Karnataka High Court
Smt A Vishalakshi vs Smt Y P Komala on 12 November, 2024
Author: K.Natarajan
Bench: K.Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
REGULAR FIRST APPEAL NO.426 OF 2014
BETWEEN:
SMT. A. VISHALAKSHI
S/O LATE AMBLI KOTRAPPA,
SINCE DECEASED BY LR.,
SRI. AMBLI YOGESH
S/O LATE AMBLI KOTRAPPA,
AGED ABOUT 56 YEARS,
NO.106, KOTTUR ROAD,
HARRAPPANAHALLI,
DAVANAGERE DISTRICT,
REPRESENTED BY GENERAL POWER
OF ATTORNEY HOLDER,
SRI. B.M. KARUNESH.
...APPELLANT
(BY SRI. S. SRIVATSA, SENIOR COUNSEL FOR
SRI. VISHWANATH R. HEGDE, ADVOCATE)
AND:
1. SMT. Y. P. KOMALA
W/O SRI.G.MURALIDHARA,
AGED ABOUT 50 YEARS,
RESIDING AT NO.143/12,
9TH MAIN, 14TH CROSS,
WILSON GARDEN,
BANGALORE - 560 030.
2
2. SRI. K. SUCHEENDRA REDDY
S/O N. KRISHNA REDDY,
AGED ABOUT 51 YEARS,
3. SMT. P.N MANJULA
W/O SRI.K.SUCHEENDRA REDDY,
AGED ABOUT 41 YEARS,
4. KUMARI. ASHWINI
D/O SRI. K. SUCHEENDRA REDDY,
AGED ABOUT 19 YEARS,
5. MASTER. MANOJ
S/O SRI. K. SUCHEENDRA REDDY,
AGED ABOUT 16 YEARS,
RESPONDENT NO.5 IS MINOR
REPRESENTED BY HIS MOTHER
AND GUARDIAN
SMT.P.N.MANJULA,
THE RESPONDENT NO.3.
RESPONDENTS NO.2 TO 5 ARE
RESIDING AT NO.3, GROUND FLOOR,
20TH CROSS, KANAKANAGAR,
R.T.NAGAR POST,
BANGALORE - 560 032.
6. SRI.M.KRISHNA REDDY
S/O G.MUNISHAMI REDDY,
AGED ABOUT 58 YEARS,
RESIDING AT DODDAKANNELI VILLAGE,
VARTHUR HOBLI,
BANGALORE SOUTH TALUK,
BANGALORE - 560 035.
3
7. SRI. K. L. KRISHNA REDDY
S/O LATE. PATEL LAKSHMIA,
RESIDING AT DODDAKANNELI VILLAGE,
VARTHUR HOBLI,
BANGALORE SOUTH TALUK,
BANGALORE - 560 035.
(VIDE ORDER DATED 5/8/16 R7 DELETED)
...RESPONDENTS
(BY SRI. R. B. SADASIVAPPA, AND
SRI. A. N. GIRIJESHA, ADVOCATES FOR C/R1;
VIDE ORDER DATED: 25/06/2019, APPEAL AGINST R2
TO R4 DISMISSED;
R6 SERVED, BUT UNREPRESENTED, VIDE ORDER
DATED: 05/08/16, R7 IS DELETED)
THIS REGULAR FIRST APPEAL IS FILED U/SEC.96 OF
CPC, AGAINST THE JUDGMENT AND DECREE DATED
22.11.2013 PASSED IN O.S.4021/2005 ON THE FILE OF THE
XXIV-ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE
CITY, DECREEING THE SUIT FOR DECLARATION AND
INJUNCTION.
THIS REGULAR FIRST APPEAL HAVING BEEN HEARD
AND RESERVED FOR JUDGMENT ON 16.10.2024 THIS DAY,
THE COURT PRONOUNCED THE FOLLOWING:
4
CORAM: HON'BLE MR JUSTICE K.NATARAJAN
RESERVED FOR ORDERS ON: 16.10.2024
PRONOUNCED ON : 12.11.2024
CAV JUDGMENT
This appeal filed by the appellant /defendant No.7
Under Section 96 of CPC., for setting aside the
judgment and decree passed by the XXIV Addl. City
Civil and Session Judge, Bangalore, herein referred as
trial court in OS.No.4021/2005 dated 22.11.2013 for
having decreed the suit of the plaintiff/ respondent.
