Disposed¶75

Shri S M Siddeq v. Shri Syed Shabbir Ahmed

Karnataka HC24 Mar 2025RP/406/2024

Case brief

AI extract

What is this about?

NC: 2025:KHC:12414; RP No.406 of 2024; Review Petition; Order XLVII Rule 1 r/w S.114 CPC; Order VII Rule 11 CPC; Order VII Rule 7 CPC; rejection of plaint; mandatory injunction; perpetual injunction; suit for possession vs injunction; trespasser; licensee; deemed trespasser under Easements Act; Anathula Sudhakar v. P. Buchi Reddy (2008) 4 SCC 594; Sant Lal Jain v. Avtar Singh 1985 (2) SCC 332; CRP No.24/2024; O.S.No.409/2022; Channapatna Ramanagara; Suraj Govindaraj J.; disposed 24-03-2025; review declined; liberty to file fresh suit.

What did the court decide?

No review of the order dated 15.7.2024 in CRP No.24/2024; liberty reserved to the petitioners to file such suit as may be advised and avail such remedy as may be available under law. ¶75

Shri S M Siddeq Vs Shri Syed Shabbir Ahmed — Karnataka HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

No review of the order dated 15.7.2024 in CRP No.24/2024; liberty reserved to the petitioners to file such suit as may be advised and avail such remedy as may be available under law.

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Issue for consideration

Whether, where the defendants were alleged in the plaint to be trespassers in possession, a suit for mandatory injunction (to hand over possession) and perpetual injunction alone — without reliefs of declaration and possession — is maintainable, i.e., whether Anathula Sudhakar vs. P. Buchi Reddy or Sant Lal Jain vs. Avtar Singh governs; and consequently whether the order dated 15.07.2024 in CRP No.24/2024 rejecting the plaint contains an error apparent warranting review.

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Court's answer

A licensee whose licence has come to an end is considered a trespasser only as a deemed fiction under the Easements Act, and not as a trespasser in the normal circumstances; hence authority dealing with recovery of possession from a former licensee does not govern suits against persons who were trespassers all along.

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Ratio / Principle

A suit on licence is different from a suit seeking eviction or ejectment of possession: in a suit against a licensee the licensor is always deemed to be in possession in terms of the Easement Act, the licensee being in permissive possession.

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Key takeaways

On the plaint averments (defendant No.3 in collusion with defendants Nos.1 and 2 having trespassed on the first floor and run a garment business therein, the defendants being in possession and not being licensees of the plaintiffs), the decision in Sant Lal Jain vs. Avtar Singh is not applicable to the present case; accordingly the counsel-driven attempt to distinguish Buchi Reddy on trespasser grounds fails.ratio¶74
There is no ex facie error in the order dated 15.07.2024 passed in CRP No.24/2024; the review petition is therefore declined and disposed, with liberty reserved to the petitioners to file such suit as may be advised and avail such remedy as may be available under law.ratio¶74

Detailed headnote1 paragraphs

Review under Order XLVII Rule 1 r/w S.114 CPC — High Court of Karnataka, Bengaluru (Suraj Govindaraj J, single-judge Oral Order, 24-03-2025) refuses review of its own order of 15.7.2024 in CRP No.24/2024, whereby the plaint in O.S.No.409/2022 (mandatory injunction to evict defendants from ground and first floors plus perpetual injunction, without declaration or possession reliefs) was rejected following Anathula Sudhakar vs. P. Buchi Reddy ((2008) 4 SCC 594). Counsel for petitioners argued Buchi Reddy bites only where the dispossessor holds title/interest, invoking Sant Lal Jain vs. Avtar Singh (1985 (2) SCC 332) paras 7-8 for maintainability of a mere mandatory-injunction suit. The Court held: (i) a terminated licensee turns trespasser only as a deemed fiction under the Easements Act, the licensor being deemed in possession, so a suit on licence differs from an ejectment suit; (ii) since the plaint averred that defendants Nos.1-3 trespassed and ran a garment business on the first floor and were not licensees, Sant Lal Jain is inapplicable; (iii) hence no ex facie error in the CRP order — petition disposed, liberty reserved to file a proper suit.

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1 - NC: 2025:KHC:12414 RP No. 406 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 24^TH DAY OF MARCH, 2025

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BEFORE

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THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ

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REVIEW PETITION NO. 406 OF 2024

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BETWEEN:

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SHRI S M SIDDEQ S/O LATE SYED ANWAR UDDIN AGED ABOUT 39 YEARS

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SMT. BALQUIS BANO W/O LATE SYED ANWAR UDDIN AGED ABOUT 63 YEARS

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SHRI S A SADIQ S/O LATE SYED ANWAR UDDIN AGED ABOUT 33 YEARS

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ALL ARE R/AT NO. 956, 1^ST CROSS, UPPER DAIRA CHANNAPATNA RAMANAGARA DISTRICT 562160

