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Judgment
K.N. Keshavanarayana
This appeal is by Defendants-3, 5 & 7 in O.S. No. 64/1973 on the file of the Civil Judge (Sr.Dn.), Mangalore. The Respondents- 2 to 6 were Defendants -2,4,6, 8 & 9. Respondents - 1 (a) to (d) herein are the legal representatives of Robert F. D'' Souza who was the 2nd plaintiff. One Raymond Peter D''Souza was Plaintiff No, 1.
In this appeal, the appellants have questioned the legality and correctness of the concurrent judgment of the Courts below decreeing the said suit for possession of the suit schedule property.
The subject matter of the suit is property situated in Kankanady ''B'' Panchayath in Mangalore Taluk, South Kanara, comprised in Survey Nos. 70/6B, 70/9 and 70/4.'' totally measuring 19 cents with a residential building bearing House No. 4-42 assigned by Kankanady ''B'' Panchayath
The parties herein will be referred with reference to their ranking in the trial Court.
The case of the plaintiffs in brief was as under:
i) that, the 1st plaintiff and father of the 2nd plaintiff by name Luise D'' Souza as well as the husband of Defendant No. 1 and father of Defendants No.2 to 8 by name F.S. D'' Souza are brothers being the sons of one Joseph Gabriel D'' Souza, and the 9th defendant is the wife of the 2nd defendant;
ii) that the 1st plaintiff is the absolute owner of the suit schedule property which formed part of the property purchased by him under a registered sale deed dated 01.02.1936 from his father Joseph Gabriel D''Souza,
iii) that subsequently, the 1st plaintiff under registered sale deed dated 25.09.1962 purchased the Muli rights in respect of the property from one Harischandraraya and thus the 1st plaintiff is the absolute owner of the suit schedule property;
iv) chat, as the 1st plaintiff was employed in Bombay, he had permitted his brother F.S. D''Souza to reside in the schedule property along with the adjoining plots belonged to the 1st plaintiff lying to the south of the schedule property;
v) that from out of the road side plot in Survey No.74/5, an extent of 7 cents is acquired by the Government for widening of the existing road in the year 1965 and the compensation payable in respect of the said property was paid to the 1st plaintiff :
vi) that F.S. D''Souza was only a licensee in the suit: schedule property;
vii) that whenever the 1st plaintiff used to come to Mangalore from Bombay, he used to reside in the house located in the suit: schedule property as long as his brother F.S. D''Souza was alive;
viii) that the 1st plaintiff about two years ago left Bombay and settled in Mangalore;
ix) that the neighbouring property in which Luise D''Souza, the father of the 2nd plaintiff is permitted to reside, was subsequently sold to the wife of the 2nd plaintiff;
x) that after the death of F.S. D''Souza, Defendants-1 to 8 being his wife and children have continued to stay in the suit schedule property as licensees;
xi) that the 1st plaintiff under a registered settlement deed dated 01.08.1978 settled the suit schedule property in favour of the 2nd plaintiff reserving life interest in him with an authority given to the 2nd plaintiff to evict the defendants from the schedule property. Thus, the 2nd plaintiff became the absolute owner of the suit schedule property by virtue of the settlement, deed and entitled to evict the defendants'' from the suit schedule property;
xii) that by a legal notice dated 03.03.1973 the defendants were called upon to quit, and deliver the vacant possession of the suit schedule property within 15 days and though the notice was accepted by the 5th defendant, the defendants have failed to vacate the premises, that the defendants have no right to remain in the possession of the suit schedule property, as such, their continued occupation and possession is unauthorized and illegal, therefore the plaintiffs are entitled to get possession of the suit schedule property as such they are also entitled for damages from the defendants for the use and occupation of the suit schedule property.
