SMT. A JYOTHI v. SRI BABU ILLIAS @ ILLIYAS

CORAM: HON'BLE MS. JUSTICE TARA VITASTA GANJU ORAL ORDER

1. This Court had briefly heard the matter on 05.01.2026 and had passed the following order;

1. The present petition has been filed under Article 227 of the Constitution of India, 1950 seeking to challenge an order dated 09.03.2021 in O.S.No.7966/2019 captioned Smt. A.Jyothi vs. Sri.Babu Illias @ Illias, passed by the XLIII Prl. City Civil and Sessions Judge at Bengaluru (hereinafter referred to as “Impugned Order”). By the Impugned Order, an application-IA No.2 filed by the petitioner/plaintiff under Order VI Rule 17 of the CPC has been dismissed.

2. The respondent has been served by way of paper publication. Today none appears for the respondent. The respondent is accordingly proceeded with the exparte.

3. The principal contention of the petitioner is that he had filed a suit for injunction simpliciter in respect of the suit schedule property bearing No.117/1, Serial No.2362, Corporation Ward No.25, Bengaluru against the sole defendant. - 3 - NC: 2026:KHC:798 WP No. 5827 of 2021 HC-KAR

4. The defendant entered appearance before the learned Trial Court and in his Written Statement, stated his claim to the possession as well as ownership of the property. In addition, title of the petitioner/plaintiff was challenged.

5. The petitioner/plaintiff thereafter filed an application under Order VI Rule 17 of the CPC [I.A.No.2] seeking to amend the plaint to add the consequential relief of declaration as well as that of permanent injunction. It was stated by the petitioner/plaintiff in his application that the issue of the title is required to be adjudicated.

5.1. In addition, it was stated in the application I.A.No.2 that the suit was filed on 06.11.2019 and after filing of a suit a document dated 26.11.2019 “styled as a sale deed has been created by the respondent.”

6. This Court by its order dated 23.03.2021 while issuing notice in the matter, had directed the stay of proceedings.

7. A review of the Written Statement shows that a challenge to the title of the petitioner/plaintiff has been raised therein. The paragraph 3 of the Written Statement as is set out below: “3) The said A.Muni Reddy and M.Venkata Reddy had formed sites In the above sald land measuring 1 acre 33 guntas in Sy.No.117/1 of Horamavu Village. Both of them had sold some of the sites out of the sites formed under different registered sale deeds. After the death of M.Venkata Reddy his father Muni Reddy also sold major portion of sites - 4 - NC: 2026:KHC:798 WP No. 5827 of 2021 HC-KAR under different registered sale deeds to third parties. After the death of the said A.Muni Reddy and his son M.Venkata Reddy, the wife and children of M.Venkata Reddy had entered into agreement for sale with the defendant on 15-07-2017 In respect of site No.7 which is the suit schedule property in the present suit. Subsequently they have also given General Power of attorney to the defendant to deal with the schedule property as per the terms mentioned therein.” [Emphasis Supplied]

8. However, the learned Trial Court has rejected I.A.No.2 giving a finding that the nature of the suit will be changed if the application is allowed.

9. The learned counsel for the petitioner requests for a short adjournment to produce the orders of the Trial Court. At his request, list this matter on 07.01.2026.

2. Learned counsel appearing for the petitioner/plaintiff submits that the application, I.A.No.2, was filed prior to the commencement of the trial and, therefore, the proviso of Order VI Rule 17 of CPC would not come in the way of the allowing of this application.

3. As reproduced above, the written statement clearly sets out that the suit schedule property was sold by virtue of an - 5 - NC: 2026:KHC:798 WP No. 5827 of 2021 HC-KAR agreement entered into between the third party and the defendants. In addition, it also sets out that the defendants have been given a General Power of Attorney to deal with the schedule property.

4. The suit filed by the petitioner/plaintiff was seeking the prayer of injunction and no prayers for declaration or other consequential reliefs were sought for by the petitioner in view of the fact that title the petitioner claimed title to the property. Subsequently, the respondent / defendant laid a claim to the ownership of the suit property in his written statement. It is settled law that once there is a cloud over the title to the property, the petitioner would have to prove his title. The Supreme Court in the case of Anathula Sudhakar vs. P.Buchi Reddy and others1 has held as under: “11. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.

11.1) Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a 1 (2008) 4 SCC 594. - 6 - NC: 2026:KHC:798 WP No. 5827 of 2021 HC-KAR prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.

11.2) Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession. in addition,

11.3) Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.

12. 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 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 - 7 - NC: 2026:KHC:798 WP No. 5827 of 2021 HC-KAR injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title. Xxxx

17. To summarize, the position in regard to suits for prohibitory immovable property, is as under: injunction relating (a) Where a cloud is raised over 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 plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter…... [Emphasis Supplied]

5. The petitioner by way of the amendment application has sought the following reliefs; "APPLICATION PRESENTED BY THE PLAINTIFF UNDER ORDER VI RULE 17 READ WITH SECTION 151 OF THE CIVIL PROCEDURE CODE That for the reasons sworn to in the accompanying affidavit that this as the plaintiff above named prays Hon'ble court be pleased to permit the plaintiff to amend her plaint and incorporate the proposed amendment sought for below and dispose of the above suit on merits in the Interest of justice and equity. - 8 - NC: 2026:KHC:798 WP No. 5827 of 2021 HC-KAR PROPOSED AMENDMENT

1. To add prayer [aa] after prayer [a] at page no.5 prayer column of the original plaint. "[aa] Declare that the plaintiff is the absolute owner in possession of the suit schedule property by virtue of the registered sale deed dated 07.08.2018 executed by Sri G. Venkatesh in favour of the plaintiff and Sri S. Viswanath (since deceased] duly registered in the office of the Sub Registrar, Halasuru, Bengaluru vide Document no.HLS-1-01771/2018-19 of Book I and stored in CD No. HLSD 163."

