M.S BHEEMANNA v. Location: high

1. SMT. NAGAMMA W/O ANJINAPPA AGED ABOUT 51 YEARS R/AT DODDA SIDDAVVANAHALLY VILLAGE KASABA HOBLI CHITRADURGA - 577 598

2. ANJINAPPA S/O SANNA HANUMAPPA (BIKKAPPA) AGED ABOUT 53 YEARS R/AT DODDA SIDDAVVANAHALLY VILLAGE KASABA HOBLI CHITRADURGA - 577 598

3. THE PANCHAYATH DEVELOPMENT OFFICER (PDO) DODDASIDDAVVANAHALLI VILLAGE KASABA HOBLI CHITRADURGA - 577 598 - 2 - NC: 2024:KHC:5263 WP No. 3322 of 2020

4. THE EXECUTIVE OFFICER (E.O) TALUK PANCHAYATH, CHITRADURGA - 577 598 …RESPONDENTS (BY SRI. N PRAVEEN KUMAR.,ADVOCATE FOR R4 R1 TO 3 -SERVED-UNREPRESENTED) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO-CALL FOR ENTIRE RECORDS AND SET ASIDE THE ORDER AT ANENXURE-A DATED 11.12.2019 IN M.A.NO.1/2019 PASSED BY THE 1ST ADDITIONAL SENIOR CIVIL JUDGE, CHITRADURGA AND CONFIRM THE ORDERS DATED 19.12.2018 PASSED IN O.S.NO.26/2018 ON I.A.NO.2 AND 3 BOTH UNDER ORDER XXXIX RULE 1 AND 2 R/W SECTION 151 OF CPC GRANTING THE TEMPORARY INJUNCTION BY THE 2ND ADDITIONAL CIVIL JUDGE AND JMFC, CHITRADURGA BY ALLOWING THIS WRIT PETITION AND ETC., THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN B-GROUP THIS DAY, THE COURT PASSED THE FOLLOWING: ORDER The plaintiffs in OS No.26 of 2018 on the file of the learned II Additional Civil Judge, Chitradurga, are seeking to quash the order dated 11.12.2019 passed in MA No.1 of 2019 on the file of the learned I Additional Senior Civil Judge, Chitradurga , allowing the appeal and setting aside the order dated 19.12.2018 passed by the Trial Court allowing IA Nos. 2 and 3 granting temporary injunction against defendant Nos. 1 to 4 under two different applications.

2. Heard Sri. Murthy K, learned counsel for the petitioners and Sri. N Praveen Kumar, learned counsel for the - 3 - NC: 2024:KHC:5263 WP No. 3322 of 2020 respondent No.4. Respondent Nos.1 to 3 are served and unrepresented. Perused the materials on record.

3. Learned counsel for the petitioners submitted that the petitioners as plaintiffs have filed the suit OS No. 26 of 2018 seeking permanent and mandatory injunction against the defendants. The plaintiffs have filed an application - IA.2 seeking direction to defendant Nos. 1 and 2 not to put up construction in 'B' Schedule property and to remove the unauthorized construction made on 'B' Schedule property and filed IA.3 seeking direction to defendant Nos. 3 and 4 not to disburse financial benefits in favour of defendant Nos. 1 and 2, to enable them to construct the structure over 'B' Schedule property. Both the applications were allowed by the Trial Court vide order dated 19.12.2018. Defendant No.1 challenged the order allowing IA No.2 by filing MA No.1 of 2019. The First Appellate Court without application of mind, allowed the appeal by setting aside the order passed on both IA Nos. 2 and 3. The First Appellate Court committed an error in setting aside the order passed by the Trial Court on IA.3. - 4 - NC: 2024:KHC:5263 WP No. 3322 of 2020

4. Learned counsel further submitted that the plaintiffs are claiming right over the schedule property under the registered partition deed dated 15.04.1991, whereunder the property had fallen to the share of the plaintiffs and katha stands in their name. Schedule property is described as property No. 231/1 measuring 80 x 40 feet. The 'B' Schedule property measures 40 x 34 feet which is the portion of 'A' Schedule property, where the defendants started constructing the building by getting financial help from defendant Nos. 3 and

