IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF DECEMBER, 2017 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.46257/2017 AND WRIT PETITION NO.49674/2017 (GM-CPC) BETWEEN:
1. M. RAMASWAMY, S/O LATE MATAGARAPPA, AGED ABOUT 53 YEARS, R/AT RAMPURA VILLAGE BIDARAHALLI HOBLI, BENGALURU EAST TALUK, BENGALURU-560049.
2. ANJINAMMA, W/O LATE MUNISHAMAPPA, AGED ABOUT 51 YEARS, R/AT TUBARAHALLI PALYA, VIRTHUR HOBLI, BENGALURU EAST TALUK, BENGALURU-560049.
3. YELLAMMA, D/O MATAGARAPPA, AGED ABOUT 49 YEARS, R/AT IMMADIHALLI HOBLI, VIRTHUR HOBLI, BENGALURU EAST TALUK BENGALURU-560049.
(BY SRI SHIVASHANKAR K., ADVOCATE) AND:
1. JAYAMMA, W/O LATE PAPANNA, AGED ABOUT 65 YEARS, 2. MUNIYAPPA, S/O LATE MUNISHAMAPPA, AGED ABOUT 58 YEARS, 3. RAMACHANDRA, S/O LATE MUNISHAMAPPA, AGED ABOUT 50 YEARS, ALL ARE R/AT RAMPURA VILLAGE, BIDARAHALLI HOBLI, BENGALURU EAST TALUK, BENGALURU-560049.
... PETITIONERS ... RESPONDENTS (BY SRI D. R. BABU, ADVOCATE) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED BY THE 1ST ADDITIONAL DISTRICT JUDGE, BENGALURU RURAL DISTRICT, BENGALURU IN M.A.58/2017 C/W M.A.62/2017 DATED 11.9.2017 VIDE ANNEXURE-G AND THE ORDER PASSED BY THE II ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALORE DATED 21.6.2017 ON IAs IN O.S.
NO.1149/2014 BY ALLOWING THE IAs FILED BY THE PETITIONER.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The unsuccessful plaintiffs – petitioners are before this Court against the order dated 11.9.2017 made in M.A. No.58/2017 c/w M.A. No.62/2017 dismissing the appeals filed by the plaintiffs and confirming the order passed by the trial Court dated 21.6.2017 made in O.S. No.1149/2014 on the file of the II Addl. Senior Civil Judge, Bangalore rural district, Bangalore. By the impugned order dated 21.6.2017, the trial Court dismissed the two applications filed under Order 39 Rules 1 and 2 of Code of Civil Procedure, one for restraining the defendants from alienating the suit schedule property and another for restraining the defendants from interfering with the possession of the suit schedule property.
2. The plaintiffs filed the suit for declaration of title by way of adverse possession and for Permanent Injunction contending that they are in peaceful possession and enjoyment of the suit schedule property, morefully described in the schedule to the plaint from 1942 till today as lawful owners and the defendants have no manner of right, title and interest to interfere with the same. The defendants filed the written statement and denied the entire plaint averments and contended that the very suit filed by the plaintiffs for declaration of title by way of adverse possession is not maintainable and the plaintiffs are not entitled for the reliefs sought for. The defendants further contended that they are in possession and enjoyment of the suit schedule property and sought for dismissal of the suit.
3. The plaintiffs also filed two applications under Order 39 Rules 1 and 2 of Code of Civil Procedure, one for Temporary Injunction restraining the defendants from alienating the suit schedule property and another for Temporary Injunction restraining the defendants from interfering with the suit schedule property till disposal of the suit. The said applications were resisted by the defendants by filing objections. The trial Court considering the applications and the objections by the impugned order dated 21.6.2017 dismissed both the applications. Aggrieved by the said order, the plaintiffs filed two appeals i.e, M.A. No.58/2017 and M.A. No.62/2017 before the I Addl. District Judge, Bangalore rural district, Bengaluru who after hearing both the parties by the impugned order dated 11.9.2017 dismissed both the appeals. Hence the present writ petitions are filed.
4. I have heard the learned counsel for the parties to the lis.
5. Sri K. Shivashankar, learned counsel for the petitioners - plaintiffs submits that in the month of November-2017, the plaintiffs filed an application under Order 6 Rule 17 for permission to delete the prayer in the plaint insofar as declaration of title by way of adverse possession and confine the prayer only insofar as grant of Permanent Injunction. The said application is still pending for consideration.
6. Having heard the learned counsel for the parties, it is clear that the trial Court recorded a finding that the plaintiffs failed to prove any primafacie case for grant of Temporary Injunction and the balance of convenience does not lie in their favour and accordingly dismissed both the applications filed by the plaintiffs, one for Temporary Injunction restraining the defendants from alienating the suit schedule property and another for Temporary Injunction restraining the defendants from interfering with the suit schedule property till disposal of the suit. The lower appellate Court on re-appreciation of the entire material on record concurred with the finding of fact recorded by the trial Court and dismissed both the appeals.
7. Both the Courts below have concurrently held that the plaintiffs have not made out any primafacie case for grant of Temporary Injunction based on the material on record. The impugned order passed by the lower appellate Court confirming the order passed by the trial Court is in accordance with law. The concurrent finding of fact recorded by the courts below cannot be interfered by this Court in exercise of powers under Article 227 of the Constitution of India.
8. At this stage, Sri D.R. Babu, learned counsel for the respondents – defendants fairly submits that the defendants are the owners in possession of the suit schedule property and they will not alienate the suit schedule property till the disposal of the suit. The said fair submission is placed on record.
9. In view of the fair submission made by the learned counsel for the respondents – defendants that the respondents – defendants will not alienate the suit schedule property till the disposal of the suit, it is suffice to direct the trial Court to dispose of the suit itself expeditiously subject to consideration of other applications pending before the trial Court.
10. In view of the above, the trial Court is directed to dispose of the suit itself expeditiously subject to consideration of applications pending before the trial Court and subject to cooperation from the parties and their counsel. Accordingly, the writ petitions are disposed of with the above observations.
SD/-
JUDGE Gss/-