Partly allowed

Sri K S Chaluvarayi Gowda v. Sri K Javaregowda

Karnataka HC22 Sept 2023RSA/1558/2007

Case brief

AI extract

What is this about?

Held that since no relief was sought against impleaded defendants 5 to 8, the trial court erred in granting permanent injunction against them. Suit decreed against defendants 1-4 and dismissed against 5-8. Respondent's second appeal dismissed.

What did the court decide?

Suit decreed against defendants 1-4 restraining interference; suit against defendants 5-8 dismissed; concurrent judgment modified accordingly.

Sri K S Chaluvarayi Gowda Vs Sri K Javaregowda — Property and Title | Karnataka HC (2023)

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1 - NC: 2023:KHC:34752 RSA No. 1558 of 2007

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND DAY OF SEPTEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR REGULAR SECOND APPEAL NO.1558 OF 2007 (INJ)

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BETWEEN:

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SRI K.S.CHALUVARAYI GOWDA S/O.SRI SINGEGOWDA AGED ABOUT 68 YEARS

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SRI K.C.PRABHAKARA MAJOR

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S/O.K.S.CHALUVARAYI GOWDA

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SRI CHALUVARAJU MAJOR

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S/O.K.S.CHALUVARAYI GOWDA

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SRI DHANANJAYA MAJOR

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S/O.K.S.CHALUVARAYI GOWDA

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Digitally signed by B LAVANYA Location: HIGH COURT OF KARNATAKA

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SMT.HUCHAMMA W/O.LATE JAVAREGOWDA AGED ABOUT 48 YEARS

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SMT.BHAGYAMMA AGED ABOUT 19 YEARS D/O.LATE JAVAREGOWDA

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SMT.RAJAMMA AGED ABOUT 15 YEARS D/O.LATE JAVAREGOWDA

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SRI SINGEGOWDA AGED ABOUT 13 YEARS S/O.LATE JAVAREGOWDA

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A-7 & A-8 ARE MINORS REP. BY THEIR MOTHER SMT.HUCHCHAMMA

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ALL ARE RESIDING AT KADALAGERE VILLAGE MELUKOTE HOBLI PANDAVAPURA TALUK MANDYA DISTRICT - 587 401

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… APPELLANTS

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(BY SRI SATYA FOR SRI K.V.NARASIMHAN, ADVOCATES) AND:

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SRI K.JAVAREGOWDA S/O.SRI HARI JAVAREGOWDANA KEMPEGOWDA AGED ABOUT 51 YEARS AGRICULTURIST R/AT KADALAGERE VILLAGE MELUKOTE HOBLI PANDAVAPURA TALUK MANDYA DISTRICT - 571 401

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…RESPONDENT

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(BY SRI R.A.CHANDRASHEKAR, ADVOCATE)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 09.01.2007 PASSED IN R.A.NO.70/2004 BY THE ADDITIONAL CIVIL JUDGE (SR.DN.), SRIRANGAPATNA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 27.07.2004 PASSED IN OS.NO.153/1999 BY THE CIVIL JUDGE (JR.DN.) & JMFC, PANDAVAPURA AND ETC.

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

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JUDGMENT

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This appeal is preferred by the defendants, being aggrieved by the judgment and decree dated 09.01.2007 passed in RA.No.70/2004 by the Additional Civil Judge (Sr.Dn.), Srirangapatna, whereby the judgment and decree dated 27.07.2004 passed in O.S.No.153/1999 by the Civil Judge (Jr.Dn.) and JMFC, Pandavapura, came to be confirmed.

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Parties shall be referred to as per their status before the trial Court.

