- 1 - HC-KAR NC: 2026:KHC:9069 RFA No. 862 of 2009 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF FEBRUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE M.G.S. KAMAL REGULAR FIRST APPEAL NO. 862 OF 2009 (INJ) BETWEEN: MR K A NASRUDDIN S/O K.A.MOHAMMED AZAM AGED ABOUT 70 YEARS R/A NO.38/6, (OLD NO.38/2) BAZAAR STREET CROSS, HAYATH STD FLOOR MILL, KBAR ROAD, NEELASANDRA, BANGALORE - 560 047. …APPELLANT (BY SRI. VISHNU HEGDE.,ADVOCATE) AND: SRI AHMED JAN SINCE DEAD BY HIS LRS 1(a) SRI. CHAND PASHA S/O AHMED JAN AGED ABOUT 54 YEARS 1(b) SRI. FAIROZ PASHA S/O AHMED JAN AGED ABOUT 42 YEARS 1(c) SRI. AFROZ PASHA S/O AHAMED JAN AGED ABOUT 39 YEARS ALL ARE R/AT NO.38/2, BAZAAR STREET Digitally signed by SUMA B N Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:9069 RFA No. 862 of 2009 DILKUSH HOTEL, NEELASANDRA BENGALURU - 560 047. …RESPONDENTS (BY SRI. S.A. SAMI.,ADVOCATE FOR R1 (A TO C) THIS RFA IS FILED UNDER SECTION 96 R/W ORDER LXI RULE 1 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 17.08.2009 PASSED IN O.S.NO.7030/2004 ON THE FILE OF THE XXII ADDL. CITY CIVIL JUDGE, BANGALORE, DISMISSING THE SUIT FOR PERMANENT INJUNCTION AND ALSO DISMISSING AGAINST IA FILED UNDER ORDER XXXIX, RULE 2A OF CPC. THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE M.G.S. KAMAL ORAL JUDGMENT This appeal is by the plaintiff being aggrieved by the judgment and decree dated 17.08.2009 passed in O.S.No.7030/2004 on the file of XXII Additional City Civil Judge, Bangalore (for brevity 'Trial Court') by which, suit of the plaintiff for permanent injunction has been dismissed. 2. Subject matter of the suit is property bearing No.38/2, New No.38/6, situated at Bazaar Street, Neelasandra (in Sy.No.118, Civil Station) new Infantry Church Road, Bangalore, - 3 - HC-KAR NC: 2026:KHC:9069 RFA No. 862 of 2009 measuring East to West 15 feet and North to South 30 feet, totally measuring 450 sq. ft and bounded on; East by : Abdul Gaffar Shaiab's land West by : Yaseen Saheb's land North by : Channel South by : V Muniyappa's land the southern side wall is about 30 feet with AC sheet roofing. 3. Case of the plaintiff is that he is the absolute owner of the suit schedule property having purchased the same in terms of a registered deed of sale dated 16.06.1983. Name of the plaintiff has been mutated in the revenue records and he has been in possession and enjoyment of the same as absolute owner thereof and has been paying property tax. Suit property consists of three shops. Plaintiff is running businesses of STD booth and a Flour Mill in two of the shops and another shop has been let out to a tenant who is using the same to run a medical shop. Defendant is neighbour on the southern side of the suit schedule property. He is also running a business of hotel on the southern side of the suit schedule property. The defendant all of a sudden started to interfere with peaceful possession and enjoyment of the suit schedule property by causing threat to damage the southern side of the wall of the - 4 - HC-KAR NC: 2026:KHC:9069 RFA No. 862 of 2009 plaintiff's shop measuring 30 feet. That there is sufficient passage on the southern side after southern side wall of the plaintiff. That the building existing in the suit schedule property was constructed about 20 years ago. That being unbearable of the illegal threats posed by the defendant, plaintiff was constrained to file the suit for permanent injunction. 4. Defendant in the written statement denying the plaint averments contended that originally plaintiff was a tenant in a portion of the property bearing No.38/2 under its owner Sri.Muniyappa. After the death of said Muniyappa, plaintiff became tenant under his legal representatives. At no point of time, either Muniyappa or his legal representatives have sold the property to the plaintiff. That originally two different portions of the property bearing No.38/2 were purchased by deceased Muniyappa under two different deeds of sale. He had purchased a portion measuring East to West 10 feet, North to South 30 feet in terms of a deed of sale dated 29.05.1972 in which the plaintiff was a tenant. Another portion of the same property measuring East to West 92 feet, North to South 30 - 5 - HC-KAR NC: 2026:KHC:9069 RFA No. 862 of 2009 feet was purchased by deceased Muniyappa in terms of deed of sale dated 17.12.1966. 