Defendants - 3, 5 & 7 only filed their written statement. Others did not file any statement. In their written statement, Defendants - 3, 5 & 7 denied the case of the plaintiffs. Their defence were many fold. The sum and substance of their defence was as under:-
The suit schedule property along with adjoining properties belonged to Joseph Gabriel D''Souza, who had 4 sons; that Sri. Joseph Gabriel D''Souza who was a trader, was heavily indebted; that there was lot of pressure from his creditors, therefore, in order to save the property from the creditors and for the benefit of his children. Joseph Gabriel D''Souza executed a nominal sale deed in favour of the 1st plaintiff and the said sale was not intended to be acted upon and was, in fact, not acted upon, and no consideration has passed under the said sale deed; that, the sale deed was only intended to delay and defraud the creditors, as such, the sale deed is invalid one; that the transaction was only a benami transaction and it was for the benefit of the children of Joseph Gabriel D''Souza; that there was a division of properties by meets and bounds, whereunder the suit schedule property was allotted to the share of F.S. D''Gouza, as such, the defendants are in possession, of the property in their own right; that the defendants by remaining in possession and enjoyment of the property for several decades prior to the filing of the suit, have perfected their title to the property by adverse possession: that the 1st plaintiff has no right to settle the schedule property in favour of the 2nd plaintiff and that the document is neither valid nor genuine, as such, the 2nd plaintiff has not derived any right over the schedule property; that the description of the property in the schedule to the plaint is not correct; that the entire land in possession of the defendants is the land within the meaning of Karnataka land Reforms Act (for short, KLR Act) and in view of Section 4 of the said Act, the defendants are deemed tenants of the schedule property, as such, this issue has to be referred to the competent authority under the Act for adjudication; that the suit filed by the plaintiffs is not maintainable and is liable to be dismissed as there is no cause of action for the plaintiffs to file the suit.
On the basis of the pleadings of the parties, the trial Court framed the following issues: -
i) Do the plaintiffs prove that the 1st plaintiff is the absolute owner of the suit properties?
ii) Do the defendants prove that the purchase of the property by the 1st plaintiff under the documents dated 01.02.1936 and 25.09.1962 was as co-owner and whether they are entitled to claim any share''?
iii) Do the defendants prove that the sale deed dated 01.02.1986 was a benami transaction or whether it was sham, nominal and not intended to be acted upon and not acted upon?
iv) Do the plaintiffs prove that the late F.S. D'' Souza was a licensee in respect of the suit property under the 1st plaintiff?
v) Do the plaintiffs prove that they are entitled for possession of the suit property?
vi) Do the plaintiffs prove that they are entitled to damages for use and occupation of the suit property? If yes, at what rate?
vii) Do the Defendants-3, 5 and 7 prove that the document dated 25.09.1962 purporting to convey the mull right is invalid?
viii) Do the Defendants - 3, 5 & 7 prove that late F.S. D'' Souza perfected title by adverse possession?
ix) Do the plaintiffs prove that the alleged settlement deed dated 01.03.1973 valid and genuine?
x) Do the Defendants - 3, 5 & 7 prove that they are deemed tenants in respect of the suit property?
xi) What is the correct description of suit property?
xii) Is the valuation of the suit for the purpose of Court fee and jurisdiction is proper?
xiii) Do the plaintiffs prove that there is no bar of either the Karnataka Rent Control Act, 1961 or the Karnataka Land Reforms Act, 1962 for granting the reliefs to the plaintiffs?
xiv) What reliefs if any are the plaintiffs entitled to?
During the pendency of the suit before the trial Court, the 1st plaintiff died. Thereafter, the 2nd plaintiff continued the suit. During trial, the 2nd plaintiff examined himself as PW. 1 and examined three more witnesses as PWs.2 to 4 and got marked Exs. P1 to P29. On behalf of the defendants, DWs. 1 to 3 were examined and Exs D1 to D13 were marked.
After hearing both sides and on assessment of oral and documentary evidence, the trial Court by judgment and decree dated 03.10.1986 answered issue Nos. 1, 4, 5, 9, 12 & 13 in the affirmative, Issue Nos. 2,3, 7, 8 & 10 in the negative, consequently, it decreed the suit and directed the defendants to quit and deliver the vacant possession of the suit schedule property to the plaintiff. Aggrieved by the said judgment and decree. Defendants -3. 5 & 7 filed appeal in R.A. No. 174/1989 before the District. Judge. Mangalore.
