Karnataka High Court
Sri R Manjunatha Reddy S/O Late N T Rama ... vs Sri L A Srinivasa Gupta S/O N S Anantha ... on 9 August, 2017
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 09TH DAY OF AUGUST, 2017
BEFORE
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
REGULAR SECOND APPEAL No.2427 OF 2011
BETWEEN:
1. SRI R MANJUNATHA REDDY
AGED ABOUT 42 YEARS
2. SRI R MUNI REDDY
AGED ABOUT 40 YEARS
3. SRI N R LAKSHMANA REDDY
AGED ABOUT 38 YEARS
ALL THE ABOVE ARE SONS OF
LATE N T RAMA REDDY
AND ARE R/AT BALEGARANAHALLI VILLAGE,
ATTIBELE TALUK, BANGALORE DISTRICT
PIN CODE - 562 106 ... APPELLANTS
(BY SRI.K G SADASHIVAIAH, ADV.)
AND:
1. SRI L A SRINIVASA GUPTA
S/O N S ANANTHA PADMANABHA SETTY,
AGED 55 YEARS , MAJOR
R/AT NO G 23, MYSORE ROAD
NEW THARGUPET, BANGALORE 560 002
2. MS.ARUNA SHEKUJA D/O MR D W SHEKUJA
AGED 66 YEARS
2
R/AT NO 347, 6TH MAIN ROAD,
I BLOCK KORAMANGALA
BANGALORE - 560 034
3. MR H L MALHOTHRA S/O MR D.L MALHOTHRA
AGED 76 YEARS
R/AT NO B/30, MAHARANI BAGH
NEW DELHI - 110 001
4. MR. MOHAMMAD IQBAL S/O MR NEEYAM SAHEEB
AGED 76 YEARS
R/AT NO 5, NANDIDURGA EXTENSION
BANGALORE - 560 052
5. MR N T RAMA REDDY S/O K THIMMA REDDY
SINCE DEAD BY HIS LRS
A) SMT R RATHNAMMA W/O LATE N T RAMA REDDY
AGED ABOUT 62 YEARS
B) MISS N R RENUKA DEVI D/O SRI N T RAMA REDDY
AGED ABOUT 31 YEARS
5(A) AND 5(B) ARE R/O BALAGARANAHALLI VILLAGE
ANEKAL TALUK, BANGALORE- 560 007
6. THE SUB REGISTRAR
ANEKAL SUB REGISTRAR OFFICE
ATTIBELE HOBLI ANEKAL TALUK
BANGALORE DISTRICT
PIN - 562 106 ... RESPONDENTS
(BY SRI.H S DWARAKANATH, ADV. FOR R1;
R2 & R3 ARE SERVED;
SRI.S.SRIRANGA, ADV. FOR R4;
SRI.MAHENDRA GOWDA, C.R. ADV. FOR R5 (A&B)
R6 IS SERVED)
3
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 30.8.2011 PASSED IN
R.A.NO.257/2009 ON THE FILE OF THE PRESIDING OFFICER,
FAST TRACK COURT-III, BANGALORE RURAL DISTRICT,
BANGALORE, ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT AND DECREE DATED:15.10.2009 PASSED IN
O.S.NO.25/2006 (OLD NO.647/1995) ON THE FILE OF THE CIVIL
JUDGE (SR.DN) & JMFC., ANEKAL.
THIS APPEAL COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY AFTER HAVING HEARD AND RESERVED
FOR JUDGMENT ON 21.06.2017, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is filed by the appellant-plaintiffs being aggrieved of the judgment and decree dated 30.8.2011 in R A No.257/2009 on the file of the Presiding Officer, Fast Track Court-III, Bangalore Rural District, Bangalore. The lower appellate allowed the appeal and set aside the judgment and decree dated 15.10.2009 in O S No.25/2006 on the file of the Civil Judge (Sr.Dn.), Anekal. The trial court had decreed the suit for declaration that the sale deed executed by father of the plaintiffs dated 15.4.1982 is invalid in terms of the judgment passed in O S No.334/87 and subsequent sale deed dated 16.7.1987 executed by K L Malhothra and another in favour of Mohammed Iqbal and sale deed dated 19.8.1987 4 executed by Mohammed Iqbal in favour of the first defendant is also null and void and not binding on the plaintiffs' rights in the suit schedule properties and for permanent injunction in respect of the suit schedule properties.
2. The parties would be referred to as per their ranking in the trial court as plaintiffs and defendants for the sake of convenience.
