Supreme Court of India
SHIVSHANKARA & ANRversusH.P. VEDAVYASA CHAR
- Citation
- 2023 INSC 318
- Decided
- 29 March 2023
- Disposal
- Dismissed
Holding
A suit based on prior possession does not abate on the death of a defendant if the remaining parties fully represent the estate, and amendment of pleadings at the appellate stage is allowed only in exceptional cases; therefore the appeal is dismissed.
Summary
The appeal concerned a suit for injunction and possession of a house, filed by the plaintiff under a claim of prior possession. During the suit one defendant died, and the remaining defendants, who were also his legal representatives, continued to defend the suit. The appellants argued that the suit should abate for non‑joinder of all legal heirs and that the written statement could be amended at the appellate stage. The Supreme Court held that the death of a defendant does not abate a suit when the estate is fully represented by the remaining parties, and that amendment of pleadings at the appellate stage is permissible only in rare circumstances; consequently the High Court’s refusal to allow amendment was proper. The Court also affirmed that the suit was maintainable, not governed by Section 6 of the Specific Relief Act, and that the doctrine of lis pendens under Section 52 of the Transfer of Property Act applied. The appeal was dismissed.
Issues considered
- The suit’s maintainability and whether it is a suit under Section 6 of the Specific Relief Act
- Whether the death of a defendant and non‑joinder of all his legal heirs abates the suit
- Whether the High Court could lawfully refuse amendment of the written statement at the appellate stage
- The applicability of Section 52 of the Transfer of Property Act (lis pendens) to the dispute
Legislation cited
- Code of Civil Procedure, 1908s. Order 22 Rule 4, s. Order 41 Rule 2, s. Order 6 Rule 17, s. Order XLI Rule 27
- Specific Relief Act, 1963s. 6
- Transfer of Property Act, 1882s. 52
Subjects
abatement of suitnon‑joinder of necessary partiesamendment of pleadingsSpecific Relief ActTransfer of Property Actlis pendensprior possessioncivil appealremand order
Judgment
[2023] 6 S.C.R. 359 359
SHIVSHANKARA & ANR. A
v.
H.P. VEDAVYASA CHAR
(Civil Appeal No. 10215 of 2011)
MARCH 29, 2023 B
[B. R. GAVAI AND C. T. RAVIKUMAR, JJ.]
Abatement: Abatement of suit – Non-joinder of necessary
parties – Non-impleadment of all other legal heirs of deceased
defendant – Effect of – Held: In the event of death of one of the
C
defendants, when the estate/interest was being fully and substantially
represented in the suit jointly by the other defendants along with
deceased defendant and when they are also his legal representatives,
by reason of non-impleadment of all other legal heirs consequential
to the death of the said defendant, the suit would not abate – Such
suit not bad for non-joinder of necessary parties of all his legal D
heirs/representatives.
Amendment: Amendment of pleadings at appellate stage –
Permissibility of – Held: While dealing with such prayers, the Courts
should avoid hyper technical approach – Circumstances attending
to the particular case are to be taken into account to allow or not to E
allow such prayer – It is allowable only in rarest of rare
circumstances – It cannot be granted on the mere request, especially
at the appellate stage – On facts, trial court allowed the amendment
of the plaint, and the defendants were given multiple opportunities
to file an additional written statement, which they did not avail and
F
the suit was decreed – Subsequent developments culminated in the
impugned judgment wherein the High Court declined permission to
amend the written statement to the defendants – High Court
observed that grant of amendment of written statement, if at that
stage would have necessitated framing of fresh issues and de novo
trial – Thus, no perversity or illegality with the rejection of the prayer G
for amendment of the written statement.
Suit: Suit for possession, based on possessory title – Facts
disclosing no title in either party at the relevant time – Prior
possession – Relevance of – Held: In such circumstances, when the
facts disclose no title in either party, at the relevant time, prior H
359
360 SUPREME COURT REPORTS [2023] 6 S.C.R.
A possession alone decides the right to possession of land in the
assumed character of owner against all the world except against
the rightful owner.
Suit: Suit for injunction and for recovery of possession by
respondent against the appellants – Maintainability of – Held: On
B a careful consideration of the available pleadings of the appellants,
the High Court held that they did not disclose their defence in their
written statement and at the same time did not even contend that
they are in possession of the suit property – Thus, the High Court
correct in holding the question of maintainability of the suit in the
affirmative and in favour of the respondent – Trial court after
C carefully considering the evidence on record held that the respondent
is entitled to get back the possession of suit schedule property from
which he was dispossessed – After careful consideration of the
additional evidence recorded and transmitted to the High Court by
the trial court and considering all contentions and aspects, the High
D Court only confirmed the judgment and decree of the trial court –
Thus, when the concurrent findings of the courts below are the
outcome of the rightful consideration and appreciation of materials
on record, they do not call for any interference.
Transfer of Property Act, 1882: s. 52 – Transfer of property
E pending suit relating thereto – Doctrine of Lis pendens – Held:
Import of s. 52 is that if there is any transfer of right in immovable
property during the pendency of a suit such transfer will be non est
in the eye of law if it will adversely affect the interest of the other
party to the suit in the property concerned – Wherever TP Act is not
applicable, such principle in the said provision of the Act, based on
F justice, equity and good conscience is applicable in a given similar
circumstance, like Court sale etc – On facts, the suit from which the
appeal arises was one based on possessory title, the legality of sale
deed need not be gone into in this appeal and rightly has not been
gone into by the High Court – High Court declined to act upon the
G same, 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 by
the defendants – Original defendants failed to raise sufficient and
appropriate pleadings in the written statement that they have better
H right for possession of the suit properties – No amount of proof
SHIVSHANKARA & ANR. v. H.P. VEDAVYASA CHAR 361
offered without appropriate pleadings would have any relevance – A
Finding of the High Court that any volume of evidence sans
appropriate pleadings would be of no avail is correct.
Dismissing the appeal, the Court
HELD: 1.1 There can be no doubt with respect to the
settled position that the Court to which the case is remanded has B
to comply with the order of remand and acting contrary to the
order of remand is contrary to law. In other words, an order of
remand has to be followed in its true spirit. [Para 7][372-H; 373-
A]
1.2. In dealing with prayers for amendment of the pleadings C
the Courts should avoid hyper technical approach. But at the
same time, the Court should keep reminded of the position that
the same cannot be granted on the mere request through an
application for amendment of the written statement, especially at
the appellate stage where what is called in question is the judgment D
and decree passed by the trial court and in other words, after the
adverse decree and without a genuine, sustainable reason. The
circumstances attending to the particular case are to be taken
into account to consider whether such a prayer is allowable or
not and no doubt, it is allowable only in rarest of rare
circumstances. In the case on hand, prayer to amend the plaint E
was allowed by the trial court. Accordingly, the amendment was
carried out by the plaintiff. Indisputably, thereafter, during the
span of one year or thereabouts more than eight opportunities
were given to the defendants therein to file additional written
statement, if any. Indubitably, the materials on record would reveal F
that the opportunities were not availed and no additional written
statement was filed. Thereafter, based on the pleadings, issues
were framed. Obviously, the defendants did not adduce any
evidence for the reasons best known to them. The suit came to
be decreed thereafter. All the subsequent developments which
ultimately culminated in the impugned judgment is discussed. G
Evidently the High Court observed that if the amendment of
written statement was allowed at that stage, it would have
necessitated framing of fresh issues and parties were to agitate
their rights as if in a de novo trial. In the circumstances thus
H
362 SUPREME COURT REPORTS [2023] 6 S.C.R.
A revealed from the materials on record and when such aspects
and evidence were taken into account by the High Court to decline
permission to amend the written statement, there is no reason
or justification to interfere with it. [Para 14 & 15][377-A-E; 378-
D-E; 379-B-E]
B 1.3. In the wake of the admission by DW-1, the attempt to
bring in new plea by amending the written statement that the
second defendant (the deceased second appellant) had purchased
the suit schedule property as per the sale deed dated 05.10.2000
has to be seen. Since admittedly and indisputably the suit from
which the appeal arises was one based on possessory title, the
C legality of the sale deed need not be gone into in this appeal and
rightly has not been gone into by the High Court. Evidently, the
High Court declined to act upon the same, in the light of the
doctrine of lis pendens. Even if it is taken for granted that the
provisions under Section 52 of the Transfer of Property Act are
D not applicable as such in the case on hand it cannot be disputed
that the principle contained in the provision is applicable in the
case on hand. It is a well-nigh settled position that wherever TP
Act is not applicable, such principle in the said provision, which
is based on justice, equity and good conscience is applicable in a
given similar circumstance, like Court sale etc. Transfer of
E possession pendente lite will also be transfer of property within
the meaning of Section 52 and, therefore, the import of Section
52 is that if there is any transfer of right in immovable property
during the pendency of a suit such transfer will be non est in the
eye of law if it will adversely affect the interest of the other party
F to the suit in the property concerned. The effect of Section 52 is
that the right of the successful party in the litigation in regard to
that property would not be affected by the alienation, but it does
not mean that as against the transferor the transaction is invalid”.
