- 1 - HC-KAR NC: 2025:KHC-D:17468 WP No. 105218 of 2024 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 8TH DAY OF DECEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE WRIT PETITION NO. 105218 OF 2024 (GM-CPC) BETWEEN: 1. PRASHANTH K.M. S/O LATE K.M. GURUMURTHY SWAMY, AGE. 47 YEARS, OCC. PRIVATE WORK, R/O. #4-302, ANUGRAHA, BHAVANI NAGAR, ALEVOOR ROAD, NEAR WAGLE STORE, MANIPAL-576 104. 2. POORNIMA G. KALLIMATH W/O NIJAGUNA SHIVAYOGI, AGE. 44 YEARS, OCC. ASST. ENGINEER, R/O. #1598/148, SHIVAPURI, BANASHANKARI, BADAVANE, DAVANAGERE-577 005. 3. PRASAD G. KALLIMATH S/O LATEK.M. GURUMURTHY SWAMY, AGE. 41 YEARS, OCC. MEDICAL REPRESENTATIVE, R/O. #1847/216, 2ND MAIN, 4TH CROSS, VINAYAKA BADAVANE, VIDYANAGAR EXTENSION, DAVANAGERE-577 005. … PETITIONERS (BY SRI. ABHINANDAN M. GUNDAWADE, ADVOCATE) AND: 1. KENCHANNA S/O BASAPURADA REVANNA, AGE. 44 YEARS, OCC. AGRICULTURE, CHANDRASHEKAR LAXMAN KATTIMANI Location: HIGHCOURT OF KARNATAKA DHARWAD BENCH DHARWAD - 2 - HC-KAR NC: 2025:KHC-D:17468 WP No. 105218 of 2024 R/O. UCHANGIDURGA, TQ. HARAPANAHALLI, DIST. VIJAYANAGARA-583 131. 2. KOTAPPALA GURUVAPPA S/O KOTAPPALA BASAVARAJA, AGE. 40 YEARS, OCC. AGRICULTURE, R/O. NEAR HIGH SCHOOL, UCHANGIDURGA, TQ. HARAPANAHALLI, DIST. VIJAYANAGARA-583 131. 3. CHIKKAVEERAPPA VEERANNA S/O CHIKKAVEERAPPA VEERABHADRA, AGE. 42 YEARS, OCC. AGRICULTURE, R/O. RAMAGHATTA ROAD, UCHANGIDURGA, TQ. HARAPANAHALLI, DIST. VIJAYANAGARA-583 131. … RESPONDENTS (BY SRI. K.L. PATIL, ADVOCATE FOR R1 TO R3) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER WRIT, QUASH THE ORDER DATED 17-04-2023, PASSED IN O.S. NO.239/2022, PENDING ON THE FILE OF CIVIL JUDGE AND JMFC COURT, HARAPANAHALLI BY ALLOWING THE APPLICATION I.A. NO.2/2024, FILED U/O. XXXIX RULE 1 AND 2 OF CPC, AT ANNEXURE-E AND ALSO THE ORDER DATED 15-07-2024, IN M.A. NO.03/2023, PASSED BY SENIOR CIVIL JUDGE AND JMFC, HARAPANAHALLI AT ANNEXURE-F; ISSUE A WRIT IN THE NATURE OF MANDAMUS OR ANY OTHER WRIT DIRECTING THE RESPONDENT NO.1 TO 3 AND THEIR HENCHMEN OR ANY PERSON NOT TO CARRY ANY KIND OF BURIAL OR CREMATION IN THE SUIT PROPERTY OF THE PETITIONERS TILL THE DISPOSAL OF THE SUIT AND ETC. THIS PETITION COMING ON FOR FURTHER HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC-D:17468 WP No. 105218 of 2024 ORAL ORDER (PER: THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE) Heard the learned counsel appearing for the petitioners and the learned counsel appearing for the respondents. 2. This petition is filed assailing the order, marked as Annexure-E, dated 17.04.2023 passed on I.A.No.II in O.S.No.239/2022 on the file of Civil Judge, Harapanahalli1, and the order, marked as Annexure-F, dated 15.07.2024 passed in M.A.No.03/2023 on the file of Senior Civil Judge, Harapanahalli2. 3. I.A.No.II in O.S.No.239/2022 filed under Order XXXIX Rules 1 and 2 read with Section 151 of the Code of Civil Procedure,1908, by the plaintiff, seeking temporary injunction against the defendants, was rejected by the Trial Court. 4. The second order is the order dismissing the miscellaneous appeal filed by the plaintiffs/petitioners. The plaintiff’s application seeking a temporary injunction to restrain the defendants from interfering with the plaintiff's 1 For short, ‘Trial Court’ 2 For short, ‘Appellate Court’ - 4 - HC-KAR NC: 2025:KHC-D:17468 WP No. 105218 of 2024 peaceful possession and enjoyment of Sy.No.214/C of Uchangidurga village, Harapanahalli Taluk, measuring 01 acre 87 cents, was rejected on the premise that the said property is used as a graveyard by the public. 5. Learned counsel appearing for the petitioners would contend that the property is ancestral property of the plaintiff, and the plaintiff’s name appeared in the property records as the owner. The property was never acquired by the Government for use as a graveyard, and the defendants cannot claim any right over the said property, unless it is duly registered as a graveyard under the provisions of Section 92 of the Karnataka Gram Swaraj and Panchayat Raj Act, 19933. 