2. Heard the arguments of learned senior
counsel appearing for appellant and counsel for the
respondents.
3. The ranks of the parties before the trial
court retained for the convenience.
4. The case of the plaintiff before the trial court
is that the plaintiff filed the suit for declaration to
declare that the plaintiff is the absolute owner and in
possession of the property bearing Sy.No.85 of
Bhoganahally village, Varthur Hobli, Bangalore South
taluk, measuring 4 acres 25 guntas, hereinafter
referred as civil property. The said property was
acquired by the 1st defendant under the partition took
place in OS.No.5093/1989 and all the documents were
made in the name of the 1st defendant. It is further
contended that the 1st defendant sold the schedule
property to one Smt.R.Pillaguramma @ Guramma
through his power of attorney holder K.L. Krishna
Reddy - the 6th defendant on 25.08.1995. Later the
name of the Pillaguramma was entered into revenue
records. And it is further alleged that the said
Pillaguramma gifted the schedule property to the
plaintiff on 29.01.2004, and put her in physical
possession. Later the revenue records were also
entered in the name of the plaintiff as per
T.R.No.2475/2003-04 dated 25.04.2004 and MR.No.
78/2003-2004, then the plaintiff become the absolute
owner of the schedule property and she was enjoying
the same.
5. The plaintiff further averred that on
23.12.2004, the plaintiff came to know that the 1st
defendant announcing to some people that he is owner
of the property. Hence, plaintiff has filed the suit
against the defendant in O.S.No.410/2005 against the
1st defendant for permanent injunction. The 1st
defendant appeared and filed written statement and
stated that he has sold the schedule property to the 7th
defendant as per the sale deed dated 22.12.2004. The
defendant Nos.1 to 4 have lost their right, title and
interest and possession over the schedule property on
25.08.1995 itself, when he has sold the land to
Pillaguramma, which is also binding on the defendant
Nos. 2 to 4 and they could not have sold the schedule
property to the 7th defendant. The 5th defendant has
also joined the sale deed dated 22.12.2004 as
confirming party.
6. The plaintiff further stated that the plaintiff
acquired the property through sale deed and gift deed.
The right of the plaintiff is subsisting and valid. The 7th
defendant do not acquired any title or interest over the
schedule property and 5th defendant ought not have
signed as confirming party. The plaintiff has also got
issued legal notice on 23.04.2005 to the 7th defendant,
where he has asserted the title, therefore plaintiff is
entitled to be declared as absolute owner of the
schedule property. The defendant may interfere with
the peaceful possession and enjoyment of the schedule
property. Hence, prayed for decree.
common written statement by denying the plaint
averments by admitting the fact the 1st defendant
acquired the schedule property under the partition in
OS.No.5093/1989, and there was family partition
pursuant to the compromise decree, the 6th defendant
obtained signature of the 1st defendant on some blank
papers under the guise of compromise and the 6th
defendant has misused the signature by creating GPA
and some more documents and on the basis of the
created documents the plaintiff claims the property.
There is no power of attorney executed by the 1st
defendant to the 6th defendant. And further contended
that the entries in the revenue records in the name of
the mother of the plaintiff was challenged before the
Assistant Commissioner, Bangalore, which was allowed
on 04.12.2004 and name of the 1st defendant was
entered in the revenue records.
8. The defendant further contended that para -
10 of the plaint averment that filing the suit by the
plaintiff in OS.No.410/2005 for permanent injunction
and the defendant has filed written statement may be
true but 5th defendant is not necessary party and suit is
liable to be dismissed for misjoinder of parties. The
plaintiffs have failed to get any order in OS.No.
410/2005 has filed this suit.
9. The defendant Nos.1 to 5 and 7 have
contended that the 7th defendant is a bonafide
purchaser of the schedule property. The suit is not
properly valued, court fee paid is insufficient, the suit is
not maintainable, the plaintiff having withdrawn the suit
in OS.No.410/2005 unconditionally cannot maintain the
present suit. Therefore, prayed for dismissing the suit.
