Karnataka High Court
C Chinnappa vs Mr P Chandramouly S/O.Late ... on 22 April, 2014
Author: Ashok B.Hinchigeri
Bench: Ashok B. Hinchigeri
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 22ND DAY OF APRIL, 2014
BEFORE
THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI
R.F.A.No.1182/2010 (DEC/INJ)
C/W R.F.A.Nos.1162/2010, 1158/2010, 1163/2010,
1160/2010, 1159/2010, 1156/2010, 1157/2010,
1183/2010, 1155/2010, 1161/2010 and 569/2011
R.F.A.No.1182/2010
BETWEEN:
C.Chinnappa,
Aged about 43 years,
S/o late Chinnaswamappa,
Elumalai Building,
Basavanapura Main Road,
Bangalore - 560 049. ... Appellant
(By Sri A.G.Sridhar, Advocate)
AND:
1. Mr.P.Chandramouly,
Aged about 50 years,
S/o late Ramachandraiah,
Alleged to be R/at No.69,
CMC Khatha No.294 formed
In Sy.No.50/2, Hoody Village,
KR Puram Hobli, Presently called
as Ayyappanagar,
Mahadevapura CMC,
Bangalore - 560 036.
2. Mr.C.Gopal,
Aged about 55 years,
S/o late Doddachannappa.
2
3. Mr.D.G.Satish Kumar,
Aged about 33 years,
S/o Sri C.Gopal.
4. Mr.D.G.Harish Kumar,
Aged about 30 years,
S/o Sri C.Gopal.
5. Mr.D.Muniswamappa,
Aged about 56 years,
S/o late Doddachannappa.
All R/o Devasandra Village,
KR Puram Hobli, Banglore East Taluk,
Bangalore - 560 049.
6. Mr.K.Sreeramulu,
Aged about 64 years,
S/o late K.Krishnaiah Setty,
No.95, Old Madras Road,
Ulsoor, Bangalore - 560 008. ... Respondents
(By Sri N.Savanur, Advocate for R-1,
Sri R.Vijayakumar, Advocate for R-2 to R-5,
Sri K.Varadarajan, Advocate for R-6)
This Regular First Appeal is filed under Section 96 of the
CPC against the judgment and decree dated 24.5.2010 passed in
O.S.No.9554/2006 on the file of the XXIV Additional City Civil
and Sessions Judge, Bangalore, (CCH 6), decreeing the suit for
declaration and permanent injunction and etc.
R.F.A.No.1162/2010
BETWEEN:
C.Chinnappa,
Aged about 43 years,
S/o late Chinnaswamappa,
Elumalai Building,
Basavanapura Main Road,
Bangalore - 560 049. ... Appellant
(By Sri A.G.Sridhar, Advocate)
3
AND:
1. Smt.Bhagyamma,
Aged about 43 years,
W/o Seshadri,
Kirti Nilaya, Basavanapura Main Road,
Devasandra, KR Puram Post,
Bangalore - 560 036.
2. Mr.C.Gopal,
Aged about 55 years,
S/o late Doddachannappa.
3. Mr.D.G.Satish Kumar,
Aged about 33 years,
S/o Sri C.Gopal.
4. Mr.D.G.Harish Kumar,
Aged about 30 years,
S/o Sri C.Gopal.
5. Mr.D.Muniswamappa,
Aged about 56 years,
S/o late Doddachannappa.
All R/o Devasandra Village,
KR Puram Hobli, Banglore East Taluk,
Bangalore - 560 049.
6. Mr.K.Sreeramulu,
Aged about 64 years,
S/o late K.Krishnaiah Setty,
No.95, Old Madras Road,
Ulsoor, Bangalore - 560 008. ... Respondents
(By Sri N.Savanur, Advocate for R-1,
Sri R.Vijayakumar, Advocate for R-2 to R-5,
Sri K.Varadarajan, Advocate for R-6)
This Regular First Appeal is filed under Section 96 of the
CPC against the judgment and decree dated 24.5.2010 passed in
O.S.No.10199/2006 on the file of the XXIV Additional City Civil
and Sessions Judge, Bangalore, (CCH 6), decreeing the suit for
declaration and permanent injunction and etc.
4
R.F.A.No.1158/2010
BETWEEN:
C.Chinnappa,
Aged about 43 years,
S/o late Chinnaswamappa,
Elumalai Building,
Basavanapura Main Road,
Bangalore - 560 049. ... Appellant
(By Sri A.G.Sridhar, Advocate)
AND:
1. Mr.G.Karunanidhi,
Aged about 36 years,
S/o late C.Govindaswamy,
No.62, G.No.15th Street, Jogupalya,
Ulsoor, Bangalore - 560 008.
2. Mr.C.Gopal,
Aged about 55 years,
S/o late Doddachannappa.
3. Mr.D.G.Satish Kumar,
Aged about 33 years,
S/o Sri C.Gopal.
4. Mr.D.G.Harish Kumar,
Aged about 30 years,
S/o Sri C.Gopal.
5. Mr.D.Muniswamappa,
Aged about 56 years,
S/o late Doddachannappa.
All R/o Devasandra Village,
KR Puram Hobli, Banglore East Taluk,
Bangalore - 560 049.
5
6. Mr.K.Sreeramulu,
Aged about 64 years,
S/o late K.Krishnaiah Setty,
No.95, Old Madras Road,
Ulsoor, Bangalore - 560 008. ... Respondents
(By Sri N.Savanur, Advocate for R-1,
Sri R.Vijayakumar, Advocate for R-2 to R-5,
Sri K.Varadarajan, Advocate for R-6)
This Regular First Appeal is filed under Section 96 of the
CPC against the judgment and decree dated 24.5.2010 passed in
O.S.No.11245/2006 on the file of the XXIV Additional City Civil
and Sessions Judge, Bangalore, (CCH 6), decreeing the suit for
declaration and permanent injunction and etc.
R.F.A.No.1163/2010
BETWEEN:
C.Chinnappa,
Aged about 43 years,
S/o late Chinnaswamappa,
Elumalai Building,
Basavanapura Main Road,
Bangalore - 560 049. ... Appellant
(By Sri A.G.Sridhar, Advocate)
AND:
1. Mrs.Julie,
Aged about 42 years,
W/o C.Raja,
No.36, 3rd Block,
Ayyappanagar, KR Puram,
Mahadevapura CMC,
Bangalore - 560 086.
2. Mr.C.Gopal,
Aged about 55 years,
S/o late Doddachannappa.
6
3. Mr.D.G.Satish Kumar,
Aged about 33 years,
S/o Sri C.Gopal.
4. Mr.D.G.Harish Kumar,
Aged about 30 years,
S/o Sri C.Gopal.
5. Mr.D.Muniswamappa,
Aged about 56 years,
S/o late Doddachannappa.
All R/o Devasandra Village,
KR Puram Hobli, Banglore East Taluk,
Bangalore - 560 049.
6. Mr.K.Sreeramulu,
Aged about 64 years,
S/o late K.Krishnaiah Setty,
No.95, Old Madras Road,
Ulsoor, Bangalore - 560 008. ... Respondents
(By Sri N.Savanur, Advocate for R-1,
Sri R.Vijayakumar, Advocate for R-2 to R-5,
Sri K.Varadarajan, Advocate for R-6)
This Regular First Appeal is filed under Section 96 of the
CPC against the judgment and decree dated 24.5.2010 passed in
O.S.No.4436/2007 on the file of the XXIV Additional City Civil
and Sessions Judge, Bangalore, (CCH 6), decreeing the suit for
declaration and permanent injunction and etc.
R.F.A.No.1160/2010
BETWEEN:
C.Chinnappa,
Aged about 43 years,
S/o late Chinnaswamappa,
Elumalai Building,
Basavanapura Main Road,
Bangalore - 560 049. ... Appellant
(By Sri A.G.Sridhar, Advocate)
7
AND:
1. Mr.T.Maheswara Reddy,
Aged about 44 years,
S/o T.Divakar Reddy,
No.9, 6th Cross, 3rd Block,
Ayyappanagar, KR Puram,
Bangalore - 560 008.
2. Mr.C.Gopal,
Aged about 55 years,
S/o late Doddachannappa.
3. Mr.D.G.Satish Kumar,
Aged about 33 years,
S/o Sri C.Gopal.
4. Mr.D.G.Harish Kumar,
Aged about 30 years,
S/o Sri C.Gopal.
5. Mr.D.Muniswamappa,
Aged about 56 years,
S/o late Doddachannappa.
All R/o Devasandra Village,
KR Puram Hobli, Banglore East Taluk,
Bangalore - 560 049.
6. Mr.K.Sreeramulu,
Aged about 64 years,
S/o late K.Krishnaiah Setty,
No.95, Old Madras Road,
Ulsoor, Bangalore - 560 008. ... Respondents
(By Sri N.Savanur, Advocate for R-1,
Sri R.Vijayakumar, Advocate for R-2 to R-5,
Sri K.Varadarajan, Advocate for R-6)
This Regular First Appeal is filed under Section 96 of the
CPC against the judgment and decree dated 24.5.2010 passed in
O.S.No.1042/2007 on the file of the XXIV Additional City Civil
and Sessions Judge, Bangalore, (CCH 6), decreeing the suit for
declaration and permanent injunction and etc.
8
R.F.A.No.1159/2010
BETWEEN:
C.Chinnappa,
Aged about 43 years,
S/o late Chinnaswamappa,
Elumalai Building,
Basavanapura Main Road,
Bangalore - 560 049. ... Appellant
(By Sri A.G.Sridhar, Advocate)
AND:
1. Mr.Mariyappa,
Aged about 54 years,
S/o Kodaiah @ Gangaiah,
R/at No.23, Siddappaji Nilaya,
7th Cross, Ayyappanagar, KR Puram Post,
Bangalore - 560 036.
2. Mr.C.Gopal,
Aged about 55 years,
S/o late Doddachannappa.
