1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH REGULAR SECOND APPEAL NO.367/2021 (INJ) BETWEEN: 1 . MR. VITTAL MANIAPPA POOJARY S/O. LATE MANIAPPA POOJARY AGED ABOUT 58 YEARS R/AT “PRATHIMA NIVAS” LOWER BENDORE, 3RD CROSS MANGALURU-575 002 (DK). … APPELLANT (BY SRI. M. SUDHAKAR PAI, ADVOCATE) AND: 1 . MR. CHANDRAHAS M., S/O. PADMANABHA P, AGED ABOUT 47 YEARS R/AT DHRUV DOOR NO.4-5-II, SHABARI TRAVELS MULLAKADU, KAVOOR MANGALURU-575 015 (DK). 2 . MR. MANJAPPA SHETTY @ MANOHAR SHETTY S/O. SHEENA SHETTY AGED ABOUT 73 YEARS 3 . MR. SUDARSHAN SHETTY S/O. RAMANNA SHETTY AGED ABOUT 59 YEARS 2 4 . MR. RAMACHANDRA CHOWTA S/O. SHAMBU CHOWTA AGED ABOUT 48 YEARS 5 . MR. ARUN KUMAR HEGDE S/O. LATE SHANKAR HEGDE AGED ABOUT 62 YEARS RESPONDENTS NO.2 TO 5 ARE ALL R/AT PADAVU MEGINA MANE KULASHEKAR POST MANGALURU-575 005 (DK). … RESPONDENTS (BY SRI. G. RAVISHANKAR SHASTRY, ADVOCATE FOR R1; SRI. RAKESH KINI, ADVOCATE FOR R2 TO R5) THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 18.01.2021 PASSED IN R.A.NO.91/2019 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MANGALURU, D.K., ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 16.02.2019 PASSED IN O.S.NO.172/2014 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND C/c OF I ADDITIONAL CIVIL JUDGE AND JMFC, MANGALURU, D.K. THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 23.10.2025 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: 3 CORAM: HON'BLE MR JUSTICE H.P.SANDESH CAV JUDGMENT Heard learned counsel for the appellant and learned counsels for respondent No.1 and learned counsel for respondent Nos.2 to 5. 2. This second appeal is filed challenging the divergent finding of the First Appellate Court in reversing the finding of the Trial Court passed in O.S.No.172/2014 and prays that this Court be pleased to allow the regular second appeal by setting aside the judgment and decree passed in R.A.No.91/2019 and restore the judgment and decree passed in O.S.No.172/2014. 3. The factual matrix of the case of the plaintiff before the Trial Court in O.S.No.172/2014 while seeking the relief of permanent prohibitory injunction restraining the defendants, their men and their servants from interfering with lawful possession and enjoyment by the plaintiff in respect of ‘A’ schedule property is that the plaintiff is the lawful owner having mulgeni right and he is in lawful possession and enjoyment of the converted/non-agricultural immovable property. The ‘A’ 4 schedule property is the vacant land and it is enclosed by compound wall towards the north and on the western side. Towards the north of the ‘A’ schedule property, the property is owned by one late Mohammed Yunous and a shed is constructed by him. Towards the west, there exists property belonging to Academy of Carrier Guidance Corporation Trust and towards the east, there is a private road leading to Shree Subramanya Bhajana Mandir. The plaintiff further stated that he has purchased ‘A’ schedule property from Sri P. Kishore Kumar as per registered sale deed dated 03.03.2007. The plaintiff further stated that prior to the sale, the ‘A’ schedule property had been got converted by one Sri B. Padmaraj as per the order of the Tahsildar, Mangaluru dated 24.09.1988. The Corporation khata relating to the ‘A’ schedule property stands in the name of the plaintiff. The plaintiff is presently working abroad i.e., Iran. The Power of Attorney Holder, the wife is the plaintiff, who filed the present suit. On 13.02.2014, the plaintiff’s attorney had casually gone to the ‘A’ schedule property for inspection. At that time, some labourers were stacking laterite stones inside the ‘A’ schedule property. On enquiry, the plaintiff was informed that 5 they were engaged by the defendants and those labourers have informed that property belongs to defendant Nos.1 to 4 and they had sold a portion of the same to defendant No.5 and to segregate the portions so sold, they were constructing a compound wall across the ‘A’ schedule property. It is contented that ‘A’ schedule property belongs to her husband on mulgeni right and they had no right to interfere with the possession and enjoyment of the ‘A’ schedule property and the defendants left the site without stating anything further, but asked the workers to continue the work. Hence, in view of illegal trespass being made by the defendants to ‘A’ schedule property, in order to protect the interest of the plaintiff as mulgenidar as well as possession, the plaintiff is constrained to file the present suit. 4. In pursuance of the suit summons, defendant Nos.1 to 3 and defendant No.5 have appeared before the Court and defendant Nos.1 and 5 have filed their separate written statement. Inspite of service of summons, defendant No.4 remained absent, hence, was placed ex-parte. The defendant No.1 denied the plaint averments and contend that defendant 6 No.1 is a member of a joint family well known as ‘Padavu Mane’ family consisting of 8 branches. The said joint family owned vast