(Jr.Dn.), Malavalli, in OS no.387/89, this appeal is filed.
2. Sri CM Nagabhushana, learned counsel appearing
Columns no.9 and 12 of RTCs etc.
3. In plaint, it was stated suit properties were
husband-plaintiff no.1, in year 1958. Thereafter plaintiff no.1
Hypothecation dated 18.12.1958. And in year 1960, plaintiff
Malavalli ('TMC', for short) for Rs.3,135/-. It was stated, entire
4. It was stated RA no.91/1961-62 filed before
confirmation of sale in favour of TMC. On remand, DC
sale was not registered. Moreover, plaintiffs were not made
parties. Inspite of above, plaintiffs continued in possession of
suit properties. In year 1964, entries in Column no.18 of Index
of Land came to be changed in favour of plaintiff no.2.
regularly. And on 23.03.1983, when Excise Commissioner
5. Further, TMC had no power or authority to
participate in auction. Therefore, participation merely on basis
violation of Mysore Municipalities Act and contrary to law. In
would be without authority of law. It was stated, letter by
possession of property. It was stated after 05.08.1965, there
6. Thereafter, writ petition was filed before this Court
appropriate action would be taken. But, until 1985, no action
was taken. Due to political rivalry, MLA began acting hostile to
directions to TMC and Revenue Officials to take action. In
Tahsildar to take action. Only then, TMC filed application for
mutation in RoRs. But, Tahsildar issued endorsement of refusal.
Karnataka Land Revenue Act, 1964 ('KLR' for short).
7. Fact that TMC was aware of names of plaintiff no.1
correspondence, but no action was taken. And in challenge
as it was without authorization from Chief Officer. Moreover,
Sec.136 (3) of KLR Act. TMC did not claim possession was
handed over to it. Consequently, order of DC was nullity and
without jurisdiction. It was stated entry in Col.no.9 in RoR
take possession of suit property. Therefore, suit was filed.
8. On service of suit summons, defendants no.1 and 2
delivered to TMC on 26.06.1961. Plaintiffs had not challenged
same. It was stated, amongst various writ petitions filed by
plaintiffs. Thus, plaintiffs had no right over suit properties and
sought dismissal of suit.
9. In its written statement, TMC admitted suit
Government. It claimed, on failure to pay Excise arrears, they
which TMC as highest bidder, purchased them. Auction sale was
no.64/1959 on 20.06.1961. Since then, TMC was in possession
and enjoyment of suit properties. Thus, plaintiffs had no right
10. It was stated, WP no.9439/1978 filed by one
of on 21.11.1979. As plaintiff was party to it, he was aware of
proceedings. In said petition, this Court noted admission by
suit property, which was rejected. As rejection was not
challenged, it would bind plaintiffs. Having acquiesced to above
proceedings, filing of suit was without locus standi. It was
collusion with defendant no.2. And on 20.01.1987, in RA (REV)
TMC as owner of suit properties. And though plaintiff
06.02.1987. It was stated, plaintiff had made also allegations
against Spl.DC in suit, but without impleading him. Non-
impleading was fatal. Apart from above, failure to comply with
short), would also be fatal and sought its dismissal.
11. Based on pleadings, trial Court framed following
7. Whether there is cause of action for the suit?
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8. Whether the defendants no.1 and 2 prove that the
suit is barred by law of limitation?
9. Whether the plaintiffs are entitled for the relief of
declaration of title?
10. Whether the plaintiffs are entitled for the relief of
permanent injunction?
11. Whether the plaintiffs are entitled to have their
names entered into Col.No.9 and 12 of R.T.C. in
respect of said schedule properties?
12. What decree or order?
12. In trial, plaintiffs no.1 to 3 and two others deposed
as PWs.1 to 5 and got marked Exs.P1 - Ex.P53, while an official
of TMC deposed as DW.1 and got marked Exs.D1 to Ex.D21.
13. In meanwhile, plaintiffs filed memo restricting suit
only for relief of permanent injunction. Taking note of same and
on consideration, trial Court answered issues no.3 and 10 in
negative and issue no.12 by dismissing suit, by treating other
issues as abandoned.
14. Aggrieved plaintiff no.2 filed RA 10/2008 on various
grounds. Based on same, first appellate Court framed following
points:
1. Whether the plaintiffs prove that, they are in
possession of the suit schedule property?
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2. Whether the plaintiffs proves that, they are entitle
for the relief of Permanent Injunction, as prayed for
in the plaint?
3. Whether Appellants/Plaintiffs have made out
grounds to interfere in the Judgment and Decree
passed by the Trial Court in OS no.387/1989 dated
17.04.2008?
4. What order?
15. On consideration, it answered points no.1 to 3 in
negative and point no.4 by dismissing appeal. Aggrieved
thereby, plaintiff no.2 was in appeal.
16. It was submitted plaintiffs were in possession and
enjoyment of suit properties. Though initially suit was filed for
declaration of title, for permanent injunction and for direction
to revenue authorities to mutate name of plaintiffs in RoRs,
since plaintiffs' title was not disputed, relief of declaration was
not pressed.
17. It was submitted suit properties originally belonged
to mother of plaintiffs no.2 and 3, who transferred them to
plaintiff no.1 in 1958. Thereafter on 18.12.1958, plaintiff no.1
executed Hypothecation Deed in favour of Excise Department.
Defendants claimed for failure to pay dues, suit properties were
bought for sale in public auction on 29.11.1960, wherein TMC
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bid and purchased them for Rs.3,135/-. It was contended
participation by TMC was without sanction mandated under
Section 38 (3) (b) and (c) of Code and void ab initio.
Consequently, no title passed.
18. It was submitted Section 97 of Code, merely
enables superior holder to apply to DC for assistance in
recovery of arrears in manner prescribed in Chapter-XI of
Code. And on filing of application, DC was to cause service of
notice on owner and hold summary enquiry for rendering
assistance. And if it appeared to DC that claim was
complicated, assistance could be refused or extended only to
extent of assessment fixed on said land.
19. Further, Rule 3 (2) of Mysore Land Revenue Rules
('Rules', for short) mandated sale by auction not below upset
price fixed by AC. It was submitted Rule 98 of Rules, stipulated
sale of property by DC only where value exceeded Rs.2000/-;
Rule 99 mandated sale to be held on day named in
proclamation and continued day-to-day, while Rule 99 (b)
provided for fixation of upset price by DC. It was submitted
such procedure was not complied nor material produced to
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show confirmation of sale. It was submitted, even assuming for
sake of argument that sale and its confirmation were valid,
then as mandated under Section 187 of Code, DC was required
to put purchaser in possession, get name entered in revenue
records and grant certificate to that effect. But, DC neither put
TMC in possession nor got its name entered in revenue records.
Even, TMC failed to establish its possession.
