Karnataka High Court
Shri. Bharatesh Balasaheb Kuppanatte, vs Shri. Noorbabasab Peeraso Mantoorkar, on 9 February, 2018
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 09th DAY OF FEBRUARY 2018
BEFORE
THE HON'BLE MR. JUSTICE B.A. PATIL
REGULAR SECOND APPEAL NO.5004 of 2011
(DECL. & PER.IN AND MAN.INJ)
BETWEEN
1. SHRI. BHARATESH BALASAHEB KUPPANATTE,
AGE: 39 YEARS, OCC: BUSINESS,
R/O: BHOJ- 591 263,
TQ: CHIKODI, DIST: BELGAUM.
2. SHRI. SUBHASH DEVAGOUDA PATIL,
AGE: 36 YEARS, OCC: BUSINESS,
R/O: BHOJ-591 263,
TQ: CHIKODI, DIST: BELGAUM.
...APPELLANTS
(BY SRI M G NAGANURI, ADV.)
AND
SHRI. NOORBABASAB PEERASO MANTOORKAR,
SINCE DEAD. BY L.RS.,
1(A) Smt. RAZIYA AMINSAB NADAF
AGE 48 YEARS, OCC: HOUSEHOLD,
R/O 11 LANE SHIVAJINAGAR, NIPANI
591 237 TALUK CHIKODI, DIST. BELGAUM.
1(B) SMT. HAMEEDA, W/O HAROON NADAF,
AGE 38 EYARS, OC: HOUSEHOLD
R/O BHOJ, 591263, TALUKA CHIKODI,
DIST. BELGAUM.
... RESPONDENTS
(RSPONDENTS ARE SERVED)
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THIS RSA IS FILED U/SEC.100 R/W. SEC.42 RULE 1 OF
CPC., AGAINST THE JUDGEMENT & DECREE DTD:18-12-2010
PASSED IN RA.NO.07/2008 ON THE FILE OF THE PRESIDING
OFFICER, FAST TRACK COURT-I, CHIKODI, ALLOWING THE
APPEAL BY SETTING ASIDE THE JUDGMENT AND DECREE
DTD:24-11-2007 PASSED IN OS.NO:145/2006 ON THE FILE OF
THE PRL. CIVIL JUDGE(JR.DN) & JMFC., CHIKODI, DISMISSING
THE SUIT FILED FOR DECLARATION, PERPETUAL INJUNCTION
AND MANDATORY INJUNCTION.
THIS RSA COMING ON FOR FINAL HEARING THIS DAY,
THE COURT, DELIVERED THE FOLLOWING:
JUDGMENT
The present second appeal has been preferred by defendant Nos.1 and 2 being aggrieved by the judgment and decree passed by the Fast Track Court-I, Chikodi, in RA No.7 of 2008 dated 18.12.2010 whereunder the judgment and decree passed by the trial Court in O.S. No.145 of 2006 is set aside and the suit of the plaintiff was decreed by declaring him as the owner of the suit open space and restraining the defendants from obstructing his possession over the open space and they were directed to remove the pillars put up in the suit open space by encroachment within a month from the date of the order.
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2. Brief facts of the case are that the plaintiff filed a suit against the defendants for declaration that he is the owner in possession of the suit property that the open space measuring 11 feet east-west and 9 feet north-south situated at Bhog village, taluka Chikodi and permanent injunction restraining the defendants from interfering with the possession and for consequential relief of mandatory injunction to remove the construction made in the suit property. It is the contention of the plaintiff that his father deceased Peeraso Sayyedso Manturkar purchased the suit property and house property bearing VPC No.1442 from Bhavu Khavare and his two sons for a sum of Rs.700/- by virtue of a sale deed dated 12.04.1966. He also contended that to the east of the suit property there is a property belonging to Balaku Bhosle consisting of house bearing VPC No.1445 and open space bearing VPC No.1444 and to the west of the suit property there is a property of VPC No.1446 belonging to the vendors of defendant. He further contended that the house bearing VPC No.1442 measuring 9 feet east- west and 27 feet north-south and the same is in the 4 ownership and possession of the plaintiff and he is doing business in the sale of butter and he used to park his car in the suit property.
