Muddappa Vs Kenchappa

THIS REGULAR SECOND APPEAL IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 5.4.08 PASSED IN R.A.NO 66/02 ON THE FILE OF THE CIVIL JUDGE, (SR.DN), HOLALKERE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD 2.4.02 PASSED IN OS 238/2000 ON THE FILE OF THE PRL. CIVIL JUDGE, (JR.DN), HOSDURGA. TRAIL COURT DISMISSED THE SUIT.APPELLATE COURT ALLOWED THE APPEAL SUIT FOR PERMANENT INJUNCTION.

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

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CORAM: HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

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ORAL JUDGMENT

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This appeal is preferred by the defendants in O.S.No.238/2000 aggrieved by the judgment and decree dated 05.04.2008 passed in R.A.No.66/2002 by the Civil Judge (Sr. Dn.) at Holalkere, whereby the First Appellate Court allowed

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the appeal filed by the respondent-plaintiff and set-aside the judgment and decree of the trial Court, which had dismissed the suit in O.S.No.238/2000 vide order dated 02.04.2002.

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2. The parties to the proceedings shall be referred to the plaintiff and the defendants, for the sake of brevity.

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3. The brief facts of the case are as follows:

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The plaintiff filed a suit for permanent injunction restraining the defendants, their men, agents, servants from

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interfering with the peaceful possession and enjoyment of the

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suit schedule property and for other consequential reliefs.

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3.1. The plaintiff and his younger brother DaraMadapa are the owners in possession of suit schedule property and that the plaintiff purchased the suit schedule property from Lakkamma, W/o. Siddappa and her son Nagappa, S/o. Siddappa vide registered sale deed dated 10.06.1975 for valuable sale consideration. It is also the case of the plaintiff that he and his brother are enjoying the suit schedule property in their own right as owners by paying land revenue to the Government. The Khata of the suit schedule property has been changed in the name of plaintiff. The defendants have absolutely no manner of right, title or interest or possession over the suit schedule property. Though the defendants are cousins of the plaintiff, are making hectic efforts to interfere with the peaceful possession and enjoyment of the plaintiff over the suit schedule property. It is also the case of the plaintiff that he has put up bunds on the suit schedule property with an intention to arrest the flow of water and to arrest the erase of soil. The father of the plaintiff and the father of the defendants, namely Madallappa, deceased Ramappa and deceased

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Kariyappa and deceased Basappa did not have any landed properties at Lakkihalli village except the house which has been divided between the father of the plaintiff and the father of the defendants long back.

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3.2. It is the case of the plaintiff that the defendants and

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their father came to Lakkihalli village 10 years back for coolie work and settled at Lakkihalli village. It is the plaintiff and his brother who purchased the suit schedule property by rendering service at Guddada Neralekere village and Honnehalli Village. The defendants in the active support of the persons, who are enimical with the plaintiff, came near the suit schedule property and attempted to interfere with the plaintiff’s peaceful possession and enjoyment over the suit schedule property. Hence, the acts of the defendants were highly illegal. In order to prevent their interference, the plaintiff filed a suit for permanent injunction against the defendants.

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3.3. Upon issuance of notice and summons to the defendants, they appeared before the Court; defendant No.1 filed the written statement and the same was adopted by defendant Nos.2 and 3. The defendants denied the averments

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made in the plaint including the purchase of the property in the individual capacity of plaintiff from Lakkamma and Nagappa under the registered sale deed dated 10.06.1975. However, the defendants admitted the relationship of their father with the plaintiff's father and their relationship with the plaintiff. The defendants took up a plea that their father Madallappa was also residing in Lakkihalli village and enjoying the suit schedule property towards half portion of the western side and contended that they are in possession and enjoyment of the same as owners and by paying land revenue to the Government. It is a pleading of the defendants that one Madihalli Kariyajja had five sons and four daughters namely Ramappa, Byrappa, Kariyappa, Basappa, Madallappa, Guddada Kariyamma, Ramajji, Lakkajji and Ningamma.

