Karnataka High Court
North West Karnataka Road Transport ... vs Smt Shahajad Begum @ Rehman Khatu on 27 July, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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RSA No.859 of 2008
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 27TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
REGULAR SECOND APPEAL NO.859 OF 2008
BETWEEN
NORTH WEST KARNATAKA ROAD
TRANSPORT CORPORATION LTD.,
GADAG DIVISION, GADAG,
BY ITS DIVISIONAL CONTROLLER,
GADAG-582 101.
...APPELLANT
(BY SRI R. V. JAYAPRAKASH, ADVOCATE)
SAROJA
HANGARAKI
AND
Digitally signed by
SAROJA HANGARAKI
Date: 2023.08.02
15:12:11 -0700
1. SMT. SHAHAJAD BEGUM @ REHMAN KHATU,
W/O MUSHTAQ KHAN BIRADAR NAWAB,
AGED ABOUT 61 YEARS,
OCC: HOUSEHOLD WORK,
R/O: SAVANUR - 581 118.
HAVERI DISTRICT.
2. STATE OF KARNATAKA
REPRESENTED BY THE
DEPUTY COMMISSIONER,
DHARWAD DISTRICT,
DHARWAD - 580 001.
3. THE DEPUTY COMMISSIONER
DHARWAD DISTRICT,
DHARWAD - 580 001.
...RESPONDENTS
(BY SRI B.S. KAMATE, ADVOCATE FOR R1,
SRI M. H. PATIL, HCGP FOR R2 AND R3.)
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RSA No.859 of 2008
THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 01.01.2008 PASSED IN
R.A.NO.18/2007 ON THE FILE OF THE DISTRICT JUDGE, HAVERI,
PARTLY ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT AND DECREE DATED 28.02.2007 PASSED IN
O.S.NO.6/1999 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE
(SR.DN.) AND J.M.F.C., HAVERI.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
13.07.2023 COMING ON FOR PRONOUNCEMENT, THIS DAY
COURT DELIVERED THE FOLLOWING.
JUDGMENT
This appeal is filed by the plaintiff-appellant Corporation challenging the judgment and decree passed by the learned District Judge, Haveri in R.A.No.18/2007 whereby the learned District Judge has partially allowed the appeal.
2. For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the Trial Court.
3. The brief factual matrix leading to the case of the plaintiff are that the suit property originally belongs to Nawab of Savanur. The Deputy Commissioner, Dharwad was -3- RSA No.859 of 2008 administering suit property under the provisions of the Bombay Court of Wards Act, 1905 (for short "the Court of Wards Act") and plaintiff-Corporation, which is a Government undertaking, requested Deputy Commissioner, Dharwad District to grant suit property under Section 27 of the Act with the permission of Government of Karnataka for construction of bus Depot at Savanur in the year 1992. Accordingly, Deputy Commissioner granted suit property to plaintiff-Corporation by fixing price at Rs.38,36,000/- including building, well, trees, zinc sheets and other movables, which were situated in suit property. The possession of the suit schedule property along with two godowns, one ginning mill, one building i.e., guards house and 42 trees was delivered to plaintiff-Corporation on 29.07.1992 by defendant No.2 through his subordinates officers. Since then plaintiff-Corporation is in actual possession and enjoyment of the suit schedule property and the name of plaintiff-Corporation is mutated in the records. That, defendant No.3 had filed O.S.No.171/1984 for declaration that she is the sole legal heir to the late Mohammed Ali Khan Biradar Nawab and that she is entitled -4- RSA No.859 of 2008 to claim estate of the deceased. The said suit came to be decreed. Though the alienation of suit schedule property in favour of plaintiff-Corporation was within the knowledge of present defendant No.3, she had not impleaded present plaintiff as a party in the said proceedings. Being aggrieved by the said judgment and decree, present defendant No.2 preferred Regular Appeal before Civil Court, Haveri in R.A.No.16/1996 and defendant No.3 filed an appeal in R.A.No.73/1994. Both the Regular Appeals were disposed on 17.12.1998. The present plaintiff was not added in the said proceedings in anyway. Defendant No.3 is threatening plaintiff-Corporation by interfering in possession of the suit schedule property. Hence, the plaintiff has filed the suit seeking declaration that the judgment and decree passed by Munsiff Court, Savanur, in O.S.No.171/1984 dated 31.10.1994 is not binding on the rights of the plaintiff and consequential relief of injunction.
