Karnataka High Court

Sri Master A Mohan vs Sri Babu Reddy on 7 June, 2024

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                                                      RFA No. 2532 of 2007




                 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 7TH DAY OF JUNE, 2024

                                         BEFORE
                         THE HON'BLE MR JUSTICE C M JOSHI
                   REGULAR FIRST APPEAL NO. 2532 OF 2007 (INJ)
               BETWEEN:

               1. SRI MASTER A MOHAN,
                  S/O. APPAYANNA,
                  AGED ABOUT 34 YEARS.
                  (SINCE THE APPELLANT NO.1
                  ATTAINED MAJORITY, HE HAS
                  BEEN MADE AS AN INDIVIDUAL PARTY,
                  VIDE ORDER DATED 08.11.2023).

               2. SMT. SHYAMALAMMA,
                  W/O. APPAYANNA,
                  AGED ABOUT 52 YEARS.

                  BOTH ARE R/AT DODDABANASWADI,
                  BANASWADI POST, K.R. PURA HOBLI,
                  BANGALORE EAST TALUK.
                                                             ...APPELLANTS

Digitally signed (BY SRI V B SHIVA KUMAR, ADVOCATE)
by NANDINI R
Location: High AND:
Court of
Karnataka        1. SRI BABU REDDY,
                    S/O. JAYARAMA REDDY@
                    MANJUNATH, AGED MAJOR,

               2. SRI VISWANATHA @ SWAMY,
                  S/O JAYARAMA REDDY,
                  AGED MAJOR.

                  BOTH ARE R/AT OPP. GOVT SCHOOL,
                  DODDABANASWADI, BANASWADI
                  POST, K R PURA HOBLI,
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                                           NC: 2024:KHC:20046
                                         RFA No. 2532 of 2007




  BANGALORE EAST TALUK.
                                               ...RESPONDENTS

(SERVICE OF NOTICE TO R1 & R2 BY WAY OF PAPER
 PUBLICATION IS HELD SUFFICIENT V/O DATED 06.01.2020)

     THIS RFA IS FILED U/S.96(1) OF CPC AGAINST THE
JUDGMENT AND DECREE DATED 18.9.2007 PASSED IN
O.S.NO.5148/2004 ON THE FILE OF THE XVII ADDL. CITY
CIVIL JUDGE, BANGALORE (CCH-16), DISMISSING THE SUIT
FOR PERMANENT INJUNCTION.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
08.02.2024, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                        JUDGMENT

Aggrieved by the judgment and decree dated

18.9.2007 passed in O.S.No.5148/2004 by the learned

XVII Additional City Civil and Sessions Judge, Bangalore,

(CCH 16) dismissing the suit of the plaintiffs for

injunction, the plaintiffs have approached this Court in

appeal.

2. The parties would be referred to as per their

ranks before the trial Court for the sake of convenience.

3. Brief facts of the case of the plaintiffs are as

below:

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Plaintiff No.1 was the minor son of plaintiff No.2.

Property bearing No. 255 situated at Doddabanasawadi,

K.R. Puram, Bengaluru East Taluk measuring East-West

140 feet and North-South 110 feet bounded by 20 ft. road

on the East; BDA Road on the West, Property of

Chinnanna on the North and road on the South is

described to be the suit schedule property. The suit

schedule property is part and parcel of Survey No.255 and

earlier it was acquired by the father, grandmother of

plaintiff No.1 and his another uncle Chinnanna under a

sale deed dated 17-08-1960. Later, there was an oral

partition and the suit schedule property was allotted to the

father of plaintiff No.1 Appayanna. They contended that

the father of plaintiff No.1 gifted the above property

under a registered Gift Deed dated 30-04-2004 in his

favour, in pursuance to a family settlement, since there

was dispute among the father of the plaintiff and other

family members. It is contended that plaintiff No.2-

Syamalamma had no support from any of the members of

the family as Appayanna was addicted to bad vices. On

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16-07-2004, at about 11.00 a.m., the defendants

attempted excavation and put up foundation over the suit

schedule property and therefore, plaintiff No.2, lodged a

complaint to the police. It is stated that on 16-07-2004

when the plaintiffs approached the Police they did not take

any action as they were booked by defendants. Therefore,

the plaintiffs were constrained to approach the trial Court

seeking injunction to restrain the defendants from

interfering, dispossessing or excavating in the suit

schedule property and such other appropriate reliefs.

