Dismissed¶302

Rasulsab S/O. Alisab Karjagi v. Mohammadali S/O Babusaheb Maniyar

Karnataka HC17 Sept 2025RFA/100646/2022

Case brief

AI extract

What is this about?

RFA dismissed; Trial Court possession decree confirmed; encroachment suit; consent deeds Ex.D1/D2 admit plaintiff's title and encroachment; suit for possession simpliciter maintainable without declaration where no cloud on title (Anathula Sudhakar AIR 2008 SC 2033; Muddasani AIR 2016 SC 2250); Order II Rule 2 CPC inapplicable - distinct cause of action and distinct property; defendant failed to prove 1 acre 3 guntas claim under sale deed dated 02.05.2007; Commissioner report; Jamkhandi; CTS Nos.5231A/141-144; mesne profits enquiry pending.

What did the court decide?

None to the appellant; the Trial Court decree directing the defendant to hand over vacant possession of suit schedule property 'BCEFGAB' (with enquiry into mesne profits) stands confirmed. ¶302

Rasulsab S/O. Alisab Karjagi Vs Mohammadali S/O… — Specific Performance | Karnataka HC (2025)

What the court decided

AI extract

Outcome

None to the appellant; the Trial Court decree directing the defendant to hand over vacant possession of suit schedule property 'BCEFGAB' (with enquiry into mesne profits) stands confirmed.

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Issue for consideration

Whether the Trial Court was justified in concluding that the plaintiff was the absolute owner of the suit schedule property and that the defendant has no right, title, interest or possession over it. +4 more

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Court's answer

The defendant's entering into a consent deed with the plaintiff to purchase the encroached portion is a pointer to the fact that the defendant had admitted the title of the plaintiff over the suit schedule property and the factum of encroachment.

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Ratio / Principle

Despite his specific plea of owning more than 1 acre 3 guntas under the alleged sale deed dated 02.05.2007 (which he did not produce) and regarding location and identity of his 'MNOP' property, the defendant adduced no legal or acceptable evidence; the Trial Court was therefore fully justified in rejecting his defence.

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Key takeaways

On re-appreciation of the entire material on record, the Trial Court's findings that the plaintiff established title and that the defendant encroached upon the suit schedule properties do not warrant interference; Point Nos.(i) and (ii) answered accordingly.ratio¶209
Since the defendant had admitted the plaintiff's title (consent deeds Exs.D1/D2 and DW-1 admissions), no cloud was cast on the title; applying the principles in Anathula Sudhakar and Muddasani Venkata Narasaiah, the suit for recovery of possession simpliciter was maintainable even without a prayer for declaration of title; Point No.(iii) answered against the appellant.ratio¶261

Detailed headnote1 paragraphs

Karnataka HC (Dharwad Bench), RFA No.100646/2022 (POS), decided 17.09.2025 (oral judgment authored by S.R. Krishna Kumar J. for the Division Bench with C.M. Poonacha J.): appeal by the defendant (legal representatives of deceased Rasulsab Karjagi) dismissed and the judgment/decree dated 26.07.2022 of the Additional Senior Civil Judge, Jamkhandi in O.S.No.70/2015 confirmed, whereby the plaintiff Mohammadali was decreed possession of suit schedule 'BCEFGAB' (CTS Nos.5231A/141-144, carved out of Sy.Nos.63/1-63/3) with enquiry into mesne profits. Held: (i)-(ii) the defendant admitted the plaintiff's title and the encroachment through consent deeds Ex.D1 (12.01.2005) and Ex.D2 (18.12.2004) agreeing to purchase the 70x12 ft encroached portion, through DW-1 cross-examination admissions, and through his rejected counter-claim application I.A.No.12; he adduced no evidence for his plea of holding over 1 acre 3 guntas under the unproduced sale deed dated 02.05.2007, nor rebutted Court Commissioner PW-2's survey showing encroachment; (iii) a suit for recovery of possession simpliciter was maintainable without a prayer for declaration of title since the defendant's admissions left no cloud on the plaintiff's title, applying Anathula Sudhakar (AIR 2008 SC 2033) and Muddasani Venkata Narasaiah (AIR 2016 SC 2250); (iv) Order II Rule 2 CPC was no bar - the earlier suit O.S.No.58/2014 (renumbered O.S.No.142/2021) concerned the distinct plot 5231A/145 with a distinct cause of action, and the plaintiff learnt of the 'CEFGAD' encroachment only from the Commissioner's report dated 24.11.2018.

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NC: 2025:KHC-D:12305-DB RFA No. 100646 of 2022

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 17^TH DAY OF SEPTEMBER 2025

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PRESENT

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THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR AND

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THE HON'BLE MR. JUSTICE C.M. POONACHA REGULAR FIRST APPEAL NO. 100646 OF 2022 (POS-)

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BETWEEN:

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RASULSAB S/O. ALISAB KARJAGI SINCE DECEASED BY HIS LR’S

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1A. SHAMIMABANU

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W/O. SAYYEDRASUL KARJAGI, AGED: 55 YEARS, OCC: HOUSEWIFE, R/O. NEAR ABUBAKAR DARGA, MAIGUR ROAD, JAMKHANDI, DIST: BAGALKOT -587 301.

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1B. MAHAMMEDMUSTAFA

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YASHAVANT NARAYANKAR

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Digitally signed by YASHAVANT NARAYANKAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH DHARWAD

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S/O. RASULSAB KARJAGI, AGED: 34 YEARS, OCC: AGRICULTURE & BUSINESS, R/O. NEAR ABUBAKAR DARGA, MAIGUR ROAD, JAMKHANDI, DIST: BAGALKOT -587 301.

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1C. MAHAMMEDALI

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S/O. RASULSAB KARJAGI, AGED: 32 YEARS, OCC: ADVOCATE, R/O. NEAR ABUBAKAR DARGA, MAIGUR ROAD, JAMKHANDI, DIST: BAGALKOT -587 301.

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1D. SMT. TAIYABA W/O. NOORAHMED KHATIB,

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NC: 2025:KHC-D:12305-DB RFA No. 100646 of 2022

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HC-KAR

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AGED: 29 YEARS, OCC: HOUSEWIFE, R/O. GALALGALI LAYOUT, VIJAYAPUR, DIST: VIJAYAPUR-586 101.

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1E. MAHAMMEDTANVEER S/O. RASULSAB KARJAGI, AGED: 29 YEARS, OCC: AGRICULTURE & BUSINESS, R/O. NEAR ABUBAKAR DARGA, MAIGUR ROAD, JAMKHANDI, DIST: BAGALKOT -587 301.

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AMENDED AS PER ORDER DATED 22.11.2024

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…APPELLANTS

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(BY SRI. GIRISH A. YADAWAD, ADVOCATE)

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AND:

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MOHAMMADALI S/O. BABUSAHEB MANIYAR, AGED ABOUT 47 YEARS R/O. MOTIBAG GALLI, JAMKHANDI, BAGALKOT DISTRICT-587301.

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…RESPONDENT

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(BY SRI. ANIL KALE, ADVOCATE FOR C/R)

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THIS RFA IS FILED UNDER SECTION 96 OF THE CPC., 1908 PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED IN O.S.NO.70/2015 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE JAMKHANDI, DIST: BAGALKOTE DATED 26.07.2022, IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS APPEAL IS COMING ON FOR DICTATING THE JUDGMENT THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR AND

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THE HON'BLE MR. JUSTICE C.M. POONACHA

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NC: 2025:KHC-D:12305-DB RFA No. 100646 of 2022

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HC-KAR

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR)

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This Regular First Appeal is filed under Section 96 of the Code of Civil Procedure, 1908¹ , by the appellant/defendant challenging the judgment and decree dated 26.07.2022 passed in O.S.No.70/2015 by the Additional Senior Civil Judge, Jamkhandi² , whereby, the said suit filed by the respondent/plaintiff seeking for a direction to the appellant/defendant to handover vacant possession of the suit schedule property described by the letters “BCEFGAB” in the hand sketch annexed to schedule ‘A’ and schedule ‘B’ to the plaint was decreed in favour of the respondent/plaintiff against the appellant/defendant by the Trial Court.

