# SHIVSHANKARA & ANR v. H.P. VEDAVYASA CHAR

- **Citation:** [2023] 6 S.C.R. 359
- **Court:** Supreme Court of India
- **Decided:** 2023-03-29
- **Case number:** Civil Appeal No. 10215 of 2011
- **Bench:** B. R. Gavai, C. T. Ravikumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shivshankara-anr-v-h-p-vedavyasa-char-37191
- **Pages:** 33

## Headnote

Abatement: Abatement of suit - Non-joinder of necessary
parties - Non-impleadment of all other legal heirs of deceased
defendant - Effect of - Held: In the event of death of one of the
defendants, when the estate/interest was being fully and substantially
represented in the suit jointly by the other defendants along with
deceased defendant and when they are also his legal representatives,
by reason of non-impleadment of all other legal heirs consequential
to the death of the said defendant, the suit would not abate - Such
suit not bad for non-joinder of necessary parties of all his legal
heirs/representatives.
Amendment: Amendment of pleadings at appellate stage -
Permissibility of - Held: While dealing with such prayers, the Courts
should avoid hyper technical approach - Circumstances attending
to the particular case are to be taken into account to allow or not to
allow such prayer - It is allowable only in rarest of rare
circumstances - It cannot be granted on the mere request, especially
at the appellate stage - On facts, trial court allowed the amendment
of the plaint, and the defendants were given multiple opportunities
to file an additional written statement, which they did not avail and
the suit was decreed - Subsequent developments culminated in the
impugned judgment wherein the High Court declined permission to
amend the written statement to the defendants - High Court
observed that grant of amendment of written statement, if at that
stage would have necessitated framing of fresh issues and de novo
trial - Thus, no perversity or illegality with the rejection of the prayer
for amendment of the written statement.
Suit: Suit for possession, based on possessory title - Facts
disclosing no title in either party at the relevant time - Prior
possession - Relevance of - Held: In such circumstances, when the
facts disclose no title in either party, at the relevant time, prior
[2023] 6 S.C.R. 359
359
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possession alone decides the right to possession of land in the
assumed character of owner against all the world except against
the rightful owner.
Suit: Suit for injunction and for recovery of possession by
respondent against the appellants - Maintainability of - Held: On
a careful consideration of the available pleadings of the appellants,
the High Court held that they did not disclose their defence in their
written statement and at the same time did not even contend that
they are in possession of the suit property - Thus, the High Court
correct in holding the question of maintainability of the suit in the
affirmative and in favour of the respondent - Trial court after
carefully considering the evidence on record held that the respondent
is entitled to get back the possession of suit schedule property from
which he was dispossessed - After careful consideration of the
additional evidence recorded and transmitted to the High Court by
the trial court and considering all contentions and aspects, the High
Court only confirmed the judgment and decree of the trial court -
Thus, when the concurrent findings of the courts below are the
outcome of the rightful consideration and appreciation of materials
on record, they do not call for any interference.
Transfer of Property Act, 1882: s. 52 - Transfer of property
pending suit relating thereto - Doctrine of Lis pendens - Held:
Import of s. 52 is that if there is any transfer of right in immovable
property during the pendency of a suit such transfer will be non est
in the eye of law if it will adversely affect the interest of the other
party to the suit in the property concerned - Wherever TP Act is not
applicable, such principle in the said provision of the Act, based on
justice, equity and good conscience is applicable in a given similar
circumstance, like Court sale etc - On facts, the suit from which the
appeal arises was one based on possessory title, the legality of sale
deed need not be gone into in this appeal and rightly has

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SHIVSHANKARA & ANR.
v.
H.P. VEDAVYASA CHAR
(Civil Appeal No. 10215 of 2011)
MARCH 29, 2023
[B. R. GAVAI AND C. T. RAVIKUMAR, JJ.]
Abatement: Abatement of suit - Non-joinder of necessary
parties - Non-impleadment of all other legal heirs of deceased
defendant - Effect of - Held: In the event of death of one of the
defendants, when the estate/interest was being fully and substantially
represented in the suit jointly by the other defendants along with
deceased defendant and when they are also his legal representatives,
by reason of non-impleadment of all other legal heirs consequential
to the death of the said defendant, the suit would not abate - Such
suit not bad for non-joinder of necessary parties of all his legal
heirs/representatives.
