Mrs Letitia Sequiera Vs Mr Valerian Sequeira

ALL ARE R/AT SQUEIRA COMPOUND, MANNAGUDDA, MANGALORE-575 003. D.K. DISTRICT. APPELLANTS (3), (4), AND (6) ARE REP. BY THEIR G.P.A. HOLDER, APPELLANT NO.2

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…APPELLANTS

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(BY SRI. M SUDHAKAR PAI., ADVOCATE) AND:

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MR. VALERIAN SEQUEIRA S/O LATE ALBERT SEQUEIRA, AGED ABOUT 54 YEARS, R/AT GHATKOPAR, MUMBAI, REP. BY HIS G.P.A. HOLDER, SMT. NIRMALA SEQUEIRA, AGED ABOUT 47 YEARS, R/AT RED BUILDING LANE, KANKANADY, MANGALORE-575 002 (D.K).

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…RESPONDENT

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(BY SRI. SANATH KUMAR SHETTY K., ADVOCATE)

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THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT DECREE DTD 5.8.2013 PASSED IN R.A.NO.15/2008 ON THE FILE OF III ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, MANGALORE, D.K., DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 29.11.2007 PASSED IN OS.NO.695/2001 ON THE FILE OF II ADDITIONAL CIVIL JUDGE (JR.DN.), MANGALORE, D.K.

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IN RSA NO. 2020/2013

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BETWEEN:

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MRS LETITIA SEQUIERA W/O LATE JOHN SEQUEIRA AGED ABOUT 73 YEARS

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MR YVONNE SEQUEIRA AGED ABOUT 52 YEARS

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MRS BLANCHE SEQUEIRA AGED ABOUT 50 YEARS

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MR HAZEL SEQUEIRA AGED ABOUT 48 YEARS

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MR KEVIN SEQUEIRA AGED ABOUT 45 YEARS

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MR CANUTE SEQUEIRA AGED ABOUT 40 YEARS

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APPELLANTS 2 TO 6 ARE CHILDREN OF LATE JOHN B. SEQUEIRA

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ALL ARE R/AT SEQUEIRA COMPOUND MANNAGUDDA MANGALORE-575003

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APPELLANTS 3,4 AND 6 ARE REP. BY THEIR GPA HOLDER APPELLANT NO.2.

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...APPELLANTS

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(BY SRI. M SUDHAKAR PAI., ADVOCATE)

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AND:

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MR VALERIAN SEQUEIRA S/O LATE ALBERT SEQUEIRA AGED ABOUT 54 YEARS R/AT GHATKOPAR, MUMBAI REP. BY HIS GPA HOLDER SMT. NIRMALA SEQUEIRA W/O VALERIAN SEQUEIRA AGED ABOUT 47 YEARS R/AT RED BUILLDING LANE KANKANADY MANGALORE-575002(DK)

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...RESPONDENT

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(BY SRI. SANATH KUMAR SHETTY K., ADVOCATE)

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THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 5.8.2013 PASSED IN R.A.NO.16/2008 ON THE FILE OF III ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, MANGALORE,D.K., DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 29.11.2007 PASSED IN OS.NO.54/2002 ON THE FILE OF II ADDITIONAL CIVIL JUDGE (JR.DN.), MANGALORE, D.K.

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THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI

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ORAL JUDGMENT

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These two appeals arise out of a common judgment passed in the judgment and decree dated 05.08.2013 passed in R.A.Nos.15 of 2008 and 16 of 2008 by the learned III Additional Senior Civil Judge, Mangalore, D.K. ('the First Appellate Court' for short) and the common judgment and decree dated 29.11.2007 passed in O.S.Nos.695 of 2001 and 54 of 2002 on the file of the learned II Additional Civil Judge (Jr.Dn.), Mangalore, D.K. ('the trial Court' for short)

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In RSA No.2019 of 2013, for convenience, parties are referred to based on their ranking before the trial Court. In OS No.695 of 2001, the appellants were the legal representatives of defendants, and the respondent was the plaintiff. In RSA 2020/2013, the

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appellants were the plaintiffs, and the respondent was the defendant.

