Disposed

Holiyamma W/O Dyamappa Pujar v. Basalingappa S/O Hanumappa Pujari

Karnataka HC5 Mar 2021RSA/1547/2005

Case brief

AI extract

What is this about?

The Second Appellate Court disposed of a regular second appeal regarding a permanent injunction suit. Citing Anathula Sudhakar, the court held that since it could not investigate title in an injunction suit, it reserved liberty for the plaintiffs to file a comprehensive suit for declaration and possession, benefitting them under Section 14 of the Limitation Act.

What did the court decide?

The second appeal stands disposed of; liberty is reserved to the appellants/plaintiffs to file a suit for declaration with consequential relief if so advised.

Holiyamma W/O Dyamappa Pujar Vs Basalingappa S/O… — Property and Title | 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 MARCH 2021

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BEFORE

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THE HON’BLE MR. JUSTICE E.S.INDIRESH

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REGULAR SECOND APPEAL NO.1547 OF 2005 (INJ)

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BETWEEN:

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HOLIYAMMA,

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W/O. DYAMAPPA PUJAR, AGE: 70 YEARS, OCC:AGRIL.

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APPELLANTS 2 TO 7 ARE THE LRS OF DECEASED APPELLANT NO.1

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YANKAPPA,

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S/O. DYAMAPPA PUJAR, AGE 50 YEARS, OCC:AGRIL.

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LAXMAPPA,

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S/O. DYAMAPPA PUJAR, AGE 48 YEARS,

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OCC:AGRIL.

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NINGAPPA,

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S/O. DYAMAPPA PUJAR, AGE 46 YAER,

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OCC:AGRIL.

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SHANTAPPA,

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S/O. DYAMAPPA PUJAR, AGE 42 YEARS,

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OCC:AGRIL.

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DEVAPPA,

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: 2 :

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S/O. DYAMAPPA PUJAR,

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AGE 40 YEARS, OCC:AGRIL.

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HANUMANTHAPPA, S/O. DYAMAPPA PUJAR, AGE 37 YEARS, OCC:AGRIL.

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ALL ARE RESIDENT OF HADARAM AGGI, TQ & DIST. KOPPAL-583 231.

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... APPELLANTS

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(BY SRI.DEEPAK C. MAGANUR, ADVOCATE FOR SRI.CHANDRASHEKAR P.PATIL, ADVCOATE)

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AND:

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BASALINGAPPA, S/O. HANUMAPPA PUJARI, AGE:MAJOR, OCC:AGRICULTURE,

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DYAMAPPA, S/O.HANUMAPPA PUJARI, AGE: MAJOR, OCC: AGRICULTURE,

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ERAPPA, S/O. HANUMAPPA PUJARI, AGE MAJOR, OCC:AGRICULTURE

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... RESPONDENTS

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(BY SRI.B.SHARANA BASAWA, ADVOCATE FOR R2 AND R3 V/O. DTD. 5.11.2020, APPEAL AGAINST R1 ABATED)

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THIS R.S.A. IS FILED UNDER SEC. 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 28.02.2005 PASSED IN RA NO.130/04 ON THE FILE OF THE DISTRICT AND SESSIONS JUDGE, FTC-II, KOPPAL, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 09.04.03 PASSED IN OS NO.54/2000 ON THE FILE OF THE CIVIL JUDGE (JR.DN.), KOPPAL.

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THIS R.S.A. 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 against the judgment and decree dated 09^th April, 2003 in Original Suit No.54 of 2000 on the file of Civil Judge (Jr. Dn.) at Koppal decreeing the suit of the plaintiff and being aggrieved by the same, defendants preferred Regular Appeal No.130 of 2004 on the file of District and Sessions Judge and FTC-II at Koppal, whereby the First Appellate Court allowed the appeal filed by the defendants and thereby set aside the judgment and decree passed by the trial Court. Being aggrieved by the same, the plaintiffs have preferred this second appeal.

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For the sake of convenience, the parties in this appeal are referred to as per their status and ranking before the trial Court.

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It is the case of the plaintiffs that the plaintiffs are the owner in possession of the land bearing Survey No.65 of Gudlanoor village to an extent of 2.20 guntas and the said land has been allotted in favour of the grandfather of the plaintiffs. It is further averred in the plaint that the defendants, without any right or title in respect of suit schedule property, are interfering with the

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peaceful possession and enjoyment of the same and accordingly, the plaintiffs have filed Original Suit No.54 of 2000 on the file of trial Court seeking relief of permanent injunction. The plaintiffs further stated that the defendants had filed Original Suit No.100 of 1995 seeking declaration and injunction against the plaintiffs, which came to be dismissed for non-prosecution. However, it is stated in the plaint that the defendants had filed IA.I under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure and sought for issuance of temporary injunction against the plaintiffs in the said suit and the said application was also dismissed on merits on 06^th November, 1995 and being aggrieved by the same, defendants have preferred Miscellaneous Appeal No.18 of 1995 before the Civil Judge (Sr. Dn.), Koppal and the said appeal also came to be dismissed by confirming the order of the trial Court. Being aggrieved by the same, the defendants have approached this Court in Civil Revision Petition No.2136 of 1996 and the said Revision Petition came to be dismissed on 07^th August, 1996. Accordingly plaintiffs have filed Original Suit No.54 of 2000. Upon issuance of summons, defendants entered appearance and filed written statement contending that the suit land was allotted in favour of Sannahanamappa, Basalingappa in Survey No.335/3 of Gudaloonur

