Smt H N Susheelamma vs Mr Havinal Prashanth
2022 Latest Caselaw 10034 Kant

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  IN THE HIGH COURT OF KARNATAKA, BENGALURU

       DATED THIS THE 30TH DAY OF JUNE, 2022

                           BEFORE

   THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

            R.F.A.NO.1446 OF 2014(DEC/INJ)
BETWEEN

SMT. H.N. SUSHEELAMMA
AGE ABOUT 58 YEARS
W/O MR. H.S. VIJAYAKUMAR
R/AT NO. 27, MICO LAYOUT
WEST OF CHORD ROAD
BENGALURU - 560 086.
                                              ...APPELLANT
(BY SRI. RAJESH MAHALE, ADVOCATE FOR
    SRI. NAVEED AHMED., ADVOCATE)

AND

MR. HAVINAL PRASHANTH
AGE ABOUT 42 YEARS
S/O HAVINAL KARIBASAPPA
R/AT NO. 16, COMFORT ENCLAVE
APARTMENT NO. 213, GANGANAGAR
BENGALURU - 560 032.
                                            ...RESPONDENT
(BY SRI. N. AJAY KUMAR., ADVOCATE FOR
    SRI. N. JAIPRAKASH RAO., ADVOCATE)

      THIS APPEAL IS FILED UNDER SECTION 96(1) OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED: 20.08.2014
PASSED IN O.S.NO. 25370/2008 ON THE FILE OF XXVI-ADDL. CITY
CIVIL AND SESSIONS JUDGE, MAYO HALL, BENGALURU, PARTLY
DECREEING THE SUIT FOR DECLARATION AND INJUNCTION AND
ETC.

      THIS APPEAL COMING ON FOR FURTHER HEARING , THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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                         JUDGMENT

This appeal by the defendant in O.S.No.25370/2008 is

directed against the impugned judgment and decree dated

20.08.2014 passed by the XXVI Addl. City Civil Judge at Mayo

Hall, Bangalore, whereby the said suit for declaration,

permanent injunction and possession filed by the respondent

- plaintiff against the appellant - defendant in respect of the

suit schedule immovable property was decreed by the trial

court in favour of the respondent against the appellant.

2. Heard learned counsel for the appellant and

learned counsel for the respondent and perused the material

on record.

3. The material on record discloses that the

respondent instituted the aforesaid suit inter alia contending

that the suit schedule property originally belonged to one

M.Nanjundappa, who sold the same in favour of Smt.Jayanthi

Kulkarni under the registered sale deed dated 10.07.1991.

The said Smt.Jayanthi Kulkarni sold the schedule property to

Prachit R.Murthy vide sale deed dated 07.03.2001 and in turn,

he sold the suit schedule property in favour of the plaintiff

under registered sale deed dated 23.07.2004. It is contended

that the plaintiff was put in possession and enjoyment of the

suit schedule property and when the defendant attempted to

interfere with her possession, the plaintiff made enquiries and

learnt that the defendant had obtained the ex-parte judgment

and decree for permanent injunction in O.S.No.8785/2002

dated 25.09.2007 on the basis of an unregistered power of

attorney and affidavit of the year 1986 said to have been

executed by the aforesaid Nanjundappa in her favour. It is

further contended that the defendant who does not have any

registered document in her favour nor any right over the suit

schedule property, dispossessed the plaintiff with the help of

local police during the pendency of the suit, as a result of

which, the plaintiff got amended the suit by adding the

alternative relief of possession along with necessary pleadings

in this regard.

4. The appellant - defendant filed his written

statement inter alia contending that the plaintiff did not have

any manner of right, title, interest or possession over the suit

schedule property. It was contended that the defendant

acquired title and possession over the property having

acquired the same from Nanjundappa on 23.04.1986. It is

further contended that alternatively, the defendant was in

continuous possession and enjoyment of the suit schedule

property and that the suit was barred by limitation apart from

being bad for non-joinder of necessary and proper parties. To

the amended plaint, defendant filed an additional written

statement putting forth various defences including the defence

that the prayer for possession sought for by way of

amendment was barred by limitation.

