G Krishnappa vs Govindaiah
2021 Latest Caselaw 6182 Kant

                             -: 1 :-


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 15TH DAY OF DECEMBER, 2021

                          PRESENT

           THE HON'BLE MR. JUSTICE B.VEERAPPA

                              AND

        THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA

           REGULAR FIRST APPEAL. No.798/2016

BETWEEN:

G KRISHNAPPA
S/O LATE V GIRIYAPPA
AGED ABOUT 59 YEARS
NO.10, 4TH CROSS
AVALAHALLI, MYSORE ROAD
BANGALORE - 560026.
                                          ... APPELLANT

(BY SRI V VISWANATH SHETTY, DAVOCATE)

AND:

1.     GOVINDAIAH
       S/O LATE VENKATEGOWDA
       AGED ABOUT 72 YEARS

2.     SUSHEELAMMA
       D/O GOVINDAIAH
       AGED ABOUT 45 YEARS

3.     VENKATESH
       S/O GOVINDAIAH
       AGED ABOUT 42 YEARS

4.     GIRIJA
       W/O VENKATESH
       AGED ABOUT 32 YEARS

5.     JAYAMMA
       D/O GOVINDAIAH
       AGED ABOUT 38 YEARS

6.     SURESH
       S/O GOVINDAIAH
       AGED ABOUT 36 YEARS
                             -: 2 :-


7.    SHEELA
      W/O SURESH
      AGED ABOUT 32 YEARS

8.    THIMMEGOWDA
      S/O LATE VENKATEGOWDA
      AGED ABOUT 62 YEARS

9.    GANGAMMA
      W/O THIMMEGOWDA
      AGED ABOUT 57 YEARS

10.   ANANDA
      S/O THIMMEGOWDA
      AGED ABOUT 27 YEARS

11.   PUTTAMMA
      D/O THIMMEGOWDA
      AGED ABOUT 24 YEARS

12.   HEMAVATHI
      D/O THIMMEGOWDA
      AGED ABOUT 22 YEARS

13.   GIRIYAPPA
      S/O LATE VENKATEGOWDA
      AGED ABOUT 57 YEARS

14.   KAMALAMMA
      W/O GIRIYAPPA
      AGED ABOUT 44 YEARS

15.   RANI
      D/O GIRIYAPPA
      AGED ABOUT 23 YEARS

16.   SANTHOSH
      S/O GIRIYAPPA
      AGED ABOUT 21 YEARS

17.   M/S UNIVERSAL STEEL ROLLING
      MILLS PRIVATE LIMITED,
      HAVING ITS REGISTERED OFFICE AT
      UPHAAR, NO.4, 12TH MAIN
      MARUTHI NAGAR, MALLESH PALYA
      BANGALORE - 560075
      REP. BY ITS MANAGING DIRECTOR
      P.S PRASAD.
                                           ...RESPONDENTS

(BY SRI NAGARAJ DAMODAR, ADVOCATE FOR R1 TO R17:
SRI S RAJASHEKAR, ADVOCATE FOR R19 AND R20:
R18 IS SERVED UNREPRESENTED)
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                                 ***

      THIS REGULAR FIRST APPEAL IS FILED UNDER ORDER 96
OF THE CODE OF CIVIL PROCEDURE, PRAYING TOAGAINST THE
JUDGMENT AND DECREE DATED 08.10.2013 PASSED IN O.S.
NO.7/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JMFC, KUNIGAL DISMISSING THE SUIT FOR DECLARATION AND
MANDATORY INJUNCTION.

      THIS APPEAL COMING ON FOR HEARING THIS DAY,
K.S. HEMALEKHA J., DELIVERED THE FOLLOWING:


                             JUDGMENT

The plaintiff has preferred the present Regular First

Appeal assailing the judgment and decree dated

08/10/2013, passed in O.S.No.7/2011, on the file of the

Senior Civil Judge and JMFC, Kunigal, dismissing the suit

filed by the plaintiff for declaration and consequential relief

of mandatory injunction and possession.

2. The parties are referred to as per their ranking

before the trial Court.

