SHIVSHANKARA & ANR versus H.P. VEDAVYASA CHAR on 29 March 2023

v.

H.P. VEDAVYASA CHAR

(Civil Appeal No. 10215 of 2011)

MARCH 29, 2023

[B. R. GAVAI AND C. T. RAVIKUMAR, JJ.]

Abatement: Abatement of suit – Non-joinder of necessaryparties – Non-impleadment of all other legal heirs of deceaseddefendant – Effect of – Held: In the event of death of one of thedefendants, when the estate/interest was being fully and substantiallyrepresented in the suit jointly by the other defendants along withdeceased defendant and when they are also his legal representatives,by reason of non-impleadment of all other legal heirs consequentialto the death of the said defendant, the suit would not abate – Suchsuit not bad for non-joinder of necessary parties of all his legalheirs/representatives.

Amendment: Amendment of pleadings at appellate stage –Permissibility of – Held: While dealing with such prayers, the Courtsshould avoid hyper technical approach – Circumstances attendingto the particular case are to be taken into account to allow or not toallow such prayer – It is allowable only in rarest of rarecircumstances – It cannot be granted on the mere request, especiallyat the appellate stage – On facts, trial court allowed the amendmentof the plaint, and the defendants were given multiple opportunitiesto file an additional written statement, which they did not avail andthe suit was decreed – Subsequent developments culminated in theimpugned judgment wherein the High Court declined permission toamend the written statement to the defendants – High Courtobserved that grant of amendment of written statement, if at thatstage would have necessitated framing of fresh issues and de novotrial – Thus, no perversity or illegality with the rejection of the prayerfor amendment of the written statement.

Suit: Suit for possession, based on possessory title – Factsdisclosing no title in either party at the relevant time – Priorpossession – Relevance of – Held: In such circumstances, when thefacts disclose no title in either party, at the relevant time, prior A

B

CD

E

F

G

H

Apossession alone decides the right to possession of land in theassumed character of owner against all the world except againstthe rightful owner.

Suit: Suit for injunction and for recovery of possession byrespondent against the appellants – Maintainability of – Held: OnBa careful consideration of the available pleadings of the appellants,the High Court held that they did not disclose their defence in theirwritten statement and at the same time did not even contend thatthey are in possession of the suit property – Thus, the High Courtcorrect in holding the question of maintainability of the suit in theaffirmative and in favour of the respondent – Trial court afterCcarefully considering the evidence on record held that the respondentis entitled to get back the possession of suit schedule property fromwhich he was dispossessed – After careful consideration of theadditional evidence recorded and transmitted to the High Court bythe trial court and considering all contentions and aspects, the HighDCourt only confirmed the judgment and decree of the trial court –Thus, when the concurrent findings of the courts below are theoutcome of the rightful consideration and appreciation of materialson record, they do not call for any interference.

Transfer of Property Act, 1882: s. 52 – Transfer of property

Conclusion

Transfer of Property Act, 1882: s. 52 – Transfer of property Epending suit relating thereto – Doctrine of Lis pendens – Held:Import of s. 52 is that if there is any transfer of right in immovableproperty during the pendency of a suit such transfer will be non estin the eye of law if it will adversely affect the interest of the otherparty to the suit in the property concerned – Wherever TP Act is notapplicable, such principle in the said provision of the Act, based onFjustice, equity and good conscience is applicable in a given similarcircumstance, like Court sale etc – On facts, the suit from which theappeal arises was one based on possessory title, the legality of saledeed need not be gone into in this appeal and rightly has not beengone into by the High Court – High Court declined to act upon theGsame, in the light of the doctrine of lis pendens.

Pleadings: Proof offered without pleadings – Relevance of –On facts, claim for possession/ownership over the suit property bythe defendants – Original defendants failed to raise sufficient andappropriate pleadings in the written statement that they have betterHright for possession of the suit properties – No amount of proof offered without appropriate pleadings would have any relevance –Finding of the High Court that any volume of evidence sansappropriate pleadings would be of no avail is correct.

Dismissing the appeal, the Court

HELD: 1.1 There can be no doubt with respect to thesettled position that the Court to which the case is remanded hasto comply with the order of remand and acting contrary to theorder of remand is contrary to law. In other words, an order ofremand has to be followed in its true spirit. [Para 7][372-H; 373-A]

1.2. In dealing with prayers for amendment of the pleadingsthe Courts should avoid hyper technical approach. But at thesame time, the Court should keep reminded of the position thatthe same cannot be granted on the mere request through anapplication for amendment of the written statement, especially atthe appellate stage where what is called in question is the judgmentand decree passed by the trial court and in other words, after theadverse decree and without a genuine, sustainable reason. Thecircumstances attending to the particular case are to be takeninto account to consider whether such a prayer is allowable ornot and no doubt, it is allowable only in rarest of rarecircumstances. In the case on hand, prayer to amend the plaintwas allowed by the trial court. Accordingly, the amendment wascarried out by the plaintiff. Indisputably, thereafter, during thespan of one year or thereabouts more than eight opportunitieswere given to the defendants therein to file additional writtenstatement, if any. Indubitably, the materials on record would revealthat the opportunities were not availed and no additional writtenstatement was filed. Thereafter, based on the pleadings, issueswere framed. Obviously, the defendants did not adduce anyevidence for the reasons best known to them. The suit came tobe decreed thereafter. All the subsequent developments whichultimately culminated in the impugned judgment is discussed.Evidently the High Court observed that if the amendment ofwritten statement was allowed at that stage, it would havenecessitated framing of fresh issues and parties were to agitatetheir rights as if in a de novo trial. In the circumstances thus A

B

C

D

EF

G

H

Arevealed from the materials on record and when such aspectsand evidence were taken into account by the High Court to declinepermission to amend the written statement, there is no reasonor justification to interfere with it. [Para 14 & 15][377-A-E; 378-D-E; 379-B-E]

B1.3. In the wake of the admission by DW-1, the attempt tobring in new plea by amending the written statement that thesecond defendant (the deceased second appellant) had purchasedthe suit schedule property as per the sale deed dated 05.10.2000has to be seen. Since admittedly and indisputably the suit fromwhich the appeal arises was one based on possessory title, theClegality of the sale deed need not be gone into in this appeal andrightly has not been gone into by the High Court. Evidently, theHigh Court declined to act upon the same, in the light of thedoctrine of lis pendens. Even if it is taken for granted that theprovisions under Section 52 of the Transfer of Property Act areDnot applicable as such in the case on hand it cannot be disputedthat the principle contained in the provision is applicable in thecase on hand. It is a well-nigh settled position that wherever TPAct is not applicable, such principle in the said provision, whichis based on justice, equity and good conscience is applicable in agiven similar circumstance, like Court sale etc. Transfer ofEpossession pendente lite will also be transfer of property withinthe meaning of Section 52 and, therefore, the import of Section52 is that if there is any transfer of right in immovable propertyduring the pendency of a suit such transfer will be non est in theeye of law if it will adversely affect the interest of the other partyFto the suit in the property concerned. The effect of Section 52 isthat the right of the successful party in the litigation in regard tothat property would not be affected by the alienation, but it doesnot mean that as against the transferor the transaction is invalid”.[Para 16][379-D-H; 380-A]

G1.4. The prohibition by application of the principles of thedoctrine of lis pendens would take its effect with the institutionof the suit. There is no hesitation to hold that the High Court wasperfectly justified in the circumstances, to come to the conclusion,while considering the application for amendment of the writtenstatement filed at the appellate stage, that granting the sameHwould have, in effect, necessitated framing of fresh issues and constrained the parties to agitate their rights as if in a de novotrial. The aspects is referred solely to drive home the point thatsince the subject suit is based only on possessory title viz., onthe basis of prior possession the finding and consequentialrejection of the prayer for amendment of written statement tobring in the plea of purchase of the property pending the suit bythe deceased second appellant cannot be said to be groundresulting in grave injustice. [Para 16][380-B-D]

