Karnataka High Court

Sri K. Puttaswamy vs Smt. Sudha on 12 November, 2024

Author: S.G.Pandit

Bench: S.G.Pandit

                                              -1-
                                                      NC: 2024:KHC:45783-DB
                                                       RFA No. 1222 of 2010
                                                     C/W RFA No. 63 of 2012



                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 12TH DAY OF NOVEMBER, 2024

                                           PRESENT
                              THE HON'BLE MR JUSTICE S.G.PANDIT
                                              AND
                        THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
                    REGULAR FIRST APPEAL NO. 1222 OF 2010 (PAR/INJ)
                                         C/W
                     REGULAR FIRST APPEAL NO. 63 OF 2012 (DEC/INJ)

                   IN RFA No. 1222/2010

                   BETWEEN:

                   1.    SRI K. PUTTASWAMY
                         S/O LATE KALACHARI
                         AGED ABOUT 73 YEARS
                         R/AT NO 6-A, 3RD CROSS
                         BAPUJINAGARA
                         MYSORE ROAD
                         BENGALURU - 26
                         SINCE DEAD, BY HIS LRS
Digitally signed
by                 a.    SMT SUSHEELAMMA
MARIGANGAIAH             W/O LATE K. PUTTASWAMY
PREMAKUMARI
Location: HIGH
                         AGED ABOUT 67 YEARS
COURT OF                 R/AT NO 6/A, 2ND MAIN
KARNATAKA                3RD CROSS, GROUND FLOOR
                         BAPUJI NAGAR
                         MYSORE ROAD
                         BENGALURU - 26
                         SINCE DEAD, BY HER LRS

                   b.    SMT B.P YAMUNA
                         D/O LATE K PUTTASWAMY
                         W/O NARASIMHACAHAR
                         AGED ABOUT 47 YEARS
                         RESIDING AT NO 89/A
                            -2-
                                     NC: 2024:KHC:45783-DB
                                      RFA No. 1222 of 2010
                                    C/W RFA No. 63 of 2012



     4TH MAIN, 7TH CROSS
     BAPUJINAGAR
     MYSORE ROAD
     BENGALURU - 26
c.   SRI B P PUSHPALATHA
     D/O LATE K PUTTASWAMY
     W/O RUDRESH
     AGED ABOUT 45 YEARS
     RESIDING AT NO 6/A
     2ND MAIN, 3RD CROSS
     1ST FLOOR, BAPUJI NAGAR
     MYSORE ROAD
     BENGALURU- 26

d.   SMT B.P DANALAKASHMI
     D/O LATE K PUTTASWAMY
     W/O MAHESH
     AGED ABOUT 40 YEARS
     R/AT AT BYRAVESHWARANAGAR
     JALAHALLI
     BENGALURU

e.   SMT B P NANDINI @ LEELAVATHI
     D/O LATE K PUTTASWAMY
     W/O LAKSHMIKANTH
     AGED ABOUT 38 YEARS
     R/AT NO 6/A, 2ND MAIN
     3RD CROSS, GROUND FLOOR
     BAPUJI NAGAR
     MYSORE ROAD
     BENGALURU - 26

f.   SRI B P MOHAN KUMAR
     S/O LATE K PUTTASWAMY
     AGED ABOUT 35 YEARS
     RESIDING AT NO 6/A
     2ND MAIN, 3RD CROSS
     GROUND FLOOR,
     BAPUJI NAGAR
     MYSORE ROAD
     BENGALURU -26
                               -3-
                                     NC: 2024:KHC:45783-DB
                                      RFA No. 1222 of 2010
                                    C/W RFA No. 63 of 2012



     REPTD. BY THEIR PA HOLDER
     C NARAYANASWAMY
     S/O CHINNAIAH
     AGED ABOUT 34 YEARS
     R/AT NO 11
     OPPOSITE TO KAVIKA
     BYATARAYANAPURA
     MYSORE ROAD
     BENGALURU- 26
                                              ...APPELLANTS
(BY SRI. B M LOKESH.,ADVOCATE FOR A-1;
    SRI.P.B.AJITH., ADVOCATE FOR A(1b-1f))