The Lower Appellate Court after hearing the parties, during the course of the judgment framed the following points for consideration:-
i) Whether the suit deed dated 01.03.1979-Ex.P28 executed by Plaintiff No. 1 in favour of Plaintiff No.2 is a settlement deed or a gift deed?
ii) If suit deed dated 01.03.1973-Ex P28 is held to be a "Gift Deed'', then has it been proved in accordance with law?
iii) If suit deed dated 01.93.1973-Ex.P28 is held to be a ''Settlement Deed'', then has it been proved in accordance with law?
iv) Whether a mere suit for possession is not maintainable in the absence of declaratory relief?
v) Whether the findings rendered by the Court below on issue No.9 needs interference in appeal?
vi) Whether the findings rendered by the Court below on issue Nos. 1 to 8. 10 to 14 could be said to be arbitrary, perverse, capricious, not judicious and needs interference in appeal?
vii) What order?
On reassessment of the oral and documentary evidence, the Lower Appellate Court held that the document-Ex.P28 dated 01.03.1973 executed by the 1st plaintiff in favour of the 2nd plaintiff is a settlement deed and by virtue of the settlement deed the 2nd plaintiff is the owner of the suit schedule property, as such, he is entitled to recover the possession. In that view of the matter, the Lower Appellate Court dismissed the appeal and affirmed the judgment and decree passed by the trial Court by its judgment dated 03.01.2005. It is against the concurrent judgment of the Courts below, Defendants - 3, 5 & 7 are in appeal before this Court.
At the time of admitting the appeal this Court framed the following substantial questions of law:-
i) Whether the judgment of the Courts below are perverse and capricious due to the erroneous finding on Ex.P28 dated 01.03.1973 ?
ii) Whether the judgment and decree of the Appellate Court is perverse in mis-reading the case of the defendants?
1 have heard Sri. S. Prakash Shetty learned counsel appearing for the appellants/defendants 3,5 & 7 and Sri. Sripathi, learned counsel appearing for the respondents/plaintiffs. Perused the judgments under appeal and also the records made available.
Sri. S, Prakash Shetty, learned counsel for the appellants contended that in addition to the substantial questions of law framed by this Court at the time of admitting the appeal, few more questions of law would arise for consideration. According to him, the suit schedule property which was earlier outside the limits of the Municipality, subsequently was included within the limits of Municipal Corporation of Mangalore and this has not been considered by both the Courts below, and if this fact had been considered, it would have gone to the root of the very jurisdiction of the Court to entertain the suit, inasmuch as in the light of the prohibition contained in Karnataka Rent Control Act (for short. KRC Act)/Karnataka Rent Act (for short, ''K.R. Act"), the Civil Court had no jurisdiction to entertain the suit for possession. He also contended that the questions as to whether or not the provisions of the KRC Act was applicable to the premises in question and as to whether the Civil Court had jurisdiction to entertain the suit have not been answered by both the Courts. He further contended that as on the date of filing of the suit, the 2nd plaintiff had no right over the suit schedule property, therefore, the suit was bad for mis-joinder of parties. It is his further submission that during the pendency of the suit, the 1st plaintiff died, but no one filed application to come on record as his legal representatives, as such, the suit on behalf of Plaintiff No. 1 stood abated. Therefore, the Courts below ought to have dismissed the suit as the whole of the suit has abated since the 2nd plaintiff has not derived any title to the property. He further contended that during the pendency of the suit before his death, plaintiff No. 1 had written a letter to his Advocate, a copy of which was also sent to the trial Court, asking his Advocate to withdraw the suit as he had not authorized the 2nd plaintiff to file suit and the effect of this letter has not been properly considered by both the Courts below and in the light of this letter, the Courts below ought to have dismissed the suit, as the 1st plaintiff had no intention to pursue the suit and that he had not authorized the 2nd plaintiff to file the suit. In this regard, it is his further submission that if this letter is found to be genuine, it would go to the very maintainability of the suit and though the Courts below makes reference to this letter, have not recorded a proper finding as to its genuineness and its effect on the pending proceedings. He further submitted that the Courts below have not recorded a categorical finding regarding the title of the plaintiffs in respect of the schedule property, though in a suit, for possession based on title, the Court is under an obligation to examine the title and record a finding as to whether or not the plaintiff has proved his title to the property and it is only upon such proof of title, the question as to whether he is entitled for possession will have to be considered. According to the learned counsel, the Courts below have not properly considered the question of title of the plaintiffs as put-forth by them and in the absence of any such clear finding, the decree granted by the Courts below for possession is perverse and illegal. It is also his submission that the suit for mere relief of possession, in the absence of a prayer for declaration was not maintainable and the said aspect has not been considered by the Courts below properly. He further submitted that the Lower Appellate Court has merely considered the nature of Ex.P28 only without recording findings on other points raised for consideration. It is his further submission that the findings recorded by the Courts below that, Ex.P28 is a settlement deed and that the 2nd plaintiff has proved the execution and genuineness of Ex.P28 in accordance with law, are perverse and without any basis, as no accept able evidence has been produced by the plaintiff in this regard It is his submission that the findings recorded by the Courts below are not based on the pleadings. Therefore, he contends that the judgment of the Courts below suffers from perversity and illegality, as such, they are liable to be set aside and the suit is liable to be dismissed.
