Judgment:
1 IN THE HIGH COURT OF KARNATAKA R KALABURAGI BENCH DATED THIS THE09H DAY OF DECEMBER, 2021 BEFORE THE HON’BLE MR.JUSTICE M.G.S.KAMAL RSA NO.3119/2007 BETWEEN:
1. CH.GNYANESHWAR S/O SHARVALINGAM, AGE:
49. YEARS, OCC: BUSINESS AND AGRI. R/O: H.NO.9-4-143, QAZI COLONY, BIDAR-585401.
2. MRS. M.VANITHA W/O M.ANJIREDDY, AGE:
40. YEARS, OCC: HOUSEHOLD & AGRIL. R/AT: H.NO.9-4-138, QAZI COLONY, BIDAR-585401.
3. Y.NARENDRA REDDY S/O KRISHNAREDDY, AGE:
35. YEARS, OCC: BUSINESS & AGRIL, R/AT: H.NO.5-4-57, ALKAPURI, HYDERABAD, ANDHRA PRADESH-500001.
4. CH. MANOHAR REDDY S/O. LATE SAIREDDY, AGE:
40. YEARS, OCC: BUSINESS & AGRIL. R/AT: H.NO.4-13-8, VANASTHALIPURAM, HYDERABAD (A.P.)-500661.
5. Y.RAVINDRAREDDY S/O KRISHNAREDDY, AGE:
35. YEARS, OCC: BUSINESS & AGRIL, R/O: H.NO.5-4-57, ALKAPURI, HYDERABAD (A.P.)-500001.
6. B.SRINIVASREDDY S/O KRISHNAREDDY, AGE:
43. YEARS, OCC: BUSINESS, R/O:
2. 3-94/C, SNEHAPURI COLONY, HYDERABAD (A.P.)-500001. ... APPELLANTS (BY SRI.SHIVAKUMAR KALLOOR, ADVOCATE) 2 AND:
1. RAMGOPAL S/O KANHAYALAL MALU SINCE DECEASED BY LRS. 1a) SMT. SUSHEELA DEVI W/O LATE RAMGOPAL MALU, AGE:
60. YEARS, OCC: BUSINESS, R/O: VIVEKANAND NAGAR, COURT ROAD TO MARKET ROAD, KALABURAGI. 1b) MADHUSUDHAN S/O LATE RAMGOPAL MALU, AGE:
38. YEARS, OCC: BUSINESS, R/O: VIVEKANAND NAGAR, COURT ROAD TO MARKET ROAD, KALABURAGI. ... RESPONDENTS (BY SRI. AMEET KUMAR DESHPANDE, ADV., FOR R1 (A & B) THIS RSA IS FILED UNDER SECTION100OF THE CODE OF CIVIL PROCEDURE, PRAYING TO (A) SET-ASIDE THE IMPUGNED
JUDGMENTAND DECREE DATED1109.2007 PASSED BY THE LEARNED PRINCIPAL CIVIL JUDGE (SR.DN.) GULBARGA IN R.A.NO.125/2007, AND (B) BE PLEASED TO RESTORE THE
JUDGMENTAND DECREE OF THE TRIAL COURT DATED1408.2007 PASSED BY THE LEARNED IIND ADDITIONAL CIVIL JUDGE (JR.DIVN.) GULBARGA, IN O.S.NO.344/2001 AND (C) BE PLEASED TO GRANT ANY OTHER RELIEF WHICH THIS HON'BLE COURT DEEMS FIT IN THE FACTS AND CIRCUMSTANCES OF THE CASE INCLUSIVE AN
ORDERAS TO EXEMPLARY COST, IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL BEING HEARD AND RESERVED FOR
JUDGMENT, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, THE COURT DELIVERED THE FOLLOWING:- 3
JUDGMENTThis Regular Second Appeal No.3119/2007 is filed by the appellants - defendants aggrieved by the judgment and decree dated 11.09.2007 passed in R.A.No.125/2007 by the learned Principal Civil Judge Senior Division at Kalaburagi (for short 'the First Appellate Court') setting aside the judgment and decree dated 14.08.2007 passed in O.S.No.344/2001 by the learned II Additional Civil Judge Junior Division, Gulbarga (hereinafter 'the Trial Court'). The Trial Court had dismissed the suit of the plaintiff for permanent injunction. The First Appellate Court while setting aside the judgment and decree of the Trial Court, decreed the suit. 02. The parties are referred by their original ranks before the Trial Court. 03. The suit schedule property as described in Para No.2 of the plaint is:
4. Premises bearing Corporation 1-19 situated behind KPTCL Office on the Court road, station area Gulbarga bounded on the:- East : Road leading to the Court West:
20. feet vide lane North: Government Road South: Lane and thereafter the House of Doctor Yelsingikar (hereinafter referred as 'suit property') 04. The brief case of the plaintiff: a) That the plaintiff is the owner in possession of the suit property which is surrounded on all sides by a compound wall. That the name of the plaintiff is entered in the Municipal records and he is paying property taxes to the Corporation. That there are some rooms in the premises which he has given on rent to his tenants namely, Ningappa, Ambawwa, Ramachandra, Ratnabai and Baburao, who are living in their respective portion. b) That one Mallikarjun s/o Shivalingappa Gandhigudi and Lalitabai w/o Vijayakumar had tried to interfere with the possession of the aforesaid tenants, resulting in said tenants filing a suit in O.S.No.745/1997 in 5 which an ex-parte order of temporary injunction was granted on 09.12.1997 which was in force till filing of the present suit. c) That the defendants without having any thing to do with the ownership or the possession of the suit property came to the aforesaid tenants of the plaintiff and asked them to vacate the suit schedule property and tried to take forcible possession which was resisted. d) That being apprehensive of defendants trying to take forcible possession of the suit property, he approached the Court seeking relief of permanent injunction against the defendants. 05. Brief case of the defendants: a) That the claim of plaintiff being the owner in possession of the suit property and his name having been entered into the revenue records and he inducting tenants into the rooms existing thereon is specifically denied. 6 b) That the suit of the plaintiff for bare injunction without seeking declaration of title and possession when he is neither in actual not constructive possession of the suit property was not maintainable. c) That suit property in fact consists of plot Nos.1, 2 and 3 having provisional CTS.No.12 and final CTS.No.1017 of Sheet No.104 of Block VIII bearing Corporation No.1-19 situated in Khadar Hussain Layout formed in 13 acres and 10 guntas of land in Sy.No.10 Doddapur in Gulbarga bounded on the:- East: Road leading to Court; West:
20. ft. wide lane; North: road; South: Nala and thereafter house of Sri. Yelsangikar. d) That the property as described in the written statement formed part of 13 acres 10 guntas of Doddapur Gulbarga, which belonged to one late Mohd. Khadar Hussain Sayeed. A layout known as Khadar Hussain Layout approved by the competent authority was formed in the said land. After his death, his son Retired Brg. Gulam Mohammed Sayeed had become 7 absolute owner of the suit property. That after his death in October 1992 his wife Dr. Banoo Tahira Sayeed, Mrs. Siraj Fatima and Mohammad Mujahid Sayeed became successor to the said property. That they sold different portions of the suit property in favour of each of the defendants under separate registered deeds of sale bearing Nos.4109-4114 on 09.10.2000 and the defendants were accordingly put in possession of each of the portion of the land sold under said deeds of sale. That the names of the defendants have been entered in the CTS records and the corporation records and they have paid the property taxes. e) That the plaintiff did not raise any objections for the mutation and when the defendants were put in possession. Defendants had requested Ningappa and others who were in some hutments on the suit property to vacate the same. Accordingly they had vacated and hand-over the vacant possession of their hutments to the defendants. 