4. Defendant Nos.1 and 2 did not contest the suit, while defendant No.3 filed written statement denying the plaint allegations. It is contended that defendant No.1 had no authority to accord sanction under Section 27 of the Court -5- RSA No.859 of 2008 of Wards Act for the benefit of the Ward when the no Ward was existing. It is also asserted that defendant No.1 is bound to handover all the properties of the Court of Wards to the nearest legal heir and O.S.No.171/1984 filed by the present defendant No.3 was decreed with costs. Defendant No.2 had preferred an appeal in R.A.No.16/1996 which was dismissed. It is asserted that there is no valid document for transfer of the suit property by defendant No.2 to plaintiff-Corporation nor there is no any registered document. It is also asserted that no sanction was accorded by defendant No.2 to transfer the property in favour of the plaintiff-Corporation and no publication of the Government order was made in the official gazette. It is also asserted that any transfer without following legal procedure is hit by Section 52 of the Transfer of Property Act, 1882 (for short "T.P.Act") and it is void. Hence, defendant No.3 has prayed for dismissal of the suit.
5. On the basis of these pleading, following issues have been framed by the Trial Court:
"1) Whether plaintiff proves that judgment and decree passed in O.S.No.171/84 on the file of C.J.-6- RSA No.859 of 2008
(JR.DN.) Savanur dtd.31.10.94 is null and void and ineffective and not binding on him?
2) Whether plaintiff further proves that he has been in lawful possession of the suit schedule property on the date of suit?
3) Whether deft.No.3 proves that deft.No.2 without any sanction of the Government and without following the legal procedure has transferred the suit schedule property in favour of the plaintiff and the same in hit by sec.52 of T.P. Act and Sec.27 of Court of Wards Act?
4) Whether suit is barred by limitation?
5) Whether plaintiff is entitled for the relief sought for?
6) What decree or order?"
6. On behalf of the plaintiff an officer PW.1 was examined and Ex.P.1 to Ex.P.14 were marked. One witness was examined as DW.1 and Ex.D.1 to Ex.D.10 were relied by defendant No.3. The Trial Court after appreciating the oral and documentary evidence and after hearing the arguments, answered issue Nos.1, 2 and 5 in the affirmative, while issue Nos.3 and 4 were answered in the negative and ultimately decreed the suit of the plaintiff.
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7. Being aggrieved by this judgment and decree, defendant No.3 filed R.A.No.18/2007 on the file of the learned District Judge, Haveri and the learned District Judge, Haveri, after re-appreciating the oral and documentary evidence, partly allowed the appeal and by setting aside the declaratory relief but confirmed the finding regarding injunction against defendant No.3 until the plaintiff is evicted by due process of law.
8. Being aggrieved by this divergent view taken by the First Appellate Court, this appeal is filed.
9. Heard the arguments advanced by the learned counsel for the appellant and learned counsel for the respondent at length. Perused the material records placed before the Court.
10. This Court while admitting the appeal on 28.01.2010 has framed the following substantial question of law.
i) Whether the Lower Appellate Court is justified in holding that the plaintiff was not entitled to a decree for declaration notwithstanding the fact that the decree passed in O.S.No.171/84 was not -8- RSA No.859 of 2008 binding on the appellant/plaintiff as the appellant/plaintiff was not a party in the said suit?
ii) Whether the Lower Appellate Court is justified in restricting the decree for permanent injunction so long as the respondent No.1/defendant No.3 demands actual possession of the property either by obtaining a decree or by executing the decree also passed when the subsequent suit would be barred under Order 2 Rule 2 CPC?
