Bangalore District Court
Sri.M.Ramachandrappa vs Sri.P.Ramachandra Reddy on 5 November, 2020
BEFORE THE LXVI ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.
(CCH-67)
DATED: This the 5 th day of November, 2020
PRESENT
Smt.K.KATHYAYANI, B.Com., L.L.M.,
LXVI Addl.City Civil & Sessions Judge,
Bengaluru.
O.S.No.551/2001
PLAINTIFF: Sri.M.Ramachandrappa,
S/o Late Sri.Kondamuniyappa,
Major, R/at Yamalur Village,
Varthur Hobli,
Bengaluru South Taluk.
Since dead by his LRs.
1(a) Smt.Saraswathamma,
W/o Late Sri.M.Ramachandrappa,
Aged about 65 years,R/at No.96/3,
Opp: Govt. School, Yamalur,
Bangalore - 560 037.
1(b) Sri.R.Satish,
S/o Late Sri.M.Ramachandrappa,
Aged about 44 years, R/at No.96/3,
Opp: Govt. School, Yamlur,
Bangalore - 560 037.
1(c) Sri.R.Sudarshan,
S/o Late Sri.M.Ramachandrappa,
Aged about 42 years, R/at No.96/3,
Opp: Govt. School, Yamlur, Bangalore
- 560 037.
1(d) Smt.R.Lakshmi,
D/o Late Sri.M.Ramachandrappa,
2 OS.No.551/2001
Aged about 40 years, R/at No.96/3,
Opp: Govt. School, Yamlur,
Bangalore - 560 037.
1(e) Sri.R.Srinivas,
S/o Late Sri.M.Ramachandrappa,
Aged about 38 years, R/at No.96/3,
Opp: Govt. School, Yamlur,
Bangalore - 560 037.
(By Sri.N.Devaraj, Advocate.)
- VERSUS-
DEFENDANTS: 1.Sri.P.Ramachandra Reddy,
S/o Sri.Papaiah, Major,
R/at No.15, Kempapura Village,
Yamlur Village, Varthur Hobli,
Bangalore South Taluk.
(By Sri.H.L.Ramesh, Advocate.)
2. Sri.Muniswamy @ Muniswamappa,
Since dead by his Lrs.
Are on record vide order
dated:12.5.2013;
2(a) Smt.Munirathnamma,
W/o Late Sri.Muniswamy,
Aged about 65 years, R/at No.210,
Opp: Government School,
HAL, Bengaluru - 560 037.
2(b) Smt.Renuka W/o Sri.Jayapal,
Aged about 40 years, R/at Solepura,
Ambenahalli Post, Sarjapura Hobli,
Anekal Taluk, Bangalore - 562 125.
2(c) Smt.Shobha,
W/o Sri.S.R.Venkatachalam,
Aged about 37 years,
R/at No.3, 5th Cross,
3 OS.No.551/2001
8th Main, J.C.Nagar,
Mahalakshmipuram Post,
Bangalore - 560 086.
2(d) Smt.Manjula,
D/o Late Sri.Muniswamy,
Aged about 34 years, R/at No.210,
Government School,
HAL, Bangalore - 560 037.
2(e) Jayashree.M.
D/o Late Sri.M.Muniswamy,
Aged about 31 years, R/at No.101,
5th Cross, Sea College Road,
Muneshwara Layout,
KR Puram, Bangalore - 560 036.
2(f) Bhagya W/o G.V.Rajanna,
Aged about 28 years, R/at No.11,
1st Main, 3rd Cross, Hosapalya,
Hosur Main Road, Bommanahalli Post,
Bangalore- 560 068.
2(g) M.Usha W/o N.Gopal,
D/o S.N.Narayanaswamy,
Aged about 25 years,
R/at Muthsandra Post,
Anagondanahalli Hobli,
Belkere, Bangalore - 560 087.
2(h) Swarnalatha W/o G.R.Ravikumar,
Aged about 22 years, R/at No.30,
1st A Cross, K.N.Shiva Building,
Narayanappa Layout,
Akshaya Nagar, Ramamurthynagar,
Bangalore - 560 016.
(By Sri.P.H.Rajalingam, Advocate.)
Date of institution of the suit: 18.01.2001
Nature of the suit (suit on Permanent Injunction
4 OS.No.551/2001
pronote, suit for declaration
and possession suit for
injunction,etc) :
Date of the commencement of 30.11.2009
recording of the evidence:
Date on which the Judgment 05.11.2020
was pronounced:
Total duration Year/s Month/s Day/s
19 09 17
-------------------------------------------------------------------------
(Smt.K.KATHYAYINI),
LXVI Addl. City Civil & Sessions Judge
Bengaluru.
JUDGMENT
Initially the original plaintiff Sri.M.Ramachandrappa filed the suit against the 1st defendant Sri.P.Ramachandra Reddy alone for the relief of permanent injunction and thereafter got amended his suit for the relief of declaration and consequential injunction and also got impleaded the 2nd defendant.
2. During the trial, since, it is reported that plaintiff and the 2nd defendant are dead, their respective LRs i.e., P- 1(a) to P-1(3) and D-2(a) to D-2(h) are brought on record. 5 OS.No.551/2001
3. The suit property is all the piece and parcel of Sy.No.3/1 measuring 1 acre 19 guntas situated at Yamlur Village, Varthur Hobli, Benagluru South Taluk bounded by;
East - Burial Ground.
West - Kempapurada Papaiah's Garden Land, North - Kempapura Road, South - Chikkanahalli Ramaih's Garden Land.
4. The brief facts of the plaintiff's case are that;
a) His father Late Sri.Kondamuniyappa had purchased the suit property from one Sri.Narayanappa S/o Sri.Gopalaiah vide registered sale deed dated 26.10.1968.
b) His father executed a WILL dated 21.12.1983 in favour of himself and his brother Sri.Muniswamappa/the 2nd defendant bequeathing all the properties. His mother passed away on 14.02.1982.
c) After the demise of his mother, he looked after his father till his death. During the life time of his father, there was a proceedings pending before the Tahasildar, Bengaluru South Taluk in Case No.HOACR.34/1983-84 and to participate in the said proceedings, he used to take his father to the office of the Tahasildar and got his evidence recorded and finally got the orders of re-grant on 6 OS.No.551/2001 25.10.1993 in favour of his father. He met all the expenses towards the said proceedings. Due to these reasons, his father bequeathed the suit property in his favour.
d) His father passed away on 10.09.1994 and consequent to the death of his father, the registered WILL executed by his father on 21.12.1983 came into force and he along with his brother the 2 nd defendant succeeded to the estate of his father by way of testamentary succession.
e) The mutation was also effected based upon the said WILL and as per the mutation register, the katha was also transferred to his name in respect of the suit property.
f) The defendant/the 1st defendant has no manner of right, title or interest in the suit property, but laying a false claim to a piece of the suit property on the ground that his brother the 2nd defendant (who was impleaded later) executed the registered sale deed on 21.04.1995 to an extent of 20 guntas out of 1 acre 19 guntas.
g) In the WILL dated 07.07.1983 executed by his father, 20 guntas was given by his father to the 2 nd defendant and later the said WILL i.e., WILL dated 07.07.1983 (for convenience, "the 1 st WILL") was canceled 7 OS.No.551/2001 and the subsequent WILL dated 21.12.1983 (for convenience, "the 2nd WILL) was executed wherein the entire suit property was given to him.
h) The 2nd defendant by misleading the 1st defendant by showing the canceled 1 st WILL, appears to have created and concocted a fake sale deed in favour of the 1 st defendant to the said extent i.e., 20 guntas. The 2 nd defendant is rich and highly influential in the locality, thus, he can manage the things and knock off the property.
i) The 1st defendant based upon the said fake sale deed, tried to enter and interfere with the suit property and attempted to put up fence to the western portion of the suit property. He objected the said high handed acts and on questioning the same, the 1st defendant brought the afore said sale deed to his notice which is fake, illegal and not binding upon him.
j) No person can transfer better title than the vendor himself has in respect of the immovable properties. The alienator had no manner of right, title or interest in respect of the suit property or any portion of it. Consequently, the 8 OS.No.551/2001 1st defendant claiming to be alleged alienee cannot derive any right, title and interest in respect of the suit property.
k) The alleged sale deed executed by the 2 nd defendant in favour of the 1 st defendant is non est and has no value, worthless and the same is invalid and void, illegal and unenforceable in the eye of law.
l) But, based upon the said alleged sale deed, the 1 st defendant tried to disturb his possession and immediately, he has approached the police on 29.12.1995 and made complaint and similarly a petition to the revenue authorities including the Tahsildar not to modify the khatha and revenue records in the name of the 1 st defendant based upon the said concocted sale deed.
m) Viewed from any angle, the 1 st defendant has no manner of right, title or interest in respect of the suit property. His brother the 2nd defendant being fully aware of the fact that the 1st WILL was canceled and the 2nd WILL was executed by their father on 21.12.1983, has deliberately sold an extent of 20 guntas of land in favour of the 1st defendant under the registered sale deed dated 9 OS.No.551/2001 21.04.1995. Hence, the said sale deed is not binding on him.
n) The cause of action for the suit arose on 29.12.1995 i.e., the date on which the 1 st defendant tried to trespass on the suit property. Hence, prayed to decree the suit as sought for.
5. In response to the due service of summons, the 1 st and 2nd defendants put their appearance through their respective counsels and filed their separate written statements wherein the 1st defendant has admitted the plaint averment that the father of the plaintiff has purchased the suit property, but denying the other plaint averments has contended that;
a) He has purchased 20 guntas of land in the suit property vide registered sale deed dated 21.04.1995 executed by the brother of the plaintiff i.e., the 2 nd defendant who had acquired the same under the 1 st WILL, got mutated in his/2 nd defendant's name and has been in peaceful possession and enjoyment of the same since the date of the 1st WILL and thereafter, he has been in peaceful 10 OS.No.551/2001 possession and enjoyment of the same since from the date of his purchase.
b) The 2nd WILL is a fabricated one and the alleged mutation of the suit property in favour of the plaintiff based on the 2nd WILL is ineffective and inoperative. The cancellation of the 1st WILL by the 2nd WILL is false.
c) He has purchased the property for valuable consideration and the plaintiff has set up a fabricated WILL as well as attempting to make unjust enrichment.
d) He has not interfered with the possession of the plaintiff by trying to put up fence as he is already in peaceful possession and enjoyment of the property he has purchased and he has got good title over the same.
e) The plaintiff has made false allegation that he has tried to disturb the alleged possession of the plaintiff on 29.12.1995 and hence, the plaintiff approached the police. He has never tried to tress pass over the property as alleged by the plaintiff.
f) The plaintiff had instituted a suit against him in OS.No.7/1996 on the file of the II Munsiff, Bengaluru and in the said suit, he had filed IA.No.2 on 06.04.1996 praying 11 OS.No.551/2001 for rejection of the plaint for want of territorial jurisdiction which lies within the ambit of City Civil Court, Bengaluru.
g) The said case was posted for filing objections of the plaintiff. But, the plaintiff did not file any objections and without withdrawing the said suit, has filed another suit in OS.No.438/1996 on the file of City Civil Court, Bengaluru without disclosing the pendency of OS.No.7/1996 on the very same facts in respect of the same property.
h) In OS.No.7/1996, on 18.12.1996, the plaintiff was examined as PW-1. On hearing the arguments on the same day, the case was posted for orders/judgment and on 21.12.1996, the judgment was passed.
i) Being aggrieved by the said judgment, he had preferred appeal in RA.No.27/1997 which came to be allowed and case was remanded back to the trial Court.
j) While he had obtained the certified copies of the plaint to file the above appeal, he was shocked to see that in the schedule to the plaint, the name of the Village where the property is situated, viz., Yemaluru had been erased and the name Gunjur was typed.
12 OS.No.551/2001
k) In order to obtain favourable orders, the plaintiff had played fraud on Court with mala fide intention and deliberately erased Yemaluru and inserted Gunjur since the Court had jurisdiction to try the matters falling within the ambit of Gunjur though had no jurisdiction to try the matters falling within the ambit of Yemaluru.
l) The plaintiff has played fraud on him by deliberately furnishing a copy of the plaint showing the village Yemaluru both in the body of the plaint and in the schedule to the plaint in order to ensure that he was kept in dark about the fraud played by the plaintiff.
m) The plaintiff without any reservation, got withdrawn the suit in OS.No.438/1996 and thereafter, more than two years after having withdrawn the said suit in OS.No.438/1996, had filed an application seeking restoration of the case and the same came to be dismissed,
n) The plaintiff after having repeatedly argued that the Court had jurisdiction, had simultaneously moved an application in OS.No.7/1996 for transfer of the case which came to be allowed and seized before this Court renumbering as OS.No.551/2001.
13 OS.No.551/2001
o) This suit is barred on account of the plaintiff having already withdrawn OS.No.438/1996. The plaintiff by his aforesaid acts, dis-entitled himself to any relief from this Court. Hence, prayed to dismiss the suit with costs.
6. The 2nd defendant has admitted,
a) The relationship with the plaintiff.
b) The fact that their father had purchased the suit property.
c) The fact that their father had executed the 1 st WILL.
d) The fact that he has sold 20 guntas of land in suit property to the 1st defendant.
7. Denying the other plaint averments, he has contended that;
a) The plaintiff was never the owner of the suit property. If the plaintiff had to question the existence or other wise of the 2nd WILL, the plaintiff ought to have sued him, but on the other hand, the plaintiff has sued only the 1st defendant which establishes that the plaintiff is up to some mischief to make money out of the whole situation. 14 OS.No.551/2001
b) The litigation is going on between the plaintiff and the 1st defendant since the year 1996 and all these years there was no cause of action against him. The plaintiff having learnt that he has executed the sale deed in favour of the 1st defendant has not called in question the same till today except filing an impleading application on 27.03.2008 for the first time.
c) The plaintiff is completely aware of the factual situation that even during the life time of their father and after his/their father's demise, he was in possession of the suit property and handed over the possession of the same to the 1st defendant vide registered instrument, the plaintiff has no manner of right, title or interest at this belated stage that too having known about these transactions from the year 1996 even admittedly known from the records. Hence, the suit is barred by limitation.
d) The plaintiff has played mischief and mentioned Yamlur village in the pleadings and while giving the description of the property in the schedule, the plaintiff has changed it to Gunjur village and had obtained an order, and sued only the 1st defendant by not producing 15 OS.No.551/2001 the documents of title. Though the plaintiff claims that he is the absolute owner of the suit property, the plaintiff has not made him as a necessary and proper party.
e) During the year 1996 itself, the plaintiff has pleaded in para 3 of the plaint that a sale deed has been executed and registered in favour of the 1 st defendant which proves beyond any paralance that the suit cannot be initiated only against the purchaser leaving out the seller if at all the plaintiff's property has been sold by him, he ought to have been made a party then itself.
f) The plaintiff cannot maintain a mere bare injunction suit that too only against the purchaser who is in possession and enjoyment of the suit property and therefore, the limitation to sue him reckons from the day the plaintiff has come to know about the alleged sale deed. Hence, after lapse of 14 years, the plaintiff cannot seek a prayer against him which is absurb and against the settled principles of law.
g) The plaintiff has pleaded cause of action in the suit as 29.12.1995 questioning the sale deed registered on 21.04.1995 by him in favour of the 1 st defendant and the 16 OS.No.551/2001 plaintiff has come to a conclusion that it is a fraudulent transaction etc., therefore, at this length of time, there is neither limitation to maintain a suit for declaration nor the cancellation of the said sale deed.
h) There is no trace of the application for amendment of the prayer seeking to include the prayer for declaration. There is no application at all filed before the Court either in the earlier suit or after the suit was duly made over to be represented before this Court. Hence, the relief of declaration is hopelessly barred by law of limitation and liable to be dismissed for the mischiefs having been practiced by the plaintiff.
i) It is the claim of the plaintiff that he has no right title or interest over the suit property. Therefore, if there were to be so, nothing prevented the plaintiff from making him as a party to the suit in the year 1994-95 itself when the alleged cause of action is pleaded. In the absence of such plea, this Court be pleased to dismiss the suit with exemplary costs.
j) The plaintiff is not the owner of the suit property. The plaintiff does not claim that he is in joint possession 17 OS.No.551/2001 and enjoyment of the suit property as it is not an ancestral property. The plaintiff is claiming the right through the alleged 2nd WILL which the plaintiff has forged, concocted in order to claim unfounded right in the suit property.
k) Therefore, the rule applicable to pay Court Fee under the Revenue outgoings does not arise and the plaintiff has to pay Court Fee on the market value of the property and on the market value of the sale deed executed by him in favour of the 1st defendant and the issues which are decided behind his back are not binding on him and prayed to frame the issues afresh on the said points.
l) The plaintiff has made a tangent prayer without pleading without making him as a necessary and proper party to the suit within the prescribed period of limitation and therefore, the prayer sought by the plaintiff is incapable of being granted under any law.
m) The plaintiff has made a false allegation that their father had executed the 2nd WILL and had bequeathed all his properties solely in favour of the plaintiff.
n) He has sold the suit property vide registered deed of sale dated 21.04.1995 to the 1st defendant having 18 OS.No.551/2001 acquired the same under the 1 st WILL which is a registered document.
o) The plaintiff has fabricated the 2 nd WILL. The plaintiff has made a false statement that consequent to the death of their father and pursuant to the alleged 2 nd WILL, the plaintiff has succeeded to the properties of their father. The plaintiff did not succeed to any of the properties of their father under the alleged 2 nd WILL which is a fabricated document and the allegations that the 1 st WILL was canceled by the alleged 2nd WILL is a false allegation made by the plaintiff.
p) He had transferred the valid title over the suit property vide a registered sale deed in favour of the 1 st defendant.
q) There is no cause of action on 29.12.1994 as pleaded and if the alleged cause of action had arisen, the suit is barred by limitation and since the suit is one without a cause of action, same is liable to be dismissed with costs.
r) There seems to be some mischiefs which the plaintiff has played in the Court even earlier he sought to 19 OS.No.551/2001 be made as a party to the proceedings. Even after the application for impleading him is sought and the plaintiff has also played mischief by overseeing that the Court notice issued by this Court does not reach him.
s) He has learnt that the plaintiff without withdrawing the suit in OS.No.7/1996 filed against the 1 st defendant has filed another suit in OS.No.438/1996 on the file of City Civil Judge, Bengaluru by suppressing the pendency of OS.No.7/1996 on the very same facts in respect of the same property and sought inter alia the same reliefs and declaration as sought in this suit way back in the year 1996 itself, which is impermissible in law.
t) From the records, it is seen that the plaintiff after more than two years having withdrawn the original suit in OS.No.438/1996 has filed an application seeking for restoration of the said case and same came to be dismissed.
u) Once the suit for declaration is dismissed, the plaintiff cannot maintain another suit for declaration that too after lapse of so many years by just making him as a party to the proceedings and that too without seeking a 20 OS.No.551/2001 proper amendment of the pleading in a procedural manner. Thus, the suit is barred by Order II Rule 2. Hence, prayed to dismiss the suit.
8. On the above said pleadings of the parties, my learned predecessor in office has framed following issues on 01.06.2006.
1. Whether the plaintiff proves that he is in possession of suit schedule property?
2. Whether the plaintiff proves the alleged obstruction?
3. Whether plaintiff is entitled for declaration that inspite of defendant having purchased property plaintiff continues to be owner of suit schedule property?
4. Whether plaintiff is entitled for any relief?
5. What Order? What Decree?
and on amendment and impleading of the 2 nd defendant, framed the Additional Issues on 29.05.2010.
1. Whether the plaintiff proves that he is the absolute owner of the suit property by virtue of the registered WILL dated 21.12.1983?
2. Whether plaintiff proves execution of said WILL dated 21.12.1983?
21 OS.No.551/2001
3. Whether defendant-2 proves that the WILL dated 21.12.1983 is fabricated?
4. Whether plaintiff proves that sale deed executed in favour of defendant-1 by defendant-2 is not binding upon him?
5. Whether suit is barred by limitation?
6. Whether suit is barred under provisions of Order II Rule 2 CPC?
7. Whether suit is not properly valued and court fee paid is insufficient?
9. To prove the above said issues and to substantiate their respective cases, on behalf of plaintiff, he himself has entered into the witness box as PW-1. Got examined two witnesses by name Sri.H.Narayanappa and Sri.R.Srinivas respectively as PWs-2 and 3. Got exhibited 34 documents (in the evidence of PW-2, 5 documents were given number as CWs-1 to 5 by the court commissioner, which were renumbered by the Court as Ex.P-27 to 31) and closed his side.
a) Per contra, in support of defence, the 1 st defendant himself has stepped into the witness box as DW-1. Got exhibited 25 documents (in the cross examination of PW-1, 22 OS.No.551/2001 the first 7 documents i.e., Ex.D-1 to 7 and in his chief evidence, Ex.D-8 to 25) and closed his side.
b) On behalf of the deceased 2 nd defendant, his LRs i.e., D-2(c) and D-2(e) themselves entered into the witness box as DWs-2 and 3 respectively. Got exhibited no documents and closed their side.
10. Heard the respective counsels for all the parties on merits.
a) In addition, the respective counsels for the 1 st defendant and the LRs of the 2 nd defendant have filed their written arguments as well.
b) In support of his oral arguments, the counsel for the plaintiff has produced the xerox copies/the online printouts of the decisions reported in;
1) AIR 1997 Himachal Pradesh 43 in Shakuntala Devi Vs Savitri Devi & Ors.
2) AIR 1999 Madras 149 in A.Ramesh Vs A.Manohar Prasad & Ors.
3) AIR 1988 Delhi 73 in Ram Lal Vs Hari Krishna.
4) AIR 2007 (NOC) 235 (KER) in Elsy & Ors. Vs V.K.Raju & Ors.
23 OS.No.551/2001
c) The counsel for the 1 st defendant has produced the xerox copies/the online printouts of the decisions reported in;
1) AIR 2008 SC 2033 in Anathula Sudhakar Vs Buchi Reddy by his LRs.
