Karnataka High Court
Smt. Bhagyalakshmi vs Smt. D.R. Seethamma on 12 November, 2021
Author: H.P.Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.F.A.NO.1158/2003 (DEC)
BETWEEN:
1. SMT. BHAGYALAKSHMI,
W/O AGADURAPPA,
AGED ABOUT 55 YEARS,
R/A NO.329, 10TH MAIN,
2ND STAGE, INDIRANAGAR,
BENGALURU-560 038.
2. SRI PRAKASH,
AGED ABOUT 42 YEARS,
DOING GRILL WORK
IN SITE NO.29, 3RD CROSS,
NEAR RETSON BAR,
KATRIGUPPA MAIN ROAD,
BENGALURU-560 085.
3. SRI RAVI,
AGED ABOUT 45 YEARS,
DOING GRILL WORK
IN SITE NO.29, 3RD CROSS,
NEAR RETSON BAR,
KATRIGUPPA MAIN ROAD,
BENGALURU-560 085. ... APPELLANTS
[BY SRI KALYAN BASAVARAJ S., ADVOCATE FOR APPELLANT NO.1;
SRI G.S. VISWESWARA, ADVOCATE FOR APPELLANT NOS.2 AND 3)
AND:
1. SMT. D.R. SEETHAMMA,
W/O LATE SRI D.RAMA RAO,
AGED ABOUT 68 YEARS.
2
2. SRI D.R. SREENATH,
S/O LATE D.RAMA RAO,
AGED ABOUT 47 YEARS.
3. SRI D.R. SREEPATHY,
S/O LATE D.RAMA RAO,
AGED ABOUT 45 YEARS.
4. SRI D.R.SRIKANTH,
S/O LATE D.RAMA RAO,
AGED ABOUT 40 YEARS.
5. SRI D.R.PRABHAKAR,
S/O LATE D.RAMA RAO,
AGED ABOUT 39 YEARS.
6. SRI D.R.SREEVATHSA,
S/O LATE D. RAMA RAO,
AGED ABOUT 29 YEARS.
RESPONDENTS 1 TO 6 ARE
R/AT NO.493/68, 16TH MAIN, 1ST BLOCK,
BANASHANKARI 1ST STAGE,
BENGALURU-560 050.
7. SMT.D.R.VATHSALA,
D/O LATE D.RAMA RAO,
W/O D.R.NAGARAJA RAO,
AGED ABOUT 50 YEARS,
R/A NO.9/3, WEST ANJANEYA
TEMPLE STREET, BASAVANAGUDI,
BENGALURU-560 004.
8. SMT.D.R.NIRMALA,
D/O LATE D.RAMA RAO,
W/O B.N.ANANTHA RAGHAVAN,
AGED ABOUT 36 YEARS,
R/A NO.493/68, 1ST FLOOR,
16TH MAIN, 1ST BLOCK,
BANASHANKARI 1ST STAGE
BENGALURU-560 050.
9. SRI N.VENKOBA RAO SINDHE (MURALI).
3
10. SRI N.NAGESH.
11. SRI N.JAGADEESH.
12. SRI SUDHAKAR.
13. SRI N.KRISHNAMURTHY.
14. KUMARI CHANDRI.
15. SRI N.SHANKAR.
RESPONDENTS 9 TO 15 ARE
CHILDREN OF LATE NARASINGA RAO S.
(DEFENDANT NO.1),
AGE: MAJOR,
R/AT NO.466, KUMARA KRUPA,
MAHATMA GANDHI CIRCLE
4TH NEHRU ROAD, GIRINAGAR,
BENGALURU-560 085.
16. SMT. INDIRA,
W/O NARAYANA RAO,
AGE:MAJOR,
MILK VENDOR,
NO.60, GAVIPURAM BADAVANE,
GAVIPURAM POST,
BENGALURU-560 019. ... RESPONDENTS
[BY SRI Y.K. NARAYANA SHARMA, FOR C/R-1 TO R-8 (THROUGH VC);
R-9 TO R-16 - SERVICE OF NOTICE DISPENSED WITH
VIDE ORDER DATED 15.06.2004]
THIS R.F.A. IS FILED UNDER ORDER 41 RULE 1 R/W
SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED
23.06.2003 PASSED IN O.S.NO.1962/1985 ON THE FILE OF THE I
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY
(CCH NO.2), DECREEING THE SUIT FOR DECLARATION.
THIS R.F.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 04.10.2021, THIS DAY, THE COURT PRONOUNCED
THE FOLLOWING:
4
JUDGMENT
This appeal is filed challenging the judgment and decree dated 23.06.2003 passed in O.S.No.1962/1985 on the file of the I Additional City Civil and Sessions Judge, Bengaluru.
2. The parties are referred to as per their original rankings before the Trial Court to avoid the confusion and for the convenience of the Court.
3. The factual matrix of the case is that the plaintiff sought the relief of declaration to grant the judgment and decree declaring that the possession of the suit schedule property by defendant No.2 and the alleged subsequent sale, if any, of the same in favour of defendant No.2 by defendant No.1 is illegal, unjustified and of no consequence in so far the plaintiff's right of ownership and possession of the suit schedule site is concerned and to direct defendant Nos.1 and 2 to put the plaintiff in possession of the suit schedule site as a consequential relief to the main relief of declaration.
4. The plaintiff in the suit contended that he had purchased the plaint schedule site from defendant No.1 under a registered sale deed dated 14.12.1961 for a valuable 5 consideration of Rs.1,000/-. In pursuance of the sale deed, defendant No.1 put the plaintiff in possession of the plaint schedule property and ever since then the plaintiff has been in possession and enjoyment of the same as an owner. After the sale in favour of the plaintiff, the plaintiff fenced the suit property and power of attorney was issued by the plaintiff in favour of Vidhya Peeta Co-operative Housing Society Ltd. in the year 1966. Subsequently, the plaintiff was issued a katha in his favour in the year 1973. The plaintiff obtained the encumbrance certificate, index of land and record of right in the year 1973. The plaintiff's right of ownership and possession was exercised by the Vidya Peeta Society on his behalf. The plaintiff has also submitted a letter and an affidavit to the BDA in the year 1976. The Society had filed W.P.Nos.9566-9573/1980 against the BDA and an interim order has been passed on 04.07.1980, for which the plaintiff is one of the parties. During the year 1980, the plaintiff was away from Bangalore upto year 1984 and upto which the plaintiff was in possession and enjoyment of the same as owner. When the plaintiff came to the suit property in the year 1984, he found to his utter shock and dismay, which was under the illegal occupation of defendant No.2. On enquiry, 6 defendant No.2 informed the plaintiff that she was the absolute owner of the property. On a complaint preferred by the plaintiff, the police had enquired and found that defendant No.2 has illegally trespassed into the plaint schedule property who was running a flour mill under the name and style of Sathya Sai Flour Mills. The Defendant No.2 informed the plaintiff that she was the owner of the schedule property having purchased the same from defendant No.1. As the defendant No.2 refused to divulge any information, the plaintiff asked defendant No.2 to remove the construction and defendant No.2 did not heed to the words of the plaintiff and on the contrary, prevented the plaintiff from entering upon the schedule site. Hence, the suit came to be filed. It is further alleged in the plaint that the defendant is in the habit of putting the parties in possession other than those to whom the sites have been sold. There is a similar suit pending against defendant No.1 filed for purchase of site No.13. There was also a criminal case bearing C.C.No.324/1984 against defendant No.1 for the offences of fraud and cheating. The plaintiff was an employee of Coffee Board and now he is retired and he had poured in his savings in order to purchase the site from defendant No.1. The defendants have colluded with each 7 other with intent to defraud the plaintiff. The defendant No.2 has no manner of right to remain in possession of the suit property.
5. In pursuance of the suit summons, defendant No.1 filed his written statement admitting that he has sold the site to the plaintiff in the year 1961. He does not remember the number or measurement of the site. He contends that if defendant No.2 has illegally trespassed or occupied the land, defendant No.1 is in no way responsible for such occupation. He contends that he has not sold the plaintiff's site to defendant No.2 and even if defendant No.2 informed the plaintiff that she has purchased the same from defendant No.1, then the defendant No.1 is not responsible for the statement made by defendant No.2. There is no cause of action for the suit and defendant No.1 is neither a necessary party nor a proper party and prayed the Court to dismiss the suit.
