IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF DECEMBER 2019 BEFORE THE HON’BLE MRS. JUSTICE K.S.MUDAGAL REGULAR SECOND APPEAL NO.2032/2008 (POS/INJ) BETWEEN:
1. K.NARASIMHA AGED ABOUT 68 YEARS S/O NARASIMHAIAH 2. OBLAIAH SINCE DECEASED BY HIS LR:
2(a). SHIVANANDA M.O. AGED ABOUT 52 YEARS S/O LATE OBLAIAH R/AT DOOR NO.4865/61 IN SY.NO.84, MARAGOWDANAHALLI II MAIN ROAD, MARIGUDI BEEDI NEAR P.K.S. LAUNDRY KUMBARAKOPPAL MYSORE – 570 016 …APPELLANTS (BY SRI KRISHNAMURTHY G. HASYAGAR, ADV.) AND:
1. ANIL KUMAR K.N. AGED ABOUT 22 YEARS S/O H.NARASIMHAIAH 2. KUM.SHYLASHREE AGED ABOUT 15 YEARS LATE H.NARASIMHAIAH MINOR REPRESENTED BY NATURAL GUARDIAN AND NEXT FRIEND MOTHER SMT.LAKSHMAMMA 3. SMT.LAKSHMAMMA AGED ABOUT 44 YEARS W/O LATE H.NARASIMHAIAH ALL R/AT 4685, II MAIN KUMBARA KOPPAL MYSORE 4. H.THIMMAIAH (DELETED V/O 29.01.2010) 5. H.GOVINDA AGE MAJOR 6. THIMMAKKA AGE MAJOR 7. ANKAMMA DEAD BY LRs.
7(a). GANGADHAR N.
AGED ABOUT 45 YEARS S/O LATE ANKAMMA HOUSE NO.670, METAGALLI POST BASAVESHWARA NAGAR 1ST CROSS, HEBBAL MYSORE – 570 016 7(b). SMT.GOWRI AGED ABOUT 40 YEARS W/O H.GOVINDA NO.4685, KUBARAKOPPAL MYSORE – 570 016 8. H.ANJANAPPA AGED MAJOR RESPONDENT NO.4, 5, 6, 7 AND 8 ARE CHILDREN OF LATE HANUMANTHAIAH R/O 4685, KUMBARAKOPPAL MYSORE – 570 016 …RESPONDENTS (BY SRI ARVIND REDDY H., ADV.
FOR REDDY & REDDY ASST., ADVS.FOR R1-R3, R5, R6 & R7(b); SRI S.N.BHAT, ADV. FOR R8;
R2 REPRESENTED BY HER MOTHER –R3; R7(a)- SERVED; V/O 29.1.2010 R4 DELETED; SRI D.ASWATHAPPA, ADV. FOR R5) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED:21.08.2008 PASSED IN R.A.NO.253/2004 ON THE FILE OF THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, MYSORE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 10.11.1997 PASSED IN O.S.NO.24/82 ON THE FILE OF THE II MUNSIFF AND JMFC, MYSORE.
THIS APPEAL COMING ON FOR FURTHER HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This second appeal of the defendants arises out of the judgment and decree dated 21.08.2008 in Regular Appeal No.253/2004 passed by the III Additional District & Sessions Judge, Mysore, dismissing the appeal of the appellants and confirming the judgment and decree dated 10.11.1997 in O.S.No.24/1982 passed by the II Munsiff, Mysore. By the said judgment and decree, the Trial Court in turn had decreed the suit of the respondents against the present appellants for possession.
2. Respondents are the legal representatives of one Hanumanthaiah. Ningamma, the wife of Hanumanthaiah, Narasimhaiah, Thimmaiah, Govinda, Thimmakka and Ankamma, the children of Hanumanthaiah filed O.S.No.24/1982 against the present appellant No.1 K.Narasimha, appellant No.2 Oblaiah and Anjanappa, who is arrayed here as respondent No.8. Pending this appeal, Oblaiah died and his legal representatives are brought on record. For the purpose of convenience, the parties will be referred to henceforth as per their ranks before the trial court.
3. Subject matter of the suit was the land bearing Sy.No.84/3 measuring 10 guntas situated at Maregowdanahalli, Kasaba Hobli, Mysore Taluk. The said land was shown as ‘A’ schedule property. Out of that, a portion is shown as ‘B’ schedule property consisting of vacant site in possession of the plaintiff and house in occupation of defendants.