immovable properties in and around Mangaluru. The said properties were partitioned through arbitration as per the Arbitration Award dated 31.12.1977 by the arbitrators, namely Sri K. Vyasa Rao and others, which was made into a Court Decree as per the decree dated 16.10.1978 in Arbitration Case No.5/1978. By virtue of the terms of the said decree, the schedule property along with other properties were reserved for the purpose of performing viniyogas of the family deity from the income derived out of the said properties and hence, the said properties remained undivided and joint. The said decree makes it very clear that the senior most male members of the said 8 branches or by the majority of them are entitled to sell or transfer the properties for the purpose of vinoyogas of the family deity. Accordingly, the members of the family held meetings and were deciding to manage the alienation of the family properties. In fact, in all the mulgeni properties, it was specifically mentioned that, in case the mulgeni tenant fails to pay the mulgeni right continuously for a period of 3 years or the mulgeni 7 tenant is to sell or transfer the property without the written consent of the family or put up any construction without the consent of the mulagar, his mulgeni right stands automatically terminated and the mulgeni tenant shall not have any manner of right in respect of the property given to him on mulgeni. The defendant No.1 further contended that family of this defendant have not received any mulgeni right or given any permission to alienate or put up construction, which confirms that the plaint schedule property is not a mulgeni property and the claim put forward by the plaintiff is false and untenable and no material is placed before the Court that plaintiff is in possession and enjoyment of the property. 5. The defendant No.5 also filed the written statement denying the plaint averments and contend that he had purchased the properties as per the sale deed dated 30.09.2011 which is stated in the written statement schedule property to the extent of 18.5 cents and ever since its purchase, he has been in actual, peaceful, lawful and exclusive possession and enjoyment of the written statement schedule property. The predecessors in 8 title of the written statement schedule property have purchased the same from its absolute owners i.e., defendant Nos.1 to 4 as per sale deed dated 21.03.2009 and they have also been in actual and exclusive possession. It is contented that written statement schedule property is converted for residential purpose as per the order of the Tahsildar dated 21.01.2009. The khata in respect of the written statement schedule property maintained by the Mangaluru City Corporation is changed in the name of this defendant and he has been paying self-assessment tax. It is contented that plaintiff and his wife are total strangers to this defendant and at no point of time, they have approached this defendant. It is contented that defendant No.5 is a bona-fide purchaser for value of the written statement schedule property from his vendors and he has purchased the written statement schedule property after making proper enquiry. It is contented that before purchasing the property, he also obtained the legal opinion and paid the sale consideration to the vendors. It is contented that defendant Nos.1 to 4 nor his purchasers have informed him about any alleged mulgeni rights subsisting in respect of the written statement schedule property and 9 defendant No.5 becomes the absolute owner of the written statement schedule property. It is also contented that written statement schedule property was the subject matter of Arbitration Award and decree passed in Arbitration Case No.5/1978 on the file of the Civil Judge, Mangaluru. 6. The Trial Court, having considered the pleadings of the parties, framed the following issues: “1. Whether the plaintiff proves that, he is in possession of plaint schedule property as per registered sale deed dated 03.03.2007? 2. Whether the plaintiff proves the alleged interference of the defendants? 3. Whether the plaintiff is entitled for the relief as prayed in the plaint? 4. What order or decree?”. 7. In order to prove the case of the plaintiff, the plaintiff examined himself as P.W.1 and got marked the documents as Exs.P1 to P29 and also examined one witness as P.W.2, who is the vendor of the plaintiff and got marked one 10 document through him i.e., Ex.P30. The defendants examined a witness as D.W.1 and got marked the documents as Exs.D4 and D5 and so also examined another witness as D.W.2 and defendant No.5 has been examined as D.W.3 and got marked the documents as Exs.D6 to D12. Exs.D1 to D3 are marked during the cross-examination of P.W.1. 