Balavant Basavant Mutakekar and anr. Vs. Siddalingappa Basappa Aragavi and ors. - Court Judgment

Excerpt:
civil procedure code, 1908 (central act no. 5 of 1908) - section 100 -- defendant encroached on six gunthas of land belonging to the plaintiff and put up a building. trial court held that by adverse possession the defendant has perfected his title. the appellate court reversed the decree of trial court but so far a possession is concerned held that as the building is in existence for over thirty years, the plaintiffs were, at best, entitled to work out their remedy by seeking value of 6 gunthas of encroached land. in second appeal by the plaintiff this court held -- decree of the first appellate court rejecting the prayer for possession set aside as the defendants had started putting up a building just round about the time of filing of the suit and the long pendancy of suit between 1962 and 1990 does not create any rights in favour of the defendants.;in the instant case the first appellate court, having found that the plaintiffs were entitled to a declaration of title to the property, thought that as on the day it was making the order, the building constructed by the defendants was in existence fpr nearly 30 years and that therefore it is inequitable to grant a decree for possession and mandatory injunction for removal of the construction and that the plaintiff should work out his remedy to secure the value of the encroached 6 guntas of land. it is elementary that the right claimed by a party is to be adjudicated on the day the plaint was presented unless subsequent events have rendered the relief claimed inappropriate. in a case like this, equities as affecting the relief claimed in the plaint should have arisen prior to the institution of the suit and should have been pleaded and proved by the defendants. all that the defendants sought to urge in support of their claim was that the plaintiffs were aware of the construction being put up by them since 1960-61 and that having stood by and allowed the construction being put up, the plaintiffs are not entitled to any relief of mandatory injunction or possession. the first appellate court held that the plaintiffs were not guilty of any laches in bringing the suit and were not thus disabled from securing the relief of possession, but, nevertheless went on to deny the relief claimed by them for possession and mandatory injunction. even the trial court has found that the plaintiffs were not guilty of any deliberate inaction in pursuing their remedy when once they came to know of the infraction. in bodi reddy's case referred to above, the only circumstance when the relief can be denied is stated and that is, that the plaintiff's should be guilty of acquiescence amounting to equitable estoppel. at page 595 and 596 of the report in bodi reddy's case referred to above, acquiescence as affecting a claim, has been elaborately stated, it is clear that in order to constitute acquiscence amounting to equitable estoppel, the plaintiffs must be shown to have conducted themselves in such a manner as to abandon a equitable right. in the instant case the courts below have rightly concluded that the plaintiffs were unaware of the encroachment on the land till december 1961 and immediately instituted the suit, in the circumstances, there is no way by which the plaintiffs right to secure the possession of encroached extent of 6 guntas of land could be denied, the mandatory injunction being only incidental to the main relief of possession. lapse of time between the date of presentation of the plaint and the date of decision of the trial court or the appellate court, as the case may be, cannot certainly be regarded as creating an equitable situation in favour of the defendants as to deny the relief, otherwise entitled. the order of the civil judge refusing possessions and mandatory injunction on the ground mentioned by him cannot be sustained. the appeal, therefore deserves to be allowed with costs while the cross-objections deserves to be dismissed. - [a.v. srinivasa reddy, j.] when order 8 rule 11 cpc is to be adhered to -- held -- it is only where there is furnishing of a copy of the plaint or petition is made mandatory that the provision of order 8 rule 11 cpc could be adhered to. as there is no such provision on the act or in the rules, making it mandatory on the part of the petitioner to serve a copy of the petition on the defendant along with notice, order 8 rule 11 cpc can have no application at all to a proceedings under the act. the order passed is without application of mind and in total disregard of the facts and circumstances of the case as also the provisions governing the procedure that ought to be mandatorily followed under the act. (b) karnataka rent act, 1999 (karnataka act no. 34/2001) - section 42 -- karnataka rent rules, 2001 -- rule 33 -- civil procedure code, 1908 ( central act no. 5 of 1908) --order 5 rule 2, order 8 rule 11 -- trial court took exception to the filing of the objection statement beyond the outer period prescribed in the civil procedure code and rejected it -- order of trial court set aside and applicability of section 42(1) of the act read with order 5 rule 2 and order 8 rule 11 cpc discussed. held: the impugned order