3. The facts of the case to be stated in brief are that the suit schedule properties are the ancestral properties. The plaintiffs No.1 to 3 and their family members are all having peaceful possession and quiet enjoyment of the suit schedule properties and they are cultivating the suit schedule properties. Their father has conveyed the schedule properties to one K L Malhothra S/o Late D R Malhothra and Ms. Aruna Shekuja D/o D W Shekuja, by a registered sale deed dated 15.4.1982. The plaintiffs were minors when the sale took place. Hence the plaintiffs filed a suit in O S No.334/87 that the schedule properties are the ancestral properties and the sale deed made by their father in favour of purchasers is null and void. The said suit came to be decreed by the judgment and decree dated 30.10.1992 declaring that the suit 5 schedule properties are ancestral properties of the plaintiffs and the sale deed dated 15.4.1982 executed by the plaintiffs' father in favour of purchasers is invalid and not binding on them.
4. It is further stated, the purchasers K L Malhothra and another conveyed the schedule properties to one Mohammed Iqbal on 16.7.1987. On coming to know the said fact, the plaintiffs filed application in O S No.334/87 to implead the said Mohammed Iqbal. Accordingly, he was made one of the defendants in the said suit.
5. Subsequent to the judgment dated 30.10.1982 the plaintiffs came to know that the said Mohammed Iqbal further conveyed the schedule properties in favour of the first defendant under a registered sale deed dated 19.8.1987. The application filed by the plaintiffs before the Tahsildar for change of khata came to be rejected on the ground that the first defendant was not a party to the earlier suit. It is stated, khata of the suit schedule properties cannot be changed in favour of the plaintiffs, though the plaintiffs are entitled to get the khata of the schedule properties in their favour. The defendant taking undue advantage of sale deed dated 19.8.1987 and also pahanies is trying to dispossess the 6 plaintiffs from the suit schedule properties. The defendant is posing as an absolute owner of the suit schedule properties on the basis of the defective sale deed. The sale deed executed by their father was invalid as per the judgment and decree dated 30.10.1992 in O S No.334/87 and the subsequent sale deed is also invalid in the eye of law and subsequent sale deed becomes infructuous and ineffective and not binding on the right of the plaintiffs. The plaintiffs are entitled to get khata of the schedule properties in their favour. The defendant also contended that he is not a party in O S No.334/87 and the defendant is not allowing to change the khata in their names. The defendant has no manner of right, title and interest in the suit schedule properties. The defendant is claiming to be an absolute owner and trying to interfere with the peaceful possession and enjoyment of the suit schedule properties by the plaintiffs. The defendant lost his right, since the previous sale deed was invalidated in the earlier suit and not binding on the plaintiffs' right and the defendant is nothing to do with his sale deed dated 19.8.1987.
6. The defendants 2 to 5 were parties in the previous suit O S No.334/87 and the said suit is decreed in favour of the plaintiffs 7 herein. There was no appeal preferred by any of the defendants herein. In view of the same, the plaintiffs are in absolute, continuous, uninterrupted possession and enjoyment of the suit schedule properties, which is their ancestral property. Inadvertently and having no knowledge of the present defendant No.1 having purchased the suit schedule properties from defendant No.4, plaintiffs could not make him a party in the previous suit. The defendants 2 to 5 have already suffered the judgment and decree in the hands of the plaintiffs herein. The said defendants are made as formal and necessary parties to this suit. Since the judgment and decree in O S No.334/87 invalidated the previous sale deed dated 15.4.1982 executed by defendant No.5 in favour of defendant Nos.2 & 3 and subsequent sale deed dated 16.7.1987 executed by defendant Nos.2 & 3 in favour of defendant No.4, the same are not binding on the plaintiffs. The first defendant having knowledge of the plaintiffs' right and possession, has purchased the suit schedule properties from defendant No.4. If the first defendant would have perused the previous title deeds of the plaintiffs' predecessors, the same would have revealed the existing right of the plaintiffs in the suit schedule 8 properties. The suit schedule property is an agricultural land and the defendant is not an agriculturist to hold/purchase the agricultural land. The plaintiffs came to know from the reliable sources that the defendant No.1 knowing the consequences of the suit, is making hectic efforts to dispose of the suit schedule property. Neither the defendant nor his predecessors covered under the alleged sale deeds were in possession and enjoyment of the suit schedule properties at any point of time and on the other hand, the plaintiffs are very much in continuous possession and enjoyment of the suit schedule properties, at all times without any interference or disturbance from anybody. The defendant cannot exercise his right through defective sale deed, since the previous sale deeds become invalid, and the defendants cannot take advantage by producing the same before the revenue authorities and defend that he is entitled for the entries in the revenue records.
7. The defendant No.1 filed written statement contending that the suit of the plaintiffs is barred by limitation as the challenge is to sale deeds dated 15.4.1982, 16.7.1987 and 19.8.1987 and the suit is filed on 6.9.1995. The defendant is not a 9 party to the suit in O S No.334/87 and therefore he is not bound by any order/decree made therein. Injunction cannot be granted against a true owner. The cause of action being not disclosed under Order 7 Rule 11 of CPC, the suit is liable to be dismissed.
