Lalit Kumar and Others vs Shanta and Others

B.V. Nagarathna, J.—1. Plaintiff No. 1 in O.S. No. 621/1989 has preferred this second appeal, assailing judgment and decree passed in RA No. 97/1992 by Second Additional Civil Judge (Sr. Dn.) at Dharwad dated 27.03.2002 by which, judgment and decree dated 24.08.1992 passed in O.S. No. 621/1989 by Principal Munsiff Court at Dharwad, has been set aside by allowing the appeal and dismissing the suit filed by plaintiffs.

For the sake of convenience, parties shall be referred to, in terms of their status before the trial Court.

Plaintiff No. 1 is the son of plaintiff No. 2. They filed the suit seeking a declaration that they are the owners of encroached area and they sought possession of said portion with mesne profits. They also sought a direction to the defendants not to proceed with the construction work on the encroached portion shown in C.T.S. map filed along the plaint and a further direction to the respondents to demolish the construction put up therein and hand over vacant possession thereof to the plaintiffs. Future mesne profits were sought from defendants from the date of suit till the recovery of possession of the encroached area.

It is the case of plaintiffs that C.T.S. No. 157/1/MF belongs to plaintiff No. 1 and C.T.S. No. 131/4A/MF belongs to plaintiff No. 2. The said suit items are situated at Dharwad and are shown in the map produced along with plaint. C.T.S. Nos. 132/2 and 160/3/A1 are adjoining properties, which are owned by defendants. According to plaintiffs, encroached portion is shown by letters ABCD and CDE measuring about 1198 feet in suit properties. According to plaintiffs, two items of suit properties are possessed jointly by plaintiffs and they have common interest thereon. Apprehending encroachment upon the suit properties by defendants, plaintiffs got a survey of suit properties done on 29.12.1981. It was found that there was an encroachment made by defendants to an extent of 1198 sq.ft. i.e., 1078 sq.ft. in C.T.S. No. 157/1/MF and 120 sq.ft. in C.T.S. No. 131/4A/MF. Plaintiffs called upon the defendants to hand over vacant possession of encroached area. Defendants refused to do so. On the other hand, they were making preparation to put up construction on the encroached portion. Hence, suit for declaration, possession and perpetual injunction was filed.

On being served with suit summons and Court notices, defendants No. 1 and 2 appeared, engaged their counsel and filed their common or joint written statement denying the averments made in plaint or the fact that they had encroached to an extent of 1198 sq.ft. in plaintiffs'' property. According to them, there is a compound wall since time immemorial and defendants are in possession of the land up till the compound wall. There is no encroachment made in the plaintiffs'' possession of the suit property. That they are in possession of property from the time their predecessors-in-title were in possession. In the same way, their predecessors-in-title were in possession and said possession has been continued even after the sale transaction. They contended that they had become owners by adverse possession. That the old compound wall was still in existence and the same was confirmed by the report of Commissioner. That the suit suffered from non-joinder and mis-joinder of necessary parties. Therefore, they sought for dismissal of the suit.

Suit was initially filed before the Court of Civil Judge and C.J.M. and later Principal Civil Judge, Dharwad, framed the follows issues for its consideration :

"1. Whether plaintiff Nos. 1 and 2 prove their ownership over the suit C.T.S. No. 157/1/1MF and 131/4A/MF respectively and that they have common interest in the suit encroached property?

Do they prove that defendants No. 1 and 2 encroached their properties to the extent of 1078 sq.ft. in C.T.S. No. 157/1/MF and 120 sq.ft. in C.T.S. No. 131/4A/MF as averred in para 2 of the plaint?

Is there a cause of action for the suit?

Are plaintiffs entitled to the reliefs prayed for in para 7 of the plaint or declaration and possession?

Are they entitled to possession or the encroached area as shown in P.T Sheet?

Does defendant prove that he and his predecessors were in possession or encroached area for more than 100 years and that they have perfected their title to the suit property by adverse possession?

Is the suit bad for non-joinder and mis-joinder of necessary parties?

What order and what decree?

ADDITIONAL ISSUE:

Are plaintiffs entitled to the relief of demolition of the encroached building?"

