Kerala High Court
Thamarasseri Roman Catholic Diocese vs Mrs.Umadevi Nambiar on 31 October, 1996
'CR'
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
WEDNESDAY, THE 23RD DAY OF NOVEMBER 2016/2ND AGRAHAYANA, 1938
AS.No. 464 of 1997 ( )
-----------------------
AGAINST THE ORDER/JUDGMENT IN OS 130/1989 ON THE FILE OF THE SUB
COURT, KOZHIKODE DATED 31-10-1996
APPELLANT/DEFENDANT :
---------------------
THAMARASSERI ROMAN CATHOLIC DIOCESE
REP. BY ITS PROCURATOR DEVSSIA'S SON
REV.FATHER JOSEPH KAPPIL.
BY ADVS.SRI. TOM K THOMAS
SRI.TOM K.THOMAS
RESPONDENT/PLAINTIFF:
----------------------
MRS.UMADEVI NAMBIAR,
D/O.ULLATTUKANDIYIL,
SANKUNNI,
W/O. SRI. K.P.P.NAMBIAR,
NOW RESIDING AT NO.1
CENTRAL AVENUE, DOORAVANI NAGAR,
BANGALORE -560 016.
BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR
BY ADV. SRI.P.G.RAJAGOPALAN
BY ADV. SMT.T.RESMI DAMODARAN
BY ADV. SRI.T.KRISHNAN UNNI (SR.)
THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 23-11-2016,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
AL/-
HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
HONOURABLE MR. JUSTICE P.SOMARAJAN
AS.No. 464 of 1997 ( )
JUDGMENT
23.11.2016
P.R.Ramachandra Menon 'CR'
&
P.Somarajan, JJ.
====================================
A.S.No.464 of 1997
====================================
Dated this the 23rd day of November, 2016.
JUDGMENT
P.Somarajan, J.
1. The appeal is against the decree and judgment dated 31.10.1996 in O.S.No.130/1989 of the Sub Court, Kozikode by the defendants. The suit was filed for a decree of partition by the plaintiff Umma Devi Nambiar. Originally the plaint schedule property belonged to Ullattukandiyil Sankunni. On his death the property devolved upon the plaintiff and her elder sister Mrs.Rani Sidhan. She executed a general power of attorney in favour of her sister Mrs.Rani Sidhan for the management and administration of her assets situated in India. After death of her husband she entered into a second marriage. The A.S.No.464 of 1997 -:2:- relationship between the plaintiff and her sister got strained due to her second marriage. Thereon she cancelled the power of attorney on 31.01.1985. A suit in O.S No. 16/1986 was filed before the Sub Court Kozhikode for partition of her = right over the property on getting information regarding execution of documents of alienation by her sister Mrs.Rani Sidhan. Subsequently, she came to know about the execution of assignment deed No.779/1981, release deed No. 780/1981, document Nos.111/1982 and 719/1982 (Exts.B5 to B8 documents). According to the plaintiff as per the power of attorney executed, her sister, the power holder did not have any power to execute document of alienation in respect of her = share over plaint schedule property. So she filed a second suit in O.S No.27/1988 before the Sub Court, Kozhikode for getting partition against the assignees under Exts.B5 to B8 documents as defendants viz; Ismath Beevi, Zeenath Beevi and Jameela. (hereinafter referred as Ismath Beevi and others for sake of convenience) and also her sister Rani Sidhan. An ex- parte preliminary decree for partition was passed on 7.01.1989 A.S.No.464 of 1997 -:3:- in that suit. It is thereafter, the plaintiff came to know about the further alienation made by Ismath Beevi and others in favour of one Tharuvayi Haji and Kunhammad under Exts.B3 and B4 documents which were executed prior to the institution of the second suit. It was further revealed that they in turn conveyed the property as per document Nos. 488/1988, 544/1988 (Exts.B1 & B2) in favour of the defendants herein. So the preliminary decree passed in O.S. No.27/1988 became infructuous. That has necessitated the plaintiff in filing a 3rd suit for partition against the defendants herein for getting = share by metes and bounds over the plaint schedule property.
