IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JUNE, 2017 BEFORE THE HON’BLE MR. JUSTICE L. NARAYANA SWAMY REGULAR SECOND APPEAL NO.1781 OF 2014 (P-INJ) BETWEEN:
SRI JAYARAJ S/O CHAMUNDI, AGED ABOUT 58 YEARS, SRIRAMA NAGAR, OORGAUMPET, K G F - 563 121, KOLAR DISTRICT. ... APPELLANT (BY SRI.M A GEORGE, ADV.) AND:
SRI KANNABHIRAN S/O LATE MUTHU, AGED ABOUT 37 YEARS, RESIDING AT NO.66, PALAGHAT LANE, COROMANDEL POST, K.G. F. - 563 118, KOLAR DISTRICT. ... RESPONDENT (BY SRI.KIRAN N MURTHY & SRI.G.NAVEEN BABU, ADVS.) THIS RSA IS FILED U/S.100 OF CPC., AGAINST THE JUDGEMENT & DECREE DTD:22.8.2014 PASSED IN R.A.NO.103/2013 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE, KGF, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD 23.9.2013 PASSED IN OS.NO.158/2006 ON THE FILE OF THE I ADDL. CIVIL JUDGE, KGF.
THIS APPEAL COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY AFTER HAVING HEARD AND RESERVED FOR JUDGMENT ON 13.12.2016, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed by the defendant in O S No.158/2006 on the file of Additional Civil Judge (Junior Division),K.G.F. The trial court by the judgment and decree dated 12.11.2010 dismissed the suit of the respondent for the relief of permanent injunction. Being aggrieved, the respondent preferred R A No.103/2013 on the file of Principal Senior Civil Judge, at K.G.F. The lower appellate court by the judgment and decree dated 22.8.2014 was pleased to allow the appeal and decreed the suit. Being aggrieved, the appellant – defendant has filed the present regular second appeal.
2. The facts of the case to be stated in brief are that plaintiff claims that he is in possession and enjoyment of house property bearing No.66 situated at Palaghat Lane, Coramandal Post, KGF. Originally the schedule property was allotted by the BGML authorities to one Muthu, the father of plaintiff. After his death, the plaintiff has been residing in the schedule property along with his family members. The defendant has no any right, title over the suit schedule property. On 21.10.2006 the defendant and his henchmen came near the suit schedule property and attempted to dispossess the plaintiff from the same. Hence he filed the suit.
3. The defendant appeared and contested the suit. He has denied the entire plaint averments. After retirement of Muthu the house was transferred to the name of Thangaraj Naidu and in the year 1998 when Thangaraj Naidu had paralytic attack and decided to go to his native place in Tamil Nadu, the defendant approached the BGML authority and got the house allotted to his name. Since 1998 the house is standing in the name of defendant and he is living with his wife. The plaintiff requested the defendant, at his expense extended the structure with another exclusive portion including living room, Kitchen, water tank etc., the plaintiff is in permissive possession of the said portion but later the plaintiff refused to vacate.
4. The trial court on the basis of the averments made above, framed the necessary issues as to possession, interference and entitlement of the plaintiff for the relief. On the plaintiff’s side three witnesses were examined as PW-1 to PW-3 and documents Ex.P1 to P8 were marked. On behalf of the defendant, defendant was examined as DW-1 and documents Ex.D1 to D7 were marked. The trial court, no doubt, held that the plaintiff is in possession of the suit schedule property, but refused to grant the relief on the ground that he has no title over the suit schedule property. Thus dismissed the suit. The lower appellate court came to the conclusion that in a suit for permanent injunction what is required to be proved is the possession, which the plaintiff has able to prove and therefore set aside the judgment and decree of the trial court and decreed the suit. Being aggrieved, by the said judgment and decree, the defendant is in this appeal.
5. This court while admitting the appeal has framed the following substantial questions of law:
(1) Whether the courts below have committed an error in coming to the conclusion that the suit schedule property continues to be a public premises and therefore the proceedings as contemplated under the Act, 1974 is to be initiated?
(2) Whether the courts below have committed an error in the manner of appreciation of the evidence before the court below with regard to the contention that the suit schedule property had been sold to the plaintiff in O S No.178/11?
6. I have heard the learned counsel for the parties and perused the impugned judgments. My answers to the above substantial questions of law are as follows for the following reasons.
7. The evidence of PW-1 to PW3 supported by the documentary evidence Ex.P1 to P8 clearly prove the possession of the suit schedule property by the plaintiff. The courts below have correctly come to the conclusion that the plaintiff has proved his possession in respect of the suit schedule property as on the date of the suit. The trial court has refused to grant permanent injunction on the ground that the plaintiff has no title over the suit schedule property. The defendant filed the suit O S No.178/2011 for the relief of delivery of possession as against the plaintiff, which itself proves that the plaintiff is in possession and enjoyment of the suit schedule property. In a suit for permanent injunction what is required first is the possession in respect of the suit schedule property. The defendant though he claims that he is the lawful owner having allotted the suit schedule property was not able to produce any documents relating to transfer of rights in his favour. It is clear from the records that the property belongs to B G M L. Though the property is allotted to the defendant, the property is yet to be legally transferred in favour of the defendant and only after transfer of right in favour of the defendant, he would become the absolute owner. When things stand thus, the plaintiff is not seeking relief of permanent injunction against a true owner. The plaintiff cannot also be said to be a trespasser or his possession is illegal, because, the defendant himself has filed the suit for delivery of possession on the ground that the plaintiff is in permissive possession. Therefore, permanent injunction granted by the lower appellate court in favour of the plaintiff and against the defendant is perfectly justified.
8. The courts below took into consideration that the premises is a public premises, injunction prayed for is as against an individual and not as against the true owner. Therefore, there was no bar in considering the relief for permanent injunction. The suit of the appellant who sought for delivery of possession was dismissed on the ground since it is a public premises, the civil court has no jurisdiction. Accordingly, the first substantial question of law is answered.
9. For the above reasons that the courts below were justified in holding that the plaintiff has been able to prove his possession in respect of the suit schedule property. The lower appellate court has corrected the mistake committed by the trial court in refusing to grant relief of permanent injunction on the ground that plaintiff had no title in respect of the suit schedule property. The lower appellate court has correctly appreciated the materials on record and has come to correct conclusions. Accordingly, the second substantial question of law raised for consideration is answered.
Accordingly, the present regular second appeal fails and it is accordingly dismissed. Parties are directed to bear their own costs.
akd Sd/- JUDGE