Karnataka High Court
Sri. Subba Reddy vs C. Mahadeva on 27 June, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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NC: 2024:KHC:23985
CRP No. 37 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
CIVIL REVISION PETITION NO. 37 OF 2024 (IO)
BETWEEN
SRI. SUBBA REDDY
S/O VENKATA SUBBAREDDY
AGED ABOUT 53 YEARS
PROPRIETOR OF BSR BUILDERS
AND DEVELOPERS
HAVING THEIR OFFICE AT NO 100/37/5
NGR LAYOUT, ROOPENA AGRAHARA
NEAR SILK BOARD
BEHIND MAHINDRA SHOWROOM
HOSUR ROAD, BENGALURU - 560068
PRESENTLY AT
P1, BST TOWERS
VARANASI MAIN ROAD
ANAND RAO CIRCLE
T.C. PALYA ROAD
NEAR MOTHER THERESA SCHOOL
Digitally signed K.R.PURAM, BANGALORE-560036
by ...PETITIONER
NARAYANAPPA
LAKSHMAMMA (BY SRI. SHARATH S. GOWDA., ADVOCATE)
Location: HIGH
COURT OF AND:
KARNATAKA
1. C. MAHADEVA
S/O CHENNIGARAYA SHETTY
AGED ABOUT 64 YEARS
DEPARTMENT OF ANCIENT HISTORY
AND ARCHAEOLOGY
KANANDA UNIVERSITY HAMPI
VIDYARANYA - 583276
2. SRI. MANJUNATHA
S/O K.H. RAMEGOWDA
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NC: 2024:KHC:23985
CRP No. 37 of 2024
AGED ABOUT 47 YEARS
NO.1174, PADVARE ROAD
1ST CROSS, 4TH STAGE
TK LAYOUT, MYSORE-570022
3. DR. SRINIDHI
S/O DWARAKANATH
AGED ABOUT 52 YEARS
R/AT NO.1309
RAJEEYA RANJITHA
15TH CROSS, 2ND PHASE
GIRINAGAR, BENGALURU - 560085
4. SRI. ANIL KUMAR
S/O T.V. SRINIVASA MURTHY
AGED ABOUT 67 YEARS
R/AT NO.2, 9TH MAIN
BSK 2ND STAGE
BENGALURU-560070
5. NALINA MOHAN VARMA
W/O M K MOHAN VARMA
D/O LATE RAGHAVENDRA VARMA
AGED ABOUT 85 YEARS
R/AT NO.15, AKSHAYA
17TH A MAIN, 1ST CROSS
2ND PHASE, J.P.NAGAR
BENGALURU - 560078
... RESPONDENTS
(BY SRI.MANIAN.K.B.S., ADVOCATE FOR R1;
NOTICE TO RESPONDENT NO.2 TO 5 IS DISPENSED WITH VIDE
ORDER DATED 10.6.2024)
THIS CRP IS FILED UNDER SECTION 115 OF CPC., AGAINST
THE ORDER DATED 10.7.2023 PASSED BY XII ADDL. CITY AND
SESSIONS JUDGE AT BANGALORE CITY (CCH-27) CITY IN OS
NO.3461/2011 ON IA NO.12 FILED BY THE PETITIONER UNDER
ORDER 7 RULE 11 R/W 151 OF C.P.C. IN REJECTING THE
APPLICATION AND ETC.
THIS CIVIL REVISION PETITION COMING ON FOR HEARING -
INTERLOCUTORY APPLICATION AND HAVING BEEN RESERVED FOR
ORDERS ON 18.06.2024, THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
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CRP No. 37 of 2024
ORDER
1. The Petitioner is before this Court seeking for the following reliefs:
a. Call for the entire records in OS No.3461/2011 on the file of the XII Addl. City Civil and Sessions Judge at Bangalore City (CCH-27).
b. Set aside the impugned order dated 10.7.2023 passed by XII Addl. City and Sessions Judge at Bangalore City (CCH-27) City in OS No.3461/2011 on IA No.12 filed by the Petitioner under Order 7 Rule 11 r/w 151 of C.P.C. in rejecting the application.
