Allowed

Mr Ajay Kumar v. Sri P Shashikumar

Karnataka HC17 Feb 2023RSA/1183/2022

Case brief

AI extract

What is this about?

In second appeal against first appellate judgment granting mandatory injunction, High Court set aside lower court order. Bench held Trial Court correctly observed that appellant was a paying tenant rather than licensee, negating remedy. No declaration required.

What did the court decide?

Appeal allowed. Judgment and decree of First Appellate Court set aside. Liberty reserved to plaintiff to approach appropriate forum seeking eviction order.

Mr Ajay Kumar Vs Sri P Shashikumar — Property and Title | Karnataka HC (2023)

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1 - RSA No. 1183 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 17^TH DAY OF FEBRUARY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH

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REGULAR SECOND APPEAL NO. 1183 OF 2022 (INJ)

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BETWEEN:

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MR AJAY KUMAR S/O. LATE NAVARA AGED ABOUT 40 YEARS R/AT NO.1-S-21-1583 WIFELESS COMPOUND NEAR URVA MARKET BOLOOR VILLGE MANGALURU-575 003.

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…APPELLANT

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(BY SRI. RAJASHEKAR S., ADVOCATE)

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AND:

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Digitally signed by SHARANYA T Location: HIGH COURT OF KARNATAKA

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SRI P. SHASHIKUMAR S/O. PUTTASWAMY AGED ABOUT 42 YEARS R/AT NO.856, 31^ST ‘A’ CROSS

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JAYANAGAR, THILAK NAGAR BENGALURU-560 041.

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SMT BHAVANI W/O. LATE SHANKARA AGED ABOUT 70 YEARS R/AT NEAR SHRI DEVI COLLEGE BALLALBAGH MANGLAURU-575 003.

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…RESPONDENTS

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(BY SRI. P.P. HEGDE, SRI. COUNSEL FOR

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SRI VENKATESH SOMAREDDI, ADVOCATE FOR CAVEATOR R1; NOTICE TO R2 IS DISPENSED WITH V/O. ORDER DT.12.09.2022)

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RSA No. 1183 of 2022

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THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 13.07.2022 PASSED IN R.A.NO.133/2020 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MANGALURU, D.K., ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 25.02.2020 PASSED IN O.S. NO.241/2014 ON THE FILE OF THE III ADDITIONAL CIVIL JUDGE AND JMFC, MANGALURU, D.K.

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

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JUDGMENT

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This matter was listed for admission and earlier, the matter was heard in part and today, the matter is listed for reporting settlement since, there was an earlier move between the parties with regard to the settlement is concerned but, no settlement is entered into between the parties and the counsels have argued the matter on merits.

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The factual matrix of the case of the plaintiff before the Trial Court is that, this appellant is in permissive possession of the suit schedule property and though he agreed to quit and vacate the suit schedule property, he did not vacate the same. Hence, he was forced to file a suit for permanent injunction and mandatory injunction. The contents of the plaint is that the schedule property comprised of a house bearing Door No.1-S21-1583 which is shown as schedule ‘B’ property in the plaint.

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RSA No. 1183 of 2022

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The defendant was residing in the schedule ‘B’ premises prior to the execution of sale deed in favour of this plaintiff by way of permissive occupant under his erstwhile owner. During execution of the sale deed in favour of the plaintiff, the defendant had promised him that he would vacate and handover the schedule ‘B’ premises to the plaintiff within four months. Accordingly, the plaintiff had also permitted the defendant No.1 to reside in the schedule ‘B’ premises. As the defendant did not comply with the promise made by him, the plaintiff by revoking the permission which was granted earlier had asked the defendant to vacate the premises which is not been complied with by the defendant No.1 till the date of filing of this suit and though the plaintiff subsequently revoked the permission by issuing legal notice dated 20.01.2014. The defendant has continued to be in possession of the premises which amounts to un-authorized possession and further defendant has also un-authorizedly put up construction in the pavement/roadway abutting to the schedule ‘A’ premises.