8. The first defendant has further contended that the plaintiffs' father sold the schedule properties to one Mr.K L Malhothra and another on 15.4.1982 under a registered sale deed. On 16.7.1987 by a registered sale deed, Mr.K L Malhothra and another sold the same to Mohammed Iqbal, who in turn sold it to this defendant on 19.8.1987. The said N T Rama Reddy sold the schedule property in order to reinvest the sale proceeds by purchasing some other agricultural lands and to develop the same. The defendant is in actual, peaceful and physical possession of the schedule property as absolute owner. Knowing fully well that the properties have been sold to the defendant and that the properties are in the name of this defendant, the plaintiffs appear to have filed suit in O S No.334/87 before the Prl. Civil Judge, Bangalore by making K L Malhothra, Aruna Shekuja and N T Rama Reddy seeking cancellation of the sale deed dated 15.4.1982. Significantly before the date on which the suit was filed i.e., O S No.334/87, the 10 property had already been sold to Sri Mohammed Iqbal. The plaintiffs deliberately did not make Sri Mohammed Iqbal as a party to the said suit in the beginning. Subsequently, after the said K L Malhothra filing his written statement saying that the property has already been sold to Sri Mohammed Iqbal, plaintiffs have impleaded Sri Mohammed Iqbal in the said suit. This defendant became the owner of the schedule properties on 19.8.1987 before the suit O S No.334/87 came to be filed on 18.12.1987. As there was no interest in the schedule properties for the earlier purchasers, they did not contest the matter and the said suit was decreed. The judgment is an exparte one and is not binding on this defendant, since this defendant was not a party to that suit. Apart from the fact that this defendant was not a party to the said proceedings, the plaintiffs have sought relief seeking change of khata in their favour before the Deputy Tahsildar and their prayer was rejected. Thus the defendant is in possession and enjoyment of the schedule properties as owner and plaintiffs are aware of the transaction. No injunction can also be granted.
9. The L.Rs. of deceased 5th defendant filed their written statement contending that she being the widow of the 5th 11 defendant was informed through her counsel about the court proceedings, the property acquired from her personal funds (belonging to her and received from her parents, brothers) and kept in the name of the deceased husband, being questioned in the above court proceedings the alleged sale transaction of the 5th defendant during his life time with the 2nd and 3rd defendants, prompted these L.Rs. to come before this Court to bring some of the true facts and circumstances about the ancestral properties of the plaintiffs and her self-acquired properties in the name of her husband, to enable to render its just decision. It is true that the suit schedule properties belong to the ancestors of the plaintiffs, and the plaintiffs are the successors of the said ancestral properties. The suit schedule properties belong to the great grandfather of the plaintiffs. Though it was informed the said 5th defendant N T Rama Reddy to discharge certain debts from the Co- operative Bank, but the same was discharged by her father-in-law himself. The schedule property came to the share of 5th defendant is of ancestral property and by that time, the plaintiffs and other L.R. No.2 were born and were minors. No third party has been given any possession of any nature in respect of the suit schedule 12 properties at any point of time. The plaintiffs, 5th defendant and these L.Rs. were in possession and enjoyment of the suit schedule properties as joint and absolute co-owners. The 5th defendant was not taking care of the family, always used to misuse the family funds for his other habits, for his friends under influence. He was not regularly coming to the house and taking care of the family. The property purchased by L.R No.1 from her said funds cannot be connected to any of the alleged transaction of the 5th defendant, at any point of time. The said property belongs to this L.R. though kept in the name of N T Rama Reddy, who has not contributed any amount for the same.
10. On the basis of the above pleadings of the parties, the trial court formulated the following issues:
(1) Whether the plaintiff proves that the sale deed executed by Mohammed Iqbal in favour of the defendant dated 19.8.1987 is invalid and not binding on them?
(2) Whether the plaintiffs prove that the defendant has lost his title, if any, in view of the previous sale deeds becoming invalid in view of the Judgment and Decree passed in O S No.334/1987?
13(3) Whether the plaintiffs prove that the decree obtained in O S No.334/1987 binds the defendant?
(4) Whether the plaintiffs prove the alleged interference by the defendant? L (5) Whether the valuation made by the plaintiff is correct and the court fee paid is sufficient?
(6) Whether the suit is bad for non-joinder and mis-joinder of parties?
(7) Whether the suit is barred by time?
(8) Whether the plaintiffs are entitled for the relief of declaration and injunction as prayed for?
(9) What decree or order?
11. The plaintiffs in order to prove their case examined plaintiff No.1 as PW-1 and got marked Ex.P1 to P128. On the other hand, the defendants examined defendant No.1 as DW-1 and one R Rathnamma, the L.R. of defendant No.5 was examined as DW-2 and got marked Ex.D1 to D38.
