Karnataka High Court
Abhiman Apartment Co-Operative vs Kasim Sab Peersab Nadaf on 13 December, 2023
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NC: 2023:KHC-D:14987-DB
RFA No. 719 of 2015
R
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 13TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO. 719 OF 2015
BETWEEN:
1. Abhiman Apartment Co-operative
Housing Society Limited,
A Society registered under
The Karnataka Co-operative Society Act
Having its registered office at
Dr. Ambedkar Road,
Opposite Civil Hospital
Belagavi (since liquidated
as per Karnataka State Government Gazette,
Notification No.DRL:N:LQD 143/200
Represented by Liquidator
Digitally signed Sri. G.S.Bomme Gowda
by C K LATHA S/o. Late C.Shivanna
Location: HIGH Aged about 54 years,
COURT OF R/at Karnataka State Co-operative
KARNATAKA Housing Federation,
Diwan Madhav Rao Road,
Basavangudi, Bengaluru-560004.
2. Basavannai B.Shetti
S/o. B.Shetti, Age:72,
Ex-President,
C/o. Abhiman Apartment
Co-operative Housing Society Limited,
R/o. Civil Hospital Road,
Belagavi-590001.
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RFA No. 719 of 2015
3. Nemu G. Magadaum
S/o. Gangappa, Age:56
Occ: Business,
R/o. Plot No.1/A
Sy.No.6/2B, Mahabaleshwar Nagar,
Double Road, Hindalga,
Belagavi-591108.
4. V.K.Patil,
S/o. Krishnappa, Age:54
Occ: Business,
R/o. Plot No.6 & 7, A.I, II floor
R/o. Abhiman Society
Dr. B.R.Ambedkar Road,
Opp: Civil Hospital,
Belagavi-590001.
5. Smt. S.J.Rasalkar
Age:67, Occ: Household Work,
R/at. H.No.48003, Mannurkar
Building, 4th Cross, Shivajinagar,
Belagavi-590001.
Presently R/at
C/o. R.a. Jadhav, H.No.117/1,
Shivaji Road, Belagavi-590001.
Appellant No.5 died on 25.02.2017
Cause title is amended vide Court
Order dated 12.08.2021.
5(a). A.S.A.Rajaram
S/o. Apparao Jadhav,
R/o. H.No.117/1, Shivaji Road,
Belagavi-590001.
5(b). Smt. Snehal
W/o. Late Surendra Parmekar,
R/o. H.No.117/1, Shivaji Road,
Belagavi-590001.
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RFA No. 719 of 2015
5(c). Sri. Abhay
S/o. Rajaram Jadhav,
R/o. H.No.117/1, Shivaji Road,
Belagavi-590001.
6. Smt. Sushila Ullagaddi
Age:63, Occ: House Hold Work,
R/o. Abhiman Society,
Dr. B.R.Ambedkar Road,
Opp: Civil Hospital,
Belagavi-590001.
Presently R/at
C/o. Y.S.Kagawad,
Plot No.56/57, 5th Cross,
Krishi Colony, Bhagya Nagar,
Belagavi-590006.
7. V.Y.Kalasannavar
S/o. Yallappa, Age:58
Occ: Business,
R/o. No.2570, Shivakrupa
C/o. Shri S.V.Girannavar,
Mali Galli, Belagavi-590001.
8. S.S.Girannavar
Age: 57, Occ: Business,
C/o. Dr. V.B.Dhaded
Club Road, Belagavi-590001.
9. Smt. Anupama V.Dhaded
Age: 68, Occ: Business,
R/at C/o. Dr. V.B.Dhaded
Club Road, Belagavi-590001.
10. P.D.Kale,
Age:69, Occ: Business,
R/o. Abhiman Society,
Dr. B.R.Ambedkar Road,
Opp: Civil Hospital,
Belagavi-590001.
Presently R/at Plot No.61/62,
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RFA No. 719 of 2015
Shivaneri, Jadhavnagar,
Belagavi-590001.
11. L.S.Hongekar
S/o. Satvaji, Age: 54
Occ: Business,
R/o. No.9, Anantshayan Galli,
Belagavi-590001.
12. L.O.Bamane,
S/o. Omanna, Age:76
Occ: Business,
R/o. Abhiman Society,
Dr. B.R.Ambedkar Road,
Opp: Civil Hospital,
Belagavi-590001
presently R/at Plot No.13, Dajiva
Desai Colony, Hanumannagar,
Belagavi-590001.
Appellant No.12 died on 08.02.2016
Cause title is amended vide Court
Order dated 01.03.2016.
12(a). Annapurna @ Malu
W/o. Gajanan Hindalagekar,
Age:56 years,
Occ: Household Work,
R/o. Near Kisan Dairy, Hindalga Taluk,
And District:Belagavi-591108.
12(b). Ashok Laxman Bamane
Age: 54 years, Occ: Business,
R/o. Dajiba Desai Colony,
Double Road, Hanuman Nagar,
Belagavi-590001.
12(c). Sanjay Laxman Bamane
Age: 49 years, Occ: Business,
R/o. Dajiba Desai Colony,
Double Road, Hanuman Nagar,
Belagavi-590001.
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RFA No. 719 of 2015
13. S.S.Swami,
Age : 52, Occ: Business
R/at No.27, Mahabaleshwar Nagar,
Hindalga Road, Belagavi-591108.
14. V.B.Kankantri,
D/o. Basavanni,
Aged about 35 years,
R/o. Abhiman Society,
Dr. B.R.Ambedkar Road,
Opp: Civil Hospital
Belagavi-590001.
15. Smt. Malika Acharya,
W/o. Acharya, Age:64
R/o. Abhiman Society,
Dr. B.R.Ambedkar Road
Opp: Civil Hospital,
Belagavi-590001.
Presently R/at Plot No.335,
Scheme No.40,
Behind Hindalga Ganapathi Temple,
Belagavi-591108.
16. Narayan P.Potdar, Age:67,
R/o. 43/10, Chougula Building,
Mahadwar Road, Belgaum,
presently R/at Plot No.33,
Mahabaleshwar Nagar,
Near Hindalga Ganapathi Temple,
Belagavi-591108.
Since appellant No.16 has died
Cause title is amended vide Court.
Order dated 03.07.2023.
16(a) Padma, W/o. Narayan Potdar
Age:62 years, Occ:Household Work,
R/o. Plot No.33, Mahabaleshwar Nagar,
Near Hindalga Ganapati Temple,
Belagavi Taluk and District Belagavi-591108.
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RFA No. 719 of 2015
16(b) Yogesh, S/o. Narayan Potdar
Age: 41 years, Occ:Private Service,
R/o. Plot No.33, Mahabaleshwar Nagar,
Near Hindalga Ganapati Temple,
Belagavi Taluk and District Belagavi-591108.
16(c) Yogita, W/o. Vinayak Nannoji,
Age:38 years, Occ:Private Service,
R/o. Plot No.33, Mahabaleshwar Nagar,
Near Hindalga Ganapati Temple,
Belagavi Taluk and District Belagavi-591108.
17. D.P.Mundra, Age:60,
R/o. Kaddannavar,
Hindwadi, Belagavi-590 003.
Since appellant No.17 has died
cause title is amended vide Court
Order dated 29.07.2021.
17(a). Kanta, W/o. Durgaprasad Mundra,
Age:79 years, Occ:Household Work,
R/o. H.No.102, Nartiki Pride, New
Good Shed Road, Belagavi Taluk
And District Belagavi-590001.
17(b). Rajesh, S/o. Durgaprasad Mundra,
Age:49 years, Occ:Household Work,
R/o. H.No.102, Nartiki Pride, New
Good Shed Road, Belagavi, Taluk
And District Belagavi-590001.
17(c). Manish S/o. Durgaprasad Mundra,
Age:44 years, Occ:Household Work,
R/o. H.No.102, Nartiki Pride, New
Good Shed Road, Belagavi, Taluk
And District Belagavi-590001.
18. Balu N.Mainshale,
Age:69,
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RFA No. 719 of 2015
R/o. Plot No.42,
Mahabaleshwarnagar,
Hindalga Road,
Belagavi-591 108.
19. Smt. Rajani L.Parab
Age:59,
R/o. Abhiman Society,
Dr. B.R.Ambedkar Road,
Opp: Civil Hospital
Belagavi-590 001.
Presently R/at Plot No.43
Mahabaleshwarnagar,
Hindalga Road,
Belagavi-591 108.
20. Shanta S.Kalsanavar
Age:62
R/o Plot No.48,
Mahabaleshwarnagar,
Hindalga Road, Temple,
Belagavi-591 108.
21. Smt. Bharati R.Hublikar,
W/o. R.Hublikar, Age:64,
R/o. Plot No.56,
Mahabaleshwarnagar,
Hindalga Road,
Belagavi-591 108.
22. S.V.Jagtap
Age:57,
R/o. Plot No.73,
Mahabaleshwaranagar,
Hindalga Road,
Belagavi-591 108.
23. S.G.Chavan
Age:56,
R/o. Plot No.84,
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RFA No. 719 of 2015
Mahabaleshwarnagar,
Hindalga Road,
Belagavi-591 108.
24. I.A.Dhaware
Age:70
R/o Plot No.74,
Mahabaleshwarnagar,
Hindalga Road,
Belagavi-591 108.
25. Umesh B.Dandagi
Age:41
R/o Plot No.68,
Mahabaleshwarnagar,
Hindalga Road,
Belagavi-591 108.
Since Appellant No.25 has died
Cause title is amended vide Court
Order dated 11.07.2023.
25(a). Jayashree, W/o. Umesh Dandagi
Age:42 years, Occ: Household Work,
R/o. Plot No.68, Mahabaleshwar Nagar,
Near Hidalga Ganapathi Temple,
Belagavi Taluk and District Belagavi-591108.
25(b). Navami, D/o. Umesh Dandagi
Age:23 years, Occ: Household Work,
R/o. Plot No.68, Mahabaleshwar Nagar,
Near Hidalga Ganapathi Temple,
Belagavi Taluk and District Belagavi-591108.