1.5. There was considerable delay in seeking amendmentof the written statement or filing additional written statement andno sustainable reason was assigned as to why such prayers werenot sought in the trial court while the original proceedings werepending before it. It is also relevant to note that such prayerswere also not made before the High Court when the High Courtinitially disposed of RFA and also before this Court in the CivilAppeal against the said judgment. The impact and effect of theorder of remand passed by this Court assumes great relevance.If the judgment of the High Court was not modified by this Courtas per judgment in the Civil Appeal, it would have had the effectof reviving the suit in full and in such eventuality, the suit shouldhave been deemed to be pending. [Para 20, 21][382-A-D]

1.6. In view of the subsequent judgment of this Court inthe said Civil Appeal directed against the order of remand inRFA, the judgment of the High Court got merged in it. As perthe same, the scope of proceedings before the trial court wasconfined only to record the additional evidence of defendants andto transmit the same to the High Court so as to enable the HighCourt to dispose of the RFA afresh. The trial court could nothave expanded the scope of the proceedings before it contraryto the order of remand and hence, the trial court was perfectlycorrect in rejecting the application for amending the writtenstatement [Para 22][383-A-C]

1.7. In the totality of the circumstances, taking into accountthe relevant reasons assigned by the High Court for disallowingthe prayer for amendment of the written statement and takingnote of the delay and the failure to offer any reason therefor and ABC

D

EF

G

H

Athe reasons mentioned there is no perversity or illegality withthe rejection of the prayer for amendment of the written statement.On the questions as to maintainability of the suit, whether thesuit is bad for non-joinder of necessary parties as also whetherthe suit ought to have been held as abated against all thedefendants for non-substitution of all the legal heirs on the deathBof the original third defendant, the courts below returnedconcurrent findings against the appellants. [Para 23, 24][383-F-H; 384-A]

1.8 It cannot be understood as to how the plea regardingthe maintainability of the suit arise for consideration. TheCcontention of the appellants is that it was filed under section 6 ofthe Specific Relief Act and while disposing of the Civil Appeal,this Court held against the respondent/ the plaintiff that the suitis not one under Section 6 of the Specific Relief Act. Ergo,according to the appellants, the relief claimed for possession byDthe plaintiff/the respondent was not entertainable as he being aperson claiming only possessory title and the original defendantNo. 2/ the deceased appellant No. 2 being the lawful owner of thesuit schedule property. Though the contentions appear to beattractive and acceptable at the first blush the fact is that theyare absolutely untenable and rightly held against them, in view ofEthe materials on record. It is true that the respondent/ the plaintiffhad a case that O.S. No. 6456 of 1993 filed under Section 6 of theSpecific Relief Act and even after, the judgment in the Civil Appealhe seems to have attempted to resurrect the said question. Butthis Court is entirely in agreement with the High Court that theFquestion whether the suit is one under Section 6 of the SpecificRelief Act is not now available for consideration as it was heldotherwise by this Court in the judgment in the Civil Appeal andas such it had attained finality. On the face of judgment in theCivil Appeal the conclusion that O.S. No. 6456 of 1993 is not one under Section 6 of the Specific Relief Act is not revisitable.GEvidently, even-after holding thus and upon modifying thejudgment of the High Court, this Court directed only for freshdisposal of the RFA and in that regard the trial court was directedto record the additional evidence of the defendants and to transmitthe same to the High Court along with a report. [Para 25, 26][384-HB-G]

1.9 It is evident that on a careful consideration of theavailable pleadings of the defendants, the High Court held thatthey did not disclose their defence in their written statement andat the same time did not even contend therein that they are inpossession of the suit property. In such circumstances, when thefacts disclose no title in either party, at the relevant time, priorpossession alone decides the right to possession of land in theassumed character of owner against all the world except againstthe rightful owner. In that context, it is worthy to refer to themaxim “Possessio contra omnes valetpraeter eur cui ius sitpossessionis’ (he that hath possession hath right against all buthim that hath the very right)”. The High Court is correct in holdingthe question of maintainability of the suit in the affirmative and infavour of the respondent herein. [Para 30 & 31][386-C-E, F]

1.10 As regards the abatement the question whether thesuit ought to have been held as abated against all the defendantsas contended by the appellants for non-substitution and owing tothe failure to implead all the legal representatives on the deathof the original third defendant. The contention that the suit isbad for non-joinder of necessary parties is also raised based onthe same reason. Hence, these questions are to be consideredjointly. Obviously, the courts below declined to uphold the saidcontentions of the defendants. It is to be noted that the appellantshave also raised a contention that SMS which is an organizationand SVR ought to have been impleaded as parties to the suit andin view of their non impleadment, the suit is bad for non-joinderof necessary parties. When that be the position and when thesubject suit is one based on prior possession the appellants arenot justified in contending that the suit is bad for non-joinder ofSM Sangha and SVR. [Para 32][386-F-H; 387-A, D]

1.11 The appellants have also contended that the suit oughtto have been held as abated against all the defendants owing tonon-substitution of all the legal representatives of the deceaseddefendant No. 3 upon his death. This contention is bereft of anybasis and merits and was rightly repelled by the courts below. Inthat regard it is to be noted that the first appellant and deceased ABC

D

E

F

G

H

Asecond appellant as also their father were all arrayed in the suitas defendants and they were jointly defending the suit. Upon thedeath of original third defendant, the original defendants No.1and 2, who are sons of the original defendant No.3 fully andsubstantially representing the joint interest contested the suitand, thereafter, after suffering an adverse judgment and decreeBin the suit diligently preferred the appeal before the High Courtwhich ultimately culminated in the impugned judgment anddecree. Even thereafter, obviously they are diligently prosecutingthe joint interest, even if the contention of joint interest is takenas correct, by filing the captioned appeal. [Para 33][387-E-H]

C

1.12 The same analogy is applicable in a case where evenin the event of death of one of the defendants, when the estate/interest was being fully and substantially represented in the suitjointly by the other defendants along with deceased defendantand when they are also his legal representatives. In such cases,

Dby reason of non-impleadment of all other legal heirsconsequential to the death of the said defendant, the defendantscould not be heard to contend that the suit should stand abatedon account of non-substitution of all the other legalrepresentatives of the deceased defendant. In this case, it is tobe noted that along with the deceased 3rd defendant the originalEdefendant Nos. 1 and 2 were jointly defending their joint interest.Taking into account the fact that the appellants/ the originaldefendants No. 1 and 2 despite the death of original defendantNo.3 defended the suit and preferred and prosecuted the firstappeal. Upon the death of the second appellant the joint interestFis being fully and substantially taken forward in this proceedingas well by the first appellant along with the substituted legalrepresentatives of the deceased second appellant, there is noreason to disagree with the conclusions and findings of the courtsbelow for rejecting the contention that suit ought to have heldabated owing to the non-substitution of all the legal heirs ofGdeceased third defendant against all defendants. For the samereason, the submission that the suit was bad for non-joinder ofnecessary parties of all his legal heirs/representatives also fails.[Para 36][389-A-E]

1.13 There is yet another reason why the contention thatsuit was bad for non-joinder of necessary parties due to failure tobring on record the legal representatives of the deceased thirddefendant should fail. Relying on Exhibit D-1 it is contended thatpursuant to the agreement for sale of the suit schedule propertyexecuted in favour of the first appellant/ the first defendant jointlyby SMS and SVR its possession was handed over to the firstappellant. Its rejection by the High Court is upheld. However,what is being taken out of the said contention is that based onthe same the appellants cannot raise a ground of non-joinder ofnecessary parties, as the first appellant was arrayed as a party inthe very suit itself and he being the person in favour of whom thesame was allegedly executed. The contention raised based onExhibit D-2 sale deed was also repelled by the High Court and isupheld. The note is taken of the same again solely to stress uponthe position that the case built upon the same can in no way bethe basis for raising a contention of non-joinder of necessary party/parties. This is because the deceased second appellant who wasshown as the vendee thereunder was the original seconddefendant in the suit. For the reasons the contention of non-joinder of necessary parties fails. [Para 37][389-E-H; 390-A-B]

1.14 The courts below are correct in holding that thedefendants did not have a case of ownership over the suit scheduleproperty and such a case sought to bring out based on Exhibit D-2 was repelled by the High Court and the same is upheld. Theyhave also failed to establish any better claim for possession. Thefinding of the High Court that any volume of evidence sansappropriate pleadings would be no avail is the correct expositionof law. [Para 38][389-B-D]