4. The plaintiffs contended that Hanumanthaiah purchased the suit schedule property under the registered sale deed dated 05.03.1973 and he was the absolute owner of the property. They further claimed that during the lifetime of Hanumanthaiah in the year 1977, the defendants trespassed into ‘B’ schedule property forcibly and occupying two houses. Hanumanthaiah died on 10.07.1978. The plaintiffs contended that the defendants despite requests are not handing over possession of the suit property. Thus, they sought decree for possession and injunction restraining the defendants from interfering with the suit schedule properties.
5. Defendants contested the suit denying the title of the plaintiffs or Hanumanthaiah. They claimed that the property belonged to one Muniswamaiah, who had undertaken the contract of construction of Princess Krishnajammanni Sanatorium in 1940 and they claimed that Muniswamaiah purchased the property from one Narasimhegowda in 1940 and constructed a shed for storing his building materials. They contended that defendants’ father Subbaiah @ Subbudu was working as Watchman under Muniswamaiah and after retirement of Subbaiah @ Subbudu from the said Sanatorium, on his request Muniswamaiah orally sold the property to him for a consideration of Rs.90/- in 1953 and put him in possession. They claimed that since the date of the purchase, Subbaiah @ Subbudu was in possession of the property as the absolute owner and on his death, they have continued in the property. They contended that the plaintiffs’ vendor or their vendor’s vendor had no title to sell the property. They also claimed that they have perfected their title by adverse possession.
6. On the basis of such pleadings, the Trial Court framed the following issues:
“1. Whether the plaintiffs prove that late Hanumanthaiah was the absolute owner of the suit ‘A’ schedule property?
2. Whether the plaintiffs further proves that the suit ‘A’ schedule property was purchased by their father late Hanumanthaiah from one Venkataramanegowda?
3. Whether the defendants 1 and 2 prove that the vendor Venkataramanegowda had no title, interest over the suit land bearing sy.no.84/3 ie., ‘A’ schedule property?
4. Whether the plaintiffs prove that they are the absolute owners of the suit schedule property?
5. Whether the defendants 1 and 2 and others are in possession, enjoyment of the suit schedule properties in their own right and they have perfected their title by adverse possession for a period more than 30 years?
6. Whether this court has no pecuniary jurisdiction?
7. Whether the plaintiffs prove the interference of the defendants with their peaceful possession and enjoyment of the suit ‘B’ schedule properties?
8. Whether the plaintiffs are entitled for possession of ‘B’ schedule properties?
9. Whether the plaintiffs are entitled for the injunction?
10. What order?”
7. The parties adduced evidence. The trial court after hearing both side by the judgment and decree dated 10.11.1997 decreed the suit holding that the defendants have failed to prove the sale set up by them and they were the trespassers. The trial court further held that the defendants have failed to prove that they were in possession of the property since 1953.
8. The defendants challenged the said judgment and decree before the III Additional District and Sessions Judge, Mysore, in R.A.No.253/2004. The first appellate court concurring with the findings and reasonings of the trial court dismissed the appeal and further held that the claim of the defendants that they are the absolute owners of the property and they have perfected their title by adverse possession are mutually inconsistent and they are not proved.
9. Aggrieved by the said judgment and decree, the defendants are before this court in the above appeal.
10. This Court admitted the above appeal on 17.12.2008 to consider the following substantial question of law:
“Whether the courts below were justified in decreeing the suit of the plaintiffs having regard to the fact that the possession of the defendants is admitted by the plaintiffs and whether the courts below were justified in decreeing the suit of the plaintiffs for possession and injunction without there being a prayer for declaration of the title”?
11. In substance, the substantial question of law formulated is, whether the courts below were justified in decreeing the suit of the plaintiffs for possession and injunction without there being a prayer for declaration of the title?
12. Sri.Krishnamurthy G. Hasyagar, learned Counsel for the appellants/defendants seeks to assail the impugned judgment and decrees of the courts below on the following grounds:
(i) There is no dispute that the property originally belonged to one Muniswamaiah @ Muniswamy. The plaintiffs claimed title through the said Muniswamaiah but they contend that their vendor purchased from one Venkataramanegowda, who, in turn, purchased from one Kuppuswamy and not Muniswamy. The said Kuppuswamy purportedly executed the sale deed in favour of Venkataramanegowda representing himself to be the nephew of Muniswamy, which is the disputed fact. According to the defendants, they were in possession of the property since 1953. Therefore, serious cloud was cast on the title of the plaintiffs. Under such circumstances, in the absence of seeking relief of declaration, suit itself was not maintainable.
(ii) The material on record showed that the defendants were in possession since long time, but the courts below failed to appreciate that and therefore, the impugned judgment and decrees of the courts below suffer perversity;
(iii) The courts below failed to consider the point of limitation.