11. The learned counsel for the appellant would contend that Ex.P9 is the commencement of litigation and O.S.No.171/1984 is filed under Bombay Court of Wards Act, 1905. It is asserted that the Ward has died in 1968 itself and suit is after 12 years. He would contend that the Trial Court has appreciated the oral and documentary evidence in proper perspective and decreed the suit considering the possession. He would also contend that the compromise entered in a suit filed in representative capacity discloses that defendant No.3 has waived her right and in all proceedings the present plaintiff was not a party though defendant No.3 had knowledge regarding transfer. It is further contended that defendant No.3 has abandoned her -9- RSA No.859 of 2008 claim by entering into compromise and on the basis of observations made in the writ appeal, now defendant No.3 is interfering with plaintiff's possession over the suit property. It is contended that O.S.No.171/1984 is not in respect of declaration of title but it is pertaining to declaration of heirship of deceased ward. It is further asserted that in the original suit no declaration of title and possession were sought and the suit is hit by Order II Rule 2 CPC and admittedly, defendant No.3 is not in possession and the relief of possession is not claimed, which is now barred by law of limitation. It is also contended that provisions of Section 52 the T.P. Act, are not applicable as wrongly observed by the Appellate Court. He would also contend that if there is any violation of provisions of the Court of Wards Act, then same could have been withdrawn by official gazette, which has not taken place. He would also contend that there is a provision for appeal against the order of sanction for sale and under Section 45 of the Court of Wards Act, there is a bar for civil suit, but the Appellate Court has not considered all these aspects and mechanically rejected the declaratory claim of the plaintiff only on account of certain observations made in
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RSA No.859 of 2008the writ appeal and on the ground that regular second appeal is filed by the appellant-plaintiff herein, but the regular second appeal is filed wherein the decree was operating against the plaintiff herein, who was not a party. The regular second appeal filed by the present plaintiff was dismissed only on the ground that it only declares the heirship and it will not declare the title and will not affect the plaintiff in any way, but the way the defendant No.3 is making efforts will definitely infringe the right of the plaintiff. Hence, he would contend that the First Appellate Court has erroneously altered the judgment and decree of the Trial Court and sought for allowing the appeal.
12. The learned counsel for the respondent would contend that O.S.No.171/1984 was decreed and the regular second appeal filed by the State as well as corporation/plaintiff herein came to be dismissed. He would contend that though the Trial Court decreed the suit, the First Appellate Court allowed the appeal in part by keeping open the possession issue. It is also asserted that the government has undertaken not to alienate, but later on, transferred the property to KSRTC and the transfer is invalid
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RSA No.859 of 2008and no title is passed as no sanction was forthcoming. It is also contended that the plaintiff cannot challenge the binding nature of O.S.No.171/1984 as in the writ petition, KSRTC was party and dispute is only in respect of Paradi land. Hence, he would seek for dismissal of the appeal.
13. Having heard the arguments and perusing the records, it is evident that there were chain of litigations between defendant No.3 and the Government. The litigation commenced by filing of O.S.No.171/1984 for declaration that defendant No.3 was only nearest legal heir of deceased Nawaj Khatu and the said suit came to be decreed. The regular appeals filed by the State in R.A.No.16/1996 and R.A.73/1994 came to be dismissed. Even Regular Second Appeals were dismissed. It is evident from the records that certain few persons interested in the suit property along with other property also filed representative suit in O.S.No.39/2001, which was dismissed, which is evident from Ex.P9. It is also evident that in the said suit, a compromise petition was filed under Ex.P14. At the same time, it is also important to note here that in all these proceedings the present plaintiff was not a party. No doubt, one Regular Second Appeal was also filed by the
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RSA No.859 of 2008plaintiff, but that was dismissed only on the ground that the suit was only in respect of heirship and not in respect of any property and it will not affect the interest of the plaintiff herein.
14. Admittedly, the suit property is in possession of the plaintiff. Ex.P1 is the Records of Rights pertaining to suit property. Ex.P9 is the judgment in O.S.No.171/1984 wherein the plaintiff was not a party. No doubt, the present suit property is one of the properties mentioned in the said suit. But no declaration was sought in the said suit regarding title of defendant No.3 over the suit property.
15. Further, in Regular Second Appeal, this Court has held that no substantial questions of law were involved in the appeals and scope of the suit was only to declare who was the nearest relative/heir of deceased Nawaj Khatu. Admittedly, in the said suit no declaratory relief regarding title over the suit schedule properties were sought. Though it is all along argued that there was an injunction against the government in O.S.No.171/1984, the records disclose that I.A.No.9 was filed seeking injunction and it came to be allowed in part except present suit schedule property and there was also an observation in the said order that the suit property was already
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RSA No.859 of 2008sold in favour of present plaintiff-corporation and possession was delivered. When this being the case, it was the duty of defendant No.3 to implead the present plaintiff in the said suit but that was not done.
16. Apart from that defendant No.3 has not claimed possession from the plaintiff or from any other government official or institution at any point of time. The validity of alienation of suit property was not considered in O.S.No.171/1984. It is an admitted fact that suit property was granted by Deputy Commissioner to plaintiff-Corporation by fixing value of Rs.38,60,000/- and Rs.7,14,357/- is already deposited. Further, it is also evident that the Corporation is in possession of the suit schedule property from 29.07.1992. Ex.P1 and Ex.P2 further disclose that the name of plaintiff- corporation appeared to the suit schedule property and the plaintiff-corporation has also taken electricity connection.
