Karnataka High Court
Vittal Shetty S/O Late Menka Shetty vs Smt Kamala Shedty W/O Late Menka Shetty on 6 January, 2014
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
1 RSA 2082/2010
IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 6TH DAY OF JANUARY, 2014
BEFORE
THE HON'BLE MR.JUSTICE RAM MOHAN REDDY
REGULAR SECOND APPEAL NO. 2082 OF 2010 (INJ)
BETWEEN
1 VITTAL SHETTY
S/O. LATE MENKA SHETTY
AGED ABOUT 63 YEARS
RESIDING AT BOMMITHOTA
KURKAL VILLAGE
POST SUBHASHNAGAR
UDUPI TALUK
UDUPI DISTRICT
2 SRI. VAMAN SHETTY
S/O. LATE MENKA SHETTY
AGED ABOUT 58 YEARS
RESIDING AT BOMMITHOTA
KURKAL VILLAGE
POST SUBHASHNAGAR
UDUPI TALUK
UDUPI DISTRICT
... APPELLANTS
(BY SRI.BIPIN HEGDE & K. MANJUNATH, ADVOCATES)
AND :
SMT. KAMALA SHEDTY
W/O. LATE MENKA SHETTY
AGED ABOUT 81 YEARS
RESIDING AT BOMMITHOTA
KURKAL VILLAGE
POST SUBHASHNAGAR
2 RSA 2082/2010
UDUPI TALUK
UDUPI DISTRICT
... RESPONDENT
(BY SRI. S. VISHWAJITH SHETTY, ADVOCATE]
THIS RSA IS FILED UNDER SECTION 100 OF CPC, 1908
AGAINST THE JUDGMENT AND DECREE DATED 18.03.2010
PASSED IN R.A.NO. 40/2004 ON THE FILE OF THE ADDL.
SENIOR CIVIL JUDGE, UDUPI, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 15.6.2004
PASSED IN OS No.166/01 ON THE FILE OF THE PRL. CIVIL
JUDGE [JR. DN.,], UDUPI.
THIS RSA IS COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
JUDGMENT
Defendants in OS No.166/2001 on the file of the Principal Civil Judge [Jr. Dn.,] Udupi, aggrieved by the Judgment and decree dated 15.6.2004, permanently restraining the appellants from trespassing into or taking forcible possession of the portion of the suit schedule properties or from interfering with the plaintiff's peaceful possession and enjoyment of the said properties, filed RA No.40/2004 before the Senior Civil Judge, Udupi, which when dismissed by the Judgment and decree dated 18.3.2010, have preferred this second appeal.
3 RSA 2082/2010
2. Respondent instituted OS No.166/2001, arraigning appellants as defendants for permanent injunction, restraining the defendants from interfering with the peaceful possession and enjoyment of the suit schedule properties, being agricultural lands in nine survey numbers of different extent situated in Kurkala Village, Udupi Taluk and a tiled house bearing No.5-85 in Sy. No.53-19, Kurkala Village, Udupi Taluk, consisting of five rooms and chavadi kottige etc.
3. According to the plaintiff, defendants, though, are two out of her eight children, nevertheless, have no right, title or interest over the suit schedule properties, which belong to the plaintiff in view of the order of the Land Tribunal, conferring occupancy rights under section 48A of the Land Reforms Act, 1961 and that defendants have taken separate residences and are not in possession of the suit schedule properties. The appellants filed written statement, inter alia, contending 4 RSA 2082/2010 that the suit schedule properties are joint family properties and plaintiff is not the sole person in possession of the same, while they too are in possession and enjoyment of the suit schedule properties, being the family house and plaintiff has no right to prevent them from staying in the house and enjoying the suit schedule properties.
4. In the premise of pleadings of parties, the trail court framed the following issues:
"1. Whether the plaintiff proves that she is in lawful possession and enjoyment of the plaint 'A' schedule property?
2. Whether the plaintiff proves that defendants are interfering with the peaceful possession and enjoyment of the plaint 'A' schedule property as alleged in the plaint?
3. Whether the plaintiff is entitled for the permanent injunction as prayed for?5 RSA 2082/2010
4. What order or decree?"
5. The power of attorney holder of the plaintiff, none other than one of her sons was examined as PW.1 and introduced in evidence Exhibits.P1 to P32, while for the defendants, 1st defendant was examined as DW.1 and marked documents as Exhibits.D1 to D9. The trial court having regard to the pleadings, evidence both oral and documentary and the material on record, returned findings in the affirmative over the three issues and by the Judgment and decree dated 15.6.2004 allowed the suit.
6. The trial court observed that the testimony of PW.1, though, power of attorney holder of the plaintiff, none other than one of the sons of the plaintiff, had personal knowledge of the facts of the case as well as the cause of action for the suit, and accepted the testimony as admissible evidence. The documents being the order of the Land Tribunal - Ex.P2, Form 6 RSA 2082/2010 No.10 - Ex.P3, tax paid receipt - Ex. Nos.P4, P5 and P6, RTC Pahanis - Ex.P12 to P20 as well as the voter's list Ex.P21, disclosed that the plaintiff was conferred with occupancy rights under section 48A of the Land Reforms Act, 1961 and had paid the land revenue, while RTC discloses that it was plaintiff who is the cultivator in possession of the suit schedule properties.
