Murgod, J.
1. Defendants 1 and 2 in Original Suit No. 582 of 1982 are the appellants in this appeal, plaintiff in O.S.No.582 of 1982 is respondent No 1. Defendants 3 to 6 and 7 to 9 are respondents 2 to 8. Parties in this Appeal are referred to by their ranks in the trial Court.
2. Plaintiff - B.K. Lakshmaiah filed a Suit for declaration that he is absolute owner of the plaint schedule property and for permanent injunction restraining the defendants 1 and 2 from interfering with the peaceful possession and enjoyment of the plaint schedule property with costs and other reliefs as deemed fit.
3. The schedule property is described as portion of Survey No. 3 of Bommmanahalli village, Bangalore South Taluk, measuring one acre twenty eight guntas with boundaries given in the schedule with standing crops of horse-gram etc.
4. The plaint averments are that the plaintiff and defendants 3 to 6 form members of a joint Hindu family and they possessed joint family properties of which the plaint schedule property is one and they inherited these properties from the plaintiff's grand-father Bovigooga who is shown as Bingooba in taluk and revenue records and who was the original barawardar Thoti of Bommanahalli village and after him, his only son Kayerappa succeeded to the hereditary office of Thoti and also to the service inam lands and other properties which belonged to his father by Government grant and were under his cultivation. Kaverappa died in or about 1959. During his old age, he had attorned his son, the plaintiff to carry on the duties of the thoti and to look after and manage the family and its properties. The plaintiff and his family members became the owners of the Service Thoti Inam lands in survey No. 3 measuring 5 acres 4 guntas of which the suit property forms a portion. Under the Karnataka Village Offices Abolition Act, the thoti inam lands were resumed to the Government and the plaintiff and his son - defendant-3 applied for the regrant. The Assistant Commissioner enquired into the matter and by order dated 24-5-1972 granted to the plaintiff and third defendant remaining land in survey No. 3 measuring 1 acre 28 guntas after finding that 1 acre 27 guntas of land was sold by the plaintiff to Ramalingam and an extent of 100'x150' was sold to Ramarathnam by the plaintiff. The schedule land was in possession of the plaintiff and the members of the joint family. One of the conditions of the re-grant was that the land should not be alienated except for partition amongst the members of the joint family. The plaint schedule land was in lawful possession and enjoyment of the plaintiff and members of his family. The third defendant for purposes of necessity, appears to have hypothecated the property to Chikkakaverappa, K. Muniyappa, C. Muniyappa and C. Krishnapa under a deed dated 23-10-1972. Though it is styled as a sale deed, no sale took place under it. The third defendant had no right to sell the property as the plaintiff was the head of the family Possession of the plaint schedule land was not delivered and the same continued to remain with the plaintiff and his family members. Defendants 1 and 2 have obtained a so-called sale deed from Chikkakaverappa, K. Muniyappa, C. Muniyappa and C. Krishnappa who are defendants 7 to 9. The said transaction does not create any right in defendants 1 and 2 and the same is fraudulent and void and against the public policy and is unenforceable. The plaintiff has been through-out in possession and enjoyment of the plaint schedule property. The defendants 1 and 2 attempted to interfere with his possession and enjoyment of the plaint schedule property. They have no semblance of right and if the defendants were to trespass into the plaint- schedule property, he would be put to irreparable loss and injury. Hence the suit, the cause of action for which arose when the defendants attempted to trespass into the suit property.
5. Defendants 1 and 2 filed their written statement contending that the defendant No. 3 who is admittedly the son of the plaintiff applied for the regrant of survey No. 3 of Bommanahalli village measuring 5 acres 2 guntas which was a Thoti inam land and the Assistant Commissioner made regrant of the land in his favour as per order dated 3-5-1972. According to them the third defendant applied and obtained permission for alienation of the said land from the Assistant Commissioner, Bangalore-Sub-Division, as per order dated 5-5-1972 and obtained 'no objection' from the competent authority and sold an extent of 1 acre 28 guntas of land out of the regranted land to Sri Chikkakaverappa, K. Muniyappa and two others for Rs. 20,000/- and put them in possession under a registered sale deed dated 25-10-1972 and the Katha of the land was also changed in their names and the said Chikka Kaverappa, K. Muniyappa and two others being owners and in possession sold the said property in favour of the defendants 1 and 2 for a valuable consideration and put them in possession and thus defendants 1 and 2 are in peaceful possession and enjoyment of the property as bonafide owners. Defendants 1 and 2 are in peaceful possession and enjoyment of the property as bonafide owners. Defendants 1 and 2 are in peaceful possession and enjoyment of the same and katha of the property is made in their name and entries are made in the I.L., R.R. and R.T.Cs. They further stated that the third defendant sold a portion of the regranted land i.e. the land to the south of the suit schedule property in favour of one Sri B.S. Thapa who has constructed a factory building thereon and the plaintiff has not raised his little finger against that transaction. According to the defendants 1 and 2, plaintiff is a very powerful and highly influential person who was the Chairman of the village panchayat and a member of the Land Tribunal and was all along aware of the regrant in favour of the third defendant and in fact he made a statement before the competent authority that he had no objection for the regrant being made in favour of the third defendant and the permission was obtained for alienating the suit property and being fully aware of the alienation effected by his son and having acquiesced and allowed the third defendant to deal in the fashion referred to above, plaintiff is estopped from challenging the said transaction.
6. Defendants 1 and 2 alleged that the plaintiff had set up his son the third defendant to put-forth a claim of tenancy in respect of the suit schedule property before the Land Tribunal claiming to be a tenant under them and the Land Tribunal by its order dated 20-1-1982 has rejected the said claim and repelled his contentions. The plaintiff by virtue of his influence got initiated action under the provisions of the Karnataka Village Offices Abolition (Amendment) Act of 1978 through the Tahsildar, Bangalore South Taluk, calling on the defendants to show cause as to why the suit schedule property should not be resumed to the Government and the defendants approached the High Court in Writ Petition No. 19578 of 1979 and by the order dated 19-8-1980, the High Court quashed the said notice. Plaintiff has no semblance of right in the plaint schedule property and he is not entitled to any of the reliefs sought for. In Writ Petition No. 5432 of 1982 filed by the third defendant against the defendants 1 and 2 in respect of the plaint schedule property, the High Court by its order dated 3-9-1982 passed an order of injunction against the third defendant restraining him from interfering with the peaceful possession and enjoyment of the plaint schedule land by defendants 1 and 2. Rest .of the averments were denied and defendants 1 and 2 contended that the allegation in respect of the hypothecation deed dated 23-10-1972 was false. They also stated that the regrant was in the name of the third defendant and the allegation that it was in the name of the plaintiff and the third defendant for and on behalf of the joint family was stated to be false.
7. Defendant No. 3 filed his written statement admitting the plaint averments in toto and stating that he had no objection for granting the relief sought for in the plaint. With regard to the document dated 23-10-1972 executed by him in favour of Sriyuths Chikkakaverappa, K. Muniyappa, C. Krishnappa, defendant-3 contended that it was not a sale deed and that defendants 1 and 2 in order to knock-off the property had managed to get the document written as if it was the sale deed and according to him, he was in need of some money and he had borrowed the same from those four persons and as it was represented by them that the document was to be executed to serve as security, he had executed that document bonafide believing the representation to be true. He asserted that inspite of the said sale deed, possession of the land was not delivered either to Chikkakaverappa or three others or to defendants 1 and 2.
8. The trial Court framed the following six issues:-
1. Whether the plaintiff proves that S.No. 3, situated in Bommanahalli was regranted by the Assistant Commissioner to the plaintiff and the 3rd defendant on behalf of the joint family of the plaintiff and the defendants 3 to 6?
2. Whether the plaintiff proves that the sale deed dt. 23-10-1972 executed by the 3rd defendant in favour of Chikkakaverappa and others is in fact only a mortgage ?
3. Whether the plaintiff proves that the said sale is hit by the provisions under the Karnataka Village Offices Abolition Act, 1961 and therefore is void under law?
4. Whether the plaintiff proves his lawful possession over the suit property on the date of suit ?
5. Whether the defendants 1 and 2 prove that the plaintiff is estopped from questioning the sale transaction under the sale deed for the reasons stated in para-7 of their written statement?
6. What order
9. On his behalf, the plaintiff gave evidence as P.W.1 and examined two neighbours to speak about possession of the land by the plaintiff. On behalf of defendants 1 and 2, their younger brother K.M. Jayappa is examined as D.W.1 and three more witnesses D.Ws. 2 to 4 have also been examined in support of their version. 19 documents are marked in favour of the plaintiff and 32 documents in favour of the defendants. Considering the evidence and the arguments, the learned trial Judge found that the granting of land in the name of third defendant was on his own behalf and on behalf of the joint family consisting of himself, plaintiff and defendants 4 to 6. Issue No. 2 was held against the plaintiff. The learned trial Judge, on issue No. 3 held that defendants 4 to 6 were not properly represented and therefore the sale of their shares was void and defendant-3 had no right to sell the share of the plaintiff in the suit property and therefore plaintiff had proved that the sale of the shares of defendants 4 to 6 and that of the plaintiff was void and only the share of defendant-3 to the extent of 1/5th share was valid. The trial Judge on issue No. 4 held that the plaintiff along with his sons was in lawful possession, as possession followed title. Issue No. 5 was held against defendants 1 and 2 by recording a finding that they had failed to prove that the plaintiff was estopped from questioning the sale transaction under the sale deed for the reasons stated in paragraph-7 of the written statement. With these findings, the learned trial Judge decreed the suit declaring that the plaintiff along with defendants 4 to 6 was the absolute owner of the 4/5th share in the plaint schedule property and restraining defendants 1 and 2 from interfering with the possession of the suit schedule property of the plaintiff and defendants 4 to 6 except in due course of law. The learned trial Judge made it clear that the defendants 1 and 2 had a right to file suit for partition and possession of their 1/5th share in the plaint schedule property. Aggrieved by the decree made as above, defendants 1 and 2 have preferred the present Appeal.