4. After service of summons, the defendants

appeared before the trial Court through their counsel and

filed their written statement.

5. Apart from denying the plaint averments to be

false and frivolous, they contended that Survey No.251/1

was the land adjoining Survey No.255 of the plaintiffs on

the southern side. It was contended that Survey No.251/1

was belonging to the defendants and the manner in which

the title passed on to the defendants was narrated in

detail. They admitted that Survey No.255 was purchased

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by Appayanna, his brother Chinnanna and their mother

Sunkamma on 17-08-1960 measuring 3 acres 31 guntas.

They contended that there is a Government drainage

running East-West in between Survey Nos.251 and 255.

They contended that the Appayanna, his brother and

mother have sold huge extent of lands under different sale

deeds to different persons and only a small extent of land

was retained. Now the plaintiffs are trying to grab the

land belonging to the defendants on the southern side and

have created a Gift Deed in favour of plaintiff No.1. It is

contended that the defendants are the owners in

possession and enjoyment of the property bearing Survey

No.251/1 and they acquired the same under the registered

Gift Deed dated 20-10-2004 and therefore, the plaint is

false and frivolous.

6. Inter-alia, they also contended that the

jurisdictional police called upon the defendants to produce

the documents and ultimately they had directed the Taluka

Surveyor to survey the property of the plaintiffs as well as

the defendants and he conducted the survey and

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submitted the report as well as the sketch to the police

which shows that the defendants are in possession of the

property owned by them and the plaintiffs have put up

illegal construction by encroaching the Government drain.

Therefore, the plaintiffs cannot seek any relief as their

allegations is concerning to the property which is situated

in Survey No. 251 belonging to the defendants. Hence,

they sought for dismissal of the suit. They contended that

they are in possession of the property measuring East-

West 116 feet; and North-South 20 feet on the Eastern

side and 41 feet on the Western side, bounded by Road

on West and South, Private property on the East and

property of B. Pilla Reddy on the North.

7. On the basis of the above pleadings, the trial

Court framed the following issues:

1. Whether the plaintiffs prove that they are in lawful possession of the suit schedule property on the date of suit?

2. Whether the plaintiffs further prove that defendants are interfering with the possession of the suit schedule property?

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3. Whether the plaintiffs are entitled to the injunction prayed for?

4. What order or decree?

8. Plaintiff No.2 was examined as PW1 and

Exhibits P1 to P18 were marked. Defendants did not

examine any witnesses on their behalf.

9. After hearing the arguments, the trial Court

answered issue Nos. 1 to 3 in the negative and dismissed

the suit.

10. The said judgment and decree is challenged

by the plaintiffs in this appeal. During the pendency of

this appeal, plaintiff No.1 attained majority and the

guardianship of plaintiff No.2 was discharged.

11. Despite service of notice, respondents/

defendants have not appeared before this Court.

12. On admitting the appeal, the trial Court records

have been secured and heard the arguments by learned

counsel for the appellants.

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13. The appellants have also filed an application

under Section 144 read with Section 151 of CPC in

(Misc.Cvl.6451/2010) for restitution of their possession

over the suit property. They have also filed an application

(IA No. 2/2007) under order 41 Rule 27 of CPC seeking to

produce the copy of the award in LAC No.189/1985, the

Tippan of the Survey Department pertaining to the suit

survey number. They have also filed an application (IA

No.1/2023) under Order 6 Rule 17 of CPC seeking to

incorporate a prayer regarding declaration of their title and

in the event court comes to the conclusion that the

plaintiffs have been dispossessed, the possession may also

be awarded to them.

