Karnataka High Court
Sri. S V Somashekar vs Sri. Siddaramaiah on 26 March, 2025
Author: K.Natarajan
Bench: K.Natarajan
1 RFA NO.1246/2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
REGULAR FIRST APPEAL NO.1246 OF 2019(DEC/INJ)
BETWEEN:
SRI. S. V. SOMASHEKAR
S/O LATE VENKATAPPA,
AGED ABOUT 66 YEARS,
R/AT SHIVAPURA VILLAGE,
PEENYA POST,
BENGALURU-560058.
...APPELLANT
(BY SRI. RAJESWARA P. N. ADVOCATE)
AND
1. SRI. SIDDARAMAIAH
S/O LATE MUNICHIKKAIAH,
AGED ABOUT 66 YEARS,
R/AT SUNKADAKATTE VILLAGE,
MAGADI ROAD, BENGALURU-560091.
2. SRI B.S.MARISWAMAPPA
S/O LATE SHANKARAPPA,
AGED ABOUT 61 YEARS,
3. SRI B.S.NEELAKANTA
S/O LATE SHANKARAPPA,
AGED ABOUT 59 YEARS,
RESPONDENT NO.2 AND 3 ARE
R/AT NO.36/1, OBAIAH LANE,
AKKIPET, BENGALURU-560053
ABDUL KAREEM SAB
SINCE DEAD BY LRS.
2 RFA NO.1246/2019
4. M.D.SAMIULLA,
S/O LATE ABDUL KAREEM SAB,
AGED ABOUT 63 YEARS,
5. M.D ZABIULLA
S/O LATE ABDUL KAREEM SAB,
AGED ABOUT 56 YEARS,
6. M.D.RASIULLA
S/O LATE ABDUL KAREEM SAB,
AGED ABOUT 49 YEARS,
7. MUJEEBA
D/O LATE ABDUL KAREEM SAB,
AGED ABOUT 61 YEARS,
8. SHAHEEN TAJ
D/O LATE ABDUL KAREEM SAB,
AGED ABOUT 59 YEARS,
9. SAYEDUNNISSA
D/O LATE ABDUL KAREEM SAB,
AGED ABOUT 51 YEARS,
10 . NASREEN TAJ
D/O LATE ABDUL KAREEM SAB,
AGED ABOUT 51 YEARS,
1(A) TO 1(G) ALL ARE
R/AT NO.2, II CROSS, 4TH MAIN,
M.K.COMPUND, A.D.HALLI,
BENGALURU-560079
11 . SRI SHYAMSUNDAR
S/O H.NARAYANA RAO,
AGED ABOUT 68 YEARS,
R/AT NO.39/125, VIJAYANAGAR,
BENGALURU-560040
12 . MOHAMMED RAFFEQ
S/O AZEEM SAB,
AGED ABOUT YEARS,
R/AT NO.7-32,12TH MAIN,
3RD BLOCK, RAJAJINAGAR,
3 RFA NO.1246/2019
BENGALURU-560010
13 . SMT. NIKITH PARVEEN
W/O KHAJA MOHIDDIN ABID,
AGED ABOUT 55 YEARS,
R/AT SABJAN STORES, B.H.ROAD,
BHADRAVATHI, SHIMOGA DISTRICT.
14 . DR. MOHAMOOD ALTAF HUSSAIN
S/O HUSSAIN PEERAN,
AGED ABOUT 65 YEARS,
R/AT NO.732, 12TH MAIN,
3RD BLOCK, RAJAJINAGAR,
BENGALURU-560010
15 . SRI MONOHAR RAMACHANDRA MAHALE
S/O RAMACHANDRA V. MAHALE,
AGED ABOUT 65 YEARS,
R/AT NO.4/8, 1ST FLOOR, 1ST CROSS,
OKALIPURAM, BENGALURU- 560021
..RESPONDENTS
(BY SRI.M. R. RAJAGOPAL, SR. COUNSEL FOR
SRI. ABHINAY Y. T., ADVOCATE FOR R2;
SRI. C. SHANKAR REDDY, ADVOCATE FOR R1(ABSENT)
SRI. K. SHIVAJI RAO, ADVOCATE FOR R3;
SRI. H. R. SHRIDHARAMURTHY, ADVOCATE
FOR R5, R6, R8 AND R9;
SRI. TAJUDDIN, ADVOCATE FOR R13;
R4, R7, R10, R15 ARE SERVED;
V/O DATED 24.06.2024 NOTICE TO
R11, R12 R14 ARE H/S;
SRI. K. VIJAYAKUMAR, ADVOCATE FOR
PROPOSED R16, R17
AND R18 AND ALSO FOR R2;
FOR PROPOSED R19 SERVED)
THIS REGULAR FIRST APPEAL IS FILED UNDER SEC.96
OF CPC., 1908 PRAYING TO (I) CALL FOR RECORDS IN
O.S.NO.4166/2004 ON THE FILE OF THE HON'BLE VII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
4 RFA NO.1246/2019
CITY (CCH-19); (II) SET ASIDE THE JUDGMENT AND DECREE
DATED 23.02.2019 PASSED BY THE HON'BLE VII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY (CCH-19)
IN O.S.NO.4166/2004.
THIS REGULAR FIRST APPEAL HAVING BEEN HEARD
AND RESERVED FOR ORDERS ON 12.02.2025 THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE K.NATARAJAN
RESERVED FOR ORDERS ON: 12.02.2025
PRONOUNCED ON: 26.03.2025
CAV JUDGMENT
This appeal is filed by the appellant/plaintiff under section 96 of CPC for setting aside the judgment and decree passed by the VII Additional City Civil and Sessions Judge Bangalore in OS No.4166/2004 for having dismissed the suit of the plaintiff dated 23.02.2019.
2. Heard the arguments of learned counsel for the appellant and learned senior counsel for the respondent No.2 and other respondents.
3. The ranks of the parties before the trial court are retained for the sake convenience.
5 RFA NO.1246/2019
4. The case of the plaintiff before the trial court is that the plaintiff filed a suit for relief of declaration;
(i) That the act of defendant No.1 in claiming any share in Survey No.73 of Srigandhadakaval, Sunkadakatte village, Magadi Road, Yashwanthapura Hobli, Bangalore North Taluk under, sale deed dated 18.01.1963, the decree passed in O.S.No.542/1970 and orders passed in FDP No.39/1982 and also dismissed the suit in OS.No.5244/1988 are 'non est' in law and does not confer any right on the defendant Nos.2 and 3 or their predecessor.
(ii) For declaration that the decree passed in OS No.553/1989 and in OS.No.1466/1992 and related appeals in RFA Nos.79 and 80 of 2002, are not binding on the plaintiff or affecting their interest in any manner in respect of property guidelines of survey No.73, Srigandhadakaval, Sunkadakatte village, Magadi Road, Yashwanthapura Hobli, Bangalore North Taluk, measuring 8 acres 3 guntas situated in middle of the old survey No.73 fallen to the share of Munichikkaiah and consequential relief of injunction.
5. The contention of the plaintiff is that the dry land bearing survey No.73, Srigandhadakaval village, totally 6 RFA NO.1246/2019 measures 35 acres and 20 guntas belongs to three persons namely (1) Muniswamy S/o. Byriga, (2) Era S/o Doddaiah and (3) Munishami S/o Ramaiah. These persons have divided the lands and middle portion which was fallen to the share of Munishami S/o Ramaiah measuring 14 acres. Munishami's son Munichikkaiah inherited the said property and Munishami who is son of Ramaiah portioned the said property somewhere in the year 1960. Ramaiah and his brother Kempanna had partitioned their ancestral property in the year 1904-1909. The said Kempanna had a son by name Chikkaveerappa. His wife Poojamma succeeded to the ancestral properties of Chikkaveerappa. After the death of Chikkaveerappa who died issueless, his wife Poojamma sold her share in the joint family properties to her own brother Pillappa, who in turn sold the same to one B.M.Shankarappa under a registered sale deed dated 18.01.1963. The said B.M.Shankarappa is none other than the father of defendants No.2 and 3 herein.
