Mr Ajay Kumar Vs Sri P Shashikumar

THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 13.07.2022 PASSED IN RA.No.133/2020 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MANGALURU, D.K, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 25.02.2020 PASSED IN OS No.241/2014 ON THE FILE OF THE III ADDITIONAL CIVIL JUDGE AND JMFC, MANGALURU, D.K.

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THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 08.12.2025 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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CORAM: HON'BLE MR JUSTICE H.P.SANDESH

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CAV JUDGMENT

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Heard the learned counsel for the appellant and also the learned counsel for the respondents.

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The factual matrix of the case of the plaintiff

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before the Trial Court is that, this appellant is in permissive possession of the suit schedule property and though he agreed to quit and vacate the suit schedule property, he did not vacate the same. Hence, he was forced to file a suit for

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permanent injunction and mandatory injunction. The contents of the plaint is that the schedule property comprised of a house bearing Door No.1-S-21-1583 which is shown as schedule ‘B’ property in the plaint. The defendant was residing in the schedule ‘B’ premises prior to the execution of sale deed in favour of this plaintiff by way of permissive occupant under his erstwhile owner. During execution of the sale deed in favour of the plaintiff, the defendant had promised him that he would vacate and handover the schedule ‘B’ premises to the plaintiff within four months. Accordingly, the plaintiff had also permitted the defendant No.1 to reside in the schedule ‘B’ premises. As the defendant did not comply with the promise made by him, the plaintiff by revoking the permission which was granted earlier had asked the defendant to vacate the premises which is not been complied with by the defendant No.1 till the date of filing of this suit and though the plaintiff subsequently revoked the permission by issuing legal notice

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dated 20.01.2014. The defendant has continued to be in possession of the premises which amounts to un-authorized possession and further defendant has also un-authorizedly put up construction in the pavement/roadway abutting to the schedule ‘A’ premises.

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In pursuance of the suit summons, the

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defendant appeared and filed the written statement that there was an agreement of sale in existence in his favour and also he questioned the title of the plaintiff. As the defendant had turned hostile towards the plaintiff, the plaintiff has approached this Court.

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The defendant No.1 in his written statement denied that the plaintiff is the owner of the suit schedule property and no sale deed dated 01.10.2012 as stated by the plaintiff in his plaint got registered in favour of the plaintiff and as such, the plaintiff was never put in possession of the plaint schedule property. However, he admits the existence of schedule ‘B’ premises and contend

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that, he is in possession of the said house. He denied the very averment of the plaint that he is not in permissive possession under erstwhile owner as alleged by the plaintiff and also has denied that there was no correspondent between the plaintiff and the defendant No.1 to the effect that this defendant had agreed to vacate and handover the schedule ‘B’ house premises in favour of the plaintiff within four months. It is also contended that, when there arise no licensor or licensee relationship between the plaintiff and defendant, the question of plaintiff revoking the permission will not arise and he does not have any right to revoke the permission. It is contended that, originally the plaint schedule premises belongs to Smt. Bhavani and the same was granted to her by the Government under the provisions of PTCL Act and the alleged sale deed executed by said Bhavani in favour of the plaintiff without obtaining permission from the competent authority is bad in law and the same will not convey any right. It is also contended

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that, he had entered into agreement of sale with erstwhile owner on 17.05.2011 by paying entire sale consideration amount and she could not obtain the required permission from the concerned authority to transfer the schedule property in favour of this defendant. Hence, he could not get the sale deed registered in his favour. It is also his case that the said erstwhile owner also had executed power of attorney on 31.05.2011 and also a registered Will on 31.05.2011 in his favour. By virtue of the agreement of sale, he is in possession of the property and defendant is in actual possession of the same and the same is also an irrevocable one. It is also contended that Bhavani had no valid right to execute the sale deed in favour of the plaintiff. The defendant No.1 also took the defence that Court fee paid is insufficient and there is no jurisdiction to file the suit for the relief of mandatory injunction. It is contended that bare injunction suit is not maintainable without seeking an order of declaration.