Amendment: Amendment of pleadings at appellate stage -
Permissibility of - Held: While dealing with such prayers, the Courts
should avoid hyper technical approach - Circumstances attending
to the particular case are to be taken into account to allow or not to
allow such prayer - It is allowable only in rarest of rare
circumstances - It cannot be granted on the mere request, especially
at the appellate stage - On facts, trial court allowed the amendment
of the plaint, and the defendants were given multiple opportunities
to file an additional written statement, which they did not avail and
the suit was decreed - Subsequent developments culminated in the
impugned judgment wherein the High Court declined permission to
amend the written statement to the defendants - High Court
observed that grant of amendment of written statement, if at that
stage would have necessitated framing of fresh issues and de novo
trial - Thus, no perversity or illegality with the rejection of the prayer
for amendment of the written statement.
Suit: Suit for possession, based on possessory title - Facts
disclosing no title in either party at the relevant time - Prior
possession - Relevance of - Held: In such circumstances, when the
facts disclose no title in either party, at the relevant time, prior
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possession alone decides the right to possession of land in the
assumed character of owner against all the world except against
the rightful owner.
Suit: Suit for injunction and for recovery of possession by
respondent against the appellants - Maintainability of - Held: On
a careful consideration of the available pleadings of the appellants,
the High Court held that they did not disclose their defence in their
written statement and at the same time did not even contend that
they are in possession of the suit property - Thus, the High Court
correct in holding the question of maintainability of the suit in the
affirmative and in favour of the respondent - Trial court after
carefully considering the evidence on record held that the respondent
is entitled to get back the possession of suit schedule property from
which he was dispossessed - After careful consideration of the
additional evidence recorded and transmitted to the High Court by
the trial court and considering all contentions and aspects, the High
Court only confirmed the judgment and decree of the trial court -
Thus, when the concurrent findings of the courts below are the
outcome of the rightful consideration and appreciation of materials
on record, they do not call for any interference.
Transfer of Property Act, 1882: s. 52 - Transfer of property
pending suit relating thereto - Doctrine of Lis pendens - Held:
Import of s. 52 is that if there is any transfer of right in immovable
property during the pendency of a suit such transfer will be non est
in the eye of law if it will adversely affect the interest of the other
party to the suit in the property concerned - Wherever TP Act is not
applicable, such principle in the said provision of the Act, based on
justice, equity and good conscience is applicable in a given similar
circumstance, like Court sale etc - On facts, the suit from which the
appeal arises was one based on possessory title, the legality of sale
deed need not be gone into in this appeal and rightly has not been
gone into by the High Court - High Court declined to act upon the
same, in the light of the doctrine of lis pendens.
Pleadings: Proof offered without pleadings - Relevance of -
On facts, claim for possession/ownership over the suit property by
the defendants - Original defendants failed to raise sufficient and
appropriate pleadings in the written statement that they have better
right for possession of the suit properties - No amount of proof
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offered without appropriate pleadings would have any relevance -
Finding of the High Court that any volume of evidence sans
appropriate pleadings would be of no avail is correct.
Dismissing the appeal, the Court
HELD: 1.1 There can be no doubt with respect to the
settled position that the Court to which the case is remanded has
to comply with the order of remand and acting contrary to the
order of remand is contrary to law. In other words, an order of
remand has to be followed in its true spirit. [Para 7][372-H; 373A]
1.2. In dealing with prayers for amendment of the pleadings
the Courts should avoid hyper technical approach. But at the
same time, the Court should keep reminded of the position that
the same cannot be granted on the mere request through an
application for amendment of the written statement, especially at
the appellate stage where what is called in question is the judgment
and decree passed by the trial court and in other words, after the
adverse decree and without a genuine, sustainable reason. The
circumstances attending to the particular case are to be taken
into account to consider whether such a prayer is allowable or
not and no doubt, it is allowable only in rarest of rare
circumstances. In the case on hand, prayer to amend the plaint
was allowed by the trial court. Accordingly, the amendment was
carried out by the plaintiff. Indisputably, thereafter, during the
span of one year or thereabouts more than eight opportunities
were given to the defendants therein to file additional written
statement, if any. Indubitably, the materials on record would reveal
that the opportunities were not availed and no additional written
statement was filed. Thereafter, based on the pleadings, issues
were framed. Obviously, the defendants did not adduce any
evidence for the reasons best known to them. The suit came to
be decreed thereafter. All the subsequent developments which
ultimately culminated in the impugned judgment is discussed.