3. It is the case of the plaintiff that one

Venkategowda, son of Shetty Gowda is the paternal grand-

father of the plaintiff and the suit schedule land bearing

Sy.No.160 of Jaladigere Village, measuring 4 acres 12

guntas inclusive of 10 guntas of karab land was granted to

Venkategowda, son of Shetty Gowda by the Government on

01/08/1935 and he was in possession and cultivation of the

land till 16/11/1951. It is contended that after the death of

the grand-father, plaintiff's father was cultivating the land

and he died on 19/11/1975 and on the death of the

plaintiff's father, the plaintiff is cultivating the said land. It

is also contended that defendant Nos.1, 8 and 13 got their

names entered in the RTC extracts and other revenue

records contending that the Government has granted the

suit schedule land in their favour. It is further averred that

according to defendant No.17, the land was granted by the

Government to Venkategowda, son of Buddegowda and

after his death defendant Nos.1, 8 and 13 being his legal

heirs, got their names entered in the revenue records. It is

further contended that the suit lands were not granted by

the Government to Venkategowda, son of Buddegowda at

any point of time and that defendant Nos.1 to 16 have

created a registered sale deed dated 25/04/2008 in favour

of defendant No.17 and the defendant No.17 sought to

convert the agricultural land for residential and industrial

purpose. It is further contended that the alleged

transaction between the defendant Nos.1 to 16 and

defendant No.17 is void ab initio as there is no valid title to

the suit schedule property in favour of defendant Nos.1 to

16 and thus, filed the suit for declaration that the sale deed

dated 25/04/2008 executed by defendant Nos.1 to 16 in

favour of defendant No.17 as void ab initio and not binding

on the plaintiff and also sought for mandatory injunction

directing defendant No.17 to deliver possession of the suit

schedule property to the plaintiff.

4. The defendant Nos.1 to 16 filed their written

statement denying the averments made in the plaint and

submitted that the land bearing Sy.No.160, measuring 4

acres 12 guntas, situated at Jaladigere Village, Yediyur

Hobli, Kunigal Taluk inclusive of 10 guntas of kharab land

was granted to one Venkategowda, son of Buddegowda by

the Government on 01/08/1935 and the said

Venkategowda, son of Buddegowda was in peaceful

possession and cultivation of the said land and his name

was recorded in the revenue records. It is further

contended that the said Venkategowda, son of Buddegowda

died, leaving behind three sons viz., defendant Nos.1, 8

and 13 and on the death of Venkategowda, son of

Buddegowda, the name of defendant No.1-Govindaiah was

mutated vide M.R.No.20/2007-08 and it is further

contended that the name of Govindaiah, son of

Venkategowda was mutated in the register and other

revenue records. It is also contended that the said

Govindaiah filed an application for conversion of agricultural

land bearing Sy.No.160 for industrial purpose to an extent

of 3 acres 23 guntas and 12 guntas for residential purpose

and the Deputy Commissioner accorded permission for

conversion by an order dated 22/04/2008. It is further

contended that the plaintiff is wrongly contending that the

suit schedule property was granted in favour of

Venkategowda, son of Shettygowda even though the said

land was granted in favour of Venktaegowda, son of

Buddegowda and also contended that the plaintiff has

absolutely no manner of right, title or interest over the suit

schedule property and thus, sought to dismiss the suit.

5. Defendant No.17 also filed a written statement

denying the averments made by the plaintiff and contended

that Sy.No.160, measuring 12 guntas was granted to

Venkategowda, son of Buddegowda by the Government on

01/08/1935. Since then, the name of Venkategowda, son

of Buddegowda appeared in the said RTC's and he was in

peaceful possession and cultivation of the said land. He

further contended that on the death of Venkategowda, son

of Buddegowda, the names of his sons came to be entered

and the defendants together sold residentially converted

land bearing Sy.No.160, measuring 12 guntas and

industrial converted land bearing Sy.No.160, measuring 3

acres 22 guntas by registered sale deed dated 25/04/2008

in favour of defendant No.17. It is further contended that

the plaintiff taking advantage of the name of the

Venkategowda, is trying to grab the property and has filed

a false suit and urging many other grounds, defendant

No.17 sought for dismissal of the suit.

