Allowed

Smt Gowramma W/O Late Kuntaiah v. Sri Kullaiah S/O Late Amavase @ Amase

Karnataka HC8 Dec 2023RSA/476/2013

Case brief

AI extract

What is this about?

This regular second appeal challenged lower court decrees granting an injunction in a property dispute involving boundaries between adjacent lands. The High Court held the injunction suit was not maintainable as there was a dispute on both title and identity of the property, requiring a comprehensive suit for declaration first.

What did the court decide?

Judgment and decree of trial court and first appellate court set aside; suit dismissed; liberty reserved to file comprehensive suit.

Smt Gowramma W/O Late Kuntaiah Vs Sri Kullaiah S/O Late… — Property and Title | Karnataka HC (2023)

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1 - NC: 2023:KHC:44520 RSA No. 476 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE ASHOK S.KINAGI

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REGULAR SECOND APPEAL NO. 476 OF 2013 (INJ)

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BETWEEN:

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SMT GOWRAMMA W/O LATE KUNTAIAH AGED ABOUT 52 YEARS

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KUM BHAGYA D/O LATE KUNTAIAH AGED ABOUT 32 YEARS

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SRI H.K. SHIVALINGA S/O LATE KUNTAIAH AGED ABOUT 29 YEARS

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Digitally signed by R DEEPA Location: High Court of Karnataka

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SMT SHASHIKALA D/O LATE KUNTAIAH AGED ABOUT 27 YEARS

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ALL ARE R/AT BEGUR VILLAGE, KASABA HOBLI MUTTUR POST, PERIYAPATNA TALUK MYSORE DISTRICT 572 106

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…APPELLANTS

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(BY SRI. S VENKATESH SHASTRY, ADVOCATE)

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AND:

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SRI KULLAIAH S/O LATE AMAVASE @ AMASE AGED ABOUT 52 YEARS

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NC: 2023:KHC:44520 RSA No. 476 of 2013

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R/AT MUTTUR VILLAGE AND POST OF KASABA HOBLI PERIYAPATNA TALUK MYSORE DISTRICT 572 106

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SMT JAYA D/O LATE AMAVASE @ AMASE AGED ABOUT 42 YEARS R/AT DODDAHARAVE VILLAGE, HARNAHALLI HOBLI PERIYAPATNA MYSORE 572 106

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…RESPONDENTS

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(BY SRI. B ROOPESH FOR, ADVOCATE FOR R1 R2 SERVED)

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THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 9.1.2013 PASSED IN R.A.NO.29/2011 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, HUNSUR, SITTING AT PERIYAPATNA, DISMISSING THE APPEAL AND UPHOLDING AND CONFIRMING THE JUDGEMENT AND DECREE DTD 5.4.2011 PASSED IN OS.NO.106/2003 ON THE FILE OF CIVIL JUDGE AND JMFC, PERIYAPATNA.

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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 second appeal is filed by the appellants

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challenging the judgment and decree dated 09.01.2013, passed in R.A.No.29/2011 by the Additional Senior Civil

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Judge and JMFC, Hunsur sitting at Periyapatna, confirming

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the judgment and decree dated 05.04.2011 passed in

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3 - NC: 2023:KHC:44520 RSA No. 476 of 2013

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O.S.No.106/2003 by the Civil Judge and JMFC,

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Peiryapatna.

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For the sake of convenience, parties are referred to as per their ranking before the trial Court. Appellant Nos.1 to 4 are defendant Nos.1 to 4 and the respondents are the legal representatives of the deceased-plaintiff.

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The brief facts leading rise to filing of this appeal are as under:

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The plaintiffs filed a suit for permanent injunction against the defendants on the ground that the land in Sy.No.84/7 measuring 2 acres situated at Muthur Village, Kasaba Hobli, Periyapatna Taluk, Mysore District was belonging to him having acquired the same under the dharakasth in the year 1950-51. It is the case of the plaintiffs that one Sri Amase i.e., father of the defendants, who is the owner of adjacent land in Sy.No.84/8 are interfering with the peaceful possession and enjoyment of the plaintiffs over the suit land in Sy.No.84/7 measuring 2 acres. The plaintiffs requested the defendants not to

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NC: 2023:KHC:44520 RSA No. 476 of 2013

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interfere into the peaceful possession. But the defendants did not give any heed to the request made by the plaintiffs. Hence, cause of action arose for the plaintiffs to file a suit for permanent injunction.

