1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 10 TH DAY OF OCTOBER 2014 BEFORE THE HON'BLE MR. JUSTICE BUDIHAL. R.B REGULAR SECOND APPEAL NO.932 OF 2007 (DEC) BETWEEN: N.V. Gurumurthy Reddy, S/o. Veera Reddy, Aged about 55 years, R/at Neralur Village, Attibele Hobli, Anekal Taluk-562 106. .. APPELLANT (By Sri. Reuben Jacob & Sri. R.S.Prasanna Kumar, Advs.) AND 1. Smt. Sanjeevamma, W/o. Obalaiah, Aged 50 years, 2. Shri. B.H. Amaranarayanna, S/o. Obalaiah, Aged 30 years, Both are R/at Balagaranahalli Village, Attibele Hobli Anekal Taluk-562 106.
Transcript
1
IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS THE 10TH DAY OF OCTOBER 2014
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL. R.B
REGULAR SECOND APPEAL NO.932 OF 2007 (DEC)
BETWEEN: N.V. Gurumurthy Reddy, S/o. Veera Reddy, Aged about 55 years, R/at Neralur Village,
2. Shri. B.H. Amaranarayanna, S/o. Obalaiah, Aged 30 years, Both are R/at Balagaranahalli Village, Attibele Hobli
Anekal Taluk-562 106.
2
3. Shri. Papaiah, S/o. Vandaiah Major.
4. Shri. Narayanappa, S/o. Vandaiah, Major Both are R/at No. 81, 9th Cross,
3rd Main, Prakesh nagar, Bangalore-560 010.
5. Shri. Kavellappa, S/o. Kempaiah, Aged about 50 years,
6. Shri. Narayanappa
S/o. Kempaiah, Aged 45 years,
7. Shri. Rajanna @ Rajappa, S/o. Kempaiah, Aged 35 years. Respondents 5 to 7 are R/at Balagaranahalli, Attibele Hobli,
Anekal Taluk-562 106. ..RESPONDENTS
(By Sri. K. Shivaji Rao, Adv. for R1,R2 & R4 R3 & R8 abated v/o. dt 30/08/2011, R6 & R7 are served) This Regular Second Appeal is filed under Section
100 of CPC against the Judgment and Decree dt.16.12.2006 passed in R.A. No.6/2000 on the file of the Sessions Judge, Fast Track Court-II, Bangalore
3
Rural District, Bangalore, dismissing the appeal filed against the judgment and decree dated 18.12.1999 passed in O.S.No.187/1991 on the file of the II Addl. Civil Judge (Sr. Dn.) Bangalore Rural District,
Bangalore, allowing and decreeing the suit for declaration and relief of consequential permanent injunction.
This Regular Second Appeal having been heard and reserved for judgment, coming on for
pronouncement of judgment, this day, the Court delivered the following:
JUDGMENT
This regular second appeal is preferred by the
appellant-defendant No.6 being aggrieved by the
judgment and decree dated 16.12.2006 passed by the
Fast Track Court No.II, Bangalore Rural District,
Bangalore in R.A.No.6/2000 upholding the judgment
and decree dated 18.12.1999 passed by the Court of the
II Addl. Civil Judge (Sr.Dn.), Bangalore Rural District,
Bangalore in O.S.No.187/1991.
2. The brief facts leading to the case are,
respondent Nos.1 and 2 herein were the plaintiffs before
the trial Court. They have filed the suit against the
defendants for the relief of declaration that the sale deed
4
dated 4.9.1991 executed by defendants 3 to 5 in favour
of the 6th defendant as null and void and does not
confer any valid right, title and interest in favour of 6th
defendant and also for declaration that the entries made
in the pahani for the year 1990-91 in respect of the
schedule property in favour of defendants 3, 4 and 5 is
illegal and for consequential relief of permanent
injunction to restrain the defendants 3 to 6 from
interfering with the plaintiffs peaceful possession and
enjoyment of the schedule property. Originally, the suit
was filed by one Obalaiah and after his death, his legal
representatives, respondents 1 and 2 in this appeal,
were brought on record. The plaintiff-Obalaiah and
defendants 1 and 2 are the brothers and they are the
sons of late Vandaiah. Plaintiff’s father late Vandaiah
had two brothers namely Kempaiah and Mallaiah.