And c. Grant such other orders as this Hon'ble Court deems fit in the facts and circumstances of the case in the interest of justice.
2. Respondent No.1 had filed a suit in OS No.3461/2011 seeking for the following reliefs; WHEREFORE, the Plaintiff humbly prays that this Hon'ble Court may be pleased to pass a judgement against the defendants -
A) Directing the defendants or any other person claims there right under them to remove the fence / compound wall over the schedule property preventing the Plaintiff from entering the schedule property. B) restraining the defendants their agent their servants are anybody claiming under them from interfering with the plaintiffs peaceful possession and enjoyment of the suit schedule property C) In the event of the defendant fails to remove the fence compound wall over the schedule property inspite -4- NC: 2024:KHC:23985 CRP No. 37 of 2024 of this being decreed in favour of the Plaintiff, appoint a suitable person to remove the compound wall over the schedule property at the cost of the defendants D) Grant cost of this suit.
3. The Petitioner was defendant No.5-therein, the respondents No.2 to 5 were defendants No.1 to 4 therein. The Petitioner had filed an application under Order VII Rule 11 read with Section 151 of the Code of Civil Procedure,1908, for rejection of the Plaint on the ground that the suit for bare injunction is not maintainable without seeking for declaration and possession, alleging that in terms of the averments made in the Plaint itself, the Plaintiff is not in possession of suit property and there is a cloud cast on the title of the Plaintiff. The said application came to be dismissed vide order dated 10.7.2023. It is challenging the same that the Petitioner is before this Court.
4. Sri. Sharath S. Gowda., learned counsel for the Petitioner, would submit that;
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NC: 2024:KHC:23985 CRP No. 37 of 2024 4.1. A perusal of the Plaint itself would indicate that there is a cloud on the title of the suit schedule property.
4.2. In para 11 it has been categorically averred that the defendants have not acquired any right, title and interest over the land bearing Sy.No.23, Pattanagere village, Kengeri Hobli, Bengaluru South taluk. The suit schedule property has been carved out of the said survey number.
4.3. In para No.11(A) of the Plaint, it is alleged that the family of Sri. P.N. Rajanna is the erstwhile owners of the property bearing Sy.Nos.23, 41/2, 52/1, 24/2, 24/4, 17/2B situated at Pattanagere village. M/s. REMCO (BHEL) House Building Cooperative Society Limited had negotiated with the said Sri. P.N. Rajanna and his family for purchase of the property. -6-
NC: 2024:KHC:23985 CRP No. 37 of 2024 4.4. An agreement dated 26.5.1984 was executed under which possession was delivered on payment of consideration, irrevocable Power of Attorney was executed in favour of the Society. A final settlement agreement was entered into on 29.12.1991, on which basis a layout was formed, and the plots were sold to various members, including the Plaintiff. 4.5. In para 11(B) of the Plaint, it is stated that acquisition proceedings, which had been initiated, had been quashed. The said Sri. P.N. Rajanna and others had obtained endorsement from competent Authorities that possession had been redelivered to them in terms of the orders of the Hon'ble Supreme Court of India, and thereafter, an independent transaction was entered into by Sri. P.N. Rajanna and others with the Society, declaring and ratifying the deeds which have been entered into earlier, -7- NC: 2024:KHC:23985 CRP No. 37 of 2024 ratifying all the actions taken by Society in formation of the layout, distribution of sites to its members, etc. furthermore, a suit in O.S. No.4601/2000 is stated to have been filed which has ended in a decree on 16.09.2000. It is on that basis, it is contended that Sri. P.N. Rajanna and family did not have any right, title or interest over the property in which the layout was formed and as such the defendants could not claim any right in respect of Survey No.23 or Survey No.24/2 under the erstwhile land owners, and they would not have any better right and title than that under the decree in O.S. No.4601/2000. It is on that basis he submits that there exists a cloud on the title of the property.