14. Learned counsel appearing for the appellants

submitted that plaintiff No.1 was a minor and he was

represented by his mother, plaintiff No.2. There was

dispute between plaintiff No.2 and her husband and her in-

laws. When the defendants tried to encroach over the suit

schedule property belonging to plaintiff No.1, plaintiff

No.2 objected and filed a complaint before the police. The

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police had detained her in the police station as they were

hand in glove with the influential defendants. The

defendants forcibly entered into the suit schedule property

and constructed a shed. Plaintiff No.2 who deposed as

PW1 before the trial Court was cross-examined by the

defendants and she admitted that the defendants have

constructed the shed. However, she also explained that

she was dispossessed by the defendants while she was in

the police station. It is submitted that the trial Court came

to the conclusion that the plaintiffs are not in possession of

the suit schedule property as admitted by her in the cross-

examination and on that ground dismissed the suit.

Therefore, he submits that the application filed under

Section 144 read with 151 of CPC as well as the

applications for amendment of the plaint and production of

additional evidence deserve to be allowed in the interest of

justice and equity.

15. In this regard, he relies on the judgment of the

Apex Court in the case of Estralla Rubber Vs. Dass

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Estate (P) Ltd1 to contend that delay in filing application

under Order VI Rule 17 of CPC on its own is not a ground

for rejection of the application. He also relied on judgment

in the case of L.C.Hanumanthappa (since dead)

represented by his legal representatives Vs.

H.B.Shivakumar2 to contend that an amendment under

Order VI Rule 17 of CPC would have the 'doctrine of

relation back' and therefore, the application filed by the

appellant deserves to be allowed.

16. The points that arise for consideration in this

appeal are as below:

1) Whether the plaintiffs have proved that they are in lawful and actual possession over the suit schedule property?

2) Whether there was interference by the defendants?

3) Whether the applications filed by the plaintiffs for amendment of the plaint and restitution of the possession under Section 144 of CPC and

(2001) 8 SCC 97

(2016) 1 SCC 332

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also for adducing additional evidence under Order XLI Rule 27 of CPC deserve to be allowed?

Reg. Point Nos.1 and 2:

17. It is not in dispute that when the suit was filed

in the year 2004, plaintiff No.1 was a minor aged about 12

years and was represented by plaintiff No.2 i.e., his

mother Syamalamma. They contended that suit schedule

property was part of Sy.No.255 totally measuring 3 acres

31 guntas, and it was subject matter of gift by father of

plaintiff No.1-Appayanna. The Gift Deed dated 30.04.2004

is not in dispute by the defendants. The said Gift Deed is

produced at Ex.P1 and the boundaries mentioned in it is

same as that of the suit schedule property, except on the

South. Evidently, the gift was in pursuance to an

arrangement between Appayanna, his brother Chinnanna

and mother Sunkamma. The plaintiffs in order establish

their possession over the suit schedule property relied on

gift deed-Ex.P1 and the sale deed under which the father

of plaintiff No.2 and brother purchased the same on

17.08.1960, which is produced at Ex.P2.

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18. On the other hand, the defendants contended

that the plaintiffs have sold various portions of Sy.No.255

and the property bearing No.255 and the property owned

by the defendants i.e., Sy.No.251/1 is separated by a

Government Drain and the plaintiffs are claiming their

rights beyond the said drain in the property of the

defendants. In other words, they contended that after

selling the various portions of the property, the plaintiffs

are left with no property and they are trying to claim in

the property belonging to the defendants.

19. In order to establish the location of the suit

schedule property, the plaintiffs had produced a layout

plan and photographs. Evidently, the sketch/survey map

showing Sy.Nos.255 and 251/1 were not available.

Anyhow, the layout plan at Ex.P3 does not show the

survey numbers. The FIR and complaint filed against the

plaintiffs by Shantamma and others is produced at Exs.P9

and P10, wherein, it was alleged that the plaintiffs are

obstructing the defendants and their family members to

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construct a compound wall for their property bearing

Sy.No.251/1. Thus, it is evident that the location and

identity of the suit schedule property as to whether it is in

Sy.No.255 or Sy.No.251/1 was in dispute.

