2025 Supreme(Online)(Kar) 38610

THE HIGH COURT OF KARNATAKA
Ashok S. Kinagi, J
C. K. Umesh – Appellant
Versus
Channamma – Respondent
RSA No. 425 of 2013|RSA No. 5 of 2020

A subsequent suit for declaration and possession is maintainable despite a pending injunction suit absent any stay order. Undivided property gifted without being divided by metes and bounds does not grant recipients exclusive rights to specific portions, requiring a formal partition suit to establish separate possession.

Headnote:(A) Code of Civil Procedure, 1908 - Section 100 - Second Appeal - Bar of suit - Filing of subsequent suit for declaration of title and possession during pendency of earlier suit for injunction - Propriety thereof - Absence of stay on proceedings in earlier suit does not create a legal impediment to maintain and proceed with subsequent suit for consequential relief - Subsequent suit for declaration being comprehensive renders earlier injunction suit redundant. (Paras 16, 38)

(B) Property Law - Gift deed - Partition - Property not divided by metes and bounds - Where property is gifted without specific partition, recipients cannot claim exclusive possession of specific portions without filing a suit for partition - Failure to prove nature of possession and exclusive entitlement leads to rightful recovery of possession by title holder. (Para 17)

(C) Evidence - Discrepancy in measurement - Minor variations in measurement descriptions between title documents do not constitute a substantial question of law where identity and ownership are otherwise established. (Para 18)

Facts of the case:
The respondent (plaintiff) initially filed a suit for permanent injunction, which was decreed. During the pendency of an appeal against that decree, the respondent filed a subsequent suit for declaration of title and recovery of possession, alleging that the appellants (defendants) had occupied the property under the guise of temporary permission and failed to vacate. Both lower courts decreed the suit for declaration and possession, leading the appellants to file regular second appeals against the judgments of both the injunction suit and the suit for declaration.

Findings of Court:
The court observed that the initiation of a substantive suit for declaration and possession is not barred by the pendency of a prior suit for injunction, provided no stay order exists. Regarding property rights, the court concluded that as the subject property was not divided by metes and bounds at the time of the execution of the gift deeds, the defendants lacked the right to exclusive possession of specific portions without first seeking a proper partition and separate possession.

Issues: Whether the pendency of a suit for permanent injunction acts as a legal bar to a subsequent suit for declaration of title and possession; whether the lack of division by metes and bounds in gift deeds defeats claims of exclusive possession; and whether measurement discrepancies between documents constitute a substantial question of law.

Ratio Decidendi: A subsequent suit for a more substantive right, such as a declaration of title and possession, is maintainable despite a pending suit for limited relief like injunction, provided proceedings are not stayed. Furthermore, owners of undivided interests in property created via gift cannot assert exclusive rights over specific physical portions without formal partition proceedings.

Result: Appeals dismissed.