Marian Projects Private Limited and Others vs Umanath Karkera

Budihal R.B., J.—1. These petitions are filed by the petitioner requesting the Court to quash the impugned order dated 14.10.2015 passed by the Civil Judge (Sr. Dvn.) Mangalore in Miscellaneous Appeal No. 37 and 48 of 2013 produced as at Annexure-R, also to quash the impugned order dated 25.10.2013 passed in O.S. 750/2013 and O.S. No. 749/2013 passed by the Civil Judge (Jr. Dvn.), Mangalore, produced as at Annexure-L and consequently, grant an order of temporary injunction as against the respondent herein, as prayed for in O.S. No. 749/2013, while rejecting the similar prayer in O.S. No. 750/2013, so also to direct the trial Judge to dispose of the pending civil suits in O.S. No. 750/2013 and O.S. No. 749/2013 within a particular time frame.

Heard the arguments of the learned senior counsel appearing for the petitioners and also the learned counsel appearing for the respondent.

Learned senior counsel for the petitioners during the course of his arguments has submitted that though the petitions are filed challenging the orders passed by the Trial Court as well as the appeal Court regarding grant of injunction order in favour of the respondent, who is plaintiff in O.S. No. 750/2013, and dismissing the injunction application filed by the petitioners, who are plaintiffs in O.S. No. 749/2013, and the orders have been confirmed by the First Appellate Court in Miscellaneous Appeal. Learned senior counsel has fairly submitted that so far as grant of injunction order in favour of respondent is concerned, admittedly there are concurrent findings by the Courts below, but the Courts below have not made it clear that the said injunction order is in respect of what extent of the suit schedule property. He has submitted that looking to the recent RTC extract of the suit schedule property bearing Sy. No. 58-3A3A, it measures 10 cents only, whereas the claim of the respondent herein in his suit is in respect of 41 cents. Learned senior counsel drawn the attention of this Court to the relevant RTC extract and submitted that it is a public document maintained by the revenue office, wherein the extent is only 10 cents. Therefore, he has submitted that let the injunction order be confined to 10 cents, otherwise the petitioners herein will be put to lot of hardship and injury since they cannot develop the property because of the injunction order passed by the Courts below.

Learned senior counsel for the petitioners has also submitted that then even according to the case of the respondent-plaintiff in O.S. No. 750/2013, it is not made clear before the Trial Court as well as the First Appellate Court that the land in respect of which respondent-plaintiff is claiming his 41 cents as per the records i.e., RTC extracts. In this connection, learned senior counsel drew the attention of this Court to the relevant documents and also the orders passed by the Courts below and it is his main contention that in the said judgment and orders passed by the Courts below the said aspect is completely lost sight of by the Courts below while passing the injunction orders, hence, he has submitted that to that said extent petitions are to be allowed and the order passed by the Trial Court, which is confirmed by the First Appellate Court, is to be modified by way of clarification and it is confined only to the extent of 10 cents and not more than that.

Per contra, learned counsel for the respondent, who is plaintiff in O.S. No. 750/2013 and defendant in O.S. No. 749/2013, has submitted that the contention put-forth by the other side is not correct. He has submitted that the defendant and his predecessors were in possession and enjoyment of the property measuring 1 acre 37 cents and Form No. 7A was filed claiming the occupancy rights in respect of the said survey number. However, the land tribunal rejected their claim holding that the property in question is a non-agricultural land, therefore, the occupancy rights cannot be granted in their favour. Learned counsel has submitted that they have challenged the said order and the matter is pending before the appellate Authority, wherein the status-quo order has been passed by the said authority. It is the contention that as per the document, which he has produced now, the Sy. No. 58-3A3A is measuring 1 acre 47 cents and it is of the year 1968-69. Therefore, it is contended that when the extent of the land has been shown in the records of rights as 1 acre 47 cents, the contention of the other side that it is measuring only 10 cents, cannot be accepted at this stage, and it requires recording of evidence during the course of trial of the suits. Hence, he has submitted that so far as the possession of said extent of land i.e., 41 cents is concerned, in the pleadings submitted by the respondent herein there is a mention and the Trial Court has taken into consideration the said aspect of the matter in its order on page No. 11.

