Karnataka High Court

Sri A Ananda vs Sri A Krishna Reddy on 7 January, 2021

Author: Krishna S.Dixit

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  IN THE HIGH COURT OF KARNATAKA, BENGALURU

       DATED THIS THE 7TH DAY OF JANUARY, 2021

                      BEFORE

       THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT

       WRIT PETITION NO. 13456 OF 2020(GM-CPC)

BETWEEN:

SRI A ANANDA
S/O. LATE ABBAIAH @ YAMALURU ABBAIAH,
AGED ABOUT 58 YEARS,
RESIDING AT SY. NO. 61/2,
SINGASANDRA VILLAGE,
BEGUR HOBLI,
BANGALORE SOUTH TALUK,
BANGALORE-560 068.
                                       ... PETITIONER
(BY SRI. S M CHANDRASHEKAR, SENIOR COUNSEL FOR
    SRI. VISWANATHA N S, ADVOCATE)

AND:

1. SRI A KRISHNA REDDY
   S/O. ANKAPPA REDDY,
   AGED ABOUT 73 YEARS,
   R/AT CHIKKANAYAKANAHLLI,
   VARTHUR HOBLI,
   BANGALORE SOUTH TALUK,

  AND ALSO AT
  NO.218/3, 1ST MAIN ROAD,
  14TH CROSS, A.
  KRISHNAPPA NAGAR AND KODANDARAMANAGAR,
  VARTHUR HOBLI,
  BANGALORE SOUTH TALUK,
  BANGALORE-560 035.

2. SRI. JAYAPPA
   S/O. LATE ABBAIAH,
   AGED ABOUT 78 YEARS,
   RESIDING AT REVENUE LAYOUT,
   BEHIND PATALAMMA TEMPLE,
   SINGASANDRA VILLAGE,
   BEGUR HOBLI,
   BANGALORE-560 068.
                           2


3. SRI. GOPALA REDDY
   S/O. LATE ABBAIAH,
   AGED ABOUT 66 YEARS,
   RESIDING AT REVENUE LAYOUT,
   BEHIND PATALAMMA TEMPLE,
   SINGASANDRA VILLAGE,
   BEGUR HOBLI,
   BANGALORE-560 068.

4. SRI. A. NAGESHA
   S/O. LATE ABBAIAH,
   AGED ABOUT 55 YEARS,
   RESIDING AT REVENUE LAYOUT,
   BEHIND PATALAMMA TEMPLE,
   SINGASANDRA VILLAGE,
   BEGUR HOBLI,
   BANGALORE-560 068.

5. SRI. A. MANJUNATHA
   S/O. LATE ABBAIAH,
   AGED ABOUT 48 YEARS,
   RESIDING AT REVENUE LAYOUT,
   BEHIND PATALAMMA TEMPLE,
   SINGASANDRA VILLAGE,
   BEGUR HOBLI,
   BANGALORE-560 068.
                                      ...RESPONDENTS

(BY SRI. H R ANANTHAKRISHNAMURTHY, ADV., FOR C/R1;
    R2,R3, R4 ARE SERVED & UNREPRESENTED;
    SRI. KAMARAJU, ADVOCATE FOR R5)

      THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH OF THE
COMMON ORDER DATED 09.11.2020 PASSED BY THE
HONBLE LEARNED V ADDL. CITY CIVIL JUDGE AND
SESSIONS JUDGE, BANGALORE (CCH-13) IN EXECUTION
PETITION NO.3751/2019 ON I.A.NO.2 FILED BY THE DECREE
HOLDER/RESPONDENT UNDER SECTION 151 OF CODE OF
CIVIL PROCEDURE AT ANNX-AE (COMMON ORDER) TO THE
WRIT PETITION AND CONSEQUENTLY DISMISS THE
APPLICATION AND ETC.,

     THIS PETITION COMING ON FOR ORDERS THIS DAY
THROUGH VIDEO CONFERENCE, THE COURT MADE THE
FOLLOWING:-
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                        ORDER

The long saga of this case prompts this Court to

preface this judgment with the observation of the Privy

Council, made a century & half ago anguishingly ridiculing

the tardy litigation process in the country; the anguish was

phrased as under:

"These proceedings certainly illustrate what was said by Mr.Doyne, and what has been often stated before, that the difficulties of a litigant in India begin when he has obtained a Decree..."

(The General Manager of the Raj Durbhanga vs. Maharajah Coomar Ramaput Singh, MOORE'S INDIAN APPEALS (1871-

72), VOL.14, Page 605).

