Writ Petition No. 32587 of 2019 · The High Court
Case Details
- 1 - NC: 2025:KHC:9485 WP No. 32587 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE M.G.S. KAMAL WRIT PETITION NO. 32587 OF 2019 (GM-CPC) BETWEEN: TAKRA NAIK, S/O LATE NANYA NAIK, AGED ABOUT 63 YEARS, OCC: AGRICULTURE R/OF MADIKINICHAPUR THANDA VILLAGE, HARAPANAHALLI TALUK, BELLARI DISTRICT - 583 131. (BY SRI. PRABHUGOUD B. TUMBIGI, ADVOCATE) …PETITIONER Digitally signed by ROOPA R U Location: HIGH COURT OF KARNATAKA AND: 1. CHANDRA NAIK, S/O RAMA NAIK, AGED ABOUT 37 YEARS, OCC: AGRICULTURIST, R/OF BEKKAMATTI THANDA, HARAPANAHALLI TALUKA BELLARY DISTRICT - 583 131. 2. SHARADA BAI W/O LATE KUMAR NAIK, AGED ABOUT 35 YEARS, R/OF BEKKAMATTI THANDA, HARAPANAHALLI TALUKA, BELLARY DISTRICT - 583 131. (BY SRI. KARTHIK B.Y, ADVOCATE FOR R1; SRI. PRAKASH SALMANI, ADVOCATE FOR C/R2) …RESPONDENTS - 2 - NC: 2025:KHC:9485 WP No. 32587 of 2019 THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 15.7.2019 PASSED IN M.A.NO.11/2019 BY THE SENIOR CIVIL JUDGE AND JMFC HARAPANAHALLI PRODUCED VIDE ANNEXURE-A TO THE WRIT PETITION AND
Legal Reasoning
CONSEQUENTLY CONFIRM THE ORDER DATED 8.3.2019 PASSED ON I.A.NO.I IN O.S.NO.151/2018 BY THE CIVIL JUDGE AND JMFC HARAPANAHALLI, PRODUCED VIDE ANNEXURE-L TO
Decision
THE WRIT PETITION AND ETC., THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE M.G.S. KAMAL ORAL ORDER This petition is by the plaintiff in OS.No.151/2018 pending consideration on the file of Civil Judge and JMFC, Harapanahalli ('trial Court' for short). By order dated 08.03.2019 the trial Court had granted interim order of injuction in favour of the plaintiff. Aggrieved by the said order defendants filed Miscellaneous Appeal in M.A.No.11/2019, on the file of Senior Civil Judge, JMFC, Harapanahalli ('First Appellate Court' for short), in which, the First Appellate Court while allowing said Miscellaneous Appeal and set aside the - 3 - NC: 2025:KHC:9485 WP No. 32587 of 2019 order dated 08.03.2019 passed by the Trial Court. Aggrieved by the same the plaintiff is before this Court. 2. The said suit in OS.No.151/2018 is filed by the plaintiff/petitioner herein contending; a) That one Lambani Nanya Naik S/o. Gemya Naik purported to have been granted suit schedule property in Sy.No.3/A/1 measuring 5 acres 16 guntas situated at Kallugudi Village, Harapanahalli Taluk, Davangere District in the year 1966. That ever since the grant so made said Nanya Naik S/o. Gemya Naik was in possession and enjoyment of the said land. b) That the said Nanya Naik S/o. Gemya Naik had three daughters and the plaintiff is his only son. The said Nanya Naik S/o.Gemya Naik passed away on 02.01.1977, upon his demise revenue records were mutated in the name of the petitioner/plaintiff on 28.04.2016 vide MR.No.H- 29/2015-16. - 4 - NC: 2025:KHC:9485 WP No. 32587 of 2019 c) That respondents/defendants having no right in the suit property caused interfering hence, filed suit for declaration of his title and possession and for consequential relief for permanent injunction. d) An application under Order 39 rule 1 and 2 read with Section 151 of CPC came to be filed along with the plaint. 3. In the written statement to the plaint and the objection statement to the said application defendants apart from specifically denying the case of the plaintiff/petitioner, further contended; a) That the suit schedule property originally belonged to their grandfather who is known and called as 'HOSHATTI LAMBANI NANYA NAIK S/o. MEGYA NAIK'. That the said Hoshatti Lambani Nanya Naik was also called as 'Lambani Nanya Naik Nichhapura'. That in the hand written RTC extracts his name has been reflected from the year 1968-69 to 2014-15. Since defendants - 5 - NC: 2025:KHC:9485 WP No. 32587 of 2019 remained in joint family, none of them have sought for change of entries in the revenue records. b) That the plaintiff without having any concern or relationship with the family of the defendants or of the said Hosahatti Lambani Nanya Naik, taking advantage of similarity in the names put up a false claim and obtained his name entered in the revenue records. c) That the defendants on learning about the said entries in the revenue records had even initiated proceedings before the Divisional Commissioner seeking restoration of their name in the revenue records by cancellation of the name of the petitioner/plaintiff and the said proceedings have been disposed of with the observation that the claims would be determined subject to the outcome of the pending suit. d) That another person by name L.NANYA NAIK S/o.HARI NAIK, misusing the circumstances on - 6 - NC: 2025:KHC:9485 WP No. 32587 of 2019 the basis of false documents obtained financial assistance from ICICI Bank, Davangere for a sum of Rs.3,80,200/- which is entered in the revenue records and the respondents/defendants have issued notice to the said bank in this regard. 