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In pursuance of the suit summons, the defendant

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appeared and filed the written statement that there was an agreement of sale in existence in his favour and also he

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RSA No. 1183 of 2022

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questioned the title of the plaintiff. As the defendant had turned hostile towards the plaintiff, the plaintiff has approached this Court.

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The defendant No.1 in his written statement denied that the plaintiff is the owner of the suit schedule property and no sale deed dated 01.10.2012 as stated by the plaintiff in his plaint got registered in favour of the plaintiff and as such, the plaintiff was never put in possession of the plaint schedule property. However, he admits the existence of schedule ‘B’ premises and contend that, he is in possession of the said house. He denied the very averment of the plaint that he is not in permissive possession under erstwhile owner as alleged by the plaintiff and also has denied that there was no correspondent between the plaintiff and the defendant No.1 to the effect that this defendant had agreed to vacate and handover the schedule ‘B’ house premises in favour of the plaintiff within four months. It is also contended that, when there arise no licensor or licensee relationship between the plaintiff and defendant, the question of plaintiff revoking the permission will not arise and he does not have any right to revoke the permission. It is contended that, originally the

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5 - RSA No. 1183 of 2022

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plaint schedule premises belongs to Smt. Bhavani and the same was granted to her by the Government under the provisions of PTCL Act and the alleged sale deed executed by said Bhavani in favour of the plaintiff without obtaining permission from the competent authority is bad in law and the same will not convey any right. It is also contended that, he had entered into agreement of sale with erstwhile owner on 17.05.2011 by paying entire sale consideration amount and she could not obtain the required permission from the concerned authority to transfer the schedule property in favour of this defendant. Hence, he could not get the sale deed registered in his favour. It is also his case that the said erstwhile owner also had executed power of attorney on 31.05.2011 and also a registered Will on 31.05.2011 in his favour. By virtue of the agreement of sale, he is in possession of the property and defendant is in actual possession of the same and the same is also an irrevocable one. It is also contended that Bhavani had no valid right to execute the sale deed in favour of the plaintiff. The defendant No.1 also took the defence that Court fee paid is insufficient and there is no jurisdiction to file the suit for the relief of mandatory injunction. It is contended that bare

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RSA No. 1183 of 2022

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injunction suit is not maintainable without seeking an order of declaration.

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Based on the pleadings of the parties, the plaintiff examined himself as P.W.1 and got marked the documents as Exs.P1 to P6. On the other hand, the defendants got examined the general power of attorney holder as D.W.1 and got marked the documents as Exs.D1 to D4.

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The Trial Court, after considering both oral and documentary evidence placed on record, answered all the issues as ‘negative’, in coming to the conclusion that the plaintiff is not the owner of the suit schedule property and comes to the conclusion that the defendant No.1 is not in permissive possession of the suit schedule property and the plaintiff is not entitled for the relief of possession of ‘B’ schedule property and also not entitled for prohibitory injunction with regard to ‘A’ schedule property and also not proved the interference made by the defendant No.1 in peaceful possession and enjoyment of the plaint ‘A’ schedule property of the plaintiff.

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Being aggrieved by the judgment and decree of the

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dismissal of the suit, an appeal is filed before the First

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RSA No. 1183 of 2022

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Appellate Court in R.A.No.133/2020, wherein the grounds urged by the plaintiff before the First Appellate Court is that the very approach of the Trial Court is erroneous and the Trial Court has failed to understand the principles of mandatory injunction and the findings of the Trial Court on the issues are opposed to the evidence. It is also contended that the Trial Court has committed serious illegalities by dismissing the suit of the plaintiff, in coming to the conclusion that there is prohibition under the PTCL Act and the same has resulted in miscarriage of justice.

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Based on the grounds urged in the appeal, the First Appellate Court also, formulated the points whether the plaintiff has proved that defendant No.1 is in permissive occupation of the suit ‘B’ schedule property and it is lawfully terminated, whether the plaintiff proves the alleged interference of the first defendant in his peaceful possession and enjoyment of the suit ‘A’ schedule property and whether the judgment and decree of the Trial Court requires interference.