8. The Trial Court having considered both oral and documentary evidence and also considering the pleadings as well as the recitals of the documents, extracted the contents of the document as well as the evidence available on record, particularly the evidence of P.W.1 and D.W.1, admission on the part of D.W.2 and D.W.3 and answered issue No.1 as ‘affirmative’, in coming to the conclusion that plaintiff has established his possession in respect of the suit schedule property, consequent upon the sale deed dated 03.03.2007 and also answered other issues as ‘affirmative’ that there is an interference by the defendants and granted the relief of permanent injunction as sought by decreeing the suit. 11 9. The same is challenged before the First Appellate Court in R.A.No.91/2019. The First Appellate Court having considered the grounds urged in the appeal memo, arguments of learned counsel for respective parties as well as both oral and documentary evidence has formulated the following points for consideration: “1. Whether the plaintiff’s suit for permanent injunction without seeking declaration of title is maintainable under law? 2. Whether the impugned judgment of the Trial Court is against law, fact, evidence and probabilities of the case and liable to be intervened by this Court? 3. What order or decree?”. 0 10. The First Appellate Court having reassessed both oral and documentary evidence comes to the conclusion that plaintiff cannot seek the relief of permanent injunction without seeking declaration of title and judgment and decree of the Trial Court requires interference and the same is against the evidence and probabilities of the case and in view of answering both the points 12 as ‘affirmative’, the First Appellate Court reversed the findings of the Trial Court in coming to the conclusion that plaintiff ought to have sought for the relief of declaration when there is cloud on the title. Being aggrieved by the judgment and decree of the First Appellate Court, the present second appeal is filed before this Court. 11. The main contention of learned counsel appearing for the appellant/plaintiff in this second appeal is that Ex.P1 is the sale certificate dated 28.10.1961 issued in favour of one Sri Ramappa. He was the successful auction purchaser of mulgeni rights of heirs of one Chandappa Belehada, who held the mulgeni rights in respect of auction property. The auction property is described as Sy.No.127/5, 25 cents, southern portion of 10.56 acres. Ex.P2 is the delivery receipt by Ramappa. Ex.P26 is the sale deed dated 09.09.1963 executed by Ramappa in favour of Devaraj Poovani. Ex.P4 is the sale deed dated 24.05.1967 by Devaraj Poovani in favour of Padmaraj. Ex.P6 is the sale deed dated 07.09.1989 by Padmaraj in favour of Kishore. Ex.P7 is the said deed by Kishore in favour of the 13 plaintiff. These are all the documents produced by the appellant before the Trial Court while seeking the relief of permanent injunction. Added to that, during the pendency of the suit, the defendants got issued a legal notice dated 17.06.2016 marked as Ex.P28. The schedule in Ex.P28 is replica of the plaint ‘A’ schedule property. In Ex.P28, they demanded the plaintiff to surrender the vacant possession of the plaint ‘A’ schedule property. In doing so, they conceded that the plaintiff is in possession of the said property. In Ex.P9, RTC, relevant page No.10, column No.9, shows entry relating to plaintiff. Ex.P10 is the khata and Ex.P11 is the M.R. order and all these documents establishes that plaintiff is in possession of the suit schedule property. 12. It is also contented that the appellant herein sought to produce certified copy of the registered mulgeni deed bearing No.2744/1947 by way of additional evidence. Consequently, respondent No.1 virtually conceded that the plaintiff is transferee of mulgeni right. It is contended that the lower Appellate Court lost sight of the fact that in a suit for injunction, even if there is 14 an averment regarding title, the possession alone becomes the main issue. If the plaintiff is found in possession and the defendants are found to be true owners, a qualified injunction will be granted from dispossessing the plaintiff, except in accordance with law. It is further contented that even assuming that sale deed of the appellant is invalid and as such, he cannot claim to be a valid mulgeni tenant, yet, the defendant Nos.1 to 4 as original mulagars and defendant No.5 as a transferee from them in respect of 18.5 cents out of plaint schedule property could not have interfered with the possession of the plaintiff and their remedy was to seek recovery of possession. The observation of the First Appellate Court that a suit for injunction against alienation is not maintainable is incorrect. 13. This Court having considered the grounds urged in the appeal memo and also since there is a divergent finding, admitted the second appeal and framed the following substantial questions of law: “1. Whether the First Appellate Court was right in allowing the appeal and dismissing the suit on the ground that the plaintiff ought to have 15 sought for declaration of title to the suit property? 