Sri K M Arunkumar Vs Sri Srinivasa Reddy

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NC: 2026:KHC:10587 RFA No. 1030 of 2018

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20^TH DAY OF FEBRUARY, 2026

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BEFORE

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THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE REGULAR FIRST APPEAL NO. 1030 OF 2018 (INJ)

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BETWEEN:

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SRI K M ARUNKUMAR, S/O LATE K V MALIYAPPA, AGED ABOUT 46 YEARS, RESIDING AT NO.422A, HONGASANDRA MICO LAYOUT, 13^TH MAIN BEGUR ROAD, BANGALORE - 560 068.

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…APPELLANT

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(BY SRI M U POONACHA, ADVOCATE)

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AND:

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Digitally signed by PRAMILA G V Location: HIGH COURT OF KARNATAKA

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SRI SRINIVASA REDDY, S/O A PILLAREDDY, AGED ABOUT 38 YEARS,

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SMT MAHALAKSHMI, W/O SRI SRINIVASA REDDY, AGED ABOUT 34 YEARS,

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BOTH ARE RESIDING AT NO.11, 1^ST MAINM 9^TH CROSSM MARUTHINAGAR, MADIWALA, BANGALORE - 560 068.

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…RESPONDENTS

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(BY SRI A C CHETHAN, ADVOCATE FOR R1 AND R2)

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THIS RFA IS FILED UNDER 41 RULE 1 R/W SEC.96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 09.03.2018 PASSED IN OS.NO.3805/2011 ON THE FILE OF THE XXXV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,

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HC-KAR

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BENGALURU, DECREEING THE SUIT FOR PERMANENT INJUNCTION.

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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ORAL JUDGMENT

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The defendant is in appeal assailing the decree for injunction in respect of Site No.855 formed in Survey No.56/3/4,/5B/7,8 (as per the Old Madiwala Notified Area records) and Sl.No.849 of Bommanahalli CMC Form III (Rule 20) and Sl. No.148 and No.877/863/849/855 as per the BBMP records.

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There is no dispute that the suit property is located

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in MICO Layout, Bengaluru. The boundaries of the property are shown as under:

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East : Site No.854 West : Private Land North: Private Land and South: Road.

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NC: 2026:KHC:10587 RFA No. 1030 of 2018

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The plaintiffs claim to have purchased the property under a registered sale deed dated 27.10.2010. The plaintiffs trace the title to the suit property under the previous sale deed dated 27.10.2010 in favour of their vendor A. Pious and claims that A.Pious purchased the property from his vendor R.Manjunatha under a registered sale deed dated 15.12.2004. According to the plaintiffs, R.Manjunatha purchased the property on 16.01.1996 from Bengaluru MICO Shramajeevi Karmikara Gruha Nirmana Sahakara Sangha Niyamitha, a Housing Co-operative Society. The execution of the said sale deeds in favour of the plaintiffs or the plaintiffs' vendor by the plaintiffs' vendor's vendor are not in dispute.

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The defendant claims to be the owner and in possession of Site bearing No.854. According to the plaintiff, Site No.854 is located to the East of the suit property. In other words, the suit property and the property of the defendant are the adjoining properties.

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The defendant claims to have purchased the

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property under the registered sale deed dated 26.02.2007 and in his written statement has also traced the flow of title and

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originally the property happened to be the property formed in the aforementioned layout by the aforementioned housing Co-operative society.

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From the pleadings and evidence placed on record, it is also noticed that even the plaintiffs are not disputing the fact that the defendant has purchased the Site No.854 which is located on the eastern side of the suit property.

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Plaintiffs alleging interference by the defendant in

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respect of the suit property, filed a suit for bare injunction.

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The defendant contested the suit and asserted that

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though the plaintiffs have purchased the suit property, the relief is sought in respect of the property which is in fact a part of Site No.854.

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The defendant also raised a contention that to the West of the suit property bearing Site No.855, the father-in-law of plaintiff No.1 and the father of plaintiff No.2 possessed adjacent site to Site No.855 and he had encroached upon a portion of Site No.855 and to grab the said portion and to make it a part of his own property, he instigated his daughter plaintiff

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No.2 to purchase Site No.855. And after having purchased Site No.855, the plaintiffs started asserting the portion of the property in possession of Kodandarama on the eastern side, as boundary of Kodandarama's property and thus would urge that the plaintiffs are laying claim over the property of the defendant on the Eastern side.

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Both the parties led evidence before the Trial Court by producing their respective title deeds. It appears that Court Commissioner was appointed to submit the report relating to the location and identification of the property. The Court Commissioner has submitted the report in which he has indicated that he is not in a position to identify the suit property.

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The plaintiffs objected to the report of the Court Commissioner and has cross-examined. The Trial Court on appreciation of the evidence on records has concluded that the plaintiffs are in possession of Site No.855 and has decreed the suit.

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Aggrieved by the aforementioned judgment and decree, the defendant is in appeal.

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Learned counsel appearing for the defendant/ appellant raised the following contention:

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13.1 The suit is essentially a boundary dispute. Since the plaintiffs claim right over the property of the defendant, the Court Commissioner was appointed to identify the property and to find out whether the suit property over which the plaintiffs are claiming the right, is indeed the property purchased by the plaintiffs or is in the part of the property purchased by the defendant.

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The Court Commissioner has reported that he is not in a position to identify the suit property. This being the position, it is the contention of the learned counsel for the defendant/appellant that, the suit should have been dismissed as the plaintiffs are not in a position to establish the suit property with reference to the boundary.

