Karnataka High Court
Babu Sab S/O Imam Sab vs Hussain Sab S/O Rajasab Bagali on 11 January, 2023
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RSA No. 5258 of 2008
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 11TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 5258 OF 2008 (INJ-)
BETWEEN:
1. BASHU SAB S/O IMAM SAB
SINCE DECEASED BY HIS LRS.
1A. HUSSAINPEERA S/O BASHU SAB,
AGE:47 YEARS, OCC: AGRICULTURE,
R/O: HULGI VILLAGE, TQ & DIST: KOPPAL.
1B. IMAMSAB S/O BASHU SAB,
AGE:39 YEARS, OCC: AGRICULTURE,
R/O: HULGI VILLAGE, TQ & DIST: KOPPAL.
1C. JEELANISAB S/O BASHU SAB,
AGE:38 YEARS, OCC: TEACHER,
R/O: HULGI VILLAGE, TQ & DIST: KOPPAL.
1D. HAJIALI BABA S/O BASHU SAB,
AGE:32 YEARS, OCC: AGRICULTURE,
R/O: HULGI VILLAGE, TQ & DIST: KOPPAL.
1E. JAVID S/O BASHU SAB,
AGE:30 YEARS, OCC: AGRICULTURE,
R/O: HULGI VILLAGE, TQ & DIST: KOPPAL.
1F. SAILAN BABA S/O BASHU SAB,
AGE:28 YEARS, OCC: AGRICULTURE,
R/O: HULGI VILLAGE, TQ & DIST: KOPPAL.
1G. FARIDA BEGAUM W/O ANWAR BASHA,
AGE:45 YEARS, OCC: HOUSEWIFE,
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RSA No. 5258 of 2008
R/O: HULGI VILLAGE, TQ & DIST: KOPPAL.
1H. SHAHIDA BEGAUM W/O SABUDDIN SAB,
AGE:35 YEARS, OCC: HOUSEWIFE,
R/O: HULGI VILLAGE, TQ & DIST: KOPPAL.
...APPELLANTS
(BY SRI. DEEPAK C MAGANUR, ADV. (NOC OBTAINED)
SRI.CHANDRASHEKHAR PATIL & SRI.A.R.KOLLI, ADVS.)
AND:
HUSSAIN SAB S/O RAJASAB BAGALI
AGE MAJOR, OCC: AGRICULTURE,
R/O HULGI VILLAGE, TQ & DIST: KOPPAL.
...RESPONDENT
(BY SRI. B SHARANABASAWA, ADV.)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 26.09.2008
PASSED IN R.A.NO.32/2007 ON THE FILE OF THE CIVIL JUDGE
(SR.DN.), KOPPAL, ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGMENT AND DECREE DATED 19..11.2007
PASSED IN O.S.NO.80/2001 ON THE FILE OF THE CIVIL JUDGE
(JR.DN.) & JMFC, KOPPAL.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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RSA No. 5258 of 2008
JUDGMENT
1. Present appeal is by the plaintiff (now represented through his LRs.), being aggrieved by the judgment and order dated 26.09.2008 passed in R.A.No.32/2007 on the file of the Civil Judge (Sr.Dn.), Koppal (hereinafter referred to as 'the First Appellate Court'), in and by which, the First Appellate Court while allowing the appeal filed by the defendant set aside the judgment and decree dated 19.11.2007 passed in O.S.No.80/2001 on the file of the Civil Judge (Jr.Dn.), Koppal (hereinafter referred to as 'the Trial Court).
2. The above suit is filed by the plaintiff for relief of permanent injunction against the defendant on the premise that suit property being vacant piece of land measuring 30'x27' was allotted to the plaintiff in the year 1973-74 by the Tahasildar, Koppal. That ever since the date of allotment, the plaintiff is in peaceful possession and enjoyment of the suit property. That the defendant without having any right, title or interest over the suit -4- RSA No. 5258 of 2008 property was unnecessarily interfering with the peaceful possession and enjoyment of the same by the plaintiff. Hence the suit.