3. Mr.D.G.Satish Kumar,
Aged about 33 years,
S/o Sri C.Gopal.
4. Mr.D.G.Harish Kumar,
Aged about 30 years,
S/o Sri C.Gopal.
5. Mr.D.Muniswamappa,
Aged about 56 years,
S/o late Doddachannappa.
All R/o Devasandra Village,
KR Puram Hobli, Banglore East Taluk,
Bangalore - 560 049.
9
6. Mr.K.Sreeramulu,
Aged about 64 years,
S/o late K.Krishnaiah Setty,
No.95, Old Madras Road,
Ulsoor, Bangalore - 560 008. ... Respondents
(By Sri N.Savanur, Advocate for R-1,
Sri R.Vijayakumar, Advocate for R-2 to R-5,
Sri K.Varadarajan, Advocate for R-6)
This Regular First Appeal is filed under Section 96 of the
CPC against the judgment and decree dated 24.5.2010 passed in
O.S.No.10197/2006 on the file of the XXIV Additional City Civil
and Sessions Judge, Bangalore, (CCH 6), decreeing the suit for
declaration and permanent injunction and etc.
R.F.A.No.1156/2010
BETWEEN:
C.Chinnappa,
Aged about 43 years,
S/o late Chinnaswamappa,
Elumalai Building,
Basavanapura Main Road,
Bangalore - 560 049. ... Appellant
(By Sri A.G.Sridhar, Advocate)
AND:
1. Mr.S.Balu,
Aged about 41 years,
S/o Late Somashekar,
No.65, 3rd Block, 7th Main,
Ayyappanagar, KR Purma Post,
Bangalore - 560 036.
2. Mr.C.Gopal,
Aged about 55 years,
S/o late Doddachannappa.
10
3. Mr.D.G.Satish Kumar,
Aged about 33 years,
S/o Sri C.Gopal.
4. Mr.D.G.Harish Kumar,
Aged about 30 years,
S/o Sri C.Gopal.
5. Mr.D.Muniswamappa,
Aged about 56 years,
S/o late Doddachannappa.
All R/o Devasandra Village,
KR Puram Hobli, Banglore East Taluk,
Bangaore - 560 049.
6. Mr.K.Sreeramulu,
Aged about 64 years,
S/o late K.Krishnaiah Setty,
No.95, Old Madras Road,
Ulsoor, Bangalore - 560 008. ... Respondents
(By Sri N.Savanur, Advocate for R-1,
Sri R.Vijayakumar, Advocate for R-2 to R-5,
Sri K.Varadarajan, Advocate for R-6)
This Regular First Appeal is filed under Section 96 of the
CPC against the judgment and decree dated 24.5.2010 passed in
O.S.No.10195/2006 on the file of the XXIV Additional City Civil
and Sessions Judge, Bangalore, (CCH 6), decreeing the suit for
declaration and permanent injunction and etc.
R.F.A.No.1157/2010
BETWEEN:
C.Chinnappa,
Aged about 43 years,
S/o late Chinnaswamappa,
Elumalai Building,
Basavanapura Main Road,
Bangalore - 560 049. ... Appellant
(By Sri A.G.Sridhar, Advocate)
11
AND:
1. Mrs.Priya Malini,
Aged about 33 years,
W/o S.Balu,
No.65, 7th Main, 3rd Block,
Ayyappanagar, KR Puram Post,
Bangalore - 560 036.
2. Mr.C.Gopal,
Aged about 55 years,
S/o late Doddachannappa.
3. Mr.D.G.Satish Kumar,
Aged about 33 years,
S/o Sri C.Gopal.
4. Mr.D.G.Harish Kumar,
Aged about 30 years,
S/o Sri C.Gopal.
5. Mr.D.Muniswamappa,
Aged about 56 years,
S/o late Doddachannappa.
All R/o Devasandra Village,
KR Puram Hobli, Banglore East Taluk,
Bangalore - 560 049.
6. Mr.K.Sreeramulu,
Aged about 64 years,
S/o late K.Krishnaiah Setty,
No.95, Old Madras Road,
Ulsoor, Bangalore - 560 008. ... Respondents
(By Sri N.Savanur, Advocate for R-1,
Sri R.Vijayakumar, Advocate for R-2 to R-5,
Sri K.Varadarajan, Advocate for R-6)
This Regular First Appeal is filed under Section 96 of the
CPC against the judgment and decree dated 24.5.2010 passed in
O.S.No.10196/2006 on the file of the XXIV Additional City Civil
and Sessions Judge, Bangalore, (CCH 6), decreeing the suit for
declaration and permanent injunction and etc.
12
R.F.A.No.1183/2010
BETWEEN:
C.Chinnappa,
Aged about 43 years,
S/o late Chinnaswamappa,
Elumalai Building,
Basavanapura Main Road,
Bangalore - 560 049. ... Appellant
(By Sri A.G.Sridhar, Advocate)
AND:
1. Mr.P.Vijaya Singh,
Aged about 48 years,
S/o late S.Prem Singh,
Alleged to be R/at No.51,
CMC Khatha No.282 formed
In Sy.No.50/2, Hoody Village,
KR Puram Hobli, presently called
As Ayyappanagar, Mahadevapura CMC,
Bangalore - 560 036.
2. Mr.C.Gopal,
Aged about 55 years,
S/o late Doddachannappa.
3. Mr.D.G.Satish Kumar,
Aged about 33 years,
S/o Sri C.Gopal.
4. Mr.D.G.Harish Kumar,
Aged about 30 years,
S/o Sri C.Gopal.
5. Mr.D.Muniswamappa,
Aged about 56 years,
S/o late Doddachannappa.
13
All R/o Devasandra Village,
KR Puram Hobli, Banglore East Taluk,
Bangalore - 560 049.
6. Mr.K.Sreeramulu,
Aged about 64 years,
S/o late K.Krishnaiah Setty,
No.95, Old Madras Road,
Ulsoor, Bangalore - 560 008. ... Respondents
(By Sri N.Savanur, Advocate for R-1,
Sri R.Vijayakumar, Advocate for R-2 to R-5,
Sri K.Varadarajan, Advocate for R-6)
This Regular First Appeal is filed under Section 96 of the
CPC against the judgment and decree dated 24.5.2010 passed in
O.S.9556/2006 on the file of the XXIV Additional City Civil and
Sessions Judge, Bangalore, (CCH 6), decreeing the suit for
eclaration and permanent injunction and etc.
R.F.A.No.1155/2010
BETWEEN:
C.Chinnappa,
Aged about 43 years,
S/o late Chinnaswamappa,
Elumalai Building,
Basavanapura Main Road,
Bangalore - 560 049. ... Appellant
(By Sri A.G.Sridhar, Advocate)
AND:
1. Mr.S.Balu,
Aged about 40 years,
S/o late Somashekar,
No.65, 7th Main, 3rd Block,
Ayyappanagar, KR Puram Post,
Bangalore - 560 036.
14
2. Mr.C.Gopal,
Aged about 55 years,
S/o late Doddachannappa.
3. Mr.D.G.Satish Kumar,
Aged about 33 years,
S/o Sri C.Gopal.
4. Mr.D.G.Harish Kumar,
Aged about 30 years,
S/o Sri C.Gopal.
5. Mr.D.Muniswamappa,
Aged about 56 years,
S/o late Doddachannappa.
All R/o Devasandra Village,
KR Puram Hobli, Banglore East Taluk,
Bangalore - 560 049.
6. Mr.K.Sreeramulu,
Aged about 64 years,
S/o late K.Krishnaiah Setty,
No.95, Old Madras Road,
Ulsoor, Bangalore - 560 008. ... Respondents
(By Sri N.Savanur, Advocate for R-1,
Sri R.Vijayakumar, Advocate for R-2 to R-5,
Sri K.Varadarajan, Advocate for R-6)
This Regular First Appeal is filed under Section 96 of the
CPC against the judgment and decree dated 24.5.2010 passed in
O.S.10194/2006 on the file of the XXIV Additional City Civil and
Sessions Judge, Bangalore, (CCH 6), decreeing the suit for
declaration and permanent injunction and etc.
R.F.A.No.1161/2010
BETWEEN:
C.Chinnappa,
Aged about 43 years,
S/o late Chinnaswamappa,
15
Elumalai Building,
Basavanapura Main Road,
Bangalore - 560 049. ... Appellant
(By Sri A.G.Sridhar, Advocate)
AND:
1. Mr.Bathyappa,
S/o Chikkamuniyappa,
Major,
No.72, Devasandra Main Road,
Near Garden City Club,
KR Puram Post,
Bangalore - 560 036.
2. Mr.C.Gopal,
Aged about 55 years,
S/o late Doddachannappa.
3. Mr.D.G.Satish Kumar,
Aged about 33 years,
S/o Sri C.Gopal.
4. Mr.D.G.Harish Kumar,
Aged about 30 years,
S/o Sri C.Gopal.
5. Mr.D.Muniswamappa,
Aged about 56 years,
S/o late Doddachannappa.
All R/o Devasandra Village,
KR Puram Hobli, Banglore East Taluk,
Bangalore - 560 049.
6. Mr.K.Sreeramulu,
Aged about 64 years,
S/o late K.Krishnaiah Setty,
No.95, Old Madras Road,
Ulsoor, Bangalore - 560 008. ... Respondents
16
(By Sri N.Savanur, Advocate for R-1,
Sri R.Vijayakumar, Advocate for R-2 to R-5,
Sri K.Varadarajan, Advocate for R-6)
This Regular First Appeal is filed under Section 96 of the
CPC against the judgment and decree dated 24.5.2010 passed in
O.S.No.10198/2006 on the file of the XXIV Additional City Civil
and Sessions Judge, Bangalore, (CCH 6), decreeing the suit for
declaration and permanent injunction and etc.
