Smt. Lalitha Kothari vs V. Sathyanarayana Rao

Mrs. B.V. Nagarathna, J.—Though these appeals are listed for admission, with consent of learned Counsel on both sides, they are heard finally and disposed of by this common judgment.

R.F.A. No. 971 of 2010 arises from O.S. No. 8855 of 2007, which was a suit filed by respondent 1-plaintiff against respondent 2 seeking relief of permanent injunction. The said suit was decreed by XLI Additional City Civil Judge at Bangalore on 30-1-2010. R.F.A. No. 972 of 2010 arises from judgment and decree passed in O.S. No. 8856 of 2007 filed by respondents 1 to 3 herein dated 30-1-2010 by the very same Court. R.F.A. No. 973 of 2010 arises out of O.S. No. 8863 of 2007, which was filed by respondents 1 to 9 herein also seeking relief of permanent injunction, the said suit was also disposed of by judgment and decree dated 30-1-2010 by the very same Court.

The reason as to why these appeals are connected is because the defendant in each of the suits is the very same person viz., Thirupathi Reddy, who has been arrayed as respondent in all these appeals. He is served and unrepresented. Further, the suit schedule properties in all the three matters is property bearing No. 5/6 but having different site numbers, which are Site Nos. 23 and 4 respectively, originally forming part of Sy. No. 28/1 of Maji Mallenahalli Village, Bangalore Taluk, now known as Sheshadripuram (Palace Guttahalli Main Road) coming within the limits of Bruhat Bangalore Mahanagara Palike (for short, ''BBMP''), Ward No. 6. The extent of the respective sites and other details pertaining to the site are mentioned to the schedule annexed to the plaint in each of the suits. By judgment and decree dated 30-1-2010, all the three suits were decreed in the following terms:

"The suit filed by the plaintiff is hereby decreed as follows:

The defendant, his men, agents or anyone else claiming through him are hereby permanently restrained from interfering with the plaintiff''s peaceful possession and enjoyment of the suit schedule property.

Under the facts and circumstances of the case, no order as to costs.

Office to draw decree accordingly."

The appellant herein was not a party to any of the three suits. She claims to have purchased the suit schedule sites from the defendant in the suits i.e., from Thirupathi Reddy. The main grievance of the appellant is that in the absence of her being arrayed as defendant in all the three suits and without giving her an opportunity to contest the suits, a decree could not have been passed as against her. More specifically, her grievance is that the expression ''anyone else claiming through him'' in the operative portion of the judgments in all the three suits is a decree as against her without being arrayed as a party to the suits, in the circumstances, the appellant has preferred these appeals, assailing judgment and decree of the Trial Court dated 30-1-2010 in each of the suits by seeking permission of this Court to prosecute these appeals as an appellant. By order dated 3-3-2015, this Court has granted leave to the appellant to prosecute these appeals. The cause of action against the defendant in all the three suits appears to be similar and therefore for the purpose of narration of facts, reference is made to O.S. No. 8855 of 2007 so as to bring out the context, in which the controversy arises in these appeals.

For the sake of convenience, the parties shall be referred to, in terms of their status before the Trial Court.