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Defendants filed written statement contending

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that the land in Sy.No.84/8 measuring 2 acres which is located towards the north side of the suit schedule property was originally granted to one Sri Kala under the Dharakasth Rules in the year 1950 and eversince the date of grant Kala was in possession. After his death, the names of defendant Nos.1 and 7 have been entitled jointly in respect of 2 acres of land in Sy.No.84/8. The defendants

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are seriously disputing the boundaries of the suit schedule property, wherein Amase has deliberately mentioned the boundaries pertaining the land belonging to the defendants. His legal representatives are brought on record. Hence, on these grounds, sought for dismissal of the suit.

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NC: 2023:KHC:44520 RSA No. 476 of 2013

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The Trial Court, on the basis of the above said

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pleadings, framed the following issues:

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1.ªÁ¢AiÀÄgÀÄ zÁªÁ zÁR®Ä ªÀiÁrzÀ ¢£ÁAPÀzÀAzÀÄ zÁªÁ vÀ¥À²Ã®Ä D¹ÛAiÀÄ£ÀÄß PÁ£ÀÆ£ÀÄ§zÀÞªÁV ¸Áé¢üÃ£À ºÉÆÃA¢zÀÝ£ÀÄß gÀÄdÄªÁvÀÄ¥Àr¸ÀÄvÁÛgÉAiÉÆÃ?

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zÁªÁ vÀ¥À²Ã®Ä D¹ÛUÉ CrØ CqÀZÀuÉAiÀÄÄAlÄ ªÀiÁrzÀÄÝ ¤dªÉÃ?

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3.AiÀiÁªÀ DzÉÃ±À?

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In order to prove the case of the plaintiffs, 1^st legal representative of the deceased plaintiff was examined as PW.1 and got marked 11 documents as Exs.P1 to P11. Defendant No.2 examined as DW-1 and got examined one witness as DW-2 and got marked 13 documents as Exs.D1 to D13. The trial Court on assessment of oral and documentary evidence, answered issue Nos.1 and 2 in the affirmative and consequently, decreed the suit of the plaintiff and order of permanent injunction was granted by restraining the illegal interferences of defendant Nos.1 to 4 over the suit schedule property.

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6 - NC: 2023:KHC:44520 RSA No. 476 of 2013

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The defendants aggrieved by the judgment and

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decree passed by the trial Court preferred an appeal in R.A.No.29/2011 on the file of Additional Senior Civil Judge and JMFC, Hunsur. The First Appellate Court, after hearing the parties, has framed the following points for

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consideration:

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1. Whether the plaintiff proves that he is in lawful possession of the schedule property?

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2. Whether the defendant proves that schedule property boundary includes in reality their property?

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3. Whether the interference in the impugned judgment is called for?

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4. What order?

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The First Appellate Court, on re-assessment of the oral and documentary evidence, answered point No.1 in the affirmative, point Nos.2 and 3 in the negative and consequently dismissed the appeal filed by the defendants.

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The defendants, aggrieved by the judgments and decrees passed by the courts below, has filed this second appeal.

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NC: 2023:KHC:44520 RSA No. 476 of 2013

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This court admitted the appeal on the following

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substantial question of law :

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"In view of the judgment of the Apex Court in the case of Anathula Sudhakar Vs. P.Buchi Reddy by Legal representatives and others reported in AIR 2008 SC 2023, was the Appellate Court justified in decreeing the suit of the plaintiff granting an injunction without relegating the plaintiff to file a suit for comprehensive relief to establish his title and the identity of the property?"

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Heard learned counsel for the parties.

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Learned counsel for the defendants submits that

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the boundary shown in the plaint schedule is in respect of Sy.No.84/8 and not on Sy.No.84/7. He submits that there is a dispute in regard to identity of the property. The courts below without considering the dispute in regard to identity of the property has passed the impugned judgments and decrees. He submits that the defendants have denied the title of the plaintiffs over the land in Sy.No.84/8 but the plaintiffs have not sought for relief of declaration of title. He submits that the suit for bare injunction without seeking for a relief of declaration of title

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8 - NC: 2023:KHC:44520 RSA No. 476 of 2013

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is not maintainable. The courts below without examining the maintainability of the suit proceeded to pass the impugned judgments and decrees.

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Further, in order to buttress his arguments, he has placed reliance on the judgment of the Hon'ble Apex Court in the case of ANATHULA SUDHAKAR VS. P. BUCHI REDDY reported in AIR 2008 SC 2033 Hence, on these grounds, he prays to allow the appeal.

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Per contra , learned counsel for the plaintiffs submits that the plaintiffs are the owners in respect of land bearing Sy.No.84/7 measuring 2 acres. He submits that the plaintiffs have produced the records to show that they are in possession and enjoyment of the land bearing Sy.No.84/7. He submits that both the courts below are justified in passing the impugned judgments. Hence, the impugned judgments and decrees passed by the courts below are just and proper and does not call for any interference. Hence, on these grounds, he prays to dismiss the appeal.

