KRISHNAMURTHY S SETLUR Vs. O V NARASIMHA SETTY

JUDGEMENT

(1.) This civil appeal arises out of judgment and decree rendered by Karnataka High Court on 22.3.1999 filed under section 96 CPC against judgment and decree dated 11.10.1996 passed in O.S. No. 3656/81 on the file of City Civil Judge, Bangalore, decreeing the suit for declaration. By the impugned judgment, the High Court has set aside the judgment and decree dated 11.10.1996. Hence this civil appeal has been filed by the LRs. of deceased Krishnamurthy S. Setlur (original plaintiff).

(2.) The facts giving rise to this civil appeal are as follows. One Kalyana Sundram Iyer was the owner of the suit properties. H.R. Narayana Iyengar (represented by his LRs.) claimed to have purchased the suit properties from Iyer under sale deed dated 10.7.1942. At the relevant time, one Shyamala Raju was the cultivating tenant. Iyengar (since deceased) claimed that he had terminated the tenancy in 1948. On termination of the tenancy disputes arose between Iyengar and Shyamala Raju. Consequently, Suit No.79/49 came to be instituted by Iyengar in the court of Second Munsiff, Bangalore. The suit was instituted by Iyengar against K.S. Setlur and Shyamala Raju stating that they had unauthorisedly disturbed his possession. Suit No. 79/49 was for permanent injunction restraining the defendants from interfering with the possession of Iyengar (plaintiff). In his defence Raju stated that he was in possession for eight years; that he continued to be in possession; that Iyengar was collecting rents arising from the suit properties as a constituted attorney of K.S. Setlur; that on termination of the Power of Attorney, he paid rent to K.S. Setlur and, therefore, he was in possession of the suit lands as a tenant under K.S. Setlur and not under Iyengar (plaintiff). He (Raju) in his written statement stated that he continued to remain in possession till 28.8.1950 (see p. 78 of the SLP Paper Book). According to Iyengar, defendant No. 2 (Shyamala Raju) was his tenant who turned hostile when he terminated the tenancy. According to Iyengar, there was collusion between Shyamala Raju and K.S. Setlur to defeat his rights. In the said suit, K.S. Setlur contended that he was the real owner who had appointed Iyengar as his constituted attorney to collect rent and profits. It was contended that the sale deed executed by Kalyana Sundram Iyer was a benami transaction. He further alleged that in 1946 he had cancelled the Power of Attorney in favour of Iyengar. He further alleged that after 1946, Shyamala Raju had considered him as the landlord. Rent was paid to him by Shyamala Raju. Raju had attorned in favour of K.S. Setlur. Lease deeds were executed by Shyamala Raju in favour of K.S. Setlur. By judgment dated 28.2.1951, delivered by the Munsiff Court in Suit No. 79/49, it was held that the factum of Shyamala Raju being in possession of the suit lands till 28.8.1950 stood proved, therefore, it was held that Raju was in possession of the suit lands from 1946 onwards. It was further observed by the trial court that the disputed suit lands were not in de facto possession of Iyengar. The trial court relied upon the revenue records of 1947-48 showing cultivation of the lands by Shyamala Raju (see p. 91 of the SLP Paper Book). The trial court did not believe the plaintiff (Iyengar) to say that he had entered into possession in 1947. However, the trial court also observed that the plaintiff had a conveyance in his favour from Kalyana Sundram Iyer but the suit was for permanent injunction and since the plaintiff was not in actual possession it was not possible to grant injunction restraining Shyamala Raju from entering the lands. The trial court further held that Shyamala Raju as a tenant had attorned in favour of K.S. Setlur. The trial court, however, held that it was not in a position to give a clear-cut finding as to whether Shyamala Raju was the tenant of Iyengar or of K.S. Setlur. In this connection we find on page 95 of the SLP Paper Book the conclusion of the trial court which states that, "the only inference that can be drawn is that the second defendant (Shyamala Raju) is in possession and cultivation of the suit disputed lands; whether he was tenant under the plaintiff (Iyengar) or the first defendant (K.S. Setlur) is not established." In the said judgment, the trial court further observed that since the plaintiff had instituted a suit for permanent injunction it was not necessary for the court to go into the question of the benami nature of the sale deed executed by Kalyana Sundram Iyer in favour of the plaintiff as well as the real ownership of the suit lands. According to the trial court, it was not necessary to go into the question of ownership except to the limited extent, namely, attornment of the tenancy by Shyamala Raju in favour of K.S. Setlur and not in favour of Iyenger (plaintiff). According to the trial court, since Shyamala Raju (defendant No. 2) had continued to remain in possession till he was prevented by an order of interim injunction which stood subsequently vacated and since the plaintiff had failed to prove his actual possession, the plaintiff was not entitled to an order of injunction.The question of title was not gone into by the trial court. The question of title deed being benami was not gone into by the trial court. In conclusion, the trial court observed that it was open to the plaintiff to file suit on title and for possession. The trial court observed that grant of injunction is a matter of discretion. The court was, therefore, not inclined to grant permanent injunction in favour of the plaintiff. At this stage, we may point out that the litigation has a chequered history. We need not go into the various stages of this litigation except to state that ultimately by judgment dated 14.12.1961 delivered by Additional Civil Judge, Bangalore vide Regular Appeal No. 70/51 the suit filed by Iyengar (plaintiff-appellant) ultimately stood dismissed. The judgment of the trial court dated 28.2.1951 stood affirmed. The termination of tenancy of Shyamala Raju was proved but there was no evidence that the plaintiff had obtained actual possession from the ex-tenant on termination of tenancy. In the result, the appeal stood dismissed on the ground that the appellant (Iyengar) was not in possession of the suit lands on the date of filing of Suit No. 79/49 (see p. 118 of the SLP Paper Book). The appeal of Iyengar stood dismissed on 14.12.1961.

