Karnataka High Court
P S Venkanna S/O P Kanakaraya vs Syed Baseer Ahamed S/O Syed Babansab on 30 July, 2014
Author: A.V.Chandrashekara
Bench: A.V.Chandrashekara
1 R.S.A.No.573/2004
C/W RSA CROB 9/2004
RSA NO.3347/2006
RSA CROB 11/2007
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 30th DAY OF JULY 2014
BEFORE
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
R.S.A. NO.573/2004(DECL & INJ.)
C/w
RSA.CROB. 9/2004
R.S.A. NO.3347/2006
R.S.A.CROB. 11/2007
R.S.A. NO.573/2004
BETWEEN:
P.S.VENKANNA
S/O. P.KANAKARAYA,
AGE: 71 YEARS,
OCC: AGRICULTURE,
R/O. GANGAVATHI,
DISTRICT: KOPPAL.
DEAD ON 26.12.2010 AND
LEGAL REPRESENTATIVES ARE
BROUGHT ON RECORD AS PER
ORDER OF THIS HOON'BLE
COURT DATED 11.04.2014.
1A. SMT. VISHALAKSHI KANDKUR,
AGE: 76 YEARS,
OCC: HOUSEWIFE,
R/O. DOLLORS COLONY,
BANGALORE,
DIST: BANGALORE.
1B. P.V. PRABHU,
AGE: 74 YEARS,
OCC: BUSINESS,
2 R.S.A.No.573/2004
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RSA NO.3347/2006
RSA CROB 11/2007
R/O.ILAKAL,
TQ: BIJAPUR,
DIST: BIJAPUR.
1C. P.VENUGAOPAL,
AGE: 72 YEARS,
OCC: AGRICULTURE,
R/O. GANGAVATHI,
TQ: GANGAVATHI,
DIST: KOPPAL.
1D. P.KRISHNA
AGE: 59 YEARS,
OCC: BUSINESS,
R/O.GANESH NAGAR,
OLD HUBLI,
TQ: HUBLI,
DIST: DHARWAD.
1E. P.RAVINDRANATH
AGE: 57 YEARS,
OCC: BUSINESS,
R/O. HANUMASAGAR,
TQ: KUSHTIGI,
DIST: KOPPAL.
1F. P.MOHINI
AGE: 54 YEARS,
OCC: HOUSEWIFE,
R/O.BANTRI,
TQ: HOSPET,
DIST: BELLARY.
... APPELLANTS
(BY SRI.R.H.ANGADI, ADVOCATE)
AND:
1. SYED NAZEER AHAMED
S/O. SYED BABANSAB,
AGE: MAJOR,
OCC: BUSINESS,
R/O.ANDRUN QUILLA,
GANGAVATHI,
DIST: KOPPAL.
3 R.S.A.No.573/2004
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RSA NO.3347/2006
RSA CROB 11/2007
2. CITY MUNICIPAL COUNCIL,
GANGAVATHI BY ITS
COMMISSIONER.
... RESPONDENTS
(BY SRI.V.S.KALASURMATH, ADV., FOR M.V.HIREMATH, ADV.,
FOR R1, NOTICE TO R2- SERVED)
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 19.03.2004,
PASSED IN R.A. NO.2/2001, ON THE FILE OF THE CIVIL JUDGE
(SR.DN.), GANGAVATHI, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 6.12.1997,
PASED IN OS NO.16/1990, ON THE FILE OF THE CIVIL JUDGE
(JR.DN.), GANGAVATHI ETC.,
RSA.CROB. 9/2004
BETWEEN:
SYED NAZEER AHAMED
S/O. SYED BABANSAB,
AGE: MAJOR,
OCC: BUSINESS,
R/O.ANDRUN QUILLA,
GANGAVATHI, DIST: KOPPAL.
... CROSS OBJECTOR
(BY SRI.V.S.KALASURMATH, ADV., FOR M.V.HIREMATH, ADV., )
AND:
P.S.VENKANNA
S/O. P.KANAKARAYA,
AGE: 71 YEARS,
OCC: AGRICULTURE,
R/O. GANGAVATHI,
DISTRICT: KOPPAL.
DEAD ON 26.12.2010 AND
LEGAL REPRESENTATIVES ARE
BROUGHT ON RECORD AS PER
ORDER OF THIS HOON'BLE
COURT DATED 11.04.2014.
4 R.S.A.No.573/2004
C/W RSA CROB 9/2004
RSA NO.3347/2006
RSA CROB 11/2007
1A. SMT. VISHALAKSHI KANDKUR,
AGE: 74 YEARS,
OCC: BUSINESS,
R/O. ILKAL, TQ: DIST: BIJAPUR.
1B. P.V. PRABHU,
AGE: 74 YEARS,
OCC: BUSINESS,
R/O.ILAKAL,
TQ: BIJAPUR,
DIST: BIJAPUR.