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Based on the pleadings of the parties, the

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plaintiff examined himself as P.W.1 and got marked the documents as Exs.P1 to P6. On the other hand, the defendants got examined the general power of attorney holder as D.W.1 and got marked the documents as Exs.D1 to D4.

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The Trial Court, after considering both oral and documentary evidence placed on record, answered all the issues as ‘negative’, in coming to the conclusion that the plaintiff is not the owner of the suit schedule property and comes to the conclusion that the defendant No.1 is not in permissive possession of the suit schedule property and the plaintiff is not entitled for the relief of possession of ‘B’ schedule property and also not entitled for prohibitory injunction with regard to ‘A’ schedule property and also not proved the interference made by the defendant No.1 in peaceful possession and enjoyment of the plaint ‘A’ schedule property of the plaintiff.

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Being aggrieved by the judgment and decree of

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the dismissal of the suit, an appeal is filed before the First Appellate Court in R.A.No.133/2020, wherein the grounds urged by the plaintiff before the First Appellate Court is that the very approach of the Trial Court is erroneous and the Trial Court has failed to understand the principles of mandatory injunction and the findings of the Trial Court on the issues are opposed to the evidence. It is also contended that the Trial Court has committed serious illegalities by dismissing the suit of the plaintiff, in coming to the conclusion that there is prohibition under the PTCL Act and the same has resulted in miscarriage of justice.

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Based on the grounds urged in the appeal, the

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First Appellate Court also, formulated the points whether the plaintiff has proved that defendant No.1 is in permissive occupation of the suit ‘B’ schedule property and it is lawfully terminated, whether the plaintiff proves the alleged interference of the first defendant in his peaceful possession

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and enjoyment of the suit ‘A’ schedule property and whether the judgment and decree of the Trial Court requires interference.

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The First Appellate Court, on re-appreciation of both oral and documentary evidence placed on record, answered all the points as ‘affirmative’, in coming to the conclusion that the plaintiff has proved that the defendant No.1 is in permissive possession of the premises and his possession is also terminated by issuing legal notice and also comes to the conclusion that, in respect of ‘A’ schedule property, there was interference by the defendant No.1 and the Trial Court also committed an error in not appreciating both oral and documentary evidence placed on record and also extracted Sections 4 and 5 of the Karnataka Schedule Castes and Schedule Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 and Rules 1979 (‘the Act’ for short) and extracting the same, the First Appellate Court comes to the conclusion that the provisions of Sections 4

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and 5 of the Act attracts to the case on hand and the transaction between the parties is erroneous and set aside the judgment of the Trial Court and allowed the appeal, granting the relief of mandatory injunction directing the defendant to vacate and handover vacant possession of the schedule ‘B’ premises to the plaintiff within one month and also granted prohibitory injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the plaint ‘A’ schedule property.

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Being aggrieved by the judgment and decree of the First Appellate Court, this second appeal is filed before this Court. This Court earlier heard the matter when the matter was listed for admission and at the time of admission itself, disposed of the same vide judgment dated 17.02.2023 setting aside the judgment and decree of the First Appellate Court by reversing the judgment of the Trial Court. However, given liberty to the plaintiff to approach an

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appropriate forum seeking for an order of eviction against the defendant No.1.

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Being aggrieved by the order passed by this

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Court, the plaintiff/appellant filed the Civil Appeal before the Apex Court in Civil Appeal No.13084/2024. The Apex Court set-aside the order only on the ground that no substantive question of law is framed nor answered while allowing the appeal and on the above said ground only, judgment of this Court is set-aside and matter has been remitted to this Court for fresh consideration and also direction is given to expeditiously hear the appeal preferably within a period of 6 months from the date of order. This Court having considered the order passed by the

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Apex Court vide order dated 25.06.2025 framed the following substantive question of law admitting the second appeal:

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(1) Whether the First Appellate Court committed an error in granting the relief of mandatory injunction directing the

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defendant and all persons claiming through or under him to vacate and handover vacant possession of the schedule ‘B’ premises without considering the material on record?