1.15 In such circumstances, there is absolutely nohesitation to hold that the original defendants failed to raisesufficient and appropriate pleadings in the written statement thatthey have better right for possession of the suit properties. Noamount of proof offered without appropriate pleadings would haveany relevance. The courts below have rightly relied on theevidence of PW-5 to hold forceful dispossession of the defendantsfrom ‘B’ schedule property. Nothing is on record to uphold the ABCD

E

FG

H

Asaid finding. As regard the issue whether the impugned judgmentis inflicted with perversity or any patent illegality warrantinginterference in invocation of the power under Article 136 of theConstitution of India. The sound reasons given by the courtsbelow persuade to answer it in the negative. After carefullyconsidering the evidence on record the trial court arrived at theBconclusion that the respondent/ the plaintiff is entitled to get backthe possession of suit schedule property from which he wasdispossessed and even after careful consideration of theadditional evidence recorded and transmitted to the High Courtby the trial court and considering all contentions and aspects theCHigh Court only confirmed the judgment and decree of the trialcourt. When the concurrent findings of the courts below are theoutcome of the rightful consideration and appreciation of materialson record they do not call for any interference. Taking into accountthe fact that the suit was indisputably filed based on priorpermission and illegal dispossession there is no reason to placeDsale deed executed (even if by the owners) in favour of thedeceased second appellant to displace the concurrent findings ofthe courts below on the entitlement of the respondent/the plaintifffor a decree as granted by the trial court and confirmed by theHigh Court. [Para 39, 40, 41][390-G; 391-A-F]

E

Thomson Press (India) Ltd. v. Nanak Builders andInvestors Private Limited (2013) 5 SCC 397 : [2013] 2SCR 74; Gayathri Women’s Welfare Association v.Gowramma And Anr. (2011) 2 SCC 330 : [2011] 2 SCR47; Pandit Ishwardas v. State of Madhya Pradesh AndFOrs. (1979) 4 SCC 163 : [1979] 2 SCR 424; UnitedBank of India, Calcutta v. Abhijit Tea Co. (P) Ltd. &Ors. (2000) 7 SCC 357 : [2000] 3 Suppl. SCR 153;Rukhmanand v. Deenbandh 1971 JLJ SN 159; KrishnaRam Mahale (Dead), By LRs v. Mrs. Shobha VenkatRao (1989) 4 SCC 131; Nair Service Society Ltd v. Rev.GFather K. C. Alexander & Ors. AIR 1968 SC 1165 :[1968] SCR 163; Mustapha Saheb v. Santha Pillai(1900) ILR 23 Mad 179; Bhurey Khan v. Yaseen Khan(Dead) By LRs. And Ors. (1995) 3 Supp. SCC 331; State H

SHIVSHANKARA & ANR. v. H.P. VEDAVYASA CHAR

of Andhra Pradesh through Principal Secretary andOrs. v. Pratap Karan and Ors. (2016) 2 SCC 82 : [2015]12 SCR 702; Duggi Veera Venkata GopalaSatyanarayana v. Sakala Veera Raghavaiah and Anr.(1987) 1 SCC 254 : [1987] 1 SCR 674; Hasmat Rai &Anr. v. Raghunath Prasad (1981) 3 SCC 103 : [1981] 3SCR 605; Union of India v. Ibrahim Uddin and Anr.(2012) 8 SCC 148 : [2012] 8 SCR 35 – referred to.

R.F.V. Heuston, Salmond on the Law of Torts 4 (17thEdn., 1977) – referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 10215of 2011.

From the Judgment and Order dated 09.09.2010 of the High Courtof Karnataka at Bangalore in RFA No. 1966 of 2007.

Ms. Kiran Suri, Sr. Adv., T. S. Shanthi, Narendra Kumar, SanjeevKumar, Advs. for the Appellants.

Narendra Hooda, Sr. Adv., Aljo K. Joseph, Shaurya Lamba,Ms. Shelna K., Ritesh Kumar Chowdhary, Advs. for the Respondent.

A

B

C

D

E

F

G

H

[2023] 6 S.C.R.

AThe Judgment of the Court was delivered by

C. T. RAVIKUMAR, J.

1. The defendant Nos. 1 and 2 in O.S. No.6456 of 1993 on the fileof the Court of XIV Additional City Civil Judge, Bangalore, filed thisappeal under Article 136 of the Constitution of India, calling in questionBthe judgment and decree dated 09.09.2010 passed by the Hon’ble HighCourt of Karnataka at Bengaluru in RFA No.1966 of 2007. They are thesons of the third defendant in the said suit, who died during its pendency.They filed the stated first appeal on being aggrieved and dissatisfiedwith the judgment and decree dated 04.07.2007 in O.S. No.6456 of 1993.CDuring the pendency of the captioned appeal, the second appellantdied and consequently his legal heirs were impleaded as additionalappellants 2.1 to 2.4. Ergo, in this appeal, hereafter the original firstappellant and the impleaded legal heirs of the deceased second appellantare collectively described as ‘appellants’, unless otherwise specificallymentioned. The respondent herein was the plaintiff in the said suit whichDwas filed originally praying thus: - “to grant a judgment for decree of permanent injunctionrestraining the first and second defendants either by themselvesor through anyone on their behalf from interfering in theplaintiffs right, title and interest over and in the suit scheduleEproperty including creating documents alienating the propertyto others and award cost and grant such other relief (s) asdeemed fit and proper under the circumstances to the interestof justice and equity.”

2. The appellants herein filed written statement contending, interFalia, that the subject suit is not maintainable, that there is no prayer forpossession, that the suit was not valued correctly and that the real ownersof the suit property was not arraigned as parties. Subsequently, the plaintiff/respondent herein got amended the plaint by adding paragraph 9 (a),schedules A, B and ‘C’ and also prayers qua them viz., prayer ‘b’.GCompositely, the suit property, which is a house bearing No. B-91, hasbeen described as ‘A schedule’ and out of which a portion measuring35’ x 40’, within the boundaries mentioned, has been described as ‘Bschedule’. ‘C schedule’ is the portion of the premises bearing No. B-91as described therein. To be precise, the prayers in the amended plaintread as under: -H

“(a) a judgment and decree of perpetual injunction againstthe defendants 1 to 3 directing the defendants to restore thepossession of the schedule premises to the plaintiff and not tointerfere in the plaintiffs’ lawful possession and enjoyment ofthe schedule property in any manner whatsoever.

(b) A judgment and decree against the defendants formandatory injunction directing the defendants to restore thepossession of the ‘B’ schedule property, which is marked ‘ABCD’ in the annexed sketch, and there may be decree forpermanent injunction against the defendants for ‘CDEF’portion which is marked as ‘C’ schedule to the plaint andthere may be a decree for the enquiry into the mesne profitswith Order XVIII Rule 12 of CPC, and also there may be adecree for the cost of the suit, with such other relief or reliefsas this Hon’ble Court deems fit in the circumstances of thecase.:

3. Obviously, the defendants did not challenge the order allowingthe amendment of the plaint and also did not file additional writtenstatement after the amendment.

4. The Trial Court framed the following issues based on thepleadings on both sides:

1) Whether the suit is bad for mis-joinder or non-joinder ofnecessary parties?

2) Whether the Court fee paid on the plaint is insufficient?

3) Whether the plaintiff is entitled for possession of the suitschedule premises?

5. Though the plaintiff/respondent herein adduced oral anddocumentary evidence in support of his claims, the defendant therein didnot lead any evidence, at all. The Trial Court, after considering the evidenceand the provisions of law applicable partly decreed the suit as per judgmentdated 04.07.2007, holding that the plaintiff/respondent herein, is entitledto recover possession of suit ‘B’ schedule property from the defendantsand consequently directed the defendants to vacate and deliver suit ‘B’schedule property to the plaintiff (the respondent herein) within twomonths from that day. Further, it was also decreed that the plaintiff wouldbe entitled to recover possession of ‘B’ schedule property from the A

BC

D

E

F

GH

Adefendants by due process of law in case of failure on the part of thedefendants to vacate and deliver the suit ‘B’ schedule property withinthe period stipulated. Furthermore, the defendants were restrained byperpetual injunction from interfering with the peaceful possession andenjoyment of ‘C’ schedule property by the plaintiff.