5. Learned counsel submitted that the defendants filed the written statement taking specific contention that they acquired title over the property under "Oppige Pathra" in respect of property bearing No.230 measuring 18 x 24 feet. But no such document was produced before the Trial Court. However, defendant Nos. 3 and 4 have issued the license on the basis of so called "Oppige Pathra", which is admittedly an unauthorized document. Even though, the said document was produced as an additional document before the Trial Court by filing IA No.2 under Order 41 Rule 27 of CPC, the same was rejected by the Court. Therefore, it is clear that the defendants - 5 - NC: 2024:KHC:5263 WP No. 3322 of 2020 are claiming right over different properties bearing No.230 measuring 18 x 24 feet, which is admittedly not the schedule property. Moreover, the title deed on which the defendants are relying was never produced before the Court. Under such circumstances, the Trial Court allowed IA Nos. 2 and 3 granting temporary injunction, but the First Appellate Court proceeded to allow the appeal only on the ground that, defendant Nos. 3 and 4 have issued license for construction of the building and therefore, defendant Nos. 1 and 2 cannot restrain by proceeding with the construction work. The said applications rejected by the First Appellate Court is perverse and illegal and the same is liable to be set aside.

6. Learned counsel for respondent Nos. 3 and 4 submitted that they are only formal parties being the Panchayath Development Officer (PDO) and Taluk Panchayath and they will abide by the orders of the Court.

7. As per the averments made in the plaint, the plaintiffs are claiming right over the 'A' Schedule property i.e., property No. 231/1 measuring East to West by 80 feet, North to South by 40 feet. It is the specific contention of the - 6 - NC: 2024:KHC:5263 WP No. 3322 of 2020 plaintiffs that the said property had fallen to their share under the registered partition deed dated 15.04.1991 entered into between his family members. The Katha stands in the names of the plaintiffs. It is further contention of the plaintiffs that 'B' schedule property measuring 40 x 34 is the portion of the 'A' schedule property and defendants started to make construction by laying the foundation un-authorizedly. Therefore, mandatory injunction was sought against defendant Nos. 1 and 2 from proceeding with construction work. In respect of 'A' schedule property, they are seeking perpetual injunction restraining defendants interfering with their possession and enjoyment of the property.

8. The written statement filed by defendants is produced before the Court, wherein, the defendants have claimed right over the property bearing No. 230 new number 251 measuring 18 x 24 feet and it is stated that they have acquired title under the "Oppige Pathra". Strangely, the said 'Oppige Pathra' is not produced before the Trial Court or before this Court. The impugned judgment passed in MA No.1 of 2019 discloses that IA No.2 was filed under Order 41 Rule 27 of CPC seeking permission to produce additional documents. The said - 7 - NC: 2024:KHC:5263 WP No. 3322 of 2020 application came to be dismissed by the First Appellate Court. The First Appellate Court referred to the said document as a consent deed which is an unregistered deed and therefore, the application to produce the same was dismissed. When the suit schedule property over which the plaintiffs are claiming right is entirely different property bearing No.231/1 measuring East to West 80 feet, North to South 40 feet and there was a registered partition deed in support of the contention of the plaintiffs, they are entitled for grant of temporary injunction against the defendants. Accordingly, the Trial Court allowed IA Nos. 2 and 3.

9. The copy of memorandum of appeal filed before the First Appellate Court in MA No.1 of 2019 was produced before the Court and wherein defendant Nos. 1 and 2 as appellants challenged the order dated 19.12.2018 passed on IA No.2. But there is no challenge to IA No.3 as rightly contended by the learned counsel for the petitioners. However, the First Appellate Court without taking into consideration any of these facts, proceeded to allow the appeal by setting aside the order passed by the Trial Court on both IA Nos.2 and 3, that shows non application of mind by the First Appellate Court. There was - 8 - NC: 2024:KHC:5263 WP No. 3322 of 2020 no reason to justify the impugned judgment passed by the First Appellate Court. The only reason assigned by the First Appellate Court is that defendant Nos. 3 and 4 have issued license for construction of the building on the basis of consent deed and therefore, defendant Nos. 1 and 2 cannot be restrained by way of temporary injunction. The said finding of the First Appellate Court is not only perverse, is illegal and liable to be set aside.

10. In view of the above, I proceed to pass the following: ORDER (i) Writ petition is allowed. (ii) The judgment dated 11.12.2019 passed in MA No.1 of 2019 on the file of the learned I Additional Senior Civil Judge, Chitradurga, is hereby set aside. SPV, List No.: 1 Sl No.: 11 Sd/- JUDGE