Karnataka High Court
Between Smt. Girajawwa And Others vs Smt. Basawwa on 3 July, 1990
Equivalent citations: AIR1991KANT51, 1990(3)KARLJ231, AIR 1991 KARNATAKA 51
JUDGMENT
1. This is a defendants' second appeal having unsuccessfully resisted the respondent-plaintiff's suit for possession and mandatory injunction.
2. The respondent-plaintiff filed O.S. No. 137/1983 in the Court of the Munsiff at Saundatti inter alia seeking the relief of possession from the defendants of the suit schedule property and a mandatory injunc-
tion directing the defendants to construct a wall between their property and hers which the defendants had allegedly demolished.
3. It was her case that she was the purchaser of the suit schedule property from the previous owner, one Maruti Shetteppa Kallur, who had obtained his title by virtue of a partition between himself and the defendants. The defendants had unlawfully dispossessed her and demolished the wall and interfered with her peaceful possession thereby.
4. The defendants resisted the suit by bald denial of all allegations of the plaintiff and contending that she was not the owner of the property; that the suit was not maintainable etc. On such pleadings as many as five issues were framed as follows :
(1) Does plaintiff prove that she is the owner of the suit IA property as described in the plaint?
(2) Does she prove that the defendants have forcibly dispossessed her from the suit properties?
(3) Does plaintiff prove that the defendants have damaged the suit AB wall as shown in the sketch?
(4) Whether the suit in the present form is maintainable?
(5) Is plaintiff entitled to the reliefs as prayed for?
Issue No. 4 has been dealt with by the trial Court as follows :
"10. Issue No. 4 : This suit has been filed for the possession of the suit house, by the plaintiff as owner and also for mandatory injunction to construct the AB wall which was damaged by the defendants. There is no substance in the contention of the counsel for the defendants that the suit in the present form is not maintainable because the plaintiff has alleged in the plaint and as well as she has stated in her evidence that the defendants have dispossessed her from the suit house after she got the possession. So she cannot file the suit for declaration that she is the owner and as she has been dispossessed, she has brought this suit for possession and also for mandatory injunction against the defendants and in my opinion the suit in the present form is maintainable. Hence, I answer issue No. 4 in the affirmative."
In the result, the suit was decreed accepting the version put forward by the plaintiff. The defendants aggrieved by the trial Court's judgment, filed the appeal in the Court of the Civil Judge, Bailhongal, in RA. No. 7/1986 on the file of that Court. The appeal came to be dismissed affirming the findings recorded by the trial Court. Therefore, the present appeal.
5. The only point urged before me as a substantial question of law is that when the title was disputed by the defendants, the suit without a plea for declaration of title could not have been maintained. I do not think that question arises at all for consideration in this case. The suit pleading was that plaintiff who as in possession was unlawfully dispossessed by the act of the defendants and therefore the suit was filed under the rights conferred by S. 6 of the Specific Relief Act. Therefore, question of seeking declaration of title would not in such a suit arises. If she proves the illegal act of dispossession it will be sufficient to give her the cause of action as well as the relief.
6. In addition she had also proved her title incidentally as well as her dispossession by the defendants.
7. Both, the lower appellate Court as well as the trial Court have correctly decided the issues raised in the suit. It is most unfortunate that it has failed to mention S. 6 of the Specific Relief Act and the suit was maintainable under that section. That does not in any way affect the correctness and legality of the findings recorded.
8. In the result, this is not a fit case in which this Court should interfere. The appeal is rejected.
9. Appeal dismissed.