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Judgment
Anand Byrareddy, J—Heard the learned Counsel for the appellants, Shri Papi Reddy and the learned Senior Advocate Shri Naganand, appearing for the counsel for the respondent.
The appellant was the plaintiff before the trial court in a suit for permanent injunction. It was the case of the plaintiff that his father Muniswamappa @ Muniswamy Reddy, along with the plaintiff and his four brothers constituted a joint Hindu family. The plaintiffs father is said to have died five years prior to the suit and that the family owned several immovable properties at Munnekolala village, Bangalore South Taluk and the properties which comprised of land bearing Survey Nos. 93/1, 93/2, 94 and 96 and 135 were said to be the subject matter of partition amongst the plaintiff and his brothers. The plaintiff claims that he was the absolute owner in possession and enjoyment of land bearing Survey No. 94 of Munnekolala village and to the north of this land, there was a triangular piece of land, which was shown in the rough sketch appended to the plaint and marked by the letters of the alphabet ABC, wherein the plaintiff had constructed shops, temples etc. All these constructions were of a permanent nature and to the northern side of this area of land was the Bangalore-Varthur road. The plaintiff further claimed that if one had to reach the plaintiffs property, one had to pass through the triangular portion referred to above and there are existing roads, which were being used by the plaintiff and others to pass and repass the said area of land to reach his properties. The said road provides access to the Bangalore-Varthur road from the plaintiffs property and that the plaintiff had perfected his title to the said extent of land by adverse possession and that it was that strip of land which was the subject matter of the suit.
It was further claimed that on the suit schedule property, the plaintiff had constructed several shops and residential buildings and he was also residing therein. Apart from it, there are standing trees like coconut and banana and that the defendants had lost all right over the suit schedule property. It was further claimed that the plaintiff had enclosed the entire extent of disputed property with a barbed wire fencing. In this background, when the defendants sought to interfere with the suit schedule property, the plaintiff had restrained the defendants with great difficulty and thereafter filed a suit seeking the relief of permanent injunction. In the first instance there was an order of temporary injunction granted in favour of the plaintiff.
The suit was contested by the defendant, who had entered appearance and disputed and denied the plaint averments, and contended that the brother of the plaintiff one Doreswamy Reddy, at the instigation of the plaintiff, had filed a similar suit in OS 1977/1987 on the file of the XVII Additional City Civil Judge, Bangalore in respect of the suit schedule property, for permanent injunction against this very defendant and that the suit was dismissed for non-prosecution and the matter was directly and substantially in issue in that suit and therefore, was clearly barred by the principle of constructive res judicata. It was denied that the plaintiff and others owned land bearing survey Nos. 95 and 135 or that he had become the exclusive owner of land bearing survey No. 94. And it was highlighted that the plaintiffs pleadings were incongruous in that it was claimed by the plaintiff that he was the owner of the disputed property and also claimed to have perfected his title by adverse possession which are inconsistent pleadings and self destructive and could not be sustained. On the other hand, it was stated that the Deputy Commissioner, Bangalore District had granted 4 acres 37 guntas of land in Survey No. 134 old Survey No. 94 and 26 guntas of land in Survey No. 95 of Munnekolala village in favour of the Karnataka Dairy Development Corporation at the market rate of Rs. 15,000/- per acre and the entire amount of Rs. 41,812.50 was paid towards the price of the land and possession was taken under a mahazar drawn in the presence of the Revenue Inspector and physical possession was handed over to the erstwhile Karnataka Dairy Development Corporation, which is now known as ''Karnataka Milk Federation" and that the defendant has been in possession and enjoyment of the entire area of 5 acres 23 guntas inclusive of the suit schedule property and the plaint averments to the contrary were denied.
It is on these pleadings, that the court below had framed the following issues:
"1. Whether the plaintiff proves that he is in lawful possession of the suit schedule property?
Whether the plaintiff proves that the defendant attempted to block the road and demolish the temple and existing construction and remove the fence existing on the suit schedule property?
Whether the plaintiff is entitled for permanent injunction.?"
