- 1 - HC-KAR NC: 2025:KHC:33008 RFA No. 2120 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF AUGUST, 2025 BEFORE THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA REGULAR FIRST APPEAL NO.2120 OF 2024 (INJ) BETWEEN: 1. SHRI. VENUGOPAL S/O LATE ANJINAPPA, AGED ABOUT 55 YEARS, R/A VADDARAPALYA, HORAMAVU AGARA, K.R. PURAM HOBLI, BENGALURU EAST TALUK, BENGALURU-560 083. 2. SHRI JAIRAJ S/O LATE ANJINAPPA, AGED ABOUT 50 YEARS, R/AT VADDARAPALYA, HORAMAVU AGARA, K.R. PURAM HOBLI, BENGALURU EAST TALUK, BENGALURU-560 083. 3. SHRI M. GOPALAPPA S/O LATE MUNISHAMAPPA, AGED ABOUT 73 YEARS, R/AT VADDARAPALYA, HORAMAVU AGARA, K.R. PURAM HOBLI, BENGALURU EAST TALUK, BENGALURU-560 083. 4. SHRI RAMACHANDRAPPA S/O LATE MUNISHAMAPPA, AGED ABOUT 63 YEARS, R/AT VADDARAPALYA, Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:33008 RFA No. 2120 of 2024 HORAMAVU AGARA, K.R. PURAM HOBLI, BENGALURU EAST TALUK, BENGALURU-560 083. …APPELLANTS (BY SRI V.B. SHIVA KUMAR, ADVOCATE) AND: 1. SHRI. C. SRINIVAS S/O LATE CHIKKAYELLAPPA, AGED ABOUT 63 YEARS, R/AT NO.67, VADDARAPALYA, HORAMAVU AGARA, K.R. PURAM HOBLI, BENGALURU EAST TALUK, BENGALURU-560 083. 2. SHRI. C. VENKATESH S/O LATE CHIKKAYELLAPPA, AGED ABOUT 55 YEARS, R/AT NO.67, VADDARAPALYA, HORAMAVU AGARA, K.R. PURAM HOBLI, BENGALURU EAST TALUK, BENGALURU-560 083. …RESPONDENTS (BY SRI PRASANNA KUMAR C.S., ADVOCATE FOR C/R-2) THIS RFA IS FILED UNDER SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 16.07.2024 PASSED IN O.S.NO.1771/2019 ON THE FILE OF THE XLI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, DISMISSING THE SUIT FOR INJUNCTION. THIS APPEAL COMING ON FOR ORDER, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS. JUSTICE K.S. HEMALEKHA - 3 - HC-KAR NC: 2025:KHC:33008 RFA No. 2120 of 2024 ORAL JUDGMENT The present appeal is preferred by the plaintiffs assailing the judgment and decree dated 16.07.2024 in O.S. No.1771/2019 on the file of XLI Additional City Civil and Sessions Judge, Bengaluru (CCH-42) ('Trial Court' for short). By the judgment and decree, the Trial Court dismissed the suit for permanent injunction. 2. Brief facts: 2.1 The family genealogical tree is as under: Munivenkatappa (Original Propositus) Munishamappa Muniyamma @ Papamma Anjinappa Gopalappa M.Ramachandrappa (P-3) (P-4) Venugopal Sairaj (P-1) (P-2) Srinivas Venatesh (D-1) (D-2) - 4 - HC-KAR NC: 2025:KHC:33008 RFA No. 2120 of 2024 2.2 The case of the plaintiffs is that they are the owners in possession of the land bearing Sy. No.108/6 measuring 1 acre 17 ¾ guntas situated at Horamavu Agara Village, K.R. Puram Hobli, Bengaluru. According to the plaintiffs, they acquired the titles through their ancestor Munivenkatappa under a partition deed dated 06.08.1956 and they claimed under succession. It is the claim of the plaintiffs that the defendants have encroached upon and constructed on a portion of the property owned and possessed by the plaintiffs. 2.3 The case of the defendants is that the plaintiffs' family has already sold most portions of Sy. No.108/6 and only around 30 guntas remained, which were sold under GPA and agreement in favour of defendant No.2 and others. The defendants produced the sale deeds, partition deed, tax paid receipts, claiming lawful possession of the sites formed in the land bearing Sy. No.108/6. - 5 - HC-KAR NC: 2025:KHC:33008 RFA No. 2120 of 2024 2.4 The Trial Court, upon consideration of the oral and documentary evidence, held that the plaintiffs have failed to prove lawful possession or exclusive ownership of the suit property bearing Sy. No.108/6 measuring 1 acre 17 ¾ guntas. The Trial Court observed that the documents relied on by the plaintiffs indicated joint possession and not exclusive possession of the plaintiffs. It was also observed that there is no sketch, survey report to identify the exact suit land. Further, the pleadings of the plaintiffs lacked clarity about which portion remained after the alienation. Further, the admission of PW.1 in his cross- examination showed that the defendants and third party purchasers were already in portions of the part of the suit property. The Court observed that the plaintiffs' possession itself is not established, and thus, the question of interference by the defendants did not arise. Since the plaintiffs could not establish identity and possession of the suit property, they are not entitled to permanent injunction, the Trial Court further observed that the - 6 - HC-KAR NC: 2025:KHC:33008 RFA No. 2120 of 2024 plaintiffs were aware of the sale deeds executed pursuant to GPA / agreement in favour of the defendants but did not take legal steps to challenge those sales and by the judgment and decree, dismissed the suit. 3. Heard the learned counsel for the appellants and learned counsel appearing for the respondents. 