8 f) That the alleged vendors of the plaintiff were neither the owners nor were in possession of the suit property and even their predecessors in title were also not in possession of the suit property. The title documents if any are no-way related either to the suit property or any portion of the suit property in Khader Hussain Layout. Hence, the plaintiff did not get any right, title or interest much less possession over any portion of the suit property under any document. Hence, sought for dismissal of the suit with costs. 06. Based on the above pleadings the Trial Court framed the following issues: i) Whether the plaintiff proves that the he is in possession of the suit property. ii) Whether the plaintiff proves that the defendants are causing interference in his possession over the suit property. iii) Whether the plaintiff is entitled for the relief as sought for?. iv) What order or decree?.. 9
07. The plaintiff examined himself as PW.1 and three additional witness viz., Omprakash, Kottarbasayya and Madiwalappa as PWs.2, 3 and 4 respectively and exhibited 99 documents as Ex.P.1 to Ex.P.99. One R. Aruldas has been examined as DW.1 and Ningappa as DW.2 on behalf of the defendants and exhibited 123 documents as Exs.D.1 to Ex.D.123. 08. The Trial Court on appreciation of pleadings and evidence dismissed the above suit in O.S.No.344/2001 with costs by its judgment and decree dated 14.08.2007. Aggrieved by the same the plaintiff preferred a regular appeal before the First Appellate Court in R.A.No.125/2007. The First Appellate Court by its judgment and order dated 11.09.2007 allowed the said appeal with costs setting aside the judgment and decree passed by the Trial Court and consequently decreed the suit of the plaintiff. 09. Aggrieved by the aforesaid judgment and decree passed by the First Appellate Court in R.A.No.125/2007 the present Regular Second Appeal is filed by the defendants. 1 0 10. During the pendency of the appeal before this Court the original plaintiff is stated to have passed-away and his legal representatives being wife and son have been brought on record.
11. This Court while admitting the appeal by its order dated 19.08.2008 had formulated the following substantial question of law:
"Whether in the facts and circumstances of the case, the first appellate Court was justified in reversing the judgment and decree passed by the trial Court based on the evidence to which there was no foundation in the pleadings?.
12. The aforesaid appeal was taken up for hearing on 25.10.2021. At the time of hearing a memo was filed by the appellants/defendants seeking framing of additional substantial questions of law. This Court on consideration of material on record and assigning reasons by a separate order dated 11.11.2021 formulated the following additional substantial question of law; "Whether in the facts and circumstances of the case, the first appellate Court is justified in decreeing the suit for bare injunction when the defendants have specifically disputed the title/ownership of the plaintiff over the suit schedule property as well as its identity?."
1. 1 13. Heard Sri. Shivakumar Kalloor and Sri. Manvendra Reddy, the learned counsel for the appellants/ defendants and Sri. Ameet Kumar Deshande, the learned counsel for the respondent/plaintiff on the aforesaid substantial questions of law. Submission of learned counsel for the appellants/defendants:
14. Reiterating the grounds urged in the appeal memo, the learned counsel submits that: a) Though the plaintiff claims to be the absolute owner in possession of the suit property, he has not prima facie established his ownership and possession over the same. b) That the plaintiff has not pleaded anything with regard to the manner in which he acquired the ownership over the suit property. c) That the First Appellate Court relying upon the evidence produced by the plaintiff without there being any pleading, erred in reaching the conclusion contrary to settled principles of law. 1 2 d) That the First Appellate Court erred in decreeing the suit for injunction despite the obvious case of the plaintiff being out of possession of the suit property and claiming symbolic possession through the alleged tenants without even examining any such tenants resulting in miscarriage of justice, e) The defendants apart from denying the right, title, interest and possession of the plaintiff over the suit property have specifically set up title in themselves in respect of the suit property having acquired the same in terms of deeds of sale dated 09.10.2000. f) That the first appellate Court failed to appreciate and determine the dispute with regard to identity of the suit property though it had taken note of the contention of defendants that the suit property consists of plot Nos.1, 2 and 3 assigned with provisional CTS No.12, Final CTS No.1017, Sheet No.104 of Block No.VIII being corporation No.1-19 forming part of Survey No.10 of Daddapur village. g) That since there is a serious dispute with regard to the title and possession of the plaintiff over the suit property and the defendants claiming title and possession in themselves, the appellate Court ought not to have decreed the suit instead ought to have relegated the plaintiff to seek relief of declaration and separate possession. 1 3 h) That the appeal involves substantial questions of law raised above and the same need to be answered in favour of the defendants and hence seeks for allowing of the appeal. He relies upon the following judgments of the Apex Court in the case of: i. Veeranagouda Basavanagouda Hiregoudar and other vs. Umeshgouda and others (HCR2014KANT536 ii. Bengalore Develoopment Authority Vs. Bhagawandas Patel (HCR2017KANT391 iii. Anathaula Sudhakar vs. P.Buchireddy and others (AIR2008SC2033. iv. T.V.Ramakrishna Reddy vs. M.Mallappa and Another passed in Civil Appeal No.5577/2021 dated 07.09.2021. v. Jharkhand State Housing Board vs. Didar Singh and Another in Civil Appeal No.8241/2009 dated 09.10.2018.
