Karnataka High Court
Sri Kantharaju vs Yogesh on 5 November, 2024
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RFA No.1887/2010
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
REGULAR FIRST APPEAL NO.1887 OF 2010 (INJ)
BETWEEN:
SRI. KANTHARAJU
S/O APPAJI
AGED ABOUT 41 YEARS
R/AT.NO.43, MOODALAPALYA
NAGARABHAVI MAIN ROAD
BANGALORE 560 072.
...APPELLANT
(BY SRI. J.M. RAJANNA SETTY, ADV.,)
Digitally signed
by RUPA V AND:
Location: HIGH
COURT OF
KARNATAKA 1. YOGESH
S/O NARASAIAH
AGED ABOUT 39 YEARS
R/AT. NO.299, IST MAIN ROAD
2ND CROSS, PANCHASEELANAGAR
MOODALAPALYA, BANGALORE 560 072.
2. NANJUNDE GOWDA
AGED ABOUT 52 YEARS
R/AT. NO.144, 4TH CROS
2ND MAIN ROAD
ULEPADI VENKATARAMANA ROAD
SHANTHAVERI GOPALA GOWDA NAGAR
MOODALAPALYA, BANGALORE 560 072.
...RESPONDENTS
(BY SRI. N.R. JAGADEESWARA, ADV., FOR C/R2
R1 SERVED)
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RFA No.1887/2010
THIS R.F.A. IS FILED U/S 96 OF CPC, PRAYING TO SET
ASIDE THE JUDGMENT AND DECREE PASSED IN
O.S.NO.6518/2006, DATED 08.10.2010, ON THE FILE OF THE
XXIV ADDITIONAL CITY CIVIL JUDGE AT BANGALORE, BY
ALLOWING THIS APPEAL AND DECREEING THE SUIT WITH
COSTS, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS R.F.A. HAVING BEEN HEARD AND RESERVED ON
29.10.2024, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
CAV JUDGMENT
This appeal is filed under Section 96 of the Code of Civil
Procedure challenging the judgment and decree passed in
O.S.No.6518/2006 dated 08.10.2010 by the XXIV Additional
City Civil & Sessions Judge, Bengaluru City (CCH No.6),
wherein the appellant's suit for permanent injunction was
dismissed with costs.
2. For the purpose of convenience, the parties are
referred to as per their ranking before the trial Court. The
appellant was the plaintiff and respondents were the
defendants before the trial Court.
3.(a) The case of the plaintiff is that land bearing
Sy.No.52, measuring 2 acre of Malagalu Village,
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Yeshwanthapura Hobli, Bengaluru North Taluk, came to be
purchased by one G. Kempaiah and his brothers under the
registered sale deed dated 14.01.1959 and pursuant to the sale
deed, the name of G. Kempaiah came to be entered in the
revenue records. It is averred that the sons of Sri. G. Kempaiah
i.e. Krishnamurthy and D. Narayana have formed the private
layout and sold the sites in favour of the different persons. It is
further averred that the children of G. Kempaiah sold site No.67
in favour of Smt. Gangamma by executing General Power of
Attorney and also an affidavit by putting her in possession of
the property and the said Gangamma offered to sell half site
and the plaintiff agreed to purchase the same for valuable
consideration and accordingly purchased. It is also averred that
the plaintiff has applied for katha in the Bruhat Bengaluru
Mahanagara Palike (for short 'BBMP') and thereafter, the
plaintiff has demolished a shed which existed in the suit
schedule property as he intend to put up the construction.
3.(b) It is also averred that on 09.07.2006, the
defendants came near the property and attempted to trespass
into the same along with their henchmen and they have
threatened the plaintiff saying that they are the local leaders
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and they will not allow the plaintiff to put up the construction.
The plaintiff has also sought the police help, however, the
police did not offer any protection, advised to approach civil
Court as the matter pertains to civil dispute.
3.(c) It is pleaded that on verification it is found that
defendant No.1 is having large henchmen of anti social element
at his back and also support of local corporator of BBMP.
Defendant No.2 is an Assistant Executive Engineer in BBMP,
who is also hand in glove with the first defendant interfering
with the possession of the plaintiff and stopped the
construction. The act of the defendants is highly illegal,
arbitrary and high handed. Hence, prayed for judgment and
decree against the defendants restraining them, their agents,
servants, anybody under them from interfering with the
peaceful possession and enjoyment of the suit schedule
property of the plaintiff.