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(2) Whether the First Appellate Court committed an error in granting the relief of permanent prohibitory injunction restraining the defendant causing interference with the peaceful possession and enjoyment of ‘A’ schedule property by the plaintiff or constructing any structure in the plaint ‘A’ schedule property or in the pavement/roadway abutting to the plaint ‘A’ schedule property and the same is against the material available on record?

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(3) What order?

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The counsel appearing for the appellant/1^st defendant in the second appeal would vehemently contend that the main case of the plaintiff before the Trial Court while seeking the relief of mandatory injunction and permanent injunction that the appellant is in permissive

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possession and inspite of his request, he did not vacate the premises and sought for mandatory injunction. The counsel would vehemently contend that the very suit was resisted by rising several grounds in the written statement. Firstly, ownership is disputed and secondly, suit for the relief of mandatory injunction and permanent injunction is not maintainable without seeking the relief of declaration. Thirdly, it is contended that the property belongs to SC/ST and the same is a granted land and there cannot be any sale without the permission. It is also contended that there was an agreement and GPA in favour of defendant No.1 and also 2^nd defendant had executed a Will in favour of defendant No.1. It is contended that defendant is having a subsisting right over the suit schedule property. It is further contended that plaintiff is only a money lender and defendant No.1 availed the loan, but, created the document of sale deed and obtained the sale deed fraudulently. The counsel would vehemently contend that

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defendant/appellant has examined the power of attorney holder as D.W.1 and also marked document Ex.D.1 to Ex.D.4 and Trial Court rightly dismissed the suit answering Issue No.1 to 3 as negative. However, the First Appellate Court committed an error in allowing the appeal and reversed the judgment. The reasoning of the First Appellate Court that the appellant is in permissive possession is not based on the material. Hence, counsel would vehemently contend that suit itself is not maintainable and also cannot seek the relief of mandatory injunction and First Appellate Court committed an error in granting the relief of permanent injunction. The counsel would vehemently contend that P.W.1 categorically admitted in his crossexamination that he is a tenant and paid the rent at the rate of Rs.1,500/- per month for a period of 6 months and the same is not a stray admission as contended by the respondent. The counsel would vehemently contend that suit for bare injunction and mandatory injunction is not

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maintainable. The counsel also would vehemently contend that this Court earlier while disposing of the appeal, held that there is a clear admission that the appellant is a tenant and hence, suit for mandatory injunction and permanent injunction is not maintainable and defendant No.1 has continued the possession as tenant and taken note of admission and hence, question of he is in permissive possession does not arise and hence, this Court has to allow the second appeal and set-aside the order of the First Appellate Court.

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The counsel in support of his argument reiterated the grounds which have been urged earlier that is, the order passed in W.P.No.50983/2015 dated 05.01.2021 and brought to notice of this Court paragraph No.7 with regard to the issue involved between the parties, whether the plaintiff proves that she is a joint owner of the plaint schedule property along with other legal heirs of Late Thomas Velgas as alleged in the plaint. The Court given the

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finding that the finding recorded by the Trial Court that the plaintiff has correctly valued the suit schedule property with regard to the first relief of mandatory injunction under Section 26(a) of the Karnataka Court Fees and Suits Valuation Act, 1958 is erroneous and plaintiffs are liable to value the suit under Section 26(a) of the Act, particularly when there is a issue with regard to the plaintiff’s title over the suit schedule property within the meaning of Section

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26(a)(ii) of the Act.