4. The Trial Court on consideration of the aforesaid claim and the counter claim by order dated 08.03.2019 allowed the application filed by the plaintiff under Order 39 rule 1 and 2 of CPC (I.A.No.I), restraining the defendants from interfering with the peaceful possession and enjoyment of the suit property by the plaintiff until disposal. 5. Being aggrieved, defendants preferred Miscellaneous Appeal in MA.No.11/2019 under Order 43 rule 1(r) of CPC. By the impugned order, the First Appellate Court allowed the said appeal and set-aside the order passed by the Trial Court. Aggrieved by the same present writ petition by the plaintiff. 6. Learned counsel for the petitioner/plaintiff, taking this Court through the reasoning assigned by the Trial Court as - 7 - NC: 2025:KHC:9485 WP No. 32587 of 2019 well as the First Appellate Court submits that the First Appellate Court ought not to have interfered with a reasoning and conclusion arrived at by the Trial Court without reference to the documents produced by the plaintiff. He submits that the Trial Court taking note of the claims made by the petitioner/plaintiff and by the respondents/defendants of their lineage through and under Lambani Nanya Naik, had rightly come to the conclusion that the said issue had to be thrashed out during the trial and has thus found prima facie case in favour of the plaintiff in allowing the application. That, on the contrary First Appellate Court, though had concurred with the said reasoning the Trial Court, had however erred in allowing the appeal by holding that the plaintiff had not produced documents convincing enough to confirm the order of interim injunction. He submits plaintiff had indeed produced the copy settlement registrar and the copies of the RTC extracts which reflected not only the name of his grandfather but also of the plaintiff which is sufficient enough for the purpose of consideration of prima facie case. Hence, seeks for setting aside of the order passed by the First Appellate Court and to allow the writ petition. - 8 - NC: 2025:KHC:9485 WP No. 32587 of 2019 7. Per contra, learned counsel appearing for the respondent/defendants taking this Court through the averments made in the written statement and the reasoning assigned in the trial Court submits that merely because there is similarity in the names of the father of plaintiff and that of grandfather of the defendants, the plaintiff is taking undue advantage of the circumstances. He specifically submits, even as per the averments made by the plaintiff, the name of his father is Nanya Naik S/o. Gemya Naik, while the name of the grandfather of the defendants is Nanya Naik S/o.Megya Naik. He submits even according to the plaintiff, his name came to be entered into the revenue records only in the year 2016, even before which another person by the name Nanya Naik S/o. Hari Naik had fraudulently got his name entered into and even obtained financial assistance from ICICI Bank against which the defendants have already taken action. He also refers to the document produced along with the statement of objection at Annexure-R1, which is a re-settlement register of the concerned village, to point out the name of their grandfather being Hosahatti Thanda Lambani Nanya Naik. He further refers to the RTC extract produced at Annexures-R2 to R6, wherein, - 9 - NC: 2025:KHC:9485 WP No. 32587 of 2019 name of Nanya Naik Nichhapura is mentioned. He further refers to the proceeding initiated by the father and uncle of the defendants under Section 136(2) of the Karnataka Land Revenue Act, 1964, before the Assistant Commissioner, even before the institution of the present suit. He also refers to the voters list of the family of defendants to contends that the name of Nanya Naik is reflected amongst the names of the family members of defendants even for the year 1966. He submits that above documents produced by the defendants would clearly reveal that the subject property belong to the defendants and their forefathers and not to the plaintiff. Hence, seeks for dismissal of the writ petition. 