Karnataka High Court
Maruthi And Ors vs Govind And Ors on 17 December, 2021
Bench: M.G.S.Kamal
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 17TH DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
MFA No.201547/2021 (CPC)
BETWEEN
1. MARUTHI S/O LALAPPA
AGE 65 YEARS, OCC.AGRICULTURE
2. PANDITH S/O LALAPPA
AGE 40 YEARS, OCC.AGRICULTURE,
3. VITHAL S/O LALAPPA
AGE 35 YEARS, OCC.AGRICULTURE,
4. KASHINATH S/O LALAPPA
AGE 30 YEARS, OCC.AGRICULTURE,
5. MALLAMMA W/O LALAPPA
AGE 45 YEARS, OCC.HOUSEHOLD AND
AGRICULTURE
6. MALLIKARJUN S/O LATE RAMANNA
AGE 45 YEARS, OCC.AGRICULTURE,
7. ANIL S/O LATE RAMANNA
AGE 41 YEARS, OCC.AGRICULTURE,
8. RATNAMMA W/O LATE SIDRAMAPPA
AGE 49 YEARS, OCC.HOUSEHOLD AND
AGRICULTURE,
2
9. ESHWAR S/O SIDDAPPA @ SAIDAPPA
AGE 65 YEARS, OCC.AGRICULTURE,
ALL ARE R/O ALLAPUR VILLAGE,
TQ AND DIST.BIDAR.
...APPELLANTS
(BY SRI MANVENDRA REDDY, ADVOCATE)
AND
1. GOVIND S/O RAJARAM
AGE MAJOR, OCC.AGRICULTURE,
2. SHANKER S/O RAJARAM
AGE MAJOR, OCC.AGRICULTURE,
3. GOPAL S/O RAJARAM
AGE MAJOR, OCC.AGRICULTURE,
4. ASHOK S/O RAJARAM
AGE MAJOR, OCC.AGRICULTURE,
ALL R/O VILLAGE CHIMKOD,
TQ AND DIST.BIDAR.
...RESPONDENTS
(BY SRI SHESHADRI JAISHANKAR, ADVOCATE)
THIS MFA IS FILED UNDER ORDER XLIII RULE 1(r) OF
CPC, PRAYING THAT THIS HONOURABLE COURT MAY BE
PLEASED TO ALLOW THE APPEAL, SET ASIDE THE ORDER
ON IA NO. I PASSED BY THE LEARNED ADDL. SENIOR
CIVIL JUDGE AT BIDAR IN OS NO. 96/2021 IN REJECTING
IA NO. 1, AND TO ALLOW THE IA NO. I GRANT INTERIM
INJUNCTION AS PRAYED IN IA NO. 1, IN THE INTEREST
OF JUSTICE AND EQUITY.
3
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
The appellants/plaintiffs filed suit in O.S.No.96/2021
on the file of Senior Civil Judge at Bidar (henceforth
referred to as 'Trial Court') seeking judgment and
decree of permanent injunction against the
respondents/defendants from interfering with their
peaceful possession in respect of the suit schedule
properties.
2. The appellants/plaintiffs are claiming to be in
possession of the suit land on the premise that the suit
property originally bearing Survey No.102 totally 17 acres
33 guntas was granted by the Land Tribunal, Bidar vide its
order dated 25.09.1987 passed in case No.LRM/401/74-
75/10182 in favour of five persons namely, (i) Lalappa, the
father of plaintiff Nos.1 and 2, (ii) Manik, father of plaintiff
Nos.3 and 4 and father-in-law of plaintiff No.5, (iii)
Ramanna, father of plaintiff Nos.7 and 8 and
(iv) Sharanappa, the husband of plaintiff No.8 and (v)
Eshwar, the plaintiff No.9. That the aforesaid persons
were in actual, physical and peaceful possession of the suit
property during their lifetime of first four person and after
their demise, the plaintiffs have continued to be in
possession of the suit property. That the names of the
plaintiffs have been entered in the revenue records and
same have been updated till date. That there was a
proceedings initiated by one Smt.Gundabai, the mother of
defendant Nos.1 to 4 and one Smt.Nivarthi, who had filed
an appeal before the Assistant Commissioner, Bidar in case
No.REV.APPL.CR.50/87-88 and after hearing of the
partiers, the Assistant Commissioner, Bidar had dismissed
the said appeal vide order dated 28.12.1990. That the
possession of the plaintiffs was thus fortified by the
aforesaid revenue documents and the proceedings of the
Assistant Commissioner and the plaintiffs being the
members of Hindu Joint Family have been in possession of
the suit property and cultivating the same. Thus they are
in settled possession of the suit property.
