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2022 DIGILAW 1627 (KAR)

Daiyakku v. Khatijamma

2022-12-27

M.G.UMA

body2022
JUDGMENT/ORDER 1. The plaintiff has preferred this appeal impugning the judgment and decree dtd. 30/7/2013 passed in O.S.No.1011/2010 on the file of the learned III Additional Civil Judge and JMFC, Mangalore, D.K. (hereinafter referred to as 'the trial Court' for brevity) dismissing the suit of the plaintiff filed for permanent injunction which was confirmed vide judgment and decree dtd. 13/2/2017 passed in R.A.No.131/2013 on the file of the learned III Additional Senior Civil Judge and JMFC, Mangaluru, D.K. (hereinafter referred to as 'First Appellate Court' for brevity). 2. For the sake of convenience, parties are referred to as per their status and rank before the Trial Court. 3. Brief facts of the case are that the plaintiff sought for perpetual injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the schedule property i.e., the vacant site measuring 10 cents in Sy.No.79/5A situated at Kotekar Village, Mangalore Taluk. It is the contention of the plaintiff that total extent of 35 cents in Sy.No.79/5A was purchased by her and her husband late Ramayya Shetty, under the sale deed dtd. 28/10/1960. The husband of the plaintiff released his half share over the property under release/settlement deed dtd. 15/10/1966 in favour of plaintiff. Thus, the plaintiff is the absolute owner in possession of the schedule property. It is contended that due to some internal dispute with her husband, plaintiff started residing separately along with her son and at that time, the father of the defendants Sri. U.P.Arabi kunhi in collusion with the husband of plaintiff concocted certain documents in respect of the schedule property. However, the said documents were not acted upon to mutate the names of the defendants. When the plaintiff applied for mutation of her name in the revenue records, it is brought to her notice that the mutation was affected only in respect of 18.75 cents. She came to know about the order passed by the Tahsildhar, Mangalore Taluk on 23/6/2010, where the defendants have applied for mutating their names in the revenue records. As per order dtd. 13/4/2010, the Assistant Commissioner, Mangalore Sub-Division, ordered for mutation of the name of the defendants said to be on the basis of the sale deed executed by the husband of plaintiff. It is contended that the husband of the plaintiff had no right over the schedule property to sell the same in favour of the defendants' father. 13/4/2010, the Assistant Commissioner, Mangalore Sub-Division, ordered for mutation of the name of the defendants said to be on the basis of the sale deed executed by the husband of plaintiff. It is contended that the husband of the plaintiff had no right over the schedule property to sell the same in favour of the defendants' father. It is stated that the defendants are trying to interfere with the possession and enjoyment of the schedule property by the plaintiff. Therefore, she filed the suit for perpetual injunction restraining the defendants and their men from interfering with her possession and enjoyment of the schedule property. 4. The defendants have appeared before the Court and defendant No.7 filed the written statement contending that 35 cents of land in Sy.No.79/5A was originally belonging to Ramaiah and Devaki under sale deed dtd. 28/10/1960. Later Ramayya Shetty along with his children Smt. Nalini, Jagannath and Smt. Mallika sold 10 cents of the land in favour of U.P.Arabi Kunhi under the sale deed dtd. 6/10/1988. After the death of U.P.Arabi Kunhi, the defendants who are his children came in possession and enjoyment of the property. Thus, it is contended that the defendants are the owners in possession of the 10 cents of the property. It is also contended that the plaintiff was absconding when Ramayya Shetty along with his children executed the sale deed in favour of defendants' father. Her whereabouts were not known for more than 25 years. Therefore, thinking that she is dead, the sale deed was came to be executed in respect of 10 cents of land. Another 15 cents of land was sold in favour of a third party, who put-up a house over the said property. The plaintiff has not challenged the sale deed in respect of the said 15 cents of land. 5. Further, the defendant denied execution of the settlement deed dtd. 15/10/1966 said to have been executed by Ramayya Shetty in favour of the plaintiff. Even otherwise, the said document was suppressed by Ramayya Shetty and his children. U.P.Arabi Kunhi is a bonafide purchaser for value without notice. The defendants are in settled possession of the schedule property. Therefore, no perpetual injunction could be granted in favour of the plaintiff. Accordingly, he prays for dismissal of the suit. Defendant Nos.1 to 6 and 8 have filed the memo adopting the written statement filed by defendant No.7. 