In support of their case, plaintiffs let in the evidence of two witnesses. Plaintiff No. 1 was examined as P.W.1. They produced four documents, which were marked as Exs. P-1 to P-4. Defendants let in the evidence of two witnesses. Defendant No. 2 examined himself as D.W.1. They produced six documents, which were marked as Exs. D-1 to D-6. On the basis of said evidence, trial Court answered issues No. 1 to 5 and additional issue No. 9 in affirmative, and issues No. 6 and 7 in negative, and decreed the suit of plaintiffs by holding that plaintiffs are entitled to possession of 1195 sq.ft. area after demolishing and removing the structure over the encroached portion. With regard to mesne profits, trial Court held that a separate enquiry under Order XX Rule 12 of the Code of Civil Procedure, 1908 (hereinafter referred to as ''C.P.C, for brevity) shall be made.

At this stage, it is relevant to note that when the matter was pending before the trial Court, plaintiff No. 2 died and her name was deleted from the array of parties by order dated 31.10.1991.

Being aggrieved by the judgment and decree of trial Court dated 24.08.1992, defendants preferred R.A. No. 97/1992 before the First Appellate Court, which, on hearing the learned counsel for parties framed the following points for consideration :

"1. Whether the sister of the plaintiff No. 2 is a necessary party to the present suit?

Whether the plaintiffs prove the encroachment by the defendants in their property to the extent of 1198 sq.ft. ?

Whether the plaintiffs are entitled for the reliefs claimed?

Whether interference in the judgment and decree of the learned trial Court is necessary?

What order or decree?"

It answered points No. 1 and 4 in the affirmative, points No. 2 and 3 in the negative and allowed the appeal by dismissing the suit filed by plaintiffs by its judgment and decree dated 27.03.2002.

Being aggrieved by the judgment and decree of First Appellate Court, plaintiff No. 1 has preferred this second appeal. This appeal was admitted on 10.03.2005 to consider the following substantial questions of law :

"1. Whether the First Appellate Court was justified in reversing the finding given by the trial Court holding that the evidence of P. W.2 cannot be looked into having regard to the proceedings in the case?

Whether the First Appellate Court having held that the suit was for removal of encroachment, was justified in holding that the suit was bad for non-joinder of sister of the plaintiff?"

I have heard learned counsel for appellant and learned counsel for respondents and perused the material on record. During the course of his submissions with reference to substantial question of law No. 1, appellant''s counsel pointed out that First Appellate Court was not right in eschewing the evidence of P.W.2 by holding that the said evidence could not be looked into and thereby dismissing the suit of plaintiffs by allowing the appeal. He contended that P.W.2 is the City Surveyor. He let-in his evidence before the trial Court. Defendants did not cross-examine him. Trial Court took into consideration evidence of P.W.2 and granted a decree in favour of appellant - plaintiff First Appellate Court without going through the order sheet simply concluded that the evidence of P.W.2 was incomplete as he was not cross-examined, and therefore, his evidence could not be looked into. While drawing my attention to the order sheet of the trial Court, he contended that when the matter was before the trial Court where the suit was filed, after P.W.2 let-in his evidence by way of examination-in-chief defendants did not come forward to cross-examine him. The trial Court held that cross-examination was taken as ''Nil''. An application (I.A. No. V) was filed seeking recall of P.W.2. Trial Court granted permission on payment of cost of Rs. 25/- to P.W.2. Thereafter, no steps were taken by defendants to cross-examine P.W.2. In the circumstances, trial Court was justified in looking into the evidence of P.W.2, as was forthcoming in the examination-in-chief and by taking note of the other evidence on record decreed the suit. But the First Appellate Court did not appreciate the fact that defendants did not come forward to cross-examine P.W.2 and for that reason plaintiffs cannot be made to suffer. He contended that substantial question of law No. 1 must be answered in favour of appellant by holding that evidence of P.W.2 could not have been eschewed by First Appellate Court and thereby reversing the decree of trial Court.