1C. P.VENUGAOPAL,
AGE: 72 YEARS,
OCC: AGRICULTURE,
R/O. GANGAVATHI,
TQ: GANGAVATHI,
DIST: KOPPAL.
1D. P.KRISHNA
AGE: 59 YEARS,
OCC: BUSINESS,
R/O.GANESH NAGAR,
OLD HUBLI,
TQ: HUBLI,
DIST: DHARWAD.
1E. P.RAVINDRANATH
AGE: 57 YEARS,
OCC: BUSINESS,
R/O. HANUMASAGAR,
TQ: KUSHTIGI,
DIST: KOPPAL.
1F. P.MOHINI
AGE: 54 YEARS,
OCC: HOUSEWIFE,
R/O.BANTRI,
TQ: HOSPET,
DIST: BELLARY.
... RESPONDENTS
THIS CROSS OBJECTION UNDER ORDER 41 R 22 OF CPC
AGAINST THE JUDGMETN AND DECREE DATED 19.03.2004
5 R.S.A.No.573/2004
C/W RSA CROB 9/2004
RSA NO.3347/2006
RSA CROB 11/2007
PASSED IN R.A. NO.2/2001 ON THE FILE OF THE CIVIL JUDGE
(SR.DN.), GANGAVATHI DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMETN AND DECREE DATED 6.12.1997,
PASSED IN O.S. NO.16/1990 ON THE FILE OF THE CIVIL JUDGE
(JR.DN.), GANGAVATHI. ETC.,
R.S.A. NO.3347/2006
BETWEEN:
P S VENKANNA S/O P KANAKARAYA
AGED ABOUT 80 YEARS,
OCC: AGRICULTURE
R/O CHIKKA JANTHAKAL
TQ: GANGAVATHI.
SINCE DECEASED BY HIS LEGAL REPRESENTATIVES
1A. P.VISHWANATHAPRABHU
S/O. P.S.VENKANNA,
AGE: 64 YEARS,
OCC: SERVICE,
R/O. IRAKAL,
DIST: BIJAPUR.
1B. P.VENUGOLPAL
S/O. P.S.VENKANNA,
AGE: 62 YEARS,
OCC: AGRICULTURE,
R/O.CHIKKAJANATAKAL,
TQ: GANGAVATHI,
DIST: KOPPAL.
1C. P.KRISHNA S/O. P.S.VENKANNA,
AGE: 60 YEARS,
OCC: SERVICE,
R/O. C/O. SITATRAMASHETTY,
DOOR NO.31, "BHAVYA NILAYA"
ABHINAVA NAGAR ROAD,
OLD HUBLI-24.
1D. P.RAVINDRANATH
S/O. P.S. VENKANNA,
AGE: YI HEARS,
6 R.S.A.No.573/2004
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OCC: SERVICE,
TQ: HANUMASAGAR,
KUSHTAGI,
DIST: KOPPAL.
1E. SMT. VISHALAKSHI
W/O. VASANTH KANDAKUR,
AGE: 66 YEARS,
OCC: HOUSEHOLD,
R/O. RMV EXTENSION,
BANGALORE.
1F. SMT. T.MOHINI
W/O. T. SRINIVAS SHETTI,
AGE: 56 YEARS,
OCC: HOUSEHOLDS,
KIRAN MERCHANT,
VILLAGE: KANTINKHAMBA,
TQ: SANDUR,
DIST: BELLARY.
(AMENDED AS PER ORDER DATED 13.06.2012)
...APPELLANTS
(BY SRI. N P VIVEKMEHTA, ADV.,)
AND
1. HAROON RASHEED S/O KHAJAHUSSAIN SAB
A/A YEARS, OCC: POULTRY BUSINESS
R/O GANGAVATHI,SINCE DECD THROUGH HIS LR
1A. RUKHIA BEGUM W/O LATE HAROON RASHEED
A/A YEARS, OCC: HOUSEHOLD
R/O GANGAVATHI
1B. MAIMUNA BEGUM D/O LATE HAROON RASHEED
AGED ABOUT YEARS, OCC: HOUSEHOLD
R/O GANGAVATHI
1C. MD SALEM PASHA S/O LATE HAROON RASHEED
AGED ABOUT YEARS, OCC: BUSINESS
R/O GANGAVATHI
7 R.S.A.No.573/2004
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RSA NO.3347/2006
RSA CROB 11/2007
1D. MOHASINA BEGUM D/O LATE HAROON RASHEED
AGED ABOUT YEARS, OCC: HOUSEHOLD
R/O GANGAVATHI
1E. M D OBADULLA S/O LATE HAROON RASHEED
AGED ABOUT YEARS, OCC: BUSINESS
R/O GANGAVATHI
2. YAMANOORSAB S/O NOORSAB
AGED ABOUT YEARS, OCC: TEA STALL
R/O GANGAVATHI
3. AHAMED HUSSAINSAB S/O IMAMSAB
AGED ABOUT YEARS, OCC: KIRANI SHOP
R/O GANGAVATHI
4. BELLARY KHADARSAB S/O IMAMBSAB
AGED ABOUT YEARS, OCC: EGG MERCHANT
R/O GANGAVATHI
5. ABDUL GAFFOORSAB S/O KHASEEMSAB
AGED ABOUT YEARS, OCC: FISH MERCHANT
R/O GANGAVATHI,
5A. SINCE DECD THROUGH HIS LR
SMT.MAIHANBEE W/O LATE GAFOORSAB
AGED ABOUT YEARS, OCC: HOUSEHOLD
R/O NEDAR VENKATGESH TYRE CO, MANDAL
BHATTI LAYOUT, GANGAVATHI.