26. Smt. Lalitha L.Patil
Age:58,
R/o. Plot No.98,
Mahabaleshwarnagar,
Hindalga Road,
Belagavi-591 108.
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RFA No. 719 of 2015
27. S.G.Pattimani
Age:56,
R/o. Abhiman Society,
Dr. B.R.Ambedkar Road,
Opp:Civil Hospital
Belagavi,
Presently R/at
Yamakanamardi,
Taluk Hukkeri-571 249.
28. S.N.Hattarki
Age:69,
R/o. Abhiman Society,
Dr. B.R.Ambedkar Road,
Opp:Civil Hospital
Belagavi,
Presently R/at
Plot No.51,
Mahabaleshwarnagar,
Hindalga Road,
Belagavi-591 108.
29. Chandra Shekar Kamgol
Age:62
R/o. Ranade Road,
Tilakwadi, Belagavi,
Presently R/at Plot No.52
Mahabaleshwarnagar,
Hindalga Road,
Belagavi-591 108.
30. Smt. Satnam Khurana
W/o. Khurana,
Age:58
R/o. BC No.85,
Camp:Belagavi-590 001.
Presently R/at
Plot No.59/60,
Mahabaleshwarnagar,
Hindalga Road,
Belagavi-591 108.
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RFA No. 719 of 2015
31. Manjit Singh Khurana
Age:65
R/o. BC No.85,
Camp:Belagavi,
Presently R/at
Plot No.59/60
Mahabaleshwarnagar,
Hindalga Road,
Belagavi-591 108.
32. Smt. Shaila N.Savanth
Age:74,
R/o. Abhiman Society,
Dr. B.R.Ambedkar Road,
Opp: Civil Hospital,
Belagavi
Presently R/at
C/o. M.S.Salunke,
Plot No.4/15, Vasant Vihar,
Behind Venkateshwara
Engineering College,
Vidyanagar,
Bengaluru-562 157.
33. Smt. Ratna D.Zond
Age:48
R/o. Abhiman Society,
Dr. B.R.Ambedkar Road,
Opp: Civil Hospital
Belagavi,
Presently R/at,
C/o. B.V.Zond,
CCB-171, Sharada Nilaya,
Near 1st Bus Stop,
Ajamnagar Main Road,
Belagavi-590 001.
34. Yallappa Ganiger
Age:55,
R/o. Plot No.81,
Mahabaleshwarnagar,
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RFA No. 719 of 2015
Hindalga Road,
Belagavi-591 108.
35. P.M.Bellad,
Age:82,
R/o A-7, Staff Quarters,
JNMC Nehrunagar,
Belagavi,
Presently R/at Basava Krupa,
1st Main, 3rd Cross,
Sadashivanagar,
Belagavi-590 001.
36. Smt. Sumangala S.Math
Age:67,
R/o. Abhiman Society,
Dr. B.R.Ambedkar Road,
Opp: Civil Hospital
Belagavi,
C/o. Somalingaiah K.M.,
Door No.632, BDA
B/14, 7th Main,
Dommaluru,
Bengaluru-560 071.
Since appellant No.36 has died
Cause title is amended vide Court
Order dated 29.07.2021.
36(a). K.M.Somalingayya,
Age:74 years, Occ:Retired Employ,
R/o. BDA-B/14, #632, 7th Main, II Stage,
III Phase, Domlur, Bengaluru North,
Bengaluru Taluk & District Bengaluru-560071.
36(b). Umadevi Gaveshwarmath,
Age:47 years, Occ:Household Work,
R/o. BDA-B/14, #632, 7th Main, II Stage,
III Phase, Domlur, Bengaluru North,
Bengaluru Taluk & District Bengaluru-560071.
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RFA No. 719 of 2015
36(c). Veeresh S/o. Somalingayya,
Age:44 years, Occ:Household Work,
R/o. BDA-B/14, #632, 7th Main, II Stage,
III Phase, Domlur, Bengaluru North,
Bengaluru Taluk & District Bengaluru-560071.
36(d). Yogish, S/o. Somalingayya,
Age: 32 years, Occ:Household Work,
R/o. BDA-B/14, #632, 7th Main, II Stage,
III Phase, Domlur, Bengaluru North,
Bengaluru Taluk & District Bengaluru-560071.
37. C.V.Muddebihal
Age:48
R/o. Abhiman Society,
Dr. B.R.Ambedkar Road,
Opp:Civil Hospital,
Belagavi,
Presently R/at
Plot No.96,
Mahabaleshwarnagar,
Hindalga Road,
Belagavi-591 108.
38. Smt. Mangala S.Wali
Age:46
R/at C/o. Shankar S.Wali,
Shivajigalli Chandad District,
Kolhapur-416 509.
39. Smt. Anitha S.Muddebihal
Age: 41
R/o. Abhiman Society,
Dr. B.R.Ambedkar Road,
Opp:Civil Hospital,
Belagavi-590 001.
40. Smt. Rohini Acharya
Age:62
R/at No.134/2, 2nd Main,
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RFA No. 719 of 2015
Opp:Jesiya Mazine,
Belagavi,
Presently at: Plot No.103,
Mahabaleshwarnagar,
Hindalga Road,
Belagavi-591 108.
41. Vishwanath S.Halyal,
Aged about 57 years,
Occ: Govt Employee,
R/o Pant Nagar,
Balekundri B.K.
Belagavi,
Presently R/at Plot No.76,
Mahabaleshwarnagar,
Hindalga Road,
Belagavi-591 108.
42. Siddappa,
S/o. Ramappa Kumar Naik,
Age: 75 years,
Occ: Pensioner, R/o. Belagavi,
Now at Dadbanatti,
Taluk Hukkeri, District Belagavi
(Respondent No.33 is transposed as
appellant No. 42 vide court order dated
11.04.2016)
...Appellants
(By Sri. S.S.Patil and Sri. Mahantesh R. Patil, Advocates, for
A1, A2, A17 (a-c), A29 & A36 (a-d) and A16 (a-c) & A25 (a & b);
Sri. G.Balakrishna Shastry, Advocate, for A3, A4, A6, A8, A10,
A13, A24, A27, A28, A30, A31, A32, A34, A35, A40;
Sri. N.G.Rasalkar, Advocate, for A5 (a-c);
Sri Mrutyunjay Tata Bangi, Advocate, for A7, A9, A11, A12 (a-c),
A15, A16, A18-A23, A26, A33, A38, A39, A41, A14, A37, A29;
Sri. Ravi S.Balikai, Advocate, for A42)
(Respondent No.33 is transposed as Appellant No.42))
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RFA No. 719 of 2015
And:
1. Kasim Sab Peersab Nadaf
Since deceased by LR'S & others
Smt. Begum
W/o. Kashim Sab Nadaf,
Aged about 75 years,
Occ:Household Work,
R/o S.G.Road, Opp: Bus Stand
Sankeshwar Taluk, Hukkeri,
District: Belagavi-591 303.
Cause title is amended vide
court order dated 12.08.2021
Respondent No.1 Dead,
Respondents No.2 to 10 are the
Legal representatives of Respondent No.1.
2. Smt. Arifa
W/o. Abu Bakar Nadaf,
Aged about 60 years,
Occ: Household Work
R/o. Friends Colony,
Shivaji Park, Kolhapur.
3. Sri. Mushtaq
S/o. Kashimsab Nadaf,
Aged about 58 years,
Occ: Business,
R/o. S.G.Road,
Opp. Bus Stand Sankeswar,
Hukkeri Taluk,
Belgaum District-591 313.
4. Mehboob
S/o. Kashim Sab Nadaf,
Aged about 71 years,
Occ:Business,
R/o. S.G.Road,
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RFA No. 719 of 2015
Opp: Bus Stand Sankeswar
Hukkeri Taluk,
Belgaum District-591 313.
Since respondent No.4 has died
cause title is amended vide Court
Order dated 04.03.2018
4(a). Shireen, W/o. Mehboob Nadaf,
Age: 48 years, Occ: Household,
R/o. S.G.Road, Opp: Bus Stand,
Sankeswar, Hukkeri Taluk,
Belgaum District-591313.
4(b). Musif, S/o. Mehboob Nadaf,
Age: 26 years, Occ: Household,
R/o. S.G.Road, Opp: Bus Stand,
Sankeswar, Hukkeri Taluk,
Belgaum District-591313.
5. Smt. Kousar
D/o. Kashimsab Nadaf,
Since deceased by LR's & others
Dr. Ibrahim,
S/o. Amirali Naghnoor,
Aged about 68 years,
Occ: Business,
R/o. Block No.'D' Flat No.401,
Majestic Residency,
Tavarekere Main Road,
B.T.M. Layout, Bengaluru-560 029.
6. Ismail
S/o. Ibrahim Naghnoor,
Aged about 38 years,
Occ: Business,
R/o. Block No.'D' Flat No.401,
Majestic Residency,
Tavarekere Main Road,
B.T.M. Layout, Bengaluru-560 029.
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RFA No. 719 of 2015
7. Mr. Irfan
S/o. Ibrahim Naghnoor,
Aged about 35 years,
Occ: Business,
R/o. Block No.'D' Flat No.401,
Majestic Residency,
Tavarekere Main Road,
B.T.M. Layout, Bengaluru-560 029.
8. Javed
S/o. Kashimsab Nadaf,
Aged about 53 years,
Occ: Business,
R/o. S.G.Road, Opp: Bus Stand,
Sankeswar Hukkeri Taluk,
Belagavi District-591 313.
9. Mukthar
S/o. Kashimsab Nadaf,
Aged about 50 years,
Occ: Business,
R/o. S.G.Road, Opp: Bus Stand,
Sankeswar Hukkeri Taluk,
Belagavi District-591 313.