Evidently the High Court observed that if the amendment of
written statement was allowed at that stage, it would have
necessitated framing of fresh issues and parties were to agitate
their rights as if in a de novo trial. In the circumstances thus
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revealed from the materials on record and when such aspects
and evidence were taken into account by the High Court to decline
permission to amend the written statement, there is no reason
or justification to interfere with it. [Para 14 & 15][377-A-E; 378D-E; 379-B-E]
1.3. In the wake of the admission by DW-1, the attempt to
bring in new plea by amending the written statement that the
second defendant (the deceased second appellant) had purchased
the suit schedule property as per the sale deed dated 05.10.2000
has to be seen. Since admittedly and indisputably the suit from
which the appeal arises was one based on possessory title, the
legality of the sale deed need not be gone into in this appeal and
rightly has not been gone into by the High Court. Evidently, the
High Court declined to act upon the same, in the light of the
doctrine of lis pendens. Even if it is taken for granted that the
provisions under Section 52 of the Transfer of Property Act are
not applicable as such in the case on hand it cannot be disputed
that the principle contained in the provision is applicable in the
case on hand. It is a well-nigh settled position that wherever TP
Act is not applicable, such principle in the said provision, which
is based on justice, equity and good conscience is applicable in a
given similar circumstance, like Court sale etc. Transfer of
possession pendente lite will also be transfer of property within
the meaning of Section 52 and, therefore, the import of Section
52 is that if there is any transfer of right in immovable property
during the pendency of a suit such transfer will be non est in the
eye of law if it will adversely affect the interest of the other party
to the suit in the property concerned. The effect of Section 52 is
that the right of the successful party in the litigation in regard to
that property would not be affected by the alienation, but it does
not mean that as against the transferor the transaction is invalid".
[Para 16][379-D-H; 380-A]
1.4. The prohibition by application of the principles of the
doctrine of lis pendens would take its effect with the institution
of the suit. There is no hesitation to hold that the High Court was
perfectly justified in the circumstances, to come to the conclusion,
while considering the application for amendment of the written
statement filed at the appellate stage, that granting the same
would have, in effect, necessitated framing of fresh issues and
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constrained the parties to agitate their rights as if in a de novo
trial. The aspects is referred solely to drive home the point that
since the subject suit is based only on possessory title viz., on
the basis of prior possession the finding and consequential
rejection of the prayer for amendment of written statement to
bring in the plea of purchase of the property pending the suit by
the deceased second appellant cannot be said to be ground
resulting in grave injustice. [Para 16][380-B-D]
1.5. There was considerable delay in seeking amendment
of the written statement or filing additional written statement and
no sustainable reason was assigned as to why such prayers were
not sought in the trial court while the original proceedings were
pending before it. It is also relevant to note that such prayers
were also not made before the High Court when the High Court
initially disposed of RFA and also before this Court in the Civil
Appeal against the said judgment. The impact and effect of the
order of remand passed by this Court assumes great relevance.
If the judgment of the High Court was not modified by this Court
as per judgment in the Civil Appeal, it would have had the effect
of reviving the suit in full and in such eventuality, the suit should
have been deemed to be pending. [Para 20, 21][382-A-D]
1.6. In view of the subsequent judgment of this Court in
the said Civil Appeal directed against the order of remand in
RFA, the judgment of the High Court got merged in it. As per
the same, the scope of proceedings before the trial court was
confined only to record the additional evidence of defendants and
to transmit the same to the High Court so as to enable the High
Court to dispose of the RFA afresh. The trial court could not
have expanded the scope of the proceedings before it contrary
to the order of remand and hence, the trial court was perfectly
correct in rejecting the application for amending the written
statement [Para 22][383-A-C]
1.7. In the totality of the circumstances, taking into account
the relevant reasons assigned by the High Court for disallowing
the prayer for amendment of the written statement and taking
note of the delay and the failure to offer any reason therefor and
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the reasons mentioned there is no perversity or illegality with
the rejection of the prayer for amendment of the written statement.
On the questions as to maintainability of the suit, whether the
suit is bad for non-joinder of necessary parties as also whether
the suit ought to have been held as abated against all the
defendants for non-substitution of all the legal heirs on the death
of the original third defendant, the courts below returned
concurrent findings against the appellants. [Para 23, 24][383-FH; 384-A]
1.8 It cannot be understood as to how the plea regarding
the maintainability of the suit arise for consideration. The
contention of the appellants is that it was filed under section 6 of
the Specific Relief Act and while disposing of the Civil Appeal,
this Court held against the respondent/ the plaintiff that the suit
is not one under Section 6 of the Specific Relief Act. Ergo,
according to the appellants, the relief claimed for possession by
the plaintiff/the respondent was not entertainable as he being a
person claiming only possessory title and the original defendant
No. 2/ the deceased appellant No. 2 being the lawful owner of the
suit schedule property. Though the contentions appear to be
attractive and acceptable at the first blush the fact is that they
are absolutely untenable and rightly held against them, in view of
the materials on record. It is true that the respondent/ the plaintiff
had a case that O.S. No. 6456 of 1993 filed under Section 6 of the
Specific Relief Act and even after, the judgment in the Civil Appeal
he seems to have attempted to resurrect the said question. But
this Court is entirely in agreement with the High Court that the
question whether the suit is one under Section 6 of the Specific
Relief Act is not now available for consideration as it was held
otherwise by this Court in the judgment in the Civil Appeal and
as such it had attained finality. On the face of judgment in the
Civil Appeal the conclusion that O.S. No. 6456 of 1993 is not one
under Section 6 of the Specific Relief Act is not revisitable.
