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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
S. Sunil Dutt Yadav, J.
Smt. Noor Aftab Parveen, W/o Late Sri Syed Ali and ors. – Petitioners
Versus
Sri H.N. Chandrashekar, S/o Late H.G. Nagappa, Since deceased by his LR’s and ors. – Respondents
Regular Second Appeal No.864 of 2015
Decided On : 15-01-2021
Limitation Act, 1963 - Article 64, 27 and 113 – Civil Procedure Code,1908 - Order II , 41 - Rule 2 and 22(1) - Agreement of sale - Partition - Suit for recovery of possession - Plaintiffs are children and seek to assert their rights with respect to suit schedule properties that belonged to her - It is stated that suit schedule properties had fallen to share in proceedings for partition in O.S.No. filed against her brother - An agreement of sale was entered into between with respect to suit schedule properties and prospective purchaser hereinafter referred to as ''purchaser'' was put into possession under said agreement - It is pertinent to note that after appeal proceedings were resumed, consequent to order of remand filed a memo dated giving up his claim as regards the relief of specific performance while restricting claim only with respect to relief of adverse possession - On came to be dismissed - It was taken up in appeal in R.S.A.No. which also came to be dismissed –
Finding of the Court: purpose of recording a finding as to whether present suit is barred consequent to failure to lodge a counter claim in earlier proceedings and accordingly present suit was barred by principle of res judicata and so also Order II Rule 2 of CPC, it is identity of cause of action in earlier suit and present suit that needs to be looked into - Cause of action is one that is to be construed on reading of entire plaint and is not necessarily limited to cause of action as detailed in a particular paragraph of plaint - If identity of cause of action of previous suit and present suit is not established, it cannot be stated that present suit is barred - In absence of pleadings, further enquiry into merits of contention as encapsulated in substantial question of law would not arise - Accordingly, the reliance on judgments of Apex Court in case of Virgo Industries (Eng.) Private Limited v. Venturetech Solutions Private Limited and in case of Van Vibhag Karamchari Griha Nirman Sahakari Sanstha Maryadit (Registered) v. Ramesh Chander and Others, (2010) 14 SCC 596as regards substantive principle of law under Order II Rule 2 of CPC do not come to aid of defendant in absence of pleadings, without which no conclusive finding on point urged could be arrived at –
Result: Appeal is allowed
JUDGMENT :
This appeal is filed calling in question the judgment and decree dated 27.02.2015 passed by the I Additional District Judge, Chikkamagaluru in R.A.No.213/2011 affirming the judgment and decree dated 26.11.2010 passed by the Senior Civil Judge and Prl. JMFC, Tarikere in O.S.No.95/2006, whereby the suit filed by the plaintiffs seeking recovery of possession of suit schedule properties from the defendants and for award of mesneprofits from the date of suit till the date of delivery of possession, has been dismissed.
The parties are referred to by their ranks before the trial Court for the purpose of convenience.
1. Facts of the case:-
(ii) As the sale transaction did not culminate in a sale deed and as purportedly the purchaser did not come forward, Smt.Tairunnisa filed O.S.No.53/1972 against Sri H.C.Nagappa seeking for the relief of permanent injunction. The said suit however came to be dismissed on 14.12.1973 while recording the finding that suit for injunction was not maintainable as it was proved that possession was delivered to Sri H.C.Nagappa pursuant to the agreement of sale.
(iii) In the interregnum, a suit came to be filed by loanee Smt.Rudramma to recover the money advanced by her to Smt.Tairunnisa on account of default in repayment. In the course of said proceedings in Execution Petition No.69/1982, the schedule properties were attached. Sri H.C.Nagappa, the purchaser had filed Misc.Case No.14/1983 and obtained release of the schedule properties from attachment as per the order dated 25.07.1987.
(iv) It is thereafter that on 01.03.1989, Sri H.C.Nagappa instituted a suit in O.S.No.237/1989 for specific performance against Smt.Tairunnisa, which came to be dismissed on 29.06.1991. Aggrieved by the same, R.A.No.50/1991 came to be filed challenging the judgment dismissing the suit. It is pertinent to note that an application came to be filed under Order VI Rule 17 of CPC to amend the plaint to include the relief of declaration of title by way of adverse possession. In the said appeal proceedings, the judgment and decree in O.S.No.237/1989 came to be set aside remanding the matter to the trial Court, which order of remand was subsequently set aside with a direction that appeal was to be decided within a period of five months as per the order passed in MSA No.142/1994 preferred against the judgment and decree in R.A.No.50/1991.
(v) It is pertinent to note that after the appeal proceedings were resumed, consequent to the order of remand, Sri H.C.Nagappa filed a memo dated 03.03.2000 giving up his claim as regards the relief of specific performance while restricting the claim only with respect to the relief of adverse possession. On 17.01.2005, R.A.No.50/1991 came to be dismissed. It was taken up in appeal in R.S.A.No.1034/2005, which also came to be dismissed on 12.12.2005.
(vi) However, this Court while disposing of the second appeal had observed that once a person claims to be in possession pursuant to the agreement of sale, the claim of adverse possession could not be raised. It was further observed that the claim regarding adverse possession even
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