In O.S. No. 8855 of 2007, respondent 1 herein was the plaintiff who filed the said suit seeking the relief of permanent injunction restraining the defendant (respondent 2 herein) and any other person claiming through him from interfering with plaintiff''s peaceful possession and enjoyment of the suit schedule property. According to the plaintiff, site bearing No. 2 formed part of Sy. No. 28/1 of Maji Mallenahalli Village now known as Sheshadripuram, morefully described in the plaint schedule. The plaintiff acquired the said site under sale deed dated 22-9-1980 executed by one Smt. Yashodhamma, wife of Sri Ashwathnarayana Setty, Sri Govardhan and Smt. Geetha under registered Document No. 2505 of 1980-81 before the Sub-Registrar at Gandhinagar, Bangalore. Thereafter, plaintiff approached the local Revenue Authority i.e., Bangalore City Corporation to enter his name in the Revenue Records. His request did not materialise on account of the pendency of a substantive litigation in respect of the suit schedule property amongst the legal representatives (L.Rs) of Late Sri D.N. Ramaiah. The vendors of the plaintiff, are stated to have perfected their title to the suit schedule property and as such, the plaintiff''s title to the suit schedule property was valid, clear and marketable in nature. That being the fact, the defendant without having any right, title or interest whatsoever in the suit schedule property started interfering with plaintiff''s peaceful possession and enjoyment. Plaintiff approached his vendors who have clarified the situation to the plaintiff in light of the relevant documents evidencing the termination of proceedings before the Court of law amongst the parties to the above said suits. In view of the compromise petition filed by the parties before High Court, the defendant nor his vendor had any right, title, interest or share in the suit schedule property. The defendant was not in possession of the suit schedule site at any point of time. The sale of various sites in the layout where the suit schedule property is situated including the suit schedule property by the L.Rs of late Sri D.N. Ramaiah had not been disturbed in any manner whatsoever and the said sale continued to be legal, valid perfect and binding against the whole World. The sale deed in favour of the plaintiff being the earliest sale prevailed upon other subsequent transactions in respect of the said property. The High Court had dismissed the impleading application of the defendant in R.F.A. No. 591 of 2002 and connected appeals, which was disposed of on 9-10-2007 by virtue of the compromise petition entered into between the parties.

The defendant had filed a separate proceeding in O.S. No. 1738 of 2006 before the City Civil Court, Bangalore against the vendors of the plaintiff seeking the relief of injunction in respect of the suit property and in that suit by order dated 1-3-2006, the Civil Court had granted an order of status quo directing the defendant not to put up any construction in the suit schedule property and not to demolish the compound wall. Surprisingly, defendant withdrew the suit on 15-11-2007 when the case was slated for recording evidence and defendants started making attempts to interfere with plaintiff''s peaceful possession and enjoyment of the suit schedule site and even tried to demolish the compound wall. Plaintiff approached the police who refused to accept any complaint against the defendant. In fact, the plaintiff after purchasing the suit property had filed an application in O.S. No. 1738 of 2006 with a request to implead the subsequent purchasers, which was rejected on the ground that the plaintiffs right and title to the property would get perfected. In fact, that suit was a subject-matter of appeal disposed of by the High Court on 9-10-2007 under the compromise decree. According to the plaintiff, his vendor had perfected title to the suit schedule site on account of the compromise decree passed by the High Court with retrospective effect from the date of purchase i.e., 22-9-1980. Therefore, the plaintiff has continued to be in actual possession of the site since then.

The defendant visited the suit property on 16th and 17th of November, 2007 and tried to demolish the compound wall and watchman''s shed. Plaintiffs resisted the attempts made by the defendant with the help of his friends and his vendors. There was a likelihood of imminent danger to the lawful right of the plaintiff over the schedule property. Hence, the plaintiff approached the Court by filing the said suit.

In response to the suit summons and Court notices, defendants appeared and contended that the suit filed by the plaintiff was not maintainable either in law or on facts of the case. The suit of the plaintiff was for bare injunction, it was bad for non-joinder and misjoinder of parties. The defendant contended that the plaintiff was never in possession of the suit schedule site nor was the suit site in existence on the spot. Therefore, the suit for bare injunction was not maintainable. It was denied that the plaintiff was the absolute owner in possession of the suit property as no revenue records was produced in support of that fact. It was contended that the alleged vendor of the plaintiff had no subsisting right, title or interest to execute the sale deed in favour of the plaintiff and the plaintiff had no legally enforceable right to seek any relief against the defendants. It was further contended that Sri D.N. Ramaiah had formed residential sites in Sy. No. 28/5 and had sold certain sites to some persons. He had executed a Will dated 11-5-1974 and thereafter a Codicil dated 29-4-1978 in favour of Mrs. D.P. Padmavathamma in respect of the suit site. She had paid betterment charges on 27-5-1980 and since then was in possession and enjoyment of the same as an absolute owner and her name was entered in the revenue records. Smt. Padmavathamma had sold a portion of the property bearing Corporation No. 5/6 carved out of Sy. No. 28/1, Palace Guttahalli, Bangalore and after bifurcation assigned Corporation No. 5/6, PID No. 6-66-5/6 at 4th Cross, Nagappa Street, Bangalore Ward No. 6 described in the schedule to the plaint to the defendant, under sale deed dated 13-5-1981. Since then defendant was in possession and enjoyment of the same. Thereafter, defendant obtained sanction of plan from BBMP on 22-2-2006. Subsequently, defendant sold the suit property to Mrs. Lalitha Kothari (appellant herein). She had in fact published a public notice in Indian Express and Kannada Prabha, Daily Newspapers on 3-11-2007 intending to purchase the suit schedule property. The defendant executed the sale deed in her favour on 17-11-2007. Mrs. Lalitha Kothari thereafter, obtained transfer of Khata of the suit schedule property in her name and her name was entered in the revenue records of the BBMP. Therefore, defendant 1 had delivered the possession of the suit property to Mrs. Lalitha Kothari who was in actual possession and enjoyment of the suit property as an absolute owner. The suit property is compounded with solid cement blocks and a watchman shed is in existence with electricity connection. The plaintiff has no manner of right title or interest over the suit schedule property. Therefore, defendant sought dismissal of the suit.