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Brief facts of the case are as under:

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It is the case of the plaintiff that the plaintiff is the absolute owner in possession and enjoyment of the suit schedule property bearing Sy.No.5/4 A1-2, which was ancestral property. The plaintiff obtained licence to construct a house for his residence. Subsequently, on 08.03.1996, the Village Panchayat, Jakkanahalli granted licence to the plaintiff to construct a house and thereafter, the plaintiff collected building materials for the purpose of construction of the house in the

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suit schedule property. This being the state of affairs, defendant Nos.1 to 4, who are the neighbours having already

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encroached about 9 feet of the plaintiff's property, were trying to interfere with the plaintiff's peaceful possession and enjoyment of the suit schedule property. Since defendant Nos.1 to 4 were trying to interfere with peaceful possession and enjoyment and in putting up construction by the plaintiff over the suit schedule property, the plaintiff filed a suit against defendant Nos.1 to 4 for the relief of possession and permanent injunction.

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3.1 On service of notice, the defendants appeared and filed their written statement contending that they are in the lawful possession of the suit schedule property and denied the averments of the plaintiff that the plaintiff is the owner of the suit schedule property. It is also contended by the defendants that one Hori Javaregowda owned 0.4 guntas of land in Sy.No.5/4, Kadalagere Village and he had six sons, namely, Kenchegowda, Motegowda, Singegowda, Kalegowda, Kempegowda and Sannegowda. The plaintiff is the son of Late Kempegowda. On the basis of averments made in the written statement, the defendant sought for dismissal of the suit.

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3.2 Based on the pleadings of both the parties, the learned trial Judge framed the following issues for

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consideration:

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"1. Whether plaintiff proves that he is in possession and enjoyment of the suit schedule property?

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2. Whether defendant proves that all the 6 sons of one Horijavaregowda had equal right in sy.No.5/4 measuring 0.4 guntas?

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3. Whether 1st defendant proves that he has purchased the share of Hori Javaregowda to an extent of 10 feet x 69 ft in the suit schedule property and is in possession as pleaded in para-7 of written statement?

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4. Whether the boundaries to the suit schedule are not correct?

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5. Whether the plaintiff is entitled to the reliefs sought?

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6. What order or decree?"

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3.3 On the basis of the pleadings and issues, the plaintiff

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and defendants in order to establish and substantiate their respective cases adduced evidence. Plaintiff examined himself as PW.1 on his behalf and got marked Exs.P1 to P13, whereas

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defendants examined two witnesses as DWs.1 and 2, however,

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did not produce or got marked any documents on their behalf.

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3.4 The trial Court after hearing the learned counsel for the plaintiff as well as learned counsel for the defendants, on the basis of the pleadings, material evidence, both oral and documentary decreed the suit of the plaintiff restraining defendants from interfering with plaintiff's peaceful possession and enjoyment of the suit schedule property.

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3.5 The defendants, being aggrieved by decreetal of suit, preferred an appeal before the first appellate Court, contending that the judgment and decree passed by the trial Court is illegal, arbitrary and perverse and sought for setting aside of the said judgment and decree and to reverse the same.

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3.6 The first Appellate Court after service of notice on the respondent (plaintiff in the suit) and hearing the learned counsel for the plaintiff as well as learned counsel for the defendants formulated following points for consideration:

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"(1) Whether the defendants prove that the trial Court has erred in holding that the plaintiff is

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in lawful possession and enjoyment of the schedule properties as urged in the appeal?

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(2) Whether the defendants prove the framing of additional issues are necessary as stated in I.A.No.2?

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(3) If so, whether they prove the judgment and decree of the trial court is perverse erroneous and if so it calls interference of this court as urged in the appeal?

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(4) What order or decree?"

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3.7 The first appellate Court, on re-appreciation and re-analysation of the entire materials on record, both oral and documentary, did not find merit in the contentions put-forth by the appellant therein i.e. the defendants in the suit and accordingly, dismissed the appeal confirming the judgment and decree passed by the trial Court.

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3.8 Being aggrieved by the concurrent finding of judgment and decree in favour of the plaintiff, the defendants are before this Court in the second appeal.

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Heard learned counsel for appellants-defendants and

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learned counsel for respondent-plaintiff.

