Kalavathi vs K. Vijayalakshmi and Others

Anand Byrareddy, J.

Heard the learned Counsel for the appellant and the learned Counsel for the respondents.

The appellant was the decree holder in a suit for declaration of title. The appellant had filed a civil suit in O.S. No. 2941/2009 against one Vijayalakshmi seeking a declaration of title that he is the absolute owner of property bearing site No. 45 formed in Survey No. 33, house list khata No. 812, new khata No. 810/812 of Banaswadi village, Krishnarajapuram Hobli, Bangalore East Taluk, now under the jurisdiction of the Bruhat Bengaluru Mahanagara Palike (BBMP). The site measured east to west 60 feet and north to south 20 feet bounded on the east by site No. 43, west by Gowramma''s property, north by road and south by site No. 35.

It was the case of the plaintiff appellant that the property originally belonged to one Lakshmamma, wife of Venkataswamy, who was in possession and enjoyment of a larger extent of property bearing site No. 45 in Survey No. 33 of Banaswadi village, totally measuring 95'' x 20''.

It was the further case of the plaintiff that Lakshmamma had gifted the entire larger extent of property, as aforesaid, in favour of Gowramma, wife of Siddappa and Gowramma, wife of Munisamaiah and put them in possession of the entire site property under a registered gift deed dated 25.2.1981.

It transpires that Gowramma, wife of Siddappa and Gowramma, wife of Munisamaiah had sold a portion of the site measuring 60'' x 20'', described as the suit schedule property in the suit filed by the appellant, in favour of the appellant under a registered sale deed 29.6.1992 and this was rectified under a rectification deed dated 3.8.2005. The rectification related to certain mistakes in the boundaries to the schedule property.

It was the further case of the plaintiff - appellant that Vijaya Lakshmi, respondent No. 1 herein, had made attempts to trespass and interfere with the suit property and therefore the suit in O.S. No. 6105/2005 was instituted and an interim order of temporary injunction, to maintain status quo was granted. But however, it is admitted that the plaintiff did not prosecute the said suit and it came to be dismissed for non-prosecution on 28.10.2005. It is the allegation of the plaintiff that Vijayalakshmi, taking advantage of the dismissal of the said suit, and the absence of the appellant from the suit property, had illegally trespassed and put up construction of a building and had occupied the same. The appellant then filed a comprehensive suit for declaration and mandatory injunction in the aforesaid suit in O.S. No. 2941/2009, seeking the reliefs, as already stated and sought demolition of the property and delivery of vacant possession of the property.

It transpires that the summons could not be effectively serviced on the said Viajayalakshmi inspite of best efforts of the appellant and she was set ex-parte and the court below had passed a judgment and decree in favour of the appellant dated 20.10.2011 declaring the plaintiff as the owner of the suit property and that the defendant was a trespasser, in unauthorized possession of the suit property and granted permanent injunction, restraining the defendant or anybody claiming under her, from interfering with the property. The said judgment and decree was not challenged by the defendant - respondent No. 1 herein. It is thereafter that the plaintiff is said to have taken out execution proceedings in Execution Case No. 1492/2013 and executed the decree by dispossessing the occupants. The occupants were none other than respondents 2 and 3. It is thereafter that respondents 2 and 3 had filed applications under Order XXI Rules 99, 100, 101 of the Code of Civil Procedure, 1908 (Hereinafter referred to as the ''CPC, for brevity), seeking redelivery of possession of the suit property against the appellant.

It was their case that the plaintiff had grossly suppressed the facts and circumstances and had filed a false case. It was pointed out that the property originally belonged to Lakshmamma and that Lakshmamma had acquired the same in the year 1946 as claimed by the plaintiff also However, there was no transfer, according to them, in favour of Gowramma, wife of Siddappa and Gowramma, wife of Munisamaiah, but on her demise, her three daughters, Kanthamma, Sharadamma and Suguna had divided the properties under a registered partition deed dated 6.1.2003. In the said partition, sites bearing No. 44 and 45, measuring east to west 60'' and north to south 20'', were allotted to the share of Suguna and khata was made out in her name and she had been paying the property tax to the BBMP and it was from Suguna that the first respondent Vijayalakshmi is said to have purchased the property on 5.8.2005 and thereafter, the present respondents 2 and 3 had purchased the property from Vijayalakshmi under a sale deed dated 9.10.2006. The property had been constructed upon by Vijayalakshmi and they had occupied the property. The appellant had suppressed these circumstances and even though they were in occupation of the property much prior to the institution of the suit in O.S. No. 2941/2009, the appellant did not choose to make them parties to the suit and had proceeded as if the property was still under the occupation of Vijayalakshmi and had executed the ex-parte decree against them and had removed them by force. It is in this manner that possession had been taken by the appellant and therefore it warranted the interference of the court.