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3.4. It is further pleaded that Basappa died prior to his marriage and that Kariyajja was having suit schedule land and one house measuring 4 ankanas. It is also pleaded that Madihalli Kariyajja had borrowed a loan for the purpose of family necessity, for which consent was given by Ramajja and Kariyappa to discharge a loan by way of selling the suit schedule property. It is further pleaded that the father of the

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plaintiff and the father of the defendants jointly sold the entire suit schedule property in favour of their sister namely Lakkamma for discharge of loan nominally. Thereafter, they registered the sale deed in respect of the suit schedule property in the name of father of the plaintiff. The father of the plaintiff is the elder brother of the defendants' father. It is further pleaded that pursuant to the sale deed, their respective fathers were enjoying the suit schedule property as joint owners. They also pleaded that the suit is not maintainable and sought for dismissal of the suit.

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3.5. Based on the pleadings, the trial Court framed the following issues for consideration:

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" 1 . ªÁ¢ ªÀÄvÀÄÛ CªÀ£À vÀªÀÄä zsÀªÀÄðzÀ¥Àà EªÀgÀÄ zÁªÁ D¹ÛAiÀÄ ¸Áé¢üÃ£ÀzÀ°è EgÀÄvÁÛgÉ CAvÁ gÀÄdÄªÁvÀÄ¥Àr¸ÀÄvÁÛ£ÉAiÉÄÃ?

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¥ÀæwªÁ¢AiÀÄgÀÄ ªÁ¢UÉ zÁªÁ D¹ÛAiÀÄ ¸Áé¢üÃ£À C£ÀÄ¨sÉÆÃUÀPÉÌ vÉÆAzÀgÉ ªÀiÁqÀÄwÛzÁÝgÉ CAvÁ ªÁ¢AiÀÄÄ gÀÄdÄªÁvÀÄ¥Àr¸ÀÄvÁÛ£ÉAiÉÄÃ?

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ªÁ¢AiÀÄ zÁªÉAiÀÄÄ PÁ£ÀÆ¤£À ¥ÀæPÁgÀ HfðvÀ C®èªÉÃ ?

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ªÁ¢AiÀÄÄÄ zÁªÉAiÀÄ ¥ÀPÁëPÁgÀgÀ PÉÆgÀvÉ¬ÄAzÀ PÁ£ÀÆ¤£À ¥ÀæPÁgÀ HfðvÀ C®èªÉÃ ?

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ªÁ¢AiÀÄÄÄ zÁªÉAiÀÄ°è PÉÃ½zÀAvÉ rQæ ¥ÀqÉAiÀÄ®Ä CºÀð£ÀÄ EgÀÄvÁÛ£ÉAiÉÄÃ ?

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AiÀiÁªÀ DYÉÕ CzsÀªÁ rQæ ?"

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3.6. On the basis of the issues, the plaintiff led evidence to establish the issues and to prove his case, he examined himself as PW.1 and other two witnesses as PW.2 and PW.3 and got marked Exs.P1 to P12. The defendants examined six witnesses as DW.1 to DW.6 and got marked Exs.D1 to D4.

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3.7. On the basis of the evidence adduced by the plaintiff and the defendants, the trial Court, on consideration of the issues, came to the conclusion that the plaintiff failed to establish his possession and enjoyment over the suit schedule property and also the defendants having interfered with the plaintiff's peaceful possession and enjoyment over the suit schedule property. Hence, the suit of the plaintiff is not maintained in law and found that the plaintiff was not entitled to a decree as sought for and accordingly, dismissed the suit of the plaintiff.

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3.8. Aggrieved by dismissal of the suit, the plaintiff approached the First Appellate Court by filing an appeal in R.A.No.66/2002. The First Appellate Court issued notice; the defendants appeared before the Court; contested the matter and upon reconsideration and re-analyzation of the entire

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matter once again, framed the following points for

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consideration:

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"1. Whether the lower court is justified in dismissing the suit of plaintiff?

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2. Whether the Judgment and Decree of the lower court is required to be interfered with in this appeal?"