R.F.A.No.569/2011
BETWEEN:
1. Sri K.Natesh,
S/o Sri K.L.Narayan,
Aged about 47 years.
2. Smt.H.N.Bhavani,
W/o Sri K.Natesh,
Aged about 45 years.
Both R/at Flat No.33,
7th Main Road, Malleshwaram,
Bangalore - 560 003. ... Appellants
(By Sri N.Savanur, Advocate)
AND:
1. Sri C.Chinnappa,
Aged about 44 years,
S/o late Chinnaswamappa,
Elumalai Building,
Basavanapura Main Road,
Bangalore - 560 049.
2. Mr.C.Gopal,
Aged about 55 years,
S/o late Doddachannappa.
3. Mr.D.G.Satish Kumar,
Aged about 33 years,
S/o Sri C.Gopal.
17
4. Mr.D.G.Harish Kumar,
Aged about 30 years,
S/o Sri C.Gopal.
No.2 to 4 are R/at Devasandra Village,
K.R.Puram Hobli, Bangalore East Taluk,
Bangalore - 560 049. ... Respondents
(By Sri A.G.Sridhar, Advocate for R-1,
R-2 to R-4 served)
This Regular First Appeal is filed under Section 96, Order
XLI, Rule-1 of the CPC against the judgment and decree dated
03.2.2011 passed in O.S.No.7887/2007 on the file of the XXIV
Addl. City Civil Judge, (CCH 16), Bangalore city, dismissing the
suit for declaration and permanent injunction and etc.
These Regular First Appeals having been heard and
reserved on 3.2.2014 coming on for pronouncement of judgment
this day, the Court delivered the following:
JUDGMENT
All these appeals, except R.F.A.No.569/2011 are filed by the defendant No.5 aggrieved by the judgments and decrees, all dated 24.5.2010 passed by the Court of the XXIV Additional City Civil and Sessions Judge, Bangalore in O.S.No.9554/2006, 10199/2006, 11245/2006, 4436/2006, 1042/2007, 10197/2006, 10195/2006, 10196/2006, 9556/2006, 10194/2006 and 10198/2006 decreeing the suits.
2. R.F.A.No.569/2011 is filed by the plaintiffs aggrieved by the judgment and decree, dated 3.2.2011 passed by the 18 Court of the XVII Additional City Civil Judge (CCH-16), Bangalore in O.S.No.7887/2007 dismissing their suit.
3. The narration of the facts of the first batch of appeals is with reference to O.S.No.9554/2006. In all of them, the identical judgments are rendered on the identical set of facts. To avoid the confusion, the parties are being referred to as per their ranks in the suit proceedings. The plaintiff (respondent No.1 herein) filed the suit seeking the relief of declaration that the judgment and decree, dated 4.9.2006 in O.S.No.7425/2006 and the judgment and decree, dated 26.9.2006 in O.S.No.8296/2006 are null and void and are not binding on the plaintiff in as far as they pertain to the suit schedule property. The further relief sought is for declaring that the documents created pursuant to the said decrees are null and void and are not binding upon him. He has also sought the permanent injunction against the defendants for restraining them from interfering in his peaceful possession and enjoyment of the suit schedule property. The plaintiff's case in brief is that the property bearing Survey No.50/2 of Hoodi Village measuring 3 acres 22 guntas originally belonged to Sri Dodda Channnappa. It has fallen to the share of the said Dodda Channnappa in the family partition deed, dated 18.7.1985. 19 Dodda Channnappa along with his family members, including the first defendant, executed the registered general power of attorney in favour of the defendant No.6. The defendant No.6 formed the revenue layout on the said land carving out 91 sites of different measurements. One such site is sold to one Manickyam, who in turn sold it to the plaintiff for a valuable consideration. It bears site No.69, which is morefully described in the suit schedule. The plaintiff claims that the khatha is mutated in his name and that he has been paying the property tax regularly.
4. It is the grievance of the plaintiff that the defendant No.5 (appellant herein) illegally created the sale agreement in his (fifth defendant's) name in collusion with the defendant Nos.1 to 4 and thereafter filed O.S.No.7425/2006 seeking the relief of specific performance of the agreement, dated 19.8.2006. The compromise decree was obtained without making the 91 purchasers as parties to the said suit. Thereafter, the defendant No.5 filed one more collusive suit, namely, O.S.No.8296/2006 for injunction, which also came to be disposed of recording the compromise. The plaintiff claims to have constructed the house and to have been residing with his 20 family in the suit schedule property. As the collusive decrees were affecting his interest, he filed the suit.
5. On the service of notice, the defendant Nos.1 to 3 appeared before the Court and sought leave of the Court to file the written statement belatedly. The Trial Court granted the conditional permission to them to file the written statement by paying the cost of `600/-. As they did not pay the cost, the written statement filed by them was not taken on record. The defendant No.4 remained exparte.
6. The defendant No.5 filed the written statement by paying the cost. The defendant No.5 resisted the suit denying the plaint averments. The execution of the power of attorney in favour of the defendant No.6, formation of the layout consisting of 91 sites, etc. were specifically denied. The defendant No.5 claims to have purchased 1 acre 31 guntas of land at Survey No.50/2 from the defendant Nos.1 to 3 by a registered sale deed, dated 6.10.2006. He claims that he was put in possession in 1985 itself by a sale agreement, dated 1.4.1985. He justified the passing of the compromise decrees in O.S.No.8296/2006 21 and O.S.No.7425/2006. He denied that any construction has come up on the suit schedule property.
7. The defendant No.6 filed the written statement claiming that the land at Survey No.50/2 of Hoodi Village measuring 9 acre 25 guntas originally belonged to Papaiah. On his demise, the oral family partition took place amongst his sons, in which 3 acres 22 guntas fell to the share of Dodda Channnappa (his sons Muniswamappa and Gopal), 3 acres 9 guntas fell to the share of Chikka Channappa (his sons C.Sudarshan, C.Krishnappa and Shekar) and 3 acres 9 guntas to Sri D.Govindappa (his sons Jayasheela and Ravi Shekar). They entered into an agreement of sale in favour of the defendant No.6 in respect of 5 acres 25 guntas of the said land. They entered into an agreement, dated 20.5.1987 to sell the entire land to the defendant No.6. He also claims to be the registered power of attorney holder of the persons claiming under Dodda Channnappa in respect of the lands in question. He claims to have obtained the non- agricultural conversion and the approval for the layout and thereafter formed the layout and sold the sites to various persons. He alleges that the decrees in O.S.No.7425/2006 and O.S.No.8296/2006 are obtained behind the back of himself and 22 of the plaintiff by suppressing the material facts, which amounts to the abuse of the process of court.
8. Based on the rival pleadings, the Trial Court formulated the following issues:
1. Whether the plaintiff proves the judgment and decree passed in O.S.No.7425/06 is null and void and same is not binding on him? If so, whether the plaintiff is entitled for cancellation of said judgment?
2. Whether the plaintiff proves the judgment and decree passed in OS 8296/06 is null and void and same is not binding on him? If so, whether the plaintiff is entitled for cancellation of said judgment?
3. Whether the plaintiff proves that documents created on the basis of the decree in OS 7425/06 and in OS 8296/06 in favour of the 5th defendant or any other person are not binding upon him?
4. Whether the plaintiff proves the interference of the defendant?
5. Whether the plaintiff is entitled for the relief of permanent injunction?
6. Whether the suit is properly valued and court fee paid is sufficient?
7. What decree or order?23
9. The plaintiff got himself examined as PW1. He examined another site-holder in the same layout as PW2. Ex.P1 to Ex.P12 were marked in the course of his examination-in-chief. Ex.P13 to Ex.P47 were marked in the course of the cross- examination of DW1 and DW2. The defendant No.5 was examined as DW1. The defendant No.6 was examined as DW2. Ex.D1 to Ex.D49 are marked in Exhibit 'D' series.
10. Based on the pleadings, oral and documentary evidence placed on its record, the Trial Court answered the contentious issues in favour of the plaintiff and decreed the suit.
11. R.F.A.No.569/2011 is filed by the plaintiffs aggrieved by the dismissal of their suit (O.S.No.7887/2007) by the XVII Additional City Civil Judge (CCH - 16), Bangalore, dated 3.2.2011. The suit was filed seeking the relief of declaration that the judgments and decrees in O.S.Nos.7425/2006 and 8296/2006 are not binding upon them. Further, they also sought the relief of permanent injunction and the damages.
12. The case of the appellant - plaintiffs in R.F.A.No.569/2011 is that they are the absolute owners of the suit schedule property bearing site Nos.65 and 66 and khatha 24 No.239. The plaintiffs have purchased the suit schedule property by a registered sale deed, dated 15.3.1996 executed by Sri K.Sriramulu. They have paid a valuable consideration of `3,72,000/-. They have raised the housing loan from Vijaya Bank in that regard. After purchasing it, they have been paying the property tax. The first respondent - defendant is a stranger to the appellant - plaintiffs and the suit schedule properties. Dodda Channappa, the original owner of the lands in question has executed the registered general power of attorney in favour of Sri K.Sriramulu. It binds the respondent - defendant Nos.2 to 4, as they are the L.R.s of the said Dodda Channappa. In September 2007, a notice was put on the wall of the houses that they are the disputed properties in O.S.No.7425/2006 and O.S.No.8296/2006. This has driven them to institute the suit. The compromise decrees passed in O.S.No.7425/2006 and O.S.No.8296/2006 are not binding on the appellant - plaintiffs, as they are obtained behind their back.
13. The first respondent - defendant filed the written statement contending that there is no cause of action for the suit. The plaintiffs are not the owners of the schedule properties, as the sale deed stated to have been executed in their favour is 25 not binding upon the first defendant. The defendant Nos.2 to 4, who are the L.R.s of Dodda Channappa have not signed the general power of attorney document. It is denied that any board was put up on the wall of the suit schedule property. But he admitted that the present suit schedule property is included in the subject-matter of O.S.No.7425/2006 and O.S.No.8296/2006. On the passing of the compromise decree, the defendant Nos.2 to 4 have sold 1 acre 31 guntas of the land to the first defendant. The said land is at Survey No.50/2. It is denied that the first defendant has ever interfered in the enjoyment of the suit schedule property. There is no RCC building on the suit schedule property. It has remained a vacant site.
