Allowed

Sri Narayanaswamy S/O Mallarahalli Hanumappa v. Jayamma W/O Late Thippaiah

Karnataka HC14 Jul 2023RSA/2507/2007

Case brief

AI extract

What is this about?

In a second appeal regarding a suit for permanent injunction over a vacant site, the High Court set aside the lower courts' decree. It held that where a cloud exists on the title and possession is purely de jure, the remedy is a suit for declaration, not a mere injunction.

What did the court decide?

J udgments and decrees of lower courts set aside; suit by plaintiff dismissed; plaintiff allowed to file a comprehensive suit for declaration of title.

Sri Narayanaswamy S/O Mallarahalli Hanumappa Vs Jayamma… — Property and Title | Karnataka HC (2023)

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NC: 2023:KHC:24652 RSA No. 2507 of 2007

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 14^TH DAY OF JULY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR REGULAR SECOND APPEAL NO. 2507 OF 2007 (INJ)

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BETWEEN:

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SRI. NARAYANASWAMY S/O MALLARAHALLI HANUMAPPA AGED ABOUT 28 YEARS R/O MINASUNDAR VILLAGE JAYAMANGALA POST MALUR TALUK, KOLAR DISTRICT-586160

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…APPELLANT

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(BY SRI.R.S.PRASANNA KUMAR., ADVOCATE-PH)

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Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA

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AND:

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JAYAMMA W/O LATE THIPPAIAH AGED ABOUT 42 YEARS R/O MINASUNDAR VILLAGE JAYAMANGALA POST MALUR TALUK, KOLAR DISTRICT-586160

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…RESPONDENT

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(BY SRI. B.VIJAYA SHETTY., ADVOCATE-PH)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGEMENT AND DECREE DATED 30.06.2007 PASSED IN RA.O.172/2006 ON THE FILE OF THE PRL. CIVIL JUDGE (SR.DN.) AND CJM., KOLAR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED 01.04.2006 PASSED IN OS.NO.308/2000 ON THE FILE OF THE PRL.CIVIL JUDGE (JR.DN.) MALUR, DECREEING THE SUIT FOR PERMANENT INJUNCTION.

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THIS RSA, COMING ON FOR DICTATING JUDGMENT, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed praying to set aside

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judgment and decree dated 30.6.2007 passed in RA No.172/2006 by Principal Civil Judge (Sr.Dn.) & CJM, Kolar and judgment and decree dated 1.4.2006 passed in OS No.308/2000 by Principal Civil Judge (Jr.Dn.), Malur and to dismiss the said suit.

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The parties are referred to as per their rankings

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in the trial Court.

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The appellant was defendant and respondent was plaintiff before the trial Court in OS No.308/2000.

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The plaintiff had filed the suit seeking the relief of perpetual injunction against the defendants restraining him from interfering with her possession over the suit schedule property. The suit schedule property is a vacant site bearing No.97/114 measuring east-west 25 feet and north-south 45 feet having boundaries to east by vacant place of government, west by road, north by the

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government road, south by plaintiff's house. The said property is stated to be situated at Minasandara Village coming under Jayamangala Grama Panchayath of Malur taluk.

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It is the case of the plaintiff before the Trial

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Court that she is in possession of the suit property and considering her long possession Pradhan of the mandal panchayat granted the suit property to her. The suit property is a vacant site and it is situated beside the house of the plaintiff and she in actual possession over the suit schedule property and katha is standing in her name and she is praying tax regularly. It is stated that the defendant is a stranger to the suit schedule property and illegally tried to interfere with possession of the plaintiff with this suit came to filed for the relief of injunction.

