Remco Inds.
Workers House Bldg Coop. Soc. Vs. Lakshmeesha M. & Ors [2003] Insc 420 (28 August 2003)
Shivaraj
V. Patil & [D.M. Dharmadhikari. Dharmadhikari J.
These
two appeals arise out of common judgment dated 06.9.1996 passed by the High
Court of Karnataka at Bangalore in cross appeals filed by the plaintiff and
defendants [Regular First Appeal Nos. 191/1987 & 747/1986] against the
judgment dated 30.10.1986 of City Civil Court, Bangalore in Civil Suit No.5634
of 1980. The appellant which is a housing co-operative society of workers in
REMCO Industries, was defendant no. 1 before the trial court.
The
subject matter of dispute is the land in Survey No. 132/2 measuring 1 acre 3 guntas
[now said to have been merged into Survey No. 305] situate in village Kempapur
(now part of Bangalore City). The present appellant – Society of workers claims title
to the land and it is submitted that it has built houses for its members on it.
It is
not in dispute that the suit land was an Inam land. Inams were abolished by Karnataka
(Personal & Miscellaneous) Inams Abolition Act, 1954. Under the said Act,
tenants in occupation of land are given preferential right to apply for
Occupancy Rights and if they fail to do so, the Inamdar has been given a right
to apply for grant of Occupancy Rights.
The
plaintiff [respondent no. 1 herein] is the purchaser of suit land from Smt. Subbalakshamma,
the Inamdar. One Muniyappa who claimed to be a tenant, applied on 22.4.1959 for
grant of occupancy rights - amongst others on the suit land. His application
for grant of Occupancy Rights for suit land in Survey No. 132/2 with other
lands was allowed by the Special Deputy Commissioner by Order dated 28.5.1965
which was produced by the defendants before the trial court and was admitted as
Ex. D-3 in the suit. During pendency of application for grant of Occupancy
Rights, Muniyappa's heirs sold the suit land with other lands to REMCO factory
in 1963. REMCO factory obtained permission for conversion of the use of land
for non- agricultural purpose. The REMCO factory then sold the suit land with
other 24 Acres of land to the present appellant – Society of its workers for
construction of housing colony.
The
plaintiff's case is that three years after the grant of Occupancy Rights to Muniyappa,
by order dated 28.5.1965 of Special Deputy Commissioner [Ex. D-3], the Inamdar
- Smt. Subbalakshamma made an application on 16.12.1968 to the Special Deputy
Commissioner for grant of Occupancy Rights for the remaining areas in the Inam
land in her favour. In her application, she did not claim any specific land but
prayed that "the court be pleased to determine the extent of land which
she is entitled to be registered as an occupant and register her name as an
occupant ……." On the basis of above application, the Special Deputy
Commissioner passed an order dated 09.12.1969 [marked as Ex. P- 1] granting
Occupancy Rights to her amongst other lands in Survey No. 132/2 area 1 Acre 3 Guntas.
The
plaintiff based her title and claimed possession of the suit land in Survey No.
132/2 on the basis of the grant of Occupancy Rights in her favour by the Order
dated 09.12.1969 passed by Special Deputy Commissioner [Ex. P-1] in which the
area in Survey No. 132/2 granted is 1 acre 3 guntas which is less than her
claim in the suit to the land of area 1 acre 12 guntas.
It is
true that in the written statement of the defendant no. 1, there is no specific
reference to the order dated 28.5.1965 [Ex. D-3] passed by Special Deputy
Commissioner granting Occupancy Rights to tenant Muniyappa in Survey No. 132/2
area 1 acre 3 guntas. In the course of trial, however, copy of the order dated
28.5.1965 passed by the Special Deputy Commissioner in favour of tenant Muniyappa
was admitted in evidence and marked as Ex. D-3 without any objection by the plaintiff.
