Second appeal against concurrent decrees for possession of suit property based on title. Dismissed. Court held that prior litigation did not bar this suit; suit was based on title, not Section 6 Specific Relief Act, and defendants' plea of adverse possession failed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF MARCH, 2023 BEFORE
THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.S.A NO. 180 OF 2015 (POS)
BETWEEN
VALERIAN FERNANDES, S/O LATE INTRU MANUEL FERNANDES, AGED ABOUT 49 YEARS, R/O DOOR.NO.2-2 15, SUNKADAKATTE, KOLAMBE VILLAGE & POST, MANGALORE TALUK, D.K.DISTRICT-575 001.
...APPELLANT
(By SRI.D.R.RAVISHANKAR SR.COUNSEL FOR CHETHAN B.ANGADI & SOMASHEKAR KASHIMATH, ADVOCATE )
AND
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R/O C/O GOPALA AMIN, ANUGRAHA, SWAYAM BHULINGESHWARA TEMPLE ROAD, DODDIKATTA, KATEEL ROAD, VIA: BAJE, MANGALORE, D.K-575 001.
…RESPONDENTS.
(BY SRI.SRINIVASA RAGHAVAN, SENIOR COUNSEL FOR SRI. CYRIL PRASAD PAIS, ADVOCATE FOR C/R-1; MS. SOWMYA LAKSHMI BHAT, ADVOCATE FOR R-2, 3 & 6; SRI KUMAR K.G., ADVOCATE FOR R-10; R4 SD UNREPRESENTED V/O DTD:01-03-2016 NOTICE TO R8 & R9 H/S; V/O D TD:24-01-2019 APPEAL AGAINST R5 & R7 DISMISSED)
THIS RSA IS FILED U/SEC.100, OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 03.12.2014 PASSED IN R.A.NO.88/2014 ON THE FILE OF THE PRL.SENIOR CIVIL JUDGE & CJM, MANGALORE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DTD 1.9.2014 PASSED IN OS.NO.117/2013 ON THE FILE OF THE IV ADDL. CIVIL JUDGE & JMFC., MANGALORE.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 28.09.2022, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
The captioned second appeal is filed by unsuccessful defendant No.1 who has questioned concurrent findings of the Courts below wherein plaintiff's suit seeking delivery of possession of suit schedule property is decreed by both the Courts.
per their rank before the trial Court.
Plaintiff claims that he is the owner of the suit schedule property. He is asserting title based on registered sale deed dated 25.01.1962. Plaintiff claims that this property was purchased by his father while he was a minor and therefore, plaintiff asserts that he has acquired absolute title over suit schedule property and therefore, defendants who are his brothers and sisters have no semblance of right and title over suit schedule property.
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purchased the property on behalf of family. Defendant No.1 claimed that plaintiff was never in possession of suit schedule property and it was his father who was managing the suit schedule property till his death. Referring to the recitals in the sale deed, defendant No.1 contended that the entire sale consideration was paid by his father and therefore, plaintiff did not acquire any title over the suit schedule property. The defendant No.1 further contended that he is in lawful possession over the suit schedule property as a co-owner along with defendant No.10 and that his father has bequeathed plaint suit schedule property to defendant Nos.1 and 10 under Will dated 07.10.1994. In the alternate, defendant No.1 also asserted title by way of adverse possession. The defendant No.1 also raised plea of limitation and contended that suit is barred by limitation.
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documents has succeeded in establishing his title over the suit schedule property. While answering issue Nos.3 to 6 in the negative, trial Court held that defendant No.1 cannot assert title based on Will dated 07.10.1994. The plea of adverse possession was also negatived by the trial Court. Consequently, suit was decreed and defendants were directed to handover vacant possession.
entire material on record. The Appellate Court while concurring with the findings of the trial Court, held that plaintiff's suit is well within time and that plaintiff has succeeded in establishing his title over the suit schedule property. While examining plea of adverse possession, Appellate Court was also of the view that defendant No.1 has failed to prove that he has perfected his title by way of adverse possession. Consequently, appeal is dismissed.
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“1) Whether the earlier suit O.S.No.320/1996 filed by the respondent in this case and the plaintiff in the said case is an impediment for disposing of the present suit?
2) Whether the ingredients of Section 6 of the Specific Relief Act are present in the suit?”
1 (2020) 17 SCC 496
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six circumstances formulated by the Hon’ble Apex Court in the case of Mangathai (supra) , he would contend that all the above mentioned ingredients in the judgment cited are found in this case and clearly establishes that plaintiff is a benamidar and defendants father was the owner of the suit schedule property. Placing reliance on the above said judgment, he would contend that sale consideration was paid by plaintiff and it is the plaintiff and defendants father who was in control and found to be in exclusive possession over the suit schedule property. Learned Senior Counsel would further contend that having regard to the relationship between the parties as they are found to be son and father, both the Courts erred in not examining the conduct of parties dealing with the properties.
