Karnataka High Court

Smt Mariyamma vs Christian Assembly on 20 November, 2024

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                                                            NC: 2024:KHC-D:16878
                                                            RSA No. 930 of 2008




                                 IN THE HIGH COURT OF KARNATAKA,
                                         DHARWAD BENCH

                             DATED THIS THE 20TH DAY OF NOVEMBER, 2024

                                               BEFORE

                              THE HON'BLE MRS JUSTICE K.S.HEMALEKHA

                              REGULAR SECOND APPEAL NO. 930 OF 2008

                        BETWEEN:

                        1.   SMT. MARIYAMMA
                             W/O. YESURATHNAM NANDAM,
                             AGED ABOUT 39 YEARS,

                        2.   SRI. GEORGE S/O. YOHAN NANDAM,
                             AGED ABOUT 41 YEARS,

                        3.   SRI. PRATAP S/O. YOHAN NANDAM,
                             AGED ABOUT 39 YEARS,

                        4.   SRI. RUBEN S/O. YOHAN NANDAM,
           Digitally
           signed by
                             AGED ABOUT 36 YEARS,
           VISHAL
VISHAL     NINGAPPA
NINGAPPA   PATTIHAL
PATTIHAL   Date:
           2024.11.27
           10:34:38
           +0530
                             ALL ARE RESIDING AT: MANTUR ROAD,
                             HUBLI - 580 20.
                                                                   ...APPELLANTS
                        (BY SRI. V M SHEELVANT, ADVOCATE)

                        AND:

                        1.   CHRISTIAN ASSEMBLY
                             (REGD) REPRESENTED BY ITS PRESIDENT,
                             SRI. P JOHN, AGED ABOUT 70 YEARS,
                             OCC. PASTOR, R/O. MANTUR ROAD, HUBLI,
                             BY HIS GPA HOLDER SRI. SESHAM,
                             S/O. SAMSON NAGAIAH,
                         -2-
                                  NC: 2024:KHC-D:16878
                                  RSA No. 930 of 2008




     AGED ABOUT 55 YEARS,
     R/O. MANTUR JOPADI,
     HUBLI - 580 020.

2.   SMT. ANNAMMA
     W/O. KASHAYYA KANDI,
     AGED ABOUT 79 YEARS,

3.   SRI. BABURAO
     S/O. KASHAYYA KANDI,
     AGED ABOUT 59 YEARS,

4.   SRI. SHEKHAR
     S/O. KASHAYYA KANDI,
     AGED ABOUT 40 YEARS,

    2 TO 4 ARE RESIDING AT MANTUR ROAD,
    HUBLI - 580 020.
                                    ... RESPONDENTS
(BY SRI. RAMACHANDRA A MALI, ADVOCATE FOR R1;
R2 TO R4 ARE NOTICE SERVED)

     THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DTD 16.01.2008 PASSED IN R.A.NO
135/06 ON THE FILE OF THE II ADDL. CIVIL JUDGE,
(SR.DN), HUBLI, ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGEMENT AND DECREE DTD 10.10.06
PASSED IN OS 176/01 ON THE FILE OF THE IV ADDL. CIVIL
JUDGE, (JR.DN), HUBLI.

    THIS  APPEAL, COMING ON   FOR  DICTATING
JUDGMENT, JUDGMENT WAS DELIVERED THEREIN AS
UNDER:

CORAM: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
                                 -3-
                                           NC: 2024:KHC-D:16878
                                           RSA No. 930 of 2008




                       ORAL JUDGMENT

Assailing the concurrent findings of facts recorded by

the Courts below, defendant Nos.2 to 5 are before this

Court in this Regular Second Appeal.

2. Brief facts are that:

Suit for mandatory injunction directing the defendants

to remove the unauthorized construction over the suit

property and to deliver vacant possession of the suit

property. Sy.No.99/2 measuring 14 guntas situated at M.

Aralikatti village, Tq. Hubballi (herein after referred to as

"Suit property" for short).

3. Plaint averments:

i. Plaintiff is a registered society registered under the

Karnataka Societies Act, 1960, the plaintiff is the

President of the Christian Assembly and he is

authorized to file the suit, the President has executed

a General Power of Attorney in favor of Sri Shesham

s/o Shamson Nagaiah and he has filed the suit.

