-Report by Karan Gautam
The defendant Nos. 1 and 2 in O.S. No.6456 of 1993 filed an appeal under Article 136 of the Constitution of India, calling in question the judgment and decree dated 09.09.2010 passed by the Hon’ble High Court of Karnataka at Bengaluru in RFA No.1966 of 2007. During the pendency of the captioned appeal, the second appellant died and his legal heirs were impleaded as additional appellants 2.1 to 2.4. The original first appellant and the impleaded legal heirs of the deceased second appellant are collectively described as ‘appellants’. The plaintiff prayed for a judgment for decree of permanent injunction restraining the first and second defendants from interfering in the plaintiffs right, title and interest over and in the suit schedule property.
The appellants filed a written statement contending that the suit is not maintainable, that there is no prayer for possession, that the suit was not valued correctly, and that the real owners of the suit property were not arraigned as parties. Subsequently, they amended the plaint by adding schedules A, B and ‘C’ and prayers qua them. The prayers in the amended plaint read as under: a judgment and decree of perpetual injunction directing the defendants to restore the possession of the schedule premises to the plaintiff and not to interfere in the plaintiffs’ lawful possession and enjoyment of the schedule property.
The plaintiff/respondent adduced oral and documentary evidence in support of his claims, but the defendant did not lead any evidence. The Trial Court partially decreed the suit as per judgment dated 04.07.2007, holding that the plaintiff was entitled to recover possession of suit ‘B’ schedule property from the defendants and directed the defendants
to vacate and deliver it to the plaintiff within two months. The surviving defendants challenged the judgment and decree before the High Court in RFA No.1966 of 2007. They did not adduce any evidence before the trial court. The plaintiff objected to the maintainability of the appeal as the original suit was filed under Section 6 of the Specific Relief Act, 1963. The High Court dispelled the objection and remanded the matter to the Trial Court for fresh disposal. Leave was granted and the Civil Appeal was disposed of as per judgment dated 03.09.2009. The trial Court was directed to record the evidence and submit a report to the High Court to dispose of the appeal within the time stipulated. The
Court to which the case is remanded has to comply with the order of remand and acting contrary to it is contrary to law. In this case, the High Court remanded the matter to the trial Court for fresh disposal and directed the trial Court to record the evidence as directed by the High Court and forward it along with report to enable the High Court to dispose of the appeal taking into account the additionally recorded evidence of the defendants.
The High Court dismissed the appeal of the appellants and confirmed the judgement and decree of the Trial Court. The appellants had raised multiple grounds to assail the judgment, including that the plaintiff/the respondent had failed to establish his possession over plaint ‘B’ schedule property. The High Court failed to consider the contention that the subject suit was abated due to the failure of the respondent to bring on record the legal representatives of Sri Hanumaiah, the third respondent, and Sri Rama @ Ramamurthy, the deceased second defendant, who had purchased the suit property from Sriman Madhwa Sangha and Sri Vittal Rao as per sale deed executed on 05.10.2000.
The High Court held that the defendants did not disclose their defence in their written statement and did not even contend that they are in possession of the suit property, which is based on the maxim ‘Possessio contra omnes valet praeter eur cui ius sit possessionis‘. The High Court is also correct in holding the question of maintainability of the suit in the affirmative and in favour of the respondent. The appellants argued that the suit ought to have been held as abated against all the defendants due to non-substitution of the legal representatives of the deceased defendant No. 3 upon his death, but the courts below have held that the original defendants failed to raise sufficient and appropriate pleadings in the written statement that they have better right for possession. The appeal is dismissed and there will be no order as to costs.
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