2) AIR 2015 SC 3364 in L.C.Hanumanthappa by his LRs. Vs. H.B.Shivakumar.
3) ILR 1989 KAR 993 in Dada Jinappa Khot Vs. Shivalingappa Ganapathi Bellanki.
4) AIR 2006 SC 3608 in Prem Singh and Others Vs. Birbal and others.
5) Civil Appeal No.9519/2019 dated 09.07.2020 in Bahiben Vs. Arvindbhai Kalyanji Bhanusali by their LRs.
6) RSA.No.1077/2006 Kalburgi Bench in Alisab by his LRs. Vs. Late Tukaram Sidharam Kathave by his LRs.
7) AIR 2020 SC 395 in Varimi Pullarao Vs. Vermari Vyankata Radharani.
8) Civil Appeal No.6076/2009 dated 24.04.2020 in Shivakumar and Others Vs. Sharanabasappa.
d) The counsel for the LRs of the 2 nd defendant has produced the xerox copies/the online printouts of the decisions reported in;
1) Original Petition No.545 of 2010 by Madras High Court in P.Sasikala Vs. Smt.Chandra.
2) (2010) 5 Supreme Court Cases 770 in Balathandayutham and another Vs. Ezhilarasan. 24 OS.No.551/2001
3) (2009) 4 Supreme Court Cases 780 in Yumnam Ongbi Tampha Ibema Devi Vs. Yumnam Joykumar Singh and others.
4) 1965 AIR 354 in Ramachandra Rambux Vs. Champabai and others.
5) ILR 2007 KAR 1484 in W.E.Sambandam Vs. W.E.Sathyanarayanam and others.
6) ILR 2002 KAR 2750 in C.N.Nagendra Singh Vs. The Special Deputy Commissioner.
7) 2018(1) KCCR 72 in Sangappa Vs. Hanamanthappa and another.
8) RSA.No.124/2007 in Sri.Maranna Since deceased by his LRs. Vs. Sri.Thippe Rangappa dated 25.01.2017 by the Hon'ble High Court of Karnataka.
9) (2005) 5 Supreme Court Cases 548 in N.V.Srinivasa Murthy and others Vs. Mariyamma (Dead) by Proposed LRs. and others.
10) (1996) 8 Supreme Court Cases 367 in Tarlok Singh Vs. Vijay Kumar Sabharwal.
11) (2001) 6 Supreme Court Cases 163 in Vishwambhar and others Vs. Laxminarayan (Dead) through LRs. and another.
12) (2010) 14 Supreme Court Cases 596 in Van Vibhag Karmachari Griha Nirman Sahkari Sanstha Maryadit (Registered) Vs. Ramesh Chander and others.
13) (2016) 1 Supreme Court Cases 332 in L.C.Hanumanthappa (Since Dead) Represented by his Legal Representatives Vs. H.B.Shivakumar. 25 OS.No.551/2001
14) (2011) 9 Supreme Court Cases 126 in Khatri Hotels Private Limited and another Vs. Union of India and another.
15) ILR 2019 KAR 4739 in M/S Durga Projects and Infrastructure Pvt. Ltd. Vs. Sri.S.Rajagopala Reddy & others.
16) AIR 1981 PATNA 219 in Bilat Das and others Vs. Babuji Das.
17) (1995) 1 Supreme Court Cases 198 in Ramti Devi (Smt.) Vs. Union of India.
e) This Court has carefully gone through the above noted decisions on which the respective counsels for all the parties have relied on and perused the record.
11. The findings of this Court on the above issues and the additional issues are answered in the;
1. Issues Nos.1 to 4: Negative Additional Issues
1. Nos.1, 2 and 4 : Negative
2. Nos.3, 5 and 6 : Affirmative
3. No.7 : Does not survive for consideration
2. Issue No.5 : As per the final order for the following reasons.
REASONS
12. Before taking the above noted issues and the additional issues for consideration, it is necessary to note 26 OS.No.551/2001 the admitted facts, the facts not in dispute and the facts evident on record for better appreciation of the facts and the evidence on record with regard to the concerned issues and the additional issues.
13. The admitted facts of the case are;
a) The plaintiff is the younger brother and the 2 nd defendant is the elder brother.
b) The suit property is the self acquired property of the father of the plaintiff and the 2 nd defendant by name Sri.Kondamuniyappa who had purchased the same vide the registered sale deed dated 26.10.1968. The certified copy of the said sale deed is at Ex.P-1.
c) Sri.Kondamuniyappa had executed the 1 st WILL on 22.06.1983 bequeathing the properties amongst the plaintiff and the 2nd defendant wherein out of the suit property i.e., 1 acre 20 guntas, 1 acre was given to the plaintiff and the remaining 20 guntas was given to the 2 nd defendant. The said original WILL is on record at Ex.P-3.
d) Sri.Kondamuniyappa died on 10.09.1994. The certified copy of the Death Certificate is on record at Ex.P-
2. 27 OS.No.551/2001
e) The wife of Sri.Kondamuniyappa i.e., the mother of the plaintiff and the 2nd defendant by name Smt.Narasamma predeceased her husband i.e., died on 14.02.1982.
14. The facts not in dispute of the case are; A. With regard to OS.No.7/1996.
a) The 2nd defendant has sold the above 20 guntas to the 1st defendant vide registered sale deed dated 21.04.1995. The certified copy of the said sale deed is at Ex.P-7 and the original is at Ex.D-8.
b) The plaintiff has initially filed this suit for bare injunction against the 1st defendant alone on the file of II Munsiff, Bengaluru on 03.01.1996 which was registered as OS.No.7/1996.
c) On 24.02.1996, the 1st defendant appeared through his counsel and on 06.04.1996, he has moved IA.No.2 under Section 16 read with Section 151 of CPC seeking rejection of the plaint on the ground of pecuniary jurisdiction. The certified copy of the said IA and the accompanying affidavit are on record at Ex.D-14. 28 OS.No.551/2001
d) The plaintiff did not file any objections to the said IA and in the mean while, the above suit, came to be decreed on 21.12.1996.
e) The 1st defendant has challenged the above decree in RA.No.21/1997 which came to be allowed on 09.11.1998 and the matter was remanded back. The certified copy of the judgment and decree passed in the above regular appeal are respectively at Ex.P-8 and 9.
f) On remand, the plaintiff has moved application dated 12.10.1999 under Order VII Rule 10 read with Section 151 of CPC (filed before the Court on 19.11.1999) for return of the plaint. The certified copy of the said application is on record at Ex.D-16.
g) The above application was resisted by the 1 st defendant by filing his objections on 21.01.2000. The certified copy of the said objections is on record at Ex.D-
17.
h) On consideration of the above application and the objections thereto, the said application came to be allowed on 05.01.2001.
29 OS.No.551/2001
i) On return of the plaint, the same was presented before City Civil Court on 18.01.2001 which was registered as OS.No.551/2001 and made over to CCH-19 and later, transferred to this Court vide Notification No.ADM-1(A) 206/2019.
B. With regard to OS.No.438/1996.
a) In the meanwhile, i.e., during the pendency of OS.No.7/1996, on 18.01.1996, i.e., even before the 1 st defendant put his appearance in OS.No.7/1996 on 24.02.1996 which was filed on 03.01.1996, the plaintiff has moved OS.No.438/1996 against both the defendants i.e., his elder brother Sri.Muniswamy/the 2 nd defendant in this suit and the purchaser i.e., the 1st defendant in this suit for the relief of declaration that;
i) He/the plaintiff is the absolute owner in possession of the suit property.
ii) The sale deed dated 21.04.1995 executed by his elder brother Sri.Muniswamy/the 2 nd defendant herein in favour of the 1st defendant herein in respect of 20 guntas of land i.e., Ex.D-8/Ex.P-7 does not binds his title and interest over the suit property and for the permanent 30 OS.No.551/2001 injunction. The certified copies of the plaint and the valuation slip in the above suit i.e., OS.No.438/1996 together are on record at Ex.D-2 and D-7.
b) The plaint averments in both the suits i.e., OS.No.438/1996 and OS.No.7/1996 which was later got amended and also got impleaded the 2 nd defendant are similar in respect of;
i) The case of the plaintiff.
ii) The cause of action to the suits.
iii) The suit property as well.
c) The plaintiff has moved a memo on 01.04.1997 i.e., after OS.No.7/1996 came to be decreed on 21.12.1996 and before RA.No.21/1997 came to be allowed on 09.11.1998 seeking dismissal of the above suit on the ground that "he is not desirous to prosecute the case". The certified copy of the said Memo is at Ex.P-11. The said Memo came to be allowed on the same date and the said suit i.e., OS.No.438/1996 is dismissed as withdrawn. The certified copy of the order sheet in the above suit is at Ex.P-10.
d) Thereafter, i.e., on 22.11.1999, i.e., just 3 days after, filing the application for return of plaint in 31 OS.No.551/2001 OS.No.7/1996 on 19.11.1999 which was adjourned for objections to the said application and before the 1 st defendant files his objections to the said application for return of plaint on 21.01.2000, the plaintiff has moved two applications i.e.,
i) One under Section 151 of CPC seeking recall of the order dated 01.04.1997 i.e., order on memo of withdrawal and dismissing the suit as withdrawn.
ii) Another under Section 5 of the Limitation Act seeking condonation of delay in filing the above first application for recall of the order dated 01.04.1997.
e) The above two applications were seriously contested by the defendants and those applications came to be dismissed by order dated 10.11.2000 with costs of Rs.500/- to the 1st defendant herein. The certified copy of the said order is on record at Ex.D-12.
f) The plaintiff did not challenge the above order dated 10.01.2000 at Ex.D-12 and thus, it has attained finality.
32 OS.No.551/2001
15. The facts evident on record of the case are;
a) The plaintiff has moved an application dated
-.06.1999 under Order VI Rule 17 read with Section 151 of CPC (filed on 25.06.1999) in OS.No.7/1996 seeking amendment of the plaint i.e., to substitute the name of the village in the plaint schedule as "YEMLUR" in the place of "GUNJUR". The certified copy of the said application is on record at Ex.D-15.
b) The 1st defendant has filed objections to the above application on 04.08.1999. The certified copy of the said objections is on record at Ex.D-18.
c) On registration of the present suit as OS.No.551/2001 on 18.01.2001, the plaintiff has moved an application under Order I Rule 10 read with Section 151 of CPC seeking permission to implead the 2 nd defendant and it is numbered as IA.No.2 and the same came to be dismissed on 05.01.2007 observing that the suit being for permanent injunction as on that date alleging the interference of the 1st defendant and no allegation against the 2nd defendant, the 2nd defendant is not a necessary party.
33 OS.No.551/2001
d) Again, the plaintiff has filed IA.No.5 under the same provision seeking the similar relief. The Court ordered notice on IA.No.5 to the 2 nd defendant who did not appear and the application came to be allowed on 22.09.2008 on the grounds that;
i) By way of amendment, the relief of declaration for cancellation of the sale deed executed by the proposed defendant/the 2nd defendant in favour of the defendant/the 1st defendant (the prayer is admittedly for declaration that the sale deed is not binding on the plaintiff) was introduced.
ii) The plaintiff claiming right over the suit property based on the 2nd WILL and the 2nd defendant has sold the property to the 1st defendant on the strength of the 1 st WILL and thus, the 2nd defendant is a necessary party to the suit. Consequently, the 2 nd defendant was impleaded and thereafter, he put his appearance and filed his written statement.
e) It is in the order sheet dated 18.01.2001 that;
"Heard the counsel for plt on IA.No.1 U/O VI Rule 17 of CPC. The plaint returned by Civil Judge (Sr. D) 34 OS.No.551/2001 B'lore Rural, has been presented before PCCJ of City Civil Court & the matter is assigned to this Court. It appears that IA.No.1 was moved by plt. U/O VI Rule 17 of CPC to correct the limits in which the suit property is said to have been situated and the proposed amendment of the village was outside jurisdiction of Civil Judge, B'lore Rural and falls within the Jurisdiction of City Civil Court. However before return of plaint, the amendment was not allowed. Hence, the IA No.1 U/O VI Rule 17 CPC is allowed and plaintiff is permitted to amend pleadings to describe the situation of property in the limits of Yemalur Village of Varthur Hobli.
Plaintiff shall carry out amendment and file amended plaint.
It is seen IA.No.II also filed U/O 1 Rule 10 of CPC to implead the proposed party as deft. No.2. Issue suit summons to defendant, notice on IA.No.I to proposed deft named therein on plf depositing required PF & amended plaint copies. R/by 09.03.2001 ....."
f) The above amendment is prima facie the amendment sought in the application dated -.6.1999 filed on 25.06.1999 by the plaintiff in OS.No.7/1996 at Ex.D-
15. 35 OS.No.551/2001
g) The original plaint demonstrates that the amendment carried out to the plaint is not only the above amendment i.e., name of the Village in the plaint schedule, but also insertion of para No.3(a) and 4 th relief to the relief column to the effect that;
"3(a) It is submitted that said Munishamappa who is the brother of the plaintiff being fully aware of the fact that Will dated 7.7.1983 was canceled and another Will was executed by late Kondamuniyappa on 21.12.1983 has deliberately sold an extent of 20 guntas of land in favour of P.Ramachandra Reddy under a Registered Sale Deed dated 21.04.1995. Hence, the said Sale deed is not binding on the plaintiff and therefore, sought for declaration that declaring the said sale deed executed by Munishamappa who is the brother of the plaintiff in favour of P.Ramachandra Reddy is not binding on plaintiff and for consequential relief of permanent injunction.
(iv) Declare that the sale deed executed by Munishamappa the brother of the plaintiff in favour of P.Ramachandrareddy dated 21-4-1995 in respect of 20 guntas of land in Survey No.3/1 of Yamlur village, Varthur Hobli, Bangalore South Taluk, is not binding on the plaintiff."36 OS.No.551/2001
i.e., the amendments sought by the plaintiff in the application dated 18.01.2001 he has filed on re-presenting of the plaint before the City Civil Court on 18.01.2001 i.e., Ex.C-1.
h) There is no mention in the order sheet with regard to;
i) service of the copy of the said application at Ex.C-1 on either of the defendants in particular, the then sole defendant on record i.e., the 1st defendant.
ii) calling his objections to the said application or taking the objections as not filed and also
iii) any order allowing the said application at Ex.C-1. Hence, prima facie it appears that the said amendment on record is without an order of the Court.
16. In the back ground of the above noted admitted facts, the facts not in dispute and the facts evident on record, if the issues and the additional issues are taken note off, it is clear that the issue be taken for consideration first is the additional issue No.5 on limitation.
17. Before venturing to the above issue, it is necessary to go through the comprehensive judgment of 37 OS.No.551/2001 the Hon'ble Apex Court with regard to 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 i.e., Anathula Sudhakar's case which is also relied on by the counsels for the 1st defendant and the LRs of the 2nd defendant and the said decision is followed by the Hon'ble Apex Court recently in Ratnagiri Nagar Parishad's case for the proper appreciation of the facts of the case on hand.
a) AIR 2008 SC 2033 (between Anathula Sudhakar V. P.Buchi Reddy (Dead) by Lrs. and Others in Appeal (Civil) No.6191 of 2001 decided on 25.03.2008 before their Lordships R.Raveendran and P.Sathasivam JJ.) wherein the Hon'ble Apex Court has observed that;
"......
10. On the contentions urged, the following questions arise for our consideration in this appeal:
(i) What is the scope of a suit for prohibitory injunction relating to immovable property?
ii) Whether on facts, plaintiffs ought to have filed a suit for declaration of title and injunction?
(iii) Whether .....38 OS.No.551/2001
11. 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.
11.1) 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.
11.2) 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.
11.3) 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 defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to 39 OS.No.551/2001 establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.
12. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A could is said to raise over a person's title when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action of declaration is the remedy to remove the cloud on the title of the property. .....Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, file a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raised a serious dispute or cloud over the plaintiff's title, then there is a need for the plaintiff to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the Court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title.
.....
40 OS.No.551/2001
14. But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This mean that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the Court may venture a decision on the issue to title, so as to decide the question of de jure possession even though the suit is for a mere injunction. But where the issue of title involved complicate or complex question of fact and law, or where Court feels that parties had not proceeded on the basis ot the title was at issue, the Court should not decide the issue of title in a suit for injunction. The proper course is to relegate the plaintiff to the remedy of a full fledged suit for declaration and consequential reliefs.
.......
17. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under
(a) Where a cloud is raised over plaintiff's title and he does not have 41 OS.No.551/2001 possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiffs' 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 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 findings on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in case of vacant site, the issue of title may directly and substantially arise for consideration as without a finding thereon, it will not 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 issues regarding title (either specific, or implied as noticed in Annaimuthu Theva (supra). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the Court will 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 question 42 OS.No.551/2001 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 to which parties lead evidence, if the matter involved is simple and straight-
forward, 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 a suit 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 wrongly 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 plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.
....."
b) The judgment of the Hon'ble Supreme Court in Appeal (Civil) No.8241 of 2009 (between Jharkhand State Housing Board V. Didar Sing & Another decided on 43 OS.No.551/2001 09.10.2018 before his Lordship N.V.Ramana J.) wherein the Hon'ble Apex Court has observed that;
"......
2. Brief facts in ...... suit for permanent injunction alleging that suit schedule property ......
3. The defendant has filed the written statement contending that the plaintiff vendor has no legal right and title over the suit schedule property and the sale deed executed by his vendor will not confer any right or title to the plaintiff. ......
........
10. The issue that fall for our consideration is: Whether the suit for permanent injunction is maintainable when the defendant disputes the title to the plaintiff?
11. It is well settled by catena of Judgments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and when he raised a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction.
...."
44 OS.No.551/2001
c) The judgment of the Hon'ble Supreme Court (in Civil Appeal No.2412/2020 arising out of SLP (C) No.18417/2017 between Ratnagiri Nagar Parishad Versus Gangaram Narayan Ambekar & Others decided on 06.05.2020 before their Lordships A.M.Khanwilkar and Dinesh Maheshwari JJ.) wherein the Hon'ble Apex Court has observed that;
".........
14. Arguendo, the plaint as filed by the respondents Nos.1 to 19 ...... We may also refer to Anathul Sudhar vs. P.Bachi Reddy (D) by LRs. & Ors, wherein this Court opined that where the averments regarding title are mentioned in the plaint but if the matter involved complicated question of fact and law relating title, the Court will relegate the parties to the remedy of a comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
15. Applying the principle underlying these dicta, as no declaration has been sought by the plaintiffs in the present case, the suit for simpliciter permanent injunction could not be proceeded further at all. .....
...."
18. Keeping in mind the general principles laid down in the above citations as to, when a mere suit for 45 OS.No.551/2001 permanent injunction will lie and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, let this Court to consider the additional Issue No.5 first.
19. ADDITIONAL ISSUE No.5:- The plaint averment at para No.6 says that the cause of action for the suit arose on 29.12.1995 i.e., the date on which the defendant (i.e., the 1st defendant) tried to trespass upon the suit property.
20. As noted above, the plaintiff has initially filed this suit in OS.No.7/1996 only against the 1 st defendant on the file of the II Munsiff, Bengaluru for the permanent injunction and later got returned the plaint and represented the same before the City Civil Court, Bengaluru which is registered in this suit i.e., OS.No.551/2001.
21. There are totally two amendment applications filed by the plaintiff i.e.;
a) One before the II Munsiff in OS.No.7/1996 on 19.11.1999 seeking substitution of Village name in the plaint schedule i.e., YEMLUR in the place of GUNJUR i.e. the application at Ex.D-15 and 46 OS.No.551/2001
b) Another before CCH-XIX on 18.01.2001 seeking insertion of para No.3(a) with the aversions that the 2 nd defendant has deliberately sold 20 guntas of land in the suit property to the 1st defendant vide registered sale deed dated 21.04.1995 on the guise of the 1 st WILL which is not binding on him and insertion of para No.(iv) to the relief column seeking declaration that the above sale deed is not binding on him i.e. the application at Ex.C-1.
22. As observed above, it is on record that the only application came to be allowed is the above first application at Ex.D-15 seeking substitution of the village name in the plaint schedule and there is no order passed till date with regard to the application at Ex.C-1 seeking insertion of para No.3(a) and relief No.(iv).
23. Since the record reveals that later the parties contested the matter on merits keeping in mind the amended pleading i.e., para No.3(a) and relief No.(iv) of the plaint as well, even for the sake of arguments, those amendments are accepted, then also admittedly, there is no amendment in respect of the cause of action either sought in the amendment application dated 18.01.2001 at 47 OS.No.551/2001 Ex.C-1 or carried out in the plaint along with the other amendments.
24. Thus, the cause of action remained in the plaint is the cause of action stated in the original plaint in OS.No.7/1996 i.e., on 29.12.1995 i.e., the date on which the defendant (i.e., the 1st defendant) tried to trespass upon the suit property and there is no cause of action at all stated against the 2nd defendant and also with regard to the relief of declaration.
25. Even after impleading the 2 nd defendant to the suit by virtue of order on IA.No.5 dated 22.09.2008, no application is filed seeking insertion of cause of action against the 2nd defendant and for the relief of declaration.
26. Moreover, even for the sake of arguments, if the pleadings at para No.3(a) i.e., the 2 nd defendant has deliberately sold 20 guntas of land in the suit property to the 1st defendant vide registered sale deed dated 21.04.1995 on the guise of the 1st WILL which is not binding on him are taken note off with regard to the cause of action to the suit against the 2 nd defendant and the (iv) relief of declaration, then the cause of action would arose 48 OS.No.551/2001 on 21.04.1995 as there is no pleading with regard to the date of knowledge of the said sale deed.
27. However, at this stage, it is pertinent to note that in para No.3 of the plaint, it is stated that upon the 1 st defendant trying to disturb his possession on the sale deed dated 21.04.1995 at Ex.D-8, immediately, the plaintiff has approached the police on 29.12.1995.
28. The certified copy of the said complaint is on record at Ex.P-6 wherein in para No.5, it is stated that on 27.12.1995, he/the plaintiff came to know from third parties that the 2nd defendant has sold 20 guntas of land out of 1 acre 19 guntas in favour of the 1 st defendant vide registered sale deed dated 21.04.1995. So, the date of knowledge about the sale deed dated 21.04.1995 at Ex.D-8 in favour of the 1st defendant is 27.12.1995.
