Karnataka High Court
G Krishnappa vs Govindaiah on 15 December, 2021
Author: B.Veerappa
Bench: B.Veerappa
-: 1 :-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF DECEMBER, 2021
PRESENT
THE HON'BLE MR. JUSTICE B.VEERAPPA
AND
THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA
REGULAR FIRST APPEAL. No.798/2016
BETWEEN:
G KRISHNAPPA
S/O LATE V GIRIYAPPA
AGED ABOUT 59 YEARS
NO.10, 4TH CROSS
AVALAHALLI, MYSORE ROAD
BANGALORE - 560026.
... APPELLANT
(BY SRI V VISWANATH SHETTY, DAVOCATE)
AND:
1. GOVINDAIAH
S/O LATE VENKATEGOWDA
AGED ABOUT 72 YEARS
2. SUSHEELAMMA
D/O GOVINDAIAH
AGED ABOUT 45 YEARS
3. VENKATESH
S/O GOVINDAIAH
AGED ABOUT 42 YEARS
4. GIRIJA
W/O VENKATESH
AGED ABOUT 32 YEARS
5. JAYAMMA
D/O GOVINDAIAH
AGED ABOUT 38 YEARS
6. SURESH
S/O GOVINDAIAH
AGED ABOUT 36 YEARS
-: 2 :-
7. SHEELA
W/O SURESH
AGED ABOUT 32 YEARS
8. THIMMEGOWDA
S/O LATE VENKATEGOWDA
AGED ABOUT 62 YEARS
9. GANGAMMA
W/O THIMMEGOWDA
AGED ABOUT 57 YEARS
10. ANANDA
S/O THIMMEGOWDA
AGED ABOUT 27 YEARS
11. PUTTAMMA
D/O THIMMEGOWDA
AGED ABOUT 24 YEARS
12. HEMAVATHI
D/O THIMMEGOWDA
AGED ABOUT 22 YEARS
13. GIRIYAPPA
S/O LATE VENKATEGOWDA
AGED ABOUT 57 YEARS
14. KAMALAMMA
W/O GIRIYAPPA
AGED ABOUT 44 YEARS
15. RANI
D/O GIRIYAPPA
AGED ABOUT 23 YEARS
16. SANTHOSH
S/O GIRIYAPPA
AGED ABOUT 21 YEARS
17. M/S UNIVERSAL STEEL ROLLING
MILLS PRIVATE LIMITED,
HAVING ITS REGISTERED OFFICE AT
UPHAAR, NO.4, 12TH MAIN
MARUTHI NAGAR, MALLESH PALYA
BANGALORE - 560075
REP. BY ITS MANAGING DIRECTOR
P.S PRASAD.
...RESPONDENTS
(BY SRI NAGARAJ DAMODAR, ADVOCATE FOR R1 TO R17:
SRI S RAJASHEKAR, ADVOCATE FOR R19 AND R20:
R18 IS SERVED UNREPRESENTED)
-: 3 :-
***
THIS REGULAR FIRST APPEAL IS FILED UNDER ORDER 96
OF THE CODE OF CIVIL PROCEDURE, PRAYING TOAGAINST THE
JUDGMENT AND DECREE DATED 08.10.2013 PASSED IN O.S.
NO.7/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JMFC, KUNIGAL DISMISSING THE SUIT FOR DECLARATION AND
MANDATORY INJUNCTION.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
K.S. HEMALEKHA J., DELIVERED THE FOLLOWING:
JUDGMENT
The plaintiff has preferred the present Regular First Appeal assailing the judgment and decree dated 08/10/2013, passed in O.S.No.7/2011, on the file of the Senior Civil Judge and JMFC, Kunigal, dismissing the suit filed by the plaintiff for declaration and consequential relief of mandatory injunction and possession.