3. The respondents/defendants filed written
statement contending that an extent of 8 acres 14 guntas
of the suit property was purchased by Smt.Gundabai in the
year 1965 and another extent of 4 acres 13 guntas was
purchased by Smt.Nivrathi in the year 1965. That the
respondents/defendants are the legal heirs of aforesaid
Gundabai. The respondents/defendants further contended
that the plaintiffs are in fact in possession only of 4 acres
14 guntas of land and the remaining extent of land is in
their possession by virtue of the sale deeds referred to
above. It is also the contention of the
respondents/defendants that subsequent to purchase in
the year 1965, names of Gundabai and Nivrathi were
mutated in the revenue records in the year 1966 and it
continued till 1998. The respondents/defendants further
contended that questioning the occupancy rights granted
by the Land Tribunal, Bidar in favour of the persons
referred to by the plaintiffs in its order 25.09.1987, a writ
petition in W.P.No.29009/1991 was filed before this Court.
This Court by its order dated 19.08.1998 allowed the writ
petition and had quashed the grant of occupancy rights
made by the Tribunal and has remitted the matter for
fresh consideration to the Land Tribunal. Both the parties
submit that after the remand, no further proceedings have
taken place before the Land Tribunal. In that view of the
matter, it is contended by the respondents/defendants that
title to the suit property is vested with Smt.Gundabai and
Smt.Nivrathi to the extent of 12 acres 27 guntas and title,
if any, of the plaintiffs is only to the extent of 4 acres 13
guntas. On the aforesaid foundational pleadings, the
plaintiffs have sought for relief of permanent injunction,
while the respondents/defendants have sought for
dismissal of the suit.
4. The appellants/plaintiffs had filed an
application under Order 39 Rules 1 and 2 of CPC seeking
interim an order of injunction restraining the
respondents/defendants from interfering with their
possession of the suit property to the entire extent of 17
acres 33 guntas. The respondents/defendants have filed
their objections statement by reiterating their defence set
out in the written statement. The Trial Court by its order
dated 21.10.2021 has dismissed the application filed by
the plaintiffs with costs. Aggrieved by the same, the
plaintiffs are before this Court.
5. The learned counsel for the
appellants/plaintiffs reiterating the grounds urged in the
appeal memorandum submitted that the plaintiffs were not
seeking any relief with regard to their title over the suit
property. Admittedly, they are seeking the relief of
permanent injunction in respect of their possession alone
on the basis of their predecessor-in-title having been
granted occupancy rights by the Land Tribunal, Bidar by its
order dated 25.09.1987. Though it is not disputed by the
plaintiffs, the order passed by this Court in
W.P.No.29009/1991 quashing the said grant order and
remitting the matter to Tribunal, it is the contention of the
plaintiffs that they continue to remain in possession of the
suit property. Hence, he submits that the
appellants/plaintiffs are entitled for protection of their
settled possession over the suit property.
6. The learned counsel for the
respondents/defendants vehemently opposing the prayer
of the appellants/plaintiffs submits that the
respondents/defendants have better title over the suit
property than that of the appellants/plaintiffs, in terms of
the registered deeds of sale of the year 1965, under which,
an extent of 8 acres 14 guntas was purchased by
Smt.Gundabai and another extent of 4 acres 13 guntas
was purchased by Smt.Nivrathi. Thus, by virtue of the
aforesaid deeds of sale, he submits that the
respondents/defendants are in possession of the suit
property to the extent of 12 acres 27 guntas. He submits
that the names of aforesaid Smt.Gundabai and
Smt.Nivrathi were mutated in the revenue records in the
year 1966 up to 1998. Based on the above documents, he
submits that the respondents/defendants have prima facie
case and the balance of conveyance is in their favour.
Therefore, the appellants/plaintiffs are not entitled for the
relief of injunction.
7. On considering the rival submissions of the
parties, the point that arises for consideration in this
appeal is:
Whether the appellants/plaintiffs have
made out a case for interference with the order
passed by the Trial Court?
