Karnataka High Court
Sri S Prakash vs Shivanandaswamy on 13 January, 2021
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JANUARY, 2021
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
REGULAR SECOND APPEAL NO.1603 OF 2015
Between:
Sri S Prakash
S/o C Siddanaika
Aged 42 years
Agara Village, Yelandur Taluk
Chamarajanagara District-571 441.
Presently residing by the side of
L N Public School
Meenakshinagara
Kamakshipalya
Bengaluru-560 079.
...Appellant
(By Shri K N Nitish, Advocate)
And:
1. Shivanandaswamy
S/o Basavanna Devaru M S (Late)
C/o G S Prasad, LIC Agent
Behind Paanduranga Temple
Basthipura Road
Kollegala
Chamarajanagara District-571 441.
2. Raghunath
Since deceased by his LRs.
a. Shivanandaswamy
S/o Basavanna Devaru M S (Late)
C/o G S Prasad, LIC Agent
Behind Paanduranga Temple
Basthipura Road, Kollegala
Chamarajanagara District-571 440.
2
b. Smt. Shashikala
Major
W/o Shivananda
Basthipura Road, Kollegala
Chamarajanagara District-571 440.
c. Smt. Mythri
W/o Raghunath, Major
d. Kumari Rekha
D/o Raghunath
Aged about 23 years
e. Kumari Renuka
D/o Raghunath
Aged about 21 years
f. Abhi
S/o Raghunath
Aged about 19 years
Respondent No.2 (c ) to (f)
Are R/at No.672
Hundi Street, Hinakal
Mysuru-570 117.
...Respondents
(Notice to Respondents held sufficient
V/o dated 21.03.2018)
This Regular Second Appeal is filed under Section 100 of the
Code of Civil Procedure against the judgment and decree dated
21.08.2013 passed in R.A.No.51 of 2007 on the file of the Senior Civil
Judge and JMFC., Chamarajanagar, dismissing the appeal and
confirming the judgment and decree dated 24.03.2007 passed in
OS.No.116 of 2003 on the file of the Civil Judge (Jr. Dn.) and JMFC.,
Yelandur.
This appeal coming on for admission, this day, the Court
delivered the following:
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JUDGMENT
This appeal is preferred by the plaintiff/appellant against the judgment and decree dated 12.08.2013 passed in RA No.51/2007 by the Senior Civil Judge and C.J.M at Chamarajnagar dismissing the appeal and confirming the judgment and decree dated 24.03.2007 passed in O.S No.116/2003 by the learned Civil Judge (Jr.Dn) and JMFC at Yelandur. Being aggrieved by the judgment and decree passed by the Courts below, plaintiff/ appellant has preferred this second appeal.
2. For the sake of convenience, parties in this appeal are referred to as per their status before the trial Court.
3. It is the case of the plaintiff as averred in the plaint that the land bearing Sy.no.95/2 measuring 19 guntas; Sy.no.96 measuring 1 acre 13 acres, Sy.no.97/2 measuring 25 guntas situated in Agara Village are the ancestral properties of the defendants. It is further averred in the plaint that the father of the plaintiff was in possession and enjoyment of the suit schedule property and after the demise of the father of the plaintiff, plaintiff continued in possession of suit schedule property as a tenant under the defendants. It is further stated that 1st defendant is the father of 2nd defendant and the 2nd defendant had executed an agreement of sale dated 14.08.2003 in 4 favour of the plaintiff herein for total consideration amount of Rs.97,000/- and the 2nd defendant has received Rs.95,000/- as advance with a condition that the balance amount has to be paid within six months from the date of agreement of sale. It is the case of the plaintiff that the plaintiff has been in possession of the suit schedule property, as the 1st defendant is interfering with the peaceful possession of the suit schedule property, the plaintiff has filed O.S No.116/2003 on the file of Civil Judge (Jr.Dvn) and JMFC, Yelandur and sought for relief of permanent injunction.
4. After service of notice, 1st defendant contested the case by filing written statement. It is the case of the 1st defendant that the schedule properties are self acquired property of 1st defendant. It is further stated in the written statement that 2nd defendant i.e. his son had executed relinquishment deed dated 19.06.1999 in favour of the 1st defendant herein (father of 2nd defendant) and therefore, 2nd defendant has no right, title or interest insofar as schedule property is concerned and thereby, agreement of sale dated 14.08.2003 as alleged in the plaint is not binding on the defendant No.1. Therefore, defendant No.1 contended that in view of execution of relinquishment deed, 1st defendant is the sole owner in possession of the property. Therefore, the suit filed by the plaintiff is liable to be dismissed. In 5 view of the above pleadings, the trial Court has formulated the following issues:
1. Whether the plaintiff proves that he was in lawful possession and enjoyment over the suit schedule property as on the date of this suit?