10. Moin
S/o. Kashimsab Nadaf,
Aged about 47 years,
Occ: Business,
R/o. S.G.Road, Opp: Bus Stand,
Sankeswar Hukkeri Taluk,
Belagavi District-591 313.
11. Mahadev Nijalingappa Kenchagar
S/o. Nijalingappa Kenchagar,
Major, Occ: Pensioner,
Ex-Secretary,
C/o. Abhiman Apartment
Co-operative Housing Society Limited,
R/at No.688, IV Cross,
Bhagyanagar, Belagavi-590 006.
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RFA No. 719 of 2015
Since respondent No.11 has died
cause title is amended vide Court
Order dated 05.07.2016.
11(a). Smt. Sulochana
W/o. Mahadev Kanchagar,
Age:75 years, Occ:Household Work,
R/o. H.No.688, Sulochana Building,
Opp: Syndicate Bank, V Cross,
Bhagya Nagar, Belagavi-590006.
11(b). Smt. Shobha, W/o. Sunil Potdar
Age:40 years, Occ: Household Work,
R/o: H.No.688, Sulochana Building,
Opp: Syndicate Bank, V Cross,
Bhagya Nagar, Belagavi-590006.
12 . I.S.Malagi
Age Major, Occ: Business,
R/o. Abhiman Society
Dr.B.R.Ambedkar Road,
Opp: Civil Hospital,
Belagavi-590 001.
13. Smt. Shivubai Rudrannavar
Age Major,
Occ:Household Work,
Santhosh 768/1B,
Bhagya Nagar, 10th Cross,
Belagavi-590 006.
14. Shri. J.L.Deshpande,
Major, Occ: Business,
R/o. Mangesh Electrical Work
Khade Bazaar,
Belagavi-590 001.
15. Smt. Noorjan H.Kalburgi
Age Major,
Occ:Household Work,
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RFA No. 719 of 2015
R/o. Kotwal Galli,
Belagavi-590 001.
16. Smt. Savita V.Shirur,
Major, Occ: Household Work,
R/o. Abhiman Society,
Dr. B.R.Ambedkar Road,
Opp: Civil Hospital,
Belagavi-590 001.
17. G.P.Sawant
Major, Occ: Service,
R/at No.778, Seeta Nivas,
Near Hindalga Vijaya Bank,
Belagavi-591 108.
18. N.B.Nadgri
Major, Occ: Service,
H.No.10, Club Road,
Belagavi-590 001.
19. Smt. Shobha D Rao,
Major,
Occ:Household Work,
R/o. 106 Picket Road,
Camp: Belagavi-590 001.
20 . Smt. Theresa D'Souza
Major, Occ:Household Work,
R/o. Abhiman Society,
Dr. B.R.Ambedkar Road,
Opp: Civil Hospital,
Belagavi-590 001.
21. S.A.Dambai
Major, Occ: Business,
R/at: C/o. Renuka Krupa
Maratha Colony, Tilakwadi,
Belagavi-590 001.
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RFA No. 719 of 2015
22. Prakash G.Melge
Major, Occ: Business,
C/o. S.H.Jadhav Bhadkal Galli
Belagavi-590 001.
23. Smt. Ushadevi Hosur,
Major, Occ: Housework,
R/o. C/o. Gopal B.Hosur,
3553, Risaldar Galli,
Belagavi-590 001.
24. Peerappa B.Kolkar
Major, Occ: Business,
R/o. Abhiman Society,
Dr. B.R.Ambedkar Road,
Opp: Civil Hospital,
Belagavi-590 001.
25. C.Y.Nilajkar
Major, Occ: Business
R/o. Abhiman Society,
Dr. B.R.Ambedkar Road,
Opp: Civil Hospital,
Belagavi-590 001.
26. Anil A.Shirodkar
Major, Occ: Business,
C/o. S.K.Shirodkar, H.No.289/2,
Harinivas, Shastri Nagar,
Belagavi-590 001.
27. Smt. Sharada S.Balekundri
Major, Occ:Business,
R/o. Abhiman Society,
Dr. B.R.Ambedkar Road,
Opp:Civil Hospital,
Belagavi-590 001.
28. B.P.Kapati
Major, Occ: Business,
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RFA No. 719 of 2015
27,Mahabaleshwar Nagar,
Hidalga Road,
Belagavi-591 108.
29. B.P.Kokitkar
Major, Occ:Business,
R/o. Abhiman Society,
Dr. B.R.Ambedkar Road,
Opp:Civil Hospital
Belagavi-590001.
30. M.N.Desai
Major, Occ:Business,
R/o. Abhiman Society,
Dr. B.R.Ambedkar Road,
Opp: Civil Hospital
Belagavi-590001.
31. Vijay Anikanandi
Major, Occ:Business,
R/at: C/o. V.B.Jawoor,
Ex-Engineer,
Renuka Krupa Maratha Colony,
Behind Arun Cinema,
Belagavi-590 001.
32. Smt. Sushila S.Kore
Major,
R/o. Abhiman Society,
Dr. B.R.Ambedkar Road,
Opp: Civil Hospital
Belagavi-590001.
33. S.R.Kumarnaik
Major,
R/at :C/o. R.S.Kumarnaik,
Dadbanhatti Post,
Yamakanmardi,
Hukkeri Taluks-591 309.
(Respondent No.33 is transposed as
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NC: 2023:KHC-D:14987-DB
RFA No. 719 of 2015
appellant No. 42 vide court order dated
11.04.2016)
34. A.B.Girannavar
Major,
R/o.35, Mahabaleshwarnagar,
Hindalga Road,
Belagavi-591 108.
35. Kalind D.Dalvi
Major,
R/o. Abhiman Society,
Dr. B.R.Ambedkar Road,
Opp: Civil Hospital
Belagavi-590001.
36. Smt. Vinaya S.Kulkarni
Major, C/o Type "C"Building,
R/o. Abhiman Society,
Dr. B.R.Ambedkar Road,
Opp: Civil Hospital
Belagavi-590001.
37. Gopal L.Kolekar
Major,
R/at:H.No.18/2, 1st Main,
2nd Cross, Shivajinagar,
Belagavi-590 001.
38. H.Chandragupta
Major,
R/o. Mahabaleshwarnagar,
Hindalga Road,
Belagavi-591 108.
39. Smt. Mainbai Basalingappa,
Major, Occ:Household Work,
R/o. Abhiman Society,
Dr. B.R.Ambedkar Road,
Opp: Civil Hospital
Belagavi-590001.
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NC: 2023:KHC-D:14987-DB
RFA No. 719 of 2015
40. Sadashi S.Kore
Major,
R/at H.No.4824/1A/9
Near S.P. Residence,
Belagavi-590 016.
41. Vinay S.Chadda
Major,
R/o. D/33, Indal Colony,
Aluminium Factory,
Belagavi-590 010.
42. V.R.Kagawade
Major, R/o.386, M.G.Road,
Tilakwadi,
Belagavi-590 006.
43. S.V.Kalmath
Major,
R/o. Abhiman Society,
Dr. B.R.Ambedkar Road,
Opp: Civil Hospital
Belagavi-590001.
44. Smt. Rama K.Raj
Major,
R/o. Mahabaleshwarnagar,
Hindalga Road,
Belagavi-591 108.
45. Smt. L.G.George
Major,
R/o. Mahabaleshwarnagar,
Hindalga Road,
Belagavi-591 108.
46. Smt. Vasant Gouri
Major ,
R/o. Mahabaleshwarnagar,
Hindalga Road,
Belagavi-591 108.
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NC: 2023:KHC-D:14987-DB
RFA No. 719 of 2015
Since respondent No.46 has died
Cause title is amended vide Court
Order dated 27.09.2016
46(a). S.Vijayakumar Raghavan,
Age 60 years, Occ:Business,
R/o. #106, Mahabaleshwarnagar,
Near Hindalga Ganapati Temple,
Double Road, Belagavi-591108.
46(b). Vidya S.Vijayakumar Raghavan
Age 26 years, Occ: Student,
R/o. #106, Mahabaleshwarnagar,
Near Hindalga Ganapati Temple,
Double Road, Belagavi-591108.
47. A.K.Acharya
Major ,
R/o. Mahabaleshwarnagar,
Hindalga Road,
Belagavi-591 108.
48. Smt. Kumodini C.Rao
Major ,
R/o. Mahabaleshwarnagar,
Hindalga Road,
Belagavi-591 108.
49. Vimal B.Dandagi
Major,
R/o. Mahabaleshwarnagar,
Hindalga Road,
Belagavi-591 108.
50. N.G.Telganji
Major ,
R/o. Teachers Colony,
Vijaynagar, Hindalga,
Belagavi-591 108.
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NC: 2023:KHC-D:14987-DB
RFA No. 719 of 2015
51. Karan Singh G.Chavan
Major,
R/o. Abhiman Society,
Dr. B.R.Ambedkar Road,
Opp: Civil Hospital
Belagavi-590001.
52. B.S.Kotambari
Major,
R/o. Abhiman Society,
Dr. B.R.Ambedkar Road,
Opp: Civil Hospital
Belagavi-590001.
53. M.S.Sangolli
Major
R/at: C/o. C-221 Staff Quarters
JNMC Campus, Nehrunagar
Belagavi-590 001.
54. S.S.Sangolli
Major
R/at: C/o. C-221 Staff Quarters
JNMC Campus, Nehrunagar
Belagavi-590 001.
55. Smt. Pushpalata S.Panchal
Major
R/at Balamkar Galli
Guryal Chawal
Old Hubli-580028.
56. Suresh B.Bannur
Major
R/o. Abhiman Society,
Dr. B.R.Ambedkar Road,
Opp: Civil Hospital
Belagavi-590001.
57. Smt. Ratnaprabha Maraguddi
Major
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NC: 2023:KHC-D:14987-DB
RFA No. 719 of 2015
R/o Vijaynagar
Belagavi-591 108.
58. K.M.Gaokar
Major
R/o. Abhiman Society,
Dr. B.R.Ambedkar Road,
Opp: Civil Hospital
Belagavi-590001.