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The defendant in his written statement has denied allegations made in the plaint. The defendant contended that the document produced by the plaintiff are concocted and created documents. The defendant is the

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owner of the property bearing katha No.107 measuring

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east-west 30 feet and north-south 45 feet and it is standing in his name and he is paying property tax. It is further stated that the defendant’s grandfather was in the possession of the suit property and thereafter the defendant’s father was in the possession of the suit property. After demise of his father, the defendant succeeded the suit schedule property and he has constructed varanda and remaining portion is vacant site. Adjacent to the suit property, the property of the defendant is situated. The suit filed by the plaintiff is frivolous with an intention to grab the suit property. It is stated that the defendant has filed a suit in OS No.225/2001 against the plaintiff and it is pending. It is further stated that defendant has preferred an appeal before the Taluk Panchayath Committee for illegal change of katha in favour of plaintiff and it is pending. With this he prayed for dismissal of the suit.

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Based on the said pleadings, the trial Court has framed the following issues:-

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1. Whether the plaintiff proves that the suit schedule property granted to her and plaintiff is in possession of the same?

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2. Whether the plaintiff proves the alleged interference by the defendant over the suit schedule?

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3. Whether the defendant proves that, he is having katha no.107 measuring East-West 30 feet and North-South 45 feet property consisting of old residential house, veranda and vacant land and plaintiff’s property is situated towards South of defendant’s property?

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4. Whether the plaintiff is entitled for the reliefs prayed?

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5. What Order or Decree?

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The plaintiff examined herself as PW1 and

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examined one witness as PW2 and got marked as Ex.P1 to P9. The defendant No.1 examined himself as DW1 and examined two witnesses has DW2 and DW3 and got marked Ex.D1 to Ex.D11. The Trial Court after hearing the arguments and appreciating the evidence answered issues No.1, 2 and 4 in the affirmative and issue No.3 in the negative and decreed the suit.

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Aggrieved by the said judgment and decree of

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the trial Court, the defendant has filed an appeal in RA No.172/2006 on the file of Prl. Civil Judge (Sr.Dn) & C.J.M., Kolar (First Appellate Court). The First Appellate Court after hearing arguments has formulated the following points for consideration;

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1. Whether the Judgement and Decree under appeal are perverse and arbitrary?

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2. Whether the defendant has been in possession of the suit schedule property since more than 5 decades as contended in his Written Statement?

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3. Whether the interference is called for by this Court in the findings of the Trial Court?

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4. What Order?

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The First Appellate Court after re-appreciating the evidence on record has answered points No.1 to 3 in the affirmative and dismissed the appeal. The defendant challenging that the judgment and decree passed by both Courts has filed this second appeal. This second appeal came to be admitted to consider the following substantial questions of law:

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i. Whether the judgements of the Courts below decreeing the suit filed by the respondent/plaintiff for permanent injunction without recording a finding as to the title of the plaintiff in respect of the suit schedule property which is the vacant site, that too when the title of the plaintiff is denied, is contrary to the law laid down by the Apex Court in Nagar Palika, Jind Vs. Jagat Singh, Advocate [(1995)3 SCC 426] and Anathula Sundhakar Vs. P.Buchi Reddy [(2008) 4 SCC 594]?

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ii. Whether the finding of the Courts below that the respondent/plaintiff is in possession of the property is perverse in view of failure on the part of the plaintiff to prove her title to the property?

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iii. Whether the Courts below are right in granting permanent injunction in favour of the respondent/plaintiff in respect of the vacant site without the plaintiff proving her title in respect of the said property?

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Heard the argument of learned counsel for

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appellant and learned counsel for the respondents.

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The learned counsel for the appellant has argued that even though the property claimed by the

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plaintiff and defendant bears different numbers but they are claiming same portion of property situated adjacent to their property. The defendant claims that the property situated on Eastern side of his house property is the suit property and it bears khata No.107/55 measuring eastwest 30 feet and north-south 45 feet and the same is standing in his name in Panchyath records. The plaintiff is also claiming the same portion of property stating that it bears khata No.97/114 measuring east-west 25 feet, north-south-45 feet. It is further argued that both the plaintiff and defendant claim possession over the said property even though the khata numbers are different. He further argued that Ex.D8 is extract of MR. No.31/495, in respect of his property bearing khata No.107/55 and measurement is mentioned in the same is east-west 30 feet, north-south 45 feet and considering the boundaries mentioned in it and the property claimed by the defendant is situated on eastern side of his house and based on the said mutation, the name of the defendant is entered in the Tax Demand Register.