4.6. By referring to para 13 of the Plaint, he submits that the Plaintiff has admitted that, taking advantage of the absence of the Plaintiff, the -8- NC: 2024:KHC:23985 CRP No. 37 of 2024 defendants have fenced the scheduled property by putting up a compound wall and prevented the Plaintiff from entering the schedule property. When the Plaintiff visited the schedule property on 15.02.2011, he noticed the compound wall and raised the issue with the defenders, who had informed him that they would remove the compound wall; however, it was not so removed for more than 3 months. Therefore, Plaintiff met defendant No.2 on 14.05.2011, when defendant No.2 had withdrawn the assurance made on 15.2.2011 by categorically stating that they would not remove the hollow blocks compound wall. When the plaintiffs contacted defendant No.1, defendant No.1 had indicated that he could not do anything since he had already sold the property in favour of defendant No.2. -9-
NC: 2024:KHC:23985 CRP No. 37 of 2024 4.7. Referring to both the above, his submission is that firstly there is a cloud on the title of the property in as much as there is a categorical assertion made that the erstwhile land owners and/or anybody claiming under them would not have any right, title or interest. The Plaintiff ought to have sought for relief of declaration. 4.8. Secondly, his submission is that the Plaintiff himself having admitted that the third parties, like defendants No.1 and 2, had put up a compound wall preventing the Plaintiff from accessing his property, which came to the Knowledge of the Plaintiff on 15.2.2021 which had not been removed until 14.5.2011, the suit has been filed. The Plaintiff having admitted that the Plaintiff is not in possession and or that it is these defendants who are in possession, the Plaintiff ought to have sought for delivery back of the possession i.e., a suit for
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NC: 2024:KHC:23985 CRP No. 37 of 2024 possession without having sought for such a relief, the suit was not maintainable, thus requiring the Plaint to be rejected. 4.9. In this regard he relies upon the decision of the Hon'ble Apex Court in Anathula Sudhakar v. P.Buchi Reddy1 more particularly para 17, thereof which is reproduced hereunder for easy reference;
17. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:
(a) Where a cloud is raised over the 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 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 1 AIR 2008 SC 2033
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NC: 2024:KHC:23985 CRP No. 37 of 2024 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 [Annaimuthu Thevar v. Alagammal, (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 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.
4.10. By referring to Anathula Sudhakar's case, he submits that whenever there is a cloud raised
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NC: 2024:KHC:23985 CRP No. 37 of 2024 over a plaintiff's title who does not have possession, the suit for declaration and possession is required to be filed. If a suit is filed only for an injunction simpliciter, normally, the issue of title would not be directly or substantially an issue. However, in cases where de-jure possession has to be established on the basis of title without a finding on the title, there is no possibility of deciding on the issue of possession. Thus, in the present case, he submits that both a suit for declaration of title, as also possession was required to be sought for.
4.11. Reliance is placed on the dission in the case of T.V.Ramakrishna Reddy -vs- M.Mallappa2 more particularly para 15, 17 and 18 thereof, which are reproduced hereunder for easy reference;
2 AIR 2021 SC 4293
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NC: 2024:KHC:23985 CRP No. 37 of 2024
15. It could thus clearly be seen that this is not a case where the appellant-plaintiff can be said to have a clear title over the suit property or that there is no cloud on the appellant-plaintiff'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.
17. Insofar as the reliance on the order passed by the learned Single Judge of the Karnataka High Court dated 10-2-2000 (sic 18-2-2000) in T.V. Ramakrishna Reddy v. Bangalore Mahanagara Palike [T.V. Ramakrishna Reddy v. Bangalore Mahanagara Palike, 2000 SCC OnLine Kar 901] is concerned, it will be relevant to refer to the following observations made therein : (SCC OnLine Kar paras 3-4) "3. It is evident from the plain reading of the above that any entry made in the Corporation Register by fraud, misrepresentation or suppression of facts or by furnishing false, incorrect and incomplete material could be corrected within a period of three years from the date of such recording. The order in the instant case was passed admittedly much beyond the period of limitation prescribed by the provision extracted above. The same is therefore unsustainable on that ground itself. The parties being in litigation before the civil Court could upon adjudication of the controversy regarding the title to the property approach the Corporation for any modification in the entry which is no more any modification in the entry which is no more than a fiscal entry relevant only for purposes of payment of taxes and does not by itself create or extinguish title to the property in regard to which it is made. Till such time the competent Court declared the 3rd respondent as the true owner of the property, the Corporation could not on its own correct the entry after a period of 3 years stipulated under Section 114-A of the Act.