As regards substantial question of law No. 2, learned counsel for appellant contended that the said question would also have to be answered in favour of appellant for the simple reason that defendants did not give any details as to why the suit was bad for non-joinder of necessary parties in the written statement. No evidence was let in on that aspect of the matter before the trial Court. No doubt plaintiff No. 2 died, but plaintiff No. 2 was deleted at the instance of plaintiff No. 1. That was also not objected to by the defendants. After the suit was decreed contention regarding the non-joinder of sister of plaintiff No. 1 was taken up as a serious matter before First Appellate Court. The said Court on considering said contention held that the suit was bad for non-joinder of sister of plaintiff No. 1 in the array of parties as plaintiff, and therefore, on that score it set aside the judgment and decree of trial Court. In this regard, he contended that the sister of plaintiff had, in fact, filed a suit against plaintiff No. 1, her brother, seeking partition and separate possession of joint family properties including suit schedule property and a compromise was entered into in O.S. No. 70/1993, which was filed by sister of plaintiff No. 1 as against plaintiffs. In the said compromise, suit schedule property has fallen to the share of plaintiff No. 1. Therefore, non-array of sister of plaintiff No. 1 in the suit has now become an academic matter, and hence, substantial question of law No. 2 also would have to be answered in favour of appellant by allowing the appeal.

Per contra, learned counsel for respondent defendants contended that trial Court was not right in decreeing the suit by taking into consideration inter alia, evidence of P.W.2. He contended that evidence was incomplete as P.W.2 was not cross-examined. That the plaintiffs did not keep present P.W.2 before the trial Court after the application filed by defendants (I.A. No. V) was allowed. Thereafter, matter was transferred to another trial Court and before that Court P.W.2 could not be cross-examined. Therefore, in the absence of cross-examination of P.W.2, his evidence was incomplete and could not have been relied upon. Therefore, First Appellate court, noticing this aspect rightly held that this evidence could not be considered for the purpose of granting relief by the trial Court, and it rightly set aside the judgment and decree of trial Court. Hence, substantial question of law No. 1 cannot be answered in favour of appellant.

As far as substantial question of law No. 2 is concerned, he contended that one important development during the pendency of suit would have to be considered by this Court, namely, that the sister of plaintiff No. 1 being one of the legal representatives of plaintiff No. 2, who died during the pendency of suit before trial Court ought to have been brought on record before trial Court. Thereafter suit should have been disposed of in accordance with law. By non-arraying the sister of plaintiff No. 1 as a legal representative of plaintiff No. 2, a declaratory relief has been given by trial Court in favour of plaintiff No. 1 without noticing the fact that all legal heirs of plaintiff No. 2, were not brought on record and who also had right, title and interest in suit schedule property. Therefore, while answering substantial question of law No. 2, this aspect of the matter may be taken note of.

During the course of submission, both counsel brought to may notice the further developments that have taken place before this Court by drawing my attention to order dated 11.06.2013, wherein on I.A. No. 1/2013 filed by respondents herein, this Court had directed the City Surveyor to be appointed as a Commissioner to measure the suit properties in terms of the instructions given to by both the parties and to submit a report along with the sketch of property personally to the Court of Principal Civil Judge (Sr. Dn.), Dharwad, i.e., First Appellate Court. Further the First Appellate Court, on considering the said report, to record the evidence of City Surveyor and thereafter to submit its findings on the said report to this Court on or before 29.06.2013 along with the report. It is noted from the order sheet of this Court that the said order has been complied with by the City Surveyor, who was appointed as a Commissioner. His report was submitted to First Appellate Court and thereafter the First Appellate Court on recording the evidence of Court Commissioner passed an order on 05.10.2013 and submitted the same to this Court.

Learned counsel for appellant submitted that the order of First Appellate Court may be perused, wherein, it has been stated that there is an encroachment to an extent of 1198 sq.ft. made by defendants and that on that basis the appeal could be allowed.

Per contra, learned counsel for respondents contended that no doubt this Court had appointed the City Surveyor as the Court Commissioner to survey the suit schedule lands and submit a report to First Appellate Court. The First Appellate Court has also examined City Surveyor, but from order dated 05.10.2013 it is revealed that First Appellate Court has not given any finding with regard to the report of Commissioner. He drew my attention to the operative portion of the order of First Appellate Court and contended that the findings of Commissioners'' report have been sent to this Court along with entire records and the evidence of Commissioner. But the finding of First Appellate Court on the Commissioners'' report is conspicuous by its absence. He, therefore, contended that an important question would arise in this matter, as to whether, this Court could rely upon the order dated 05.10.2013 passed by First Appellate Court in order to come to a conclusion with regard to the extent of encroachment made by defendants.