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It is the vehement contention of learned counsel for appellants-defendants that the judgment and decree passed by both Courts is opposed to material evidence placed on record and the same is illegal, perverse, arbitrary and contrary to the admissions made by the plaintiff in the cross-examination. It is also contended by learned counsel for defendants that during the pendency of the suit which was filed for declaration and permanent injunction, an application for impleading came to be filed to implead defendant Nos.5 to 8 and at the instance of impleading applicants i.e. defendant Nos.5 to 8, the application was allowed and the written statement of defendant Nos.5 to 8 has not been taken into consideration by the trial Court while delivering the judgment and decree. Therefore, there is an illegality and perversity in the judgment and decree passed by the trial Court. It is also the contention of learned counsel for appellants-defendants that despite several admissions made by PW.1 in the cross-examination, the trial Court and the first Appellate Court have ignored the same and passed the judgment and decree in favour of the plaintiff by granting permanent injunction. It is also contented that pursuant to the impleadment of defendant Nos.5 to 8 in the suit, the plaintiff

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filed a memo dated 27.02.2001 for deletion of the prayer of declaratory relief and restricted his claim only to the relief of permanent injunction. Non-consideration of the written statement filed by defendant Nos.5 to 8 is fatal to the judgment and decree rendered by both Courts. Both Courts ought to have considered the same and passed a reasoned judgment.

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5.1 Learned counsel further contends that the plaintiff has produced exhibits 'P' series by relying on Ex.P1-palupatti to

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show that he is the owner of the suit schedule property. However, the same is not a registered document. Despite the same having been marked, the trial Court ought not have looked into it as it does not have evidentiary value as contemplated under the Indian Evidence Act and the Registration Act. He further contends that the judgment and decree passed by the trial Court is perverse and arbitrary for non-consideration of the material placed on record, both oral and documentary. On these grounds, he seeks to frame the substantial question of law and consequently, to reverse the judgment and decree passed by both Courts.

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5.2 Learned counsel for appellants-defendants, in support

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of his case, has relied on the decision of the Apex Court in the

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case of Anathula Sudhakar v. P.Buchi Reddy reported in (2008)4 SCC 594 .

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Learned counsel for respondent-plaintiff submits that both Courts, on considering the materials placed on record, both oral and documentary elaborately, have passed the judgment and decree and the same does not call for any interference at the hands of this Court. On these grounds, he seeks for dismissal of the appeal.

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6.1 Learned counsel for respondent-plaintiff, in support of his case, has relied on the following decisions:

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i) Anathula Sudhakar v. P.Buchi Reddy, (2008)4 SCC 594;

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ii) Management of State Bank of India vs. V.M.Mahapurush, ILR 1994 KAR 2728.

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Having heard learned counsel for both parties i.e. appellants-defendants and respondent-plaintiff and having given a thoughtful consideration to the materials placed on record, both oral and documentary including the original

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documents available, it is seen that defendant Nos.5 to 8 are the children of one Javaregowda. Therefore, the genealogy of Hori Javaregowda being the original owner of the land and the plaintiff being his grand son and the defendants being the grand children of Motegowda are not in dispute, so also, the ownership of Hori Javaregowda over 0-4 guntas of land in Sy.No.5/4, Kadalagere Village is also not in dispute. Totally, 0- 5 guntas of land was owned by Hori Javaregowda in Sy.No.5/4 of Kadalagere Village, out of which, 0-4 guntas of land came to the share of Kempegowda who is the none other than the father of the plaintiff. Defendant Nos.1 to 4 claimed to have purchased a portion of the property from defendant No.8.

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During pendency of the suit, admittedly, at the instance of defendant Nos.5 to 8, they came on record by themselves in the suit as the suit was filed for the relief of declaration and permanent injunction. Pursuant to the impleadment of defendant Nos.5 to 8, the plaintiff amended the plaint and restricted his claim in the suit for permanent injunction and abandoned the relief of declaration by seeking deletion of the same. Vide order dated 27.02.2001, the said amendment came into force by restricting his claim only for the relief of

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permanent injunction. However, pursuant to the impleadment of defendant Nos.5 to 8, there is no further prayer or amendment to the prayer made by the plaintiff seeking any relief of permanent injunction against defendant Nos.5 to 8.