59. Smt. S.S.Shintre
Major
R/o. Abhiman Society,
Dr. B.R.Ambedkar Road,
Opp: Civil Hospital
Belagavi-590001.
60. Smt. Indumati R.Mudhol
Major
R/o. Plot No.2269
Sector No.II,
Mahantesh Nagar
Belagavi-590016.
61. Ravindra P.Joshi
Major
R/o. Plot No.2269
Sector No.II,
Mahantesh Nagar
Belagavi-590016.
62. Sangamesh Desai
Major
R/o. c/o. R.R.Biradar
R/o. Abhiman Society,
Dr. B.R.Ambedkar Road,
Opp: Civil Hospital
Belagavi-590001.
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NC: 2023:KHC-D:14987-DB
RFA No. 719 of 2015
63. Smt. Vijaya S.Patil
Major
R/o. B.C.No.9
Fort, Belagavi-590002.
64. Shantgouda B.Patil
Major
R/o. Abhiman Society,
Dr. B.R.Ambedkar Road,
Opp: Civil Hospital
Belagavi-590001.
65. Madhukar V.Deshpande
Major
R/o. 3546, Risaldar Galli
Belagavi-590 001
Presently R/at
Plot No.75, Mahabaleshwarnagar
Hindalga Road, Belagavi-591108.
66. Smt. Mangala R.Badkar
Major
R/o. 3470, Samadevi Galli
Belagavi-590 001.
67. C.V.Inamdar
Major
R/o. Rajkumar Talkies Road
Nargund Compound Extn.
Bagalkot-587 101.
68. Smt. Prema Vidyanathan
Major
R/o. Abhiman Society,
Dr. B.R.Ambedkar Road,
Opp: Civil Hospital
Belagavi-590001.
69. Smt. Chaya T.Mane,
Major
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NC: 2023:KHC-D:14987-DB
RFA No. 719 of 2015
R/o. Abhiman Society,
Dr. B.R.Ambedkar Road,
Opp: Civil Hospital
Belagavi-590001.
70. Smt. S.S.Javakar
Major
R/o. Abhiman Society,
Dr. B.R.Ambedkar Road,
Opp: Civil Hospital
Belagavi-590001.
71. V.C.Choushetty
Major
R/o. Abhiman Society,
Dr. B.R.Ambedkar Road,
Opp: Civil Hospital
Belagavi-590001.
72. S.S.Benavalkar
Major
R/o. Abhiman Society,
Dr. B.R.Ambedkar Road,
Opp: Civil Hospital
Belagavi-590001.
73. Smt. Drakshayani Hadimani
Major,
R/o. 1986, Koregalli,
Shahapur, Belagavi-590 003.
74. Smt. Parvathi R.Vastrad
Major
R/o. Abhiman Society,
Dr. B.R.Ambedkar Road,
Opp: Civil Hospital
Belagavi-590001.
75. H.D.Patel
Major
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NC: 2023:KHC-D:14987-DB
RFA No. 719 of 2015
R/o Dutta Nivas, Khanapur Road,
Tilakwadi, Belagavi-590 006.
76. Smt. Anjana M.Shinde
Major
C/o. S.S.Muchandi
Sahadev Smriti Near Police Station
Somvar Peth, Tilakwadi
Belagavi-590 006.
77. Smt. Tulsi V.Patil
Major
R/o. Abhiman Society,
Dr. B.R.Ambedkar Road,
Opp: Civil Hospital
Belagavi-590001.
78. K.B.Odugoudar
Major,
R/o. Abhiman Society,
Dr. B.R.Ambedkar Road,
Opp: Civil Hospital
Belagavi-590001.
79. Smt. Nirmala R.Hire Desai,
Major,
R/o. Abhiman Society,
Dr. B.R.Ambedkar Road,
Opp: Civil Hospital
Belagavi-590001.
80. Smt. Sushila Hebbal
Major
R/o. 43/27, Tanaji Galli,
Belagavi-590001.
81. Rajesh B.Kankarti
Major,
R/o. 585, Patil Galli,
Belagavi-590001.
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NC: 2023:KHC-D:14987-DB
RFA No. 719 of 2015
82. P.S.Nilajikar,
Major,
R/o. Abhiman Society,
Dr. B.R.Ambedkar Road,
Opp: Civil Hospital
Belagavi-590001.
83. Smt. Yallawwa Rudrapure
Major,
R/o. Abhiman Society,
Dr. B.R.Ambedkar Road,
Opp: Civil Hospital
Belagavi-590001.
84. K.M.Hargoli
Major,
R/o. Abhiman Society,
Dr. B.R.Ambedkar Road,
Opp: Civil Hospital
Belagavi-590001.
85. Sri. D.B.Jadhav
Major,
R/o. Abhiman Society,
Dr. B.R.Ambedkar Road,
Opp: Civil Hospital
Belagavi-590001.
86. Smt. C.C.Manjrekar
Major
R/at No.904/B Inamdar
Building, Tanaji Galli,
Belagavi-590001.
87. R.B.Patil
Major,
R/at No.1319, Tilak Chowk,
Belagavi-590001.
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NC: 2023:KHC-D:14987-DB
RFA No. 719 of 2015
88. Abhay Singh Garewal
Major,
R/at B.C.No.85
Camp Belagavi-590001.
89. S.B.Somannavar
Major,
R/o. 2nd Floor,
Amman Building Main Road,
Shivajinagar, Belagavi-590001.
Respondents No. 90 to 93
impleaded vide
Court Order dated 05.10.2018.
90. Jaitunabi
W/o. Gajabarsab Nadaf,
Age:80 years, Occ:House Wife,
R/o. 2253, Kotagi Galli,
Taluk:Hukkeri, District:Belagavi
91. Kulasama
W/o. Nabisab Nadaf,
Age:56 years, Occ: House Wife,
R/o. Bazar Road, Ankalagi,
Taluk:Gokak, District:Belagavi
92. Jahara @ Jahanara
W/o. Nisarahamed Nadaf,
Age:55 years, Occ:House wife,
R/o. Plot No.2/2, Block No.6,
Bauxite Road, Ajam Nagar,
District: Belagavi.
93. Shankar Shivaputra More
Age:46 years, Occ: Advocate,
R/o. Scheme No.40, Plot No.120
Hanuman Nagar,
Taluk and District: Belagavi-591108.
...Respondents
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NC: 2023:KHC-D:14987-DB
RFA No. 719 of 2015
(By Sri. V.M.Sheelvant, Advocate, for C/R1-R10 & for R4 (A
& B);
R11-R89 notice dispensed with v/o dated 11.08.2015;
Sri. B.K.Malligwad, Sri. C.G.Sadare, and
Sri. P.G.Chikkanaragund, Advocates, for R11(a & b);
R46 (a & b) are served;
R33 is transposed as appellant No.42;
Sri. Sharad V.Magadum, Advocate, for R90 to R92;
Smt. Geetha K.M @ Pawar, Advocate, for R93)
This RFA is filed under section 96 of CPC against the
judgment dated 29.04.2015 passed in O.S.No.160/2003
on the file of the II Additional Senior Civil Judge & CJM,
Belagavi, partly decreeing the suit for declaration and for
consequential relief of possession and permanent
injunction.
This RFA pertaining to Dharwad Bench, having been
heard and reserved on 21.09.2023, and coming on for
pronouncement through video conferencing this day,
Sreenivas Harish Kumar J., sitting at Principal Bench,
Bengaluru, pronounced the following:
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NC: 2023:KHC-D:14987-DB
RFA No. 719 of 2015
JUDGMENT
The judgment and decree dated 29.04.2015 in
O.S.160/2003 on the file of II Additional Senior
Civil Judge, Belagavi, is assailed by some of the
defendants in the suit.
2. Kashimsab Peersab Nadaf, the original
plaintiff, claimed the following main reliefs in the
suit:
(i) Declaration that the sale deeds
dated 16.12.1998 and 19.12.1998
executed by second defendant in
favour of first defendant purporting
to transfer the suit lands were
illegal, void ab-initio and without
any legal sanctity;
(ii) Declaration that the allotments and
transfers of the plots by the first
defendant in favour of defendants 2
to 120 were illegal and invalid;
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NC: 2023:KHC-D:14987-DB
(iii) Possession of the suit property from
defendants 1 to 120;
(iv) Permanent injunction restraining the
defendants or anybody claiming
under them from interfering with his
actual physical and peaceful
possession.
2.1. The subject matter of the suit is 8 acres
12 guntas of land comprised in Sy.No.6/B situate
on Hindalga Road, Taluk and District Belagavi
('suit land' for short).
2.2. The plaintiff obtained conversion of the
suit land from agricultural to non-agricultural
purpose and then entered into an agreement of
sale on 09.06.1982 with the first defendant, a
housing cooperative society ('society' for short).
The total sale consideration agreed to be paid by
the society was Rs.5,00,000/- and a sum of
Rs.10,000/- was paid to the plaintiff towards
earnest money. Defendant no.2 was the Secretary
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NC: 2023:KHC-D:14987-DB
and defendant no.3 was the President of the
society. The plaintiff alleged that defendant no.2
persuaded him to execute a general power of
attorney in his favour in order to carry out the
formalities required to be completed by him for
completion of the sale transaction in favour of the
society. The plaintiff, being not aware of the
mischievous, sinister and impious designs of
defendants 1 to 3, executed a general power of
attorney in favour of the second defendant on
26.04.1984. At that time, the second defendant
was functioning as the Secretary of the society and
could not have acted in dual capacity as the
Secretary of the society as also the general power
of attorney holder of the plaintiff. Being a
businessman and resident of Sankeshwara, the
plaintiff could not make himself personally
available to sign the documents and papers which
were to be submitted to the authorities. Further,
the second defendant and the other directors
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NC: 2023:KHC-D:14987-DB
prevailed upon the plaintiff to execute power of
attorney as he was one of the directors of the
society. In these circumstances, the power of
attorney came into existence, as stated by the
plaintiff.
