Karnataka High Court
Mr M N Prabhakar Reddy vs Mr. M N Somashekar on 26 September, 2024
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NC: 2024:KHC:40092
RSA No. 1064 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO.1064 OF 2020 (DEC/INJ)
BETWEEN
1. MR. M.N. PRABHAKAR REDDY
@ M.N. PRABHAKAR
S/O LATE M.N.NARAYANA SWAMY
AGED ABOUT 62 YEARS
2. MRS. N. PRAMELA
W/O M.N. PRABHAKAR
@ M.N. PRABHAKAR
AGED ABOUT 56 YEARS
BOTH THE APPELLANTS
R/AT NO.71/49, I FLOOR,
7TH CROSS, WILSON GARDEN
BENGALURU - 560 027.
...APPELLANTS
Digitally signed by
SHARMA ANAND
CHAYA (BY SRI. ANANT MANDGI SENIOR COUNSEL FOR
Location: High
Court of Karnataka SRI. AMIT A. MANDGI, ADVOCATE)
AND:
1. MR. M.N. SOMASHEKAR
@ M.N. SOMASHEKAR REDDY
S/O LATE M.L. NARAYANA SWAMY
AGED ABOUT 57 YEARS
R/AT NO.71/49, I FLOOR
7TH CROSS, WILSON GARDEN
BENGALURU - 560 027.
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RSA No. 1064 of 2020
2. MR. C. MURALI KRISHNA SHASTRY
S/O NARASIMHA SHASTRY
AGED ABOUT 47 YEARS
R/AT NO.839/A, 100 FT. ROAD
INDIRANAGAR I STAGE
BENGALURU - 560 038.
3. MR. G.A. MUNIRAJU
S/O LATE ANNAYAPPA
AGED ABOUT 47 YEARS
R/AT DOOR NO.4 BC, 409
SRI VARI NILAYA
4TH 'A' MAIN, 4TH 'B' CROSS
KASTHURINAGAR, BDA LAYOUT
RAMAMURTHY NAGAR
OPP. UTTAM SAGAR HOTEL
DOORAVANINAGAR
BENGALURU - 560 016.
...RESPONDENTS
(BY SRI. R. VIJAYAKUMAR, ADVOCATE FOR R1;
SMT. RACHITHA M.B., ADVOCATE FOR R3;
V/O DATED 10.02.2023 NOTICE TO R2 IS DISPENSED WITH)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CODE OF CIVIL PROCEDURE, AGAINST THE JUDGMENT
AND DECREE DATED 31.07.2020 PASSED IN R.A. NO.34 OF
2018 ON THE FILE OF I ADDITIONAL DISTRICT AND SESSIONS
JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, ALLOWING
THE APPEAL AND SET ASIDE THE JUDGMENT AND DECREE
DATED 03.02.2018 PASSED IN O.S.NO.119 OF 2006 ON THE
FILE OF THE IV ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU
RURAL DISTRICT, BENGALURU.
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NC: 2024:KHC:40092
RSA No. 1064 of 2020
THIS REGULAR SECOND APPEAL HAVING BEEN RESERVED
FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY,
E.S. INDIRESH J., DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE E.S. INDIRESH
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE E.S.INDIRESH) This Regular Second Appeal is filed by the defendant Nos.1 and 2, challenging the judgment and decree dated 31.07.2020 passed in RA No.34 of 2018 on the file of the I Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru, (for short, hereinafter referred to as 'First Appellate Court') allowing the appeal and setting aside the judgment and decree dated 03.02.2018 passed in OS No. 119 of 2006 on the file of the IV Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru, (for short, hereinafter referred to as 'Trial Court') dismissing the suit of the plaintiff.
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2. For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the trial Court.
3. The plaint averments in brief are that, the grandfather of the plaintiff-Lakshmaiah Reddy, had three children namely, M.L. Hanumappa Reddy, M.L. Ramaiah Reddy and M.L.Narayanaswamy. It is further stated that, there was a partition in the joint family, in which, father of the plaintiff was allotted 'C' Schedule in the family partition as per the registered Partition Deed dated 30.06.1971. It is further stated that, father of the plaintiff- M.L.Narayanaswamy, had five sons namely, M.N.Nagabhushan, M.N.Prabhakar Reddy, (defendant No.1), M.N.Shashibhushan, M.N.Somashekara (plaintiff) and M.N. Anil Kumar. It is the case of the plaintiff that, the suit schedule property is a joint family property of the plaintiff and defendants and as such, the members of the joint family have entered into unregistered partition deed -5- NC: 2024:KHC:40092 RSA No. 1064 of 2020 on 06.12.1989, in which, defendant No.1 and plaintiff were given 'C' and 'D' schedule properties, respectively, and further, Item No.7 of the schedule property i.e. the land bearing Sy No.130 (New Sy No. 130/1) of Kittaganur village, measuring to an extent of 02 acres, 06 guntas, granted to the plaintiff and defendant No.1, jointly, without giving specific division to defendant No.1 and the plaintiff. As per the unregistered Partition Deed dated 06.12.1989, the properties mentioned in the above partition deed were acquired by the father of the plaintiff-M.L.Narayanaswamy. It is further stated in the plaint that, father of the plaintiff- M.L.Narayanaswamy died on 08.07.1993 and after the death of Sri. M.L.Narayanaswamy, the family members of late M.L. Narayanaswamy had entered into further partition in respect of the remaining joint family properties as per partition deed dated 01.04.1998 and in the said partition, 'C' Schedule property was allotted in favour of defendant No.1 and 'D' schedule property was allotted to plaintiff. Therefore, it is the contention of the plaintiff that, the defendant No.1 was given 'C' schedule-Item No.1 i.e. land -6- NC: 2024:KHC:40092 RSA No. 1064 of 2020 bearing Sy No. 130/1, (Old Sy No. 130) measuring to an extent of 1 acre, 03 guntas, with specific boundaries, so also the plaintiff was given 'D 'schedule-Item No.1 measuring 01 acre, 03 guntas in Sy No. 130/1, (Old Sy No.