2. Whether the plaintiff proves the alleged interference by the defendants?
3. Whether the plaintiff is entitled for relief of permanent injunction?
4. What order or decree?
5. In order to prove the suit, the plaintiff was examined as PW1 and examined two independent witnesses as PW2 and PW3 and produced 15 documents and same were marked as Exs.P1 to P15.
Defendant No.1 was examined as DW1 and another witness as DW2 and produced 19 documents and same were marked as Exs.D1 to D19. The trial Court after considering the material on record and on appreciation of oral documentary evidence, by its judgment and decree dated 24.03.2007, dismissed the suit filed by the plaintiff/appellant.
6. Being aggrieved by the same, appellant/plaintiff has filed first appeal before the Senior Civil Judge and CJM at Chamarajanagar in RA No.51/2007. Defendant No.1 entered appearance. The First Appellate Court after considering the material on record and on re- appreciation of finding recorded by the trial Court, by its judgment and 6 decree dated 12.08.2013, dismissed the appeal preferred by the plaintiff/appellant and thereby confirmed the judgment and decree passed by the trial Court. Being aggrieved by the judgment and decree passed by the Court below, the appellant has preferred this second appeal.
7. In this appeal, plaintiff/appellant has filed application IA.II of 2015 under Order 41 Rule 27 of CPC and has produced document namely certified copy of the judgment and decree in O.S No.2/2008 dated 25.02.2010 passed by the Senior Civil Judge, (Jr.Dvn), JMFC, Yelandur. I have carefully examined the reasons assigned by the appellant/plaintiff in IA.II of 2015 and accepting the said document, which is the judgment and decree passed by the Civil Judge, Jr.Dvn, JMFC, Yelahanka in O.S No.2/2018 between the legal representatives of defendant No.2 herein against 1st defendant herein and same be accepted as the said judgment and decree passed by the competent Court does not prejudice the interest of the defendants herein as the same has reached finality. Accordingly, IA.I of 2015 is accepted.
8. Sri.K.N.Nitish, learned counsel appearing for the appellant vehemently contended that both the Courts below have not considered the factual aspects of the case in the right perspective. He further submitted that there is no dispute with regard to the title of the property. However, in view of the sale agreement that has been 7 entered into between defendant No.2 and plaintiff/appellant on 14.08.2003 and in view of the averment made by defendant No.1 in the written statement with regard to relinquishment deed dated 19.06.1999 and the said relinquishment deed has been inadvertently appreciated and considered by the trial Court in O.S No.2/2008 and in that view of the matter, judgment and decree passed by the Court below requires to be set aside by remanding the matter to the Court below for fresh disposal by taking into account subject in question and subsequent event. Learned counsel further contended that there is a finding recorded by the Court below with regard to unstamped sale agreement dated 14.08.2003. However, the same was stamped under the Karnataka Stamp Act, 1957 before the District Registrar and as such, the plaintiff has paid the requisite stamp duty before the competent authority. Therefore in all means sale agreement dated 14.08.2003 is just and proper and same has to be accepted by interfering with the finding recorded by the Court below.
9. Having heard the learned counsel appearing for the appellant, as the respondents were served and unrepresented in this appeal and on perusal of the judgment and decree passed by the Court below, the undisputed facts of the case are that the plaintiff herein is claiming right against the suit schedule property as per the terms and conditions stated in the agreement of sale dated 8 14.08.2003 entered into between defendant No.2 herein who is none other than the son of defendant No.1. The only controversy raised by the 1st defendant in the written statement is with regard to relinquishment deed dated 19.06.1999 executed between defendant No.1 and defendant No.2 whereby the defendant No.2 has relinquished his rights insofar as the suit schedule property is concerned. However, I have carefully examined the finding the recorded by the trial Court whereunder the trial Court, while answering issue No.1 against plaintiff/appellant herein had taken into account the RTC produced by the plaintiff himself to show that the defendant No.1 is in possession of the property and defendant No.1 is alleged to be owner of the possession of the property, however, the sale agreement is of the year 2003 the relinquishment deed is of the year 1999 and there is no appreciation of evidence by the Court below.
