Karnataka High Court
Sri M Shamaiah @ M Shama Reddy vs The Karnataka Milk Federation on 5 July, 2022
Author: B.M.Shyam Prasad
Bench: B.M.Shyam Prasad
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JULY , 2022
BEFORE
THE HON'BLE MR.JUSTICE B.M.SHYAM PRASAD
MISCELLANEOUS FIRST APPEAL NO.2581/2016 (CPC)
BETWEEN:
1. SRI M. SHAMAIAH @ M SHAMA REDDY
S/O LATE MUNISWAMAPPA
AGED ABOUT 75 YEARS,
2. SRI M DORESWAMY REDDY
S/O LATE MUNISWAMAPPA
AGED ABOUT 70 YEARS,
3. SRI M. NAGARAJ
S/O LATE MUNISWAMAPPA
AGED ABOUT 65 YEARS,
4. SRI P RAJASHEKAR
S/O LATE PAPAIAH
AGED ABOUT 55 YEARS,
5. SRI P SATHYANARAYANA
S/O LATE PAPAIAH
AGED ABOUT 53 YEARS,
6. SRI M P SUDHAKAR
S/O LATE PAPAIAH
AGED ABOUT 51 YEARS,
7. SRI P CHANDRASHEKAR
S/O LATE PAPAIAH
AGED ABOUT 49 YEARS
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8. SRI P RAMESH
S/O LATE PAPAIAH
AGED ABOUT 47 YEARS,
ALL ARE RESIDING AT M S NAGAR,
MARATHAHALLI EXTENSION
MUNNEKOLALA VILLAGE,
VARTHUR HOBLI
BANGALORE EAST TALUK
BANGALORE - 560037.
... APPELLANTS
(BY SRI B.K. SAMPATH KUMAR, SR. COUNSEL A/W
SRI H.N.THAMMAIAH KUMAR, ADVOCATE )
AND:
THE KARNATAKA MILK FEDERATION
POORNIMA BUILDINGS,
1ST CROSS, J C ROAD,
BANGALORE - 560 002
REPRESENTED BY ITS
MANAGING DIRECTOR.
... RESPONDENT
(BY SRI. S.S. NAGANAND, SR. COUNSEL A/W
SRI V.R.VIKRAM, ADVOCATE)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF
CPC, AGAINST THE ORDER DATED 24.03.2016 PASSED ON
IA NO.1 IN O.S NO.25924/2015 ON THE FILE OF THE XIII
ADDITIONAL CITY CIVIL AND SESSION JUDGE,
MAYOHALL, BENGALURU, DISMISSING IA NO.I FILED U/O
39 RULE 1 AND 2 OF CPC.
THIS APPEAL COMING ON FOR PRONOUNCEMENT
OF ORDERS THIS DAY, THIS COURT MADE THE
FOLLOWING:
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JUDGMENT
This plaintiffs in O.S. No.25924/2015 on the file of the XIII Additional City Civil and Sessions Judge, Bengaluru [for short, 'the civil Court'] have impugned the civil Court's Common Order1 dated 24.03.2016. The civil Court by this impugned order has rejected the appellants' application [I.A No. I] under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 [for short, 'the CPC]' for temporary injunction against the respondent interfering with the appellants' possession and enjoyment of an immovable property, which is described as measuring 13 guntas in Sy.No.95 with certain boundaries, but without mentioning either the 1 The civil Court by this Common Order has also rejected the respondent's application under Order VII Rule 11 of CPC, and the learned Senior Counsels for the parties are categorical that the respondent has not challenged the rejection of this application.
-4-Village or the Hobli or the Taluk2. This property is hereinafter referred to as 'the Subject Property'.