130) of Kittaganur village with specific boundaries. Therefore, the contention of the plaintiff is that, as the schedule properties have been divided, as mentioned above, the defendant No.1 by suppressing the above two partition deeds dated 06.12.1989 and 01.04.1998, changed the revenue records into his name, and as such, deprived the legitimate share of the plaintiff. It is also pleaded in the plaint that, the defendant No.1 had executed a registered Gift Deed on 30.06.2005, in favour of his wife-defendant No.2 and therefore, the alleged act of Gift Deed executed by the defendant No.1 in favour of defendant No.2, is contrary to law and as such, the plaintiff has filed OS No. 119 of 2006 against the defendants seeking relief of declaration with consequential relief that, the Gift Deed dated 30.06.2005 said to have been executed by defendant -7- NC: 2024:KHC:40092 RSA No. 1064 of 2020 No.1 in favour of defendant No.2 is not binding on the plaintiff.
4. After service of summons, defendants entered appearance and have filed written statement denying the averments made in the plaint. Defendants have taken up a specific contention that, that the defendant No.1 is the absolute owner in continuous possession of the suit schedule property and further denied the averments made in the plaint with regard to execution of the unregistered partition deeds dated 06.12.1989 and 01.04.1998 and it is further averred in the written statement that the above mentioned two documents of partition are created by the plaintiff to knock off the suit schedule properties, illegally, and therefore, defendants contended that, the relief sought for by the plaintiff required to be rejected, hence, sought for dismissal of the suit.
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5. On the basis of the rival pleadings, the trial Court has formulated the issues for its consideration.
6. In order to establish their case, plaintiff has examined three witnesses as PW1 to PW3 and got marked 46 documents as Exs.P1 to P46. On the other hand, defendant No.1 examined himself as DW1 and got marked 09 documents as Exs.D1 to D9.
7. The trial Court, after considering the material on record, by its judgment and decree dated 03.02.2018 dismissed the suit of the plaintiff and being aggrieved by the same, the plaintiff has preferred Regular Appeal in RA No.34 of 2018 on the file of First Appellate Court. The said appeal was resisted by the respondents therein. The First Appellate Court, after re-appreciating the facts on record, by its judgment and decree dated 31.07.2020, allowed the appeal and consequently, set aside the judgment and decree passed by the trial Court in OS No.119 of 2006. -9-
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8. Being aggrieved by the judgment and decree passed by the First Appellate Court, defendants/appellants have preferred this Regular Second Appeal under Section 100 of CPC.
9. This Court vide order dated 24.09.2020 formulated the following substantial questions of law, which reads as under.
"1.Whether the First Appellate Court was justified in law in decreeing the suit relying on Exs.P1 and P2 un- registered and un-stamped partition deeds in the facts of the present case?
2. Whether there is sufficient material on record before the First Appellate Court in law to declare that the Gift Deed Ex.P10 executed by the 1st defendant in favour of 2nd defendant as null and void and not binding on the plaintiff by reversing the finding of the trial Court?"
10. I have heard Sri. Anant Mandgi, learned Senior Counsel appearing on behalf of Sri. Amit A. Mandgi, for the
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NC: 2024:KHC:40092 RSA No. 1064 of 2020 appellants; Sri. R. Vijayakumar, learned counsel appearing for the respondent No.1 and Smt. Rachita M.B. learned counsel appearing for the respondent No.3.
11. Sri. Anant Mandgi, learned Senior counsel for the appellants invited the attention of the Court to the prayer made in the plaint and contended that, the intention of the plaintiff is to get the seal of the court on the disputed partition deeds dated 06.12.1989 and 01.04.1998 and if the plaintiff is having any grievance against the defendants, relating to division of the schedule properties, the plaintiff ought to have filed a suit, seeking relief of partition and separate possession in respect of the suit schedule properties and not seeking declaratory relief in the plaint. Accordingly, he submitted that, the suit itself is not maintainable before the Trial Court and same was not properly re-appreciated by the First Appellate Court and as such, sought for interference of this court.
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12. Learned Senior Counsel for the appellants further contended that, the entire case revolves around the partition deeds produced at Exs.P1 and P2 and he invited the attention of the court to the original records. It is specifically contended by the learned Senior Counsel that, Page No.3 is missing in Ex.P1, which is an unregistered document and therefore, such inchoate document does not confer any right in favour of the parties and the said aspect has not been considered by the First Appellate Court.
13. Nextly, it is contended by the learned Senior Counsel for the appellants that, partition deed produced at Ex.P2 said to have been executed on 01.04.1998 and further, he invited the attention of the Court to the document sheets, which said to have been purchased from the Government treasury on 13.05.1998 and same would prove that the said document is false and fabricated to make unjust gain from the defendant No.1. The said aspect has been ignored by the First Appellate Court and
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NC: 2024:KHC:40092 RSA No. 1064 of 2020 accordingly, sought for interference of this Court. Referring to paragraph 38 of the judgment of the First Appellate Court and the cross examination dated 14.10.2009 of PW1, it is argued by the learned Senior Counsel that, learned Appellate Judge has ignored the basic commonsense and has not re-appreciated the document on record in a manner known to law. He further contended that, Ex.P31-Partition Deed was confronted to the defendants which is the Xerox copy of the Partition Deed and said aspect has not been considered by the First Appellate Court while passing impugned judgment and decree.