4. This writ petition accordingly succeeds and is hereby allowed. The impugned order shall stand quashed reserving liberty for the parties to have the matter adjudicated upon by the civil Court and
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NC: 2024:KHC:23985 CRP No. 37 of 2024 to approach the Corporation for a fresh entry/modification of the existing entry to bring the same in consonance with the civil Court's determination. No costs."
18. It could thus be clearly seen that the High Court in the said order has clearly noted that the parties are in litigation before the civil Court and that adjudication of controversy regarding the title of the suit property could be done only by the civil Court. The entry with the Corporation is nothing more than a fiscal entry relevant only for the purpose of payment of taxes and does not by itself create or extinguish title to the property. The Court observed that till such time the competent Court declared the third respondent therein as the true owner of the property, the Corporation could not on its own correct the entry after a period of 3 years stipulated under Section 114-A of the Act. The High Court has therefore set aside the order reserving liberty for the parties to have the matter adjudicated upon by the civil Court. 4.12. By relying on T.V. Ramakrishna Reddy's case, he submits that a suit simplicitor for a permanent injunction without seeking a declaration title was not tenable. 4.13. When pointed out that the decision in T.V. Ramakrishna Reddy's case was rendered in a Special Leave Petition confirming the finding in a Regular First Appeal, which may not apply to the consideration of application under Rule (11)
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NC: 2024:KHC:23985 CRP No. 37 of 2024 of Order VII of CPC. He relies on the decision of this Court dated 29.11.2021 in CRP No.121/2021 [Koshy Abraham -vs-
Smt.B.K.Jayalakshmi], more particularly 12.1, 12.2 12.3 thereof which are reproduced hereunder for easy reference:
12.1 I have answered point Nos.1 to 4 earlier as regards the legal position. The Trial Court vide the impugned order, has dismissed the application of the Petitioner only on the ground that the decision relied upon by the Petitioner in Chandrasen's case, Yudhishtir's case and other cases relied upon by the Petitioner was rendered by the Hon'ble Apex Court at the time of giving findings on the appeals challenging the judgment passed by the lower courts. Thus, the Trial Court came to the conclusion that since the said judgments were not rendered while considering the application for rejection of the Plaint, such judgments could not be considered. Such a finding of the Trial Court in my considered opinion is completely unsustainable. When judgments are rendered by the Hon'ble Apex Court or by this Court after the appeal is filed challenging the judgment, the Hon'ble Apex Court or this Court would be laying down the law on the matter.
12.2 When there is an exposition on law made by the Hon'ble Apex Court or by this Court, the said exposition would be binding on the Trial Court and the principle of law laid down would be required to be followed by the Trial Court and cannot be negated or refused to be
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NC: 2024:KHC:23985 CRP No. 37 of 2024 followed solely on the ground that the same was not rendered on an application under Order 7 Rule 11 but was rendered in a Regular First Appeal or in a Special Leave Petition.
12.3 The principles of law laid down would have to be applied while considering an application under Order 7 Rule 11 of CPC also and if the principles of law laid down would require an application under Order 7 Rule 11 to be allowed, the said application would have to be allowed. If the principle of law laid down would negate the application requiring the application to be dismissed, the trial Court would have to dismiss the same.