20. Be that as it may, plaintiff No.2, who deposed

as PW.1 was cross-examined and she admitted that the

defendants have put up the shed when she was arrested

and retained in the custody of the Police. This admission of

PW.1 in the cross examination dated 17.04.2007 shows

that there were survey sketches, which would have shown

that the defendants are encroaching into the suit schedule

property. It is also evident that the plaintiff denied that

there was any drain in between Sy.No.255 and Sy.No.251.

21. On the basis of the above admission by PW.1,

to the effect that the defendants have constructed a shed

and that she had admitted that about 02 acres situated on

the northern side of Sy.No.255 was sold to somebody and

that she was unable to explain the measurements, the trial

Court came to the conclusion that the plaintiffs have failed

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to establish their possession over the suit schedule

property.

22. Thus, it is evident that there are survey

sketches which would show where exactly the property

claimed by the plaintiffs is situated. Such best evidence is

not available before this Court. It is an admitted fact that

survey was conducted by the Tahsildar during the

pendency of the complaint filed by the defendants. It is

also evident that the defendants had denied the title of the

plaintiffs over the suit schedule property. When PW.1

admitted that certain portion of the property was sold, it

was necessary for the plaintiffs to establish that the suit

schedule property remained intact and they were in

possession. Under these circumstances, no fault can be

found with the finding of the trial Court that the plaintiffs

failed to establish that they were in actual possession and

enjoyment of the suit schedule property. No efforts were

made to get the property measured and establish the

boundaries as per the Gift Deed executed by Appayanna.

Therefore, when the plaintiffs had failed to establish their

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lawful possession, it cannot be said that they had proved

issue No.1. The trial Court had rightly come to the

conclusion that issue No.1 is not proved. Hence, this Court

also comes to the conclusion that the plaintiffs were

unable to establish that they were in lawful possession and

enjoyment of the suit schedule property. Consequently,

point Nos.1 and 2 are answered in the negative.

Reg. Point No.3:

23. During pendency of this appeal, plaintiffs have

filed application under Section 144 read with 151 of CPC

seeking restitution of possession of the suit schedule

property. Section 144 of CPC is in respect of restitution of

the property, the possession of which was taken over by

the other party on the basis of an order passed by the

Court. Evidently, the possession of the defendants was not

pursuant to an order passed by the Court. Section 144

was dealt by the Apex Court in the case of Indore

Development Authority (LAPSE-5 J.) v. Manoharlal3,

(2020) 8 SCC 129

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wherein, the Apex Court dealt the Principle of restitution in

following words:

"In re: Principle of restitution

335. The principle of restitution is founded on the ideal of doing complete justice at the end of litigation, and parties have to be placed in the same position but for the litigation and interim order, if any, passed in the matter. In South Eastern Coalfields Ltd. v. State of M.P. [ (2003) 8 SCC 648] , it was held that no party could take advantage of litigation. It has to disgorge the advantage gained due to delay in case lis is lost. The interim order passed by the court merges into a final decision. The validity of an interim order, passed in favour of a party, stands reversed in the event of a final order going against the party successful at the interim stage. Section 144 of the Code of Civil Procedure is not the fountain source of restitution. It is rather a statutory recognition of the rule of justice, equity and fair play. The court has inherent jurisdiction to order restitution so as to do complete justice. This is also on the principle that a wrong order should not be perpetuated by keeping it alive and respecting it. In exercise of such power, the courts have applied the principle of restitution to myriad situations not falling within the terms of Section 144 CPC. What attracts applicability of restitution is not the act of the court being wrongful or mistake or an error

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committed by the court; the test is whether, on account of an act of the party persuading the court to pass an order held at the end as not sustainable, resulting in one party gaining an advantage which it would not have otherwise earned, or the other party having suffered an impoverishment, restitution has to be made. Litigation cannot be permitted to be a productive industry. Litigation cannot be reduced to gaming where there is an element of chance in every case. If the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order. This Court observed in South Eastern Coalfields [(2003) 8 SCC 648] thus :