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The First Appellate Court, on re-appreciation of both oral and documentary evidence placed on record, answered all the points as ‘affirmative’, in coming to the conclusion that the

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8 - RSA No. 1183 of 2022

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plaintiff has proved that the defendant No.1 is in permissive possession of the premises and his possession is also terminated by issuing legal notice and also comes to the conclusion that, in respect of ‘A’ schedule property, there was interference by the defendant No.1 and the Trial Court also committed an error in not appreciating both oral and documentary evidence placed on record and also extracted Sections 4 and 5 of the Karnataka Schedule Castes and Schedule Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 and Rules 1979 (‘the Act’ for short) and extracting the same, the First Appellate Court comes to the conclusion that the provisions of Sections 4 and 5 of the Act attracts to the case on hand and the transaction between the parties is erroneous and set aside the judgment of the Trial Court and allowed the appeal, granting the relief of mandatory injunction directing the defendant to vacate and handover vacant possession of the schedule ‘B’ premises to the plaintiff within one month and also granted prohibitory injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the plaint ‘A’ schedule property.

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RSA No. 1183 of 2022

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Being aggrieved by the judgment and decree of the First Appellate Court, the learned counsel appearing for the appellant would vehemently contend that there was a sale agreement and power of attorney in his favour and the suit is filed for the relief of mandatory injunction and though the suit is filed for the relief of mandatory injunction, the same is not maintainable, since the Court fee is not paid and the Trial Court also not framed any issue with regard to the Court fee is concerned and not framed any issue with regard to the jurisdiction of the Court to entertain the suit. The counsel would vehemently contend that, unless the relief of declaration is sought, when the title is disputed, the First Appellate Court ought not to have granted the relief of mandatory injunction and nothing is discussed in the appeal with regard to the jurisdiction and payment of Court fee. The counsel also would vehemently contend that the sale consideration mentioned in the sale deed is Rs.5 lakhs and however, in the evidence, it is admitted that he has paid the amount of Rs.20 lakhs and the same is contrary to the material available on record. The counsel also would submit that, when the Court is not having jurisdiction to entertain the suit, ought not to have entertained the suit and ought to have rejected the plaint.

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RSA No. 1183 of 2022

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In support of his argument, the learned counsel for the appellant also relied upon the order of this Court passed in W.P.NO.50983 OF 2015 dated 05.01.2021 and brought to notice of this Court, Para No.7 with regard to the issue involved between the parties whether the plaintiff proves that she is joint owner of the plaint schedule property along with other legal heirs of Late Thomas Velgas as alleged in the plaint. The Court given the finding that the finding recorded by the Trial Court that the plaintiff has correctly valued the suit schedule property with regard to the relief No.1 of mandatory injunction under Section 26(c) of the Karnataka Court Fee and Suit Valuation Act, 1958 is erroneous and the plaintiffs are liable to value the suit under Section 26(a) of the Act, particularly when there is a issue with regard to plaintiffs’ title over the suit schedule property within the meaning of Section 26(a)(ii) of the Act. Hence, the counsel would vehemently contend that the order is aptly applicable to the case on hand.

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The counsel also relied upon the order of this Court in PUSHPA SHIVAPRASAD VS. C.G. SAROJAMMA AND

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OTHERS reported in ILR 2002 KAR 3512 , wherein this Court has held that, in a suit for injunction where the defendant

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RSA No. 1183 of 2022

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disputes the title of plaintiff, Fee shall have to be computed advalorem on the half of the market value of the subject matter of the suit or Rs.10,000/- whichever is higher.

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Per contra, learned counsel appearing for the respondent No.1-plaintiff would vehemently contend that the very contention of the learned counsel for the appellant cannot be accepted. The counsel would vehemently contend that, when the sale deed was executed in favour of the plaintiff, this appellant was signatory to the said sale deed and hence, he cannot blow hot and cold denying the title and since, he has denied the title in the written statement, the question of payment of Court fee does not arise as contended by the learned counsel for the appellant.

