Sri. Narasimhamurthy P L Vs Smt. Neelamma

THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 29.09.2021 PASSED IN M.A.NO.7/2021 AND M.A.NO.9/2021 ON THE FILE OF II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, TUMAKURU VIDE ANNEXURE-S, BY ISSUE OF WRIT OF CERTIORARI; ii) ISSUE ANY APPROPRIATE WRIT, ORDER OR DIRECTION AS DEEMED FIT IN THE CIRCUMSTANCE OF CASE, CONFIRM THE ORDER DATED 27.01.2021, ALLOWING THE APPLICATIONS FILED BY THE PETITIONER FOR GRANT OF INJUNCTION IN THE INTEREST OF JUSTICE.

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

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CORAM: HON'BLE MS. JUSTICE TARA VITASTA GANJU

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ORAL ORDER

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1. In the present petition, the petitioner/plaintiff seeks to challenge an order dated 29.09.2021, passed in Miscellaneous Appeal Nos.7/2021 and 9/2021, by the learned II Additional Senior Civil Judge and JMFC at Tumakuru [hereinafter referred to as the “Impugned Order”]. By the Impugned Order, the order dated 27.01.2021 passed by the learned III Additional Civil Judge and JMFC at Tumakuru on an application-I.A.No.II under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure, 1908, was set aside.

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NC: 2026:KHC:2728 WP No. 19321 of 2021

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HC-KAR

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2. Learned counsel for the petitioner/plaintiff submits that the petitioner has filed a plaint, seeking declaration of ownership as well as an injunction against the respondents. He further submits that the learned Trial Court, after examining the matter had granted a temporary injunction on 27.01.2021, restraining the respondents from modifying the revenue records pertaining to the suit schedule property, till the disposal of the suit. He further submits that since the respondents challenged his title in respect of the suit property, the application for temporary injunction should have been allowed.

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3. However, it is contended by the learned counsel for the petitioner/plaintiff that the learned AppellateCourt reversed this order by giving a finding that without proof of valid title, it would not be proper to pass an interim injunction in favour of the respondents.In addition, the learned Appellate Court held that since the application decision took nine years, the suit would take some more years to dispose and since the respondents have failed to prove their legal right, the application cannot be allowed.

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NC: 2026:KHC:2728 WP No. 19321 of 2021

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HC-KAR

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4. Learned counsel for the respondents, on the other hand, submits that the respondents owns the suit schedule property and submits that theyare in possession of the same.

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5. The learned Trial Court, after examining the contentions of the parties, found that, originally, the suit schedule property was granted to one Lakkamma, wife of Narasaiah. Pursuant to her demise, the khata and pahani were mutated in the name of her only son Myigappa. Subsequently, in view of the demise of Myigappa also, his wife - Chikkahanumakka, the daughter-inlaw of Lakkamma inherited the suit schedule property and was in possession and enjoyment of the same. The said Chikkahanumakka had conveyed the suit schedule property in favour of the father of the plaintiff/Chikkahanumakka by a registered Sale Deed dated 01.05.1967 and that the plaintiff/petitioner has continued to be in possession thereof. It was further found that the name of the defendants/respondents father was not entered in the revenue records. Paragraphs 21 and 22 of the order of the Trial Court dated 27.01.2021in this behalf are set out below:

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“21. On perusal of the plaint averments as well as the written statement and also the objection as well as

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NC: 2026:KHC:2728 WP No. 19321 of 2021

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HC-KAR

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contentions of sworn affidavit made out by the plaintiff, it reflects that originally the suit schedule property was granted to one Lakamma W/o.Narasaiah. Pursuant to demise of Lakkamma the only son Mayigappa who predeceased her daughter-in-law conveyed the suit schedule property in favor of father of plaintiff as per the registered sale deed dated 1-5-1967. Pursuant to demise of father of plaintiff, plaintiff continued in lawful possession and enjoyment of the suit schedule property.

