IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.27713 OF 2018 (GM-CPC) BETWEEN:
SRI VENKATESHA S/O RAMAIAH AGED ABOUT 41 YEARS R/AT KUPPEGALA VILLAGE MYSORE TALUK AND DISTRICT-570 010. (By Mr. NANJUNDA SWAMY N. ADV.,) AND:
SRI. H.S. DATTA S/O LATE M.R. SUBBARAO AGED ABOUT 58 YEARS R/AT # 167, 1ST MAIN JAYALAKSHMIPURAM DEVARAJA MOHALLA MYSORE-570 012.
(By Ms. NAVYA SHEKAR, ADV., Mr. V. RAMESH BABU, ADV., FOR C/R) - - -
… PETITIONER … RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE / QUASH THE ORDER DTED 30.5.2018 PASSED BY THE SR. CIVIL JUDGE AND JMFC, AT NANJANGUD IN M.A.NO. 7/2018 VIDE ANNEX-P AND DISMISS THE ABOVE SAID MISCELLANEOUS APPEAL IN M.A.NO. 7/2018 & ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Mr.Nanjunda Swamy N., learned counsel for the petitioner.
Mr.V.Ramesh Babu, learned counsel for the caveator/respondent.
2. The writ petition is admitted for hearing.
With consent of the parties, the same is heard finally.
3. In this petition under Article 227 of the Constitution of India, the petitioner has assailed the validity of the order dated 30.05.2018 passed by the Appellate Court by which appeal preferred by the respondent under order XLIII Rule 1 (r) of the Code of Civil Procedure, 1908 has been allowed and the petitioner herein has been restrained from interfering with the possession of the respondent over the suit property.
4. Facts giving rise to the filing of the petition briefly stated are that the plaintiff filed the suit seeking the relief of permanent injunction. In the suit the plaintiff claimed title in respect of the suit property by a registered sale deed dated 04.02.2008. It was further pleaded that the petitioner is in possession of the suit property since the date of sale and his name was entered in the record of rights as owner thereof. However, the defendant interfered with the possession of the plaintiff over the suit property. Therefore, the plaintiff filed a complaint before the police station, which was registered and thereafter plaintiff filed the suit seeking the relief as aforesaid. Along with the plaint an application under Order XXXIX Rule 1 and 2 of the Code was also filed. The defendant filed a reply to the aforesaid application. The Trial Court vide order dated 19.03.2018 rejected the application preferred by the respondent. Being aggrieved, the respondent filed an appeal. The Appellate Court by an order dated 30.05.2018 has allowed the appeal and has granted injunction in favour of respondent restraining the petitioner from interfering with the possession over the suit property.
5. Learned counsel for the petitioner submitted that the respondent had sold the suit property by unregistered sale deed dated 27.09.2015 to him and since then, he is in possession of the suit property. It is further submitted that the respondent in the criminal proceeding had filed an affidavit on 10.12.2014, in which it was admitted that the petitioner was in possession of the suit schedule property. It is also submitted that the witnesses to the unregistered sale deed had also filed affidavits before the Trial Court, in which it was admitted that petitioner is in possession of the suit property. However, the aforesaid aspect has not been considered by the Appellate Court. On the other hand, learned counsel for the respondent has submitted that the sale deed dated 27.09.2015 is a fabricated document and pursuant to the dispute between the respondent and his neighbors, the respondent had filed an affidavit in the criminal proceeding, in which it was stated that petitioner is in permissive possession of the suit land on behalf of the respondent. However, ultimately the criminal court dismissed the case filed by the respondent and did not rely on the contents of the affidavit filed by the respondent. It is further submitted that the petitioner has not filed any document to show that he is in cultivating possession of the suit land.
6. I have considered the submissions made by learned counsel for the parties and have perused the record. The grant of injunction is a discretionary relief. This court in exercise of supervisory jurisdiction is required to examine whether the aforesaid discretion has been exercised on sound principles of law or not. In the instant case, the Appellate Court has held that the respondent has purchased the suit property by a registered sale deed pursuant to which his name was mutated in the revenue records in respect of the suit lands viz., Sy.No.352/2 measuring 1 acre 12 guntas. The Trial Court has further held that there is a presumption that the owner is in possession of the property. The defendant has not filed any documents to show that he is in possession of the suit property. The discretion to deal with prayer of injunction has been exercised on sound principles of law.
7. Even otherwise it is well settled in law that the jurisdiction of this Court under Article 227 of the Constitution cannot be exercised to correct all errors of a judgment of a Court acting within its limitation. It can be exercised where the orders is passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law and justice. [See: ‘JAI SINGH AND OTHERS VS. M.C.D. AND OTHERS’, (2010) 9 SCC 385, ‘SHALINI SHYAM SHETTY VS. RAJENDRA SHANKAR PATIL’, (2010) 8 SCC 329 and ‘RADHE SHYAM AND ANOTHER VS. CHABBI NATH AND OTHERS’, (2015) 5 SCC 423]. In the instant case the impugned order is not passed in violation of fundamental principles of law and justice warranting interference of this Court under Article 227 of the Constitution. The impugned order does neither suffers from any jurisdictional infirmity nor from any error apparent on the face of the record warranting interference of this court in exercise of its powers under Article 227 of the Constitution of India.
In view of preceding analysis no case for interference in this writ petition is made out. The petition fails and the same is hereby dismissed.
Sd/- JUDGE SS