On the other hand, learned counsel for the Respondents sought to justify the judgment of the Courts below. He contended that the suit was perfectly maintainable before the Civil Court since at no point of time the plaintiffs recognized the defendants as tenants in the suit schedule property within the meaning of the KRC Act nor it was the defence of the defendants that they were in possession of the suit schedule property as tenants and that their rights are protected by the provisions of the KRC Act. It is also his submission that having regard to the various inconsistent and contradictory stand taken by the defendants setting title in respect of the property in themselves, it is not open to the defendants to contend that the suit for possession before the Civil Court was not maintainable in the light of the prohibition contained in KRC Act. It is also his submission that, even if it is accepted that, by a subsequent event the suit property has come within the limits of the Municipal Corporation by that itself the jurisdiction of the Civil Court, is not taken away, since it is not the case of any of the parties that the defendants are tenants in the suit schedule property within the meaning of KRC Act. Therefore, the subsequent event has no effect on the jurisdiction of the Court. He further contended that the very fact that, the defendants claimed tenancy rights in respect of the suit schedule property before the Land Tribunal as per the provisions of the KLR Act claiming to be the tenants thereunder, lost their claim and carried the matter right upto the Supreme Court would clearly indicate that they are not in possession of the property as tenants either as per the provisions of the KLR Act or under KRC Act therefore, the Courts below are right in holding that the Civil Court has jurisdiction to entertain and try the suit He further contended that, since the contesting defendants admitted the fact that the suit schedule property along with other adjoining properties originally belonged to Joseph Gabriel D''Souza and the sale deed in respect of the suit schedule property was executed in favour of the 1st plaintiff, it was for them to prove the defence that the said sale deed was nominal one and not acted upon, and the transaction was benami one only with a view to delay and defraud the creditors and since the defendants have utterly failed to prove any of these defences, the Courts below are right in holding that the 1st plaintiff was the absolute owner of the suit; schedule property and he had all rights to dispose of the same in any manner. He further contended that, in the light of the very specific averment made in the plaint wherein it has been categorically stated that the 1st plaintiff settled the suit schedule property in favour of the 2nd plaintiff under the registered settlement deed dated 01.03.1373 and during the trial the original settlement deed is produced and marked as Ex.P28 and the same was proved in accordance with law by examining the scribe, as both the attestors were reported to have died, the Courts below are, justified in holding that the 2nd plaintiff has proved Ex.P28 and by virtue of the same, the 2nd plaintiff is the absolute owner of the suit schedule property. It is his further submission that both the Courts in extenso have referred to the copy of the letter purported to have been written by the 1st plaintiff to his Lawyer, and the Courts below have recorded findings that the said letter is not proved to be a genuine one and even if it is genuine one, the 1st plaintiff had no stake in the matter, as such, the letter written asking his Lawyer to withdraw the suit would not render the suit not maintainable, since he had already settled the property in favour of the 2nd plaintiff by means of a registered settlement deed and therefore, the said letter has no effect on the maintainability of the suit. He further contended that both the Courts below have recorded concurrent findings that the 2nd plaintiff has proved his title to the suit schedule property and since the suit was one for possession of the immovable property based on title, there was no need for seeking the relief of declaration, as, in such a suit the Court is under an obligation to find-cut as to whether the 2nd plaintiff has title to the property and whether the right, of the 2nd plaintiff to get possession, as title holder, is extinguished by any subsequent event. In the case on hand, the defendants though put-forth the plea of adverse possession, since they have failed to prove the said plea, the Courts below are justified in law in holding that the 2nd plaintiff is entitled for possession of the suit schedule property.