7. Regard being had to the presumption under section 133 of the Karnataka Land Revenue Act, 1964, over the entries in the RTC pahanis, in the absence of a rebuttal, the trial court held that it is the plaintiff in possession and enjoyment of the suit schedule properties. The trial court, in great elaboration, at paragraph-9 of the Judgment, appreciated the evidence, both oral and documentary and returned findings on issue No.1 that the plaintiff alone is in lawful possession and enjoyment of the suit schedule properties. The trial court observed that the defendants having trespassed 7 RSA 2082/2010 into the suit house and taken away some of the movables led to a police complaint for assault and trespass and that evidence of PW.1 was in the direction of establishing the interference and therefore accepted the testimony of PW.1 as admissible evidence.
8. The lower appellate court, on a re-
appreciation of the material on record, concurred with the findings of the trial court to dismiss the appeal.
9. Learned counsel for the appellants submits that the testimony of PW.1 - power of attorney holder, in the absence of personal knowledge of what transpired between the plaintiff and the defendants and since the plaintiff was not examined as a witness, suit for permanent injunction to restrain the defendants from interfering with plaintiff's possession of the suit schedule properties, deserved to be rejected. Learned counsel further submits that no decree for permanent injunction can be granted against a co-owner of the suit 8 RSA 2082/2010 schedule properties and that the appellants being sons of the plaintiff, the conferring of occupancy rights on the plaintiff is for and on behalf of the members of the family.
10. Per contra, learned counsel for the respondent - plaintiff seeks to sustain the Judgment and decree of the courts below, as being well merited, fully justified and not calling for interference.
11. A perusal of the deposition of PW.1, power of attorney holder of the plaintiff, none other than one of the eight children of the plaintiff, discloses personal knowledge of the events that occurred on the alleged date of interference by defendants with the plaintiff's peaceful possession and enjoyment of the suit schedule properties. Order III Rule 2 CPC provides for appearances by a recognized agent which could be person holding power of attorney authorizing him to make and do such appearances, applications and acts 9 RSA 2082/2010 on behalf of such parties. In 'KAILASHI DEVI v. MATADEEN AGRAWAL'1, it is held that a power of attorney is a competent witness and is entitled to appear and his statements in the court cannot be ignored or it cannot be said that the statement of such witness shall not be read in evidence only because of the reason that he had appeared as power of attorney holder of the plaintiff and the plaintiff did not choose to enter the witness box.
12. It was further observed that the evidence of person who had appeared in the capacity as power of attorney holder ought to be read as admissible evidence. In 'GANGAVVA v. ARJUNSA'2, this court held that there is no express bar in the Civil Procedure Code to debar the power of attorney to be examined as witness on behalf of parties to the proceedings. 1 AIR 2001 RAJ 306 2 AIR 2001 KAR 231 10 RSA 2082/2010
13. In order to appreciate the submission of learned counsel that appellants being co-owners of the suit schedule properties, a permanent injunction cannot be issued against them, suffice it to state that the documents marked in evidence for the plaintiff clearly establish conferring of occupancy rights of the suit schedule properties on the plaintiff alone, which order of the Land Tribunal admittedly, is not questioned by the appellants and is final. The presumption under section 133 of the Karnataka Land Revenue Act, 1964, in respect of the entries in the revenue records, stands in favour of the plaintiff whose name is recorded as cultivator in possession of the suit schedule agricultural land and the house property constructed on the agricultural land.
14. The trial court, in my opinion, was justified in observing that it is for the appellants to institute a suit for declaration, partition and separate possession if 11 RSA 2082/2010 they claim to be co-owners of the suit schedule properties and not seek an order declaring them to be co-owners in a suit for permanent injunction.
15. In the facts and circumstances of this case, the observations of the Apex Court in 'ANATHULA SUDHAKAR v P. BUCHI REDDY'3 is apposite.
"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 the plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.3
2008 [4] SCC 594 12 RSA 2082/2010
(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.13 RSA 2082/2010
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 14 RSA 2082/2010 title and cases where it will refer to the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case."
16. So also the observations of the Apex Court in 'RAMJI RAI v. JAGDISH MALLAH'4 in the circumstances is apposite.
"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)
17. In 'RAME GOWDA v. M. VARADAPPA5 the Apex Court observed thus:
"12. .......................................................
In Fakirbhai Bhagwandas v. Maganlal Haribhai (AIR 1951 Bom 380) a Division 4 2007 [4] SCC 200 5 2004 [1] SCC 769 15 RSA 2082/2010 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. ............................"
18. Regard being had to the aforesaid observations of the Apex Court and applying the same to the facts and circumstances of the case on hand, it would be pretentious to accept the submissions of learned counsel for the appellants. No substantial question of law arises for decision making in the appeal.
19. Appeal is dismissed.
Sd/-
JUDGE AN/-