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12. The trial court after hearing the arguments, decreed the suit by answering the above issues as follows:
Issue No.1 - In the affirmative
Issue No.2 - In the affirmative
Issue No.3 - In the affirmative
Issue No.4 - In the affirmative
Issue No.5 - In the affirmative
Issue No.6 - In the negative
Issue No.7 - In the negative
Issue No.8 - In the negative
13. Thereupon the defendant No.1 preferred R A
No.257/2009 and the lower appellate court reversed the judgment and decree of the trial court. Hence this appeal by the plaintiffs.
14. This court while admitting the appeal has formulated the following substantial questions of law for consideration:
(1) Whether the first appellate court is right in applying the Articles 56 to 58 of the Limitation Act 1963 for filing the suit in respect of the alienations made by the father excluding the other joint family members without applying the Article 109 of Limitation Act?15
(2) Whether first Appellate Court is right in applying the principle of `judgment in personam' instead of `judgment in rem'?
(3) Whether first appellate court was right in applying the principles of res judicata though it was contended by plaintiff before first defendant/first respondent did not derive any title by virtue of judgment and decree passed in O S No.334/1987?
(4) Whether the first appellate court is right in holding that the suit in O S No.647/1995 (New No.25/2006 is not maintainable in view of Order II Rule 2 of Code of Civil Procedure?
15. I have heard the learned counsel for the parties and perused the impugned judgment.
16. The learned counsel for the appellants submits that the lower appellate court has erroneously held that the judgment and decree passed in O S No.334/1987 is incorrect though the same was not challenged and further held that it is not a `judgment in rem' but `judgment in personam', that the lower appellate court erroneously applied Articles 56 to 58 of the Limitation Act instead of applying Article 109 of the Limitation Act, that when the sale deed dated 15.4.1982 is set aside in O S No.334/1987 still holds 16 that the first defendant was not a party and judgment in previous suit was not applicable, the lower appellate court has erred in holding that the suit is not maintainable in view of provision of Order II Rule 2 C P C. It is submitted that Articles 56 to 58 of the Limitation Act are not applicable in view of the fact that the suit for declaration filed by Joint Family Members questioning the alienation made by the Manager of the family as contemplated in Articles 109 and 110 of the Limitation Act. Hence the limitation period to file suit is 12 years and not 3 years. Admittedly, the suit schedule properties are the ancestral and joint family properties. The plaintiffs' father has not derived absolute right and interest over the suit properties. When the first sale deed was taken place on 15.4.1982, the plaintiffs were minors. The lower appellate court has erred in observing that the plaintiffs have not produced any material to show that they were minors even though they have produced Ex.P126 the genealogical tree as on the date of filing the suit O S No.647/1995 (O S No.25/2006) and specifically mentioned the age of the plaintiffs which fact is undisputed, no defence was taken by the first defendant disputing the status and age of the plaintiffs.
17
17. Father of the plaintiffs' sold the property without consent and permission of the plaintiffs and the sale was not for family necessity. Though the sale consideration was fixed at Rs.90,000/- except showing a sum of Rs.10,000/- on the date of sale deed, no documents were placed for having paid the remaining sale consideration.
18. The respondent herein contended that possession was delivered as on the date of sale deed. Except the recitals in the sale deed, the possession was not handed over in the year 1982. The revenue entries for the first time were mutated in the name of Mohamed Iqbal and L A Srinivasa Gupta on one and the same date i.e., 18.12.1987. Based on that the first respondent tried to dispossess the plaintiffs in the year 1995 by which time there was already a judgment and decree by the civil court in O S No.334/1987 dated 30.10.1982.
19. The suit filed by the plaintiffs was for declaration with regard to the immovable property and not in respect of personal character and therefore, the `judgment in personam' is not applicable to the present case on hand. The first defendant has not pleaded anything about the factum of `judgment in personam' and 18 no issue was framed by the trial court and further the 1st appellate court cannot pass judgment based on the submission made by the learned counsel for the first respondent.
20. With regard to res judicata, there are no pleadings on the part of the first defendant and there is no specific denial of the claim made by the plaintiffs herein as contemplated under Order VIII Rule 5 of CPC. So also provisions of Order VIII Rule 3 and 4 are specifically applicable to the present case on hand in the first defendant not specifically taking the defence. The first respondent has not questioned the validity of the judgment and decree in O S No.334/1987 dated 30.10.1992 wherein the Court has rightly decreed the suit against the vendor of the first defendant by setting aside the sale deed dated 15.4.1982 in which the right accrued to Mohammed Iqbal is negatived and therefore any amount of transfer of title by a person who has no right to transfer is of no consequence.
