H.R. Harsha and Others vs Sri C. Shankara and Others

N. Kumar, J.—This is a plaintiffs'' appeal challenging that portion of the judgment and decree passed by the trial Court where the relief of possession and mandatory injunction is declined by the trial Court.

For the purpose of convenience, parties are referred as they are referred to in the original suit.

The subject matter of the suit is property bearing old Municipal No. 54, New No. 77, situate on Srinivasa Mandiram Road (Balepet Main Road), Balepet, Bangalore, which is more particularly described in the schedule to the plaint and hereinafter referred to as ''schedule property''.

One B.C. Suryanarayana Shastry was the owner of schedule property. He had five sons by name B.C. Ramaswamy, B.C. Chandrashekhar, B.C. Srinivasamurthy, B.C. Krishnaswamy and B.C. Nanjundaiah. Now, all are dead. The said B.C. Suryanarayana Shastry owned several properties including schedule property. During the year 1943, he effected a partition between himself and his sons under a deed of partition dated 14.07.1943, which was duly registered. B.C. Nanjundaiah, the youngest son of B.C. Suryanarayana Shastry was mentally under developed and retarded and he was virtually a grown up child and completely unable to understand the worldly affairs. He died in the year 1980. From the beginning, he required care and protection of both person and property by some body else. During the aforesaid period, schedule property was allotted to his share with a specific condition that the schedule property belonged to the joint family and it is for his prospective and B.C. Nanjundaiah is not entitled to alienate the schedule property to outsiders, without the consent: of all his family members. B C. Nanjundiah being virtually a grown up child required some body to look after himself and his property, because of his mental condition he was not married. B.C. Krishnaswamy took charge of looking after B.C. Nanjundaiah both in regard to his person and property with the consent of all the family members. D.C. Krishnaswamy took care of him and in the course of time, he hatched a scheme to benefit himself. He made B.C. Nanjundaiah to execute a deed of settlement dated 03.06.1971 in favour of B.C. Krishnaswamy''s sons, contrary to the conditions stipulated in the partition deed. Later on the sons of B.C. Krishnaswamy executed a lease deed in favour of defendants 5 to 7. by which defendants 5 to 7 look possession of schedule properly for a long lease. The benefit of such transaction was taken by B.C. Krishnaswamy and his sons. The condition in the partition deed was circumvented. What could not be achieved directly was sought to be done indirectly by employing an ingenious method. R.S. Marsha, who is one of the plaintiffs came to know of this scheme and challenged the scheme of B.C. Krishnaswamy by filing O.S. No. 1901/1976. on the file of 1 Munsiff. Bangalore for necessary reliefs. B.C. Nanjundaiah died some where in the year 1980. On his death, the other brothers and their legal representatives were brought on record and each one of them was entitled to 1/4th share in schedule property. The suit filed by R.S. Marsha was ultimately decreed and the decree passed by the trial Court was confirmed by the High Court in R.S.A. No. 296/1984. Similarly B.C. Srinivasamurty s/o. Suryanarayana Shastry also filed a suit in O.S. No. 3632/1980, on the file of the City Civil Judge, Bangalore, against B.C. Krishnaswamy and defendants 1 to 4 and obtained a decree to the effect that the settlement deed dated 03.06.1971 stated to have been obtained by late B.C. Krishnaswamy and his sons from late B.C. Nanjundaiah is not binding on them. It is submitted further that in view of the same, the lease deed dated 20.08.1979, entered into by defendants 1 to 4 and lake B.C. Krishnaswamy with defendants 5 to 7 is during pendency of the suit filed by the plaintiffs 1 to 4 in O.S. NO. 1901/1976 and therefore hit by the doctrine of lis pendence. The plaintiffs are not parties to the said lease deed and have not given any consent for the said lease deed, in favour of defendants 5 to 7. It is under these circumstances, it defendants 5 to 7 have put up any construction on the plaint schedule property after demolishing the old structure, the same is subject to the decision passed in the decrees in O.S. No. 1901/1976 and O.S. No. 3632/1980 and therefore, the plaintiffs can exercise their right to seek the relief of mandatory injunction for demolition of any structure on the plaint schedule property as a consequential relief. The settlement deed and lease granted to Aswathanarayana Setty do not exist in the eye of law. The plaintiffs are entitled to a share in the schedule property as B.C. Nanjundaiah did not marry and as such no other heirs except his brothers sons, schedule property reverted to the family members. The plaintiffs herein and defendants 1 to 4 are in possesion of schedule property. Therefore, they sought for a judgment and decree against defendants, declaring that plaintiffs 1 to 12 are entitled to 1/4th share in the schedule property and partition and separate possession of their shares. The plaint was subsequently amended. Consequently, the prayer column was also amended for mandatory injunction.