"26. In our opinion, the principle of restitution takes care of this submission. The word "restitution" in its etymological sense means restoring to a party on the modification, variation or reversal of a decree or order, what has been lost to him in execution of decree or order of the court or in direct consequence of a decree or order (see Zafar Khan v. Board of Revenue, U.P. ). In law, the term "restitution" is used in three senses : (i) return or restoration of some specific thing to its rightful owner or status; (ii) compensation for benefits derived from a wrong done to another; and (iii) compensation or reparation for the loss caused to another. (See Black's Law Dictionary, 7th Edn., p. 1315). The Law of

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Contracts by John D. Calamari & Joseph M. Perillo has been quoted by Black to say that "restitution" is an ambiguous term, sometimes referring to the disgorging of something which has been taken and at times referring to compensation for the injury done:

'Often, the result under either meaning of the term would be the same. ... Unjust impoverishment, as well as unjust enrichment, is a ground for restitution. If the defendant is guilty of a non-tortious misrepresentation, the measure of recovery is not rigid but, as in other cases of restitution, such factors as relative fault, the agreed-upon risks, and the fairness of alternative risk allocations not agreed upon and not attributable to the fault of either party need to be weighed.'

The principle of restitution has been statutorily recognised in Section 144 of the Code of Civil Procedure, 1908. Section 144 CPC speaks not only of a decree being varied, reversed, set aside or modified but also includes an order on a par with a decree. The scope of the provision is wide enough so as to include therein almost all the kinds of variation, reversal, setting aside or modification of a decree or order. The interim order passed by the court merges into a final decision. The validity of an interim order, passed in favour of a party, stands reversed in the event of a

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final decision going against the party successful at the interim stage. ...

27. ... This is also on the principle that a wrong order should not be perpetuated by keeping it alive and respecting it (A. Arunagiri Nadar v. S.P. Rathinasami [1970 SCC OnLine Mad 63] ). In the exercise of such inherent power, the courts have applied the principles of restitution to myriad situations not strictly falling within the terms of Section 144.

28. That no one shall suffer by an act of the court is not a rule confined to an erroneous act of the court; the "act of the court" embraces within its sweep all such acts as to which the court may form an opinion in any legal proceedings that the court would not have so acted had it been correctly apprised of the facts and the law. ... the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order even though the battle has been lost at the end. This cannot be countenanced. We are, therefore, of the opinion that the successful party finally held entitled to a relief assessable in terms of money at the end of the litigation, is entitled to be compensated by award of interest at a suitable reasonable rate for the period for which the interim

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order of the court withholding the release of money had remained in operation."

(emphasis supplied)

Therefore, application under Section 144 of CPC is not

applicable and cannot be invoked by the plaintiffs.

24. The second application filed by the plaintiffs is

regarding amendment of the plaint. By virtue of the

proposed amendment, the plaintiffs want to incorporate

para 11(a), 11(b) and an additional prayer seeking

declaration that the plaintiffs are the owners in possession

of the suit schedule property and in the event, the Court

comes to the conclusion that the plaintiffs are

dispossessed, then to direct the defendants to deliver the

possession. It is evident that the plaintiffs want to convert

the suit for injunction into a suit for declaration of title. It

is their contention that when plaintiff No.2 was detained in

the Police Station, the defendants have taken over the

possession of the property.