10. In view of the submissions made on both sides, the following Points arise for Consideration:-
1. Whether the plaintiff has a title to the suit property ?
2. Whether he was in possession of the plaint schedule property as asserted ?
3. Whether plaintiffs suit is barred by constructive res judicata as contended ?
4. Is plaintiff estopped from filing the present suit ?
5. Is the suit of the plaintiff hit by Section 34 of the Specific Relief Act, 1963?
6. What order?
Points 1 to 5:-
11. The undisputed facts are that the plaintiff's grand-father Bovigooga was the original barawardar Thoti of the village Bommanahalli. He died leaving behind his only son Kaverappa and plaintiff has succeeded to Thoti office after his death. Plaintiff was performing services as Thoti Nirganti and was enjoying the lands including survey No. 3 assigned for Thoti services at Bommanahalli village. After the enforcement of the Karnataka Village Offices Abolition Act, 1961 which came into force on First February, 1963 both the plaintiff and his son - the third defendant Ganesh filed applications for regrant. By the order at Ex.P.12 which is the same as Ex.D.7 in Case No. 58 and 69/69-70 dated 4-5-1972, the Assistant Commissioner, Bangalore Sub-Division, Bangalore, passed an order under Section 5 of the Village Offices Abolition Act, 1961 that service inam lands including survey No. 3 measuring 3 acres 4 guntas of Bommanahalli village other than those alienated lands were regranted to the third defendant Ganesh Accordingly an endorsement Ex.D.8 was issued to the plaintiff and his son - the third defendant.
12. Perusal of Ex.P.12 discloses that in all there were four applicants including the plaintiff and his son B.L. Ganesh, the third defendant and it transpired that the plaintiff Lakshmiah, the first applicant before the Assistant Commissioner had alienated 2 acres of land in survey No. 3 and 9 guntas in Survey No. 14 and one Smt. R.Ramarathnam also claimed 2 acres of land in survey No. 3 as having acquired the same under a sale deed through one P.M. Ramalingam who had purchased the same from the plaintiff and which transaction was admitted by the plaintiff. It also transpires that the third defendant B.L. Ganesh - the second claimant objected to and questioned the validity of the said transactions in respect of two acres of land. It is also stated in the order that survey No. 14 measuring 9 guntas of land had been alienated by sale deed in favour of one Gopalkrishna which transaction was admitted by the plaintiff. Further it is found in Ex.P.12 that one Sri T. Kandaswamy the 4th claimant had also requested for the regrant of 2 acres of land in survey No. 3 as having been put in possession under an agreement with the first claimant-plaintiff. The Assistant Commissioner before ordering the regrant has observed as under :-
'However, I find some force in the contention of all the above claimants in respect of 2 acres of land in S.No.3 and 9 guntas of land in Survey No. 14. The enquiry in this respect is an elaborate process, and I therefore direct, that the regrant of land of the above lands may be dealt with separately.'
With the above observation and directing separate enquiry in respect of those claims on the basis of the statements recorded by him of the plaintiff and his son defendant-3, he proceeded to pass the order of regrant. Those statements of plaintiff and his son defendant-3, the second claimant before the Assistant Commissioner are found at pages 245 to 248 at Exs.D.5 and D,6 in the paper book. The statement of the third defendant-Ganesh which is in Kannada at Ex.D.5 discloses that his father Lakshmaiah had sold 9 guntas of land to Gopalakrishna out of survey No. 14 and he had further sold 1 acre 27 guntas from survey No. 3 of Bommanahalli to P.M. Ramalingam on 17-8-1961 and from that Ramalingam one Smt. Ramarathnam had purchased the same on 1-12-1961 and further his father had sold portion of land measuring 100'x150' from out of survey number 3 to Smt. Ramarathnam. Thus, in all his father had disposed of 2 acres of land in survey No. 3 and he was not knowing about the same and that i,3 was entitled to the allotment of the remaining portion of survey No. 3 and other lands and he therefore prayed for the regrant in favour of himself to the exclusion of his father and that his father had given consent for the same. Ex.D.6 is that statement of the plaintiff in which the plaintiff has admitted of having alienated 2 acres of land out of survey No. 3 to P.M. Ramalingam and Smt. Ramarathnam and that the alienations were nominal, but he still possessed that land and he did so without knowing that he was not entitled to alienate the land and therefore he requested the authority to regrant the remaining land in S.No.3 in the name of his son Sri B.L. Ganesh. On the basis of this admission and consent, the regrant order as per Ex.P.12 (Ex.D.7) came to be passed.
13. From the above material what is to be noted is that both the plaintiff and his son - third defendant made rival applications for regrant and the son third defendant Ganesh alleged that his father had alienated about 2 acres in Survey No. 3 of Bommanahalli village and those alienations were admitted by the plaintiff and the alienees had also staked their their claims in respect of those two acres out of survey No. 3 before the authority and the third defendant Ganesh was complaining of his father's alienations and was praying for regrant of the remaining portion of survey No. 3 and other lands in his name only. The plaintiff conceded to this statement of his son and gave no objection statement as stated above before the Assistant Commissioner and on the basis of that statement, the Assistant Commissioner proceeded to pass the order stated above.
14. It is admitted by plaintiff, defendant No. 3 and his brothers defendants 4 to 6 that they were all living together and their joint family continued to exist without any rupture or break in it. The evidence of the plaintiff in this behalf in paragraph 29 on page 134 of the paper-book reads as under:-
'Till today, the third defendant and myself are living in the joint family.'
15. It is in the evidence of the plaintiff that he was the Chairman of the Group Village Panchayath of Bommanahalli from 1960 to 1968, and in 1978 for three months he was a member of the Land Tribunal, of Bangalore South Taluk. He has admitted 'I was a member of the Tribunal when my son had given an application in form No. 7 who is the third defendant. It related to the suit property.'
16. After the regrant order was passed as per Ex.P.12 on 4-5-1972, B.L. Ganesh the third defendant made an application in case No. HOA (S) 58 and 69/69-70 and permission was granted to alienate the Thoti and Nirganti service inam land bearing S.No.3 measuring 3 acres 4 guntas other than already alienated portion in Survey No. 3 in favour of Ganesh, the son of Lakshmaiah, the plaintiff. The order at Ex.D.9 states that with reference to application of the third defendant dated 5-5-1972 he was granted under Section 5(3) of the Karnataka Village Offices Abolition Act, 1961, with permission to alienate 3 acres 4 guntas in survey No. 3, and survey Nos. 24 and 40 of Bommanahatli village.
17. In pursuance of this permission for alienation, the third defendant - B.L. Ganesh and his three brothers who are defendants 4 to 6 executed the sale deed Ex.D.11 on 23-10-1972 and sold the plaint schedule land measuring 1 acre 28 guntas of survey No. 3 in favour of one Sri Chikkakaverappa, K. Muniyappa, C. Muniyappa and C.Krishnappa. The three persons named above other than Chikkakaverappa are impleaded as defendants 7 to 9 to the suit in the trial Court out of which the present Appeal arises and they are also respondents 6 to 8.
18. Recitals of the sale deed Ex.D.11 copy of which is produced by the plaintiff at Ex.P.15 discloses that possession of the land sold was handed over with the standing crops to the purchasers and a sale was effected after obtaining necessary permission for alienation. The recital with regard to the delivery of possession contained on page 271' of the paper-book reads as under:-
'... all the land mentioned in the schedule hereunder, in favour of purchasers together with all their right, title and interest and water rights, easements, heriditaments, appurtenances, and have handed over possession of the schedule land with standing crops to the purchasers.'
Further on page 272 of the paper-book one of the Clauses in the sale deed reads as under: -
'That the vendors have sold the schedule land in favour of the purchasers as they had assisted in cultivating the land along with the first vendor and under him and that the vendors have assured the purchasers that there are no tenancy rights or tenants in the schedule land.'
19. After the sale in favour of Chikkakaverappa and three others on the same day under the sale deed Ex.D.12, Chikkakaverappa, K.Muniyappa, C. Muniyappa and C. Krishnappa sold the plaint schedule land by way of absolute sale and delivered possession thereof to the defendants 1 and 2 who are the appellants before this Court. Copy of the sale deed Ex.D. 12 is produced by plaintiff at Ex.P. 16, Both these deeds have come into existence on the same day and it is material to note on page 285 of the paper-book with regard to delivery of possession the following recitals:-
'....all the land mentioned in the schedule hereunder in favour of the purchasers, together with all their right, title and interest, water rights, easements, heriditaments, appurtenances and have handed over possession of the schedule land with standing crops to the purchasers.'
Nodoubt, the sale deeds Ex.D.11 and D.12 have come into existence on the same day, and in pursuance of these transactions, entries in Record of Rights were made. At Ex.P.9 on page 183 of the paper-book in the R.T.C. extract, the names of the purchasers Chikkakaverappa, K. Muniyappa, C, Muniyappa and C. Krishnappa are entered as kathedars and further the names of the defendants 1 and 2 - appellants are also entered as Munireddy and Krishnaswamy in column No. 9, and the names of Munireddy and Krishnaswamy are entered in the cultivator's column for the year 1972-73 as found from the entry at Ex.P.9 at page 186 of the paper-book but for the year 1973-74, the names of Ganesh and plaintiff alone are entered and the names of appellants are not entered for the year 1973-74. It is in evidence that there is an enquiry pending before the competent Revenue Officer for omission to enter the names of appellants as cultivators for the years 1973-74 onwards and the Village-Accountant officiating at the relevant time has been examined as D.W.3 in the instant case on behalf of the defendants and in his deposition he has stated that by force of habit he made a wrong entry and that was due to undue pressure brought on him by the plaintiff and he has been examined in the enquiry before the Revenue Authority and he had so stated before that authority. Copy of his statement before the Revenue Authority is also produced at Ex.D.16. This material goes to show that there was pressure brought on the Village Accountant Venkataramaiah by the plaintiff and succumbing to the same he entered the name of the plaintiff as cultivator for the year 1973-74 and onwards and a departmental enquiry instituted in this behalf by the competent authority (revenue authority) is pending disposal.
19. The evidence of defendants 1 and 2 shows that defendant No. 3 sold 1 acre 14 guntas of the regranted land to H.S.Thapa prior to the sale in their favour and he further sold 14 guntas of land to Fortune Cotton Mills and these two lands are adjacent to the lands of defendants 1 and 2 and that H.S.Thapa and Fortune Cotton Mills are running their business in these lands sold by defendant No. 3 by erecting factories. According to D.W.1, the younger brother of the defendants 1 and 2, the land purchased by them is in their cultivation since the date of purchase and they are in possession.
20. From the above material, it is clear that plaintiff Lakshmaiah had sold about 2 acres in Survey No,3 of Bommanahalli village and other lands prior to the regrant order and for regranting the remaining lands assigned for services of Thoti and Nirganti office, he gave his consent and requested for regrant of those lands in favour of his son, the third defendant. Further after the regrant order, as per Ex.D.8 an endorsement was issued in that behalf, defendant No. 3 applied and obtained permission to alienate the regranted land as per Ex.D.9 and the alienation effected in pursuance of the permission so granted before 1978 in which year amendment of Karnataka Village Offices Abolition Act, 1961 was brought about was valid and therefore the alienation effected under the sale deed Ex.D.11 by the third defendant in favour of the vendors of the appellants is valid and lawful.
