IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10th DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN REGULAR SECOND APPEAL No.2407/2011 (M-INJ) BETWEEN:
1. P.H.SUBHASH S/O LATE S.R.HALAPPA, AGED ABOUT 59 YEARS, 2. P.H.SHEKAR S/O LATE S.R.HALAPPA, AGED ABOUT 54 YEARS, WORKING AT M/S VIKRANT TYRES LTD., METAGALLI ROAD, MYSORE.
BOTH APPELLANTS ARE PRESENTLY RESIDING AT ANEKONDA, DAVANAGERE TALUK.
…APPELLANTS (BY SRI B.S.RAGHUPRASAD, ADV.,) AND:
1. K.V.NAGABHUSHANA SETTY S/O LATE KASI VENKATA SETTY, AGED ABOUT 79 YEARS, NEAR SANTHE HONDA (SOUTH EAST CORNER) CHITRADURGA.
2. P.H.MURIGENDRAPPA SINCE DEAD BY LR’S a) SAROJAMMA DEAD BY LRS 2(b) & 2(c) b) P.M.DHRUVA KUMAR AGED 44 YEARS C/O PADMAMBA SETTY, B.D.ROAD, CHITRADURGA.
c) PRABHAVATHI S/O LATE MURIGENDRAPPA, AGED 46 YEARS, PRESENTLY R/AT NEAR 1ST BUS STOP, VIDYANAGAR, DAVANAGERE.
…RESPONDENTS (BY SRI KESTHUR N.CHANDRASHEKAR, ADV., FOR R1 R2(a)-DEAD, REP. BY R2(b & c) R2(b)-SERVED, UNREPRESENTED R2(c)-APPEAL DISMISSED FOR DEFAULT V/O DT:12.04.19) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CIVIL PROCEDURE CODE, AGAINST THE JUDGMEN AND DECREE DATED 27.07.2011 PASSED IN R.A.NO.86/2007 ON THE FILE OF THE I ADDL. SENIOR CIVIL JUDGE, CHITRADURGA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 3.10.2007 PASSED IN O.S.NO.393/1997 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN) & JMFC, CHITRADURGA.
THIS REGULAR SECOND APPEAL COMING ON FOR FURTHER HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed by the appellants/defendants being aggrieved by the judgment and decree passed by the Prl. Civil Judge (Jr.Dn.) & JMFC, Chitradurga (hereinafter referred to as the “trial Court”) in O.S.No.393/1997 dated 03.10.2007 and the same was confirmed by the I Addl. Senior Civil Judge, Chitradurga, (hereinafter referred to as the “first Appellate Court) in R.A.No.86/2007 dated 27.07.2011.
2. Heard the learned counsel for the appellants and the learned counsel for respondent No.1.
3. The status of the parties before the trial Court is retained for the sake of convenience.
4. The plaintiff/respondent No.1 filed a suit before the trial Court seeking permanent injunction restraining the defendants from interfering with peaceful possession and enjoyment of the suit schedule property, more fully, described in the schedule, which was enjoyed by the plaintiff by obtaining order in his favour from the Court. Subsequently, the suit came to be amended with a prayer from permanent injunction to mandatory injunction seeking direction to the defendants to place the plaintiff back in possession of the suit schedule property and prayed for the reliefs.
