SMT. CHOWDAMMA v. ESHWAR

SINCE DEAD REPRESENTED BY HER LEGAL HEIR SMT. MUDDAMMA, W/O BYYAREDDY S.C., AGED ABOUT 55 YEARS, R/AT MITTEMARI POST - 561 207, BAGEPALLI TALUK, CHICKABALLAPUR DISTRICT. (BY SRI. MADHU S.B., ADVOCATE) AND:

1. ESHWAR, S/O ANJINAPPA, AGED ABOUT 31 YEARS, …PETITIONER - 2 - NC: 2026:KHC:26129 WP No. 16528 of 2022 HC-KAR R/O CHINNAOBAIAHGARIHALLI VILLAGE, MITTEMARI POST - 561 207, BAGEPALLI TALUK, CHICKABALLAPURA DISTRICT.

2. KITTI, S/O ANJINAPPA, AGED ABOUT 29 YEARS, R/O CHINNAOBAIAHGARIHALLI VILLAGE, MITTEMARI POST - 561 207, BAGEPALLI TALUK, CHICKABALLAPURA DISTRICT.

3. ANIL, S/O ANJINAPPA, AGED ABOUT 27 YEARS, R/O CHINNAOBAIAHGARIHALLI VILLAGE, MITTEMARI POST - 561 207, BAGEPALLI TALUK, CHICKABALLAPURA DISTRICT.

4. HARISH, S/O LATE NARAYANASWAMY, AGED ABOUT 28 YEARS, R/O CHINNAOBAIAHGARIHALLI VILLAGE, MITTEMARI POST - 561 207, BAGEPALLI TALUK, CHICKABALLAPURA DISTRICT. …RESPONDENTS (BY SRI. BHARAT S RAO., ADVOCATE FOR C/R1 - R4) THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 29.07.2022 OF THE FIRST APPELLATE COURT PASSED IN MA NO.25/2021 I.E. ANNX-A AND CONFIRM THE ORDER - 3 - NC: 2026:KHC:26129 WP No. 16528 of 2022 HC-KAR DATED 19.11.2019 PASSED BY THE TRIAL COURT IN OS NO.297/2018 ON IA NO.1 I.E. ANNX-D. UNDER ORDER 39 RULE 1 AND 2 OF CPC AND ETC., THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL ORAL ORDER This writ petition is filed challenging the order dated

29.07.2022 passed in MA No.25 of 2021 by the Senior Civil Judge, Bagepalli (hereinafter referred to as 'the Trial Court' for short).

2. Sri Madhu S.B., learned counsel appearing for the petitioner submits that the petitioner/plaintiffs had filed a suit for injunction against the respondents herein as they were interfering with the peaceful possession and enjoyment of the suit schedule property. It is submitted that the Trial Court considered the case of the plaintiff and on being satisfied that a prima facie case is made out has granted temporary injunction. However, the Appellate Court on an erroneous finding, reversed the same. - 4 - NC: 2026:KHC:26129 WP No. 16528 of 2022 HC-KAR

3. It is further submitted that the plaintiff was granted land in the year 1991-92, however, grant order was issued in the year 2017 and for more than three decades, the petitioner/plaintiffs are in possession of more than 4 acres of the land and the petitioner has filed number of applications before the authorities for grant of remaining land. Hence, he seeks to set aside the order of the Appellate Court by granting temporary injunction against the respondents/defendants to the extent of 4 acres of the land which is in possession of the plaintiff/petitioner.

4. Per contra, Sri Bharat S Rao, learned counsel appearing for respondents No.1 to 4 supports the order of the Appellate Court and submits that the defendants have no objection whatsoever to grant temporary injunction insofar as the suit schedule property i.e. 2 Acres of land is concerned. However, in the guise of temporary injunction, the petitioner is trying to enjoy karab land which is adjacent to the granted land to the plaintiff and in the said land, the defendants are in possession and cultivating. It is submitted that the Appellate Court has recorded detailed reasons for setting aside the order - 5 - NC: 2026:KHC:26129 WP No. 16528 of 2022 HC-KAR of the Trial Court and hence he seeks to affirm the said order by dismissing the petition.

5. I have heard the arguments of the learned counsel appearing for the petitioner, learned counsel appearing for the respondents and meticulously perused the material available on record.

6. The plaintiff had filed a suit in OS No.297 of 2018, seeking the relief of permanent injunction against the respondents. In the said suit, the plaintiff filed an application under Order XXXIX Rules 1 and 2 of CPC seeking to grant temporary injunction during the pendency of the suit, on the ground that the plaintiff was granted the land by the authorities to an extent of 2 Acres in Sy.No.243/P, situated at Mittemari Village, Bagepalli Taluk, Chikkaballapura District.

7. A perusal of the materials placed before this Court along with the memo would indicate that the plaintiff was granted land by the authorities vide grant order dated

06.03.2017 and pursuant to the said grant, the name of the plaintiff was mutated in the revenue records to the said extent. The plaintiff has placed on record the RTC, Mutation Register - 6 - NC: 2026:KHC:26129 WP No. 16528 of 2022 HC-KAR and other relevant documents. The aforesaid documents clearly indicate that the plaintiff was granted 2 Acres of land in Sy.No. 243/P of Mittemari Village, Bagepalli Taluk. Considering the documents available and pleading on record, I am of the view that the plaintiffs have made out a prima facie case to grant an order of temporary injunction, in so far as the suit schedule property is concerned.

8. The contention of the learned counsel for the petitioner that the petitioner is in occupation and possession of the land for more than the granted land i.e. 4 Acres cannot be gone into as the petitioner has failed to substantiate the same by placing any material before the Court. In the absence of any such materials, mere assertion made before the Appellate Court in the objection filed, cannot be the basis to grant temporary injunction to the extent of 4 Acres of land as sought.

9. For the aforementioned reasons, I proceed to pass the following order. ORDER i) Writ petition is allowed in part. - 7 - NC: 2026:KHC:26129 WP No. 16528 of 2022 HC-KAR ii) Impugned order dated 29.07.2022 passed in M.A. No.25 of 2021 by the Senior Civil Judge, Bagepalli is set aside. Temporary injunction granted by the Trial Court is affirmed. No order as to costs. Sd/- (VIJAYKUMAR A. PATIL) JUDGE MKM List No.: 1 Sl No.: 14