21. The above stated facts drive one to the irresistible conclusion as under:-
Plaintiff, his son Ganesh and other sons have been living jointly. Plaintiff is an important person holding the post of Chairman of the Group Village Panchayat for a long period of nearly eight years and he was also a member of the Land Tribunal. He had, along with his son Ganesh applied for the regrant of the Service Inam Lands including portion of plaint schedule survey No. 3 of Bommanahalli, his son-third defendant Ganesh complained of alienations effected by his father - the plaintiff and wanted the competent authority to regrant the lands in his name only. Having admitted those alienations before the competent authority, the plaintiff who is the father of defendant-3 acceded to the request of his son and made a statement for regranting the lands in the name of his son only. Thus, the plaintiff, whatever rights he had appears to have given up the same as he had already alienated quite a good portion of survey No. 3 and had taken money and therefore he consented to his son - third defendant's request by giving up his claims for allotment in his favour. It is necessary to note that no claim was made by the father - the plaintiff for regrant of the land for himself and for all his sons. Thus, it is to be noted that plaintiff having alienated the service inam lands on his own and being opposed by his son gave up his claim for regrant in his favour and consented to the request of his son for regrant in his favour and accordingly the regrant came to be made in favour of defendant-3. Thus, the plaintiff appears to have waived his rights in respect of regrant claimed by him.
22. Plaintiff admittedly was joint with his son the third defendant and he waived his rights under his application for regrant and consented for regrant in favour of his son alone. They continued to live together.
23. It is on record that after the sale of the plaint schedule land in favour of the appellants under Ex.D.12, the third defendant who had sold the same to the vendors of the appellants under Ex.D. 11 made a claim for grant of tenancy rights by filing form No. 7 under the Karnataka Land Reforms Act against the present appellants and the Land Tribunal acting on the application of the third defendant-Ganesh passed an order on 12-1-1978 granting occupancy rights in his favour. One of the members of the Land Tribunal so granting the claim of tenancy set-up by third defendant-Ganesh was his father -the plaintiff. Therefore the appellants filed Writ Petition No. 4430 of 1978, challenging the proceedings in No. LRF 2422/74-75 granting the claim of defendant-3. By the order dated 8th June, 1979 this Court allowed the petition and quashed the impugned order and remitted the matter to the Tribunal for fresh inquiry and disposal according to law. The proceedings were quashed on the ground that one of the members of the Tribunal was the plaintiff who was the father of the second claimant Ganesh as found from paragraph-4 of the order on page 299 of the paper book. Thereafter the matter was enquired in detail after remand by the Land Tribunal and the claim of Ganesh came to be rejected ultimately by order dated 20th January, 1982 copy of which is produced at Ex.D.19 at page 309 of the paper-book. This order discloses that Ganesh was not in possession of the land on the appointed date on 1-3-1974 or immediately prior thereto and had failed to establish that he was the tenant of the land on 1-3-1974 or immediately prior to that date. This order was challenged by filing Writ Petition No. 5432 of 1982 and the same came to be rejected by the considered order dated 25th June, 1986 copy of which is produced at Ex.D.22 at page 360 of the paper-book. This Writ Petition 5432 of 1982 was against the rejection of the claim of tenancy rights and the same was dismissed. These proceedings indicate that the present plaintiff-Lakshmaiah was aware of what his son third defendant was doing by filing an application for tenancy rights in respect of the lands sold under Ex.D.11 and D.12 and somehow he was trying to get into possession of the same and those efforts were aided and abetted by the Land Tribunal of which the plaintiff was a member and the order helping the third defendant passed by the Land Tribunal was set at naught by this Court and after remand the Land Tribunal rejected the claim of the third defendant and the same was confirmed in the Writ Petition, decision of which is at Ex.D.22. Therefore the present plaintiff who is the father of Ganesh cannot be stated to be unaware or ignorant of the proceedings commenced by his son who was living with him as a member of the joint family.
24. Next important development to be noted is that a notice was issued on 4-11-1979 by the Tahsildar, Bangalore in HOA(2)115/ 1979-80 to show cause as to why the plaint schedule land should not be forfeited to the State Government for unlawful alienation. When that notice was issued to the appellants, they preferred Writ Petition No. 19578 of 1979 before this Court under Article 226 of the Constitution for quashing the notice dated 14-11-1979 and this Court by the order passed on 19th August 1980 allowed the petition and quashed the impugned notice holding that the alienation was done after obtaining permission under Section 5(3) of the Karnataka Village Offices Abolition Act, 1961. These proceedings, according to the appellants were started by the Tahsildar at the instance of the present plaintiff who was a leader and a powerful person.
25. It is to be noted that during the pendency of Writ Petition No. 5432 of 1982, the present appellants moved an application for injunction against the third defendant and persons claiming through him restraining them from interfering with their peaceful possession and enjoyment of the plaint schedule land and this Court by order dated 3rd September, 1982 issued an injunction restraining the third defendant and persons claiming through him from interfering with the appellants' possession and enjoyment of the land sold to them and given to their possession. This order is at Ex.D.20 on pages 355 and 356 of the paper-book. This order shows that the plaint schedule land was in possession of the appellants during the pendency of the Writ-Petition No. 5432 of 1982 till its disposal on 25-6-1986 as noticed from Ex.D.22 referred to above. Against the rejection of Writ Petition No. 5432 of 1982 by order dated 25-6-1986, an appeal was preferred by the third defendant and the same came to be admitted on 5-8-1986 as found at Ex.P.18 on page 224 of the paper-book and this appeal is stated at the Bar to have been dismissed. The appellant in Writ Appeal No. 1972 of 1986 who is the third defendant in the present suit, moved the Court for stay of the order dated 25-64-1986 by filing an interim application and that application came to be dismissed as not pressed on 2-4-1987. As per the statement made at the Bar, this Writ Appeal is stated to have been dismissed on 13-6-1990. All the proceedings referred to above though pressed into service on behalf of the appellants before the trial Court have not been considered on the ground that the plaintiff was not a party to any of those proceedings. This approach of the trial Court is improper and illegal and overlooks the material on record. When the plaintiff is living jointly with the third defendant-his son in the same house and when he is aware of the sale-deed by his son under Ex.D.11 in favour of Chikkakaverappa and three others which transaction he calls as loan transaction and hypothecation and fails to substantiate the same as held by the learned trial Judge and when his son applies for grant of tenancy rights in Form No. 7 under the Karnataka Land Reforms Act, 1961 and when he as one of the Members of the Land Tribunal grants tenancy rights in favour of his son under the Karnataka Land Reforms Act, 1961 in respect of the plaint schedule property and when those proceedings are quashed because the father of the third defendant being one of the members of the Tribunal grants tenancy rights in favour of his son and when on remand the Tribunal rejects the claim of tenancy set up by the third defendant-Ganesh and when the proceedings are initiated against the appellants for forfeiting the plaint schedule land for alleged alienation in breach of the provisions of the grant and the said proceedings are quashed by the High Court, it cannot be said that plaintiff - the father of the third defendant Ganesh, the vendor is ignorant of and unaware of what is being done by his son.
26. In the plaint averments, the plaintiff has come out with the version that the regrant was in favour of himself and his son the third defendant Ganesh, It is seen from the records that this assertion is not correct and on the plaintiff's statement regrant was ordered in favour of the third defendant after practically the plaintiff gave up his case as rival claimant. Further it is seen that the plaintiff contended that there was a hypothecation of the land in favour of Chikkakaverappa and others in respect of the loan taken by his son Ganesh and that averment was accepted by Ganesh by contending that the document was taken as a sale deed though the transaction was not a sale transaction and the same according to him was in respect of the loan taken by him. That contention of the plaintiff has been negatived by the trial court and it is held that it was a sale by Ganesh in favour of Chikkakaverappa and others as the document Ex.D.1 purported to be. Though the plaintiff was aware of all the above facts, he has not taken steps to know as to why his son was taking loan or was hypothecating the land, he did not admonish his son against hypothecation or sale of the land under Ex.D.11 and subsequent sale of the land under Ex.D.12. If the father was incharge of the affairs of the family as Manager thereof as urged by the learned Counsel appearing on his behalf, the plaintiff has not raised his little finger as Manager of the family to prevent the alienation and handing over of possession of the land by his son the third defendant under Ex.D.11. Therefore the evidence amply demonstrates that though the family was joint, and though the plaintiff was the Manager of the family he went on alienating portions of survey No. 3 of Bommanahalli before regrant in the year 1972 and when he applied for regrant of the remaining portion of survey No. 3 and other lands along with his son Ganesh, his son opposed granting of lands in favour of the plaintiff and he yielded to the objections of his son and conceded grant in favour of the third defendant by waiving his rights if any and thus he is having no objection for all that was being done by his son in respect of the suit land and he further went out of the way in helping his son by granting occupancy rights as Member of the Tribunal in respect of those lands and that order also did not stand the test of legal scrutiny and the Land Tribunal subsequently dismissed his claim and further efforts made to grab the land by issuing notice for quashing alienation through the Tahsildar also came to a naught when this Court quashed the notice. Thus, all the efforts of the plaintiff and his son to some-how get back into possession of the suit land by hook or crook have failed and during the pendency of the proceedings before the High Court there was an injunction against Ganesh and persons claiming through him from interfering with the possession of the appellants and therefore Ganesh and his father having lost on all fronts, the plaintiff-respondent-1 has filed the present suit asserting his possession and seeking declaration as stated above. It is therefore to be seen, whether the plaintiff has substantiated his claims.
