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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 4'1"" DAY OF NOVEMBER 2010
BEFORE
THE HON'BLE MR.JUS'E'ICE A.S.PACH}iAPURE "
WRIT PETITION NO.121O3/2O10[GM:Cif:5C.1. A A
BETWEEN
Sri. Verikata Swarny,
Sri. G. Marijunath,
S/ 0. Late Murii Swamy,
Aged 45 years,
R/at No.39/1, 4"] Main,
5"' Cross, SR. Nagar,
Bar1ga10re--56O 027.
[By Sri. av. Badriimh, Adm ~ if A
AND
Sri. Sadhasiv_aReddyA,V H
S/ 0. Late Krishenappa-,__
Aged about_ 52 ye-ars; '
" AR/at 'Village, . ..... .0 .
Begur""H0b1i, S'
' .VBai1ga10rei_VS0u:h"Taluk,
Biangalioie, A 2
. RESPONDENT/ S
[By L_..~Veri'katarama Reddy, M / s. Kumar & Kumar &
C.E-1 Prasanna Kumar, Aclvs}
***$*
" _ A " «This Writ Petition is filed under Articles 226 and 227 of
'wtheicoristitutiori of India praying to set aside or quash the
~.Q1'd_er dated 17.07.2009 passed in O.S.N0.483/2009, on the file
"gof Civil Judge {Jr. I)r1.}, at Bangalore, on I.A.N0.I filed under
-« ~ Order 39 Rules 1 and 2 and the order passed at Am1exure-P
2 WP 12103/10
and in M.A.No. 55/ 2009, on the file of the Presiding Officer,
Fast Track Court--III, Bangalore Rural District, dated
9.04.2010, Annexure--Q.
This Writ Petition having been heard and reserved,
coming on for pronouncement of orders, this day,
made the following: * 0' 0' 0
ORDER
The petitioner has challenged
Temporary injunction against hum con.fii*1*::1ed the “appea1,0e’
before the Fast Track Court, Bangalore
2. The facts relevantfor the pf thisepetition are
as under:
Ewillrefer_Vthe:’}Vparties’ as 1:§e14″‘the1r rank before the Trial
Court for the purpose conifeniience.
‘I’1An__eV petiticnertherein 0. the defendant in the suit bearing
“‘ea,s.N’ee;2te3.e,/2009 filed’ “” ey the respondent herein seeking the
relief injunction to restrain the petitioner from
0 causing obstrtietilon to the peaceful possession and enjoyment
ofppthe suitproperty bearing S.No.38/2 measuring 2 acres 20
Kodathi Village, Varthur Hobli, Bangalore South
it is the case of the plaintiff that he purchased the suit
elproperty under a registered sale deed dated 30.6.1989
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registered as document 1\§o.3493/1989-90 in the office of the
Sub–Registr3.r Bangalore on 3.7.1989. The copy of the'””:-sale
deed has been produced at Annexure–L. It is on the V.
this sale deed that the plaintiff made a request to”‘«t.he.
authorities to enter his name in the records. In pu_rsu_ar1C’e7 of’;
the request made, the Tahsildar passed an order fa:rot;r*oif
the plaintiff and the defendant ‘preferrehd ean–.eap_pe’al'””tolithe 98
Assistant Commissioner in,–RA (BE)–‘*l’10_;4?i’*/y09– ‘avnd.-the entry
has been stayed. The matter pending before the
Assistant Commissioiier for’Vconsideration.VV- ~ 2 if 8
3. As Couldgbeiiiseeia fr_om the rfecordllof rights since from
the year ofllplurchaself’theasuit property by the plaintiff, his
name appearsaboth and also the Cultivators
column all along. ‘
8′ – pvetitionertflaims that he is the great grand son of
that she had purchased this property under
a reg:eieredy’e?eVie’ deed dated 26.6.1961 and she died on
vbV.g_.42’9h.3.l985hmuch earlier to the sale deed said to have been
by her in favour of the plaintiff. It is also his case that
____”the alleged sale deed executed on 80.06.1989 is void abinitio
_ that the plaintiff by impersonation of Madduramma has
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got created a false and fictitious document and that it does not
bind the interest of the defendant in the suit property. Soalso,
it is his case that Madduramrna his great grand’ V.
bequeathed the suit property in favour of Laksh¥;ifi;:an’1jina’
wife of her son Muniswamy by registered”W.ill
After the death of Madduramma, .
possession of the suit property andjtasshehldied’ as
the only heir. he has succeeded the deceased.