Evidently, even-after holding thus and upon modifying the
judgment of the High Court, this Court directed only for fresh
disposal of the RFA and in that regard the trial court was directed
to record the additional evidence of the defendants and to transmit
the same to the High Court along with a report. [Para 25, 26][384B-G]
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1.9 It is evident that on a careful consideration of the
available pleadings of the defendants, the High Court held that
they did not disclose their defence in their written statement and
at the same time did not even contend therein that they are in
possession of the suit property. In such circumstances, when the
facts disclose no title in either party, at the relevant time, prior
possession alone decides the right to possession of land in the
assumed character of owner against all the world except against
the rightful owner. In that context, it is worthy to refer to the
maxim "Possessio contra omnes valetpraeter eur cui ius sit
possessionis' (he that hath possession hath right against all but
him that hath the very right)". The High Court is correct in holding
the question of maintainability of the suit in the affirmative and in
favour of the respondent herein. [Para 30 & 31][386-C-E, F]
1.10 As regards the abatement the question whether the
suit ought to have been held as abated against all the defendants
as contended by the appellants for non-substitution and owing to
the failure to implead all the legal representatives on the death
of the original third defendant. The contention that the suit is
bad for non-joinder of necessary parties is also raised based on
the same reason. Hence, these questions are to be considered
jointly. Obviously, the courts below declined to uphold the said
contentions of the defendants. It is to be noted that the appellants
have also raised a contention that SMS which is an organization
and SVR ought to have been impleaded as parties to the suit and
in view of their non impleadment, the suit is bad for non-joinder
of necessary parties. When that be the position and when the
subject suit is one based on prior possession the appellants are
not justified in contending that the suit is bad for non-joinder of
SM Sangha and SVR. [Para 32][386-F-H; 387-A, D]
1.11 The appellants have also contended that the suit ought
to have been held as abated against all the defendants owing to
non-substitution of all the legal representatives of the deceased
defendant No. 3 upon his death. This contention is bereft of any
basis and merits and was rightly repelled by the courts below. In
that regard it is to be noted that the first appellant and deceased
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second appellant as also their father were all arrayed in the suit
as defendants and they were jointly defending the suit. Upon the
death of original third defendant, the original defendants No.1
and 2, who are sons of the original defendant No.3 fully and
substantially representing the joint interest contested the suit
and, thereafter, after suffering an adverse judgment and decree
in the suit diligently preferred the appeal before the High Court
which ultimately culminated in the impugned judgment and
decree. Even thereafter, obviously they are diligently prosecuting
the joint interest, even if the contention of joint interest is taken
as correct, by filing the captioned appeal. [Para 33][387-E-H]
1.12 The same analogy is applicable in a case where even
in the event of death of one of the defendants, when the estate/
interest was being fully and substantially represented in the suit
jointly by the other defendants along with deceased defendant
and when they are also his legal representatives. In such cases,
by reason of non-impleadment of all other legal heirs
consequential to the death of the said defendant, the defendants
could not be heard to contend that the suit should stand abated
on account of non-substitution of all the other legal
representatives of the deceased defendant. In this case, it is to
be noted that along with the deceased 3rd defendant the original
defendant Nos. 1 and 2 were jointly defending their joint interest.
Taking into account the fact that the appellants/ the original
defendants No. 1 and 2 despite the death of original defendant
No.3 defended the suit and preferred and prosecuted the first
appeal. Upon the death of the second appellant the joint interest
is being fully and substantially taken forward in this proceeding
as well by the first appellant along with the substituted legal
representatives of the deceased second appellant, there is no
reason to disagree with the conclusions and findings of the courts
below for rejecting the contention that suit ought to have held
abated owing to the non-substitution of all the legal heirs of
deceased third defendant against all defendants. For the same
reason, the submission that the suit was bad for non-joinder of
necessary parties of all his legal heirs/representatives also fails.