[Para 16][379-D-H; 380-A]
G 1.4. The prohibition by application of the principles of the
doctrine of lis pendens would take its effect with the institution
of the suit. There is no hesitation to hold that the High Court was
perfectly justified in the circumstances, to come to the conclusion,
while considering the application for amendment of the written
statement filed at the appellate stage, that granting the same
H would have, in effect, necessitated framing of fresh issues and
SHIVSHANKARA & ANR. v. H.P. VEDAVYASA CHAR 363
constrained the parties to agitate their rights as if in a de novo A
trial. The aspects is referred solely to drive home the point that
since the subject suit is based only on possessory title viz., on
the basis of prior possession the finding and consequential
rejection of the prayer for amendment of written statement to
bring in the plea of purchase of the property pending the suit by
B
the deceased second appellant cannot be said to be ground
resulting in grave injustice. [Para 16][380-B-D]
1.5. There was considerable delay in seeking amendment
of the written statement or filing additional written statement and
no sustainable reason was assigned as to why such prayers were
not sought in the trial court while the original proceedings were C
pending before it. It is also relevant to note that such prayers
were also not made before the High Court when the High Court
initially disposed of RFA and also before this Court in the Civil
Appeal against the said judgment. The impact and effect of the
order of remand passed by this Court assumes great relevance. D
If the judgment of the High Court was not modified by this Court
as per judgment in the Civil Appeal, it would have had the effect
of reviving the suit in full and in such eventuality, the suit should
have been deemed to be pending. [Para 20, 21][382-A-D]
1.6. In view of the subsequent judgment of this Court in E
the said Civil Appeal directed against the order of remand in
RFA, the judgment of the High Court got merged in it. As per
the same, the scope of proceedings before the trial court was
confined only to record the additional evidence of defendants and
to transmit the same to the High Court so as to enable the High
Court to dispose of the RFA afresh. The trial court could not F
have expanded the scope of the proceedings before it contrary
to the order of remand and hence, the trial court was perfectly
correct in rejecting the application for amending the written
statement [Para 22][383-A-C]
1.7. In the totality of the circumstances, taking into account G
the relevant reasons assigned by the High Court for disallowing
the prayer for amendment of the written statement and taking
note of the delay and the failure to offer any reason therefor and
H
364 SUPREME COURT REPORTS [2023] 6 S.C.R.
A the reasons mentioned there is no perversity or illegality with
the rejection of the prayer for amendment of the written statement.
On the questions as to maintainability of the suit, whether the
suit is bad for non-joinder of necessary parties as also whether
the suit ought to have been held as abated against all the
defendants for non-substitution of all the legal heirs on the death
B
of the original third defendant, the courts below returned
concurrent findings against the appellants. [Para 23, 24][383-F-
H; 384-A]
1.8 It cannot be understood as to how the plea regarding
the maintainability of the suit arise for consideration. The
C contention of the appellants is that it was filed under section 6 of
the Specific Relief Act and while disposing of the Civil Appeal,
this Court held against the respondent/ the plaintiff that the suit
is not one under Section 6 of the Specific Relief Act. Ergo,
according to the appellants, the relief claimed for possession by
D the plaintiff/the respondent was not entertainable as he being a
person claiming only possessory title and the original defendant
No. 2/ the deceased appellant No. 2 being the lawful owner of the
suit schedule property. Though the contentions appear to be
attractive and acceptable at the first blush the fact is that they
are absolutely untenable and rightly held against them, in view of
E the materials on record. It is true that the respondent/ the plaintiff
had a case that O.S. No. 6456 of 1993 filed under Section 6 of the
Specific Relief Act and even after, the judgment in the Civil Appeal
he seems to have attempted to resurrect the said question. But
this Court is entirely in agreement with the High Court that the
F question whether the suit is one under Section 6 of the Specific
Relief Act is not now available for consideration as it was held
otherwise by this Court in the judgment in the Civil Appeal and
as such it had attained finality. On the face of judgment in the
Civil Appeal the conclusion that O.S. No. 6456 of 1993 is not one
under Section 6 of the Specific Relief Act is not revisitable.
G Evidently, even-after holding thus and upon modifying the
judgment of the High Court, this Court directed only for fresh
disposal of the RFA and in that regard the trial court was directed
to record the additional evidence of the defendants and to transmit
the same to the High Court along with a report. [Para 25, 26][384-
H B-G]
SHIVSHANKARA & ANR. v. H.P. VEDAVYASA CHAR 365
1.9 It is evident that on a careful consideration of the A
available pleadings of the defendants, the High Court held that
they did not disclose their defence in their written statement and
at the same time did not even contend therein that they are in
possession of the suit property. In such circumstances, when the
facts disclose no title in either party, at the relevant time, prior
B
possession alone decides the right to possession of land in the
assumed character of owner against all the world except against
the rightful owner. In that context, it is worthy to refer to the
maxim “Possessio contra omnes valetpraeter eur cui ius sit
possessionis’ (he that hath possession hath right against all but
him that hath the very right)”. The High Court is correct in holding C
the question of maintainability of the suit in the affirmative and in
favour of the respondent herein. [Para 30 & 31][386-C-E, F]
1.10 As regards the abatement the question whether the
suit ought to have been held as abated against all the defendants
as contended by the appellants for non-substitution and owing to D
the failure to implead all the legal representatives on the death
of the original third defendant. The contention that the suit is
bad for non-joinder of necessary parties is also raised based on
the same reason. Hence, these questions are to be considered
jointly. Obviously, the courts below declined to uphold the said
contentions of the defendants. It is to be noted that the appellants E
have also raised a contention that SMS which is an organization
and SVR ought to have been impleaded as parties to the suit and
in view of their non impleadment, the suit is bad for non-joinder
of necessary parties. When that be the position and when the
subject suit is one based on prior possession the appellants are F
not justified in contending that the suit is bad for non-joinder of
SM Sangha and SVR. [Para 32][386-F-H; 387-A, D]
1.11 The appellants have also contended that the suit ought
to have been held as abated against all the defendants owing to
non-substitution of all the legal representatives of the deceased G
defendant No. 3 upon his death. This contention is bereft of any
basis and merits and was rightly repelled by the courts below. In
that regard it is to be noted that the first appellant and deceased
H
366 SUPREME COURT REPORTS [2023] 6 S.C.R.
A second appellant as also their father were all arrayed in the suit
as defendants and they were jointly defending the suit. Upon the
death of original third defendant, the original defendants No.1
and 2, who are sons of the original defendant No.3 fully and
substantially representing the joint interest contested the suit
and, thereafter, after suffering an adverse judgment and decree
B
in the suit diligently preferred the appeal before the High Court
which ultimately culminated in the impugned judgment and
decree. Even thereafter, obviously they are diligently prosecuting
the joint interest, even if the contention of joint interest is taken
as correct, by filing the captioned appeal. [Para 33][387-E-H]
C 1.12 The same analogy is applicable in a case where even
in the event of death of one of the defendants, when the estate/
interest was being fully and substantially represented in the suit
jointly by the other defendants along with deceased defendant
and when they are also his legal representatives. In such cases,
D by reason of non-impleadment of all other legal heirs
consequential to the death of the said defendant, the defendants
could not be heard to contend that the suit should stand abated
on account of non-substitution of all the other legal
representatives of the deceased defendant. In this case, it is to
be noted that along with the deceased 3rd defendant the original
E defendant Nos. 1 and 2 were jointly defending their joint interest.
Taking into account the fact that the appellants/ the original
defendants No. 1 and 2 despite the death of original defendant
No.3 defended the suit and preferred and prosecuted the first
appeal. Upon the death of the second appellant the joint interest
F is being fully and substantially taken forward in this proceeding
as well by the first appellant along with the substituted legal
representatives of the deceased second appellant, there is no
reason to disagree with the conclusions and findings of the courts
below for rejecting the contention that suit ought to have held
abated owing to the non-substitution of all the legal heirs of
G deceased third defendant against all defendants. For the same
reason, the submission that the suit was bad for non-joinder of
necessary parties of all his legal heirs/representatives also fails.