4.(a) Defendant No.1 entered appearance before the trial
Court, he did not file written statement. Defendant No.2 filed
the written statement. It is averred that the defendant No.2
has no personal interest in the suit schedule property or any
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portion of it and he being an official, working as an Assistant
Executive Engineer has discharged his duties as per law, no suit
lies against him in individual capacity and before initiating the
proceedings the plaintiff ought to have issued statutory notice
as provided under Section 482 of the Karnataka Municipal
Corporations Act, 1976 (for short 'the Act').
4.(b) The defendant No.2 denied the allegation of the
plaintiff that one G. Kempaiah has purchased 2 acres of land in
Sy.No.52 of Malagalu Village and alleged that the RTC and
other documents are created and concocted by the plaintiff. It
is averred that land in Sy.No.52 is totally measuring 34 acres
33 guntas of Malagalu Village which is gomala land. As per the
revenue records and the RTC discloses that Janatha sites are
formed and allotted to the public and about 600 sites are
formed in the said survey number. Further, the BBMP has
constructed school building and Government is running Higher
Primary School and one of the philanthropist has constructed a
hospital and donated the same to the BBMP. It is further
averred that in a portion of 5 acres on the eastern and northern
side some unauthorized construction have come up.
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4.(c) It is pleaded that the RTC for the subject land does
not show the name of any individual. Defendant No.2, who is
an Assistant Executive Engineer in Govindarajanagar sub
division of BBMP, after noticing the excavation in the schedule
property by the plaintiff on 09.07.2006, visited the spot and
enquired with the plaintiff and requested to show the sanction
plan and license permitting him to put up construction of the
building. The plaintiff failed to furnish the sanction plan and
license but only shown the sale deed copy. As such, the
defendant exercising the power under the law has asked the
plaintiff to stop illegal construction and he has taken that action
after receiving the instruction from the Control Room of BBMP.
The defendant No.2 being the Assistant Executive Engineer has
exercised the power and duties as per the provisions of the Act
and he is having protection under the Act and no proceedings
can be initiated against him under individual capacity. Hence,
he sought for dismissal of the suit.
5. The trial Court based on the pleading framed the
following issues:
"1. Is plaintiff the owner of plaint schedule
property?
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2. Was plaintiff in lawful possession of suit
property on the date of suit?
3. Is alleged interference true?
4. Is the suit properly valued and court fee
paid is sufficient?
5. What decree or order?"
6. Issue Nos.1 and 4 are deleted as per para No.6 of
the judgment. The trial Court recorded the evidence. The
Plaintiff examined himself as PW1 and got marked Exs.P1 to
P4. Defendant No.2 examined himself as DW1 and got marked
Ex.D1. The trial Court on appreciation of the pleading and
evidence on record, has recorded the finding that the
Government has carved out the sites in Sy.No.52 and
distributed to the poor people and the documents produced by
the plaintiff does not indicate that suit plot is in Sy.No.52 and
even the plaint schedule does not mention the said survey
number and having clear admission of PW1 with regard to the
development of surrounding lands, the trial Court recorded the
finding that the plaintiff has failed to prove that he is in
possession of schedule property and his possession is lawful. It
has recorded the further finding that defendant No.2 in
discharge of his official duty to protect the Government land
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has stopped the illegal construction and proceeded to dismiss
the suit.
7. I have heard Sri. J .M. Rajanna Shetty, learned
counsel for the appellant and Sri. N.R. Jagadeeswara, learned
counsel for respondent No.2.
8. Sri. J.M. Rajanna Shetty, learned counsel for the
appellant submits that the trial Court has committed an error in
dismissing the suit of the plaintiff, even though defendant No.2
has admitted that he has no interest in the property that
admission itself is sufficient to decree the suit. It is submitted
that the trial Court has committed further error in placing
reliance on Ex.D1-RTC which does not reflect correct state of
affairs of the suit schedule property. The trial Court recorded
the finding that the entire property is the Government property
which is contrary to the evidence on record. The trial Court has
failed to consider the pleading of the plaintiff with regard to the
lawful acquisition of title by D.Narayan S/o G. Kempaiah, who
is the vendor of the plaintiff and also ignored the registered
sale deed of the plaintiff. It is further submitted that defendant
No.2 has no authority to interfere with the possession and
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enjoyment of the suit schedule property by the plaintiff as he
has admitted in the pleading as well as evidence with regard to
the title and possession. Hence, he seeks to allow the appeal by
granting permanent injunction against the defendants.