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3.9. The First Appellate Court, in order to appreciate the

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materials placed on record i.e., both oral and documentary and the contentions and submissions of learned counsel for both the parties, came to the conclusion after hearing the arguments of learned counsel for both the parties that the trial Court has committed an error in dismissing the suit of the plaintiff by ignoring the fact that the suit was filed for bare injunction and that the plaintiff, by adducing evidence and producing the relevant documents, has proved his case and whereas on the contrary, learned trial Judge has misconstrued the entire suit itself to be that of a declaratory suit rather than restricting the suit for the relief of permanent injunction and has exceeded its scope and delved into the irrelevant issues, which were not relevant for deciding the suit. The First Appellate Court also came to the conclusion that as per the averments made in Ex.P1, it cannot be said that it is a nominal sale deed as it is a

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simple sale deed executed by the vendor in favour of the plaintiff and accordingly, came to the conclusion that the judgment and decree passed by the trial Court is capricious, perverse, opposed to law and without proper appreciation of the materials on record i.e., both oral and documentary. It also came to the conclusion that the dismissal of the suit is not justified and accordingly, answered in favour of the plaintiff, thereby allowed the appeal preferred by the plaintiff. Consequently, set aside the judgment and decree of dismissal and decreed the suit of the plaintiff without costs.

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3.10. It is this order of the First Appellate Court, which set aside the judgment and decree of the trial Court, which is now questioned by the defendants before this Court in this Second Appeal.

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4. Learned counsel Sri H.P.Leeladhar appearing for the appellants-defendants vehemently contends that the First Appellate Court has committed a serious error and illegality and perversity in passing the impugned order by allowing the appeal of the plaintiff and setting aside the well-reasoned judgment rendered by the trial Court. It is also contended by

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learned counsel that the plaintiff has approached the Court with unclean hands and has also suppressed the relationship between the parties. Therefore, when the plaintiff approaches the Court with unclean hands and by suppressing material facts including relationship of the parties, the plaintiff would not be entitled to any favourable and equitable relief from the hands of the Court. It is further contended by learned counsel that the father of the defendants and the father of the plaintiff are brothers, who had a common father by name Madihalli Kariyajja and they were in joint family ancestral property before the subject property came into possession of the plaintiff and acquisition of the suit schedule property by the plaintiff on 10.06.1975.

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4.1. It is also contended that the said property is not absolute property of the plaintiff as there was no absolute sale and it was only a repayment of loan, for which the property was registered in the name of the plaintiff. Therefore, it is contended by learned counsel that the suit schedule property is an ancestral joint family property. No partition has taken place admittedly. Therefore, it is a joint family property where the defendants are also in the joint possession.

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4.2. It is further contended by learned counsel that the evidence of PW.2 clearly demonstrates that the plaintiff is managing the family property, which is in joint possession, as a Manager. Further, it is contended that as per Ex.D1, it is proved that there was an existence of division of property between the plaintiff and the defendants, which has been noted by the trial Court and accordingly, dismissed the suit of the plaintiff as there was no merit.

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4.3. Learned counsel further contends that the defendants proved their case through oral and documentary evidence to clearly demonstrate that the plaintiff is not in exclusive possession of the suit schedule property and that he is in possession as per Ex.D1. Learned counsel further contends that along with the evidence of the defendants i.e., DW.1 to DW.6 and production of Ex.D1, the evidence of PW.1 to PW.3 has been taken into consideration by learned trial Judge, which was not credit worthy and accordingly, dismissed the suit. It is the further contention that the defendants having proved their case and demonstrated that the plaintiff is not in exclusive possession of the suit schedule property and is only in alleged possession as per Ex.D1-Palu Parikath, the First Appellate Court

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has ignored all these crucial relevant aspects of the matter, which has been meticulously gone into by the trial Court and has erroneously allowed the appeal by setting aside the judgment and decree of the trial Court relying upon the weakness of the defendants rather than the case made out by the plaintiff or on the strength of the plaintiff. Therefore, learned counsel contends that the judgment and decree passed by the First Appellate Court allowing the appeal and decreeing the suit of the plaintiff is perverse, illegal and contrary to the materials evidence on record, both oral and documentary, so also the pleadings.