4.14. By relying on Koshy Abraham's case, his submission is that even if a finding on law has been rendered by the First Appellate Court or the Hon'ble Supreme Court of India in a Regular First Appeal or in a Special Leave Petition, the Judgements having expounded the position of law, the said position of law would have to be equally applied while considering an application under Rule (11) of Order VII of CPC. 4.15. He relies on the decision of the Hon'ble Supreme Court in the case of Bhargavi Constructions and another -v- Kothakapu
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CRP No. 37 of 2024
Muthyam Reddy and Others3, more
particularly para 26 thereof, which is
reproduced hereunder for easy reference:
26. We also do not agree with the submissions of Mr Adinarayana Rao, learned Senior Counsel for the respondents when he urged that firstly, the expression "law" occurring in clause (d) of Rule 11 Order 7 does not include the "judicial decisions"
and clause (d) applies only to bar which is contained in "the Act" enacted by the legislature; and secondly, even if it is held to include the "judicial decisions", yet the law laid down in State of Punjab [State of Punjab v. Jalour Singh, (2008) 2 SCC 660 : (2008) 1 SCC (Civ) 669 : (2008) 1 SCC (Cri) 524 : (2008) 1 SCC (L&S) 535] cannot be read to hold that the suit is barred. Both these submissions, in our view, have no merit. 4.16. His submission therefore is that the Plaintiff having sought for a bare injunction restraining the defendant from interfering with the possession, when the possession has been admitted to be with the defendant, such a relief is not maintainable and secondly, when the possession is with the defendant a mere prayer for mandatory injunction to remove the construction is not maintainable. A relief of 3 2018 (13) SCC 480
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NC: 2024:KHC:23985 CRP No. 37 of 2024 possession would have to be sought for, and both these prayers could not be granted without seeking a declaration of title since, even as per the plaint averments, there is a dispute with the erstwhile owners under whom the defendants claim title.
5. Sri. K.B.S. Manian, learned counsel for the respondent, would submit that,
5.1. All the contentions which have been raised by the petitioners are one which require trial. It cannot ex-facie be said that the suit is barred by law or there is a cloud of title. The reference to possession that has been made in the Plaint is only with reference to the temporary interference by the defendants in putting up a hollow brick wall; the possession was always with the Plaintiff. The Plaintiff visited the property once in every 15 days as per the averment made in para 12 of the Plaint, which
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NC: 2024:KHC:23985 CRP No. 37 of 2024 would have to be taken to be gospel truth while deciding an application under Rule (11) of Order VII of CPC. In terms of the averments made in the Plaint, there is no cloud on the title. In fact, the manner in which the Plaintiff has derived title over the suit schedule property, if there are any defects in relation thereto sought to be pointed out by the defendant, the same can only be done during the course of trial and the contention of the defendant made in the written statement or otherwise cannot be taken into consideration while deciding an application under Rule (11) of Order VII of CPC.
5.2. His submission is that an averment made that the erstwhile owners or anyone claiming under them would not have any right, title or interest would only enure to the benefit of the Plaintiff inasmuch as the Plaintiff has asserted title and
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NC: 2024:KHC:23985 CRP No. 37 of 2024 contented that no one else has title. Having asserted title, there being no relief sought for as regards any other sale deed or the like now sought to be relied upon by the defendants, there would be no requirement for the Plaintiff to seek relief of declaration of title. 5.3. Insofar as seeking possession of the property, his submission is that the possession has always vested with the Plaintiff. It is only now that the defendants have sought to interfere with the said possession. Therefore, a suit for bare injunction is maintainable. Merely because a compound wall has been built would not make the property to be in possession of the defendants, there being no construction which has been put up, the land continues to be vacant land, the title of the property vesting with the Plaintiff, possession would follow title,
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NC: 2024:KHC:23985 CRP No. 37 of 2024 therefore, not requiring the Plaintiff to seek for relief of possession.
5.4. In this regard, he relies upon the decision of the Hon'ble Apex Court in the case of Vishram Alias Prasad Govekar and others -v-
Sudesh govekar (dead) by Legal
Representatives and others4, more
particularly para 3, 24 and 25 thereof, which
are reproduced hereunder for easy reference:
The suit
3. The suit filed by Respondents 1 to 5 (hereinafter referred to as "the plaintiffs" for the sake of convenience) against the appellants (hereinafter referred to as "the defendants") was for specific performance and mandatory injunction.
