Sri Shivashankara vs Sri H P Vedavyasachar on 9 September, 2010

[Cites 30, Cited by 0]

Karnataka High Court

Sri Shivashankara vs Sri H P Vedavyasachar on 9 September, 2010

Bench: Aravind Kumar

IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 09TH DAY 01+' SEPTEMBER

BEFORE

THE HON'BLE MR. JUsTxcEAAA.RAv'1i§jj'  V

REGULAR FIRST API'EAL."1\I()7..--A. 19:6E§'O/¥.~..,20O'f'~_:AV»:":._

BETWEEN:

1 . Sri. Shivashankarar, 

Son of Late Hanumaiahj _ __ 

Hindu, aged about 54 yea'rs.'f' 

2. Sri.Sriran_1a'  "Rar1§iaIr»11'i'1'th}/A G  V

Son of Late..Ij-1ar:jtiI:1aiah.'a_V _ _
Hindu, agf?-3d a_1boiit'--V--57"'yr:f-afs»  A
Both fi19éTres.iding'1:feit  
Appurao -CroVséxR0ad,  " ' '

18% Cross. 6% Ma'mj_j,~._  _
K.G.Naga1i, Sanieera.p'u_rEg;,
Banga1ore--'55_O O18.  

  " ...Appel1ants

 A {;B3rGVsr.§,vs,G émgadhara Aithal, Adv.,)

G  edavyasa char,
_ " Sor1--..of Praneshachar,
'   about 46 years,

Residing at No.39},

  ~»v-Apptlrao Cross Road,



HISTORY OF PREVIOUS LITIGATI01}§_:. j

3. This Court by judgment and 

29.10.2007 had disposed of the appeal'   it

remanding the matter back to trial

after allowing the application--V.iiii'etd   to C' C

lead additional evideno<:e_and"perrniti:ir1g tl?1e"'ap'peilants
to lead additional  to the
respondent to§~vci'QSfS-exlamiinte  in so far as

'B' schedule p1'_o"p3eVrt'y---was'.'jCo1:.C:ern.ed'.

 1"i1i.s decree was questioned

before  Court in Civil Appeal

 2QO9V.Cbytherespondent herein and judgement

 Court on 29.10.2007 came to be

rriodifliedl  dated 3.8.2009 which reads as

' ._.under;~~-- 

  The learned. trial court npon

recording the evidence as directed

by the High Court shall transmit





the records to the first appellate
court with a copy of its report

annexed thereto;

(ii) Such an exercise by the learn¢ft1d_'__:'i'.j' 
trial court must be complieted
within a period of fou»r4we'eirs4"  
the date of commi'1nic;'aet.ior1t».of 

order;

(iii) The first appeli:ate*~..__co1ir't-.._m1i§st
dispose ' * the ;_vfirs_t..h.A"'appeal on
receipt of thie._sa,'i__d :or':'i¢";**7a_'.1.v~:._ also the

evide'1_3.cel_ 1. as ""v".jadd1ifced, as

 aswipvossible and not
0' _ lat_er:.ftha1.r'«.eight weeks from the

  date' of 're"ceipt of the said report.

  A. On'i""'ti1ese grounds, the civil Appeal

 to be disposed of by the H0n'b1e

 coiuartjf-biz order dated 03.08.2009.

0 as  60.0 On such order having been passed, the trial

--  "c;pt1'rAt has recorded the evidence of Defendant No.2 as

 nameiy by receiving aff1'.davI't in lieu of

W.



9
property was with Madhwa Sangha and Vittal Rao and

possession was delivered by Madhwa Sangha to first

appellant on 6-10-1993 and this fact is evidenced_V:byff'the

letter dated 6-1-1995 addressed by  to?' 1.

1st appellant and it is contended__tl1e_t'"accord1tf1g to 9"

plaintiff three defendants i.e.:;'ap appellants 

Mr.Hanumaiah were joint tre's'passe'rs and tl1e:1je" -being av 9

joint claim against d.efendatn--'éé\\t,.fai1iH'e to-v.1'mp:lead the
legal representatives  who died on

24-5-1998 woi_ild._ _res_1illtV"1n:  vliairviiig been abated

agaiiistlmallet as ivhole and thus it is
submitted'-that non-joinder of necessary

parties. He \_ir0'ulVd alsdsubmit that alleged trespass is

'99'v_.by-9.9..;'£11i.f"tl1e._'defendants on 25-9-1998 as per plaint

  ca.me to the knowledge of the plaintiff

 by which date Madhwa Sangha and Vittal

 Rao were already in possession and hence not making

9  *t_li'er1i parties is bad for non-joinder of necessary parties.

   Aithal would draw attention of the Court to the

®//



Ex.D.3 rectification deed dated 641-2000 as also the
sketch marked as Ex.D.9. He would SL1l)II],*'l'l;«.> that

western portion as reflected in the sketch 

only portion which is in occupation of the 

is described as 'C' schedule to 

he submits admittedly appellantl*»No.2V,l..t1ElS 

eviction petition in respectfof the He
would contend  :f.C_H'(uutl."I.)Osseslsion in the
present suit is with :»to'"'~*I.3"is-ehedule and 'A'

schedule   He would submit

that    cogent evidence and
demonstrate was in possession of 'B'

schedulellpropcrtyAlasllon 29--lO--l993 i.e., the date of

  3-.the""suit"OlSlN0.5-456/1993. He would submit

 'ili.;i5;tcA plaint filed in O.S.No.3642/1992 is to

be-..__loo_l<edll.i'into which suit was filed on ll--6~l992 and

 the schedule to the said suit and the 'C' schedule in the

l'A~_pr-e--sent suit are one and the same. He would submit

 " »~t.hat if at all plaintiff was in possession of '8' schedule

(F/.



14
property he would not have refrained himself from
stating so in the suit O.S.No.3642/1992. The actual

and physical possession of the property which 

the plaintiff has been described in  

and this clearly goes to show f:hai"'plaintiff not 

possession of 'B' schedule :propert.y';_V_A.l~le  

elaborate on this point t"oc,T'contend._l  ldolculmentll

EX.D.7 namely co'pyp_   lpletiftion i.e.,
W.P.No.24629/ 1993 would' ihidepiot..:ltliatT__'property which

was in occuipatigoii of._th::e --;31ain:tir1* ewes East to West 30'

Northilltol  atlV"paragraph 4- of the Writ
petition it is ..-the plaintiff that he is in

occupation"toV that extérlt only and as such he contends

  ii-Vreally plaintiff was in possession of the entire

   .f; . schedule

T

A' property, he would have said

 flwrit petition. According to him these

 admissions in the pleadings would clearly go to show

 plaintiff was in possession of only 'C' schedule

 " rvproperty and not 'B' schedule property and as such



prayer in the suit ought to fail. He would also submit
that. possession of the plaintiff even under the Will was
only to 'C' schedule property and not '13' 

property as contended.

14. It IS further contendledillby 

Aithal that plaintiff was notiri possession :--1:riyl'po*rtior1V >'

beyond 'C' Schedule propertyj"l»and i11.l_llof his
submission he would':dr_aw'«'thel:attelntion of Court to
EX.P.2 namely the   produced by

the plaintiff;  u}oui:iv':sﬁb:fni't"mat at the outset

plaintiff h.aslln7otvejstablished -that he was in occupation

and possession H  = yisehedule 'B' property. The

defeiida13.ts  denied that defendant was in

  _'B' schedule property. Though plaintiff

claims possession on the basis of lease--cum--will deed

 dated .. l''s.1C;1976 and when said document was sought

 lllgto produced in evidence on 8-1-2004 it came to be

--  heldllinadmissible by this Court as per order passed on

4;, ,,,, >4



1.6

8-1-2004 recorded in t.he deposition of P.W.l and said
order came to be confirmed both in W.P.No.3247'2/2004

and W.A.No.442i/2004. Against this order.._S.pec1al

Leave was preferred in SLAP [Civil] 

came to be disposed of on 25»-4g2G{35  ll

Supreme Court had permitted  

document only to enable  to, his ll

possession over 'B' V :"sc_hedyuIe*lprope_rty llar1d"lfor this
collateral purpose it was-i.lordere'd jgevllltnarked and in

pursuance  said ..lpe1"m'i'ssionVVlj'granted by the

Hon'b}:ellSlu'prernell Walslmarked as Ex.P.2 and as
such hlevyould  Ex. 112 is to be looked into

only for  limited Alpulrpose of the claim made by the

. it°plaintiff"'Aregardingl'possession of 'B' Schedule property

 it. He would submit. that even

when  is examined with reference to possession

 Vlelarimedw---  the plaintiff it would go to show that what

  has -been granted under the said document is only a

ll  "lease in respect of portion of property as described in



paragraph No.4 of Ex.P.2 which would be two rooms,
bath room, lavatory. with an open well, two coconut
trees and the vacant area abutting and adjacentitov it
and he would submit no portion was  
this by deceased Smt. Venkammap ind"
plaintiff. He would request  
description of the  
shown in two other docculrnenltscy. narnely Jplaint in
O.S.No.3642/1992    --._.EX.D.2 and

W.BN0.24629Z;1'993:y_mw-igedcy'aiésy'Ext;-«.é1 and when the

meastirerrierits yin tl.f1._e's'eltwo documents namely
EX.D.i}3.andD21"A:_iare«.clorripared with Ex.P.2, it would go

to show tli'at[sai.tl pifoperty has been described in Yellow

  pcolo'ur"i'in"i*tl1e  produced by the plaintiff which is

 a::-lV"Ex_i.~lE3.2 and this Yellow portion synchronises

wit_h tjl;1e.prope1'ty described in EX.D.2 and D2} as also

 .the "property described as 'C' schedule in the present

 i.e.. O.S.No.6456/1993. I As such, he would

-"contend that plaintiff cannot claim possession over any

(3%/, iiii ll



18

other portion of the property" other than 'C' schedule
property. He would submit at no point of___ time

possession of other portion of t.he suit 

properties were given to plaintiff and 

cumwlease deed Ex.P.2 would depictthatl  in if

hind portion and not the main    

contend that deceased  fact"

relinquished her right.oVer,t'h'e=.pi'olperty asrlcscribed in
the said document  only be 'C'

schedule propertysinzce   in '13' Schedule

the plaintiffs father to
perforfn. pooja lint':_i'h_ei#._:hou~se and she could not have

perrnittedllltluel pla'inti.ffto occupy 'B schedule property.

Evéii 5.-.o.th'erwisel"'hel would submit that it is the

 plaintiff that during the life time of

Sni.t.Vevii'l<arnina he had been in possession of the

 portiorilof 'B' schedule property which admittedly was

if  Srnt.Verikamrna and could not have been with

   plaintiff.



19

15. Sri.Aithal would draw attention of the Court to

paragraph 4 of the plaint in O.S.No.6456/ 19Q§:':w1i'e~rein

it is contended by the plaintiff that he was  

of a portion measuring 10' X 15' Whiehis inc:or.1_"ect~Vand

in all the pleadings referred to namely  

claims to be in occupatliont' of th.e""b:uilt4 portion

measuring 27" X  if soin the sketch
produced at Ex_.P.1   schedule as
"I-IIJK"      was in
  and plaintiff could not
 2 nor he claims so and
further  would arise as to how the

defendants  have trespassed when admittedly it is

'  schedule property (marked Yellow in the

it 'v...--i:6. He would submit that present suit was filed

"'AV_V'imfnediately after Madhwa Sangha entered into an

agreement to sell with Sri.Shivshankar dated 1--3m1992



and to prompt said transaction suit in
O.S.No.3642/1992 was filed and an attempt
made in the present suit to show as though: 
in possession of 'B' schedule  n.Qt 

factually.

17. Sri.Gangadhara t_ that
plaintiffs claim oVer:._._"'B'_A  rneasuring
35' x 38' and__as  schedule of
  portion as 27' X
12'.   with Ex.D.9. He
would of the Court to the schedule
shown   which is marked as

 aé  also contend that there is a Will

 Smt.Venkamma subsequently on

13§6'-- ilnhvllfavour of Madhwa Sangha which is at

--'  this goes to show that plaintiff was never in

 ll..fV._pols's.esslion of 'B' schedule property and contends in

 respect of 'C' schedule property the defendants have

(W,



already initiated eviction proceedings and it is pending.

He would also submit khatha of suit sehedu1ei~p'i=operty

has been made over to the name of the _f3="?_d 

and taxes are being paid and same éhavlellbeeifi»  i . 

as Ex.D.16 and D19 and this"i.eVi'deneels. 

the defendants over 'B'  Would'?

draw the attention. ..of  to"eonvt§end that
admittedly the p1aiiit_iff"' filed suit in
O.S.No. 1086.38-[2007  p/2  for declaration
and   composite property
   'A' and on the basis of
Will   Sangha and Vittal Rao

which thaiy lgoesll'-tell'. show that plaintiff himself is

'l V.  doubtful about  and this fact is also admitted by

 the p.laiiritif1"~..«i*both in ehieilexamination and cross

efcaminaiiionl and prays for allowing of the appeal and



N
ix.)

ARGUMENTS OF RESPONDEN'I"S COUNSEL
LON MAIN APPEAL)

18. Per contra Sri. Rajeswar, learnedjrxounsel

appearing for the respondent--plaintiff wofuld

that he would address his arguments~"und:e.r

five heads:

[i] Regarding identity of-.. the 

property. 
(ii) Would eVs'ta:bl_ish_'  'B' schedule
property   the date of the
:*[_'iii)._  xifa.s_:"dispossessed from 'B' schedule
 .,  it  44 V
    order passed by Hon'b1e Supreme
   that suit cannot be construed as filed
  section 6 of the Specific Relief Act,
hvxplaintiff will be able to prove that he is

entitled to possession of '8' schedule

property. 



23

[V] On nonjoinder and mis~joinde1' of parties
canvassed by appellant counsel -'jisv:.f"jto""..Abe

rejected.

19. He would draw the aA_tten.tiovn"7.o.f: 4.t'h'e4'Co1_irt;;vato

the plaint schedule wherein-._it hasbeen 1cn:enjt~io'nVed 

schedule 'A' property   and 78.
includes the blackVpo:i'tioi:1  sketch EX.D.9
and the said  He would
contend _    belonged to
  by the authorities as
Settlement Report and sketch
pI'0dUCb2(i~w§1I1dEX.P.37 and would contend

that this wo'uld__""establish that portion marked as

 forms portion of 'B' schedule

H  would contend that for the period

  'till I-3-1992 nothing is said in their written

it  statement by the defendants namely between the date of

 death of Venkamma i.e., 30-6-1984 till the alleged



agreement entered by Madhwa Sangha and Vittal Rao

with Shivashankar under EX.D.1. He would

that as on 1--3wl992 Sri.Vitta1 Rao (allegedl::ado}dteld  

of Venkarnma) was not I'€SlClI':E1g"ii'1. any  
schedule property and this 
EX.P.33. written by  agl-um
which shows that he,yAvas'oVAatl   draw
the attention of the   statement of
the defenda;;1ts;L_'at  contend that
defendants.'  as to what their
defeneellis'iand   not stated in the
 were in possession of 'B'

schedule 1dro._t)e1*t3h.'/'.  otherwise he would contend

 the plaint averrnents it is to be

"as'~,:admission by the defendant. He would

also  that if defendants had been put in

 of schedule 'A' property on 16-10-1993 or

  they-Atve1'e put in possession from the said date nothing

prevented them to disclose this fact in the written



statement which is filed on 295/-1994. He would also
submit that for the amended plaint no additional

Written statement has been filed. He would su.t)r1§§i<t_lt'hat

Will dated 13~6wl984 is shrouded  

inasmuch as just prior to her»~d.eath."i.el;'*--aboutj_on_e V'

month back she has written 1etter»..',Adalteti~.

the plaintiff as per Ex.P;l3I§""~wherein  the".

deceased Smt.Venka;rnma explainedlandvhence he
would submit that  died on 30-6-

1984 it canri'ot':~beE:iniagiried'hthatlpj'she would have

executetfllvaelﬁ/i_l1   17 days prior to he;
death  she was ailing. He would

further subrnit.-.7thatVlvimmediately on the death of

Sin-t':Vei1karnmalVl'onlV 30-6-1984 plaintiff came into

1 o'ff'~B' schedule property and it was in his

eon.trol,,' oeeupation and enjoyment. 



Bangalore Mahanagara Palike which is at Ex.P.4.6___, P247

and 13.48 would also demonstrate that in

possession and enjoyment of entire  l.s;:héd1cl1ei'a

property.

22. He would contend that p1~aintiff  fi.1_ed .a  L'

in O.S.No.983/1985 agai_nls'tl.,:_'M_adhwadﬁanigha and
S.R.Vittal Rao and   Sangha had
filed an aplllicéittlon receiver which
application.    as Ex.P.52 and
contends  it has been contended
by   "d that plaintiff herein
Wedavyasach-,ar}'   portions of schedule 'A'

property" to d.iffere_n_t.vtenants and as such appointment

vl been sought to collect the rents which
HaclcordvingV."ailf3.1"ériﬁajeswar would demonstrate neither
  lldangha nor their successors were in
V' possession of 'A' schedule property or any portion of 'B'

l  schedule property at any point of time much less as on



28

the date of filing of the application dated 22--lOa1.9'8'/" as

contended in the suit.

23. He would also draw the attent~ie~n.:io.f 

to Ex.P.5l to contend that plailntiffiwaslllinhi
entire suit schedule property.  
EX.P.50 found which is  ﬁled by
Madhwa Sangha   l4"'*VedaVyasachar and
Ramachandra.~Rao   'A' schedule
property   and contends
that  i.e., on 2-l~ 1991
 occupation of the property

describedas,Vsch_edule__i.n the said eviction petition i.e..

