ORDER
R. Gururajan, J.
1. R.F.A. No. 578 of 2000 is filed by the plaintiff-Venugopal and R.F.A. No. 584 of 2000 is filed by the defendant-Aswathamma challenging the judgment and decree passed in O.S. No. 7502 of 1980 on the file of the 14th Additional City Civil Judge, Bangalore.
2. Backdrop of the case:
Appellant/plaintiff filed a suit stating therein that premises in question originally bearing Municipal No. 186 later renumbered as Nos. 210, 211 and 212 and presently bearing Municipal Nos. 126, 126/1, 127 and 128 situated in 6th cross road, Gandhinagar, Bangalore belonged to the joint family of late Sri M. Munivenkatappa. The suit property i.e., one tenament in the ground floor is the northwest portion of the outhouse. It consisted of one hall, two rooms, a dining hall and a water closet. Defendant’s husband Venkataswamappa was related to the plaintiffs family. He was a partner in the business run by Munivenkatappa. The said business was closed. Defendant’s husband was employed by the firm M. Munivenkatappa and Company. On account of the relationship and service, plaintiffs grandfather had permitted Venkataswamappa to reside in the suit property right from the year 1945. He was living in the said house along with his wife who was the niece of plaintiffs grandfather. After her death, Venkataswamappa married the defendant. Venkataswamappa died in the year 1968. His wife and children were allowed to continue in the suit property. Presently, the step-children having moved out, defendant and her children are residing in the suit property.
2.1 Suit property and other properties belonged to a joint family of Munivenkatappa. The joint family properties were partitioned in the year 1969. The suit property fell to the share of the plaintiff. As the plaintiff was a minor, his father continued to manage the property till 1978. Plaintiffs father requested the defendant to vacate the premises. She refused to do so. A petition was filed in H.R.C. No. 3420 of 1975, which was dismissed holding that the Karnataka Rent Control Act, 1961 was not applicable; Hence a suit was filed seeking for declaration of title, possession and mesne profits. Defendant filed a written statement denying all the averments made in the plaint filed by the plaintiff Venugopal. It was further stated that even otherwise, the defendant and her sons have perfected their title to the suit property from being in continuous and exclusive possession and enjoyment of the suit house openly adverse to plaintiff and his ancestors for over a statutory period. In conclusion they want the suit to be dismissed.
2.2 The learned Trial Judge has framed as many as nine issues on 1-1-1982. Four witnesses were examined on behalf of the plaintiff and one witness was examined on behalf of the defendant. 80 documents were marked on behalf of the plaintiff and four documents were marked on behalf of the defendant. Learned Trial Judge heard the parties and thereafter has chosen to dismiss the suit as bad for non-joinder of necessary parties. This order is challenged by the plaintiff. Defendant, as I mentioned earlier, has filed others R.F.A No. 584 of 2000 and in the said appeal defendant has challenged the findings given by the learned Judge on issues 1 to 3, 5, 7 and 8. Both these appeals have been heard together and a common order is passed.
3. Rival contentions.-Sri Naganand, learned Senior Counsel for the appellant-Venugopal took me through the entire pleadings to invite my attention to the material facts to contend that the findings with regard to non-joinder of parties require my consideration. Learned Counsel says that all issues have been answered in his favour except the issue to reject his suit. However, the learned Counsel says that he has to argue all other issues as well in the light of a cross-appeal.
3.1 He states that on an earlier occasion an eviction petition was filed by the appellant against the defendant and the same came to be rejected on a technical ground resulting in this suit. He refers to oral and documentary evidence to say that the appellant is the owner of the property and there is acceptable evidence available on record with regard to his pleas. Learned Counsel says that the defendant cannot get any title or interest in respect of suit schedule property and no materials are placed before this Court warranting any finding in favour of the defendant. Learned Counsel says that as a matter of fact learned Trial Judge on an analysis of evidence passed an order in his favour. He supports the finding of the learned Trial Judge insofar as possession is concerned. Learned Counsel says that no acceptable material is placed with regard to adverse possession. He relies on several judgments to which I would be adverting to at the relevant paras in this order.
