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2014 DIGILAW 750 (KAR)

S. Ramaiah v. K. Ramesh Rao

2014-08-26

ANAND BYRAREDDY

body2014
Judgment : 1. The facts leading up to these petitions are as follows: 2. The petitioners are said to be owners of lands measuring 7 acre and 10 guntas in lands bearing Survey Nos.1/2, 1/3, 1/4, 1/5 and 1/7 of Nagarbhavi village, Yeshwanthpur hobli, Bangalore North Taluk. The petitioners are said to have executed three agreements of sale, dated 19.11.1981, 21.12.1981 and 25.3.1982, respectively, in respect of the said lands in favour of one, Kendriya Upadhyara Sangha. It is stated that the said agreements were executed with identical stipulations as regards the proposal of the above said Sangha, approaching the State with a proposed housing scheme to be implemented in the above lands and had accordingly paid certain advance amounts to the petitioners, with the condition that if the State did not choose to acquire the land for the benefit of the Sangha, the amounts would be refunded. However, the petitioners are said to have terminated the agreements as on 20.5.2007. As the Sangha is said to have been put in permissive possession of the lands, failed to redeliver possession on the termination of contract, the petitioners are said to have filed a civil suit in O.S.No.5507/2010, on the file of the Court of the City Civil City Judge, Bangalore. Apart from the Sangha, a large number of persons, to whom the Sangha is said to have issued allotment letters in respect of residential sites, said to have been formed on the land, have been arraigned as defendants. The present writ petitions are filed only. as against the two respondents, who are also defendants in the suit, as the petitioners are aggrieved by orders passed by the trial court on two applications filed by these respondents and a related application filed by the petitioners. The present writ petitions are filed only. as against the two respondents, who are also defendants in the suit, as the petitioners are aggrieved by orders passed by the trial court on two applications filed by these respondents and a related application filed by the petitioners. The respondents are said to have filed an application under Order VII Rule U(a)(b) & (d), read with Section 151 of the Code of Civil Procedure, 1908, (Hereinafter referred to as the 'CPC' for brevity) seeking that the plaint be rejected; They had also filed another application under Order XXVI Rule 9 CPC, read with Section 18 of the Karnataka Court Fees and Suits Valuation Act, 1959 (Hereinafter referred to as the 'KCFSV Act', for brevity) seeking the appointment of the Sub-Registrar, Nagarbhavi, as a court commissioner to inspect the suit property and furnish a report on the valuation thereof for purposes of determining the actual Court fee to be paid. The petitioners, in turn, are said to have filed an application for amendment of the relevant provision, as stated in the plaint, for purposes of valuation and jurisdiction. All the above applications having been contested, the trial court is said to have allowed the application for the appointment of Court commissioner and had also allowed in part, the application seeking rejection of the plaint, filed by the respondents and had rejected the application filed by the petitioners seeking amendment. The petitioners being aggrieved have filed these petitions against the common order passed by the trial court. 3. The learned counsel Shri P.D.Surana, appearing for the petitioners contends that the petitioners are aggrieved by the determination of the court fee sought to be made on the market value of the suit properties. Whereas the court fee would be payable on the consideration received under the agreements of sale. It is elaborated that the agreements envisaged that the lands in question would be acquired by the State, at the instance of the Sangha, for the benefit of the Sangha and its members to facilitate a housing scheme envisaged by the Sangha, hence without this first step being ushered in, the permissive possession delivered under the agreements of sale, did not confer any right or authority to deal with land or put any third-parties in possession of the same. With the termination of that agreements, the notional and permissive possession in favour of the Sangha as a licencee and the prayer for redelivery of possession is sought as a matter of form and is not made as would be contemplated in a suit seeking to establish a disputed title and consequent recovery of actual physical possession. The court below has failed to distinguish between the circumstance of an undisputed owner seeking formal redelivery of notional possession from a licencee of vacant land and that of a plaintiff seeking to establish his disputed title and seeking to recover actual physical possession from a defendant. It is contended that the provision of law, under which the suit was valued was incorrectly stated and was sought to be corrected by recourse to the amendment application,, which has been unfairly rejected thereby seeking to pin the petitioners to a position which is divorced from the actual position. It is emphasized that the suit is not framed with regard to any relief requiring adjudication of possessory rights or title. The permissive possession under the agreements stands determined by a notice of termination dated 20.5.2007. The notional possession of the Sangha is reduced to that of a licensee and is in the nature of an easement. The learned counsel has relied on the following authorities in support of his contentions : 1. b. Krishnappa vs. Chandrika .G, ILR 2006 KAR 4704 2. Mohanlal vs. Mirza Abdul Gaffar, AIR 1996 SC 910 3. Suhrid Singh vs. Randhir Singh AIR, 2010 SC 2807 4. Suraj Lamp & Industries (P) Ltd. vs. State of Haryana, AIR 2009 SC 3077 5. Suraj Lamp & Industries (P) Ltd. vs. State of Haryana, AIR 2012 SC 206 6. State of Karnataka vs. Shankara Textiles Mills Ltd., 1995 (1) SCC 295 4. The learned counsel appearing for the respondents, on the other hand, seeks to justify the impugned order. 