MADINA EDUCATION TRUST, RAICHUR v. SHIVANANDJI S/O LATE K. AMBAJI RAO AND ANR

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AND:

1. SHIVANANDJI

S/O LATE K. AMBAJI RAO,

AGED ABOUT 35 YEARS,

OCC: AGRICULTURE AND BUSINESS,

R/O H.NO.12-12-512, SIYATALAB, RAICHUR-584 101.

2. MANAGEMENT STRUCTURE OF SEVA

ARAB MOHALLA, RAICHUR,

THROUGH ITS PRESIDENT,

P. BASAVARAJ S/O P. BASANNA,

AGED ABOUT 50 YEARS,

R/O H.NO.12-11-61, ARAB MOHALLA, RAICHUR-584 101.

…RESPONDENTS

(SRI. SREEVATSA, SENIOR COUNSEL FOR

SRI. V.K. NAYAK, ADVOCATE FOR R-1; R-2 - SERVED, BUT UN-REPRESENTED)

THIS RSA IS FIELD UNDER SECTION OF 100 OF CPC,

PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED

21.09.2012 PASSED IN R.A. NO.61/2010 BY THE ADDL.

DISTRICT JUDGE AT RAICHUR, CONFIRMING THE JUDGMENT

AND DECREE DATED 03.04.2009, PASSED IN OS NO.233/2005,

ON THE FILE OF THE PRL. CIVIL JUDGE (SR.DN.), RAICHUR.

THESE APPEALS COMING ON FOR FINAL HEARING, THIS

DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

These appeals are preferred by defendant No.1/appellant, challenging the judgment and decree dated 21.09.2012 in R.A. Nos.61/2010 and 80/2010 on the file of Additional District Judge at Raichur (for short 'First Appellate Court'), dismissing the appeal in R.A. No.61/2010 and allowing the appeal in R.A. No.80/2010 by confirming the judgment and decree dated 03.04.2009 in O.S. No.233/2005 on the file of Principal Civil Judge (Sr.Dn.), Raichur (for short 'Trial Court') with regard to granting relief of possession to the plaintiff.

2. For the sake of convenience, the parties in the appeal shall be referred to in terms of their status and ranking before the Trial Court.

3. The relevant facts for adjudication of these appeals are that, defendant No.1 is an Educational Trust and defendant No.2 is the President of said Educational Trust. It is averred by the plaintiff in the plaint that, the plaintiff has purchased the total extent of 39 acres 37

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guntas in Sy.No.46 of Raichur City under eight registered sale deeds during the years 1965 and 1967 and thereafter, the entire extent was divided into two bits. It is stated that, the suit portion is Sy.No.46/B measuring 35 guntas and the remaining area was numbered as Sy.No.46/A. It is the case of the plaintiff that, the plaintiff is in possession of both Sy.No.46/B and Sy.No.46/A. It is the contention of the plaintiff that, he has filed a suit in O.S. No.165/1975 before the Munsiff Court, Raichur against one Khaja Hussain and Secretary, Wakf Board, Bangalore, seeking relief of declaration with consequential relief of permanent injunction and the said suit came to be decreed on 07.02.1979 declaring that, the plaintiff is the owner of the suit property, however, the relief of granting decree of permanent injunction or alternative decree for possession was not considered. Hence, the plaintiff has preferred R.A. No.15/1979 on the file of Civil Judge (Sr.Dn.), Raichur, seeking consequential reliefs and the said appeal was allowed by the First Appellate Court. Felling aggrieved by the same, the said defendant - Khaja Hussain preferred

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RSA No.181/1992 before this Court and this Court, vide judgment and decree dated 29.06.1998, remanded the matter to the First Appellate Court for fresh consideration. The said appeal, after remand was renumbered as R.A. No.08/2000. In the meanwhile, said Khaja Hussain died and his daughters were brought on record as legal representatives. The First Appellate Court, by its judgment and decree dated 10.07.2002, decreed the suit of the plaintiff by declaring that, the plaintiff is entitled for relief of declaration with consequential relief of permanent injunction against the defendant therein. The said judgment and decree passed by the First Appellate Court reached finality, as the defendant in O.S No.165/1975 had not filed any appeal. Therefore, it is contended by the plaintiff that, defendants herein claiming right in respect of the schedule property through the defendant in O.S. No.165/1975 and as such, the plaintiff has filed O.S. No.233/2005, seeking relief of recovery of possession from the defendants.

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4. On service of notice, defendants entered appearance and filed detailed written statement, contending that the defendants are looking after the suit properties and as such, sought for dismissal of the suit on the ground that the defendants are in lawful possession of the suit property under their own rights and not on behalf of the plaintiff and accordingly, sought for dismissal of the suit.

5. Based on the pleadings on record, the Trial Court framed the issues for its consideration.

6. In order to substantiate their case, plaintiff has examined himself as PW.1 and got marked 32 documents as Exs.P1 to P32. On the other hand, the defendants have examined four witnesses as DW.1 to DW.4 and got marked 46 documents as Exs.D1 to D46.

