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SUPREME COURT OF INDIA
B.R. GAVAI, C.T. RAVIKUMAR, JJ.
Shivshankara & Anr. – Appellants
Versus
H.P. Vedavyasa Char – Respondent
Civil Appeal No. 10215 of 2011
Decided On : 29-03-2023
(A) Civil Procedure Code, 1908 – Order XLI Rule 23 – Remand of matter – Court to which case is remanded has to comply with order of remand and acting contrary to order of remand is contrary to law – Order of remand has to be followed in its true spirit – Direction to trial Court for recording evidence and submitting it along with report will not efface evidence already on record or will not be having effect of setting aside of judgment and decree passed by trial Court. (Para 7)
(B) Civil Procedure Code, 1908 – Order VI Rule 17 – Amendment of plaint – Dealing with prayers for amendment of pleadings Courts should avoid hyper technical approach – But, same cannot be granted on mere request through application for amendment of written statement, especially at appellate stage, after adverse decree and without a genuine, sustainable reason. (Para 14)
(C) Transfer of Property Act, 1882 – Section 52 – Doctrine of lis pendens – Right of successful party in litigation in regard to that property would not be affected by alienation, but it does not mean that as against transferor transaction is invalid – Prohibition by application of principles of said doctrine would take its effect with institution of suit. (Para 16)
(D) Property Law – Title – When facts disclose no title in either party, at relevant time, prior possession alone decides the right to possession of land in assumed character of owner against all world except against rightful owner – Original defendants failed to raise sufficient and appropriate pleadings in written statement that they have better right for possession of suit properties – No amount of proof offered without appropriate pleadings would have any relevance – When concurrent findings of courts below are outcome of rightful consideration and appreciation of materials on record they do not call for any interference. (Paras 30, 39 and 40)
(E) Civil Procedure Code, 1908 – Order XXII Rule 1 – Abatement of suit – In the event of death of any of plaintiffs, estate is fully and substantially represented by other sharers as owners of suit property – Same analogy is applicable in a case where even in event of death of one of defendants, when estate/interest was being fully and substantially represented in suit jointly by other defendants along with deceased defendant and when they are also his legal representatives – In such cases, by reason of non-impleadment of all other legal heirs consequential to death of the defendant, defendants could not be heard to contend that suit should stand abated on account of non-substitution of all other legal representatives of deceased defendant. (Paras 35 and 36)
Facts of the case:
Defendant Nos. 1 and 2 in O.S. No.6456 of 1993 on file of the Court of XIV Additional City Civil Judge, Bangalore, filed this appeal under Article 136 of Constitution of India, calling in question the judgment and decree dated 09.09.2010 passed by High Court of Karnataka at Bengaluru in RFA No.1966 of 2007. They are the sons of the third defendant in the said suit, who died during its pendency.
Findings of Court:
Taking into account the fact that the suit was indisputably filed based on prior permission and illegal dispossession we do not find any reason to place sale deed executed (even if by the owners) in favour of the deceased second appellant to displace concurrent findings of the courts below on the entitlement of the respondent herein/the plaintiff for a decree as granted by the trial court and confirmed High Court. In the said situation, this appeal has to fail.
Result : Civil Appeal dismissed.
JUDGMENT :
C.T. Ravikumar, J.
1. The defendant Nos. 1 and 2 in O.S. No.6456 of 1993 on the file of the Court of XIV Additional City Civil Judge, Bangalore, filed this appeal under Article 136 of the Constitution of India, calling in question the judgment and decree dated 09.09.2010 passed by the Hon’ble High Court of Karnataka at Bengaluru in RFA No.1966 of 2007. They are the sons of the third defendant in the said suit, who died during its pendency. They filed the stated first appeal on being aggrieved and dissatisfied with the judgment and decree dated 04.07.2007 in O.S. No.6456 of 1993. During the pendency of the captioned appeal, the second appellant died and consequently his legal heirs were impleaded as additional appellants 2.1 to 2.4. Ergo, in this appeal, hereafter the original first appellant and the impleaded legal 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 been described as ‘A schedule’ and out of which a portion measuring 35’ x 40’, within the boundaries mentioned, has been described as ‘B schedule’. ‘C schedule’ is the portion of the premises bearing No. B-91 as described therein. To be precise, the prayers in the amended plaint read as under:-
"(a) a judgment and decree of perpetual injunction against the defendants 1 to 3 directing the defendants to restore the possession of the schedule premises to the plaintiff and not to interfere in the plaintiffs’ lawful possession and enjoyment of the schedule property in any manner whatsoever.
(b) A judgment and decree against the defendants for mandatory injunction directing the defendants to restore the possession of the 'B' schedule property, which is marked 'ABCD' in the annexed sketch, and there may be decree for permanent injunction against the defendants for 'CDEF' portion which is marked as 'C' schedule to the plaint and there may be a decree for the enquiry into the mesne profits with Order XVIII Rule 12 of CPC, and also there may be a decree for the cost of the suit, with such other relief or reliefs as this Hon'ble Court deems fit in the circumstances of the case.:
3. Obviously, the defendants did not challenge the order allowing the amendment of the plaint and also did not file additional written statement after the amendment.
4. The Trial Court framed the following issues based on the pleadings on both sides :
(1) Whether the suit is bad for mis-joinder or non-joinder of necessary parties?
(2) Whether the Court fee paid on the plaint is insufficient?
(3) Whether the plaintiff is entitled for possession of the suit schedule premises?
5. Though the plaintiff/respondent herein adduced oral and documentary evidence in support of his claims, the defendant therein did not lead any evidence, at all. The Trial Court, after considering the evidence and the provisions of law applicable partly decreed the suit as per judgment dated 04.07.2007, holding that
(1) Remand of matter – Order of remand has to be followed in its true spirit – Direction to trial Court for recording evidence and submitting it along with report will not efface evidence already on ....
Adverse Possession – When in a suit simpliciter for a perpetual injunction based on title, defendant pleads perfection of his title by adverse possession against plaintiff or his predecessor, plainti....
Suit does not abate upon death of one plaintiff if the right to sue survives; legal representatives need not be substituted if the cause of action continues.
The main legal point established in the judgment is that the trial court has the discretion to allow amendments to pleadings at any stage of the proceedings, provided it does not cause injustice or p....
Partial abatement of a suit occurs upon the death of a plaintiff when the interests in the suit property are separate and distinct, allowing the remaining plaintiffs to continue the legal proceedings....
The judgment emphasizes the importance of allowing the amendment of pleadings and production of additional evidence to achieve substantial justice, as provided under Order VI Rule 17 CPC and Order 41....
Amendments altering the fundamental nature of a case are impermissible; evidence must align with pleadings for consideration in civil litigation.
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