KARNATAKA HIGH COURT
N. Kumar and V. Suri Appa Rao, JJ.
The Golden Valley Educational Trust Oorgam, Kolar District —Appellant
versus
The Vokkaligara Sangha,
Bangalore —Respondent
R.F.A. No.1262 of 2006
Decided On 25.9.2013

Headnote:(a) Property law – Title – Total land 47 acres 11 guntas – 25 acres granted to plaintiff, and 20 acres to defendants – Remaining 2 acres 11 guntas not granted to any one – It cannot be said that defendant are in exclusive possession of the entire property – At best both would be treated to be in possession as co-owner. (Para 17, 26)

       (b) Property law – Commissioner directed to inspect the property and report – Commissioner reporting structures on the property – Also declaring which part belomngs to whom – Beyond jurisdiction – Title is to be decided by the court – Commissioner cannot dcide title. (Para 27)

       (c) Specific Relief Act – Section 57 – Mandatory injunction – Discretionary – Can never be ‘as of course’ – Undue delay – Amount to waiver or abandonment of the rights – a Fondation stone for buildings laid in 1974 on for institutions run by defenadant – Buildings comnpleted – Plaintiff not objecting – Plaintiff objecting in 1994 during construction of additional buildings – Not entitled to mandatory injunction – However it can claim damages. (Para 43)

       29 Mad. 497 (1906); AIR 1953 Mad. 456; 16 Cal. 252; 29 Mad. 497; 1970 AC 662; 1964 MYS. LJ SUPP. 879; AIR 1957 PAT 308; AIR 1959 RAJ. 97; AIR 1963 RAJ. 25; AIR 1965 MAD 318; AIR 1974 RAJ. 144; AIR 1978 ALL. 178 – Relied upon

       (d) Acquissence – Does not simply mean standing by or mere quiescence – It means assent after the party has come to know of his right – Need not always be express, and can be inferred – Where knowledge on the part of the person to be estopped is not proved, the doctrine of acquiescence does not apply. (Para 51)

       (1860) 3 LT 130; (1946) 78 RR 47; AIR 1960 PAT 474 – Relied upon

       (e) Property law – Mandatory injunction – Defendant putting up construction openly to the knowledge of the plaintiff – Plaintiff keeping quite for 20 years – Trial court rightly holding that plaintiff’s have acquiesced to the constructions by defendants disentitling plaintiffs for mandatory injunction. (Para 52)

       AIR 1951 ALL. 1999; - Relied upon

       (f) Property law – Possession – Grant in name of plaintiff and defendant both – Muttaion also in joint name – Defendant claimimg exlusive possession – Has to show ouster of plaintiff – In absence thereof defendants possession over entire property not estrablishd – Plaintiff on the other hand, taking steps to bifurcaste the property and getting its name entered into mutation records – Trial court granting temporary injunction – Plaintiff retstrained from interfereing with institutions of defendants under court order – Posession follows title – Plaintiff seeking declaration of title – Held such is maintianbale even without seeking the relief of possession. (Para 56, 58)

       (g) Adverse possession – The person seeking a declaration title by way of adverse possession should specifically plead the date from which his possession becomes adverse to that of the opposite party – In absence of crucial pleadings constituting adverse possession, the party cannot claim perfection of his title by adverse possession – Defendant not pleading adverse possession – No hostility between the parties – Trial court erroneously holding defendant’s title on basis of adverse possession contrary to materials on record – Mere possession over a statutory period will not become adverse possession. (Para 60, 62, 63)

       (h) Limitation Act, 1963 – Section 58 – Limitation for suit for declaration of title starts from the date the title is denied – Instantly defendant challenging mutation entries in 1994 dening title of plaintiffs – Limitaion would start from 1994 and suit could be filed within three years, i.e., up to 1997 – Plaintiff fling suit in 1994 itself – Suit held to be well witnin time. (Para 63)

       (i) Permanent injunction – Plaintiff establishing his title and possession – Attempt to encroach uopon the property – Police complaints – Litigations pending – Held, there being threat to right of plaintiff to enjoy the property peacefully, he is entitled to permanent injunction. (Para 65)

       (j) Additional document – Plaintiff filing application seeking permission to adduce additional evidence – Post litem documents – Not required for deiciding title of plaintiff – application dismissed. (Para 67)

       Result: Appeal allowed with proportionate costs.