25. It is relevant to note that an appeal being

continuation of the suit, an application under Order VI Rule

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17 of CPC can very well be considered by the Court. The

judgment of the Apex Court in the case of Estralla

Rubber (referred supra) lays down that such an

application is maintainable. There cannot be any dispute

about the proposition of law laid by the Apex Court. There

is also no dispute that such amendment would be

governed by the doctrine of relation back. In the event the

application is allowed and an additional prayer for

declaration of title is permitted to be incorporated, then

obviously, such prayer would be governed by the law of

limitation. It cannot be said that the limitation would also

be governed by the doctrine of the relation back. The

judgment of the Apex Court in the case of

L.C.Hanumanthappa (referred supra) considers the

question of limitation that would be applicable for an

amendment brought to the plaint in detail and in para 29

of the judgment, it is held as below:

"29. Applying the law thus laid down by this Court to the facts of this case, two things become clear. First, in the original written statement itself dated 16-5-

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1990, the defendant had clearly put the plaintiff on notice that it had denied the plaintiff's title to the suit property. A reading of an isolated paragraph in the written statement, namely, Para 2 by the trial court on the facts of this case has been correctly commented upon adversely by the High Court in the judgment under appeal. The original written statement read as a whole unmistakably indicates that the defendant had not accepted the plaintiff's title. Secondly, while allowing the amendment, the High Court in its earlier judgment dated 28-3-2002¹ had expressly remanded the matter to the trial court, allowing the defendant to raise the plea of limitation. There can be no doubt that on an application of Khatri Hotels (P) Ltd., the right to sue for declaration of title first arose on the facts of the present case on 16-5-1990 when the original written statement clearly denied the plaintiff's title. By 16-5- 1993 therefore a suit based on declaration of title would have become time-barred. It is clear that the doctrine of relation back would not apply to the facts of this case for the reason that the court which allowed the amendment expressly allowed it subject to the plea of limitation, indicating thereby that there are no special or extraordinary circumstances in the present case to warrant the doctrine of relation back applying so that a legal right that had accrued in favour of the defendant should be taken away. This

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being so, we find no infirmity in the impugned judgment of the High Court. The present appeal is accordingly dismissed."

26. In the case on hand, written statement of the

defendants reads as below:

"It is specifically denied that property bearing No. 255, Katha No. 125, situated in Dodda Banaswadi, K.R Puram Hobli, Bangalore East Taluk, measuring East to West 143 Feet and North to South 110 Feet is the absolute property of the Plaintiff. It is specifically denied that the First plaintiff acquired right, title and interest in respect of the property by virtue of a Gift Deed executed by his father on 30.04.2004."

27. It is their specific case that the suit schedule

property does not comprise of in Sy.No.255 but it is in

Sy.No.255/1. Therefore, they had denied the title of the

plaintiffs over the suit schedule property. As such, even if

the amendment is allowed, it would be hit by the law of

limitation. The plaintiffs had to seek declaration of title

within three years from the date of filing of the written

statement i.e., 24.03.2005. Hence, application filed under

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Order VI Rule 17 of CPC would not be of any help to the

plaintiffs. As such, the same deserves to be dismissed.

28. The third application filed by the appellants is to

produce two documents, one is the judgment in LAC

No.188/1985, wherein, a portion of Sy.No.251/1 came to

be acquired by the Government and compensation was

awarded to the family of the defendants. The second

document is the Survey Tippan of Sy.No.255. Evidently,

the reason for not producing these documents during the

trial is insufficient. The affidavit filed in support of the

application states that she could not secure the documents

during the trial and she had no opportunity to place the

same before the trial Court. It is evident that even though

the application is allowed, the documents are not of much

relevance in the case. The crux of the plaintiffs' case is

that the suit schedule property is within Sy.No.255. When

such fact is disputed by the defendant, it was incumbent

upon the plaintiffs to establish that the suit schedule

property is within Sy.No.255 and such evidence is not

available before the Court. The documents proposed to be

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produced do not throw any light on this aspect. Therefore,

when none of the grounds permissible under Rule 27 of

Order XLI of CPC are made out, the application is bereft of

any merits. As such, it also deserves to be dismissed. For

aforesaid reasons, the point No.3 is answered in the

negative. Hence, the following:

ORDER

(i) The appeal is dismissed.

(iii) Misc.Cvl.6451/2010 filed under Section 144 of

CPC; IA No.2/2007 filed under order 41 Rule 27 CPC and

IA No.1/2023 filed under order 6 Rule 17 CPC are also

dismissed