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Digitally signed by SHWETHA RAGHAVENDRA Location: HIGH COURT OF KARNATAKA

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…PETITIONERS

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(BY SRI. ATHINI ABDUL GANI KHAWAJ SAHEB., ADVOCATE)

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AND:

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SHRI SYED SHABBIR AHMED SON OF LATE S A KHADER AGED ABOUT 55 YEARS R/AT NO. 725, SALAM ULLA STREET WARD NO. 24, CHANNAPATNA TOWN RAMANGARA DISTRICT 562160 REP BY HIS GPA HOLDER SYED MOHIUDDIN

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NC: 2025:KHC:12414 RP No. 406 of 2024

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SHRI RAJESH S/O NAGARAJ AGED ABOUT 24 YEARS R/AT NO. 948 MANDIPETE MAIN ROAD MADINA CHOWK CHANNAPATNA 562160

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SHRI. MALIK SHAIK S/O AZIZ SHAIK AGED ABOUT 40 YEARS R/AT NO. 943 MANDIPETE MAIN ROAD MADINA CHOWK CHANNAPATNA 562160

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…RESPONDENTS

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(BY SRI. PALLAVA R., ADVOCATE FOR R1; V/O DATED 21.11.2024 NOTICE TO R2 & R3 IS D/W)

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THIS REVIEW PETITION IS FILED UNDER ORDER XLVII RULE 1 READ WITH SECTION 114 OF THE CODE OF CIVIL PROCEDURE 1908 PRAYING TO CALL FOR THE RECORDS IN CRP NO. 24/2024 DISPOSED ON 15.7.2024 BY THS HON’BLE COURT.

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THIS REVIEW PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE SURAJ GOVINDARAJ

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ORAL ORDER

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The petitioners are before this Court seeking for the following reliefs:

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a. Call for the records in CRP No.24/2024 disposed on 15.7.2024 by this Hon’ble Court.

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3 - NC: 2025:KHC:12414 RP No. 406 of 2024

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b. Kindly Review the order dated 15.7.2024 in CRP No.24/2024 at Annexure-A passed by Hon’ble Court.

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c. Kindly pass such other orders and grant such relief which the Hon’ble Court may deem fit under circumstances of the case.

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The petitioners had filed a suit in O.S.No.409/2022 seeking for the following reliefs:

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“Wherefore, the plaintiffs above named most humbly prayed hat setting aside all the contentions of Defendants if any, a following decrees kindly be passed in favour of the plaintiffs:

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a. A decree for Mandatory Injunctions may kindly be passed mandating / enforcing the defendants No.1 & 2, their agents, servants, henchmen or anybody acting on their behalf be evicted / ejected / removed by removing all the good, articles, furniture kept in the ground floor of the suit property bearing Door No.948, bearing Khata No.1118/1236 situated at Old Tharagpete Mandipete, Channpatna.

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b. A decree for Mandatory Injunctions may kindly be passed mandating / enforcing the defendants No.1 & 3, their agents servants, henchmen or anybody acting on their behalf be evicted / ejected / removed by removing all the good, articles, furniture kept in the first floor of the suit property bearing Door No.948, bearing Khata No.1118/1236 situated at Old Tharagpete Mandipete, Channapatna.

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c. A decree for perpetual injunction may kindly pass restraining the defendants, their agents, servants, henchmen or anybody acting on their behalf from interfering peaceful enjoyment, occupation and possession of the suit property or any part thereof.

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d. On final hearing of the suit if for any reason, the Hon’ble Court arrives to mould the relief in favour of

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the plaintiff, the same may be moulded U/O 7 Rule 7 CPC.

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e. Permission to amend the plaint as and when required may be granted.

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f. Any other relief which is deemed fit by this Hon’ble Court may kindly be granted.

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g. The Cost of the suit may be awarded.”

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In the said suit, defendant No.1 had filed an application under Rule 11 of Order 7 of the Code of Civil Procedure for rejection of the plaint. The same having been dismissed, defendant No.1 had filed a Civil Revision Petition in CRP No.24/2024 which came to be disposed by order dated 15.7.2024. Taking note of the fact that none had been appearing for the defendant, the matter for arguments, the plaintiffs in the suit having admitted that it is the defendants who were in possession of the property, a suit for mandatory injunction and permanent injunction would not be maintainable, the necessary reliefs of declaration and possession not having been sought for, the decision of the Hon’ble Apex Court in the case of Anathula Sudhakar vs. P. Buchi Reddy

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dead by his LR’s and others¹ would be applicable

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and ex facie, the suit was one, which is not maintainable, as such, rejected the paint. It is the said order which is sought to be reviewed in the present matter.

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Sri.Athini Abdul Gani Khawaj Saheb, learned counsel for the petitioners would submit that it was by inadvertence that he could not appear in the matter in CRP No.24/2024 when it was taken up. However, on merits, he would wish to make his submission which could be taken up for consideration for review of the earlier order.

