- 1 - HC-KAR NC: 2025:KHC-D:14296 RSA No. 100164 of 2023 IN THE HIGH COURT OF KARNATAKA,AT DHARWAD DATED THIS THE 27TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE C M JOSHI REGULAR SECOND APPEAL NO. 100164 OF 2023 (INJ) BETWEEN: 1. SHRI SHIVMURTHY SWAMY S/O. LATE VEERAIAH, AGE: 66 YEARS, OCC. AGRICULTURIST, R/O. KALLUKAMBA VILLAGE, TQ. AND DIST. BALLARI-583101. 2. SHRI AYYAPPA SWAMY S/O. LATE VEERAIAH, AGE: 61 YEARS, OCC. AGRICULTURIST, R/O. KALLUKAMBA VILLAGE, TQ AND DIST. BALLARI-583101. 3. SHRI SADASHIVAPPA SWAMY S/O. LATE VEERAIAH, AGE: 51 YEARS, OCC. AGRICULTURIST, R/O. KALLUKAMBA VILLAGE, TQ AND DIST. BALLARI-583101. …APPELLANTS (BY SRI. V.M. SHEELVANT, ADVOCATE) AND: 1. SHRI K.M. POMPAIAH SWAMY S/O. GURUBASAIAH., SINCE DECEASED BY HIS LRS., SMT. SIDDALINGAMMA W/O. LATE K.M.POMPAIAH SWAMY AGE: 74 YEARS, OCC. AGRICULTURIST, R/O. RAMASAGAR VILLAGE, TQ. HOSAPETE, DIST. BALLARI-583101. 2. SHRI VIRUPAKSHAIAH YASHAVANT NARAYANKAR Digitally signed by YASHAVANT NARAYANKAR Date: 2025.10.30 11:09:29 +0530 - 2 - HC-KAR NC: 2025:KHC-D:14296 RSA No. 100164 of 2023 S/O. LATE K.M.POMPAIAH SWAMY, AGE: 54 YEARS, OCC. AGRICULTURIST, R/O. RAMASAGAR VILLAGE, TQ. HOSAPETE, DIST. BALLARI-583101. 3. SHRI. SHIVASHANKARAIAH S/O LATE K.M. POMPAIAH SWAMY, AGE: 49 YEARS, OCC. AGRICULTURIST, R/O. RAMASAGAR VILLAGE, TQ. HOSAPETE, DIST. BALLARI-583101. 4. SMT. MALLAMMA D/O. LATE K.M.POMPAIAH SWAMY W/O. MALLAIAH, OCC. AGRICULTURIST, R/O. KARTIGI VILLAGE, TQ. GANGAVATHI, DIST. KOPPAL-583231. 5. SMT. BASAMMA D/O. K.M. PAMPAIAH SWAMY, W/O. LATE PRABHAKAR, AGE: 50 YEARS, OCC. AGRICULTURIST, R/O. RAMASAGAR VILLAGE, TQ. HOSAPETE, DIST. BALLARI-583101. 6. K.M. CHANDRASHEKARIAH SWAMY S/O. GURUBASAIAH, AGE: 57 YEARS, OCC. AGRICULTURIST, R/O. RAMASAGAR VILLAGE, TQ. HOSAPETE, DIST. BALLARI-583101. 7. K.M.BASAIAH SWAMY S/O. KATTEIAH AGE: 51 YEARS, OCC. AGRICULTURIST, R/O. RAMASAGAR VILLAGE, TQ. HOSAPETE, DIST. BALLARI-583101. …RESPONDENTS (BY SRI. SACHCHIDANAND B. PATIL, ADVOCATE FOR R1 TO R5; R6 AND R7-NOTICE SERVED) THIS RSA IS FILED UNDER SECTION 100 R/W XLI RULE 1 OF CPC, 1908, PRAYING TO CALL FOR THE RECORDS, PERUSE THE SAME AND ALLOW THE APPEAL BY SETTING ASIDE THE JUDGMENT AND DECREE DATED 11.10.2017 PASSED IN O.S.NO. 795/2011 BY THE II ADDITIONAL CIVIL JUDGE AND JMFC, BALLARI AND THE JUDGMENT AND DECREE DATED 01.09.2022, PASSED BY THE PRL. SENIOR CIVIL JUDGE AND CJM BALLARI IN R.A.NO.47/2018 IN THE INTEREST OF JUSTICE AND EQUITY AND ETC. - 3 - HC-KAR NC: 2025:KHC-D:14296 RSA No. 100164 of 2023 THIS APPEAL, COMING ON FOR ORDERS THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE C M JOSHI) Heard both sides. 2. It is the case of the appellants that the plaintiff No.1 to 3 are the brothers and they represent the branch of K.M.Ayyaswami and the defendant No.1 to 3 represent the branch of K.M.Gurubasaiah. The said K.M.Ayyaswami and K.M.Gurubasaiah had a brother by name Basaiah and they were the children of K.M.Sanna Kottaiah. The joint family consisting of K.M.Ayyaswami, K.M.Gurubasaiah and K.M.Basaiah possessed the land measuring 6 acres 88 cents in Survey No.40 of Kallukamba village of Ballari Taluk and District. The defendant No.1 to 3 purchased the share of K.M.Basaiah to the extent of 2 acres 30 cents. In all, they together had title in respect of 2 acres 29 cents + 2 acres 30 cents out of 6 acres 88 cents. The appellants contended that they had title in respect of 2 acres 30 cents and the defendants are trying to obstruct their possession - 4 - HC-KAR NC: 2025:KHC-D:14296 RSA No. 100164 of 2023 and therefore, they approached the Trial Court in O.S.No.795/2011. It is pertinent to note that they sought injunction in respect of the entire 6 acres 88 cents. The suit was resisted by the defendants by filing the written statement where they contended that they had purchased 2 acres 29 guntas from the legal heirs of K.M.Basaiah. However, they contended that there was a partition and the injunction cannot be granted in favour of the plaintiffs and as such, the suit is misconceived and the same be dismissed. 