Karnataka High Court
Shri Nagappa Yallappa Patil Since Dead ... vs Shri Gireppa Gangappa Itagikar on 14 January, 2026
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2026:KHC-D:440
RSA No. 1026 of 2007
HC-KAR
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 14TH DAY OF JANUARY, 2026
R
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
REGULAR SECOND APPEAL NO. 1026 OF 2007 (INJ)
BETWEEN:
SHRI NAGAPPA YALLAPPA PATIL,
SINCE DECEASED BY LRS.
1. SMT. TANGEWA W/O. NAGAPPA PATIL,
AGE: 70 YEARS OCC: HOUSEHOLD,
R/O. MANGYANKOP-591302,
TAL: KHANAPUR, DIST. BELGAUM.
SINCE DECEASED BY HER LRS.
2. SHRI NINGAPPA NAGAPPA PATIL,
AGE: 55 YEARS, OCC: SERIVCE,
R/O. 1638, SECTOR NO.8,
ANJANEY NAGAR, BLEGUAM-590016.
3. SHRI VITHAL NAGAPPA PATIL,
Digitally signed
by MALLIKARJUN
AGE: 50 YEARS, OCC: AGRICULTURE,
RUDRAYYA
KALMATH
Location: High
R/O. MANGYANKOP-591302,
Court of
Karnataka,
Dharwad Bench
TAL: KHANAPUR, DIST. BELGAUM.
4. SRI RAMESH NAGAPPA PATIL,
AGE: 40 YEARS,
R/O. MANGYANKOP-591302,
TAL: KHANAPUR, DIST. BELGAUM.
5. SRI VIJAY NAGAPPA PATIL,
AGE: 30 YEARS OCC: SERVICE,
R/O. POLICE QUARTERS, NIPANI-591237,
TALUK: CHIKODI, DIST. BELGAUM.
6. SMT. MALLAWA W/O. KRISHNA PATIL,
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NC: 2026:KHC-D:440
RSA No. 1026 of 2007
HC-KAR
AGE: 52 YEARS OCC: HOUSHOLD,
R/O. MASKENHATTI-591302,
TAL: KHANAPUR, DIST. BELGAUM.
7. SMT. AWAKKA W/O. TOPANNA HANABAR,
AGE: 51 YEARS, OCC: AGRICUTLURE,
R/O. VEERAPPANKOPP, POST MUTNAL,
TAL. & DIST. BELGAUM-590001.
SINCE DECEASED BY HER LR'S.
7A. TOPANNA MOKAPPA HANABAR,
AGE: 77, OCC: AGRIL.
R/O. VEERAPPANKOPP, POST: MUTNAL,
TQ. & DIST. BELAGAVI.
7B. MOKAPPA TOPANNA HANABAR,
AGE: 48, OCC: AGRIL.
R/O. VEERAPPANKOPP, POST: MUTNAL,
TQ. & DIST. BELAGAVI.
7C. MANJULA W/O. VIJAY PATIL,
AGE: 45, OCC: HOUSEHOLD,
R/O. POLICE HEAD QUARTUS,
NIPPANI, DIST. BELAGAVI.
8. SMT. SUSHILA W/O. YALLAPPA MUMMINAGATTI,
AGE: 35 YEARS OCC: SERVICE,
R/O. C/O. RANGE FOREST OFFICE,
DHARWAD-580001.
...APPELLANTS
(BY SRI B. S. KAMATE, ADVOCATE.)
AND:
SHRI GIREPPA GANGAPPA ITAGIKAR,
AGE: 75 YEARS, OCC: AGRICULTURE,
R/O. MANGYANKOP-591302,
TAL: KHANAPUR, DIST. BELGAUM.
...RESPONDENT
(BY SRI ASHOK R. KALYANASHETTY, ADVOCATE)
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NC: 2026:KHC-D:440
RSA No. 1026 of 2007
HC-KAR
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF THE CODE OF CIVIL PROCEDURE, PRAYING TO AFTER
CALLING FOR THE RECORDS AND PROCEEDINGS OF THE CASE,
THE JUDGMENT AND DECREE DATED: 22.01.2007 PASSED BY
THE LEARNED IIND ADDL. CIVIL JUDGE (SR.DN), BELAGAVI AT:
KHANAPUR IN R.A.NO.308/99 AND THE JUDGMENT AND DECREE
DATED 31.08.1999 PASSED BY THE LEARNED ADDL. CIVIL
JUDGE (JR.DN), KHANAPUR IN O.S.NO.72/1992 MAY KINDLY BE
SET ASIDE BY ALLOWING THIS R.S.A. WITH COSTS IN THE
INTEREST OF JUSTICE.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) This regular second appeal is filed by the defendant challenging the judgment and decree dated 22.01.2007 passed in R.A.No.308/1999 on the file of II Additional Civil Judge (SR.DN.), Belagavi1, which confirmed the judgment and decree dated 31.08.1999 passed in O.S.No.72/1992 on the file of Additional Civil Judge (JR.DN.) and JMFC, Khanapur2, thereby the suit for permanent and mandatory injunction was decreed and the defendant was permanently restrained from interfering with the plaintiff's possession of the suit property and further directed to remove the gobar gas plant constructed by him in the suit 1 Hereinafter referred to as the 'First Appellate Court' 2 Hereinafter referred to as the 'Trial Court' -4- NC: 2026:KHC-D:440 RSA No. 1026 of 2007 HC-KAR property by way of mandatory injunction, which is confirmed by the First Appellate Court.