10. The 3rd defendant also filed additional
written statement contending that schedule property
was originally belongs to great grand father of the 3rd
defendant by name Yajaman Nythappa Reddy, after the
death suit was filed in OS.No.5093/1989, and property
was allotted to the 1st defendant. The schedule property
is ancestral property. The 3rd defendant being
coparcener having right over the schedule property.
The 1st defendant is not having any independent right
to execute the sale deed or any other documents.
Therefore any document executed by the 1st defendant
is not binding on the 3rd defendant. It is further denied
that the said property was sold for family legal
necessities. The defendant No.3 having share in the
undivided family. Hence, entitle for the share and
prayed for dismiss of the suit.
11. The 6th defendant also appeared through
counsel and filed written statement admitting that the
suit claim of the plaintiff and contended that the suit
schedule property was belongs to the 1st defendant and
he has executed GPA in favour of the 6th defendant and
by virtue of GPA he has sold the property to the
Pillaguramma on 05.03.1997, and delivered the
physical possession and she also got mutated her name
in the revenue records. It is further contended that the
1st defendant executed GPA in favour of the 6th
defendant to deal with the schedule property,
accordingly he has sold the suit property to
Pillaguramma on 29.01.2004. The plaintiff obtained the
property through gift deed executed by the
Pillaguramma and she is in possession of the schedule
property.
12. The 1st defendant has no legal right for
executing the sale deed in favour of the 7th defendant
in December 2004. When the 1st defendant sold the
property in 1995 itself, he has no authority to sell the
property to the 7th defendant. Therefore it is stated he
has no objection for decreeing the suit.
13. Based upon the pleading the trial court
framed 6 issues as under;
1) Did plaintiff acquire title over suit
schedule property under registered Gift Deed
dated 29.01.2004 executed by
R.Pillaguramma @ Guramma?
2) Had said Guramma purchased suit
schedule property from 1st defendant under
registered sale deed dated 25.08.1995?
3) Did 1st defendant have any title over suit
schedule property subsequent to execution
of sale deed dated 25.08.1995? If not, did 7th
defendant derive title over suit schedule
property under sale deed dated 22.12.2004
executed by 1st defendant?
4) Was plaintiff in lawful possession of suit
schedule property on the date of suit?
5) Is the alleged interference true?
6) What decree or order?
14. In order to prove the case the plaintiff
herself examined as P.W.1 and got marked 23
document as Ex.P.1 to 23 and plaintiff got examined 2
more witnesses as P.W.2 and 3 and the 6th defendant
examined as DW.1, through Court Commissioner and
Ex.P.1(a) and Ex.P.2(a) were marked.
15. The first defendant examined as DW.2, and
the power of attorney holder of the 7th defendant
examined as DW.3 and got marked Ex.D.1. After
hearing the argument trial court decreed the suit of the
plaintiff. Being aggrieved by the same 7th defendant is
before this court.
16. The senior counsel for the appellant
contended that the judgment and decree passed by the
trial court is erroneous on the ground that previously
the plaintiff has filed the suit in OS.No.410/2005, where
the defendant was filed written statement and later the
plaintiff has withdrawn the suit without seeking liberty
to file fresh suit. Therefore, the suit is hit by Order II
Rule 2 of CPC., And further contended that the plaintiff
claimed the right over the property through her mother
Pillaguramma but the Pillaguramma was not party to
the suit. Therefore suit is not maintainable for non-
joinder of necessary parties. In another contention
taken by the senior counsel for the appellant is that the
plaintiff's mother Pillaguramma said to be purchased
the property and relied upon the Ex.P.14 and 15 are
the agreement of sale but as there is no delivery of
possession of the property. Therefore she was not
delivered the possession under the sale deed. The trial
court without considering the same decreed the suit.
Hence prayed for allowing the appeal.
17 The learned counsel for the appellant relied
upon the judgment of Hon'ble Supreme Court of
India reported in (2005) 6 SCC 733 in the case of
Kasturi Vs Iyyamperumal and Others and also
another case reported in 2022 SCC Online SC 1128 in
the case of Life Insurance Corporation of India Vs
Sanjeev Builders Private Limited And Another.
The learned counsel for the appellant also relied of
the judgment of Madras High Court reported in 2000
- 3 - L.W.793 in the case of S.Madasamy Thevar Vs
A.M.Arjuna Raja.