20. On other hand, after death of plaintiff no.1, names
of plaintiffs no.2 and 3 were mutated, establishing their
possession. And though TMC pleaded defendant no.2 had
delivered possession of suit properties as per Ex.D2, as
admitted by DW.1, Ex.D2 was prepared without reference to
any other record, did not bear seal of TMC or mentioned any
number. It was submitted, Section 187 of Code does not
empower Tahsildar to deliver possession and when provision
provided specific procedure for sale and delivery of possession,
in order to be lawful, it should be done in that manner or not at
all and relied on ratio in Babu Verghese v. Bar Council of
Kerala, reported in (1999) 3 SCC 422 as follows:
"31. It is the basic principle of law long settled
that if the manner of doing a particular act is
prescribed under any statute, the act must be
done in that manner or not at all. The origin of
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this rule is traceable to the decision
in Taylor v. Taylor [(1875) 1 Ch D 426: 45 LJCh
373] which was followed by Lord Roche in Nazir
Ahmad v. King Emperor [(1936) 63 IA 372: AIR
1936 PC 253] who stated as under:
"Where a power is given to do a certain
thing in a certain way, the thing must be
done in that way or not at all."
32. This rule has since been approved by this
Court in Rao Shiv Bahadur Singh v. State of
V.P. [AIR 1954 SC 322: 1954 SCR 1098] and
again in Deep Chand v. State of Rajasthan [AIR
1961 SC 1527: (1962) 1 SCR 662]. These cases
were considered by a three-Judge Bench of this
Court in State of U.P. v. Singhara Singh [AIR
1964 SC 358: (1964) 1 SCWR 57] and the rule
laid down in Nazir Ahmad case [(1936) 63 IA
372: AIR 1936 PC 253] was again upheld. This
rule has since been applied to the exercise of
jurisdiction by courts and has also been
recognised as a salutary principle of
administrative law."
(emphasis supplied)
21. It was submitted, non-consideration of admission
by DW1, while answering contentious issue no.3 and point no.1
rendered findings by both Courts gravely erroneous and liable
for interference. Further, both Courts had not considered that
Ex.P44 would establish plaintiff's lawful possession over suit
properties and TMC's claim about its possession was without
any acceptable evidence. Ex.P45 was letter written by TMC to
DC seeking possession of suit property and change of khata in
its favour. It also contains admission that plaintiff no.1 had got
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khata (Bagarhukum) in his children's name and that they were
in unlawful possession. Apart from above, plaintiffs had sought
information about arrears of Excise Duty due and payable and
for return of property. Said letter was erroneously interpreted
by both Courts, instead of as simple letter for release of
property from mortgage in favour of Excise department, a
letter written by plaintiff no.1 for delivery of possession.
22. It was submitted both Courts ignored that Ex.P38 -
order passed in WP no.9439/1978 would bind TMC, as it was
party to it. And though contended by TMC that Ex.P37 - order
of DC dated 09.08.1965 indicated delivery of possession to
TMC, it had not initiated proceedings for dispossession of
plaintiffs from suit properties.
23. Thus, there was no documentary evidence to show
TMC had taken possession of suit properties following
procedure under Section 187 of Code, except Ex.D2, which
according to DW1 was a created document. Said evidence
supported plaintiffs' case. Contrary to it, both Courts
erroneously held TMC was in possession, which were wholly
unsustainable in law. Both Courts also erred in ignoring impute
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of Ex.P36 - letter by President of TMC to DC about failure to
mutate name of TMC and delivery of possession, resulted in
miscarriage of justice. It was submitted both Courts had not
properly considered Form-V and VI and other material
documents produced by plaintiffs, which would render
concurrent findings against plaintiff contrary to material on
record.
24. It was submitted, subject of Ex.D4 letter dated
04.02.1987 by defendant no.2 to TMC was delivery of
possession of suit properties to TMC indicating TMC was not in
possession. Further, defendant no.2 exceeding jurisdiction in
mutation of records in name of TMC, permission granted to
produce records to get police help for putting up fence around
suit properties, demonstrated collusive acts of defendants no.1
to 3. Even said fact was not appreciated by both Courts.
25. It was submitted, DW.1 admitted in cross-
examination that Exs.P4 to P30 - RoRs were not standing in
name of TMC, but in name of late plaintiff no.1. Same would be
admission about lawful possession of plaintiffs over suit
properties. On contrary, as per Ex.P44 and P45, TMC had
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sought possession of suit properties from DC. Such being case,
change of entries in columns no.9 and 12 of RoRs in respect of
suit properties would be illegal and demonstrate that TMC was
using political pressure and got created documents in collusion
with revenue authorities.
26. It was further submitted rejection of application
filed under Order XXII Rule-3 of CPC filed by plaintiff no.2 to
bring LRs of plaintiff no.1 on record was without proper
consideration and resulted in miscarriage of justice.
27. It was thus submitted non-consideration of positive
and substantive evidence in favour of plaintiff about failure by
defendants to establish auction sale in compliance with
mandatory provisions of Section 187 of Code read with 98 and
100 of Rules resulted in findings contrary to material on record.
It was submitted, as material established plaintiffs being in
possession continuously for more than 49 years, any semblance
of right or interest of TMC, stood extinguished.
28. It was submitted first appellate Court gravely erred
in not referring to case law on which strong reliance was placed
by plaintiffs. After extraction, they were brushed aside in one
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assertion that they would not apply, would amount to failure by
first appellate Court to exercise its powers under Section 96 of
CPC. On said ground, sought for answering substantial question
of law in favour of plaintiff and allow appeal.
29. In support of submissions, learned Counsel relied
on following decisions:
Citations Proposition of Law
1. Hafazat Hussain v. Abdul That, rule of non-interference
Majeed, reported in (2001) 7 against concurrent findings
SCC 189 and S. Jagadish v. under Section 100 of CPC is
Dr.S. Kumaraswamy & Ors., not absolute and intervention
reported in ILR 2008 KAR permissible when judgment
87. of both Courts vitiated due to
perversity,based on surmises
or misreading of material on
record.
2. Kishen Lal v. Ganga Ram & Innocent purchaser for value
Anr., reported in (1890) 13 without notice allowed
All 28. preference where nature of
encumbrance set up is
merely charge on property
not amounting to mortgage.
3. Shiralakoppa Town That, transfer of property by
Municipality v. Shree purchaser in auction sale
Sharda Rice Mills & Ors. valid on issuance of
(ESA no.76/1977 disposed of certificate and not mere
on 15.10.1981). holding of auction sale or its
confirmation.
4. Shiva Martand Tapkire and Acceptance of bid at auction
Anr. v. Arun Nankchand sale does not result in
Khatri & Anr., reported in transfer of title to bidder. It
AIR 1969 Bombay 93. only creates certain rights
and obligations, which could
be set-aside on ground of
incompetency of minor to
enter into contract.