2. Being aggrieved by the said judgments and decrees passed by the Trial Court and the First Appellate Court, the defendant has preferred the present regular second appeal.
3. For the purpose of convenience and easy reference, ranking of the parties is referred to as per their status before the Trial Court.
4. The plaintiff filed a suit for permanent and mandatory injunction. The prayer for mandatory injunction has the effect of directing the defendant to remove the gobar gas plant constructed and installed on a portion of the suit schedule property. It is pertinent to mention here that the plaintiff has not sought any relief of declaration. The plaintiff has described the suit property as an open space forming part of MPC No.165, situated at Mangenkoppa village of Khanapur Taluk, measuring 12 feet on the east-west side and 144 feet on the north-south side.
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NC: 2026:KHC-D:440 RSA No. 1026 of 2007 HC-KAR
5. It is the case of the plaintiff that he is the owner of the suit property, which is an open space attached to the property bearing MPC No.165. The defendant is alleged to have encroached upon the said open space and constructed a gobar gas plant thereon. Therefore, the plaintiff filed the suit seeking the aforesaid reliefs.
6. The defendant appeared and filed a written statement contending that the house property bearing MPC No.165 was belonged to the defendant and that, as the plaintiff is related to him, the plaintiff was permitted to use the same. After coming into force of the Panchayat Act, the name of the plaintiff's father was entered in the records. The defendant is the owner of properties bearing MPC Nos.164 and 166, and the open space now claimed by the plaintiff does not form part of MPC No.165 but belongs to the defendant.
7. It is further the case of the defendant that though the plaintiff is the owner of the house property bearing MPC No.165, but is not the owner of the courtyard/open space, which belongs to the defendant. It is also submitted that the house property bearing MPC No.165 is bounded on three sides by the properties -6- NC: 2026:KHC-D:440 RSA No. 1026 of 2007 HC-KAR of the defendant and on one side by a public road, and even the Secretary of the VPC (Village Panchayat Committee) has issued a certificate to that effect. Thus, the defendant contends that the plaintiff, being his sister's son, has filed the suit for permanent and mandatory injunction with an intention to grab the suit property.
8. The Trial Court, after considering the evidence adduced by both parties, decreed the suit, granting a permanent injunction and also a mandatory injunction directing the defendant to remove the gobar gas plant constructed on the suit open space.
9. Being aggrieved by the judgment and decree passed by the Trial Court, the defendant preferred a regular appeal before the First Appellate Court. The First Appellate Court dismissed the appeal, thereby confirming the judgment and decree of the Trial Court. Consequently, the defendant has filed the present regular second appeal.
10. Against the concurrent findings of both the Trial Court and the First Appellate Court, the defendant has preferred the -7- NC: 2026:KHC-D:440 RSA No. 1026 of 2007 HC-KAR present appeal by raising various grounds. This Court, on 17.04.2007, has framed the following substantial question of law:
"Whether the Courts below were justified in granting the mandatory injunction in the absence of relief of declaration sought by the defendant."
11. Learned counsel appearing for the defendant/appellant submitted that, while it is not in dispute that the plaintiff is the owner of the property bearing MPC No.165, but he is not the owner of the backyard, which is an open space not attached to the property of MPC No.165. It is further submitted that the defendant is the owner of the open space allegedly being claimed by the plaintiff. Therefore, insofar as the open space is concerned, there is a dispute regarding title. The defendant does not dispute the plaintiff's ownership of the houses bearing MPC Nos.165 and 167, but specifically disputes ownership of the open space not attached to the property bearing MPC No.165, but contending that it does not form part of the suit property. -8-
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12. It is further submitted that, in view of this dispute over title, the suit solely for the relief of permanent and mandatory injunction is not maintainable. When the defendant is disputing the title over the open space on which he has constructed the gobar gas plant, the plaintiff bears the burden of filing suit seeking the relief of declaration and to establish title over the open space but not sought relief of declaration. Therefore, a mere suit for mandatory injunction, without establishing title, is not maintainable and hence, prays to allow the appeal.