NC: 2024:KHC-D:16878

ii. The property bearing Sy.No.99 measuring 4957.3862

square meters has been declared as excess land by

the competent authority and Deputy Commissioner,

Dharwad in U.L.C No.53/83-84 dated 14.05.1987

under the provision of Urban Land Ceiling and

Regulations Act, 1976.

iii. That said land has been sanctioned to the Hubballi-

Dharwad Urban Development Authority (hereinafter

referred to as "HDUDA" for short) for residential

purposes for Rs.19,828/-.

iv. The UDA granted 35 guntas out of the above said land

to "Harijan Seva Samiti Registered", Hubballi

(hereinafter referred to as "HSSR" for short) and 14

guntas to the plaintiff-association, as per the order of

the HDUDA, the HSSR deposited Rs.14,163/- and the

plaintiff-association has deposited Rs.5,665/- on

09.06.1992. Accordingly, 35 guntas were granted to

the plaintiff-association.

NC: 2024:KHC-D:16878

v. The ADLR measured the property and sub-divided the

Sy.No.99 into Sy.Nos.99/1 and 99/2.

vi. The property granted to the plaintiff- association was

numbered as Sy.No.99/2 measuring 14 guntas, the

plaintiff-association is the owner put in vacant

possession of the suit property on the date of the

order by the HDUDA.

vii. Defendants illegally entered the suit property and put

up unauthorized temporary construction in the portion

of the suit property as marked as "E F G H" and "A B J

I" in the hand sketch, the defendants are trespassers

and they have made this temporary construction

unauthorizedly about 4 to 5 years back, the

defendants filed suit OS No.583/1992 and the said suit

has been dismissed on 15.06.1999. The plaintiff-

association is the owner and defendants are

trespassers and hence sought for directing the

defendants to hand over the vacant possession of the

suit property.

NC: 2024:KHC-D:16878

4. On notice defendant Nos.2 to 8 appeared and

filed their written statement and counter claim.

5. Written statement and counter claim averments:

The plaintiff being a registered association, the person

who has subscribed the signature in the plaint has no locus

standi or authority to institute the suit and thus the

structural frame of the plaint seriously suffers from

incurable, irregularities. The defendants sought to implead

defendant Nos.9 to 13 in the counter claim. The defendants

averred that the Order under Reference

No.HDUDA/Land/CR/10/89/90 dated 11.07.1992 in favor of

the plaintiff-association and also another institution under

the name and style of Harijan Seva Samithi (Regd), Hubballi

and thereby 14 guntas of land i.e., suit property was given

to the aforesaid Harijan Seva Samithi (Regd.), Hubballi, and

contended that was behind the back of the defendants. The

defendants by way of counter claim sought to declare that

the impugned order passed by the proposed defendant No.9

namely HDUDA on 14.07.1992 is illegal, void, ultra vires,

NC: 2024:KHC-D:16878

without jurisdiction and not binding upon defendant Nos.2

to 8. That the one Venkatesh Gudi though he was the

absolute owner and lawful owner of the suit property, and

Kashiah and late Yohan had illegally and unauthorizedly

occupied the suit property for their residential purpose at

the inception itself, even then the owners did not taken any

legal action against deceased person from ousting them

from the suit property and to recover the possession and

kept quite without asserting the limitation of adverse

possession by the aforesaid two deceased person i.e.,

Kashiah and late Yohan, the limitation started running

constantly and continuously along with the actual

possession and enjoyment of the suit property openly,

notoriously and adversely. That the deceased ancestors

became the absolute owners and lawful owners of the entire

property by virtue of adverse possession.

6. The trial Court based on the pleadings framed

following issues:

NC: 2024:KHC-D:16878

"1. Whether the plaintiff proves that plaintiff's society is a registered one and he is the owner and in possession and enjoyment of suit property as on the date of filing of suit?

2. Whether the plaintiff proves that the defendants without having any right over the suit property, have illegally constructed the temporary structure by encroaching the plaintiff's property?

3. Whether the defendants prove that they are in possession and enjoyment of suit property even prior to the handing over possession of the suit property to the plaintiff by the concerned authorities?