15. Learned counsel for the appellants/defendants had filed an application in IA.1/2013 under Order 41 Rule 27 of CPC seeking production of two additional documents. 1 4 Submission of learned counsel for the respondent/plaintiff:
16. Submissions of learned counsel for the respondent/plaintiff are twofold. Firstly, with regard to formulating additional substantial question of law and secondly, the appeal not involving both substantial questions of law as framed on 19.08.2008 as well as on 11.1.2021.
17. With regard to formulation of additional substantial question of law on 11.11.2021 the learned counsel submits: a) That this Court could not have formulated the additional substantial question of law by reading the proviso to sub-section (5) of Section 100 of CPC in isolation and in a manner giving substantial powers to formulate such additional substantial question of law. 1 5 b) That the proviso to the main section cannot have the effect of expanding the scope of the main section. As, according to the learned counsel, sub-section (5) of Section 100 of CPC mandates that the appeal be heard on the substantial question of law formulated under sub-section (4) of Section 100 and the respondents right to dispute the involvement of such substantial question of law, cannot be taken away by formulating additional substantial question of law, having recourse to the proviso to sub-section (5). c) Relying upon the judgment of the Apex Court in the case of Mehboob - Ur - Rehman (dead) through LRs vs. Ahsanul Ghani reported AIR2019SC1178and referring to the observation of the Apex Court para No.21 thereto which is extracted hereunder:
1. 6
"21. We are clear of the view that the proviso to sub-section (5) of Section 100 of CPC is not intended to annul the other requirement of section 100 and it cannot be laid down as a matter of rule that irrespective of the question/s formulated, hearing of the second appeal is open for any other substantial question of law, even if not formulated earlier. The said proviso by its very nature put into operation only in exceptional cases and for strong and convincing reason to be specifically recorded by the High Court..... :
" he submits that the present appeal can be heard only on the substantial question of law which was framed by this Court by its earlier order dated 19.08.2008 and not on the substantial question of law framed on 11.11.2021.
18. He also relies upon the judgment of the Apex Court in the case of Gurudev Kour and Other vs. Kaki and Others reported in AIR2006SC1975regarding jurisdiction of the High Court of interference under Section 100 of CPC only in a case where substantial questions of law are involved. 1 7 19. Alternatively, addressing the arguments on both, the substantial questions of law contending that the appeal does not involve such substantial questions of law, he submits that: a) The suit is one for bare injunction and there is no need or necessity for the plaintiff either to produce document of his title or prove the same. He submits that it is enough if the plaintiff establishes his lawful possession over the suit property. He further submits merely because there is a denial by the defendants regarding the title, plaintiff need not seek for relief of declaration. He relies upon the judgment of Madras Court in the case of A.L.V.R. Ct VEERAPPA CHETTIAR VS. ARUNACHALAM CHETTI AND ORS. reported in AIR1936MADRAS200 b) Referring to Ex.P1, the plaint in O.S.No.742/1997, which was filed by Ningappa and others against Mallikarjun and Lalitabai, he 1 8 submits that the averments made therein establishes the ownership and lawful possession of the plaintiff. c) Referring to Ex.P.97, a sale deed dated 07.08.1932 which according to the plaintiff was executed by Khadar Hussain in favour of different purchasers one of them being one Ameenabi (the purported predecessor in title), he submits that by the said deed of sale, Khadar Hussain had sold the entire property in Survey No.10 and had retained nothing for the defendants to claim that their vendors had acquired the right by way of inheritance after demise of Khadar Hussain. Thus, he submits the plaintiffs had prima facie proved his title. d) That the aforesaid Ameenabai had sold her portion of the property to one Murugappa. In a family partition the said property had come to the share of one Shivalingappa. That the said Shivalingappa had sold two portions of the 1 9 properties under the deeds of sale dated 25.10.1972, 17.01.1972 in favour of the plaintiff. That said Shivalingappa had sold another portion in favour one Venkatramalu under deed of sale dated 13.12.1971, who in turn had sold the same to the plaintiff on 19.11.1983. He further submits that Shivalingappa had further sold another portion of the property in favour of one Siddaramappa Gadalegum and who in turn sold it to one Shankar Nangagi on 15.10.1973 and from whom plaintiff purchased the said portion on 19.06.2004. e) Referring to Exs.P24, 27, 23 and 26, which are the agreements of sale dated 18.04.1992 and plaint in O.S.No.122/1992 and OS.No.867/1992, he submits that the plaintiff acquired two more portions each measuring about 16x68. Thus, learned counsel submits that under the aforesaid six transactions, plaintiff acquired right, title and interest over the 2 0 suit schedule property. The said six portions formed one contiguous plot, which is the plaint schedule property. f) Referring to Ex.P12, which is an order dated 13.08.1999 on an application in the nature of compromise passed in regular appeals R.A.Nos.35/1988, 36/1988, 37/1988, 38/1988 arising out of suits in O.S.Nos.304/1971, 160/1972, 161/1972 and 162/1972 corresponding to Exs.P90 to P94, learned counsel submits that the said compromise was entered into between the plaintiff, Mallikarjun, Vijaykumar and Mahadevi and that the said documents would establish their right, title and interest over the suit property. g) That since the suit is one for bare injunction, the evidence adduced by him are in supplement to the pleadings made therein, as such there is no substantial question of law involved in the appeal as framed by this Court by its order dated 19.08.2008. 2 1 h) As regards additional substantial question of law he submits that in the reality there is no denial by the defendants either with regard to the title of the plaintiff over the suit property or with regard to its identity. He submits essentially all that the defendants are claiming is that the suit property consists of Plot Nos.1, 2 and 3 and bearing different provisional and final CTS numbers and that there is no dispute with regard to the boundaries. i) That no issue with regard to title or identity of the property had been framed by the Courts below, as such plaintiff cannot be faulted with for non production of his title documents. Therefore, such question cannot be taken up at this stage of the proceeding. He submits if there was a denial of title, the Courts Below ought to have called upon the plaintiff to prove the title. 2 2 j) Further he submits that since the defendants have set up an independent title over the suit property by referring the same with block number Nos.1, 2 and 3 with CTS numbers, it is for the defendants to establish the existence of said property as claimed in the written statement. As such, there is no denial of the title or of the identity. Therefore, he submits that second substantial question of law as formulated on 11.11.2021 also does not arise. k) At the end of the argument, learned counsel for the respondent/plaintiff filed an application under Order 41 Rule 27 of CPC in I.A.No.1/2021 seeking to produce 15 documents as additional evidence. The learned counsel for the plaintiff also relies upon the judgments in the case of: I. CORPORATION OF BENGALORE CITY VS. M. PAPAYYA (AIR1989SC1809 II. FAKHIRBAI BHAGAWANDAS AND ANOTHER VS. MANGALA HARIBAI AND ANOTHER (AIR1951BOMBAY380 2 3 III S. SUBRAMANYA VS. RAMASWAMY (AIR2019SC3056 IV. M/S PRIVATE EYE VS HIND HIGH VACCUM CO. PVT LTD. ( AIR2003KAR95 V. MAKHAN LAL BANGAL VS MANAS BHUNIA & ANR REPORTED IN (AIR2001SC490 VI. RAM RAMESHWARI DEVI & ORS VS. NIRMALA DEVI & ORS. REPORTED IN (AIR2011SC (CIVIL) 1776); VII. Uttaradi Math vs. Raghavendraswamy Math (AIR2018SC4796. Regarding formulation of additional substantial question of law:
20. Before adverting to the submission of the learned counsel for the respondent/plaintiff objecting formulation of additional substantial question of law, it is apposite to refer to the provisions of Section 100 of Civil Procedure Code which is extracted hereunder:
"100. Second Appeal.- (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall be to the High court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law, (2) An appeal may lie under this section from an appellate decree passed ex-parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. 2 4 (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question. Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it to satisfied that the case involves such question.