 H.p;c.No.V10o2s/1991 which is marked as Ex.P.50 and

*conten,ds  it clearly goes to show that neither

Ma'dhawal--"eiSangha nor Vittal Rao were in occupation of

 suit schedule property. He would request the Court to

it looleinto Ex.P.l suit. sketch wherein the words marked

  as "HIJK" is described as part of 'B' schedule property

{Vie



.5?

29

and plaintiff was dispossessed on 25-91993 and entire

portion which is marked as "ABCD" in the said.p's~kpetch

was taken over by the defendants forciblyifto'i';§*:{he

plaintiff.

24. He would submit that: a 

been lodged by the plaintj.ft""-.on tl'1e__ basis' 'cif"'w1--u'ch a*V

mahazar was drawn on l8--:1«2;1v99"3_whichis nlarked as
,EX.P.54 to contend thathas la'"efl»e;::tedvv:l_ii3.Vthe Mahazar, one
room had 1:;e.g:n...'ke1;§£"  said room is
situated  and this goes to show
that plairitiff possession of 'B' schedule

propertyllas"o,nlthe¥date." of drawing up of the mahazar

 i.ev..»,'-i.1?:'i'12V~l§93,______Hve would also submit that second
 'dVefendvant:cai1not dispute this document and he is also
bound   he has signed the said mahazar and it

 is admitted by him in his cross--exarnination dated



30
25. Sri.RajesWar, learned COiH1S€l for respondents
would draw the attention of the Court to E~x_.P.5O

namely HRC petition No.10o20/1991Wfi.i¢5j--.:°by

Sri.l\/{adhwa Sangha and Sri.N.R.Vittal 

Vedavyasachar, B.Ramach;andraA "   Vvtlaiiti

B.N.l\/luralidhar Rao to contendlthat. thispl,_':i;sl: a 

filed under Section zmiihii
Control Act whereunder  of property

is shown as petition sche_du_le fppremisies and it pertains

to entire suit"   very filing of the

petitioiiwby   Rao would go to show
that plaiiitiff possession and enjoyment of

suit schedliiley 'Btvproperty and in View of the plea raised

said petition that plaintiff had subwlet the

  also go to show that plaintiff was in

po'sses_sion}'ar3d enjoyment of the suit. schedule property

 till dilspossessioii in 1993. He would submit. that after

l 'A.ti:e..dis'possession was complete an application came to

l    filed by Madhwa Sangha under Order 23 Rule 1 read

 the'  Rent'



31

with Section 151 of the Code of Civil Procedure seeking

permission of Small Causes Court to withd1'awf

HRC petition namely HRC.No.I0O20/19{~ll "iseaiji%dl"i

application is marked as Ex.P;4'9;~. He wlojAltV;i:'l'r_i_ V:s'u:brn'it

that reading of the affidavit':__sn_pportii_ig"tithe

application it would emer-gs.ei--i,that '---r_eason Vgiiien for

withdrawal is the "formal aeieeti: aitci as towhat is that
"formal defect" is   hence it is
submitted  this g  filed after

dispossession-itofplaintifffi  ]aii"=;2 1-4" 1994.

  of the Court to EX.D.1

Sale Agreetaent"tiatea"  1992 executed by President of

   Sri.Vittal Rao Mr.Rajeswar would

 's:1i'i>n1it.__th.atT'u--.nde1' clause 5 it is stipulated that first

deie:idantV~V'rislronld get the sale deed registered within

 120ldal}'/s and admittedly the agreement is dated l---3»

A and sale deed in question has been registered on

  l_0~-2000 as per Ex.D.2 and reading of the agreement



in
Ex.)

to sell E3x.D.l would depict that no possession has been
delivered under the agreement to sell and it would also

not disclose that possession was with 

On the contrary he would submit that as     

of EX.D.l it would reflect thatj'the1"e 
HRC No.10020/1991 arid jalsoxis 
O.S.No. 10868 / 1989 (which     two it
Misc.cases nam'e*l.y   and
Misc. lOO39/ 1991 which  as on date of

execution of3~vAgr_eement:  sale' "i}ev_.,....:l--3--l993 plaintiff

was  Madhwa Sangha 81
Vittal Rao were  At this juncture itself

he would  address of Sri.Vittal Rao shown in

 ..,_the':l'2lgr€'erI1'x'int ol lsﬂalevis Seshadrl Raod, Bangaore--1 and

V"se_}Jedule property and as such he would

subrriit neither Madhwa Sangha nor Vittal Rao

x""'«.__V"'eo'uld zbelcoiistrued to be in possession of 'B' schedule

A  rproperty at any point of time. He would also submit

.th<§at none of the witnesses to EX.D.l have entered

W



witness box' including the first defendant to prove the
said document. In this regard he would draw the

attention of the Court to Ex.P.65 i.e., the 

drawn by the jurisdictional Assistant 

under Section 145 Cr.P.C to contend
prosecuting and pursuingphis  
as on 24-11-1993 also. He draws}  of V
the court to Ex.P.67 objections
filed in C.R.No. 1 I8 /   Sub-DiVisiona1

Magistrate 1;! members where

they   to agreement to seil
EX.D.  of the suit property.

Contendinfg t_:hat..v'defend.ants have been taking different

  "i'differentWpoints of time. Mr.Rajeshwar would

    of the Court examinationdnwchief of

DA.W.1v__<iat:edf16m9-2009 at paragraph 10 wherein it has

 beenffci.-aimed by D.W.1 that they are in possession of

if  schedule property from October 1993 and at

-»v-paragraph 12 it is contended by D.W.1 that on



34

640-1993 Madhwa Sangha and Vittal Rao deiivered

possession of the main house to the brother of D;'W.1.

He would submit at this juncture that. D.W.u

Shivashankar has not entered witness  K V' 

also submit that defendants 

inconsistent stands at different tiniesw and.tIo.:.avoidi':

claim of forcible dispossessliloril' being  such
inconsistent stands are"'pbei1ig  the defendants.
He would also submitAthatcadmiittedvly'Hinder }3Ix.D.1 no

possession H  _,E3.e4enl_ ﬁdel_iVered""""'and defendants

themsel\fes"ceolaini:3:'fVtl1at'dpossession has been delivered
under  which is sufficient to

hold. that  xfzlxl'/Iaslsin possession of schedule 'B'

'l"--,prvope1't;y'A  on the date of filing if the suit and

A *-def.entia,Vrit.s were not in possession.

  Toflestablish that plaintiff was dispossessed

  *.'---tschedule property learned counsel for plaintiff

  'r_elie--s upon the evidence tendered by P.W.2, P.W.8 and



35
P.W.5 and submits that they have spoken in
unequivocal terms of the events that. happeijed on
25-9-1993 1'.e., regarding forcible 
plaintiff. He would also submit that 
admitted that there was no' 
relationship with these 
contended when the neighbjour 
and states that  there
cannot be any other  the evidence of

P.W.5 that ;co'r;l;i:i have  by plaintiff more

particularlyliivwheinthere is serious challenge to the
 would also submit that

defendantls' have nlotllplroduced any other evidence to

   that .eitherlVll\/Iavdhwa Sangha or Vittal Rao were in

 "'oil_i.~suit schedule property at any point of

tim__e.' _ v '

it  28. Sri.Rajeswar has read over paragraphs 6 and 7

 the plaint in question to contend that in none of the



36

pleadings relied upon by the Counsel for the plaintiff

namely D.7 [Plaint in OS 3642/1992) and 

No.24629/2003] plaintiff has stated that hem_i'sl:'viioi:t:.l'in

possession of 'B' schedule property. Even    

would submit that these twciliAdo'c;tinien.ts.V:'w¢r¢=T.;1o't.

confronted to the plaintiff 

though questions have beeifptit to  these

two documents in  ci'oss:--eX.ami--nati0n" nothing is

elicited to discredit theV_svtate:Ftieiit 

29. Srii~;F{ajVeswar waii1d4.i'eie:iteitif:i that defendants

have {based  title by Virtue of following

docum.eri'ts  _ if

  V Comprorriise decree passed in R A-
 .l"33/1976 Ex.D.l2 dated 9-2-1979 which

_  not speak about Division of suit
slchedule property. He contends that

l decree is not executed till date and that it

has now become inexecutable since 12

years have lapsed and is barred by

limitation. 



[ii] Madhwa Sangha claims under 

namely the Will dated 

executed by SII1t.V€I1k8.II11'1'lE1 in ~

Madhwa Sangha andconteI'1€i:-zfitfiyatiisaid",if 

will cannot be acceptedfor three' _ T 

(a) The V.'m_eas'uVi'ernentsiy » '   
scheduiertto   different

V from  'Vc;measurerr1e'nts"  shown

 t--h.é--  defeat :VEx.VD . 2.

V. [b] fiVi11-  duilysproved since
it  offiicialsii'ofditiadhwa Sangha

 . euxlaniiined, scribe is not

veﬁiarnined and Witnesses are not
 "eifarri'ined.

"  is not probated as required
V under the Indian Succession

Act.

  which has been relied upon by

 the defendants refers to a Letter of
Administration ' issued by the
Administrator General for the Karnataka
State and said document is issued by a

person who was int.erested in the affairs

 .

of the beneficiary and contends that the Administrator General who has issued Ex.D.8 is Sri. Dorairajulu Naidu who was the Advocate of Madhwa Sangha as from eviction petition .

marked as Ex.P.50 whi_c~h.. "

admitted by n.W.1 '_r1'1'i; "¢_Thi's- [_f e1jo_s"s'é_ examination dated :5__-- and V' such he subrnits'~w..that"'titlex 'by these three modes by the- defendants would notfv-est--'_Vin i.titie_ the defend ants.

30. Draiifing Court to the cross~eXarr1inati:c.n'«_of _1 l\/Ei9.;vR'a}esiisrar would contend that avoided and evaded to answer. questionisksiln the cross--eXamination and ..e_that'"l'ett-ei' dated 64-1995 which has been produced by the appellants in this appeal

b),r_iivay.0--f "additional evidence has come into existence at a laterrpoint of time and contends that defendant has stated that on 6-10-1993 possession of suit schedule .. ___property was delivered and was unable to demonstrate while confronted with a question in the cross examination as to the basis on which possession. He also draws the attenti.on of H the cross--eXamination dated 5-"

same witness would admit that documents were given Sangha. He would draw the.iatt.e_ntli'on oil to the objections filed by members as found at defendant has contendedj"thatA:"hle._ of suit schedule propt:;'rtd3'r" 'oi.'_""ag;reernent (EX.D.1 dated l--3--1i3'9?}'- admits in the cross- eXarn.ination._»V dated': l'"3~l0v2009 possession was not Ac1elif\.rered"i'1z1nderlthe agreement to sell. He would also it Vl'.i'~attention of the Court to the cross eX«ami'__nation of D.W.1 wherein he admits that as on 1-3 we 1992'~1§ossession of suit schedule property was not taken since Madhwa Sangha had assured to deliver "possession of suit: schedule property after obtaining a/ 40 vacant possession which itself goes to show that plaintiff was in possession. He would also submitthat President of Madhwa Sangha, Krishna also a signatory to the Wiil of Smt.Venkan*iIr1a entered the witness box but domineering inﬂuence he >being:4la_t1".:hat of Deputy Superintendent of to "create He would draw the atteznt-i_on the cross- examination of that portion of D.9--{a) "rasxi sriaéiiiaehandra Rao. He wouldiallsoi' himself admits in his examinationeirizeliieflVatrparagraph 8 that possession was ,with Rao i.e., other portion of 'B' l fjropertjflllwhieh goes to show that defendants lo'--we.i'e not"-.iVn oossession. He articularl draws attention to ""4.eXa__1riin_«ation--in--ehief of D.W.1 at paragraph 8 fvwhoereirr is stated that plaintiff had kept the remaining _' 'portion as it is which according to Sri.Rajeshwar would at"

4] mean that plaintiff had kept the remaining portion of 'B' Schedule as it is.

31. He would also submit pendeney of suit order of injunction .'\iVas.:i'f1l'foree respect of 'B' schedule defendants have put up the photographs EXj_.P.69 'll-le' submit that forcible possession' the plaintiff and hence to cover up clefelndants did not obtain the"sal_e entmlto sell on 1--3--1992 and is of 8 years sale deed was obtained' on 9 He' would draw the attention of the Court to the doteulfiients summoned by plaintiff from the whereunder complaint given by SriL\/zidhyelsha Thirtha Swamiji on 9-11-1993 to the jur1'_sdiet_ional §ub--1nspeetor of Police informing that "'T:)etl\t2Avee;"} 1291 and 13*" September 1993 he had 43 thereafterwards the wall bifurcating 'B' and 'C' schedule property had been put up. He would draw the attention of the Court to E2-:.P.26 to contend that i11spite'.Qf»-there being an order of temporary injunction . constructed and continued to putmup coi'ist'1*1i'etioVn"oVer "

'B' schedule property only w1'th':.'ari:_"'iritefitiorf toblainj equities after forcible dispossvessionlofythe

34. In reply to argued byfSri.Aithal he would submit ztnd"~D'.'§'1--.l-'wherein it has been contend;ed:;1irthatlplaintiffjlliaslnot spoken about 'B' schedule such it is to be construed as plaintiff no_tltbeinglin possession and would submit that reply to' thisl.fc'a1'1....b€ found in objections filed by the ' appeal to the application for additional evidence appellant and relevant paragraphs are at 6l(a}

35. He would submit that plaintiff was with Venkamrna till her death and Ex.P.4 to R6 shows 44 plaintiffs possession as evidenced by electricity bills, water bills and notices issued by BBMP. He would submit that D.W.i admits plaintiff let out portions"-of '13' schedule property to Ramachandra Rao ariydﬂ l\/iahazar drawn by the police shows that possession of a room in '13' show that Vittal Rao waspnot he rely upon the letter dated Vittal' Rao to Vedavyasach'a.r is after compromise in__l979 Vittal Rao has stated' terins that he would not come and meet Smt'.V_e'13l:k:4.n1-ma 'or stay with her and he would notistep into. the saidhouse till she is alive and it is "that admittedly Sri.Vitta1 Rao was not in portion of suit schedule property as he'"wasfa Goveinment Official working at Various places. it Hepwould also draw the attention of the Court to namely the application filed by Sri.i\/Iadhwa '"$angha in O.S.No.983/1985 praying for appointment of W 46

36. He would submit that defendants have not proved their title to suit schedule property. He.-would submit that there is no whisper in the urritten._s:f;atem.len.t by defendants as to how they became the suit schedule property. There draw the attention of the Cpourt filed in the instant suit plar'tlicu1arly and contends that even to what is their source of title." E_1;ol«l"pleadings trial Court has not l1*igl:1tly:3.fran1edany'-l.i.ssu'e and any amount of pleading ought not to be eschexyed by tl1i.sl'é.oi ljie yu"ou.1_d..«submit that order of the I-lon'ble 'S.up.rem'e=Court_ only shows that suit in question was not under 6 of the Specific Relief Act While consideriiig a plea put forward about maintainability of A ":f:"iiheflappeal and contends that plaintiffs right has to be deterrnined as a right under Section 6 of the Specific 47 Relief Act or under Section 5 possession has to be recovered and he submits that for determination of right of the plaintiff, Section 6 of Specific Relief Aet_eai*i._V_be pressed into service for considering only.--3V__posse--sso:y*p_ right and submits that Article 6é_i..of the VAct__is" * . attracted and plaintiff need not:"proi_:fe.'ititle_ and oiilyppwill have to prove possession'a_r14d..V'thuAs defendairts-i.h_aire tof' restore back possession to the"'--plaintiff,._ Mlle would submit that if suit islllfiled sligviinoiiths from date of dispossession;riefenzdants: i'iaVe'--..a riglit to claim better title than"hi.rn_ to prove their title and submits that ..-have not proved their title in the -instant 'date of filing suit. On the other . would that the defendants have pleaded else which attracts the principle of "j'uste;i-ti','.;~"

38. He would submit death of Hanurnaiah is not féreported by the defendants before the trial Court. It is 4%/' 48 only in the appea} memorandum it is stated that Hanumaiah died on 24-5-1998 and order sheet..g'E)'§_tria1 Court also does not reﬂect that it has the trial Court. He would submit that produced by the defendants rescue as it is not an adrnission"'i_ri*the hence Section 17 of the Act and accordingly prays gaised and answered and A by the trial Court ' COUNSEL ON IN1'ERLQCﬁjI'OE{Y APPLICATIONS:

.39. C4'Sri.VGanga'dhavra Aithal would submit that it - axriendmerit of written statement now sought for has got pa:I*tS"ar1d'_1~wou}d submit that proposed amendment of the statement now sought in this appeal had already-dbeen sought before the trial Court by filing "I_V.A-.1'tE:o. 8 on 1341-2007 itseif and it is Verbatim of what

-~-had been raised before the tria} Court and submits that We 49 on the same day the application has been dismissed by the trial Court. He would submit that plaint be amended as per the order dated 143-1995 _ and what has been contended in para-.grap:l?1,l26~«{b) .. reply to paragraph 9(a) and (b) of tl1elA.plain1:,.l refers to legal plea pertainingto Section Relief Act and paragraph l(e)~ relating to subsequent events place after filing of suit. 'lieu appeal was filed on Order dated 29--

ltliehlrnatter back to trial Court and tl'1e "of hearing before the trial Court .onV».v13A§"1ll::2007 LA. for filing additional . * 'estatiemenvtuiiras filed and it has been rejected. He said order of the trial Court is not a sp'e.al(i.__ng.,l'order. He would submit that though trial .C,o_.urt"had granted time to tile additional statement, the C "'._sa1n:e was not filed a.nd by virtue of amendment sought Cl " '""ir1 this application he would not seek for retrial 01' for 50 tendering any further evidence and as such he prays for allowing the application. He would also submit that the plea advanced in paragraph 26-03) of the 'written statement is a complete reply to the amencin1epn.t_l__'niiad»..3 by the plaintiff by way of incorporating 991:; and 9--[b} in the plaint and allowed to be raised no har'dshipl'woul_d :i;olth_el'*. respondents and the appelllailltspp already tendered their evideri_ee_ and have been crosswexarnined by therespo.}1q§Jilts.v'Appellants counsel Sri. lcan;;;ad1gi,;aiy;xi:ehai,iiariy submits that he 'Will not selekdprayer.toleadlilldefendants evidence and as such he prays ilordallowing application and permitting the 'l V. apiplell=ar1t"l't.o_ defendltheir rights based on such defence. vl'.i'al.so submit that plea proposed to be ineorp__-orated in the written statement as per para 26[c) .beingzg'=a; legal plea and arguments have already been it 'gatlveanced no prejudice would be caused to the appellant " same is allowed to be raised.