3. In pursuance of the summons, defendants appeared and filed their written statement contending that the description of the suit property is not correct and the plaintiff is having no concern over the suit property. He further contended that the suit property is part and parcel of VPC No.1446 and after obtaining necessary permission from the Gram Panchayat, they have put up the construction in the said area. They further contended that one Babu Appa Parit filed a suit before the vacation District Judge, Belgaum, in VOS No.49 of 2006 and obtained an exparte injunction and immediately after vacation, the said suit was transferred to the Civil Judge(Junior Division), Chikodi and by order dated 28.06.2006 temporary injunction granted exparte was vacated. The plaintiffs have filed a suit only in order to harass the defendants in collusion with Babu Appa Parit. On these grounds they prayed for dismissal of the suit. 5
4. The plaintiffs in order to prove his case, got examined himself as PW-1 and got examined two more witnesses as PWs.2 and 3 and got marked Exs.P-1 to P-10. On behalf of the defendants, defendant No.1 got examined himself as DW-1 and got marked Exs.D-1 to D-18.
5. After hearing the parties to the lis, the suit was dismissed by judgment and decree dated 24.11.2017. Being aggrieved by the said judgment and decree, the plaintiff preferred an appeal in RA No.7 of 2008 and by the impugned judgment and decree, the judgment and decree passed in the Original Suit has been set aside and the relief claimed by the plaintiff has been granted. Now the defendants appellants are before this Court contending that the lower appellate Court has utterly failed to consider the fact that there is no proper description of the suit property and without proper description of the suit property, the suit itself is not maintainable in law. He further contended that when the plaintiff has specifically contended that the defendants are in possession of the property and a mandatory injunction to remove the construction has been sought then under such 6 circumstances, that itself goes to show that they were not in possession. Under such circumstances, the first appellate Court ought not to have granted the relief of injunction as against the appellants-defendants. He further contended that when defendants are in possession of the suit properties, then under such circumstances, mere suit for declaration without possession, suit is not maintainable. This aspect has not been considered by the first appellate Court. Though the judgment and decree of the trial Court has been set aside, the impugned order is cryptic and no reasons have been assigned how the trial court has committed an error and no specific discussions have been made with reference to the facts and evidence on record. Without discussing the same, if the decree has been set aside, the same is liable to be set aside by this Court. He further contended that the plaintiff has to win or loose the case on his own, he cannot take the weakness of the defendant and make his case strong. He further contended that the sketch which has been produced clearly goes to show that the plaintiff if at all is having any open space it 7 will not be by the side of the property of the defendants. Then under such circumstances, the first appellate court ought to have confirmed the judgment and decree passed by the trial Court. He further contended that the records which have been produced by the plaintiff himself at Exs.P-1 and 2 clearly goes to show that in the property VPC No.1442 is a house property and no open space is existing in this behalf. When there is no opens space, then under such circumstances, the question of granting any relief as prayed for does not arise at all. These aspects have not been properly considered and appreciated by the first appellate Court and has erroneously allowed the appeal by decreeing the suit of the plaintiff. Even by bringing to the notice of this court he further contended that the prayer granted itself clearly indicate the fact that the said relief cannot be granted as prayed for but the first appellate Court ignoring all the facts and the existing situation has granted the relief. On these grounds, he prayed for allowing the appeal by setting aside by the impugned judgment and decree of the first 8 appellate Court by restoring the judgment and decree passed by the trial Court.
6. Though notices have been issued to the respondents and the respondents have been served with the said notices, they have remained unrepresented and have not contested the present appeal.
7. The main substantial questions of law which arise for the consideration of this Court is that,
i) Whether the first Appellate Court was justified in reversing the judgment and decree of the Trial Court when the plaintiff has filed a suit for declaration of ownership and permanent injunction without he being in possession of the property as on the date of the suit?
ii) Whether the first Appellate Court is justified in passing the impugned judgment and decree when there is lack of evidence with regard to the identification of the property and whether the first Appellate Court is justified in giving the relief of declaration, injunction and consequential relief of mandatory injunction?