6. The trial Court on the basis of pleadings of the

parties framed the following issues:

ISSUES

1. Whether the plaintiff proves that the suit schedule property was granted on 01.08.1935 in favour of his grandfather by name Venkategowda son of Shetty Gowda?

2. Whether the plaintiff proves that his father V.Giriyappa has succeeded to the suit schedule property and after his demise he has succeeded to the same?

3. Whether the plaintiff proves that he is in peaceful possession and enjoyment of the suit schedule properties?

4. Whether the defendants prove that the suit schedule property was granted on 01.08.1935

by name Venkategowda S/o. Buddegowda?

5. Whether the defendants prove that defendants No.1, 8 and 13 have succeeded to the suit schedule property?

6. Whether the defendants prove that the original documents pertaining to land bearing No.160 were lost?

7. Whether the defendants prove that Govindaiah S/o. Venkategowda has got part of the suit schedule property converted?

8. Whether the plaintiff proves that he is entitled for the reliefs claimed?

9. What Order or Decree?

7. The plaintiff in order to prove his case

examined himself as PW 1 and got marked 19 documents

as per Exs.P-1 to P-19. Defendant No.13 was examined as

DW.1 and the Managing Director of defendant No.17 was

examined as DW.2 and got marked 33 documents as per

Exs.D-1 to D-33.

8. The Trial Court, considering the entire material

on record, dismissed the suit of the plaintiff holding that the

plaintiff has failed to prove that the suit schedule property

was granted on 01/08/1935 in favour of his grand-father by

name Venkategowda, son of Shettygowda.

9. We have heard the learned counsel for the

parties to the lis.

10. Sri V. Vishwanath Shetty, learned counsel for

the plaintiff would contend that the trial Court has

dismissed the suit for declaration without considering the

facts in proper perspective. He contended that the trial

Court has failed to consider that the plaintiff is the absolute

owner of the suit schedule property and the vital

documents Ex.P-2 being the passbook of agricultural

equipments clearly depicts that the agricultural equipments

are issued by the Department of Agriculture, Government

of Karnataka in the year 1993 and such a passbook is

issued only to the farmers whose names have appeared in

the revenue records. It is contended that the name of the

plaintiff's grand-father was entered in revenue records. It

is further contended that the appellant was in service at

Mysuru and after his voluntary retirement in the year 2009,

he gave an application to enter his name in the revenue

records, which was originally standing in the name of his

grand-father late Venkategowda, son of Shettygowda. It is

further contended that the trial Court erroneously

construed that the plaintiff is taking advantage of his

grand-father's name to that of the name of the father of

the defendant.

11. It is further contended that the trial Court ought

to have considered the passbook produced by the plaintiff

in proper perspective and contended that the sale deed

executed by defendant Nos.1 to 16 in favour of defendant

No.17 is without there being any right over the suit

property. It is also contended that there is a criminal case

filed against the defendants in C.C.No.1149/2012 for the

offences punishable under Sections 417, 419, 465, 471 and

420 of the Indian Penal Code, 1860 ("IPC") and therefore,

sought to allow appeal. It is further contended that in

support of his contention, he has filed I.A.No.1 under Order

XLI Rule 27 of the Code of Civil Procedure, 1908 ("CPC) for

production of additional documents and to adduce

additional evidence and sought for allowing the said

application.

12. Per contra, Sri Nagaraj Damodar, learned

counsel for respondent Nos.1 to 17 and Sri S.Rajashekar,

learned counsel for respondent Nos.19 and 20 supported

the judgment and decree passed by trial Court and

contended that there is no merit in the appeal filed by the

plaintiff and sought to dismiss the appeal.

13. In view of the rival contentions urged by the

learned counsel for the parties and after careful perusal of

the entire material on record including original records, the

points that arise for our consideration in the present Appeal

are:

"(i) Whether I.A.No.1/2020 filed for production of additional documents needs to be considered?"

(ii) Whether the judgment and decree passed by the trial Court would require interference by this Court?"