51

40. Elaborating his submissions he would contend that after filing of the suit and after rernand made by this Court on 29«lO~2007 schedule property has been made 2"" defendant and certificate 'by Authorities and documentsin been produced and and as': if these subsequent events .Vlto--..ble.:'incorporated in the written statement caused to the the application for submit this fact could not have the pendency of appeal as it is which occurred after remand. He ' that human conduct has to be looked into has honestly disclosed the reasons by that he was not aware as to why this fact A not been pleaded and contends that in order to liavoid multiplicity of proceedings and for proper and M 'J:

ix.) final adjudication of the dispute between the parties and to arrive at a just Conclusion, the delay if any requires to be condoned and seeks for allowing;~~,of.._'i_i*t._he application. He would also submit sale executed in favour of the appel»lAa'I1ip on khata has been transferred 242-2008 and as suchithjese propo's.ed~.:aiznendmentnl requires to be allowed. He also"-submit that amended provision Code 'namely proviso wotildn/Qt applicable'_j_t.ovthe facts of the ease sinoejthe arnendme'nt and in support of this npon the judgment of the Horrble in the matter of State Bank of Municipal Council reported in 765, He also relies upon the following judgme'rits' for the proposition amendment has to be Sl.

No. Citations Propositions AIR 1979 P 81 H161 Amendn1entV.-whlcll goes to the root uofétlie matter will havetob-eéijallowed.

AIR 1979 SC 551 New plea" 'can. _V'1'aised even at appe1latejCo'urt part:'iC'u--1a;'ly"'v. 1. "when " :n_ai:er;a1 is alre ady"1there 1975(1) My:{,1;--.q.

Sh.N. 123.

Hearing ...the appeal I';A_. T01?' amendment has ' K to be considered.

AIR 1196.9 sc 1126424' 'Amendment should not It be refused on technical 'gif9_L1--ndS.

_A1__R 200591; i1s.%i--7%_ V necessary »determ1'ning the issues is for Vﬂftien amendment in question it has to be allowed.

Azgiaifm _ 'i.Li:{.t119 92ii§fAR 1107 1 765 Amended Civil Procedure Code not applicable.

Factors to be considered for allowing the arnendment.

rio "2oioe{4) sec 385 .JT 1999(10) so so To shorten the litigation and to sub~se:t've the iustiee.

Delay in filing not a valid ground for rejection.

Liberal approach should be adopted.

54

41. In reply to the objections filed 'to' this application Mr.Aithal would submit proceedings before the trial Court is not the defendants. Though issuesiwere 1998 p.w.1 entered the w:tneset«ee§<V_A'on as such the contention§.._:}'a.ised statement attributing ~d_elay"to defendants without merits. He would had been ﬂied on 13-31 Opportunity and rejected it has been filed beforeithvisne being continuation of grounds he seeks for allowing iaptjiications filed.

- 'F QREPLY ARGUMENTS oz? APPELLANTS ' J ADVOCATE LON MAIN APPEAL) it (ﬁn merits Mr.A1'tha1 would submit that the *?_"'adVanced by Mr.Rajeswar about the maintainabiiity oi? ciaim under Section 6 of the Specific Reiief Act is W 55 liable to be rejected since a suit cannot. be ﬁled which has two prayers and if the said two prayers are recjuired to be tried summarily and regularly then clubbed and as such the contention counsel for the respondent is liable :t.olt;ef'reje.ct:ecl.. X, y

43. I11 reply to the' proc.'a'.i'cVed'_V_l. plaintiff namely water billsl,l"electricity* paid receipts which are R10 to 13.14 and P19 and also by BBMP which is at Pl-"9l.E8llil1l<§lll"cll011te11ds that they do not to 'B' schedule property and all reflect only property No.B--92 n Wl1il:?h: the co'm.p_o_site property. reference to the arguments advanced f_ _ D . 4 namely Will executed by Smt.3fe'r1l§amma in favour of her adopted son Sri.Vittal he would submit that there was no necessity to state as to who are all in possession and it is undivided half share of composite property which has been bequeathed in favour of her adopted son. I-ieivould submit that he need not prove the Will for namely; [i] appellants do not rely upon and {ii} Ex.D.8 has been issued ' General for Karnataka and4_thds._lWil1 iii? proved. He would further thatjtiijis eertificate Ex.D.8 issued by Ad-tnfi--nis-trayitor"General in exercise of the power under 'lof Administrator General 4rev:ealslV'Smt.Venkamma had exectited' rt:gistet'ed"Will in"fa\"four of Madhawa Sangha and is pr.irn.a;~facziedjogsument: corroborating the Will Ex.D,4. _\f'vould A'::_.1,ibfnit that mistake of mentioning ptl1§~y:,;:1;gL~*:e was lVl2h--6'¥'l'V984 instead of l3--6--1984 is to be 'la typographical error and nothing much beaaiidiabout it. He would also submit that even in the absence of a Will the property goes to Vittal Rao, the it vovadoipted son who has admittedly sold the property along Madhwa Sangha their undefined half share to the G?"

appellant and appellant has become the absolute owner thereof. As such he contends that nothing mucljrcan be said about Ex.D.4 for not having exarninedV..t_lieVl:w;i"t~ilyess to the will or the beneficiary under the ' ll

45. He would submit it to an order passed by the:CiVil Court on.a11tapplicat,ionby for appointment of receiveizjldoes lnotliplertain to 'B' schedule property itflisp.l.Arleter.rabl_e to 'C' schedule property only and 'req'uests this Court to look at Ex.P.5l which reflects -. 'that'fSrl'i,VecdaVy'asachar had claimed for declaration on the basis of lease cum Will __"lfl0Ql97V6____«evxecuted by Smt.Venkam1'na which ';yacco1<ding~_to._' lV[r.Aithal refers to plaint 'C' schedule He would also submit that even otheryxztise under Ex.P.5l it cannot be said that it refers A schedule property since suit was filed on l§26--3-- 1985 and on said date no alleged tresspass over 'B' (ﬁ/ schedule property had taken place. He would also submit for nonwproduction of the No.983/ 1985, an adverse inference has against the plaintiff.

46. By referring to namely"v:HRC-v...pe=titiorilL' 10020/1991 he submits rei"ersl_._to_:§on1y 'C' schedule property anddic that it refers to Whole propertyby the schedule described it it it namely the mahazar same is not proved in accordance"vvithwtlavv and the signatory to the said the aofilellant herein {D.W.1 before the trial that he does not know how to read and'-..._w1jite.,iA.land as such the burden was on the 're:spon.d'ent--plaintiff to prove the execution and contents th_eI'--c--of by examining the author of said documents and 59 on account of this defect, it cannot be held that EX.P.5-4 is said to have been proved.

48. Sri.Gangadhara Aithal, learned respondent would further contend that allegedjC:rirnin_alh"' case filed by the plaintiff in acquittal and in said case plaintiff haseXa111'ined"'one..L witness by name Sri.Dasharai:hi Do'd.da11i-anivlias P.W.-4' who is said to co_ndt1cte.d..l't_he investigation in criminal case and at"whose:_Vinst--ancé._'jEi:.P.84 has been drawn and?__'Vco;_;1";[steVr1d::'3p that saird"'Wi-tness did not tender himself ~/for.fi;{;Af1<re1'sexainiiiation and crosssexamination and hence l'11:s"eyid§:n§:'eeV and EX.P.54~ need not be looked intii). vhiuld cccc _submit that HRC 10020/1991 was ' Madhwa Sangha as there was a technical ldeiect irivliithlevpetition namely the boundaries mentioned the1'~ein; was in respect of entire property. He would .Vcon_.tend question of examining Shivshankar the first defendant does not arise since he has sold the suit A/.

60

schedule property to the 2"" defendant his brother. In reply to the contention of Mr.Rajeswar that there no whisper by defendants in the written state;'n*ent...'abotit Madhwa Sangha being in possession property is denied and it is contend-ed. ithat: halt'-{iaraiy_lfZl~<1»;1viof the written statement it has__been.,_ realit; owners are not made parties: _to denial. Even otherwise he nowhere in the suit plaintiff has i;nd'.vp'ossession of 'B' schedule Srnt.Venkamma he contends that this CourtfA'wVil'l that possession has been given. to Félainvaiiinrthyéfllfl defendant under EX.D.1 on 6- Vffeoiasidelring the circumstances and also the if f1.eIt__ter' he would contend that contention of'~«..,1ear__fr1edl"'cousnel for the respondent about the oral eteyidencfe of P.W.2, 3. 4 and 5 has been accepted by the °.ti'ia1 Court is erroneous since the reasoning given by the 61 trial judge that nothing is elicited in cross~examination is factually incorrect.

50. He would submit that two documents' D--2O was not confronted to the Zyvitnesses for there was no opportunity for_ hini"to'cor1fro--ntVvsince thefﬂ order of cross-examining passed 1t§f;1i~2007 had been stayed by 2007 and at that the Hon'b1e Supreme of confronting of thesevdocuin:ents;_to arise and now in this appeal' it Even otherwise he would submit Confront to P.W.1 since the contents of th'e"doe_uments speak for itself:

V -Ef{'1«..V'fV_I'*Ie,.'ﬁvould submit that title of the defendant has t.o_"be «iooked since this is not a suit under Section 6 nof__t.he'"¢Specific Relief Act and present suit being based on°previous possession without title and possession 'ufbeing claimed, defendant can plead defence of title. He 6%"

62

would submit that defendant has to establish ownership of the property and in this regard he relies upon' the judgment in AIR 1927 A1}.669. He would sub-mit"'t.h'at Madhwa Sangha and Vittal Rao were V' since there is no material to show' that in.' possession or not and contends ti1at"--in paragraiph the written statement thisffplea it of V of necessary parties had~..beent"t'a}teji1lf*,_He would submit that if suit is filed after or beyond six months defen~daij1t'Can._ raise title and prove it and if title his suit has to be dismissed "regard he relies upon Nair Societies 1.968.. SC 1165). He submits at this itlVl'requirelsmto be examined as to what title the and the only answer is that nothing has'~.bee__n' by the plaintiff. He would submit that tfeven otherwise on demise of Smt.Venkamma the p_ro'perty has to go to adopted son Vittal Rao even in the Qt?//, 63 absence of Will and as such title to suit schedule *A' property had passed on to the 2"" defendant.

52. He would submit in paragraph,§f§i~'A..'_'o.f _ plaint, it is alleged that there was'-Sap encroachment and the said pleattidoes not'eont'ainlpro'pVer particulars or speciﬁc plead_ii*:.gs. He would al'so_s-ubmit,Vl' t.hat plaintiff himself hgd..t.l'i"11edtii_VpA for appointment of to be allowed on 18--8--l994l'and has not subrnitted'"a">_re:poi~jP" that there is no specific = 9A about actual date of dispossesspiltjn " submits that none of the ei<'an1,_i___I__1_ed on behalf of the plaintiff have of possession held by the plaintiff schedule property. He would draw the attentipn of the Court to suit O.S.l\lo.l0868/1987 filed "ll plaintiff whereunder the plaintiff had claimed for ?declaration of his ownership over the suit schedule 64 property as described in the said suit on the basis of a lease currrwill dated l--lOwl978 and contends that by virtue of thesubsequent Will dated 13-6-1984 execitlted by Srnt.Venkarnrna earlier Will dated _ not exist and admittedly partition h.a"s'~ =pla,ce"= between Srnt.Venkarnrna and V'her_j_"adopted':"sorrf\Zi'ti:a1 Rao in the year 197 9 it'sel'f....andA'~thu.s_ thatt"

defendant has proved better..tit1.e"than.'t'he_plaintiff and contends that once title, Plaintiffs suit has to be .dis:nissed.' * 1753; He 'that in the exarr1ination--in-- chief of entire details by chronology of e*,feints__9A' hpave'"'*be_en.v explained. In support of his ' .vsubrr1i.ssion"that when there is a joint claim of trespass 'against.thjedefendants and if one of the defendant were to expire and all Legal heirs are not brought on record, appeal or the claim gets abated against all the Legal 9 __'riheirs since decree that may be ultimately passed would W"

be inseperable and thus it becomes inexecutable. He would submit that even according to ti1ey*"'-plaint averments 3"" defendant Sri.Hanuma1ah_...iyebafsi"Joint trespasser which means it is a joint contend that plaintiff was fully if' of 3rd defendant Sri.Hanun1a'iaAhf-._since,."_in"

petition filed against 13-2004?' Hanumaiah was also in S.L.P.No.52O 1 /2009 y l'lonib_'lve'--V-Supreme Court. He would ;suEje;m'it "hi-,egiai'"xheirs"--'of.._$ri.Hanumaiah can obstifuct if stlivtfas decreed by trial Court is confirnneed since they are not parties to the said bfutress his argument that when there jéiintclpaim anldffailure to implead all the Legal heirs fffofﬂone of the defendant, it would lead to abatementa of claim against all defendants and in AA of his submission he relies upon the following if =._VJudgements. Hence, he prays for allowing the appeal * Wiand dismissing the suit.

66 AIR 1972 Mysore 184 Smt'. Kamalamma Vs. Kenche Gowcifr AIR 1973 Supreme Court 204:" T' ' Babu Sukhram Sifzgh__ K Singh and others AIR 1931 supéezge cam}: 192::

State of GLy'arat' VZ_é;.' Svayed'M_O'hd.v}Baquir El Edmss . .. ..

(1973) 1vS.CR::53 A' V £3akr3._c::Tgya;3._Prm:r§zd'"Giqiitaand Others, Vs. .A at 4-5.3.

= Pan§1itA:.}jVSfi'*(;"hai1d and Others Vs. M / s. W%JagdV:sh%'¢%%parshad Kishan Chand and V Offiens. _____ 14 « , Himachal Pradesh 56 ' Pgém Singh Vs. Smt. Ray' Rani Devi, AIR 1961 Punjab 555 Kedar Nath, Vs, L. Manak Chand and others,

10.

11. 67 AIR 1962 Supreme Court 89 State of Purgjab Vs. Nathu Ram, Civil PC. (1908), 0.22 R124 and 11 and.__Q.1 R.9_ ' AIR 1977 Patna 29 Munshi Singh and others * Singh and others AIR 1963 0rissa'1_40 'V V Damodar Patra "0 thers' " Vs:

Sahuami and othe'r*s,--A. V' _ AIR 1953 Ca1cu1:ta.;5V8'8. ;vv~ I Hakiff Mahqrried Abdul ._ f . 1'9lE.'s3T'S_}ip1feme Court 1901 and others Vs. Sﬁamliavehairi Lal Jagannath and another.

"AIR Supreme Court 733 n Prasad Singh and others Vs. A Prasad Singh and others are

14.

15.

16. 1'7.

_ 68' AIR 1986 Allahabad 334 Gizja Shanker Singh and others Singh and others, ' H' AIR 1960 Madhya P1fg3;desh_32..;'::j~'.. " _ to S. Chatterj i Vs. Dr. T. té X T. T AIR 1974 Aﬂah--e._bad 2t5*7o V _ State of up. Vs. _R_é:I'z3h:'ng1 Devi AIR 1976 ':12 Ra_tarf_1cha.s'id Aekar Nawaz %%%% RESPONDEN'I'S' . h « ff-.I\/;_[A1N'AP?EAL] 54?'L.511,Ré1j.ee;e§razt;_"..'e'learned counsel appearing for the-:.;teEef)0t1C1ei'it"'plﬁintiff in reply to two I.As filed by the 'A this appeal would contend that entire H the trail Court between 29-10200'? is a nullity and does not exist in the eye of » Vtfiew of the order of the Horfble Supreme Court. V' téated 3--8~2009. He would submit a duty was cast on 69 the trial Court to record additional evidence as per remand order of the High Court and 1'€3'El'ELI1S1'1'1l?L:'~__ili for consideration as modified by the Honfble Court and question of allowing any the pleadings or leading fL11'thejr""'"vidence cross.- examining P.W.1 was not the one.__vv'i-iich be considered. He would that=sre'colnd"groundl urged in the applications;iwillnjlarise forfhconsideration only if the defendant'sVfAfor'_'_.amendment is allowed and for amendment of Written sutat_e1nent__ would submit and fairly admit that al1o\irV"'amei1dment at appellate stage and the 'principlesiveijiunciated in various judgments cannot be disp'uted.."'fsilifiowever, he contends that amendment now soughtvllfor by the appellant to amend the written "staternent at this stage is required to be rejected for the following reasons:

ﬁg/.