6. It is further contended that the said B.M.Shankarappa filed a suit for partition of his 1/6th share purchased by him out of 35 acres 20 guntas from Pillappa in O.S.No.542/1970. Munichikkaiah i.e., father of defendant No.1 filed a suit in O.S.No.5244/1988 for declaration that the sale deed dated 7 RFA NO.1246/2019 03.06.1953 executed by Poojamma in favour of her brother Pillappa is a sham document and thereby the decree passed in O.S.No.542/1970 based on the said sale deed is null and void and also sought for permanent injunction. .
7. It is further contented that in pursuance to the judgment and decree in OS No.542/1972 for having decreed the suit and filed FDP No.30/1982 and further RFA No.79 and 80 of 2002 were preferred by Siddaramaiah and the plaintiffs herein. The preliminary decree passed on 10.10.1977 has now become 26 years old and incapable of being executed and the whole process is barred by time. It is also contended that proceedings initiated by B.M.Shankarappa has become infructuous and is barred by time. After the death of Munichikkaiah, his son Siddaramaiah, the defendant No.1, herein was interested in putting the suit schedule property to urban use and in a process to involve others financially also. In that exercise, executed joint power of attorney in favour of plaintiffs No.1 and 2 under General Power of Attorney dated 08.10.1992 with an understanding that plaintiffs should invest money and develop the property and agreements to sell the entire lands to plaintiff Nos.1 and 2 executed on 05.04.1983, 04.12.1987 and 12.09.1992. The plaintiffs in pursuance of 8 RFA NO.1246/2019 same acquired vested right in the suit schedule property and also with firm understanding with Siddaramaiah, the defendant No.1 herein.
8. It is further contended that plaintiff Nos.1 and 2 had formed a layout in respect of this entire suit schedule property and various sites have been sold to various purchasers either under sale deeds or under irrevocable power of attorney to a large number of people and 150 sites have been formed in the suit schedule property. This is in full knowledge of defendant No.1 and also the other defendants herein. There is existence of houses, industries put up by the concerned purchasers with electricity and water connection in respect of sites formed in suit schedule property. Pillappa, the brother of Poojamma never derived any right to the property and thereby never transferred any right to father of defendants No.2 and 3, B.M.Shankarappa. The said B.M.Shankarappa also not in possession of any portion of the property in Survey No.73 and further, O.S.No.5244/1988 had been filed by father of defendant No.1, Munichikkaiah challenging the entire proceedings in O.S.No.542/1970. Considering that the property is slipping from their hands, defendant No.2 filed a suit in O.S.No.553/1989 against defendant No.1 and also 9 RFA NO.1246/2019 plaintiff Nos.1 and 2 herein in O.S.No.1466/1992. Prior to that, the very defendant Nos.2 and 3 filed a suit for injunction against plaintiff Nos.1 and 2 herein and one Krishnappa in respect of unascertainable property. The plaintiffs Nos.1 and 2 have also filed O.S.No.2327/2003 for enforcement of agreement to sell in their favour executed by defendant No.1, the large number of persons having similar rights to various sites, houses, buildings, existing over suit schedule property, since the plaintiffs being numerous and the cause of action being common, it is impracticable to file separate suit by each site holders and thereby plaintiffs have filed the suit commonly in a representative capacity involving the provisions on that behalf under the CPC., and prayed that plaintiff Nos.1 and 2 allowed them to represent and their interest commonly in this common clause / representative suit, which also avoids multiplicity of suit in different Courts and possibility of divergent and conflicting findings.
9. It is further contended that the defendants Nos.2 and 3 brain washed defendant No.1 and managed to see that defendant No.1 withdraw RFA.No.79 and 80 of 2002 abandoning O.S.No.5244/1988 and same does not bind the plaintiffs and their rights vested in them. The plaintiffs 10 RFA NO.1246/2019 continues to be in possession of the suit schedule property, as per the High Court order dated 03.09.2009 passed in RFA.No.79 and 80/2002 had dismissed the appeals and not brought in any change of status or possession and thereby the said order has not affected the plaintiffs possession. The cause of action for this suit arose when defendant No.1 had withdrawn the suit in O.S.No.5244/1988 and from the date of orders passed in RFA.No.80/2002 on 27.08.2003 thereby, plaintiffs constrained to file this suit for the relief of declaration to declare the Judgment and Decree stated above has not been binding on the plaintiffs and their interest. Hence, prayed for decreeing the suit.
10. In pursuant to the summons issued by the trial court, the defendant No.1 appeared through counsel. Also defendant Nos.2 and 3, also appeared through their counsel. The defendant No.1 filed written statement, accepting that the suit filed by the plaintiff is hit by the principles of Resjudicata and plaintiffs have obtained his signatures on blank papers towards loan transaction and made use of the same as agreements of sale and power of attorney. Later, having come to know that the plaintiffs have misused the signatures taken on blank papers, he has cancelled the power of attorney and 11 RFA NO.1246/2019 also agreement of sale. Therefore, the said agreement of sale does not confer any right, title, interest or possession over the suit schedule property to the plaintiffs. It is further contended that Deputy Commissioner's Order in pursuant of Judgment and Decree passed in O.S.No.542/1970, neither he, nor his father could have executed any documents and the documents produced are all created to deprive the interest of defendants Nos.2 and 3, in respect of their property purchased by their father B.M.Shankarappa under registered sale deed. Hence, prayed for dismissing the suit.
11. Further, defendants Nos.2 and 3 being children of B.M Shankarappa filed common written statement asserting that, the decree obtained in O.S.No.542/1970 filed by their father has become final and conclusive and final decree drawn and registered. They are in possession of 5 acres 36 & 2/3 guntas of land in suit survey No.73 as per the division affected by Deputy Commissioner and they were put in possession of the same. The father of defendant No.1, filed O.S.No.5244/1988 challenging the said Judgment and Decree passed in O.S 542/1970 as null and void was withdrawn. Thereby, the decree passed in favour of B.M.Shankarappa cannot be re-opened. The plaintiffs are permanently restrained 12 RFA NO.1246/2019 by virtue of decree passed in O.S.No.553/1989 and O.S.No.1466/1992. The Judgment and decree passed in the above two suits have become final and conclusive by virtue of Judgment passed by the High Court of Karnataka in RFA Nos.79 and 80 of 2002. It is further contended that the suit filed by the plaintiff is barred by law of Limitation. Neither Munichikkaiah nor his son Siddaramaiah i.e., defendant No.1, could have executed any document in favour of the plaintiffs in pursuance of conclusion of the proceedings in O.S.No.542/1970. The reliefs sought by the plaintiff are hopelessly barred by law. These defendants are in possession of 5 acres 36 & 2/3 guntas in suit survey No.73 and hence prayed for dismissal of the suit.
12. Based upon the rival contentions, the trial court framed the following issues, additional issues as under;-
1. Whether the plaintiffs prove that the decree dated:10.10.1977 regarding partition in O.S. No.542/1970 on the file of the Learned 2nd Addl.Munsiff, Bangalore or order dated:21.1.1988 passed in FDP No.39/1982 on the file of the Learned City Civil Judge, Bangalore, regarding partition were obtained by playing fraud / mis-representation and thereby it is non est in law?
2. Whether the plaintiffs prove that the dismissal of O.S. No.No.5244/88 on the file of the learned City Civil Judge, Bangalore, is not 13 RFA NO.1246/2019 in accordance with law and thereby it is non est?
3. Whether the plaintiffs further prove that the judgment and decree dated:
30.11.2001 passed in O.S. No.553/1989 and O.S. No.1466/92 on the file of the Learned City Civil Judge, Bangalore, are obtained by playing fraud / misrepresentation and thereby they are not binding on the plaintiffs?
4. Whether the plaintiffs further prove that the out come of RFA.No.79/2002 and RFA No.80/2002 on the file of the Hon'ble High Court of Karnataka would not bind on the plaintiffs nor affect their interest in the schedule land in any manner?
5. Whether the plaintiffs further prove that they are having right, title and interest and possession over the suit schedule property as averred in the plaint?
6. Whether the suit is well within time?
7. Whether the suit value and court fees paid on the plaint by the plaintiffs are not proper?
8. Whether the plaintiffs have no cause of action for filing the suit, as contended in para Nos.27 and 28 of the written statement of defendant Nos.2 and 3?
