1. This second appeal is by the defendant being aggrieved by the decree of ejectment passed against him by the Trial Court which has in turn been affirmed by the Appellate Court.

2. The Peethadipathi of Sri. Sharanabasaweshwar Samsthan, instituted the suit seeking for a decree to eject the defendant from portion of the open space bearing CTS No.1432 known as “Jatra Maidan” measuring 72’ x 42’, which was demarcated in red colour and the sketch annexed to the plaint.

3. It was contended that the plaintiff was the owner of open space bearing CTS No.1432 measuring 41593.4 sq. mtrs and the ownership was also acknowledged by the authorities by entering the name of plaintiff in CTS records. It was stated that the Jatra of Sri.Sharanabasaweshwar Sadu Maharaj was held in the month of March or April every year and during the Jatra season several persons would apply to erect their stalls in the maidan and accordingly they would be allotted space in the maidan by the plaintiff. It was stated that after the Jatra season was over, the allottees of the space used to take away their materials and would vacate the space allotted to them and it was also stated that they would take temporary electrical connections for their stalls during the said period through the electrical contractor approved by the plaintiff and the defendant was one such allottee.

4. It was stated that the defendant had taken the suit premises on license basis for three months for a licensee fee of Rs.12,000/- and had paid Rs.8,000/- on 14.04.2008 for which a receipt had also been issued. It was stated that the said license period expired on 30.06.2008 but yet the defendant had not vacated the suit space and he avoided handing over the same on one pretext or the other. 

5. It was stated that in view of the intransigent attitude of the defendant, a legal notice was issued and yet the defendant did not hand over the possession and gave an untenable reply. It was stated that the defendant did not in fact claim any right over the suit open space in his reply and he had no right to deny the title of plaintiff. It was stated that since the right of plaintiff was denied the suit was being filed seeking for ejectment.

6. The defendant entered appearance and contested the suit by filing the written statement. In the written statement, the defendant denied all the averments in the plaint and stated that the plaintiff had no title and the suit for possession was not maintainable without seeking for relief of declaration. The only contention advanced by the defendant was that he and his family members were in possession of the suit property for more than 50 years in their own right and therefore the suit was barred by limitation. 

7. The Trial Court on consideration of the pleadings and the evidence adduced before it, came to the conclusion that the suit property was in fact the property which belonged to plaintiff and the CTS record produced at Ex. P.35 indicated that ownership of the property was that of the plaintiff. The Trial Court also took note of the fact that the defendant himself lodged a police complaint vide Ex.P33, in which he admitted that he was a licensee and had paid a license fee of Rs.12,000/- and the Committee of the temple had disconnected his electricity connection and this complaint by itself established that he was only a licensee.

8. The Trial Court also took note of the fact that the official of the Survey Department had also stated that in the revenue records the plaintiff’s name had been entered as the owner. The Trial Court also held that the defendant had not established on what basis he was in possession and there was also no plea that the suit property belonged to the Corporation and therefore his assertion that the property belonged to the Corporation could not beaccepted. The Trial Court accordingly decreed the suit and directed the defendant to vacate and hand over the possession to the plaintiff within two months. The Trial Court also directed the defendant to pay a sum of Rs.34,000/- to the plaintiff for use and occupation of the premises. The Trial Court also held that a separate enquiry be held for determining the mesne profits.

9. Being aggrieved, the defendant preferred an appeal. The Appellate Court, on re-appreciation of the evidence came to the conclusion that the defendant, during the course of cross-examination had admitted that there was no entry in the records indicating that the suit property was either the property of the Government or that of the Corporation, the plea of the defendant was untenable. It also noticed that the defendant admitted in his crossexamination that in the complaint at Ex.P33 lodged by the defendant, he had not stated that the disputed property belonged to the Corporation or the Government.

10. It also took note of the fact that the defendant admitted in his cross-examination that he did not claim title over the suit property and that the suit property was a part of the Jatra Maidan and during the city survey conducted in the year 1976-77, the classification of lands as a Government or Corporation or private had been made by the authorities and insofar as the CTS records, the name of plaintiff had been entered in respect of the suit property.

11. The Appellate Court also took note of the fact that DW.5, the witness examined on behalf of defendant also admitted that permission was granted by the plaintiff in the Jatra Maidan for erection of stalls and he stated that he was not aware as to whether in the year 2008 similar permission had been granted to the defendant.