According to the learned counsel, the judgment of the Courts below does not suffer from any perversity of illegality nor it calls for interference by this Court sifting in the second appeal. Therefore, he sought, for dismissal of the appeal. He further contended that the findings recorded by the Courts below with regard to the nature of Ex.P28 being a settlement deed, is not perverse nor capricious and in the light of the fact that. Ex.P28, has been affirmed by the 1st plaintiff -Executor of the document, the judgment of the Courts below granting decree for possession cannot, be termed as perverse nor as capricious, as such, the appeal has no merit and is liable to be dismissed.
I have bestowed my serious considerations to the submissions made on both sides.
As noticed supra, the undisputed facts are that, the suit schedule property originally belonged to Joseph Gabriel D''Souza, the fattier of the 1st plaintiff. Joseph Gabriel D''Souza had 4 sons, namely, Raymond Peter D''Souza (1st plaintiff), Louis D''Souza (father of the 2nd plaintiff), F.S. D''Souza (Husband, of Defendant. No.1 and father of Defendants- 2 to 8), and Mabel D''Souza, Joseph Gabriel D'' Souza, executed a sale deed in favour of the 1st plaintiff in respect of the suit schedule property and adjoining properties on 01.02.1936 marked as Ex.P1. The contesting defendants attacked the genuineness of Ex.P1 on the ground that it was a nominal one not intended to be acted upon and that it was executed by Joseph Gabrial D''Souza since he Was under great pressure from his creditors, and only with a view to delay and defraud the creditors, such a sale deed was executed. From the nature of this defence, it is clear that defendants admitted execution of Ex.P1 by Joseph Gabriel D''Souza in favour of the 1st plaintiff. Since the contesting defendants attacked Ex.P1 by putting-forth the above said defences and thereby tried to avoid the effect of Ex.P1, it was for the defendants to prove those facts. However, perusal of the judgment of the Courts below indicates that both the courts on appreciation of oral evidence placed by the parties have recorded findings that the defendants have failed to prove any of these defences. The Courts below have noticed that the contesting defendants have not placed any evidence to show that Joseph Gabriel D''Souza was heavily indebted and that there was tremendous pressure on him from his creditors. The Courts below have also noticed that in view of the fact that Joseph Gabriel D''Souza owned several other properties apart from the suit schedule property, there was no occasion for him to execute the sale deed with a view to defraud his creditors. If he really intended 1,0 defraud his creditors, he should have transferred all his properties in the name of the third parties. However, he has not done so. Therefore, the Courts below have held that the sale deed-Ex.P1 was not for defrauding or delaying the creditors of Joseph Gabriel D''Souza. The Courts below have also noticed that Joseph Gabriel D''Souza had mortgaged the property, and for discharge of mortgage debt, he sold the property to his son who was then working in Bombay and had his independent income. It is also noticed that, if the sale was for the benefit of his children, there was no need for the father to execute the sale deed in the name of one of his sons. The Courts below have also noticed that the plea of the defendants that the transaction was a benami one has also not been established. It was for the party, who alleges that the transaction was a benami one, to prove the same. However, the contesting defendants have not placed any evidence to prove the same. In that view of the matter, the Courts below have held that the 1st plaintiff was the absolute owner of the property by virtue of sale deed-Ex.P1
I have perused the oral and documentary evidence on record. Even on reappreciation of the evidence, I find no perversity or illegality in the findings recorded by the Courts below with regard to the title of the 1st plaintiff over the suit schedule property. There is absolutely no evidence placed by the defendants to show that they had any right in the suit schedule property nor they have established that they have been in possession of the suit schedule property in their own rights.
Another defence put-forth by the contesting defendants was that, there was a division of properties, wherein the suit schedule property was allotted to the share of F.S. D''Souza. However, the said plea had remained only as a plea without there being any evidence in that regard. Therefore, the Courts below have rightly negatived the said plea.