8. Heard and perused the records. 9. Trial Court, while granting the interim order of injunction had taken note of the similarity of the names of the father of the plaintiff and the grandfather of the defendants. Having taken note of the same, the Trial Court observed that whether the Nanya Naik is the father of the plaintiff or whether he is the grandfather of the defendants has to be decided during the trial and since the documents produced by the - 10 - NC: 2025:KHC:9485 WP No. 32587 of 2019 plaintiff would prima facie disclose the properties standing in the name of the plaintiff was sufficient enough to grant the interim order of injunction and accordingly proceed to allow the said application. 10. The First Appellate Court on the other hand has probed the matter further beyond the documents produced by the plaintiff. At para 14 of the impugned order, the First Appellate Court has given the following reasoning: "14. The defendants on the other hand produced the resettlement register for the year 1966 in which Sl.No.3 the name of Hosahatti Thanda Lambani Nanya Naik is mentioned as owner and possessor of the suit schedule property. The resettlement register standing in the name of grandfather of the defendants, but in the RTC only Lambani Nanya Naika Nichhapura is mentioned. As per the defendants his grandfather Hosahatti Thanda Lambani Nanya Naika is also called Lambani Nanya Naik Nichhapura this fact can be decided only after full- pledged trial. Whether the Hosahatti Thanda Lambani Nanya Naik and Lambani Nanya Naik Nichhapura is person one and the same or not can be decided after full fledge trial, and moreover the resettlement register produced by the defendants standing in the name of grandfather of the defendant i.e., Hosahatti Thanda Lambani Nanya Naik. The ROR produced by the plaintiff is standing in the name of one person Nanya Naika Nichhapura whether such Nanya Naika Nichhapura is the grandfather of the plaintiff or not can be decided after full-pledged trial. Throughout the pleadings the plaintiff nowhere stated his grandfather also called as Nanya Naika Nichhapura. He specifically stated his grandfather name is Lambani Nanya Naik @ Gemya Naika. But this name is not mentioned in any of the revenue records of the suit schedule property. Hence, - 11 - NC: 2025:KHC:9485 WP No. 32587 of 2019 from the pleadings and documentary evidence it is very clear that because of similarity of the name of grandfather's of the plaintiff and defendants this confusion has been arise. These facts at this stage cannot be decided there is a huge cloud on the title of the plaintiff over the suit schedule property. At this stage the evidence produced by the plaintiff are not sufficient to hold that the plaintiff has made out prima facie case. In order to prove prima facie case these documentary evidence produced by the plaintiff are insufficient. Hence, balance of convenience also not lies in his these favour. Hence, without observing documents the lower court has granted temporary injunction order holding that the resettlement register standing in the name of plaintiff's grandfather, but infact the resettlement register produced by the defendants and that resettlement register standing in the name of grandfather of the defendants not in the name of the plaintiff's grandfather. Hence it is very necessary to interfere in the impugned order passed by the lower court for the ends of justice. Hence, I answer the point No.1 in the affirmative and point No.2 in the negative." 