2. The parties are referred to as per their ranking before the trial Court.
3. It is the case of the plaintiff that one Venkategowda, son of Shetty Gowda is the paternal grand- father of the plaintiff and the suit schedule land bearing Sy.No.160 of Jaladigere Village, measuring 4 acres 12 guntas inclusive of 10 guntas of karab land was granted to Venkategowda, son of Shetty Gowda by the Government on -: 4 :- 01/08/1935 and he was in possession and cultivation of the land till 16/11/1951. It is contended that after the death of the grand-father, plaintiff's father was cultivating the land and he died on 19/11/1975 and on the death of the plaintiff's father, the plaintiff is cultivating the said land. It is also contended that defendant Nos.1, 8 and 13 got their names entered in the RTC extracts and other revenue records contending that the Government has granted the suit schedule land in their favour. It is further averred that according to defendant No.17, the land was granted by the Government to Venkategowda, son of Buddegowda and after his death defendant Nos.1, 8 and 13 being his legal heirs, got their names entered in the revenue records. It is further contended that the suit lands were not granted by the Government to Venkategowda, son of Buddegowda at any point of time and that defendant Nos.1 to 16 have created a registered sale deed dated 25/04/2008 in favour of defendant No.17 and the defendant No.17 sought to convert the agricultural land for residential and industrial purpose. It is further contended that the alleged transaction between the defendant Nos.1 to 16 and defendant No.17 is void ab initio as there is no valid title to -: 5 :- the suit schedule property in favour of defendant Nos.1 to 16 and thus, filed the suit for declaration that the sale deed dated 25/04/2008 executed by defendant Nos.1 to 16 in favour of defendant No.17 as void ab initio and not binding on the plaintiff and also sought for mandatory injunction directing defendant No.17 to deliver possession of the suit schedule property to the plaintiff.
4. The defendant Nos.1 to 16 filed their written statement denying the averments made in the plaint and submitted that the land bearing Sy.No.160, measuring 4 acres 12 guntas, situated at Jaladigere Village, Yediyur Hobli, Kunigal Taluk inclusive of 10 guntas of kharab land was granted to one Venkategowda, son of Buddegowda by the Government on 01/08/1935 and the said Venkategowda, son of Buddegowda was in peaceful possession and cultivation of the said land and his name was recorded in the revenue records. It is further contended that the said Venkategowda, son of Buddegowda died, leaving behind three sons viz., defendant Nos.1, 8 and 13 and on the death of Venkategowda, son of Buddegowda, the name of defendant No.1-Govindaiah was mutated vide M.R.No.20/2007-08 and it is further -: 6 :- contended that the name of Govindaiah, son of Venkategowda was mutated in the register and other revenue records. It is also contended that the said Govindaiah filed an application for conversion of agricultural land bearing Sy.No.160 for industrial purpose to an extent of 3 acres 23 guntas and 12 guntas for residential purpose and the Deputy Commissioner accorded permission for conversion by an order dated 22/04/2008. It is further contended that the plaintiff is wrongly contending that the suit schedule property was granted in favour of Venkategowda, son of Shettygowda even though the said land was granted in favour of Venktaegowda, son of Buddegowda and also contended that the plaintiff has absolutely no manner of right, title or interest over the suit schedule property and thus, sought to dismiss the suit.
5. Defendant No.17 also filed a written statement denying the averments made by the plaintiff and contended that Sy.No.160, measuring 12 guntas was granted to Venkategowda, son of Buddegowda by the Government on 01/08/1935. Since then, the name of Venkategowda, son of Buddegowda appeared in the said RTC's and he was in peaceful possession and cultivation of the said land. He -: 7 :- further contended that on the death of Venkategowda, son of Buddegowda, the names of his sons came to be entered and the defendants together sold residentially converted land bearing Sy.No.160, measuring 12 guntas and industrial converted land bearing Sy.No.160, measuring 3 acres 22 guntas by registered sale deed dated 25/04/2008 in favour of defendant No.17. It is further contended that the plaintiff taking advantage of the name of the Venkategowda, is trying to grab the property and has filed a false suit and urging many other grounds, defendant No.17 sought for dismissal of the suit.