2. Whether the First Appellate Court was right in reversing the judgment and decree of the Trial Court?” 14. Learned counsel appearing for the appellant in his argument would vehemently contend that at the first instance, Trial Court granted the relief of permanent injunction and the First Appellate Court reversed the same and there is a divergent finding. It is contented that mulgeni right was purchased and Ex.P1 is dated 28.10.1961. i.e., the sale certificate issued by the Court in favour of Sri Ramappa. Ex.P2 is the delivery receipt and would contend that said Sri Ramappa executed a document of Ex.P26 dated 09.09.1963 in favour of Devaraj Poovani. The said Devaraj Poovani executed the sale deed in terms of Ex.P4 in the year 1967 in favour of Padmaraj. The said Padmaraj sold the property in favour of Kishore, who is the vendor of the plaintiff on 03.03.2007 in terms of Exhibit P7. It is also the contention that notice was issued to surrender the possession in terms of Ex.P28 on 17.06.2016 to vacate and handover the possession. 16 Hence, it is clear that possession is admitted in respect of plaintiff is concerned. Learned counsel would vehemently contend that when the Trial Court granted the relief of permanent injunction, defendant No.5 filed the appeal contending that he had purchased the property to the extent of 18.5 cents in 2011 and his vendor had purchased the same in 2009. The counsel would vehemently contend that First Appellate Court committed an error in reversing the finding of the Trial Court and failed to take note of Ex.P28-legal notice, wherein possession was categorically admitted and established and possession can be taken only under due process of law. 15. The learned counsel appearing for the appellant, in support of his argument relied upon the judgment in MONAPPA KOTTARI AND OTHERS VS. DAVID PINTO AND ANOTHER reported in ILR 2006 KAR 3936, wherein this Court held that the right of the mulgenidar or sub-mulgenidar cannot be extinguished except in case of violation of the conditions of mulgeni relating to payment of rent. Thus, if anybody purchases the right of mulgar, the same will always be subject to the right 17 of mulgenidar or sub-mulgenidar. The counsel also brought to notice of this Court relevant paragraph No.14, wherein the said principle is discussed. 16. The counsel also relied upon the judgment of the Apex Court in ANATHULA SUDHAKAR VS. P. BUCHI REDDY (DEAD) BY LRS. AND OTHERS reported in (2008) 4 SCC 594. The counsel referring this judgment brought to notice of this Court paragraph No.14, wherein it is categorically held that, if no dispute with regard to the title is concerned, no need to seek for the relief of declaration. An action for declaration, is the remedy to remove the cloud on the title to the property. Hence, the First Appellate Court committed an error. The counsel also brought to notice of this Court paragraph No.16, wherein discussion was made that 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. 18 17. Per contra, learned counsel appearing for respondent No.1 and learned counsel appearing for respondent Nos.2 to 5 in their argument would vehemently contend that though suit is filed for the relief of permanent injunction, First Appellate Court taken note of both oral and documentary evidence available on record. The counsel would vehemently contend that subject matter of the suit is Sy.No.127/5A and even, P.W.1 is not aware of the extent of the property. The counsel also brought to notice of this Court in detail discussion made by the First Appellate Court and contend that defendant No.1, who is the mulagar denies the title of the plaintiff. When such being the case, the First Appellate Court rightly reversed the judgment of the Trial Court. Learned counsel would vehemently contend that the earlier three sale deeds clearly disclose the same boundary. But, in the sale deed of the plaintiff i.e., Ex.P7, different boundary is given. The admission of P.W.1 was not considered by the Trial Court and the same is appreciated by the First Appellate Court and the boundary description given in the plaint is not correct and identity of the property is not proved and even sketch is not proved by examining an Engineer. The counsel also vehemently 19 contend that admissions of P.W.1 takes away the case of the plaintiff and the First Appellate Court correctly appreciated the evidence available on record, since defendant Nos.1 and 2 dispute the title of plaintiff and even title of defendant No.5 is not disputed. The defendants have denied the title as well as the boundaries which is mentioned in the plaint and the same has been appreciated by the First Appellate Court. The counsel also would vehemently contend that when the title is disputed, First Appellate Court rightly comes to the conclusion that without seeking the relief of declaration, the plaintiff cannot file the suit for permanent injunction simpliciter. Hence, it does not require any interference. 