13. In support of his contentions, he relies upon the following judgments:
1. Laliteshwar Prasad Singh & Ors v. S.P.Srivastava (D) Tr.Lr. – (2017) 2 SCC 415 2. Gadigeppa v. Smt.Basavva Rayappa Gurlahosur – 2016 (5) KCCR 947 3. Smt.Nirmala v. Naveen Chhaggar – AIR 2007 Karnataka 40 4. Anathula Sudhakar v. P.Buchi Reddy – AIR 2008 SC 2033 5. Lingamma v. Putte Gowda – AIR 1963 Mysore 1 6. Alla Baksh v. Mohammed Hussain – 1996(2) Kar.L.J.336 7. Muddasani Venkata Narsaiah (D) Th. Lrs.
v. Muddasani Sarojana – 2016 (12) SCC 288 8. Smt.Siriyala and Others v. B.N.Ramesh – ILR 2010 KAR 2996 14. During the course of his arguments, on 14.10.2019, learned Counsel for the appellants has filed memo for formulating the following additional substantial questions of law:
“1. Having regard to the provisions of Section 6 of the Specific Relief Act, Section 27 of the Limitation Act, Article 65 of the Limitation Act and the evidence on record, whether the Courts below are justified in decreeing the suit which is barred by limitation?
2. Whether the Judgments and Decrees passed by the Courts below are vitiated for the reason that the Courts below have not considered the evidence adduced by D.W-4 recorded after the Order of remand passed in R.A.No.65/1990?
3. Whether the Judgment passed by the Lower Appellate Court can be said to be in accordance with Order 41 Rule 31 of C.P.C. and whether the same can be sustained in law?”
He claims that the aforesaid substantial questions of law also arise in the case.
15. Per contra, Sri.Arvind Reddy.H., learned Counsel for the respondents/plaintiffs seeks to support the impugned judgments and decrees of the courts below on the following grounds:
(i) Though the defendants claimed that their predecessor has purchased the property in the year 1953, they miserably failed to prove any such conveyance;
(ii) They failed to show that they were in possession since 1953;
(iii) As rightly pointed out by the first appellate court, they cannot approbate or reprobate by claiming ownership in themselves and also claiming perfection of their title by adverse possession. Therefore, that was rightly rejected;
(iv) Since there are concurrent findings of the courts below, there is no scope for interference in this appeal;
(v) Since the appellants were the strangers to the family, they have no locus standi to challenge the sale deed executed by Kuppuswamy or by his successors. Therefore, the plaintiffs were not required to seek declaration;
(vi) The additional substantial questions of law sought to be raised do not arise at all.
16. In support of his contentions, he relies upon the following judgments:
1. Anathula Sudhakar v. P.Buchi Reddy – (2008) 4 SCC 594 2. Roop Singh v. Ram Singh – (2000) 3 SCC 708 3. Karnataka Board of Wakf v. Anjuman-e- ismail Madris-Un-Niswan – (1999) 6 SCC 343 4. State of M.P. v. Dungaji – (2019) 7 SCC 465 17. There was no dispute between the parties that the property originally belonged to one Narasegowda, son of Javaregowda. It is also not disputed that the said Narasegowda sold the property to Muniswamaiah, son of Mukundappa on 04.10.1943 under Ex.D12, the certified copy of the sale deed.
18. According to the plaintiffs, Muniswamaiah died issueless and Kuppuswamy, nephew of Muniswamaiah as Class-II heir executed the sale deed in favour of Venkataramanegowda on 04.11.1968. Further, they claimed that from Venkataramanegowda, Hanumanthaiah – plaintiffs’ predecessor purchased the said property on 05.03.1972.
19. Plaintiffs themselves claim that the defendants were in possession of the property during the lifetime of Hanumanthaiah himself. During his lifetime, Hanumanthaiah did not take any steps to evict the defendants. Whereas, the defendants claimed that Muniswamaiah sold the property in their occupation to Subbudu, their predecessor in 1953 for a sum of Rs.90/- and put him in possession and since then, Subbudu and his heirs are in possession of the property.
20. In the written statement, defendants specifically contended that the property never belonged to Venkataramanegowda and he had no title to sell the property. As per plaintiffs themselves, the property was not sold to Venkataramanegowda either by Muniswamaiah or by any of his Class-I heirs. It was denied that the Kuppuswamy was the heir of Muniswamaiah.
21. Under such circumstances, a cloud was cast on the title of the plaintiffs. It is material to note that plaintiffs did not even produce their title deed or the title deeds of their vendor or vendor’s vendor. The defendants were in possession of the property. Therefore, the judgment in Anathula Sudhakar’s case applies to the case on hand. In that judgment, the Hon’ble Supreme Court while specifically dealing with the question that when one is required to seek declaration in a suit and when that is not necessary, in paras-13 and 14 held as follows:
“13. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.