6. U.P.Arabi Kunhi is a bonafide purchaser for value without notice. The defendants are in settled possession of the schedule property. Therefore, no perpetual injunction could be granted in favour of the plaintiff. Accordingly, he prays for dismissal of the suit. Defendant Nos.1 to 6 and 8 have filed the memo adopting the written statement filed by defendant No.7. 6. On the basis of these pleadings, the Trial Court framed the following issues as under: 1. Whether the plaintiff proves that, she is in possession of the suit schedule property as on date of filing of the suit? 2. Whether the plaintiff proves that the alleged interference caused by the defendant? 3. Whether the plaintiff is entitled for Permanent Prohibitory Injunction as prayed in the plaint? 4. What Order or Decree?" 7. The plaintiff examined herself as PW.1 and got marked Exs.P1 to P6. Defendants examined DW.1 and got marked Exs.D1 to D6. The trial Court after taking into consideration all these materials on record, answered issue Nos.1 to 3 in the negative and dismissed the suit of the plaintiff. Being aggrieved by the same, the plaintiff preferred regular appeal in R.A.No.131/2013. The First Appellate Court on re-appreciation of the materials on record, dismissed the appeal and confirmed the judgment and decree passed by the trial Court. Therefore, the plaintiff is before this Court impugning the concurrent findings of fact recorded by the trial Court and the First Appellate Court. During the pendency of the second appeal, plaintiff died and her son was brought on record. 8. Heard Sri. G.Balakrishna Shastry, learned counsel for the appellant. Respondent Nos.1, 2, 5 and 7 are served but unrepresented. Perused the materials on record. 9. Learned counsel for the appellant contended that the husband of the plaintiff and her children were not having any right to execute the sale deed as per Ex.D1 in favour of father of defendants 2 to 8. The plaintiff is the absolute owner of the schedule property by virtue of Exs.P5 and P6. It is further submitted that the husband of the plaintiff asserts that plaintiff is already dead, which is apparently false. Therefore, the sale deed is a void document which is liable to be ignored by the plaintiff. 10. The plaintiff is the absolute owner of the schedule property by virtue of Exs.P5 and P6. It is further submitted that the husband of the plaintiff asserts that plaintiff is already dead, which is apparently false. Therefore, the sale deed is a void document which is liable to be ignored by the plaintiff. 10. He further submitted that the trial Court and the First Appellate Court concurrently held that the plaintiff is not in possession and enjoyment of the schedule property and therefore, not entitled for permanent injunction. The appellant filed I.A.No.1/2017 under Order VI Rule 17 of CPC, seeking permission to amend the plaint to include an alternative prayer for a decree for possession of the schedule property, directing defendant Nos.1 to 8 to deliver vacant possession of the schedule property in favour of the plaintiff. Learned counsel submitted that since the sale deed Ex.D1 is a void document, which is liable to be ignored, the relief of possession is required to be granted in favour of the plaintiff even if it is to be held that the plaintiff is not in possession of the property. Since the suit of the plaintiff is based on title, the relief of possession could be sought within 12 years. Hence, he prays for allowing the application and the appeal in the interest of justice. 11. Learned counsel placed reliance on the decision in the case of A.K.GUPTA AND SONS LTD v. DAMODAR VALLEY CORPORATION, AIR 1967 SC 96 . to contend that even if it is to be held that the statutory period of limitation is expired, still the amendment could be allowed. 12. He also placed reliance on the decision in the case of PANKAJA AND ANOTHER v. YELLAPPA (DEAD) BY LRS. AND OTHERS, (2004) 6 SCC 415 . to contend that there is no absolute rule to reject the application for amendment simply because the relief is barred by limitation. He also placed reliance on the decisions in the case of RAMCHANDRA SAKHARAM MAHAJAN v. DAMODAR TRIMBAK TANKSALE (D) & ORS. WITH RAMCHANDRA v. RAJENDRA SHRIKRISHNA DESHMUKH & ORS, AIR 2007 SC 2577 . and in ABDUL REHMAN AND ANOTHER v. MOHD. RULDU AND OTHERS, (2012) 11 SCC 341 . in support of his contention that application I.A.No.1/2017 is to be allowed in the interest of justice. 