On the basis of the rival pleadings, the Trial Court framed the following issues for its consideration:

VERNACULAR MATTER

In order to substantiate his case, the plaintiff examined himself as P.W.1 and produced six documents, which were marked as Exs. P.1 to P. 6. Defendant did not let in any evidence. It is of significance to mention that in all the three suits, plaintiffs let in oral evidence as well as documentary evidence, but the defendant who was common in all the three suits did not let in any evidence. On the basis of the evidence on record, the Trial Court answered the issues raised in O.S. No. 8855 of 2007 as under:

"Issues 1 to 3 in the affirmative and accordingly, dismissed the suit and the operative portion for immediate reference reads as under:

"The suit filed by the plaintiff is hereby decreed as follows:

The defendant, his men, agents or anyone else claiming through him are hereby permanently restrained from interfering with the plaintiff''s peaceful possession and enjoyment of the suit schedule property.

Under the facts and circumstances of the case, no order as to costs.

Office to draw decree accordingly.""

It is necessary to note that the operative portion of the judgment in all the three cases is identical. Being aggrieved by the judgment and decree of the Trial Court passed in each of the three suits dated 30-1-2010, the appellant has preferred these appeals.

I have heard learned Counsel for the appellant and learned Counsel for the respondents in each of the appeals and perused the material on record.

It is submitted on behalf of the appellant that plaintiff in each of the suits, no doubt, filed the suit seeking a decree of permanent injunction in favour of the defendant Thirupathi Reddy, who is common in all the three suits. But all the three suits filed as against him were not maintainable inasmuch as on the date of the filing of the suits, the defendant-Thirupathi Reddy has alienated the suit schedule property to the appellant. Therefore, no relief of injunction could have been granted as against defendant inasmuch as he had lost right, title and interest in respect of the suit schedule properties as he had alienated the same to the appellant and had also given possession of the said sites to the appellant. Therefore, the suits should have been dismissed on that score alone. However, during the pendency of the suits, the plaintiff in each of the cases made an attempt to implead the appellant herein as a defendant. Applications were filed in all the three suits under Order I, Rule 10 read with Section 151 of Code of Civil Procedure (CPC) in order to implead the appellant as defendant. This was on the premise that the appellant herein had purchased the suit schedule properties in all the suits from the defendant-Thirupathi Reddy. However, the Trial Court in each of the suits dismissed the application filed by the respondent/plaintiff. The order of dismissal was not assailed before the higher forum. In the circumstances, the appellant did not come on record as defendant in all the three suits. Consequently, she did not have an opportunity to contest the suits as the suits were not dismissed at the initial stage on the premise that the defendant had lost his right, title and interest in respect of the suit property. The Trial Court while continuing with the trial of the suits, by recording evidence in each of the cases ultimately passed the judgment and decree against the sole defendant who had in fact, lost right, title and interest in respect of the said sites and while doing so, also passed a decree against the appellant herein. It is not in dispute that the appellant herein had purchased the suit schedule sites from the defendants, but the use of the expression "any one claiming through him" in the operative portion of the judgment implies that the decree has been passed against the appellant herein without being arrayed her as defendant in the suit. He contended that the said decree as against the appellant is erroneous for the simple reason that it has been passed without the appellant having an opportunity to contest the suit filed by the respondent/plaintiff. He therefore, submits that the decree as against the appellant in each of the three suits may be set aside.

