IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MAY 2019 BEFORE THE HON’BLE MR.JUSTICE KRISHNA S. DIXIT WRIT PETITION NO.6035/2017 C/W WRIT PETITION NO.55501/2016 (GM-CPC) IN W.P.No.6035/2017 BETWEEN SMT. SADAMMA SHEDTHI, D/O LATE VENKAMMA SHEDTHI, AGED 57 YEARS, SALADIMANE, JOGOOR, PADUVARI VILLAGE, NO.1, SHIROOR POST, KUNDAPURA TALUK UDUPI DISTRICT-574 201. ... PETITIONER (BY SRI. K.SHRIHARI, ADVOCATE) AND 1. KRISTAPPA SHETTY, S/O LATE B.HIRIYANNA SHETTY, AGED 64 YEARS, 2. SMT. USHA K SHETTY, W/O KRISHNAPPA SHETTY, AGED 57 YEARS, BOTH ARE RESIDING AT JOGOOR, PADUVARI VILLAGE, SHIROOR POST, KUNDAPURA TALUK, UDUPI DISTRICT-574 201. ... RESPONDENTS (BY SRI. CHANDRANATH ARIGA, ADVOCATE) CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE COMMON JUDGMENT ORDER DATED 10.8.2016 IN MA.NO.1/2016 AND MA NO.3/206 PASSED BY THE SENIOR CIVIL JUDGE AT KUNDAPURA, WITH RESPECT TO ITEM NO.2 OF B SCHEDULE TO THE PLAINT, FILED AS AGAINST THE ORDER DATED 30.04.2016 ON I.A NO.2 IN O.S.NO.227/2015 PASSED BY II ADDL. CIVIL JUDGE AT KUNDAPURA, BOTH FILED AS ANNEXURE-A AND B TO THE PETITION.
IN WRIT PETITION No. 55501/2016 BETWEEN 1. SRI. KRISHTAPPA SHETTY, AGED ABOUTG 63 YEARS, S/O LATE SRI.B. HIRIYANNA SHETTY, 2. SMT. USHA K SHETTY, AGED ABOUT 56 YEARS, W/O KRISHTAPPA SHETTY, BOTH ARE RESIDING AT JOGUR, PADUVARI VILLAGE, POST: SHIROOR -576 228, KUNDAPURA TALUK, UDUPI DISTRICT. …PETITIONERS (BY SRI. CHANDRANATH ARIGA, ADVOCATE) AND SMT SADAMMA SHEDTHY, AGED ABOUT 56 YEARS, D/O LATE VENKAMMA SHEDTHY, SALADI MANE, JOGUR, PADUVARI VILLAGE-576 228, KUNDAPURA TALUK, UDUPI DISTRICT. ... RESPONDENT (BY SRI. K.SHRIHARI, ADVOCATE) CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS OF M.A NO.3/2016 ON THE FILE OF THE SR.CIVIL JUDGE, KUNDAPURA AND ETC., THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioners in W.P.No.6035/2017 are the plaintiffs in an injunctive suit in O.S.No.227/2015 pending on the file of the learned Second Additional Senior Civil Judge, Kundapura and the petitioners in W.P.No.55501/2016 happen to be the defendants in the said suit. In both these petitions, they have laid a challenge to the common judgment and order dated 10.08.2016 made by the learned Senior Civil Judge, Kundapura in M.A.No.3/2016 c/w M.A.No.1/2016 respectively filed by them challenging the status quo order dated 30.04.2016 made by the learned trial judge on petitioner – plaintiffs’ IA No.II under Order XXXIX Rules 1 & 2 of CPC, 1908. After service of notice, the contesting side has entered appearance through their learned counsel and who oppose each others cases.
2. BRIEF FACTS:
a) Petitioners in W.P.No.6035/2017 filed a civil suit in O.S.No.227/2015 for a decree of bare injunction restraining the petitioners in W.P.No.55501/2016 from interfering with the possession and enjoyment of suit schedule properties. For the sake of convenience, the parties are referred to with their designation in the suit. Plaintiffs’ application in IA NO. II filed under Order XXXIX Rules 1 & 2 read with Section 151 of CPC came to be partly allowed by the learned trial judge on 30.04.2016 directing both the sides to maintain status quo in respect of item No.2 of suit ‘B’ schedule properties pending disposal of the suit, there being no dispute as to plaintiffs’ possession of rest of the suit properties.
b) Plaintiffs’ filed M.A.No.3/2016 contending that the trial judge ought to have granted injunction in respect of the suit properties and not just the status quo order in respect of item No.2 of suit ‘B’ schedule property; defendants too preferred M.A.No.1/2016 contending that no status quo order could have been made in favor of the plaintiffs since it is the defendants who are in the possession and enjoyment of the same.
c) The learned appellate judge heard both the appeals together and granted an order plaintiffs’ IA No.II filed under Order XXXIX Rules 1 & 2 in part and thereby restrained the defendants from interfering with plaintiffs’ possession and enjoyment of suit ‘A’ schedule property & item No.1 of suit ‘B’ schedule property. However, by the very same order he dismissed the said application in respect of item No.2 of suit ‘B’ schedule property and thus, the order of status quo granted by the court below in respect of this property came to be rescinded.
d) The plaintiffs have laid the challenge to the above common order to the extent it rescinded the status quo order in respect of item No.2 of suit ‘B’ schedule property. The defendants have also laid the challenge to the extent of grating injunctive relief in respect of ‘A’ schedule property and item No.1 of ‘B’ schedule property.