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is not in dispute. Therefore, he would point out that if plaintiff and defendants father was in possession and after his death, defendant No.1 is in possession, though the title document is in the name of plaintiff, the same would not convey any title over the suit schedule property in the light of six circumstances laid down by the Hon’ble Apex Court in the case of Mangathai (supra) .
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title in which there is no allegation of prior possession and subsequent dispossession and therefore, he would contend that in the light of the findings recorded in earlier round of litigation, the present suit filed by plaintiff would squarely fall under Article 64 and not under Article 65. To buttress his arguments, he has placed reliance on judgment rendered in the case of Ramaiah vs. N.Narayana Reddy (Dead) By Lrs.2 .
2 (2004) 7 SCC 541
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not under Article 65. He would further vehemently argue and contend that both the Courts have virtually misread the plaintiff's case and defence set up by the defendants. Referring to the material on record, he would contend that no courts have upheld plaintiff's title. Therefore, without seeking relief of declaration, the plaintiff could not have maintained the present suit as there is a cloud over his rights on the plaint schedule property. Therefore, he would contend that plaintiff ought to have sought relief of declaration also.
16. Referring to limitation, he would contend that the
property was purchased in 1962 when plaintiff was hardly 7 years old and while he attained majority in 1973, he has not taken any steps by filing a suit and therefore, the earlier suit filed in 1996 which is after 23 years of majority was hopelessly barred by limitation. Therefore, he would contend that under Section 27, plaintiff's right, if any, stands extinguished by law of limitation. He would also vehemently argue and contend that the time spent on earlier suit cannot be excluded under Section
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14 of Limitation Act. Therefore, both the Courts concurrently erred in not dismissing the suit as barred by limitation.
1) T.V.Ramakrishna Reddy vs. M.Mallappa and Another – 2021 SCC Online SC 674;
2) Vinod Kumar Dhall vs. Dharampal Dhall – (2018) 16 SCC 645;
3) Pushpalata vs. Vijaykumar (Dead) thr. LRs. – Civil Appeal No.4078 of 2022;
4) Anathula Sudhakar vs. P.Buchi Reddy (Dead) By Lrs and others – (2008) 4 SCC 594;
5) Marcel Martins vs. M.Printer and others – (2012) 5 SCC
342;
6) Binapani Paul vs. Pratima Ghosh and others – (2007) 6 SCC 100;
7) Valliammal (D) By Lrs. vs. Subramanian and others – (2004) 7 SCC 233;
8) Lawrence Joseph Fernandes vs. Sri Inthru Manual Fernandes – RSA No.247/2006 dtd: 14.10.2011.
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and contend that the claim of the defendant that plaintiff never acquired any right and title, as the property was purchased by father by investing his own funds is found to be misconceived. Referring to the written statement filed by father of plaintiff and defendants in earlier suit, he would contend that father has admitted in unequivocal terms that he purchased the suit property in plaintiff's name out of love for plaintiff. The father never claimed that sale deed was nominal. He would further bring to the notice of this Court that the father in earlier round of litigation never mounted the witness box. On the contrary, the defendant No.1 was examined as his witness.
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possession from the defendants. Learned Senior Counsel referring to the written statement filed by defendant No.1 would vehemently argue and bring to the notice of this Court that defendant No.1 for the first time has taken a plea that sale deed was nominal. If defendant No.1 has set up a plea of adverse possession, then the suit would squarely fall under Article 65 of Limitation Act and not under Article 64 as claimed by the learned Senior Counsel appearing for defendant No.1.
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taking cognizance of all these significant details have rightly come to conclusion that plaintiff is entitled to seek possession.
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written statement, wherein defendants have contended that the plaint nowhere says about dispossession. The plea in regard to applicability of Article 64 is not reflected in the pleadings before the Courts below. It was not even urged in the present second appeal. Therefore, he would contend that the new contention cannot be permitted to be raised for the first time while arguing the matter during final hearing.
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involving claim of title and issue No.1 was also framed on title and both the Courts referring to title documents have come to conclusion that plaintiff has proved his title and therefore, he would contend that both the parties have consciously gone for trial and led evidence knowing the claim of title is involved in the case. Mere absence of prayer for declaration in the prayer column would not be fatal to the plaintiff's case. Referring to Corporation of the City of Bangalore vs. M.Papaiah and Another3 , he would contend that even if claim of title is missing in the prayer column, the entire pleadings have to be read as a whole to gather as to whether claim of title is involved or not.
