Karnataka High Court

Smt. Vijayalaxmi W/O Narayanappa ... vs The Chief Officer on 4 December, 2021

Bench: Jyoti Mulimani

                          1




 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

       DATED THIS THE 4TH DAY OF DECEMBER, 2021

                       BEFORE

        THE HON'BLE MS. JUSTICE JYOTI MULIMANI

 REGULAR SECOND APPEAL NO.100008 OF 2018 (INJ)

BETWEEN:

SMT.VIJAYALAXMI
W/O NARAYANAPPA
CHINNAMULAGUND,
AGE: 73 YEARS,
OCC: HOUSEHOLD WORK,
R/O. ISHWAR NAGAR
HANAGAL, DIST: HAVERI.                   ...APPELLANT

(BY SRI.SHRIHARSH A.NEELOPANT - ADVOCATE)

AND:

1.     THE CHIEF OFFICER
       TOWN MUNICIPALITY HANGAL
       HANGAL, DIST: HAVERI.

2.     GOVERNMENT OF KARNATAKA
       REP. BY DEPUTY COMMISSIONER
       HAVERI DISTRICT
       HAVERI.
                                     ...RESPONDENTS

(BY SRI.PRASHANT V.MOGALI - ADVOCATE FOR R2;
NOTICE TO R1 - SERVED)
                                2




      THIS RSA IS FILED UNDER SECTION 100 OF THE
CODE OF CIVIL PROCEDURE, 1908.


      THIS RSA POSTED FOR FINAL HEARING THIS DAY;
THE COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

Sri.Shriharsh A.Neelopant learned counsel for

appellant has appeared in person.

2. This appeal is from the Court of Senior Civil

Judge and JMFC, Hanagal in R.A.No.19/2005.

3. For the sake of convenience, the parties are

referred to as per their rankings before the trial Court.

4. The short facts are stated as under;

It is the case of the plaintiffs that the property TMC

NO. 3366/A originally belonged to one Sayyad Ahammad

Bhasha Peerjade and others. The said Sayyad Ahammad

Basha sold ½ portion in TMC No.3366/A to the husband

of the plaintiff for a total consideration of Rs.3,000/-

(Rupees Three Thousand Only) under a registered sale deed

dated 28.08.1980 - Ex.P2. The remaining ½ portion was

sold to one Channabasappa Mahalingappa Udashi for

consideration of Rs.3,000/- (Rupees Three Thousand Only)

under a registered sale deed dated 10.12.1982 - Ex.P3 and

Channabasappa Udashi in turn sold the said ½ portion in

favor of the husband of the plaintiff under a registered sale

deed 03.08.1985 - Ex.P4.

It is stated that there was a ditch / pit of about

10 to 12 feet in depth in the said property and the husband

of the plaintiff developed the same by spending huge

amount. Subsequently, 40 plots were formed and one of the

plots i.e., plot No.39 is sold to his wife. Accordingly, vardi

was submitted to the Municipality Hangal in the year 1991

for entering the name of plaintiff in the records.

Accordingly, the name was entered and Plot No.39 in TMC

No.3366/A is in the name of plaintiff and she is the owner

and possessor of said property.

It is averred that neither the people of Hangal nor

anybody else and even the defendants have got any right

over the said plot. Contending that the defendant No.1 tried

to encroach the suit property to form a new road, hence

plaintiff-initiated action against the defendants for the relief

of permanent injunction.

After the service of suit summons, defendants

appeared through their counsel and filed written statement.

They denied the plaint averments. They contended that the

suit is filed without issuance of statutory notice.

The defendants contended that the Government has

released about 4 Crores under the Chief Minister's Small

and Medium Cities Development Scheme and under that

scheme, defendant No.1 is carrying on the developmental

works in Hangal town and is developing roads, gutter's etc.,

for the benefit of the public. The tender for the said work

was called on 25.09.2009. The suit property is not in

existence. The defendant No.1 is intending to form the road

by closing portion of Maruti Honda. They denied the

encroachment. Among other grounds, they prayed for the

dismissal of the suit.

Based on the above pleadings, the Trial Court framed

the following issues.

1. Whether the plaintiff proves the existence of, and her lawful possession over the suit property bearing TMC No.3366/A, Plot No.39 as shown as and described as EFGH in plaint hand sketch map?

2. Whether the plaintiff further proves that the defendant No.1 is constructing a road over the suit property without acquiring it in accordance with law and thereby causing obstruction and interference?