13. WITH RAMCHANDRA v. RAJENDRA SHRIKRISHNA DESHMUKH & ORS, AIR 2007 SC 2577 . and in ABDUL REHMAN AND ANOTHER v. MOHD. RULDU AND OTHERS, (2012) 11 SCC 341 . in support of his contention that application I.A.No.1/2017 is to be allowed in the interest of justice. 13. Perused the materials on record in the light of the submission made by learned counsel for the appellant. 14. It is the specific contention of the plaintiff that she being the owner of the schedule property by virtue of the sale deed and the settlement deed executed in her favour, is in possession of the same and she is entitled for perpetual injunction against the defendants who are claiming right under the registered sale deed-Ex.D1. But the plaintiff who is examined as PW.1 during crossexamination pleads ignorance that she was ousted from the schedule property. However, she states specifically that U.P.Arabi Kunhi, who purchased the property under Ex.D1, put up a fence surrounding the schedule property and therefore, she filed the suit. She admits that the other land which was sold in favour of the third party is also not in her possession. 15. Ex.D1 is the registered sale deed dtd. 6/10/1988. The recitals in the said documents disclose that the vendors i.e., the husband and children of the plaintiff have asserted that the plaintiff is already dead and therefore, they are having the right over her half share in the schedule property and accordingly, sold the same under the registered sale deed and the property was put in possession of the purchaser- U.P.Arabi Kunhi on the date of the sale deed i.e., on 6/10/1988. 16. The plaintiff while filing the suit categorically stated that for few years she was residing separately and during her absence, her husband and children have concocted some documents in favour of U.P.Arabi Kunhi. Her reference is specifically to Ex.D1. Moreover, the plaintiff categorically admits that the defendants have put up fence surrounding the schedule property and therefore she filed the suit. This admission itself proves that it was the defendants who are in possession and enjoyment of the schedule property on the basis of Ex.D1. Her reference is specifically to Ex.D1. Moreover, the plaintiff categorically admits that the defendants have put up fence surrounding the schedule property and therefore she filed the suit. This admission itself proves that it was the defendants who are in possession and enjoyment of the schedule property on the basis of Ex.D1. Even if the contention of the learned counsel for the appellant is to be accepted that the plaintiff is entitled to ignore the sale deed Ex.D1 as the same is void, even then when the plaintiff failed to prove her possession over the schedule property, she is not entitled for the perpetual injunction. There is no explanation as to why she has not sought for the possession of the property by seeking declaration to avoid the registered sale deed-Ex.D1. When there is a registered deed transferring the right over the immovable property, the plaintiff is required to annule the same by seeking declaration to that effect even when she is not a party to the document. 17. The trial Court and the First Appellate Court on proper appreciation of the materials on record, recorded concurrent finding of facts that it is the defendants who are in possession of the schedule property and not the plaintiff. I do not find any reason to form a different opinion in that regard. 18. Learned counsel for the appellant filed I.A.No.1/2017 seeking to amend the plaint by including an alternative prayer for possession and directing the defendants to deliver vacant possession of the schedule property. This application was filed on 11/8/2017. It is contended by the learned counsel for the appellant that the plaintiff is seeking possession based on her title. Ex.D1 is the registered sale deed dtd. 6/10/1988, whereunder, the possession of the schedule property was delivered in favour of the purchaser-U.P.Arabi Kunhi who is the father of defendant Nos.2 to 8. The suit O.S.No.1011/2010 was filed on 27/11/2010. But no relief of possession was sought in the suit. Therefore, the relief of possession is now sought to be raised as claimed under I.A.No.1/2017, is more than 29 years after the date of Ex.D1. Even if Article 65 of the Limitation Act, 1963, is to be applied, the prayer made by the plaintiff for possession of the schedule property is barred by limitation. 