6. The trial Court on the basis of pleadings of the parties framed the following issues:
ISSUES
1. Whether the plaintiff proves that the suit schedule property was granted on 01.08.1935 in favour of his grandfather by name Venkategowda son of Shetty Gowda?
2. Whether the plaintiff proves that his father V.Giriyappa has succeeded to the suit schedule property and after his demise he has succeeded to the same?
3. Whether the plaintiff proves that he is in peaceful possession and enjoyment of the suit schedule properties?-: 8 :-
4. Whether the defendants prove that the suit schedule property was granted on 01.08.1935 in favour of father of defendants No.1, 8 and 13 by name Venkategowda S/o. Buddegowda?
5. Whether the defendants prove that defendants No.1, 8 and 13 have succeeded to the suit schedule property?
6. Whether the defendants prove that the original documents pertaining to land bearing No.160 were lost?
7. Whether the defendants prove that Govindaiah S/o. Venkategowda has got part of the suit schedule property converted?
8. Whether the plaintiff proves that he is entitled for the reliefs claimed?
9. What Order or Decree?
7. The plaintiff in order to prove his case examined himself as PW 1 and got marked 19 documents as per Exs.P-1 to P-19. Defendant No.13 was examined as DW.1 and the Managing Director of defendant No.17 was examined as DW.2 and got marked 33 documents as per Exs.D-1 to D-33.
8. The Trial Court, considering the entire material on record, dismissed the suit of the plaintiff holding that the plaintiff has failed to prove that the suit schedule property -: 9 :- was granted on 01/08/1935 in favour of his grand-father by name Venkategowda, son of Shettygowda.
9. We have heard the learned counsel for the parties to the lis.
10. Sri V. Vishwanath Shetty, learned counsel for the plaintiff would contend that the trial Court has dismissed the suit for declaration without considering the facts in proper perspective. He contended that the trial Court has failed to consider that the plaintiff is the absolute owner of the suit schedule property and the vital documents Ex.P-2 being the passbook of agricultural equipments clearly depicts that the agricultural equipments are issued by the Department of Agriculture, Government of Karnataka in the year 1993 and such a passbook is issued only to the farmers whose names have appeared in the revenue records. It is contended that the name of the plaintiff's grand-father was entered in revenue records. It is further contended that the appellant was in service at Mysuru and after his voluntary retirement in the year 2009, he gave an application to enter his name in the revenue records, which was originally standing in the name of his -: 10 :- grand-father late Venkategowda, son of Shettygowda. It is further contended that the trial Court erroneously construed that the plaintiff is taking advantage of his grand-father's name to that of the name of the father of the defendant.
11. It is further contended that the trial Court ought to have considered the passbook produced by the plaintiff in proper perspective and contended that the sale deed executed by defendant Nos.1 to 16 in favour of defendant No.17 is without there being any right over the suit property. It is also contended that there is a criminal case filed against the defendants in C.C.No.1149/2012 for the offences punishable under Sections 417, 419, 465, 471 and 420 of the Indian Penal Code, 1860 ("IPC") and therefore, sought to allow appeal. It is further contended that in support of his contention, he has filed I.A.No.1 under Order XLI Rule 27 of the Code of Civil Procedure, 1908 ("CPC) for production of additional documents and to adduce additional evidence and sought for allowing the said application.
-: 11 :-
12. Per contra, Sri Nagaraj Damodar, learned counsel for respondent Nos.1 to 17 and Sri S.Rajashekar, learned counsel for respondent Nos.19 and 20 supported the judgment and decree passed by trial Court and contended that there is no merit in the appeal filed by the plaintiff and sought to dismiss the appeal.
13. In view of the rival contentions urged by the learned counsel for the parties and after careful perusal of the entire material on record including original records, the points that arise for our consideration in the present Appeal are:
"(i) Whether I.A.No.1/2020 filed for production of additional documents needs to be considered?"
(ii) Whether the judgment and decree passed by the trial Court would require interference by this Court?"
14. Before considering the judgment and decree passed by the trial Court, the application (I.A.No.1) filed by the plaintiff for production of additional documents and adducing additional evidence needs consideration.
