Venkataswamy vs Narayana A. and Others

K. Sreedhar Rao, J.—The appeal arise out of the judgment and decree of the 7th Additional City Civil Judge, Bangalore passed in O.S. No. 6194 of 1992. The appellant-plaintiff filed the suit for mandatory injunction against the defendants 1 to 3 in the suit for their eviction from the suit premises described A and B Schedules of the plaint. A Schedule property consists of a house property bearing No. 98, khata No. 264/129 of Kodihalli, 16th ''B'' Main Road, Indiranagar, Bangalore and B Schedule Property is a vacant portion of the land adjoining the A Schedule property. Defendants 1 and 2 are made respondents in this appeal as respondents 1 and 2. The 4th defendant was the father of the appellant, since dead the is not made a party in this appeal, defendant 5-mother is made third respondent in the appeal.

It was the contention of the plaintiff before the trial Court that the suit schedule property is his exclusive property and out of grace he had allowed the defendants/respondents to reside in the suit schedule house jointly with him. After some time when the plaintiff found it inconvenient to accommodate the defendants 1 and 2 he requested them to vacate and get out of the house. Defendants 1 and 2 took an obdurate posture contending that they have joint interest in the property and refused to leave the house. In the given situation the plaintiff states that the defendants started cooking separately in the house. But all of them are residing jointly in the same premises. In other words it is not the case of the plaintiff and the defendants that defendants 1 and 2 are in exclusive possession of any portion of the house as such. Defendants 1 and 2 categorically contended that the suit property is the joint family property and that they have joint right in the said property. In the context of the disputed facts the Trial Court formulated the following issues:

Does plaintiff prove his lawful possession of the suit property on the date of suit?

Does plaintiff prove that defendants 1 and 2 are in occupation of part of the suit property with his consent temporarily?

Does plaintiff prove that defendants are interfering with his possession of the suit property?

Is plaintiff entitled to the reliefs as prayed for?

What decree or order?

The Trial Court answered Issues 1 and 2 partly in affirmative. However, dismissed the suit on the ground that the suit for mandatory injunction is not a tenable relief and the plaintiff should have asked for the relief of possession to oust the defendants. Being aggrieved, the present appeal is filed.

On going through the impugned judgment and pleadings of the parties, 1 find that the Trial Court is not clearly comprehended the disputed factual issues and legal question? that emerge out of them. The case of the plaintiff indicates that the defendants 1 and 2 were permitted to stay in the house gratuitously and it was in the nature of a licence. When he found that their stay becomes inconvenient he asked them to go out, for which they refused and continued their stay. Thereby according to the plaintiff the stay of defendants 1 and 2 becomes one of a trespasser.

From the facts and contentions put forth by both the parties, it is clear that none of the parties are in exclusive occupation of any of the portion of the house property. It appears that defendants 1 and 2 although are cooking separately in different rooms each one of them have unimpeded access for enjoyment of all the portions of the house. There-fore from the facts and material it indicates that plaintiff is not deprived of the possession of the property. In other words, the plaintiff and defendants are in joint possession and enjoyment of the property. In a given situation, it would be preposterous to make a demand on the plaintiff to seek the relief of possession, as he is already in joint possession and not deprived of the effective possession.

The case of the defendant precisely indicates that they have challenged the claim of the plaintiff that the property is the exclusive property belonging to him. On the other hand, they contend that it is a joint family property and they are co-owners or joint tenants.

The provisions of Section 26 of the Karnataka Court Fees and Suits Valuation Act has a relevant bearing on the questions involved in this case. Therefore, the extract of the same is given hereunder for convenient reference:

"26, Suits for injunction.--In a suit for injunction.--

(a) where the relief sought is with reference to any immovable property; and

(i) where the plaintiff alleges that his title to the property is denied; or

(ii) where an issue is framed regarding the plaintiffs title to the property,

fee shall be computed on one-half of the market value of the property or on (rupees one thousand), whichever is higher;

[(b) xxxxx];

(c) in any other case, whether the subject-matter of the suit has a market value or not fee shall be computed on the amount at which the relief sought is valued in the plaint or on rupees [one thousand], whichever is higher".

No doubt in a suit for bare injunction title to the immovable property does not arise for adjudication, however, it may be relevant for consideration, as an incidental question for considering the possession.

u/s 26(a)(i) where the plaint averments disclose that the title to the property is denied or where an issue is framed regarding the plaintiffs title to the property, the plaintiff has to pay Court fee of one-half of the market value of the property or Rs. 1,000/-, whichever is higher, otherwise in ordinary conditions the Court fee payable is only on the basis of the notional valuation.

The second situation dealt u/s 26(a)(ii) would arise in a ease wherein the written statement defendant denies plaintiffs title to the property. When the pleadings of the parties either by the plaint averments or by the averments in the written statement, the question of title to the immovable property is also projected as a factual controversy necessary for adjudication, the Court has to formulate an issue regarding the title to the immovable property notwithstanding that the suit filed by the plaintiff is only for a bare injunction. An issue is to be framed in accordance with the provisions of Section 26(a) regarding title and the findings thereon necessarily would act as res judicata.

In a suit filed for bare injunction when the pleadings of the parties warrant framing of an issue regarding title any adjudication of the suit only from the stand point of possession without addressing to the question of title would be only a superfluous approach and would not be a meaningful and effective adjudication, further giving rise to multiplicity of proceedings. Therefore, keeping in view the legislative purport and intent of the provisions of Section 26 it was just and necessary for the Trial Court to have framed an issue with regard to the title on the basis of the averments made by the defendant in the written statement. In that view of the matter, I find that the Trial Court ought to have framed an issue with regard to the title to the property and should have called upon the plaintiff to pay Court fee on one-half of the market value.

It is also pertinent to note from the averments made in the written statement a mention is made that the plaintiff has filed a suit in O.S. No. 482 of 1992 on the file of the Munsiff and Judicial Magistrate First Class, Court, Malur for partition and possession of the family property. Evidently, the suit properties are not the subject-matter in that suit. The Counsel for the defendants also submits that they have not made any efforts to get the suit property included in the said partition suit. Therefore, the present proceedings stands out distinctly un-reliable to the dispute raised in O.S. No. 482 of 1992.

For the reasons aforesaid, it was imperative on the part of the Trial Court to have framed an issue with regard to the title as observed above and to have given fair opportunity to both the parties to adduce evidence with regard to the nature of the property as to whether it is exclusive property of the plaintiff or otherwise depending upon the answer to the question the plaintiff would be entitled to the final relief.

The finding of the Trial Court that the relief of mandatory injunction is not a tenable relief also does not appear to be a proper view taken. In a situation where the parties are in unhindered joint possession of the property when one of them claims exclusive right over the property and seeks ouster of the other persons who are in joint enjoyment as licensees, the proper relief under such circumstances could be ejectment or mandatory injunction directing the defendants to leave the house. I find that the Trial Court has not taken a proper approach to the disputed questions of law and fact and in that regard, I find that the order of the Trial Court is to be set aside, and matter to be remanded with a direction to formulate an issue with regard to the title on the basis of the contention raised in the written statement and to dispose off the suit in accordance with law, keeping in view the fact that the suit is pending for the past 10 years, I direct that the Trial Court to dispose off the suit within six months from the date of receipt of the records.

I.A. No. IV is disposed off with a direction to the respondent to make necessary application before the Trial Court if he so desires.