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2003(6) Supreme 655
SUPREME COURT OF INDIA
(From Karnataka High Court)
Shivaraj V. Patil & D.M. Dharmadhikari, JJ.
REMCO Inds. Workers House Bldg. Coop. Society -Appellant
versus
Lakshmeesha M. & Ors. -Respondents
Civil Appeal Nos. 992-993 of 1997
Decided on 28-8-2003
Counsel for the Parties :
For the Appellant : S.K. Kulkarni, Shanmukhappa, M. Gireesh Kumar, Ankur S. Kulkarni, Ms. Sangeeta Kumar, Advocates.
For the Respondents : S.S. Javali, Senior Advocate, S.N. Bhat, N.P.S. Panwar, D.P. Chaturvedi, Rishiraj Boorah, KH. Nobin Singh, Advocates.
Held : The basic issue of the effect of earlier grant dated 28-5-1965 [Ex. D-3] in favour of the tenant- Muniyappa on the subsequent grant dated 09-12-1969 [Ex. P1] in favour of plaintiff/respondent was neither addressed to by any of the courts below nor a decision has been rendered on the same. The issue of effect of Ex. D-3 on Ex.P1 and the identity of the land under the two grants is vital to the just decision of the case. The powers of the appellate court are not inhibited by the acts or omissions of the parties. Rule 25 of Order 41 of Code of Civil Procedure empowers the appellate court to frame an issue and remit it for trial which has been omitted to be framed and tried by the trial court and which appears to the appellate court essential to the right decision of the case. Rule 23A Order 41 introduced by CPC Amendment Act No. 104 of 1976 w.e.f. 1.2.1977 confers powers on the appellate court to remand whole suit for retrial. In our considered opinion, this is a fit case where this Court should exercise powers of remand under Order 41 Rule 25 read with Rule 23A of CPC. Consequently, we allow these appeals. The judgment and decree dated 30-10-1986 of the City Civil Court, Bangalore and the common judgment and decree dated 6-9-1996 of the High Court in appeals are set aside. The whole case is remitted to the trial court for deciding specific issues on the effect of grant dated 28-5-1965 [Ex. D-3] on the subsequent grant dated 9-12-1969 [Ex. P-1] and the identity of the land under the two grants. (Paras 18 & 19)
JUDGMENT
Dharmadhikari, J.-These two appeals arise out of common judgment dated 6-9-1996 passed by the High Court of Karnataka at Bangalore in cross appeals filed by the plaintiff and defendants [Regular First Appeal Nos. 191/1987 & 747/1986] against the judgment dated 30-10-1986 of City Civil Court, Bangalore in Civil Suit No. 5634 of 1980. The appellant which is a housing co-operative society of workers in REMCO Industries, was defendant No. 1 before the trial court.
2. The subject matter of dispute is the land in Survey No. 132/2 measuring 1 acre 3 guntas [now said to have been merged into Survey No. 305] situate in village Kempapur (now part of Bangalore City). The present appellant - Society of workers claims title to the land and it is submitted that it has built houses for its members on it. It is not in dispute that the suit land was an Inam land. Inams were abolished by Karnataka (Personal & Miscellaneous) Inams Abolition Act, 1954. Under the said Act, tenants in occupation of land are given preferential right to apply for Occupancy Rights and if they fall to do so, the Inamdar has been given a right to apply for grant of Occupancy Rights.
3. The plaintiff [respondent No. 1 herein] is the purchaser of suit land from Smt. Subbalakshamma, the Inamdar. One Muniyappa who claimed to be a tenant, applied on 22-4-1959 for grant of occupancy rights - amongst others on the suit land. His application for grant of Occupancy Rights for suit land in Survey No. 132/2 with other lands was allowed by the Special Deputy Commissioner by Order dated 28-5-1965 which was produced by the defendants before the trial court and was admitted as Ex. D-3 in the suit. During pendency of application for grant of Occupancy Rights, Muniyappa s heirs sold the suit land with other lands to REMCO factory in 1963. REMCO factory obtained permission for conversion of the use of land for non-agricultural purpose. The REMCO factory then sold the suit land with other 24 Acres of land to the present appellant - Society of its workers for construction of housing colony.
4. The plaintiff s case is that three years after the grant of Occupancy Rights to Muniyappa, by order dated 28-5-1965 of Special Deputy Commissioner [Ex. D-3], the Inamdar - Smt. Subbalakshamma made an application on 16-12-1968 to the Special Deputy Commissioner for grant of Occupancy Rights for the remaining area in the Inam land in her favour. In her application, she did not claim any specific land but prayed that "the court be pleased to determine the extent of land which she is entitled to be registered as an occupant and register her name as an occupant....."
5. On the basis of above application, the Special Deputy Commissioner passed an order dated 9-12-1969 [marked as Ex. P-1] granting Occupancy Rights to her amongst other lands in Survey No. 132/2 area 1 Acre 3 Guntas.
6. The plaintiff based her title and claimed possession of the suit land in Survey No. 132/2 on the basis of the grant of Occupancy Rights in her favour by the Order dated 9-12-1969 passed by Special Deputy Commissioner [Ex. P-1] in which the area in Survey No. 132/2 granted is 1 acre 3 guntas which is less than her claim in the suit to the land of area 1 acre 12 guntas.
7. It is true that in the written statement of the defendant No. 1, there is no specific reference to the order dated 28-5-1965 [Ex. D-3] passed by Special Deputy Commissioner granting Occupancy Rights to tenant Muniyappa in Survey No. 132/2 area 1 acre 3 guntas. In the course of trial, however, copy of the order dated 28-5-1965 passed by the Special Deputy Commissioner in favour of tenant Muniyappa was admitted in evidence and marked as Ex. D-3 without any objection by the plaintiff.
8. On the provisions of the Act under consideration, it is not disputed, as a legal position, by the counsel appearing for the parties that the Inamdar could be granted Occupancy Rights in Inam lands on which no tenant had been granted any Occupancy Rights. The necessary consequenc
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