9. Sri. N.R. Jagadeeswara, learned counsel appearing
for defendant No.2 submits that defendant No.2 denied the title
of the plaintiff over the suit schedule property. Hence, a suit for
bare injunction is not maintainable. It is submitted that the
weakness of the defendant cannot be a ground to decree the
suit of the plaintiff. It is further submitted that the defendant
has not produced the title documents, RTC, katha, tax paid
receipt of his vendor Sri. G. Kempaiah. Hence, the vendor
himself was not having any title to the suit schedule property
hence, question of the plaintiff claiming title would not arise. It
is also submitted that the sale deed at Ex.P1 do not indicate the
Sy.No.52 and where exactly the site No.67 is situated in the
said survey number is not known. The identification of the
property is in dispute. It is contended that defendant No.2
being the jurisdictional engineer, at the relevant time in
discharge of his duties under law stopped the illegal
construction of the plaintiff over the suit schedule property
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which has been rightly considered by the trial Court and
dismissed the suit. He seeks to dismiss the appeal.
10. I have heard the arguments of the learned counsel
for the appellant, learned counsel for the respondent and
meticulously perused and considered the trial Court records.
The question arises for consideration in this appeal is;
"Whether the impugned judgment and decree suffers
from perversity and calls for interference in this appeal?"
11. The plaintiff has filed suit for permanent injunction
seeking prayer to restrain the defendants from interfering from
peaceful possession and enjoyment of the suit schedule
property of the plaintiff. The suit schedule property shown in
the plaint is property bearing assessment No.52 of katha No.52
bearing site No.67 towards the western side of the property
situated at Malagalu Village, Yeshwanthapura Hobli, Bengaluru
North Taluk, now called as Moodalapalya layout measuring east
to west 40 feet and north to south 40 feet. The case of the
plaintiff is that one Sri. G. Kempaiah and his brothers under the
registered sale deed dated 14.01.1959 purchased land
measuring 2 acres in Sy.No.52 of Malagalu Village and name of
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the G. Kempaiah is effected in the RTC. The further case of the
plaintiff that the sons of G. Kempaiah formed the private layout
and they have executed General Power of Attorney in favour of
Smt. Gangamma insofar as site No.67 and later the sons of
Kempaiah executed the sale deed in respect of half site and the
said Gangamma has affixed her signature as consenting
witness to the sale deed at Ex.P1. The plaintiff has produced
encumbrance certificate as Ex.P2 which indicate the transaction
referred in Ex.P1. The plaintiff has pleaded that when the
plaintiff was intend to put up construction in his site by
demolishing the existing shed, defendant No.2 on 09.07.2006,
interfered with the plaintiff's possession of the suit schedule
property and stopped him illegally from putting up the
construction. In order to prove the plea of title and lawful
possession, the plaintiff examined himself as PW1. The
examination in chief of PW1 is nothing but reiteration of plaint
averments. PW1 has been cross examined by defendant No.2
at length. PW1 has admitted in cross examination that the suit
schedule site is carved out of Sy.No.52 of Malagalu Village. He
was confronted with RTC of Sy.No.52 which is marked as Ex.D1
and he has admitted that in RTC for Sy.No.52 of Malagalu
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Village, the nature of land is shown as Government gomala and
he further admits that in the said land Janatha sites were
formed for the purpose of distribution for poor people. He also
admits that in Ex.D1 it is mentioned as 34 acres 33 guntas. He
has admitted that in his sale deed at Ex.P1 it is written only as
Site No.67 and no survey number is mentioned. Further, he has
admitted that his vendor has no katha in his name pertinent to
suit schedule property at the time of selling. He also admitted
that he do not have katha in his name pertinent to suit
schedule property and the property comes within the BBMP
limits and he has not paid the tax to the said property. The
averments in the plaint, written statement of defendant No.2
and cross examination of PW1 clearly indicate that the entire
land in Sy.No.52 of Malagalu Village is Government gomala
land and the State Government has formed sites to distribute
the same for poor people. The plaintiff has not produced any
legally acceptable evidence to prove with regard to the title of
his vendor G. Kempaiah. It is not forthcoming from the
evidence on record as to how G. Kempaiah become the owner
of land measuring 2 acres in Sy.No.52 of Malagalu Village and
when he has formed the layout. Except Ex.P1 the sale deed
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dated 14.06.2006 and encumbrance certificate in Form No.15
at Ex.P2, no other documents were produced by the plaintiff to
establish his title and possession over suit schedule property.