18. In reply to the arguments of learned counsel for respondent No.1 and learned counsel for respondent Nos.2 to 5, learned counsel for appellant brought to notice of this Court the averments made in the written statement, particularly in paragraph No.7, wherein the defendant No.1 categorically admitted that neither the defendants Nos.1 to 4 nor his purchasers have informed him about any alleged mulgeni rights 20 subsisting in respect of the written statement schedule property. The vendors of this defendant have represented to him that written statement schedule property is their absolute property, they having purchased the same from its original owners i.e. defendant Nos.1 to 4 herein and others and they have handed over the title in respect of the written statement schedule property to this defendant and the documents which have been handed over do not show any such alleged mulgeni right over the written statement schedule property. It is also contented that there was an Arbitration Award which was registered as document No.1021/1977-78 before the office of Sub-Registrar of Mangaluru City. The written statement ‘Schedule Property’ among other properties were reserved for the maintenance of the family and towards viniyogas for the performance of rituals of family deity. The counsel also brought to notice of this Court that the extent of claim made by the defendants is only 18.5 cents. The document at Ex.P1 is very clear that purchase by vendor is through Court auction in the year 1961 and counsel also contend that Exs.P9, P10 and P11 establish the possession of the plaintiff i.e. in the RTC, the name of the plaintiff is shown 21 and the khatha and M.R. also disclose that plaintiff is in possession as on the date of filing of the suit. The counsel also would contend that Ex.P28 is a legal notice and the boundary mentioned in the same tallies with the plaint schedule boundary and cannot contend that boundary description is not correct and there is no cloud on the title. Hence, the First Appellate Court committed an error. 19. Having considered the grounds urged in the appeal memo and also the arguments addressed by the learned counsel for the appellant and learned counsel for respondent No.1 and learned counsel for respondent Nos.2 to 5, this Court has to re- analyze and re-appreciate the material available on record, since there is a divergent finding, keeping in view the substantial questions of law framed by this Court whether the First Appellate Court was right in allowing the appeal and dismissing the suit on the ground that the plaintiff ought to have sought for declaration of title to the suit property and whether the First Appellate Court was right in reversing the judgment and decree of the Trial Court. 22 20. While considering the material available on record, when the relief is sought for bear injunction, the Court has to look into the material placed before the Court whether as on the date of filing the suit, the plaintiff is in possession of the suit schedule property or not. It has to be noted that in the written statement, it is contended that suit schedule property is not a mulgeni property. But, during the course of evidence, it is suggested to P.W.1 that it is a mulgeni property and answer is elicited from the mouth of P.W.1. It is also important to note that when the document of Ex.P20-photo was shown, P.W.1 categorically identifies his property and even deposed before the Court that to the extent of 102 feet, the suit schedule property is attached to the road and the said road is on the west of the suit schedule property. Hence, it is very clear that suit schedule property is identified by P.W.1 during the evidence. 21. I have already pointed out that, even answer is elicited from the mouth of P.W.1 that suit schedule property is a mulgeni property. P.W.1 also further admitted that mulagar is defendant No.1. But, he did not verify whether consent of 23 defendant No.1 is necessary or not and he has not taken any opinion. But, he categorically says that he has not given any rent, but his vendor has paid the mulgeni. Hence, it is clear that suit schedule property is a mulgeni property. Even, Exs.P26, P4, P5 and P6 clearly disclose that suit schedule property is the mulgeni property and it is also clear that Sri. K. Ramappa had purchased the same in a Court auction in the year 1961 and thereafter, the same has changed to different hands in the year 1963 and 1967. Thereafter, the vendor of the plaintiff Kishore had purchased the same from Sri Padmaraj. 