B6. As noted earlier, defendant No. 3 died during the pendency ofthe suit. The surviving defendants viz., the original defendant Nos.1 and2 challenged the judgment and decree dated 04.07.2007 of the trial Courtbefore the High Court in RFA No.1966 of 2007. In the said first appeal,they filed an application under Order XLI Rule 27 of the Code of CivilProcedure, 1908 (for short, the CPC’) seeking permission to produceCadditional evidence. Virtually, they did not adduce any evidencewhatsoever before the trial court. The respondent herein (the plaintiff)objected to the maintainability of the appeal as the original suit viz.,O.S. No.6456 of 1993 was filed under Section 6 of the Specific ReliefAct, 1963. The High Court dispelled the said objection and as per judgmentDdated 29.10.2007 allowed the application for production of additionalevidence and remanded the matter to the trial Court for fresh disposalafter affording an opportunity to the defendants viz., the first appellantherein and the deceased second appellant to lead additional evidence.The said judgment of the High Court dated 29.10.2007 was challengedby the plaintiff/respondent herein before this Court in SLP (Civil) No.1279Eof 2008 essentially, contending that the said suit being one filed underSection 6 of the Specific Relief Act, the appeal filed before the HighCourt being RFA No.1966 of 2007 was incompetent. Leave was grantedby this Court and the Civil Appeal arising from the SLP viz., Civil AppealNo.5201 of 2009 was dispose of as per judgment dated 03.09.2009 holding Fthat O.S. No.6456 of 1993 was not one under Section 6 of the SpecificRelief Act, as the relief sought for did not fall within its scope. While,virtually, remanding the matter thereunder to the High Court for freshdisposal of the appeal the trial Court was directed to record the evidenceas directed by the High Court and to submit a report thereon to the HighCourt to enable it to dispose of the appeal within the time stipulated.G

7. Before proceeding with the matter further, we think itappropriate to consider the impact of such an order of remand as itwould certainly deconvolute consideration of this appeal. There can beno doubt with respect to the settled position that the Court to which thecase is remanded has to comply with the order of remand and actingH

contrary to the order of remand is contrary to law. In other words, anorder of remand has to be followed in its true spirit. True that in thiscase the High Court, originally, as per judgment dated 29.10.2007remanded the matter to the trial Court for fresh disposal and while doingso, it also directed the trial Court to afford opportunity to the defendantsto lead evidence. But then, the same was modified by this Court and asper the judgment in C.A. No.5201 of 2009 the matter was remanded tothe High Court for fresh disposal of RFA No.1996 of 2007 and thefurther direction to the trial Court was only to record the evidence asdirected by the High Court and to forward it along with report to enablethe High Court to dispose of the appeal taking into account the additionallyrecorded evidence of the defendants as well. Thus, it is evident that thedirection to the trial Court for recording the evidence and submitting italong with report will not efface the evidence already on record or willnot be having the effect of setting aside of the judgment and decreepassed by the trial Court and indisputably, its purpose was only to enablethe High Court to consider RFA No.1996 of 2007 carrying challengeagainst the judgment and decree of the trial Court in O.S. No.6456 of1993, not only based on the evidence already considered by the trialCourt but also based on the additionally recorded evidence of thedefendants based on its judgment dated 29.10.2007.

8. Now, we will proceed with the matter further. In fact, in themeanwhile, pursuant to the order of remand by the High Court the TrialCourt took up the matter and posted it for defendants’ evidence. Theoriginal defendant Nos. 1 and 2 (the first appellant herein and the deceasedsecond appellant) filed an application for amendment of the writtenstatement before the Trial Court. Besides the same, three moreapplications were filed before the Trial Court viz., (1) seeking permissionto file additional written statement; (2) seeking permission to produce 8documents; and (3) to recall PW-1. The Trial Court allowed only theapplications for permission to produce documents and to recall PW-1,by order dated 13.11.2007. The plaintiff/respondent herein challengedthe same before the High Court in WP No. 18328 of 2007 andconsequently, the High Court stayed the said order dated 13.11.2007. Itwas thereafter that Civil Appeal No. 5201 of 2009 was disposed of bythis Court in the manner mentioned above. Pursuant to this Court’s orderdated 03.08.2009 the Trial Court took up the matter and posted it forthe evidence of the defendants. They filed I.A. No. 8 of 2009 seekingpermission to amend the written statement which came to be dismissed AB

C

D

E

F

G

H

Aby the Trial Court. Thereafter, the second defendant filed affidavit inlieu of chief examination and got marked Exhibits D-1 to D-9 and hewas also cross-examined. However, they did not examine any otherwitnesses. Later, the Trial Court transmitted the recorded evidence tothe High Court along with its report.

B8.1 Pursuant to the receipt of the report and recorded evidencethe High Court took up RFA No. 1966 of 2007. The defendants viz., theappellants therein filed three interlocutory applications before the HighCourt as hereunder:-

1) Misc. Civil Application No. 10400/2010 under Order 41 RuleC2 read with Section 151 CPC to raise additional grounds 16Aand l6B in the Appeal.

2) Misc. Civil Application No. 11451/2010 under Order 41 Rule2 read with Section 151 CPC to raise additional grounds 16Cand 16D in the appeal.D

3) Misc. Civil Application No.11452/2010 under Order 6 Rule 17read with 151 CPC for amendment of written statement.

8.2 Misc. Civil Application No. 10400/2010 to raise additionalgrounds was allowed on consent. However, the other two applicationswere vehemently opposed. After hearing the parties on the main appealEas also on the other two applications referred above, the Hon’ble HighCourt formulated the following points for consideration: -

(i) “Whethertheapplication Misc.Civil.No.11452 /2010 filed by the appellants under Order VI Rule 17 readwith Section 151 of the Code of Civil Procedure seekingFamendment of the written statement to incorporateparagraphs 26(b) to 26(e) deserves to be allowed orrejected?”

(ii) Whether the application Misc. Civil No.11451/2010 filedunder 41 Rule 2 r/w Section 151 of the Code of CivilGProcedure by the appellants to raise additional groundsin this appeal as ground No. l6C & 16D is to be allowedor dismissed?”

(iii) Whether the suit as brought is maintainable or not?

(iv) Whether the suit is bad for non-joinder of necessaryHparties?

(v) Whether the judgment and decree passed by the XIV Addl.City Civil Court in O.S. No.6456/1993 dated 4-7-2007 isto be reversed, confirmed or modified?

(vi) What order?”

9. After elaborately considering the contentions, the evidenceadduced by both sides with reference to the rival pleadings, the HighCourt answered the points formulated against the appellants herein andin favour of the respondent herein. Misc. Application Nos. 11451 of2010 and 11452 of 2010, seeking respectively amendment of the writtenstatement and permission to raise additional grounds viz., ground No.16(c) and 16(d), were dismissed. Point No.3 in regard to the maintainabilityof the suit raised by the appellants therein was rejected and suit washeld as maintainable. On the question whether the suit is bad for non-joinder of necessary parties viz. point No.4, it was held in the negative.Based on conclusions and findings on the points formulated it was heldthat the respondent herein/the plaintiff is entitled to the judgment anddecree as decreed by the Trial Court and consequently the appeal wasdismissed with cost and the judgement and decree of the Trial Court wasconfirmed. Hence, this appeal.

10. Heard, Ms. Kiran Suri, learned Senior Counsel for the appellantsand Mr. Narender Hooda, learned Senior Counsel for the respondent.

11. The appellants have raised multiple grounds to assail thejudgment of the High Court. It is contended inter alia that the plaintiff/the respondent herein had failed to establish his possession over plaint‘B’ schedule property. That apart, it is contended that the High Courthad failed to consider the contention that the subject suit was actuallyabated owing to the failure of the respondent herein/the plaintiff to bringon record the legal representatives of Sri Hanumaiah, the third respondentwho breathed his last during the pendency of the subject suit. It is theirfurther contention that Sri Rama @ Ramamurthy, the deceased seconddefendant had purchased the suit property from Sriman Madhwa Sanghawhich is an organisation and Sri Vittal Rao as per sale deed executed on05.10.2000 jointly by the latter and the authorised representative of theformer organisation and therefore, the High Court ought not to haveconfirmed the judgment and decree of the trial Court.

