IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF OCTOBER 2017 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA WRIT PETITION Nos.26521-26522/2017 (GM-CPC) C/W WRIT PETITION Nos.28421-28429/2017 (GM-CPC) IN W.P.Nos. 26521-26522/2017 (GM-CPC) BETWEEN:
1. Ajja Setty S/o late Javara Setty Aged about 75 years, 2. Vasudeav S/o Shivasetty Aged about 50 years, 3. K. Krishna Shetty S/o late Kalashetty Aged about 50 years, 4. Rama Shetty S/o Late Shanivarashetty Aged about 62 years, 5. Kullegowda S/o late Mallegowda Aged about 72 years, 6. Narashimaiah S/o Kalahanumaiah Aged about 57 years, 7. T.M. Raja Shetty S/o late Maridasashetty Aged about 66 years, 8. Balarama S/o late Doddaiah Aged about 55 years, 9. Mutha Setty S/o late Naga Setty Aged about 62 years, 10. Seetharamu S/o late T.K. Kalashetty Aged about 66 years, Petitioners all are residing at Thondal Village, Kasaba Hobli, Hunsur Taluk – 571 105.
Mysuru District.
(By Sri A.Lourdu Mariyappa, Advocate) AND:
... Petitioners 1. The State of Karnataka Represented by its Principal Secretary, Department of Land Revenue & Muszarai, M.S. Building, Dr. Ambedkar Veedi, Bengaluru – 560 001.
2. The Deputy Commissioner for Muzarai & Land Revenue, Mysuru City, Mysuru District – 570 001.
3. The Assistant Commissioner for Muzurai & Land Revenue, Hunsur Sub Division, Hunsur – 571 105, Mysuru District – 570 001.
4. The Thasildhar for Muzurai & Land Revenue, Hunsuru Taluk, Hunsur – 571 105. Mysuru District.
5. Ramachandregowda @ Chandregowda S/o late Mayigowda, Aged about 45 years, R/at Thondal Village, Kasaba Hobli, Hunsur Taluk, Mysuru District – 571 105.
... Respondents (By Sri B.S. Nagaraj, Advocate for C/R5;
Smt. Pramodhini Kishan, AGA for R1 to R4) …… These Writ Petitions are filed under Article 227 of the Constitution of India praying to call for records in O.S.No.307/2016 on the file of Hon’ble Civl Judge and JMFC at Hunsur Taluk and Mysuru District, quash the impugned common order dated 24.4.2017 passed on I.A.No.2 and 7 filed by the petitioners under Order 1 Rule 10(2) read with Section 151 of CPC in O.S.No.307/2016 on the file of Hon’ble Civil Judge and JMFC at Hunsur Taluk and Mysuru District at Annexure – H and etc.
IN W.P.Nos. 28421-28429/2017 (GM-CPC) BETWEEN:
1. Sri Venkteshaiah Aged about 52 years S/o late Kempaiah, 2. Sri Mahadevegowda Aged about 62 years S/o late Venkategowda, 3. Sri Rajegowda Aged about 64 years S/o late Kulle Gowda, 4. Sri Mahesh Aged about 39 years S/o Putta Siddegowda, 5. Sri Rama Dase Gowda Aged about 52 years S/o late Venkategowda, 6. Sri Shivaraju Aged about 46 years S/o late Kempaiah, 7. Sri Nagaiah Aged 57 years S/o late Madaiah, 8. Sri Javaraiah Aged about 55 years S/o late Marilingaiah, 9. Sri Jagadish Aged about 35 years, S/o late Dasegowda, All are R/at, Thondal Village, Kasaba Hobli, Hunsur Taluk, Mysore District – 571 105.
(By Sri P. Nataraju, Advocate) AND:
... Petitioners 1. The State of Karnataka Rep. by its Principal Secretary, Department of Land Revenue and Muzarai, M.S. Building, Dr. Ambedkar Veedhi, Bengaluru – 560 001.
2. The Deputy Commissioner For Muzarai and Land Revenue, Mysuru District, Mysuru – 570 001.
3. The Assistant Commissioner For Muzarai and Land Revenue, Hunsur Sub Division, Hunsur, Mysuru District – 571 105.
4. The Thasildar For Muzarai and Land Revenue, Hunsur Taluk, Hunsur, Mysuru – 571 105.
5. Sri Ramachandre Gowda Aged about 46 years, S/o late Mayigowda R/at Thondal Village, Kasaba Hobli, Hunsur Taluk, Mysuru District – 571 105.