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The parties will be referred to as per their ranking before the Trial Court, for the sake of convenience.

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Brief facts giving rise to the present appeal are that

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the plaintiff initially instituted the aforesaid suit seeking recovery of possession, mesne profits and other reliefs in relation to suit schedule property, which was originally delineated by the letters

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1 Hereinafter referred to as the ‘CPC’

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2 Hereinafter referred to as the ‘Trial Court’

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HC-KAR

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“ABCD” in the hand sketch annexed to schedule ‘A’ to the plaint. Subsequently, the plaintiff amended the plaint, redefining the suit schedule property by the letters “BCEFGAB” as per the same. According to the plaintiff, he is the owner of plots bearing CTS Nos.5231A/141, 5231A/142, 5231A/143, 5231A/144 and CTS.No.5231A/145, situated to the west of land bearing R.S.No.63A/4. The adjacent land later converted and numbered as CTS.No.5231/B1, belongs to the defendant and lies to the west of the plaintiff’s property. It was alleged that the defendant, being the owner of the adjacent/adjoining property measuring 70 x 12 = 840 sq.ft., illegally and high handedly encroached upon a portion of the plaintiff’s property. Despite being called upon by the plaintiff to remove the encroachment and hand over possession, the defendant failed to comply. Consequently, the plaintiff instituted the aforesaid suit for recovery of possession, mesne profits and other consequential reliefs in relation to the suit schedule property.

¶49

As stated supra, the hand sketch depicting the suit schedule property is annexed to the plaint as schedule ‘A’, while

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HC-KAR

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the detailed description of the suit schedule property is set out in

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schedule ‘B’ property to the plaint, as under:

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SCHEDULE “A”

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Herein the schedule of hand sketch map of suit property is as under:

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Entire area of BCEFGAB

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SCHEDULE “B”

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Herein the description of suit property its boundaries, is as under:

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TO EAST: ROAD

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TO WEST: Rs No-63A/4 now turned in to NA bearing CTS No-5231/B of defendant and CTS No-5231A/145.

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TO NORTH: ROAD TO SOUTH: RS NO-62 Agril land.

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Hence the schedules

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JAMKHANDI Sd/DATE: 08/06/2015 PLAINTIFF

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Amended schedules filed on 21.07.2019

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HC-KAR

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As can be seen from schedule ‘A’ and ‘B’ to the plaint, the portion of land delineated by the letters “ABCD” was initially claimed by the respondent/plaintiff. Subsequently, plaint was amended to include the entire extent of land delineated by the letters “BCEFGAB”, comprising of four plots, namely CTS Nos.5231A/141, 5231A/142, 5231A/143, 5231A/144, which are said to be situated to the east of the defendant’s property bearing R.S.No.63A/4 (new CTS.No.5231/B1). Similarly, the plaintiff has filed another suit in O.S.No.58/2014 against the appellant/defendant herein, in relation to plot bearing No.5231A/145, which is situated to the north of his property. The said suit has been renumbered as O.S.No.142/2021 and is currently pending adjudication. It is therefore, clear that the subject matter of the present suit, as per the plaint schedule, comprises four plots bearing Nos.5231A/141, 5231A/142, 5231A/143 and 5231A/144 as described in schedule ‘A’ and schedule ‘B’ to the plaint.

¶68

The defendant filed his written statement, inter alia , disputed and denied the various allegations and claim made by the plaintiff. In paragraph No.5 of the written statement, the

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HC-KAR

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defendant admitted that the plaintiff is the owner of the adjoining property; however he denied that the suit schedule property, as described by the plaintiff, forms part of the plaintiff’s property. It was further contended that the defendant was the owner of agricultural land bearing R.S.No.63/4, which is shown by the letters “MNOP” in the schedule of map annexed to the written statement, as under:

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It was contended that the aforesaid property

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measuring 3 guntas was purchased by the defendant from its previous owner Smt.Tayawwa W/o. Kadappa Yallatti and others

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HC-KAR

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vide registered Sale Deed dated 02.05.2007. It was further contended that, although the area marked as “MNOP” in the sketch annexed to the written statement is stated in the Sale Deed to measure 3 guntas, in reality, actual extent is more than 1 acre 3 guntas, which has been in the lawful and peaceful possession and enjoyment of the defendant. It was also contended that there was a road and a Well situated on the eastern side of the defendant's “MNOP” property, which has been used by him as well as by others in the surrounding area, to the knowledge of the plaintiff. The defendant further contended that taking advantage of mistake of the measurement of area purchased by the defendant in his aforesaid Sale Deed, the plaintiff is trying to claim the property belonging to the defendant in collusion with the revenue authorities. It is further contended that the plaintiff has no right, title, or interest in the plaint schedule properties and, as described in the plaint, was never in possession of the said properties. The defendant also contended that, apart from being barred by limitation, the suit was also barred under Order II Rule 2 of the CPC and was, therefore, liable to be dismissed.

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HC-KAR

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After the plaintiff got the plaint amended, the defendant filed additional written statement disputing the identity, description and location of the suit schedule property as claimed by the plaintiff. The defendant reiterated the various allegations and claim made in the original written statement and sought for dismissal of the suit.

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Based on the pleadings of the parties, the Trial Court

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framed the following:

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ISSUES

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1. Whether the plaintiff proves that, he is the absolute owner of the suit schedule ‘B’ property?

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2. Whether the plaintiff further proves that, in the year-2005 the defendant dispossessed him from the suit property?

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3. Whether the defendant proves that, the suit is barred by limitation?

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4. Whether the suit is properly valued and court fee paid is correct?

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5. Whether the plaintiff is entitled for decree as sought for?

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6. What Order or Decree?

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HC-KAR

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ADDITIONAL ISSUE DATED 26.07.2019

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1. Whether plaintiff proves that in the year 2018 the defendant has encroached area shown in letters CEFGAD in addition to already encroached area ABCD as indicated in the hand sketch map?

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ADITIONAL ISSUE DATED 09.06.2022

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1. Whether the suit of the plaintiff is hit by Order 2 Rule 2 of CPC?

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The plaintiff examined himself as PW.1 and one witness as PW.2. Documentary evidence at Exs.P1 to Ex.P19 were marked on his behalf. The defendant examined himself as DW.1 and documentary evidence at Exs.D1 to Ex.D4 were marked by confronting the same to PW.1.

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After hearing the parties, the Trial Court answered Issue No.1 in the affirmative by holding that the plaintiff was the absolute owner of the suit schedule ‘B’ property. The Trial Court also comes to the conclusion that the defendant had dispossessed the plaintiff from the suit schedule property in the year 2005, and that the suit was properly valued and the Court fee paid was sufficient. The Trial Court also answered Issue No.3 in the negative by coming to the conclusion that the suit was not barred by limitation. Further, the Additional Issue dated

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HC-KAR

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26.07.2019 was answered in favour of the plaintiff by holding that the defendant had encroached upon the suit schedule property as indicated in the sketch at schedule ‘A’ to the plaint. So also, the contention of the defendant that in light of the plaintiff filing the earlier suit in O.S.No.58/2014 (O.S.No.142/2021), the present suit was barred under Order II Rule 2 of the CPC, was rejected by the Trial Court. Under these circumstances, the Trial Court decreed the suit filed by the plaintiff against the defendant/appellant and passed the following:

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ORDER

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“The suit filed by the plaintiff is hereby partly decreed with costs.