Defendant No.2 in his written statement has seriously disputed
the title and possession of the plaintiff over the suit schedule
property. The defendant has disputed the identification and
existence of such plot only. The law is fairly settled on this
issue, when the defendant seriously disputes the title of the
plaintiff over the suit schedule property, the suit for permanent
injunction is not maintainable without seeking further prayer
for declaration. The evidence on record clearly indicates that
the defendants have seriously disputed the title of the plaintiff.
Hence, a suit for permanent injunction filed by the plaintiff in
its present form is not maintainable. If the title of the plaintiff is
under a cloud or in dispute and unable to establish his
possession over the property based on such title, necessarily
the plaintiff has to file a suit for declaration and injunction. The
said view gain support from the decision of the Hon'ble
Supreme court in the case of Jharkhand State Housing
Board vs. Didar Singh and another1 and the relevant
(2019) 17 SCC 692
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paragraph i.e., paragraph No.11, of the said decision is
extracted herein below:
"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."
12. The defendant has clearly taken the plea that the
plaintiff has no title over the suit schedule property and
according to defendant No.2 the property is Government
gomala land. In view of the said stand it appears prima facie
that the plaintiff's title is in clouds and the State Government is
the rightful owner of the suit schedule property as per Ex.D1
and the averments made in the written statement. Hence, the
plaintiff's suit for permanent injunction without seeking further
relief of declaration and possession is not maintainable. The
Hon'ble Supreme Court in the case of Anathula Sudhakar vs. P.
Buchi Reddy (Dead) by Lrs & Others2 has enunciated the law
AIR 2008 SC 2033
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on the point. The relevant paragraphs i.e., paragraph Nos.11
to 14, of the said decision is extracted herein below:
" 11. The general principles as to when a mere suit for
permanent injunction will lie, and when it is necessary to
file a suit for declaration and/or possession with
injunction as a consequential relief, are well settled. We
may refer to them briefly.
11.1. Where a plaintiff is in lawful or peaceful possession
of a property and such possession is interfered or
threatened by the defendant, a suit for an injunction
simpliciter will lie. A person has a right to protect his
possession against any person who does not prove a
better title by seeking a prohibitory injunction. But a
person in wrongful possession is not entitled to an
injunction against the rightful owner.
11.2. Where the title of the plaintiff is not disputed, but
he is not in possession, his remedy is to file a suit for
possession and seek in addition, if necessary, an
injunction. A person out of possession, cannot seek the
relief of injunction simpliciter, without claiming the relief
of possession.
11.3. Where the plaintiff is in possession, but his title to
the property is in dispute, or under a cloud, or where the
defendant asserts title thereto and there is also a threat
of dispossession from the defendant, the plaintiff will
have to sue for declaration of title and the consequential
relief of injunction. Where the title of the plaintiff is
under a cloud or in dispute and he is not in possession or
not able to establish possession, necessarily the plaintiff
will have to file a suit for declaration, possession and
injunction.
12. We may, however, clarify that a prayer for
declaration will be necessary only if the denial of title by
the defendant or challenge to the plaintiff's title raises a
cloud on the title of the plaintiff to the property. A cloud
is said to raise over a person's title, when some apparent
defect in his title to a property, or when some prima
facie right of a third party over it, is made out or shown.
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An action for declaration, is the remedy to remove the
cloud on the title to the property. On the other hand,
where the plaintiff has clear title supported by
documents, if a trespasser without any claim to title or
an interloper without any apparent title, merely denies
the plaintiff's title, it does not amount to raising a cloud
over the title of the plaintiff and it will not be necessary
for the plaintiff to sue for declaration and a suit for
injunction may be sufficient. Where the plaintiff,
believing that the defendant is only a trespasser or a
wrongful claimant without title, files a mere suit for
injunction, and in such a suit, the defendant discloses in
his defence the details of the right or title claimed by
him, which raise a serious dispute or cloud over the
plaintiff's title, then there is a need for the plaintiff, to
amend the plaint and convert the suit into one for
declaration. Alternatively, he may withdraw the suit for
bare injunction, with permission of the court to file a
comprehensive suit for declaration and injunction. He
may file the suit for declaration with consequential relief,
even after the suit for injunction is dismissed, where the
suit raised only the issue of possession and not any issue
of title.