21. Sri Rama Reddy father of the plaintiffs could transfer only an extent of right, which he was having as contemplated under Section 44 and 47 of the Transfer of Property Act and absolutely he had no manner of right to transfer the rest of the 19 property which belonged to the plaintiffs. The principles of res judicata are applicable to the present case on hand as such the 1st defendant though was not a party to the earlier issues in O S No.334/1987, the declaration made by the court below in the earlier suit in respect of the property involved in the present suit applies and in view of applicability of principles of judgment in rem, the question of res judicata will arise.
22. If Order II Rule 2 of CPC are to be made applicable, there must be pleading by the 1st respondent and also in proof of it, evidence should have been produced to establish the fact that cause of action for a previous suit is similar to the present suit which is the subject matter of the appeal. The cause of action in the present case, it is clearly stated that it is a continuous cause of action. Subsequent to decree in O S No.334/1987 the plaintiffs came to know about the subsequent sale deeds by verification of the revenue records. The pleading as contemplated under Order VIII Rule 2 of CPC is a condition precedent. In the absence of pleadings and evidence, the first appellate court ought not to have held that the suit is hit by Order II Rule 2 of CPC. 20
23. If a joint family property is sold, he cannot handover possession of the entire extent and hence the claim of the first defendant based on recitals in the sale deed that he is in possession cannot be accepted. The first respondent's plea that findings in O S No.334/1987 is not binding on him, the question of applicability of Order II Rule 2 of CPC does not arise. The plea of possession claimed by the first defendant cannot be accepted.
24. The learned counsel for the plaintiffs relied upon certain judgments which would be referred to in the course of this judgment.
25. The learned counsel for the first respondent submits that by the pleadings of the plaintiffs, it is not a suit for setting aside the father's alienation of ancestral property and on the other hand it is to declare the sale deed to be null and void and therefore Article 109 of the Limitation Act can never apply. The plaintiffs have claimed that they are in possession and alienee has never taken possession. Hence Article 109 of Limitation Act can never apply. The judgment in rem or judgment in personam is decided by Section 40 to 44 of the Indian Evidence Act and only those which are governed by Section 41 of the said Act would be 21 judgments-in-rem. For res-judicata to be applicable to the purchaser, such purchase should have been done subsequent to the day on which earlier proceedings started. In the present case, the purchase was on 19.8.1987 by the first respondent and the suit was filed on 18.12.1987. The purchaser is not bound by the decree obtained in a suit against the vendor commenced after the date of purchase. The arguments made by the plaintiffs is that they were not aware of the sale in favour of the first respondent when the earlier suit was going on and hence Order II Rule 2 does not apply. The revenue documents did show the name of the first respondent and hence the plaintiffs were aware of the sale in favour of the first respondent during pendency of the earlier suit. Order II Rule 2 of CPC provides that every suit shall include the whole of the plaint in respect of the cause of action and omission to do so prohibits seeking such relief again. The only cause of action, the plaintiffs claim is that during his minority, property was sold which is not permissible. The cause of action for the earlier suit and the present suit is the same. The law prohibits splitting of cause of action.
22
26. If party is not in possession, suit is not maintainable under Section 34 of Specific Relief Act. The finding of fact which is not challenged and no substantial question of law is raised, the same cannot be challenged under Section 100 of CPC and hence plaintiffs can never succeed even if all points of law are answered in favour of the plaintiffs.
27. Lastly it is submitted that the sale by the father was for purchase of another property. The other property purchased was sold by the son who has filed the case. The plaintiff No.1 was 14 years old when the property was purchased.
28. The learned counsel for the first respondent has also relied upon the decisions, which would be referred to later.
29. The learned counsel for the respondent Nos.5(a) & 5(b) submits, the judgment passed in the earlier suit is a `judgment in rem' and not judgment in personam. The judgment rendered by the first appellate court is against to the principles laid down by the Supreme Court in (2011) 5 SCC 532 Para-37 that the judgment in declaration suit is a judgment in rem.
30. The lower appellate court has reversed the judgment of the trial court on the ground that the suit is barred by limitation, 23 judgment in the earlier suit being judgment in personam, is not binding on the first defendant, Kartha of the joint family is entitled to alienate the joint family property for the benefit of the joint family and that the suit is hit by the provisions of Order II Rule 2 of CPC as the plaintiffs were aware of the name of the first defendant entered in the revenue records but still not making him a party and not challenging the sale deed executed by his vendor in his favour. The lower appellate court further held relying upon the revenue entries as referred thereto that the first defendant is in possession and enjoyment of the suit schedule property.
31. Now let me consider the substantial questions of law framed in the appeal one by one.
32. The first substantial question of law relates to whether Articles 56 to 58 or Article 109 of the Limitation Act 1963 apply to the present case. Article 56 to 58 reads as under:
Article Description of suit Period of Time from which period Limitation begins to run 56 To declare the Three When the issue or forgery of an years registration becomes instrument issued known to the plaintiff or registered 57 To obtain a Three When the alleged declaration that an years adoption becomes 24 alleged adoption is known to the plaintiff invalid, or never, in fact, took place 58 To obtain any other Three When the right to sue declaration years first accrues.