10. I have carefully examined the finding recorded by the trial Court, however, the finding recorded by both the Court below is based on the written statement made by defendant No.1 with regard to relinquishment deed dated 19.06.1999. On perusal of the judgment and decree passed by the Civil Judge, Jr.Dvn and JMFC, Yelandur in O.S No.2/2008 is between wife and children of defendant No.2, were arrayed as respondent No.2(a) to (f) in this appeal against defendant No.1 (Shivanandaswamy) for relief of partition and separate 9 possession. The said suit came to be decreed in part whereunder the trial Court held that the plaintiffs therein are entitled for 1/4th share in all suit schedule property including the subject matter of the land in this appeal. In view of the finding recorded by the trial Court as stated above in O.S No.2/2008, this Court is of the opinion that taking into the subsequent event the law laid down in the case of GAIV DINSHAW IRANI & OTHERS vs. TEHMTAN IRANI & OTHERS reported in AIR 2014 SC 2326 the Hon'ble Supreme Court at paragraph 34 has observed as under:
"34. Considering the aforementioned changed circumstances, the High Court taking note of the subsequent events moulded the relief in the appeal under Section 96 of the Code of Civil Procedure and the same has been challenged by the appellants before us. In ordinary course of litigation, the rights of parties are crystallized on the date the suit is instituted and only the same set of facts must be considered. However, in the interest of justice, a court including a court of appeal under Section 96 of the Code of Civil Procedure is not precluded from taking note of developments subsequent to the commencement of the litigation, when such events have a direct bearing on the relief claimed by a party or one the entire purpose of the suit the Courts taking note of the same should mould the relief accordingly. This rule is one of ancient vintage adopted by the Supreme Court of America in Patterson vs. State of Alabama followed in Lachmeshwar Prasad Shukul vs Keshwar Lal Choudhury. The aforementioned cases were recognized by this Court in Pasupuleti Venkateswarlu vs. The Motor and General Traders wherein he stated that:10
"...If a fact, arising after the lis has come to court and has a fundamental impact It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fairplay is violated, with a view to promote substantial justice -- subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the Court can, and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed." The abovementioned principle has been recognized in a catena of decisions. This Court by placing reliance on the Pasupuleti Venkateswarlu Case (supra), held in Ramesh Kumar vs. Kesho Ram that:
"6. The normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of the lis. But this is subject to an exception. Wherever subsequent events of fact or law which have a material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief occur, the court is not precluded from taking a 'cautious cognizance' of the subsequent changes of fact and law to mould the relief." This was further followed in Lekh Raj vs. Muni Lal & Ors. This Court in Sheshambal (dead) through LRs vs. Chelur Corporation Chelur 11 Building & Ors. while discussing the issue of taking cognizance of subsequent events held that:
"19. To the same effect is the decision of this Court in Om Prakash Gupta case where the Court declared that although the ordinary rule of civil law is that the rights of the parties stand crystallised on the date of the institution of the suit yet the court has power to mould the relief in case the following three conditions are satisfied: (SCC p. 263, para 11) "11. ... (i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted;
(ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; and
(iii) that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise." This Court in Rajesh D. Darbar and Ors. vs. Narasinghro Krishnaji Kulkarni and Ors., a matter regarding the elections in a registered society, held that the courts can mould relief accordingly taking note of subsequent events.
Furthermore, in Beg Raj Singh vs. State of Uttar Pradesh & Ors. while deciding on the issue of renewal of a mining lease held that:
"....A petitioner, though entitled to relief in law, may yet be denied relief in equity because of subsequent or intervening events i.e. the events between the commencement of litigation and the date of decision. The relief to which the petitioner is held entitled may have been rendered redundant by lapse of time or may have been rendered incapable of being granted by change in law. There may be other circumstances which render it inequitable to grant the petitioner any relief over the respondents because of the balance tilting against the petitioner on weighing inequities pitted against equities on the date of judgment." Even this Court while exercising its powers under Article 136 can take note of subsequent events."
11. Following the law declared by the Hon'ble Supreme Court stated above, impugned judgment and decree passed by the First Appellate Court and trial Court are liable to be set aside and in view of 12 the judgment passed by the trial Court in O.S No.2/2008 dated 25.02.2010 and as such, the entire case is remanded to the trial Court in O.S No.116/2003 for fresh consideration. After considering the case of the appellant on merits and in view of the subsequent developments arose in the case on hand as per the judgment and decree in O.S No.2/2008 dated 25.02.2010, the appeal is disposed of by remanding the case to the trial Court for fresh disposal. It is also pertinent to note here that the trial Court while disposing of the suit shall consider the findings recorded by the competent Court in O.S No.2/2008 dated 25.02.2010. Hence, the following:
ORDER
1. Appeal is allowed.
2. Judgment and decree dated 12.08.2013 passed in RA No.51/2007 by the Senior Civil Judge and C.J.M at Chamarajnagar and judgment and decree dated 24.03.2007 passed in O.S No.116/2003 by the learned Civil Judge (Jr.Dn) and JMFC at Yelandur are set aside.
3. The case O.S No.116/2003 is remanded to Civil Judge (Jr.Dn) and JMFC at Yelandur for fresh disposal, in accordance with law.
Sd/-
JUDGE UN