Karnataka High Court
Smt Gowramma W/O Late Kuntaiah vs Sri Kullaiah S/O Late Amavase @ Amase on 8 December, 2023
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RSA No. 476 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 476 OF 2013 (INJ)
BETWEEN:
1. SMT GOWRAMMA
W/O LATE KUNTAIAH
AGED ABOUT 52 YEARS
2. KUM BHAGYA
D/O LATE KUNTAIAH
AGED ABOUT 32 YEARS
3. SRI H.K. SHIVALINGA
S/O LATE KUNTAIAH
AGED ABOUT 29 YEARS
4. SMT SHASHIKALA
D/O LATE KUNTAIAH
Digitally signed AGED ABOUT 27 YEARS
by R DEEPA
Location: High ALL ARE R/AT BEGUR VILLAGE,
Court of KASABA HOBLI
Karnataka MUTTUR POST,
PERIYAPATNA TALUK
MYSORE DISTRICT 572 106
...APPELLANTS
(BY SRI. S VENKATESH SHASTRY, ADVOCATE)
AND:
1. SRI KULLAIAH
S/O LATE AMAVASE @ AMASE
AGED ABOUT 52 YEARS
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RSA No. 476 of 2013
R/AT MUTTUR VILLAGE
AND POST OF KASABA HOBLI
PERIYAPATNA TALUK
MYSORE DISTRICT 572 106
2. SMT JAYA
D/O LATE AMAVASE @ AMASE
AGED ABOUT 42 YEARS
R/AT DODDAHARAVE VILLAGE,
HARNAHALLI HOBLI
PERIYAPATNA
MYSORE 572 106
...RESPONDENTS
(BY SRI. B ROOPESH FOR, ADVOCATE FOR R1
R2 SERVED)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DTD 9.1.2013 PASSED IN
R.A.NO.29/2011 ON THE FILE OF SENIOR CIVIL JUDGE AND
JMFC, HUNSUR, SITTING AT PERIYAPATNA, DISMISSING THE
APPEAL AND UPHOLDING AND CONFIRMING THE JUDGEMENT
AND DECREE DTD 5.4.2011 PASSED IN OS.NO.106/2003 ON
THE FILE OF CIVIL JUDGE AND JMFC, PERIYAPATNA.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This second appeal is filed by the appellants
challenging the judgment and decree dated 09.01.2013,
passed in R.A.No.29/2011 by the Additional Senior Civil
Judge and JMFC, Hunsur sitting at Periyapatna, confirming
the judgment and decree dated 05.04.2011 passed in
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O.S.No.106/2003 by the Civil Judge and JMFC,
Peiryapatna.
2. For the sake of convenience, parties are referred
to as per their ranking before the trial Court. Appellant
Nos.1 to 4 are defendant Nos.1 to 4 and the respondents
are the legal representatives of the deceased-plaintiff.
3. The brief facts leading rise to filing of this appeal
are as under:
The plaintiffs filed a suit for permanent injunction
against the defendants on the ground that the land in
Sy.No.84/7 measuring 2 acres situated at Muthur Village,
Kasaba Hobli, Periyapatna Taluk, Mysore District was
belonging to him having acquired the same under the
dharakasth in the year 1950-51. It is the case of the
plaintiffs that one Sri Amase i.e., father of the defendants,
who is the owner of adjacent land in Sy.No.84/8 are
interfering with the peaceful possession and enjoyment of
the plaintiffs over the suit land in Sy.No.84/7 measuring 2
acres. The plaintiffs requested the defendants not to
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interfere into the peaceful possession. But the defendants
did not give any heed to the request made by the
plaintiffs. Hence, cause of action arose for the plaintiffs to
file a suit for permanent injunction.
4. Defendants filed written statement contending
that the land in Sy.No.84/8 measuring 2 acres which is
located towards the north side of the suit schedule
property was originally granted to one Sri Kala under the
Dharakasth Rules in the year 1950 and eversince the date
of grant Kala was in possession. After his death, the
names of defendant Nos.1 and 7 have been entitled jointly
in respect of 2 acres of land in Sy.No.84/8. The defendants
are seriously disputing the boundaries of the suit schedule
property, wherein Amase has deliberately mentioned the
boundaries pertaining the land belonging to the
defendants. His legal representatives are brought on
record. Hence, on these grounds, sought for dismissal of
the suit.