13. Learned counsel appearing for the defendant/appellant places reliance on the judgment of the Hon'ble Supreme Court between Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs. And Others3, and the judgment of this Court between Shri Baban @ Maruti Govind Jadhav (Dead) by LRs. And Others Vs. Shri Uttam Anant Sarolkar and Others4.
14. On the other hand, learned counsel appearing for the plaintiff/respondent submitted that the Trial Court has answered issue Nos.1 to 4 in favour of the plaintiff holding that the plaintiff is the owner of property bearing MPC No.165. Therefore, justified 3 (2008) 4 Supreme Court Cases 594 4 Miscellaneous Second Appeal No.540/2012 decided on 16.06.2025 -9- NC: 2026:KHC-D:440 RSA No. 1026 of 2007 HC-KAR the judgment and decree passed by the Trial Court. It is further submitted that there is no substantial question of law involved in entertaining the appeal, relying on the provisions of Sub Section (5) of Section 100 of the Code of Civil Procedure, 1908. It is further submitted that the plaintiff is admittedly owner of the property bearing MPC No.165, while the defendant is the owner of the properties bearing MPC Nos.164, 166 and 167. In view of this, the open space on which the gobar gas plant was constructed is attached to the property bearing MPC No.165, and there is no dispute regarding title over this open space. The Trial Court and the First Appellate Court have rightly considered this fact. Accordingly, prayed for dismissal of the appeal.
15. The Trial Court, after appreciating both oral and documentary evidence, held that the plaintiff is the owner of the property bearing MPC No.165. The plaintiff produced Ex.P2-hand sketch, Ex.P3 and Ex.P4, which are property tax extracts of MPC No.165 for the years 1961-62 and 1991-92, and Ex.P5-property certificate issued by MPC Mangyankoppa, all of which establish the plaintiff's ownership of the property bearing MPC No.165. The evidence also establishes that the defendant is the owner of
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NC: 2026:KHC-D:440 RSA No. 1026 of 2007 HC-KAR the properties bearing MPC Nos.164, 166 and 167. On the basis of this evidence, the Trial Court has held that the plaintiff is the owner of the property bearing MPC No.165 and accordingly decreed the suit. The First Appellate Court, upon re-appreciating the evidence in light of the Trial Court's findings, has confirmed the judgment and decree passed by the Trial Court.
16. Upon considering the findings given by the Trial Court and the First Appellate Court as well as the submissions made by both counsels, it is not in dispute that the plaintiff is the owner of house property bearing MPC No.165. The dispute pertains only to the title over the open space attached to the property bearing MPC Nos.164, 165 and 166. The subject matter involved in dispute is not the house property itself, but the open space claiming to be attached to the house property bearing No.165. According to the defendant, the property bearing MPC No.165 does not have open space and the said property is only house property.
17. Upon considering of the pleadings of the defendant, it is evident that the defendant has denied the title of the plaintiff over the suit open space, which is claimed to be attached to the
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NC: 2026:KHC-D:440 RSA No. 1026 of 2007 HC-KAR property bearing MPC No.165. Even as per the description of the suit property furnished by the plaintiff, the schedule property is an open space and is bounded by property of the defendant both on eastern and western sides. As per the boundaries shown in the plaint, the suit open space is bounded on the east and west side property of the defendant and on the north by the house property bearing MPC No.165. Therefore, the question that arises for consideration is whether the open space, on which the gobar gas plant is constructed, is attached to the property of the defendant either on the eastern or western side, or whether it forms part of the plaintiff's property situated on the northern side.
18. The defendant has not admitted the ownership of the plaintiff over the suit open space and has specifically disputed the plaintiff's title thereto. When this being the contention of the defendant disputing the title of the plaintiff over the suit open space, the question that arises for consideration is whether a mere suit for mandatory and permanent injunction is maintainable without seeking the relief of declaration of title.
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19. The Hon'ble Supreme Court, in the judgment in Anathula Sudhakar (supra), has laid down the principles of law governing the appropriate reliefs to be sought for in the suit proceedings, particularly in cases involving dispute over title, which reads as follows:
12. On the contentions urged, the following questions arise for our consideration in this appeal:
(i) What is the scope of a suit for prohibitory injunction relating to immovable property?
(ii) Whether on the facts, the plaintiffs ought to have filed a suit for declaration of title and injunction ?
(iii) Whether the High Court, in a second appeal under section 100 CPC, could examine the factual question of title which was not the subject matter of any issue and based on a finding thereon, reverse the decision of the first appellate court?
Re: Question (i)
13. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or
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NC: 2026:KHC-D:440 RSA No. 1026 of 2007 HC-KAR possession with injunction as a consequential relief, are well settled.
We may refer to them briefly.
13.1. Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner. 13.2. Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.
13.3. Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from the defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish
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NC: 2026:KHC-D:440 RSA No. 1026 of 2007 HC-KAR possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.