14. Before considering the judgment and decree

passed by the trial Court, the application (I.A.No.1) filed by

the plaintiff for production of additional documents and

adducing additional evidence needs consideration.

15. The plaintiff has filed I.A.No.1 under Order XLI

Rule 27 of the CPC praying to produce additional

documents and to adduce additional evidence. The

documents sought to be produce are as under:

1. Letter dated 01/06/2018 issued by the Public Information Officer and Asst. Director, District Industrial Centre, Tumakuru to the petitioner.

2. Letter dated 25/03/2019 issued by the Joint Director, District Industrial Centre, Tumakuru to the Petitioner with enclosures.

3. Order passed by the Karnataka Information Commissioner, Bangalore on 22/02/2019 in case No.KMA/12038/APL/2018.

4. Endorsement issued by the Public Information Officer and Tahsildar, Kunigal Taluk on 10/08/2017 with regard to Saguvali Chit, dated 01/08/1935 for land in Sy.No.160 of Jaladagere Village.

5. Endorsement issued by the Tahsildar, Kunigal Taluk 10/10/2017 for distribution of Manure subsidy to the grand father of the petitioner late Venkategowda, son of late Shetty Gowda on the basis of RTC for the year 1993-94.

6. Endorsement issued by the Tahsildar, Kunigal Taluk on 25/07/2018 informing that land in Sy.No.160, measuring 4 acres 2 guntas with old Sy.No.10 granted on 01/08/1938 by Venkategowda, son of Shetty Gowda (grand father of the petitioner) intimating the petitioner that records are not available in the record room.

7. Copy of the order passed by the Karnataka Information Commissioner, Bangalore on 22/02/2019 in case No.KMA-11867 APL 2018.

16. Learned counsel for the appellant would

contend that the additional documents sought to be

produced substantiate the plaintiff's case and corroborate

with the evidence already on record.

17. Per contra, learned counsel for the defendants

would contend that the additional documents sought to be

produced, cannot be permitted to be brought on record as

the production of additional documents before the appellate

Court is curtailed by the provisions of Order XLI Rule 27 of

the CPC and further contend that the additional documents

are not relevant for deciding the issues in dispute, but it is

just to protract the proceedings.

18. The provision of Order XLI Rule 27 of the Code

of Civil Procedure reads as under:

"27. Production of additional evidence in Appellate Court.--(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if --

(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or

(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.

(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."

In view of the wording appearing under Order XLI

Rule 27 of the CPC, "requires any document to be produced

or any witness to be examined to enable it to pronounce

judgment", the application for additional documents needs

to be considered.

19. In the present case, the additional documents

and the additional evidence sought to be brought on record

are the letters to the Tahsildar and the endorsement issued

by the Tahsildar stating that the saguvali chit dated

01/08/1935 is not found. The said application filed under

Order XLI Rule 27 of the CPC does not satisfy the

parameters which are condition precedents to file an

application under Order XLI Rule 27 of the CPC. Even if the

application is allowed, it would be a futile exercise as it

would not be relevant to support the contention of the

plaintiff's case. In view of these reasons, I.A.No.1 is

rejected as devoid of merits as the additional documents

are not required to enable this Court to pronounce the

judgment in the present appeal.

In view of the above, point No.1 raised in the present

appeal is answered in the negative.

20. The suit is related to land bearing Sy.No.160 of

Jaladagere Village, measuring 4 acres 12 guntas is inclusive

of 10 guntas kharab land. The plaintiff and defendants

claimed to be the owners in possession of the suit land in

view of the grant by the Government on 01/08/1935.