Before the trial could commence in the aforesaid suit, the plaintiff chose to file yet another suit in OS 9544/1998, which was preferred against the State represented by the Chief Secretary to the Government, the Secretary to Government, Revenue Department and the Special Deputy Commissioner, Bangalore Urban District as well as the defendant in the present suit and the reliefs sought were of a much more comprehensive nature. The plaintiff sought for a declaration that the plaintiff was the owner in possession of the suit schedule property and for permanent injunction. The plaintiff sought to lay foundation for such a comprehensive relief on the basis that one Narayanappa had sold the land bearing Survey No. 94 under a registered sale deed dated 10.4.1940 in favour of one Patel Narayana Reddy. Patel Narayana Reddy sold the land purchased by him in favour of the father of the plaintiff under a registered sale deed dated 24.10.1943. In both these sale deeds, the triangular piece of land, which was portion of land bearing Survey No. 95 had been included, though the sale deeds were in respect of the land in Survey No. 94 measuring 15 acres 39 guntas of Munnekolala village and therefore, by virtue of such conveyance, the vendor aforesaid was asserting hostile title against the State in respect of the triangular piece of land, which is the suit schedule property in both these suits. Narayanappa was in possession of the said land measuring 26 guntas from the year 1935. As on 10.4.1940, Narayanappa was in possession of the land as against the Government. Patel Narayana Reddy came into possession thereafter and was asserting his hostile title against the Government. Thereafter, Patel Narayana Reddy had built several structures to the knowledge of the officials of the State Government including the revenue officials. The plaintiffs father came into possession of the suit land as on 24.10.1943 and he continued to assert hostile title as against the Government. Therefore, the plaintiffs father, his vendor and the previous vendors, were asserting hostile title against the Government and were seeking to take their possession as it were as against the Government over the years in claiming to have perfected title by adverse possession in respect of the said land. It transpires that the structures that were constructed were in disrepair and the father of the plaintiff had renovated and rebuilt other structures to the knowledge of all and the suit schedule property was openly enjoyed denying the title of the government and asserting hostile title for over 30 years and therefore even as against the State, the appellants had perfected their title by adverse possession.
The plaintiff''s father had built a temple dedicated to Swamy Ayyappa, a Navagraha temple, several rows of shops, a timber depot and a manufacturing unit, manufacturing cement pipes and all these businesses and establishments were thriving on the suit schedule property to the knowledge of all. There was no attempt at dispossession till just prior to the suit by the defendant and the State Government as well. It is in that background that the present suit seeking declaration of ownership was filed, apart from seeking the relief of injunction as well.
The second suit in OS 9544/1998 was also contested by the Milk Federation by filing written statement reiterating its above stand in the manner in which the land had been acquired and denying the plaintiffs claim over the suit schedule property.
Having regard to the two suits being in respect of the same item of property, the trial court had thought it fit to club both the suits and a common trial was conducted. On the basis of the pleadings of the parties, the trial court has framed the following issues:--
"1. Whether the plaintiffs prove that they and their predecessors have perfected their title to the suit schedule property by way of adverse possession?
Whether the plaintiffs prove their possession of the suit schedule property on the date of the suit?
Whether the plaintiffs prove the alleged interference by the defendants?
Whether the fourth defendant proves its title to and possession of the suit schedule property, as averred in para No. 10 of its written statement?
Whether the plaintiff is entitled to a declaratory decree as sought for?
Whether the plaintiff is entitled to a decree of permanent injunction, as sought for?."
The trial court had decided issue No. 4 in the affirmative and other issues in OS 9554/1998 in the negative and dismissed the suit of the plaintiff And in OS 2478/1993, the trial court held all the issues in the negative and dismissed the suit.
The plaintiff has not chosen to challenge the judgment and decree in OS 9544/1998 but has sought to challenge the first judgment and decree passed in OS 2478/1993 and dismissed the suit and held all the issues in the negative in OS 2478/1993.
The plaintiff had not chosen to challenge the judgment and decree in OS 9544/1998, but have sought to challenge only the judgment and decree passed in OS 2478/1993.
The learned Counsel for the appellant, Shri Papi Reddy would now contend that the appellant has not chosen to challenge the judgment and decree in OS 9544/1998 for the plaintiff no longer seeks to sustain his claim of title, but would only seek to protect his possessory right. In that, it is not in dispute that the plaintiff and before him, his father and his vendors were in continuous possession and had put up several structures on the said building and that there are third parties in possession claiming under the plaintiff and this is to the knowledge of the defendant and others and therefore, it would be sufficient if the plaintiff is granted the protection of injunction till dispossession otherwise than under due process of law. Though both the suits have been dismissed by the trial court, the possession of the plaintiff in respect of the suit schedule property has not been in serious dispute. Though there is bare denial by the defendant, there is overwhelming material on record to disclose that the plaintiff and other third-parties were in possession of the suit schedule property, in which event, it could not be said that the plaintiff had not established settled possession over the suit schedule property and therefore, the unconditional dismissal of the suits results in a miscarriage of justice as would expose the plaintiff and others claiming under him to summary dispossession which would be arbitrary and illegal. And therefore the learned Counsel seeks that the appeal be allowed to the limited extent of protecting the possession of the plaintiff - appellant, till dispossession, otherwise than under due process of law.
The learned Counsel incidentally contends that though the claim of having perfected title by adverse possession could even be sustained in the light of the fact that there is material on record to indicate that the occupation of the plaintiff having been noticed by the officials of the State, directions were issued to take steps to remove the encroachments, but no action having been taken, would adequately disclose animus requisite to establish the claim of adverse possession.