Yet another ground urged by the contesting defendants was that, they had perfected the title by adverse possession since they have been in possession of the suit schedule property for several decades. In the light of the fact that the contesting defendants tried to set-up title in themselves, it was not open to them to plead that they had perfected their title by adverse possession. In order to plead and prove the plea of adverse possession, the party will have to first admit: the opposite party as owner of the property and he has been enjoying the said property to the knowledge of the owner and adverse to the interests of such owner. In the case on hand, the contesting defendants in one breath denied the title of the plaintiffs and sought to set-up title in themselves and in the second breath, they even sought to contend that they are the tenants of the suit schedule property as per the provisions of the KLR Act and claimed such tenancy rights by filing application before the Land Tribunal and carried the matter right upto the Supreme Court, in which they failed, and in the third breath, they put-forth a plea of adverse possession. Under these circumstances, the Courts below are right in holding that it is not open to the contesting defendants to put-forth the plea of adverse possession. Both the courts on consideration of evidence have held that such a plea has not been established, the findings recorded in this regard are in accordance with the evidence on record and In accordance with the well-settled principles of law. Therefore, it does not call for interference by this Court.
The crucial point now required to be considered by this Court is as to whether the 2nd plaintiff has proved his title to the suit schedule property. As noticed supra, according to the 2nd plaintiff, the suit schedule property was settled in his favour by the 1st plaintiff under registered settlement deed-Ex.P28. No doubt, the suit was one for possession of immovable property based on title Of course, the plaintiffs did not seek for the relief of declaration. The suit for possession based on title is a larger relief than a mere relief of declaration. Whenever a suit for possession of immovable property based on title is filed, the Court is under an obligation to consider the title of the plaintiff in respect, of the property and it is only if the Court, is satisfied and records a finding that the plaintiff has proved his title to the property, then the Court will proceed to consider as to whether the plaintiff, as title holder of the property, is entitled to recover possession from the person in possession of the same. While considering the relief of possession, the Court has to consider as to whether the right of the title holder to recover possession is extinguished by any law or by any subsequent events. Therefore, there is absolutely no substance in the argument that, suit being merely tor possession is not maintainable without there being a relief of declaration. In the case on hand, both the Courts below have elaborately considered the question of title of the 2nd plaintiff over the suit schedule property and it is only after recording a finding that the plaintiffs have proved their title to the suit schedule property and after negating the plea of adverse possession put-forth by the defendants, the Courts below have held that the 2nd plaintiff is entitled to recover possession of the property from the defendants. Therefore, the suit filed for possession without seeking declaration was perfectly maintainable.
The contesting defendants of course have disputed the genuineness of Ex.P28. They have contended that the 2nd plaintiff has not acquired any title to the property by virtue of Ex.P28. They also raised a question as to whether Ex.P28 is a settlement deed or a gift deed. Of course, the dispute regarding the nature of Ex.P28 has been raised only to indicate that it is a compulsorily attestable document and such a document must be proved as per Section 68 of the Indian Evidence Act by examining atleast one of the attesting witnesses before the Court.
Insofar as the execution and genuineness of Ex.P28 is concerned, both the Courts below have considered an important factor that the 1st plaintiff himself was the executant of Ex.P28 and in the plaint there is a specific assertion on the part of the plaintiffs that the 1st plaintiff has settled the suit schedule property in favour of the 2nd plaintiff under a registered settlement deed dated 01.03.1973. Of course, the 1st plaintiff died during the pendency of the suit, as such, he has not been examined before the Court. Nevertheless, the statement made in the plaint binds the plaintiffs including the 1st plaintiff. In view of the fact that subsequently the 1st plaintiff died, as such, he was not available to give evidence before the Court, the statement made by him in the plaint has assumed greater importance. From the averments made in the plaint, ii is manifestly clear that the 1st plaintiff has admitted the execution of the settlement, deed Ex P28 in favour of the 2nd plaintiff. The 2nd plaintiff in his evidence examined as PW.1, has reiterated his stand with regard to the 1st plaintiff executing Ex.P28 in his favour. Ex.P28 was presented by the 1st plaintiff before the sub-registrar for registration and the same has been duly registered. The oral evidence on record indicates that both the attesting witnesses to Ex.P28 are dead and they are not alive. Both