5. Based on the above pleadings, the trial court

framed the following issues:-

1. Whether the plaintiff proves he is the absolute owner of the suit schedule property purchased on 10/4/1991?

2. Whether defendant proves that he is the absolute owner of the suit schedule property?

3. Whether plaintiff proves that he has been in possession of the suit schedule property?

4. Whether plaintiff proves that the decree passed in O.S.No.8785/2003 in 22nd ACCJ is not binding on him?

5. Whether suit of the plaintiff is bad for non-joinder of parties?

6. Whether suit of the plaintiff is barred by law of limitation?

7. Whether court fee paid on the plaint is proper and correct?

Additional Issue No.1 :- Whether the plaintiff is entitled for mesne profits at the rat of Rs.15,000/- p.m.?

8. Whether plaintiff is entitled for relief sought for?

9. What order or decree?

6. Plaintiff examined herself as PW-1 and one

witness as PW-2 and Exs.P1 to P18 were marked on her

behalf. The defendant examined himself as DW-1 and Exs.D1

to D15 were marked on his behalf. After hearing the parties,

the trial court proceeded to pass the impugned judgment and

decree by upholding the claim of the plaintiff and rejecting the

defence of the defendant and thereby decreed the suit in

favour of the plaintiff, aggrieved by which, the appellant -

defendant is before this Court by way of the present appeal.

7. The material on record, in particular, the order

sheet maintained by the trial court will indicate that in the first

instance, prior to the plaintiff amending the plaint and

incorporating the prayer for possession, the trial court framed

issues on 09.06.2011. Thereafter, on 08.09.2011, the plaint

was amended by incorporating additional prayer for

possession together with necessary amendment to the body

of the plaint, to which, the defendant filed his additional written

statement on 25.08.2012, pursuant to which, an additional

issue as regards the entitlement of the plaintiff to mesne

profits @ Rs.15,000/- per month was framed by the trial court

on 11.10.2012. In this context, it is significant to note that

despite amendment to the plaint by incorporating the prayer

for possession and by adding 12.1 to 12.3, to which, the

defendant filed a separate additional written statement, the

trial court did not frame additional issues that arose for

consideration in the light of the amended pleadings of the

parties.

8. In this regard, it is the specific contention of the

appellant that the non-framing of additional issues by the trial

court, pursuant to additional pleadings by the parties is a clear

patent illegality and procedural impropriety committed by the

trial court , particularly when the relief of possession sought for

by the plaintiff was granted by the trial court. It is also

contended that the reasoning of the trial court in coming to the

conclusion that the decree obtained by the defendant in

O.S.No.8785/2002 against Sri.Prachit R.Murthy, vendor of the

plaintiff is not binding upon her, is clearly erroneous and

contrary to law as well as the material on record. It is also

pointed out that the trial court committed an error in coming to

the conclusion that the defendant had dispossessed the

plaintiff from possession and enjoyment of the suit schedule

property, during the pendency of th suit, despite there being

no legal or acceptable evidence adduced by the plaintiff and in

the light of the material on record which established that the

defendant had always been in possession and enjoyment of

the suit schedule property which was never in possession and

enjoyment of the plaintiff or her predecessors in title. It is also

submitted that the appellant - defendant has additional

evidence to adduce in support of his defence and as such,

non-framing of additional issues, pursuant to the amended

pleadings has deprived the appellant of an opportunity to

adduce additional evidence and this circumstances was

sufficient to vitiate the impugned judgment and decree. It is

therefore contended that the impugned judgment and decree

passed by the trial court deserves to be set aside.

9. Per contra, learned counsel for the respondent -

plaintiff would support the impugned judgment and decree and

submit that there is no merit in the appeal and the same is

liable to be dismissed. Placing reliance upon the decision of

Apex court i the case of Nedunuri Kameshwaramma vs.