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8. As could be seen from the records, the plaintiff has filed the suit for declaration, injunction and consequential relief of mandatory injunction. It is the contention of the plaintiff that he has purchased the suit property by virtue of a sale deed dated 12.04.1966 for a sum of Rs.700/- and the suit property bears VPC No.1442 situated at Bhoj village and the said property measures 9 feet east-west and 27 feet north-sought and it is as per schedule 'A'. In order to substantiate the said contention plaintiff got examined himself as P.W.1. In his evidence, P.W.1 has reiterated the contents of the plaint. During the course of cross-examination he has deposed that the open space which has been purchased is bounded by, to the east
- the house and open space of Bhalku Gharache; to the west
- a road; to the south - the house and open space of Dattu Bhosale; and to the north - a road. He has also specifically stated that, at the time of purchase, the properties were having property numbers and the sale deed does not contain the property number. He has also deposed that he has not got entered his name in respect of the open space. He has 10 further deposed that he is aware of the fact that the defendants have purchased the property and have put up construction after obtaining permission. The said fact coupled with Ex.P.1, the tax assessment extract of Bhoj Gram Panchayat clearly indicates that only house property exists and no open space is purchased in the name of the plaintiffs.
9. Be that as it may, it is the case of the plaintiff that the defendant, after noticing his objection to the proposed construction, proceeded to file a caveat petition against him and thereafter started the construction and carried on the same in spite of filing of the suit and admittedly, during the pendency of the suit, no injunction was operating. He has also got produced Exs.P.7 and P.8, the photographs in respect of the suit property which clearly indicates the fact that the defendant has put up construction over the suit property and the same clearly indicates the fact that the defendants are in possession of the suit property. Even during the course of cross-examination he has admitted that 8 feet of his property has been encroached and 11 he is aware of the fact of the encroachment. Under the said circumstances, the moot question which arises for the consideration of this Court is, whether the suit for declaration that he is the owner and permanent injunction is maintainable in law?
10. Admittedly, if the evidence clearly go to show that the plaintiff is not in possession of the suit property as on the date of the suit, then under such circumstances, the relief of permanent injunction is not the appropriate consequential relief; the appropriate consequential relief that is required to be sought, along with the declaration of ownership, would be recovery of possession of the property. When the plaintiff is out of possession of the property and does not seek the relief of possession, then under such circumstances, a suit for mere declaration is not maintainable. This proposition of law has been laid down by a co-ordinate Bench of this Court in the case of Sri Aralappa Vs. Sri Jagannath and Others reported in ILR 2007 KAR 339. The Head Note 'B' of the said citation reads as under: 12
"(B) SPECIFIC RELIEF ACT, 1963-SECTION 34 -Declaration of status or right -Discretion of Court-Held, In a suit for declaration of ownership and permanent injunction, the plaintiff has to prove his title to the property and also his possession over the property on the date of the suit-Further held, when the plaintiff is not in possession of the property on the date of the suit, relief of permanent injunction is not an appropriate consequential relief-The appropriate relief consequential to declaration of ownership would be recovery of possession of the property - when the plaintiff is out of possession of the property and does not seek relief for possession, a mere suit for declaration is not maintainable-Court below was justified in dismissing the suit as not maintainable-Appeals are dismissed."
11. The said proposition of law has also been earlier laid by the Hon'ble Apex Court in the case of Ram Saran and another v. Smt. Ganga Devi, reported in AIR 1972 SC 2685, wherein at para No.4, it has been observed as under:
" 4. We are in agreement with the High court that the suit is hit by Section 42 of the Specific relief Act. As found by the fact-finding Courts, Ganga Devi is in possession of some of the suit properties. The plaintiffs have not sought possession of those properties. They merely claimed a declaration that they are the owners of the suit properties. Hence the suit is not maintainable. In these circumstance, it is 13 not necessary to go into the other contention that the suit is barred by limitation."
12. On going through the above said proposition of law with reference to the facts and circumstances of the case, the present suit is filed for declaration, injunction and mandatory injunction and the plaintiff has not sought for possession of the property. Under such circumstances, the question which remains to be considered by this Court is only with regard to declaration that he is the owner of the suit property. As held by the Hon'ble Apex Court in the above quoted decision and by this Court, a suit for mere declaration is not maintainable. This proposition of law has not been properly considered and appreciated by the first Appellate Court and has erroneously, without a discussion on the merits of the case, has come to a wrong conclusion.
