Karnataka High Court
Husain Khan S/O Hashimsab Diddi vs Jayanagar Co-Operative Housing ... on 26 April, 2018
Equivalent citations: 2018 AIR CC 3091 (KAR), 2018 (4) AKR 130 (2018) 3 ICC 285, (2018) 3 ICC 285
Author: John Michael Cunha
Bench: John Michael Cunha
RFA No.1557/2006
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 26TH DAY OF APRIL, 2018
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
REGULAR FIRST APPEAL No.1557/2006 (DEC)
BETWEEN:
HUSAIN KHAN
S/O HASHIMSAB DIDDI
SINCE DECEASED BY HIS LRS.
1. MEHAMOOB
S/O. HUSAIN KHAN DIDDI,
AGED ABOUT 49 YEARS
2. NOORAHMED
S/O.HUSAIN KHAN DIDDI
AGED ABOUT 45 YEARS
BOTH ARE R/AT DIDDI ONI
OLD HUBBALLI, HUBBALLI 580 024
DHARWAD DIST.
... APPELLANTS
(BY SRI. S. V. SHASTRY; RAVI HEGDE, ADVOCATES)
AND:
1. JAYANAGAR CO-OPERATIVE
HOUSING SOCIETY LIMITED
DIDDI ONI, OLD HUBBALLI
HUBBALLI, DHARWAD DIST.
REP. BY ITS SECRETARY
2. IMAMSAB MADARASAB KALAIGAR
AGE: MAJOR
RFA No.1557/2006
:2:
3. SMT. NOORJAHAN IMAMSAB KALAIGAR
AGE: MAJOR
4. MOHAMMADHANIF
S/O. ABDULRAHIMAN KARWAR
AGE MAJOR
5. MURTUZA
S/O. GOUSEMODIN SARGIRO
AGE MAJOR,
(DELETED AS PER COURT ORDER DATED 26.06.2013)
RESPONDENTS NO.2 TO 5 ARE
RESIDENTS OF HEGGERI
OLD HUBBALLI 580 024,
DHARWAD DIST.
6. REGISTRAR OF CO-OPERATIVE SOCIETIES
ALI ASKUR ROAD, BANGALURU.
... RESPONDENTS
(BY SRI.SANTOSH B. MANE, ADVOCATE FOR R2 & R3;
SRI. M. R. MULLA & AHAMED ALI RAHIMAN SHAH,
ADVOCATES FOR R4;
R4 - NOTICE DISPENSED WITH V/C/O. DTD. 28.01.2010;
R5 - DELETED V/C/O DTD. 26.06.2013;
VK FOR R1 CEASES SINCE R1 SOCIETY IS NOT IN
EXISTENCE V/C/O.20.06.2013;
MISS. AMARAVATHY H.R., HCGP FOR R6)
---
THIS RFA IS FILED UNDER ORDER 41 RULE 1 R/W. SEC.
96 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND
DECREE DT.14.7.2006 PASSED IN O.S.NO.99/98 ON THE FILE
OF THE PRL. CIVIL JUDGE (SR.DN), HUBBALLI, DISMISSING
THE SUIT FOR DECLARATION AND PERMANENT INJUNCTION
AND TO DECREE THE SUIT AS PRAYED FOR BY THE APPELLANTS
WITH COST THROUGHOUT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 22.02.2018, COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
RFA No.1557/2006
:3:
JUDGMENT
This first appeal arises out of the judgment and decree dated 14.07.2006 passed by the Principal Civil Judge (Sr.Dn.), Hubballi in O.S.No.99/1998, whereby the suit filed by the predecessor of the appellants has been dismissed with costs.
2. The facts leading to the appeal are that the suit schedule property comprised in R.S.No.46/1 of Krishnapur, Hubballi measuring 2 acres 2 guntas was owned by the original plaintiff Sri.Hussainkhan, S/o. Hashimsab Diddi. He agreed to sell the same to the original defendant No.1- Jayanagar Co-operative Housing Society Limited, Diddi Oni, Hubballi, for a total consideration of Rs.44,001/- on 22.11.1983 and later the said agreement was registered on 23.02.1984. The subsequent developments have given rise to a long drawn litigation between the parties, which needs a detailed narration in order to comprehend the controversy in this appeal.
RFA No.1557/2006:4:
3. The case pleaded by the plaintiff is that, in terms of the aforesaid agreement of sale dated 23.02.1984, entered into between him and the defendant No.1 (hereinafter referred to as the 'Society') the plaintiff received a consideration of Rs.42,601/-. The balance consideration of Rs.1,400/- was agreed to be paid at the time of execution of the sale deed. As per the terms of the said agreement, defendant No.1 Society was required to obtain necessary exemptions, conversions and permission etc., from the competent authorities for transfer of the suit schedule property. The plaintiff undertook to sign necessary applications and petitions for the said purpose. In this regard, he executed a power of attorney authorizing defendant No.1 to attend to the said formalities. In the plaint, it was averred that the balance sale consideration was agreed to be paid within one year from the date of the agreement (such term in fact does not find place in the agreement), but defendant No.1 failed to obtain necessary exemptions from the competent authorities and also failed to pay the balance consideration amount as agreed. Hence, the plaintiff was constrained to repudiate the RFA No.1557/2006 :5: transaction and took steps for revocation of power of attorney by way of paper publication in 'Samyuktha Karnataka' daily newspaper dated 25.12.1993.
4. The further case of the plaintiff is that, in the month of December 1993, defendant No.1 and its office bearers colluding with their henchmen indulged in high handed activities by putting huts and structures in the suit schedule property and hence the plaintiff was constrained to file a suit for injunction in O.S.No.2/1994. In the said suit, the Hon'ble Court held that the possession of the suit schedule property was with defendant No.1 and consequently the interim applications filed by the plaintiff for injunction came to be rejected. The appeal preferred by the plaintiff in M.A.No.8/1994 on the file of the Addl. Civil Judge(Sr.Dn.), Hubballi, also came to be dismissed confirming the orders of the lower Court. Hence, the plaintiff sought leave of the Court to file a fresh suit on the same cause of action. The leave was granted by the III Addl. Civil Juge(Jr.Dn.), Hubballi, by order dated 23.01.1998. Accordingly, the plaintiff presented the above suit (O.S.No.99/1998) for relief of declaration that the RFA No.1557/2006 :6: alleged possession of the suit property by defendant No.1 or any other persons claiming through defendant No.1 is illegal and contrary to the provisions of law. Further, the plaintiff sought for declaration that he is entitled to get vacant and actual possession of the suit schedule property by removing the illegal structures.
