Karnataka High Court
Sri M V Subramanya vs State Of Karnataka on 10 October, 2025
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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NC: 2025:KHC:40109
RSA No. 1164 of 2012
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF OCTOBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAVI V HOSMANI
REGULAR SECOND APPEAL NO. 1164 OF 2012 (INJ)
BETWEEN:
1. SRI M V SUBRAMANYA,
SINCE DECEASED BY HIS LRs
1(a) SMT. USHA SUBRAMANYA,
W/O LATE M.V.SUBRAMANYA,
AGED ABOUT 63 YEARS,
1(b) SRI ABHISHEK SUBRAMANYA,
S/O LATE M.V.SUBRAMANYA,
AGED ABOUT 42 YEARS,
BOTH ARE R/A NO.551, 1ST MAIN,
RMV EXTENSION, II STAGE,
BENGALURU - 560 094.
...APPELLANTS
[BY PROF. CM NAGABHUSHANA, ADVOCATE FOR
SRI SB SRINIVASA, ADVOCATE (PH)]
AND:
Digitally signed by 1 . STATE OF KARNATAKA,
GEETHAKUMARI BY SECRETARY TO GOVT.,
PARLATTAYA S DEPARTMENT OF REVENUE,
Location: High KARNATAKA GOVT SECRETARIAT,
Court of Karnataka BANGALORE-560 001.
2 . THE TAHSILDAR,
MALAVALLI TALUK,
MALAVALLI.
3 . THE TOWN MUNICIPAL COUNCIL,
MALAVALLI, BY ITS CHIEF OFFICER,
MALAVALLI.
...RESPONDENTS
[BY SRI MILIND DANGE, AGA, FOR R1 & R2 (PH);
SRI SHARANJITH SHETTY, ADVOCATE FOR R3 (PH)]
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NC: 2025:KHC:40109
RSA No. 1164 of 2012
HC-KAR
THIS RSA FILED U/S. 100 OF CPC AGAINST THE JUDGMENT &
DECREE DATED 07.4.2012 PASSED IN R.A.NO.10/2008 ON THE FILE
OF THE SENIOR CIVIL JUDGE AND JMFC., MALAVALLI, DISMISSING
THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED
17.4.2008 PASSED IN O.S.NO.387/1989 ON THE FILE OF THE CIVIL
JUDGE (JR.DN) MALAVALLI.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 02.05.2025, THIS DAY, THE COURT PRONOUNCED
THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI
CAV JUDGMENT
Challenging judgment and decree dated 07.04.2012 passed by Senior Civil Judge, Malavalli, in RA no.10/2008 and judgment and decree dated 17.04.2008 passed by Civil Judge, (Jr.Dn.), Malavalli, in OS no.387/89, this appeal is filed.
2. Sri CM Nagabhushana, learned counsel appearing for Sri SB Srinivasa, advocate for plaintiff no.2 submitted, appeal was by plaintiff no.2 in OS no.387/1989 filed by plaintiff no.1 - father of plaintiffs no.2 and 3 against defendants to declare plaintiffs as absolute owners in possession of property bearing Sy.nos.595/2 and 596, measuring 1 Acre 14 guntas and 1 Acre 25 guntas respectively, situated at Malavalli Town ('suit properties' for short), for relief of permanent injunction and direction to revenue authorities to enter plaintiffs' names in Columns no.9 and 12 of RTCs etc. -3- NC: 2025:KHC:40109 RSA No. 1164 of 2012 HC-KAR
3. In plaint, it was stated suit properties were originally purchased by Gowramma-mother of plaintiffs no.2 and 3 under sale deed dated 12.12.1946 and transferred to her husband-plaintiff no.1, in year 1958. Thereafter plaintiff no.1 hypothecated it to Excise Department under Deed of Hypothecation dated 18.12.1958. And in year 1960, plaintiff no.1 defaulted in paying bid amount of Excise contract and therefore, suit properties were allegedly sold in auction held on 29.11.1960, to defendant no.3 - Town Municipal Council, Malavalli ('TMC', for short) for Rs.3,135/-. It was stated, entire sale proceedings were invalid, inoperative and void in law for violating provisions of Mysore Land Revenue Code, 1888, ('Code', for short), even though sale was confirmed by order dated 07.03.1966.
4. It was stated RA no.91/1961-62 filed before Divisional Commissioner, Mysore, by one Chowdegowda was allowed setting aside order passed by Deputy Commissioner, Mysore ('DC', for short) setting aside confirmation of sale in favour of TMC. On remand, DC confirmed sale once again and directed TMC to be put in -4- NC: 2025:KHC:40109 RSA No. 1164 of 2012 HC-KAR possession of suit properties, but no right was transferred as sale was not registered. Moreover, plaintiffs were not made parties. Inspite of above, plaintiffs continued in possession of suit properties. In year 1964, entries in Column no.18 of Index of Land came to be changed in favour of plaintiff no.2. Thereafter, Records of Rights ('RoRs', for short) and Index of Land were mutated in name of plaintiff no.2, as per family arrangement and since year 1967, plaintiff no.2 was in possession and enjoyment and paying taxes and land revenue regularly. And on 23.03.1983, when Excise Commissioner demanded arrears from plaintiffs, same were paid and letter was issued to said effect at Ex.P42.
5. Further, TMC had no power or authority to participate in auction. Therefore, participation merely on basis of resolution and prevailing political situation was mala fide, in violation of Mysore Municipalities Act and contrary to law. In fact, TMC had no power to own agricultural land and purchase would be without authority of law. It was stated, letter by President of TMC to DC in year 1963 seeking refund of bid amount would indicate TMC had not taken sale certificate or possession of property. It was stated after 05.08.1965, there -5- NC: 2025:KHC:40109 RSA No. 1164 of 2012 HC-KAR were no proceedings for delivery of possession or execution of sale deed.
6. Thereafter, writ petition was filed before this Court by one Puttamadaiah for directing DC and TMC to take action in pursuance of sale dated 09.08.1965, which was disposed of on 21.11.1979 noting submission of counsel for Municipality that appropriate action would be taken. But, until 1985, no action was taken. Due to political rivalry, MLA began acting hostile to interest of plaintiff and persuaded Government to issue directions to TMC and Revenue Officials to take action. In pursuance of same, Government directed Divisional Commissioner, who directed DC and who in turn directed Tahsildar to take action. Only then, TMC filed application for mutation in RoRs. But, Tahsildar issued endorsement of refusal. Against same, Revision Petition under Section 136 (3) of Karnataka Land Revenue Act, 1964 ('KLR' for short).
7. Fact that TMC was aware of names of plaintiff no.1
- MV Venkatappa, in RoRs in year 1985, is established in correspondence, but no action was taken. And in challenge before DC, plaintiff had filed objections against maintainability, -6- NC: 2025:KHC:40109 RSA No. 1164 of 2012 HC-KAR as it was without authorization from Chief Officer. Moreover, TMC was aware of continuation of plaintiff's name in RoRs for decades and therefore, petition would not fall within purview of Sec.136 (3) of KLR Act. TMC did not claim possession was handed over to it. Consequently, order of DC was nullity and without jurisdiction. It was stated entry in Col.no.9 in RoR would not establish possession of TMC and still it was trying to take possession of suit property. Therefore, suit was filed.
8. On service of suit summons, defendants no.1 and 2 filed written statement contended that suit properties were mortgaged by plaintiff no.1 and on failure to redeem mortgage and for recovery of Excise dues, they were auctioned and after confirmation of sale by DC on 07.03.1961, possession was delivered to TMC on 26.06.1961. Plaintiffs had not challenged same. It was stated, amongst various writ petitions filed by plaintiffs, WP no.1610/1987 was dismissed as withdrawn on 06.02.1987 and until said order were set-aside, it would bind plaintiffs. Thus, plaintiffs had no right over suit properties and sought dismissal of suit.