prejudicially affects the right of the petitioners since he is estopped from meeting the case as pleaded by the respondent in her petition. in the absence of pleadings by the petitioner-tenant the court may well refuse to consider the oral evidence that maybe led by him in support of any defence that may be open to him. before passing such an order the court was duty-bound to call upon the petitioner in terms of section 42 (1) of the act to show cause why such an order should not be passed against him. it is quite regrettable that the court-below passed the order when the petitioner-tenant had not even taken a single adjournment for filing the objections. the order is passed overlooking sub-section(3) of section 42 which provides that a party is entitled to request and obtain three adjournments throughout the proceedings and the adjournments could be obtained at any stage of the proceedings. the order-sheet discloses that even this benefit had not been availed of by the petitioner-tenant for filing the statement as he had promptly filed it on the very next date of hearing. passing of the impugned order in the said facts and circumstances of the case was not only most unreasonable but highly regrettable. it smacks of an approach which is injudicious and totally lop-sided. the impugned order betrays a total lack of understanding of the laws of procedure and the manner in which they should be applied to specific instances. the impugned order is, therefore, liable to be set aside. (c) civil procedure code, 1908 ( central act no. 5 of 1908) - order 5, rule 2 , order 8, rule 11 -- karnataka rent act, 1999( (karnataka act no. 34/2001) -- section 42 --summons not accompanied by a copy of the petition --held -- copy of petition was furnished to him only on the date previous to the date of filing of the statement by the tenant. in fact, the provisions of order 8 rule 11 cpc could not have been applied at all to the case on hand as the summons was not accompanied by a copy of the petition as required under order 5 rule 2 cpc. the court-below before applying the principle enunciated in merchant and ors. v. shrinath chaturvedi, ought to have noticed that there is no legislative mandate in the present act mandating that the statement of objections is to be filed within 30, 60 or 90 days. on the contrary section 42(3) speaks of the entitlement of a party to seek for three adjournments in the entire course of the case which could be at any stage of the proceedings. the court-below failed to notice that it was by reason of the fact that such a mandate was there in the act, which was under its consideration, that the apex court while interpreting the said provision laid down the said principle. while interpreting the provisions of an act the court should try and give effect to the object of the act and in so doing it should be guided by the principles of purposive construction. the court-below misled itself in applying the provision contained in order 8, rule 11 c.p.c. disregarding the fact that the petitioner-tenant could have filed the statement of objections only after the copy of the eviction petition was served on him. in the present case the same was furnished to him only on the date previous to the date of filing of the statement by the tenant. in fact, the provisions of order 8, rule 11 c.p.c. could not have been applied at all to the case on hand as the summons was not accompanied by a copy of the petition as required under order 5, rule 2 cp.c. (d) civil procedure code, 1908 (central act no. 5 of 1908) - order 5 rule 2, order 8 rule 11 -- due service -- notice served on the defendant -- without tendering a copy of the plaintiff along with --cannot be construed as "due service". revision is allowed. - 7. the first appellant court found that the plaintiffs were the owners of 6 guntas of land on which the defendants had put up the construction and that plaintiffs were entitled to declaration of title to the property but were not entitled to the relief of possession or mandatory injunction on the ground that as on the day, the order was made by it, the building had been in existence for over 30 years and that the plaintiffs were at best entitled to work out their remedy by seeking the value of 6 guntas of land encroached upon by the defendants. an identical situation like the one on hand came upon for consideration in bodi reddy v. in a suit for recovery of possession, the prayer for mandatory injunction is only for the benefit of the defendant and if the defendant has any objection to the same, a mandatory injunction should not be granted, but the plaintiff is entitled to a decree for possession, liberty being given to the defendant to remove the construction within a specified period and in the event of his failure to do so, the plaintiff being authorised to remove the same at the expense of the defendant. in a case like this, equities as affecting the relief claimed in the plaint should have arisen prior to the institution of the suit and should have been pleaded and proved by the defendants.s.r. venkatesha murthy, j.1. in this second appeal the plaintiffs challenges the order of the first appellate court refusing to grant possession and mandatory injunction prayed for and the direction that the plaintiffs