6. The defendant No.2 in her written statement has denied the contention of the plaintiff and also denied the sale deed dated 14.12.1961. The defendant No.2 has contended that her husband has purchased a site from defendant No.1 and she 8 and her husband are in possession of the same by virtue of registered sale deed dated 19.12.1974. The katha was changed in the name of her husband Muniswamappa as disclosed in index of lands extract and R.R. extract. The award notice was also issued as the land in Sy.No.10 and Sy.No.10/4 had been acquired by the BDA and it is addressed to Muniswamappa, the husband of defendant No.2. The defendant No.2 is in possession of the site purchased by her husband. After purchase of the site, defendant No.2 and her husband have built a building and flour mill is installed and it is being run by them. They have obtained a licence to install the flour mill. The defendant No.2 and her husband have built the building in the year 1975 investing more than Rs.30,000/-. They were residing there in that building. Subsequently, a flour mill was installed by investing more than Rs.30,000/- and the entire property is based by a barbed wire. When the building was constructed, nobody objected, including the plaintiff and when the flour mill was installed, there was no objection and to the knowledge of the plaintiff No.2, defendant No.2 and her husband are in possession and enjoyment of the property since 1975. Electric connections were obtained and electric meters stand in the name 9 of the defendant No.2. The plaintiff and defendant No.1 have colluded with each other. The sale deed in favour of husband of defendant No.2 is correct as with boundaries and there was a house of one Smt. Kamalamma on the northern side of the site bearing No.47 and the layout plan produced by the plaintiff is not correct. The suit is not properly valued. The boundaries given to the plaint schedule property are imaginary, but the property in possession of the defendant bearing site No.47 measuring 60 feet east west, 40 feet north south and bounded on east by 30 feet road, west by house belonging to a private party, south by another house belonging to a private party, north by house of Kamalamma, which has been leased to a tenant. As the entire land in Sy.No.10/4 and Sy.No.10 have been acquired by the plaintiff cannot base his suit for possession on the basis of his alleged title and hence prayed the Court to dismiss the suit.
7. Defendant Nos.3 and 4 contended that they are in possession of the suit property and they are paying rent to defendant No.2 and after her death, to her daughter by name Lakshmi, who is the sole legal representative of defendant No.2. It is their further contention that they are in possession of site 10 No.47 and not site No.29 and they have no claim against the plaintiff, but they claim through defendant No.2 and they are statutory tenants and their rights are protected.
8. The defendant No.5 in the written statement contended that she is the daughter of Muniswamappa and Smt. Chinnamma and she adopted the written statement filed by defendant No.2 and so also defendant Nos.3 and 4. The defendant No.5 denied the allegations made in the plaint and contended that the suit itself is not maintainable as the legal representatives of Muniswamappa are not brought on record. Thus, the suit abates. In spite of specific contention taken by defendant No.2, the plaintiff has not taken any steps to implead the defendant No.5 who is the daughter of deceased Muniswamappa. When the plaintiff contention that defendant No.2 died without leaving any legal representative, the question of taking further steps against the legal representative does not arise is false. The defendant No.5 is the legal representative and the plaintiff ought to have invoked Order 22 Rule 4(A) of CPC, even if it is assumed that there are no legal representatives of defendant No.2. When the plaintiff did not admit that defendant No.5 is the legal representative, without resorting to 11 the provisions of Order 22 Rule 4(A) and 5 of CPC, the plaintiff cannot maintain a suit against defendant No.5.
9. Based on the pleadings of the parties, the Trial Court framed the following issues and additional issues:
1. Whether the plaintiff proves his legal title to the suit site?
2. Whether the possession of suit site by defendants not unlawful?
3. Whether the suit has been property valued and court fee paid is sufficient?
4. Whether the plaintiff is entitled for possession of suit site from defendant No.2?
5. To what decree or order?
Additional issues:
1. Whether the plaintiff proves that the suit property in occupation of defendants 3, 4 and 5 is the suit site No.29?
2. Whether the defendant No.5 proves that the suit schedule property is site No.47?
3. Whether the defendant No.5 proves that she is the daughter of defendant No.2?12
4. Whether the suit against defendants 3, 4 and 5 is not maintainable as the suit stands abated against defendant No.2 Smt.Chinnamma?
5. Whether the plaintiffs are entitled for relief sought?
10. The plaintiff in order to prove his case examined two witnesses as P.W.1 and P.W.2 and got marked the documents at Exs.P.1 to 13. The defendants have also examined three witnesses as D.W.1 to D.W.3 and got marked the documents at Exs.D.1 to 14. The Court Commissioner is examined as C.W.1 and got marked the documents at Exs.C.1 to 18(b). The Trial Court after considering both oral and documentary evidence placed on record answered issue No.1 and additional issue No.1 as affirmative and answered issue Nos.2 and 3 as negative and answered issue No.4 as affirmative coming to the conclusion that the plaintiff is entitled for possession of suit site from defendant No.2. The Trial Court did not accept the defence of defendant Nos.2 and 3 and answered additional issues No.2 as negative and held that issue No.3 is not relevant to this suit and answered additional issue No.4 as negative.
13
11. Being aggrieved by the judgment and decree of the Trial Court, the present appeal is filed by the appellants. The appellants in the appeal mainly contend that the Court below committed an error in accepting the plaint. The frame of the suit was bad. The plaintiff ought to have sought for the relief of declaration of title and for consequential reliefs. In order to avoid the payment of Court fee, the prayer has been made in the form in which it is now made by the plaintiff and the Court ignoring this aspect of the matter has granted a decree as sought for. Hence, the judgment and decree of the Trial Court is illegal. It is contended that the Trial Court has committed an error of law in accepting the evidence of C.W.1 Commissioner, who has been thoroughly cross-examined and who has given evidence contradictory to Ex.C.18(a) prepared by himself at the spot, which in the first instance he did not produce and which was produced later by him. The Trial Court has erred in granting a decree stating that the sale deed in favour of defendant No.2 by defendant No.1 is not justified and it is of no consequence in respect of the plaintiff's ownership over the plaint schedule site. Such a type of decree could not have been granted by the Trial Court at all in the absence of a prayer for declaration of title. It 14 is contended that Ex.C.18 and Ex.C.18(b), if carefully seen only indicate that the Commissioner has re-produced the boundaries mentioned in Ex.P.1 and other sale deeds including Ex.D.7. That cannot be a basis to grant decree in favour of the plaintiff.
12. It is further contended that Ex.P.2 index of lands completely indicates that the entry has been scored and the name of Sri Rama Rao has been inserted by scoring of the name of Shamaiah S/o Konda Ramaiah. Nobody has attested the correction of that entry. Therefore, reliance could not have been placed on Ex.P.2. The same is the case with Ex.P.3 where the entry has been scored of and the name of Sri D.Rama Rao has been inserted. Therefore, the Trial Court could not have relied upon Ex.P.2 and Ex.P.3. It is also contended that admittedly Sy.No.10/4 where the property in question is situated has been acquired by the BDA and there has been no re-conveyance and no allotment. Therefore, the plaintiff could not have maintained a suit for possession of a property not belonging to him, as the entire survey number has been acquired. The Trial Court has ignored this circumstance. It is contended that defendant No.2 was in possession and now defendant No.5 is in possession through her tenants. If that is the case, there could not have 15 been a decree for possession in favour of the plaintiff who has no title admittedly. The entire survey number has been acquired by the BDA and this is clear from Ex.D.12. The title vests with the BDA and therefore there could not have been a decree in favour of the plaintiff granting possession. It is contended that Ex.D.1 dated 24.07.1984 is a document signed by the plaintiff himself and it has been admitted by him. The plaintiff has produced this document and he did not mark the document in evidence and the same was confronted to P.W.1 and he admitted that signature on this document. From Ex.D.1 it is clear that the plaintiff had never seen any site, which he claims to have purchased under Ex.P.1 or any other site. He has stated in Ex.D.1 that he was not in a position to locate his site. That means Ex.P.8 sketch was not in existence on 24.07.1984 and it has been created subsequently for the purposes of this case. The reliance placed on the evidence of the Commissioner is not correct and the Commissioner's evidence and the documents produced by the Commissioner completely indicate that his evidence is not credit worthy. The Commissioner wanted to suppress the sketch prepared by him at the spot from the neighbouring owners of the plots in question. The sketch 16 prepared at the spot completely indicates that what was claimed by the plaintiff in the plaint is not the one, which is in possession of the appellants. The Commissioner is an interested witness for the reason that he goes to the office of the Sub-Registrar and obtains the certified copies of the documents during the course of cross-examination and produced the same before the Court.