AND:

1.   SMT. SUDHA
     W/O H T DWARAKANATH
     AGED ABOUT 46 YEARS
     R/AT NO. 32, 11THCROSS
     BAPUJINAGAR
     BENGALURU - 26

2.   SRI RAMESH
     S/O LATE K PUTTASWAMY
     AGED ABOUT 37 YEARS
     R/AT NO 6/A, 2ND MAIN
     3RD CROSS, FIRST FLOOR
     BAPUJI NAGAR
     MYSORE ROAD
     BENGALURU - 26
     (LR (g) MADE AS RESPONDENT NO 2
      AS HE IS NOT WITH OTHER LR)
                                             ...RESPONDENTS
(BY SRI. Y K NARAYANA SHARMA., &
 SRI Y.V.PRAKASH., ADVOCATES FOR C/R-1;
  NOTICE SERVED TO R-2 & UNREPRESENTED)

     THIS RFA IS FILED U/S 96, OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED01.06.2010 PASSED IN
O.S.5785/1995 C/W 9742/2006 ON THE FILE OF THE XXIV
ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE,
DISMISSING THE SUIT FOR PERMANENT INJUNCTION.
                             -4-
                                   NC: 2024:KHC:45783-DB
                                    RFA No. 1222 of 2010
                                  C/W RFA No. 63 of 2012




IN RFA NO. 63/2012
BETWEEN:
1. SRI K. PUTTASWAMY
   S/O LATE KALACHARI
   AGED ABOUT 73 YEARS
   R/AT NO 6-A, 3RD CROSS
   BAPUJINAGARA
   MYSORE ROAD
   BENGALURU - 26
   SINCE DEAD, BY HIS LRS

a.   SMT SUSHEELAMMA
     W/O LATE K. PUTTASWAMY
     AGED ABOUT 67 YEARS
     R/AT NO 6/A, 2ND MAIN
     3RD CROSS, GROUND FLOOR
     BAPUJI NAGAR
     MYSOREROAD
     BENGALURU - 26
     SINCE DEAD, BY HER LRS
b.   SMT B.P YAMUNA
     D/O LATE K PUTTASWAMY
     W/O NARASIMHACAHAR
     AGED ABOUT 47 YEARS
     R/ AT NO 89/A
     4TH MAIN, 7TH CROSS
     BAPUJINAGAR, MYSORE ROAD
     BENGALURU - 26
c.   SRI B P PUSHPALATHA
     D/O LATE K PUTTASWAMY
     W/O RUDRESH
     AGED ABOUT 45 YEARS
     RESIDING AT NO 6/A
     2ND MAIN, 3RD CROSS
     1ST FLOOR, BAPUJI NAGAR
     MYSORE ROAD
     BENGALURU- 26

d.   SMT B.P DANALAKASHMI
     D/O LATE K PUTTASWAMY
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                                     NC: 2024:KHC:45783-DB
                                      RFA No. 1222 of 2010
                                    C/W RFA No. 63 of 2012



     W/O MAHESH
     AGED ABOUT 40 YEARS
     R/AT AT BYRAVESHWARANAGAR
     JALAHALLI
     BENGALURU
e.   SMT B P NANDINI @ LEELAVATHI
     D/O LATE K PUTTASWAMY
     W/O LAKSHMIKANTH
     AGED ABOUT 38 YEARS
     R/AT NO 6/A, 2ND MAIN
     3RD CROSS, GROUND FLOOR
     BAPUJI NAGAR
     MYSORE ROAD
     BENGALURU - 26
f    SRI B P MOHAN KUMAR
     S/O LATE K PUTTASWAMY
     AGED ABOUT 35 YEARS
     R/AT NO 6/A
     2ND MAIN, 3RD CROSS
     GROUND FLOOR, BAPUJI NAGAR
     MYSORE ROAD
     BENGALURU -26