After service of summons, defendants 1, 2 & 4 filed a joint statement. They admitted the relationship between parties. They admitted registered partition deed dated 14.07.1943. However, they denied that B.C. Nanjundaiah was mentally underdeveloped and retarded and that virtually a grown up child who could not understand worldly affairs. He died in the year 1980. They denied that B.C. Nanjundiah was incapable of managing the properties and understand the worldly affairs. It is their specific case that he was a bachelor and was not inclined to attend to exhaustive or cumbersive activities. Since the members of the family decided that the share of the properties allotted to B.C. Nanjundaiah should not remain unattended, they decided to appoint a family member to look after the properties. B.C. Nanjundaiah was capable of understanding and executing the documents. They admitted that in the partition, there is a recital to the effect that schedule property shall not be alienated by B.C. Nanjundaiah to outsiders, without the consent of other family members. In this context, it was stated since B.C. Nanjundaiah was a bachelor and did not intend to get married, the family members intended that the properties during or after the life time of B.C. Nanjundaiah should be transferred to one of the family members and not an outsider. It is absolutely false and baseless to allege that B.C. Krishnaswamy in the course of time hatched a scheme to get himself benefited. The deed of settlement dated 03.06.1971 executed by B.C. Nanjundaiah in favour of B.C. Krishnaswamy''s sons was voluntary and without any compulsion or force. Hence, then is a valid transfer of title. It is not true that the property has been leased to defendant No. 2. There is no intention of B.C. Krishnaswamy to circumvent the condition in the partition deed. Filing of the suit by R.S. Harsha, finally concluded in R.S.A. No. 296/1984 is admitted. It is false and untenable to submit that by virtue of said proceedings, the schedule property remained in the family itself and plaintiffs became entitled to a share in the manner indicated therein in accordance with law. It is untenable to allege that the lease does not exist in the eye of law. The fact that the sons of B.C. Krishnaswamy entered into actual possession of schedule property by virtue of the settlement deed cannot be disputed. Even prior to it, after partition in the year 1943, the property was severed in status and remained in the exclusive possession of B.C. Nanjundaiah during his lifetime. The plaintiffs nor their forefathers were in possession of the properties since 1943. Hence, the allegation that in the plaint regarding joint possession is false and baseless. Presently, there is a building constructed on the said property and each of the portions is in actual possession of a tenant. The plaintiffs ought to have valued the suit property as per the market value and paid appropriate Court fee thereon. Therefore, they sought for dismissal of the suit.

After amendment to the plaint, defendants 1, 2 & 4 have filed additional written statement, contending that the plaintiffs have no locus standi to seek mandatory injunction by way of amendment The said prayer has no basis in the pleadings and further pre-existing condition prior to the date of the suit cannot be challenged by issuing mandatory injunction. There is no cause of action for the said relief. The relief of mandatory injunction in addition to being baseless and untenable is hopelessly barred by law of limitation. Therefore, the relief of mandatory injunction cannot be granted.

The 5th defendant has filed his written statement. He contended that the plaintiffs have not sought for any relief against this defendant and therefore as against the 5th defendant the suit is liable to be dismissed. The plaintiffs are not at all in possession of schedule property. The plaintiffs have filed the suit as if they are in joint possession of the property. The schedule property in turn is in possession and enjoyment of defendants. In turn the defendants have let out the property in favour of various tenants. This fact is very well within the knowledge of the plaintiffs. The plaintiffs have also filed an application to implead the tenants under defendants 5, 6 & 7 in the above suit. This itself suffice to show that the plaintiffs are not at all in possession of schedule property. Therefore, the plaintiffs have to pay Court fee u/s 35(1) of the Karnataka Court Fees and Suits Valuation Act, 1958. The sons of B.C. Krishnaswamy executed deed of lease in favour of defendants 1 & 2 and accordingly defendants 5 to 7 have taken possession of schedule property on long lease for a period of 32 � years under registered lease dated 20.08.1979. The lease deed came to be executed by B.C. Krishnaswamy s/o. late Suryanarayana Shastry, K. Shankar s/o. B.C. Krishnaswamy and C. Vasu s/o. B.C. Krishnaswamy in favour of defendants 5 to 7 and the period of lease is 32� years from 05.09.1979. The quantum of rent is Rs. 1,500/- per month. According to the terms and conditions, defendants 5 to 7 have to demolish the existing structure, and construct a new building. The property was in occupation of the tenants and defendants 5 to 7 got vacated the same. Thereafter, defendants 5 to 7 demolished the building and put up structure on their cost.