5. Pursuant to the notice, the defendants appeared before the trial Court and filed the written statement by denying the averments made in the plaint as false and taken the contention that the suit is barred by limitation. The suit schedule property and other half portion in the same building originally belonged to father of the defendants and they jointly succeeded to the same after the death of their father Halappa. The other adjacent half portion was in possession of first defendant as per the arrangement made among the defendants, in spite of their differences to partition the entire building according to their 1/3rd share for each of the defendants. The plaintiff was the tenant in the suit schedule premises. The defendants could not partition the entire building. As they wanted to start their separate business in two portions and for residential use also, they had filed eviction petition against the plaintiff in HRC No.18/82 and the same was allowed and in the revision, it was set aside on some technical and some discrepancies in the evidence. The defendants could not file revision before the High Court and they decided to disposes the plaintiff putting forth their difficulties after partition of their shares. But in the meanwhile, the first defendant and children under emergent circumstances of their own filed a suit for partition of their 1/3rd share in the entire building in O.S.No.109/1997. In view of filing of the said suit, the defendants along with one Sri C.T.Jayanna and Sri T.Rudrappa approached the plaintiff in the month of August, 1997 and expressed their difficulties. The plaintiff upon their request agreed to vacate the same in the month of January, 1998 itself and that he will shift business to his brother Srinivas Setty’s premises. In view of the said promise given by the plaintiff, they compromised O.S.No.109/1997. In the meanwhile, the Deputy Commissioner, Chitradurga, and City Municipality, Chitradurga, got published notification in respect of widening of the roads in the month of October-November, 1997, this includes Bangalore- Dharwad road also. The measurement of this road was fixed to 80 feet on either side of the existing road from the centre. It was further notified that the building situated within the said measurements shall be removed by their respective owners; otherwise the Government itself will take demolition process. That about 40 feet of the said building was coming within the said measurement under the Notification and red marks put on the suit building. In the last week of November, 1997, the concerned authorities of Chitradurga started to remove the encroachment on B.D.Road. That during the process, the front portion and sajja portion of the suit building and adjacent building were also razed and front doors were damaged and premises were exposed. The walls and roof became cracked here and there endangering to live in the same. Under the circumstances, the plaintiff abruptly called upon the defendants and once for all voluntarily vacated the suit premises on 01.12.1997 and handed over the vacant possession of the same to the defendants for their use and occupation. As confidence was developed, these defendants did not insist for any document. Accordingly, defendants were in joint possession and enjoyment of the property after vacating the suit premises by the plaintiff. It is also contended by the defendants that after obtaining the final decree in the partition suit, he got exclusive possession over the property and got constructed north south wall in between the first defendant’s portion and the suit building, there left a passage of about 3 ½ feet east west and north south through the premises. That after removal of some frontal projections and main doors by the Government authorities, the defendants have removed the front portion of the building to some extent like other building owners have done. Since September, 1998 defendant Nos.2 and 3 have joined with Sri Narayana Rao Sindhe and they are carrying utensils business jointly in front portion as partners under the name and style of M/s Satyanarayana Metal Stores. They invested huge amount in their business. If the suit is decreed, defendant Nos.2 and 3 and the said partner will be put to greater hardship. The plaintiff is not entitled for injunction without possession. Hence, prayed for dismissal of the suit.
6. Based on the rival pleadings, the trial Court framed the following issues:
1. Whether the plaintiff proves that he is in lawful possession and enjoyment of the suit?
2. Whether the plaintiff proves the alleged interference by the defendants to his lawful possession and enjoyment of the suit schedule property?
3. Is plaintiff entitled to the relief of permanent injunction?
4. To what order or decree?
7. Subsequently, the plaintiff filed I.A.No.7 under Order 6 Rule 17 of CPC seeking amendment to the plaint as well as prayer, which came to be allowed. The same was challenged before the trial Court in CRP.No.55/2001 and the same was ended in finality. Thereafter, the plaintiff got amended the suit and thereafter, additional issues were also framed as under:
Additional Issues:
1. Whether plaintiff proves that he entitles mandatory injunction relief as prayed for?
2. Whether defendants prove that the suit is bared by limitation?
3. Whether the plaintiff proves that after filing of the suit the defendants taking advantage of the plea of widening the road forcibly taken the possession of the suit schedule property?
4. Whether the defendants prove that the plaintiff has voluntarily vacated and handed over the possession of the suit schedule property on 1st December, 1997?
5. Whether the plaintiff is entitled for the possession of the suit schedule property by way of mandatory injunction?
8. To substantiate the contention, the plaintiff examined himself as PW.1 and examined one more witness as PW.2 and got marked 2 documents as Exs.P.1 and P.2 and on behalf of the defendants, examined three witnesses as PWs.1 to 3 and marked 14 documents as Exs.D.1 to D.14.
9. After considering the evidence on record, the trial Court answered issue Nos.1, 2 and additional issues Nos.1, 3 and 5 in affirmative and additional issue Nos.2 and 4 in negative and ultimately, decreed the suit vide judgment dated 03.10.2007. Assailing the same, the defendants filed RA.No.86/2007 before the first Appellate Court. The first Appellate Court after considering the evidence on record dismissed the appeal by confirming the judgment and decree passed by the trial Court vide judgment dated 27.07.2011. Assailing the same, the defendants are before this Court by way of this second appeal.