14. Sri. Anant Mandgi, learned Senior Counsel for the appellants further contended that, the defendants had taken a plea in the written statement that, defendant No.1 was in possession of the suit schedule property and thereafter, the schedule property was gifted in favour of defendant No.2 and it is also contended by the defendants that, the defendant No.2 was in continuous possession of
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NC: 2024:KHC:40092 RSA No. 1064 of 2020 the suit schedule property as per paragraphs 11 and 12 of the written statement. Despite the said contention has been raised by the defendants that, they are in possession of the suit schedule property, the plaintiff ought to have amended the prayer made in the plaint by incorporating a relief for possession in respect of the suit schedule property and the said aspect of the matter was not properly considered by the First Appellate Court and therefore, he submitted that Trial Court, after appreciating the entire material on record, answered the issues in a manner known to law based on cogent evidence and the First Appellate Court has erroneously interfered with the well reasoned impugned judgment and decree, passed by the Trial Court, which requires to be set aside in this appeal.
15. In order to buttress his arguments, learned Senior Counsel appearing for the appellants has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Vasantha (dead) through legal
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NC: 2024:KHC:40092 RSA No. 1064 of 2020 representative vs. Rajalakshmi Alias Rajam (dead) through legal representatives reported in (2024) 5 SCC 282; in the case of Anathula Sudhakar vs. P. Buchi Reddy (dead) by Legal representatives and others reported in AIR 2008 SC 2033 and in the case of Aralappa vs. Sri. Jagannath and others reported in ILR 2007 KAR 339. Referring to aforementioned dictum of the Hon'ble Supreme Court and this Court, it is contended by the learned Senior Counsel that, the suit for declaration itself is not maintainable, as there is no partition between the parties to the suit and that apart, the plaintiff himself is not in possession of the suit schedule property and therefore, learned Senior Counsel categorically contended that, perusal of the judgment of the First Appellate Court makes it clear that, the learned Judge has prejudiced in re- appreciating the material on record. Accordingly, sought for setting aside the judgment and decree passed by the First Appellate Court.
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16. Nextly, it is contended by the learned Senior Counsel, Sri. Anant Mandgi, by referring to Article 113 of the Limitation Act, that, the right to sue accrues to the plaintiff, seeking declaration is within three years from the execution of the document, however, in the present case, even if it is assumed that, the said partition has been effected on 06.12.1989 and 01.04.1998, suit ought to have been filed within three years from the execution of the aforementioned deeds and therefore, the suit itself is liable to be dismissed on the ground of limitation. In this regard, he places reliance on the judgment of the Hon'ble Supreme Court in the case of Shakti Bhog Food Industries Ltd vs. Central Bank of India and Another reported in 2020 SCC Online SC 482 and accordingly, sought for setting aside the impugned judgment and decree passed by the First Appellate Court.
17. Per contra, Sri R. Vijayakumar, learned counsel appearing for the respondent No.1 contended that, both the
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NC: 2024:KHC:40092 RSA No. 1064 of 2020 courts below concurrently held that, the partition deeds dated 06.12.1989 and 01.04.1998 has been proved by the plaintiff and further the parties to the suit have acted upon in terms of the aforementioned partition deeds and therefore, no interference is called for in this second appeal relating to finding of fact. It is vehemently contended by Sri R. Vijayakumar, learned Counsel appearing for the respondent No.1, by referring to Ex.P34 and Ex.P41- Confirmation Deeds executed by the parties in which the defendant No.1 is a signatory to the said documents and in those documents reference has been made to the aforementioned Partition Deeds and therefore, it is contended by the learned counsel that, the defendant No.1 is estopped from stating that, the aforementioned documents are sham and are created to knock off the property by the plaintiff and in this regard, he refers to the judgment of the Hon'ble Supreme Court in the case of B.L.Sreedhar and others vs. K.M.Munireddy (dead) and others reported in (2003) 2 SCC 355 and contended that, the conduct of defendant No.1 has to be looked into,
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NC: 2024:KHC:40092 RSA No. 1064 of 2020 which per-se establishes that, the defendant No.1 has committed fraud against the plaintiff and therefore, sought for confirmation of the judgment and decree passed by the First Appellate Court. It is also contended by Sri. R. Vijayakumar, learned counsel that, as the defendant No.1 has not only committed fraud upon the plaintiff, but also committed fraud on the competent authority by making changes in the mutation entries, which is unsustainable under law. To support his arguments, he places reliance on the judgment of the Hon'ble Supreme Court in the case of Meghmala and Others vs. G.Narasimha Reddy reported in (2010) 8 SCC 383. It is further contended by Sri. R.Vijayakumar, learned counsel appearing for the respondent/plaintiff that, though Ex.P1 and Ex.P2 are unregistered documents, however, the said partition deeds are nothing but a family settlement and does not require compulsory registration. In this regard, he places reliance on the judgment in the case of Korukonda Chalapathi Rao vs. Korukonda Annapuran Sampath Kumar reported in 2021 (4) KCCR 3153 (SC).
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18. Nextly, it is contended by the learned counsel appearing for the respondent No.1 by referring to paragraphs 4 to 8 of the written statement that, the intention of the defendant No.1 is to knock off the entire extent of 2 acres, 06 guntas in Sy No.130/1 reflected as 'C' and 'D' schedule properties despite the plaintiff is having half share in the said property and therefore, he contended that, the First Appellate Court after re-appreciating the entire material on record as required under Order XLI Rule 31 of CPC, set aside the judgment and decree passed by the Trial Court, which does not call for interference in this appeal.