the Courts below accepting the oral evidence in this regard have held that none of the attesting witnesses is available to give evidence. The scribe of Ex.P28 has been examined as PW.2, who in his evidence has stated about he scribing the document-Ex.P28 on the instruction of the 1st plaintiff and then the 1st plaintiff subscribing his signature to the same; thereafter, the attesting witnesses subscribing their signatures and thereafter, the document being registered in the Sub-Registrar''s office. Though this witness has been cross-examined at length, (sic)thing has been elicited in the cross-examination to discredit his testimony. The Courts below referring to the contents of Ex.28 and the recitals found therein have held that it is a settlement deed, as there was vesting of title in the property in favour of the settlee and what was reserved by the settler is only to enjoy the income from the said property during his lifetime. The Courts below have also considered that even if this document is considered as a Gift Deed, since the document is admittedly attested by two witnesses and since none of the attesting witnesses is available to give evidence, the same has been proved by other method by examining the scribe and therefore, the 2nd plaintiff, has proved Ex.P28 in accordance with law. The finding recorded by the Courts below as to the nature of Ex.P28 having regard to the recitals found in Ex.P28 and also the oral evidence of the witnesses cannot be termed either as perverse or as capricious. There is no reason to differ from the finding recorded by the Courts below in this regard. In fact, this Court sitting in second appeal cannot reappreciate the evidence and record a different finding on questions of fact, as the finding recorded by the Courts below in this regard is not shown to be perverse nor shown to be contrary to the evidence on record. In this view of the matter, I am of the considered opinion that the finding of the Courts below that Ex.P28 is a settlement deed and execution of the same has been proved in accordance with law does not call for interference by this Court. By virtue of Ex.P28, the 2nd plaintiff has become the owner of the suit schedule property.
No doubt, elaborate submissions were made with regard to the letter purported to have been written by the 1st plaintiff to the Advocate on record before the trial Court and a copy of the same was sent to the Court, According to the defendants the said letter was written by the 1st plaintiff and the contents of the said letter would indicate that he had not authorized the 2nd plaintiff to file suit and that the 2nd plaintiff his created documents, therefore, on the basis of the said letter, the trial Court ought to have dismissed the suit. Perusal of the judgment of the Courts below belies the argument of the learned counsel for the appellants that the Courts below have not properly considered the effect of the said letter. Both the Courts below, as could be seen from the judgments under appeal, have referred to the said letter in extenso and have recorded findings thereon. Both the courts below have held that the said letter is not genuine and even if it is genuine, it has no effect on the maintainability of the suit. The said letter purported to be dated 13.01.1975 and purported to have been received by the trial Court on 15.01.1975. The 1st plaintiff admittedly died on 13.01.1978. From this it is clear that for little over three years the 1st plaintiff was alive. If really he had written the said letter, nothing prevented him from coming before the Court during that period of three years and appraise the Court as to the genuineness of any of the averments made in the plaint or the contents of Ex.P28. However, he did not do so. It is not clear as to whether this letter really bears the signature of the 1st plaintiff. Both the courts after extracting the contents of this letter, have held that it is only a letter addressed to the lawyer asking him to withdraw the proceedings on his behalf. It has to be born in mind that much prior to the date of this letter and much prior to filing of the suit, the 1st plaintiff has executed Ex.P28. It is a registered document. It is fairly well-settled that when a document compulsorily registerable is registered in accordance with law the document takes effect from the date of the execution.
Therefore, from the date of execution of Ex.P28 the 1st plaintiff had lost right, title and interest over the property. Therefore, the 1st plaintiff had no subsisting stake over the suit schedule property. Therefore, even if the said letter had been written by the 1st plaintiff, it would certainly have no effect on the right of the 2nd plaintiff in respect of the suit schedule property. Therefore, the Courts below have rightly Held that, the said letter has no effect on the jurisdiction of the Court nor regarding the maintainability of the suit. In fact, the Lower Appellate Court has observed that the trial Court ought to have ignored that letter. Even after saying so, the Lower Appellate Court extracts the contents of the said letter, considers its effect and ultimately concurred with the findings of the trial Court: that it is not genuine document. It is not proved to be a document written by the 1st plaintiff and that the contents of the said letter has no effect on the maintainability of the suit, as such, the finding recorded by the Courts below in my opinion, does not call for interference.
