IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K. NATARAJAN REGULAR SECOND APPEAL NO.1629 OF 2011 (INJ) BETWEEN:
1. ALEX D’ COSTA, S/O.JOHN D COSTA, CHRISTIAN, AGE:38 YEARS, 2. MOHAMMED DASTHAGEER, S/O.JALEEL SAB, MUSLIM, AGE: 55 YEARS, SINCE DEAD BY HIS LRS 2(a) SMT.NISARATH, W/O LATE MOHAMMED DASTHAGEER, AGE: 45 YEARS.
2(b) MOHAMMED SUHIL JALIL, S/O LATE MOHAMMED DASTHAGEER, AGE: 22 YEARS.
2(c) MOHAMMED SAMEER SHAMSHEER, S/O LATE MOHAMMED DASTHAGEER, AGE: 20 YEARS.
2(d) FOUZIA, D/O LATE MOHAMMED DASTHAGEER, AGE: 23 YEARS, ALL ARE RESIDENTS OF YEDEHALLI VILLAGE, ANANDAPURAM HOBLI, SAGAR TALUK, SHIMOGA DISTRICT-573104.
(CAUSE TITLE AMENDED AS PER COURT ORDER DATED: 04.01.2019) ...APPELLANTS (BY SRI MAHESH R UPPIN, ADVOCATE) AND:
JOSEPH D’COSTA, S/O.SIRILL D’COSTA, CHRISTIAN, AGED ABOUT 43 YEARS, R/O.YEDEHALLI VILLAGE, ANANDAPURAM HOBLI, SAGAR TALUK, SHIMOGA DISTRICT – 573 104. …RESPONDENT (BY SMT NAGARATHNA S K & SRI N VIJAY ARADHYA, ADVOCATES) * * * THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 22.02.2011 PASSED IN R.A.NO.110/2003 ON THE FILE OF THE ADDL. CIVIL JUDGE (SR.DN) AND JMFC., SAGAR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED: 20.08.2003 PASSED IN O.S.NO.212/2000 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN) SAGAR.
THIS REGULAR SECOND APPEAL IS COMING ON FOR FURTHER HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is filed by the appellant – defendant being aggrieved by the judgment and decree passed by the Prl. Civil Judge (Jr.Dn.,) Sagara (hereinafter referred as ‘trial Court’) in O.S.No.212/2000 and the same was upheld by the Additional Civil Judge (Sr.Dn.) and JMFC, Sagara (hereinafter referred as ‘First Appellate Court’) in R.A.No.110/2003.
2. Heard the arguments of learned counsel for the appellants as well as respondent.
3. The rank of the parties before the Trial Court is retained for the sake of convenience.
4. The plaintiff-respondent has filed the suit for permanent injunction restraining the defendants from entering into his possession and enjoyment of the suit schedule property measuring 2 acres 12 guntas said to be granted to him by the Authorities vide saguvali chit in the year 1974. Since, then the plaintiff was enjoying the suit schedule property. Defendant Nos.1 and 3 are also the grantees of the adjacent land by the Government but they are trying to trespass and also trying to remove their fencing. Hence, the said suit is filed.
5. In response to the notice, defendant Nos.1 and 3 appeared before the Court through their advocate and filed the written statement by denying the averments made in the plaint as false and contended that defendant No.1 is in the possession of the property measuring 2 acres 23 guntas and defendant No.3 is in possession of the property measuring 1 acre 28 guntas and contended that the defendants were cultivating the land since the date of the grant and after obtaining the grant order, the plaintiff is trying to interfere with the possession of the defendant’s property without having any right in the property and hence the suit is not maintainable, prayed to dismiss the suit.
6. Based upon the rival pleadings, the trial Court framed the following issues:
“1. Whether the plaintiff proves the lawful possession and enjoyment of the entire suit schedule property bearing S.No.102/B-1 measuring 2 acres 12 guntas in extent, situated at Yedehalli village of Sagar Tuluk?
2.Whether the plaintiff also proves the interference made by the defendants for his possession and enjoyment of the suit property as described in para-5 of the plaint?
