Thippegowda vs B.D. Javarayashetty and Others

K.N. Phaneendra, J.—This Regular Second Appeal is preferred calling in question the concurrent findings recorded by the Civil Judge (Jr. Dn.) Arkalgud in OS No. 215/1999 dated 7.1.2005 confirmed by the Fast Track Court at Arkalgud in RA No. 256/2008 dated 7.3.2011.

After hearing the parties, this court has framed the following substantial question of law:

"Whether the courts below are legally correct in decreeing the suit of the plaintiff, when plaintiff admits that the 3rd defendant has constructed a building on the plaint schedule property?"

Before adverting to answer the above said substantial question of law, it is just and necessary to have the brief facts of the case as under:

3.1 For the purpose of easy understanding and convenience, the ranks of the parties before the Trial Court are retained.

3.2 The plaintiff Sri B.S. Sannaswamy filed a suit for permanent injunction against the defendants restraining them from interfering with the plaintiffs peaceful possession and enjoyment of the suit schedule property. The suit schedule property is a site bearing No. 2 of Ramanathapura village panchayat, Arkalgud Taluk, Hassan District, measuring East to West 50'' and North to South 25'' having specific boundaries. The plaintiff claimed the said property as his own, on the basis of the Hakku Patra issued by the panchayath on 12.09.1989 and katha has also been made out in his name and he has been in possession and enjoyment of the same and the defendant No. 1 in collusion with the second defendant attempted to interfere with the possession of the plaintiff by putting barbed wire fence to the suit schedule property about three days prior to the filing of the suit. Hence, the plaintiff has filed the said suit.

3.3 The defendant in pursuance of the summons issued, appeared and contested the suit. Apart from denying the case of the plaintiff in toto, it is the case of the defendant that the suit schedule property originally belonged to Ramanathapura Panchayath. In the year 1979 itself inclusive of the suit schedule property, a site, was granted in favour of one Huchhegowda measuring East to West 60'' and North to South 50''. In the year 1998, the said Huchchegowda sold the same to the 3rd defendant and since then, the 3rd defendant has been in possession and enjoyment of the said property and there is no question of interfering with the plaintiffs possession.

3.4 On the basis of the rival contentions of the parties, the Trial Court has framed the following issues:

"(1) Whether the plaintiff proves that he is in lawful possession over the suit schedule property?

(2) Whether the plaintiff proves the interference by the defendant No. 1 and 3?

(3) Whether the plaintiff is entitled for permanent injunction as prayed in the suit?

(4) What order or decree?"

3.5 Before the Trial Court, the plaintiff examined himself as PW-1 and got marked Exs. P-1 to P-16. The 3rd defendant examined himself as D.W. -1 and got marked Exs. D-1 to D-24 and first defendant examined himself as D.W. -2 and got marked Exs. D-25 and D-26. During the course of cross examination of PW-1 Exs. C-1, C-1A and C-1, C-1(a)(b) were got marked. After the trial, considering the oral and documentary evidence produced before the court, the court has come to the conclusion that the plaintiff is the owner and he was in possession as on the date of the suit. Therefore, granted the decree of injunction in favour of the plaintiff as prayed.

Being aggrieved by the above said judgment and decree of the Trial Court, the defendant approached the First Appellate Court i.e., Fast Track Court, Arkalgud which re-evaluated the evidence on record and formulated the following points for consideration:

"(1) Whether the Trial Court has failed and erred in considering the oral and documentary evidence of both sides with case facts in accordance with law and the impugned judgment is liable to be set aside?

(2) Whether there are any reasons for this court to interfere with the judgment of the Trial Court?

(3) What order?"

Answering the point No. 1 in the ''Negative'', the First Appellate Court has also held that the judgment and decree passed by the Trial Court is proper and correct. Hence, it dismissed the appeal.

Though the plaintiff led evidence, during the course of evidence, it is admitted by the plaintiff that the defendant No. 3 is in possession of the suit schedule property. But it is the case of the plaintiff that defendant No. 3 has subsequently trespassed into the property and constructed a house and compounded the property with a barbed wire fence. Though the Trial Court and the First Appellate Court have observed this, but they have held that as on the date of the suit, the plaintiff established his possession over the property. Therefore, the plaintiff is entitled for an order of injunction.