12. The Appellate Court taking note of the above evidence and also taking into consideration the fact that the defendant did not put forth the plea that he was the owner and did not state in what capacity he was in possession of the suit property and his prayer to dismiss the suit could not be entertained.

13. The Appellate Court observed that Exs.P9 to 12 proved that the suit property was not the property of the city Corporation and it was the part of Jatra Maidan, which belonged to the plaintiff and the Trial Court was therefore justified in decreeing the suit and accordingly, proceeded to dismiss the appeal and confirmed the decree of ejectment passed by the Trial Court.

14. Being aggrieved by these concurrent judgments, the present second appeal has been preferred.

15. Learned counsel for the appellant contended that the plaintiff was not at all the owner of the suit property and that the suit property actually belonged to the Corporation. He submitted that since the plaintiff was not the owner of the property, both the Courts had seriously erred in granting a decree of possession in favour of the plaintiff.

16. Learned counsel also contended that when the defendant had denied the title of the plaintiff, the Trial court would not have entertained the suit for possession as there was no prayer for declaration of title. He submitted that the denial of title by the defendant amounted to a cloud being cast on the title of the plaintiff and it was therefore incumbent on the plaintiff to have sought for a declaration. He, therefore, submitted that the impugned decrees could not be sustained.

17. Learned counsel for the respondent/plaintiff supported the judgments of the Courts below and contended that there was no infirmity in the reasoning of both the Courts. He submitted that both the Courts had recorded a clear finding of fact that the defendant had no right to be in possession and the records clearly indicated that the suit property belonged to the plaintiff and therefore, the decrees passed by the Courts could not be found fault with.

18. He also submitted that merely because the defendant denied the title that did not require the plaintiff to seek for a declaration and in fact, the very decision relied upon by the defendant indicated that if a trespasser without any claim to title or an interloper without an apparent title merely denied the plaintiff’s title, that would not amount to raising a cloud over the title of the plaintiff and it would not be necessary for the plaintiff to seek for declaration and therefore, the entire argument of the counsel for the appellant was misconceived.

19. As already stated above, the averments in the plaint were that the suit property i.e, CTS.No.1432 belonged to the plaintiff and a portion of it had been permitted to be occupied during Jatra season by the defendant by collecting a licence fee. However, the assertion that the plaintiff possessed title was denied and, in this appeal, it is strenuously contended that the property in question belonged to the Corporation and therefore, the Courts below could not have decreed the suit. 

20. As noticed by both the Courts, in the CTS records, the name of the plaintiff has been entered as the owner of the suit property bearing CTS No.1432, of which a portion is the suit property. Admittedly, the defendant does not set up title in himself and merely claims that his family was in possession for more than 50 years. In the absence of any legal right put forth by the defendant to be in possession, the defendant cannot contend that he is entitled to be in possession and deny the right of the owner of the property to seek for a possession.

21. As noticed by the Appellate Court as well as by the Trial Court, the complaint lodged by the defendant complaining of an attempt to dispossess him contains the following statement which reads as follows:

"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

22. As could be seen from the said statement, the defendant admits that he had erected a tin shed for the purpose of running his sugarcane juice stall and he was paying a sum of Rs.12,000/- every season. He has also categorically admitted that a month ago the Committee of the Temple had got the electricity disconnected and he had got the same restored. This averment clearly indicates that the defendant admitted that he was a licensee under the plaintiff, and he had got the electricity disconnected. This averment coupled with the fact that the defendant did not choose to put forth any plea in his written statement as to who was the owner of the property, clearly and conclusively indicates that the plaintiff had inducted the defendant into the premises as a licencee and was therefore, entitled to seek for recovery of possession.

23. As far as the averment that the plaintiff did not have title and the property belonged to the Corporation. It is to be noticed here that the plaintiff had instituted a suit in O.S.462/1985 against the Corporation seeking for an injunction in respect of the erection of a compound wall in its property bearing CTS.No.1432. The judgment rendered in the said suit is produced as Ex. P-9. A perusal of the said judgment indicates that the Corporation did not deny the fact that the CTS records reflected the name of the plaintiff. More importantly, it admitted that the father of the plaintiff had applied to the Town Planning Authority for issuing a commencement certificate to construct the compound wall around the property bearing CTS No.1432 and the Town Planning Authority after making enquiry had in fact overruled the objections raised by the Wakf Committee and had approved the plan submitted by the plaintiff’s father and had issued the commencement certificate.