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5. The Trial Court, on the basis of the above said
pleadings, framed the following issues:
1.ªÁ¢AiÀÄgÀÄ zÁªÁ zÁR®Ä ªÀiÁrzÀ ¢£ÁAPÀzÀAzÀÄ zÁªÁ
vÀ¥À²Ã®Ä D¹ÛAiÀÄ£ÀÄß PÁ£ÀÆ£ÀħzÀÞªÁV ¸Áé¢üãÀ
ºÉÆÃA¢zÀÝ£ÀÄß gÀÄdĪÁvÀÄ¥Àr¸ÀÄvÁÛgÉAiÉÆÃ?
2. zÁªÁ vÀ¥À²Ã®Ä D¹ÛUÉ CrØ CqÀZÀuÉAiÀÄÄAlÄ ªÀiÁrzÀÄÝ
¤dªÉÃ?
3.AiÀiÁªÀ DzÉñÀ?
6. In order to prove the case of the plaintiffs, 1st
legal representative of the deceased plaintiff was
examined as PW.1 and got marked 11 documents as
Exs.P1 to P11. Defendant No.2 examined as DW-1 and
got examined one witness as DW-2 and got marked 13
documents as Exs.D1 to D13. The trial Court on
assessment of oral and documentary evidence, answered
issue Nos.1 and 2 in the affirmative and consequently,
decreed the suit of the plaintiff and order of permanent
injunction was granted by restraining the illegal
interferences of defendant Nos.1 to 4 over the suit
schedule property.
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7. The defendants aggrieved by the judgment and
decree passed by the trial Court preferred an appeal in
R.A.No.29/2011 on the file of Additional Senior Civil Judge
and JMFC, Hunsur. The First Appellate Court, after hearing
the parties, has framed the following points for
consideration:
1. Whether the plaintiff proves that he is in
lawful possession of the schedule property?
2. Whether the defendant proves that schedule
property boundary includes in reality their
property?
3. Whether the interference in the impugned
judgment is called for?
4. What order?
8. The First Appellate Court, on re-assessment of
the oral and documentary evidence, answered point No.1
in the affirmative, point Nos.2 and 3 in the negative and
consequently dismissed the appeal filed by the defendants.
The defendants, aggrieved by the judgments and decrees
passed by the courts below, has filed this second appeal.
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9. This court admitted the appeal on the following
substantial question of law :
"In view of the judgment of the Apex Court in
the case of Anathula Sudhakar Vs. P.Buchi
Reddy by Legal representatives and others
reported in AIR 2008 SC 2023, was the
Appellate Court justified in decreeing the suit of
the plaintiff granting an injunction without
relegating the plaintiff to file a suit for
comprehensive relief to establish his title and
the identity of the property?"
10. Heard learned counsel for the parties.
11. Learned counsel for the defendants submits that
the boundary shown in the plaint schedule is in respect of
Sy.No.84/8 and not on Sy.No.84/7. He submits that there
is a dispute in regard to identity of the property. The
courts below without considering the dispute in regard to
identity of the property has passed the impugned
judgments and decrees. He submits that the defendants
have denied the title of the plaintiffs over the land in
Sy.No.84/8 but the plaintiffs have not sought for relief of
declaration of title. He submits that the suit for bare
injunction without seeking for a relief of declaration of title
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is not maintainable. The courts below without examining
the maintainability of the suit proceeded to pass the
impugned judgments and decrees.
12. Further, in order to buttress his arguments, he
has placed reliance on the judgment of the Hon'ble Apex
Court in the case of ANATHULA SUDHAKAR VS. P. BUCHI
REDDY reported in AIR 2008 SC 2033 Hence, on these
grounds, he prays to allow the appeal.
13. Per contra, learned counsel for the plaintiffs
submits that the plaintiffs are the owners in respect of
land bearing Sy.No.84/7 measuring 2 acres. He submits
that the plaintiffs have produced the records to show that
they are in possession and enjoyment of the land bearing
Sy.No.84/7. He submits that both the courts below are
justified in passing the impugned judgments. Hence, the
impugned judgments and decrees passed by the courts
below are just and proper and does not call for any
interference. Hence, on these grounds, he prays to dismiss
the appeal.
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14. Perused the records and considered the
submissions of learned counsel for the parties.