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The defendant is hereby directed to hand over the suit schedule O.S./70/2015 27 “BCEFGAB” shown in hand sketch map within 3 months.

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The plaintiff is entitled for the enquiry into mesne profits by filing separate petition.

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Draw decree accordingly.”

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HC-KAR

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Being aggrieved by the impugned judgment and decree passed by the Trial Court, the appellant/defendant is before this Court by way of the present appeal.

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Heard the submissions of learned counsel for the appellant and learned counsel for the respondent. Perused the material on record including the records of the Trial Court.

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In addition to reiterating the various contentions urged in the appeal and referring to the material on record, the learned counsel appearing for the appellant submitted that the Commissioner’s report relied upon by the Trial Court was faulty and erroneous, inasmuch as it was prepared on the basis of a layout plan and not with reference to the actual properties existing on the spot. It was contended that Ex.P15-Sale Deed produced by the plaintiff himself shows that, in relation to Sy.No.63/3, the eastern boundary is described as a road, which has not been taken into account by the Trial Court while upholding the claim of the plaintiff. It was further contended that a suit for recovery of possession simpliciter, without seeking a prayer for declaration of title as contemplated under Section 34

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HC-KAR

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of the Specific Relief Act, 1963³ , was not maintainable and was liable to be dismissed. It was also contended that the Commissioner’s report/sketch does not indicate the actual measurements of the suit schedule property, and as such, no reliance could have been placed upon it by the Trial Court while upholding the claim of the plaintiff.

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The learned counsel also invited our attention to the finding recorded on the additional issue, contending that the Trial court erred in concluding that Order II Rule 2 of the CPC was not applicable. It was submitted that, in relation to another encroached portion described as CTS No.5231A/145, the plaintiff had already instituted an earlier suit in O.S.No.58/2014. In that suit, the plaintiff ought to have claimed possession of the present suit schedule properties as part of a comprehensive claim over the entire alleged encroached area. Having failed to do so, the subsequent suit in respect of the remaining portion is barred by the principles laid down under Order II Rule 2 of the CPC and, therefore, liable to be dismissed on this ground.

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3 Hereinafter referred to as the ‘S.R. Act’

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HC-KAR

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Per contra, the learned counsel for appearing for the respondent/plaintiff supporting the impugned judgment and decree passed by the Trial Court held that there is no merit in the appeal and the same is liable to be dismissed. He would submit that the Trial Court came to the correct conclusion that the suit was not barred under Order II Rule 2 of the CPC. He argued that, in the facts and circumstances of the case, and having regard to the admission by the defendant that the plaintiff was the owner of land bearing Sy.No.63/1, 63/2 and 63/3, out of which the suit schedule properties were carved out, measuring a total extent of 6 acres 15 guntas, as admitted in his cross-examination, there was no cloud cast upon the title of the plaintiff. It was further submitted that the defendant did not claim any right over Sy.Nos.63/1, 63/2, or 63/3, but only over Sy.No.63/4 (63/4A). Therefore, there was no necessity for the plaintiff to seek a declaration of title, and the suit for recovery of possession based on encroachment was maintainable in law.

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In support of his submissions, the learned counsel placed reliance on the judgment of the Hon’ble Apex Court in the

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case of Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by

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NC: 2025:KHC-D:12305-DB RFA No. 100646 of 2022

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HC-KAR

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L.Rs and Ors.⁴ , which was subsequently followed in Muddasani Venkata Narasaiah (D) Th. Lrs v. Muddasani Sarojana⁵ . Accordingly, it was submitted that the appeal is devoid of merit and is liable to be dismissed.

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We have given our careful consideration to the rival submissions and perused the material on record.

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The points that arise for consideration in the present appeal are:

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i) Whether the Trial Court was justified in coming to the conclusion that the plaintiff was the absolute owner of suit schedule property and that the defendant does not have any right, title, interest or possession over the same?

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ii) Whether the Trial Court was justified in coming to the conclusion that the defendant had encroached upon a portion of the suit schedule property delineated by the letters “BCEFGAB” and that the plaintiff was entitled to recover possession of the same from the defendant?

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iii) Whether the Trial Court was justified in coming to the conclusion that the suit for recovery of possession

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4 AIR 2008 Supreme Court 2033

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5 AIR 2016 Supreme Court 2250

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HC-KAR

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simpliciter, without seeking a declaration of title, was maintainable?

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iv) Whether the Trial Court was justified in coming to the conclusion that the suit was not barred by the principles contained under Order II Rule 2 of the CPC?

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v) Whether the impugned judgment and decree passed by the Trial Court warrants interference of this Court in the present appeal?

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Regarding Point Nos.(i) and (ii):

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A perusal of the material on record will indicate that in order to prove his title over the suit schedule property, the plaintiff examined himself as PW.1 and one witness as PW.2, whose oral evidence has not been discredited or impeached by the defendant in his cross-examination. In this context, a perusal of the written statement will indicate that in response to the plaintiff’s specific plea, that the suit schedule property was carved out of the land bearing Sy.Nos.63/1, 63/2 and 63/3, the defendant categorically admits that he has nothing to do with Sy.Nos.63/1, 63/2 and 63/3 and all that the defendant contended is that, he was the owner of adjacent land on the western side bearing Sy.No.63/4A (63/4). The Trial Court noticed

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HC-KAR

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the fact that so long as the defendant did not put forth any claim over the lands bearing Sy.Nos.63/1, 63/2 and 63/3, the title of the plaintiff over the said lands was not disputed by the defendant and that the plaintiff was the absolute owner of the said lands.

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The defendant, in addition to admitting the right, title, interest and possession of the plaintiff over the land bearing Sy.Nos.63/1, 63/2 and 63/3, would dispute the identity and location of the suit schedule property as described in the plaint. In this regard, it is a specific contention of the defendant that the suit schedule property as described in the plaint bearing Nos.5231A/141, 5231A/142, 5231A/143 and 5231A/144, was not part and parcel of Sy.Nos.63/1, 63/2 or 63/3. The defendant clearly disputed the location and identity of the suit schedule property as claimed in the plaint. While dealing with this contention, the Trial Court took into account the oral and documentary evidence on record, in particular, the Commissioner’s report and sketch which clearly tallies with the description, schedule and boundaries, etc., as mentioned in the schedule ‘A’ and schedule ‘B’ to the plaint.

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HC-KAR

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In this context, it is relevant to state that the documentary evidence at Exs.P1 to Ex.P6, hand sketch mapsEx.P7 and Ex.P8, and Commissioner’s report cumulatively indicate that identity and location of the plaint schedule property as described in schedule ‘A’ and schedule ‘B’ to the plaint are correct and proper. The Trial Court also took into account that as against the aforesaid evidence produced by the plaintiff, the defendant had not adduced any rebuttal evidence so as to impeach the veracity of the claim of the plaintiff. Similarly, the Trial Court also noticed the fact that nothing is elicited in the cross-examination of the Court Commissioner-PW.2, so as to discredit or impeach his testimony. The Trial Court also took note of the fact that even according to the defendant himself, certain documents i.e., consent deeds at Ex.D1 dated 12.01.2005 and Ex.D2 dated 18.12.2004 were executed between the plaintiff and defendant, which would clearly indicate that the defendant intended to retain the property encroached upon by him, and accordingly, entered into a consent deeds with the plaintiff for monetary consideration, but the said consent deeds/agreement did not culminate into a registered conveyance. However, the very contention urged by the defendant that he had entered into

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HC-KAR

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a consent deed with the plaintiff to purchase the encroached portion from the plaintiff is a pointer to the fact that the defendant had admitted the title of the plaintiff over the suit schedule property and the factum of encroachment.

