Karnataka High Court

Babu Sab S/O Imam Sab vs Hussain Sab S/O Rajasab Bagali on 11 January, 2023

Bench: M.G.S. Kamal

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                                      RSA No. 5258 of 2008

IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

       DATED THIS THE 11TH DAY OF JANUARY, 2023

                         BEFORE
          THE HON'BLE MR JUSTICE M.G.S. KAMAL
     REGULAR SECOND APPEAL NO. 5258 OF 2008 (INJ-)


BETWEEN:

1.    BASHU SAB S/O IMAM SAB
      SINCE DECEASED BY HIS LRS.

1A. HUSSAINPEERA S/O BASHU SAB,
    AGE:47 YEARS, OCC: AGRICULTURE,
    R/O: HULGI VILLAGE, TQ & DIST: KOPPAL.

1B. IMAMSAB S/O BASHU SAB,
    AGE:39 YEARS, OCC: AGRICULTURE,
    R/O: HULGI VILLAGE, TQ & DIST: KOPPAL.

1C. JEELANISAB S/O BASHU SAB,
    AGE:38 YEARS, OCC: TEACHER,
    R/O: HULGI VILLAGE, TQ & DIST: KOPPAL.

1D. HAJIALI BABA S/O BASHU SAB,
    AGE:32 YEARS, OCC: AGRICULTURE,
    R/O: HULGI VILLAGE, TQ & DIST: KOPPAL.

1E.   JAVID S/O BASHU SAB,
      AGE:30 YEARS, OCC: AGRICULTURE,
      R/O: HULGI VILLAGE, TQ & DIST: KOPPAL.

1F.   SAILAN BABA S/O BASHU SAB,
      AGE:28 YEARS, OCC: AGRICULTURE,
      R/O: HULGI VILLAGE, TQ & DIST: KOPPAL.

1G. FARIDA BEGAUM W/O ANWAR BASHA,
    AGE:45 YEARS, OCC: HOUSEWIFE,
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                                    RSA No. 5258 of 2008

    R/O: HULGI VILLAGE, TQ & DIST: KOPPAL.

1H. SHAHIDA BEGAUM W/O SABUDDIN SAB,
    AGE:35 YEARS, OCC: HOUSEWIFE,
    R/O: HULGI VILLAGE, TQ & DIST: KOPPAL.

                                             ...APPELLANTS

(BY SRI. DEEPAK C MAGANUR, ADV. (NOC OBTAINED)
 SRI.CHANDRASHEKHAR PATIL & SRI.A.R.KOLLI, ADVS.)

AND:

HUSSAIN SAB S/O RAJASAB BAGALI
AGE MAJOR, OCC: AGRICULTURE,
R/O HULGI VILLAGE, TQ & DIST: KOPPAL.

                                             ...RESPONDENT

(BY SRI. B SHARANABASAWA, ADV.)

       THIS RSA IS FILED UNDER SECTION 100 OF CPC,

AGAINST THE JUDGMENT AND DECREE DATED 26.09.2008

PASSED IN R.A.NO.32/2007 ON THE FILE OF THE CIVIL JUDGE

(SR.DN.), KOPPAL, ALLOWING THE APPEAL AND SETTING

ASIDE THE JUDGMENT AND DECREE DATED 19..11.2007

PASSED IN O.S.NO.80/2001 ON THE FILE OF THE CIVIL JUDGE

(JR.DN.) & JMFC, KOPPAL.



       THIS APPEAL COMING ON FOR FINAL HEARING, THIS

DAY, THE COURT DELIVERED THE FOLLOWING:
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                                         RSA No. 5258 of 2008

                        JUDGMENT

1. Present appeal is by the plaintiff (now

represented through his LRs.), being aggrieved by the

judgment and order dated 26.09.2008 passed in

R.A.No.32/2007 on the file of the Civil Judge (Sr.Dn.),

Koppal (hereinafter referred to as 'the First Appellate

Court'), in and by which, the First Appellate Court while

allowing the appeal filed by the defendant set aside the

judgment and decree dated 19.11.2007 passed in

O.S.No.80/2001 on the file of the Civil Judge (Jr.Dn.),

Koppal (hereinafter referred to as 'the Trial Court).

