IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28th DAY OF JUNE 2017 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA WP.NO.29534 OF 2015 (GM-CPC) BETWEEN:
K.RAVI S/O KRISHNAPPA, AGED ABOUT 39 YEARS, R/AT 126, PARAPPANA AGRAHARA, ELECTRONIC CITY POST, BEGUR HOBLI, BANGALORE-560 100.
... PETITIONER (BY SRI LOKESH BOOVANAHALLI, ADV.,) AND:
1. RATHANAKARA SHETTY S/O LATE RAMANNA SHETTY, AGED ABOUT 46 YEARS, R/A NO. 5, 2ND CROSS, CHINNAPPANAPALYA, WILSON GARDEN, BANGALORE-560 027.
2. RAVINDRASHETTY S/O MAHABALA SHETTY, AGED ABOUT 53 YEARS, R/AT NO. 4, CIRCULAR STREET, AKKITHIMMANAHALLI SHANTHI NAGARA BANGALORE-560 027.
3. SYED IQBAL PASHA S/O KHADAR PASHA, AGED ABOUT 76 YEARS, R/A NO.1061, 7TH MAIN, 3RD BLOCK, KORAMANAGALA, BANGALORE-560 034.
4. KHAN IKTHARAULLA MANNAN S/O LATE HAKIM MOHAMAMD MANNAN, AGED ABOUT 79 YEARS, 5. SMT ROSAMMA MANNAN KHAN W/O KHAN IKTHARAULLA MANNAN, AGED ABOUT 75 YEARS, RESPONDENTS NO.4 AND 5 ARE R/A NO. 494, 6TH CROSS, 17TH G MAIN, 6TH BLOCK, KORAMANGALA, BANGALORE-560 095.
…RESPONDENTS (BY SRI SANGAMESH R.B., ADV., FOR R1 TO R3 & R5 R4 IS SERVED, BUT UNREPRESENTED) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE LOWER COURT RECORDS IN O.S.NO.762/2008, PENDING ON THE FILE OF THE 2ND ADDL. CIVIL JUDGE, BANGALORE RURAL DISTRICT AT BANGALORE, SO AS TO SET ASIDE THE ORDER PASSED BY THE TRIAL COURT IN I.A.NO.2 UNDER ORDER 39 RULE 1 AND 2 OF CPC DTD.5.4.2013 AT ANNEX-A AND THE SAME IS AFFIRMED BY THE 1ST ADDL. SENIOR CIVIL JUDGE BANGALORE RURAL DISTRICT IN M.A.NO.48/2013 DTD.24.2.2015 AT ANNEX-B.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The 1st defendant filed the present writ petition against the order dated 24.2.2015 made in MA.No.58/2013 on the file of I Addl. Senior Civil Judge, Bangalore Rural District, Bangalore, dismissing the appeal filed by the 1st defendant confirming the order passed by the trial Court dated 5.4.2013 on I.A.No.1 made in O.S.No.762/2008 granting temporary injunction in favour of the plaintiffs.
2. The plaintiffs filed a suit for permanent injunction against the 1st defendant and others, contending that they are the absolute owners in possession and enjoyment of the suit schedule property, which was purchased in the year 1995-1998. All revenue records are entered in their name. It was further contended that 1st defendant has no manner of right, title and interest interfering with the possession and enjoyment of the suit schedule property of the plaintiffs. The 1st defendant filed a written statement denying the entire averments contended that he is the absolute owner in possession and enjoyment of the suit schedule property. Other defendants have not filed written statement.
3. The plaintiffs also filed I.A.No.2 for temporary injunction under Order 39 Rules 1, 2 and 3 read with Section 151 of CPC and the same was resisted by 1st defendant by filing objections reiterating the averments made in the written statement. The trial Court after considering the entire material on record by an order dated 5.4.2013 granted temporary injunction in favour of the plaintiffs.
4. Aggrieved by the said order of the trial Court granting temporary injunction in favour of the plaintiffs, 1st defendant filed MA.No.58/2013 before the I Addl. Senior Civil Judge, Bangalore Rural District, Bangalore. The lower Appellate Court after hearing both the parties, by an order dated 24.2.2015, dismissed the appeal by confirming the order passed by the trial Court. Against the concurrent findings of the courts below, the present writ petition is filed.
5. I have heard the learned counsel for the parties to the lis.
6. Sri Lokesh Boovanahalli, learned counsel for the petitioner/1st defendant vehemently contended that the impugned order passed by the trial Court granting temporary injunction in favour of the plaintiffs is erroneous, ignoring the sale deed and other revenue documents produced by the 1st defendant, who purchased the property in question in the year 2005. He further contended that both the courts below failed to notice the copy of the registered sale deed, katha and tax paid receipt, which clearly show that 1st defendant is the absolute owner in possession and enjoyment of the land measuring 1 acre as on the date of filing of the suit. Therefore, he sought to quash the impugned order passed by the courts below by allowing the present writ petition.
7. Per contra, Sri Sangamesh R.B., learned counsel for respondents No.1 to 3 and 5 who are arrayed as plaintiffs justified the impugned order passed by the courts below contending that the plaintiffs proved the prima facie case and they are the absolute owners in possession and enjoyment of the suit schedule property. Therefore, he sought for dismissal of the writ petition.
8. Having heard the learned counsel for the parties, the only point that arises for consideration is:-
“Whether the courts below justified in granting temporary injunction in favour of the plaintiffs, in the facts and circumstances of the present case?”
9. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the available records carefully.
10. It is an undisputed fact that the plaintiffs filed a suit for permanent injunction contending that they are the absolute owners in possession and enjoyment of the suit schedule property by virtue of the registered sale deeds dated 13.12.1995, 5.8.1995 and 4.7.1997. 1st defendant who is the subsequent purchaser filed the written statement denying the entire plaint averments contending that he is the owner of 1 acre of land in question, which was purchased during the year 2005 from the very same venders of the plaintiffs.
11. The trial Court after considering the entire material on record, by the impugned order dated 5.4.2013 recorded a specific finding that the plaintiffs have produced the registered sale deeds through which they acquired properties in question along with demand registered extract and tax paid receipts. All the sale deeds produced by the plaintiffs are from the year 1995- 1998. Whereas, the 1st defendant claimed that he is the owner of 1 acre of land which was purchased during the year 2005 from the very same vendor.
12. On re-appreciating the entire material on record, the lower Appellate Court dismissed the appeal by confirming the order of the trial Court holding that the plaintiffs have made out a prima facie case and the documents produced by them indicates their possession over the suit schedule properties. Both the courts below held that the plaintiffs are the earlier purchasers of the suit schedule property who purchased the same in the year 1995-1998. The documents produced by them depicts that the plaintiffs are the owners in possession and enjoyment of the suit schedule property as on the date of the suit. 1st defendant is the subsequent purchaser of 1 acre of land in the year 2005.
13. In view of the above facts and circumstances of the case, the impugned order passed by the trial Court confirmed by the lower Appellate Court cannot be interfered by this Court by exercising power under Article 227 of the Constitution of India.
14. Accordingly, petition is dismissed. However, since the matter is of the year 2008, the trial Court is directed to expedite the suit in accordance with law subject to co-operation of the parties to the lis.
SD/-
JUDGE PB