21. The aforesaid submissions of the learned counsel for the respondent/plaintiff objecting to formulating of substantial question of law, cannot be countenanced for the following reasons: a) A proviso must prima facie be read and considered in relation to the principal matter to which it is a proviso. It is not a separate or independent provision. The main roles of a proviso in legal drafting are (a) exclusionary, (b) qualifying and (c) clarificatory. In its exclusionary role, the proviso excludes something which would otherwise fall within 2 5 the part of the statutory provision. In its qualifying role, the proviso qualifies, or attaches conditions to, the proposition laid down in the main enactment. In its clarificatory role, the proviso clarifies some doubt or ambiguity, which might possibly arise from the apparently elastic phraseology on main part. (P.M.Bhakshi, Interpretation of Statues II Addition, Page
236) b) The apex court in the case of Commissioner Income Tax Kerala vs. P. Krishna Warrior (AIR1965SC59 has held that clear language of substantive provision as well as the proviso may establish that the proviso is not a mere qualifying clause of the main provision, but, is in itself, a substantive provision. c) A plain reading of proviso to sub-section (5) of Section 100 makes it clear, that provision of sub-section (5) shall not be deemed to 'take away' or 'abridge' the power of the court to 2 6 hear 'for the reasons to be recorded', the appeal on any other substantial question of law, if not formulated by it, if it is satisfied that the case involves such question. d) Thus the first contention of the learned counsel for the plaintiff that the proviso cannot be read in isolation and cannot be taken as recourse to frame additional substantial question of law does not stand for scrutiny of law. e) As regards reference to the judgment of the Apex Court in the case of Mehaboob-UR- Rehaman (Supra), the Hon'ble Apex Court has in fact clarified the powers of the High Court to frame additional substantial question of law 'in exceptional cases and for strong and convincing reasons'. It is equally settled law that the power of the High Court to formulate additional substantial question of law is not taken away if it is satisfied that the case involves such question. 2 7 f). The Apex Court in the case of VIJAY ARJUN AND ORS VS. NANA LAXMAN TAPKIRE AND ORS (2018) 6 SCC727has at para 20 held as under:
"20. Second, the high court though had jurisdiction to frame additional question(s)" by taking recourse to proviso to sub Section (5) of Section 100 of the Code but it was subject to fulfilling three conditions, first "such questions should arise in the appeal", second " assigned the reasons for framing additional question" and third "frame the question at the time of hearing the appeal". g) In the instant case at the beginning of the hearing this Court after going through the rival pleadings, contents of the judgment of the trial Court and of the first appellate Court and also on going through the substantial questions of law as stated by the appellant in the appeal memorandum, in the presence of the learned counsel for the parties and after being satisfied and for the reasons assigned thereon, by a separate order dated 11.11.2021 formulated additional substantial question of law, which is well within its power contained in Section 100 2 8 of CPC. For the aforesaid reasons, the objection raised by the learned counsel for the respondent/plaintiff on the power of Court to formulate the additional substantial question of law is rejected. Regarding applications filed by the defendants and the plaintiff seeking production of additional documents.
22. The application in I.A.No.1/2013 has been filed by the appellants/defendants for production of additional documents namely; a) copy of plan showing proposed additional plot in Sy.No.10 of Daddapur belonging to Sri Khader Hussain Syeed Vakil issued by the Member, Town Plan Urban Development Authority, Gulbarga. b) certified copy of judgment and decree dated 17/01/2012 passed in RFA.No.1374/2005 C/w. RSA.No.265/2008 passed by the Co-ordinate Bench of this Court.
23. Learned counsel for the appellants/defendants in support of his argument on IA.No.1/2013 submits that the documents are in the nature of public documents and a judicial notice can be taken on the same. That the said 2 9 documents are required for clarification of all issues and for proper adjudication of the matter. That the said documents not being in possession of the defendants had to be obtained subsequently. Therefore, there was delay in production of documents.
24. Similarly, after conclusion of arguments, the learned counsel for the plaintiff filed an application in I.A.No.1/2021 dated 15/11/2021 seeking production of 15 documents namely:
1. English translation copy of Urdu sale deed executed by Mohammed Khader Hussain in favour of six persons dated 07/08/1932 along with a sketch.
