SRI K. PUTTASWAMY v. SMT. SUDHA

c. SRI B P PUSHPALATHA D/O LATE K PUTTASWAMY W/O RUDRESH AGED ABOUT 45 YEARS RESIDING AT NO 6/A 2ND MAIN, 3RD CROSS 1ST FLOOR, BAPUJI NAGAR MYSORE ROAD BENGALURU- 26 d. SMT B.P DANALAKASHMI D/O LATE K PUTTASWAMY - 5 - NC: 2024:KHC:45783-DB RFA No. 1222 of 2010 C/W RFA No. 63 of 2012 W/O MAHESH AGED ABOUT 40 YEARS R/AT AT BYRAVESHWARANAGAR JALAHALLI BENGALURU e. SMT B P NANDINI @ LEELAVATHI D/O LATE K PUTTASWAMY W/O LAKSHMIKANTH AGED ABOUT 38 YEARS R/AT NO 6/A, 2ND MAIN 3RD CROSS, GROUND FLOOR BAPUJI NAGAR MYSORE ROAD BENGALURU – 26 f SRI B P MOHAN KUMAR S/O LATE K PUTTASWAMY AGED ABOUT 35 YEARS R/AT NO 6/A 2ND MAIN, 3RD CROSS GROUND FLOOR, BAPUJI NAGAR MYSORE ROAD BENGALURU -26 REPTD. BY THEIR PA HOLDER C NARAYANASWAMY S/O CHINNAIAH AGED ABOUT 34 YEARS R/AT NO 11 OPPOSITE TO KAVIKA BYATARAYANAPURA MYSORE ROAD, BENGALURU- 26 (BY SRI.P.B.AJITH.,ADVOCATE) AND:

SMT. SUDHA W/O H T DWARAKANATH AGED ABOUT 46 YEARS R/AT NO. 32, 11THCROSS …APPELLANTS - 6 - NC: 2024:KHC:45783-DB RFA No. 1222 of 2010 C/W RFA No. 63 of 2012 BAPUJINAGAR BENGALURU – 26.

SRI RAMESH S/O LATE K PUTTASWAMY AGED ABOUT 37 YEARS R/AT NO 6/A, 2ND MAIN 3RD CROSS, FIRST FLOOR BAPUJI NAGAR MYSORE ROAD BENGALURU – 26 (LR (g) MADE AS RESPONDENT NO 2 AS HE IS NOT WITH OTHER LR) (BY SRI.Y.K.NARAYANA SHARMA & SRI.Y.V.PRAKASH., ADVOCATES FOR R-1; SRI.H.HARINATH., ADVOCATE FOR R-2) … APPELLANTS THIS RFA IS FILED U/S 96, OF CPC, AGAINST THE JUDGMENT AND DECREE DATED01.06.2010 PASSED IN O.S.5785/1995 C/W 9742/2006 ON THE FILE OF THE XXIV ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE, DISMISSING THE SUIT FOR PERMANENT INJUNCTION. THESE APPEALS, ARE COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE S.G.PANDIT HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR - 7 - NC: 2024:KHC:45783-DB RFA No. 1222 of 2010 C/W RFA No. 63 of 2012 ORAL JUDGMENT (PER: HON'BLE MR JUSTICE S.G.PANDIT) Plaintiffs’ appeal under Section 96 of the Code of Civil Procedure, 1908, aggrieved by the judgment and decree

01.06.2010 O.S.No.5785/1995 O.S.No.9742/2006 on the file of XXIV Additional City Civil and Sessions Judge, Bangalore City, whereby the plaintiffs’ suits for injunction as well as declaration are rejected.

2. The parties would be referred to as they stand before the trial Court.

The brief facts of the cases are that: The plaintiffs initially filed a suit for bare injunction in O.S.No.5785/1995 stating that they are in possession of the suit schedule property having purchased the same from Smt. Muniyamma and Smt. Mayamma registered sale deed dated 27.06.1980. One Sri. Munivenkatappa was the owner of the property who had gifted the property to his wives under Gift Deeds - 8 - NC: 2024:KHC:45783-DB RFA No. 1222 of 2010 C/W RFA No. 63 of 2012 dated 20.11.1973 and 15.11.1973 i.e., in favour of Muniyamma and Mayamma.