2. Sri. B.K. Sampath Kumar and Sri S.S. Naganand, the learned Senior Counsels are heard respectively for the appellants and the respondent. The parties, for convenience, are referred to as they are arrayed before the civil Court. The present suit in O.S. No.25924/2015 is the third round of litigation between the plaintiffs [their family members] and the defendant. Therefore, the details of these proceedings are mentioned first before recording the controversy and the rival claims in the present suit. The details of the earlier proceedings are as follows:
3. The first round of litigation is in O.S. No. 1977/1987:
3.1 The second plaintiff, Sri M.Doreswamy Reddy, has filed this suit for permanent injunction 2 However, it is obvious from the records that the dispute is with regard to an extent of 13 guntas in Sy.No. 95 of Munnekolala Village, Varthur Hobli, Bangalore East Taluk.-5-
restraining the defendant from interfering with the possession of an extent of 26 Guntas in Survey No. 95 of Munnekolala Village, Varthur Hobli, Bangalore East Taluk [which would include the subject property]. He has asserted that his four brothers, his father - Sri Muniswamappa @ Muniswamy Reddy and he, were in possession of the land in survey No.95 of Munnekolala Village, Varthur Hobli, Bangalore East Taluk and they have entered into a partition dividing this land. There is a temple in the portion allotted to his brother, Sri.Papaiah Reddy. This land is notified on 10.06.1982 for acquisition and the acquisition proceedings are challenged in a writ proceeding before this Court. There was an effort to disturb the possession even during the pendency of the writ petition. However, this suit is dismissed for default, but after his application for temporary injunction is rejected by order dated 04.08.1990 referring to the allotment of this land in favour of the defendant, the defendant in this suit too. -6-
4. The second round of litigation is in O.S. No. 9544/1998 and O.S. No. 2478/1993:
4.1 Sri M. Krishnappa, another son of late Muniswamappa, has filed the suit in O.S. No. 9544/1998 for declaration and permanent injunction against the State Government and the defendant asserting ownership and possession of 26 Guntas in Sy.No. 95 of Munnekolala Village, Varthur Hobli, Bangalore East Taluk [including the subject property].
His brother, Sri. Papaiah Reddy3 has filed the earlier suit in O.S. No. 2478/1993 for permanent injunction against the very parcel of property, but the suit is only against the defendant. On the demise of these plaintiffs, their legal heirs [the plaintiffs in the present suit] have continued the suits, and these suits are dismissed by common judgement and decree dated 29.08.2009.
3 Sri M. Krishnappa is the first to third plaintiffs' brother and the remaining plaintiffs are the children of Sri Papaiah Reddy. -7- 4.2 These plaintiffs/legal heirs contended that the lands in Sy. No. 95 of Munnekolala Village, Varthur Hobli, Bangalore East Taluk was originally owned by Sri Narayanappa, and he transferred this land in favour of Sri Patel S Narayana Reddy in the year 1940. Their father/grandfather, Sri Muniswamappa, purchased this property from him. The sale deed executed in favour of Sri Muniswamappa did not specifically mention this land but was part of the transfer, and Sri Muniswamappa was in possession of this land openly asserting title hostile to the State Government. They asserted that Sri Muniswamappa had constructed Swami Ayyappa Temple and a Navaragraha Temple and other commercial establishments in this land in Sy. No.95 of Munnekolala Village, Varthur Hobli, Bangalore East Taluk.
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4.3 The defendant resisted the plaintiffs' claim for declaration and permanent injunction contending inter alia that the State Government, by order dated 21.05.1990, had allotted the land in Sy. No. 95, including the extent measuring 26 Guntas, of Munnekolala Village, Varthur Hobli, Bangalore East Taluk for an upset price of Rs.15,000/- per acre. The defendant had paid a total sum of Rs.63,635/- towards the Development Charges, and the Local Authority, Mahadevapura City Municipal Council, also issued necessary No-Objection Certificate acknowledging its possession of this property.
4.4 The plaintiffs in these suits/their legal heirs and the defendant did not dispute that the Bangalore Development Authority [BDA] had acquired an extent of 13 Guntas out of the 26 Guntas mentioned in the plaints and as such the controversy for decision was on whether the plaintiffs/their legal heirs were entitled for -9- declaration of title and permanent injunction against interference with this extent of 13 guntas. The civil Court, after trial and in consideration of the material placed on record, opined that the plaintiffs therein/their legal heirs would not be entitled for declaration of title because they had failed to establish the necessary ingredients to prove adverse possession. The civil Court also opined that merely because they continued in possession, they would not have any interest in such land4.
4.5 On the question of granting permanent injunction, the civil Court opined that because these 4 As the present suit is based on the civil Court's finding in this regard, the material part must be extracted, and it reads as follows:
"It is the consistent case of the fourth defendant* that the suit schedule property, is a gomal land and the revenue authorities, were its owners. Thus, the ingredients of law of adverse possession, is missing in this case. Merely because, they are in continuous possession and enjoyment of the suit schedule property, the plaintiffs cannot claim any right, title or interest over it from 1943 and onwards. *[The defendant in the present suit]
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plaintiffs/legal heirs cannot be held to be in lawful possession and enjoyment of the property, they would not be entitled to permanent injunction. Sri M. Krishnappa's legal heirs [the plaintiffs in O.S. No. 9544/1998 for declaration of title and permanent injuntion] did not challenge this common judgement and decree dated 29.08.2009, but Sri M. Papaiah Reddy's legal heirs [the plaintiff/s in O.S. No. 2478/1993] challenged the same before this Court in RFA No.1059/2009 insofar as the dismissal of their suit.
