M. Krishna Reddy vs S.M. Narayan and Others

A.V. Chandrashekara, J.—1. This appeal is filed under Section 100 of CPC directed against the judgment and decree passed by the first appellate Court under Section 96 of CPC in R.A. No. 68/2000. The learned Sessions Judge and C.J.M. Kolar, has allowed the appeal and decreed the suit filed by the appellant-S.M. Narayan, who was the sole plaintiff in the said suit. Respondents-2 and 3 were the defendants-2 and 3 in the said suit.

Parties will be referred to as plaintiff and defendants as per their ranking in the suit.

Plaintiff chose to file a suit (O.S. No. 375/94) for the relief of permanent injunction against the defendants relating to the right of presumption. He had requested the trial Court to restrain defendant No. 1 from alienating the suit schedule property to defendant No. 2 and also to other persons by way of a permanent injunction. Schedule appended to the plaintiff is a house property with first floor, situated at IV Cross, Gowripet, Kolar Town, measuring 10.5 feet x 38 feet bounded on the east by common passage then plaintiffs house, west by Thulasamma''s house.

Two persons by name Subbaiah and Marappa were the owners of twin houses with common passage and they were brothers. The plaintiff was a tenant of the western portion. An agreement was entered into between Subbaiah and Marappa on 28.11.1990 to which defendant No. 1 was an attestor. In the said agreement, it is stated that defendant No. 1-Krishna Reddy should not alienate the schedule property to anybody other than the plaintiff. On the basis of the agreement marked as Ex. P1, plaintiff chose to file a suit against defendant No. 1 seeking permanent injunction restraining defendant No. 1 from alienating the suit schedule property to anybody other than the plaintiff.

The said suit was contested. The first defendant chose to file a detailed written statement denying all the material averments. The averment that he was an attestor to the said agreement is specifically denied. The suit is stated to be misconceived on the basis of untenable grounds. Plaintiff is stated to have inserted a condition in Ex. P1 without the knowledge of the first defendant in the agreement in order to knock off the suit property. With these pleadings he has requested the Court to dismiss the suit. On the basis of the pleadings, the following issues have been framed:

"1. Does the plaintiff proves that the 1st defendant is illegally trying to alienate the suit schedule property in favour of the defendant No. 2?

Does the plaintiff further proves that the 2nd defendant is illegally trying to occupy the suit schedule property?

Does the plaintiff further proves that, he is entitled for the relief of permanent injunction sought at the instant case?"

The plaintiff is examined as P.W. 1 and three witnesses have been examined as PWs. 2 to 4 and 12 exhibits have been got marked and defendant No. 1 has examined as D.W. 1 and 7 exhibits have been got marked. Ultimately the suit came to be dismissed by answering Issue Nos. 1 and 2 in Negative. The learned Judge of the trial Court has held that the right of pre-emption is not applicable to Kolar since it was a part of earlier Madras Presidency and dismissed the suit. The plaintiff, being aggrieved by the dismissal of his suit, filed an appeal under Section 96 of the CPC before the Civil Judge at Kolar, which came to be numbered as RA No. 68/2000. Learned Judge of the first appellate court has allowed the appeal by framing two points for consideration which as under:

"1. Whether in Ex. P1 about pre-emption right in favour of appellant/plaintiff is executable and binds respondent No. 1?

Whether the judgment and decree of the trial Court is illegal and not based upon material on record?"

The learned Judge has answered both the questions in Affirmative and ultimately allowed the appeal and thereby decreeing the suit. It is observed by the learned Judge of the first appellate Court that when a contract is executed in which no interest in presaenti is created, the rule of perpetuity has no application and such agreement is in the nature of pre-emptive right created in favour of the co-owner. Reliance is placed upon the decision of the Supreme Court in the case of Shivji v. Raghunath reported in , AIR 1997 SC 1917. They were not the owners of the respective portions at the time when Ex. P1 came into being. It is held that the trial Court was not right in dismissing the suit holding that pre-emption is not applicable to the area. Following are the substantial questions of law framed by this Court on 29.01.2016 and 12.02.2016:

"Whether the divergent judgment of the first appellate Court is perverse and illegal in ignoring the fact that the earlier erstwhile owners Subbaiah and Marappa are not made as parties to the suit filed for the relief of injunction?

Whether the suit filed by the plaintiff barred by time in view of Article 97 of the Limitation Act, 1963?"

Question No. 1:

The fact that there was an agreement between Subbaiah and Marappa is not disputed. At the time when the agreement Ex. P1 came into being neither the plaintiff nor defendant No. 1 were the owners of the respective portions. In a suit for injunction based on Ex. P1, the earlier owners are not necessary parties for effective disposal of the matter. In this view of the matter, the substantial question of law framed on 29.01.2016 is to be answered in negative.

Question No. 2:

Learned counsel for the appellant has argued that Article 97 of the Limitation Act, 1963 (for short the ''Act'') is applicable to the present case since Marappa sold the suit property in favour of the first defendant on 06.02.1993. The suit is filed on 16.12.1994. Article 97 of the Limitation Act contemplates one year. Article 97 of the Act reads as follows:

Basically the agreement was between Subbaiah and Marappa. It is true that the first defendant was also a signatory to the said agreement of sale. The main intention of Subbaiah was to retain the other portion of the property belonging to his brother and therefore Ex. P1 came to be executed. As rightly pointed out by the learned counsel for the appellant, the alienation so made by Marappa in favour of the defendant should have been challenged within one year from 06.02.1993 i.e., when the first defendant purchased the suit property from Marappa. The learned Judge of the first appellate court has relied upon the decision of Shivji''s case (supra) to hold that the agreement creates pre-emptive right in favour of the co-owner and it is enforceable on attempt being made by co-owner to alienate land to their party and that rule against perpetuity does not apply. Earlier decision of the Apex Court in the case of Rambaran Prosad v. Ram Mohit Hazra reported in , AIR 1967 SC 744 has been relied upon in Shivji''s case.

The first defendant was not a co-owner when the agreement was entered into at Ex. P1. The first defendant became the owner only when the sale deed was executed to Marappa on 06.02.1993. By virtue of alienation in favour of the first defendant, Marappa had violated the contents of the agreement Ex. P1. The decision referred to above is not applicable to the facts of this case. In fact, the learned Judge should have looked into Article 97 of the Act.

It is true that the first defendant has admitted in his evidence about the contents of Ex. P1 to which he is an attestor but that admission will not take away the binding effect of Article 97 of the Act. As on the date, when the agreement-Ex. P1 came into being, the first defendant was not at all the owner and the sale deed was executed on 06.02.1993 should have been impeached on or before 06.02.1994. But the suit came to be filed on 16.12.1994 and the plaintiff had the full knowledge of the alienation being made in favour of the first defendant contrary to the conditions of Ex. P1. In this view of the matter, the substantial question of law No. 2 is to be answered in the Affirmative. Consequently, the judgment of the first appellate Court will have to be set aside and the suit filed by the plaintiff will have to be dismissed.

Accordingly, the appeal filed under Section 100 of the CPC is allowed and the judgment of the first appellate Court passed in R.A. No. 68/2000 is set aside. The judgment of dismissal passed by the trial Court is upheld.

Parties to bear their own costs.