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9. In its written statement, TMC admitted suit properties belonged to plaintiff no.1, but hypothecated to Government. It claimed, on failure to pay Excise arrears, they were auctioned on 29.11.1960, in accordance with law, in which TMC as highest bidder, purchased them. Auction sale was confirmed by DC in Excise no.664/EVR.54.55 on 07.03.1961 and possession delivered to TMC by defendant no.2, in Excise no.64/1959 on 20.06.1961. Since then, TMC was in possession and enjoyment of suit properties. Thus, plaintiffs had no right over suit properties.
10. It was stated, WP no.9439/1978 filed by one Puttamadaiah, against TMC, DC and plaintiff no.1 was disposed of on 21.11.1979. As plaintiff was party to it, he was aware of proceedings. In said petition, this Court noted admission by plaintiff no.1 about sale and request made to DC for release of suit property, which was rejected. As rejection was not challenged, it would bind plaintiffs. Having acquiesced to above proceedings, filing of suit was without locus standi. It was stated, names of plaintiffs no.2 and 3 were got mutated in collusion with defendant no.2. And on 20.01.1987, in RA (REV) no.47/86-87 filed by TMC, Special Deputy Commissioner, -8- NC: 2025:KHC:40109 RSA No. 1164 of 2012 HC-KAR Mandya ('Spl.DC' for short), set aside mutations and mutate TMC as owner of suit properties. And though plaintiff questioned same in WP no.1610/1987, same was withdrawn on 06.02.1987. It was stated, plaintiff had made also allegations against Spl.DC in suit, but without impleading him. Non- impleading was fatal. Apart from above, failure to comply with Section 80 (1) of Code of Civil Procedure, 1908 ('CPC', for short), would also be fatal and sought its dismissal.
11. Based on pleadings, trial Court framed following issues:
1. Whether the plaintiffs prove that the revenue auction sale dated 29.11.1960 pertaining to the suit schedule property is invalid, inoperative and void in law?
2. Whether the plaintiffs prove that they are the absolute owners of the suit schedule properties?
3. Whether the plaintiffs further prove that they are in possession of the suit schedule property?
4. Whether the suit is bad for non-joinder of necessary party?
5. Whether the suit is not maintainable for the want of notice U/Sec.284 of Karnataka Municipalities Act?
6. Whether the suit is not maintainable for the want of Sec.80 C.P.C. notice?
7. Whether there is cause of action for the suit?-9-
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8. Whether the defendants no.1 and 2 prove that the suit is barred by law of limitation?
9. Whether the plaintiffs are entitled for the relief of declaration of title?
10. Whether the plaintiffs are entitled for the relief of permanent injunction?
11. Whether the plaintiffs are entitled to have their names entered into Col.No.9 and 12 of R.T.C. in respect of said schedule properties?
12. What decree or order?
12. In trial, plaintiffs no.1 to 3 and two others deposed as PWs.1 to 5 and got marked Exs.P1 - Ex.P53, while an official of TMC deposed as DW.1 and got marked Exs.D1 to Ex.D21.
13. In meanwhile, plaintiffs filed memo restricting suit only for relief of permanent injunction. Taking note of same and on consideration, trial Court answered issues no.3 and 10 in negative and issue no.12 by dismissing suit, by treating other issues as abandoned.
14. Aggrieved plaintiff no.2 filed RA 10/2008 on various grounds. Based on same, first appellate Court framed following points:
1. Whether the plaintiffs prove that, they are in possession of the suit schedule property?
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2. Whether the plaintiffs proves that, they are entitle for the relief of Permanent Injunction, as prayed for in the plaint?
3. Whether Appellants/Plaintiffs have made out grounds to interfere in the Judgment and Decree passed by the Trial Court in OS no.387/1989 dated 17.04.2008?
4. What order?
15. On consideration, it answered points no.1 to 3 in negative and point no.4 by dismissing appeal. Aggrieved thereby, plaintiff no.2 was in appeal.
16. It was submitted plaintiffs were in possession and enjoyment of suit properties. Though initially suit was filed for declaration of title, for permanent injunction and for direction to revenue authorities to mutate name of plaintiffs in RoRs, since plaintiffs' title was not disputed, relief of declaration was not pressed.
17. It was submitted suit properties originally belonged to mother of plaintiffs no.2 and 3, who transferred them to plaintiff no.1 in 1958. Thereafter on 18.12.1958, plaintiff no.1 executed Hypothecation Deed in favour of Excise Department. Defendants claimed for failure to pay dues, suit properties were bought for sale in public auction on 29.11.1960, wherein TMC
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NC: 2025:KHC:40109 RSA No. 1164 of 2012 HC-KAR bid and purchased them for Rs.3,135/-. It was contended participation by TMC was without sanction mandated under Section 38 (3) (b) and (c) of Code and void ab initio. Consequently, no title passed.
18. It was submitted Section 97 of Code, merely enables superior holder to apply to DC for assistance in recovery of arrears in manner prescribed in Chapter-XI of Code. And on filing of application, DC was to cause service of notice on owner and hold summary enquiry for rendering assistance. And if it appeared to DC that claim was complicated, assistance could be refused or extended only to extent of assessment fixed on said land.
19. Further, Rule 3 (2) of Mysore Land Revenue Rules ('Rules', for short) mandated sale by auction not below upset price fixed by AC. It was submitted Rule 98 of Rules, stipulated sale of property by DC only where value exceeded Rs.2000/-; Rule 99 mandated sale to be held on day named in proclamation and continued day-to-day, while Rule 99 (b) provided for fixation of upset price by DC. It was submitted such procedure was not complied nor material produced to
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NC: 2025:KHC:40109 RSA No. 1164 of 2012 HC-KAR show confirmation of sale. It was submitted, even assuming for sake of argument that sale and its confirmation were valid, then as mandated under Section 187 of Code, DC was required to put purchaser in possession, get name entered in revenue records and grant certificate to that effect. But, DC neither put TMC in possession nor got its name entered in revenue records. Even, TMC failed to establish its possession.
20. On other hand, after death of plaintiff no.1, names of plaintiffs no.2 and 3 were mutated, establishing their possession. And though TMC pleaded defendant no.2 had delivered possession of suit properties as per Ex.D2, as admitted by DW.1, Ex.D2 was prepared without reference to any other record, did not bear seal of TMC or mentioned any number. It was submitted, Section 187 of Code does not empower Tahsildar to deliver possession and when provision provided specific procedure for sale and delivery of possession, in order to be lawful, it should be done in that manner or not at all and relied on ratio in Babu Verghese v. Bar Council of Kerala, reported in (1999) 3 SCC 422 as follows:
"31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of
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NC: 2025:KHC:40109 RSA No. 1164 of 2012 HC-KAR this rule is traceable to the decision in Taylor v. Taylor [(1875) 1 Ch D 426: 45 LJCh 373] which was followed by Lord Roche in Nazir Ahmad v. King Emperor [(1936) 63 IA 372: AIR 1936 PC 253] who stated as under:
"Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all."
32. This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of V.P. [AIR 1954 SC 322: 1954 SCR 1098] and again in Deep Chand v. State of Rajasthan [AIR 1961 SC 1527: (1962) 1 SCR 662]. These cases were considered by a three-Judge Bench of this Court in State of U.P. v. Singhara Singh [AIR 1964 SC 358: (1964) 1 SCWR 57] and the rule laid down in Nazir Ahmad case [(1936) 63 IA 372: AIR 1936 PC 253] was again upheld. This rule has since been applied to the exercise of jurisdiction by courts and has also been recognised as a salutary principle of administrative law."
