IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF APRIL 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA W.P.No.1844/2018 (GM-CPC) BETWEEN:
1. Eshwara Aged about 63 years 2. Ramesha Aged about 55 years 3. H.N.Jagadeesha Aged about 53 years 4. H.N.Kumara Aged about 49 years 5. H.N.Harsha Aged abut 44 years All are represented by their SPA holder Sri.H.N.Jagadeesha All are sons of late Nanjegowda, Residing at Harohalli Village, Pandavapura Taluk, Mandya District – 571 404 (By Sri.Arun.K.S, Advocate) …Petitioners AND:
1. K.M.Ramegowda S/o.Marigowda, Aged about 38 years 2. M.Gopalakrishna S/o.Marigowda, Aged about 35 years Respondent Nos.1 and 2 are residents of K.Bettahalli Village, Kasaba Hobli, Pandavapura Taluk, Mandya District – 571 404 3. The Housing Building Co-operative Society Represented by its Secretary, Pandavapura Town, Mandya District – 571 404 4. The Chief Officer Town Panchayath, Pandavapura Town, Mandya district – 571 404 …Respondents (By Sri.Narendra.D.V., Advocate for R1 and R2;) R3 and R4 are served but unrepresented) This Writ Petition is filed under Article 227 of the Constitution of India praying to quash the impugned order dated 03.10.2017 passed by the Principal Senior Civil Judge and JMFC., at Pandavapura, thereby dismissing the Miscellaneous Appeal No.17/2012 vide Annexure-J and etc., This Writ Petition coming on for Orders, this day, the Court made the following:
O R D E R The un-successful defendant Nos.1 to 5 filed the present writ petition against the order dated 03.10.2017 made in M.A.No.17/2012 on the file of the Principal Senior Civil Judge and J.M.F.C., at Pandavapura, dismissing the appeal and confirming the order passed by the trial Court dated 12.10.2012 on I.A.No.1 in O.S.No.246/2009 on the file of the Civil Judge and JMFC., Pandavapura, granting temporary injunction in respect of ‘B’ schedule property.
2. The respondent Nos.1 and 2 were the plaintiffs before the trial Court, filed suit for declaration declaring “B” schedule property as road as per the layout plan made by the defendant No.6 and consequently for permanent injunction restraining defendants Nos.1 to 5 from interfering on causing obstruction of the plaintiffs of the right of way in the plaint “B” schedule property and mandatory injunction against defendant No.6 directing them that they have made pakka road in “B’” schedule property as per layout plan and directing the defendant No.7 to provide water and electricity supply to plaint “A” schedule property. Contending that the plaint “A” schedule property was a vacant site and further it was allotted to the mother of respondent Nos.1 and 2 by the defendant No.6 through a resolution dated 27.08.1988 and the defendant No.6 had executed a registered sale deed dated 14.11.1988 by sale consideration of Rs.7,550/- from the mother of the plaintiffs and the mother of the plaintiffs became the absolute owner of the “A” schedule property, all the documents stands in the name of the mother of the plaintiffs. The plaint “B” schedule property is 10 feet road made by the defendant No.6 at the time of formation of layout. The plaintiffs have produced the copy of the layout plan prepared by the defendant No.6, wherein it is very clear that there is a road towards the western side of the plaint “A” schedule property which is the plaint “B” schedule property and in spite of the same defendants were obstructed to use of the right of way in the “B” schedule property etc., Hence, filed the suit for declaration and permanent injunction.
3. The defendant No.1 filed the written statement denied the plaint averments and contended that the very suit filed by the plaintiffs for declaration and for mandatory injunction is not maintainable either in law or on facts and sought for dismissal of the suit. The same was adopted by other defendants.
4. The plaintiffs also filed an application under Order XXXIX Rule 1 and 2 of CPC for temporary injunction in respect of “B” schedule property, mainly contending that the defendant Nos.1 to 5 are having no manner of right, title and interest muchless possession in plaint schedule properties except a right of way over plaint “B” schedule property. But the defendant Nos.1 to 5 since one week unnecessarily trying to interfere over the schedule “B” property and causing obstructions to the plaintiffs to use the same as a road for their right of way in the plaint “B” schedule property etc., the said application was opposed by the defendant No.1.