27. From the facts adverted to above, the plaint schedule land was regranted in favour of defendants Ganesh on 4-5-1972 and permission to alienate under Section 5(3) of the Karnataka Village Offices Abolition Act, 1961 was obtained on 3-6-1972 as per Ex.D.9 and in pursuance thereof sale in favour of the appellants' vendor took place on 23-10-1972 under Ex.D.11 and on the same day, the appellants purchased the said land under Ex.D.12. After all the litigation under the Karnataka Land Reforms Act, 1961 by Ganesh approaching the Land Tribunal for grant of occupancy rights by filing Form No. 7 and the Land Tribunal granting such claim with plaintiff as one of the Members and that order being quashed by the High Court and subsequent remand of the matter to the Land Tribunal and final disposal of the claim of Ganesh for tenancy rights by rejecting Form No. 7 by order of the Tribunal Ex.D.19 dated 20-1-1982 the present suit by the plaintiff Lakshmaiah the father of Ganesh defendant-3 came to be filed on 24-2-1982. In this suit, the plaintiff has asserted his possession inspite of orders passed in respect of this land by this Court in Writ Petition 4430 of 1978 and other matters, issuing injunction in favour of the appellants restraining Ganesh and persons claiming under him from interfering with, their possession. The plaintiff has made himself bold to assert his possession and has sought for the reliefs of declaration of title possession and injunction. Supporting the decree, the learned Counsel for the plaintiff submitted that regrant in favour of Ganesh was for the benefit of all the members of the joint family and as such he asserted that plaintiff also had a share along with his other sons and therefore plaintiff's suit was maintainable for the reliefs sought for by him. To buttress this argument, he referred to the observations found in the order at Ex.D.7 regarding the grant in favour of defendant-3 on 4-5-1972 that the regranting authority found Ganesh and his father in possession of the land in dispute along with other lands assigned for service of Thoti and Nirganti and therefore the regrant order passed in favour of Ganesh was contended to be for the benefit of Ganesh, his brothers and their father. It was also contended relying on observations in Mayne's Hindu Law that it is not necessary for the plaintiff to describe himself as the Manager of the family in the suit instituted by him. In this behalf he referred to paragraph 320 at page 575 of Mayne's Hindu Law and Usage 12th Edition and it reads as under:-
'Where the suit relates to joint family property and the person sued or suing is the manager, he need not be described as such in the plaint, though it is advisable to do so. If it appears that in fact he was the Manager and the suit related to the joint family property, or its rights or liabilities, it must be presumed that he was suing or being sued in his representative capacity;'
He further relied upon the various Decisions of this Court to contend that Sections 4 and 5 of the Karnataka Village Offices Abolition Act, 1961 do not affect personal law of parties and they did not deprive junior members of right to partition. The learned Counsel for the appellants stated that after abolition of the offices and resumption of the land, it become a ryotwari land (only on regrant and as such) and the regrant being for the benefit of all the members of the joint family, plaintiff had his share and he was in possession of the same along with other members of the family and there being no rupture in the joint family the land continued to be in possession of the plaintiff an his sons who constituted the joint family and therefore plaintiff was entitled to the relief of declaration of title and injunction against the appellants. In this connection he referred to (1) SHIVAPPA FAKIRAPPA SHETSANADI vs. KANNAPPA MALLAPPA SHET-SANADI ILR 1985 Kar 3155 (2) MOHAMADSA vs. ALLISA ILR 1988 Kar 2102 (3) DHONDI VITOBA KOLI vs . MAHADEV DAGDU KOLI : AIR1973Bom323 (4) KRISHNAMURTHY vs. BRINDAMMA - SNRD No. 114 ILR 1979 Kar 1307 and C.H. JADUNATH SINGH vs. THE BISHESHEN SINGH AIR 1939 Oudh 17. These Decisions are cited to substantiate the contention that the rights of the members of the joint family in service lands regranted to them after abolition of the Inams are not affected and the regrant is for the benefit of the entire family and the rights of the members of the family to claim share on partition are not affected. It is not necessary to refer to all these Decisions in detail.
28. It has been asserted by the plaintiff that the regrant of the plaint schedule land and other lands was made in favour of himself and his son Ganesh. As already seen above, this assertion is not correct and the regrant order at Ex.D.7 shows that it was in favour of the third defendant Ganesh alone and circumstances have been pointed out to show why that order came to be made in the name of Ganesh. Plaintiff asserted that he was entitled to regrant but he admitted having alienated two acres in Survey No. 3 and his son - third defendant opposed the regrant in favour of his father Lakshmaiah. according to the request of third defendant, Lakshmaiah gave up his rights and consented to regrant being made in favour of Ganesh as he had made alleged alienations in favour of Smt. Ramarathnam and others. Hence, here is a case where Lakshmaiah having alienated major portions of service inam lands before they were regranted, gave up his rival claim for regrant and plaint schedule land came to be regranted in favour of Ganesh - the third defendant only after Lakshmaiah made a statement and impliedly gave up his rights in that behalf as 'alluded to above. The learned trial Judge even though referred to Ex.D.17 the final order in Writ Petition No. 4430 of 1978 dated 8-6-1979, Ex.D. 18 order quashing notice for resumption in Writ Petition 19578 of 1979 dated 19-8-1980, Ex.D.19, order of the Land Tribunal rejecting defendant-3's application for registration of occupancy rights dated 20-1-1982, Ex D.20, the certified copy of the interim order in Writ Petition 5432 of 1982 dated 3-9-1982 passed against Ganesh and others in favour of the present appellants restraining Ganesh and others from interfering with the appellants' possession, Ex.D.21, order of the Tahsildar dropping the proceedings under the Karnataka Village Offices Abolition Act, 1961 passed on 28-5-1982 and Ex.D.22 final order in Writ Petition No. 5432 of 1982 passed by this Court on 25-6-1986 rejecting challenge of Ganesh proceeded to brush aside all these orders and findings to hold that plaintiff Lakshmaiah was not a party to these proceedings and therefore his claim was not affected by any of these proceedings and the findings recorded therein and therefore relying on the abstract legal position referred to above in respect of the rights of members of the joint family in respect of the land granted after the abolition of inam, has held that the plaint schedule land regranted in favour of defendant-3 under Ex.D.7 on 4-5-1972 was for the benefit of the plaintiff, defendant-3 and other sons of the plaintiff and they were all in possession and therefore the learned trial Judge proceeded to record a finding that only the share of alienating coparcener defendant-3 was bound by the sale-deeds at Exs.D.11 and D.12 and those transactions did not affect the rights of defendants 4 to 6 and since they had filed the written statement admitting the claim of the plaintiff, the learned trial Judge declared that plaintiff and defendants 4 to 6 were owners in possession of land and left it to the appellants-purchasers of the share of defendant-3 Ganesh to work out their rights by filing separate suit in respect of the share of Ganesh. Therefore the learned Counsel Sri S. Nanjundaswamy, appearing for the plaintiff-Lakshmaiah contended that the appellants have not pointed out as to how the view taken by the trial Court is not correct and therefore it is submitted that the findings and the decree made by the trial Court call for no interference. In support of this argument, he also submitted that the appellants had not entered the witness-box as witnesses and they had not spoken to the contents of the sale deeds and they had sworn to their possession of the suit land on the date of suit and they had only examined their power of Attorney Holder and brother D.W.1 and this witness, according to him was not competent to speak to the contents of the sale-deeds and to the factum of possession, and therefore the case of defendants 1 and 2 - the appellants before this Court had not been substantiated and on that ground also according to him, the judgment and decree under challenge did not suffer from any infirmity. The learned Counsel for the plaintiff went to the extent of contending that the person in whose favour the land was regranted was a sort of trustee for all the members of the joint family and he held the land as trustee and Section 90 of the Indian Trust Act applied to the facts of the case and he was not at all entitled to alienate the land and any such alienation amounted to breach of trust and was not binding on the other members of the joint family.
29. The above propositions of law as such are not disputed by the learned Counsel for the appellants. What all is submitted on their behalf by Sri Sundaraswamy, the learned Senior Advocate is that having regard to the facts and circumstances of the case the regrant was in favour of third defendant alone and his father gave up his claim after realising untenability of his claim as he had already alienated large portions of Survey No. 3 of Bommanahalli village and having regard to the conduct of Lakshmaiah as a Member of the Land Tribunal in granting registration of occupancy rights under the Karnataka Land Reforms Act in favour of his son Ganesh who was living admittedly with him as a member of joint family and that order being set-aside as illegal as detailed above and further after failure of the proceedings got initiated for resumption of land for alleged breach of terms of regrant and after long lapse of 10 years from the date of Exs.D.11 and D.12 having failed in all the efforts to some-how get back possession of the plaint schedule land, it is pointed out that the plaintiff has made himself bold to file the suit out of which the present appeal arises and having regard to' his conduct for all these ten years and his acquiescence and delay he is estopped from asserting his rights by filing the present suit and therefore it is strongly urged that the decree should be reversed by allowing the appeal.
30. The learned Counsel Sri Sundaraswamy in this behalf pressed into service Section 115 of the Indian Evidence Act and Section 11 Explanation VI of the Code of Civil Procedure and principles of estoppel to contend that the suit is barred by law.
31. Before taking up the bar of estoppel, other contentions raised by the plaintiff can be disposed of by short reference in that behalf. As regards the law on the point of regrant and regrant being made for benefit of the members of the joint family and members of the joint family exercising their rights by claiming partition by virtue of their right of survivorship are not at all disputed and the Decisions relied on in that behalf call for no detailed reference. It is also to be noted that plaintiff cannot make much of non-examination of appellants. In support of their contentions, the appellants have examined their younger brother Jayappa. His evidence discloses that he was aware of the transactions under Exs.D.11 and D.12 by the appellants - his elder brothers with Ganesh and his brothers. It is also stated that Plaintiff Lakshmaiah was the Manager of his family. There is not much dispute with regard to status of the members of the family but what is disputed is conduct of Lakshmaiah and his sons and the proceedings that have taken place from 1972 to the date of filing of the suit and subsequent developments in that behalf. Plaintiff has made reference to the sale deeds Exs.D.11 and D.12 and he has also produced certified copies thereof at Exs.P.15 and P.16. He has freely referred to these sale deeds. No objection was taken to the marking of Exs.D.11 and D.12 when they were pressed into service by the appellants. The law on the point is well settled in this behalf and as early as 1943 in GOPAL DAS vs . SRI THAKURJI , it is laid down that where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. A party cannot lie by until the case comes before a Court of appeal and then complain for the first time of the mode of proof. Therefore it is no use indeed representing before this Court that documents Exs.D.11 and D.12 cannot be read into evidence to show that the possession has already been delivered to the purchasers under the deeds. These documents and revenue records were pressed into service by the appellants in Writ Petition No. 5432 of 1982 in which an interim order was passed as per Ex.D.20 against Sri Ganesh and persons claiming through him. It is in this Petition that impleading applications were filed by the brothers of Ganesh. Plaintiff has come out with the version that he too was one of the impleading applicants and according to him that statement is not challenged in his cross-examination. Though there is no documentary evidence to show that plaintiff was also one of the impleading applicants and as per Order passed in Writ Petition No. 5432 of 1982 by this Court as per Ex.D.22 it can be held that plaintiff is aware of all these proceedings including Ex.D.22 and the interim order in that case at Ex.D.20 and therefore it is futile for plaintiff to contend that recitals in Exs.D.11 and D.12 cannot be read to support the contention of the appellants that they are in possession of the land as deposed to by P.W.1 Jayappa. It may also be noted that relevant facts may be proved by examining witnesses who are having knowledge of those facts. Therefore it cannot be contended that it is only the parties to the litigation who are the competent witnesses to prove the facts required to be established for success in the case. This Court has in SIDDAMMA vs . AGARWAL AND COMPANY : ILR1985KAR4071 held that there in no compulsion in law that in every case petitioner should examine himself or herself and that grounds necessary for reliefs may be substantiated by persons possessing knowledge about the same. In the instant case Jayappa D.W.1 is none other than the younger brother of the appellants and he is a member of their family and he knows the facts and the transactions are claimed to be within his knowledge and he is also a holder of Power of Attorney and therefore his evidence cannot be eschewed on the ground that appellants have not entered the witness-box.