4.6 It was argued on behalf of the plaintiffs in the appeal that they had placed material on record to establish their settled possession of the subject property and the unconditional dismissal of the suit for permanent injunction would result in miscarriage of justice and lead to their summary dispossession from the subject property. This Court, considering such
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contentions, dismissed this appeal by order dated 09.07.2015. This Court's reasoning reads as under:
"In the above facts and circumstances, apart from the fact that the plaintiff would have to fail in this appeal in not having chosen to challenge the judgement and decree in the suit claiming larger relief in respect of the very suit property, namely a declaration as to the ownership, it is also to be noticed that in both this, as well as in the other suit, the plaintiff was asserting his possession over the suit schedule property and claiming to have perfected his title by adverse possession and therefore claiming ownership of the property and that claim having been taken to its logical conclusion and having been rejected by the trial court, it would not be open for the appellant to now dilute the claim and simply seek to sustain his possession on the basis of so-called settled possession. A person seeking to claim ownership of the property would never be satisfied with a claim for
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settled possession and therefore the plaintiff having come to court with a nebulous claim, cannot have the luxury of election in claiming as the owner as also having been failed to establish his ownership, seeking to restrict the relief to one of continued possession. Such continued possession could not be legal possession, but illegal possession. Therefore the plaintiff would not be entitled to any such relief."
This Court's order dated 09.07.2015 is called in question before the Hon'ble Supreme Court in Special Leave to Appeal (C) No. 25264/2015, and this Special Leave Petition is dismissed on 15.09.2015. The present suit is filed after this order.
5. The plaintiffs contend in the present suit that notwithstanding the common judgement and decree dated 29.08.2009 in O.S. No. 2478/1993 and O.S. No. 9544/1998, the defendant has not taken possession of the subject property nor disturbed their possession and
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as such, they are entitled to maintain a suit for injunction to protect their possession of the subject property. They specifically contend that the defendant cannot dispossess them from the suit schedule property without due process of law and it is open to the defendant to file a suit for recovery of possession in accordance with law. The defendant without taking recourse to law is trying to forcibly dispossess them from the subject property.
6. The defendant has filed a detailed written statement referring to the earlier proceedings. As regards the plaintiffs' case that the defendant could dispossess them from the subject property only in accordance with law, the defendant has asserted that the plaintiffs' claim for permanent injunction on the ground that they are in possession of the subject property is rejected and the present suit is a gross abuse of the process of the Court. The defendant has
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also asserted that the present suit is barred by both constructive res judicata and res judicata.
7. The plaintiffs' application for temporary injunction and the defendant's objections thereto are based on these respective claims. The civil Court, referring to the judgement and the conclusions in the earlier proceedings, has opined that the plaintiffs are in unlawful possession and enjoyment of the subject property, and if their possession is unlawful, they will not be entitled to the equitable relief of injunction. The civil Court has also opined that the proposition of law that a trespasser cannot seek injunction against the true owner, must apply to the present case.
8. Sri B.K. Sampath Kumar, the learned Senior Counsel for the appellants, relies upon a set of photographs annexed to the appeal memorandum [as Annexure- K series] and the defendant's Managing Director's letter dated 23.09.2015 addressed to the
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Additional Director General of Police, Bengaluru, Metropolitan Task Force, BBMP to argue in support of the appeal. The learned Senior Counsel submits that the photographs establish that the subject property comprises of temples and certain commercial establishments within their precincts, which are constructed by the plaintiffs and their family members. These photographs, and the finding in the earlier proceedings, establish that the plaintiffs are in possession of the subject property. The letter dated 23.09.2015 demonstrates that the defendant, without taking possession of the subject property through the Court, is trying to take possession with the assistance of Police/Task Force.
