Karnataka High Court

Shri Yenkanna S/O Late Mareppa vs Smt. Yenkamma on 28 October, 2024

Author: Suraj Govindaraj

Bench: Suraj Govindaraj

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                                                  WP No. 201380 of 2023




                     IN THE HIGH COURT OF KARNATAKA,

                              KALABURAGI BENCH

               DATED THIS THE 28TH DAY OF OCTOBER, 2024

                                     BEFORE
               THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
              WRIT PETITION NO. 201380 OF 2023 (GM-CPC)
            BETWEEN:

            SHRI YENKANNA
            S/O LATE MAREPPA
            AGED ABOUT 54 YEARS,
            OCC AGRICULTURE,
            R/O H.NO. 6-3-107(NEW)
            THIMMAPURPET,
            BRB COLLEGE CIRCLE,
            RAICHUR 584101
                                                            ...PETITIONER

            (BY SRI. HULEPPA HEROOR., ADVOCATE)


            AND:

              1. SMT. YENKAMMA
Digitally
signed by        W/O GOVINDAPPA
PRAKASH N        AGED ABOUT 55 YEARS,
                 OCC HOUSEHOLD AFFAIRS,
Location:
HIGH
COURT OF      2. SMT. RADHA
KARNATAKA        W/O VEERESH
                 AGED ABOUT 42 YEARS,
                 OCC HOUSEHOLD,

              3. SHRI RAMESH
                 S/O GOVINDAPPA
                 AGE. 35 YEARS,
                 OCC HOUSEHOLD,
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                                              NC: 2024:KHC-K:7974
                                          WP No. 201380 of 2023




      ALL ARE R/O NEAR VEERESH HOTEL
      OPP. BRB COLLEGE ROAD,
      THIMMAPURPET, RAICHUR 584101

                                              ... RESPONDENTS

(BY SRI. MAHADEV S. PATIL., ADVOCATE FOR R1 TO R3)

THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI BY QUASHING THE ORDER DISMISSING THE TI. VIDE ORDER DATED 15.11.2022 IN O.S.NO.199 OF 2022 PASSED BY THE LEARNED II ADDL. CIVIL JUDGE AND JMFC IV AT RAICHUR WHICH IS PLACED AT ANNEXURE-F AND THE ORDER DATED 21.03.2023 IN M.A.NO.1 OF 2023 PASSED BY THE LEARNED PRINICIPAL SENIOR CIVIL JUDGE & CJM AT RAICHUR CONFIRMING THE DISMISSAL ORDER OF TRIAL COURT WHICH IS PLACED AT ANNEXURE-G AND ETC.

THIS WRIT PETITION COMING ON FOR ORDERS AND HAVING BEEN RESERVED FOR ORDERS ON 26.09.2024, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

CORAM: HON'BLE MR. JUSTICE SURAJ GOVINDARAJ

CAV ORDER (PER: HON'BLE MR. JUSTICE SURAJ GOVINDARAJ)

1. The Petitioner is before this Court seeking for the

following reliefs:

i. Issue a writ of certiorari by quashing the order dismissing the TI vide order dated 15.11.2022 in O.S.No.199 of 2022 passed by the learned II Addl. Civil Judge and JMFC IV at Raichur which is placed at Annexure-F and the order dated 21.03.2023 in M.A.NO.1 of 2023 passed by the learned Principal Senior Civil Judge & CJM at Raichur confirming the dismissal order of Trial Court which is placed at Annexure-G;


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        ii.    Grant      TI    as    prayed      for   by    the

plaintiff/petitioner as pr IA filed along with the plaint in O.S.No.199/2022 pending on the file of the learned II Addl. Civil Judge & JMFC-IV at Raichur which is placed at Annexure-A;

iii. Grant such other relief as this Hon'ble Court deems fit under the facts and circumstances of the case in the interest of justice and equity.

2. The Petitioner had filed a suit O.S.No.199/2022

before the learned II Additional Judge and JMFC-IV at

Raichur seeking for permanent injunction restraining

the defendant therein from interference with the

possession of the petitioner in the said suit, an

application under Order XXXIX rules 1 and 2 had

been filed seeking for injunction and an ex-parte ad-

interim order of injunction was granted on

07.07.2022.

3. Notice having been ordered on the defendants, they

entered appearance, filed the written statement, and

the ex-parte interim order came to be vacated by

dismissing I.A.No.1 on 15.11.2022. An appeal in

MA.No.1/2023 having been filed, the same came to

be dismissed on 21.03.2023. It is challenging both

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the above-mentioned orders, the petitioner is before

this Court.

4. The petitioner claims to be in actual possession of

the suit schedule property bearing MPL No.6-3-

107(New), 6-3-98/1(Old), measuring 75 ft X 75 ft =

5,625 SFT situated at G.D. Thota, Thimmapurpet

Locality, BRB College Road, Raichur under a sale

deed dated 31.10.2001.