19. In the light of the submission made by the learned counsel appearing for the parties, I have carefully examined the finding recorded by both the courts below, which is undoubtedly the divergent opinion expressed by the courts below. In order to understand the relationship
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NC: 2024:KHC:40092 RSA No. 1064 of 2020 between the parties, the Genealogical Tree of the parties is produced as under:
®PÀëöäAiÀÄå gÉrØ (¥ÀªÀw) ªÀÄPÀ̼ÀÄ JA.J¯ï. ºÀ£ÀĪÀÄ¥Àà gÉrØ JA.J¯ï. gÁªÀÄAiÀÄå gÉrØ JA.J¯ï. £ÁgÁAiÀÄt¸Áé«Ä (¥ÀªÀw)ºÉAqÀw ºÀ£ÀĪÀÄPÀÌ (¥ÀªÀw) JA.J£ï. JA.J£ï. JA.J£ï. JA.J£ï. JA.J£ï. £ÁUÀ¨sÀƵÀt ¥Àæ¨sÁPÀgï ¸ÉÆêÀıÉÃRgï ±À²¨sÀƵÀt C¤¯ï PÀĪÀiÁgï
20. Perusal of Genealogical Tree shows that, the original propositus-Lakshmaiah Reddy had three sons namely, M.L.Hanumappa Reddy, M.L. Ramaiah Reddy and M.L. Narayanaswamy (father of plaintiff and defendant No.1). There was partition in the joint family of children of Lakshmaiah Reddy as per Partition Deed dated 30.06.1971 and 'C' schedule property in the said partition deed was
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NC: 2024:KHC:40092 RSA No. 1064 of 2020 allotted in favour of M.L.Narayanaswamy (father of plaintiff). The suit schedule property is the subject matter in the said partition deed and therefore, the suit schedule property is the ancestral property of plaintiff and defendant No.1. It is the case of the plaintiff that, there was a partition in the family of children of M.L.Narayanaswamy and their mother-A.Nilamma, on 06.12.1989 in which, the defendant and plaintiff were given 'C' and 'D' schedule properties respectively, in which, item No.7 i.e. the land bearing Sy No. 130 (New Sy No. 130/1) of Kittaganur village measuring to an extent of 02 acre, 06 guntas, was allotted to defendant No.1 and plaintiff, jointly, without making any specific division. The said property and item No.6 of 'C' schedule allotted in favour of Sri M.L. Narayanaswamy in the registered Partition Deed dated 30.06.1971. The said arrangement has been made at the time of execution of the partition deed dated 06.12.1989 during the lifetime of M.L.Narayanaswamy. It is also not in dispute that, father of plaintiff and defendant No.1- M.L.Narayanaswamy died on 08.07.1993 and therefore, it is
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NC: 2024:KHC:40092 RSA No. 1064 of 2020 contended by the plaintiff that, the schedule property is the ancestral property of plaintiff and defendant No.1. It is further case of the plaintiff that, after the demise of M.L.Narayanaswamy, since there are several other joint family properties and as such, the mother of plaintiff and defendant No.1 and other three brothers of the plaintiff have entered into partition on 01.04.1998 and 'C' schedule property was allotted in favour of plaintiff and 'D' schedule property was allotted in favour of defendant No.1. In the said partition dated 01.04.1998 land bearing Sy No.130/1 ( old Sy No.130) measuring to an extent of 01 acre, 03 guntas, with specific boundary was allotted in favour of defendant No.1 and the remaining 01 acre, 03 guntas, was allotted in favour of the plaintiff. In this backdrop of the case as contended in the plaint, the plaintiff claiming relief of declaration that, the plaintiff is the absolute owner in lawful possession and enjoyment of the suit schedule property as per the partition deed dated 06.12.1989 and 01.04.1998. It is the further case of the plaintiff that, the defendant No.1 has executed registered Gift Deed dated
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NC: 2024:KHC:40092 RSA No. 1064 of 2020 30.06.2005 in favour of defendant No.2 and the said Gift Deed is not binding on the plaintiff. On the other hand, it is the case of the defendants that, the defendant No.1 is the sole absolute owner in possession of the entire extent 02 acres, 06 guntas in Sy No.130/1 and denied the execution of the partition deeds dated 06.12.1989 and 01.04.1998. It is further stated that, after the demise of M.L.Narayanaswamy, there was oral partition in the family of children of M.L.Narayanaswamy and his wife-Neelamma and in the said oral partition, the suit schedule property was allotted to the defendant No.1 and thereafter, revenue records have been mutated in favour of the defendant No.1 and therefore, the defendant No.1 has disputed the possession of the plaintiff in respect of 01 acre, 03 guntas in Sy No. 130/1 of Kittaganur village. It is also to be noted that, the defendant No.1 executed Gift Deed dated 30.06.2005 in favour of the defendant No.2 and defendant No.2 is in continuous possession and cultivation of the suit schedule property, as per paragraph 11 of the written statement. It is not in dispute that the plaintiff has not
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NC: 2024:KHC:40092 RSA No. 1064 of 2020 challenged the change of revenue entries made in favour of the defendant No.1 by the competent authority as well as change of entry subsequent to the execution of the Gift Deed dated 30.06.2005. The said revenue entries by the competent authority are unchallenged till date. It is also pertinent to mention here that as per notification dated 25.01.2012 (Ex.P36), the entire extent of 02 acres, 06 guntas in Sy No. 130/1 of Kittaganur village was converted for residential purpose. In view of the aforementioned aspects, makes it clear that the plaintiff is not in possession of the suit schedule property and therefore, it is rightly contended by the learned Senior Counsel Sri. Anant Mandgi that, the prayer made in the plaint does not survive for consideration in view of the fact that, the relief of declaration cannot be granted to the plaintiff in the absence of seeking relief of possession, if the plaintiff is out of possession. The said aspect has not been re-appreciated by the First Appellate Court in the light of the judgments rendered by the Hon'ble Supreme Court and this court referred to above.
