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?

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.