33. It is the specific contention of the plaintiffs that it is Article 109 of the Limitation Act applies and period of limitation is 12 years. Therefore, it is beneficial to extract Article 109, which reads as under:
Article Description of suit Period of Time from which period Limitation begins to run 109 By a Hindu Twelve When the alienee takes governed by years possession of the Mitakshara law to property set aside his father's alienation of ancestral property Therefore, the challenge by the minors to the alienations made by the father in respect of ancestral property, the applicable Article is 109 of the Limitation Act and not Articles 56 to 58 as sought to be contended by the defendant No.1. The first plaintiff after attaining the age of majority filed the suit and therefore the suit filed on 6.9.1995 is well within time, period of limitation being 12 years from the date of attaining the majority. The lower 25 appellate court has committed an error in applying Articles 56 to 58 instead of Article 109 of the Limitation Act.
34. The second substantial question of law pertains as to whether the judgment in O S No.334/1987 is a `judgment in rem' or `judgment in personam'. Judgment in personam binds only those who are parties to it, whereas judgments for which provision is made in Section 41 of the Evidence Act are usually referred to as judgment in rem. The phrase "judgment in rem' has not been defined, but it has all along been understood as meaning a judgment which is conclusive not only against the parties, but also against the whole world. Such judgments declare, define or otherwise determine the status of a person or of a thing, that is to say, jural relationship of a person or thing to the world generally.
A judgment in rem is an adjudication pronounced as its name indeed denotes, upon the status of some particular subject matter, by a tribunal having competent authority for that office. The term `legal character' as used in Section 41 means some thing equivalent to status. The legal character assigned to a person announces to all the world what the legal status of a person is. The term must be narrowly construed for it must be remembered 26 that an action in rem is not an action against a thing but an action availing against all the world.
35. The Hon'ble Supreme Court in the case of Booz Allen & Hamilton INC vs., SBI Home Finance Limited & others, reported in (2011) 5 SCC 532 Para-37 has stated as follows:
"37. It may be noticed that the cases referred to above relate to actions in rem. A right in rem is a right exercisable against the world at large, as contrasted from a right in personam which is an interest protected solely against specific individuals. Actions in personam refer to actions determining the rights and interests of the parties themselves in the subject- matter of the case, whereas actions in rem refer to actions determining the title to property and the rights of the parties, not merely among themselves but also against all persons at any time claiming an interest in that property. Correspondingly, a judgment in personam refers to a judgment against a person as distinguished from a judgment against a thing, right or status and a judgment in rem refers to a judgment that determines the status or condition of property which operates directly on the property itself."27
36. In Sri Ram vs., Prabhu Dayal & others, reported in (1972) AIR (Raj) 180, this is what is stated after referring to Sections 41 to 43 of the Evidence Act in Para-10.
"Normally a judgment binds only those who are parties to it. Such judgments are known as judgments in personam. Judgments for which provision is made in Section 41 of the Evidence Act are usually referred to as judgments in rem. This phrase "a judgment in rem"
has not been defined, but it has all along been understood as meaning a judgment which is conclusive not only against the parties, but also against the whole world. Such judgments declare, define or otherwise determine the status of a person or of a thing, that is to say, jural relationship of a person or thing to the world generally. A judgment in rem is an adjudication pronounced as its name indeed denotes, upon the status of some particular subject-matter, by a tribunal having competent authority for that office (vide passages referred to in the Sarkar's Law of Evidence, Twelfth Edition at page 464). The term "legal character" as used in Section 41 means some thing equivalent to status. The legal character assigned to a person announces to all the world what the legal status of a person is. The term must be narrowly construed, for it must be remembered that an action in rem is not 28 an action against a thing but an action availing against all the world.
37. The sale deed executed by Mohammed Iqbal in favour of defendant No.1 is invalid, because the sale deeds of the earlier vendors having been declared invalid, the first defendant cannot get valid title in respect of the suit schedule property. It is to be noted here that father of the plaintiffs had no saleable interest to sell the entire suit schedule property. The Principal Civil Judge, Bangalore Rural Disatrict, Bangalore having decreed the earlier suit holding that the sale deed executed by Sri N T Rama Reddy in favour of defendants No.2 and 3 is invalid, the defendant No.1 has not got any valid title in respect of the suit schedule property. Hence, the judgment passed in O S No.334/87 certainly binds on the rights of the defendant No.1. It is a judgment in rem binding on the first defendant and not a judgment in personam.