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village, measuring 05 acres and the said survey number was renumbered as Survey No.65. It is contended by the defendants that the plaintiffs have preferred appeal before the Assistant Commissioner challenging the entries made in the record of rights and the said revenue proceedings are pending consideration before the Assistant Commissioner, Koppal and therefore disputed the title of the plaintiffs. Based on the pleadings on record, the trial Court has formulated issues for its consideration. In order to prove their case, plaintiff No.4 was examined as PW1 and produced eleven documents and the same were marked as Exhibits P1 to P11. The defendant No.2 was examined as DW1 and examined another independent witness as DW2 and produced eight documents and same were marked as Exhibits D1 to D8. The trial court, considering the material on record, by its judgment and decree dated 09^th April, 2003 decreed the suit of plaintiffs and thereby directed defendants not to interfere with the peaceful possession and enjoyment of the plaintiffs over the suit land bearing survey No.65 of Gudlanoor village, Koppal District, admeasuring 2.20 acres. Being aggrieved by the judgment and decree passed by the trial Court, the defendants filed Regular Appeal No.130 of 2004 on the file of the First Appellate Court and the said appeal was resisted

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by the plaintiffs. The First Appellate court, after re-appreciating the material on record, by its judgment and decree dated 28^th February, 2005 allowed the appeal and consequently dismissed the suit of the plaintiffs. Being aggrieved by the same, plaintiffs have preferred this second appeal.

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This Court, by order dated 16^th March, 2007 has formulated the following substantial question of law:

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“Whether re-appreciation of evidence by the appellate court is proper and correct?”

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I have heard Shri Deepak C. Maganur, learned Advocate appearing on behalf of Shri Chandrashekar P. Patil, learned counsel for the appellant, and Shri B. Sharanabasava, learned Counsel appearing for respondents No.2 and 3 and perused the original records as well as the finding recorded by both the courts below.

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Shri Deepak C. Maganur, learned counsel for the appellant submitted that originally the suit schedule land was allotted in favour of Hanamappa Pujari, who is the grandfather of plaintiffs to an extent of 5 acres. He further contended that the grandfather of the plaintiffs have parted with half portion of the land on the

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eastern side in favour of one Dyamappa Pujari, the father of plaintiffs and the remaining half share on the western side in favour of father of the defendants and therefore he contends that the defendants have filed Original Suit No.100 of 1995 on the file of the trial Court seeking relief of declaration and injunction, which came to be dismissed on 24^th June, 1999 and thereafter, no steps were taken by the defendants to challenge the dismissal of the suit and the same is binding on the defendants. He further contended that the application filed by the defendants in Original Suit No.100 of 1995 under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure came to be rejected and against the same, the defendants have filed appeal in MA No.18 of 1996, which also came to be dismissed and thereafter, defendants have preferred Revision before this Court in CRP No.2136 of 1996 and the said Revision came to be dismissed by this Court confirming the order passed by the trial Court insofar as temporary injunction is concerned and therefore, he contends that the defendants have no right to interfere with the suit schedule property.

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After arguing the matter on merits for some time, learned counsel appearing for the plaintiff/appellants submitted that since the suit is one filed for bare injunction and the defendants have

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questioned the title of the plaintiffs in the written statement, and accordingly, he seeks leave of the Court for disposal of the appeal reserving liberty to the plaintiffs to file a comprehensive suit for declaration with consequential relief before the competent court against the defendants. This aspect of the matter was not disputed by the learned counsel appearing for the respondent/defendants. I have carefully considered the submissions made by the learned counsel appearing for the parties. In view of the law declared by the Hon’ble Supreme Court in the case of ANATHULA SUDHAKAR v. P. BUCHI REDDY reported in (2008)4 SCC 594, the Hon’ble Supreme Court, wherein it is held that, the scope of civil cases are circumscribed by the limitations placed by the rules of pleadings, nature of relief claimed and the court fee paid. The predicament of the plaintiffs was brought upon themselves, by failing to convert the suit to one for declaration even when the written statement was filed, and by not seeking amendment of issues to include an issue on the question of title. It is held that appropriate remedy in cases where the plaintiff’s title is under a cloud and the remedy is to file a suit for declaration and possession with or without consequential injunction. 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 [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. 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 refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case. ”

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Admittedly, suit is filed for bare injunction and the defendants have questioned the title of the plaintiffs in the written statement and so also the perusal of the record would clearly indicate that the defendants have filed a suit in Original Suit No.100 of 1995 seeking declaration with consequential relief, which came to be dismissed for default and has not reached finality on merits and in that view of the matter, taking into consideration the pleadings on record, the submission made by the learned counsel for the appellants is accepted and liberty is reserved to the plaintiffs to file a suit for declaration against the defendants, if they are so advised, in the circumstances of the case. In that view of the matter and for the foregoing reasons, in view of the fact that the

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plaintiffs are willing to file a suit for declaration for consequential relief, in the peculiar circumstances of the case on hand, the substantial question of law framed in this appeal, requires no finding. Hence, I proceed to pass the following:

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O R D E R

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Appeal stands disposed of reserving liberty to the appellant/plaintiffs to file a suit for declaration with consequential relief, if they are so advised;

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It is made clear that the suit is filed on 13^th March, 2000 and the proceedings having been continued till date and in that view of the matter, if the plaintiffs file a suit for declaration with consequential relief against the defendants, the plaintiffs are entitled for benefit under Section 14 of the Limitation Act;

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If such suit is filed the trial Court shall consider the same in accordance with law without being influenced by the finding recorded by the both the Courts below as well as in these proceedings.

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All contentions of the parties are kept open.

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Sd/JUDGE

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lnn

Holiyamma W/O Dyamappa Pujar v. Basalingappa S/O Hanumappa Pujari

Case brief

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Holiyamma W/O Dyamappa Pujar v. Basalingappa S/O Hanumappa Pujari

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