2. The above suit is filed by the plaintiff for relief

of permanent injunction against the defendant on the

premise that suit property being vacant piece of land

measuring 30'x27' was allotted to the plaintiff in the year

1973-74 by the Tahasildar, Koppal. That ever since the

date of allotment, the plaintiff is in peaceful possession

and enjoyment of the suit property. That the defendant

without having any right, title or interest over the suit

RSA No. 5258 of 2008

property was unnecessarily interfering with the peaceful

possession and enjoyment of the same by the plaintiff.

Hence the suit.

3. The defendant in his written statement

specifically denied the case of the plaintiff. It is contended

by the defendant that he is the owner in possession of

ancestral house measuring 55'x31.5' situated on the

northern side of the open space being claimed in the suit

by the plaintiff. That the plaintiff in collusion with the

Revenue Authorities, had fabricated and created

documents. He had not created any right, title or interest

in favour of the plaintiff in respect of the suit property. It

is further contended by the defendant that he has put up

foundation on the suit property and has also constructed a

bathroom, which is used by the defendant. The defendant

has also disputed the description of the property and also

the claim of the plaintiff that the suit property was allotted

by the Panchayat is also denied on the premise that

Panchayat having no right or authority to allot the suit

RSA No. 5258 of 2008

property to the plaintiff. It is also contended that the

plaintiff has not produced any document to show his

possession over the suit property.

4. Based on the aforesaid pleadings, the Trial

Court framed the following issues:

1. Whether the plaintiff proves that he is in lawful possession of the suit property as on the date of the suit?

2. Whether the plaintiff further proves the alleged interference by the defendant?

3. Whether the plaintiff is entitled to the relief as sought?

4. What order or decree?

5. The plaintiff examined himself as PW1 and two

additional witnesses as PW2 and 3 and exhibited 6

documents marked as Exs.P1 to P6. The defendant

examined two witnesses as DW1 and 2 and exhibited 2

documents marked as Exs.D1 and D2.

6. The Trial Court on appreciation of evidence,

decreed the suit of the plaintiff and consequently issued

RSA No. 5258 of 2008

relief of permanent injunction in favour of the plaintiff

restraining the defendant from causing interference into

the peaceful possession and enjoyment by the plaintiff

over the suit property.

7. Being aggrieved by the same, the defendant

filed regular appeal in R.A.No.32/2007 before the First

Appellate Court. On the grounds urged therein, the First

Appellate Court framed the following points for its

consideration:

1. Whether the appellant/defendant proves that the plaintiff was not in possession of the suit property as on the date of the suit?

2. Whether the appellant/defendant proves that the Trial Court has committed an error in appreciating the evidence, thereby wrongly answered issue No.1 & 2 in favour of the plaintiff, therefore interference of this Court is required?

3. What order?

8. The First Appellate Court while answering issue

Nos.1 and 2 in the affirmative, allowed the appeal and set

aside the judgment and decree dated 19.11.2007 passed

RSA No. 5258 of 2008

in O.S.No.80/2001 and consequently dismissed the suit.

Being aggrieved by the aforesaid judgment and order

passed by the First Appellate Court, the plaintiff is before

this Court in this regular second appeal.

9. This Court by order dated 18.06.2013 while

admitting the above appeal, framed the following

substantial question of law:

"Whether the First Appellate Court was justified in reversing the finding of the Trial Court in accepting quibala at Ex.P2 granting relief of injunction in favour of the plaintiff?

10. Sri.Deepak C. Maganur, learned counsel for the

appellants reiterating the grounds urged in the

memorandum of appeal submits;

10.1. That the First Appellate Court failed to

appreciate that the original plaintiff had acquired right,

title and interest over the suit property in terms of the

allotment letter (quibala) as per Ex.P2, which was issued

by the competent Authority. The said document not having

been challenged, set aside or withdrawn by the issuing

RSA No. 5258 of 2008

Authority, it was not open for the defendant to have

questioned the same. He submits that the Trial Court

committed no error in accepting and relying upon the said

document while granting relief of injunction as sought for,

which the First Appellate Court ought not to have

interfered with.