5B. KHASIMSAB S/O ABDUL GAFOORSAB
AGED ABOUT YEARS, OCC: BUSINESS
R/O NEDAR VENKATESH TYRE CO., MANDAL
BHATTI LAYOUT, GANGAVATHI
5C. KHAJAWALISAB S/O ABDUL GAFOORSAB
AGED ABOUT YEARS, OCC: BUSINESS
MEHABOOB ENGINEERING WORKS
KAMPLI ROAD, GANGAVATHI
5D. MOULASAB S/O ABDUL GAFOORSAB
AGED ABOUT YEARS, OCC: BUSINESS
R/O KIRANI STORES, LAKSHMI CAMP
8 R.S.A.No.573/2004
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GANGAVATHI
6. SUNKALAMMA W/O MALLAPPA
SINCE DECD BY HIS LRS
6A. P.MAHADEVA S/O MALLAPPA
A/A YEARS, OCC: TAILORING
R/O GANGAVATHI, SINCE DECD BY HIS LRS
6(A)1. SMT.SARASWATHI S/O LATE P.MAHADEVA
A/A 30 YEARS
6(A)2. KUMARI GEETHA D/O LATE P MAHADEVA
AGED ABOUT 12 YEARS, MINOR REP. BY THEIR
NATURAL GUARDIAN MOTHER SMT.SARASWATHI
W/O LATE P.MAHADEVA
6(A)3. KUMARI ANITA D/O LATE P MAHADEVA
AGED ABOUT 9 YEARS, MINOR REP. BY THEIR
NATURAL GUARDIAN MOTHER SMT.SARASWATHI
W/O LATE P.MAHADEVA
6B. P MANJU S/O MALLAPPA
AGED ABOUT YEARS, OCC: TAILORING
R/O GANGAVATHI
7. JAIRAMARAO S/O HANMANTHARAO
AGED ABOUT YEARS, OCC: TEA STALL
R/O GANGAVATHI
8. SHAIK AHAMED S/O ABDUL NABISAB
AGED ABOUT YEARS, OCC: SKIN MERCHANT
R/O GANGAVATHI
9. CHANDA HUSSAINSAB S/O KHAJAHUSAINSAB
AGED ABOUT YEARS, OCC: EGG MERCHANT
R/O GANGAVATHI
10. SAMDANI PEERANSAB S/O BABANSAB
AGED ABOUT YEARS, OCC: VEGETABLE
MERCHANT
R/O GANGAVATHI
9 R.S.A.No.573/2004
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11. DADE PEERANSAB S/O BABANSAB
AGED ABOUT YEARS, OCC: CONTRACTOR
R/O GANGAVATHI
12. THE TOWN MUNICIPAL COUNCIL
GANGAVATHI THROUGH ITS CHIEF OFFICER
... RESPONDENTS
(BY SRI. M V HIREMATH : V S KALASURMATH, ADVS., FOR R1-
11, R2 SERVED)
THIS RSA FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DATED: 8.9.2006 PASSED IN
R.A.NO.41/2005 ON THE FILE OF THE CIVIL JUDGE (SR.DN.),
GANGAVATHI, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGEMENT AND DECREE DATED: 26.8.2005 PASSED
IN OS.NO.17/1990 ON THE FILE OF THE PRL.CIVIL JUDGE
(JR.DN.), GANGAVATHI.
R.S.A. CROB NO.11/2007
BETWEEN:
1. HAROON RASHEED S/O KHAJAHUSSAIN SAB
SINCE DECD THROUGH HIS LR
1A. RUKHIA BEGUM W/O LATE HAROON RASHEED
A/A 45 YEARS, OCC: HOUSEHOLD
R/O GANGAVATHI
RAICHUR DISTRICT.
1B. MAIMUNA BEGUM D/O LATE HAROON RASHEED
AGED ABOUT 26 YEARS, OCC: HOUSEHOLD
R/O GANGAVATHI, RAICHUR DISTRICT.
1C. MD SALEM PASHA S/O LATE HAROON RASHEED
AGED ABOUT 25 YEARS, OCC: BUSINESS
R/O GANGAVATHI,
RAICHUR DISTRICT.