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The counsel also relied upon the order of this Court reported in ILR 2002 KAR 3512 in case of Pushpa Shivaprasad V/s C.G.Sarojamma and others wherein this Court has held that in a suit for injunction where the defendant disputes the title of plaintiff, fee shall have to be computed ad valorem and half of the market value of the subject matter of the suit or Rs.10,000/- whichever is higher. The counsel re-iterates the principles of these two judgments which earlier he had quoted.

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Per contra, the counsel appearing for the

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respondents in his argument would vehemently contend that Ex.P.6 is the sale deed dated 01.10.2012 and consideration was also paid and counsel would vehemently contend that not only house property, it also includes 5 cents of land. The counsel would vehemently contend that this defendant is a signatory to the sale deed and specifically contended that he was in permissive possession

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with earlier erstwhile owner and he is a licensee and even made the payment of rent also and the same is towards a licensee fee and not as a tenant. The counsel would contend that Ex.P.2-notice was given and reply was given in terms of Ex.P.5. The counsel also vehemently contend that in the written statement, no plea as he was a tenant and whatever the amount paid is not as a rent. The defendant also examined power of attorney holder as D.W.1 and whatever the amount is paid is towards the license charges, not as a rent and at no point of time rent is paid and finding

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of Trial Court is erroneous and Appellate Court rightly reappreciated the material available on record and passed the order.

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The counsel in support of his argument, he relied upon the judgment reported in 2025 SCC OnLine 1665 in case of Kishundeo Rout and Other V/s Govind Rao and

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others and brought to notice of this Court discussion made in paragraph No.24, 25 and 26 wherein it is held that determination in a case should be founded upon the case either to be found in the pleadings as involved in or consistent with the case thereby made out.

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The counsel also relies upon the judgment reported in (2018) 11 SCC 652 in case of Shivaji Balram

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Haibaitti V/s Avinash Maruthi Pawar and brought to notice of this Court paragraph No.23 to 26 and contend that

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the Court has to record findings only on the issues which are the part of pleadings and which parties are contesting the case and must be discussed with regard to its factual

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foundation in the pleading and invite finding on such plea and respondent never claimed that he was in possession of the suit shop as tenant of the appellant’s predecessor in title. On the other hand, the respondent had asserted his ownership right over the suit shop on the strength of his long adverse possession. In paragraph No.26 held that the High Court, however, did not undertake this exercise and rather affirmed these findings when it did not consider it proper to frame any substantive question of law. The respondent did not adduce any evidence to prove that he was in possession of the suit shop as tenant of the appellant’s predecessor in title. In order to prove the tenancy between the respondent and the appellant’s predecessor in title, it was necessary for the respondent to have file rent receipts/lease deed, etc., and also to have examined his landlord who, according to him, had inducted him as a tenant in the suit shop. It was not done. Hence,

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counsel would contend that this judgment is aptly applicable to the case on hand.

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The counsel also relied upon the judgment reported in (2003) 8 SCC 740 in case of Kashinath (Dead) through LR's V/s Jaganath and brought to notice of this Court paragraph No.17 wherein held that when evidence is not in line with the pleadings and is at variance with it, adverse inference has to be drawn and the evidence cannot be looked into or relied upon.

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In reply to this argument, the counsel appearing for the appellant would vehemently contend that the citations in case of Kishundeo Rout and Shivaji Balram Haibaitti which have been relied upon are not applicable to

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the case on hand and the same is with regard to the adverse inference and adverse possession of land. The very case of the plaintiff is inconsistent and plaintiff cannot take inconsistence, but, defendant can take any inconsistent defence. The counsel would vehemently contend that

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Kashinath’s case that is 3^rd citation helps the appellant and

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not helps the respondent.