Sampathi Subbarao - AIR 1963 SC 884, it was contended

that so long as the parties knew the case of the other side and

went to trial, mere absence of an issue was not fatal or cannot

be construed as a mistrial which would vitiate the proceedings.

10. On perusal of the material on record and after

hearing the learned counsel for the parties, the following

points that arises for consideration in the present appeal :-

i. Whether the trial court committed an error in not framing additional issues, pursuant to the amended pleadings and not giving an opportunity to the parties to adduce evidence in this regard?

ii. Whether the impugned judgment and decree passed by the trial court warrants interference in the present appeal?

Re. Point No.i:

11. A perusal of the original plaint filed by the

respondent-plaintiff will indicate that it was averred as under:

"11. The plaintiff submits that the defendant claims to have obtained an unregistered power of attorney from Mr. M. Nanjundappa in the year 1986 and based on the said Power of Attorney and affidavit, the defendant has been claiming title to the schedule property and that the defendant has no registered document or title deeds to establish a better title than that of the plaintiff in respect of the schedule property and admittedly, the defendant has

no enforceable or legal title to claim the schedule property and that the plaintiff as the true and lawful owner is in possession and enjoyment of the same as absolute owner and the plaintiff is entitled to a decree of declaration of title to the schedule property since the defendant on the basis of the alleged unregistered power of attorney has been claiming title to the schedule property and therefore, the plaintiff has sought for a decree of declaration of title of the schedule property based on lawful possession and legal title and since the defendant has been threatening the plaintiff as regards to the title of the schedule property, the plaintiff is entitled to a decree of declaration of title of the schedule property against the defendant.

12. The plaintiff submits that the suit schedule property is in the lawful possession of the plaintiff and the defendant has been unnecessarily interfering in the plaintiff's peaceful possession and enjoyment of the schedule property and that the plaintiff prima facie has a legal title and is in lawful possession as a true and lawful owner and admittedly, the defendant has no legal title of lawful possession and therefore, the balance of convenience is in favour of the plaintiff and if the defendant is not restrained by an order of temporary injunction as a consequential relief, the defendant will be emboldened to misuse the process

of the court and it will lead to multiplicity of proceedings and on the other hand, if the relief prayed for is granted, no harm or injury will be caused to the defendant.

14. The plaintiff submits that the defendant has the support of the local undesirable elements in the locality and with the certified copy of the judgment and decree obtained in O.S.No.8785/2003, the defendant has been threatening the plaintiff of dispossession and the local police have refused to entertain the complaint of the plaintiff and hence, the plaintiff is entitled for an order as prayed for.

15. The cause of action for the above suit arose on 17.02.2008 when the defendant along with some persons interfered with the plaintiff's peaceful possession and enjoyment of the schedule property and have obstructed the construction of the watchman shed and subsequently, the defendants along with some undesirable elements have been holding cut threats of interference, trespass and dispossession and every threat being held out by the defendant is within the jurisdiction of this Hon'ble Court and this Hon'ble Court has jurisdiction to try the above suit. The suit is in time."

12. As can be seen from the plaint averments, it was

specifically contended by the plaintiff that he was the owner in

possession and enjoyment of the suit schedule property and

that the interference to his possession by the defendant, who

did not have title or possession over the property led to the

plaintiff instituting the instant suit. On the other hand, the

defendants specifically contended that she was in lawful and

peaceful enjoyment of the suit schedule property from the time

she purchased the same from the original owner Nanjundappa

on 23.04.1986 and that the plaintiff did not have any manner

of right, title, interest or possession over the property. In

addition thereto, the defendant contended that the suit was

barred by limitation and that the same was liable to be

dismissed since the plaintiffs had knowledge of the defendants

title and possession since the year 2003.