2. The defendant contested the suit admitting the execution of power of attorney in favour of the plaintiff's sister Rani Sidhan. The property originally belonged to late father of the plaintiff and her sister Rani Sidhan. Earlier the plaintiff has filed a suit for partition in O.S.No.16 of 1986. The plaint schedule property was omitted in that suit intentionally. As such the present suit is barred under Order II Rule 2 of the Code of Civil Procedure and also by principles of constructive res A.S.No.464 of 1997 -:4:- judicata. The suit is also bad for non-joinder of necessary parties. Rani Sidhan has not been made a party to the suit. The consideration which was received by Rani Sidhan from Ismath Beevi and others were utilized for discharging the debts incurred by the common business conducted for and on behalf of the plaintiff as well. Ismath Beevi and others transferred the property to Tharuvayi Haji and Kunhammad in the year 1984. Tharuvayi Haji and Kunhammad in turn sold the property to the defendants. Tharuvayi Haji and Kunhammad had constructed a retaining wall having a height of 10 feet around the property by levelling the property up to the road level by filling with red soil. The power of attorney was executed in the year 1971. It is based on the power granted under the power of attorney, Rani Sidhan had executed the sale deed for and on behalf of plaintiffs and registered the same in accordance with the law in force. After returning to India, the plaintiff was staying in her family house situated just one kilometre away from the plaint schedule property. She was fully aware of all these transactions and never raised any objection and thereby acquiscesd the act of her A.S.No.464 of 1997 -:5:- sister in selling the property and subsequent sales thereon. The defendant had started construction in the property after obtaining sanction from the Corporation of Calicut by installing 123 friction piles to a depth of 12 metres to cast the foundation and basement for the building proposed to be constructed by spending an amount of `.8,00,000/-. This property was not included in the earlier suit for partition in O.S.No.16 of 1986. It was also contended that the suit is barred by limitation.
3. The lower court by its impugned judgment dated 31.10.1996 decreed the suit by passing a preliminary decree of partition for dividing the property into two equal halfs by metes and bounds against which this appeal is preferred by the defendants.
4. The lower court has framed 23 issues, including two additional issues regarding question of bar of limitation, application of Order 2 Rule 2 CPC and ultimately passed a preliminary decree for partition as prayed for.
5. It is an admitted case of both the parties that the plaintiff has executed Ext.A1 power of attorney in favour of his A.S.No.464 of 1997 -:6:- sister Rani Sidhan and her husband Dr.Sidhan. It is by virtue of the alleged power given under Ext.A1 power of attorney, the plaintiff's sister Rani Sidhan had executed Exts.B5 to B8 registered documents of conveyance in favour of Ismath Beevi, Zeenath Beevi and Nazeema in respect of the plaint schedule property. Exts.B5 to B8 documents are dated 27.01.1982, 30.01.1982, 25.06.1981 and 28.06.1981 respectively. There was an earlier suit in O.S.No.16/1986 filed by the plaintiff for partition. In that suit, the plaint schedule property was not included. A second suit for partition in O.S. No.27/1988 was instituted against Ismath Beevi, Zeenath Beevi and Nazeema who are purchasers of the property under Exts.B5 to B8 documents. Prior to the institution of that suit the right, title and interest obtained by Ismath Beevi and others were transferred under Exts.B3 and B4 documents to one Tharuvayi Haji and Kunhammad. Ext.B3 is dated 2.2.1984 and Ext.B4 20.9.1984. Both the documents are of the year 1984, i.e., prior to the institution of the earlier suit in O.S.No.27/1988. Interestingly, Tharuvayi Haji and Kunhammed were not made A.S.No.464 of 1997 -:7:- parties to the said suit, though Exts.B3 and B4 documents were got executed and registered in the year 1984 in accordance with the law in force, in respect of the plaint schedule property by Ismath Beevi and others. Though a preliminary decree was passed in the earlier suit for partition in O.S.27/1988, even according to the plaintiff, the decree became infructuous as there is omission on the part of the plaintiff to implead the persons representing the estate which is the subject-matter of that suit, namely Tharuvayi Haji and Kunhammad. It is thereafter the suit in O.S.No.130/1989 was filed for partition. By that time, Tharuvayi Haji and Kunhammad had executed Exts.B1 and B2 documents dated 4.5.1988 and 15.6.1988 transferring their alleged right, title and interest over the plaint schedule property in favour of the present defendant. Hence, they were made parties to the suit in O.S.No.130/1989 representing the subject-matter, the plaint schedule property.
