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2023 Supreme(Online)(KAR) 17527
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JANUARY, 2023
BEFORE
THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.S.A NO.61 OF 2007(DEC/ INJ)
BETWEEN:
1. SRI VENKATESH M
S/O MUNIYAPPA
AGED ABOUT 62 YEARS
2. SRI M RAMAIAH
S/O MUNIYAPPA
AGED ABOUT 60 YEARS
3. SMT VENKATAMMA
W/O M VENKATESH
AGED ABOUT 57 YEARS
4. SRI MUNIVENKATAPPA
S/O MUNIYAPPA
SINCE DEAD ON 06.03.2019
BY HIS LRS.
4A). SRI.MUNIRAJU,
AGED ABOUT 35 YEARS
4B). SRI.NARAYANA,
AGED ABOUT 32 YEARS
4C). SRI.HARISHA,
AGED ABOUT 26 YEARS
ALL ARE SONS OF MUNIVENKATAPPA
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ALL ARE R/AT SURAGAJAKKANAHALLY VILLAGE
KASABA HOBLI, ANEKAL TQ,
BANGALORE DIST-560105.
...APPELLANTS
(BY SRI.H NAGARAJA, ADVOCATE)
AND:
1. SMT GUNDELLAMMA @ MUNIYAMMA
W/O LATE YERRAPPA
SINCE DEAD ON 13.12.2013
BY HER LRs.
1A). SRI.MUNIYELLAPPA
AGED ABOUT 68 YEARS
1B). SRI.VENKATESHAPPA,
AGED ABOUT 60 YEARS
1C). SRI.RAMAPPA
AGED ABOUT 45 YEARS
ALL ARE SONS OF LATE YERRAPPA
AND GUNDELLAMMA @ MUNIYAMMA
R/AT DYAVASANDRA, JIGANI HOBLI,
ANEKAL TALUK, BANGALORE (R) DISTRICT.
1D). SMT.VENKATAMMA
W/O MUNIYELLAPPA,
AGED ABOUT 55 YEARS
R/A MULLUR, GUNJUR POST,
SARJAPURA HOBLI, KODATHIGATE,
BANGALORE SOUTH.
1E). SMT.YELLAMMA,
W/O CHANDRANNA,
AGED ABOUT 52 YEARS,
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R/AT KARPUR VILLAGE,
BASAVANAHALLY PO, ANEKAL TALUK,
BANGALORE DISTRICT.
1F). SMT.JAYAMMA
W/O SRI.CHICKA MUNIYAPPA,
SINCE DEAD BY L.Rs.
1F)1). SRI.CHICKA MUNIYAPPA
H/O LATE JAYAMMA
AGED ABOUT 60 YEARS
MARSUR, ANEKAL TALUK-562106.
1F)2). SMT.USHA W/O SRINIVAS
D/O LATE JAYAMMA
AGED ABOUT 28 YEARS,
PARVATHI NAGARA,
ATTIBELE, ANEKAL TALUK,
BANGALORE DISTRICT.
1F)3). SRI.KANTHA
S/O CHICKA MUNIYAPPA
AND LATE JAYAMMA,
AGED ABOUT 25 YEARS,
R/AT MARSUR, ANEKAL TALUK,
KASABA HOBLI,
BANGALORE – 562106.
…RESPONDENTS
(BY SRI.NARESH KUMAR P.L, ADVOCATE FOR
SRI.G.MANIVANNAN, ADVOCATE FOR R1(C) TO (F);
R1(A), R1(B), R1(F)(1) TO R1(F)(3) ARE SERVED &
UNREPRESENTED)
THIS RSA IS FILED U/S.100 OF CPC AGAINST THE
A plaintiff's suit for declaration of title can be maintained even if the plaintiff is not found to be in possession.
Headnote:
SPECIFIC RELIEF ACT - SECTION 34 - DECLARATION OF TITLE - POSSESSION - PLAINTIFF NOT IN POSSESSION - SUIT FOR DECLARATION AND INJUNCTION - MAINTAINABILITY
Fact of the Case:
Plaintiff filed a suit for declaration of title and injunction over a property, claiming to have inherited it from her mother. The defendants claimed title based on a Will executed by the plaintiff's mother. The trial court held that the plaintiff had proved her title but not her possession, and granted a declaration of title and injunction. The appellate court modified the decree, holding that the defendants were entitled to continue in possession until evicted through due process of law.