5. On service of notice, defendant Nos.1 to 3 and 5 entered appearance through their counsel. Defendant No.4 though duly served, remained absent. On behalf of defendant Nos.1 and 5, written statement was filed and the same was adopted by third defendant. Second defendant also filed a detailed written statement on his behalf.
6. The sum and substance of the written statement submitted by defendant No.2 is that the description of the suit property is uncertain, vague and improper; the plaintiff has sought for removal of illegal structures but the details of the houses, huts, sheds and garages situated in the suit lands are not described in the plaint. Since the suit schedule property consists of RFA No.1557/2006 :7: structures and buildings, the valuation of the suit treating it purely as agricultural land under Section 7(2) read with Section 24(a) of the Karnataka Court Fees and Suits Valuation Act is illegal and impermissible. The proper valuation of the suit far exceeds the pecuniary jurisdiction of the Court. Defendant Nos.2 and 3 have been allotted plot Nos.35 and 36. They have constructed residential houses and have paid taxes to HDMC. Therefore, these defendants are in lawful enjoyment of the said plots. Further, defendant No.2 pleaded that this written statement is filed in addition to the written statement of defendant Nos.1 and 5.
7. Defendant Nos.1 and 5 in their written statement conceded the averments made in the plaint that the suit schedule property was agreed to be sold by plaintiff to defendant No.1 for Rs.44,001/- on 22.11.1983 and subsequently, the said agreement was registered on 23.02.1984 and as per the terms and conditions of the said agreement, only a balance of Rs.1,400/- was to be paid to the plaintiff. The other averments made in the plaint were denied. Defendant Nos.1 and 5 put forth a plea RFA No.1557/2006 :8: that in terms of the above agreement, the Society was put in possession of the suit schedule property and it was the complete responsibility of the plaintiff to effect the survey and sub-division of the property, but the plaintiff failed to perform his part of obligations. The society tried its level best to get permission to convert the land for Non- agricultural purpose and necessary applications made in this regard are pending before the concerned authorities and hence, the plaintiff was not entitled to terminate the agreement unilaterally. Defendant No.5 further pleaded that he is a member of defendant No.1 society and he is in possession of a portion of the land.
8. It was further contended that in O.S.No.2/1994, permission was granted to the plaintiff to file a fresh suit on the same cause of action i.e., for permanent injunction, but, contrary to the said order, the plaintiff has filed the instant suit for declaration and possession of the suit property on a fresh cause of action different from the original cause of action in O.S.No.2/1994. Further, the said order was conditional on payment of cost of Rs.250/-. So far, the plaintiff has not RFA No.1557/2006 :9: paid the cost to defendant No.1 Society or deposited the same in the Court. Therefore, the present suit is not maintainable. The defendant No.5 further contended that he is in possession of the portion of the suit property for more than five years. The suit ought to have been filed within a period of three years from the date of agreement of sale dated 22.11.1983 and hence, the suit is barred by limitation under Article 58 of the Limitation Act. The Society has already approached the Deputy Commissioner, Dharwad seeking permission for converting the land for non-agricultural purposes. The plaintiff himself having written the said letter to the Secretary and City Improvement Department is not entitled to contend that defendant No.1 had not taken any steps to get the land converted for non-agricultural purposes. Further, defendant No.5 being the member of the Society has every right to claim the suit schedule property and thus defendant Nos.1 and 5 sought for dismissal of the suit.
9. Based on the above pleadings, the trial court framed the following issues:-
RFA No.1557/2006: 10 :
i. Whether the plaintiff proves that the possession of suit property by defendant No.1 is illegal?
ii. Whether the plaintiff is entitled for possession of the suit property from defendants?
iii. Whether the plaintiff is in filing this suit has complied with the court order in O.S.No.2/1994 reserving liberty to him/them to file a fresh suit?
iv. Whether the suit is within the period of limitation?
v. Whether the plaintiffs have paid proper court fee on the relief sought?
vi. What decree or order?
ADDITIONAL ISSUE i. Whether the suit is bad for non-joinder of necessary parties?
10. In support of the plaintiff's case, the plaintiff examined himself as PW-1 and produced in evidence 17 documents marked as Ex-P1 to Ex-P17. The registered agreement of sale dated 23.02.1984 was marked as Ex- P2. On behalf of the defendants, three witnesses were examined. One Syed Mohammed an employee of Railway RFA No.1557/2006 : 11 : department who is said to be the Chairman of the Society was examined as DW1. He was not tendered for cross- examination and his evidence was eschewed. DW-2 was subsequently referred to as DW-1 - Hazaratsab - the Chairman of the first defendant Society and DW-3 - Murthaza was one of the director of the first respondent Society and also defendant No.5 in the original suit. The defendants relied on 18 documents marked as Ex-D1 to D18.
11. On consideration of the above material, the trial Court answered issue Nos. 1, 2 and 3 in the negative and on issue No.4, the trial Court held that suit is barred by law of limitation and by answering additional issue No.1 in the affirmative, dismissed the suit.
12. Feeling aggrieved by the impugned judgment, the LRs of the original plaintiff have preferred this appeal questioning the correctness and legality of the findings recorded by the Court below. The appeal was earlier disposed of by a considered judgment dated 26.06.2013. However, the said judgment having been set aside by the RFA No.1557/2006 : 12 : Hon'ble Supreme Court in Civil Appeal No.10130/2014 (arising out of SLP(Civil) No.2498/2014), after remand, I have heard Sri. Ravi Hegde, learned counsel appearing for the appellants/plaintiffs, Sri. Santosh B. Mane, learned counsel appearing for respondents 2 and 3, Sri. M. R. Mulla, learned counsel appearing on behalf of respondent No.4 and Miss. Amaravathy H. R., learned HCGP appearing for respondent No.6.
13. (i) The learned counsel appearing for the plaintiff/appellants placing reliance on the decision of the Hon'ble Supreme Court in the case of Indira Vs. Arumugam reported in AIR 1998 (1) SCC 614, submitted that the plaintiff had instituted the suit based on title and possession. The possession of the suit schedule property was not delivered to the original defendant No.1. Once the title of the plaintiff is established on the basis of the relevant document and other evidence, unless the defendants were able to prove adverse possession for the prescriptive period, the plaintiff could not have been non- suited.