2. English translation of Urdu sale deed dated 25/02/1943 along with copy of Urdu Sale deed (stated to have been executed by Aminabi in favour of Murgeppa Gandhigudi dated 1352 along with English translation; 3. Copy of decree passed in suit in OS.No.4/1 of 1359 along with English translation of the same; 4. Copy of the deed of sale executed by Shivalingappa Gandigudi in favour of Venkataramulu in respect of a portion of property bearing No.1-19 dated 13/12/1971; 5. Copy of deed of sale executed by Shivalingappa Gandigudi in favour of Ramgopal Malu on 17/01/1972 in respect of portion of the property bearing N.1-19; 3 0 6. Copy of deed of sale executed by Shivalingappa Gandhigudi in favour of Ramgopal Malu on 25/10/1971 in respect of portion of the property bearing No.1-19; 7. Copy of sale deed executed by Sidramappa Gadlegaon in favour of Shankar Nandige in respect of a portion of property bearing No.1-19 dated 15/10/1973; 8. Copy of sale deed executed by Venkataramulu in favour of Ramgopal dated 19/11/1983 in respect of a portion of property bearing No.1-19; 9. Copy of the sale deed executed by Shankar Nandige in favour of Ramgopal Malu dated 19/06/2004 in respect of a portion of property bearing No.1019. 10.Copy of the sale deed executed by Vijayakumar S/o Shivalingappa Gandigudi through Court Commissioner in favour of Ramgopal Malu dated 20/05/2010 in respect of a portion of property bearing Corporation No.1-19; 11.Certified copy of encumbrance certificate regarding property bearing CorporationNo.1-19 from 1965 to 2003 showing sale deed transaction in favour of Ramgopal and his predecessor; 12.Mutation order of property bearing Corporation No.1-19, changing the khata from Vijayakumar Gandigudi to Ramgopal dated 18/04/2000; 13.Khatha extract of property bearing Corporation No.1-19 based on order dated 17/04/2000 in favour of Ramgopal; 14.Mutation order of property bearing Corporation No.1-19 transferred from Ramgopal in favour of his LR dated 29/09/2015; 15.Khata, tax paid assessment of property bearing Corporation No.1-19 from 2001 till 2020. 3 1 25. The learned counsel for the appellants/defendants filed detailed objections to the said application.
26. Reiterating the contents of the affidavit of one Madhusudhan S/o deceased original plaintiff (who is brought on record as respondent No.3) accompanying the said application, the learned counsel for the respondent/plaintiff submitted that: a. The said additional documents have become necessary in view of formulation of additional question of law and that earlier there was no such issue framed with regard title to the property of the plaintiff. That the said documents are necessary to establish that the plaintiff has title to the property and has lawful possession over the same. b. That by virtue of aforesaid documents the entire suit property as described in para-2 of the plaint was purchased by the plaintiff. That except sale deeds of the year 2004 and 2010, the earlier sale deeds were in several 3 2 litigations which had cropped up between the plaintiff and his predecessors in title. That the sale deeds of the 2004 and 2010 have come into existence during pendency of the present suit. c. That even the khatha extract issued by City Corporation, Gulbarga from the year 2001- 2020 is in the name of the plaintiff and mutation of the names of his legal representatives have been made during the pendency of the proceedings. d. These documents could not be produced all these days in view of the fact that the said documents were already referred in several litigations and copies of which were already produced. Some of the documents have come into existence after the suit and during the pendency of the present appeal. Hence, the delay in filing the documents. 3 3 27. Opposing the production of the above documents at this belated stage the learned counsel for the defendants submitted:- a) That since the plaintiff had filed the suit on the ground of he being the owner in possession of the property and his name was entered into the revenue records and since in the written statement, the defendants have specifically disputed the title and possession of the plaintiff over the suit property, the plaintiff was duty bound to establish this fact before the Trial Court. b) That even during the cross examination the specific questions were asked to the plaintiff - PW.1 regarding non production of documents to which he has categorically admitted that he has not produced the said documents. Detail cross examination has already been conducted with regard to the documents now sought to be produced to which the PW.1 has pleaded ignorance. That no explanation is given for non production of the documents till date. Hence, sought for dismissal of the application. 3 4 28. The law with regard to production of additional documents under Order 41 Rule 27 CPC, has been dealt with by the Apex Court in the case of UNION OF INDIA VS. IBRAHIM UDDIN & ANR. reported in 2012 AIAR (Civil) 728, wherein at paragraphs 25, 26, 28 and 38 has held as under:
"25. The general principle is that the Appellate Court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order XLI Rule 27 CPC enables the Appellate Court to take additional evidence in exceptional circumstances. The Appellate Court may permit additional evidence only and only if the conditions laid down in this rule are found to exist. The parties are not entitled, as of right to the admission of such evidence. Thus, provision does not apply, when on the basis of evidence on record, the Appellate Court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the Limitation specified in the rule itself.
26. The Appellate Court should not, ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. Similarly, wherein a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the Court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment". 27.....
28. It is not the business of the Appellate Court to supplement the evidence adduced by one of the party or the other in the Lower Court. 3 5 Hence, in the absence of satisfactory reasons for the non-production of evidence in the Trial Court, additional evidence should not be admitted in appeal as a party guilty of remissness in the Lower Court is not entitled to the indulgence of being allowed to give further evidence under this rule. So a party who had ample opportunity to produce certain evidence in the Lower Court but failed to do so or elected not to do so, cannot have it admitted in appeal. ................... .................
38. An application under Order XLI Rule 27 CPC is to be considered at the stage of hearing of the appeal. The admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the Appellate Court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. The true test, therefore is, whether the Appellate Court is able to pronounce judgment on the material before it without taking into consideration the additional evidence sought to be adduced. Such action would arise only if on examining the evidence as it stands the Court comes to the conclusion that some inherent lacuna or defect becomes apparent to the Court.
29. In the light of the above legal principles, the question whether the additional documents sought to be produced by the parties are required or not for the purpose of pronouncement of judgment will be considered while adverting to the substantial questions of law arising in this appeal as under:- 3 6 R E A S O N S30 Apex Court in the case of Kondiba Dagadu Kadam (AIR1999SC2213 has held that in a second appeal under Section 100 of CPC, the High Court cannot substitute its opinion for that of the First Appellate Court, unless it finds that the conclusion drawn by the Lower Court were erroneous being i) Contrary to the mandatory provisions of applicable law; or ii)Contrary to the law as pronounced by the Apex Court; or iii)Based on inadmissible evidence or no evidence. It is further observed that if the First Appellate Court has exercised its duties and discretion in a judicial manner its decision cannot be recorded as suffering from an error either of law or of the procedure requiring inference in second appeal. It also observed that the Trial Court could have decided different view is not a question of law justifying law interference in second appeal.