Per contra, learned Counsel for the respondent/plaintiff, while supporting the judgments and decrees of the Trial Court in each of the suits contended that the apprehension of the plaintiffs in each of the cases was against the attempts made by the defendant-Thirupathi Reddy in interfering with suit schedule property. He was rightly arrayed by the plaintiff in the suits. After coming to know of the fact that the appellant herein had purchased the suit schedule properties from the defendant-Thirupathi Reddy, applications were filed in each of the three suits to array the appellant herein as a defendant, but the said applications were rejected in all the suits. Consequently, the suit proceeded only as against the sole defendant-Thirupathi Reddy. But the prayer sought by the plaintiffs in all the three suits was not only against the defendant-Thirupathi Reddy, but also against his agents or anyone claiming through him. The appellant is claiming through the said Thirupathi Reddy under registered sale deeds. Therefore, the decree passed against her is just and proper and the same would not call for any interference. He hence, contended that there is no merit in these appeals and the appeals may be dismissed.

Having heard learned Counsel for the parties and on perusal of the material on record, in each of the cases, the only point that arises for my consideration is:

"Whether the Trial Court was justified in passing the judgment and decree of permanent injunction against the appellant herein."

The narration of facts has been with reference to O.S. No. 8855 of 2007. The facts in the other cases are not dissimilar to what has been stated above. What is relevant to note is that the common defendant in all the three suits i.e., Thirupathi Reddy had alienated the suit schedule sites to the appellant even prior to the filing of suits. Assuming for a moment that the alienation had been taken place during the pendency of the suit, even in that case, the question is as to whether a person could exercise his rights and seek the relief of permanent injunction against a defendant who had lost right, title and interest in respect of the suit schedule properties. The contention on both sides is that there were alienations made by defendant-Thirupathi Reddy in favour of the appellant herein. That is precisely the reason as to why the respondent/plaintiffs had filed applications under Order I, Rule 10 of the CPC in each of the cases to implead the appellant herein as a defendant in all the three suits. But the Trial Court however, thought that since the suit was for a bare injunction as against the sole defendant, it was not necessary to implead the subsequent purchaser as a defendant in the said suit. Even if that was so, the Trial Court ought to have only considered as to whether the defendant was liable to be injuncted having regard to the interference that was caused to the plaintiff as had been contended by them and therefore, should have restricted the decree of permanent injunction insofar as he was concerned. But the Trial Court went further and held that the decree of permanent injunction would operate not only as against the defendant, but anyone else claiming through him.

In this context, it may be necessary to observe that the respondent/plaintiffs rightly tried to array the appellant herein as a defendant in all the three suits. In fact, respondents could have sought for the very same relief as against the appellant herein on arraying them as defendants in all the three suits. But the applications were rejected. Respondent/plaintiffs could have also initiated separate and independent suits against the appellant if they had any cause of action to do so. The fact remains that no such independent or separate suits have been filed by respondent/plaintiffs as against the appellant herein. In case the respondent/plaintiffs have such a cause of action, they are always at liberty to file a suit as against the appellant herein in spite of the judgment and decree of the Trial Court, which are impugned in these appeals. But the fact remains that if such a course could have been taken by the respondent/plaintiffs, they are at liberty to do so if the cause of action arises, then in that case, the impugned judgment and decree should not operate as a res judicata in any future proceeding that may be filed against the appellant. It is for this reason the operative portion of the judgment and decree passed in the three suits requires modification by expunging the expression "anyone else claiming through him". This is because the appellant was not arrayed as a defendant in all the three suits and neither did she have an opportunity to contest the suits. The rest of the judgments and decrees which are passed in the respective suits impugned in these appeals, are not interfered with. It is made clear that the judgments and decrees impugned herein would not operate as against the appellant herein. Accordingly, the point for consideration is answered in favour of the appellant.

In the result, the appeals are allowed to the aforesaid extent. Parties to bear their respective costs.

In view of disposal of the appeals miscellaneous civil applications in each of the appeals would not survive for consideration and they also stand disposed of.