70 (1) He would submit that amendment now sought for is not by oversight or inadver=ten.eeg."and defendant has adopted a design and to espouse av.premedi4tated'iiéaiisekanid 9 hence same does not require to be a1iow'e.d.. 2 regard he would to paragraph 31 go,-f..th€ contending a Vague pleﬁ and not disclosing pro 'fby er admitting or den3'?ing."P1aiiit, a4Veﬁ'i*.m'e-njigs.

""" " no prejudice would be ca'used"At'o_the~.d'efendar1ts if amendment is t.r6jeetr':d,V in.Fview"'of cross~examination of P.W.1 it dated Whereunder it is admitted by the that he is not claiming right of ownership inthis' case.

(iii) He would submit that amendment fsought for is an afterthought since plaintiff has not let in evidence on title and plaintiff has been 7l crosswexamined and there was no issue regarding title raised by the trial Court and if the is allowed at this stage, it would Pandora's box.

(iv) Regarding draw the attention 3, and 26 of tht§~.__Qbj;--:cltionls.lﬁiiled filed by appellant for of evidence.

56. He stage there has been delay defendants and for filing additi--on'al 23 opportunities Were granted: is reckoned from the date of they ame.n.d'ment application till the framing of ' would submit. that this Court in \7V:P...l\l'l0iV.2E"$l.l163/2005 by order dated 23-12-2005 had 2' directed to dispose of the suit. within 9 months and if Alapplication is allowed he will be deprived of proving his w title to the property and again opportunity will have to be given to the plaintiff and the litigation will continue for eternity.

58. Regarding I1OI1"jO1'nCl€l'MQf = would submit that under Order 2:1'R1g;lel'7li itl"l1a'sfto raised at the first instancv;'~*:l_(;«t_hervvise it stands-...wa3ived.--..i' Even otherwise he would should have been filed atleast when was filed in the year 2007 itself and ri'o'n+rnelnti.oning reasons in the affidavit for esrhibit honesty and truth---- a "l ground for allowing the application andlin 'factihe prays for its dismissal since '_ d€l7ClZl(l:E3£ﬁt$ thetn«se_lv.es admit there has been delay. He 'vvo'uld that defendant cannot now claim amendmelnt' written statement in view of Order 2 Rule Civ.i.lvll*PrVocedure Code and in conclusion he would that if applications are allowed, it would be Iraockery on the judicial system and present: proceedings av 73 and defendants by attempting to raise technical pleas would go scot~free and illegal acts committed by defendants would continue unchecked and as prays for dismissal of the appeal. In . submissions on all issues he relies upo1'1"'th:e pfol1owin_g '* citations:

1)

2) (1989) 4 SCC 131.'.

Krishna Ram Mahala {.l)ead);.B"y Mrs. Shobha vemca: Q V t AIR 1968 "SC .1165 ;

Nair, serw;ce.i_ Vs. K.C. __ .l others ._ Am 197o~s_fe.._3,46 Vs. Dr. S.P. Rqju and ' n 'A ~ M. afio {her AIR 19% so 2299 Kallappa Seiiy Vs. M. V. A ' 'j_Létkshminarayana Rao, '3 $1993) 3 sec 331 Thirumala Tirupati Devasthanams Vs. K. M. Krishnaiah

7) 10;.

74 (2003) 3 SCC 272 Sarciar Amarjii Singh Kalra Vs. Pramod Gupta AIR 1960 MP 14 Swamiprasad, Vs. Bada Singhai Churaman and others... V V' 1995 supp (3) sc(i"*a33-.1Wa' _ _ Bhurey Khan .. hang: Laps AIR 1995.Qrissi'1§3O * . 2 Guru NaiI'€"¢/§3.~ Azgjfihl Dash and others :j(;19.§63«1"'s¢C 1'94"~ ' Others Vs. Jar Ram and ahanovfhéf' _ In 'A A .'4vA"Al;isaheb Masumsaheb Alas and Others (i971)1..MYs LJ 200 Y:::;:"Babu Laxman Chambar AIR 1967 SC 341 Basant Singh Vs. Janki Singh

13)

14) (2001) 7 sec 69 to Rqjinder Pershad {dead} by L.Rs...:

Darshana Devi Am 1933 CAL 337 pp _ é Traders Syndzbate Ur_1io.r:i oj7.India.

59. Having heard the advocaiias llﬁippearing for the parties followiiig arise for my consideration in this appiiealzﬂ l (1') Misc.Civil.No. the appellants under Eagle 17331-aid with Section 151 of

-_ ' Civil Procedure seeking ll 4'amen.drrient"'*----,of the written statement to V V the application .l'ill'tioi:11451/2010 filed under 41 Rule 2 r/W Section 151 of the Code of Civil Procedure by li'1'1c:o1'porate paragraphs 2603) to 26(6) ..t_deserlV'e's'*'to be allowed or rejected? lVIisc.Civil the appellants to raise additional grounds in this appeal as ground No.l6C & 16D is to be allowed or dismissed?

76 {iii} Whether the suit as brought is maintainabie or not?

(iv) Whether the suit is bad for non joinder of necessary parties'?

(V) Whether the judgment and decree the XIV Add1.City~ ._CiVfiE :'C.oj.irt./_f, in A M

0.S.No.6456/1993 dAate=¢l_"4é7i»200i7 :"ito'be reversed, confirmed orW'rnV_odified"? "

{vi} What order? h' «-

FACT OFVHTHE;

:V,60'--. ' the points formulated herein above, be necessary to state the '_ ba_.*ci<ground of "the___p1*esent case, since it is having a long ' history::off1.itigation. The parties are referred to as per trial Court namely "piaintiff" [respondent in this':.ai3pea1} and "defendants" --(appeI1ants in this . 4, $/ 77

61. The plaintiff instituted a suit seeking following relief:

"To grant a judgment and permanent injunction restraining the ._-first"._and ' second defendants either or u through anyone on their behaljfrionigintergferingf in the plaintiffs right, title and :i1'1ttnerest.'i3uei' 'V in the suit scheduled, property: creating documents alienatiriggg the lproperty to others and such other relieﬂs) under the circun1stCs:nces gthe justice and seeking amendment of the plaint was ~. fil'ed_'anC1_:safr1e having been allowed by trial Co:jd:rt:,.\---plaintiff"ameiaded the plaint and incorporated in the plaint, added schedule B and C and also for following prayers:

" ,','"'{a) A Judgment and decree of perpetual injunction against the Defendants I to 3 directing the Defendants to restore the possession of the schedule premises to the W 78 Plaintiff and not to interfere in the PlCtlT1fl,U"S lawjul possession and enjoyment of the schedule property in any manner whatsoevefnrt lb} A judgment and decree agaihslt Dejendants for mandatory it the Defendants to restorerthe'possession' 'B' schedule property, lln'zarF.c'ed 'A,B,C,D' in the anne§t_ed.i.,skeltch¥ b be a decree for permar'tent.VViry'unc._tion against the Dejertdanisfor is marked in the described as 'C' schedule' to may be a decree: the :enquiry.. in.to the mesne profits J 2 of CPC, and also there rriay be the cost of the suit, with _ _v suchoytherfrelileflolr reliefs as this Hon'ble Court fit'in...t:he circumstances of the case; A " iii'-"ant such other equitable relief deemed , .1 and proper.

~~ Award costs of this suit, in the interest of justice and equity."

79

The said suit came to be decreed by judgment and decree dated 4-7--~2007. Aggrieved by defendants i & 2 preferred an R.F.A.1966/2007. An applicati0n"u--n=de*r oiaa~ éifjauie C 27 of Code of Civil P1'ocedurel"see_l{ilng adduce additional evidence' to be filedlcolntendinglll that defendants h&Q.,ri0'[ anlopportunity to adduce evidence and to be disposed of by judgiliieirit 2940-200?

whe1'eunder the application and additional evidence befoieltrialCoi;ii't:--:a«n:d-:.oppp'o1'tunity to cr0ss--examine the defeiidants the ﬁiaintiff was also given with a further the Court to dispose of the case on .ni"ei'its,. f1"1idsol['Vfar as "B" schedule property is concerned. £__33.~.'§iggrieved by this judgment and decree dated a'29_;iO?'2¢O07 the plaintiff preferred a Civil appeal No. CWSZOC1/2009 arising out of S.L.P (C) i\io.1279/2008 before «V the I-Ion'ble Supreme Court. of India. 80 Two contentions were raised by the plaintiff before the Hon'ble Séipreme Court which are as un_der:

[1]

(ii) the suit being one under Specific Relief Act}! 3app'eAal__.:

maintainable against__ the decree passed ltherein: .

No casehas been ':nfa.de.._out for grant of an opportunity he to' Aaidditional evidence and that:Ain'»any"eventlforlthe said purpose, Vthe;£~'e11tili'e case could" not have been _p trial Court for fresh xdi.sp.osal'a_fter recording fresh evidence as it " WaS'I1.C§ a'~.re'moval as envisaged under Order it .. XLI _Rule_ s23'of cpc.

in e EdefevridantslHmcontested the said civil appeal and . eonptended -follows:

the learned trial Judge committed an illegality which the in refusing to take evidence respondent. intended to adduce by closing the case on 13w6» 2007 which necessitated filing of an A"

application under Order XLI Rule 23 of the Code of Civil Procedure.

(ii) The High Court having found thatwit.' not be possible for it to record""ei/idericel ' C' issued the following directions.

Regarding the mai.ntaina1jili:t'y..V_of 2 High Court) was Corisideredllliylozigr llo.nl'.ble..ESupreme Court and was held as C C "Sofar_ the c§';onter'itionA"of.the learned counsel for the:fC'suit:lul)las instituted in Specific Relief Act.

our opinion, the same Appellant has not only prayed' grant of a decree for permanent 2/irijaliicgtionllatitlv has also asked for passing a 3 g. :_for mandatory iry'unct'ion directing the to handover possession to it.

y prayers, in our opinion, would not come "wit'hin the purview of section 6 of the Specific Relief/ict. " /:F( In so far as second contention raised by the piaintiff regarding rernanding of entire matter to trial Court was considered and order dated 29~10~2007 R.F.A.1966/2007 came to be modiﬁed as'7i1_:nder::Vlt'll {i}

(ii) {iii} The learned trial CoL'irt"'upopn the evidence as J Court shall transmit the1'ecot19,ds-tie... First Appellate Court Loopy Vfjof its report annexed S' ~ ., Such an A.e:v_.e_reisep by'll'the"--i.p,Ee'arned trial mlustp cvorripleited within a ~ ~oi'*.lfpo11lrt from the date of ' coin rlicatio-n' of this order. 2Thellfirstapptellate court must dispose of tlieaiirstpiappeal on receipt of the said "order as also the evidence as adduced as it "4Vlexpeditiously as possible and not later A tlrian 8 weeks from the date of receipt of S 4' the said report.

The Hon'ble Supreme Court while issuing on Special Leave Petition on 28~1~2008 had 4/ stayed further proceedings and said order was in force till disposal of SLP (Civil appeal No.5201/2009 on 38"

2009. This fact is not disputed by both the sides." . R

65. In the meanwhile matterpwas .iisti'cd'_~blefovi'e tlie trial Court on 5w11~200'7 puiisuziiiti' oi{éi'epi4'C'T1.Qf remand by this Court on"i2'*3-:..10w§O()j'/' was-C' adjourned to l3~1l-2007p_____ifor._ 'd_efend"ants_:eviden.ce. However, no evidence"wirasl'-teiﬁVc1ered_ the defendants, but defendantslfiled for amendment of a_pp'lic?aton seeking permission to file statement, (iii) application seeking ""peirniss_io13: " produce 8 documents, (iv) _ application for"i*ec'a_1_l,of P.W. 1. 'Q Court on considering these applications ailo«wedv'i'.iro' applications i.e., production of documents recall for P.W.1 [on Payment of costs) by order l3--l}.w200'7. However. plaitniff did not tender ""l'llII1S€flf for further crosswexamination but challenged 4/ 84 the said order in W.P.No.18328/2007 and order of trial Court dated 13-11-2007 came to be stayedj'*-!jfy..2_2't}}is Court by order dated 28-11-2007. 65.2. The judgment and decree which had been challenged before court in SLP [Cix/il} No.127.{g)'/..2oos'n {c.A.uNe.5:é;o1~/12009}V2 and which was pending came E>ed,.dispﬂosed»Adf on 3-8- 20o9 by modifying the feyftldis Court dated 29--10--200'7:.. As narrated above there "an -of further proceedings from :28--.1 ~2:oosjtif11r es, 1 pursuant order dated 3-8-2009 pas{se'dd_byd.ti1eV_VHon'ts1eTSupreme Court trial Court took 1' upkhe :s:1_itgand commenced its proceedings and it was trial Court on 14-9-2009 by posting the ma'tter!0for"" defendant's evidence by recording in the order sheet as under:

"1 4-9-2009 P-Smt.Sanujajitha. D-S.Gangadhar Aithal, ».

For orders.

Defendants counsel -

Aithal fairly submits~~~ he wiu¥a<1"eaa defendants evidence. :80 ::t'he* passing orders does not .

Case posted-defendants' directed by V .~H_on'ble" ~..-.Siao're_meiiiCourt by 16-9-2009. " _ L. ' _j_v-.Jad'ge.14/9."

Thereafter"iiitei91'O'eu.tOryf- i.A.N0.8 came to be fiied ZsveekiilgiIjro-duetioniof'Certain 'documents. The said applicationearrie beiresisted by the plaintiff by filing objections a1icE.VQn"'eo11sidering the same trial Court by ' ._01'--der 3-10-2009 dismissed I.A.N0.8. In the H 'nieam}vhiiie¢_ diifﬁlldallt had filed his affidavit in lieu of his examination-inwchief on 16~9-2009 and had got marked to 13-9 and was Cross examined on Various dates. Defendants did not examine any other witness I 86 and closed their side. After recording evidence records came to be transmitted to this Court by this Coei¥if*i'.. on 23-10-2009 which came to be received in H on 7-11-2009 and appeal was listed ~.. 1-12-2009. Matter was heard by this Court on various dates' and v\1fas"re1eas'e'd- from_§palrt_l; heard on 19-32010. The peper 1:;oo1§'+wee lﬁlefd by the plaintiff on 16-4-20 -:i2vais'before this Bench on 17-6-2010 and argtiirnfente vp:ad.'d'ressed by the learned ad\ro_icat:53s'__. lhoth the parties on various"dat'es:-flipttip 1 V V 9}-'111\TDINGS:

Re:l5oint.N.-0.1 and 2: The contentions raised 'b;\f'the this appeal on both these applications being intelri-_llii-iked and interconnected points 1 and 2 f_'fo1'm11,1latedVhereinabove are being considered together. A be noticed by this Court that when appeal R';p;F.A.19es/2007 came to be disposed of 2940-2007 88 proposed to be urged in the written statement byway of amendment as also the additional grou'nds"p:'-ﬁnow proposed to be incorporated in the appeal when these matters were heardamii obvious that wisdom has in the day which fact 2"<i defendant in his affidavit applieation for amending written statement extracted in succeeding' of the applications having' having been opposed by the plaintiff have been considered on teleifisiire that it reaches finality. application filed seeking to raise add.itiorial.VlA.g"rounds the defendants have proposed to ll""'-..l:"'e.ontend---ll that the rejection of the application for a.n1endment of the written statement on 13-11-2007 by "the trial Court is erroneous and also to contend that Q/ 89 appellant No.2 has become the absolute owner of 'A' schedule property by Virtue of sale deed dated 5--10--2000. In the application filed seeking incorporate paragraphs 26 [c] to (e) of the defendants have stated that__,..by_ by "

oversight the defendants codld written statement after th.evp""trialllA'Cloi1r?y plaintiff to amend the dated 14-9-1995. It is contelri'de'd_v.by delay should not be constrtied as solef"_gro'u'nd to dismiss the applieationorder VI Rule 17 Civil Procedure-- »-about by amendment would notybe appliicableA"'tol":the present suit. The learned gouiisei "for thewlplaintiff has contended that if allowed it would Whittle down the cross- exalmiriationl of P.W.I dated 23-3-2006 and admittedly ..p]aint'1ff has not tendered any evidence on title and if "'._arn'endment is allowed it would create chaos and a V' ""denova trial has to be conducted after framing issues 6%/A 90 afresh. It is seen that Hon'b1e Supreme Court while directing the trial Court to record the evicienc.e.._ has held "that as ordered by this R.F.A.1966/2007 the additional em.-iiigcetrroiii tilze"

defendants is to be recorc§éd'*}"' Pu_rsu.ant_Vto"V*'sai':i direction defendants have tendered " eVid.e'nir:e;..p When such being the qtrestion of defendants clairninjgi. of written statement at__ this stage :iV0i;i1.g;1«L.I'V";V;1§jt arise. More ' particularlyf: '".p1ea._Whi'eh was available to therndlanéﬁi' noltlvlbeen urged either in RFA 1966k filed:_Cjv'w~"first instance or before the Hon'ble in Civil Appeal No.5201 / 2009 idefenidantsp cannot now attempt to raise a new plea is not the scope of direction issued by the H.en'bi'eA Supreme Court in C.A.No.5201/2009 dated r 3/53069, it

71. It is to be noticed on allowing the appiieation for amendment of plaint on 14-9-1995 triai Co'ti:I"lte..had posted the matter on several dates for fiiirigiif' written statement by the defendants Vtiji» 15-4~ 1997. Eight (8) Aadjouriinient-shat/e. ' Thus, it cannot be said thla-t___defe'ndants opportunity to defend their .efi"eeti1.zue_1'3i. fact in the affidavit filed i11ﬁisnpAp0:jtvV9"bf»the application for amendment atw.paragra}:ih'i2 '- .th_e" defendant has stated to tile, eiffectn jj;

I have not ﬁled l'any:_ statement. It was pointed the and to my counsel "during argaments before the Hon'ble 1-i'v:'gh._ Cotlftl that additional written was not ﬁled after the ' antendhnient of the plaint. Hence, after the by this Horfble Court I have ﬁled an .9 agﬁpiicatton to amend the written statement and same was disnussea on 15511-2007. And now I amfiting this application seeking amendment of the written statement. "

'71.} Defendants admit that there has been a mistake on their part in the affidavit. Evento be accepted at its face value, nothing defendants to urge this conten'tion"at appi'opriate":sta'ge 7 which was available to them iiamely eithe.:rA'befor=e Court prior to order of on .29~+f_llO When the remand order eame "before the Hon'ble Supremeppw Civil appeal No.5201/ when further proceediﬂgs and order dated 29- came to be stayed by the by order 28-1-2008 or fina1ly,when' matter came to be disposed off by the Cl] supreme Court on 3.8.2009. This factual fully within the realm of defendants nothing prevented them to urge this contention before it the Hon'ble Supreme Court. However, defendants were Cicorisciously content with the order passed by this Court in RFA 1966/2007 on 29-10200? which came to be modified by the Hon'b1e Supreme Court on 3~8~2009 whereunder Hon'ble Supreme Court directed the trial to record the evidence of defendant only (as ordered by this Court) and retransmit the«l:_:reCo»rdls this Court for giving fresh findingj A y_ 71.2 Having been givleiidthel'"opportunity~-by-5the trial Court by granting more than 'ten adjoitirnrrients as observed hereinabove tzgwfiifig"ntatplptraised this as a ground in the appeal on 30-8-2007 and having" '-appeal memorandum by incorporating. grounds on 9--7~20l0 and consciously,pomitlting tofraise these pleas, defendants A_ cannot allovv'ed...to.v improvise their defence stage by

-by step and in the said process elongate andsifeﬁpand its scope that too at the cost of the l V ._plaint1f V It is no doubt true that new plea can be raised even at appeilate stage as held by Hon'ble Apex We 94 Court in Ishwardas Vs. State of Madhya Pradesh and others reported in AIR 1979 SC 551 which has been pressed into service by appellants counsel. It true that amended provision namely eI_n'barg'o-.__ __'11Q__w _ placed by insertion of "proviso'>'W to Orderjhiijﬁpitlule would not be applicable to pending;'prjoceuehdilrigsl by Hon'ble Apex Court in"Sta_t'e of Town Municipal Council 765.