The learned Senior Advocate Shri Nagananad appearing for the Counsel for the respondent would point out that the plaintiff not having chosen to challenge the judgment insofar as the suit in OS 9544/1998 is concerned, which was a suit filed for comprehensive relief of declaration of ownership as well as injunction, would render the earlier suit filed by the plaintiff and the judgment now is sought to be questioned in this appeal, as paling into insignificance. In that, it is the settled position of law that when multiple suits are filed and disposed of by a common judgment, but by separate decrees and if an appeal is preferred against the decree passed in one, while not choosing to a file an appeal against other, it would not be efficacious as no relief can be granted as the judgment rendered in the suit seeking larger relief would prevail and cannot be disturbed, even if the appeal preferred against the suits seeking lesser relief is allowed. Further, the appeal preferred would be barred by the principles of res judicata, as the suit in respect of which, a decree is passed, but no appeal filed, would assume the character of former suit and hence the findings in such decree having attained finality, would operate as res judicata. This has been laid down in similar circumstances as in the present case on hand, by a three-judge bench of the Supreme Court in the case of Gangai Vinayagar Temple Vs. Meenakshi Ammal, (2014) 4 RCR(Civil) 920 . More particularly, the Supreme court has explained the principle on which such appeals ought not be entertained in the following words:
"27. Procedural norms, technicalities and processual law evolve after years of empirical experience and to ignore them or give them short-shrift inevitably defeats justice. Where a common judgment has been delivered in cases in which consolidation orders have specifically been passed, we think it irresistible that the filing of a single appeal leads to the entire dispute becoming sub judice once again. Consolidation orders are passed by virtue of the bestowal of inherent powers on the courts by Section 151 CPC, as clarified by this Court in Chitivalasa Jute Mills Vs. Jaypee Rewa Cement, AIR 2004 SC 1687 : (2004) 2 JT 535 : (2004) 137 PLR 290 : (2004) 2 SCALE 213 : (2004) 3 SCC 85 : (2004) 2 UJ 789 : (2004) AIRSCW 1095 : (2004) 1 Supreme 824 . In the instance of suit is in which common issues have been framed and a common trial has been conducted, the losing party must file appeals in respect of all adverse decrees founded even on partially adverse or contrary speaking judgments. While so opining we do not intend to whittle down the principle that the appeals are not expected to be filed against every inconvenient or disagreeable or unpropitious or unfavourable finding or observation contained in a judgment, but that this can be done by way of cross objections if the occasion arises. The decree not assailed thereupon metamorphoses into the character of a "former suit". If this is not to be so viewed, it would be possible to set at naught a decree passed in Suit. A by only challenging the decree in Suit B. Law considers it an anathema to allow a party to achieve a result indirectly when it has deliberately or negligently failed to directly initiate proceedings towards this purpose. Laws of procedure have picturesquely been referred to as handmaidens to justice, but this does not mean that they can be wantonly ignored because, if so done, a miscarriage of justice inevitably and inexorably ensures. The statutory law and the processual law are two sides of the judicial drachma, each being the obverse of the other. In the case on hand, had the tenant diligently field an appeal against the decree at least in respect of OS No. 5/1978, the legal conundrum that has manifested itself and exhausted so much judicial time, would not have arisen at all."
It is further contended by the learned Senior Advocate that insofar as the claim that the plaintiff is in settled possession and that possession has been protected, cannot also be countenanced. The claim of the plaintiff is with reference to an entry in the RTC extracts of the year 1967, whereas as early as in the year 1980, the State Government having noticed that the land belongs to the State Government, had handed over possession to the defendant herein and there is no indication therefore, that such settled possession was claimed against the State. Therefore, it could not be said that the plaintiff was prima facie demonstrating possession for over 30 years against the State Government.
In the above facts and circumstances, apart from the fact that the plaintiff would have to fall in this appeal in not having chosen to challenge the judgment and decree in the suit claiming larger relief in respect of the very suit property, namely, a declaration as to the ownership, it is also to be noticed that in both this, as well as in the other suit, the plaintiff was asserting his possession over the suit schedule property and claiming to have perfected his title by adverse possession and therefore claiming ownership of the property and that claim having been taken to its logical conclusion and having been rejected by the trial court, it would not be open for the appellant to now dilute the claim and simply seek to sustain his possession on the basis of so called settled possession. A person seeking to claim ownership of the property would never be satisfied with a claim for settled possession and therefore the plaintiff having come to court with a nebulous claim, cannot have the luxury of election in claiming as the owner as also having been failed to establish his ownership, seeking to restrict the relief to one of continued possession. Such continued possession could not be legal possession, but illegal possession. Therefore, the plaintiff would not be entitled to any such relief.
Consequently the appeal stands dismissed.