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A perusal of the impugned judgment and decree will indicate that the Trial Court noticed the fact that the defendant had filed I.A.No.12 seeking a counter claim to enforce the registered conveyance pursuant to the aforesaid consent deeds at Exs.D.1 and D.2 in relation to the suit schedule properties and the said I.A.No.12 was rejected by the Trial Court which attained finality and become conclusive and binding upon the defendant. The Trial Court took into account the said application for counter claim filed by the defendant in order to come to the conclusion that the very filing of application for counter claim to enforce the consent deeds at Exs.D.1 and D.2 would tantamount to the defendant not only admitting that the plaintiff was owner of the suit schedule property but also that the defendant had encroached upon the suit schedule property as claimed by the plaintiff. The Trial Court also considered and appreciated the various admissions, discrepancies, contradictions and

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HC-KAR

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inconsistencies in the cross-examination of DW.1 in order to come to the conclusion that the plaintiff had proved his title over the suit schedule properties as well as that the defendant had encroached upon the suit schedule properties as claimed by the plaintiff. Under these circumstances, the Trial Court recorded a finding of fact that the plaintiff had established his title and that the defendant had illegally and high handedly encroached upon the suit schedule properties describe as schedule “A” and “B” to the plaint and held as under:

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16. Issue No.1, 2 and Additional issue No.1 dated 26.07.2019:-

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These issues and additional issue are interrelated to each other avoid repetition of facts all these issues are taken for common discussion.

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It is burden on the plaintiff to prove that he is owner of the suit schedule propertiy and the defendant has encroached CEFGAD portion of the suit schedule property. The plaintiff has filed evidence on affidavit and reiterated the averments of the plaint relied upon Ex.P-1 to Ex.P-19.

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17. In the cross examination PW-1 stated that he has filed this suit for possession and before filing of the suit he has issued notice to the defendant. Further

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HC-KAR

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PW-1 stated that after forming layout, the dispute arose while surveying the suit schedule property. Further PW-1 stated that after dispute he has paid Rs.1,00,000/- to the defendant, but not remember the date of the said amount given to the defendant and the same has been reduced in the bond paper. In the cross examination PW- 1 admitted the document confronted to him which is marked as Ex.D-1 and further PW-1 admitted the signature appearing on the Ex.D-1. Further PW-1 stated that his brother had given Rs.1,00,000/- to the defendant and further he has stated that he had given Rs.1,00,000/- on the basis of agreement. Further PW-1 admitted that before or after paying of Rs.1,00,000/- they have not paid any amount. Further PW-1 admitted that Ex.D-1 has been reduced into writing as per their agreement and the counsel for defendant got confronted certified copy of agreement and got marked as Ex.D-2. Further PW-1 admitted that he has filed suit in OS.No.58/2014 and in cross examination of PW-1 confronted chief examination and cross examination and plaint in OS.No.58/2014 and got marked Ex.D-2 to Ex.D-4.

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18. Further PW-1 denied that he has not acted upon Ex.D-2 therefore Ex.D-1 came to be executed. Further PW-1 stated that he has not supposed to give an amount to the defendant as per agreement. Further PW-1 denied that the defendant is owner of alleged encroached area shown in Ex.D-1. Further PW-

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1 admitted that as per Ex.D-1 they have to form separate road in their property and further PW-1 denied that the road shown in the rough sketch towards northern side is measuring 40 feet and stated that width of road is 9 meters. If the cross examination of PW-1 is taken into consideration it shows that there was an agreement between the plaintiff and defendant as per Ex.D-1.

¶163

19. In the pleadings the plaintiff has stated that in the year-2005 the defendant usurped area of ABCD as shown in the hand sketch which consists of two dilapidates rooms and open space in the northern side, when the plaintiff was out of station for his trade purpose and dispute went before the elders and the elders have advised the defendant to purchase ABCD area from plaintiff within one year at the market value prevailing then at his costs. The defendant has not specifically denied the said contention, but relied upon Ex.D-1 and Ex.D-2 himself.

¶164

20. Ex.D-1 is consent deed dated 1201-2005, the recitals of the Ex.D-1 is that; EzÀgÀ°è ¥Á.£ÀA.(1) (2) EªÀgÀÄ ªÀiÁrPÉÆ¼ÀÄîªÀ M¦àUÉ ¥ÀvÀæ K£ÉAzÀgÉ EzÀgÀ°è ¥Á.£ÀA.(1) EªÀgÀ ªÀiÁ°ÌÃ dªÀÄRAr UÁæªÀÄzÀ ©ü£Àß ±ÉÃwÌ d«ÄÃ£ÀÄ ªÀÄvÀÄÛ ¥Á.£ÀA(2) EªÀgÀ dªÀÄRAr UÁæªÀÄzÀ ±ÉÃwÌ d«ÄÃ£ÀÄ EzÀgÀ j.¸À.£ÀA.63:4 PÉëÃvÀæ 0J-03UÀÄA. ¸ÀzÀjÃ ¥Á.£ÀA.(1) EªÀgÀ ©ü£Àß ±ÉÃwÌ d«ÄÃ£ÀÄ ªÀÄvÀÄÛ ¥Á.£ÀA (2) EªÀgÀ ±ÉÃwÌ d«ÄÃ£ÀÄ MAzÀPÉÆÌAzÀÄ ºÉÆA¢UÉ EgÀÄvÀÛªÉ. F PÉ¼ÀV£À ¥ÀæPÁgÀ £ÁªÀÅ ¥Á.£ÀA. (1) (2) PÉÆrPÉÆAqÀÄ C¥À¸ÁvÀ DV F PÉ¼ÀV£À PÀgÁgÀÄUÀ½UÉ M¦à PÉÆArzÀÄÝ CzÀgÀ «ªÀgÀ :

¶165

(1) ¥Á.£ÀA. (1) EªÀgÀ ©ü£Àß±ÉÃwÌ d«ÄÃ£ÀzÀ°è JgÀqÀÄ SÉÆÃ°UÀ¼ÀÄ ªÀ RÄ¯Áè

¶166

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eÁUÉ EzÀgÀ GzÀÝ¼ÀvÉ – CdªÀiÁ¸À 70 x 12 ¥sÀÆl EzÀÄÝ ¸ÀzÀjÃ SÉÆÃ° ªÀ RÄ¯Áè eÁUÉAiÀÄ£ÀÄß ¥Á.£ÀA.(2) EªÀgÀÄ PÀ¨ÁÑ ªÀiÁr ¸ÀzÀjÃ D¹ÛAiÀÄ°è EgÀÄvÁÛgÉ ªÀÄvÀÄÛ ¸ÀzÀjÃ C¼ÀvÉAiÀÄ D¹ÛAiÀÄ°è ¥Á.£ÀA.(2) EªÀgÀÄ EzÀÄÝ E£ÀÄß ªÀÄÄAzÉ EªÀgÉÃ EgÀvÀPÀÌzÀÄÝ EzÀÄÝ ªÀÄvÀÄÛ ¸ÀzÀjÃ D¹ÛAiÀÄ §UÉÎ EA¢¤AzÁ MAzÀÄ ªÀµÀðPÉÌ ¢£ÁAPÀ 12-01-2006PÉÌ ¥Á.£ÀA.(1) EªÀgÀÄ ¥Á.£ÀA.(2) EªÀjUÉ RjÃ¢ ºÁQPÉÆqÀÄªÀ PÀgÁgÀÄ EgÀÄvÀÛzÉ. If this piece of evidence is taken into consideration it shows that the land of plaintiff is adjacent to the land of defendant and the defendant is in possession of 70X12 feet consisting of 2 rooms and open space and the defendant is agreed to purchase the same within one year from the date of agreement and further it shows that the plaintiff has to sell the said property to the defendant. Therefore the document produced by the defendant itself shows that the defendant agreed to purchase the 70X12 feet from the plaintiff.