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21. At this juncture, it is relevant to cite the judgment of this court in the case of Aralappa vs. Jagannath and others reported in ILR 2007 KAR 339, wherein at paragraphs 27 to 31, it is held as follows:
"27. The Supreme Court in the case of VINAY KRISHNA vs KESHAW CHANDRA AND ANOTHER[ILR 1980 KAR 103] held that the plaintiff is not in exclusive possession of the property, the relief of possession ought to have been asked for as a consequential relief to the relief of declaration. The failure to do so undoubtedly bars the discretion of the Court in granting the decree of declaration. Merely because, the plaint says in the prayer column such other relief may be granted to the plaintiff, it does not mean that without a specific plea for possession and disregarding the bar under Section 42 (proviso) of the Specific Relief Act, the suit court be decreed even with reference to the portions of which the plaintiff has been in possession.
28. Section 34 of the Act reads as under:
"34. Discretion of Court as to declaration of status or right.- Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so
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NC: 2024:KHC:40092 RSA No. 1064 of 2020 entitled, as the plaintiff need not in such suit ask for any further relief:
Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief that a mere declaration of title, omits to do so."
29. In the light of the aforesaid judgment and the statutory provisions referred supra, it is clear that, the object of the section is to perpetuate and strengthen testimony regarding title and protect if form adverse attacks and to prevent future litigation by removing existing cause of controversy. The policy of the legislature is not only to secure to a wronged party possession of the property taken away from him but also to see that he is allowed to enjoy the property peacefully. The Proviso to the said Section shows the care that has been taken by the legislature to avoid multiplicity of suits and to prevent a person getting the declaration of right in one suit and immediately after the remedy already available in the other. This is clear from the proviso of the Section. The proviso lays down that no Court shall make such declaration where the plaintiff being able to seek further relief than mere declaration of title omits to do so. The object of this proviso is to avoid multiplicity of the suits. Where the plaintiff is entitled to some consequential relief, directly flowing from the right or title of which he seeks declaration in the suit, he must seek declaration in the first instance and a consequential relief in the same suit and not by two separate suits. This provisions is mandatory and enjoins the Court not to pass a declaratory decree where the plaintiff omits to
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NC: 2024:KHC:40092 RSA No. 1064 of 2020 seek further relief to which he is entitled to, as a natural consequence of the declaration. That is where the judicial discretion counts. It would be a case of proper exercise of judicial discretion, to refuse to grant a declaration sought for, even if the plaintiff established his title but he is not in possession, on the date of the suit and do not seek the relief of possession.
30. In a suit for declaration of ownership and permanent injunction, not only the plaintiff has to prove his title to the property, but also his possession over the property on the date of the suit. When the plaintiff is not in possession of the property on the date of the suit, relief of permanent injunction is not an appropriate consequential relief. The appropriate relief consequential to declaration of ownership would be recovery of possession of the property. When the plaintiff is out of possession of the property and does not seek relief for possession, a mere suit for declaration is not maintainable. The reason is not far to seek. It is well settled that no Court would grant any relief which is not useful, or futile and not effective. If title of the plaintiff is to be declared and he is not in possession and possession is with the defendant or some other person, the plaintiff would be having title of the property and the person in possession would be having possessory title to he property. It would lead to anomalous situation and create confusion in the public, which is to be avoided.
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31. Even if the plaintiff comes to Court asserting that he is in possession and that if it is found after trial that he was not in possession on the date of the suit, even then, the suit for declaration and permanent injunction can be granted if the plaintiff is not in possession on the date of the suit. In such circumstances, it is necessary for the plaintiff to amend the plaint before the judgment and seek relief of possession. Therefore, a suit for declaration of title and permanent injunction, by the plaintiff who is not in possession on the date of the suit, when he is able to seek further relief of recovery of possession also, omits to do so, the Court shall no make any such declaration and the suit is liable to be dismissed as not maintainable."
(Emphasis supplied)
22. The Hon'ble Supreme Court in the case of Meharchand Das vs. Lalbabu Siddiqui reported in AIR 2007 SC 1499 at paragraph 12 held as follows:
"12. The High Court, in our opinion, committed a manifest error in not relying upon the decision of this Court in Vinay Krishna [1993 Supp (3) SCC 129 : AIR 1993 SC 957] . The said decision categorically lays down the law that if the plaintiff had been in possession, then a suit for mere declaration would be maintainable; the logical corollary whereof would be that if the plaintiff is not in possession, a suit for mere declaration would not be maintainable."
(Emphasis supplied)
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23. The said aspect has been reiterated by the Hon'ble Supreme Court in the case of T.K.Mohammed Abubucker vs. P.S.M. Ahamed Abdul Khader reported in (2009) 14 SC 224, at paragraph 14 held as follows:
"14. Therefore, in a suit for declaration of title filed in 1984, reliance on title deeds dated 2-3-1982 (sale deed) and 25-8-1981 (partition deed) would not establish title as that would trace the title hardly for three years. To establish the title, it was necessary to trace it to a point beyond a minimum of twelve years before the suit. This became all the more necessary as the plaintiff did not have possession, nor were any revenue entries available to support the ownership or possession of the plaintiff and his vendors for a period of twelve years and more, prior to the suit."
24. In the case of Anathula Sudhakar vs. P. Bucchi Reddy dead by legal representatives reported in AIR 2008 SC 2033, the Hon'ble Supreme Court at paragraph 17 held as follows:
"17. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:
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(a) Where a cloud is raised over the plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with the plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar [Annaimuthu Thevar v. Alagammal, (2005) 6 SCC 202] ). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will
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NC: 2024:KHC:40092 RSA No. 1064 of 2020 not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case."
