Karnataka High Court
Bashasab S/O. Adamsab Havaldar vs Sri. Babusab @ Babulalsab S/O. Rajesab ... on 29 July, 2022
Author: B.M.Shyam Prasad
Bench: B.M.Shyam Prasad
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RFA No.100432 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD
BENCH
DATED THIS THE 29TH DAY OF JULY, 2022
PRESENT
THE HON'BLE MR JUSTICE B.M.SHYAM PRASAD
AND
THE HON'BLE MS.JUSTICE J.M.KHAZI
R.F.A.NO.100432 OF 2018 (DEC/INJ)
BETWEEN:
1. BASHASAB S/O. ADAMSAB HAVALDAR,
AGE:72 YEARS, OCC:AGRICULTURE,
R/O.KORUR ONI, LINE BAZAR,
DHARWAD, DIST:DHARWAD-580001
2. SMT BIBIJAN W/O. BASHASAB HAVALDAR
AGE:61 YEARS,
OCC:HOUSEHOLD AND AGRICULTURE,
R/O. ,KORUR ONI, LINE BAZAR,
DHARWAD, DIST:DHARWAD-580001.
...APPELLANTS
(BY SRI. J. S. SHETTY, ADVOCATE)
AND:
1. SRI. BABUSAB @ BABULALSAB
S/O. RAJESAB ANKALAGI
ANNAPURNA
CHINNAPPA AGE:59 YEARS, OCC:COOLIE,
DANDAGAL
Digitally signed by
R/O. VENKATAPUR,
ANNAPURNA CHINNAPPA
DANDAGAL
Location: HIGH COURT OF
KARNATAKA, DHARWAD
TQ AND DIST:DHARWAD-580001
BENCH, DHARWAD.
2. SMT MUGUTAMMA
W/O. BAPUSAB BETASUR
AGE:57 YEARS,
OCC:HOUSEHOLD WORK,
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RFA No.100432 of 2018
R/O. VENKATAPUR,
TQ AND DIST:DHARWAD-580001
3. SMT FARIDA
W/O. MOHAMMEDSAB ANKALAGI
AGE:55 YEARS,
OCC:HOUSEHOLD WORK,
R/O.GARDEN PETH,
P B ROAD, HUBBLLI-580001
4. PARVINSA
D/O. MOHAMMEDSAB ANKALAGI
AGE:28 YEARS, OCC:STUDENT,
R/O.GARDEN PETH,
P B ROAD, HUBBLLI -580001.
5. SMT. SANTAVVA KOM SAIDEPPA MADANABHAVI
AGE: 65 YEARS, OCC: AGRICULTURE,
R/O. VAMAN APARTMENT,
2ND CROSS, SADHANKERI, DHARWAD
6. KASTURI KOM BASAPPA BELLIGATTI,
AGE: 32 YEARS, OCC: HOUSEWORK,
R/O. RAMANAGAR, ATTIKOLLA, DHARWAD.
7. RAYANAGOUDA
S/O. DYAMANAGOUDA KUMAR DESAI,
AGE: 62 YEARS, OCC: AGRICULTURE,
R/O. VAMAN APARTMENT,
2ND CROSS, SADHANKERI, DHARWAD
RESPONDENTS 5 AND 6 ARE
REPRESENTED BY P.A. HOLDER
RESPONDENT NO.7.
...RESPONDENTS
(BY SRI. SHIVASAI M PATIL, ADV., FOR R1;
SRI. D. A. BHANDEKAR &
SRI. RAJSHEKHAR I. SAVADATTI, ADV., FOR R2 TO R4;
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RFA No.100432 of 2018
SRI. MABEEN K. MANIYAR, ADV., FOR R5 TO R7)
THIS RFA IS FILED UNDER SEC. 96 OF CPC.,
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
DATED 30.08.2018 PASSED IN O.S.NO.241/2013
PASSED BY THE II-ADDITIONAL SENIOR CIVIL JUDGE,
DHARWAD BY ALLOWING THIS APPEAL.