¶169

21. Ex.P-11 is sale deed dated 24-11-2003, on perusal of the same it shows that the plaintiff has purchased 2 acres 6 guntas including 1 gunta of land in Sy.No.63/2 from Ramappa Siddappa Yallatti and 10 others. Ex.P-12 is sale deed dated 01-10-2012, on perusal of the same, it shows that the plaintiff has purchased 2 acres 6 guntas including 2 guntas of kharab land in Sy.No.63/1 from Shrishailappa Yallatti and 7 others. Ex.P- 13 is sale deed dated 28-052003, on perusal of the same it shows that the plaintiff has purchased 2 acres 6 guntas of land in Sy.No.63/1 from Shrishail Gurappa Yallatti. Ex.P-14 is sale deed dated 06-09-2002, on perusal of the same it

¶170

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shows that the plaintiff has purchased 2 acres 6 guntas of land in Sy.No.63/1. Ex.P-15 is sale deed dated 0312-2002, on perusal of the same it shows that the plaintiff has purchased 2 acres 3 guntas of land in Sy.No.63/3.

¶173

22. Ex.P-16 is the certified copy of Ruled card, Ex.P-17 is certified copy of office memorandum. Ex.P-18 is map, Ex.P-19 is certified copy of judgment passed in OS.No.58/2014, on perusal of the same, it shows that the plaintiff has filed suit for recovery of possession and said suit came to be decreed.

¶174

23. On perusal of Ex.P-11 to Ex.P-15 it shows that the plaintiff has purchased the agricultural land under sale deeds and Ex.P-17 shows that 6 acres 15 guntas of land has been converted as non-agricultural land. Further in cross examination of PW-1, the defendant has not denied the ownership of plaintiff over the suit schedule property. The learned counsel for the defendant argued that the suit is not maintainable without declaration of title. But in present case the defendant has not denied the title, but admitted the ownership of plaintiff by confronting the Ex.D-1 and Ex.D-2. The recitals of Ex.D-1 and Ex.D-2 shows that in the land of plaintiff there are two rooms and open space and the defendant has taken possession of the said two rooms and plot. The defendant has agreed to purchase the said property

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within one year and plaintiff has paid Rs.50,000/- to the defendant as per Ex.D-1, hence now question of denying the title does not arise. Though in the cross examination denied that the plaintiff has not paid amount, but Ex.D-1 itself shows that the defendant has received the amount. The defendant himself got confronted the document and got marked Ex.D-1 and Ex.D-2 when the defendant admitted the said document, he has admitted the recitals of the document, therefore it shows that the defendant has admitted the ownership of plaintiff. Though the defendant has stated that his vendor has shown extent of 3 guntas of land wrongly, but not produced the sale deed nor he stated steps taken by him against his vendor in respect of wrong mention of extent. Further defendant has not stated boundaries of his land. Furthermore the defendant has not taken steps to prove his contention by examining witness. The defendant has not produced any documents to show that the suit schedule property comes within 3 guntas of his land. Though the defendant produced Ex.D-1 and Ex.D-2, but he has not stated the steps taken by him to get registered sale deed as per Ex.D-1 and Ex.D-2.

¶178

24. The recitals of Ex.D-2 is that; ¥Á.£ÀA.1 EªÀgÀ ©ü£Àß ±ÉÃwÌ d«ÄÃ¤£À°ègÀÄªÀ JgÀqÀÄ SÉÆÃ°UÀ¼ÀÄ, RÄ¯Áè eÁUÉ EzÀÄÝ, ¸ÀzÀj SÉÆÃ° ªÀ RÄ¯Áè eÁUÉAiÀÄ£ÀÄß ¥Á.£ÀA.2 EªÀgÀÄ PÀ¨ÁÑ ªÀiÁr ¸ÀzÀjÃ D¹ÛAiÀÄ°è EgÀÄvÁÛgÉ The recitals of Ex.D-1 is that ¥Á.£ÀA. EªÀgÀ ©ü£Àß ±ÉÃwÌ

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d«ÄÃ¤£À°è JgÀqÀÄ SÉÆÃ°UÀ¼ÀÄ ªÀ RÄ¯Áè eÁUÉ EzÀgÀ GzÀÝ¼ÀvÉ-CdªÀiÁ¸À 70 x 12 ¥sÀÆl EzÀÄÝ ¸ÀzÀj SÉÆÃ° ªÀ RÄ¯Áè eÁUÉAiÀÄ£ÀÄß ¥Á.£ÀA.2 EªÀgÀÄ PÀ¨ÁÓ ªÀiÁr. Therefore Ex.D-1 and Ex.D-2 itself shows that the defendant is in possession of 70 X 12 feet of property belongs to the plaintiff. But there was condition on the defendant to get registered the sale deed within one year from the date of execution of Ex.D-1, but since 2006 till 2014, the defendant has not taken steps nor stated the reasons why he has not taken steps against the plaintiff. On perusal of the order sheet it shows that in the year-2019 the defendant has filed I.A.No.12 under section 151 of CPC to file counter claim and said application came to be rejected. In the said counter claim the defendant sought to directed the plaintiff to execute regular exchange deed in favour of defendant pertaining to suit schedule-‘A’ property. But I.A came to be rejected. Therefore, it shows that the plaintiff is owner of the said property.

¶182

25. Ex.P-9 is copy of notice dated 06-01-2014 issued by the plaintiff to the defendant calling upon him to hand over possession since defendant has breached the condition of the agreement dated 12-012005. The defendant nowhere stated that he had given reply to the Ex.P-9 nor stated steps taken by him against the plaintiff. Further in the written statement or in the evidence the defendant not whispered anything about the steps taken by him on the basis of Ex-D-1 and Ex-D-2.

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In the cross examination DW-1 admitted that ªÁ¢AiÀÄ d«ÄÃ£ÀÄ 6 JPÀgÉ 15 UÀÄAmÉ JAzÀgÉ ¸Àj. CªÀgÀÄ ¸ÀzÀj d«ÄÃ£À£ÀÄß ¨sÁUÀ ¨sÁUÀªÁV RjÃ¢ ªÀiÁrzÁÝgÉ JAzÀgÉ ¸Àj. Further admitted that D ¥ÀæPÁgÀ ¹.n.J¸ï GvÁgÀUÀ¼ÀÄ ªÀÄAdÆgÀÄ DVªÉ JAzÀgÉ ¸Àj. If this piece of evidence is taken into consideration it shows that the plaintiff has purchase 6 acres 15 guntas of land part by part and name of plaintiff mutated in CTS records. Therefore on perusal of the evidence on record it shows that the plaintiff is owner of suit schedule property.

¶186

26. In the pleadings the plaintiff has stated that plaintiff has usurped 70 X 12 =840 Sq. feet area of the plot of the plaintiff in ABCD in the year-2005, in the year-2018 newly encroached by letters CEFGAD as shown in hand sketch map which is encroached area shown in the commissioner report dated 24-11-2018.