14. Based on the rival pleadings, the Trial Court framed the following issues:
1. MJ¸ï £ÀA:7425/2006 ºÁUÀÆ MJ¸ï £ÀA:8296/2006 gÀ°è DzÀAvÀºÀ wÃ¥ÀÄð ªÀÄvÀÄÛ rQæ ªÁ¢AiÀÄjUÉ CxÀªÁ ªÁ¢AiÀÄgÀ zÁªÉ ¸ÀéwÛUÉ §AzsÀü£ÀPÁj DUÀĪÀÅ¢®èªÉAzÀÄ ªÁ¢AiÀÄgÀÄ gÀÄdĪÁvÀÄ¥Àr¹zÁÝgÉAiÉÄ?
2. ¨ÁrUÉzÁgÀgÀ ªÀÄÄSÁAvÀgÀ vÁ£ÀÄ zÁªÉ ¸ÀéwÛ£À PÁ£ÀÆ£ÀħzÀÞªÁzÀ ¸Áé¢üãÀzÀ°èzÉÝãÉAzÀÄ ªÁ¢ gÀÄdĪÁvÀÄ¥Àr¹zÁÝgÉAiÉÄ?
3. ±Á±ÀévÀ ¤§ðAzsÀPÁYÉÕAiÀÄ£ÀÄß ¥ÀqÉAiÀÄ®Ä ªÁ¢ CºÀðjzÁÝgÉAiÉÄ?26
4. °TvÀ ºÉýPÉ ¸À°è¹zÁUÀ ¸ÀgÉÖ £ÉÃA:50/2 gÀ°ègÄÀ ªÀ MAzÀÄ JPÀgÉ 31 UÀÄAmÉ ¸ÀévÀÄÛ SÁ° d«Ä£ÁVvÀÄÛ JAzÀÄ 1£Éà ¥ÀæwªÁ¢ gÀÄdĪÁvÀÄ¥Àr¹zÁÝgÉAiÉÄ?
5. MJ¸ï £ÀA:7425/2006 ºÁUÀÆ MJ¸ï £ÀA:8296/2006 gÀ°è ¤ÃrzÀAvÀºÀ wÃ¥ÀÄð ªÀÄvÀÄÛ rQæ ªÁ¢AiÀÄjUÉ §AzsÀ£ÀPÁjAiÀiÁUÀÄvÀÛzÉ JAzÀÄ 1£Éà ¥ÀæwªÁ¢ gÀÄdĪÁvÀÄ¥Àr¹zÁÝgÉAiÉÄ?
6. £ÁåAiÀiÁ®AiÀÄ ±ÀÄ®Ì PÉÆnÖzÀÄÝ ¸Àj E®èªÉAzÀÄ 1£Éà ¥ÀæwªÁ¢ gÀÄdĪÁvÀÄ¥Àr¹zÁÝgÉAiÉÄ?
7. CªÀ±ÀåPÀ ¥ÀPÀëUÁgÀgÀ£ÀÄß ¸ÉÃj¸ÀzÉà EgÀĪÀÅzÀjAzÀ zÁªÉ HfðvÀ«®èªÉAzÀÄ 2 jAzÀ 4£Éà ¥ÀæwªÁ¢AiÀÄgÀÄ gÀÄdĪÁvÀÄ¥Àr¹zÁÝgÉAiÉÄ?
8. MAzÀÄ ®PÀë gÀÆ.UÀ¼À£ÀÄß £ÀµÀÖzÀ gÀÆ¥ÀzÀ°è ¥ÀjºÁgÀ ¥ÀqÉAiÀÄ®Ä vÁªÀÅ CºÀðjzÉÝêÉAzÀÄ ªÁ¢AiÀÄgÀÄ gÀÄdĪÁvÀÄ¥Àr¹zÁÝgÉAiÉÄ?
9. zÁªÉ ¸À°è¸À®Ä PÁgÀt EgÀ°®èªÉAzÀÄ ¥ÀæwªÁ¢AiÀÄgÀÄ gÀÄdĪÁvÀÄ¥Àr¹zÁÝgÉAiÉÄ?
10. K£ÀÄ DzÉñÀ CxÀªÁ rQæ?
15. The plaintiff No.1 is examined as PW1 marking the documents at Ex.P1 to Ex.P32. The defendants did not enter the witness box. No document is marked for them. They are content with cross-examining the PW1.
27
16. The Trial Court answered the contentious issues against the plaintiffs and dismissed the suit. Aggrieved by the same, R.F.A.No.569/2011 is filed.
17. Sri A.G.Sridhar, the learned counsel appearing for the appellants in all the appeals, except R.F.A.No.569/2011, submits that the PW1 in the course of cross-examination has admitted that all the parties, who claim under Dodda Channnappa have not affixed their signatures on the general power of attorney document purported to have been executed in favour of the defendant No.6. He takes exception to the alleged alienation of the properties without taking the permission of the civil court, as the minors' shares were involved therein. Admittedly, the defendant Nos.2 and 3 were minors at the time of the alleged execution of the general power of attorney in favour of the defendant No.6.
18. He submits that the Trial Court has not looked into the material documents placed on its record. He pointedly brings to my notice the endorsement at Ex.D17 issued by the Mahadevapura Municipality to the effect that it has not accorded 28 the approval to the formation of the layout for the land at Survey No.50/2.
19. The learned counsel submits that the perusal of the deposition of PW2 reveals that he had no knowledge as to how the property has changed the hands. The learned counsel submits that it is not in dispute that the entire property standing at Sy.No.50/2 originally belonged to Papaiah. He executed the registered Will (Ex.D45), dated 16.7.1971 in favour of Dodda Channappa. Papaiah died on 9.3.1979. He further brings to my notice, the partition deed (Ex.D44) executed on 5.8.1984 to support his submission that the land measuring 1 acre 31 guntas had fallen to the share of the first defendant.
20. The learned counsel submits that on 1.4.1985 the first defendant executed the sale agreement (Ex.D1) in favour of the fifth defendant's father in respect of 1 acre 31 guntas. The continued sale agreements at Exs.D1 to D6, the general power of attorney documents, sale agreements and the affidavits, which are at Exs.D7 to D15 have not been considered in their proper perspective. He submits that the general power of attorney document at Ex.D25 in favour of the defendant No.6 29 does not bear the signatures of the defendant Nos.2 and 3. He submits that the said general power of attorney is not even coupled with the consideration. He submits that there is no registered sale deed in favour of the defendant No.6. Even the sale agreement at Ex.D18 does not show that the full sale consideration came to be passed on to Dodda Channappa and others. He submits that the conversion orders, betterment orders, etc. stand in the name of Dodda Channappa and not in the name of the sixth defendant, who claims to be the general power of attorney holder of the parties claiming under Dodda Channappa.
21. Sri Sridhar submits that neither the plaintiff nor the defendant No.6 has produced the original approval order for the formation of the layout. He submits that what is produced is only a notarized copy. The said copy does not even bear the signature of the owner. Even assuming that the original was lost, the certified copy of the approval order ought to have been obtained and produced. He submits that the plaintiff has not taken out any witness summons to the officials of the erstwhile Hoodi Panchayat. According to him, the notarized copy of the approval order is a fake document.
30
22. The learned counsel submits that Dodda Channappa admittedly died on 8.2.2003. His power of attorney holder cannot sell the sites based on the power of attorney document alleged to have been executed by Dodda Channappa. He submits that as many as four sites are sold after the death of Dodda Channappa on 8.2.2003.
23. The learned counsel submits that the general power of attorney at Ex.P10 contains only the names. He submits that there is discrepancy in parties' signatures found on Ex.P10 and Ex.D25. He submits that the plaintiff has not got any witness to the general power of attorney document examined. He read out the following portion of the cross-examination of the defendant No.6 (DW2) by the appellant (defendant No.5):
"............I have converted 6 acres 25 guntas out of 9 acres 25 guntas. Remaining 3 acres I was unable to convert the land because the authorities refused it with a reason that there is a passage of high tension wires. Anyhow I formed the sites in that 3 acres and sold it to different persons".
24. Such a response only raises the cloud over the identity of the very suit schedule property. He emphatically submits that the sites, which the plaintiffs claim are not carved 31 out of the land measuring 1 acre 31 guntas, belonging to the defendant No.5.
25. The learned counsel submits that the plaintiff has no locus standi to challenge the compromise deeds between the defendant No.5 and the defendant Nos.1 to 3. He submits that the suit for injunction is not maintainable, as the plaintiff has not sought any relief of declaration that he is the owner of the suit schedule property. In support of his submission, he read out paragraph No.35 from the judgment of this Court in the case of SMT. NIRMALA v. NAVEEN CHHAGGAR AND ANOTHER reported in AIR 2007 KAR 40, which is as follows:
"35. I am of the view that the suit of the plaintiff for bare injunction without supporting declaration was not maintainable in law. The suit should have been dismissed on this aspect alone."
26. Nextly, he read out paragraph No.15 from the Calcutta High Court's decision in the case of SMT. NILIMA BOSE v. SANTOSH KUMAR GHOSH reported in AIR 1997 CALCUTTA
202. Paragraph No.15 read out by him is extracted hereinbelow:
"15. In this connection reference may be made to the provision of Section 34 of the Specific Relief Act wherefrom it will appear that any person entitled to any 32 legal character or to any right as to any property may institute suit against any person denying or interested to deny his title to such character or right, where the court may in its discretion make a declaration that he is so entitled. The object and the scope of the section is to perpetuate and strengthen testimony regarding title and to protect the same from adverse attack, that is, to prevent future litigation by removing existing cause of controversy not only to secure the plaintiff possession of the property wrongfully taken away from him or her but also to see that he or she is allowed to enjoy that property peacefully. In other words, if a cloud is cast upon the title of the plaintiff by denial of his legal character or right or by execution of any document which, if left outstanding would militate against such legal character or right and if some steps are not taken at once to have the doubts and difficulties removed, it may, at a later time, create difficulties for the plaintiff to prove his legal character or right as the evidence that is available now may not be forthcoming hereinafter."