1D. MOHASINA BEGUM D/O LATE HAROON RASHEED
AGED ABOUT 22 YEARS, OCC: HOUSEHOLD
10 R.S.A.No.573/2004
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R/O GANGAVATHI.
1E. M D OBADULLA S/O LATE HAROON RASHEED
AGED ABOUT 17 YEARS, OCC: BUSINESS
R/O GANGAVATHI.
2. YAMANOORSAB
S/O. NOORSAB,
AGED ABOUT 47 YEARS,
R/O.GANGAVATHI,
RAICHUR DISTRICT.
3. AHAMED HUSSANINSAB
S/O. IMAMASAB,
AGED ABOUT 37 YEARS,
R/O.GANGAVATHI,
RAICHUR DISTRICT.
4. BELLARY KHADARSAB
S/O. IMAMSAB,
AGED ABOUT 55 YEARS,
EGG MERCHANT,
R/O. GANGAVATHI,
RAICHUR DISTRICT.
ALL ARE RESIDENT SOF VEGETABLE
MERCHANT AREA,
BENDHARAWADI ROAD,
NEAR MUTTON MARKET,
GANGAVATHI,
RAICHUR DISTRICT.
5. ABDUL GAFFOORSAB
S/O. KHASEEMSAB,
FISH MERCHANT,
SINCE DECEASED BY HIS LEGAL REPRESENTATIVES.
5A. SMT. MAIHANBEE
S/O. LATE GAFOORSAB,
AGED ABOUT 55 YEARS,
R/O. NEDAR VENKATESH
TYRE CO.,
MANDAL BHATTI LAYOUT,
GANGAVATHI,
11 R.S.A.No.573/2004
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RAICHUR DISTRICT.
5B. KHASIMSAB,
S/O. LATE ABDUL GAFOORSAB,
AGED ABOUT 40 YEARS,
R/O. NEDAR VENKATESH TYRE CO.,
MANDAL BHATTI LAYOUT,
GANGAVATHI.
5C. KHAJAWALISAB
S/O. LATE ABDUL GAFOORSAB,
AGED ABOUT 35 YEARS,
R/O. MEHABOOB ENGINEERING WORKS,
KAMPLI ROAD,
GANGAVATHI,
RAICHUR DISTRICT.
5D. MOULASAB
S/O. LATE ABDUL GAFOORSAB,
AGED ABOUT 30 YEARS,
R/O.KIRANI STORES,
LAKSHMI CAMP,
GANGAVATHI,
RAICHUR DISTRICT.
6. SUNKALAMMA
W/O. MALLAPPA SINCE
DECEASED BY HER LEGAL REPRESENTATIVES
6A. P. MAHADEVA
S/O. MALLAPPA
SINCE DECEASED
BY LEGAL REPRESENTATIVES
6AI. SMT. SARASWATHI
S/O. LATE P. MAHADEVAPPA
AGED ABOUT 31 YEARS.
6AII. KUMARI GEETHA
D/O. LATE P. MAHADEV
AGED ABOUT 12 YEARS.
6AIII. KUMARI ANITA
D/O. LATE P. MAHADEV,
12 R.S.A.No.573/2004
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AGED ABOUT 9 YEARS.
NO. 6AII AND 6AIII BEING
MINORS REP BY THEIR NATURAL
GUARDIAN MOTHER SMT. SARASWATHI
W/O. LATE P. MAHADEVA.
6B. P. MANJU
S/O. MALLAPPA
AGED ABOUT 28 YEARS,
R/O. GANGAVATHI,
RAICHUR DISTRICT.
7. JAIRAMARAO
S/O. HANMANTHARAO,
AGED ABOUT 65 YEARS,
R/O. GANGAVATHI,
RAICHUR DISTRICT.
8. SHAIK AHAMED,
S/O. ABDUL NABISAB,
AGED ABOUT 40 YEARS,
R/O. GANGABATHI,
RAICHUR DISTRICT.
9. CHANDA HUSSAINSAB,
S/O. KHAJAHUSSAINSAB,
AGED ABOUT 42 YEARS,
R/O. GANGAVATHI,
RAICHUR DISTRICT.
10. SAMDANI PEERANSAB
S/O. BABANSAB,
AGED ABOUT 38 YEARS,
R/O. GANGAVATHI,
RAICHUR DISTRICT.
11. DADE PEERANSAB
S/O. BABANSAB
AGED ABOUT 38 YEARS,
R/O. GANGAVATHI,
RAICHUR DISTRICT.
...CROSS OBJECTORS
13 R.S.A.No.573/2004
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AND:
1. THE TOWN MUNICIPAL
COUNCIL, GANGAVATHI,
RAICHUR DISTRICT,
THROUGH ITS CHIEF OFFICER.
2. P.S. VENKANNA
S/O. P. KANAKARAYA,
AGED ABOUT 80 YEARS,
R/O. CHIKKA JANTHAKAL,
GANGAVATHI TALUK.