6. The first question, in our view, to be considered is the maintainability of the suit and the question of bar of limitation. The present suit is one for partition alone. No other substantial A.S.No.464 of 1997 -:8:- relief, either for declaration of title, possession, recovery of possession or for setting aside any of the alienation alleged to have been made by her power holder and subsequent alienation made by the transferees included in the suit. Even there is no prayer for declaring that those documents are not binding on the plaintiff or for declaring her alleged right, title and interest over the property as on the date of the suit.
7. It was contended by the plaintiff that, since those documents, namely, Exts.B5 to B8 were executed by her sister Rani Sidhan, she can very well ignore those documents as the documents are ab initio void in the eye of law and that there was no power or authority granted in favour of her sister for effecting any alienation of her property by virtue of Ext.A1 power of attorney.
8. The expression "void" stands for something from which no legal consequences would flow. It is nonest in the eye of law having no illegal effect. There is a lot of difference between a void document and a voidable one. The specific case advanced by the plaintiff is two folded: firstly, the power of A.S.No.464 of 1997 -:9:- attorney (Ext.P1) does not empower her sister, the power holder, to execute any deed of conveyance for and on her behalf or to make any alienation in respect of her one half share over the plaint schedule property. Secondly, the power holder, the sister of the plaintiff, had fraudulently executed documents of conveyance in favour of strangers with respect to the plaint schedule property, and the same was concealed from her knowledge.
9. A mere perusal of Ext.A1 power of attorney and the clauses therein, numbered as 1 to 22, would prima facie show that the power of attorney was executed only for management of properties belonged to the plaintiff. More emphasis was given to Clauses 18 to 22 by the learned counsel for the defendant so as to advance an argument that power to register a document was also given which would intake registration of deeds of conveyance. It was submitted that clause 20 stands for execution of document, by way of security and to register the same whenever the attorney found it necessary to borrow amount. In Clause 22 also the power to sign document and to A.S.No.464 of 1997 -:10:- register the same before the appropriate registry was included. It was argued by the learned counsel for the defendant that in Clause 20 and 22, the power to execute and register documents included. Clause 20 deals with the execution and registration of security documents. Clauses 20 and 22 are extracted below for reference:
"20. to make borrowals, if and when necessary, with or without security and to execute and, if necessary register all documents in connection therewith.
22. to sign in your own name documents for and on my behalf and present them for registration in the appropriate registry office having jurisdiction."