[Para 36][389-A-E]
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1.13 There is yet another reason why the contention that
suit was bad for non-joinder of necessary parties due to failure to
bring on record the legal representatives of the deceased third
defendant should fail. Relying on Exhibit D-1 it is contended that
pursuant to the agreement for sale of the suit schedule property
executed in favour of the first appellant/ the first defendant jointly
by SMS and SVR its possession was handed over to the first
appellant. Its rejection by the High Court is upheld. However,
what is being taken out of the said contention is that based on
the same the appellants cannot raise a ground of non-joinder of
necessary parties, as the first appellant was arrayed as a party in
the very suit itself and he being the person in favour of whom the
same was allegedly executed. The contention raised based on
Exhibit D-2 sale deed was also repelled by the High Court and is
upheld. The note is taken of the same again solely to stress upon
the position that the case built upon the same can in no way be
the basis for raising a contention of non-joinder of necessary party/
parties. This is because the deceased second appellant who was
shown as the vendee thereunder was the original second
defendant in the suit. For the reasons the contention of nonjoinder of necessary parties fails. [Para 37][389-E-H; 390-A-B]
1.14 The courts below are correct in holding that the
defendants did not have a case of ownership over the suit schedule
property and such a case sought to bring out based on Exhibit D2 was repelled by the High Court and the same is upheld. They
have also failed to establish any better claim for possession. The
finding of the High Court that any volume of evidence sans
appropriate pleadings would be no avail is the correct exposition
of law. [Para 38][389-B-D]
1.15 In such circumstances, there is absolutely no
hesitation to hold that the original defendants failed to raise
sufficient and appropriate pleadings in the written statement that
they have better right for possession of the suit properties. No
amount of proof offered without appropriate pleadings would have
any relevance. The courts below have rightly relied on the
evidence of PW-5 to hold forceful dispossession of the defendants
from 'B' schedule property. Nothing is on record to uphold the
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said finding. As regard the issue whether the impugned judgment
is inflicted with perversity or any patent illegality warranting
interference in invocation of the power under Article 136 of the
Constitution of India. The sound reasons given by the courts
below persuade to answer it in the negative. After carefully
considering the evidence on record the trial court arrived at the
conclusion that the respondent/ the plaintiff is entitled to get back
the possession of suit schedule property from which he was
dispossessed and even after careful consideration of the
additional evidence recorded and transmitted to the High Court
by the trial court and considering all contentions and aspects the
High Court only confirmed the judgment and decree of the trial
court. When the concurrent findings of the courts below are the
outcome of the rightful consideration and appreciation of materials
on record they do not call for any interference. Taking into account
the fact that the suit was indisputably filed based on prior
permission and illegal dispossession there is no reason to place
sale deed executed (even if by the owners) in favour of the
deceased second appellant to displace the concurrent findings of
the courts below on the entitlement of the respondent/the plaintiff
for a decree as granted by the trial court and confirmed by the
High Court. [Para 39, 40, 41][390-G; 391-A-F]
Thomson Press (India) Ltd. v. Nanak Builders and
Investors Private Limited (2013) 5 SCC 397 : [2013] 2
SCR 74; Gayathri Women's Welfare Association v.
Gowramma And Anr. (2011) 2 SCC 330 : [2011] 2 SCR
47; Pandit Ishwardas v. State of Madhya Pradesh And
Ors. (1979) 4 SCC 163 : [1979] 2 SCR 424; United
Bank of India, Calcutta v. Abhijit Tea Co. (P) Ltd. &
Ors. (2000) 7 SCC 357 : [2000] 3 Suppl. SCR 153;
Rukhmanand v. Deenbandh 1971 JLJ SN 159; Krishna
Ram Mahale (Dead), By LRs v. Mrs. Shobha Venkat
Rao (1989) 4 SCC 131; Nair Service Society Ltd v. Rev.
Father K. C. Alexander & Ors. AIR 1968 SC 1165 :
[1968] SCR 163; Mustapha Saheb v. Santha Pillai
(1900) ILR 23 Mad 179; Bhurey Khan v. Yaseen Khan
(Dead) By LRs. And Ors. (1995) 3 Supp. SCC 331; State
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of Andhra Pradesh through Principal Secretary and
Ors. v. Pratap Karan and Ors. (2016) 2 SCC 82 : [2015]
12 SCR 702; Duggi Veera Venkata Gopala
Satyanarayana v. Sakala Veera Raghavaiah and Anr.
(1987) 1 SCC 254 : [1987] 1 SCR 674; Hasmat Rai &
Anr. v. Raghunath Prasad (1981) 3 SCC 103 : [1981] 3
SCR 605; Union of India v. Ibrahim Uddin and Anr.
(2012) 8 SCC 148 : [2012] 8 SCR 35 - referred to.
R.F.V. Heuston, Salmond on the Law of Torts 4 (17th
Edn., 1977) - referred to.