According to terms of the lease, defendants 5 to 7 have constructed the building in the schedule property. Defendants 5 to 7 are entitled to receive the rent in respect of the building on the schedule property and accordingly they have been receiving the rents. Defendants 5 to 7 are entitled to sublet and mortgage their interest either in full or part. Defendants 5 to 7 have already let out the schedule property in favour of various tenants and as per the terms of the lease. Defendants 5 to 7 are collecting rents from the tenants. Defendants 5 to 7 as lessees under the agreement are maintaining the building in good condition. Defendants 5 to 7 are the absolute owners of super structure and the plaintiffs or defendant Nos. 1 & 2 have nothing to do with the super structure. The period of lease under the deed is 32� years and the same is not expired, till then defendants 5 to 7 are the absolute owners of the super structure and firm constituted by defendant Nos. 5 to 7 i.e.. Kalyan Building are entitled to collected the rents. As already stated supra, there is no relief sought against defendants 5 to 7. Defendants 5 to 7 are paying rent in respect of the premises in favour of defendant Nos. 1 & 2. The plaintiffs have nothing to do with the lease entered into between the defendants. The lease entered into between defendants 5 to 7 and defendants 1 & 2 is still in subsistence. The plaintiffs herein are not entitled to question the came. So also the plaintiffs are not entitled to question the lease entered into between the defendants. Admittedly the same is also not the subject matter of the suit. Hence, the suit filed by the plaintiffs is misconceived and the same is liable to be dismissed. It is pertinent to note here that the plaintiffs herein i.e., 1st plaintiff herein has filed a petition u/s 19 of the Karnataka Rent Control Act, seeking direction to deposit the rent in the Court in HRC No. 1897/96 before the Court of Small Causes, Bangalore. The petition filed by the first plaintiff came to be allowed. Aggrieved by the same, defendants 5 to 7 preferred a revision petition No. 1496/1998 before the Hon''ble High Court of Karnataka and the order passed by the Court below came to be set aside. Further, the Hon''ble High Court permitted to withdraw the rents deposited in the Court by the tenants and ordered that defendants 5 to 7 are entitled to collect the rents. The said order came to be confirmed by the Supreme Court. This itself suffice to show that defendants 5 to 7 are lawful tenants under the lease deed stated above and are entitled to collect the rents from the sub tenants. The order passed by the Hon''ble High Court and the Hon''ble Supreme Court make it crystal clear that defendants 5 to 7 are entitled to possession of schedule property for the period of lease provided under the aforesaid lease deed. Defendants 5 to 7 having taken the property on lease in a bonafide manner is legal and absolutely there is no merit in the claim. The lease deed is not hit by the doctrine of lis pendence Under these circumstances, defendants 5 to 7 are entitled to possession and receive rents till the expiry of said lease period. Defendants 5 to 7 are allowed to act according to the order passed by the Hon''ble High Court of Kamataka with regard to payment of rents and plaintiffs are not entitled to demolish the building by mandatory injunction.

On the basis of above pleadings, the trial Court framed following issues & additional issues:-

Whether defendant Nos. 1, 2, 4 & 5 prove that the suit is not valued properly and the Court fee paid is insufficient as contended in their written statement?

Whether the plaintiffs prove that they are entitled to 1/4th share each representing three branches of the family in the suit property?

Whether the 5th defendant proves that the suit filed by the plaintiffs against him is not maintainable as contended in his written statement?

What Decree? What Order?

Addl. Issues:

Are plaintiffs entitled to the relief of mandatory injunction as sought for?

Do the defendants 1, 2 and 4 prove that the relief of mandatory injunction is barred by limitation?