2.3. The terms of the agreement stipulated
that the society should make payment of at least
Rs.10,000/- every month to the plaintiff, the
possession of the suit land would be delivered
after receipt of the entire sale consideration and
the sale deed would be executed within a period of
one month from the date of receipt of total
consideration after obtaining N.A. permission from
the Deputy Commissioner. According to the
plaintiff the total sum that he received towards
consideration was Rs.1,20,000/-; the first and the
second defendants failed to abide by the terms and
conditions of the agreement in regard to payment
of the sale consideration amount. The plaintiff
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NC: 2023:KHC-D:14987-DB
suspected the bona fides of the second defendant
when the latter started avoiding him. Therefore he
got issued a notice dated 18.08.1988 to the second
defendant canceling the power of attorney. The
notice was duly served on the second defendant,
but there was no response to the notice. The
terms of the agreement were also not complied
with. In view of this development, the plaintiff
had to institute a suit, O.S.1181/1989 for
permanent injunction in the court of III Additional
Munsiff, Belagavi, to restrain the society from
alienating or distributing the plots formed in the
suit land to any third person. The suit was
dismissed. Challenging the same the plaintiff
preferred R.A.21/1996 to the court of III
Additional Civil Judge (Senior Division), Belagavi.
Since the R.A. was also dismissed, he preferred a
regular second appeal to the High Court. By
judgment dated 09.04.1998, the second appeal
was allowed and the suit was decreed reversing
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NC: 2023:KHC-D:14987-DB
the judgments of the trial court and the first
appellate court. The society then approached the
Supreme Court by preferring Special Leave Petition
No. 10122/1999 which was allowed and the matter
was remanded to the High Court for disposing of
the second appeal afresh. After the remand, the
plaintiff wanted to amend the plaint to seek
additional reliefs of declaration and possession,
but the High Court dismissed the appeal by
judgment dated 24.6.2000 and also the
amendment application, reserving liberty to the
plaintiff to file a comprehensive suit for the reliefs
that he was entitled to. Therefore the plaintiff
stated that in view of the liberty given to him, the
cause of action arose to claim the aforesaid reliefs
in the suit.
3. Defendants 1, 3, 14, 37, 49, 56, 60, 92,
114 and 121 filed separate written statements. At
a later stage, some other defendants also filed
written statements. It is enough to refer to the
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NC: 2023:KHC-D:14987-DB
written statement of defendant No.1-society as the
other defendants have also taken the same
contentions. The first defendant does not dispute
that the suit land belonged to the plaintiff and that
it entered into an agreement with him for
purchasing it. The first defendant also admitted
its liquidation and appointment of the Deputy
Registrar of Cooperative Societies as the
administrator. The specific plea is that as the suit
land was situated within the Corporation limit of
Belagavi City, the plaintiff was found to have
possessed excess land. According to section 6 of
the Urban Land (Ceiling and Regulation) Act, 1976,
('the Act' for short) the plaintiff was required to
file a declaration under the said provision. The
plaintiff, therefore, made an application to the
Government of Karnataka under section 20 of the
Act seeking exemption and permission to sell the
excess land. The Government held an enquiry and
granted exemption with a condition that the
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NC: 2023:KHC-D:14987-DB
excess land should be sold in favour of the society
alone. While granting exemption another condition
was also imposed stating that the plaintiff should
get the suit land converted for non-agricultural
purpose before executing the sale deeds. The
plaintiff was a resident of Sankeswara Town and he
was unable to attend to all the offices frequently
to complete the formalities of obtaining the
conversion order and therefore he appointed Sri
M.N.Kanchagar, the second defendant, as his
power of attorney to appear before the
Government and other competent authorities.
Under the power of attorney, he authorized the
second defendant to execute the sale deeds. After
the Government granted exemption under section
20 of the Act, the plaintiff applied for conversion
and it was granted. But the plaintiff challenged
the conversion order by preferring an appeal to the
Karnataka Appellate Tribunal and it was
dismissed. Thereafter, the second defendant in
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NC: 2023:KHC-D:14987-DB
the capacity of power of attorney holder of the
plaintiff executed sale deeds in favour of the
society. Pursuant to the sale deeds the society
formed a layout with the approval of Belgaum
Urban Development Authority ('BUDA' for short).
In accordance with the order of approval, the
society handed over the roads, open space and the
areas earmarked for civic amenities to BUDA which
thereafter allotted civic amenity area to the
Badminton Association for construction of a
badminton hall. The plaintiff was aware of all
these developments. Many of the members
constructed houses in the plots allotted to them.
3.1. The society further pleaded that in the
background of the above facts and circumstances,
BUDA and the Badminton Association should have
been made parties to the suit as in their absence
the suit cannot be decided. Therefore the suit is
bad for non-joinder of parties. A specific
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contention pleaded by the society was that the
plaintiff was aware of the sale deeds executed in
its favour by the time he filed O.S.1181/1989. If
at all the sale deeds were illegal in view of
cancellation of power of attorney, the suit should
have been filed within three years from the date of
the sale deeds. Therefore the suit is barred by
limitation. Another plea raised by the society was
that the liberty given by the High Court while
dismissing the second appeal did not give rise to
cause of action. Therefore the suit has to be
dismissed.
4. The trial court framed the following
issues and additional issues: -
ISSUES
1. Whether plaintiff proves that all four
sale deeds dated 16.12.1988 and
19.12.1988 executed by second
defendant in favour of 1 s t defendant
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NC: 2023:KHC-D:14987-DB
are null and void and without
sanctity?
2. Whether plaintiff proves that sale
deeds executed by defendant No.1 in
favour of defendant No.2 to 120 are
invalid sale deeds and defendant
No.1 has no such right to transfer
and allot said property to defendant
No.2 to 120?
3. Whether plaintiff proves that
description of suit properties are
sufficient to identify suit properties?
4. Whether suit is properly valued and
court feed paid are proper?
5. Whether suit is barred by law of
limitation?
6. Whether plaintiff is entitled for
reliefs sought?
7. What order or decree?
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NC: 2023:KHC-D:14987-DB
Additional issue framed on
10.06.2013
1. Does the defendant No.121 proves
that he is a bonafide purchase for
value?
Additional issue No.2 framed on
13.02.2014
1. Whether the defendant No.37 proves
that she is a bonafide p u rc ha s e of the
property for valuable amounts?
5. After assessing the evidence, both oral
and documentary, the trial court decreed the suit
of the plaintiff in terms of the reliefs claimed in
the plaint.
6. Appellant No.29 has filed an application
under Order 41 Rule 27 of CPC to produce three
documents pertaining to the death of defendant
no.2 and defendant no.89. As these documents
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NC: 2023:KHC-D:14987-DB
are not helpful to decide the appeal, the
application deserves to be dismissed.
7. We have heard the arguments of the
learned counsel for the appellants and learned
counsel for the respondents.
7.1. Sri Ravi S Balikai, learned counsel for
appellant no.42 argued that, when the plaintiff was
found to have possessed excess land, he made an
application under section 20 of the Act to the
Government seeking permission to alienate the
same. The Government accorded exemption under
section 20 by order dated 21.03.1988 by imposing
a condition that the plaintiff should sell the suit
land to the society. Much before granting
exemption, the plaintiff had entered into
agreements of sale with the society on 19.6.1982,
16.10.1985, 25.06.1986 and 27.11.1987 and
possession of suit land was also delivered to the
society. The plaintiff received totally an amount of
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NC: 2023:KHC-D:14987-DB
Rs.4,59,229.25 from the society and the balance
of Rs.40,770.75 was also paid. The plaintiff does
not dispute execution of agreements of sale and
obtaining exemption under section 20 of the Act.
In spite of the fact that the balance consideration
had been paid, the plaintiff filed O.S.1181/1989
alleging that he had cancelled the power of
attorney executed in favour of the second
defendant and the society started selling the plots
formed in the suit land without paying the balance
of sale consideration. It was the specific
contention of the society and other defendants that
if at all the plaintiff had cancelled the power of
attorney, notice of the same was not served on
defendant no.2, the power of attorney holder.
Though the suit O.S.1181/1989 was for permanent
injunction, the court gave a finding that there was
no cancellation of GPA and possession of the suit
land was not with the plaintiff. Ultimately the suit
came to be dismissed. The plaintiff preferred an
- 46 -
NC: 2023:KHC-D:14987-DB
appeal challenging the decree and the appeal was
also dismissed. Then the plaintiff preferred a
second appeal, RSA 896/1996 before the High
Court, which was allowed and therefore the society
approached the Supreme Court by filing Special
Leave Petition 10112/1999. The Special Leave
Petition was allowed, the judgment of the High
Court in RSA was set aside and the matter was
remanded to the High Court for disposal afresh.
When the second appeal was taken up for fresh
hearing, the plaintiff filed an application for
amending the plaint to claim the relief of
declaration of title. But the High Court dismissed
the appeal as well as the application. When the
second appeal was dismissed, the High Court
clearly held that both the courts below had rightly
come to conclusion that there was no cancellation
of general power of attorney. It is a fact that
defendant no.2, in the capacity of power of
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NC: 2023:KHC-D:14987-DB
attorney holder of the plaintiff executed sale deeds
in favour of the society.
7.2. Sri Ravi Balikai argued further that
when the finding of the High Court became final,
the plaintiff could not have taken the same plea of
cancellation of power of attorney in his second
suit for comprehensive reliefs. In this regard he
argued that the plaintiff resorted to filing the
present suit because of liberty given by the High
Court while dismissing RSA. The plaintiff claimed
the liberty given by the High Court as cause of
action for the suit, which can never be considered.
This liberty did not permit the plaintiff to raise the
same pleas which he had taken in O.S.1181/1989.
If at all the plaintiff had any right over the suit
land, he should have filed the suit based on a
different cause of action. Therefore the suit is not
maintainable as it is hit by principles of res
judicata.