32. Though plaintiff came out with the version that Ex.D.11 the first sale deed by Ganesh in favour of the vendors of the appellants was not a sale deed and it was merely a security for money borrowed, in support of that contention neither the plaintiff nor Ganesh the third defendant who supported that plea came-forth and gave evidence. Ex.D.11 and Ex.D.12 are not the documents which are required to be attested by law and provisions of Section 68 of the Indian Evidence Act are not attracted for proving them. There is no denial of execution by the executant of Exs.D.11 and D.12. Therefore there is no need to call the executant or the attestors and therefore there is no merit in the contention that these documents have not been duly proved. It is true that proof of contents is different from proof of signature of executant. But Exs.D.11 and D.12 are freely admitted to record and referred to and relied on by the plaintiff and his son and they never objected to the admitting of those documents as Exhibits and taking them on record as evidence and therefore their belated contentions in this behalf deserve no consideration.
33. The appellants contend that suit of the plaintiff is barred by estoppel by his conduct, silence and inaction. As pointed out and as referred to and as admitted by the plaintiff he has been living jointly with his son Ganesh and other sons. He was an applicant for regrant along with his son Ganesh. He made a statement giving the consent for regrant in favour of Ganesh. Thereby he impliedly waived his right for regrant in his favour when his son opposed regrant in his favour on the ground that he had already alienated portions of survey No. 3 and other lands. Soon thereafter defendant-3 sought and obtained permission for alienation of the plaint schedule land regranted in his favour. Armed with permission at Ex.D.9 Ganesh along with his other brothers through their Guardian-mother alienated plaint schedule land under Ex.D.11 and purchasers therein sold the same to the appellants under Ex.D.12. Ganesh thereafter made claim for registration of occupancy rights by filing Form No. 7 under the Karnataka Land Reforms Act, 1961 to the Land Tribunal in which Plaintiff was one of the Members and in that capacity he was aware of granting occupancy rights in favour of Ganesh in respect of the suit land. The grant of occupancy right was challenged on the ground that plaintiff Lakshmaiah the father was one of the Members of the Land Tribunal. This Court in Writ Petition No. 4430 of 1978 set-aside the grant of occupancy rights and remanded the matter and after remand the Land Tribunal as per order at Ex.D.19 dated 21-1-1982 rejected the claim of defendant-3 for occupancy rights. Plaintiff must be having knowledge of these transactions. He is aware that his son borrowed money; according to him under Ex.D.11, but he does not chastise or question his son as to what made him to borrow the money by executing a sale deed which according to him was only a hypothecation deed. Conduct of plaintiff therefore in keeping quiet and overlooking all these transactions shows that he was a party to fraud and he and his son somehow wanted to get back possession of the plaint schedule land from the appellants.
34. As referred to earlier, plaintiff keeps quiet for a period of long ten years from 4-5-1972 the date of regrant in favour of defendant-3 to the date of suit 24-2-1982 and has started asserting possession taking help of abstract propositions of law that grant was for the benefit of all the members of the joint family and every member of the joint family has a right to possession and claim partition but his conduct in colluding with his son and Land Tribunal of which he is a Member passing illegal orders and his failure to know from his son as to why he should borrow money on executing deed like Ex.D.11 betray him. Therefore, conduct showing inaction and negligence for long ten years speaks volumes against the plaintiff and that cannot be left out of consideration while considering his claims for relief of declaration and injunction which are discretionary reliefs. They are also equitable reliefs and person claiming such reliefs must have conduct free from blame to entitle him to the same.
35. In support of the contention that the reliefs sought for by the plaintiff are barred by principles of estoppel, the learned Counsel for the appellants relied on the following Decisions:-
(1) S. SHANMUGAM PILLAI vs . K. SHANMUGAM PILLAI : [1973]1SCR570 . Head Note 'A' dealing with estoppel reads as under:-
'There are three classes of estoppels that may arise for consideration in dealing with reversioner's challenge to a widow's alienation. They are (1) that which is embodied in Section 115 of the Evidence Act, (2) election in the strict sense of the term whereby the person electing takes a benefit under the transaction and (3) ratification i.e. agreeing to abide by the transaction. A presumptive reversioner coming under any one of the aforesaid categories is precluded from questioning the transaction, when succession opens and when he becomes the actual reversioner. But if the presumptive reversioner is a minor at the time he has taken a benefit under the transaction, the principle of estoppel will be controlled by another rule governing the law of minors. If after attaining majority he ratifies the transaction and accepts the benefit thereunder, there cannot be any difference in the application of the principle of election. The effect would be the same. It may be that on attaining majority he has the option to disown the transaction and disgorge the benefit or to accept it and adopt it as his own. Whether after attaining majority the quondam minor accepted the benefit or disowned it, is a question to be decided on the facts of each case.' Para 13 of the same Judgment on Page 2073 reads as under:-
'Equitable principles such as estoppel, election, family settlement etc. are not mere technical rules of evidence. They have an important purpose to serve in the administration of justice. The ultimate aim of the law is to secure justice. In recent times in order to render justice between the parties, courts have been liberally relying on those principles. We would hesitate to narrow down their scope.' Next Decision relied on by the appellants is PROVASH CHANDRA DALUI vs. BISWANATH BANERJEE AIR 1989 SC 1839. Paras 6 and 21 which are material read as under:-
'6. Two questions are, therefore, to be decided in this appeal, namely, whether the instant appellants acquired the status of 'thika' tenants in respect of the lease; and whether there was estoppel, waiver, acquiescence or res judicata on the part of the respondents as in earlier proceedings they treated the appellants as thika tenants before the Controller.' '21. The essential element of waiver is, that there must be a voluntary and intentional relinquishment of a known right or such conduct as warrants the inference of the relinquishment of such right. It means the forsaking the assertion of a right at the proper opportunity. The first respondent filed suit at the proper opportunity after the land was transferred to him, and no covenant to treat the appellants as Thika tenants could be shown to have run with the land. Waiver is distinct from estoppel in that in waiver the essential element is actual intent to abandon or surrender right, while in estoppel such intent is immaterial. The necessary condition is the detriment of the other party by the conduct of the one estopped. An estoppel may result though the party estopped did not intend to lose any existing right. Thus voluntary choice is the essence of waiver for which there must have existed an opportunity for a choice between the relinquishment and the conferment of the right in question. Nothing of the kind could be proved in this case to estop the first respondent.' Next Decision relied on is INDIRA BAI vs . NANDKIRHORE : AIR1991SC1055 read as under: -
'Estoppel, is a rule of equity flowing out of fairness striking on behaviour deficient in good faith. It operates as a check on spurious conduct by preventing the induce from taking advantage and assailing for forfeiture already accomplished. It is invoked and applied to aid the law in administration of justice. But for it great many injustice may have been perpetrated. Present case is a glaring example of it. True no notice was given by the seller but the trial court and the appellant court concurred that the pre-emptor not only came to know of the sale immediately but he assisted the purchaser-appellant in raising construction which went on for five months. Having thus persuaded, rather misled, the purchaser by his own conduct that he acquiesced in his ownership he somersaulted to grab the property with constructions by staking his own claim and attempting to unsettle the legal effect of his own conduct by taking recourse to law. To curb and control such unwarranted conduct the courts have extended the broad and paramount considerations of equity, to transactions and assurances, express or implied to avoid injustice.' 6. Even otherwise on facts found that the respondent knew of the sale deed, assisted the appellant in raising the construction and after the construction was completed in the month of June he gave the notice in month of July for exercise of the right and filed the suit in January would itself demonstrate that the conduct of the respondent was inequitable and the courts in this country which are primarily the courts of equity, justice and good conscience cannot permit the respondent to defeat the right of appellant and invoke a right which has been called a weak and inequitable right.' The above Authority is in support of the proposition that equity is invoked and applied to aid the law and not to help a person who keeps quiet for long period of 10 years and thinks of legal remedy after a long lapse of ten years when attempts of himself and his son to get back possession of land have failed. The learned Counsel then relied on SUNDERABAI vs . DEVAJI SHANKAR DESHPANDE : AIR1954SC82 for the proposition that plea of estoppel can be entertained for preventing fraud or circuity of action. Para 18 of the judgment which deals with this aspect reads as under:-
'It was further contended by the learned Solicitor-General that on a true construction of term No. 2, Gangabai agreed not to adopt a son to her deceased husband Shankar, that the matter had passed from the stage of mere representation into an agreement and that therefore it would be a case of breach of contract, if any. We are afraid that this position cannot avail him. Even though the matter may have passed from the stage of a representation into an agreement, there are cases where the courts are entitled to entertain a plea of estoppel in order to prevent fraud or circuity of action. Authority for this position is to be found in the following passage from Bigelow on Estoppel, 6th Edition, pp. 639-640:
Situations may arise, in which a contract should be held an estoppel, as in certain cases where only an inadequate right of action would, if the estoppel were not allowed, exist in favour of the injured party. In such a case the estoppel may sometimes be available to prevent fraud and a circuity of action. In the case before us Gangabai as well as the plaintiff could be deemed to have agreed that Gangabai would not take a son in adoption to her deceased husband Shankar in the future, for the consideration of Rs. 8,000 paid by the Defendant 1 to the plaintiff. The defendant 1 acted upon this position to her detriment and paid in fact a sum of Rs. 8,000 to the plaintiff. The plaintiff accepted this sum of Rs. 8,000 and relinquished all rights which he then had or which he could ever have had in the future to the property belonging to the family of Devarao. Gangabai continued to accept maintenance in accordance with the decree for maintenance which was passed in her favour and the parties all along acted upon this agreement upto the time that the lawyer advised Gangabai to adopt the plaintiff again after the decision of their Lordships of the Privy Council in - 'Anant v. Shankar' . To allow the plaintiff to take up this position now would be to encourage a fraud or circuity of action which according to the passage from Bigelow above quoted would be the last thing a court would ever countenance. Treating it therefore as an agreement or an undertaking given by Gangabai as well as the plaintiff, even so the plaintiff would be estopped from contending that Gangabai had not lost her right of adoption as set out in term No. 2 of the award and asserting that she could adopt the plaintiff as a son to her deceased husband on the 12th December, 1943.