are at liberty to take appropriate proceedings for recovery of the value of the encroached 6 guntas of land from the defendants.2. the parties are referred according to their array in the trial court.3. the plaint schedule property is part of sy.no.731/3 of angol village, belgaum. sy.no. 731/3 measuring 30 guntas was the ancestral property of the plaintiffs and their uncle nagappa balappa mutakekar. long before 1948, the land was partitioned between the plaintiffs and the aforesaid nagappa balappa mutakekar, each getting 15 guntas. the eastern 15 guntas was numbered as 731/3/2 belonging to the plaintiffs and the western 15 guntas was numbered as 731/3/1 in favour of rakhavant kaur gurudayal singh who in turn sold the said land to the first defendant under a sale-deed dated 23.12.1948.4. till about the year 1961 there was absolutely no problem. the first defendant is alleged to have secured conversion of his land in sy.no. 731/3/1 for non-agricultural use. in december 1991 the first plaintiff who was in government service and second plaintiff who was a village accountant, came to know of the construction of a building on the land belonging to them and immediately thereafter he instituted os 9/62 on the file of the munsiff, belgaum for declaration of title to 6 guntas of land in sy.no. 731/3/2 and for possession of the same after demolition of the structure put up thereon by the defendants.5. the defendants who entered appearance denied the case of the plaintiffs and claimed that the land in question belonged to the second defendant and that the second defendant was putting put a construction thereon. the second defendant on being impleaded as a defendant in the suit or chest red the stand of the first defendant and contended that he is the owner of the property as the first defendant was only a benamidar; that there was no encroachment on the land belonging to the plaintiffs; that the plaintiffs have stood by and allowed the defendants to go on with the construction and that therefore the plaintiffs are not entitled to any relief.6. after a prolonged trial involving a remand and a fresh trial, the munsiff recorded a finding that the second defendant had perfected title to the property by adverse possession and that the plaintiffs had no right to any relief and dismissed the suit.7. the first appellant court found that the plaintiffs were the owners of 6 guntas of land on which the defendants had put up the construction and that plaintiffs were entitled to declaration of title to the property but were not entitled to the relief of possession or mandatory injunction on the ground that as on the day, the order was made by it, the building had been in existence for over 30 years and that the plaintiffs were at best entitled to work out their remedy by seeking the value of 6 guntas of land encroached upon by the defendants.8. in this second appeal, the respondents have also filed a cross-objection praying that the decree of the first appellate court be reversed so far as it relates to declaring the plaintiffs title to the property and for setting aside the decree of the first appellate court and for restoring the decree of the trial court.9. in this second appeal the substantial question of law on which the appeal is admitted reads as follows:i) whether the lower appellate court has exercised discretion in it judiciously and refusing the relief of mandatory injunction to the appellant and possession of six guntas of land?'ii) whether the decree of the first appellate court is liable to be set aside as sought by respondents herein?'10. it is undisputed that the entire land in sy.no. 731/3 measuring 30 guntas belonged to the predecessors in title of the parties to this suit. it is also not disputed that there was a partition long before the sale of 15 guntas of land to first defendant's predecessor in title rakhavant kaur gurudayalsingh. the western portion of sy.no. 731/ 3 numbered as 731/3/1 admittedly belongs to the defendants. the eastern portion of sy.no. 731/3 numbered as 731/3/2 come to the share of the plaintiffs. the grievance of the plaintiffs is that the defendants has encroached upon 6 guntas of land on the western side of their land and has built a construction thereon, for the removal and recovery of vacant possession of which the suit was instituted. before this suit came to be instituted, it is admitted that the plaintiffs had instituted a suit os 47/50 and had secured a decree regarding plaintiff possession of the 15 guntas of land. during trial a commissioner was appointed and the commissioner found as per ex.p.77 that the sub-division of sy.no. 731 was not found in the survey records but the land in sy.no. 731/2/1+5 which was in possession of one omanna, hiramani, parushram, gundu sons of mutakekar, ii basawa w/o. balappa mutakekar measured 161/2 guntas and 61/2 guntas namely 20 guntas and the same was in excess to an extent of 5 guntas. all these lands were found to be situated to the west of the land of defendants. the land of the plaintiffs is admittedly to the east of the defendants land. the trial court found in para-19 of the judgment that on account of 5 guntas of excess land in sy.no. 731/2/1+5, there has been a reduction of 5 guntas of land in the defendants area and the