The plaintiffs in order to substantiate their claims, R.S. Harsha was examined as PW 1 and produced 8 documents, which are marked as Ex. P. 1 to Ex. P.8. On behalf of defendants, the 2nd defendant-C. Vasudev was examined as DW1 and defendant No. 5-M. Aswathanarayana Setty was examined as DW2 and they have produced 3 documents, which are marked as Ex. D.1 to Ex. D.3.

The trial Court on appreciation of oral and documentary evidence on record held that defendants 1, 2, 4 & 5 have failed to prove that the suit is not properly valued and Court fee is insufficient. The plaintiffs are claiming 1/4th share in the plaint schedule property. The plaintiffs have proved that they are entitled to 1/4th share each, representing their respective branches. Defendant No. 5 has failed to establish his contention that the suit against him is not maintainable. The trial Court held that plaintiffs are not entitled to the relief of mandatory injunction and defendants have failed to establish that the relief of permanent injunction is barred by limitation. Thus, the trial Court decreed the suit of plaintiffs for partition, declaring that plaintiffs 1 to 4 are jointly entitled to 1/4th share, plaintiffs 5 to 8 are jointly entitled to 1/4th share, plaintiffs 9 to 12 are together entitled to 1/4th share in the suit schedule property. Defendants 1 to 4, who are entitled to similar share are directed to share the benefit of rental income with plaintiffs till the expiry of the lease period. Defendants 5 to 7 were directed to deposit the rentals from the date of judgment in the Court and shall hand over possession of the property to plaintiffs and defendants 1 to 4 as per the recitals of the lease deed dated 20.08.1979. The plaintiffs were also held entitled to accounts from defendants 1 to 4 in respect of the rental income under the lease deed from the date of lease till the date of realisation. The trial Court has also held that there shall be an enquiry into mesne profits. It did not grant the relief of mandatory injunction.

Sri L.S. Venkatakrishna, learned Counsel appearing for the appellants/plaintiffs, assailing the judgment and decree of the trial Court contended that the lease deed executed in favour of defendants 5 to 7 admittedly came into existence during pendency of O.S. No. 1901/1976 and therefore validity of the lease deed is subject to the result of the suit. In the said suit, decree came to be passed, setting aside the settlement deed and the lease deed executed in favour of defendants 5 to 7. Once the settlement deed is set aside, which is confirmed by the appellate Court, the lessor has no right to lease the property because as on the date of lease, B.C. Nanjundaiah was very much alive. Defendants 5 to 7, who took lease during pendency of the proceedings are estopped from pleading equity or genuineness of the transaction. Even if the trial Court held that plaintiffs are not entitled to mandatory injunction because of lapse of time, it was in error in holding that plaintiffs have to wait for possession of schedule property till the expiry of lease period. Therefore, plaintiffs are entitled to the relief of possession of schedule property to the extent of their shares, immediately when the decree was passed. Therefore, he submits that the judgment and decree of the trial Court requires interference insofar as denial of relief of immediate possession as well as mandatory injunction is concerned.

Per contra, learned Counsel for defendant No. 5, submitted that though the lease deed came into existence during pendency of earlier suit, the said lease was prior to the filing of the present suit. Therefore, doctrine of lis pendence would not be attracted in the facts of the case. The lease deed executed also contained the signature of B.C. Nanjundaiah as a consenting witness and therefore, it cannot be said that lease was void from inception. More over, lease was for a long period of 32� years and lessees have spent a huge amount and constructed a shopping complex and therefore, defendants 5 to 7 are entitled to be in possession of schedule property till expiry of the lease period and the trial Court was justified in not only refusing grant of mandatory injunction but also directing defendants 5 to 7 to deliver possession only after expiry of the lease period.

In the light of the aforesaid facts and rival contentions, the points that arise for our consideration are as under:

(1) Whether the trial Court was justified in declining the relief of mandatory injunction?

(2) Whether the trial Court was justified in declining to order for possession immediately and was justified in directing the plaintiffs to wait till the expiry of lease period for the relief of possession?