36. In addition to the above Decisions, the learned Counsel referred to certain passages in Estoppels and the Substantive Law by ARTHUR CASPERSZ, Fourth Edition. The passages pressed into service are para 30 p. 43, para 40, para 42. They are as under:-
30. In order to know what Representations are it has been usual to refer to the proposition in Carr.V.London and North-Western Railway Co. (L..R.10 C.P. 307) (1875) and bearing in mind Lord Macnaghten's warning that we should cling to principles rather than rules, there is nevertheless no better way to approach this subject than by examining a certain number of concrete instances. The abbreviated propositions are as follows; and to these must be added the cases of Silence and Holding Out.
A, by words or conduct, wilfully endeavours to cause B to believe in a certain state of facts which A knows to be false. Then if B believes in that state of things and acts upon his belief, A having knowingly made a false statement, is estopped from averring afterwards that such a state of things did not in fact exist.
A, by conduct of culpable negligence, calculated to lead B into the belief of a certain state of facts, causes B to so believe and to act by mistake upon such belief to his prejudice; such conduct of culpable negligence on A's part being the proximate cause of B's so acting. Then A cannot be heard afterwards, as against B, to shew that the state of facts referred to did not exist.
Two propositions remain to be classified under the third head.
A, either in express terms or by conduct, makes a representation to B of the existence of a certain state of facts which he either does not believe to be true or has no positive belief either way, but, nevertheless he intends it to be acted upon in a certain way B does so act to his damage in that belief. Then A is estopped from denying the existence of that state of facts.
A so conducts himself that a reasonable man would take his conduct to mean a certain true representation of facts intended to be acted on in a particular way. B does so act in that belief to his damage. Then A may not deny that the facts were as represented.
40. It is, however, with reference to the third class of cases that the greatest difficulty has arisen, especially where statements have been made, expressly or by implication, which cannot properly be characterised as representations at all. It must now be regarded as settled that an estoppel may arise as against persons who have not wilfully made any mispresentation, and whose conduct is free from fraud or negligence, but as against whom inferences may reasonably have been drawn upon which others may have been induced to act.
The doctrine of Acquiescence may be stated thus: 'If a person having a right, and seeing another person about to commit, or in the course of committing, an act infringing upon that right, stands by in such a manner as really to induce the person committing the act, and who might otherwise have abstained from it, to believe that he assents to its being committed, he cannot afterwards be heard to complain of the act.' This is the proper sense of the term acquiescence,' and in that sense may be defined as acquiescence, under such circumstances as that assent may be reasonably inferred from it, and is no more than an instance of the law of estoppel by words or conduct.' Acquiescence is not question of fact but of legal inference from facts found.
42. In such case the conduct must be such that assent may reasonably be inferred from it. The doctrine of acquiescence has, however been stated to be founded upon conduct with a knowledge of legal rights, and as stated in some cases appears to imply the existence of fraud on the part of the person whose conduct raises an estoppel. The remarks of the Judicial Committee, however, in SARAT CHUNDER DEY v. GOPAL CHUNDER LAHA, L.R.19 I.A.203, 20 Calc.296 (1892) clearly extend the doctrine of estoppel by conduct of acquiescence or indifference to cases where no fraud whatever can be imputed to the person estopped, and where that person may have acted bona fide without being fully aware, either of his legal rights, or of the probable consequences of his conduct. In every case, as already pointed out, the determining element is not the motive or the state of knowledge of the party estopped, but the effect of his representation or conduct as having induced another to act on the faith of such representation or conduct.
The above part is relied on in support of the argument that motive is not the determining element. Appellants also referred to the following passages from SNELL'S PRINCIPLES OF EQUITY, 27th EDITION, of the 12 Maxims of Equity found on page 27 in Chapter 3, Maxims at Serial Nos. 5, 6 and 7 were pressed into service. They are as follows:-
' 5. He who seeks equity must do equity.
6. He who comes into equity must come with clean hands.
7. Delay defeats equities, or, equity aids the vigilant and not the indolent : Vigilantibus, non dormientibus, jura subveniunt.'
37. Referring to the Maxim that he who seeks equity must do equity, the learned Counsel for the appellants submitted that the plaintiff in seeking equitable reliefs of declaration and injunction had by his conduct thrown to the winds the equitable principles by giving an impression to the purchasers of the properly that his son defendant-3 was the full owner of the plaint schedule land and he had not prevented his son from raising any loan or borrowing the amount by executing the document like Ex.D.11 and by his conduct he has supported his son Ganesh in claiming tenancy rights under the appellants in respect of the plaint schedule land. With such conduct it was contended that plaintiff was not entitled to discretionary equitable reliefs when it (his conduct) showed that he was trying to somehow get possession of the plaint schedule land by hook or crook.
38. The appellants relied on the following passage on page 30 under the title 'He who seeks equity must do equity':-
'To obtain equitable relief the plaintiff must be prepared to do equity' in its popular sense of what is right and fair to the defendant. This is a rule of 'unquestionable justice' which, however, 'decides nothing in itself: for you must first inquire what are the equities which the Defendant must do, and what the plaintiff ought to have.'
The following passages are also pressed into service by the learned Counsel for the appellant. Firstly on page 32 under the title 'He who comes into equity must come with clean hands':-
'This maxim, which seems not unrelated to the ex turpi causa non oritur actio of the common law, is very similar to the previous maxim; but it differs from it in looking to the past rather than the future. The plaintiff not only must be prepared now to do what is right and fair, but also must show that his past record in the transaction is clean; for 'he who has committed iniquity.... shall not have Equity.'
Secondly on page 33 para 7 under the heading 'Delay defeats equities, or equity aids the vigilant and not the indolent:- vigilantibus, non dormientibus, jura subveniunt'
'In the words of Lord Camden L.C. a Court of equity 'has always refused its aid to stale demands, where a party has slept upon his right and acquiesced for a great length of time. Nothing can call forth this court into activity, but conscience, good faith, and reasonable diligence; where these are wanting, the Court is passive, and does nothing.' Delay which is sufficient to prevent a party from obtaining an equitable remedy is technically called 'laches'.
Nextly on page 561 Section 1. Estoppel at Common Law under the heading 'The doctrine' which reads as under:-
'The basic idea of estoppel at common law is that of precluding a man from denying the existence of a state of affairs which he has previously asserted. At common law, estoppel was at first narrowly confined to various formal matters, and estoppel in pais (i.e. by informal words or conduct) was but a shadow of its modern self. Equity greatly extended the doctrine, and in the eighteenth century the common law came to adopt and apply the equitable rules. By the nineteenth century, both at law and in equity, the rule was that there would be an estoppel where by words of conduct there had been a representation of existing facts (not of law) which was intended to be acted upon and was in fact acted upon to his prejudice by the person to whom it was made. The maker of the representation (even if an infant at the time of making it) will not be allowed to allege in proceeding against the person so acting that the facts are other than he has represented them to be.'
The following passages from the 'Law relating to Estoppel by Representation', Second Edition by George Spencer Bower are relied on page 4, Article 3:-
'It will be convenient to begin with a satisfactory definition of estoppel by representation. From a careful scrutiny and collation of the various judicial pronouncements on the subject, of which no single one is, or was perhaps intended to be, quite adequate, and many are incorrect, redundant, or slipshod in expression, the following general statement of the doctrine of estoppel by representation emerges: where one person ('the represent or') has made a representation to another person ('the representee') in words or by acts and conduct, or (being under a duty to the representee to speak or act) by silence or inaction, with the intention (actual or presumptive), and with the result, of inducing the representee on the faith of such representation to alter his position to his detriment, the represent or, in any litigation which may afterwards take place between him and the representee, is estopped, as against the representee, from making, or attempting to establish by evidence, any averment substantially at variance with his former representation, if the representee at the proper time, and in the proper manner, objects thereto.
Article 48 on page 42:-
'A representation may be made by any of the means available for the expression and communication of thought. Its forms and modes are infinite. Any physical symbol which, being used by one, reproduces in the mind of another the idea of an existing fact, or past event, is a representation. A representation may, in the first place, be expressed in language either written or spoken It may, secondly, be implied from acts and conduct. Or, thirdly, under certain conditions, it may be inferred from silence or inaction.'
Article 51 on page 43:-
'51. The second class of representations comprises those which are implied from the acts or conduct of the represent or. Almost unknown before the nineteenth century, this class of estoppel has so rapidly increased in bulk and importance that it may now be said without exaggeration that most of the cases of estoppel by representation during the last hundred years and more have been of this type. Since at least the year 1837 'words' and 'conduct' have been continuously asserted in judicial exposition as two separate forms in which, with equal effect as an estoppel, a representation may be made.'
Article 55 on page 45:-
'It is well established that under certain conditions silence or inaction may constitute a representation, as much as positive language or conduct, for the purpose of an estoppel.
The main condition subject to which alone silence or inaction counts as a representation is that a legal (not a mere moral or social) duty shall have been owed by the represent or to the representee to make the disclosure, or take the steps, the omission of which is relied upon as creating the estoppel.'
Article 56 on page 47 :
'5,6. Where a person, having a title, right, or claim to property of any kind, perceives that another person is innocently, and in ignorance, conducting himself with reference to the property in a manner inconsistent with such title, right, or claim, it is the duty of the former to undeceive the other party forthwith; if he omits to do so, and if all the other conditions of a valid estoppel are satisfied, he is precluded from exercising or asserting his right or title or claim as against such other party on any subsequent occasion. In such cases, the law follows the language of the Church in the Marriage Service- 'Let him now speak, or else hereafter for ever hold his peace', - and regards the absence of notice or protect as a representation of the absence of the right, title or interest which should have been the subject of such notice or protest. The same consequences follow the suppression of any incumbrance, charge, or lien, which the party may have on the property.'
Article 74. on page 69.
'It is relevant at this point to make mention of the expression 'estoppel by negligence', the use of which has encouraged some to consider this so-called variety of estoppel as in a separate class. It is conceived that there is no justification whatever for such a special classification. The term 'estoppel by negligence' is used, both in the decisions and in the textbooks, to signify those examples of estoppel in which the silence of one under a duty in the circumstances to speak will be taken to estop him from denying the truth of the assumption which by his silence he has allowed to be made. It is this breach of a duty to speak which is the negligence which is alluded to in the term 'estoppel by negligence'. It must be understood that those examples of estoppel, which in some classifications are dealt with as 'estoppel by negligence', have already been comprehensively considered in the earlier part of this chapter, being dealt with as estoppels by silence or inaction.'
