Karnataka High Court
Sri Munikrishanappa vs Sri Sadanandan on 22 June, 2023
Bench: Jyoti Mulimani
-1-
NC: 2023:KHC:21703
RSA No. 969 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JUNE, 2023
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
REGULAR SECOND APPEAL NO. 969 OF 2021 (INJ)
BETWEEN:
SRI. MUNIKRISHANAPPA
S/O LATE CHANNARAYAPPA,
AGED ABOUT 56 YEARS,
R/O ANGAREKANAHALLI VILLAGE,
KASABA HOBLI,
CHIKKABALLAPURA TALUK,
CHIKKABALLAPURA DISTRICT - 562 101.
...APPELLANT
(BY SRI.PURUSHOTHAM G., ADVOCATE FOR
SRI.RAMESH.M.N., ADVOCATE)
AND:
SRI. SADANANDAN
Digitally signed by
THEJASKUMAR N S/O LATE RAMACHANDRAM,
Location: HIGH AGED ABOUT 68 YEARS,
COURT OF
KARNATAKA R/AT 276, SRI. RAGHAVENDRA RESIDENCY,
1ST CROSS, 7TH MAIN,
MICO LAYOUT, BTM 2ND STAGE,
BENGALURU - 562 101.
...RESPONDENT
(BY SRI. RANGARAMU.V., ADVOCATE)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CPC., SEEKING CERTAIN RELEIFS.
THIS APPEAL IS COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
-2-
NC: 2023:KHC:21703
RSA No. 969 of 2021
JUDGMENT
Sri.Purushotham., learned counsel on behalf of
Sri.Ramesha. M.N., for the appellant and Sri.Rangaramu.V.,
learned counsel for the respondent have appeared in person.
2. This is an appeal from the Court of I Addl. Senior
Civil Judge and JMFC, Chikkaballapura.
3. For the sake of convenience, the status of the
parties shall be referred to as per their ranking before the Trial
Court.
4. The brief facts are these.
It is said that land-bearing Sy.No.36 situated at
Balajigapade Village, Nandi Hobli, Chikkaballapur Taluk is 421
Acres and 39 Guntas originally belonged to Government. It is
the case of the plaintiff that he was in unauthorized cultivation
of the suit schedule property to an extent of 01 Acre 20 guntas
in the said survey number. It is said that considering the long-
standing possession of the plaintiff over the said property, the
Government granted land to an extent of 01 Acre 20 Guntas in
his name and issued Saguvali Chit on 12.08.2004 by imposing
NC: 2023:KHC:21703
RSA No. 969 of 2021
a non-alienation condition for a period of 15 years. After the
grant, the Katha & mutation was accepted by the authorities
concerned in his name in M.R.No.62/2008-09 and all the
revenue documents are standing in his name. He is growing
regular crops over the suit schedule property. The defendant
has no manner of right, title, or interest over the suit schedule
property, and tried to dig trenches over the suit schedule
property. Plaintiff resisted the illegal acts of the defendant, but
in vain. Hence, the plaintiff - initiated action against the
defendant for the relief of a permanent injunction.
After the service of the suit summons, the defendant
appeared through his counsel and filed a detailed written
statement denying the averments made in the plaint. He
contended that he is Ex-serviceman, and he gave his noble
service to our Nation. Considering his service, the Government
has allotted 04 Acres of land in Sy.No.36, New Sy.No.50
situated at Balajigapade Village, Chickballapur Taluk, and
issued Saguvali Chit on 21.07.1973. In pursuance of the grant,
a mutation was also certified in his name. Since the date of the
grant, he is in peaceful possession and enjoyment of the same
and he applied for a survey of the land on 25.03.2015. The
NC: 2023:KHC:21703
RSA No. 969 of 2021
concerned Survey department made the survey, but the
neighboring owners refused to sign the said survey papers. He
denied his interference with the plaintiff's property. Among
other grounds, he prayed for the dismissal of the suit.
5. Based on the above pleadings, the Trial Court
framed issues. To substantiate their contention, respective
parties led in their evidence, and documents were marked. The
Trial Court passed a decree in the plaintiff's favor. On appeal,
the First Appellate Court allowed the appeal and set aside the
Judgment & Decree of the Trial Court. Hence, the plaintiff has
preferred this Regular Second Appeal under Section 100 of
CPC.
6. Sri.Purushotham., learned counsel for the appellant
submits that the Judgment & Decree of the First Appellate
Court is illegal and contrary to the facts of the case and hence
the same is liable to be set aside.
Next, he submits that the First Appellate Court did not
appreciate the evidence on record led by the parties in respect
to suit schedule property, there is no dispute in respect of title.
