M. Sarojammal vs N. Raman @ Ramaiah and Others

A.N. Venugopala Gowda, J.—This first appeal is by the plaintiff in a suit for permanent and mandatory injunctions. The appellant/plaintiff and the respondent/defendant are related to each other. The plaintiff is the sister of the defendant. Plaintiff claims to be the absolute owner of a vacant site bearing khaneshumari No. 45/3, measuring east to west-25ft. and north to south-281/2ft. situated at Koramangala Grama Thana and more fully described in the schedule of the plaint, having purchased the same from one Kantharaju under a sale deed dated 23.04.1983. The defendant is the owner of site bearing No. 44 situated adjacent to the suit property and a common boundary situated to the western side separates the said two sites. Alleging that the defendant unauthorisedly put up construction without obtaining sanction plan and by committing trespass into a sizeable portion of the plaintiff''s property on the western side i.e., to an extent of 13 ft. x 21/2 ft., the suit was filed initially for permanent injunction and was amended to grant decree of mandatory injunction to remove the encroachment. Subsequently, the defendant resisted the suit. He admitted the relationship but denied the plaintiff having purchased the suit property and the sale deed being in her favour. Almost all the contentions of the plaintiff were denied and it was stated that he is the owner of khaneshumari No. 44 of Koramangala which is adjacent to the suit property and it is on the southern side of the schedule property. It was stated that the defendant purchased the property on 12.06.1980 and that the same measures east to west 12 ft. and north to south 281/2 ft. in khaneshumari No. 45, from one Rose Mary and the same was given the No. 45/6. It was stated that the entire property purchased by him measures 37 ft. x 28 ft. and numbered as khaneshumari No. 45/2 and 45/6 and that to the west of his property, there is property of BDA to an extent of 3 ft and there is a small culvert constructed by the BDA and that he is in possession and enjoyment to an extent of 37 ft. east and west, 281/2 ft. north and south and by obtaining licence, on 28.01.1983, he put up construction and that the plaintiff started troubling him. After amendment of the plaint, by filing additional written statement, the defendant contended that he never encroached upon the plaintiff''s property measuring 13 ft. x 21/2 ft., and resisted the suit.

The Trial Court framed the following:

ISSUES:

Whether plaintiff proves her lawful possession of the suit property on the date of the suit?

Whether plaintiff proves that defendant has committed encroachment in a portion of the suit? If so, what is the extent and location of the encroachment committed by the defendant in the suit property?

Whether the plaintiff is entitled for permanent injunction against the defendant as sought?

What decree or order?

ADDITIONAL ISSUE:

Whether the plaintiff is entitled to the relief of a mandatory injunction as prayed for by her?

The plaintiff, in order to prove her case, got examined her husband as PW-1 and Sri J. Salim Shariff was examined as PW-2. Exs. P1 to P5 were marked. For the defendant, DW-1 was examined, through whom Exs. D1 to D18 were marked. Exs. C1 to C5 were marked through the Court Commissioner. Learned Trial Judge, considering the rival contentions, has answered issue No. 1 in the affirmative, issue Nos. 2 & 3 and Additional issue in the negative and as a result, has dismissed the suit. This appeal is directed against the said Judgment and Decree.

Smt. M.R. Mamatha, learned advocate appearing for the appellant, after arguing the matter for sometime, submitted that the plaintiff/appellant may be permitted to file a comprehensive suit and seek appropriate reliefs. Sri Venugopal M.S., learned advocate appearing for the respondent/defendant has no objection for the appellant seeking relief, if any, in accordance with law.

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 by catena of decisions of the Apex Court. Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered and threatened by a defendant, a suit for an injunction simpliciter can lie, in as much as, such a person has a right to protect his possession against any person who does not prove a better title. Where a title of the plaintiff is in dispute or under a cloud or where the defendant asserts title thereto, the plaintiff will have to sue for declaration of title and consequential reliefs. Where the title of the plaintiff is under a cloud and the plaintiff is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and/or injunction. In the instant case, the title of the disputed extent of the suit property has been denied by the defendant, who has asserted title thereto. Furthermore, the plaintiff has admitted that the defendant by encroaching a portion of her property has put up construction and has sought for mandatory injunction. In the circumstances, the appellant/plaintiff ought to have filed a suit for comprehensive reliefs. The suit as brought forward being not maintainable, the plaintiff ought to have converted the suit to one for declaration even when the additional written statement was filed and by not seeking amendment of issues to include an issue on the question of title, in the absence of a prayer for declaration of title and an issue regarding title, let alone the pleadings required for a declaration of title, the parties did not had an opportunity to have a full-fledged adjudication regarding title. In the circumstances, submission made that the plaintiff be enabled to institute a comprehensive suit is justified.

In the result, the appeal being devoid of merit is dismissed. However, it is open to the appellant to institute a comprehensive suit regarding title and seek consequential reliefs. It is made clear that, nothing stated herein or by the Trial Court in the impugned Judgment shall be construed as an expression of opinion regarding title in any future suit for declaration and consequential reliefs that may be filed by the appellant, in accordance with law.

Keeping in view the relationship between the parties and the circumstances of the case, the parties are directed to bear their respective costs.