5. That upon the demise of said Muniyappa his legal representatives have filed a suit in O.S.No.10551/1993 in which the property measuring 92 feet east to west, 30 feet north to south was allotted to the share of Sreenivas, s/o late Muniyappa. Thereafter three sons of the defendant namely, Chand Pasha, Fairoz Pasha and Afroz Pasha purchased three portions of the properties each portion measuring East to West 10 feet, North to South 92 feet under three different of deeds of sale on 23.04.2001. Since said Chand Pasha, Fairoz Pasha and Afroz Pasha were minors, defendant as his natural guardian father had represented their interest with the sale deed. Revenue records were mutated in the names of said purchasers. Ever since the date of purchase they have been in possession and enjoyment of the said property. That at no point of time, the remaining portion of property bearing No.38/2 measuring East to West 10 feet, North to South 30 feet was sold by Muniyappa to plaintiff. Plaintiff was only a tenant. After the purchase of the property the defendants have - 6 - HC-KAR NC: 2026:KHC:9069 RFA No. 862 of 2009 put up construction on the portion of the property measuring 30 feet X 70 feet and have kept a passage of 30 feet X 22 feet open in which the plaintiff is trying to encroach upon the said portion of the passage, claiming to have purchased property measuring 15 feet X 30 feet which is false and incorrect as he has no right, title and interest over the said extent of land. Hence, sought for dismissal of the suit. 6. Trial Court based on the pleading framed following issues; "1. Does plaintiff prove his lawful possession of suit property on the date of suit? 2. Does plaintiff further prove illegal interference by defendant as alleged? 3. What order or decree?". 7. The plaintiff examined himself as PW.1 and exhibited 27 documents marked as Ex.P1 to P27. Defendant examined himself as DW1 and two witnesses have been examined on behalf of defendant as DW.2 and DW.3. Fifty two documents have been marked as Ex.D1 to D52. 8. Trial Court on appreciation of evidence answered issue Nos. 1 and 2 in the negative, consequently dismissed the suit. Being aggrieved, the present appeal. - 7 - HC-KAR NC: 2026:KHC:9069 RFA No. 862 of 2009 9. Learned counsel for appellant taking this Court through the records submits that the trial Court has grossly erred in holding that the plaintiff could not have claimed anything more than what was mentioned and referred to in Ex.P1. In that, he submits that the trial Court has merely referred to the earlier sale deed under which Muniyappa had purchased the property, without appreciating that Muniyappa being the owner of remaining extent of land which is admitted even by the defendant. He submits the trial Court has wrongly appreciated the contents of the document which though refers to Ex.P1 under which Muniyappa had purchased East to West 10 ft and North to South 30 ft it has conveniently ignored the further contents of the very same deed which reflects Muniyappa being owner of the remaining extent of land measuring 30 feet. He submits sufficient material being available on record to justify the fact that Muniyappa was the owner to an extent 10 ftx30 ft. Upon his demise the entire property was succeeded or inherited by his legal representatives who were none other than vendors of plaintiff. He reads into the recital of the deed of sale and points out that there is a explicit reference in the deed of sale - 8 - HC-KAR NC: 2026:KHC:9069 RFA No. 862 of 2009 regarding Muniyappa being the owner of property measuring 10 feet x30 feet had put up construction to an additional extent of about 5 feet to which he was owner of the property. It is only thereafter they have conveyed an extent of 15 ft x30 ft. As such, the trial Court was in error in ignoring this material evidence available on record. He refers to the deposition of DW1 more particularly at paragraphs 6 and 8 where the possession and title of the plaintiff has been admitted by the defendant. He submits suit being one for permanent injunction nothing more was required to be proved by the plaintiff. The trial Court on assumption and surmises has come to erroneous conclusion warranting interference at the hands of this Court. 10. Learned counsel for appellant also furnishes certified copy of the Judgment and decree dated 31.01.2022 passed in O.S.No.6715/2006 on the file of XXXIV Additional City Civil and Sessions Judge, Bengaluru. The said suit is filed by Chand Pasha, Fairoze Pasha, Afroz Pasha, sons of defendant against M.Sreenivas their vendor and plaintiff therein and said suit has been dismissed as against which regular first appeal was also filed by the said persons. Said appeal has also been dismissed. - 9 - HC-KAR NC: 2026:KHC:9069 RFA No. 862 of 2009 11. Learned counsel for defendants on the other hand justifying the Judgment and decree passed by the trial Court submits that the trial Court has not committed any error inasmuch as plaintiff cannot claim anything other than what was available under Ex.D49 to Muniyappa. He submits Muniyappa admittedly the owner of the property measuring 10 ft and 30 ft having purchased under the document Ex.P1 would convey only said extent of land in favour of the plaintiff and not beyond. The schedule and description given in the sale deed at Ex.D49 alone can be conveyed since though plaintiff claimed additional extent, he cannot derive any better title more than East to West 10 ft and North to South 30 ft. He submits document being a registered document no oral evidence can be accepted to the said extent. 