9. Whether the plaintiffs are entitled for the relief claimed in the suit?
10. What order or decree?
ADDL.ISSUES DT:29.5.2012
1. Whether the 1st defendant proves that this court has no pecuniary as well as territorial jurisdiction to entertain the suit?
2. Whether the suit is barred by time?
ADDL.ISSUE DT:19.12.2018
1. Whether suit is hit by the principles of Res-judicata?
14 RFA NO.1246/2019
13. In order to prove the case of the plaintiff, the plaintiff No.2 was examined as PW1 and got marked 34 documents and on behalf of defendant Nos.2 and 3, the defendant No.3 was examined as DW2 and got marked 26 documents out of which Ex.D1 to D3 were not marked during the cross examination of PW1 and remaining documents were marked by DW1 in his evidence. After closing both side evidences, hearing the arguments, the trial court answered issue Nos.1 to 6 in negative, issue No.7 in affirmative and issue Nos.8 and 9 in negative. Additional issue No.1 in negative and additional issue No.2 in affirmative and one more additional issue in affirmative and finally dismissed the suit of the plaintiff. Being aggrieved by the same, plaintiffs have filed this appeal before this court.
14. The counsel for the appellant contented that the trial court committed error in dismissing the suit and has not properly appreciated the documents on record. The trial court also committed error of law in answering the issues against the plaintiff. It has also overlooked the prayer 'F' incorporated by the plaintiffs as per the order dated 01.02.2009. The judgement without framing the relevant issues is erroneous. The trial court not considered the documents and depositions 15 RFA NO.1246/2019 and relevant evidences and arrived at wrong conclusions. Hence, required for interference by this court. Learned counsel further contended that the trial court has failed to appreciate the fact that the FDP proceedings initiated on earlier occasions were not taken to the logical conclusions. In fact, there is no demarcation of boundaries by metes and bounds that the withdrawal of FDP No.39/1982 and withdrawal of the appeal before the KAT, the decree dated 10.10.1977 in O.S.No.542/1970 remained a paper decree. In the absence of demarcation, the boundaries metes and bounds, the defendant has no right, title or interest over the property. A fraud has been played by the defendants respondents in getting the revenue entries by showing the demarcation by metes and bounds. The trial court also failed to appreciate that the Poojamma had no right, title, interest over the property as she was female member prior to 1956 when Hindu Succession Act came into force, she has no right in the co-parcener of the property. Therefore, the sale deed dated 3.6.1953 did not confer any right to the purchasers from Poojamma. The trial court, not looked into the primary records and there was no partition earlier, is not correct.
16 RFA NO.1246/2019
15. It is further contended that while answering issue No.3, the trial court failed to appreciate the proceedings in O.S.No.542/1970 and FDP No.39/1982 and in O.S No.553/1989 and also in O.S.No.1466/1992. Thus the fraud is played before the court. The claim of the right though Poojamma is traceable from the decree dated 10.10.1977 in OS.No.542/1970, there was no final decree. Therefore, the consequential proceedings in O.S.No.553/1989 or O.S.No.1466/1992 or RFA No.79 and 80 of 2002 have no bearing on the rights of the appellant. The trial court has committed error that it is not the case of the appellant that they have sold the land acquired through power of attorney and agreement. They only stated that they formed layout and sites were sold to various persons. Therefore, the suit should not have been dismissed. In the absence of the final decree proceedings and the rights of the parties, the defendants were not at all entitled to interfere with the rights of the appellant. The trial court committed error in answering an additional issue No.2, as the suit is barred by time. The cause of action arose recently when defendant No.1 withdraw O.S.No.5244/1988 and from RFA.No.80/2002 on 27.8.2003. The suit was filed in 2004 well within the time. He further contended that the additional issue No.6 and additional issue No.2 were answered without referring to any articles of the 17 RFA NO.1246/2019 schedule to the Limitation Act. Answering issue No.1 framed on 19.12.2018, the suit is barred by principles of res-judicata. On the basis of the decree, at Ex.D12 in OS No.553/1989 and O.S.No.1466/1992 has no barring on the plaintiff. The suit is not barred by the principles of resjudicata. It is further contended that the trial court has not taken into consideration, the decree passed in O.S.No.2327/2003 produced in Ex.P26 and a permanent injunctions obtained against Siddaramaiah. Neelakanta who wanted to implead himself has suffered order of rejection for impleading. The matter was taken before the High Court in WP.No.4013/2008, the application was rejected. Therefore, the question of considering the judgement and decree passed by the court resulted in traversty of the justice.
16. The trial court ignored the evidence on record and submission made by the advocate and not applied his mind, while passing the judgement. Also contended that the orders in FDP No.30/1982 has been passed directing the Deputy Commissioner to divide the property. The order of the Deputy Commissioner has been challenged in appeal No.23/1995 which was allowed. The KAT set aside the order of Deputy Commissioner and remitted the matter back. Later, as on the date of remark, the order passed by the KAT in FDP 18 RFA NO.1246/2019 No.30/1982 was already been withdrawn on 6.1.1985 itself. The Deputy Commissioner did not pass any fresh order for division of property by metes and bounds of 5 acres and 36 & 2/3 guntas and no fresh divisions were done in FDP No.96/2003. The order dated 21.01.1988 passed by the Deputy Commissioner by suppressing the fact that the final decree passed in FDP 96/2003 dated 25.8.2004 is non est, non-existent order of the Deputy Commissioner and no reliance can be placed upon the same. The trial court also was wrong in holding that the inter parties judgements do not operate the res-judicata. The earlier decision proceeded on the assumption that Poojamma succeeded the property, where she could not have succeeded the property as a female member. Hence, prayed for allowing the appeal.
17. Learned counsel also contended that the properties were already formed layout and sold to various persons and all the persons cannot join together and file separate suits in order to protect the interest of the purchasers, the plaintiff filed the suit in the representative capacity and the same was not properly appreciated by the trial court. Hence, prayed for allowing the appeal. Learned counsel also shown a genealogical tree of the parties. In support of his contention, 19 RFA NO.1246/2019 the learned counsel for the appellant relied upon the judgement as under,
1. (2010) 10 SCC 677 in the case of Ritesh Tewari and Another Vs. State of Uttar Pradesh & others.
2. (2011) 14 SCC 770 in case of State of Punjab Vs. Davinder Pal Singh Bhullar and others.
3. (2024) 3 SCC 563 in the case of Manoj Kumar Vs. Union of India & others).
4. (1963) 2 Mys LJ 346 in the case of Muppanna Halappa Vs. Channappa Halappa and Another.
5. (2007) 4 SCC 221 in the case of A.V.Papayya Sastry and others Vs. Govt of A.P. & others.
6. (2012) 11 SCC 574 in case of Badami (Deceased) by her Legal representatives Vs. Bhali.
7. (2019) SCC online KAR 3837 in the case of N.Krishna Reddy (Since Deceased) by Lrs & another Vs. C.K.Varkey & others).
8. (2011) 5 SCC 142 in case of Chairman-Cum-
Managing Director, Coal India Limited and others Vs. Ananta Saha and others.
9. (2011) 3 SCC 436 in the case of State of Orissa and another Vs. Mamata Mohanty.
20 RFA NO.1246/2019
10. (1994) 1 SCC 1 in the case of S.P.Chengalvaraya Naidu (Dead) by Lrs. Vs. Jagannath (Dead) by Lrs. and others.
11. (2006) 7 SCC 416 in the case of Hamza Haji Vs. State of Kerala and another.
12. RSA No.5422/2009, passed by this Hon'ble Court at Dharwad Bench in case of Halagatti Shivappa @ Shivanand Vs. Ningappa & Another.
