1. K.C. Rudraswamy, 66 Years, S/O Late Channasabappa, 2. K.C

1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30 th DAY OF MARCH, 2015 BEFORE THE HON' BLE MR. JUSTICE N.KUMAR WRIT PETITION Nos. 39782-784/2013 (GM-CPC) BETWEEN: 1. K.C. Rudraswamy, 66 Years, S/o late Channasabappa, 2. K.C. Basavanna, Aged 61 years, S/o late Channabasappa 3. K.C. Mahadevappa, Aged 56 years, S/o late Channabasappa, All are residing at Kirugavalu village, Kirugavalu Hobli, Malavalli Taluk, Mandya District-571430 ... PETITIONERS (By Sri L. Raja, Advocate) AND: K.C. Nataraju, Aged 71 years, S/o late Channabasappa, R/at Kirugavalu village, Kirugavalu Hobli, Malavalli Taluk, Mandya District-571 430. ... RESPONDENT (By Sri Manjunath G. Khandekar, Advocate) 2 These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India praying to set aside the order passed by the Senior Civil Judge, Malavalli in M.A.No.7/2013 dated 19.7.2013 vide Annexure-N. These Writ Petitions coming on for Preliminary Hearing ‘B’ Group this day, the Court made the following: ORDER These are the plaintiffs’ writ petitions challenging the order passed by the Lower Appellate Court setting aside the order of temporary injunction passed in favour of them by the trial Court. 2. The plaintiffs had filed a suit for declaration of their title. They claim that they are the owners of 19 guntas of land in Sy.No.284/7 situated at Kirugavalu village, Kirugavalu Hobli, Malavalli Taluk, Mandya District. They claim title under the partition. Defendant and other members of the joint family claim that in the said partition they got 18 guntas of land. When mutation entry was made 3 in favour of the plaintiffs in respect of 19 guntas of land, that was challenged by the defendant by preferring an appeal to the Assistant Commissioner, who set aside the same and directed the mutation entry to be made in favour of defendant in respect of two guntas out of 19 guntas claimed by the plaintiffs. Though the trial Court granted an order of injunction on the basis of the original entries, the Appellate Authority taking note of the order passed by the Assistant Commissioner, has set aside the same. It is against this order, the plaintiffs have preferred these writ petitions. 3. I have heard the learned Counsel for the parties. 4. The relationship is not in dispute. The partition effected between the members of the joint family is not in dispute. Defendant did not disclose that the plaintiffs are entitled to 17 guntas out of 19 4 guntas of land. It is also not in dispute that the defendant has sold away 16 guntas of land which fell to his share in the partition. Their case is that in the partition, they got 18 guntas of land. The material on record discloses that though in the original sale deed, the extent of land mentioned is more, after partition when survey was conducted, they found that the measurement is not proper. Therefore, by consent of parties, they are enjoying proportionately reduced area. The plaintiffs have retained the said property and are in possession of the property. 5. Admittedly, the defendant has sold away 16 guntas of land and he is not in possession. Therefore, the dispute is - to whom this 2 guntas of land belong? That is a matter to be decided by the trial Court after recording of evidence. In view of the fact that in the sale deed executed by the 5 defendant, specific boundaries are given to the extent of the sale effected by him and the fact that he has not disclosed in the sale deed retaining of this 2 guntas of land nor the schedule discloses to which direction this 2 guntas of land is situated. The only inference prima facie that could be drawn is whatever property which the defendant got on the partition has been sold away and at any rate, he is not entitled to the said 2 guntas of land. The lower Appellate Authority did not look into the undisputed two registered sale deeds executed by the defendant and his brother and the boundaries mentioned therein and therefore, the order passed by the lower Appellate Authority cannot be sustained and is liable to be set aside. 6. In that view of the matter, I pass the following: 6 ORDER i) Writ Petitions are allowed; ii) The impugned order passed by the lower Appellate Authority is set aside; iii) The original order passed by the trial Court is restored. iv) It is made clear that the trial Court shall decide the case on merits and in accordance with law without in any way being influenced by any of the observations made by this Court in this order. Sd/- Judge Nsu/- .

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