15. The plaintiff has filed I.A.No.1 under Order XLI Rule 27 of the CPC praying to produce additional -: 12 :- documents and to adduce additional evidence. The documents sought to be produce are as under:
1. Letter dated 01/06/2018 issued by the Public Information Officer and Asst. Director, District Industrial Centre, Tumakuru to the petitioner.
2. Letter dated 25/03/2019 issued by the Joint Director, District Industrial Centre, Tumakuru to the Petitioner with enclosures.
3. Order passed by the Karnataka Information Commissioner, Bangalore on 22/02/2019 in case No.KMA/12038/APL/2018.
4. Endorsement issued by the Public Information Officer and Tahsildar, Kunigal Taluk on 10/08/2017 with regard to Saguvali Chit, dated 01/08/1935 for land in Sy.No.160 of Jaladagere Village.
5. Endorsement issued by the Tahsildar, Kunigal Taluk 10/10/2017 for distribution of Manure subsidy to the grand father of the petitioner late Venkategowda, son of late Shetty Gowda on the basis of RTC for the year 1993-94.
6. Endorsement issued by the Tahsildar, Kunigal Taluk on 25/07/2018 informing that land in Sy.No.160, measuring 4 acres 2 guntas with old Sy.No.10 granted on 01/08/1938 by Venkategowda, son of Shetty Gowda (grand father of the petitioner) intimating the petitioner that records are not available in the record room.-: 13 :-
7. Copy of the order passed by the Karnataka Information Commissioner, Bangalore on 22/02/2019 in case No.KMA-11867 APL 2018.
16. Learned counsel for the appellant would contend that the additional documents sought to be produced substantiate the plaintiff's case and corroborate with the evidence already on record.
17. Per contra, learned counsel for the defendants would contend that the additional documents sought to be produced, cannot be permitted to be brought on record as the production of additional documents before the appellate Court is curtailed by the provisions of Order XLI Rule 27 of the CPC and further contend that the additional documents are not relevant for deciding the issues in dispute, but it is just to protract the proceedings.
18. The provision of Order XLI Rule 27 of the Code of Civil Procedure reads as under:
"27. Production of additional evidence in Appellate Court.--(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if ---: 14 :-
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."
In view of the wording appearing under Order XLI Rule 27 of the CPC, "requires any document to be produced or any witness to be examined to enable it to pronounce judgment", the application for additional documents needs to be considered.
19. In the present case, the additional documents and the additional evidence sought to be brought on record -: 15 :- are the letters to the Tahsildar and the endorsement issued by the Tahsildar stating that the saguvali chit dated 01/08/1935 is not found. The said application filed under Order XLI Rule 27 of the CPC does not satisfy the parameters which are condition precedents to file an application under Order XLI Rule 27 of the CPC. Even if the application is allowed, it would be a futile exercise as it would not be relevant to support the contention of the plaintiff's case. In view of these reasons, I.A.No.1 is rejected as devoid of merits as the additional documents are not required to enable this Court to pronounce the judgment in the present appeal.
In view of the above, point No.1 raised in the present appeal is answered in the negative.
20. The suit is related to land bearing Sy.No.160 of Jaladagere Village, measuring 4 acres 12 guntas is inclusive of 10 guntas kharab land. The plaintiff and defendants claimed to be the owners in possession of the suit land in view of the grant by the Government on 01/08/1935.
