Allowed

Sri. Sathish Kini Ullal v. U Sudhakar Kini

Karnataka HC12 Jun 2024WP/8802/2023

Case brief

AI extract

What is this about?

Defendants in a bare injunction suit sought framing of additional issues challenging the plaintiff's ownership and the maintainability of an injunction suit without declaration and possession. The trial court refused; the High Court set aside that order and directed the trial court to frame three additional issues on title, coparcenary character and maintainability.

What did the court decide?

Impugned order dated 05.01.2022 on I.A.No.4 set aside; trial court directed to frame three additional issues regarding ownership, coparcenary rights and maintainability of bare injunction suit.

Sri. Sathish Kini Ullal Vs U Sudhakar Kini — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC:20788 WP No. 8802 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF JUNE, 2024

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BEFORE

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THE HON'BLE MR JUSTICE M.I.ARUN WRIT PETITION NO.8802 OF 2023 (GM-CPC)

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BETWEEN:

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SRI SATHISH KINI ULLAL AGED ABOUT 66 YEARS S/O LATE U. RAMANATH RESIDING AT ULLAL KINI HOUSE ULLAL, MANGALORE-575 020.

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SRI SHRIKANTH KINI ULLAL AGED ABOUT 64 YEARS S/O U. SATHISH KINI RESIDING AT ULLAL KINI HOUSE ULLAL, MANGALORE-575 020.

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…PETITIONERS

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(BY SRI RAGHAVENDRA SHENOY M., ADVOCATE FOR SRI CYRIL PRASAD PAIS, ADVOCATE)

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Digitally signed by V MANJUSHA BAI

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Location: High Court of Karnataka

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AND:

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U. SUDHAKAR KINI (SINCE DEAD)

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SRI SAMPREETH LAXMAN KINI ULLAL S/O LATE U. SUDHAKAR KINI AGED ABOUT 38 YEARS R/AT G-207, G-BLOCK PLATINUM CITY, YESHWANTHPUR BENGALURU-560 022.

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…RESPONDENT

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(BY SRI RAKESH KINI, ADVOCATE)

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THIS PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO PASS A WRIT OF CERTIORARI BY QUASHING THE IMPUGNED ORDER DATED

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2 - NC: 2024:KHC:20788 WP No. 8802 of 2023

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05.01.2022 PASSED BY THE IV ADDITIONAL CIVIL JUDGE AND JMFC., MANGALORE, DAKSHINA KANNADA IN O.S.NO.985/2019 ON I.A.NO.4 FILED UNDER ORDER XIV RULES 5 READ WITH SECTION 151 OF THE CODE OF CIVIL PROCEDURE, 1908, WHICH IS AT ANNEXURE-A, CONSEQUENTLY ALLOW THE I.A.NO.4 FILED BY THE PETITIONERS HEREIN UNDER ORDER XIV RULE 5 READ WITH SECTION 151 OF THE CODE OF CIVIL PROCEDURE, 1908, ETC.

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THIS PETITION COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THROUGH PHYSICAL HEARING/VIDEO CONFERENCING THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Aggrieved by the order dated 05.01.2022 passed by

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IV Additional Civil Judge and JMFC, Mangalore, on I.A.No.4 filed under Order 14 Rule 5 read with Section 151 of CPC in O.S.No.985/2019, the defendants therein have preferred this petition.

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The respondent herein is plaintiff no.2 in the original suit. The original suit came to be filed on the ground that the plaintiff is the absolute owner of the suit schedule property and he permitted the defendants therein to enjoy

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the same on leave and licence basis and even after termination of the same, they refused to vacate the suit

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NC: 2024:KHC:20788 WP No. 8802 of 2023

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schedule property, and hence, the following prayers are made in the suit:

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"V. The plaintiff therefore prays for a judgement and decree in favour of the plaintiff and against the defendants for the following reliefs:

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(a) Mandatory injunction directing the defendants to vacate and surrender the vacant possession of the schedule premises to the plaintiff within the time to be fixed by this Honourable Court and on their failure to get the same through the process of the Court.

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b) To pay mesne profits at the rate of `1,000/- per day from the date of suit till the date of delivery of the schedule premises

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The defendants filed the written statement and have contended that plaintiff no.2 is not the sole owner of the suit schedule property and the same is a joint family property and that plaintiff no.2 and the defendants belong to the same family and the defendants are in possession because they were put in possession by their ancestors and not plaintiff no.2 and there was no leave and licence agreement as alleged by plaintiff no.2.