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Having heard the learned counsel for the

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appellant, the learned counsel for the respondents and also considering the substantive question of law framed by this

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Court, this Court has to analyze the material available on record. Now, the question before this Court is whether the First Appellate Court committed an error in granting the relief of mandatory injunction directing the defendant and all persons claiming through are under him to vacate and hand over vacant possession of the ‘B’ scheduled premises without considering the material available on record and whether the First Appellate Court committed an error in granting the relief of permanent prohibitory injunction restraining the defendant causing interference with the peaceful possession and enjoyment of ‘A’ schedule property by the plaintiff or constructing any structure in the plaint ‘A’ schedule property or in the pavement/road way abutting to

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the plaint ‘A’ schedule property. Having considered the substantive question of law framed by this Court and also the material available on record, it is not in dispute that plaintiff has sought for the relief of mandatory injunction against the appellant on the ground that appellant is in permissive possession and earlier to the purchase of the property from the erstwhile owner and also continued the possession with a promise that he would vacate the premises within 4 months. The main contention of defendant No.1 in the written statement is that not only with regard to the relief is concerned and also the Court fee. The Court was not having jurisdiction to entertain suit for mandatory injunction. In keeping the pleadings of the plaintiff and also the defendant, it is not in dispute that this appellant is in possession of the suit ‘B’ schedule property. The appellant also does not dispute the fact that he was in possession and he took the possession from the erstwhile owner. It is also the contention that there was a sale

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agreement in his favour and consequent upon the same, power of attorney and Will was executed. But, the fact is that there was a sale deed in favour of the plaintiff and the appellant was also a signatory to the sale deed and sale deed was executed in the year 2012. Inspite of he was having a sale agreement, power of attorney and Will, he had affixed his signature on the sale deed. Hence, it is very clear that he had not claimed any right based on those documents having full knowledge and consciously he had signed the said sale deed and what made him to become the signatory to the sale deed and no explanation is offered by the appellant and hence, he cannot disputes the title. The sale deed-Ex.P.6 is very clear that it contains his signature. The relief is also sought for only mandatory injunction as well as permanent prohibitory injunction. This Court earlier also in detail discussed all these issues involved between the parties and comes to the conclusion that no need to file a suit for declaratory relief when the

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appellant himself is signatory to the sale deed and mandatory injunction and prohibitory injunction is maintainable. This Court also in elaborately discussed with regard to the Court fee is concerned. The very case of the plaintiff before the Court is that he had agreed to vacate, but he did not vacate the same, but, his contention is that he is in permissive possession and P.W.1 was also subjected to cross-examination and particularly in the cross-examination in paragraph No.24 while answering Issue No.2, whether the plaintiff proves that defendant No.1 is in permissive possession of the suit schedule property. The Trial Court taken note of answer elicited from the mouth of P.W.1 wherein he categorically admitted that the defendant, defendant’s elder sister and Bhavani were residing. In further cross-examination, admitted that defendant, defendant’s elder sister and Bhavani were also residing and other sisters have not been made as parties,

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because the defendant has continued the possession as a tenant.

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It is also important to note that in the further

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cross-examination, answer is elicited from the mouth of P.W.1 that defendant was paying a rent of Rs.1,500/- per

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month and he used to pay the rent by way of cash and he had paid the rent for a period of 6 months, after purchase of the suit schedule property. It is also important to note that P.W.1 categorically admitted that before purchasing the property, he had inspected the property and further he says that defendant only informed him that he is a tenant. When such admissions are given, the same is not a stray admission as contended by the respondent. Hence, it is clear that case of P.W.1 is that defendant is in permissive possession, but, answer is elicited from the mouth of P.W.1 that he is a tenant. Hence, it is very clear that question of seeking the relief of mandatory injunction does not arise. Though not pleaded by the defendant in the written

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statement that he is a tenant, but, the very admission on the part of P.W.1 takes away the case of the plaintiff with regard to the permissive possession is concerned. 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 in possession of the property to which he may be found to be entitled, however the Court has to take note of the principles laid down in the judgment and also the facts and circumstances of each case since the counsel appearing for the respondent has relied upon the judgment of Apex Court in Sant Lal Jain’s case. No doubt the counsel while arguing the case also relied upon judgment of the Apex Court in the case of Kishundeo Rout and others wherein Apex Court held that the determination in a case should be founded upon the case either to be found in the pleadings as involved in or consistent with the case thereby and no doubt the pleadings is the basis for a case, but, once the plaintiff pleaded that the defendant is in

