Karnataka High Court
Nagaraju vs Smt. Puttalakshmamma on 18 June, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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MSA No. 82 of 2023
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS SECOND APPEAL NO.82 OF 2023 (RO)
BETWEEN:
1. NAGARAJU
S/O LATE SIDDASHETTY
AGED ABOUT 45 YEARS
R/AT DODDARASINAKERE VILLAGE
C.A.KERE HOBLI, MADDUR TALUK
MADNDYA DISTRICT - 574 122.
...APPELLANT
(BY SRI. HEGDE V.S., ADVOCATE)
AND:
1. SMT. PUTTALAKSHMAMMA
DEAD BY LRS.
1(a) SMT. SUSHEELAMMA
Digitally signed
by DEVIKA M D/O. LATE PUTTALAKSHMAMMA
W/O. NARAYANASHETTY
Location: HIGH
COURT OF AGED ABOUT 60 YEARS
KARNATAKA R/AT HUNAGANAHALLI VILLAGE
ATHAGURU HOBLI
MADDUR TALUK
MANDYA DISTRICT-571 455.
1(b) SMT. SHARADAMMA
D/O. LATE PUTTALAKSHMAMMA
AGED ABOUT 57 YEARTS
R/AT HUNAGANAHALLI VILLAGE
ATHAGURU HOBLI
MADDUR TALUK
MANDYA DISTRICT-571 455.
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MSA No. 82 of 2023
HC-KAR
1(c) SMT. RATHNAMMA
D/O LATE PUTTALAKSHMAMMA
W/O. RANGASWAMY
AGED ABOUT 55 YEARS
R/AT KRISHNANAGARA
YARAGANAHALLI 4TH CROSS
MYSORE - 571 419.
1(d) SRI. D.S.MAHADEVU
S/O LATE PUTTALAKSHMAMMA
AGED ABOUT 55 YEARS
1(e) SRI. D.S.MOHAN
S/O LATE PUTTALAKSHMAMMA,
AGED ABOUT 53 YEARS
1(f) SRI. D.S.KRISHNA
S/O LATE PUTTALAKSHMAMMA,
AGED ABOUT 52 YEARS
1(g) SMT. BALANAGAMMA
S/O LATE PUTTALAKSHMAMMA,
AGED ABOUT 53 YEARS
BOTH RESPONDENTS NO.1(d), (e), (f), (g) ARE
RESIDING AT DODDARASINAKERE VILLAGE
C.A.KERE HOBLI, MADDUR TALUK
MANDYA DISTRICT - 571 422.
2. SRI. SIDDARAJU
S/O. MARISHETTY
AGED ABOUT 53 YEARS
3. SOMASHEKHARAIAH
S/O. MARISHETTY
AGED ABOUT 49 YEARS
BOTH RESPONDENTS NO.2 AND 3 ARE
RESIDING AT VAJAMANGALA VILLAGE
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MSA No. 82 of 2023
HC-KAR
VARUNA HOBLI
MYSURU DISTRICT - 570 028.
...RESPONDENTS
(BY SRI. PRAMOD R., ADVOCATE FOR R1(d);
VIDE ORDER DATED 19.09.2023,
SERVICE OF NOTICE TO R1(a to c, e, g) AND
R2 AND R3 IS DISPENSED WITH;
R1(f) IS SERVED AND UNREPRESENTED)
THIS MSA IS FILED UNDER ORDER 43 RULE 1(u) OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 14.02.2023
PASSED IN R.A.NO.23/2018 ON THE FILE OF THE ADDITIONAL
SENIOR CIVIL JUDGE AND JMFC, MADDUR, ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE
DATED 25.04.2018 PASSED IN O.S.NO.440/2011 ON THE
FILE OF THE II ADDITIONAL CIVIL JUDGE AND JMFC, MADDUR,
DECREEING THE SUIT FOR INJUNCTION AND REMANDING THE
MATTER BACK TO THE TRIAL COURT UNDER ORDER XLI RULE
23-A OF CPC FOR RETRIAL AND DISPOSAL AFRESH IN
ACCORDANCE WITH LAW.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
This matter is listed for admission and I have heard
learned counsel for the appellant and learned counsel for
respondent No.1(d).
