Karnataka High Court
Mrs Lakshmi Narasamma vs Mrs Mangala Gowrinag on 25 March, 2015
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF MARCH 2015
BEFORE:
THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY
REGULAR FIRST APPEAL No.1398 OF 2009
BETWEEN:
Mrs. Lakshmi Narasamma,
Wife of Late Adinarayana Setty,
Aged about 75 years,
Residing at No.1157,
10th Cross, Ashoknagar,
2nd Block, BSK 1st Stage,
Bengaluru 560 050.
... APPELLANT
(By Shri. Rajagopalanaidu, Advocate for Shri. K.K.Vasanth,
Advocate)
AND:
1. Mrs. Mangala Gowrinag,
Wife of K.N.Nag,
Major by age,
Residing at No.253/4,
Model House 4th Street,
Basavanagudi 560 004.
2. Mr. Markanda Naidu,
Son of Muniswamy Naidu,
2
Major by age,
Since dead by his
Legal Representatives:
2a) Mrs. Yashodamma,
Wife of Late Markanda Naidu,
Major by age,
2b) Mrs. Nagarathna,
Daughter of Late Markanda Naidu,
Major by age,
2c) Mrs. Ambika,
Daughter of Late Markanda Naidu,
Major by age,
2d) Mrs. Savithri,
Daughter of Late Markanada Naidu,
Major by age,
2e) Mrs. Saraswathi,
Daughter of Late Markanda Naidu,
Major by age,
All are residing at No.93,
'Srinivasa Nilaya',
13th Main Road, Hanumanthnagar,
Bengaluru 560 050.
[cause title amended vide court order
Dated 24.8.2012]
3. Mr. L.S.Mani,
Son of Lakshman,
Major by age,
Residing at No.219,
3
4th Cross, Khader Sharieff Garden,
Lalbagh Road,
Bengaluru 560 027.
...RESPONDENTS
(By Shri. H.S. Dwarakanath, Advocate for Caveator/Respondent
No.1;
Respondent Nos.2(a) to 2(e) served;
Vide court order dated 25.1.2010, notice to Respondent No.3 served
by way of Hand Summons )
*****
This Regular First Appeal filed under Order 41, Rule 1,
Section 96 of the Code of Civil Procedure, 1908, against the
judgment and decree dated 7.10.2009 passed in O.S.No.2898/1993
on the file of the XIV Additional City Civil Judge, Bangalore City,
partly decreeing the suit for the declaration and possession.
This Regular First Appeal having been heard and reserved on
05.03.2015 and coming on for pronouncement of Judgment this
day, the Court delivered the following:-
JUDGMENT
This is an appeal by the third defendant in a civil suit.
2. The parties are referred to by their rank before the trial court.
3. The case of the plaintiff was that she was the absolute owner of property bearing no.11/10, Chennamanakere Tank Bund 4 Road, Padmanabhanagar Division, situated in land bearing Survey no. 21 of Sunkenahalli, Bangalore North Taluk, measuring about 30 feet by 45 feet and more fully described in the Schedule to the suit. The plaintiff is said to have purchased the same under a registered sale deed dated 13.7.1960. It was said to have been converted for non-agricultural and residential use in the year 1972.
4. The first defendant is said to have made attempts to interfere with the plaintiff's possession of the suit property and hence she is said to have filed a civil suit in O.S.No.3988/1988, before the City Civil Court, Bangalore, seeking a permanent injunction, restraining such interference and the court is said to have granted an order of temporary injunction, in the first instance. Thereafter, in the month of April 1989, the second defendant is said to have made an attempt to interfere with the suit property, claiming a right under the first defendant. The second defendant is said to have filed a civil suit, in O.S.No.2151/1989, seeking the relief of permanent injunction against the plaintiff on the allegation that she 5 was interfering with his possession. The said suit is said to have been subsequently dismissed for non-prosecution.