4. Whether the suit of plaintiff is entitled for the relief of mandatory injunction?

5. Whether the plaintiff is entitled for the relief of vacant possession of suit property from the defendants?

6. What order or decree"

7. While answering issue No.1 the trial Court

observed Ex.P1, the General Power of Attorney given by

Christian Assembly in favor of PW1 and Ex.P8 the minutes

NC: 2024:KHC-D:16878

of meeting dated 25.08.1999 by the members of the

Christian Assembly, in which the resolution was passed by

the secretary in which PW1 was given authorization to file

the suit and discarded the contentions of the defendants

about the locus standi of PW1 to file the suit on behalf of

plaintiff-association and held that PW1 had locus standi to

file the suit. The trial Court while answering issue No.1

arrived at a conclusion that the plaintiff-association is a

registered one and the owner in possession and enjoyment

of the suit property. However, the trial Court while

answering issue Nos.2 to 5 refused to grant mandatory

injunction holding that the mandatory injunction to be

granted in the rarest of rare cases, only where there is any

substantial loss. The trial Court by the judgment and

decree dismissed the suit of the plaintiff in entirety. Appeal

was preferred by the plaintiff against the judgment and

decree in OS No.176/2001 before the First Appellate Court,

no appeal was preferred by the defendants against the

findings recorded on issue No.1 holding plaintiff to be the

absolute owner of the suit property and issue No.3 holding

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NC: 2024:KHC-D:16878

that defendants failed to prove their possession and

enjoyment of the suit property even prior to the grant in

favor of the plaintiff.

8. The First Appellate Court while appreciating the

entire oral and documentary evidence framed the following

points for consideration:

"1. Whether the judgment and decree dated 10/10/2006 is not based on pleadings and evidence and hence it needs interference by this court?

2. What order?"

9. The First Appellate Court allowed the appeal set-

aside the judgment and decree of the trial Court and

decreed the suit in entirety directing the defendants to

remove unauthorized construction in the suit property

within 6 months from the date of the order. Feeling

aggrieved, the defendants are before this Court.

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NC: 2024:KHC-D:16878

10. This Court while admitting the appeal on

11.06.2008 framed the following substantial question of

law:

"Whether the lower appellate Court was justified

in granting the relief of mandatory injunction without

deciding the title of the suit property?"

11. Heard Sri V.M. Sheelvant, learned counsel for the

appellants and Sri Ramachandra A. Mali., learned counsel

for respondent No.1 on the substantial question of law

framed by this Court.

12. The case of the plaintiff is that suit property was

allotted to the plaintiff under the grant order dated

14.7.1992 by HDUDA, from the date of grant they are in

possession of the suit property, that the defendants about 4

to 5 years prior to the suit trespassed put up illegal

structures. On the other hand defendants raised contention

that mere suit for mandatory injunction without declaration

of title is not maintainable, by seeking to implead the

HDUDA and others in the written statement cum counter

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NC: 2024:KHC-D:16878

claim contended that the allotment of land in favor of the

plaintiff is illegal, that the suit property was belonging to

one Venkatesh Gudi and the forefathers of the defendants

namely Yohan and Kashiah were in possession of the suit

property to the knowledge of Venkatesh Gudi continuously,

adversely to his interest and the ancestors have perfected

their title by way of adverse possession and by way of

counter claim sort ancillary relief restraining the plaintiff,

proposed defendant Nos.9 to 11 from interfering actual

possession and enjoyment of suit property and also sort for

declaration that the order of HDUDA dated 14.07.1992

granting suit property to the plaintiff is illegal, null and void.

The trial Court while answering issue Nos.1 and 3 arrived at

a conclusion that the plaintiff-association is the registered

one and owner in possession and enjoyment of the suit

property. Further the trial Court held that the defendants

failed to prove that they are in possession and enjoyment of

the suit property even prior to the handing over of

possession of the suit property to the plaintiff by the

concerned authority. The findings recorded on issue Nos.1

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NC: 2024:KHC-D:16878

and 3 are not assailed by the defendants, the said findings

have attained finality.

13. Ex.P6 is the grant order dated 14.07.1992, the

terms and condition of the grant is culled out as under:

"1. ¸ÀzÀgÀ eÁUÉAiÀÄ£ÀÄß AiÀiÁªÀ GzÉÝÃ±ÀPÁÌV PÉÆqÀ¯ÁVzÉAiÉÆÃ CzÉÃ GzÉÝÃ±ÀzÀ ¸À®ÄªÁV G¥ÀAiÉÆÃUÀ¸ÀvÀPÀÌzÀÄÝ ¨ÉÃgÉ GzÉÝÃ±ÀzÀ ¸À®ÄªÁV G¥ÀAiÉÆÃV¸ÀvÀPÀÌzÀÝ®è.