3.2 Per contra, Sri D.S. Sundaresh, learned Counsel for the defendant took me through the various material documents and the material evidence to contend that the plaintiffs have to stand on their own case and they cannot depend upon the case of the defendants. According to them, plaintiff has failed to establish the factum of absolute ownership in his favour. He says that the plaintiff has no title at all in terms of the material on record. He also took me through the evidence on record to contend that the defendant has perfected her title by way of adverse possession. The suit is also barred by time. He further says that the necessary parties are not before the Court. Therefore the learned Judge is justified in passing the impugned order.
4. After hearing the learned Counsel, I have carefully perused the material on record.
5. Issue 1. Title issue.-Issue 1 is with regard to proof by the plaintiff in the matter of title to the suit property. The same has been answered by the learned Judge in favour of the plaintiff. This has been challenged by the defendant by contending before me that the plaintiff has to stand or fall on his pleadings. Attention of the Court is invited to the contention of renewal of lease/licence in favour of the defendant. According to defendant, the licence was granted not by the plaintiff but by his grandfather in favour of defendant’s husband and on his death, the licence gets extinguished. Plaintiff claims the title on the basis of the partition between the parties in respect of the suit property. It is stated in the plaint that the suit property belonged to the joint family of Sri Munivenkatappa-plaintiffs grandfather and partition was effected in 1953 among the members of the joint family. The suit schedule property fell to the share of the plaintiffs father Krishnamurthy. There was a subsequent partition in the branch of Krishnamurthy and the suit property fell to the share of the present plaintiff, the son of Krishnamurthy. Partition deed is of the year 1969. There is no quarrel over this. What is contended before me is that this property does not belong to Sri Munivenkatappa at all in terms of the pleadings. Let me notice the evidence in this regard.
6. Plaintiff got himself examined as P.W. 1. He has stated in detail that the premises bearing Municipal Nos. 126, 126/1 and 128 belong to him. These properties are the joint family properties and he got a share in terms of the partition in 1969. He also stated that there was earlier partition in the family. He has stated that the defendant is the second wife of Venkataswamappa and he was his grandfather’s niece’s husband. The properties belonged to the Corporation of Bangalore and Munivenkatappa’s grandfather purchased the same in an auction. It was renumbered as 210 and 211. There is a main building consisting of two buildings and there is a outhouse. He has also stated that Venkataswamappa was a partner in business along with his grandfather and his grandfather had permitted Venkataswamappa to stay in the suit property. He died in 1968. His first wife’s son was paying the rents till 1978. He moved out of the suit property leaving behind the defendant and her children. Rent was demanded. On refusal, HRC case was filed and it was dismissed. Thereafter the present suit was filed. In cross-examination he has stated that he is not aware as to how many years Venkataswamappa was staying in the suit property. He has admitted that the Children and wife of Venkataswamappa are in possession of the suit property.
7. Plaintiffs father was examined as P.W. 2. He has stated that the property bearing No. 186 was purchased in an auction in the year 1940. There is a main building, in addition to a outhouse. He has stated that the defendant’s children are paying the rents. He has filed Ex. P. 31, the partition deed and he has also stated that his father was running a business. Husband of the defendant was assisting and he was looking after his business. Ex. P. 32 is another partition deed between P.W. 2 and his children. He has also stated that at the time of Ex. P. 32, plaintiff was a minor. In cross-examination it was elicited that the defendant and her three sons are residing in the suit property; that he has not tried to secure the document under which his father purchased the suit property in an auction; that he has got documents to show that the Old Site No. 186 corresponds to the present property that at the time of partition, the documents concerning to the properties were not given to the respective shareholders. He has seen Ex. D. 2 in which he has stated with regard to rent.
8. P.W. 3 is the son of Venkataswamappa. He has stated that himself and his brothers residing in the said house. His father died in 1988 and after his death, her children are residing in the house. Since 1972 he is residing in a separate house. His father was working with Munivenkatappa. The house was tenanted to his father by Munivenkatappa in 1986. He agreed to pay the rents to him. He has also stated that the property stands in the name of the plaintiff. Nothing has been elicited in the cross-examination.