[Para 36][389-A-E]
H
SHIVSHANKARA & ANR. v. H.P. VEDAVYASA CHAR 367
1.13 There is yet another reason why the contention that A
suit was bad for non-joinder of necessary parties due to failure to
bring on record the legal representatives of the deceased third
defendant should fail. Relying on Exhibit D-1 it is contended that
pursuant to the agreement for sale of the suit schedule property
executed in favour of the first appellant/ the first defendant jointly
B
by SMS and SVR its possession was handed over to the first
appellant. Its rejection by the High Court is upheld. However,
what is being taken out of the said contention is that based on
the same the appellants cannot raise a ground of non-joinder of
necessary parties, as the first appellant was arrayed as a party in
the very suit itself and he being the person in favour of whom the C
same was allegedly executed. The contention raised based on
Exhibit D-2 sale deed was also repelled by the High Court and is
upheld. The note is taken of the same again solely to stress upon
the position that the case built upon the same can in no way be
the basis for raising a contention of non-joinder of necessary party/
D
parties. This is because the deceased second appellant who was
shown as the vendee thereunder was the original second
defendant 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 the
defendants did not have a case of ownership over the suit schedule E
property and such a case sought to bring out based on Exhibit D-
2 was repelled by the High Court and the same is upheld. They
have also failed to establish any better claim for possession. The
finding of the High Court that any volume of evidence sans
appropriate pleadings would be no avail is the correct exposition F
of law. [Para 38][389-B-D]
1.15 In such circumstances, there is absolutely no
hesitation to hold that the original defendants failed to raise
sufficient and appropriate pleadings in the written statement that
they have better right for possession of the suit properties. No G
amount of proof offered without appropriate pleadings would have
any relevance. The courts below have rightly relied on the
evidence of PW-5 to hold forceful dispossession of the defendants
from ‘B’ schedule property. Nothing is on record to uphold the
H
368 SUPREME COURT REPORTS [2023] 6 S.C.R.
A said finding. As regard the issue whether the impugned judgment
is inflicted with perversity or any patent illegality warranting
interference in invocation of the power under Article 136 of the
Constitution of India. The sound reasons given by the courts
below persuade to answer it in the negative. After carefully
considering the evidence on record the trial court arrived at the
B
conclusion that the respondent/ the plaintiff is entitled to get back
the possession of suit schedule property from which he was
dispossessed and even after careful consideration of the
additional evidence recorded and transmitted to the High Court
by the trial court and considering all contentions and aspects the
C High Court only confirmed the judgment and decree of the trial
court. When the concurrent findings of the courts below are the
outcome of the rightful consideration and appreciation of materials
on record they do not call for any interference. Taking into account
the fact that the suit was indisputably filed based on prior
permission and illegal dispossession there is no reason to place
D
sale deed executed (even if by the owners) in favour of the
deceased second appellant to displace the concurrent findings of
the courts below on the entitlement of the respondent/the plaintiff
for a decree as granted by the trial court and confirmed by the
High Court. [Para 39, 40, 41][390-G; 391-A-F]
E Thomson Press (India) Ltd. v. Nanak Builders and
Investors Private Limited (2013) 5 SCC 397 : [2013] 2
SCR 74; Gayathri Women’s Welfare Association v.
Gowramma And Anr. (2011) 2 SCC 330 : [2011] 2 SCR
47; Pandit Ishwardas v. State of Madhya Pradesh And
F Ors. (1979) 4 SCC 163 : [1979] 2 SCR 424; United
Bank 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; Krishna
Ram Mahale (Dead), By LRs v. Mrs. Shobha Venkat
Rao (1989) 4 SCC 131; Nair Service Society Ltd v. Rev.
G Father 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 369
of Andhra Pradesh through Principal Secretary and A
Ors. v. Pratap Karan and Ors. (2016) 2 SCC 82 : [2015]
12 SCR 702; Duggi Veera Venkata Gopala
Satyanarayana 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] 3
B
SCR 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 (17th
Edn., 1977) – referred to.
Case Law Reference C
[2013] 2 SCR 74 referred to Para 16
[2011] 2 SCR 47 referred to Para 18, 19
[1979] 2 SCR 424 referred to Para 18
[2000] 3 Suppl. SCR 153 referred to Para 21 D
(1989) 4 SCC 131 referred to Para 27
[1968] SCR 163 referred to Para 27, 28
(1900) ILR 23 Mad 179 referred to Para 28
(1995) 3 Supp. SCC 331 referred to Para 34 E
[2015] 12 SCR 702 referred to Para 35
[1987] 1 SCR 674 referred to Para 38
[1981] 3 SCR 605 referred to Para 38
F
[2012] 8 SCR 35 referred to Para 38
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 10215
of 2011.
From the Judgment and Order dated 09.09.2010 of the High Court
of Karnataka at Bangalore in RFA No. 1966 of 2007. G
Ms. Kiran Suri, Sr. Adv., T. S. Shanthi, Narendra Kumar, Sanjeev
Kumar, Advs. for the Appellants.
Narendra Hooda, Sr. Adv., Aljo K. Joseph, Shaurya Lamba,
Ms. Shelna K., Ritesh Kumar Chowdhary, Advs. for the Respondent.
H
370 SUPREME COURT REPORTS [2023] 6 S.C.R.
A The 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 file
of the Court of XIV Additional City Civil Judge, Bangalore, filed this
appeal under Article 136 of the Constitution of India, calling in question
B the judgment and decree dated 09.09.2010 passed by the Hon’ble High
Court of Karnataka at Bengaluru in RFA No.1966 of 2007. They are the
sons of the third defendant in the said suit, who died during its pendency.
They filed the stated first appeal on being aggrieved and dissatisfied
with the judgment and decree dated 04.07.2007 in O.S. No.6456 of 1993.
C During the pendency of the captioned appeal, the second appellant
died and consequently his legal heirs were impleaded as additional
appellants 2.1 to 2.4. Ergo, in this appeal, hereafter the original first
appellant and the impleaded legal heirs of the deceased second appellant
are collectively described as ‘appellants’, unless otherwise specifically
mentioned. The respondent herein was the plaintiff in the said suit which
D was filed originally praying thus: -
“to grant a judgment for decree of permanent injunction
restraining the first and second defendants either by themselves
or through anyone on their behalf from interfering in the
plaintiffs right, title and interest over and in the suit schedule
E property including creating documents alienating the property
to others and award cost and grant such other relief (s) as
deemed fit and proper under the circumstances to the interest
of justice and equity.”
2. The appellants herein filed written statement contending, inter
F alia, that the subject suit is not maintainable, that there is no prayer for
possession, that the suit was not valued correctly and that the real owners
of 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’.
G Compositely, the suit property, which is a house bearing No. B-91, has
been described as ‘A schedule’ and out of which a portion measuring
35’ x 40’, within the boundaries mentioned, has been described as ‘B
schedule’. ‘C schedule’ is the portion of the premises bearing No. B-91
as described therein. To be precise, the prayers in the amended plaint
read as under: -
H
SHIVSHANKARA & ANR. v. H.P. VEDAVYASA CHAR 371
[C. T. RAVIKUMAR, J.]
“(a) a judgment and decree of perpetual injunction against A
the defendants 1 to 3 directing the defendants to restore the
possession of the schedule premises to the plaintiff and not to
interfere in the plaintiffs’ lawful possession and enjoyment of
the schedule property in any manner whatsoever.
(b) A judgment and decree against the defendants for B
mandatory injunction directing the defendants to restore the
possession of the ‘B’ schedule property, which is marked
‘ABCD’ in the annexed sketch, and there may be decree for
permanent injunction against the defendants for ‘CDEF’
portion which is marked as ‘C’ schedule to the plaint and C
there may be a decree for the enquiry into the mesne profits
with Order XVIII Rule 12 of CPC, and also there may be a
decree for the cost of the suit, with such other relief or reliefs
as this Hon’ble Court deems fit in the circumstances of the
case.:
D
3. Obviously, the defendants did not challenge the order allowing
the amendment of the plaint and also did not file additional written
statement after the amendment.
4. The Trial Court framed the following issues based on the
pleadings on both sides: E
1) Whether the suit is bad for mis-joinder or non-joinder of
necessary parties?
