IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE S.N.SATYANARAYANA WRIT PETITION No. 10611 OF 2015 (GM-CPC) BETWEEN:
SMT. RAJAMMA W/O N.SUDHARSHAN, AGED ABOUT 49 YEARS, R/AT KADALAGERE VILALGE, MELUKOTE HOBLI, PANDAVAPURA TALUK, MANDYA DISTRICT-571432.
(By Sri. H.N.SHASHIDHARA, ADV.) AND 1. SRI. K.B.KALEGOWDA S/O BOMMEGOWDA, AGED ABOUT 79 YEARS, R/AT KADALAGERE VILLAGE, MELUKOTE HOBLI, PANDAVAPURA TALUK, MANDYA DISTRICT-571432.
2. SMT. BHAGYAMMA W/O SHIVANNEGOWDA, AGED ABOUT 79 YEARS, R/AT KADALAGERE VILLAGE, MELUKOTEHOBLI, PANDAVAPURA TALUK, MANDYA DISTRICT-571432.
3. SMT. PREMAMMA W/O K.H.BETTEGOWDA, ... PETITIONER AGED ABOUT 49 YEARS, HINDU, AGRICULTURIST, R/AT KADALAGERE VILLAGE, MELUKOTE HOBLI, PANDAVAPURA TALUK, MANDYA DISTRICT-571432.
(By Sri. T. RAJARAM, ADV. FOR R2 & R3 R-1 SERVED) ... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET-ASIDE THE ORDER DATED 3.1.2015 IN M.A. No.10/2013 VIDE ANNEXURE-A, ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, PANDAVAPURA AND DISMISS M.A. NO.10/2013 FILED BY THE R-3.
THIS PETITION COMING ON FOR ORDERS ON I.A., THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER The plaintiff in O.S. No.434/2011 on the file of the Civil Judge (Jr.Dn), Pandavapura has come up in this writ petition impugning the Judgment dated 3.01.2015 allowing M.A. No.10/2013 filed by 3rd defendant in the Original Suit.
2. Brief facts leading to this writ petition are as under:
Plaintiff is said to be the owner of property bearing Sy.No.170/2 measuring 4 guntas situated in Kadalagere village, Melukote Hobli, Pandavapura Taluk, Mandya District, with boundaries as stated in the schedule to the Suit. The said suit is for relief of permanent injunction, wherein the 1st defendant is said to be the person from whom the plaintiff is claiming title. 2nd and 3rd defendants are said to be persons who have purchased some portions of the property from the 1st defendant. In the said suit, an application for temporary injunction was filed under Order 39 Rule 1 and 2 CPC, which was rejected. In the meanwhile, it is also seen that 3rd defendant, after service of notice, having come on record, has stated that she is the kathedar of a portion of very same Sy.No.170/2, which according to her is purchased by her husband under registered deed of the year 1985, as against the sale deed of the plaintiff which is of the year 1998 and in the said suit, application is filed by her seeking temporary injunction restraining the plaintiff from interfering with the construction taken up by her on the property purchased by her husband. According to her, the suit schedule property and property purchased by her husband is one and the same. In this background, the application filed by 3rd defendant is rejected by the trial Court. However, when the matter is taken up by 3rd defendant in M.A.No.10/2013, the said Court has disposed of the same by its Judgment dated 3.1.2015 wherein it has gone through all the materials available on record and decided the main matter instead of confining itself to rejection of application filed by the defendant for the relief of injunction. In the said Judgment, the prayer of the 3rd defendant for permanent injunction is also considered. It is this order which is sought to be challenged in this writ petition.
3. Heard the learned counsel for the petitioner as well as the contesting respondent.
4. Admittedly, the plaintiff is claiming title to a portion of Sy.No.170/2 based on the sale deed executed in her favour in the year 1998 and in the meanwhile, the 3rd defendant, who is the wife of the purchaser of a portion in Sy.No.170/2 is also contending that the suit schedule property is a portion, which is sold in favour of her husband earlier in the year 1985, khata of which is subsequently changed in her name. In this background, the title to the property itself is required to be considered. Both the parties appear to be agitating on the premise that they are the owners of the very same property. In this background, it is not open for the lower Appellate Court to dispose of the appeal by giving finding on the merits of suit which is filed for declaration of title, that too while considering rejection of interim order in an appeal in M.A.10/2013. Therefore, the Judgment dated 3.1.2015 passed in M.A. No.10/2013 is required to be set-aside.
Accordingly, this writ petition is allowed.
Both the parties are relegated to the trial Court where the suit is pending. In the said suit, it is open for them to agitate the matter for the relief of permanent injunction as they are trying to claim or to seek declaration of title, whichever relief they think would be appropriate for them.
In any event, in the pending Suit, the Court below based on the pleadings, shall frame necessary issues and decide the matter instead of considering the interim applications filed by both the parties. It is needless to state that status-quo with reference to land in question shall be maintained as vacant land until Suit in O.S. No.434/2011 is decided on merits before the Court of Civil Judge (Jr.Dn), Pandavapura.
Sd/-
JUDGE ln.