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It is further submits that, the documents produced by the defendants creates cloud on the title of the plaintiff. Therefore, in view of two decisions of Hon'ble Apex court reported in 1995 (3) SCC 426 between Nagar Palika v. Jagat Singh and 2008 (4) SCC 594 between Anathula Sudhakar v. P. Buchi Reddy, the plaintiff has to file a suit for declaration as cloud has been created on the title of the plaintiff over the suit schedule property. On that point also he relies on two unreported judgment of Hon’ble Apex Court. He further argued that the tax paid receipts produced by the defendant in Ex.P4

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and Ex.P5 establishes his possession over the suit schedule properties. He further argued that the issue No.2 as framed by the trial Court is not in accordance with the defence taken up by the defendant. He further argued that the Trial Court and the First Appellate Court have not appreciated and re-appreciated the evidence on record properly and erred in holding that plaintiff is in possession of the suit schedule property.

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Learned counsel for respondent argued that the Ex.P1 to Ex.P3-extract of T ax Demand Register, Ex.P4 and

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Ex.P5-tax paid receipts and Ex.P6-house licence establishes the title of the plaintiff over the suit schedule property and her possession over it. He further argued that the defendant has filed a suit in OS No.225/2001 seeking declaration and injunction, he has withdrawn it unconditionally. The order sheet and memo are at Ex.P8 and Ex.P9. The defendant claimed different property bearing khata No.107/55 and the property claimed by the plaintiff is bearing khata No.97/114 and therefore the defence of the defendant does not create a cloud over the title of the plaintiff.

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The DW1 in his cross examination has admitted that khata No.97/114 stands in the name of the plaintiff. Therefore, the defendant is in no way concerned to the Katha No.97/114. The trial Court and the First Appellate Court after appreciating the evidence on record have rightly decreed the suit of the plaintiff.

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As per the case of the plaintiff, the suit schedule property bears katha No.97/114 measuring eastWest 25 feet and North-South 45 feet. The plaintiff claims title over the said property by virtue of three extract of Tax Demand Register i.e., Ex.P1 to Ex.P3 to establish her title over the suit schedule property. On perusal of all the three documents i.e., Ex.P1 to Ex.P3 they does not contain measurement and boundaries of that property. Even the extend of the property is not shown in Ex.P1 to Ex.P3.

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Ex.P6 is the house licence in the name of plaintiff dated 08.11.1991 in respect of property bearing katha No.97/114 wherein the measurement and boundaries are mentioned. What is the basis for mentioning of the measurement and boundaries in the said Ex.P6 is not explained by the plaintiff and it is not forthcoming from the evidence on record. Even the plaintiff has not constructed any building by virtue of the said house licence (Ex.P.6), on the property bearing katha

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No.97/114. The defendant has produced extract of MR No.31/94-95 at Ex.D.8. As per the said mutation, the name of defendant has been mutated to katha No.107/55 to the extent of property measuring East-West 30 feet, North-South 45 feet having boundaries to east open site, to west house of Hanumanthappa, to North- Government road and to south - house of the Muniswamy.