21. The plaintiff's contention is that the Government, on 01/08/1935, had granted the suit land to -: 16 :- Venkategowda, son of Shettygowda the paternal grand- father of the plaintiff and till his death, he was in possession and cultivation of the suit land and after his death, the plaintiff's father was cultivating and on the death of his father, it is the plaintiff, who is in possession and enjoyment of the suit property. It is contended that defendant Nos.1, 8 and 13 got their names entered in the RTC extract without there being any right over the suit land and taking advantage of the name "Venkategowda" which is the name of grand-father of the plaintiff and which is also the name of father of defendant Nos.1, 8 and 13. Thus, the plaintiff filed the suit for declaration to declare that the sale deed executed by defendant Nos.1 to 16 in favour of defendant No.17 is not binding on him and for mandatory injunction directing defendant No.17 to hand over possession of the suit schedule property. 22. On the other hand, defendant Nos.1 to 16 contended that the Government has granted the land i.e., the suit land in favour of his father Venkategowda, son of Buddegowda and the revenue records stand in his name and after his death, the name of defendant No.1 Govindaiah was entered in the revenue records and on an -: 17 :- application filed by the said Govindaiah for conversion of the agricultural land Sy.No.160, the Deputy Commissioner had accorded permission for conversion by Order dated 22/04/2008 and in view of the right in favour of the defendants, they have executed a registered sale deed dated 25/04/2008 in favour of defendant No.17.
23. The plaintiff, in order to prove his case, got examined himself as PW.1 and reiterated the averments made in the plaint. Ex.P-1 is the certified copy of the khatha with regard to the suit schedule property. Ex.P-2 is the passbook pertaining to agricultural equipments which stands in the name of Venkategowda, son of Shettygowda issued by the Department of Agriculture, Government of Karnataka, to get a subsidy for the purchase of agricultural equipments. Exs.P-3 and P-4 are the letters issued to the Tahsildar requesting to transfer the khata of the suit schedule property in the name of the plaintiff. Ex.P-5 is the endorsement issued by the Tahsildar. Ex.P-6 is the certified copy of the sale deed dated 25/04/2008. Ex.P-7 is the encumbrance certificate. Ex.P-8 is the certificate issued by the Department of Industries and Commerce, Government of Karnataka. Ex.P-10 is the certificate issued -: 18 :- by the Directorate of Industries and Commerce. In all, plaintiff got marked 19 documents.
24. On behalf of defendant No.1, he got examined himself of DW.1 and got marked 32 documents as per Exs.D-1 to D-32. Exs.D-1 to D-18 are the RTC extracts pertaining to the suit schedule property, wherein the name of the father of defendant No.1 i.e., Venkategowda, son of Buddegowda appears in column No.9 as well as in column No.12(2). Ex.D-19 is the genealogical tree, Ex.D-20 is the mutation register extract which shows that the name of defendant No.1 was mutated in the revenue records with no objection from other brothers with regard to the suit schedule property. Ex.D-21 is the patta receipt book standing in the name of defendant No.1. Ex.D-22 is the Official Memorandum issued by the Deputy Commissioner for having converted the land for the purpose of industry in view of the application given by defendant No.1. Ex.D-23 is the blue sketch, Ex.D-24 is the plan belonging to defendant No.17/company. Exs.D-25 and D-26 are encumbrance certificates. Ex.D.27 is the 'B' report copy in Cr.No.127/2010. Ex.D-28 is the certified copy of the mahazar, Exs.D-29 to D-31 are the certified copies of the -: 19 :- statement of Girigowda, son of Venkategowda, Umesha and Buddegowda. Ex.D-32 is the general licence issued by Yadgiri Grama Panchayat in favour of defendant No.17 on 28/04/2008. Defendant No.17 got examined himself as DW.2 who is the purchaser of suit schedule property and Ex.D-33 is the invitation card to show the inaugural function of M/s. Floor Mill Private Limited.
25. Admittedly, when the plaintiff is claiming his right by way of a grant by the Government in favour of his grand-father Venkategowda, son of Shettygowda, he has not sought for declaration of title of the suit property as required under law. Without there being a declaration of title by the plaintiff, mere suit for declaration that the sale deed dated 25/04/2008 executed by defendant Nos.1 to 16 in favour of defendant No.17 as void ab initio and not binding on the plaintiff and for mandatory injunction directing to deliver possession would not be maintainable.