2. Petitioner being the Judgment Debtor in

Execution Petition No.3751/2019 is knocking at the doors

of writ court for assailing the order dated 09.11.2020, a

copy whereof is at Annexure-AE, whereby the learned V

Addl. City Civil Judge, Bangalore has directed as under:

"I.A. No.1 filed under Order 39 Rule 1 & 2 CPC r/w Section 151 of CPC by the learned counsel for DHR stands dismissed without cost.

I.A.No.4 filed under Section 6 of the Specific Relief Act by the learned counsel for JDR No.4 is hereby dismissed without cost.

I.A.Nos.2 and 3 filed under Order XXI Rule 32 r/w Section 151 of CPC by the counsel for the applicant/DHR are hereby allowed with cost. The DHR is at liberty to get appoint (sic) a court commissioner as prayed in I.A.No.3 in

accordance with law within 30 days from the date of this order, failing which the office to issue direction to the concerned Bailiff to restore the schedule property to the DHR by demolishing the alleged constructions if any made in the suit schedule property with the help of jurisdictional police at the cost of JDRs within 60 days from the 1st day of December 2020 after completion of present SOP period of our Hon'ble High Court, if steps taken in the office".

3. The first respondent-Decree Holder having

entered caveat through his counsel vehemently resists the

writ petition making submission in justification of the

impugned order and the reasons on which it has been

structured.

4. Having heard the learned counsel for the parties

and having perused the petition papers, this Court

declines to grant indulgence in the matter for the following

reasons:

A. The first respondent's injunctive suit in

O.S.No.6114/1999 filed on 06.08.1999 was resisted by the

petitioner & other respondents herein by filing the Written

Statement on 04.09.1999; the learned trial Judge had

framed three principal issues of which the first one related

to respondent's possession of the suit property; there was

no dispute as to the identity and extent of the said

property and therefore no issue in this regard was framed;

after a full fledged trial, suit came to be decreed on

22.12.2001 with a specific finding as to petitioner's

possession, on the basis of as many as 19 documents

including some registered sale deeds which were more

than two decades old then.

     B.        The above decree was impugned by the

petitioner &      others in RFA No.143/2002 that was

accompanied by an application filed under Order XLI Rule

27 of CPC, 1908 seeking leave to produce additional

evidence; the RFA came to be dismissed by a Division

Bench of this Court on 04.08.2009 reserving liberty to the

petitioner/appellants "to approach a competent Civil Court

seeking a declaration of title, if they so choose ...";

admittedly, this order of the Division Bench has attained

finality, there being no further challenge; it is also

admitted that no such comprehensive suit as permitted by

the Bench has been ever instituted.

C. The trial Court had specifically framed Issue

No.1 as to first respondent-DHr being in lawful possession

of the suit property; he had got marked as many as 19

documents at Ex.P-1 to P-19 in the course of his

deposition as PW-1; this issue was answered in the

affirmative; the Division Bench while dismissing the RFA,

examined in great detail all the 19 documents again and

affirmed the said finding with discussion at para 15 of

aforesaid judgment which itself runs into several pages;

this apart, the Bench also referred to petitioner's father

Sri.Abbaiah Reddy's admission in his Written Statement

filed in the earlier suit in O.S.No.513/1965 to the effect

that he had no right over the suit property herein which

was Item No.3 in the that suit; the said admission binds

the Judgment Debtors herein, who claim under their

father.

D. Even in the RFA no dispute as to the identity &

extent of the suit property was even remotely raised; that

being the position, petitioner is not justified in resisting the

execution proceedings by falsely disputing the identity of

the suit property, now; JDrs dispute as to the identity of

the property and consequent unenforceability of the decree

is only an after-thought fraudulently designed to defeat the

decree; such grounds on which the execution of decree is

being resisted, are also liable to be res judicated; at least

they are barred by constructive res judicata if not the

substantive; even otherwise there is abundant evidentiary

material on record which establishes juridical possession

of the DHr; the learned Judge of the Court below is more

than justified in not placing much reliance on the post

decree documents namely, the sale deed dated 31.12.1999,

Khata Extracts of 2019, Building Sanctioned Plan, and

such other records, since rights of the parties were already

determined after due adjudication and the decision has

attained finality.