18. Per contra, learned senior counsel appearing for the respondent No.2, has supported the judgement and decree passed by the trial court and contended that the relief sought by the plaintiff for declaration to set aside the decree passed in O.S.No.542/1970 in the partition suit dated 10.10.1977 is to set aside and not binding and also judgement and decree passed in O.S.No.553/1989 and O.S.No.1466/1992 in relation to RFA No.79 and 80 by 2002 are not binding on the plaintiff and further restraining the defendant from interfering with the schedule property, even though the appeals filed by the appellants in RFA No. 79 and 80 of 2002 approached the Hon'ble Supreme Court and the SLP also was dismissed. Such being the case, the question of setting aside the said judgment which attained the finality does not arises. Learned senior counsel further contended that there is specific contention of 21 RFA NO.1246/2019 the parties that the land in survey No.73 is measuring 35 acres 20 guntas, belonging to three persons namely (1) Muniswamy S/o. Byriga, (2) Era S/o Doddaiah and (3) Munishami S/o Ramaiah and the property was divided into 3 portions and according to the plaintiff, the middle portion measuring 14 acres was fallen to the share of Munishami S/o Ramaiah which was inherited by his son Munichikkaiah and partitioned in 1960. The sale deed of Poojamma in favour of Shankarappa who is the father of defendant No.2 and 3 filed the suit for partition in O.S.No.542/1970 for partition of the half share in 1/3rd share of 35 acres 20 guntas. The said suit was decreed for 1/6th share i.e, 5 acres 36 &2/3 guntas. The same was attained finality in the FDP proceedings. Learned senior counsel also contended that the very suit of the plaintiff claiming as "representative" is not maintainable, as it is not filed in accordance with the procedure as per Order 1 Rule 8 of CPC. There is no permission obtained from the Civil Court for filing the representative suit. The basic principle is not followed, there is no notice issued in public through paper publication, calling for any objections or calling any other person to join in the suit as plaintiff. Therefore, the contention of the appellant counsel that the suit filed as "representative capacity"
cannot be acceptable.22 RFA NO.1246/2019
19. The learned counsel further contended that the PW1 admitted the relationship of the defendants in his cross examination that Munishami is having two children Siddaramaiah and Kempanna, the son of Siddaramaiah's son is Ramaiah. The property measuring 35 acres 20 guntas belonging to three children, the same is equally divided and it comes to 11 acres each. Poojamma sold the undivided share of her husband on 03.06.1953 to her brother Pillappa under Ex.P4. The said sale deed is not questioned which is 30 years old document, a presumption available in favour of the defendant, but the plaintiffs have challenged the subsequent sale deed dated 18.1.1963, after 10 years of the first sale deeds and only 2nd sale deed has been challenged. Ex.P4 is not questioned. Ex.P5 has been questioned in the suit, the half of 1/3rd share of Poojamma has been fallen to the share of Chikkaveerappa which was admitted by PW1. The admitted fact need not be true. The sale deed of Poojamma of the year 1953 is within the knowledge of Munichikkaiah. Ex.P8 was decreed in O.S.No.542/1970. The 1/6th share has been purchased by the Shankarappa from Pillappa and he has filed the suit for partition of 1/6th share, out of 35 acres 20 guntas. Aaccordingly, this partition suit was decreed. The sale deed of Poojamma of the year 1953 is within the knowledge of plaintiff 23 RFA NO.1246/2019 in the said suit. The relationship of Poojamaa with her husband is not denied and not challenged by the plaintiff. The family tree has been confirmed, the relationship is agreed and it was adjudicated in OS No.542/1970. The 1/6th share of 35 acres 20 guntas comes to 5 acres 37 guntas. After the decree in OS No.542/1970, FDP has been filed by metes and bounds. Learned senior counsel further contended that Siddaramaiah filed an application for impleading himself and filed an application under Order 1 rule 10 of CPC as per Ex. p14 which came to be allowed. He was permitted to participate in the proceedings. After passing and withdrawing in the FDP, Munichikkaiah filed a suit in OS No.5244/1988 which was dismissed on 18.3.2003 and it is further contended that the agreement of sale in favour of the plaintiff on measuring 4 acres 20 guntas and in favour of Somashekar is 2 acres, totally 6 acres 20 guntas of land, but the suit filed by the plaintiff for 8 acres 3 guntas of land. The boundaries in the agreement and plaint schedule are different from each other . One more agreement was executed as per Ex.P19. The plaintiff was having knowledge about filing of the suit in 1992 itself. The suit for specific performance and obtained decree for 6 acres 20 guntas, where the suit filed which is under challenge is 8 acres. The property claimed by the plaintiff is different from the suit 24 RFA NO.1246/2019 land. The Ex.P12 is the decree which was challenged before the High Court in RFA No.79 and 89 of 2002 which came to be dismissed, the SLP was also dismissed. The decree in OS No.553/1989 and 1466/1992 has been attained finally. The said judgement was delivered by full fledged trial and now it is prayed by plaintiff for setting aside the said judgement and is not binding on him is utterly barred by law. The suit could have been filed within 3 years as per section 53 of Limitation Act. Hence, prayed for dismissing the appeal.
20. Learned senior counsel also further contended as per the Order of the FDP court, the DC has demarked the property by sending the order to the ADLR. The ADLR independently divided the property, the order of the DC for bifurcating by the ADLR has not been challenged. Only the DC order has been set aside. Merely the DC order is set aside, the proceedings under section 144 of CPC attaining final stage and subsequently the order was obtained for registering the same in the stamp paper. Hence, prayed for dismissing the appeal. In support of his contention, the learned senior counsel for respondent No.2 relied upon the judgement as under;
1. (1996) 7 SCC 767 in the case of MD. Noorul Hoda Vs. Bibi Raifunnisa and others.25 RFA NO.1246/2019
2. (2009) 6 SCC 160 in the case of Abdul Rahim and others Vs. SK. Abdul Zabar and others.
3. AIR 1957 Madhya Bharat 173 in the case of Ganga Vishnu Vs. Nathulal and others.
4. 2015 SCC Online DEL 7350 in the case of Jhang biradari housing residents society Vs. Bharat Bhushan sachdeva and others,
21. In support of his contention, the learned counsel for respondent No.16 relied upon the judgement as under;
1. (2000) 6 SCC 359 in the case of Kunhayammed & others Vs. State of Kerala and another.
2. (2024) 1 SCR 11 in the case of Mary Pushpam Vs. Telvi Curusumary & Ors,
3. (2024) 2 SCR 326 in the case of Vasantha (dead) Thr. Lr Vs. Rajalakshmi @ Rajam (Dead) Thr. Lrs.
22. Having heard the arguments, perused the records, the point that arises for my consideration are;
1) Whether the suit of the plaintiff in the present form claiming as representative suit as per Order I Rule 8 of CPC is maintainable ?26 RFA NO.1246/2019
2) Whether the plaintiff proves that dismissal of suit in OS No. 5244/1988 is non est in the eye of law?
3) Whether the plaintiff proves the decree in OS No.553/1989, 1466/1992 obtained by fraud and hence the Judgement in RFA No. 79 and 80 of 2002 are not binding on the plaintiff?
4) Whether the plaintiff proves that they are having right over the schedule property?
5) Whether the suit is barred by limitation?
6) Whether the suit is hit by the principles of res judicata?
7) Whether the judgement of the trial court calls for any interference?
8) Whether the suit of the plaintiff in this form claiming to be representative suit is not maintainable as contended by the respondent counsel?
9) Whether the judgement of the trial court calls for interference?