3. The defendant in his written statement specifically denied the case of the plaintiff. It is contended by the defendant that he is the owner in possession of ancestral house measuring 55'x31.5' situated on the northern side of the open space being claimed in the suit by the plaintiff. That the plaintiff in collusion with the Revenue Authorities, had fabricated and created documents. He had not created any right, title or interest in favour of the plaintiff in respect of the suit property. It is further contended by the defendant that he has put up foundation on the suit property and has also constructed a bathroom, which is used by the defendant. The defendant has also disputed the description of the property and also the claim of the plaintiff that the suit property was allotted by the Panchayat is also denied on the premise that Panchayat having no right or authority to allot the suit -5- RSA No. 5258 of 2008 property to the plaintiff. It is also contended that the plaintiff has not produced any document to show his possession over the suit property.
4. Based on the aforesaid pleadings, the Trial Court framed the following issues:
1. Whether the plaintiff proves that he is in lawful possession of the suit property as on the date of the suit?
2. Whether the plaintiff further proves the alleged interference by the defendant?
3. Whether the plaintiff is entitled to the relief as sought?
4. What order or decree?
5. The plaintiff examined himself as PW1 and two additional witnesses as PW2 and 3 and exhibited 6 documents marked as Exs.P1 to P6. The defendant examined two witnesses as DW1 and 2 and exhibited 2 documents marked as Exs.D1 and D2.
6. The Trial Court on appreciation of evidence, decreed the suit of the plaintiff and consequently issued -6- RSA No. 5258 of 2008 relief of permanent injunction in favour of the plaintiff restraining the defendant from causing interference into the peaceful possession and enjoyment by the plaintiff over the suit property.
7. Being aggrieved by the same, the defendant filed regular appeal in R.A.No.32/2007 before the First Appellate Court. On the grounds urged therein, the First Appellate Court framed the following points for its consideration:
1. Whether the appellant/defendant proves that the plaintiff was not in possession of the suit property as on the date of the suit?
2. Whether the appellant/defendant proves that the Trial Court has committed an error in appreciating the evidence, thereby wrongly answered issue No.1 & 2 in favour of the plaintiff, therefore interference of this Court is required?
3. What order?
8. The First Appellate Court while answering issue Nos.1 and 2 in the affirmative, allowed the appeal and set aside the judgment and decree dated 19.11.2007 passed -7- RSA No. 5258 of 2008 in O.S.No.80/2001 and consequently dismissed the suit.
Being aggrieved by the aforesaid judgment and order passed by the First Appellate Court, the plaintiff is before this Court in this regular second appeal.
9. This Court by order dated 18.06.2013 while admitting the above appeal, framed the following substantial question of law:
"Whether the First Appellate Court was justified in reversing the finding of the Trial Court in accepting quibala at Ex.P2 granting relief of injunction in favour of the plaintiff?
10. Sri.Deepak C. Maganur, learned counsel for the appellants reiterating the grounds urged in the memorandum of appeal submits;
10.1. That the First Appellate Court failed to appreciate that the original plaintiff had acquired right, title and interest over the suit property in terms of the allotment letter (quibala) as per Ex.P2, which was issued by the competent Authority. The said document not having been challenged, set aside or withdrawn by the issuing -8- RSA No. 5258 of 2008 Authority, it was not open for the defendant to have questioned the same. He submits that the Trial Court committed no error in accepting and relying upon the said document while granting relief of injunction as sought for, which the First Appellate Court ought not to have interfered with.
10.2. That the First Appellate Court further erred in perusing the condition in Ex.P2, requiring plaintiff to put up construction and the suit property being left vacant, resulting in purported violation of the said condition as the same was unwarranted for the purpose of determination of the lis between the parties. He submits that questioning violation of terms of Ex.P2, if any, was open to the issuing Authority and it was not therefore open for the First Appellate Court to have adverted to the said issue, which was nobody's case.