(emphasis supplied)
21. It was submitted, non-consideration of admission by DW1, while answering contentious issue no.3 and point no.1 rendered findings by both Courts gravely erroneous and liable for interference. Further, both Courts had not considered that Ex.P44 would establish plaintiff's lawful possession over suit properties and TMC's claim about its possession was without any acceptable evidence. Ex.P45 was letter written by TMC to DC seeking possession of suit property and change of khata in its favour. It also contains admission that plaintiff no.1 had got
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NC: 2025:KHC:40109 RSA No. 1164 of 2012 HC-KAR khata (Bagarhukum) in his children's name and that they were in unlawful possession. Apart from above, plaintiffs had sought information about arrears of Excise Duty due and payable and for return of property. Said letter was erroneously interpreted by both Courts, instead of as simple letter for release of property from mortgage in favour of Excise department, a letter written by plaintiff no.1 for delivery of possession.
22. It was submitted both Courts ignored that Ex.P38 - order passed in WP no.9439/1978 would bind TMC, as it was party to it. And though contended by TMC that Ex.P37 - order of DC dated 09.08.1965 indicated delivery of possession to TMC, it had not initiated proceedings for dispossession of plaintiffs from suit properties.
23. Thus, there was no documentary evidence to show TMC had taken possession of suit properties following procedure under Section 187 of Code, except Ex.D2, which according to DW1 was a created document. Said evidence supported plaintiffs' case. Contrary to it, both Courts erroneously held TMC was in possession, which were wholly unsustainable in law. Both Courts also erred in ignoring impute
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NC: 2025:KHC:40109 RSA No. 1164 of 2012 HC-KAR of Ex.P36 - letter by President of TMC to DC about failure to mutate name of TMC and delivery of possession, resulted in miscarriage of justice. It was submitted both Courts had not properly considered Form-V and VI and other material documents produced by plaintiffs, which would render concurrent findings against plaintiff contrary to material on record.
24. It was submitted, subject of Ex.D4 letter dated 04.02.1987 by defendant no.2 to TMC was delivery of possession of suit properties to TMC indicating TMC was not in possession. Further, defendant no.2 exceeding jurisdiction in mutation of records in name of TMC, permission granted to produce records to get police help for putting up fence around suit properties, demonstrated collusive acts of defendants no.1 to 3. Even said fact was not appreciated by both Courts.
25. It was submitted, DW.1 admitted in cross- examination that Exs.P4 to P30 - RoRs were not standing in name of TMC, but in name of late plaintiff no.1. Same would be admission about lawful possession of plaintiffs over suit properties. On contrary, as per Ex.P44 and P45, TMC had
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NC: 2025:KHC:40109 RSA No. 1164 of 2012 HC-KAR sought possession of suit properties from DC. Such being case, change of entries in columns no.9 and 12 of RoRs in respect of suit properties would be illegal and demonstrate that TMC was using political pressure and got created documents in collusion with revenue authorities.
26. It was further submitted rejection of application filed under Order XXII Rule-3 of CPC filed by plaintiff no.2 to bring LRs of plaintiff no.1 on record was without proper consideration and resulted in miscarriage of justice.
27. It was thus submitted non-consideration of positive and substantive evidence in favour of plaintiff about failure by defendants to establish auction sale in compliance with mandatory provisions of Section 187 of Code read with 98 and 100 of Rules resulted in findings contrary to material on record. It was submitted, as material established plaintiffs being in possession continuously for more than 49 years, any semblance of right or interest of TMC, stood extinguished.
28. It was submitted first appellate Court gravely erred in not referring to case law on which strong reliance was placed by plaintiffs. After extraction, they were brushed aside in one
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NC: 2025:KHC:40109 RSA No. 1164 of 2012 HC-KAR assertion that they would not apply, would amount to failure by first appellate Court to exercise its powers under Section 96 of CPC. On said ground, sought for answering substantial question of law in favour of plaintiff and allow appeal.
29. In support of submissions, learned Counsel relied on following decisions:
Citations Proposition of Law 1. Hafazat Hussain v. Abdul That, rule of non-interference Majeed, reported in (2001) 7 against concurrent findings SCC 189 and S. Jagadish v. under Section 100 of CPC is Dr.S. Kumaraswamy & Ors., not absolute and intervention reported in ILR 2008 KAR permissible when judgment 87. of both Courts vitiated due to perversity,based on surmises or misreading of material on record. 2. Kishen Lal v. Ganga Ram & Innocent purchaser for value Anr., reported in (1890) 13 without notice allowed All 28. preference where nature of encumbrance set up is merely charge on property not amounting to mortgage. 3. Shiralakoppa Town That, transfer of property by Municipality v. Shree purchaser in auction sale Sharda Rice Mills & Ors. valid on issuance of (ESA no.76/1977 disposed of certificate and not mere on 15.10.1981). holding of auction sale or its confirmation. 4. Shiva Martand Tapkire and Acceptance of bid at auction Anr. v. Arun Nankchand sale does not result in Khatri & Anr., reported in transfer of title to bidder. It
AIR 1969 Bombay 93. only creates certain rights and obligations, which could be set-aside on ground of incompetency of minor to enter into contract.
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5. Ramegowda dead by his That, person in peaceful Lrs. v. M.Varadappa Naidu possession cannot be dead by his LRs. & Anr., dispossessed, without due reported in 2004 (1) SCC process of law. 769; Puran Singh and Ors.
v. State of Punjab, reported in 1975 (4) SCC 518 and Patil Exhibitors (P) Ltd. v.
Corporation of the City of Bangalore, reported in 1985 SCC OnLine Kar 329
6. Poona Ram v. Moti Ram & Person who asserts Ors., reported in 2019 (11) possessory title over property SCC 309. has to show that he is in settled or established possession. Merely stray or intermittent acts of trespass would not hold good against true owner.
7. Esjaypee Impex (P) Ltd. v. Section 89 (2) and (4) of Canara Bank, reported in Indian Registration Act, (2021) 11 SCC 537 1908, mandates Certificate of Sale of immovable properties to be sent to jurisdictional Registering Officer.
8. Cosmos Coop. Bank Ltd. v. Though transaction evidenced Central Bank of India, by prior unregistered reported in 2025 SCC OnLine document is valid in itself, SC 352 yet any title or interest created by it is liable to be defeated under rule of priority by a valid later and legal sale or mortgage evidenced by a duly registered document.
9. Ma Hnin Yeik & Ors. v. If mortgagor defaults, KARK Chettyar Firm, mortgagee has right to cause reported in AIR 1939 mortgaged property to be Rangoon 321. sold, but not without intervention of Court. Sale without intervention of Court would be invalid 10 Corporation of Calcutta v. In order to satisfy Promotho Nath Mullick, requirement of Section 78 of reported in AIR 1915 Evidence Act, mere Calcutta 428. production of copy of
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RSA No. 1164 of 2012
HC-KAR
resolution of Municipality
would not suffice.
11 State of Karnataka & Anr. v. That, Sections 24 and 25 of
Karnataka Appellate Karnataka Land Revenue Act,
Tribunal, Bengaluru & Anr., 1964, empower Asst.
reported in 1995 (5) KLJ Commissioner to review or
305. recall any order if it is
palpably wrong or suffers
from error apparent on face
of record.
30. On other hand, Sri Sharanjith Shetty K.M., learned counsel appearing for TMC opposed appeal. At outset, it was submitted, plaintiffs admitted Ex.P3 - mortgage of suit properties in favour of defendant no.2, with specific provision that on failure to pay mortgage amount, suit properties would be auctioned for recovery of due amount. It was submitted suit properties were auctioned by defendants no.1 and 2, in which TMC was successful bidder and properties were allotted to it. Thereafter, TMC received sales certificate and has been in possession. It was submitted, fact that auction was not challenged, stood testimony about loss of right over suit properties by plaintiffs. Therefore, plaintiffs would have no claim of any right or possession over same.
