Karnataka High Court
Smt A Y Sathyavathi vs Sri Dhanush C on 22 July, 2025
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MFA No. 4702 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JULY, 2025
BEFORE
R
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
MISCELLANEOUS FIRST APPEAL NO. 4702 OF 2025 (CPC)
BETWEEN:
1. SMT. A.Y. SATHYAVATHI
W/O KRISHNE GOWDA S.B
AGED ABOUT 52 YEARS
NO.36/1, 13TH MAIN
KENGERI UPANAGARA, KENGERI
BANGALORE SOUTH-560 060
2. SRI. SAGAR GOWDA
S/O KRISHNE GOWDA S.B
AGED ABOUT 37 YEARS
NO.36/1, 13TH MAIN
KENGERI UPANAGARA, KENGERI
BANGALORE SOUTH-560 060
3. SMT. ANUSHKA
Digitally signed W/O LATE SACHIN
by ANJALI M
AGED ABOUT 40 YEARS
Location: High
Court of NO.36/1, 13TH MAIN
Karnataka KENGERI UPANAGARA, KENGERI
BANGALORE SOUTH-560 060
...APPELLANTS
(BY SRI. KASHINATH J.D, ADVOCATE)
AND:
1. SRI. DHANUSH C
S/O CHANDRASHEKAR
AGED ABOUT 19 YEARS
RESIDING AT NO.113
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MFA No. 4702 of 2025
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4TH CROSS, AGB LAYOUT
SRIRAMANAGAR, MAHALAKSHMIPURAM
BENGALURU-560 086
2. SRI. ASHISH V
S/O V .MANJUNATH
AGED ABOUT 29 UYEARS
RESIDING AT NO.109
VAD MANSION, HONNEGARADA ROAD
KARISHMA HILLS, BEHIND KSYT COLLEGE
GUBBALALA, SUBRAMANYAPURA POST
BENGALURU-560 061
...RESPONDENTS
(BY SRI. ARUN SHYAM, SENIOR COUNSEL FOR
SRI. YOGENDRA H, ADVOCATE FOR C/R1 & R2)
THIS MFA IS FILED U/O 43 RULE 1(r) OF CPC, AGAINST
THE ORDER DATED 17.06.2025 PASSED ON I.A.NO.1 IN
OS.NO.6934/2024 ON THE FILE OF THE XXIX ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-30),
ALLOWING THE I.A.NO.1 FILED UNDER ORDER 39 RULE 1 AND
2 OF CPC.
THIS MFA HAVING BEEN RESERVED FOR JUDGMENT,
COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT,
DELIVERED/PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
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MFA No. 4702 of 2025
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CAV JUDGMENT
(PER: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR)
This Misc.Fist appeal has been filed by the appellants
challenging the order dated 17.06.2025 passed by the 29th
Additional City Civil and Sessions Judge, Bengaluru (CCH
No.30) in OS No.6934/2024 whereby, the trial Court
allowed I.A. No.1 filed under Order 39 Rule 1 and 2 of CPC
granting an interim injunction restraining the appellants
from interfering with the peaceful and enjoyment of the
suit schedule property by the respondents.
2. The appellants have contended that, the trial
Court failed to consider materials records and erroneously
granted the injunction despite serious disputes over title
and the existence of acquisition proceedings concerning
the land acquisition initiated by the Bengaluru
Development Authority (BDA).
3. The subject matter of the suit is site No.23
formed in Sy.No.36/1 of Vaddarapalya Village, Bengaluru
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North Taluk. The respondents claimed to have acquired
the said site under registered Sale Deed dated 4.7.2024
from the legal heirs of one Sri H.S.Puttamadaiah. The
vendor in turn, had allegedly purchased the site from one
Ramanna in the year 1991. It is asserted that, Ramanna
had the authority to sell the land through a General Power
of Attorney said to have been executed by the 1st
appellant - Smt.A.Y.Sathyavathi. Based on this lineage of
title, the respondents claim lawful ownership and
uninterrupted possession which according to them, is
evidenced by mutation entries, property tax receipts, and
other civic documentation. They claim to have been in
open, peaceful and continuous possession for many years
without obstruction.