Therefore, he claims that he of the suit land.
As there was an he instituted
the suit in O.S:_. plaint has been
produced at that the plaintiff sought
for a declaration owner of the suit land
and also an ‘injunctionl’ restraining the defendant in the said
suit. toppgjineaon the” plaintiff in O.S.No.483/2009 from causing
his peaceful possession and enjoyment of
the sui t v V i”
5′: In’ suit filed by the respondent herein, an
,. fa-pgplication’r\yas filed seeking the relief of temporary injunction
“u.£:a¢r-me provisions of Order 39 Rule 1 and 2 CPC. The Trial
‘:’CVo1.1rt after hearing the parties and after the objections were
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filed by the petitioner herein granted an interim order of
injunction and aggrieved by the same, the petitgoner
approached the Appellate Court in 1\/iise.A.No.55/2009 azndthe
said appeal aiso came to be dismissed on merits r.vide..o1*d.-er
dated 9.4.2010. Aggrieved by the concurrent” _p it
regard to the grant of temporary injtinctiom the-:
petition has been filed.
6. I have heard the learnedleounsell fortthe petitioner
and also the respondent
7. it is rele1rarit_ to petitioner has
instituted the ,V/eoos, he has not
obtained injunction. Furthermore, the
copy of the Llsale site have been executed by
_Maddurarn:na the plaintiff has been produced at
there is a reference of the name of
executor of the sale deed and there is also
l a reference’ she purchased this property on 26.6.1961
it tinderp a registered sale deed and _ her name appeared in the
rights and she has also made a reference that she
executed a Will on 5.4.1978 and the said Will was registered in
the office of the Sub–registrar. She states that she has
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cancelled the said Will and as she is the absolute owner of the
suit property in question, sold the same for a Valuable
consideration of Rs.72,500/- to the plaintiff in the suit;-.___It is
further pertinent to note that the daughter of Maddurarri:i_i:a:by
name Muniyamma is also an attesting .
registered sale deed. So in the circunistarices, lielow if it
took into consideration this sale deed'”exec_’uted in favlourthei
plaintiff and held that it is thel.p’iaintiff””.Vho
facie in possession of the suit property ‘ail alongtill date of
the sale transaction and gra_rit.ed.the iun4teriIn’o.rder.
8. it is §.v~{]::e..Vp:Vi:ontentio;Vn’ of ..Vdei’endant, (petitioner
herein) tghatlas” in the year 1985, the
_ €E,X§;’£.%.§’£€f§g3* *3 h , _
question of the-~._sal.e~”deed in favour of the plaintiff
‘s
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does not arise” all}. has produced the Xerox copy of the
“deatii…cei:tiificate of llviadduramma at Anr1exure–(} wherein the
“:_1_anie”of ti1_elde’ceased has been shown as Madduramrria, wife of
Sarnloappa.. date of death is shown as 29-03-1985. Now. as
‘could belseen from the sale deed that has been executed by
ffiiadduramma in favour of the plaintiff and also the
.___'”fcolntention of the plaintiff, the husband’s name of
if Madduramma was Sambappa and that the death extract has
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been got created by the defendant with an intention to grab the
‘aw ea: V
suit property. So there are segeg fiuestion of facts in dispute
between the parties and as both the Courts beiow hav_e.__heid
that the plaintiff is in prima facie possession of
property, I do not think that in the writ jurisdiction ‘
couid be reappreciated. There are concurrent.’findingsffofflboth if
the Courts beiow granting temporary injunfctionfffin ‘.1′-«’3′..:\’f(;c1′,1VVI’::V’i’3f..£1;ifF3:
plaintiff and though the petiti’en’e:..pherein: thee’
suit, has not obtained any orde1’p_.Qf’in}unct1o.n’* taiking into
Consideration that there is”s.eri.ou{s’ qu”esti.o’n._to be tried by the
Court below, the grant of”i11t.erir1;._or_derv_ cannot be interfered
with in this petition. efffftheinatter, I am of the
opinion :”;that* * devoid of merits and it is
aecordingiy”dismissed? . hf
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