Agnel Pavalu Alawaris vs Manohar

Aravind Kumar, J.—This is plaintiffs writ petition seeking for quashing of order passed in Misc. Appeal No. 15/2013 by II Addl. Sr. Civil Judge, Belgaum dated 08.03.2013 whereunder order of temporary injunction granted by the trial Court in O.S. No. 2230/2012 on 01.02.2013 came to be set aside and I.A.I filed by petitioners-plaintiffs under Order 39 Rules 1 and 2 r/w Section 151 CPC came to be dismissed by allowing the appeal.

Though petitioners have termed this writ petition as one having been filed under Articles 226 and 227 of the Constitution of India, this Court is of the considered view that scrutiny, examination and adjudication of the impugned order would within the parameters of Article 227 of the Constitution of India namely, in exercise of the supervisory jurisdiction and in this background, impugned order is being examined.

Parties are referred to as per their rank in the trial Court.

Plaintiffs have filed a suit for perpetual injunction in respect of suit schedule property measuring 2 acres 8 guntas in R.S. No. 202/2A situated at Hindalga, Belgaum morefully described in the plaint schedule (hereinafter referred to as ''suit schedule property'' for brevity) contending inter alia that they are the owners of said property and defendants had denied their title to the said property and as such, they were constrained to file a suit in O.S. No. 1179/1991 for declaration and perpetual injunction which suit came to be dismissed on 05.07.1994 and appeal R.A. No. 120/1994 filed against said judgment and decree also came to be dismissed on 02.08.1997 and said judgment and decree passed by the trial Court as well as lower appellate Court came to be modified by this Court in RSA No. 1001/1997 by judgment and decree dated 24.07.2006 and as such, plaintiffs contend that they are the absolute owners in lawful possession and enjoyment of suit property without any interference from anyone. It was further contended that defendants have no manner of right, title or interest over the suit property and defendants had purchased 3 acres 28 guntas in R.S. No. 202/2B of Hindalga village from its owners and sold 3 acres 7 guntas in favour of Syndicate Bank Coop. Housing Society Ltd., Belgaum and had retained 21 guntas of land in the said Sy. No. and only to that extent, they are in possession and enjoyment and taking undue advantage of plaintiffs innocence, defendants attempted to encroach over suit schedule property and as such, they sought for relief of perpetual injunction. On similar lines I.A. No. 1 under Order 39 Rules 1 and 2 CPC also came to be filed for the relief of temporary injunction.

Defendants on service of suit summons, appeared and filed their detailed written statement and objections denying the averments made in the plaint except to the extent expressly admitted in the written statement. I.A. No. 1 filed by plaintiff was also resisted by defendants and said application came to be allowed by the trial Court by order dated 01.02.2013 by granting an order of temporary injunction in favour of plaintiff. Being aggrieved by said order, third defendant filed a Misc. Appeal No. 15/2013. Lower appellate Court after considering the rival contentions and on evaluation of the documents available on record, has arrived at a conclusion that order of temporary injunction granted in favour of plaintiff is contrary to facts and as such, has set aside the order of temporary injunction by dismissing I.A.I. It is this order which is sought to be quashed at the instance of plaintiffs in this writ petition.

It is the contention of Mr. Sanjay Katageri, learned Advocate appearing for plaintiffs that order passed by the lower appellate Court is erroneous and lower appellate court has not considered the boundaries as described in the suit and decree passed in RSA No. 1001/1997 and only portion towards western side of the suit property, there was minor difference and even if it is to be so, area measuring to an extent of 3 acres 28 guntas as stated in RSA decree had got reduced to an extent of 2 acres 8 guntas assuming a portion as sold or encroached by defendants and as such order of temporary injunction granted by trial Court in favour of plaintiff should not have been set aside by appellate Court. He would also submit that lower appellate Court has sat over the judgment and decree passed by this Court in RSA No. 1001/1997 and as such, order passed by lower appellate Court is erroneous and liable to be set aside. On these amongst other grounds urged in the writ petition plaintiffs have sought for setting aside the order passed by lower appellate Court.

