Dismissed

Krishnappa Mallappa Badiger v. Hallappa Sannabasappa Pujar

Karnataka HC25 Nov 2024RSA/100055/2014

Case brief

AI extract

What is this about?

The Appellant challenged the First Appellate Court's decision setting aside a decree for declaration and permanent injunction. The High Court dismissed the second appeal, holding that a suit for injunction without seeking possession is not maintainable when the plaintiff is out of possession.

What did the court decide?

None granted; Second Appeal dismissed and First Appellate Court's judgment confirmed.

Krishnappa Mallappa Badiger Vs Hallappa Sannabasappa… — Property and Title | Karnataka HC (2024)

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NC: 2024:KHC-D:17217 RSA No. 100055 of 2014

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 25^TH DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MRS JUSTICE K.S.HEMALEKHA

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RSA NO. 100055 OF 2014 (DEC/INJ)

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BETWEEN:

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KRISHNAPPA S/O. MALLAPPA BADIGER, AGE: 59 YEARS, OCC. AGRICULTURE, R/O. HERUR, TQ. HANGAL, DIST. HAVERI-581 104.

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… APPELLANT

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(BY SRI. ARAVIND D KULKARNI, ADVOCATE)

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AND:

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HALLAPPA @ HOLABASAPPA S/O. SANNABASAPPA PUJAR,

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SINCE DECEASED BY HIS LRS.

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Digitally
signed by
VISHAL
VISHAL NINGAPPA
NINGAPPA PATTIHAL
PATTIHAL Date:
2024.11.28
10:18:52
+0530

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1A. SMT. CHANNABASAVVA @ SUSHILAVVA W/O. HALAPPA @ HOLABASAPPA PUJAR, AGE: 44 YEARS, OCC. HOUSEHOLD,

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1B. BHUDEPPA S/O. HALAPPA @ HOLABASAPPA PUJAR, AGE: 32 YEARS, OCC. AGRICULTURE,

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1C. RAJESHEKHAR S/O. HALAPPA @ HOLABASAPPA PUJAR, AGE: 30 YEARS, OCC. AGRICULTURE,

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1D. NEELAVVA D/O. HALAPPA

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2 - NC: 2024:KHC-D:17217 RSA No. 100055 of 2014

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@ HOLABASAPPA PUJAR,

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AGE: 28 YEARS, OCC. HOUSEHOLD,

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1E. RENUKA D/O. HALAPPA @ HOLABASAPPA PUJAR, AGE: 26 YEARS, OCC. HOUSEHOLD,

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1F. SHIVALINGAVVA D/O. HALAPPA @ HOLABASAPPA PUJAR, AGE: 30 YEARS, OCC. HOUSEHOLD,

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ALL ARE R/O. HERUR, TQ. HANGAL AND DIST. HAVERI-581 148.

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… RESPONDENTS

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(BY SRI. LAXMAN T MANTAGANI, ADVOCATE FOR R1 TO R6 (I.E. R1(A) TO R1(F))

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THIS RSA IS FILED U/S.100 OF CPC 1908, AGAINST THE JUDGEMENT AND DECREE DATED 20.04.2013 PASSED IN R.A.NO.24/2008 ON THE FILE OF THE SENIOR DIVISION CIVIL JUDGE, HANGAL, ALLOWING THE APPEAL, FILED AGAINST THE JUDGMENT AND DECREE DATED 08.08.2008 AND THE DECREE PASSED IN O.S. NO.112/2006 ON THE FILE OF THE CIVIL JUDGE (JR.DN.) AND JMFC., AT HANGAL, DECREEING THE SUIT FILED FOR DECLARATION AND PERMANENT INJUNCTION.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA

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3 - NC: 2024:KHC-D:17217 RSA No. 100055 of 2014

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ORAL JUDGMENT

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Assailing the judgment and decree in

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R.A.No.24/2008 dated 20.04.2013 on the file of the Senior Division Civil Judge, Hangal (hereinafter referred to as “First Appellate Court” for short), reversing judgment and decree in O.S.No.112/2006 dated 08.08.2008 on the file of Civil Judge (Jr.Dn) and JMFC, Hangal (hereinafter referred to as “trial Court” for short) the plaintiff is before this Court in this Regular Second Appeal.