29. So, it is clear that as on 27.12.1995 itself, the plaintiff came to know about the sale deed at Ex.D-8 in favour of the 1st defendant in respect of 20 guntas of land in the suit property which was admittedly executed by the 2nd defendant and as per the plaint averments, the 1 st defendant interfered with the possession of the plaintiff on 49 OS.No.551/2001 29.12.1995 on the guise of the sale deed at Ex.D-8 and on the same day, he has lodged the police complaint at Ex.P-6.
30. Hence, the plaintiff was well known on the above dates themselves that his title over the entire suit property was being disputed by the defendants by virtue of the sale deed at Ex.D-8 and thus, there was cloud on his title over the entire suit property and thus, in view of the principles rendered in the above noted decisions, he was required to file the suit for declaration and consequential relief of injunction against both the defendants. But, strangely, he has filed suit on 03.01.1996 against the 1st defendant alone in OS.No.7/1996 for the relief of bare injunction that too before a wrong Court with the wrong village name.
31. There is no quarrel between the parties that the relief of declaration sought in this suit for the purpose of limitation falls under Article 58 of the Indian Limitation Act which prescribes the limitation as, "3 years from the date on which the right to sue first accrues". In the present case on hand, as noted above, it is on 27.12.1995 and thus, the limitation expires on 26.12.1998. 50 OS.No.551/2001
32. It is the arguments of the counsel for the plaintiff that it is settled principle of law that the amendment of the pleadings relates back to the date of suit. To overcome the above arguments and in support of their arguments that the suit is hit by limitation, the respective counsels for both the 1st defendant and the LRs of the 2 nd defendant have relied on the decision reported in, (2016) 1 Supreme Court Cases 332 = AIR 2015 SC 3364 (between L.C.Hanumanthappa (Since Dead) by his LRs. Vs. H.B.Shivakumar in Civil Appeal No.6595 of 2015 arising out of SLP (Civil) No.15513 of 2015 decided on 26 August, 2015 before their Lordships A.K.Sikri, Rohinton Fali Nariman JJ.) wherein they have relied on the observations of the Hon'ble Apex Court that;
"A. Civil Procedure Code, 1908 - Or. 6 R.17 - Amendment in plaint - Further relief added by way of amendment - If barred by limitation on date of grant of amendment - Determination of - Doctrine of relation back i.e. relating back the amendment to the date when the suit was originally filed - Applicability of -
governing principles as to,
summarized.
51 OS.No.551/2001
- Appellant filing as suit on 9-3- 1990 for permanent injunction against respondent-defendant - ....
- In original written statement filed on 16-5-1990 defendant had clearly denied plaintiff's title to suit property - thus, in view thereof, held, right to sue for declaration of title first arose on 16-5-1990 - In this way, period of limitation of 3 years for filing suit for declaration of title, as provided under Art. 58, Limitation Act, 1963, continued from 16-5-1990 till 15-5- 1993 - Hence, relief as to declaration of title added by amendment in 2002, was barred by limitation - Suit rightly dismissed by High Court on ground of limitation.
- As regard applicability of doctrine of relation back to present amendment, held, said doctrine is not applicable to present case for reason that the court which allowed the amendment expressly allowed it subject to the plea of limitation, indicating thereby that there were no special or extraordinary circumstances in instant case warranting application of doctrine of relation back whereby a legal right that had accrued (on ground of limitation) in favour of defendant should be taken away.
- Doctrines and Maxims -
Relation back - Applicability of, in case of amendment in pleadings - Limitation Act, 1963 - Ss. 3, 5, and Art. 58 Property Law - Ownership and Title - Right to sue for declaration of 52 OS.No.551/2001 Specific Relief Act, 1963, Ss. 34 and 35 B. Limitation Act, 1963 - Art. 58
- Suit for declaration or amendment of pleadings to incorporate relief of declaration - Commencement of limitation period - Change in statutory language as contained in Art.120 of 1908 Act which provided that limitation would commence when "right to sue accrues" while Art. 58 vide 1963 Act providing there for when "right to sue first accrues" - Incorporation of word "first" - Impact of, reiterated.
.........
11. Learned counsel for the appellant has argued that once an amendment to the plaint is allowed, it necessarily relates back to the date on which the plaint was originally filed, and since the amendment was allowed in the present case by the judgment dated 28th March, 2002, the said amendment related back to 9th March, 1990 when the suit was originally filed. He further argued that the suit was based on title, and the title of the plaintiff was admitted in paragraph 2 of the original written statement, as was held by the trial court it its judgment dated 16th April, 2009. He therefore, submitted that the impugned judgment ought to be set aside. However, he did not press the plea of continuing wrong on the facts of the present cases.
....."53 OS.No.551/2001
13. We have heard learned counsel for parties. It is not disputed that Article 58 of the Limitation Act would apply to the amended plaint inasmuch as it sought to add the relief of declaration of title to the already existing relief for grant of permanent injunction. In Khatri Hotels Private Limited & Anr. V. Union of India & Anr., (2011) 9 SCC 126, this Court while construing Article 58 of the Limitation Act held as follows:
Article 58 of the Schedule to the 1963 Act, which has a bearing on the decision of this appeal, reads as under:
THE SCHEDULE Period of Limitation (See Section 2(j) and 3) First Division - Suits Description of suit Period of Time from which period limitation begins to run .... Part III - Suits Relating To Declarations ...
58 To obtain any other Three Years When the right to sue first accrues.
declaration.
.....
14. Given this statement of the law, it is clear that the present amendment of the plaint is indeed time-barred in that the right to sue for declaration of title first arose on 16 th May, 1990 when in the very first written statement of the defendant had pleaded, in para 13 in particular, that the suit for injunction simpliciter is not maintainable in that the plaintiff had failed to establish title with 54 OS.No.551/2001 possession over the suit property. The only question that remains to be answered is in relation to the doctrine of relation back insofar as it applies to amendment made under Order VI Rule 17 of the Code of Civil Procedure.
.....
23. Similarly, in Vishwambhar & Ors. V. Laxminaryan (Dead) through LRs & Anr., (2001) 6 SCC 163, in a suit originally filed for recovery of possession, an amendment was sought to be made after the limitation period had expired, for a prayer of declaration that certain sale deeds be set aside. This was repelled by this Court as follows:-
...... As noted earlier in the plaint as it stood before the amendment that prayer for setting aside the sale deeds was not there, such a prayer appears to have been introduced by amendment during hearing of the suit and the trial court considered the amendment prayer and decided the suit on that basis. If in law the plaintiffs were required to have the sale deeds set aside before making any claim in respect of the properties sold, then a suit without such a prayer was of no avail to the plaintiffs. In all probability, realizing this difficulty, the plaintiffs filed the application for amendment of the plaint seeking to introduce the prayer for setting side the sale deeds. Unfortunately, the realization came too late. ...... By introducing the prayer of setting aside the sale deed the basis of the suit was 55 OS.No.551/2001 changed to one seeking setting aside the alienations of the property by the guardian. In such circumstance, the suit for setting aside the transfer could be taken to have been filed on the date of the amendment of the plaint was allowed and not earlier than that. (at paras 9 and 10).
........
27. In Van Vibhag Karmachari Griha Nirman Sahakari Sansthat Maryadit (Registered) v. Ramesh Chander and Ors., (2010) 14 SCC 596, this Court considered a suit which was originally filed for declaration of ownership of land and for permanent injunction. The suit had been filed on 11th February, 1991. An amendment application was moved under Order VI Rule 17 CPC of the Code of Civil Procedure, on 16th December, 2002, for inclusion of the relief of specific performance of contract. This Court in no uncertain terms refused the mainstream change made in the suit, and held:- In the present case, the factual situation is totally different and the appellants have not filed any suit for specific performance against the first respondent with the period of limitation, In this context, the provision of Article 54 of the Limitation Act is very relevant. The period of limitation prescribed in Article 54 for filing a suit for specific performance is three years ........
.........
Even through the prayer for amendment to include the relief of 56 OS.No.551/2001 specific performance was made about 11 years after the filing of the suit, and the same was allowed after 12 years of filing the suit, such an amendment in the facts of the case cannot relate back to the date of filing of the original pliant, in view of the clear bar under Article 54 of the Limitation Act. Here in this cases ....
.........
29. Applying the law thus laid down by this Court to the facts of this case, ..... There can be no doubt that on an application of Khatri Hotels Private Limited (supra), the right to sue for declaration of title first arose on the facts of the present case on 16 th May, 1990 when the original written statement clearly denied the plaintiffs' title. By 165th May, 1993 therefore a suit based on declaration of title would have become time-barred. It is clear that the doctrine of relation back would not apply to the facts of this case for the reasons that the court which allowed the amendment expressly allowed it subject to the plea of limitation, indicating thereby that there are no special or extraordinary circumstances in the present case to warrant the doctrine of relation back applying so that a legal right that had accrued in favour of the defendant should be taken away. ....
33. The counsel for the LRs of the 2 nd defendant has also drawn the attention of this Court to the decisions 57 OS.No.551/2001 explained and applied in the above case i.e., the cases of Vishwambar, Van Vibhag Karmachari Griha Nirman Sahkari Sanstha and Khatri Hotels Private Limited respectively reported in;
a) (2001) 6 Supreme Court Cases 163 (between Vishwambhar and Others Versus Laxminarayan (Dead) through LRs and Another in Civil Appeal No.554 of 1998 from the judgment and order dated 16-9-1997 of the Bombay High Court in Second Appeal No.359 of 1996 decided on July 20, 2001 before their Lordships D.P.Mohapatra and Doraiswamy Raju, JJ.) to the observations of the Hon'ble Apex Court that;
"....
B. Civil Procedure Code, 1908 - Or. 6 R. 17 - Amendment of plaint - Effect on limitation vis-à-vis the original plaint - Held, amendment through properly made cannot relate back to the date of filing of the suit and cure the defect of limitation - Where the amendment changed the basis of the suit itself, the suit would be taken to have been filed on the date of the amendment for the purposes of limitation.
...."58 OS.No.551/2001
b) (2010) 14 Supreme Court Cases 596 (between Van Vibhag Karmachari Griha Nirman Sahkari Sanstha Maryadit (Registered) Versus Ramesh Chander and Others in Civil Appeal No.8982 of 2010 arising out of SLP (C) No.1518 of 2008 from the judgment and order dated 10-8- 2007 of the High Court of Madhya Pradesh at Indore in First Appeal No.142 of 2005 decided on October 19, 2010 before their Lordships G.S.Singvi and A.K.Ganguly, JJ.) wherein he has drawn the attention of this Court to the observations of the Hon'ble Apex Court that;
"A. Contract and Specific Relief
- Specific Performance of Contract - Defence respecting suits for relief based on contract -
Limitation/Delay/Laches - Omission to file suit for specific performance - Subsequently seeking said relief 11 years after cause of action arose (which was beyond limitation period) by way of amending plaint -
Impermissibility - Civil Procedure Code, 1908 - Or. 2 R. 2 and Or. 6 R. 17 - Limitation Act, 1963 - S.14 and Art. 54 - Urban Land (Ceiling and Regulation) Act, 1976 - S.20 - Specific Relief Act, 1963, SS.9, 2- and 34 The first respondent-defendant executed an agreement for sale in favour of the appellant-plaintiff in 1976 to sell the suit properties. In 59 OS.No.551/2001 1991 the first respondent-defendant issued a public notice and claimed that the appellant-plaintiff had no rights over the suit properties. The appellant-plaintiff filed suit for declaration in 1991 that it was the owner of the suit properties. In 2002 the appellant-plaintiff moved an application for amendment of plaint so as to include relief for specific performance. Permission was granted and plaint was returned to the appellant-plaintiff to submit it before the jurisdictional trial Court. The appellant-plaintiff raised a plea that it had sought relief of specific performance in 1991 as no exemption under Section 20, Urban Land Ceiling Act had been obtained so its suit was not barred by limitation. The trial Court dismissed the suit. The High Court too dismissed the appeal of the appellant -plaintiff.
Held:
Refusal of the first respondent in 1991, through public notice, to acknowledge rights of the appellant- plaintiff over the suit property furnished the cause of action in favour of the appellant-plaintiff to file suit for specific performance. The appellant- plaintiff ought to have filed suit within the period of limitation. The contention that the suit for specific performance was barred by Section 20, Urban Land Ceiling Act is not tenable. The appellant-plaintiff could have filed suit for specific performance subject to Section 20, Urban Land Ceiling Act and a conditional decree could have 60 OS.No.551/2001 been passed. The appellant-plaintiff omitted to file suit for specific performance in 1991. Now it cannot be allowed to file a suit for specific performance. The suit filed by the appellant-plaintiff is hit by Order 2 Rule 2 CPC. .....
....."
c) (2011) 9 Supreme Court Cases 126 (between Khatri Hotels Private Limited and Another Versus Union of India and Another in Civil Appeal No.7773 of 2011 arising out of SLP (C) No.22126 of 2009 from the judgment and Order dated 21-8-2009 of the High Court of Delhi at New Delhi in RFA No.123 of 2009 decided on September 9, 2011 before their Lordship G.S.Sangvi and H.L.Dattu, JJ.) wherein he has drawn the attention of this Court to the observations of the Hon'ble Apex Court that;
".....
B. Limitation Act, 1963 - Art. 58 and S.5 - Suit for declaration and permanent injunction for restraining interference with possession of immovable property - Art. 58 of 1963 Act vis-à-vis Art.120 of 1908 Act - Relative scope - Cause of action - "When right to sue first accrues" - "First accrues" - Meaning - Successive violation of right will not give rise to fresh cause of action - Limitation Act, 1908, Art. 120 61 OS.No.551/2001 Held:
While enacting Article 58 of the 1963 Act, the legislature has designedly made a departure from the language of Article 120 of the 1908 Act. The word "first" has been used between the words "sue" and "accrued". This would mean that if a suit is based on multiple cause of action, the period of limitation will begin to run from the date when the right to sue first accrues. To put in differently, successive violation of the right will not give rise to fresh cause of the suit will be liable to be dismissed if it is beyond the period of limitation counted from the day when the right to sue first accrued.
..........."
34. In addition, the counsel for LRs of the 2 nd defendant has also relied on the decisions reported in;
a) (1996) 8 Supreme Court Cases 367 (between Tarlok Singh Versus Vijay Kumar Sabharwal in Civil Appeal No.7020 of 1996 from the Judgment and Order dated 06.07.1994 of the Punjab and Haryana High Court in RSA.No.2485 of 1993 decided on March 25, 1996 before their Lordships K.Ramaswamy and G.B.Pattanaik, JJ.) wherein he has drawn the attention of this Court to the observations of the Hon'ble Apex Court that; 62 OS.No.551/2001
"Limitation Act, 1963 - .... Suit for perpetual injunction filed by respondent on 23-12-1987 but application under Or. 6 R. 17 CPC filed by him on 17-7-1989 for converting the suit into one for specific performance of the agreement of sale - Held, respondent's suit barred by limitation.
Held:
Parties had, ... Suit merely for injunction laid on 23-12-1987 would not be of any avail nor the limitation began to run from that date. Suit for perpetual injunction is different from suit for specific performance. The suit for specific performance in fact was claimed by way of amendment application filed under Order 6 Rule 17 CPC on 12-9-1979. It will operate only on the application being ordered.
Since the amendment was ordered on 25-8-1989 the crucial date would be that date on which the amendment was ordered by which date, admittedly, the suit is barred by limitation. ....
6. Shri Prem Malhotra, the learned counsel for the respondent, contended that since the respondent had refused performance the suit must be deemed to have been filed on 23-12-1987 and, therefore, when the amendment was allowed, it would relate back to the date of filing the suit which was filed within three years from the date of the refusal.
Accordingly, the suit is not barred by limitation. ...... The question is: as to 63 OS.No.551/2001 when the limitation began to run? In view of the position .....Suit merely for injunction laid on 23-12-1987 would not be of any avail nor the limitation began to run from performance. The suit for specific performance in fact was claimed by way of amendment application filed under Order 6 Rule 17 CPC on 12-9-1979. It will operate only on the application being ordered. Since the amendment was ordered on 25-8-1989 the crucial date would be the date on which the amendment was ordered by which date, admittedly, the suit is barred by limitation. ....
..."
b) ILR 2019 KAR 4739 (between M/s. Durga Projects and Infrastructure Pvt. Ltd. vs. Sri.S.Rajagopala Reddy and Others in CRP.No.168/2019 c/w etc. decided on 5th day of July, 2019 before his Lordship Sreenivasa Harish Kumar, J.) wherein he has drawn the attention of this Court to the observations of the Hon'ble High Court of Karnataka that;
".....
B) LIMITAION ACT, 1963 -
ARTICLE 58 - Suit for declaration and possession - Limitation is to be reckoned form the first date; the subsequent dates pleaded not extend the period of limitation -
HELD.
64 OS.No.551/2001In para 38 of the pliant it is clearly stated that the cause of action arose on 18.03.2005, 29.03.2007 and
15.l06.2016. 18.03.20005 is the date when the first defendant executed a sale deed in favour of third defendant. That means, the cause of action first arose on 18.03.2005. This is a suit for declaration and possession. Just because possession is claimed, 12 years period of limitation is not available. Unless the sale deeds are set aside the plaintiff's title is declared, they are not entitled to possession. Declaration is the main relief in the circumstances pleaded. Article 58 of the limitation Act is applicable and therefore, the limitation is to be reckoned from the first date; the subsequent dates pleaded do not extend the limitation period.
.....
8. As regards limitation, ...... In the case of KHATRI HOTELS PRIVATE LIMITTED vs. UNION OF INIDA AND ANOTHER, it is held as below.
"30. While enacting Article 58 of the 1963 Act, the legislature has designedly made a departure from the language of Article 120 of the 1908 Act. The word 'first' has been used between the words 'sue' and 'accrued'. This would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. To put it differently, successive violation of the right will not give rise to fresh cause and the 65 OS.No.551/2001 suit will be liable to be dismissed if it is beyond the period of limitation counted from the day when the right to sue first accrued.".
...."
c) AIR 1981 PATNA 219 (between Bilat Das and Others Appellants v. Babuji Das Respondent in AFAD.No.200 of 1975 decided on 20-2-1981 before his Lordship Choudhary Sia Saran Sinha, J.) wherein he has drawn the attention of this Court to the observations of the Hon'ble High Court of Patna that;
"Limitation Act (36 of 1963), Art. 59, Art.113 - Applicability - Sale deed of land executed by plaintiff in favour of defendant on 3-5-1960 with stipulation that consideration was to be paid within one month from execution - Defendant not paying consideration amount and not giving possession to plaintiff - Plaintiff instituting suit on 2-6-1965 for cancelling or setting aside the sale deed and for recover of possession - Cancellation being the main relief, suit is governed by Art. 59 and, hence beyond limitation - Art. 113 is not applicable.
...."
d) (1995) 1 Supreme Court Cases 198 (between Ramti Devi (Smt) Versus Union of India in Civil Appeal No.522 of 1979 from the judgment and order dated 22-2- 66 OS.No.551/2001 1978 of the Delhi High Court in RFA.No.59 of 1978 decided on October 20, 1994 before their Lordships K.Ramaswamy S.P.Barucha and M.K.Mukherjee, JJ.) wherein he has drawn the attention of this Court to the observations of the Hon'ble Apex Court that;
".....
B. Limitation Act, 1963 - Art. 59
- Suit for declaration of ownership and possession of house against a person who had sold the same by a registered deed - Execution and registration of the sale deed having come to the knowledge of the plaintiff on the very date on which the same was executed
- Suit filed more than three years after that date, held, time barred.
...."
35. On the other hand, the counsel for the 1 st defendant has also relied on the decisions reported in;
a) (1989) ILR (Kar) 993 (between Dada Jinappa Khot Appellant Vs. Shivalingappa Ganapati Bellanki Respondent in RSA.No.1042 of 1978 decided on 09.12.1988 before his Lordship Shayamasundar, J.) wherein he has drawn the attention of this Court to the observations of the Hon'ble High Court of Karnataka that;
67 OS.No.551/2001
Limitation Act, 1963 - Section 58
- Right to sue first accrued to the plaintiff - Rise to a compulsory cause of action - The new Act with change in the language of the statute the same having become more specific and precise with the inclusion of the words "when right to sue first accrues", there can be little doubt that although a cause of action may have arisen even on subsequent occasions as well, what is material for the purpose of computing the period of limitation under Article 58 is the date when the right to sue first accrued - In order to identify as to when exactly the right to sue first accrued to the plaintiff it may be necessary to make a brief reference to the facts of the case. The defendant claiming to be the owner which forms part of the suit property appears to have made an application to the revenue authorities for consideration of his complaint that 16 guntas of his land had been appropriated by the plaintiff - The particular threat gives rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardizes the said right - .....
........
7. I am to notice that the expression "where the right to sue first accrues" appearing in Article 58 came to be included in the Limitation Act of 1964 in place of Article 120 of the Old Act of 1908. In Article 120 of the old Act, which was the corresponding Article to Article 58 of the new Act, the 68 OS.No.551/2001 language used was quite different, in that the language employed in the old Act read, "when the right to sue accrues". It may well be on the basis of the language of the provision as it stood prior to the Amending Act of 1964, it was possible to contend that whenever the right to sue accrued, a plaintiff who was the repository of such a right could treat it was the commencement of the period of limitation. But under the new Act with the change in the language of the statute the same having become more specific and precise with the inclusion of the words "when right to sue first accrued", there can be little doubt that although a cause of action may have arisen even on subsequent occasions as well, what is material for the purpose of the computing the period of limitation under Article 58 is the date when the right to sue first accrued.