In the instant case their written statement on . 1394" dislclose what their defen:cellll\lév'asi;v?.llcontended plaintiff did not have a'-rightloxrerensiu property. The defendants did not eylenycont-erid that they are in possession of the property. Inwfact it was contended that someone V"oysi11er [not even disclosing who they are) Wliich the principle of "Jus tertii" {who pleads title some other person) By way of amendment it defendants I and 2 are now seeking to add paragraph ....§l6{b} to 26 [e] whereunder they seek to plead: plaintiff (W 95 was not in possession of suit schedule property and with a motive to harass the defendants not to purchase the property and to knock of the subsequent events said to have taken year"

2008 and 2010. In these attendant' .l would be necessary to quloteythel'judgement:of Court in Rameshwar 'pandVAo.Olhe_rs.._.LVsil and another reported in (1§t?6) '1«..y'f§(:37()4.lV"il94,ll:whereunder it is held as followsﬂ V' l x V ll " » '*3 .. of subsequent rbemspelt out. First, its b'ear"£.ng.o'nY'the~ action, second, on the nature roflthe "retief«._:ariCl third, on its importance 1» to or...de's.tro'yl substantive rights. l/Vhere nature' 'of--«the relief, as originally sought, obsolete or unserviceable or a new o~Ji{"""'.relief will be more efficacious on accoitnt of developments subsequent to the suit"

llordteven during the appellate stage, it is but fair 3 that the relief is moulded. varied or reshaped in the tight of updated facts. Patterson illustrates this position. It is important that the party 97 fundamental impact'. Venkateswarlu (supra), read in its statutory setting, falls in category. Where a cause of action is but later events have made up the deficienCly;':.t:"' l"

the Court may, in order to avoid multip'l'icity'of litigation, permit amendment and cvontinue--. proceeding, provided no _prejudice._ is caused to the other side. All the--s:e*~._,are.V' exceptional situations andllju.st~~.canno*t dbne if the statute, on "tvliiclt_ th;e"p,roceediI1g is based, inhibits, otherwise, such charig,e_'.in of relief. The primaryll"conce'r_n to implement the,.j,us'tic'e Rights vested by virtu-.e' be divested by this e uitabtel Cou.r'tsV4"d_o"*;5er oten take notice o A. -events" that..l1appen subsequent to the filing of and'l'a--t...«times even those that have during the appellate stage and permit be amended for including a prayer fovr'relief on the basis of such events but this is "oVrdinarily done to avoid rnultiplicity of proceedings or when the original relief claimed has, by reason of change in the circumstances, become inappropriate and not when the 98 plaintiffs suit would be wholly displaced bu the proposed amendment [see Steward v. Nortih_44l_:'r._V' Metropolitan Tramways Company} and A' suit by him would be so barred by ltmttration.jV'r~.: ll" l One may as well add, cautious judicial cognisartce :1-o;,t':' 'A events, even for the Vlt.*nttedl*a_nd exceptdonal purposes explained no ._l'corl'1.*t countenance a party this manipulation, a and plead for rellefonthe it it 71.4; allowed to come on record dihsplaheelllthe plaintiff's claim and lead toll"aVlsiti1atiori' xiVi2ere.fresh issues will have to be framed and' xﬁtillllhave to agitate their rights with denoba. trial: Hence, on this ground also present 7app3ic'avtlio.n" foramendment deserves to be rejected and acco1"di1f1g1y4~i't is rejected. lb"~«_71.5 In View of the above discussion this Court is oi; the considered View that the applications filed by the $/ 99 defendants Mis.Cvl.1 1451/2010 & 11452/2010 seeking amendment. of the written statement and perrn"is:sion.A4to raise additional grounds in this appeal consideration are liable to be.<disn1is:§ed_,. Accord.ingljJ, 2 they are dismissed.

RE: POINT N().3:- _ _

72. It is contezidrgdi Aithal that the suit filed under Relief Act, .1963 is ij&*thel:rHeason that Hon'b1e Suprernef of the Civil Appeal No.52£_ll/ has given a specific findinglttaiat in terms of Section 6 of the.iSpecific l€el'ief__;%_\_ct is not to be accepted and as such, » __cia:imf the plaintiff to treat the suit in question as

2. Section 6 of the Specific Relief Act ought. notto be accepted. He would further submit that if tlhe"suit is not based on title since the plaintiff himself 2 admits in the cross~eXaminati0n dated 23.02.2006 and (%/ 1 00 08.06.2006 that he is not claiming the ownership over the suit schedule property and 2"" defendant lawful owner by virtue of Ex.D~2, namely§'_:0's'ale'V:~- Glands' _ dated 05.10.2000. A person claiming tpos§esscwfy<~pi1c1e ~ vi cannot be granted relief against.'a1'la*.=;fful._owr1er Zoofpthee suit property.

73. In support relies upon the following ju.dgmen.ts.::¥_ 1 _ 'Reporter 49 :0 Ftilklzrullixh anci:§O'thers Vs. Perka Pocha llll H 2' lAIR.01€§A2'f"Ai1Iahabad 669 "Gt1rtesh anciffanother Vs. Dasso and another 1 ».74=.;'Per._cor1ira, Sri Rajeswara, has contended that the Hon'ble Supreme Court only states that tl*1e~.s0i;1g._itVir1 question was not under Section 6 of the 'll.' Relief Act while considering a plea raised by the plaintiff/ appellant regarding the maintainability of the 101 appeal and contends that plaintiffs rigght in the instant is to be determined as a right under Section the Specific Relief Act and for determination of Section 6 can be pressed into service an_d"-.p1ai'_1'i.tii"fh V' have to prove only possessionlhhandif the after six months from theédate'---cof=dispossessiori 'and; defendant will have to prod{res._V'h'be_tter" submits that the defendants in sotnebody else which attraetsthe prin:ci})1eV._VQff and as Such he contends In support of his subraissio1i.;iV5 he toilowing judgments: ~ (1) h19s9i(41__she«c .' _ _ Kris';'-2,nCsra.;'ri Mdhdle Vs. Shobha Venkat Rao 51 ~Gi*r_i';'ciuJwa and Ors. Vs. Basawwa At this juncture, to examine the rival " contentions, it would be necessary t.o extract, the prayer in the plaint, which reads as under:« I 02 " The plaintiff most respectfully prays that the Hon'ble Court be pleased to grant:

a} A judgment and decree of perpetual___ iryunction against the Defendants 1 to directing the Defendants to rest:o:re' ' :_. D possession of the schedule pre,rn;ses_l.:'to_ the plainttjf and no:fhto"irttet;fere Plaintiffs lawful -.

eryogment of th_e'-uschedule int any manner whatsoever. D "D V

b) A judgrnent Cl.?lC.l..'_ against the Defendants is for =_iry'unction directing the" Drfenoiants restore the """ pjossefssio'n.gof the'"'B'"schedule property, as 'A,B,C,D' in the he and there may be a 'decree for permanent iryunctton against A.t'heh'Defendants for 'C',D,E,F' portion is marked in the annexed sketch as 'C' schedule to the plaint ' hand there may be a decree for the enquiry into the mesne profits under Order 18 Rule 12 of CPC, and also there may be a decree for the cost of the suit, with such other relief or reliefs as this g' .

103

Hon'bie Court deems ﬁt in the circumstances of the case. "

'76. The prayer that has been the Plaintiff in the suit in question is for pssr.é¢Ssiéi1'_of Schedule property. Vlfhen the:=.p1'e:sent lap'p.ea-lllwas:'ﬁled at the first instance and came" to disposed of by rernanding the trial court by order plea had been raised regarding the of the present appeal €115' S't4él§$F;l%lfHét)I1SiCl€1'aUOI1 of the the Hozfble Supreme Co111'tl_tlWl_o raised as extracted in the preceding"-VpVa1*t_of Athislorder, out of which one of the c0nter1t.ions was"'t'hat suit was under Section 6 of the Act and as such, appeal was not nraintainablle against a judgment and decree passed by x the ztviiital court. The said contention came to be S' 'tdrlegéfatived by the Hon'ble Supreme Court by holding that

----the appellant / plaintiff had not only prayed for grant of i 04 decree of permanent: injunction but, had also prayed for passing a decree of mandatory injunction directing' the defendants to hand--oVer the possession as such, it was held by their prayers would not come 'Sec-ti.C)11_:f6 of the Speciﬁc Relief Act. said.

finality and the same is l H' V

77. The prayerﬁﬂthaft extracted herein above would4_:ciearly""goe's plaintiff has sought 4? for mandatory injunction and is seeking a direction:_lto to restore possession of 'B' Svcihvpelduie propertypywhich is marked as ABCD in the ' yysiietchairlnexed which came to be marked as EX.P-- 1. In of I am of the considered View that the said. plea regarding maintainability of the suit does not A Ayarisje at all for consideration a.nd if the plaintiff is able to ljdemonstrate that he has been dispossessed by the C?/.

1. 05 defendants unlawfully, he would be entitled for a mandatory injunction and in such an event, the remedy that would be available to the defendants is...tieD1;ake recourse to the remedies as is available under l'av.i,1' .

78. T he Hon'ble Supreme has in following judgements:

1 (1939) 4 sec 131 _ M 1' g Krishna Ram Mahale &Lrs.l Vs. 'I1/lrs.

Shobha Venkatlfetret 'in 1/97 Th.e proposition " accepted by a Dii;t?3viorl?*Bench thL'_saC'ourt"'in Ram Rattan i:Vs5 The Division Bench _tf1r_ee.:llearned Judges held that a _ true"-«,owner__ has*...every right to dtspossess or to throw atrespasser while he is in the act or of trespassing but this right is not ' to the true owner if the trespasser been successful in accomplishing his l .. possession to the knowledge of the true owner.

such circumstances, the law requires that the true owner should dispossess the trespasser by taking recourse to the W 306 remedies under the law. In the present case. we may point out that there was no question of the plaintiff entering upon the premises as trespasser at all, as she had entered '7' possession of the restaurant business---a.rit:l the . premises where it was conducted it and in due course of law. Thi;s;'_defeny:la"ntA..% was not entitled to dispossess the unlawfully and behing1l':'he:':_» baeic«_as been done by 'present It was pointed out bgV_Mr. some of the obser:'$ations;'_' abooe were in conne:.ctio'n_ jitedfunder Section 6 of the ""Spe'cific'¢f:,Rei'ief--. 'Acty-.1963 or analogous provi.sions'lrin"thle'~_eart'ier Specific Relief Act, 18l7i?f.glTo our makes no difference in has been filed only afew of plaintjff being unlawfully

--,de_p'riv'ed" of possession of the said business it'll-..Vrandl"_t!7ie'preniises and much before the period of.."six.rnonths expired. In view of the aforesaid con;'lus:'ons arrived at by us, we do not propose V 'to consider the question whether the agreement it between the plainti[f and defendant 3 amounted to a licence or a sub--lease".

2) 1 07 AIR 1968 SC 1165 Nair Service Society Ltd, Vs. K.C. Alexander and others

13. We agree as to part of the but with respect we cannot subscribe" "

view that after the period suit based on prior possession.

possible. Section 8 of the Fypecyic 1R?eliefl'Ac?t."' S does not limit the kindsfqf suit lays down that the, procedure-.laid down... the Code of Civil Procedure ;*.gTLivt.l§"L".lggfv;'.F3il_';'"¢f)llOLU€()'.. This is very dyﬁerentfroing ;a"suit based on--*'epo.ssess¥ion is'~inbon1petent' after the :exp.iry .oft3:"rrionths_:."Under Section 9 of the Code of Cibil all suits of a civil nature are tra'able'v" excepting suits of which their c_ognl_2anc'e'"is*either expressly or impliedly barredI'*No prohibition expressly barring a suit cinlpossession alone has been brought to our notice, hence the added attempt to show an "injplied prohibition by reason of Section 8 it (Section 7 of the Travancore Act) of the Speci ic it ReliefAct. There is, however, good auihorityfor the contrary proposition. In Mustapha Sahib Q/S I08 Vs. Santha Piiiai, (.1900) ILR 23 Mad 179 at p. I 82_Subramania Ayyar, J. observes:

Jr ....... ..that a party ousted by a has not better right is, with referen.r;'e---- person so ousting, entitledto recot.)er'ui}*»tueV of the possession he had heldibéeforey the'-ousterji 9 even though that possessionywas 'any"> it title." L» y y _ _ "The rule in question firmly est"ab.l_ished as to render a tenytherrieii about it quite superfluous. I QB 1 and the J'udicioi_C£ornmtttee in Mr. Sung:iC1}f_4«._ (__t888~89) 15 Ind Ismail Ariff Vs. {Ma-homyeid ':Gihou4sr,.tV:{"i89$} 20 Ind App 99 {PC not to mention rizimeroyus other decisions here and _ in to the same effect, are clear aiitF1orities""**iu"i'V support of the view stated avézjoijaf-i3i.:'§;;.,..Section 9 of the Specific Relief Act A ﬁossibiy be held to take away any available with reference to the well» "re%:ogr11Zsed doctrine expressed in Pollock and E Wright on possession thusrw Possession in law is a substantive right or interest which exists (R/, 1 O9 and has legal incidents and advantages apart from the true owner's title (p. 19)."

In the same case ................ ..ihis, that plainti[f in possession without any title . to recover possession of which been forcibly deprived by a dejlendlaniv title, he can only do so under provisions Section 9 of the Relief otherwise. It is not necessary tour-efer the other authorities""%son.ie whichyare already referred to in the_judynieht'V u1--1devr.j'apj3eal and in the judgnfient reported in Kuttanrv \--<'.'s.:fVv Thornrnan Mathai, 1 $1956; Ker 179). The last cited' the extracts from the leading which we would have lilycedllltol refer} We entirely agree with the s_tater.ment"oj***tt'te law in the Madras case from which we have extracted the observations of Judges. The other cases on the s,tibfect'A are collected by Sarkar on Evidence "under Section I 10.

