Suryakant S/O Late Ramchandra And ... vs The Assistant Executive Engineer ...
2022 Latest Caselaw 3367 Kant

                           1




         IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

     DATED THIS THE 28TH DAY OF FEBRUARY, 2022

                        BEFORE

      THE HON'BLE MR.JUSTICE ASHOK S. KINAGI


                 RFA No.200013/2014

BETWEEN:

1.     SURYAKANT
       S/O LATE RAMCHANDRA
       AGED ABOUT: 48 YEARS, OCC:BUSINESS
       R/O RAVOOR, TALUKA CHITTAPUR,
       DIST:GULBARGA - 585 211.

2.     CHANDRAKANT
       S/O NAGENDRA
       AGE: 33 YEARS, OCC:BUSINESS
       R/O RAVOOR, TALUKA CHITTAPUR,
       DIST:GULBARGA - 585 211.
                                            ...APPELLANTS
(BY SRI.VENKATESH C MALLABADI, ADVOCATE)

AND

1.     THE ASSISTANT EXECUTIVE ENGINEER
       P.W.D.OFFICE, TQ.CHITTAPUR.
       DIST: GULBARGA - 585 211.

2.     THE STATE OF KARNATAKA
       REPRESENTED BY DEPUTY COMMISSIONER GULBARGA
       MINI VIDHANA SOUDHA,
       GULBARGA - 585 101.

3.     THE SECRETARY GRAM PANCHYAT
       RAVOOR TQ.
                              2




      CHITTAPUR
      DIST:GULBARGA - 585 211.
                                           ... RESPONDENTS
(BY SMT. MAYA T.R., HCGP FOR R1 & R2
    SRI.PRASHANT S.KUMMAN, ADV. FOR R3)

      This Regular First Appeal is filed under Section 96 of
the CPC praying to allow this appeal and set aside the
judgment     and     decree    10.12.2013       passed    in
O.S.No.22/2012 on the file of the Senior Civil Judge at
Chittapur, and to pass any other appropriate orders.

      This appeal coming on for Final Hearing, this day,
the Court delivered the following:-


                       JUDGMENT

This appeal is filed by the plaintiffs challenging

the judgment and decree passed in O.S.No.22/2012

dated 10.12.2013 by the Senior Civil Judge, Chittapur.

2. For the sake of convenience, parties are

referred to as per their ranking before the Trial Court.

Appellants are plaintiffs and respondents are

defendants before the tribunal.

3.1. Facts giving rise to filing of this appeal are

as under:

The plaintiffs have filed the suit against

defendants for perpetual injunction contending that,

they are the owners in possession of the suit house

bearing No.290 to 292 situated at Ravoor village of

Chittapur Taluk which is a commercial establishment

consisting of 12 rooms, 1 polishing hall, one M.S.Hall,

well electrical magnet store room and open yard. The

plaintiffs have inherited the suit property from their

fore fathers. The father of plaintiffs constructed the

house long back after obtaining a valid permission and

also availed the permission for electric supply, water

supply and after obtaining permission, they are

regularly paying property tax. Plaintiff No.1 is

carrying stone polishing unit under the name and style

of 'M/s Rawoor Stone Polishing Company', by

obtaining valid licence from the Gram Panchayat. As

road widening work from Wadi to Ravoor had to be

carried out, defendant No.1 issued notice to the

plaintiffs on 19.12.2001 for removing the structure

and the building over the suit property alleging that

the said construction is unauthorized, illegal and is

required to be removed. Respondent No.3- Gram

Panchayath, Ravoor issued similar type of notice on

the instigation of defendant No.1 for widening the

road alleging that the plaintiffs have unauthorizedly

put up construction over the suit property and the

same is required to be removed. The plaintiffs filed a

suit in O.S.No.37/2006 and the said suit came to be

dismissed. The plaintiffs, aggrieved by the judgment

and decree passed in the aforesaid suit, preferred an

appeal in R.A.No.45/2008. The said appeal came to

be allowed. Now, the plaintiffs, apprehending that

building of plaintiffs is about to be dismantled by

defendant No.1, inspite of they submitting the decree

passed in RA No.45/2008, have filed the suit for

perpetual injunction.