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Brief facts of the case in OS No. 695/2001:

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The suit schedule property belongs to the plaintiff as per the registered partition deed dated 29.04.1999 and the plaintiff is the owner in possession of the suit schedule property. The original extent of the property that belongs to Albert Sequeira is 40 cents, and he died leaving behind the Will dated 13.12.1982 duly probated in P&SC No.22 of 1994. Out of 40 cents, 10 cents of land along with the house bearing Door No. 16-642 was bequeathed to his wife Dulcine Sequeira. Further, remaining property was bequeathed in favour of his 3 brothers and the plaintiff. At the time of division, some portion of land has gone for the private road. The wife of Albert Sequeira died leaving behind a Will registered dated 07.07.1997 probated in P&SC No.4/1999 by the District Judge,

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Mangalore, bequeathing her 10 cents of land to her daughter Nirmala Sequeira.

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The said Nirmala Sequeira, out of 10 cents, sold 7 cents of land to one Sujatha Bhat, and remaining 3 cents sold jointly to Smt. Jayanthi Pai and Ramadas Pai under two perpetual lease deeds dated 19.05.1999. The defendant owns property to the north of plaint schedule property measuring about 23.75 cents which is adjoining and touching the plaint schedule property, which was separated only by a laterite stone compound wall. The plaintiff is residing at Mumbai, and his wife is residing away from the plaint schedule property. She is the General Power Attorney holder of the plaintiff and she used to visit the plaint schedule property to collect rents from the tenants. In the first week of November 2001, when she visited the suit property, she found that the dividing laterite stone compound wall situated to the north of the plaint schedule property was

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removed by the defendant, and that defendants illegally encroached on the same, and put up a new wall. The act of the defendant is illegal. Hence, a cause of action arose for the plaintiff to file an instant suit and accordingly, prays to decree the suit.

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The defendants filed a written statement denying the averments made in the plaint, and contended that the suit filed by the plaintiff is not maintainable. The suit is filed only to counter blast the suit filed by the defendant against one Jayanthi Pai. It is denied that the suit schedule property belongs to the plaintiff as per registered partition deed dated 29.04.1999. It is contended that the defendant is the absolute owner in possession and enjoyment of the same. It is contended that the plaintiff never come into the possession of the suit schedule property. The documents alleged to have been executed without notice to the defendant is neither binding on the defendant nor the same is legal. It is denied that

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Albert Sequeira possessed 40 cents of land and he left behind the Will dated 13.12.1982 probated in P&SC No.22/94. It is contended that the defendant was allotted, and he is in possession of 30 cents of land. He owns the property measuring 0.23.75 cents as contended by the plaintiff is far from truth, and accordingly prays to dismiss the suit.

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The defendants in O.S.No.695/2001, filed a suit in O.S.No.54/2002 for the relief of permanent injunction. The plaintiff in O.S.No.54/2002 is the owner of the suit schedule property and he derived the right in the same deed of settlement executed by his father Lawrence Sequeira on 13.03.1964. He is in khas and exclusive possession and enjoyment of the suit schedule property without any obstruction from anybody. Whereas Jayanthi Pai who is the Corporator of the locality through her husband Ramdas Pai, started to dig the property belonging to the defendants claiming that they had purchased the

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same in the month of October, 2001 and filed a suit for injunction in O.S.No.627/2001 as the defendants making attempt to put up a wall by encroaching into the suit schedule property. Hence, prays to decree the suit.

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The defendant in O.S.No.54/2002 filed a written statement reiterating the averments made in the plaint in O.S.No.695/2001. Accordingly, prays to dismiss the Suit in O.S.No.54/2002.

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The trial Court clubbed both the suits and framed the separate issues, which reads as follows:

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O.S.No.695/2001:

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i. Whether the plaintiff proves that he is the owner of plaint schedule property?