27. He submits that the plaintiff cannot stand on the weakness, if any, found in the version of the defendants. To advance this submission, he has relied on the Apex Court's judgment in the case of RAMCHANDRA SAKHARAM MAHAJAN v. DAMODAR TRIMBAK TANKSALE (DEAD) AND OTHERS reported in (2007) 6 SCC 737.
33
28. Per contra, Sri N. Savanur, the learned counsel for the plaintiffs submits that the fifth defendant has played the fraud. He submits that the death certificate (Ex.D16) produced by the fifth defendant clearly shows that Dodda Channappa died on 8.2.2003. The two sale agreements, both dated 9.5.1986 (Ex.D2 and Ex.D3), further sale agreement, dated 10.4.1989 (Ex.D5) and further sale agreement, dated 30.3.1992 (Ex.D6) refer to the death of Dodda Channappa. When Dodda Channappa died on 8.2.2003, the reference to his death in the agreements created between 1986 and 1992 only goes to show that they are created for the purpose of the case.
29. Sri Savanur submits that the defendant No.5 has admitted in paragraph No.2 of the written statement that 3 acres 22 guntas of lands are acquired by Dodda Channappa under the family partition, dated 18.7.1985. However, the sale agreements executed by the defendant Nos.1 to 3 in favour of the defendant No.5 and his father state that the partition took place amongst the issues of Dodda Channappa on 5.8.1984. He would contend that the question of partition taking place amongst the sons of Dodda Channappa before the partitioning of the properties 34 between Dodda Channappa and his brothers would not arise at all. He submits that the DW1 (defendant No.5) has also admitted in the course of cross-examination that the partition between Dodda Channappa and his brothers took place only in 1985.
30. He submits that Ex.D44 and Ex.D45 are also fake documents. They are not referred to in the pleadings of the defendant No.5. He points out one more inconsistency in the version of the defendant No.5. In the Ex.D44, the extent of the land belonging to Dodda Channappa is shown as 5 acres. In paragraph No.2 of the written statement, the extent of the land belonging to Dodda Channappa is shown as 3 acres 22 guntas.
31. He also takes exception to the fifth defendant's father executing the sale agreement in favour of his son (defendant No.5) even when he (fifth defendant's father) himself had acquired no right and authority to execute the sale agreements. When the father is alive, the question of his son or son's son claiming the share in the property would not arise at all. In support of this submission, he read out the Head Note from this Court's decision in the case of Mrs. MALLIKA AND OTHERS v. 35 Mr. CHANDRAPPA AND OTHERS reported in ILR 2007 KAR 3216, which is extracted hereinbelow:
"HINDU SUCCESSION ACT, 1956-SECTION 8-Rules of Succession in the case of males under-Son inheriting the self acquired property of his father-HELD, The said property shall be treated as the individual property of the son and the heirs of the son will have no right in the said property as co-parceners-FURTHER HELD, Though under traditional Hindu Law, a son by his birth in the family gets a share in his father's ancestral property and becomes a co-parcener, that position is affected and modified by Section 8 of the Hindu Succession Act, 1956- Consequently, the property of the father who had separated from his family, on his death will be inherited and held by his sons in their individual capacity and son's son/sons will have no right therein as co-parceners-ON FACTS, HELD, Ten guntas of land in Sy.No.84/3A is the exclusive property of defendant No.1-The plaintiffs as sons did not have any right therein by their birth and therefore the sale deeds executed by the defendant No.1 in favour of the defendants No.2 to 5 were not affected by the plaintiffs being the members of the family since they had no right in the said property sold by defendant No.1- Hence, the suit filed by the plaintiffs is liable to be dismissed."
32. Sri Savanur, submits that the appellant - defendant No.5, who was examined as DW1, has this to say in the course of his cross-examination:
36
"The matter was posted before lokadalath and in the lokadalath we entered for compromise. I affixed my signature to the compromise petition at the lokadalath."
33. He submits that the order sheet (Ex.P8) maintained in O.S.No.7425/2006 shows that the said suit was never referred to the Lok Adalath.
34. The learned counsel submits that the defendant No.5 has no locus standi to challenge the general power of attorney and the sale agreement executed by the sons of Dodda Channappa and others in favour of the defendant No.6. Only their executants have the right to question the said documents. Similarly, the defendant No.5 has not and cannot raise any challenge to the sale deed executed in favour of the first respondent - plaintiff. In the absence of the defendant Nos. 1 to 4, the defendant No.5 cannot claim any right in the suit schedule property. He submits that the defendant Nos. 1 to 4, under whom the defendant No.5 claims, have not entered the witness box. They have not got the written statements accepted by the Trial Court by their own omission to pay the costs.
35. He relies on this Court's decision in the case of S.G.THIMMAPPA vs. T.ANANTHA AND OTHERS reported in 37 AIR 1986 Kar.1 to advance the contention that the compromise decree can always be challenged on the ground of fraud. As the compromise decree entered into between the defendant Nos.1 to 3 on one side and the defendant No.5 on the other side, comes in the way of the plaintiff enjoying the suit schedule properties, which he has lawfully purchased, he has filed the suit.
36. He also relied on the Apex Court's judgment in the case of SANTOSH vs. JAGAT RAM AND ANOTHER reported in 2010 AIR SCW 6540. He read out the head note portion, which is extracted hereinbelow:
"(A) Specific Relief Act (47 of 1963), S.34 - Suit for declaration - That decree suffered by plaintiff in favour of defendant was fraudulent - Plaintiff illiterate widow -
Written statement in that suit was filed on same day when plaint was filed - Evidence of plaintiff and defendants also recorded on same day - Judgment also made ready along with decree on same day - Appellate Court, however, instead of doubting such decree, believing Record-keeper of Court who produced files of summons - Caveat application got registered and summons sent on the basis of caveat application treating it to be independent proceedings which was contrary to S.148-A. Held that, decree obtained in such way was fraudulent decree."
38
37. Sri K.Varadarajan, the learned counsel for the defendant No.6 submits that the compromise decrees facilitated between the defendant Nos.1 to 3 and the defendant No.5 are collusive. He submits that the sale agreements between the defendant Nos.1 to 3 and the defendant No.5 are created for the purpose of this case. He submits that the said sale agreements have not culminated in the sale deeds.
38. He submits that the defendant No.5 has not spoken of the Will (Ex.D45) in the pleadings. It is not produced before any authority, nobody has sought the change of khatha based on the Will. The Will is not acted upon at all. He submits that assuming without admitting that the Will executed by Papaiah in favour of Dodda Channappa is authentic, then also the defendant Nos. 1 to 3 and the defendant No.5 become answerable on one issue. The settlement deed (Ex.D44) speaks of partitioning only in respect of one item, though by the said Will, five items are bequeathed. It is not known why the settlement amongst the claimants should be restricted to only one item.
39. Sri Varadarajan submits that the sale agreement (Ex.D18) is executed by Dodda Channappa, his sons 39 Muniswamappa and C.Gopala, Dodda Channappa's brother Chikka Channappa and Chikka Channappa's son Krishnappa, Dodda Channappa's another brother Govindappa and his sons Chennakrishna and Ravi. He submits that Govindappa has acted as the minority guardian on behalf of his minor sons.
40. The learned counsel submits that pursuant to the sale agreement at Ex.D18, all the title deeds are made over to the defendant No.6. They are the mortgage deeds (Exs.D21 and D22). He brings to my notice that the payment to the vendors, as per the sale agreement at Ex.D18, is made by the defendant No.6 by cheques, etc. He submits that the sale agreement mentions of the numbers of the cheques, demand drafts besides the cash-payments made.
41. He submits that the non-agricultural conversion orders are in the name of Dodda Channappa, because he continued to be the owner. The defendant No.6 has acted as the agent of Dodda Channappa in his capacity as the general power of attorney holder. He submits that the defendant No.6 has only been attending to all the queries raised by the revenue authorities at the time of the processing the application for the 40 conversion of the land from agricultural to the non-agricultural land. He submits that even the conversion fee and the development charges are paid by the defendant No.6. He submits that the defendant No.5 has not produced any documents to show that he has taken any part in the conversion process.
42. He submits that the endorsement (Ex.D17) issued by the Mahadevapura City Municipal Council is sought to be misinterpreted by the defendant No.5. The endorsement is issued by the office of the City Municipal Council of Mahadevapura. But the approval for the layout is given by the Hoodi Grama Panchayat, which subsequently came to be merged in Mahadevapura City Municipal Council. He submits that the khathas were first issued by the Hoodi Grama Panchayat and later by the Mahadevapura City Municipal Council. The properties were assessed for tax by the said local bodies. He submits that the concerned local body has even been sanctioning the plan for the construction of the building on the suit schedule properties.
43. The learned counsel submits that the conversion of the lands took place in 1992. However, in the sale agreements 41 executed between defendant Nos.1 to 3 on one side and the defendant No.5/his father on the other side, there is reference to the conversion in the agreements executed between 1985 and 1992. These agreements are therefore created. They refer to something which was not in existence at the time of their coming into existence. He submits that the sale agreement (Ex.D1), dated 1.4.1985 does not even mention the agreed sale consideration. It only refers to the receipt of the advance amount of `10,001/. He further brings to my notice that the sale agreement at Ex.D2 makes no reference to the sale agreement at Ex.D1. The sale agreement, dated 9.5.1986 (Ex.D2) also refers to the non-agricultural conversion of the lands, which development took place in 1992. He submits that the alleged sale agreements were being renewed only to save the limitation for approaching the Court.