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22. On the contra, defendants vehemently contested the application alleging that the suit schedule properties was granted to Lakkamma. However, the grant of land to Lakkamma as well as Lenkappa to an extent of 1/6th share was rounded off and removed. As such the name of Narasahanumaiah who is the father of defendant was entered into and to that effect eviction warrant was issued by the revenue inspector seeking for eviction of the suit schedule properties and to hand over the same with the revenue authorities. However, on perusal of the eviction warrant, the possession of the suit schedule properties was handed over to the revenue inspector G.A.Narayaappa. Hence, in order to establish that the father of defendant, his name was entered into in respect of the suit schedule properties, as such by following the due process of law and possession certificate was issued, father of the defendant as required under the Land Reforms Act, has not been issued to the father of defendants which is evident as per records. At this juncture, plaintiff has made out prima facie case, and balance of convenience lies in his favour. That denial of temporary injunction to the plaintiff would cause irreparable loss. Hence, for the upshot reasons and discussions, this Court answers points No.1 to 3 in the affirmative. ”

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[Emphasis Supplied]

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6. The Appellate Court, however, reversed this finding ostensibly on the ground that, since the time for disposal of the application was nine years and the time for disposal of the suit

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NC: 2026:KHC:2728 WP No. 19321 of 2021

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HC-KAR

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would be even longer. It further held that during the pendency of the suit, the Trial Court cannot decide the legal rights of the parties and thus observed that the order of the Trial Court is not proper and needs to be interfered with. It is apposite to set out the relevant extract below:

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“17. Already the suit filed in the year 2012 and interim application filed in the year 2012 but decided in the year 2021 if the restraining the defendants till disposal of the suit it will be caused taking some more years to dispose of the matter. If the both parties are decided to instead of taking interim relief they got to dispose of the case on merit it may be concluded a long back. Therefore, in my considered view the respondent has failed to prove his legal right to restraining the defendants from alienating or making durast of the revenue records. At this stage I have not found any legal right in the plaintiff's case. The appellants are ever right to alienate the suit properties or making durast if they have valid title. From alienation and making durast of revenue records it should not be create any title but such transaction are subject to Sec.52 of TP Act. Hence in my opinion the trial court has not fully justified about how plaintiff has legal right to restrain the defendants from exercising their rights. During pendency of the suit the trial court cannot be possible to ascertain the legal right of the parties. Instead of that the trial court may be proper to dispose of the matter on merit without placing time to restrain the parties through such interim applications. Therefore, it is proper to need to be interference in the order passed by the trial court hence my answer on point No.1 and 2 in the affirmative.”

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[Emphasis Supplied]

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NC: 2026:KHC:2728 WP No. 19321 of 2021

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HC-KAR

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7. Undisputedly, there is a challenge of title of the suit schedule property inter se the parties. Both parties are asserting their rights on the suit schedule property and both claim to be in possession. While the rights of the petitioner/plaintiff are through a registered Sale Deed dated 01.05.1967, the respondents submit that it is a family property. This Court is unable to agree with the finding of the Appellate Court that because the injunction application has taken nine years for a decision, the injunction cannot be granted.When there is a dispute of title between the parties and unless and until, the title is decided, the property in issue needs to be protected.

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8. Accordingly, this Court deems it appropriate to pass the following:

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ORDER

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(i) The impugned order dated 29.09.2021, passed in Miscellaneous Appeal Nos.7/2021 and 9/2021, by the learned II Additional Senior Civil Judge and JMFC at Tumakuru is set aside.

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NC: 2026:KHC:2728 WP No. 19321 of 2021

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HC-KAR

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(ii) The order dated 27.01.2021, passed by the learned III Additional Civil Judge and JMFC at Tumakuru on I.A.No.II, under Order XXXIX Rules 1 and 2 of CPC, is revived.

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9. Since the suit was filed in the year 2012 and more than almost fourteen years have passed, the learned counsel for the parties submit that they will not take any unnecessary adjournments before the Trial Court and will assist the Trial Court in disposing of the matter, expeditiously.

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10. The petition is disposed of in the aforegoing terms. All pending applications stand closed.

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11. It is clarified that nothing construed herein shall be construed as a finding on merits of the matter. The rights and contentions of both parties are left open to be decided before

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the learned Trial Court.

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Digitally signed by TARA VITASTA GANJU Location: HIGH COURT OF KARNTAKA

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(TARA VITASTA GANJU) JUDGE

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BMV*

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List No.: 1 Sl No.: 24

Sri. Narasimhamurthy P L v. Smt. Neelamma

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Sri. Narasimhamurthy P L v. Smt. Neelamma

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