2. This miscellaneous second appeal is filed against
the order of remand made by the First Appellate Court directing
the appellant herein to seek for appropriate relief by filing
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comprehensive suit for declaration and consequential relief's,
since there is a dispute with regard to the title and if such
application is filed, the Trial Court shall allow the parties to
adduce additional evidence and also directed to give
opportunity to both the parties to lead additional evidence, if
any and thereafter, matter shall be decided afresh after
considering whether recourse of Order XXVI CPC is necessary.
3. Learned counsel for the appellant-plaintiff would
vehemently contend that suit is filed only for bare injunction
contending that suit schedule property is purchased by the
plaintiff and defendants are interfering with possession of the
plaintiff. Hence, entitled for the relief of permanent injunction.
It is also contended that defendant No.1 having no manner of
right, title or interest over the suit schedule property with a
malafide intention to knock off the same, has filed an appeal
before the President, Taluka Panchayath, Maddur in Appeal
No.20/2011-12 challenging the khatha of the suit property
made in the name of the defendant Nos.2 and 3. In the said
appeal, the plaintiff filed application to implead himself as he
was necessary party by virtue of the said sale deed. But, the
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said Taluka Panchayath rejected the application of the plaintiff
and disposed the matter hurriedly to support the illegal claim of
defendant No.1 and khatha of the suit property made in the
name of defendant Nos.2 and 3 has been set aside. But
immediately, the plaintiff preferred the appeal before the Zilla
Panchayath, Mandya in Appeal No.34/2011-12 and the same
was allowed by the Zilla Panchayath, Mandya by its order dated
07.08.2012 and the khatha of the suit property was ordered to
be made in the name of the plaintiff by quashing the order of
the Taluka Panchayath. However, the said order of the Zilla
Panchayath has been challenged by the defendant No.1 before
the High Court of Karnataka and the same is pending for
consideration. Taking disadvantage of the said orders passed
by the President, Taluka Panchayath, Maddur, the defendants
with an intention to create evidence in their favour are making
illegal attempts to put up illegal construction over the suit
property. Hence, filed the suit for the relief of permanent
injunction.
4. In pursuance of the suit summons, the defendant
No.1 appeared and filed the written statement contending that
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defendant No.1 died subsequently and her legal representatives
have been brought on record. But, it is pertinent to note that
the legal representatives of defendant No.1 i.e., defendant
Nos.1(a) to (g) have neither filed their separate written
statement nor they adopted the written statement filed by their
mother deceased defendant No.1. But, contested the suit
basing the contentions taken by their mother defendant No.1 in
their written statement. The defendant No.1 during her lifetime,
filed written statement and she had denied the case of the
plaintiff and further contended that she was in possession and
enjoyment of the suit property. On the northern side of the suit
property, the house of the defendant No.1 is situated and she
along with her sons and daughters were in possession of the
suit property. The defendant Nos.2 and 3 being the residents of
Mysore, they were never in possession of the suit property. the
suit property was originally belonged to the father-in-law of
defendant No.1 and he was in possession of the same. After his
death, his son Subramaiah was in possession of the suit
property. Later on, after the death of the said Subramaiah, his
wife i.e., defendant No.1 was in possession of the suit property.
The defendant No.1 and her children are residing in the
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disputed property in Nos.134/249 and 136/252 and both the
houses and the vacant place with asbestos roofing are one and
the same. As per the panchayath records issued by the Dodda
Arasinakere Paanchayath, the suit property is in the name of
defendant No.1 and the same were stood in the name of her
husband. Even the Taluka Panchayath has ordered to enter the
name of defendant No.1 by setting aside the khatha made in
the name of defendant Nos.2 and 3. Further the defendant
No.1 has also paid kandayam to the panchayath in respect of
the suit property. The defendant No.1, her husband and her
father-in-law were in possession of the suit property. The
plaintiff and the vendors of the plaintiff were never in
possession of the suit property. When the defendant No.1 was
preparing to put up wall on the eastern side and the southern
side of the suit schedule property, the plaintiff has filed this
suit. Hence, prayed the Court to dismiss the suit filed by the
plaintiff.
5. The Trial Court having considered pleadings of the
parties framed the issues whether the plaintiff proves that he is
in possession and enjoyment of the suit property and whether
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the plaintiff has proved alleged interference and allowed the
parties to lead evidence.
