2016 Supreme(Kar) 233

IN THE HIGH COURT OF KARNATAKA AT BENGALURU
N. KUMAR & S. SUJATHA, JJ.
K.V. SHIVAKUMAR & ORS. - APPELLANTS
Vs.
NATIONAL INSTITUTE OF MENTAL HEALTH AND NEURO SCIENCES (DEEMED UNIVERSITY) & ORS. - RESPONDENTS
R.F.A.No.337 of 2008
Decided On : 06-06-2016

Headnote:CODE OF CIVIL PROCEDURE, 1908 - Section 11: [N. Kumar & S. Sujatha, JJ] Res judicata - Suit for bare injunction - Finding as to title of plaintiff was incidental - Subsequent comprehensive suit for declaration of title and permanent injunction - Whether res judicata applies - Held, Where in a suit for bare injunction, the Court went into question of title of both parties thought there was no issue framed regarding question of title of plaintiff to suit property, the suit was also not valued for the purpose of declaration, and the question of title was gone into, by the court, incidentally, such finding as to title in earlier suit, would not operate as res judicata in subsequent suit. In the earlier suit, the question was whether the plaintiffs were in lawful possession of the property. Neither the title of the plaintiffs in the earlier suit nor the title of the plaintiff in the present suit were directly and substantially in issue in the earlier suit as it was a suit for bare injunction. The only issue which arose for consideration was whether the plaintiff was in lawful possession of the property or not? In order to answer that issue, count went into the question of title incidentally. In order to find out whether the plaintiff was in lawful possession or not, it was unnecessary for the Court to record a finding regarding title of the plaintiff to the property. It is settled law that if a person who having no title to the property is in lawful possession, he is entitled to a decree of permanent injunction restraining the third parties and even the true owner from interfering with his possession except in the manner known to law. Where title to the property is the basis of the right of possession, the decision on the question of possession is res judicata on the question of title to the extent that adjudication of title was essential to the judgment. But, where the question of right to possession was the only issue actually or necessarily involved, the judgment is not conclusive on the question of ownership or title.

       CODE OF CIVIL PROCEDURE, 1908 - Order 2, Rule 2: [N. Kumar & S. Sujatha, JJ] Same cause of action - Earlier suit for bare injunction - Filed against defendants who were also arrayed as defendants in present suit - Cause of action was public and legal notice - Defendants denied in earlier suit right of plaintiff, however, they did not state what was their right in property and therefore, plaintiff had to protect his possession over his property - Plaintiff was thus, justified in bringing suit for bare injunction - Application for temporary injunction filed in that suit and appeal therefrom also dismissed - Therefore, comprehensive suit for declaration of title and injunction was filed by him - Held, Fresh suit not barred under Order 2, Rule 2 as sale deeds were executed against defendants in present suit, such cause of action being different from earlier suit.

        The correct test in cases falling under Order 2, Rule 2, is whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation for the former suit.

        Where the present plaintiff filed suit for a judgment and decree of permanent injunction restraining the defendants from interfering with the plaintiff- s peaceful possession and enjoyment of the suit schedule property and in the said suit he had arrayed some defendants who were also defendants in present suit for declaration of title and permanent injunction who claimed as purchasers of suit schedule property and the cause of action was public and legal notice by defendants therein, the plaintiff was justified in bringing a suit for bare injunction, when the defendants in the suit only denied the right of the plaintiff and they did not state what was their right in the property, the plaintiff being the owner in possession of the property had to protect his possession over the property, as there was an attempt to take up a housing project under a joint venture and as the application for temporary injunction filed in such earlier suit and appeal thereagainst was dismissed, the plaintiff filed the present comprehensive suit for declaration of title and consequential relief, it would not be barred under Order 2, Rule 2 because the clause of action in the present suit is when the plaintiff was not able to get an interim order of injunction and the plaintiff came to know that sale deeds have been executed in favour of defendants the plaintiff was constrained to file the present suit against the defendants in the earlier suit.

       CODE OF CIVIL PROCEDURE, 1908 - Order 6, Rule 4: [N. Kumar & S. Sujatha, JJ] Applicability - Held, Without seeking to setting aside a decree passed earlier either on the ground of fraud or collusion, it is open to the party against whom it is pressed into service to point out to the Court that it is obtained by fraud or collusion. In such circumstances, Order 6, Rule 4 is not attracted. What is required is the material on record should demonstrate to the Court as to how a decree has been obtained by fraud. If the undisputed facts in the case demonstrate the said fact, the Court need not give weightage to such a decree. Even without annulling the decree or declaring that the decree is not binding, the legal effect of a decree could be determined and the case could not be decided on merits on the basis of the material produced before the Court.

        Where in an earlier suit for bare injunction, the defendants set up settlement deed claiming title to the property which was actually acquired by the Govt. and filed case and which was allowed by the court taking away valuable right of the plaintiff (in present suit) and it was not even challenged before high court by officials of plaintiff institution and thus, they were not diligent in defending the suit, however, one of the officials of plaintiff institution, clearly stated about the acquisition proceedings, payment of compensation to claimants, the taking of possession by the Government and allotment of the land to the plaintiff besides delivery of possession and in the process he has clearly exposed the fraud played by the defendants in obtaining the decree for injunction, and also the laches on the part of the persons in charge of the plaintiff in the earlier suit, the Court cannot be oblivious to the aforesaid conduct of the parties and the circumstances under which the decree was passed in the earlier proceedings.

       CODE OF CIVIL PROCEDURE, 1908 - Order 23, Rule 1(4): [N. Kumar & S. Sujatha, JJ] Bar for second suit, under - Suit for decree of permanent injunction restraining defendants from interfering with the plaintiff’s possession - Cause of action for said suit was threat of interference by way of putting up construction on plaint schedule property by taking up housing project under a joint venture - Suit was withdrawn without permission of court - Cause of action for second suit for title and injunction was denial of plaintiff’s title and finding in earlier proceedings that plaintiff is not in possession - Subject- matter of both suits were totally different - Cause of action for both suits totally different - Bar for filing second suit under Order 23, Rule 1(4) not applicable.

       LIFE INSURANCE CORPORATION ACT, 1956 - Articles 58, 65: [N. Kumar & S. Sujatha, JJ] Suit for declaration of title and for possession - Identity of property was in dispute - In such case main relief would be possession - In order to get possession plaintiff had to seek declaration because incidentally their title to the property is denied - Article 65 and not Article 58 would be applicable. Suit filed within 12 years from the date of passing of decree in earlier suit for injunction is not barred by limitation.

       SPECIFIC RELIEF ACT,1963 - Section 34: [N. Kumar & S. Sujatha, JJ] Suit for declaration of title - Evidence on record showing that land was acquired in year 1944, possession was taken by Government and award was also passed - Such facts was clearly admitted by defendants - Plaintiff could not produce documentary evidence as same were destroyed by civil court in which proceedings for enhancement of compensation were filed - Plaintiff-institution was only beneficiary and not party to such proceedings - Government allotted land to plaintiff institution - Held, Allotment could not be challenged on ground that deed was not registered as Section 17(1)(b) and (c) of Registration Act was not applicable. Finding of court on question of title cannot be interfered with.