9. Sri B.K. Sampath Kumar submits that, with the plaintiffs thus establishing possession and efforts to dispossess them without due process of law through the Court, they would be entitled in law for protection
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against such forcible dispossession. He relies upon the decision of this Court in Sathyam @ Ramaiah and others v. Karnataka Milk Federation Cooperative Ltd5 and submits that no person can be authorised to take law into their own hands, and if it is shown that a trespasser is in settled possession, such trespasser cannot be thrown out except in accordance with the process established by law. He draws the attention of this Court to the following enunciation in this decision:
"No person is authorised to take the law in his hands. No doubt, if the act of trespass begins and it is in the process of being fructified in settled possession, the owner may throw out the person who is trying to interfere with the property or with his possession and enjoyment thereof. But once the possession of trespasser is settled, then it cannot be disturbed and he cannot be thrown out except in accordance with process established by law and by availing of remedies available under law."
5 ILR 1999 Karnataka 301
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The learned Senior Counsel submits that this Court's exposition as aforesaid is based on the decision of the Hon'ble Supreme Court in Puran Singh and others v. State of Punjab6, and in the facts and circumstances of the present case, this proposition would squarely apply.
10. Sri B.K. Sampath Kumar argues that the question whether the plaintiffs' possession of the subject property has matured into settled possession is a matter for trial. Until this is decided after trial, the defendant, which has not initiated any proceedings for recovery of possession of the subject property, cannot recover possession through the intervention of the Police/Task Force in an extrajudicial manner7. The 6 (1975) 4 SCC 518 7 The learned Senior Counsel relies upon the decision of the Hon'ble Supreme Court in Krishna Ram Mahale (Dead) by his LRS versus Mrs. Shobha Venkat Rao reported in (1989)4 SCC 131 to support his submission that no person is permitted in law to take forcible possession and possession must be recovered only through a Court.
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learned Senior Counsel concludes that the civil Court has overlooked this material circumstance and therefore, this Court must intervene and pass suitable orders to ensure that the plaintiffs are not dispossessed without due process of law during the pendency of the suit.
11. Sri S.S. Naganand, the learned Senior Counsel for the defendant, submits that on earlier occasions8 the plaintiffs' requests for both temporary and permanent injunction for the same property are rejected and as such, the parties' rights to the subject property are finally decided by the Courts. The plaintiffs have not even challenged the dismissal of the suit for declaration of title based on adverse possession. The plaintiffs, in the guise of a new suit for permanent injunction, cannot be permitted to re-agitate the question of possession. In the circumstances of the 8 In OS No. 1977/1987, OS No. 2748/1993 and O.S. No.9544/1998,
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case, any protection, even interim, to the plaintiffs would be impermissible in law. The learned Senior Counsel, relying upon a recent decision of the Hon'ble Supreme Court in Bangalore Development Authority v. N. Jayamma9, submits that if the plaintiffs have failed in their suit for declaration and permanent injunction, they would not be entitled for any equity.
12. Sri S.S. Naganand, who relies upon a series of decisions10 to buttress his next limb of argument, canvasses that a person in unlawful possession of an immovable property may, because of the proposition that no person can take law into his own hands, be granted injunction against the whole world, but such injunction cannot be granted against the true owner, especially when there is adjudication in favour of the 9 In Civil Appeal No. 2238/2016.
10 Dalpat Kumar and another v. Prahlad Singh and Others (1992)1 SCC 719, Mahadeo Savlaram Shelke v. Pune Municipal Corporation and another (1995)3 SCC 33, and Sopan Sukhdeo Sable v. Assistant Charity Commissioner, (2004) 3 SCC 137
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true owner on both the claim to title and permanent injunction in earlier proceedings. He submits that the judgement and decree in O.S. No. 9544/1998 and O.S. No.2478/1993, which are confirmed by this Court in RFA No. 1059 of 2009 and by the Hon'ble Supreme Court with the dismissal of the SLP, is not only a vindication of the defendant's title to the subject property but also a decision on the nature of the plaintiffs' possession of the subject property and the claim to injunction based on possession.
13. In the light of the rival submissions, the question for consideration is: "whether the civil Court has erred in rejecting the plaintiffs' application for temporary injunction justifying this Court's interference in exercise of the appellate jurisdiction."
14. The plaintiffs have failed both in the suit for permanent injunction [O.S. No. 2478/1993] and in the suit for declaration of title and permanent injunction [in
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O.S. No. 9544/1998]. But the plaintiffs assert that because they are in settled possession of the subject property and they are not dispossessed through the Court in accordance with law, they would be entitled for temporary injunction. They rely upon the proposition that even a trespasser, if he/she is able to establish settled possession, would be entitled for injunction even against the true owner. On the other hand, the defendant contends that its title to the subject property and defence against grant of permanent injunction stand vindicated with the dismissal of the aforementioned suits. In that event, there cannot be injunction in favour the plaintiffs. If there is any injunction, that would be contrary to the salient law that there cannot be an injunction against the true owner.