22. It is also important to note that said Sri Padmaraj has converted the suit schedule property in the year 1988 and to that effect, document is also produced and when the document was confronted to him as Ex.D1, he identified the property shown in ‘blue colour’ as the property which belongs to him and the same is the suit schedule property. It is also important to note that the sketch attached to Ex.P6 and other sketches which were produced by the plaintiff clearly disclose that the said sketch tally with Ex.P26 sketch. But, he categorically admits that 24 he has received the notice and he gave the reply and also categorically says that defendants are claiming right to the extent of 18.5 cents. It is also important to note that, in the cross-examination of D.W.1, he categorically says that property No.127/5A to the extent of 8 acres and odd belongs to ‘Mejinamane’ and admits that some portion was given for mulgeni and categorically admits that mulgeni right was created in respect of the said property. 23. As regards the possession of the plaintiff is concerned, when question was put to D.W.1 that RTC produced by the plaintiff discloses that plaintiff is in possession of the property, he also admits that name of the plaintiff is mentioned in the RTC and mulgeni right is created in favour of the plaintiff in respect of the said property. The Trial Court also taken note of the fact that on perusal of Exs.P9 and P15, the name of the plaintiff is entered as mulgeni holder and has been in possession of the suit schedule property. Apart from that, he categorically admits that as per mulgeni right, plaintiff’s property comes in other area, but he does not know the survey number. Though, 25 he claims that suit schedule property is not the mulgeni property, he is having documents and he can produce those documents, but not produced any documents. The evidence of D.W.1 clearly disclose that schedule property is mulgeni property and the plaintiff is the mulgenidar of the schedule property as entered in Exs.P9 and P15 and also taken note of the documents Exs.P26, P4, P5 and P6 and those documents disclose that property is transferred to the name of the plaintiff and the plaintiff is the mulgenidar of the schedule property. The Trial Court also taken note of these factors and even defendants did not dispute the fact that the original owner of the property Sri K. Ramappa got the suit schedule property vide mulgeni on 30.09.1947 and he categorically admitted that suit schedule property is a mulgeni property and that he does not know about the boundaries of the property which is in possession of the plaintiff. He also admits the description of the suit schedule property during the course of cross-examination and also admits that there exists a road on the northern side and also on the western portion, there is a road and also admits the boundaries 26 in the cross-examination. Where such being the case, identity of the property is also admitted by D.W.1. 24. Apart from that, D.W.2 has been examined on behalf of the defendants. He categorically admits that the property which is marked in Ex.P7A with ‘red colour’ was sold in favour of the plaintiff and hence, the document was marked. But, when the suggestion was made that said land is in possession of the plaintiff, he says that he is not aware of the same. Further, he admits that in the property which the plaintiff has purchased, the defendant No.5 is not having any right. 25. D.W.3 also categorically admits that defendant Nos.1 to 4 have only warga right over the suit schedule property and defendant No.5 himself has admitted that schedule property is a mulgeni property and defendants Nos.1 to 4 have warga right. Hence, the case of the plaintiff is substantiated by eliciting answer from the mouth of D.Ws.1 to 3. 26. Learned counsel appearing for the appellant also relied upon the judgment referred supra in MONAPPA KOTTARI’s case, wherein this Court has held that the right of 27 the mulgenidar or sub-mulgenidar cannot be extinguished except in case of violation of the conditions of mulgeni relating to payment of rent. Thus, if anybody purchases the right of mulgar, the same will always be subject to the right of mulgenidar or sub-mulgenidar. Hence, there is a force in the contention of the learned counsel for the appellant that mulgenidar or sub- mulgenidar will enjoy the property permanently subject to payment of rent to mulagar and such a peculiar lease is prevailing only in Canara District. 27. This Court also would like to rely upon the judgment of the Apex Court in ANATHULA SUDHAKAR’s case, wherein in paragraph No.14, detailed discussion is made with regard to filing of a suit for the relief of declaration is concerned when there is a cloud on the title. Paragraph No.14 of the judgment reads as under: “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 28 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 plaintiff's 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 29 raised only the issue of possession and not any issue of title”. 