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2017 DIGILAW 717 (KAR)

S. MANJUNATH v. NAGARAJA

2017-04-06

K.S.MUDAGAL

body2017
JUDGMENT : K.S. Mudagal, J. This plaintiff's appeal arises out of the judgment and decree dated 17.2.2005 passed by XIV Additional City Civil Judge, Bangalore (CCH-28) in O.S.No.248/2001. By the impugned judgment, the trial Court has dismissed the suit of the plaintiff for declaration of his title over plaint 'B' schedule property and for possession. 2. The suit 'A- Schedule Property is a house bearing No. 9, situate at Sy.No.69/1 of Jar-aganahalli Village, Uttarahalli Hobli, Bangalore South Taluk. The suit 'B' schedule property is a portion of the structure measuring 10''x 20' in 'A- schedule property. The respondent is defendant before the trial Court. For the purpose of convenience, parties will be referred to hereafter with their ranks before the trial Court. 3. The case of the plaintiff in brief is as follows:- Suit 'A' schedule property originally belonged to plaintiff's elder brother, Sri. Nagarajaiah. He was a bachelor. He executed a registered Will dated 13.2.1992 bequeathing 'A- schedule property in favour of the plaintiff. He died on 13.9.1992. On his death, by virtue of the Will, the plaintiff has succeeded to the property as absolute owner thereof. The defendant was residing in suit 'B' schedule property as a tenant. The plaintiff filed an eviction petition against the defendant in H.R.C. No. 193/1996 before the Court of Small Causes, Bangalore, under Section 21(1)(A), (H) of the Karnataka Rent Control Act. In the said petition, defendant disputed the jural relationship. The Small Causes Court dismissed the said petition holding that no jural relationship of landlord and tenant exists between the parties. The defendant is in unauthorized occupation of suit 'B' schedule property without paying any rents for use and occupation of the suit 'B' schedule property. Average rent for such property in that area is Rs. 100/- per month. Thus, the plaintiff claims declaration of his title to the suit property by virtue of the Will, possession and damages of Rs. 3,500/- per month and further mesne profits at Rs. 100/- per month. 4. The defendant did not appear and contest the suit. The plaintiff got himself examined as PW1 and one Mariyappa as PW2 and got marked Exhibits P1 to P11. The trial Court on hearing the parties, framed the following points for consideration:- "(i) Whether the plaintiff proves that suit is maintainable in the present form without seeking prayer for declaration in respect of entire property? The plaintiff got himself examined as PW1 and one Mariyappa as PW2 and got marked Exhibits P1 to P11. The trial Court on hearing the parties, framed the following points for consideration:- "(i) Whether the plaintiff proves that suit is maintainable in the present form without seeking prayer for declaration in respect of entire property? (ii) Whether plaintiff is entitled for possession of plaint 'B' schedule property? (ii) Whether plaintiff is entitled for damages as claimed? (iv) What order or decree?" 5. By the impugned judgment, the trial Court dismissed the suit on the following grounds: (a) that the plaintiff ought to have sought relief of declaration of title in respect of both 'A'and 'B' schedule properties, therefore, suit is not maintainable. (b) the attesting witness does not speak about the execution of the Will and but only relies on Ex. P2, his deposition in a previous proceedings; thus the Will cannot be held as proved. 6. The learned counsel for the plaintiff reiterates the grounds of the appeal memo and contends that the defendant is in possession of only 'B' schedule property and no other heirs of the testator have challenged the Will. He further contends that the defendant is a stranger to the testator. He contends that having regard to the facts that the other legal representatives have not challenged the bequeath, he need not seek declaration of the title to the entire property. 7. Relying on Section 5 of the Specific Relief Act, he contends that he has to seek recovery of the possession, specific portion of the immovable property and not for the entire property. He contends that there is no cloud to his title in respect of plaint schedule 'A- property. Therefore it is not necessary for him to claim declaration for the whole property. 8. As against that, the counsel for the defendant contends that though the defendant has not filed written statement in the suit on hand, he contested the petition denying the execution of the Will, therefore declaration ought to have been sought for the entire property. She further contends that the defendant has suffered an accident in the year 1998 therefore, he could not contest the suit. She seeks remand of the matter and request to give an opportunity to contest the same. 9. She further contends that the defendant has suffered an accident in the year 1998 therefore, he could not contest the suit. She seeks remand of the matter and request to give an opportunity to contest the same. 9. Having regard to the aforesaid arguments and the facts this Court has to consider whether the impugned judgment and decree is sustainable or not and on the issue why the defendant could not contest the suit. 10. So far as the question of maintainability of the suit without seeking declaration of title for the entire 'A- and 'B' schedule properties or plaintiff's justification in seeking declaration of title only in respect of 'B' schedule property Section 34 of the Specific Relief Act, 1963 which reads as follows.... "34. Discretion of court as to declaration of status or right.- Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief." The above section makes it clear that the plaintiff has to seek declaration only if his title to the property is denied. 11. The plaintiff in the plaint contends that the defendant denied the jural relationship in HRC petition therefore that came to be dismissed on that ground. But, he has not produced the copy of the said order before the Trial Court. Therefore, it is clear that the trial court was not in a position to appreciate whether the denial by the defendant was for the entire property or for only 'B' schedule property. It is up to the plaintiff to produce the said document and contend that he is required to seek declaration for a portion of the plaint schedule property alone and therefore he has sought declaration to that extent. 