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5. Ramegowda dead by his That, person in peaceful
Lrs. v. M.Varadappa Naidu possession cannot be
dead by his LRs. & Anr., dispossessed, without due
reported in 2004 (1) SCC process of law.
769; Puran Singh and Ors.
v. State of Punjab, reported
in 1975 (4) SCC 518 and
Patil Exhibitors (P) Ltd. v.
Corporation of the City of
Bangalore, reported in 1985
SCC OnLine Kar 329
6. Poona Ram v. Moti Ram & Person who asserts
Ors., reported in 2019 (11) possessory title over property
SCC 309. has to show that he is in
settled or established
possession. Merely stray or
intermittent acts of trespass
would not hold good against
true owner.
7. Esjaypee Impex (P) Ltd. v. Section 89 (2) and (4) of
Canara Bank, reported in Indian Registration Act,
(2021) 11 SCC 537 1908, mandates Certificate of
Sale of immovable properties
to be sent to jurisdictional
Registering Officer.
8. Cosmos Coop. Bank Ltd. v. Though transaction evidenced
Central Bank of India, by prior unregistered
reported in 2025 SCC OnLine document is valid in itself,
SC 352 yet any title or interest
created by it is liable to be
defeated under rule of
priority by a valid later and
legal sale or mortgage
evidenced by a duly
registered document.
9. Ma Hnin Yeik & Ors. v. If mortgagor defaults,
KARK Chettyar Firm, mortgagee has right to cause
reported in AIR 1939 mortgaged property to be
Rangoon 321. sold, but not without
intervention of Court. Sale
without intervention of Court
would be invalid
10 Corporation of Calcutta v. In order to satisfy
Promotho Nath Mullick, requirement of Section 78 of
reported in AIR 1915 Evidence Act, mere
Calcutta 428. production of copy of
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resolution of Municipality
would not suffice.
11 State of Karnataka & Anr. v. That, Sections 24 and 25 of
Karnataka Appellate Karnataka Land Revenue Act,
Tribunal, Bengaluru & Anr., 1964, empower Asst.
reported in 1995 (5) KLJ Commissioner to review or
305. recall any order if it is
palpably wrong or suffers
from error apparent on face
of record.
30. On other hand, Sri Sharanjith Shetty K.M., learned
counsel appearing for TMC opposed appeal. At outset, it was
submitted, plaintiffs admitted Ex.P3 - mortgage of suit
properties in favour of defendant no.2, with specific provision
that on failure to pay mortgage amount, suit properties would
be auctioned for recovery of due amount. It was submitted suit
properties were auctioned by defendants no.1 and 2, in which
TMC was successful bidder and properties were allotted to it.
Thereafter, TMC received sales certificate and has been in
possession. It was submitted, fact that auction was not
challenged, stood testimony about loss of right over suit
properties by plaintiffs. Therefore, plaintiffs would have no
claim of any right or possession over same.
31. It was further submitted, initially suit filed was for
reliefs of declaration and permanent injunction, but later
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confined only for permanent injunction by filing memo. It was
submitted, plaintiffs' contention that TMC had admitted title
and therefore suit was confined for relief of permanent
injunction was without any basis. In fact, when plaintiffs' title is
in cloud, without prayer for declaration of title, suit for
permanent injunction would not be maintainable. It was
submitted even plaintiff's claim of being in possession was
without any basis. Except mere assertion, plaintiff had not
produced any material or examined witness to establish
possession as on date of suit. Considering same, both Courts
had rightly dismissed suit.
32. It was submitted in a suit for permanent injunction,
contentions about legality/validity of auction could not be gone
into. Moreso, as plaintiff had not challenged auction. It was
submitted, though TMC received possession on date of auction
and was in continuous possession since then, suit for bare
injunction filed after lapse of more than 27 years was not
maintainable.
33. It was submitted mutation of names of plaintiffs in
revenue records was in collusion with revenue officials and
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rightly set-aside in appeal by DC, directing defendant no.2 to
mutate name of TMC. It was submitted, though said order was
challenged in WP no.1610/1987, disposed on 06.02.1987
reserving liberty to plaintiffs to exhaust alternative remedies.
Said order attained finality. In view of same, suit was not
maintainable.
34. Relying decision of Hon'ble Supreme Court in
Padhiyar Prahladji Chenaji v. Maniben Jagmalbhai,
reported in (2022) 12 SCC 128, it was submitted, main reliefs
sought by plaintiff in suit was for declaration and permanent
injunction against disturbing plaintiff's possession, which was
consequential relief. When, plaintiff abandoned prayer for
declaration of title over suit properties, suit for permanent
injunction which was consequential relief, prayer for permanent
injunction must fail. On above grounds sought dismissal of
appeal.
35. Sri Milind Dange, learned AGA for defendants no.1
and 2 also opposed appeal. At outset, it was submitted suit for
permanent injunction was filed without any documentary
evidence to establish lawful possession. On consideration, both
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Courts concurrently held plaintiff had failed to establish lawful
possession over suit properties. It was submitted, concurrent
findings could not be interfered in second appeal.
36. It was submitted Ex.P3, would reveal specific recital
that in event of default of payment of money to State under
contract, State would be at liberty to cause mortgaged property
to be sold in order to satisfy claims which were due and in
event of excess amount received, same to be paid to
mortgagor personally. It was submitted admitted mortgage and
plaintiffs being legal heirs neither have right or interest to deny
sale of property for due arisen. It was further submitted,
plaintiffs' suit for permanent injunction would not be
maintainable in view of Section 69 (3) of Transfer of Property
Act, 1882 ('TP Act', for short) which read as under:
"69. Power of sale when valid.-- A mortgagee, or any
person acting on his behalf, shall, subject to the
provisions of this section, have power to sell or
concur in selling the mortgaged property, or any
part thereof, in default of the payment of
mortgage-money, without the intervention of the
Court, in the following cases and in no others,
namely:--
.........
.........
(3) When a sale has been made in professed exercise
of such a power, the title of the purchaser shall not
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be impeachable on the ground that no case had
arisen to authorise the sale, or that due notice was
not given, or that the power was otherwise
improperly or irregularly exercised; but any person
damnified by an unauthorised or improper or
irregular exercise of the power shall have his
remedy in damages against the person exercising
the power. ... ... ..."
37. In view of above provision, plaintiffs' contention
against invalidity of irregularity of auction proceedings etc
would not hold and only remedy to file suit for damages. Thus
filing of instant suit for bare injunction would not be
maintainable.
38. It was submitted since there was no dispute about
mortgage, in absence of any efforts by mortgager or his
successors to redeem mortgage, present suit by plaintiffs would
be without basis. It was submitted even Rule 193 (A) of Code
states, mortgagor has to seek redemption. As admittedly
plaintiffs had not sought for redemption, taking note of implied
clause in Ex.P3 and excising powers under provisions of law,
auction was held and suit properties sold to TMC.