The plaintiff had then sought to commence construction of a residential premises on the suit property, at which time the third defendant and her husband along with their henchmen, are said to have violently trespassed on the property and started asserting a right over the property and are said to have started to dig up the land in order to purportedly lay a foundation for a building. The plaintiff's complaint to the jurisdictional police was said to be in vain as it was characterized as a civil dispute. The plaintiff is thus said to have filed another suit in OS 3184/1990 and had obtained an order of injunction against defendant no.3 from such interference. Notwithstanding service of notice of such order, the said defendant is said to have, in gross violation of the said order, continued construction of a building on the land. And on the other hand, suppressing the said fact, had filed a suit in O.S.2781/1990 against the plaintiff and had even succeeded in obtaining an order of injunction and is said to have demolished a shed which had been 6 constructed by the plaintiff on the suit property. That suit was ultimately said to have been decreed and a permanent injunction was issued against the plaintiff. It is in that background that the plaintiff was driven to file another suit in O.S.No.2898/1993, seeking comprehensive reliefs of declaration of title and for recovery of possession of the property from the third defendant.
The first and the second defendants are said to have remained absent. The third defendant had contested the suit, to claim that she had purchased the suit property in the year 1989 and also is said to have claimed that the khatha in respect of the property had been made out in her name and that she had also obtained sanction of plan for the construction of a house from the Bangalore City Corporation. It was said to have been claimed that the property originally belonged to one Vishnumurthy Rao and Gurudathrao, who are said to have sold the same to one S. Jayadeva Prakash and from whom one Markanda Naidu had purchased the same and in turn is said to have sold the same to one Mani, from whom the third defendant is said to have purchased the property under a sale deed 7 dated 5.5.1989. In the wake of the plaintiff having staked a claim to the property, it is said to have been contended by the third defendant, that she had filed the suit in O.S.No.2781/1990 against the plaintiff which was decreed as prayed for. It was hence denied that the plaintiff could have any manner of right over the suit property. It was also contended that the third defendant had even leased out a portion of the suit property.
5. On the above pleadings, the court below is said to have framed the following issues:
"1. Whether plaintiff proves that she is the owner in possession of the schedule property?
2. Whether plaintiff proves that defendants are the strangers to the schedule property?
3. Whether plaintiff proves that defendant No.3 forcibly trespassed over the schedule property in the year 1990 as contended in para 9 of the plaint?
4. Whether defendant No.3 proves that she is the absolute owner in possession and enjoyment of the property bearing No.11 situated at Sunkenahalli, Uttarahalli Hobli, 8 Corporation Sub-Division No.31, and she has constructed structure in the said property?
5. Whether plaintiff is entitled for the reliefs sought?
6. What order or decree?"
The above issues were answered in the affirmative and the suit having been decreed, the present appeal is filed.
6. The learned counsel for the appellant contends that the suit property is presently under the jurisdiction of the Bruhath Bengaluru Mahanagara Palike (BBMP) and is assigned property no.21/3/11, C.T.Bed Road, Banashankari III Stage, Bangalore. It is contended that the appellant - third defendant had put up construction of a house to the extent of 50%, when the plaintiff had set up a claim against the property. And that in the above stated circumstances, the said defendant had completed construction and had let out the premises to tenants. The suit instituted by the third defendant against the plaintiff, in O.S.No.2781/1990 is said to have been decreed on 24.6.1995.
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It is contended on behalf of the appellant, that one Padmavathamma was the original owner of the larger extent of land bearing Survey no.21 of Sunkenahalli. She had sold 1-16 acres of land to one Vishnumurthy Rao and Gurudutta Rao under a sale deed dated 18.11.1959 pertaining to land comprised in survey no. 21/3 that stood bifurcated, measuring East to West 555 feet and North to South 110 feet and subsequently the said Vishnumurthy Rao is said to have sold an extent of land measuring 290 feet by 55 feet to one S. Jayadeva Prakash under a sale deed dated 6.9.1982.
It is claimed that the said Jayadeva Prakash is said to have formed a layout on land bearing Survey No.21/3, consisting of house sites of various dimensions and had appointed one Chikkamma as his General Power of Attorney. It is claimed that the suit property and the adjoining site no.12 were included in the sale deed of Jayadeva Prakash.