RFA No.1557/2006: 13 :
(ii) Further placing reliance on the decision of this Court in the case of Seshmull M. Shah Vs. Sayed Abdul Rashid reported in ILR 1991 KAR 2857, with reference to Para 7, the learned counsel argued that, where possession was claimed as a consequence of the title, the suit would be governed by Article 65 and not by Article 58 of the Limitation Act, as erroneously held by the trial Court.
(iii) Further, referring to the decision of the Hon'ble Supreme Court in the case of Laxmishankar Harishankar Bhatt Vs. Yashram Vasta reported in 1993 AIR(SC) 1587, would submit that the plea of non-joinder set up by the defendant No.4 was not tenable in the eye of law. First and foremost, defendant No.4 did not file any written statement opposing the claim of the plaintiff. Except contending that defendant Nos. 2 to 5 and other members of the Society were allotted various plots in the layout formed by the defendant No.1 in the suit schedule property, none of the defendants have produced either the allotment letters or the registered deeds of conveyance to establish their title and possession in respect of the suit schedule property. Hence, merely on the basis of the RFA No.1557/2006 : 14 : pleading set up by the contesting respondents, the trial Court ought not to have dismissed the suit on the ground of non-joinder of necessary parties.
(iv) Dilating on this point, the learned counsel has taken me through the pleadings of defendant No.2 and defendant No.5 and submitted that the case set up by defendants in this regard is too vague and general in character and hence the very formulation of issue by the trial Court was uncalled for on the basis of the vague and imprecise pleadings. Referring to para 13 of the judgment, the learned counsel submitted that a vague statement of this character would hardly be sufficient to non-suit the plaintiff on the ground of non-joinder of parties.
(v) Further, assailing the contention of the defendants that the suit was hit by the provisions of Order II Rule 2 of CPC, the learned counsel pointed out that the parties in O.S.No.2/1994 were different and said suit was one for bare injunction. The cause of action pleaded by the plaintiff therein was personal to the plaintiff and therefore, the ingredients of Order 2 Rule 2 of CPC are not RFA No.1557/2006 : 15 : applicable to the facts of the case. On this point, the learned counsel has referred to the decision in Col.R.Handa Vs. Abhaya Land and Finance Private Limited, Bangalore and Others reported in 2011 (2) KLJ 253 and would submit that defendant Nos. 2 to 5 do not have any semblance of right whatsoever in and over the suit schedule property. They are total strangers to the suit schedule property. They were arrayed as parties to the suit solely on the ground that at the relevant point of time they were either the Directors or the members of the Managing Committee of the defendant No.1 Society. Defendant No.5 is no more and the suit against him has been abated. Even the application filed by his legal heirs to come on record has been dismissed by this Court. Even in his evidence before the Court, DW2, namely the original defendant No.5 has unequivocally admitted that he was one of the Directors of the defendant No.1 Society and therefore, the right to sue did not enure to the legal heirs of defendant No.5. Hence, the contention urged by the defendants that the suit was hit by Order II Rule 2 cannot be accepted.
RFA No.1557/2006: 16 :
(vi) Further, the learned counsel would submit that defendant No.1 was a Society governed by the provisions of the Societies Registration Act. By virtue of Section 79(B) of the Land Reforms Act, 1961, defendant No.1 was not entitled to hold the suit schedule property or to hold the possession thereof. Therefore, the contentions urged by the defendants that they are entitled to hold on to the possession of the suit schedule property in part performance of the alleged agreement of sale is violative of the provisions of the Karnataka Land Reforms Act, 1961.
(vii) Lastly, he would submit that the trial Court has failed to consider all these facts and circumstances of this case. The trial Court has proceeded on the erroneous impression that the agreement dated 22.11.1983 was in existence and under the said agreement, the possession was delivered to defendant No.1. The said finding is contrary to the documentary evidence produced before the Court. In view of the subsequent agreement entered into between the original defendant Nos.1 and 2 dated 23.02.1984, the earlier agreement had lost its sanctity. The agreement dated 23.02.1984 was a registered RFA No.1557/2006 : 17 : agreement of sale. The parties were bound by the said agreement. The trial Court therefore has committed a serious error in tracing the possession of the defendant No.1 to the agreement of sale dated 22.11.1983, which was non-est in the eye of law. Therefore, dismissal of the suit based on the said reasoning cannot be sustained both on point of law and on the facts of the case. Thus he has sought for setting aside the impugned judgment and to allow the suit as prayed for.
14. Leading the argument on behalf of the defendants, Sri.M. R. Mulla, learned counsel appearing for respondent No.4 has raised three pronged contentions, namely;
(i) The suit is bad for non-joinder of necessary parties,
(ii) The suit is barred under Article 58 of the Limitation Act and,
(iii) The suit is hit by the provisions of Order 2 Rule 2 of CPC.
(i) Dilating on these points, the learned counsel would submit that the suit schedule property was purchased by defendant No.1 for and on behalf of the RFA No.1557/2006 : 18 : members of Jayanagar Cooperative Housing Society Limited. The suit property was intended for allotment to the members. Prior to the execution of the registered agreement of sale dated 23.02.1984, the defendant No.1 and original Plaintiff had entered into an unregistered agreement of sale dated 22.11.1983. Under that agreement, possession was delivered to the Society and even a Power of Attorney was executed in the name of the Chairman of the Society authorizing him to form a layout and to attend to the necessary formalities. Pursuant to the said agreement, the layout was formed and the plots were allotted to 54 members who were in possession of the suit schedule property as on the date of the institution of the suit. The said allottees had constructed residential houses and have been paying taxes to the HDMC as evidenced in Exs.D1 to D17 produced before the Court. The possession of the suit land by the Society was affirmed even by the Civil Court in the earlier suit filed by the plaintiff in O.S.No.2/1994 and in the said suit, a clear finding was recorded, which has even confirmed by the First Appellate Court in Misc. Appeal No.8/1994 holding that the Society RFA No.1557/2006 : 19 : was in possession of the suit schedule property. Therefore the assertion of the plaintiff that the possession of the suit schedule property was not delivered to the Society and the original plaintiff continued in possession of the suit schedule property and defendant Nos. 2 to 5 and other occupants are illegal trespassers in the suit schedule property is contrary to the orders passed by the Civil Court in O.S.No.2/1994. The original plaintiff No.1 and defendant No.1 being parties to the said proceedings, plaintiff No.1 and his LRs are bound by the findings recorded in the said suit. In the wake of the said findings, the suit filed by the plaintiff without arraigning all the members of the Society as parties to the suit is bad for non-joinder of necessary parties. The trial Court therefore was justified in dismissing the suit of the plaintiff as legally untenable.
