Karnataka High Court

Smt. K V Padma vs Sri. K R Manjunatha Reddy on 5 January, 2022

Bench: Ashok S.Kinagi

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 05TH DAY OF JANUARY 2022

                          BEFORE

        THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

            M. F. A. NO.5835 OF 2021 (CPC)

BETWEEN:

1.    SMT. K.V. PADMA,
      AGED ABOUT 61 YEARS,
      D/O LATE K.D. VENKATASWAMY REDDY,
      W/O LATE VENKATESH SHETTY,
      R/AT NO.102, PRIME, HBR-100,
      1ST CROSS ROAD, 1ST BLOCK,
      HBR LAYOUT, BENGLAURU - 560 043.

2.    SMT. SUMALATHA V.,
      AGED ABOUT 35 YEARS,
      D/O LATE VENKATESH REDDY,
      W/O G. MANJUNATH REDDY,
      R/AT NO.520, AISHWARYA SUNFLOWER
      APARTMENT, OMBR LAYOUT,
      DODDABANASAWADI,
      BENGLAURU - 560 043.

3.    SMT. VINITHA V.,
      AGED ABOUT 33 YEARS,
      D/O LATE VENKATESH REDDY,
      W/O BALASUNDAR REDDY,
      R/AT VERABHADRA NILAYA,
      CMR GARDEN, 2ND MAIN,
      4TH BLOCK, HBR LAYOUT,
      BENGALURU - 560 043.
                                             ...APPELLANTS

(BY SRI. K.K. VASANTH, ADVOCATE)
                                 2


AND:

       SRI. K.R. MANJUNATHA REDDY,
       AGED ABOUT 33 YEARS,
       S/O LATE K.V. RAJU REDDY,
       R/AT NO.5AC-301, 5TH A CROSS,
       HRBR III BLOCK, NEXT TO BBMP WARD,
       KALYANAGARA POST,
       BENGLAURU - 560 043.
                                                  ...RESPONDENT

(BY SRI. D.V. SADASHIVA REDDY, ADVOCATE)

     THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DT.09.09.2021 PASSED ON IA NO.1 IN
O.S.NO.525/2021 ON THE FILE OF THE XIX ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU CITY, (CCH-18),
DISMISSING IA NO.1 FILED U/O.39 RULE 1 AND 2 R/W SEC.151
OF CPC.


    THIS MFA COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                           JUDGMENT

The appellants being aggrieved by the order on

I.A.No.1 dated 09.09.2021 passed in O.S.No.525/2021 by

the XIX Additional City Civil and Sessions Judge, Bengaluru

(CCH-18), have filed this appeal.

2. Brief facts leading rise to filing of this appeal are

as under:

That appellants have filed a Suit in O.S.No.525/2021

against the respondent for permanent injunction to restrain

him from alienating and encumbering the Schedule-A and

Schedule-B properties. In the said suit, the appellants have

filed an application I.A.No.1 seeking for the relief of order of

temporary injunction to restrain the respondent from

alienating or encumbering the Schedule-A and Schedule-B

properties. The appellants in support of their application

have filed affidavit alleging that the respondent is involved in

the real estate business and prevailed upon the appellants

herein to execute certain documents so as to enable him to

enter into joint development agreement with M/s. Jaista

Constructions and get their respective shares in the

developed area. Believing the version of the respondent, the

appellants have signed several papers on 14.07.2014

without knowing the nomenclature and the nature of the

documents that has been executed by them. The

respondent along with one Smt.Prema had also executed a

registered sale deed in favour of M/s. Sri. CMR Gnanardhana

Trust to an extent of 11,289.10 square feet out of 47,000

square feet in the property bearing No.230/96. The

appellants further submits that they have come to know

about the sale deed executed in favour of the Trust and

obtained the certified copy on 19.09.2020, which has got

reference with regard to the earlier documents said to have

been executed by the appellants and others in respect of

above said 47,000 square feet of land in New No.230/96.

The appellants filed the present suit for bare injunction.

2.2. The respondent appeared and filed objection to

the said suit contending that the suit filed by the appellants

is not maintainable. It is further contended that the

appellant No.1 and her daughters i.e., appellants No.2 and 3

have executed Release Deed dated 14.07.2014 in favour of

respondent and they have released all their rights, interest

etc., in respect of undivided share in the property. In turn

Smt.Sharadamma has released all her rights in respect of

her undivided share in favour of her daughter-in-law

Smt.Umadevi. Thus, the respondent claims to be the

absolute owner in possession and enjoyment of the property

on the basis of Release Deed. On the strength of Release

Deed the name of respondent was entered in the Municipal

records. It is contended that the suit filed by the appellants

is not maintainable. Hence, prayed to reject the

application. The Trial Court after hearing the arguments on

both sides, rejected the application filed by the appellants.

Hence, this appeal.

3. Heard the learned counsel for appellant.

4. Learned counsel for the appellants submits that

the Release Deed executed by the appellants in favour of

respondent, as the respondent has failed to comply with the

conditions mentioned in the Release Deed. Hence, there is

no necessity to file a suit for declaration. Hence, he submits

that the Trial Court has committed an error in rejecting the

application. He further submits that the observation made

by the Trial Court in the impugned order that the appellants

suit without seeking for the relief of declaration is not

maintainable is arbitrary. Hence, on these grounds, he

prays to allow the appeal.

5. Perused the records and considered the

submissions of the learned counsel for the parties.

6. It is not in dispute that the appellants have

executed a Release Deed in favour of respondent on

14.07.2014. On the strength of the Release Deed, the name

of respondent is appearing in the Municipal records. The

appellants themselves have produced the copy of Release

Deed. From the perusal of the Release Deed, it is clear that

the appellants have executed a Release Deed and handed

over the possession of the suit property in favour of

respondent. If the respondent has failed to comply with the

conditions mentioned in the Release Deed, the appellants

ought to have filed a suit for the relief of declaration. In the

present case, the appellants have filed a suit for bare

injunction. In view of the law laid down by the Hon'ble

Apex Court in the case of ANATHULA SUDHAKAR vs

P. BUCHI REDDY (Dead) by L.Rs AND ORS. reported in

AIR 2008 SC 2033, has held as under:

"17. 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 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 (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 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."

7. The Hon'ble Apex Court has held that when there

is a dispute in regard to the issue of title, a suit for

declaration is mandatory. In the present case, the appellants

have filed a suit for bare injunction without seeking for the

relief of declaration and also further the Trial Court was

justified in recording a finding that the suit for mere

injunction is not maintainable, without seeking for the relief

of declaration. Hence, the Trail Court was justified in holding

that the appellants have failed to establish a prima-facie

case and balance of convenience and also irreparable loss.

This Hon'ble Court in the case of PATEL ENTERPRISES -

vs- M.P.AHUJA reported in ILR 1992 KAR 3772 held that