13.1. Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.
13.2. Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.
13.3. Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from the defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of the plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.
14. We may, however, clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to the plaintiff's title raises a cloud on the title of the plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that the defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raise a serious dispute or cloud over the plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title.
(Emphasis supplied) 22. Thus, it was held that when the defendant is in possession and asserts title, it is incumbent for the plaintiff to seek declaration of title. Under such circumstances, the contention that the defendants had no locus standi to question the title of the plaintiff has no merit.
23. The case of the defendants did not lie under the second part of para-14 of the said judgment, which says that trespasser without any claim to title or without any apparent title if denies the plaintiff’s title, declaration need not be sought. In the light of the said judgment, other judgments relied upon by both Counsel need not be elaborated. Thus, the suit suffered the test of maintainability for not seeking declaration and the judgments and decrees of the courts below are contrary to the law laid down by the Hon’ble Apex Court in Anathula Sudhakar’s case referred to supra.
24. So far as the contention of concurrent findings, it is no doubt true that, on the question of fact wherever there are concurrent findings, the High court in exercise of its jurisdiction cannot interfere with the judgment and decree of the courts below unless perversity is shown. But at the same time, the Hon’ble Supreme Court in its judgment in Gurnam Singh (Dead) by LRs & Others –vs- Lehna Singh (Dead) by LRs. AIR 2019 SC 1441, referring to its several earlier judgments has laid down the ratio in which cases the High Court can substitute its own opinion for that of the First Appellate Court. The relevant portion of para-13.1 of the said judgment reads as follows:
“13.1 . . . . . . . . . . . . . . As per law laid down by this Court in a catena of decisions, the jurisdiction of High Court to entertain second appeal under Section 100 CPC after the 1976 Amendment, is confined only when the second appeal involves a substantial question of law. The existence of ‘a substantial question of law’ is a sine qua non for the exercise of the jurisdiction under Section 100 of the CPC. As observed and held by this Court in case of Kondiba Dagadu Kadam (Supra), in a second appeal under Section 100 of the CPC, the High Court cannot substitute its own opinion for that of the First Appellate Court, unless it finds that the conclusions drawn by the lower Court were erroneous being:
(i) Contrary to the mandatory provisions of the applicable law; or (ii) Contrary to the law as propounded by the Apex Court; or (iii) Based on inadmissible evidence or no evidence.”
(emphasis supplied) 25. Thus, it is clear that even if they are concurrent findings, the High Court can interfere with such findings, if the findings of the courts below are contrary to the mandatory provisions of the applicable law or contrary to the law as pronounced by the Apex Court or based on in-admissible evidence or no evidence.
26. In the case on hand, as already pointed out, the courts below did not examine the maintainability of the suit in the light of the law laid down by the Hon’ble Supreme Court in Anathula Sudhakar’s case. Further, though the plaintiffs based their suit on title, their original title deeds were not produced. So far as the title of the vendor of Hanumanthaiah viz., Venkataramanegowda or his vendor Kuppuswamy, neither their title deeds were produced nor they were examined before the court, though relationship between Kuppuswamy and Muniswamaiah was disputed.
27. The documents produced showed that the defendants were in possession since 1971 at least. At the cost of repetition, it has to be stated that during lifetime, Hanumanthaiah had not taken any action to evict the defendants. In such circumstances, the contention that the defendants had no locus standi to challenge the title of Hanumanaiah or his vendors has no merit.
28. Further, the above substantial question of law was formulated by this court as long back as on 17.12.2008 on hearing both sides. The courts below rejected the claim of adverse possession on the ground that defendants cannot approbate and reprobate together as they claimed the title under sale also. Therefore, the additional substantial questions of law sought to be raised at this belated stage do not deserve to be formulated. Since this court held that the suit itself was not maintainable, the question of consideration of applicability of Order XLI Rule 31 CPC also does not survive.
29. In the light of the above discussions, the courts below were not justified in decreeing the suit of the plaintiffs in the absence of prayer for declaration of their title. The substantial question of law is answered accordingly.
The appeal is allowed. The impugned judgment and decree dated 21.08.2008 in Regular Appeal No.253/2004 passed by the III Additional District & Sessions Judge, Mysore and the judgment and decree dated 10.11.1997 in O.S.No.24/1982 passed by the II Munsiff, Mysore, are hereby set aside. The suit of the plaintiffs is dismissed.
Having regard to the facts and circumstances of the case, no order as to costs.
Sd/- JUDGE KNM/-