2) Whether the Court fee paid on the plaint is insufficient?
3) Whether the plaintiff is entitled for possession of the suit
F
schedule premises?
5. Though the plaintiff/respondent herein adduced oral and
documentary evidence in support of his claims, the defendant therein did
not lead any evidence, at all. The Trial Court, after considering the evidence
and the provisions of law applicable partly decreed the suit as per judgment
dated 04.07.2007, holding that the plaintiff/respondent herein, is entitled G
to recover possession of suit ‘B’ schedule property from the defendants
and consequently directed the defendants to vacate and deliver suit ‘B’
schedule property to the plaintiff (the respondent herein) within two
months from that day. Further, it was also decreed that the plaintiff would
be entitled to recover possession of ‘B’ schedule property from the H
372 SUPREME COURT REPORTS [2023] 6 S.C.R.
A defendants by due process of law in case of failure on the part of the
defendants to vacate and deliver the suit ‘B’ schedule property within
the period stipulated. Furthermore, the defendants were restrained by
perpetual injunction from interfering with the peaceful possession and
enjoyment of ‘C’ schedule property by the plaintiff.
B 6. As noted earlier, defendant No. 3 died during the pendency of
the suit. The surviving defendants viz., the original defendant Nos.1 and
2 challenged the judgment and decree dated 04.07.2007 of the trial Court
before 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 Civil
Procedure, 1908 (for short, the CPC’) seeking permission to produce
C additional evidence. Virtually, they did not adduce any evidence
whatsoever 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 Relief
Act, 1963. The High Court dispelled the said objection and as per judgment
D dated 29.10.2007 allowed the application for production of additional
evidence and remanded the matter to the trial Court for fresh disposal
after affording an opportunity to the defendants viz., the first appellant
herein and the deceased second appellant to lead additional evidence.
The said judgment of the High Court dated 29.10.2007 was challenged
by the plaintiff/respondent herein before this Court in SLP (Civil) No.1279
E of 2008 essentially, contending that the said suit being one filed under
Section 6 of the Specific Relief Act, the appeal filed before the High
Court being RFA No.1966 of 2007 was incompetent. Leave was granted
by this Court and the Civil Appeal arising from the SLP viz., Civil Appeal
No.5201 of 2009 was dispose of as per judgment dated 03.09.2009 holding
F that O.S. No.6456 of 1993 was not one under Section 6 of the Specific
Relief Act, as the relief sought for did not fall within its scope. While,
virtually, remanding the matter thereunder to the High Court for fresh
disposal of the appeal the trial Court was directed to record the evidence
as directed by the High Court and to submit a report thereon to the High
Court to enable it to dispose of the appeal within the time stipulated.
G
7. Before proceeding with the matter further, we think it
appropriate to consider the impact of such an order of remand as it
would certainly deconvolute consideration of this appeal. There can be
no doubt with respect to the settled position that the Court to which the
case is remanded has to comply with the order of remand and acting
H
SHIVSHANKARA & ANR. v. H.P. VEDAVYASA CHAR 373
[C. T. RAVIKUMAR, J.]
contrary to the order of remand is contrary to law. In other words, an A
order of remand has to be followed in its true spirit. True that in this
case the High Court, originally, as per judgment dated 29.10.2007
remanded the matter to the trial Court for fresh disposal and while doing
so, it also directed the trial Court to afford opportunity to the defendants
to lead evidence. But then, the same was modified by this Court and as
B
per the judgment in C.A. No.5201 of 2009 the matter was remanded to
the High Court for fresh disposal of RFA No.1996 of 2007 and the
further direction to the trial Court was only to record the evidence as
directed by the High Court and to forward it along with report to enable
the High Court to dispose of the appeal taking into account the additionally
recorded evidence of the defendants as well. Thus, it is evident that the C
direction to the trial Court for recording the evidence and submitting it
along with report will not efface the evidence already on record or will
not be having the effect of setting aside of the judgment and decree
passed by the trial Court and indisputably, its purpose was only to enable
the High Court to consider RFA No.1996 of 2007 carrying challenge
D
against the judgment and decree of the trial Court in O.S. No.6456 of
1993, not only based on the evidence already considered by the trial
Court but also based on the additionally recorded evidence of the
defendants based on its judgment dated 29.10.2007.
8. Now, we will proceed with the matter further. In fact, in the
meanwhile, pursuant to the order of remand by the High Court the Trial E
Court took up the matter and posted it for defendants’ evidence. The
original defendant Nos. 1 and 2 (the first appellant herein and the deceased
second appellant) filed an application for amendment of the written
statement before the Trial Court. Besides the same, three more
applications were filed before the Trial Court viz., (1) seeking permission F
to file additional written statement; (2) seeking permission to produce 8
documents; and (3) to recall PW-1. The Trial Court allowed only the
applications for permission to produce documents and to recall PW-1,
by order dated 13.11.2007. The plaintiff/respondent herein challenged
the same before the High Court in WP No. 18328 of 2007 and
consequently, the High Court stayed the said order dated 13.11.2007. It G
was thereafter that Civil Appeal No. 5201 of 2009 was disposed of by
this Court in the manner mentioned above. Pursuant to this Court’s order
dated 03.08.2009 the Trial Court took up the matter and posted it for
the evidence of the defendants. They filed I.A. No. 8 of 2009 seeking
permission to amend the written statement which came to be dismissed H
374 SUPREME COURT REPORTS [2023] 6 S.C.R.
A by the Trial Court. Thereafter, the second defendant filed affidavit in
lieu of chief examination and got marked Exhibits D-1 to D-9 and he
was also cross-examined. However, they did not examine any other
witnesses. Later, the Trial Court transmitted the recorded evidence to
the High Court along with its report.
B 8.1 Pursuant to the receipt of the report and recorded evidence
the High Court took up RFA No. 1966 of 2007. The defendants viz., the
appellants therein filed three interlocutory applications before the High
Court as hereunder:-
1) Misc. Civil Application No. 10400/2010 under Order 41 Rule
C 2 read with Section 151 CPC to raise additional grounds 16A
and l6B in the Appeal.
2) Misc. Civil Application No. 11451/2010 under Order 41 Rule
2 read with Section 151 CPC to raise additional grounds 16C
and 16D in the appeal.
D 3) Misc. Civil Application No.11452/2010 under Order 6 Rule 17
read with 151 CPC for amendment of written statement.
8.2 Misc. Civil Application No. 10400/2010 to raise additional
grounds was allowed on consent. However, the other two applications
were vehemently opposed. After hearing the parties on the main appeal
E as also on the other two applications referred above, the Hon’ble High
Court formulated the following points for consideration: -
(i) “Whether the application Misc.Civil.No.11452 /
2010 filed by the appellants under Order VI Rule 17 read
with Section 151 of the Code of Civil Procedure seeking
F amendment of the written statement to incorporate
paragraphs 26(b) to 26(e) deserves to be allowed or
rejected?”
(ii) Whether the application Misc. Civil No.11451/2010 filed
under 41 Rule 2 r/w Section 151 of the Code of Civil
G Procedure by the appellants to raise additional grounds
in this appeal as ground No. l6C & 16D is to be allowed
or dismissed?”
(iii) Whether the suit as brought is maintainable or not?
(iv) Whether the suit is bad for non-joinder of necessary
H parties?
SHIVSHANKARA & ANR. v. H.P. VEDAVYASA CHAR 375
[C. T. RAVIKUMAR, J.]
(v) Whether the judgment and decree passed by the XIV Addl. A
City Civil Court in O.S. No.6456/1993 dated 4-7-2007 is
to be reversed, confirmed or modified?
(vi) What order?”
9. After elaborately considering the contentions, the evidence
adduced by both sides with reference to the rival pleadings, the High B
Court answered the points formulated against the appellants herein and
in favour of the respondent herein. Misc. Application Nos. 11451 of
2010 and 11452 of 2010, seeking respectively amendment of the written
statement and permission to raise additional grounds viz., ground No.16
(c) and 16(d), were dismissed. Point No.3 in regard to the maintainability C
of the suit raised by the appellants therein was rejected and suit was
held 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 held
that the respondent herein/the plaintiff is entitled to the judgment and
decree as decreed by the Trial Court and consequently the appeal was D
dismissed with cost and the judgement and decree of the Trial Court was
confirmed. Hence, this appeal.
10. Heard, Ms. Kiran Suri, learned Senior Counsel for the appellants
and Mr. Narender Hooda, learned Senior Counsel for the respondent.
