IN THE HIGH COURT OF KARNATAKA, CIRCUIT BENCH AT GULBARGA DATED THIS ThE 19TH DAY OF APRIL, 2011 BEFORE HON’ BLE MRS JUSTICE MANJULA CHELLUR WP NO. 80788 OF 2011(M-.CPC) BETWEEN SHARANABASAPPA 5/0 YENKANNA DIGGAVI Age:48 0CC: AGRICULTURE R/O KEMBHAVI TQ.SHORAPUR 2. SHARANAAGOUDA Sb SHANTAGOUDA PATIL Age:37 0CC: AGRICULTURE RIO WAJJAL TQ. SHORAPUR 3. BASWANThRAYAGOUDA S/0 SHANTAGOUDA PATIL Age:45 0CC: AGRICULTURE RIO CHANNUR TQ. SHORAPUR 4. ADAPPAGOUDA S/0 DEVAREDDY NAWADAGI Age:32 0CC: AGRICULTURE R/O HUNASAGI TQ. SHORAPUR / 7 F 7 5. NANAGOUDA Sb SANGANGOUDA Age:29 0CC: AGRICULTURE R/O HUNASAGI TQ. SHORAPUR ... PETITIONERS (By Sri. R S SIDHAPURKAR, ADV) AND 1. THE KRISHNA BHAGYA JALA NIGAM LTD THROUGH THE EXECUTIVE ENGINEER KBJNL, NLBC DIVISION, HUNASAGI TQ.SHORAPUR DIST. YADGIR 2. BASAPPA Sb HANMAPPA DANGI AGE. MAJOR 0CC: AGRICULTURE R/O HUNASAGI TQ. SHORAPUR 3. BASWANTHARAYAGOWDA S/O BASANGOUDA PATIL Age: 45 0CC: AGRICULTURE R/O ARKERA (J) TQ. SHORAPUR 4. THE SECRETARY GRAM PANCHAYAT HUNASAGI VILLAGE TQ . SHORAPUR DIST.YADGIR ... RESPONDENTS (By Sri. VEERESH B PATIL, ADV FOR C/Ri. Sri. MANVENDRA REDDY G.A, FOR R-4) 3 THIS WP IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI QUASHING ThE ORDER DATED 22.02.2011 PASSED ON LA. NO.1 IN M.A. NO. 3/2010 BY THE CIVIL JUDGE (SR.DN.) AT SHORAPUR, THE CERTIFIED COPY OF WHICH IS AT ANNEXURE-F. This Writ petition coming on for Preliminary hearing, this day. the Court made the following: ORDER Though the petition is posted today for preliminary hearing, with the consent of the learned counsel on both sides, the same is heard for final disposal. 2. Heard the learned counsel for the petitioners as well as learned counsel for the respondents. 3. The petitioners are the 4th purchaser of property in Sy. No. 167/E/2, measuring 26 guntas situated at Hunsgai Village, Tq. Shorapur. 4. According to respondent No.1 - plaintiff before the trial Court - The Krishna Bhagya Jala Nigam Ltd. (herein after referred to as ‘the Nigam’ for short) the / -K 4 property in Sy. No. 167/E/2 was totally measuring 1 acre 26 guntas. When the notification under Section 6(1) of the Land Acquisition Act (herein after referred to as ‘Act’ for short)was issued and later on after joint inspection, when it was found that it measures only 1 acre 20 guntas, an award came to be passed for 1 acre 20 guntas of land. Therefore, question of any one including the present petitioners purchasing 26 guntas of land in the sub No. 167/E would not arise. 5. The facts reveal that one Basappa was the original owner of this land when acquisition notification came to be made and even at the time of passing of the award. 6. According to the Nigam, one Sri. J. Srinivasalu Reddy was working as a contractor for the Upper Krishna Project and he with all the knowledge of acquisition proceedings etc. with his eyes open purchased the land from Basappa and the present jt 5 petitioners are the 4ti purchasers of the suit land, which was originally purchased by Sri. J. Srinivasalu Reddy. Therefore, having purchased the land with the knowledge of acquisition, J. Srinivasalu Reddy has passed on whatever interest he had in the said land to the subsequent purchasers. Therefore, the present petitioners cannot acquire better title than Srinivasalu Reddy that could have been acquired from Basappa. 7. The suit came to be filed by the Respondent Nigam for declaration that the sale deed in favour of the present petitioners is void. Therefore, he has to be restrained from entering the schedule property as he has not acquired any title from the said sale deed and the property in question was long back acquired by the Nigam. 8. The trial Court placing reliance on 0.S. No.218/1986 opined that principles of resjudicata apply and further the plaintiff - Nigam has not come to Court 6 with clean hands, therefore, temporary injunction was rejected. 9. However, the First Appellate Court on clarification of the facts held that in the earlier suit O.S. No.218/1986, Nigam was not a party so also its predecessor in title Upper Krishna Project was not a party. Only the engineers and other officials in their individual capacity were made parties. Therefore, it was not possible for the Nigam to know the details of the earlier suit. If Nigam is claiming right, title or interest from any of the individuals against whom the decree came to be passed, then question of resjudicata etc. would apply. The suit is binding only against the individuals, who were made parties or any one claiming under them. In the absence of Nigam claiming any right, title or interest under the defendants against whom the petitioners have taken a decree, question of the respondent—Nigam seeking injunction from the 7 Court would not arise and earlier proceedings cannot affect the present respondent-Nigam. In that view of the matter, the first appellate Court having regard to the peculiar nature of the contentions raised by the parties held that it is a mixed question of law and fact which has to be gone into at the time of trial. Therefore, having regard to the fact that there is notification under Section 6(1) of the Act and an award in respect of Sy. No. 167/E measuring 1 acre 20 guntas, held that a prima facie case has been made out and balance of convenience is also in favour of the first respondent- plaintiff - Nigam. 10. The contention of the learned counsel for the petitioners that 4(1) notification was not issued in respect of the entire property also can be thrashed at the time of trial. The appellate Court was justified in saying that the present petitioners shall not put up any z 8 S construction on the suit schedule property till the disposal of the suit. 11. HavIng regard to the entire situation, It would be just and proper to dispose of the suit as expeditiously as possible, but not later than 6 (six) months from the date of receipt of copy of this order and I do not find any good ground to Interfere with the opinion of the first appellate Court. 12. AccordIngly, wrIt petition Is dismissed. However, the trial Court shall not be Influenced by any of the observations made herein. Sd/ Lg 3UD2E