31. It was further submitted, initially suit filed was for reliefs of declaration and permanent injunction, but later
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NC: 2025:KHC:40109 RSA No. 1164 of 2012 HC-KAR confined only for permanent injunction by filing memo. It was submitted, plaintiffs' contention that TMC had admitted title and therefore suit was confined for relief of permanent injunction was without any basis. In fact, when plaintiffs' title is in cloud, without prayer for declaration of title, suit for permanent injunction would not be maintainable. It was submitted even plaintiff's claim of being in possession was without any basis. Except mere assertion, plaintiff had not produced any material or examined witness to establish possession as on date of suit. Considering same, both Courts had rightly dismissed suit.
32. It was submitted in a suit for permanent injunction, contentions about legality/validity of auction could not be gone into. Moreso, as plaintiff had not challenged auction. It was submitted, though TMC received possession on date of auction and was in continuous possession since then, suit for bare injunction filed after lapse of more than 27 years was not maintainable.
33. It was submitted mutation of names of plaintiffs in revenue records was in collusion with revenue officials and
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NC: 2025:KHC:40109 RSA No. 1164 of 2012 HC-KAR rightly set-aside in appeal by DC, directing defendant no.2 to mutate name of TMC. It was submitted, though said order was challenged in WP no.1610/1987, disposed on 06.02.1987 reserving liberty to plaintiffs to exhaust alternative remedies. Said order attained finality. In view of same, suit was not maintainable.
34. Relying decision of Hon'ble Supreme Court in Padhiyar Prahladji Chenaji v. Maniben Jagmalbhai, reported in (2022) 12 SCC 128, it was submitted, main reliefs sought by plaintiff in suit was for declaration and permanent injunction against disturbing plaintiff's possession, which was consequential relief. When, plaintiff abandoned prayer for declaration of title over suit properties, suit for permanent injunction which was consequential relief, prayer for permanent injunction must fail. On above grounds sought dismissal of appeal.
35. Sri Milind Dange, learned AGA for defendants no.1 and 2 also opposed appeal. At outset, it was submitted suit for permanent injunction was filed without any documentary evidence to establish lawful possession. On consideration, both
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NC: 2025:KHC:40109 RSA No. 1164 of 2012 HC-KAR Courts concurrently held plaintiff had failed to establish lawful possession over suit properties. It was submitted, concurrent findings could not be interfered in second appeal.
36. It was submitted Ex.P3, would reveal specific recital that in event of default of payment of money to State under contract, State would be at liberty to cause mortgaged property to be sold in order to satisfy claims which were due and in event of excess amount received, same to be paid to mortgagor personally. It was submitted admitted mortgage and plaintiffs being legal heirs neither have right or interest to deny sale of property for due arisen. It was further submitted, plaintiffs' suit for permanent injunction would not be maintainable in view of Section 69 (3) of Transfer of Property Act, 1882 ('TP Act', for short) which read as under:
"69. Power of sale when valid.-- A mortgagee, or any person acting on his behalf, shall, subject to the provisions of this section, have power to sell or concur in selling the mortgaged property, or any part thereof, in default of the payment of mortgage-money, without the intervention of the Court, in the following cases and in no others, namely:--
.........
.........
(3) When a sale has been made in professed exercise of such a power, the title of the purchaser shall not
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NC: 2025:KHC:40109 RSA No. 1164 of 2012 HC-KAR be impeachable on the ground that no case had arisen to authorise the sale, or that due notice was not given, or that the power was otherwise improperly or irregularly exercised; but any person damnified by an unauthorised or improper or irregular exercise of the power shall have his remedy in damages against the person exercising the power. ... ... ..."
37. In view of above provision, plaintiffs' contention against invalidity of irregularity of auction proceedings etc would not hold and only remedy to file suit for damages. Thus filing of instant suit for bare injunction would not be maintainable.
38. It was submitted since there was no dispute about mortgage, in absence of any efforts by mortgager or his successors to redeem mortgage, present suit by plaintiffs would be without basis. It was submitted even Rule 193 (A) of Code states, mortgagor has to seek redemption. As admittedly plaintiffs had not sought for redemption, taking note of implied clause in Ex.P3 and excising powers under provisions of law, auction was held and suit properties sold to TMC.
39. It was submitted Section 21 and 25 of Excise Act, 1901, provide powers on Excise Authorities to levy dues and
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NC: 2025:KHC:40109 RSA No. 1164 of 2012 HC-KAR Section 28 power for sale of mortgaged property. It was submitted Rules 187 to 191 of Rules, provide for general sale and Rule 197 (2) mandates sale of mortgage property and would clearly establish that with due procedure, auction was held. Thus there was compliance with provisions of law. And after auction, possession handed over to TMC, WP no.9439/1978 (Ex.P38) was filed by Puttamadaiah and others against defendants and plaintiffs herein seeking eviction of plaintiff from suit properties. While disposing said petition, this Court observed direction issued by DC to defendant no.2 for change of khata in favour of TMC and fix boundaries. It also observed submission of TMC that it would take steps to secure its rights under auction. It was submitted said submissions/observations were made in presence of plaintiff no.1, who was duly represented, but had neither objected to submissions nor whispered about validity of auction. Having thus, acquiesced in auction, plaintiff cannot later challenge or seek for invalidation of auction proceedings, that too in a suit for bare injunction.
40. It was submitted, though possession was handed over to TMC, alleged resolution dated 08.09.1986 was
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NC: 2025:KHC:40109 RSA No. 1164 of 2012 HC-KAR completely forged, fabricated and produced as Ex.P40 only to grab property of TMC. It was submitted, Ex.P48 and Ex.P49 were Revision Petition and objections filed by TMC for mutation of its name, plaintiffs had illegally got their names mutated. It was submitted, on detailed consideration, under order at Ex.P47, DC directed for change of entries in name of TMC. Though said order was challenged before this Court in Ex.D20 (WP no.1610/1987), same was withdrawn. It was submitted above proceedings would indicate defendants had exercising procedure under law had put suit properties for auction, held auction and confirmed sale in favour of TMC and handed over possession to it.
41. It was submitted having failed in earlier litigation, filing of present suit was only to drag proceedings in frivolous litigation. In support of his contentions, learned counsel relied on decision of this Court in case of State of Mysore v. Dasappa Naidu, reported in 1968 (1) Mys.LJ 69, for proposition that when rent was due and there was failure to pay arrears for Government, properties could be sold under revenue proceedings. He also relied on Division Bench decision of High Court of Madras in case of M.Shanmugam Chettiar v.
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NC: 2025:KHC:40109 RSA No. 1164 of 2012 HC-KAR Manilal J. Sheth and Ors., reported in ILR 1966 Mad. 471 for proposition that auction became effective from date of auction sale and suit was highly belated.
42. He also relied on decision on Hon'ble Supreme Court in case of B.Aravind Kumar v. Govt. of India and Ors. reported in 2007 (5) SCC 745, for proposition that when property is sold by public auction in pursuance of order of Court and bid is accepted, sale confirmed by Court in favour of purchaser, sale becomes absolute and title vest in purchaser. Sale certificate is issued to purchaser only when sale becomes absolute. It is well settled when auction purchaser derives title on confirmation of sale in his favour and sale certificate is issued evidencing such sale and title, no further deed of transfer from Court is contemplated or required. On above grounds learned counsel sought for dismissal of appeal.
43. Heard, learned counsel for parties, perused impugned judgment and decree and records.
44. This second appeal is by unsuccessful plaintiff in suit for permanent injunction against concurrent findings. As per plaintiff, suit properties were hypothecated in favour of
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NC: 2025:KHC:40109 RSA No. 1164 of 2012 HC-KAR Excise Department by plaintiff no.1, who failed to pay bid amount for Arrack License for year 1960. And for which, defendants' claim to have put suit properties to auction, wherein they were purchased by TMC and which was put in possession and its name entered in revenue records. Denying such auction and claiming to have continued in possession, suit was filed. In this background, initially, they had sought for relief of declaration of their title as well as for relief of permanent/mandatory injunction. On other hand, in its written statement, defendant no.3 asserted its right over suit properties as auction purchaser put in possession and its name appearing in revenue records.