6. The plaintiff, in order to prove his case, examined
himself as P.W.1 and got marked the documents as Exs.P1 to
P10 and examined three witnesses as P.Ws.2 to 4. Out of
which, the evidence of the P.W.2 has been got discarded by the
plaintiff by filing a memo and got marked the documents as
Exs.P11 and P12. On the other hand, the defendant No.1(d)
examined himself as D.W.1 and got marked the documents
Exs.D1 to D21 and the defendants also examined one witness
as D.W.2 and closed their side.
7. The Trial Court having considered both oral and
documentary evidence placed on record comes to the
conclusion that possession has been proved by the plaintiff as
on the date of filing of the suit and also though discussed in
detail with regard to the claim made by the defendant, comes
to the conclusion that when revenue entries are challenged, it
amounts to interference to the possession of the plaintiff over
the suit property and discussing the same comes to the
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conclusion that plaintiff has succeeded in proving alleged
interference by the defendants and granted the relief.
8. Being aggrieved by the judgment of the Trial Court,
an appeal is filed before the First Appellate Court in
R.A.No.23/2018. The First Appellate Court having considered
the grounds urged in the appeal memo and also the submission
of respective counsel, formulated the points whether the
findings in the impugned judgment and decree passed in
O.S.No.440/2011 relating to the question of possession and
alleged interference are based on improper appreciation of
evidence on record and are against the settled principles of law
and whether the impugned judgment and decree warrants
interference and also considered the application filed under
Order XLI Rule 27 CPC.
9. The First Appellate Court having considering the
grounds urged in the appeal as well as the additional
documents which have been placed before the Court invoking
Order XLI Rule 27 CPC comes to the conclusion that enable it to
pronounce the judgment for any other substantial cause, the
Court may allow such evidence of additional documents and
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considering the documents which have been produced as
additional evidence, comes to the conclusion that the grounds
which have been contemplated within the ambit of Clause (b)
of Order XLI Rule 27 CPC that there are sufficient grounds to
permit the appellants to adduce additional evidence. Having
answered point No.3 as 'affirmative', discussed in detail the
factual aspects of the case and documents which have been
produced. In paragraph No.24, the First Appellate Court comes
to the conclusion that the questions involved in this suit are not
limited to the deciding of mere question of possession in a suit
for injunction simpliciter contrary to the observation made in
the impugned judgment and also observed that denial of title
and challenge to title of the plaintiff and his vendors by the
defendant No.1 in this case raises a cloud on the title of the
plaintiff and his vendors in respect of the suit property and
relying upon the judgment of the Apex Court in ANATHULA
SUDHAKAR VS. P. BUCHI REDDY reported in (2008) 4 SCC
594, wherein an observation is made that where the plaintiff,
believing that the defendant is only a trespasser or a wrongful
claimant without title, files a mere suit for injunction, and in
such a suit, the defendant discloses in his defence the details of
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the right or title claimed by him, which raise a serious dispute
or cloud over the plaintiff's title, then there is a need for the
plaintiff, to amend the plaint and convert the suit into one for
declaration. Alternatively, he may withdraw the suit for bare
injunction, with permission of the Court to file a comprehensive
suit for declaration and injunction. He may file the suit for
declaration with consequential relief, even after the suit for
injunction is dismissed, where the suit raised only the issue of
possession and not any other issue. The First Appellate Court
having considered the principles laid down in the judgment
referred (supra) comes to the conclusion that there is a cloud
over the title of the plaintiff and when such being the case,
directed to seek appropriate relief modifying the plaint and
remand the matter.
10. Now, the very contention of the learned counsel for
the appellant before this Court is that the First Appellate Court
committed an error and without looking into the evidence
available on record comes to the conclusion that matter
requires deciding of the title involved between the parties, since
the claim made by the defendant is also questioning the title
and the very observation is erroneous. Learned counsel also
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would submit that when the suit is filed only for bare injunction
and simpliciter for injunction, ought not to have considered title
of the parties and the very approach is erroneous. Learned
counsel would vehemently contend that there is no specific
pleading in the written statement regarding claiming of title and
the First Appellate Court for extraneous reasons allowed the
appeal and also allowed the application filed under Order XLI
Rule 27 CPC and directed to amend the plaint and there cannot
be such a direction by the First Appellate Court. Hence, it
requires interference.