It pertained to the property known as "Devalvadi" bearing Survey No. 251/2 situate at Chinvar in the village of Anjuna, Bardez, Goa, having an area of 1000 sq m (hereinafter referred to as "the suit property"). It was averred in the Plaint filed by the plaintiffs that this property was acquired by late Shri Vassudev Govekar from the Communidade of Anjuna, Bardez, Goa under File No. 131/1963 on 24-2-1970 as a permanent grant for the construction of the house. Towards the eastern side of the suit property, there exists another property bearing Survey No. 251/4 which belonged to their grandfather late Shri Jagannath Govekar and thereupon a house was constructed 4 2017 (11) SCC 345
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NC: 2024:KHC:23985 CRP No. 37 of 2024 by him. It was further averred that the plaintiffs and defendants are the co-owners in title and in possession of the said property bearing Survey No. 251/4 as well as the house situated thereupon. The defendants have been residing in the suit property and insofar as the plaintiffs are concerned, they were residing away from the suit property to earn their livelihood. Re: Possession
24. We now advert to the issue of "possession" and the question as to whether the suit was not maintainable in the absence of any relief qua possession.
25. Once again, the defendants relied upon the pleadings in the suit. It is argued that the plaintiffs were not in possession of the suit property as in the Plaint the plaintiffs have themselves stated that they were residing at different places in Goa and not in the suit property. However, that is a distorted reading of Para 10 of the Plaint. Therein, it is only stated as a fact that for the purpose of employment, these plaintiffs were residing at Margao, Goa or Ponda, Goa. At the same time, it is nowhere stated or admitted that they were not in possession of the suit property. On the contrary, it is specifically stated that since they were staying away from the suit property, they used to visit the suit property occasionally. This makes the stand of the Plaintiff categorical to the effect that they claimed their possession over the suit property. On the other hand, insofar as the defendants are concerned, the Plaint averred that they were residing in property bearing Survey No. 251/4 and the house situated therein. In fact, co-ownership and co-possession of that property is also claimed. It is in this backdrop the case made out by the plaintiffs is that when Plaintiffs 1, 3 and 5 visited the suit property on 30-12-2006 at about 5:00 p.m., they found that the "suit house" had been demolished by the defendants on which they were carrying a new construction.
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NC: 2024:KHC:23985 CRP No. 37 of 2024 5.5. By relying on Vishram's case, he submits that the situation in that case was also where the Plaintiff used to visit the property once in a while and merely because defendants had asserted possession, the same would not take away the possession of the Plaintiff. Though he does not dispute the principles of law laid down in Anathulla's case, he submits that on facts in the present case, the Plaintiff continues to be in possession.
6. Heard Sri. Sharath S. Gowda, learned counsel for the Petitioner and Sri. Manian K.B.S, learned counsel for the respondents. Perused papers.
7. Based on the submissions made by both counsels, the points that would arise for determination are;
1. Whether in a suit if the Plaintiff were to admit cloud on the title of the Plaintiff, relief of declaration is required to be sought for?
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2. When the Plaintiff admits that the defendants are in possession, can a suit for bare injunction restraining interference with possession and a mandatory injunction directing the removal of any obstruction without seeking possession be maintained?
3. In the present case, is the Plaint filed by the Plaintiff in O.S. No.3461/2011 required to be rejected?
4. What order?
8. I answer the above points as under
9. Answer to point No.1: Whether in a suit if the Plaintiff were to admit cloud on the title of the Plaintiff, relief of declaration is required to be sought for?
9.1. The Principles laid down by the Hon'ble APEX Court in Anantula Sudhakar's case are the guiding factors for any Court to follow while dealing with civil suits relating to title, possession or interference with possession. The
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NC: 2024:KHC:23985 CRP No. 37 of 2024 exposition of law made by the Hon'ble Apex Court is clear and categorical.