4. Contentions of the appellants: 4.1 Learned counsel for the appellants submits that the Trial Court was erred in dismissing the suit for permanent injunction without properly appreciating the documentary evidence produced by the plaintiffs, including encumbrance certificate, which according to the appellants, established their title and possession. 4.2 That the plaintiffs' had inherited the suit property from Munivenkatappa through partition and succession, and the land measuring 1 acre 17 ¾ guntas in Sy. No.108/6 is part of their ancestral holding. - 7 - HC-KAR NC: 2025:KHC:33008 RFA No. 2120 of 2024 4.3 The Trial Court wrongly held that there was no clarity or identity or existence of the suit property. It failed to appreciate that the boundaries were properly described in the plaint and that minor discrepancies in survey records cannot negate the plaintiffs' continuous possession. 4.4 It is submitted that the Trial Court also erred in relying heavily on the defendants' documents by ignoring the admission of the defendants in cross-examination regarding boundaries of property. The Court ought to have held that the plaintiffs were in lawful possession and there was an illegal interference by the defendants and the judgment and decree of the Trial Court warrants interference. 4.5 It is contended that without prejudice to the above contentions on merits, the appellants have also filed an application under Order XXIII Rule 1 CPC seeking withdrawal of the suit with liberty to file a fresh suit for - 8 - HC-KAR NC: 2025:KHC:33008 RFA No. 2120 of 2024 declaration. It is contended that while the plaintiffs originally claimed possession over 1 acre 17 ¾ guntas, in the course of the proceedings, it has become clear that after alienations by predecessors, only 16 guntas remained in their ownership and possession. 4.6 The suit was only for injunction, which is procedurally defective since the plaintiffs title and boundaries were disputed. Hence, properly framed suit for declaration of title and consequential relief in respect of 16 guntas is necessary. 4.7 The defect in the suit is a formal defect within the meaning of Order XXIII Rule 1 (3) CPC, and unless liberty is granted, the plaintiffs would be deprived of their substantive right to protect their property. Therefore, it is contended that, even if this Court is not inclined to interfere with the dismissal of the injunction suit, it is prayed that the withdrawal application be allowed and - 9 - HC-KAR NC: 2025:KHC:33008 RFA No. 2120 of 2024 liberty be reserved to institute a fresh declaratory suit confined to 16 guntas with proper sketch and boundaries. 5. Contentions of the respondents: 5.1 The Trial Court has rightly dismissed the suit for permanent injunction since the plaintiffs failed to establish the lawful possession of the suit schedule property. 5.2 The revenue documents relied on by the plaintiffs stood in the joint name of multiple persons and did not show exclusive title or possession of the plaintiffs. 5.3 The plaintiffs have failed to produce any survey sketch or any document to identify the alleged 1 acre 17 ¾ guntas, without clear identity of the land, no injunction can be granted under the law. 5.4 On the contrary, the defendants produced registered documents, which established their possession over portion of Sy. No.108/6, including 30 and 2 guntas forming property No.202. - 10 - HC-KAR NC: 2025:KHC:33008 RFA No. 2120 of 2024 5.5 The application for withdrawal with liberty under Order XXIII Rule 1 CPC is not maintainable. 