On the
provisions of the Act under consideration, it is not disputed, as a legal
position, by the counsel appearing for the parties that the Inamdar could be
granted Occupancy Rights in Inam lands on which no tenant had been granted any
Occupancy Rights. The necessary consequences of this legal position is that if
the suit land is included in the grant of Occupancy Rights to Muniyappa in the
order dated 28.5.1965 [Ex. D-3] of the Special Deputy Commissioner, the same
land could not have been granted to Inamdar, Subbalakhshamma by order dated
09.12.1969 [Ex. P-1]. Apparently, suit land in Survey No. 132/2 is carved out
from Survey No. 132 and the land in Survey No. 132/2 also has an area larger
than 1 acre 3 guntas because the plaintiff's own suit is for title and
possession of land in the said Survey No. 132/2 to the extent of 1 acre 12 guntas.
It has
also been pointed out from the contents of the order dated 09.12.1969 [Ex. P-1]
passed by Special Deputy Commissioner in favour of Inamdar that she was granted
Occupancy Rights amongst others in suit land of Survey No. 132/2 to the extent
of her undivided 1/7th share. The identification of land in Survey No. 132/2 to
the extent of 1/7th share of the Inamdar was not done in the order dated
09.12.1969. The plaintiff's case is that the identification of land in Survey
No. 132/2 to the extent of 1 acre 3 guntas was done when on the basis of grant
of Occupancy Rights to the extent of 1/7th share in her favour, she approached
Revenue authorities for mutation of her name. It is in the mutation proceeding
that the Occupancy Rights to the extent of her 1/7th share in Survey No. 132/2
were identified in her favour. These documents are the basis of her suit for
title and possession of Survey No. 132/2 area 1 acre 3 guntas.
The
trial court being the VI Addl. City Civil Court of Bangalore City partly
decreed the suit by declaring the respondent/plaintiff to be owner of 1 acre 3 guntas
of land in Survey No. 305/2 which is said to be the new number of old Survey
No. 132/2. The trial court did not grant any decree for delivery of possession
of land on a finding that the plaintiff's Occupancy Rights were declared for
her 1/7th share and she would have to work out her rights for possession of
specific portion of land in her favour by a suit for partition.
The
High Court in cross appeals preferred by plaintiff and defendant no.1 not only
confirmed the decree of declaration of the title of the plaintiff to the suit
land but also granted decree of delivery of possession of the land holding that
if in the suit land of Survey No. 132/2, no Occupancy Rights had been granted
to any tenant, the plaintiff's 1/7th share could be ascertained to the extent
of 1 acre 3 guntas.
The
learned senior counsel appearing for the appellant submits that the main
contesting issue between the parties is whether the suit land in Survey No.
132/2 area 1 acre 3 guntas being already covered by the grant dated 28.5.1965
[Ex. D-3] in favour of the tenant, could be a subject of further grant in favour
of the Inamdar under order dated 09.12.1969 [Ex. P-1]. It is further submitted
that as Survey No.132/2 is apparently carved out of Survey No. 132. The Survey
No. 132/2, according to plaintiff's own claim has an - area larger than 1 acre
3 guntas because the decree for declaration and possession is sought for area 1
acre 12 guntas in Survey No. 132/2.
The
other contesting issue before the court was identity of the suit land. The
legal position is not controverted that the Inamdar could be granted Occupancy
Rights only in respect of land in the In am for which no Occupancy Rights had
been granted to the tenants. The learned counsel appearing for the appellant,
therefore, submits that the plaintiff's suit ought to have been dismissed for
want of identification of the suit land under the alleged grant dated
09.12.1969 [Ex. P-1] made in favour of Inamdar. In the alternative, for the
appellant, it is submitted that the case be remitted to the trial court for
framing a specific issue on the identity of the suit land covered by earlier
order dated 28.5.1965 [Ex.D-3] containing grant of Occupancy Rights in Survey
No. 132/2 area 1 acre 3 guntas in favour of the tenant Muniyappa and the
identity of the suit land in the grant dated 09.12.1969 [Ex.P-1] made in favour
of erstwhile Inamdar for the same Survey No. 132/2 with same extent or area - 1
acre 3 guntas.