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25. The aforementioned principle was recently followed by the Hon'ble Supreme Court in the case of Vasantha (dead) through legal representatives vs. Rajalakshmi @ Rajamma (dead) through legal representatives reported in (2024) 5 SCC 282 and at paragraphs 37 to 39 and 45 to 53, it is held as follows:
"37. We notice that this Court in Gopalakrishna [Goplakrishna v. Narayanagowda, (2019) 4 SCC 592 : (2019) 2 SCC (Civ) 577] had observed that a reversioner ordinarily must file a suit for possession within 12 years from the death of the limited heir or widow. That metric being applied to the instant facts, it is after the death of Pavunammal, that the reversioner, or in this case the heir of the reversioner (Gopalakrishnan) ought to have filed the suit. The suit, the subject-matter of appeal before us is a suit for declaration simpliciter and not possession. So, the possession still rests with heir of Pavunammal. The twelve-year period stood expired in 2016 (with the death of Pavanummal in the year 2004) therefore, in our considered view, the suit is barred by limitation, which was filed in 1993.
38. The learned counsel for the respondents contended that since the suit stood filed in respect of the property, the clock for adverse possession stopped ticking. He
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NC: 2024:KHC:40092 RSA No. 1064 of 2020 relied on Tribhuvanshankar [Tribhuvanshankar v. Amrutlal, (2014) 2 SCC 788 : (2014) 2 SCC (Civ) 206] to buttress this claim.
39. A perusal of the said decision shows a reference has been made to Sultan Khan v. State of M.P. [Sultan Khan v. State of M.P., 1987 SCC OnLine MP 124 : 1991 MP LJ 81] to hold that if a suit for recovery of possession has been filed then the time period for adverse possession is arrested. The instant decision is distinguishable from the current set of facts on two grounds : one, that the holding of the Madhya Pradesh High Court was in respect of Section 248 of the M.P. Land Revenue Code, 1959 and had been referenced in an appeal arising from the State of M.P. itself; two, in the present facts, Gopalakrishnan has filed only a suit for declaration and not one for possession. The said declaration suit was filed in the year 1993. It was after the death of Pavunammal (in 2004) that the relief of possession became available to him. However, no such relief has been claimed. This decision does not in any way support the claim of the respondents.
***** Issue II
45. We now proceed to examine whether the suit for declaration simpliciter was maintainable in view of Section 34 of the SRA, 1963.
46. Section 34 reads as:
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NC: 2024:KHC:40092 RSA No. 1064 of 2020 "34. Discretion of court as to declaration of status or right.--Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so."
(emphasis supplied)
47. The learned Senior Counsel for the appellant has contended that it has been settled by the Courts below that the appellant has been in possession of the subject property since 1976. In view of the proviso to Section 34, the suit of the plaintiff could not have been decreed since the plaintiff sought for mere declaration without the consequential relief of recovery of possession.
48. The learned counsel for the respondent, in rebuttal, contended that since at the time of filing of the suit, the life interest holder was alive, she was entitled to be in possession of the property and therefore, the plaintiff not being entitled to possession at the time of institution of the suit, recovery of possession could not have been sought.
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NC: 2024:KHC:40092 RSA No. 1064 of 2020
49. We now proceed to examine the law on this issue. As submitted by the learned Senior Counsel for the appellant, in Vinay Krishna v. Keshav Chandra [Vinay Krishna v. Keshav Chandra, 1993 Supp (3) SCC 129] (two-Judge Bench), this Court while considering Section 42 of the erstwhile Specific Relief Act, 1877 to be pari materia with Section 34 of SRA, 1963 observed that the plaintiff's not being in possession of the property in that case ought to have amended the plaint for the relief of recovery of possession in view of the bar included by the proviso.
50. This position has been followed by this Court in Union of India v. Ibrahim Uddin (two-Judge Bench), elaborated the position of a suit filed without the consequential relief. It was observed : (SCC p. 173, paras 55-58) "55. The section provides that courts have discretion as to declaration of status or right, however, it carves out an exception that a court shall not make any such declaration of status or right where the complainant, being able to seek further relief than a mere declaration of title, omits to do so.
56. In Ram Saran v. Ganga Devi [Ram Saran v. Ganga Devi, (1973) 2 SCC 60] this Court had categorically held that the suit seeking for declaration of title of ownership but where possession is not sought, is hit by the proviso to Section 34 of the Specific Relief Act, 1963 and, thus, not maintainable. In Vinay Krishna v. Keshav
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NC: 2024:KHC:40092 RSA No. 1064 of 2020 Chandra [Vinay Krishna v. Keshav Chandra, 1993 Supp (3) SCC 129] this Court dealt with a similar issue where the plaintiff was not in exclusive possession of property and had filed a suit seeking declaration of title of ownership. Similar view has been reiterated observing that the suit was not maintainable, if barred by the proviso to Section 34 of the Specific Relief Act. (See also Gian Kaur v. Raghubir Singh [Gian Kaur v. Raghubir Singh, (2011) 4 SCC 567 : (2011) 2 SCC (Civ) 366] .)
57. In view of the above, the law becomes crystal clear that it is not permissible to claim the relief of declaration without seeking consequential relief.
58. In the instant case, the suit for declaration of title of ownership had been filed, though Respondent 1- plaintiff was admittedly not in possession of the suit property. Thus, the suit was barred by the provisions of Section 34 of the Specific Relief Act and, therefore, ought to have been dismissed solely on this ground. The High Court though framed a substantial question on this point but for unknown reasons did not consider it proper to decide the same."