THIS APPEAL COMING ON FOR ORDERS, THIS
DAY, B.M.SHYAM PRASAD, J., DELIVERED THE
FOLLOWING.
JUDGMENT
The appellants' suit in O.S.No.241/2013 on the file of the II-Additional Senior Civil Judge, Dharwad [for short, "the civil Court"] is dismissed by the impugned judgment dated 30.08.2018. The appellants' suit is for declaration of title to the land measuring 16 Acre 28 Guntas in Block No.129 situated at Garag Circle, Dharwad Taluk [which is hereafter referred to as "the subject property"] and for perpetual injunction against the first to fourth respondents.
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2. The appellants assert that they have purchased the subject property under two sale deeds dated 25.11.1996 and 07.01.1999; the first appellant has purchased 01 Acre 28 Guntas under the sale deed dated 25.11.1996 and the second appellant has purchased the remaining extent of 15 Acres under the sale deed dated 07.01.1999. The revenue entries for these corresponding extents are mutated in their favour vide M.E.No.1909 and M.E.No.1967. The sale deeds are executed by the first respondent, with the second respondent, not only for himself but also for third and fourth respondents as they have duly executed power of attorney in his favour.
3. The appellants further assert that these respondents, notwithstanding the sale deeds and consequent revenue entries in their favour, are disturbing with their use and possession of the subject property relying upon mutation entry in MR.H-14 obtained by them on 28.01.2013 behind their back. Insofar as their possession of the subject -5- RFA No.100432 of 2018 property, the appellants assert that they were put in possession in part performance of agreement executed prior to the aforesaid sale deeds.
4. The first to fourth defendants have resisted the suit contending inter alia that they and Sri. Sankappa S/o. Karabasappa Madanabhavi/his legal heirs are entitled to the subject property as owners and tenants. After the death of Sri. Sankappa, the revenue records continued in favour of his son Sri. Sadeppa. After the demise of Sri. Sadeppa, his wife and daughters have continued in possession. These respondents have referred to certain revenue proceedings leading to writ petition in W.P.No.31075/1996 as also original proceedings in O.S.No.545/2009 on the file of the I-Additional Civil Judge, Dharwad to refute the appellants' case.
5. The Civil Court, while answering Issues such as whether the appellants prove their title and possession of the subject property and interference -6- RFA No.100432 of 2018 by first to fourth respondents, has also considered the Issues such as whether the suit is bad of non- joinder of parties (Issue No.4). The Civil Court in answering Issue No.4 has opined that Smt. Shantavva and her daughter, Mrs. Kasturi W/o. Basappa Belligatti, and another (the fifth to seventh respondents) have been ascertaining tenancy rights over the subject property and their claim is pending before the Tribunal. These respondents have not been arrayed as defendants and in their absence, there cannot be any adjudication in favour of the appellants. The Civil Court has also opined that the sale deeds in favour of the appellants would be subject to decision of the Competent Authority on the application filed by the seventh to eighth respondents in Form No.7A of the Karnataka Land Reforms Act (for short "KLR Act").
6. Sri J. S. Shetty, the learned counsel for the appellants, submits that the Competent Authority has rejected the fifth to seventh respondents' -7- RFA No.100432 of 2018 application in Form No.7A of the KLR Act even prior to the commencement of the suit. The order of the Competent Authority in this regard has attained finality as the same is not called in question. The appellants, in view of the settled law that a suit cannot be dismissed for non-joinder of parties unless such parties are necessary parties, and because the defendants-respondents did not seriously contest the dismissal of the application in Form No.7A of the KLR Act, did not produce the orders of the Competent Authority. These circumstances i.e., the non- production of the Competent Authority's order and non-arraying of fifth to seventh respondents [tenants], would only be a formal defect and cannot impede adjudication of the crucial question whether the first to fourth respondents, who have executed the sale deeds for the subject property in favour of the appellants, could deny the appellants' title of possession.
