2. This second appeal is filed challenging the divergent
the judgment and decree passed in O.S.No.172/2014.
3. The factual matrix of the case of the plaintiff before
the converted/non-agricultural immovable property. The 'A'
compound wall towards the north and on the western side.
by him. Towards the west, there exists property belonging to
Bhajana Mandir. The plaintiff further stated that he has
purchased 'A' schedule property from Sri P. Kishore Kumar as
per registered sale deed dated 03.03.2007. The plaintiff further
got converted by one Sri B. Padmaraj as per the order of the
Tahsildar, Mangaluru dated 24.09.1988. The Corporation khata
plaintiff. The plaintiff is presently working abroad i.e., Iran. The
present suit. On 13.02.2014, the plaintiff's attorney had casually
gone to the 'A' schedule property for inspection. At that time,
schedule property. On enquiry, the plaintiff was informed that
compound wall across the 'A' schedule property. It is contented
to continue the work. Hence, in view of illegal trespass being
possession, the plaintiff is constrained to file the present suit.
4. In pursuance of the suit summons, defendant Nos.1
statement. Inspite of service of summons, defendant No.4
remained absent, hence, was placed ex-parte. The defendant
family consisting of 8 branches. The said joint family owned vast
immovable properties in and around Mangaluru. The said
Sri K. Vyasa Rao and others, which was made into a Court
No.5/1978. By virtue of the terms of the said decree, the
properties remained undivided and joint. The said decree makes
deity. Accordingly, the members of the family held meetings and
were deciding to manage the alienation of the family properties.
right in respect of the property given to him on mulgeni. The
5. The defendant No.5 also filed the written statement
of the written statement schedule property. The predecessors in
actual and exclusive possession. It is contented that written
as per the order of the Tahsildar dated 21.01.2009. The khata in
defendant and he has been paying self-assessment tax. It is
defendant. It is contented that defendant No.5 is a bona-fide
schedule property after making proper enquiry. It is contented
opinion and paid the sale consideration to the vendors. It is
statement schedule property. It is also contented that written
No.5/1978 on the file of the Civil Judge, Mangaluru.
6. The Trial Court, having considered the pleadings of
7. In order to prove the case of the plaintiff, the
document through him i.e., Ex.P30. The defendants examined a
the documents as Exs.D6 to D12. Exs.D1 to D3 are marked
8. The Trial Court having considered both oral and
permanent injunction as sought by decreeing the suit.
9. The same is challenged before the First Appellate
Court in R.A.No.91/2019. The First Appellate Court having
3. What order or decree?".
10. The First Appellate Court having reassessed both oral
and documentary evidence comes to the conclusion that plaintiff
cannot seek the relief of permanent injunction without seeking
declaration of title and judgment and decree of the Trial Court
requires interference and the same is against the evidence and
probabilities of the case and in view of answering both the points
as 'affirmative', the First Appellate Court reversed the findings of
the Trial Court in coming to the conclusion that plaintiff ought to
have sought for the relief of declaration when there is cloud on
the title. Being aggrieved by the judgment and decree of the
First Appellate Court, the present second appeal is filed before
this Court.
11. The main contention of learned counsel appearing for
the appellant/plaintiff in this second appeal is that Ex.P1 is the
sale certificate dated 28.10.1961 issued in favour of one
Sri Ramappa. He was the successful auction purchaser of
mulgeni rights of heirs of one Chandappa Belehada, who held
the mulgeni rights in respect of auction property. The auction
property is described as Sy.No.127/5, 25 cents, southern portion
of 10.56 acres. Ex.P2 is the delivery receipt by Ramappa. Ex.P26
is the sale deed dated 09.09.1963 executed by Ramappa in
favour of Devaraj Poovani. Ex.P4 is the sale deed dated
24.05.1967 by Devaraj Poovani in favour of Padmaraj. Ex.P6 is
the sale deed dated 07.09.1989 by Padmaraj in favour of
Kishore. Ex.P7 is the said deed by Kishore in favour of the
plaintiff. These are all the documents produced by the appellant
before the Trial Court while seeking the relief of permanent
injunction. Added to that, during the pendency of the suit, the
defendants got issued a legal notice dated 17.06.2016 marked
as Ex.P28. The schedule in Ex.P28 is replica of the plaint 'A'
schedule property. In Ex.P28, they demanded the plaintiff to
surrender the vacant possession of the plaint 'A' schedule
property. In doing so, they conceded that the plaintiff is in
possession of the said property. In Ex.P9, RTC, relevant page
No.10, column No.9, shows entry relating to plaintiff. Ex.P10 is
the khata and Ex.P11 is the M.R. order and all these documents
establishes that plaintiff is in possession of the suit schedule
property.
