IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF MARCH, 2019 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.2996/2019(GM-CPC) BETWEEN:
1. SRI. CHIKKANNA, S/O LATE CHIKKA KENCHAIAH AGED ABOUT 62 YEARS, 2. SRI RAJANI @ RAJANI KANTH C, S/O SRI CHIKKANNA, AGED ABOUT 34 YEARS, 3. SRI PRASANNA @ PRASANNA KUMAR, S/O SRI CHIKKANNA, AGED ABOUT 32 YEARS ALL ARE RESIDING AT HIREMARALI VILLAGE, KASABA HOBLI, PANDAVAPURA TALUK, MANDYA DISTRICT-571434.
... PETITIONERS (BY SRI BHARGAV G., ADVOCATE FOR SRI C. R. GOPALASWAMY, ADVOCATE) AND:
1. SRI. VARADARAJU, S/O LATE SRI CHIKKA RANGAIAH AGED ABOUT 62 YEARS, R/AT HIREMARALI VILLAGE, KASABA HOBLI, PANDAVAPURA TALUK, MANDYA DISTRICT-571434.
2. SMT. NINGAMMA, W/O SRI BHANGI HONNAIAH, AGED ABOUT 57 YEARS, R/AT HIREMARALI VILLAGE, KASABA HOBLI, PANDAVAPURA TALUK, MANDYA DISTRICT-571434.
... RESPONDENTS (BY SRI SRINIVASA D. C., ADVOCATE FOR C/R1) … THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 7.4.2018 PASSED ON IA NO.1 IN O.S.NO.298/2016 ON THE FILE OF THE CIVIL JUDGE AND JMFC, PANDAVAPURA VIDE ANNEXURE-E AND JUDGEMENT DATED 4.10.2018 PASSED IN M.A.NO.12/2018 ON THE FILE OF THE SENIOR CIIVL JUDGE AND JMFC, PANDAVAPURA VIDE ANENXURE-G, CONSEQUENTLY DISMISS THE APPLICATION FILED BY THE RESPONDENT-1 PLAINTIFF UNDER ORDER 39 RULE 1 AND 2 READ WITH SECTION 151OF CPC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The unsuccessful defendants have filed the present writ petition against the order dated 4.10.2018 made in M.A.No.12/2018 on the file of the Senior Civil Judge and JMFC., Pandavapura dismissing the appeal and confirming the order dated 7.4.2018 passed on I.A.I in O.S.No.298/2016 by the Civil Judge and JMFC., Pandavapura granting temporary injunction in favour of the plaintiff.
2. The plaintiff filed a suit for declaration of title and for permanent injunction contending that he is the owner of the property in question based on the registered document as well as the revenue entries and the defendant has no manner of right, title and interest over the property in question.
3. The defendants filed written statement denying the plaint averments and contended that the 1st defendant is adjoining owner of Sy.No.61/1 and there is a dispute with regard to identity of the property. Therefore, the very suit filed by the plaintiff is not maintainable and sought for dismissal of the suit.
4. The plaintiff filed an application for temporary injunction based on the plaint averments which came to be resisted by the defendant.
5. The trial Court considering the application and objections, by the order dated 7th April, 2018 granted temporary injunction in favour of the plaintiff as prayed for holding that the plaintiff is in possession of the property in question. Aggrieved by the said order passed by the trial Court, the defendants filed appeal in M.A.No.12/2018 and the Lower Appellate Court by the impugned order dated 4th October, 2018 dismissed the appeal and confirmed the order passed by the trial Court. Against the concurrent findings of fact recorded by the Courts below based on the material on record with regard to temporary injunction, the petitioners are before this Court.
6. Sri Bargav G., appearing on behalf of Sri C.R. Gopalaswamy, learned Counsel for the petitioners contended with vehemence that the impugned order passed by the trial Court granting temporary injunction in favour of the plaintiff is erroneous and contrary to the material on record. He would further contend that though there is dispute with regard to identity of the property, the trial Court ought not to have granted temporary injunction in favour of the plaintiff when the identity of the property is in dispute. He further contended that taking advantage of the suit filed, virtually the plaintiff is encroaching the property of the defendants. Therefore, he sought to allow the writ petition.
7. In support of his contentions, he sought to rely upon the judgment of this Court in the case of Ramesh –vs- G.K. Veerappa reported in 2012 SCC Online Kar 3220 to contend that since there is a boundary dispute, temporary injunction cannot be granted.
8. Per contra, Sri Srinivasa D.C., learned Counsel for Caveator-respondent No.1 sought to justify the impugned orders.
9. Having heard the learned Counsel for the parties, it is an undisputed fact that the plaintiff filed a suit for declaration and permanent injunction contending that he is the owner of the property in question in respect of the suit schedule property based on the registered documents. Though the defendants filed their written statement, they did not claim that the suit schedule property belongs to them, but have contended that the 1st defendant is the adjoining owner of the land bearing Sy.No. 61/1 and there is dispute with regard to identity and therefore, the suit is not maintainable.
10. The trial Court considering the entire material on record recorded a finding that the plaintiff has made out a prima facie case and the balance of convenience lies in his favour. Therefore, if injunction is not granted, the plaintiff would suffer irreparable loss and injustice. Further it has specifically recorded a finding that the plaintiff claimant is in possession of the property bearing Sy.No.61/8 which is measuring 0.12.08 guntas through the registered Sale Deed dated 31.3.2016 is executed by his vendor Ningamma. Based on the Sale Deed, the revenue authorities have changed the entries in the RTC, mutation, etc., in favour of the plaintiff. The trial Court on perusal of the entire materials placed by both parties has further recorded that it is revealed, the vendor of the plaintiff was the owner of the suit property and she has sold the suit property to the plaintiff as per the registered Sale Deed dated 31.3.2016 and thereby she is in possession of the suit schedule property. Moreover, the appeal prepared by defendant No.1 before the Deputy Director of Land Records, Mandya challenging the survey records standing in the name of the vendor of the plaintiff and others came to be dismissed. Accordingly, temporary injunction was granted.
11. The Lower Appellate Court on re-appreciating the entire material on record held that there is no illegality or error committed by the trial Court while granting the order of temporary injunction and hence, rejected the appeal.
12. Both the Courts below based on the registered Sale Deed and the revenue records issued by the revenue authorities during the course of their official duty, have recorded a concurrent findings of fact that prima facie, the plaintiff has made out a case to grant temporary injunction and balance of convenience lies in favour of the plaintiff. Such a finding of fact cannot be interfered with by this Court under writ jurisdiction.
13. In so far as the contention raised by the learned Counsel for the defendants and the judgment relied upon in support of his contentions that the injunction cannot be granted when there is a dispute with regard to identity, in the present case, as recorded by both the Courts below, there is no dispute with regard to the identity of the property. It is the clear case of the plaintiff that he is the owner under the registered Sale Deed and the revenue documents stand in his name. Admittedly, the defendants have not filed any counter claim claiming any right over the property in question and his claim is only in respect of land bearing Sy.No.61/1 which is not the subject matter of the present suit. If he has any grievance in respect of his property, he can agitate in accordance with law. The judgment relied upon by the learned Counsel for the petitioners has no application to the facts and circumstances of the present case.
14. In view of the above, the writ petition is dismissed as the petitioner has not made out any ground to interfere with the concurrent findings of fact recorded by the Courts below based on the registered Sale Deed and the revenue records in exercise of writ jurisdiction under Article 227 of the Constitution of India.
Accordingly, writ petition is dismissed.
Sd/- Judge Nsu/-