TaxTMI 
TaxTMI 
2023 (3) TMI 1414
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.... 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 be....
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....ntiff would be entitled to recover possession of 'B' schedule property from the 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 da....
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.... 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....
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....Code of Civil Procedure by the appellants to raise additional grounds in this appeal as ground No. 16C & 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? (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 non-joinder of necessary parties viz. point No.4, it was held in the negative. Based on conclusi....
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....dduce additional evidence was filed raising the contention that they were not given opportunity to adduce evidence. The said appeal came to be disposed of by the High Court as per judgment and decree dated 29.10.2007, whereunder the said application was allowed and the appellants therein/the original defendants 1 and 2, were given permission to lead additional evidence before the Trial Court. Furthermore, an opportunity to cross-examine the said defendants were given to the respondent herein/the plaintiff. A direction was also given to the Trial Court thereunder to dispose of the case on merits in so far as 'B' schedule property is concerned. It is aggrieved by the said judgment and decree dated 29.10.2007 of the High Court that the respondent herein/the plaintiff filed a Civil Appeal No.5201 of 2009 arising out of SLP (C) No.1279 of 2008 before this Court and which came to be disposed of modifying the judgment and decree of the High Court dated 29.10.2007 by directing the Trial Court to record the evidence 'as directed by the High Court' and transmit the records to the First Appellate Court viz., the High Court and such other directions as mentioned hereinbefore. The impugned orde....
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.... and decree of the High Court dated 29.10.2007 in terms of the judgment of this Court in Civil Appeal No.5201 of 2009. Pursuant to the judgment in the said Civil Appeal by this Court, in terms of the surviving directions of the High Court in its judgment dated 09.09.2010, which virtually merged with the judgment in C.A. No.5201 of 2009 the second defendant viz., the deceased second appellant herein filed his affidavit in lieu of his examination-in-chief on 16.09.2009 and got marked Exhibits D-1 to D-9. He was then cross examined. No other witnesses were examined on behalf of the defendants. 15. The materials on record and the impugned judgment passed by the High Court would reveal that the original defendants 1 and 2, who were the appellants before the High Court raised various contentions in support of their prayers for amendment of the written statement as also for permission to raise additional grounds in the appeal, before the High Court and they were also reiterated before us. It is contended that the delay in seeking such prayers by itself cannot be a reason to reject the prayers made in the stated Misc. Civil Applications and further that allowing such prayers would not h....
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....he High Court to dispel them is that the first defendant/the first appellant herein did not enter the box and the deceased second defendant/the second defendant while being examined as DW-1, during his chief examination itself admitted that the respondent herein/the plaintiff was then in possession of the suit schedule 'A' property (which also includes 'B' schedule) viz., in and vide paragraph 8 of his affidavit filed in lieu of chief examination. That apart, it was noted that during the cross-examination DW-1 admitted that as on the date of Exhibit D-1, possession of the property was not taken as Sriman Madhwa Sangha assured to secure possession and hand it over to the first defendant. In the circumstances thus 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, we do not find any reason or justification to interfere with it. 16. To fortify our view, we will consider certain other aspects as well. In the wake of the above-mentioned admission by DW-1, the attempt to bring in new plea by amending the written statement that the second defendant (the deceased second ....
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....ould have, in effect, necessitated framing of fresh issues and constrained the parties to agitate their rights as if in a de novo trial. We referred to the aforesaid aspects 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. 17. It is also not inappropriate in this context, to refer to another indisputable position. The materials on record would reveal that before passing of the judgment and decree the trial Court, afforded several opportunities to the defendants to file additional written statement but they failed not only to file additional written statement but also failed to file any application for amendment of the written statement before the trial court during the pendency of original proceedings before it. It is a fact that the defendants filed an application for amendment of the written statement before the trial Court when the matter was sent to th....