31. In the light of the above decision of the Apex Court, the substantial questions of law framed on 12.08.2008 and 11.11.2021 are to be determined. 3 7 Regarding first substantial question of law:
32. The case of the plaintiff as pleaded in paragraph No.3 of the plaint is that he is the owner in possession of the suit property which is surrounded by a compound wall on all the sides and that his name is entered in Municipal records and that he is paying property taxes with the Corporation. That there are some rooms in the suit property, which are given on rent by the plaintiff to one Ningappa, Ambawwa, Ramchandra, Ratnabai and Baburao. That the defendants without having any right had illegally interfered with the possession of the plaintiff through aforesaid tenants over the suit property. Thus, the plaintiff approached the Trial Court seeking relief of injunction that he is the absolute owner of the suit property.
33. The plaintiff has however not pleaded specifically the mode and manner in which he acquired the suit property. 3 8 34. The plaintiff in support of his case, has produced as many as 99 documents, all the 99 documents are in the nature of purported sale deeds and proceedings before the various Courts between the persons whom plaintiff claims to be his predecessors-in-title.
35. As noted above, plaintiff without specifically pleading the manner of acquisition of the suit property by him however, during the cross-examination and now by way of application for production of additional documents is claiming to have purchased suit property in various portions under different deeds of sale namely; a. Deed of sale dated 17/01/1972 executed by Shivalingappa Gandigudi in favour of the plaintiff, b. Sale of deed dated 25/10/1971 executed by Shivalingappa Gandigudi in favour of the plaintiff c. sale deed dated 19/11/1983 executed by Venkataramalu in favour of plaintiff; and d. Sale deed dated 19/06/2004 executed by Shankar Nandige in favour of plaintiff and 3 9 e. Sale deed executed by Vijaykumar through Court Commissioner in favour of plaintiff on 20/05/2010.
36. These documents would reveal that the plaintiff claims to have purchased different portions of the property under aforesaid deeds of sale between the year 1972 to 2010. The plaintiff further claims that the khatha of the property was registered in his name on 18.04.2000.
37. The submission of the learned counsel for the respondent/plaintiff that since the issue regarding title of the plaintiff was not framed by the Courts below, no fault can be found with the plaintiff for non production of title deeds which he is now seeking to produce as additional documents, cannot be countenanced. For in a suit for bare injunction, based on title plaintiff needs to incidentally prima facie show his title more so when he claims that the defendant without having any right, title and interest is attempting to invade/threaten his possession over the property. In any case, whether there is issue framed or not whether the plaintiff is called upon to produce the title 4 0 documents or not, when the plaintiff is seeking injunction claiming to be the owner of the property in possession and when the defendant apart from denying the title of the plaintiff is setting up title in himself as in the present case, the plaintiff ought to have produced his title of documents.
38. It is relevant to note at this juncture that though the plaintiff at Para 2 of the plaint given the number of the suit property as Corporation No.1-19 and has given the boundaries thereof has however not given the measurement of the same. In the cross examination, the plaintiff has deposed as follows (in Kannada which is translated in English):
"That he has not mentioned the measurement of the property in the plaint, but has given boundaries. He has not produced City survey records with regard to the measurement of the property ....... The measurement of the suit property is about 22000 sq. ft.. He has 5 sale deeds in respect of the suit properties ...... Again he says that he has 4 sale deeds and 2 agreements. That he purchased under different deeds of sale from Shivalinga Gandigudi and another 2 deeds of sale from Venkataram, Shankar Nandigi and that he has filed 2 cases for specific performance against Vijayakumar Gandhigudi and said cases are pending in OS.No.867/1992 and in the said suit he has given measurement of the property as 157 x 45 4 1 and East-West 157X167. That his name is not mentioned in the City survey record based on the sale deeds. That he has got his name entered in the Corporation based on court decree, but he is not able to say measurement. He admits in the court decree there is no mention of 22,000 sq. ft....... He also admits that he has not produced any sale deeds in the present suit. He denies that not mentioned the manner of acquisition of ownership of the suit property. That he purchased 2 plots from Shivalingappa Gandigudi, another plot from Shankar and another plot from Venkataramppa".
39. As regards the revenue entries, he admits; "That he filed 6 Writ Petitions challenging the registration of names of the defendants in the Municipal Corporation and in the 6 writ Petitions he has shown 40-111 sq. ft under sale deeds, out of 6 sale deeds, 4 sale deeds were executed. That all the 6 Writ Petitions were dismissed".
40. It is well settled that in the absence of pleading, evidence if any produced by the parties cannot be considered. It is equally well settled that no party shall be permitted to travel beyond the pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the affected party to know the case suggested in order to have a fair trial. It is imperative that the party should state essential material facts so that the 4 2 other party may not be taken by surprise. (Ram Sarup Gupta by LRs. vs. Bishun Narain Inter College and Others reported in AIR1987SC1242. It is also equally well settled that plaintiff should not be allowed to succeed on a case different from what has made out in his plaint.
41. In the instant case there is variance between the pleading and proof/evidence adduced by the plaintiff. Though the plaintiff claims to be the owner in possession of the suit property, he had produced evidence regarding the title and possession of his purported predecessor in title. In the cross examination, he deposes regarding acquiring his title in terms of four deeds of sale and two agreements and two deeds of sale subsequent to filing of the suit, without even giving the measurement of the suit property. It is one thing to plead that he is the owner in possession of the property and another thing to adduce evidence with regard to the title and possession of his purported predecessor in title in respect of the disputed property. 4 3 42. As noted above, though the plaintiff has pleaded ownership over the property, he has not pleaded the manner in which he acquired the suit property. That in the evidence he has narrated the manner in which the suit property was alienated successfully right from the time of Khadar Hussain Syeed to Ameenabee, from Ammenabee to Shivalinga Gandigudi, from Shivalinga Gandigudi to Shankar, from Shankar to Venkataramulu and from Venkataramulu to Vijayakumar and then to the plaintiff under deeds of sale ranging from 1937 right up to 2010. The plaintiff ought to have pleaded these essential pleading in order to establish his ownership over the suit property though incidentally the same ought to have been adjudicated for suit for bare injunction. This was the requirement as the plaintiff is basing his claim as owner of the property. The plaintiff without pleading the manner of acquisition of the property had produced various documents which are not in consonance with the pleadings. The trial court had rightly dismissed the suit. Though the plaintiff has claimed ownership of the suit property has not proved his lawful possession over the same as on the date of suit 4 4 with valid documents. The aforesaid findings of the trial court stands fortified by the fact that the plaintiff is now seeking to produce additional documents nature of all deeds of sale which he had not produced before the trial court despite a specific dispute and denial raised by the defendant in the written statement as well as in the cross examination.