18. Per contra the learned counsel appearing for
the respondent has supported the judgment and decree
passed by the trial court and contended that the suit
filed by the plaintiff in OS.No.410/2005 was for bare
injunction, where the defendant claimed the suit
schedule property under the sale deed, therefore the
said suit withdrawn and filed fresh comprehensive suit
for declaration and injunction. Therefore principles of
Order II Rule 2 of CPC., will not attracted. He further
contended that there is no dispute in respect of
schedule property between the plaintiff and her mother
Pillaguramma, therefore her mother is not necessary
party in the suit. And further contended, under the sale
deed the delivery of the possession made, there is
reference available. The GPA holder of the 1st defendant
sold the property much prior to the sale deed of the
defendant and later the same was gifted to the plaintiff.
Therefore the plaintiff is in possession and enjoyment
of the suit schedule property. The defendant except
filing of written statement but not made any counter
claim in the suit. The trial court after considering the
evidence on record rightly decreed the suit. Hence
prayed for dismissing the appeal.
19. The learned counsel for the respondents
relied upon the judgment of Hon'ble Supreme Court
of India reported in (2017) 7 SCC 769 in the case
of Bapusaheb Chimasaheb Naik-Nimbalkar (dead
through legal representatives) and another Vs
Mahesh Vijaysinha Rajebhosale and others.
20. Having heard the arguments and perused
the records, the points that arises for my consideration;
1) Whether plaintiff proves that she is
absolute owner and possession of the schedule
property, having obtained gift from
Pillaguramma?
2) Whether the Pillaguramma is the proper
and necessary party to the suit?
3) Whether the 7th defendant derive any
title under the sale deed executed by the 1st
defendant on 22.12.2004?
4) Whether the suit filed by the plaintiff is
barred under order II Rule 2 of CPC., in view
of the earlier suit filed by the plaintiff in
OS.No. 410/2005?
5) Whether the Judgment and decree
passed by the trial court called for
interference?
6) What order?
21. Point Nos.1 to 3: The case of the plaintiff
is that the plaintiff is in possession and enjoyment of
the suit schedule property having derived the title by
way of gift deed from her mother Pillaguramma under
Ex.P.1. She has given evidence in this behalf. And the
said Pillaguramma agreed to purchase the property
from 1st defendant under Ex.P.14 and 15 and later the
1st defendant executed GPA in favour of the 6th
defendant and 6th defendant sold the property to the
plaintiff on the basis of the Ex.P.2 GPA as per sale deed
Ex.P.1. The learned senior counsel for the appellant has
contended that though sale deed is executed but
delivery of the possession has not transferred to the
Pillaguramma. Therefore, the sale deed itself is not
binding on the defendants in view of cancelling the GPA
executed in favour of the 6th defendant and the 1st
defendant. In this regard, on perusal of the records, it
is an admitted fact that the 1st defendant who was the
owner of the suit schedule property, has acquired the
land by way of partition in O.S.No.5093/1989 and it is
seen from the records, especially Ex.P.14 and P.15 that
defendant No.1 executed an agreement of sale in
favour of Pillaguramma, who is mother of the plaintiff,
on 13.07.1991 and 8.11.1993. The recitals of Ex.P.14
discloses that the schedule property was delivered to
Pillaguramma and there is reference available regarding
Ex.P.14 in the subsequent agreement at Ex.P.15. The
very defendant No.1 entered in to an agreement of sale
with Pillaguramma and received Rs.60,000/- under
Ex.P.15. Subsequently, he has executed a General
Power of Attorney in the name of the 6th defendant for
the purpose of executing the sale deed in favour of the
plaintiff's mother Pillaguramma on 17.10.1994. Ex.P.2
clearly reveals that the amount was received by the 1st
defendant under the agreement of sale and by
receiving the amount Rs.40,000/- on 13.07.1991 and
Rs.1,60,000/- on 08.11.1993 and Rs.51,150/- by cash
on 17.10.1994 and Ex.P.2 is especially executed by the
1st defendant in favour of the 6th defendant for
executing the sale deed. Ex.P.2 is not like any other
general power of attorney for doing all the things in
favour of the owner, but this GPA is executed especially
for presenting the sale deed and executing the sale
before the Sub-Registrar in favour of Pillaguramma.