13. The learned counsel in support of his arguments mainly contends that there is no prayer for declaration and without a prayer for declaration seeking for title, the plaintiffs cannot maintain a suit for the relief of possession. Both claims right in respect of Sy.No.10/4. The defendants claim in respect of site No.47 and the plaintiff claims site No.29. When the plaintiff seeks the relief of possession, the burden is on the plaintiff to prove that the defendant is in possession of site No.29. The findings given by the Trial Court that the BDA is not a party and the documents placed before the Court are registered documents and though the Court Commissioner visited the spot, the sketch prepared by him is seriously disputed. The admission of the Commissioner takes away the case of the plaintiff. First of all, there is no identification of the property and the Court Commissioner was won over by the 17 plaintiff. The Trial Court has not given any findings on the admission given by the Court Commissioner. Ex.P.8 is not an approved plan and the same cannot be relied upon. The appellants have constructed the building and let out the same. The learned counsel would contend that the suit was filed in the year 1985 and impleading application was filed before the Trial Court on 18.02.2002. Section 21 of the Limitation Act is attracted and after 17 years, defendant No.5 was added and the suit against defendant No.5 is barred under law. The findings given by the Trial Court while answering additional issue No.4 is erroneous and the plaintiff ought to have made the father as defendant since claim is in respect of property No.10/4. The plaintiff also admitted the acquisition made by the BDA and also requested to regularize vide letter dated 26.05.1980 in terms of Ex.P.7. When the suit was not maintainable as BDA acquired the property, the Trial Court ought to have dismissed the suit and answering the issues that the suit is maintainable is erroneous. The appellants have constructed the house and also running the flourmill and there are serious legal infirmities and hence the relief ought not to have been granted. The Trial Court has committed an error in directing defendant Nos.1 and 2 to deliver 18 the possession. The decree cannot be granted against the tenants except seeking the relief of ejectment.
14. P.W.1 in the cross-examination admitted the construction. But in the year 1984 he was not able to locate. The complaint was given in terms of Ex.D.1. The learned counsel would contend that when I.A.No.13 was filed before the Trial Court for impleading, it is contended that he was only a rent collector and not the legal heir and the Trial Court also not enquired under Order 22 Rule 5 of CPC. The evidence of P.W.2 also does not help the identification of the location. In the cross- examination of D.W.1, nothing is elicited and the documents are produced, which are undisputed documents. In the cross- examination of D.W.2, nothing is elicited. D.W.3 is the tenant.
15. The Commissioner, who has been examined as C.W.1 relies upon the rough sketch and he has not prepared the same and the Commissioner mainly relied upon Ex.P.8. The plaintiff has not proved his burden. The Trial Court ought to have answered issue No.5 against the plaintiff regarding location is concerned and ought not to have granted the relief of possession unless they have sought the relief of declaration and 19 possession. The Commissioner's sketch is replica of Ex.P.8 and Ex.P.8 is seriously disputed and it is not the plan approved by any authority. The possession is sought without the relief of declaration and hence the same is not sustainable in the eye of law. The judgment of the Trial Court is nothing but legal infirmity and hence it requires interference of this Court.
16. The learned counsel for the appellants would vehemently contend that the respondents have filed I.A.Nos.1/2013, 2/2013 and 3/2013 before this Court and I.A.No.4/2013 is also filed to set aside the order in order to technically cure the same and these I.A.s cannot be entertained before this Court. Instead of filing the application for bringing the legal representatives before the Trial Court, an application is filed under Order 1 Rule 10 of CPC and defendant No.5 was not brought on record as legal representative but was brought on record as rent collector. Now after realization, all these applications are filed to treat defendant No.5 as the legal heir of defendant No.2. The Trial Court also committed an error in not answering the issues involved between the parties whether defendant No.5 was the legal heir of defendant No.2 or not but 20 erroneously mentions that consideration of that issue does not arise.
17. The learned counsel for the appellants in support of his arguments relied upon the judgment of the High Court of Chhattisgarh at Bilaspur in the case of MADHOW SAO v.
RAMBHA DEVI AND OTHERS reported in MANU/CG/0403/2012 = AIR 2012 CHH 485 and brought to the notice of this Court paragraph No.13 of the judgment wherein judgment of the Apex Court in the case of Balwant Singh (dead) v. Jagdish Singh and others reported in (2010) 8 SCC 685, is discussed with regard to liberal construction of the expression "sufficient cause" is intended to advance substantial justice which itself presupposes no negligence or inaction on the part of the applicant, to whom want of bonafide is imputable. The expression "sufficient cause"
implies the presence of legal and adequate reasons.
18. The learned counsel also relied upon the judgment of the Apex Court in the case of LANKA VENKATESWARLU (D) BY LRS. v. STATE OF A.P. AND OTHERS reported in MANU/SC/0153/2011 = AIR 2011 SC 1199 and brought to 21 the notice of this Court paragraph No.22 of the judgment with regard to the concepts of liberal approach and reasonableness in exercise of the discretion by the Courts in condoning delay, wherein also relied upon the judgment of the Supreme Court in the case of Balwant Singh (supra).
19. The learned counsel also relied upon the judgment of the Apex Court in the case of BALWANT SINGH (DEAD) v.
JAGDISH SINGH AND OTHERS reported in MANU/SC/0487/2010 = AIR 2010 SC 3043. This judgment was also relied upon in the earlier two judgments wherein discussed with regard to liberal approach in paragraph Nos.6 and 10 of the judgment.
20. The learned counsel also relied upon the judgment of this Court in the case of T. RAJU SETTY v. BANK OF BARODA reported in MANU/KA/0013/1992 = AIR 1992 KANT 108, wherein it is discussed with regard to in case where creditor chooses to proceed against principal debtor and sureties jointly and severally and suit abates against principal debtor, suit cannot be decreed against sureties.
22
21. The learned counsel also relied upon the judgment of the High Court of Orissa in the case of BADAN PRASAD JASWAL v. BIRA KHAMARI AND OTHERS reported in MANU/OR/0010/1990 = AIR 1990 ORI 32, wherein it is held that the procedure adopted by the Commissioner was invalid since fixed points in survey operations were paramount fixtures and no measurements were taken from fixed points nor from any permanent structures. It is further held that the survey should not have been made by chain method but should have been made by other suitable method for the purpose. In no conditions the Commissioner should have set up imaginary points with reference to the map by which process there cannot be any guarantee of the accuracy of the measurement.
22. The learned counsel also relied upon the judgment of the Apex Court in the case of CUSTODIAN OF BRANCHES OF BANCO NATIONAL ULTRAMARINO v. NALINI BAI NAIQUE reported in MANU/SC/0149/1989 = AIR 1989 SC 1589 and brought to the notice of this Court paragraph No.4 with regard to "legal representative" as defined in Civil Procedure Code which was admittedly applicable to the proceedings in the suit, means a person who in law represents the estate of a deceased person, 23 and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. The definition is inclusive in character and its scope is wide, it is not confined to legal heirs only instead it stipulates a person who may or may not be heir, competent to inherit the property of the deceased but he should represent the estate of the deceased person. It includes heirs as well as persons who represent the estate ever without title either as executors or administrators in possession of the estate of the deceased.
23. The learned counsel also relied upon the judgment of the Apex Court in the case of BALRAM AND OTHERS v. III ADDITIONAL DISTRICT JUDGE AND OTHERS reported in MANU/SC/0283/1983 = AIR 1983 SC 1137, wherein the Apex Court discussed with regard to Article 120 and 121 of the Limitation Act and held that under CPC when death occurs, at an appellate stage, substitution is effected in accordance with procedure laid down in Order 22. Article 120 of First Schedule of Act provides that an application under CPC to have legal representatives of deceased appellant made a party has to be 24 made within 90 days from date of death of appellant and Article 121 of Act provides 60 days' period for application for an order to set aside the abatement from date of abatement.
24. The learned counsel also relied upon the judgment of this Court in the case of GURUBASAPPA SIDDAPPA KAMPLI AND OTHERS v. NAGENDRAPPA VEERABHADRAPPA ANGADI reported in MANU/KA/0176/1984 = AIR 1984 KANT 1, wherein this Court held that an application has to be filed under Order XXII Rule 4(4) of CPC and further held that sub-rule (4) to Rule 4 Order XXII of CPC makes it very clear that application shall be made before that Court where the proceedings are pending at the time of the death of the concerned defendant.
25. The learned counsel relied upon the judgment of the Apex Court in the case of RAMESHWAR PRASAD AND OTHERS v. SHYAM BEHARILAL JAGANNATH AND OTHERS reported in MANU/SC/0203/1963 = AIR 1963 SC 1901 and brought to the notice of this Court paragraph No.18 of the judgment wherein discussion is made with regard to Order XLI 25 Rule 33 and in paragraph No.21 with regard to bringing the legal representatives on record.