12. We have already taken note of the fact that the Misc. CivilApplication carrying the prayers for amendment of the written statement A

BC

D

E

F

G

H

Aby incorporating paragraphs 26 (b) to 26 (e) and for raising additionalgrounds in the appeal were dismissed by the High Court. The pointsformulated qua those prayers were jointly considered by the High Courtowing to the interlacement of the relevant facts. The avowed purposeof the proposed amendment was obviously to bring in the contention thatthe suit property was purchased by the deceased second appellant fromBSriman Madhwa Sangha and Sri Vittal Rao as per sale deed dated05.10.2000.

13. Evidently, in this case the Trial Court decreed the suit on04.07.2007 and the original defendants 1 and 2 viz., the first appellantand the deceased second appellant in this appeal, preferred appeal viz.,CRFA No.1966 of 2007 challenging the same. In the said appeal, anapplication under Order XLI Rule 27 CPC seeking permission to adduceadditional evidence was filed raising the contention that they were notgiven opportunity to adduce evidence. The said appeal came to bedisposed of by the High Court as per judgment and decree datedD29.10.2007, whereunder the said application was allowed and theappellants therein/the original defendants 1 and 2, were given permissionto lead additional evidence before the Trial Court. Furthermore, anopportunity to cross-examine the said defendants were given to therespondent herein/the plaintiff. A direction was also given to the TrialCourt thereunder to dispose of the case on merits in so far as ‘B’ scheduleEproperty is concerned. It is aggrieved by the said judgment and decreedated 29.10.2007 of the High Court that the respondent herein/the plaintifffiled a Civil Appeal No.5201 of 2009 arising out of SLP (C) No.1279 of2008 before this Court and which came to be disposed of modifying thejudgment and decree of the High Court dated 29.10.2007 by directingFthe Trial Court to record the evidence ‘as directed by the High Court’and transmit the records to the First Appellate Court viz., the High Courtand such other directions as mentioned hereinbefore. The impugnedorder was passed thereafter by the High Court whereby the judgmentand decree of the Trial Court was confirmed. It is thus obvious that there are concurrent findings against the appellants and in favour of theGrespondent herein. Normally, an in-depth consideration is not the rule inan appeal by Special Leave filed under Article 136 of the Constitution ofIndia when the findings are concurrent, in the absence of exceptionalcircumstances. Nonetheless, taking into account the facts that thecaptioned appeal is of the year 2011 and an interim direction to the partiesHto maintain the status quo was passed as early as on 25.02.2011, we are inclined to deal with the conclusions and also the contentions of theparties appropriately.

14. We are not oblivious of the settled position that in dealing withprayers for amendment of the pleadings the Courts should avoid hypertechnical approach. But at the same time, we should keep reminded ofthe position that the same cannot be granted on the mere request throughan application for amendment of the written statement, especially at theappellate stage, where, what is called in question is the judgment anddecree passed by the trial Court and, in other words, after the adversedecree and without a genuine, sustainable reason. In short, thecircumstances attending to the particular case are to be taken into accountto consider whether such a prayer is allowable or not and no doubt, it isallowable only in rarest of rare circumstances. In the case on hand,prayer to amend the plaint was allowed by the Trial Court as per orderdated 01.09.1995. Accordingly, the amendment was carried out by theplaintiff. Indisputably, thereafter, during the span of one year orthereabouts more than eight opportunities were given to the defendantstherein to file additional written statement, if any. Indubitably, the materialson record would reveal that the opportunities were not availed and noadditional written statement was filed. Thereafter, based on the pleadings,issues were framed. Obviously, the defendants did not adduce anyevidence for the reasons best known to them. The suit came to be decreedthereafter as mentioned earlier. We have also discussed in detail all thesubsequent developments which ultimately culminated in the impugnedjudgment dated 09.09.2010 in RFA No.1966 of 2007, including the slightmodification of the judgment and decree of the High Court dated29.10.2007 in terms of the judgment of this Court in Civil Appeal No.5201of 2009. Pursuant to the judgment in the said Civil Appeal by this Court,in terms of the surviving directions of the High Court in its judgmentdated 09.09.2010, which virtually merged with the judgment in C.A.No.5201 of 2009 the second defendant viz., the deceased second appellantherein filed his affidavit in lieu of his examination-in-chief on 16.09.2009and got marked Exhibits D-1 to D-9. He was then cross examined. Noother witnesses were examined on behalf of the defendants.

15. The materials on record and the impugned judgment passedby the High Court would reveal that the original defendants 1 and 2, whowere the appellants before the High Court raised various contentions insupport of their prayers for amendment of the written statement as AB

C

D

E

F

G

H

Aalso for permission to raise additional grounds in the appeal, before theHigh Court and they were also reiterated before us. It is contended thatthe delay in seeking such prayers by itself cannot be a reason to rejectthe prayers made in the stated Misc. Civil Applications and further thatallowing such prayers would not have, in any way, caused prejudice tothe respondent herein/the respondent therein. The chronology of eventsBreferred to hereinbefore in this judgment were evidently weighed withthe High Court while considering the said applications and also answeringthe points formulated qua those prayers. The fact that the defendantswere given opportunities to file additional written statements for not lessthan eight times after the amendment of the plaint, in between the periodC07.03.1996 till the framing of the issues viz. 15.04.1997, that in theinterlocutory application filed in RFA No.1966 of 2007 based on whichthe trial Court was directed to afford opportunity to the defendants toadduce evidence as per judgment and decree passed on 29.10.2007 theysought permission only to adduce evidence, contending that they weredeprived of opportunity to adduce evidence and even at that point ofDtime no permission was sought for amending the written statement, weretaken into consideration by the High Court. Evidently, the High Courtalso observed that if the amendment of written statement was allowedat that stage, it would have necessitated framing of fresh issues andparties were to agitate their rights as if in a de novo trial. That apart, theEHigh Court, inter alia considered the following aspects as well:

That, in the written statement filed by the defendants they did notdisclose their defence and at the same, they also did not plead thereinthat they are in possession of the suit property.

That their plea, essentially attracts the principle of ‘just tertii’,Fwhich expression in Latin means ‘right of a third party’, that the thirdparties, according to them, are Sriman Madhwa Sangha, which is anorganisation and Sri Vittal Rao, that it has come in evidence that thosethird parties filed a petition for evicting the respondent herein/plaintiff asHRC No. 10020 of 1991. The fact is that the defendants had pleadedGthat the ownership of the suit property was with the said third partiesand did not claim possession specifically and it is thereafter that theysought to bring in a plea that pursuant to an agreement for sale enteredinto between those parties viz., the first defendant/the first appellantherein viz., Exhibit D-1 dated 01.03.1993 possession of the suit scheduleproperty was delivered to the first appellant. But the crucial reasonH

assigned by the High Court to dispel them is that the first defendant/thefirst appellant herein did not enter the box and the deceased seconddefendant/the second defendant while being examined as DW-1, duringhis chief examination itself admitted that the respondent herein/the plaintiffwas then in possession of the suit schedule ‘A’ property (which alsoincludes ‘B’ schedule) viz., in and vide paragraph 8 of his affidavit filedin lieu of chief examination. That apart, it was noted that during thecross-examination DW-1 admitted that as on the date of Exhibit D-1,possession of the property was not taken as Sriman Madhwa Sanghaassured to secure possession and hand it over to the first defendant. Inthe circumstances thus revealed from the materials on record and whensuch aspects and evidence were taken into account by the High Court todecline permission to amend the written statement, we do not find anyreason or justification to interfere with it.