Case Law Reference
[2013] 2 SCR 74
referred to
Para 16
[2011] 2 SCR 47
referred to
Para 18, 19
[1979] 2 SCR 424
referred to
Para 18
[2000] 3 Suppl. SCR 153
referred to
Para 21
(1989) 4 SCC 131
referred to
Para 27
[1968] SCR 163
referred to
Para 27, 28
(1900) ILR 23 Mad 179
referred to
Para 28
(1995) 3 Supp. SCC 331
referred to
Para 34
[2015] 12 SCR 702
referred to
Para 35
[1987] 1 SCR 674
referred to
Para 38
[1981] 3 SCR 605
referred to
Para 38
[2012] 8 SCR 35
referred to
Para 38
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 10215
of 2011.
From the Judgment and Order dated 09.09.2010 of the High Court
of Karnataka at Bangalore in RFA No. 1966 of 2007.
Ms. Kiran Suri, Sr. Adv., T. S. Shanthi, Narendra Kumar, Sanjeev
Kumar, Advs. for the Appellants.
Narendra Hooda, Sr. Adv., Aljo K. Joseph, Shaurya Lamba,
Ms. Shelna K., Ritesh Kumar Chowdhary, Advs. for the Respondent.
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The Judgment of the Court was delivered by
C. T. RAVIKUMAR, J.
1. The defendant Nos. 1 and 2 in O.S. No.6456 of 1993 on the file
of the Court of XIV Additional City Civil Judge, Bangalore, filed this
appeal under Article 136 of the Constitution of India, calling in question
the judgment and decree dated 09.09.2010 passed by the Hon'ble High
Court of Karnataka at Bengaluru in RFA No.1966 of 2007. They are the
sons of the third defendant in the said suit, who died during its pendency.
They filed the stated first appeal on being aggrieved and dissatisfied
with the judgment and decree dated 04.07.2007 in O.S. No.6456 of 1993.
During the pendency of the captioned appeal, the second appellant
died and consequently his legal heirs were impleaded as additional
appellants 2.1 to 2.4. Ergo, in this appeal, hereafter the original first
appellant and the impleaded legal heirs of the deceased second appellant
are collectively described as 'appellants', unless otherwise specifically
mentioned. The respondent herein was the plaintiff in the said suit which
was filed originally praying thus: -
"to grant a judgment for decree of permanent injunction
restraining the first and second defendants either by themselves
or through anyone on their behalf from interfering in the
plaintiffs right, title and interest over and in the suit schedule
property including creating documents alienating the property
to others and award cost and grant such other relief (s) as
deemed fit and proper under the circumstances to the interest
of justice and equity."
2. The appellants herein filed written statement contending, inter
alia, that the subject suit is not maintainable, that there is no prayer for
possession, that the suit was not valued correctly and that the real owners
of the suit property was not arraigned as parties. Subsequently, the plaintiff
/respondent herein got amended the plaint by adding paragraph 9 (a),
schedules A, B and 'C' and also prayers qua them viz., prayer 'b'.
Compositely, the suit property, which is a house bearing No. B-91, has
been described as 'A schedule' and out of which a portion measuring
35' x 40', within the boundaries mentioned, has been described as 'B
schedule'. 'C schedule' is the portion of the premises bearing No. B-91
as described therein. To be precise, the prayers in the amended plaint
read as under: -
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"(a) a judgment and decree of perpetual injunction against
the defendants 1 to 3 directing the defendants to restore the
possession of the schedule premises to the plaintiff and not to
interfere in the plaintiffs' lawful possession and enjoyment of
the schedule property in any manner whatsoever.
(b) A judgment and decree against the defendants for
mandatory injunction directing the defendants to restore the
possession of the 'B' schedule property, which is marked
'ABCD' in the annexed sketch, and there may be decree for
permanent injunction against the defendants for 'CDEF'
portion which is marked as 'C' schedule to the plaint and
there may be a decree for the enquiry into the mesne profits
with Order XVIII Rule 12 of CPC, and also there may be a
decree for the cost of the suit, with such other relief or reliefs
as this Hon'ble Court deems fit in the circumstances of the
case.:
3. Obviously, the defendants did not challenge the order allowing
the amendment of the plaint and also did not file additional written
statement after the amendment.
4. The Trial Court framed the following issues based on the
pleadings on both sides:
1) Whether the suit is bad for mis-joinder or non-joinder of
necessary parties?
2) Whether the Court fee paid on the plaint is insufficient?
3) Whether the plaintiff is entitled for possession of the suit
schedule premises?