10.3. That the First Appellate Court erred in placing reliance on the rough sketch prepared by the defendant produced at Ex.D1. The rough sketch did not depict true -9- RSA No. 5258 of 2008 picture with regard to possession of the defendant over the suit property. The First Appellate Court was therefore grossly erred in misreading the evidence produced by the parties and consequently allowed the appeal and dismissed the suit giving rise to substantial question of law as framed above requiring to be answered in the affirmative in favour of the appellants. Hence, he seeks for allowing of the appeal.
11. On the other hand, Sri.B.Sharanabasawa, learned counsel for the respondent justifying the order passed by the First Appellate Court submits;
11.1. That the plaintiff has categorically admitted with regard to putting up of foundation and also construction/extension of bathroom in the portion of suit property and being utilized by the defendant till date.
11.2. Referring to the deposition of PW1 recorded on 02.01.2007, which is extracted in the judgment passed by the First Appellate Court, he submits that the said
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RSA No. 5258 of 2008 question/suggestion were made to the witness based on the contents of Ex.D1 and the same not having been denied by PW1, amounts to admission.
12. He further submits that the plaintiff not having produced any material evidence with regard to his possession, is not entitled for relief of injunction. As regards Ex.P2 is concerned and the reason given by the Trial Court of same being 30 years old, learned counsel submits that the conclusion arrived at by the Trial Court with regard to age of the document, is incorrect and the same was approximately 27 years old.
13. That the First Appellate Court has taken note of the same at paragraph 10 of its judgment which is just and proper. He also points out that the First Appellate Court has also taken note of the fact that Ex.P2 which is relied upon by the plaintiff does not contain the surname of the plaintiff giving rise to a doubt on the claim of the plaintiff with regard to the very allotment of the same by the Authority. He submits that the First Appellate Court
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RSA No. 5258 of 2008 has not committed any error in allowing the appeal and dismissing the suit. Hence, he submits that the appeal be dismissed answering substantial question of law in favour of the plaintiff.
14. Heard the learned counsel for the appellants and the respondent and perused the records.
15. It is to be seen that the suit is one for bare injunction. The plaintiff has sought for the relief of bare injunction based in quibala, a allotment letter which is at Ex.P2 purported to have been issued by the Tahasildar. In the written statement at paragraph 2, the defendants has pleaded as under:
"2. That, the allegations made in para No.1 of the plaint are totally false and frivolous. It is a Himaliyan lie to allege that the Plaintiff has been allotted by the Panchayat an area measuring 30 Feet x 27 Feets and its Panchayat No.288/1. Hence, the same is specifically denied. The alleged allotment and the subsequent Panchayat records referred to by the Plaintiff are false and frivolous besides being made behind the back of these defendants. Infact the Plot No.288 totally has all along been belonging to the defendants family standing in the name of Chaman bi W/o Rajasab Bagali. It appears the scheming Plaintiff in connivance of the revenue Panchayat Officials with a malafide intention of usurping the open space which part and parcel of Plot No.288 has concocted the documents referred to in para under reply. The boundaries
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shown in the alleged allotment order (Quibala) and in plaint schedule are totally false. These defendants have produced the hand sketch map showing the house of plaintiff, defendants and the open space along with their Counter to I.A.No.I which may please be treated as part and parcel of this written statement. Therein house of the defendants is shown as A.B.C.D. and the open space which forms part of the defendants' property is shown as C.B.H.I. However, under the colour of wrong boundaries shown in alleged Quibala the cantankerous plaintiff is trying to bolster his false claim on the open space shown as C.B.H.I. which is all along been in possession of these defendants as part and parcel of their plot No.288 as stated supra. Infact as Plot No.288 all along been a private property the Tahasildar could not have allotted the same and that the even otherwise the alleged Quibala can never confer any right to the Plaintiff. Other documents mentioned in para under reply also the outcome of collusion between the plaintiff and panchayat officials. Hence, all the allegations made in para under reply are denied."