(ii) Further, elaborating on the above contention, the learned counsel would submit that during the pendency of these proceedings, The Assistant Registrar of Cooperative Society, Dharwad has passed an order dated 31.07.2012, wherein the registration of the 1st respondent Society RFA No.1557/2006 : 20 : (Registration No.2736/73 dated 17.12.1973) is cancelled on the ground that the 1st respondent Society is ceased to exist. In view of this order, the appeal filed against the said Society is liable to be dismissed. As a result, the decree passed by the trial Court insofar as the said Society is concerned attains finality and the same is binding on the parties to this proceedings. In view of the aforesaid order passed by the Assistant Registrar of Cooperative Societies, no decree could be passed against the said Society without all the members of the said Society are brought on record as necessary parties to defend their right and interest derived from the erstwhile Society. Though the said order is brought to the notice of the appellants by producing the same before this Court, the appellants/plaintiff have not chosen to take steps to implead the members of the said Society. Therefore, even the appeal is liable to be dismissed for non-impleadment of 54 members of the said Society who have been allotted different plots in the suit property.
(iii) On the question of limitation, the learned counsel would submit that the cause of action for the RFA No.1557/2006 : 21 : plaintiff to file the suit arouse on 25.12.1993 when the plaintiff claims to have issued notice in Samyukta Karnataka daily and also on 28.12.1993 when the plaintiff claims that defendant No.1 and its henchmen started illegal construction in the suit schedule property. The relief claimed in the suit was for declaration and possession and therefore, by virtue of Article 58 of the Limitation Act, the suit ought to have been filed within three years from 25.12.1993, but the instant suit was filed only on 13.04.1998, beyond the period of limitation. The contention of the appellants that leave was sought in O.S.No.2/1994 does not save the limitation for the reason that the permission was granted to the appellants to institute the suit on the same cause of action, but the suit in hand has been filed on a totally different cause of action. Therefore, the trial Court was justified in holding that the suit was barred by the principles of limitation. In support of his contentions, the learned counsel for the defendant No.4 has referred to the following decisions:
i. (2005) 12 SCC 164
(Huvappa Irappa Ballari Vs. Basava and
Another)
RFA No.1557/2006
: 22 :
ii. AIR 2002 SC 960
(Shrimant Shamrao Survavanshi and
another Vs. Pralhad Bhairoba Suryavanshi (dead) by LRs. and others) iii. AIR 2008 SC 1462 (Mohd. Hussain (Dead) by L.Rs. & Ors. Vs. Occhavlal & Ors.
iv. 2014 (5) KCCR 1295(SC) (Coffee Board Vs. M/s. Ramesh Exports Pvt.
Ltd.,)
v. 2011(5) KCCR SN 500 (SC)
(Khatri Hotels Pvt. Ltd., and Another Vs. Union of India and Another)
15. Sri. Santosh B. Mane, learned counsel appearing for respondent Nos.2 and 3 has adopted the submissions made by Sri. M. R. Mulla, learned counsel for respondent No.4 and has further submitted that the transaction put forward by the plaintiff is hit by Section 79 (B) of the Land Reforms Act, as a consequence, the suit schedule property vest with the Government in terms of Section 82 of the Land Reforms Act, 1961.
16. I have bestowed my careful thought to the rival submissions made by the parties and have examined the records with reference to the case laws cited above. RFA No.1557/2006 : 23 :
17. The points that arise for consideration in this appeal are:
i. Whether the finding recorded by the Court below that defendant No.1 was in lawful possession of the suit schedule property as on the date of suit is sustainable on the facts and circumstances of the case?
ii. Whether the suit filed by the plaintiff is barred by law of limitation and hit by the provisions of Order II Rule 2 of the Code of Civil Procedure?
iii. Whether the plaintiff is entitled for a decree of possession?
iv. Whether the impugned judgment and decree warrants interference by this Court?
18. I propose to take up all these points together for consideration.
(i) The plaintiffs have based the suit on title and possession. But the title of the plaintiffs is not in dispute. The very case of the plaintiffs was that the original plaintiff agreed to sell the suit schedule property to defendant No.1 RFA No.1557/2006 : 24 : Society and received a consideration of Rs.42,601/- out of the total consideration of Rs.44,001/- . Though the plaintiffs have contended that defendant No.1 was required to complete the sale within one year from the date of execution of the agreement of sale dated 23.02.1984, but on perusal of said agreement - Ex.P2, I do not find any clause or recital therein requiring defendant No.1 to complete the sale within one year from 23.02.1984 as contended by the plaintiff. On the other hand, the terms and conditions agreed to between the parties stipulate that, before the registration of the sale deed, the plaintiff was required to survey the property and to get the same sub-divided.
The specific recital in this regard reads as follows:
"ªÉÄïÁÌt¹zÀ d«Ää£À £ÉÆÃAzÀt ªÀiÁr¹ ¸À¨ï-r«d£ï ªÀiÁr¹ PÉÆqÀĪÀ dªÁ¨ÁÝj £À£ßÀ zÄÀ EgÀÄvÀz Û .É "
(ii) The agreement further provided that, for the purpose of attending to the formalities of making necessary application to the concerned authorities, the original plaintiff has executed a power of attorney in favour of the Secretary of the Society. There is nothing in RFA No.1557/2006 : 25 : the said agreement - Ex.P2 to indicate that those formalities were required to be completed within one year from the date of registration of the agreement as contended. Instead, the agreement specifically provided that, after obtaining necessary permission from the concerned authorities, defendant No.1 in his capacity as the power of attorney holder of the plaintiff was required to intimate the plaintiff and within seven days therefrom, the original plaintiff was required to execute the sale deed in favour of defendant No.1. The pleadings and the evidence adduced by the plaintiff clearly establish that, pursuant to the above terms of the agreement, necessary applications were submitted before the concerned authorities and the same were pending consideration by the authorities. But unfortunately, during the pendency of these applications, plaintiff has filed the above suit on the ground that defendant No.1 did not come forward to pay the balance consideration and failed to perform its part of the obligations within one year from the date of the agreement and therefore, the original plaintiff was RFA No.1557/2006 : 26 : constrained to repudiate the transaction and revoke the power of attorney by issuing a paper publication.