51. In Venkataraja v. Vidyane Doureradjaperumal [Venkataraja v. Vidyane Doureradjaperumal, (2014) 14 SCC 502 : (2015) 1 SCC (Civ) 360] (two-Judge Bench), the purpose behind Section 34 was elucidated by this Court. It was observed that the purpose behind the inclusion of the proviso is to prevent multiplicity of proceedings. It was further
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NC: 2024:KHC:40092 RSA No. 1064 of 2020 expounded that a mere declaratory decree remains non- executable in most cases. This Court noted that the suit was never amended, even at a later stage to seek the consequential relief and therefore, it was held to be not maintainable. This position of law has been reiterated recently in Akkamma v. Vemavathi [Akkamma v. Vemavathi, (2021) 18 SCC 371] (two-Judge Bench).
52. This Court in Arulmigu Chokkanatha Swamy Koil Trust v. Chandran [Arulmigu Chokkanatha Swamy Koil Trust v. Chandran, (2017) 3 SCC 702 : (2017) 2 SCC (Civ) 334] (two-Judge Bench), while reversing the High Court decree, observed that because of Section 34 of the SRA, 1963, the plaintiff not being in possession and claiming only declaratory relief, ought to have claimed the relief of recovery of possession. It was held that the trial court rightly dismissed the suit on the basis that the plaintiff has filed a suit for a mere declaration without relief for recovery, which is clearly not maintainable.
53. That apart, it is now well settled that the lapse of limitation bars only the remedy but does not extinguish the title. Reference may be made to Section 27 of the Limitation Act. This aspect was overlooked entirely by the High Court in reversing the findings of the courts below. It was not justified for it to have overlooked the aspect of limitation, particularly when deciding a dispute purely civil in nature."
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26. From the afore cited decisions, it can be inferred that mere suit for declaration of title without seeking recovery of possession is not maintainable if plaintiff is not in possession.
27. Insofar as the submission made by the learned counsel for the appellants with regard to missing of 3rd sheet in Ex.P1, the PW1 admits the same in his cross- examination dated 14.10.2009, however, the First Appellate Court at paragraph 38 of its judgment made an observation about the same stating that, the 3rd sheet of Ex.P1 was inserted at the time of indexing. In this regard, I carefully examined the Ex.P1, wherein 3rd sheet is not found and therefore, the First Appellate Court has committed an error in construing the documents and therefore, reversing the well reasoned judgment and decree passed by the Trial Court is contrary to the Order XLI Rule 31 of CPC. At this juncture, it is appropriate to cite the judgments of the Hon'ble Supreme Court in the case of Punjab Urban Planning and Development Authority vs. Shiv
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NC: 2024:KHC:40092 RSA No. 1064 of 2020 Saraswati Iron and Steel Re-rolling Mills reported AIR 1998 SC 2352 and in the case of Ratnagiri Nagar Parishad vs. Gangaram Narayan Ambedkar and others reported in (2020) 7 SCC 275, wherein it is declared that, it is the duty of the plaintiff, in a suit for declaration, to establish his right over the suit schedule property based on cogent oral and documentary evidence and the weakness of the defendants cannot be considered while adjudicating the suit, seeking relief of declaration (See. (2014) 2 SCC 269).
28. Insofar as arguments advanced by the learned counsel appearing for the respondents insofar as the Confirmation Deeds produced at Ex.P34 and Ex.P41 are concerned, adjudication of the relevancy of the said documents does not arise as the suit itself is not maintainable on the ground that, the suit is barred by time. It is also to be noted that, the prayer made in the plaint, seeking declaratory relief is based on Partition Deeds dated 06.12.1989 and 01.04.1998 and the said suit is filed in the
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NC: 2024:KHC:40092 RSA No. 1064 of 2020 year 2006 and that apart the plaintiff was out of possession of the schedule property, and therefore, the contention raised by the learned Senior Counsel appearing for the appellants is to be accepted in view of the declaration of law made by the Hon'ble Supreme Court in the case of Shakti Bhog Food Industries Ltd., vs. Central Bank of India and Another reported in 2020 SCC Online SC 482. In the backdrop of this aspect, the judgment referred to by the learned counsel appearing for the respondents with regard to Doctrine of Estoppel under Section 115 of Indian Evidence Act,1872 as per B.L.Sreedhar's case (supra), is not applicable to the case on hand.
29. Though the learned counsel appearing for the respondents feebly argued that, the defendant No.1 has acted fraudulently, however, the element of fraud has to be pleaded and proved in the trial. Taking into consideration the fact that, the plaintiff has failed to establish the execution of partition deeds referred to above in respect of the division of the properties, and in the absence of
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NC: 2024:KHC:40092 RSA No. 1064 of 2020 pleadings relating to fraud, the contentions raised by the learned counsel appearing for the respondents cannot be accepted and the judgment referred to with regard to the same, in the case of Meghmala and others (supra) is not applicable to the case on hand.
30. After examination of the impugned judgment and decree passed by the First Appellate Court, it is not in dispute that, the family settlement/the partition deed requires compulsory registration, however, same could be accepted for collateral purpose to prove factum of partition. Having taken note of the factual aspects on record and on perusal of the original records, I am of the view that, the First Appellate Court committed an error in interfering with the well reasoned judgment and decree passed by the Trial Court without considering the scope and ambit Order XLI Rule 31 of CPC in view of the dictum of the Hon'ble Supreme Court in the case of Santhosh Hazari vs. Purushottam Tiwari reported in AIR 2001 SC 965. It is just to observe that, if there is perversity and irregularity in
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NC: 2024:KHC:40092 RSA No. 1064 of 2020 the judgment and decree passed by the First Appellate Court, and same has to be interfered with under Section 100 of CPC. It is pertinent to mention here that, the declaration of law made by the Hon'ble Supreme Court in the case of Balasubramaian and another vs. M.Arockiasamy (dead) through legal representatives reported in (2021) 12 SCC 529, wherein at paragraphs 13 to 15, the Hon'ble Supreme Court held as follows:
"13. In the light of the rival contentions, before adverting to the fact situation herein it is to be stated at the outset that on the general principles of law laid down in the decisions referred to by the learned Senior Counsel for the appellant, there can be no quarrel whatsoever.
