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2022 DIGILAW 476 (KAR)

Mamatha v. T. P. Hithendra

2022-04-05

H.B.PRABHAKARA SASTRY

body2022
JUDGMENT 1. The petitioners herein are the defendants in O.S.No.11/2016, in the Court of learned Senior Civil Judge and J.M.F.C., Sakaleshpur (hereinafter for brevity referred to as 'trial Court'), which suit was filed by the present respondents as plaintiffs for the relief of declaration to declare that the plaintiffs are the absolute owners of the suit schedule properties and also for declaration to the effect that the mutation entries said to have effected by the Tahsildar with respect to the suit schedule properties in favour of the defendants are null and void. Consequently, the relief of permanent injunction has also been sought. 2. The plaintiffs also filed an interlocutory application IA.No.2 under Order XXXIX Rule 1 and 2 read with Sec. 151 of Code of Civil Procedure, 1908 (hereinafter for brevity referred to as 'CPC'). They could able to get an ex parte interim order of temporary injunction in the beginning, however, after the appearance of the defendants, who contested the matter, the trial Court after hearing both side on the said IA.No.2, filed under XXXIX Rule 1 and 2 read with Sec. 151 of CPC, by its order dtd. 25/6/2016, rejected the said IA.No.2 and the ad interim temporary injunction granted earlier was also vacated under the said order dtd. 25/6/2016. 3. Aggrieved by the same, the plaintiffs preferred an appeal under Order XLIII Rule 1 of CPC in M.A.No.3/2016, in the Court of learned V Addl.District and Sessions Judge, Hassan (hereinafter for brevity referred to as 'first Appellate Court'), which after hearing both side, by its order dtd. 8/8/2016, allowed the Miscellaneous Appeal and while setting aside the order dtd. 25/6/2016, passed by the trial Court in O.S.No.11/2016, it restrained the respondents/defendants from alienating the suit schedule property till the disposal of the suit before the trial Court. Challenging the said order of the first Appellate Court, the defendants in the trial Court have preferred this writ petition. 4. 25/6/2016, passed by the trial Court in O.S.No.11/2016, it restrained the respondents/defendants from alienating the suit schedule property till the disposal of the suit before the trial Court. Challenging the said order of the first Appellate Court, the defendants in the trial Court have preferred this writ petition. 4. The learned counsel for the petitioners in his argument vehemently submitted that the trial Court has passed a considerate order after analysing the materials placed before it and had noticed that the defendants have placed the documents, including revenue documents, to show that they are in possession of the property and that they are entitled for their share in the property, as such, with the said observation, it had rightly dismissed IA.No.2 filed by the plaintiffs under Order XXXIX Rule 1 and 2 read with Sec. 151 of CPC. However, the first Appellate Court without appreciating the said facts, has by giving untenable reasons, set aside the order of the trial Court and granted an interim order in favour of the plaintiffs which was not warranted in the circumstances of the case. 5. Learned counsel for the respondents in his argument submitted that though the trial Court noticed the fact that the very suit of the plaintiffs was based upon the Will dtd. 18/1/2013, executed by one Sri T.S.Dayanand, in favour of the plaintiffs, bequeathing the suit schedule property in favour of the plaintiffs, however, the trial Court ignoring the said Will and merely being carried away by an averment that the Will was concocted, has proceeded to indirectly appreciate the merits of the suit of the plaintiffs, which resulted in vacating of the stay granted earlier, as well rejection of IA.No.2 filed under Order XXXIX Rule 1 and 2 read with Sec. 151 of CPC. However, the first Appellate Court has rectified the same by making out a difference between prima facie case and prima facie title, as such, the said order passed by the first Appellate Court does not deserve to be altered or interfered in any manner. 6. It is not in dispute that one Sri T.S.Dayanand, the alleged testator and one Sri T.S.Bhanuprakash and defendant No.4 Smt.Poornima are the children of late Sri T.D.Somashekar. Admittedly, both T.S.Dayanand and T.S.Bhanuprakash, who are the brothers, are dead much prior to the institution of the suit in O.S.No.11/2016. 