¶187

In the evidence PW-1 reiterated the same. In the cross examination of PW-1 made suggestion that CwPÀæªÀÄ DVzÉ JAzÀÄ ºÉÃ¼À®Ä eÁUÉ ¥ÀæwªÁ¢UÉ ¸ÉÃjzÀÄÝ JAzÀgÉ ¸ÀjAiÀÄ®è. GvÁgÉAiÀÄ°è vÀ¥ÀÄà PÉëÃvÀæ EgÀÄªÀÅzÀ£ÀÄß zÀÄgÀÄ¥ÀAiÉÆÃUÀ ¥Àr¹PÉÆAqÀÄ ¥ÀæwªÁ¢ £ÀªÀÄä eÁUÉ CwPÀæªÀÄt ªÀiÁrzÁÝgÉ JazÀÄ ¸ÀÄ¼ÀÄî ¥ÀæwªÁzÀ£É ªÀiÁqÀÄwÛzÉÝÃ£É JAzÀgÉ ¸ÀjAiÀÄ®è. If this piece of evidence is taken into consideration it shows that the defendant is claiming the encroached area belongs to him, that the plaintiff by taking undue advantage that the wrong extent of property appearing in the CTS records the plaintiff is claiming that the defendant has encroached the suit schedule-‘B’ property. But the

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defendant has not taken steps against his vendor and nor stated the exact extent of his land nor the defendant has taken contention that his property is part and parcel of the suit schedule-‘B’ property.

¶191

27. PW-2 in his evidence deposed that court has appointed him as court commissioner and he surveyed the property and prepared map and prepared report and before survey of the property he issued notice to both parties and he shown encroached area in yellow color and the buildings are shown in green color over the yellow color, the defendant has encroached CTS No.5231A/141, 142, 143, 144, 145 and as per city survey records the plaintiff is owner of the suit schedule property. The plot No.5231B/1 and 2 of defendant adjacent to the property of plaintiff.

¶192

In cross examination PW-2 stated that there is 30 feet road. Though the defendant has cross examined PW-2, but nothing has been elicited to disprove in respect of commissioner work carried out by the PW-2. There is no reasons to discarded the evidence of PW-2.

¶193

28. Ex.P-18 is sketch prepared by the PW-2, on perusal of the same it shows that the PW-2 has shown encroached area in yellow color and also shown that the defendant has encroached the said partition. But the defendant has not produced any documents to show that the plots shown in yellow color belongs to him. If the defendant has produced documents, then

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matter would be different. Further the defendant has not produced any documents to prove his ownership over the suit schedule property. Though the plaintiff has shown the extent of suit schedule property as 70 X 12 feets, but got amended the plaint stating that the defendant has encroached the CEFGAD portion of suit schedule property in the year- 2018. Though the defendant has filed additional written statement on 1807-2019, but reiterated the averments of the written statement filed on 05-04-2017 but not taken any specific defence nor examined any witnesses and not produced any documents, therefore there is no reasons to disbelieve the evidence of PW-1 and PW-2. Hence, on perusal of the oral and documentary evidence on record it is opinion of the court that the plaintiff is owner of the schedule property and defendant has usurped thesuit schedule property in the year-2005 and also encroached CEFGAD portion in the year 2018. Accordingly issue No.1, 2 and additional issue dated 26-07-2019 are answered in Affirmative.

¶197

As can be seen from the aforesaid findings of fact recorded by the Trial Court in the light of the pleadings of the parties and the oral and documentary evidence produced by the plaintiff, the defendant had not adduced any evidence to establish his defence or his right, title, interest and possession over the suit schedule property. It is also pertinent to note that

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the defendant has put forth a specious plea in his written statement that he had purchased land bearing Sy.No.63/4 from its earlier owners vide registered sale deed dated 02.05.2007 and that the said sale deed indicates that 3 guntas of land was purchased by him. The defendant however, contended that though he had purchased 3 guntas of land under the said sale deed dated 02.05.2007, the actual extent was more than 1 acre 3 guntas and not restricted to 3 guntas as depicted in the sale deed. The defendant also contended that along with the written statement he has produced the sketch which delineated the properties purchased by him by letters ‘MNOP’ referred to supra.

¶201

A perusal of the material on record will indicate that, despite having taken up a specific contention regarding purchasing the written statement schedule property allegedly measuring more than 1 acre 3 guntas delineated with the letters ‘MNOP’ in the written statement schedule sketch, the defendant had failed to establish the said contention by legal or acceptable evidence. In fact, the defendant did not even produced the alleged sale deed dated 02.05.2007 referred to in paragraph No.9 of the written statement; so also the defendant did not

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placed any material to establish the actual extent of land purchased by him was 1 acre 3 guntas and not 3 guntas as depicted in the sale deed. The defendant also did not make any effort to establish location, identity, correctness, legality and validity of the written statement schedule sketch produced along with the written statement. In fact though the defendant contends in his cross-examination that he had taken steps to get the sale deed rectified, there is absolutely no material produced by him in this regard. Under these circumstances, having put forth specious/specific plea pertaining to not only his title to an extent of 1 acre 3 guntas under alleged sale deed dated 02.05.2007 but also in respect of location and identity of his property in the absence of any material to establish the said contention, we are of the view that the Trial Court was fully justified in rejecting the defence put forth by the defendant in the suit by recording finding against him.

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Upon re-appreciation, re-evaluation and re-

¶206

consideration of the entire material on record, we are of the considered opinion that the Trial Court was fully justified in upholding the claim of the plaintiff and rejecting the contention

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of the defendant by correct and proper consideration and appreciation of the material on record and the said findings recorded by the Trial Court do not warrant interference by this Court in the present appeal and Point Nos.(i) and (ii) are answered accordingly.

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Regarding point No.(iii) :

¶211

The defendant took up a contention that there was a cloud cast upon the tile of the over the suit schedule property and that suit for recovery of possession simpliciter without seeking declaration of title as mandated under Section 34 of the Specific Reliefs Act was not maintainable. In this context, the Trial Court took into account the material on record which clearly indicated that the defendant had admitted that the title of the plaintiff over the suit schedule property by producing the consent deeds at Exs.D.1 and D.2 between the plaintiff and defendant, in which the title of the plaintiff over the suit schedule property had been admitted by the defendant himself. The Trial Court also noticed that admissions in the cross-examination of the defendant (DW1) to the effect that the plaintiff was owner of the suit schedule property. Accordingly, the Trial Court concluded

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that since the defendant had admitted the title of the plaintiff over the suit schedule property, there was no cloud cast upon the title of the plaintiff over the suit schedule property so as to warrant seeking a prayer for declaration of title and consequently suit for possession simpliciter without declaration was perfectly maintainable in law in the facts and circumstances obtaining in the instant case. In the case of Anathula Sudhakar⁴ , the Apex Court held as under:

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“11. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.

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11.1. Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.

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11.2. Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an

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injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.

¶221

11.3. Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.

¶222

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 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 plaintiffs 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

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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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13. In a suit for permanent injunction to restrain the defendant from interfering with plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and defendant tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may prove physical or lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Even in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in

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issue in such a suit, though it may arise incidentally or collaterally.

¶230

14. 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 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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17. 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.

¶235

(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.

¶236

(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

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matter involves complicated questions of fact and law relating to title, the court willrelegate the parties to the remedy by way of comprehensive suit for declarationof title, instead of deciding the issue in a suit for mere injunction.