9. D.W. 1 was examined and she has stated that premises bearing Nos. 125, 126 and 28 belong to Muniswamappa. Muniswamappa purchased the said property in an auction. After purchasing the vacant site, he constructed buildings comprising of six tenaments. Her husband Venkataswamappa was the younger brother of Muniswamappa. Her husband succeeded to the estate of Muniswamappa. After the death of Muniswamappa his properties were being managed by Krishnamurthy, the father of the plaintiff and her husband-Venkataswamappa. Muniswamappa and Munivenkatappa were doing business in partnership. After the death of Munivenkatappa his son Krishnamurthy was looking after the business and collecting rents from the tenants. Her husband was never into the management of the suit property. He was never in permissive possession. The suit property is not the ancestral property of plaintiffs father Krishnamurthy. In cross-examination she has stated that she is not aware of the change of property number. It is true that the number of the entire property was 186. She has never demanded rent from others. Muniswamappa himself had purchased the entire property. She has not paid the property tax in respect of the portion in her occupation. No application was filed seeking for katha.
10. Documents have been produced by the parties. Exs. P. 1 to P. 5 are katha in respect of this property. It relates to the years 1946-47 to 1951-52. It shows the name of Munivenkatappa as the owner of the property. For the years 1952-53 to 1956-57 name of Krishnamurthy is shown as the owner of the property. In 1962-63 and 1966-67 again the name of defendant’s father is shown. From 1967-68 to 1971-72 plaintiffs name is shown. In Exs. P. 6 to P. 12 are the revenue receipts and the plaintiffs name is shown as the owner. Ex. P. 14 is an acknowledgement issued in favour of the plaintiff. In Exs. P. 15 to P. 28 etc., in all these documents plaintiffs name is shown. Ex. P. 31 is the document of the year 1953 and it is a partition deed between the plaintiffs father and his grandfather. The suit schedule property is reflected in Schedule A as item No. 3. Ex. P. 32 is another partition deed between plaintiffs father and the plaintiff and as per the said partition, the present property fell to the share of the plaintiff. Exs. P. 33 to P. 43 are again the documents evidencing ownership of the plaintiff. Ex. P. 44 is a letter addressed to the Commissioner in which it is categorically stated that the property has been executed in favour of the father of Krishnamurthy. Ex. P. 45 is the document in which a reference is made with regard to the property. It is also seen that P.W. 3 had admitted tenancy in favour of the defendant. P.W. 4 has produced wealth tax returns in support of this property. In the evidence of D.W. 1 it is seen that she is not sure of the purchase and she has not stated that the suit property was purchased by her husband’s brother. She also admits that she has no documents in this regard. From the material on record what is clear to this Court is that the plaintiff has placed sufficient material on record to show the ownership in his favour. The material, tax paid receipts and the evidence of the plaintiff, supports the version of ownership in the case on hand. The learned Judge after noticing the material on record has chosen to answer issue 1 in the case on hand. He has noticed in his order that the property was purchased by Munivenkatappa and he was the kartha of the family. He notices Exs. P. 31 and P. 32 and he also notices the non-production of original sale deed by either of the parties. Thereafter he notices the partition deed of 1951 and other documents.
10.1 After noticing all these documents in my view, he has rightly answered the issue in favour of the plaintiff. Notwithstanding the serious argument of the defendant’s Counsel, I am unable to find myself persuaded that the defendant is the owner of the property in the given circumstances. As against the bulky documents and bulky evidence, no documents have been produced by the defendants in the matter of ownership. It is argued that the licence dies on the deaths of granter and grantee. The only document on which reliance is placed is Ex. D. 6. I must also notice at this stage, the earlier proceedings initiated by the . plaintiff under Rule 21(1)(a) of the KRC Act. In HRC case the learned Judge notices that the respondents and her children have continued to be in possession free of rent, the same being the manner in which the respondent’s husband was in occupation of the petition schedule premises. This order read in the light of the evidence on record would categorically point out that the plaintiff is the owner. The finding of the learned Judge is accepted. Learned Counsel for the respondent would say that this judgment cannot be taken advantage of by the respondents. Learned Counsel says that the facts of the case would show that on the date when the suit was filed there was no licence and that therefore the entire suit is based on misconception. Though this argument is attractive, the facts of the case compel me to hold against the defendant. There are several documents which I have referred to in my earlier paragraphs to show the ownership in favour of the plaintiff. Those documents date back to several years. In these circumstances, it cannot be said that the plaintiff is not the owner. In fact the learned Judge in the impugned order has referred to all these material facts and documents to hold against the defendant. This finding in my view is an acceptable finding based on facts.