3. Whether the defendants 1 & 2 prove that the suit in the present form is not maintainable?
4. Whether the plaintiff entitled for the relief claimed?
5. What Decree or Order?”
7. To substantiate his contention, the plaintiff himself examined as PW.1 and he has also examined two more witnesses as PWs. 2 and 3 and got marked five documents and on behalf of the defendants, defendant No.3 examined but no documents were marked. After considering the evidence on record, the trial Court decreed the suit of the plaintiff and injunction granted against the defendants. Assailing the judgment and decree, the defendant Nos.1 and 3 filed an appeal before the First Appellate Court in R.A.No.110/2003 and the First Appellate Court after considering the arguments, dismissed the appeal filed by the defendants vide judgment dated 22.02.2011. Assailing the judgment, defendant Nos.1 and 3 before this Court by way of Regular Second Appeal.
8. Learned counsel for the appellants has strenuously contended that the trial Court as well as the First Appellate Court committed error and trying the suit only based upon Ex.P2-saguvali chit issued by the Authorities. Ex.P3 is the document which clearly reflects that there is a manipulation in the measurement of the land by showing 1 acre 12 guntas in the name of the plaintiff. Subsequently, it was corrected as 2 acres 12 guntas and the measurement of the land granted to defendant No.1 previously shown as 2 acres 23 guntas and for defendant No.3 shown as 1 acre 28 guntas and subsequently, it was corrected as 2 acres 23 guntas and 1 acre 28 guntas. Thereby, it was reduced to 20 guntas each from defendant Nos.1 and 3 and added to the plaintiff’s measurement as 2 acres 12 guntas. In fact, the defendants are in possession of the land measuring 2 acres 23 guntas and 1 acre 28 guntas. This was confirmed by the cross-examination of PW.2-the father of the plaintiff. He has clearly admitted that the defendants are in possession of the land. Such being the case, merely the grant was made in the name of the plaintiff without seeking possession and declaration, the bare injunction suit is not maintainable. The trial Court and the First Appellate Court has committed error for not accepting the admission made by PW.2, thereby, the substantial question of law arises in this appeal. Hence, prayed for allowing the same.
9. In support of his contention, the learned counsel appellants has relied upon the judgment of Hon’ble Apex Court in the case of Anathula Sudhakar vs. P.Buchi Reddy (Dead) By L.Rs & Ors. reported in 2008 AIR SCW 2692.
10. Per contra, the learned counsel appearing for respondent-plaintiff Smt. S.K.Nagarathna has supported the judgment of both the Courts below and contended that as per the saguvali chit issued by the Government after the enquiry, the land measuring 2 acres 12 guntas in survey No.102 has been granted. Though there was some correction in Ex.P3, but the fact remains that the land has been granted to the plaintiff by the Authorities. The grant certificate has not been challenged by the defendant and even they have not produced their grant certificate before the trial Court. Such being the case, the question of allowing the appeal does not arise. A stray sentence and admission made by PW.2 which cannot be taken on consideration for dismissing the suit as the documentary evidence prevails over the oral evidence and hence, contended that there is no substantial question of law arises in this appeal for admitting and hence prayed for dismissing the same.
11. Upon hearing the arguments of learned counsel for the parties, the substantial questions of law involved in this appeal are:
“1) Whether both the Courts below are right in ignoring the specific admission made by the father of the plaintiff i.e., PW.2 to the effect that the plaintiff’s and defendants’ land is separated by a fence and the trees and the plaintiff is in possession of the land less than what is claimed by him?
2) Whether both the Courts below are right in decreeing the suit, when the plaintiff failed to prove his actual possession and enjoyment of the land to the extent that he has claimed?”
12. As per the first substantial question of law framed by this Court, the case of the plaintiff is that the plaintiff was in possession of the land in survey No.102 measuring 2 acres 12 guntas. The same has been granted by the Authorities and issued the saguvali chit on 11.07.1974 and Ex.P2-saguvali chit also confirmed the same which shows 2 acres 12 guntas has been mutated in the name of plaintiff. Ex.P2-saguvali chit issued by the Authorities also depicts 2 acres 12 guntas but Ex.P3-the survey sketch prepared by the Taluk Surveyor, Sagara which shows the name of the plaintiff measuring 2 acres 12 guntas. Defendant No.1 (Sl.No.2) shown as 2 acres 3 guntas and Sl.No.3, the name of defendant No.3 shown as 1 acre 8 guntas. This document was disputed by the defendants contending that the measurement of the land was corrected from 1 acre 12 guntas to 2 acres 12 guntas by reducing 20 guntas each from the measurement of defendant Nos.1 and 3. Though there is some corrections made in the documents but the plaintiff failed to authenticate the measurement before any of the Taluk surveyor or any other granting Authority to prove that the plaintiff was in actual possession of 2 acres 12 guntas of land prior to filing the application for grant.