10. Learned counsel for the appellants/defendants has strenuously contended mainly on the point that the suit for possession is bared by limitation. After the amendment brought by the plaintiff in his suit, initially the suit was filed for bare injunction under Section 38 of the Specific Relief Act. The defendants’ contention is that on 01.12.1997 itself the plaintiff vacated the premises and handed over the possession to the defendants and the date of cause of action arose on 08.12.1997, but in fact, as on the date of filing of the suit, the plaintiff was not in possession and enjoyment of the suit schedule property. Even the interim order obtained by the plaintiff in his suit also clearly goes to show that the prayer was only for the defendants not to demolish the property other than the marked portion that itself goes to show that as on the date of filing of the suit, the plaintiff was not in possession and enjoyment of the suit schedule property. Such being the case, knowingly, the plaintiff vacated and dispossessed the suit schedule premises and not chosen to seek possession of the premises and required to seek amendment within six months from the date of dispossession as per Section 6 of the Specific Relief Act.
Even though, the amendment was allowed by the trial Court, which was ended in finality, the amendment cannot revert back to the date of filing of the suit. I.A.No.7 was filed on 11.07.2000 under Order 6 Rule 17 r/w Section 151 of CPC for amendment, which came to be allowed on 13.11.2000. Even the defendants in the written statement which was filed on 08.01.1999 have stated about the dispossession of the suit schedule premises by the plaintiff. Such being the case, the plaintiff ought to have converted the suit seeking possession by filing the amendment application, but it was not done. The application was filed after 1½ years after filing the written statement and more than 2½ years from the date of filing the suit, which is barred by limitation. Therefore, both the trial Court as well as the first Appellate Court not considered all these aspects. Even though, additional issue No.2 was framed by the trial Court, but it was held that the suit is within the time of limitation. Article 64 of the Limitation Act is not applicable in the case on hand. Therefore, prayed for allowing the appeal.
11. Per contra, learned counsel for respondent No.1/ plaintiff has supported the judgment of the both the court below and contended that the findings of both the courts below cannot be interfered with. As per Article 64 of the Limitation Act, 12 years is the period of limitation for seeking possession of the suit schedule premises. Such being the case, the suit got amended in the year 2000, which is within 12 years of limitation. Therefore, both the trial Court as well as the first Appellate Court appreciated the evidence on record and decreed the suit. Hence, there is no substantial question of law involved in this appeal and prayed for dismissal of the appeal.
12. Learned counsel for respondent No.1/plaintiff has relied upon the decision of the Hon’ble Apex Court in the case of Nair Service Society Limited Vs. K.C.Alexander and Others reported in AIR 1968 SC 1165.
13. Upon hearing the arguments of learned counsel for both the parties, the only substantial question of law arises for consideration before this Court is:
“Whether the suit of the plaintiff is barred by limitation in view of Section 6 of the Specific Relief Act and whether both the courts below committed error in allowing the suit?”