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ii. Whether the plaintiff proves that the defendant has removed a dividing laterite stone compound wall in between the property of plaintiff and defendant?

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iii. Whether the plaintiff proves that defendant had tried to put up a compound wall by encroaching the property of plaintiff?

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iv. Whether the defendant proves that he is the absolute owner of written statement schedule property?

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v. Whether the defendant proves that plaintiff had obstructed the defendant in putting up a compound wall?

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vi. What are the relief parties are entitled for?

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vii. What order or decree?

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Issues in O.S.No.54/2002:

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i. Whether the plaintiff proves his possession of the suit property?

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ii. Whether the plaintiff proves alleged interference?

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iii. Whether the plaintiff proves cause of action to the suit?

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iv. Whether the plaintiff is entitled for the relief prayed?

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v. What decree or order?

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The trial Court has recorded common evidence in both the cases. The plaintiff in O.S.No.695/2001 was examined as PW.1, examined one witness as PW.2 and marked 21 documents as Exs.P1 to P21. Conversely, the legal representative of the defendant in O.S.No.695/2001 was examined as DW.1 and the Court commissioner was examined as CW.1 and marked the documents Exs.D1 to D3 and through Court commissioner, one document was marked as Ex.C-1.

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The trial Court, after recording the evidence of the parties, hearing both sides and after assessing the verbal and documentary evidence, answered issues in O.S.No.695/2001 i.e., issues Nos.1 and 3 in the affirmative, issue Nos.2 and 5 in the negative, issue No.4 partly in the affirmative, and issue No.6 and 7 as per the final order. In O.S.No.54/2002, answered issue No.1 partly in the affirmative, issue Nos.2 to 4 in the negative, and issue No.5 as per the final order.

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The suit in O.S.No.695/2001 was partly decreed, and

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the counter claim of the defendant in O.S.No.695/2001, against the plaintiff was dismissed and the suit of the plaintiff in O.S.No.54/2002 was dismissed vide common judgment dated 29.11.2007.

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The plaintiffs in O.S.No.54/2002, legal representatives of the deceased defendant in O.S.No.695/2001, aggrieved by the common judgment passed in O.S.Nos.695/2001 and 54/2002, preferred the appeals in R.A.Nos.15/2008 and 16/2008 on the file of III Additional Senior Civil Judge, Mangalore, D.K.

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The first Appellate Court, clubbed both the appeals and after hearing the learned counsel for the parties, framed the following points for consideration:

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i. Whether the plaintiff in O.S.No.695/2001 proves that he is owner in possession and enjoyment of suit schedule property as on the date of suit? If so, whether the plaintiff

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proves the illegal interference caused by the defendant?

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ii. Whether the defendant proves that he is the absolute owner of written statement schedule property so also proves illegal interference caused by plaintiff over the said properties?

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iii. Whether the plaintiff in O.S.No.54/2002 proves that he is in possession and enjoyment of suit schedule property as on the date of suit and further proves the illegal interference caused by the defendant?

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iv. Whether the findings given by trial Court passed in common judgment and decree in O.S.No.695/2001 and 54/2002 is illegal, bias, capricious and contrary to the provisions as well as evidence placed by both the parties. Therefore, interference of this Court is requires?

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v. What order?

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The first appellate Court, after re-appreciating the entire evidence on record, answered point No.1 in the affirmative, point Nos.2 to 4 in the negative, and

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point No.3 as per the final order. The appeals were dismissed vide common judgment dated 05.08.2013 The impugned common judgment and decree passed by the trial Court in O.S.No.695/2001 and O.S.No.54/2002 was confirmed.

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The defendants in O.S.No.695/2001 and plaintiffs in O.S.No.54/2002 aggrieved by the impugned judgments, filed this Regular Second Appeals.

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Heard the learned counsel for the appellants herein, and learned counsel for the respondents.