The 1st defendant has categorically stated that he has
already delivered possession to Pillaguramma and he
has approved selling of the property. Subsequent to
the execution of Ex.P.2, the 6th defendant executed the
sale deed as per Ex.P.1 in favour of Pillaguramma and
he has performed his part of contract which was
assigned by the 1st defendant to the 6th defendant by
executing the sale deed on 25.08.1995. Subsequently,
Pillaguramma got mutated her name in the revenue
records and her name was entered in the RTC, until set
aside by the Assistant Commissioner by changing the
same in the name of 7th defendant. It is also worth to
mention that the order of the Assistant Commissioner
has been set aside by the Deputy Commissioner under
Ex.P.21. The evidence of P.W.1 and the documents
especially Exs.P.14, P.15 and Ex.P.2 and Ex.P.1 which
reveals that Pillaguramma has purchased the schedule
property from the 1st defendant, through his GPA holder
6th defendant. The 6th defendant was also examined as
D.W.1 and he has spoken about the execution of the
sale deed. In the cross examination, nothing has been
elicited to disbelieve his evidence. That apart, the GPA
dated 17.10.1994 was executed as per Ex.P.2 for
execution of sale deed in favour of Pillaguramma.
Accordingly, the sale deed was executed on 25.8.1995.
Once the power exercised by the power of attorney
holder by executing the sale deed under Ex.P.2, the act
of the Principal has been executed by the 6th defendant.
Therefore, the cancellation of GPA by the 1st defendant
and based upon the cancellation, executing the sale
deed by the 1st defendant in favour of the 7th
defendant, the appellant herein, has no consequence,
when the 1st defendant already sold the property and
delivered the possession of the schedule property to
Pillaguramma, he has not retained any property to sell
the same to the 7th defendant. When the 1st defendant
does not have any right title over the schedule
property, which was already sold to Pillaguramma, the
question of executing the sale deed in favour of the 7th
defendant under sale deed dated 22.12.2004, does not
arise & the 7th defendant/appellant does not derive any
right, title or interest over the property. That apart,
when the GPA was already executed it cannot be
terminated as per Sections 202 and 203 of Indian
Contract Act. The evidence of D.W.1-defendant No.6
corroborates with the evidence of P.W.1 regarding the
execution of sale deed in favour of the plaintiff's
mother. Subsequently, the mother of the plaintiff
executed the gift deed in favour of the plaintiff prior to
the execution of the sale deed in favour of the 7th
defendant on 29.01.2004. Whereas, the 7th defendant
said to the purchased the same property on 22.12.2004
as per Ex.P.11 which is subsequent to the sale deed
executed in favour of the plaintiff's mother. Ex.P.4 gift
deed dated 29.01.2004 is also much prior to the sale
deed of the 7th defendant. Therefore, prior to the
execution of sale deed in favour of the mother of the
plaintiff and gift in favour of the plaintiff, the 1st
defendant lost right over the property and he does not
have any title once again to sell the same to the 7th
defendant. Therefore, the sale deed executed by the
1st defendant in favour of the 7th defendant is not a
valid sale deed. It is also argued by the learned
respondent counsel that the 2nd defendant filed suit
against 1st defendant and others including 7th defendant
for partition and separate possession of the suit
schedule property in OS.No.7926/2012, in the said suit
the Pillaguramma also party. The plaintiff Komala also
party and the said suit was dismissed by the trial court
on 21.01.2022 and the same is not in dispute. On
perusal of the said judgment the defendant Nos. 2 and
3 are the children of 1st defendant challenging the sale
deeds of the plaintiff, as it is not binding on them and
sought for partition in the said suit schedule property
which came to be dismissed. Therefore on all the
grounds the plaintiff made out the case that suit
schedule property was acquired by her mother and
same was gifted to her in January 2004 itself much
prior to the execution of sale deed of defendant 7,
therefore defendant 7 will not acquired any right title or
interest over the schedule property. The learned senior
counsel for the appellant contended there is no delivery
of the possession of the suit schedule property. Though
there is no reference of Ex.P.14 and Ex.P.15 in the
agreement of sales about handing over the possession
but in the sale deed Ex.P.1 executed by the 1st
defendant through 6th defendant and in Ex.P.2 it was
mentioned that the possession is already delivered to
the plaintiff's mother Pillaguramma. It is well settled for
the vacant land the possession moves along with the
title. Therefore even if the possession was not delivered
at the time of agreement of sale but in the interregnum
period the 1st defendant has stated he has delivered the
possession, it was referred in the Ex.P.1, the
possession was delivered to the plaintiff's mother
Pillaguramma. Therefore contention of the learned
senior counsel not acceptable, that the possession of
the suit schedule property not delivered. Therefore I
hold that the plaintiff's mother was in possession and
enjoyment of the property, thereafter it was gifted to
the plaintiff. Thereby the plaintiff proves she is in
possession and enjoyment of the suit schedule
property.
