N. Shanmukha Swamy vs K.S. Prasad and Others

Budihal R.B., J.—1. Heard the arguments of the learned counsel appearing for the petitioner / plaintiff and the respondents 1 to 4 / defendants. So far as respondent No. 5 is concerned, the learned counsel for the petitioner filed the memo today submitting that notice to respondent No. 5 may be dispensed with as he is not an interested party to the present petition is concerned. Said memo is placed on record. In view of the memo and at the risk of petitioner, notice to respondent No. 5 is dispensed with.

This writ petition is filed requesting the Court to set aside the order dated 19.12.2015 passed by III Addl. District & Sessions Judge, Mandya on I.A. No. 2 in R.A. No. 5030/2015 produced as per Annexure-F.

The learned counsel appearing for the petitioner during the course of the arguments made the submission that petitioner filed the suit before the trial Court for the relief of declaration and permanent injunction in respect of the suit schedule properties. The learned counsel also made the submission that the petitioner also filed application I.A. No. 1 before trial Court requesting the Court to pass the temporary injunction order against the respondents/defendants from passing any sort of obstruction to the plaintiff''s peaceful possession and enjoyment over the suit schedule properties. The trial Court allowed the said application after considering the objection statement filed by the respondents. Being aggrieved by the said order passed by the trial Court, respondents preferred appeal in M.A. No. 2/2013. The said appeal was heard and disposed of by the appellate Court after giving opportunity to both the sides and in the said miscellaneous appeal the appellate Court allowed the miscellaneous appeal, set aside the order passed by the trial Court on the application I.A. No. 1. Subsequently, the main suit itself came to be disposed of by the trial Court and learned counsel submitted that the suit has been decreed by the trial Court in favour of the plaintiff / petitioner herein declaring the plaintiff as the owner of the suit schedule properties and also granted the permanent injunction restraining the defendant Nos. 1 to 6 from interfering with the plaintiff''s peaceful possession and enjoyment over the suit schedule properties.

The learned counsel submitted that as against the judgment and decree passed by the trial Court the respondents preferred regular appeal before the Court i.e., III Addl. District and Sessions Judge, Mandya, sitting at Srirangapatna in R.A. No. 5030/2015. The learned counsel made the submission in the said appeal that the appellants preferred application I.A. No. 2 seeking police protection to implement the order passed in favour of the appellants that they are in possession of the suit schedule properties. The petitioner was given an opportunity to oppose the said application. Accordingly, the objection statement was filed by the petitioner herein. After that the appellate Court disposed of the application I.A. No. 2 allowing the same and ordered for police protection in favour of the appellants.

The learned counsel further submitted that this order passed by the appellate Court on the application I.A. No. 2 is patently illegal order. The learned counsel made the submission that to get the order under I.A. No. 2 seeking police protection, firstly the respondents have to establish the case that they are in possession and enjoyment of the suit schedule properties. The learned counsel submitted that when the suit itself is decreed in favour of plaintiff, this itself clearly goes to show that the petitioner / plaintiff was and is in possession of the suit schedule properties, therefore the question of getting the police protection to the appellants / defendants does not arise at all. The learned counsel submitted that however the trial Court while disposing of the I.A. No. 2 wrongly interpreted the documents produced in the matter and after referring to the contents of the complaint filed by the petitioner / plaintiff before the police the appellate Court wrongly interpreting that the contents of the complaint itself goes to show that the petitioner has admitted the possession of the defendant over the suit schedule properties and allowed the application I.A. No. 2 and gave the police protection in favour of the appellants / defendants.

The learned counsel made the submission that even looking to the contents of the complaint, if the entire contents are read, nowhere the petitioner herein admitted that the appellants / defendants are in possession and enjoyment of the suit schedule properties. It is only mentioned in the said complaint that when he became ill taking undue advantage of the same, the appellants / defendants came over the suit schedule properties and made the cultivation over suit schedule properties. Hence, the submission made by the learned counsel for the petitioner herein regarding such interpretation cannot be made by the appellate Court while passing the order on I.A. No. 2. Said observation made by the appellate Court is against the documents and also the judgment and decree passed in the said suit. Hence, he made the submission that the order on the application I.A. No. 2 giving police protection is not sustainable in law and same may be set aside.

Per contra, the learned counsel appearing for the respondents/defendants during the course of the arguments made the submission that though the injunction order was granted in favour of the petitioner herein by the trial Court, the appellate Court while considering the miscellaneous appeal categorically discussed about the matter and also the documents produced in the case and comes to the conclusion that it is the respondents / defendants herein who are in actual possession and enjoyment of the suit schedule properties. Holding like this the appellate Court by allowing the miscellaneous appeal set aside the order passed by the trial Court on I.A. No. 1. It is the contention of the learned counsel for the respondents/defendants that continuously the respondents / defendants are in possession and enjoyment of the suit schedule properties. The learned counsel made the submission that it is no doubt true that the suit is decreed in favour of the plaintiff but in the appellate Court R.A. No. 5030/2013 the operation and execution of the decree has been stayed by the trial Court. Hence, learned counsel made the submission that in the said appeal the application was moved by the respondents / defendants herein, even while discussing about the application I.A. No. 2 also though it was for police protection, again the trial Court discussed about the possession of the suit schedule properties and ultimately comes to the conclusion that that respondents / defendants have made out the case that they are in possession and enjoyment of the property and their possession is to be protected. Therefore, the Court directed to implement such order to give such protection. Hence, it is the contention of the learned counsel when there is already a finding that they are in possession and enjoyment and there is no material to show that subsequently have handed over the possession in favour of the plaintiff and their possession is presumed to be continued with the respondents / defendants.