26. The learned counsel relied upon the judgment of the Apex Court in the case of UNION OF INDIA v. RAM CHARAN AND OTHERS reported in MANU/SC/0238/1963 = AIR 1964 SC 215 and brought to the notice of this Court paragraph Nos.9, 11 and 17 wherein discussion was made with regard to limitation for application to set aside the abatement stated from the date of death and not from the date of appellant's knowledge of death.
27. The learned counsel also relied upon the judgment of the Calcutta High Court in the case of KEDARNATH KANORIA AND OTHERS v. KHAITAN SONS AND CO. reported in MANU/WB/0102/1959 = AIR 1959 CAL 368, wherein it is held that the suit having been abated there is no suit which can be continued and as such assignee cannot apply under Order 22 Rule 10 after suit has abated.
28. The learned counsel also relied upon the judgment of the Patna High Court in the case of GLADYS COUTTS v.
DHARKHAN SINGH AND OTHERS reported in 26 MANU/BH/0093/1956 = AIR 1956 PAT 373, wherein it is observed that whether application for setting aside abatement and substituting heirs of Gudar Singh should be dealt with by this Court in this second appeal or decree of Court of appeal below should be set aside on ground that it was passed in respect of a dead person and appeal should be remanded to Court of appeal below in order to deal with application for setting aside abatement and substitution heirs of Gudar Singh.
29. The learned counsel also relied upon the judgment of the Apex Court in the case of N. JAYARAM REDDI AND ANOTHER v. THE REVENUE DIVISIONAL OFFICER AND LAND ACQUISTION OFFICER, KURNOOL reported in AIR 1979 SC 1393 and brought to the notice of this Court paragraph No.10 of the judgment regarding bringing legal representative of the deceased and so also paragraph Nos.13 and 27 wherein it is observed that the basic principle underlying Order 22 Rules 3 and 4 which on account of the provision contained in Order 22 Rule 11 apply to appeals.
30. The learned counsel also relied upon the judgment of the Apex Court in the case of LANKA VENKATESWARLU (D) 27 BY LRS v. STATE OF A.P. AND OTHERS reported in AIR 2011 SC 1199 wherein the Apex Court discussed with regard to the discretion has to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections cannot and should not form the basis of exercising discretionary powers. The concepts such as "liberal approach", "justice-oriented approach"," substantial justice" cannot be employed to jettison the substantial law of limitation. Especially, in cases where the Court concludes that there is no justification for the delay.
31. The learned counsel referring these judgments would contend that these applications are filed belatedly and hence they cannot be allowed. The learned counsel would contend that the judgment and decree of the Trial Court is liable to be set aside.
32. Per contra, the learned counsel for the respondents in his arguments would vehemently contend that I.A.Nos.1/2013, 2/2013 and 3/2013 are only formal applications filed before this Court treating defendant No.5 as the legal representative of defendant No.2 and I.A.No.4/2013 is filed to set aside the order only to technically cure the same and 28 mistake was committed by the Trial Court in passing an order as abated. The learned counsel would contend that interlocutory application was filed under Order 1 Rule 10 of CPC before the Trial Court and the same was allowed and defendant No.1 contested the matter. Defendant Nos.3 and 4 are the tenants. The learned counsel brought to the notice of this Court Section 2(11) that legal representative includes intermeddlers. The learned counsel brought to the notice of this Court Section 108(n) of the Transfer of Property Act and would contend that this provision enables the correct procedure by filing a formal application before the Court.
33. The plaintiff in the suit has categorically contended that he purchased the property on 14.12.1961 from one Narasinga Rao and dispute is with regard to site No.29 and site No.47. The defendants have not filed any memo before the Trial Court that defendant No.2 left the daughter. However, an application was filed in the year 1995 itself and no details are given before the Trial Court that she is the legal representative except stating by defendant Nos.3 and 4 that she is the legal representative, but no details are given. The learned counsel would contend that defendant No.5 contested the suit as legal 29 representative only by filing the written statement, but the plaintiff was under the impression that she was rent collector and no prejudice is caused to the appellants herein even though she was not brought on record as legal representative but she was brought on record and she has contested the matter. Hence, the learned counsel would contend that I.A.s are to be allowed as formality and the plaintiff never avoided defendant No.5 and filed application under Order 1 Rule 10 of CPC. The defendants have not disclosed that she was the daughter of Chinnamma, but defendant Nos.3 and 4 are brought on record as tenants. There is no abatement as contended by the learned counsel for the appellants. The learned counsel would contend that there cannot be any technicality and technicality cannot be a ground to set aside the judgment and decree and no prejudice is caused to the appellants. I.A.No.1/2005 is filed for mesne profits and the same will not change the nature of the suit and hence I.A.No.1/2005 also to be allowed. The learned counsel would contend that there was an order on 27.06.2005 to deposit the rent, but rents are not deposited. Only initially an amount of Rs.50,500/- was deposited and thereafter rents are not deposited.
30
34. The learned counsel would vehemently contend that on merits also the original owner Sri Narasinga Rao executed the sale deed in favour of the plaintiff and there is no dispute with regard to the execution of the sale deed. Site No.29 is purchased by the plaintiff and the defendants claims site No.47. The Court has to look into documentary evidence and Ex.P.1 boundaries are specific and in the sale deed dated 14.12.1961, the boundaries are specifically mentioned and in terms of sale deed dated 18.11.1971 i.e., Ex.P.4, while selling the property Kempaiah clearly shown the boundaries as site No.28 and on the side of north site No.30. The Court Commissioner report corroborates the boundaries and the four sale deeds put together confirms the boundaries of the plaintiff. The defendants relies upon the sale deed dated 19.12.1974, which is marked as Ex.D.7. Exs.P.9, 10, 11 and 13 is in respect of site No.15 and all these sale deeds has to be considered together for identity of the property. The learned counsel would contend that memo of instructions was given on 18.10.2000 and 15.09.2000 and memo of instructions are filed by the appellants and the Commissioner also relied upon the documents Exs.C.1 to 4 and other documentary evidence and the Commissioner is well 31 versed with survey and he is a technical person. He has given factual information to the Court and Ex.C.18 is the sketch. The Commissioner located the property. Exs.D.1 and 2 discloses that building was constructed and they are running the mill. The memo of instructions is complied by the Commissioner. The defendant has not contended that he was in adverse possession and no delay in filing the suit. The sale deed supports the case of the plaintiff's title and hence entitled for declaration and possession. The plaintiff is also entitled for mesne profits since he is in unauthorized occupation.
35. The other contention of the learned counsel for the appellants is that the property was acquired by BDA and possession was not taken by CITB or BDA and possession continued with the plaintiff and the defendants also claims possession and land acquisition proceedings has not been completed and no documents are produced regarding acquisition is concerned. There was a notification and the same is only a preliminary notification and acquisition is not proved and hence the contention that the suit is not maintainable cannot be accepted. The burden is on the defendants to prove that the property was acquired. The learned counsel would contend that 32 specific prayer regarding damages was missing and hence I.A. is filed and it will not alter the nature of the suit. The appellants have not slept over and they are diligently prosecuting the matter.
36. The learned counsel for the respondents in his argument relied upon the judgment of the Apex Court in the case of BHAGWAN SWAROOP AND OTHERS v. MOOL CHAND AND OTHERS reported in AIR 1983 SC 355 and brought to the notice of this Court paragraph Nos.4, 5, 6, 12, 13 and 14 wherein discussed with regard to legal representative can be brought on record under Order 1 Rule 10 of CPC.
37. The learned counsel also relied upon the judgment of the Apex Court in the case of BANWARI LAL (D) BY LRS. AND ANOTHER v. BALBIR SINGH reported in AIR 2015 SC 3573 and brought to the notice of this Court paragraph Nos.9, 10 and 12 wherein the Apex Court also discussed with regard to the necessary applications were filed to bring on record the legal representatives of the appellants and even treated the application filed under Order 1 Rule 10 of CPC as an application under Order XXII Rule 3 of CPC.
33
38. The learned counsel also relied upon the judgment of the Apex Court in the case of PANKAJBHAI RAMESHBHAI ZALAVADIYA v. JETHABHAI KALABHAI ZALAVADIYA (D) AND OTHERS reported in (2017) 9 SCC 700 and brought to the notice of this Court filing the application under Order 1 Rule 10 of CPC and Order 22 and first application under 22 Rule 4 dismissed without adjudication on merits, subsequent application under Order 1 Rule 10 not barred by res judicata. The inclusion of deceased defendant No.7 in suit was through a bonafide mistake. The plaintiff's subsequent application under Order 1 Rule 10 for substitution of LRs of defendant No.7 deserves to be allowed, subject to law of limitation as contemplated under Section 21 of the Limitation Act.