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4.4. It is further contended by learned counsel that even according to the evidence of PW.1 to PW.3, suit schedule property is clearly an ancestral joint family property, which would negative the claim of the plaintiff that he is in exclusive possession as owner of the suit schedule property. Learned counsel further contends that Ex.D1 exhibits joint family status. It is also contended that the First Appellate Court has failed to consider the relationship of the plaintiff and the defendants even prior to the execution of the sale deed. Learned counsel further contends that the First Appellate Court has committed

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serious error by coming to a conclusion that the suit schedule property is the property of plaintiff and he is in exclusive possession and enjoyment of the same. Therefore, total misreading of the material evidence placed on record, oral and documentary, by the First Appellate Court has resulted in miscarriage of justice.

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4.5. Learned counsel for the appellant has also relied on

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the following citations in support of his case:

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i) K.S.Satyanarayana vs. V.R.Narayna Rao reported in ILR 1999 KAR 3701; and

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ii) The Tehsildar, Urban Improvemetn Trust and anr. vs. Ganga Bai Menariay (Dead) thorugh Lrs. and others reported in 2024 INSC 121 .

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5. Per contra , learned counsel for the respondents

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sustains the impugned order of the First Appellate Court by contending that there is no illegality or perversity in the judgment of the First Appellate Court. It is further contended that the trial Court has misunderstood the relief sought for by the plaintiff, which was for the grant of permanent injunction and so also the trial Court has committed a serious error in exceeding its jurisdiction and going on to decide the suit as if it was a suit for title and a declaratory relief. Learned counsel

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also contends that when a suit is filed for bare injunction seeking for the relief of not to interfere in the peaceful possession and enjoyment of the suit schedule property of the plaintiff, the trial Court is required to see only if the possession has been made out as on date of filing of the suit; if there is any interference by the defendants over the plaintiff’s peaceful possession and enjoyment of the suit schedule property; whether a valid case is made out for grant of such a relief and whether passing of such an order would not cause any adverse interest or loss to the defendants.

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5.1. It is further contended by learned counsel for the plaintiff that the trial Court was required to see whether the plaintiff was in lawful possession and enjoyment of the suit schedule property and if the defendants had interfered in his peaceful possession and enjoyment. Instead of doing that exercise, the trial Court went on to decide the title of the suit schedule property and the genuineness of the document of sale deed of the plaintiff.

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5.2. Learned counsel further contends that admittedly the defendants have not filed any counter claim claiming any

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declaratory relief or for that matter counter relief against the plaintiff over the suit schedule property. Though pleadings are made with regard to partition having taken place, there is no statement made with regard to partitioning of the suit schedule property and that the defendants being in respective possession of half share in the suit schedule property. Therefore, all these aspects have not been pleaded or proved and established by the defendants. Merely saying that the sale deed is a nominal one or it was executed for the purpose of borrowing loan, would not suffice to reject the prayer of the plaintiff.

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5.3. Learned counsel for the plaintiff contends that Ex.P1 is a registered sale deed, Exs.P2 and P3 are the revenue records and entries with regard to the suit schedule property. The plaintiff's name is entered in the RTC extract. The same is mutated in the revenue records. The khata of the property stands in the name of the plaintiff. The patta book and receipt are also in the name of plaintiff, which clearly establishes that the plaintiff has placed sufficient material before the Court to establish his right, title and possession over the suit schedule

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property. Learned counsel further contends that on the

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contrary, Ex.D1 relied by the defendants is a Palu Parikath, which is unregistered document and the same is not admissible in law and the said document being insufficient to come to the conclusion that the sale deed produced by the plaintiff is not a valid document in the eye of law to deny an order of permanent injunction in favour of the plaintiff.

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5.4. Learned counsel further contends that sufficient materials have been placed and documentary evidences are produced, which cannot be ignored and discarded. Under the circumstances, the First Appellate Court having rightly relooked and re-analysed the entire materials placed before the trial Court and the error committed by the trial Court in dismissing the suit by carefully analysing the materials on record, set aside the judgment of the trial Court rightfully and has consequently decreed the suit of the plaintiff, which does not call for interference.

