Sri.K.H.Vittala Vs Sri.D.R.Vijaya

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NC: 2025:KHC:53489 WP No. 2890 of 2023

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16^TH DAY OF DECEMBER, 2025 BEFORE

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THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY WRIT PETITION NO. 2890 OF 2023 (GM-CPC)

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BETWEEN:

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SRI K.H. VITTALA S/O LATE K.C. HOOVAIAH AGED ABOUT 43 YEARS ADVOCATE, R/AT KUSBOOR VILLAGE, BELUR POST SOMWARPET HOBLI SOMWARPET TALUK KODAGU DISTRICT.

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…PETITIONER

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(BY SRI VARAN M, ADV., FOR SRI MURALIDHARA G.S, ADV.)

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AND:

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SRI D.R. VIJAYA S/O LATE SRI RANGAPPA AGED ABOUT 56 YEARS R/AT X-1000/1

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Digitally signed by NANDINI M S Location: HIGH COURT OF KARNATAKA

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MAHADESHWARA BLOCK SOMWARPET TOWN KODAGU DISTRICT.

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THE TOWN PANCHAYAT SOMWARPET REP BY ITS CHIEF OFFICER

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…RESPONDENTS

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(BY SRI BALAJI A.M, ADV., FOR R-1; R-2 SERVED & UNREPRESENTED)

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THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER AT ANNEXURE-E, PASSED ON IA NO.6 DATED 16/1/2023 PASSED BY THE LEARNED PRINCIPAL ADDITIONAL CIVIL JUDGE AND JMFC AT SOMWARPET, IN SUIT O.SNO. 31/2020.

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NC: 2025:KHC:53489 WP No. 2890 of 2023

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HC-KAR

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN B GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY

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ORAL ORDER

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Defendant No.1 is before this Court in this writ petition filed under Article 227 of the Constitution of India with a prayer to set aside the order dated 16.01.2023 passed on I.A.No.VI in O.S.No.31 of 2020 passed by the Court of Principal Addl. Civil Judge and JMFC, Somwarpet.

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Heard.

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The respondent herein has filed O.S.No.31 of 2020 before the jurisdictional civil Court, Somawarpet seeking the relief of mandatory injunction and permanent prohibitory injunction against defendant no.1. In the said suit contesting defendants have filed written statement and opposed the suit claim. I.A.No.VI was filed under Order VI Rule 17 of CPC on behalf of the plaintiff seeking permission of the Trial Court to amend the plaint by incorporating additional prayer to declare that plaintiff is the absolute owner of the suit schedule

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3 - NC: 2025:KHC:53489 WP No. 2890 of 2023

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property. The prayer made in I.A.No.VI was opposed by the contesting defendants by filing objection. The Trial Court vide the order impugned has allowed I.A.No.VI filed in O.S.No.31 of 2020 vide the order impugned. Aggrieved by the same, defendant no.1 is before this Court.

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Perusal of the material on record would go to show that, averments found in the plaint in O.S.No.31 of 2020 would go to show that it is the case of the plaintiff that he is the owner in possession of suit schedule 'A' property and defendant no.1 has encroached a portion of schedule 'B' property and has put up an illegal construction in suit schedule 'B' property. A mandatory injunction is sought by the plaintiff in the suit to direct defendant no.1 to remove the illegal construction put up in suit schedule 'B' property and consequential relief of permanent prohibitory injunction is also sought restraining defendant no.1 from obstructing possession and enjoyment of suit schedule 'A' property. In the said suit I.A.No.VI was filed with a prayer to permit the plaintiff to amend the plaint by incorporating additional prayer to declare that plaintiff is the owner of suit schedule property.

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NC: 2025:KHC:53489 WP No. 2890 of 2023

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5. Defendant No.1 in his written statement has denied

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that he has encroached any portion of suit schedule property. He has also denied that he is putting up construction on suit schedule 'B' property which according to the plaintiff is allotted to his brother's share. In the plaint it is specifically averred that suit schedule 'A' property belonged to Smt. D Laxmamma and she has bequeathed the said property under a registered will dated 28.08.1986 in favour of Smt. D. Balamani, who is the mother of the plaintiff. After death of Smt. Balamani, who had died on 02.09.1986 intestate, the plaintiff and his brother D.R.Yogesh had succeeded to the property belonged to his mother. The property was partitioned between the brothers and suit schedule 'A' property was allotted to the share of plaintiff and suit schedule 'B' property was allotted to his brother D.R. Yogesh. The plaintiff had put up construction in suit schedule 'A' property whereas the property which was allotted to D.R. Yogesh was vacant. Defendant No.1 having encroached a portion of the schedule 'B' property has put up construction which had obstructed free flow of air and light to the house of the plaintiff. It is under these circumstances, suit in O.S.No.31 of 2020 was filed. Application is now filed in the

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NC: 2025:KHC:53489 WP No. 2890 of 2023

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said suit to incorporate additional prayer in the plaint to declare

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that plaintiff is the owner of suit schedule 'A' property.

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The Hon'ble Supreme Court in the case of ANATHULLA SUDHAKAR V. P. BUCHI REDDY (DEAD) BY LRS & ORS - AIR 2008 SC 2033 has observed that in a suit for injunction simpliciter, 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. But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title 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 the question of title, in a suit for injunction. Even where there are necessary pleadings and

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NC: 2025:KHC:53489 WP No. 2890 of 2023

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issue, if the matter involves complicated questions of fact and

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law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction."

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In the present case, the plaintiff has made specific averments in the plaint with regard to title in respect to the suit schedule 'A' property. It is based on his title he has sought the relief of mandatory injunction and consequential relief of permanent injunction. The prayer made for amendment by incorporating a amended prayer in the suit will not change the nature of the suit or the cause of action for the suit.

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The Hon'ble Supreme Court in the case of LIFE INSURANCE CORPORATION OF INDIA VS SANJEEV BUILDERS PRIVATE LIMITED & ANR. - (2022) SCC ONLINE SC 1128 has held that the Courts should be normally liberal, while considering an application for amendment of the pleadings in order to avoid multiplicity of litigation. It is also held in the said case that the Courts must avoid hyper technical approach while considering an application seeking amendment of pleadings. The Trial Court having appreciated this aspect of the matter has

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NC: 2025:KHC:53489 WP No. 2890 of 2023

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rightly allowed I.A.No.VI filed on behalf of the plaintiff in O.S.No.31 of 2020. The contesting defendants always have a liberty to oppose the additional prayer by filing additional written statement if they are so advised. The application seeking amendment was filed at the stage of plaintiff's evidence and therefore it cannot be said that the said application was filed belatedly. Under these circumstances, I do not find any good ground to entertain this petition.

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Accordingly, the writ petition is dismissed.

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Sd/(S VISHWAJITH SHETTY) JUDGE

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NMS/List No.: 1 Sl No.: 43

Sri.K.H.Vittala v. Sri.D.R.Vijaya

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Sri.K.H.Vittala v. Sri.D.R.Vijaya

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