19. Therefore, the relief of possession is now sought to be raised as claimed under I.A.No.1/2017, is more than 29 years after the date of Ex.D1. Even if Article 65 of the Limitation Act, 1963, is to be applied, the prayer made by the plaintiff for possession of the schedule property is barred by limitation. 19. It is the contention of the learned counsel for the plaintiff that even if the relief is barred by limitation, the amendment as sought could be permitted. He places reliance on various decisions of the Hon'ble Apex Court. 20. I have gone through the decisions relied on by the learned counsel for the appellant. In the case of A.K.Gupta and Sons Ltd (supra) the Hon'ble Apex Court considered a situation where the appellant had filed a suit claiming only the declaration that on proper interpretation of the clause in the agreement, it is entitled for an enhancement of 20% over the tendered rate which was the sole difference between the parties with regard to the interpretation. It was pleaded that the work had been done under the contract and the suit was valued for the purpose of jurisdiction. However, court fee was paid only for the prayer of declaration. When the suit was resisted on maintainability, it was held that the suit is not maintainable and accordingly it was dismissed by the High Court. It was then the appellant sought for amendment of the plaint seeking for a decree for Rs.65, 000.00 or such other amount which may be found due on proper account being taken in favour of the plaintiff. Initially, the prayer for amending was refused. The Hon'ble Apex Court held that where the amendment does not constitute the addition of new cause of action or raise a different case, but amounts to no more than, a different or additional approach to the same facts, the amendment will have to be allowed even after the expiry of statutory period of limitation. By the majority view, the Hon'ble Apex Court held that the amendment sought would not introduce a new cause of action or a new case. Therefore, the amendment as sought was permitted. 21. By the majority view, the Hon'ble Apex Court held that the amendment sought would not introduce a new cause of action or a new case. Therefore, the amendment as sought was permitted. 21. In the case of Pankaja and Another (supra), the Hon'ble Apex Court considered a case where the plaintiff had sought for possession of the suit property based on title and about 6 years later, he filed an application to amend the plaint seeking declaration that he is the owner of the property as the defendants have raised a contention denying the title of the plaintiff and that the suit is not maintainable. The Hon'ble Apex Court held that there is an arguable question whether limitation applicable for seeking the relief of declaration on the facts of the case falls under Entry 58 or Entry 64 or Entry 65 of the Limitation Act, which is to be decided in the trial. Therefore, the plaintiff was permitted to carry out the amendment and trial Court was directed to frame necessary issue and to decide the same. 22. In the case of Ramchandra Sakharam Mahajan (supra), it is held that the suit of the plaintiff was for possession of the schedule land and the defendants denied the right of the plaintiff to recover possession. Plaintiff sought for amending the plaint in order to pinpoint the disputed property with better particulars. Under such circumstances, it was held even though the application was belated, the attempt to amend the plaint is to make his claim more precise, so as to enable the Court to adjudicate upon it more satisfactorily. Therefore, the amendment was permitted. 23. In the case of Abdul Rehman and Anr. (supra), the suit for partition was filed and during the pendency of the suit, an application seeking amendment of the plaint was filed. The application was rejected by the trial Court and the revision was also dismissed by the High Court. On facts, the Hon'ble Apex Court held that it is settled law that if necessary factual basis for amendment is already contained in the plaint, the relief sought on the said basis would not change the nature of the suit. Therefore, it was held that the view expressed by the trial Court as well as by the High Court is contrary to the settled proposition of law. Therefore, it was held that the view expressed by the trial Court as well as by the High Court is contrary to the settled proposition of law. It is further held that all amendments which are necessary for the purpose of determining the real questions in controversy between the parties should be allowed provided it does not change the basic nature of the suit. It is made clear that a change in the nature of relief claimed shall not be considered as a change in the nature of the suit and the power of amendment should be exercised in the larger interest of doing full and final justice between the parties. 