12. It is also contented that the appellant herein sought
to produce certified copy of the registered mulgeni deed bearing
No.2744/1947 by way of additional evidence. Consequently,
respondent No.1 virtually conceded that the plaintiff is transferee
of mulgeni right. It is contended that the lower Appellate Court
lost sight of the fact that in a suit for injunction, even if there is
an averment regarding title, the possession alone becomes the
main issue. If the plaintiff is found in possession and the
defendants are found to be true owners, a qualified injunction
will be granted from dispossessing the plaintiff, except in
accordance with law. It is further contented that even assuming
that sale deed of the appellant is invalid and as such, he cannot
claim to be a valid mulgeni tenant, yet, the defendant Nos.1 to 4
as original mulagars and defendant No.5 as a transferee from
them in respect of 18.5 cents out of plaint schedule property
could not have interfered with the possession of the plaintiff and
their remedy was to seek recovery of possession. The
observation of the First Appellate Court that a suit for injunction
against alienation is not maintainable is incorrect.
13. This Court having considered the grounds urged in
the appeal memo and also since there is a divergent finding,
admitted the second appeal and framed the following substantial
questions of law:
"1. Whether the First Appellate Court was right in
allowing the appeal and dismissing the suit on
the ground that the plaintiff ought to have
sought for declaration of title to the suit
property?
2. Whether the First Appellate Court was right in
reversing the judgment and decree of the Trial
Court?"
14. Learned counsel appearing for the appellant in his
argument would vehemently contend that at the first instance,
Trial Court granted the relief of permanent injunction and the
First Appellate Court reversed the same and there is a divergent
finding. It is contented that mulgeni right was purchased and
Ex.P1 is dated 28.10.1961. i.e., the sale certificate issued by the
Court in favour of Sri Ramappa. Ex.P2 is the delivery receipt and
would contend that said Sri Ramappa executed a document of
Ex.P26 dated 09.09.1963 in favour of Devaraj Poovani. The said
Devaraj Poovani executed the sale deed in terms of Ex.P4 in the
year 1967 in favour of Padmaraj. The said Padmaraj sold the
property in favour of Kishore, who is the vendor of the plaintiff
on 03.03.2007 in terms of Exhibit P7. It is also the contention
that notice was issued to surrender the possession in terms of
Ex.P28 on 17.06.2016 to vacate and handover the possession.
Hence, it is clear that possession is admitted in respect of
plaintiff is concerned. Learned counsel would vehemently
contend that when the Trial Court granted the relief of
permanent injunction, defendant No.5 filed the appeal
contending that he had purchased the property to the extent of
18.5 cents in 2011 and his vendor had purchased the same in
2009. The counsel would vehemently contend that First
Appellate Court committed an error in reversing the finding of
the Trial Court and failed to take note of Ex.P28-legal notice,
wherein possession was categorically admitted and established
and possession can be taken only under due process of law.
15. The learned counsel appearing for the appellant, in
support of his argument relied upon the judgment in MONAPPA
KOTTARI AND OTHERS VS. DAVID PINTO AND ANOTHER
reported in ILR 2006 KAR 3936, wherein this Court held that
the right of the mulgenidar or sub-mulgenidar cannot be
extinguished except in case of violation of the conditions of
mulgeni relating to payment of rent. Thus, if anybody purchases
the right of mulgar, the same will always be subject to the right
of mulgenidar or sub-mulgenidar. The counsel also brought to
notice of this Court relevant paragraph No.14, wherein the said
principle is discussed.