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The learned counsel for the respondent No.1plaintiff also relied upon the judgment of the Apex Court in BHARAT BHUSHAN GUPTA VS. PRATAP NARAIN VERMA

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AND ANOTHER reported in ( 2022) 8 SCC 333, wherein the Apex Court also, regarding valuation of Court fees, held that essential basis is the nature of relief claimed, the suit is for prohibitory and mandatory injunction, the relevance of market value of property, market value of immovable property involved

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RSA No. 1183 of 2022

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in litigation might have its relevance depending on nature of relief claimed but, ultimately, valuation of any particular suit has to be decided primarily with reference to the relief/reliefs claimed, it remains trite that it is nature of relief claimed in plaint which is decisive of question of suit valuation as a necessary corollary, market value does not become decisive of suit valuation merely because an immovable property is subject matter of litigation. The Apex Court also held that, suit for mandatory injunction and prohibitory injunction is not required to be valued at market value of property. Thus, provisions of Section 7(vi)(d) of the 1870 Act would not be applicable.

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The counsel also, in his argument relied upon the judgment of the Apex Court in ANATHULA SUDHAKAR VS. P. BUCHI REDDY (DEAD) BY LRS. AND OTHERS reported in (2008) 4 SCC 594 . The counsel would vehemently contend that, in this judgment also, the Apex Court with regard to filing of the suit for the relief of declaration held that, when there is a cloud on the title, then the parties have to file a comprehensive suit seeking the relief of declaration. The counsel would vehemently contend that, in the case on hand, though the defendant No.1 claims that he was having sale agreement prior

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RSA No. 1183 of 2022

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to the registration of the sale deed in favour of the plaintiff, but he himself is a party to the sale deed executed by the erstwhile owner in favour of the plaintiff and once, he is a party to the said document and signed the same, now he cannot deny the very title. Hence, the very contention of the learned counsel for the appellant cannot be accepted.

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The learned counsel appearing for the respondent No.1-plaintiff also relied upon the judgment of the Apex Court

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in MUDDASANI VENKATA NARSAIAH (DEAD) THROUGH LEGAL REPRESENTATIVES VS. MUDDASANI SAROJANA reported in (2016) 12 SCC 288 , wherein the Apex Court held that, suit for possession of immovable property can be filed without prayer for declaration of title where there is no serious cloud over the title and there is no need to seek the relief of declaration, while seeking the relief of possession. The counsel also vehemently contend that the suit is filed for possession based on the permissive possession and the appellant was in permissive possession with the erstwhile owner and continued the possession subsequent to the purchase made by the respondent No.1-plaintiff.

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RSA No. 1183 of 2022

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With regard to the jurisdiction is concerned, the counsel also relied upon the judgment of the Apex Court in SANT LAL JAIN VS. AVTAR SINGH reported in (1985) 2 SCC 332 and brought to notice of this Court the principles laid down in the judgment as also Para No.7 of the judgment, wherein the Apex Court held that, even if there was some delay, we think that in a case of this kind attempt should be made to avoid multiplicity of suits and the licensor should not be driven to file another round of suit with all the attendant delay, trouble and expense. The suit is in effect one for possession though couched in the form of a suit for mandatory injunction as what would be given to the plaintiff in case he succeeds is possession of the property to which he may be found to be entitled. The counsel referring this judgment would submit that, this Court can mould the relief, even though suit is filed for mandatory injunction and in view of the admission given by the P.W.1 in the cross-examination, the very same Court is having jurisdiction to order for possession and hence, the First Appellate Court has not committed any error in passing an order of mandatory injunction and also granting the consequential relief of prohibitory injunction in respect of plaint

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RSA No. 1183 of 2022

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‘A’ schedule property. Hence, there is no merit in the second appeal.