3. Learned counsel for the plaintiffs contends that there is sufficient material which the trial court had acted upon while granting status quo in respect of item No.2 of ‘B’ schedule property, in the exercise of its discretion after hearing both the sides and therefore, the impugned order rescinding the same is liable to be set at naught. Learned counsel for the defendants apart from justifying rescinding part of the impugned order argues that no injunctive relief could have been granted to the plaintiff in respect of ‘A’ schedule property and item No.1 of ‘B’ schedule property. Both the sides contend that the impugned order to the extent it denies relief to them is bad.
4. I have heard the learned counsel for the petitioner plaintiff and the learned counsel for the respondent – defendants. I have perused both the writ petition papers.
5. The trial judge in his order dated 30.04.2016 a copy whereof is at Annexure-C at internal page No.29 has specifically observed “… so far as suit ‘A’ schedule properties and item No.1 of ‘B’ schedule is concerned, defendants are not seriously disputing the contentions raised by the plaintiff with regard to said properties. Before hearing arguments on the instant application the learned counsel for the defendants submits that the defendants are concerning (sic) concerning only with second item of suit ‘B’ schedule land as same is granted in favour of second defendant by the Land Grant Committee. …“ 6. The learned Sr. Civil judge in the course of impugned judgment dated 10.08.2016 (Annexure-E) at paragraph No.21 observes “Admittedly, the ‘A’ schedule property is granted by the Land Tribunal to the family of the plaintiff and defendants. The defendants have not seriously disputed the possession and enjoyment of the ’A’ schedule property by the defendants. Now, the dispute in only with regard to item No.1 & 2 of ‘B’ schedule property….”
7. Both the learned trial court judge and the learned appellate judge have made the observation mentioned in the immediately preceding two paragraphs above after hearing both the sides. Nothing has been is argues as to what is contained in these observations being incorrect; therefore no fault cannot be found with the impugned order to the extent it grants injunctive relief in favour of the plaintiffs so far as schedule ‘A’ property and item No.1 of schedule ‘B’ property are concerned.
8. So far as item No.2 of ‘B’ schedule property the learned trial judge after considering the material placed on record has directed the parties to maintain status quo. These documents inter alia comprised of RTC which have presumptive value under Section 18 of the Karnataka Land Revenue Act, 1964. However, defendants too have produced several documents in support of their rival contentions that it is they who are in the exclusive cultivation of the said land which admittedly belongs to the ownership of Government. Plaintiff has produced some document to show that he has applied seeking regularization of this land which is pending consideration before the statutory committee. In these circumstances, justice of the case requires issuance of a direction to both the sides to maintain status quo as was directed by the learned trial judge after hearing the parties.
In view of the discussion made above, both these Writ Petitions are disposed off; the impugned order made by the learned Senior Civil Judge, Kundapura granting injunctive reliefs to the plaintiff to the extent of suit schedule ‘A’ property and item No.1 of suit schedule ‘B’ property is upheld and confirmed; the impugned order to the extent it relates to item No.2 of schedule ‘B’ property is concerned is quashed with a direction to both the sides to maintain status quo till the disposal of the pending suit.
Costs made easy.
Sd/- JUDGE cbc/HB KSDJ: W.P.No.6035/2017 26.06.2019 & W.P.No.55501/2016 ORDER ON ‘BEING SPOKEN TO’ The matter having been disposed off by order dated 28.05.2019 by this Court, the memo for “Being spoken to”, having been accepted, the matter has been heard today.
At paragraph No.24 of the impugned order in W.P.55501/2016, it is specifically stated that the petitioner therein has been granted the subject land in Survey No.267 by the Land Grant Committee vide Grant Order No.NCR.SR.No.699/1998-99; the jurisdictional Deputy Commissioner has issued Saguvali Chit in the year 1998; RTC is also mutated in the year 1999 and the land is described in Survey No.267/P2; these documents have presumptive value under Section 133 of the Karnataka Land Revenue Act, 1964, although the same can be rebutted in the trial. Thus, the case of the petitioner is founded on the title documents namely the Land Grant Order and the Saguvali Chit whereas the case of the respondent is structured on possession.
The above aspect of the matter having not been noticed by this Court, the relief was denied to the petitioner in W.P.55501/2016 by directing status-quo; this error on the part of the Court having been pointed out, this Court exercising its inherent power ex debito justitiae partly favours the writ petition and sets at naught the status-quo order granted by the learned Senior Civil Judge, Kundapura, in the subject miscellaneous appeal.
Learned counsel for the petitioner in connected W.P.No.55501/2016 brings to the notice of the Court the contents of part of the paragraph No.24 at internal page 43 of the order, at running page 123 of the petition. First of the day, the Court has observed as to the grant of subject land in survey No.267, in favour of the petitioner, a Saguvali chit has also been issued in respect of subject land in the ‘B’ schedule in the suit to the extent of 4 acres 6 cents. The said Saguvali chit has been issued by Deputy Commissioner, way back in the year 1998. RTC is mutated in the following order; the contentions of this Saguvali chit match with petitioner’s application in Form No.50, which was filed seeking grant way back in the year 1991. There is a presumption under the Section 133 of Karnataka Land Reforms Act 1961. No material rebutting such presumption is pointed out from the record of the case from the other side, which has claimed only possession rights as against claim of the petitioner founded on title by virtue of the grant order.
In the above circumstances, the petitioner has made out a case that he is in the possession of item No.2 of ‘B’ schedule property and therefore, this Court committed an error in issuing status quo order, which is likely to suffer the land in dispute into a battle field.
In view of the above impugned order to that extent is set at naught. Consequently, the petitioner’s appeal in M.A.No.01/2016 stands favoured; the observations made in the course of this judgment being confined to the dismissal of the case shall not influence the decision making in the suit.
Sd/- JUDGE Ag