Karnataka High Court
Narayana Bhat vs Narasimha Sastry on 6 November, 1987
Equivalent citations: ILR1988KAR549, 1988(1)KARLJ8
JUDGMENT Hiremath, J.
1. The appeal is preferred by the plaintiff in O.S. 319/ 1968 challenging the judgment and decree of the first appellate Court in R.A.No. 124/1975.
2. The original suit was against two defendants for prohibitory as well as mandatory injunction, the plaintiff claiming to be owner of survey Nos. 108/1, 108/2 and 108/5 of Vittal Padnur village. He alleged in the plaint that on 1-11-1968 both the defendants trespassed into his land survey No. 108/5, and demolished the kattabuni shown as 'KKK' in the plaint sketch and cut the three coconut plants which were yielding coconuts and also cut other trees. They also levelled the kattabuni to the ground by spreading mud. Then they made a big channel measuring 3 feet wide 2 feet deep and 50 feet long at the place where kattabuni stood.
3. The defendants denied these allegations and it is unnecessary to traverse into their defence as the appeal could be disposed of on a short point. During the pendency of the suit, the second defendant died and his legal representatives were not brought on record in time and later on application was filed for setting aside the abatement as against the defendant but the trial Court dismissed the application. Thus the suit proceeded only against the first defendant, the plaintiff not challenging this order of dismissal of his application for setting aside the abatement. Ultimately, the trial Court found that because the estate of the 2nd defendant was not represented by bringing his L.Rs on record, the entire suit failed and nevertheless considered the other issues also and dismissed the suit.
4. The first appellate Court did not find any grounds to come to a different conclusion and dismissed the appeal and to say more precisely it concurred with the trial Court that on the death of the 2nd defendant the entire suit abated notwithstanding the presence of the first defendant on record. It is this judgment and decree of the first appellate Court that is now challenged in this appeal.
5. During admission, the following substantial questions of law have been set down :-
"1) Whether the finding of the first appellate Court that the whole suit abates is correct in law?
2) Whether the finding on the second part of point No. 2 raised by the first appellate Court is vitiated by not considering the relevant evidence on record like Commissioner's report and the sketch?"
6. Sri Ganapathy Bhat, referred to the provisions of Order 22 Rule 4 as well as Order 22- Rule 9 C.P.C., and contended that simply because the suit against the second defendant abated it did not follow that the same fate should be fall to the claim against the first defendant as well. He invited my attention to the allegations in the plaint and stated that though there was a claim against both the defendants he could as well press the claim against the first defendant in the absence of the L.Rs of the 2nd defendant. This is a suit only for bare injunction as far as prohibitory relief is concerned and also for mandatory injunction directing both the defendants to do something, namely, to restore the kattabuni as it stood before it was demolished and for damages.
7. The respondent's Counsel has supported the order of the first appellate Court. Even though certain decisions have been referred to by the Courts below, the one rendered in the case of BABU SUKHRAM SINGH v. RAM DULAR & OTHERS, AIR 1973 SC 204 affords sufficient guidance on this point as the facts involved in that case before the Supreme Court were similar to the facts in this case. In the suit before the Supreme Court the plaintiff had asked for a mandatory injunction against the 39 defendants directing them to demolish the construction in dispute on the land mentioned in item (B) of the plaint, within the time prescribed by the Court. He further sought direction from Court against all the defendants to fill up the pits and nalahs on the land mentioned in item (B) of the plaint. In the alternative, he wanted the work in question to be done through the Court Amin at the cost of the defendants. The second prayer made by him was a decree for possession of the disputed lands against all the defendants. The third prayer was for damages. The trial Court had dismissed the suit in its entirety. The first appellate Court partly allowed the appeal and decreed the suit in part. On a further appeal being taken to the High Court, the High Court allowed the appeal of the defendants and dismissed the suit. In the appeal before the Supreme Court during the pendency of the appeal, defendants, 12, 15, 22 and 37 had died. Thier L.Rs were not brought on record within the time prescribed. Thereafter the plaintiff applied to the Court for setting aside abatement and impleading their L.Rs and that application was dismissed.
8. In para-3 of the Report, their Lordships observed that the question is whether the appeal had abated in its entirety or not. They then observed that as seen earlier in the plaint, a joint claim was made against all the defendants. No separate claim was made against any of the defendants. Under these circumstances the appeal had abated as a whole under Order 22 Rule 4 CPC and accordingly, it was dismissed.
9. The facts in the instant case are similar to the facts in the case decided by the Supreme Court as rightly observed by the first appellate Court the two defendants were alleged to be joint trespassers inasmuch as they had jointly invaded this property and had also laid a new channel. The plaintiff wanted by way of mandatory injunction this kattabuni to be reconstructed at their cost and on their failure through the intervention of the Court. Therefore, whether the plaintiff could have filed a separate suit against the first defendant alone is of little consequence inasmuch as in the instant case the action brought by the plaintiff is inseparable as both of them were held jointly liable for the act complained of. In view of this decision, I do not think any further discussion is necessary on this point and the appeal has to fail on this ground only.
10. The Courts below as a measure of abundant caution have given findings on other issues as well as they are obliged to do, so that a remand could be avoided if the appellate Court were to come to a different conclusion on the finding rendered on any of the issues on which alone the suit could be disposed of. Therefore, in the instant case when this Court finds that the suit could not be maintainable against the surviving defendant-1 nothing more need be decided and the findings rendered by the Courts below are set aside on other issues.
11. The appeal however fails because the suit could not survive against defendant-1 alone and accordingly, it is dismissed.