14. On perusal of the record, it is not in dispute that the plaintiff was a tenant under the defendants prior to filing of the suit. HRC No.18/82 was also filed by the defendants against the plaintiff, which came to be allowed. Thereafter, in the revision, it was set aside and attained finality. However, from the evidence on record as on the date of filing of the suit, the plaintiff averred in the plaint that cause of action arose on 08.12.1997 for filing the suit. Admittedly, the plaintiff filed a suit for bare injunction for restraining the defendants from demolishing the suit schedule premises and from interfering with the peaceful possession and enjoyment of the suit schedule premises. The averments made by the plaintiff in paragraph No.4 of the plaint goes to show that the defendants are attempting to demolish the suit schedule property and they have removed the main doors of the suit schedule property on 08.12.1997. The same was admitted by the plaintiff who was examined as P.W.1 and the plaintiff in his cross examination admits that as on the date of filing of the suit, the plaintiff himself left the suit schedule property. The suit schedule property was demolished for the purpose of widening of the road. The plaintiff also not disputed that the widening of the road took up by the Municipal Corporation. The written statement was filed by the defendants on 08.01.1999, whereas the submission made by the defendants is that the suit schedule property was vacated and handed over the possession by the plaintiff in the month of December, 1997 itself and also he has submitted that the very portion of the wall including the doors were removed by the authorities. In support of their evidence, defendant No.2 examined himself as D.W.1 and also produced the documents especially Ex.D4 is the public notification issued by the Municipal Corporation on 04.12.1997. The paper publication as per Ex.D5 was made by the authorities for removing the encroachment for widening of the road. Exs.P.6 and P.7 dated 18.12.1997 and 29.12.1984 were issued by the Government for taking the action in accordance with law for widening of the road. Ex.D8 is Form ‘A’ which goes to show that the defendant Nos.2 and 3 joined with Sri Narayana Rao Sindhe and they are carrying utensils business jointly in front portion in the name and style of “M/s Satyanarayana Metal Stores”. P.W.1 himself admitted that the authorities removed the goods by demolishing the doors of the suit schedule property. The interim order passed by the trial Court reads as follows:
“ORDER Heard Sri C.S.Kireeti Setty, Advocate for the plaintiff. Perused the plaint, I.A.1, the memo of facts, I.A.No.II and accompanying Affidavit and the documents. Satisfied with the reasons to grant an Ex-parte Temporary Injunction against the defendant restraining from demolishing the remaining portion of the schedule premises excluding the portion of the premises ordered to be demolished by the Government or the authority found in encroachment since the issuance of notice at the first instance would defeat the object of granting the relief. Hence, an Ex-parte Temporary Injunction as observed above is granted till filing of the written statement and objections by the defendant.
Compliance of Order 39 Rule 3 of CPC by 11.12.1997”.
15. The very reading of the order passed by the trial Court on 10.12.1997 goes to show that the injunction was granted against the defendant not to demolish the remaining portion of the schedule premises including the portion of premises ordered to be demolished by the Government or the authorities found any encroachment, which clearly go to show that the plaintiff in view of demolishan of doors and front wall has vacated the premises prior to filing of the suit on 10.12.1997. Whether the plaintiff was either dispossessed by the defendant forcibly or the plaintiff voluntarily vacated the premises? But the fact remains that the plaintiff was dispossessed from the suit schedule premises as on the date of filing of the suit.
16. It is worth to mention Section 6 of the Specific Relief Act, which reads as follows:
“6. Suit by persons dispossessed of immovable property (1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.
(2) No suit under this section shall be brought-
(a) after the expiry of six months from the date of dispossession; or (b) against the government.
(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.
(4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof”.
17. On bare reading of Section 6 of the Specific Relief Act clearly indicates recover possession thereof, notwithstanding any other title that may be set up in such suit. As per Sub-section 2 of Section 6 of the Specific Relief Act no suit shall be filed after the expiry of six months from the date of dispossession. As per Sub-section 4 of Section 6 of the Specific Relief Act nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.
18. The contention of the plaintiff is that for filing the suit for recovering the possession Article 64 of the Limitation Act shall apply for 12 years. In this regard, he relied upon the judgment of the Hon’ble Apex Court in Nair Service Society’s case for taking the possession where limitation is 12 years. There is no dispute in this regard. However, the suit of the plaintiff for bare injunction was filed in the 1997 and subsequently, the application was filed for amendment by the plaintiff on 11.07.2000 after more than 2 ½ years from the date of filing of the suit. The amendment came to be allowed on 13.11.2000 though it ended in finality, but where the amendment once allowed, it revert back to the original date of filing of the suit and with regard to cause of action, learned counsel for the appellant/defendant brought to the notice of this Court the judgment of the Hon’ble Apex Court. The amendment though it was allowed, but it cannot defeat the valuable right accrued to the defendant by way of limitation. In support of his contention, he relied upon the judgment of the Hon’ble Apex Court in the case of Shiv Gopal Sah alias Shiv Gopal Sahu Vs. Sita Ram Sarangi and Others reported in AIR 2007 SCC 1478, wherein at paragraph Nos.11 and 12 it is held as under:
“11. We have gone through the amendment application carefully where we do not find any explanation whatsoever for this towering delay. We would expect some explanation, at least regarding the delay since the delay was very substantial. The whole amendment application, when carefully scanned, does not show any explanation whatsoever. This negligent complacency on the part of the plaintiffs would not permit them to amend the plaint, more particularly when the claim has, apparently, become barred by time.