39. It was submitted Section 21 and 25 of Excise Act,
1901, provide powers on Excise Authorities to levy dues and
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Section 28 power for sale of mortgaged property. It was
submitted Rules 187 to 191 of Rules, provide for general
sale and Rule 197 (2) mandates sale of mortgage
property and would clearly establish that with due
procedure, auction was held. Thus there was compliance with
provisions of law. And after auction, possession handed over to
TMC, WP no.9439/1978 (Ex.P38) was filed by Puttamadaiah
and others against defendants and plaintiffs herein seeking
eviction of plaintiff from suit properties. While disposing said
petition, this Court observed direction issued by DC to
defendant no.2 for change of khata in favour of TMC and fix
boundaries. It also observed submission of TMC that it would
take steps to secure its rights under auction. It was submitted
said submissions/observations were made in presence of
plaintiff no.1, who was duly represented, but had neither
objected to submissions nor whispered about validity of
auction. Having thus, acquiesced in auction, plaintiff cannot
later challenge or seek for invalidation of auction proceedings,
that too in a suit for bare injunction.
40. It was submitted, though possession was handed
over to TMC, alleged resolution dated 08.09.1986 was
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completely forged, fabricated and produced as Ex.P40 only to
grab property of TMC. It was submitted, Ex.P48 and Ex.P49
were Revision Petition and objections filed by TMC for mutation
of its name, plaintiffs had illegally got their names mutated. It
was submitted, on detailed consideration, under order at
Ex.P47, DC directed for change of entries in name of TMC.
Though said order was challenged before this Court in Ex.D20
(WP no.1610/1987), same was withdrawn. It was submitted
above proceedings would indicate defendants had exercising
procedure under law had put suit properties for auction, held
auction and confirmed sale in favour of TMC and handed over
possession to it.
41. It was submitted having failed in earlier litigation,
filing of present suit was only to drag proceedings in frivolous
litigation. In support of his contentions, learned counsel relied
on decision of this Court in case of State of Mysore v.
Dasappa Naidu, reported in 1968 (1) Mys.LJ 69, for
proposition that when rent was due and there was failure to
pay arrears for Government, properties could be sold under
revenue proceedings. He also relied on Division Bench decision
of High Court of Madras in case of M.Shanmugam Chettiar v.
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Manilal J. Sheth and Ors., reported in ILR 1966 Mad. 471
for proposition that auction became effective from date of
auction sale and suit was highly belated.
42. He also relied on decision on Hon'ble Supreme
Court in case of B.Aravind Kumar v. Govt. of India and Ors.
reported in 2007 (5) SCC 745, for proposition that when
property is sold by public auction in pursuance of order of Court
and bid is accepted, sale confirmed by Court in favour of
purchaser, sale becomes absolute and title vest in purchaser.
Sale certificate is issued to purchaser only when sale becomes
absolute. It is well settled when auction purchaser derives title
on confirmation of sale in his favour and sale certificate is
issued evidencing such sale and title, no further deed of
transfer from Court is contemplated or required. On above
grounds learned counsel sought for dismissal of appeal.
43. Heard, learned counsel for parties, perused
impugned judgment and decree and records.
44. This second appeal is by unsuccessful plaintiff in
suit for permanent injunction against concurrent findings. As
per plaintiff, suit properties were hypothecated in favour of
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Excise Department by plaintiff no.1, who failed to pay bid
amount for Arrack License for year 1960. And for which,
defendants' claim to have put suit properties to auction,
wherein they were purchased by TMC and which was put in
possession and its name entered in revenue records. Denying
such auction and claiming to have continued in possession, suit
was filed. In this background, initially, they had sought for
relief of declaration of their title as well as for relief of
permanent/mandatory injunction. On other hand, in its written
statement, defendant no.3 asserted its right over suit
properties as auction purchaser put in possession and its name
appearing in revenue records.
45. As per rival contentions, trial Court framed issues,
with validity of auction as issue no.1. And taking note of memo
filed by plaintiff abandoning relief of declaration and it only
considered/answered issues no.3, 10 and 12 and treated other
issues as abandoned.
46. Admittedly, failure to answer issue no.1 was not
questioned either before first appellate Court or before this
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Court and Appeal is admitted on only substantial question of
law i.e.:
"When the suit property, owned by the appellant
was sold in auction on 29.11.1960, in the absence
of any evidence of handing over and taking
possession of the suit property and when all the
records reveal the appellant's possession, whether
the Courts below were justified in refusing a decree
of injunction"?
47. Contentions urged by plaintiff in this appeal are
firstly that though appeal is by plaintiffs against concurrent
findings, bar against interference with concurrent findings is not
absolute, relying upon ratio in Hafazat Hussain's case
(supra). There cannot be any quarrel about said position in law,
except that interference warrants only if judgments are vitiated
by perversity or based on surmises or due to misreading of
material on record.
48. It is also noted that grounds urged herein namely
that Section 97 of Code mandates issuance of notice, holding of
summary enquiry by DC, failure to fix upset price by AC, non-
conduct of auction by DC even when value of property was
more than 2,000/-, failure of DC to cause name of auction
purchaser entered in RoRs, delivery of possession and grant
Certificate are contentions virtually challenging validity of
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auction proceedings. Even contention that participation of TMC
in auction proceedings was without mandatory sanction would
be supplementary.
49. As noted above, defendants have opposed appeal
primarily on ground that suit for permanent injunction without
declaration of title would not be maintainable, especially, when
TMC was specifically staking claim of title over suit properties
as auction purchaser, put in possession. Defendants also
contend, having abandoned prayer for declaration and trial
Court having treated all issues than issues no.3, 10 and 12 as
abandoned, whether plaintiff could be permitted to urge
contentions against auction sale.
50. Question, whether abandonment of any part of
claim would estopp plaintiff arose for consideration before
Division Bench of this Court in Manjula v. Basalingavva,
reported in 2023 SCC OnLine Kar 1551, wherein specific
point was framed for consideration and answered as follows:
"29. In view of the rival submissions of both the sides,
the points that would arise for our consideration
are:
i) Whether the appellants/defendants 7 to 9
are right in claiming any benefit from
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abandonment of the claim of the plaintiff
against the defendants 5 and 6?
.........
.........
.........
44. Therefore, the argument of the counsel for the
appellants cannot be accepted and defendant nos.
7 to 9 cannot take such benefit. Therefore, point
no. 1 raised supra is answered in the negative
and accordingly it is answered."
(emphasis supplied)
51. In view of above, it has to be held that
abandonment of any part of suit claim does not amount to
rejection of said relief. Said conclusion would not however
foreclose contention of defendants that in present case, a
prayer for declaration of title by plaintiffs or against validity of
auction proceedings was imperative in order for plaintiffs to
substantiate claim for permanent injunction.