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4.1. His submission is that Bucchi Reddy's case would be applicable only in case where a person is dispossessed by a person who is not a trespasser i.e., a person who has a title or interest in the property.

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1 (2008) 4 SCC 594

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NC: 2025:KHC:12414 RP No. 406 of 2024

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4.2. Insofar as trespasser is concerned, he submits

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that it is Sant Lal Jain vs. Avtar Singh² which would be applicable rule, more particularly para 7 and 8, which is reproduced hereunder for easy reference;

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7. In the present case it has not been shown to us that the appellant had come to the Court with the suit for mandatory injunction after any considerable delay which will disentitle him to the discretionary relief. Even if there was some delay, we think that in a case of this kind attempt should be made to avoid multiplicity of suits and the licensor should not be driven to file another round of suit with all the attendant delay, trouble and expense. The suit is in effect one for possession though couched in the form of a suit for mandatory injunction as what would be given to the plaintiff in case he succeeds is possession of the property to which he may be found to be entitled. Therefore, we are of the opinion that the appellant should not be denied relief merely because he had couched the plaint in the form of a suit for mandatory injunction.

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8. The respondent was a licensee, and he must be deemed to be always a licensee. It is not open to him, during the subsistence of the licence or in the suit for recovery of possession of the property instituted after the revocation of the licence to set up title to the property in himself or anyone else. It is his plain duty to surrender possession of the property as a licensee and seek his remedy separately in case he has acquired title to the property subsequently through some other person. He need not do so if he has acquired title to the property from the licensor or from

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2 1985 (2) SCC 332

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NC: 2025:KHC:12414 RP No. 406 of 2024

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someone else lawfully claiming under him, in which case there would be clear merger. The respondent has not surrendered possession of the property to the appellant even after the termination of the licence and the institution of the suit. The appellant is, therefore, entitled to recover possession of the property. We accordingly allow the appeal with costs throughout and direct the respondent to deliver possession of the property to the appellant forthwith failing which it will be open to the appellant to execute the decree and obtain possession.

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4.3. By relying on Sant Lal Jain’s case he submits that even a suit for mandatory injunction to handover possession would be maintainable, there is no requirement to seek for possession. Applying Sant Lal Jain ’s case to the present facts situation he submits that the suit as filed

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by the plaintiff for mandatory injunction for handover a possession is maintainable and no declaration relief or relief for possession is required to be sought for in terms of the decision of the Hon’ble Apex Court in Bucchi

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Reddy’s case.

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NC: 2025:KHC:12414 RP No. 406 of 2024

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Sri.Pallava R., learned counsel for respondent No.1

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would again rely on Buchi Reddy’s case (supra) to contend that irrespective of whether defendant No.1 is a licensee or not, once defendant No.1 is found to be in possession, a suit for possession is required to be filed.

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Heard the learned counsel for the partes and perused papers.

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The submission of the learned counsel for the petitioners is that if a trespasser were to be in possession and or the plaintiffs were to be deprived of possession by a person who is a trespasser, the decision in Buchi Reddy's case would not apply and in that regard, he has relied upon Sant Lal Jain's case.

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In Sant Lal Jain's case, the defendant was a licensee whose license had been terminated, and it is in that background that the Hon’ble Apex Court held

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that a suit for mandatory injunction would be maintainable. A suit on license coming under Easement Act is different from a suit seeking for eviction or ejectment of possession. Inasmuch in a suit against a licensee, the licensor is always deemed to be in possession in terms of the Easement Act and the licensee is in permissive possession. Once the license were to come to an end, the licensee is considered to be a trespasser as a deemed fiction under the Easements Act and not as a trespasser in the normal circumstances.

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In the present case, the plaintiffs have categorically stated in Para (vi) of the plaint that the defendant No.3 in active collaboration and colluding with defendants No.1 and 2 trespassed on the first floor of the suit premises running illegal readymade jeans and fashionable garment shop. Thus, it is clear that not only defendant No.3 in collusion with defendants No.1 and 2 trespassed but were also running a business in the suit schedule premises. Thus, they

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were even as per the averments made by the plaintiffs in possession on the first floor of the suit premises. Such being the case, the defendants not being licensees of the plaintiffs and having trespassed, the decision in Santal Jain 's case would not be applicable. In that view of the matter, I am of the considered opinion that there is no ex facie error in the order dated 15.07.2024 passed in CRP No.24/2024 which has been pointed out. Reserving liberty to the petitioners to file such suit as may be

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advised and avail such remedy as may be available under law, the petition stands disposed .

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Sd/(SURAJ GOVINDARAJ) JUDGE

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PRS/SR List No.: 2 Sl No.: 17

Shri S M Siddeq v. Shri Syed Shabbir Ahmed

Case brief

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Shri S M Siddeq v. Shri Syed Shabbir Ahmed

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