On appearance of the defendants, the defendants filed objections to I.A.No.1 filed under Order 39 Rules 1 and 2 of CPC contending that the plaintiffs are not in possession, whereas the defendants are in possession of the suit schedule property. Further they stated that the plaintiffs are not the owners and defendants are the owners in possession of the suit schedule property. As the defendants failed to contest the suit, the suit was decreed ex-parte on 11.06.1999. Thereafter, on the Miscellaneous Petition filed by defendants in Misc. Petition No.549/1999 under Order IX Rule 13 of CPC, the same was allowed on

09.07.2003, permitting the defendants to file written statement. In the written statement, the defendants had taken a specific contention that the plaintiffs are not owners whereas the defendants are the owners in possession of the suit schedule property. Taking note of the above averment, it is stated that the plaintiffs filed - 9 - NC: 2024:KHC:45783-DB RFA No. 1222 of 2010 C/W RFA No. 63 of 2012 amendment application under Order VI Rule 17 of CPC to amend the plaint to include the prayer for declaration on

28.06.2006. On the same day, the application for amendment was dismissed with liberty to file fresh application. Accordingly, fresh application said to have filed on 12.07.2006. The said amendment application was rejected on 05.08.2006, with liberty to the plaintiffs to file fresh suit. Accordingly, learned counsel for the plaintiffs submits that the fresh suit was filed on

09.11.2006, with a prayer for declaration of title in favour of the plaintiffs. The said suit is numbered as O.S.No.9742/2006.

On service of suit summons, the defendants appeared before the Court in O.S.No.9742/2006 and filed their written statement. In their written statement, the defendants specifically contended that the suit prayer is barred by time and also denied the title of the plaintiffs. Further it is contended by the defendants that the suit for declaration without consequential prayer of possession - 10 - NC: 2024:KHC:45783-DB RFA No. 1222 of 2010 C/W RFA No. 63 of 2012 would not be maintainable. Thus, the defendants sought for dismissal of the suits.

Based on the pleadings of the parties, the trial Court framed the following issues separately in both the suits: In O.S.No.5785/1995:

1. Whether the plaintiff proves his lawful possession over suit schedule property?

2. Whether the plaintiff further proves the unlawful interference by the defendant over the suit schedule property?

3. What Order or decree? In O.S.No.9742/2006:

1. Does plaintiff prove that he became owner of plaint B schedule property by virtue of sale deed dated 27.06.1980 executed by Muniyamma W/o. Munivenkatappa, General Power Attorney dated

10.04.1981 executed by said Muniyamma, General Power of Attorney dated 10.06.1981 executed by Mayamma (w/o. Munivenkatappa)?

2. Does plaintiff prove that he was in lawful possession of suit schedule property on the date of suit?

3. Is the present suit barred by Order 3 Rule 2 of CPC in view of pendency of OS 5785/1995 - 11 - NC: 2024:KHC:45783-DB RFA No. 1222 of 2010 C/W RFA No. 63 of 2012 between the parties and dismissal of OS 6496/94 and OS 2089/95?

4. Is alleged interference true?

5. Was schedule property part O.S.No.5/2003 of Byatarayanapura?

6. Was the property which was bequeathed in favour of Anjanappa under the Will dated

29.11.1971 executed Munivenkatappa subsequently sold by Munivenkatappa in favour of Ranganna under sale deed dated 05.11.1973?

If so, did defendant derive any title under the sale deed dated 16.01.1996 executed by Anjanappa?

Did plaintiff sell a portion measuring 45 ft. x 45 ft. in favour of Rudraiah on 09.10.1991 and another portion measuring 33 ft. x 33 ft. in favour of Smt. Lakshmi under sale deed dated 11.04.2005 as pleaded in para 7 of written statement?

Is the present suit barred by limitation?

Is the suit bad for non-joinder of purchasers of properties adjacent to schedule property from Munivenkatappa?

What decree or order? After deleting issues 1 to 8 and 10, the following issues are framed:

1. Whether the plaintiff proves that he is the absolute owner and in possession of the suit schedule property? - 12 - NC: 2024:KHC:45783-DB RFA No. 1222 of 2010 C/W RFA No. 63 of 2012

2. Whether the plaintiff proves the interference of the defendant?

4. Is the present suit barred by limitation? Is the suit bad for non-joinder of purchasers of properties adjacent to schedule property from Munivenkatappa?

5. What decree or order? Additional Issues:

1. Whether the plaintiff proves that he is the absolute owner and in possession of suit schedule property?

2. Whether the plaintiff proves the interference of the defendant?

7. In support of their case, the plaintiffs examined two witnesses as P.W.1 and P.W.2 apart from marking the documents as Ex.P1 to Ex.P39, whereas the defendants also examined two witnesses as D.W.1 and D.W.2 and marked the documents as Ex.D1 to Ex.D48.

8. The trial Court, on appreciation of the material on record dismissed both the suits on the ground that the suit for declaration is barred by time and - 13 - NC: 2024:KHC:45783-DB RFA No. 1222 of 2010 C/W RFA No. 63 of 2012 that the plaintiffs have failed to prove their possession over the suit schedule property. Aggrieved by the same, the plaintiffs are before this Court in these two appeals.