Plaintiff’s father Vandaiah and his uncles Kempaiah and
Mallaiah are the sons of one Mallaiah and that Mallaiah
had a brother by name Papaiah. Their father’s name
was Obalaiah. Thus Obalaiah is the great grand father
of the plaintiff and the geneology is described in the
5
sheet annexed to the plaint. Plaintiff’s junior grand
father Papaiah had only one son Chikkamallaiah @
Kantappa and his wife is Seebamma. Chikkamallaiah
and Seebamma gave birth to two sons Papaiah and
Ramachandra. Plaintiff’s father Vandaiah, Kempaiah
and Mallaiah being the brothers along with
Chikkamallaiah constituted a Hindu Joint Family.
Since 30 years, as per the family arrangement, they
were enjoying the property in equal extents distinctly
and separately from each other. One such property
was the land bearing Sy.No.30/2 situate at
Balegaranahalli village measuring 4 acres 35 guntas
which was divided between three sons of late Mallaiah
namely, Vandaiah, Kempaiah and Mallaiah and they
together took 2/3rd share of it and son of Papaiah i.e.,
Chikkamallaiah @ Kanthappa took 1/3rd share in the
said survey number. Thus, 1 acre 11 guntas in the said
survey number fell to the share of Chikkamallaiah and
his wife Seebamma in the family arrangement and
remaining 3 acres 24 guntas was divided between
Vandaiah, Kempaiah and Mallaiah. Plaintiff’s father got
6
37 guntas of land in Sy.No.30/2 and similarly, his
uncles Kempaiah and Malliah got 36 guntas each in
Sy.No.30/2. Mallaiah, his junior uncle had no issues,
he and his wife Muniyamma @ Chikkathayamma sold
their shares in other survey numbers and in Sy.No.30/2
relinquished their entire rights by means of a registered
release deed dated 18.7.1962. Thus, plaintiff became
absolute owner in possession and enjoyment of 36
guntas of land and in actual possession and enjoyment
of schedule property, raising crops thereon. Pahani and
record of rights show his name as owner as well as
cultivator. Defendants 3, 4 and 5 have no right
whatsoever in the said land. They however succeeded
to the share of Kempaiah measuring 36 guntas of land
in Sy.No.30/2. Defendants 3 to 5 have sold their father
Kempaiah’s share of 36 guntas in Sy.No.30/2 in favour
of 6th defendant under a registered sale deed 18.7.1970.
At the time of executing the sale deed, defendants 3 to 5
have described their land with boundaries. Said
boundaries are misleading and have been described so
as to include the property of the plaintiff’s father
7
Vandaiah over which not only the plaintiff as well as
defendants 1 and 2 have right and the same has been in
their joint possession and enjoyment. Description of the
boundaries in the sale deed is wrong. Thus, children of
late Kempaiah i.e., defendants 3, 4 and 5 with illegal
desire and in order to knock off the property of the
plaintiff and his brothers defendants 1 and 2 included
their property while describing the property in the sale
deed dated 18.7.1990. Hence, 6th defendant does not
get any right, title and interest beyond 36 guntas.
Defendants 3 to 6 in collusion with village accountant,
by manipulation, have got altered the entries in the
pahani and included the names of defendants 3 to 5 for
the year 1991 and taking advantage of the entries in the
pahani which was got included by illegal means,
defendants 3 to 5 have sold the schedule property,
falsely representing that they are the owners of the
same, in favour of 6th defendant on 4.9.1991. Neither
defendants 3 to 5 had any right, title or interest in the
said land nor they were in possession of the same.
Hence, the suit.
8
3. Defendant No.6 filed his written statement
contending that the averments made in para Nos.2 and
3 of the plaint are within his knowledge. He has denied
the averments in para No.4 of the plaint and further
denied that the plaintiffs’ father Vandaiah, his uncle
Kempaiah constituted a Hindu Joint Family since about
30 years ago. As per the family arrangements, they are
enjoying the family properties in equal extents distinctly
and separately from each other. It is also denied one
such property is the land in Sy. No.30/2 of Balegarna
Halli measuring 4 acres 35 guntas which is divided into
three portions. Three sons of late Mallaiah together
took 2/3rd share of it and son of Papaiah i.e.,
Chickmallaiah took 1/3rd share out of Sy. NO.30/2.