11. Per contra, learned counsel for the respondent
No.1(d) would vehemently contend that specific denial of title
was made and claimed that property belongs to defendant No.1
and also contend that the property is an ancestral property
originally stands in the name of the father-in-law of the
defendant No.1 and after the death of father-in-law, the
property records are changed in the name of the defendant
No.1 and the documents on record clearly discloses the same.
Learned counsel for the respondent No.1(d) would vehemently
contend that only based on the sale deed, khatha was
transferred and the same was challenged before the concerned
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authority and khatha changed in favour of the plaintiff was set
aside and the same is questioned before the First Appellate
Court and the First Appellate Court reversed the same and the
same is challenged before the High Court and the matter is
remanded to the concerned authority to take a decision in this
regard. Learned counsel also would vehemently contend that
after remand also, order has been passed in terms of Ex.D21
and the same has not been challenged and it has attained its
finality. Learned counsel would vehemently contend that when
title is disputed and when claim is made in respect of the suit
schedule property by the defendant No.1 and all the properties
even prior to the sale deed exists in the name of the defendant
No.1's father-in-law and subsequent to the death of father-in-
law, all the revenue records are also transferred in the name of
the defendant No.1. When such material is placed, the First
Appellate Court rightly comes to the conclusion that there is
dispute with regard to the title and matter requires to be
decided by the Trial Court having amended the plaint and the
same is to be converted as a suit for declaration. Learned
counsel would vehemently contend referring the judgment of
the Apex Court in ANATHULA SUDHAKAR's case, wherein an
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observation is made that when there is a title dispute and cloud
on the title, matter requires to be considered amending the
plaint and comprehensive suit has to be filed and based on the
said judgment only, the remand is made.
12. Having heard learned counsel for the appellant and
learned counsel for respondent No.1(d), the points that would
arise for consideration in this appeal are:
(1) Whether the First Appellate Court committed an
error that it is necessary to file comprehensive suit
for declaration and consequential relief to
adjudicate the rights of the parties by setting aside
the judgment and decree of the Trial Court.?
(2) Whether the First Appellate Court is right in holding
that the parties have not filed any application
before the Trial Court to make recourse to
provisions under Order XXVI Rule 9 CPC for local
inspection?
(3) What order?
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Point Nos.(1) and (2)
13. Having heard learned counsel for the appellant and
learned counsel for respondent No.1(d) and particularly, it is
not in dispute the plaintiff has sought for the relief of
permanent injunction, based on the sale deed which has been
executed in the year 2011 and also documents which have
been transferred based on the sale deed. It is also not in
dispute that when khatha was changed in the name of the
plaintiff, the same has been challenged by the defendants. It is
also important to note that First Appellate Court having
considered the dispute involved between the parties,
particularly referring the judgment of the Apex Court in
ANATHULA SUDHAKAR's case, extracted the principles in
paragraph No.24 of the judgment. Having perused the plaint
averments, the plaintiff claims the relief of only permanent
injunction and not sought for any relief of declaration. The
defendant, who filed written statement i.e., defendant No.1
specifically contended in paragraph No.8 of the written
statement that it is the defendant No.1 has got every right, title
and interest over the suit schedule property and also in
paragraph No.15, having denied all averments made in the
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plaint, specifically pleaded that the defendant has put up the
patched roofing with asbestos sheet with the help of iron pillars
and stocked cement bricks to put up wall on the eastern side
and southern side only. It is also specifically pleaded in
paragraph No.17 that suit schedule property originally belongs
to father-in-law of the defendant No.1. He was in possession
and it is an ancestral property and subsequent to the death of
father-in-law, property was transferred in the name of the
defendant No.1 and all the family members were residing in the
suit schedule property and claimed the title with regard to the
very suit schedule property and denied the title of the plaintiff
and also title of the vendor.
14. Having considered the pleadings of the plaint as
well as the written statement and also considering the material
available on record and also it is not in dispute with regard to
the transfer of khatha is concerned, appeals are filed before the
differing authorities and Ex.D21 also discloses that even after
remand also, ordered to keep the khatha of the property in the
name of defendant No.1 and when there is a title dispute
between the parties in respect of the very same property and
both of them claim the title in respect of the property and the
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judgment has been applied by the First Appellate Court i.e.,
ANATHULA SUDHAKAR's case is very clear that when there is
a cloud on the title in respect of the suit schedule property, the
comprehensive relief is to avail the remedy by filing a suit for
declaration.
