IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF FEBRUARY 2017 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.62970 OF 2016 (GM CPC) Between:
1. Siddaramappa S/o Bhyrappa Aged about 64 years Senior Citizen Not claiming any benefit 2. Jagegowda S/o Siddaramappa Aged about 76 years Senior Citizen Not claiming any benefit 3. Mallikarjunappa S/o Doddaparappa Aged about 54 years 4. Rajappa (Correct name is K.S.Rajappa) S/o Shivalingappa Aged about 56 years 5. K.G.Eshwarappa S/o Gangappa Aged about 46 years 6. K.P.Gangadharappa S/o Parappa Aged about 38 years, 7. K.G.Chandrashekarappa S/o Gangappa Aged about 35 years 8. K.S.Siddaramappa S/o Siddappa Aged about 40 years 9. M.S.Shivamurthy S/o Late Siddaramappa Aged about 57 years All are R/o Katiganere village Ajjampura Hobli Tarikere Taluk Chikkamagaluru District-577 228 ... Petitioners (By Sri V.Javahar Babu, Advocate) And 1. Talavar Rangappa S/o Talavar Mallappa Aged about 64 years 2. Talavar Kariyappa S/o Talavar Mallappa Aged about 62 years 3. Talavar Nagappa S/o Talavar Mallappa Aged about 59 years All are R/o Katiganere village Ajjampura Hobli Tarikere Taluk Chikkamagaluru District-577 228 ... Respondents (By Sri S.V.Desai for Caveator/Respondent No.1 & 3) This Writ Petition is filed under articles 227 of the Constitution of India praying to quash the order passed by the court of the Civil Judge and JMFC, Tarikere on IA No.3 dated 15.11.2016 in O.S.No.228/2012 as per Annexure-F hereto and consequently dismiss IA.No.3.
This Writ Petition coming on for preliminary hearing this day, the court made the following:
ORDER The defendant Nos.1 to 9 filed the present writ petition against the order dated 15.11.2016 passed in O.S.No.228/2012 by allowing I.A.No.3 filed by the plaintiffs, directing the P.S.I., Ajjampura Police Station to render police help to the plaintiffs/applicants therein to enforce the order of temporary injunction dated 30.10.2012.
2. The respondents who are the plaintiffs before the Trial Court, filed suit for permanent injunction in respect of the suit schedule property more fully described in the schedule contending that the plaintiffs are the owners and in possession of the suit schedule property by virtue of the order passed by the jurisdictional Assistant Commissioner, Tarikere Sub Division, Tarikere in favour of the plaintiffs grandfather by name Ganga S/o Talavar Chikka dated 27.10.1942 and issued Saguvali Chit vide No.664/1942-43. In pursuance to the said grant, all the revenue records have been mutated in the name of the plaintiffs. The plaintiffs have produced documents along with the plaint such as mutation, RTC entries and further contended that they are in possession and enjoyment of the suit schedule property as on the date of the suit.
3. They further contended that the defendants who are politically and financially powerful persons and are landlords, they have no right, title, interest and possession over the suit schedule property, tried to interfere with the possession of the plaintiffs over the suit property. They have further submitted that the local MLA is the relative of defendants and all the villagers taking political power and police help, have made illegal attempts to dispossess the plaintiffs from the suit schedule property on 17.07.2012 and 18.07.2012 and therefore, they have filed a suit for injunction.
4. The defendants filed written statement and denied the entire plaint averments and contended that the suit schedule property is a Gomala land and all the villagers have right to use as beneficial enjoyment and grazing purpose for their cattle and they have contended that the plaintiffs were never in possession and enjoyment of the suit schedule property etc, and pray for dismissal of the suit.
5. During the pendency of the proceedings, the plaintiffs filed I.A.No.1 for temporary injunction reiterating the plaint averments. The said application was resisted by the defendants by filing objections. The Trial Court considering the entire materials on record, by an order dated 30.10.2012, granted temporary injunction holding that the plaintiffs prima-facie proved that they are in possession and enjoyment of the suit schedule property as on the date of the suit and balance of convenience lies in favour of the plaintiffs. Accordingly, temporary injunction was granted on 30.10.2012.
6. Aggrieved by the said order passed by the Trial Court, the defendants filed M.A.No.13/2012 before the Senior Civil Judge, Tarikere and there was no interim order before the Lower Appellate Court. The learned counsel for the petitioners submitted that the said appeal came to be dismissed for default and subsequently, miscellaneous petition was also filed.