.14. The Limitation Act, before its recent arnendrnent provided a period of twelve years We as limitation to recover possession of immovable property when the plaintiff while possession of the property was disposse_sse'd.:"»Vi. or had discontinued possession and was calculated from the date, of dtsp'oss;:;s5io;:_ or discontinuance. Mr. Na_n1b:iarfi»arrgues--. that .' there cannot be two _ periods. of lir'nitation';*. namely 6 months and jrorlsluitgs on possession alone and that " the longer period of limitation ret}u;resl--_y by the plaintiff. We do not .lVo"dij;;Ig§v;-..'i=here are a few in V view was expressed llblut since been either The uniform view the if Section 9 of the Speci ic Relief Act'-.is"<lutili'seldllllplaintiﬂ need not prove _.1..itle the titlellsof the defendant does not it a_vail.._ hin1'l"'v'ﬂ-'lien, however, the period of 6 passed questions of title can be raised 'b'y'V..the defendant and if he does so the A must establish a better title or fail. In words, the right is only restricted to possession only in a suit under Section 9 of the l Specific Relie_/'Act but that does not bar a suit on prior possession within .12 years and title CW,

3) need not be proved unless the defendant can prove one. The present amended article 64 and 65 enables a suit' within 12 years; dispossession, for possession of _ property based on possession and"

when the plaintiff while:-'in' 'poss'lessbi.\3ﬁlI, property has been dispossessed. for possession of inimouabllle_ oIf__a_ny b interest therein basedll"onlb'title. The«_lliarhen.EClmer1t is not remedia"l~..but declaratory of the 'law. In our judgment the suit cornpeterit. "

Raju and another V _ --_ _l "l Row Vs. Dharrnachar, H903} a bench of the Madras . _ consisting of Bhashgam Aygangar 1a::1d_ Moore;----JJ'., held that possession is, under ..Vthe'Intlian, as under the English law, good title but the true owner. Section 9 of the Relief Act is in no way inconsistent " ,vu5~ith the position that as against a wrong doer, ., prior possession of the plaintiff in an action of ejectment, is sufficient title, even if the suit be brought more than six months after the act of H2 dispossession complained of and that the wrongdoer cannot successfully resist the by showing that the title and right' possession are in a third person. view was taken by the Borribay _ ht Krishnarao Yashwant Ghotikar, (1884) ILR 8.B.om .3&"'7'.t."'Tl'hatyV1,{},as"also': it the view taken by Ailahabad Court_See Umrao...iSingh""»'s.: 36 All 5l=(AIR 1914tAu.5,/gy 'w.'ZaiiAhmed Khan Vs. Ajudhia Kan.di;§_ j(.189i}_ -'All 537. In Subodh" eqse ti?s."'1%fro?z;:an§:c}i'oj' Bihar, AIR iyh-- Court adhered to the" th'e-..Madrs, Bombay and The contrary view takehiby igh 'Court in Debt Chum

-Boldo' Vs.'Issui"- Chunder Maryee. (1883) ILLR 9 A Evtta2:--a'Hossein Vs. Barty Mistry, (1883) _ {LR L9.':(:a1 130, Purmeshur Chowdhry Vs. ergo V ~ VLa1l'»-__C*howdhry, (1890) ILR 17 Cal 256 and Niso.«:"" Chand Gaita Vs. Kanchiram Bagani, it -$899} ILR 26 Cal 579, in our opinion does not lay down the law correctly.

(R/.

4) 113 AIR 1972 SC 2299 M. Kallappa Setty Vs. M.V. Lakshrninaraga'n.a'r.. Rao,

5. So far as the question of possession:

concerned, as mentioned earlier, both" trial; Court and the first appellate: court°- have accepted the plaintiff casegthat was in 3 possession of the e:.;¢rltj§s~mcg"

Purchased Elks same" air: it 94 7:' is essentially a finding is based on. vevide~nce.:j in our opinion, i in .to':--l'the..eonclusion that the lpossession after the sale vic,ie'eci._7;inWhis"*--.,fa.voiir=-Wis not a relevant kcircumstan-ce.t "of opinion that it is an ekctremelyv in;p'orta.r_it 'circumstance. The plaintiff strength of his possession resist V ;;nte~rference'*'ﬁ'*om persons who have no better 1 ~tjitte'_'t:h"an himself to the suit property. Once it is as the trial court and the first app.e'llate court have done, that the plaintiff' ll in possession of the property ever since 1947 then his possession has to be protected as against interference by someone who is not proved to have a better title than himself to the

5) 114 suit property. On the finding courts as regards possession, the plaintiff was entitled to the second relief asked for by him even if he failed to prove his title satisjactorilg.

in our Opinion, the High Court was nQt ~ interfering with the judgment of as ajfirmed by the first appeI1ate.__':

regarding relief No. 2. V (1998) 3 SCC 331 _ _ ' Thirumala Tirtipati Deeeeihiingm 'Vs."iK.M. Krishnaiah _ 3 5 it _ _ 1 7._*--In that' was the plaint_iﬁt '_hel'wds He sued for possess:'onVVl3ut'..the__ suit was ﬁled more than one = year."after:_L"cl.r'spossession. Under the _ Speeiﬁe'vRelief;{lCt;71877 Section 9 permitted a dispossessed___plaintff to sue for possession gear and if he so sued, question of defendant was immaterial. Now underpslection 6 of the new specyie Relief Act.

it the said period of one year has been 3 " reduced to six months. Question arose whether the suit by the dispossessed plaintiff: after expiry of the Imgear period, was maintainable. 4/, It was held by this Court that even if the time for filing a summary suit under Section 9 of speegie Relief Act, 1877 expired,jgizilef dispossessed person could still file suit: S possession on the basis.:of».prior possess'ion:,. Such a suit is described a's».one._ based "possessory title". Bu.f;__. in a.__si1it dispossessed plaintii}I7"rbeyond__ lggeriod specified in Section 9'ofA.t1hellSpecijic' 'Rel=ief Act, 1877 {or Section-A @5263 Act) the defendant who plaintiff could defend 'tliltic-clnd if he proved title, heecould. re'i.nd'in.t:,1inl"possession. After an .1vexhau;sttole§:,3 vrexaminationw-"of the law on this J. [as he then was) ezaise.-we111ee1sje1:e«lets"(A112 at p. 1 1 73).- 'i_1l/men, ltowever, the period of 6 months passedyquestnions of title can be raised by

-vthebdefertdant and y' he does so, the plaintiff "'r%iiis__t'ijestabltsh a better title or fail." supplied) A The difference between the right' to possession in summary suit under the Specific Relief Act' and a regular suit based on 4%/, 116 "possessory title" was explained further as follows (AIR at p.1 173):

"[The right is only restricted to possessic.nli~.V_ only in a suit under Section 9 of the "

Relief Act but that does not bar a possession within 12 yearsand title be proved unless the dejendant can prove' one[.i"57i.A saulrenmhasis ss:+pp:::ed2% On the question whelthexr the Vldelfendanit, in spite of disposse.ssing*""the{'jypllaintiﬁfAcould, by proving title, reniatn-iris. it was held that the situation, be periniitted rle_tain'_" 'possession if he proved"jtt'tle.*f:.;It stated' that the law was so laid -. Vs. Whitlock and was accepted lifioulse of Lords in Perry Vs. :.--ClossoldA that" also the law applicable in our c.ountry'"and it was this principle that was y into Articles 64 and 65 of the Indian Act, 1963. The said articles were, it u..;'as~.held, declaratory of the law. The following "observations of Hidayatullah, J. {as he then was} place the matter beyond any shadow of it doubt {AIR at p. 1 1 75, Column 1).-

"H7 "(Asher Vs. Whitlock} lays down that a person in possession of land has a good title against all the world except the true owner*and"--_' it is wrong in principle for anyone wit.holutwwl_title or authority of the true owner to dispoVssess.:i1i_m and relying on his positiori"a:3._ ejectrrient to remain "possession.."..,:A._l'"

defendant in such'Sa""~.caseA"~n1ust himself or his predeces'slor.VVa ualid_'legVa:.l title or..."{name of in On the facts Nair S:.eriJ_'ice'_i_Societ'y the said Society vdefgfjdarit raised a plea_ that the plaintiff-

vi espori'derit*fi.; S that" "the plaintiff was State which was the real owner, further that the State had

-put' 'V the'-7' Society in possession, after d.i:spossessir'iy"Vthe plaintiff. The High Court 1 held that it was the Society that had ' the plaintjf and not the State.

«finding was accepted by the Supreme ''Court. It was therefore held that the suit for possession by the dispossessed plaintiff was Inaintainable even though the one-year period under Section 9 of the old Specific Relief Act. 1.18 1877 had expired, that the suit would then be one where title could be pleaded by the Society to remain in possession, but that the failed to prove title in itself Nor did prove any authority from the true "owner to' dispossess the plaintﬂ Socieltyllnot, therefore, remain in possessfionﬁ However, this Court, the Society -set roots 'M title under a second Ki:tl'iakapattorn~iseei para

33) and with i..:iewii'to"=._5horteh' further litigation, an the written statement of by this Court riiatfier rerrianded.

.... bejore us the in Nair Service Society

- are S applicable with this '. -- .ldxﬁfererice'rianielylthat inasmuch as,min view of our ;finding""iriilPoint Lwtitle Qf the dejendant not been extinguished and is ' as of today in respect of the suit property, the plaintj[T1respondent' who was __ A "dispossessed on 30.8.1969__but who applied , for possession on 25. 7.1970 beyond 6 months it it from date of dispossessionwwould not be able to recover possession. The TTD could remain %/..

H9 and retain its possession. We hold accsordirigly Point 3 infauour of the appellant.

79. In View of the above Point herein above deserves to be ar_g's\veli'edv in favouiyof plaintiff/respondent and aga1'nlstl.. 1 lthej', appellants/defendants by stlit htpught is maintainable. l V. l l K it it RE: POINT 1\lQ..:fl:.+_ p A _

80. Sri contended that suit nonjoinder of parties and suit schedule property was with Madhwa" Saiqglhaland Vittal Rao and possession '~ _wa.;-ip_jdel;>iiie1<.eAd bl}VflVl\'/ia'd'l1wa Sangha to the 15* appellant on this fact is evidenced by a letter dated has been sought for being produced way .o_f3 additional evidence along with application and contended that even according to the plaintiff, _t_h;}ee defendants i.e., appellants and late Hanumaiah, 6%/.

120 were joint trespassers and claim in the suit beinga joint claim, failure to irnplead the legal representat--iV'es"'.,of deceased Hanumaiah who died on result in the appeal having been-.abated_ilagyainlstlfjlate Hanumaiah and consequentlyf'thief 'has' abated against all the defendlanpts as such!' he submits that suit bad"'foi;c_:ii1'iVsj.oinde1*Vofnecessary parties. He would plaint, it is stated that defendants on 25.09. 'knowledge of plaintiff on 26O®91:VVy1'gU9V"~3'V.':};'.:JV#-'IT?' Aiikiédiiwa Sangha and Vittai Rao and hence, not making theIn._paI'ties_:Vto. suit is bad for nonjoinder of '"pparties.' lllll "lI~Ie would also submit that the lithe plaintiff that Defendant No.2 being the'--..sonv'eflA.:late Hanurnaiah being a party to the suit H""'--._f"wfouldnainount to representing late Hanumaiah, should . be accepted since, appellants are representing in

-tlileir individual capacity and contesting the suit and appeal. and not representing the estate of the deceased as legal representatives of Defendant No.3 and estate of late Hanurnaiah having not been duly since there are three more sons and datightefs 'of f'1at_e'"~_ Hanumaiah and any decree. if :passe'd, wo°:11--d_:beep'rn_e an ' unwexeeutable decree, since it cannot bep.s-pljpt and eveng otherwise no effective decree-.:e'an_be support Of this Pr0P0Siti0"g1.,;."'p'-- pcouvnset for the appellants haswreliedp Ram Dular Singh and :',0therS.VV f 2 Aliuhtgvsr' sC.1p19§if'1 " State ojgtgfqrqr Vs. Sayed Mohd. Baquir El Edross r at _ t1:9'73)t1r son 63 A g Prasad Gupta and Others, Vs. Murli (i966) 3 son 451 A' Pandit Sri Chand and Others Vs. M / s. Jagdish Parshad K ishan Chand and Others 19;' 1977 Himachai Pradesh 56 Prem Singh Vs. Smt. Rcy' Rani Devi, AIR 1961 ?unjab 555 Kedar Nath, Vs. L. Manak Chand and . 1 " 5 AIR 1962 Supreme Cour£'3§'--.r State of Puryab Vs. Na1hu.V_%Raﬁ1 V _ 1 5 AIR 1977 Patn'-.:;.__29 5 Munshi Singh 'anc:5 Othéffs 'V:S_.AA,VBabula[ Singh and 0th'?-'54, H V' AIR; '1 €.1;6:§~<)'ij5.ss'g... 3? 5 Damdd'<J...V_ Patrvc_L""'-___Ch'1Cr'._' others Vs. Kanchan 'Sqhuan1iVVdri:d_E)'t!1érs;' " AIR V195.5V€3a1Vc::utta 588 5 Manama and others Vs. Abdul Mcyid

5. ;.'a.na"othe;rs 1'1 " . feameshwar 1963 Supreme Court 1901 Prasad and others Vs. Shambehari Lal Jagannath and another. a/ 123 12 AIR 1975 Supreme Court 733 Harihar Prasad Singh and others Vs. Balmiki Prasad Singh and others 13 AIR 1986 Allahabad 334 Gilja Shanker Singh and others Vs. RCU11 A ' and others, _-

14 AIR 1960 Madhya Pradesh 322; *3 = 3 S.Chatte:fji Vs. Dr.T.B.Sarvafs: others'; ~ '~ 3 15 Am 1974 Al1ahabad"2_5--?Z A State ofU.P. Vs. Reishn1ci»DepVi 16 AIR-i.9j?l3lﬁndii-11a--.1?'1;a(ics}1 112 Vs. Askar Nawaz Jung arid others. V' Perl'c'o_r1t1ra, Sri Rajeshwara, learned counsel for the p121lr;1';il;l'vA.l1.a é,'«ponterlded that death of Hanumaiah was not trial court and it is only in the appeal r11ei310 "has been stated that flanumaiah expired on " 9.;s,.o4.'1-€598 and submits that Order xxn Rule 3 has to be 3 "'._eO1;s;trued liberally and admittedly, it is the c1eI.'e11da31t No.2 3 " who is claiming possession of the suit schedule property and by virtue of the claim made by the deceased Hanuniaiah being continued and represented by his son. the Defendant No.2 in the instant suit, the estate of the decease.d'e.is sufficiently represented and hence contends that ap'p*eal~ A' not get abated.

81.1 lt is not in dispute Vtihatgfthle appellants expired on 2él.5.199i3'i..e., dxu-ring Vthevipendeency of the suit before the trial court. _A?"pe11.i_sal of trial court records, namely the ord'e_rfsheet,;_':yo*o1l'dT1~'eilect. that at no point of time, appellantsvfdefendants) i'£dein;e"oioi'i£ied before the trial cotirt"reportinggjdeath=._oftHanufnaiah. In fact, on the interlocutoiyl ordefr's:'*p_assed by the trial court, both the parties ha\ffe«--_linocked'eytheiifdoors of this Court on several , occastonst,' in following matters:--

1. in V(i).. ciai? __No.1612/1998 disposed of on 06.10.1998 e. i""'c'iiwPi;N'o.25153/2005 disposed or on 23.12.2005

(iii): ' 'cap No.491/2007 disposed or on 29.11.2007 it " '=-.32.". In cap 1612/1998 late Hanttnzaiah had been party and the fact. about late lilantnnailah having .e2'tpi1'ed has not been notified or brought to the notice of the Court and proceedings have been. Continued. Even otherwise, when additional written statement._'M(as»d'~.Ii1ed before the trial Court on 13.11.2007 and W}"].f*.:v_:'1'.1.1'tii:t§»:~\..ﬂfj2§;iI.télTv came to be remanded by this Court on therethisu not even a whisper about the expired. It is no doubt true that presei1if&ppe_t11 has been presented on note been made in the cause title about At. this juncture, it would the judgment of Honbie "o~f----~:;Sardar Amaijit Singh Kazra vs? in (2003) 3 sec 272 Wher:Ve't1iid'ef.:.:2;t held to the following effeetzth" u "

"LaV1_p_s, of procedure are meant to effectively, assist' and aid the object V' 1 vv:of.Vdoiit_a='substantial and real justice and not tioijoreelose even an adjudication on merits of ..ﬁS'§L19VStCtTltiCtl rights of citizen under personal Vjﬁroperty and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of 126 justice or sanctify miscarriage of justice. careful reading of the provisions contair1ed_:inyl~.._ Order 22 CPC as well as the sub_se'qite~n_t it arnendments thereto would lend support to the view that they---ivere dlivis*edV:to.TiV ensure their continuat'ion7:and_'tculmination an eﬂecttve adjudica»tio._n andanot to retctrd, further progress of proceedings 'ligand thereby not--suit the others.:'siﬂrfttt_arly as long as their independent rights to property or anyrctatrn and not lost to one or the other V The provisions ,tco-nt'ai'n.ed --Order 22 "are"not' to be construed principle but must ever be viewed as Vﬁexisblegrtool of convenience in the ._adrni4nistra.tion°.ofjustice. The jact that the ,{{hat;a 'said to be joint is of no relevance. each one of them had their own pi ii'tdepe'nderit, distinct and separate shares in the property as found separately indicated in jarnabandi it self of the shares of each of it them distinctly. We are also of the view that it the High Court should have, on the very perception it had on the question of constitute a sound. reasonable or just and proper exercise of its powers. Even y' it has be viewed that they had a common i:1te'res*t;V':'-him. then the interests of justice would reqiiire' the? remaining other appellants being at'loweld;v.to"

pursue the appeals for the».:'be:r~iefit 'of; 'l others, who are not before the" Court also and l' b not stultyy the proceediizgs. as a--- .whole 5».

not suit the othersgas iveilf. :'-- it And in conc1.usi0r1. have held at paragraph 34 to tlji followi§1g.»~effe.ct:b§_"' we discussion, we Wdtcli f h 1} ' the plaintiffs or L appellants or petitioners are H» '"*w____found to have distinct, separate and independent rights of their own and for purpose of convenience or otherwise, joined together in a single litigation to vindicate their rights. the decree passed by the court thereon is to be viewed in substance as the {3} combination of several decrees in favour of one or the other and not as inseverable decree. The' ifsarnex would be t'h-.e"'positio_4n in _the_ case I of dejenda'nts1'_" or respo'riden't's_3 . having» ' similar - _ rights = 'v'co,tciest'irig the claiIri;~:..V:.against' : . . . . . .-

. o . . . --

{4) 'I'he»ques:iion.:as"to"-_whether" in a given the fact as to it A judgrnent/ decree ¢;;.s¢ decree_4'isAjo'in"i'and inseverable _f"orj.oint severable or separable has ~ . 'bf. tolﬂhe 'decided;*jor the purposes of "dismissal of the entire appeal being properly and duly " .fcon7su'iuted or rendered incompetent for being"'jurt'her proceeded with, requires to be determined only with reference to whether the passed in the proceedings vis--a--vis the remaining parties would suffer the vice of contradictory or inconsistent decrees. For that reason. a decree can be said a _jo'i;n;'t' « and .;.v % 130 to be contradictory or inconsistent with another decree only when the two decrees are incapable of ei1'[orce~rn'erit:._Vv or would be mutually and that the enforcement Qfyone "

negate or render"*irnpos,sibie__ the enforcement of the it

83. The Horfble Supre11ie"V--Couri in him the case of BHUREY KHAN.Vv/s..t-'YAsEi§m.:HAN' '(deai:l] BY LR'S AND OTHERS reported 'is: '19.9E'+.s tsoiibié sec 331 has held that the appeaitdocs datiglhter and the Widow are not broitghf3tp"ij._y1reCorg1,2._ Agilpdragraph 4, it has been held to the f0I__loi>irilil1Ig -

';'i have learned counsel for the

-- --. After"-thehlorder dismissing the appeal for».non--pro*secution for non--prosecution was by this Court the parties were to the position as it stood earlier, that the substitution application filed a the appellant for bringing on record the legal representatives to whom the notices were issued stood dismissed. But that could not furnish valid ground for abating the appeal as the six sons of Yaseen were already on record. The estate of they deceased was thus sujficientlg represenlted:;--.g:'l'~. if the appellant would not have l"

application to bring on record the"

and the widow of the X, would not have abated unlderl'O_rder Rule of the Code of Civil Court in Mahabir The position, in ouAI:._.'opin'ion:,:,u)ouldanot be worse where an applica'tiortl.,tuas C bringing on rec0«r*d 'o.the§r represevntlatlives but that thellllother reasons.

