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2017 Supreme(Kar) 968
IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH
K.N. PHANEENDRA, J.
Sri Channappa Hanamant - Appellant
Vs.
Kallappa S/o Mallappa Thambad & Ors. - Respondents
Regular Second Appeal No. 1227 of 2005
Decided On : 10-11-2017
Advocate Appeared:
For The Appellant : Sri Sanjeevkumar C Patil, Sri M.B. Nargund, Smt. Sona Vakkund
For the Respondents: Sri D.P. Ambekar
Headnote:KARNATAKA LAND REFORMS ACT, 1961 [K.A. No. 10/1962] - Sections 14, 25 - Surrender of tenancy - Ancestors of plaintiff allegedly surrendering inheritable tenancy rights and possession of land, to erstwhile owner - Erstwhile owner thereafter executing sale deed in favour of defendant - No material on record to show that after alleged surrender of tenancy rights, possession of land transferred to erstwhile owner - Continuous possession of plaintiff much prior to filing previous suit for injunction, recognized by Courts - Sale deed executed by erstwhile owner in favour of defendant cannot lead to inference of transfer of possession - Sale deed bereft of any possession over property cannot confer valid title on defendant over property - Tenancy rights of plaintiff would merge with ownership rights by virtue of sale deed executed subsequently.
LIMITATION ACT, 1963 [C.A. NO. 36/1963] - Section 14 - Exclusion of time - Bona fide proceedings in Court without jurisdiction - At time of filing earlier suit, plaintiff could not claim declaration, as he acquired title over property subsequently - Title of plaintiff constantly denied by defendant - In matter involving challenge to title of plaintiff, mere suit for injunction would not be maintainable - Plaintiff in 'good faith' taking efforts to convert injunction suit into declaratory suit, as Court may not have jurisdiction to grant injunction in absence of declaration relief - Held, Plaintiff making efforts in 'good faith' entitled for exclusion of time spent in pursuing bona fide proceedings. Suit of plaintiff is not barred by limitation.
CODE OF CIVIL PROCEDURE, 1908 [C.A. No. 5/1908] - Order 2, Rule 2 - Bar as to second suit on same cause of action - Earlier suit for permanent injunction restraining defendant from interfering with plaintiff's possession as protected tenant - Subsequent suit claiming absolute ownership of suit property - On date of filing previous suit, right to claim declaration on basis of subsequent sale deed in his favour, was not available - Prayers in both suits, altogether different - Plaintiff on execution of sale deed in his favour, making efforts to convert subsequent suit to that of declaratory suit by withdrawing earlier suit - Remedy of declaration as pleaded in subsequent suit, and relief of injunction in earlier suit are based on totally different cause of action - Statutory bar under Order 2, Rule 2, held, not applicable.
Every suit must include whole of claim to which plaintiff is entitled to, in respect of any cause of action. Plaintiff has option to relinquish any part of his claim. If plaintiff omits to sue or intentionally relinquishes any part of claim, he cannot sue for such omitted claim in subsequent proceedings. Any omission claimed with leave of Court, is not barred under Order 2, Rule 2.
CODE OF CIVIL PROCEDURE, 1908 [C.A. No. 5/1908] - Order 7, Rule 11(a), Order 2, Rule 2 - Rejection of plaint - Relief sought by plaintiff in earlier proceedings and subsequent proceedings based on different cause of actions - Expression 'cause of action' means every fact necessary for plaintiff to prove his right or grievance - On date of filing previous suit, cause of action to claim declaration on basis of subsequent sale deed in his favour, was not available - Subsequent suit based on altogether fresh cause of action, cannot be rejected.
CODE OF CIVIL PROCEDURE, 1908 [C.A. No. 5/1908] - Order 23, Rule 2 -Withdrawal of suit - Grant of permission to withdraw suit with leave to file fresh suit for same relief is distinct from simply permitting plaintiff to withdraw suit - Words 'or other cause of like nature' has to be construed with words 'defect of jurisdiction' - Defect must be of such nature that makes Court impossible to entertain suit or to decide case on merits.
The present Appeal is preferred against the concurrent findings given in O.S. No. 585/1989 dated 15.06.2002 on the file of Addl. Civil Judge (Jr.Dn.) Bijapur, confirmed in R.A.No.412/2004 dated 05.03.2005, on the file of Fast Track Court-I, Bijapur.
2. On 09.12.2005, this Court has framed the following substantial question of law :-
“Whether the finding of the courts below that suit is not barred by time since earlier suit in O.S.No.34/69 was permitted to be withdrawn with liberty to file a fresh suit is perverse and arbitrary, being contrary to law as no material has been produced to show that the suit was permitted to be withdrawn with liberty to file fresh suit.”
3. At the time of submitting the arguments, the learned counsel for the appellant has strenuously contended that the trial Court and the first appellate Court have not properly considered the legal point with regard to surrender of the tenancy by Sri Shivappa and as well as the effect of the earlier sale deed executed by Smt Venkubai in favour of defendant No.2. Therefore, another substantial question of law also to be framed by this Court. After hearing both the parties on merits, I prefer to frame one more substantantial question of law in the following manner:-
“Whether the trial Court and the first appellate Court have committed any serious error in considering the effect of the earlier registered sale deed executed by Smt. Venkubai in favour of defendant No.2 dated 21.09.1967 and regarding the effect of the surrender of the land by the Tenant as alleged by the defendants in favour of Smt.Venkubai?”
4. In order to answer the above said substantial questions of law, it is just and necessary for this Court to understand the case of the plaintiffs and the defendants, as per their pleadings before the trial Court and grounds urged before the first appellate Court. Therefore, it is just and necessary to have the brief factual aspects of the case, as pleaded by the parties before the trial Court.
5. The ranks of the parties is mentioned as per their ranks before the Trial Court. The plaintiff No.1 Sri Kallappa Mallappa Thambad is none other than the son of the second plaintiff by name Bhimawwa. It is the claim of the plaintiffs that the suit lands bearing R.S.No.527/1 and 527/2, measuring 06 acres and 12 guntas, originally belonged to one Smt Venkubai W/o Kulkarni of Sarwad, having inherited from her husband in the year 1947. The said Smt Venkubai died in the year 1974, leaving behind defendant No.1 Smt Sushilabai and one Smt Indirabai as her heirs. The said Smt Indirabai is none other than the mother of defendant Nos.3 to 6. The said Smt Venkubai was the absolute owner in possession and enjoyment of the properties. Both the daughters had no right in the suit land.
6. It is the further contention of the plaintiffs that they have purchased the suit lands on 10.05.1972 for valuable consideration of Rs.10,000/- from Smt Venkubai under a registered sale deed. To the said sale deed the mother of defendant Nos.3 to 6, Smt Indirabai was also a joint executant. Plaintiff No.1 was a minor at that time represented by plaintiff No.2.
7. The plaintiffs’ further contention is that they and their ancestors were in possession of the land much prior to the execution of the sale deed as their predecessor were cultivating the said land for a long time as tenants. One Sri Shivappa was the grand-father of plaintiffs and father-in-law of plaintiff No.2, was cultivating the land as a protected tenant till his death, in the year 1969-70. Thereafter, his son Sri Mallappa continued the cultivation and he died in the year 1971. Thereafter, the plaintiffs continued to be in possession, cultivating the same as tenants. As the facts stood thus, the said Smt Venkubai filed an application for resumption of the land from the erstwhile tenant Sri Shivappa. But the said application was rejected on 07.02.1969 by the concerned Tahasildar, and as such Smt Venkubai never acquired the possession of the