3.2 Defendant No.1 filed written statement and

defendant No.2 adopted the written statement filed by

defendant No.1. In the written statement filed by

defendant Nos.1 and 2, they have specifically denied

the title of the plaintiffs over the suit schedule

properties. Further, it is contended that there is no

cause of action for filing the suit and the alleged cause

of action shown in the plaint is false and baseless. It

is also contended that defendant Nos.1 and 2 were

not parties in the suit in O.S.No.37/2006. The decree

passed in the aforesaid suit is not binding on

defendant Nos.1 and 2. Further, it is contended that

the road which passes from Rawoor-Wadi is a part of

State Highway No.149 starting from Shahapur to

Shivrampur (A.P). During October 2010, the said

construction work has been approved at the Gulbarga

Cabinet Meeting and the construction cost from

Gulbarga to Wadi is estimated at Rs.37 crores

covering 36 KM length of road. It is further contended

that the suit filed by the plaintiffs without seeking the

relief of declaration is not maintainable. Hence, prays

to dismiss the suit.

3.3 The Trial Court on the basis of the

pleadings framed the following issues;

(a) Whether the plaintiffs prove that, they are in lawful possession and enjoyment over the suit property as on date of filing of this suit?

(b) Whether the plaintiffs further prove that, the alleged interference and obstruction is said to have been caused by the defendants?

(c) Whether the defendants prove that, suit filed by the plaintiffs is not maintainable without seeking the relief of declaration?

(d) Whether the plaintiffs are entitled the relief as prayed for?

(e) What order, what decree?

3.4 Plaintiff No.2 examined himself as PW.1

and examined two witnesses as PWs.2 and 3 and got

marked the documents as Exs.P1 to P7. Defendant

No.1 examined the Assistant Executive Engineer, PWD

as DW.1 and got marked the documents as Exs.D1 to

D5. DW.1 had remained absent for long time. Hence,

the trial Court has discarded the evidence of DW.1.

The trial Court after considering the oral and

documentary evidence produced by the parties, has

held that the plaintiffs have failed to prove that they

are in lawful possession and enjoyment over the suit

property as on the date of the suit. Further, the

plaintiffs have failed to prove the alleged interference

by the defendants and further held that the

defendants have failed to prove that the suit is not

maintainable without seeking the relief of declaration.

The plaintiffs aggrieved by the judgment and decree

passed by the trial Court have filed this appeal.

3. Having heard the learned counsel for the

parties, the points that arise for consideration;

(a) Whether the plaintiffs prove that they are in lawful possession and enjoyment over the suit property as on the date of filing of this suit?

(b) Whether the defendants prove that the suit filed by the plaintiffs is not maintainable without seeking the relief of declaration?

(c) Whether the plaintiffs have made out grounds for interference?

(d) Whether the plaintiffs have made out grounds to entertain IA.No.2/2019.

(e) What order or decree?

4. Learned counsel for the plaintiffs submitted

that the plaintiffs are in peaceful possession of the suit

property. Further, in order to establish the possession

of the suit property, the plaintiffs examined two

witnesses as PWs.2 and 3 and further the plaintiffs

have also produced Khata extracts, tax paid receipts

and also the notice issued by defendant No.1 and the

certified copy of the judgment and decree passed in

R.A.No.45/2008. He further submits that the trial

Court has committed an error in not considering the

judgment and decree passed in RA.No.45/2008.

Hence, on these grounds he prays to allow the appeal.

5. Per contra, learned HCGP submits that the

trial Court was justified in dismissing the suit of the

plaintiffs. She submits that the defendants denied the

title of the plaintiffs over the suit property. She further

submits that the suit for perpetual injunction without

seeking for relief of declaration of ownership is not

maintainable. Further she has placed reliance on the

judgment of the Hon'ble Apex Court in the case of

ANATHULA SUDHAKAR VS. P. BUCHI REDDY (D) BY LRS.