VV.es-tate lofweie deceased was :R,_Arepresei1.ted could not have been

84. In in question, the relief that has been for possession of 'B' schedule property from the the instant suit, after remand by this Court as~«._mo,difEed' by the Hon'b1e Apex Court, the 2"" appellant i.e., i2?" defendant. has tendered evidence before the trial court l=.yland'l has contended that; he and his brother were in gloccupation of the suit property and a contention has been raised in the written staternent as well as in the evidence that there was no trespass into 'B' Schedule propertyrby all the defendants including late Hanurnaiah. When' are examined with reference to the mat_cri,al"»eVid'encc on record, it would emerge that t{:)l_:AlpS1j.;1§r_pp(0I'l1le' wrongdoers would not be all defencerfor actieir oth.er wrongdoers. If the beenlpl'brou:g§ht:"alleging trespass against sorne*~..of all those persons against whorn are not made parties, then cotrld dismissed on the simple who were also either in po:ssessiorn_..V03.'l:'l,$,ﬁ1.hjvlplplaintihtiélsVpossession, had not been irnpleaded; squarely applicable to the facts of the case "in_las~n1uc'h appellants are not: contending that pdVe'cea3sed"l*1anumaiah was in possession or continued to be "in pcs"se_ss.io::t and his possession for 'B' schedule property is detrolvedlitrpon other legal heirs. When their being no such p1ea;'.cont.ention of the learned counsel for the appellants suit/appeal gets abated on account of legal 5rcpresentat;ives of deceased Hanumaiah having not been made parties, requires to be examined with clrcurrispection. Thus, in a suit for possession and injunctions trespassers, the mere fact that assL1n1ing_;r"o11e": ltheé trespassers has expired arid his heirs have '41'/()1tgi»1I_"

on record, does not make it imptossiloalée favour of the plaintiff against the tr«es.;:5'assersV..'~9who i the Court. The HoI1'b]e SuprerneV'tC0urtVin, case has 133 held as under:

1] _,irtseptmf_1bie decree", the (2003) 3 sec 2?7'2."% t M _ Sardar Ajwzqg:z;:'siﬁgij; mieitvs. Prtctrrtod Gupta _ .riecessdry to consider iﬂdtL?Vidi,i(V,ﬂ,iy "::'ti«l. "decisions rendered by three learned Judges, roitght" wherein unyormly this com _haS,'~ heidja) In case of "joint and Eindi_visibie~d.eeree", 'joint and inserverable or abatement of A "proceedings in relation to one or more of the _r,ippieliAdnt{s} or respondent{s) on account of " omission or lapse and failure to bring on record his or their legal representatives in time would prove fatal to the entire appeal and require to be dismissed in toto, as otherwise inconsistent or contradictory decrees would result and proper reliefs could not be granted, cory'lz3ctrfng'»_l'-..vv with the one which had already beconfiejlinal:

with respect to the same subject~matite-re: vis the others; {b} the questionas fto the court can deal with fin fappeal. 'after abates against one orvthe other 'ucaQul¢.iv"d.eperid_V'§ upon the facts of each and no exhaulstive statement or analysis oouid_:'be""rnadel about all such ctrcurristanclesll or would not be possible v'to~v.pjroceed_ the appeal, despite parttallg,"'l.?C'}---eacistence of a joint from tenanog~in--

thecriterion but the joint charcicterbj':'the dehors the relationship of titel and the frame of the Aappeallf will~take- colour from the nature of the challenged; {d} where the dispute ,be.t_u;een°'two groups of parties centred around orflwas based on grounds common i"~«4..relattng7' to the respective groups litigating as distinct groups or bodieswthe issue involved for Vlconsideration in such class of cases would be one and indivisible; and (e) when the issues involved in more than one appeal dealt with as 135 a group or batch of appeals, are common and identical in all such cases, abatement of oriefslorg the other of the connected appeals death of one or more of the parties and A ~ to bring on record the legalreprese'n~tdttves of it the deceased parties, waouldlgfre'sgu'lt:_' abatement of all appeals.

34. In the light of the a.bove d.isc.Liss.io'n, {1} Whether ,the VA or"'--a_ppe§llants or petitioners.' are gfotinda :*to have distinct.

Separate AaVndV.ind_ep»endertti_'rights of their own 'for; convenience or together in a single their rights, the decree court thereon is to be viewed " _ iri..Vs'iib'stari_c'e the combination of several ~ Vciecr'VeeAs'*._ irrjavour of one or the other parties arid-.,not as a joint and inseverable decree. same would be the position in the case of . V vlﬁiefendants or respondents having similar rights contesting the claims against them. Whether different and distinct claims of more than one are sought to be vindicated in one single proceedings, as the one now before us, under the Land Acquisition Act or in similar {3} nature of proceedings and/ or claims in assertion of individual rights of partielsitare clubbed, consolidated and together by the courts concernedjiandlt judgment or decree,..,.has been-:'__'pasV.sVed, '--if should be treated a-interestcornbination:

several decrees in jaoour' of or agairist oneiora more of the pcjrtieis and. not and inseparable decrees .v - _ l " -» ., _ The mere. :fact * claims or rights asserted or. V:souglht:,_to"xbel tiindicated by more ;th'a:ngj1'one'=__are --s3irnila'r--:.or.identical in nature or more than one of such ._l"'clai'r1s7iai1ts"'of a'-.part'icular nature, by itself si.i[]'icient in law to treat them 4' joint' so as to render the judgment xdecreel": passed thereon a joint and inse'u--------rable one.

The question as to whether in a given case decree is joint and inseverabte or joint and seoerable or separable has to be decided, for the purposes of abatement' or dismissal of the entire appeal as not being properly and duly Constitut'ed or rendered incornpetentfor beingfurther proceeded with, . I. requires to be determined only with reference to the fact as to whether the judgment/ decree passed in the proceedhggs vis--a--vis the remaining parties the vice of contradictory or llihcojrisisteirat V' decrees. For that reason,' a-14 decree' can], be said to be contradictory 1'_ar'~ 'inc0nsfsteht"i"u,}iih:

another decree»bn_ly uiheh ihe."'tu;0,._Vdec§rees_°. are incapable of iggould be mutually. ~sf3U-:dest1*ltictibe._A and" that the enforcemehltll cg" cen.el::wdLild.V:lnegate or render irr1p_c3ssible"tFie the other. E35f"In int;-t'a..n(..c'ase, legalllheirs of late Hanumaiah namely"._a}j;ael'lant{§"'..c1l'cand..:l2.__lb.eing already on record and defendinglllthelr. .]clmtApQsssle'ss1on and also by not taking any «_ def_e'f';ce_that late"Hanun1aiah was in joint possession of the ' stii't..schVedu'lelprQperty at any point of time, the contention of the"'learne'dgccaansel for the appellants cannot be accepted and it ldeselrves to be rejected. In View of the same. the ljxudgrllelnts relied upon by the learned counsel for the . "'/g,_13ll1jella.nts, are held to be net appiicable to the facts of the cave case. Accordingly Point No.4 is answered against the appellants and in favour of the respondents.

86. Point No.5: The contention of them that he has been in possession and suit schedule property and schedule property when the force and when the the plaintiff against lasfagiainst this claim the contentionllofl plaintiff was never in property more suit i.e., 29elwl993 and wouldlllsubrnifltliat:.l'::'%§§A'Jlper Ex.D.7 Plaint in o.s.

36452/1.992 the writ petition W.P.24629/1993 go to show that plaintiff was never in schedule property and if he were to be in .u"pos'ses'sion he would have said so in both these pleadings and as such defendant would contend that plaintiff was not in possession. He would also contend Wl?3x.P.2 lease-curriwWill dated 1.10.1976 produced by the I39 plaintiff to show he was in possession of property beyond 'C' schedule cannot be accepted since said document is inadmissible and he also prays the Court to compare Ex.P.2 with the description of as described in the piaint O.S.3642/I992..{'EK,VI}ifZ}.._and'i A W.P.24629/1993 {Ex.D.20). At':eusa4j;me:iLres.i it be necessary to note that the triait' CoL:i'rt held EX.i3.2 as inadmissible by ord_Ver-dated 'S4 while it was sought to be vpro"du'é*_ed.j_p' P.W.1 in his evidence. The said- if order_ " unsuccessfully chaiiexigedisilss p1a.i:ntiff"_"'iﬁ'"4W.P.32472/2004 and the Special Leave Petition [Civi}}..828ﬂ6','200.E§ disposed of on 25m4«2oo5 by the S"u.pArenieV""'C«ourt it has been held that the V.d0cur'nentV" be marked for coilaterai purposes. Hence, ,___the.7eontention regarding the admissibility of the J'doc_un1e-nt raised by the learned counsei for the 'ciefeiidant is hereby rejected.

87. The suit schedule property was originally described with only one schedule depi«e't:7n'"g:j:""..as measuring 32' x 30' . Subsequently carried out and schedule 'A' propertjf 9 as a composite property meas'L:.ringA' 7.8', which it was contended t1i3;t.,:s'ehedi1l~§ rﬁf was measuring 35' x 40';-and propeI't3} 35' X 38' and descriptions have .b'een thereunder. The plaint schedule deiserjbeid in_"'th*ee reads as under:

""" H _ No.B-91, situated at Appttrao ' Road, 6"! Main, vS_arr1eéi'apuranL"'- éfneasurtng 35'x78', and ._ }9bC}ttTLd_€d 'ﬁt-£35' V __ East by : Road.

Wests by : Road, North by : Private Property No.21 1, & South by : Private property.

18' SCHEDULE Portion of the premises bearing No.5'-91, situated at Appurao Cross Road. 65" Main, Sameerapuram, nleasuring 35'x40', and bounded on the:

East by : Appurao Road, West by : Schedule Property5,~~---- . , "

North by : Property No.21 A South by : Premises No._9..----. , __ *c* scHtv_:_z3_vLE"

Portion of the premises» bearthg , situated at Appdrao Ciro$:3"' 61:. 'Main, Sameerapuram. and boundedtoddthe: it h V 2 K it ' ' _ 'Northby.__; " __Property No.21], & 'VSouth'_ bgiif' V' Premises No.9. ';88....A1oVng..j3rit'h thewplaint a sketch which came to marked as EX.P.1. The defendants 'h?1\}'ie__«iAaIs:o_'v_..n.ptoduced a sketch which is marked as V . the contention of the defendants that it were in possession of the property described

-- '»E§§.D.9[b] and piaintiff were never in possession of 142 EX.D.9[a}., It would emerge from the records that as on l««3~1992 the alleged adopted son of Smt.Venl§a1nma was not residing in any portion of 8 schedule .lpV:.'o_pler_ty. and this fact is also evidenced from .. written by Sri.Vittal Rao hirnsealf, was at Raichur. It would also necessary '~;:o"no.tVe at this-_'l"e. stage that defendants Written Statement about llin'vv:lA'A:lpossession of 'B' schedule property. As the defendants could not of 'B' schedule property"lan:.d'.v'if nothing prevented the defendlantslto fact. when they ﬁled the Written Stlaternerit 511 29-7- 1994. The alleged Will dated it l-.984 ..['Ex.[l)l.V§4})lllpropounded by the Sangha is also doubt inasmuch as just prior to the death .Srnt.Venkamma i.e., about one month since she has written a letter on 27-5~1984 as per EX.P.33 l'wl:ic:h reveals that she was not keeping good health "and she expired on 306-1984 and as such whether she could have executed a Will on 13-6-1984 would be a moot question. It would also be necessary to that admittedly adopted son did not Bangalore on death on Srnt.Venlgan1n1a"an.d'_»lfre=:did not". perform her Obsequies ceren1on_ies;f eHenc_c."~in1nie"diately on her death plaintiff canh_e«--..3.aid to loein' of L' »}3' schedule property and hie that he was in occupation the same since plaintiff was4_::al._reac:ly9 lfof schedule 'C' property that defendants Wereinot in satrﬂflllel if lea; A 1985 had been filed by the plaintiff _a'gai'nst':Madhwa Sangha and Sri.Vittala and in thefsllald suit Madhwa Sangha had filed an :a.p_pli:::at1on appointment of receiver which came to as Ex.P.52. In the said application it has xbpeen. rrgfentioned by the President of the Sangha to the A ';fol1--ofuzing effect: alt"

"Para 4. That the plaintiff had illegally let outfour portions of the schedule propertg,-'.<4_l't~.s_ to various persons and has collected:.~«~hage__i' amounts as advance and has been collecting)" if rent and appropriating l'h€}'I"l"i'9. detrttrient A of the defendant who are'-the'"oi.imers'-of property. This has resulted a greatV'f'l'os::s_VVto the first defendant Saiigitaa as"the'=p-roperty was bequeatheaﬂby late=;Srnt;'V.enkarrimi'i;V for charitable purposes-. V' f This clearly golejsf-"to on 2240-1987 defendant;-:_VV.wﬁeﬁe. poslsefssion as also Madhwa Sanglr,-la claim possession. T he defendant 'No. l 'hasA'not«--._e"r1tered the witness box and his eviderice wou'lv:1VVhaveV'been of relevance and Importance. atZAII1'V:l11.BE:f&§i'lii€_nC€ 2nd defendant [D.W.1} namely crossw Xir§xa;;nlinait.:§_nignited 3-1o-2009 it is admitted by defendantthat one Mogambo urf Nagaraja Shetty was s opposite to his house. The said Nagaraja Shetty has beenx examined on behalf of the plaintiff as We P.W.5 the said witness has stated in the cross examination to the following effect:

'The defendants have thrown materials of the plaintiff and materials in the suit schedule property. _ also helped the dejendan--ts" for A materials of the plaintyj'IVI«Au;iter:'472'o'=.'§' later, the plaintﬂ ca.tne.__ to rrm_land lhdll there is no Court youll' urlheeessarily thrown the articles ,;fron%._jj' suttllschedule property. ,1 .

"At that tirne' were there. Sri,_.S'h'an~%tar, Narayana IO suppliers present.

I do rViot..l;'l£:tio~zd5'their names. On that day, _ Veda<1}yasac_har»l his family members were not presentf ____ (Emphasis supplied by me) this witness cannot be brushed aside. This "Witness is neither related or a close associate of plaintiff. He is a resident of the area. particularly residing opposite to defendants house. Which means he is known to both the parties and the said evidence cannot be brushed aside. He is also one of the person who assisted the defendants in illegally the plaintiff from 'B' schedule property.

90. At this juncture it would be n.ecessary lto.l_:not<.e 00 that on account of the alleged plaintiff from schedule police complaint andrtphereewereicertainlproceedings in this regard and the 00 had been examined as, relied upon by plaintiff examined at all on account of "h_i'm'self for cross examination.

of the defendant that defzﬁndaiits aretvi_n__pp.possession of the suit schedule ' October 1993. It is stated in the evidence that Madhwa Sangha and the adopted son of lV:ittal Rao were in possession. In fact D.W.l in A hvils""~_.cross--examination dated 3-10-2009 states the portion identified as Ex.D.9[a] was in occupation of &/r 147 Ramachandra Rao and he delivered possession in favour of Madhwa Sangha on 6-10-1993 which portion came to be marked as Ex.D.9(a] and states'...th.at~.e'the portion marked as D9(a] and the front portion' came to defendants p0Ssession__or1__ 6--'land..Vais_o"» contends that there are docunientsto were to be so, in E3X.D.1"n_:eVinji'ely" to sellttt dated 1~3wl993 executed l;)§,I.ﬂS'i:'i.\;'-ietitalh'Rao.,oin»l§favou1' of the first defendant,' been a mention about possession of _hav:£ng been delivered. In fafjtl it has been mentioned that there is~eiiepute~..:jii«.o.s. No.10868/1989 between Sriﬂedavjfasachar Madhwa Sangha and Sri.Vittal eéﬁed they filed an eviction petition in HRC the same is pending. In fact D.W.1 plaintiff had entered possession of suit schedule 'A' property [which also includes 'B! schedule) .in"his examinationdnwchief itself. which reads as under:

ﬁ/ 148 "Para 8. When the matter stood thus taking advantage of the situation that the main house was kept under lock and key as no one was residing there in A building the plaintiff had broke open, lock from the backside. ,_illegally~'.fVwith'_is * ulterior motive by co1i14mi:ttirzgi'ee.tresptu§S.__ and had let out a;s_mall'~tportiorv-Altos':one'; 3 Sri. B. Ramachandra:"Rao .o'n._V_a« rent of Rs.4OQ/- by;l-misreprfesentinguhim that he is the'--.owner?V:.pqf""t--he':g.gid house, keepingthe it is.