13. It is relevant to state that at that point in time, the

plaintiff did not contend that he had lost possession of the suit

schedule property or that he had been dispossessed by the

defendant. Accordingly, issues were framed by the trial Court

on 08.09.2011 regarding the alleged title and possession of

the plaintiff and other questions that arose in the suit.

However, subsequently, on 08.09.2011, the plaintiff got the

plaint amended and incorporated paragraphs 12.1, 12.2 and

12.3, which read as under:

"12.1. The plaintiff submits that after filing of the suit, the defendant having entered appearance, with the help of the local police has dispossessed the plaintiff from the suit schedule property on the basis of an exparte order of injunction in O.S.No.8785/2003 and the plaintiff has lost possession of the suit schedule property. The plaintiff submits that he had business interest at Bellary and was concentrating on his business and the photograph produced along with the plaint depicts the plaintiff standing in front of the watchman shed and the construction of the compound being in progress. The plaintiff had appointed a watchman who was the care taker and when the plaintiff visited the suit schedule property during January 2010, he was shocked to find the watchman missing the defendant had taken illegal possession of the schedule property by dispossessing the plaintiff without any manner of right, title or interest in the schedule property and that the plaintiff has lost possession of the suit schedule property during the pendency of the suit.

12.2. The plaintiff submits that the suit was filed for declaration of title and consequential relief based on

possession and that in view of the dispossession, the plaintiff has sought possession of the schedule property from the defendant who is in illegal and unlawful possession and that the plaintiff has a subsisting right, title and interest in the schedule property and the documents produced by the plaintiff, prima facie establishes the right of the plaintiff over the suit schedule property and that except the plaintiff, no other person/s including the defendant have any manner of right over the suit schedule property and that the plaintiff as on the date of the suit was in lawful possession of the suit schedule property until the defendant dispossessed the plaintiff, which the plaintiff came to know during January 2010 and therefore, the plaintiff has sought for possession of the suit schedule property from the defendant.

12.3. The plaintiff submits that the defendant is in lawful possession of the suit schedule property from January 2010, and the defendant is liable to pay mesne profits mesne profits from January 2010 at the rate of Rs.15,000 per month till the date of delivery of possession and the plaintiff undertakes to pay additional court fee as and when ordered by this Hon'ble Court.

14. In addition to the body of the plaint, the plaintiff

also got amended the prayer column by adding the relief of

possession by directing the defendant to deliver possession of

the suit schedule property to the plaintiff.

15. In pursuance of the same, the defendant filed his

additional written statement not only disputing the amended

plaint averments but also specifically contending that the relief

of possession was barred by limitation and that the plaintiff

was not entitled to the said relief of possession sought for by

way of amendment. However, except framing an additional

issue on 11.10.2012 as regards the plaintiff's entitlement to

mesne profits, the trial Court omitted to frame issues with

regard to limitation, relief of possession and other aspects,

which arose for consideration pursuant to the amended

pleadings of the parties referred to supra.

16. A perusal of the amended pleadings of the parties

will clearly indicate that in addition to the issue with regard to

the plaintiff's entitlement to mesne profits, other issues as

regards limitation, alleged possession of the plaintiff as on the

date of the suit and the defence of the defendant in this

regard, alleged dispossession of the plaintiff by the defendant

in January, year 2010 during the pendency of the suit,

entitlement of the plaintiff to the relief of possession, liability of

the defendant to deliver possession of the suit schedule

property to the plaintiff etc., arose for consideration before the

trial Court. In other words, pursuant to the amended

pleadings of the parties referred to supra, it was incumbent

upon the trial Court to frame several additional issues as

stated herein before that emerged from the amended

pleadings in addition to the issue regarding mesne profits. In

my considered opinion, failure on the part of the trial Court to

frame additional issues, which arose pursuant to the amended

pleadings and which were relevant and material for

adjudication of the suit, is clearly a patent illegality and

procedural impropriety, which goes to the root of the matter

and vitiates the impugned judgment and decree, which

deserves to be set aside on this ground alone.

