IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT W.P.NO.26954 OF 2019 (GM-CPC) BETWEEN:
1. MEENAKSHAMMA, W/O MANJAPPA, AGED ABOUT 58 YEARS, 2. GANAPATHAPPA, S/O MANJAPPA, AGED ABOUT 46 YEARS, 3. JANARDHAN, S/O MANJAPPA, AGED ABOUT 41 YEARS, 4. BENKESHAPPA, S/O MANJAPPA, AGED ABOUT 53 YEARS, ALL ARE AGRICULTURIST AND RESIDENT OF KELAGINA KIRAGUNASI VILLAGE, NOW RESIDENT OF SORABA TOWN, KANKERI LAYOUT, SORAB TALUK, SHIVAMOGGA DISTRICT-577429.
5. SMT.VIJAYA KUMARI, W/O SHINANDAPPA, AGED ABOUT 45 YEARS, RESIDENT OF T.G.KOPPA VILLAGE, KUPPAGADDE HOBLI, SORABA TALUK-577429, SHIVAMOGGA.
6. SMT.MANJAMMA, W/O GANAPATHI, AGED ABOUT 45 YEARS, RESIDENT OF T.G.GUNJANURU VILLAGE, CHANDRAGUTTI HOBLI, SORABA TALUKA-577429, SHIVAMOGGA. ... PETITIONERS (BY SRI.VARDHAMAN V.GUNJAL, ADVOCATE) AND:
1. V SIDDAPA, S/O KARIBASAPPA, AGED ABOUT 56 YEARS, RESIDENT OF YALASI GRAMA, KASABA HOBLI-577429, SORABA TALUKA.
2. THE DEPUTY COMMISSIONER, SHIVAMOGGA DISTRICT, SHIVAMOGGA -577201. ... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH ANNEXURE-A AND A1 DATED 31ST JANUARY, 2019 IN M.A.NO.1/2019 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC, SORBA, AND CONSEQUENTLY RESTORE ANNEXURE-B ORDER PASSED ON I.A.NO.IV DATED 20.12.2018 BY THE CIVIL JUDGE AND JMFC SORABA IN O.S.NO.194/2018 (WRONGLY TYPED AS 194/1998 IN PAGE 3 OF THE ORDER SHEET) AND ETC.
THIS WRIT PETITION COMING ON PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioners being the plaintiffs in a possessory suit in O.S.No.194/2018 are knocking at the doors of Writ Court for assailing the order dated 31.01.2019, a copy whereof is at Annexure-A whereby, the learned Senior Civil Judge, Soraba, having allowed first respondent’s M.A.No.1/2019 has set aside trial Court order dated 20.12.2018 by which the Tahsildar of Soraba was appointed as a Receiver for the suit schedule properties.
2. Learned counsel for the petitioners argues that the impugned order is flawsome inasmuch as, the learned trial judge had after considering all aspects of the matter appointed the jurisdictional Tahsildar as Receiver of the suit property; the said appointment could not have been altered by the lower appellate Court without due application of mind; the right of the other side is claimed under a testament; the main claim of the petitioners for grant of occupancy is pending consideration on the file of the jurisdictional Tribunal; all this having not been adverted to constitutes an error apparent on the face of the record warranting indulgence of this court for setting the same at naught.
3. Having heard the learned counsel for the petitioners and having perused the petition papers this Court declines to grant indulgence in the matter because:
i) the lower appellate Court having exercised the discretion according to rules of reason & justice, has found that the suit property is a subject matter of rival claim between the parties; the impugned order which is the product of exercise of such discretion does not ordinarily call for deeper scrutiny at the hands of Writ Court exercising restrictive supervisory jurisdiction under Article 227 of the Constitution of India;
ii) the contention that the case merited appointment of a Receiver is bit difficult to countenance; a coordinate bench of this Court in the case of GANAPATHI PARAMESHWARA BHAT Vs. STATE OF KARNATAKA, 2003 AIHC 2275 has held that a receiver may be appointed where some of the parties are in possession or in sole possession of the suit properties to the exclusion of others and that they are enjoying the usufructs of the property excluding their companions or the rightful owners; this requirement is not satisfied in the case of the petitioners;
iii) a Receiver can only be appointed when there is a prima facie case in favour of the applicants and the case calls for taking urgent measure; this apart, a case is to be made out to show that it is just & convenient for its adjudication as held by the Apex Court in the case of Salima Bi Vs. Pyari Begum 2009 SCC 560, and iv) admittedly, petitioners claim for occupancy is yet to be decided by the jurisdictional Tribunal under Section 48A of the Karnataka Land Reforms Act, 1961; it is a settled legal position that all tenanted lands vest in the State by operation of law and till occupancy is granted, the claimant is a persona non grata so far as the land is concerned, expecially when a testament is pressed into service by the other side making the bequest of the suit land in favour of the first respondent.
In the above circumstances, this writ petition being devoid of merits, stands rejected.
Sd/- JUDGE Cbc/Bsv