IMPORTANT POINT
Suit in representative capacity is not maintainable where Plaintiffs in present suit were not parties to previous suit.

JUDGMENT

R. MAHADEVAN, J.

Leave granted.

2. The appellant has preferred this appeal assailing the judgment and final order dated 01.10.2021 passed by the High Court of Karnataka at Bengaluru [Hereinafter referred to as “the High Court”] in R.S.A.No.2823 of 2010 thereby setting aside the judgment and decree passed by the Presiding Officer, Fast Track Court-II, Tumkur [Hereinafter referred to as “the First Appellate Court”] on 31.08.2010 in R.A.No.478/2009 (Old R.A.No.67/2007) and decreeing the suit in O.S. No. 505 of 1989 filed by the plaintiffs before the Principal Civil Judge (Junior Division), Tumkur [Hereinafter referred to as “the trial Court”].

3. The Respondent No.1 is the third plaintiff; the appellant herein is the first defendant; and the Respondent Nos.2 and 3 are the Defendant Nos.3 and 2 in the suit.

4. The aforesaid suit in O.S.No.505/1989 was filed by the Plaintiff Nos.1 to 4 who are former students of Government Higher Secondary School, now known as Government Junior College, Tumkur, along with others, in a representative capacity before the trial Court, praying for the following reliefs:

a) For a declaration that the decree obtained by the 1st defendant in O.S.No.80/1978 on the file of the Munsif Court, Tumkur is not binding on the 3rd defendant or anybody interested as a rate paying citizen of the State of Karnataka including the plaintiffs.

b) For further declaring that the 3rd defendant is the rightful owner of the Suit property.

c) For a direction to the 1st defendant to deliver the possession of the Suit property to the Government / 3rd defendant;

d) For a consequential injunction restraining the 1st defendant from interfering with the possession of the 3rd defendant; and

(e) For costs and such other reliefs.

Vide order dated 24.01.1994, at the instance of the plaintiffs, amendment was ordered and clause (d) of the prayer made in the suit was deleted.

5. Upon examining both oral and documentary evidence, viz., PW1 to PW2 and DW1 and Exs.P1 to P45 and Exs.D1 to D49 and after hearing both sides, the trial Court vide judgment and decree dated 28.02.2007, partly dismissed and partly allowed the suit in the following terms:

(i) Decree passed in O.S. No. 80/78 on the file of Munsif Court, Tumkur, filed by Defendant No.1 is partly binding effect in respect of the relief of permanent injunction and accordingly, the said suit is partly decreed, as the said decree is not binding on Defendant No.3 or anybody interested as a rate paying citizens of the State of Karnataka including the Plaintiffs as the said suit was not for the relief of declarations.

(ii) Declared that Defendant No.3 is the rightful owner of the suit scheduled property and they are entitled to get the possession of the same from the Defendant No.1 as per the due procedure of law.

6. Challenging the aforesaid judgment and decree passed by the trial Court, the appellant / Defendant No.1 filed a Regular Appeal bearing No.478 of 2009 before the First Appellate Court. Vide judgment and decree dated 31.08.2010, the First Appellate Court allowed the said appeal and set aside the judgment and decree passed by the trial Court in O.S.No.505 of 1989. Aggrieved by the same, the Respondent No.1 / third plaintiff preferred a Regular Second Appeal bearing No.2823 of 2010.

7. Vide judgment and final order dated 01.10.2021, the High Court allowed the second appeal and set aside the judgment and decree passed by the First Appellate Court, and decreed the suit as prayed for. The High Court also directed that the possession of the suit schedule property consisting of the school building operated by the Government and any vacant space in possession of Defendant No.1, be delivered to the Government. Aggrieved by the same, the appellant / Defendant No.1 is before us with the present Civil Appeal.

8. When the matter was taken up for hearing on 16.12.2022 [Issue notice to the respondents. In the meanwhile, the status quo existing as on today, to continue.], this Court granted an order of