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The trial court decreed the suit in toto by granting the relief of Permanent Injunction against the defendants. Though initially the suit came to be filed only against defendant Nos.1 to 4 seeking a relief of declaration and Permanent Injunction, pursuant to the impleadment of defendant Nos.5 to 8, no relief is claimed in the prayer as against defendant Nos. 5 to 8. Despite there being no prayer made against defendant Nos.5 to 8 for the relief of Permanent Injunction, the trial Court decreed the suit restraining the defendants permanently from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property. The first appellate Court confirmed the judgment & decree passed by the trial Court.

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At this stage, it is relevant to state that the defendant Nos.5 to 8 themselves got impleaded in the suit on the premise that their rights would be affected in view of the

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prayer of declaratory relief sought in the trial Court as on the date of impleadment of defendant Nos.5 to 8. However subsequent to the impleadment of defendant Nos.5 to 8, the plaintiff by a memo dated 27.2.2001 given up the prayer of declaration and restricted his prayer only for the relief of Permanent Injunction. That being the case, the trial Court ought not to have granted injunction in favour of the plaintiff as against defendant Nos.5 to 8 as no such relief is sought in the suit against the said defendants.

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This Court vide order dated 24.6.2010 framed the following substantial questions of law for consideration in this appeal:

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"1. Whether the Judgment and Decree of both the Courts below are perverse in mis-leading the contents and date of Ex.P1?

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2. Whether the Judgment and Decree of both the Courts below are perverse in non-considering the written statement filed by defendants 5 to 8?"

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As stated by me earlier, the suit initially filed against

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defendant Nos.1 to 4 for the relief of declaration and permanent injunction. Defendant Nos.5 to 8 voluntarily

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themselves got impleaded in the suit on the premise that their rights would be affected in view of the declaratory relief and Permanent Injunction sought against defendant Nos.1 to 4. Pursuant to the impleadment, defendant Nos.5 to 8 filed the written statement which according to the appellants/defendants has not been considered by the trial Court as well as the first appellate Court. In essence, the suit filed by the plaintiff is now only for the relief of Permanent Injunction pursuant to giving up of relief of declaration by filing a memo, which is accepted by the trial Court on 27.2.2001. In view of there being no prayer or relief sought against defendant Nos.5 to 8 and as the relief of declaration has been given up by the plaintiff, non-consideration of the written statement of the defendant Nos.5 to 8 would not be fatal to case of defendant Nos.5 to 8. The trial Court granting the relief of Permanent Injunction as against defendant Nos.5 to 8 is not correct for the simple reason that the suit was filed only against defendant Nos.1 to 4 initially and despite defendant Nos.5 to 8 being impleaded, no relief sought against defendant nos.5 to 8.

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It is the vehement contention of learned counsel for

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the appellants/defendants that the trial Court has committed a

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grave error, illegality and perversity in accepting the contents of Ex.P1/ palupatti , which shows certain shares having been allotted in favour of the plaintiff and defendant Nos.5 to 8 alongwith other children of Hori Javaregowda, on the ground that Ex.P1/ palupatti is required to be mandatorily registered under Section 17 of the Registration Act and having not done, the same could not have been accepted by the trial Court for want of registration and hence it is inadmissible under the Evidence Act.

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Having given my thoughtful consideration to the legal point raised by the counsel for the appellants/defendants, I am of the considered opinion that Ex.P1/ Palupatti is not a deed of partition and it affirms oral partition having taken place between the parties at an earlier point of time and it is not required to be mandatorily registered. Therefore, the contention of the learned counsel that ' palupatti' coming within the documents which are mandatorily required to be registered, cannot be accepted. Nevertheless this is a suit for permanent injunction and the plaintiff is not seeking for any relief of declaration with regard to the title and so also neither the trial

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Court nor the first appellate Court decided the title of the plaintiff for the purpose of granting permanent injunction.

