Karnataka High Court
Shri Shivmurthy Swamy S/O Late Veeraiah vs Shri K M Pompaiah Swamy S/O Gurubasaiah ... on 27 October, 2025
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RSA No. 100164 of 2023
HC-KAR
IN THE HIGH COURT OF KARNATAKA,AT DHARWAD
DATED THIS THE 27TH DAY OF OCTOBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
REGULAR SECOND APPEAL NO. 100164 OF 2023 (INJ)
BETWEEN:
1. SHRI SHIVMURTHY SWAMY
S/O. LATE VEERAIAH,
AGE: 66 YEARS, OCC. AGRICULTURIST,
R/O. KALLUKAMBA VILLAGE,
TQ. AND DIST. BALLARI-583101.
2. SHRI AYYAPPA SWAMY S/O. LATE VEERAIAH,
AGE: 61 YEARS, OCC. AGRICULTURIST,
R/O. KALLUKAMBA VILLAGE,
TQ AND DIST. BALLARI-583101.
3. SHRI SADASHIVAPPA SWAMY S/O. LATE VEERAIAH,
AGE: 51 YEARS, OCC. AGRICULTURIST,
R/O. KALLUKAMBA VILLAGE,
YASHAVANT TQ AND DIST. BALLARI-583101.
NARAYANKAR
...APPELLANTS
Digitally signed by (BY SRI. V.M. SHEELVANT, ADVOCATE)
YASHAVANT
NARAYANKAR
Date: 2025.10.30
11:09:29 +0530 AND:
SHRI K.M. POMPAIAH SWAMY
S/O. GURUBASAIAH.,
SINCE DECEASED BY HIS LRS.,
1. SMT. SIDDALINGAMMA
W/O. LATE K.M.POMPAIAH SWAMY
AGE: 74 YEARS, OCC. AGRICULTURIST,
R/O. RAMASAGAR VILLAGE,
TQ. HOSAPETE, DIST. BALLARI-583101.
2. SHRI VIRUPAKSHAIAH
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RSA No. 100164 of 2023
HC-KAR
S/O. LATE K.M.POMPAIAH SWAMY,
AGE: 54 YEARS, OCC. AGRICULTURIST,
R/O. RAMASAGAR VILLAGE,
TQ. HOSAPETE, DIST. BALLARI-583101.
3. SHRI. SHIVASHANKARAIAH
S/O LATE K.M. POMPAIAH SWAMY,
AGE: 49 YEARS, OCC. AGRICULTURIST,
R/O. RAMASAGAR VILLAGE,
TQ. HOSAPETE, DIST. BALLARI-583101.
4. SMT. MALLAMMA
D/O. LATE K.M.POMPAIAH SWAMY
W/O. MALLAIAH, OCC. AGRICULTURIST,
R/O. KARTIGI VILLAGE, TQ. GANGAVATHI,
DIST. KOPPAL-583231.
5. SMT. BASAMMA D/O. K.M. PAMPAIAH SWAMY,
W/O. LATE PRABHAKAR, AGE: 50 YEARS,
OCC. AGRICULTURIST, R/O. RAMASAGAR VILLAGE,
TQ. HOSAPETE, DIST. BALLARI-583101.
6. K.M. CHANDRASHEKARIAH SWAMY
S/O. GURUBASAIAH, AGE: 57 YEARS,
OCC. AGRICULTURIST, R/O. RAMASAGAR VILLAGE,
TQ. HOSAPETE, DIST. BALLARI-583101.
7. K.M.BASAIAH SWAMY S/O. KATTEIAH
AGE: 51 YEARS, OCC. AGRICULTURIST,
R/O. RAMASAGAR VILLAGE,
TQ. HOSAPETE, DIST. BALLARI-583101.
...RESPONDENTS
(BY SRI. SACHCHIDANAND B. PATIL, ADVOCATE FOR R1 TO R5;
R6 AND R7-NOTICE SERVED)
THIS RSA IS FILED UNDER SECTION 100 R/W XLI RULE 1 OF
CPC, 1908, PRAYING TO CALL FOR THE RECORDS, PERUSE THE SAME
AND ALLOW THE APPEAL BY SETTING ASIDE THE JUDGMENT AND
DECREE DATED 11.10.2017 PASSED IN O.S.NO. 795/2011 BY THE II
ADDITIONAL CIVIL JUDGE AND JMFC, BALLARI AND THE JUDGMENT
AND DECREE DATED 01.09.2022, PASSED BY THE PRL. SENIOR CIVIL
JUDGE AND CJM BALLARI IN R.A.NO.47/2018 IN THE INTEREST OF
JUSTICE AND EQUITY AND ETC.