39. The learned counsel also relied upon the judgment of the Apex Court in the case of CUSTODIAN OF BRANCHES OF BANCO NATIONAL ULTRAMARINO v. NALINI BAI NAIQUE reported in AIR 1989 SC 1589 and brought to the notice of this Court paragraph Nos.4 and 6 wherein discussed with regard to abatement of suit and bringing legal representatives, scope, includes persons who are not legal heirs but represent estate of deceased.
34
40. The learned counsel also relied upon the judgment of the Apex Court in the case of CHIRANJILAL SHRILAL GOENKA (DECEASED) THROUGH LRS v. JASJIT SINGH AND OTHERS reported in (1993) 2 SCC 507 and brought to the notice of this Court paragraph Nos.7, 9, 10 and 11 wherein also discussed with regard to the scope and meaning of the legal representative.
41. The learned counsel also relied upon the judgment of the Apex Court in the case of PERUMON BHAGVATHY DEVASWOM PERINADU VILLAGE v. BHARGAVI AMMA (DEAD) BY LRS. AND OTHERS reported in 2008 AIR ACW 6025 and brought to the notice of this Court the provision of Order 22 Rule 9, abatement of suit and setting aside of abatement, what are the considerations regarding the words "sufficient cause" in Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bonafide, deliberate inaction or negligence on the part of the appellant and delay also has to be condoned and delay of 12 years condoned when the delay is satisfactorily explained and abatement is liable to be set aside.
35
42. The learned counsel also relied upon the judgment of this Court in the case of VISHNUMOORTHI BHAGWATHA AND ANOTHER v. RUDRA SHEDTHI AND ANOTHER reported in AIR 1974 KAR 41, wherein it is held that death of one of the defendants, right to sue against surviving defendants is the duty of the Court.
43. The learned counsel also relied upon the judgment of the Apex Court in the case of JAI JAI RAM MANOHAR LAL v.
NATIONAL BUILDING MATERIAL SUPPLY, GURGAON reported in AIR 1969 SC 1267 regarding rules of procedures and brought to the notice of this Court paragraph No.6 wherein discussed with regard to Limitation Act and no question of limitation arises and plaint must be deemed on such amendment to have been instituted in the name of the real plaintiff, on the date on which it was originally instituted.
44. The learned counsel also relied upon the judgment of the Apex Court in the case of KUNJU KESAVAN v. M.M.PHILIP AND OTHERS reported in AIR 1964 SC 164 regarding pleading wherein discussed with regard to Order 6 Rule 2 and both parties understanding what the issue in the case was. Absence of issue 36 held did not lead to mis-trial sufficient to vitiate decision. The learned counsel also brought to the notice of this Court paragraph No.17 wherein it is observed that plea was hardly needed in view of the fact that the plaintiff made plea in the replication.
45. The learned counsel also relied upon the judgment of the Apex Court in the case of BHAGWATI PRASAD v. CHANDRAMAUL reported in AIR 1966 SC 735 and brought to the notice of this Court paragraph Nos.9, 10, and 15 wherein also the Apex Court observed that it is necessary to bear in mind the other principle that considerations of form cannot over-ride the legitimate considerations of substance. If a plea is not specifically made and yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence.
46. The learned counsel also relied upon the judgment of the Apex Court in the case of BACHHAJ NAHAR v. NILIMA MANDAL AND OTHERS reported in AIR 2009 SC 1103 and 37 brought to the notice of this Court paragraph Nos.9 to 13 wherein the Apex Court discussed Order 6 Rule 1 of CPC, pleadings, objects and purpose, case not specifically pleaded, when can be considered by the Court. The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. The Court is enabled to determine what is on issue between the parties.
47. The learned counsel also relied upon the judgment of the Apex Court in the case of RAMESH KUMAR v. KESHO RAM reported in AIR 1992 SC 700 and brought to the notice of this Court paragraph Nos.4 and 6 wherein it is observed with regard to Order 6 Rule 2 of CPC and bonafide requirement, plea accepted in revision on basis of subsequent events.
48. The learned counsel also relied upon the judgment of this Court in the case of RANGAPPA v. JAYAMMA reported in ILR 1987 KAR 2889 and brought to the notice of this Court paragraph Nos.7 and 8. This Court has held that the Court to look into substance of claim in determining nature of relief. Such relief to be based on same cause of action, not inconsistent 38 with plaint claim, not occasioning prejudice or embarrassment to other side, not barred by time on date of presentation of plaint and plaint amended in case of larger relief.
49. The learned counsel also relied upon the judgment of this Court in the case of DEMANAGOUDA AND ANOTHER v. SMT. RANAWWA AND OTHERS reported in ILR 1999 KAR 222 and brought to the notice of this Court paragraph Nos.5 and 6 wherein it is observed whether the Court was justified in granting relief of possession in the absence of pleading. Even by way of amendment during pendency of the suit in Trial or First Appellate Court, the Courts have power to grant such reliefs not withstanding the absence of pleadings.
50. The learned counsel also relied upon the judgment of the Apex Court in the case of PANNA LAL v. STATE OF BOMBAY reported in AIR 1963 SC 1516 and brought to the notice of this Court paragraph Nos.12 and 14 with regard to the power of appellate Court and held that it empowers the Appellate Court not only to give or refuse relief to the appellant by allowing or dismissing the appeal but also to give such other relief to any of the respondents as the case may require. 39
51. The learned counsel also relied upon the judgment of this Court in the case of SPECIAL LAND ACQUISITION OFFICER v. BALAPPA AND OTHERS reported in ILR 2002 KAR 3880 and brought to the notice of this Court paragraph Nos.22 and 26 wherein it is discussed with regard to scope and power under Order 41 Rule 33 of CPC.
52. The learned counsel also relied upon the judgment of the Apex Court in the case of SOPANRAO AND ANOTHER v. SYED MEHMOOD AND OTHERS reported in AIR 2019 SC 3113 with regard to the limitation for filing the suit for declaration and possession and brought to the notice of this Court paragraph No.9 wherein discussed that the limitation for filing a suit for declaration on the basis of title is 12 years and, therefore, the suit is within limitation. Merely because one of the reliefs sought is of declaration that will not mean that the outer limitation of 12 years is lost. The possession of the defendants over the suit property became adverse in the year 1978 and the suit was filed in the year 1987 not barred by limitation.
40
53. The learned counsel also relied upon the judgment of the Apex Court in the case of C. NATARAJAN v. ASHIM BAI AND ANOTHER reported in AIR 2008 SC 363 and brought to then notice of this Court paragraph No.13 wherein also discussed with regard to Articles 64 and 65 of the Limitation Act 1963 and burden would be on the defendant to prove that he has acquired title by adverse possession.
54. The learned counsel also relied upon the judgment of the Apex Court in the case of GURBAX SINGH v. KARTAR SINGH AND OTHERS reported in AIR 2002 SC 959 wherein it is held that the document which is executed earlier in time prevails over other executed document subsequently.
55. The learned counsel also relied upon the judgment of this Court in the case of VEERABADHRAPPA AND ANOTHER v. JAGADISHGOUDA AND OTHERS reported in ILR 2003 KAR 3042 and brought to the notice of this Court paragraph Nos.10 to 12, wherein this Court discussed with regard to Sections 47 and 48 of the Registration Act and held that sale deeds having been duly registered irrespective of the date of registration, relate back to the date of this execution and any 41 subsequent sale deed executed by the same vendors in regard to the same lands on 07.06.1990 will not convey any title of the subsequent purchasers.
56. The learned counsel referring all these judgments would vehemently contend that the sale deed of the plaintiff is prior to the defendants and boundaries are also very clear and though he claims the ownership with regard to site No.47, he has to prove the same. The learned counsel relied upon several judgments with regard to bringing legal heirs on record and also it is only a formality and no injustice is caused and defendant No.5 has already contested the matter.
57. In reply to the arguments of the learned counsel for the respondents, the learned counsel for the appellants would contend that defendant No.5 gave evidence in 2002 itself and no explanation to make the application before the Trial Court and no such application was filed before the Trial Court and after lapse of 12 years, an application was filed before this Court. The learned counsel would contend that the order of the Trial Court cannot be recalled by this Court and such a prayer cannot be considered by this Court. The tenant cannot represent the 42 interest of the owner. The tenants were on record and it is contended that the rent collector was made as party and suit cannot be continued the moment the suit against defendant No.2 is abated. The judgments which have been referred by learned counsel for the respondents are not applicable to the case on hand where the defendant died prior to the suit and not the case of the dead person. The Perumon Bhagvathy case (supra) is also not applicable and acceptability and explanation also has to be considered by this Court. Want of diligence is required and the judgment relied upon by the respondents in the case of Bhagwati Prasad (supra) is also not applicable and judgment in the case of Balappa (supra) is with regard to Order 41 Rule 33 but only for inadvertently cannot be exercised. Hence, prayed this Court to allow the appeal and set aside the judgment and decree of the Trial Court.