The only question that arises to this court is that -

"Whether the plaintiff who is not in possession of the suit schedule property, either on the date of the suit or as on the date of the decree, dispossessed during the suit without restoring the possession to the plaintiff or without there being any amendment to the plaint or any restoration of possession u/s. 144 of CPC, injunction can be granted in favour of such person."

The learned counsel appearing for the appellant has categorically taken me through the observations made by the Trial Court and the First Appellate Court that as on the date of the suit, the defendant No. 3 had failed to prove that he has constructed a house in the suit schedule property and it also declared virtually the plaintiff is the owner of the property and holding that the defendant No. 3 has not acquired any right, title, interest over the property. It is a very settled principles of law that any finding given by the court with regard to the declaration, declaring the title without there being a suit filed for declaration and title and there being no issues between the parties, such an observation by the court becomes redundant and it cannot be considered that the parties would acquire right, title and interest over the property on the basis of such judgment. In an injunction suit, the only point that would arise for consideration of the court is that:

"Whether the plaintiff establishes his possession whether lawful or a settled possession over the property and then only he is entitled to an order of injunction at the hands of the court."

It is also a settled principle that a person who is a trespasser and who continues to be in possession of the property for long time and if his possession can said to be settled possession, in such an eventuality the said person is also entitled to protect his possession till he is evicted from due process of law by the person who is having better title and entitled for the possession of the property. Therefore, whatever the observation made by the Trial Court and the First Appellate Court, with regard to the title to the property in an injunction suit, that may not come to the help of the parties. It is also a well settled principle of law that in a suit for injunction the court can''t give any finding with regard to the title or declare the title of anybody but the title can be gone into for the collateral purpose of considering source and the nature of possession of the parties over the suit schedule property.

In this background, the evidence of the parties, have to be appreciated. Before adverting to the evidence of the plaintiff, it is just and necessary to bear in mind the grounds taken up by the respondent. It is contended by the learned counsel for the respondent that though there is some admission on the part of the plaintiff, it is only a stray admission and it cannot be relied upon. The plaintiff has proved his possession over the property as on the date of the suit and also as on the date of the decree. Secondly, he contended that if for any reason the court comes to the conclusion that the plaintiff was dispossessed from the possession of the suit schedule, the relief can be moulded and the possession can be granted in favour of the plaintiff and also with a consequential injunction. The learned counsel appearing for the appellant submitted that it is not a stray admission on the part of the plaintiff. It is an admission unequivocal on the part of the plaintiff that the defendant is in possession of the property as on the date of passing of the decree by the Trial Court. There is no material to show that actually the plaintiff was dispossessed from the suit schedule property and plaintiff has not stated anything in the evidence to this extent. Further added to that, the plaintiff never made any attempts to amend the plaint to convert the suit for declaration or for recovery of possession of the property. The Trial Court and the First Appellate Court have not even stated that the plaintiff was dispossessed and plaintiff is entitled for possession and that after taking possession, the plaintiff is entitled for injunction. Both the courts have not molded any relief in favour of the plaintiff. The plaintiff also not challenged the said judgment and decree passed by the Trial Court and the First Appellate Court. He has not prayed before the Trial Court or the appellate court that he is entitled for moulding of the relief and consequential injunction thereof. It is the appellant who challenged the judgment and decree passed by the courts below. In the appeal filed by the defendant, no relief can be claimed or moulded in favour of the plaintiff. On the other hand, the defendant who has established the possession over the suit schedule property, as on the date of the suit throughout, even if it is considered, he is not the owner of the property, but plaintiff is not entitled for any injunctive relief when he is not in possession of the suit schedule property.

On perusal of the evidence of the plaintiff PW-1, in the examination in chief he has stated that as on the date of the suit, he was in possession of the property and defendant made attempts to put up barbed wire fence around the suit property, therefore he filed the suit, but during the course of cross examination, it is suggested and admitted that there is a building in the suit schedule property, but the plaintiff volunteered to say that the building was constructed after institution of the suit. He has also admitted that the 3rd defendant got constructed the said building. The plaintiff further volunteered and said that the defendant was the Chairman of the Grama Panchayath, Ramanathapura and taking undue advantage of his position, he got constructed the said building. Witness further volunteered that the suit property is in possession of the defendant No. 3 after construction of the building. It is suggested that even prior to the filing of the suit, the 3rd defendant has constructed the said building but the said suggestion was denied.