(iii) The Course adopted by the plaintiff is contrary to the terms and conditions stipulated in the agreement of sale (Ex.P2). There is nothing in the entire agreement to indicate that time was the essence of the contract. On the other hand, a reading of the agreement reveals that the execution of the sale deed was conditional upon the permission from the competent authorities and sub- division and conversion of the property for non-agricultural use. The time for completion of the sale in terms of the above agreement would commence only after obtaining necessary permissions from the concerned authorities and within seven days after the intimation thereof to the plaintiff. But undisputedly, before the requisite permission could be obtained from the concerned authorities, the original plaintiff has revoked the power of attorney executed in favour of the Secretary of the Society, as a result, the responsibility of obtaining necessary permissions from the concerned authorities was taken over by the plaintiff himself. Therefore, it cannot be said that RFA No.1557/2006 : 27 : defendant No.1 Society failed to perform its part of the obligation.
(iv) The plaintiff appears to have presented the suit on the supposition that the original plaintiff has terminated the agreement of sale which according to the plaintiffs has furnished a cause of action to seek possession of the suit schedule property from defendant No.1. But I do not find anything on record to indicate that the plaintiff has either cancelled or terminated the aforesaid agreement of sale dated 23.02.1984. The only material produced before the Court is the paper publication said to have been issued by the plaintiff in Samyukta Karnataka marked as Ex.P.7. The said notice is extracted hereinbelow:
MlÄÖ ªÉÆQÛAiÀiÁgÀ ¥ÀvÀæ gÀzÀÝw £ÉÆÃn¸ÀÄ "MlÄÖ ²æà gÁªÀÄ¥Àà ¯ÉÆÃPÀ¥Àà gÀrØ, ZÉÃgÀªÀÄ£ï, dAiÀÄ£ÀUÀgÀ PÉÆÃ.D. ºË¹AUï ¸ÉƸÁ¬Än °. ¢rØ NtÂ, ºÀ¼ÉºÀħâ½î, ºÀħâ½î, EªÀjUÉ ªÀÄvÀÄÛ AiÀiÁªÀvÀÄÛ ¸ÁªÀðd¤PÀjUÉ, £ÀªÀÄä ¥ÀPÀëÀóUÁgÀ£Áz ºÀĸÉãÀSÁ£À vÀA¢ ºÁ²ªÀĸÁ§ ¢rØ, ¢rØ NtÂ, ºÀ¼ÉºÀħâ½î, ºÀħâ½î EªÀgÀ ªÀw¬ÄAzÀ PÉÆÃqÀĪÀ £ÉÆÃnøÀÄ K£ÉAzÀgÉ.
£ÀªÀÄä ¥ÀPÀëPÁgÀ£ÀÄ ¤ªÀÄä ºÉ¸Àj¯É 1984gÀ ¸ÀĪÀiÁgÀPÉÌ ºÀħâ½î PÀȵÁÚ¥ÀÄgÀ ºÀ¢ÝAiÀÄ ¸ÀªÉð £ÀA§gï 46/1 PÉëÃvÀæ 2 JPÀgÉ. 2 1/3 UÀÄAmÉ d«ÄãÀzÀ §UÉÎ §gÀPÉÆlÖ MlÄÖ ªÉÆQÛAiÀiÁgÀ ¥ÀvÀæªÀ£ÀÄß F ªÀÄÆ®PÀ gÀzÀÄÝ¥Àr¹zÁÝ£É. PÁgÀuÁ F d«ÄãÀzÀ §UÉÎ ¤ÃªÀÅ £ÀªÀÄä ¥ÀPÀëPÁgÀ£À ªÀw¬ÄAzÀ AiÀiÁªÀÅzÉà ªÀåªÀºÁgÀªÀ£ÀÄß MlÄÖ ªÉÆQÛAiÀiÁgÀ CAvÁ ªÀiÁqÀ¨ÁgÀzÀÄ. EzÉà RFA No.1557/2006 : 28 : jÃw ¸ÁªÀðd¤PÀgÀÄ ¸ÀzÀgÀ d«ÄãÀzÀ §UÉÎ AiÀiÁªÀÅzÉà ªÀåªÀºÁgÀ ªÀiÁqÀ¨ÁgÀzÀÄ. ªÀiÁrzÀ°è ®ÄPÁë£ÀPÉÌ ¥ÁvÀægÁUÀÄ«j CAvÁ PÉÆlÖ MlÄÖ ªÉÆQÛºÁgÀ gÀzÀÝw ¥ÀvÀæ ¸À».
vÁ.22.12.1993.
¸À»/- (f.¹.»gÉêÀÄoÀ) ªÀQîgÀÄ, ¹zÀÝ£À¥ÉÃl, ºÀħâ½î"
(v) A bare perusal of the above indicates that by the said publication, the plaintiff has revoked only the power of attorney executed in favour of the Chairman of the Society and not the agreement of sale - Ex.P2. By revoking the power of Attorney, the agreement of sale, Ex.P2 has not come to an end. There is not even a remote reference in the said publication about the cancellation of the agreement of sale dated 23.02.1984 (Ex.P2). It is not the case of the original plaintiff that he issued any other notice to defendant No.1 terminating the agreement of sale dated 23.02.1984 (Ex.P2). Ex.P3 is a notice issued to the Registrar of Cooperative Societies and Secretary of Jayanagar Co-operative Housing Society dated 29.09.1997. In the said notice, except alleging that defendant No.1 has failed to perform the terms and conditions of the said agreement, the plaintiff has not chosen to cancel the aforesaid agreement. Thus the fact RFA No.1557/2006 : 29 : remains that the agreement of sale - Ex.P2 entered into between the original plaintiff and the Society was subsisting and was in force as on the date of the filing of the suit.
(vi) Plaintiff has taken up a plea that under the said agreement possession of the suit schedule property was not delivered to defendant No.1. According to the original plaintiff, only after he filed the suit in O.S.No.2/1994, the defendants trespassed into the suit schedule property and started constructing sheds and therefore, the possession of the suit schedule property by the defendant is illegal and without any authority of law.
