MANU/KA/2863/2017

IN THE HIGH COURT OF KARNATAKA (DHARWAD BENCH)

Regular Second Appeal No. 100082/2015 (INJ)
Decided On: 16.11.2017
Appellants: Ramesh and Ors.
Vs.
Respondent: Yallap and Ors.
Hon'ble Judges/Coram:
S. Sujatha, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Girija S. Hiremath, Adv.
For Respondents/Defendant: Deepak S. Kulkarni, Adv.
Case Note:
Civil - Directions - Plaintiff aggrieved by direction of first appellate court
that Plaintiff's should institute suit for protection order of injunction filed
present appeal - Whether lower appellate court was justified in holding that
Plaintiff's should file suit for declaration of their title over suit property,
within six months from date of disposal of regular appeal, to take
protection of order of injunction, when both courts below have concurrently
held that Plaintiff's have proved their possession as on date of suit and suit
was filed only for perpetual injunction, whether lower appellate court was
justified in holding that suit for declaration of title was required to be filed,
when suit filed by Plaintiff's was only for bare injunction and title of
Plaintiff's was not disputed by Defendants and there was no issue in that
regard, whether lower appellate court was justified in recording finding
that Plaintiff's have to file suit for declaration of title, in absence of dispute
of title by other side and whether lower appellate court was justified in
making observation with regard to title, in facts and circumstances of case -
Held, it appeared from record that suit properties were not vacant sites but
shops, lower appellate court concurring with finding of trial court relating
to possession dismissing appeal of Defendants ought not to have directed
Plaintiff's to file comprehensive declarative suit - If title to suit property
was necessarily to be established by Plaintiffs, then findings of trial court
ought not to have been confirmed - In such circumstances, appeal filed by
Defendants would have been allowed - There was no necessity for lower
appellate court in making observation with regard to title, when issues
were decided by trial court against Defendants in suit for bare injunction -
It was significant to note that Defendants have not challenged judgment
and decree passed by lower appellate court - Findings recorded by lower
appellate court confirming judgment and decree of trial court had reached
finality on issue of possession of Plaintiff's over suit property - If so, portion
of judgment and decree of lower appellate court so far as directing
Plaintiff's to institute suit for title to take protection order of injunction
within six months requires to be set-aside and accordingly was set-aside -
In all other respects, judgment and decree passed by lower appellate
confirming findings of trial court was upheld - Accordingly, substantial

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questions of law were answered in favour of Plaintiff's and against
Defendants - Appeal dismissed. [11], [12], [13], [14]
Ratio Decidendi:
In suit for bare injunction there was no necessity for court in making
observation with regard to title
JUDGMENT
S. Sujatha, J.
1. This second appeal arises against the judgment and decree passed by the II Addl.
Senior Civil Judge, Belagavi (for short, 'the lower appellate court') in RA No.
231/2013 whereby the judgment and decree passed by the III Addl. Civil Judge &
JMFC, Belgaum (for short, 'the Trial Court') in OS No. 255/2012 is confirmed.
However, it is directed that the plaintiff's shall institute a suit for title within six
months from the date of disposal of the appeal to take protection of the order of
injunction. Being aggrieved by this portion of the judgment and decree of the lower
appellate Court, the plaintiff's are in appeal.
2 . For the sake of the convenience, the parties are referred to, as per their status
before the Trial Court.
3 . The plaintiff's instituted a suit in OS No. 255/2012 against the defendants for
permanent injunction to restrain the defendants from interfering with peaceful
possession and enjoyment of the suit property an open space measuring 31.6" East-
West in width and 48' South-North in length bearing Gram Panchayat No. 16
(Corresponding G.P. No. 1084/1 to 4) situated at Halakeri Galli, Sulebhavi, Tal. &
Dist. Belgaum. The plaint averments are that the plaintiff's are permanent residents of
Sulebhavi, Plot No. 16 situated at Halakeri Gram Panchayat, Sulebhavi was their
ancestral property. It was contended that, originally suit property stood in the name
of Jakkappa and after his death, his sons Kallappa and Tippanna succeeded being the
successors and their names were entered in the Gram Panchayat extract. It was
averred that during the life time of father of the plaintiff's, the partition was effected
between Kallappa and Jakkappa with respect to GP No. 16 and at that time, the suit
property was exclusively fallen to the share of plaintiff's. The plaintiff's are paying
taxes with respect to the suit property and their names are entered in the revenue
records. It was alleged that the defendants are not related to the family of the
plaintiff's. The defendants without having any right, title, interest are putting false
claim over the suit property as it belongs to the Public Trust and thereby causing
interference. On service of summons, the defendants appeared through their counsel
and filed written statement. The defendants specifically denying the contentions of
the plaint averments averred that suit is bad for non-joinder of Banashanakri
Devastana Trust as a party to the suit. The suit filed by the plaintiff's without
obtaining prior sanction from Charity Commissioner or leave of the Court as required
under Section 92 of CPC is not maintainable. It was also contended that the suit for
permanent injunction without claiming the relief of injunction is not maintainable. On
the basis of the pleadings, the Trial Court framed seven issues including two
additional issues. The plaintiff's got examined as PW1 and got marked Exs. P1 and
P36, whereas the defendants got examined defendant No. 3 as DW1 and got marked
Exs. D1 to D9. On appreciation of the evidence, the trial Court decreed the suit. Being
aggrieved by the same, the defendants preferred RA No. 231/2013 before the lower
appellate Court, which came to be dismissed. However, it was directed that the