...."
b) AIR 2006 SC 3608 (between Prem Singh and Others Appellant Vs. Birbal and Others Respondents in Civil Appeal No.2412 of 2006 arising out of SLP (C) No.11 of 2003 decided on 02.05.2006 before their Lordships S.B.Sinha, J. P.K.Balasubramanyan, J.) wherein he has drawn the attention of this Court to the observations of the Hon'ble Apex Court that;
69 OS.No.551/2001
"Limitation Act, 1963 - Article 59
- Setting aside sale deed - Article 59 as attracted where coercion, undue influence, misrepresentation or fraud is required to be proved - There is presumption of valid execution of registered document and onus is on a person who rebuts such presumption by leading evidence - Respondents No.1 alleging misrepresentation in contents of document, but has not been able to rebut presumption - Sale deed was executed by plaintiff when respondent was a minor - Sale deed being void, respondent had two options, he did not exercise either of them to sue plaintiff within 12 years of execution of the deed or within 3 years of attaining majority - Suit was rightly held to be barred by limitation - Decree passed by lower appellate Court as well as of High Court holding that suit was not barred by limitation set aside.
.........
13. There is presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus would be on the person who leads evidence to rebut the presumption. In the instant case, Respondent No.1 has not been able to rebut the said presumption. If a deed was executed by the plaintiff when he was a minor and it was void, he had two option to file a suit to get the property purportedly conveyed there under. He could either file the suit within 12 years of the deed of 70 OS.No.551/2001 within 3 years of attaining majority. Hence, the plaintiff did not either sue within 12 years of the deeded or within 3 years of attaining majority, Therefore, the suit was rightly held to be barred by limitation by the trial Court.
...."
c) The judgment of the Hon'ble Apex Court in Civil Appeal No.9519 of 2019 arising out of SLP (Civil) No.11618 of 2017 between Dahiben vs. Arvindbhai Kalyanji Bhanusali (Garja) (D) their LRs and Others decided on 9 July, 2020 before his Ladyship Ms. Indu Malhotra J., wherein he has drawn the attention of this Court to the observations of the Hon'ble Supreme Court that;
".......
14. The Limitation Act, 1963 prescribes a time-limit for the institution of all suits, appeals and applications. Section 2(j) defines the expression period of limitation to mean the period of limitation prescribed in the Schedule for suits, appeal or applications. Section 3 lays down that every suit instituted after the prescribed period, shall be dismissed even though limitation may not have been set up as a defence. If a suit is not covered by any specific article, 71 OS.No.551/2001 then it would fall within the residuary article.
Articles 58 and 59 of the Schedule to the 1963 Act, prescribe the period of limitation for filing a suit where a declaration is sought, or cancellation of an instrument, or rescission of a contract, which reads as under:
.....
The period of limitation prescribed under Articles 58 and 59 of the 1963 Act is three years, which commences from the date when the right to sue first accrues.
In Khatri Hotels Pvt. Ltd. & Anr. V. Union of India & Anr., this Court held that the use of the word first between the words sue and accrued, would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. That is, if there are successive violation of the right, it would not give rise to a fresh cause of action, and the suit will be liable to be dismissed, if it is beyond the period of limitation counted from the date when the right to sue first accrued.
.....
15.3. The plaintiffs have made out a case of alleged non-payment .....
We find that the suit filed by the Plaintiffs is vexatious, meritless and does not disclose a right to sue. The plaint is liable to be rejected under Order VII Rule 11(a).
72 OS.No.551/2001
15.4. The plaintiffs have averred in the plaint that the .......On a reading of the plaint, it is clear that the cause of action arose on the non-payment of the bulk of the sale consideration, which event occurred in the year 2009. The plea taken by the Plaintiffs is to create an illusory cause of action, so as to overcome the period of limitation. The plea raised is rejected as being meritless and devoid of any truth.
15.5. The conduct of the Plaintiffs in not taking recourse to legal action for over a period of 5 and ½ years from the execution of the Sale Deed in 2009, for payment of the balance sale consideration also reflects that the institution of the present suit is an after-thought. The Plaintiffs apparently filed the suit after the property was further sold by Respondent No.1 to Respondent Nos.2 and 3, to case a doubt on the title of Respondent No.1 to the suit property.
.....
15.7. The present case is a classic case, where the plaintiffs by clever drafting of the plaint, attempted to make out an illusory cause of action, and bring the suit within the period of limitation. ......
15.8. The delay of over 5 and ½ years after the alleged cause of action arose in 2009, shows that the suit was clearly barred by limitation as per Article 59 of the Limitation Act, 1963. The suit was instituted on 15.12.2014, even though the alleged cause of 73 OS.No.551/2001 action arose in 2009, when the last cheque was delivered to the Plaintiffs.
The Plaintiffs have failed to discharge the onus of proof that the suit was filed within the period of limitation. The plaint is therefore liable to be rejected under Order VII Rule 11(d) of CPC.
......"
36. To meet the dictum laid down in the above decisions, the counsel for plaintiff has not drawn the attention of this Court to any decisions.
37. So, in the back ground of the principles rendered in the above decisions, if the facts of this case on hand are taken note off, as noted above,
a) The plaintiff came to know about the sale deed executed by the 2nd defendant in favour of the 1 st defendant in respect of 20 guntas of land in the suit property i.e., Ex.D-8 first time on 27.12.1995 as stated in the police compliant at Ex.P-6 i.e., the cause of action first accrued.
b) Thus, the limitation to seek the relief of declaration i.e., 3 years as per Article 58 of the Limitation Act would expires on 26.12.1998 which is supported by the principles rendered in the above decisions.
74 OS.No.551/2001
c) Admittedly, the application at Ex.C-1 seeking amendment by way of insertion of the declaratory relief was filed on 18.01.2001, i.e., after the expiry of the limitation period.
d) In the present case on hand, as noted above, there is no order on the application at Ex.C-1. Even for the sake of arguments, as noted above, the parties contested the matter keeping in mind the amended plaint with the amendments sought in Ex.C-1, the said amendments are taken note off, then also, those amendments are hit by limitation.
e) The doctrine of relation back would not apply to the facts of this case in view of the principles laid down in the above decisions particularly in L.C.Hanumnthappa's case supra for the reasons that it will definitely take away the legal right that had accrued in favour of the defendants as the amendments sought in the application at Ex.C-1 as on the date of application itself were hit by limitation.
f) Admittedly, the Limitation Act does not contemplate condonation of delay in filing a suit though delay in filing 75 OS.No.551/2001 an application can be condoned under Section 5 of the said Act.
38. Hence, viewed from any angle, the present suit in respect of the relief of declaration is hit by limitation.
39. So far the relief of permanent injunction sought against the 1st defendant, the counsel for the LRs of the 2 nd defendant relying on the judgment passed in RSA.No.124/2007 (between Sri.Maranna since deceased presented by his LRs. Vs. Sri.Thippe Rangappa decided on 25th day of January 2017 before her Ladyship Rathnakala J.), argued that the present suit for the relief of permanent injunction against the 1st defendant also hit by limitation.
40. He has produced the online printout of the above judgment and has drawn the attention of this Court to the observations of the Hon'ble High Court of Karnataka in the above judgment that;
".......
6. Now this appeal is admitted to adjudicate the following question of law.
1. Whether the suit was barred by limitation?76 OS.No.551/2001
2. Whether proceedings of O.S.No.198/1991 on the file of Civil Judge (Jr.Dn.), Sira, can be considered as the continuation of the O.S.No.2/1985 on the file of the same Court?
3. Whether the lower appellate court was justified in condoning the delay?
.....
9. In the light of the ...
Admittedly, both parties entered into battle field when the revenue entries pertaining to the disputed property was questioned by the defendant in the RRT proceeding the year 1980. The plaintiff was very much conscious of the denial of his title by the appellant/defendant at that stage itself. Article 58 of Part III of Schedule to the Limitation Act stipulates three years' limitation from the date when the right to sue accrues to file a suit for declaration. Original Suit in OS.No.2/1985 was filed without reference to the revenue proceedings that commenced in 1980. The cause of action as that the defendant interfered with the possession of the plaintiff 10 days prior to fling of the suit. That being so, the cause of action to file the suit for the relief of declaration and injunction arose during December 1980 substituted for 3 years only and not later to that. ......
....."77 OS.No.551/2001
41. In the present suit also, as noted above, both the suits in OS.No.7/1996 and OS.No.438/1996 were filed on the same set of facts, on the same cause of action, but, OS.No.7/1996 was filed only against the 1 st defendant for the relief of permanent injunction alone and OS.No.438/1996 was filed against both the defendants for the larger relief i.e., for declaration and permanent injunction.
42. As noted above, it is the aversions of the plaintiff that the 1st defendant under the guise of the registered sale deed at Ex.D-8 executed by the 2 nd defendant without any right in respect of 20 guntas of land in the suit property, tried to tress pass into the suit property and to interfere with his possession. Hence, he has come up with the above suits.
43. So, as per the cause of action stated in the plaint, the cause of action to file the suit for declaration and for injunction arose to the plaintiff first time on 29.12.1995 itself and as noted above, in view of the recitals in the police complaint at Ex.P-6 that he/the plaintiff came to know about the sale deed at Ex.D-8 from the third parties 78 OS.No.551/2001 on 27.12.1995, the cause of action to file the suit for declaration and for injunction was first accrued on 27.12.1995.
44. The counsel for the LRs of the 2 nd defendant has also drawn the attention of this Court to the observations of the above judgment that;
".......That being so, the cause of action to file the suit for the relief of declaration and injunction arose during December 1980 substituted for 3 years only and not later to that. The Courts below have not counted upon the grey period between 15.03.1989 (when the plaintiff was directed to take back the plaintiff for presentation before the proper court) to 02.03.1991 (when it was presented before Civil Judge Court, Madhugiri). The appellate court on its own has considered it as continuation of the original suit. The law on the point is covered by the judgment of the Apex Court in (1) AIR 1973 SC 313 Amar Chand Inani -vs- Union of India (2) (2014) 1 SCC 648 Oil and Natural Gas Corporation Limited -Vs-
Modern Construction and Company.
Thus, presentation of plaint in proper Court after return is not continuation of a suit as filed in wrong Court so as to attract Section 14 of the Limitation Act. It amounts to institution of a fresh suit requiring commencement of trial afresh even if same had concluded before the Court which lacks 79 OS.No.551/2001 jurisdiction. That being so, the suit filed in the year 1991 in respect to the cause of action that arose during December 1984 was time barred and hit by Article 58 of the Limitation Act.
The Limitation Act does not contemplate condonation of delay in filing a suit though delay in failing an application can be condoned under Section 5 of the Limitation Act.
10. Sub-section (1) of Section 14 of the Limitation Act is stressed on behalf of the defendant for the first time before this Court. Said provisions reads as under:
"14. Exclusion of time of proceeding bona fide in Court without jurisdiction.- (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with the due diligence another civil proceeding, whether in a Court of first instance of appeal or revision, against the defendant shall be excluded , where the proceeding relates to the same matter in issue and is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it".
The hindrance for the plaintiff to take shelter under the above provision is, he had instituted the suit having territorial jurisdiction. He did not receive back the plaint, even after objections raised by the defendant in his written statement regarding pecuniary jurisdiction. It was only 80 OS.No.551/2001 after the order of the Court on holding enquiry to return the plaint after a delay of about 2 years, he has taken back the plaint.
11. The expression 'good faith' and 'defect of jurisdiction' were elaborated by the Apex Court in Deena -vs- Bharath Singh reported in AIR 2002 SCC 2768 at paras-15 and 16, which reads thus:
"15. The main factor which would influence the Court in extending the benefit of S.14 to a litigant is whether the prior proceeding had been prosecuted with due diligence and good faith. The party prosecuting the suit in good faith in the Court having no jurisdiction is entitled to exclusion of that period. The expression 'good faith' as used in S.14 means "exercise of due care and attention". In the context of S.14 expression 'good faith' qualified prosecuting the proceeding the Court which ultimately is found to have no jurisdiction. The finding as to good faith or the absence of it is a finding of fact. .....
.........
16. The other expressions relevant to be construed in this regard are 'defect of jurisdiction' and 'or other cause of a like nature'. The expression "defect of jurisdiction" on a plain reading means the Court must lack jurisdiction to entertain the suitor proceeding. The circumstance on which or the ground on which, lack of jurisdiction of the Court may be found 81 OS.No.551/2001 are not enumerated in the section. ....."
45. Since, in the above judgment reliance is placed on the decisions reported in AIR 1973 SC 313 and (2014) 1 SCC 648, this Court has carefully gone through the relevant portions in the above decisions also i.e.,
a) AIR 1973 SC 313 (between petitioner Amar Chand Inani vs. respondent Union of India decided on 13.10.1972 before their Lordship Mathew, Kutty Kurein JJ.) wherein the Hon'ble Apex Court has observed that;
"......
If the plaintiff had filed the suit in the trial Court on March 2, 1959, then, certainly the suit would have been within time under s.4, as that was the proper Court in which the suit should have been filed. As the Karnal Court had no jurisdiction to entertain the plaint, it was not the proper Court. The fact that the plaintiff would be entitled to take advantage of the provisions of s.14 of the Act would not, in any way, affect the question whether the suit was filed within the time as provided in S.4 in the Karnal Court. Section 14 of the Act only provided for the exclusion of the time during which the plaintiff has been prosecuting with due diligence another civil proceeding against the 82 OS.No.551/2001 defendant, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which, form defect of jurisdiction, or other cause of a like nature, is unable to entertain it. Even if the plaintiff was entitled to get an exclusion of the time during which he was prosecuting the suit in the Karnal and Panipat, the suit would not be within time as the filing of the suit in the Karmal Court was beyond the period of limitation. It was, however, argued by counsel for the appellant that the suit instituted in the Trial Court by the representation of the plaint after it was returned for presentation to the proper Court was a continuation of the suit filed in the Karnal Court and, therefore, the suit field in Karna Court must be deemed to have been filed in the trial Court; We think there is no substance in the argument, for, when the plaint was returned for presentation to the proper Court and was Presented in that Court, the suit can be deemed to be instituted in the proper Court only when the plaint was presented in that Court. In other words, the suit instituted in the trial Court by the presentation of the plaint returned by the Panipat Court was not a continuation of the suit filed in the Karnal Court (see the decisions in Hirachand Succaram Gandhy and Others v. GIP Ry.Co. (1), Bimal Prasad Mukerji v. Lal Moni Devi and Others (2) and Ram Kishun v. Ajhsirbad (3). Therefore, the presentation of the plaint in the Karnal Court on March 2, 83 OS.No.551/2001 1959, cannot be deemed to be a presentation of it on that day in the trial Court. ......
....."
b) (2014) 1 SCC 648 (between ONGC Ltd. Appellant Versus M/s. Modern Construction and Co. Respondent in Civil Appeal Nos.8957-8958 of 2013 decided on 7 October, 2013 decided before his Lordship B.S.Chauhan, S.A.Bobde JJ.) wherein the Hon'ble Apex Court has considered the above noted decision in Amar Chand Inani's case as well and held that;
"......
7. In Ramdutt Ramkissen Dass v. E.D.Sassoon & Co., AIR 1929 PC 103, a Bench of Privy Council held:
"... It is quite clear that where a suit has been instituted in a court which is found to have no jurisdiction and it found necessary to raise a second suit in a court of proper jurisdiction, the second suit cannot be regarded as a continuation of the first, even though the subject matter and the parties to the suits were identical"
8. In Sri Amar Chand Inani v.
Union of India, AIR 1973 SC 313, the issue involved herein was considered and this Court held that in such a fact-situation, where the plaint is returned under Order VII Rule 10 CPC and presented before the court of 84 OS.No.551/2001 competent jurisdiction, the plaintiff is entitled to exclude the time during which he prosecuted the suit before the court having no jurisdiction in view of the provision of Section 14 of the Limitation Act and by no means it can be held to be continuation of the earlier suit after such presentation.
9. In Hanamanthappa & Anr. V. Chandrashekharappa & Ors., AIR 1997 SC 1307, this Court reiterated a similar view rejecting the contention that once the plaint is returned by the court having no jurisdiction and is presented before a court of competent jurisdiction, it must be treated to be continuation of the earlier suit. The Court held:
In substance, it is a suit filed afresh subject to the limitation, pecuniary jurisdiction and payment of the Court fee. At best it can be treated to be a fresh plaint and the matter can be proceeded with according to law.
10. In Joginder Tuli v. S.L.Bhatia & Anr. (1997) 1 SCC 502, this Court dealt with a case wherein the landlord had terminated the tenancy and filed a suit for possession. An application for amendment of the plaint to recover damages for the use and occupation was also filed. On that basis, the pecuniary jurisdiction of the Trial Court was beyond its jurisdiction and accordingly, the plaint was returned for presentation to proper Court. On revision, the High Court directed the 85 OS.No.551/2001 Court to return the plaint to the District Court with a direction that the matter would be taken up by the District Court and proceeded with from the stage on which it was returned. This Court disposed of the case observing:
Normally, when the plaint is directed to be returned for presentation to the proper court perhaps it has to start from the beginning but in this case, since the evidence was already adduced by the parties, the matter was tried accordingly. The High Court had directed to proceed from the stage at which the suit stood transferred. We find no illegality in the order passed by the High Court warranting interference.
11. This Court in Harshad Chimanlal Mod (II) v. DLF Universal Ltd. & Anr., AIR 2006 SC 646 has approved and followed the judgment of this Court in Sri.Amar Chand Inani (supra) and distinguished the case in Joginder Tule (supra) observing that;
The suit when filed was within the jurisdiction of the Court and it was properly entrained. In view of amendment in the plaint during the pendency of the suit, however, the plaint was returned for presentation to proper court taking into account the pecuniary jurisdiction of the court. Such is not the situation here.
........
13. Thus, in view of the above, the law on the issue can be 86 OS.No.551/2001 summarized to the effect that if the Court where the suit is instituted, is of the view that it has no jurisdiction, the plaint is to be returned in view of the provisions of Order VII Rule 10 of CPC and the plaintiff can present it before the Court having competent jurisdiction. In such a factual matrix, the plaintiff is entitled to exclude the period during which he prosecuted the case before the court having no jurisdiction in view of the provision of Section 14 of the Limitation Act, and may also seek adjustment of court fee paid in that Court. However, after presentation before the Court competent jurisdiction, the plaint is to be considered as a fresh plaint and the trial is to be conducted deno even if it stood concluded before the Court having no competence to try the same.
....."
46. Relying on the principles rendered in the above judgment and the decisions, it is the arguments of the counsel for the LRs of the 2nd defendant that;
a) In the present case on hand also, the plaintiff has represented the plaint in the suit in OS.No.7/1996 before the City Civil Court, Bengaluru and got registered this suit. Hence, on representation of plaint after its return is not 87 OS.No.551/2001 continuation of a suit as filed in wrong Court so as to attract Section 14 of the Limitation Act.
b) That apart, the plaintiff has not prosecuted the suit in OS.No.7/1996 before the wrong court/II Munsiff, Bengaluru with due diligence and in good faith. Thus, he is not entitled for the exclusion of the time of proceeding in OS.No.7/1996 before the II Munsiff, Bengaluru as it was not for the bona fide reasons. On the other hand, OS.No.7/1996 was filed before the wrong court with an intention to get favourable order that too by showing the wrong village in the plaint schedule.
47. As noted above, it is apparent on the face of record that;
a) Initially the plaintiff has come up with the suit in OS.No.7/1996 on 03.01.1996 for permanent injunction only against the 1st defendant before the II Munsiff, Bengaluru.
b) Thereafter, he has moved OS.No.438/1996 on 18.01.1996 i.e., within 15 days for the relief of declaration and injunction against both the defendants on the same 88 OS.No.551/2001 set of facts and the cause of action and in respect of the same property before the City Civil Court, Bengaluru.
c) The certified copy of the plaint in OS.No.438/1996 at Ex.D-2 reflects that the pendency of OS.No.7/1996 was not disclosed in OS.No.438/1996.
d) So, the above facts prima facie support the allegations of the defendants that the plaintiff intentionally to get a favourable order has moved OS.No.7/1996 by showing the wrong village i.e. Gunjur instead of Yamlur to bring the said suit within the limits of II Munsiff, Bengaluru.
e) The plaintiff has moved memo at Ex.P-11 seeking dismissal of OS.No.438/1996 on 01.04.1997 i.e., after OS.No.7/1996 came to be decreed on 21.12.1996 and before RA.No.21/1997 came to be allowed on 09.11.1998.
f) Even he did not file any objections to IA.No.2 at Ex.D-14 filed by the 1st defendant in OS.No.7/1996 on 24.02.1996, under Section 16 read with Section 151 of CPC seeking rejection of the plaint on the ground of territorial jurisdiction, on remand of OS.No.7/1996, the plaintiff has moved application at Ex.D-16 dated 89 OS.No.551/2001 12.10.1999 under Order VII Rule 10 read with Section 151 of CPC (filed before the Court on 19.11.1999) for return of the plaint.
g) Thereafter, i.e., on 22.11.1999, i.e., just 3 days after filing the application at Ex.D-16 for return of plaint in OS.No.7/1996 on 19.11.1999 which was adjourned for objections to the said application and before the 1 st defendant files his objections to the said application for return of plaint on 21.01.2000, the plaintiff has moved seeking recall of the order on memo of withdrawal/Ex.P-11 i.e., dismissing the suit as withdrawn which came to be dismissed on 10.11.2000 as per the order at Ex.D-12.
h) Thereafter only, on allowing his application for return of plaint/Ex.D-16 on 05.01.2001, the plaintiff has represented the plaint before City Civil Court, Bengaluru on 18.01.2001 which was registered as OS.No.551/2001 in this suit.
48. So, the above facts clearly reveal that;
a) Within 15 days after filing OS.No.7/1996 before a wrong Court with wrong village name of the suit property, 90 OS.No.551/2001 the plaintiff has filed OS.No.438/1996 before the right Court with correct village name of the suit property.
b) Since, OS.No.7/1996 was decreed, he got dismissed OS.No.438/1996 and when OS.No.7/1996 was remanded for fresh trial, he moved application for return of plaint in OS.No.7/1996 and simultaneously, he has also tried to get recalled the order of dismissal of OS.No.438/1996 as withdrawn.
c) Since, he failed in his attempt to get recalled the order of dismissal of OS.No.438/1996, he got returned the plaint in OS.No.7/1996 and has represented the same before the right Court and moved an application at Ex.C-1 for amendment seeking the relief of declaration and without serving the copy of the said application on the other side and without any order on the said application, he amended the plaint and proceeded with the case.
