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2023 Supreme(Online)(Kar) 32511
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF JUNE, 2023 BEFORE THE HON'BLE MR JUSTICE RAVI V HOSMANI WRIT PETITION NO. 6129 OF 2017 (GM-CPC)
C/W WRIT PETITION NO. 57974 OF 2016 (GM-CPC)
IN W.P.NO.6129/2017:
BETWEEN:
MRS S.A. CHANDRAKALA, W/O SRI A.A. ARUNKUMAR, AGED ABOUT 58 YEARS, R/OF MAHADEVPET MADIKERI - 571201, KODAGU DISTRICT.
…PETITIONER [BY SRI. Y.R.SADASIVA REDDY, SR. COUNSEL A/W SMT. SUNANDA SARKAR, ADVOCATE FOR SRI. RAHUL S REDDY, ADVOCATE (PH)]
IN W.P.NO.57974/2016:
BETWEEN:
1. SRI. MUTHAPPA TEMPLE RENOVATION COMMITTEE, Digitally signed by SRI. MUTHAPPA TEMPLE ROAD, GEETHAKUMARI MADIKERI CITY - 571 201, PARLATTAYA S REP. BY ITS PRESIDENT Location: High Court MR. T.K. SUDHEER.
of Karnataka
2. SRI. MUTHAPPA TEMPLE MANAGING COMMITTEE, SRI. MUTHAPPA TEMPLE ROAD, MADIKERI CITY - 571 201.
REP. BY ITS GENERAL SECRETARY MR. T.K.SUDHEER.
…PETITIONERS [BY SRI. Y.R.SADASIVA REDDY, SR. COUNSEL A/W SMT. SUNANDA SARKAR, ADVOCATE FOR SRI. RAHUL S REDDY, ADVOCATE (PH)]
AND:
1. MR. B.M. BHUJANGA, SINCE DEAD BY HIS LRs, 1(a) MALLESH, S/O LATE B.M.BHUJANGA, AGED ABOUT MAJOR, 1(b) LATHA, D/O LATE B.M. BHUJANGA, AGED ABOUT MAJOR, 1(c) SUDHA, D/O LATE B.M. BHUJANGA, AGED ABOUT MAJOR, LATE UMESH, SINCE DEAD BY HIS LRs, 1(d) SMT. VIJAYALAKSHMI, W/O LATE UMESH, AGED ABOUT MAJOR, 1(e) MANISH BARNA, S/O LATE UMESH, AGED ABOUT MINOR, 1(f) MAYUR BARNA, S/O LATE UMESH, AGED ABOUT MINOR, REP. BY HIS NATURAL GUARDIAN, SMT. VIJAYALAKSHMI, W/O LATE UMESH, AGED ABOUT MAJOR, RESPONDENT NOS.1(a) TO (f) ARE R/A NO.1/45, BLOCK NO.1, MAHADEVPET, MADIKERI - 571 201.
2. MRS. LAKSHMAMMA, RESPONDENTS NO.3 TO 8 W/O LATE B.M. SHESHAPPA, ARE ALREADY ON RECORD AGED ABOUT 85 YEARS, AS LRs OF R2 VIDE ORDER C/O SRI NAGESH BARNA, DATED 18.11.2022 NO 40, EAGLE NEST, 3RD MAIN ROAD, L.N. REDDY COLONY, RAMASWAMY PALYA, BANGALORE - 560 037.
3. MRS. GEETHA KRISHAN, W/O C.A. KRISHNA, AGED ABOUT 63 YEARS, R/A NO.204, ADITHI APARTMENTS, NO 34, 3RD FLOOR, 3RD MAIN ROAD, BHOOPASAMUDRA, RMV 2ND STAGE, BANGALORE - 560 094.
4. MR. LOKESH BARNA, S/O B.M. SHESHAPPA, AGED ABOUT 61 YEARS, C/O MR NAGESH BARNA, NO 40, EAGLE NEST, 3RD MAIN ROAD, L.N. REDDY COLONY, RAMASWAMY PALYA, BANGALORE - 560 037.
5. MR. SATHISH BARNA, S/O LATE B.M. SHESHAPPA, AGED ABOUT 59 YEARS, C/O MR NAGESH BARNA NO 40, EAGLE NEST, 3RD MAIN ROAD, L.N. REDDY COLONY, RAMASWAMY PALYA, BANGALORE - 560 037. 6. MRS. UMA DEVI, W/O MR. HEMU DOSHI, AGED ABOUT 57 YEARS, NO 15, SHANKARMAHAL, DADA BAI ROAD, VILLE PARLE, WEST MUMBAI - 400 056.
7. MRS. NAGARATHNA SUDHEER, W/O LATE SUDHEER BANAPPA, AGED ABOUT 53 YEARS, C/O MR NAGESH BARNA, NO 40, EAGLE NEST, 3RD MAIN ROAD, L.N. REDDY COLONY, RAMASWAMY PALYA, BANGALORE - 560 037.
8. MR. NAGESH BARNA, S/O LATE B.M. SHESHAPPA, AGED ABOUT 51 YEARS, NO 40, EAGLE NEST, 3RD MAIN ROAD, L.N. REDDY COLONY, RAMASWAMY PALYA, BANGALORE - 560 037.
9. MR. SHIVADATHA SUBBAIAH BARNA, S/O LATE M CHIKKA SUBBAIAH BARNA, AGED ABOUT 41 YEARS, NO 29, 19TH 'A' CROSS, NEW NO.10TH CROSS, BHUVANESHWARI NAGAR, HEBBALA, KEMPAPURA, BANGALORE - 560 024.