7. The Trial Court, after considering the material on record, by its judgment and decree dated 03.04.2009, decreed the suit of the plaintiff with a direction to the defendants to deliver the vacant possession of the suit

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property to the plaintiff. Feeling aggrieved by the same, the plaintiff has preferred R.A. No.80/2010 before the First Appellate Court, seeking relief of mesne profit from the defendants and the defendants have preferred R.A. No.61/2010, challenging the judgment and decree passed by the Trial Court.

8. The First Appellate Court after re-appreciating the material on record, by judgment and decree dated 21.09.2012, allowed R.A. No.80/2010 filed by the plaintiff and dismissed R.A. No.61/2010 filed by the defendants and as such, confirmed the judgment and decree passed by the Trial Court in O.S. No.233/2005 and held that, the plaintiff is entitle for mesne profit. The defendants having suffered two decrees in R.A. Nos.61/2010 and 80/2010, have preferred these appeals.

9. This Court, by order dated 09.10.2020, formulated the following substantial questions of law for consideration:

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IN RSA.No.7335/2012 Whether the judgment and decree passed by the First Appellate Court needs interference by this Court in view of the observations made in judgment and decree passed in R.A.No.8/2000 by the District Judge, Raichur dated 10.07.2002?

IN RSA.No.7336/2012

Whether the judgment and decree of the First Appellate Court allowing the relief of enquiry into future mesne profits is justified in the absence of specific prayer in this regard?

10. I have heard Sri Deshpande G.V., learned counsel appearing for the appellant and Sri Sreevatsa, learned Senior Counsel appearing on behalf of Sri V.K. Nayak, learned counsel for respondent No.1.

11. Sri Deshpande G.V., learned counsel appearing for the appellant raised preliminary argument that, both the Courts below have not considered the limitation point raised by the defendants in claiming possession of the suit

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property by the plaintiff. He further contended that, the grant of decree of possession in favour of the plaintiff is unjustified, as there is no specific prayer and no Court Fee has been paid thereon by the plaintiff and accordingly, he sought for interference of this Court.

12. Per contra, Sri Sreevatsa, learned Senior Counsel appearing on behalf of Sri V.K. Nayak, learned counsel for respondent No.1 contended that, the declaratory relief sought for by the plaintiff being confirmed by the Competent Court in O.S. No.165/1975 and thereafter in R.A. No.08/2000, the defendants, who are claiming right through the legal representatives of Khaja Hussain cannot raise the plea relating to the limitation, nor obstruct the execution of the judgment and decree in O.S. No.165/1975 confirmed in R.A. No.08/2000. He further contended that, both the Courts below on concurrent facts held that, the defendants are liable to deliver the vacant possession of the suit property and therefore, as the plaintiff has proved issues No.1

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before the Trial Court in O.S. No.233/2005, he sought for dismissal of the appeals.

13. Having heard the learned counsel appearing for the parties, the title of the plaintiff in respect of the subject property is not in dispute, as the plaintiff has purchased the total extent of 39 acres 37 guntas of Raichur under eight registered sale deeds and thereafter, the plaintiff has filed O.S. No.165/1975 against one Khaja Hussain, seeking relief of declaration of ownership, which ultimately, confirmed in R.A. No.08/2000. It is to be noted that, said Khaja Hussain died leaving behind his three daughters and after suffering judgment and decree in R.A. No.08/2000, the legal representatives of Khaja Hussain have no right, title and interest over the property in question. It is pertinent to mention here that, the defendants are defending their suit on the ground that they are claiming right of their owners/legal representative of Khaja Hussain. The declaratory relief claimed by the plaintiff having reached finality in R.A. No.08/2000, I am

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of the view that, the plaintiff is entitled for recovery of possession from the defendants. The Trial Court, after considering the material on record, rightly answered issue Nos.1 and 2 based on the finding that the defendants have no independent right over the property in question subsequent to the judgment and decree in R.A. No.08/2000. However, the plaintiff is aggrieved by not considering the relief of mesne profits and feeling aggrieved by the same, the plaintiff has preferred R.A. No.80/2010. Taking into consideration the discussion made by the First Appellate Court as per the finding narrated at paragraph 26 of the impugned judgment and decree passed by the First Appellate Court, I am of the view that, the plaintiff has made out a case for granting relief of recovery of possession with mesne profits. Accordingly, the substantial questions of law formulated above favours the plaintiff and therefore, no interference is called for in these appeals.

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14. In the result, appeals are dismissed as devoid of merits.

In view of dismissal of the appeals, I.A. 1/2023 for production of additional documents filed in RSA No.7335/2012 does not survive for consideration and is accordingly dismissed.

Sd/-

JUDGE

LG

List No.: 1 Sl No.: 38