7. When the things stood thus, the plaintiffs filed I.A.No.3 under Section 151 of Code of Civil Procedure, 1908 for police protection and to direct the PSI of Ajjampura Police Station to render police help to the plaintiffs/applicants to implement the interim order dated 30.10.2012 passed by the Trial Court and also to protect their lawful possession and enjoyment over the suit schedule property and contended that the Misc. Appeal was dismissed for default on 23.02.2013 and they have not preferred any appeal before the appellate court against the said order. Inspite of the same, the defendants on the influence of local MLA and political members, are constrained to dispossess the plaintiffs from the suit schedule property, in utter violation of the injunction order passed by the Trial Court. Therefore, the plaintiffs lodged complaint before the jurisdictional police under Section 3(1) of SC and ST (Prevention of Atrocities) Act 1976 against the respondents, the same is pending before the Additional Session Judge at Chikkamagaluru. But, on 15.6.2013, 18.6.2013 and 20.6.2014, when the defendants made illegal attempts to dispossess the plaintiffs from the suit schedule property, they have approached the Ajjampura police. But, the police orally directed them to obtain orders from the court for police protection. That application was resisted by the defendants by filing objections.
8. After hearing the parties, the trial court by the order dated 15.11.2016, allowed I.A.No.3 and directed the Police Sub Inspector of Ajjampura Police Station to render police help to the plaintiffs to enforce the order of Temporary injunction dated 30.10.2012. Hence, the present Writ Petition is filed.
9. I have heard the learned counsel for the parties to the lis.
10. Sri V.Javahar Babu, learned counsel appearing for the petitioners vehemently contended that, the impugned order passed by the Trial Court allowing the application on 15.11.2016, though the application was filed on 30.06.2014 i.e., nearly more than two years, clearly indicates that there was no interference by the defendants. He further contended that the property bearing Sy.No.23 of Katiganere village, Ajjampura Hobli, Tarikere Taluk is a Gomala Land and the same is for the beneficial enjoyment of the villagers and for grazing purpose of their cattle. The Trial Court without considering the same in the right perspective has granted interim order erroneously. However, the trial court failed to notice the malafide intention on the part of the respondents to enter upon the land with the police help and also filed false cases against the villagers and petitioners and therefore, the impugned order cannot be sustainable in law.
11. He further contented that in case of any breach or disobedience of an order of temporary injunction, there is express provision under the Code of Civil Procedure, under Order 39 Rule 2A. Therefore, the impugned order passed by the Trial Court granting Police protection to implement the interim order cannot be sustained. Therefore, he sought to allow the present Writ Petition by setting aside the impugned order.
12. Per contra, Sri S.V.Desai, learned counsel appearing for the caveator/respondent Nos.1 and 3 sought to justify the impugned order and strenuously contended that the trial court after hearing both the parties, by order dated 30.10.2012, granted temporary injunction holding that the plaintiffs are in possession and enjoyment of the suit schedule property as on the date of the suit. That order has reached finality. Though the defendants filed MA No.13/2012, the same came to be dismissed for default vide order dated 23.02.2013 and they have not preferred any appeal or miscellaneous petition against the order passed by the Lower Appellate Court. When things stood thus, the defendants tried to interfere with the possession of the plaintiffs on 15.6.2013, 18.6.2013 and 20.6.2014. Hence, the present application was filed. Therefore the Trial Court rightly granted the police protection and the same is in accordance with law. Therefore, he sought to dismiss the Writ Petition.
13. Having heard the learned counsel for the parties to the lis, the only point that arises for consideration in this Writ Petition is;
“Whether the impugned order passed by the Trial Court by allowing I.A.No.3 granting police protection in pursuance of the temporary injunction granted on 30.10.2012, is justified in the facts and circumstances of the present case?”
14. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record carefully.
15. It is undisputed fact that the respondents filed suit for permanent injunction against the defendants and contended that they are the owners of the suit schedule property by virtue of the grant made by the jurisdictional concerned authorities on 20.10.1942 and Saguvali Chit is also issued vide No.664/1942-43 and in pursuance to the same, all the revenue records and mutation records are entered in the name of the plaintiffs.
16. It is the specific case of the defendants that the suit schedule property is a Gomala land of the villagers including defendants and they utilizing the land for grazing purpose of their cattle and the plaintiffs never were in exclusive possession of the same.