39. Having regard to the principles of estoppel as noted above it was for the plaintiff to have taken action against his son third defendant-Ganesh preventing him from disposing of the property by saledeed Ex.D.11. He has not done that. He has not taken any step to get rid of the sale deed executed by the third defendant Ganesh from 1972 to the date of filing of the suit. Having regard to their joint living and knowledge of plaintiff about activities of his son defendant-3, plaintiff cannot be permitted to take advantage of his own inaction and negligence and to grant him the relief prayed for in his suit would amount to helping him in his fraudulent acts. Therefore to prevent circuitous fraudulent action of the plaintiff he is to be estopped by his own negligent and faulty conduct.
39A. The principles of estoppel are to be invoked for preventing injustice and they have to serve an important purpose in the administration of justice as held in the Decision of the Supreme Court in S.Shanmugam Pillai v. K. Shanmugam Piliai as seen above. In order to secure justice, the ultimate aim of law, these principles of estoppel, election and family settlement etc. are to be invoked and applied. Their importance cannot be minimised when the Supreme Court of India hesitated to narrow down their scope. There is no point in acceding to the contentions on behalf of the plaintiff. The plaintiff has sold adjoining portions of suit land to one H.S. Thapa and to Fortune Cotton Mills and on those properties factories have been erected and those pieces of lands are put to. industrial use and the plaintiff is not making any grievance in respect of those alienations. Having regard to the facts of the case and the equitable principles referred to above, it is to be held that the plaintiff's belated action which is collusive, pernicious, fraudulent and unjust needs to be estopped.
40. The learned Counsel for the plaintiff contended that the appellants went on building their case stage by stage and the documents relied on by the appellants were not placed on record earlier and therefore the plaintiff had no opportunity to meet and explain the documents and the case put-forth on their behalf and the learned Counsel wanted this aspect to be taken into consideration. There is no merit in this contention. Even if the appellants' documents were brought on record after the plaintiff closed his evidence, it was open to him to seek an opportunity to adduce rebuttal evidence. Plaintiff could have also reserved his right of leading rebuttal evidence under Order 18 Rule 3 CPC. The grievance now made out that the plaintiff had no opportunity to meet the appellants' evidence is therefore rejected. Even at this stage also, the plaintiff has not come out with the details as to how he has not been able to meet the case of the appellants.
41. Taking into consideration the above referred circumstances and evidence it is held that the contention of the appellants that the plaintiff is estopped from filing the present suit for the reasons explained needs to be upheld.
42. With regard to questions of title and possession it is to be noted that the learned Counsel for the plaintiff-respondent Sri Nanjundaswamy submitted that the sale deeds Exs.D.11 and D.12 are brought-up documents to enable the appellants to contend that they are owners in possession of the plaint schedule land. It is submitted that attestors are common to both the sale deeds Exs.D.11 and D.12 and consideration has passed only from the appellants to Ganesh and stamp papers for both the sale-deeds were purchased on the same day and that typing of both the sale deeds is done in the same machine and that the alleged author of the sale-deeds Sri Jayachandra Shetty Advocate is not examined and that vendors also are stated to have not been examined to explain delivery of possession etc., and above all no explanation has been given as to why appellants are not examined in person. It is contended that the appellants are deliberately kept back and their brother who is not a party to the suit has come forth and his evidence according to the learned Counsel does not substantiate either the contents of the sale deeds or the factum of possession of the land by the appellants. The simple answer to all these contentions is that there is no law that party to the proceedings alone should be examined to substantiate his contentions. Persons knowing the transactions and facts are competent witnesses, The documents have been freely referred to in the pleadings and are admitted in evidence without any objection. Execution of the document is not disputed. When the documents were marked and admitted in evidence no objection was raised on behalf of the plaintiff and when once a document is properly admitted in evidence the contents of that document are also admitted in evidence though those contents may not be conclusive evidence as held in P.C.PURUSHOTHAMMA REDDIAR vs. S. PERUMAL : [1972]2SCR646 . The learned Counsel for the plaintiff relying on RAMJI DAYAWALA AND SONS (P) LTD. vs. INVEST IMPORT : [1981]1SCR899 contended that mere proof of the handwriting of a document would not tantamount to proof of all the contents or the facts stated in the document and if the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have been proved by admissible evidence i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue. It may be noted here that the contents of the documents have not been disputed and no objection was raised while marking and admitting the document in evidence and therefore no contention can be raised at the appellate stage to urge that the contents are not admitted and they are to be proved by examining competent witnesses. In proof of the contents of the documents appellants' brother D.W.1 has given evidence in addition to examining the other witnesses. Therefore there is no merit in the submissions made in this context. Since Exs.D.11 and D.12 are not required to be attested, non-examination of attestors cannot be pressed into service for any purpose. Therefore there is no merit in the contention that sale deeds Exs.D.11 and Ex.D.12 are not proved.
43. It is submitted on behalf of the plaintiff - respondent No. 1 that no evidence has been let in about the delivery of possession of the plaint schedule land in terms of sale deed Exs.D.11 and D.12. It is also contended that since neither of the appellants is examined, there is no proof of the factum of possession of the land by the appellants. The learned counsel Sri Nanjundaswamy also submitted that in preference to the evidence of the appellants, the plaintiff has given evidence that he was in possession and he was cultivating and his evidence has been corroborated by the recitals in the regrant order wherein the competent authority proceeded to regrant the land only after finding out that it was in possession of plaintiff and his sons. This argument overlooks the material on record. Evidence of D.W.3 Venkataramaiah, the Village Accountant and the entries in Ex.P.9 show that cultivation of the land was entered in favour of the appellants for the year 1972-73 and without following the procedure, cultivation in the names of the appellants has been suddenly discontinued for the year 1973-74 and the disciplinary proceedings initiated by the Tahsildar against the Village Accountant for making entries under the pressure of the plaintiff are pending and therefore in the circumstances there is no merit in the contention of the plaintiff that appellants have failed to prove, their possession of the plaint schedule land on the date of suit. Admittedly the regrant was in favour of defendant-3 and his father the plaintiff had consented to such regrant and there was no hindrance to delivery of possession to the purchasers under Exs.D.11 and from then to the appellants under Ex.D.12. Therefore the contentions on the point that plaintiff was in possession and that the appellants have failed to prove their possession on the date of suit are without any substance and are rejected.
44. The contention that the grant in favour of the third defendant Ganesh was for and on behalf of the family of the plaintiff, defendants 3 to 6 is not of much consequence when the legal position as to rights of members of the joint family to claim their shares from the grantee is not at all disputed. Even the junior members had a right to claim their share from the grantee under the Mithakshara of Hindu Law is not disputed and the same is not in issue.
45. D.W.1 K.M. Jayappa, the younger brother of the appellants has stated that the land is in possession of the defendants. To prove possession of defendants 1 and 2, it is not necessary that evidence should be let in as to how and in what manner whether by a tractor or by bullocks the land is cultivated or what crops are raised. Absence of such details in the face of material proving appellants' possession . satisfactorily cannot be made much of.
46. The learned Counsel for the appellants submitted that the suit of the plaintiff is barred by estoppel by judgment in view of Explanation VI to Section 11 C.P.C. Section 11 and Explanation VI to Section 11 C.P.C. read as under:-
'Section 11. Res judicata - No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.
Explanation VI : Where persons litigate bonafide in respect of a public right or of private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this Section, be deemed to claim under the persons so litigating.'
It is pointed out that defendant-3 Ganesh the son of the plaintiff was litigating against appellants 1 and 2 before the Land Tribunal for occupancy rights in LRF/2422/74-75 and in Writ Petition No. 5432 of 1982 (Ex.D.22 on page 360 of the paper-book), in Writ Petition No. 19578 of 1979 (Ex.D. 18 on page 302 of the paper book) and in Writ Appeal No. 1972 of 1986 dated 13th June 1990 against the order dated 25-6-1986 passed in Writ Petition No. 5432 of 1982. In these proceedings he was prosecuting and defending the action as a regrantee of the land survey No. 3 of Bommanahaili village and it was definitely on behalf of the persons interested in the regrant and therefore on behalf of the plaintiff and defendants 4 to 6 in the suit., and all these proceedings went against defendant-3 Ganesh and these Decisions bind the plaintiff but according to the learned Counsel Sri Nanjundaswamy for repondent-1-plaintiff, he (defendant No. 3) is claiming relief on behalf of himself and not for the members of the joint family consisting of defendants 4 to 6 and others. It is held in KOTHANDARAMA GRAMANI vs. SELLAMMAL : AIR1959Mad524 as under:-
'Where the previous suit was filed by a Hindu wife against her step-sons for a declaration of her right to the properties under a deed of settlement executed by her husband in her favour and the defendants contested the suit on the ground that the properties were joint family properties or atleast jointly acquired properties and that the father could not therefore validly make a settlement in favour of their step mother, there was on the one side a claim by the father's alienee setting up her exclusive title which was contested by the other members of the family pleading title in the family. That would certainly amount to litigating on behalf of the family. Hence Explanation VI to Section 11 would apply and the decision in that suit would bar by res judicata a subsequent suit by the son of one of the defendants for a , declaration that the settlement deed was not valid and binding on him.'
Having regard to the facts of the case on hand it cannot be said that Ganesh was agitating for relief only for himself. He was so doing on behalf of his father and his brothers. Therefore the decisions rendered against him in those proceedings are binding on the plaintiff and his other sons as well. The contention that this plea is not raised in the written statement and therefore it should be deemed to have been abandoned is not correct. Nodoubt this plea was not submitted for consideration before the learned trial Judge. The present plea is based on pleadings and evidence available in the case and on the appellants' plea of estoppel by conduct raised in the written statement. The respondents contention that appellants should be prevented from raising such plea in the appeal when he has got an opportunity to meet the same is unsustainable. With the material on record it is found that the plaintiff who represents his sons including Ganesh is constructively barred from proceeding with the present suit and thus the contention of the appellants in that behalf is upheld.
47. It was contended by Sri Nanjundaswamy, the learned Counsel for respondent-1 plaintiff that permission to alienate sought for and obtained by the third defendant Sri Ganesh is to be construed as having been done for himself alone and in that view the alienation effected is to be held as binding only against the share of alienating-third defendant Ganesh and therefore it is contended that the finding of the Court-below that it does not bind the share of other brothers is correct. As this submission suits their purpose, the plaintiff and defendants 4 to 6 though contended that action initiated by Ganesh was for the benefit of the entire joint family, they have conveniently now come out with the plea that permission to alienate was sought only by Ganesh and in his individual capacity and the subsequent alienation is binding on his share alone. It is seen that all through Ganesh has indulged in speculative litigation with the appellants to some-how get possession of the plaint schedule land from them and without objecting to his transactions, the plaintiff went on helping his son and took no steps to annul the alienation and it is now not open to the plaintiff and other brothers to contend that the alienation effected by Ganesh binds his share alone.