38. The next substantial question of law relates to application of principles of res judicata. There are no pleadings on the part of the first respondent and there is no specific denial of the claim made by the plaintiffs herein as contemplated under Order VIII Rule 5 of the Code of Civil Procedure. Order VIII Rule 3 29 & 4 CPC is applicable to the present case on hand. The first respondent has not questioned the validity of the judgment and decree passed in O S No.334/1987 dated 30.10.1992 wherein the competent court decreed the suit against the vendor of the first defendant by setting aside the sale deed dated 15.4.1982 which right is said to have been transferred in favour of vendor of the first defendant. Any amount of transfer of title by the person who has no right to transfer is of no consequence. Father of the plaintiffs could have transferred right only to an extent of right, which he was having and absolutely he had no manner of right to transfer the rest of the property which belonged to the plaintiffs. The provision of Order VII Rule 7 CPC makes it clear about the power of the court to mould the relief. The principles of res judicata are applicable to the present case as such the first respondent though was not a party to the earlier issues in O S No.334/1987, the declaration made by the court was in respect of the property involved in the present suit and therefore, in view of applicability of principles of judgment in rem, the principles of res judicata will apply. Accordingly, this substantial question of law is answered. 30
39. The last substantial question of law relates to applicability of Order II Rule 2 of CPC. In order to make it applicable the said provision, there shall be pleadings by the first respondent and also in proof of it, evidence should have been adduced to establish the fact that the cause of action for previous suit is similar to the present suit. A perusal of the cause of action as stated in the plaint clearly makes it clear that it is a continuous cause of action and the entire para relating to cause of action shall be read as a whole. The plaintiffs have clearly stated that subsequent to decree in O S No.334/1987 the plaintiffs came to know about the subsequent sale deed on verification of the revenue records. In the instant case, in the absence of pleadings, no issue could be raised and no evidence could be adduced. In the absence of the same, the first appellate court ought not to have come to the conclusion that the suit filed by the plaintiffs was hit by Order II Rule 2 of CPC.
40. The lower appellate court based on the entries in the revenue documents came to the conclusion that the plaintiffs had the knowledge of the sale deed in favour of the first defendant and thereby they ought to have sought relief relating to nullity of the 31 sale deed in favour of first defendant also. The plaintiffs after filing the earlier suit came to know the sale deed in favour of vendor of the first defendant thereby they sought his impleadment and accordingly impleaded the vendor of the first defendant. Had they knowledge of the sale deed in favour of the first defendant, they could not have omitted to implead the first defendant also in the earlier suit and to seek declaration of his sale deed as a nullity. In the absence of materials on record, it cannot be inferred that the plaintiffs had the knowledge of the sale deed in favour of the first defendant but still omitted to incorporate the said relief. Moreover, the entry in the name of the first defendant and his vendor was made on the same date namely, 18.12.1987 and the suit O S No.334/1987 was also filed on the same date. The first defendant has failed to produce materials on record to show that the plaintiffs had the knowledge of the sale deed in favour of the first defendant and entry of his name in the revenue records as on the date of filing the earlier suit but still failed to seek such a relief in the earlier suit. Therefore, this substantial question of law is to be answered in favour of the plaintiffs.
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41. The lower appellate court has held based on recitals in the sale deeds and also the revenue entries that the earlier purchasers were in possession and now the first defendant is in possession. The revenue entries no doubt have a presumptive value unless the contrary is proved. In the instant case, the revenue entries are based on the sale deeds which are declared as nullity by the competent civil court. Therefore, the presumptive value relating to revenue entries is lost and cannot be based any further to conclude that the possession is either delivered in favour of the purchasers or that the first defendant is in possession of the suit schedule property. The lower appellate court has failed to note that possession of the entire ancestral joint family property could not have been delivered by the father of the plaintiffs as he had no absolute right to alienate the entire extent of the suit schedule property.
42. The lower appellate court has stated in Para-40 of the judgment that there are no documents as to the minorship of the plaintiffs. Ex.P126 is the genealogical tree as on the date of filing of the suit O S No.647/1995 (O S No.25/2006) in which age of the plaintiffs is mentioned. The first defendant has not disputed the 33 status and age of the plaintiffs. PW-1 has deposed in evidence as to the age of each plaintiff as on the date of filing the earlier suit. Therefore, the first appellate court is not correct in stating that no document and evidence is produced to show the minorship of the plaintiffs.
43. The lower appellate court has proceeded on the basis that Kartha of a joint family can alienate the joint family property for the benefit of the minors and for the development of the joint family properties. It is the case of the first defendant that the suit schedule property has been sold in order to acquire some other property based on the recitals in the sale deed. The sale was made on 15.4.1982 and the alleged purchase of some other property was in the year 1983. It is the case of the plaintiffs that the said property was purchased out of the contribution made by their mother. There are no materials on record to conclude that the father has reinvested the sale price in purchase of the property and there was necessity for father of the plaintiffs to sell the joint family property. The father of the plaintiffs had not taken proper care of minors' share while alienating the joint family property. The father had no absolute right to alienate the joint family property. In the 34 case on hand, the trial court was right in concluding that the sale deed executed by father of the plaintiffs is a nullity as he did not take care to protect the rights and interest of the minors.