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....n before an amendment is granted is the delay in making the application seeking such amendment and, if made at the appellate sage, the reason why it was not sought in the trial court." 20. It is to be noted that in the case on hand also as stated earlier, 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 No. 1966 of 2007 as per judgment dated 29.10.2007 and also before this Court in CA No. 5201 of 2009 directed against the said judgment. 21. In the afore-mentioned contextual situation, the impact and effect of the order of remand passed by this Court in CA No.5201 of 2009, assumes great relevance. We have considered and come to a conclusion on this aspect as can be seen from paragraph 5 (supra). If the judgment of the High Court in RFA No.1996 of 2007 was not modified by this Court as per judgment in CA No.52001 of 2009 it would have ha....
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....n afresh with certain specific directions, the jurisdiction of the trial Court after remand depends upon the terms of the order of remand and the trial Court cannot either consider matters other than those specified in the remand order, or enter into questions falling outside its limit. There was, therefore, no jurisdiction in the learned trial Judge to allow an amendment of the pleadings which was outside the scope of the remand order." 23. In the totality of the circumstances, especially 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 the reasons mentioned hereinbefore we see no reason at all to hold any perversity or illegality with the rejection of the prayer for amendment of the written statement. 24. We have noted the points of agreement in the judgments of the courts below. On the questions as to maintainability of the suit, whether the suit is bad for nonjoinder 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....
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.... such a suit is not maintainable. It is also a fact that after carefully scanning the pleadings and evidence of the defendants, the High Court, as per the impugned judgment, held that what is raised by the defendants to resist the case of the plaintiff / the respondent herein is nothing but a plea that attracts the principle of "jus tertii", which in Latin means 'right of a third party.' In fact, it is a plea against a claim of interest in property, raised in defence that a third party has a better right than the claimant. In this context, it is relevant to refer to R.F.V. Heuston, Salmond on the Law of Torts 4 (17th Edn., 1977), in which it was observed that no defendant in an action of trespass can plead the 'jus tertii' that the right of possession outstanding in some third person. Obviously, to buttress their contention that the suit is maintainable, based on the contention of the defendants that the right of possession is outstanding in some third person that attract the principal of 'jus tertii' and that they, therefore, are not justified in challenging the maintainability of the suit the defendant relied upon the decision of this Court in Krishna Ram Mahale (Dead), By LRs v.....
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....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 valet praeter eur cui ius sit possessionis' (he that hath possession hath right against all but him that hath the very right)". 31. In the light of the factual position obtained in this case and legal position settled in the decisions referred supra we are of the firm view that the High Court is correct in holding the question of maintainability of the suit in the affirmative and in favour of the respondent herein. 32. Now, we will consider 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- Hanumaiah. 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 app....
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.... 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. 34. In the contextual situation the following decisions assumes relevance. The decision in Bhurey Khan v. Yaseen Khan (Dead) By LRs. And Ors.[1995 Supp. (3) SCC 331] was referred to in the impugned judgment by the High Court to reject the aforesaid contention of the appellants therein viz. original defendant Nos. 1 and 2. In paragraph 4 of the decision in Bhurey Khan's case, this Court held thus:- "......the estate of the deceased was thus sufficiently represented. If the appellant would not have filed any application to bring on record the daughters and the widow of the deceased the appeal would not have abated under Order 22 Rule 4 of the Code of Civil Procedure as held by this Court in Mahabir Prasad v. Jage Ram [(1971) 1 SCC 265 : AIR 1971 SC 742] . The position, in our opinion, would not be worse where an application was made for bringing on record other legal representatives but that was dismissed for one or the other reason. Since the estate of ....
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....e 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, we do not find any 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 contention that the suit was bad for non-joinder of necessary parties of all his legal heirs/representatives also has to fail. 37. 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 Sri. Hanumaiah should fail. We have already noted the case which the defendants sought to bring in, without taking up necessary pleadings in the written statement filed in the suit. 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 appellan....
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....e has been adduced or a finding of fact has been recorded by the court, it is just to be ignored. Though it may be a different case where in spite of specific pleadings, a particular issue is not framed and the parties having full knowledge of the issue in controversy lead the evidence and the court records a finding on it." 39. In such circumstances, we have 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 said finding. 40. After considering and answering the questions, mentioned as above, we bestowed our anxious consideration to find 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 us....