The
prayers made in the appeals have been strongly opposed by the learned senior
counsel appearing for plaintiff/ respondent. It is submitted that although
order dated 28.5.1965 in favour of the tenant was produced in the trial court
and marked as an admitted document [Ex. D-3], it was never made foundation of
the title of the defendant by raising pleadings in that behalf in the written
statement of defendant no. 1. It is also submitted that at no stage in the
trial court or the High Court in appeals, any issue was raised basing title of
defendant no. 1 on the order dated 28.5.1965 [Ex. D-3]. It is, therefore,
submitted that no case is made out for setting aside the decree in favour of
the plaintiff or for remand of the matter to the trial court for framing and
trial of any additional issue based on the orders dated 28.5.1965 [Ex. D-3] and
dated 09.12.1969 [Ex. P-1].
After
hearing the learned counsel appearing for the parties, we have formed an
opinion that the interest of justice demands remand of case to the trial court
for framing and trial of specific issue on the grant of Occupancy Rights under
order dated 28.5.1965 in favour of the tenant [Ex. D-3] and the order dated
09.12.1969 [Ex.P-1] in favour of erstwhile Inamdar. True it is that in the
written statement of defendant no. 1, no clear and specific pleading to base
their claim for title and possession of the suit land on grant dated 28.5.1965
[Ex. D-3] was raised. No specific prayer appears to have been made either in
the trial court or in the High Court in appeals to consider issue of identity
of the land on the basis of the grant dated 28.5.1965 [Ex. D- 3].
It
cannot, however, be lost sight of that the burden to prove title and claim for
possession of specific land in Survey No. 132/2 was initially on the plaintiff.
The defendant no. 1 in the written statement contested the claim of the
plaintiff and claimed title in itself. The grant of Occupancy Rights in favour
of tenant Muniyappa contained in the order dated 28.5.1965 [Ex. D-3] was
produced in the trial court without objection from the plaintiff and allowed to
be exhibited and marked as Ex. D-3. When such a document of grant of suit land
to the extent of 1 acre 3 guntas in favour of defendant no. 1 was before the
trial court, it was necessary for it to consider its effect on the subsequent
grant dated 09.12.1969 [Ex. P-1] in favour of the erstwhile Inamdar. The legal
position not in dispute is that if the suit land in Survey No. 132/2 area 1
acre 3 guntas had already been granted by order dated 28.5.1965 [Ex. D-3] to
the tenant, Muniyappa, the same land could not have formed part of the grant to
the extent of 1/7th share to erstwhile Inamdar in the order dated 09.12.1969
[Ex. P-1]. A clear legal issue, based on earlier grant dated 28.5.1965 [Ex.
D-3] and the subsequent grant dated 09.12.1969 [Ex. P-1] with the identity of
the land under the two grants did arise before the trial court as well as the
appellate court.
The
said issue has not been answered by any of the two courts below. The plaintiff
has to succeed on the strength of its own case and not on the weakness of the
case of the defendant. In opposing the prayer for remand, learned counsel
appearing for the plaintiff/respondent has placed strong reliance on the
decision of Privy Council in Kanda & Ors vs. Waghu [AIR (37) 1950 Privy
Council 68]. The contention advanced is that since pleadings based on Ex. D-3
were not raised in the written statement of defendant no.
1 and
no issue on the basis of Ex. D-3 having been raised in the trial court, this
Court should not remit the matter for retrial on the said issue.
As we
have stated above, document [Ex. D-3] was admitted and marked as evidence
before the trial court. When such document was admitted, naturally the question
of effect of that document on the subsequent grant [Ex. P-1] in favour of
plaintiff did arise for consideration of the trial court as well as appellate
court.
Surprisingly,
the trial court while discussing the claim of title of the plaintiff to Survey
No. 132/2 for area 1 acre 12 guntas did not make any mention of the document
admitted and exhibited before it as Ex. D-3. The relevant part of the
discussion in the judgement of trial court apparently shows that the document
of earlier grant of Occupancy Rights to the tenant [Ex. D-3] had been
overlooked. The said part of judgment reads thus :- "They also do not show
what was the extent of land comprised in S.No. 132/2. The only material
available on record to show the extent of land in S.No. 132/2 is Ex. P-12 the
revised mutation order passed by the Deputy Tahsildar of Bangalore North Taluk
dated 30.5.1972.