44. The learned counsel submits that no time is prescribed for completing the transaction as per the continued sale agreement dated 10.4.1989 (Ex.D5). He brings to my notice the contradiction between clause 1(b) and clause (2) of the said sale agreement. The last para of clause 1(b) and clause 2 read as follows:
42
"1(b) ªÉÄ®ÌAqÀ ¥ÀÆgÁ PÀæAiÀÄzÀ ªÉƧ®UÀÄ ¥ÁªÀw ªÀiÁqÀ®Ä AiÀiÁªÀÅzÉà PÁ®zÀ ¤UÀ¢Aü iÀiÁVgÀĪÀÅ¢®è.
(2) PÀæAiÀÄzÀ ªÀåªÀºÁgÀªÀÅ F¯ÁUÁAiÀÄÄÛ ªÀÄÆgÀÄ wAUÀ¼À M¼ÀUÁV ªÀÄÄPÁÛAiÀÄUÉƼÀîvÀPÀÌzÀÄ.Ý "
45. The learned counsel takes serious exception to the signing of these sale agreements, dated 11.01.1995 by C.Gopal, the defendant No.1. He submits that the first defendant C.Gopal has nothing to do with the sale agreement executed in favour of the fifth defendant by his father. This document is indicative of the enormity of the fraud committed by the defendant No.5, so submits the learned counsel.
46. The learned counsel submits that even the shown sale consideration has not remained the same. In the earlier document it is shown as `2.00 lakhs. In the document at Ex.D10 it is shown as `4.00 lakhs. In clause 5 of the said document, it is shown that the vendors would deliver the possession to the fifth defendant only on the date of the sale.
47. The learned counsel submits that the sale agreement, dated 23.6.2003 (Ex.D13) is full of contradictions. Clause (c) speaks of obtaining certain documents, whereas clause (b) 43 states that the vendor has delivered the original documents to the purchaser. He submits that for the first time, the cheque payments are mentioned in the sale agreement (Ex.D15) executed in 2006.
48. The learned counsel submits that the defendant No.5 has presented the sale deed for registration, as if the land measuring 1 acre 31 guntas is an agricultural land. The stamp value and registration fee are also calculated, as if it is an agricultural land. When the property is converted in 1992 itself, the question of valuing it as an agricultural land amounts to gross undervaluation. He submits that the defendant No.5 has not got the sale deed registered and released even when 7 years have elapsed. He submits that the defendant No.5 has not examined any witness in support of his case.
49. Sri R.Vijayakumar, the learned counsel for the defendant Nos.1 to 4 read out the affidavit evidence of PW1. Para 5 of the same read out by him is as follows:
"I submit that Sri Dodda Channappa and his sons sold the entire land to Sri Sreeramulu, the 6th defendant herein, by way of sale agreement and registered general power of attorney on 09.12.1987. The said GPA was 44 executed in favour of the 6th defendant by Sri Dodda Channappa - 1st defendant C.Gopal, 4th defendant D.Muniswamappa."
50. He submits that the transfer of property has to be only by a mode known to the statute, namely, the Transfer of Property Act. The general power of attorney and the sale agreements do not have the effect of transferring the immovable property from one person to another.
51. He submits that no issue pertaining to the title was formulated by the Trial Court. As the erstwhile owners of the land in question have conveyed the title to the defendant No.5, no relief can be given to the plaintiffs, who claim under the defendant No.6. He relied on the judgment of the Apex Court in the case of ANATHULLA SUDHAKAR vs. P.BUCHI REDDY (DEAD) BY LRs. AND OTHERS reported (2008) 4 SCC 594. Para 13 and last part of para 25 of the said judgment, relied upon by him, read as follows:
"13. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.45
13.1. Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.
13.2. Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.
13.3. Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from the defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of the plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction."
.................
25. ........................ Whether Rukminibai's evidence and other plaintiffs' witness should be believed or whether evidence of Damodar Rao should be believed on the question of title, can be examined only when there are 46 necessary pleadings and an issue regarding title. Further, where title of the plaintiffs is disputed and claim for possession is purely based on title, and the plaintiffs have to rely on various principles of law relating to ostensible ownership and Section 41 of the TP Act, validity of an oral gift by way of "pasupu kumkumam" under Hindu Law, estoppel and acquiescence, to put for the a case of title, such complicated questions could properly be examined only in a title suit, that is, a suit for declaration and consequential reliefs, and not in a suit for an injunction simpliciter."
52. He submits that as the appeal is only an extension of the suit proceedings, the judgment and decree may please be set aside and the matter be remanded to the Trial Court for fresh consideration in accordance with law. Such a course would enable the defendant Nos.1 to 3 to have their written statement brought on record. He submits that the perusal of the order sheet in the suit reveals that the request of the defendant Nos.1 to 3 for reduction of the cost from `600/- to `200/- was disposed of reserving the liberty to the defendant Nos.1 to 3 to file an application. Thus, as the matter of the cost fixation has not attained the finality, he would request that the defendant Nos.1 to 3 be permitted to pay the cost and have their written statement taken on record.
47
53. In the course of rejoinder, the learned counsel for the appellant Sri Sridhar read out the relevant portions of the cross- examination of DW1 to advance the submission that the possession of the lands in question was made over to the appellant's father under Exs.D1 to D6. As the appellant's father and the appellant were ousted from it, the appellant filed O.S.No.7425/2006 and O.S.No.8296/2006. In the suit proceedings, compromise was arrived at and the possession of the lands in question was delivered to the appellant's side.
54. Sri Sridhar submits that the first defendant Gopal's signature is affixed on the sale agreement at Ex.D7 only by way of confirmation that he has executed the earlier sale agreement. He submits that the appellant (DW1) has deposed that a number of agreements, etc. had to be executed as the first defendant Gopal went on raising the market value of the lands in question.
55. He submits that no evidentiary value can be attached to Ex.D37, as it is only a notarized copy. As the original or certified copy is not produced, no reliance can be placed on the said document.
48
56. The learned counsel for the plaintiff Sri Savanur submits that the endorsement, dated 22.12.2006 (Ex.D17) issued by the Office of the C.M.C., Mahadevapura is being misinterpreted by the defendant No.5. He submits that the approval for the layout plan was given by the Hoodi Grama Panchayat, which later came to be merged in the C.M.C., Mahadevapura.
57. Sri N.Savanur, who is also the learned counsel for the appellants in R.F.A.No.569/2011 submits that on the same set of facts, the suits are decreed in as many as 13 cases. He submits that O.S.No.7887/2007 was assigned to CCH - 16 and O.S.Nos.9554/2006, 10199/2006, 11245/2006, 4436/2006, 1042/2007, 10197/2006, 10195/2006, 10196/2006, 9556/2006, 10194/2006 and 10198/2006 were assigned to CCH-6. He submits that the respondent - defendants have not entered the witness box and have not produced any documents. He submits that they are content with the cross-examination of PW1.
58. The learned counsel submits that none of the reasons assigned by the Trial Court for dismissing the suit are tenable. 49 He submits that the Trial Court has assigned the following reasons for the dismissal of the suit:
(a) When the law itself states that the judgment and decree binds only those who are parties to the suit in which they are passed, a non-party i.e. a third party is not required to come to the court seeking the relief of declaration that those judgments and decrees are not binding on him.
(b) The certified copy of the decree in O.S.No.7425/2006 is not produced by the appellant
- plaintiffs.
(c) Based on the khatha number, the immovable property cannot be demarcated. It is all the more so when the layout plan is not produced.
59. He submits that the owner of the property is bound to approach the civil court when somebody puts up the board that the property belongs to him based on the judgment and decree in a suit. He submits that any prudent, bonafide purchaser has to resort to the initiation of the proceedings seeking the declaration that such a judgment and decree does not bind him. If he does not do so, his title would be in peril. 50
60. The learned counsel submits that the certified copy of the decree in O.S.No.7425/2006 and the certified copy of the order of approval for the formation of the layout could not be produced as the appellants' counsel in the Trial Court was having several serious ailments and as he was aged 75 years. He submits that the certified copy of the decree in O.S.No.7425/2006 and the certified copy of the approval order for the formation of the layout and the three other documents - certified copy of the order sheet in O.S.No.7425/2006, certified copy of the plaint in O.S.No.7425/2006 and certified copy of the compromise petition in O.S.No.7425/2006 are produced along with I.A.No.1/2014. He submits that their non-production before the Trial Court was on account of the senior advocate falling ill and the junior advocate missing track of the documentary evidence. He read out para 7 of the affidavit filed in support of I.A.No.1/2014 which reads as follows:
"7. I state that, soon after I have applied all the documents produced by the plaintiff and defendants along with judgment and decrees in those above stated suits disposed off suits for production of the same in my case. Inspite of my efforts and due diligence I could get those copies from the court below in time, because of file was kept pending in the Decree Branch long time for drawing 51 decrees. Meanwhile my counsel on records Sri K.Sathyanarayana Rao, aged about 75 years was fell serious ill and bed ridden for some time due to chronic back ache and other related ailments. After his recovery, I requested my counsel to seek the permission of the Court to produce and mark those additional documents listed in the list annex to this instant application. But the court below not allowed and passed the impugned judgment and decree which is under challenge in this appeal."
61. He would pray for the allowing of the I.A.No.1/2014 for the production of the additional documents and for the allowing of this appeal by setting aside the judgment and decree and by remanding the matter to the Trial Court for fresh disposal.
62. Sri A.G.Sridhar, the learned counsel for the first respondent - defendant submits that it cannot be accepted that the appellants had any difficulty in producing the documents, which are now sought to be produced with I.A.No.1/2014. He submits that the suit was kept pending for four longs years and that the documents in question are all court documents.