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Learned counsel for the appellants submits that both the courts below have failed to appreciate the entire evidence on record, and submits that during the pendency of the suit in O.S.No.695/2001 and 54/2002, the defendant died, and the relief of injunction became infructuous on the death of the sole defendant. The said aspect was ignored by the courts below. The impugned judgment, passed by

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the courts below are arbitrary and erroneous.

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Hence, prays to allow the appeals.

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Per contra , learned counsel for the respondents supports the impugned judgments, and accordingly prays to dismiss the appeals.

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This Court vide order dated 07.06.2016, admitted RSA No.2019/2013 and RSA No.2020/2013 to consider the following substantial questions of law:

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In RSA No.2019/2013:

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i. Whether the courts below were justified in decreeing the suit of the plaintiff granting injunction even after the death of the original defendant, when the suit is based on tortuous act of the defendant?

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ii. Whether the courts below were justified in decreeing the suit of the plaintiff when the identity of the property is in dispute?

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iii. Whether the courts below were justified in granting injunction in the facts and circumstances of the present case?

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In RSA No.2020/2013:

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i. Whether the courts below were justified in dismissing the suit of the plaintiffs when both the courts have concurrently recorded a finding that the plaintiffs' possession is proved and they are in possession of the suit schedule premises?

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ii. Whether the courts below were justified in dismissing the suit without considering the oral evidence of PW.1 and material documents Exs.P1 to 20?

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iii. Whether the courts below were justified in dismissing the suit of the plaintiffs in the facts and circumstances of the present case?

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Reg. Substantial questions of Laws 1 to 3 in

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RSA No.2019/2013:

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The substantial questions of law 1 to 3 are interlinked with each other and hence, they are taken together for a common discussion to avoid the repetition of facts.

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The plaintiff in O.S.No.695/2001, and defendant in O.S.No.54/2002, to substantiate his case examined himself as PW.1, and he reiterated the plaint averments in O.S.No.695/2001 in the examinationin-chief, and to prove his case he has produced the documents. Ex.P1 is the registered partition deed dated 29.04.1999 with sketch, Ex.P2 is the RTC, ExP3 is the copy of the Will, Ex.P4 is a certified copy of probate order, Ex.P5 is the GPA dated 15.11.2000, Ex.P6 is a certified copy of plaint with sketch in O.S.No.34/94, Ex.P7 is a certified copy of written statement in O.S.No.34/94, Ex.P8 is the copy of will, Ex.P9 is a certified copy of order in P&SC 4/98, Ex.P10 is the extract of assessment register for 1977-78, Ex.P11 is the extract of assessment register for 2001-02, Ex.P12 is the ADLR sketch before partition, Ex.P13 is a certified copy of deposition in O.S.No.627/01, Ex.P14 is a certified copy of judgment in O.S.No.627/01, ExP15 is a

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certified copy of plaint in O.S.No.404/95, ExP16 is a certified copy of written statement in O.S.No.404/95, Ex.P17 is a certified copy of decree in O.S.No.404/95, ExP18 is a certified copy of joint memo in O.S.No.4040/95, Ex.P19 is a certified copy of petition in HRC No.166/98, Ex.P20 is a certified copy of commissioner report in HRC No.166/98, Ex.P21 is a certified copy of memo in HRC No.166/98.

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During the cross examination of PW.1, an attempt was made to deny the title and possession of the plaintiff over the suit schedule property. However, said suggestion was denied by PW.1.

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The plaintiff also examined one witness as PW2. He deposed in the same lines of PW1. The commissioner was examined as CW.1. Defendant No.1(b) in O.S.No.695/2001, was examined as DW1. He reiterated the written statement averments in the examination-in-chief. The first Appellate Court, after

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considering the entire evidence on record, has recorded its findings in para No.23, which reads as follows:

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"23. ….According to the plaintiff, there are so many litigations held between the defendant and the plaintiff’s family in respect of the suit schedule property. Much earlier to filing of the instant suit in which the present defendant has categorically admitted his written statement in respect of 40 cents of land belongs to the plaintiff’s family. So, the said admissions are binding on the defendant and he cannot set up a new plea contrary to the earlier admissions. In this regard, the plaintiff has relied on Exs.P6 and Ex.P7 which are the certified copies of the plaint with sketch and written statement filed by the present defendant in OS No.34 of 1994. On perusal of the contents of said document, it is quite clear that the defendant herein has categorically admitted the ownership and possession of the plaintiff's family to the extent of 40 cents in TS No.691 and OS No.117. Further, Ex.P14 is the certified copy of the judgment passed in OS No.627/2001, which is filed by the defendant herein against his neighbourers one Jayanthi Pai and Ramdas Pai

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and also, Mrs.Sujatha Bhat, who are the purchasers of the property from the sister of the plaintiff. In the said judgment, the court has observed that there is a property of one Velerian Sequiera in between the property of John B. Sequiera, the deceased defendant. Such being the case, the contention of the defendant that the plaintiff's family does not owned 40 cents of land, argument not sustainable.

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Further in para No.25, it has recorded that the defendant has categorically contended that he is owning about 35 cents in TS No. 619/A and R.S.No.117/A of Bolur Village. In this regard, he has relied on Ex.D1 certified copy of settlement deed, which said to have been executed by his father. Ex.D2 is the copy of the deed of sale of mulgars right which was executed on 04.03.2005 in favour of deceased defendant.

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John Baptist Sequiera and Ex.D3 is the khata register pertaining to the defendant's family stands in the name of B. Sequiera. Exs.D2 and D3 are the documents arising during the pendency of the present suit. So also those documents are come in existence after various disputes arising between the

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parties to the suit. Admittedly, the plaintiffs are not a party to the said documents nor it is established that they are having a knowledge of its contents much prior to filing of the instant suit. Such being the case, they are not binding on the plaintiff, arguments seems to be reasonable. The Court commissioner also visited the spot and conducted the measurement before the parties and submitted a report which has been seriously objected by the defendant and called the commissioner for cross-examination, who has categorically stated that though the defendant was claiming 30 cents of land which was not found on the spot, measures only 22.50 cents. Under such circumstances, it is for the defendant to establish specific measurement of his property with cogent and convincing evidence, in view of his clear cut admission in the previous pleadings which has not been done by him. The evidence of PW1 and PW2 remained unshaken. In spite of lengthy cross-examination, nothing is elicited contrary to the contentions set up by the plaintiff."

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(emphasis supplied)

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From the perusal of the evidence, it is clear that neither the defendant nor DW1 are having exact knowledge about the measurement of their property or the document in support of their claim. During the pendency of the suit, the Court commissioner was appointed to inspect the spot. Pursuant to the order passed by the trial Court, the Court commissioner was appointed, and he submitted a report. The court commissioner was examined as CW.1. From the perusal of the evidence of CW.1, nothing has been elicited in the course of cross-examination to disbelieve the contents of report submitted by the court commissioner. Both the courts below have concurrently recorded the finding of facts against the appellants herein and have passed the impugned judgments.

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During the pendency of the suit, the original defendant died leaving behind the legal heirs. To consider the case on hand, it is necessary to examine

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the provisions of CPC i.e., Section 2(11) of the CPC

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which reads as under:

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"Section 2(11) of the Code of Civil Procedure (CPC) defines a " legal representative" means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued."

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As could be seen from the said definition, a person who intermeddles with the estate of the deceased is also considered as a legal representative. Thus, a person in whose favour the rights of property devolve by operation of law or by way of testament would be the legal representative.

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Admittedly in the instant case, the suit is one for injunction, wherein after the death of original defendant the property devolves upon his legal heirs.

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After the demise of the original defendant, the suit abates.

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The Co-ordinate Bench of this Court had an occasion to consider the said substantial question of law in Chennaiah @ Doddachennaiah, since deceased by his LRs. vs. Sri.Bylappa , since deceased by his LRs. and others in RSA No. 743 of 2011 disposed of on 11.04.2022. The Co-ordinate Bench of this Court framed the question, which reads as follows:

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"Whether the right to sue survives in a suit instituted for injunction simplicitor?"