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NC: 2024:KHC:20788 WP No. 8802 of 2023

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Based on the aforementioned contentions of the

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parties, the trial court has framed the following issues:

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"ISSUES

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Whether the plaintiff proves that the defendant No.1 is a licencee under him?

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Whether the plaintiff proves that he has terminated the licence by issuing notice?

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Whether the plaintiff is entitled for the relief of mandatory injunction as sought for?

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Whether the plaintiff is entitled for the relief of mesne profits as sought for?

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Whether the defendant No.1 proves that the frame of the suit for bad in law?

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What Order or Decree?"

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"ADDL. ISSUES FRAMED ON 05.01.2022

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Whether the suit is properly valued for the purpose of court fee and jurisdiction?

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Addl. Issue is treated as preliminary issue."

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The defendants not satisfied by the issues framed filed

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an application under Order 14 Rule 5 r/w Section 151 of

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CPC for framing of additional issues as follows:

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"1. Whether the plaintiff No.2 proves that he has acquired the absolute ownership to the plaint schedule property as per the terms of the last WILL and Testament dated

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5 - NC: 2024:KHC:20788 WP No. 8802 of 2023

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21.05.2019 registered as Document No. MGC-300094/2019-20 executed by U Sudhakar Kini?

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Whether the defendants prove that the suit of the plaintiff for bare mandatory injunction is maintainable without seeking for a relief of declaration and possession? 3. Whether the defendants prove that the court can decide the validity of the WILL in a bare suit for injunction?"

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The trial court dismissed the application of the defendants. Hence, they have filed this writ petition.

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The case of the petitioners is that once they raise a cloud over the title of plaintiff no.2, the trial court is required to frame an issue regarding the ownership of plaintiff no.2 over the property. It is further submitted that once the petitioners are claiming rights over the property as coparceners, an issue is required to be framed in that respect also. It is also submitted that once the defendants have disputed the title of plaintiff no.2, then in that event, an issue regarding maintainability of a bare injunction suit is required to be framed.

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6 - NC: 2024:KHC:20788 WP No. 8802 of 2023

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Per contra, the respondent justifies the order passed by the trial court and prays for dismissal of the writ petition.

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Issues arise when a material proposition of fact or law is affirmed by one party and denied by the other.

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In the instant case, the case of plaintiff no.2 is that he is the owner of the suit schedule property, that the defendants were permitted to utilize the property on leave and licence basis and that even after demanding the defendants to vacate the same, they have failed to do so. The case of the defendants is that plaintiff no.2 is not the sole owner of the suit schedule property but it is a coparcenary property and that the defendants have a right over the property as coparceners of the property and there was no leave and licence agreement as alleged by plaintiff no.2 and that the defendants have been put in possession

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of the suit schedule property by their ancestors. Under the circumstances, this Court is of the opinion that it would be appropriate to frame an issue regarding the

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NC: 2024:KHC:20788 WP No. 8802 of 2023

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ownership of the property, whether the same is a coparcenary property and whether plaintiff no.2 can maintain a bare injunction suit without seeking for the relief of declaration and possession. For that reason, the impugned order passed by the trial court is liable to be set aside and the following order is passed:

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ORDER

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(1) The writ petition is allowed;

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(2) The impugned order dated 05.01.2022 passed

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by IV Additional Civil Judge and JMFC, Mangalore,

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on I.A.No.4 filed under Order 14 Rule 5 read with Section 151 of CPC in O.S.No.985/2019 is hereby

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set aside;

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(3) The trial court is hereby directed to frame the following additional issues and proceed with the matter:

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"(i) Whether plaintiff no.2 proves that he is the owner of the suit schedule property?

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(ii) Whether the defendants prove that the property is a joint family property and they are coparceners?

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NC: 2024:KHC:20788 WP No. 8802 of 2023

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(iii) Whether the defendants prove that the suit for a bare mandatory injunction is maintainable without seeking for a relief of declaration and possession under the given facts and circumstances of the case?"

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Sd/JUDGE

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hkh.

Sri. Sathish Kini Ullal v. U Sudhakar Kini

Case brief

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Sri. Sathish Kini Ullal v. U Sudhakar Kini

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