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permissive possession, but, during the course of crossexamination, he categorically admitted that he was a tenant and even prior to the purchasing of the property he had visited the property and defendant only informed him that he is a tenant and also clear admission that he was a tenant

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and paid the rent and no doubt the other judgment in Shivaji Balram’s case which was referred supra also, it is held that Court has to record findings only on the issue which are the part of pleadings on which parties are contesting the case, so also in a Kashinath’s judgment, when the evidence is not in line with the pleadings and is at variance with it, advance inference has to be drawn and the evidence cannot be looked into or relied upon and the same is also applicable to the case of both plaintiff and defendant. When the evidence is not in line with the pleadings and is at variance with it, adverse inference has to be drawn, but, in the case on hand, plaintiff pleads that defendant is in permissive possession, but, during the course of cross-

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examination, he gave the evidence that he was a tenant and also adverse inference has to be drawn not only against the plaintiff and even against the defendant also. The Court has to take note of the scope and demeanor of the crossexamination and there is an unequivocal admission on the part of the plaintiff that he was a tenant. When such being the case, the very contention of the respondents’ counsel that finding must be only based on the pleadings cannot be accepted. This Court already pointed out that possession is not in dispute, but nature of possession is the crux of the issue. Though plaintiff claims that he is in permissive possession in order to prove the same, even not examined the previous owner. But, unequivocal admission is very clear that he was a tenant and not only he came to know about the same, even prior to the purchasing of the property, through defendant only, he came to know that he was a tenant and subsequently paid the rent as a tenant for a period of 6 months and subsequently, he had purchased

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the property and all these materials clear that he is a tenant. The issue involved between the parties also is whether the Court can grant the mandatory injunction and when there is a clear admission that he is a tenant and he continued as a tenant and paid the rent of Rs.1,500/- per month for a period of 6 months and if it is stray admission then there would have been a force in the argument of respondents’ counsel, but, the same is not the stray admission as contended and hence, the Civil Court has no jurisdiction to grant the relief of mandatory injunction and permanent injunction and ought to have sought for the relief of eviction against the appellant. When the Civil Court has no jurisdiction to entertain the mandatory injunction and permanent injunction, there cannot be any injunction against the appellant also and the same would be under due process of law only and eviction must be made under due process of law invoking the jurisdiction of the Court to grant the relief. Hence, I am of the opinion that First

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Appellate Court committed an error in ignoring the material of unequivocal admission on the part of P.W.1 that there is an existence of tenant and landlord jural relationship between the parties and question of granting the relief of mandatory injunction does not arise. Hence, I answer the substantive question of law as affirmative that First Appellate Court committed an error and it requires interference. However, this Court has taken note of the fact that suit was filed in the year 2014 and almost parties before the Court to get the possession for more than a decade and a direction may be given to the Trial Court in case if any eviction proceedings is initiated and the same has to be considered within a time bound period of one year.

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In view of the discussions made above, I pass the following:

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ORDER

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i) The Second Appeal is allowed .

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ii) Impugned judgment of the First Appellate Court passed in R.A.No.133/2020 dated 13.07.2022 on the file of I Addl. Senior Civil Judge & CJM, Mangaluru, D.K is set-aside. Liberty is given to the plaintiff to approach an appropriate forum seeking for an order of eviction/ejection against the defendant No.1. If such proceedings is initiated, the Trial Court is directed to dispose of the said proceedings within a time bound period of one year.

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Sd/- (H.P. SANDESH) JUDGE

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RHS

Mr Ajay Kumar v. Sri P Shashikumar

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