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The Co-ordinate bench has recorded its findings, which reads as follows:

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“55. …..A decree of perpetual injunction perpetually enjoins a defendant from the assertion of his right or from the commission of an act which is contrary to the rights of the plaintiff. There is absolutely nothing indicated in the provisions of Part

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III or Part IV of the Specific Relief, which even remotely indicate that an Injunction is a right which is personal to the plaintiff.

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56. A personal right is a right that can be enjoyed only by an individual on his own and it is a right that cannot survive his life. Such kinds of personal rights are relatable only to the limited category of suits, such as a suit for deformation, suit for damages for the personal injuries suffered, a suit for bankruptcy, a suit for dissolution of marriage, etc.,

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The Co-ordinate Bench has placed a reliance on the judgment of the Hon'ble Apex Court in case of Puran Singh and others vs. State

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of Punjab and others reported in (1996) 2

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SCC 205 , wherein it is held as follows:

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"4. A personal action dies with the death of a person on the maxim "action personalis moritur cum persona". But this operates only in a limited class of actions, ex delicto, such as action for damages for defamation, assault or other personal injuries not causing the death of the party, and in other

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actions where after the death of the party the granting of relief would be negative (Girja Nandini versus Bijendra Narain , reported in (1967) 1 SCR 93). But there are other cases, where the right to sue survives in spite of the death of a person against whom the proceedings had been initiated and such right continues to exist against the legal representative of the deceased which was a party to the proceeding. Order XXII of the Code deals with this aspect of the matter. Rule 1 of Order XXII says that the death of plaintiff or defendant shall not cause the suit to abate if the right to sue survives. That is why whenever a party to a suit dies, the first question which is to be decided is to as to whether the right to sue survives or not. If the right is held to be a personal right which is extinguished with the death of the person concerned and does not devolve on the legal representatives or successors, , then it is an end of the suit. Such suit, therefore, cannot be continued. But if the right to sue survives against the legal representative of the original defendant, then the procedures have been prescribed in Order XXII to bring the legal representative on record within the time

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prescribed. In view of Rule 4 of Order XXII, where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant dies and the right to sue survives, the court, on an application being made in that behalf, shall cause the legal representatives of the deceased defendant to be made a party and shall proceed with the suit. If within the time prescribed by Article 120 of the Limitation Act, 1963, no application is made under sub-rule (1) of Rule 4, the suit shall abate as against the deceased defendant. This rule is based not only on the sound principle that a suit cannot proceed against a dead person, but also on the principle of natural justice that if the original defendant is dead, then no decree can be passed against him so as to bind his legal representative without affording an opportunity to them to contest the claim of the plaintiff. Rule 9 of Order XXII of the Code prescribes the procedure for setting aside abatement.

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Further, the Co-ordinate Bench of this Court held in para No.58 as follows:

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“58. The right to enjoy the possession of immovable property is not a right that can be enjoyed only by one person and it is not a right that can survive beyond the life of that person. The right to enjoy property is a transferable right and thus it is not limited to any person. On the death of person, the right to enjoy the possession of that property can and does survive to his legal representative.”

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(emphasis supplied by the court)

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Thus, in view of the judgment rendered by the coordinate bench of this Court in the case of Chennaiah @ Doddachennaiah referred supra, I answer the substantial questions of law Nos.1 to 3 in the affirmative.

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Reg. Substantial questions of laws 1 to 3 in RSA

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No.2020/2013:

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Substantial questions of law are taken together for common discussion to avoid repetition of facts.

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As this Court has already recorded a finding in RSA

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No.2019/2013, that the appellants herein are not in possession of the suit schedule property, and the suit is one for bare injunction. In a suit for bare injunction, the Court is required to consider the possession, and interference as of the date of the suit. Both the courts below have concurrently recorded a finding of facts against the appellants herein.

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