12. He further submits since defendants have specifically denied title and possession of the property as claimed in the plaint, it was mandatory on the part of plaintiff to have sought for relief of declaration as suit for bare injunction was not maintainable. Hence, seeks for dismissal of the appeal. - 10 - HC-KAR NC: 2026:KHC:9069 RFA No. 862 of 2009 13. Heard and perused the records. 14. Points that arises for consideration are: "(i) Whether the plaintiff has proved to be the owner in lawful possession of the suit property being entitled for relief as sought for? (ii) Whether the trial Court was justified in dismissing the suit?" 15. It is settled position of law that mere denial of title would not be sufficient compelling a party seeking injunctive relief to seek declaratory relief as each case has to be viewed under its own facts and circumstances. Further denial of title shall be substantive giving raise to complicated and serious questions of fact creating cloud over the right, title and interest of the party approaching the Court seeking injunctive relief. In a suit for injunction if there are sufficient pleadings and evidence on record incidentally adverting to the question of title is not completely barred. Relevant to refer to Judgment of the Apex Court in the case of Anathula Sudhakar Vs Buchi Reddy(dead) by LRs and others reported in (2008) 4 SCC 594 in which the Apex Court at paragraph 21 has summarized - 11 - HC-KAR NC: 2026:KHC:9069 RFA No. 862 of 2009 the legal position regarding suit for prohibitory injunction which is as under: 21. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under: (a) Where a cloud is raised over the 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 the 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 [Annaimuthu Thevar v. Alagammal, (2005) 6 SCC 202] ). 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. (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 straightforward, 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 - 12 - HC-KAR NC: 2026:KHC:9069 RFA No. 862 of 2009 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 the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case. 16. In the instant case plaintiff is claiming his right over the suit property which is measuring East to West 15 ft and North to South 30 feet together with three shops existing thereon in terms of deed of sale dated 16.06.1983 produced at Ex.P1. In paragraph 3 and 4 of the plaint, plaintiff has specifically and categorically pleaded in this regard as under: "3. It is submitted that, the plaintiff is the absolute owner and in lawful peaceful possession and enjoyment of the property bearing No.38/2, New No.38/6 situated at Bazaar Street, Neelasandra, (in Sy.No.118, Civil Station), now Infantry Church Road, Bangalore, measuring 15x30 feet, which is morefully described in the schedule and hereinafter referred to as the schedule property, from the date of the purchase till today. The defendant has no right or any kind of interest in the suit schedule property including the walls around the schedule property. 4. It is submitted that, the plaintiff had purchased the said property through the registered Sale Deed dated 16.06.1983 for a valuable sale consideration from its lawful vendors and the said sale deed was registered as vide document No.1053/1983- 84, Volume No.761, Book No.I, in the office of the Sub- Registrar, Jayanagar, Bangalore. The copy of the registered sale deed dated 16.06.1983 standing in the name of the plaintiff is produced at Annexure-A. The copy of the Encumbrance Certificate is produced at Annexure-B. The copy of the Nil Encumbrance Form No.16 is produced at Annexure-C. The Form No.16 it shows about the old number of the schedule premises as No.38/2, and new number is 38/6 of the suit schedule property." - 13 - HC-KAR NC: 2026:KHC:9069 RFA No. 862 of 2009 17. There is no dispute of the fact the vendor under the said sale deed are the legal representatives of Muniyappa. Relevant portion of deed of sale dated 16.06.1983 under which legal representatives of Muniyappa conveyed the suit property in favour of plaintiff as seen at page No.2 read as under: "Whereas the late husband of the first vendor and father of the vendors 2 to 8 namely Sri.V.Muniyappa son of Venkatappa, was the absolute owner of the schedule property which was a site bearing No.3 formed in Survey No.118 situated Nilsandra Bangalore-47 measuring East 10 feet, west 10 feet, North 30 feet and South 30 feet, he having purchased the same under a registered sale deed bearing registration No.674 of 1972-73 at pages 121-123 of book-I; subsequently he constructed a shed adding five more feet of land towards the south since the lands situated towards the south belonged to him, now the entire property which is now being sold measures 15 feet x 30 feet and the shed also measures 15 x 30 feet which is more fully described in the schedule annexed to this Indenture now the schedule property bears the Corporation No.38/2 of Bazaar Street, Neelasandra, Division No.62, the khatha of the property stands in the name of late V.Muniyappa." 