WP E\io.6S882 of 2009
IN THE HIGH COURT or KARNATAKA
CIRCUIT BENCH AT EHARWAD 5 'f H
DATED TI-HS THE 4TH DAY OF NOVEMBER':
BEFORE«w-4 a"x°Va% a'a
THE HON'BLE DRJUSTICE I§A§'Bt§iHi{THA,fIATSAi;AAv'V"V -
WRET PETITEON No.65Mé§af;/_:2Vo09' '{C1'::IA\/'I'--':C3PV(f7$}
BETWEEN:
Sri Shivaji, _ H » _ -
S/0 Kallappa;"Bej;:na1l{ar,iL
Aged about*6C..yeaIfs," H
R/at Kangi'a1i--::K}H,,"' ' A_
Tq and,Dist Beigat:gm.'-_ ...PETITIONER
(By Sritgv-._M'ri1ty1;1f1}ay:Tafafiahfigi, Advocate)
ANl7)':_
»1:."S1ji Ka11app'a.,_
3 0 Patil,
H " Aged a'o"."c;--:.1t'a:=70 years,
2. sh ubafia;
AA /0 Yaliappa Benalkar,
V aged about 65 years,
' 3}; Smt. Laxmi Daulat Benalkar,
aged about 55 years,
WP No.6S882 of 2009
4. Sri Baliram,
S / o Yallappa Benalkar,
Aged about 45 years,
5. Sri 1\/Iahadev,
S / o Yallappa Benalkar,
Aged about 44 years,
6. Smt. Yarnu Krishna Jeknekar,
* aged about 49 years,
7. Smt. Malu Bhaurao Chopade,
aged about 50 years, '
8. Smt. Chandrabhaga Suresphi:-..,__
Chandekar, A
Aged about 50 years",
9. Sri p
s /o,Ya11apip'a Beria1i§a.r_,
Agedsabout 49':'years','«,.,,_ ' '
All r/ati'i{a11gra}.ii4Kihui3Ci,
Tq. and Disiiseigaum. ...RESPONDENTS
ii'{BySri.3*Srir1and.Aii5aehhapure, Adv., for C/R1)
A This ii%i~ii petition is filed under Articles 226 85 227
auof the ~.Co;_nstitution of India praying to quash the order
_passed’**”by the III Additional Civil Judge (Jr. Dn.)
‘=_Be1ga_um passed in O.S.No.488 of 2009 dated
__ 2.4]iO.2009 on i.A.No.VII, copy as per AnneXure«~W and
H digisrniss the application filed by the let respondent.
WP No.65882 of 2009
This writ petition coming on for preliminary
hearing this day, the Court made the following: H
The petitioner, who
O.S.No.488/2009 on the fi1e..___of
Judge (Jr. Dn.), Belgaum, under
Articles 226 85 227 of praying for
quashing the ‘.V.ogrde1~:,~– passed on
I.A.No.VII inrmue ‘:.:~:aid._s11\it i;at’AnnVexure–W.
2.i*i1ees theicasie leading to filing of the
writ petition may’i3e~state’d.as under:
petitio.nve_r___clairr1s that he is the tenant in
res*peVct._’uof ___1and bearing Sy.No.112 of Kangrali KI’-I
iziiliage of District, measuring 4 acres 6 guntas.
jVOn he filed Form No.7 before the Land
“..jjTr1biuna1i Belgaum, for grant of occupancy rights. During
Hpendency of the proceedings before the Land
WP No.65882 of 2009
Tribunal, the petitioner was provided with _,.__police
protection in respect of the land by ord’er-Viifldated
03.12.1981 by the Special Tahsildar,
Annexure–A). It is stated that:-ir”esp.onden_tii
herein are the legal representatiyes
had contended that she oyirrier
land and -she was i”n.__possessio:i”~ot” thei”saine. After
enquiry, the Land Tribun-al_ byirs Q~rd’eif’~cl_a;ted 10.10.2002
‘granted occu;pa,r1§’.y in of the petitioner
herein as No. 1 / plaintiff filed
a suit against the respondent Nos.2
to 9 and the for permanent injunction
and other reliefspln thatisuit, initially, ad–interim order of
l”ir1_]’u11ctio1ii’i’was granted in favour of the respondent
subsequently, it was vacated. On the
other h.a’nd.,:”‘tempora1y injunction was granted in favour
Jof the present petitioner/ defendant No.9 and also granted
a.’_ipoi1ice: protection by order dated 28.08.2009. Respondent
it 11,1″”No.1/plaintiff had filed an application (I.A.No.6) for
WP No.65882 of 2009
ascertaining who was really in possession of the disputed
land. I.A.No.6 filed by respondent No.1/pla%ritii”ffi.V:ia.ras
rejected. Therefore, respondent No.1
W.P.Nos.65169–65170/2009 criaiidengidg T’ V’
passed on I.A.No.5 granting
petitioner herein and rejectio:ri’:”‘of Id’-l.NoV.6..V writ’
petitions were rejecltedp
Thereafter, respondent — LA. No. 7 under
Section 151 of to recall the
order l.A.No.5 giving police
protection petitioner/ defendant
No.9. “annexed with the affidavit of
respondent’l4Nol.’Al/plaintiitif. The application was opposed.