Yet another point urged by the learned counsel for the appellants as noticed supra was the effect of the death of the 1st plaintiff during the pendency of the suit. The Courts below on this aspect of the matter have held that the death of the 1st plain tiff has not in any way affected the continuance of the suit by the 2nd plaintiff. Both the Courts below have held that the 1st plaintiff was only a proforma party since he as the absolute owner had already settled the property in favour of the 2nd plaintiff through the registered document and therefore, he had no subsisting interest in the property and since he had a right to receive the income from the property, joined the 2nd plaintiff as a proforma party, as such, the death of the 1st plaintiff during the pendency of the suit and no one having been brought on record as his legal representative, has in no way affected the continuance of the suit. In fact the 2nd plaintiff who claims title to the property under Ex.P28 executed by the 1st plaintiff and who is already on record, in law, is entitled to be considered as a successor to the interests of the 1st plaintiff in terms of Order XXII Rule 10 of CPC. Even if it is assumed that the right of the 1st plaintiff under the settlement deed-Ex.P28 to receive the income as interest in the immovable property and since he died during the pendency of the suit, such interest devolved on the 2nd plaintiff. Therefore, the 2nd plaintiff is the successor to the interests of the 1st plaintiff, as such, the suit upon the death of the 1st plaintiff did not get abated. Even otherwise, when there are more than one plaintiff, the death of one of the plaintiffs does not result in the abatement of the whole of the proceedings Both the courts below referring to the settled precedents have held that upon the death of the 1st plaintiff the suit has not abated, as such, the finding being in accordance with law, does not call for interference by this Court. There is no substance in the contention that the suit was bad for mis-joinder of party namely, the 2nd plaintiff on the ground that as on the date of filing of the suit, the 2nd plaintiff had no right over the suit schedule property. As noticed supra, even prior to the filing of the suit, under Ex.P28 executed by the 1st plaintiff, the property had been settled in favour of the 2nd plaintiff. Therefore, as on the date of the suit, the 2nd plaintiff had acquired title over the suit schedule property, as such, he had every right to institute suit, on the other hand, it was the 1st plaintiff, who was only a proforma party and not a necessary party. In this view of the matter, I find no substance in any of the contentious urged by the learned counsel for the appellant.
The concurrent judgment of the Courts below are in accordance with law. Both the Courts below have concurrently held that the 2nd plaintiff has proved his title over the suit schedule property and possession of the property by the defendants being unauthorized, they are liable to be evicted from the suit schedule property.
In the absence of any contention on the part of the defendants that they are tenants as per the KRC Act, it is not open to them to Contend that they are liable to be evicted only in accordance with the provisions of the said Act. The defendants cannot be permitted to approbate and reprobate or to blow hot and cold in the same breath. As noticed supra, in the light of the defences put-forth by the defendants, it is not open to them to still contend that their possession is protected by virtue of the provisions of the K.R.C. Act or K.R. Act Therefore, the fact that subsequently the schedule property came within the limits of City Corporation, did not oust, the jurisdiction of the Civil Court, as such it had no effect on the jurisdiction of the Trial Court, as such, it had no effect on the jurisdiction of the trial Court. The suit being one for the relief of possession based on title and since, it is not the defence of the defendants that they are in possession of the property as tenants thereof, the jurisdiction of the Civil Court is not ousted. Therefore, there is no substance in the contention urged in this regard by the learned counsel for the appellants. In this view of the matter the Courts below are justified in directing the appellants/defendants to vacate and handover the vacant possession of the suit schedule property.
It is necessary to note here that this litigation took birth in the year 1973 and is already 38 years old. The contesting defendants who appears to be very resourceful have managed to prolong this litigation for over 38 years. They are squatting on the property without any semblance of right, over the same. They had taken all possible stands, but have failed to establish any one of them. Under these circumstances, question of granting any time to the appellants/defendants to vacate the premises does not arise. On the other hand, the appeal lacks merit and it is liable to be dismissed with exemplary cost @ Rs.3,000/-.
In view of the above discussion, I answer the questions of law framed for consideration in the negative and proceed to pass the following order:-
ORDER
The appeal is dismissed with exemplary cost, of Rs.3,000/- (Rupees three thousand only). the appellants/defendants in the suit are directed to vacate and hand over the vacant possession of the schedule property forthwith to the legal representatives of the 2nd plaintiff [Respondents - I (a) to (d)]. The legal representatives of the 2nd plaintiff are entitled to seek enquiry before the competent Court regarding mesne profits as ordered by the Courts below.