Karnataka High Court
N. Hanumantha Rao Vs Corporation
of the City of Bangalore
23 February 1996
Hon'ble Judges: R. RAMAKRISHNA,
J.
Advocates Appeared: S. Vijaya
Shankar, B. Gopala Gowda
Case Number: Regular First Appeal
Number 714/1995
Judgement
JUDGMENT:- In this Regular First
Appeal, the judgment and decree dated 28-9-1991 passed in O.S. No.10349 of 1988
by the XX Additional City Civil Judge, Mayo Hall Unit, Bangalore is impugned. Initially, the delay
in filing and re-filing the appeal are condoned.
2. Initially, this appeal was
filed without indicating the provision of law under which the appeal is filed.
Later, rectification is made by showing the provision of Order 41, Rule 1 of
the Code of Civil Procedure.
3. Having regard to the prayer to
expunge the observations made in the judgment and decree the notice was issued
to the respondent who is representing in this Court by a panel of Advocates.
Having considered the fact that a limited question of law is invoked on the
assertions made by the learned Advocates the appeal is heard on merits.
Admit.
4. This appeal raises the
following questions for consideration:-
1) A party in whose favour a
judgment and decree is passed can question a finding adverse to his title under
Order 41, Rule 1 of the Code of Civil Procedure?
2) Whether in a suit for
perpetual injunction based on lawful possession, the trial Court was right in
holding the question of ownership adverse to the plaintiff?
5. Before adverting to these
questions, a brief advertence to the facts is to be stated. The appellant
instituted a suit in O.S. No.88 of 1976 for a perpetual injunction restraining
the respondent-Corporation from conducting any sale as published in local
newspapers of suit schedule propety and also restraining from interfering with
the peaceful possession and enjoyment. The Corporation denied the title of the
plaintiffs vendor and also contended that the suit for bare injunction without
there being a prayer for declaration of title and possession is not
maintainable.
6. The trial Court on the
assertions made by the parties has dismissed the suit holding that the
plaintiff was not in lawful possession of the suit schedule properties. To
arrive at this conclusion, the trial Court expressed that in the absence of a
suit for declaration it cannot grant permanent injunction.
7. This finding of the trial
Court was questioned in R.F.A. No.57 of 1981 before this Court due to formation
of the City Civil Courts providing the jurisdiction of the Munsiffs which is
altogether a different system.
8. This Court by its order, dated
11-4-1988 has set aside the judgment and decree of the trial Court and the case
was remitted for disposal in accordance with law in the light of the
observations made in the judgment. Liberty
was granted for the parties to lead further evidence, if necessary. Though a
period of six months is granted for final disposal of the suit, the same came
to be decided by the judgment dated 28-9-1991.
9. The suit was renumbered due to
change of jurisdiction of the Court: An application of the plaintiff filed
under Order VI, Rule 17 for amendment of the plaint was also allowed and the
parties are allowed to adduce further evidence and the further evidence of the
parties also recorded.
10. The learned Judge retained
the issues framed in the earlier suit and decided the issues. The issue that
was framed in the earlier suit and retained after remand is:-
1. Does plaintiff prove that he
is in lawful possession of the suit property?
2. Is he entitled to injunction?
Findings given by the learned
Judge is that the plaintiff is in possession of the properties but he is not
its lawful owner. With regard to the second issue, after elaborate discussion,
the learned Judge held that the plaintiff has proved his possession as
evidenced by the documents but he is not its lawful owner.
Having come to such a conclusion, the learned Judge restrained the defendant
permanently from interfering with the plaintiff s possession of the suit
property otherwise than in due course of law.
11. Re. Q.1 :- Sri S. Vijjayashankar,
the learned Senior Advocate for the appellant, submits that the learned trial
Judge while giving a finding in favour of the appellant regarding his
possession on the basis of the documents has exceeded his jurisdiction in
giving a finding that he is not a lawful owner which is not the subject matter
of the issues framed by the Court. The further contention of the learned
Advocate is that the clog created by the learned Judge on the ownership of the
appellant has deprived the right of the appellant conclusively and therefore,
the appeal filed under Order 41, Rule 1 is maintainable.
12. Sri Gopala Gowda, the learned
Advocate representing the Corporation, has vehemently contended that the appeal
opposes to express provision contained in Section 96 of the Code of Civil
Procedure as the plaintiff has not challenged the judgment and decree of the
trial Court and therefore, this appeal is not maintainable.
13. Section 96(1) of the Code of
Civil Procedure provides for appeals from original decrees. The section
connotes that save where otherwise expressly provided in the body of this Code
or by any other law for the time being in force, an appeal shall lie from every
decree passed by any Court exercising original jurisdiction to the Court
authorised to hear appeals from the decisions of such Court. The Code defined
the judgment under Section 2, sub-clause (ii) and it means the statement given
by the Judge on the grounds of a decree or order. Sub-clause (2) of Section 2
defines the decree as a formal expression of an adjudication which so far as
records the Courts expressing it conclusively determines the rights of the
parties with regard to all or any of the matters in controversy in the suit and
may be either preliminary or final, but shall not include any adjudication from
which an appeal lies as an appeal from an order or any order of dismissal for
default.