10. If the intention of the principal was to give power to execute any document of title, alienation, conveyance or transfer of property, it might have found a place in the power of attorney itself specifying the power to execute any document of deed of conveyance, assignment, or sale deeds. In Ext.A1 power of attorney, there is no such clause. The wordings used in the power of attorney in Clauses 1 to 22 are specific, clear and unambiguous. Nowhere it is stated in the power of attorney that it was intended for empowering the power holder A.S.No.464 of 1997 -:11:- to execute any deed of conveyance, deed of transfer, deed of assignment, deed of sale, transfer of property, delivery of possession of the property or to effect any registered deed of transfer. All these are conspicuously absent in Ext.A1 power of attorney. On the other hand, Clause 20 specifically states that it was only to execute and register any document by way of security in case of any borrowal of amount when it is found necessary by the attorney. Further, clause 22 is the last clause in Ext.A1 power of attorney specifying generally the authority which was given under that power of attorney. Normally the last clause would be a conclusion of what power had been given under the power of attorney. In fact, in clause 22, it was stated that the power holder has the right to sign and register documents for and on behalf of the principal without specifying the nature of the documents. So it can be interpreted only in relation with clauses 1 to 21. It is the rule of prudence in execution of power of attorney to incorporate a closing clause generally enumerating the power which were given under the said document and it would be dangerous to interpret the A.S.No.464 of 1997 -:12:- closing clause, apart from other clauses so as to include a power which was not specifically granted in the earlier clauses. Only a harmonious interpretation with the earlier clauses alone can be applied in a closing clause, unless the same is different, specific and clear with respect to any power given there under apart from other clauses.
11. In fact, there is no power given either under clauses 1 to 21 or under clause 22 to the power holder to execute any deed of conveyance or sale or gift or to register any deed of conveyance. Further, the power given for management of property does not by itself intake any power to alienate the property or any portion thereof.
12. Exts.B5 to B8 documents, registered deed of transfer of titles, are related back to 27.1.1982, 30.1.1982, 25.6.1981 and 28.6.1981 respectively and are executed by the power holder under the premise of Ext.A1 power of attorney, for and on behalf of plaintiff in favour of Ismath Beevi and others. As discussed in earlier paragraphs, no such power has been given under Ext.A1 Power of Attorney to execute Exts. B5 to B8 A.S.No.464 of 1997 -:13:- documents of transfer.
13. Then the question which would arise for consideration is whether the title holder can ignore those documents, namely Exts.B5 to B8 as it was executed exceeding the power given to the power holder under Ext.A1. There is a lot of difference between the expression "exceeding the power" and "without power". The former one stands for an act done exceeding the authority given. The latter one stands for something done by a stranger having no authority or power at all. Since Exts.B5 to B8 documents purported to have been executed under Ext.A1 power of attorney, for and on behalf of the principal, it cannot be said that it was executed by a total stranger. In other words, Exts.B5 to B8 registered deeds of titles were executed by the power holder with reference to Ext.A1 power of attorney and purported to have been under the power of that document, Ext.A1. Whether such a power was given under Ext.A1 power of attorney is a matter to be adjudicated judicially by interpreting the different clauses embodied therein with reference to the intention of the parties. As stated in earlier A.S.No.464 of 1997 -:14:- paragraphs, we have already taken note of the contents of Ext.A1 power of attorney and found that there is no sufficient clause in Ext.A1 power of attorney granting and authorizing the power holder to execute deed of transfer of title. But the documents, Exts.B5 to B8, were executed by the power holder under Ext.A1 power of attorney, for and on behalf of principal and not by a stranger. So the plaintiff cannot shut her eyes on that documents and if it was allowed to continue, it would be clog on the title of the plaintiff. At no stretch of imagination, these documents can be considered as void. The legal position would be a different one when the documents were executed by a total stranger, having no connection whatsoever with the title holder of the property.
14. The execution of Exts.B5 to B8 documents by the power holder exceeding the power alleged to have been given by the title holder are grounds available for setting aside those registered deeds, and a suit for setting aside those documents should be and must be filed within a period of three years from the date of notice/date of knowledge. The plaintiff has no direct A.S.No.464 of 1997 -:15:- knowledge regarding execution of those documents. At this juncture, the interpretation given to the expression "when a person said to have notice" assumes importance. The expression "a person is said to have notice" as per Section 3 (interpretation clause) of Transfer of Property Act, 1882 is extracted below for reference:
"a person is said to have notice" of a fact when he actually knows that fact, or when, but for willful abstention from an enquiry or search which he ought to have made, or gross negligence, he would hav known it.