& OTHERS reported in AIR 2008 SC 2033, which is

reiterated in the case of T.V.Ramakrishna Reddy

Vs. M.Mallappa and Another, disposed off on

07.09.2021 in C.A.No.5577/2021. Hence, she submits

that the judgment and decree passed by the trial

Court is just and proper and does not call for any

interference. Hence, prays to dismissed the appeal.

Re Point No.1:

6. It is the case of the plaintiffs that they are

the owners of the suit schedule property and it is a

commercial establishment consisting of 12 rooms. In

order to establish the lawful possession and

enjoyment of the suit property, plaintiff No.2

examined himself as PW.1. He has reiterated the

plaint averments in his examination-in-chief and

further plaintiffs have produced copy of the judgment

passed in R.A.No.45/2008. In order to establish

possession, the plaintiffs, except producing the copy

of the judgment in RA.No.45/2008 and tax paid

receipts, have not produced any other documents to

show that they are in possession of the suit property.

Further, in order to support the case of the plaintiffs,

plaintiffs examined PWs.2 and 3. PW.2 has stated in

his examination-in-chief with regard to the possession

of plaintiffs over the suit property. But in the cross-

examination, he has clearly admitted that suit

property falls within the margin of State Highway.

Further, PW.3 also admitted that the suit property

come within the boundary of State Highway road. The

trial Court relying upon the admission of the PWs.2

and 3 has recorded a finding that the plaintiffs have

failed to establish that they are in possession of the

suit property. From the perusal of the judgment

passed in RA.No.45/2008, which is produced by the

plaintiffs, it is noticed that the defendants are not

parties to the suit. The judgment and decree passed

in the aforesaid suit/appeal is not binding on the

defendants. The trial Court was justified in recording

a finding that the plaintiffs have failed to establish

that they are in possession and enjoyment of the suit

schedule property. Accordingly, point No.1 is

answered in negative.

Re Point No.2 :

8. Smt. Maya T.R., learned HCGP submits that

the defendants have filed written statement, wherein

the defendants have denied the title of the plaintiffs

over the suit property. In spite of it, the plaintiffs have

failed to seek relief of declaration. She further

submits that the suit for mere injunction without

seeking relief of declaration is not maintainable.

Admittedly, the plaintiffs have filed the suit for

perpetual injunction wherein defendant Nos.1 and 2

have specifically denied the title of the plaintiffs over

the suit property. When a cloud is cast on the title of

the plaintiffs over the suit property, it was for the

plaintiffs to file a suit for the relief of declaration. The

Hon'ble Apex Court in the case of ANATHULA

SUDHAKAR VS. P. BUCHI REDDY (D) BY LRS. & OTHERS

reported in AIR 2008 SC 2033, has reiterated in the

paragraph Nos.21 and 24, as under;

"21. The plaintiffs and their witnesses gave evidence to the effect that Damodar Rao represented that his sister Rukminibai was the owner of the plot and negotiated for sale of the several portions thereof in favour of plaintiffs and PW3, and that Damodar Rao had attested the sale deeds in their favour and identified his sister as the vendor executant before the Sub-

Registrar, at the time of registration of the sale deeds. It is no doubt true that if that was the position, it is possible for them to contend that having regard to section 41 of Transfer of Property Act, when the ostensible owner Rukminibai sold the property with the implied consent of Damodar Rao, the defendant as a transferee from Damodar Rao could not contend that the sales were not valid. They also alleged that defendant was a close

relative of Damodar Rao and the sale in favour of defendant was only nominal, intended to defeat their title. But Damodar Rao in his evidence denied having made the oral gift or having attested the sale deeds in favour of plaintiffs. He also denied having identified his sister at the time of registration of the sale deeds. Whether Rukminibai's evidence and other plaintiffs' witnesses should be believed or whether evidence of Damodar Rao should be believed on the question of title, can be examined only when there are necessary pleadings and an issue regarding title. Further, where title of plaintiffs is disputed and claim for possession is purely based on title, and the plaintiffs have to rely on various principles of law relating to ostensible ownership and section 41 of TP Act, validity of a oral gift by way of 'pasupu kumkum' under Hindu Law, estoppel and acquiescence, to put forth a case of title, such complicated questions could properly be examined only in a title suit, that is a

suit for declaration and consequential reliefs, and not in a suit for an injunction simpliciter.