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7.3. Sri Ravi Balikai also argued that the suit
was highly time barred. When the society filed
written statement in O.S.1181/1989, it was
specifically contended that defendant no.2 being
the power of attorney holder to the plaintiff
executed the sale deeds in favour of the society.
The plaintiff came to know about the sale deeds
then itself. For this reason the suit should have
been filed within three years from the date of
knowledge. Though the defendants took up a
specific plea that the suit was time barred, the
trial court erroneously held that it was not time
barred.
7.4. He raised another point that the suit
was bad for non-joinder of necessary parties. In
this regard, it was his argument that after the
formation of layout in the suit land, the roads and
other civic amenity areas were handed over to
BUDA which in turn allotted one civic amenity site
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to the Badminton Association. The suit is not only
for declaration of title, but also for possession. In
the absence of BUDA and Badminton Association,
decree for possession cannot be granted and
hence the suit is bad for non-joinder of necessary
parties. The trial court has failed to notice this
important aspect of the legal position while
decreeing the suit, and therefore the appeal
deserves to be allowed.
7.5. Sri Ravi Balikai referred to statement of
objections filed in W.P.475/1989 and submitted
that the said writ petition was filed by one
Vasanth Ganesh Nagarkar challenging the grant of
exemption to the plaintiff under section 20 of the
Act; and the plaintiff being the respondent filed
statement of objections as per Ex.D8
unequivocally admitting the execution of sale
deeds in favour of the society through his duly
authorized power of attorney holder.
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8. Sri G.Balakrishna Shastry, learned counsel
for appellants No. 3, 4, 6, 8, 10, 13, 24, 27, 28,
30, 31, 32, 34, 35 and 40 argued that the
possession of the suit land was delivered to the
society pursuant to agreements of sale, and the
plaintiff has clearly admitted the formation of 120
plots in the suit land. The society made payment
of Rs.4,59,229.25 to the plaintiff and was also
ready to pay the balance. According to section
53A of the Transfer of Property Act, the
defendant/society can defend the suit for
possession and the trial court has erred in not
noticing this legal aspect.
8.1. Touching the question of limitation, Sri
G.Balakrishna Shastry argued that the trial court's
decision to hold the suit as not time barred cannot
be sustained, in as much as from the deposition of
PW1 it could be very much made out that the
plaintiff had the knowledge of execution of sale
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deeds. Moreover as seen from the documents
marked in O.S.1181/1989, BUDA issued
commencement certificates to the members of the
society to construct houses. The cause of action
for seeking declaration arose long back, i.e., when
the commencement certificates were issued. He
also argued that section 14 of the Limitation Act
cannot be applied because O.S.1181/1989 was not
instituted in a wrong forum.
9. Sri Mruthunjay Tata Bangi, learned counsel
for the appellants no. 7, 9, 11, 12(a-c), 15, 16, 18
to 23, 26, 33, 38, 39, 41, 14, 37 and 29, besides
reiterating the grounds urged by Sri Ravi S Balikai,
highlighted that the trial court has overreached the
orders of the High Court and considered the points
which estopped the plaintiff from urging them in
the subsequent suit. The observations of the trial
court that the judicial review is permissible as
observations made in the previous round of
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litigation do not amount to res judicata cannot be
accepted at all. In this case the limitation started
running when the written statement in
O.S.1181/1989 was filed and once the limitation
commences, it never stops and cannot be extended
for any reason. The plaintiff states about fraud,
but it is not pleaded and proved. He also argued
another point that the plaintiff applied for
exemption under section 20 of the Act to avoid
vesting of excess land in the Government. While
granting exemption the Government subjected the
plaintiff to a condition that he should sell the land
in favour of the society only. If the plaintiff had
not agreed to that condition, he would have lost
the land. In this view, the plaintiff cannot now
take a stand that he had cancelled the power of
attorney or question the validity of the sale deeds
executed by the power of attorney.
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10. Sri V.M.Sheelvant, learned counsel for the
respondents/L.R.s of the plaintiff, argued that in
order to understand as to when the cause of action
arose for the suit, para 10 of the plaint in the
earlier suit is to be read. For the former suit, the
cause of action was non-payment of the balance of
consideration amount and for the present suit, the
cause of action is different. In paras 11 and 12 of
the written statement in the former suit it is not
stated that sale deeds had already been executed.
What is seen is a kind of misleading statement and
there is nothing to indicate that the sale deeds had
come into existence even before the written
statement was filed. Therefore for the present
suit, the cause of action is to be reckoned from the
date of knowledge about the sale deeds. Though it
is stated in the plaint that the cause of action
arose after the High Court gave liberty to file a
comprehensive suit, the entire plaint is to be read
to arrive at a conclusion as to when the cause of
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action arose. The former suit was for a bare
injunction and the issues framed therein were
different from the issues framed in the present
suit. There was no issue with regard to
cancellation of the power of attorney by the
plaintiff. In fact there is an observation by the
court that there are discrepancies in the dates of
receipt of notice of cancellation and therefore
plaintiff was not able to prove cancellation of
power of attorney. Referring to this observation,
Sri V.M.Sheelvant submitted that it is not a
specific finding, but it is a passing remark or
observation which cannot be considered to hold
that the present suit is barred by res judicata.
10.1. Referring to the statement of objections
filed by the plaintiff in W.P.475/1989, Sri
Sheelvant argued that a statement said to have
been made by the plaintiff about the sale deeds
cannot be treated as admission because the
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statement of objections was not accompanied by a
verifying affidavit and therefore the defendants
cannot rely upon that statement of objections.
10.2. With regard to exemption granted by the
Government under the Act, Sri Sheelvant argued
that though the Government subjected the plaintiff
to a condition that he should sell the land in favour
of the society, this does not mean that the said
condition would legalize the sales made by the
power of attorney holder without payment of
consideration amount. On the pretext that the
excess land would have vested in the Government,
the society cannot venture to do illegal acts and
seek to justify the same. Thus the sale deeds
executed by the power of attorney holder illegally
cannot be held to be valid, specially when the
second defendant could not have acted in dual
capacity both as the secretary of the society and
the power of attorney holder of the plaintiff.
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10.3. Sri V.M.Sheelvant also pointed out that
in the former suit the trial court granted an order
of temporary injunction. When the said order was
in force, the defendants 2 to 120 purchased the
plots in violation of the injunction order and
therefore the sale transactions were illegal. DW1
and DW2 are the subsequent purchasers of some
plots without knowledge of cancellation of power of
attorney and therefore their evidence cannot be
considered. In fact their evidence discloses that
they were aware of the pendency of disputes
between the society and the plaintiff and thus they
ran the risk of purchasing the plots. The
defendants not only defrauded the plaintiff but
also played fraud on the court, and their
transactions should never be validated. He then
submitted that in spite of the sale said to have
been made by the society to its members, the City
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Survey Extracts in respect of the suit land still
continue in the name of the plaintiff.
10.4. Meeting the ground of allotment of civic
amenity area to Badminton Association, Sri
V.M.Sheelvant submitted that when the layout was
formed, 50% of the land was allowed to be used
for the residential purpose and the remaining land
was earmarked for roads, parks, open space, etc.,
The plaintiff only claimed the reliefs in respect of
residential plots excluding the land earmarked for
civic amenity purposes. In this view, it was not
necessary to implead the BUDA or the Badminton
Association as parties to the suit and the suit was
not bad for non-joinder of necessary parties. He
therefore argued that viewed from any angle, the
judgment of the trial court does not suffer from
legal infirmity and there are no grounds to
interfere with well reasoned judgment and hence
appeal deserves to be dismissed.
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11. In reply, Sri Ravi S Balikai and Sri
Mruthunjay Tata Bangi submitted that the reasons
given by the plaintiff for not making BUDA and the
Badminton Association as parties to the suit cannot
be accepted. They submitted that the layout was
formed by the society and at that time plots as
well as civic amenity areas were separately
earmarked. The suit is filed in respect of the
entire land. The plaint does not indicate that the
civic amenity areas are excluded, and therefore
BUDA and Badminton Association were necessary
parties.
12. From the arguments, the points arising for
discussion are :
(i) Could the trial court have given a
finding that the power of attorney
stood cancelled contrary to specific
finding in O.S. 1181/1989 that there
was no evidence of communicating
the cancellation of power of attorney
by the plaintiff? Whether finding
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about power of attorney in
O.S.1181/1989 which attained
finality falls within the meaning of
section 11 of Code of Civil Procedure
to apply principle of res judicata?
(ii) Has the trial court correctly held that
the suit is not time barred?
(iii) Could the trial court have granted
the reliefs claimed by the plaintiff in
the absence of BUDA and Badminton
Association as parties to the suit?
(iv) What order?
Point No. (i):
13. The plaintiff founded the suit on the
premise that since he cancelled the power of
attorney dated 26.4.1984, the sale deeds executed
by the second defendant in favour of society were
illegal, and resultantly the sale deeds executed by
the society in favour of its members became
inconsequential. The suit land earlier belonged to
plaintiff; he entered into agreements of sale with
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the society; he applied for exemption under
section 20 of the Act; and he also executed a
power of attorney in favour of second defendant -
these are all undisputed facts. The plaintiff
himself pleaded about the suit O.S.1181/1989
instituted by him earlier, and its trajectory till the
decree passed by the court of first instance
attaining finality with the dismissal of RSA
896/1996 by judgment dated 24.6.2000 of this
court. When RSA 896/1996 was pending before
this court after remand from the Hon'ble Supreme
Court, the plaintiff wanted to amend the plaint in
order to seek the relief of declaration of title, but
the application for amendment was dismissed,
however, this court granted liberty to the plaintiff
to file a comprehensive suit. The liberty thus
given by this court prompted the plaintiff to
institute another suit for comprehensive reliefs as
aforesaid.