23. Having heard the arguments and perused records and evidence adduced by the parties before the Trial Court On perusal of records, it reveals that father of defendant Nos.2 and 3, namely Shankarappa had purchased the property measuring 5 acres 36 2/3 guntas in the year 1963 from one Pillappa and the said Pillappa said to be purchased the property from one 27 RFA NO.1246/2019 Poojamma in the year 1953, who claimed that the said property was fallen to her from the share of her husband. It is also claimed that originally, the land in Sy. No.73 of Srigandada Kavalu measuring 35 acres 20 guntas was jointly purchased by (1) Muniswamy S/o. Byriga, (2) Era S/o Doddaiah and (3) Munishami S/o Ramaiah. As per their share, 1/3rd each was entitled by all three persons. Defendant Nos.2 and 3 claim equal share from 35 acres 20 guntas, which comes to 11 acres plus odd guntas and shared by all three persons equally which was undivided share. The middle portion of the property fallen to the share of Munishami, son of Ramaiah. The plaintiffs claim that Munishami, son of Ramaiah got 14 acres of land, whereas Muni Swamy, son of Byriga got 11 acres of land and on the southern portion son of Doddaiah got 10 acres on the northern side acres of land. Out of middle portion of 14 acres of land fallen to the share of Muni Swami, about 5 acres and 36 guntas have been sold to 3rd person one A.V. Subramanyam and remaining 8 acres was within the possession of the family of Muni Swamy. The said portion was devolved to his son Munichikkaiah, the father of respondent No.1-Siddaramaiah and two agreements of sale were entered into by plaintiffs and thereby, layout was formed and sold properties to third parties, whereas the claim of defendant Nos.2 and 3 is that the 28 RFA NO.1246/2019 property of 35 acres 20 guntas was originally, belonged to (1) Muniswamy S/o. Byriga, (2) Era S/o Doddaiah and (3) Munishami S/o Ramaiah and they had not equally divided the property. The undivided share of 1/3rd each was entitled by Munishami S/o Ramaiah and that was equally divided by his two sons, Siddaramaiah and Kempanna, about 5 acres 36 guntas each. The father of defendant No.1 i.e., Munichikkaiah (son of Siddarama) was entitled for 5 acres 36 guntas and Kempanna was entitled for 5 acres 36 guntas. The said Kempanna had a son by name Chikkaveerappa, whose wife namely Poojamma succeeded to the ancestral properties of Chikkaveerappa. The said Poojamma had no issues and hence, she sold the property to her brother Pillappa in the year 1953.
After 10 years, i.e. on 18.01.1963, the said Pillappa sold the property to Shankarappa, the father of defendant Nos.2 and 3. Since the original property was not divided, Shankarappa, the father of defendant Nos.2 and 3 filed a suit in O.S. No.542/1970 against Byrappa, Nanjappa, Munnichikkiah, who is the father of defendant No.1, Srinivasan and A.V. Subramanyam, the purchaser of the property from Munichikkaiah. The suit was contested and it was decreed by the civil Court on 10.10.1977 granting decree of 1/6th share to Shankarappa from undivided share of 5 acres 36 guntas in 29 RFA NO.1246/2019 survey No.73, thereby, Shankarappa, the father of defendant Nos.2 and 3, got 5 acres 362/3 guntas of the land. The said judgment was said to be attained finality. Subsequently, in the findings of the civil Court, defendant No.5-A.V. Subramanyam sold 14 acres of land to Munnichikkiah. In fact, the said 14 acres of land was already sold by Munichikkaiah to Subramanyam. It is seen from the synopsis produced by the learned counsel for the appellant that in fact, Munichikkaiah once again sold 1/6th share i.e. 5 acres 37 guntas of land to one Kambaiah on 26.03.1980. The learned Counsel for respondent Nos.2 and 3 has contended that Munichikkaiah (son of Muniswamappa and grandson of Siddaramaiah) is entitled for 5 acres 36 guntas out of 12 acres of land fallen to the share of their ancestor Munishami, son of Ramaiah and remaining 1/6th share i.e. half share was fallen to Chikkaveerappa (son of Kempanna and grand son of Munishami) was entitled for 5 acres 36 guntas and the same was derived by his wife Poojamma. There is no dispute in respect of other two shares, 1/3rd share fallen to the family of Muni Swami, son of Byriga and Ira son of Doddaiah. The dispute is between the children of Sidramanna and Kempanna, who are sons of Munishami son of Ramaiah. According to respondent Nos.2 and 3, out of 1/3rd 1 share in the original property, /6th share is fallen to 30 RFA NO.1246/2019 Siddaramanna and 1/6th share to Kemapanna. Therefore, 5 acres 36 guntas of land goes to Kempanna, the 2nd son of Munishami, and his son Chikkaveerappa and thereafter to Chikkaveerappa's wife Poojamma. This share was notionally divided into 1/3rd share and Munishamy, son of Ramaiah gets 11 acres plus guntas and it cannot be said that he is entitled for 14 acres of land who has taken middle portion of the Sy.No.73. There is no contract or agreement between three original owners i.e. Muni Swami son of Byriga, Era son of Doddaiah and Munishami son of Ramaiah. When there is no previous agreement for sharing the property by all of them as per the ratio stated by the learned counsel for the appellant cannot be acceptable, since there is no previous contract or agreement for sharing the ratio of 10 acres 14 acres and 12 acres respectively. Therefore, the question of contending that 14 acres of land fallen to the share Munishami, son of Ramaiah, cannot be acceptable.
24. The civil court in O.S. No.542/1970 has considered all these aspects namely 1/3rd share to all three shareholders or owners. Out of 1/3rd share which is fallen to the share of Siddaramanna and Kempanna, Kempanna's family gets 1/6th share and Siddaramanna's family gets 1/6th share. Considering the facts, the trial court has rightly decreed the suit by granting 31 RFA NO.1246/2019 1 /6th share to Shankarappa, the purchaser, who filed suit in O.S. No.542/1970 for partition and separate possession. The said decree passed on 10.10.1977 has attained finality. Therefore, the contention of the learned counsel for the appellant that the decree passed in the said suit is not binding on the plaintiffs or the plaintiff's vendors cannot be acceptable. The equation claimed by the learned counsel for the plaintiffs is unacceptable as it is not equal share for three owners. On the other hand, the learned Senior counsel for respondents has rightly contended that 1/6th share has fallen to the share of Kempanna and his son Chikkaveerappa and thereafter, his wife Poojamma got the property by way of inheritance. The contention of the learned counsel for respondents that a wife or daughter is not entitled for any share, etc., cannot be acceptable since the property was fallen to the share of husband of Poojamma and she got property through her husband and she has already sold the 1/6th share of undivided share in the property to her brother Pillappa in the year 1953 itself. The sale deed executed by Poojamma in favour of Pillappa has not been challenged by the plaintiffs or vendors of the plaintiffs' in title. But the plaintiff's have challenged only the sale deed of Pillappa in favour of Shankarappa executed in the year 1963.
32 RFA NO.1246/2019
25. When the sale deed of the year 1953 is not disputed, where Poojamma got her share through her husband and sold her husband's share to her brother in 1953, and after 10 years, the said property was sold by Pillappa to Shankarappa, who obtained decree in the suit in O.S. No.542/1970 filed against Muni chikkaiah, father of defendant No.1 and who is the vendor of the plaintiff, and the said decree has attained finality. It is the further case of the parties that after obtaining decree on 10.10.1977, the said Munichikkaiah said to be once again purchased 14 acres of land from A.V. Subrahmanyam in 1978, but Munichikkaiah having noted the fact of the judgment and knowing well that he is entitled only for 1/6th share out of 5 acres of 36 guntas of land, sold the same by sale deed dated 26.03.1980 to Kambaiah.
26. Therefore, once the suit was decided in 1977 and it is clear findings in the judgment passed by the trial Court that 1 Munichikkaiah's father entitled for /6th share and Shankarappa's vendor Pillappa who purchased from Poojamma got 1/6th share (i.e. from 5 acres 36 guntas), thereby, the said Munichikkaiah, father of defendant No.1, sold the property of his 1/6th share on 26.03.1980 to Kambaiah, thereby, there is no retention of any land by Munichikkaiah. As contended by the learned counsel for the appellant-plaintiff only the share fallen 33 RFA NO.1246/2019 to Munichikkaiah has already been sold to Kambaiah and thereby, there is no property retained or having possession of another 5 acres 36 guntas by the plaintiff. Since another 1/6th share was fallen to Poojamma, wife of Chikkaveerappa, who is son of Kempanna, knowingly, the said Munichikkaiah, father of defendant No.1, entered into two agreements of sale on 05.04.1983 and 04.04.1987 one with Abdul Karim (plaintiff No.1) for selling 4 acres 20 guntas of land and the second agreement with S.V. Somashekhar (Plaintiff No.2) for selling 2 acres of land, totally 6 acres 20 guntas of land. Whereas, the suit was filed by the plaintiffs for specific performance of contract and obtained decree. The GPA was said to be executed by Munichikkaiah for 8 acres 3 guntas of land in favour of the plaintiffs.