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7. Sri J. S. Shetty canvasses that these circumstances could demonstrate that there are formal defects in the plaint and therefore, the appellants have filed an application under Order XXIII Rule 3 of CPC [IA No.1/2020] for leave to withdraw the suit with liberty to file a fresh suit for a complete adjudication of the dispute over title to the subject property despite the sale deeds.
8. Sri. Shivasai M Patil leading the learned counsel for the contesting respondents argues in support of the Civil Court's impugned judgment and against the application filed under Order XXIII Rule 3 of CPC. He rebuts the submission that the tenancy claim is adjudicated by the Competent Authority. The learned counsels submit that in the absence of necessary material in this regard, and even before this Court, neither the application under Order XXIII Rule 3 of CPC can be entertained nor the grievance against the impugned judgment and decree be sustained.
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9. The point for consideration in the light of the rival submissions and reasons assigned by the Civil Court, would be:
Whether the impugned judgment should be sustained without entertaining the application filed under Order XXIII Rule 3 of CPC and if the impugned judgment cannot be so sustained, what should this Court's order be in the circumstances of the case.
10. Generally, a Court will not dismiss a suit on the ground of non-joinder of parties unless such parties are necessary parties. The provisions of Order I Rule 9 with its proviso makes this position rather indisputable. However, the Civil Court, without examining the salience of this requirement, has dismissed the appellants' suit holding that in the absence of the tenants-respondents (the fifth - seventh respondents), the dispute between the appellants and other respondents cannot be adjudicated. Significantly, the alleged tenants-
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RFA No.100432 of 2018 respondents are now impleaded in this appeal as the fifth to seventh respondents.
11. The Civil Court has proceeded in the premise that the application filed by the tenants/respondents is pending consideration before the Competent Authority under the KLR Act, but it is now contended that such application is adjudicated finally even before the commencement of this suit. In support of the bona fides for not producing the same in the proceedings before the Trial Court, it is asserted that the first to fourth respondents did not contest the suit on the ground that such proceedings are still pending consideration.
12. This Court must also opine that the crucial question viz., if the first and fourth respondents have indeed transferred their title to the subject property in favour of the appellants under certain sale deeds and if the tenants-respondents' claim is rejected by the competent authority, would
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RFA No.100432 of 2018 the appellants be entitled to title of relief of declaration and permanent injunction, is not considered. Without this question being considered with due opportunity to all, including tenants- respondents, there will not be complete and final adjudication, which would be necessary for vindication of title and possession of the subject property as asserted by the parties.
13. Therefore, the impugned judgment cannot be sustained. Admittedly, all the parties to the proceedings are now on record in this appeal, and this definitely cures any defect in the suit because the tenant-respondents [the fifth to seventh respondents] are not arrayed as defendants in the suit. It would be appropriate, given the nature of the dispute, to restore this suit for reconsideration on merits with due opportunity instead of allowing the application filed for withdrawal of the suit with leave to file a fresh suit.
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RFA No.100432 of 2018
14. This Court must also, while remanding the suit back for reconsideration, observe that the appellants would be entitled to file a formal application for impleading the fifth to seventh respondents as additional defendants in the suit and the same must be considered favourably by the Civil Court in the light of the fact that these respondents are impleaded before this Court. This Court must also observe that when an application for impleading is allowed, the parties must also be permitted to file further pleadings for complete adjudication. The parties must appear before the Civil Court without further notice on a particular date and assist and the co-operate with the Civil Court in expeditious disposal of the suit in a time frame. In the light of the afore, the following:
ORDER [a] The appeal is allowed in part and the impugned judgment dated
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RFA No.100432 of 2018 30.08.2018 is set-aside and the suit is restored for reconsideration on merits with the principles as aforesaid.
[b] The parties are directed to appear before the Civil Court without further notice on 12.09.2022 and they shall assist and co-operate with the Civil Court in expeditious disposal of the suit.
[c] The Civil Court shall also endeavour to dispose of the matter on merits within a period of nine months from the date of the first appearance.
No costs.
Sd/-
JUDGE Sd/-
JUDGE YAN