Karnataka High Court
N.S. Satyanarayana vs Thimmappa And Another on 14 August, 1997
Equivalent citations: ILR1999KAR383, 1998(5)KARLJ128
JUDGMENT
1. The plaintiff is the appellant. The suit for declaration in respect of three items of the suit property and for injunction restraining the defendants from disturbing his possession, was partly decreed by the Trial Court (in respect of item 1 only) in O.S. 286 of 1982 on the file of the Additional Munsiff, Arasikere on 7-11-1987. Appeal preferred therefrom by the plaintiff again in R.A. 1 of 1988 on the file of the Civil Judge, Arasikere came to be dismissed on 25-1-1988. The plaintiff is for the second appeal as appellant before this Court.
2. The plaintiff claimed declaration of title in respect of three items of properties, on the basis of purchase from one Manjunathaiah, and according to him the defendants were trying to interfere with his possession of the property and also threatened to cut Honge and Babul trees raised in item 2 of the property and hence he prayed for declaration and injunction.
3. In the written statement, the defendants contended that the plaintiff did not purchase items 2 and 3 as items 2 and 3 are the properties wherein the defendants are in possession and the said properties are Gomal land belonging to the Government of Karnataka and that non-impleading of Government of Karnataka is fatal to the suit. Thus, the defendants resisted the suit.
4. The Trial Court on evidence and trial concluded that the suit, declaring the plaintiff to be the owner in respect of item 1, can be sustained. But in respect of items 2 and 3, the claim has to be rejected. So declaration and injunction in respect of item 1 alone was granted and in respect of items 2 and 3, the prayer was rejected. On appeal, the Appellate Court, though found that the possession is with the plaintiff, declined to grant the injunction on the ground that the plaintiff cannot be considered to be a person in lawful possession in view of the fact that those are the Government lands. Questioning such a finding, the plaintiff is before this Court.
5. The question of law is as follows:
"Were the Courts below right in holding that in the absence of the State Government as party to the suit despite a finding that the possession of the suit property was with the plaintiff, were justified in refusing a decree for permanent injunction?
6. It is contended by the Counsel for the appellant that once the Appellate Court comes to the conclusion that the plaintiff is in possession, notwithstanding the title claimed to be in favour of the Government, injunction must have been given especially in view of the threats, which has been held to be correct in respect of item 1 by the Trial Court. According to him, non-joinder of parties cannot be a ground for dismissal of the suit. He also relied upon the dictum regarding grant of injunction in the case of M. Kallappa Setty v M.V. Lakshminarayana Rao, wherein the Supreme Court held thus:
"5. So far as the question of possession is concerned, as mentioned earlier, both the Trial Court and the First Appellate Court have accepted the plaintiffs case that he was in possession of the suit site ever since he purchased the same in 1947. This is essentially a finding of fact. That finding is based on evidence. The High Court, in our opinion, erred in coming to the conclusion that the possession of the plaintiff after the sale deed in his favour is not a relevant circumstance. We are of the opinion that it is an extremely important circumstance. The plaintiff can on the strength of his possession resist interference from persons who have no better title than himself to the suit property. Once it is accepted, as the Trial Court and the First Appellate Court have done, that the plaintiff was in possession of the property ever since 1947, then his possession has to be protected as against interference by someone who is not proved to have a better title than himself to the suit property. On the findings arrived at by the fact finding Courts as regards possession the plaintiff was entitled to the second relief asked for by him even if he had failed to prove his title satisfactorily".
7. The learned Counsel also relied upon the decision in S. Narayana Rao v R. Narasinga Rao (deceased) by L.Rs2, for the proposition that non-impleading of Government or the Municipality in whom the right was found will not be fatal to the suit and cannot deprive the plaintiff to get the injunction against the third party defendant before the Court.
8. After hearing the learned Counsel, I am of the view 'that the finding of the Appellate Court refusing to grant injunction is wrong. When the Appellate Court, has come to the conclusion that the appellant/plaintiff was found to be in possession of the property, but yet goes on to discuss the ownership of the property said to be in favour of the Government. Consequently, the Appellate Court found that the possession of the plaintiff cannot be construed as lawful. The appellant has given up the claim for adverse possession or right of prescription. The appellant confines only to the question of possession.
9. Therefore, confining the issue only to the question of possession and in view of the concurrent findings that the appellant is found to be in possession of items 2 and 3 also, the judgment and decree of the Appellate Court is set aside and the decree of injunction alone is granted in respect of items 2 and 3 also. The second appeal is, therefore, allowed to the above extent. No costs.