5. After obtaining permission from CMC Raichur, a

hospital building was constructed on the said

property with a plinth area of 4,228 Sq.Ft. and the

remaining area of 1,394 Sq.Ft. is used as a parking

area and it is this parking area which is claimed is

sought to be interfered with by the respondents. The

contention of the petitioner is also that on an earlier

occasion, the family members of the defendant had

filed a suit in OS No.188/2005 against the petitioner

seeking for declaration of title and relief of

permanent injunction as regards the very same

property, which suit came to be dismissed vide

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judgment dated 02.06.2014. Thereafter, the said

plaintiff having kept quiet, the other family members

have sought to interfere with the possession of the

plaintiff, requiring title to be ascertained in

O.S.No.199/2022.

6. Sri. Hulappa Heroor, learned counsel for the

Petitioner would submit that;

6.1. The plaintiff in OS No.188/2005 and the

defendants in O.S.No.199/2022 are family

members and as such the finding in the suit in

OS No.188/2005 would be binding on the

defendants.

6.2. His submission is that once an ex-parte order of

temporary injunction is granted, the plaintiff

having placed on record a sale deed in his

favour, the injunction ought to have been

confirmed. Insofar as the Trial Court rejecting

the application, which has been wrongly

confirmed by the First Appellate Court. On the

above ground it is submitted that the above writ

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petition requires to be allowed and the earlier

injunction granted restraining the defendants

from interfering into the possession of the

plaintiff be restored.

7. Sri. Mahadev S. Patil, learned counsel for the

respondents would submit that;

7.1. There is no connection between the plaintiff in

O.S No.188/2005 and the defendants in

O.S.No.199/2022 in as much as the plaintiff in

OS No.188/2005 was Yenkamma W/o late

Hanumanthappa, who upon the death was

represented by her daughter and legal

representative Yenkamma W/o Yenkappa

whereas the defendants in O.S.No.199/2022 are

Yenkamma W/o. Govindappa, Ramesh S/o.

Govindappa and Smt.Radha W/o. Veeresh, the

defendants belonging to Govindappa's family

have nothing to do with Yenkanna and

Hanumanthappa's family and as such, judgment

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in O.S.No.188/2005 would not be binding on

them.

7.2. The defendants have produced necessary

documents establishing their title in the

property, they have produced judgment in RA

No.35/2014, the encumbrance certificate,

photographs evidencing possession, payment of

taxes, E-Khata issued in respect of the said

property and there being a cloud cast on the

title of the property, a bare suit for injunction is

not maintainable. The plaintiff not having

established title over the suit schedule property

the Trial Court has rightly rejected the

application for injunction which has rightly been

confirmed by the First Appeallate Court on the

aforesaid grounds he submits that there is no

requirement for any interference by this court as

regards the order passed by the Trial Court and

the First Appellate Court.

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8. Heard Sri. Huleppa Heroor, learned counsel for the

petitioner and Sri. Mahadev S. Patil, learned counsel

for the respondents. Perused the records.

9. On an earlier occasion when the matter was heard,

there being a serious contention raised by the

counsel for the plaintiff that the plaintiff in

O.S.No.188/2005 and defendant No.1 in OS

No.199/2005 are one and the same. He was called

upon to place on record any document/s to evidence

such fact. However, no documents have been placed

on record except contending that they are one and

the same.

10. The defendant No.1 in O.S.No.199/2022 is

Yenkamma W/o Govindappa therefore ex-facie it

cannot be said that the defendant No.1 in

O.S.No.199/2022 and plaintiff in O.S.No.188/2022

are one and the same, this claim would have to be

established by the plaintiff during the course of the

trial in O.S.No.199/2022 in order to claim that the

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decree in O.S.No.188/2005 would be applicable to

the defendants herein.

11. Insofar as the title and actual possession is

concerned. The plaintiff claiming ownership under a

sale deed as also the defendants claiming ownership

under a gift deed, the defendants having produced

various documents evidencing in the revenue records

in their name and as also making payment of taxes,

there being a cloud on the title of the plaintiff, I am

of the considered opinion that it was but required for

the plaintiff to seek for necessary reliefs in respect of

the title of the property as held by the Hon'ble Apex

Court in Anathula Sudhakar Vs. P. Buchi Reddy1,

more particularly para no. 17 thereof, which has

been reproduced hereunder for easy reference:

17. 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

2008 AIR (SC) 2033 | 2008 INSC 395

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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.

(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

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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.

12. Such reliefs not having been sought for and only a

relief for injunction sought for, it would but be

required for the plaintiff to establish possession over

the property subject matter of this petition. At this

stage there is nothing on record to categorically

establish the possession of the plaintiff while all the

other documents are standing in the name of the

respondents, no prima-facie case having been

established by the plaintiff both as regards the title

as also possession, the original sale deed executed in

favour of the plaintiff by Yenkamma W/o

Hanumanthappa being for 75 ft x 24 ft, which was