Since the plaintiff relied on his title by virtue of the Saguvali
NC: 2023:KHC:21703
RSA No. 969 of 2021
chit issued by the Tahsildar, Chikkaballapura in regard to the
land in question and the same in the case of the defendant.
A further submission is made that the First Appellate
Court has given more preference to the oral evidence of the
parties than documentary evidence produced by the parties
before the Trial Court.
Learned counsel Sri.Purushotham., vehemently
contended that the First Appellate Court has failed to notice the
cross-examination of DW1 that he has categorically admitted
having the knowledge and notice of the issuance of a letter by
the Tahsildar of Chikkaballapura about the regularization of
unauthorized cultivation of Government land including the suit
schedule property. Learned counsel also contended that the
First Appellate Court has failed to notice and appreciate the
document produced by the plaintiff which shows that the
Government after making the due inquiry and following the
procedure as contemplated under 94-A of the Karnataka Land
Revenue Act, 1964 has supplied the documents. The mere
denial of the title of the plaintiff in respect of suit schedule
property shall not be a cloud on the title of the plaintiff.
NC: 2023:KHC:21703
RSA No. 969 of 2021
Lastly, he submits that viewed from any angle, the
Judgment & Decree of the First Appellate Court is erroneous in
law and lacks judicial reasoning. Hence, the appeal may be
allowed.
Learned counsel for the appellant placed reliance on the
following Judgment:
ANATHULA SUDHAKAR VS. P. BUCHI
REDDY (DEAD) BY L.RS. AND OTHERS - AIR
2008 SC 2033.
7. Per-contra Sri.Rangaramu.V., learned counsel for
the respondent justified the Judgment & Decree of the First
Appellate Court.
Next, he submits that the Authority concerned issued
notice to the adjacent owners of the defendant's land, and the
plaintiff's land was not identified, hence no notice was issued to
the plaintiff, and he was not a neighbor of the defendant.
A further submission is made that Ex.P.10 is the Official
Memorandum and there is an overwriting of the survey
number.
NC: 2023:KHC:21703
RSA No. 969 of 2021
Learned counsel vehemently contended that there is no
identification of the property of the plaintiff, and he has failed
to prove its identity. The defendant is the owner of the property
bearing No.50 which is carved out of Sy.No.36. The plaintiff is
falsely claiming that towards East of Sy.No.50, he owns 01 Acre
and 20 Guntas of land in Sy.No.36 in Block No.1 but in Ex.P.11
there is no mention about the Block number. Learned Counsel
further submits that towards the east of the property of the
defendant, there is a road.
Lastly, he submitted that the First Appellate Court has
appreciated the material evidence on record. Accordingly, he
submitted that the Regular Second Appeal may be dismissed.
Learned counsel for the respondent placed reliance on the
following decisions:
1. M/S. PATIL EXHIBITORS (P) LTD. VS.
CORPORATION OF THE CITY OF BANGALORE -
ILR 1985 KAR 3700.
2. RAME GOWDA (D) BY LRS. VS. M. VARADAPPA
NAIDU (D) BY LRS. AND ANOTHER - ILR 2006
KAR 1047.
NC: 2023:KHC:21703
RSA No. 969 of 2021
3. P. CHANDRASEKHARAN AND OTHERS VS. S.
KANAKARAJAN AND OTHERS - (2007) 5 SCC
669.
4. SMT.SHAKUNTHALAMMA AND OTHERS VS.
SMT.KANTHAMMA AND OTHERS - ILR 2014 KAR
6025.
8. Heard, the contentions urged on behalf of the
respective parties and perused the records with utmost care.
9. The facts are sufficiently said and the same does
not require reiteration. The suit giving rise to this appeal was
brought by the plaintiff for the relief of a permanent injunction.
An injunction is a judicial process whereby a party is
ordered to refrain from doing or to do a particular act or a
thing. In the former case, it is called a restrictive injunction,
and in the latter, a mandatory injunction. It is a remedy of an
equitable nature and since equity acts in personam an
injunction affecting land does not run with the land.
A perpetual injunction is based on a final determination of
the rights of the parties and is intended permanently to prevent
NC: 2023:KHC:21703
RSA No. 969 of 2021
infringement of those rights and obviate the necessity of
bringing action after action in respect of every such
infringement.
As could be seen from the nature of lis between the
parties, the suit is one for a bare injunction. The right to an
injunction is based on a prima-facie right. In a suit for bare
injunction, the plaintiff is liable to prove their lawful possession
and enjoyment of the suit schedule property as on the date of
filing of the suit.