Ultimciteig,»p1'Srirnan ZVIadhva°'sangha and Sri. tovvlcriow the said fact of :':illegalVVtres:p_Va':s'also the fact of letting out of the_ portionA'oj°ihe' premises and action was V. takein' _:Vag.a'ins't i"l§oth No. of Corrections:

;IsdJ_fl':ti:1,fiateAlij,"vt*---.'*1c~*'said Sri. B. Ramchandra Rao r:_am'e._'to knoiv the illegal act of the dejendant the said Sri. B.Ramaohandra Rao vacated and delivered vacant possession of " said portion of the premises to Sriman A Madhva sangha on 6.10.1993. There after A Sriman Madhva sangha and Sri. N.R. Vittala Rao have delivered vacant possession of the 149 entire main house to the Sri. H. Shivashankar, my younger brother in whose favour the agreement to sell was executed. earlier and myself and my family including Sri. J. Hanumaiah and were started to reside in thernain ' (Emphasis sup},pIiedsbly"ine)..' 4' ' In fact the witness in shdatedd 3.10.2009 admits th"'at as 00141' the of' i1«:x;to.1 he did not take possession since Madhwa Sangha assfa1'ed_' to secure posse'ss_ioj'i and hand it over to the Hfirstet as under:

eta smart seesaw auég):/?§._'."CQC)::2)' am? maaaemaos oooa; is -vﬁeﬁagsooajg' }4".::~;}éjZ3r°(0§5 sr<:c:0a;aoacseveg,,"

is not aware as to Madhwa Sangha and in possession of the suit schedule pidioper-t3}." the cross-examination dated 5--10#2009 he '*ad.tﬂnits" that. he has stated about possession in para 7 of hihishiihaffidavit only on the basis of information given by it Madhwa Sangha. In the same cr0ss--exam_inati0n he also 150 admits about the contents of para 8 of his affidavit whereunder he admits that plaintiff has let a portion of '13' schedule property to one The contention of the defendant is schedule property Smt.Venkamnia it along with Sri.Vittal Rap an'd_l'by loft: comprornise petition entered bVetWeenl:Sri.\:fVittal Rao and Srnt.Venkamrna shairelll entire property i.e., schedule property'. the share of Sri.Vitta1 Srnt.Venkamma on kept under lock and key Madhwa Sangha and Vittal Rao_joint1yu"enteredinto agreement of sale dated 1w3w . it {F;2:.D..y1) Withmllshivashankar younger brother of Ai'--seeoriddjdefeyndfant and possession was delivered on 6-A"All"o establish this fact the defendant has neitherv-'lexarnirred the representative of Madhwawa Slaiiglha or said Sri.Shi\/ashankar who is the first "defendant herein.

151 91.1 This Court by order dated 9.3.2010 had kept open the marking of letter dated 6.1.1995 produc,e'd_by defendants to be Considered alongwith Hencg same is considered at this juncture}-.ﬁI'hev.letter,1 1' dated 6.1.1995 is said to have b=veer1l"issu«ed-: Sangha addressed to, _ 181- Sri.ShiVashankar. In the staternenefiled by W defendant he has not :iitter«_§d 1&1v"»i{QI¥§l"aboutllthis letter and so also other deferidaiitsi when 21"

defendant 'I9§'V"v"-;":1 in lieu of his eXamiziation-i.n?Veif1-ief after remand he Came--up Wi.th a demise of Smt. Venkarnrna , '_ Mai_i1-;.biiild.ing l\l?\'fE2L'S_1_,_1_fl9Z"i€I' lock and key was with Madhva Safi'ghav._v'andVl"*Sri. Vittala Rao after possession Was handed the tenant Sri.B. Ramachandra Rao ",.[VVh0'. ishsaid to have been inducted by plaintiff] on A and thereafter Madhwa Sangha and Sri. Vifital Rao delivered possession to 13' defendant. and accordingly it was contended that they started residing in the main house. In order to appreciate contention it would be necessary to see such plea had been raised by them, since no"«arnvo'u.n'tloif evidence tendered without theirClbelirig¢_ plea consequence. It wouid be jonecessari to the V judgement of Hon'ble SuprelnieV.."lCourt" of Duggi Veera Venkata Gopqla_«Sdtytd1:_ldraeyar1aVVs: Salcala Veera Raghavaiah and ivli-~98?) 1 SCC 254 wherein held: as """ "l"i'i* that any amount oflproof :LuitFiQllf;. appropriate pleading is geiie_rallyl'ofli?o" relevance. We respectfully ugrree with..__the above statement of law and A "'reitei'at'e_fhe same."

i being no such pleading in the instant case effort of defendants to prove the sarne of no 'consequence and is liable to be rejected. 91.2. Yet another factor which requires to be noticed for not admitting the letter dated 6. i.19j95"fto"--he produced and marked in this appeal are as 'V'

(a) In the written statement b.oth».defe'riddaiits'4 "'2 have not stated a word-._ about 'r':;h1s1i"1et:fe:'or regarding handing oVe1'.possessi'o11.

(b) Author a11d reeipie11tg_____o:f~letter .d'at.ed 93.1.1995 namely Presideiitfor 'Aau§h.oi'i.sed'~representative of Madhwa Sa11gh'a.__ defendant Sri.Shivashat1kar respeetivejly not examined. ((3) his:9e>rarn.i11ation'§in--chief at paragraph 8 of' af:fida.:\/Vite 9' _lieu of eXarnination--in~chief coritends was delivered on 6.10.1993 _.;'and at 10 he says defendants are i11 {possessiondvofwentire main house from October again in paragraph 11 he says he and members occupied the main house on Thus, there are glaring discrepancies i:n~eXarninatio11--i11-chief of D.W.i itself. (ti) Clause 11 of agreement dated 1.3.1992 states that possession of property is with tenants and "154 purchaser would be at liberty to negotiate with tenants to secure vacant possession and thiisgoes to show that neither Madhwa Sangfl;:;i"p:'«Vp:i'ior Sri.Vittal Rao were in possession of split property as on date of Agreement to ll [e] Even otherwise letter depict possession is dveliveredto 2""

[f] In crossmexamination D.W.1 states that doeiirnentlntlolwleyidyenoe possession was delivered to hini and Sri. Vittal records and he also states xxrfaslgiven l6l"llt).1993 itself. Both :_:tl1e_se1"state_rnents'yszoiild exhibit falsity sinee letter dated «and it could not have come into'*eXisten_.ce~,_on:76.10.1993 and if there is any other docninerit (which according to D.W.1 is has not seen light of the day.

They. a'oov,e do not inspire any semblance of colri'fideVnc'e"in Court to permit the defendants to tender 3 letter dated 6.1.1995 as additional evidence in this and accordingly said prayer is rejected by (S/.

holding that same cannot be permitted to be tendered in evidence and / or marked.

91.3 When defendants contend that . entered into possession of sclaednlelh""'A'fjv.p'ropertyll"

surreptitiously and had let out lffsarnle:

Sri.B.Ramachandra Rao folr'-_a"~:nonth1y reVn'fi:o'f.;Rs~;~A+'OO/ who in turn claimsto haveﬂelinreredlllpvossession to Madhwa Sangha on :Was.:Lii1cumbent upon the defendants to e§<*ainine":" either said Sri.B.RaIniach_and'ra__ Rae'---.o'I* office bearer of Madhwa Sangha whnof have taken possession to establish"-thiisvvfactflll = _. if if _.9l.4.' Atrthisfjuncture it would be necessary to zgto namely the eviction petition filed by the said Madhwa Sangha and Sri*;«.Vitt_a} against the plaintiff herein contending that respondent therein i.e., palintiff herein had let ll'"~oi1--t--etwo portions of the suit schedule property to third %/.

"I56 parties and they were paying" rents to the plaintiff herein. If Madhwa Sangha and Vittal Raoj possession of any portion of the suit as contended by defendants there'--was no necessity to file an eviction petition againstfth-e_ Afplaiiritifi' well as the alleged sub--te1a.an.ts. crossmff examination, it is adrnittedteibyijfjgéwis-1'thatﬁnder EX.D.1 possession is not given to a§dtn_issio11 reads as under: 9 V 9 9 V g a1.'é.i{a'9;§ao:3_a seesaw agéifi 1' aiaei, . WC-:i:ja(§%r?J8j?.19C§.Ja'§:§o5j) (Q0553 ;ﬁc=e9c:§;:3'o:J_.i _§:iaj)§_oo@o@e_;5"

9 1 u1'therA'o_n"~~I»3-- 12- 1993 a mahazar came to =".__be by the'j'ui'isdicti0nal police on the cornpiaint _bj,r:th'e..:pi:aintiff for forcible dispossession against defendai1ts9-and the said mahazar has been marked as 9'V..,EX.P.5~f£V__Awherein it is stated the room on the left hand the room in occupation of plaintiff. There is no dispute that this room referred to in E3X.P.5-4.» is situate (W, in '8 schedule. The witness D.W.l in his cross examination dated 5--i()~2009 has admitted--"'----_ his signature on Ex.P.54. D.W.i claims that the suit schedule property under under clause 3 of the said sale-pdeed' itis frn-en'tion'ed__a::3 under:

"The vendors having th"us'l1'eeeived. sale consideration Rsv;i5';0t§',jQVCl'0./3 only' due to them under this'deedsf':putﬁ:tlhC.:purchaser in vacant po.svsessi'0n»--::'of property mentio_neQi~'here'in iblelovv iwhielrconsists of an iioiofedjhouse measuring 4 ' Tl'1iuS4'Q1ear1v show that D.W.i admits .thatlau"'ur1de.r'* possession of the suit vllpie-perty was not delivered in 1993 ﬂ:S'~Co.ntvetnded, but it can only be under sale 'Av~l5¥i0--2O00 possession of the suit s__pe-heVd--ule property was delivered. In fact the "evidei1ce tendered by P.W.2, P.W.3 and P.W. 5 it supports the claim of the plaintiff. "

92. It is to be noticed that Madhwa Sangha claims to have entered into possession of schedule under Ex.D.4 namely Will dated 13.6. Smt.Ver1kaInrna in favour of Madhwa Will itself is suspicious and can'not'.A_lbe accepted face value for the following Vreaisons:

[a] The rneas:,iremer.1t' =s.hovvr_1. in "me EX.D.4 schedule is H' diifferenliiV«i~fro11i_ A. the V measurement shown in

(b) The A is 7«:;e: a duly proved since ____ H ot"ﬁc:ials__of are not examined, 1 r1oLt"'«.'_e_>;an1ined, witnesses are not :1; is hit by 68 of the 'Ev.1dleI1c<:'_ Ail.' « namely the certificate of letter of V"»~.._'adniiriistration issued by the Administrator sri.Doraira3'u1u Naidu also cannot be accepted since he was the advocate of :MadhWa Sangha as seen from the eviction petition EX.P.5O. In fact D.W.1 in his evidence namely crosswexamination dated 5-

{ﬁr 159 10-2009 also admits that Sri.Darairajulyu Naidyu was the advocate of l\/Eadhwa Sangha.

93. 2"" defendant claims possession throughlfittal Rao and Madhwa Sangha since they _ agreement to sell in favour of thefirst *'E'linus"

the best witness to say about (i€li'J€E}f' ofposselssionexivof the suit schedule property 'w.ou1d'v.haxre first} defendant, Sri.ShiVashankar___tXfla,o none than 2"' defendant's younger""--brothe1f§--.' ..the_ other witness being President' or «bearer of Madhwa Sangha. 1.. ».the'' proceedings before the Subdizzisiorialvllv 1- in t MAGCR 1 1 8/ 1993-94, the first and s_eCond._defe11.dant herein had been arrayed as and V tl1ey_....lv1aVing appeared before the said ' aijthority filed the statement of objections the copy of to be marked as EX.P.67 Whereunder it is contended by them as follows:

"These respondents are in possession and were in possession and continued to be in possession of the property in pursuance of W I61 ordered by this Court in C.R.P. on 16«10--1998 and it is thereafterwards the wall bifurcating B 82. C schedule property had been put up. As such it has to that plaintiff was in possession and enjoy;'r1:en.t.v:Vo'f" V' suit schedule property.

95. Before concluding to A' entitled to judgement and decree» trial 'V Court it would be necessavryl e§{t.1jaCt'lt1*1"e "following judgement of the matter of Rameshwar an::1.tVVV1Others§ and another in (1 976),; scoldisaill' of our processual " ;j_']'l;tStlC€.V our jurisprudence to mould, or lregiiiate reliefs in the light of C : developments having a material it"*lanadegiviiltable import', occurring during the vevndelncy of the litigation so that the Court .. may not stultrfy itself by granting what has Ebecome meaningless or does not, by a myopic view, miss decisive alterations in 'fact- situations or legal positions and drive parties 162 to fresh litigation whereas relief can be given right here. The broad principle. so stated,_...__ strikes a chord ofsympathy in a Court Qfgood; conscience. But a seeming virtue may prove 5 ;_ treacherous vice unless judicial perspibacity;~ H' founded on well~groundedgrules,. stud.ies"'tl:g plan of the statute, its subsequent changes':_ "and 1'-the piossivbleg damage to the social:pgroggrarnmewii of the measure if later~.__ events allowécp £0 unsettle speedg' it of a restructuring_ of is the soul of;-.the:En'i'u;hole processual equ*ity_h'jeari7i§:_; be'*-_':perrnittedv to sabotage a eher.ishedVx':rej'orn'i,.:"nor "l individual hardship thivart. socwiialjusltioe; wider perspective _ -explains._thVeFrulings cited on both sides and law ofsuljsequent events on pending " '~ ao_tion«s.°'v _ i 8 In P. Venkateswarlu Vs. Motor & Gerteiral Traders this Court dealt with the adjectival activism relating to postinstitution circumstances. Two propositions were laid down. Firstly, it was held that [SCC p.772. para 4] 'it is basic to our processual jurisprudence that the right to relief must bejudged to as on the date a suitor institutes proceeding. ' This is an emphatic statement»-that'--'_4t:hei loft} a party is determined exist on the date action lisg Granting the presence such he is entitled i1iS="" Later developments V his right because, explan.ed ; 'the court found to be' he sued he woufdb go'tC:': The Court's prtoc!djaral':':ti;elays *cannot~cieprive him of legal just-icebsvor.'frightsvcrystallised in the initial cause of action. position ﬁnds support in _ Bhajaii Stabte of Punjab.

.,p_Para'V"9~"'The impact of subsequent hlapp'e.n'ings may now be spelt out. First, its the right' of action, second, on the A of the relief and third, on its impotence iocreate or destroy substantive rights. Where A Vh"~«_it'he nature of the relief, as originally sought, it has become obsolete or unserviceable or a newform of relief will be more efficacious on gr, I64 account of developments subsequent to the suit or even during the appellate stage, it is but fair that the relief is moulded, var'iedvVorT'»l. reshaped in the light of updated Patterson illustrates this position.--:T'Itv-_iLsr-in important that the party claiming or change of relief must have s'a;i:ei it from which either first*--or=-- the l remedy may ﬂow. Subasequent S course of the case gAconstitu,t.'ii...1e of substantive rights'cerifotceable that very litigation gexceptA...z'n._a {later spelt o'ui}':tibut equitable _iui''is-dictiori 31:, to . : rrr.oulq- , ..,re'liefs. Conversely, "whcaretriglits"have'already vested in a party, they lcannot" be'«--.._riullij"ied or negated by . .subsequentv" events save where there is a change 'the-«'law and it is made applicable Lachmeshwar Prasad Shukul Vs}"_*v_v..Ke;shwar Lal Chaudhuri falls in this Courts of justice may, when the " compelling equities of a case oblige them, shape relie_/'s_cannot deny rights_to make them justly relevant in the updated circums tahces. Where the relief is 166 stated in Ranyt Lal Vs. State of Punjab is sound:

'Courts do very often take notice of that happen subsequent to the filing of--u'suit:s: ti"

and at times even those that..,th_ai)e '- during the appellate stage pleadings to be amended j"af".includ.i;ng " a prayer for relief on the'ba'sis of suchye_:ver.its"' but this is ordinarily done--tovavoiti muitipyltcilty of proceedings torV:"when{_y'tVhe'--.'y'original relief claimed has, by_...r:ea'so.ny in the circun1st_an'ces, b:e,com-cl and not when' ""wo.uld be wholly propos,ed. lamendment ( see $"t:ewar it l N Metropolitan Tramways Company) suit by him would be . so by.v'*limita"tion. ' ».i_may'"as--------«well add that while taking cautious judicial cognisance of 'post-natal' l"l.----.geVi)eVnt:s,'~l:ei3en for the limited and exceptional purposes explained earlier, no court will "countenance a party altering, by his own V manipulation, a change in situation and plead A for reliefon the altered basis."

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