52. As noted above, based on plaintiffs' memo, trial
Court held issues other than issues no.3, 10 and 12 as
abandoned i.e. even issue no.1 which was specifically framed
for deciding validity of auction sale held on 29.11.1960, stood
abandoned. Therefore, defendants would be justified in
contending that plaintiff cannot urge contentions about
invalidity of auction proceedings as part of his claim for
permanent injunction by relying upon weakness of defendants'
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case. Hon'ble Supreme Court in case of Nagar Parishad,
Ratnagiri v. Gangaram Narayan Ambekar, reported in
(2020) 7 SCC 275, held that weakness of defendants' case
would not entitle plaintiffs for decree. Therefore, both Courts
were justified in considering plaintiff's case as a suit for bare
injunction.
53. Next ground urged is about perversity of findings.
While passing impugned judgment, trial Court noted PW.1
deposed that suit properties were mortgaged with Government
as security for Excise Contract Bid amount and in proceedings
by Chowdegowda before DC, there was direction to take
possession of suit properties. And when DC called plaintiff no.1
to pay Excise dues, they were cleared and thereafter, President
of TMC had sought refund of bid amount. It also noted, PW.1
alleged sale certificate was not issued to TMC and possession
continued with plaintiffs and in Ex.P38, TMC admitted it was not
in possession. It also noted, PW.1 admitted about suit
properties standing in name of TMC, about plaintiffs' not
challenging order of Spl.DC or auction and admitting that in
1965, he came to know that he was due only Rs.7,000/-. Trial
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Court noted conduct of PW.1 in not clearly admitting or denying
suggestions, but responding with 'he does not remember'.
54. It referred to deposition of PW.2, wherein he stated,
suit properties were purchased by his mother in 1946,
transferred to plaintiff no.1 in 1958 and when TMC began
interfering with possession, they approached High Court and on
its suggestion, filed present suit. It found that deposition of
PW.2 contradicted with Ex.D20 - showing that writ petition was
withdrawn by plaintiffs themselves. It also contradicted with
deposition of PW.1.
55. TC also noted that PWs 3 and 5 were Ex-Presidents
of TMC, wherein PW.3 stated that TMC was never in possession
and suit properties were never auctioned, but admitted in
cross-examination that for recovery of excise dues suit
properties were auctioned. It held deposition of PW.4 would be
irrelevant, as he had only stated that plaintiff had purchased
coconut saplings from him and planted in suit properties, when
their existence was not pleaded.
56. It is also seen, referring to deposition of PW.5,
wherein he stated, plaintiff no.1 was in possession of suit
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properties and they were not auctioned and purchased by TMC,
it held PWs.3 and 5 having been councilors/members of TMC
had chosen to sail with plaintiff without having any knowledge
about auction proceedings. It is seen, trial Court also referred
to evidence led by defendants, wherein Chief Officer of TMC,
deposed as DW.1 and stated that TMC purchased suit
properties in auction as per resolutions passed and sale was
confirmed by order dated 03.07.1961. It opined admissions
elicited about auction conducted by Excise Department,
resolutions passed, date of taking possession and existence of
coconut trees in suit properties would not be relevant as burden
would be on plaintiffs to establish possession and not harp
upon weakness of defendants.
57. At time of arriving at its conclusion, trial Court
noted conduct of plaintiff firstly in abandoning prayer for
declaration of title after conclusion of trial and secondly instead
of clear assertions in plaint employing phrase "it appears that",
to conclude that plaintiff's were uncertain about their case. It
noted, despite purchase of suit properties in auction by TMC on
29.11.1960 and confirmation of sale by DC on 07.03.1961,
plaintiff no.2 had got his name mutated in RoRs, which was
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set-aside by Spl.DC in appeal directing disciplinary proceedings
against concerned Tahsildar, Revenue Inspector, Sheristedar
and Village Accountant. It also noted plaintiffs no.1 and 2 had
challenged order of Spl.DC in WP no.1610/1987, but got it
dismissed as withdrawn with liberty to avail other remedies.
And thereafter, when name of TMC was mutated, they
questioned it before DC in RP no.85/1988, which was dismissed
on 03.08.2001. From above, it concluded that from 1960,
plaintiffs had involved in various litigations with regard to suit
properties which met in dismissal/withdrawal.
58. It observed, in pleadings plaintiffs feigned
ignorance about auction and issuance of sale certificate to TMC,
but admitted same in deposition and also admitted that auction
was never challenged by them. It therefore concluded, instead
of plaintiffs establishing their case on own strength, were
depending on weakness of defendants by relying upon
correspondence/documents which came into existence during
tenure of plaintiff no.1 as councilor of TMC. On above
observations, trial Court concluded that plaintiffs had failed to
establish possession over suit properties and answered issue
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no.3 in negative. Based on said finding, it answered issue no.10
in negative and issue no.12 by dismissing suit.
59. While passing judgment and decree, even first
appellate Court referred to rival pleadings, issues framed, and
grounds urged in appeal and framed points for consideration.
While recording its finding on points no.1 and 2 about plaintiff
establishing possession over suit properties and entitlement for
relief of permanent injunction, it also noted conduct of plaintiffs
earlier seeking for relief of declaration of title, but later
restricting suit only for permanent injunction. It also noted
conduct of plaintiff employment of phrase 'it appears that', was
with intention to feign ignorance about auction proceedings.
60. It noted entries in RoRs in favour of plaintiffs were
challenged by TMC before Spl.DC in appeal. It noted that
during pendency of proceedings before Spl.DC, WP
no.921/1987 was filed for direction to transfer said appeal
proceedings, but as per Ex.D15, said writ petition was
withdrawn. It noted Spl.DC had thereafter allowed appeal
recording finding that plaintiffs had managed to get khata
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changed by using influence and ordered initiation of disciplinary
proceedings against colluding revenue officials.
61. It noted, though plaintiffs no.1 and 2 had
challenged said order in writ petition, same was withdrawn with
liberty to avail other remedies and thereafter filed suit. It also
noted that plaintiffs challenge of mutation of name of TMC in
RoRs ended in dismissal of appeal. It also noted that in WP
no.9439/1978 filed by Puttamadaiah and others, there was
reference to auction of suit properties for recovery of excise
dues, about confirmation of sale and purchase by TMC and
plaintiff no.1 being represented through counsel.
62. In light of above, it referred to deposition of PW.1
wherein, he admitted that suit properties were mortgaged in
favour of Government and contrary to plaintiffs' claim to have
continued in possession, admission about records of suit
properties standing in name of TMC and about failure to have
challenged auction. Referring to deposition of PW.1 about his
tenure as President and Councilor of TMC, later as MLC,
Member of Parliament and Central Minister, who stated that he
became aware about due of Rs.7,000/- in year 1965, as
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admission about knowledge of auction and failure to challenge
same.