12. Even otherwise there was no basis for the Trial Court to hold that the defendant has denied the title of the plaintiff for the entire property as the defendant filed no written statement. Atleast, the court should have called for the plaintiff to produce the copy of the judgment in HRC No. 193/1996. 13. 12. Even otherwise there was no basis for the Trial Court to hold that the defendant has denied the title of the plaintiff for the entire property as the defendant filed no written statement. Atleast, the court should have called for the plaintiff to produce the copy of the judgment in HRC No. 193/1996. 13. The plaintiff has produced only a copy of the petition in HRC No. 193/1996 at Ex.P10. Ex.P10 shows that the notice sent to the defendant was returned with an endorsement 'not claimed'?. Had the notice been served and the defendant issued reply denying the title of the plaintiff to the entire property or the Will, the trial court would have been justified in holding that the plaintiff is required to seek declaration of the title to the entire property. 14. So far as seeking delivery of only 'B' schedule property and application of Section 5 of Specific Relief Act, the trial Court has not dismissed the plaint finding error in seeking possession of only 'B' schedule property. Therefore, that question does not arise for consideration in this case. 15. Further the counsel for the plaintiff contends that he has examined the testator's witness as PW-2. Trial Court has erred in holding that the Will is not proved. As rightly, observed by the Trial Court, though PW2 was examined in his evidence he does not speak about the execution of the Will nor does he identify the signature of the testator of Will on Ex.P2. 16. The learned counsel for the plaintiff contends that PW2 has stated that he has already given his evidence as per Ex.P11 in HRC No. 193/1996 and trial Court should have adopted the same evidence in the case on hand. He further contends that Ex.P11 is admissible under section 33 of Indian Evidence Act. 17. Section 33 of the Indian Evidence Act does not speak the admissibility of the document produced but it only speaks of the relevancy of the deposition of the witness given in previous proceedings. Even as per Section 33 of the Evidence Act, such depositions of previous case can be adduced only when the witnesses is dead or cannot be found or is incapable of giving evidence or etc., Plaintiff having examined PW2 as attesting witness, fails to get the signature on Ex.P2 identified through PW2 or the execution of the document. 18. Even as per Section 33 of the Evidence Act, such depositions of previous case can be adduced only when the witnesses is dead or cannot be found or is incapable of giving evidence or etc., Plaintiff having examined PW2 as attesting witness, fails to get the signature on Ex.P2 identified through PW2 or the execution of the document. 18. Section 32 of the Indian Evidence Act bars admitting of the statement of a living person in evidence. Section 68 of the Indian Evidence Act requires that when ever the document is compulsorily attestable, the party relying on such document has to be proved by examining atleast one attesting witness. It is not disputed that the Will is a compulsorily attestable document. Therefore, the plaintiff was required to prove the Will in accordance with the aforesaid sections. Therefore, the Trial Court was justified in holding that evidence of PW2 is not in compliance with the primary requirement of law to prove Exhibit P2. 19. The trial Court also committed an error in admitting Ex.P11 in evidence. The trial court should have raised that issue of admissibility of Ex. P11 while marking that document itself, so that the plaintiff would have got an opportunity to prove Ex.P2 in accordance with law or get a chance to meet the point of the Court on that. 20. Having regard to all these, Court is satisfied that the material placed before the trial court for adjudicating the matter was insufficient and having admitted Ex.P11 in evidence and plaintiff's rights should have been adjudicated on merits after giving the plaintiff a reasonable opportunity. 21. The counsel for the respondent under I.A. No. 2/2016 seeks to produce before this Court the copy of the judgment in HRC No. 193/1996 and contend that execution of Will itself was denied, therefore, the Will should have been proved in accordance with law. But as already pointed out the said document was not available to the trial court to consider that ground. 22. The learned counsel for the respondent further contends that he has filed a suit before City Civil Court, Bengaluru challenging the Will. She further contends that the said matter is pending in C.Misc No. 15/11. 23. But as already pointed out the said document was not available to the trial court to consider that ground. 22. The learned counsel for the respondent further contends that he has filed a suit before City Civil Court, Bengaluru challenging the Will. She further contends that the said matter is pending in C.Misc No. 15/11. 23. Since the trial court has disposed of the matter on preliminary points on maintainability of the suit and this court has already held that material placed before the Trial Court is sufficient to adjudicate the right of the plaint. Therefore the impugned judgment and decree need to be set aside and the matter requires a remand. On such remand, It is open to the defendant to produce the documents and urge all the points before the trial court. 24. For the aforesaid reasons the appeal is allowed. The impugned judgment and decree is set aside and the matter is remanded to the Trial Court for fresh adjudication after giving opportunity to both the parties. I.A. No. 2/2016 stands disposed of accordingly. 25. Since the matter is already more than 15 years, the trial Court is directed to dispose of the suit as expeditiously as possible, at any rate, not beyond 6 months from the date of receipt of copy of the records from this Court. Parties are directed to appear before the trial Court on 30.05.2017 without awaiting any further notice. 26. No order as to costs.