3. On the basis of the averments in the plaint and the written statement, the trial Court framed the following issues: “1. Whether the plaintiffs prove that, they are in lawful possession and enjoyment over the suit schedule property as on the date of filing of the suit? 2. Whether the plaintiffs further prove that, the alleged interference over the suit schedule property by the defendants? 3. Whether the plaintiffs are entitled to the relief sought for? 4. What Order or Decree?” - 5 - HC-KAR NC: 2025:KHC-D:14296 RSA No. 100164 of 2023 4. After recording evidence, the Trial Court dismissed the suit on the ground that the suit property is the family property of the plaintiffs and defendants. The Trial Court in paragraph 11 and 12 of its judgment held as under: “11. It is the strong case of the defendants that, the suit property is the family property of plaintiffs and defendants and initially the suit property which was purchased by the branch head of plaintiffs and defendants subsequently, in the year 1980 the legal heirs of the K.M. Basaiah sold their share over the suit property in favour of defendants. In order to substantiate the same they have relied upon Ex.D.4 which is the registered sale deed dated 09.07.1980 and to the said sale deed the present plaintiff No.2 and father of plaintiffs signed as witness. Further in order to prove that, suit property is family property of plaintiffs and defendants, at the time of argument learned counsel for the defendants relied upon Ex.D.1 which is the certified copy of the plaint in OS No.229/2006 the said suit filed by the present plaintiffs against the defendants for the relief of declaration of title over the suit property by virtue of adverse possession against present defendants. In the said plaint para No.5 the plaintiffs have clearly admitted that, As the defendants fathers do not intend to reside at Kallukamba and as the lands are dry lands they left of the villages and started residing at Rama Sagara village, in other words relinquishing their rights in - 6 - HC-KAR NC: 2025:KHC-D:14296 RSA No. 100164 of 2023 the property and the plaintiffs father continued his possession in and over the property uninterruptedly. 12. In the above said case in plaint para No.5, the plaintiffs have clearly admitted that, the present defendants had share in the suit property and further plaintiffs stated that, the father of the defendants was not intending to reside at Kallukamba village therefore, the fathers of the defendants by relinquishing their rights in the property they are left the Kallukamba village. However, there are no materials to show when and under which document the fathers of the defendants had relinquished their rights over the suit property. At this stage it is just and proper to relay an decision of Hon'ble Supreme Court reported in (2002)9 SCC-608 in Sahakari Parvata Rao Karahala and another V/s Bheemashankar Parvata Rao Karahala. In the above said case in a similar situation Hon’ble Supreme Court held that, the court cannot grant injunction against the co-sharer in the absence of partition therefore, on careful perusal of the materials available on record there are no piece of evidence to show that, the fathers of the defendants have relinquished their rights over the suit property and the same is partitioned by meets and bounds therefore, under these circumstances plaintiffs failed to prove his exclusive lawful possession over the suit property as on the date of suit and when he is not in lawful possession over the suit property, as on the date of - 7 - HC-KAR NC: 2025:KHC-D:14296 RSA No. 100164 of 2023 suit the alleged interference of the defendants does not arise. Hence, I answer issue No.1 & 2 in the negative.” 5. In coming to such conclusion, it relied on the judgment in the case of Sahakari Parvata Rao Karahala and another V/s Bheemashankar Parvata Rao Karahala 1. 6. Being aggrieved by the same, the plaintiffs approached the First Appellate Court and it also confirmed the judgment of the Trial Court and dismissed the appeal in R.A.No.47/2018. 