5. The trial Court considering the applications and objections, by an order dated 12.10.2012 on I.A.No.1 recorded the findings that the plaintiffs have made out prima-facie case to grant temporary injunction in respect of the “B” schedule property and has come to a conclusion about the existence of 10 feet road. Accordingly, by order dated 12.10.2012 temporary injunction is granted as prayed for.
6. Aggrieved by the said order, defendant Nos.1 to 5 filed an appeal before the lower Appellate Court in M.A.No.17/2012, whereby the said Appellate Court on reconsideration of the entire record, dismissed the appeal and confirmed the order of the trial Court dated 12.10.2012. Hence, the present writ petition is filed.
7. I have heard the learned counsel for the parties.
8. Sri Arun.K.S, learned counsel for the petitioners contended that the impugned order passed by the trial Court, which is confirmed by the Appellate Court granting temporary injunction in respect of “B” schedule property is erroneous and contrary to law. He further contended that, both the Courts below have erred in considering the fact that the very boundaries of “A” schedule property as shown in the plaint itself is wrong and misleading. Therefore, in the absence of identification of properties, injunction cannot be granted. He would further contend that the plaintiff Nos.1 and 2 are not in the physical possession or not even using the land in “B” schedule property and though the fact that it has not been sold to the defendant No.6-respondent No.3 herein. Both the Courts failed to notice that the plaintiffs have not produced any material documents before the Courts to prove the existence of 10 feet “B” schedule road, in absence of the same, the impugned orders passed by the Courts below are erroneous and cannot be sustained. Therefore, he sought to allow the writ petition.
9. The learned counsel for the respondents sought to justify the impugned order.
10. Having heard the learned counsel for the parties, it is an undisputed fact that the plaintiffs filed the suit for declaration declaring “B” schedule property is a road as per the layout plan made by the defendant No.6 and consequently for permanent injunction, mainly contending that plaint “B” schedule property is 10 feet road made by the defendant No.6 at the time of formation of layout. The plaintiffs have produced a copy of the layout plan prepared by the defendant No.6. The other defendants disputed that the defendant No.6-The Housing Building Co-operative Society has not formed any road as alleged.
11. The trial Court considering the material on record has come to the conclusion that in view of the categorical statement made by the plaintiffs and production of the copy of the plan and in view of the statement made by the defendant No.6 stating formation of road that there exists 10 feet road and plaintiffs have made out an existence of “B” schedule property, the 10 feet road which is the plaintiffs right of way to reach “A” schedule property and granted temporary injunction.
12. The lower Appellate Court on reconsideration of the entire material on record, recorded a categorical finding that on careful examination of the material available on the records, what is not in dispute that, the appellants have not produced any definite material either before the trial Court or before this Court to establish their case that the “B” schedule property was not the part and parcel of the land allotted to their father Sri.Nanjegowda in a partition that took place between himself and others. Further they have not produced any definite material on record before the trial Court or Appellate Court to show that they are in possession and enjoyment of the “B” schedule property. The plaintiffs have produced prima facie material before the trial Court to establish their possession in the “A” schedule property, as regards to the existence of “B” schedule property, there is a serious disputes between the plaintiffs and defendants as noticed above, there is a judicial admission in the written statement of defendant No.6, hence, pleadings filed about an existence of “B” schedule road property.
13. Both the Courts below concurrently held that the plaintiffs prove that there is existence of 10 feet road of “B” schedule property and defendants have not proved that 10 feet road of ”B” schedule property does not exist. Such a findings of fact recorded by the Courts below based on the pleadings and material produced by both the parties cannot be interfered with by this Court in exercise of power under Article 227 of Constitution of India.
Accordingly, writ petition is dismissed.
However, it is made clear that since the suit was filed in 2009 and we are in 2019, the trial Court is directed to dispose the suit expeditiously in accordance with law, without being influenced by any of the observations made by the trial Court, Appellate Court as well as this Court in considering the I.A.No.1.
Ordered accordingly.
Sd/- JUDGE KPS