According
to para 2 of the said order the total extent of area comprised in S.No. 132/2
corresponding to S.Nos. 305 and 472 was 8 acreas and 12 guntas and if that is
so than 1/7th of the total extent of land comprised in S.No. 132/2 would be 1
acre 7.4 guntas and not 1 acre and 12 guntas. No doubt the Deputy Tahsildar, North Taluk in Ex.P-12 has stated that Subbalakshmamma's
share was 1 acre 12 guntas as there was a balance of – acres 29 guntas as
remaining in S.No. 305 after the lands previously registered in the name of one
Muniyappa, Sakamma and Lakshmamma and therefore it was possible to allot 1 acre
12 guntas in S.No. 305 and he has therefore recognised the share of P.W. 2 Subbalakshmamma
in S.No. 305 and as 1 acre and 12 guntas. However, the question is not whether
1 acre and 12 guntas was available in S.No. 305 so that he could recognise P.W.
2 Subbalakshmamma as the owner of the said 1 acre and 12 guntas in S.No. 305
which is now given S.No. 305/2 but as to whether Subbalakshmamma was entitled
to in pursuance to the order passed as per the original of Ex. P-1 to 1 acre
and 12 guntas.
In the
cross appeals before the High Court, document [Ex. D-3] had again been
overlooked. See the following part of the judgment of the High Court in
paragraph 18 :- "At some stage it was canvassed by Sri N.S. Krishnan that
the land in question and many other lands were purchased by the management of
the REMCO factory for formation of a layout from the tenants in the occupation
of the Inam land. Not a scrap of paper is produced in the suit to show that
these tenants had claimed occupancy rights under any provisions of Inams
Abolition Act before the Authority namely the Special Deputy Commissioner for Inams
Abolition. But subsequent purchasers namely the management of the REMCO factory
have also not made any claim before the authority for occupancy rights.
[Underlining
to supply emphasis] From the above resume of facts and the nature of orders of
grants of Occupancy Rights to the contesting parties, we find that the basic
issue of the effect of earlier grant dated 28.5.1965 [Ex. D-3] in favour of the
tenant - Muniyappa on the subsequent grant dated 09.12.1969 [Ex. P-1] in favour
of plaintiff/respondent was neither addressed to by any of the courts below nor
a decision has been rendered on the same. The issue of effect of Ex. D-3 on
Ex.P-1 and the identity of the land under the two grants is vital to the just
decision of the case. The powers of the appellate court are not inhibited by
the acts or omissions of the parties. Rule 25 of Order 41 of Code of Civil
Procedure empowers the appellate court to frame an issue and remit it for trial
which has been omitted to be framed and tried by the trial court and which
appears to the appellate court essential to the right decision of the case.
Rule 23 A Order 41 introduced by CPC Amendment Act No. 104 of 1976 w.e.f.
1.2.1977 confers powers on the appellate court to remand whole suit for
retrial. In our considered opinion, this is a fit case where this Court should
exercise powers of remand under Order 41 Rule 25 read with Rule 23 A of CPC.
Consequently,
we allow these appeals. The judgment and decree dated 30.10.1986 of the City
Civil Court, Bangalore and the common judgment and decree dated 06.9.1996 of
the High Court in appeals are set aside. The whole case is remitted to the
trial court for deciding specific issues on the effect of grant dated 28.5.1965
[Ex.D- 3] on the subsequent grant dated 09.12.1969 [Ex. P-1] and the identity
of the land under the two grants. The trial court shall recast the issues with
the issue indicated above and after giving additional opportunities to both the
parties to lead additional evidence on the issues involved, decide the suit
afresh in accordance with law.
In
view of the order of remand passed by us, we leave the parties to bear their
own costs in these appeals.
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