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2020 DIGILAW 1016 (KAR)

Gadigayya v. Fakkirappa

2020-06-09

N.S.SANJAY GOWDA

body2020
JUDGMENT N.S. Sanjay Gowda, J. - The defendants are in the second appeal. 2. The appeal is admitted to consider the following substantial questions of law. i. Whether the Appellate Court could have come to the conclusion that the defendants had succeeded in showing that they were in possession of 7 acres 20 guntas? ii. Whether the grant of injunction by the Trial Court could have been set aside by the Appellate Court, by allowing counter claim? 3. By consent, the matter was taken up for final disposal. 4. The plaintiffs preferred the suit seeking for partition and separate possession of their share in respect of suit property, which was an agricultural land bearing RS No.104 measuring 10 acres situated at Parasapur Village in Kalghatagi Taluk. 5. In the said suit, the plaintiffs by way of amendment sought to contend that they were in possession of 7 acres 20 guntas of land and defendants were in possession of the remaining portion of 2 acres 20 guntas. 6. The defendants while contesting the suit, apart from denying the claim of the plaintiffs, put forth the counter claim that they were entitled for a relief for declaration that they were the absolute owners of R.S.No.104/1, 104/2, 104/3 & 104/4, which they claimed to have acquired as their share in the partition. They also sought for a decree of injunction against the plaintiffs. 7. The Trial Court, on consideration of evidence adduced before it, proceeded to dismiss the suit against plaintiffs. The Trial Court also refused the counter claim of defendants in so far as it related to their prayer seeking for declaration. The Trial Court, however, granted the defendants, the decree of permanent injunction after recording the finding that they were in possession of 7 acres 20 guntas. 8. The plaintiffs being aggrieved by the decree of injunction granted in favour of the defendants and also being aggrieved by the denial of the declaration of their ownership, preferred an appeal in RA No.5/2006. 9. The Appellate Court on re-appreciation of the evidence, found no reasons to disagree with the finding of the Trial Court that the plaintiffs had failed to prove that they were entitled to be declared as owners and that they were in possession of the suit property and it accordingly proceeded to dismiss the appeal of the plaintiffs. 10. 9. The Appellate Court on re-appreciation of the evidence, found no reasons to disagree with the finding of the Trial Court that the plaintiffs had failed to prove that they were entitled to be declared as owners and that they were in possession of the suit property and it accordingly proceeded to dismiss the appeal of the plaintiffs. 10. The plaintiffs accepted the dismissal and chose not to prefer any second appeal. 11. The Appellate Court, while dismissing the appeal of the plaintiffs also proceeded to set aside the decree of injunction granted in favour of the defendants and thereby dismissed the entire counter claim of the defendants. 12. It is the contention of the learned counsel for the appellants that the Appellate Court while considering the Point No.2 has recorded a clear finding of fact that the defendants had succeeded in proving their possession of 7 acres 20 guntas and in the light of this finding recorded by it, the Appellate Court could not have set aside the decree of injunction granted in their favour. 13. The learned counsel for the respondents on the other hand sought to support the finding of Appellate Court and contended that there was no infirmity in the reversal of the decree of injunction granted in the favour of the defendants. 14. As could be noticed, a decree of injunction was sought for as a counter claim of the defendants. The said decree for injunction was granted by the Trial Court after recording a finding that the defendants had proved they were in possession. The said grant of injunction was challenged by the plaintiffs in appeal. The Appellate Court after re-appreciating the evidence, has recorded the following finding: "Therefore I hold that the plaintiffs failed to prove that they are in possession of 7 acres 20 guntas of land and defendants succeeded in showing that they are in possession of 7 acres 20 guntas of land but they have failed to prove their title over the said property. " 15. Thus, it is clear from the above, that the Appellate Court came to the clear conclusion that the defendants had succeeded in showing that they were in possession of 7 acres 20 guntas. " 15. Thus, it is clear from the above, that the Appellate Court came to the clear conclusion that the defendants had succeeded in showing that they were in possession of 7 acres 20 guntas. However, the Appellate Court thereafter proceeded to set aside the decree of injunction on the ground that the decree of injunction can be granted only as a consequential relief and not as an independent relief. 16. In my view, this reasoning of the Trial Court and Appellate Court are wholly erroneous. In a claim for declaration and injunction, if it is found by the Courts that the plaintiffs were not entitled for declaration but they were found to be in possession, the Courts would have the jurisdiction to grant a decree of injunction notwithstanding the fact that the plaintiffs were not entitled for declaration. In other words, the grant of decree of injunction, cannot only be granted as a consequential relief but the same can also be considered and granted independently even if the declaratory prayer was being refused. 17. I therefore answer the questions of law, in favour of the defendants-appellants and set aside the order of Appellate Court insofar as it was relates to rejection of counter claim of the defendants in respect of prayer for injunction. Consequently, the decree of the Trial Court so far as grant of injunction in favour of the defendants by way of allowing the counter claim in part is restored. The appeal is allowed.