Finding of the Court:
The court held that even if the plaintiff is not found to be in possession, the courts are still vested with jurisdiction to grant a declaration of title under Section 34 of the Specific Relief Act. The court relied on the Supreme Court judgment in Akkamma and others v. Vemavathi and others, which held that a plaintiff's suit for declaration cannot be outrightly rejected under Section 34 for want of lawful possession.
Issues: Whether the judgment and decree of the lower appellate Court is contrary to Section 34 of the Specific Relief Act?
Ratio Decidendi: The court interpreted Section 34 of the Specific Relief Act to mean that even if a plaintiff is not found to be in possession, the courts have jurisdiction to grant a declaration of title. This interpretation is in line with the Supreme Court's judgment in Akkamma and others v. Vemavathi and others.
Final Decision: The appeal was dismissed, and the appellate court's judgment and decree were upheld.
AND
DECREE
DT.10.8.2006
PASSED
IN
R.A.NO.7/2003 ON THE FILE OF THE PRESIDING OFFICER,
DIST. AND SESS. JUDGE, FTC-II, BANGALORE RURAL
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DIST., BANGALORE, PARTLY ALLOWING THE APPEAL FILED
AGAINST THE JUDGMENT AND DECREE DT.12.12.2002
PASSED IN O.S.NO.793/95 ON THE FILE OF THE PRL.
CIVIL JUDGE (JR.DN) AND JMFC, ANEKAL.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by the
defendants questioning the judgment and decree of
the Courts below wherein the plaintiff’s suit seeking
the relief of declaration and injunction was decreed by
the trial Court and partly modified by the appellate
Court
holding
that
plaintiff
has
succeeded
in
establishing her title but however, it is the defendants
who are found to be in possession and therefore, the
appellate Court has modified the judgment and decree
of the trial Court holding that defendants are entitled
to be in possession till they are evicted through due
process of law.
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2.
For the sake of convenience the parties are
referred to as per rank before the trial Court.
3.
The plaintiff has instituted the present suit
seeking relief of declaration of title and for permanent
injunction. The subject matter of the suit is a site
bearing No.5 with asbestos sheet house situated at
Suragajakkanahalli,
Kasaba
Hobli,
Anekal
Taluk
measuring 40 x 30 feet. The plaintiff claims that the
suit property was granted to her mother and her
mother was in exclusive possession. The plaintiff
contended that she is the only daughter of original
grantee and therefore, claimed that she has inherited
the property on account of death of her mother on
9.11.1984. The plaintiff contended that she has
constructed
a
house
and
has
obtained
power
connection from KEB. The plaintiff alleged that
defendants being strangers tried to dispossess her and
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are asserting title over the property. Hence, the
present suit.
4.
On receipt of summons, the first defendant
admitted that plaintiff’s mother was the absolute
owner of the property in question. However, the first
defendant
claimed
that
plaintiff’s
mother
Madduramma bequeathed the suit property under the
Will dated 12.12.1982. Therefore, the first defendant
asserted that he acquired valid right and title based
on the Will executed by plaintiff’s mother and he has
constructed a residential house and hence, prayed for
dismissal of the suit.
5.
The plaintiff and defendants to substantiate
their
respective
claims
have
let
in
oral
and
documentary evidence. The trial Court referring to
the evidence on record has answered Issue No.1 in
the affirmative and held that plaintiff has succeeded in
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proving that she is the absolute owner of the
property. However, while answering Issue Nos.2 and
3 in the negative, the trial Court has held that plaintiff
has failed to prove her lawful possession over the suit
schedule property. Issue No.4 was answered against
first defendant holding that first defendant has failed
to prove due execution of the Will dated 12.12.1982.
The trial Court though answered Issue Nos. 2 and 3 in
the negative following the principle that possession
follows title and having held that plaintiff is the
absolute owner of the suit schedule property has
proceeded to decree the suit and thereby declared
that plaintiff is the absolute owner in possession of the
suit
schedule
property
and
granted
perpetual
injunction restraining the defendants from interfering
with plaintiff’s possession of the suit schedule
property.
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6.
The defendants feeling aggrieved by the
judgment and decree of the trial Court preferred an
appeal before the appellate Court. The appellate
Court having independently assessed the oral and
documentary evidence proceeded to concur with the
conclusions and findings recorded by the trial Court
insofar as the relief of declaration of title is concerned.
However, taking cognizance of the findings recorded
by the trial Court on Issue Nos.2 and 3, the appellate
Court held that t