10.2. That the First Appellate Court further erred in

perusing the condition in Ex.P2, requiring plaintiff to put

up construction and the suit property being left vacant,

resulting in purported violation of the said condition as the

same was unwarranted for the purpose of determination of

the lis between the parties. He submits that questioning

violation of terms of Ex.P2, if any, was open to the issuing

Authority and it was not therefore open for the First

Appellate Court to have adverted to the said issue, which

was nobody's case.

10.3. That the First Appellate Court erred in placing

reliance on the rough sketch prepared by the defendant

produced at Ex.D1. The rough sketch did not depict true

RSA No. 5258 of 2008

picture with regard to possession of the defendant over

the suit property. The First Appellate Court was therefore

grossly erred in misreading the evidence produced by the

parties and consequently allowed the appeal and

dismissed the suit giving rise to substantial question of law

as framed above requiring to be answered in the

affirmative in favour of the appellants. Hence, he seeks for

allowing of the appeal.

11. On the other hand, Sri.B.Sharanabasawa,

learned counsel for the respondent justifying the order

passed by the First Appellate Court submits;

11.1. That the plaintiff has categorically admitted

with regard to putting up of foundation and also

construction/extension of bathroom in the portion of suit

property and being utilized by the defendant till date.

11.2. Referring to the deposition of PW1 recorded on

02.01.2007, which is extracted in the judgment passed by

the First Appellate Court, he submits that the said

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RSA No. 5258 of 2008

question/suggestion were made to the witness based on

the contents of Ex.D1 and the same not having been

denied by PW1, amounts to admission.

12. He further submits that the plaintiff not having

produced any material evidence with regard to his

possession, is not entitled for relief of injunction. As

regards Ex.P2 is concerned and the reason given by the

Trial Court of same being 30 years old, learned counsel

submits that the conclusion arrived at by the Trial Court

with regard to age of the document, is incorrect and the

same was approximately 27 years old.

13. That the First Appellate Court has taken note of

the same at paragraph 10 of its judgment which is just

and proper. He also points out that the First Appellate

Court has also taken note of the fact that Ex.P2 which is

relied upon by the plaintiff does not contain the surname

of the plaintiff giving rise to a doubt on the claim of the

plaintiff with regard to the very allotment of the same by

the Authority. He submits that the First Appellate Court

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RSA No. 5258 of 2008

has not committed any error in allowing the appeal and

dismissing the suit. Hence, he submits that the appeal be

dismissed answering substantial question of law in favour

of the plaintiff.

14. Heard the learned counsel for the appellants

and the respondent and perused the records.

15. It is to be seen that the suit is one for bare

injunction. The plaintiff has sought for the relief of bare

injunction based in quibala, a allotment letter which is at

Ex.P2 purported to have been issued by the Tahasildar. In

the written statement at paragraph 2, the defendants has

pleaded as under:

"2. That, the allegations made in para No.1 of the plaint are totally false and frivolous. It is a Himaliyan lie to allege that the Plaintiff has been allotted by the Panchayat an area measuring 30 Feet x 27 Feets and its Panchayat No.288/1. Hence, the same is specifically denied. The alleged allotment and the subsequent Panchayat records referred to by the Plaintiff are false and frivolous besides being made behind the back of these defendants. Infact the Plot No.288 totally has all along been belonging to the defendants family standing in the name of Chaman bi W/o Rajasab Bagali. It appears the scheming Plaintiff in connivance of the revenue Panchayat Officials with a malafide intention of usurping the open space which part and parcel of Plot No.288 has concocted the documents referred to in para under reply. The boundaries

