IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S DIXIT WRIT PETITION No.5881 OF 2018 (GM-CPC) BETWEEN:
1. Smt. Shivamma W/o. late Sri Panchaksharaiah, Aged about 70 years, Residing at Sabera Layout, Opp. Ganesha temple, Sondeguppe Road, Nelamangala – 562 123 2. Smt. Naganna S/o. late Sri Panchaksharaiah, Aged about 56 years, Residing at Sabera Layout, Opp. Ganesha Temple, Sondeguppe Road, Nelamangala – 562 123 …Petitioners (By Sri V.B.Shivakumar, Advocate) AND Smt. Hanumakka @ Gundamma W/o. late Sri Nanjappa, Aged about 72 years, Residing at No.181/1, 3rd Cross, Ganesha Rao Layout, Shubash Nagara, Nelamangala – 562 123 … Respondent (By Sri R. Raja for Sri. R.B. Sadasivappa, Advocate) This writ petition is filed under Article 227 of the Constitution of India praying to quash the order of the 1st Appellate Court dated 27.01.2018 passed by the Principal Senior Judge, Senior Civil Judge, Nelamangala arising out of M.A.No.1/2018 at Annexure-A and etc., This Writ Petition coming on for Preliminary hearing this day, the Court made the following:
ORDER Petitioners being the defendants in an injunctive suit filed by the respondent herein in O.S.No.427/2017 are knocking at the doors of Writ Court seeking invalidation of the order dated 27.01.2018, a copy whereof is at Annexure-A whereby the learned Senior Civil Judge, Nelamangala, having allowed respondent’s M.A. No.1/2018 against the trial judge’s order dated 02.01.2018 has granted temporary injunction restraining interference. After service of notice, the respondent – plaintiff has entered appearance through his counsel and resists the writ petition.
2. Learned counsel for the petitioners argues that their registered sale deed is dated 23.03.1972 whereas that of the respondent’s admittedly is 06.04.1979; even if it is assumed that the land comprised in petitioners’ sale deed is the land enveloped by the respondent’s, when the prior conveyance prevails over the later, which aspect of the matter the author of the impugned order has not adverted to. Petitioners’ sale deed has the description of the suit property, inter alia, with reference to Sondekoppa Road, which is now modified by curvature on which the respondent is trying to build his argument; the lower appellate Court having approached the matter with juridically defective angle, the impugned order has come into existence.
3. Learned counsel for the petitioners hastens to add that in the event, the respondent succeeds in his suit, whatever construction that they undertake in the subject property, they would just quit and go without claiming any equity whatsoever, of course subject to right of appeal or otherwise. So arguing, he seeks allowing of the writ petition.
4. Learned counsel for the respondent per contra submits that there is absolutely no dispute as to the identity of the subject property, whose nature petitioners want to change by taking up construction; the trial Court having erred in not favouring him with some protective relief, the lower appellate Court having considered all the aspects of the matter has granted an order of temporary injunction in his appeal which is not vulnerable for challenge; the impugned order being the product of exercise of discretion by the lower appellate Court in accordance with rules of reason & justice, cannot be subjected to deeper scrutiny at the hands of Writ Court exercising restrictive jurisdiction under Article 227 of the Constitution of India; in O.S.No.147/1990, the brothers of respondent had implicated the subject property, but the suit came to be dismissed; the petitioners have got the subject land converted to nonagricultural purpose vide order dated 04.07.2016. So contending, he seeks dismissal of the writ petition.
5. Having heard the learned counsel for the parties and having perused the petition papers, this Court is inclined to interfere in the matter for the following reasons:
i) suit of the respondent in O.S.No.427/2017 is for a decree of bare injunction; the same is founded on the sale deed dated 06.04.1979 whereas, petitioners have bought the subject property under the sale deed dated 23.03.1972; it is a settled legal position that as between two conveyances of the same nature, the prior overwrites the subsequent; what was sold to the petitioners in the sale deed of the year 1972, could not have been sold to the respondent later;
ii) the contention as to the brothers of respondent’s husband had filed a civil suit in O.S.No.147/1990 in which the petition property was also involved and that the said suit came to be dismissed does not advance the case of the respondent since the petitioners herein admittedly were not parties to the same; the respondent has obtained conversion of the subject property from agricultural to nonagricultural only changes the nature of the land and that per se does not show that the respondent is in the possession of the same; even otherwise also, the said conversion does not affect the rule of prior conveyance is already mentioned above;
iii) the suit property is a small piece of land admeasuring 30 x 20 Sq.Ft.; even if it is assumed to have been converted to non-agricultural purpose, whatever construction the petitioners want to undertake therein, can be made subject to outcome of the suit as rightly contended by their counsel; his submission that he will file an affidavit to the effect that if the respondent succeeds in the suit, the petitioners would quit the property in favour of the respondent without claiming any equities whatsoever, of course, subject to appeal or the like; thus, no prejudice would be caused to the plaintiff in any way; and iv) the lower appellate Court has not properly adverted to the points now treated above and thus, the impugned order is infected with errors apparent on its face to the prejudice of the petitioners who intend to erect a residential building, their claim as to possession is prima facie established by the sale deed of 1972, the extract of 2000-01 to 2012-13 Tax Demand Register, the Tax Receipts latest of which is November, 2016 and other documents.
In the above circumstances, this writ petition succeeds; the impugned order is set at naught; petitioners’ shall file an affidavit in terms of this order before the learned trial judge as a precondition for undertaking the construction activity in the subject property.
The observations hereinabove made being confined to disposal of this writ petition shall not influence the trial & decision making in the subject suit, in any way.
No costs.
Sd/- JUDGE KTY/Bsv