17. DW1 is the power of attorney holder of Defendant No.3 and defendant No.3 did not enter into witness box. Admittedly, defendant No.3 has not challenged the transaction between the plaintiff-corporation and the government and if
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RSA No.859 of 2008she is really aggrieved, she could have challenged the said transaction but that was not done.
18. Much arguments have been advanced regarding invalidity of transaction as it is hit by Section 27 of the Court of Wards Act, since the sanction of the government was not obtained. Section 27 of the Court of Wards Act, reads as under:
"27. The Court of Wards may sell, exchange, mortgage, charge or let the property of a Government ward, and may do all such things as it may judge to be best for the benefit of the property and the advantage of the Government ward :
Provided that - (a) the previous sanction of the Commissioner shall be required to any sale, exchange or mortgage of or charge on, immovable property and to any lease of such property for a term exceeding ten years, and
(b) where one-third of the immovable property of a Government ward has been sold or exchanged no further sale or exchange shall be made."
19. Admittedly, government itself is ward and asper proviso, sanction of the government is not required and as per proviso (a), the sanction of the Commissioner is required. Admittedly, in the instant case, the transfer is made by the Deputy Commissioner himself and under
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RSA No.859 of 2008Section 27 of the Court of Wards Act, the Deputy Commissioner himself is empowered. As such, when he himself transfers the property, the question of sanction does not arise at all.
20. Further, under Section 39 of the Court of Wards Act, after the death of any government ward, the succession to his property or any part thereof is under the superintendence of the government and a person who claims the property is required to substantiate the claim by filing a suit against all the claimants. Admittedly, in the instant case, the superintendence of the property is with the Deputy Commissioner on behalf of the state and under Section 43 of the Court of Wards Act, there is a provision for appeal against every order passed under this Act. Defendant No.3 has not challenged the order of the Deputy Commissioner transferring the property in favour of the plaintiff-corporation and nothing prevented defendant No.3 from challenging this order under Section 43 of the Court of Wards Act. Without challenging this order, defendant No.3 cannot lay any claim and interestingly, she did not seek declaration of her title
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RSA No.859 of 2008over the suit property but only sought declaration regarding she being the nearest heir.
21. Apart from that under Section 45 of the Court of Wards Act, there is a clear bar for institution of civil suit in respect of exercise of discretion conferred under this Act or against Court of wards or public servant. Admittedly, the property is transferred in the name of plaintiff-corporation. The plaintiff-corporation is not in possession of the suit property as an agent of the government, but the plaintiff is possessing the property in individual capacity having acquired it. Apart from that, defendant No.3 has also not challenged the sale deed nor claimed any compensation/damages. Though the plaintiff is in possession since 1992, no possession is sought from the plaintiff by challenging the order of the Deputy Commissioner before appropriate forum. Admittedly, defendant No.3 is not in possession. The entire case of defendant No.3 is based on certain observations made in the writ appeal.
22. Writ Appeal No.295/2002 was filed by defendant No.3 herein against the order passed in Writ Petition
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RSA No.859 of 2008No.33190/2001. She has admittedly filed the writ petition seeking possession of the suit property. The writ petition came to be dismissed and then writ appeal is filed. The writ petition itself was filed on the basis of decree passed in O.S.No.171/1984. When the writ petition was dismissed, defendant No.3 filed writ appeal and while dismissing the writ appeal, the Court has observed that the appellant is free to execute the decree for recovery of possession as per law. Merely on the basis of this observation, now defendant No.3 is asserting certain rights. Admittedly, the observation made in the writ appeal cannot be a ground for defendant No.3 to ascertain her title or interest over the suit property. Admittedly, she has not filed any suit for declaration of her title over the suit property and O.S.No.171/1984 is filed only for declaration of her heirship. Even she has not filed any suit for possession and as such, the question of she seeking possession from the corporation on the basis of a decree in O.S.No.171/1984 does not arise at all as plaintiff-corporation was not a party in the suit. She has not even challenged the order of Deputy Commissioner transferring the property in favour of the plaintiff. Hence, the entire approach of the First
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RSA No.859 of 2008Appellate Court is erroneous. The Trial Court has discussed all these aspects and has rightly decreed the suit.