...RESPONDENTS
(NOTICE TO R1 SERVED, SRI. BASAVARAJ KAREDDY, ADV.,
FOR R2)
THIS CROSS OBJECTION FILED (IN RSA NO.3347/2006)
UNDER ORDER 41 RULE 22 OF CPC AGAINST THE JUDGEMENT
AND DECREE DATED 08.09.2006 PASSED IN RA NO.41/2005
ON THE FILE OF THE CIVIL JUDGE (SR.DN.) GANGAVATHI
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 26.08.2005 PASSED IN O.S. NO.17/1990
ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN.) GANGAVATHI
DISMISSING THE SUIT IN SO FAR AS IT RELATES TO THE
RELIEF OF DECLARATION.
THESE APPEALS AND CROSS OBJECTIONS COMING ON
FOR THIS DAY, THE COURT DELIVERED THE FOLLOWING:
COMMON JUDGMENT
Appellants in R.S.A. No.573/2004 are the legal
representatives of deceased P.S. Venkanna. The said
P.S. Venkanna was defendant No.1 in the original suit
bearing O.S. No.16/1990 and suit was filed for the relief
of declaration and for permanent injunction.
14 R.S.A.No.573/2004
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Respondent No.2 is the Town Municipal Council,
Gangavathi (for short the TMC) of Koppal District. The
property in respect of which the relief of permanent
injunction has been sought in O.S. No.16/1990
measures 80 feet East-West, 80 feet North-South
bounded on the east Lane, on the west Wooden cabin of
one Yamanoorsab and Benderwadi Road (Municipal
Road, on the North open space of T.M.C. and on the
South Mutton Market Road. The relief of declaration is
sought in O.S. No.60/1990 is to the effect that the
compromise entered into between the deceased
defendants No.1 and 2 and in O.S. No.172/1979 is null
and void. One Sri.P.S.Venkanna died during the
pendency of this appeal and hence, the legal
representatives of P.S. Venkanna have been brought on
record.
2. Two persons namely Sayyad Basheer
Ahamed and Syed Nazeer Ahamed are the sons of Syed
15 R.S.A.No.573/2004
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Babansab residents of Gangavathi chose to file a suit in
O.S. No.16/1990 against the Municipal Council and
P.S.Venkanna for the relief of declaration that the
compromise entered into between deceased defendants
No.1 and 2 in O.S. No.172/1979 is null and void and for
the relief of permanent injunction in respect of space
belonging to Municipal No.2:2:143 measuring East-West
80 feet and North-South 80 feet situated in Gangavathi
Town, Koppal. The said suit was contested by
P.S.Venkanna. Though the TMC represented by its
Chief Secretary has filed detailed written statement, did
not pursue the same by entering into the witness box.
Ultimately, suit of the plaintiffs filed in O.S. No.16/1990
insofar as it relates to the relief declaration that the
compromise is null and void came to be dismissed but
relief of permanent injunction was granted. This
considered judgment dated 06.12.1997 was challenged
by P.S.Venkanna in the second appeal in R.A.
No.02/2001 before the Court of Civil Judge (Jr.Dn.),
16 R.S.A.No.573/2004
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Gangavathi. The said appeal filed under Section 96 of
C.P.C. has been dismissed vide considered judgment
dated 19.03.2004. It is these judgments and decrees
passed in O.S. No.16/1990 affirmed in R.A. No.02/2001
is called in question in this appeal bearing R.S.A.
No.573/2004 by filing an appeal under Section 100 of
C.P.C. This appeal has been admitted to consider the
following substantial question of law framed on
12.10.2004.
"Whether the lower appellate Court is
justified in dismissing the suit on the ground
that L.Rs of one of the plaintiffs who died as a
respondent in the appeal having not brought on
record and the appeal abates as a whole?
3. Syed Basheer Ahamed and Syed Nazeer
Ahamed plaintiffs in O.S. No.16/1990 were aggrieved as
the relief of declaration was refused by the Trial Court
in O.S.No.16/1990 and hence, they chose to file cross
17 R.S.A.No.573/2004
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objection No.9/2004 in R.A. No.2/2001 under Order 41
Rule 122 of C.P.C. The cross objection has been
dismissed on the ground of delay. Hence, cross
objection has been filed by the plaintiff of O.S.
No.16/1990 on the ground of rejection of their cross
objection on the ground of delay, before this Court.
4. Eleven persons filed a suit in O.S.
No.17/1990 against the TMC Gangavathi and P.S.
Venkanna arraigning them as defendants No.1 and 2
seeking the relief of declaration that the judgment and
decree passed in O.S. No.172/2009 is null and void and
for permanent injunction in respect of different
premises carved out in re-survey No.305/1 and 305/2
of Gangavathi Town. The properties in respect of which
the above reliefs had been sought are 11 items and they
have been described in the sketch appended to the
plaint in O.S. No.17/1990. Plaintiffs are stated to be in
possession of the suit premises having put up
18 R.S.A.No.573/2004
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temporary structures. The said suit bearing O.S.