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Parties herein are referred to as per the rank

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before the trial Court for sake of convenience.

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Suit seeking for declaration, mandatory and permanent injunction in respect of VPC No.162 measuring East-West 27 feet and North-South as per the hand sketch map shown as “ABCD” (hereinafter referred to as “Suit Property” for short). The case of the plaintiff is that Mallappa Fakkirappa Badiger, the father of the plaintiff was the absolute owner of the suit property and on his

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4 - NC: 2024:KHC-D:17217 RSA No. 100055 of 2014

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death, the plaintiff acquired the suit property under inheritance, that towards Northern side of the plaintiff’s property the predecessor has constructed a tiled house, it is downstair to the Western side bathroom water and also constructed in the suit property, the defendant in the year 2006 January closed the “ABEF” canal and without licence of the Panchayat he has put up a temporary shed in the suit property as “GHIJ” portion shown in the hand sketch map.

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On notice the defendant appeared and filed his written statement inter alia denying the plaint averments and contending that the “ABEF” canal is in suit property is false that the plaintiff’s backyard water flows to the Southern side of the VPC of the suit property and also flow to the Southern side of the drainage, that the suit of the plaintiff is not maintainable.

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The trial Court based on the pleadings framed the necessary issues. In order to substantiate their claim the plaintiff examined himself as PW1, two witnesses as

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5 - NC: 2024:KHC-D:17217 RSA No. 100055 of 2014

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PW2 and PW3, marked documents at Ex.P1 to Ex.P11. On the other hand the defendant examined himself as DW1, marked documents at Ex.D1 to Ex.D2.

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The trial Court decreed the suit directing the defendant to remove the temporary shed, temporary bathroom and also 4 feet wall, which is shown in hand sketch “BFKL”. Feeling aggrieved, the defendant preferred appeal before the First Appellate Court. The First Appellate Court while re-appreciating the entire oral and documentary evidence arrived at a conclusion that the plaintiff has preferred suit for mandatory injunction without seeking possession and the suit of the plaintiff is defective. By the judgment and decree, the First Appellate Court allowed the appeal preferred by the defendant, setting aside the judgment and decree of the trial Court and held that the suit of the plaintiff is not maintainable. Feeling aggrieved, the plaintiff is before this Court in this Regular Second Appeal.

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Heard the learned counsel for the appellant and

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learned counsel for the respondents and perused the material on record.

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The plaintiff's suit for declaration, mandatory and permanent injunction, according to the plaintiff himself the defendant has encroached upon the suit property which belonged to the plaintiff, when the case of the plaintiff is that he is out of possession, he has to sue for possession and consequential relief of possession. The law is well settled that when the plaintiff is out of possession, his suit without relief of possession is not maintainable. The Apex Court in the case of Anathula

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Sudhakar Vs. P.Buchi Reddy (Dead) by L.Rs. and Others¹ ( Anathula Sudhakar ) has summarized under what circumstances consequential relief would be sought and held at paragraph No.21 reads as under:

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1 (2008) 4 SCC 594

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NC: 2024:KHC-D:17217 RSA No. 100055 of 2014

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“21. To summarize, 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 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 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 (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue 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 straight-forward, 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

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

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In light of the settled proposition of law, the First Appellate Court was right in arriving at a conclusion that the plaintiff's suit for declaration, mandatory and permanent injunction without seeking possession was not maintainable and there is no error committed by the First Appellate Court. The manner in which the First Appellate Court has the assessed entire oral and documentary evidence this Court is of the considered view there is no perversity and illegality in the judgment of the First Appellate Court warranting any interference under Section 100 CPC and no substantial question of law arise for consideration in the present appeal and this Court pass the following:

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NC: 2024:KHC-D:17217 RSA No. 100055 of 2014

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10 -

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ORDER

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i. The Regular Second Appeal is hereby

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dismissed.

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ii. The judgment and decree of the First Appellate Court stands confirmed.

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SD/-

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(JUSTICE K.S.HEMALEKHA)

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AT CT:PA List No.: 2 Sl No.: 3

Krishnappa Mallappa Badiger v. Hallappa Sannabasappa Pujar

Case brief

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Krishnappa Mallappa Badiger v. Hallappa Sannabasappa Pujar

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