16. The counsel also relied upon the judgment of the
Apex Court in ANATHULA SUDHAKAR VS. P. BUCHI REDDY
(DEAD) BY LRS. AND OTHERS reported in (2008) 4 SCC
594. The counsel referring this judgment brought to notice of
this Court paragraph No.14, wherein it is categorically held that,
if no dispute with regard to the title is concerned, no need to
seek for the relief of declaration. An action for declaration, is the
remedy to remove the cloud on the title to the property. Hence,
the First Appellate Court committed an error. The counsel also
brought to notice of this Court paragraph No.16, wherein
discussion was made that if the property is a vacant site, which
is not physically possessed, used or enjoyed? In such cases, the
principle is that possession follows title. If two persons claim to
be in possession of a vacant site, one who is able to establish
title thereto will be considered to be in possession, as against
the person who is not able to establish title.
17. Per contra, learned counsel appearing for respondent
No.1 and learned counsel appearing for respondent Nos.2 to 5 in
their argument would vehemently contend that though suit is
filed for the relief of permanent injunction, First Appellate Court
taken note of both oral and documentary evidence available on
record. The counsel would vehemently contend that subject
matter of the suit is Sy.No.127/5A and even, P.W.1 is not aware
of the extent of the property. The counsel also brought to notice
of this Court in detail discussion made by the First Appellate
Court and contend that defendant No.1, who is the mulagar
denies the title of the plaintiff. When such being the case, the
First Appellate Court rightly reversed the judgment of the Trial
Court. Learned counsel would vehemently contend that the
earlier three sale deeds clearly disclose the same boundary. But,
in the sale deed of the plaintiff i.e., Ex.P7, different boundary is
given. The admission of P.W.1 was not considered by the Trial
Court and the same is appreciated by the First Appellate Court
and the boundary description given in the plaint is not correct
and identity of the property is not proved and even sketch is not
proved by examining an Engineer. The counsel also vehemently
contend that admissions of P.W.1 takes away the case of the
plaintiff and the First Appellate Court correctly appreciated the
evidence available on record, since defendant Nos.1 and 2
dispute the title of plaintiff and even title of defendant No.5 is
not disputed. The defendants have denied the title as well as the
boundaries which is mentioned in the plaint and the same has
been appreciated by the First Appellate Court. The counsel also
would vehemently contend that when the title is disputed, First
Appellate Court rightly comes to the conclusion that without
seeking the relief of declaration, the plaintiff cannot file the suit
for permanent injunction simpliciter. Hence, it does not require
any interference.
18. In reply to the arguments of learned counsel for
respondent No.1 and learned counsel for respondent Nos.2 to 5,
learned counsel for appellant brought to notice of this Court the
averments made in the written statement, particularly in
paragraph No.7, wherein the defendant No.1 categorically
admitted that neither the defendants Nos.1 to 4 nor his
purchasers have informed him about any alleged mulgeni rights
subsisting in respect of the written statement schedule property.
The vendors of this defendant have represented to him that
written statement schedule property is their absolute property,
they having purchased the same from its original owners i.e.
defendant Nos.1 to 4 herein and others and they have handed
over the title in respect of the written statement schedule
property to this defendant and the documents which have been
handed over do not show any such alleged mulgeni right over
the written statement schedule property. It is also contented
that there was an Arbitration Award which was registered as
document No.1021/1977-78 before the office of Sub-Registrar of
Mangaluru City. The written statement 'Schedule Property'
among other properties were reserved for the maintenance of
the family and towards viniyogas for the performance of rituals
of family deity. The counsel also brought to notice of this Court
that the extent of claim made by the defendants is only 18.5
cents. The document at Ex.P1 is very clear that purchase by
vendor is through Court auction in the year 1961 and counsel
also contend that Exs.P9, P10 and P11 establish the possession
of the plaintiff i.e. in the RTC, the name of the plaintiff is shown
and the khatha and M.R. also disclose that plaintiff is in
possession as on the date of filing of the suit. The counsel also
would contend that Ex.P28 is a legal notice and the boundary
mentioned in the same tallies with the plaint schedule boundary
and cannot contend that boundary description is not correct and
there is no cloud on the title. Hence, the First Appellate Court
committed an error.