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14. There is no doubt that if there was valid
termination of power of attorney much before the
second defendant executed the sale deeds in
favour of the society, the society would not have
acquired title over the suit land. But the finding in
O.S.1181/1989 was that the power of attorney did
not get cancelled or terminated because the
plaintiff failed to prove that the notice of
cancellation issued by him was served on
defendant no.2, and resultantly the sale deeds
executed by defendant no.2 in the capacity of
power of attorney holder did not become invalid.
As this finding became final with the dismissal of
plaintiff's second appeal, RSA 896/1996, a
question - whether the trial court could have
decided the same aspect once again, would arise.
15. After referring to oral testimony of PW1
and a number of exhibited documents, the trial
court has held that findings in an earlier injunction
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suit does not operate as res judicata for the
subsequent title suit. To arrive at this conclusion,
the trial court has placed reliance on judgments of
this court in Basamma and Others vs Devamma
and Another 1 and B.N.Jayasurya since
deceased by L.Rs vs Bangalore City
Corporation and Another 2 where it is held that
decree in an injunction suit does not operate as
res judicata in a subsequent suit. Accepting the
argument of the plaintiff's counsel that the
findings in RSA 896/1996 were mere observations,
the trial court proceeded to discuss the evidence
and give a finding that the notice of cancellation of
power of attorney was duly served on the second
defendant on 20.08.1988. The trial court has
noticed that neither the society nor the second
defendant found it necessary to adduce evidence in
20 11 (3) K C CR 21 39
20 01 (3) K C CR 16 08
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order to rebut the plaintiff's case about
cancellation of power of attorney.
16. At the outset, it may be stated that the
findings of the trial court are misconceived, what
is seen is mechanical reliance on the case law
without understanding as to in what context it
came to be held in Basamma and Jayasurya that
decree in an injunction suit would not operate as
res-judicata.
17. In the case of Basamma, the factual
position was, the plaintiff first instituted a suit,
O.S.361/1997 for permanent injunction against
one Maranna. The subsequent suit, O.S.397/1997
was for specific performance of contract, not
against Maranna, but against Siddappa and
Siddamma, both being spouses. The true owner of
the property in question was Siddamma, but it
appears that she and her husband had executed an
agreement of sale. The suit summons on
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Siddamma was not served as she was dead by that
time, and Siddappa also did not appear before the
court. This resulted in suit being decreed ex-
parte. It appears that miscellaneous proceeding
was initiated for restoration of suit, and the suit
was restored. The suit was dismissed after
contest, and the appeal preferred thereafter was
also dismissed. In the second appeal what was
noticed was, the real fight of the plaintiff was not
against the defendants, but against Maranna
against whom a suit for injunction O.S.361/1997
had been filed, and the plaintiff tried to make use
of decree in that suit in the subsequent suit for
specific performance. But in the subsequent suit,
Maranna was not a party, and he was not a party
to the contract also. In this context, it was held by
learned single Judge, while deciding the RSA that
decree in injunction suit would not operate as res-
judicata.
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18. The case of B.N.Jayasurya depicts the
facts that the first suit was for permanent
injunction in respect of a small bit of a land
against the City Corporation and it was decreed.
The second or the subsequent suit was also for
permanent injunction, not in respect of a bit of
land, but in respect of entire land. The
corporation pleaded that it was entitled to utilize
the land for formation of road and other public
purposes as the land vested in it according to
section 174 of Karnataka Municipal Corporation
Act. Therefore in the subsequent suit, which was
dismissed, question of title arose, and moreover by
the time second suit was filed, there was a sea
change in the nature of property and title over the
land. It was in this context the learned single
Judge of this court held that the findings in an
earlier suit for injunction did not operate as res-
judicata. All that we need to say is that the trial
court should not have come to a conclusion about
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applicability of res-judicata without reading the
text of the judgments which it has relied upon. In
this case, res judicata cannot be applied, for the
following reasons.
19. In O.S.1181/1989 the relief claimed by
the plaintiff was to restrain the society, its agents,
henchmen, etc., from alienating or disposing of the
plots formed in the suit land. To claim this relief,
the plaintiff pleaded that the society was disposing
of the plots without paying the balance sale
consideration; he complained of violation of terms
of the agreement. He also pleaded that having
noticed the society and its office bearers being
defiant to the terms of the agreement, he
cancelled the power of attorney in favour of second
defendant and in spite of it, the society started
selling the plots. The main defence was that
power of attorney had not been cancelled; notice
of cancellation had not been served on second
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defendant and that the entire consideration had
been paid. The pleaded facts were very clear that
the plaintiff stated nothing about being in
possession of suit land and attempted interference
with his possession by the society. Very strangely
issue framed was,
"Whether the plaintiff proves that he is in
lawful possession of the suit property as
on the date of suit?"
20. Order 14 Rule 1 of CPC states that issues
arise when a material proposition of fact or law is
affirmed by the one party and denied by the other.
Apparently issue framed by the trial court was
wrong. However if the judgment in O.S.1181/1989
is seen, although the trial court gave a finding that
the plaintiff was not in possession, it discussed the
evidence and gave a finding that cancellation of
power of attorney was not proved. Although the
court framed the issue wrongly, the parties knew
about the issue to be proved and adduced evidence
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on the actual point of controversy. It is in this
background, the question relating to applicability
of res judicata has to be examined. Section 11
and its Explanation III of CPC are relevant.
"11. Res-judicata.--No Court shall
try any suit or issue in which the matter
directly and substantially in issue has
been directly and substantially in issue in
a former suit between the same parties,
or between parties under whom they or
any of them claim, litigating under the
same title, in a Court competent to try
such subsequent suit or the suit in which
such issue has been subsequently raised,
and has been heard and finally decided
by such Court.
Explanation I ......................
Explanation II........................
Explanation III.--The matter above
referred to must in the former suit have
been alleged by one party and either
denied or admitted, expressly or
impliedly, by the other."
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21. In the former suit here, i.e.,
O.S.1181/1989, the plaintiff alleged that he had
cancelled the power of attorney, and the same was
denied by the society. Therefore, though the trial
court wrongly framed the issue based on
possession, the actual controversy was about
cancellation of power of attorney which had a
bearing on other transactions of the society. The
actual reason to dismiss O.S.1181/1989 was a
finding on cancellation of power of attorney.
22. Now in the case on hand, the plaintiff has
pleaded about cancellation of power of attorney.
The first issue in the present suit cannot be
answered in favour of plaintiff unless there is a
finding on cancellation of power of attorney. The
clear finding in the former suit was that there was
no cancellation of power of attorney and it attained
finality which aspect is not disputed. This being
the factuality, the trial court should not have held
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that the present suit is not hit by res-judicata,
more so when the entire records in O.S.1181/1989
were placed before the trial court. It may be a
general principle that a decree in injunction suit
does not bar a subsequent suit for title, but before
arriving at any conclusion, the court must examine
the nature of injunctive relief sought and the
material facts pleaded to claim such a relief.
Framing the issue mechanically and placing
reliance on decided cases without understanding
the context in which observations are made, result
in miscarriage of justice. The decree in
O.S.1181/1989 precluded the plaintiff from raising
the same pleas in the subsequent suit in the light
of Section 11 of CPC. And therefore answer to
point no.(i) is that the trial court could not have
given a finding contrary to findings in
O.S.1181/1989; the suit is hit by res-judicata.
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Point No.(ii)
23. To hold that suit is not time barred, the
reason given by the trial court is that the High
Court, while dismissing the second appeal reserved
liberty with the plaintiff to file a comprehensive
suit, and that order itself presupposed that the
cause of action for the suit started running from
the date of order. And the High Court, while
granting liberty, has nowhere observed that the
plaintiff has to file the suit subject to law of
limitation. Issue in regard to limitation was
answered in negative in the sense that suit was
not time barred.
24. The above finding is not sustainable at all.
Before demonstrating as to how the suit was time
barred, something about cause of action for the
suit requires to be referred to. In Para 14 of the
plaint, it is pleaded-
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" The cause of action for the suit
arose on 24.06.2000 when the Hon'ble
High Court of Karnataka while disposing
of the RSA No.896/1996 observed that
the plaintiff is at liberty to file a
comprehensive suit for the relief sought
for by the plaintiff in the amendment
moved in the second appeal."
25. Thus according to plaintiff, liberty given
by High Court gave rise to cause of action and
therefore according to him, suit is not time barred.
The simple meaning of the term 'cause of action' is
a fact or bundle of facts that enable a person to
take legal action against another. Right to sue
must emanate from the pleaded facts. In DADU
DAYALU MAHASABHA VS. MAHANT RAM NIWAS
AND ANOTHER 3 it is held that:
"19. A suit is filed on a cause of
action. What would constitute a cause of
action is now well settled. It would
(2 0 08 )11 S C C 7 53
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mean a bundle of facts which would be
necessary to be proved by the plaintiff
so as to enable him to obtain a decree.
The first respondent's suit for
possession was premised on a legal
entitlement. The appellant herein also
claimed its right over the gaddi in
question. The trial court framed several
issues. Its discussion centred around
the respective pleas of the parties which
had fully been gone into. The suit was
dismissed. The first appellate court not
only went into the question of
possession of the first respondent over
the gaddi, as on the date of institution
of the suit, but the other questions."
(emphasis supplied)
26. In case liberty is granted to a party to file
a fresh suit or a comprehensive suit, the order of
granting liberty will never give rise to cause of
action nor can it be construed so. Once a suit is
finally adjudicated, any suit instituted
subsequently by any of the parties or persons
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claiming title under the parties to the suit must
plead independent cause of action*. Only when the
court permits a plaintiff under sub rule (3) of rule
1 of Order 23 of CPC* to withdraw the suit, he can
bring a fresh suit in respect of same subject
matter* but the fresh suit is also not immune to
law of limitation. This aspect becomes clear from
Order 23 Rule 2 CPC which states that the plaintiff
shall be bound by the law of limitation when he
files a fresh suit upon a permission granted under
Rule (1) of Order 23 CPC. This being the full rigor
of law of limitation, if liberty is granted at the
appellate stage to the plaintiff or parties litigating
under him and in case a fresh suit is instituted, the
cause of action therein must be independent of the
cause of action pleaded in the former suit. While
confirming the decree of the trial court, if the
appellate court grants liberty to the defendant or a
party litigating under him to file a suit, the cause
of action to be pleaded in such a suit must be
*Corrected vide chamber order dated 03.01.2024.