13. On the other hand, the cross-examination of PW.2 who is none other than the father of the plaintiff has categorically admitted that the defendants are in possession of the land which were still in their possession and they have also fixed the fencing and the defendants were not ready to remove the fencing, therefore, they filed the suit. The admission made by PW.2 also corroborates the correction made in Ex.P3-survey sketch. It is not in dispute that the Authorities have granted 2 acres 12 guntas of land in favour of plaintiff but as per the admission made by PW.2, plaintiff was in possession of 1 acre 12 guntas of land as on the date of filing the suit but not 2 acres 12 guntas. Though the defendants did not dispute for reducing their measurement from 1 acre 23 guntas to 1 acre 3 guntas and defendant No.3 also did not dispute for reducing their measurement from 1 acre 28 guntas to 1 acre 8 guntas, but, the defendant Nos.1 and 3 have lost 20 guntas each by way of grant made by the Government to the plaintiff. But, infact they are in possession of 20 guntas each as on the date of filing the suit.
14. In this regard, the learned counsel for the appellants-defendants has contended that as per the evidence of PW.2 in the cross-examination and the admission that the defendants are in possession of 20 guntas of land in each. Such being the case, the bare injunction suit is not maintainable. The plaintiff ought to have filed the suit for declaration and to seek possession of the 20 guntas each from defendant Nos.1 and 3. The bare injunction suit is not maintainable. In support of his contention, the learned counsel has relied upon the judgment of the Hon’ble Apex Court in the case of Anathula Sudhakar (supra) wherein at para 11 of the judgment, the Hon’ble Apex Court reads thus:
“11.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 them briefly.
11.1 Where a plaintiff is in lawful or peaceful possession of the 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.
11.2 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 seek the relief of injunction simpliciter, without claiming the relief of possession.
11.3 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.”
15. In view of the above mentioned in point Nos.
11.2 and 11.3, the defendants disputed the possession of the property of the plaintiff. Such being the case, the plaintiff ought to have sought the declaration or at least seek possession of 20 guntas of the land each from defendant Nos.1 and 3 and the suit for bare injunction is not maintainable.
16. In view of the judgment of Hon’ble Apex Court, the evidence of PW.2 and Ex.P3 goes to show that defendant Nos.1 and 3 are in possession of 20 guntas each i.e., 1 acre 23 guntas and 1 acre 28 guntas as on the date of granting the land to the plaintiffs. Even though the plaintiff got the grant of 2 acres 12 guntas but 20 guntas each were in the possession of the defendants.
17. It is well settled position of law that even a person in illegal possession, the remedy available is in accordance with law to recover the possession, but the suit for bare injunction is not maintainable. Therefore, both the Courts below have ignored the specific admission of PW.2 made in the cross-examination and decreed the suit is against the evidence and the documents. Accordingly, answered the point No.1 against the plaintiff/respondent and in favour of the defendant/appellant.
18. With regard to the second substantial question of law that the plaintiff filing a suit for injunction of 2 acres 12 guntas of land as on the date of filing the suit. On the other hand, defendant No.1 was in possession of 2 acres 23 guntas and defendant No.3 was in possession of 2 acres 28 guntas as on the date of filing the suit. Such being the case, the suit for bare injunction is not maintainable as the plaintiff was not in possession of 2 acres 12 guntas but was in possession of 1 acre 12 guntas.
19. The judgment of the Court below only on the order of grant but not in possession. Therefore, the decree passed by the trial Court is not sustainable, in view of the judgment of the Hon’ble Apex Court in the case of Anathula Sudhakar (supra), the judgment of both the Court below are required to be set aside. Accordingly, the second substantial question of law is answered in favour of the appellants as against respondent-plaintiff.
In view of the findings, the appeal filed by the appellant /defendant deserves to be allowed.
Accordingly, the appeal is allowed.
The judgments of both the Courts below are hereby set aside and the suit of the plaintiff is dismissed as bare injunction suit is not maintainable.
In view of disposal of the main appeal, I.A.No.2/2011 does not survive for consideration. I.A.No.2/2011 is disposed of.
Sd/- JUDGE GBB