2. RjÃ¢zÁgÀgÀÄ ¸ÀzÀgÀ eÁVAiÀÄ°è PÀlÖzÀ PÀlÄÖªÀzÀQÌAvÀ ¥ÀÆªÀðzÀ°è ¥Áæ¢üPÁgÀzÀ ºÁUÀÆ ªÀÄºÁ£ÀUÀgÀ ¸À¨sÉÃ¬ÄAzÀ ¥ÀÄªÀð ¥ÀgÀªÁ¤UÉ ¥ÀqÉzÀÄPÉÆAqÀÄ PÀlÖqÀ PÀlÖvÀPÀÌzÀÄÝ.

3. RjÃ¢zÁgÀgÀÄ ¸ÀzÀgÀ eÁUÉAiÀÄ£ÀÄß PÀ¨ÁÓ vÉUÉzÀÄPÉÆAqÀÄ ¢£ÁAPÀ¢AzÀ ªÀÄºÁ£ÀUÀgÀ ¸À¨sÉAiÀÄ ºÁUÀÆ ¸ÀgÀPÁgÀzÀªÀgÀÄ DPÀj¸ÀÄªÀ D¹ÛPgÀ ªÀUÉÊgÉ PÁ® PÁ®PÉÌ eÁåjAiÀÄ°ègÀÄªÀ ¤AiÀÄªÀiÁ£ÀÄ¸ÁgÀ vÀÄA§vÀPÀÌzÀÄÝ.

4. RjÃ¢zÁgÀgÀ ¸ÀzÀj eÁUÉAiÀÄ£ÀÄß AiÀiÁªÀzÉÃ jÃw¬ÄAzÀ ¥ÀgÀ¨sÁj ªÀiÁqÀvÀPÀÌzÀÝ®è. ¥ÀgÀ¨sÁj ªÀiÁrzÀ°è ¸ÀzÀgÀ d«ÄÃ£À£ÀÄß ¥Áæ¢üPÁgÀªÀÅ vÀ£Àß ªÀ±ÀPÉÌÃ vÉUÉzÀÄPÉÆ¼Àî¯ÁUÀÄªÀzÀÄ.

5. ¥Áæ¢üPÁgÀzÀ ¤AiÀÄªÀiÁªÀ½UÀ¼ÀÄ ºÁUÀÄ PÀlÖqÀzÀ eÁUÉAiÀÄ G¥À¤AiÀÄªÀiÁªÀ½UÀ¼À£ÀéAiÀÄ RjÃ¢zÁgÀgÀÄ ¥Áèn£À RjÃ¢ £ÉÆÃAzÁzÀ JgÀqÀÄ ªÀµÀðzÉÆ¼ÀUÁV vÀªÀÄä eÁUÉAiÀÄ°èAiÉÄÃ ªÀÄAdÆgÁzÀ £ÀPÉëAiÀÄ£ÀéAiÀÄ PÀlÖqÀ PÀlÖvÀPÀÌzÀÄÝ.

6. ¸ÀzÀgÀ eÁUÉAiÀÄ£ÀÄß EzÀÝ ¹ÜwAiÀÄ°èAiÉÄÃ PÉÆqÀ¯ÁVzÉ.

7. MAzÀÄ ªÉÃ¼É RjÃ¢zÁgÀgÀÄ ªÉÄÃ¯ÁÌtÂ¹zÀ PÀgÁgÀÄUÀ½UÉ ªÀåwjPÀÛªÁV £ÀqÉzÀÄPÉÆAqÀ°è ¥Áæ¢üPÁgÀªÀÅ D¹ÛAiÀÄ£ÀÄß ¥ÀÄ£Àgï

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NC: 2024:KHC-D:16878

ªÀ±À¥Àr¹PÉÆ¼Àî®Ä CªÀ¢üªÉÊvÉzÀ°è C¢üPÁgÀÄ¼ÀîªÀ£ÀÄ DVgÀÄvÁÛ£É."