14. Order 41, Rule 1 provides
that every appeal shall be preferred in the form of a Memorandum.
15. A distinction was made with
regard to the right of suit and right of appeal in Ganga Bai v. Vijay Kumar,
AIR 1974 SC 1126, that there is an inherent right in every person to bring a
suit of a civil nature and unless the suit is barred by statute, one may, at
one s peril, bring a suit of one s choice. A suit for its maintainability
requires no authority of law and it is enough that no statute bars the suit.
But the position in regard to the appeals is quite the opposite. The right of
appeal inheres in no one and therefore an appeal for its maintainability must have
the clear authority of law. That explains why the right of appeal is described
as a creature of statute.
The above distinction is made on
the facts that in a suit to enforce a mortgage of joint family property
executed by the father as a manager, a preliminary decree for sale was passed
only against the half share of the father in the mortgaged property and the
suit was dismissed against the sons on the ground that the mortgage not being
for legal necessity was not binding on the sons interest under the Hindu Law.
The sons filed an appeal not against any part of the preliminary decree but
only against the finding of the trial Court that the partition between the
father and sons effected subsequent to the mortgage in suit was a sham and
colourable transaction.
On these facts, it was held that
the appeal filed by the sons was not maintainable in law as it was directed
against a mere finding recorded by the trial Court.
In para 25 of the judgment, it
was held thus (page 1131):
"The position here is
similar to that in the Calcutta
case. The trial Court decreed the mortgagee s suit only as against defendant 1,
the father, and directed the sale of his one half interest in the mortgaged
property on the ground that part of the consideration for the mortgage was not
supported by legal necessity, the remaining part of the consideration was
tainted with immorality and therefore the mortgage was not binding on the
interest of
the sons, defendants 2 and 3. Whether the partition between the father and sons
was sham or real had no impact on the judgment of the trial Court and made no
material difference to the decree passed by it. The finding recorded by the
trial court that the partition was a colourable transaction was unnecessary for
the decision of the suit because even if the court were to find that the
partition was genuine, the mortgage would only have bound the interest of the
father as the debt was not of a character which, under the Hindu Law, would
bind the interest of the sons. There is no substance in the submission made on
behalf of the sons that if the partition was held to be genuine, the property
would have been wholly freed from the mortgage encumbrance. The validity or the
binding nature of an alienation cannot depend on a partition effected after the
alienation; or else, a sale or a mortgage effected by the Karta of a Joint
Hindu Family can easily be avoided by effecting a partition amongst the members
of the joint family. As the matter relating to the partition was not directly
and substantially in issue in the suit, the finding that the partition was sham
cannot operate as res judicata. Therefore, the appeal filed by, defendants 2
and 3 against that finding was not maintainable, even on the assumption that
the High Court of Calcutta is right in its view that though under the Code
there could be no appeal against a finding yet "On grounds of justice
" an appeal may lie against a finding provided that it would operate as
res judicata so as to preclude a party aggrieved by the finding from agitating
the question covered by the finding in any other proceeding. It is not
necessary here to determine whether the view of the Calcutta High Court is
correct. "
16. The above decision is quite
distinguishable as the maintainability of the appeal held against the appellant
as the half interest in the mortgaged property as it relates to the father as a
manager was conclusive and therefore, a finding recorded by the trial Court
that the partition was a colourable transaction was unnecessary for the
decision of the suit because even if the court were to find that the partition
was genuine, the mortgage would only have bound the interest of the father as
the debt was not of a character which, under the Hindu Law, would bind the
interest of the sons.
While deciding this question, the
Supreme Court has not disturbed the position of Law enunciated in Harchandra
Das v. Bholanath Das, ILR (1935) 62 Cal 701, where the view taken was that
though under the Code there could be no appeal against a finding, yet "On
grounds of justice " an appeal may lie against a finding provided that it
would operate as res judicata so as to preclude a party aggrieved by the
finding from agitating the question covered by the finding in any other
proceeding.
17. I fully endorse the view
expressed by the Calcutta High Court and hold that the appeal is maintainable.
18. Re. Q.2 :- The learned trial
Judge has maintained the issues as it was framed in the earlier suit decided by
the learned Munsiff, Civil Station in O.S. No.88 of 1976. The learned Munsiff
by showing his helplessness in deciding the question of ownership held the
lawful possession against the plaintiff and therefore, dismissed the suit for
perpetual injunction. This Court in R.F.A. No.57 of 1981 while remitting the
matter directed the Court for disposal of the case in accordance with law and
in the light of the observations made in the judgment. The observations could
be find at para 8 of the judgment which is reproduced below as the same is
having a strong bearing on the controversy involved in this appeal.