3 (1989) 3 SCC 612
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the Courts on Will vide Ex.D-9, he would point out that these questions would not arise for consideration for want of pleadings and issues before the Courts below. Therefore, the proposed draft substantial questions of law formulated by the defendants for the first time when the matter is listed for hearing cannot be entertained. On these set of defence, he would request this Court to dismiss the second appeal by answering substantial question of law against the defendants.
Regarding first substantial question of law:
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findings recorded in earlier round of litigation, more particularly R.A.No.106/2000. This Court would deem it fit to cull out para 38 and 39 of the said judgment which reads as under:
“38. From the above discussion it will be very clear that the plaintiff has utterly failed to establish the existence of any relationship of a licensor and licensee between himself and the defendant. It is also established that the remedy available for the plaintiff is only to file a suit for recovery of possession and the defendant cannot be directed to deliver possession of the suit property in the present suit itself. Under these circumstances, the findings recorded by the trial judge on issue No.2 to issue No.6 will be erroneous, capricious and arbitrary. It is true that the plaintiff has established his title to the suit property. But it does not mean that he is entitled for a mandatory injunction to direct the defendant to deliver vacant possession of the suit property when admittedly he has not retained the control and possession of the property.
39. For all the above said reasons I hereby come to the conclusion that the trial Court has not properly appreciated the evidence and materials on
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record and also failed to come to the correct conclusion regarding the existence of licensor and licensee relationship between the parties and to record proper findings. Accordingly I am also of the considered view that the trial court ought to have dismissed the plaintiff’s suit and refused to grant the relief as prayed for. Hence it is very much essential in the interest of justice to interfere with the judgment of the trial Court and to set aside its judgment and decree. Under the above circumstances, I answer these points affirmatively to the appellant as stated above.”
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maintained the relief of mandatory injunction against his father. Appellate Court held that there are absolutely no materials indicating that plaintiff’s father was in possession as a licensee. Therefore, relegating the plaintiff to seek recovery of possession, the appeal was allowed and suit was dismissed.
4 AIR 1999 SC 1549
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was dismissed, will not create a cloud over plaintiff’s title. It was the specific case of the plaintiff’s father who was arrayed as a defendant that plaintiff has to seek possession and cannot maintain a suit for mandatory injunction. The plaintiff and defendant No.1’s father has never asserted that the plaintiff is a benamidar and he is the true owner of the suit property. The plea of benami was never set up as a defence by the father of plaintiff and defendant No.1. In that view of the matter, the first substantial question of law is answered in the negative and against the defendants.
Regarding second substantial question of law:
“4) Plaintiff submits that though Intru Manuel Fernandes was a licenses still both the first and the second Appellate Court have held that there did not exist the relationship of licensor and the licensee between the plaintiff and Intru Manuel Fernandes. However all the 3 Courts have held that the suit property absolutely belong to the plaintiff. Plaintiff
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is also the title holder of the suit property. However, taking into consideration the nature of the suit filed and the admissions brought on record to the effect that the plaintiff was dispossessed from the suit house prior to the filing of the suit, courts were of the view that a suit for mandatory injunction is not maintainable and that the plaintiff ought to have filed a suit under Section 6 of the Specific Relief Act. Therefore, plaintiff was nonsuited for the reliefs claimed by him in the suit.
7. Plaintiff submits that he does not wish neither the first defendant nor the remaining defendants to continue to occupy the plaint schedule property any more. He wants the possession of the plaint schedule property for his own purposes. He does not wish to keep any cloud over his rights in the plaint schedule property any more. Therefore, ultimately, plaintiff has not decided to file the present suit for possession of the plaint schedule property basing his claim for possession on title. Hence, this suit.
IV. That the cause of action for the suit arose on 14/10/2011, the date on which the Hon’ble High Court of Karnataka dismissed the second appeal filed by the plaintiff in RSA.No.247/2006 holding
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that suit filed by the plaintiff in O.S.No.320/1996 is not maintainable and that there does not exist the licensor and licensee relationship between the plaintiff and the defendant and subsequently at Kolambe Village of Mangalore Taluk wherein the plaint schedule property is situated which is within the jurisdiction of this Court.”
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juncture. Accordingly, the second substantial question of law is answered in the negative and against the defendants.