26. The dispute is regarding the suit property bearing plaintiff's grand-father's name Venkategowda and defendant Nos.1 to 16 claim that their father's name is Venkategowda. The only difference is 'surname' which is -: 20 :- not in dispute. According to the plaintiff, Venkategowda, son of Shettygowda is his grand-father and according to the defendant, Venkategowda, son of Buddegowda is his father. The name of Venkategowda, son of Buddegowda has appeared in the revenue records as per Exs.D-1 to D-18. The plaintiff has not produced a single document to show the grant made in favour of his grand-father by the Government on 01/08/1935. Though he has not sought for declaration of his title, he tried to establish a case stating that on 01/08/1935, there was a grant in favour of his grand-father.
27. A careful perusal of the entire documents and the evidence on record would establish that the land was granted to the defendant's father on 01/08/1935 and his name appears in the revenue records from the year 1935 till his death and after his death, it was in the name of defendant No.1, which was entered with the consent of the other brothers and subsequently, on the sale made by defendant Nos.1 to 16 in favour of defendant No.17, the name of defendant No.17 was entered in the year 2008. The plaintiff did not produce any documentary evidence before the trial Court and only relies on the passbook which -: 21 :- he claims is in the name of Venkategowda, son of Shettygowda to show that the agricultural equipments have been issued by the Department of Agriculture. Other than the said document, no other document has been produced before the trial Court.
28. In the case of Anathulla Sudhakar vs. P.Buchi Reddy (dead) by LRs and others [(2008)4 SCC 594], at paragraphs 13 to 16 and 21, it is held as under:
13. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.
13.1. Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.
13.2. Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot -: 22 :- seek the relief of injunction simpliciter, without claiming the relief of possession.
13.3 Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.
14. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for -: 23 :- injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title.
15. In a suit for permanent injunction to restrain the defendant from interfering with plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and defendant tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may prove physical or lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Even in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue in such a suit, though it may arise incidentally or collaterally.
16. But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such -: 24 :- cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was at issue, the court should not decide the issue of title in a suit for injunction. The proper course is to relegate the plaintiff to the remedy of a full-fledged suit for declaration and consequential reliefs.
x x x
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 -: 25 :- consequential injunction. Where there is merely an interference with 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 (supra)].
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 -: 26 :- simple and straight-forward, 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 plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case."
The Hon'ble Apex Court held that when there is a cloud raised over the plaintiff's title and he does not have possession, a suit for declaration and possession with or without consequential injunction is the remedy and cloud is said to be raised over the person's title when some apparent defect in his title to a property or when some prima facie right of a third party over it, is made out or shown. Thus, a declaration of title by the plaintiff is necessary when there is a cloud on the title of the plaintiff to the property. Since the plaintiff has not sought for declaration of his title over the suit property, the plaintiff is not entitled for declaration that the sale deed executed by -: 27 :- defendant Nos.1 to 16 in favour of defendant No.17 is not binding on him and the plaintiff is not entitled to seek for possession without establishing his right over the suit property. The trial Court, after assessing all these facts and circumstances, has rightly held that the plaintiff has failed to prove the title over the suit property and the plaintiff is taking advantage of the fact that the name of the grand-father and the father of defendant No.1 is same, forgetting that he has no other evidence against the defendants.
29. In view of the above, the point No.2 raised for consideration in the present appeal is answered in the negative, holding that the appellant has not made out any case to interfere with the impugned judgment and decree passed by the Trial Court.
30. For the reasons stated above, we pass the following:
ORDER
(i) The Regular First Appeal is dismissed.
(ii) The impugned judgment and decree dated 08/10/2013 made in O.S.No.7/2011 on the file -: 28 :- of the Senior Civil Judge and JMFC, Kunigal, is hereby confirmed.
(iii) This Court, while condoning the delay, by the Order dated 11.01.2017 directed the appellant to pay cost of Rs.25,000/-. Accordingly the appellant had deposited the said amount of Rs.25,000/- on 20/01/2017 before this Court.
In view of the dismissal of the Appeal on merits, the Registry is directed to transmit the said amount to the Karnataka State Legal Services Authority forthwith.
Sd/-
JUDGE Sd/-
JUDGE S*