In reply to this submission, appellant''s counsel contended that even if the First Appellate Court has not given any finding on the Commissioner''s report since the entire material is before this Court and the lower Court records are also before this Court a finding could be given by this Court itself on the report submitted by City Surveyor appointed by this Court.

In the circumstances, while learned counsel for appellant contended that the dispute between parties could be adjudicated before this Court itself, learned counsel for respondent submitted that the matter could be remanded to the First Appellate Court for the purpose of giving a finding on the report of City Surveyor.

That apart, I find that another aspect of the matter would have to be taken note of and that is with regard to the death of plaintiff No. 2 before the trial Court, consequent deletion of plaintiff No. 2 from the array of parties without bringing on record her legal representatives and suit being decreed in favour of plaintiff No. 1. In that regard it is noted that plaintiff No. 1 is seeking a declaration of ownership as well as consequential reliefs. I find that non-array of other heirs of deceased plaintiff No. 2 before trial Court has resulted in the decree being granted in favour of plaintiff No. 1 exclusively. No doubt the lis is between plaintiffs and defendants herein. But this Court must take note of the fact that there may be inter se disputes between plaintiff No. 1 and other legal representatives of deceased plaintiff No. 2. That apart, more significantly, all legal representatives of deceased plaintiff No. 2 had a right to prosecute the suit as the cause of action survived to them as they had right, title and interest in the estate of plaintiff No. 2. Non-array of all the legal heirs of deceased plaintiff No. 2 in the suit has, in fact, resulted in violation of principles of natural justice vis-�-vis those persons. It is noted that deceased plaintiff No. 2 had only one other legal heir, apart from plaintiff No. 1 i.e., the sister of plaintiff No. 1. However, with regard to the sister of plaintiff No. 1, who is stated to be the only other legal heir of deceased plaintiff No. 2, it is contended that substantial question of law has been raised. But, in view of the aforesaid narration and further discussion, I am of the view that substantial question of law No. 2 would have to be re-framed in the following words:

"2. Whether the trial Court was right in decreeing the suit in favour of plaintiff No. 1 in the absence of bringing on record all the legal heirs of deceased plaintiff No. 2 particularly, vis-�-vis suit Item No. 2, which was in the ownership of plaintiff No. 2?"

Having regard to the developments that have taken place before this Court, at the instance of respondents herein, the City Surveyor, Dharwad, was appointed as a Court Commissioner to measure the suit items and to submit his report to First Appellate Court with a direction to said Court to give its findings on said report by keeping in mind the order passed by First Appellate Court on 05.10.2013. In the light of contentions raised by learned counsel for respondents herein, I am of the view that further substantial question of law would arise in the matter, namely, Whether, in the absence of a finding given by First Appellate Court on the report submitted by City Surveyor, Dharwad, to it, there has been non-compliance of the order dated 11.06.2013 passed by this Court?''

In the circumstances, three substantial questions of law which have to be answered in this appeal are as under :

"1. Whether, the First Appellate Court was justified in reversing the finding given by the trial Court by holding that the evidence of P.W.2 cannot be looked into having regard to the proceedings in the case?

Whether, the trial Court was right in decreeing the suit in favour of plaintiff No. 1 in the absence of bringing on record all the legal heirs of deceased plaintiff No. 2 particularly, vis-�-vis suit Item No. 2, which was in the ownership of plaintiff No. 2?"

Whether, in the absence of a finding given by First Appellate Court on the report submitted by City Surveyor, Dharwad, to it, there has been non-compliance of the order dated 11.06.2013 passed by this Court?"