(By Sri B.S. Nagaraj, Advocate for C/R5 ... Respondents Smt. Pramodhini Kishan, AGA for R1 to R4) …… These Writ Petitions are filed under Article 227 of the Constitution of India praying to quash the impugned order dated 21.4.2017 passed by the Hon’ble Court of the Civil Judge and JMFC at Hunsur on I.A.No.III in the suit O.S.No.307/2016 vide Annexure – A and etc.
These Writ Petitions coming on for preliminary hearing this day, the Court made the following:
ORDER These writ petitions are filed by the petitioners- proposed impleading applicants rejecting the application filed under Order 1 Rule 10(2) of Code of Civil Procedure dated 21.04.2017 made in O.S.No. 307/2016 on the file of the Civil Judge & JMFC, Hunsuru.
2. The respondent No.5 who is the plaintiff before the trial court filed O.S.No.307/2016 against the official-respondents - State of Karnatka, Deputy Commissioner, Assistant Commissioner and Tahsildar for permanent injunction restraining the defendants from interfering with the plaintiff’s possession and enjoyment in any manner and also directing the defendants to pay Rs.1,00,000/- (Rupees One Lakh Only) towards loss of crop due to preventing the plaintiff from harvesting the crop in respect of the suit schedule property morefully described in the schedule to the plaint. The plaintiff has contended that the land measuring 6 acres 25 guntas in Sy.No.44 of Thondal Village, Kasaba Hobli, Hunsur Taluk, Mysore District is a religious and charitable inam land attached to the deity of Masanikamma (Banathamma) Devru morefully described in the schedule. It is further contended that he is in possession and enjoyment of the land by performing pooja of Masanikamma (Banathamma) devru as Archaka and as well as permanent tenant ever since the lifetime of his grand father late Patel Venkategowda by cultivating and enjoying the suit schedule property and the earlier suit filed by him in O.S.No.54/2001 for declaration of title and injunction came to be rejected on the ground that the plaintiff has not proved his adverse possession against the government and that he is in possession and enjoyment of the suit property and the defendants have no manner of right, title or interest over the suit schedule property.
3. The official respondents/defendants filed their written statement denied the entire plaint averments and contended that the property belonging to government which is an Inam land and the petitioner has no right, title and interest over the suit property and sought for dismissal of the suit.
4. During the pendency of the suit, the present petitioners who are impleading applicants, have filed I.A.Nos.2, 3 and 7, in total 55 applicants contending that they are in possession of the suit schedule property and the plaintiff was never in possession and enjoyment of the suit property and they are necessary and proper parties to the suit proceedings. The said application was resisted by the plaintiff by filing objections.
5. The trial court considering the applications filed by the impleading applicants/present petitioners and the objections filed by the plaintiff, by impugned order dated 21.04.2017 rejected I.A.No.2, 3 and 7 filed under Order 1 Rule 10 (2) of CPC holding that the suit land involved in the case is a government land and is managed by Muzarai Department and is represented by defendants No.1 to 4. There is no cause of action against the present applicants. Moreover, the applicants have not made out any valid ground to implead them as parties to the suit. Hence, present writ petitions are filed.
6. I have heard the learned counsel for the parties to the lis.
7. Sri A. Lourdu Mariyappa and Sri P. Nataraju, learned counsel for petitioners/proposed impleading applicants vehemently contended that the impugned order passed by the trial court rejecting the applications filed by the impleading applicants is erroneous and contrary to material on record. They further contended that the very suit filed by the plaintiff/respondent No.5 for declaration and permanent injunction in O.S.No.54/2001 came to be dismissed on 01.04.2006, confirming the said judgment the appeal preferred in R.A.No.77/2006 also came to be dismissed and same was re-affirmed before this court by filing R.S.A.No.1090/2011. This court, vide order dated 04.02.2015, has dismissed the appeal confirming the judgments and decree of the courts below. Further, the petitioners are in possession of the suit property and are having interest in the suit property. Hence, they are necessary and proper parties to the suit and without impleading them, the matter cannot be adjudicated.
8. The learned counsel for petitioners further contended that the present petitioners No.1 and 9 i.e., Ajja Setty and Mutha Setty were also parties to earlier proceedings in O.S.No.54/2001, R.A.No.77/2016 and RSA No.77/2006 before this court and they are proper and necessary parties to the proceedings. They further contended that the present petitioners are not claiming any right or interest in the property but they are protecting the property belonging to temple. Therefore, sought to quash the impugned order by allowing the present petitions.
