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2004 DIGILAW 259 (KAR)

A. Kannan (deceased) by L. Rs. v. Khatun Bee

2004-04-02

K.SREEDHAR RAO

body2004
JUDGMENT K. Sreedhar Rao, J.--These appeals arise out of the common judgment and decree passed in O.S. Nos. 10606 of 1987 and 10070 of 1987 on the file of the XXVIII Additional City Civil Judge, Bangalore. The Appellant is the Defendant in O.S. No. 10606 of 1987 and Plaintiff in O.S. No. 10070 of 1987. A counter suit is filed by the Defendants in O.S. No. 10070 of 1987. 2. The Appellant in these appeals, for convenient discussion would be referred to as the Plaintiff and Respondents are Defendants. The Plaintiff filed a suit in O.S. No. 10070 of 1987 seeking permanent injunction against the Defendants not to interfere with the peaceful possession and enjoyment of the site bearing Sy. No. 73 measuring 30' x 40' situated at Vijinapura @ Kothu, Krishnarajapura Hobli, Bangalore South Taluk, Bangalore. The Plaintiff claims to have purchased a site from the first Defendant under a registered sale deed dated 28.7.1975 at Ex.P.2 for a valuable consideration of Rs.2,000/-. The Plaintiff claims to be in possession of the suit property from the date of purchase. The suit O.S. No. 1058 of 1978 was filed earlier, later renumbered as O.S. No. 3418 of 1980 for permanent injunction against the 1st Defendant not to interfere with the peaceful possession and enjoyment of the suit of the property. The suit came to be dismissed as withdrawn. Again, the present suit is filed for similar relief. 3. The Defendants deny the execution of the sale deed, the Plaintiff's possession and have also filed a suit in O.S. No. 10606 of 1987 seeking mandatory injunction against the Plaintiff for demolition of the construction. It is the case of the Defendants that at the time when the Plaintiff filed the suit, the suit land was a vacant plot. The Defendants filed an application under Order 39, Rules 1 and 2 of Code of Civil Procedure restraining the Plaintiff from putting up construction. That application came to be disposed off. Taking advantage of the situation, the Plaintiff attempted to put up construction. Therefore, the Defendants filed a suit for permanent injunction against the Plaintiff not to put up any construction. Inter alia, an application was filed for appointment of the Commissioner to inspect the suit site and to report about the condition of the suit property. No interim orders were passed. The Plaintiff taking advantage of the situation, had put up construction. Therefore, the Defendants filed a suit for permanent injunction against the Plaintiff not to put up any construction. Inter alia, an application was filed for appointment of the Commissioner to inspect the suit site and to report about the condition of the suit property. No interim orders were passed. The Plaintiff taking advantage of the situation, had put up construction. The Defendants amended the relief of mandatory injunction for demolition of the construction. 4. During the pendency of the suit, the Plaintiff died. His legal representative is brought on record in both the suits. The trial Court rejected the case of the Plaintiff's title and possession and dismissed O.S. No. 10070 of 1987. As a corollary, allowed the suit of the Defendants in O.S. No. 10606 of 1987 directing demolition of the construction. Hence, these two appeals are filed against the common judgment and decree passed in both the suits. 5. The following points arise for consideration: 1. Whether right to sue survives for the L.R., of the Plaintiff to continue the suit, after the demise of the Plaintiff? 2. Whether the Plaintiff has proved possession and incidentally, the title to seek relief of permanent injunction? 3. Whether the Defendants prove that the construction is made during the pendency of the suit and whether the Defendants are entitled to relief of mandatory injunction? 4. Whether any equitable order in the case could be passed in view of the provisions of Section 51 of Transfer of Property Act? 6. The Universal operative effect of the maxim actio personalis moritur cum persona is greatly whittled down by the Provisions of Section 306 of Indian Succession Act, 1925, which is, for convenience, is extracted hereunder: Section 306: Demands and rights of action of, or against deceased survive to and against executor or administrator - All demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his decease, survive to and against his executors or administrators; except causes of action for defamation, assault, as defined in the IPC, or other personal injuries not causing the death of the party; and except also cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory. 7. 7. The provision contemplates the following three distinct situations relating to survival of right to sue for the executors and administrators. 1. In the case of defamation and assault, as defined in IPC the right to sue does not survive on the death of the party. 2. In case of the personal injuries not causing death of the party right to sue does not survive if the party dies for the reason other than for the tort in question. But, in case of death, as result of the tort, the Fatal Accident Act enables the dependants and the heirs to claim compensation for the wrongful death of a person on account of tortuous action of the Defendant. 3. Where the relief sought could not enjoyed or granting it would be nugatory. 8. In the present case, the third criteria becomes applicable. It is necessary to see in a case of suit for permanent injunction against the Defendant not to interfere with the peaceful possession and enjoyment of immovable property, granting of relief could be enjoyed by the L.Rs. successfully or would it become nugatory? The provisions should not be read only from the stand point of the Plaintiff but should be read from the stand point of Defendants also. In a suit for permanent injunction, if the fact of possession becomes contentious and incidentally, the question of title also becomes contentious and if both the parties set up rival claim of title, it cannot be said that the grant of relief cannot be enjoyed by the surviving L. Rs.or granting of relief would become nugatory. 9. The Supreme Court while interpreting the provisions of Section 306 in the case of M. Veerappa v. Evelyn Sequeira reported in 1988 (1) SCC 556 has held that though Section 306 speaks only of executors and administrators the legal representatives stand on a par with executors and administrators regarding their right to seek impleadment in order to continue the suit under Order 22, Rule 3 of Code of Civil Procedure. 10. The decision of the Allahabad High Court in Krishna Behari v. Raj Mangal Persad and Ors. reported in AIR 1954 Allahabad 182 in para-5, the following observations are made: Para 5: The suit was not of a personal nature at all. Sukhhu did not claim any personal right. 