5.6 The plaintiffs cannot use the withdrawal mechanism to reframe their case after having failed to establish the possession in the Trial Court. 5.7 The plaintiffs had ample opportunity in the original suit to produce the proper documents to seek amendment if required. Having failed, they cannot now seek liberty to file a fresh suit to fill up evidentiary gaps. 5.8 The claim of 16 guntas in the application seeking withdrawal is inconsistent with their original case. 5.9 Granting liberty would amount to encouraging piecemeal litigation and harassment of defendants, which is against the principle of finality. 5.10 The Trial Court rightly refused to grant permanent injunction and the same does not warrant any interference. - 11 - HC-KAR NC: 2025:KHC:33008 RFA No. 2120 of 2024 6. Having heard the learned counsel on both sides, the points that arise for consideration are: “i. Whether the Trial Court was justified in dismissing the suit for permanent injunction filed by the plaintiffs in respect of Sy. No.108/6 measuring 1 acre 17 ¾ guntas? ii. Whether the application filed by the appellants under Order XXIII Rule 1 CPC seeking withdrawal of the suit with liberty to file a fresh declaratory suit in respect of 16 guntas is liable to be allowed?” 7. Point No.i The Trial Court recorded that the plaintiffs have failed to establish lawful possession and enjoyment of the suit property, on re-appreciating the entire oral and documentary evidence, this Court finds that the documents produced by the plaintiffs, namely, Ex.P.6-RTC extracts of suit property, Exs.P.7 to 9-encumbrance certificates, Ex.P.18-RTC extract of Sy. No.108/6 and Exs.P.25 to 31-RTC extracts did not show exclusive title of the plaintiffs but revealed joint ownership with other persons. The plaintiffs did not produce any sketch or any - 12 - HC-KAR NC: 2025:KHC:33008 RFA No. 2120 of 2024 material to establish the exact identity and existence of the alleged 1 acre 17 ¾ guntas. On the other hand, the defendants demonstrated that the portions of Sy. No. 108/6 had already been alienated and the defendants and third party purchasers are in possession of the sites. In a suit for permanent injunction, the plaintiffs have to establish by leading oral and documentary evidence that they are in lawful possession and enjoyment of the scheduled property. Having failed to produce any cogent evidence, the Trial Court rightly held that the plaintiffs had failed to prove possession over the suit schedule property and were not entitled to injunction. Accordingly, point No.i is answered. 8. Point No.ii The appellants had filed an application under Order XXIII Rule 1 CPC seeking permission to withdraw the suit with liberty to file a fresh suit restricted to 16 guntas in Sy. No.108/6, it is well settled law that liberty under Order 23 Rule 1 (3) CPC can be granted only where: - 13 - HC-KAR NC: 2025:KHC:33008 RFA No. 2120 of 2024 i. The suit suffers from a formal defect; or ii. There exists sufficient grounds. 9. In the instant case, the defect is not formal, the plaintiffs initially claimed possession of 1 acre 17 ¾ guntas, but now, by way of this application, admit that only 16 guntas remained in their possession. This is not a case of mis-description or procedural lapse but a fundamental change of stand. Allowing such withdrawal would enable the plaintiffs to re-agitate possession claims under a new guise after having failed to prove their case before the Trial Court. This Court cannot grant liberty to be misused as a device to fill up evidentiary gaps or to reframe the case after losing on merits. The withdrawal application is misconceived and is rejected and accordingly point No.ii is answered. 10. For the foregoing reasons, this Court pass the following: - 14 - HC-KAR NC: 2025:KHC:33008 RFA No. 2120 of 2024 ORDER i. Regular first appeal is hereby dismissed. ii. The judgment and decree dated 16.07.2024 in O.S .No.1771/2019 passed by XLI Additional City Civil and Sessions Judge, Bengaluru is hereby confirmed. iii. The application filed by the appellants under Order XXIII Rule 1 CPC seeking withdrawal of the suit with liberty to file a fresh suit is rejected. Sd/- _____________________ JUSTICE K.S. HEMALEKHA MBM List No.: 1 Sl No.: 43