6. It is not in dispute that one Sri T.S.Dayanand, the alleged testator and one Sri T.S.Bhanuprakash and defendant No.4 Smt.Poornima are the children of late Sri T.D.Somashekar. Admittedly, both T.S.Dayanand and T.S.Bhanuprakash, who are the brothers, are dead much prior to the institution of the suit in O.S.No.11/2016. The father of the plaintiffs by name one Sri T.D.Paramashiva is the younger brother of Sri T.D.Somashekar, who is the father of said T.S.Dayanand and T.S.Bhanuprakash. Thus, the plaintiffs claim themselves to be the cousin brothers of the alleged testator T.S.Dayanand. According to the plaintiffs, in a family arrangement which took place during the life time of T.S.Dayanand, the suit schedule properties have gone to the share of T.S.Dayanand, as such, as an absolute owner of the said suit schedule properties, said T.S.Dayanand has bequeathed the properties under the Will dtd. 18/1/2013 in favour of the plaintiffs. On the contrary, the contention of the defendants is that there was no alleged family arrangement, much less, as contended by the plaintiffs. The defendants are more specific in their contention that suit schedule properties are actually belongs to one Smt.T.S.Nagamma, who is the mother of T.S.Dayanand, T.S.Bhanuprakash and defendant No.4-Smt.Poornima. As such, T.S.Dayanand, T.S.Bhanuprakash and defendant No.4-Smt.Poornima succeeded to the said property. Due to the death of T.S.Bhanuprakash on 19/10/2014, the defendant No.1 as the wife of said T.S.Bhanuprakash and defendant Nos.2 and 3 as the daughters of said T.S.Bhanuprakash along with Smt.Poornima, have succeeded to their share in the property. In addition to the above contention, the defendants have also taken a contention that the revenue records have been mutated in favour of the defendants, as such also, they continued to be the owners of their share of the property and in actual possession of the same. 7. The trial Court while analysing the rival contentions of the parties, appears to have given more impetus on the alleged revenue records and came to an opinion that prima facie the defendants have shown that they are in possession of the property. On the other hand, in order to disbelieve the alleged Will dtd. 18/1/2013 forwarded by the plaintiffs, the trial Court made an observation that the plaintiffs have not placed any document to show as to how the properties under the Will have come into the hands of the alleged testator T.S.Dayanand. On the other hand, in order to disbelieve the alleged Will dtd. 18/1/2013 forwarded by the plaintiffs, the trial Court made an observation that the plaintiffs have not placed any document to show as to how the properties under the Will have come into the hands of the alleged testator T.S.Dayanand. Thus, instead of searching for a prima facie case in the matter before it, the trial Court appears to have transgressed in the arena of appreciation of documents to find out the prima facie title with respect to the suit schedule property. It was suffice for the trial Court to find out for the material in order to ascertain prima facie possession of the property and alleged interference by the other party, if any, in the possession of the property. On the other hand, as observed above, the trial Court ventured into have a primary inspection about the title of the property and proceeded to make an observation regarding the suspicion in the execution of the alleged Will dtd. 18/1/2013. 8. The said error committed by the trial Court was noticed by the first Appellate Court in Miscellaneous Appeal No.3/2016 and it has rightly noticed that for considering the application under Order XXXIX Rule 1 and 2 read with Sec. 151 of CPC, the Court is required to see for a prima facie case, but, not a prima facie title, that too, particularly in the alleged circumstances of the instant case. It is after noticing that the plaintiffs who contended their title over the suit schedule property through an alleged Will dtd. 18/10/2013 and the suit was one for declaration of their title based upon an alleged Will and also noticing that there are all the possibilities of the defendants in the Original Suit creating any third party interest or alienating the property since certain revenue records are said to have been made in their favour in respect of the very same property, the first Appellate Court has rightly restrained the defendants in the Original Suit (respondents before it) from alienating the suit schedule property till disposal of the suit, but, it did not grant the relief of restraining the defendants from interfering in the alleged disposal of the suit schedule property by the plaintiffs. Thus, I do not find any error in the reasoning of the first Appellate Court in arriving at such a conclusion which requires setting aside of the order dtd. 25/6/2016 passed by the trial Court in O.S.No.11/2016. Accordingly, the Writ Petition stands dismissed as devoid of merits.