58. Having heard the learned counsel for the appellants, the learned counsel for the respondents, the grounds urged in the appeal and also the principles laid down in the judgments referred supra, the following points arise for the consideration of this Court:
43
(i) Whether the respondents have made out a ground to allow the application filed under Section 5 of the Limitation Act, which is numbered as I.A.No.1/2013?
(ii) Whether the respondents have made out a ground to allow the application filed under Order XXII Rule 9 read with Section 151 of CPC to set aside the abatement, which is numbered as I.A.No.2/2013?
(iii) Whether the respondents have made out a ground to allow the application filed under Order 22 Rule 4 read with Section 151 of CPC to bring defendant No.5 on record as the legal representative of deceased defendant No.2, which is numbered as I.A.No.3/2013?
(iv) Whether the respondents have made out a ground to allow the application filed under Section 151 of CPC to pass necessary orders and the order of the Trial Court passed on 29.07.1997 deleting the name of defendant No.2 in the plaint be set aside and suitable orders be passed regarding abatement of the suit against defendant No.2, which is numbered as I.A.No.4/2013?
44
(v) Whether the respondents have made out a ground to allow the application filed under Order 6 Rule 17 read with Section 151 of CPC to pass necessary orders and permit them to include the prayer for damages for use and occupation in the plaint, which is numbered as I.A.No.1/2005?
(vi) Whether the appellants have made out a ground to set aside the judgment and decree of the Trial Court in granting the possession in favour of the plaintiff/respondents?
(vii) Whether the Trial Court has committed an error in answering issue No.1 and additional issue No.1 coming to the conclusion that the plaintiff has proved his legal title in respect of site No.29 and defendant Nos.3 to 5 are in occupation of site No.29?
(viii) Whether the Trial Court has committed an error in not answering additional No.3 that the same is not relevant to the suit?
(ix) What order?
Point Nos.(i) to (iv) and (viii):
59. The learned counsel for the respondents has filed these I.As. seeking the relief for the condonation of delay, 45 setting aside the abatement and bringing the legal representative of defendant No.2 as party to this appeal. The main contention of the respondents/plaintiffs is that the application is filed under Order 1 Rule 10 of CPC and defendant No.5 has been arraigned as rent collector and no details were furnished that she is the daughter of defendant No.2 except defendant Nos.3 and 4 stating that they were paying the rent to her. The learned counsel for the appellants would contend that she was brought on record only as rent collector and not as legal representative. It is not in dispute that the application is filed under Order 1 Rule 10 of CPC for bringing defendant No.5 as party and throughout denied the relationship between defendant No.5 and defendant No.2. But in this appeal admitted that she is the daughter of defendant No.2 and on enquiry came to know about the same. Defendant Nos.3 and 4 have filed the written statement after the death of defendant No.2 wherein they have stated that they are paying the rent to defendant No.5. It is important to note that the Trial Court though framed additional issue No.3 whether defendant No.5 proves that she is the daughter of defendant No.2, not given any finding and answered that the same is not relevant to the suit. The very approach of 46 the Trial Court is erroneous. When defendant No.5 in the written statement has pleaded that she is the legal heir of defendant No.2 and defendant Nos.3 and 4 also in their written statement have contended that they are paying the rent to her as she is the legal representative, the plaintiffs instead of filing an application for bringing her on record invoking Order 22 Rule 4 of CPC, filed an application under Order 1 Rule 10 of CPC. The principles laid down in the judgments referred supra by both the learned counsel with regard to meaning of legal representative, no doubt the Court has to give wider meaning with respect to the liberal construction and even including intermeddlers also includes in the meaning of legal representative and they need not necessarily be legal heirs, but persons who are having the interest in respect of deceased can also claim and come on record as party to the proceedings. It is important to note that the plaintiff has not brought defendant No.5 on record as legal representative of defendant No.2 and now made an application to set it right the same. The fact is that defendant No.5 was also brought on record, but as rent collector. When the Trial Court had framed additional issue No.3 whether defendant No.5 is the daughter of defendant No.2, it ought to have given the 47 finding since the defendants also examined the witnesses D.W.2 and D.W.3 apart from her evidence.
60. D.W.1 i.e., defendant No.5 in her evidence also relied upon the document of SSLC marks card, marriage invitation card, death ceremony card and the name refers to Lakshmi and her husband particularly in Ex.P.5(a) and 6(a). Apart from that, the witness D.W.3 categorically comes and gives the evidence that she is the daughter of her sister Chinnamma and in the cross-examination it is elicited that her husband name is Agadurappa and nothing is elicited in the evidence of D.W.3 to disbelieve the evidence of D.W.1. D.W.2 who took the premises from defendant No.2 in the year 1998 categorically deposes that Chinnamma expired six years back and Chinnamma is survived by her daughter Lakshmi W/o Agadurappa, who is defendant No.5. In the cross-examination of D.W.2 regarding relationship between Lakshmi and Chinnamma, nothing is elicited and instead of it, it is elicited that he is paying the rent to her daughter Lakshmi and she is staying in Ulsoor near Indiranagar. He categorically gives an answer that Lakshmi's father name is Muniswamappa and in order to disbelieve the evidence of D.W.1 to D.W.3 regarding she is the 48 legal representative, the plaintiffs have also not placed any record and instead of D.W.1 herself has produced that SSLC marks card, marriage invitation card and death ceremony card. When such material is available on record before the Court, the Trial Court ought not to have answered additional issue No.3 that the same is not relevant to the suit. When defendant No.5 and defendant Nos.3 and 4 have categorically pleaded and produced the documents ought to have answered when the parties have led the evidence before the Court in order to prove the same and the Trial Court has committed an error in not answering additional issue No.3 and material discloses that she is the daughter of Chinnamma and Muniswamappa.
61. Now coming to the other application filed before this Court, I have already pointed out that the appellants/plaintiffs have not filed the application under Order 22 Rule 4 of CPC and instead of an application is filed under Order 1 Rule 10 of CPC. There is no dispute that defendant No.5 was brought on record before the Trial Court and also defendant No.5 has contested before the Trial Court as she is the daughter of defendant No.2. No doubt, on perusal of the records of the Trial Court, the Trial Court passed an order abating the case against defendant No.2. 49 The learned counsel for the appellants also contended that the details of legal representative of defendant No.2 was not furnished before the Trial Court and hence they could not file appropriate application. The said contention cannot be accepted for the reason that D.W.1 herself tendered the documents of SSLC marks card, which is marked as Ex.D.3 and when specific pleadings are made in the written statement filed by defendant Nos.3 and 4 and defendant No.5 is claiming that she is the legal heir, ought to have made defendant No.5 as legal representative of defendant No.2. However, defendant No.2 contested the matter before the Trial Court. Now they have filed an application contending that for the formality the said application is filed. I have already pointed out that there is no dispute that an application is filed under Order 1 Rule 10 of CPC and so also in the present case filed the applications I.A.Nos.1/2003 to 3/2013 to bring her as legal heir and now they have admitted that she is the legal heir of defendant No.2. When defendant No.5 claimed that she is the legal heir and contested the matter, no doubt on technicality she was not made as legal representative of defendant No.2 but throughout in the case, she contested that she is the legal heir of defendant No.2. When such being the 50 case, the Court has to look into giving the relief of substantial relief and not on technicality as held by the judgments referred supra referred by both the counsel.
62. Whether the application is filed under Order 22 Rule 4 of CPC or under Order 1 Rule 10 of CPC is immaterial and the prayer made in the applications has to be looked into. No doubt, I.A.Nos.1/2013 to 3/2013 are filed for condonation of delay and setting aside the abatement since defendant No.2 was deleted before the Trial Court and now an application is filed to pass necessary orders for correcting the order of the Trial Court. I.A.No.4/2013 is also filed to avoid the technicality. When such being the facts and circumstances of the case, I am of the opinion that even though an application is filed under Order 1 Rule 10 of CPC, no prejudice is caused to defendant No.5 and she has already been made as party and contested the matter claiming that she is the legal representative of defendant No.2. Under the circumstances, I answer point Nos.(i) to (iv) and (viii) as affirmative in coming to the conclusion that the Trial Court has committed an error in not deciding the issue of she is the daughter of defendant No.2 and ought to have answered issue regarding her status since voluminous documents are produced 51 regarding her claim. Hence, all these points are answered in the affirmative allowing the applications and condoning the delay and so also setting aside the abatement since the suit has been abated against defendant No.2 without bringing the legal representatives on record in the capacity of the legal representative, but impleaded the daughter of defendant No.2 invoking Order 1 Rule 10 of CPC as rent collector. I have already pointed out that invoking of provision is immaterial and the plaintiff has not admitted before the Trial Court but admitted before this Court that defendant No.5 is the legal heir of defendant No.2. Hence, the applications filed belatedly before this Court i.e. I.A.Nos.1/2013 to 4/2013 are allowed on cost of Rs.2,000/- each.