19. Having considered the grounds urged in the appeal
memo and also the arguments addressed by the learned counsel
for the appellant and learned counsel for respondent No.1 and
learned counsel for respondent Nos.2 to 5, this Court has to re-
analyze and re-appreciate the material available on record, since
there is a divergent finding, keeping in view the substantial
questions of law framed by this Court whether the First Appellate
Court was right in allowing the appeal and dismissing the suit on
the ground that the plaintiff ought to have sought for declaration
of title to the suit property and whether the First Appellate Court
was right in reversing the judgment and decree of the Trial
Court.
20. While considering the material available on record,
when the relief is sought for bear injunction, the Court has to
look into the material placed before the Court whether as on the
date of filing the suit, the plaintiff is in possession of the suit
schedule property or not. It has to be noted that in the written
statement, it is contended that suit schedule property is not a
mulgeni property. But, during the course of evidence, it is
suggested to P.W.1 that it is a mulgeni property and answer is
elicited from the mouth of P.W.1. It is also important to note
that when the document of Ex.P20-photo was shown, P.W.1
categorically identifies his property and even deposed before the
Court that to the extent of 102 feet, the suit schedule property is
attached to the road and the said road is on the west of the suit
schedule property. Hence, it is very clear that suit schedule
property is identified by P.W.1 during the evidence.
21. I have already pointed out that, even answer is
elicited from the mouth of P.W.1 that suit schedule property is a
mulgeni property. P.W.1 also further admitted that mulagar is
defendant No.1. But, he did not verify whether consent of
defendant No.1 is necessary or not and he has not taken any
opinion. But, he categorically says that he has not given any
rent, but his vendor has paid the mulgeni. Hence, it is clear that
suit schedule property is a mulgeni property. Even, Exs.P26, P4,
P5 and P6 clearly disclose that suit schedule property is the
mulgeni property and it is also clear that Sri. K. Ramappa had
purchased the same in a Court auction in the year 1961 and
thereafter, the same has changed to different hands in the year
1963 and 1967. Thereafter, the vendor of the plaintiff Kishore
had purchased the same from Sri Padmaraj.
22. It is also important to note that said Sri Padmaraj
has converted the suit schedule property in the year 1988 and to
that effect, document is also produced and when the document
was confronted to him as Ex.D1, he identified the property
shown in 'blue colour' as the property which belongs to him and
the same is the suit schedule property. It is also important to
note that the sketch attached to Ex.P6 and other sketches which
were produced by the plaintiff clearly disclose that the said
sketch tally with Ex.P26 sketch. But, he categorically admits that
he has received the notice and he gave the reply and also
categorically says that defendants are claiming right to the
extent of 18.5 cents. It is also important to note that, in the
cross-examination of D.W.1, he categorically says that property
No.127/5A to the extent of 8 acres and odd belongs to
'Mejinamane' and admits that some portion was given for
mulgeni and categorically admits that mulgeni right was created
in respect of the said property.