E
11. The appellants have raised multiple grounds to assail the
judgment 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 Court
had failed to consider the contention that the subject suit was actually
abated owing to the failure of the respondent herein/the plaintiff to bring F
on record the legal representatives of Sri Hanumaiah, the third respondent
who breathed his last during the pendency of the subject suit. It is their
further contention that Sri Rama @ Ramamurthy, the deceased second
defendant had purchased the suit property from Sriman Madhwa Sangha
which is an organisation and Sri Vittal Rao as per sale deed executed on G
05.10.2000 jointly by the latter and the authorised representative of the
former organisation and therefore, the High Court ought not to have
confirmed the judgment and decree of the trial Court.
12. We have already taken note of the fact that the Misc. Civil
Application carrying the prayers for amendment of the written statement
H
376 SUPREME COURT REPORTS [2023] 6 S.C.R.
A by incorporating paragraphs 26 (b) to 26 (e) and for raising additional
grounds in the appeal were dismissed by the High Court. The points
formulated qua those prayers were jointly considered by the High Court
owing to the interlacement of the relevant facts. The avowed purpose
of the proposed amendment was obviously to bring in the contention that
the suit property was purchased by the deceased second appellant from
B
Sriman Madhwa Sangha and Sri Vittal Rao as per sale deed dated
05.10.2000.
13. Evidently, in this case the Trial Court decreed the suit on
04.07.2007 and the original defendants 1 and 2 viz., the first appellant
and the deceased second appellant in this appeal, preferred appeal viz.,
C RFA No.1966 of 2007 challenging the same. In the said appeal, an
application under Order XLI Rule 27 CPC seeking permission to adduce
additional evidence was filed raising the contention that they were not
given opportunity to adduce evidence. The said appeal came to be
disposed of by the High Court as per judgment and decree dated
D 29.10.2007, whereunder the said application was allowed and the
appellants therein/the original defendants 1 and 2, were given permission
to lead additional evidence before the Trial Court. Furthermore, an
opportunity to cross-examine the said defendants were given to the
respondent herein/the plaintiff. A direction was also given to the Trial
Court thereunder to dispose of the case on merits in so far as ‘B’ schedule
E property is concerned. It is aggrieved by the said judgment and decree
dated 29.10.2007 of the High Court that the respondent herein/the plaintiff
filed a Civil Appeal No.5201 of 2009 arising out of SLP (C) No.1279 of
2008 before this Court and which came to be disposed of modifying the
judgment and decree of the High Court dated 29.10.2007 by directing
F the Trial Court to record the evidence ‘as directed by the High Court’
and transmit the records to the First Appellate Court viz., the High Court
and such other directions as mentioned hereinbefore. The impugned
order was passed thereafter by the High Court whereby the judgment
and decree of the Trial Court was confirmed. It is thus obvious that
there are concurrent findings against the appellants and in favour of the
G respondent herein. Normally, an in-depth consideration is not the rule in
an appeal by Special Leave filed under Article 136 of the Constitution of
India when the findings are concurrent, in the absence of exceptional
circumstances. Nonetheless, taking into account the facts that the
captioned appeal is of the year 2011 and an interim direction to the parties
H to maintain the status quo was passed as early as on 25.02.2011, we are
SHIVSHANKARA & ANR. v. H.P. VEDAVYASA CHAR 377
[C. T. RAVIKUMAR, J.]
inclined to deal with the conclusions and also the contentions of the A
parties appropriately.
14. We are not oblivious of the settled position that in dealing with
prayers for amendment of the pleadings the Courts should avoid hyper
technical approach. But at the same time, we should keep reminded of
the position that the same cannot be granted on the mere request through B
an application for amendment of the written statement, especially at the
appellate stage, where, what is called in question is the judgment and
decree passed by the trial Court and, in other words, after the adverse
decree and without a genuine, sustainable reason. In short, the
circumstances attending to the particular case are to be taken into account
to consider whether such a prayer is allowable or not and no doubt, it is C
allowable only in rarest of rare circumstances. In the case on hand,
prayer to amend the plaint was allowed by the Trial Court as per order
dated 01.09.1995. Accordingly, the amendment was carried out by the
plaintiff. Indisputably, thereafter, during the span of one year or
thereabouts more than eight opportunities were given to the defendants D
therein to file additional written statement, if any. Indubitably, the materials
on record would reveal that the opportunities were not availed and no
additional written statement was filed. Thereafter, based on the pleadings,
issues were framed. Obviously, the defendants did not adduce any
evidence for the reasons best known to them. The suit came to be decreed
thereafter as mentioned earlier. We have also discussed in detail all the E
subsequent developments which ultimately culminated in the impugned
judgment dated 09.09.2010 in RFA No.1966 of 2007, including the slight
modification of the judgment and decree of the High Court dated
29.10.2007 in terms of the judgment of this Court in Civil Appeal No.5201
of 2009. Pursuant to the judgment in the said Civil Appeal by this Court, F
in terms of the surviving directions of the High Court in its judgment
dated 09.09.2010, which virtually merged with the judgment in C.A.
No.5201 of 2009 the second defendant viz., the deceased second appellant
herein filed his affidavit in lieu of his examination-in-chief on 16.09.2009
and got marked Exhibits D-1 to D-9. He was then cross examined. No
other witnesses were examined on behalf of the defendants. G
15. The materials on record and the impugned judgment passed
by the High Court would reveal that the original defendants 1 and 2, who
were the appellants before the High Court raised various contentions in
support of their prayers for amendment of the written statement as
H
378 SUPREME COURT REPORTS [2023] 6 S.C.R.
A also for permission to raise additional grounds in the appeal, before the
High Court and they were also reiterated before us. It is contended that
the delay in seeking such prayers by itself cannot be a reason to reject
the prayers made in the stated Misc. Civil Applications and further that
allowing such prayers would not have, in any way, caused prejudice to
the respondent herein/the respondent therein. The chronology of events
B
referred to hereinbefore in this judgment were evidently weighed with
the High Court while considering the said applications and also answering
the points formulated qua those prayers. The fact that the defendants
were given opportunities to file additional written statements for not less
than eight times after the amendment of the plaint, in between the period
C 07.03.1996 till the framing of the issues viz. 15.04.1997, that in the
interlocutory application filed in RFA No.1966 of 2007 based on which
the trial Court was directed to afford opportunity to the defendants to
adduce evidence as per judgment and decree passed on 29.10.2007 they
sought permission only to adduce evidence, contending that they were
deprived of opportunity to adduce evidence and even at that point of
D
time no permission was sought for amending the written statement, were
taken into consideration by the High Court. Evidently, the High Court
also observed that if the amendment of written statement was allowed
at that stage, it would have necessitated framing of fresh issues and
parties were to agitate their rights as if in a de novo trial. That apart, the
E High Court, inter alia considered the following aspects as well:
That, in the written statement filed by the defendants they did not
disclose their defence and at the same, they also did not plead therein
that they are in possession of the suit property.
That their plea, essentially attracts the principle of ‘just tertii’,
F which expression in Latin means ‘right of a third party’, that the third
parties, according to them, are Sriman Madhwa Sangha, which is an
organisation and Sri Vittal Rao, that it has come in evidence that those
third parties filed a petition for evicting the respondent herein/plaintiff as
HRC No. 10020 of 1991. The fact is that the defendants had pleaded
G that the ownership of the suit property was with the said third parties
and did not claim possession specifically and it is thereafter that they
sought to bring in a plea that pursuant to an agreement for sale entered
into between those parties viz., the first defendant/the first appellant
herein viz., Exhibit D-1 dated 01.03.1993 possession of the suit schedule
property was delivered to the first appellant. But the crucial reason
H
SHIVSHANKARA & ANR. v. H.P. VEDAVYASA CHAR 379
[C. T. RAVIKUMAR, J.]
assigned by the High Court to dispel them is that the first defendant/the A
first appellant herein did not enter the box and the deceased second
defendant/the second defendant while being examined as DW-1, during
his chief examination itself admitted that the respondent herein/the plaintiff
was then in possession of the suit schedule ‘A’ property (which also
includes ‘B’ schedule) viz., in and vide paragraph 8 of his affidavit filed
B
in lieu of chief examination. That apart, it was noted that during the
cross-examination DW-1 admitted that as on the date of Exhibit D-1,
possession of the property was not taken as Sriman Madhwa Sangha
assured to secure possession and hand it over to the first defendant. In
the circumstances thus revealed from the materials on record and when
such aspects and evidence were taken into account by the High Court to C
decline permission to amend the written statement, we do not find any
reason or justification to interfere with it.