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It is also the vehement contention of learned counsel for the appellants/defendants that since there is a cloud over the title of the plaintiff, the suit for Permanent Injunction would not be maintainable as contemplated by the Hon'ble Apex Court in the case of Anathula Sudhakar -vs- P. Buchi Reddy (Dead) by LRs. and Ors. in Civil Appeal No.6191 of 2001 decided on 25.3.2008. Learned counsel for the appellant/plaintiff controverts the argument advanced by the learned counsel for the respondents/defendants by relying on the same judgment, wherein at paragraph-12 it is held as under:

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"12. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where

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the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title"

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It is needless to mention that in every suit merely

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when the defendant raises a dispute with regard to the plaintiff not having title or so called the cloud over the title of the

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plaintiff, it does not mean that every such suit for permanent injunction requires to be altered to the suit for declaration and Permanent Injunction. My view is fortified by the judgment of the Hon'ble Apex Court in the case of Kayalulla Parambath Moidu Haji -vs- Namboodiyil Vinodan reported in 2021 SCC OnLine SC 675, wherein at paragraph-20 it is held as under:

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It will also be relevant to refer to the following observations of this Court in the case of Jharkhand State Housing Board v. Didar Singh:

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“11. It is well settled by catena of judgments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction.”

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In a suit for Permanent Injunction, essential and fundamental requirement is that the plaintiff will have to come before the Court with clean hands and establish lawful settled possession over the suit schedule property and will have to establish any interference by the defendants with regard to his lawful settled possession over the suit schedule property. The plaintiff has produced Ex.P1 to Ex.P8. The defendants disputed Ex.P1/Palupatti on the ground that the same is not registered in accordance with law. The other documents - Ex.P2 to Ex.P8 are not seriously disputed by the defendants. These are the revenue documents which establish with regard to the possession of the plaintiff over the suit schedule property. So also the plaintiff and defendant Nos.5 to 8 are related and emanating from the same ancestor viz., Hori Javare Gowda, is also not disputed. Therefore if at all defendant Nos.5 to 8 have any grievance with regard to their respective shares or their portions by virtue of the property being ancestral or joint family or the plaintiff having taken extra share, the remedy available to the defendants Nos.5 to 8 is to make redressal in the appropriate forum, in accordance with law. So also defendant Nos.1 to 4 have not made any counter-claim in the written

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statement or in the pleadings and no evidence as such is also placed before the Court. Under the circumstances and in view of the discussion made hereinabove, I do not find sufficient force in the contentions raised by the learned counsel for the appellants/defendants that the trial Court and the first appellate Court have committed gross illegality or perversity in passing the impugned judgment and so also in my opinion, there is no misreading of the contents of Ex.P1/palupatti for being considered in a suit for Permanent Injunction.

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However, this Court is of the opinion that since the plaintiff has not claimed any relief against defendant Nos.5 to 8 in the suit, the trial Court and the first appellate Court have committed an error in decreeing the suit in toto including defendant Nos.5 to 8. It is also not the case of the plaintiff in the pleadings or in the evidence that defendant Nos.5 to 8 are interfering with the peaceful possession and enjoyment over the suit schedule property. Under the circumstances, the judgment and decree of the trial Court, which is confirmed by the first appellate Court, requires to be modified to the limited extent of the judgment and decree in the suit to operate only

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as against defendant Nos.1 to 4 and not against defendant Nos.5 to 8 for the relief of permanent injunction. The substantial questions of law are answered accordingly.

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In view of the discussion made hereinabove, I pass

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the following:

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O R D E R

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(i) The suit is decreed in favour of the plaintiff as against defendant Nos.1 to 4 restraining them permanently from interfering with peaceful possession and enjoyment of the suit schedule property of the plaintiff.

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(ii) As no relief or prayer is sought against defendant Nos.5 to 8, the suit against defendant Nos.5 to 8 is dismissed.

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(iii) The judgment & decree passed by the trial Court, which is confirmed by the first appellate court, is modified to the above extent. Accordingly, appeal is disposed of.

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