No.17/1990 was contested by the defendants therein
and the defence taken up by the defendants therein is
identical to the defence taken up by them in O.S.
No.16/1990. In the said suit also the learned Civil
Judge (Jr.Dn.) has refused to grant the relief of
declaration and has granted the relief of permanent
injunction only. Suit was dismissed against defendant
No.1 and permanent injunction is granted only against
defendant No.2. This judgment dated 26.08.2005 was
called in question by defendant No.2-P.S.Venkanna in
R.A. No.41/2004 before the Court of Senior Civil Judge,
Gangavathi. Being aggrieved by the rejection of the relief
of declaration, the plaintiffs of O.S. No.70/1990 chose
to file cross objection under Order 41 Rule 22 of C.P.C.
in R.A. No.41/2005. The said cross objection has been
dismissed on the ground of delay i.e. as time barred.
Regular Appeal filed by P.S.Venkanna has been
dismissed after contest. Against the said judgment and
19 R.S.A.No.573/2004
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decree, Venkanna chose to file another appeal in R.S.A.
No.347/2006. Cross objection have been filed by the
plaintiffs in cross objection No.11/2007.
5. RSA No.3347/2006 has arisen out of
judgment passed in R.A. No.41/2005 and cross
objections. Following substantial question of law has
been framed on 05.08.2011 by this Court.
"Whether in the facts and circumstances of
the case, the Courts below were justified in
decreeing the suit for injunction when the decree
passed in O.S. No.172/1979 is not disturbed?
6. Lower Court records of both these cases
have been secured and learned advocates appearing for
the parties have submitted their arguments.
Sri.R.H.Angadi represents the legal representatives of
P.S.Venkanna in R.S.A.No.573/2004 and in the
connected cross objection. Similarly,
Sri.N.P.Vivekmehta appears for legal representatives of
20 R.S.A.No.573/2004
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Venkanna in the connected R.S.A.No.3347/2006.
Sri.V.S.Kalsoormath, learned advocate appears for the
plaintiffs in both the cases. The TMC is not represented
by any advocate and TMC is duly served but
unrepresented.
REASONS
7. Plaintiff in O.S. No.16/2001 are the
brothers. They had filed a suit for the main relief of
declaration to the effect that the compromise entered
into between the TMC and the deceased P.S.Venkanna
in O.S. No.172/1979 is null and void and for the
consequential relief of permanent injunction.
Admittedly, the main relief has not been granted by the
Trial Court and the rejection of the main relief has been
affirmed in the First Appellate Court.
8. During the pendency of the Regular Appeal
filed in R.A. No.2/2001 arising out of O.S. No.16/1990,
one of the respondents namely Syed Basheer Ahmed
21 R.S.A.No.573/2004
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died but his legal representatives were not brought on
record and therefore, substantial question of law is
framed in this case. What is argued before this Court by
the plaintiff is that if one of the respondents dies and
his legal representatives are not brought on record in
spite of there being legal lapse the whole appeal would
make abates. This Court is unable to accept the said
contention for the reason that the respondents are the
brothers and they have common interest. One of the
plaintiffs could pursue the reliefs sought for and they
have done so.
9. Hence, it is relevant to refer to a decision of
this Hon'ble Supreme Court in the case of Shahazada
Bi and Others v. Halimabi (since dead) by her LRs.
reported in ILR 2004 KAR 4976. It is held that in the
light of omission to implead LRs of the one of the
defendants would not make whole appeal to abates.
This decision is clearly applicable to the facts of this
22 R.S.A.No.573/2004
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case because plaintiffs being the brothers were
arraigned as respondents in the Regular Appeal filed by
P.S.Venkanna. Death of one of respondents would not
make the whole appeal to abate because other
respondents had common interest along with the
deceased defendant and therefore, the appeal would not
abate. If the interest of codefendants are distinct suit
would abate. In the present case, there is no conflicting
interest between the plaintiffs interse. The interest
between the plaintiffs interse is common and is not
distinct.
10. The respondents in R.A. No.2/2001 were
plaintiffs in O.S. NO.16/1990 and all of them were
concerned about one block measures 80x80 feet
situated in Gangavathi Town. No specific distinct
interest was involved in respect of deceased plaintiff
who was respondent in the 1st appeal. In this view of
the matter, the approach adopted by the First Appellate
23 R.S.A.No.573/2004
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Court in dismissing the appeal of P.S.Venkanna as a
whole in the light of death of one of the respondents is
not justified. As a result of the same, substantial
question of law framed in RSA No.573/2004 is to be
answered in the Negative.
RSA No.3347/2006
11. In both the suits O.S. Nos.16 and 70/1990
the main relief is sought by the plaintiffs i.e. two
plaintiffs in O.S. No.16/1990 and 11 plaintiffs in O.S.