     REPTD. BY THEIR PA HOLDER
     C NARAYANASWAMY
     S/O CHINNAIAH
     AGED ABOUT 34 YEARS
     R/AT NO 11
     OPPOSITE TO KAVIKA
     BYATARAYANAPURA
     MYSORE ROAD, BENGALURU- 26
                                             ...APPELLANTS
(BY SRI.P.B.AJITH.,ADVOCATE)


     AND:

1.   SMT. SUDHA
     W/O H T DWARAKANATH
     AGED ABOUT 46 YEARS
     R/AT NO. 32, 11THCROSS
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                                          NC: 2024:KHC:45783-DB
                                        RFA No. 1222 of 2010
                                      C/W RFA No. 63 of 2012



     BAPUJINAGAR
     BENGALURU - 26.


2.   SRI RAMESH
     S/O LATE K PUTTASWAMY
     AGED ABOUT 37 YEARS
     R/AT NO 6/A, 2ND MAIN
     3RD CROSS, FIRST FLOOR
     BAPUJI NAGAR
     MYSORE ROAD
     BENGALURU - 26
     (LR (g) MADE AS RESPONDENT NO 2
      AS HE IS NOT WITH OTHER LR)
                                                   ... APPELLANTS
(BY SRI.Y.K.NARAYANA SHARMA &
 SRI.Y.V.PRAKASH., ADVOCATES FOR R-1;
 SRI.H.HARINATH., ADVOCATE FOR R-2)


      THIS RFA IS FILED U/S 96, OF CPC,            AGAINST THE
JUDGMENT        AND   DECREE    DATED01.06.2010     PASSED   IN
O.S.5785/1995 C/W 9742/2006 ON THE FILE OF THE XXIV
ADDL.    CITY    CIVIL   AND   SESSIONS   JUDGE,    BANGALORE,
DISMISSING THE SUIT FOR PERMANENT INJUNCTION.


      THESE APPEALS, ARE COMING ON FOR FINAL HEARING,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:


CORAM:    HON'BLE MR JUSTICE S.G.PANDIT
          and
          HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
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                                              RFA No. 1222 of 2010
                                            C/W RFA No. 63 of 2012




                       ORAL JUDGMENT

(PER: HON'BLE MR JUSTICE S.G.PANDIT)

Plaintiffs' appeal under Section 96 of the Code of Civil

Procedure, 1908, aggrieved by the judgment and decree

dated 01.06.2010 in O.S.No.5785/1995 and

O.S.No.9742/2006 on the file of XXIV Additional City Civil

and Sessions Judge, Bangalore City, whereby the plaintiffs'

suits for injunction as well as declaration are rejected.

2. The parties would be referred to as they stand before

the trial Court.

3. The brief facts of the cases are that:

The plaintiffs initially filed a suit for bare injunction in

O.S.No.5785/1995 stating that they are in possession of

the suit schedule property having purchased the same

from Smt.Muniyamma and Smt.Mayamma under

registered sale deed dated 27.06.1980. One

Sri.Munivenkatappa was the owner of the property who

had gifted the property to his wives under Gift Deeds

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dated 20.11.1973 and 15.11.1973 i.e., in favour of

Muniyamma and Mayamma.

4. On appearance of the defendants, the defendants

filed objections to I.A.No.1 filed under Order 39 Rules 1

and 2 of CPC contending that the plaintiffs are not in

possession, whereas the defendants are in possession of

the suit schedule property. Further they stated that the

plaintiffs are not the owners and defendants are the

owners in possession of the suit schedule property. As the

defendants failed to contest the suit, the suit was decreed

ex-parte on 11.06.1999. Thereafter, on the Miscellaneous

Petition filed by defendants in Misc.Petition No.549/1999

under Order IX Rule 13 of CPC, the same was allowed on

09.07.2003, permitting the defendants to file written

statement. In the written statement, the defendants had

taken a specific contention that the plaintiffs are not

owners whereas the defendants are the owners in

possession of the suit schedule property. Taking note of

the above averment, it is stated that the plaintiffs filed

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amendment application under Order VI Rule 17 of CPC to

amend the plaint to include the prayer for declaration on

28.06.2006. On the same day, the application for

amendment was dismissed with liberty to file fresh

application. Accordingly, fresh application said to have

been filed on 12.07.2006. The said amendment

application was rejected on 05.08.2006, with liberty to the

plaintiffs to file fresh suit. Accordingly, learned counsel for

the plaintiffs submits that the fresh suit was filed on

09.11.2006, with a prayer for declaration of title in favour

of the plaintiffs. The said suit is numbered as

O.S.No.9742/2006.