Having heard the learned Advocate appearing for petitioner and on bestowing my careful attention to the writ papers, this Court is of the considered view that lower appellate Court has taken into account the well recognised principles for grant of order of temporary injunction namely, prima-facie case, balance of convenience and irreparable loss and injury that may be caused to either of the parties for dissolving order of temporary injunction granted in favour of plaintiff by the trial Court. Said finding recorded by the lower appellate Court does not suffer from any infirmities either on facts or in law for the reasons that would unfold herein below.

At the outset it requires to be noticed that this is second round of litigation between the parties. At the cost of repetition, it requires to be noticed that undisputedly plaintiffs herein had filed suit in O.S. No. 1179/1991 against defendants in respect of two items of properties namely, R.S. No. 220/2A and 220/2B in all measuring 3 acres 28 guntas. Said suit came to be dismissed on 05.07.1994 and said judgment and decree came to be affirmed in R.A. No. 120/1994 by judgment and decree dated 02.08.1997. Plaintiffs being aggrieved by the same, pursued their grievance before this Court by filing an appeal RSA No. 1001/1997. In the said appeal, undisputedly, plaintiffs restricted their prayer to 2 acres 8 guntas in R.S. No. 202/2A and as such, appeal to the said extent was allowed and suit in O.S. No. 1179/1991 came to be decreed accordingly. In other words, plaintiffs did not have any claim beyond 2 acres 8 guntas and they also did not claim any right over Sy. No. 220/2B.

Plea of the plaintiffs before trial Court was that remaining extent of R.S. No .202/2B was only 21 guntas and the same had been retained by the defendants and they have wrongly described description of the property in the sale deed dated 14.07.1987 executed in favour of the Syndicate Bank Staff Co-op. Housing Society Ltd., Belgaum which was controverted by third defendant by contending that Rectification Deed dated 01.09.2001 executed by them in favour of Syndicate Bank Co. Op. Housing Society discloses that property described thereunder as well as map annexed to the sale deed was with errors and as such, it was corrected by a revised map appended to the Deed of Rectification which indicated or disclosed that Kadolkar family (defendants family) have described the area sold to the Housing Society and exact location of the remaining area retained by the family as 21 guntas of land along with excess area located in R.S. No. 202/2B in respect of which plaintiffs have no semblance of right or in other words, defendants contended that they are in possession of said excess land. It is in this background lower appellate Court has recorded a categorical finding that plaintiffs have restricted their prayer for declaration and injunction in respect of R.S. No. 202/2A to an extent of 2 acres 8 guntas and the very fact that they have given up their rights in respect of any excess land and had confined their claim for declaration in respect of the land measuring 2 acres 8 guntas indicated that plaintiffs family knew about factual position and accordingly got the appeal disposed of by restricting their claim to the extent of 2 acres 8 guntas and they cannot have any claim beyond said extent.

In fact, it has been rightly pointed out by the lower appellate Court that defendants family (Kadolkar family) never disputed that plaintiffs family was the owner of 2 acres 8 guntas in R.S. No. 202/2A. In fact, defendants have produced order dated 16.02.2001 passed by the ADLR indicating that there was an excess area of one acre in R.S. No. 202/2B in possession of defendants family which was also within the knowledge of plaintiffs family. When defendants have specifically contended that they have not interfered with possession and enjoyment of 2 acres 8 guntas in R.S. No. 202/2A by plaintiffs and there being a decree operating in favour of plaintiffs to that extent, nothing prevented the plaintiffs from executing the said decree in accordance with law or in respect of the decree that has already been passed. There cannot be successive decrees being passed for the same relief in respect of same properties. These aspects have been succinctly discussed by the lower appellate Court in paragraphs 17, 18 and 19 and has arrived at a conclusion to the following effect:

"The boundaries given in previous litigation by Alwaris family totally differs with the boundaries given to suit property in the instant suit. In view of all these facts and circumstances it has to be held that the plaintiffs have suppressed vital facts and also have not come to the Court with clean hands."

(emphasis supplied)

It is in this background, lower appellate Court has rightly arrived at a conclusion that plaintiffs have not satisfied three necessary ingredients for grant of order of temporary injunction and as such, it has reversed the finding recorded by trial Court which is in consonance with material documents available on record. There is no infirmity whatsoever committed by the lower appellate Court so as to enable this Court to exercise supervisory jurisdiction to upset well recorded finding of facts by the lower appellate Court.

Hence, this Court is of the considered view that writ petition lacks merit and it is liable to be dismissed. Accordingly, it is hereby dismissed.