3. Whether the defendant No.1 proves that he is constructing the road over Mukarti Honda but not over suit property?

4. Whether the valuation made and court fee paid is correct?

5. Whether the defendant No.1 proves that the suit is not maintainable without seeking declaratory reliefs?

6. Whether the suit of the plaintiff is hit by Section 80 of CPC?

7. Whether the plaintiff is entitled for relief sought for?

8. What order or decree?

To substantiate the claim, plaintiff got examined her

General Power of Attorney Holder as PW1 and produced

fifty-two documents which were marked as Ex.P.1 to

Ex.P.52. On the other hand, the Chief Officer of defendant

No.1 - Municipality was examined as DW-1 and three

witnesses as DW-2 to DW-4. They produced twenty

documents which were marked as Ex.D1 to D20.

On the trial of the action, the suit of the plaintiff's

came to be decreed. On appeal, the judgment and decree of

the trial Court was set-aside. Hence, this Regular Second

Appeal is filed under Section 100 of CPC is filed.

5. Sri.Shriharsh A.Neelopant, learned counsel for

appellant submits that the judgment and decree of the First

Appellate Court is illegal, perverse and capricious and also

contrary to the well-established principles of law laid down

by the Apex Court.

Next, he submitted that the First Appellate Court is

not justifying in diverging the findings of the trial Court in

holding that the plaintiff has not established the existence of

Plot No.39 overlooking the document at Ex.D-1.

A further submission was made that the Chief Officer

Municipality Hangal was examined as DW-2. In his cross

examination, he has admitted the existence of plot No.39. It

is submitted that the First Appellate Court is not justified in

diverging the findings of the trial Court overlooking the

depositions of DW-2.

Counsel vehemently submitted that the Municipality

has not produced any documents to discharge their burden

to prove the existence of pond in question in Plot No.39.

Counsel for appellant strenuously urged that the First

Appellate Court is not justified in holding that the suit for

injunction filed by the plaintiff without seeking declaration is

not maintainable overlooking the established principles of

law that when the title of the plaintiff is unassailable, she

need not seek for declaration.

Lastly, he submitted that viewed from any angle the

judgment and decree of the First Appellate Court lacks

judicial reasoning. Accordingly, he submits that the

judgment and decree of the First Appellate Court is liable to

be set-aside and the appeal may be allowed.

6. Heard the contentions urged on behalf of

appellant and perused the records with care.

The case really falls within a small compass. The suit

giving rise to this appeal was filed by the plaintiff for

permanent injunction.

As could be seen from the nature of lis between the

parties, the suit is one for bare injunction based on

possession as on the date of suit. The right to injunction is

based on prima facie right. Plaintiff specifically contended

that the suit property is part of plot No.39 of TMC

No.3366/A situated at Hangal Village and the first defendant

tried to encroach upon the same and tried to put up the

road.

The husband of the plaintiff was examined as PW-1.

The plaintiff produced documents like sale deed,

property extracts, tax paid receipts etc., to prove her prima

facie title / ownership over the suit schedule property.

I should observe that the documentary evidence of title

/ ownership like a sale deed cannot be ignored. The

documents produced by the plaintiff would show that she

has sufficient interest to maintain action. On the basis of

material proof, the trial Court held that plaintiff is in

possession of the property as on the date of suit.

It would be relevant to observe that in a suit for

injunction, plaintiff is required to prove his or her

possession over the property as on the date of filing of the

suit. On the trial of the action, it was found from the

evidence on record that plaintiff's husband had purchased

the property for valuable consideration and subsequently he

developed the same and formed 40 plots. One of such plots

i.e., plot No 39 was sold to the plaintiff.

On the basis of material proof, the trial Court held

that plaintiff is in lawful possession of the suit property.

Accordingly, the relief for permanent injunction was

granted. However, it is seen on appeal, the First Appellate

Court reversed the findings of the trial Court on the ground

that the defendants have denied the title of plaintiff hence

suit for bare injunction without seeking declaration is not

maintainable.

While addressing arguments, counsel for appellant

strenuously urged that the defendants neither have denied

nor disputed the title of the plaintiff. Counsel further

submitted that the Chief Officer of defendant-1 has

admitted the title.

Counsel has drawn the attention of the Court to the

cross examination of DW-2.

I have heard the contentions urged on behalf of

appellant with care. I have also perused the evidence with

utmost care.