49. So, all the above acts of the plaintiff clearly demonstrate and support the allegations of the defendants that the plaintiff has played mischief to get favourable order and to get himself enriched from the situation/the 91 OS.No.551/2001 facts and circumstances of the case and thus, it can be safely concluded that the present suit is a frivolous suit.
50. Hence, even it is apparent on the face of record that as per the plaint averments, the cause of action arose on 29.12.1995 and the suit in OS.No.7/1996 was filed on 03.01.1996 and the plaint was ordered to be returned on 05.01.2001 and it was represented before the City Civil Court, Bengaluru on 18.01.2001, because of the reasons observed above, the prosecution of OS.No.7/1996 by the plaintiff before the II Munsiff, Bengaluru is not bona fide, not with due diligence and in good faith, the plaintiff is not entitled to take shelter under Section 14 of the Limitation Act.
51. In addition, in view of the dictum laid down in the above decisions, presentation of plaint in proper Court after return is not continuation of a suit as filed in wrong Court and thus, it does not attract Section 14 of the Limitation Act. Thus, viewed from any angle, the arguments of the counsel for the LRs of the 2 nd defendant that this suit is hit by limitation so far the relief of permanent injunction against the 1 st defendant as well 92 OS.No.551/2001 holds water. Hence, this additional issue is answered in affirmative.
52. ADDITIONAL ISSUE No.6:- It is the defence of the 1st defendant that this suit is barred on account of the plaintiff having already withdrawn OS.No.438/1996 and it is the case of the 2nd defendant that once the suit for declaration is dismissed, the plaintiff cannot maintain another suit for declaration that too after lapse of so many years by just making him as a party to the proceedings and that too without seeking a proper amendment of the pleading in a procedural manner. Thus, the suit is barred by Order II Rule 2.
53. So, before proceeding further with the discussions, it is necessary to go through the provisions of Order II of CPC which is extracted here below;
"ORDER II FRAME OF SUIT
1. Frame of suit.- Every suit shall as for as practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them.93 OS.No.551/2001
2. Suit to include the whole claim.- (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim.- Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs.- A persons entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits, except with the leave of the Court, to sue of all such reliefs, he shall not afterwards sue for any relief so omitted.
Explanation.- For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action".
54. As noted above, it is not in dispute between the parties that;
a) During the pendency of OS.No.7/1996, on 18.01.1996, the plaintiff has moved OS.No.438/1996 94 OS.No.551/2001 against both the defendants seeking the relief of declaration that he is the absolute owner in possession of the suit property and the sale deed dated 21.04.1995 executed by the 2nd defendant herein in favour of the 1 st defendant in respect of 20 guntas of land i.e., Ex.D-8 is not binding on him.
b) Later moved a memo on 01.04.1997 i.e., Ex.P-11 which came to be allowed on the same date and the said suit i.e., OS.No.438/1996 is dismissed as withdrawn.
c) Thereafter, i.e., on 22.11.1999, the plaintiff has moved applications seeking recall of the order of dismissal of the above suit condoning the delay which were seriously contested by the defendants and those applications came to be dismissed on 10.11.2000 as per the common orders at Ex.D-12.
d) The plaintiff did not challenge the above order at Ex.D-12 and thus, it has attained finality.
e) The plaint and the valuation slip together in OS.No.438/1996 at Ex.D-2/D-7 and the plaint in OS.No.7/1996 which was later got amended and also got 95 OS.No.551/2001 impleaded the 2nd defendant and renumbered in this suit demonstrate that they are similar in respect of;
i) The case of the plaintiff.
ii) The cause of action to the suits.
iii) The suit property.
55. So, in view of the provisions of Order II of CPC extracted above, prima facie it appear that the subsequent suit i.e., OS.No.438/1996 is hit by Order II Rule 2 of CPC and the peculiar situation of this case is, the plaintiff got dismissed the said suit which was for the larger relief i.e., for declaration and permanent injunction without seeking liberty to file fresh suit and later moved application seeking recall of the order of dismissal which came to be dismissed and has attained finality.
56. However, relying on the above noted judgment of the Hon'ble High Court of Karnataka in RSA.No.124/2007 wherein reliance is placed on the decisions reported in AIR 1973 SC 313 and (2014) 1 SCC 648 observed above, it is the arguments of the respective counsels for the 1 st defendant and the LRs of the 2 nd defendant that as on representation of plaint in the proper Court after its return 96 OS.No.551/2001 is not continuation of a suit and it is to be treated as a fresh suit, this suit is subsequent suit to OS.No.438/1996.
57. As the above noted decisions, particularly the decision reported in (2014) 1 SCC 648 is very much in support of the arguments of the respective counsels for the 1st defendant and the LRs of the 2nd defendant, an opportunity was given to the counsel for the plaintiff to address/distinguish the above decisions or to produce decision if any over ruling the dictum laid down in the above judgment/decisions. In response to which, the counsel for plaintiff has fairly submitted that he could not lay his hands on any such decisions over ruling the principles rendered in the above judgment/decisions.
58. Thus, in view of the dictum laid down in the above judgment/decisions, this suit on representation, being a fresh suit is subsequent suit to OS.No.438/1996 which was admittedly for the larger relief and thus, this suit is hit by Order II Rule 2.
59. In the course of arguments, the counsel for the 1st defendant has also submitted that the incidental questions that arise in the circumstances of the case which 97 OS.No.551/2001 are questions of law i.e., the claim of the plaintiff is also barred by the principles of Order XXIII Rule (3) and (4) as well as hit by the principles of Estoppel, Waiver and Section 11 of CPC on the ground that;
a) The suit in OS.No.438/1996 was for the larger relief of declaration that;
i) the plaintiff is the absolute owner in possession of the suit property;
ii) the sale deed at Ex.D-8 executed by the 2 nd defendant in favour of the 1 st defendant in respect of 20 guntas of land in the suit property is not binding on the plaintiff and
iii) for permanent injunction.
b) But, the plaintiff on his own volition filed the memo at Ex.P-11 and got dismissed the suit as withdrawn without seeking the liberty of the Court to withdraw the said suit with liberty to file fresh suit as provided under Order XXIII Rule 1 of CPC.
c) Thus, this suit as amended with the amendments sought by the plaintiff in the application at Ex.C-1 is not only hit by Order XXIII Rule 4 of CPC as the plaintiff is 98 OS.No.551/2001 precluded from making any claim in relation to the same subject matter and also barred by the principles of Estoppel/Section 115 of Indian Evidence Act and res judicata/Section 11 of CPC.
60. Now, it is pertinent go through the relevant provisions which the counsel for the 1 st defendant has invoked in support of his arguments i.e., Order XXIII, Section 115 of Indian Evidence Act and Section 11 of CPC which are extracted here below;
" ORDER XXIII WITHDRAWL AND ADJUSTMENT OF SUITS
1. Withdrawal of suit or abandonment of part of claim.- (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim;
Provided that where the plaintiff is a minor ......
(2) An application for leave under the proviso to sub-rule (1) shall be ......
(3) Where the Court is satisfied,-
(a) that a suit must fail by reason of some formal defect, or
(b) that there are sufficient ground for allowing the plaintiff to institute a fresh suit for the subject-
matter of a suit or part of a claim, it 99 OS.No.551/2001 may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit respect of the subject-matter of such suit or such part of the claim.
(4) Where the plaintiff-
(a) abandons any suit or part of claim under sub-rule (1) or (b) withdraws from a suit or part of the claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject matter of such part of the claim.
(5) Nothing in this rule shall be deemed to authorize the Court to permit one of several plaintiffs .....
1-A. When .....
2. Limitation law not affected by first suit.- In any fresh suit instituted on permission granted under the last preceding rule, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted.
3. Compromise of suit.- ....
...."
61. So, the plain reading of the above provision clearly says that the applicability of the above provision is to the first suit i.e., on the facts on hand, it is to the suit in OS.No.7/1996. But, in view of the principles rendered in 100 OS.No.551/2001 the above noted judgment/decisions, OS.No.7/1996 on representation on 18.01.2001, be considered as a fresh suit, this suit becomes the subsequent suit to the suit in OS.No.438/1996. Thus, the arguments of the counsel for the 1st defendant that the present suit is also hit by order XXIII Rule 4 of CPC holds water.
62. The provision of Section 115 of Indian Evidence Act reads;
"115. Estoppel.- When a person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing".
63. In the present case on hand, the pleadings of the parties demonstrate that there is no such declaration, act or omission, intentionally causing or permitting any of the defendants to believe anything to be true and to act upon such belief.
64. But, it is the arguments of the counsel for the 1 st defendant that because of the action of the plaintiff in filing 101 OS.No.551/2001 OS.No.438/1996 and its dismissal on not pressing the said suit, this suit is hit by principle of Estoppel by order/judgment which holds water.
65. The provision of Section 11 of CPC reads thus;
"11. Res judicata.- No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been sub-subsequently raised, and has been heard and finally decided by such Court.
...."
66. In the present case on hand, as noted above, the former suit is OS.No.7/1996 which is renumbered in this suit on representation and thus, by virtue of the principles rendered in the above judgment/decisions on which the respective counsels for both the 1 st defendant and the LRs of the 2nd defendant have relied on, became a subsequent suit to the suit in OS.No.438/1996. Thus, prima facie, this suit is also hit by the principles of resjudicata/Section 11 of CPC.
102 OS.No.551/2001
67. In support of his above arguments, the counsel for the 1st defendant has relied on the judgment of the Hon'ble High Court of Karnataka, Kalaburgi Bench in RSA.No.1077/2006 between Sri.Alisab S/o Davalsab Shaik Deceased by his LRs. Appellants Vs. Late Tukaram Sidharam Kathave since Dead by his LRs. decided on 28 th day of February, 2020 before his Lordship M.Nagaprasanna wherein he has drawn the attention of this Court to the observations of the Hon'ble High Court of Karnataka that;
".......
19. This was a suit instituted by the plaintiff with ......
......
11. That these above mentioned facts constitute causes of action and immediate cause of action arose in the last week of March 1991 when the defendant interfered denying the title of the plaintiff. Hence, the plaintiff is entitled to sue and defendant is liable to answer the same".
.......
22. A bare reading of prayer in suit O.S.No43/2000 instituted by the plaintiff in juxtaposition with that of the prayer in the suit OS.No.208/1991 would in unmistakable terms indicate that they are one and the same. But in 103 OS.No.551/2001 the entire body of the plaint in OS.No.43/2000 the plaintiff does not even whisper a word about his institution of suit in the year 1991 with the same prayer. The parties in the suit in the year 1991 and 2000 are at slight variation, but defendant No.1's name that he had purchased the property from his brother had already been indicated in the pliant in OS.No.208/1991 and even in the legal notice that was caused upon defendant No1 by the plaintiff.
23. The counsel for the plaintiff would contend before this Court that it is not hit by the principles of res-
judicata or under the provisions of Order IX Rule 8 or IX Rule 9 of CPC, as one of the defendants is different from the defendant that was in suit OS.No.208/1991 and mentions that the need not disclose the earlier suit and cannot be non-suited on that ground. I am unable to accept the contention of the plaintiff that he has no duty to disclose the suit that was earlier filed, with the same cause of action. The present suit was clearly barred under provision of Order IX Rule 9 and Section 11 of CPC as also by the principles of constructive res- judicata as the suit which was filed in the year 1991 was subsequent to the sale of the property by the brother of the plaintiff and in favour of defendant No.1. thus, the law declared by the Hon'ble Supreme Court in the aforesaid judgment, is applicable all fours to the case of hand. Thus, the suit was not even maintainable.
104 OS.No.551/2001
Hence, any of the findings in a suit that was not maintainable will have no bearing law. In view of the above, the first question of law arising for consideration is answer by holding that the second suit with the same prayer which was identical to the suit in OS.No.208/1991 having been dismissed, the second suit with the same prayer is OS.No.43/2000 was clearly hit by Order IX Rule 9 of CPC and principles of res-judicata. The second suit was not maintainable before the Trial Court. Since, the suit itself is held to be not maintainable other issues need not be gone into and the order in Regular Appeal affirming the findings in the suit as a consequence will also be held to be not maintainable.
...."
68. With regard to the above proposition of law, the counsel for the LRs of the 2 nd defendant has relied on the decision reported in 2018 (1) KCCR 72 (between Sangappa Versus Hanumanthappa and Another in RSA.No.100910 of 2005 (DEC) decided on 08.12.2017 before her ladyship Mrs.S.Sujatha, J.) wherein he has drawn the attention of this Court to the observations of the Hon'ble High Court of Karnataka that;
"SPECIFIC RELIEF ACT, 1963 - Sections 34 and 38 - Suit for declaration and permanent injunction 105 OS.No.551/2001
- Plaintiff alleging that defendants have made a new water spout in middle of his land - But not producing any documentary evidence - His oral evidence prevails over documentary evidence produced by the defendants - Moreover, earlier filing suit against defendant seeking same relief but withdrawing it subsequently without obtaining liberty to file fresh suit - Court below retuning concurrent findings - Dismissing suit - Justified - No interference warranted.
.....
7. Nextly, it significant to note that the plaintiff had preferred OS.No.228/2009 against the defendants for the very same relief and the said suit was withdrawn. The conduct of the plaintiff in filing a different suit in OS.No.18/2011 on the very same cause of action against the very same defendant cannot be appreciated, since there was no liberty granted in OS.No.228/2009 to file fresh suit at the time of withdrawl of OS.No.228/2009. .....
..."
69. In respect of the present issue the counsel for the 1st defendant has relied on the decision reported in AIR 2020 SC 395 (between Vurimi Pullarao S/o Satyanarayana Versus Vemari Vyanakata Radharani W/o Dhankoteshwar Rao & Anr in Civil Appeal No.9065 of 2019 with 9066 2019 arising out of SLP (C) No.11811/2017 and 106 OS.No.551/2001 12210/2017 decided on 27 November, 2019 before his Lordship Dr.Dhananjaya Y.Chandrachud J.) wherein he has drawn the attention of this Court to the observations of the Hon'ble Supreme Court that;
"Leave Granted.
Civil Appeal No...... to the
conclusion Reasons:
that the suit for specific
performance instituted by the
appellant was barred by Order 2 Rule 2 of the Code of Civil Procedure, 1908 since the appellant had instituted an earlier suit for injunction. The course below have noticed that while instituting the earlier suit, it was in the contemplation of the appellant that a suit for specific performance of the agreement to sell would be instituted, in spite of which no leave or the Court was sought under Order 2 Rule 2(3) of the CPC. This appeal thus arises from the concurrent findings which have been recorded by the Trial Court, the First Appellate Court and by the High Court in Second Appeal holding that the suit to be barred. ..........A suit for injunction was instituted by the plaintiff, being Regular Civil Suit No.216 of 1997 before the Civil Judge, Junior Division, Malkapur, Paragraph 2 of the plaint in the earlier suit for injunction contained the following averments:
The property mentioned in .....107 OS.No.551/2001
4. The reliefs sought in the suit were a declaration that the plaintiff was in possession of the land and a permanent injunction restraining the defendant from obstructing the possession of the plaintiff. The suit for injunction was instituted on 30 October 1996. Admittedly, no leave of the Court was sought under Order 2 Rule 2(3) of the CPC in the earlier suit to institute a suit for specific performance subsequently.
5. On 30 April 1997, the appellant-plaintiff instituted .....seeking specific performance of the agreement to sell the property. The earlier suit for injunction was dismissed in default on 16 September 2005. The defendant contested the maintainability of the suit for specific performance raising the bar under Order 2 Rule 2 of the CPC. .... to the conclusion that the plaintiff had omitted to sue for specific performance of the agreement although the cause of action had accrued in favour of the plaintiff at the time when the earlier suit for injunction (RCS No.216/1997) was instituted on 30 October 1996......The trial judge observed that the plaintiff had failed to seek the leave of the Court, when the suit for injunction was instituted, to file a subsequent suit on the same cause of action seeking performance.
Consequently, the suit for specific performance was dismissed. In appeal, .....
.....
108 OS.No.551/2001
7. On the other hand, ......
The first appellate court noted that ..... Since the plaintiff omitted to seek the relief of specific performance which was available when the earlier suit for injunction was instituted, the Court inferred that the plaintiff had relinquished the claim for specific performance. Finally, .....
8. Mr.Shashibhushan P. Adgaonkar, learned counsel appearing on behalf o the appellant ..... Relying on the decision of the Constitution Bench in Gurbux Sing v Bhoorlal, it was argued that AIR 1964 SC 1810 for the bar under Order 2 Rule 2 to be established, it is necessary for the defendant to file the pleadings in the previous suit in evidence so as to prove to the Court in the subsequent suit that the is an identity of the cause of action in the two suits. In the present case it was submitted that the defendant failed to do so. ......
Moreover, it was submitted that the Trial Court proceeded to hold that the suit for specific performance was barred under Order 2 Rule 2 without framing a specific issue. .... and hence it has been submitted that the bar under Order 2 Rule 2 does not stand attract.
9. On the other hand, supporting the view ..... that the plaintiff in the earlier suit contains a clear reference to the agreement to sell to the payment of consideration and to the notice of performance that was issued by the plaintiff. Not only this, para 2 of the 109 OS.No.551/2001 plaint contained a specific recital of the fact that the plaintiff intended to institute a suit for specific performance before the ..... must necessarily result in the bar under the provision being attracted. ....
....
11. Order 2 Rule 2(1) is premised on the foundation that the whole of the claim which a plaintiff is entitled to make in respect of cause of action must be included. However, it is open to the plaintiff to relinquish any portion of the claim in order to bring the suit within the jurisdiction of the court. Order 2 Rule 2(1) adopts the principle that the law does not countenance a multiplicity of litigation. Hence, a plaintiff who is entitled to assert a claim for relief on the basis of a cause of action must include the whole of the claim. A plaintiff who omits to sue in respect of or intentionally relinquishes any portion of the claim, shall not afterwards be entitled to sue in respect of the portion omitted or relinquished. This is the mandate of Order 2 Rule 2(2). Order 2 Rule 2 (3) stipulated that a person who is entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs. However, a plaintiff who omits to sue for all the reliefs, without the leave of the Court, shall not afterwards sue for any relief so omitted. The leave of the Court will obviate the consequence which arises under Order 2 Rule 2(3). In the absence of leave being sought and granted a plaintiff who has 110 OS.No.551/2001 omitted to sue for any the reliefs to which they were entitled to sue in respect of the same cause of action would be barred from subsequently suing for the relief which has been omitted in the first instance. The grant of leave obviates the consequence under Order 2 Rule 2(3). But equally, it is necessary to note that Order 2 Rule 2(2) does not postulate the grant of leave. In other words, a plaintiff who has omitted to sue or has intentionally relinquished any portion of the claim within the meaning of Order 2 Rule 2(2), shall not afterwards be entitled to sue in respect of the portion so omitted or relinquished.
15. The situation as it obtained in the case ...... In the circumstances, we are of the view that the bar under Order 2 Rule 2 is attracted. The plaintiff was entitled to sue for specific performance when the earlier suit for injunction was instituted but omitted to do so. There was an identity of the cause of action in the earlier suit and the subsequent suit. The earlier suit was founded on the plea of the plaintiff that it was in pursuance of the agreement to sell dated 26 October 1995 that he had been placed in possession of the property. Yet, without sleeking the leave of the Court, the plaintiff omitted to sue for specific performance and rested content with the prayer for permanent injunction. In these circumstances, we agree with finding which has been arrived at by all the three courts that the subsequent suit filed is barred under 111 OS.No.551/2001 Order 2 Rule 2 does not warrant any interference in this appeal. The appeal would accordingly have to stand dismissed and we order accordingly.
..."
70. On the other hand, the counsel for the LRs of the 2nd defendant has relied on the decision reported in (2005) 5 Supreme Court Cases 548 (between N.V.Srinivasa Murthy and Others Versus Mariyamma (Dead) by Proposed LRs and Others in Civil Appeal No.4500 of 2004 from the judgment and order dated 26.05.2003 of the Karnataka High Court in MSA.No.413 of 1998 decided on July 11, 2005 before their Lordships D.M.Dahrmadhikari and B.N.Srikrishna, JJ.) wherein he has drawn the attention of this Court to the observations of the Hon'ble Apex Court that;
".......
7. In para 11 of the plaint it is stated that the plaintiff had earlier filed Civil Suit No.557 of 1990 in the Court of IInd Munsif, Bangalore seeking permanent injunction restraining the defendants from interfering with possession and enjoyment of the suit land by the plaintiffs. That suit, it is stated, was pending on the date of filing the present suit.112 OS.No.551/2001
.....
13. In para 11 of the plaint, the plaintiff have stated that they had earlier instituted Original Suit No.557 of 1990 seeking permanent injunction against the defendant and the said suit was pending when the present suit was filed. Whatever relief the petitioners desired to claim from the civil Court on the basis of averment with regard to the registered sale deed of 1953 could and ought to have been claimed in original Civil Suit No.557 of 1990 which was pending at that time. The second suit claiming indirectly relief of declaration and injunction is apparently barred by Order 2 Rule 2 of the Code of Civil Procedure.
....
15. Civil Suit No.557 of 1990 was pending when the present suit was filed. In the present suit, the relief indirectly claimed is of declaring the sale deed of 5-5-1953 to be not really a sale deed but loan transaction. Relief of reconveyance of property under alleged oral agreement on return of loan has been deliberately omitted from the relief clause. In our view, the present plaint is liable to rejection, if not on the ground that it does not disclose "cause of action", on the ground that from the averments in the plaint, the suit is apparently barred by law within the meaning of clause (d) of Order 7 Rule 11 of the Code of Civil Procedure.
16. The High Court ..... In our view, the trial Court was right in 113 OS.No.551/2001 coming to the conclusion that accepting all averments in the plaint, the suit seems to be barred by limitation. On critical examination of the plaint as discussed by us above, the suit seems to be clearly barred on the facts stated in the plaint itself. The suit as framed is prima facie barred by the law of limitation, provision of Specific Relief Act as also under Order 2 Rule 2 of the Code of Civil Procedure.