It is contended that Jayadeva Prakash had sold sites bearing nos.11 and 12 to G. Markanda Naidu by a sale deed dated 2.2.1981. He had then sold a site measuring 30 feet East to West and 42 feet 10 North to South to L.S. Mani under a sale deed dated 3.6.1988, who in turn had sold it to the appellant. It is further claimed that the appellant has in turn gifted the property to her son on 23.3.2000, who in turn is said to have sold the property to one V. Pushpa and T.M. Rekha under a sale deed dated 15.3.2007. Hence the appellant had ceased to be the owner of the suit property .
It is contended that there was a serious dispute as to the property that was claimed by the plaintiff as the suit schedule property. It was urged that the plaintiff had not produced any material to indicate that she was in possession of the suit property at any point of time. It is contended that the court below had failed to note that the land in survey no.21 had been bifurcated and that the property claimed by the plaintiff is entirely different.
The plaintiff having filed an earlier suit in O.S.No.3184/1990 and having failed to seek leave of the court reserving the liberty to file a fresh suit on the same cause of action, the suit was barred under Order II Rule 2 of the Code of Civil Procedure, 1908 (Hereinafter referred to as the 'CPC', for brevity). 11
It is contended that from the title deeds of the predecessors in interest of the appellant, it is evident that physical possession is established from the year 1972 in persons under whom the appellant claims and though the sale deed of the appellant is of the year 1989, the suit for declaration filed in the year 1993, is hopelessly barred by time.
It is also pointed out that defendant no.1 had died during the pendency of the suit and the legal representatives of the said defendant had not been brought on record and hence the proceedings abated in entirety, as there could be no exemption to the requirement of bringing the legal representatives of the deceased defendant on record.
The following authorities are referred to and relied upon in support of the contentions by the learned counsel for the appellant.
1. Balwant Singh and another vs. Daulat Singh (dead) by legal representatives and others, AIR 1997 SC 2719,
2. Chhaganlal Keshavlal Mehta vs. Patel Narandas Haribhai, AIR 1982 SC 121, 12
3. Shahazada Bi and others vs. Halimabi (dead) by her legal representatives, AIR 2004 SC 3942,
4. Municipal Board, Lucknow vs. Pannalal Bhargava and others and Municipal Board, Lucknow vs. Sunderlal Gupta and others, AIR 1976 SC 1091,
5. Beharilal and another vs. Smt.Bhuri Devi and others, AIR 1997 SC 1879,
6. Bijivemula Venkata SUbba Reddy vs. Jangam Satya Babu and others, MANU AP/0848/2008
7. Gram Panchayat of Village Naulakha vs. Ujagar Singh and others, AIR 2000 SC 3272;
8. Chinnappa vs. Corporation of the City of Bangalore, AIR 2005 KANT 70;
9. Gnanavel vs. T.S.Kanagaraj and another, AIR 2009 SC 2367,
10. Alla Baksh vs. Mohd.Hussain, ILR 1996 Kar.1340;
11. Smt. Chandrakantaben J Modi and Narendra Jayantilal Modi, vs. Vadilal Bapalal Modi and others, AIR 1989 SC 1269; 13
12. Union of India vs. Vasavi Co-op.Housing Society Ltd. And others, 2014 SAR (Civil) 191;
13. Viswanatha Achari vs. Kanakasabapathy, AIR 2005 SC 3109;
14. Anathula Sudhakar vs. P.Buchi Reddy, AIR 2008 C 2033;
15. Narayana Bhat vs. Narasimha Sastry, air 2005 KANT 70. The learned counsel for the appellant has also filed several applications at the stage of final hearing of this appeal. The appellant has filed an application, dated 30.1.2015, under Order XLI Rule 27 CPC seeking to produce the following additional documents and for permission to lead additional evidence in that regard. The additional documents are:
1. Copy of the sale deed dated 2.2.1981 executed by Sri. S.Jayadeva Prakash through his GPA holder, in favour of Sri. G.Markanda Naidu in respect of site No.11 and 12 in Survey No.21/3 of Sunkenahalli village.
2. Copy of the sale deed dated 3.6.1988 executed by G.Markanda Naidu in favour of L.S. Mani in respect of the site no.11 formed in Sy.No.21/3 of Sunkenahalli village measuring 30 ft.
x 42 ft.