¶240

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

¶241

(emphasis supplied)

¶242

28. Similarly in the case of Muddasani Venkata Narasaiah⁵ ,

¶243

the Hon’ble Apex Court held as under:

¶244

“11. In the instant case, as per concurrent findings of all the Courts, defendant No. 3 has failed to prove the

¶245

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factum of her adoption by deceased Yashoda in the year 1959. There was no corresponding document of adoption and other documentary evidence showing that defendant No. 3 had ever been adopted by the deceased Yashoda. True it is that in some of the revenue entries the name of defendant No. 3 has been shown as person in possession, but not in the capacity of adopted daughter. Yashoda was admittedl y the owner of the property. The plaintiff has based his case to recover possession on the strength of the sale deed executed by Buchamma in his favour.

¶248

12. In the aforesaid background of facts, we come to the question whether it was necessary to seek relief or declaration of title. In our opinion, the plaintiff has filed the suit for possession on the strength for title and not only on the basis of prior possession. It was not a summary suit for ejectment filed under Section 6 of the Specific Relief Act, 1963. Thus, plaintiff could succeed in suit for possession on the strength of the title. The issue had been framed on the question of title of the plaintiff as well as on the question of adoption of defendant No.3. On the basis of title claimed in the suit, both the parties have adduced their evidence in support of their respective cases. The main plea of defendant No. 3 that she was an adopted daughter of Yashoda has not been found to be established by the trial Court, the first Appellate Court or by the High Court. Thus, in our opinion, there was no serious cloud on the title of the plaintiff so as to force him to seek the relief for

¶249

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declaration of title in the instant case which was in fact based on the strength of the sale deed executed by Buchamma, who was the sole surviving heir of Balaiah as such succeeded to the property and had the right to execute the sale deed in favour of the plaintiff.

¶252

13. We are fortified in our aforesaid conclusion by a decision in Kurella Naga Druva Yudaya Bhaskara Rao v. Galla Jani Kamma (2008) 15 SCC 150: (AIR 2009 SC (Supp) 690, Para 14), wherein this Court has examined the question of maintainability of suit for possession without prayer for declaration of title. This Court has referred to its earlier decision in Anathula Sudhakar v. P. Buchi Reddy (2008) 4 SCC 594: (AIR 2008 SC 2033), wherein the plaintiff had purchased the suit land under registered sale deed dated 10.4.1957 and the defendant did not claim the title with reference to any document but claimed to have perfected title by adverse possession. It was held by this Court that the said plea did not prima facie put any cloud over the plaintiff's title calling him to file suit for declaration of title. Unless there is serious cloud over the title of the plaintiff there is no need to file suit for declaration of title. The suit for possession was maintainable. This Court laid down as follows:-

¶253

"16. The plaintiff had purchased the suit land under registered sale deed dated 10.4.1957. Defendant did not claim title with reference to any document but claimed to have perfected title by adverse possession. A mere claim

¶254

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by the defendant that he had perfected his title by adverse possession, does not mean that a cloud is raised over plaintiff's title and that the plaintiff who is the owner, should file a suit for declaration of title. Unless the defendant raises a serious cloud over the title of the plaintiff, there is no need to file a suit for declaration. The plaintiff had title and she only wanted possession and therefore a suit for possession was maintainable. We are fortified in this view by the following observations of this Court in Anathula Sudhakar v. P. Buchi Reddy (2008) 4 SCC 594: (AIR 2008 SC 2033).

¶257

"14. 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 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....."

¶258

(emphasis supplied)

¶259

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¶261

A perusal of the material on record bearing on mind the principles enunciated in the aforesaid judgments of the Apex Court is sufficient to come to the conclusion that in the light of the admission of the plaintiff’s title by the defendant over the suit schedule property and in the absence of the defendant proving his defence as regards title, location and identity etc., over the suit schedule property, we are of the considered opinion that the Trial Court was fully justified in holding that the present suit for recovery of possession simpliciter was maintainable, even without the plaintiff seeking relief of declaration in the facts and circumstances of the instant case. Accordingly, Point No.3 is also answered against the appellant by confirming the findings of the Trial Court in this regard and by holding that the suit of the plaintiff for recovery of possession was maintainable, even without seeking declaration of title in the facts and circumstances of the instant case.

¶262

Regarding Point No.(iv) :

¶263

The defendant took up a specific contention that the present suit schedule properties comprised of four plots bearing Nos.5231A/141, 5231A/142, 5231A/143 and 5231A/144 which

¶264

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were encroached by the defendant, while one more encroached portion i.e., plot No.5231A/145 was the subject matter of the earlier suit in O.S.No.58/2014 (New O.S.No.142/2021) which had been instituted prior to the present suit in O.S.No.70/2015 and since the plaintiff did not include his own claim in relation to all the encroached portion in the earlier suit in O.S.No.58/2014 and omitted to do so, the present suit was not maintainable and barred by the principles of Order II Rule 2 of the CPC. In this context, the Trial Court considered the said contention and framed an additional issue on 09.06.2022 and came to the conclusion that in light of the specific contention urged by the plaintiff at the time of filing the earlier suit, the plaintiff was unaware of the encroachment by the defendant in relation to the present suit schedule properties regarding which, he came to know only in the year 2018, no cause of action available to the plaintiff to include the present suit schedule properties in the earlier suit in O.S.No.58/2014 and in the absence of any material to show that the plaintiff had an opportunity to claim the present suit schedule property at the time he instituted the earlier suit in O.S.No.58/2014, Order II Rule 2 of the CPC would have no application to the facts and circumstances of the instant case.

¶267

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The Trial Court also came to the conclusion that, the suit schedule property involved in the present suit was bearing No.5231A/141, 5231A/142, 5231A/143 and 5231A/144, which were completely distinct and different properties depicted separately by metes and bounds and distinct and independent of each other. Under these circumstances, the Trial Court negatived the said contentions urged by the defendant by holding as under:

¶270

“32. Additional issue dated 09-06-2022 :- In the written statement the defendant has taken contention that the suit of the plaintiff is hit by Order 2 Rule 2 of CPC. The defendant has not specifically stated in written statement in respect of original suit filed by the plaintiff on the same cause of action nor disclosed in the written statement in respect of original suit number and court in which the said suit is pending. At the time of cross examination of PW-1 the defendant got confronted certified copy of plaint in OS.No.58/2014 and said document got marked as Ex.D-4. On perusal of the Ex.D-4 it shows that the plaintiff has filed suit for possession of property plot bearing CTS.No.5231A/145 measuring 145.50 Sq.Mtrs. The learned counsel for the defendant argued that the cause of action shown in the Ex.D-4 and cause of action shown in present case are one and the same, therefore, the suit of the plaintiff is hit under Order 2 Rule 2 of CPC. In the present case the plaintiff has shown the cause of action arose on 07-

¶271

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01-2014 when the defendant has received notice.

¶274

The plaintiff got appointed court commissioner to survey the suit schedule property and the court commissioner has submitted report thereafter the plaintiff got amended the plaint in respect of “CEFGAD” portion of the suit schedule property and also got amended in the cause of action and the cause of action shown as 24-112018, when CTS officer filed commissioner report by showing newly encroached area of CTS No.5231A/141, CTS No.5231A/142, CTS No.5231A/143 and CTS No.5231A/144. The defendant has filed additional written statement reiterating the averments of the written statement filed in the year-2017, but not specifically denied nor taken specific defence. Further the defendant has not produced certified copy of the plaint in OS.No.58/2014 to show that after appointment of court commissioner by the plaintiff and after survey of the suit schedule property the plaintiff in OS.No.58/2014 got amended the plaint, therefore the subsequent suit was based on a distinct cause of action not found in the farmer suit. It may be that subject matter of the suit was the very same property, but the cause of action was distinct. Furthermore the suit schedule properties shown in Ex.D-4 is plot bearing CTS.No.5231/A/145 measuring 100 Sq.feet and in present suit shown “BCEFGAB” shown in hand sketch in respect of plot No.5231/A/141, No.5231/A/142, No.5231/A/143 and No.5231/A/144.