Point No.(v):
63. The plaintiff/respondents have filed I.A.No.1/2005 praying this Court to amend the plaint seeking the relief of mesne profit as the defendants are in possession of the suit schedule property and this application is filed after thought in the year 2005 and the suit was disposed of in the year 2003 and the said application is also filed belatedly without assigning the proper reasons and the suit was filed before the Trial Court in 52 the year 1995. For a period of 18 years, no such application was filed before the Trial Court and almost after 20 years of filing the suit, the said application is filed and no proper reasons are assigned in the application and hence I do not find any reasons to allow the said application and hence I answer point No.(v) as negative.
Point Nos.(vi) and (vii):
64. Having considered the material available on record, the plaintiff seeks the relief of declaration to declare that the possession of the suit schedule site by defendant No.2 and the alleged subsequent sale, if any, in favour of defendant No.2 is illegal, unjustified and no right confers on defendant No.2 and no consequence insofar as the plaintiff's right of ownership and possession of the property and direct defendant Nos.1 and 2 to handover the possession as consequential relief to the main relief of declaration. The main contention of the plaintiffs is that the property was purchased by their father Sri D.Rama Rao bearing site No.29 measuring 40 x 60 in the private layout of sites formed by defendant No.1 in his land bearing Sy.No.10/4 of Katriguppe Village, Uttarahalli Hobli. The defendant No.1 executed the sale deed on 14.12.1961 for sale consideration of 53 Rs.1,000/- and he was put in possession in respect of site No.29.
The plaintiff has fenced the said property and also executed the power of attorney in favour of Vidya Peeta Co-operative Housing Society and it is also his case that in between 1980 to 1985 he was not in Bangalore and during the said period, the defendants encroached the property and put up the building and running a flour mill.
65. Per contra, defendant No.1 in the written statement admitted that the same was made in favour of plaintiff in the year 1961, but he does not remember the measurement of the site and number and he has not sold the plaintiff's site to defendant No.2. The defendant No.2 claims that the averments made in the plaint that his site number is 29 and the suit schedule property site No.29 is denied and also denied the very purchasing of the property and instead of it is claimed that her husband had purchased the property on 19.12.1974. The defendant No.2 is in possession of the said property from the date of purchase and thereafter constructed the building and let out to defendant Nos.3 and 4 and the tenants are in occupation of the premises. It is contended that the sale deed is executed by defendant No.1 in favour of husband of defendant No.2 in 54 respect of site No.47. It is contended that the plaintiff was never in possession of the suit schedule property. The defendant No.5 was also subsequently brought on record and she claimed that she is the daughter of defendant No.2 and reiterated the written statement filed by her mother i.e., defendant No.2 claiming right in respect of site No.47. The defendant No.2 died on 13.04.1995 leaving behind defendant No.5. The tenants have continued payment of rent in her favour. It is also contended that in view of the memo filed by the plaintiff before the Trial Court, an order was passed on 29.08.1997 for deleting the name of defendant No.2 and virtually the suit stand abated and contend that in the said format, the suit ought not to have been continued and also contended that an application is not filed under Order 22 Rule 4 of CPC and instead of it, I.A. is filed under Order 1 Rule 10 of CPC. It is contended that husband of defendant No.2 invested the money for construction and the property was purchased by her father and she claims that she is the owner of site No.47. In order to substantiate their contention, the plaintiffs examined one witness as P.W.1 and he reiterated the averments of the 55 plaint and he relied upon the document Exs.P.1 to 13. P.W.1 was subjected to cross-examination.
66. In the cross-examination, it is elicited that for the first time when he saw the site, there was a flour mill in the site and the said flour mill was run by defendant No.2 and her husband Muniswamappa. The suit site is bounded on east by road, west by site No.28 and on the other side site measuring 25 x 30 and adjoining sites were consisting of some house. He mainly relies upon Ex.P.8 for location of the suit site, but he does not know whether there is an approved plan of layout or not but Ex.P.8 is given by deceased defendant No.1 to his father. But it does not contain the signature of defendant No.1. It is suggested that he has concocted Exs.P.2 and 3 and the same was denied. Regarding acquisition of the property is concerned, he says that he do not know whether the notification is produced in this case or not. But Ex.P.7 is the copy of the application written by his father to the LAO regarding award notice dated 13.05.1980. He admits that in Ex.P.7 his father has written that he has received the notice to handover the suit site and also admits that after receiving Ex.P.7, they have not received any notice from BDA regarding regularization or re-conveyance. He 56 admits that in Ex.P.7 there is a reference to BDA notice dated 14.07.1976. But he does not know what is that notice. He also not enquired whether there is any orders passed by the BDA on the request made by his father in Ex.P.7 and also he has no documents to show that acquisition proceedings are dropped. He admits that he has not seen the original of Exs.P.9, 10 and
11. He does not know whether the boundaries of site No.24, 28 and 30 mentioned in Exs.P.9 to 11 are not similar in the layout. The properties are sold to some other persons and therefore the boundaries are not correct and he does not know who are the purchasers of site Nos.24, 28 and 30. Regarding electricity connection is concerned, he has not verified. It is his evidence that the original owner defendant No.1 created similar documents. But he has not tried to ascertain as to whether site No.47 belongs to Muniswamappa and he has encroached nearly five sites including the suit site. But he claims owners of five sites have taken action against Muniswamappa. After filing the written statement by defendant Nos.3 and 4, he has verified and came to know that the deceased defendant and her husband had no issue by name Lakshmi. It is elicited that in the year 1984 he himself and his father came to know that power was taken by 57 Muniswamappa to the flour mill, but he cannot say in whose name power was taken. But now he says in terms of Ex.D.2 defendant No.2 had taken the power. In Ex.D.2 site No.47 is mentioned and he does not know whether Muniswamappa or defendant No.2 has obtained the general licence for running the flour mill in respect of site No.47.
67. In support of his contentions he examined the witness P.W.2 Lakshman Rao and he speaks with regard to his brother M.R.Rama Rao had purchased Sy.No.15 of Katriguppa Sy.No.10/4 from Kapila Bai in the year 1971. His brother has given the general power of attorney to Subramanyam and he sold it to Saraswathi W/o Shivaram in the year 1987. Saraswathi Shivaram has constructed the house in the said site. Ex.P.13 sale deed is also got marked. He says that he has seen site No.14 in which his sister has purchased in the very same survey number and also seen the suit property which bears Sy.No.29 and the same is opposite to site No.16. The road is on the western side of their sites 14, 15 and 16. Site No.9 is situated on the backside of site No.15. He was subjected to cross-examination. In the cross-examination, he admits that he came to know about suit site 10 years back. He has also seen 58 Ex.P.8. The original Ex.P.13 is with owner Subramanya. Subramanya is residing in site No.15. When his brother had purchased the site, the owner of the site had given approved plan in respect of Sy.No.10/A to his brother. It is elicited that in layout, sites are not demarcated by limestone and numbers. P.W.1 has not shown him site No.29 but P.W.1 has shown him the plan and site No.29. The site in which the flour mill was run might be site No.47.