7. Learned counsel appearing for the appellants/plaintiffs submits that the First Appellate Court could not have dismissed the suit for injunction in its entirety despite there being an admission in the written statement of the defendants that the plaintiffs are in possession and enjoyment of 2 acres 30 cents on the western side of Survey No.40. In this regard, learned counsel appearing for the appellants points out to the written statement wherein at paragraph 18 it was stated as below: 1 (2002) 9 SCC 608 - 8 - HC-KAR NC: 2025:KHC-D:14296 RSA No. 100164 of 2023 “18. Further these defendants submits that, during the enquiry before the Deputy Tahasildar, Nada Kacheri, Kurugodu, the vendors have given the statement to that effect. Therefore these defendants and the defendant No.2 have been in lawful possession and enjoyment of 4 acre 58 cents in the schedule property since 9.7.1980, which situate within the following boundaries; East - Land of Harishchandra setty and Badigera Mouneshachar, towards West Land of plaintiffs, measuring 2.30 acres, towards North -land of Sanna Bheemareddy who is no more now and his sons are in possession and towards South Land of Harijana Kumar and Huligamma. There is a clear demarcation/boundary line between the land of the plaintiffs and the defendants. Though these defendants and defendant No.2 have been in lawful possession and enjoyment of 4.58 acres in suit schedule property, by oversight not submitted an application for change of mutation. But under law, it is the duty cost upon the revenue authorities to effect mutation the moment they receive "J" form from the Sub-Registrar Office. Hence recently these defendants and defendant No.2 got the mutation in their favour in accordance with law. All these facts are within the knowledge of the plaintiffs. But they deliberately suppressed these material facts with a dishonest intention. The plaintiffs are fully aware of the subsequent developments with regard to suit schedule property in particular the orders passed by the Deputy Tahasildar, Nada Kacheri, Kurugodu, Tahasildar, Bellary, and the pendency of the appeal before the Assistant - 9 - HC-KAR NC: 2025:KHC-D:14296 RSA No. 100164 of 2023 Commissioner, Bellary, against the orders alleged to have been passed by the Tahasildar, Bellary, under the provisions of the Karnataka Certain Inams Abolition Act.” 8. It is worth to note that it is a specific case of the defendants that 2 acres 30 cents is enjoyed by the plaintiffs by virtue of earlier partition in the property. Though the plaintiffs had sought for injunction in respect of the entire 6 acres 88 cents, there being an admission on behalf of the defendants that the plaintiffs are in possession of 2 acres 30 cents on the western side of Survey No.40, the suit in its entirety could not have been dismissed. Therefore, it is settled position of law that if a relief is claimed and if the plaintiffs do not seek the consequential relief, the suit cannot be decreed. In view of Section 34 of the Specific Relief Act, all the reliefs have to be claimed in the same suit itself. The proviso to Section 34 of the Specific Relief Act bars such suit in which the consequential reliefs are not sought. In the case on hand, Though it is submitted by the counsel for the respondents that the consequential relief of possession was not sought and when there is an admission in the written statement of the defendants - 10 - HC-KAR NC: 2025:KHC-D:14296 RSA No. 100164 of 2023 that 2 acre 30 cents was allotted to the share of the plaintiffs, it was not necessary that the entire suit has to be dismissed. The suit being one for permanent injunction simplicitar, it could not have been dismissed in its entirety. Therefore, the appeal deserves to be allowed partly. Hence, the following: ORDER (i) The appeal is allowed in part. (ii) The suit of the plaintiffs is decreed in part. (iii) The impugned judgment and decree dated 11.10.2017 in O.S.No.795/2011 passed by the II-Additional Civil Judge and JMFC, Ballari and the judgment and decree dated 01.09.2022 in R.A.No.47/2018 passed by the Principal Senior Civil Judge and CJM, Ballari are set aside only in respect of 2 acres 30 cents on the southern side of Survey No.40 of Kallukamba village of Ballari Taluk and District. The injunction shall operate only in respect of 2 acres 30 cents against the defendants. - 11 - HC-KAR NC: 2025:KHC-D:14296 RSA No. 100164 of 2023 (iv) In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration and are disposed of accordingly. SD/- (C M JOSHI) JUDGE YAN CT:PA List No.: 1 Sl No.: 8