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Having heard the respective counsel and also on perusal of the material available on record, it is not in dispute that plaintiff has sought for the relief of mandatory injunction against the appellant on the ground that the appellant is in permissive possession earlier to the purchase of property from the erstwhile owner and also continued the possession with a promise that he would vacate the premises within four months. No doubt, the defendant No.1 appeared and filed the written statement denying the very title of the plaintiff, it also contended that the Court fee paid is insufficient and ought to have sought for the relief of declaration. It is his contention that Court was not having jurisdiction to entertain the suit for mandatory injunction. It is not in dispute that this appellant is in possession of suit schedule ‘B’ property. The appellant does not dispute the fact that he was in possession and he took possession from the erstwhile owner. It is also his contention that there was sale agreement in his favour and consequent upon the same, power of attorney and Will was also executed in his favour.

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RSA No. 1183 of 2022

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It has to be noted that, this appellant was signatory to the sale deed executed in favour of the plaintiff and sale deed came into existence in the year 2012 and according to the appellant, the document of sale agreement was executed in the year 2011 and power of attorney was also executed and when he was having the sale agreement, power of attorney and also a Will, what made him to become the signatory to the sale deed, no explanation on the part of the appellant before this Court.

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It is also important to note that he disputes the title and when he himself is signatory to the document of title executed in favour of the plaintiff and when, he did not deny that he had put the signature on the document of Ex.P6, he cannot deny the very title and the suit filed before the Trial Court is only for mandatory injunction as well as prohibitory injunction in respect of ‘A’ schedule property which is also a part of the sale deed. When such material is available before the Court, merely because the defendant No.1 took the defence in the written statement, denying the title, the same cannot be

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a ground to seek for an order of declaration and the Apex Court, in the judgment referred (supra) by the learned counsel

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RSA No. 1183 of 2022

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for respondent No.1, held that, in a suit filed for the relief of mandatory injunction and prohibitory injunction, there is no need to seek for the relief of declaration and the same is applicable to the case on hand.

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The other contention of the learned counsel appearing for the appellant is that, Court fee paid is not sufficient and ought to have paid the Court fee seeking the relief of declaration and the said contention cannot be accepted, in view of the judgment of the Apex Court in BHARAT BHUSHAN GUPTA’s case reported in (2022) 8 SCC 333, wherein the Apex Court with regard to the payment of Court fee held that, suit for mandatory and prohibitory injunction is not required to be valued at market value of the property. Hence, the other contention of the learned counsel for the appellant with regard to Court fee cannot be accepted.

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Now, the question is with regard to the jurisdiction. It has to be noted that the plaintiff has sought for the relief of mandatory injunction, wherein he has contended that he had assured to vacate the premises within four months when the sale deed was executed between the erstwhile owner and the plaintiff and he did not vacate the premises as assured. Hence,

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RSA No. 1183 of 2022

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notice was given and thereafter, suit was filed. The Trial Court, having taken note of the answers elicited from the mouth of the witnesses, particularly, P.W.1 in Para No.24, while answering issue No.2 with regard to whether the plaintiff proves that defendant No.1 is in permissive possession of the suit schedule property, extracted the answer given by P.W.1, wherein, he categorically admitted that the defendant, defendant’s elder sister and Bhavani were residing and in the further crossexamination, admitted that the defendant, defendant’s elder sister and Bhavani were also residing and other sisters have not been made as parties because the defendant No.1 has continued the possession as tenant. Hence, she was only made as party to the proceedings. It is also elicited that, he was paying a rent of Rs.1,500/- per month and he used to pay the rent by way of cash and he had paid the rent for a period of six months, after purchase of the suit schedule property.