45. As per rival contentions, trial Court framed issues, with validity of auction as issue no.1. And taking note of memo filed by plaintiff abandoning relief of declaration and it only considered/answered issues no.3, 10 and 12 and treated other issues as abandoned.
46. Admittedly, failure to answer issue no.1 was not questioned either before first appellate Court or before this
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NC: 2025:KHC:40109 RSA No. 1164 of 2012 HC-KAR Court and Appeal is admitted on only substantial question of law i.e.:
"When the suit property, owned by the appellant was sold in auction on 29.11.1960, in the absence of any evidence of handing over and taking possession of the suit property and when all the records reveal the appellant's possession, whether the Courts below were justified in refusing a decree of injunction"?
47. Contentions urged by plaintiff in this appeal are firstly that though appeal is by plaintiffs against concurrent findings, bar against interference with concurrent findings is not absolute, relying upon ratio in Hafazat Hussain's case (supra). There cannot be any quarrel about said position in law, except that interference warrants only if judgments are vitiated by perversity or based on surmises or due to misreading of material on record.
48. It is also noted that grounds urged herein namely that Section 97 of Code mandates issuance of notice, holding of summary enquiry by DC, failure to fix upset price by AC, non- conduct of auction by DC even when value of property was more than 2,000/-, failure of DC to cause name of auction purchaser entered in RoRs, delivery of possession and grant Certificate are contentions virtually challenging validity of
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NC: 2025:KHC:40109 RSA No. 1164 of 2012 HC-KAR auction proceedings. Even contention that participation of TMC in auction proceedings was without mandatory sanction would be supplementary.
49. As noted above, defendants have opposed appeal primarily on ground that suit for permanent injunction without declaration of title would not be maintainable, especially, when TMC was specifically staking claim of title over suit properties as auction purchaser, put in possession. Defendants also contend, having abandoned prayer for declaration and trial Court having treated all issues than issues no.3, 10 and 12 as abandoned, whether plaintiff could be permitted to urge contentions against auction sale.
50. Question, whether abandonment of any part of claim would estopp plaintiff arose for consideration before Division Bench of this Court in Manjula v. Basalingavva, reported in 2023 SCC OnLine Kar 1551, wherein specific point was framed for consideration and answered as follows:
"29. In view of the rival submissions of both the sides, the points that would arise for our consideration are:
i) Whether the appellants/defendants 7 to 9 are right in claiming any benefit from
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NC: 2025:KHC:40109 RSA No. 1164 of 2012 HC-KAR abandonment of the claim of the plaintiff against the defendants 5 and 6?
.........
.........
.........
44. Therefore, the argument of the counsel for the appellants cannot be accepted and defendant nos. 7 to 9 cannot take such benefit. Therefore, point no. 1 raised supra is answered in the negative and accordingly it is answered."
(emphasis supplied)
51. In view of above, it has to be held that abandonment of any part of suit claim does not amount to rejection of said relief. Said conclusion would not however foreclose contention of defendants that in present case, a prayer for declaration of title by plaintiffs or against validity of auction proceedings was imperative in order for plaintiffs to substantiate claim for permanent injunction.
52. As noted above, based on plaintiffs' memo, trial Court held issues other than issues no.3, 10 and 12 as abandoned i.e. even issue no.1 which was specifically framed for deciding validity of auction sale held on 29.11.1960, stood abandoned. Therefore, defendants would be justified in contending that plaintiff cannot urge contentions about invalidity of auction proceedings as part of his claim for permanent injunction by relying upon weakness of defendants'
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NC: 2025:KHC:40109 RSA No. 1164 of 2012 HC-KAR case. Hon'ble Supreme Court in case of Nagar Parishad, Ratnagiri v. Gangaram Narayan Ambekar, reported in (2020) 7 SCC 275, held that weakness of defendants' case would not entitle plaintiffs for decree. Therefore, both Courts were justified in considering plaintiff's case as a suit for bare injunction.
53. Next ground urged is about perversity of findings. While passing impugned judgment, trial Court noted PW.1 deposed that suit properties were mortgaged with Government as security for Excise Contract Bid amount and in proceedings by Chowdegowda before DC, there was direction to take possession of suit properties. And when DC called plaintiff no.1 to pay Excise dues, they were cleared and thereafter, President of TMC had sought refund of bid amount. It also noted, PW.1 alleged sale certificate was not issued to TMC and possession continued with plaintiffs and in Ex.P38, TMC admitted it was not in possession. It also noted, PW.1 admitted about suit properties standing in name of TMC, about plaintiffs' not challenging order of Spl.DC or auction and admitting that in 1965, he came to know that he was due only Rs.7,000/-. Trial
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NC: 2025:KHC:40109 RSA No. 1164 of 2012 HC-KAR Court noted conduct of PW.1 in not clearly admitting or denying suggestions, but responding with 'he does not remember'.
54. It referred to deposition of PW.2, wherein he stated, suit properties were purchased by his mother in 1946, transferred to plaintiff no.1 in 1958 and when TMC began interfering with possession, they approached High Court and on its suggestion, filed present suit. It found that deposition of PW.2 contradicted with Ex.D20 - showing that writ petition was withdrawn by plaintiffs themselves. It also contradicted with deposition of PW.1.
55. TC also noted that PWs 3 and 5 were Ex-Presidents of TMC, wherein PW.3 stated that TMC was never in possession and suit properties were never auctioned, but admitted in cross-examination that for recovery of excise dues suit properties were auctioned. It held deposition of PW.4 would be irrelevant, as he had only stated that plaintiff had purchased coconut saplings from him and planted in suit properties, when their existence was not pleaded.
56. It is also seen, referring to deposition of PW.5, wherein he stated, plaintiff no.1 was in possession of suit
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NC: 2025:KHC:40109 RSA No. 1164 of 2012 HC-KAR properties and they were not auctioned and purchased by TMC, it held PWs.3 and 5 having been councilors/members of TMC had chosen to sail with plaintiff without having any knowledge about auction proceedings. It is seen, trial Court also referred to evidence led by defendants, wherein Chief Officer of TMC, deposed as DW.1 and stated that TMC purchased suit properties in auction as per resolutions passed and sale was confirmed by order dated 03.07.1961. It opined admissions elicited about auction conducted by Excise Department, resolutions passed, date of taking possession and existence of coconut trees in suit properties would not be relevant as burden would be on plaintiffs to establish possession and not harp upon weakness of defendants.
57. At time of arriving at its conclusion, trial Court noted conduct of plaintiff firstly in abandoning prayer for declaration of title after conclusion of trial and secondly instead of clear assertions in plaint employing phrase "it appears that", to conclude that plaintiff's were uncertain about their case. It noted, despite purchase of suit properties in auction by TMC on 29.11.1960 and confirmation of sale by DC on 07.03.1961, plaintiff no.2 had got his name mutated in RoRs, which was
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NC: 2025:KHC:40109 RSA No. 1164 of 2012 HC-KAR set-aside by Spl.DC in appeal directing disciplinary proceedings against concerned Tahsildar, Revenue Inspector, Sheristedar and Village Accountant. It also noted plaintiffs no.1 and 2 had challenged order of Spl.DC in WP no.1610/1987, but got it dismissed as withdrawn with liberty to avail other remedies. And thereafter, when name of TMC was mutated, they questioned it before DC in RP no.85/1988, which was dismissed on 03.08.2001. From above, it concluded that from 1960, plaintiffs had involved in various litigations with regard to suit properties which met in dismissal/withdrawal.