4. The appellants deny the respondent's claim and
assert that the power of attorney relied upon is fabricated
and was never executed by the first appellant. It is their
case that no valid transfer ever took place and that the
respondents claim is an outcome of illegal and fictitious
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documentation. They further contend that, the entire
extent of land comprised in Sy.No.36/1 was notified for
acquisition by the Bengaluru Development Authority
between 1989 and 1994 and respondent's claim cannot
stand in the face of such acquisition. They also submit
that, no valid layout was ever sanctioned in the said
survey no. and therefore, any site carved out therein is
illegal and non-existent in the eyes of law. The appellant's
main contention is that, BDA has taken steps for
acquisition and they have independently approached this
Court by way of writ petitions challenging the said
proceedings which are currently pending adjudication.
5. The learned trial Court, after considering the
documents and arguments held that the respondents had
established a prima facie case for grant of temporary
injunction. The trial Court observed that, the registered
sale deed coupled with the khatha extract, tax receipts
and revenue documents, lent considerable weight to the
respondent's claim of possession. It further noted that, the
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appellants had not produced convincing evidence to
dislodge the respondent's documentary chain or to
establish that the BDA had ever taken physical possession
of the land. The trial Court found that, the respondents
were in settled possession and that their possession was
lawful unless displaced by lawful means. It also held that,
the balance of convenience favoured the respondents and
that denial of injunction would result in irreparable injury.
Consequently, it restrained the appellants from interfering
with the respondent's possession until the final
adjudication of the suit.
6. Before this Court, the learned counsel for the
appellants, reiterates that, the trial Court failed to
appreciate that the respondent's claim rests entirely on a
questionable power of attorney, the validity of which
remains unproven. It is contended that, "fraud vitiates
everything", and that the alleged foundational transaction
of 1991 is void ab initio. He further contends that, the
doctrine of "Nemo dat quod non habet" is a Latin legal
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maxim meaning "no one gives what he doesn't have"
squarely applies as Ramana being unauthorized, could not
have transferred any valid title to H.S.Puttamadaiah, much
less to the respondents. He further asserts that, the entire
case of the respondents must fall like house of cards, and
that a suit for bare injunction without establishing clear
title, is not maintainable, particularly when the title itself is
in serious dispute. In support of this submission, the
learned counsel for the appellants places reliance on the
judgment of Hon'ble Apex Court in Anathula Sudhakar
v. P. Buchi Reddy (dead) by LRs, reported in (2008) 4
SCC 594. The Hon'ble Apex Court in Para.13 and
para.13.2 have observed that:
" 13. 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.
13.2. 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
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in addition, if necessary, an injunction. A
person out of possession, cannot seek the relief
of injunction simpliciter, without claiming the
relief of possession".
7. He submits that, when the title of the
respondents itself is disputed then, the respondent -
plaintiff ought to have filed a suit for declaration. The
schedule property is a vacant site which is not physically
possessed and he submits that, in such cases, the
principle is that, possession follows title as property is a
vacant land. It is appellants who are in possession of the
property and not respondents. Thus, he submits to allow
this appeal and set aside the impugned order.
8. On the other hand, Sri Arun Shyam, learned
Sr.Counsel for respondents would contend that,
possession when established with cogent documentary
evidence deserves to be protected even in the absence of
perfected title, especially where the possession is not
clandestine but, is open and traceable to registered
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documents. He would further contend that, the BDA has
not taken possession nor has it passed any orders
nullifying the private transactions. The respondents assert
that they are bona fide purchasers for value in settled
possession and cannot be dispossessed without recourse
to law. Learned Sr.Counsel also relies upon the same
judgment and submits that, the Hon'ble Apex Court while
answering reference question No.1 has laid down certain
law with regard to the general principles as to when a
mere suit for permanent injunction lie and when it is
necessary to file a suit for declaration and/or possession
with injunction as a consequential relief. According to his
submission, when the plaintiff has clear title supported by
documents, if a trespasser without any claim to title or an
interloper without any apparent title merely denies the
plaintiff's title it does not amount to raising a cloud over
the title of the plaintiff and it will not be necessary for the
plaintiff to sue for declaration and a suit for injunction may
be sufficient. He relied upon the observations of the
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Hon'ble Apex Court so stated in Para.14 of the said
judgment reported in the aforesaid Supreme Court case.