8. It is not in dispute that originally the suit
property belongs to one Khaja Moinuddin and Khaja
Aminuddin. It is also not in dispute that by virtue of the
order dated 25.09.1987 passed by the Land Tribunal, Bidar
granting occupancy rights in respect of the land in Survey
No.102 measuring 17 acres 33 guntas in favour Lalappa,
Manik, Ramanna, Sharanappa and plaintiff No.9 were
recognized to be the persons in actual physical possession
of the suit land. The names of these persons during their
lifetime and after their demise, names of the
appellants/plaintiffs have been reflected and continue to be
entered in the revenue records, even as noted by the Trial
Court. It may be that by virtue of the sale deed executed
in the year 1965 in the name of Smt.Gundabai and
Smt.Nivrathi to the extent of 12 acres and 27 guntas, they
may have acquired title over suit property. Their names
were reflected admittedly till 1998. The fact remains that
their names have not been reflected in the revenue
records on and after the year 1998. The relevant
observation of the Trial Court in this regard is found at
paragraph Nos.12, 13, 14 and 15, wherein, the Trial Court
taking note of the RTC extract produced by the
appellants/plaintiffs has held that "prima facie on the basis
of the said documents, the appellants/plaintiffs have
proved their possession over the suit property." However,
in the aforesaid reasoning, the Trial Court taking note of
the order passed by this Court in W.P.No.29009/1991
quashing the order of the Land Tribunal, has come to the
conclusion that "there is a doubt in respect of the title of
and possession of the appellants/plaintiffs over the suit
property" and for this reason, the Trial Court has declined
at the stage of considering the interim application to grant
any interim order of injunction with regard to the
possession of the appellants/plaintiffs. It is this order,
which is impugned in this appeal.
9. It is settled position of law that a person in
peaceful possession is entitled to retain his possession and
in order to protect such possession he may even use
reasonable force to keep out a trespasser. A rightful
owner, who has been wrongfully dispossessed of the land
may retake the possession, if he can do so peacefully and
without use of unreasonable force. If the trespasser is in
settled possession of the property belonging to the rightful
owner, the rightful owner shall have to take recourse to
law; he cannot take the law in his own hand and evict the
trespasser or interfere with the possession. The law will
come to the aid of a person in peaceful and settled
possession by injuncting even a rightful owner from using
force or taking law in his own hand and also by restoring
him in possession and even from the rightful owner, if the
latter has dispossessed the prior possessor by use of force.
In the absence of proof of better title, possession or prior
peaceful settled possession is itself evidence of title. The
law presumes possession to go with the title unless
rebutted (Rame Gowda (D) by LRs. Vs. M.Varadappa
Naidu (D) by LRs. and Another - AIR 2004 SCC
4609).
10. The Coordinate Bench of this Court in the case
of B.V.Subbachari vs. B.K.Joyappa reported in ILR
1994 KAR 2505, has held that in a suit for permanent
injunction, the question of tenancy is not relevant, but the
only question is whether the plaintiff is in possession of the
property as on the date of the suit. The character, nature
and source of possession of the plaintiff are not very
relevant, but, only factum of possession is relevant. It
further observed that the Civil Court certainly has
jurisdiction to entertain a suit for injunctions and has
jurisdiction to pass appropriate interim orders during the
pendency of the suit. In the light of the aforesaid settled
position of law and in view of the appellants/plaintiffs
having established their possession through records of
right even as observed by the Trial Court at paragraph
Nos.13, 14 and 15 of its order, the settled possession of
the appellants/plaintiffs is prima facie established in
respect of the suit property. The balance of convenience is
in favour of the plaintiffs.
11. The observation of the Trial Court that since
the order of grant of occupancy rights is quashed by this
Court in W.P.No.200029/1991 by its order dated
09.08.1998, there is doubt created with respect to the title
and possession over the suit property cannot be
countenanced. The appellants/plaintiffs are merely
seeking an injunctive relief with regard to their possession
on the aforesaid facts and circumstances and based on the
revenue records produced. This, however, does not
preclude the respondents/defendants to assert their title
and seek possession of their property in the manner known
to law as held by the Apex Court in the case of Rame
Gowda (D) by LRs. vs. M. Varadappa Naidu (D) by
LRs. And Another reported in AIR 2004 SC 4609.
Therefore, what is being protected is the possession of the
plaintiffs in the interregnum till the defendants establishes
their title and take recourse in accordance with law to
recover the possession.
12. In that view of the matter and in view of the
law laid down by the Apex Court referred to above, the
point raised above is answered accordingly and following:
ORDER
i. The appeal filed by the appellants/plaintiffs is
allowed.
ii. The order of the Trial Court is set aside. The
application in I.A.1 filed by the appellants/plaintiffs
under Order 39 Rules 1 and 2 of CPC in
O.S.No.96/2021 is allowed.
iii. The respondents/defendants are restrained from
interfering with the possession of the
appellants/plaintiffs until disposal of the suit.
Sd/-
JUDGE
Srt
