SRI V.N. KRISHNA MURTHY & ANR. ETC. ETC. versus SRI RAVIKUMAR & ORS. ETC. ETC. on 21 August 2020

1. The instant appeals have been filed against the commonjudgment dated 21.02.2019 passed by the High Court of Karnataka,FPrincipal Bench at Bengaluru in R.F.A. Nos. 1434 of 2017, 1435 of2017, 1436 of 2017 and 1775 of 2017 declining to grant leave to file anappeal.

2. Necessary facts in brief for the adjudication of controversycan be summarized as under :-G

Disputes relates to land comprised in Survey No. 105/3 measuring37 guntas, Survey No. 105/9 measuring 34 guntas and Survey No. 105/4B measuring 20 guntas, situate at Village Jakkur, Bengaluru, NorthTaluk. Respondent Nos. 5 and 6 herein who were recorded owner ofthe land in dispute executed a registered agreement of sale of the land inHdispute in favour of Respondent, Karnataka State Khadi and Village

Industries Worker’s House Building Co-operative Society Ltd. Besidesexecuting registered agreement to sale dated 31.10.1989 and 05.08.1992side by side they also executed a General Power of Attorney in favourof office bearers of the respondent society authorizing them to enter intosale transaction of the suit property on their behalf. It is to be taken noteof that General Power of Attorney was executed giving absolute rightsto the Attorney to do all such acts which are necessary for sale of theproperty.

A

B

3. On the strength of General Power of Attorney, sale deeds inrespect of land in dispute was executed by the Attorneys in favour ofappellants on various dates.

C

4. Respondents–Plaintiffs filed four Original Suits being O.S. Nos.1529 of 2014, 1532 of 2014, 1534 of 2014 and 7758 of 2016 seekingthe following reliefs :- a)To declare that the registered agreement to sell dated05.08.1992, as barred by limitation in view of time beingDthe essence of contract, and beyond the period oflimitation, be declared as null and void, illegalunenforceable and inoperative and not binding on theplaintiffs.

b)To declare and cancel the registered further agreementfor sell dated 31.10.1989 executed by Defendant Nos.1and 2 in favour of defendant society which isregistered as document bearing no. 1194/92-93, inbook no.I, stored in vol no. 27 at pages 86-88 in theoffice of the Sub Registrar Yelahanka Bangalore as wellas unregistered agreement to sell dated 23.05.1988 asbarred by time, alternatively in case of default by the3[rd]defendant, this Hon’ble Court be pleased to executecancellation agreement to sell through courtcommissioner.

E

F

G

c)The 3[rd] defendant be directed to execute a registeredcancellation deed before the jurisdictional SubRegistrar.

d)To award and issue a judgment and decree of permanentinjunction restraining the Defendant/s, their agents or H

Aanybody acting on their behalf from interfering withthe possession suit schedule property.

e)Injunction restraining the defendants their agents,servants, officials, assigns or anyone acting or claimingon their behalf from demolishing or in any way enteringBupon or in any way interfering property.

f)The defendants be directed to pay the cost of theproceedings.

g)And further the Hon’ble Court be pleased to award passsuch other just and equitable relief/s as this Hon’bleCCourt deems fit in the circumstances of the suit andaward costs in the interest of justice and equity.

5. Suits were filed on the allegations that suit property is ancestralproperty and the plaintiffs were co-owner and thus defendant had noright to execute the agreement of sale ignoring the interest of the plaintiff.DIt was also pleaded that since the agreement of sale did not culminateinto a sale transaction, the same are barred by law of limitation and arethus unenforceable. It may be relevant to mention at this stage that thesale deeds executed in favour of appellants by the attorneys of therecorded land holder were not questioned in the suit and were neitherEsubject matter of dispute therein nor any relief was claimed in theirrespect.

6. The Trial Court vide its judgment dated 27.07.2016, decreedthe suit by passing the following decree:- “It is ordered and decreed that the suit of the plaintiffsFis decreed.

It is further ordered and decreed that the registeredagreement of sale dated 30.10.1989 and 05.08.1992 is barredby limitation and not binding on the plaintiffs.

It is further ordered and decreed that the defendant-Gsociety or anybody on their behalf permanently restrainedfrom interfering with the plaintiff’s peacefully possession andenjoyment of the suit schedule property.

It is further ordered and decreed that the parties aredirected to bear their own costs.”

