Disposed

Neelawwa W/O Dyamappa Gadagi v. Sri Tammanna W/O Ramappa Chanakoti

Karnataka HC5 Apr 2021RSA/1491/2006

Case brief

AI extract

What is this about?

In a second appeal regarding a suit for permanent injunction over disputed property, the High Court reserved the question of title, observing that title should not be decided in injunction suits unless pleadings and issues are necessary and the matter is straightforward.

What did the court decide?

Appeal disposed of; liberty granted to plaintiff to file a comprehensive suit seeking declaratory relief against the defendants.

Neelawwa W/O Dyamappa Gadagi Vs Sri Tammanna W/O… — Specific Performance | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 5^TH DAY OF APRIL, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE E.S. INDIERSH

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REGULAR SECOND APPEAL NO.1491/2006 (INJ)

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BETWEEN:

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SMT. NEELAWWA W/O DYAMAPPA GADAGI AGED ABOUT 63 YEARS, OCC: AGRICULTURE AND HOUSEHOLD WORK R/O BETASUR, TAL: SAUNDATTI DISTRICT: BELGAUM 590 001

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SMT. SHIVALINGAWWA W/O KALLAPPA KANNALLI, AGED ABOUT 58 YEARS, REST –DO-

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…APPELLANTS

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(BY SRI.C.S.SHETTAR, ADVOCATE FOR SRI.JAGADISH PATIL, ADVOCATE)

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AND:

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SRI TAMMANNA W/O RAMAPPA CHANAKOTI AGED ABOUT 52 YEARS OCC: AGRICULTURE, R/O BETASUR TAL: SAUNDATTI, DISTRICT: BELGAUM 590 001

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SRI SHANKAR S/O RAMAPPA CHANAKOTI AGED ABOUT 50 YEARS, REST –DO-

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SRI SHIVAPPA S/O RAMAPPA CHANAKOTI AGED ABOUT 48 YEARS REST –DO-

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SRI VIRUPAXI S/O RAMAPPA CHANAKOTI AGED ABOUT 46 YEARS, REST –DO-

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SRI MALAKAJI S/O RAMAPPA CHANAKOTI AGED ABOUT 44 YEARS, REST –DO-

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SRI NAGAPPA S/O RAMAPPA CHANAKOTI AGED ABOUT 50 YEARS, REST –DO-

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…RESPONDENTS

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(NOTICE TO R1 TO R3, R5 & R6 IS HELD SUFFICIENT, NOTICE TO R4 SERVED)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 27.2.2006 PASSED IN R.A.NO.57/2005 ON THE FILE OF THE CIVIL JUDGE (SR.DN), SAUNDATTI, IN REVERSING THE JUDGMENT AND DECREE DT.23.09.2005 PASSED IN O.S.NO.88/1998 ON THE FILE OF THE CIVIL JUDGE (JR.DN), SAUNDATTI AND CONFIRM THE SAME, BY ALLOWING THIS APPEAL, IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS REGULAR SECOND APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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This appeal is preferred by the plaintiffs in Original Suit No.88 of 1998 on the file of the Civil Judge (Jr.Dn.), Saundatti (for short hereinafter referred to as ‘trial Court’) decreeing the suit of the plaintiffs, and being aggrieved by the same, defendants filed Regular Appeal No.57 of 2005 before the Civil

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Judge (Sr.Dn.), Saundatti (for short hereinafter referred to as ‘First Appellate Court’), which came to be allowed, setting aside the judgment and decree passed by the Trial Court.

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For the sake of convenience, the parties in this appeal are referred to as per their rank before the Trial Court.

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The plaintiffs have filed a suit against the defendants for permanent injunction contending that the portion of the schedule property mentioned in the sketch appended to plaint, is in dispute. It is the case of the plaintiffs that the said property belonged to their father and after his demise, the plaintiffs, being daughters, succeeded to the suit schedule property and they are in possession of the suit schedule property. It is the case of the plaintiffs that the defendants, without any right, title and interest over the property in question, are interfering with the plaintiffs’ peaceful enjoyment of the suit schedule property and therefore, have filed Original Suit No.88 of 1998 on the file of the trial Court. The defendants entered appearance, filed detailed written statement and disputed the title of the plaintiffs insofar as portion of the property in question. The trial Court framed issues for its consideration. Parties to the suit adduced

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evidence before the Trial Court. The Trial Court, after considering the material on record, by its judgment and decree dated 23^rd September, 2005 decreed the suit of the plaintiffs. Being aggrieved by the same, the defendants have filed first appeal in Regular Appeal No.57 of 2005 on the file of the First Appellate Court. The plaintiffs entered appearance and resisted the appeal. The First Appellate Court, after considering the material on record, by its judgment and decree dated 27^th February, 2006 allowed the appeal and thereby set aside the judgment and decree dated 23^rd September, 2005 passed by the Trial Court in OS No.88 of 1998.

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Being aggrieved by the judgment and decree passed by the first Appellate Court, the plaintiffs have preferred this appeal. This Court, by order dated 14^th September, 2011, framed the following substantial question of law:

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“Whether the plaintiffs-appellants have proved their title and lawful possession of the suit schedule property in accordance with law by producing relevant oral and documentary evidence?”

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Heard Shri C.S. Shettar, learned advocate for Shri Jagadish Patil for the appellant. Respondents are served, unrepresented. After arguing the matter for some time, with regard to the query made by this Court on paragraph 7 of the written statement, the learned counsel for the appellant submitted that he may be permitted to urge all the grounds urged in this appeal, before the competent court in the suit to be filed by the plaintiff seeking declaratory relief insofar as the property in question. I have carefully considered paragraph 7 of the written statement. The same reads as hereunder:

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“ 7. That the disputed area which is shown by red ink in the hand sketch is property exclusively belonging to defts and they are the true owners of the disputed property. Plffs. cannot claim beyong 31’ North-South at any point of time plffs. cannot insist injunction against true owner. ”

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The defendants have taken a plea that the defendants are the true owners of the disputed property and thereby questioned the title of the plaintiff. In this regard, it is refer to the judgment of the Hon'ble Supreme Court in the case of ANATULA SUDHAKAR v. BUCHI REDDY reported in

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(2008)4 SCC 594, at paragraph 21 of the judgment it is observed thus:

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“21 . To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:

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(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.

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(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.

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(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.

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(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will

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refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case .”

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In that view of the matter, without going into the

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merits of the case and considering the submission made by the learned counsel for the appellant seeking liberty to file fresh suit for declaratory relief, appeal is to be disposed of reserving the liberty to the plaintiff to file a comprehensive suit seeking declaratory relief against the defendants and in the event if such a suit is filed by the plaintiff before the competent court having jurisdiction, the said Court shall consider the question of limitation as provided under Section 14 of the Limitation Act and condone the delay. It is also open for the appellant to urge all the grounds urged in this appeal before the competent Court where suit would be filed. Subject to observation made and liberty given above, appeal stands disposed of.

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Sd/JUDGE

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Sh/lnn

Neelawwa W/O Dyamappa Gadagi v. Sri Tammanna W/O Ramappa Chanakoti

Case brief

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Neelawwa W/O Dyamappa Gadagi v. Sri Tammanna W/O Ramappa Chanakoti

Case brief

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