IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV WRIT PETITION No.3995/2014 (GM-CPC) Between:
1. Sri Venkateshappa, Aged about 62 years, S/o Late Angadi Shettappa.
2. Sri Krishnappa, Aged about 60 years, S/o Late Angadi Shettappa.
3. Sri Ramachandra, Aged about 58 years, S/o Late Angadi Shettappa.
4. Sri Srinivas, Aged about 56 years, S/o Late Angadi Shettappa.
All are residing at Kempadyapanahalli, Bedadi Hobli, Ramanagar District. … Petitioners (By Sri. D.L. Jagadeesh, Senior Counsel for Smt. Rakshitha D.J., Advocate) And:
Sri M. Ramakrishnaiah, S/o Late Muninarasihmaiah, Aged about 69 years, Residing at Kempadyapanahalli, Bidadi Hobli, Ramanagara Taluk – 586 101. … Respondent (By Sri K. Shantharaj, Advocate) This Writ Petition is filed under Articles 226 and 227 of the Constitution of India, praying to quash the order dated 14.10.2011 on I.A. No.1, in O.S. No.159/2011, passed by the learned Principal Senior Civil Judge & CJM, Ramanagar, produced at Annexure-D and also that of the order dated 16.01.2014 in M.A. No.18/2011, passed by the I Additional District and Sessions Judge, Ramanagar, which is produced at Annexure-G to the writ petition and etc.
This Writ Petition coming on for preliminary hearing in ‘B’ Group this day, the Court, made the following:
ORDER Petitioners who were the defendants before the trial Court have filed the present petition and have assailed the order passed on the application filed under Order 39 Rules 1 and 2 of CPC by the trial Court vide order dated 14.10.2011 allowing the application and have also assailed the order passed in M.A.No.18/11 dated 16.01.2014 dismissing the miscellaneous appeal.
2. The facts that are made out is that the plaintiff had filed a suit seeking the relief of declaration and injunction with respect to an extent of 6 acres 6 guntas in Sy. No.45. It is the case of the plaintiff that the property belonged to the father of plaintiff – Muninarasimhaiah and the property being the ancestral property, rights devolved upon the death of his father. The plaintiff had further asserted that the revenue entries stood in the name of the father of plaintiff for a long period of time till rejection of the application of the plaintiff for making necessary entries in the revenue records by virtue of inheritance consequent to the death of his father in the year 2006. It is further submitted that against the order of the revenue authority rejecting the request of the plaintiff for recording his name on the basis of inheritance, various proceedings were initiated which eventually culminated in filing W.P.No.12803/2011. However, this Court refused to interfere with the revenue entries though observed that the entries would be subject to the outcome of the order by the Civil Court.
3. The defendants on the other hand have filed their written statement and have contended that Muninarasimhaiah was not the owner of the property and that the defendants were in fact the owners of the total extent of 6 acres 6 guntas in Sy. No.45 having purchased the same through a registered sale deed executed in the year 1952.
4. Learned Senior counsel appearing on behalf of petitioners has assailed the order passed on the application filed under Order 39 Rules 1 and 2 and submits that the Court of first instance as well as the Court sitting in appeal against the order passed under Order 39 Rules 1 and 2 have committed concurrent errors. It is submitted that the Courts ought to have taken note of the boundaries as mentioned in the sale deed of the year 1952 and a careful perusal of the sale deed dated 27.12.1952 and the entries in the sale deed would indicate that what had been conveyed was to the extent of 6 acres 6 guntas. It is contended that the revenue entries as on date stand in the name of the defendants and a presumptive value ought to have been placed on the said revenue entries by the Courts below and if that were to be so, the application filed by the plaintiff ought to have been rejected. It is also contended that the burden is on the plaintiff to prove his case and in the present case as the plaintiff has merely averred that he has obtained rights with respect to the ancestral property and not having produced any title deeds, the Courts ought not to have allowed the application. It is further contended that the plaintiff ought to have obtained the relief on the basis of the strength of its case and cannot rely upon the weakness of the case put forth by the defendants. Accordingly, it is contended that the findings of the trial Court as well as the appellate Court are erroneous and require to be interfered with.
5. Learned counsel for the respondent – plaintiff on the other hand would contend that admittedly the defendants claim interest through the sale deed dated 27.12.1952 and a perusal of the schedule to the said sale deed clearly indicates that what has been conveyed is only 17 guntas and hence, the contention of the defendants cannot be accepted. It is further submitted that both the Courts have recorded findings on the basis of appreciation of material on record and no case is made out for interference in exercise of writ jurisdiction with respect to the concurrent findings of the Courts.