17. It is also significant to note that subsequent to the

non-framing of relevant issues by the trial Court except the

only issue regarding mesne profits pursuant to the amended

pleadings as stated supra, the parties adduced oral and

documentary evidence; however, the plaintiff did not produce

any evidence to establish that he had been dispossessed in

January, 2010 during the pendency of the suit. So also, the

contention of the defendant that she had always been in lawful

and peaceful possession and enjoyment of the suit schedule

property had not been sufficiently impeached in her cross-

examination. The oral and documentary evidence adduced by

both sides will clearly indicate that neither party proceeded to

trial or adduced evidence bearing/keeping in mind the

amended pleadings and on this score also, non-framing of

additional issues and entering into trial by both sides pursuant

to the amended pleadings would vitiate the impugned

judgment and decree passed by the trial Court, which is

vitiated and deserves to be set aside on this ground also.

18. In so far as the contention urged by the

respondent placing reliance upon the decision of the Apex

Court in Nedunuri's case supra, in order to contend that the

parties had understood their respective claims and adduced

evidence is concerned, the said judgment of the Apex Court

was rendered in the peculiar/special facts and circumstances

of the said case. In the said case, it was not the contention of

either party that they had any further evidence in support of an

issue that had not been framed; in the case on hand, as held

by me supra, relevant and material issues that arose for

consideration pursuant to the amended pleadings had been

omitted to be framed by the trial Court and both parties had

not adduced evidence in relation to the said aspects that

arose out of the amended pleadings and consequently, in the

peculiar/special facts and circumstances obtaining in the

instant case, I am of the considered opinion that the said

contention urged by the respondent cannot be accepted.

19. Yet another factor that would be relevant in order

to test the legality, validity and correctness of the impugned

judgment and decree is that the trial Court did not grant any

opportunity to either party to adduce evidence with regard to

the amended pleadings. As stated supra, the plaintiff did not

adduce any evidence with regard to his alleged dispossession

in the year 2010 during the pendency of the suit and the

defendant also did not adduce any evidence on this disputed

aspect of the matter, which was contained in the amended

pleadings.

20. Viewed from this angle also, the omission on the

part of the trial Court to provide an opportunity to the parties to

adduce evidence pursuant to the amended pleadings is yet

another circumstance, which would vitiate the impugned

judgment and decree, which deserves to be set aside on this

ground also.

21. In view of the aforesaid facts and circumstances,

point No.i is answered by holding that the trial Court

committed an error in not framing additional issues, pursuant

to the amended pleadings and not giving an opportunity to the

parties to adduce evidence in this regard.

Re. point No.ii:

22. A perusal of the impugned judgment and decree

will indicate that the trial Court answered issue No.4 in favour

of the plaintiff by placing reliance upon illustration (a) to

Section 43 of the Indian Evidence Act. In this context, it is

relevant to state that the said issue was in relation to whether

the judgment and decree dated 25.09.2007 passed in favour

of the defendant against Prachit R. Murthy, vendor of plaintiff

in O.S.No.8785/2003 was binding upon the plaintiff.

23. Undisputedly, the plaintiff alleges to have

purchased the suit schedule property from the aforesaid

Prachit R. Murthy vide registered Sale Deed dated 23.07.2004

during the pendency of O.S.No.8785/2003 filed by the

defendant herein against Prachit R. Murthy. It is also not in

dispute that the plaintiff herein was a lis pendens/pendente lite

purchaser of the suit schedule property from Prachit R. Murthy

against whom the defendant herein had instituted the

aforesaid suit and obtained a decree. It is trite law that a lis

pendens purchaser is bound/subject to the final outcome of

the suit during the pendency of which he acquires the property

as held by the Apex Court in the case of Rajkumar Vs.

