Karnataka High Court
Chinnappa vs Corporation Of The City Of Bangalore on 28 May, 2004
Equivalent citations: AIR2005KANT70, 2005(1)KARLJ56, AIR 2005 KARNATAKA 70, 2005 AIR - KANT. H. C. R. 8, 2005 A I H C 580, (2005) 2 CURCC 176, (2005) 1 KANT LJ 56, (2005) 1 KCCR 82, (2005) 5 KANT LJ 584, (2005) 1 CIVILCOURTC 382, (2005) 2 ICC 290
Author: K. Sreedhar Rao
Bench: K. Sreedhar Rao
JUDGMENT K. Sreedhar Rao, J.
1. The appellant is the plaintiff, filed a suit for declaration of title and permanent injunction in respect of the suit site. The plaintiff claims that the suit site was the part of Sy. No. 21 of Sunkenahalli Village. The erstwhile landlord formed revenue sites and the suit site was purchased by the plaintiffs father under Ex. P. 2 in the year 1963. Since then the plaintiff claims to be in possession and enjoyment by putting up a small structure. When defendant tried to interfere, the suit is filed.
2. The defendant in the written statement admits existence of a temporary structure on the suit site but denies the title of the plaintiff. It is pleaded that the suit site is a civic amenity site handed over by the BDA to the defendant for the purpose of civic amenities. The plaintiff's title over the civic amenity site is denied.
3. It is pertinent to note that prior to the suit, the plaintiff had filed a suit in O.S. No. 2252 of 1982 for permanent injunction in respect of the present suit property. The Trial Court dismissed the suit on the ground that plaintiff has failed to prove lawful possession. The judgment and decree was confirmed by this Court in R.F.A. No. 561 of 1985.
4. The Trial Court in its judgment takes note of the fact of dismissal of the suit of the plaintiff in O.S. No. 2252 of 1982, comes to the conclusion that the findings given in the suit operates as res judicata. Also holds that under Order 2, Rule 2 of the CPC the present suit is barred in law, in the sense that the plaintiff ought to have prayed for a relief of declaration in the earlier suit. Having failed to do so, is not entitled to file a suit afresh for the relief of declaration with consequential relief of injunction. The Trial Court also holds that the plaintiff has failed to prove the title and possession and thus dismissed the suit. Hence, this appeal.
5. The Trial Court has thoroughly erred in understanding the facts and evidence and in drawing legal inferences. The earlier suit was filed only for permanent injunction. The question of plaintiffs title was not in issue in that suit. Only the question of lawful possession was involved. Incidentally the plaintiff had relied on the title to prove lawful possession in the earlier suit. The finding in the earlier suit on the question of possession does not come in the way of the plaintiff in the present comprehensive suit to seek declaration of title. The defendant categorically admits existence of asbestos sheet structure and possession of the plaintiff. May be in the latter portion of the written statement, there is a general denial of possession but such general denial cannot take away the legal effect of admission of possession.
6. The defendant contends that the suit site is a civic amenity site. The said statement impliedly suggests that the property should have been acquired for formation of residential sites with a provision for civic amenities. There is no pleading on the part of defendant that Survey No. 21 is acquired lawfully by the BDA and that the suit site has been ear marked as civic amenity site. The defendant has not produced any records to show the acquisition of the land and denoting the suit site as a civic amenity site.
7. The Trial Court in O.S. No. 2252 of 1982 holds that the plaintiff has not proved the title of the vendor of Ex. P. 2. The pleadings and the issues perhaps did not warrant any indepth exercise on the part of plaintiff to prove the title of the vendor of Ex. P. 2. The facts and pleadings also did not warrant an issue to that effect. There was no issue regarding title in the earlier suit. Therefore, the findings in the earlier suit filed for bare injunction cannot operate as res judicata.
8. The present suit is filed for declaration of title, the Ex. P. 2 is the sale deed. The contention that the vendor of Ex. P. 2 had lost his title on account acquisition proceeding is not proved by any evidence. Merely saying that the suit site is a civic amenity site does not help to disprove the case of the plaintiff.
9. The Trial Court is wrong in holding that the suit is barred under Order 2, Rule 2 of the CPC. The dismissal of a suit for injunction does not preclude in law from filing a suit for declaration. It is not mandatory in the scheme of the CPC that a suit for relief of permanent injunction should conjunctively go with the relief of declaration of title.
10. The plaintiff has produced Ex. P. 2 the sale deed obtained by his father. There is no contra evidence to show that the vendor of Ex. P. 2 had no title over the property at the time of sale. The fact that plaintiff had failed to prove possession in 1982 does not mean that he is precluded from proving possession in the present suit and more so the possession of the plaintiff is specifically admitted by the defendant. In that view of the matter, the judgment and decree of the Trial Court is bad in law. The appeal is allowed with costs. The judgment and decree of the Trial Court is set aside. The suit of the plaintiff is decreed.