No.17/1990 is to the effect that the compromise entered
into between the 1st defendant TMC and P.S.Venkanna
is null and void and it has no legal effect. As a result of
the compromise entered into between the TMC and
P.S.Venkanna, the compromise decree has been passed
in the regular appeal arising out of judgment in O.S.
No.172/1979. Infact, the compromise was not entered
into between the TMC in the original suit. On the other
hand, the compromise was entered into between them
24 R.S.A.No.573/2004
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in the Regular Appeal bearing R.A. No.6/1985 which
was pending on the file of Senior Civil Judge,
Gangavathi. Ex.D12 is the copy of the judgment passed
in O.S. No.172/1979 and the said suit filed by
P.S.Venkanna against TMC ended in dismissal of the
suit. Against the said judgments, Venkanna filed R.A.
No.6/1985 under Section 96 of C.P.C.
12. The certified copy of the compromise petition
filed under Order 23 Rule 3 of C.P.C. in R.A. No.6/1985
is marked as Ex.P1 in O.S. No.16/1990. The property
in respect of which compromise was entered into
between P.S.Venkanna appears 2:2/133 bounded on
the east by 2:2:134, space of Kalmath and one
Annarao, on the west Municipal Road, on the North
Nala and proposed road and Sough Mutton Market.
This property bearing 133 measures 208 measures 208'
- 299' on the North-South and 80'--50' on the East-
West.
25 R.S.A.No.573/2004
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13. Infact, the property in respect of which the
compromise entered into between P.S.Venkanna and
the TMC in R.A. No.6/1985 is definitely different from
the property described in O.S. No.16/1990 filed by two
plaintiffs. As already discussed, the measurement of
the schedule property in O.S. No.16/1990 is only 80x80
feet and the boundaries mentioned are totally different
from the boundaries mentioned in R.A. No.6/1985,
except the southern boundary i.e., the Mutton Market
which is mentioned in both these suit schedule
properties. Admittedly, the property in question as
mentioned in Ex.P1 the compromise decree was
purchased by P.S.Venkanna in the year 1954 through a
registered sale deed from the lawful vendor. Ex.D7 is
the sale deed of the year 1954 and the boundaries and
measurements found therein tallies with the
measurements found in Ex.P2-the compromise decree
on R.A. 6/1985.
26 R.S.A.No.573/2004
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14. Admittedly, the plaintiffs have put up shops
by means of temporary structure and are doing
business. They had claimed injunction in order to
support their possession. They have pleaded that
municipality has handed over the vacant possession of
the suit property to them in order to put temporary
structures for running their business. Admittedly, the
TMC has not been able to substantiate its averments in
any manner. Suffice to state that P.S.Venkanna has
been able to probabilise the title set up by him in
respect of the property described in R.A. No.6/1985.
What is mentioned in Ex.P1 - the compromise petition
in R.A. No.6/1985 is that the parties had settled the
matter out of the Court and compromise had been
effected between them. Pursuant to the terms of the
compromise, appeal in R.A. No.6/1985 was allowed and
the judgement and decree passed in O.S. No.172/1979
was set aside and permanent injunction was granted
against the TMC introspect of the property described in
27 R.S.A.No.573/2004
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the schedule appended to the said suit.Plaintiffs have
not been able to probabilise their case, except to this
extent that they are in unauthorised possession of the
suit property.
15. Admittedly, plaintiffs in both the suits have
been in possession of the property for quite a good
length of time and same has fructified into settled
possession. They have been not able to prove the
special plea of adverse possession. Admittedly,
additional issue No.1 framed in O.S. No.16/1990 was
on the plaintiffs. They were expected to prove that they
had perfected the title by way of adverse possession
based on the pleadings adduced in para No.4. The said
additional issue No.1 in O.S. No.16/1990 has been
answered in the negative. Admittedly, the plea of
adverse possession is a special plea. In order to
establish the said plea party must necessarily admit the
title of advisory. Apart from this, such a party has to
28 R.S.A.No.573/2004
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prove that he or she had been in possession of the
property title of adversary for a period of 12 years
openly to the knowledge and adversely to the interest of
the original owners. It is further expected to prove the
date on which he or she came into possession.
Principles to this effect have been very elaborately
reiterated by the Division Bench of this Court in the
case of Janatha Dal party V. The Indian National
Congress, New Delhi and others reported in 2014(1)
KCCR 95 (DB). Similarly, plaintiffs in O.S. No.17/1990
had also taken up the adverse possession. Burden was
on them vide issue No.2. The said issue No.2 is
answered in the negative.
16. Plaintiffs in O.S. No.16/1990 chose to file
cross objection after the lapse of 5 years 436 days from
the date of pronouncing the judgment in O.S. 16/1990.
Similarly, plaintiff of O.S. No.17/1990 chose to file cross
objection almost after the lapse of 5 years. Hence, the
29 R.S.A.No.573/2004
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First Appellate Court has refused to condone the
inordinate delay committed by them. Hence, no
infirmity is found. On the other hand, P.S.Venkanna
has been able to establish that he has become the
absolute owner of the properties described in both the
suits and his legal representatives have been able to
establish that the compromise entered into between
P.S.Venkanna and the TMC is a valid compromise.