16. To fortify our view, we will consider certain other aspects as
well. In the wake of the above-mentioned admission by DW-1, the attempt
to bring in new plea by amending the written statement that the second D
defendant (the deceased second appellant) had purchased the suit
schedule property as per Exhibit D-2, sale deed dated 05.10.2000 has to
be seen. Since admittedly and indisputably the suit from which the appeal
arises was one based on possessory title, the legality of Exhibit D-2 sale
deed need not be gone into in this appeal and rightly has not been gone
into by the High Court. Evidently, the High Court declined to act upon E
the same, in the light of the doctrine of lis pendens. Even if it is taken
for granted that the provisions under Section 52 of the Transfer of
Property Act are not applicable as such in the case on hand it cannot be
disputed that the principle contained in the provision is applicable in the
case on hand. It is a well-nigh settled position that wherever TP Act is F
not applicable, such principle in the said provision of the said Act, which
is based on justice, equity and good conscience is applicable in a given
similar circumstance, like Court sale etc. Transfer of possession pendente
lite will also be transfer of property within the meaning of Section 52
and, therefore, the import of Section 52 of the TP Act is that if there is
any transfer of right in immovable property during the pendency of a suit G
such transfer will be non est in the eye of law if it will adversely affect
the interest of the other party to the suit in the property concerned. We
may hasten to add that the effect of Section 52 is that the right of the
successful party in the litigation in regard to that property would not be
affected by the alienation, but it does not mean that as against the H
380 SUPREME COURT REPORTS [2023] 6 S.C.R.
A transferor the transaction is invalid. In the decision in Thomson Press
(India) Ltd. v. Nanak Builders and Investors Private Limited 1, this
Court held the provision of Section 52 pf the Transfer of Property Act,
1882, did not indeed annul the conveyance or the transfer otherwise, but
to render it subservient to the rights of the parties to a litigation.
B There can be no doubt with respect to the position that the
prohibition by application of the principles of the said doctrine would
take its effect with the institution of the suit. Be that as it may, we have
no hesitation to hold that the High Court was perfectly justified in the
circumstances, to come to the conclusion, while considering the application
for amendment of the written statement filed at the appellate stage, that
C granting the same would have, in effect, necessitated framing of fresh
issues and constrained the parties to agitate their rights as if in a de
novo trial. We referred to the aforesaid aspects solely to drive home the
point that since the subject suit is based only on possessory title viz., on
the basis of prior possession the finding and consequential rejection of
D the prayer for amendment of written statement to bring in the plea of
purchase of the property pending the suit by the deceased second appellant
cannot be said to be ground resulting in grave injustice.
17. It is also not inappropriate in this context, to refer to another
indisputable position. The materials on record would reveal that before
E passing of the judgment and decree the trial Court, afforded several
opportunities to the defendants to file additional written statement but
they failed not only to file additional written statement but also failed to
file any application for amendment of the written statement before the
trial court during the pendency of original proceedings before it. It is a
fact that the defendants filed an application for amendment of the written
F statement before the trial Court when the matter was sent to the trial
Court pursuant to the order of this Court in CA No. 5201 of 2009 for
recording the evidence solely for the purpose of forwarding the same
along with a report to the High Court to enable the High Court to dispose
of RFA No. 1966 of 2007. So also, it is an indisputable fact that even
G while filing an application with prayer to grant permission for amendment
of the written statement in RFA No.1996 of 2007 the defendants had not
assigned any reasons for delay and no reasonable explanation was given
for not filing such an application before the trial Court when the original
proceedings were pending before the trial Court. What was assigned as
1
H (2013) 5 SCC 397
SHIVSHANKARA & ANR. v. H.P. VEDAVYASA CHAR 381
[C. T. RAVIKUMAR, J.]
a reason is that they could not file an additional written statement owing A
to mistake and by oversight. No other reason was assigned for non-filing
of application for amendment of written statement.
18. In the contextual situation, it is relevant to refer to the decision
of this Court in Gayathri Women’s Welfare Association v. Gowramma
And Anr.2 wherein the observation in the decision of this Court in Pandit B
Ishwardas v. State of Madhya Pradesh And Ors. 3 at paragraph 34
which was quoted with agreement, as under: -
“34. In Ishwardas, it has been observed as follows
(SCC P. 166, Para 5):
C
5. There is no impediment or bar against an appellate court
permitting amendment of pleadings so as to enable a party
to raise a new plea. All that is necessary is that the appellate
court should observe the well-known principles subject to
which amendments of pleadings are usually granted.
Naturally one of the circumstances which will be taken D
into consideration before an amendment is granted is the
delay in making the application seeking such amendment
and, if made at the appellate stage, the reason why it was
not sought in the trial court. If the necessary material on
which the plea arising from the amendment may be decided E
is already there, the amendment may be more readily
granted than otherwise. But, there is no prohibition against
an appellate court permitting an amendment at the appellate
stage merely because the necessary material is not already
before the court.”
F
19. After quoting the same it was observed in Gayathri Women’s
Welfare Association’s case (supra) thus: -
“These observations clearly indicate that one of the
circumstances which will be taken into consideration before
an amendment is granted is the delay in making the
G
application seeking such amendment and, if made at the
appellate sage, the reason why it was not sought in the trial
court.”
2
(2011) 2 SCC 330
3
(1979) 4 SCC 163 H
382 SUPREME COURT REPORTS [2023] 6 S.C.R.
A 20. It is to be noted that in the case on hand also as stated earlier,
there was considerable delay in seeking amendment of the written
statement or filing additional written statement and no sustainable reason
was assigned as to why such prayers were not sought in the trial court
while the original proceedings were pending before it. It is also relevant
to note that such prayers were also not made before the High Court
B
when the High Court initially disposed of RFA No. 1966 of 2007 as per
judgment dated 29.10.2007 and also before this Court in CA No. 5201 of
2009 directed against the said judgment.
21. In the afore-mentioned contextual situation, the impact and
effect of the order of remand passed by this Court in CA No.5201 of
C 2009, assumes great relevance. We have considered and come to a
conclusion on this aspect as can be seen from paragraph 5 (supra). If
the judgment of the High Court in RFA No.1996 of 2007 was not modified
by this Court as per judgment in CA No.52001 of 2009 it would have had
the effect of reviving the suit in full and in such eventuality, the suit
D should have been deemed to be pending. In that context, it is apposite to
refer to paragraph 16 of the decision of this Court in United Bank of
India, 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 the
appellate court to the trial court which had disposed of the
E suit revives the suit in full except as to matters, if any, decided
finally by the appellate court. Once the suit is revived, it must,
in the eye of the law, be deemed to be pending — from the
beginning when it was instituted. The judgment disposing of
the suit passed by the Single Judge which is set aside gets
effaced altogether and the continuity of the suit in the trial
F court is restored, as a matter of law. The suit cannot be treated
as one freshly instituted on the date of the remand order.
Otherwise serious questions as to limitation would arise. In
fact, if any evidence was recorded before its earlier disposal,
it would be evidence in the remanded suit and if any
G interlocutory orders were passed earlier, they would revive.
In the case of a remand, it is as if the suit was never disposed
of (subject to any adjudication which has become final, in
the appellate judgment). The position could have been different
H 4
(2000) 7 SCC 357
SHIVSHANKARA & ANR. v. H.P. VEDAVYASA CHAR 383
[C. T. RAVIKUMAR, J.]
if the appeal was disposed of once and for all and the suit A
was not remanded.”
22. In view of the subsequent judgment of this Court in Civil Appeal
No.5201 of 2009, dated 03.09.2009, directed against the order of remand
in RFA No.1996 of 2007, the judgment of the High Court got merged in
it. As per the same, the scope of proceedings before the trial Court was B
confined only to record the additional evidence of defendants and to
transmit the same to the High Court so as to enable the High Court to
dispose of RFA No.1996 of 2007 afresh. In short, in view of the settled
position, the trial Court could not have expanded the scope of the
proceedings before it contrary to the order of remand and hence, the trial
Court was perfectly correct in rejecting the application for amending the C
written statement. In this context, the direction of the High Court of
Madhya Pradesh in Rukhmanand v. Deenbandh5, assumes relevance.