Explanation 1- Where any transaction relating to immovable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, where the property is not all situated in one sub-district, or where the registered instrument has been registered under sub-section (2) of Section 30 of the Indian Registration Act, 1908 (16 of 1908), from the earliest date on which any memorandum of such registered instrument has been filed by any Sub Registrar within whose sub-
district any part of the property which is being acquired, or of the property wherein a share or A.S.No.464 of 1997 -:16:- interest is being acquired, is situated;
Provided that--
(1) the instrument has been registered and its registration completed in the manner prescribed by the Indian Registration Act, 1908 (16 of 1908) and the rules made thereunder.
(2) the instrument or memorandum has been duly entered or filed, as the case may be, in books kept under Section 51 of the Act, and (3) the particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under Section 55 of that Act.
Explanation II -- Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof. Explanation III --A person shall be deemed to have had notice of any fact if his agent aquires notice thereof whilst acting on his behalf in the course of business to which that fact is material:
Provided that, if the agent fraudulently conceals the fact, the principal shall not be charged with notice thereof as against any person who was a party to or otherwise cognizant of the fraud."
(emphasis supplied) A.S.No.464 of 1997 -:17:-
15. The interpretation given to the expression "a person is said to have notice" as per Section 3 of the Transfer of Property Act covers two situations. The first limb is applicable when a fact actually is known to a person. The second limb deals with constructive notice on the ground of wilful abstention from an enquiry or search which he/she ought to have been done or on gross negligence. The whole scheme of definition given to the expression "a person is said to have notice" with its explanation would show that it has got exhaustive meaning sufficient enough to take within its sweep, a wilful abstention from an enquiry or search which he ought to have been done or on gross negligence. It is two folded; one is the wilful abstention from an enquiry or search and the other is gross negligence in making enquiry or search. It is the principle of prudence and reasonability of an ordinary man that really embodied in the 2nd limb of the said expression. While applying the principle of prudence and reasonability, no person can remain as a mute spectator with respect to his or her property or what is going on with respect to his or her property after giving a general A.S.No.464 of 1997 -:18:- power of attorney for the management of property to another person. The documents were executed in the year 1981 and 1982. The Power of Attorney was cancelled in the year 1985. Till that time no enquiry or search was conducted by the plaintiff with respect to any creation or registration of transfer deeds or transfer of tittle by the power holder. Even according to her, her relationship with the power holder became strained on the reason of her second marriage. No acceptable reason is advanced by the plaintiff why she had not made any enquiry or search with respect to the acts and deeds done by the power holder, even at the time of cancellation of the power of attorney. According to her there were sufficient reasons for cancelling the power of attorney in the year 1985. The power of attorney was executed in the year 1971. It was in force for a long period of 13 years and it was cancelled when the relationship became strained. Even at that time she did not make any enquiry or search with respect to any document of transactions or execution of any deed of conveyance with respect to her properties. If any such enquiry or search was A.S.No.464 of 1997 -:19:- made at that time or at the time when the relationship was strained, it would have come to her notice much earlier. Gross negligence is writ large on its face which would definitely make the position crystal clear regarding constructive notice of the factum of execution of those documents Exts. B5 to B8.