"It is true that the
question of title of the defendant to the suit property has been disputed. But
then, if the plaintiff was in possession whether in those circumstances his
prayer for a permanent injunction should still be rejected on the ground that
they should have sought for a declaration of his title being one aspect of the
matter, it seems to me the learned Judge was not justified in rejecting the
plaintiffs suit only on the ground that he should have also sought for a
declaration of his title without in the first instance scrutinising with care
the evidence led by the plaintiff in support of his case of being in
lawful possession of the suit property. .........The documents relied on by the
plaintiff, tended to show that he had paid tax to the suit property and he had
also registered transactions in regard to the same and, therefore, it was the
duty of the court below to have examined this evidence before rejecting the
plaintiff s suit on any other ground. "
19. The appellant, to establish
his ownership to the property, has relied on the documents tracing the title to
the property from the year 1919 till his purchase on 31-3-1969 under Ex. P-1.
After getting the katha in his name by the respondent he has performed the act
of sale deeds and mortgage deeds in accordance with law and he has also paid
Corporation taxes which was received without any demur.
20. The learned Judge appears to
have understood the lawful possession as a co-relationship with the ownership.
21. The term lawful possession as
defined in the Law Lexicon, Reprint Edition, 1987, by P. Ramanatha Aiyar at
page 712 as follows:-
Lawful Possession - The term
lawful possession is not convertible with "innocent possession " in
legal terminology. Intent does not enter into whether an act is unlawful or
tortious, though it does as to whether it is innocent or criminal.
The above defintion to the words
denotes that to establish lawful possession , it is absolutely necessary for a
party to prove with the documents which came into existence by lawful
transactions and that aspect is purely outside the scope of deciding lawful
ownership of a person when he claims a right for perpetual injunction on the
basis of lawful possession .
22. The evidence, both oral and
documentary, produced by the appellant, does not disprove his lawful possession
to the suit schedule property. It is not an innocent possession but legally
enforcible possession and therefore, the trial Court having framed an issue to
decide lawful possession has committed a grave illegality in giving a finding
that the appellant is not the lawful owner .
This finding of the trial Court
has taken away the right of the appellant as this finding amounts to res
judicata and therefore, it infringes the right of the appellant if an occasion
arises to establish his ownership to the property.
23. The submission of Sri B.
Gopala Gowda is that the parties have approached the Court with the clear
understanding as to what is to be proved which included the question of
ownership is legally untenable.
24. The direction contained when
this matter came up before this Court in R.F.A. No.57/1981 is indicative of the
fact that what the Court should decide before granting permanent injunction is
lawful possession of the plaintiff in view of the various acts committed by him
from the date of his purchase till he filed the suit for injunction.
25. If the trial Court required
to decide the question of ownership nothing prevented for the Court to frame an
issue directing the plaintiff to prove his ownership by framing an issue to
this effect. The parties have proceeded in the trial with a clear understanding
that the proof of lawful possession is a condition precedent for issue of
perpetual injunction. In Nagar Palika, Jind v. Jagat Singh, AIR 1995 SC 1377, on
which advertence is made by Sri Gopala Gowda relates to the claim of title with
substantial documents without recording a finding, but adverting to revenue
records and the non-denial by the defendant in the suit.
26. The learned Advocate for the
respondent also made reference to another Supreme Court decision reported in
Nagubai Ammal v. B. Shama Rao, 1956 SCR 451 :(AIR 1956 SC 593). In this case,
the respondent did not specifically raise the question of lis pendens in his
pleadings nor was an issue framed on the point, but he raised the question at
the very commencement of the trial in his deposition, proved relevant documents
which were admitted into evidence without any objection from the appellants who
filed their own documents, cross-examined the respondents and invited the Court
to hold that the suit for
maintenance and a charge and the connected proceedings evidenced by these
documents were collusive in order to avoid operation of Section 52 of the
Transfer of Property Act.
In this background the Supreme
Court held that in the facts and circumstances of the case the omission of the
respondent to specifically raise the question of lis pendens in his pleading
did not take the appellants by surprise and was a mere irregularity which
resulted in no prejudice to them.
This decision is not of any
assistance to the respondent as the question involved in the present appeal is
a matter of giving a finding which is not the outcome of issues.
27. It is submitted that an
appeal against this judgment filed by the respondent-Corporation in R.F.A.
No.150 of 1992 came to be dismissed in limine as there was absolutely no
grounds to admit the appeal. This order was made on 26-6-1992.
28. It is submitted by Sri S.
Vijayashankar, the learned Senior Advocate, that recording a finding by the
trial Court that the appellant is not a lawful owner has resulted in issuing a
notice of eviction from the respondent-Corporation under the Karnataka Public
Premises (Eviction of Unauthorised Occupants) Act, 1974 and the same is challenged
in Writ Petition No.12397 of 1993 and the same is pending.
29. Having regard to these facts
and circumstances, in the light of the fact that the appellant has proved his
lawful possession over the suit schedule property both on oral and documentary
evidence, the finding of the trial Court on this question requires
interference.
30. Therefore, the conclusion
reached at the penultimate para of the judgment to the effect:
"but he is not its lawful
owner "
is being contrary to issue No.1
is herby expunged from the judgment.
The conclusion of the trial Judge
recognising the physical possession of the suit property is not disturbed.
The appeal is disposed of
accordingly.
In view of the peculiar
circumstances, the parties shall bear their own costs.
Order accordingly.