58. It observed, in pleadings plaintiffs feigned ignorance about auction and issuance of sale certificate to TMC, but admitted same in deposition and also admitted that auction was never challenged by them. It therefore concluded, instead of plaintiffs establishing their case on own strength, were depending on weakness of defendants by relying upon correspondence/documents which came into existence during tenure of plaintiff no.1 as councilor of TMC. On above observations, trial Court concluded that plaintiffs had failed to establish possession over suit properties and answered issue
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NC: 2025:KHC:40109 RSA No. 1164 of 2012 HC-KAR no.3 in negative. Based on said finding, it answered issue no.10 in negative and issue no.12 by dismissing suit.
59. While passing judgment and decree, even first appellate Court referred to rival pleadings, issues framed, and grounds urged in appeal and framed points for consideration. While recording its finding on points no.1 and 2 about plaintiff establishing possession over suit properties and entitlement for relief of permanent injunction, it also noted conduct of plaintiffs earlier seeking for relief of declaration of title, but later restricting suit only for permanent injunction. It also noted conduct of plaintiff employment of phrase 'it appears that', was with intention to feign ignorance about auction proceedings.
60. It noted entries in RoRs in favour of plaintiffs were challenged by TMC before Spl.DC in appeal. It noted that during pendency of proceedings before Spl.DC, WP no.921/1987 was filed for direction to transfer said appeal proceedings, but as per Ex.D15, said writ petition was withdrawn. It noted Spl.DC had thereafter allowed appeal recording finding that plaintiffs had managed to get khata
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NC: 2025:KHC:40109 RSA No. 1164 of 2012 HC-KAR changed by using influence and ordered initiation of disciplinary proceedings against colluding revenue officials.
61. It noted, though plaintiffs no.1 and 2 had challenged said order in writ petition, same was withdrawn with liberty to avail other remedies and thereafter filed suit. It also noted that plaintiffs challenge of mutation of name of TMC in RoRs ended in dismissal of appeal. It also noted that in WP no.9439/1978 filed by Puttamadaiah and others, there was reference to auction of suit properties for recovery of excise dues, about confirmation of sale and purchase by TMC and plaintiff no.1 being represented through counsel.
62. In light of above, it referred to deposition of PW.1 wherein, he admitted that suit properties were mortgaged in favour of Government and contrary to plaintiffs' claim to have continued in possession, admission about records of suit properties standing in name of TMC and about failure to have challenged auction. Referring to deposition of PW.1 about his tenure as President and Councilor of TMC, later as MLC, Member of Parliament and Central Minister, who stated that he became aware about due of Rs.7,000/- in year 1965, as
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NC: 2025:KHC:40109 RSA No. 1164 of 2012 HC-KAR admission about knowledge of auction and failure to challenge same.
63. It noted deposition of plaintiff no.2 as PW.3 that on interference with possession in 1987, writ petition was filed and on suggestion therein filing of suit was contrary to Ex.D20. Thereafter, it noted PW.3 stated that when he was President in Congress Party, plaintiff no.1 was MLC and since he was due some amount to Excise Department, suit properties were auctioned for recovery and about addressing of correspondence, when he was President of TMC, for refund of bid amount. It disbelieved his deposition on ground that despite being President/Councilor of TMC at relevant period, he denied knowledge of auction.
64. Referring to deposition of PWs.4 and 5, wherein PW.4 stated plaintiff had purchased coconut plants from him and planted them in suit properties, when suit did not involve any issue about existence of coconut trees in suit properties and PW.5 denying knowledge of auction, as being contrary to admission by PWs.1 and 2, and indicated collusion with plaintiff.
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NC: 2025:KHC:40109 RSA No. 1164 of 2012 HC-KAR
65. It also referred to deposition of Chief Officer of TMC that suit properties were purchased by TMC in auction and about confirmation of sale by order dated 03.07.1961, had withstood cross-examination. Based on above material, it concluded that at time of auction, plaintiff no.1 was Councilor of TMC and as such, possibility of plaintiff himself influencing TMC to purchase suit properties could not be ruled out. It observed plaintiff no.1 having held influential positions had managed to drag on matter before various authorities without challenging auction, that plaintiffs were not sure about their case and filed suit for bare injunction after failing in their attempts before various revenue authorities and High Court.
66. It noted that entries in RoR stood in name of TMC establishing possession of TMC, whereas plaintiffs had not produced any material to establish their possession.
67. First appellate Court further observed that Ex.P45 contained clear admission about making offer to pay excise dues and for return of suit properties, which was rejected by DC, and who got name of TMC entered in RoRs. Thereafter,
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NC: 2025:KHC:40109 RSA No. 1164 of 2012 HC-KAR President of TMC had addressed Ex.P36 letter seeking for refund of bid amount.
68. Based on above observations, first appellate Court concluded that plaintiffs had admitted hypothecation of suit properties, default committed in payment, suit properties being auctioned for recovery thereof, holding of auction and confirmation of sale, approaching revenue authorities and failed against entry of name of TMC in RoRs. It noted that challenge of auction by plaintiffs' neighbor had failed and proceeded to hold that plaintiffs failed to establish their possession over suit properties, held points no.1 and 2 in negative and dismissed Appeal. Thus, finding of both Courts is by referring to material on record and by assigning reasons.
69. Since it is also contended by plaintiffs that their claim for permanent injunction was substantiated by documentary evidence especially Exs.P.36, P.45 and Ex.D2 letters written by TMC to Deputy Commissioner seeking delivery of possession and mentioning about plaintiff no.1 having got names of his children entered in revenue records and hence dismissal of plaintiffs' suit would be perverse. To
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NC: 2025:KHC:40109 RSA No. 1164 of 2012 HC-KAR appreciate said contention, brief reference to documentary evidence which is as follows, is felt necessary:
Ex.P1 - Sale deed dated 12.12.1946 showing purchase by Smt.Gowramma;
Ex.P2 - Deed of transfer dated 25.09.1958 by her in favour of plaintiff no.1;
Ex.P3 - Deed of mortgage by plaintiff no.1 dated 18.12.1958;
Exs.P4 to P30 - Revenue records, tax paid receipts, patta book, RTCs and mutation extracts showing suit properties standing in name of plaintiff no.1;
Ex.P31 - RoR of Sy.no.595/2 for years 1979-80 to 1986-87 showing name of TMC entered in Column no.9 as well as Column no.12(2) for years 1979-80 to 1982-83;
Ex.P32 - RoR of Sy.no.596 for years 1979-80 to 1986-87 showing name of TMC entered in Column no.9 as well as Column no.12(2) for years 1986-87; Ex.P33 - ME no.64/1986-87 for deleting name of plaintiffs and to enter name of TMC in respect of Sy.nos.595/2 and 596;
Ex.P34 - MR no.41/1983-84 for transferring entry from MV Chandrashekar to his brother MV Subramanyam, in view of clearance of excise dues of Rs.4,400/- on 21.11.1983;
Ex.P35 - MR no.76/1977-78 for removal of name of MV Chandrashekar and MV Venkatappa in respect of Sy.nos.595/2 and 596 and to enter name of TMC as per order of DC dated 21.09.1977;