17. This is a fit case not only for rejecting the plaint but imposing exemplary costs on the appellant on the observations of this Court in the case of T.Arivandanadam v. T.V.Satyapal (SCC p.468) "The trial Court must remember that if on a meaningful - not formal - reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise its power under Order 7 Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, the Court must nip it in the bud at the first hearing by examining the party searchingly under Order 10 CPC. An activist judge is the answer to irresponsible law suits. The trial Courts would insist imperatively one examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men (Chapter 11) and must be triggered against them'. ...."114 OS.No.551/2001
71. The above noted decisions are of course in support of the arguments of the respective counsels for the 1st defendant and the LRs of the 2nd defendant as in view of the dictum laid down in the judgment of the Hon'ble High Court of Karnataka in RSA.No.124/2017 wherein the reliance was made on the decisions reported in AIR 1973 SC 313 and (2014) 1 SCC 648 that the suit on representation is to be considered as a fresh suit, this suit being the subsequent suit to OS.No.438/1996, is definitely hit not only by Order II Rule 2 of CPC., but as rightly argued by the counsel for the 1 st defendant it is also hit by Order XXIII Rule 4 and Section 11 of CPC as well as Section 115 of Evidence Act. Accordingly, this additional issue No.6 is also answered in affirmative.
72. ADDITIONAL ISSUE No.7:- The 2nd defendant has contended that since the plaintiff is claiming the right through the alleged 2nd WILL, the rule applicable to pay Court fee under the Revenue outgoings does not arise and the plaintiff has to pay court fee on the market value of the property.
115 OS.No.551/2001
73. The record demonstrates that on representation of the suit in OS.No.7/1996 which is registered in this suit, the plaintiff has filed valuation slip on 06.07.2007 valuing the suit under Section 24(d) at Rs.1,000/- and paid Rs.25/- as Court fee.
74. The office has raised objections on the above valuation that the plaintiff is required to pay the court fee on ½ of the market value in respect of the declaratory relief i.e., Rs.32,662/-. On hearing, my learned predecessor in office has passed the order on the said office objections on 15.11.2007 accepting the valuation made by the plaintiff and holding that the Court fee paid by the plaintiff thereon is sufficient.
75. The record reveals that the said order is not challenged by anybody and thus, it has attained finality. Hence, now this additional issue No.7 does not survive for consideration. Accordingly, this additional issue is answered.
76. ISSUE No.3 AND ADDITIONAL ISSUES Nos.1 TO 4:- As these issue and additional issues are inter linked and thus, require common discussions, to avoid repetitions 116 OS.No.551/2001 and for the sake of convenience, they are taken together for consideration.
77. Before venturing to the evidence on record with regard to these issues, it is necessary to keep in mind the proposition of laws covering these issue and additional issue.
78. In respect of these issues, the counsel for plaintiff has relied on the decisions reported in;
a) AIR 1997 Himachal Pradesh 43 (between Shakuntala Devi Vs Savitri Devi & Ors in Regular Second Appeal No.445 of 1989 decided on 11-1-1996 before his Lordship R.L.Kaurana, J.) wherein he has drawn the attention of this Court to the observations of the Hon'ble High Court of Himachal Pradesh that;
" ...... (B) Succession Act (39 of 1925) S.63(C) - will - Execution -
Suspicious circumstances - Attesting witnesses not knowing contents of will
- Not a suspicious circumstance -
attesting witness stating as to attestation being made in presence of testator - Failure on part of witnesses to give contents of will - Not a suspicious circumstance.
(C) Succession Act (39 of 1925), S.63 - Will - Execution - Suspicious 117 OS.No.551/2001 circumstances - Contradiction in statements of witnesses in regard to date of death of testator - Witnesses not related to testator - They were rustic villagers deposing after six years of execution of will - Contradiction will not be a suspicious circumstance against validity of will
- Witnesses cannot be expected to remember minute details of facts.
(D) Succession Act (39 of 1925) .
S.63 - Will - Execution - Suspicious circumstances - Will produced nine month after death of testator for getting mutation on its basis -
Absence of evidence to show that legatees failed to produce will earlier in spite of opportunity to do so - Period of nine months not long enough to cast shadow on genuineness of will."
b) AIR 1999 Madras 149 (between Ramesh Vs A.Manohar Prasad & Others in TOS.No.45 of 1996 and OP.No.505 of 1995 decided on 06.01.1999 before his Lordship S.Thangaraj, J.) wherein he has drawn the attention of this Court to the observations of the Hon'ble High Court of Madras that;
"(A) Succession Act (39 of 1925) S.218 - Letters of Administration -
Grant of Conscious execution of will by testator proved - Failure of defendants to prove that testator was not in disposing state of mind and health on relevant date - Defendants also 118 OS.No.551/2001 failed to prove suspicious circumstances - Will not executed fraudulently nor fabricated by attesting witnesses - Plaintiff would be entitled to Letters of Administration. ...........
(B) Succession Act (39 of 1925, S.63 - Will - Proof - Suspicious circumstances valid execution proved - Will cannot be said to be invalid merely on ground that disposition was not made in favour of anyone or a legal heirs of testator. ..............
14. The next contention raised by the defendant are that the testator during his lifetime he expressed intention of giving Manappakkam agricultural lands to Gruhalakshmi his daughter and quite contrary to his intention expressed earlier under Ex.P- 1 the said lands were bequeathed in favour of his grand sons Ravi Shankar Prasad and Manohar Prasad. Though the defendants had stated number of suspicious circumstances regarding the execution of the Will, this particular reason stated by the 7 th defendant would go against the interest of defendants 1 and 8. The execution of a Will depends entirely on the intention of the testator. If the testator felt that his properties should go to his legal heirs in the normal line of succession, there was no necessity for him to execute a Will and the very execution of the Will was to make a disposition against the normal succession."
119 OS.No.551/2001
c) AIR 1988 Delhi 73 (between Ram Lal Vs Hari Kishan in SA.O.No.372 of 1985 decided on 18-8-1986 before his Lordship Sultan Singh J.) wherein he has drawn the attention of this Court to the observations of the Hon'ble High Court of Delhi that;
"(A) Succession Act (39 of 1925, S.63 - Attestation of Will - Proof -
Mode of - Attesting witnesses not cross-examined on question of attestation - It is not necessary for attesting witness to depose that he signed as witness in presence of testator - Held, will was duly executed."
d) AIR 2007 (NOC) 235 (KER) (between Elsy & Ors. Vs V.K.Raju & Ors in A.S.No.370 of 1994 decided on 20- 10-2006 before his Lordship V.Ramkumar, J.) wherein he has drawn the attention of this Court to the observations of the Hon'ble High Court of Kerala that;
" ............. (B) Succession Act (39 of 1925) S.63 - Will - Execution of - Merely because the Will in question is an unregistered Will and there is an uneven distribution of property under the Will, that cannot be treated as a suspicious circumstances."120 OS.No.551/2001
79. Per contra, the counsel for the 1 st defendant has relied on the judgment of the Hon'ble Apex Court in Civil Appeal No.6076 of 2009 between Shivakumar & Ors Versus Sharanabsappa & Ors decided on 24 April, 2020 before his Lordship Dinesh Maheshwari J.) wherein he has drawn the attention of this Court to the observations of the Hon'ble Supreme Court that;
".....
WILL PROOF AND SATISFACTION OF THE COURT
10. As noticed, the basic point for determination in this case is .....Determination of this point, obviously, revolves around the legal principles applicable to the making of a testamentary document like WILL, its proof, and its acceptance by the Court.
10.1. The Will being a rather solemn document that comes into operation after the death of the testator, special provisions are made in the statutes for making of a Will and for its poof in a Court of Law. Section 59 of the Succession Act provides that every person of sound mind, not being a minor, may dispose of his property by Will. A Will or any portion of a Will, the making of which has been caused by fraud or coercion or by any such importunity that has taken away the free agency of the testator, is declared 121 OS.No.551/2001 to be void under Section 61 of the Succession Act; and further, Section 62 of the Succession Act enables the maker of a Will to make or alter the same at any time when he is competent to dispose of his property by Will. .........shall execute his Will according to following rules:-
a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the wiring as a Will.
c) The Will shall be attested by two or more witness, each of whom has been the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and not particular form of attestation shall be necessary.
10.2. Elaborate provisions have been ..... However, when the Will is surrounded by suspicious circumstances, the Court would expect that the legitimate suspicion should be 122 OS.No.551/2001 removed before the document in question is accepted as the last Will of the testator.
10.3. As noticed, ....Will ought to be attested by two or more witnesses. Hence, any document propounded as a Will cannot be used as evidence unless at least on attesting witness has been examined of the purpose of proving its execution .....
.....
21. Apart from the suspicious circumstances ..... in some cases the Wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the Wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the Will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the Will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. .....
.....
19. When there are suspicious circumstances regarding the execution of the Will, the onus is also in the propounder to explain them to the satisfaction of the Court and only when such responsibility is discharged, the Court would accept the Will as genuine. Even where there are no such pleas, but circumstances give rise to doubt, it is on the propounder to satisfy the conscience of 123 OS.No.551/2001 the Court. Suspicious circumstances rise due to several reasons such as with regard to genuineness of the signature of the testator, the conditions of the testator's mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indications in the Will to show that the testator's mind was not free. ....
.....
11. For what has been noticed herein above, the relevant principles governing the adjudicatory process concerning proof of a Will could be broadly summarized as follows:
1. Ordinarily, a Will has to be proved like any other document; ....
2. Since as per Section 63 of the Succession Act, a Will is required to be attested, it cannot be used as evidence until at least one attesting witness as been called for the purpose of proving its execution ....
3. The unique feature of a Will is that it speaks from the death of the testator and, therefore, the maker thereof is not available for deposing about the circumstances in which the same was executed. ...The initial onus, naturally, lies on the propounder but the same can be taken to have been primarily discharged on proof of the essential act which go into the making of a Will.
4. The case in which the execution of the Will is surrounded by 124 OS.No.551/2001 suspicious circumstances stands on a different footing. The presence of suspicious circumstances makes the onus heavier on the propounder and, therefore, in cases where the circumstances attendant upon the execution of the document give rise to suspicion, the propounder must removed all legitimate suspicious before the document can be accepted as the last Will of the testator.
5. If a person challenging the Will alleges fabrication or alleges fraud, undue influence, coercion et cetera in regard to the execution of the Will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the Will may give rise to the doubt or as to whether the Will had indeed been executed by the testator and/or as to whether the testator was acting of his own free will.
In such eventuality, it is again a part of the initial onus of the propounder to remove all reasonable doubts in the matter.
6. A circumstance is suspicious when it is not normal or is not normally expected in a normal situation or is not expected of a normal person. As put by this Court, the suspicious features must be real, germane and valid and not merely the fantasy of the doubting mind.
7. As to whether any particular feature of a set of features quality as suspicious would depend on the facts and circumstances of each case. A 125 OS.No.551/2001 shaky or doubtful signature; a feeble or uncertain mind of the testator; an unfair disposition of property; an unjust exclusion of the legal heirs and particularly the dependents; an active or leading part in making of the Will by the beneficiary there under et cetera are some of the circumstances which may give rise to suspicion.
8. The test of satisfaction of the judicial conscience comes into operation when a document propounded as the Will of the testator is surrounded by suspicious circumstance/s. While applying such test, the Court would address itself to the solemn question as to whether the testator had signed the Will while being aware of its contents and after understanding the nature and effect of the dispositions in the Will?
9. In the ultimate analysis, where the execution of a Will is shrouded in suspicion, it is a mater essential of the judicial conscience of the Court and the party which sets up the Will has to offer cogent and convincing explanation of the suspicious circumstances surrounding the Will.
80. The counsel for the LRs of the 2 nd defendant has relied on the;
a) judgment passed by the Hon'ble Madras High Court in the case of P.Sasikala Vs. Smt. Chandra in Original Petition No.545 of 2010 converted to 126 OS.No.551/2001 testamentary original suit No.1 of 2011 decided on 08.03.2017 before his Lordship N.Sathishkumar J. wherein he has drawn attention of this Court to the observations of the Hon'ble High Court of Madras that;
"......
21. in H.Venkatachala Iyengar v. B.N.Thimmajamma and others (AIR 1959 SC 443), it has been held as follows:-
"The mode of proving a Will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Indian Succession Act. ..... The onus must be on the propounder and in absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and signature of the testator as required by law may be sufficient to discharge the onus. Where, however, there are suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the Court before the Will can be accepted as genuine. If the caveator alleges undue influence, fraud or coercion, the onus will be on him to prove the same. Where are no such pleas but the circumstances give rise to such doubts, it is for the propounder to satisfy the conscience of the Court. What are suspicious circumstances must be judged in the facts and circumstances of each particular case.127 OS.No.551/2001
If the propounder takes a prominent part in the execution of the Will which confers substantial benefits on him, that itself is a suspicious circumstances attending the execution of the Will and in appreciating the evidence in such a case, the Court should proceed with an open but nevertheless vigilant and cautious mind." ........ Section 68 deal with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. It would be prima facie be true to say that the Will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. The propounder would be called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. ..... generally speaking where there is proof of signature, everything else is implied till the contrary is proved, and evidence of the Will having been read over to the testator or of instructions having been given is not necessary.
22. In Ram Piari v. Bhagwant and others (AIR 1990 SC 1742), it has been held as follows:-128 OS.No.551/2001
"Although freedom to .... what is required of propounder to establish is that the testator at time of disposition knew and understood the property he was disposing and person who were to be beneficiaries of his disposition. Prudence, however, requires reasons for denying benefit to those who who were entitled to bounty of testator as they had similar claims on him. Absence of it may not invalidate a Will but it shrouds the disposition with suspicion as it does not given any linking to the mind of testator to enable the Court to judge if the disposition was voluntary act.
23. In Madhukar D. Shende v.
Tarabai Aba Shedage {(2002) 2 SCC 85}, it has been held as follows:-
"In proof of execution of Will if evidence adduced is legal and convincing, satisfies the conscience of the Court and there is nothing unnatural about the transaction, mere conjecture of unfounded suspicion should not be permitted to sway the verdict that the Will has been proved. Further held, well grounded suspicion may be reason for closer scrutiny of the evidence, but a judicial verdict cannot be based on suspicion alone. The identify of the propounder of the Will as well as that of the disputant and also the pleadings would be relevant and of significance. .... Judicial thinking, held, should not be affected by unfounded suspicions and conjectures. ....... considers the existence of such fact so probable that any prudent person ought, under the 129 OS.No.551/2001 circumstances of that particular case, to act upon the supposition that the Will was duly executed by the testator, then the factum of execution of Will shall be said to have been proved. ....
24. In Janki Narayan Bhoir v. Narayan Namdeo Kadam {(2003) 2 SCC 91}, it has been held as follows:-
"Succession act, 1925 .... On a combined reading of Section 63 of the Succession Act with Section 68 of the Evidence Act, it appears that a persons propounding the Will has got to prove that the Will was duly and validly executed. That cannot be done by simply proving that the signature on the Will was that of the testator but it must also be proved that attestations were also made properly as required by clause (c) of Section 63 of the Succession Act. ......But what is significant and to be noted is that one attesting witness examined should be in a position to prove the execution of a Will.
Section 63 of the Succession Act .... If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attestation of the Will by other witness also it falls short of attestation of Will at least by two witnesses for the simple reasons that the execution of the Will does not merely mean the signing of it b the testator but it means fulfilling and proof of all the formalities required under Section 63 of the Succession Act.130 OS.No.551/2001
25. In Meenakshiammal (died) through LRs., and others v.
Chandrasekaran and another {(2005) 1 SCC 280}, it has been held as follows:-
"The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity ad proof of the signature of the testator, as required by law, is sufficient to discharge the onus. Once the propounder proves that Will was (I) signed by the testator, and (ii) that he was at the relevant time in a sound disposing state of ind, and (iii) that he understood the nature and effect of the disposition and put his signature out of his own free will, and (iv) that he signed it in presence of the witnesses who attested it in his presence, onus, which rests on the propounder, is discharged. ....... The conscience of the Court has to be satisfied by the propounder of Will adducing evidence so as to dispel any suspicions or unnatural circumstances attaching to a Will provided that there is something unnatural or suspicious about the Will. The law of evidence does not permit conjecture or suspicion having the place of legal proof nor permit them to demolish a fact otherwise proved by legal and convincing evidence. Will founded suspicion may be a ground for closer scrutiny of evidence but suspicion alone cannot form the foundation of a judicial verdict position or negative.....
......131 OS.No.551/2001
He has also relied on the observations of the decisions noted in paras Nos.28 to 38 of the above judgment and those observations are similar to the above noted observations with regard to proof of Will, onus to prove the will and to satisfy the suspicious circumstance to the conscience of the Court and the observations in para No.40 are that;
"40. From the decision reported as AIR 1955 SC 343 Girija Datt Singh Vs. Gangotri Datt Singh, the quoted passage with respect to in what manner the propounder has to discharge the burden to prove the Will is as under:-
"a) it was singed by the testator in the presence of the two attesting witnesses;
b) the witnesses should have seen the testator sign the Will, or have been told by him that he had signed it;
c) The attesting witnesses, or one of them must depose to these facts, in the subsequent probate or other action concerning the Will. In the absence of attesting witnesses, or course, it is open to the propounder to prove the Will like any other document, provided that proof of the acts mentioned in Section 63 and 69 are led."
...."
132 OS.No.551/2001
b) (2010) 5 Supreme Court Cases 770 (between Balathandayutham and another Versus Ezhilarasan in Civil Appeal No.7357 of 2001 from the Judgment and Order dated 10.12.2001 of the High Court of Judicature at Madras in SA.No.130 of 2000 decided on April 16, 2010 before their Lordships G.S.Singhvi and A.Ganguly, JJ.) wherein he has drawn the attention of this Court to the observations that;
".......
5. In the suit, the stand of the first appellant was that the Will dated 25.09.1972 was not genuine and the said Will had been revoked by Ramachandran by another Will dated 25.04.1980 and also thereafter by another Will dated 02.5.1980. both the appellants claimed their rights under the so-called subsequent Wills.
6. In his rejoinder, the respondent-plaintiff claimed that the so-called subsequent Wills adated25.04.1980 and 02.05.1980 are fabricated and at the relevant point of time Ramachandran was bedridden and did not have the capacity to execute any Will as he died within a few days thereafter on 23.05.1980.
.....
14. When a Will is surrounded by suspicious circumstances, the person propounding the Will has a very heavy 133 OS.No.551/2001 burden to discharge. This has been authoritatively explained by this Court in H.Venkatachala Iyengar v.
B.N.Thimmajamma, P.B. Gajendragadkar, J. (as His Lordship then was) in para 20 of the judgment, speaking for the three-Judge Bench in H.Venkatachala held that in a case where the testator's mind is feeble and he is debilitated and there is not sufficient evidence as to the mental capacity of the testator or where the deposition in the Will is unnatural, improbable or unfair in the light of the circumstances of it appears that the bequest in the Will is not the result of the testator's free Will and mind, the Court may consider that the Will in question is encircled by suspicious circumstances.
15. Going by this test, as we must, we find that both the Wills, Ext.B-19 and Ext.B-20 are surrounded by suspicious circumstances. The ratio in H.Venkatachala is that in such a situation the Court "would naturally expect that all legitimate suspicious should be completely removed before the document is accepted as the last Will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, Courts will be reluctant to treat the document as the last Will of the testator." .....
18. Commenting on these provisions, this Court in 134 OS.No.551/2001 H.Venkatachala laid down that Section 68 deals with the proof of the execution of the document required by law to be attested; and it provided that such a document shall not be used as an evidence until one attesting witness at least has been called for the purpose of proving it execution. ..... It was further held that Section 63 of the Succession Act requires that the testator shall sign or affix his mark to the Will or it shall be signed by some other person in his presence and by his direction and that the signature or make shall be so made that it shall appear that it was intended thereby to give effect to the writing as Will. This Section also requires that the Will shall be attested by two or more witnesses as prescribed. ....
...."
81. With regard to the proof of WILL, onus to prove the WILL and to satisfy the suspicious circumstance to the conscience of the Court, he has also relied on the decisions reported in;
a) (2009) 4 Supreme Court Cases 780,
b) 1965 AIR 354 and
c) ILR 2007 KAR 1484.
82. The principles rendered in the above decisions are much similar to the principles rendered in the above noted observations and the earlier decisions in the above noted decisions are referred in the subsequent decisions. 135 OS.No.551/2001 Moreover, there is no quarrel between the parties/the respective counsels with regard to the dictum laid down in those decisions.
83. In the back ground of the settled proposition of law with regard to the proof of WILL rendered in the above noted decisions relied on by the respective parties, if the pleadings of the parties and the evidence on record are taken note off, there is no dispute between the parties with regard to the 1st WILL.
84. It is the case of the plaintiff that the 1 st WILL was canceled by the 2nd WILL. The defence is that the 2nd WILL is a fabricated and forged document. It is settled proposition of law and the principle rendered in the above decisions on which the respective counsels have relied on that the initial burden of proving the WILL is on the propounder.
85. To discharge his burden, the plaintiff with his oral evidence, has let in the original 1 st and 2nd WILL respectively at Ex.P-3 and P-32.
86. In the 1st WILL out of 1 acre 20 guntas, 1 acre i.e., double the land allotted to the 2 nd defendant which is 136 OS.No.551/2001 admittedly 20 guntas, was allotted to the plaintiff and the reason stated therein is that the plaintiff had been taking care of him/the testator even after the death of his wife, which appears to be reasonable cause.
87. Except the recitals with regard to cancellation of the 1st WILL and allocating the entire suit property to the plaintiff, all the other recitals in both the WILLs are similar. Excluding 20 guntas alloted to the 1st defendant in the 1st WILL, all the other properties allotted to him in the 1 st WILL are allotted to him/the 1st defendant in the 2nd WILL as well.