68. The Commissioner is examined as C.W.1 and in his evidence documents of 'C' series are marked i.e., Exs.C.1 to 18 i.e., his reports, sketch, xerox copies of sale deeds, copy of GPA, rough sketch, boundaries of suit property in terms of Ex.P.18(b). He was subjected to cross-examination. In the cross- examination, he says that he has been trained for six months in survey in the year 1996 and he is working as Assistant Director of Land Records. He made surveys in his service and conducted the spot inspection and prepared the plan and submitted the report. He admits that he has not located Sy.No.10 and 10/4 of Katriguppa Village. It is elicited that his report Exs.C.1 to 3 is depending on Ex.P.8 sketch and sale deeds. If Ex.P.8 does not tally with the actuals in the spot, then his report Exs.C.1 to 3 will 59 not be correct. It is suggested that he has not made any enquiries in the spot to locate and identify site No.29 and the same has been denied. It is elicited that his location of site No.47 in Ex.C.3 is based on plan Ex.P.8 and also based on the sale deed. The sale deed of site No.47 is at Ex.D.7. One Kamalamma has told him that the northern side of disputed site, there lies the site belonging to her bearing number No.46. The disputed site is bounded on north by site No.46 as per Ex.C.4. The site No.46 is bounded on the north by site No.45 as shown in Ex.D.5. In Ex.C.4 the southern boundary is shown as site No.47. He has prepared the sketch Ex.C.1 on the basis of the sale deed and Ex.P.8 plan. He has not seen all the sale deeds in respect of all sites shown in his sketch Ex.C.3. He has received six sale deeds from the Court. In Ex.P.8 there are 62 sites. In Ex.C.3 he has shown 53 sites. He has shown and given the location in Ex.C.3 on the basis of Ex.P.8. Ex.C.3 is prepared by him in the office. Exs.C.8 and 9 were given to him in his office. As he was the Court Commissioner he felt it bounden duty to receive the documents from the parties. He was supposed to disclose the fact of receiving any documents. He admits that his answer to the memo of instructions at item No.4 of plaintiff is 60 based on Ex.P.8 and not based on Ex.D.7. The boundaries mentioned in respect of site No.47 on the eastern side is more whereas the sketch Ex.C.3 discloses on the eastern side site No.48. In Ex.D.7 the western side boundary is remaining portion of site No.47. In the sketch Ex.C.3 he has shown the road on the western side. The eastern and western boundaries in respect of site No.47 in Ex.C.3 will not tally with the boundaries of site No.47 and eastern and western in Ex.D.7.
69. Having considered the evidence of the parties, it is clear that the defendants claim right in respect of site No.47. The plaintiffs claim site No.29, but vendors of both the sale deeds are one and the same i.e., defendant No.1. But defendant No.1 claims that he has not sold the property in favour of husband of defendant No.2, which was sold in favour of the plaintiff. No doubt, in the cross-examination of P.W.1, he categorically admits that when he saw the site for the first time, there was a flour mill in the said site. Having considered the evidence available before the Court, there is no dispute that in the said site flour mill is in existence. Now the dispute is whether it is site No.47 or site No.29. It has to be noted that the plaintiffs have produced Ex.P.8 plan. With the help of the 61 plan, they have located the suit site. Admittedly, the said plan does not contain the signature of the defendants as elicited. It is the specific case of the plaintiff that the suit site is surrounded by site Nos.24, 28 and 30 and in order to prove the said fact, relied upon document Exs.P.9 to 11. It is important to note that neighbouring site owner is examined as P.W.2 and got marked the document Ex.P.13 which is in respect of site No.15.
70. In the cross-examination of P.W.1 regarding surrounding location of the suit schedule property, he admits that he has no documents to show that the acquisition proceedings are dropped, but none of the parties have produced any documents regarding the suit schedule property was acquired by the BDA except receiving of the award notice dated 13.05.1980, which is admitted by P.W.1. The defendants have not placed any material before the Court for having the property was acquired. It is also the contention of the defendants that the property was acquired by BDA, but claims that they are in possession. P.W.1 admits that in Ex.D.1 his father has mentioned that it has become difficult to locate site No.29 and no doubt with regard to taking of electricity connection in respect of site No.47 there is an admission. But the dispute before the 62 Court is that whether it is site No.29 or site No.47. It is important to note that D.W.1 who claims that she is the legal heir of defendant No.2 in the cross-examination though she claims that she is the owner of site No.47 and suit schedule property is site No.47, it is claimed that the same was purchased in the year 1974 by her father. But in the cross-examination, it is elicited that she has got the documents to show that the suit property is bearing site No.47 and her father has got the layout plan, but she does not know where he kept the same. In order to substantiate that it is site No.47, the defendants have not placed any plan or any documents, but he is seriously disputing the document of site No.47. It is important to note that in the cross-examination she admits that she has seen site No.47 i.e., suit site, at the time when it was purchased by her father and for the last time she has seen site No.47 on 01.07.2002 when she had been to collect the rent. Hence, it is clear that she had seen it on 01.07.2002 and admits that the flour mill is 15 ft. x 30 ft. and office room is about 10 ft. x 15 ft. and other portion is consisting of necessary small construction for the purpose of building constructed by defendant Nos.4 and 2. The said two portions are constructed by her father. It is suggested that the 63 suit property is not site No.47, but it is site No.29 and the same was denied. It is the specific case of the plaintiff that Ex.D.7 was created by her father and the same was denied. It is emerged from the evidence of D.W.1 that she is not able to give any boundaries in respect of site No.47 and she is not having any plan. She claims that her father might have the layout plan but she does not know where her father had kept the said plan. Hence, it is clear that though she claims that site No.47 belongs to them, she is not able to give any details.
71. It is also elicited in paragraph No.9 of her cross- examination that she does not know whether the suit property is bounded on the north by site No.30, south by site No.24 and west by site No.28. The plaintiff relied upon the documents at Exs.P.9 to 11 in order to show the boundaries in respect of site No.29 i.e., site Nos.24, 23 and 28. It is important to note that in the cross-examination D.W.1 she categorically admits that she does not know who is the owner of the site opposite to the road and who is in possession and also how many sites are there in between the suit site and Katriguppa road. It is further elicited that she does not know whether the power is taken from KEB in site No.28 said to have been situated on the west of the property 64 in possession of defendant Nos.3 and 4. Hence, it is clear that on the west of the property in which the tenants are in possession site No.28 is in existence and also it is elicited that she has not made any enquiries to know the adjoining sites of site No.47 and to whom they belong. These answers are very clear with regard to though she claims she is the owner of site No.47, she has not made any enquires with regard to neighbours and also not able to give any boundaries of her site. A specific question was put to her that if she has produced the plan, it will reveal the suit property is site No.29 and not site No.47 and hence she has not produced the plan before the Court. In spite of the said suggestion was made to her, D.W.1 has not produced any documents in order to prove the location of site No.47. No doubt, the learned counsel for the appellants mainly contend that the Commissioner also relied upon Ex.P.8. No doubt, Ex.P.8 is not an authenticated document and the same is layout plan. But the defendants have also not placed any material to prove the location of site No.47. I have already pointed out that defendant No.1 is not able to give any answer with regard to surrounding location to site No.47, but categorically admits that she did not enquire into site No.28, which is on the western side 65 whether electricity connection was taken or not in which the tenants were in possession of the property. No doubt, the Commissioner also given the answer that based on Ex.P.8 and also sale deeds, he located the suit schedule property and also he admits that location of site No.47 in Ex.C.3 is based on the plan Ex.P.8 and also he categorically admits based on the sale deeds also. It is evident from the records that he also collected the sale deeds in respect of neighboring sites from the Sub- Registrar and hence the learned counsel for the appellants contend that the Commissioner exceeded his limit and shown interest in favour of the plaintiff and the said contention cannot be accepted when the dispute is in respect of site No.47 or site No.29. The Commissioner being the Assistant Director of Land Records, who is also a technical person can avail the documents from the Government office to resolve the dispute between the parties. No doubt, he admits that he does not know whether he had made note of the width of the road in his inspection note and also admits that Exs.C.8 and 9 were given to him in his office i.e., in respect of site Nos.16 and 17, certified copies of sale deeds and also gives the explanation that it was his bounden duty to receive the documents from the parties. The 66 learned counsel would vehemently contend that the boundaries mentioned in respect of site No.47 on the eastern side is road, whereas sketch in Ex.P.3 discloses on the eastern side of site No.48 and Ex.D.7 the western side boundary is remaining portion of site No.47. But the real culprit in the case on hand is defendant No.1. He did not give any evidence before the Court. But he admits the selling of the property in favour of plaintiff in the year 1961 itself. No doubt, the respective counsel have relied upon the judgments with regard to the title is concerned and when the boundary is mentioned and the document is executed, which goes back to the date of execution of the sale deed as held by this Court in the judgment referred supra and it is also settled law that when the earlier said deed was executed, the subsequent sale deed will not prevail. Hence, I answer point Nos.(vi) and (vii) as negative.
Point No.(ix):
72. In view of the discussions made above, I pass the following:
ORDER
(i) The appeal is dismissed.67
(ii) The applications i.e., I.A.Nos.1/2013 to 4/2013 filed by the respondents are allowed on cost of Rs.2,000/- each. The same is payable to the appellants forthwith.
(iii) The Registry is directed to transmit the TCR forthwith.
Sd/-
JUDGE MD