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RSA No. 100164 of 2023
HC-KAR
THIS APPEAL, COMING ON FOR ORDERS THIS DAY, JUDGMENT
WAS DELIVERED THEREIN AS UNDER:
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE C M JOSHI)
Heard both sides.
2. It is the case of the appellants that the plaintiff No.1
to 3 are the brothers and they represent the branch of
K.M.Ayyaswami and the defendant No.1 to 3 represent the
branch of K.M.Gurubasaiah. The said K.M.Ayyaswami and
K.M.Gurubasaiah had a brother by name Basaiah and they were
the children of K.M.Sanna Kottaiah. The joint family consisting of
K.M.Ayyaswami, K.M.Gurubasaiah and K.M.Basaiah possessed
the land measuring 6 acres 88 cents in Survey No.40 of
Kallukamba village of Ballari Taluk and District. The defendant
No.1 to 3 purchased the share of K.M.Basaiah to the extent of 2
acres 30 cents. In all, they together had title in respect of 2
acres 29 cents + 2 acres 30 cents out of 6 acres 88 cents. The
appellants contended that they had title in respect of 2 acres 30
cents and the defendants are trying to obstruct their possession
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and therefore, they approached the Trial Court in
O.S.No.795/2011. It is pertinent to note that they sought
injunction in respect of the entire 6 acres 88 cents. The suit was
resisted by the defendants by filing the written statement where
they contended that they had purchased 2 acres 29 guntas from
the legal heirs of K.M.Basaiah. However, they contended that
there was a partition and the injunction cannot be granted in
favour of the plaintiffs and as such, the suit is misconceived and
the same be dismissed.
3. On the basis of the averments in the plaint and the
written statement, the trial Court framed the following issues:
"1. Whether the plaintiffs prove that, they are in lawful
possession and enjoyment over the suit schedule
property as on the date of filing of the suit?
2. Whether the plaintiffs further prove that, the alleged
interference over the suit schedule property by the
defendants?
3. Whether the plaintiffs are entitled to the relief
sought for?
4. What Order or Decree?"
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4. After recording evidence, the Trial Court dismissed
the suit on the ground that the suit property is the family
property of the plaintiffs and defendants. The Trial Court in
paragraph 11 and 12 of its judgment held as under:
"11. It is the strong case of the defendants that, the suit
property is the family property of plaintiffs and
defendants and initially the suit property which was
purchased by the branch head of plaintiffs and defendants
subsequently, in the year 1980 the legal heirs of the K.M.
Basaiah sold their share over the suit property in favour
of defendants. In order to substantiate the same they
have relied upon Ex.D.4 which is the registered sale deed
dated 09.07.1980 and to the said sale deed the present
plaintiff No.2 and father of plaintiffs signed as witness.
Further in order to prove that, suit property is family
property of plaintiffs and defendants, at the time of
argument learned counsel for the defendants relied upon
Ex.D.1 which is the certified copy of the plaint in OS
No.229/2006 the said suit filed by the present plaintiffs
against the defendants for the relief of declaration of title
over the suit property by virtue of adverse possession
against present defendants. In the said plaint para No.5
the plaintiffs have clearly admitted that,
As the defendants fathers do not intend to reside at
Kallukamba and as the lands are dry lands they left
of the villages and started residing at Rama Sagara
village, in other words relinquishing their rights in
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the property and the plaintiffs father continued his
possession in and over the property
uninterruptedly.
12. In the above said case in plaint para No.5, the
plaintiffs have clearly admitted that, the present
defendants had share in the suit property and further
plaintiffs stated that, the father of the defendants was not
intending to reside at Kallukamba village therefore, the
fathers of the defendants by relinquishing their rights in
the property they are left the Kallukamba village.
However, there are no materials to show when and under
which document the fathers of the defendants had
relinquished their rights over the suit property. At this
stage it is just and proper to relay an decision of Hon'ble
Supreme Court reported in (2002)9 SCC-608 in Sahakari
Parvata Rao Karahala and another V/s
Bheemashankar Parvata Rao Karahala. In the above
said case in a similar situation Hon'ble Supreme Court
held that, the court cannot grant injunction against the
co-sharer in the absence of partition therefore, on careful
perusal of the materials available on record there are no
piece of evidence to show that, the fathers of the
defendants have relinquished their rights over the suit
property and the same is partitioned by meets and
bounds therefore, under these circumstances plaintiffs
failed to prove his exclusive lawful possession over the
suit property as on the date of suit and when he is not in
lawful possession over the suit property, as on the date of
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suit the alleged interference of the defendants does not
arise. Hence, I answer issue No.1 & 2 in the negative."