9. Heard learned counsel Sri.P.B.Ajit appellants/plaintiffs learned counsel Sri.Y.K.Narayana Sharma Respondents/ defendants. Perused the appeal papers as well as trial Court records.

10. Sri.P.B.Ajit, learned counsel for the appellants/ plaintiffs would submit that the judgment and decree in appeal is the result of non-appreciation of material on record. Learned counsel would submit that the suit for bare injunction was filed on 27.08.1995 which was decreed ex-parte on 11.06.1999. Further, he submits that the judgment and decree was set aside on 26.11.2002 whereas the application for amendment of the prayer to include declaration filed on 28.06.2006. Though the said - 14 - NC: 2024:KHC:45783-DB RFA No. 1222 of 2010 C/W RFA No. 63 of 2012 application was dismissed, subsequently, application was filed and limitation ought to have been calculated from 28.06.2006 and if that day is taken note of, the suit filed for declaration on

09.11.2006 is within time.

11. Sri. Ajit, learned counsel for the plaintiffs further submits that the observation of the trial Court that Munivenkatappa had executed sale deed in favour of the plaintiffs is not correct and in fact, he submits that wives of Munivenkatappa executed sale deed in favour of plaintiffs, which indicates that the learned trial judge has not applied his mind to the materials on record. Further, learned counsel would also submit that the trial Court failed to appreciate the material on record and has wrongly come to the conclusion that the plaintiffs are not in possession of the suit schedule property. Learned counsel would submit that the material on record would indicate that the plaintiffs are in possession of - 15 - NC: 2024:KHC:45783-DB RFA No. 1222 of 2010 C/W RFA No. 63 of 2012 the suit schedule property and suit for injunction was on the basis of his lawful possession over the schedule property. Thus, learned counsel would submit that the trial Court committed a grave error in rejecting the suits.

Per contra, learned counsel Sri.Y.K.Narayana Sharma appearing for defendants would support the judgment and decree passed by the trial Court and further submits that the suit is hopelessly barred by time. It is pointed out that the application for amendment of plaint was filed on 28.06.2006, whereas the application was rejected on 05.08.2006 with liberty to file fresh suit. But the fresh suit was filed on 09.11.2006. Moreover, he submits that title of the plaintiffs was denied by the defendants while filing objections to I.A. for injunction on 12.09.1995. Thus, learned counsel would submit that cause of action to file the suit for declaration arose on

12.09.1995 itself and the suit filed for declaration on - 16 - NC: 2024:KHC:45783-DB RFA No. 1222 of 2010 C/W RFA No. 63 of 2012

09.11.2006 is hopelessly barred by time. Further, he submits that there is no averment in the plaint as to when the cause of action arose for declaration.

Learned counsel Sri. Narayana Sharma further contends that the first suit filed by the plaintiffs was for permanent injunction and subsequent suit filed by the plaintiffs was for declaration. The defendants have pointed out that the plaintiffs are not in possession and the averment of plaint also indicates that the plaintiffs were not in possession. In that circumstance, without the prayer for possession, mere suit for declaration would not be maintainable. Learned counsel Sri. Narayana Sharma places reliance on the judgment of the Honb'le Supreme Court in ANATHULLA SUDHAKAR v/s P.BUCHI REDDY (DEAD) BY L.Rs. reported in AIR 2008 SC 2033 as well as AIR 2017 SC 1034 in the case of EXECUTIVE OFFICER, ARULMIGU CHOKKANATHA SWAMY KOIL TRUST, - 17 - NC: 2024:KHC:45783-DB RFA No. 1222 of 2010 C/W RFA No. 63 of 2012 VIRUDHUNAGAR v/s. CHANDRAN AND OTHERS. Learned counsel also places reliance on AIR 2011 SC 3590 in the case of KHATRI HOTELS PVT. LTD. AND ANOTHER v/s UNION OF INDIA AND ANOTHER and the decision reported in AIR 2015 SC 3364 in the case of L.C.HANUMANTHAPPA DEAD BY L.Rs. v/s. H.B.SHIVAKUMAR to contend that the limitation of 3 years would commence from the date of cause of action first accrues to file suit for declaration. Thus, learned counsel pray for dismissal of the appeals.