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5.5. Learned counsel further contends that there is no illegality or perversity in the judgment rendered by the First Appellate Court. On the contrary, the First Appellate Court has pointed out the error and illegality committed by the trial Court

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in exceeding the scope of the suit to try it as if it was a declaratory suit. Despite there being no counter claim by the defendants, the First Appellate Court has appreciated Ex.P1,

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the sale deed in favour of the plaintiff and has rightfully decreed the suit of the plaintiff, which does not call for interference. Consequently, he seeks dismissal of the appeal.

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5.6. Learned counsel for the respondents has also relied

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on the following citations in support of his case:

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i) Sita Ram Bhama vs. Ramvatar Bhama reported in 2018 (15) SCC 130;

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ii) Anathula Sudhakar vs. P.Buchi Reddy (Dead) by Lrs. and others reported in (2008) 4 SCC 594;

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iii) Yellapu Uma Maheswari & anr. vs. Buddha Jagadheeswararao & ors. reported in 2015 (16) SCC 787;

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iv) Jharkhand State Housing Board vs. Didar Dingh and anr. reported in AIR 2018 SC (Supp) 1159;

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v) Mahadeva vs. The Commissioner, Mysore City reported in (2003) 3 KCCR 625;

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vi) Shyam Narayan Prasad vs. Krishna Prasad reported in AIR 2018 SC 3152;

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vii) Sri Govind M Prabhu vs. Sri Naveen N [Civil Revision Petition No.551/2022 dated 01.10.2024]; and

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viii) Sri Kallappa Sidrai Yetoji vs. Sri Vithal Sidrai Yetoji [Writ Petition No.101151/2016 dated 24.08.2022].

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6. Upon hearing learned counsel for both the parties,

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this Court, vide order dated 08.01.2012, framed the following substantial questions of law for consideration:

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"1. Whether the Lower Appellate Court is justified in allowing the appeal and setting aside the judgment and decree of the Trial Court decreeing the suit of the plaintiff granting permanent injunction restraining the defendants from interfering with the possession of the plaintiff over the suit property ignoring the admission of PW.1 referred in para.12 of the judgment of the Trial Court? and

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2. To consider any other substantial questions of law that would arise for consideration at the time of hearing?”

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7. I have heard the learned counsel for the appellants

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and learned counsel for the respondents. There is no dispute to the fact that the suit of the plaintiff is filed for the relief of permanent injunction (bare injunction) seeking for an order to restrain the defendants from interfering with peaceful possession and enjoyment of suit schedule property by the plaintiff. The plaintiff has produced the registered sale deed at Ex.P1 dated 10.06.1975. It is on this document, injunction

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relief was sought by the plaintiff. What the trial Court ought to have done is to see whether Ex.P1-the sale deed pertains to the suit schedule property and whether it is in the name of the plaintiff executed by the vendor therein and whether the plaintiff is in lawful possession and enjoyment of the suit schedule property as on date of filing of the suit and whether the defendants have made attempt to interfere and are interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule property.

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8. Apparently, it is seen that there is lot of denial of plaint averments by the defendants and the theory is put forth with regard to the suit schedule property being joint family property and ancestral property and the plaintiff not having any exclusive possession and right over the suit schedule property, the fact remains that the defendants have not filed any counter claim against the suit of the plaintiff. The relationship of the parties are not in dispute. Except for making the claim that the sale deed is not intended for transferring the right in favour of the plaintiff and that it is only a nominal one, the same could not be held to be an invalid sale deed of the plaintiff. No material is placed to show that the plaintiff is not in possession

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and enjoyment of the suit schedule property. The witnesses of the plaintiff have supported the case of the plaintiff by saying that the plaintiff is in possession and enjoyment of the suit schedule property so also the First Appellate Court has clearly come to a conclusion that the witnesses of the plaintiff have denied the suggestion to the effect that despite the sale deed, the property was jointly cultivated and that the plaintiff and the defendants are enjoying the suit schedule property equally. The First Appellate Court has reconsidered all these aspects and has come to the conclusion that the case made out by the plaintiff is more worthy than that of the defence taken up by the defendants. The theory of nominal sale deed was not appreciated in view of production of Ex.P1, the registered sale deed dated 10.06.1975. The other aspect of the claim made by the defendants with regard to the partition deed has also been not proved and elucidated and moreover, it was not the scope nor was it required for the trial Court to deal with the suit in an elaborate manner to decide Ex.P1 or Ex.D1 and whether there was any partition between the family members in a suit for permanent injunction.