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Having considered this admission, the Trial Court

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comes to the conclusion that he is not in permissive possession. When the P.W.1 though claims that he is in permissive possession, in the cross-examination, admitted that he was a tenant and had paid rent of Rs.1,500/- per month for a period

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19 - RSA No. 1183 of 2022

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of six months. Hence, the question of seeking the relief of mandatory injunction does not arise. No doubt, learned counsel appearing for the respondent No.1 brought to notice of this Court the principles laid down by the Apex Court in SANT

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LAL’s case , wherein in Para No.7 of the judgment, an observation is made that, even if there was some delay, we think that in a case of this kind attempt should be made to avoid multiplicity of suits and the licensor should not be driven to file another round of suit with all the attendant delay, trouble and expense. The suit is in effect one for possession though couched in the form of a suit for mandatory injunction as what would be given to the plaintiff in case he succeeds is possession of the property to which he may be found to be entitled, however, the Court has to take note of the principles laid down in the judgment and also the facts and circumstances of each case. The Apex Court, in Para No.8 of the judgment comes to the conclusion that the respondent was a licensee, and he must be deemed to be always a licensee. It is not open to him, during the subsistence of the license or in the suit for recovery of possession of the property instituted after the revocation of the license to set up title to the property in himself or anyone else.

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RSA No. 1183 of 2022

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In the case hand on hand, specific admission is given by P.W.1 that he was a tenant and he continued as a tenant and paid the rent of Rs.1,500/- per month for a period of six months, after purchasing the property. It is the very contention of the learned counsel for the respondent No.1 that Court also can mould the relief, taking note of the fact that suit is filed before the Court having jurisdiction to pass an order of eviction and the said submission cannot be accepted and the Court has to take note of the material available on record and also admission given by the P.W.1 in the cross-examination and when such admission was given and the Trial Court has come to the conclusion that, he is not in permissive possession and extracted the answers elicited from the mouth of P.W.2. The First Appellate Court also, on re-appreciation of both oral and documentary evidence placed on record, while answering point No.1, comes to an erroneous conclusion that the plaintiff has proved that defendant No.1 is in permissive occupation of the suit schedule ‘B’ property, ignoring the answers elicited from the mouth of P.W.1. Hence, the First Appellate Court committed an error in answering point No.1 as ‘affirmative’, in coming to the conclusion that the appellant-defendant No.1 is in permissive possession.

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RSA No. 1183 of 2022

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Having considered the material on record, I am of the opinion that the First Appellate Court committed an error in coming to the conclusion that defendant No.1 is in permission possession and hence, the relief of mandatory injunction can be granted. When the admission is given by P.W.1 in unequivocal terms that he is a tenant and he continued as a tenant and paid the rent of Rs.1,500/- for a period of six months, after purchasing of property from erstwhile owner, the question of seeking the relief of mandatory injunction does not arise. Hence, I am of the opinion that the judgment and decree of the First Appellate Court requires to be interfered with and the same has to be set aside reserving liberty to the plaintiff to approach the appropriate forum seeking the relief of eviction against the appellant-defendant No.1 herein.

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The appellant, though claims that he was having sale agreement, power of attorney and Will, based on those documents, he has not pursued any relief before any Court of law. This Court also, while considering the material on record, has made an observation that he was a signatory to the document of sale deed executed in favour of the plaintiff subsequent to the alleged sale agreement executed in his

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RSA No. 1183 of 2022

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favour and hence, he cannot raise the very same defence before the Court, when an order of eviction is sought before the jurisdictional Court.

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In view of the discussions made above, I pass the

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following:

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ORDER

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(i) The appeal is allowed.

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(ii) The judgment and decree of the First Appellate Court passed in R.A.No.133/2020 dated 13.07.2022 on the file of the I Additional Senior Civil Judge and CJM, Mangaluru, D.K., is set aside, reserving liberty to the plaintiff to approach an appropriate forum seeking for an order of eviction against the defendant No.1.

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Sd/JUDGE

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ST List No.: 1 Sl No.: 50

Mr Ajay Kumar v. Sri P Shashikumar

Case brief

What is this about?

What did the court decide?

Mr Ajay Kumar v. Sri P Shashikumar

Case brief

What is this about?

What did the court decide?

What the court decided

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