63. It noted deposition of plaintiff no.2 as PW.3 that on
interference with possession in 1987, writ petition was filed and
on suggestion therein filing of suit was contrary to Ex.D20.
Thereafter, it noted PW.3 stated that when he was President in
Congress Party, plaintiff no.1 was MLC and since he was due
some amount to Excise Department, suit properties were
auctioned for recovery and about addressing of
correspondence, when he was President of TMC, for refund of
bid amount. It disbelieved his deposition on ground that despite
being President/Councilor of TMC at relevant period, he denied
knowledge of auction.
64. Referring to deposition of PWs.4 and 5, wherein
PW.4 stated plaintiff had purchased coconut plants from him
and planted them in suit properties, when suit did not involve
any issue about existence of coconut trees in suit properties
and PW.5 denying knowledge of auction, as being contrary to
admission by PWs.1 and 2, and indicated collusion with
plaintiff.
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65. It also referred to deposition of Chief Officer of TMC
that suit properties were purchased by TMC in auction and
about confirmation of sale by order dated 03.07.1961, had
withstood cross-examination. Based on above material, it
concluded that at time of auction, plaintiff no.1 was Councilor
of TMC and as such, possibility of plaintiff himself influencing
TMC to purchase suit properties could not be ruled out. It
observed plaintiff no.1 having held influential positions had
managed to drag on matter before various authorities without
challenging auction, that plaintiffs were not sure about their
case and filed suit for bare injunction after failing in their
attempts before various revenue authorities and High Court.
66. It noted that entries in RoR stood in name of TMC
establishing possession of TMC, whereas plaintiffs had not
produced any material to establish their possession.
67. First appellate Court further observed that Ex.P45
contained clear admission about making offer to pay excise
dues and for return of suit properties, which was rejected by
DC, and who got name of TMC entered in RoRs. Thereafter,
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President of TMC had addressed Ex.P36 letter seeking for
refund of bid amount.
68. Based on above observations, first appellate Court
concluded that plaintiffs had admitted hypothecation of suit
properties, default committed in payment, suit properties being
auctioned for recovery thereof, holding of auction and
confirmation of sale, approaching revenue authorities and failed
against entry of name of TMC in RoRs. It noted that challenge
of auction by plaintiffs' neighbor had failed and proceeded to
hold that plaintiffs failed to establish their possession over suit
properties, held points no.1 and 2 in negative and dismissed
Appeal. Thus, finding of both Courts is by referring to material
on record and by assigning reasons.
69. Since it is also contended by plaintiffs that their
claim for permanent injunction was substantiated by
documentary evidence especially Exs.P.36, P.45 and Ex.D2
letters written by TMC to Deputy Commissioner seeking
delivery of possession and mentioning about plaintiff no.1
having got names of his children entered in revenue records
and hence dismissal of plaintiffs' suit would be perverse. To
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appreciate said contention, brief reference to documentary
evidence which is as follows, is felt necessary:
Ex.P1 - Sale deed dated 12.12.1946 showing purchase by
Smt.Gowramma;
Ex.P2 - Deed of transfer dated 25.09.1958 by her in favour
of plaintiff no.1;
Ex.P3 - Deed of mortgage by plaintiff no.1 dated
18.12.1958;
Exs.P4
to P30 - Revenue records, tax paid receipts, patta book,
RTCs and mutation extracts showing suit properties
standing in name of plaintiff no.1;
Ex.P31 - RoR of Sy.no.595/2 for years 1979-80 to 1986-87
showing name of TMC entered in Column no.9 as
well as Column no.12(2) for years 1979-80 to
1982-83;
Ex.P32 - RoR of Sy.no.596 for years 1979-80 to 1986-87
showing name of TMC entered in Column no.9 as
well as Column no.12(2) for years 1986-87;
Ex.P33 - ME no.64/1986-87 for deleting name of plaintiffs
and to enter name of TMC in respect of
Sy.nos.595/2 and 596;
Ex.P34 - MR no.41/1983-84 for transferring entry from MV
Chandrashekar to his brother MV Subramanyam, in
view of clearance of excise dues of Rs.4,400/- on
21.11.1983;
Ex.P35 - MR no.76/1977-78 for removal of name of MV
Chandrashekar and MV Venkatappa in respect of
Sy.nos.595/2 and 596 and to enter name of TMC as
per order of DC dated 21.09.1977;
Ex.P36 - Letter by President of TMC to DC dated
13.11.1963 for refund of sale amount paid by
TMC;
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Said letter specifically mentions that suit
properties were auctioned on 29.11.1960 for
realization of excise arrears from plaintiff
no.1, Executive Officer of TMC bidding under
instructions of Special Officer and purchasing
them, confirmation of sale by DC on
07.03.1961, issuance of direction to handover
properties to TMC, handing over of possession
to TMC on 03.08.1961; as well as non-transfer
of name of TMC in revenue records;
Ex.P37 - Order passed by DC on 09.08.1965 after remand
by Divisional Commissioner reiterating confirmation
of auction sale in favour of TMC, stating that in
auction conducted on 29.11.1960, no bids were
received except by TMC for Rs.3,135/- and said
amount being credited into Taluka Treasury on
01.12.1960 and confirmation of sale once again on
09.08.1965 and directing for delivery of possession
to TMC;
Ex.P38 - Order dated 21.11.1979 passed in
W.P.no.9439/1978;
Ex.P39 - Endorsement by Tahsildar dated 09.02.1995;
Ex.P40 - Resolution of TMC;
Ex.P41 - Endorsement by DC of Excise on application for
issuance of clearance certificate that all dues of
Excise department were received on 28.03.1983;
Ex.P42 - No-Due Endorsement issued by Excise Inspector
dated 04.05.1984 to plaintiff no.1;
Ex.P43 - Resolution by TMC dated 19.05.1986 to prefer
Revenue appeal;
Ex.P44 - Letter by TMC to Secretary, Housing and Urban
Development Department;
Ex.P45 - Letter by President of TMC to DC dated
27.10.1986 requesting for transfer of khata in
respect of suit properties in favour of TMC;
Ex.P46 - Proceedings by Special DC in Revision;
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Ex.P47 - Order passed by Special DC on 20.01.1977 allowing
Revision on ground that attempt by plaintiff no.1 to
get back his property by getting entries in RoRs
changed to his name illegally without notice to TMC
after loosing right in suit properties in auction sale;
Ex.P48 - Appeal Memo;
Ex.P49 - Objections filed by plaintiff no.1;
Ex.P50 - Direction to DC for change of khata of suit
properties in name of TMC;
Ex.P51 - Direction by DC to Tahsildar;
Ex.P52 - Endorsement by Tahsildar dated 22.11.1997;
Ex.P53 - Endorsement by TMC;