defendants in turn has encroached upon an area of 6 guntas in 731/3/2 belonging to the plaintiffs. the learned munsiff thereafter went on to hold that the plaintiffs were in possession of 9 guntas of land only by reason of they having suffered on encroachment of 6 guntas of land as aforesaid. the finding recorded by the learned munsiff was not accepted by the first appellate court on two grounds namely that in os 47/1959 plaintiffs title to 15 guntas of land was admitted and that the plaintiffs title to the property to an extent of 15 guntas was not lost by adverse possession of the defendants, even if such a claim was tenable, by reason of the suit having been instituted 12 years from the date of decree in os 47/50. the first appellate court took note of the fact that the commissioner observed that 5 guntas of land had been encroached upon by the immediate neighbours of the defendant and after the partition and a further affirmation in os 47/50 as to the extent of the land owned by the plaintiffs and defendants was each 15 guntas, it was for the defendants to have secured the possession of their 15 guntas in accordance with law. it was not open to the defendant to just measure out 15 guntas from the place of encroachment by the other neighbours and claim that the 15 guntas belongs to them without infringing plaintiffs admitted right to 15 guntas of land. the partition under which 15 guntas of land came to their respective predecessors in title of the plaintiffs and defendants took long long before the first defendant came to purchase the property. as already observed if some other persons were found to have encroached upon 5 guntas of land adjoining the defendants land, it was for the defendants to have secured their right and it is not open for the defendants to contend that they are entitled to 15 guntas of land irrespective of the claim of the plaintiffs to a similar 15 guntas of land especially in the circumstances of the case.11. admittedly the lands of the plaintiffs and the defendants were vacant lands and there was no material to show that the defendants had exclusive possession of 15 guntas of land being enclosed. where land is vacant, possession admittedly follows title. the first appellate court rightly concluded that if the defendants had lost 5 guntas of land by encroachment by others, then they have got to thank themselves and cannot assert title over any part of the land belonging to the plaintiffs, especially when they have not tendered any evidence to show that they had exclusive possession of 15 guntas of land. the defendants never raised a claim that they had perfected their title to the property by adverse possession and indeed such a plead cannot also be asserted by reason of the fact that this suit was rightly held to be filed within 12 years from the date of the compromise decree in os 47/50. what is significant to note is that the defendants have not sought to plead that in os 47/50 itself, the benami nature of the sale in favour of the first defendant had been pleaded by the first defendant herein and that despite such a plea, the decree has come and therefore it is not binding on the second defendant. if at all the second defendant's claim of benami nature of the transaction were to be true and if the second defendant suffered the first defendant compromising os 47/50, then it equally binds the second defendant as the first defendant's claim was merely a mask of the second defendant. the first appellate court rightly rejected the observation of the trial court that the second defendant had perfected his title to the encroached portion of the land as baseless. adverse possession has to be specifically pleaded and proved. merely because the plaintiffs suit is for possession of 6 guntas of land, an inference that the plaintiffs had no possession of the land 12 years prior to the institution of the suit could not be raised. admittedly the land was a vacant land and on the day the construction was noticed in december 1991, the construction work was still in progress. the situation is still worse for the defendants, in as much as, the defendants had not even obtained a licence for construction. in these circumstances the finding recorded by the first appellate court that plaintiffs are the owners of the plaint schedule 6 guntas of land is not open to challenge by the defendants.12. the question is whether the first appellate court exercised its discretion properly in rejecting the prayer for possession and for mandatory injunction requires examination. an identical situation like the one on hand came upon for consideration in bodi reddy v. appu goundan, 1970(2) madras lj 577 his lordship mr. justice m.m, ismoil (as he then was) examined the entire legal position and reiterated the position of law thus:'whenever the plaintiff comes to the court and prays for possession of his property in the occupation of a trespasser, with the incidental relief of mandatory injunction directing the trespasser to demolish the construction put up by him, there is no question of the court exercising any discretion as to whether the mandatory injunction should be granted or award of damages alone would be sufficient and once the plaintiff has established his right to a decree for possession, that