Further the said three sons of Mallaiah got divided their
shares and they are in enjoyment of 36½ or 37 guntas
in the said survey number. The sketch produced by the
plaintiffs is only a rough sketch prepared by them to
suit their whims and fancies and it has no relevance to
9
the fact and it has no evidentiary values. The
averments in para Nos.5 and 6 of the plaint are also
denied. The registered release deed dated 18.7.1962
under which the plaintiff claim a right to the suit
schedule property has no resemble to the suit schedule
property. Defendant Nos.3 to 5 were in possession and
enjoyment of the suit schedule property including the
entire survey number from their grand father’s time.
The plaintiff has no locus standi to institute a suit.
Regarding para Nos.7 to 9 of the plaint, it is true that
under the registered sale dated 18.7.1990, defendant
Nos.3 to 5 have sold 0.36 guntas out of Sy No.30/2 in
favour of defendant No.6. After the purchase of the
same, revenue records have been changed into the
name of defendant No.6 and he is in possession and
enjoyment of the same without interference from
anybody including the plaintiff and defendant Nos.1 and
2. The said sale deed is also not challenged by them.
Hence, it is a legal and valid transaction. Under the
registered sale deed dated 4.9.1991, defendant Nos.3 to
10
5 have jointly sold the remaining portion of the same in
Sy. No.30/2 measuring 1 acre 4 guntas in favour of
defendant No.6 and Sri. N.G. Krishna Reddy. After the
sale, the revenue records were also changed to the name
of defendant No.6 and N.G. Krishna Reddy. They are in
possession and enjoyment of the property. N.G.
Krishna Reddy one of the joint purchasers is a proper
and necessary party to the proceedings. Hence, the suit
is bad for non joinder of necessary parties. Neither the
plaintiff nor defendant Nos.1 and 2 have any right title
or interest nor they are in possession and enjoyment of
the suit schedule property and it is a collusive suit by
plaintiff and defendant Nos.1 and 2 to harass defendant
NO.6 and defendant Nos.3 to 5. There is no cause of
Action. Hence, sought to dismiss the suit.
4. On the basis of the pleadings of the parties, the
trial court framed the following issues:
11
1. Whether the plaintiff proves that plaint
schedule property was his ancestors joint
family property?
2. Whether the plaintiff proves that he got
37 guntas of land in sy.No.30/2 of
Balegaranahalli through his father?
3. Whether the plaintiff proves that he got
36 guntas of land in Sy.No.30/2 by release
deed dated 18.7.1962 executed in his favour
by his junior uncle Mallaiah and his wife
Muniyamma?
4. Whether the plaintiff proves that the
Defendants 3 to 5 have sold the plaint
schedule property in favour of d-6 by
registered sale deed dated 4.9.1991 falsely
representing that they are the owner of plaint
schedule property?
5. Whether the plaintiff proves that the
sale deed dated 4.9.91 executed by D3 to d5
in favour of D6 is null and void and does not
confer any right, title or interest in favour of
the 6th defendant?
6. Whether the plaintiff proves that the
entries made in pahani for the year 1990-91
pertaining to plaint schedule property is
illegal?
12
7. Whether the plaintiff proves that he is
entitled to permanent injunction restraining
D3 to 6 from interfering with the plaint
schedule property?
8. Whether the D3 to 6 prove that the suit
is bad for non joinder of N.G. Krishna Reddy
as a party?
9. What order or decree?
5. After considering the merits of the case, the trial
Court decreed the suit and declared that the sale deed
dated 4.9.1991 executed by defendant Nos.3 to 5 is void
to the extent of D-6 and it does not in any way affects
the rights of plaintiff in the schedule property. The trial
Court has also declared that the entries made in the
pahani for the year 1991 in respect of schedule property
in favour of defendant Nos.3 to 5 and consequent
entries made in the name of defendant No.6 are not
binding on the plaintiff and they do not affect his rights
in the schedule property. The Trial Court has also
observed that the plaintiffs are entitled for relief of
permanent injunction and defendant Nos.3 to 6 were
13
restrained from causing interference to the plaintiffs’
possession and enjoyment of the schedule property.