Ex.P36 - Letter by President of TMC to DC dated 13.11.1963 for refund of sale amount paid by TMC;
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NC: 2025:KHC:40109 RSA No. 1164 of 2012 HC-KAR Said letter specifically mentions that suit properties were auctioned on 29.11.1960 for realization of excise arrears from plaintiff no.1, Executive Officer of TMC bidding under instructions of Special Officer and purchasing them, confirmation of sale by DC on 07.03.1961, issuance of direction to handover properties to TMC, handing over of possession to TMC on 03.08.1961; as well as non-transfer of name of TMC in revenue records;
Ex.P37 - Order passed by DC on 09.08.1965 after remand by Divisional Commissioner reiterating confirmation of auction sale in favour of TMC, stating that in auction conducted on 29.11.1960, no bids were received except by TMC for Rs.3,135/- and said amount being credited into Taluka Treasury on 01.12.1960 and confirmation of sale once again on 09.08.1965 and directing for delivery of possession to TMC;
Ex.P38 - Order dated 21.11.1979 passed in W.P.no.9439/1978;
Ex.P39 - Endorsement by Tahsildar dated 09.02.1995; Ex.P40 - Resolution of TMC;
Ex.P41 - Endorsement by DC of Excise on application for issuance of clearance certificate that all dues of Excise department were received on 28.03.1983; Ex.P42 - No-Due Endorsement issued by Excise Inspector dated 04.05.1984 to plaintiff no.1;
Ex.P43 - Resolution by TMC dated 19.05.1986 to prefer Revenue appeal;
Ex.P44 - Letter by TMC to Secretary, Housing and Urban Development Department;
Ex.P45 - Letter by President of TMC to DC dated 27.10.1986 requesting for transfer of khata in respect of suit properties in favour of TMC; Ex.P46 - Proceedings by Special DC in Revision;
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NC: 2025:KHC:40109 RSA No. 1164 of 2012 HC-KAR Ex.P47 - Order passed by Special DC on 20.01.1977 allowing Revision on ground that attempt by plaintiff no.1 to get back his property by getting entries in RoRs changed to his name illegally without notice to TMC after loosing right in suit properties in auction sale;
Ex.P48 - Appeal Memo;
Ex.P49 - Objections filed by plaintiff no.1;
Ex.P50 - Direction to DC for change of khata of suit
properties in name of TMC;
Ex.P51 - Direction by DC to Tahsildar;
Ex.P52 - Endorsement by Tahsildar dated 22.11.1997;
Ex.P53 - Endorsement by TMC;
70. Likewise documentary evidence of defendants is:
Ex.D1 - Resolution dated 28.11.1960 passed under Section 206(2)(b) of Mysore Town Municipalities Act, 1951 to purchase Sy.nos.595/2 and 596 of Malavalli village in Revenue auction on 29.11.1960;
Ex.D2 - Property Register Extract showing Executive Officer taking possession on 03.08.1961;
Ex.D3 - Resolution of TMC; Ex.D4 - Letter dated 04.02.1987 by Tahsildar to TMC
referring to order passed by Spl.DC in Revision for entering name of TMC in revenue records and authorizing taking of police help for fencing suit properties;
Ex.D5 - ME no.64/1986-87 passed in pursuance of order of Spl.DC;
Ex.D6 - RoR of Sy.no.595/2 for year 1986-87 showing mutation of name of TMC;
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NC: 2025:KHC:40109 RSA No. 1164 of 2012 HC-KAR Ex.D7 - RoR of Sy.no.596 for year 1986-87 showing mutation of name of TMC;
Exs.D8, D10 & D12 - RoR of Sy.no.595/2 for years 1987-88 to 1993-94, 1994-95 to 1997-98 and 1994-95 to 1999-2000 respectively;
Exs.D9, D11 & D13 - RoR of Sy.no.596 for years 1987-88 to 1993-94, 1994-95 to 1997-98 and 1994-95 to 1999-2000 respectively;
Ex.D14 - Order dated 21.07.1979 in WP no.9439/1978 with plaintiff no.1 as respondent no.3;
Ex.D15 Order dated 21.01.1987 dismissing WP no.921/1987 filed by plaintiff no.2 as withdrawn;
Ex.D16 - Order dated 20.01.1987 passed by Spl.DC;
Ex.D17 - Resolution of TMC dated 08.09.1986 referring to various steps taken by TMC to protect its interests in suit properties and on that count opposing notice issued by Government of Karnataka for suspension of council of TMC and appointment of Administrator for a period of Six months;
Ex.D18 - Letter by TMC to Tahsildar referring to its purchase of suit properties in auction its confirmation by DC and requesting for fixing boundaries of suit properties;
Ex.D19 - Letter dated 17.02.1987 to TMC;
Ex.D20 - Order dated 06.02.1987 dismissing WP no.1610/1987 filed by plaintiffs no.1 and 2 as withdrawn with liberty to avail other remedy;
Ex.D21 - Order dated 03.08.2001 passed by DC dismissing revision filed by plaintiffs no.1 to 3 against entry of name of TMC in RoRs;
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NC: 2025:KHC:40109 RSA No. 1164 of 2012 HC-KAR
71. Exs.P1 and P2 are documents of title in respect of suit properties and Ex.P3 is deed of mortgage executed by plaintiff no.1, about which there is no dispute. Exs.P4 to P19 are assessment records of suit properties for years 1957-58 to 1965-66 though these documents bear name of plaintiffs even for period after auction, Ex.P37 would indicate that confirmation of auction sale on 07.03.1961 by DC was challenged before Divisional Commissioner in Appeal, which was allowed on 29.11.1961 by remanding matter back to DC and who passed fresh order on 09.08.1965 confirming sale. In view of above, plaintiffs would not be entitled to rely on entries in RoRs until year 1965-66. Likewise, in case of Exs.P29 and P30 which are mutation entry extracts from 1940-41 till 1963-
64.
72. Further, Exs.P20 to P24 are tax paid receipts for years 1987-88 to 1992-93 which cannot be relied upon either as documents of title or to establish possession. Even Exs.P25 and P26 which are patta books and Exs.P27 and P28 which are extracts of index of land in respect of suit properties would fail for very same reason.
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NC: 2025:KHC:40109 RSA No. 1164 of 2012 HC-KAR
73. Exs.P31 and P32 are RoRs for years 1979-80 to 1986-87 would indicate name of TMC being entered in Column no.9 as well as 12(2) would run counter to case of plaintiffs so also Exs.P33 and P35 are mutation entries for deleting name of plaintiffs and to enter name of TMC in RoRs of suit properties. Insofar as Ex.P36-letter dated 13.11.1963 addressed by President of TMC to DC, both Courts observed that same was during period when plaintiff no.1 was holding position of influence over TMC as admitted by PWs.3 to 5.
74. Contention that Ex.P37 is unreliable as Deputy Commissioner had not initiated any proceedings for eviction of plaintiff and Ex.P38 indicating that WP no.9438/1978 was filed for direction to demarcate boundaries of suit properties and evict plaintiff no.1 would indicate that TMC was not in possession, would not hold as challenge against order of confirmation of sale was pending. For aforesaid reason, plaintiffs would not be entitled to rely on admission by DW.1 that Exs.P4 to P30 stood in name of plaintiff no.1.
75. Though plaintiffs contend that dues of Excise department were cleared by relying on Exs.P41 and P42, such
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NC: 2025:KHC:40109 RSA No. 1164 of 2012 HC-KAR contention was not urged either in writ petitions filed or in appeals. Ex.P34 though indicated mutation of name of plaintiff no.2 from plaintiff no.1, based on clearance of Excise dues of Rs.4,400/-, Ex.P43 would indicate that TMC resolved to prefer revenue appeal against said entry. Ex.P45 - letter by President of TMC to DC would be in said context leading to Ex.P46 proceedings and Exs.P.47/D.16 order passed by Spl.DC and consequential directions by DC at Exs.P50 and P51 and endorsement at Ex.P52 resulting in restoration of name of TMC in RoRs. Admittedly, plaintiffs' challenge of Exs.P47/D16 order in WP no.1610/1987 ended in its dismissal with liberty to resort to other remedies. Therefore, documentary evidence sought to be relied upon by plaintiffs would not substantiate their claims.