11. On perusal of the aforesaid reasoning, it is seen that the First Appellate Court has not only seen the similarity of the names between the plaintiff's father and the grandfather of the defendants but has also ascertained that plaintiff has referred name of his father as 'Lambani Nanya Naik alias Gemya Naik'. While the defendants have claimed the name of their grandfather as 'Hosahatti Lambani Naik' as also known as 'Nanya Naik Nichhapura'. The revenue records produced by the - 12 - NC: 2025:KHC:9485 WP No. 32587 of 2019 defendants, according to the finding of the First Appellate Court, reflect the name of 'Lambani Nanya Naik Nichhapura'. 12. The plaintiff, on the other hand, though has produced the settlement register and the RTC extracts reflecting his name, it is to be seen that the name of the plaintiff has been included in the revenue records only in the year 2016. A copy of the mutation register extract furnished by the learned counsel for the petitioner/plaintiff at the time of argument would reveal that the name of the petitioner/plaintiff has been mutated vide MR.No.H-29 on 16.02.2016 in respect of the suit property, where the name of 'Nanya Naik Nichhapura' has been shown as the original owner. Further, there is already an entry vide MR.No.T-13/2015-16 in the name of Manager, ICICI Bank Limited, Davangere. No where in the plaint does the plaintiff refer to the name of 'Nanya Naik Nichhapura'. Though the learned counsel for the petitioner/plaintiff vehemently submitted 'Nichhapura' is the name of the place which belong to the plaintiff and his grandfather, as regards entry of ICICI Bank is concerned, learned counsel for the petitioner submits that the said entry was made at the instance of another person with similar names Nanya Naik in collusion of the defendants, - 13 - NC: 2025:KHC:9485 WP No. 32587 of 2019 which was not within the knowledge of the plaintiff. Contrary to the said contention in the last paragraph of written statement, the defendants have contended that against the entry in RTC extract with regard to Nanya Naik S/o. Hari Naik obtaining the loan, they have already initiated proceedings in this regard. 13. From the aforesaid aspects, clearly the dispute has arise on account of similarity between the names of the father of the plaintiff and the grandfather of the defendants. Though both the Courts have rightly come to the conclusion that the said issue has to be sorted out during the trial, the question to be considered at this juncture is whether the plaintiff has made out a prima facie case for grant of interim order of injunction as held in affirmative by the Trial Court and in the negative by the First Appellate Court. 14. In the written statement defendants have specifically contended the name of their grandfather is 'Hoshatti Thanda Nanya Naik S/o.Megya Naik' also known as 'Lambani Nanya Naik Nichhapura'. This is not the name which has been claimed by the plaintiff. According to the plaintiff, name of his father is 'Nanya Naik S/o. Gemya Naik' and there is no - 14 - NC: 2025:KHC:9485 WP No. 32587 of 2019 reference to 'Nichhapura' in the plaint by the plaintiff. The plaintiff has not produced any revenue records prior to the year 2016. Even in the RTC extracts produced at Annexure-E series, name of Nanya Naik Nichhapura is mentioned. It is in these circumstances, the First Appellate Court has declined to accept the case of the plaintiff of he having made out prima facie case for the purpose of grant of interim order. This Court on perusal of RTC extracts produced by the defendants, finds the reason given by the First Appellate Court are in consonance with the said documents. 15. This Court, in the above circumstances and in the absence of any other material produced by the plaintiff, do not find any error or irregularity committed by the First Appellate Court in passing the order. Accordingly, petition is dismissed. The order passed in the First Appellate Court is confirmed. Since the suit is of the year 2018, the Trial Court shall endeavour to dispose of the same as expeditiously as possible. It is made clear the order passed in this writ petition is only to the extent of the grounds urged in the writ petition, reasons assigned herein above are not to be construed as - 15 - NC: 2025:KHC:9485 WP No. 32587 of 2019 expression of any the opinion on the merits of the case. Trial should be conducted, matter should be disposed of independently based on the documentary and other evidence to be placed on record by the parties. Sd/- (M.G.S. KAMAL) JUDGE PK List No.: 1 Sl No.: 11 CT: BHK