5. In coming to such conclusion, it relied on the
judgment in the case of Sahakari Parvata Rao Karahala and
another V/s Bheemashankar Parvata Rao Karahala .
6. Being aggrieved by the same, the plaintiffs
approached the First Appellate Court and it also confirmed the
judgment of the Trial Court and dismissed the appeal in
R.A.No.47/2018.
7. Learned counsel appearing for the
appellants/plaintiffs submits that the First Appellate Court could
not have dismissed the suit for injunction in its entirety despite
there being an admission in the written statement of the
defendants that the plaintiffs are in possession and enjoyment of
2 acres 30 cents on the western side of Survey No.40. In this
regard, learned counsel appearing for the appellants points out
to the written statement wherein at paragraph 18 it was stated
as below:
(2002) 9 SCC 608
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"18. Further these defendants submits that, during the
enquiry before the Deputy Tahasildar, Nada Kacheri,
Kurugodu, the vendors have given the statement to that
effect. Therefore these defendants and the defendant
No.2 have been in lawful possession and enjoyment of 4
acre 58 cents in the schedule property since 9.7.1980,
which situate within the following boundaries; East -
Land of Harishchandra setty and Badigera
Mouneshachar, towards West Land of plaintiffs,
measuring 2.30 acres, towards North -land of Sanna
Bheemareddy who is no more now and his sons are in
possession and towards South Land of Harijana Kumar
and Huligamma. There is a clear demarcation/boundary
line between the land of the plaintiffs and the
defendants. Though these defendants and defendant
No.2 have been in lawful possession and enjoyment of
4.58 acres in suit schedule property, by oversight not
submitted an application for change of mutation. But
under law, it is the duty cost upon the revenue
authorities to effect mutation the moment they receive
"J" form from the Sub-Registrar Office. Hence recently
these defendants and defendant No.2 got the mutation
in their favour in accordance with law. All these facts
are within the knowledge of the plaintiffs. But they
deliberately suppressed these material facts with a
dishonest intention. The plaintiffs are fully aware of the
subsequent developments with regard to suit schedule
property in particular the orders passed by the Deputy
Tahasildar, Nada Kacheri, Kurugodu, Tahasildar, Bellary,
and the pendency of the appeal before the Assistant
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Commissioner, Bellary, against the orders alleged to
have been passed by the Tahasildar, Bellary, under the
provisions of the Karnataka Certain Inams Abolition
Act."
8. It is worth to note that it is a specific case of the
defendants that 2 acres 30 cents is enjoyed by the plaintiffs by
virtue of earlier partition in the property. Though the plaintiffs
had sought for injunction in respect of the entire 6 acres 88
cents, there being an admission on behalf of the defendants that
the plaintiffs are in possession of 2 acres 30 cents on the
western side of Survey No.40, the suit in its entirety could not
have been dismissed. Therefore, it is settled position of law that
if a relief is claimed and if the plaintiffs do not seek the
consequential relief, the suit cannot be decreed. In view of
Section 34 of the Specific Relief Act, all the reliefs have to be
claimed in the same suit itself. The proviso to Section 34 of the
Specific Relief Act bars such suit in which the consequential
reliefs are not sought. In the case on hand, Though it is
submitted by the counsel for the respondents that the
consequential relief of possession was not sought and when
there is an admission in the written statement of the defendants
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that 2 acre 30 cents was allotted to the share of the plaintiffs, it
was not necessary that the entire suit has to be dismissed. The
suit being one for permanent injunction simplicitar, it could not
have been dismissed in its entirety. Therefore, the appeal
deserves to be allowed partly. Hence, the following:
ORDER
(i) The appeal is allowed in part.
(ii) The suit of the plaintiffs is decreed in part.
(iii) The impugned judgment and decree dated
11.10.2017 in O.S.No.795/2011 passed by the
II-Additional Civil Judge and JMFC, Ballari and
the judgment and decree dated 01.09.2022 in
R.A.No.47/2018 passed by the Principal Senior
Civil Judge and CJM, Ballari are set aside only in
respect of 2 acres 30 cents on the southern side
of Survey No.40 of Kallukamba village of Ballari
Taluk and District. The injunction shall operate
only in respect of 2 acres 30 cents against the
defendants.
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(iv) In view of disposal of the appeal, pending
interlocutory applications, if any, do not survive
for consideration and are disposed of
accordingly.
SD/-
(C M JOSHI)
JUDGE
YAN
CT:PA