16. To fortify our view, we will consider certain other aspects aswell. In the wake of the above-mentioned admission by DW-1, the attemptto bring in new plea by amending the written statement that the seconddefendant (the deceased second appellant) had purchased the suitschedule property as per Exhibit D-2, sale deed dated 05.10.2000 has tobe seen. Since admittedly and indisputably the suit from which the appealarises was one based on possessory title, the legality of Exhibit D-2 saledeed need not be gone into in this appeal and rightly has not been goneinto by the High Court. Evidently, the High Court declined to act uponthe same, in the light of the doctrine of lis pendens. Even if it is takenfor granted that the provisions under Section 52 of the Transfer ofProperty Act are not applicable as such in the case on hand it cannot bedisputed that the principle contained in the provision is applicable in thecase on hand. It is a well-nigh settled position that wherever TP Act isnot applicable, such principle in the said provision of the said Act, whichis based on justice, equity and good conscience is applicable in a givensimilar circumstance, like Court sale etc. Transfer of possession pendentelite will also be transfer of property within the meaning of Section 52and, therefore, the import of Section 52 of the TP Act is that if there isany transfer of right in immovable property during the pendency of a suitsuch transfer will be non est in the eye of law if it will adversely affectthe interest of the other party to the suit in the property concerned. Wemay hasten to add that the effect of Section 52 is that the right of thesuccessful party in the litigation in regard to that property would not beaffected by the alienation, but it does not mean that as against the A

B

C

D

E

F

G

H

Atransferor the transaction is invalid. In the decision in Thomson Press(India) Ltd. v. Nanak Builders and Investors Private Limited[1], thisCourt held the provision of Section 52 pf the Transfer of Property Act,1882, did not indeed annul the conveyance or the transfer otherwise, butto render it subservient to the rights of the parties to a litigation.

BThere can be no doubt with respect to the position that theprohibition by application of the principles of the said doctrine wouldtake its effect with the institution of the suit. Be that as it may, we haveno hesitation to hold that the High Court was perfectly justified in thecircumstances, to come to the conclusion, while considering the applicationfor amendment of the written statement filed at the appellate stage, thatCgranting the same would have, in effect, necessitated framing of freshissues and constrained the parties to agitate their rights as if in a denovo trial. We referred to the aforesaid aspects solely to drive home thepoint that since the subject suit is based only on possessory title viz., onthe basis of prior possession the finding and consequential rejection ofDthe prayer for amendment of written statement to bring in the plea ofpurchase of the property pending the suit by the deceased second appellantcannot be said to be ground resulting in grave injustice.

17. It is also not inappropriate in this context, to refer to anotherindisputable position. The materials on record would reveal that beforeEpassing of the judgment and decree the trial Court, afforded severalopportunities to the defendants to file additional written statement butthey failed not only to file additional written statement but also failed tofile any application for amendment of the written statement before thetrial court during the pendency of original proceedings before it. It is afact that the defendants filed an application for amendment of the writtenFstatement before the trial Court when the matter was sent to the trialCourt pursuant to the order of this Court in CA No. 5201 of 2009 forrecording the evidence solely for the purpose of forwarding the samealong with a report to the High Court to enable the High Court to disposeof RFA No. 1966 of 2007. So also, it is an indisputable fact that evenGwhile filing an application with prayer to grant permission for amendmentof the written statement in RFA No.1996 of 2007 the defendants had notassigned any reasons for delay and no reasonable explanation was givenfor not filing such an application before the trial Court when the originalproceedings were pending before the trial Court. What was assigned as H1 (2013) 5 SCC 397

a reason is that they could not file an additional written statement owingto mistake and by oversight. No other reason was assigned for non-filingof application for amendment of written statement.

18. In the contextual situation, it is relevant to refer to the decisionof this Court in Gayathri Women’s Welfare Association v. GowrammaAnd Anr.[2]wherein the observation in the decision of this Court in PanditIshwardas v. State of Madhya Pradesh And Ors.[3]at paragraph 34which was quoted with agreement, as under: - “34. In Ishwardas, it has been observed as follows (SCC P. 166, Para 5):

5. There is no impediment or bar against an appellate courtpermitting amendment of pleadings so as to enable a partyto raise a new plea. All that is necessary is that the appellatecourt should observe the well-known principles subject towhich amendments of pleadings are usually granted.Naturally one of the circumstances which will be takeninto consideration before an amendment is granted is thedelay in making the application seeking such amendmentand, if made at the appellate stage, the reason why it wasnot sought in the trial court. If the necessary material onwhich the plea arising from the amendment may be decidedis already there, the amendment may be more readilygranted than otherwise. But, there is no prohibition againstan appellate court permitting an amendment at the appellatestage merely because the necessary material is not alreadybefore the court.”

19. After quoting the same it was observed in Gayathri Women’sWelfare Association’s case (supra) thus: - “These observations clearly indicate that one of thecircumstances which will be taken into consideration beforean amendment is granted is the delay in making theapplication seeking such amendment and, if made at theappellate sage, the reason why it was not sought in the trialcourt.”

2 (2011) 2 SCC 330

3 (1979) 4 SCC 163

A

B

F

G

H

A20. It is to be noted that in the case on hand also as stated earlier,there was considerable delay in seeking amendment of the writtenstatement or filing additional written statement and no sustainable reasonwas assigned as to why such prayers were not sought in the trial courtwhile the original proceedings were pending before it. It is also relevantto note that such prayers were also not made before the High CourtBwhen the High Court initially disposed of RFA No. 1966 of 2007 as perjudgment dated 29.10.2007 and also before this Court in CA No. 5201 of2009 directed against the said judgment.

21. In the afore-mentioned contextual situation, the impact andeffect of the order of remand passed by this Court in CA No.5201 ofC2009, assumes great relevance. We have considered and come to aconclusion on this aspect as can be seen from paragraph 5 (supra). Ifthe judgment of the High Court in RFA No.1996 of 2007 was not modifiedby this Court as per judgment in CA No.52001 of 2009 it would have hadthe effect of reviving the suit in full and in such eventuality, the suitDshould have been deemed to be pending. In that context, it is apposite torefer to paragraph 16 of the decision of this Court in United Bank ofIndia, Calcutta v. Abhijit Tea Co. (P) Ltd. & Ors.[4], which reads thus:- “16. But, it is now well settled that an order of remand by theappellate court to the trial court which had disposed of theEsuit revives the suit in full except as to matters, if any, decidedfinally by the appellate court. Once the suit is revived, it must,in the eye of the law, be deemed to be pending — from thebeginning when it was instituted. The judgment disposing ofthe suit passed by the Single Judge which is set aside getseffaced altogether and the continuity of the suit in the trialFcourt is restored, as a matter of law. The suit cannot be treatedas one freshly instituted on the date of the remand order.Otherwise serious questions as to limitation would arise. Infact, if any evidence was recorded before its earlier disposal,it would be evidence in the remanded suit and if anyGinterlocutory orders were passed earlier, they would revive.In the case of a remand, it is as if the suit was never disposedof (subject to any adjudication which has become final, inthe appellate judgment). The position could have been different if the appeal was disposed of once and for all and the suitwas not remanded.”

22. In view of the subsequent judgment of this Court in Civil AppealNo.5201 of 2009, dated 03.09.2009, directed against the order of remandin RFA No.1996 of 2007, the judgment of the High Court got merged init. As per the same, the scope of proceedings before the trial Court wasconfined only to record the additional evidence of defendants and totransmit the same to the High Court so as to enable the High Court todispose of RFA No.1996 of 2007 afresh. In short, in view of the settledposition, the trial Court could not have expanded the scope of theproceedings before it contrary to the order of remand and hence, the trialCourt was perfectly correct in rejecting the application for amending thewritten statement. In this context, the direction of the High Court ofMadhya Pradesh in Rukhmanand v. Deenbandh[5], assumes relevance.It reads thus:- “It is settled law that when a suit is remanded for a decisionafresh with certain specific directions, the jurisdiction of thetrial Court after remand depends upon the terms of the orderof remand and the trial Court cannot either consider mattersother than those specified in the remand order, or enter intoquestions falling outside its limit. There was, therefore, nojurisdiction in the learned trial Judge to allow an amendmentof the pleadings which was outside the scope of the remandorder.”

23. In the totality of the circumstances, especially taking intoaccount the relevant reasons assigned by the High Court for disallowingthe prayer for amendment of the written statement and taking note ofthe delay and the failure to offer any reason therefor and the reasonsmentioned hereinbefore we see no reason at all to hold any perversity orillegality with the rejection of the prayer for amendment of the writtenstatement.

