K.M. Narayanaswamy Reddy and Smt. Saraswathamma Reddy vs Sri Abdul Hafeez

A S. Bopanna

The appellants herein are the defendants in O.S. No. 4324/97. The suit in question was filed by the respondent herein seeking for declaration against the defendants, declaring that the plaintiff is the absolute owner of the suit schedule property. The plaintiff has also sought for the alternative relief of possession of the property in the event of the Court below coming to the conclusion that the plaintiff is not in possession of the property. The defendants had appeared and opposed the suit. The Court below after considering the rival contentions has decreed the suit in part by its judgment dated 20.09.2010. Though the trial Court has decreed the suit insofar as the ownership of the plaintiff as claimed, the relief seeking possession has been rejected. The defendants therefore claiming to be aggrieved by the said judgment are before this Court.

The parties are referred to in the same rank as assigned to them before the Court below for the purpose of convenience and clarity.

The brief facts to be noticed keeping in view the rival contentions before the trial Court is that the plaintiff claims to have purchased the suit schedule property under a sale deed dated 09.08.1990. It is the case of the plaintiff that the said site which has been purchased under the said document is a part of the property in Sy. No. 9 of Kowdenahalli, Ramamurthy Nagar, K.R. Puram Hobli, Bangalore South Taluk, which in all measures 5 acres. However, the case of the defendants is that the entire extent in the said survey number is 8 acres 14 guntas. The plaintiff claims that the sale deed in his favour was executed by the Power of Attorney holder viz., Sri Imtiyaz Ahmed Khan. The Power of Attorney in question dated 01.06.1990 is stated to have been executed in favour of Sri Imtiyaz Ahmed Khan by late Muniyappa Reddy i.e., the father of the first defendant. The plaintiff''s case is that the property had been assigned Khatha No. 97/1/9 by the ITI Notified Area Committee and therefore, the said number had been indicated in the sale deed while conveying the property.

The defendants however disputed the said contention and it is their case that the father of the first defendant viz., Late Muniyappa Reddy had not executed any Power of Attorney in favour of Sri Imtiyaz Ahmed Khan or any other person. It is their case that the property was not converted for non-agricultural purposes nor have the residential sites been formed in the said property. It is also contended that the question of ITI Notified Area Committee assigning the Khatha number as claimed by the plaintiff would not arise inasmuch as the defendants have relied on the documents viz., the endorsement at Exhs. D10 and D11 to indicate that the property had not been converted and the ITI Notified Area Committee has not assigned the khatha number to the property. It is also contended by the defendants that the property continued to be agricultural properties and the name of father of the first defendant and after his death, the name of the first defendant was indicated in the RTC. Though certain extents have been sold by the first defendant himself as indicated in the RTC, the same does not refer to the property in question in the instant suit. It is therefore contended that when the Power of Attorney claimed itself is not in accordance with law, the sale deed based on such Power of Attorney in any event would not grant any title to the plaintiff.

In the light of the rival contentions and the materials which were available on record, the Court below no doubt has accepted the claim of the plaintiff and has decreed the suit to the extent stated. What is to be noticed is that the plaintiff had also sought for relief of possession but, the same has been declined by the Court below.

In that light, keeping in view the documents relied on by the defendants, more particularly the documents referred to above would indicate that the defendants are claiming right to a larger extent in respect of the property as against the right which has been claimed by the plaintiff in respect of the property which is stated to have purchased under the sale deed in question and is a smaller site in that property. If these aspects of the matter is kept in view, what is also to be noticed is that the instant suit was filed by the plaintiff in the year 1997. In fact, the first defendant herein has also instituted a suit in O.S. No. 103/1998 in respect of the entire extent of the property claiming rights therein. In the said suit, initially, the plaintiff therein viz., the first defendant herein had sought only for grant of injunction. However, considering the nature of the defence which has been put forth, the plaintiff therein has also sought for declaration of his right in respect of the suit schedule property. It is no doubt true that the plaintiff herein is not a party to the said suit. However, the issue relating to the Power of Attorney stated to have been executed is one of the primary contentions in the said suit wherein the plaintiff contends that no such documents were executed by father of the first defendant. Therefore, the finding to be rendered in the said suit which is more encompassing in view of the relief which has been prayed herein, more particularly in a circumstance where the Court below has denied the relief of possession to the plaintiff herein, the decision rendered therein would be of consequence.

That apart, even at this stage, if the instant judgment passed by the Court below is upheld in this appeal and if the first defendant herein is able to establish his case in O.S. No. 2163/1998, the result therein would encompass the property involved herein and there would be conflicting judgments and the parties would not be in a position to enjoy the fruits of the decree as the litigation would continue to linger.

Therefore, keeping in view these aspects of the matter, the appropriate procedure that should have been followed by the Court below was to club the instant suit in O.S. No. 4324/1997 along with O.S. No. 2163/1998 and thereafter since common contentions were being urged which related to the very same property, whereunder the right is claimed in the instant suit to a portion of it, the judgment would have rendered a finality to the claims between the parties. Therefore, in order to enable the same and considering the fact that the documents relied on by the defendants herein would also be relevant to be considered in O.S. No. 2163/1998, the judgment and decree dated 20.09.2010 passed in O.S. No. 4324/1997 is set aside. The suit in O.S. No. 4324/1997 is restored to the file of XVII Addl. City Civil Judge, Bangalore City. It is directed that the instant suit in O.S. No. 4324/1997 shall be clubbed along with O.S. No. 2163/1998 which is pending in that Court and thereafter be considered and a common judgment be rendered in the said cases.

In terms of the above, the appeal is allowed in part. Since the matter now stands remitted to the Court below for considering the suit afresh, the appellants/defendants are entitled to refund of the Court fee paid on this appeal.