(vii) The fate of the suit depends upon the determination of this crucial issue. The plaintiff appears to have asserted possession over the suit property apparently on the basis of the endorsement contained in the agreement of sale Ex.P2. The said endorsement reads as follows:
"EAzÀÄ d«ÄãÀÄ PÀ¨ÁÓ PÉÆnÖ®"è , which means "possession is not delivered on this day."RFA No.1557/2006 : 30 :
Based on this endorsement, an argument has been built up that, even though the original plaintiff agreed to sell the suit schedule property to defendant No.1 subject to the terms and conditions stipulated therein, yet the he retained the possession with himself and therefore, unless the defendants were able to establish their possession adverse to the right and interest of the plaintiffs, the plaintiffs were not entitled for the relief of declaration as to their possession as well as to get vacant and actual possession of the suit schedule property from the defendants. However, considering the pleadings and the evidence produced by the parties, the trial Court has negated this plea and has returned a categorical finding that the possession of the suit schedule property was in fact delivered to defendant No.1 under the agreement of sale dated 22.11.1983 and since then defendant No.1, namely the Society, continued to be in possession of the suit schedule property and consequently the trial Court has held that the possession of defendant No.1 being legal and authorized, the plaintiff is not entitled for a decree of possession of the suit schedule property. RFA No.1557/2006 : 31 :
(viii) I do not find any perversity or illegality in the finding recorded by the trial Court on the above issue. It is seen from the impugned judgment, that in arriving at the above conclusion, the trial Court has taken into consideration the order passed by the Court of III Addl. Civil Judge (Jr.Dn.), Hubballi in O.S.No.2/1994 dated 22.01.1994 on I.A.No.1, which is confirmed by the Addl. Civil Judge, Hubballi in Misc.Appeal No.8/1994 (Ex.P11). Undisputedly, the said suit, namely O.S.No.2/1994 was filed by the erstwhile plaintiff No.1 for injunction, on the ground that the erstwhile plaintiff No.1 was in possession of the suit schedule property. Defendant No.1, namely the Society, resisted the suit contending that the Society has been put in possession of the suit schedule property pursuant to the agreement of sale entered into between plaintiff No.1 and defendant No.1 on 22.11.1983. It is relevant to note that, in para 12 of the said judgment (Ex.P11), it is noted that, even though the plaintiff did not produce the first sale agreement, the defendants have produced the same before the trial Court and looking into this document, in para 12 thereof, it was clearly mentioned RFA No.1557/2006 : 32 : that on the date of the first sale agreement i.e., 22.11.1983 itself, the possession of the land was handed over to the Society and it was further held that neither the plaintiff nor anybody on his behalf will have any right to dispute the possession of the defendant No.1 over the land. Based on this order, the trial Court as well as the Appellate Court dealing in O.S.No.2/1994 have recorded a factual finding that the plaintiff was not in possession of the suit schedule property as on the date of the institution of the said suit.
(ix) The above finding undeniably is binding on the original plaintiff and his legal heirs. But inspite of the said finding, the plaintiff instituted the present suit on the specious plea that he did not hand over actual possession to defendant No.1 or to any of its members and it is only when the plaintiff contemplated to file the suit in O.S.No.2/1994, defendant No.1 and his henchmen unlawfully trespassed into the property and put up huts therein. This assertion is proved to be false; as a result the very substratum of the plaintiff's case is rendered vulnerable. In the wake of the clear finding recorded by RFA No.1557/2006 : 33 : the Civil Court in O.S.2/1994 holding that defendant No.1 Society was in lawful possession of the suit property, the suit filed by the plaintiffs on the purported plea was totally misconceived and legally untenable and therefore, the trial Court has rightly refused the relief to the plaintiff.
19. From the above discussion, it stands established that the Society was put in possession of the suit schedule property pursuant to the agreement of sale dated 22.11.1983. Needless to say that the original plaintiff himself has ratified this agreement in the subsequent registered agreement of sale dated 23.02.1984
- Ex.P2. The preamble of the said agreement specifically makes mention of the said previous agreement dated 22.11.1983, making it abundantly clear that the subsequent registered agreement is only a continuation of the previous agreement entered into between the original plaintiff and the Society and the parties did not intend to cancel the previous agreement. If in fact the original plaintiff intended to cancel the aforesaid agreement, there would have been a specific recital in this regard in the subsequent agreement dated 23.02.1984. On the other RFA No.1557/2006 : 34 : hand, by making a clear reference to the previous agreement, the plaintiff has confirmed that the terms and recitals of the earlier agreement were not repugnant to the terms and conditions stipulated in Ex.P2.
20. Though much has been argued by the learned counsel for the appellants/plaintiffs, that the endorsement contained in Ex.P2 to the effect that the possession of the suit property was not delivered to defendant No.1, runs counter to the finding recorded by the trial Court, yet, in appreciating this contention, it is necessary to find out the circumstance in which the said endorsement came to be made in Ex.P2. In this context, it is relevant to note that the appellants/plaintiffs have advisedly not produced the original agreement before the Court, which would have helped the Court to find out whether the said endorsement was part and parcel of the terms and conditions of the agreement or whether it was a stand alone endorsement. A look at the certified copy of the agreement produced by the plaintiffs at Ex.P2 reveals that the said endorsement is written on the back sheet of the agreement, below the endorsements made by the Registering Authority making it RFA No.1557/2006 : 35 : evident that the said endorsement came into existence only at the time of the registration and not at the time of execution of the agreement. The reason is not far to seek.