(3.) Coming to the second round of litigation, it may be stated that after Shyamala Raju attorned in favour of K.S. Setlur, differences arose which led to litigation between K.S. Setlur on one hand and Shyamala Raju on the other hand. In the said litigation, Iyengar was not a party. In the said litigation LRs. of Iyengar were not made party-defendants. Iyenger died on 6.12.1959. As stated above, disputes arose between K.S. Setlur and Shyamala Raju around 1962. K.S. Setlur instituted Suit No. 89/63 for declaration of his title and for permanent injunction. In the said suit K.S. Setlur contended, that Iyengar was his constituted attorney; that Iyengar had purchased the suit lands from Kalyana Sundram Iyer in 1942; that he had terminated the Power of Attorney in favour of Iyengar in 1946; that Shyamala Raju had attorned the tenancy in his favour in 1946 and that on 23.4.1962 Shyamala Raju had surrendered the suit lands to K.S. Setlur. In the said suit, K.S. Setlur alleged, that Shyamala Raju was his ex-tenant; that Raju had surrendered his possession on 23.4.1962, and after surrender he has been interfering with his possession. It appears that Shyamala Raju had purported to sell a portion of the suit lands which led Setlur to file Suit No. 89/63 saying that Shyamala Raju had no right to convey the suit lands or any portion thereof. In the said suit, originally one of the issues framed by the trial court was whether K.S. Setlur was the owner of the suit lands and whether he was in possession of the suit lands. Later on in appeal, the question framed was whether K.S. Setlur had proved his possessory title to the suit lands. This question was answered in favour of K.S. Setlur in the affirmative in RSA No. 545/73, which appeal stood disposed of by the High Court vide judgment dated 14.8.1981 arising from Suit No. 89/63 filed by K.S. Setlur. It is this judgment dated 14.8.1981 of the High Court which constitutes the basis of the judgment of the trial court in the present proceedings. Be that as it may, the High Court in its judgment in RSA No. 545/73 held that since Shyamala Raju had surrendered the suit lands in favour of K.S. Setlur in 1962 it was obvious that K.S. Setlur was put in possession through the intervention of the Tahsildar (see p. 126 of the SLP Paper Book). According to the High Court, the tenancy of Shyamala Raju stood terminated in 1946, that Setlur has been in possession since 1946, that Suit No. 89/63 was filed by Setlur against Shyamala Raju in February, 1963 and, therefore, when Setlur had been in possession for more than 12 years since 1946 he had the possessory title vested in him and his possession had to be protected against the whole world except the true owner and, therefore, according to the High Court, the trial court should not have dismissed the suit of Setlur against Shyamala Raju bearing No. 89/63 but should have given a declaration that Setlur had the possessory title for more than 12 years and the trial court should have given declaration to that effect. Accordingly, the High Court vide its judgment dated 14.8.1981 overruled the decision of the trial court dismissing the suit filed by Setlur for declaration of his title. Accordingly in the second round of litigation Setlur succeeded in obtaining a declaration to the effect that he had possessory title in him. At this stage, it may be noted that Iyengar (since deceased) never instituted a suit for declaration of title.