70. Likewise documentary evidence of defendants is:
Ex.D1 - Resolution dated 28.11.1960 passed under Section
206(2)(b) of Mysore Town Municipalities Act, 1951
to purchase Sy.nos.595/2 and 596 of Malavalli
village in Revenue auction on 29.11.1960;
Ex.D2 - Property Register Extract showing Executive
Officer taking possession on 03.08.1961;
Ex.D3 - Resolution of TMC;
Ex.D4 - Letter dated 04.02.1987 by Tahsildar to TMC
referring to order passed by Spl.DC in Revision for
entering name of TMC in revenue records and
authorizing taking of police help for fencing suit
properties;
Ex.D5 - ME no.64/1986-87 passed in pursuance of order of
Spl.DC;
Ex.D6 - RoR of Sy.no.595/2 for year 1986-87 showing
mutation of name of TMC;
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Ex.D7 - RoR of Sy.no.596 for year 1986-87 showing
mutation of name of TMC;
Exs.D8,
D10 & D12 - RoR of Sy.no.595/2 for years 1987-88 to 1993-94,
1994-95 to 1997-98 and 1994-95 to 1999-2000
respectively;
Exs.D9,
D11 & D13 - RoR of Sy.no.596 for years 1987-88 to 1993-94,
1994-95 to 1997-98 and 1994-95 to 1999-2000
respectively;
Ex.D14 - Order dated 21.07.1979 in WP no.9439/1978 with
plaintiff no.1 as respondent no.3;
Ex.D15 Order dated 21.01.1987 dismissing WP
no.921/1987 filed by plaintiff no.2 as withdrawn;
Ex.D16 - Order dated 20.01.1987 passed by Spl.DC;
Ex.D17 - Resolution of TMC dated 08.09.1986 referring to
various steps taken by TMC to protect its interests
in suit properties and on that count opposing notice
issued by Government of Karnataka for suspension
of council of TMC and appointment of Administrator
for a period of Six months;
Ex.D18 - Letter by TMC to Tahsildar referring to its purchase
of suit properties in auction its confirmation by DC
and requesting for fixing boundaries of suit
properties;
Ex.D19 - Letter dated 17.02.1987 to TMC;
Ex.D20 - Order dated 06.02.1987 dismissing WP
no.1610/1987 filed by plaintiffs no.1 and 2 as
withdrawn with liberty to avail other remedy;
Ex.D21 - Order dated 03.08.2001 passed by DC dismissing
revision filed by plaintiffs no.1 to 3 against entry of
name of TMC in RoRs;
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71. Exs.P1 and P2 are documents of title in respect of
suit properties and Ex.P3 is deed of mortgage executed by
plaintiff no.1, about which there is no dispute. Exs.P4 to P19
are assessment records of suit properties for years 1957-58 to
1965-66 though these documents bear name of plaintiffs even
for period after auction, Ex.P37 would indicate that
confirmation of auction sale on 07.03.1961 by DC was
challenged before Divisional Commissioner in Appeal, which
was allowed on 29.11.1961 by remanding matter back to DC
and who passed fresh order on 09.08.1965 confirming sale. In
view of above, plaintiffs would not be entitled to rely on entries
in RoRs until year 1965-66. Likewise, in case of Exs.P29 and
P30 which are mutation entry extracts from 1940-41 till 1963-
64.
72. Further, Exs.P20 to P24 are tax paid receipts for
years 1987-88 to 1992-93 which cannot be relied upon either
as documents of title or to establish possession. Even Exs.P25
and P26 which are patta books and Exs.P27 and P28 which are
extracts of index of land in respect of suit properties would fail
for very same reason.
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73. Exs.P31 and P32 are RoRs for years 1979-80 to
1986-87 would indicate name of TMC being entered in Column
no.9 as well as 12(2) would run counter to case of plaintiffs so
also Exs.P33 and P35 are mutation entries for deleting name of
plaintiffs and to enter name of TMC in RoRs of suit properties.
Insofar as Ex.P36-letter dated 13.11.1963 addressed by
President of TMC to DC, both Courts observed that same was
during period when plaintiff no.1 was holding position of
influence over TMC as admitted by PWs.3 to 5.
74. Contention that Ex.P37 is unreliable as Deputy
Commissioner had not initiated any proceedings for eviction of
plaintiff and Ex.P38 indicating that WP no.9438/1978 was filed
for direction to demarcate boundaries of suit properties and
evict plaintiff no.1 would indicate that TMC was not in
possession, would not hold as challenge against order of
confirmation of sale was pending. For aforesaid reason,
plaintiffs would not be entitled to rely on admission by DW.1
that Exs.P4 to P30 stood in name of plaintiff no.1.
75. Though plaintiffs contend that dues of Excise
department were cleared by relying on Exs.P41 and P42, such
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contention was not urged either in writ petitions filed or in
appeals. Ex.P34 though indicated mutation of name of plaintiff
no.2 from plaintiff no.1, based on clearance of Excise dues of
Rs.4,400/-, Ex.P43 would indicate that TMC resolved to prefer
revenue appeal against said entry. Ex.P45 - letter by President
of TMC to DC would be in said context leading to Ex.P46
proceedings and Exs.P.47/D.16 order passed by Spl.DC and
consequential directions by DC at Exs.P50 and P51 and
endorsement at Ex.P52 resulting in restoration of name of TMC
in RoRs. Admittedly, plaintiffs' challenge of Exs.P47/D16 order
in WP no.1610/1987 ended in its dismissal with liberty to resort
to other remedies. Therefore, documentary evidence sought to
be relied upon by plaintiffs would not substantiate their claims.
76. On other hand, Ex.D1-Resolution dated 28.11.1960
authorizing TMC to bid would discharge plaintiffs contention
that participation by TMC in auction was not authorized. Exs.D5
to D13 would indicate entry of name of TMC in RoRs, Exs.D14
to D16 about Revision filed by TMC against entry of name of
plaintiff no.2 in respect of suit properties, being allowed as per
Ex.D16 and plaintiffs challenge thereagainst failing in Ex.D20-
order. Thus, documentary evidence would not lend much to
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plaintiffs' contention about findings of both Courts being
perverse and contrary to record.
77. Merely on ground that plaintiffs were seeking relief
of permanent injunction on ground that claim of defendants
that suit properties were purchased in public auction was not
lawful, defendants would not be required to establish their title
over suit properties. On other hand, when defendants claim
title/possession over suit properties, under what circumstances,
there would be need for plaintiffs to establish title as well as
possession is clarified by Hon'ble Supreme Court in case of
Anathula Sudhakar v. P. Buchi Reddy, reported in (2008)
4 SCC 594 as follows:
"21. To summarise, the position in regard to suits for
prohibitory injunction relating to immovable
property, is as under:
(a) Where a cloud is raised over the 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 the 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
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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 [Annaimuthu
Thevar v. Alagammal, (2005) 6 SCC 202]).