(Emphasis supplied)

14. The perusal of the terms and conditions indicate

that the possession of the suit property was handed over to

the plaintiff under the grant dated 14.07.1992, the grant in

favor of the plaintiff is not questioned by the defendants

before any competent forum and the trial Court rightly

arrived at a conclusion that the plaintiff is the owner and in

enjoyment of the suit property. When there is no cloud over

the plaintiff's title, the plaintiff cannot be asked to file suit

for declaration and suit simpliciter for injunction with

declaration of title is maintainable, suit for declaration of

title is necessary only when the defendant's denial of the

plaintiff's title raises a cloud over the plaintiff's title to the

property. A cloud is said to exist when there is some

apparent defect in the title or a prima facie claim by a third

party. The Apex court in KURELLA NAGA DRUVA VUDAYA

BHASKARA RAO VS. GALLA JANI KAMMA ALIAS

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NC: 2024:KHC-D:16878

NACHARAMMA1 and the Apex court in ANATHULLA

SUDHAKAR VS. BUCHI REDDY (DEAD) BY L.RS. AND

OTHERS2 summarized when a suit for declaration needs to

be filed and when simplicitor suit for injunction. In the

instant case there is a grant in favor of the plaintiff, mere

denial by the defendants, who were trespasser does not

constitute a cloud over the title, and thus a suit for

declaration of title is not necessary as there is no serious

challenge to the title of the plaintiff, trial Court and First

Appellate Court held that the plaintiff is owner in light of the

grant in its favor, the First Appellate Court was right in

granting relief of mandatory injunction, accordingly the

substantial question of law is answered.

15. During the course of the argument, learned

counsel for the appellants raised a contention that the

delegation of power by the President of the Society in favor

of the Power of Attorney was not permissible. It is relevant

(2008) 15 SCC 150

(2008) 4 SCC 594

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NC: 2024:KHC-D:16878

to state that the delegation is a process of assigning the

responsibility and authority to another person to carry out

specific tasks or activities by retaining overall

accountability. The Power of Attorney is a legal document

that allows an individual i.e., the principal to delegate

authority to another person or the agent to act on their

behalf in the specified manner. The delegation of power

through the Power of Attorney enrich from the broad

authority to specific limited task. The approval of the

governing body of the Society or the general body, who had

authorized the President to delegate his power validate the

action of the President. Ex.P8 is the meeting of the

Managing Committee held on 25.08.1999, wherein, it was

proposed that the President Shri P. John was authorized to

file the suit or appeal etc., on behalf of the Christian

Assembly in respect of Sy.No.99/2, the subject matter of

the present appeal. The President, executed a Power of

Attorney in favor of Shesham S/o. Samson Nagaiah as

President is the Paster could not attend the work due to

various activities and he has executed the General Power of

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Attorney in the name of attorney holder to do the following

acts, deeds and things in the name and on his behalf

indicating the following acts.

1. "To file the suit in respect of Survey No.99/2 of M.ARALIKATTI village and to defend the suit in respect of the above land.

2. To engage an Advocate, in respect of the above said land, give instructions, to sign, verify the plaint and written statement and applications and objections.

3. To file Appeal, Revisions, execution petitions affidavits, or any other documents etc., in the court or before the other authorities.

4. To produce, withdraw, and receive the documents and to deposit money in the Court and to receive cheques from the court.

5. To give evidence, and to compromise the suit, and any proceedings before the court or any other authorities.

6. To file any police complaints and take possession of the said property and to issue any receipt on my behalf.

7. To pay taxes before the Corporation authorities and other authorities in respect of the above said land.

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NC: 2024:KHC-D:16878

8. To obtain the building permission and to engage Engineer, Architect etc., for the construction of the Church and the other buildings in the said property.

9. To manage and maintain above said property.

10. To do incidental acts, deeds and things in furtherance of the above objects or which are necessary for the efficient prosecution and to manage the said property, in respect of the above said land."

16. The execution of Power of Attorney by the

President of the Society in favor of Shesham to file a suit on

behalf of the Trust, though amounts to a delegation of

power, the language of the document, which is stated

above, his delegation of certain powers, like the signing of

the plaint, to file the present suit. The Society does not

prohibit any such delegation and it cannot be deemed to be

unauthorized. The trial Court while answering the issue

No.1 categorically held that PW1 had locus standi to file the

suit. The said findings recorded by the trial Court has stood

un-assailed by the defendants. In the said circumstances,

the contention raised by the appellants' counsel regarding