13. The second contention which has been raised by the learned counsel for the appellant is that the description of the property is not properly mentioned in the plaint and under the said facts and circumstances, the identification of the property itself is doubtful and under such 14 circumstances, the question of granting relief of declaration and injunction does not arise. In order to substantiate his contention, he relied upon a decision of T.L.Nagendra Babu vs. Manohar Rao Pawar reported in ILR 2005 KAR 884. Head Note (C) of the said citation reads as under:
" (C) SUIT FOR DECLARATION AND INJUNCTION -
REQUIREMENT OF EVIDENCE - DUTY OF THE COURT - HELD - Unless the Court is satisfied with regard to materials details in the light of the materials evidence with regard to the identification of the property, no declaration and injunction can be granted."
14. Keeping in view the above said facts and circumstances, if we perused the averments made in the plaint that therein the plaintiff has stated the description of the property as mentioned in schedule 'A' and in schedule 'A', he has not specifically mentioned number of the property and all that he has mentioned is that, the suit schedule 'A' property consists of open space measuring 11 feet east -west and 9 feet south-north as per the sale deed dated 12.04.1966. He has also mentioned the boundaries. Though the boundaries of the properties have been mentioned, no 15 number of the property has been mentioned in this behalf. During the course of cross-examination, he has also admitted the fact that all the properties in the gram panchayat have been given numbers. If the property has been purchased in this behalf, then definitely it would have had some number. In this behalf also, the description given is not proper and it is not even specifically mentioned in the sale deed. If we go through the sale deed-Ex.P.6 and Ex.P.6(a), which is the Kannada translation of Ex.P.6, it has been mentioned that it is a dung-pit open space measuring east-west 11 feet and South-North 9 feet and the boundaries to the said property is mentioned as, towards East - house property and backyard of Balku Bhosale; towards North - Government road; towards West - backyard of Salunke; and South - backyard of Dattu Bhosale. The description given in Ex.P.6 and the description given at suit schedule 'A' property do not tally.
15. Be that as it may, if we peruse Ex.D.13, the Commissioner's Report along with the sketch filed in O.S. No.98/2006, it is seen that the sketch is prepared by the 16 Commissioner and he has shown the properties adjacent to each other including the suit property in that suit i.e., V.P.C. No.1446. In between V.P.C. Nos.1446 and 1442, there are three more properties bearing V.P.C. Nos.1445, 1444, and 1443. the suit property which is alleged to have been encroached by the defendant, it will not fall by the side of V.P.C. No.1446. The said description which has been given in the plaint and schedule 'B', the map, also does not tally in this behalf. When there are so many discrepancies in the pleadings of the plaintiff itself and the plaintiff has not come to the Court with satisfactory material with regard to the identity of the property, then under such circumstances, the question of declaration and injunction does not arise at all. This proposition of law has also been laid down by a Co- ordinate Bench of this Court in T.L. Nagendra Babu's case (quoted supra). Keeping in view the said facts and circumstances, the first Appellate court has also not property considered and appreciated the said facts and law in its right perspective and has erroneously passed the 17 impugned judgment thereby reversing the judgment of the Trial Court.
16. Be that as it may, even on perusal of Ex.D.7 it clearly goes to show that the Panchayat authorities have given an endorsement that the plaintiff's name is not appearing in the property extract of the Gram Panchayat and even the plaintiff has admitted that his name has not been entered in pursuance of the sale deed-Ex.P.6. If really, by virtue of Ex.P.6-sale deed, the open space has been purchased, then under such circumstances, definitely, he could not have kept silent or slept over his rights. If he is in possession and enjoyment of the property, definitely, he could have made some attempt to get his name entered in respect of the suit properties, in the relevant records.
17. Be that as it may. It is the specific contention of the plaintiff that he is making use of the suit property to keep his car for his butter business, but he has not established the said fact in any manner. The said contention taken up by the plaintiff appears to be not in consonance 18 with the sale deed-Ex.P.6. In Ex.P.6 the property has been mentioned as a dung-pit for the purpose of storing dung and if the dung is going to be stored at that particular place, then under such circumstances, the contention that the plaintiff is keeping car in the said property, making use of the said property and enjoying, is not acceptable and reliable.
18. Keeping in view the above said facts and circumstances, the substantial questions of law are answered in the affirmative and hence, I pass the following:
ORDER Regular second appeal is allowed. The judgment and decree passed by the first Appellate Court in R.A. No.7/2008 is set aside and the judgment and decree passed by the Civil Judge (Jr. Dn.) and JMFC, Chikkodi, in O.S. No.145/2006 is restored.
No order as to costs.
Sd/-
JUDGE Kmv/Kms