6. Aggrieved by the judgment and decree passed
by the trial court, defendant No.6 preferred an appeal in
R.A. No.6/2000 before the First Appellate Court
challenging the legality and correctness of the said
judgment and decree. The first appellate Court after
considering the merits of the appeal, ultimately
dismissed the appeal by judgment and decree dated
16.12.2006. Being aggrieved by the said judgment and
decree of the first appellate court, the present appeal
has been preferred.
7. While admitting the RSA, this Court has
framed the following substantial question of law:
“ Whether the Courts below justified in
decreeing the suit of the plaintiff on the
basis of the release deed dated 18.7.1962 ? ”
14
8. Heard the arguments of the learned counsel
appearing for appellant-defendant No.6.
9. Learned counsel has submitted that the land
bearing Sy.No.30/2 is totally measuring 4 acres 35
guntas and the dispute is in respect of 36 guntas of
land. The sale deed under which defendant No.6 has
purchased the property is under Ex.D1, which is also
produced by the plaintiffs as per Ex.P9. Learned
counsel also submitted that as per the case of the
plaintiffs, Mallaiah, the junior uncle of the plaintiff-
Obalaiah was not having issues and hence, said
Mallaiah and his wife have released their right in
respect of 36 guntas of land in Sy.No.30/2 by executing
release deed dated 18.7.1962. In this regard, it is
submitted that in the said release deed, there is no
specific reference about the immovable property and
which immovable property is released and the
boundaries of the said properties are also not
mentioned. Hence, the very identity of the property is in
15
dispute and it is not established by the plaintiffs by
satisfactory material. When the identity of the property
itself is not established, no declaratory decrees can be
granted by the Courts. Plaintiffs have not produced any
document to show that entire property is of Obalaiah,
the great grand father of the plaintiff. Hence, the
plaintiffs have not at all proved their case that the
property was firstly owned by Obalaiah and thereafter,
the sons of Mallaiah namely, Vandaiah, Kempaiah and
Mallaiah together have taken 2/3rd share and
Chikkamallaiah, the son of Papaiah has taken 1/3rd
share in the said property. It is further submitted that
even the plaintiffs have not placed any material either
oral or documentary evidence to show that out of 2/3rd
share, the father of the plaintiff Vandaiah then his
uncles Kempaiah and Mallaiah each have taken to their
share 36.5 or 37 guntas. Even in the absence of such
material, the trial Court as well as the first appellate
Court have accepted the case of the plaintiffs, which is
perverse and capricious. It is further submitted that
16
the property under Ex.D1 has been purchased by
defendant No.6 along with one N.G.Krishnareddy on
4.9.1991, but the said N.G.Krishnareddy, the joint
owner of the property purchased under Ex.D1 has not
been made as a party, though there is a specific
contention of defendant No.6 that suit is bad for non-
joinder of necessary parties. In spite of such
contentions raised and even though there is issue No.8
framed by the trial Court, both the Courts below have
totally ignored this legal aspect and the trial Court has
decreed the suit, which is confirmed by the first
appellate Court and granted declaratory decrees which
is against the mandatory provisions of law. It is further
submitted that though it is contended by the plaintiff
that there was a family partition, but the same has not
been proved with satisfactory material. Even though
there is no cogent and satisfactory oral or documentary
evidence in respect of issue Nos.2 and 3, both the
Courts have held those issues in favour of the plaintiffs.
He has also submitted that Order 1 Rule 6 of CPC is
17
also not considered by both the Courts below. The
appellant has not admitted the correctness of the sketch
Ex.P8 and the joint purchaser Krishna Reddy is still
alive. Hence, it is submitted that the judgment and
decree of the Courts below are illegal and not
sustainable in law and same may be set aside by
allowing the appeal.