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plaintiff's shall institute a suit for the protection order of injunction. Aggrieved by this
portion of the judgment and decree of the lower appellate Court, the plaintiff's are in
second appeal.
4 . This Court while admitting the appeal has framed the following substantial
questions of law:
i) Whether the lower appellate Court is justified in holding that the plaintiff's
shall file a suit for declaration of their title over the suit property, within six
months from the date of disposal of the regular appeal, to take protection of
the order of injunction, when both the courts below have concurrently held
that the plaintiff's have proved their possession as on the date of the suit and
the suit is filed only for perpetual injunction?
ii) Whether the lower appellate Court is justified in holding that the suit for
declaration of title is required to be filed, when the suit filed by the plaintiff's
is only for bare injunction and the title of the plaintiff's is not disputed by the
defendants and there is no issue in that regard?
iii) Whether the lower appellate Court is justified in recording a finding that
the plaintiff's have to file a suit for declaration of title, in the absence of
dispute of title by the other side?
iv) Whether the lower appellate Court is justified in making observation with
regard to the title, in the facts and circumstances of the case?
5 . Learned counsel Smt. Girija S Hiremath appearing for the plaintiffs/appellants
submitted that the lower appellate Court grossly erred in directing the plaintiff's to
file a suit for title after holding that the plaintiff's are in possession of the suit
property and entitled for relief of permanent injunction as claimed. The lower
appellate court has not properly applied its mind to the nature of the relief claimed in
the suit. No single document was produced by the defendants to prove that the suit
property belongs to the Banashankari Devasthana Trust (for short, 'Trust') and they
are the Trustees of the said Trust. In a suit for injunction, when the issues regarding
the possession and enjoyment of the plaintiff's over the suit property were held in
affirmative, declaration of title is not required. The lower appellate Court after
concurring with the judgment of the Trial Court allowed the appeal and very strangely
directed the plaintiff's to institute a suit for title which was not called for.
6. The learned counsel Sri Deepak S. Kulkarni, appearing for the defendants/caveator
respondent Nos. 1 and 2 submits that the additional issues framed by the Trial Court
as regards maintainability of the suit against the Trust and the suit for permanent
injunction without claiming relief of declaration was not properly answered by the
Trial Court, despite cogent evidence let in by the defendants. The suit of the
plaintiff's was decreed without appreciating the material evidence on record in a right
perspective. Hence, the defendants were constrained to file an appeal before the
lower appellate Court. The lower appellate Court after re-appreciating the evidence,
directed the plaintiff's to institute a suit for title, since the plaintiff's miserably failed
to produce any title deed. The title of the plaintiff's being not clear and the defence
taken by the defendants as the same is Trust property, it was directed that the
plaintiff's shall prove their title over the suit property within six months from the date
of disposal of the appeal.
7. Leaned counsel placed reliance on the judgment of the Hon'ble Apex Court in the

