C.N. Sathish vs H.C. Kalachari and Others

Ram Mohan Reddy, J.—The 3rd Defendant in O.S. No. 87/2008, aggrieved by the order dated 2.12.2008 of the Civil Judge (Jr. Dn). Somwarpet Annexure-"E" allowing Plaintiffs I.A. No. 2 under Order 39 Rules 1 and 2 Code of Civil Procedure, restraining him from interfering with the peaceful possession and enjoyment of the suit schedule property, filed M.A. No. 19/2008 before the Civil Judge (Sr. Dn). Madikeri, which when dismissed by order dated 19.08.2010 Annexure-"G", has presented this petition.

The 1st Respondent instituted the suit for (i) declaration that he is the absolute owner in possession and enjoyment of land measuring 3 acres in Sy. No. 27/16, New No. 27/17, consisting of tiled residential house, cattle shed, drinking water open well and other fixtures and structures attached to earth situated at Yalkanur Hosalli Village, Somwarpet Taluk, Kodagu District, (ii) declaration that the Sale Deed dated 7.6.2008 executed in favour of the Petitioner arraigned as 3rd Defendant in the suit is invalid and not binding on the Plaintiff and (iii) for permanent injunction. The averments in the plaint are to the effect that the parties except the Petitioner constituted a joint family until 25/4/1976 whence there was a separation of the joint family status as recorded in a partition mahazar wherein the Plaintiff - 1st Respondent was allotted 6 acres in Sy. No. 27/16 although on that date the Tahsildar had not issued the Saguvali chit. In addition, it is stated that the Plaintiff developed the land and after the Tahsildar issued the Saguvali chit, the original of the same was handed over the Plaintiff by the 1st Defendant pursuant to which the mutation entries in the revenue records were transferred to the name of the Plaintiff on 24.02.1999. In addition, it is stated that out of 6 acres of land, 3 acres were conveyed under a sale deed for valuable consideration in favour of one Bharat in order to perform the marriage of the Plaintiffs daughter while Plaintiff is cultivating the remaining extent of land.

The suit was resisted by filing written statement of the Petitioner - 3rd Defendant. I.A. No. 2 under Order 39 Rules 1 and 2 for temporary injunction against the Petitioner - 3rd Defendant was opposed by filing Statement of objections. The Trial Court considered the pleadings of the parties and the material on record, more appropriately the revenue records in the name of the Plaintiff and possession of the original Saguvali chit dated 17.01.1979, though the grant was in the name of the 1st Defendant - 2nd Respondent herein, and the Possession Certificate dated 18.07.2008, issued by the Secretary, Grama Panchayath, the tax paid receipts for the years 1982 through to 2008 in respect of the residential premises including cattle shed and open well in the schedule property, as well as the affidavits of two persons supporting the case of the Plaintiff in addition to the copy of the objections filed by the Plaintiff addressed to the Tahsildar, Somwarpet in respect of the mutation entry in the name of the Petitioner - 3rd Defendant. The Trial Court recorded a finding that the Plaintiff made out a prima facie case for gram of injunction and that the balance of convenience was in favour of the Plaintiff and greater hardship would be caused by refusing an interim order and accordingly, by the order dated 2.12.2008, allowed I.A. No. 2 and restrained the Petitioner - 3rd Defendant from interfering with the Plaintiffs peaceful possession and enjoyment of the suit schedule property. The Lower Appellate Court too, having regard to the material on record, concurred with the findings of the Trial Court and accordingly, dismissed the appeal.

The contention of the learned Counsel for the Petitioner that Paragraph 6 of the plaint averments discloses a prior partition in the year 1976 as between the members of the joint family consisting of the Plaintiff and the 1st Defendant, establishing the fact of the severance of the joint family status, the Grant Certificate issued to the 1st Defendant after partition, is prima facie indicative of the fact that the property belonged exclusively to the 1st Defendant, vendor of the Petitioner. This submission is unacceptable in the light of the fact that a reading of the entire Paragraph 6 of the plaint averments discloses that in the partition on 25.4.1976 between members of the joint family, the extent of 6 acres of land in the survey number in dispute was allotted to the share of the Plaintiff though on that date the Tahsildar had not issued the Grant certificate and did so only thereafter, the original of which was in the custody of the Plaintiff. The other documents in the possession of the Plaintiff issued by the Village Secretary for having paid taxes in respect of residential building, cattle shed, etc., in the suit schedule property, the Courts below observed, was a prima facie case made out by the Plaintiff. In my considered opinion, no exception can be taken to the reasons, findings and conclusions arrived at by the Courts below, concurrently, calling for interference in exercise of jurisdiction under Article 227 of the Constitution of India. Petition devoid of merit, is accordingly rejected.