Smt Revamma Vs Sri E Shivraj

THIS RFA IS FILED UNDER SECTION 96 OF CPC. 1908 AGAINST THE JUDGMENT AND DECREE DATED 04.03.2023 PASSED IN OS. No. 16394/2004 ON THE FILE OF THE XIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYOHALL UNIT, BENGALURU, DISMISSING THE SUIT FOR INJUNCTION.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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ORAL JUDGMENT

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The captioned appeal is by the unsuccessful plaintiffs who are assailing the judgment and decree rendered in O.S.No.16394/2004, wherein trial Court on appraisal of oral and documentary evidence has recorded a finding that plaintiffs were not in possession as on the date of filing of the suit and the records relied on by the plaintiffs reveal that defendant's father was in permissive possession as per Ex.P-20.

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For the sake of brevity, the parties are referred

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to as per their rank before the trial Court.

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3. Facts leading to the case are as under:

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The plaintiffs instituted O.S.No.16394/2004 seeking a decree of permanent injunction. The original plaintiff pleaded that her father-in-law, Siddaraju, had purchased the suit schedule property under a registered sale deed dated 12.09.1914. Upon his demise, the property was partitioned among his widow and three sons under a registered partition deed dated 09.09.1971. In the said partition, a portion measuring 165 feet × 150 feet fell to the share of the plaintiff’s husband, who, according to the plaint averments, was in exclusive possession and enjoyment thereof. It was further pleaded that the suit schedule property stood in the name of the plaintiff’s husband and that to the southern side of the property there existed a slum, separated by a 15-feet-wide passage. Alleging that on 01.09.2004 the defendant

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attempted to trespass and dig trenches for laying the foundation of a building, the suit for injunction came to be filed.

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The defendant initially remained absent and the suit was decreed ex-parte. Subsequently, the defendant filed an application under Order IX Rule 13 of the Code of Civil Procedure, which was allowed, resulting in the exparte decree being set aside and the suit being restored. Thereafter, the defendant entered appearance and filed a written statement, denying in toto the plaint averments. The defendant asserted that he was in possession of property bearing No.30, which had been granted in his favour, and that at the time of such grant there existed a hut which, being in a dilapidated condition, was demolished and replaced by a residential house constructed by him. On these grounds, the defendant sought dismissal of the suit.

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During the pendency of the suit, the plaintiffs

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alleged that the defendant had illegally put up a residential house on the suit schedule property and, on that premise, sought amendment of the plaint to include the relief of mandatory injunction.

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Both parties adduced oral and documentary evidence in support of their respective claims. The Trial Court, on appraisal of the material on record, particularly Ex.P-20, recorded a finding that the plaintiff’s husband had permitted the defendant’s father to occupy the property and that such occupation was permissive in nature. On that basis, the Trial Court held that since the plaintiffs

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were not in possession as on the date of institution of the suit, a suit for injunction simpliciter was not maintainable and that the subsequent relief of mandatory injunction sought by way of amendment was also impermissible. On these grounds, the Trial Court proceeded to dismiss the suit.

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Learned counsel for the plaintiffs, reiterating

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the grounds urged in the appeal memorandum, contended that during the course of trial the plaintiffs had filed an application under Order XXIII Rule 1 of the Code of Civil Procedure seeking permission to withdraw the suit with liberty to file a fresh suit on the same cause of action. He submitted that the said application came to be rejected by the Trial Court by order dated 06.02.2023. Drawing attention to Grounds Nos.12 and 13 of the appeal memo, he submitted that the rejection of I.A.No.18 has been specifically assailed in the present appeal. He further argued that in view of the findings recorded by the Trial Court while dismissing the suit, the plaintiffs are entitled to institute a comprehensive suit seeking appropriate declaratory and consequential reliefs, including recovery of possession, particularly when the defendant is alleged to have demolished the earlier shed and put up a permanent residential structure, as reflected in Ex.P-20.

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Per contra, learned counsel appearing for the defendant vehemently opposed the appeal, contending that the defendant had acquired title pursuant to a grant made in his favour and that the Trial Court has rightly adverted to the said aspect while dismissing the suit. He further contended that at the appellate stage, the plaintiffs cannot be permitted to withdraw the suit with liberty to file a fresh one and sought dismissal of the appeal without granting any such liberty.

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This Court has given its anxious consideration to the submissions advanced by the learned counsel on both sides and has independently examined the pleadings, oral evidence, and documentary material on record. Upon meticulous scrutiny of the entire record, the following points arise for consideration:

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i) Whether the finding of the Trial Court that the plaintiffs could not maintain a suit for injunction simpliciter, and consequential

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mandatory injunction, in the light of the evidence on record, suffers from perversity?

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ii) Whether the plaintiffs have made out a case for grant of liberty at the appellate stage to institute a fresh suit on the same cause of action?

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iii) What order?