H

7. During the pendency of the suit proceedings, the appellantsmade an application under Order 1 Rule 10 (2) CPC for impleadmentwhich was dismissed by the Trial Court. The order was challenged byfiling a Writ Petition before the High Court which came to be dismissedas infructuous as the suit itself came to be decided, in the meantime.

8. Aggrieved by the judgment and decree of the Trial Court, theappellants preferred R.F.A. Nos. 1434 of 2017, 1435 of 2017, 1436 of2017 and 1775 of 2017. The appeals were duly accompanied by anapplication seeking leave to appeal against the judgment and decree.

9. High Court vide a common judgment and order impugned inthese appeals while declining to grant leave to file an appeal rejected theapplication.

10. The High Court while dismissing the application made by theappellants seeking leave to appeal has observed that:- “It is true that the Trial Court has granted a very peculiardeclaratory relief which in my opinion the plaintiffs in thesuit could have set up by way of defence, had they been suedby the Housing Society for specific performance. Be that asit may, all the applicants/appellants claim to be in possessionof their respective sites on the strength of the sale deedsexecuted by the General Power of Attorney holders of theowners of the lands. What is stated is that the agreements ofsale were executed in favour of the Housing Society and thatPower of Attorney was executed in favour of some personswho are office bearers of the Housing Society. If this is theposition, I think that the applicants/appellants do have anindependent right which they appear to have derived on thebasis of the sale deeds executed by the owners of the land. Itmay be a fact that the sale deeds were executed by the Powerof Attorney holders of the owner, but in reality those saledeeds were executed by the owners of the land and, therefore,it can be said that the nature of declaratory relief granted bythe Trial Court in the suit does not affect the interest of theapplicants/appellants.”

The Trial Court further went on to observe that; “if they are inpossession of the sites purchased by them, they have to protect theirpossession by filing independent suits. I do not think they have aremedy by filing an appeal challenging the judgment in the suit”.

A

B

C

D

E

F

G

H

A

A11. Learned Counsel for the appellants argues before us that theinterest of the appellants is directly involved in the subject matter of thesuit. They have become absolute owners of the sites in question on thebasis of sale deeds. The judgment of the Trial Court holding the saleagreements time barred and granting a decree of permanent injunctionactually affects their interests as they are in possession of the suitBproperty.

12. On the other hand, learned counsel for the respondentsvehemently contended that the claim of the appellants herein is based onthe sale deeds executed on the strength of the General Power of Attorneyexecuted by the recorded owners of the suit property. There is neitherCany reference of the sale deeds in the suit nor the sale deeds refer toany agreement to sell. Therefore, the relief claimed, if any, by theappellants based on sale deeds in their favour is entirely different, andthere is no locus to challenge the decree passed by the Trial Court andtheir application for leave to appeal has rightly been dismissed.

D13. We have considered the rival submissions made by the learnedcounsel for the parties.

14. In the backdrop of above facts, the question which arises forour consideration is as to whether the appellants held the locus to questionthe judgment and decree passed by the Trial Court and whether theEHigh Court was justified in rejecting their leave to appeal.

15. Section 96 and 100 of the Code of Civil Procedure provide forpreferring an appeal from any original decree or from decree in appealrespectively. The aforesaid provisions do not enumerate the categoriesof persons who can file an appeal. However, it is a settled legal propositionFthat a stranger cannot be permitted to file an appeal in any proceedingsunless he satisfies the Court that he falls with the category of aggrievedpersons. It is only where a judgment and decree prejudicially affects aperson who is not party to the proceedings, he can prefer an appeal withthe leave of the Appellate Court. Reference be made to the observationGof this Court in Smt. Jatan Kumar Golcha Vs. Golcha PropertiesPrivate Ltd.[1]:- “It is well settled that a person who is not a party to the suitmay prefer an appeal with the leave of the Appellate Court and such leave should be granted if he would be prejudiciallyaffected by the Judgment.”

16. This Court in State of Punjab & Ors. Vs. Amar Singh &Anr.[2] while dealing with the maintainability of appeal by a person who isnot party to a suit has observed thus :- “Firstly, there is a catena of authorities which, following thedictum of Lindley, L.J., in re Securities Insurance Co., [(1894)2 Ch 410] have laid down the rule that a person who is not aparty to a decree or order may with the leave of the Court,prefer an appeal from such decree or order if he is eitherbound by the order or is aggrieved by it or is prejudiciallyaffected by it.”

