Dismissed

Marigowda v. Sannegowda

Karnataka HC9 Nov 2023RSA/1066/2016

Case brief

AI extract

What is this about?

High Court Bench dismissed a second appeal filed by an appellant against the dismissal of a suit seeking negative declaration and injunction. The court held that suits for negative declarations lacking a real threat to title are not maintainable under Section 34 of the Specific Relief Act.

What did the court decide?

The second appeal filed is dismissed. Pending applications, if any, are also dismissed.

Marigowda Vs Sannegowda — Property and Title | Karnataka HC (2023)

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1 - NC: 2023:KHC:40201 RSA No. 1066 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM

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REGULAR SECOND APPEAL NO. 1066 OF 2016 (DEC/INJ)

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BETWEEN:

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MARIGOWDA S/O THIMMEGOWDA AGED ABOUT 72 YEARS R/AT D.NO 63, 2ND CROSS METAGALLI BADAVANE MYSURU - 570023

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…APPELLANT

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(BY SRI. RAMESH H E , ADVOCATE)

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AND:

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SANNEGOWDA S/O DASEGOWDA

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Digitally signed by CHAITHRA A Location: HIGH COURT OF KARNATAKA

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R/AT NO.16, 1ST MAIN MAHADESHWARA CROSS ROAD KUMBARAKOPPAL

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MYSURU - 570023

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THE SUPERINTENDENT P K T B & C S HOSPITAL K R S ROAD MYSURU - 570023

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THE SECRETARY MARAGODANAHALLY VILLAGE PANCHAYATH, MARAGODANAHALLY

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NC: 2023:KHC:40201 RSA No. 1066 of 2016

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KASABA HOBLI MYSURU - 570023

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…RESPONDENTS

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(BY SRI. B S NAGARAJ, ADVOCATE FOR R1; SRI.SAMPATH KUMAR, ADVOCATE FOR R.2; R.3 - SERVED AND UNREPRESENTED)

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THIS RSA IS FILED UNDER SEC.100 OF CPC,1908 AGAINST THE JUDGMENT AND DECREE DATED 29.2.2016 PASSED IN RA NO.219/2014 ON THE FILE OF THE II ADDL. DISTRICT JUDGE, MYSURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 2.08.2013 PASSED IN OS NO.1859/2009 ON THE FILE OF THE IV ADDL. I CIVIL JUDGE (JR.DVN) AND JMFC AT MYSURU AND ETC.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The captioned second appeal is filed by the unsuccessful plaintiff, wherein the plaintiff's suit seeking relief of declaration that defendant No.1 has no right to use the suit property and put up any construction upon the suit property and for consequential relief of permanent injunction is dismissed by both the Courts by holding that the said suit is not maintainable.

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3 - NC: 2023:KHC:40201 RSA No. 1066 of 2016

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For the sake of brevity, the parties are

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referred as they are ranked before the Trial Court.

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Brief facts leading to the case are as under;

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The plaintiff has filed the present suit alleging that suit property is owned by defendant No.2 and defendant No.1, without having any semblance of right and title over the suit property, is trying to put up the construction over the suit property. The plaintiff claimed that he is the owner of the adjoining property and therefore, contended that he is entitled for easementary right over the property owned by him and the action of defendant No.1 in putting up construction in the suit property would seriously prejudice his easementary right. Therefore, the present suit is filed seeking declaration to declare that defendant No.1 is not entitled to put up construction in the suit property and for consequential relief of injunction.

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Both Courts having taken note of the relief sought in the plaint and having upheld the objection raised

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NC: 2023:KHC:40201 RSA No. 1066 of 2016

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by defendant No.1 in regard to maintainability of the suit have proceeded to dismiss the suit by holding that the plaintiff cannot maintain a suit in the present forum.

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Heard learned counsel appearing for the

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parties and perused the concurrent findings recorded by the both the Courts.

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The Appellate Court has culled out the prayer sought by the plaintiff. I deem it fit to cull out the prayer sought by the plaintiff in the plaint.

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"a) For a declaration that the first defendant has no right to use or put up any sort of construction in or upon the suit schedule property;

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b) For a consequential permanent injunction restraining the first defendant, his agents, supporters or any other persons acting under him from putting up or raising any construction in the schedule property;

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5 - NC: 2023:KHC:40201 RSA No. 1066 of 2016

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c) Direct the first defendant by way of a mandatory injunction to remove the unauthorized foundation laid in the schedule property."

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On reading the facts narrated by both the

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Courts, it is noticed that the plaintiff has filed the present suit contending that the suit property is owned by defendant No.2 and that the plaintiff has encroached over the property by putting up construction. A declaration is also sought that defendant No.1 is not entitled to put up any construction over the suit property. Both Courts having taken note of the relief of declaration sought have come to the conclusion that the plaintiff cannot seek negative declaration.

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The general power vested in the courts in

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India under the Civil Procedure Code is to entertain all suits of a civil nature, excepting suits of which cognizance is barred by any enactment for the time being in force. However Courts do not have the general power of making

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6 - NC: 2023:KHC:40201 RSA No. 1066 of 2016

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declarations except in so far as such power is expressly conferred by statute. The utility and importance of the remedy of declaratory suits are manifest, for its object is 'to prevent future litigation by removing existing cause of controversy.' It is certainly in the interest of the State that this jurisdiction of court should be maintained, and the causes of apprehended litigation respecting immovable property should be removed. However, a declaratory decree confers no new right; it only clears up the mist that has been gathering round the plaintiff's status or title.

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Section 34 of the Specific Relief Act

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contemplates certain conditions, which are to be fulfilled by the plaintiff. The plaintiff claiming declaratory relief must show that he is entitled

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1. to a legal character, or

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1. to a right as to property, and that

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1. the defendant has denied or is interested to deny his title to such character or right and

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1. he has sought all reliefs in the suit.

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7 - NC: 2023:KHC:40201 RSA No. 1066 of 2016

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In the light of the scope provided under

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Section 34 of the Specific Relief Act, it is clearly evident that object of Section 34 of the Specific Relief Act is obviously to provide a perpetual bulwark against adverse attacks on the title of the plaintiff, where a cloud is cast upon it, and to prevent further litigation by removing existing cause of controversy. Therefore, the threat to the plaintiff's legal character has to be real and not imaginary. Strangely, in the present case on hand, the plaintiff is not asserting title over the suit property and he is seeking declaration that defendant No.1 has no right to put up construction, which is obviously negative declaration.

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Both Courts have also held that if defendant No.2 is the absolute owner, it is for him to protect the suit property and therefore, the plaintiff has no locus to institute the present suit. On examination of the records, I am of the view that both the Courts were justified in dismissing the suit. The plaintiff's suit seeking negative declaration is not at all maintainable. Both Courts have

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8 - NC: 2023:KHC:40201 RSA No. 1066 of 2016

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rightly adverted to the said proposition of law, while dismissing the suit.

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No substantial question of law arises for

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consideration in this appeal.

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Second appeal is devoid of merits and

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accordingly, stands dismissed.

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Pending applications, if any, are also dismissed.

Sd/-

JUDGE

NBM

List No.: 1 Sl No.: 7

Marigowda v. Sannegowda

Case brief

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Marigowda v. Sannegowda

Case brief

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