16. In the present case, there is nothing to show the possession of the property by the plaintiff except her earlier title over the property by devolution. She did not have any case that the power holder who was possessing the property and managing the property never handed over possession to the purchasers. But simply advanced a case that she is in possession of the property without disputing the factum of management and possession held by the power holder over the property before its cancellation. She did not have any case that she took possession of the property on cancellation of Ext.A1. In fact, it was not possible for the plaintiff to take possession of the plaint schedule property which was already parted with by the power holder to the purchasers under Exts.B5 to B8 documents. In short, the power holder who was managing the A.S.No.464 of 1997 -:20:- property and possessing the property for and on behalf of the plaintiff as on the year 1981 and 1982 had effected delivery of possession to the purchasers under Exts.B5 to B8 documents. This fact further stands supported by the subsequent execution of document of transfer of Exts. B3 & B4 and subsequent alienation under Exs.B1 & B2 wherein also one of the terms is that possession of property was delivered. The factum of construction made over the property would also support the possession held by purchasers under Exts.B5 to B8 documents. Neither the plaintiff nor the power holder has any case that no such possession was diverted at the time of execution of Exts.B5 to B8 documents. It is also come out in evidence that the subsequent purchasers Tharuvayi Haji and Kunhammad had effected further improvements in the property by levelling the property to the height of the road and constructing compound wall around it. Even in the plaint, it was admitted by the plaintiff that she came to know about the transfers made by her sister, the power holder, when the defendants herein who are the subsequent purchasers under Tharuvayi Haji and Kunhammad A.S.No.464 of 1997 -:21:- effected further improvements in the property by installing friction pillars for the construction of foundation basement for the proposed building in that property. She did not have any case that the above said defendants unauthorisedly trespassed into her property and reduced the same to their possession. She did not mount the box to testify her contentions regarding possession of property. All these would clinchingly show the possession of property by the defendants in continuation of their predecessor viz., Tharuvayi Haji and Kunhammed, and Ismath Beevi and others. Yet another reason is also available to show that the plaintiff was not in actual possession of the plaint schedule property as the above said property was not included in the first suit for partition instituted by her against her sister, the power holder, and others. So in any view of the matter it is well clear that the plaintiff is not in possession of the plaint schedule property. This has to be viewed along with the question of constructive notice under Section 3 of the Transfer of Property Act. Gross negligence in making a search with respect to her property which was in the possession of somebody else is A.S.No.464 of 1997 -:22:- writ large on its face. It is against the reasonability and prudence of an ordinary man which would attract the application of Section 3 of the Transfer of property Act giving constructive notice to the execution of all documents commencing from Exts. B5 to B8 and subsequent documents Exts.B3 and B4 and the documents now stand in the name of defendants Exts. B1 and B2.
17. Interestingly by the time when the power of attorney was cancelled in the year 1985, the remedy of cancelling Exts. B5 to B8 documents, became time barred, by the application of constructive notice as embodied in the interpretation clause to the expression " a person is said to have notice".
18. Yet another important aspect is also relevant at this juncture from what time onwards constructive notice would come into play or began to run, whether it is from the date of execution of the document or from a later point of time. The concept of constructive notice based on the prudence and reasonability casting a statutory duty on the title holder to be vigil with respect to the property owned by him and when A.S.No.464 of 1997 -:23:- constructive notice of a fact established it would start from the moment of execution of the document. In other words it would relate back to date of its execution and the registration of a document. It is true that it is quite permissible in law to execute the document and to register it on a subsequent point of time. But as per Section 3 of the Transfer of Property Act, more emphasis is seen given to the factum of registration and as such we are of the considered view that the constructive notice would start at least from the date of registration of the document.
19. Another question would also arise whether it is legally permissible for the title holder plaintiff to have separate and independent cause of action based on transfers made by the alienee (Exts.B3 and B4) or any further transfer made on the property (Exts.B1 and B2) and whether it would constitute a new cause of action for the plaintiff title holder. What is to be looked into is the creation of registered document in derogation of right, title and interest of the title holder, the plaintiff. When a registered document purported to have been executed for and A.S.No.464 of 1997 -:24:- on behalf of the plaintiff or the person who represents the plaintiff by effecting alienation/transfer over the property from that day onwards a cause of action would arise when there is notice of execution of the said document/ transfer/alienation either by direct notice or by constructive notice and the time began to run from the date of its execution and registration. If there is any subsequent transfer by the alinees it will not give a fresh cause of action to the plaintiff as the subsequent alienation would be on the basis of right, title or interest if any acquired by the alienee over the property. So there cannot be a continuing cause of action in the matter of execution of a sale deed or assignment deed or deed of conveyance in derogation of right, title and interest of the original title holder. The subsequent transfers made by the alinee will not give rise a fresh cause of action for a suit for setting aside either the first transfer of alienation or subsequent transfers effected by the alienee.