23. The First Appellate Court only on the basis of the fact that regular second appeal came to be dismissed and held that the plaintiff is estopped from contending that decree in O.S.No.171/1984 is not binding on it. Even for the sake of arguments, decree in O.S.No.171/1984 is held to be binding on the plaintiff in view of the fact that the transfer was during the pendency of the suit, that was only a suit for declaration of heirship but not for declaration of title over the suit property. Hence, the provisions of Section 52 of the Act of the T.P. Act cannot be made applicable.
24. Interestingly, the First Appellate Court has held that provisions of Section 42 of the Court of Wards Act are not applicable on the ground that ward is dead, but the issue is regarding claims are yet to be decided and matter was pending and as such, the observation of the Appellate Court that Section 42 of the Court of Wards Act was not applicable is erroneous. Unless the right of the claimants or interested persons are decided, the Court of Ward is legally bound by
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RSA No.859 of 2008the provisions of the Act and hence, observations of the Appellate Court in this regard are erroneous.
25. The learned District Judge has observed that the Trial Court ought to have taken note of subsequent proceedings, which were ended in compromise and dismissal of suit. Though representative suit is filed, but there is no evidence to show that representative suit was filed with leave and public notice was issued calling interested persons to contest the matter. Further, that suit is also ended in compromise and hence, the observation of the First Appellate Court that the judgment in O.S.No.39/2001 is also binding upon the plaintiff is erroneous. There is no evidence produced to show that leave of the Court was obtained before instituting a public interest litigation and paper publication came to be issued.
26. Though the Appellate Court has observed that the judgment and decree in O.S.No.171/1984 entitles defendant No.3 to claim the estate of deceased Nawaj Khatu, but it only declares her as a legal heir of deceased Nawaj Khatu. There was no declaration in respect of any property or title of
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RSA No.859 of 2008the defendant No.3 including the suit property. Merely because the property is shown there, it does not mean that declaratory relief was granted. The entire approach of the Appellate Court in this regard was erroneous.
27. The learned counsel for defendant No.3 placed reliance on a decision reported in AIR 1950 Mysore 77 (Sannamma v. Erappa minor by guardian) but the facts and circumstances of the said case are entirely different as in the said case, the relief of declaration of title was sought, but in the instant case, no such relief is sought and as such, the principles enunciated in the above cited decision cannot be made applicable to the facts and circumstances of the case in hand.
28. The learned counsel for respondent/defendant No.3 has further placed reliance on a decision reported in ILR 1939 Page 986 (K. Sundaresa Iyer v. The Sarvajan Sowkiabi Virdhi Nidhi), but the said suit was for possession of jewels, which were in possession and sub- divisional Magistrate, who was required to handover them. But the said facts and circumstances are entirely different. In
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RSA No.859 of 2008the instant case no suit for possession was filed and the said principles will not assist defendant No.3 in any way.
29. The learned counsel for defendant No.3 further placed reliance on a decisions reported in AIR 1951 Nagpur 327 (Abid Ali Khan v. Secretary of State), AIR 915 All. 104 (Jagannath Gir v. Tirugana Nand), AIR 1973 Mysore 131 (Mohammad Ali Abdul Chanimomin v. Biasahemi Kom Abdulla Saheb Momin and another, AIR 1946 Patna 143 (Kamakshya Narain Singh v. Arjun). But the facts and circumstances of the said cases are entirely different and admittedly, in the instant case, no declaratory relief was sought over the suit property and no possession was sought in O.S.No.171/1984 and as such, the principles enunciated in the above cited decisions will not come to the aid of the respondent-defendant No.3 in any way.
30. The learned counsel for respondent-defendant No.3 further placed reliance on a decision reported in (1994) 2 SCC 14 (Sulochana Amma v. Narayanan Nair) but it is pertaining to principles of res-judicata. Admittedly,
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RSA No.859 of 2008the issue involved in the earlier suit in O.S.No.171/1984 is only in respect of declaration of heirship and not in respect of title over the suit property and hence, the said decision will also not come to the benefit of defendant No.3 in any way. He has further placed reliance on a decision reported in 2013 (5) SCC 397 (Thomson Press v. State of Haryana) and the said principles were under the provisions of Specific Relief Act and the facts and circumstances are entirely different. In the instant case, the transfer was under the provisions of section 27 of the Court Wards Act and hence, the said principles will not come to the aid of defendant No.3 in any way.
