IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 03RD DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE S. SUNIL DUTT YADAV WRIT PETITION No.6721/2014 (GM-CPC) BETWEEN:
Sri.Siddegowda, S/o Late Ajjegowda, Aged about 65 years, R/o Sangapura Village, Akkihebbal Hobli, K.R.Pet Taluk, Mandya District. (Since dead by his LRs) (a) Dakshayini, D/o Late.Siddegowda, Aged about 48 years.
(b) Kikkeramma, D/o Late.Siddegowda, Aged about 46 years.
(c) Nagesha, S/o Late.Siddegowda, Aged about 44 years.
(d) Krishnegowda, S/o Late. Siddegowda, Aged about 42 years.
All are R/o Sangaapura Village, Akkihebbal Hobli, Krishnarajapete Taluk, Mandya District.
…Petitioners (By Sri.K.R.Lingaraju, Advocate) AND:
1. S.H.Nagarajegowda, S/o Late Helavegowda, Aged about 60 years.
2. Eramma, W/o Late Kikkeri Gowda, Aged about 62 years.
3. Mallikarjuna, S/o late Kikkeri Gowda, Aged about 32 years.
4. Ramegowda, S/o late Kikkeri Gowda, Aged about 30 years.
All are residents of Sangapura village, Akkihebbal Hobli, K.R.Pet Taluk, Mandya District.
5. Sarojamma, D/o Helavegowda, W/o Kengegowda, Aged about 58 years, Resident of Agrahara, Bachahalli Road, K.R.Pet Taluk, Mandya District.
6. The Tahsildar, K.R.Pet Taluk, Mandya District.
(By Sri.Abhinay.Y.T, Advocate for R1 Sri.M.A.Subramani, HCGP for R6 R2 to R5- served and unrepresented) ...Respondents This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the order dated 05.11.2013 passed in I.A.No.2 in O.S.233/12 in M.A.No.15/2013 by the senior civil Judge and JMFC at K.R.Pet, Vide Annex-A.
This Petition coming on for Preliminary Hearing in ‘B’ group, this day, the Court made the following:
O R D E R The petitioner who is the plaintiff before the trial Court has assailed the order passed in M.A.No.15/2013 dated 05.11.2013, whereby the Appellate Court has set aside the order passed in O.S.No.233/2012 on I.A.No.II filed under Order XXXIX Rules 1 and 2 of CPC. The trial Court had granted an order of temporary injunction restraining the defendants from interfering with the possession of the suit schedule property.
2. The plaintiff had filed a suit for declaration and injunction with respect to an extent of 1 acre 9 guntas in Sy.No.52/B of Sangapura Village, Akkihebbal Hobli, K.R.Pet Taluk. The plaintiff had also sought for affirmation of the katha entry made in the revenue records in M.R.No.2/1980-1981. The plaintiff had contended that the order of regrant made in favour of the first defendant’s father was void as the claim of the first defendant’s father was beyond the extent of land purchased by the first defendant’s father. The plaintiff had also contended that in the earlier round of litigation wherein suit came to be filed by the present first defendant’s father in O.S.No.160/1976 against the plaintiff herein, the application for injunction was considered by the Court and such application for injunction at the instance of the present first defendant’s father was rejected. It is contended that the parties are bound by the order passed in O.S.No.160/1976 and the party cannot reagitate the same issue in the present proceedings.
3. It is further contended that steps have been taken to challenge the order granting occupancy rights under the Mysore (Personal and Miscellaneous) Inams abolition Act, 1954.
4. It is further contended that the trial Court has rightly allowed the application for injunction which has been set aside by the Appellate Court which is untenable under law.
5. The learned counsel for the defendants submits that the earlier round of litigation was initiated by the first defendant’s father against the plaintiff and that was a suit for injunction which eventually came to be dismissed. It is submitted that the present suit O.S.No.233/2012 has been filed seeking for declaratory relief of the plaintiff to obtain relief on the strength of the plaintiff’s case. It is further contended that for grant of injunction necessary ingredient to be established is that the plaintiff has a prima-facie case and in the light of the order granting occupancy rights in favour of the first defendant’s father on 24.07.1962 and the same not having been challenged, the plaintiff in the present proceedings does not have prima-facie case as regards title. It is contended that the Appellate Court has rightly come to a conclusion that there is no prima-facie case of the plaintiff and has accordingly allowed the appeal and set aside the order granting injunction passed under Order XXXIX Rules 1 and 2 of CPC by the trial Court.
6. Heard both the sides.
7. The only point for consideration is as to whether the order of the First Appellate Court is sustainable in law while observing that the plaintiff had not made out a prima-facie case. It is clear that when the plaintiff has sought for the relief of injunction in the suit for declaration filed by him, pre-condition for grant of an order of injunction is making out of a prima-facie case.
8. The suit filed is one seeking declaratory relief.
Admittedly the first defendant’s father has been granted occupancy rights by virtue of the order passed under the Mysore (Personal and Miscellaneous) Inams abolition Act, 1954, on 24.07.1962. The question of title of the plaintiff would be established only if the order granted occupancy rights on 24.07.1962 was challenged. There is no material placed before the Court that the grant of occupancy rights has been challenged. Validity of the said order cannot be sought to be reopened in the present proceedings. The First Appellate Court has rightly observed that there is no prima-facie case and the civil Court cannot enter in to the correctness or otherwise of the order granting occupancy rights.
9. The learned counsel for the respondents has relied upon the judgment of this Court in P.Ramaiah Setty by LRs and others v/s R.Nanjundaiah by LRs and others reported in 2006(4) (KCCR) 2289, to contend that the grant of occupancy rights cannot be a matter for enquiry nor it can reopened in the proceedings before the civil Court. This is again a settled position of law.
10. The contention as regards the first defendant’s father having suffered the order of temporary injunction in O.S.No.160/1976 is indeed noted. However, it is to be seen that the order was in a context of permanent injunction sought for and the suit eventually came to be dismissed. The change of circumstances were also that initially the revenue entries were standing in the name of the first defendant’s father. It is only after the I.A. No.I came to be dismissed in O.S.No.160/1976, it is stated that the revenue entries came to be made out in favour of the plaintiff. It is not in dispute that the revenue entries that was made out was challenged and the revenue entries were finally declared to be subject to the outcome of proceedings before the civil Court.
11. Taking note of the fact that the plaintiff has not made out a prima-facie case, the order of the First Appellate Court does not require to be interfered with.
12. It is made clear that the observations made herein are only for the limited purpose for disposal of the Writ Petition and ought not to influence the trial Court with respect to findings to be made after trial.
13. Taking note that the suit is of the year 2012, the trial Court to expedite the trial considering the seniority of the present case vis-à-vis other pending matters before it.
Accordingly, the petition is disposed off subject to the above observations.
Sd/- JUDGE NS