76. On other hand, Ex.D1-Resolution dated 28.11.1960 authorizing TMC to bid would discharge plaintiffs contention that participation by TMC in auction was not authorized. Exs.D5 to D13 would indicate entry of name of TMC in RoRs, Exs.D14 to D16 about Revision filed by TMC against entry of name of plaintiff no.2 in respect of suit properties, being allowed as per Ex.D16 and plaintiffs challenge thereagainst failing in Ex.D20- order. Thus, documentary evidence would not lend much to
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NC: 2025:KHC:40109 RSA No. 1164 of 2012 HC-KAR plaintiffs' contention about findings of both Courts being perverse and contrary to record.
77. Merely on ground that plaintiffs were seeking relief of permanent injunction on ground that claim of defendants that suit properties were purchased in public auction was not lawful, defendants would not be required to establish their title over suit properties. On other hand, when defendants claim title/possession over suit properties, under what circumstances, there would be need for plaintiffs to establish title as well as possession is clarified by Hon'ble Supreme Court in case of Anathula Sudhakar v. P. Buchi Reddy, reported in (2008) 4 SCC 594 as follows:
"21. 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
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NC: 2025:KHC:40109 RSA No. 1164 of 2012 HC-KAR 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 [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.
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NC: 2025:KHC:40109 RSA No. 1164 of 2012 HC-KAR 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."
78. Perusal of plaint reveals that plaintiffs admitted about hypothecation of suit properties under Hypothecation Deed dated 18.12.1958, but, feign ignorance about proceedings for recovery of dues against plaintiff no.1, auction held on 29.11.1960, successful bidding by TMC and confirmation of sale by DC. There is specific assertion that entire sale proceedings were invalid, inoperative and void in law on account of non-conformity with provisions of Code. Reference to appeal against confirmation of sale, order passed on remand and contention about TMC not being put in possession, would impute plaintiffs knowledge about auction proceedings. Even reference to various litigation wherein there is unequivocal reference to auction and purchase by TMC would indicate that defendants claim over suit properties depended on purchase in auction and being put in possession along with entries in RoRs in pursuance of same. During trial, defendants elicited from PW.1 that he had not challenged auction
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NC: 2025:KHC:40109 RSA No. 1164 of 2012 HC-KAR proceedings and PW.1 also admitted that entries in RoRs stood in name of TMC.
79. Plaintiffs further assert in plaint that from date of auction till 1979, no action was taken for entering name of TMC and for delivery of possession by referring to writ petition filed by one Puttamadaiah seeking for direction to DC to take action in pursuance of confirmation of sale. It is further asserted that in year 1985, political rivalry with local MLA caused said MLA to persuade government to issue directions for mutation. Thereafter, allegations are made against order dated 20.01.1987 passed by Spl.DC leading to entry of name of TMC in RoRs. It is stated based on said entry, when TMC sought to interfere with plaintiffs' possession, suit was filed.
80. While there cannot be any quarrel about position in law that a prayer for declaration of title would not be necessary in every suit for injunction and merely on ground of denial of plaintiff's title, from ruling in Anathula Sudhakar's case (supra), trial Court would be justified in giving finding on title also while arriving at it's finding on claim for permanent injunction, if evidence was available for same. In case, plaintiffs
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NC: 2025:KHC:40109 RSA No. 1164 of 2012 HC-KAR are unable to establish their lawful possession over suit properties based on specific evidence, then possession would follow title. In instant case, while there is no dispute about title of plaintiff no.1 over suit properties and about their mortgage against Excise dues, controversy between parties is whether such divesting of title was in accordance with law and whether plaintiffs, who claims to have continued in possession could be held to be in lawful possession of suit properties and as such entitled for permanent injunction.
81. While passing impugned judgment and decree, both Courts have concurrently held that defendant had not only claimed title over suit properties as auction purchaser in pleading, but also led evidence to substantiate its title in pursuance of auction sale. In fact copies of orders passed in revenue proceedings and writ petitions, contain clear reference to auction purchase by TMC, confirmation of sale and entry of its name in RoRs, challenge by plaintiffs and rejection of challenge. Further, both Courts noted that PW.1 admitted hypothecation of suit properties, auction sale and failure of plaintiffs to challenge auction proceedings.
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NC: 2025:KHC:40109 RSA No. 1164 of 2012 HC-KAR
82. Having given up prayer for declaration, plaintiffs have resorted to contend that possession continued with them, by relying on failure by DC to take steps for confirmation of sale, entry of name of auction purchaser and delivery of possession mandated by Section 187 of Code, and failure by TMC to take possession of suit properties by evicting plaintiffs. Even in such a scenario, there is tacit admission of loss of title and plaintiffs would require to establish their lawful possession or against illegal dispossession to persist with their claim for grant of relief of permanent injunction.
83. Insofar as contention about plaintiffs possession established by Exs.P44 and P45 - correspondences dated 09.09.1986 and 27.10.1986 of TMC stating that plaintiff no.1 was illegally enjoying property of TMC. It is seen, Ex.P44 is a reply by TMC to Secretary of Government on being issued with show-cause notice against appointment of Administrator for failure to safeguard interest of TMC in suit properties, wherein, TMC narrated steps taken by it for protecting it's interest in suit properties. Secondly, in Ex.P45 - letter, TMC had requested DC for entry of its name in RoRs and for delivery of possession. Though, it would indicate that name of TMC was not entered in
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NC: 2025:KHC:40109 RSA No. 1164 of 2012 HC-KAR revenue records and TMC was not in possession, same was apparently due to act of plaintiff no.1 in illegally getting name of plaintiff no.2 entered in revenue records under MR no.41/1983-84 dated 16.02.1984. As noted above, Ex.P46 would disclose that TMC had filed Revision against said entry leading to passing of Ex.P47 - order allowing Revision, setting aside MR no.41/1983-84 with direction for restoration of name of TMC and prosecution of Revenue Officials, who had colluded in making that entry. As noted above, both Courts have duly adverted to said facts in proper context while arriving at their conclusions. Thirdly, both Courts concurrently held plaintiffs had failed to establish their possession over suit properties.
84. Nextly, even admission by DW.1 - Official of TMC that Ex.D2 was not drawn based on any record or document, same would not ipso facto imply plaintiffs being in possession of suit properties.
85. Admittedly, description of suit properties as vacant land and as held in Anathula Sudhakar's case (supra), possession would follow title. And in absence of specific and
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NC: 2025:KHC:40109 RSA No. 1164 of 2012 HC-KAR conclusive material to substantiate their claim based only on weakness of defendants, plaintiffs cannot succeed.
86. Reliance on decisions in Kishen Lal, Shiralakoppa Town Municipality and Shiva Martand Tapkire (supra) would be misconceived when plaintiffs admit mortgage of suit properties under Ex.P3 - Deed and there is sufficient reference to order of confirmation of sale by Deputy Commissioner, especially in Exs.P36 and P37 and Exs.P31 and P32 - RoRs of suit properties from 1979-80 to 1986-87 produced by plaintiffs showing name of TMC in Column no.9 as well as in 12(2). For subsequent period entries in revenue records were based on Ex.P34, which was set-aside by Spl.DC in Exs.P47/D16 - order. Apart from above, there is specific admission by PW.1 that plaintiffs had not challenged auction or confirmation of sale before any Court. Even contention based on auction purchase non-confirming to Section 38 of Municipalities Act would not hold water as under Amending Act no.1 of 1956 sub-sections (3) to (7) of Section 38 were omitted from statute. Thus, substantial question of law is answered in affirmative.
Consequently, appeal is dismissed.
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NC: 2025:KHC:40109 RSA No. 1164 of 2012 HC-KAR After pronouncement of judgment, learned counsel for appellant seeks for staying of impugned order since appellant intends to approach Hon'ble Supreme Court.
On consideration, I do not find any justification to grant interim order as prayed.
Sd/-
(RAVI V HOSMANI) JUDGE PSG,AV,GRD List No.: 1 Sl No.: 49