Karnataka High Court
G. Venkataramaiah S/O Late Gopalappa ... vs C. Kempaiah (Since Dead By L.Rs. ... on 5 June, 2006
Equivalent citations: AIR2007KANT34, ILR2006KAR3122, 2006(6)KARLJ706
Author: K.L. Manjunath
Bench: K.L. Manjunath
JUDGMENT K.L. Manjunath, J.
1. This is the defendants appeals Respondents were the plaintiffs in O.S.718/1987. Plaintiffs filed a suit for permanent injunction to restrain the defendants from putting up any construction on the plaint schedule property or from interfering in any manner either by themselves or through their agents with, the peaceful possession and enjoyment of the plaint schedule property. Suit property is a vacant site bearing K.No. 30 of Hebbal-Kempapura village measuring east-west 15 ft. and north-south 80 ft. bounded east by the house of the plaintiff bearing K.No. 11, west by the house of the defendants and vacant land, north by defendants 1/3rd share and south by road. According to the plaintiffs, they are the full and absolute owners of the suit property. Plaintiffs grand-father one Avalappa and Munivenkatappa were brothers and they have divided their joint family properties under an oral partition. The vacant land which was to the west of K.No. 11 measuring 15' x ,120' was divided into three equal portions, northern 1/3rd portion was alloted to Chikka Venkatappa, grand-father of defendants, middle portion was alloted to the share of Munivenkatappa and southern portion was alloted to the plaintiffs' grand-father Avalappa. Each of them were enjoying their properties separately. Muni Venkatappa's son by name Appanna sold the middle portion in favour of the plaintiffs under registered sale deed dated 23.8.1967 and that the plaintiffs have been paying the kandayam and enjoying the property. Three days prior to the institution of the suit, defendants made an attempt to commit trespass on the plaint schedule property and made an attempt to lay the foundation. Therefore, plaintiffs filed the suit for bare injunction.
2. Defendants contested the suit. Defendants admitted the relationship between the parties. They also admitted that the joint family properties were divided under oral partition and each of them were enjoying separately. Defendants denied the execution of the sale deed by Appanna in favour of the plaintiff under registered sale deed dated 23.8.1967. They also denied the possession of the plaintiffs. Recording to defendants, after the death of their father Gopalappa, they are in lawful possession of the suit property. According to them, upto the death of their father, their father Gopalappa was in peaceful possession and enjoyment of the suit schedule property. According to them, Gopaiappa had purchased the suit property from Muni Venkatappa and his son Madaiah on 18.9.1931 . for a valuable sale consideration of Rs. 50/- only and that defendants and their predecessors are in enjoyment of the suit schedule property even on the date of suit. According to them, Munivenkatappa had two sons by name Appanna and Madaiah. Share of Munivenkatappa and Madaiah were gold to the father of the defendants Gopalappa, remaining share of Appanna was sold to Sanjeevappa son of Muniswamappa under registered sale deed dated 24.6.1946. Therefore, they contend that plaintiffs could not get any title to the suit schedule property since Appanna did not had any title on 23.8.1967 to convey the same. Therefore, they requested the court to dismiss the suit.
3. Based on the above pleadings, following issues were framed by the trial court:
1. Whether the plaintiff proves that he was in lawful possession of the suit property on the date of the suit?
2. Whether the plaintiff proves the obstruction by the defendant as alleged?
3. Whether the plaintiff is entitled to the permanent injunction sought for?
4. What decree or order?
4. 1st plaintiff was examined as PW-1. One Narayana Swamy was examined as PW-2. Plaintiffs relied upon Exs.P-1 to 6. On behalf of the defendants, 2nd defendant was examined as DW-1. 1st defendant was examined as DW-2. Two witnesses were examined as DW-3 & 4. Defendants relied upon Exs.D-1 to 7. A commissioner was appointed by the court for local inspection. Commissioner has submitted his report stating that defendant has constructed a building by encroaching the suit schedule property to an extent of 2 & half feet x 21 ft. Trial court, considering the entire evidence let in by the parties, issue No. 1 as Yes, excluding the constructed portion, issue No. 2 yes, issue No. 3 yes, in respect of the area which is not encroached and ultimately suit filed by the plaintiff was decreed on 22.10.2002 restraining the defendant from interfering with the suit property measuring 15' x 80' minus the constructed area which has been in possession and occupation of the tenant. Defendant was also directed to restore the encroached portion and not to cause interference in respect of the suit portion also. This judgment and decree is called in question in this appeal.