The object of injunction is prevention, and the aim is to
maintain status-quo ante. The plaintiff claiming the relief of
perpetual injunction must prove the breach of an obligation or
infringement of a legal right. A perpetual injunction is
maintained only after the plaintiff has established his right and
the actual infringement of it by the defendant.
Reverting to the facts of the case, the plaintiff specifically
contended that he is in possession and enjoyment of the suit
schedule property to an extent of 01 Acre 20 Guntas. To
substantiate the said contention, the plaintiff has produced
certain documents. Ex.P.10 is the Official Memorandum dated
- 10 -
NC: 2023:KHC:21703
RSA No. 969 of 2021
12.07.2004 and Ex.P.1 is the Saguvali Chit issued in August
2004 and Ex.P.11 is the sketch.
Learned counsel Sri.Purushotham., in presenting his
argument, drew the attention of the Court to the above-
mentioned documents to contend that the suit schedule
property forms part of Sy.No.36 in Block No.1 measuring to an
extent of 01 Acre 20 Guntas and the same is situated towards
the eastern side of the property of the defendant.
In reply, learned counsel Sri.Rangaramu.V., contended
that there is an over-writing in mentioning the survey number
in the Official Memorandum Ex.P.10. He also argued by saying
that in the survey sketch at Ex.P.11, there is no mention of the
block number as contended by the plaintiff.
A good deal of argument is addressed about non-
identification and boundaries of the property of the plaintiff.
The factual matrix manifest from the case papers reveals
that the defendant is an Ex-serviceman. Taking note of his
service, the Government granted the land to an extent of 04
Acres in Sy.No.36, New No.50 situated at Balajigapade Village,
Chikkaballapura Taluk.
- 11 -
NC: 2023:KHC:21703
RSA No. 969 of 2021
Suffice it to note that the plaintiff based his claim on the
Official Memorandum, Saguvali chit and the Sketch to prove the
possession. The grant made in favor of the defendant is in the
year 1973 i.e., much earlier than the alleged grant in favor of
the plaintiff.
A perusal of Ex.P.11 Survey sketch reveals mentioning of
certain survey numbers viz., 37, 38, 40, 45, 46, 47, 48, 49, 50,
and 51. But there is no mention of Sy.No.36 and Block
numbers. There is a road towards the Eastern side of Sy.No.50
and there is no land. In the plaint schedule, the boundary
towards the eastern side is shown as a road.
An attempt is made on behalf of the defendant to contend
that there is an overwriting in Ex.P.10. A perusal of the same
depicts that there is no clear mention of Survey No.36 and
there is overwriting. It is relevant to note that in the cross-
examination, the plaintiff admits to overwriting. A perusal of
the documents would depict that there is no identification of the
land to an extent of 01 Acre 20 Guntas in Sy.No.36 to grant an
injunction in favor of the plaintiff. Furthermore, the evidence on
- 12 -
NC: 2023:KHC:21703
RSA No. 969 of 2021
record nowhere comes near establishing any of the allegations
made against the defendant.
Irrespective of whether the injunction sought is
temporary or perpetual, the jurisdiction to grant an injunction
is discretionary. As already noted above, in a suit for bare
injunction, what must be proved is the lawful possession and
enjoyment of the suit property as of the date of filing of the
suit. I am quite clear that there is no identification of the
property, and the plaintiff has failed to prove the identity of the
property. In the absence of the identification of the property
and its boundary, the plaintiff is not entitled to the grant of a
perpetual injunction. I should mention one further
consideration which appears to me to be of possible significance
in a suit for bare injunction, the question of title cannot be gone
into. Hence, there is no need to discuss about the title. The
Appellate Judge re-appraised the evidence on record from a
right perspective. I find no infirmity in the finding of fact
recorded by the Appellate Judge about possession, and I
decline to interfere with the same.
- 13 -
NC: 2023:KHC:21703
RSA No. 969 of 2021
It is tempting to say that an injunction is a judicial
remedy by which a person is ordered to restrain from doing or
to do a particular thing. It is a preventive relief and is granted
at the discretion of the Court, but the discretion must be
exercised by well-known principles. In the present case, the
Appellate Court has exercised its discretion properly in rejecting
the relief of injunction. The exercise of discretion is reasonable.
The substantial question of law framed by this Court is
answered accordingly.
Learned counsel for the respective parties placed reliance
on several decisions, but I do not think that the law is in doubt.
Each decision turns on its facts. The present case is also tested
in light of the aforesaid decisions.
10. Resultantly, the Regular Second Appeal is
dismissed.
Sd/-
JUDGE
TKN