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case of Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs. & Others,
MANU/SC/7376/2008 : 2008 (3) KCCR 1769 to contend that it is for the Court to
exercise its discretion to identify cases where it will enquire into title and cases
where it will refer to plaintiff's to a more comprehensive declaratory suit, depending
upon the facts of the case. The Court exercised its jurisdiction in directing the
plaintiff's to file the suit to prove the title over the suit property, which cannot be
found fault with. Accordingly, the learned counsel prayed for dismissal of the appeal
answering the substantial questions of law in favour of the defendants.
8. Heard the learned counsel for the parties and perused the lower court records.
9 . The subject matter of the suit properties are stated to be the shops. The tax
demand extracts for the suit property Exs. P1 to P3 shows the names of the plaintiff's
after deleting the name of their fathers. The shops are constructed after obtaining
permission from the Grama Panchayat of Sulebavi by the father of the plaintiff's. It is
the contention of the defendants that the suit property belongs to the Trust and the
plaintiff's have no title over the same. In the cross-examination of DW1, the
description of the suit property is admitted. Further, DW1 has specifically admitted
that the plaintiff's are in possession of the suit properties. To substantiate their
defence, no documentary evidence was placed on record except ipse dixit statement
made by DW1. The Trial Court elaborately considering the evidence of both the
parties has given a finding that the plaintiff's have proved their possession and the
suit properties are not the Trust property. The said findings are confirmed by the
lower appellate Court.
10. In a suit for bare injunction, what is required to be proved is, the possession of
the suit property. In a suit for injunction, the issue of title would not arise. In the
present case, the relief claimed by the plaintiff's was bare injunction against the
defendants. Both the courts below have given a concurrent finding on the aspect of
the possession of the plaintiff's over the suit properties. In such circumstances, there
is no necessity for the lower appellate Court to direct the plaintiff's to institute a suit
to prove the title over the suit properties within a period of six months. The lower
appellate Court has misread the well-settled legal principles regarding the relief of
injunction though a reference was made to the judgment of the Hon'ble in the case of
Anathula Sudhakar (Supra), failed to appreciate the dictum pronounced by the
Hon'ble Apex Court. The Hon'ble Apex Court in para 17 has held thus:
17. To summarize, the position in regard to suits for prohibitory injunction
relating to immovable property, is as under:
(a) Where a cloud is raised over plaintiff's title and he does not have
possession, a suit for declaration and possession, with or without a
consequential injunction, is the remedy. Where the plaintiff's title is
not in dispute or under a cloud, but he is out of possession, he has
to sue for possession with a consequential injunction. Where there is
merely an interference with plaintiff's lawful possession or threat of
dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with
possession, normally the issue of title will not be directly and
substantially in issue. The prayer for injunction will be decided with
reference to the finding on possession. But in cases where de jure
possession has to be established on the basis of title to the property,

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 as in the case of vacant sites, the issue of title may directly and
substantially arise for consideration, as without a finding thereon, it
will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction,
unless there are necessary pleadings and appropriate issue regarding
title [either specific, or implied as noticed in Annaimuthu Thevar
(supra)]. Where the averments regarding title are absent in a plaint
and where there is no issue relating to title, the court will not
investigate or examine or render a finding on a question of title, in a
suit for injunction. Even where there are necessary pleadings and
issue, if the matter involves complicated questions of fact and law
relating to title, the court will relegate the parties to the remedy by
way of comprehensive suit for declaration of title, instead of deciding
the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and
appropriate issue relating to title on which parties lead evidence, if
the matter involved is simple and straight-forward, the court may
decide upon the issue regarding title, even in a suit for injunction.
But such cases, are the exception to the normal rule that question of
title will not be decided in suits for injunction. But persons having
clear title and possession suing for injunction, should not be driven
to the costlier and more cumbersome remedy of a suit for
declaration, merely because some meddler vexatiously or wrongfully
makes a claim or tries to encroach upon his property. The court
should use its discretion carefully to identify cases where it will
enquire into title and cases where it will refer to plaintiff to a more
comprehensive declaratory suit, depending upon the facts of the
case.
1 1 . In the light of the said judgment, it is clear that in a suit for injunction
simpliciter is concerned only with possession, the prayer for injunction will be
decided with reference to the finding on possession. But in cases de jure possession
has to be established on the basis of the title of the property, as in the case of vacant
sites, then the issue of title may directly and substantially arise for consideration, in
such cases, without a finding thereon, it would not be possible to decide the issue on
the possession. In the case on hand, the suit properties are not vacant sites but
shops, the lower appellate Court concurring with the finding of the Trial Court
relating to the possession dismissing the appeal of the defendants ought not to have
directed the plaintiff's to file a comprehensive declarative suit. If the title to the suit
property was necessarily to be established by the plaintiffs, then the findings of the
trial Court ought not to have been confirmed. In such circumstances, appeal filed by
the defendants would have been allowed. There was no necessity for the lower
appellate Court in making observation with regard to the title, when the issues are
decided by the trial Court against the defendants in a suit for bare injunction.
12. It is significant to note that the defendants have not challenged the judgment and
decree passed by the lower appellate Court. The findings recorded by the lower
appellate Court confirming the judgment and decree of the trial Court has reached
finality on the issue of possession of the plaintiff's over the suit property. If so, the
portion of the judgment and decree of the lower appellate Court so far as directing
the plaintiff's to institute a suit for title to take protection order of injunction within

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six months requires to be set-aside and accordingly is set-aside. In all other respects,
the judgment and decree passed by the lower appellate confirming the findings of the
trial Court is upheld.
1 3 . Accordingly, the substantial questions of law are answered in favour of the
plaintiff's and against the defendants.
14. In the result, the second appeal is allowed accordingly.
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