Karnataka High Court
Venkata Reddy S/O Rama Reddy vs Smt Kempamma W/O Late Govinda Swamy ... on 22 September, 2010
Author: Anand Byrareddy
Bench: Anand Byrareddy
'I IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 22*" DAY OF SEPTEMBER, zftnso BEFORE THE HON'BLE MR. JUSTICE ANAND REGULAR SECOND APPEAL ONO 14770 dEf_i}Z()Q§ BETWEEN: Venkata Reddy, S/0 Rama Reddy, Aged 68 years, V x -- Residing at Chikka T'11irupathi '3_r"i]v12ige',» Lakkur Hobli, NL':1I§lI' . . Kolar District 5 '562_'E1~I..6:*- ._ . . APPELLANT (By.,Sri "R§irr1esh, Adsfdcate) .....
' V' » 'SE13, 'Kempamma ' diwvjo Late Govinda Swamy Naidu 9:59 years,
2. * jSri. G. Manjunath H S/0 Late Govinda Swamy Naidu Aged 30 years, O Both are residing at /cé I I Chikka Thirupathi Village, Lakkur Hobli, Malur Taluk, Kolar District -- 562 116 ...Respo171den_tS (By Shri. B.N. Muralidhar and Shri. K.V. Advocate for Caveator/Respondent) This Regular Second Appeal is filed tinder' Section' of Code of Civil Procedure, l908i;«saga'in'st the decree dated 09.04.2008 pas*se_d in R. _A;'NO.109f2.007 on the', file of the C/C I Additional,bitstrict and~..Se_ssions"'Judge, * Kolar, dismissing the appeal and"eoiifirnfing the judgment and decree dated 24.09.2007 passed v('}..S.No.6S/2006 on the file of the Civil Judge "('Sr,D.n*),h I§f,O:1ar:-- if " _ This Regular Second; Corning on for Hearing this day, the coart deplivperediithedfollolwing:
. . t . ..
l7Hleard the"liea:rned"£l~ounsel for the appellant and the learned cotmisel for the respondent. 0 ,2. The §aaie's are referred to with reference to their ._ran'l:. trial court.
The appellant was the plaintiff before the trial court and' respondents were the defendants. The suit was for the it =re.l'ief of declaration and injunction. It was the Case of the 4 plaintiff that the suit property was originally owned by one Meerasundararn, K.S.Prasad, and K.Subbaramaiah. _..___They sold the property in favour of the plaintiff underpa sale deed dated 16.6.1997 and the plaintiff_cl'a.i,rne§i=that he was in possession of the property under said land, a farrn--house was c_onstri1r;Vte'd by eitheeviendoif and._i'*. subsequent to the applied for conversion of user to non» agricultural 'V piirp,ose.;:' authority permitted conversion 26 guntas, out of a total "was his case that in respect of the'ren1aining from a farm-house, there were oijhei-e..constri:.ctions and therefore, conversion of that area .i :"..Vj/aS,vi:Hf)t'Svfj't1ght. It was his further case that the defendants "had, ii11"."p:;,o'fliusion with the local authorities, managed to their names in Column Nos.9 and 10 of the if e._paissessment extracts, to indicate their names as being in possession of a portion of the property and taking advantage of those entries, weg seeking to interfere with the plaintiff' s possession which was the background in which the suit was filed.
The suit was contested by the defendantsi.....an_d: i'\_mx1"s..p contended that the original owner sold the p1'.9pA'¢:}'IyV i gnu of one Govindaswamy Naidu, who waspt?he'tihusband"
ELSP.' first defendant and father of__secon-:1 Vdefendiantppmeasuring -. V L' 10 guntas in Survey N of 1 85, tiiepitotal 2 acres 6 guntas. This sale said oral sale and Govindaswamyiwas the property and pursuant to at building and he was residing in another portion of ihadjcontinued in possession since the ye;j1t"19.72. 'l'herewas initial obstruction to such construction the iurisdic_tional Tahsildar, who had issued a notice, but '-1e".-riedvtaitjesfand regularised the construction. It is under Govindaswamy Naidu that the defendants were claiming it ..possession and claimed to be in continuous possession of the Hfproperty. It was subsequently partitioned in the year 2002, at which one portion was allotted to the first defendant and % another was allotted to the second defendant. It was also pointed out that in the very application for conversion of land, filed by the plaintiff, it was indicated that...t_lie1%e'ii:V§'tei'€. constructions existing on the suit propertyi_'a:n.d' therefoireti .i the possession of the defendants couldnot} A f