The learned counsel further made the submission that inspite of such a finding given by the Courts, when again there is a threat for enjoyment and possession of the said property and though there is remedy under Order 39 Rule 2(a) for disobedience of the Courts order, that itself is not the ground to reject the prayer for seeking police protection and the Court can still give the police protection to implement its order. This is the legal position. The learned counsel in support of his contention has relied upon the following decisions:

"(i) , AIR 2014 SC 2326

(ii) ILR 1996 Kar. 1271

(iii) , AIR 1993 Kerala 62

(iv) , AIR 2015 SC 2243"

The learned counsel appearing for the respondents / defendants also draw the attention of this Court to the relevant paragraph of the said decision and ultimately made the submission that the appellate Court is justified in passing such order on I.A. No. 2. There is no illegality committed by the appellate Court, therefore the matter does not call for interference of this Court. Hence he made the submission to dismiss the petition.

I have perused the grounds urged in the writ petition, impugned order passed by the trial Court on the application I.A. No. 1 and the judgment and order passed by the appellate Court on miscellaneous appeal preferred by the respondents herein, which was allowed by the appellate Court, so also I have perused the judgment and decree passed in favour of the plaintiff / petitioner herein and the proceedings of the appeal against said judgment and decree in R.A. No. 5030/2015, so also the orders passed by the appellate Court in the said regular appeal.

Looking to the contentions urged by the both the sides, so far as the factual aspect is concerned, the application seeking injunction order was allowed in favour of the plaintiff / petitioner herein, but same was set aside in the appellate Court after elaborate discussion in the miscellaneous appeal holding that it is the respondents / defendants who are in possession and enjoyment of the suit schedule properties and not the plaintiff. Therefore, order passed by the trial Court has been set aside by the said appellate Court. I have perused the contents of the complaint. The appellate Court while passing the order on the miscellaneous appeal and also while staying the matter passing the order on I.A. No. 2 in the regular appeal also made the reference to the complaint and held that it is the plaintiff himself has admitted the possession of the respondents / defendants herein over the suit schedule properties and so also one of the grounds for the appellate Court to come to the conclusion regarding the possession of the respondents / defendants.

Perusing the contents of this complaint on page No. 2 it is mentioned by the complainant himself that when the plaintiff was not feeling well, the defendants whose names have been mentioned in the said complaint they came over the suit schedule properties bearing Sy. No. 250/1 measuring 2 acres and 14.12 guntas and without permission of the plaintiff they have made the cultivation over the said suit schedule properties and when he wanted to cultivate the said land they claim that they are in possession and said property is their property. Therefore, considering these averments made in the complaint by the plaintiff himself it is not his case that he continued in the possession of the suit schedule properties, but to the contrary it is admitted that defendants were making cultivation over the said property. This aspect has been taken into consideration by the appellate Court while recording the finding regarding possession and ultimately held that materials have been placed by the respondents / defendants to show their possession over the said property. It is no doubt true that as contended by the learned counsel for the petitioner the suit has been decreed. It is the contention of the other side that there is no prayer for possession and it is only for the declaration of title. Under these circumstances, discussion made by the appellate Court while disposing of the application and recording the finding it is necessary to issue such direction to the police to give the protection to the appellants.

Looking to the discussion made by the trial Court at paragraph 8 wherein reference has been made to the complaint and the averments made in the complaint and ultimately came to the conclusion that the possession is with the respondents/defendants herein. Looking to the principles enunciated in the decisions relied upon by the learned counsel for the respondents/ defendants it has been held as such police protection can be issued by the Courts to implement the orders of the Court, it is also the principle that no doubt there is a remedy for disobedience of the Court orders under Order 39 Rule 2(a) but only on the ground that when a case is made out, same cannot be refused by the Courts. Therefore, considering all these matters and legal position laid down in the decisions relied upon by the learned counsel for the respondents, I am of the clear opinion that there is no illegality committed by the appellate Court while disposing of the application I.A. No. 2 for giving police protection. The matter does not call for interference by this Court. Accordingly, writ petition is hereby rejected. But however, as the dispute is with regard to the possession of the property and also crops raised on the said property, in view of the submission made by the learned counsel for the petitioner that the original records of the suit have already been received by the appellate Court, the appellate Court has to take up the said appeal on priority basis and dispose of the said appeal as early as possible, but not later than six months from the date of receipt of copy of this order.

The registry is directed to send the copy of this order to the concerned appellate Court immediately.