23. As regards the possession of the plaintiff is
concerned, when question was put to D.W.1 that RTC produced
by the plaintiff discloses that plaintiff is in possession of the
property, he also admits that name of the plaintiff is mentioned
in the RTC and mulgeni right is created in favour of the plaintiff
in respect of the said property. The Trial Court also taken note of
the fact that on perusal of Exs.P9 and P15, the name of the
plaintiff is entered as mulgeni holder and has been in possession
of the suit schedule property. Apart from that, he categorically
admits that as per mulgeni right, plaintiff's property comes in
other area, but he does not know the survey number. Though,
he claims that suit schedule property is not the mulgeni
property, he is having documents and he can produce those
documents, but not produced any documents. The evidence of
D.W.1 clearly disclose that schedule property is mulgeni property
and the plaintiff is the mulgenidar of the schedule property as
entered in Exs.P9 and P15 and also taken note of the documents
Exs.P26, P4, P5 and P6 and those documents disclose that
property is transferred to the name of the plaintiff and the
plaintiff is the mulgenidar of the schedule property. The Trial
Court also taken note of these factors and even defendants did
not dispute the fact that the original owner of the property
Sri K. Ramappa got the suit schedule property vide mulgeni on
30.09.1947 and he categorically admitted that suit schedule
property is a mulgeni property and that he does not know about
the boundaries of the property which is in possession of the
plaintiff. He also admits the description of the suit schedule
property during the course of cross-examination and also admits
that there exists a road on the northern side and also on the
western portion, there is a road and also admits the boundaries
in the cross-examination. Where such being the case, identity of
the property is also admitted by D.W.1.
24. Apart from that, D.W.2 has been examined on behalf
of the defendants. He categorically admits that the property
which is marked in Ex.P7A with 'red colour' was sold in favour of
the plaintiff and hence, the document was marked. But, when
the suggestion was made that said land is in possession of the
plaintiff, he says that he is not aware of the same. Further, he
admits that in the property which the plaintiff has purchased, the
defendant No.5 is not having any right.
25. D.W.3 also categorically admits that defendant Nos.1
to 4 have only warga right over the suit schedule property and
defendant No.5 himself has admitted that schedule property is a
mulgeni property and defendants Nos.1 to 4 have warga right.
Hence, the case of the plaintiff is substantiated by eliciting
answer from the mouth of D.Ws.1 to 3.
26. Learned counsel appearing for the appellant also
relied upon the judgment referred supra in MONAPPA
KOTTARI's case, wherein this Court has held that the right of
the mulgenidar or sub-mulgenidar cannot be extinguished except
in case of violation of the conditions of mulgeni relating to
payment of rent. Thus, if anybody purchases the right of mulgar,
the same will always be subject to the right of mulgenidar or
sub-mulgenidar. Hence, there is a force in the contention of the
learned counsel for the appellant that mulgenidar or sub-
mulgenidar will enjoy the property permanently subject to
payment of rent to mulagar and such a peculiar lease is
prevailing only in Canara District.
27. This Court also would like to rely upon the judgment
of the Apex Court in ANATHULA SUDHAKAR's case, wherein in
paragraph No.14, detailed discussion is made with regard to
filing of a suit for the relief of declaration is concerned when
there is a cloud on the title. Paragraph No.14 of the judgment
reads as under:
"We may, however, clarify that a prayer for
declaration will be necessary only if the denial of title
by the defendant or challenge to plaintiff's title raises
a cloud on the title of plaintiff to the property. A
cloud is said to raise over a person's title, when
some apparent defect in his title to a property, or
when some prima facie right of a third party over it,
is made out or shown. An action for declaration, is
the remedy to remove the cloud on the title to the
property. On the other hand, where the plaintiff has
clear title supported by documents, if a trespasser
without any claim to title or an interloper without
any apparent title, merely denies the plaintiff's title,
it does not amount to raising a cloud over the title of
the plaintiff and it will not be necessary for the
plaintiff to sue for declaration and a suit for
injunction may be sufficient. Where the plaintiff,
believing that 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 raises a serious dispute
or cloud over 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 issue
of title".
28. The Apex Court also in the judgment clearly held
that when there is a dispute with regard to the title is concerned,
then suit ought to have been filed for the relief of declaration.
An action for declaration, is the remedy to remove the cloud on
the title to the property. But, in the case on hand, no dispute
with regard to the mulgeni right of the plaintiff is concerned.