E. The first respondent filed Execution Petition in

3751/2019 on 19.10.2019 wherein the petitioner entered

appearance on 17.12.2019; the respondent-DHr had filed

three applications viz., I.A.Nos.1, 2 & 3 for injunction,

police protection and for restoring the property position as

before; petitioner too filed I.A.No.4 u/s.6 of the Specific

Relief Act; all these applications were heard together and

the impugned order has been made dismissing petitioner's

I.A.No.4 and first respondent's I.A.No.1; however

respondent-DHr's I.A.Nos.2 & 3 have been favoured; an

option is given to the respondent to have a Court

Commissioner appointed within thirty days; if option is not

exercised, the Court bailiff is directed to restore the

schedule property to the respondent-DHr by demolishing

the structures, if any, existing therein; police assistance is

also ordered in the fitness of things; all this is consistent

with justice of the case and the duty of the Court to

ensure that the fruits of the decree reach the hands of the

victorious party in the legal battle; therefore the

interference of writ court is not warranted.

F. The unconscionable stand of the JDrs needs to

be mentioned here; when there was no dispute as to the

identity of the property either in the suit or in the RFA, the

JDrs by their wily tactics are trying to generate one in the

execution proceedings; in fact, their application filed under

Order XLI Rule 27 seeking leave to produce additional

documents in the RFA has been rejected by the Division

Bench disbelieving the unregistered Settlement Deed

dated 10.09.1968; the DB did not believe the version of the

JDrs that they were in the possession of the suit property

and not the DHr; strangely and unconscionably the JDrs

are unjustibiably re-agitating the same issue before the

Executing Court and before this Court as well; this

virtually amounts to abuse of process of the court; this is

yet another ground for the writ court to deny relief to the

petitioner.

G. The above apart, the JDrs were not justified in

moving the application in I.A.No.4 u/s.6 of the Specific

Relief Act, 1963; going by the plain text & context of this

provision, no application of the kind is maintainable since

the word employed in the section is 'suit' and not the

'application'; there is a certain difference between a suit

and an application; although, the word 'suit' is not defined

in CPC, there is sufficient indication in law for ascertaining

its meaning; Sec.26 of CPC states that a suit is instituted

by the presentation of a plaint; therefore, the relief which

the JDrs intended to obtain u/s.6 of the 1963 Act could

not have been claimed in their application.

H. Further added to the above, Sec.6 of the 1963

Act employs the expression 'recover possession'; the so

called possession of the JDrs cannot be termed to be

possession in law which is a sine qua non for invoking this

provision because:

(i) Possession consists of two ingredients which Salmond on jurisprudence (7th ed.) page 297-308 mentions viz., (i) corpus possessionis and (ii) animus possidendi; the former, he says, comprises of both the power to use the thing possessed and the existence of grounds for the expectation that the possessor's use will not be

interfered with by others; the later consists of an intent to appropriate to oneself the exclusive use of the thing possessed; learned author P.J.Fitzgerald who edited 'Salmond on Jurisprudence' (12th edition) at page 272 adds: "(i) The distinction between animus and corpus was made in Roman law: Dig.41.2.3.1., and has been accepted by such jurists as Savigny, Thering, Pollock, Salmond and Holmes". Apex Court too in the case of Poonaram Vs. Motiram AIR 2019 SC 813 at paragraph 9 has considered and approved this view;

(ii) The great Lexicographer Mr.Ramnath Iyer in his magnum opus 'The Law Lexicon' 3rd Edn.- 2012 writes:

"Possession and occupation: Bare occupation and possession are two different things. The concept of possession, at any rate as it is understood in legal terminology, is a complex one which need not include actual occupation. It comprises rather the right to possess, and the right and ability to exclude others from possession and control coupled with a mental element namely, the animus possidendi, that is to say, knowledge of these rights and the desire and intention of exercising them if need be. The adverse possession of which the law speaks does not necessarily denote actual physical ouster from occupation but an ouster from all those rights which constitute possession in law. It is true that physical occupation is ordinarily the best and the most conclusive proof of possession in this sense but the two are not the same. It is also true that there must always be physical ouster from these rights but that does not necessarily import physical ouster from occupation

especially when this is of just a small room or two in a house and when this occupation is shared with others. ..."

Petitioners version militates against this.

I. Lastly, the JDrs resistance to the execution of

the decree, that is structured on the provisions of Sec.6 of

the 1963 Act, cannot be agreed to; a Division Bench of the

Bombay High Court in AMIRUDDIN vs. MOHAMED

JAMAL, ILR 15 BOM 685 decided way back in the year

1891, has held that Sec.9 of the old Act which was in pari

material with Sec.6 of the new Act is not invocable by a

person who has no juridical possession; the same view is

taken by several other High Courts in the country viz.,

NEYVELI LIGNITE CORPORATION vs. K.S.NARAYANA