9.2. Whenever there is a dispute of title between the parties to a suit, it would, but, be required for the Plaintiff to seek for a declaration of the title of the Plaintiff since it is only when such a relief of declaration is sought for, that the aspect of title in whom the title vests and who is the owner can be categorically determined. 9.3. If the Plaintiff were not to seek for relief of declaration of title but only has asserted title in the property while making averments in the Plaint which would indicate that the title is in dispute or there is a cloud on the title, then it would, but, be required for the Plaintiff to have sought for relief of declaration of title. 9.4. It is only where there is no cloud on title or conflict relating to title of the property that the
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NC: 2024:KHC:23985 CRP No. 37 of 2024 relief of declaration of title would not be required to be sought for.
10. ANSWER TO POINT NO.2: When the Plaintiff admits that the defendants are in possession, can a suit for bare injunction restraining interference with possession and a mandatory injunction directing the removal of any obstruction without seeking possession be maintained?
10.1. In a suit for bare injunction restraining interference with possession, two main ingredients that are required to be established by the Plaintiff are, firstly, that the Plaintiff is in possession, secondly, that the Plaintiff's possession has been interfered with. 10.2. Without the Plaintiff establishing possession, the question of grant over injunction restraining interference with possession would not arise. This being so, for the simple reason that there cannot be interference with the possession of a person who is not in possession of that
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NC: 2024:KHC:23985 CRP No. 37 of 2024 particular property. As regards who is interfering with possession, again the sine qua non is for the Plaintiff to have established possession with which the defendant has sought to interfere. These aspects would have to be gathered from the factual matrix of the particular litigation and the Court would have to apply the above principles.
10.3. Even in so far as this aspect is concerned., Anathula Sudhakar's decision is clear and categorical as to when the relief of possession has to be sought for.
11. Answer to point No.3: In the present case, is the Plaint filed by the Plaintiff in O.S. No.3461/2011 required to be rejected? 11.1. In the background of my answers to point No.1 and 2, point No.3 would have to be considered and answered.
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NC: 2024:KHC:23985 CRP No. 37 of 2024 11.2. The submission of Sri. Sharath S. Gowda, by referring to para 11, 11(A), 11(B), 12 and 13 of the Plaint is that the Plaintiff has himself admitted that there is a cloud on the title of the Plaintiff and that the possession is with the defendants.
11.3. A perusal of para (11) of the Plaint would indicate what has been asserted is that the defendant No.1 claims ownership on land in Survey No.24/4 and not as regards land in Survey No.23 from which the suit schedule property is carved out of. Though various assertions have been made in para 11(A) and 11(B) as regards the dispute with the erstwhile owners, at the end of para 11(B) what is only stated is that the erstwhile owners or anyone claiming under them would not have any title over Survey No.23 or Survey No.24/2. There is no assertion made in the Plaint that the
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NC: 2024:KHC:23985 CRP No. 37 of 2024 defendants have a claim over survey No.23 and/or that the defendants have a right over survey No.23, which is not tenable or unsustainable.
11.4. Merely referring to the dispute between the Society and the erstwhile landowners would not cast a cloud on the title with respect to Survey No.23, where the suit schedule property is situate. Therefore, in the facts and circumstances, I am of the considered opinion that at this stage, it cannot be said that there is a cloud on the title of the property requiring the Plaintiff to seek for the relief of declaration of title and not having sought for such a relief would require rejection of the Plaint. 11.5. These are all aspects which are required to be established during the course of trial. In the event of the defendant establishing that the defendant has title, then the suit of the Plaintiff
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NC: 2024:KHC:23985 CRP No. 37 of 2024 would obviously fail, the Plaintiff not having sought for declaration of title, this aspect of title would arise for determination as held by the Hon'ble Apex Court in Anantula Sudhakar's case, more particularly sub-para
(d) of para 17 which has been extracted hereinabove.