24. We have noted the points of agreement in the judgments ofthe courts below. On the questions as to maintainability of the suit, whetherthe suit is bad for non- joinder of necessary parties as also whether thesuit ought to have been held as abated against all the defendants for non-substitution of all the legal heirs on the death of the original third AB

C

D

E

F

G

H

Adefendant, the courts below returned concurrent findings against theappellants.

25. We are at a loss to understand as to how the plea regardingthe maintainability of the suit arise for consideration. The contention ofthe appellants is that it was filed under section 6 of the Specific ReliefBAct and while disposing of C.A. No. 5201 of 2009 this court held againstthe respondent herein/ the plaintiff that the suit is not one under Section6 of the Specific Relief Act. Ergo, according to the appellants, the reliefclaimed for possession by the plaintiff/the respondent herein was notentertainable as he being a person claiming only possessory title and theoriginal defendant No. 2/ the deceased appellant No. 2 being the lawfulCowner of the suit schedule property. Though the contentions appear tobe attractive and acceptable at the first blush the fact is that they areabsolutely untenable and rightly held against them, in view of the materialson record.

26. It is true that the respondent herein/ the plaintiff had a caseDthat O.S. No. 6456 of 1993 filed under Section 6 of the Specific ReliefAct and even after, the judgment in C.A. No. 5201 of 2009 he seems tohave attempted to resurrect the said question. But we are entirely inagreement with the High Court that the question whether the suit is oneunder Section 6 of the Specific Relief Act is not now available forEconsideration as it was held otherwise by this court in the judgment inC.A. No. 5201 of 2009 and as such it had attained finality. On the faceof judgment in C.A. No. 5201 of 2009 the conclusion that O.S. No.6456 of 1993 is not one under Section 6 of the Specific Relief Act is notrevisitable. Evidently, even-after holding thus and upon modifying thejudgment of the High Court dated 29.10.2007 this Court directed onlyFfor fresh disposal of RFA No. 1996 of 2007 and in that regard the trialCourt was directed to record the additional evidence of the defendantsand to transmit the same to the High Court along with a report.

27. Indisputably, the case of the respondent herein/the plaintiff isbased on prior possession and illegal dispossession by the respondents.GDuring his cross- examination also PW-1 the respondent herein deposedthat he is not claiming a right of ownership in the subject suit. Therefore,the question is how the appellants can claim that such a suit is notmaintainable. It is also a fact that after carefully scanning the pleadingsand evidence of the defendants, the High Court, as per the impugnedHjudgment, held that what is raised by the defendants to resist the case of

the plaintiff / the respondent herein is nothing but a plea that attracts theprinciple of “jus tertii”, which in Latin means ‘right of a third party.’ Infact, it is a plea against a claim of interest in property, raised in defencethat a third party has a better right than the claimant. In this context, itis relevant to refer to R.F.V. Heuston, Salmond on the Law of Torts 4(17th Edn.,1977), in which it was observed that no defendant in anaction of trespass can plead the ‘jus tertii’ that the right of possessionoutstanding in some third person. Obviously, to buttress their contentionthat the suit is maintainable, based on the contention of the defendantsthat the right of possession is outstanding in some third person that attractthe principal of ‘jus tertii’ and that they, therefore, are not justified inchallenging the maintainability of the suit the defendant relied upon thedecision of this Court in Krishna Ram Mahale (Dead), By LRs v.Mrs. Shobha Venkat Rao[6]. The impugned judgment would reveal thatbased on the exposition of law in the aforesaid decision and taking noteof the factual position, the High Court has come to the conclusion thatthe challenge made by the defendants regarding the maintainability ofthe suit is untenable. In that context, the High Court has also consideredthe decision of this Court in Nair Service Society Ltd v. Rev. Father K.C. Alexander & Ors.[7]In the said decision, this Court held that it couldnot be said that after a period of six months is over, a suit based onprior possession alone, is not possible and it in so far as relevant readsthus: - “15. We agree as to a part of the reasoning but with respectwe cannot subscribe to the view that after the period of 6months is over a suit based on prior possession alone, is notpossible. Section 8 of the Specific Relief Act, 1963 does notlimit the kinds of suit but only lays down that the procedurelaid down by the Code of Civil Procedure must be followed.This is very different from saying that a suit based onpossession alone is incompetent after the expiry of six months.Under Section 9 of the Civil Procedure Code, it is all suits ofcivil nature are triable except suits of which their cognizancewould either expressly or impliedly barred.”

6 (1989) 4 SCC 131

7 AIR 1968 SC 1165

AB

C

D

E

F

G

A28. In Nair Service Society Ltd. case (supra) this Court quotedthe following observations made in Mustapha Saheb v. Santha Pillai[8],-with agreement:

“…..that a party ousted by a person who has no better rightis, with reference to the person so ousting, entitled to recoverBby virtue of the possession he had held before the ouster eventhough that “possession was without any title.”

29. In view of the aforesaid decisions and the factual positionobtained in this case, in our opinion, the decisions sought to be relied onby the appellants are really of no assistance.

C

30. It is evident that on a careful consideration of the availablepleadings of the defendants, the High Court held that they did not disclosetheir defence in their written statement and at the same time did noteven contend therein that they are in possession of the suit property.According to us, in such circumstances, when the facts disclose no titleDin either party, at the relevant time, prior possession alone decides theright to possession of land in the assumed character of owner against allthe world except against the rightful owner. In that context, it is worthyto refer to the maxim ‘Possessio contra omnes valet praeter eur cuiius sit possessionis’ (he that hath possession hath right against all buthim that hath the very right)”.

E

31. In the light of the factual position obtained in this case andlegal position settled in the decisions referred supra we are of the firmview that the High Court is correct in holding the question ofmaintainability of the suit in the affirmative and in favour of the respondentherein.F

32. Now, we will consider the question whether the suit ought tohave been held as abated against all the defendants as contended by theappellants for non- substitution and owing to the failure to implead all thelegal representatives on the death of the original third defendant-Hanumaiah. The contention that the suit is bad for non-joinder ofGnecessary parties is also raised based on the same reason. Hence, thesequestions are to be considered jointly. Obviously, the Courts below declinedto uphold the said contentions of the defendants. It is to be noted that theappellants have also raised a contention that Sriman Madhwa Sangha H8 (1900) ILR 23 Mad 179

which is an organization and Sri Vittal Rao ought to have been impleadedas parties to the suit and in view of their non impleadment, the suit is badfor non-joinder of necessary parties. While considering the same, thefact that the aforesaid Sriman Madhwa Sangha and Sri Vittal Rao fileda petition for eviction against the respondent herein as HRC No.10020of 1991 wherein it was stated that the first respondent therein (therespondent herein) is in occupation of a portion of the schedule propertyand he has illegally and unauthorizedly sub-let the other two portions ofthe property to the second and third respondents therein, namely Shri B.Ramachandra Rao and Sh. N. Murlidhara Rao on monthly rental ofRs.400/- and Rs.300/- respectively and has been collecting the rentsfrom them, rightly taken into consideration by the High Court, requiresto be borne in mind. That apart, the fact that while being examined asDW-1 the deceased second appellant herein had deposed that nopossession was taken after execution of Exhibit D-1 agreement for saledated 01.03.1993 as Sriman Madhwa Sangha had assured to securepossession and hand over the possession to the first appellant herein/thefirst defendant. When that be the position and when the subject suit isone based on prior possession the appellants herein are not justified incontending that the suit is bad for non-joinder of Sriman Madhwa Sanghaand Sri Vittal Rao.

33. As noticed earlier, the appellants have also contended that thesuit ought to have been held as abated against all the defendants owingto non- substitution of all the legal representatives of the deceaseddefendant No. 3 upon his death. This contention is bereft of any basisand merits and was rightly repelled by the courts below. In that regardit is to be noted that the first appellant and deceased second appellant asalso their father Hanumaiah were all arrayed in the suit as defendantsand they were jointly defending the suit. Upon the death of original thirddefendant viz., Hanumaiah the original defendants No.1 and 2, who aresons of the original defendant No.3 fully and substantially representingthe joint interest contested the suit and, thereafter, after suffering anadverse judgment and decree in the suit diligently preferred the appealbefore the High Court which ultimately culminated in the impugnedjudgment and decree. Even thereafter, obviously they are diligentlyprosecuting the joint interest, even if the contention of joint interest istaken as correct, by filing the captioned appeal.