10. As against this, learned counsel appearing for
respondents during the course of his arguments has
submitted that there are two sale deeds executed by
defendants 3 to 5 and sale of share of Chikkamallaiah is
under challenge. There is no averment in the written
statement of defendant No.6 regarding the averments
made by the plaintiffs about relinquishment of share of
Chikkamallaiah in favour of the plaintiffs. Regarding
non-mentioning of survey number and the boundaries
in the release deed, such contention was not raised
before the Courts below and it is not permissible to
raise such contention before this Court for the first time
18
in the regular second appeal. The trial Court has
accepted the case of the plaintiffs regarding the release
deed that it relates to the suit schedule property, which
finding is confirmed by the first appellate Court. It is
further submitted that immediately after two months of
execution of the sale deed suit has been filed. After the
death of Krishna Reddy no application is filed by
defendant No.6. The counsel for the appellant has not at
all argued on the findings of the first appellate Court.
There is concurrent finding of facts by the Courts below
and the judgments and decrees passed by the Courts
below are in accordance with law and in accordance
with the oral and documentary evidence produced in
the case. No illegality has been committed nor there is
any perverse or capricious view taken by both the
Courts below. Hence, it is submitted to dismiss the
above appeal.
11. I have perused the averments made in the
pleadings by both the parties before the trial Court, oral
19
and documentary evidence adduced by both the sides,
the judgment and decrees passed by both the courts
below, so also I have perused the averments in the
appeal memorandum and the grounds urged therein
and the decisions relied upon by the learned Counsel on
both sides which are referred above.
12. The plaintiffs have filed the suit seeking
declaration that the sale deed dated 4.9.1991 executed
by defendant Nos.3 to 6 in favour of defendant No.6 as
null and void and does not confer any valid right, title or
interest in favour of defendant No.6 and also for
declaration that the entries made in pahani 1990-91 in
respect of schedule property in favour of the defendant
Nos.3 to 5 is illegal and consequential relief of
permanent injunction to restrain the defendant from
interfering with plaintiffs’ peaceful possession and
enjoyment of the schedule property. By filing the said
suit, respondent Nos. 1 and 2 plaintiffs have challenged
the sale deed dated 4.9.1991 said to have been executed
20
by defendant No.3 to 5 in favour of appellant-defendant
No.6. In the written statement, defendant No.6 took the
specific contention that one of the joint purchasers i.e.,
Sri. N.J. Krishnareddy who is a proper and necessary
party to these proceedings, is not made as a party by
the plaintiffs. Hence, the suit is bad for non joinder of
necessary party and, it is liable to be rejected on this
ground alone. On the basis of the said pleading, the
trial court framed issue No.8 to the effect that whether
defendant Nos.3 to 6 prove that suit is bad for non
joinder of N.G. Krishna Reddy as a party. While
recording the finding on the said issue, the trial Court
has observed in para No.22 of the judgment that no
doubt one N.G. Krishna Reddy is the joint purchaser
but it is important to note that his name is not found in
the RTC and it is only the name of defendant No.6 being
continued since 1995-96. Hence, it cannot be said that
it is bad for non impleading of N.G. Krishna Reddy. It is
also observed by the trial Court that the relief can be
granted against defendant No.6 even in the absence of
21
N.G. Krishna Reddy. It is also observed by the trial
Court that an order against the sale deed dated
4.9.1991 cannot be passed as null and void and
accordingly, recorded the negative finding on issue
NO.8. when even according to the plaintiffs respondent
No.1 and 2, the document Ex.D.1 - sale deed dated
4.9.1991 is admittedly in favour of appellant –
defendant No.6 and N.G. Krishna Reddy and when in
the written statement, the contention has been raised
that without impleading the joint purchaser N.G.
Krishna Reddy, the suit is not maintainable, the trial
court committed the serious error in decreeing the suit
without impleading the said N.G. Krishna Reddy. The
N.G. Krishna Reddy is a necessary and proper party to
the suit. If the suit is only for bare injunction to
restrain the appellant defendant No.6 on the ground
that he alone has caused obstruction to the plaintiffs’
possession and enjoyment of the suit schedule property
in that case, the relief of permanent injunction could
have been granted against defendant No.6. But in the
22
suit, the relief claimed is the declaration that the sale
deed dated 4.9.1991 is to be declared as null and void.