In the course of further cross examination dated 26.8.2004, it is further admitted that the suit schedule property is situated in between the property of Shama Iyengar and KEB in site bearing No. 121. It is stated that the said property measures 60'' x 50'' but not 80'' x 30'' as suggested. The boundaries to the said property is also admitted. It is also admitted that surrounding the said boundary, there is a barbed wire fence to the said property and it is admitted that after filing of the suit, the 3rd defendant has been in possession of the said property. It is not only in this manner the plaintiff has admitted the possession of the defendant No. 3, but also in the course of evidence of the defendant examined as D.W. -1 suggestion has been made, suggesting that the defendant has tampered the licence to make believe the court that he got constructed the building prior to the institution of the suit. It is further suggested that subsequent to the institution of the suit, the defendant No. 3 got constructed the building illegally in the suit schedule property. Looking from the above said admission on the part of the plaintiff, during the course of cross examination and also making some suggestion by the plaintiff to the defendant in the cross examination of the defendant, it cannot be said that it is a stray admission with regard to the possession of the property. Therefore, whether it is prior to the filing of the suit or after filing of the suit, the defendant came to the possession of the property is insignificant, but the fact remains that on the date of the evidence before the court, the defendant No. 3 has shown to be in possession of the suit schedule property.

I do not want to discuss with regard to the title and legality of the possession of the defendant because of the simple reason the plaintiff has not come up before this Court for modification of the judgments of the Trial Court. It is the defendant who has come up before this Court.

It is in this background, the court has to analyse under what circumstances, the court can issue permanent injunction relating to immoveable properties. Looking to the factual aspects of this case, the defendant at the time of filing the written statement itself has claimed that he has been in possession of the property on the basis of the sale deed executed by Huchchegowda the previous owner to whom the site was granted inclusive of the suit schedule property in the year 1979. Even after filing of the written statement, the plaintiff did not choose to convert his suit into declaration. No effort has been made to amend the plaint during the pendency of the suit for the purpose of recovery of possession of the property.

In this background, it is worth to note a decision of the Hon''ble Apex Court reported in Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs. and Others, , wherein the Hon''ble Apex Court has in detail dealt with under what circumstances, prohibitory injunction relating the immovable property can be granted. The guidelines have been issued in the following manner:

"(a) Where a cloud is raised over plaintiffs title and he does not have possession, a suit for declaration and possession. With or without a consequential injunction, is the remedy. Where the plaintiffs 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 plaintiffs 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, 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). 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 straightforward, 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 questions 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."

The Hon''ble Apex Court has also observed at paragraphs 27 and 29 that though in a suit for injunction, the questions of fact regarding the title, which is neither pleaded nor the subject matter of any issue formulating questions of title which did not arise in second appeal, the courts cannot give any finding with regard to the title as such in an injunction suit.

It is the fundamental basic principles of civil jurisprudence that civil cases are circumscribed by the limitations placed by the rules of pleadings, nature of relief claimed and the court fee paid. The predicament of plaintiffs was brought upon themselves, by failing to convert the suit to one for declaration even when the written statement was filed. If they were not in possession of the schedule property on the date of the suit or even if they were subsequently dispossessed from the suit schedule property during the pendency of the suit and if in the written statement, the plaintiffs title and possession is denied, it is the duty of the plaintiff to convert the suit for declaration and for possession. He has to seek for amendment of the pleadings and issues to include the issue on the question of title. In the absence of a prayer for declaration of title and for recovery of possession, mere suit for injunction cannot be continued and mere suit for injunction is not maintainable unless the plaintiff has put in possession of the property if he is dispossessed during the course of the suit. In this case, when the plaintiff says that during the pendency of the suit, if he was dispossessed, he should have made necessary application for converting the suit for declaration of title and for possession or he could have ventured upon to file an application u/s. 144 of CPC for restoration of possession, if the plaintiff was illegally dispossessed from the suit schedule property. Such things have not been done by the plaintiff. Whether this anomaly can be rectified during the course of second appeal. In the above noted decision of the Hon''ble Apex Court, the said point also covered, observing that the question which could not have been considered in the suit or in the first appeal, could not be considered in the second appeal.