5. Though the plaintiff/respondent herein adduced oral and
documentary evidence in support of his claims, the defendant therein did
not lead any evidence, at all. The Trial Court, after considering the evidence
and the provisions of law applicable partly decreed the suit as per judgment
dated 04.07.2007, holding that the plaintiff/respondent herein, is entitled
to recover possession of suit 'B' schedule property from the defendants
and consequently directed the defendants to vacate and deliver suit 'B'
schedule property to the plaintiff (the respondent herein) within two
months from that day. Further, it was also decreed that the plaintiff would
be entitled to recover possession of 'B' schedule property from the
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defendants by due process of law in case of failure on the part of the
defendants to vacate and deliver the suit 'B' schedule property within
the period stipulated. Furthermore, the defendants were restrained by
perpetual injunction from interfering with the peaceful possession and
enjoyment of 'C' schedule property by the plaintiff.
6. As noted earlier, defendant No. 3 died during the pendency of
the suit. The surviving defendants viz., the original defendant Nos.1 and
2 challenged the judgment and decree dated 04.07.2007 of the trial Court
before the High Court in RFA No.1966 of 2007. In the said first appeal,
they filed an application under Order XLI Rule 27 of the Code of Civil
Procedure, 1908 (for short, the CPC') seeking permission to produce
additional evidence. Virtually, they did not adduce any evidence
whatsoever before the trial court. The respondent herein (the plaintiff)
objected to the maintainability of the appeal as the original suit viz.,
O.S. No.6456 of 1993 was filed under Section 6 of the Specific Relief
Act, 1963. The High Court dispelled the said objection and as per judgment
dated 29.10.2007 allowed the application for production of additional
evidence and remanded the matter to the trial Court for fresh disposal
after affording an opportunity to the defendants viz., the first appellant
herein and the deceased second appellant to lead additional evidence.
The said judgment of the High Court dated 29.10.2007 was challenged
by the plaintiff/respondent herein before this Court in SLP (Civil) No.1279
of 2008 essentially, contending that the said suit being one filed under
Section 6 of the Specific Relief Act, the appeal filed before the High
Court being RFA No.1966 of 2007 was incompetent. Leave was granted
by this Court and the Civil Appeal arising from the SLP viz., Civil Appeal
No.5201 of 2009 was dispose of as per judgment dated 03.09.2009 holding
that O.S. No.6456 of 1993 was not one under Section 6 of the Specific
Relief Act, as the relief sought for did not fall within its scope. While,
virtually, remanding the matter thereunder to the High Court for fresh
disposal of the appeal the trial Court was directed to record the evidence
as directed by the High Court and to submit a report thereon to the High
Court to enable it to dispose of the appeal within the time stipulated.
7. Before proceeding with the matter further, we think it
appropriate to consider the impact of such an order of remand as it
would certainly deconvolute consideration of this appeal. There can be
no doubt with respect to the settled position that the Court to which the
case is remanded has to comply with the order of remand and acting
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contrary to the order of remand is contrary to law. In other words, an
order of remand has to be followed in its true spirit. True that in this
case the High Court, originally, as per judgment dated 29.10.2007
remanded the matter to the trial Court for fresh disposal and while doing
so, it also directed the trial Court to afford opportunity to the defendants
to lead evidence. But then, the same was modified by this Court and as
per the judgment in C.A. No.5201 of 2009 the matter was remanded to
the High Court for fresh disposal of RFA No.1996 of 2007 and the
further direction to the trial Court was only to record the evidence as
directed by the High Court and to forward it along with report to enable
the High Court to dispose of the appeal taking into account the additionally
recorded evidence of the defendants as well. Thus, it is evident that the
direction to the trial Court for recording the evidence and submitting it
along with report will not efface the evidence already on record or will
not be having the effect of setting aside of the judgment and decree
passed by the trial Court and indisputably, its purpose was only to enable
the High Court to consider RFA No.1996 of 2007 carrying challenge
against the judgment and decree of the trial Court in O.S. No.6456 of
1993, not only based on the evidence already considered by the trial
Court but also based on the additionally recorded evidence of the
defendants based on its judgment dated 29.10.2007.
8. Now, we will proceed with the matter further. In fact, in the
meanwhile, pursuant to the order of remand by the High Court the Trial
Court took up the matter and posted it for defendants' evidence. The
original defendant Nos. 1 and 2 (the first appellant herein and the deceased
second appellant) filed an application for amendment of the written
statement before the Trial Court. Besides the same, three more
applications were filed before the Trial Court viz., (1) seeking permission
to file additional written statement; (2) seeking permission to produce 8
documents; and (3) to recall PW-1. The Trial Court allowed only the
applications for permission to produce documents and to recall PW-1,
by order dated 13.11.2007. The plaintiff/respondent herein challenged
the same before the High Court in WP No. 18328 of 2007 and
consequently, the High Court stayed the said order dated 13.11.2007. It
was thereafter that Civil Appeal No. 5201 of 2009 was disposed of by
this Court in the manner mentioned above. Pursuant to this Court's order
dated 03.08.2009 the Trial Court took up the matter and posted it for
the evidence of the defendants. They filed I.A. No. 8 of 2009 seeking
permission to amend the written statement which came to be dismissed
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by the Trial Court. Thereafter, the second defendant filed affidavit in
lieu of chief examination and got marked Exhibits D-1 to D-9 and he
was also cross-examined. However, they did not examine any other
witnesses. Later, the Trial Court transmitted the recorded evidence to
the High Court along with its report.