24. The third question of law formulated by the High Court, is also a mixed question of fact and law firstly whether there was an oral gift and secondly whether the alleged oral gift was valid. Here again, there was no averment in the plaint in respect of any gift, oral or otherwise, by Damodar Rao in favour of Rukminibai or about its validity.

Consequently there was no opportunity to the defendant to deny the oral gift in his written statement. There was no issue on this aspect also. Therefore, this question, which could not have been considered in the suit, could not also have been considered in the second appeal".

The said view is subsequently reiterated by the

Hon'ble Apex Court in T.V.Ramakrishna Reddy's

case (supra). Admittedly the plaintiffs have filed suit

for bare injunction without seeking for the relief of

declaration. Hence the suit filed by plaintiffs for mere

injunction is not maintainable. Hence, the trial Court

was justified in holding that the defendants have

proved that the suit for mere injunction without

seeking for the relief of declaration is not

maintainable. Accordingly, point No.2 is answered in

affirmative.

Re Point No.3 :

9. The trial Court after considering the

material on record was justified in holding that the

plaintiffs have failed to establish the possession over

the suit property and further was justified in recording

a finding that the suit for mere injunction without

seeking for relief of declaration is not maintainable.

I do not find any illegality in the impugned

judgment and decree. In view of the above

discussions, point No.3 is answered against the

plaintiffs.

Re Point No.4 :

10. Plaintiffs have filed an application seeking

for amendment of plaint. In support of the application,

the plaintiffs have filed an affidavit contending that on

03.07.2018, the respondents have issued a letter

intimating of demolition despite the decree of

injunction being granted against Gram Panchayat and

on 15.05.2019, defendant Nos.1 and 2 through their

men and agents had illegally trespassed the suit

property and started bulldozing the suit property and

have illegally demolished the compound and room

constructed with Shahabad stone bricks. It is

contended that the proposed amendment is necessary

for the purpose of deciding the dispute.

10.1 Respondents have not filed objections to

the said application.

10.2 From the perusal of the application, it is

seen that defendant Nos.1 and 2 have filed the written

statement 19.04.2012, wherein defendant No.1 has

clearly denied the title of the plaintiffs over the suit

property. Further, the plaintiffs have also examined

the witnesses wherein PWs.2 and 4 have clearly

admitted that the suit property falls within the road

margin. In spite of the admission made by the

plaintiffs' witnesses, the plaintiffs have not made any

attempt before the trial Court for amendment of

pleadings. The plaintiffs filed an application under

Order VI Rule 17 r/w 151 of CPC for amendment to

plaint and sought for proposed relief of mandatory

injunction against the defendants, any agent or

persons acting or claiming under the respondents

from interfering with the possession of the suit

property of the plaintiffs and also sought for a

direction to restore the demolished compound wall

and to restore the room.

10.3 As observed, the defendants have denied

the title of the plaintiffs over the suit property. The

plaintiffs have not sought for the relief of declaration

and he suit for bare injunction is not maintainable.

Even if the proposed amendment is allowed, no

purpose would serve. The proposed amendment

sought by the plaintiffs is only for the relief of

mandatory injunction.

10.4 Hence, the plaintiffs have not made out a

case to allow IA No.2/2019. In view of the above,

point No.4 is answered against the plaintiffs.

11. In view of the above discussions, the

plaintiffs have failed to establish that the judgment

and decree passed by the trial Court is arbitrary and

capricious. I do not find any grounds to interfere with

the impugned judgment and decree passed by the

trial Court.

12. Accordingly, I proceed to pass the following

order :

ORDER

i) The appeal is dismissed;

ii) The judgment and decree passed by the trial Court

is hereby confirmed;

iii) I.A. No.2/2019 filed by the plaintiffs is dismissed.

Sd/-

JUDGE

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