Karnataka High Court

Krishnappa Mallappa Badiger vs Hallappa Sannabasappa Pujar on 25 November, 2024

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                                                         NC: 2024:KHC-D:17217
                                                     RSA No. 100055 of 2014




                               IN THE HIGH COURT OF KARNATAKA,
                                       DHARWAD BENCH

                           DATED THIS THE 25TH DAY OF NOVEMBER, 2024

                                            BEFORE

                            THE HON'BLE MRS JUSTICE K.S.HEMALEKHA

                               RSA NO. 100055 OF 2014 (DEC/INJ)

                      BETWEEN:

                      KRISHNAPPA S/O. MALLAPPA BADIGER,
                      AGE: 59 YEARS, OCC. AGRICULTURE,
                      R/O. HERUR, TQ. HANGAL,
                      DIST. HAVERI-581 104.
                                                               ... APPELLANT
                      (BY SRI. ARAVIND D KULKARNI, ADVOCATE)

                      AND:

                      1.    HALLAPPA @ HOLABASAPPA
                            S/O. SANNABASAPPA PUJAR,
                            SINCE DECEASED BY HIS LRS.
         Digitally
         signed by
         VISHAL
VISHAL   NINGAPPA
NINGAPPA PATTIHAL
PATTIHAL Date:
         2024.11.28
                      1A. SMT. CHANNABASAVVA @ SUSHILAVVA
         10:18:52
         +0530            W/O. HALAPPA @ HOLABASAPPA PUJAR,
                          AGE: 44 YEARS, OCC. HOUSEHOLD,

                      1B. BHUDEPPA S/O. HALAPPA
                          @ HOLABASAPPA PUJAR,
                          AGE: 32 YEARS, OCC. AGRICULTURE,

                      1C. RAJESHEKHAR S/O. HALAPPA
                          @ HOLABASAPPA PUJAR,
                          AGE: 30 YEARS, OCC. AGRICULTURE,

                      1D. NEELAVVA D/O. HALAPPA
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                                  NC: 2024:KHC-D:17217
                                RSA No. 100055 of 2014




      @ HOLABASAPPA PUJAR,
      AGE: 28 YEARS, OCC. HOUSEHOLD,

1E. RENUKA D/O. HALAPPA
    @ HOLABASAPPA PUJAR,
    AGE: 26 YEARS, OCC. HOUSEHOLD,

1F.   SHIVALINGAVVA D/O. HALAPPA
      @ HOLABASAPPA PUJAR,
      AGE: 30 YEARS, OCC. HOUSEHOLD,

      ALL ARE R/O. HERUR,
      TQ. HANGAL AND DIST. HAVERI-581 148.

                                       ... RESPONDENTS

(BY SRI. LAXMAN T MANTAGANI, ADVOCATE FOR R1 TO
R6 (I.E. R1(A) TO R1(F))

      THIS RSA IS FILED U/S.100 OF CPC 1908, AGAINST
THE    JUDGEMENT   AND   DECREE   DATED      20.04.2013
PASSED IN R.A.NO.24/2008 ON THE FILE OF THE SENIOR
DIVISION CIVIL JUDGE, HANGAL, ALLOWING THE APPEAL,
FILED AGAINST THE JUDGMENT AND DECREE DATED
08.08.2008   AND   THE   DECREE    PASSED     IN   O.S.
NO.112/2006 ON THE FILE OF THE CIVIL JUDGE (JR.DN.)
AND JMFC., AT HANGAL, DECREEING THE SUIT FILED FOR
DECLARATION AND PERMANENT INJUNCTION.


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


CORAM: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
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                                       NC: 2024:KHC-D:17217
                                    RSA No. 100055 of 2014




                    ORAL JUDGMENT

Assailing the judgment and decree in

R.A.No.24/2008 dated 20.04.2013 on the file of the Senior

Division Civil Judge, Hangal (hereinafter referred to as

"First Appellate Court" for short), reversing judgment and

decree in O.S.No.112/2006 dated 08.08.2008 on the file of

Civil Judge (Jr.Dn) and JMFC, Hangal (hereinafter referred

to as "trial Court" for short) the plaintiff is before this

Court in this Regular Second Appeal.