It reads thus:-
“It is settled law that when a suit is remanded for a decision
afresh with certain specific directions, the jurisdiction of the D
trial Court after remand depends upon the terms of the order
of remand and the trial Court cannot either consider matters
other than those specified in the remand order, or enter into
questions falling outside its limit. There was, therefore, no
jurisdiction in the learned trial Judge to allow an amendment E
of the pleadings which was outside the scope of the remand
order.”
23. In the totality of the circumstances, especially taking into
account the relevant reasons assigned by the High Court for disallowing
the prayer for amendment of the written statement and taking note of F
the delay and the failure to offer any reason therefor and the reasons
mentioned hereinbefore we see no reason at all to hold any perversity or
illegality with the rejection of the prayer for amendment of the written
statement.
24. We have noted the points of agreement in the judgments of G
the courts below. On the questions as to maintainability of the suit, whether
the suit is bad for non- joinder of necessary parties as also whether the
suit 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
5
1971 JLJ SN 159 H
384 SUPREME COURT REPORTS [2023] 6 S.C.R.
A defendant, the courts below returned concurrent findings against the
appellants.
25. We are at a loss to understand as to how the plea regarding
the maintainability of the suit arise for consideration. The contention of
the appellants is that it was filed under section 6 of the Specific Relief
B Act and while disposing of C.A. No. 5201 of 2009 this court held against
the respondent herein/ the plaintiff that the suit is not one under Section
6 of the Specific Relief Act. Ergo, according to the appellants, the relief
claimed for possession by the plaintiff/the respondent herein was not
entertainable as he being a person claiming only possessory title and the
original defendant No. 2/ the deceased appellant No. 2 being the lawful
C owner of the suit schedule property. Though the contentions appear to
be attractive and acceptable at the first blush the fact is that they are
absolutely untenable and rightly held against them, in view of the materials
on record.
26. It is true that the respondent herein/ the plaintiff had a case
D that O.S. No. 6456 of 1993 filed under Section 6 of the Specific Relief
Act and even after, the judgment in C.A. No. 5201 of 2009 he seems to
have attempted to resurrect the said question. But we are entirely in
agreement with the High Court that the question whether the suit is one
under Section 6 of the Specific Relief Act is not now available for
E consideration as it was held otherwise by this court in the judgment in
C.A. No. 5201 of 2009 and as such it had attained finality. On the face
of 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 not
revisitable. Evidently, even-after holding thus and upon modifying the
judgment of the High Court dated 29.10.2007 this Court directed only
F for fresh disposal of RFA No. 1996 of 2007 and in that regard the trial
Court was directed to record the additional evidence of the defendants
and to transmit the same to the High Court along with a report.
27. Indisputably, the case of the respondent herein/the plaintiff is
based on prior possession and illegal dispossession by the respondents.
G During his cross- examination also PW-1 the respondent herein deposed
that 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 not
maintainable. It is also a fact that after carefully scanning the pleadings
and evidence of the defendants, the High Court, as per the impugned
H judgment, held that what is raised by the defendants to resist the case of
SHIVSHANKARA & ANR. v. H.P. VEDAVYASA CHAR 385
[C. T. RAVIKUMAR, J.]
the plaintiff / the respondent herein is nothing but a plea that attracts the A
principle of “jus tertii”, which in Latin means ‘right of a third party.’ In
fact, it is a plea against a claim of interest in property, raised in defence
that a third party has a better right than the claimant. In this context, it
is 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 an
B
action of trespass can plead the ‘jus tertii’ that the right of possession
outstanding in some third person. Obviously, to buttress their contention
that the suit is maintainable, based on the contention of the defendants
that the right of possession is outstanding in some third person that attract
the principal of ‘jus tertii’ and that they, therefore, are not justified in
challenging the maintainability of the suit the defendant relied upon the C
decision of this Court in Krishna Ram Mahale (Dead), By LRs v.
Mrs. Shobha Venkat Rao6. The impugned judgment would reveal that
based on the exposition of law in the aforesaid decision and taking note
of the factual position, the High Court has come to the conclusion that
the challenge made by the defendants regarding the maintainability of
D
the suit is untenable. In that context, the High Court has also considered
the 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 could
not be said that after a period of six months is over, a suit based on
prior possession alone, is not possible and it in so far as relevant reads
thus: - E
“15. We agree as to a part of the reasoning but with respect
we cannot subscribe to the view that after the period of 6
months is over a suit based on prior possession alone, is not
possible. Section 8 of the Specific Relief Act, 1963 does not
limit the kinds of suit but only lays down that the procedure F
laid down by the Code of Civil Procedure must be followed.
This is very different from saying that a suit based on
possession alone is incompetent after the expiry of six months.
Under Section 9 of the Civil Procedure Code, it is all suits of
civil nature are triable except suits of which their cognizance
would either expressly or impliedly barred.” G
6
(1989) 4 SCC 131
7
AIR 1968 SC 1165 H
386 SUPREME COURT REPORTS [2023] 6 S.C.R.
A 28. In Nair Service Society Ltd. case (supra) this Court quoted
the following observations made in Mustapha Saheb v. Santha Pillai8,
with agreement: -
“…..that a party ousted by a person who has no better right
is, with reference to the person so ousting, entitled to recover
B by virtue of the possession he had held before the ouster even
though that “possession was without any title.”
29. In view of the aforesaid decisions and the factual position
obtained in this case, in our opinion, the decisions sought to be relied on
by the appellants are really of no assistance.
C 30. It is evident that on a careful consideration of the available
pleadings of the defendants, the High Court held that they did not disclose
their defence in their written statement and at the same time did not
even contend therein that they are in possession of the suit property.
According to us, in such circumstances, when the facts disclose no title
D in either party, at the relevant time, prior possession alone decides the
right to possession of land in the assumed character of owner against all
the world except against the rightful owner. In that context, it is worthy
to refer to the maxim ‘Possessio contra omnes valet praeter eur cui
ius sit possessionis’ (he that hath possession hath right against all but
him that hath the very right)”.
E
31. In the light of the factual position obtained in this case and
legal position settled in the decisions referred supra we are of the firm
view that the High Court is correct in holding the question of
maintainability of the suit in the affirmative and in favour of the respondent
herein.
F
32. Now, we will consider the question whether the suit ought to
have been held as abated against all the defendants as contended by the
appellants for non- substitution and owing to the failure to implead all the
legal representatives on the death of the original third defendant-
Hanumaiah. The contention that the suit is bad for non-joinder of
G necessary parties is also raised based on the same reason. Hence, these
questions are to be considered jointly. Obviously, the Courts below declined
to uphold the said contentions of the defendants. It is to be noted that the
appellants have also raised a contention that Sriman Madhwa Sangha
H 8
(1900) ILR 23 Mad 179
SHIVSHANKARA & ANR. v. H.P. VEDAVYASA CHAR 387
[C. T. RAVIKUMAR, J.]
which is an organization and Sri Vittal Rao ought to have been impleaded A
as parties to the suit and in view of their non impleadment, the suit is bad
for non-joinder of necessary parties. While considering the same, the
fact that the aforesaid Sriman Madhwa Sangha and Sri Vittal Rao filed
a petition for eviction against the respondent herein as HRC No.10020
of 1991 wherein it was stated that the first respondent therein (the
B
respondent herein) is in occupation of a portion of the schedule property
and he has illegally and unauthorizedly sub-let the other two portions of
the property to the second and third respondents therein, namely Shri B.
Ramachandra Rao and Sh. N. Murlidhara Rao on monthly rental of
Rs.400/- and Rs.300/- respectively and has been collecting the rents
from them, rightly taken into consideration by the High Court, requires C
to be borne in mind. That apart, the fact that while being examined as
DW-1 the deceased second appellant herein had deposed that no
possession was taken after execution of Exhibit D-1 agreement for sale
dated 01.03.1993 as Sriman Madhwa Sangha had assured to secure
possession and hand over the possession to the first appellant herein/the
D
first defendant. When that be the position and when the subject suit is
one based on prior possession the appellants herein are not justified in
contending that the suit is bad for non-joinder of Sriman Madhwa Sangha
and Sri Vittal Rao.