48. In support of his plea that Section 11 Explanation VI CPC did not apply to the facts of the case as submitted by the appellants, the learned Counsel for first respondent referred to some of the Decisions. He relied on Sunderabai v. Devaji Shankar Deshpande for the proposition that only in those cases where the rights claimed in the two suits were different that the subsequent suit would not be barred as res judicata even though the property was identical. Mere identity of the properly in the two suits is not the criterion to hold that the subsequent suit is barred. If the rights claimed in the two suits are different, the bar of res judicata does not apply. In the suit on hand, the rights claimed in respect of the land are almost the same. Ganesh fought for some-how getting possession of the land alleging personal cultivation of the same on the date the Land Reforms Act was enforced. The second Decision relied on by the first respondent-plaintiff is the one reported in NARAYANA PRABHU VENKATESWARA PRABHU vs. NARAYANA. PRABHU KRISHNA PRABHU : [1977]2SCR636 . In this Decision the word 'claiming a right in common for themselves and others' in Explanation VI of Section 11 CPC are interpreted. The grant made in favour of Ganesh is claimed by his father and other brothers as being for the benefit of the entire family. They cannot contend that in making a claim before the Land Tribunal he was doing so only for himself and therefore the litigation fought therein was not for their benefit. The principle stated in Narayana-Prabhu Venkateswara Prabhu's case has no application to the facts on hand. Further reliance is placed on NAGTA SINGH vs. SHIVSINGH : AIR1981All75 , SHER SINGH vs. MOHD. ISMAIL : AIR1981All114 . These two cases considered the applicability of Section 11 CPC and the principles enunciated in the facts of those cases cannot be extended to the case on hand. In Nagta Singh's case question of title as Maurusidar of land in defendant's possession could not have been raised in the earlier suit and therefore it was held that that point could not be constructive res judicata by reason of the decision against defendant's title in earlier suit. In Sher Singh's case finding in the suit by landlord for ejection of joint tenant was held not to operate as res judicata in the suit by one joint tenant for ejection of the other tenant. Another case pressed into service is SURAJPATI vs. DY. DIRECTOR OF CONSOLIDATION, ALLAHABAD : AIR1981All265 . It is a Decision under Section 11 CPC considering the bar of res judicata. In that suit, opposite parties claimed co-tenancy rights in respect of certain property as descendants of deceased and failure to establish the relationship with the deceased in previous litigation concerning certain other property was held to operate as res judicata in respect of the present claim. Defendant-3 also referred to COMMISSIONER, CORPORATION OF THE CITY OF BANGALORE vs. KAPOORCHAND BROTHERS, BANGALORE : AIR1982Kant23 , in which this Court held that dismissal of Writ Petition would bar subsequent suit for the same relief by general principles of res judicata. It was further held that in the facts and circumstances of the case the order passed in earlier Writ Petition did not operate as resjudicata and the suit was not barred by that order. In the earlier Writ Petition, the plaintiff in the suit was not a party and while dismissing the Writ Appeal as withdrawn it was made clear that it shall not in any way prejudice adjudication of the rights of the parties in the suit pending in the Munsiff Court. Therefore it was held that the bar of res judicata did not operate. The last Decision relied on by the third defendant is MOHAMMAD ISMAIL vs. THE STATE OF KARNATAKA : AIR1985Kant123 . According to this Decision to apply the bar of resjudicata, the requirements of Section 11 C.P.C. have to be strictly complied with. The facts disclose that a Writ Petition had been filed by M to quash order in respect of property and in previous petition by his wife N to stay the operation of that order, High Court had inaptly upheld that order and as M was not a party to that petition and as he was not claiming title to the property, through his wife but as purchaser under the sale deed by P, it was held that the previous order did not bind M and did not operate as res judicata. These Decisions have no application to the facts and are accordingly found not useful to defendant-3.
49. It is the submission made on behalf of the appellants that plaintiff's suit is not maintainable on the ground that plaintiff has prayed only for declaratory relief that he is the absolute owner and he has failed to seek the relief of possession as he has not been in possession as asserted by them and in that behalf the appellants relied on Section 34 of the Specific Relief Act, 1963. The said Section reads as under:-
'34. Discretion of court as to declaration of status or right. -Any person entitled to any legal character, of to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not, in such suit, ask for any further relief: Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.'
Perusal of Section 34 of the Act extracted above shows that a plaintiff not being in possession, omits to seek possession and seeks only declaration of title his suit becomes not maintainable. The suit instituted by the plaintiff is a suit for declaration that he is the absolute owner and he has asked for consequential relief of injunction on the allegations that he is in possession. Earlier discussion in the judgment shows that plaintiff was not in possession and the possession of the appellants over the plaint schedule land was protected by interim injunction issued by this Court in the Writ Petitions referred to in extenso. The entries in the pahani records are also referred to along with the evidence of P.VV.3, Venkataramaiah, the Village Accountant and that material shows that it was the appellants and not the plaintiff who were in possession of the land in dispute. In such circumstances, suit of the plaintiff will be hit by the proviso to Section 34 of the Specific Relief Act, 1963 as held in RAM SARAN vs. SMT. GANGADEVI : AIR1972SC2685 of the Judgment on page 2686 is excerpted as under: -
'We are in agreement with the High Court that the suit is hit by Section 42 of the Specific Relief Act. As found by the fact-finding Courts, Ganga Devi is in possession of some of the suit properties. The plaintiffs have not sought possession of those properties. They merely claimed a declaration that they are the owners of the suit properties. Hence the suit is not maintainable.'
On this count also the suit of the plaintiff-respondent-1 is held to be not maintainable.
50. The relief of declaration as also the relief of injunction are to be granted in the exercise of discretionary powers of the Court. Section 34 of the Specific Relief Act, 1963 says that Court may, in its discretion make a declaration prayed for by the plaintiff. Further the grant of preventive relief under Section 36 of the Specific Relief Act by way of injunction temporary or perpetual is also at the discretion of the Court. Under Section 41 of the Specific Relief Act, 1963, an injunction cannot be granted:-
(a) to (f) xxx xxx xxx
(g) to prevent a continuing breach in which the plaintiff has acquiesced.
(h) xxx xxx xxx
(i) when the conduct of the plaintiff or his agents has been such as to disentitle him to assistance of the court.
(j) when the plaintiff has no personal interest in the matter.
From the analysis of the evidence referred to above, it is evident-that though the son-defendant-3 alienated the property as far back as in the year 1972 and engaged himself in litigation by taking proceedings before the Land Tribunal and before the High Court which were known to the plaintiff and the plaintiff kept quiet for long ten years and went on aiding and abetting his son in attempts to some-how get back possession of the plaint schedule land. He practically acquiesced in the sale and allowed his son to make a claim only in respect of tenancy rights by filing Form No. 7. He never questioned his son Ganesh who was living with him in joint family as a member and practically under the same roof as admitted. The plaintiff had practically waived his rights by giving up his claim and by making a statement before the competent revenue authority that he was withdrawing his application and he wanted the land to be granted only in the name of his son, third defendant-Ganesh who opposed his (father's) application alleging that he had made number of alienations and those alienations were conceded by the father. To entitle oneself to the discretionary relief of declaration and injunction, one has to come with clean hands and one's conduct must be free from blame. But the events as have unfolded in the case show that the conduct of the plaintiff was not at all fair and he in association with his son, was out to harass the appellants and was somehow trying to deprive them of possession of their land. The man with such conduct shall not be entitled to equitable and discretionary relief of declaration or injunction. In AMERICAN EXPRESS BANK LTD. vs. CALCUTTA STEEL CO. : (1993)2SCC199 the Court has held as under:-
'Undoubtedly declaration of the rights or status is one of discretion of the court under Section 34 of the Specific Relief Act, 1963. Equally the grant or refusal of the relief of declaration and injunction under the provision of that Act is discretionary. The plaintiff cannot claim the relief as of right. It has to be granted according to sound principles of law and ex debito justitiae. The court cannot convert itself into an instrument of injustice or vehicle of oppression. While exercising its discretionary power, the court must keep in its mind the well-settled principles of justice and fair play and the discretion would be exercised keeping in view the ends of justice since justice is the hallmark an it cannot be administered in vacuum.
..... Before granting or refusing to grant relief of declaration or injunction or both the court must weigh pros and cons in each case, consider the facts and circumstances in their proper perspective and exercise discretion with circumspection to further the ends of justice.'
Having regard to the provisions of law referred to above and the Decision of the Supreme Court and having regard to the conduct of the plaintiff one is forced to conclude that here is a man whose conduct does not entitle him to the discretionary relief of declaration of title or injunction and to grant the relief prayed for by him would tantamount to perpetrating injustice. Hence, plaintiff has to be non-suited for the conclusions reached above.
51. In Ex.D.11 found at page 265 of the paper-book on the date of sale-deed dated 23-10-1972 defendants 4 to 6 are shown as aged 10 years, eight years and five years respectively. The youngest son defendant-6 being five years on the date of Ex.D.11 would attain majority after 13 years and he will have another three years to impeach the transaction as provided under the relevant provisions of the Limitation Act namely Sections 6 and 8 of the Limitation Act and Articles 58, 69, 64 and 65 of the Limitation Act, 1963. In that event 16 years (13+3) from 23-10-1972 would be the last date for impeaching the sale transaction. It may be noted that none of the sons of the plaintiff and none of defendants 4 to 6 has come to Court claiming relief in pursuance of the observations made in the Judgment in Writ Petition No. 5432 of 1982. It is not the case of the plaintiff that he has filed the suit for and on behalf of his sons. The plaintiff has not sued for the relief of possession. The claim on behalf of the minor sons of the plaintiff in the suit is also barred by limitation. Therefore none of the contentions raised on behalf of the plaintiff-respondent-1 is sustainable. On the other hand, the trial Court misdirected itself in proceeding to hold that the alienation effected by Ganesh was binding only on his share and that the plaintiff was not estopped from filing the present suit.
52. Points 1 to 5 framed for consideration in the Appeal are found against the plaintiff for the reasons stated in the foregoing paras. Plaintiff has harassed the appellants. His conduct is not bonafide, he is guilty of laches, negligence and acquiscence. His suit is therefore barred under principles of estoppel. Since he was not in possession of the land on the date of suit and since he has not prayed for possession, his suit is also hit by Section 34 of the Specific Relief Act, 1963.
53. The findings and the judgment of the trial Court for the reasons stated above need to be reversed. Appear succeeds and the following order is passed:
ORDER
The appeal is allowed. Judgment and decree of the trial Court are set-aside. The suit of the plaintiff is dismissed with costs through-out.