As far as substantial question of law No. 1 is concerned, it is noted from the order sheet of trial Court that P.W.2 let in his evidence by way of examination in chief on 05.04.1989. The cross-examination of P.W.2 was deferred at the instance of the advocate for defendant. Thereafter, the case was posted on 31.05.1989, but by then, on 27.05.1989 it was transferred from the Court of Principal Civil Judge and C.J.M., Dharwad, to Civil Judge (Jr. Dn.) Dharwad. The case was taken up on 05.09.1989 and was listed for further evidence. Subsequently, the case was listed on several dates and on 19.07.1990 the Court noted that evidence of P.W.2 is deferred and on 26.07.1990 counsel for plaintiffs as well as defendants were present. Matter was listed for evidence of P.W.2. On that day, it is recorded as under :

"S.V.P submits that he will not recall P.W.2.

S.T.P. also submits that he will also not recall P.W.2."

Post for arguments."

It is relevant to note that prior to 26.07.1990 evidence on behalf of defendants was let in and D.W.1 was examined on that date and cross-examined and D.W.2 was examined on 12.07.1990 and he was cross-examined. By then, the evidence of defendants was completed. All that remained was with regard to recalling of P.W.2 for the purpose of cross-examination. On the basis of the submission made by learned counsel for defendants and the response given by plaintiffs'' counsel, trial Court posted the case for arguments on 08.08.1990 and disposed of the matter and decreed the suit on 24.08.1992. While taking into consideration the evidence of P.W.2, First Appellate Court has noted that evidence of P.W.2 could not have been looked into for the purpose of decreeing the suit and on that basis has reversed the finding given by trial Court.

On reading of the order sheet it would clearly reveal that P.W.2 was not cross-examined before the original Court and neither was he cross-examined before the Court where the case was transferred. Transfer of case from one Court to another Court had no bearing with regard to P.W.2 not being cross-examined. The fact that an opportunity was given to defendants to cross-examine P.W.2 by allowing I.A. No. V on payment of cost of Rs. 25/- to the witness was not made use of by the defendants before the original Court. This was even prior to transfer of case. On the other hand, evidence on the side of defendants was let in before the original Court. After the case was transferred to the Court of Civil Judge (Jr. Dn.), Dharwad, at that stage also an opportunity available to defendants so as to make use of the order passed by original Court and cross-examine P.W.2. Instead a categorical and positive submission was made on behalf of defendants stating that they would not recall P.W.2. In fact, recalling of P.W.2 was at the instance of defendants and not at the instance of plaintiffs. If only the defendants had stated that they intended to cross-examine P.W.2 a direction could have been issued by the Court to plaintiff to ensure presence of P.W.2 in Court.

But, in view of the submission made by the counsel for defendants that they would not recall P.W.2, trial Court posted the case for arguments as by then defendants evidence had been recorded and it has in its wisdom taken note of the evidence of P.W.2 in the examination-in-chief along with other evidence for the purpose of decreeing the suit. Thus, opportunities available before the original trial Court as well as the Court to which the case was transferred to was not made use of by defendants. First Appellate Court, in my view, was not right in holding that the evidence of P.W.2 could not be looked into, merely because he was not cross-examined by defendants. The reason as to why he was not cross-examined by defendants had to be looked into. A reading of order sheet would clearly reveal that defendants had no intention to cross-examine P.W.2 even though their application I.A. No. V was allowed by trial Court, where the suit was originally filed. In that view of the matter, First Appellate Court was not right in eschewing the evidence of P.W.2 and on that basis holding that trial Court was not right in considering the evidence of P.W.2. Substantial question of law No. 1 would have to be answered in favour of appellant herein.