43. It is only now by way of application under Order 41 Rule 27 of CPC filed after completion of the arguments on the substantial questions of law formulated in the present appeal, the plaintiff is attempting to plead and prove the manner of his acquiring the property. Even then, admittedly, he acquires certain portions of the property on 20.05.2010 that is subsequent to filing of the suit and during pendency of the present appeal and his name having been entered into in the revenue records only on 18.04.2000. In the facts and circumstances this case, it was all the more important for plaintiff to have specifically pleaded the basis of his claim of ownership and possession over the suit property to prove his lawful possession notwithstanding the suit is one for bare injunction. The first 4 5 appellate Court was therefore in error in reversing the judgment and decree of the trial Court based on the evidence to which there was no foundational pleading. The substantial question of law is thus answered accordingly. Regarding additional substantial questions of law:
44. Apex Court in the case of Anathaula Sudhakar (supra) at paragraph Nos.11, 12, 13, 14 and 17 has laid down the position with regard to suits for prohibitory injunction relating to the immovable property which is extracted hereunder. “11. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly. Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner. Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession. 4 6 Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.
12. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff’s title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person’s title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiffs title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff’s title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title. 4 7 13. In a suit for permanent injunction to restrain the defendant from interfering with plaintiff’s possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and defendant tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may prove physical or lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Even in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue in such a suit, though it may arise incidentally or collaterally.
14. But what if the property is a vacant site, which is not physically possessed, used or enjoyed?. In such cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was at issue, the court should not decide the issue of title in a suit for injunction. The proper course is to relegate the plaintiff to the remedy of a full-fledged suit for declaration and consequential reliefs. 4 8 17. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under : (a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. 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 plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter. (b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession. (c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)].. Where the averments regarding title are absent in a plaint and 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. 4 9 (d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for 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. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.
45. From the pleadings and material evidence and more particularly in the written statement filed by the defendant specifically denying right, title, possession of the plaintiff over the suit property, it was incumbent upon the plaintiff to have prima facie established his title over the property.
46. It is yet again relevant to note that along with application for additional documents produced by the plaintiff apart from four deeds of sale which apparently came into existence prior to filing of the suit, two deeds of sale have come into existence, admittedly after filing of the 5 0 suit i.e., on 19.06.2004 and 20.05.2010 The present suit is of the year 2007. Thus, as on the date of the suit, the plaintiff could never have claimed to be the owner of the suit property, as admittedly he did not have deeds of sale in his name to the entire property. Besides, no evidence has been produced by the plaintiff to show either his name or the name of his vendors or predecessors in title having been entered in the revenue records.
47. As observed by the Apex Court in the case of Anathaula Sudhakar (supra) a cloud is said to raise over the title of a person, when some apparent defect in his title to a property or when some prima facie right of a third party over it is made out or shown.
48. The defendants on the other hand at paragraph 10 of the written statement have apart from denying the title of the plaintiff over the suit property have also claimed that the suit property consists of plot Nos.1, 2 and 3 bearing No.104 in Block No.VIII and Corporation No.1-19 and they have been purchased the same under separate registered deeds of sale bearing No.4109-4114 executed on 5 1 09/10/2000. In this regard they have produced deeds of sale and rectification of deeds as per Exs.D2, 3, 17, 18, 28, 29, 39, 40, 50, 51, 60 and 61. The defendants have also produced revenue documents in the nature of extract from the property register card, tax paid receipts and khatha extracts and encumbrance certificate and pahani as per Exs.D4 to 16, 19, 27, 30 to 38, 41 to 49, 52 to 59 respectively. Thus, in view of the documents apart from denying the title and possession of the plaintiff over the suit property, the defendants have set up a specific case of them owning the suit property in terms of the aforesaid deeds of sale and revenue records.
49. Regarding the judgments relied upon by the counsel for the plaintiff/respondent in the following cases are:-
1) GURUDEV KAUR (supra), deals with the scope and jurisdiction of the High Court for interference under Section 100 which is only in a case where substantial questions of law are involved and those questions have to be clearly formulated in the memorandum of appeal". 5 2 There cannot be any dispute with regard to the said principles of law. The substantial questions of law and additional substantial questions of law raised in this appeal have already been stated by the appellant in the memorandum of appeal. The same pertains to and arise out of pleadings, reasoning in the judgment on the grounds of appeal substantively effecting rights of the parties.
2) CORPORATION OF BANGALORE CITY (supra), "The said suit was filed for relief of decree of perpetual injunction restraining defendant from interfering with possession of plaintiff over land, based on title". The trial Court had decreed the suit and the first appellate had dismissed the said suit by examining the plaintiff's title and possession. While reversing the said decision of the first appellate Court, according to the Apex Court, the High Court had committed several serious errors of law. One such error was the confusion on the question whether the issue of title to the disputed property was involved in the suit or not. The Apex Court had found the said observation of the High Court to be discrepant. The Apex court therefore had set aside the decision of the High Court and had remitted the matter for fresh consideration. In the instant case, there is no confusion with regard to the plaintiff claiming ownership and possession over the suit property and the defendants apart from denying the title 5 3 and possession of the plaintiff, setting up their title over the same. Therefore, the reliance made by the respondent/plaintiff on the aforesaid is of no avail.
3) FAKHIRBHAI BHAGWANDAS (supra), the Bombay High Court has held that "it is not necessary for the person claiming injunction to prove his title to the suit land. That it would suffice if he proves that he was in lawful possession of the same and his possession was invaded or threatened to be invaded by a person who had not title whatsoever".