14
3. Copy of the certificate dated 17.07.1985 issued by the then Corporation of the City of Bengaluru in favour of L.S. Mani.
4. Copy of mutation register in M.R.No.1/1989-90 issued in favour of Lakshmi Narasamma in respect of site No.11 in Sy.No.21/3 measuring 30 ft. x 45 ft.
5. Copy of the register extract of house and vacant site issued by BBMP in favour of Lakshmi Narasamma.
The appellant has also sought permission to amend the written statement by incorporating the following paragraph as paragraph 10 (a) :
"Proposed amendment at para 10(a):
It is submitted that the predecessor in title of defendant No.3 namely, one Jayadeva Prakash purchased several sites including site No.11 formed in Sy.No.21/3 in an extent of 1 acre 16 guntas of Sunkenahalli village from his vendors under the sale deed dated 6.9.1972 who in turn sold site No.11 & 12 formed in Sy.No.21/3 of Sunkenahalli village in favour of G. Markanda Naidu the defendant No.1 in the said suit under the sale deed dated 2.2.1981, who in turn sold site No.11 measuring 30 x 42 feet, in favour of Sri. L.S. Mani under the sale deed dated 3.6.1988, who in turn sold the same in favour of the defendant No.3 with construction under the sale deed dated 10.4.1989 and thus the 3rd defendant predecessor in title were in possession of site No.11 right 15 from 1972 till the date of sale made in favour of this defendant and thereafter she is in possession of the same. It is submitted that, the said sale deeds being registered documents, the same is to the knowledge of the plaintiff in the said suit, adverse to the interest of the plaintiff. As such the suit of the plaintiff is barred by law of limitation as she has failed to file the suit within 12 years from 1972 or even within 12 years from 2.2.1982, as she has filed the present suit on 24.4.1993 for declaration and for recovery of possession. Hence, the limitation bars remedy as the right stands extinguished having not brought the suit within the limitation period."
The appellant has filed a second application under Order XLI Rule 27 of the CPC, dated 20.2.2015, seeking to produce the following additional documents and seeking to tender evidence thereon.
1. Copy of the sale deed dated 6.9.1972 executed by Vishnumurthy Rao and Babu Rao in favour of S. Shivashankar.
Typed copy of sale deed dated 6.9.1972.
2. Copy of the sale deed dated 6.9.1972 executed by Vishnumurthy Rao and Babu Rao in favour of S. Jayadeva Prakash.
Typed copy of sale deed dated 6.9.1972.
16
7. The learned counsel for the first respondent has opposed the applications to contend that Order XLI Rule 27(aa) of CPC is applicable to the facts of the case and it requires establishment of the fact that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not after the exercise of due diligence be produced by him at the time the decree was passed. Further, the very written statement refers to these documents which are sought to be produced and consequently, it cannot be said that the same was not within the knowledge of the appellant. The documents that appellant wants to produce are two registered sale deeds and revenue records and if the third defendant was diligent, she could have obtained certified copies produced the same, notwithstanding the fact that those documents would not in any way advance the case of the appellant. That the reason given in the affidavit is as stated in paragraph 4 that the appellant being an illiterate woman, was unable to provide all the documents, and that on the instructions of her counsel, she had produced certain documents and that she had obtained certain documents subsequent 17 to the disposal of the suit. Further, there is no statement as to why she was not asked to produce these documents and as to why she did not produce these documents. That it is not in dispute that instructions for filing the written statement were given by the third defendant. If third defendant has referred to those documents in the written statement, there is no substance in contending that she was not aware of the importance or she did not know of the requirement to produce the documents.