Even, learned counsel appearing for the appellant brought to
notice of this Court paragraph No.7 of the written statement that
defendant No.5 has made the clear averment that neither
defendant Nos.1 to 4 nor the purchasers have informed him
about any alleged mulgeni rights subsisting in the respect of the
written statement schedule property. The vendors of this
defendant have represented to him that written statement
schedule property is their absolute property, they having
purchased the same from its original owners i.e. defendant
Nos.1 to 4 herein and others and have handed over all the titles
in respect of the written statement schedule property to the
defendants. Hence, it is clear that mulgeni right is suppressed by
the defendant Nos.1 to 4 before purchasing the property by the
defendant No.5.
29. It is also important to note that the document of
Ex.P28 which is produced before the Court is also very clear that
defendants admitted possession of the plaintiff in terms of the
said document, wherein they have sought for handing over
possession. When such being the case, the First Appellate Court
ought to have taken note of said fact into consideration and the
First Appellate Court lost sight of the said document while
reversing the judgment of the Trial Court. It is also important to
note that learned counsel for the appellant brought to notice of
this Court that the schedule mentioned in Ex.P28 is replica of the
schedule mentioned in the plaint. Hence, the very contention
that earlier 3 sale deeds disclose the different description and
Ex.P7 does not disclose the said description cannot be accepted
and the very same schedule is admitted by the defendants while
issuing notice. When the possession of the plaintiff is admitted in
terms of the document Ex.P28, wherein in the notice also right
of the plaintiff in respect of the schedule property is admitted
and called upon to quit and surrender the schedule property and
directed to deliver the possession of the schedule property, the
First Appellate Court ought to have taken note of the said fact
that plaintiff is in possession of the property and the possession
ought to have been taken under due process of law. The suit is
also filed for the permanent injunction simpliciter and defendants
also not claimed title in respect of the very same property of the
plaintiff. No doubt, the description shown in the sale deed of the
defendants overlaps the same, but this document came into
existence subsequently and having traced the boundaries from
1961 onwards as well as subsequent change in the boundaries,
the same is admitted by the defendants themselves in the notice
dated 17.06.2016 and learned counsel cannot dispute the same
contending that Ex.P7 is having different boundary and
admission of the defendant takes away the case of the
defendants, since the boundary is different.
30. It is settled law that when there is clear admission
on the part of defendants in the notice issued in terms of Ex.P28
as well as throughout in the cross-examination which has been
discussed in detail about mulgeni right which the plaintiff is
having and apart from that, since possession is admitted, the
Trial Court rightly appreciated both oral and documentary
evidence of P.W.1 as well as D.Ws.1 to 3. Apart from that, the
documents clearly establish the possession of the plaintiff in
terms of Exs.P9 to P11 and earlier vendor of the plaintiff got
converted the property in the year 1988 itself i.e., one Padmaraj
and as on the date of filing of the suit, the documents stand in
the name of the plaintiff and the same is established by the
plaintiff.
31. When such being the case, the very approach of the
First Appellate Court that the plaintiff ought to have sought for
the relief of declaration is an erroneous approach when there is
no dispute with regard to the title is concerned and the judgment
of the Apex Court in ANATHULA SUDHAKAR's case will not
come to the aid of the defendants, but the same comes to the
aid of the appellant, in view of the discussion made in paragraph
No.14 of the judgment. Hence, the judgment impugned passed
by the First Appellate Court requires interference of this Court.
Accordingly, I answer substantial questions of law framed by this
Court that First Appellate Court was not right in allowing the
appeal and dismissing the suit on the ground that the plaintiff
ought to have sought for declaration of title to the suit property
and the reversal of the judgment and decree of the Trial Court is
an error. Hence, the judgment of the Trial Court requires to be
restored and if the defendants are having any right, the same
has to be exercised under due process of law.
32. In view of the discussion made above, I pass the
following:
ORDER
(i) The regular second appeal is allowed.
(ii) The impugned judgment and decree of the
First Appellate Court is set aside.
Consequently, the judgment and decree of the
Trial Court is restored and the same is
confirmed.
Sd/-
(H.P. SANDESH)
JUDGE
ST