¶275

33. Expression ‘cause of action’ for the purpose of this rule means essential facts constituting the right and its

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¶279

infringement which entitles a person to sue the wrong dower or defaulter or any one liable for it. Same cause of action is sine qua non-for attracting the mischief contemplated under Order 2 Rule 2. For showing it that the subsequent suit is hit by Rule 2, the defendant must produce certified copy of the plaint of the earlier suit. If the claim is subsequent suit is founded on different cause of action, Rule 2 is no bar. Further on perusal of the evidence on record it shows that the plaintiff came to know about subsequent encroachment in the year-2018, hence Rule 2 is not attracted in other words the rule bars the subsequent suit only if the plaintiff had knowledge of the additional claim omitted in the first suit.

¶280

34. The learned counsel for the defendant relied upon citation reported in; 2014 (5) KCCR SN-1295 (SC) it is held that Order 2 Rule 2 duty to make all claimsRules are offshoots of the ancient principle that there should be an end to the litigation-No one ought to be vexed twice for same cause-If different reliefs and claims arise out of same cause of action then plaintiff must be place all his claims before court in one suit-Hence, cannot omit one relief or claim except without leave of court.

¶281

In the written statement the defendant has taken contention that the suit is not maintainable under Order 2 Rule 2 of CPC. But not specifically pleaded the particulars of the suit in written statement. Further the plaintiff has got amended the plaint in respect subsequent encroachment in the year-2018 and the defendant has not taken any specific

¶282

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defence, hence the cause of action shown in both suits are different.

¶285

35. The learned counsel for the defendant relied upon citations reported in; 2014 (2) KCCR SN-65 (SC) it is held that Order 2 Rule 2, and Order 6 Rule 17- Bar to second suit-Earlier suit for recovery of amount and subsequent suit for damages filed against the appellant bank and its officers-If a plaintiff is entitled to seek reliefs against the defendant in respect of same cause of action, the plaintiff cannot split up the claim so as to omit one part to the claim and sue for the other. If the cause of action is same the plaintiff has to be place all his claims before the court in one suit, as Order 2 Rule 2 of CPC is based on cardinal principle that defendant should not be vexed twice for the same cause. Order 2 Rule 2 of CPC, therefore, requires the unity of all claims based on the same cause of action in one suit, it does not contemplate unity of distinct separate cause of action.

¶286

In present case the learned counsel for the defendant argued that the cause of action shown in OS.No.58/2014 and cause of action present suit are one and the same. But the defendant not mentioned specifically in the written statement in respect of original suit filed earlier to the present suit. The plaintiff got amended the plaint in the year-2018 and stated the cause of action arose in the year2018 when the court commissioner submitted report. Further the defendant has not produced certified copy of

¶287

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plaint in OS.No.58/2014 stating that the plaintiff got amended plaint in OS.No.58/2014 and the cause of action shown in that case and present case are one and the same. Furthermore property shown in both suits are different. Therefore the facts and circumstances of the case are different. Hence, with due respect the citation is not applicable in present case on hand. Hence, it is opinion of the court that the defendant has not proved his contention raised in respect of Order 2 Rule 2 of CPC. Accordingly, additional issue dated 09-06-2022 is answered in Negative.”

¶290

As rightly held by the Trial Court, the cause of action and the property involved in the earlier suit in O.S.No.58/2014 and the cause of action and property involved in the present suit in O.S.No.70/2015 being distinct, different, separate, independent and mutually exclusive from each other, the principles governing Order II Rule 2 of the CPC cannot be made applicable to the present case so as to non-suit the plaintiff on this ground.

¶291

reappreciation of the entire material on record, we are of the view that the Trial Court was fully justified in coming to the conclusion that Order II Rule 2 of the CPC would not operate as a

¶292

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bar for the present suit thereby negativing the claim of the defendant in this regard. Point No.(iv) is also answered against the defendant in the present appeal.

¶295

Regarding Point No.(v) :

¶296

While dealing with Point Nos.(i) and (ii) we have already come to the conclusion stated herein above that, the plaintiff had established his title over the suit schedule property and that the defendant who had illegally, highhandedly encroached upon the same was to be directed to hand over the possession of the suit schedule property back to the plaintiff together with mesne profits etc. So also, we have answered Point Nos.(iii) and (iv) against the appellant by holding that the suit for recovery of possession filed by the plaintiff was maintainable, even without seeking relief of declaration and the suit was not barred under Order II Rule 2 of the CPC as contended by the defendant. Under these circumstances, we are of the view that various contentions and grounds urged by the appellant/defendant in the present appeal are devoid of merits and the same cannot be accepted.

¶297

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In view of the forgoing discussions, we are of the view that the appeal is devoid of merits and same deserves to be dismissed. Point No.(v) is also accordingly answered against the appellant.

¶300

In the result, we pass the following:

¶301

ORDER

¶302

The appeal is hereby dismissed.

¶303

The impugned judgment and decree dated 26.07.2022 passed in O.S.No.70/2015 by the Trial Court is hereby confirmed.

¶304

Draw decree accordingly.

¶305

Sd/(S.R. KRISHNA KUMAR) JUDGE

¶306

Sd/(C.M. POONACHA) JUDGE

¶307

PMP para Nos.1 to 22 EM para Nos.23 to end CT-MCK List No.: 1 Sl No.: 8

Issues for consideration

5 issues framed by the court

AI extract

1.
Whether the Trial Court was justified in concluding that the plaintiff was the absolute owner of the suit schedule property and that the defendant has no right, title, interest or possession over it.¶126
The court held
The defendant's entering into a consent deed with the plaintiff to purchase the encroached portion is a pointer to the fact that the defendant had admitted the title of the plaintiff over the suit schedule property and the factum of encroachment.ratio¶147
2.
Whether the Trial Court was justified in concluding that the defendant encroached upon the suit schedule property delineated by letters 'BCEFGAB' and that the plaintiff was entitled to recover possession of the same.¶127
3.
Whether the Trial Court was justified in concluding that the suit for recovery of possession simpliciter, without seeking a declaration of title, was maintainable.¶133
The court held
Since the defendant had admitted the plaintiff's title (consent deeds Exs.D1/D2 and DW-1 admissions), no cloud was cast on the title; applying the principles in Anathula Sudhakar and Muddasani Venkata Narasaiah, the suit for recovery of possession simpliciter was maintainable even without a prayer for declaration of title; Point No.(iii) answered against the appellant.ratio¶261
4.
Whether the Trial Court was justified in concluding that the suit was not barred by the principles contained under Order II Rule 2 of the CPC.¶134
The court held
The cause of action and the property involved in the earlier suit O.S.No.58/2014 (plot 5231A/145) being distinct, different, separate, independent and mutually exclusive from those of the present suit (plots 5231A/141-144, encroachment known to the plaintiff only from the 2018 Commissioner's report), Order II Rule 2 of the CPC cannot be made applicable so as to non-suit the plaintiff; Point No.(iv) answered against the defendant.ratio¶290
5.
Whether the impugned judgment and decree passed by the Trial Court warrants interference of this Court in the present appeal.¶135
The court held
The appeal is devoid of merits and deserves to be dismissed; Point No.(v) answered against the appellant.ratio¶299

Rasulsab S/O. Alisab Karjagi v. Mohammadali S/O Babusaheb Maniyar

Case brief

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Rasulsab S/O. Alisab Karjagi v. Mohammadali S/O Babusaheb Maniyar

Case brief

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What the court decided

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