88. The only word used in the 2 nd WILL for cancellation of the 1st WILL is that " ನನಗಗ ಸರ ಬಬಳದ ಪಪಯಯಕಕ", what is the reason for that, is not stated. Thus, there is no reason stated specifically in the 2nd WILL for taking back the 20 guntas of land out of the suit property allotted to the 2nd defendant and to allot the same to the plaintiff.
89. So, it creates some doubt in the mind of a reasonably prudent man that what would have been the reason for the testator to cancel the 1 st WILL within a span of (from 22.06.1983 to 21.12.1983) exact 6 months and to 137 OS.No.551/2001 execute the 2nd WILL wherein only the 20 guntas allotted to the share of the 2nd defendant out of 1 acre 20 guntas was disturbed (in the 2nd WILL, the total extent shown is 1 acre 19 guntas instead of 1 acre 20 guntas and the extent shown in the plaint schedule is also 1 acre 19 guntas) and the other properties were kept in tact.
90. It is admitted by the plaintiff in his cross examination that he has sold 20 guntas of land out of the suit survey number as per Ex.D-1. Ex.D-1 is the certified copy of the sale deed dated 18.04.2011 and the property shown in the schedule therein is;
"All that piece and parcel of immovable property bearing converted Sy.No.3/1, (converted from agricultural to non-agricultural residential purpose vide Conversion Order bearing No.ALN(EVH)SR- 46/2010-11 dated 28.09.2010, issued by the Special Deputy Commissioner, Bangalore Dist, Bangalore), situated at Yamlur Village, Varthur Hobli, Bangalore East Taluk, totally measuring of 20 guntas out of 39 guntas, with all rights, appurtenances whatsoever hereunder or underneath or above the surface and bounded on;
East By : Remaining portion of same Sy.No.3/1 belongs to Mr.Ramachandrappa;138 OS.No.551/2001
West By : Remaining portion of same Sy.No.3/1 belongs to Mr.Ramachandrapa;
North By : Road;
South By : Kempapura Village Boundary".
91. Admittedly, Mr.Ramachandrappa referred in the East and West side of the above boundary is none other than the plaintiff. So, vide Ex.D-1, the plaintiff has sold middle portion of 20 guntas out of 39 guntas.
92. The certified copy of the above conversion order referred in Ex.D-1 is on record at Ex.D-6 which demonstrates that the plaintiff had filed application on 19.05.2010 seeking conversion of the above 39 guntas and also paid conversion charge of Rs.53,144/- vide challan dated 23.09.2010 and got converted the said land.
93. It is pertinent to note that in the reference at Ex.D-6 at Sl.No.5 and 6, the letters of the City Planning Section, Deputy Commissioner (Land Acquisition) and the Commissioner of BDA respectively dated 22.06.2010, 17.07.2010 and 20.10.2010 are also referred. So, this Court can take judicial notice that by the above dates, 139 OS.No.551/2001 Yamlur Village would have been taken within the fold of BDA.
94. At this stage, it is also pertinent to note that in his cross examination PW-3/P-1(e) has admitted that the land remained after selling the property at Ex.D-1 is also developed.
95. In the cross examination of the 1 st defendant at page No.14 at para No.2, it is suggested that both the above villages i.e., Yamlur and Kempapura are developed and came within the limits of BBMP and it is also suggested at page No.26 at para No.4 that on 20 guntas of land sold by the plaintiff (vide Ex.D-1), an apartment has been constructed.
96. So, prima facie, a doubt arises in the mind of a reasonably prudent man that if really the plaintiff was allotted with 1 acre 19 guntas of land i.e., the suit property under the 2nd WILL which is dated 21.12.1983, why he did get converted only 39 guntas leaving 20 guntas that too when the same had already been came within the limits of BDA, which also creates some doubt in the mind of a prudent man.140 OS.No.551/2001
97. It is in the cross examination of the plaintiff at para No.2 in page No.12 that;
"..... When the Will was executed and subsequent to that I was looking after my father and at that time my brother was living separately. Even when regrant proceedings were pending my brother was not residing with me. My father was not expressing that he was wishing to go to my brother's house nor he had asked me to call my brother to the house...."
98. Of course, he has denied the suggestion that taking advantage of the absence of his brother, he himself being present, got executed the 2 nd WILL from his father by undue influence. But, the possibility of the said suggestion cannot be thrown outrightly as admittedly, the testator who was aged 75 years as on the date of the admitted 1 st WILL and thus, by the time of 2 nd WILL, 6 more months older under the care and custody of the plaintiff.
99. To prove the 2nd WILL, the plaintiff has got examined one of the alleged attesting witnesses by name Sri.H.Narayanappa as PW-2 who has filed his affidavit wherein he has stated that he is acquainted with the testator Late Sri.Kondamuniyappa who told him 141 OS.No.551/2001 innumerable time that he wanted to settle the suit property in favour of his 2nd son i.e., the plaintiff who was taking care of him.
100. At this stage, it is pertinent to note that it is evident on record that the time gap between the 1 st and the 2nd WILL is exact 6 months and in the 1 st WILL admittedly 20 guntas in the suit property was given to the 2 nd defendant. Hence, the evidence of PW-2 that the testator told him innumerable time that he wanted to settle the suit property in favour of the plaintiff is contrary to the documentary evidence on record.
101. It is also in the chief affidavit evidence of PW-2 that on 21.12.1983, the testator invited him to his residence and told that he/PW-2 should attest a document which he/testator is executing as a WILL and since he knew the testator well, he agreed to become an attesting witness.
102. It is also in his chief affidavit evidence that on 21.12.1983, he went to the house of the testator at about 11:30 a.m. and by that time, another gentlemen to whom the testator had requested to come was present. After 142 OS.No.551/2001 enquiry, he/PW-2 came to know that the other gentlemen is Sri.Ramashesh and after they were seated in the hall, the testator came with a typed document which he/testator explained them as his Last WILL and Testament and he/PW-2 attest the same as one of the witnesses.
103. It is also in his chief affidavit evidence that the testator read the entire WILL in their presence and he having totally understood the contents of the WILL executed by subscribing his/testators signatures on all the pages of the WILL.
104. It is again in his chief evidence that after the testator subscribed his signatures on all the pages and requested them to attest the document. Accordingly, Ramashesh subscribed his signatures and thereafter, he subscribed his signatures.
105. It is also in his affidavit evidence that subsequently, the testator requested them to come to the Sub-Registrar's office for registration and accordingly, he proceed along with the testator and the document was presented by the testator for registration and the Sub- 143 OS.No.551/2001 Registrar after having gone through the document and verifying the details, registered the document.
106. It is also in his chief affidavit evidence that he identified the testator in the office of the Sub-Registrar and the testator had very good health and came to the office of Sub-Registrar and he/the testator could read and write without any difficulties.
107. Before the Court, PW-2 has identified the document/WILL at Ex.P-32; the signature of the testator on every page of Ex.P-32 at Ex.P-32(i) to (j); his signature as an attesting witness at Ex.P-32(a); and the signature of another attesting witness Sri.Ramashesh at Ex.P-32(b) and the signature of the said Sri.Ramashesh identifying the executor at Ex.P-32(c).
108. It is in his cross examination for the counsel for 1st defendant that he came to know the testator since he was vising the house of Shanbhog Sri.Subbarao and Shanbhog Sri.Gopalarao, both of Varthuru and of a single family.
109. It is also in his cross examination that 4 - 5 days before 21.12.1983, on which date the WILL was 144 OS.No.551/2001 executed, the testator met him in Bengaluru and asked him to come on 21.12.1983 as he was intended to execute a WILL and he/the testator met him alone.
110. At this stage, a doubt arises in the mind of a prudent man with regard to the evidence of PW-2 that the testator who was aged more than 75 years met him alone in Bengaluru.
111. It is also in his cross examination that Sri.Ramashesh got prepared the WIlL and bought it to the home, wherein the testator and Sri.Ramashesh read over the contents. But, contrary to the above evidence, as noted above, it is in his chief evidence that by the time he reach the house of the testator, Sri.Ramashesh was in the house who was called by the testator and the testator brought the WILL and read over it to them i.e., himself and to Sri.Ramashesh.
112. To the question that whether the scribe was present, he has answered that Sri.Ramashesh and the testator were present. To the question that Sri.Ramashesh was also his friend, he has answered that he was knowing to him. But, contrary to the above, it is in the chief affidavit 145 OS.No.551/2001 of PW-2 as noted above that when he went to the house of the testator "a gentleman called by the testator was there and on enquiry, he came to know that he/the gentleman is "Sri.Ramashesh".
113. It is also in his cross examination that the WILL was executed by stating that the self-acquired property is of the testator were bequeathed in favour of his two sons. He does not know the numbers of the properties involved in the WILL.
114. But, contrary to the above evidence, it is in his chief evidence as noted above that the testator was saying him innumerable time that he wanted to settle the suit property in favour of his 2nd son i.e., the plaintiff who was taking care of him.
115. At this stage, it is pertinent to note that in both the WILLs the properties were allotted to only the male issues and the female issues were excluded. Hence, if the above evidence of PW-2 is accepted that the WILL was executed by stating that the self-acquired properties of the testator were bequeathed in favour of his two sons, then again, a doubt arises in the mind of a reasonably prudent 146 OS.No.551/2001 man that then there would be no cause/reason for executing the alleged 2nd WILL that too disturbing only the 20 guntas out of the suit property allotted to the 2 nd defendant.
116. To the next question that the contents of Ex.P- 32 are all correct, he has answered that he does not know. To the question that the testator had no vision, he has answered that he did not observe.
117. So, a doubt arises with regard to his evidence in his chief evidence that the testator himself read over the entire WILL to them; the evidence in his cross examination that Sri.Ramashesh and the testator read over the WILL to him and 4 - 5 days back, the testator alone met him in Bengaluru and asked to come to his house on 21.12.1983.
118. It is also in his cross examination that he does not know whether the testator was aware of reading and writing. But, as noted above, it is in his chief affidavit evidence that the testator himself read over the entire WILL to them and the testator was having good heath and could read and write without any difficulty. 147 OS.No.551/2001
119. So, the above noted contradictions in the chief affidavit evidence and the cross examination of PW-2 creates a clear doubt with regard to preparing of the chief affidavit evidence on the instructions of PW-2. On the other hand, they prima facie show that PW-2 might have been signed the chief affidavit evidence without going through it which was prepared convenient to the case.
120. It is also in the cross examination of PW-2 that he does not know where Ex.P-32 was typed. He has admitted the suggestion that Sri.Ramashesh was also a deed writer by profession.
121. To the question that it is written in Ex.P-32 that since the testator having loss of vision, was aged 75 years and had ailments as well as the possibilities of imbalance of mind, he has answered that it was possible and the testator was capable of executing the WILL on that day.
122. He has denied the suggestion that in collusion with plaintiff, himself and Sri.Ramashesh, keeping the testator in dark, got executed the WILL at Ex.P-32. But, the collective reading of the contradictions, in the evidence of PW-2 and the doubts observed above while discussing 148 OS.No.551/2001 on recitals at the 1st and 2nd WILL at Ex.P-3 and 32, probabalize the above suggestion with regard to the collusion.
123. In the cross examination for the counsel for LRs of the 2nd defendant, PW-2 has deposed that he did profession of deed writer for around 50 years and he was a licensed deed writer. He knows Sri.V.S.Narasimhamurthy, the deed writer since around 10 - 15 years (Ex.P-32 reflects that he/the said Sri.V.S.Narasimhamurthy is the scribe).
124. He has admitted that being the deed writer, he knows that the details of the witnesses, such as name, father's name, addresses are all to be mentioned in the a deed/document and there is no full name and address of his, mentioned in Ex.P-32. He has denied the suggestions that;
a) the same reflects that he was not present at the time of execution of Ex.P-32 and put his signature later and to hide his identity, he just put the signature without full name and address.
149 OS.No.551/2001
b) himself, Sri.Narasimhamurthy and Sri.Ramashesh in collusion, created Ex.P-32 and obtained the signature of the testator on the instance of the plaintiff.
125. But, the admitted fact that he was licensed deed writer did his profession for 50 years sworn to the affidavit as to, that he did not know Sri.Ramashesh till he was introduced in the house of the testator on 27.12.1983 that too the said witness i.e. Sri.Ramashesh is also a deed writer, probabalize the above suggestions with regard to the collusion.
126. The LRs of the plaintiff in the course of evidence have contended that the LRs of the 2 nd defendant have sold a house property to one of the LRs of the plaintiff i.e., Sri.R.Sudarshan/P-1(c) in which it is clearly stated that they got the said property vide the registered WILL dated 21.12.1983 i.e., the 2nd WILL.
127. The PW-3/P-1(e) has filed his chief affidavit in that regard and the certified copy of the said sale deed is at Ex.P-34 and the recitals therein are in support of the above contention of the LRs of the plaintiff with regard to the 150 OS.No.551/2001 source of title of the property shown therein i.e., the reference with regard to the 2nd WILL.
128. In his cross examination, it is elicited that there is no pleading in that regard in the plaint and the same is evident on record. Except that, nothing elicited in the cross examination of PW-3 with regard to the reference of the 2 nd WILL at Ex.P-34 as a source of title.
129. So, from the above evidence, it can be safely concluded that the plaintiff/his LRs have proved that;
a) the testator signed the 2nd WILL as the signatures of the testator are not disputed by the other side.
b) The signatures of the testator are so placed that and they appear that they are intended thereby to give effect to the writing as a WILL.
130. But, in view of the contradictions noted in the evidence of PW-2, they are failed to prove that;
a) The testator was having sound state of mind to execute the 2nd WILL.
b) The testator signed the 2 nd WILL understanding the disposition of the properties therein; 151 OS.No.551/2001
c) The 2nd WILL was attested by two witnesses as contemplated under Section 63 of the Indian Succession Act;
d) Each of the attesting witnesses have seen the testator signing the 2nd WILL.
e) Each of the witnesses signed the 2nd WILL in the presence of the testator.
131. They have also failed to explain and to remove the above noted doubts to the mind of a reasonably prudent man i.e., suspicions surrounding the 2 nd WILL observed while discussing the contents of the recitals at the 1st and 2nd WILLs at Ex.P-3 and 32 respectively as well as the evidence of PW-2 to the conscience of this Court with clear and satisfactory evidence.
132. In addition, as noted above, admittedly, the testator who was aged more than 75 years was under the care and custody of the plaintiff and thus, the plaintiff was in a prominent position.
133. It is also in the plaint that the plaintiff looked after his father/the testator till his death and during the life time of his father/the testator, there was a proceedings 152 OS.No.551/2001 pending before the Tahasildar, Bengaluru South Taluk in Case No.HOACR.34/1983-84 and to participate in the said proceedings, he used to take his father/the testator to the office of the Tahasildar and got his/testator's evidence recorded and finally got the orders of re-grant on 25.10.1993 in favour of his father/testator. He met all the expenses towards the said proceedings and due to these reasons, his father/the testator bequeathed the suit property in his favour.
134. Admittedly, it is the plaintiff who is the much benefited under the alleged 2nd WILL. Because of the reasons stated above, it was the plaintiff who was taking his father/the testator out side the house and to the revenue offices. Hence, the possibility of the defence that the plaintiff in collusion with the scribe and attesting witnesses got executed the alleged 2nd WILL by keeping the testator in dark is more.
135. In view of the principles rendered in the above decisions, the law requires such a legitimate suspicion surrounding the alleged 2nd WILL be removed by the propounder before accepting the said WILL as genuine. 153 OS.No.551/2001 But, the plaintiff/his LRs have failed to remove the above legitimate suspicion i.e., the possibility of the plaintiff playing the prominent role in getting executed the alleged 2nd WILL with clear and satisfactory evidence. Accordingly, issue No.3, additional issues Nos.1, 2 and 4 are answered in negative, additional issue No.3 in affirmative.
136. ISSUE No.1:- To prove his possession over the suit property, the plaintiff has filed his chief affidavit evidence. On his demise, his LRs are brought on record. His fourth son Sri.R.Srinivas/P-1(e) is examined as PW-3 and he has also deposed that they have had been in possession of the suit property.
137. To prove his possession over the suit property, the plaintiff has produced;
a) Ex.P-3A, the mutation register extract of MR.No.4/1994-95 dated 13.11.1994 which demonstrates that based on the 2nd WILL and observing that the 1st WILL had been canceled vide the 2nd WILL, the khatha of the suit property is raised in the name of the plaintiff.
b) RTCs maintained in the name of the plaintiff by virtue of the above mutation i.e., MR.No.4/1994-95 i.e., 154 OS.No.551/2001
i) Ex.P-4 and Ex.P-17 for the year 1994-95.
ii) Ex.P-16 for the year 1996-97
iii) Ex.P-18 for the year 2008-09.
138. It is the arguments of the counsel for the LRs of the 2nd defendant that the above mutation proceedings at Ex.P-3A is without the authority and in support of his arguments, he has relied on the decision reported in ILR 2002 KAR 2750 (between C.N.Nagendra Singh Vs. The Special Deputy Commissioner, Bengaluru District and Others in Writ Petition No.19065/2001 9KLR-RR/SUR) decided on 28th May, 2002 before their Lordships N.K.Jain, CJ., H.Rangavittalachar and N.Kumar, JJ.) wherein he has drawn the attention of this Court to the observations of the Hon'ble High Court of Karnataka that;
"......
2. Brief facts leading to the order of reference, as alleged, are:
..... The petitioner made an application for change of mutation in his name in respect of the aforesaid lands on the basis of the Will. The third respondent by his order dated 29.05.1982 ordered for a change of mutation. The said order was challenged by respondents 4 and 5 before the second respondent -
Assistant Commissioner who set aside the order of the Tahasildar and 155 OS.No.551/2001 remanded the matter to the Tahasildar for fresh enquiry. On remand, the third respondent - Tahasildar by his order dated 28.02.1987 rejected the application of the petitioner and directed the parties to approach the competent Civil Court.......
3. Sri.S.K.Venkata Reddy....
contended that the revenue authorities were not justified in directing the parties to approach the competent Civil Court to establish their title to the property in question. The revenue officer being Revenue Court who is empowered to enquiry into or to decide any question arising for determination between the parties to any proceedings is bound to hold an enquiry regarding the genuineness otherwise of the Will set up by the petitioner for the limited purpose making an entry in the mutation register and therefore, the order directing the petitioner to approach the civil Court is wholly erroneous. A mutation entry in the revenue records is not a document of title and therefore by holding a limited enquiry in respect of the genuineness of the Will the revenue authority could enter the name of the petitioner in the revue records ....
......
5. Therefore, the point that arise for out consideration is what is the scope, power and jurisdiction of the revenue officer under the provisions of Sections 127 and 129 of the Act and whether the revenue officer is competent to hold an enquiry and 156 OS.No.551/2001 decide the question of genuineness of a Will in proceedings under Section 129 of the Act.
......
7. Section 127 of the Act deals with preparation of record of rights in the prescribed manner. Section 128 of the Act deals with report of acquisition of rights and Section 129 deals with registration of mutations and register of disputed cases. If any person acquires by succession, survivorship, inheritance, partition, purchase, mortgage, fit, lease otherwise, any right as holder, occupant, owner, mortgagee, landlord or tenant of the land or assignee of the rent of revenue thereof, he shall report orally or in writing his acquisition of such right to the prescribed officer who in turn shall entering the such register of mutation every such report made to him. If any objections are received to any such entry the prescribed office shall also enter the particulars of the objections in a register of disputed cases and thereafter he shall enquire into the said objections and dispose of the same in such manner as may be prescribed. A bare perusal of Section 128 makes it clear that the name cannot be entered in the record of rights merely on the basis of Will. The above definition reveals that there is no mention of Will. So according to petitioner's counsel even putting the Will before the Revenue Court, one has to get a declaration from the competent Court, that is letter of probate and thereafter he can get his 157 OS.No.551/2001 name entered in the mutation register.
That apart even according to petitioner's counsel the mutation entry will not confer any right. Then there is no purpose of entering the petitioner's name. The argument cannot be accepted that the Revenue Officer can consider the Will, as he is not competent decide the right under the Will. As per Section 135 a formal or a summary inquiry under this Act shall be judicial proceedings and not otherwise.
The cardinal principle of law is that if the language is simple and ambiguous, it is to be read with the clear intention of the legislation.
Otherwise also, any addition/subtraction of a word is not permissible. Admittedly, the word "Will" has deliberately been not used by the legislation and we cannot give different meaning by adding the word "Will".
In view of the above discussion, mutation entry cannot be effect on the basis of the Will as suggested argued.
9. Considering Rule 43 when a person claims title to a property under a Will for the purpose of getting mutation entry in the revenue record before any such entry is made the Revenue Court should prima facie be satisfied that the said document is genuine and valid even in the absence of any dispute as the said Will comes in the way of natural succession.
......the Revenue Curt cannot go into 158 OS.No.551/2001 the disputed questions of relationship, status of the parties title to the property or genuineness or otherwise of a document or challenge to the documents on the ground of fraud, undue influence, misrepresentation or mistake. As such, the petitioner cannot take advantage of Rule 43 in the case of a Will.
10. From the foregoing discussion, it is clear the revenue officer has no jurisdiction to enquiry into and decide the dispute regarding the genuineness of a Will even for the limited purpose of making an entry in the mutation register as it falls exclusively with the jurisdiction of the Civil Court and we answer accordingly.
....."
139. So, the principle rendered in the above decision is in support of the arguments of the counsel for the LRs of the 2nd defendant as it is clearly held in the above decision that "the word "Will" has deliberately been not used by the legislation and we cannot give different meaning by adding the word "Will" and thus, mutation entry cannot be effect on the basis of the Will and the parties cannot take advantage of Rule 43 of the Karnataka Land Revenue Rules in case of a Will".
159 OS.No.551/2001
140. The counsel for plaintiff has not drawn the attention of this Court to any other decision over ruling the above dictum. Hence, in view of the principles laid down in the above decision, the MR proceeding at Ex.P-3A is without an authority and thus, not in accordance with law.