Learned counsel drew the attention of this Court to the said portion of the observation made by the Trial Court, wherein it is observed that:

"since the suit property claimed by the applicants is non-agricultural and the original owner has initiated HRC proceedings, the petitioners are not entitled for the benefit under Sec. 7A of the Land Reforms Act and thereby for non establishing the claim as it is an agricultural land so as to grant in favour of the petitioners, the said petition has been dismissed. On perusal of the sketch annexed to the said order wherein it has been shown the suit schedule property to an extent of 41 cents and the statement annexed to the said order is also produced wherein it has been shown that the house with tree growths were existed in the suit property."

Referring to the said observation made by the Trial Court, learned counsel has also submitted that it prima-facie supports the case of the respondents herein even to the extent of 41 cents. It is his further contention that, at this interim stage this Court cannot ascertain whether the extent of the property is only 10 cents, as claimed by the petitioners, or it is more than that, and the proper stage to ascertain is during the course of trial. It is also submitted that even the matter has been seized by the Appellate authority for the grant of occupancy rights. Hence, he has contended that the submission made by the other side that the order is to be modified by this Court in these petitions and make it confined only to 10 cents, cannot be accepted. There are no merits in these petitions and hence, same is to be rejected.

I have perused the grounds urged in the petitions, the orders passed by the Trial Court on the injunction applications in respect of both the suits, so also the judgment passed by the First Appellate Court in the Miscellaneous Appeal.

Looking to the judgment and orders passed by the Courts below, after elaborate discussion both the Courts have concurred with the findings that the respondent herein made out a prima-facie case about his possession in respect of the suit schedule property. Hence, both the Courts have concurred and granted the injunction order in favour of the respondent herein. When there are concurrent findings by the Courts below so far as the factual aspects and possession is concerned, the scope of the writ Court is limited and it cannot be altered or modified, unless it is shown that there is patent illegality in the order passed by the Trial Court, which is confirmed by the First Appellate Court. Therefore, so far as the said aspect of the matter is concerned, it is fairly conceded by the learned senior counsel for the petitioners that the said findings of the Courts below cannot be disturbed at this stage.

Regarding the extent of the property, as it is canvassed by both sides elaborately referring to the RTC extract, it is no doubt true as on the date of filing the suit as it is brought to the notice of the Court by the learned senior counsel for the petitioners herein the extent is mentioned as 10 cents only, but looking to the RTC extract produced by the other side along with the list of documents today, it is shown as 1.47 cents and the materials, which are referred by the Courts below, while passing the injunction order on the applications filed before it, shows that the respondent herein has produced the documents to show prima-facie that the claim is to an extent of 41 cents.

Under such circumstances, at this stage in these petitions, this Court being a writ Court, cannot conduct a mini trial, and it requires recording of factual aspects to come to the right conclusion that whether really the property as claimed by the petitioners herein that it is only 10 cents or more than that, and it will be done by the Trial Court while trying the main suit. Therefore, the contention of the learned counsel for the petitioners herein, cannot be accepted, so as to modify or alter the orders passed by the Courts below with regard to the extent of the property is concerned. Thus, I do not find any illegality and infirmity in the orders passed by the Trial Court, which is confirmed by the First Appellate Court so as to interfere into the said judgment and orders. Accordingly, the petitions are hereby rejected.

However, in view of the submission of the learned senior counsel for the petitioners herein that the suits are of the year 2013 and because of the orders passed by the Courts below, the petitioners are completely prevented from developing their property and there is an extreme urgency in the matter, the Trial Court is hereby directed to take up both the suits on priority basis and to dispose of the them as early as possible but not later than six months from the date of receipt of the copy of this order.

Registry is hereby directed to send the copy of this order immediately to the concerned Trial Court.