appeal. Both orders are under challenge.

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It is submitted that after the death of

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Smt.Shanthamma, the plaintiff, being the beneficiary under the will, is in possession and enjoyment of the suit schedule property. It is further submitted that if his

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possession is not protected, the defendant may interfere with it or dispossess him, which would lead to further litigation. Hence, he seeks to grant temporary injunction or in the alternative, an order directing parties to maintain status-quo in respect of the suit schedule property till disposal of the suit. Hence, he seeks to allow the above writ petition.

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Per contra , Sri Chandrashekar G M, learned

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counsel appearing for the respondent/defendant supports the impugned orders and submits that both the Courts below have assigned detailed reasons and came to the conclusion that the plaintiff has failed to establish the possession over the suit schedule property and he has failed to prove the title over the property, which has been observed while rejecting the application for temporary injunction by the Trial Court as well as the Appellate Court.

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It is submitted that the suit schedule property was partitioned among the family members way back in

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the year 2001 and under the said partition, the defendant was allotted very meager share. It is further submitted that it was made very clear that the share allotted to the mother would be enured to the benefit of the defendant after her death. However with a view to deprive the same, a will is created in favour of the grandson of the deceased, Smt.Shantamma, however, these aspects are required to be gone into by the trial Court during the course of trial. Hence no temporary injunction can be granted. He seeks to dismiss the writ petition.

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6. I heard the arguments of the learned counsel

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for the petitioner, the learned counsel for the respondent and meticulously perused the material on record.

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7. The plaintiff had filed OS No.468/2020 against

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respondent/defendant, Sri M Siddappa, seeking relief of declaration to declare that the plaintiff is owner and in possession of suit schedule property, consequential relief of permanent injunction against the defendant or person

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claiming under him from interfering with the suit schedule property and for permanent injunction. In the said suit, the plaintiff filed an application under Order XXXIX Rule 1 and 2 of CPC seeking for temporary injunction against the defendant. The said application was opposed by the defendant. The Trial Court vide order dated 04.10.2021 rejected the said application. The said order was assailed before the Appellate Court and the Appellate Court vide order dated 25.07.2022 passed in MA No.36/2021 dismissed the appeal.

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8. It is required to be noticed that the plaintiff is claiming title over the property based on a will dated 12.08.2014 alleged to have been executed by Smt. Shantamma, the grandmother of plaintiff. The gist of the defence setup by the respondent is that there was a partition between the family members on 13.08.2001 and in the said partition, the defendant was allotted a meager share with a specific condition that a share earmarked for

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the mother i.e. Smt.Shantamma would enure to the defendant after her death.

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9. It is specifically contended by the defendant that Smt.Shantamma has died on 03.04.2017 and after her death, the suit schedule property is allotted to the defendant as per the registered partition deed dated 13.08.2001. The Trial Court considering the aforesaid aspect has recorded a finding that the title of the plaintiff over the suit schedule property is under cloud.

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10. It is required to be noticed that it is difficult for this Court to make specific observation that the suit schedule property is fallen to the share of the defendant after the death of Smt.Shantamma or the alleged will dated 12.08.2014 has no sanctity. In my considered view, the issue with regard to the title is required to be gone into by the Trial Court during the course of trial as the main relief in the suit is for declaration of title of the plaintiff. The plaintiff is required to prove his title based on

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the said will and whether the deceased Smt.Shanthamma had an independent right to bequeath the property in favour of the plaintiff is required to be gone into by the Trial Court. I t is not forthcoming from the material placed before the Court as to who has been in actual physical possession of the suit schedule property after the death of Smt.Shanthamma. In the absence of any such material, the Trial Court as well as the Appellate Court have rightly come to conclusion that the plaintiff has failed to make out the prima facie case to grant temporary injunction and proceeded to reject the application. The concurrent findings of the Trial Court as well as the Appellate Court are neither perverse nor contrary to law. H ence, I do not find any error in the order calling for interference.

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Accordingly, the writ petition is devoid of merits and the same is rejected.

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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BKM/List No.: 1 Sl No.: 23

N. B. Nagaraj v. M. Siddappa

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N. B. Nagaraj v. M. Siddappa

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