34. In the contextual situation the following decisions assumesrelevance. The decision in Bhurey Khan v. Yaseen Khan (Dead) By ABC

D

E

F

G

H

ALRs. And Ors.[9]was referred to in the impugned judgment by the HighCourt to reject the aforesaid contention of the appellants therein viz.original defendant Nos. 1 and 2. In paragraph 4 of the decision in BhureyKhan’s case, this Court held thus:-

“……the estate of the deceased was thus sufficientlyBrepresented. If the appellant would not have filed anyapplication to bring on record the daughters and the widowof the deceased the appeal would not have abated underOrder 22 Rule 4 of the Code of Civil Procedure as held bythis Court in Mahabir Prasad v. Jage Ram [(1971) 1 SCC 265: AIR 1971 SC 742] . The position, in our opinion, would notCbe worse where an application was made for bringing onrecord other legal representatives but that was dismissed forone or the other reason. Since the estate of the deceasedwas represented the appeal could not have been abated.”

35. In the decision in State of Andhra Pradesh through PrincipalDSecretary and Ors. v. Pratap Karan and Ors.[10], this Court held:- “40. In the instant case, the plaintiffs joined together andfiled the suit for rectification of the revenue record byincorporating their names as the owners and possessors inrespect of the suit land on the ground inter alia that after theEdeath of their predecessor-in-title, who was admittedly thepattadar and khatadar, the plaintiffs succeeded the estate assharers being the sons of khatadar. Indisputably, therefore,all the plaintiffs had equal shares in the suit property left bytheir predecessors. Hence, in the event of death of any of theFplaintiffs, the estate is fully and substantially represented bythe other sharers as owners of the suit property. Therefore,by reason of non- substitution of the legal representative(s)of the deceased plaintiffs, who died during the pendency ofthe appeal in the High Court, entire appeal shall not standabated. Remaining sharers, having definite shares in the estateGof the deceased, shall be entitled to proceed with the appealwithout the appeal having been abated. We, therefore, do notfind any reason to agree with the submission made by thelearned counsel appearing for the appellants.”

9 1995 Supp. (3) SCC 331H10 (2016) 2 SCC 82

36. We are of the considered view that the same analogy isapplicable in a case where even in the event of death of one of thedefendants, when the estate/interest was being fully and substantiallyrepresented in the suit jointly by the other defendants along with deceaseddefendant and when they are also his legal representatives. In suchcases, by reason of non-impleadment of all other legal heirs consequentialto the death of the said defendant, the defendants could not be heard tocontend that the suit should stand abated on account of non-substitutionof all the other legal representatives of the deceased defendant. In thiscase, it is to be noted that along with the deceased 3[rd] defendant theoriginal defendant Nos. 1 and 2 were jointly defending their joint interest.Hence, applying the ratio of the aforesaid decision and taking into accountthe fact that the appellants/ the original defendants No. 1 and 2 despitethe death of original defendant No.3 defended the suit and preferred andprosecuted the first appeal. Upon the death of the second appellant thejoint interest is being fully and substantially taken forward in thisproceeding as well by the first appellant along with the substituted legalrepresentatives of the deceased second appellant, we do not find anyreason to disagree with the conclusions and findings of the courts belowfor rejecting the contention that suit ought to have held abated owing tothe non- substitution of all the legal heirs of deceased third defendantagainst all defendants. For the same reason, the contention that the suitwas bad for non-joinder of necessary parties of all his legal heirs/representatives also has to fail.

37. There is yet another reason why the contention that suit wasbad for non-joinder of necessary parties due to failure to bring on recordthe legal representatives of the deceased third defendant Sri. Hanumaiahshould fail. We have already noted the case which the defendants soughtto bring in, without taking up necessary pleadings in the written statementfiled in the suit. Relying on Exhibit D-1 it is contended that pursuant tothe agreement for sale of the suit schedule property executed in favourof the first appellant herein/the first defendant jointly by Sriman MadhwaSangha and Sri Vittal Rao its possession was handed over to the firstappellant herein. We have already upheld its rejection by the High Court.However, what we are taking out of the said contention is that based onthe same the appellants cannot raise a ground of non-joinder of necessaryparties, as stated above, as the first appellant was arrayed as a party inthe very suit itself and he being the person in favour of whom the samewas allegedly executed. The contention raised based on Exhibit D-2

AB

C

D

E

F

G

H

Asale deed was also repelled by the High Court and we have also upheldthe same. We took note of the same again solely to stress upon theposition that the case built upon the same can in no way be the basis forraising a contention of non-joinder of necessary party/parties. This isbecause the deceased second appellant who was shown as the vendeethereunder was the original second defendant in the suit. For the reasonsBabove also the contention of non-joinder of necessary parties must fail.

38. We have already found that the courts below are correct inholding that the defendants did not have a case of ownership over thesuit schedule property and such a case sought to bring out based onExhibit D-2 was repelled by the High Court and we have upheld theCsame. They have also failed to establish any better claim for possession.The finding of the High Court that any volume of evidence sans appropriatepleadings would be no avail is the correct exposition of law. In the decisionin Duggi Veera Venkata Gopala Satyanarayana v. Sakala VeeraRaghavaiah and Anr.[11], this Court agreed with the observation madeDin the earlier decision in Hasmat Rai & Anr. v. Raghunath Prasad[12]that any amount of proof offered without pleadings is generally of norelevance. In Duggi Veera Venkata Gopala Satyanarayana (supra)with respect to the aforesaid observations in Hasmat Rai & Anr. (supra)this Court held, ‘we respectfully agree with the above statement of lawand reiterate the same.’ Further, it is also relevant to refer to paragraphE85.6 of the decision in Union of India v. Ibrahim Uddin and Anr.[13],which reads thus:- “85.6. The court cannot travel beyond the pleadings as noparty can lead the evidence on an issue/point not raised inthe pleadings and in case, such evidence has been adducedFor a finding of fact has been recorded by the court, it is just tobe ignored. Though it may be a different case where in spiteof specific pleadings, a particular issue is not framed and theparties having full knowledge of the issue in controversy leadthe evidence and the court records a finding on it.”G39. In such circumstances, we have absolutely no hesitation tohold that the original defendants failed to raise sufficient and appropriatepleadings in the written statement that they have better right for 11 (1987) 1 SCC 25412 (1981) 3 SCC 103H13 (2012) 8 SCC 148

possession of the suit properties. No amount of proof offered withoutappropriate pleadings would have any relevance. The Courts below haverightly relied on the evidence of PW-5 to hold forceful dispossession ofthe defendants from ‘B’ schedule property. Nothing is on record to upholdthe said finding.

40. After considering and answering the questions, mentioned asabove, we bestowed our anxious consideration to find whether theimpugned judgment is inflicted with perversity or any patent illegalitywarranting interference in invocation of the power under Article 136 ofthe Constitution of India. The sound reasons given by the courts belowpersuade us to answer it in the negative. After carefully considering theevidence on record the Trial Court arrived at the conclusion that therespondent herein/the plaintiff is entitled to get back the possession ofsuit schedule property from which he was dispossessed and even aftercareful consideration of the additional evidence recorded and transmittedto the High Court by the trial court and considering all contentions andaspects with reference to plethora of decisions the High Court onlyconfirmed the judgment and decree of the trial court. As observed earlier,when the concurrent findings of the courts below are the outcome ofthe rightful consideration and appreciation of materials on record theydo not call for any interference.

41. Thus, taking into account the fact that the suit was indisputablyfiled based on prior permission and illegal dispossession we do not findany reason to place Exhibit D-2 sale deed executed (even if by theowners) in favour of the deceased second appellant to displace theconcurrent findings of the courts below on the entitlement of therespondent herein/the plaintiff for a decree as granted by the trial courtand confirmed the High Court. In the said situation, this appeal has tofail. Consequently, it is dismissed. In the circumstances, there will beno order as to costs.

Nidhi Jain(Assisted by : Rakhi, LCRA)

Appeal dismissed.

A

B

C

D

EF

G

H