33. As noticed earlier, the appellants have also contended that the
suit ought to have been held as abated against all the defendants owing E
to non- substitution of all the legal representatives of the deceased
defendant No. 3 upon his death. This contention is bereft of any basis
and merits and was rightly repelled by the courts below. In that regard
it is to be noted that the first appellant and deceased second appellant as
also their father Hanumaiah were all arrayed in the suit as defendants F
and they were jointly defending the suit. Upon the death of original third
defendant viz., Hanumaiah the original defendants No.1 and 2, who are
sons of the original defendant No.3 fully and substantially representing
the joint interest contested the suit and, thereafter, after suffering an
adverse judgment and decree in the suit diligently preferred the appeal
before the High Court which ultimately culminated in the impugned G
judgment and decree. Even thereafter, obviously they are diligently
prosecuting the joint interest, even if the contention of joint interest is
taken as correct, by filing the captioned appeal.
34. In the contextual situation the following decisions assumes
relevance. The decision in Bhurey Khan v. Yaseen Khan (Dead) By H
388 SUPREME COURT REPORTS [2023] 6 S.C.R.
A LRs. And Ors.9 was referred to in the impugned judgment by the High
Court to reject the aforesaid contention of the appellants therein viz.
original defendant Nos. 1 and 2. In paragraph 4 of the decision in Bhurey
Khan’s case, this Court held thus:-
“……the estate of the deceased was thus sufficiently
B represented. If the appellant would not have filed any
application to bring on record the daughters and the widow
of the deceased the appeal would not have abated under
Order 22 Rule 4 of the Code of Civil Procedure as held by
this Court in Mahabir Prasad v. Jage Ram [(1971) 1 SCC 265
: AIR 1971 SC 742] . The position, in our opinion, would not
C be worse where an application was made for bringing on
record other legal representatives but that was dismissed for
one or the other reason. Since the estate of the deceased
was represented the appeal could not have been abated.”
35. In the decision in State of Andhra Pradesh through Principal
D Secretary and Ors. v. Pratap Karan and Ors. 10, this Court held:-
“40. In the instant case, the plaintiffs joined together and
filed the suit for rectification of the revenue record by
incorporating their names as the owners and possessors in
respect of the suit land on the ground inter alia that after the
E death of their predecessor-in-title, who was admittedly the
pattadar and khatadar, the plaintiffs succeeded the estate as
sharers being the sons of khatadar. Indisputably, therefore,
all the plaintiffs had equal shares in the suit property left by
their predecessors. Hence, in the event of death of any of the
F plaintiffs, the estate is fully and substantially represented by
the 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 of
the appeal in the High Court, entire appeal shall not stand
abated. Remaining sharers, having definite shares in the estate
G of the deceased, shall be entitled to proceed with the appeal
without the appeal having been abated. We, therefore, do not
find any reason to agree with the submission made by the
learned counsel appearing for the appellants.”
9
1995 Supp. (3) SCC 331
H 10
(2016) 2 SCC 82
SHIVSHANKARA & ANR. v. H.P. VEDAVYASA CHAR 389
[C. T. RAVIKUMAR, J.]
36. We are of the considered view that the same analogy is A
applicable in a case where even in the event of death of one of the
defendants, when the estate/interest was being fully and substantially
represented in the suit jointly by the other defendants along with deceased
defendant and when they are also his legal representatives. In such
cases, by reason of non-impleadment of all other legal heirs consequential
B
to the death of the said defendant, the defendants could not be heard to
contend that the suit should stand abated on account of non-substitution
of all the other legal representatives of the deceased defendant. In this
case, it is to be noted that along with the deceased 3rd defendant the
original defendant Nos. 1 and 2 were jointly defending their joint interest.
Hence, applying the ratio of the aforesaid decision and taking into account C
the fact that the appellants/ the original defendants No. 1 and 2 despite
the death of original defendant No.3 defended the suit and preferred and
prosecuted the first appeal. Upon the death of the second appellant the
joint interest is being fully and substantially taken forward in this
proceeding as well by the first appellant along with the substituted legal
D
representatives of the deceased second appellant, we do not find any
reason to disagree with the conclusions and findings of the courts below
for rejecting the contention that suit ought to have held abated owing to
the non- substitution of all the legal heirs of deceased third defendant
against all defendants. For the same reason, the contention that the suit
was bad for non-joinder of necessary parties of all his legal heirs/ E
representatives also has to fail.
37. There is yet another reason why the contention that suit was
bad for non-joinder of necessary parties due to failure to bring on record
the legal representatives of the deceased third defendant Sri. Hanumaiah
should fail. We have already noted the case which the defendants sought F
to bring in, without taking up necessary pleadings in the written statement
filed in the suit. Relying on Exhibit D-1 it is contended that pursuant to
the agreement for sale of the suit schedule property executed in favour
of the first appellant herein/the first defendant jointly by Sriman Madhwa
Sangha and Sri Vittal Rao its possession was handed over to the first
appellant herein. We have already upheld its rejection by the High Court. G
However, what we are taking out of the said contention is that based on
the same the appellants cannot raise a ground of non-joinder of necessary
parties, as stated above, as the first appellant was arrayed as a party in
the very suit itself and he being the person in favour of whom the same
was allegedly executed. The contention raised based on Exhibit D-2 H
390 SUPREME COURT REPORTS [2023] 6 S.C.R.
A sale deed was also repelled by the High Court and we have also upheld
the same. We took note of the same again solely to stress upon the
position that the case built upon the same can in no way be the basis for
raising a contention of non-joinder of necessary party/parties. This is
because the deceased second appellant who was shown as the vendee
thereunder was the original second defendant in the suit. For the reasons
B
above also the contention of non-joinder of necessary parties must fail.
38. We have already found that the courts below are correct in
holding that the defendants did not have a case of ownership over the
suit schedule property and such a case sought to bring out based on
Exhibit D-2 was repelled by the High Court and we have upheld the
C same. They have also failed to establish any better claim for possession.
The finding of the High Court that any volume of evidence sans appropriate
pleadings would be no avail is the correct exposition of law. In the decision
in Duggi Veera Venkata Gopala Satyanarayana v. Sakala Veera
Raghavaiah and Anr.11, this Court agreed with the observation made
D in the earlier decision in Hasmat Rai & Anr. v. Raghunath Prasad12
that any amount of proof offered without pleadings is generally of no
relevance. 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 law
and reiterate the same.’ Further, it is also relevant to refer to paragraph
E 85.6 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 no
party can lead the evidence on an issue/point not raised in
the pleadings and in case, such evidence has been adduced
F or a finding of fact has been recorded by the court, it is just to
be ignored. Though it may be a different case where in spite
of specific pleadings, a particular issue is not framed and the
parties having full knowledge of the issue in controversy lead
the evidence and the court records a finding on it.”
G 39. In such circumstances, we have absolutely no hesitation to
hold that the original defendants failed to raise sufficient and appropriate
pleadings in the written statement that they have better right for
11
(1987) 1 SCC 254
12
(1981) 3 SCC 103
H 13
(2012) 8 SCC 148
SHIVSHANKARA & ANR. v. H.P. VEDAVYASA CHAR 391
[C. T. RAVIKUMAR, J.]
possession of the suit properties. No amount of proof offered without A
appropriate pleadings would have any relevance. The Courts below have
rightly relied on the evidence of PW-5 to hold forceful dispossession of
the defendants from ‘B’ schedule property. Nothing is on record to uphold
the said finding.
40. After considering and answering the questions, mentioned as B
above, we bestowed our anxious consideration to find whether the
impugned judgment is inflicted with perversity or any patent illegality
warranting interference in invocation of the power under Article 136 of
the Constitution of India. The sound reasons given by the courts below
persuade us to answer it in the negative. After carefully considering the
evidence on record the Trial Court arrived at the conclusion that the C
respondent herein/the plaintiff is entitled to get back the possession of
suit schedule property from which he was dispossessed and even after
careful consideration of the additional evidence recorded and transmitted
to the High Court by the trial court and considering all contentions and
aspects with reference to plethora of decisions the High Court only D
confirmed the judgment and decree of the trial court. As observed earlier,
when the concurrent findings of the courts below are the outcome of
the rightful consideration and appreciation of materials on record they
do not call for any interference.
41. Thus, taking into account the fact that the suit was indisputably E
filed based on prior permission and illegal dispossession we do not find
any reason to place Exhibit D-2 sale deed executed (even if by the
owners) in favour of the deceased second appellant to displace the
concurrent findings of the courts below on the entitlement of the
respondent herein/the plaintiff for a decree as granted by the trial court
and confirmed the High Court. In the said situation, this appeal has to F
fail. Consequently, it is dismissed. In the circumstances, there will be
no order as to costs.
Nidhi Jain Appeal dismissed.
(Assisted by : Rakhi, LCRA) G
H
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