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Finding on Point No.i:

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The plaintiffs have instituted the present suit seeking a decree of permanent injunction simpliciter and, subsequently, by way of amendment, sought the additional relief of mandatory injunction. However, during the course of trial, the plaintiffs themselves placed strong reliance on Exs.P-19(a) and P-20, which are the darakastu register extract and the survey sketch, respectively. On a careful scrutiny of these documents, particularly Ex.P-20, it clearly emerges that the very foundation of the plaintiffs’ claim for injunction and mandatory injunction stands

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demolished by their own evidence. The survey sketch unmistakably depicts that the defendant’s father was in permissive possession of the disputed portion, such permissive possession having been conferred by the plaintiff’s husband. If the defendant’s father was in permissive possession as early as in the year 2001, it necessarily follows that the plaintiffs were not in possession as on the date of institution of the suit. In the absence of possession, the plaintiffs did not have a valid cause of action to seek either a decree of permanent injunction or a decree of mandatory injunction.

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It is in this factual background that the Trial

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Court, on a proper appreciation of the pleadings and the oral and documentary evidence on record, has rightly held that the plaintiffs could not have maintained a bare suit for injunction. The Trial Court has further held that the consequential relief of mandatory injunction also could not have been entertained, as the same runs directly contrary to Ex.P-20, which conclusively evidences permissive

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possession of the defendant’s father. The Trial Court has

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thus dismissed the suit on the ground of absence of possession on the part of the plaintiffs as on the date of filing of the suit.

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This Court has also adverted to Ex.P-1, the certified copy of the registered partition deed. The said document clearly discloses that under the partition, the original plaintiff’s husband was allotted an area measuring 165 feet × 150 feet. However, the Trial Court, having regard to the nature of the suit, has not entered into an adjudication on title. Instead, it has placed strong reliance on Ex.P-20, the survey sketch, to conclude that the plaintiffs were not in possession as on the date of filing of the suit and that, therefore, the suit in the present form was not maintainable. The dismissal of the suit is thus not on the basis of adjudication of title, but solely on the ground of lack of possession. Accordingly, point No.i is answered in affirmative .

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Finding on Point No.ii:

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In this backdrop, this Court, sitting in appeal, is

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required to examine whether the plaintiffs can be permitted, at this stage, to withdraw the suit with liberty to file a fresh suit, particularly in light of the rejection of their application filed under Order XXIII Rule 1 of the Code of Civil Procedure by order dated 06.02.2023 passed on I.A.No.18. It is well settled that an appellate Court is vested with the power, in an appropriate case, to grant permission to withdraw a suit with liberty to institute a fresh suit on the same cause of action. However, such power, especially in an appeal under Section 96 of the Code of Civil Procedure, must be exercised with circumspection and only where the ends of justice so demand.

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On a conjoint reading of Ex.P-1, the registered partition deed, and Ex.P-20, the survey sketch drawn at an undisputed point of time, this Court is of the considered

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view that there has been no conclusive adjudication of the

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rights or title of the defendant in the present proceedings.

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The Trial Court has also not undertaken any adjudication with regard to the plaintiffs’ title, for the obvious reason

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that the suit was one for injunction simpliciter. The dismissal decree has been passed solely on the ground that the plaintiffs were not in possession as on the date of filing of the suit, a finding recorded on the basis of Ex.P-20, which evidences permissive possession. Therefore, if permission is granted to withdraw the suit at this stage, it cannot be said that such permission would have the effect of nullifying or obliterating the findings recorded by the Trial Court on the issues that arose for consideration in the suit.

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The core and determinative finding of the Trial Court is that the plaintiffs were not in possession as on the date of institution of the suit. This finding is based entirely on Ex.P-20, a document relied upon by the plaintiffs themselves. There is no adjudication on the defendant’s

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right, title, or interest in the property. The suit being one

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for injunction simpliciter, the plaintiffs’ title and their entitlement to seek possession on the strength of such title could not have been adjudicated. The dismissal decree, though not conferring any positive declaration in favour of the defendant, undoubtedly operates to the prejudice of the plaintiffs insofar as their right to seek possession is concerned. The plaintiffs have placed material to prima facie demonstrate their title, and significantly, no plea of adverse possession has been raised by the defendant in the present suit. This Court has consistently held that where title is not in dispute or has not been adjudicated, a lawful owner is entitled to seek recovery of possession based on title. In these circumstances, this Court is of the view that permitting the plaintiffs to withdraw the present suit with liberty to institute a comprehensive suit would neither destroy the dismissal decree nor amount to reopening issues finally decided.

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Certain additional aspects also merit

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consideration. Though the defendant has asserted that he has constructed a residential house pursuant to a grant made by the Karnataka Slum Board, this issue has not been adjudicated in the present proceedings, as the suit was confined to reliefs of injunction and mandatory injunction. If liberty is reserved to the plaintiffs to file a comprehensive suit, the defendant would also have a full and fair opportunity to establish that the construction now standing is within the extent granted to him by the Slum Board and that he has acquired valid title thereunder. Thus, no serious or irreversible prejudice would be caused to the defendant by granting such liberty. On the contrary, granting liberty would ensure a complete and effective adjudication of the real dispute between the parties. In that view of the matter, to secure the ends of justice and

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to prevent miscarriage of justice, this Court is inclined to permit the plaintiffs to withdraw the suit with liberty to file

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