21. To summarize, the position in regard to suits for prohibitory injunction relating 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 without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, 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 substantially 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
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NC: 2026:KHC-D:440 RSA No. 1026 of 2007 HC-KAR consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar v. Alaganmal5). 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 issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title 5 (2005) 6 SCC 202
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NC: 2026:KHC-D:440 RSA No. 1026 of 2007 HC-KAR 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.
20. Further, this Court, in Shri Baban @ Maruti Govind Jadhav (Dead) by LRs. And Others (supra), has held that where a relief of mandatory injunction is sought, the plaintiff is required to establish and prove his title. Only thereafter the question of granting a decree for mandatory injunction arises.
21. Considering the principles of law stated above and the factual matrix as pleaded in the written statement, it is evident that the defendant has not admitted the title of the plaintiff over the suit open space. On the contrary, in the written statement, it is evident that the defendant has specifically disputed the plaintiff's title to the suit open space.
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22. Furthermore, the Trial Court, while answering issue Nos.1 to 4, has observed that the plaintiff has proved ownership of the house bearing MPC No.165; however observed the ownership of the land on which the gobar gas plant is constructed is disputed. Upon appreciation of the evidence on record, the Trial Court itself raised a question regarding the ownership and possession of suit open space.
23. The Trial Court further appreciated the evidence of the defendant, who denied the plaintiff's title to the backyard attached to the property bearing MPC No.165. It was also observed by the Trial Court that there is no fencing separating the backyards of properties bearing MPC Nos.163, 164, 165 and
166.
24. In view of these observations, it is clear that there exists a genuine dispute with regard to the title of the suit open space. Unless and until the plaintiff establishes his title by seeking and obtaining a declaration that the suit open space belongs to him and forms part of property bearing MPC No.165, the question of granting a decree for mandatory injunction directing removal of the gobar gas plant does not arise.
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NC: 2026:KHC-D:440 RSA No. 1026 of 2007 HC-KAR However, in the present case, the plaintiff has not sought the relief of declaration and has merely filed the suit for mandatory and permanent injunction. Therefore, unless a suit for declaration is filed in case of dispute over the title of property, there is no question of granting decree of mandatory injunction.
25. Hence, as per the principles of law laid down by the Hon'ble Supreme Court and this Court, if there is a dispute regarding title, then it is incumbent upon the plaintiff to seek relief of declaration and to prove his title over the suit property. Then, the relief of mandatory injunction can be granted with consequential relief of permanent injunction.
26. If the plaintiff desires to seek relief of mandatory injunction for removal of encroachment, then firstly, he has to establish the title over the property and it is burden on the plaintiff to prove the title. After establishing the title by seeking relief of declaration, then the plaintiff is entitled to relief of decree of mandatory injunction with consequential relief of permanent injunction. Otherwise, a mere suit for mandatory injunction in the absence of relief of declaration where title is in
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NC: 2026:KHC-D:440 RSA No. 1026 of 2007 HC-KAR dispute, the suit for mere mandatory injunction is not maintainable.
27. Therefore, considering the above principles of law laid down by the Hon'ble Supreme Court and this Court and considering the above facts, the defendant has raised dispute regarding the title of the plaintiff over the suit property on which gobar gas plant is constructed. Also, this is discussed by the Trial Court in its judgment, which is confirmed by the First Appellate Court. When the Trial Court took a specific opinion that there is dispute regarding title over the suit properties, then both the Trial Court and the First Appellate Court ought to have dismissed the suit, but granting decree of mandatory injunction in the absence relief of declaration is not maintainable. Hence, substantial question of law is answered holding that both the First Appellate Court and the Trial Court are not justified in decreeing the suit for mandatory injunction in the absence of relief of declaration. Thus, both the judgment and decree passed by the Trial Court and the First Appellate Court are liable to be set aside.
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28. However, the plaintiff is given liberty to file a comprehensive suit for declaration to establish the title over the suit schedule properties and also for other reliefs as deems fit by the plaintiff.
29. In the result, I proceed to pass the following:
ORDER i. The Regular Second Appeal is allowed.
ii. The judgment and decree dated 22.01.2007 passed in R.A.No.308/1999 on the file of II Additional Civil Judge (SR.DN.), Belagavi, and the judgment and decree dated 31.08.1999 passed in O.S.No.72/1992 on the file of Additional Civil Judge (JR.DN.) and JMFC, Khanapur, are hereby set aside.
iii. However, liberty is reserved to the plaintiff to file a comprehensive suit for declaration for establishing his title over the suit open space and for other reliefs as deems fit by the plaintiff.
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NC: 2026:KHC-D:440 RSA No. 1026 of 2007 HC-KAR iv. No order as to costs.
Sd/-
(HANCHATE SANJEEVKUMAR) JUDGE PMP Para Nos.1 to 24 SRA Para Nos.25 to end CT-AN List No.: 1 Sl No.: 48