2. To add prayer [ab] after prayer [aa] at page no.5 prayer column of the original plaint. "[ab] Declare that alleged sale deed dated

26.11.2019 alleged to have been executed by Smt N.R Kantha, Sri Kiran V. Reddy and Smt V. Geetha Reddy through their alleged General Power of Attorney holdes Sri Illiyasin favour of Srl Shaik Ibrahim, allegedly registered in the office of the Sub Registrar, Banasawadi, Bengaluru vide Document no. BNS-1-14647-2019. 20 of Book I and stored in CD No. BNSD911 dated

26.11.2015 is obtained by fraud, collusion and misrepresentation and and that the alleged vendors therein had no subsisting even further the alleged sale deed is hit by lis-pendse over the suit right, title, interest or possession property to create such a document and consequently hold that the same is not binding on the plaintiff in respect of the suit schedule property." - 9 - NC: 2026:KHC:798 WP No. 5827 of 2021 HC-KAR

3. To add prayer [ac] after prayer [ab] at page no.5 prayer column of the original plaint. "[ac] Declare that the alleged unregistered General Power have been of Attorney dated 03.10.2019 alleged executed by Smt N.R Kantha, Sri Kiran V. Reddy and Smt v. Geetha Reddy in favour of Sri Illiyas allegedly respect of the suit property is a collusive and nominal document created without having any right, title, interest or possession and has been created in violation of the provisions of the Indian Registration Act and consequently hold that the same is not binding on the plaintiff in respect of the suit schedule property."………." [Emphasis supplied]

6. The petitioner/plaintiff by the proposed amendments has sought for additional prayer of declaration that the sale deed as well as unregistered Power of Attorney executed is not binding on the petitioner. Additional reliefs were also sought by the petitioner. The petitioner had in his application clearly set out that since a cloud over the title has been created by the respondent in his written statement, the amendments are requisite. It is apposite to set out Paras 3 and 4 of the affidavit annexed along with the application below in this behalf. - 10 - NC: 2026:KHC:798 WP No. 5827 of 2021 HC-KAR “I submit that when the matter stood thus, the defendant herein on the basis of forged and fabricated records attempted to cause interference with my possession and hence I had to approach the civil court with a prayer for permanent injunction and other allied reliefs in respect of the suit property. I submit that the defendant has filed written statement and have admitted that Sri A. Muni Reddy and Sri M.Venkata Reddy were the owners of the landed property in Sy no.117/1 measuring 1 acre 33 guntas. It is further admitted that the said owners of the property had carved out sites in the said survey number and sold some of the sites under registered sale deeds. It is further contended that Sri M. Venkata Reddy died on 20.12.1989 and Sri A. Muni Reddy died on 14.08.1998. It is contended that after the death of Sri A. Muni Reddy and Sri M. Venkata Reddy, the alleged wife and children of Sri M. Venkata Reddy had allegedly executed an agreement of sale dated 15.07.2017 in favour of the defendant and defendant has allegedly taken a General Power of Attorney in his favour but I seriously dispute the agreement of sale and general power of attorney relied on by the defendant. Xxxx I submit the above defence raised by the defendant has created a cloud over my title to the suit property and the same is required to be thrashed out in a Full-fledged trial and the alleged purchaser is required to be roped in and in the said - 11 - NC: 2026:KHC:798 WP No. 5827 of 2021 HC-KAR circumstances in view of the defence set up by the defendant in the course of his written statement which was filed on 17.01.2020 I have been advised to file the annexed application and take up substantial pleas including laying a sale deed dated 26.11.2019 and also by impleading the have allegedly said Sri Shaik Ibrahim who claims purchased the suit property. I submit that it requires to be noticed that the above suit came to be filed 06.11.2019 and after institution of the suit and knowing regarding the filing of the suit a nominal and namesake document dated 26.11.2019 styled as sale deed is created. Sri Shaik Ibrahim is not a bonafides purchaser for value and he is none other than a chronie of the defendant who are a team involved in land mafia. The said sale deed is hit by lis-pendse and does not carry any value in the eye of law and the same is to be declared as such. Xxxx I submit that some of the facts now sought to be inserted in the plaint were not within my notice or knowledge prior to filing for the first time filed by statement the above suit and the same were written learnt the through the existing defendant and hence it would amount to saying on subsequent that the part of the amendment is based events that have transpired after filing of the above suit and hence I would not have sought for such reliefs earlier. …….” [Emphasis supplied] - 12 - NC: 2026:KHC:798 WP No. 5827 of 2021 HC-KAR

7. In view of what is stated above, the Trial Court’s refusal to allow the amendment would be against the tenets of law. Accordingly, the impugned order is set aside. The application under Order VI Rule 17 of CPC is allowed.

8. The amended plaint shall be filed within two weeks from today. List the matter before the Trial Court on the date already fixed.

9. The petition is disposed of in the aforegoing terms. VITASTA GANJU Location: HIGH COURT OF KARNTAKA (TARA VITASTA GANJU) JUDGE GH List No.: 1 Sl No.: 29 CT-SG