6. To substantiate his contention, learned counsel would refer to the record of rights pertaining to the petition property. In the RTC marked as Annexure-G, for an extent of 2 acres 74 cents, the name of Mathada Shanmukaiah is shown as the person in ownership and possession for the year 2004-05. For the year 2007-08, the name of K.M. Sharadamma, wife of 3 For short, ‘Act of 1993’ - 5 - HC-KAR NC: 2025:KHC-D:17468 WP No. 105218 of 2024 Shanmukaiah, is shown, and for the year 2022-23, the names of K.M. Gurumurthy/K.M. Shanmukaiah appear. It is further submitted that after the demise of K.M. Gurumurthy, his legal representatives were brought on record, and their names have been entered in the property records. 7. Learned counsel appearing for the respondents/defendants would urge that the suit is not maintainable. The suit of this nature should have been filed by making the Government as party and in a representative capacity. Further, there is no allegation that the defendants are using the petition property as a graveyard, as such, the Trial Court is justified in dismissing the application seeking a temporary injunction against the defendants, and the Appellate Court is justified in dismissing the appeal. 8. Learned counsel appearing for the defendants/respondents would also urge that both Courts have referred to the survey sketch, which marks Sy.No.214 with a plus mark (+), indicating that the property is a graveyard. The present suit, however, is filed in respect of - 6 - HC-KAR NC: 2025:KHC-D:17468 WP No. 105218 of 2024 Sy.No.214/C, and whether the property shown as Sy.No.214/C is a graveyard or not is a matter that requires trial. Since the entire Sy.No.214 is shown as a graveyard in the sketch, the Trial Court is justified in dismissing the application seeking a temporary injunction, and the Appellate Court is also justified in dismissing the suit. 9. Learned counsel appearing for the petitioners would submit that the graveyard is in Sy.No.410 and same is evidenced from the endorsement issued by the Tahsildar, Harapanahalli. 10. Learned counsel appearing for the defendants/respondents would submit that the said graveyard is not pertaining to the village where the defendants/respondents are residing. 11. The Court has considered the contentions raised at the Bar and perused the records. 12. The record of rights pertaining to Sy.No.214/C would indicate the name of the plaintiff and, at present, would - 7 - HC-KAR NC: 2025:KHC-D:17468 WP No. 105218 of 2024 indicate the name of the petitioners, who are the legal representatives of deceased plaintiff. The record of rights reflects that the property is an agricultural land, and no portion of the property is shown as Kharab land. Whether Sy.No.214/D is the graveyard or Sy.No.214/C is the graveyard is a matter which requires trial. However, prima facie, the record shows that the names of the petitioners, preceded by the name of the plaintiff, and prior to that, the name of the plaintiff’s predecessor, as owners. No records are produced to show that the land has been acquired by the Government for use as a graveyard. It is also noticed that the plaintiff is claiming rights only over the property bearing Sy.No.214/C. 13. Under these circumstances, the Trial Court and the Appellate Court could not have rejected the application on the premise that which portion of Sy.No.214/C is a graveyard, and which portion is not a graveyard is a matter for trial. The record of rights prima facie indicates that the property in question is not a graveyard. The prima facie presumption - 8 - HC-KAR NC: 2025:KHC-D:17468 WP No. 105218 of 2024 arising from entries in the record of rights has not yet been rebutted. 14. Hence, the following: ORDER a) The petition is allowed. b) The order, marked as Annexure-E, dated 17.04.2023 passed on I.A.No.II in O.S.No.239/2022 on the file of Civil Judge, Harapanahalli, and the order, marked as Annexure-F, dated 15.07.2024 passed in M.A.No.03/2023 on the file of Senior Civil Judge, Harapanahalli, are set aside. c) The defendants/respondents and their agents are restrained from interfering with the plaintiffs’ possession over the suit property till the disposal of the suit. d) It is made clear that observations made in this order are only tentative. The Court has - 9 - HC-KAR NC: 2025:KHC-D:17468 WP No. 105218 of 2024 not recorded any finding as to whether the petition property is a graveyard or not. e) The Court has not recorded any finding as to whether the defendants have any right over the property or not. f) Both parties shall cooperate for early disposal of the suit. Sd/- (ANANT RAMANATH HEGDE) JUDGE PMP CT:BCK/LIST NO.: 1 SL NO.: 97