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9. As stated earlier, the trial Court was required to see

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who is in possession of the suit schedule property in a bare injunction suit and whether the plaintiff is in possession and enjoyment as on date of filing of the suit. Based on the documentary evidence and oral evidence produced, the trial Court should have stuck to its core issue of deciding the bare injunction suit rather than venturing into deciding for the sale deed-Ex.P1, the alleged partition deed-Ex.D1 and the shares which were allotted as per Ex.D1, which is denied by the plaintiff and has made certain observations in paragraph No.12 of the judgment, which was uncalled for.

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10. It is seen that the First Appellate Court has rightfully come to the conclusion that the trial Court has committed an error in deciding the suit as if it was a declaratory suit for title. It was beyond the purview of the trial Court to venture into deciding Ex.P1 or for that matter Ex.D1, the alleged Palu Parikath. Therefore, the First Appellate Court has rightly come to a conclusion that the trial Court exceeded its jurisdiction in deciding the case on hand as a declaratory suit or for that matter a partition having taken place rather than just deciding the suit of a bare injunction in nature.

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11. Upon perusal of the judgments relied by the learned counsel for the appellants, it is seen that the judgments are not applicable to the present facts and circumstances of the case on hand. Merely a denial of the title of the plaintiff or for that matter, the plaintiff ought to have filed a suit for declaration rather than a suit for injunction cannot be accepted on the ground that a cloud is raised on the title of the plaintiff. Therefore, every suit need not be converted from a suit for bare injunction to a suit for declaration of title or for that matter, any other declaratory relief whenever cloud is raised on the title of plaintiff. The plaintiff can maintain a suit for bare injunction without seeking the relief of declaration on his own strength of possession or for that matter having got into the suit property by way of any title or by way of any revenue records.

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12. On the contrary, the judgments relied by the learned counsel for the respondents is aptly applicable to the present facts and circumstances of the case.

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13. In the case of J harkhand State Housing Board's

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(supra), the Hon'ble Apex Court at paragraph No.11 held as under:

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"11. It is well settled by catena of Judgments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction."

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Therefore, other judgments relied by the learned counsel for the respondents are also applicable to the present facts and circumstances of the case. As admittedly, the suit is filed by the plaintiff for the relief of permanent injunction and he has not sought for any relief of declaration. The Courts will have to decide whether the plaintiff has made out a valid case for grant of permanent injunction on the basis of the materials placed before it and those which are relevant for the said purpose and not to get into a tangent in probing all other issues, which are not relevant for consideration of the suit.

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Under the circumstances, the judgments cited by the learned counsel for the respondents are applicable to the facts of the case and the judgments cited by the appellants are not applicable to the facts and circumstances of the present case, as they deal with declaratory relief and other reliefs.

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16. Under the circumstances, the First Appellate Court has rightly come to the conclusion that the plaintiff has made out a prima facie case and established his possession over the suit schedule property and also by virtue of filing the suit has shown that there is interference by the defendants to his peaceful possession and enjoyment of the said property and accordingly, the First Appellate Court has set aside the judgment and decree of the trial Court, which in my opinion does not call for interference. I do not find any illegality or perversity in the judgment rendered by the First Appellate Court.

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17. It is relevant to state here that this Court is not sitting in the armchair of the Appellate Court to re-appreciate the evidence once again as it is only the substantial questions of law that are required to be considered and having seen the materials that are appreciated by the First Appellate Court by re-looking at the oral and documentary evidence and the contentions put forth by both the counsel before the Courts, there is absolutely no error committed by the First Appellate Court in setting aside the judgment and decree of the trial Court and consequently, decreeing the suit of the plaintiff.

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