4. The trial court hasframedithei'followirijg i$:S1:1€Si;.'- (1) Whether the plaintiffprove owiiersliip oifithe land?
(2) Whether "possession as on the date of the .fi*l'ing'of 'the, "
tE3)ii'the'tspit _Wi1iiiiSWll)E11Ted by limitation? and iWhe_therfthe««.:pl'aintiff was entitled to the reliefs V sought' byiiffiirn?
:iIs.stie._VNos.l to 4 were negatived and the suit was i 2 pi'd.iisni"issied_. ',The same having been carried in appeal, during ipendiency of the appeal, the plaintiff had filed an tpiapplication seeking recovery of possession of the suit property. The appellate court while dismissing the appeal on 6 merits has held that insofar as the application seeking amendment to include the relief of possession was concerned, the same was highly belated and was not light of the proviso to Order Vi Rule 17 or,rh,e iieoaré.jjorCivri ,, Procedure, 1908 (hereinafter refe_rred..toiv brevity), Which lays dov_v'n.__ that-.. appliC»atiQn.3 amendment shall be allowedp_atter:_tf1e_, tria-iii eoirrmenced, unless the court comes' inspite of due diligence, the matter before commenceirnjeiitiiioiiiithe out that the nature of to the cause of action.
In that ihaidjiiiistituted the suit only after having that the gdeiferadants were in possession of a portion of purchased by him under the sale deed under wliichiliej-rwas claiming and therefore, it was incumbent on the~~pla§ntiff to have sought for the relief of possession at the it V. _»eiar1iest point of time. This not having questioned, to permit an amendment to seek the relief of possession at the stage of appeai and given the circumstances, there was an impediment 3 under the law to permit such an amendment. And further, with reference to the evidence on record PW.2 whonwas examined on behalf of the plaintiff himself having' the possession of the defendants over the suit 'theft lower appellate court has extensively extracted thei.admi.ssion,i:' Verbatim, made by PW.2 inthe counsel' of hits"e*y'id4ence'; and has found that it was inexplpicable_ that the did not chose to treat PW.2 asilai land' to challenge the statements made him, is an admission of the defeiidan-tsfilicalse. a1i:l.ithe.tepfore,».lias proceeded to affirm the th:e4Vltrial«..co1i1t.. is this which is sought to be chall_einged in pi'ese'iit'liappeal. V _"I'he illea'rne'd counsel for the appellant while seeking V contendr~.Vthat the several substantial questions of law i"f.ran'i__ed inithe appeal memo are sustainable, would emphasize __thatii'"the relief of possession being denied by the lower appellate court has placed the appellant at a point of no return. He would submit that in law, the plaintiff being 3 entitled to seek recovery of possession based on his title, would have been in a position to seek recovery of possession as on the date, the application was filed beforemthe appellate court, to seek recovery of possessiorrl T'E;1ereforei'_.'i the Proviso to Order VI Rule Procedure, 1908 (hereinafter referredlto as 'forth; brevity) is not a total bar toiperrriit stichtal relief being claimed and the amendnientl'-being lailo§.vied._ The relief was purely consevqaeiitial andthe if in such relief not having been slseefinadvertence and it could not be said thafiit clairried to circumvent the law or that sucha relief by limitation. If the appellant wasliri a position to institute a fresh suit for recovery of » 1"poss.es's.ion;"*-as on the date the application was made, there i' . was no'.li'inpediment for the lower appellate Court to have permitted such relief being granted. This would stand to in u and reason and merely to cite _the proviso Order VI Rule E 12 of the CPC, in rejecting such a relief has placed the plaintiff in a position where it would result in grave 5 miscarriage of justice in the defendants being enabled to entrench themselves on the property in respect of wh_ich, they do not have any claim, as is evident inconsistent pleadings that the property was.Vacl'q.t1ired~.iinderf_ V' an oral sale, which is not contemplated :in:_law; andgllalsoli' seeking to claim title by adverse possession which wholly ; inconsistent with their first coritention and _further, aiso claiming to he in possesslio.nl'u_nde;r alllegeid -lease deeds. While the'argun:ent"of"the ieiarneid Cotlnsel that such a relief of, have been claimed in an independent' at first blush, it is to be noticed that thereis adrnit__ted--,_inadvertence in not having sought for the" relief "of possession in the first instance. Since the very if filiilng..l'of.the for declaration and injunction was prompted by the ""'ac"t that it was, even according to the plaintiff, V * idipscoyiered that the defendants were in possession of the suit 'property. If the defendants were in possession of the suit property seeking the relief of injunction was a contradiction E 10 in terrns. The appropriate relief was to seek for recovery of possession. This not having' been done, the plaintiff seeking to plead inadvertence and urging that the relief of could have been incorporated even at the stageof ap_peal,l inf K V' circumstances as narrated above, is no,tpltenla.ble,' -Therefore, the rejection of the appeal by'the_.lower._appellatel'l'coiirt cannot ; be faulted. The question of do not give rise to any insofar as the two authoritiescited appellant namely, Bivas 'Madcm Mohan Biswal and iailiérs, j,}i1R and the decision in Kalyan Singiillltrsf "omen, AIR 1990 MP 295, are concerned, thegsamen would not advance the case of the , ;'«appe_lvlant-ffplaintiff. As is seen, in the first of the above " cases, -jszjitlwas for declaration and injunction. At the trial, it was 'found that the defendant was in possession of a portion in x suit property. Accordingly, the court had proceeded to F mould the relief directing the defendant to deliver possession of that portion. It is in that context, that the High Court had 5 ll-
held that such a relief being moulded by the trial court was not impermissible in law.
Insofar as the second decision is concie'rrie'd~,--..__'tl:~~e _ following is the settled legal position,__that_-'acc'oidvi.ng'wtothe court, flows from the authorities it-Nhir;h"'iwere _Vldi.scussed._liAin:. relation to the relief that couldbeigrantedev.env_:vui':ho'ut there ll being a prayer for sucha dire:-'ctio'n--l:l--;
"20. The legal: the above ii tlitittlla mere declaration iiii H to..lihWtl1e proviso to $.34 of ii lReliefAct, 1963 contemplates ._ hie' geiititlement of the plaintiff as obtaining on the date of the suit:
Entitlement of the Plaintifl enabling seeking further relief based on an event oeeiirring during the pendency of the suit would not render the suit not I-nciintainable,' ( iii ) It is the choice of the plointifi" to rest content by a mere decree for 'is l2 declaration in that suit and then to sue for further relief by bringing an independent suit subject to Law Limitation or to pay fer'fitrtI1er.lreitg:f"ism. by making an amendment in in that suit itselfl,
(iv) Bar enacted by the not autoniatienliy' '~.§lIIIC1l.. " cli_.s'rnis*.$'tt[ A ' "the suit but the nmst' tliflbrded an np}?()rta.'initvlsi Qtftviéfldifig the plaint if so de~Sired}' ?_"(v}:§}~' lVFI,.£i'.']'l€:l'f relief e_ctnnc)t granted to the V 'f9L'(£i.l;[ili;6F_§tV§Ifi0ltl'*.flIB same having been 7:. if I ';sp§c~;f;:'att_;= gistedjor. "
As ilsrVseejn'*ab"ove; 'several options that the court has hegldi are open. party who has not sought for a relief to i he»rnay__have been entitled would itself disclose that no " .lce.selisl by the plaintiff to be able to press the above decision into service in support of his case. Since it was if x for the plaintiff to file a suit for recovery of possession, he ought to have done so at the earliest point of time. Even at the stage of appeal, gstead of filing an application seeking 13 amendment, the suit could have been withdrawn with liberty to file a fresh suit for possession, if it was within the Vpe._1>'iod of limitation. This is what has been laid down V. decision. Hence, there is no substantial question"V.of--1a'w_that W.