Sardari Lal and others - (2004) 2 SCC 601; it follows

therefrom that the plaintiff herein having undisputedly

purchased the suit schedule property during the pendency of

O.S.No.8785/2003 filed by the defendant herein against the

plaintiff's vendor Prachit R. Murthy, the final judgment and

decree passed in the said suit in favour of the defendant

herein against Prachit R. Murthy in respect of the rival claims

in relation to the suit schedule immovable property would

clearly be binding upon the plaintiff herein and failure to

appreciate this by the trial Court has resulted in an erroneous

conclusion.

24. In so far as reliance placed upon illustration (a) to

Section 43 of the Indian Evidence Act, by the trial Court is

concerned, it would be necessary to extract the said provision,

which reads as under:

"43. Judgments, etc., other than those mentioned in sections 40 to 42, when relevant.- Judgments, orders or decrees, other than those mentioned in sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree, is a fact in issue, or is relevant under some other provisions of this Act.

Illustration (a) A and B separately sue C for a libel which reflects upon each of them. C in each case says, that the matter alleged to be libellous is true, and the circumstances are such that it is probably true in each case, or in neither.

A obtains a decree against C for damages on the ground that C failed to make out his justification. The fact is irrelevant as between B and C."

A plain reading of the aforesaid provision is sufficient to

establish that the same is not applicable to the facts of the

instant case and consequently, I am of the view that the trial

Court completely misdirected itself in applying an inapplicable

provision of law and on this ground also, the impugned

judgment and decree passed by the trial Court deserves to be

set aside.

25. A perusal of the findings recorded by the trial

Court on issue No.3 will indicate that while deciding whether

the plaintiff was in possession of the suit schedule property as

contended by him, the trial Court answered the said issue in

the negative against the plaintiff; however, despite there being

no legal or acceptable material on record to establish that the

plaintiff had been dispossessed from the suit schedule

property during the pendency of the suit, the trial Court

answered issue No.8 in favour of the plaintiff and directed the

defendant to hand over possession of the property to the

plaintiff. In this regard, the findings recorded by the trial Court

on issue No.8 is clearly erroneous and perverse and contrary

to the material on record without appreciating that the plaintiff

had not adduced any evidence, muchless, legal or acceptable

evidence to establish his contention that he was in possession

of the suit schedule property as on the date of filing the suit

and that he was dispossessed by the defendant in 2010

during its pendency and consequently, the impugned

judgment and decree deserves to be set aside on this ground

also.

26. After careful re-evaluation and re-appreciation of

the entire material on record and in the light of the facts and

circumstances narrated above and bearing in mind that

additional issues arising out of the amended pleadings have to

be framed and an opportunity has to be provided in favour of

the parties to adduce further oral and documentary evidence, I

deem it just and appropriate to set aside the impugned

judgment and decree and remit the matter back to the trial

Court for re-consideration afresh in accordance with law.

27. In the result, I pass the following:

ORDER

i. The appeal is hereby allowed.

ii. The impugned judgment decree dated

20.08.2014 passed in O.S.No. 25370/2008 on

the file of the XXVI Addl. City Civil and Sessions

Judge, Mayo Hall, Bengaluru is hereby set

aside.

iii. The matter is remitted back to the trial Court for

reconsideration afresh in accordance with law.

iv. The trial Court is directed to frame additional

issues bearing/keeping in mind the amended

plaint and additional written statement filed on

08.09.2011 and 25.02.2012, respectively and

other material on record.

v. Liberty is reserved in favour of both sides to

adduce further oral and documentary evidence

in support of their respective contentions.

vi. Both parties undertake to appear before the trial

Court on 18.07.2022 without awaiting further

notice from the trial Court and also co-operate

with the trial Court for expeditious disposal of

the suit.

vii. The trial Court shall dispose of the suit as

expeditiously as possible and at any rate on or

before 30.11.2022.

viii. All rival contentions on merits/demerits are kept

open and no opinion is expressed on the same.

Sd/-

JUDGE

BMC