On hearing the learned counsel for the parties and on perusal of the appeal papers along with original records of the trial Court, the following points would arise for consideration: (a) Whether the trial Court is justified in dismissing the suit for declaration on the question of limitation? (b) Whether the suit of the plaintiffs for declaration without possession in the facts and circumstances would be maintainable? - 18 - NC: 2024:KHC:45783-DB RFA No. 1222 of 2010 C/W RFA No. 63 of 2012

Answer to the above points would be in the affirmative and negative respectively following reasons: Admittedly, the plaintiffs/appellants filed suit for bare injunction in O.S.No.5785/1995 on

27.08.1995. Along with the suit, the plaintiffs had also filed I.A.No.1 under 39 Rules 1 and 2 of CPC seeking injunction against the defendants not to interfere with their possession over the suit schedule property. The defendants had filed objections to the said application, though they failed to participate in further proceedings. Objections to the application for injunction was filed by the first defendant Smt. Sudha on 12.09.1995. At paragraph 2 of the objections, the defendant has stated that the alleged claim of the plaintiffs regarding ownership, possession and enjoyment of property as claimed by plaintiffs is put to strict proof. At paragraph 7 of the - 19 - NC: 2024:KHC:45783-DB RFA No. 1222 of 2010 C/W RFA No. 63 of 2012 objections, the defendants have contended as follows: “It respectfully submitted defendant is the owner of the property in her possession and enjoyment. She has purchased the same under registered sale

14.11.1994 Sri. Anjanappa and sale deed registered as No.2150/94-95. …………” The above averment of the defendants in the objections filed to I.A. filed for injunction clearly denies the title of the plaintiffs and the first defendant asserts her ownership over suit schedule property. When the first defendant asserts her title over the suit schedule property by denying the title of the plaintiffs, the suit of plaintiffs for mere injunction would not be maintainable. In that circumstance, the plaintiffs filed an application for amendment of plaint on 28.06.2006, after reopening the suit by setting aside ex-parte judgment and decree. The said application for amendment came to be rejected on 05.08.2006 with liberty to the - 20 - NC: 2024:KHC:45783-DB RFA No. 1222 of 2010 C/W RFA No. 63 of 2012 plaintiffs to file fresh suit. Admittedly, fresh suit in O.S.No.9742/2006 with a prayer for declaration of title was filed on 09.11.2006. The contention of the learned counsel for the appellants that limitation for filing suit for declaration would commence on the date of filing application for amendment i.e., on

28.06.2006 cannot be accepted on the face of objection denying title of the plaintiffs filed by defendants on 12.09.1995.

There is no dispute with regard to application of Article 58 of Limitation Act to the prayer of declaration in O.S.No.9742/2006. Article 58 makes it clear that, to obtain any other declaration, limitation would be 3 years which would commence from the date, when right to sue first accrues. In the instant case, on analyzing the suit averments, we could safely come to the conclusion that right to sue first accrued to the plaintiffs on 12.09.1995, the date, on which the first defendant filed her - 21 - NC: 2024:KHC:45783-DB RFA No. 1222 of 2010 C/W RFA No. 63 of 2012 objections to I.A.No.1 for injunction. Therefore, the suit for declaration filed on 09.11.2006 is clearly barred by time. The trial Court is justified in dismissing the suit on the question of limitation. In that regard, decision of the Honb'le Supreme Court in KHATRI HOTELS PVT. LTD. AND ANOTHER (supra) and L.C.HANUMANTHAPPA (supra) would support the contention of the defendants.

O.S.No.9742/2006 filed on 09.11.2006 with the prayer for declaration that the plaintiffs are the absolute owners in respect of the property detailed in schedule to the plaint and for permanent injunction, restraining the defendant, her agents, servants or anybody acting through her, in any way interfering with the peaceful possession and enjoyment of the suit schedule property. Issue No.2 in O.S.No.9742/2006 reads as follows: “Does the plaintiffs prove that they were in lawful possession of the suit schedule property as on the date of suit? - 22 - NC: 2024:KHC:45783-DB RFA No. 1222 of 2010 C/W RFA No. 63 of 2012

The said issue is held in the negative and the trial Court has rightly come to the conclusion that the plaintiffs were not in possession when the defendants specifically denied the title of plaintiffs and when the defendants asserted their ownership over the suit schedule property as well as possession it was incumbent upon the plaintiffs to add prayer for possession along with declaration. In a suit for possession, unless the possession is sought, mere suit for declaration would not be maintainable as held by the Honb'le Supreme Court in ANATHULLA SUDHAKAR case (supra). Relevant paragraph 11 reads as follows: “11. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly. - 23 - NC: 2024:KHC:45783-DB RFA No. 1222 of 2010 C/W RFA No. 63 of 2012

1.1 Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.

11.2 Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.

11.3 Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff - 24 - NC: 2024:KHC:45783-DB RFA No. 1222 of 2010 C/W RFA No. 63 of 2012 will have to file a suit for declaration, possession and injunction.”