Uma Bai and Others vs Lakshmidevi

B.S. Patil, J.—Defendants 1 & 2 in O.S. No. 322/2014 have filed this Miscellaneous First Appeal challenging the order dated 08.07.2014 passed by the Court partly allowing the application filed by the plaintiff/respondent herein under Order XXXIX Rules 1 & 2 CPC. The Court below has restrained defendant No. 1 from dismantling/demolishing the residential house and cattle shed situated over a portion of the suit schedule property till the disposal of the suit. The Court below has further made it clear that plaintiff shall not take advantage of the temporary injunction granted to claim possession over remaining portion of the suit schedule property except the area on which residential house and cattle shed were situated.

Suit has been filed seeking relief of declaration that plaintiff has become the owner of the property by way of adverse possession. She has also sought for permanent injunction to restrain the defendants from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule property. Plaintiff has based her right over the property by contending that one Hanumanthaiah was the propositus of the family of the plaintiff. He had two wives. First wife died issueless. Second wife had four children. There was a partition between the members of the family of Hanumanthaiah during the year 2000 and in the said partition, suit property was allotted to the share of the plaintiff.

Plaintiff has contended that Hanumanthaiah died in the year 2011 and after his death, plaintiff has been in continuous possession of the suit property along with her husband and children in the residential house constructed in the suit schedule property. Plaintiff has also contended that her family had entered into possession of the property way back in the year 1997 and since then, they have enjoyed the property by installing a borewelll in the suit land and had been growing different crops therein.

Plaintiff has also contended that her family had grown certain trees and had developed the land over the years. She has urged that her family had perfected title by adverse possession as they have been in possession of the property for more than 12 years without any interruption from the defendants. Immediate cause for her to approach the Court was the action of the defendants in illegally trying to dispossess the plaintiff from the suit property by making attempt to demolish and dismantle the existing structure. Along with the plaint, she filed an application seeking temporary injunction to restrain the defendants from dismantling/demolishing the existing structure or dispossessing her from the suit schedule property.

Defendants resisted the suit and the application contending inter alia that the suit itself was not maintainable and that the plaintiff was inducted in the property as a servant in order to look after the agricultural activities and therefore, she cannot seek any relief muchless relief of temporary injunction to restrain the lawful owners from enjoying the property.

The Court below, having considered the respective pleadings, has come to the conclusion that materials placed on record disclosed that plaintiff was in possession of residential house and the cattle shed. The nature of the right claimed by the plaintiff over the suit property being the subject matter of the main dispute, the court has found that it had to be decided at the time of final disposal. As prima facie case had been made out, the Court below has opined that possession of the plaintiff was required to be protected till the disposal of the suit only insofar as the existing structure including the cattle shed. Accordingly, temporary injunction to the said limited extent has been granted.

Learned counsel for the appellant/defendants has strongly contended that suit itself is not maintainable for the relief of declaration of title acquired by adverse possession as has been declared by the Apex Court in this regard and that defendants admittedly being the original owners of the property cannot be restrained at the instance of their own servant from enjoying the property. He has placed reliance on the judgment in the case of Raghavendra Rao Vs. Dodda Ramalingappa, .

Learned counsel for the respondent/plaintiff has supported the order under challenge.

Having heard the learned counsel for both parties and on careful perusal of the pleadings and the order under challenge, I find that question whether plaintiff has been in possession of the property as a servant of the defendants or she has any other independent right as asserted by her in the plaint is a matter of trial. Plaint averments do not disclose that plaintiff has been in occupation of the premises as a servant of the defendants. On the other hand, she has claimed her right through her ancestor Hanumanthaiah as per the oral partition that had allegedly taken place in their family. She has also come up with a contention that her family has been in possession for more than 17 years and have perfected title by adverse possession. Having regard to such plea, whether the plaintiff is entitled for such a relief also is a matter of trial. At this stage, what all the Court below has done is to protect the existing structure over the property by directing the defendants not to demolish/dismantle the same till the disposal of the suit. In respect of other agricultural land, the Court below has taken care to make it clear that plaintiff cannot take advantage of the temporary injunction to assert her claim of possession over the same.

As rightly contended by the counsel for the appellants, because of the interim order now granted, the entire developmental activity of the appellants/defendants over the suit property has been stalled. If this situation continues, it will certainly prejudice the rights of the appellant/defendants. Therefore, in my view, this is a fit case, wherein while maintaining the impugned order passed by the Court below, the Court below has to be directed to expeditiously dispose of the suit without giving room to the parties to unnecessarily protract the litigation.

Hence, this appeal is disposed of directing the Court below to dispose of the suit by the end of April, 2016. Plaintiff, who has obtained the order of temporary injunction, is directed to co-operate with the Court below in expeditious disposal of the suit.