21. The plaintiff's contention is that the

Government, on 01/08/1935, had granted the suit land to

Venkategowda, son of Shettygowda the paternal grand-

father of the plaintiff and till his death, he was in

possession and cultivation of the suit land and after his

death, the plaintiff's father was cultivating and on the death

of his father, it is the plaintiff, who is in possession and

enjoyment of the suit property. It is contended that

defendant Nos.1, 8 and 13 got their names entered in the

RTC extract without there being any right over the suit land

and taking advantage of the name "Venkategowda" which

is the name of grand-father of the plaintiff and which is also

the name of father of defendant Nos.1, 8 and 13. Thus, the

plaintiff filed the suit for declaration to declare that the sale

deed executed by defendant Nos.1 to 16 in favour of

defendant No.17 is not binding on him and for mandatory

injunction directing defendant No.17 to hand over

possession of the suit schedule property.

contended that the Government has granted the land i.e.,

the suit land in favour of his father Venkategowda, son of

Buddegowda and the revenue records stand in his name

and after his death, the name of defendant No.1

Govindaiah was entered in the revenue records and on an

application filed by the said Govindaiah for conversion of

the agricultural land Sy.No.160, the Deputy Commissioner

had accorded permission for conversion by Order dated

22/04/2008 and in view of the right in favour of the

defendants, they have executed a registered sale deed

dated 25/04/2008 in favour of defendant No.17.

23. The plaintiff, in order to prove his case, got

examined himself as PW.1 and reiterated the averments

made in the plaint. Ex.P-1 is the certified copy of the

khatha with regard to the suit schedule property. Ex.P-2 is

the passbook pertaining to agricultural equipments which

stands in the name of Venkategowda, son of Shettygowda

issued by the Department of Agriculture, Government of

Karnataka, to get a subsidy for the purchase of agricultural

equipments. Exs.P-3 and P-4 are the letters issued to the

Tahsildar requesting to transfer the khata of the suit

schedule property in the name of the plaintiff. Ex.P-5 is the

endorsement issued by the Tahsildar. Ex.P-6 is the

certified copy of the sale deed dated 25/04/2008. Ex.P-7 is

the encumbrance certificate. Ex.P-8 is the certificate issued

by the Department of Industries and Commerce,

Government of Karnataka. Ex.P-10 is the certificate issued

by the Directorate of Industries and Commerce. In all,

plaintiff got marked 19 documents.

24. On behalf of defendant No.1, he got examined

himself of DW.1 and got marked 32 documents as per

Exs.D-1 to D-32. Exs.D-1 to D-18 are the RTC extracts

pertaining to the suit schedule property, wherein the name

of the father of defendant No.1 i.e., Venkategowda, son of

Buddegowda appears in column No.9 as well as in column

No.12(2). Ex.D-19 is the genealogical tree, Ex.D-20 is the

mutation register extract which shows that the name of

defendant No.1 was mutated in the revenue records with

no objection from other brothers with regard to the suit

schedule property. Ex.D-21 is the patta receipt book

standing in the name of defendant No.1. Ex.D-22 is the

Official Memorandum issued by the Deputy Commissioner

for having converted the land for the purpose of industry in

view of the application given by defendant No.1. Ex.D-23

is the blue sketch, Ex.D-24 is the plan belonging to

defendant No.17/company. Exs.D-25 and D-26 are

encumbrance certificates. Ex.D.27 is the 'B' report copy in

Cr.No.127/2010. Ex.D-28 is the certified copy of the

mahazar, Exs.D-29 to D-31 are the certified copies of the

statement of Girigowda, son of Venkategowda, Umesha and

Buddegowda. Ex.D-32 is the general licence issued by

Yadgiri Grama Panchayat in favour of defendant No.17 on

28/04/2008. Defendant No.17 got examined himself as

DW.2 who is the purchaser of suit schedule property and

Ex.D-33 is the invitation card to show the inaugural

function of M/s. Floor Mill Private Limited.

25. Admittedly, when the plaintiff is claiming his

right by way of a grant by the Government in favour of his

grand-father Venkategowda, son of Shettygowda, he has

not sought for declaration of title of the suit property as

required under law. Without there being a declaration of

title by the plaintiff, mere suit for declaration that the sale

deed dated 25/04/2008 executed by defendant Nos.1 to 16

in favour of defendant No.17 as void ab initio and not

binding on the plaintiff and for mandatory injunction

directing to deliver possession would not be maintainable.