21. Undisputedly, the suit schedule property was an agricultural property. Defendant No.1 being the Society registered under the Societies Registration Act, could not have purchased the said property in view of the restrictions contained in the Land Reforms Act, without converting the same to non-agricultural user. Apparently, to get over this impediment, at the time of the registration of the agreement, the aforesaid endorsement appears to have been inserted in order to hoodwink the Authorities that the possession of the suit schedule property was not delivered to the vendee, namely, defendant No.1 under the said agreement. But the possession of the suit schedule property having already been handed over to defendant No.1 Society under the previous agreement of sale, this endorsement in my opinion cannot be construed as taking away the possession of the property from defendant No.1. In this regard, it is also relevant to note that, nowhere in the body of the agreement (Ex.P21), the RFA No.1557/2006 : 36 : parties have stated that the possession of the suit schedule property was retained by the vendor and the same was agreed to be delivered only at the time of the registration of the sale deed. On the other hand, the various other clauses discussed above, clearly indicate that defendant No.1 - Society intended to purchase the suit property to form a residential layout for the use of its members and for attending to the said formalities, the original plaintiff even executed a Power of Attorney in favour of the Chairman of the Society. Even otherwise, it is a matter of record that the plaintiffs were never in possession of the suit schedule property either on the date of registration of Ex.P2 or on the date of the institution of the suit. Going by the very case pleaded by the plaintiffs it can be safely hold that as on the date of filing of the suit, huts and sheds had come up in the suit schedule property. Though the plaintiff has contended that those huts came into existence just prior to the institution of the suit, but in the course of the evidence, the defendants have produced convincing material to show that taxes were being paid in respect of these sheds. No doubt, the Society has not RFA No.1557/2006 : 37 : acquired any title to the said schedule property for want of completion of the sale deed, yet defendant No.1 Society having come into lawful possession of the suit schedule property pursuant to the agreement of sale dated 22.11.1983 and continued to be in possession thereof on the date of the execution of the sale agreement Ex.P2 and subsequently, till the institution of the suit, in my view, the doctrine of part performance as laid down in Section 53-A of the Transfer of Property Act, comes to the aid of defendant No.1 to protect the possession of the suit schedule property.
22. In this context, a useful reference could be made to the proposition of law laid down by the Hon'ble Supreme Court of India in the case of Suresh Khullar Vs. Vijay Khullar reported in (2005) 2 SCC 166, wherein the Hon'ble Supreme Court following the ratio laid down in Shrimant Shamrao Suryavanshi Vs. Pralhad Bhairoba Suryavanshi reported in AIR 2002 SC 960, has observed thus:
"The Special Committee's report which is reflected in the aims and objects of the RFA No.1557/2006 : 38 : amending Act, 1929 shows that one of the purposes of enacting Section 53-A was to provide protection to a transferee who in part-
performance of the contract had taken possession of the property even if the limitation to bring a suit for specific performance has expired. In that view of the matter, Section 53- A is required to be interpreted in the light of the recommendation of the Special Committee's report and aims, objects contained in the amending Act, 1929 of the Act and specially when Section 53-A itself does not put any restriction to plea taken in defence by a transferee to protect this possession under Section 53-A; even if the period of limitation to bring a suit for specific performance has expired."
23. Undisputedly, in the instant case, neither the Society nor its office bearers or the members have taken any steps to seek enforcement of agreement of sale dated 23.02.1984(Ex.P2). Nonetheless, the right of defendant No.1 to defend its possession is not taken away by afflux of time. The plaintiff appears to have sought to defeat the rights of defendant No.1 to the possession of the suit schedule property on the specious plea that the possession RFA No.1557/2006 : 39 : of the suit schedule property was not delivered to defendant No.1 at any point of time of time. This plea is proved to be contrary to the factual situation and the documentary evidence produced by the defendants. Under the said circumstances, solely on the ground that the defendant No.1 have not chosen to enforce the aforesaid agreement of sale, does not render its possession illegal nor does it entitle the plaintiff to seek possession of the suit schedule property, especially when it is proved in evidence that the agreement of sale is still in force and the same is binding on the LRs of the original plaintiff as well as the legal representatives or assignees representing the Society.
24. The Hon'ble Supreme Court in the case of Shrimant Shamrao Suryavanshi (supra) has held that:
"The established rule of limitation is that law of limitation is not applicable to plea taken in defence unless expressly a provision is made in the statute. The law of limitation applies to the suits and applications. The various articles of the Limitation Act show that they do not apply to a defence taken by a defendant in suit. Thus, RFA No.1557/2006 : 40 : the law of limitation bars only an action in a Courts of law. In fact, what the Limitation Act does is, to take away the remedy of a plaintiff to enforce his rights by bringing an action in a Court of law, but it does not place any restriction to a defendant to put forward any defence through such defence as a claim made by him may be barred by limitation cannot be enforced in a Court of law. On the said principle, a defendant in a suit can put forward any defence though such defence may not be enforceable in a court of law, being barred by limitation."
25. In the light of the above factual and legal position, I am of the considered opinion that the appellants/plaintiffs are not entitled for the relief of possession of the suit property as sought for in the plaint. It is proved in evidence that the defendant No.1 Society was in actual possession and enjoyment of the suit schedule property on the date of the institution of the suit. It is also established that defendant No.1 came in possession of the said suit schedule property under the agreement of sale dated 22.11.1983 entered into between the Original plaintiff and defendant No.1. The subsequent registered agreement entered into between the parties as RFA No.1557/2006 : 41 : per Ex.P2 is an continuation of the agreement dated 22.11.1983, whereunder the possession of the suit schedule property was delivered to defendant No.1. As per the terms and conditions of the agreement (Ex.P2), the plaintiff was liable to execute the sale deed in favour of the Society after obtaining the necessary permissions from the competent authorities for sub-division and conversion of the property. The time was not an essence for the performance of the terms of this agreement. Neither the original plaintiff, nor his legal heirs have rescinded or cancelled the aforesaid agreement Ex.P2. Undisputedly, the plaintiff has received 95% of the consideration under the said agreement and yet failed to fulfill his part of the obligation in conveying the property to the Society by obtaining the necessary permissions from the competent Authorities. The agreement does not contain any default clause or forfeiture clause. Therefore, without terminating the agreement, in my view, the plaintiffs/appellants are not entitled to recover possession of the suit schedule property, from defendant No.1 or anyone claiming through or under defendant No.1.
RFA No.1557/2006: 42 :
26. The trial Court has considered all the above factual and legal aspects of the case and has rightly come to the conclusion that the defendant No.1 was in lawful possession and enjoyment of the suit schedule property as on the date of the institution of the suit. Even on re- appreciating the evidence in the light of the pleadings and the legal contentions urged by the parties, I do not find any reason to differ with the view taken by the trial Court. Accordingly, concurring with the finding recorded by the trial Court on this issue, point No.1 is answered in the affirmative. It is held that defendant No.1 was in lawful possession of the suit schedule property as on the date of the institution of the suit. In the light of the legal position discussed above, defendant No.1 Society is entitled to defend the possession of the suit schedule property until the termination of the agreement of sale Ex.P2. Since the said agreement of sale is still subsisting and is in force, the appellants/plaintiffs are not entitled for the decree of possession of the suit schedule property. Accordingly, point No.3 is also answered against the appellants/plaintiffs.