63. Sri Sridhar submits that site Nos.65 and 66 do not exist. He asserts that even if they exist, they are not in the land at Sy.No.50/2. He brings to my notice the striking off a portion 52 of the sale deed at Ex.P2. He submits that the survey number appears to have been first mentioned, but subsequently it is struck off.
64. The learned counsel submits that O.S.No.1995/2009 is filed by the appellants seeking the ejectment of Sri P.Chandrashekhar Rao from the premises in question. The said suit is decreed. He submits that the appellants have resorted to the execution of the decree passed in O.S.No.1995/2009 two months after the dismissal of their suit (O.S.No.7887/2007). He submits that as the appellants have obtained the ejectment decree even when they are not the owners, the defendant No.1 has filed the obstructing application in the execution proceedings.
65. The learned counsel submits that PW1 has given a non-committal response in the course of his cross-examination. He does not even know who is presently residing in the premises in question. He submits that Exs.P6 to P10 show that the appellants have been paying the property tax only in respect of the vacant site. If there is no building, the question of anybody residing there may not arise. He has also brought to my notice 53 Ex.P29, the plaint in the unnumbered suit for ejectment against Chandrashekhar. It is produced in O.S.No.7887/2007 ten months after the filing of the ejectment suit.
66. Just because some suits are decreed, it does not mean that every suit has to be decreed, so submits the learned counsel. He submits that the outcome of the suit depends upon the merits of each cases. He relies on the Apex Court's judgment in the case of UNION OF INDIA vs. IBRAHIM UDDIN reported in 2013 (4) KCCR SN 308 (SC), wherein it is held that the failure of a party to prove its defence does not amount to admission nor does it reverse or discharge the burden of proof of plaintiff. He sought to draw support from the said authority to advance the contention that just because the defendants have not adduced the evidence, the appellant - plaintiffs' suit cannot be decreed.
67. In the course of rejoinder, Sri Savanur submits that there is no confusion regarding the identity of the suit schedule property. He brings to my notice, the averments in para 4 of the written statement filed by the first respondent - defendants. They read as follows:
54
"4. The averments made in para-5 of the plaint that, the plaintiffs were surprised to notice two suit Nos. viz., O.S.No.7425/2006 and O.S.No.8296/2006 on the front wall of the schedule property on 12.09.2007 is false. However it is true that the suit schedule property is also covered under the proceedings stated supra.................."
68. Sri Savanur denies that the building is raised without obtaining the building licence. He submits that Ex.P21 is not a sanctioned plan. He joins the issue with Sri Sridhar on who resides or who does not reside in the suit schedule property. He submits that when PW1 has stated that he does not know who is residing in the suit schedule property, he only meant whether Chandra Shekhar Rao, the defendant is residing or his labourers are staying there.
69. The submissions of the learned counsel have received my thoughtful consideration. I have perused the L.C.R.s. The first question that falls for my consideration is whether the judgments and decrees passed in O.S.No.7425/2006 and O.S.No.8296/2006 are liable to be set aside. The 91 persons, including the present plaintiffs, are the purchasers of the sites carved out of the land at Survey No.50/2 of Hoodi Village. The rights claimed by the defendant No.5 in the said suits could not 55 have been decided in the absence of the present plaintiffs and other purchasers. The said suits suffered from the non-joinder of necessary parties.
70. O.S.No.7425/2006 and O.S.No.8296/2006 filed by the defendant No.5 ended up in the compromise within no time of their filing. In O.S.No.8296/2006 even the suit summons were not served on the defendants. The plaintiffs' side in O.S.No.8296/2006 advanced the case and obtained the compromise decree. The defendant No.5 fails to prove the genuineness of the compromise decrees. The defendant Nos.1 to 3 have shown post-haste in arriving at the compromise in the suits filed by the defendant No.5. The collusion between the defendant Nos.1 to 3 and defendant No.5, as alleged by the plaintiffs and the defendant No.6 cannot be said to be without any basis.
71 . Further, the defendant Nos.1 to 4 did not bring to the notice of the Court, which recorded the compromise in O.S.No.7425/2006 and O.S.No.8296/2006 of the transactions between them on one side and the defendant No.6 and his father on the other side. The non-disclosure of the material information 56 and the non-joinder of necessary parties render the hurriedly obtained compromise decrees unsustainable.
72. The second question that falls for my consideration is whether the defendant No.5 is in a position to establish that he got the right in the property in question from the parties, who claim under Dodda Channnappa. The answer is emphatic 'no', because the defendant Nos.1 to 4 have not supported the case of the defendant No.5. The defendant Nos.1 to 3 were permitted to file the written statement by paying the cost, but they did not choose to pay the cost. The resultant position is that their written statement is not accepted. The defendant Nos.1 to 3 have also not filed any writ petition aggrieved by the order of the Trial Court refusing to take their written statement on record on account of their non-payment of the cost. The defendant Nos.1 to 3 have not cross-examined the plaintiffs. Further, they (defendant Nos.1 to 3) have not entered the witness box. The defendant No.4 has remained exparte.
73. It is also to be noted that the defendant Nos.1 to 4 have neither filed the appeal nor the cross-objections aggrieved by the judgments and decrees in question. The claim of the 57 defendant No.5 has not received any support from the defendant Nos.1 to 4 under whom the defendant No.5 claims. The fifth defendant's submission that the suit ought to have been rejected, as the plaintiff has not sought any relief of declaration that he is the owner of the suit schedule property is absolutely untenable. The plaintiff's claim is based on the registered sale deed. If the fifth defendant wants to dislodge the plaintiff's title, the fifth defendant ought to have challenged the sale deed executed in favour of the plaintiff. The defendant No.5 has no plausible explanation for not challenging the sale deeds in favour of the plaintiffs. The defendant Nos.1 to 4 have also not raised any challenge to the sale deeds executed in favour of the plaintiffs. The defendant No.5 has also not filed any counter- claim in the suits filed by the plaintiffs. The executants of the documents in favour of the defendant No.6 and his father have themselves not questioned the said documents. From their side, the plaintiffs have produced the sale deeds executed in their favour. They have got the khatha mutated in their favour and have been paying the property tax.
58
74. The third question that falls for my consideration is whether the defendant No.5 can draw any support from the two sale agreements, both dated 9.5.1986 (Ex.D2 and Ex.D3), further sale agreements, dated 10.4.1989 (Ex.D5) and dated 30.3.1992 (Ex.D6). To answer this question, the reliability and genuineness of the said documents have to be examined. All these 4 documents refer to the death of Dodda Channnappa. What is baffling is Dodda Channnappa was very much alive when these documents came into existence. These documents were created between 1986 and 1992 whereas Dodda Channnappa died long thereafter, that is on 8.2.2003, as is evident from the death certificate (Ex.D16). No credence can be given to such documents.
75. The fourth question falling for my consideration is whether the plaintiffs have made out a case for decreeing the suit? The materials placed on record clearly show that the defendant No.6 had acquired the title and right to deal with the properties. The sale agreement, dated 5.8.1987 (Ex.D18) executed by Dodda Channappa and others in favour of the defendant No.6 states that certain documents are delivered to the defendant No.6. The payment of sale consideration by the 59 defendant No.6 pursuant to the said sale agreement is by way of cheques and demand drafts. Ex.D19 and Ex.D20 contain the payment particulars. Thereafter, the defendant No.6 got the lands converted for non-agricultural purpose, obtained the approval for the layout and sold the sites to 91 persons. One amongst them is Sri N.Manickyam. He purchased the schedule property from the defendant No.6 by a registered sale deed, dated 3(4).6.1993. The plaintiff has purchased the suit schedule property from N.Manickyam by a registered sale deed, dated 23.10.2001 (Ex.P1). The documents produced by the plaintiff show that he has the legal right over the suit schedule property.
76. Nothing turns on Ex.D17 in favour of the defendant No.5. It is an endorsement issued by the Office of the City Municipal Council, Mahadevapura to the effect that it has not accorded the approval to the formation of the layout in the land at Survey No.50/2 of Hoodi Village. Because Hoodi Gram Panchayat is subsequently merged in Mahadevapura City Municipal Council. The approval for the layout may have been given by the predecessor of Mahadevapura City Municipal Council, namely, Hoodi Gram Panchayat.
60
77. The fifth question that falls for my consideration is whether the fifth defendant's version is consistent and worthy of acceptance? I find that the fifth defendant's version is full of loose ends. The perusal of the paragraph No.2 of the fifth defendant's written statement shows that the land measuring 3 acres 22 guntas at Survey No.50/2 fell to the share of Dodda Chanappa in the family partition, dated 18.7.1985. But the sale agreement, dated 1.4.1985 (Ex.D1) stated to have been executed by Dodda Chanappa in favour of the fifth defendant's father states that the sons of Dodda Chanappa partitioned the properties on 5.8.1984. When the partition amongst Dodda Chanappa and his brothers took place on 18.7.1985, the partition amongst Dodda Chanappa's sons could not have taken place on 5.8.1984.
78. Another discrepancy in the version of the fifth defendant is regarding the extent of the land. In paragraph No.6 of the written statement, the extent of land belonging to Dodda Chanappa and his children is shown as 3 acres 22 guntas. In the Panchayat Parikattu Patra, dated 5.8.1984 (Ex.D44), the extent is shown as 5 acres.
61
79. Admittedly, when the non-agricultural conversion order is passed only in 1992, the sale agreement, dated 9.5.1986 (Ex.D2) in favour of the fifth respondent's father states as follows in clause 3(2)J:
µÉqÀÆå®Ä d«Æ£ÀÄ ªÀåªÀ¸ÁAiÀÄzÀ GzÉÝñÀ¢AzÀ ªÀåªÀ¸ÁAiÉÄÃvÀgÀ ªÀ¸wÀ GzÉÝñÀªÁV ¸ÀA§Azs¥ À ÀlÖ C¢üPÁjUÀ½AzÀ ¨sÀÆ¥ÀjªÀvÀð£É DzÉñÀzÀ¥Àæw ¥Àqz É ÀÄPÉƼÀÄîªÀÅzÀÄ.
