Full Judgment Text
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PETITIONER:
SRI HANUMANTHAPPA
Vs.
RESPONDENT:
SRI MUNINARAYANAPPA
DATE OF JUDGMENT: 07/10/1996
BENCH:
K. RAMASWAMY, G.B. PATTANAIK
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Leave granted.
We have heard learned counsel on both sides.
No doubt this appeal arises from an interlocutory
application, since it has an effect on the judicial
proceedings that have become final; we think that at this
stage, it would be appropriate to interfere with this matter
and correct it.
This appeal by special leave arises from the order and
judgment of the High Court of Karnataka made on 20.10.1995
in C.R.P. No.420/95. Admittedly, the appellant had
instituted the suit for partition and separate possession of
the suit property in 1966 in Suit No.88/66 which was
dismissed on February 20, 1988. On appeal, after the remand
by the High Court, Appeal No.98/88 culminated in a
compromise. A compromise decree was passed on February 29,
1990 (sic.). Thereunder the appellant was given from the
total extent of 3 acres 39 guntas of lands towards his share
and decree in that behalf was passed. under the Panchnama
drawn by the Tehsildar on July 22, 1993 the appellant was
put in possession of 39 guntas of land as per the certified
copies of the Panchnama filed in the trial Court as Item
No.17 of the documents filed in the present suit. The
district Court also in the present proceedings recorded a
finding in paragraph 14 of its order that the appellant. was
put in possession of 39 guntas of land.
The question, therefore arises: whether an injunction
can be issued against the appellant? It is not in dispute
that pending that partition suit No.88/66, the respondent
had purchased the land belonging to his vendors including 39
guntas of land under registered sale deed dated February 24.
l986. Undoubtedly the respondent was not a party to the
compromise decree dated February 29, 1990. Since he
purchased the property pending the suit for partition,
a compromise decree having been executed by the parties in
which the right of the appellant to the extent of 39 guntas
was crystallized and he was duly put in possession,
necessarily, he was in lawful possession of the property as
an owner. The question is: whether an injunction can be
issued against the lawful owner? It is settled legal
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position that no injunction can be issued against a lawful
owner of the property. The High Court proceeded on the
premise that the appellant was put in possession of the
property after the interim injunction was granted by the
trial Court. It is factually incorrect since the injunction
was granted by the trial Court only on January 5, 1994 by
which date he had already been put in possession by the
Tehsildar under the Panchnama dated July 22, 1993. Under
these circumstances, the High Court also was in error in
coming to the conclusion that the appellant cannot be in
lawful possession since he had come in possession after the
injunction was issued under Order 39 Rules 1 and 2 of CPC.
The appeal is accordingly allowed. The orders of the
courts below stand set aside. But in the circumstances
without costs.
It is made clear that since the respondent has
purchased the property pending the suit, it would be open to
him to proceed against his vendor in accordance with law.