24. It was also stated that the plaintiff’s father had filed an application before the Corporation seeking for permission and permission had also been granted on 22.10.1983. In my view, this defence of the Corporation in O.S.No.462/1985 clearly indicates that the Corporation did not dispute the ownership of the plaintiff over CTS No.1432 and it had in fact admitted that it had granted permission to the plaintiff’s father to erect a compound wall enclosing CTS No.1432.

25. It may also be pertinent to state here that the suit filed by the plaintiff in O.S.No.462/1985 was also decreed holding that the Corporation could not have issued a notice to stop further construction on the ground that the period stipulated in the permission had expired. In fact, the Trial Court restrained the Corporation from demolishing the compound wall already constructed in CTS No.1432 and from causing any interference in the further construction of the compound wall as per the plan approved by the Town Planning Authority. This judgment, therefore, clearly indicates that the title of the plaintiff was never in doubt vis-à-vis the Corporation and the argument of the appellant’s counsel would not hold water.

26. It may also be pertinent to state here that the plaintiff had in fact filed another suit in O.S.No.476/1985 against the Corporation seeking for a decree of injunction to restrain the Corporation from constructing latrines upon any portion of plaintiff’s property CTS.Nos.1431 and 1432 and also the adjoining space situate at Brahmapura, Kalaburagi, and the space lying towards North of plaintiff’s building bearing No.10-653. In this suit, the plaintiff contended that he was the owner in possession of land bearing Sy.No.25, CTS No.1431 and open space bearing CTS No.1432 apart from the building bearing municipal No.10-653. In the judgment which is produced as Ex.P10, it is recorded by the Trial Court as follows:

In response to the service of summons, the defendant appeared before the Court through its learned counsel submitted the written statement under Order 8 Rule 1 of the CPC stating that the plaintiff is owner and possessor of the land Sy.No.25, bearing CTS No.1431 and open site bearing CTS No.1432 and building bearing municipal number 10-653 all situated at Brahmpur Gulbarga is not disputed.”

27. As could be seen from the above, in the suit which had been filed against the Corporation, the Corporation itself admitted that the plaintiff was the owner of land bearing Sy.No.25, CTS No.1431 and also more importantly the open space bearing CTS No.1432, which was the entire extent of land out of which the suit property formed only a portion.

28. In the light of this clear admission of the plaintiff’s title by the Corporation, the entire argument of the defendant that CTS No.1432 was the property of the Corporation will have to necessary fail having regard to the fact that the suit property forms a portion of CTS No.1432. In fact, the argument that the suit property belonged to the Corporation will have to be rejected in its entirety and it will have to be held that the suit property was indeed the property of the plaintiff. 29. The arguments that by virtue of the denial of the title of the plaintiff by the defendant a cloud over the plaintiff’s title had been raised and this therefore required a declaratory decree to be sought for by the plaintiff cannot also be accepted.

30. As noticed above, the defendant did not set up a title in himself in his written statement and it was only during the course of his evidence that an attempt was made to put-forth the case that the Corporation owned the suit property. 31. As already held above, the Corporation itself admitted that CTS bearing No.1432 in its entirety belonged to the plaintiff. As rightly pointed out by the learned counsel for the respondent, the Apex Court in the case of Anathula Sudhakar Vs. P.Buchi Reddy (Dead) by LRs and Others, has clearly held that it would not be necessary for the plaintiff to seek for a declaration, if the defendant did not disclose his right or title which raised a serious doubt about the plaintiff’s title there is no need for the plaintiff to seek for declaration. The Apex Court paragraph No.17(d) of its judgment has stated that the persons having clear title and possession suing for 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 over the property in question and it was incumbent upon the Courts to use its discretion carefully to identify cases where it will enquire into title was unnecessary.

32. In my view, since the defendant did not set up a title in himself and the Corporation to whom attributed a title conceded the title of the plaintiff, there was absolutely no need for the plaintiff to seek for declaration. This attempt by the defendant to set up title in the Corporation is a clear attempt to expand the scope of the litigation and thereby continue in possession. It is therefore clear that the defendant is a person who is raising an unethical plea only to prolong his possession by any means possible, I am therefore of the view that there is absolutely no merit in this second appeal and at any rate there is absolutely no question of law, much less the substantial question of law arising for consideration in this second appeal. The second appeal is accordingly dismissed.

33. I am also of the view that having regard to the manner in which the appellant has attempted to deliberately raise unethical pleas to protract his possession, it would be appropriate to impose costs of Rs. 25,000/-.