2. Parties herein are referred to as per the rank

before the trial Court for sake of convenience.

3. Suit seeking for declaration, mandatory and

permanent injunction in respect of VPC No.162 measuring

East-West 27 feet and North-South as per the hand sketch

map shown as "ABCD" (hereinafter referred to as "Suit

Property" for short). The case of the plaintiff is that

Mallappa Fakkirappa Badiger, the father of the plaintiff

was the absolute owner of the suit property and on his

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death, the plaintiff acquired the suit property under

inheritance, that towards Northern side of the plaintiff's

property the predecessor has constructed a tiled house, it

is downstair to the Western side bathroom water and also

constructed in the suit property, the defendant in the year

2006 January closed the "ABEF" canal and without licence

of the Panchayat he has put up a temporary shed in the

suit property as "GHIJ" portion shown in the hand sketch

map.

4. On notice the defendant appeared and filed his

written statement inter alia denying the plaint averments

and contending that the "ABEF" canal is in suit property is

false that the plaintiff's backyard water flows to the

Southern side of the VPC of the suit property and also flow

to the Southern side of the drainage, that the suit of the

plaintiff is not maintainable.

5. The trial Court based on the pleadings framed

the necessary issues. In order to substantiate their claim

the plaintiff examined himself as PW1, two witnesses as

NC: 2024:KHC-D:17217

PW2 and PW3, marked documents at Ex.P1 to Ex.P11. On

the other hand the defendant examined himself as DW1,

marked documents at Ex.D1 to Ex.D2.

6. The trial Court decreed the suit directing the

defendant to remove the temporary shed, temporary

bathroom and also 4 feet wall, which is shown in hand

sketch "BFKL". Feeling aggrieved, the defendant preferred

appeal before the First Appellate Court. The First

Appellate Court while re-appreciating the entire oral and

documentary evidence arrived at a conclusion that the

plaintiff has preferred suit for mandatory injunction

without seeking possession and the suit of the plaintiff is

defective. By the judgment and decree, the First Appellate

Court allowed the appeal preferred by the defendant,

setting aside the judgment and decree of the trial Court

and held that the suit of the plaintiff is not maintainable.

Feeling aggrieved, the plaintiff is before this Court in this

Regular Second Appeal.

NC: 2024:KHC-D:17217

7. Heard the learned counsel for the appellant and

learned counsel for the respondents and perused the

material on record.

8. The plaintiff's suit for declaration, mandatory

and permanent injunction, according to the plaintiff

himself the defendant has encroached upon the suit

property which belonged to the plaintiff, when the case of

the plaintiff is that he is out of possession, he has to sue

for possession and consequential relief of possession. The

law is well settled that when the plaintiff is out of

possession, his suit without relief of possession is not

maintainable. The Apex Court in the case of Anathula

Sudhakar Vs. P.Buchi Reddy (Dead) by L.Rs. and

Others1 (Anathula Sudhakar) has summarized under what

circumstances consequential relief would be sought and

held at paragraph No.21 reads as under:

(2008) 4 SCC 594

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"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 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.

NC: 2024:KHC-D:17217

(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 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

NC: 2024:KHC-D:17217

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. In light of the settled proposition of law, the

First Appellate Court was right in arriving at a conclusion

that the plaintiff's suit for declaration, mandatory and

permanent injunction without seeking possession was not

maintainable and there is no error committed by the First

Appellate Court. The manner in which the First Appellate

Court has the assessed entire oral and documentary

evidence this Court is of the considered view there is no

perversity and illegality in the judgment of the First

Appellate Court warranting any interference under Section

100 CPC and no substantial question of law arise for

consideration in the present appeal and this Court pass the