B.S. Nagendra vs Navarathanmal and Others

Anand Byrareddy, J.

These appeals coming on for orders regarding filing of paper books, the appeals could be disposed of on a preliminary consideration.

In that, appeal in RFA No. 88/2010 is preferred by the plaintiff against a dismissal of the suit for declaration, injunction and possession. It was the case of the plaintiff that he was the absolute owner of the suit property therein by virtue of a sale deed dated 18.2.1982 and sought for consequential relief of declaration, to declare that the sale deed dated 16.5.1997 executed by the defendant No. 1 in favour of defendant No. 2 was null and void. He also sought for the relief of mandatory injunction, directing the defendant No. 2 to demolish the structures put up on the schedule property and to deliver physical possession of the same and to restrain defendant No. 2 from alienating the suit property.

The suit property was a site bearing No. A-5 carved out of land bearing survey number 31 of Bhoopasandra Village measuring 60 feet x 40 feet. The plaintiff claimed that his father late B. Seshagiri Rao was the absolute owner of land bearing survey number 31 of Bhoopasandra Village in all measuring 4 acres 6 guntas and it was purchased by him from one H.N. Venkatappa under a sale deed dated 26.5.1974 and that he enjoyed the property till his death. The father of the plaintiff is said to have died in the year 1989.The area where the land was situated, fell within the jurisdiction of a notified area of Hebbal. The RTCs were therefore not continued either in the name of the plaintiff''s father or the name of the plaintiff. On the demise of his father, the plaintiff approached the authority of the notified area to seek entry of his name in the records in respect of the schedule property, but the authority refused to receive taxes from him and his name was also not entered in the records.

It is alleged that the plaintiff noticed that some persons were trying to put up construction over the land, claiming title over the property on the basis of the sale deed said to have been executed by one Malleswaram Tailoring Co-operative Society Limited. The plaintiff therefore carried out a search and noticed that, on the basis of an alleged power of attorney said to have been executed by his father in favour of the Society, certain sale deeds had been executed. According to the plaintiff, his father never executed any power of attorney and he had already filed a suit challenging the execution of sale deed as well as the power of attorney, in a civil suit bearing O.S. No. 5934/1999 apart from seeking other reliefs. The said suit was pending before the City Civil Court, Bengaluru. It was further alleged that there was an order of status quo granted in that case and on the basis of a representation made by the defendants, the Court had directed the defendants to put up construction. The plaintiff claimed that the defendant No. 1 was a stranger and that he had no right to execute any sale deed in favour of the defendant No. 2.The power of attorney was also alleged to be a forged document and that the defendant No. 2 had managed to obtain khata from defendant No. 3 and also got the building plan sanctioned and was proceeding with the constructions. It is in this background, claiming that the sale deed between defendant No. 1 and defendant No. 2 was null and void, the plaintiff was before the Court below. The defendants having served summons, failed to appear.

The Trial Court had framed the following issues:

"(1) Whether the plaintiff proves his title over the suit schedule property and possession thereon as alleged in the plaint?

(2) Whether the plaintiff further proves that the second defendant has put up structures in the suit schedule property illegally and it requires demolition as alleged in the plaint?

(3) Whether the plaintiff further proves that there is an attempt of alienation or encumbering the suit schedule property by the second defendant as alleged?

(4) Whether the plaintiff further proves the alleged attempt of putting up further constructions in the suit schedule property by the second defendant as alleged?

(5) Whether the plaintiff is entitled for relief of declaration as claimed?

(6) Whether the plaintiff is entitled for mandatory injunction as claimed?

(7) Whether the plaintiff is entitled for permanent injunction against second defendant as prayed? (8) To what order/decree?"

Thereafter, the Trial Court proceeded to dismiss the suit on two grounds. Firstly, the suit for declaration was barred by limitation. In that, the sale deed said to be challenged was of the year 1992 and the suit was filed in the year 2002 and hence held that in view of the law of limitation providing a period of three years from the date of knowledge of the cause of action to file a suit, it was held that the suit was barred by limitation. Secondly, the Court below had held that the plaintiff, not having produced the subsequent sale deeds which were referred to by the plaintiff himself, the plaintiff had failed to prove the pleadings and therefore, has rejected the suit.

The learned counsel Shri Ananthakirshna Murthy would submit that insofar as the reasoning of the Court below that the suit was barred by limitation, is erroneous on the face of it as the sale deed that was sought to be challenged, was between strangers and the plaintiff was not a party to the same and therefore, to hold that the plaintiff ought to have challenged the sale deed within three years from the date of its execution, when it is only in retrospect that he had learnt of the sale deed having been executed and by accident, it cannot be said that the suit was barred by limitation. Secondly, it is pointed out that insofar as the opinion of the Court below that the plaintiff ought to have produced other sale deeds to which he was not party, is an unfair ground on which the suit had been dismissed and especially when the suit was not contested by the defendants and further the learned counsel would submit that the plaintiff had partly tendered evidence and in the absence of the plaintiff being given an opportunity to lead further evidence even after it was warranted that the plaintiff made a further search and produces other sale deeds, which would affect his right over the suit property, that liberty has been lost. Therefore, seeks that the appeal be allowed and the judgment be set aside and the matter be remanded for a further consideration.

Insofar as the appeal in RFA No. 89/2010 is concerned, it is by the same plaintiff as in RFA No. 88/2010.The grievance was that several unknown persons apart from the defendants, had put up hutments over the suit property which is a land bearing survey number 31 of Bhoopasandra Village, Bangalore North Taluk and as morefully described in the suit schedule. The suit was therefore filed under Order I Rule 8 of the Code of Civil Procedure, 1908 (hereinafter referred to as ''the CPC'', for brevity), in a representative capacity. The defendants had remained ex parte. The procedure contemplated under Order I Rule 8 of CPC was followed and there was no representation on behalf of any persons claiming interest over the suit property. However, the Court below had held the issue framed as regards, whether the suit under Order I Rule 8 of CPC is maintainable in favour of the plaintiff in the affirmative but however dismissed the suit on other issues framed. The issues framed were as follows:

(1) Whether the suit under Order I Rule 8 of CPC, by the plaintiff is maintainable?

(2) Whether the plaintiff is entitled for the relief of declaration?

(3) Whether the plaintiff is entitled for the relief of mandatory injunction for removal of sheds?

(4) What decree or order?

Though inexplicably it is pointed out that issue No. 1 having been held in favour of the plaintiff, in later part of the judgment, the Court below has opined that the suit was not maintainable under Order I Rule 8 of CPC and has summarily dismissed the same. It is this which is under challenge.

The learned counsel Shri Ananthakrishna Murthy would opine that from the reading of the Karnataka Amendment to Order I Rule 8 of CPC, where there are numerous persons having the same interest in one suit, one or more of such persons may, with the permission of the court, sue or be sued, or may defend, any such suit, on behalf of or for the benefit of all persons so interested. This would clearly indicate that opinion formed in the first instance by the Court below that such a suit was maintainable, could not have been negated in the later part of the judgment. There is an obvious error committed by the Court below. Hence, in the above circumstances, both these appeals which are heard together, are allowed. The respective judgments of the Court below are set aside. The matters are remanded for a fresh consideration after issuance of fresh summons to the defendants and full opportunity shall be given to the appellant to proceed with the suits, in the interest of justice.

Miscellaneous Civil No. 4102/2010 in RFA No. 88/2010 and Miscellaneous Civil No. 4101/2010 in RFA No. 89/2010 seeking for temporary injunction do not survive for consideration and are accordingly disposed of.