22. The another contention of the learned senior
counsel of the appellant is that the suit is not
maintainable without the Pillaguramma as party in the
suit. It is contended that the plaintiff claims suit
schedule property through Pillaguramma therefore she
is necessary and proper party to the suit, therefore
without Pillaguramma the suit is bad for non-joinder of
necessary parties. The counsel for the respondent has
contended that the Pillaguramma is none other than the
mother of the plaintiff, there is no dispute between the
plaintiff and Pillaguramma and the Pillaguramma not
disputed the title of the plaintiff and she herself gifted
the property to the plaintiff, therefore she may not be
the necessary party to the suit. On perusal of the
records the claim of the plaintiff is that, she has
acquired the property through gift deed executed by
her mother Pillaguramma on 29.01.2004. It is further
contended that the 1st defendant agreed to sell the
property to the Pillaguramma and executed two
agreements of sale as per Ex.P.14 and 15 and the very
same 1st defendant executed the GPA in favour of the
6th defendant to execute the sale deed in favour of the
Pillaguramma. The Ex.P.2 GPA dated 17.10.1994 based
upon the GPA the 6th defendant executed the sale deed
in favour of the Pillaguramma on 25.08.1995 itself. And
subsequently the said Pillaguramma gifted the suit
schedule property to the plaintiff on 29.01.2004. There
is no dispute between the Pillaguramma and plaintiff
who are the mother and daughter and the
Pillaguramma not disputing the title of the plaintiff.
Therefore, the question of impleading the Pillaguramma
as party to the suit does not arises and without the
Pillaguramma the court decide the issues between the
parties. Therefore she is not necessary and proper
party to the suit. Therefore, the suit is not bad for non-
joinder of necessary party. Therefore contention of the
learned senior counsel for the appellant cannot be
acceptable that the suit is bad for non-joinder of
necessary party. Hence answered the point Nos. 1 to 3
against the appellant/ defendant and in favour of the
plaintiff.
23. Point No.4: The senior counsel for the
appellant vehementally contended that the suit is
barred under Order II Rule 2 of CPC., in view of the
earlier suit filed in OS.No.410/2005 and withdrawn by
the plaintiff, therefore subsequent suit is not
maintainable. In this regard the learned senior counsel
relied upon the judgment of the Hon'ble Apex Court,
reported in 2022 SCC Online SC 1128 in the case of LIC
of India Vs Sanjeev Builders Private Limited and
another., at para 51 of the judgment as under;
51. In the aforesaid context, we may refer
to with approval a decision rendered by the
High Court of Delhi in the case of Vaish
Cooperative Adarsh Bank Ltd. v. Geetanjali
Despande, (2003) 102 DLT 570. Paras 17 and
18 resply indicate that the bar under Order II
Rule 2 of the CPC is only for a subsequent suit.
These paras read as under:
"17. Reverting to the preliminary
objections raised by the appellant against the
maintainability of the application for
amendment, one would come across with a
peculiar plea of proposed amendment being
barred under Order II Rule 2 CPC. General rule
enacted under Order II Rule 2.(1) CPC is that
every suit must include the whole of the claim
which the plaintiff is entitled to make in respect
of the cause, of action. Order II Rule 2.(2)
precludes a subsequent suit on any part of
claim, which had been omitted or intentionally
relinquished by the plaintiff in an earlier suit
based on the same cause of action. Similarly,
where the plaintiff is entitled to more than one
relief in respect of the same cause of action but
omits, except with the leave of the court, to sue
for all such reliefs, he is debarred in view of the
order II Rule 2(3) CPC from suing afterwards
for any relief so omitted.