27. Apart from that, as I have already held, it is a clear admitted case of the parties that three persons were the owners of 35 acres 20 guntas of land and it should be equally divided, which comes to 11 acres and odd guntas. Without any documents, the contentions of the appellant is that 14 acres of land falls to the share of Munishami son of Ramaiah, 10 acres 20 guntas falls to the northern portion of Irappa and 11 acres of land towards Southern portion of the land of Muni Swami, son of Byriga cannot be acceptable. If it is equally divided, it 34 RFA NO.1246/2019 comes to 11 acres 32 guntas. The said 11 acres 32 guntas divided by 2, comes to 5 acres 36 and odd guntas. Hence, Munichikkaiah sold his 1/6th share of 5 acres of 36 guntas to one Subramanyam and he has not retained any property of his grandfather and remaining 1/6th share gone to Kempanna and Irappa's family where Poojamma was his legal heir who sold the property in the year 1953 to her brother Pillappa and the said Pillappa sold the said property on 18.01.1963 to Shankarappa, the father of defendant Nos.2 and 3. The trial court in O.S. No.542/1970 has rightly decreed the suit by granting 1/6th share by metes and bounds. Of course, an FDP came to be filed by the plaintiff-Shankarappa in FDP No.30/1982 as per Ex.D2 and the civil Court directed the Commissioner to divide the property. Accordingly, the said Commissioner divided the property by referring the matter to ADLR and the ADLR submitted report by dividing the property. Of course, the order of the Deputy Commissioner has been set aside by the KAT but the division of the property of 1/6th share made by the ADLR will be in tact. In the meanwhile, the FDP No.30/1982 has been withdrawn 06.01.1995 with liberty to reopen the same. Even in the FDP, without issuing notice for demarcation, it was set aside, but the actual demarcation was already done by ADLR. Even prior to that, in the year 1978, 35 RFA NO.1246/2019 A.V. Subramanya sold the property to Munichikkaiah. On 1 26.03.1980, the said Munichikkaiah sold /6th share to one Kambaiah. Therefore, it is a clear case that 1/6th share remains with the family of Kempanna and to his son Chikkaveerappa. Thereafter, in the year 1953, Poojamma wife of sold the property to Pillappa and in the year 1963, the said Pillappa sold the same to Shankarappa, the father of defendant Nos.2 and 3. Therefore, the contention that the decree obtained by father of defendant Nos.2 and 3 in O.S. No.542/1970, is said to be a fraud or misrepresentation committed before the Court is not acceptable.
28. That apart, once there is no property of Munichikkaiah for retaining either 8 acres of land or getting 14 acres from his grand father cannot be acceptable. Such being the case, the purchaser Shankarappa has rightly filed the suit and obtained decree for division of 1/6th undivided share from Poojamma, through her husband and father-in-law Kempanna. Therefore, it cannot be said that the judgment obtained by the Shankarappa is by fraud or misrepresentation in order to say that it is to be set aside and it has already attained finality. Accordingly, answered point No.1.
36 RFA NO.1246/2019
29. As regards to another contention of the appellant that though father of respondent No.1 filed suit in O.S. No.5244/1988 challenging the very same decree in O.S. No.542/1970, but after the death of Munichikkaiah, his son Siddaramaiah (respondent No.1) entered as legal representative and thereafter, the said suit was dismissed for non-prosecution as it was not contested by the said Siddaramaiah. The said suit was dismissed on 23.06.1995. Thereafter, there was no representation or reopened the case. Subsequently, the present appellant has filed O.S. No.4166/2004 taking same contention, almost after 9 years of dismissal of the suit filed by father of defendant No.1 challenging the decree and also the sale deed of Pillappa of the year 1963. It is rightly contended by the learned counsel for respondents that the sale deed by Poojamma in the year 1953 executed in favour of Pillappa has not been challenged. Only the sale deed of Pillappa executed in favour of Shankarappa in the year 1963 has been challenged by Siddaramaiah and his father Munichikkaiah. But the vendor of the plaintiffs was already having knowledge about the sale deed of the year 1953, but ignoring the said sale deed, the plaintiff has challenged only the sale deed of the year 1963. The sale deed of the year 1953 is more than 30 years old document and 37 RFA NO.1246/2019 presumption is available in law as it is genuine. Therefore, the appellant has not at all challenged the earlier sale deed of the year 1953, but challenged only the sale deed of the year 1963, which is subsequent sale deed. Without cancelling the earlier sale deed, the question of challenging the 1963 sale deed, does not arise. Therefore, the contention of the appellant that the order passed in O.S. No. 5244/1988 is non-est in the eye of law, cannot be acceptable as the vendor of the plaintiffs has already lost his right in the earlier suit. Therefore, once again the appellant cannot challenge the same sale deed after the lapse of almost 30 to 40 years, knowing fully, the defendant got dismissed the suit. Accordingly, I answer point No.2.
30. Another contention raised by the learned counsel for the appellant is that O.S. No.553/1989 and O.S. No.1466/1992 has been decreed by the Civil Court and the same was challenged before this Court by filing R.F.A. No.79/2002 and R.F.A. No.80/2002, which came to be dismissed and an SLP was also filed before the Hon'ble Supreme Court challenging the judgment passed in both O.S. No.553/1989 and O.S. No.1466/1992 and the same was dismissed and it has obtained finality. Therefore, the contention of the plaintiffs is that the decree obtained by Shankarappa, the father of defendant Nos.2 and 3 by fraud and misrepresentation and the judgment of the 38 RFA NO.1246/2019 High Court of Karnataka in the first appeal and the order passed in SLP by the Hon'ble Supreme Court cannot be said that it is not binding on the plaintiffs. On the other hand, the judgment passed against them has been binding on them as it has attained finality. The principle of merger applies in this case. Therefore, the question of setting aside the judgment passed in O.S. No.553/1989 and O.S. No.1466/1992, does not arise.
31. Another contention raised by the learned counsel for the appellant is that the plaintiffs have obtained a decree in a suit for specific performance of contract for 6.20 acres of land. As I have already held above, though they have obtained decree for specific performance, but there is no existence of land retained by Munichikkaiah for entering into an agreement of sale with both the plaintiffs. Though the agreement of sale was for 4 acres that 20 guntas and 2 acres of land, but the GPA executed on 08.10.1982 was for 8 acres of land. Therefore, the question of claiming right over 8 acres 3 guntas of land, cannot be acceptable. The plaintiffs do not have any right over 8 acres of land and there is no availability of land or any land retained by Munichikkaiah for alienation. Munichikkaiah 1 already sold his /6th share of land sold to Kambaiah on 26.03.1980. Therefore, by way of agreement of sale, 39 RFA NO.1246/2019 Munichikkaiah, the father of defendant No.1, entered into agreement of sale with the plaintiffs and thereafter, he has filed a suit in O.S No.5244/1988 for declaration. The first defendant and his vendor have not prosecuted the matter and therefore, the suit was dismissed. Subsequently, the plaintiffs B.S. Mariswamappa and B.S. Neelakanta filed a suit and obtained decree which attained finality. Thereafter, the decree was obtained by Abdul Kareem Sab and S.V. Somashekar in O.S. No.2327/2003 against Siddaramaiah (defendant No.1) son of Munichikkaiah and the said Siddaramaiah himself withdrawn the appeals before the High Court on 27.08.2003. Therefore, the relief claimed by the appellant-plaintiff in this case cannot be granted in his favour as there is no property derived by the vendors of the plaintiff and there is no property for selling the same to the plaintiffs. Such being the case, the question of relief of injunction and declaration cannot be acceptable. The plaintiffs cleverly filed the present suit for setting aside the judgments in O.S. No.553/1989 and O.S. No.1466/1992, even though it has attained finality. Therefore, the plaintiffs are not in possession of the property and cannot declared as owners of the property. Even otherwise, they are only the agreement holders and they do not have any right over the property for filing the suit when the original owners Siddaramaiah and 40 RFA NO.1246/2019 Munichikkaiah were not chosen to set aside the sale deed. Therefore, I am of the view that the plaintiffs failed to prove that they were having right over the suit schedule property as claimed in the suit. Accordingly, I answer the point.