6. Learned Senior counsel appearing on behalf of the defendants – petitioners has also contended that there has been suppression of material facts and the courts ought to have rejected the application of the plaintiff only on this ground. It is submitted that on an earlier occasion O.S.50/2009 was filed by the plaintiff seeking partition and the Court while disposing of the application under Order 39 Rules 1 and 2 on merits has held against the plaintiff and has also recorded observation with respect to the relationship of the plaintiff with his father. It is further contended that the fact of order being passed in O.S.No.50/2009 has not been mentioned in the present proceedings and that itself amounts to suppression of material fact and as the plaintiff was seeking an equitable relief, taking note of the conduct of the plaintiff, application ought to have been rejected.
7. Learned counsel for the respondent submits that it is not in dispute that O.S.No.50/2009 was filed by the plaintiff but was subsequently withdrawn after obtaining necessary permission from the Court and once permission has been granted, whatever order has been passed in the earlier proceedings cannot be looked into nor be taken to be a part of the record. It is further submitted that the present petitioners were parties in the said proceedings and by virtue of non-mentioning of the previous proceedings no prejudice has been caused nor can it be said that any favourable order has been obtained by suppression of the pendency of the earlier proceedings.
8. Heard both the sides. The case of the plaintiff is that the property is ancestral property and he has inherited rights from Muninarasimhaiah, his father. It is not in dispute that the revenue records stood in the name of Muninarasimhaiah till the year 2006 with respect to the extent of 6 acres 6 guntas in Sy. No.45. It is stated that it is only in 2006 after the death of Muninarasimhaiah when an application came to be filed by the plaintiff seeking entry of his name by virtue of inheritance that an order came to be passed directing entries in the revenue records to be made over in the name of defendants. It is however to be noted that the said order had been challenged and finally in W.P.No.12803/2011 though the entries were permitted to remain on record, it was clarified that entries would be subject to the outcome of the suit before the Civil Court. It is contended that this would clarify that there is no finality with respect to the legality of the revenue entries and in fact the procedure prescribed under Section 135 of the Land Revenue Act would make it clear that despite orders becoming final after exhausting the appeal/revisional hierarchy, the same are still subject to orders of the civil Court.
9. Insofar as the contention of the defendants that boundaries would prevail over measurement and that the extent that has been conveyed under the sale deed of 1952 in favour of the defendants’ father was an extent of 6 acres 6 guntas and not 17 guntas as mentioned cannot be accepted at this stage. It is to be noted that while deciding an application for injunction Court is not expected to conduct mini trial for that would prejudice the finding to be recorded after trial. Even otherwise prima facie perusal of the sale deed of the year 1952 would indicate that extent that has been sold is an extent of 17 guntas. It is only after appreciation of evidence the Court can come to a finding as to whether boundaries prevail over measurement and at this stage, the Court is not expected to enter into such an enquiry. The finding while considering the application under Order 39 Rules 1 and 2 is also prima facie subject to final orders to be passed by the trial Court. Both the Courts have concurrently recorded a finding that the extent that has been sold to the defendants’ father is 17 guntas. On a plain reading of the sale deed, question as to whether the extent that has been conveyed is something beyond 17 guntas as contended by the defendants is a matter that would require full-fledged trial.
10. Insofar as the contention of suppression of material fact, as already observed above, it is clear that non-mentioning of the proceedings in O.S.No.50/2009 has in no way prejudiced the findings that have been made by the trial Court while considering the application for grant of injunction. In light of withdrawal of O.S.No.50/2009 no reliance can be placed as regards to the order passed before the suit was withdrawn. It is also to be noted that it cannot be contended that the findings on the application under Order 39 Rules 1 and 2 passed in O.S.No.50/2009 can operate as res judicata in light of the order passed under Order 39 Rules 1 and 2 in the previous proceedings cannot be taken note of as the said suit itself has been withdrawn. It is also to be noted that the orders passed in favour of the plaintiff have been in force since 16.01.2014 till date which is more than about 5 years. Considering that the suit before the trial Court is at the stage of evidence, it may not be appropriate at this stage to interfere with the order passed by the trial Court which has been concurrently upheld in the miscellaneous appeal. No doubt in an appropriate proceeding despite concurrent findings the Court could interfere if there has been material irregularity. However as observed above, it cannot be stated that findings of the trial Court as affirmed by the appellate Court could be described to be perverse.
11. Finally, the scope of jurisdiction vested in this Court while looking into the orders of the trial Court as well as the appellate court cannot be stretched beyond the supervisory jurisdiction and a finding even if it were to be wrong cannot be interfered with unless there has been material irregularity. The Court cannot sit as a court of appeal and cannot substitute its judgment and interfere with the matter even if the court feels that a different conclusion could be arrived at in exercise of power in writ supervisory jurisdiction. It cannot be stated that the facts or the findings are such that deserve interference.
12. Accordingly, petition is rejected. However, the trial Court to expedite the suit taking note that the suit is of the year 2011 and considering the seniority of the present suit vis-à-vis other suits pending before it.
Sd/- JUDGE VP