18. A plea of bar under Order II Rule 2
CPC is maintainable only if the defendant makes
out (i) that the cause of action of the second
suit is the same on which the previous suit was
based, (ii) that in respect of that cause of
action, the plaintiff was entitled to more than
one relief and (iii) that the plaintiff without
leave obtained from the Court omitted to sue
earlier for the relief for which the second suit is
filed. (see "Gurbux Singh v. Bhooralal", AIR
1964 SC 1810). Clearly, Order II Rule 2 CPC
enacts a rule barring a second suit in the
situation indicated above. Identity of cause of
action in the former and subsequent suits is
essential before the bar contemplated under
Order II Rule 2 CPC is set to operate. Thus,
where the claim or reliefs in the second suit are
based on a distinct cause of action, Order II
Rule 2 CPC would have no application. Order II
Rule 2 CPC operates as a bar against a
subsequent suit if the requisite conditions for
application thereof are satisfied and the field of
amendment of pleadings falls far beyond its
purview. The plea of amendment being barred
under Order II Rule 2 CPC is, thus,
misconceived and hence negatived."
24. The learned counsel for the respondent also
relied upon the judgment of the Hon'ble Apex Court,
reported in (2017) 7 SCC 769 in the case of
Babusaheb, Chimasaheb Nayak- Nimbalkar (dead
through legal representative) and Another Vs
Mahesh Vijaysinha Rajebhosale and others. The
Hon'ble Apex Court held Order II rule 2 of CPC., does
not apply if cause of action of previous and subsequent
suits are different.
25. By keeping the principles laid down by the
Hon'ble Apex court in both cases and perused the case
on record, wherein it is admitted that the plaintiff has
filed suit in OS.No.410/2005 for bare injunction against
the 1st defendant alone. The 1st defendant appeared
and filed the written statement by taking contention
that the suit schedule property is already sold to 7th
defendant vide sale deed dated 22.12.2004. It is also
admitted fact subsequently plaintiff withdrawn the said
suit and filed a fresh suit for declaration and injunction
which is comprehensive suit against defendant Nos.1 to
7 and the defendant No.6 who is the GPA holder of the
defendant No.1 and defendant Nos.5 is the confirming
party to the sale deed and defendant No.7 is the
subsequent purchaser. The plaintiff claims the suit
schedule property which is admittedly the 1st defendant
is the owner of the suit schedule property, who was
executed a GPA in favour of the 6th defendant and a
agreement of sale to Pillaguramma. Subsequently the
6th defendant sold the property to the Pillaguramma the
mother of the plaintiff on 25.08.1995. And thereafter
the Pillaguramma become the owner and she has
executed the gift deed in favour of the daughter i.e.,
the plaintiff on 29.01.2004. Therefore the plaintiff
cannot maintain the bare injunction suit against the 1st
defendant, as the 1st defendant subsequently said to be
sold the suit schedule property to the 7th defendant in
the year December 2004. Therefore the plaintiff is
having two options either to withdraw the suit for bare
injunction or to file suit for declaration and another
option is for seeking amendment to the plaint by
impleading the subsequent purchasers as additional
defendant. Therefore plaintiff chosen to withdraw the
suit and filed a comprehensive suit for declaration and
injunction against all the defendants. The cause of
action in both the suits are different and cannot be one
and the same. The parties in both suits are also
different from defendant No.1. Merely there is no
liberty obtained by the plaintiff to file fresh suit that
itself cannot be said the present suit is barred under
Order II Rule 2 of CPC., therefore the present suit for
comprehensive suit for declaration and injunction
maintainable. Therefore arguments addressed by the
learned senior counsel cannot be acceptable that suit is
barred under Order II Rule 2 of CPC.
26. The trial court after considering the evidence
on record by appreciation of the documents rightly held
the plaintiff is the owner and enjoyment of the suit
schedule property and the defendant No.7 do not derive
any title over the suit schedule property. Therefore
rightly decreed the suit of the plaintiff. Therefore
judgment and decree passed by the trial court does not
call for interference by the suit. The appeal is devoid of
merit and liable to be dismissed.
27. Accordingly, I proceed to pass the following;
ORDER
The appeal is dismissed.
No order as to cost.
Sd/-
(K.NATARAJAN)
JUDGE
SRK & CS/-CT:SK