141. Hence, even the RTC is supported by the presumption under Section 132 of the Karnataka Land Revenue Act, 1964 with regard to the contents therein, in view of the very mutation proceeding at Ex.P-3A based on which, the RTCs at Ex.P-4/17, 16 and 18 were/are maintained in the name of the plaintiff, itself is without authority, the above RTCs cannot come to the aid of the plaintiffs.
142. The other documents produced by the plaintiff are;
a) Tax paid receipts i.e.,
i) Ex.P-5 is dated 23.05.1995 for the year 1994-95.
ii) Ex.P-14 dated 11.03.1997 for the period 1996-97.
iii) Ex.P15 dated 25.01.2008 for the year 1997-98.
iv) Ex.P-12 is dated 01.10.1999 for the year 1999- 2000.
v) Ex.P-13 dated 22.02.2011 for the year 2010-11. 160 OS.No.551/2001
b) Electricity Bills both dated 06.02.2011 for Rs.231/- and Rs.100/- respectively at Ex.P-10 and 21.
c) Electricity Bill paid Receipts in respect of the above bills at Ex.P-19 and 21 respectively at Ex.P-22 and 20.
d) Colour photos of the suit property at Ex.P-23 to 25 and the CD at Ex.P-26.
143. But, by the above documents, admittedly, the plaintiff/his LRs cannot prove their possession over the suit property.
144. In the course of evidence, the LRs of the plaintiff have contended by way of the chief affidavit evidence of P- 1(e)/PW-3 that out of 20 guntas of land on which the 1 st defendant claiming his right by virtue of the sale deed at Ex.D-8, the KIADB has acquired 7 guntas, but the 1 st defendant did not challenge the Notifications in that regard.
145. He has also stated that on the other hand, it is his father/the plaintiff has challenged the same before the Hon'ble High Court of Karnataka in WP.No.42465/2003 since the revenue records were standing in the name of his father and his father was/is in possession of the suit 161 OS.No.551/2001 property till date. The above WP came to be dismissed on 29.03.2007 and his father challenged the said order in WA.No.854/2007 which was allowed and the Notifications were set aside.
146. In support of their above contention, they have also produced the certified copy of the order dated 02.11.2012 passed by the Hon'ble High Court of Karnataka in WA.No.854/2007 (LA-KIADB) at Ex.P-33.
147. It is in the chief affidavit evidence of P-1(e)/PW- 3 that the notifications are dated 12.12.2002 and 07.08.2003. It is observed in the above orders at Ex.P-33 that the plaintiff has filed objections on 15.03.2003.
148. But, the plain perusal of the above order clearly shows that the subject matter of the said proceedings is 7 guntas of land in Sy.No.3/1 of Yamlur Village. Admittedly, the suit property measures 1 acre 19 guntas. It is not specifically stated by the LRs of the plaintiff towards which portion of 1 acre 19 guntas, the above 7 gutnas was acquired.
149. However, in the cross examination of the 1 st defendant at page No.21, the last question is that 7 guntas 162 OS.No.551/2001 towards the western side of the property he/the 1 st defendant is claiming is acquired by KIADB, for which, he has answered that Notification is issued. Hence, it can be safely concluded that it was towards the western side of the disputed 20 guntas out of the suit property.
150. But, it is important to note that the plaintiff is claiming right over the entire suit property by virtue of the 2nd WILL. Hence, to protect his right under the 2 nd WILL over the entire suit property, he might have been challenged the Notifications. But, the said act itself, it cannot be said that the plaintiff has had been in possession of the entire suit property.
151. Moreover, it is an admitted fact that during the pendency of this suit, the plaintiff sold 20 guntas out of the entire extent of the suit property i.e., 1 acre 19 guntas and thus, the extent now remained is admittedly 39 guntas. But, for the reasons best known to him, the plaintiff did not get amended the plaint schedule in that regard.
152. On the other hand, the 1st defendant, to prove his possession over 20 guntas of land he has purchased out of the suit property vide the registered sale deed at 163 OS.No.551/2001 Ex.D-8 executed by the 2 nd defendant, with his oral evidence, has produced the documents at;
a) Ex.D-4/9 i.e., the certified copy of the MR.No.3/1994-95 which demonstrates that based on the 1st WILL at Ex.P-3, khatha were raised in the name of the 2nd defendant to an extent of 20 guntas and in the name of the plaintiff to an extent of 1 acre.
b) Ex.D-10 is the RTC in the names of the 2nd defendant and plaintiff for 20 guntas and 1 acre respectively by virtue of the above MR proceeding i.e., MR.No.3/1994-95.
i) But, the above documents are not helpful to the 1 st defendant as the above MR order is also without any authority in view of the dictum laid down in the above decision reported in ILR 2002 KAR 2750 on which the LRs of the 2nd defendant has relied on and the RTC at Ex.D-10 was maintained consequent to the MR order at Ex.D-4/9.
c) Ex.D-5 is the Krishi Pass Book in the name of the 2nd defendant for the year 1993-94. 164 OS.No.551/2001
d) Ex.D-8 is the original sale deed dated 21.04.1995 which reflects the possession of the vendor/the 2 nd defendant and delivery of possession to the purchaser/the 1st defendant.
e) Ex.D-11 is the Tax paid Receipt dated 07.12.1994 for the year 1993-94 in the name of the 2nd defendant.
f) Ex.D-19 to 24 are the colour photos and Ex.P-25 is the negative.
153. From the tax paid receipts and the photos as well as their negatives, the possession cannot be proved. However, the Krishi Pass Book and the original sale deed at Ex.D-8 can be relied on, if otherwise/contrary is not proved. Admittedly, no mutation is taken place in favour of the 1st defendant based on his title deed at Ex.D-8 and he did not take any steps in that regard before the revenue authority.
154. However, in his cross examination to the question that has he got mutated the property he has purchased into his name, the 1st defendant has deposed that since there was a delay of around 2 years in issuing the registered sale deed as then, there was manual system 165 OS.No.551/2001 and by that time, since this suit was already filed, he could not get mutated the property.
155. Admittedly, his sale deed at Ex.D-8 is dated 21.04.1995 and the suit in OS.No.7/1996 was filed on 03.01.1996 on the alleged interference dated 29.12.1995. Hence, prima facie, it appears that there is nothing to discard the explanation of the 1st defendant in not getting mutated the property into his name based on his title deed at Ex.D-8.
156. It is also elicited in the cross examination of the 1st defendant that the 2nd defendant did not get bifurcated the 20 guntas. To the question that whether he tired to get bifurcated, he has answered that by that time, this case was already filed.
157. As noted above, his sale deed at Ex.D-8 is dated 21.04.1995 and the suit in OS.No.7/1996 was filed on 03.01.1996 on the alleged interference dated 29.12.1995. Hence, prima facie, it appears that nothing is there to disbelieve the explanation of the 1st defendant in not getting bifurcated the property.
166 OS.No.551/2001
158. It is also in the cross examination of the 1 st defendant that by the time of his purchase of the land, there were 20 to 22 coconut trees and there is no mention in his sale deed about the existence of the coconut trees.
159. To the question in para No.20 of his cross examination that the family members of the plaintiff removed all the coconut trees in entire 1 acre 19 guntas, the 1st defendant has answered that the coconut trees are still in existence in his 20 guntas. He has denied the suggestion that the coconut trees on the bunds of 1 acres 19 guntas left as a boundary to bifurcate the suit property from adjoining lands.
160. To the question that the apartment owners (the apartment constructed in 20 guntas of land sold by plaintiff vide Ex.D-1) removed the entire coconut trees within their limits and in the remained 39 guntas, the coconut trees are on boundary lines, he has answered that 20 guntas sold to the apartment situates in between the suit survey number and in his 20 guntas, the coconut trees are in the entire extent.
167 OS.No.551/2001
161. At this stage, it is pertinent to see the photos of the suit property at Ex.P-23 to 25 which demonstrates the coconut trees are not only on bunds but also in between. The photos at Ex.D-19 to 24 are of coconut garden only. The back side of the photos at Ex.P-23 to 25 are if keenly observed, it appears that the coconut trees thereon are thick. So, there is possibility that the photos at Ex.D-19 to 24 are of the said portion.
162. The schedule of the sale deed of the 1 st defendant at Ex.D-8 demonstrates that towards the east, it is the land of Ramachandrappa i.e., the plaintiff and as noted above, it is suggested to the 1 st defendant that 7 guntas towards the western side of the property he is claiming was acquired by the KIADB. So, prima facie, the disputed 20 guntas is the western portion of the suit property.
163. Thus, prima facie it appears that the photos at Ex.P-23 to 25 are of the eastern portion of the suit property and the photos at Ex.D-19 to 24 are of the western side of the suit property (of course, no apartment is appearing in any of the above photos) and thereby supports the above 168 OS.No.551/2001 noted evidence of the 1 st defendant that there are coconut trees on the disputed 20 guntas of land he has purchased from the 1st defendant.
164. D-2(c) and 2(e) i.e., Smt.Shobha and Smt.Jayashree are respectively examined as DWs-2 and 3 and filed their affidavits in lieu of their examination in chief reiterating the defence averments of their father/the 2 nd defendant.
165. In their cross examination, they stood on their chief evidence that their father got 20 guntas of land out of the suit property vide the 1st WILL at Ex.P-3 which he sold to the 1st defendant vide registered sale deed at Ex.D-8. Their father had been in possession of the same till he sold the same to the 1st defendant and from the date of purchase, the 1st defendant has been in possession of the same.
166. All DWs-1 to 3 denied the suggestions that both the defendants were never in possession of the disputed 20 guntas of land at any point of time.
167. It is the plaintiff who has come up before the Court seeking permanent injunction and thus, it is he who 169 OS.No.551/2001 has to prove his lawful physical possession over the suit property. But, from the above discussion, the plaintiff/his LRs have failed to prove their physical possession over the entire suit property. Hence, this issue is answered in negative.
168. ISSUE No.2:- It is the case of the plaintiff that the 1st defendant has interfered with his peaceful possession over the suit property. In view of answering issue No.1 in respect of the possession of the plaintiff over the suit property in negative, this issue does not survive for consideration.
169. Even for the sake of arguments, the case of the plaintiff with regard to the alleged interference is taken note off, it is in the plaint that;
a) The 1st defendant having no manner of right, title and interest whatsoever over the suit property, under the guise of the registered sale deed at Ex.D-8 executed by his brother/the 2nd defendant on 21.04.1995, tried to disturb his possession/trespass upon the suit property on 29.12.1995.
170 OS.No.551/2001
b) Immediately, he lodged the police complaint and petition to the revenue authorities including the Tahasildar not to modify the khatha and revenue records in the name of the 1st defendant based upon the said concocted sale deed.
c) Despite of the same, he/the 1st defendant has illegally tired to trespass on the suit land with an intention to put up the fence. Hence, this suit.
170. He has produced the said police complaint at Ex.P-6. It is in Ex.P-6 that;
a) In pursuant of the concocted and created sale deed, his brother Muniswamy/the 2 nd defendant, his sons and P.Ramachandra Reddy/the 1st defendant along with their friends and rowdy element came to his land and tried to evict him from the land on 27.12.1995 and to take forcible possession of 20 guntas of land.
b) He has resisted their illegal acts and thereafter, he has enquired about the rights of the aforesaid persons and came to know about the fraudulent document.
171. But, there is no mention in the plaint with regard to the 2nd defendant, his sons, their friends and 171 OS.No.551/2001 rowdy element coming to the suit property on 27.12.1995 and trying to take forcible possession of the 20 guntas of land.
172. For that matter, there is no mention of the alleged incident stated in Ex.P-7 including the involvement of the 1st defendant in the plaint averments and vis a versa there is no mention in Ex.P-7 with regard to the alleged attempt of the 1st defendant to disturb the peaceful possession and trespassing upon the suit property on 29.12.1995 in the complaint at Ex.P-7.
173. So, there are much contradiction in his own pleading (plaint) and evidence (Ex.P-7) on record with regard to the alleged interference and the persons involved in the alleged interference. Admittedly, apart from his oral evidence and the document at Ex.P-7, the plaintiff has not let in other corroborative evidence. Hence, the plaintiff has failed to prove the alleged interference. Accordingly, this issue is answered in negative.
174. ISSUE No.4:- As observed above, the plaintiff initially has come up with OS.No.7/1996 only against the 1st defendant for the relief of injunction. Later has moved 172 OS.No.551/2001 OS.No.438/1996 against both the defendants for the relief of declaration and permanent injunction and on his own, got it dismissed as withdrawn.
175. On representation of the suit in OS.No.7/1996 which is reregistered in this suit, the plaintiff has moved the amendment application at Ex.C-1 seeking insertion of para No.3(a) and the relief of declaration on which till date, there is no order. However, under the guise of order on amendment application for change of village name in the plaint schedule, the amendment sought in Ex.C-1 also been carried out on in the plaint.
176. Since, the parties contested the matter keeping in mind the relief of declaration as well, even for the sake of arguments, the amendments sought in Ex.C-1 are taken into consideration, as noted above, they are hit by limitation and thus, the suit remained only for the permanent injunction.
177. Even the plaintiff got impleaded the 2 nd defendant to this suit, as observed above, there is no amendment with regard to the cause of action against him and the cause of action remained is the original cause of 173 OS.No.551/2001 action against the 1st defendant alone. Hence, the suit remained as it is, is only for the relief of permanent injunction against the 1st defendant only.
178. It is the case of the plaintiff that he has been in possession and enjoyment of the suit property by virtue of the 2nd WILL and the 1st defendant under the guise of the registered sale deed executed by the 2 nd defendant in respect of 20 guntas of land in the suit property, has interfered with his peaceful possession and enjoyment of the suit property. But, as noted above, he has failed to prove the same.
179. Moreover, in view of the principles rendered in Anathula Sudhakar's case, when his title was disputed, the plaintiff was required to file the suit for declaration. But, as noted above, the plaintiff has filed OS.No.7/1996 only for the relief of permanent injunction without seeking the relief of declaration and the application he has filed for amendment for insertion of the declaratory relief is hit by limitation. Thus, in that view also, this suit for bare injunction is not maintainable.
174 OS.No.551/2001
180. Hence, viewed from any angle, the plaintiff is not entitled for any of the reliefs sought in the suit. Accordingly, this issue is answered in negative.
181. ISSUE No.5:- As noted above, from the evidence on record, it can be safely concluded that this suit is a frivolous suit.
182. Admittedly, the defendants are before the Court because of these suits in particularly the present frivolous suit and fighting for justice i.e., the 1 st defendant since 1996 and the 2nd defendant after his impleadment in the year 2008 i.e., for a long period of almost 35 years and 13 years respectively.
183. Hence, the circumstances warrant that the defendants be compensated and even the compensation is taken at the rate of Rs.1,000/- each per year nominally, then also, the 1st defendant is entitled for Rs.35,000/- and the 2nd defendant/his LRs are entitled for Rs.13,000/- as compensation.
184. The circumstances of the case also warrant that in default of payment of the compensation awarded to the 175 OS.No.551/2001 1st defendant and the 2nd defendant/his LRs, shall carry interest at least at the bank rate of interest.
185. Hence, from the above discussions and in view of answering issues Nos.1 to 4, additional issues Nos.1, 2, and 4 in negative, additional issue No.3, 5 and 6 in affirmative, this Court proceeds to pass the following order.
ORDER The suit of the plaintiff is hereby dismissed with costs.
In addition, the plaintiff/his LRs shall pay nominal compensation/damages of Rs.35,000/- to the 1st defendant and Rs.13,000/- to the 2nd defendant/his LRs within 30 days from today. In default of which, the above nominal compensation shall carry interest at the rate of 8% p.a. from the date of default, till the payment of the same in its entirety.
Draw a decree accordingly.
(Dictated to the Judgment Writer directly on computer, corrected by me and then pronounced in the open Court on this the 5th day of November, 2020).
(K. KATHYAYANI), LXVI Addl.CC & SJ, Bengaluru.
176 OS.No.551/2001SCHEDULE All that piece and parcel of Survey No.3/1, measuring 1 Acre 19 guntas, situated at Yamalur Village, Varthur Hobli, Bangalore South Taluk and bounded on the;
East by : Burial Ground
West by : Kempapurada Papaiah's Garden Land
North by : Kempapura Road and
South by : Chikkanahalli Ramaiah's Garden land.
(K. KATHYAYANI), LXVI Addl.CC & SJ,Bengaluru ANNEXURE
1. List of witnesses examined for plaintiff:
P.W.1: Sri.M.Ramachandrappa.
P.W.2: Sri.H.Narayanappa.
P.W.3: Sri.R.Srinivas.
2. List of documents exhibited for Plaintiff:
Ex.P1 : Certified copy of Sale Deed Ex.P.2 : Death certificate of late Sri.Kondamuniyappa.
Ex.P.3 : WILL dated 22.06.1983. Ex.P.3(a)-(g): Signatures of late Sri.Kondamuniyappa.
Ex.P.3A : Mutation Register Extract.
Ex.P.4 : RTC Extract.
Ex.P.5 : Tax paid Receipt.
Ex.P.6 : Copy of Police Complaint.
Ex.P.7 : CC of Sale Deed executed by the 2nd
Defendant in favour of the 1st Defendant. Ex.P.8&9 : CC of Judgment and Decree in RA.No.21/1997.177 OS.No.551/2001
Ex.P.10&11: CC of Order Sheet and Memo of withdrawal in OS.No.438/1996. Ex.P.12to15: Revenue/Tax paid Receipts. Ex.P.16to18: Three RTC Extracts for the years 1996-97, 1992 to 2000 & 2008-09. Ex.P.19to22: Electricity Bills & Receipts. Ex.P.23to26: Photos of Suit Land with CD. Ex.P.27 : Election ID Card of PW-2. Ex.P.28 : CC of Sale Deed dated 17.06.1999. Ex.P.29 : CC of Sale Deed dated 29.04.2002. Ex.P.30 : CC of Sale Deed dated 30.05.2002. Ex.P.31 : CC of Sale Deed dated 31.03.2011.
Ex.P.32 : Will dated 21.12.1983. Ex.P.32(a) : Signature of PW.2. Ex.P.32(b&c): Signatures of Sri.Ramasheshaiah. Ex.P.32(d)-(j):Signatures of late Sri.Kondamuniyappa.
Ex.P.33 : CC of the Judgment dated 02.11.2012 passed in WA.No.854/2007. Ex.P.34 : CC of the Sale Deed dated 13.03.2006.
3. List of witnesses examined for Defendants:
D.W.1: Sri.P.Ramachandra Reddy.
D.W.2: Smt.Shobha.
D.W.3: Smt.Jayashree.
4. List of documents exhibited for Defendants:
Ex.D1 : CC of Sale Deed dated 18.04.2011. Ex.D.2 : CC of Plaint and Valuation Slip in OS.No.438/1996.
Ex.D.3 : CC of Order dated 29.03.2007 in W.P.No.42465/2003.
Ex.D.4 : CC of Mutation Register Extract in the name of the 2nd Defendant.
Ex.D.5 : Original Patta Book in the name of the 2nd defendant.178 OS.No.551/2001
Ex.D.5(a) : Photograph of the 2nd defendant affixed on Patta Book.
Ex.D.6 : CC of Conversion Order dated 28.09.2010.
Ex.D.7 : CC of Plaint in OS.No.438/1996. Ex.D.8 : Original Sale Deed dated 21.04.1995 Ex.D.8(a) : Signature of 2nd the Defendant. Ex.D.8(b) : Signature of DW-2.
Ex.D.9 : CC of MR.No.3/1994-95
dated 16.10.1994.
Ex.D.10 : RTC.
Ex.D.11 : Tax paid Receipt.
Ex.D.12 : CC of Order dated 10.11.2000 in OS.No.438/1996.
Ex.D.13 : CC of Application under Order XXXIX Rules 1 and 2 of CPC filed by the Plaintiff in OS.No.7/1996.
Ex.D.14 : CC of Application under Section 16 and 151 of CPC read with Section 3 of Bengaluru City Civil Courts Act filed by defendant in O.S.No.7/1996.
Ex.D.15 : CC of Application under Order VI Rule 17 of CPC filed by plaintiff in O.S.No.7/1996.
Ex.D.16 : CC of Application under Order VII Rules 10(1) and (2) read with Section 151 of CPC filed by Plaintiff in OS.No.7/1996. Ex.D.17 : CC of Objections filed by the Defendant to IA.No.4 in O.S.No.7/1996.
Ex.D.18 : CC of objections filed by the Defendant to the Amendment Application in OS.No.7/1996.
Ex.D.19-24: Colour Photographs.
Ex.D.25 : Negatives.
(K. KATHYAYANI), LXVI Addl.CC & SJ,Bengaluru.
179 OS.No.551/20015.112020:
For Judgment-
The respective counsels for all the parties are present.
On perusal of the record,
it is found that the
MR.No.4/94-95 is exhibited as
Ex.P-3 in the chief evidence of
plaintiff/PW-1 on 29.01.2010.
But due to oversight, in the
cross examination of PW-2
H.Narayanappa on
22.06.2019, on going through
the exhibit number written on
the document i.e. Ex.P-3
which was marked in some
other case, the signatures of
the witnesses identified by
PW-2 are marked as Ex.P-3(a)
to (g). In fact the above WILL is
not at all marked in the
evidence of any of the
witnesses for the plaintiff.
However, since the
parties were examined and
cross examined keeping in
mind the above WILL as Ex.P-
3, to avoid unnecessary
ambiguity, the above WILL is
treated as Ex.P-3 and the
certified copy of MR.No.4/94-
95 is ordered to be
renumbered as Ex.P-3A.
Office is directed to make
necessary correction/
amendment in the document.
180 OS.No.551/2001
Judgment is pronounced
in the open Court (vide
separate Judgment).
ORDER
The suit of the plaintiff is
hereby dismissed with costs.
In addition, the
plaintiff/his LRs shall pay
nominal
compensation/damages of
Rs.35,000/- to the 1st
defendant and Rs.13,000/- to
the 2nd defendant/his LRs
within 30 days from today. In
default of which, the above
nominal compensation shall
carry interest at the rate of 8%
p.a. from the date of default,
till the payment of the same in
its entirety.
Draw a decree
accordingly.
LXVI Addl.CC & SJ,
Bengaluru