Karnataka High Court
Smt Narasamma vs D S Narasi Reddy on 19 September, 2013
Author: H.G.Ramesh
Bench: H.G.Ramesh
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WP.No.31126/2012
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 19TH DAY OF SEPTEMBER 2013
R
BEFORE
THE HON'BLE MR. JUSTICE H.G.RAMESH
WRIT PETITION No.31126/2012 (GM-CPC)
BETWEEN:
1. SMT. NARASAMMA
W/O. LATE VENKATARAYAPPA
AGED ABOUT 74 YEARS
2. VENKATESHAPPA
S/O. NADIPI GADDAIAH
AGED ABOUT 46 YEARS
3. T.C.MADDI REDDY
S/O. CHIKKAPPA
AGED MAJOR
ALL THE PETITIONERS ARE
R/AT THATTIPALLI VILLAGE
SOMENAHALLI HOBLI
GUDIBANDA TALUK - 561 209
CHIKKABALLAPURA DISTRICT ...PETITIONERS
(BY SRI J.R. JAGADISH, ADVOCATE)
AND:
1. D.S. NARASI REDDY
S/O. LATE D.N. SUBBI REDDY
AGED ABOUT 61 YEARS
2. D.S. NAGI REDDY
S/O. LATE D.N. SUBBI REDDY
AGED ABOUT 46 YEARS
BOTH ARE RESIDENT OF
DEVIREDDIPALLI VILLAGE
KASABA HOBLI
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WP.No.31126/2012
BAGEPALLI TALUK - 561 207
CHIKKABALLAPUR DISTRICT ...RESPONDENTS
(BY SRI SHIVA REDDY FOR
SRI G. GANGI REDDY, ADVOCATE FOR R2;
R1 SERVED BUT UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DATED 22.8.2012 PASSED BY THE CIVIL JUDGE
(JR.DN.) AND JMFC, AT GUDIBANDA, IN O.S. No.178/2008 VIDE
ANNEXURE-A AND CONSEQUENTLY ALLOW THE APPLICATION-
I.A.No.17 DATED 21.8.2012 FILED BY THE PETITIONERS VIDE
ANNEXURE-D.
THIS WRIT PETITION COMING ON FOR ORDERS, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
H.G.RAMESH, J. (Oral):
In suits instituted for grant of permanent prohibitory injunction relating to immovable properties, whether issue of title will be directly and substantially in issue, is the question that needs an answer in this writ petition.
Answer: In a suit for Injunction simpliciter, there is no need to frame any issue relating to title as issue of title will not be directly and substantially in issue except where the suit property is a vacant site or a vacant non-agricultural land and a cloud is raised over the plaintiff's title in respect of such vacant site or land.-3- WP.No.31126/2012
A suit for grant of permanent prohibitory injunction without seeking the relief of declaration of title is maintainable. The mere fact that the question of title may have to be gone into in deciding whether an injunction can be given or not is no justification for holding that the suit is for declaration of title and for injunction.
2. This writ petition is by the defendants and is directed against an interlocutory order dated 22.08.2012 passed by the Court of the Civil Judge, Gudibande in the suit in O.S.No.178 of 2008 rejecting their application to frame an issue regarding title in respect of the suit land. The suit is one for grant of permanent injunction to restrain the petitioners- defendants from interfering with the plaintiffs' possession of the suit property which is an agricultural land measuring 2 acres 7 guntas in Gudibande taluk. The trial court, by the impugned order, has rejected the application on the ground that there is no need to frame an issue regarding title in a suit for injunction simpliciter. -4- WP.No.31126/2012
3. I have heard the learned counsel for the parties and perused the impugned order. Learned counsel for the petitioners submitted that, though the suit is only for grant of permanent Injunction, as the petitioners- defendants have disputed the plaintiffs' title to the suit property, the trial Court ought to have framed an issue regarding title of the suit land. In support of his submission, he relied on a two Judge Bench decision of the Supreme Court in Anathula Sudhakar v. P.Buchi Reddy [(2008)4 SCC 594].
4. In my opinion, the impugned order is in conformity with the decision of the Supreme Court in Anathula Sudhakar wherein the Supreme Court has summarized the position of law in regard to suits for prohibitory injunction relating to immovable properties in the following words:
"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 -5- WP.No.31126/2012 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 the 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 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[(2005)6 SCC 202]). 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 straightforward, 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 will not be decided in suits for injunction. But persons having clear title and possession suing -6- WP.No.31126/2012 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 the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case."
(Underlining supplied)
5. The observations made by a two Judge Bench of the Supreme Court in Ramji Rai vs. Jagdish Mallah [(2007)14 SCC 200] also needs to be noticed:
"10. .................. In the case of a permanent injunction based on protection of possessory title in which the plaintiff alleges that he is in possession, and that his possession is being threatened by the defendant, the plaintiff is entitled to sue for mere injunction without adding a prayer for declaration of his rights. (See Mulla's Indian Contract and Specific Relief Acts, 12th Edn., p. 2815)
11. In A.L.V.R. Ct. Veerappa Chettiar v. Arunachalam Chetti (AIR 1936 Mad 200), it has been held that mere fact that the question of title may have to be gone into in deciding whether an injunction can be given or not is not any justification for holding that the suit is for a declaration of title and for injunction. There can be a suit only for an injunction. The present suit is only for permanent injunction and, therefore, the lower appellate court should have, on the facts and circumstances of this case, confined itself to its dismissal only on the ground that the appellants have failed to show that they were in possession. This has been done but the -7- WP.No.31126/2012 declaration that the appellants are not the owners, was not necessary."
(Underlining supplied)
6. In this context, the observations of a three Judge Bench of the Supreme Court in Rame Gowda vs. M. Varadappa Naidu [(2004)1 SCC 769] are also relevant:
"12. ....................................................... In Fakirbhai Bhagwandas v. Maganlal Haribhai (AIR 1951 Bom 380) a Division Bench spoke through Bhagwati, J. (as his Lordship then was) and held that it is not necessary for the person claiming injunction to prove his title to the suit land. It would suffice if he proves that he was in lawful possession of the same and that his possession was invaded or threatened to be invaded by a person who has no title thereof. We respectfully agree with the view so taken. ............................"
(Underlining supplied)
7. In the light of the above three decisions of the Supreme Court, in my opinion, in a suit for Injunction simpliciter, there is no need to frame any issue relating to title as issue of title will not be directly and substantially in issue though it may arise incidentally or collaterally except where the suit property is a vacant site or a vacant non-agricultural land. In respect of vacant sites or vacant non-agricultural lands, the -8- WP.No.31126/2012 principle is possession follows title, and therefore, the rightful owner will be deemed to be in possession of such property. Hence, in such cases, if a cloud is raised over the plaintiff's title, necessarily the Court will have to examine and determine the title, to give a finding on the aspect of possession. However, if there is no bona fide denial of title, it is sufficient to examine the plaintiff's prima facie title in respect of such vacant site or land to record a finding on the aspect of possession. I may add that, if a trespasser without any claim to title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff.
8. As held by the Supreme Court in Ramji Rai and Rame Gowda, a suit for grant of permanent prohibitory injunction without seeking the relief of declaration of title is maintainable. The mere fact that the question of title may have to be gone into in deciding whether an injunction can be given or not is no justification for holding that the suit is for declaration of title and for injunction.
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9. In my opinion, the order of the trial court is in conformity with the law laid down by the Supreme Court in the three decisions referred to above, and hence, no interference is warranted. The writ petition is accordingly dismissed. No order as to costs.
Petition dismissed.
Sd/-
JUDGE hkh.