8. In so far as the application seeking amendment of the written statement is concerned, it is contended by the learned counsel for the first respondent that the law regarding amendment has been amended and the proviso to Order VI Rule 17 CPC states that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of the trial. Further, a reading of the written statement at para-4 would show that the property being sold by Sri. Vishnumurthy and Sri. Gurudut Rao to Sri. Jayadev Prakash and 18 subsequent sale deeds upto the sale deed in favour of the third defendant, was to the knowledge of the third defendant and what is sought to be pleaded by way of amendment under Order VI Rule 17 of CPC is nothing other than what was already pleaded in so far as factual aspects are concerned. Consequently, this court cannot accept that by exercise of due diligence, the matter could not have been pleaded earlier. Further, it is contend that in para-4 of the affidavit in support of I.A., it has been stated that the third defendant who is the appellant herein being illiterate, was unable to take all the defence inspite of exercising due diligence. This is the only reason given to overcome the bar for amendment under the proviso to Order VI Rule 17 of CPC.
Further, that the third defendant was represented by an advocate and all the material facts have already been pleaded and consequently, the reason given that she is an illiterate cannot be accepted for the reason that she had given all the factual matters to the advocate and the same have already been pleaded. It is contended that the law requires absolute bonafides to be shown for 19 entertaining an amendment application. This day another application has been filed under Order XLI Rule 27 of CPC for production of additional documents. The list of documents given along with that does not include the sale deed in favour of Shri. Jayadeva Prakash. If Shri Jayadeva Prakash did not have title, the defendant cannot claim title. This may be seen along with the recitals in Ex-P5 wherein the court has come to the conclusion that Sri. Jayadev Prakash has never purchased the property. This may further be seen in the light of a notice having been given under Order XII Rule 8 of CPC before the trial court asking for the said document to be produced and adverse inference having been drawn for non production of the said documents.
9. In so far as the second application seeking production of additional documents, it is contended that it suffers from the same infirmity as the first and in the absence of a valid ground to entertain the application, the proceedings would be rendered interminable if the appellant is permitted to make attempts to improve her case by hindsight.
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10. On the merits of the appeal, the learned counsel for respondent no.1 would seek to justify the judgment of the court below. In so far as the contention that the proceedings abated on account of the legal representatives of defendant no.1 not having been brought on record, the learned counsel draws reference to Order XXII Rule 4 (4) of the CPC, to assert that since the said defendant had not contested the suit, the contention of the appellant is not tenable.
As far as other legal contentions are concerned, the learned counsel has placed reliance on the following authorities.
1. Dasappa vs. Seetharam, ILR 1995 KAR. 1683;
2. Electronics and Controls vs. The Karnataka Industrial Area Development Board 2010 (4) KCCR 2648;
3. State of Maharashtra vs. Pravin Jethalal Kamdar, AIR 2000 SC 1099;
4. Ashok Kumar and others vs. Gangadhar and another, AIR 2007 AP 145;
5. Seshumull M Shah vs. Sayed Abdul Rashid and others, AIR 1991 KANT 273;
21
6. Harjeet Singh vs. Smt.Dulari Devi and others, MANU/UC/0377/2008
7. Ashabai vs. Mohanlal, MANU/MH/0237/2012
8. Vidyabai and others vs. Padmalatha and another, 2009(2) SCC 409
9. J.Samuel and others vs. Gattu Mahesh and others, 2012(2) SCC 300
10. Ajendraprasadji N.Pande and another vs. Swami Keshavprakeshdasji N and others, 2006(12) SCC 1.
11. In the light of the above, and on an examination of the record, it is seen that there is no dispute that the suit property originally belonged to Vishnumurthy Rao and Gurudath Rao. The plaintiff is said to have purchased the suit property from them in the year 1960. Defendant no. 3 has also contended that she also traced her title to Vishnumurthy Rao, as he and one Babu Rao had sold the property to one Jayadeva Prakash as on 6.9.1972 (as per copy of sale deed now sought to be produced with an application under Order XLI Rule 27, dated 30.1.2015, aforementioned), who is said to have sold the same to the first defendant and he in turn having sold the 22 same to the second defendant, from whom the appellant, third defendant is said to have purchased the property in the year 1989.