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
straightforward, 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.
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The court should use its discretion carefully
to identify cases where it will enquire into
title and cases where it will refer to the
plaintiff to a more comprehensive declaratory
suit, depending upon the facts of the case."
78. Perusal of plaint reveals that plaintiffs admitted
about hypothecation of suit properties under Hypothecation
Deed dated 18.12.1958, but, feign ignorance about
proceedings for recovery of dues against plaintiff no.1, auction
held on 29.11.1960, successful bidding by TMC and
confirmation of sale by DC. There is specific assertion that
entire sale proceedings were invalid, inoperative and void in
law on account of non-conformity with provisions of Code.
Reference to appeal against confirmation of sale, order passed
on remand and contention about TMC not being put in
possession, would impute plaintiffs knowledge about auction
proceedings. Even reference to various litigation wherein there
is unequivocal reference to auction and purchase by TMC would
indicate that defendants claim over suit properties depended on
purchase in auction and being put in possession along with
entries in RoRs in pursuance of same. During trial, defendants
elicited from PW.1 that he had not challenged auction
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proceedings and PW.1 also admitted that entries in RoRs stood
in name of TMC.
79. Plaintiffs further assert in plaint that from date of
auction till 1979, no action was taken for entering name of TMC
and for delivery of possession by referring to writ petition filed
by one Puttamadaiah seeking for direction to DC to take action
in pursuance of confirmation of sale. It is further asserted that
in year 1985, political rivalry with local MLA caused said MLA to
persuade government to issue directions for mutation.
Thereafter, allegations are made against order dated
20.01.1987 passed by Spl.DC leading to entry of name of TMC
in RoRs. It is stated based on said entry, when TMC sought to
interfere with plaintiffs' possession, suit was filed.
80. While there cannot be any quarrel about position in
law that a prayer for declaration of title would not be necessary
in every suit for injunction and merely on ground of denial of
plaintiff's title, from ruling in Anathula Sudhakar's case
(supra), trial Court would be justified in giving finding on title
also while arriving at it's finding on claim for permanent
injunction, if evidence was available for same. In case, plaintiffs
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are unable to establish their lawful possession over suit
properties based on specific evidence, then possession would
follow title. In instant case, while there is no dispute about title
of plaintiff no.1 over suit properties and about their mortgage
against Excise dues, controversy between parties is whether
such divesting of title was in accordance with law and whether
plaintiffs, who claims to have continued in possession could be
held to be in lawful possession of suit properties and as such
entitled for permanent injunction.
81. While passing impugned judgment and decree, both
Courts have concurrently held that defendant had not only
claimed title over suit properties as auction purchaser in
pleading, but also led evidence to substantiate its title in
pursuance of auction sale. In fact copies of orders passed in
revenue proceedings and writ petitions, contain clear reference
to auction purchase by TMC, confirmation of sale and entry of
its name in RoRs, challenge by plaintiffs and rejection of
challenge. Further, both Courts noted that PW.1 admitted
hypothecation of suit properties, auction sale and failure of
plaintiffs to challenge auction proceedings.
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82. Having given up prayer for declaration, plaintiffs
have resorted to contend that possession continued with them,
by relying on failure by DC to take steps for confirmation of
sale, entry of name of auction purchaser and delivery of
possession mandated by Section 187 of Code, and failure by
TMC to take possession of suit properties by evicting plaintiffs.
Even in such a scenario, there is tacit admission of loss of title
and plaintiffs would require to establish their lawful possession
or against illegal dispossession to persist with their claim for
grant of relief of permanent injunction.
83. Insofar as contention about plaintiffs possession
established by Exs.P44 and P45 - correspondences dated
09.09.1986 and 27.10.1986 of TMC stating that plaintiff no.1
was illegally enjoying property of TMC. It is seen, Ex.P44 is a
reply by TMC to Secretary of Government on being issued with
show-cause notice against appointment of Administrator for
failure to safeguard interest of TMC in suit properties, wherein,
TMC narrated steps taken by it for protecting it's interest in suit
properties. Secondly, in Ex.P45 - letter, TMC had requested DC
for entry of its name in RoRs and for delivery of possession.
Though, it would indicate that name of TMC was not entered in
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revenue records and TMC was not in possession, same was
apparently due to act of plaintiff no.1 in illegally getting name
of plaintiff no.2 entered in revenue records under MR
no.41/1983-84 dated 16.02.1984. As noted above, Ex.P46
would disclose that TMC had filed Revision against said entry
leading to passing of Ex.P47 - order allowing Revision, setting
aside MR no.41/1983-84 with direction for restoration of name
of TMC and prosecution of Revenue Officials, who had colluded
in making that entry. As noted above, both Courts have duly
adverted to said facts in proper context while arriving at their
conclusions. Thirdly, both Courts concurrently held plaintiffs
had failed to establish their possession over suit properties.
84. Nextly, even admission by DW.1 - Official of TMC
that Ex.D2 was not drawn based on any record or document,
same would not ipso facto imply plaintiffs being in possession
of suit properties.
85. Admittedly, description of suit properties as vacant
land and as held in Anathula Sudhakar's case (supra),
possession would follow title. And in absence of specific and
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conclusive material to substantiate their claim based only on
weakness of defendants, plaintiffs cannot succeed.
86. Reliance on decisions in Kishen Lal, Shiralakoppa
Town Municipality and Shiva Martand Tapkire (supra)
would be misconceived when plaintiffs admit mortgage of suit
properties under Ex.P3 - Deed and there is sufficient reference
to order of confirmation of sale by Deputy Commissioner,
especially in Exs.P36 and P37 and Exs.P31 and P32 - RoRs of
suit properties from 1979-80 to 1986-87 produced by plaintiffs
showing name of TMC in Column no.9 as well as in 12(2). For
subsequent period entries in revenue records were based on
Ex.P34, which was set-aside by Spl.DC in Exs.P47/D16 - order.
Apart from above, there is specific admission by PW.1 that
plaintiffs had not challenged auction or confirmation of sale
before any Court. Even contention based on auction purchase
non-confirming to Section 38 of Municipalities Act would not
hold water as under Amending Act no.1 of 1956 sub-sections
(3) to (7) of Section 38 were omitted from statute. Thus,
substantial question of law is answered in affirmative.
Consequently, appeal is dismissed.
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After pronouncement of judgment, learned counsel for
appellant seeks for staying of impugned order since appellant
intends to approach Hon'ble Supreme Court.
On consideration, I do not find any justification to grant
interim order as prayed.
Sd/-
(RAVI V HOSMANI)
JUDGE
PSG,AV,GRD