Point No. 1:

The facts are not in dispute. The schedule property fell to the share of B.C. Nanjundaiah under a registered partition deed executed between his lather and his sons. The material on record disclose that the said B.C. Nanjundaiah was not able to take care of himself and therefore he had to be taken care of by another person. His elder brother, B.C. Krishna Swamy took care of him and his property also. It is in the course of such management of the property, the settlement deed came to be executed in favour of B.C. Krishna Swamy''s sons. There was a specific recital in the partition deed that the schedule property is the family property, though it was given to B.C. Nanjundaiah, in the necessity of the family, the said property should not be alienated at any rate to an outsider, without the consent of other family members. Though under the settlement deed, the schedule property was not given to an outsider, it was alienated by way of lease deed. Two of the nephews and a brother of B.C. Nanjundaiah, challenged the execution of settlement deed on the ground that executant B.C. Nanjundaiah was not mentally sound, a retarded person and was incapable of executing the said document. Both the suits came to be decreed and confirmed by the High Court, in the second appeal. It is during pendency of one of the said suits, lease deed came to be executed on 20.08.1979. The lease deed executed in favour of defendants 5 to 7 is by the persons, who have no right in the property under dispute, as defendants 5 to 7 took the lease with their eyes wide open during pendency of the suit. Defendants 5 to 7 acquired no right, as the lease deed is hit by the doctrine of lis pendence. Defendants 5 to 7 cannot seek equity, as they are not bonafide lessees under the lease deed. Therefore, the trial Court rightly held that once the settlement deed was set aside, the schedule property reverted back to the family members of B.C. Nanjundaiah and therefore all the family members of B.C. Nanjundaiah are entitled to an equal share in the schedule property. It is to be taken note of that as on the date lease came into existence, B.C. Nanjundaiah was very much alive. Even after his death, if B.C. Krishnaswamy and his sons, who are the lessors under the lease deed have 1/4th share in the schedule property, on the date of lease deed, they had absolutely no right on the schedule property. But the fact remains lease was of the year 1979. the present suit was filed roughly 18 years thereafter. Even in the original suit, the relief of mandatory injunction was not sought. It was sought only by way of amendment. It was under these circumstances, the trial Court was justified in holding that plaintiffs kept quite and did not take any action against construction of the building; therefore, they were estopped from the relief of mandatory injunction. The lease was coming to an end shortly and plaintiffs would be entitled to possession of schedule property thereafter. The relief of mandatory injunction is discretionary. The trial Court has rightly refused to grant the said relief in the peculiar facts of the case. It was not a fit case for grant of mandatory injunction.

Point No. 2:

Merely because the relief of mandatory injunction was not granted that does not mean, the person who got into the schedule property and put up construction can continue to be in possession till the remaining period of lease period. The lease from the inception was void. It is true that defendants 5 to 7 had put up huge construction with considerable cost and let out the schedule property and collecting rents. But the lease was obtained from persons who had no title. Title was in dispute and admittedly decree was passed, which is confirmed by the High Court. The doctrine of lis pendence is attracted. The persons, who took lease of the schedule property during pendency of the suit, cannot have any right or interest in the subject matter of the suit and they cannot plead equity, denying the rights of plaintiffs, who had instituted the suit. Though in the present suit, the lessors of defendants 5 to 7 are also entitled to 1/4th share in the schedule property, insofar as 3/4th share is concerned, certainly defendants 5 to 7 have no right over the schedule property after the preliminary decree is passed, declaring shares of the plaintiffs. The lease deed executed by B.C. Krishnaswamy''s sons do not bind the plaintiffs whatsoever. The finding of the trial Court that plaintiffs have to wait till the expiry of lease period is illegal and has no legal basis. Insofar as the plaintiffs are concerned, there is no lease, which exists in law. Defendants 5 to 7 are unauthorised persons in the schedule property. They cannot plead equity, in view of the doctrine of lis pendence and they cannot be allowed to continue in derogation of the rights of plaintiffs as held by the trial Court and to that extent the judgment of the trial Court requires modification. As on today, hardly another one and a half year is left for completion of the above said lease period. However, the plaintiffs are entitled to immediate possession.

Under these circumstances, we pass the following:

ORDER

(i) The appeal is partly allowed.

(ii) The decree for partition is hereby confirmed.

(iii) The Plaintiffs are entitled to partition and separate possession of their respective shares immediately.

(iv) They can work out their respective shares by filing an application for final decree proceedings and alter their shares are determined by metes and bounds, they are entitled to get possession of the same from whosoever is in possession.

(v) Insofar as mesne profit is concerned, an enquiry has to be conducted under Order XX Rule 12 of C.P.C.

(vi) Parties are directed to bear their own costs.