31. The learned counsel for defendant No.3 further placed reliance on a decision reported in 2012 (1) SCC 656 (Suraj Lamp v. State of Haryana), but it was in respect of provisions under the Transfer of Property Act by a GPA Holder. But in the instant case, the transfer is under Section 27 of the Court of Wards Act, which provides the commissioner an authority to transfer and hence, the said principles will not assist defendant No.3 in any way.
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RSA No.859 of 2008
32. The learned counsel for the appellant/plaintiff placed reliance on a decision reported in (2007) 8 SCC 600 (Shiv Kumar Sharma v. Santosh Kumari) and argued that when defendant No.3 is entitled to seek possession having knowledge in O.S.No.171/1984 but failed to do so, the suit is hit by provision of Order II Rule 2 of CPC and suit in O.S.No.171/1984 itself is not maintainable. But the facts and circumstances are entirely different and the said principles cannot be directly made applicable to the case in hand since the said suit was in respect of declaratory relief of heirship and after disposal of the said suit, the suit for possession or declaration of title could have been filed, which was not done.
33. The learned counsel for the plaintiff further placed reliance on a decision reported in (2008) 11 SCC 753 (Dadu Dayalu Mahasabha, Jaipur v. Mahant Ram Niwas and another), which is again under Order II Rule 2 of CPC and cannot be directly made applicable to the case on hand. The learned counsel for the plaintiff further placed reliance on a decision reported in AIR 1972 SC 2685 (Ram Saran
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RSA No.859 of 2008and another v. Smt. Ganga Devi) wherein it is observed as under:
"Specific Relief Act (1 of 1877), S.42 - Where the defendant is in possession of some of the suit properties and the plaintiff in his suit does not seek possession of those properties but merely claims a declaration that he is the owner of the suit properties, the suit is not maintainable."
34. The said principles are directly applicable as the plaintiff/defendant No.3 in O.S.No.171/1984 has only sought declaration of her heirship and she has neither sought declaration of her title nor possession of the suit property and hence, basically, the said suit in O.S.No.171/1984 was hit by Section 42 of the Specific Relief Act.
35. The learned counsel for the appellant-plaintiff further asserts that provisions of Section 52 of the T.P. Act can be made applicable only when the right of immovable property is directly and specifically a question in earlier instituted suit but admittedly in O.S.No.171/1984, the title of the property was not an issue.
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RSA No.859 of 2008
36. The transfer was under Section 27 of the Court of Wards Act and the said order was not challenged by defendant No.3 before any competent authority under Section 43 of the said Act. There is a bar under Section 45 of the Act to file a suit and though the suit was filed earlier to transfer, nothing prevented from challenging the said transfer but the conduct of defendant No.3 discloses that she is filing writ petition seeking possession of the suit property. Admittedly, the plaintiff is in possession of the suit property since long time which was within the knowledge of defendant No.3. She has not challenged the transfer nor filed any suit for possession. Even having knowledge of transfer, defendant No.3 has not impleaded the plaintiff in O.S.No.171/1984 and injunction was not in respect of suit property in the said suit, since by that time, transfer was already made and that was not challenged under the provisions of the Court of Wards Act. Under such circumstances, at a belated stage, defendant No.3 has no locus-standi to challenge the transfer or interfere with the possession of the plaintiff-corporation and having knowledge, without impleading the plaintiff-corporation in earlier suit,
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RSA No.859 of 2008defendant No.3 cannot seek either possession or contend that it is binding on plaintiff. Even if it is binding, now decree has nothing to do with the rights of the plaintiff-appellant herein.
37. The entire approach of the learned Appellate Court is erroneous and arbitrary so far as it relates to declaratory relief. The Trial Court has appreciated the oral as well as documentary evidence in proper perspective and has rightly decreed the suit of the plaintiff but the First Appellate court has reversed the said finding without proper or reasonable grounds. Looking to these facts and circumstances, the judgment and decree passed by the First Appellate Court calls for interference. Looking to the facts and circumstances of the case, both the substantial questions of law are answered in the negative and as such the appeal needs to be allowed. Accordingly, I proceed to pass the following:
ORDER The appeal is allowed.
The impugned judgment and decree passed by the District Judge, Haveri in R.A.No.18/2007
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is set aside and the judgment and decree passed by the Additional Senior Civil Judge, Haveri in O.S.No.6/1999 is restored in its entirety.
Under such circumstances, there is no order as to costs.
In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration and are disposed of accordingly.
Sd/-
JUDGE SSP-paragraphs 1 to 10 YAN-paragraphs 11 till end.