44. The lower appellate court has made much of evidence of the PW-1 to the effect that he had no knowledge of vices of father and that he does not know how property was acquired in 1983. However, PW-1 has stated that he came to know about the vices through others. He was a minor and cannot be expected to know the vices of the father and transaction relating to the property. His concern is only to protect their right and interest over the ancestral joint family property. Only after attaining majority he has taken steps to challenge the alienation made by the father. The defendants who claim to be the purchasers have not taken proper care and caution before purchasing the suit schedule property. Had they referred to the partition deed under which the property came to father of the plaintiffs, they would have come to know that the suit schedule property is an ancestral joint family property and rights of the plaintiffs over the same.
45. The learned counsel for the defendant No.1 has relied upon the following judgments to advance the contention that 35 Article 109 of the Limitation Act is not applicable because it applies only when the alienee takes possession.
(a) AIR 1951 P&H 341 (Behari Lal vs., Dal Chand & Ors),
(b) AIR 1928 BOM 383 (Chintaman Balwant Dharmadhikari & others v. Bhagvan Ganapati Mankeshwar)
(c) AIR 1927 ALL 702
(d) AIR 1974 P&H 7 (D.B) (Bhagwan Dass v. Bhishan Chand & others)
46. I have gone through the above judgments. It is already held above that father of the plaintiffs could not have delivered possession of the entire suit schedule property it being an ancestral joint family property. It is the specific case of the plaintiffs that they are in continuous possession and enjoyment of the suit schedule property. This is supported by Ex.P6 RRT proceedings taken place between the plaintiffs and defendant No.1. The Deputy Tahsildar, Nada Katcheri, Attibele has passed an order that the order as per Ex.P6 is subject to the decision of the Civil Court. The plaintiffs have also produced RTC extracts which are marked as Ex.P7 to P23. Mutation extracts are produced as per Ex.P25 and P26. The photographs in respect of the suit schedule 36 properties are as Ex.P28 to P88. The copy of the legal notice is marked as Ex.P92. Ex.P93 is the proceedings before the Special Deputy Commissioner, Bangalore. The plaintiffs have also relied on the order of the Special Deputy Commissioner, Bangalore. Ex.P95 is the order passed in RRT No.5/2001-02. Index of lands and Record of rights are marked as Ex.P96 to P98. The copy of the Mahazar is marked as Ex.P102. The mutation extracts are marked as Ex.P103 & P104. A copy of the complaint given by the plaintiff is marked as Ex.P105. Ex.P109 is an endorsement issued by the P.S.I of Attibele. Ex.P110 is the order of the Special Deputy Commissioner, Bangalore. Ex.P111 is an endorsement issued by the Police Commissioner. The tax paid receipts are marked as Ex.P112 and P113. The receipts issued by the Forester are marked as Ex.P119 and P120. Therefore, it is Section 109 of Limitation Act that is applicable to the case on hand and the period of limitation is 12 years from the date of the sale deed.
47. The learned counsel for the first defendant has relied upon the following decisions to advance the contention that sale to 37 purchase another property is for the benefit of the family, cannot be questioned.
(a) AIR 1979 ALL 65 (Hari Singh & another v. Umrao Singh & another)
(b) AIR 1928 ALL 454 (Jagal Narain & another v. Mathura Das & others)
(c) AIR 1957 MP 175 (Udebhan Rajaram v. Vikram Ganu)
49. It is already held in the above paragraphs that sale in the instant case though it is stated in the sale deed it is for acquiring some other property for the benefit of the family, nothing is placed on record that in fact the sale proceeds were utilized for acquiring some other property for the benefit of the family. It is stated in the sale deed Ex.P1 that there were no family debts necessitating the sale of the property. The plaintiffs have contended that on being questioned the father about the alienation, he has stated that he has not alienated the property but signed only surety bonds relating to loan transaction. Further it is the case of the plaintiffs that some other properties were acquired in the name of their father by the contribution of their mother out 38 of the amounts paid to her by her parents and brothers. In the absence of proper materials, it cannot be held that the suit schedule property was sold for acquiring some other property and as a result such property was in fact acquired. Therefore, the principles of the above decisions cannot be applied to the present case.
50. For the above reasons, I am of the view that the trial court has correctly appreciated the materials on record and has come to correct conclusions and justified in passing the judgment and decree. The lower appellate court has erred in interfering with the said considered judgment and decree.
Accordingly, this appeal is allowed. The judgment and decree of the lower appellate court is set aside and that of the trial court is hereby confirmed.
Sd/-
JUDGE akd