5. In so far as the question whether the trial court was justified in rejecting the application seeking amendment of the plaint, lo the effect that instead of stating that the suit for purposes of court fees is valued under Section 29, it should be read as being under Section 30, is concerned, the trial court has rejected the same on the ground the amendment would be untenable and that a wrong provision of law is sought to be invoked. The trial court has not elaborated on its reasoning. The apparently instinctive opinion of the trial court is however, on a firm foundation. For it is fallacious to proceed on the basis that the suit is one for an easement in seeking such an amendment. To explain the incorrect premise on which the petitioners proceed, the following contention in a ground raised in the writ petitions is revealing. It is contended thus: " The possession of the said Sangha (is) that of a licensee under the petitioners i.e. , a Easement granted by the petitioners. The easement/permission has come to an end and therefore the suit is filed for redelivery of the suit property" It is evident that the petitioners seek to treat the concept of an easement and a licence as being synonymous. They are not. An "easement" is defined under Section 4 of the Indian Easements Act, 1882, thus : "4. "Easement" defined - An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own. Dominant and servient heritages and owners.-The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof the dominant owner; the land on which the liability is imposed is called the servient heritage, and the owner or occupier thereof the servient owner. Explanation.- In the first and second clauses of this section, the expression "land" includes also things permanently attached to the earth; the expression "beneficial enjoyment" includes also possible convenience, remote advantage and even a mere amenity; and the expression "to do something" includes removal and appropriation by the dominant owner, for the beneficial enjoyment of the dominant heritage, of any part of the soil of the servient heritage, or anything growing or subsisting thereon." A "licence" is defined under Chapter VI, Section 52 of the Indian Easements Act, 1882, thus : "52. "Licence" defined. "Licence" defined. - Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license." The distinction between an easement and a licence is stated thus in Halsbury's Laws of England 4th Edition Vol. 14 para 36 thus : "The chief distinction between an easement and a licence to use land in a particular manner is that whereas an easement cannot be extinguished merely at the will of (he grantor except in certain specified modes, a licence is generally revocable at the will of the person who has given ,it. Moreover, a licence is merely personal, and does not ran with the land; and a deed is generally necessary to grant an easement, but unnecessary to give a licence." Further, it is held by the Privy Council thus:- " Thus, a right in easement is a right in rem whereas a right in licence is a right in personam. An easement is assignable with the dominant tenement, but a licence cannot generally be assigned. An easement may be positive or negative in character, but a licence is always positive in character. "(See: Gujarat Ginning and Mfg.Co.Ltd. v. Motilal Hirabhai Spinning and Mfg. Co. Ltd., AIR 1936 PC 77) Therefore it is not possible to accept the contention that the suit is one relating to an easement. Secondly, the provisions of the KCFSV Act which deal with possession of immovable property are: Section 24(a) & (d) - Suits for declaration Section 27- Suits relating to trust property Section 28- Suits for possession under the Specific Relief Act, 1963 Section 32- Suits relating to mortgages Section 34- Suits for dissolution of partnerships Section 35 - Partition suits Section 36 -- Suits for joint possession Section 37 - Administration suits Section 40 - Suits for Specific Performance Section 41 (l)(d) & 41(2) - Suits between landlord and tenant Section 42 - Suits for mesne profits. It follows that if a suit for possession does not fall under any of the above Sections, court fee is liable to be paid m accordance with Section 29 alone. It follows that if a suit for possession does not fall under any of the above Sections, court fee is liable to be paid m accordance with Section 29 alone. The suit is certainly one for recovery of possession of immovable property- it does not matter whether the agreement holder is to be characterized as a licences. Hence it should be valued under Section 29 of the KCFSV Act. The order of the trial court refusing the amendment is in order. In view of the mandate under Section 11(2) of the KCFSV Act, the trial court having appointed a court commissioner to inspect the property and to furnish a report in order to determine the value of the suit property for purposes of payment of court fee and also to decide on the application for rejection of the plaint, depending on the further developments, cannot also be faulted. The several authorities cited by Shri Surana are out of context and would not advance the case of the petitioners. The writ petitions therefore are without merit and are dismissed.