13.1. In Gajaraba Bhikhubha Vadher v. Sumara Umar Amad [Gajaraba Bhikhubha Vadher v. Sumara Umar Amad, (2020) 11 SCC 114 : (2021) 1 SCC (Civ) 529] the fact situation arising therein was referred to and having taken note that five substantial questions of law had been framed, this Court had arrived at the conclusion that such substantial questions of law which arose therein had not been dealt with appropriately since it had not been considered in the light of the contentions. It is in that circumstance, this Court was of the view that the
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NC: 2024:KHC:40092 RSA No. 1064 of 2020 judgment of the High Court is to be set aside and the matter is to be remitted to the High Court.
13.2. In Ramathal v. Maruthathal [Ramathal v. Marut hathal, (2018) 18 SCC 303 : (2019) 2 SCC (Civ) 681] , the issue considered was as to whether the High Court was wrong in interfering with the question of fact in the second appeal. It was a case where both the courts below had arrived at a concurrent finding of fact and both the courts had disbelieved the evidence of witnesses. In such a case where such concurrent factual finding was rendered by two courts and in such situation, it had been interfered by the High Court in a second appeal, this Court was of the view that the interference was not justified. However, it is appropriate to notice that in the said decision this Court had also indicated that such restraint against interference is not an absolute rule but when there is perversity in findings of the court which are not based on any material or when appreciation of evidence suffers from material irregularity the High Court would be entitled to interfere on a question of fact as well.
13.3. The decision in Ram Daan v. Urban Improvement Trust [Ram Daan v. Urban Improvement Trust, (2014) 8 SCC 902 : (2014) 4 SCC (Civ) 669] , is a case, where in a suit for permanent injunction the plaintiff had pleaded possession from the year 1942 and the defendant had admitted the possession of the plaintiff from 1965 though it was contended that they had re-entered the property after being evicted in 1965. It is in that circumstance that the case of the plaintiff
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NC: 2024:KHC:40092 RSA No. 1064 of 2020 seeking to protect the possession was accepted and the necessity for seeking declaration did not arise as the defendant did not assert its right of ownership which is not so in the instant case.
13.4. In P.Velayudhan v. Ayammad [P.Velayudhan v. Ayammad, 1990 Supp SCC 9] and in Tapas Kumar Samanta v. Sarbani Sen [Tapas Kumar Samanta v. Sarbani Sen, (2015) 12 SCC 523 : (2016) 1 SCC (Civ) 482] , the decisions are to the effect that in a second appeal the High Court would not be justified in interfering with the finding of fact made by the first appellate court since such finding rendered would be based on evidence. On this aspect there can be no doubt that the same is the settled position of law but it would depend on the fact situation and the manner in which the evidence is appreciated in the particular facts.
13.5. In Ramji Rai v. Jagdish Mallah [Ramji Rai v. Jagdish Mallah, (2007) 14 SCC 200] though it is held that there was no need to seek for declaration and suit for possession alone was sustainable, it was held so in the circumstance where injunction was sought in respect of the disputed land which was an area appurtenant to their building in which case possession alone was relevant and restraint sought was against preventing construction of compound wall.
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14. In the background of the legal position and on reasserting the position that there is very limited scope for reappreciating the evidence or interfering with the finding of fact rendered by the trial court and the first appellate court in a second appeal under Section 100 of the Civil Procedure Code, it is necessary for us to take note as to whether in the instant facts the High Court has breached the said settled position. To that extent the factual aspects and the evidence tendered by the parties has already been noted above in brief. Further, what is distinct in the present facts of the case is that the finding rendered by the learned Munsif (trial court) and by the learned District Judge (first appellate court) are divergent. The trial court on taking note of the pleadings and the evidence available before it was of the opinion that the plaintiff has failed to prove exclusive possession and, in such light, held that the entitlement for permanent injunction has not been established. While arriving at such conclusion the trial court had taken note of the right as claimed by the plaintiff and in that background had arrived at the conclusion that except for the say of the plaintiff as PW 1 there was no other evidence. On the documentary evidence it was indicated that the kist receipts at Ext. A-5 series would not establish possession merely because the name has been subsequently substituted in the patta records and the kist had been paid.
15. As against such conclusion, the first appellate court in fact has placed heavy reliance solely on the kist
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NC: 2024:KHC:40092 RSA No. 1064 of 2020 receipts which in fact had led the first appellate court to arrive at the conclusion that the continuous payment of kist would indicate that the plaintiff was also in possession of the property. When such divergent findings on fact were available before the High Court in an appeal under Section 100 of the Civil Procedure Code though reappreciation of the evidence was not permissible, except when it is perverse, but it was certainly open for the High Court to take note of the case pleaded, evidence tendered, as also the findings rendered by the two courts which was at variance with each other and one of the views taken by the courts below was required to be approved."
31. Therefore, taking into consideration the analysis made above, the substantial questions of law framed by this court favour the defendants and accordingly, the appeal deserves to be allowed and suit of the plaintiff deserves to be dismissed. In the result, I pass the following:
ORDER
i) The Regular Second Appeal is allowed;
ii) The judgment and decree dated 31.07.2020 passed by the I Additional District and Sessions
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NC: 2024:KHC:40092 RSA No. 1064 of 2020 Judge, Bengaluru Rural District, Bengaluru in RA No. 34 of 2018 is hereby set aside;
iii) The judgment and decree dated 03.02.2018 passed by the IV Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru in OS No. 119 of 2006 is confirmed and the suit is dismissed.
SD/-
(E.S.INDIRESH) JUDGE SB List No.: 1 Sl No.: 44