15. The plaintiffs in order to prove their case,
examined 1st legal representatives of the plaintiff as PW.1
and he has reiterated the plaint averments in the
examination-in-chief and produced the documents Exs.P1
to P5 are the RTC extracts in respect of land bearing
Sy.No.84/7, Ex.P6 is the index of land, Ex.P7 is the tax
paid receipt, Ex.P8 is the survey sketch, Ex.P9 is the
boundary certificate, Ex.P10 is the certified copy of the
order passed in P.T.C.K.L.No.(C.R)3/1997-98, Ex.P11 is
the original registered sale deed executed in favour of the
plaintiff, wherein the plaintiff has executed a registered
sale deed in favour of third party. Defendant No.2
examined herself as DW.1 and she has reiterated the
written statement averments in the examination-in-chief
and produced the documents and marked as Ex.D1 is the
grant certificate, Ex.D2 is the certified copy of the index of
land, Ex.D3 is the endorsement, Ex.D4 is the RTC extract,
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Ex.D5 is the Phode Thakthe, Ex.D6 is the survey sketch,
Ex.D7 is the boundary certificate, Ex.D8 is the tax paid
receipt, Ex.D9 is the grant certificate, Ex.D10 is the
sketch, Ex.D11 is the certified copy of the letter written by
Tahsildar, Periyapatna to the Police Inspector, Exs.D12
and D13 are the mahazar and further in order to prove
that the defendants are in possession of the property i.e.,
the land bearing Sy.No.84/8 examined one witness as
DW.2. It is the case of the plaintiffs that the plaintiffs have
purchased the land bearing Sy.No.84/7 measuring 2 acres
wherein the defendants contend that the boundary shown
in respect of Sy.No.84/7 pertains to land in Sy.No.84/8.
The defendant is the owner in respect of land bearing
Sy.No.84/8. As there is a dispute in regard to identity of
the suit property, the plaintiffs are not taken any steps to
appoint a Commissioner to ascertain whether the
boundary shown in the plaint whether it pertains to
Sy.No.84/8 or Sy.No.84/7. Further, the defendant has also
denied the title of the plaintiffs over the land in respect of
Sy.No.84/7. The plaintiffs ought to have filed a suit for
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relief of declaration of title. On the contrary, the plaintiffs
have filed only a suit for bare injunction.
16. The Hon'ble Apex Court in the case of
ANATHULA SUDHAKAR (SUPRA) para No.17 has laid down
the guidelines under what circumstance a suit for
permanent injunction is maintainable. After going through
the judgment passed in ANATHULA SUDHAKAR (SUPRA),
there is a dispute in regard to title and also identity of the
property. Though the courts below without looking into the
said aspect has proceeded to passed the impugned
judgments and decrees. The judgments and decrees
passed by the courts below are contrary to the law laid
down by the Hon'ble Apex Court in the case of ANATHULA
SUDHAKAR (Supra). The plaintiffs ought to have filed a suit
for relief of declaration of title. The plaintiffs have filed
only a suit for bare injunction. Hence, the suit filed by the
plaintiffs' is not maintainable. The courts below have
committed an error in passing the impugned judgments.
In view of the above discussion, I answer substantial
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question in negative holding that the courts below have
committed an error in decreeing the suit for permanent
injunction without relegating the plaintiffs to file a suit for
comprehensive relief and to establish his title and identity
of the property.
17. Accordingly, I proceed to pass the following:
ORDER
i. The appeal is allowed.
ii. The judgment and decree passed by the
trial Court in O.S.No.106/2003 by the Civil
Judge and JMFC, Peiryapatna and the
judgment and decree passed in
R.A.No.29/2011 by the Additional Senior
Civil Judge and JMFC, Hunsur sitting at
Periyapatna, are set aside.
iii. Consequently, the suit of the plaintiffs is
dismissed.
iv. Liberty is reserved to the plaintiffs to file a
comprehensive suit, if law permits.
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v. Nothing stated herein or by the courts
below shall be construed as expression of
any opinion regarding title, in any future
suit for declaration and consequential
reliefs that may be filed by the parties, in
accordance with law. Parties to bear their
respective costs.
In view of disposal of the appeal, I.A.No.1/2012 does
not survive for consideration.
Sd/-
JUDGE
SSB