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Elaborating his submission, learned counsel for the defendant/appellant would also urge that, when the suit was filed, both properties are adjoining sites and when there is serious dispute relating to the identity of the property and the possession, it was incumbent upon the plaintiffs to seek the

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relief of declaration of title and the suit being defective for want of appropriate declaration, the suit is not maintainable.

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To substantiate the contention, learned counsel for the defendant/appellant has placed reliance on the judgment of the Hon'ble Apex Court in Anathula Sudhakar vs. P. Buchi Reddy (Dead) by L.Rs and Others¹ . Referring to paragraph No.17 of the said judgment, learned counsel for the defendant/appellant also urged that the plaintiffs were required to claim an appropriate relief of declaration relating to the identity of the property, ownership as well as his possession of the property and that being not done, the Court could not have been granted the decree for injunction.

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Learned counsel appearing for the plaintiffs/ respondents raised the following contentions:

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17.1 Admittedly, the suit is in respect of site which is formed in a layout. Formation of layout is not in dispute. The layout is developed by the Housing Society is not in dispute.

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1 AIR 2008 SC 2033

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Thus, the Society had title over the sites under the aforementioned layout.

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17.2 The fact that one of the sites i.e. Site bearing No.855 is allotted to one of the members of the Housing Co-operative Society and later, it sold to one Manjunath and Manjunath sold it to A.Pious and thereafter to the plaintiffs is not in dispute.

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17.3 The defendant is the neighbouring owner and his site number is 854 and the suit is filed only in respect of Site No.855 and there was no cloud over the plaintiffs’ title. Thus, there was no need for the plaintiffs to seek the relief of declaration of title.

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It is also urged on behalf of the plaintiffs/ respondents that, though the Court Commissioner was appointed and though has submitted a report stating that he is not in a position to identify the property, the Commissioner has been cross-examined by the plaintiffs and the Commissioner in his cross-examination has stated that he is not in a position to identify the site because the numbers were not mentioned in the site.

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It is the contention of the learned counsel for the plaintiffs/respondents that, merely because the Commissioner is not in a position to identify the sites because of site numbers are not mentioned in the sites, it does not mean that the properties are not identifiable and it is also his further submission that the Commissioner's report was not required in a case of this nature as the plaintiffs filed a suit in respect of a validly approved layout and the suit for bare injunction is certainly maintainable as there is no cloud over the plaintiffs’ title.

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The Court has considered the contentions raised at the Bar and perused the records.

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The following points arise for consideration:

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i) Whether the defendant/appellant establishes that the suit without appropriate relief of declaration is not maintainable?

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ii) Suit for simple injunction without appropriate relief of declaration is not maintainable?

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The Court has considered the judgment cited by the

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learned counsel for the defendant/ appellant in Anathula

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Sudhakar (supra). The relevant paragraph would be paragraph No.17 and the same reads as under:-

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"17. To summarise, 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 the 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 the plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.

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(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.

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(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 matter involves complicated questions of fact and 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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(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

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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."

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(Emphasis supplied)

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From the ratio laid down in the aforementioned judgment, it is noticed that, in case there is a cloud over the plaintiffs' title or the possession of the property, it is necessary for the plaintiff to file a comprehensive suit for declaration of title and injunction or declaration and injunction. The aforementioned judgment does not mandate that in all circumstances the plaintiff is required to file a suit for injunction and suit for injunction without appropriate declaratory relief is not maintainable.

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The judgment broadly indicates as to when the appropriate relief of declaration has to be sought and appropriate relief of possession has to be prayed by the party to the proceedings.

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The question is; whether the plaintiffs in this case are required to file a suit for declaration and injunction merely

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because the sites were vacant when the suit was filed. The Court is of the view that, the judgment does not lay down the ratio that, in case the suit is in respect of a vacant site there has to be an appropriate relief of declaration and injunction. The paragraph No.17(d) of the aforementioned judgment would clearly indicate that, even in a suit for injunction the Court may incidentally refer to the question of title in case the case is simple and straightforward.

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In the instant case, as already noticed, the plaintiffs claim to have purchased the property in an approved layout, so also the defendant claims to have purchased the property in an approved layout. Though the suit is for bare injunction in respect of a vacant site, the formation of layout is not disputed. Existence of Site No.855 in the layout is not disputed. Thus, the Court is of the view that there is no need for the plaintiffs to seek the relief of declaration of title as urged by the learned counsel for the defendant/appellant.

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From the cross-examination of the Court

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Commissioner, one can infer that, the person who was appointed as Commissioner was a BBMP Engineer and not

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necessarily a surveyor. Probably for want of mentioning of site numbers on the spot he could not identify the property. It is also noticed from the cross-examination that he has not measured the property as required for the purpose of identification of the property.

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The Court should have appointed a Survey Commissioner, if it was really required. However, in the facts and circumstances of the case, the Court is also of the view that said exercise is unnecessary given the fact that the suit property is in the approved layout.

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Since existence of Site No.855 and Site No.854 are not in dispute, and given the fact that both sites are adjoining sites, the Court is of the view that the decree for injunction granted by the Trial Court is only confined to Site No.855 and not beyond that. Since the extent of Site No.855 in terms of its length and breadth can be easily referred to with reference to the approved layout plan, there is no need for the plaintiffs to file a suit for declaration of title.

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