16. Thus from a bare perusal of the said content at paragraph 2 of the written statement, it is clear that the defendant has not only denied the claim of the plaintiff over the suit property, of he having acquired the same as per Ex.P2, defendant has also set up title in respect of suit property in himself and also claims to be in possession of the same. That apart, existence of bathroom over the portion of suit property constructed by the defendant and being used by him is admitted by the plaintiff, though learned counsel for the plaintiff has contended that the said bathroom and the foundation is constructed within the
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RSA No. 5258 of 2008 property belonging to defendant falling in 10' area. However, no material in this regard is produced.
17. The First Appellate Court at paragraph 9, page Nos.9 and 10 of the impugned judgment and order, referring to the deposition of the plaintiff, has held that the plaintiff is not in possession of the suit property. At paragraph 12, while dealing with the claim of the plaintiff regarding title over the suit property, has come to the conclusion that the evidence is not sufficient. Taking into consideration all these aspects of the matter, the First Appellate Court allowed the appeal and dismissed the suit.
18. There is yet another aspect of the matter to be seen as held by the Apex Court in the case of Anathula Sudhakar Vs. P.Buchi Reddy reported in AIR 2008 SC 2033, wherein the Apex Court has held that a suit for bare injunction is not maintainable when the title of the plaintiff is disputed. At paragraph 17 of the said judgment of the Apex Court has held as under:
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"17. To summarize, the position in re- gard to suits for prohibitory injunction re- to immovable property, is as under:
(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or with- out a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of pos- session, he has to sue for possession with a consequential injunction.
Where there is merely an interference with 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 issue of title will not be directly and sub- stantially 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 pos- session.
(c) But a finding on title cannot be re- corded in a suit for injunction, unless there are necessary pleadings and appropriate is- sue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra). 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 straight- forward, the court may decide upon the is- sue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question
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RSA No. 5258 of 2008 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. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case."
19. In the case of T.V.Ramakrishna Reddy Vs. M.Mallappa, AIR Online 2021 SC 698, the Apex Court at paragraphs 10, 11, 15 & 20 has held as under:
'10. It could thus be seen that this Court in unequivocal terms has held that where the plaintiff's title is not in dispute or under a cloud, a suit for injunction could be decided with reference to the finding on possession. It has been clearly held that 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.
11. No doubt, this Court has held that 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. However, it has been held that such cases are the exception to the normal rule that question of title will not be decided in suits of injunction.
12.xxx
13.xxx
14.xxx
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15. It could thus clearly be seen that this is not a case where the plaintiff/appellant can be said to have a clear title over the property or that there is no cloud on plaintiff/appellant's title over the suit property. The question involved is one which requires adjudication after the evidence is led and questions of fact and law are decided.
16.xxx
17.xxx
18.xxx
19.xxx
20. It will also be relevant to refer to the following observations of this Court in the case of Jharkhand State Housing Board v.Didar Singh and another2:
"11.It is well settled by catena of judgments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction."
20. In the instant case, reading of paragraph 2 of the written statement as extracted hereinabove, leads no doubt that the defendant apart from denying the title of the plaintiff has also set up the title and possession of the suit property in himself giving rise to serious cloud over the title of the plaintiff which the Trial Court has lost sight
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RSA No. 5258 of 2008 of. Though the suit of the plaintiff is dismissed by the First Appellate Court for requirement of proof of evidence with regard to the possession, the aforesaid legal aspect of the matter, cannot be lost sight of.
21. In that view of the matter, substantial question of law framed above is to be answered in affirmative in favour of the defendant. Accordingly the present appeal is dismissed, confirming the judgment and order passed by the First Appellate Court.
22. Needless to state not withstanding the dismissal of the suit, the plaintiff is entitled to seek appropriate remedy, by way of a comprehensive suit for declaration of title, which if filed shall be disposed of in accordance with law.
sd JUDGE KGK List No.: 1 Sl No.: 6