24. In the case of MAHILA RAMKALI DEVI AND OTHERS v. NANDRAM (DEAD) THROUGH LEGAL REPRESENTATIVES AND OTHERS, (2015) 13 SCC 132 . the Hon'ble Apex Court held that it is the settled position that rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because some mistake, negligence, inadvertence or even infraction of rules of procedure. It is held that the court always gives relief to amend the pleading of the party, unless it is satisfied that the party applying was acting mala fide or that by his blunder, he had caused injury to his opponent which cannot be compensated by an order of cost. 25. On consideration of these decisions, the facts and circumstances of the present case is entirely different. The plaintiff filed the suit for perpetual injunction asserting that she is in possession and enjoyment of the schedule property. However, in the second appeal she seeks amending the plaint with an alternative prayer for possession of the property. It is pertinent to note that the plaintiff does not propose to amend the body of the plaint to plead as to when and how she lost the possession. There is also no explanation as to why such an alternative prayer is sought. It is pertinent to note that the pleadings in the plaint is entirely contrary to the proposed relief i.e., seeking possession of the property. If the amendment is allowed, the very nature of the suit and the cause of action would be changed. If at all, the plaintiff is compelled to seek relief of possession in view of Ex.D1, the sale deed dtd. If the amendment is allowed, the very nature of the suit and the cause of action would be changed. If at all, the plaintiff is compelled to seek relief of possession in view of Ex.D1, the sale deed dtd. 6/10/1988 executed by her husband and children in favour of husband of defendant No.1 and father of defendant Nos.2 to 8. It is under this registered sale deed, the possession of the schedule property was handed over to the purchaser. When the plaintiff seeks possession of the property, the cause of action should relate back to the date of the sale deed and the application seeking amendment is filed almost 29 years from the said date. Therefore, none of the decisions relied on by the learned counsel for the appellant would apply to the facts and circumstances of the present case. If the settled proposition of law on amendment is to be applied, the plaintiff is not entitled to seek the amendment of plaint without there being any pleading in support of such relief and when the nature of the suit itself would be changed by allowing the application. Moreover such amendment could not be permitted at this length of time. 26. In view of the discussion held above, I am of the opinion that none of the decisions referred to above applies to the facts and circumstances of the present case and suit of the plaintiff for possession is barred by limitation. Therefore, the appellant cannot maintain I.A.No.1/2017 for seeking the relief of possession in the second appeal. Hence, it is liable to be dismissed. 27. On the basis of the materials on record, I am of the opinion that the plaintiff lost possession over the property long back and therefore, she is not entitled for permanent injunction against the defendants who are actually in possession of the property. A concurrent finding of the fact by both the Courts do not call for interference by this Court. No substantial question of law would arise for my consideration and no grounds are made out to admit the appeal. Hence, I proceed to pass the following: ORDER a) I.A.No.1/2017 is dismissed. b) The appeal is dismissed with cost throughout. c) The judgment and decree dtd. 30/7/2013 in O.S.No.1011/2010 on the file of the learned III Additional Civil Judge and JMFC, Mangalore, D.K., which was confirmed vide judgment and decree dtd. Hence, I proceed to pass the following: ORDER a) I.A.No.1/2017 is dismissed. b) The appeal is dismissed with cost throughout. c) The judgment and decree dtd. 30/7/2013 in O.S.No.1011/2010 on the file of the learned III Additional Civil Judge and JMFC, Mangalore, D.K., which was confirmed vide judgment and decree dtd. 13/2/2017 in R.A.No.131/2013 on the file of the learned III Additional Senior Civil Judge and JMFC, Mangaluru, D.K., is hereby confirmed.