11.6. If the Plaintiff has a clear title, there would be no requirement for the Plaintiff to be driven to a costlier and cumbersome remedy of a suit for declaration. The Court should use its discretion carefully to identify cases where it will enquire about the title and refer the Plaintiff to more comprehensive declaratory suits. 11.7. This exercise of discretion cannot be made at the stage of considering an application under Rule (11) of Order VII of CPC, but would have to be excised after the trial is complete and evidence is on record. It is at that stage if the
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NC: 2024:KHC:23985 CRP No. 37 of 2024 Court were to come to a conclusion that without relief of declaration of title being sought or the issue of title cannot be gone into there being serious dispute about title, then the Court may dismiss the suit by relegating the Plaintiff to a comprehensive suit for declaration. 11.8. In the present case, at this stage, on the basis of the averments made in the Plaint, I am unable to come to a conclusion that such a serious dispute of title has arisen which would require the Plaintiff to seek a relief of declaration of title.
11.9. Again, in so far as possession is concerned, the title to the property having been asserted by the Plaintiff, the Plaintiff having asserted that the Plaintiff visits the property, the formation of the layout, disbursal of the site, etc., having been categorically stated, there being a sale deed in favour of the Plaintiff, the property
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NC: 2024:KHC:23985 CRP No. 37 of 2024 being an urban vacant property, possession of the property would follow the title of the property and as such, the sale deed being in favour of the Plaintiff, it cannot at this stage be concluded that Plaintiff is not in possession merely because a compound wall has been built.
11.10. What is stated by the Plaintiff in para (13) is that by building a compound wall the Plaintiff's access to the property is disturbed, that does not in any manner categorically indicate that a compound wall is constructed on the property of the Plaintiff and/or that the defendants are in settled possession of the property. The so- called compound wall having been built only in the month of February, the suit having been filed in the month of June, the Plaintiff having asserted possession prior thereto, at this stage,
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NC: 2024:KHC:23985 CRP No. 37 of 2024 it cannot be said that the Plaintiff is not in possession.
11.11. This aspect would again have to be decided by the Trial Court after the trial is complete. As observed above, if the trial court were to come to a conclusion that the Plaintiff is not in possession and or that the Plaintiff's possession has not been interfered with, the relief sought for by the Plaintiff cannot be granted. 11.12. The decision in Vishram's case, relied upon by Sri. K.B.S. Manian, learned counsel could not be strictly applicable to the present matter inasmuch as the said suit was one relating to partition between family members where the Hon'ble Apex Court came to a conclusion that the Plaintiff cannot be said not to be in possession merely because some construction is done by other family members. This being so
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NC: 2024:KHC:23985 CRP No. 37 of 2024 since all family members are in joint possession and enjoyment of the joint family property. 11.13. In the present case, the property is not a joint family property, it is the individual property of the Plaintiff over which respondents who are 3rd parties are asserting individual right. Thus, the principles in Vishram's case would not be applicable.
11.14. Be that as it may, even without reference to Vishram's case, I have come to a conclusion, that it cannot be said that the Plaintiff is not in possession and/or that the defendants are in exclusive possession. Thus, there would be no requirement for the Plaintiff to seek for relief of possession.
11.15. This being the prima facie view for consideration of an application under Rule (11) of Order VII of CPC, after trial, if the Court were to come to a conclusion that there is a
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NC: 2024:KHC:23985 CRP No. 37 of 2024 cloud on the title of the property or that the Plaintiff is not in possession, the suit would obviously be dismissed requiring the Plaintiff to file a more comprehensive suit seeking for declaration of title and possession, if so permissible, taking into account the law of limitation amongst several other factors. However, if the Court were to come to a conclusion that there is no cloud on the title and/or that the possession is with the Plaintiff, then the reliefs sought for by the Plaintiff can be granted.
11.16. For the purpose of this matter, at this stage, I am of the considered opinion that the averments made in the Plaint would not entail rejection of the plaint on the ground of the Plaintiff not having sought for declaration of title and/or not having sought for possession.
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NC: 2024:KHC:23985 CRP No. 37 of 2024 11.17. Hence, I do not find any infirmity in the order passed by the trial Court requiring interference of the hands of this Court.
12. Answer to point No.4: What order?
The Civil Revision petition stands dismissed.
Sd/-
JUDGE LN List No.: 2 Sl No.: 1