Cenrt foflrmthe reasons stated in the impugned
o’ord.e’rgialVlovv’eVd’V~.l–t’A.No.7 and the order dated 28.08.2009
it it ” 1 4.” ‘ —- Jth.is writ” petition.
giving p.__o1’iee’ protection was recalled. This is impugned in
WP N0.65882 of 2009
3. Learned counsel for the petitioner submits
though the order made on l.A.No.5 granting police
protection in favour of the petitioner / defendant’Vlu\liohi4:lf:3r.§Aras
confirmed by this Court in
the respondent No.1 / plaintiff; Mfiled
(I.A.No.7 filed under Section is:
Procedure) to recall the
on I.A.No.5 and the A__’.I’rial allowing
I.A.No.7 and 28.08.2009.
Learned counsel .__for thé”p:g§titio.n.er isuzbinits that there is
collusiolnifilbeigweeiiiresn_ondelnt’iNos.1 to 9 herein. He
furtherbsubznits’tjhatktemporary injunction granted in
favour of gnetitionerliilagainst respondent No.1 is still in
ibforcs’ i..,;;ndA..g_the iilrelspondent No.1 is harassing and
Cili’S’fE1_;n1’1’L}:i:I1g: the” peaceful possession by the petitioner.
Th’erefo’re,~,i’«he submits that the impugned order may be
3 if ‘ = set aside.
l
WP N0.65882 of 2009
side and respondent Nos.2 to 9 on the other. Merely
because respondent Nos.2 to 9 in this Writ petition say
that it is respondent No.1 alone is in possessioni»:.:o’f._Vthe
suit landicannot be accepted as gospel
upon when ih”e'”‘Land Tribunal
by order dated 10.10.2002 gradtedorpteieiedpeieeylt1getpeeLi:§
favour of the petitioner herci_n;– to
0 lost their legal battle-‘of clairni1ig’occupa11cy right to the
disputed property, theyliirespondent No.1
and that is the_reasonitheyiihavebeengrziiade as parties to
the Court has granted
temporary in favour of the
petitioner/de£en’dant’- and against respondent
.i”‘No.i’3;plainti.ff andiiiiiithe same is in force. Under such
‘ -the petitioner is entitled to seek for police
prot«ecti._jo’n~,and the same was allowed. Taking advantage
,1.:hei”–‘unwanted observation made by order dated
‘1_l.’O95i.20O9 in W.P.Nos.65l69/2009, respondent No.1 is
T “trying to say that the petitioner/ defendant No.9 is trying
L
WP N0.65882 of 2009
to dispossess the respondent No.1 from the disputed
land. The petitioner has not filed an application under
Order XXXIX Rule 2A of the Code of Civil to
initiate action against the respondent
disobedience of order of injunction’ be’cau’se’_w:
protection was given and there was no such occasioen, if
6. I have perused thie’«-..gpplli’c.ation
under Section 151 of the “il3?rocHei:1ure. The
averments made in ‘E0 I-1′-\«N0.7
indicates that the peaceful
possession’ of the suit land. The Trial
Court v.ha\re4i’Ainitiated action against respondent
NoV_.~1i[p1aintiffifor…_d.isvobedience of injunction granted in
‘faV’o.ur'<_,of -petitioner. On the other hand, the Trial
Court erred' in recalling the police protection given by
lg_order~~da;teid 28.08.2009 which order was confirmed by
Court in W.P.Nos.65l69/2009. Under such
l
WP N0.6S882 of 2009
:10:
circumstances, the Trial Court erred in passing the
impugned order.
7. In the result, writ Petition is 9»
impugned order dated 24.10.2009
Annexure«~W is quashed and-t__he d1*de1′
passed on LA-.5 is restored.
Kms*