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independent and distinct, and in case cause of
action is traceable to defence taken by the
defendant in the former suit, such a cause of
action will be hit by Explanation IV to Section 11
of CPC.
27. Now in the case on hand, we have already
given a finding that the suit is hit by section 11 of
CPC. That apart, the evidence discloses that the
plaintiff was aware of the sale deeds executed by
the second defendant. PW1 who is the son of
plaintiff has clearly admitted in the cross
examination that the society had taken up a
contention in O.S.1181/1989 that in view of sale
deeds executed by M.N.Kenchagar, the defendant
no.2, it became the owner of suit property. PW1
has also admitted that he was accompanying his
father when O.S.1181/1989 was pending. In the
written statement filed by the society in
O.S.1181/1989, it was specifically pleaded that the
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defendant had rightly executed sale deed on
28.12.1988 in favour of Abhiman Apartment Co-
operative Society Ltd., Belgaum. The written
statement was filed on 27.09.1989. The plaintiff
himself adduced evidence as PW1 in
O.S.1181/1989 and his categorical admission in
the cross examination dated 25.03.1992 is that
when he perused Record of Rights (ROR) of the
suit land he came to know that the defendant
society had sold the plots to its members. More
than all, the statement of objections filed by the
plaintiff in W.P.475/1989 is very important. This
statement was marked as Ex.D37 in
O.S.1181/1989, and it is part of Ex.P8 in the
present suit. In para 3 of the objection statement
filed on 04.02.1989, the plaintiff has stated as
below.
"...........later on for the smooth
completion of the transaction and to
enable the third respondent society to
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move the competent authority such as
the Deputy Commissioner, Urban Land
Ceiling and the Belgaum Urban
Development Authority etc., I executed
a General Power of Attorney in favour of
Mahadev Nijalingappa Kanchegar. Later
on the registered sale deeds in respect
of the said lands are executed by my
duly appointed Power of Attorney with
my prior permission, consent and
knowledge and the sale deeds were
executed and registered on 16.12.1988
and 19.12.1988"
28. Therefore, it becomes amply clear that the
plaintiff was very much aware of existence of the
sale deeds by the time he filed the statement of
objections in W.P.475/1989. The society
contended about the sale deeds executed by the
second defendant in its favour when it filed
written statement on 27.09.1989 in
O.S.1181/1989. As already referred, there are
unequivocal admissions by P.W.1 in the present
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case and also the plaintiff in O.S.1181/1989 as to
having knowledge of sale of plots by the society.
The cause of action for the present suit, thus,
arose for the first time on 04.02.1989. According
to Article 58 of the Limitation Act, suit for
declaration has to be filed within 3 years from the
time when the right to sue first accrues. If the
right to sue accrued in the year 1989, the suit filed
in the year 2003 was clearly time barred. Though
the plaintiff has sought the relief of possession,
unless the title over the property is declared, relief
of possession which is ancillary to the main relief
of declaration cannot be granted.
29. Sri Ravi S. Balikai has placed reliance on
a judgment of the division bench of this court in
the case of UNION OF INDIA VS KARNATAKA
ELECTRICITY BOARD 4 to argue that the rules of
limitation are to be strictly applied and the present
I LR 1 987 K AR 2 5 5 2,
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suit being highly time barred should have been
dismissed at the trial court. It is held :
"8. Re: Point (a):
Before we proceed to examine the
correctness of the findings of the Court-
below on the question of limitation we
must advert to two other aspects.
Plaintiff appears to have relied upon
Exhibit P-5 urging that under that
document the defendant had admitted its
liability. But as rightly pointed out by the
Trial-Court, this document, Exhibit P. 5,
referred to in Para 9 of the plaint did not
pertain to the suit transaction at all but
related to some other transaction. The
correctness of this finding was not, in
our opinion rightly, disputed before us
by the Learned Counsel for the
respondent-plaintiff.
The second aspect is this: The Trial-
Court relying on the pronouncement of
the Supreme Court in the case of Madras
Port Trust v. Hymanshu International
[(1979) 4 SCC 176 : AIR 1979 SC 1144.]
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has permitted itself Certain observations
in regard to the morality of public
authorities taking recourse to the plea of
limitation. Laws of Limitation are laws of
repose and peace and are founded on
public-policy intended to eliminate the
unsettling influence of perpetual threats
of litigation. They are intended to quiet
stale demands. The old view that the
Rules of Limitation are infamous power
created by positive law to decrease
litigation and encourage dishonest
defences is not regarded now as sound.
All statutes of limitation have for their
object the prevention of the rearing up
of claims at great distances of time when
evidences are lost. In Jones v. Bellgrove
Properties Ltd., [(1949) 2 KB 700.] it
was observed:
".... .... If a claim is made for
payment of a debt many years after it
has been incurred, there may be
difficulty in proving that the debt ever
was in fact incurred or that it has not
already been paid and so forth. That is
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why the law bars the right of action after
a certain period has elapsed from the
accrual of the cause of action........"
Again in R.B. Policies at Lloyd's v.
Butler [(1950) 1 KB 76.] it was said:
"I agree with Mr. Atkinson that it is
a policy of the Limitation Acts that those
who go to sleep upon their claims should
not be assisted by the Courts in
recovering their property, but another,
and, I think, equal policy behind these
Acts, is that there shall be an end of
litigation, and that protection shall be
afforded against stale demands."
The Learned Judge, in that case,
approved the statement of Best, C.J. in
another case:
".... .... It, as I have heard it often
called by great judges, an act of peace.
"Long dormant claims have often more of
cruelty than of justice in them."
It is not therefore, permissible to
say that a plea of bar of limitation is
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either unjust or immoral despite the
possibility, that in some isolated cases
the Rules of Limitation might cause some
hardship. When a plea of limitation is
taken it is the duty of the Court to
adjudicate upon its merits Indeed in the
very Madras Port Trust case referred to
by the Trial-Court, the Supreme Court
has categorically stated that when a plea
of limitation is taken it requires to be
considered and pronounced upon on its
merits.
Indeed the words of Sarkar, J. in
Martin Burn Ltd. v. The Corporation of
Calcutta [AIR 1966 SC 529.], though in a
different context, are worth recalling:
"...... A result flowing from a
statutory provision is never an evil. A
Court has no power to ignore that
provision to relieve what it considers a
distress resulting from its operation. A
statute must of course be given effect to
whether a Court likes the result or not....
...."
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30. Section 14 of the Limitation Act cannot be
invoked in this case. This section is applicable
only when the plaintiff prosecutes a suit in good
faith in a court which cannot entertain it for defect
of jurisdiction or other causes of like nature.
O.S.1181/1989 had not been filed in a court which
had no jurisdiction to entertain it. The court which
decided that suit did have jurisdiction. Section 14
of Limitation Act, therefore does not help the
plaintiff.
31. Therefore, the finding of the trial court
about limitation cannot be sustained at all. Our
conclusion is that the suit was time barred.
Point No.(iii)
32. The argument of learned counsel for the
defendants was that BUDA and the Badminton
Association should have been made parties to the
suit. This was specifically pleaded in the written
statement. The trial court did not frame an issue
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relating to this plea. It is not in dispute that the
society formed a layout and then handed over the
roads and the plots reserved for public purposes to
BUDA. Thereafter BUDA allotted one plot to
Badminton Association which is in possession of
the same. Since the relief of possession is also
sought the plaintiff should have impleaded BUDA
and the Badminton Association as parties to the
suit. They are necessary parties in the sense that
in their absence even if decree for possession is
granted, it cannot be executed against BUDA and
Badminton Association. Therefore both should
have been made parties. But Sri V.M.Sheelvant,
learned counsel for the plaintiff, submitted that
the plaintiff would not claim the roads and civic
amenity areas and in this view, BUDA and
Badminton Association were not necessary parties.
This is a futile argument and also dislodges the
plaintiff's suit. The plaintiff has filed the suit over
the entire land including the roads and other civic
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amenity areas. If the plaintiff does not claim the
roads and the civic amenity areas in the layout, it
implies that he accepted the formation of layout by
the society subsequent to purchasing suit land.
This is how the plaintiff dislodges himself. For
these reasons, it is to be sated that the suit was
bad for non-joinder of necessary parties.
Point No.(iv)
33. From the discussion on points (i), (ii) and
(iii), the appeal deserves to be allowed. We may
also state that the plaintiff, instead of filing a suit
O.S.1181/1989 for injunction, should have filed a
suit for recovery of balance of sale consideration if
according to him the sale consideration was not
fully paid. Based on the agreements, he could
have filed a suit for specific performance against
the society if he was willing to execute the sale
deeds by receiving balance of sale consideration or
if the second defendant executed sale deeds by
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playing fraud on him or violating the terms of the
agreement, he could have filed a suit for
cancellation of sale deeds taking up the pleas of
fraud or mis-representation etc. If the plaintiff
thought that there was an eclipse on his title
because of the sale deeds executed by the second
defendant in favour of the society, he could have
claimed the same reliefs when he filed
O.S.1181/1989 as these reliefs were very much
available to him at that time. He omitted to claim
these reliefs. In this view the present suit is also
hit by Order 2 Rule 2 of CPC.
34. Therefore, we conclude that the appeal
deserves to be allowed with costs and now the
following:
ORDER:
(i) The appeal is allowed with costs
throughout.
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(ii) The judgment and decree dated
29.04.2015 in O.S.No.160/2003 on
the file of II Additional Senior Civil
Judge, Belagavi, is set-aside.
(iii) Suit is dismissed.
(iv) I.A.No.2/2015 filed by appellant No.29
under Order 41 Rule 27 CPC does not
survive for consideration. It is
dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
CKL
