IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF OCTOBER, 2017 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.46690/2017(GM-CPC) BETWEEN:
SRI SUBBARAYAPPA, S/O LATE VENKATAPPA, AGED ABOUT 65 YEARS, R/AT POOJA RAMANAHALLI, JADIGENAHALLI HOBLI, HOSKOTE TALUK-562114.
BANGALORE RURAL DISTRICT.
(BY SRI K.V. NARASIMHA, ADVOCATE FOR SRI BASAVANNA, M. D., ADVOCATE) AND:
1. SMT. BHARATHI, W/O LATE VENKATESH, AGED ABOUT 40 YEARS, R/AT POOJA RAMANAHALLI, JADIGENAHALLI HOBLI, HOSKOTE TALUK-562114.
BANGALORE RURAL DISTRICT.
2. SRI ASHWATHAPPA, S/O DODDA MUNIYAPPA, AGED ABOUT 45 YEARS R/AT POOJA RAMANAHALLI, JADIGENAHALLI HOBLI, HOSKOTE TALUK-562114.
BANGALORE RURAL DISTRICT.
... PETITIONER 3. SRI VENKATESHAPPA, S/O AVALA MUNIYAPPA, AGED ABOUT 65 YEARS, R/AT POOJA RAMANAHALLI, JADIGENAHALLI HOBLI, HOSKOTE TALUK-562114.
BANGALORE RURAL DISTRICT.
... RESPONDENTS (BY SRI NARENDRA, ADVOCATE FOR SRI M.V. CHANDRASHEKARA REDDY, ADVOCATE) …… THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED IN M.A.NO.1/2015 ON THE FILE OF II ADDITIONAL SENIOR CIVIL JUDGE, BANGALORE RURAL DISTRICT AT BANGALORE DATED 23.9.2017 VIDE ANNEXURE-U AND CONSEQUENTILY ALLOW THE APPLICATION FILED UNDER ORDER 39 RULE 1 AND 2 OF CPC FILED IN O.S.NO.438/2014 ON THE FILE OF JUNIOR CIVIL JUDGE AND JMFC AT HOSKOTE.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER This is plaintiff’s writ petition against the order dated 23.09.2017 made in M.A.No.1/2015 on the file of the II Addl. Senior Civil Judge, Bengaluru Rural District, Bengaluru, allowing the Appeal filed by the defendants and setting aside the order passed by the Prl. Civil Judge and JMFC, Hosakote, granting injunction in favour of the plaintiff in O.S.No.438/2014.
2. The petitioner/plaintiff filed suit for permanent injunction in respect of the suit schedule property, contending that plaintiff is unauthorizedly cultivating the suit schedule property and filed Form No.53 for regularization to the Darkasth Committee, and the same is pending and the defendants have no manner of right, title and interest over the property. The defendants filed written statement and denied the plaint averments and contended that the suit property is the government property and the jurisdictional Deputy Commissioner formed sites and distributed to the defendants by issuing hakkupathra under Ashraya scheme and they are in possession and enjoyment of the same. The revenue authorities also issued licence for construction of house and portion of the building are constructed. Therefore, sought for dismissal of the suit. The plaintiff filed I.A.No.1 for temporary injunction, reiterating the averments made in the plaint. Same was opposed by defendants by filing objections.
3. The Trial Court, considering the application and objections, by the order dated 27.11.2014 allowed the application and granted temporary injunction restraining the defendants from putting up construction over the suit schedule property till disposal of the suit. Aggrieved by the said order the defendants filed M.A. No.1/2015. The lower Appellate Court after hearing both the parties, by the order dated 24.09.2017, allowed the appeal and set-aside the order passed by the Trial Court. Hence the present writ petition is filed.
4. I have heard the learned counsel for the parties to the lis.
5. Sri K.V.Narasimhan, learned counsel for Sri Basavanna.M.D. learned counsel for the petitioner contended that the impugned order passed by the lower appellate Court reversing the discretionary order passed by the Trial Court is erroneous and contrary to law. He further contended that when the application filed by the plaintiff under Form 53 before the Committee for regularization is pending and the concerned authorities have not taken action to dispose of the application. The defendants have no manner of right, title or interest to interfere with the suit schedule property. The Trial Court, considering the same, granted injunction. The lower appellate Court, without applying its mind and the endorsement issued that documents produced by defendants are bogus, proceeded to allow the appeal by the impugned order. Therefore, sought to quash the impugned order of the lower appellate Court by allowing the writ petition and restored the order passed by the Trial Court.
6. Per contra, Sri Narendra, learned counsel for Sri H.V. Chandrashekar Reddy, learned counsel sought to justify the order passed by the lower appellate Court and contended that except the allegation that the plaintiff filed Form No.53, no other document is produced before the Trial Court to show that plaintiff is in possession and enjoyment of the suit schedule property and the defendants have produced hakku pathra, which is not considered by the Trial Court. Therefore, the lower appellate Court, after considering the entire material on record, set-aside the order passed by the Trial Court and the same is in accordance with law. Therefore, sought to dismiss the writ petition.
7. Having heard the learned counsel for the parties, it is the specific allegation of the plaintiff that he is in possession of the property in question, he is cultivating the lands unauthorizedly and has filed Form No.53 which is pending consideration. It is specific case of the defendants that the Deputy Commissioner has formed sites and distributed to the defendants and some of the defendants are already constructing the buildings.
8. Whether the plaintiff is in possession or the defendants are in possession of the property has to be adjudicated only after fulfledged trial. The lower appellate Court reversed the order passed by the Trial Court mainly on the ground that the Trial Court has not considered all the material documents while granting injunction. Same is disputed by learned counsel for the petitioner/plaintiff contending that the endorsement issued by competent authority and the documents produced by the defendants are bogus and the same is disputed by the defendants. These disputed facts have to be decided by the Trial Court after fulfledged trial between the parties.
9. In view of the same, it is suffice to direct both the parties to maintain status quo as on today, in respect of the suit schedule property directing the Trial Court to expedite the matter.
10. For the reasons stated above, writ petition is disposed of both the parties are directed to maintain status quo as on today. The Trial Court is directed to expedite the suit, subject to cooperation by both the parties.
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JUDGE kcm