32. As regards limitation, admittedly, the suit was filed by the plaintiffs in the year 2004 for setting aside the judgment and decree in O.S. No.542/1970. Subsequently, the said suit was also dismissed. As I have already held above, Poojamma sold 5 acres 36 guntas of undivided share to Pillappa in the year 1953 itself. The sale deed executed by Poojamma in favour of Pillappa has not been challenged till date. The sale deed executed by Pillappa in favour of Shankarappa has been challenged by Siddaramaiah in O.S. No.5244/1988. Even if it is considered that the suit was filed in 1988, but the sale deed of the year 1963 has been challenged in 1988. There was reference available about the purchase of the property by Shankarappa from Pillappa and the said Pillappa purchased the property from Poojamma in 1953 itself. Such being the case, even the suit of the defendant No.1 is dismissed for non prosecution on 23.06.1985, but the suit of the plaintiff was of the year 2004. There is inordinate delay in filing the suit for cancellation of sale deed. Even if issue No.2 before trial court 41 RFA NO.1246/2019 is considered after 21 years of sale deed, Sidramaiah withdrawn the suit and the present suit was filed in the year 2004. Therefore, the suit would have been filed within three years as per Articles 58 and 59 of the Limitation Act. The suit was filed after lapse of more than 40 years. Even if it is considered that the suit is of the year 1988, it is more than 20 years. Therefore, the suit is barred by limitation for challenging the sale deed. Accordingly, I answered point No.5.
33. Point No.8: As regards the contention raised by the learned senior counsel for the respondents that the suit in the present form claimed to be a representative suit is not maintainable as it is not in the form of Order I Rule 8 of CPC. On perusal of the prayer made by the appellant the suit was filed by the plaintiff for setting aside the decree in O.S. No.542/1970 as not binding and also the decree obtained by respondent in O.S. No.553/1989 and O.S.No.1466/1992 judgment RFA is also not binding even though it had attained finality. The suit filed by plaintiff is not in the form of Order I Rule 8 of CPC as representative suit. Even if it is representative suit, it ought to be mentioned in the cause title of the suit and also filed an application showing the names of all authorized plaintiffs and also calling for any other third party to come and 42 RFA NO.1246/2019 join with the plaintiffs by issuing paper publication, but the suit is filed only by two persons, who claimed to be agreement holders from Munichikkaiah, the father of defendant No.1, under agreement of sale. They said to be formed lay out and sold to various persons. First of all, when the plaintiffs themselves do not have any right, title or interest over the schedule property that too under the agreement of sale, no right will be transferred to them. Though they have obtained decree, but it cannot be executable as the respondents- defendants already obtained decree prior to agreement by the plaintiffs. Therefore, plaintiffs No.1 and 2 filed a suit as normal suit for declaration and it cannot be said that the suit is a representative suit filed under Order I Rule 8 of CPC.
34. In this regard, learned counsel for the respondents has relied upon the judgments of the Madhya Pradesh High Court in the case of Ganga Vishnu, cited supra, wherein the High Court of Madhya Pradesh, at para No.2 of the judgment, has held as under:
2. The sole point for determination in this case is whether a representative suit under O. 1, R. 8 can be instituted on behalf of an unincorporated Association for the recovery of a money Claim. Order 1, Rule 8 (1) is as follows:
"Where there are numerous persons having the same interest in one suit, one or more of such 43 RFA NO.1246/2019 persons may, with the permission of the Court, sue or be sued, or may defend, in such suit, on behalf of or for the benefit of all persons so interested. But the Court shall in such case give, at the plaintiff's expense, notice of the institution of the suit to all such persons either by personal service or, where from the number of persons or any other cause such service is not reasonably practicable, by public advertisement as the Court in each case may direct." This rule embodies an exception to the general principle that all persons interested in a suit ought to be joined as parties to it so that the matters involved may be finally adjudicated upon and fresh litigations over the same matters may be avoided. The rule is enacted to avoid inconvenience and delay in the hearing of a suit where the parties are numerous but have the same interest in the suit. As was observed by Rangnekar, J., in Gurushiddappa Gurubasappa v. Gurushiddappa Chenavirappa, AIR 1937 Bom 238 (A)"
"persons may be joined in a suit either on account of something personal, as for instance having either sold or bought goods, or like officers of corporation as possessing certain knowledge, or because they are the owners or guardians of certain interests which the suit will affect. Upon the first ground they must be joined in their own person.
Upon the other grounds the proceedings can go with equal prospect of justice if the interests concerned are effectually and virtually protected. The absent parties in such cases appear by their representative or representatives; their interests. are protected or claims enforced."44 RFA NO.1246/2019
The essential condition for the applicability of O. 1. R. 8 is that the parties must be numerous and there must be community of interest between them, that is to say, they must be persons having the same interest in the suit. If these conditions are satisfied, then there can be no ground for refusing leave to a person to sue in a representative capacity whatever may be the nature of the claim.
Here the plaintiff Ganga Vishnu is not seeking to enforce a personal claim against the defendants. He is suing in his capacity as Secretary of the Cloth Dealers Association, which is an unregistered body. It is clear from the allegations in the plaint that the money claim which the plaintiff is seeking to enforce against the defendants is one in which all the members of the Association have a common interest. I am, therefore, unable to see why the plaintiff cannot sue for the recovery of the amount as Secretary of the Association and on behalf of the other members of the Association.
In view of the above principles, the present suit is not maintainable.
35. The learned counsel for the respondent No.2 has also relied upon the judgment of the Hon'ble Supreme Court in the case of MD. Noorul Hoda, cited supra, wherein it is stated that the suit for declaration is to be filed within three years from the date of knowledge of the sale deed as per Article 59 of the Limitation Act. In another judgment, in the case of Abdul Rahim, cited supra, the Hon'ble Supreme Court has held that for cancellation of gift deed or instrument, the limitation prescribed is three years from the date of document or from 45 RFA NO.1246/2019 the date of knowledge. The Delhi High Court has also taken similar view in the case of Jhang biradari housing residents society, cited supra. Therefore, the suit in the present form is not maintainable. Hence, I answer the point accordingly.
36. Learned senior counsel for the respondent has contended that the boundaries mentioned in the suit property in the suit filed by the plaintiff for specific contract, wherein they claimed to be the agreement holder and obtained the decree. Whereas, the schedule shown in the plaint in O.S.No.4166/2004 is altogether different. The agreement of sale was for 6 acres 20 guntas, whereas suit filed by the plaintiff, is for 8 acres and 3 guntas of land. It is Further contended that the property of the respondent was 5 acres 36 & 2/3 guntas, and reassessed as Sy.No.73/2. The said schedule was already confirmed by the civil court in the earlier two suits filed by the respondents and obtained the decree and was attained finality before the Hon'ble Supreme Court. Therefore, it is contended that the judgment of Hon'ble Supreme Court, as well as the High court has been merged with the judgment of the Hon'ble Supreme Court in S.L.P. Therefore, the said judgment cannot be set aside by the Civil Court. Therefore, it is contended that the Civil Court has 46 RFA NO.1246/2019 rightly dismissed the suit of the plaintiff. Learned senior counsel also relied upon the judgment reported in (2000) 6 SCC 359 in case of Kunhayammed & others Vs. State of Kerala and another, where it is held as under;
"The doctrine of merger is neither a doctrine of constitutional law nor a doctrine statutorily recognised. It is a common law doctrine founded on principles of propriety in the hierarchy of justice delivery system.
The logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject-matter at a given point of time. When a decree or order passed by an inferior court, tribunal or authority is subjected to a remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy. Once the superior court has disposed of the lis before it either way - whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the court, tribunal or the authority below. However, the doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the superior forum and the b content or subject-matter of challenge laid or which could have been laid shall have to be kept in view."47 RFA NO.1246/2019
37. In view of the judgment of Hon'ble Supreme Court, once the judgment of the Civil Court has been confirmed by the High Court in the appeal in RFA No.79 and 80 of 2002 and also upheld by the Hon'ble Supreme Court, by dismissing the appeal filed by the appellant as withdrawn, the question of setting aside the said judgment, does not arise. The same view has been followed by the Hon'ble Apex Court in recent judgment reported in (2024) 1 S.C.R 11 in the case of Mary Pushpam Vs. Telvi Curusumary & Ors (in Civil appeal No.9941/2016 dated 03.01.2024)
38. Therefore, once the suit between the parties has attained finality in respect of schedule property, claimed by the plaintiffs in earlier suits, though it is suit for bare injunction as claimed by the respondent in the earlier suits, but it was contested and upheld by the Hon'ble Supreme Court in the SLP.No.8838/2010 and SLP No.8839/2010 dated 8.7.2010, as the appeals were withdrawn by the very same plaintiffs before the Hon'ble Supreme Court, thereby the judgments have attained finality.