18. Clearly apart from there being reference to earlier deed of sale under which the extent of 10ft x30 ft was purchased by Muniyappa there is also reference to he being owner of additional extent of land bearing site No.3 in Sy.No.118. As rightly pointed out by learned counsel for appellant Ex.D5 which is deed of sale dated 17.12.1966 executed by one Mohanlal in favour of Muniyappa conveying an extent of 92 ft x - 14 - HC-KAR NC: 2026:KHC:9069 RFA No. 862 of 2009 30 ft. The said property bears site No.3 forming part of Sy.No.118. 19. There is no dispute of the fact that Muniyappa being the owner of both extent of properties namely 10ftx30ft purchased from one Jagadambal under Ex.D49 and another extent measuring 92ftx30ft purchased under Ex.D5 from one Mohanlal. Even as admitted by the defendant in the written statement at paragraph 6 as already noted above defendant also claimed the title over other portion of property through and under said Muniyappa, purportedly he having conveyed three portions to an extent of 10 ft x 30 ft in favour of children of defendant No.1 under deed of sale dated 23.04.2001. 20. It is not the case either of the plaintiff or of the defendant of each one encroaching upon others portion. Admittedly there is a passage existing between property of plaintiff and the property of defendant. They are aware that their respective properties are situated adjacent and abutting to each other. 21. The specific allegation of plaintiff is that defendant attempted to interfere with the possession of plaintiff claiming that plaintiff had occupied more than what he was entitled to. - 15 - HC-KAR NC: 2026:KHC:9069 RFA No. 862 of 2009 The trial Court has accepted the contention of the defendant merely reading into Ex.P1 and Ex.D49 and has lost sight with regard to the right, title and interest acquired by Muniyappa under Ex.D5. It is not the case of the defendant that neither Muniyappa nor his legal representatives had not acquired any right over the remaining extent of the property. There cannot be any such submission either inasmuch as even defendant derived right, title and interest through legal representatives of Muniyappa. As such, plaintiff, in the considered view of this Court has established his right, title and interest over the suit property. 22. As regards the possession, paragraph 6 of the deposition of DW1 categorically evidences the fact of plaintiff being in possession of the property, portion of which is extracted hereunder: "6. I am running a hotel…………..The plaintiff has been in possession of the suit schedule property since about 10 years as per my estimation…….." 23. As seen in the certified copy of the plaint in O.S.No.6715/2006 filed by the legal representatives of - 16 - HC-KAR NC: 2026:KHC:9069 RFA No. 862 of 2009 defendant, they have also admitted existence of the shops forming part of suit schedule property much prior to plaintiff purchasing the same. It is also admitted plaintiff being in possession of the property atleast over ten years prior to filing of suit. In any event plaintiff being purchaser of the property in the year 1983 defendants have come into possession of the property only in the year 2001. Plaintiff has thus established not only right, title and interest but also his lawful possession. Documents produced in the nature of revenue records, tax paid receipt, photographs read in the light of deposition of the parties extracted herein above establishes the case of the plaintiff beyond any reasonable doubt of he being entitled for relief of injunction. 24. Points raised above are answered accordingly. Accordingly the following: ORDER (i) Appeal is allowed. (ii) Judgment and decree dated 17.08.2009 passed in O.S.No.7030/2004 by the trial Court is set aside. - 17 - HC-KAR NC: 2026:KHC:9069 RFA No. 862 of 2009 (iii) Suit in O.S.No.7030/2004 filed by the plaintiff is decreed as prayed for. (iv) Defendants 1(a) to (c), their representatives, agents and assigns are restrained from interfering with the plaintiff's peaceful possession and enjoyment of the suit property. No order as to costs. SD/- (M.G.S. KAMAL) JUDGE RU/SBN List No.: 1 Sl No.: 15