He submits that as the appellants are not definite about
their property though the appellants deny the title of the
respondents, in view of the facts and circumstances of this
case, the suit so filed by plaintiff-respondents for
permanent injunction simpliciter is maintainable.
9. On a meticulous perusal of the records and
having given my anxious consideration to the facts of the
case, I am of considered opinion that, the trial Court's
order does not suffer from any legal infirmity or perversity
that would justify interference in an appellate forum. It is
a well established principle that, possession, even if not
rooted in absolute title, is none-the-less a right in itself.
The maxim "possessio civililr modo adhibita jus
possessonis parit' recognizes that, possession lawfully
obtained must be protected against unlawful interference.
This Court as well as Hon'ble Apex Courts have
consistently held that even a person in possession without
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title is entitled to protect his possession against the whole
world except the rightful owner. In the present case, the
respondents have not claimed adverse possession but,
have relied upon a series of registered transaction and
documentary evidence to establish both their possession
and its lawful origin.
10. The argument of the counsel for the appellants
that the title is under cloud and therefore, an injunction
should not be granted cannot be accepted without
reservation in every case. The principle that "where title is
seriously disputed, a suit for bare injunction does not lie"
must be applied with caution. It is not an inflexible rule
but, one of prudence and context. In the present case, the
respondent's possession is not in doubt. They have
produced documents to show not only possession but also
their continuous treatment for the land as owners for civic
purposes. Therefore, the observations of the Apex Court
with regard to grant of injunction as stated in para.11 and
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14 of the judgments supra can very well be applied to the
present facts of the case made out by the respondents.
11. At this stage the said principles and
observations are squarely applicable to the case of the
plaintiffs. The appellants, on the contrary have failed to
show that they are in possession or that they have taken
steps to assert their title except for relying on the
pendency of writ petitions. They have not filed any
separate suit for declaration. The law is that, Civil Court
assists those who are vigilant and not those who sleep on
their right - is relevant in this case as per the popular
maxim " "Vigilantibus non dormientibus jura subveniunt" is
a Latin legal maxim that translates to, the law assists
those who are vigilant, not those who sleep on their rights.
The respondents have acted upon their document and
protected their possessions, the appellants however, have
not established superior right that displaces the
respondent's possession.
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12. The reliance placed on the BDA acquisition
notification is not conclusive. The BDA has not been made
a party to the present proceedings, nor has any material
been placed to show that, the BDA has taken over
possession or has cancelled the sale transactions. There is
no document before this Court to suggest that
compensation has been paid or possession has been
taken. In the absence of actual resting and physical
possession, the acquisition proceedings by themselves
cannot be used to defeat the respondent's claim of current
possession. It is trite law that, until the Government or
acquiring body lawfully assumes possession, the land
continues to vest in the original holder. The mere
pendency of writ petitions is also not sufficient to deny
interim protection to the party in possession especially
where no stay or restraint order is in operation.
13. The balance of convenience clearly lies in favour
of the respondents. If the injunction is vacated, the
respondents are likely to suffer irreparable loss and injury
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and particularly considering their documented position and
apparent residential or investment nature of the property.
On the contrary appellants have failed to show what
prejudice they would suffer if the injunction is continued
pending final determination. The "Ubi jus ibi remedium" is
a Latin legal maxim that mandates that "where there is a
right, there is a remedy." In the facts of the present case,
respondent's possessive rights warrant interim protection
and the trial Court's reasoning to that effect is well
founded and just.
14. This Court is, therefore, of the considered
opinion that, the learned trial Court exercised its discretion
judiciously upon a correct appreciation of facts and law. No
exceptional circumstance or manifest injustice is
demonstrated to warrant interference in this appeal. The
order impugned does not violate any settled principle nor
does it result in failure of justice. The grant of temporary
injunction in the facts and circumstances of the case is
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both equitable and legally sustainable. Resultantly, the
following:
ORDER
(i) The appeal is dismissed.
(ii) The order dated 17.6.2025 passed in OS
No.6934/2024 by the 29th Addl.City Civil
and Sessions Judge, Bengaluru, is
affirmed.
(iii) Under the circumstances, no order as to
costs.
The observations made herein are confined to the
adjudication of the interlocutory application and shall not
influence the merits of the suit which shall be decided
independency in accordance with law.
Sd/-
(RAMACHANDRA D. HUDDAR)
JUDGE
