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2019 DIGILAW 622 (KAR)

Sadananda v. Tahsildar

2019-03-11

B.VEERAPPA

body2019
JUDGMENT : 1. The unsuccessful plaintiff filed the present writ petition against the order dated 29.05.2018 made in M.A.No.2/2017 on the file of the Senior Civil Judge and JMFC, Sakaleshapura, dismissing the appeal thereby confirming the order dated 28.06.2017 passed by the Trial Court on I.A.No.3 in O.S.No.29/2017 rejecting the application for temporary injunction in respect of item No.2, i.e., Sy.No.207/2C measuring 1 acre 8 guntas situated at Yadehalli, Belagodu Hobli, Sakaleshapura Taluk, Hassan District. 2. The present petitioner/plaintiff filed suit in O.S. No.29/2017 for the relief of permanent injunction in respect of suit schedule properties morefully described in the schedule to the plaint as item Nos.1 and 2, contending that he is the owner in possession of the suit schedule properties and defendants have no manner of right, title and interest over the same. The defendants filed written statement, denied the plaint averments and contended that as on the date of filing of the suit, item No.2 was not granted to the plaintiff and therefore, sought for dismissal of the suit. 3. In the said suit, the petitioner/plaintiff filed an application under Order XXXIX Rule 1 and 2 of Code of Civil Procedure for temporary injunction, reiterating the averments made in the plaint. The defendants filed objections to the said application. The Trial Court, considering the application and objections, by the order dated 28.06.2017, allowed the application in part granting injunction insofar as item No.1 and refused to grant injunction in respect of item No.2. Only insofar as refusal to grant temporary injunction in respect of item No.2, the plaintiff filed M.A.No.2/2017 on the file of Senior Civil Judge and JMFC, Sakaleshapura. After considering the entire material on record, by the Order dated 29.05.2018 M.A.No.2/2017 came to be dismissed. Hence the present writ petition is filed. 4. I have heard the learned counsel for the parties to the lis. 5. Sri Prakash M.Patil, learned counsel for the petitioner contended that the impugned order passed by the lower appellate Court confirming the order passed by the Trial Court is erroneous and contrary to the material on record. He contended that both the Courts below failed to notice that Sy.No.207/2C measuring 1 acre 8 guntas was granted in favour of the petitioner and he has been cultivating the same. He contended that both the Courts below failed to notice that Sy.No.207/2C measuring 1 acre 8 guntas was granted in favour of the petitioner and he has been cultivating the same. He further contended that subsequent to the orders passed by the Courts below, the jurisdictional Tahsildar, by the Order dated 31.07.2018 granted 1 acre 8 guntas in Sy.No.207/2C along with sketch. The said submission is placed on record. Therefore he sought to allow the writ petition. 6. Per contra, Sri H.J.Ananda, learned counsel for respondent No.3 and Sri S. Chandrashekar, learned High Court Government Pleader for respondent Nos.1 and 2, sought to justify the impugned order. Learned HCGP brought to the notice of the Court that the grant certificate dated 31.07.2018 issued by the jurisdictional Tahsilidar is after the disposal of M.A.No.12/2017. It is stated as per sketch prepared by the authority, an extent of 1 acre 8 guntas in Sy.No.207/2C was granted to the petitioner. Therefore, he sought to dismiss the writ petition. 7. Having heard the learned counsel for the parties, admittedly the plaintiff filed suit for permanent injunction in respect of item Nos.1 and 2 of the schedule. In respect of item No.1, injunction is granted by the Trial Court. The present writ petition is confined only with regard to rejection of temporary injunction in respect of item No.2 only, measuring 1 acre 8 guntas in Sy.No.207/2C. In paragraph 4 of the writ petition, the petitioner has taken a specific contention that Sy.No.207/2C measuring 1 acre 8 guntas was granted in favour of the petitioner and petitioner has been in cultivation of the same. The very ground is contrary to the records, as the said land granted to the petitioner only on 31.07.2018 after the impugned orders passed by the Courts below. 8. The Trial Court, considering the entire material on record, has recorded a finding that the plaintiff has failed to prove his possession in respect of item No.2 as on the date of filing of suit. Sy.No.207/2C totally measures 6 acres 36 guntas. In columns 9 and 10 it is mentioned as sarkari bilu. It means, Sy.No.207/2C belongs to State Government. No documents are produced by the plaintiff to establish that he has rights over Sy.No.207/2C measuring 1 acre 8 guntas. The RTC also falsify the contention of the plaintiff insofar as item No.2 is concerned. Sy.No.207/2C totally measures 6 acres 36 guntas. In columns 9 and 10 it is mentioned as sarkari bilu. It means, Sy.No.207/2C belongs to State Government. No documents are produced by the plaintiff to establish that he has rights over Sy.No.207/2C measuring 1 acre 8 guntas. The RTC also falsify the contention of the plaintiff insofar as item No.2 is concerned. The Trial Court further recorded a finding that plaintiff has not produced any material documental to prove that as on the date of filing of the suit, item No.2 was granted in favour of the plaintiff. Accordingly, by the order dated 28.06.2017, refused to grant temporary injunction in respect of item No.2. 9. The lower appellate Court, while confirming the order passed by the Trial Court, in categorical terms recorded a finding that, in order to prove his possession in respect of item No.2, the plaintiff mainly relied upon the photos. The third defendant produced true copy of the sketch which shows that 6.25 metres (20 feet) is demarcated to reserve as cart track in Sy.No.207/2C. The said sketch is issued from the office of the first defendant. The plaintiff has also produced a copy of sketch dated 14.02.2017. The same also shows the existence of 20 feet road in Sy.No.207/2C and Sy.No.208. The argument of the plaintiff that there is no such road in the suit schedule properties, cannot be accepted. 10. The lower appellate court, concurring with the findings of fact recorded by the Trial Court, dismissed the appeal. The documents produced by the respondent as per Annexure R-26 clearly depicts that the land in Sy.No.207/2C measuring 1 acre 8 guntas came to be granted only on 31.07.2018 as per the survey sketch. The survey sketch along with grant certificate clearly depicts grant of land measuring 1 acre 8 guntas in Sy. No.207/2C, after the road is made. 11. In view of the aforesaid reasons and concurrent findings of fact recorded by the Courts below, petitioner has not made out any ground to interfere with the impugned order in exercise of powers under Article 227 of the Constitution of India. Accordingly, writ petition is dismissed. 12. However, it is open for the petitioner to protect his land, if any road is formed as alleged, in accordance with law.