5. On service of suit summons, the defendants

appeared before the Court in O.S.No.9742/2006 and filed

their written statement. In their written statement, the

defendants specifically contended that the suit prayer is

barred by time and also denied the title of the plaintiffs.

Further it is contended by the defendants that the suit for

declaration without consequential prayer of possession

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would not be maintainable. Thus, the defendants sought

for dismissal of the suits.

6. Based on the pleadings of the parties, the trial Court

framed the following issues separately in both the suits:

In O.S.No.5785/1995:

1. Whether the plaintiff proves his lawful possession over suit schedule property?

2. Whether the plaintiff further proves the unlawful interference by the defendant over the suit schedule property?

3. What Order or decree?

In O.S.No.9742/2006:

1. Does plaintiff prove that he became owner of plaint B schedule property by virtue of sale deed dated 27.06.1980 executed by Muniyamma W/o. Munivenkatappa, General Power Attorney dated 10.04.1981 executed by said Muniyamma, General Power of Attorney dated 10.06.1981 executed by Mayamma (w/o. Munivenkatappa)?

2. Does plaintiff prove that he was in lawful possession of suit schedule property on the date of suit?

3. Is the present suit barred by Order 3 Rule 2 of CPC in view of pendency of OS 5785/1995

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between the parties and dismissal of OS 6496/94 and OS 2089/95?

4. Is alleged interference true?

5. Was the schedule property part of O.S.No.5/2003 of Byatarayanapura?

6. Was the property which was bequeathed in favour of Anjanappa under the Will dated 29.11.1971 executed by Munivenkatappa subsequently sold by Munivenkatappa in favour of Ranganna under sale deed dated 05.11.1973?

7. If so, did defendant derive any title under the sale deed dated 16.01.1996 executed by Anjanappa?

8. Did plaintiff sell a portion measuring 45 ft. x 45 ft. in favour of Rudraiah on 09.10.1991 and another portion measuring 33 ft. x 33 ft. in favour of Smt.Lakshmi under sale deed dated 11.04.2005 as pleaded in para 7 of written statement?

9. Is the present suit barred by limitation?

10. Is the suit bad for non-joinder of purchasers of properties adjacent to schedule property from Munivenkatappa?

11. What decree or order?

After deleting issues 1 to 8 and 10, the following issues are framed:

1. Whether the plaintiff proves that he is the absolute owner and in possession of the suit schedule property?

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2. Whether the plaintiff proves the interference of the defendant?

3. Is the present suit barred by limitation?

4. Is the suit bad for non-joinder of purchasers of properties adjacent to schedule property from Munivenkatappa?

5. What decree or order?

Additional Issues:

1. Whether the plaintiff proves that he is the absolute owner and in possession of suit schedule property?

2. Whether the plaintiff proves the interference of the defendant?

7. In support of their case, the plaintiffs examined

two witnesses as P.W.1 and P.W.2 apart from

marking the documents as Ex.P1 to Ex.P39, whereas

the defendants also examined two witnesses as

D.W.1 and D.W.2 and marked the documents as

Ex.D1 to Ex.D48.

8. The trial Court, on appreciation of the material

on record dismissed both the suits on the ground

that the suit for declaration is barred by time and

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that the plaintiffs have failed to prove their

possession over the suit schedule property.

Aggrieved by the same, the plaintiffs are before this

Court in these two appeals.

9. Heard learned counsel Sri.P.B.Ajit for

appellants/plaintiffs and learned counsel

Sri.Y.K.Narayana Sharma for Respondents/

defendants. Perused the appeal papers as well as

trial Court records.