The Chief Officer of defendant No.1 -

Sri.Hanumantappa Ningappa Bajakkanavar was examined

as DW-2. In the cross -examination, he has admitted

plaintiff's title.

I may extract the cross - examination of DW-2 as

under:-

"¤.¦.-2 £ÉÆÃAzÁ¬ÄvÀ RjÃ¢ ¥ÀvÀæ CAzÉæ ¤d. CzÀÄ G¥À-£ÉÆÃAzÀuÁ¢üPÁjUÀ¼ÀÄ ¤ÃrzÀ zÁR¯É CAzÉæ ¤d. ¤.¦.-2 gÀ°è£À D¹Û £ÀA:3366/J CAzÉæ ¤d. ¸Àzj À D¹ÛAiÀÄ£ÀÄß RjÃ¢ ªÀiÁrzÀªg À ÀÄ £ÁgÁAiÀÄuÁZÁAiÀÄð a£ÀßªÀÄÄ¼ÀUÀÄAzÀ CAzÉæ ¤d. ¤.¦.-3 PÀÆqÀ D¹Û £ÀA:3366/J PÉÌ ¸ÀA§A¢ü¹zÀÄÝ CAzÉæ ¤d. ¸Àzj À D¹ÛAiÀÄ£ÀÄß ZÀ£Àß§¸À¥Àà GzÁ¹ CªÀgÀÄ RjÃ¢ ªÀiÁrzÁÝgÉ CAzÉæ ¤d. ¤.¦.-4 gÀ°è£À D¹Û ¸ÀASÉå PÀÆqÀ 3366/J CAzÉæ ¤d. ¸Àzj À D¹ÛAiÀÄ£ÀÄß £ÁgÁAiÀÄuÁZÁAiÀÄð a£ÀßªÀÄÄ¼ÀUÀÄAzÀ EªÀgÀÄ ZÀ£Àß§¸À¥Àà GzÁ¹ EªÀjAzÀ RjÃ¢ ªÀiÁrzÁÝgÉ CAzÉæ ¤d. ¤.¦.-2 gÀ ¥ÀPæ ÁgÀ ¸Àzj À D¹ÛAiÀÄ£ÀÄß £ÁgÁAiÀÄuÁZÁAiÀÄð a£ÀßªÀÄÄ¼ÀUÀÄAzÀ EªÀjUÉ ¸ÉÊAiÀÄzÀ CºÀäz¨ À ÁµÁ ªÀiÁgÁl ªÀiÁrzÁÝg.É CzÉÃ jÃw ¤.¦.-3 gÀ ¥ÀPæ ÁgÀ CzÀg° À è EgÀÄªÀ D¹ÛAiÀÄ£ÀÄß ZÀ£Àß§¸À¥Àà GzÁ¹ EªÀjUÉ ¸ÉÊAiÀÄzÀ E¸Á¸Á§ ªÀiÁgÁl ªÀiÁrzÁÝgÉ CAzÉæ ¤d. ¤.¦.-4 gÀ ¥ÀPæ ÁgÀ ZÀ£Àß§¸À¥Àà GzÁ¹ EªÀgÀÄ D¹ÛAiÀÄ£ÀÄß £ÁgÁAiÀÄuÁZÁAiÀÄð a£ÀßªÀÄÄ¼ÀUÀÄAzÀ EªÀjUÉ ªÀiÁgÁl ªÀiÁrzÁÝgÉ CAzÉæ ¤d."

The admission depicts that there is no dispute with

regard to the title.

As already noted above, the First Appellate Court

concluded that the defendants have denied the title of

plaintiff hence suit for bare injunction without seeking

declaration is not maintainable.

In my considered view, what is required to be

considered is that the suit for permanent injunction without

claiming declaration of title as filed by the plaintiff was

maintainable?

The issue is no more res-integra. The position has

been crystalized by the Apex Court in ANATHULA

SUDHAKAR VS. P. BUCHI REDDY (DEAD) BY LRS. AND

OTHERS reported in (2008) 4 SCC 594, the Hon'ble Apex

Court has summarized as under:

21. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:

(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.

(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.

(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). 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.

(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 discretion carefully to identify cases where it will enquire into title and cases where it will refer to the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case"

It could thus be seen that the Apex Court in

unequivocal terms has held that where the plaintiff's title is

not in dispute or not under a cloud, a suit for injunction

could be decided with reference to the finding on

possession. It has been clearly held that 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.

But in the present case there is no dispute with regard

to the title. I may venture to say that a cloud is not raised

over the plaintiffs' title.