decree must follow irrespective of any consideration of laches, acquiescence, want ot hardship or inconvenience to the plaintiff and any question of hardship to the defendant. the discretion is available only in suits where the plaintiff asks for an injunction against the defendant, not in respect of any trespasser for encroachment committed by the defendant on the plaintiff's property itself, but in respect of any action done by the defendant on his own land or on a common property or on a public property interferring with the enjoyment of the plaintiff of his own property. in a suit in which the plaintiff asks for relief on the basis of his title to the property, the only circumstance in which the plaintiff asks for relief on the basis of his title to the property, the only circumstances in which the plaintiff may be denied the relief is when the principle of equitable estoppel will apply and even then it is not as if the court declares the title of the plaintiff and denies the relief of possession to him in the exercise of the discretion, but prevents the plaintiff from asserting his title to the property itself on the basis that by his own conduct he has estopped himself from asserting any such right.in a suit for recovery of possession, the prayer for mandatory injunction is only for the benefit of the defendant and if the defendant has any objection to the same, a mandatory injunction should not be granted, but the plaintiff is entitled to a decree for possession, liberty being given to the defendant to remove the construction within a specified period and in the event of his failure to do so, the plaintiff being authorised to remove the same at the expense of the defendant.'in the instant case the first appellate court, having found that the plaintiffs were entitled to a declaration of title to the property, thought that as on the day it was making the order, the building constructed by the defendants was in existence for nearly 30 years and that therefore it is inequitable to grant a decree for possession and mandatory injunction for removal of the construction and that the plaintiff should work out his remedy to secure the value of the encroached 6 guntas of land. it is elementary that the right claimed by a party is to be adjudicated on the day the plaint was presented unless subsequent events have rendered the relief claimed inappropriate. in a case like this, equities as affecting the relief claimed in the plaint should have arisen prior to the institution of the suit and should have been pleaded and proved by the defendants. all that the defendants sought to urge in support of their claim was that the plaintiffs were aware of the construction being put up by them since 1960-61 and that having stood by and allowed the construction being put up, the plaintiffs are not entitled to any relief of mandatory injunction or possession. the first appellate court held that the plaintiffs were not guilty of any laches in bringing the suit and were not thus disabled from securing the relief of possession, but, nevertheless went on to deny the relief claimed by them for possession and mandatory injunction. even the trial court has found that the plaintiffs were not guilty of any deliberate inaction in pursuing their remedy when once they came to know of the infraction. in bodi reddy's case referred to above, the only circumstance when the relief can be denied is stated and that is that the plaintiff's should be guilty of acquiscence amounting to equitable estoppel. at page 595 and 596 of the report in bodi reddy's case referred to above, acquiescence as affecting a claim, has been elaborately stated, it is clear that in order to constitute acquiscence amounting to equitable estoppel, the plaintiffs must be shown to have conducted themselves in such a manner as to abandon a equitable right. in the instant case the courts below have rightly concluded that the plaintiffs were unaware of the encroachment on the land till december 1961 and immediately instituted the suit. in the circumstances, there is no way by which the plaintiffs right to secure the possession of encroached extent of 6 guntas of land could be denied, the mandatory injunction being only incidental to the main relief of possession. lapse of time between the date of presentation of the plaint and the date of decision of the trial court or the appellate court, as the case may be cannot certainly be regarded as creating an equitable situation in favour of the defendants as to deny the relief otherwise entitled. the order of the civil judge refusing possessions and mandatory injunction on the ground mentioned by him cannot be sustained. the appeal, therefore deserves to be allowed with costs while the cross-objections deserves to be dismissed. the appeal is allowed. the plaintiffs shall be entitled to a decree for possession of the 6 guntas of land encroached upon by the defendants and the defendants are allowed 90 days time from this day to remove the building on the plaint schedule property, failing which the plaintiff shall have it removed at the cost of the defendants and take possession of the land in accordance with law. cross-objections of the defendants are dismissed. the plaintiffs are entitled to costs from the defendants.