26. The dispute is regarding the suit property

bearing plaintiff's grand-father's name Venkategowda and

defendant Nos.1 to 16 claim that their father's name is

Venkategowda. The only difference is 'surname' which is

not in dispute. According to the plaintiff, Venkategowda,

son of Shettygowda is his grand-father and according to the

defendant, Venkategowda, son of Buddegowda is his father.

The name of Venkategowda, son of Buddegowda has

appeared in the revenue records as per Exs.D-1 to D-18.

The plaintiff has not produced a single document to show

the grant made in favour of his grand-father by the

Government on 01/08/1935. Though he has not sought for

declaration of his title, he tried to establish a case stating

that on 01/08/1935, there was a grant in favour of his

grand-father.

27. A careful perusal of the entire documents and

the evidence on record would establish that the land was

granted to the defendant's father on 01/08/1935 and his

name appears in the revenue records from the year 1935

till his death and after his death, it was in the name of

defendant No.1, which was entered with the consent of the

other brothers and subsequently, on the sale made by

defendant Nos.1 to 16 in favour of defendant No.17, the

name of defendant No.17 was entered in the year 2008.

The plaintiff did not produce any documentary evidence

before the trial Court and only relies on the passbook which

he claims is in the name of Venkategowda, son of

Shettygowda to show that the agricultural equipments have

been issued by the Department of Agriculture. Other than

the said document, no other document has been produced

before the trial Court.

28. In the case of Anathulla Sudhakar vs.

P.Buchi Reddy (dead) by LRs and others [(2008)4

SCC 594], at paragraphs 13 to 16 and 21, it is held as

under:

13. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.

13.1. Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.

13.2. Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot

seek the relief of injunction simpliciter, without claiming the relief of possession.

13.3 Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.

14. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for

injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title.

15. In a suit for permanent injunction to restrain the defendant from interfering with plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and defendant tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may prove physical or lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Even in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue in such a suit, though it may arise incidentally or collaterally.

16. But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such

cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was at issue, the court should not decide the issue of title in a suit for injunction. The proper course is to relegate the plaintiff to the remedy of a full-fledged suit for declaration and consequential reliefs.

x x x

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

(a) Where a cloud is raised over 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 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 (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.

(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 straight-forward, 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 plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case."

The Hon'ble Apex Court held that when there is a

cloud raised over the plaintiff's title and he does not have

possession, a suit for declaration and possession with or

without consequential injunction is the remedy and cloud is

said to be raised over the person's title when some

apparent defect in his title to a property or when some

prima facie right of a third party over it, is made out or

shown. Thus, a declaration of title by the plaintiff is

necessary when there is a cloud on the title of the plaintiff

to the property. Since the plaintiff has not sought for

declaration of his title over the suit property, the plaintiff is

not entitled for declaration that the sale deed executed by

defendant Nos.1 to 16 in favour of defendant No.17 is not

binding on him and the plaintiff is not entitled to seek for

possession without establishing his right over the suit

property. The trial Court, after assessing all these facts

and circumstances, has rightly held that the plaintiff has

failed to prove the title over the suit property and the

plaintiff is taking advantage of the fact that the name of the

grand-father and the father of defendant No.1 is same,

forgetting that he has no other evidence against the

defendants.

29. In view of the above, the point No.2 raised for

consideration in the present appeal is answered in the

negative, holding that the appellant has not made out any

case to interfere with the impugned judgment and decree

passed by the Trial Court.

30. For the reasons stated above, we pass the

following:

ORDER

(i) The Regular First Appeal is dismissed.

(ii) The impugned judgment and decree dated

08/10/2013 made in O.S.No.7/2011 on the file

of the Senior Civil Judge and JMFC, Kunigal, is

hereby confirmed.

(iii) This Court, while condoning the delay, by the

Order dated 11.01.2017 directed the appellant

to pay cost of Rs.25,000/-. Accordingly the

appellant had deposited the said amount of

Rs.25,000/- on 20/01/2017 before this Court.

In view of the dismissal of the Appeal on

merits, the Registry is directed to transmit the

said amount to the Karnataka State Legal

Services Authority forthwith.

Sd/-

JUDGE

Sd/-

JUDGE

S*