The learned counsel for the appellant in this regard, has also relied upon a decision of the Hon''ble Apex Court reported in Rameshwar and Others Vs. Jot Ram and Another, with connected cases and drawn my attention to paragraph 8 of the judgment, wherein the Hon''ble Apex Court has observed that -

"Two propositions are available. Firstly, it was held that "it is a basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceedings." This is an emphatic statement that the right of a party is determined by the facts as they exist on the date the action is instituted. Granting the presence of such facts, then he is entitled to its enforcement. Later developments cannot be defeat his right because, as explained earlier, had the court found his facts to be true, the day he sued he would have got his decree. The court''s procedural delays cannot deprive him of legal justice or rights crystallized in the initial cause of action."

"It is also observed that - subsequent events in the course of the case cannot be constitutive of substantive rights enforceable in that very litigation except in a narrow category (later spelt out) but may influence equitable jurisdiction to mould reliefs. Conversely, where rights have already vested in a party, they cannot be nullified or negated by subsequent events save where there is a change in the law and it is made applicable at any stage."

The above said ruling in my opinion, is not applicable in a straitjacket manner so far as the injunction suits are concerned. No injunction can be granted in favour of a person who is not in actual possession of the property as on the date of the suit and also as on the date of the decree. If the plaintiff is dispossessed during the course of the suit and if the possession is not restored to the plaintiff, he cannot by means of enforcing the decree for injunction, recover possession of the property. Therefore, it goes without saying that mere decree for injunction becomes unenforceable unless the plaintiff is in possession or put in possession of the property. Further added to that, the above said decision is not applicable to this present case because of the reason the plaintiff has not sought for restoration of possession or for moulding the relief before the Trial Court or before the First Appellate Court. Neither the Trial Court or the First Appellate Court have moulded the relief, granting possession of the property to the plaintiff and then granted injunctive relief.

One more aspect to be taken note of is the plaintiff has never challenged the judgment and decree passed by the Trial Court or the First Appellate Court before this court seeking for moulding of the relief. Even no counter appeal or cross appeal has been preferred by the respondent herein. In the above said circumstances, when the plaintiff found to be not in possession of the property, is not entitled for a bare injunction against the defendant.

It is also well settled principle that where a person found to be in possession of the property, whether prior to the suit or during the pendency of the suit, his possession even if it is held to be illegal cannot be disturbed without recourse to due process of law even if he is unable to show title over the property. If a person in possession has been dispossessed in an unlawful manner and by force, then, within a period of limitation, dispossessed person can file necessary amendment to the suit or seek for possession of the property or seek for restoration of the property as provided under Sec. 6 of the Specific Relief Act.

Therefore, looking from any angle, the judgment rendered by the Trial Court and the First Appellate Court are against to law and the courts have granted the decree for injunction in favour of a person without being in possession. Hence, the above said two judgments of the Trial Court and the First Appellate Court deserves to be set aside and consequently, the plaintiffs suit is liable to be dismissed.

Before parting with the Judgment, the learned counsel for the respondent also tried to make out a cloud on the title of the defendant. It is his contention that both the courts held that the site had not at all been granted in favour of the vendor of the defendant and there is concoction of the document etc., But it is not the case of the defendant before the court. It is the plaintiff to prove his case by discharging his burden. If the plaintiff is able to show on his own that he is entitled for the relief, then the question of defendant''s case has to be looked into. When no counter claim is made by the defendant nor he has paid any court fee for any relief, the title and possession of the defendant becomes irrelevant in a suit for injunction. Therefore, the court cannot delve upon the case of the defendant in order to support the case of the plaintiff particularly in Regular Second Appeal, the factual aspects cannot be gone into.

In the above said circumstances, the Regular Second Appeal deserves to be allowed. The substantial question of law is answered in the ''Negative'' and pass the following.

ORDER

This Regular Second Appeal is allowed. The judgment and decree of the Trial Court passed in OS No. 215/1999 dated 7.1.2005 and the judgment and decree passed in RA No. 256/2008 dated 7.3.2011 are hereby set aside. Consequently, the suit of the plaintiff is dismissed.