8.1 Pursuant to the receipt of the report and recorded evidence
the High Court took up RFA No. 1966 of 2007. The defendants viz., the
appellants therein filed three interlocutory applications before the High
Court as hereunder:-
1) Misc. Civil Application No. 10400/2010 under Order 41 Rule
2 read with Section 151 CPC to raise additional grounds 16A
and l6B in the Appeal.
2) Misc. Civil Application No. 11451/2010 under Order 41 Rule
2 read with Section 151 CPC to raise additional grounds 16C
and 16D in the appeal.
3) Misc. Civil Application No.11452/2010 under Order 6 Rule 17
read with 151 CPC for amendment of written statement.
8.2 Misc. Civil Application No. 10400/2010 to raise additional
grounds was allowed on consent. However, the other two applications
were vehemently opposed. After hearing the parties on the main appeal
as also on the other two applications referred above, the Hon'ble High
Court formulated the following points for consideration: -
(i) "Whether
the
application Misc.Civil.No.11452 /
2010 filed by the appellants under Order VI Rule 17 read
with Section 151 of the Code of Civil Procedure seeking
amendment of the written statement to incorporate
paragraphs 26(b) to 26(e) deserves to be allowed or
rejected?"
(ii) Whether the application Misc. Civil No.11451/2010 filed
under 41 Rule 2 r/w Section 151 of the Code of Civil
Procedure by the appellants to raise additional grounds
in this appeal as ground No. l6C & 16D is to be allowed
or dismissed?"
(iii)Whether the suit as brought is maintainable or not?
(iv) Whether the suit is bad for non-joinder of necessary
parties?
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(v) Whether the judgment and decree passed by the XIV Addl.
City Civil Court in O.S. No.6456/1993 dated 4-7-2007 is
to be reversed, confirmed or modified?
(vi) What order?"
9. After elaborately considering the contentions, the evidence
adduced by both sides with reference to the rival pleadings, the High
Court answered the points formulated against the appellants herein and
in favour of the respondent herein. Misc. Application Nos. 11451 of
2010 and 11452 of 2010, seeking respectively amendment of the written
statement and permission to raise additional grounds viz., ground No.16
(c) and 16(d), were dismissed. Point No.3 in regard to the maintainability
of the suit raised by the appellants therein was rejected and suit was
held as maintainable. On the question whether the suit is bad for nonjoinder of necessary parties viz. point No.4, it was held in the negative.
Based on conclusions and findings on the points formulated it was held
that the respondent herein/the plaintiff is entitled to the judgment and
decree as decreed by the Trial Court and consequently the appeal was
dismissed with cost and the judgement and decree of the Trial Court was
confirmed. Hence, this appeal.
10.Heard, Ms. Kiran Suri, learned Senior Counsel for the appellants
and Mr. Narender Hooda, learned Senior Counsel for the respondent.
11. The appellants have raised multiple grounds to assail the
judgment of the High Court. It is contended inter alia that the plaintiff/
the respondent herein had failed to establish his possession over plaint
'B' schedule property. That apart, it is contended that the High Court
had failed to consider the contention that the subject suit was actually
abated owing to the failure of the respondent herein/the plaintiff to bring
on record the legal representatives of Sri Hanumaiah, the third respondent
who breathed his last during the pendency of the subject suit. It is their
further contention that Sri Rama @ Ramamurthy, the deceased second
defendant had purchased the suit property from Sriman Madhwa Sangha
which is an organisation and Sri Vittal Rao as per sale deed executed on
05.10.2000 jointly by the latter and the authorised representative of the
former organisation and therefore, the High Court ought not to have
confirmed the judgment and decree of the trial Court.
12. We have already taken note of the fact that the Misc. Civil
Application carrying the prayers for amendment of the written statement
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by incorporating paragraphs 26 (b) to 26 (e) and for raising additional
grounds in the appeal were dismissed by the High Court. The points
formulated qua those prayers were jointly considered by the High Court
owing to the interlacement of the relevant facts.