As already noted, substantial question of law No. 2 has been reframed. It is noted from the pleadings that plaintiff No. 1 claimed to be the owner of C.T.S. No. 157/1/MF while plaintiff No. 2 was stated to be the owner of C.T.S. No. 131/4A/MF. Plaintiff No. 2 died during the pendency of suit before trial Court. All her legal representatives were not brought on record. Instead by order dated 31.10.1991 she was deleted from the array of parties. Trial Court has failed to notice as to whether there were any other legal representatives of deceased plaintiff No. 2, apart from plaintiff No. 1; whether the cause of action survived to those legal representatives or not; by a simple deletion of plaintiff No. 2 from the array of parties has resulted in other legal representatives of plaintiff No. 2, being deprived of an opportunity to prosecute the suit as a legal representative of plaintiff No. 2. It may be that plaintiff No. 1 was one of the legal representative, but the trial Court ought to have enquired as to who were the other legal representatives of plaintiff No. 2 before deleting plaintiff No. 2 from the array of parties. No doubt, substantial question of law framed by this Court originally when it admitted the appeal was with regard to non-joinder of sister of plaintiff No. 1 in the array of parties having resulted in injustice caused to her, and therefore decree of suit by the trial Court being erroneous, as has been held by First Appellate Court, for the purpose of setting aside the said decree. But, as I have already narrated that issue becomes an academic one in view of the fact that plaintiff No. 2 died during the pendency of suit; right, title and interest of the sister of plaintiff No. 1 would be in terms of being a legal right of plaintiff No. 2. Defendants did not take up a contention that the sister of plaintiff No. 1 had a right, title and interest in suit properties, even as the plaintiffs contended that Item No. 1 belong to plaintiff No. 1 and Item No. 2 belong to plaintiff No. 2. There was no evidence let in to the effect that the sister of plaintiff No. 1 had an independent right, title and interest in suit properties. Therefore, trial Court was justified in holding that the suit was not bad for non-joinder of sister of plaintiff No. 1. But, First Appellate Court took that aspect into consideration and held that the suit was bad for non-joinder of sister of plaintiff No. 1. In view of there being no evidence on record to the effect that the sister of plaintiff No. 1 had any independent right, title and interest in the suit properties, her right in suit Item No. 2 is only as a legal representative of deceased plaintiff No. 2. Therefore, substantial question of law No. 2, as framed above, has to be answered by holding that non-array of sister of plaintiff No. 1 as a legal representative of deceased plaintiff No. 2 has affected her rights, and therefore, she ought to be arrayed as a legal representative of deceased plaintiff No. 2 and for that reason accordingly substantial question of law No. 2 is answered. Therefore, further directions in this regard would have to be given.

Substantial question of law No. 3 is raised with regard to the absence of any finding given by First Appellate Court on the report submitted by City Surveyor, Dharwad, who was appointed as Commissioner, by this Court, by order dated 11.06.2013. Learned counsel for respondents submitted that the direction of this Court was that First Appellate Court must submit its findings on said report to this Court. But, on a reading of the order dated 05.10.2013 it is noted that no categorical finding is given by First Appellate Court with regard to the extent of encroachment, if any, said to have been made by defendants in the suit. No doubt, at para 7 of that order, First Appellate Court has recorded that, the Commissioner has recorded that there is an encroachment, but whether the record made by Commissioner is true or not has not been discussed by First Appellate Court. Therefore, on this short point alone it must be held that the order dated 05.10.2013 passed by First Appellate Court is not in accordance with the directions issued by this Court on 11.06.2013 and substantial question of law is accordingly answered.

In the circumstances, I am of the considered view that the matter would have to be remanded to First Appellate Court for two purposes. Firstly, for the purpose of enabling the appellant herein to file an application to bring all the legal representatives of deceased plaintiff No. 2 on record and secondly, for the purpose of giving a finding on the report submitted by City Surveyor, Dharwad, appointed by this Court by order dated 11.06.2013, after hearing both sides and after giving a finding on said report of Court Commissioner. Also to reconsider the appeal and dispose it in accordance with law.

In the result, appeal is allowed in part in the aforesaid terms. The judgment and decree of First Appellate Court is set aside. Matter is remanded to First Appellate Court. R.A. No. 97/1992 is restored on the file of concerned First Appellate Court.

As the parties are represented by their respective counsel before this Court, they are directed to appear before concerned Appellate Court on 24.02.2016, without expecting separate notices from that Court. On that day or on any other day to be ordered by said Court, application to bring the legal representatives of deceased plaintiff No. 2 shall be filed and on recalling the order dated 31.10.1991 deleting plaintiff No. 2, her legal representatives shall be substituted in her place.

Having regard to the fact that suit is of the year 1983 and Regular Appeal is of the year 1992, First Appellate Court is requested to dispose of the appeal in an expeditious manner and within a period of six months from 24.02.2016.

In view of disposal of appeal, all applications and statement of objections filed in the appeal are ordered to be filed.

Parties to bear their respective costs.

Office to transmit the lower Court records to the concerned First Appellate Court, forthwith.