20. Regarding the application of Section 41 of the Transfer of Property Act as it would come into play only when the transferee had taken all reasonable care to ascertain the right, A.S.No.464 of 1997 -:25:- title and interest of the transferor over the property or the power to make the transfer and also that the transferee has acted in good faith. Section 41 of the Transfer of Property Act is extracted below for reference.
41. Transfer by ostensible owner :- Where, with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it.
Provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith.
21. Expression "good faith" has to read along with the expression "reasonable care" as embodied in proviso to Section
41. It is not at all necessary that the transferee should establish utmost good faith. The standard of good faith which can be exercised by the transferee is the due care and caution which can be exercised by a prudent man at the time of purchase of immovable property. Going by Ext.A1 power of attorney, as discussed in earlier paragraph, the power to execute a deed of title or transfer of title over the property is conspicuously absent. A.S.No.464 of 1997 -:26:- There is no sufficient authority or power given under Ext.A1 document to effect any transfer of ownership or title over the property. If any reasonable care was taken by the transferee before obtaining Exts. B1 to B8 documents, it would have come to their notice. So they cannot seek shelter under the umbrella of Section 41 of the Transfer of Property Act.
22. Interestingly, in the present suit, there is no substantial prayer either for declaring the right, title and interest of the plaint schedule property which is the subject matter of transfer under Exts.B5 to B8 registered deeds of transfer. There is no prayer for setting aside Exts. B5 to B8 documents either on the ground of fraud played by the power holder or on the ground of exceeding power under Ext.A1 document. The legal position is well settled by the Apex Court in Ananthula Sudhakar v. P. Buchi Reddy and others [(2008) (4) SCC 594].
" 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 A.S.No.464 of 1997 -:27:- interference with the plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
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."
23. No suit is filed for setting aside documents executed as Exts.B5 to B8 or any subsequent transfers made by alienees and no suit was filed for recovering possession of the property already diverted under Exts. B5 to B8 documents of the year of 1981 and 1982 and now more than 33 years have lapsed.
24. It is also settled that in a suit for partition if the plaintiff is not in possession of the property necessarily, there should be a prayer for recovery of possession and mere suit for partition without a prayer for recovery of possession of property will not stand. The rationale behind the decision drawn in A.S.No.464 of 1997 -:28:- Ananthula Sudhakar v. P.Buchi Reddy (supra) is squarely applicable in a suit for partition filed without a prayer for recovery of possession when the plaintiff was out of possession of the property.
25. It is now well settled that the plaintiff is bound to include all the reliefs which are available on a cause of action and when there is failure or omission, a second suit based on the same cause of action would stand hit by the bar under Order 2 Rule II of CPC. Generally Order II Rule 2 CPC is not applicable in suits of partition by the very same parties but on different properties. The principle behind is that each item of property would give rise to a continued cause of action for partition until the same was partitioned by metes and bounds or by agreement/document. The legal position is settled by a decision reported in Gopalan v. Vasu [1986 KLT 1100].
From the discussion made above, it is clear that the lower court went wrong in decreeing a simple suit for partition without taking into account the factum of registration of documents of transfer, diversion of possession of property, lack A.S.No.464 of 1997 -:29:- of prayer for declaration or setting aside the document of transfer and recovery of possession. We do not find any merits in the decree and judgment of the lower court and hence the same is set aside. The suit is liable to be dismissed by allowing this appeal and we are doing so.
No costs.
Sd/-
P.R.Ramachandra Menon Judge Sd/-
P.Somarajan Judge al/-
True copy P.S to Judge