15. It is obvious from the above that if the plaintiffs rely upon one settled proposition, the
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defendant relies upon another. Therefore, the question is which of these two propositions must prevail in the facts and circumstances of the case. The Hon'ble Supreme Court in one of its recent decisions in Padhiyar Prahladji Chenaji (Deceased) through LRs v. Maniben Jagmalbhai (Deceased) through LRs11 has considered the interplay between these two propositions in, what this Court would consider, very comparable circumstances, and it is held as follows:
"44. ....................It is the contention on behalf of the plaintiff that once the plaintiff is found to be in possession, her possession cannot be disturbed except in due process of law and the defendant No.1 though may be the true owner has to file a substantive suit for recovery of possession. While considering the aforesaid submission, the decision of this Court in the case of Maria Margarida Sequeira Fernandes Vs. Erasmo Jack de Sequeira, (2012) 5 SCC 370 is required to be referred to. What is meant by due process of law has been explained by this court in paragraph 79, which reads as under:-
11 2022 SCC Online SC 258
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"79. Due process of law means that nobody ought to be condemned unheard. The due process of law means a person in settled possession will not be dispossessed except by due process of law. Due process means an opportunity to the defendant to file pleadings including written statement and documents before the court of law.
It does not mean the whole trial. Due process of law is satisfied the moment rights of the parties are adjudicated upon by a competent court."
45. In the said decision, this Court has approved the following findings of the High Court of Delhi in Thomas Cook (India) Ltd. Vs. Hotel Imperial (2006) 88 DRJ 545 :-
"28. The expressions 'due process of law', 'due course of law' and 'recourse to law' have been interchangeably used in the decisions referred to above which say that the settled possession of even a person in unlawful possession cannot be disturbed 'forcibly' by the true owner taking law in his own hands. All these expressions, however, mean the same thing-ejectment from settled possession can only be had by recourse to a court of law. Clearly, 'due process of law' or 'due course of law', here, simply mean that a person in settled possession cannot be ejected without a court of law having adjudicated upon his rights qua the true owner.
Now, this 'due process' or 'due course' condition is satisfied the moment the
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rights of the parties are adjudicated upon by a court of competent jurisdiction. It does not matter who brought the action to court. It could be the owner in an action for enforcement of his right to eject the person in unlawful possession. It could be the person who is sought to be ejected, in an action preventing the owner from ejecting him. Whether the action is for enforcement of a right (recovery of possession) or protection of a right (injunction against dispossession), is not of much consequence. What is important is that in either event it is an action before the court and the court adjudicates upon it. If that is done then, the 'bare minimum' requirement of 'due process' or 'due course' of law would stand satisfied as recourse to law would have been taken. In this context, when a party approaches a court seeking a protective remedy such as an injunction and it fails in setting up a good case, can it then say that the other party must now institute an action in a court of law for enforcing his rights i.e. for taking back something from the first party who holds it unlawfully, and, till such time, the court hearing the injunction action must grant an injunction anyway? I would think not. In any event, the 'recourse to law' stipulation stands satisfied when a judicial determination is made with regard to the first party's protective action."
16. This Court must opine that with this enunciation, and the conclusions in the earlier
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proceedings in OS No. 9544/1998 and OS No. 2478/1993, the plaintiffs cannot succeed in their application for temporary injunction on the ground that they must be dispossessed from the subject property only through the Court. The plaintiffs' claim that they are in settled possession has been considered by this Court, and this Court has not only opined that the possession of the subject property is unlawful but has also labelled their claim for settled possession as a 'so- called settled possession' while rejecting the prayer for permanent injunction. This would be an adjudication of the plaintiffs' claim for injunction, and a compliance with the requirement of due process as held by the Hon'ble Supreme Court in its recent decision.
17. The civil Court could not have ignored the earlier determination as aforesaid in deciding on the merits of the plaintiffs' application for temporary injunction and therefore, it cannot be opined that the
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civil Court has exercised its discretion perversely or arbitrarily or contrary to law in rejecting the application. This Court must also refer to the settled principle that unless it is shown that the exercise of discretion by the original Court is either perverse or arbitrary or contrary to law, the appellate Court, simply because it could have exercised discretion differently, would not interfere with the exercise of such discretion. As such, there is no reason for interference in this appeal.
For the foregoing, the appeal must be dismissed and is accordingly dismissed.
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JUDGE nv Ct:sr