It is seen that the suit was not contested at all. In the first instance, the husband of the plaintiff had tendered evidence and the matter having been set down for final hearing in the year 2005, the third defendant is said to have entered appearance and had sought to contest the suit. She was permitted. The plaintiff's husband having died in the meanwhile, the plaintiff had again tendered evidence in support of the case. Though she had faltered in furnishing accurate details of the suit property, the trial court has rightly held that the lapse if any was not unusual as the woman was past 70 and it was apparently her husband who had all along been managing the property and affairs in connection thereto and hence any inaccuracy on her part was not fatal to the basic case that she had purchased the property in the year 1960 and that the third defendant had started interfering with her possession and hence there were a series of cases between them, the present one being one more. The trial court has also rightly held that documents produced would speak for 23 themselves and any inconsistent statements made in oral evidence would not alter the written document. In other words, the plaintiff having purchased the property long prior to the defendants having allegedly acquired the same, in terms of Section 48 of the Transfer of Property Act, 1882, a right having been created in favour of the plaintiff by Vishnumurthy Rao and another, in respect of site no.11 in Survey no.21, they could not have conveyed the same property to another. And that any such subsequent conveyance was void.
The trial court has also referred to an earlier suit filed by the second defendant, Mani, who is said to be the vendor of the third defendant, and who is said to have filed a suit against the husband of the plaintiff, KN Nag, restraining him from interfering with his possession, in a civil suit in OS 2151/1989. There was a finding in that suit that Mani had not derived any title to the suit property as the original owners - who were said to be the common vendors of the plaintiff and the vendors of the third defendant, had already parted with their right to the property. And the said judgment had become final. It was significantly noted in the judgment in the said 24 suit in OS 2151/1989 that the sale deed of Jayadeva Prakash dated 6.9.1972, site no.11 was not covered. On the other hand, the sites that were shown were sites no. 10 and 13 to 18. Further, the third defendant had not produced the said deed before the trial court to demonstrate that the finding was incorrect. It is now sought to be produced as an additional document before this court, as already stated above.
Defendants no.1 and 2 had not appeared before the trial court as against the suit summons. Even defendant no.3, having filed a written statement had sought to tender evidence through her son, as power of attorney holder, and who was said to be an advocate by profession. It was stated by the said witness that the property had now been sold by his mother to a third party. It was noticed by the trial court that the witness was born in the year 1970 and therefore would not have had much personal knowledge of the transactions. This was also evident from the answers to pointed questions in the course of his cross examination. 25
It is on a close examination of the documents produced by the third defendant that the trial court has decreed the suit as prayed for.
In so far as the contention that the plaintiff had not disclosed the date of dispossession and on the other hand that the third defendant had exercise possession over the property through her predecessors in interest and by herself since the year 1972, may not be tenable. It was admittedly a vacant site till construction was said to have been commenced as claimed by the plaintiff as well as the appellant- third defendant and suits and counter suits came to be filed from the year 1988. The plaintiff's suit filed in the year 1993 for recovery of possession primarily, after the suit of the third defendant for permanent injunction in OS 2781/ 1990 was decreed, was certainly not barred by limitation, as held by the apex court and this court in several of the decisions cited herein above. The consistent ratio laid down in similar circumstances as in the present case on hand , is in favour of the plaintiff.
26
In so far as the contention that the contention that the legal representatives of deceased defendant no. 1 not having been brought on record before the trial court, on the demise of defendant no.1, is concerned as rightly pointed out by the learned counsel for the plaintiff, Order XXII Rule 4 (4) CPC does provide that the suit can be proceeded with in the absence of any such legal representatives if the deceased defendant had not contested the suit. The provision reads as follows:
" (4) The court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place."
In so far as the applications now filed in the appeal seeking to produce additional documents and evidence, as also the application for amendment of the written statement are not maintainable, for 27 the reasons, as rightly pointed out by the learned counsel for the plaintiff. Even if the same are allowed, on the slim ground that it may advance justice , in the appellant being in a position to open up an area of controversy, hitherto not addressed- the third defendant is hardly in a position to overcome a basic flaw in the title of the defendant that can hardly be cured. It is also evident from a plain perusal of the copy of the sale deed dated 6.9.1972, (now sought to be produced as an additional document) in favour of Jayadeva Prakash does not include site no.11, which is the site in dispute.
Accordingly, the appeal lacks merit and is dismissed. No order as to costs.
Sd/-
JUDGE KS/nv*