10. Sri.P.B.Ajit, learned counsel for the appellants/

plaintiffs would submit that the judgment and decree

in appeal is the result of non-appreciation of material

on record. Learned counsel would submit that the

suit for bare injunction was filed on 27.08.1995

which was decreed ex-parte on 11.06.1999.

Further, he submits that the judgment and decree

was set aside on 26.11.2002 whereas the application

for amendment of the prayer to include declaration

was filed on 28.06.2006. Though the said

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application was dismissed, subsequently, fresh

application was filed and limitation ought to have

been calculated from 28.06.2006 and if that day is

taken note of, the suit filed for declaration on

09.11.2006 is within time.

11. Sri.Ajit, learned counsel for the plaintiffs

further submits that the observation of the trial

Court that Munivenkatappa had executed sale deed

in favour of the plaintiffs is not correct and in fact,

he submits that wives of Munivenkatappa executed

sale deed in favour of plaintiffs, which indicates that

the learned trial judge has not applied his mind to

the materials on record. Further, learned counsel

would also submit that the trial Court failed to

appreciate the material on record and has wrongly

come to the conclusion that the plaintiffs are not in

possession of the suit schedule property. Learned

counsel would submit that the material on record

would indicate that the plaintiffs are in possession of

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the suit schedule property and suit for injunction was

on the basis of his lawful possession over the

schedule property. Thus, learned counsel would

submit that the trial Court committed a grave error

in rejecting the suits.

12. Per contra, learned counsel Sri.Y.K.Narayana

Sharma appearing for defendants would support the

judgment and decree passed by the trial Court and

further submits that the suit is hopelessly barred by

time. It is pointed out that the application for

amendment of plaint was filed on 28.06.2006,

whereas the application was rejected on 05.08.2006

with liberty to file fresh suit. But the fresh suit was

filed on 09.11.2006. Moreover, he submits that title

of the plaintiffs was denied by the defendants while

filing objections to I.A. for injunction on 12.09.1995.

Thus, learned counsel would submit that cause of

action to file the suit for declaration arose on

12.09.1995 itself and the suit filed for declaration on

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09.11.2006 is hopelessly barred by time. Further,

he submits that there is no averment in the plaint as

to when the cause of action arose for declaration.

13. Learned counsel Sri.Narayana Sharma further

contends that the first suit filed by the plaintiffs was

for permanent injunction and subsequent suit filed

by the plaintiffs was for declaration. The defendants

have pointed out that the plaintiffs are not in

possession and the averment of plaint also indicates

that the plaintiffs were not in possession. In that

circumstance, without the prayer for possession,

mere suit for declaration would not be maintainable.

Learned counsel Sri.Narayana Sharma places

reliance on the judgment of the Honb'le Supreme

Court in ANATHULLA SUDHAKAR v/s P.BUCHI

REDDY (DEAD) BY L.Rs. reported in AIR 2008 SC

2033 as well as AIR 2017 SC 1034 in the case of

EXECUTIVE OFFICER, ARULMIGU

CHOKKANATHA SWAMY KOIL TRUST,

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VIRUDHUNAGAR v/s. CHANDRAN AND OTHERS.

Learned counsel also places reliance on AIR 2011

SC 3590 in the case of KHATRI HOTELS PVT.

LTD. AND ANOTHER v/s UNION OF INDIA AND

ANOTHER and the decision reported in AIR 2015

SC 3364 in the case of L.C.HANUMANTHAPPA

DEAD BY L.Rs. v/s. H.B.SHIVAKUMAR to contend

that the limitation of 3 years would commence from

the date of cause of action first accrues to file suit

for declaration. Thus, learned counsel pray for

dismissal of the appeals.

14. On hearing the learned counsel for the parties

and on perusal of the appeal papers along with

original records of the trial Court, the following

points would arise for consideration:

(a) Whether the trial Court is justified in dismissing the suit for declaration on the question of limitation?

