Karnataka High Court
Shriman Shri Jagadguru Devaru Guru vs The Chief Officer on 21 November, 2024
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NC: 2024:KHC-D:16944
RSA No. 5887 of 2013
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 21ST DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
REGULAR SECOND APPEAL NO. 5887 OF 2013 (INJ)
BETWEEN:
SHRIMAN SHRI JAGADGURU DEVARU GURU
MRUTYUNJAY SWAMI VIRAKTAMATH GAVIMATH,
R/O. MUDHOL, TQ. MUDHOL,
DIST. BAGALKOT-587101.
... APPELLANT
(BY SRI. SADIQ N.GOODWALA, ADVOCATE)
AND:
THE CHIEF OFFICER, MUNICIPALITY,
RON, DIST. GADAG-582101.
... RESPONDENT
Digitally
signed by
(SERVICE OF NOTICE TO SOLE RESPONDENT IS HELD SUFFICIENT)
VISHAL
VISHAL NINGAPPA
NINGAPPA PATTIHAL
PATTIHAL Date:
2024.11.25
10:38:01
THIS RSA IS FILED U/S.100 OF CPC AGAINST THE
+0530
JUDGMENT AND DECREE DATED 12.07.2013 PASSED IN R.A.
NO.32/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JMFC, RON, DISMISSING THE APPEAL FILED AGAINST THE
JUDGMENT AND DECREE DATED 03.11.2012 AND THE DECREE
PASSED IN O.S. NO.76/2012 ON THE FILE OF THE CIVIL JUDGE,
RON, DISMISSING THE SUIT FILED FOR MANDATORY
INJUNCTION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
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NC: 2024:KHC-D:16944
RSA No. 5887 of 2013
ORAL JUDGMENT
1. Plaintiff is before this Court, in this Regular
Second Appeal, assailing the concurrent findings of fact
recorded by the Courts below.
2. The parties herein are referred to as per their
rank before the trial Court, for the sake of convenience.
3. Suit for the relief of mandatory injunction
directing the defendant's to mutate the name of the plaintiff
in the CTS extract. The case of the plaintiff is that the
property originally belonged to Mrutyunjay Swami
Gurubasalingaswami Viraktamath. That the said property
belonged to Mudhol Matha. The plaintiff is the successor of
the said Swamy. After the death of Mrutyunjay Swamy
Viraktamath, the plaintiff is the successor and he is the
absolute owner and in possession and enjoyment of the suit
property. The case of the plaintiff is that, at the instigation
of some of the members of the Panchayat, a resolution was
passed on 14.03.2011 against the plaintiff which is illegal
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and due to the resolution there is obstruction to the plaintiff
putting up building and carry any activities in the suit
property.
4. On summons, the defendant appeared through
his counsel, however, did not file any written statement.
5. In order to substantiate his claim, the plaintiff
examined himself as PW1 and marked documents at Exs.P1
to P6.
6. The trail Court based on the pleadings, oral and
documentary evidence, arrived at a conclusion that the
plaintiff has failed to prove that he is entitled for mandatory
injunction and dismissed the suit of the plaintiff. Aggrieved,
the plaintiff preferred appeal before the First Appellate
Court. The First Appellate Court while re-appreciating and
re-considering the entire oral and documentary evidence,
affirmed the judgment and decree of the trial Court. Against
which, the plaintiff is before this Court in this Regular
Second Appeal.
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7. Heard the learned counsel appearing for the
appellant and perused the materials available on record.
8. The claim of the plaintiff is to enter his name in
the revenue records in respect of the suit property. The
contention of the plaintiff is that after the death of the
Mrutyunjay Swami plaintiff is the successor, and absolute
owner in possession of the suit property. The trial court
observed that when the plaintiff gave an application to
mutate his name, there was objection from one
C.K. Sunkand, Chairman of Basaveshwar Uchita Prasad
Nilaya, making it clear that the plaintiffs ownership over
the suit property was objected and held that suit seeking
relief of mandatory injunction with declaration is not
maintainable and trial Court dismissed the suit. The First
appellate court also arrived at a conclusion that there was
objections to the entry of the name of the plaintiff in the
revenue records pertaining to the suit property and hence
suit for mandatory injunction without declaration is not
maintainable. The law is well settled that when there is
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cloud over the title of the plaintiff suit of injunction is not
maintainable without seeking declaration, the Apex court in
the case of Anathula Sudhakar Vs. P.Buchi Reddy
(Dead) by L.Rs. and others1, wherein at paragraph No.21
has held as under:
"21. To summarize, the position in regard to
suits for prohibitory injunction relating 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 without a
consequential injunction, is the remedy. Where
the plaintiff's title is not in dispute or under a
cloud, but he is out of possession, 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 substantially in issue.
The prayer for injunction will be decided with
(2008) 4 SCC 594
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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
possession.
(c) But a finding on title cannot be recorded in a
suit for injunction, unless there are necessary
pleadings and appropriate issue 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
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which parties lead evidence, if the matter
involved is simple and straight-forward, the
court may decide upon the issue regarding title,
even in a suit for injunction. But such cases,
are the exception to the normal rule that
question 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."
9. The manner in which thecourts below assessed
the entire oral and documentary evidence, this Court is of
the considered view that concurrent findings of fact does
not warrant any interference under Section 100 of CPC and
no substantial question of law arises for consideration,
accordingly, this Court pass the following:
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ORDER
(i) The Regular Second Appeal is hereby
dismissed.
(ii) The judgment and decree of the Courts
below stands confirmed.
Sd/-
(JUSTICE K.S.HEMALEKHA)
VNP / CT: PA