28. The Apex Court also in the judgment clearly held that when there is a dispute with regard to the title is concerned, then suit ought to have been filed for the relief of declaration. An action for declaration, is the remedy to remove the cloud on the title to the property. But, in the case on hand, no dispute with regard to the mulgeni right of the plaintiff is concerned. Even, learned counsel appearing for the appellant brought to notice of this Court paragraph No.7 of the written statement that defendant No.5 has made the clear averment that neither defendant Nos.1 to 4 nor the purchasers have informed him about any alleged mulgeni rights subsisting in the respect of the written statement schedule property. The vendors of this defendant have represented to him that written statement schedule property is their absolute property, they having purchased the same from its original owners i.e. defendant Nos.1 to 4 herein and others and have handed over all the titles in respect of the written statement schedule property to the defendants. Hence, it is clear that mulgeni right is suppressed by 30 the defendant Nos.1 to 4 before purchasing the property by the defendant No.5. 29. It is also important to note that the document of Ex.P28 which is produced before the Court is also very clear that defendants admitted possession of the plaintiff in terms of the said document, wherein they have sought for handing over possession. When such being the case, the First Appellate Court ought to have taken note of said fact into consideration and the First Appellate Court lost sight of the said document while reversing the judgment of the Trial Court. It is also important to note that learned counsel for the appellant brought to notice of this Court that the schedule mentioned in Ex.P28 is replica of the schedule mentioned in the plaint. Hence, the very contention that earlier 3 sale deeds disclose the different description and Ex.P7 does not disclose the said description cannot be accepted and the very same schedule is admitted by the defendants while issuing notice. When the possession of the plaintiff is admitted in terms of the document Ex.P28, wherein in the notice also right of the plaintiff in respect of the schedule property is admitted 31 and called upon to quit and surrender the schedule property and directed to deliver the possession of the schedule property, the First Appellate Court ought to have taken note of the said fact that plaintiff is in possession of the property and the possession ought to have been taken under due process of law. The suit is also filed for the permanent injunction simpliciter and defendants also not claimed title in respect of the very same property of the plaintiff. No doubt, the description shown in the sale deed of the defendants overlaps the same, but this document came into existence subsequently and having traced the boundaries from 1961 onwards as well as subsequent change in the boundaries, the same is admitted by the defendants themselves in the notice dated 17.06.2016 and learned counsel cannot dispute the same contending that Ex.P7 is having different boundary and admission of the defendant takes away the case of the defendants, since the boundary is different. 30. It is settled law that when there is clear admission on the part of defendants in the notice issued in terms of Ex.P28 as well as throughout in the cross-examination which has been 32 discussed in detail about mulgeni right which the plaintiff is having and apart from that, since possession is admitted, the Trial Court rightly appreciated both oral and documentary evidence of P.W.1 as well as D.Ws.1 to 3. Apart from that, the documents clearly establish the possession of the plaintiff in terms of Exs.P9 to P11 and earlier vendor of the plaintiff got converted the property in the year 1988 itself i.e., one Padmaraj and as on the date of filing of the suit, the documents stand in the name of the plaintiff and the same is established by the plaintiff. 31. When such being the case, the very approach of the First Appellate Court that the plaintiff ought to have sought for the relief of declaration is an erroneous approach when there is no dispute with regard to the title is concerned and the judgment of the Apex Court in ANATHULA SUDHAKAR’s case will not come to the aid of the defendants, but the same comes to the aid of the appellant, in view of the discussion made in paragraph No.14 of the judgment. Hence, the judgment impugned passed by the First Appellate Court requires interference of this Court. 33 Accordingly, I answer substantial questions of law framed by this Court that First Appellate Court was not right in allowing the appeal and dismissing the suit on the ground that the plaintiff ought to have sought for declaration of title to the suit property and the reversal of the judgment and decree of the Trial Court is an error. Hence, the judgment of the Trial Court requires to be restored and if the defendants are having any right, the same has to be exercised under due process of law. 32. In view of the discussion made above, I pass the following: ORDER (i) The regular second appeal is allowed. (ii) The impugned judgment and decree of the First Appellate Court is set aside. Consequently, the judgment and decree of the Trial Court is restored and the same is confirmed. Sd/- (H.P. SANDESH) JUDGE ST