39. The appellants also filed suit for specific performance and obtained decree, but it cannot be executable as there is no proper boundaries and measurement of the property and if the 48 RFA NO.1246/2019 contention of the appellant that property was not bifurcated as per the order of the Deputy Commissioner and ADLR divided the property or demarcated the property, the question of claiming 8 acres of land does not arise. Therefore, once the dispute of the properties has attained finality and the 2nd round litigation, definitely applies the principles of re-judicata. Therefore, once again the appellants are not entitled for any relief claimed.
40. As regards to the possession and enjoyment of the schedule property, the plaintiff claimed 8 acres 3 guntas of land issued in middle portion of old survey no.73, east by land 5 acres and 37 guntas in mid portion of Munichikkaiah, sold to Kambaiah by Siddaramaiah. South by land of children of Muniswamy S/o. Bairig. West by land of Honnamma wife of Krishnappa (formerly land of Kariyamma and his successors). North by Varadaraj and Srinivas' land purchased from Patel Channappa - Era son of Doddaiah. On perusal of the same, as already held in the previous paragraphs of this judgment, there is no previous agreement or contract between the parties to divide 35 acres and 20 guntas of land by 10 acres, 14 acres and 12 acres as contended by the plaintiff, on the other hand, the respondent has categorically contended that it has to be 49 RFA NO.1246/2019 equally divided by all the 3 owners of the land. If the same is equally divided, it comes to 11 acres and 36 guntas of land each and if the same is equally divided between two brothers i.e, Siddaramaiah and Kempanna, it comes to 5 acres 36 & 2/3 guntas. Once the very Munichikkaiah sold 5 acres 37 guntas to one Kambaiah, it is clear case that his share of property has been sold by him and there is no retaining of any land. The remaining 5 acres 36 & 2/3 guntas were fallen to the share of Kempanna. Later it was fallen to his son Era Kempanna and after his death, Poojamma desired the property. The said Poojamma sold the property in 1953 itself to one Pillappa. Subsequently, the said Pillappa already sold the said land 5 acres 36 & 2/3 guntas on 8.1.1963 to one B.M. Shankarappa, the father of the respondent Nos.2 and 3 herein (defendant Nos.2 and 3). Such being the case, the question of retaining any property does not arise. The earlier suit in O.S.No.542/1970 for partition suit filed by the above said B.M. Shankarappa has been decreed for 1/6th share, it equally comes to 5 acres and 36 guntas. Thereby, the same was in possession of the respondent/defendant Nos.2 and 3 and thereafter it was alienated to other respondents. The plaintiff's vendor's vendor Munichikkaiah do not have any right, title and interest to sell the property to the plaintiff under the agreement 50 RFA NO.1246/2019 of sale, even the very defendant No.1 has filed the written statement in the suit by denying the agreement of sale and decree obtained by the plaintiff for 6 acres, whereas suit was filed for 8 acres and it is contended, it is already formed layout and sold to various persons. Such being the case, the plaintiff failed to prove that they are in the lawful possession and enjoyment of the schedule property as on the date of filing of the suit. As already stated above, the plaintiffs have failed to prove that they are having right over the schedule property, as on the date of filing of the suit and the suit filed under Order 1 Rule 8 of CPC in this form is not maintainable. Therefore, I answered the point No.4 against the appellant/plaintiff.
41. Though the appellant counsel has contended that the FDP filed by the respondents (are committed fraud etc., and) is not binding on the plaintiff, (once the suit was decreed and property in the FDP has been demarcated though the order of Deputy Commissioner has been set aside, but the demarcation was unaltered and if it is considered that the demarcation is not valid, the question of selling their property by the appellant's vendor Munichikkaiah and other two owners Muniswamy S/o. Byriga, Era S/o Doddaiah cannot be identified for alienating the property by them to the 3rd persons.
51 RFA NO.1246/2019Therefore, the parties have acted upon on the demarcation made by the ADLR despite, the order of DC. Subsequently, the FDP filed by the respondents for getting the decree in the stamp paper, the same was allowed by the Court. The said FDP order has not been challenged by the plaintiff by filing any appeal. Therefore, the order passed in FDP No.96/2003 has attained finality and hence it cannot reopened. The final decree order at Ex.D14 and the same was registered as per Ex.D16 and the same had attained finality.
42. In view of the discussion above, when this property has been purchased by 3 independent owners and they are not the brothers and as they are already bifurcated and are living separately, such being the case, Ex.P1 relied by appellant counsel is not useful to him, as this property has been purchased and thereafter when there is no bifurcation, as per the very case of the appellant, in the trial court, regarding equally dividing to 3 persons or as stated by them by diving 10 acres 14 acres and 12 acres. Such being the case, whether they are living separately or not, partition took place, cannot be acceptable when there is no document to prove the contention when there is a partition between the family and bifurcation of the land, the question of considering Ex.P1, does not arises. 52 RFA NO.1246/2019
43. The family tree prepared by the plaintiff showing the Siddarama as a propositors Ramaiah, Kempanna and Chikkaveerappa are 3 children and Ramaiah's son Munishami were all not useful to the case, since the property is not ancestral property and it has not came from common ancestor.
44. Learned senior counsel for the respondent has rightly contended that the property has been purchased by (1) Muniswamy S/o. Byriga, (2) Era S/o Doddaiah and (3) Munishami S/o Ramaiah. This Kempanna and Ramaiah are the children of Muniswamy (Son of Rama) and this Chikkaveerappa (defendant No.1) is son of Kempanna and Dodda Muniswamy and ChikkaMuniswamy are the son of Ramaiah and Munichikkaiah and Siddaramaiah are the sons of Dodda Muniswamy. Chikkaveerappa died issue less and hence Poojamma his wife got 1/3rd share out of half share of her husband. Later, it was sold to Pillappa in the year 1953 i.e., on 03.06.1953. Later, said Pillappa sold the property to B.M.Shankarappa on 18.1.1963 and the said Shankarappa filed the suit. Therefore, the family structure produced by the respondent/defendant is clearly clinches the issue that the property is devolved i.e., middle property belongs to Muniswamy son of Rama. Even otherwise Kemapanna and 53 RFA NO.1246/2019 Ramaiah resided separately, and therefore the question of sharing the property or bifurcating the property does not arise. Since in Sy.No.73, there is no partition and it was decided only in the O.S.No.542/1970. The vendors of the plaintiff contested the matter in the said suit by challenging the said decree in the earlier suit and it was dismissed and even otherwise, the plaintiffs have no right over the schedule property and there is no sale deed in favour and there is no property retained by the vendors, out of the 1/6th share, which was already sold one Kambaiah. Therefore, the contention of the appellant counsel cannot be acceptable.
45. Considering the entire evidence on record, the trial court rightly dismissed the suit. Hence, the contention of the appellant counsel that Poojamma does not derive any right over the property as she was got the right prior to commencement of Hindu Law etc were all considered in the earlier suits filed by the plaintiff and the respondents in O.S.No.553/1989 and 1466/1992 and the appeals also came be dismissed in RFA no.79 and 80 of 2002 which was upheld by the Hon'ble Supreme Court and in O.S.No.542/1970. Therefore, the same contention cannot be once again agitated by the plaintiff in the present suit and it was already contested 54 RFA NO.1246/2019 with the earlier suit. Therefore, the trial court considering the entire evidence on record, rightly came to the conclusion that the plaintiff is not entitled for the declaration and injunction sought by him in the suit and rightly dismissed the suit of the plaintiff.
46. The judgment of the trial court based upon the oral as well as the documentary evidence does not call of interference.
Accordingly the appeal filed the appellant is hereby dismissed.
Sd/-
(K.NATARAJAN) JUDGE AKV/CS List No.: 19 Sl No.: 1 CT:SI