If that is so, such a relief cannot be granted by the
Court without impleading the parties who are the
purchasers under the said document. Perusing the
pleadings of the parties and the evidence on both sides,
it is not the case of both sides that when the suit was
filed, the said N.G. Krishna Reddy was no more nor he
was having legal representatives. On this point, the
entire evidence is silent.
13. Even in the judgment while recording the
findings on issue No.8, it is not the finding of the trial
Court that the joint purchaser N.G.Krishnareddy is no
more or there are no legal representatives. But on the
contrary, it is the observation made by the trial Court
while recording the finding on issue No.8 that though
the sale deed is in the name of two purchasers i.e.,
defendant No.6 and one N.G.Krishnareddy, but looking
to the RTC entries, they are only in the name of
23
defendant No.6 and the suit can be proceeded with even
in the absence of N.G.Krishnareddy. This view of the
trial Court is incorrect, because, even if there is no
entry of the name of N.G.Krishnareddy in the RTC
extracts, but the sale deed Ex.D1 is a title deed, which
confers title on the purchaser under the said deed and
when the very sale deed dated 4.9.1991 is sought to be
declared as null and void, it cannot be done behind the
back of one of the joint purchaser without impleading
him as a party to the proceedings. Hence, the suit
brought as against one of the joint purchaser is not
maintainable.
14. I have also perused the decision relied upon
by learned counsel for the respondents reported in AIR
1993 SC 1587 in the case of Laxmishankar Harishankar
Bhatt Vs. Yashram Vasta (dead) by L.Rs., wherein their
lordships have laid down the preposition as under:
“ Civil Procedure Code(1908), O.1, R.9-
Dismissal for non-joinder of necessary
parties-Suit for recovery of possession -
24
Plaintiff-purchaser claiming to have acquired
entire ownership of suit property-Plea by
defendant-tenant that suit is liable to be
dismissed for non-joinder of co-owners - No
averments, however, in written statement as
to who are other co-owners and what rights
they claim - Suit cannot be dismissed for
non-joinder on such vague plea. ”
15. In the said decision, the Hon’ble Supreme
Court has observed that there are no averments in the
written statement as to who are the other co-owners
and what rights they claim. Therefore, it is held that
suit cannot be dismissed for non-joinder on such vague
plea. But in the case on hand, in the written statement
there is a specific pleading that Ex.D1 dated 4.9.1991 is
in the name of defendant No.6 and also one
K.G.Krishnareddy who are the joint purchasers under
the said deed. Deed is also produced before the Court,
tendered in evidence and marked as Ex.D1. When that
is so, it cannot be said that there is no plea raised by
defendant No.6 in his written statement or it is a vague
25
plea. Therefore, the above decision relied upon by the
learned counsel for the respondents is not applicable to
the facts of the present case.
16. The trial Court while framing the issue and
even thereafter, in view of issue No.8, ought to have
given an opportunity to the plaintiffs to implead said
N.G.Krishnareddy as necessary and proper party. Even
after giving such opportunity, if the plaintiffs did not
implead the said N.G.Krishnareddy in the suit as a
necessary and proper party, the Court could have
proceeded with in the matter. Therefore, only on the
ground that N.G.Krishnareddy is not made as a party to
the suit, the suit itself cannot be dismissed by the
Court. It is necessary to give opportunity to the
plaintiffs-respondents 1 and 2 to take steps in that
connection.
17. In view of my observations pertaining to
issue No.8 framed in the suit, the question of
26
considering other merits of the case does not arise at
all. Hence, I am of the opinion that matter will have
to be remanded to the trial Court by giving an
opportunity to the respondents 1 and 2-plaintiffs to
implead N.G.Krishnareddy and then the trial Court
has to decide the matter afresh.
18. Hence, appeal is allowed. The judgment
and decree dated 18.12.1999 passed in
O.S.No.187/1991 on the file of II Addl. Civil Jude
(Sr.Dn), Bangalore Rural District, Bangalore in
allowing the suit and the judgment and decree dated
16.12.2006 passed in R.A.No.6/2000 on the file of
Sessions Judge, Fast Track Court-II, Bangalore Rural
District, Bangalore in confirming the said Judgment
and decree of the trial Court are hereby set aside and