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supported by pleadings in the written statement. There is no issue in regard to the maintainability of suit for having not prayed for relief of declaration of title. Issue No.5 which relates to plea of adverse possession where burden is cast on the defendant No.1 would automatically nullify the stand taken for the first time before this Court. If defendant Nos.1 and 10 have set up a plea of adverse possession, then this Court is of the view that plaintiff can maintain a suit for possession based on title. In earlier proceedings, plaintiff was held to be the owner of the property based on registered sale deed dated 25.01.1962 as per Ex-D-10. The defence in the earlier round of litigation by defendant was that though plaintiff is the owner of the property in question, he cannot maintain a suit seeking relief of mandatory injunction. Coupled with these findings recorded in the earlier round of litigation, even in the present case, defendant No.1 has set up a plea of adverse possession which necessarily presupposes that defendant No.1 has admitted plaintiff’s title. If defendant No.1 has admitted plaintiff’s title, then it goes without saying that both the Courts were justified in recording a finding that present suit for possession is based on
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title and there is no dispute insofar as plaintiff’s title is concerned.
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name of plaintiff out of love and affection. Therefore, the intention of father of plaintiff and defendant No.1 was quite clear. The intention was to see that plaintiff gets a property out of love and affection. The six tests indicated in the judgment cited by the Hon’ble Apex Court have no application to the present case on hand. The law relating to the claim that transaction was benami is always on the person claiming that it is a benami transaction. The Hon’ble Apex Court in the case of Muralidhar Deshpande alias Raja and another vs. Hanumantha Rao5 , referring to Section 4 of the Benami Transaction Act has held that any transaction entered into prior to the Act coming into force are saved and the real owner is estopped from setting up a defence after commencement of the Act. Section 4(2) does not discriminate between the real owners depending upon whether they stand in the position of plaintiff or defendants. Therefore, the father of plaintiff and defendant No.1 even otherwise could not have maintained a suit against plaintiff and he could not have even defended the suit asserting that he
5 2006 SCC Online Kar 562
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is a real owner and the sale deed in favour of his minor son is a benami transaction.
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Will set up by defendant No.1 contending that his father has bequeathed the suit schedule property under Ex.D-9 is of no consequence. If father of plaintiff and defendant No.1 was not the owner of the suit schedule property, he could not have bequeathed. Therefore, both the Courts were justified in answering issue No.3 in the negative.
ORDER
The second appeal is devoid of merits and accordingly, the same stands dismissed.
The pending interlocutory applications, if any, do not survive for consideration and stand disposed of.
Sd/JUDGE
CA
2 issues framed by the court
Whether the earlier suit O.S.No.320/1996 filed by the plaintiff is an impediment for disposing of the present suit?
Whether the ingredients of Section 6 of the Specific Relief Act are present in the suit?
Colour shows how this judgement treated each authority
Mangathai Ammal (Died) Through Legal Representatives and Others vs. Rajeswari and OthersReferred¶12
(2020) 17 SCC 496 · Who else cites this
Ramaiah vs. N.Narayana Reddy (Dead) By Lrs.Referred¶14
(2004) 7 SCC 541 · Who else cites this
T.V.Ramakrishna Reddy vs. M.Mallappa and AnotherReferred¶17
2021 SCC Online SC 674 · Who else cites this
Vinod Kumar Dhall vs. Dharampal DhallReferred¶17
(2018) 16 SCC 645 · Who else cites this
Pushpalata vs. Vijaykumar (Dead) thr. LRs.Referred¶17
Civil Appeal No.4078 of 2022
Anathula Sudhakar vs. P.Buchi Reddy (Dead) By Lrs and othersReferred¶17
(2008) 4 SCC 594 · Who else cites this
Marcel Martins vs. M.Printer and othersReferred¶17
(2012) 5 SCC 342 · Who else cites this
Binapani Paul vs. Pratima Ghosh and othersReferred¶17
(2007) 6 SCC 100 · Who else cites this
Valliammal (D) By Lrs. vs. Subramanian and othersReferred¶17
(2004) 7 SCC 233 · Who else cites this
Lawrence Joseph Fernandes vs. Sri Inthru Manual FernandesReferred¶17
RSA No.247/2006 dtd: 14.10.2011
Corporation of the City of Bangalore vs. M.Papaiah and AnotherReferred¶24
(1989) 3 SCC 612 · Who else cites this
Inidra vs. Arumugam & AnotherReferred¶29
AIR 1999 SC 1549 · Who else cites this
Muralidhar Deshpande alias Raja and another vs. Hanumantha RaoReferred¶37
2006 SCC Online Kar 562 · Who else cites this
7 provisions across 3 enactments
Valerian Fernandes
Lawrence Joseph Fernandes
Reeta D Souza
Philomina Pinto
Irine D Souza
Francis Fernandes
Sachin Shankar Magadum
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