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NC: 2023:KHC:44520 RSA No. 476 of 2013

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Perused the records and considered the

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submissions of learned counsel for the parties.

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The plaintiffs in order to prove their case, examined 1^st legal representatives of the plaintiff as PW.1 and he has reiterated the plaint averments in the examination-in-chief and produced the documents Exs.P1 to P5 are the RTC extracts in respect of land bearing Sy.No.84/7, Ex.P6 is the index of land, Ex.P7 is the tax paid receipt, Ex.P8 is the survey sketch, Ex.P9 is the boundary certificate, Ex.P10 is the certified copy of the order passed in P.T.C.K.L.No.(C.R)3/1997-98, Ex.P11 is the original registered sale deed executed in favour of the plaintiff, wherein the plaintiff has executed a registered sale deed in favour of third party. Defendant No.2 examined herself as DW.1 and she has reiterated the written statement averments in the examination-in-chief and produced the documents and marked as Ex.D1 is the grant certificate, Ex.D2 is the certified copy of the index of land, Ex.D3 is the endorsement, Ex.D4 is the RTC extract,

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NC: 2023:KHC:44520 RSA No. 476 of 2013

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Ex.D5 is the Phode Thakthe, Ex.D6 is the survey sketch, Ex.D7 is the boundary certificate, Ex.D8 is the tax paid receipt, Ex.D9 is the grant certificate, Ex.D10 is the sketch, Ex.D11 is the certified copy of the letter written by Tahsildar, Periyapatna to the Police Inspector, Exs.D12 and D13 are the mahazar and further in order to prove that the defendants are in possession of the property i.e., the land bearing Sy.No.84/8 examined one witness as DW.2. It is the case of the plaintiffs that the plaintiffs have purchased the land bearing Sy.No.84/7 measuring 2 acres wherein the defendants contend that the boundary shown

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in respect of Sy.No.84/7 pertains to land in Sy.No.84/8. The defendant is the owner in respect of land bearing Sy.No.84/8. As there is a dispute in regard to identity of the suit property, the plaintiffs are not taken any steps to appoint a Commissioner to ascertain whether the boundary shown in the plaint whether it pertains to Sy.No.84/8 or Sy.No.84/7. Further, the defendant has also denied the title of the plaintiffs over the land in respect of Sy.No.84/7. The plaintiffs ought to have filed a suit for

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NC: 2023:KHC:44520 RSA No. 476 of 2013

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relief of declaration of title. On the contrary, the plaintiffs

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have filed only a suit for bare injunction.

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The Hon'ble Apex Court in the case of

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ANATHULA SUDHAKAR (SUPRA) para No.17 has laid down the guidelines under what circumstance a suit for permanent injunction is maintainable. After going through the judgment passed in ANATHULA SUDHAKAR (SUPRA), there is a dispute in regard to title and also identity of the property. Though the courts below without looking into the said aspect has proceeded to passed the impugned judgments and decrees. The judgments and decrees passed by the courts below are contrary to the law laid down by the Hon'ble Apex Court in the case of ANATHULA SUDHAKAR (Supra). The plaintiffs ought to have filed a suit for relief of declaration of title. The plaintiffs have filed only a suit for bare injunction. Hence, the suit filed by the plaintiffs' is not maintainable. The courts below have committed an error in passing the impugned judgments. In view of the above discussion, I answer substantial

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NC: 2023:KHC:44520 RSA No. 476 of 2013

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question in negative holding that the courts below have committed an error in decreeing the suit for permanent injunction without relegating the plaintiffs to file a suit for comprehensive relief and to establish his title and identity of the property.

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Accordingly, I proceed to pass 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 O.S.No.106/2003 by the Civil Judge and JMFC, Peiryapatna and the judgment and decree passed in

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R.A.No.29/2011 by the Additional Senior Civil Judge and JMFC, Hunsur sitting at Periyapatna, are set aside.

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iii. Consequently, the suit of the plaintiffs is

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dismissed.

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iv. Liberty is reserved to the plaintiffs to file a

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comprehensive suit, if law permits.

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v. Nothing stated herein or by the courts below shall be construed as expression of any opinion regarding title, in any future suit for declaration and consequential reliefs that may be filed by the parties, in accordance with law. Parties to bear their

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respective costs.

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In view of disposal of the appeal, I.A.No.1/2012 does

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not survive for consideration.

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Sd/JUDGE

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SSB

Smt Gowramma W/O Late Kuntaiah v. Sri Kullaiah S/O Late Amavase @ Amase

Case brief

What is this about?

What did the court decide?

Smt Gowramma W/O Late Kuntaiah v. Sri Kullaiah S/O Late Amavase @ Amase

Case brief

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