17. In Baldev Singh Vs. Surinder Mohan Sharma and Ors[3].,this Court held that an appeal under Section 96 of the Civil ProcedureCode, would be maintainable only at the instance of a person aggrievedby and dissatisfied with the judgment and decree. While dealing with theconcept of person aggrieved, it was observed in paragraph 15 as under:- “A person aggrieved to file an appeal must be one whoseright is affected by reason of the judgment and decree soughtto be impugned.”

18. In A. Subash Babu Vs. State of A.P. and Anr.[4], this Courtheld as under:-

“The expression ‘aggrieved person’ denotes an elastic andan elusive concept. It cannot be confined that the bounds ofa rigid, exact and comprehensive definition. Its scope andmeaning depends on diverse, variable factors such as thecontent and intent of the statute of which contravention isalleged, the specific circumstances of the case, the natureand extent of the complainant’s interest and the nature andextent of the prejudice or injuries suffered by him.”

19. The expression ‘person aggrieved’ does not include aperson who suffers from a psychological or an imaginary injury; aperson aggrieved must, therefore, necessarily be one, whose right 2 (1974) 2 SCC 70

3 (2003) 1 SCC 34

4 (2011) 7 SCC 616

A

B

C

D

EF

G

H

Aor interest has been adversely affected or jeopardized (vide ShantiKumar R. Canji Vs. Home Insurance Co. of New York[5] and State ofRajasthan & Ors. Vs. Union of India & Ors[.6]).

20. In Srimathi K. Ponnalagu Ammani Vs. The State OfMadras represented by the Secretary to the Revenue Department,BMadras and Ors[.7], this Court laid down the test to find out when itwould be proper to grant leave to appeal to a person not a party toa proceeding against the decree or judgment passed in suchproceedings in following words:- “Now, what is the test to find out when it would be proper toCgrant leave to appeal to a person not a party to a proceedingagainst the decree or judgment in such proceedings? We thinkit would be improper to grant leave to appeal to every personwho may in some remote or indirect way be prejudiciallyaffected by a decree or judgment. We think that ordinarilyleave to appeal should be granted to persons who, thoughDnot parties to the proceedings, would be bound by the decreeor judgment in that proceeding and who would be precludedfrom attacking its correctness in other proceedings.”

21. Applying the above tests, we are of the considered opinionthat appellants can neither be said to be aggrieved persons nor bound byEthe judgment and decree of the Trial Court in any manner. The reliefclaimed in the suit was cancellation of agreement to sell. On the otherhand, the sale deeds which were the basis of the claim of the appellantswere executed on the basis of General Power of Attorney, and hadnothing to do with the agreement to sell which was subject matter ofFsuit. The judgment and decree of the Trial Court is in no sense a judgmentin rem and it is binding only as between the plaintiffs and defendants ofthe suit, and not upon the appellants.

22. Though it has been vehemently contended before us and alsopleaded before the High Court that the judgment and decree of the TrialGCourt affects the appellants adversely. The appellants have failed toplace any material or demonstrate as to how the judgment and decreepassed by the Trial Court adversely or prejudicially affects them. Meresaying that the appellants are prejudicially affected by the decree is not 5 (1974) 2 SCC 3876 (1977) 3 SCC 592H7 66 Law Weekly 136

sufficient. It has to be demonstrated that the decree affects the legalrights of the appellants and would have adverse effect when carriedout. Facts of the case clearly demonstrate that suit which has beendecreed is confined only to a declaration sought in respect of anagreement to sell. Injunction was also sought only against the defendant-society or its officers or assigns. There is not even a whisper in theentire plaint or in suit proceedings about the sale deed executed in favourof the appellants by the General Power of Attorney holders or even forthat matter in the judgment and decree of the Trial Court.

A

B

A

B

23. The appellants have thus failed to demonstrate that they areprejudicially or adversely affected by the decree in question or any oftheir legal rights stands jeopardized so as to bring them within the ambitof the expression ‘person aggrieved’ entitling them to maintain appealagainst the decree.

C

24. In view of the facts and discussions, we find no infirmity inthe judgment of the High Court dismissing the application filed by theDappellants seeking leave to appeal against the decree. The appeals,accordingly, stand dismissed. However, we leave the parties to beartheir own costs.

Divya Pandey

Appeals dismissed.

E

F

G

H