5. Though several grounds are urged by the appellants in their appeal memo and similarly several grounds were also canvassed by the learned Counsel for the appellants, at the time of arguments, he ultimately requests this Court to consider the correctness and legality of the judgment of the trial court in decreeing the suit of the plaintiffs even though the plaintiffs are not in possession of the suit property and he further contends that in a suit for bare injunction trial court should not have directed the defendant to handover the building portion in occupation of the defendant. According to the learned Counsel for the appellants, it is the case of the plaintiffs that they are in possession of the suit schedule property and enjoying the suit schedule property which is a vacant piece of land. According to the defendants, plaintiffs are not in possession of the property at no point of time and that plaintiffs vendor could not have conveyed the same in favour of the plaintiffs' father. According to them, they are in possession of the property. Commissioner's report clearly indicates that in a portion of the suit schedule property defendants have constructed a building. According to the learned Counsel for the appellants, plaintiffs have not amended the plaint and sought for relief of possession in respect of the encroached area. According to him, plaintiffs never let in any evidence to show that such construction was made by the defendants subsequent to the institution of the suit. Therefore, he contends that judgment and decree of the trial court are required to be set aside only on this short ground. According to him, rest of the grounds urged by him in the appeal memo need not be considered at this point of time.
6. Learned Counsel for the respondents-plaintiffs though made an attempt to support the judgment and decree of the trial court, she fairly admits that either in the plaint or in the evidence of the plaintiffs, they have not contended that defendants have constructed building after the institution of the suit and she fairly admits that plaintiffs had not sought the relief of delivery of possession in respect of the building in occupation of the defendants. Therefore, in the circumstances, short question to be considered by this Court in this appeal is whether in a suit for bare injunction even if the plaintiffs are not in possession of full extent of the property, whether trial court can grant an injunction and whether trial court is justified in directing the defendant to handover the alleged encroached portion to the plaintiffs without there being a prayer by the plaintiffs and without paying the court fee by the plaintiffs.
7. Though the parties have admitted their relationship, defendants have specifically denied the rights of the plaintiffs over the suit schedule property. Plaintiffs by relying upon the sale deed executed by Appanna son of Muni Venkatappa contends that they are in possession of the suit property. According to the defendants, Appanna had no right to execute a sale deed in favour of the plaintiffs since Appanna was not the owner of the property. According to the defendants, property owned by Appanna was sold long back. Defendants have relied upon the sale deed executed by Appanna. Even though the plaintiffs have filed the suit for bare injunction, incidentally it was for the trial court to gone into the title of the plaintiffs to come to the conclusion that plaintiffs have acquired valid title to the suit property. In all fairness, considering the defence of the defendants, plaintiffs should have converted their suit one from injunction to the suit for declaration of title. Be that as it may, even if this Court concedes that the suit of the plaintiffs was maintainable, it is not in dispute that in a portion of the suit property defendants have constructed building on an area of 2 and half ft. x 21 ft. This fact is proved by the report of the commissioner. It is not the case of the plaintiffs that the said portion was encroached by the defendants, after the institution of the suit. Even if the defendants though encroached the said area of 2 and half ft. x 21', it was for the plaintiffs to seek the relief of possession. Without there being the relief, prayer for delivery of possession of encroached area, trial court suo moto on its own without there being pleadings, evidence and issues, as granted such a relief. Therefore, only on this short ground, judgment and decree of the trial court are required to be set aside.
8. Appellants herein have also filed an application seeking permission to amend the written statement. Respondents-plaintiffs have also filed their objections. This application has to be considered by this Court on merits. But in view of the fact that the judgment and decree of the trial are required to be set aside by this Court and the matter is required to be re-considered by. the trial courts on merits and in accordance with law, this Court is of the opinion that there is no necessity to consider the application filed by the appellants for amendment of the written statement as it 13 open for the appellants to file the same application before the trial court.
9. In the result, this appeal is allowed. Judgment and decree passed by the XI Addl. City Civil Judge, Bangalore in O.S. 718/1987 dated 22.10.2002 are hereby set aside. Matter is remitted back to the trial court for fresh consideration in accordance with law. It is open for the parties to amend their pleadings and they are also entitled to lead further evidence. It is made very clear that the parties are directed to maintain statusquo till the disposal of the suit by the trial court.