It is also pointed out that the plaintiff appellant has not produced any documents pertaining to the suit property after the year 1992 and though there was a claim of the manner in which the title had been conferred on the plaintiff, there is no supplementary documents such as the khata certificate or tax paid receipts. On the other hand, even the respondents 2 and 3 and before their vendor Suguna had the necessary revenue documents, such as, the khata certificates and tax paid certificates. Further, the loan transaction created by respondents 2 and 3 in seeking to purchase the suit property was also furnished thereby indicating that the title to the property had been scrutinized by the financier and would prima facie indicate that there was no infirmity in the title claimed by respondents 2 and 3.

It is on these rival contentions, that the court below, by its order dated 28.3.2014, has concluded that the decree holder had suppressed the material facts in obtaining the decree and from an examination of the documents produced by respondents 2 and 3, it was evident that they claim better title to the suit property and accordingly, has allowed their application and directed the respondents to restore possession of the suit premises to the applicants within 30 days.

The properties consisting of two residential units are said to be vacant but in the custody and under lock and key of the appellant herein.

After having heard the Counsel for the parties, it is to be noticed that the gift deed executed by Lakshmamma in favour of Gowramma, wife of Siddappa and Gowramma, wife of Munisamaiah, in the year 1981 and the subsequent sale deed executed in favour of the present appellant in the year 1992 and the rectification deed of the said sale deed of the year 2005 have not been questioned nor have been set aside. Therefore, the said title claimed by the appellant does not stand effaced by virtue of the present respondents 2 and 3 also claiming title as aforesaid through Suguna who had acquired the property under a partition deed of the year 2003 and Vijayalakshmi who had even purchased the same under a registered sale deed and a rectification deed of the year 2005 and the present respondents 2 and 3 having purchased the property in the year 2006. And it is the said title deeds, which are require to be tested against each other in ultimately deciding whether the respondents 2 and 3 held better title to the property in question.

From a bare perusal of the order passed by the trial court, it is evident that the court below has been influenced by the fact that there are incidental documents, such as, the revenue records standing in favour of the respondents 2 and 3 and that they were in occupation of the property even prior to the filing of the suit, which has prompted the court below to hold that there was suppression of facts. It is also found that the manner in which Vijayalaskhmi was set ex-parte and the proceedings had gone on notwithstanding that the appellant claimed to have been dispossessed by Vijayalakshmi in the year 2005 and the appellant chosen to file a suit for reclaiming the property only in the year 2009 was not in keeping with the normal human conduct of a party, who has lost his property and has therefore, come to a conclusion that the application was to be allowed.

However, from a reading of Rule 101 of the CPC whether the questions to be determined and the scope of the inquiry conducted under rule 100 is widely worded and it requires the court to decide all questions including the questions relating to the right, title and interest in the property arising between the parties to the proceedings on an application under Order 97 or 99 or their representatives and relating to the adjudication of the application shall be determined by the court on filing applications and not by a separate suit and it would have jurisdiction to decide all such questions. Therefore, the scope of inquiry is much wider than the scope of inquiry in the suit that was instituted by the appellant, in that, the claim of the respondents 2 and 3 would also be treated as if it was a suit and the issues pertaining to their respective titles would be directly in question and therefore, the manner in which the inquiry has been conducted in the execution case and the impugned order, falls short of that requirement of a detailed inquiry into the claims of the respective parties.

Incidentally, it is pointed out by the learned Counsel for the appellant that the court has taken a view that the appellant has not produced any material to support his case, which may not be correct on the face of it. When the appellant was the plaintiff, who had filed several documents, which again would require to be perused if the scope of inquiry as contemplated under Rule 101 is to be kept in view.

Therefore, there is failure of justice in the court not having addressed respective claims to title by the respective parties in the proper perspective and it would be necessary for the court to reconsider the entire gamut of the issues that arises between the parties of their rival contentions with respect to their title, possession or the manner in which they have been dispossessed etc. Therefore, leaving all questions open as between the parties, the matter requires to be remanded.

Consequently, the appeal is allowed. The order under challenge is set aside. The matter is remanded to the court below for a fresh consideration on all issues that may arise between the parties. Till such time that the court should arrive at its conclusion, the property in question shall remain vacant, which the court below shall ensure.

It is also contended that respondents 2 and 3 have been dispossessed from the suit property when they were not parties to the proceedings at all and they have invested huge amounts of money which deprives all the benefit of the same and would also contend that the very claim of the appellant is false and they would not be compensated in terms of money if they are to be deprived of the property at the instance of the appellant and though the order under challenge is a considered order, since this court is remanding the matter and if the appellant should again fail in the proceedings they should be amply compensated.

Therefore, the claim for damages by the respondents 2 and 3 and the quantum thereof shall also be a question to be decided by the court below on the basis to be provided by respondents 2 and 3. It would be in the fitness of things having regard to the long drawn out litigation between the parties that a final decision be rendered in these proceedings. Therefore, the trial court is requested to endeavour to complete the proceedings within a reasonable time frame, as expeditiously as possible.