80. When the land was not converted in 1996, the question of getting a copy of the conversion order would not arise at all in a document executed in 1986. Such recitals in the documents, relied upon by the defendant No.5, only lend support to the submissions of the plaintiffs that the documents are not genuine.
81. On the ground that the minors' properties are alienated without taking the prior permission of the Court, this Court's interference is not warranted, because the minors, on attaining the age of majority, ought to have challenged the alienations made in favour of the defendant No.6. In the absence of such a challenge, the alienations cannot be set at naught. 62
82. No independent witness is examined on behalf of the defendant No.5.
83. The judgments relied upon by the appellant's side do not come to its rescue in any way because the facts of the reported cases and of the case on hand are entirely different.
84. For all the aforesaid reasons, I dismiss R.F.A.Nos.1182/2010, 1162/2010, 1158/2010, 1163/2010, 1160/2010, 1159/2010, 1156/2010, 1157/2010, 1183/2010, 1155/2010 and 1161/2010. As the main matter itself is disposed off, Misc.Civil Nos.9521, 9529, 9527, 9528, 9523, 9525, 9524, 9777, 9526 and 9522 of 2010 all for stay are dismissed as having become unnecessary.
85. I am nextly left with R.F.A.No.569/2011. My perusal of the Trial Court's judgment in O.S.No.7887/2007 reveals that the Trial Court has held that the judgments and decrees passed in O.S.No.7425/2006 and O.S.No.8296/2006 are not binding on the plaintiffs, as they are not parties to the said suit. This reasoning is not sound. If the plaintiffs and the defendants in O.S.No.7425/2006 and O.S.No.8296/2006 have settled the matter in respect of a property or portion of a property belonging to a third party, the recourse open to the third party is 63 to seek the relief of declaration that the judgments and decrees in the said suits are not binding upon him. If the property is alienated by somebody, who has no saleable right in the property, a party, who claims to be a true owner of the property, cannot ignore the alienation deeds. If a stranger or a person, who has lost the title to the property, sells it to another person, the true owner is bound to question the same by filing a suit for declaration.
86. In the instant case, there is a clear admission in the first respondent's written statement that the suit schedule property of O.S.No.7887/2007 forms part of the suit schedule property in O.S.No.7425/2006 and O.S.No.8296/2006. The relevant portion of his written statement reads as follows:
"The averments made in para-5 of the plaint that, the plaintiffs were surprised to notice two suit Nos. viz., O.S.No.7425/2006 and O.S.No.8296/2006 on the front wall of the schedule property on 12.9.2007 is false. However it is true that the suit schedule property is also covered under the proceedings stated supra....."
87. In view of the clear admission of the first respondent - defendant that the suit schedule property of O.S.No.7887/2007 is also covered under O.S.No.7425/2006 and O.S.No.8296/2006, it cannot be said that the plaintiff in O.S.No.7887/2007 has no 64 grievance and no cause of action. The compromise decree if obtained through misrepresentation or by practicing fraud or by collusion to defraud the legitimate rights of the third parties, can be set aside. Section 31 of the Specific Relief Act, 193 provides for challenging such a decree, if it is causing serious injury to a party.
88. The second reason assigned by the Trial Court for the dismissal of the suit is that the identity of the suit schedule property itself is in dispute. The Trial Court has entertained a serious doubt as the Survey No.50/2 is mentioned in the sale deed at Ex.P2 first, but is subsequently struck off. But then, the Trial Court ought to have framed an issue on whether the plaintiffs establish that the suit schedule property is carved out of the land at Survey No.50/2.
89. Yet another reason for dismissing the suit is that the certified copy of the judgment and decree in O.S.No.7425/2006 and the order approving the layout plan are not produced by the plaintiffs. The plaintiffs ought to have produced the same in the suit proceedings. If those documents were only to be produced by the plaintiffs, the outcome of the suit may have been different.
65
90. But in the appeal proceedings, the appellants have filed I.A.No.1/2014 invoking Order 41 Rule 27 seeking leave of the Court to produce the certified copies of the following documents:
(i) Order sheet in O.S.No.7425/2006
(ii) Plaint in O.S.No.7425/2006
(iii) Compromise petition in O.S.No.7425/2006
(iv) Decree in O.S.No.7425/2006
(v) The order of Hoodi Village Panchayat approving the layout plan for the land at Survey No.50/2.
91. The perusal of the affidavit filed in support of I.A.No.1/2014 discloses that despite exercise of due diligence, the said documents could not be produced in the suit proceedings. The non-production was on account of the serious ailments and the advancing years of the plaintiffs' counsel. As the cause for their non-production in the suit proceedings is acceptable and as the documents are required for effectually adjudicating the lis between the parties, I allow I.A.No.1/2014. The approval order for the layout plan could be of some assistance in throwing the light on the location and identity of the suit schedule property. Needless to observe that the 66 defendants would also have the opportunity and liberty of disputing the genuineness and relevance of the additional documents in question.
92. The reason for the Trial Court turning down the request for the plaintiffs' prayer for injunction is that in the instant case, the cause of action against the alleged interference by the defendants can accrue only to the tenants. Such a view is also not tenable. If a third party disturbs the possession of the tenant representing that he is the owner, then the landlord, who also claims to be the owner, is bound to file a suit. As the suit cannot be dismissed on the ground that there is no interference to the owner and that the interference is only to the tenant. However, if the landlord fails to show that there is interference, the injunctive relief prayed for can always be refused. But in the instant case, refusing to grant the relief of injunction on the ground that the plaintiffs are not in possession and that the plaintiffs' tenant has not filed the suit cannot be justified.
93. In the instant case, the particulars of the alleged interference are not furnished in the plaint. The plaintiffs have not even stated who has put them in possession of the schedule 67 property. It is not known when the building is raised on the schedule sites. They are not spoken of in the course of evidence. The plaintiffs have not examined any independent witnesses. The most competent witness to speak on the interference would be the actual occupant of the suit schedule property. But unfortunately, he has not been examined by the plaintiffs, as noticed by the Trial Court. However, this aspect of the matter may not preclude the plaintiffs from seeking the injunctive relief, as the matter is being remanded to give the opportunity to the parties to adduce fresh/additional evidence.
94. The Trial Court has dismissed the suit, as the plaintiffs have not sought any relief regarding the declaration of title. In doing so it refers to the Hon'ble Supreme Court's decision in the case of ANATHLA SUDHAKAR v. P.BUCHIREDDY (DEAD) BY LRS AND OTHERS reported in AIR 2008 SC 2033. I notice with concern that the facts of the said case and of the reported case are entirely different. The present suit is not for the relief of injunction simplicitor. It is also for the relief of declaration that the judgments and decrees obtained by the first defendant in O.S.No.7425/2006 and O.S.No.8296/2006 are not binding upon the present plaintiffs, as they were not parties to the said suit. 68 The appellant - plaintiffs are the recorded owners as per the registered sale deed, dated 15.3.1996. It is worthwhile to notice that the defendants have not raised any challenge to the said sale deed nor have they filed any counter-claim in the suit proceedings. They have also not entered the witness box.
95. The next question that arises for my consideration is whether the suit suffers from the non-joinder of necessary parties. It is trite that the purchaser's rights cannot be better or higher than those of his vendor. It is therefore necessary that the plaintiffs must arraign their vendors, from whom they have purchased the properties, as the defendants to the suit. The same is required for the full and effectual adjudication of the issues falling for consideration.
96. In the result, I allow R.F.A.No.569/2011 by passing the following order:
(i) The judgment and decree, dated 3.2.2011 passed by the Court of the XVII Additional Civil City Judge (CCH-16), Bangalore City in O.S.No.7887/2007 is set aside. The matter is remanded to the Trial Court for fresh enquiry.69
(ii) I.A.No.1/2014 for production of additional documents is allowed.
(iii) The appellant - plaintiffs are directed to implead the person/s from whom they have purchased the suit schedule sites.
(iv) The Trial Court shall frame an additional issue on whether the plaintiffs establish that the suit schedule property is carved out of the land at Survey No.50/2 of Hoodi Village?
(v) Liberty is also reserved to the parties to seek the amendment of their pleadings. It is for the Trial Court to consider and dispose of the I.A.s for the amendment, if any filed, in accordance with law.
(vi) Liberty is reserved to both the sides to lead fresh/additional evidence.
(vii) Liberty is also reserved to both the parties to make the necessary application for the appointment of the Court Commissioner for holding the spot-inspection 70 calling for the Surveyor's report, etc. at appropriate stage in the remanded proceedings.
(viii) The Trial Court shall dispose of the remanded matter independently of and without being influenced by the Trial Court's judgments and decrees, dated 24.5.2010 in O.S.Nos.9554/2006, 10199/2006, 11245/2006, 4436/2006, 1042/2007, 10197/2006, 10195/2006, 10196/2006, 9556/2006, 10194/2006 and 10198/2006 and the judgment of this Court upholding the same in R.F.A.Nos.1182/2010, 1162/2010, 1158/2010, 1163/2010, 1160/2010, 1159/2010, 1156/2010, 1157/2010, 1183/2010, 1155/2010 and 1161/2010.
(ix) The parties shall appear before the Trial Court on 29.4.2014 without waiting for any notice from the Trial Court. The parties are directed to co-operate with the Trial Court in the speedy disposal of the remanded matter. The Trial Court shall dispose of the remanded matter as expeditiously as possible 71 and in any case within an outer limit of one year from 29.4.2014.
(x) Needless to observe that all the contentions are left open.
(xi) Office is directed to return the certified copies of the five documents produced with I.A.No.1/2014 to the appellants' side after taking their xerox copies for the record purpose. Further, the office is directed to return the L.C.R.s to the Trial Court.
97. No order as to costs.
Sd/-
JUDGE MD/CM