(b) Whether the suit of the plaintiffs for declaration without possession in the facts and circumstances would be maintainable?

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15. Answer to the above points would be in the

affirmative and negative respectively for the

following reasons:

Admittedly, the plaintiffs/appellants filed suit

for bare injunction in O.S.No.5785/1995 on

27.08.1995. Along with the suit, the plaintiffs had

also filed I.A.No.1 under 39 Rules 1 and 2 of CPC

seeking injunction against the defendants not to

interfere with their possession over the suit schedule

property. The defendants had filed objections to the

said application, though they failed to participate in

further proceedings. Objections to the application

for injunction was filed by the first defendant

Smt.Sudha on 12.09.1995. At paragraph 2 of the

objections, the defendant has stated that the alleged

claim of the plaintiffs regarding ownership,

possession and enjoyment of property as claimed by

plaintiffs is put to strict proof. At paragraph 7 of the

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objections, the defendants have contended as

follows:

"It is respectfully submitted that the defendant is the owner of the property in her possession and enjoyment. She has purchased the same under registered sale deed dated 14.11.1994 from one Sri.Anjanappa and sale deed registered as No.2150/94-95. ............"

The above averment of the defendants in the

objections filed to I.A. filed for injunction clearly

denies the title of the plaintiffs and the first

defendant asserts her ownership over suit schedule

property. When the first defendant asserts her title

over the suit schedule property by denying the title

of the plaintiffs, the suit of plaintiffs for mere

injunction would not be maintainable. In that

circumstance, the plaintiffs filed an application for

amendment of plaint on 28.06.2006, after reopening

the suit by setting aside ex-parte judgment and

decree. The said application for amendment came to

be rejected on 05.08.2006 with liberty to the

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plaintiffs to file fresh suit. Admittedly, fresh suit in

O.S.No.9742/2006 with a prayer for declaration of

title was filed on 09.11.2006. The contention of the

learned counsel for the appellants that limitation for

filing suit for declaration would commence on the

date of filing application for amendment i.e., on

28.06.2006 cannot be accepted on the face of

objection denying title of the plaintiffs filed by

defendants on 12.09.1995.

16. There is no dispute with regard to application of

Article 58 of Limitation Act to the prayer of

declaration in O.S.No.9742/2006. Article 58 makes

it clear that, to obtain any other declaration,

limitation would be 3 years which would commence

from the date, when right to sue first accrues. In

the instant case, on analyzing the suit averments,

we could safely come to the conclusion that right to

sue first accrued to the plaintiffs on 12.09.1995, the

date, on which the first defendant filed her

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objections to I.A.No.1 for injunction. Therefore, the

suit for declaration filed on 09.11.2006 is clearly

barred by time. The trial Court is justified in

dismissing the suit on the question of limitation. In

that regard, decision of the Honb'le Supreme Court

in KHATRI HOTELS PVT. LTD. AND ANOTHER

(supra) and L.C.HANUMANTHAPPA (supra) would

support the contention of the defendants.

17. O.S.No.9742/2006 filed on 09.11.2006 with the

prayer for declaration that the plaintiffs are the

absolute owners in respect of the property detailed

in schedule to the plaint and for permanent

injunction, restraining the defendant, her agents,

servants or anybody acting through her, in any way

interfering with the peaceful possession and

enjoyment of the suit schedule property. Issue No.2

in O.S.No.9742/2006 reads as follows:

"Does the plaintiffs prove that they were in lawful possession of the suit schedule property as on the date of suit?

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18. The said issue is held in the negative and the

trial Court has rightly come to the conclusion that

the plaintiffs were not in possession when the

defendants specifically denied the title of plaintiffs

and when the defendants asserted their ownership

over the suit schedule property as well as possession

it was incumbent upon the plaintiffs to add prayer

for possession along with declaration. In a suit for

possession, unless the possession is sought, mere

suit for declaration would not be maintainable as

held by the Honb'le Supreme Court in ANATHULLA

SUDHAKAR case (supra). Relevant paragraph 11

reads as follows:

"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.

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1.1 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 defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff