Plaintiff Can Sue For Possession Without Seeking Relief Of Declaration If His Title Is Not In Dispute Or Under A Cloud: Karnataka HC

The Karnataka High Court has observed that where the plaintiff’s title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction.

In that context, the Bench of Justice HP Sandesh observed that, "Where the plaintiff’s title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with the plaintiff’s lawful possession or threat of dispossession, it is sufficient to sue for an injunction simplicitor. It is also observed that where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property."

Counsel BK Manjunath appeared for the appellant, while Counsel G Lakshmeesha Rao appeared for the respondents.

In this case, the dispute concerned the ownership and possession of a property measuring 10 acres 36 guntas. The plaintiff claimed ancestral joint family ownership, citing a partition in 1984. The plaintiff accused the respondents of encroachment in 1990, leading to a legal battle.

The Trial Court ruled in favor of the plaintiff, but the First Appellate Court reversed this decision, asserting the suit was barred by limitation.

The Court observed that the defendant was not claiming title but he only claimed that he was in possession over the said property for a long period, while failing to state the same when he was put in possession. In furtherance of the same, it was observed that, "he says that from 100 years and in another breath, he says that from 30 years. Thus, it is also not specifically pleaded that when Sy.No.37 was purchased by the defendant. Apart from that answer was elicited from the mouth of DW1 that he came to know about the possession in Sy.No.37 only after the inspection made by CW1. Hence, the First Appellate Court committed an error in coming to the conclusion that without seeking the relief of declaration, a possession cannot be granted."

Holding that the very approach of the First Appellate Court was erroneous, the appeal was allowed.

Appearances:

Appellant: Counsel BK Manjunath

Respondents: Counsel G Lakshmeesha Rao

Cause Title: HP Nagaraja vs Channappa Gowda & Ors.

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