RFA No.1557/2006: 43 :
27. (i) Though the contesting defendants have raised the plea of limitation and the bar under Order II Rule 2 of CPC in order to defeat the suit, yet in view of the findings recorded as above, these issues may not be germane for consideration. However, as the plaintiffs/appellants have based the suit on title and purported possession, the law is well settled that in a suit for declaration of title and possession, where the principal and effective relief is for a decree of possession, Article 65 and not Article 58 would apply.
(ii) Article 65 provides for a period of limitation of 12 years when the possession of the defendant becomes adverse to the plaintiff. But in the instant case, as I have come to the conclusion that defendant No.1 has been in lawful possession of the suit property pursuant to the agreement of sale which is still in force, no cause of action has arisen for the plaintiff to seek possession of the suit schedule property from defendant No.1. Therefore, in my view, the question of limitation will not come in the way of the plaintiffs to maintain the suit. This point is answered accordingly.
RFA No.1557/2006: 44 :
28. (i) Insofar as the bar under Order 2 Rule 2 pleaded by the contesting defendants is concerned, the said plea is also not available to the defendants. It is now well settled that;
"In order that a plea of a bar under Order 2 Rule 2(3) of the Civil Procedure Code should succeed the defendant who raises the plea must make out: (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (2) that in respect of that cause of action the plaintiff was entitled to more than one relief; (3) that being thus entitled to more than one relief the plaintiff, without leave obtained from the Court omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar." [Coffee Board Vs. Ramesh Exports (P) Ltd., reported in (2014) 6 SCC 424] RFA No.1557/2006 : 45 :
(ii) Apart from the above legal aspect, in order to examine the technical plea of Order 2 Rule 2 CPC, the defendants are also required to produce the pleadings in both the suits so as to determine the identity of the parties and the identity of the cause of action pleaded in both the suits. As observed by the Privy Counsel in Payana Vs. Pana Lana (1914) 41 IA 142;
"The rule is directed to securing the exhaustion of the relief in respect of a cause of action and not to the inclusion in one and the same action or different causes of action, even though they arise from the same transaction."
(iii) In the instant case, no such pleadings are brought on record by the defendants to sustain the plea of Order 2 Rule 2 CPC. The only document available on record is the certified copy of the order passed on I.A.No.4 dated 23.01.1998 passed in O.S.No.2/1994 (Ex.P10) and certified copy of the order in Misc. Appeal No.8/1994 (Ex.P11). From these documents, it cannot be deciphered whether the plaintiffs have exhausted the relief in respect of the cause of action on which the suits were based. Therefore, in my consideration, even this plea is not RFA No.1557/2006 : 46 : available to the defendants. Accordingly, the contentions raised by the defendants in this regard is answered against them.
29. Lastly, the contention raised by the defendants that the suit is bad for non-joinder of all the members of defendant No.1 - Society and the appeal filed against the Society has stood abated in view of the order passed by the Assistant Registrar of Cooperative Societies, Dharwad on 31.07.2012 during the pendency of this appeal, is also liable to be rejected.
(i) Firstly, the defendants have not produced any acceptable material to show that defendant No.1 has allotted the portions of the suit property to 64 members thereof as contended. On the other hand, the evidence on record reveals that the title in respect of the suit property was not vested in defendant No.1 - Society, as a result, the Society could not have allotted any plots in the schedule property to his members as contended.
(ii) The defendants have also not produced any list of the registered members of the Society and have not taken RFA No.1557/2006 : 47 : any steps to bring them on record, even as formal parties to the suit.
(iii) From the respective contentions urged by the parties, it is evident that none of the members of defendant No.1 - Society have any independent right, title or interest in and over the suit schedule property. Defendant Nos. 2 to 5 were arrayed as parties to the suit not in their capacity as the members of defendant No.1 Society, but only as office bearers of the said Society. In any case, the contesting defendants having not substantiated the rights of the so-called members of the Society to come on record, in my view, the plaintiffs cannot be non-suited for not making them as parties to the suit.
(iv) Another aspect which needs to be noted is that, during the pendency of this appeal, defendant No.1 Society itself has become defunct and the Assistant Registrar of the Cooperative Societies, Dharwad has passed an order dated 31.07.2012, wherein registration of the defendant No.1 Society (Registration No.2736/73 dated 17.12.1973) is cancelled on the ground that the 1st defendant Society is RFA No.1557/2006 : 48 : ceased to exist. Even though it is contended that, in view of this order, the appeal filed against defendant No.1 Society gets abated and consequently, the decree passed in favour of the Society by the trial Court attains finality also cannot be accepted. Undisputedly, on the earlier instance the appeal was decided by this Court without the representation of defendant No.1 Society, but in view of the order passed by the Hon'ble Supreme Court of India in Civil Appeal No.10130/2014 (arising out of SLP (Civil) No.2498/2014), the Registrar of the Cooperative Society has been impleaded as representing the Society in terms of the provisions of the Societies Registration Act, 1860. In view of the order passed by the Registrar of the Cooperative Society canceling the registration of defendant No.1 Society, the competent Authority under the Act is required to effectuate the objectives of the Society in accordance with the provisions of the Societies Registration Act, 1860. Therefore, even on this score also, the suit filed by the plaintiffs and the consequent appeal pending on the file of this Court do not get affected as contended.
RFA No.1557/2006: 49 :
30. Thus, on ultimate analysis of all the facts and circumstances of the case, in the light of the evidence adduced by the parties and the contentions urged in this appeal, I am of the considered opinion that the appellants have failed to make out a justifiable ground to interfere with the impugned judgment. The trial Court has considered the pleadings and the evidence of the parties in proper perspective and has arrived at just decision which does not call for interference by this Court. For the reasons stated above, the appeal is liable to be dismissed and the judgment and the decree passed by the trial Court deserves to be affirmed. Hence the following:
ORDER The appeal is dismissed. The judgment and decree dated 14.07.2006 passed by the Principal Civil Judge (Sr.Dn.), Hubballi in O.S.No.99/1998 is confirmed.
Parties shall bear their own costs.
Sd/-
JUDGE Page 1 to 10 - mn/-
page 11 to 49 - gab/-