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RSA No. 5258 of 2008

shown in the alleged allotment order (Quibala) and in plaint schedule are totally false. These defendants have produced the hand sketch map showing the house of plaintiff, defendants and the open space along with their Counter to I.A.No.I which may please be treated as part and parcel of this written statement. Therein house of the defendants is shown as A.B.C.D. and the open space which forms part of the defendants' property is shown as C.B.H.I. However, under the colour of wrong boundaries shown in alleged Quibala the cantankerous plaintiff is trying to bolster his false claim on the open space shown as C.B.H.I. which is all along been in possession of these defendants as part and parcel of their plot No.288 as stated supra. Infact as Plot No.288 all along been a private property the Tahasildar could not have allotted the same and that the even otherwise the alleged Quibala can never confer any right to the Plaintiff. Other documents mentioned in para under reply also the outcome of collusion between the plaintiff and panchayat officials. Hence, all the allegations made in para under reply are denied."

16. Thus from a bare perusal of the said content at

paragraph 2 of the written statement, it is clear that the

defendant has not only denied the claim of the plaintiff

over the suit property, of he having acquired the same as

per Ex.P2, defendant has also set up title in respect of suit

property in himself and also claims to be in possession of

the same. That apart, existence of bathroom over the

portion of suit property constructed by the defendant and

being used by him is admitted by the plaintiff, though

learned counsel for the plaintiff has contended that the

said bathroom and the foundation is constructed within the

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RSA No. 5258 of 2008

property belonging to defendant falling in 10' area.

However, no material in this regard is produced.

17. The First Appellate Court at paragraph 9, page

Nos.9 and 10 of the impugned judgment and order,

referring to the deposition of the plaintiff, has held that

the plaintiff is not in possession of the suit property. At

paragraph 12, while dealing with the claim of the plaintiff

regarding title over the suit property, has come to the

conclusion that the evidence is not sufficient. Taking into

consideration all these aspects of the matter, the First

Appellate Court allowed the appeal and dismissed the suit.

18. There is yet another aspect of the matter to be

seen as held by the Apex Court in the case of Anathula

Sudhakar Vs. P.Buchi Reddy reported in AIR 2008 SC

2033, wherein the Apex Court has held that a suit for

bare injunction is not maintainable when the title of the

plaintiff is disputed. At paragraph 17 of the said judgment

of the Apex Court has held as under:

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RSA No. 5258 of 2008

"17. To summarize, the position in re- gard to suits for prohibitory injunction re- 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 with- out a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of pos- session, 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 sub- stantially 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 pos- session.

(c) But a finding on title cannot be re- corded in a suit for injunction, unless there are necessary pleadings and appropriate is- sue 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 is- sue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question

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RSA No. 5258 of 2008

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."

19. In the case of T.V.Ramakrishna Reddy Vs.

M.Mallappa, AIR Online 2021 SC 698, the Apex Court

at paragraphs 10, 11, 15 & 20 has held as under:

'10. It could thus be seen that this Court in unequivocal terms has held that where the plaintiff's title is not in dispute or under a cloud, a suit for injunction could be decided with reference to the finding on possession. It has been clearly held that 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.

11. No doubt, this Court has held that 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. However, it has been held that such cases are the exception to the normal rule that question of title will not be decided in suits of injunction.

12.xxx

13.xxx

14.xxx

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RSA No. 5258 of 2008

15. It could thus clearly be seen that this is not a case where the plaintiff/appellant can be said to have a clear title over the property or that there is no cloud on plaintiff/appellant's title over the suit property. The question involved is one which requires adjudication after the evidence is led and questions of fact and law are decided.

16.xxx

17.xxx

18.xxx

19.xxx

20. It will also be relevant to refer to the following observations of this Court in the case of Jharkhand State Housing Board v.Didar Singh and another2:

"11.It is well settled by catena of judgments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction."

20. In the instant case, reading of paragraph 2 of

the written statement as extracted hereinabove, leads no

doubt that the defendant apart from denying the title of

the plaintiff has also set up the title and possession of the

suit property in himself giving rise to serious cloud over

the title of the plaintiff which the Trial Court has lost sight

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RSA No. 5258 of 2008

of. Though the suit of the plaintiff is dismissed by the First

Appellate Court for requirement of proof of evidence with

regard to the possession, the aforesaid legal aspect of the

matter, cannot be lost sight of.