17. Infact, the judgment of dismissal passed in
O.S. No.172/1979 has been reversed because of the
compromise entered into between P.S.Venkanna and
The TMC in R.A. No.6/1985. Therefore, the judgement
and decree passed in O.S. No.172/1979 has merged
with the First Appellate Court decree and therefore, the
suit has been virtually decreed as prayed for.
18. In this view of the matter, no interference is
called for in regard to the rejection of the main relief of
declaration to the effect that the judgement and decree
30 R.S.A.No.573/2004
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passed in O.S. No.172/1979 is null and void. On the
other hand, the relief of injunction granted cannot be
considered as a permanent injunction and injunction is
granted only to the limited extent of protecting the
plaintiffs from being evicted contrary to the due process
of law.
19. Admittedly, the TMC has already suffered a
decree in O.S. No.l6/1985. As a result of the
compromise entered into between the Venkanna and
TMC in R.A. No.6/1985 and O.S. No.172/1979 has
stood decreed. Admittedly, the TMC is not claiming any
right in respect of the suit properties. The plaintiffs have
not also been able to trace their title to the possession
held by them. The possession so held by them cannot
be considered as a lawful possession. But it is settled
possession. As a matter of fact, the possession so held
by the plaintiffs has blossomed itself into settled
position. Even if a person who is possession of the
31 R.S.A.No.573/2004
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property has no title and he is found to be in possession
for a good number of years, such a possession will be
settled possession and owner cannot evict except
according to due process of law.
20. Hence, plaintiffs are entitled for a limited
injunction till they are evicted under due process of law.
In fact plaintiffs came into possession of the property at
the instance of the Municipality and therefore, it is the
duty of the Municipality to somehow provide alternative
space to the plaintiffs who are depending upon business
for their livelihood. At the same time, the title of
P.S.Venkanna's legal representatives has been upheld
by both the Courts and the same and the same cannot
be allowed to be diluted. It need not be reiterated that
TMC - Gangavathi which is a statutory authority is
expected to make arrangement for relocating the
plaintiffs of both the suits at the earliest so that decree
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obtained by P.S. Venkanna's legal representatives is not
made in effective.
21. Law will not come to the help to those
persons who sleep over the rights. In both the cases,
plaintiffs chose to approach the first appellate Court
after the expiry of 5 years and it is to be construed as
inordinate delay. Even otherwise, plaintiffs have not
been able to probabilise their case in any manner except
to be in possession of the property unauthorizedly for
sometime.
22. In both these cases, the trial Court as well as
the first appellate Court have specifically held in regard
to the possession of the plaintiffs. Admittedly, plaintiffs
have put up temporary construction and have been
running business and it is the only source of their
livelihood. They have been in possession for quite a
long time and as already discussed, their possession,
though not lawful as fructified itself into settled
33 R.S.A.No.573/2004
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position. Of course the persons who are in settled
position, can be evicted only according to the due
process of law. As already discussed, municipality will
have to make suitable alternative arrangement for the
plaintiffs to relocate their establishment and thereby
help the legal representatives of Venkanna to regain
their property at the earliest. In this view of the matter,
the trial Court as well as the first appellate Court are
not justified in granting the relief of permanent
injunction. On the other hand, both the Courts should
have modified the relief of injunction to a limited
injunction to be in force till plaintiffs are evicted under
due process of law.
ORDER
The appeal filed under Section 100 of CPC in R.A.No.573/2004 and RSA.3347/2006 are allowed holding that the plaintiffs in O.S.No.616/99 are only in settled position and they are liable to be evicted 34 R.S.A.No.573/2004 C/W RSA CROB 9/2004 RSA NO.3347/2006 RSA CROB 11/2007 according to due process of law. Consequently, judgments of the trial Court as well as the first appellate Court are set aside and the decree of injunction is modified by limiting it to be in force till they are evicted under due process of law.
The cross appeal filed by the plaintiffs under Order 41 Rule 22 of CPC are dismissed.
As already discussed, the Town Municipal Council, Gangavathi, shall try to make alternative arrangements for the plaintiffs after relocating them and hence, legal representatives of the deceased Venkanna to regain their property at the earliest.
It is made clear that the Town Municipal Council, Gangavathi shall take all steps to relocate the plaintiffs at the earliest preferably within a maximum period of one year from today. Consequently, amount of Rs.6,000/- paid by legal representatives of Venkanna be returned to Venkanna's Legal representatives. 35 R.S.A.No.573/2004 C/W RSA CROB 9/2004 RSA NO.3347/2006 RSA CROB 11/2007
There is no order as to costs.
Original of this judgment shall be kept in the main appeal and copies in the connected appeal and cross objections.
SD/-
JUDGE BS/MBS