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Learned counsel for appellant argued that the

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said house of Muniswamy stated to situate on southern side, is the house property wherein the plaintiff is residing. Even in Ex.P6-House licence, house of one Muniswamy stated to situated on southern side of katha No.97/114. In both the Ex.P6 and Ex.P8-government road is situated on the southern side. In the description of the suit schedule property as contained in the plaint, the house of the plaintiff is situated on southern side of katha No.97/114. The plaintiff claimed that the property measures East -West 25 feet and North-South 45, feet stating that 5 feet passage is situated on western side of

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the property. The defendant contended that his property bearing katha No.107/55 is measuring East-West 30 feet and North-South 45 feet. Considering all these above aspects, it is clear that both plaintiff and defendant are claiming same portion of property under the different katha numbers. As the defendant has claimed title over

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the suit property by virtue of Ex.P8 and extract of Tax Demand Register (Ex.D2), the cloud has been created over the plaintiff’s title over the suit schedule property. The suit schedule property is a vacant site. When a cloud has been created on the title of the plaintiff over the suit schedule property, the parties ought to have been relegated to file a comprehensive suit seeking declaration as held by Hon’ble Apex Court in the case 2008 (4) SCC 594 between Anathula Sudhakar v. P. Buchi Reddy , wherein it is held as under:

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16. But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be

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NC: 2023:KHC:24652 RSA No. 2507 of 2007

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considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was at issue, the court should not decide the issue of title in a suit for injunction. The proper course is to relegate the plaintiff to the remedy of a full-fledged suit for declaration and consequential reliefs.

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The Hon’ble Apex Court in the said case summaries the position in regard to suit for prohibitory injunction relating to the immovable property as under:

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21. To summarise, 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 the 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 the 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 [Annaimuthu Thevar v. Alagammal, (2005) 6 SCC 202] ). Where the averments regarding title are absent in a plaint and where there is no issue

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

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The said decision of the Hon’ble Apex Court has been referred to and followed in the other two decision relied upon by the learned counsel for the appellant i.e., Jharkhand State Housing Board vs Shri Didar Singh in Civil Appeal No.8241/2019 and T.V. RAMAKRISHNA REDDY vs. M. MALLAPPA & ANR. in Civil Appeal No.5577/2021.

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The defendant had filed suit for declaration against the plaintiff in OS No.225/2001 and he as withdrawn unconditionally by filing a memo. Ex.P.8 is the order sheet and Ex.P.9 is the said memo. Merely because the said suit filed by the defendant seeking declaration has been withdrawn does not amount to defendants admission of plaintiff title over the suit schedule suit property. Even though DW 1 in his cross examination was admitted, that katha of the plaintiff’s property is 97/114 but he has stated that the said property is not in existence. Even the Mahazar (Ex.D.10) prepared by the Chairman of Telamangala Gramapanchayath singed by the three

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witnesses and the plaintiff stating that the property of the defendant bearing katha No.107/55 measures east-west 30 feet and north-south 40 feet and property of plaintiff bears katha No.97/114 measuring east-west 18 feet and north-south 20 feet also creates clouds over the title of the plaintiff. The said resolution has also been challenged by the defendant by filing appeal before the Executive officer, Taluka Panchayath, Malur. The appeal memo is at Ex.P.7. As the cloud has been created over the title, the Courts below ought to have relegated the plaintiff to file a comprehensive suit seeking relief of declaration and other reliefs. Therefore, both the Court erred in holding that the plaintiff is in possession of the suit schedule property without proof of title and decreeing the suit for injunction.

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In view of the above the three substantial

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questions of law are answered accordingly.

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In the result, the following:

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ORDER

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i. The appeal is allowed .

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ii. The Judgment and decree passed by the trial Court in OS No.308/2000 dated 01.04.2006 and by the First Appellate Court in R.A. No.172/2006 dated 30.06.2007, are set aside and the suit filed in OS No.308/2000 by the plaintiff is dismissed.

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iii. Plaintiff is at liberty to file a comprehensive suit seeking declaration of title to the suit schedule property.

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Sd/JUDGE

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SR/VK

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List No.: 1 Sl No.: 17

Sri Narayanaswamy S/O Mallarahalli Hanumappa v. Jayamma W/O Late Thippaiah

Case brief

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Sri Narayanaswamy S/O Mallarahalli Hanumappa v. Jayamma W/O Late Thippaiah

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