10. MR. B.N. HARISH, S/O B.M. NAGAPPA, AGED ABOUT 61 YEARS, NO 18, 10TH 'A' MAIN , 1ST STAGE, BRUNDAVAN EXTENSION, MYSORE - 20.
11. MR B.N. GOPINATH, S/O LATE B.M. NAGAPPA, AGED ABOUT 53 YEARS, 410, KAPILA NATIONAL GAMES VILLAGE, KORAMANGALA, BANGALORE - 560 047.
12. MRS. PADMA V. SATHISH, W/O B. SATHISH KUMAR, AGED ABOUT 51 YEARS, FLAT NO 102, GEETHANJALI CLASSIC, RAHATH BAGH, C.V. RAMAN NAGAR, BANGALORE - 560 093.
13. MR. B.M. MADHUSUDHAN, S/O LATE B.M. NAGAPPA, AGED ABOUT 50 YEARS, R/IN BRAHMIN VALLEY, MADIKERI - 571 201.
14. MR B.N. ASHOK, S/O LATE B.M. NAGAPPA, AGED ABOUT 60 YEARS, R/AT NO.433, 'A' SECTOR 8, UKKUNAGARAM, VISHAKAPATNAM 530 032.
…RESPONDENTS (COMMON)
[BY SRI. S. RAJASHEKAR, ADVOCATE FOR R1 (a TO f) TO R14 (PH);
R3 TO R8 ARE LRs OF DECEASED R2]
THIS WP NO.6129/2017 IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 27.7.2016 VIDE ANNEX-H PASSED BY THE COURT OF SENIOR CIVIL JUDGE, MADIKERI ON I.A.NO.14 IN O.S.NO.83/2011 AND ETC., THIS WRIT PETITION NO.57974/2016 IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 24.9.2016 VIDE ANNEX-G PASSED BY THE COURT OF SENIOR CIVIL JUDGE, MADIKERI IN O.S.NO.11/2012 AND ETC., THESE PETITIONS, COMING ON FOR FURTHER HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Challenging order dated 27.07.2016 passed by Senior Civil Judge, Madikeri on I.A.no.14 in O.S.no.83/2011 at (Annexure-H), W.P.no.6129/2016 is filed. While W.P.no.57974/2016 is filed challenging order dated 24.09.2016 passed by Senior Civil Judge, Madikeri, on I.A.no.24, in O.S.no.11/2012 at (Annexure-G).
2. Since both suits are between same parties, based on similar pleadings and in which similar applications were filed, disposed of by trial Court on similar reasons, above writ petitions were clubbed. And to avoid repetition of facts, only facts of W.P.no.6129/2017 would be stated and referred to.
3. Sri Y.R.Sadasiva Reddy, learned Senior Counsel appearing for Smt.Sunanda Sarkar, learned counsel for Sri Rahul S. Reddy, learned counsel for petitioner submitted that writ petition was by defendant in O.S.no.83/2011 filed for decree of possession of property measuring 30 cents out of total 259 cents in Sy.no.3 and 3/1 situated at Block no.25 of Madikeri, CMC, bounded on East by remaining portion of Sy.no.3 and 3/1, West by convent road, North by remaining portion of Sy.nos.3 and 3/1 and South by remaining portion of Sy.nos.3 and 3/1 (hereinafter referred to as 'suit property').
4. In plaint, it was stated that extent of 1.58 acres and
1.04 acres respectively in Sy.nos.3 and 3/1 situated at Block no.25 of CMC, Madikeri, belonged to late Barana Veerabhadra Shetty. Said Barana Veerabhadra Shetty had purchased said property from Hussain Khan Saheb of Yelepet, Madikeri, under registered sale deed dated 03.12.1942. Thereafter Barana Veerabhadra Shetty bequeathed property purchased to his younger brother Barana Mallappa Shetty; plaintiff no.1 (who was 4th son of Barana Mallappa Shetty) and remaining plaintiffs (who were legal heirs of other sons) under WILL. Prior to bequeathal, Barana Veerabhadra Shetty had given 03 cents of land out of property purchased by him for construction of Sri Muthappa temple under registered Gift Deed dated 29.05.1948, and retained possession of remaining until his death, indicated by municipal records standing in name of plaintiffs.
5. It was further stated that defendant, who was no way connected to Sy.no.354/7, on basis of bogus entries and clandestine mutation in municipal records, forcibly and illegally encroached upon portion of plaintiffs' property. On enquiry, it was found that defendant had obtained building licence to construct commercial building and questioning building licence, plaintiffs had filed appeal before Deputy Commissioner and obtained ad-interim order of stay by alleging that defendant was in illegal possession. And thereafter suit was filed.
6. It was submitted that defendant filed written statement denying plaint averments and also denying sale deed dated 03.12.1942. It was stated that without survey, Block no.25, of which entire portion of Sy.no.354 was part of, was included within area of Madikeri Municipality. It was contended that mention of Sy.nos.3 and 3/1 in Municipal records as part of Block no.25 was illegal, as said lands were not in existence and that suit was filed in respect of non-existent property. It was also stated that A.S. Madappa was absolute owner of Sy.no.354/7 situated in Block no.25 of City Municipal Council, Madikeri and had validly bequeathed it to his sons. Thereafter, they got it converted for non-agricultural purposes and sold it to defendant under registered sale deed dated 11.07.1994. Subsequently, name of purchaser was also mutated in municipal records.
7. Thereafter under registered Exchange Deed dated
13.12.2000, defendant became owner in possession of 34 cents in Sy.no.354/7, and had obtained building permission from City Municipal Council, Madikeri and constructed building over suit property. As such, defendant denied plaintiff’s title and possession over suit property. It was contended that suit was barred by limitation. It was submitted that on basis of said pleadings, issues were framed and parties went to trial.
8. After completion of recording of