9. Per contra Sri B.S. Nagaraj, learned counsel for respondent No.5/caveator contended that the impugned order passed by the trial court rejecting the applications of the petitioners does not require any interference and respondent No.5 is in possession and enjoyment of the suit land by performing pooja of Masanikamma (Banathmma) devru and by cultivating the suit land. Therefore sought to justify the impugned order.
10. Smt. Pramodhini Kishan, learned AGA for respondents No.1 to 4 submitted that admittedly the suit schedule property belongs to government which is a religious and charitable Inam land attached to the deity of Masanikamma (Banathamma) devru and duly represented by defendants No.1 to 4 to safeguard the interest of the said land and temple. The earlier suit filed by the plaintiff/respondent No.5 was dismissed and the Judgment and Decree was confirmed by this court in RSA No.1090/2011. The present applicants/petitioners who are in no way concerned with the suit schedule property, are not proper and necessary parties to the proceedings. Hence, the trial court is justified in rejecting the applications. Therefore, sought to dismiss the present writ petitions.
11. Having heard the learned counsel for the parties, it is not in dispute that the land bearing Sy.No.44, measuring 6 acres 25 guntas situated at Thondal Village, Kasaba Hobli, Hunsur Taluk, Mysuru District morefully described in the schedule is a religious and charitable Inam land attached to deity of Masanikamma (Banathamma) devru and admittedly the present respondent No.5 earlier has filed a suit in O.S.No.54/2001 in respect of the property in question seeking declaration and injunction. The said suit came to be dismissed and confirmed in RA No.77/2006 and this court in RSA No.1090/2011, has reconfirmed by its judgment dated 04/02/2015 and held as under:
“The entire case of the plaintiffs which is based on adverse possession requires to be rejected. It is needless to state that, adverse possession can only be pleaded as a defence when a right is claimed by the other side and not a right to be exercised based on adverse possession. Therefore, the entire plea of the appellants would necessarily have to fail.
So far as the relief of permanent injunction is concerned, the plaintiffs have failed to prove the alleged interference by the defendants. In order to seek an order of permanent injunction, the plaintiffs would have to show that there is interference by the defendants. When the plaintiffs have failed to show any interference, the question of granting an injunction would not arise for consideration. Hence, no decree was granted.”
12. It is also not in dispute that after disposal of the said suit, the present suit is filed by respondent No.5 herein for permanent injunction against defendants No.1 to 4 who are official respondents. It is the case of the impleading applicants who have filed applications under Order 1 Rule 10 (2) of Code of Civil Procedure that they are in possession of the suit schedule property and at no point of time the plaintiff’s family cultivated the suit land and taking advantage of the wrong entry in the revenue records, he filed the false suit and the impleading applicants were in peaceful possession and enjoyment of the suit schedule property. The applicants except making assertion in their application accompanying affidavit, have not shown as to how they have any interest, when the suit property belongs to Muzarai department and duly represented by respondents/defendants No.1 to 4. The petitioners No.1 and 9 who are parties to the earlier proceedings in O.S.No.54/01, R.A.No.77/06 and R.S.A.No.1090/11.
They can be impleaded as parties to the proceedings only to assist the court with regard to the details of property and to protect the interest of the said parties i.e., official respondents and the interest of the temple. They cannot claim any individual right, title and interest in the suit property.
13. The trial court considering the entire material on record, perusing the averments made in the applications, the objections to the I.A.’s and the averments made in the plaint, documents produced by the partiers and the decisions cited by both the parties, by the impugned order, rejected the applications mainly on the ground that the suit land involved in the case is a religious and charitable Inam land which is managed by the Muzarai department and is under the government and is represented by defendant No.1 to 4 and there is no cause of action against the present applicants. Moreover, the applicants have not made out any valid ground to implead them as parties to the suit.
14. The trial court was right in rejecting the applications of petitioners and while rejecting the applications, it has not noticed the fact that the present petitioners No.1 and 9- Ajja Setty and Mutha Setty who were parties to the earlier proceedings can be allowed only to assist the court subject to the condition that they should not claim any right in respect of the property in question. Only to that extent the application of petitioners/applicants No.1 and 9 i.e., Ajja Setty and Mutha Setty has to be allowed only to assist the defendants to protect the property in question.
15. For the reasons stated above, writ petition No.26521-26522/2017 is allowed in part only permitting the petitioner No.1 and 9- Ajjasetty and Muthasetty to come on record to assist the court and to protect the property in question. The impugned order in respect of applications filed by the remaining applicants, is confirmed as they have not made out any case to show as to how they have interest in the property in question. Consequently, the writ petition filed by the applicants in W.P.No.28421-28429/2017 are dismissed.
PN/-
Sd/- JUDGE