17. It is also undisputed fact that the Trial Court considering the rival contentions of both the parties, by its order dated 30.10.2012, granted temporary injunction holding that the plaintiffs are in possession and enjoyment of the suit schedule property as on the date of the suit and there is interference by the defendants. Admittedly the order was passed by the Trial Court on 30.10.2012 which was the subject matter of MA No.13/2012 and it is fairly stated by the learned counsel for both the parties, that there was no interim order before the Lower Appellate Court. Ultimately, the appeal came to be dismissed for default on 23.02.2013.
18. Learned counsel for the respondents submit that the dismissal order passed by the Lower Appellate Court on 23.02.2013 has reached finality, no further miscellaneous petition or appeal is filed. Therefore, it is clear that the injunction granted by the trial court in favour of the plaintiffs by its order dated 30.10.2012, has reached finality.
19. It is the specific case of the plaintiffs that though the order is passed in the year 2012, the defendants started to interfere with the possession of the plaintiffs only on 15.6.2013, 18.6.2013 and 20.6.2014. Therefore, they have filed the application for police protection. In view of the circumstances stated above, the contention of learned counsel for the petitioners Sri V.Javahar Babu, though there was no immediate threat or violation of the order passed by the Trial Court, as the application filed on 30.06.2014 and the impugned order passed on 15.11.2016 cannot be accepted. The fact remains that, the contention of both the parties with regard to ‘Grant’ and with regard to ‘Gomala’ as alleged by the plaintiffs and defendants has to be adjudicated by the Trial Court.
20. During the pendency of the proceedings of the said suit, there is an order of injunction operating against the defendants by the order dated 30.10.2012 and it has reached finality. The defendants cannot take advantage that it is Gomala land and cannot interfere with the possession of the plaintiffs over the suit schedule property in violation of the order passed by the Trial Court dated 30.10.2012. When the order passed by the Trial Court has reached finality, both the parties to the lis are bound to obey the order passed by the Trial Court. Therefore, the Trial Court considering the entire material on record, recorded finding that the plaintiffs have made out sufficient ground to allow IA No.3 for grant of police protection.
21. The Trial Court also recorded a finding that it is relevant to note that in the application, the plaintiffs have stated that after the order of temporary injunction is granted by the Trial Court, the defendants have continued to cause interference by trespassing into the suit schedule property and they have disobeyed the order of the Court and further stated that, when the defendants disobeyed the order of temporary injunction, they immediately approached the Ajjampura police and the police advised to take necessary direction from the court.
22. This court in case of Mahadevaprasad M.S. & others Vs. Mahadevaiah & Others, reported in ILR 2001 KAR 462, held that the police protection can be given to enforce the orders passed by the Trial Court granting Temporary Injunction and the Court has got power to enforce the same. Therefore, the contention of petitioners that he is in persona cannot be accepted at this stage and the remedy under Order 39 Rule 2A of CPC is not exhaustive. The Court can pass orders if necessary for police protection to enforce the order of the Court.
23. This Court in the case of Smt.
Karisiddamma and Others Vs Smt. Sanna Kenchamma, reported in ILR 2010 KAR 1197 held that “for implementing the injunction order, the Court can always exercise its inherent powers to grant police aid. The aggrieved party cannot be precluded from seeking police assistance in enforcing the temporary injunction order, just because he can exercise the remedy provided under Order 39 Rule 2-A of CPC. It is further held that, this power though not expressly conferred, is a power incidental or ancillary to the exercise of the power to grant injunction pending the suit. -- When a temporary injunction order is made absolute after hearing both the sides, there are no legal impediments in granting the police assistance for enforcing the temporary injunction order depending upon the gravity of situation”. For the reasons stated supra, the Trial Court was justified in allowing IA No.3 filed by the plaintiffs under section 151 of Code of Civil Procedure, for police protection.
24. In view of the same, the point raised in this petition has to be answered in the affirmative holding that the impugned order dated 15.11.2016 passed by the Trial Court granting police protection to implement the order dated 30.10.2012, is in accordance with law and the defendants/petitioners have not made out any ground to interfere with the impugned order passed by the Trial Court in exercise of power under Article 227 of the Constitution of India.
Accordingly, the Writ Petition is dismissed.
SD/- JUDGE KMV/PN*