12. It is quite true that this Court in a number of decisions, has allowed by way of an amendment even the claims which were barred by time. However, for that there had to be a valid basis made out in the application and first of all there had to be bona fides on the part of the plaintiffs and a reasonable explanation for the delay. It is also true that the amendments can be introduced at any stage of the suit, however, when by that amendment an apparently time barred claim is being introduced for the first time, there would have to be some explanation and secondly, the plaintiff would have to show his bona fides, particularly because such claims by way of an amendment would have the effect of defeating the rights created in the defendant by lapse of time. When we see the present facts, it is clear that no such attempt is made by the plaintiffs anywhere more particularly in the amendment application”.
19. In another judgment in the case of Vishwambhar and Others Vs. Laxminarayan (dead) through LRs., and Another reported in (2001) 6 SCC 163, the Hon’ble Apex Court though held that the amendment though properly made cannot relate back to the date of filing of the suit and cure the defect of limitation where the amendment changed the basis of the suit itself, the suit would be taken to have been filed on the date of the amendment for the purpose of limitation. In another judgment in the case of K.Raheja Constructions Limited and Another Vs. Alliance Ministries and Others reported in 1995 Supp (3) SCC 17, the Hon’ble Apex Court at paragraph Nos.3 and 4 held as under:
“3. Shri Santosh Hegde, learned Senior counsel for the petitioners, has contended that the petitioners have not come forward with any new plea. They have set out all the material allegations and their claims in the plaint. What they are seeking for is only a formal relief which, though not originally asked for, the omission does not preclude the petitioners to file the application under Order 6 Rule 17 seeking for the amendment of the plaint. The relief is really founded upon the facts set out in the plaint and it is the subsequent knowledge about permission granted by the Charity Commissioner for alienation, which required the amendment. We find that the contention is not tenable.
4. It is seen that the permission for alienation is not a condition precedent to file the suit for specific performance. The decree of specific performance will always be subject to the condition to the grant of the permission by the competent authority. The petitioners having expressly admitted that the respondents have refused to abide by the terms of the contract, they should have asked for the relief for specific performance in the original suit itself. Having allowed the period of seven years to elapse from the date of filing of the suit, and the period of limitation being three years under Article 54 of the Schedule to the Limitation Act, 1963, any amendment on the grounds set out, would defeat the valuable right of limitation accruing to the respondent”.
20. In view of the judgment of the Hon’ble Apex Court in the above said judgments, the application filed by the plaintiff for amendment in the year 2000 is barred by limitation as per Section 6 of the Specific Relief Act. The contention of the counsel for respondent No.1 cannot be acceptable that 12 years limitation is available for the plaintiff to recover the possession, which is applicable to only filing of the suit for declaration of title as well as recovery of possession thereof. Section 6 is a substantive law, which prescribes the limitation for recovery of possession. Such being the case, the plaintiff ought to have filed a suit for mandatory injunction within six months from the date of his dispossession either atleast from the date of filing of the suit or at most after filing of the written statement by the defendants. But amendment filed by the plaintiff was allowed by the trial Court that itself cannot accrue right to the defendant by way of limitation. Therefore, in my considered opinion, though the concurrent findings of both the court below cannot be interfered with, but on the point of limitation both the court below have committed error in decreeing the suit of the plaintiff, since the plaintiff already dispossessed the suit schedule premises as on the date of filing of the suit and he has not chosen to file the suit within six months as per Section 6 of the Specific Relief Act. Therefore, the substantial question of law is answered in favour of the defendants and against the plaintiff. In view of the same, judgment and decree of both the court below are liable to be set aside.
21. Accordingly, the appeal is allowed. The judgment and decree passed by the Prl. Civil Judge (Jr.Dn.), Chitradurga, in O.S.No.393/1997 dated 03.10.2007 and the judgment and decree passed by I Additional Senior Civil Judge, Chitradurga, in R.A.No.86/2007 dated 27.07.2011 are hereby set aside.
SD/- JUDGE PB