10. The decision of the Allahabad High Court in Krishna Behari v. Raj Mangal Persad and Ors. reported in AIR 1954 Allahabad 182 in para-5, the following observations are made: Para 5: The suit was not of a personal nature at all. Sukhhu did not claim any personal right. The injunction sought was that the applicant should not interfere with his possession over the property in dispute. A suit claiming injunction of this nature did not abate on the death of the Plaintiff. The cause of action survived to his legal representative who came in possession of the property in dispute. In - Josiam Thiruvengada v. Sami Iyengar', 5 Ind Cas 927 (Mad)(C), the injunction sought was to restrain the Defendant from interfering with the Plaintiff's right to stand at a particular place in a certain temple and that was held to be a personal action which died with the Plaintiff. The injunction sought in the present case was of a different nature. I am in respectful agreement with the views of his Lordship J. Desai. 11. This Court in D'Souza Vs. Joseph, ILR (1992) KAR 2972 has held that: Decree for injunction: An injunction obtained against a Defendant, upon his demise can be enforced against the son under Order 21, Rule 32, but not against the purchaser of the property from the Defendant. Obviously, for the reason that the injunction does not run with the land and transferee is not bound by the decree whereas the L. Rs.claim through the deceased, judgment debtor would be bound by the decree. 12. In the present case, both the Plaintiff and the Defendants have set up rival claim of title and possession and on demise of the Plaintiffs, the L.R., of the Plaintiff has come on record. Therefore, continuation of the proceedings by the L.R. of the Plaintiff cannot be said that she cannot enjoy the relief granted, or that granting of it would be nugatory. Therefore, I am of the view that on the death of the Plaintiff, the suit does not abate the right to sue for the L.R., to continue the proceedings. Question No. 1 is answered in affirmative. 13. The Plaintiff claims title and possession. The evidence produced is scanty. The Defendants deny the execution of the original sale deed. Ex.P-2 is the certified copy of the sale deed produced by the Plaintiff. 14. Question No. 1 is answered in affirmative. 13. The Plaintiff claims title and possession. The evidence produced is scanty. The Defendants deny the execution of the original sale deed. Ex.P-2 is the certified copy of the sale deed produced by the Plaintiff. 14. The Section 68 of the Evidence Act mandates that a document which requires registration and compulsory attestation - when the execution of the document is denied by the executor, the examination of attesting witnesses to prove the execution is compulsory. A transaction of sale under Section 59 of the Transfer or Property Act is not necessarily to be attested by the witnesses. In the present case execution of the sale deed is denied, the original sale deed is not produced, only certified copy of the sale deed in Ex.P-2 is produced. Although, not by the rule in Section 68, it is necessary for the Plaintiff to examine the attesting witnesses but as a rule of prudence to prove the factum of execution, the examination of the attesting witnesses is desirable as it is one of the safest modes to prove the execution. 15. In the present case, Ex.P.2 discloses that one Ansari identified the Executant as Khatoon Bee-1st Defendant. The 1st Defendant has furnished her specimen LTM but for want of the original sale deed, the comparison is not possible. The Plaintiff has failed to prove the execution of original of Ex.P-2 by a credible evidence. 16. The Plaintiff is not in possession as on the date of suit. It was a vacant plot and the structures have come up only during the pendency of the suit. The Plaintiff on assertion of rights as per Ex.P.2, has put up construction during the pendency of the suit. According to him in a bonafide way and he sets up title over the property. The Defendants filed Execution Petition No. 15104 of 1999 and have produced records to show that one Krishna Kumar is in possession of the building. An application under Order XXI, Rule 97 read with Section 151 Code of Civil Procedure was filed by Smt. Shantha Krishna Kumar W/o Krishna Kumar resisting the execution of the decree in O.S. No. 10606 of 1987, and claims to be in possession. The Execution petition No. 15104 of 1999 filed by the Defendants came to be closed in view of the stay order passed in this appeal. The Execution petition No. 15104 of 1999 filed by the Defendants came to be closed in view of the stay order passed in this appeal. The application filed under Order XXI, Rule 97 read with Section 151 Code of Civil Procedure also came to be closed. The facts remains that on the suit land a RCC house is constructed, the value of the construction is quite substantial. 17. The relief of mandatory injunction is a discretionary relief. The Court has got jurisdiction to grant alternative relief of compensation under the Provisions of Section 51 of Transfer of Property Act, which declares as follows: Section 51: Improvements made by bona fide holders under defective titles.-When the transferee of immovable property makes any improvement on the property, believing in good faith that he is absolutely entitled thereto, and he is subsequently evicted therefrom by any person having a better title the transferee has a right to require the person causing the eviction either to have the value of the improvement estimated and paid or secured to the transferee, or to sell his interest in the property to the transferee at the then market-value thereof, irrespective of the value of such improvement. The amount to be paid or secured in respect of such improvement shall be the estimated value thereof at the time of the eviction. 18. In the background of facts, directing demolition of construction and delivery of vacant possession would be a sadistic approach to the problem. The demolition not only damages the interests of the Defendants, but it affects the social interest also. In that view, I direct that the Defendants/Respondents are entitled to purchase the structure by giving the market value as on the date of execution. It is needless to say that necessary depreciation has to be given taking into consideration the date of construction while fixing the market value of the house. If the Plaintiff fails to exercise option, the Defendants should be given option to purchase the land at the market rate as on the date of execution. 19. Accordingly, the judgment and decree of the trial Court is set aside and the decree to be drawn as indicated above.