13. In a suit for permanent injunction to restrain the
defendant from interfering with the plaintiff's possession,
the plaintiff will have to establish that as on the date of
the suit he was in lawful possession of the suit property
and the defendant tried to interfere or disturb such lawful
possession. Where the property is a building or building
with appurtenant land, there may not be much difficulty
in establishing possession. The plaintiff may prove
physical or lawful possession, either of himself or by him
through his family members or agents or
lessees/licensees. Even in respect of a land without
structures, as for example an agricultural land,
possession may be established with reference to the
actual use and cultivation. The question of title is not in
issue in such a suit, though it may arise incidentally or
collaterally.
14. But what if the property is a vacant site, which is not
physically possessed, used or enjoyed? In such cases the
principle is that possession follows title. If two persons
claim to be in possession of a vacant site, one who is
able to establish title thereto will be considered to be in
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possession, as against the person who is not able to
establish title. This means that even though a suit
relating to a vacant site is for a mere injunction and the
issue is one of possession, it will be necessary to
examine and determine the title as a prelude for deciding
the de jure possession. In such a situation, where the
title is clear and simple, the court may venture a decision
on the issue of title, so as to decide the question of de
jure possession even though the suit is for a mere
injunction. But where the issue of title involves
complicated or complex questions of fact and law, or
where court feels that parties had not proceeded on the
basis that title was at issue, the court should not decide
the issue of title in a suit for injunction. The proper
course is to relegate the plaintiff to the remedy of a full-
fledged suit for declaration and consequential reliefs.."
[emphasis supplied]
13. The plaintiff contended that he has acquired valid
title from his vendor however, in the cross examination he has
admitted that he has not produced any document of title of his
vendor. Ex.D1, the RTC of Sy.No.52 of Malagalu Village clearly
indicates that the entire land is a Government gomala and the
plaintiff claims that site No.67 is carved out from Sy.No.52. The
document at Ex.D1 is confronted with the plaintiff, wherein he
has admitted that the Government has carved out the sites to
distribute the same to the poor. The admission of the plaintiff in
cross examination clearly demolishes his claim of lawful
ownership and possession over the suit schedule property.
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Hence, the plaintiff is failed to prove that the plaintiff is lawful
owner of the suit schedule property.
14. This Court having held that the plaintiff has failed to
prove prima facie the lawful owner of the suit schedule
property, the question of his lawful possession over the suit
schedule property would not arise. In order to consider the
plaintiff's prayer to grant permanent injunction against the
defendants, the plaintiff needs to prove that he is in lawful
possession of the suit schedule property. The plaintiff in his
cross examination has clearly admitted that his site is carved
out from Sy.No.52 which is a Government gomala land and no
survey number is mentioned in Ex.P1 and he has not produced
the title or revenue documents of his vendor and in the
absence of cogent and legally acceptable evidence available on
record with regard to the lawful possession of the plaintiff over
the suit schedule property, no relief of permanent injunction
can be granted in his favour. In a suit for injunction simpliciter
is concerned only with possession, normally, the issue of title
will not be directly and substantially an issue. The prayer for
injunction will be decided with reference to the finding on
possession. But in case where 'de jure possesion' has to be
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established on the basis of title to 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. Further,
defendant No.2 has clearly taken a stand in his written
statement that he has no personal interest over the suit
schedule property and he being the jurisdictional engineer of
BBMP is discharging the statutory duty. Admittedly, the plaintiff
has not produced the sanction plan or the license to put up the
construction in the suit schedule property nor produced katha
or the tax paid receipt, to come to conclusion that the plaintiff
is in lawful possession of the suit schedule property. The
discharge of lawful duty by defendant No.2 cannot be stopped
by issuing the order of permanent injunction. Therefore,
permanent injunction cannot be granted against a statutory
authority preventing that authority from discharging its
statutory functions.
15. The trial Court on appreciation of the pleading and
evidence on record has recorded the finding that the plaintiff
has failed to prove that he is in peaceful possession of the suit
schedule property and his possession is lawful and dismissed
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the suit. This court do not find any error or perversity in the
finding recorded by the trial Court calling for interference in the
present appeal.
16. For the aforementioned reasons, I proceed to pass
the following;
ORDER
i) The appeal is devoid of merits. Accordingly, rejected.
ii) No orders to costs.
Sd/-
(VIJAYKUMAR A. PATIL)
JUDGE
ABK