15. It is also important to note that in the judgment of
the First Appellate Court also, while discussing the judgment of
the Apex Court in ANATHULA SUDHAKAR's case, extracted
the observations made in the said judgment, wherein also
specific observation is made where the plaintiff, believing that
the defendant is only a trespasser or a wrongful claimant
without title, files a mere suit for injunction, and in such a suit,
the defendant discloses in his defence the details of the right or
title claimed by him, which raise a serious dispute or cloud over
the plaintiff's title, then there is a need for the plaintiff, to
amend the plaint and convert the suit into one for declaration.
Alternatively, he may withdraw the suit for bare injunction, with
permission of the Court to file a comprehensive suit for
declaration and injunction.
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16. Having considered the principles laid down in the
judgment and when there is a clear dispute with regard to the
title is concerned, since the defendant No.1 also claims title in
respect of the suit schedule property and both of them also
agitated the issue before the concerned authorities also with
regard to the transfer of khatha and ultimately, defendant No.1
succeeded in terms of Ex.D21 that khatha stands in the name
of defendant having allowed the appeal. When such claim is
made and when there is cloud on the title of the property and
rightly relied upon by the judgment in ANATHULA
SUDHAKAR's case and directed the appellant to seek for an
order of comprehensive suit and if plaintiff is not ready to
amend the suit for the comprehensive relief, it is left to him to
file a separate suit as observed in the judgment of the Apex
Court in ANATHULA SUDHAKAR's case seeking the relief of
comprehensive suit. But, the First Appellate Court taken note of
the title dispute between the parties and cloud on the title and
given opportunity to the plaintiff to seek appropriate relief in
the comprehensive suit and when the interest of the plaintiff
was also taken note of by the First Appellate Court and also an
opportunity is given to both the parties to lead their evidence in
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respect of their contentions and matter has to be adjudicated
with regard to the title is concerned, since both of them are
claiming title in respect of the very same property and suit for
simpliciter cannot be a relief.
17. When such being the case, I do not find any error
committed by the First Appellate Court in allowing the
application filed under Order XLI Rule 27 CPC and also giving
an opportunity to both the parties to lead evidence in respect of
their respective claim and direction given to amend the suit for
comprehensive relief is also for the benefit of the plaintiff or
otherwise he has to seek for the relief of comprehensive suit by
filing an independent suit and instead of that, directed to seek
for appropriate relief, that too in consonance with the judgment
of the Apex Court in ANATHULA SUDHAKAR's case. Hence,
the very contention of learned counsel for the appellant that
ANATHULA SUDHAKAR's case is not applicable to the facts of
the case on hand cannot be accepted, since there is title
dispute with regard to the property involved between the
plaintiff and defendant. The defendant No.1 also specifically
claims right in respect of the very same property and the same
is an ancestral property of defendant No.1's father-in-law and
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relies upon the records that prior to the sale deed of the year
2011 also, the property was standing in the name of father-in-
law and subsequent to the death of the father in law, same was
transferred in the name of defendant No.1. When such being
the case, I do not find any error committed by the First
Appellate Court in remanding the matter. Hence, I answer the
point Nos.(1) and (2) framed by this Court accordingly.
Point No.(3)
18. In view of the discussion made above, I pass the
following:
ORDER
(i) The miscellaneous second appeal is
dismissed.
(ii) The Trial Court is directed to dispose of the
matter within a period of nine months.
(iii) The appellant and the respondents are
directed to appear before the Trial Court on
14.07.2025 without expecting any notice
from the Trial Court.
(iv) Both the appellant and respondents and
their respective counsels are directed to
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assist the Trial Court in disposal of the case
within a period of nine months from
14.07.2025.
(v) The Registry is directed to send the records,
forthwith to the concerned Court, to enable
the Court to take up the matter without fail
on 14.07.2025.
(vi) The observations made hereinabove shall
not influence the Trial Court while
considering the matter on merits.
Sd/-
(H.P.SANDESH)
JUDGE
ST