4) A.L.V.R. Ct. VEERAPPA CHETTIAR VS. ANNACHALAM CHETTI AND ORS., AIR1936MADRAS200wherein it has been held that " the fact that question of title also may have to be incidentally, gone into in deciding whether an injunction can be given or not is not any justification for holding that the suit is for a declaration of title and for injunction. There can be no objection to the maintainability of a suit for only an injunction". In fact in the instant case, as already noted the defendants apart from denying ownership of the plaintiff over the suit property have also denied title over the property have also claimed ownership over the property with different number under registered deeds of sale and revenue records with regard to the possession. Therefore, the said judgment is also of no avail to the plaintiff. 5 4
5) S.SUBRAMANIAN (supra), referring to the substantial question of law which was framed by the High Court the Apex Court had observed that the High Court had re-appreciated entire evidence on record as if the High Court was deciding the first appeal therefore, set aside the decision arrived at by the High Court."
In the instant case, there is no appreciation of evidence. The questions of law raised are only with regard to variance in pleadings and evidence and with regard to maintainability of suit for bare injunction in the light of serious dispute to the title and possession. Reference to the documents made hereinabove is for this limited purpose. No finding with regard to right, title and interest of the parties in the suit is given based on the documents. Therefore, the said judgment is of no avail.
6) M/S PRIVATE EYE (Supra), wherein this Court had held that dismissal of a suit without framing appropriate issues was not justified.
7) In MAKHAN LAL BANGAL(supra), the Apex Court dealing with important stage of framing of issues, in an election petition had held the real dispute between the parties is determined, the area of conflict is narrowed and concave mirror held by the Court reflecting the pleadings of parties pin points into issues the disputes on which two sides differ and 5 5
8) RAM RAMESHWARI DEVI (supra) dealing with regard to framing of issue under Order 14 R.1, the Apex Court has held that " framing of issue is important stage in the civil litigation and it is pointed out of the court, due care, caution, diligence and attention must be bestowed by learned Judge while framing of issues". The trial court in the said case despite determination of the question of title by the High Court and Special leave petition against the judgment had been dismissed by the Court. The trial court had framed an issue which had been finally determined its under said circumstance, the Court had has held that there was non application of mind by the Trial Court in framing issues". There cannot be any dispute with regard to the aforesaid legal principles on framing of issues. It is equally settled law that non-framing of issue is not fatal unless it causes serious prejudice to the party. Further, when the parties are aware about the issues in controversy and are also aware as to the requirement of their producing evidence in support of their case and being fully aware of the same go into the trial, there cannot be any prejudice. In the instant case, the plaintiff who is seeking equitable relief of injunction on the basis of he being the owner in possession of the suit property is expected to furnish all necessary evidence to establish his lawful possession which invariably requires into 5 6 furnish his documents of title. This would be in discharge of his burden on issue No.1 framed by the Trial Court.
50. It is necessary to note at this juncture that the Regular Appeal was filed on 20/08/2007 and the same has been disposed by the First Appellate Court on 01/09/2007 i.e. just within a period of 20 days. The First Appellate Court though had taken note of the pleadings more particularly with regard to the denying of title of the plaintiff over the suit property by the defendants and also specific pleadings of the plaintiff that the suit property consisting of PWs.1, 2 and 3 giving raise to the identity of the property has not adverted to the said aspect of the matter. The First Appellate Court at paragraph No.13 of the judgment has also taken note of the manner of casting issue Nos.1 and 2 and has also observed that "even both the parties to the appeal did not challenge the correctness otherwise of the framing of the above 2 issues" has gone on to state that the Court below has rightly framed these 2 issues. The First Appellate Court has accepted the case of the plaintiff that he is in lawful possession of the property through his tenants, 5 7 even though admittedly plaintiff had not acquired the title to the entire suit property as on the date of filing of the suit. The First Appellate Court has not taken into consideration though the plaintiff is claiming possession has not examined any tenants as witness to establish his possession. On the contrary, the defendants had examined one Ningappa as DW.2, whom the plaintiff claims to be his tenant. The said DW.2-Ningappa has deposed denying he being the tenant of plaintiff. He has also deposed that he was not aware of filing of the suit in OS.No.745/1997. That he had handed over the possession of the property to the defendants herein. The reasoning and conclusion arrived at by the First Appellate Court is contrary to law laid down by the Apex Court in the case of ANATHAULA (supra) which is followed in its subsequent judgment passed in Civil Appeal No.5577/2021 in the case of T.V. RAMAKRISHNA REDDY Vs. M. MALLAPPA AND ANR. disposed off on 07/09/2021 and also passed in Civil Appeal No.8241/2009 in the case of JHARKHAND STATE HOUSING BOARD Vs. DIDAR SINGH AND ANR. disposed off on 09/10/2018. 5 8 51. It is thus, settled law that it is not necessary for the plaintiff to seek the relief of declaration in all those cases where his title is denied by the defendant. However, when defendant raises a genuine dispute with regard to title and when he sets up the title in himself which raises cloud over the title of the plaintiff then necessarily in those circumstances the plaintiff cannot maintain the suit for bare injunction. The plaintiff will have to seek comprehensive relief in the nature of declaration and possession of his title in accordance with law.
52. Thus, in the light of law laid down by the Apex Court in the case of Anathaula Sudhakar (supra) and in the facts and circumstances of the case, the suit of the plaintiff for bare injunction is not maintainable and the First Appellate Court could not have decreed the suit of the plaintiff, when the defendants apart from denying the title and possession of the plaintiff over the suit property had set-up the title in themselves. The additional substantial question of law is answered accordingly. 5 9 53. For the aforesaid reasoning and analysis and in the scope of the determination of this appeal the additional documents sought to be produced by the defendant as well as the plaintiff under the facts and circumstances of the case are not required for pronouncing the judgment on substantial questions of law involved in the matter. As such, I.A.1/2013 and I.A.1/2021 deserve to be rejected.
54. It is made clear that nothing stated or observed in this judgment shall be construed as an expression of any opinion of this Court regarding the title either of the plaintiff or of the defendants in respect of the suit property. With the aforesaid observation, the following.
ORDERa) The Regular Second Appeal in RSA.No.3119/2007 is allowed. b) The judgment and decree dated 11/09/2007 passed in RA.No.125/2007 on the file of the Principal Civil Judge (Senior Division), at Gubarga is set aside and judgment and decree dated 14/08/2007 passed in OS.No.344/2001 on the file of the II Additional Civil Judge (Junior Division) at Gulbarga, is confirmed. 6 0 c) Consequently, the application in IA.No.1/2013 filed by the appellants/defendants and application in IA.No.1/2021 filed by the plaintiff/respondent are dismissed. Sd/- JUDGE KJJ/Srt/Mkm