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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
Sreenivas Harish Kumar, P.N.Desai, JJ.
Ramudu S/o. Sanna Basappa and ors. – Petitioners
Versus
K. Jayanth Kumar S/o. Late Megharaj @ Kushalchand and ors. – Respondents
Regular First Appeal No. 100266 OF 2015
Decided On : 17-03-2023
Code of Civil Procedure, 1908 - Order II Rule 2, (3), Order 26 Rule 9, Order 23 Rule 3 - Property - Specific Relief Act 1963 - Section 41(h) - Property - Widening road - Grant of permanent injunction - Judgment and decree is assailed in this appeal by defendants – Cause of action must be deciphered from material facts pleaded; events that culminated into driving plaintiff to approach court for relief or reliefs constitute cause of action - Para 24.
Finding of the Court:
On comparison of plaints in both suits and findings of court which decided suit, it becomes clear that on day O.S. was filed, plaintiffs were not in possession of schedule ‘B’ property - Sketch drawn by commissioner appointed by Court also show very clearly that many huts and like structures are in existence in southern portion of schedule ‘A’ property - Cause of action must be deciphered from material facts pleaded; events that culminated into driving plaintiff to approach court for relief or reliefs constitute cause of action - This assertion in plaint shows that they were aware that they should claim possession, but they omitted doing so - Plaintiffs did not want defendants extending their occupation beyond place where huts were in existence, that means they had no objection if defendants remained there - If they acquiesced in defendants’ possession and waived their right to take possession, it was nothing but intentional relinquishment - For all these reasons Order II Rule 2 CPC comes into play, and thus present suit is hit by Order II Rule 2 CPC.
Result: Appeal allowed.
JUDGMENT :
Sreenivas Harish Kumar, J.
The judgment and decree dated 15.10.2015 in O.S. 250/2005 on the file of II Additional Senior Civil Judge, Ballari, is assailed in this appeal by defendants No. 5, 9, 10, 15, 16, 19, 20, 22, 23, 26, 27, 29, 32 and 33, and the legal representatives of defendants No.11, 13, 18, 28, 30 and 31.
2. Referring to the parties with respect to the ranks in the suit, the pleadings are summarized as below :
Plaintiffs 1 to 3 are the sons of plaintiff No.4. The subject matter of the suit is property measuring 3 acres 4 cents in Ward No. VI, T.S.No.4/1, 4/2, 4/3A and 4/3B situated near Bengaluru-Bypass Road, Ballari. This entire property is described in schedule ‘A” to the plaint. Schedule ‘B’ property is a part of schedule ‘A’ property.
3. The original owner of schedule ‘A’ property was Mr. Azeez Sab. After his demise, the property was divided among his three legal representatives namely Mr. S.Wahid, Mr.S.Hameed and Mr. Khadir. Mr.S.Wahid and Mr.S.Hammed sold their shares to Smt.Rama Subbamma under two registered sale deeds dated 26.5.1998 and 4.6.1999. Mr.Khadir sold his share to Smt.P.Shanthi and P.Swapna, the daughters of Mr. P.Narayanappa under two separate registered sale deeds dated 26.5.1998. Thereafter the plaintiffs purchased the entire ‘A’ schedule property under three registered sale deeds dated 31.5.2000 from Smt. Rama Subbamma, P.Shanthi and P.Swapna for valid consideration. Thus the plaintiffs claim to have become absolute owners of ‘A’ schedule property and possessed it.
4. Some time four years before the suit was filed, the Government undertook the work of widening the tank bund road. By the side of tank bund road there were many hutment dwellers and when the road widening work was taken up, some of them tried to put up huts unauthorizedly on the southern side of schedule ‘A’ property. To prevent 232 hutment dwellers from occupying schedule ‘A’ property, the plaintiffs filed a suit, O.S.618/2001 in the Court of II Additional Civil Judge (Junior Division), Ballari and obtained an order of ad-interim injunction on 17.12.2001. The road widening work went on about a month; majority of the hutment dwellers residing beside the road relocated themselves to a place shown to them by the Government. But the defendants shifted their huts to schedule ‘B’ property, which forms southern portion of schedule ‘A’ property, in the last week of December 2001 when the plaintiffs were out of town. Defendants also tried to obtain power supply to their huts and at that time the plaintiffs filed the suit O.S.100/2002 in the Court of III Additional Civil Judge (Junior Division), Ballari, against KPTCL to restrain the latter from giving power supply to the huts and they obtained a decree also. Gradually the defendants made efforts to extend their huts to the adjacent land in schedule ‘A’ property without the consent of the plaintiffs and at that time the plaintiffs filed the suit O.S.153/2002 in the Court of II Additional Civil Judge (Junior Division), Ballari, to prevent them from altering or extending their huts beyond ‘B’ schedule property. The suit was dismissed on the ground that the plaintiffs ought to have sought the relief of possession and a suit for bare injunction was not maintainable. After dismissal of the suit, the defendants tried to extend their huts on the remaining land of schedule ‘A’ property in spite of resistance from the plaintiffs. Therefore the plaintiffs brought the suit against the defendants claiming reliefs in the following manner : -
“a) Directing the defendants to deliver actual, physical vacant and peaceful possession of the suit property to the plaintiffs, in case if the defendants fails to deliver the same may be delivered through the process of the court.
b) Directing the defendants to remove or demolish the encroached huts from the suit property by way of mandatory injunction. In case the defendants fails to remove, the same may be removed through the process of the court.
c) For grant
SupremeToday
To establish the sameness of interest, it is not necessary to establish sameness of the cause of action. Sameness of interest is a pre-requisite for application of under Order 1 Rule 8 of the C.P.C.
When there is a denial of title or a challenge raising a cloud, parties should file a suit for declaration of title, and adverse possession requires hostile possession denying the true owner's title.
Abandonment of an earlier suit without obtaining necessary permission under Order 23 Rule 1(4) CPC precludes the plaintiff from maintaining a subsequent suit on the same cause of action.
A suit for permanent injunction is not maintainable when the defendant raises a genuine dispute regarding the plaintiff's title, and the plaintiff fails to prove lawful possession.
A party cannot assert ownership via a sale deed if the seller has previously conveyed the property, and tenancy termination must follow proper notice.
A suit for recovery of possession is maintainable without a declaration of title when the plaintiff's ownership is undisputed and the defendant's encroachment is clearly established.
(1) It is plaint averment that is required to be primarily considered at stage of considering application under Order VII Rule 11(d) of CPC.(2) Plea with respect to Order II Rule 2 of CPC has to be e....
The plaintiff has to prove his case on his own strength, and in this case, the appellant failed to establish his possession of the suit property, leading to the dismissal of the second appeal.
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