11. Parties have placed before me various judgments in support of their respective submission.
11.1 Learned Counsel for the respondent relies on the judgment of the Supreme Court in Smt. Isabella Johnson v. M.A. Susai (dead) by L.Rs, with regard to his submission that a Court having no jurisdiction cannot confer such jurisdiction by applying the principle of res judicata. Learned Counsel says that the order in the earlier tenancy proceedings cannot be relied upon in the light of this judgment. This judgment is not available to the respondent because in the case on hand, the ownership issue is not decided only on the order passed by the earlier tenancy Court but on the entire earlier material on record including the supportive material of the tenancy Court order.
11.2 State of Himachal Pradesh v. Keshav Ram and Ors., , is pressed into service. This judgment rules that entry in revenue record cannot form the basis for declaration of title. In the case on hand, the title is not based only on entry (sic) but in the light of voluminous evidence based on record. This judgment is not available in the given circumstances to the defendant.
11.3 At this stage, I must also notice the conduct of the defendant in the case on hand. Learned Judge has rightly noticed that if the defendants were really claiming ownership they would not have kept quite till this length of time. After noticing the conduct and the material evidence, learned Judge has rightly ruled issue 1 in affirmative.
12. Permissive possession.-The next issue is with regard to permissive possession in the case on hand. Learned Judge has noticed that defendant, her husband and Munivenkatappa were in permissive possession of the suit property. Let me see as to whether the defendant has placed any material to show that her possession is referable to the property in question. The evidence of the defendant respondent in the light of the evidence of the plaintiff would show that no acceptable material was placed to show that any right flows in favour of the defendant in the matter of the property. In fact the learned Judge has noticed the evidence of P.Ws. 2 and 3 and Exs. P. 21 and P. 22 in the case on hand. After noticing the various material facts the learned Judge in my view has rightly come to a conclusion that the only inference that could be drawn is that it is nothing but permissive possession in the case on hand. I accept the finding of the learned Judge in this regard.
12.1 Learned Counsel for the defendant relies on the judgment of the Madras High Court in Chinnan and Ors. v. Ranjithammal, AIR 1931 Mad. 216 (DB), with regard to tenancy coming to an end. In the case on hand, the material facts would show that the respondent-defendant was in permissive possession of the property and that therefore the judgment may not be of any help to the defendant.
13. Adverse possession.-Issue 7 deals with adverse possession. In terms of the pleadings of the parties, learned Judge has answered issue 7 in negative. Let me see as to whether this finding is acceptable or not in the case on hand.
13.1 Adverse possession is always held to be a question of fact based on pleadings and evidence. Plaintiff/appellant has chosen to seek for declaration and for various other reliefs. The defendant has chosen to say that she along with her sons have perfected their title to the suit property from being in continuous and exclusive possession and enjoyment of the suit house openly adverse to plaintiff and his ancestors for over a statutory period. It is seen from the order of the learned Judge that the learned Judge has chosen to hold that relevant factors are totally lacking in the written statement. As I mentioned earlier, adverse possession has to be pleaded with relevant facts. Sufficient evidence is not placed before the Court to show as to how the possession is adverse in this case. This Court in G. Govindappa (dead) by L.Rs v. Tayamma (dead) by L.Rs, has noticed that in the event of failure of the plaintiff to prove the theory of permissive possession and in the event of defendant’s substantially establishing the continuous uninterrupted possession, the plea of adverse possession is available. In the case on hand, I have already accepted that the defendants are in permissive possession and I accepted the finding that there is no acceptable evidence forthcoming with regard to adverse possession. In these circumstances, the judgment in G. Govindappa’s case, comes to the help of the appellant.
13.2 Learned Counsel for the appellant refers to a judgment of the Supreme Court in Annasaheb Bapusaheb Patil and Ors. v. Balwant alias Balasaheb Babusaheb Patil (dead) by L.Rs, in support of his contention. The Superme Court has ruled that if possession is referable to lawful title then it cannot be termed as adverse possession in the eye of law. The Supreme Court ruled in paras 12 and 13 as under:
“Adverse possession means a hostile assertion i.e., a possession which is expressly or impliedly in denial of title of the true owner. Under Article 65, burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e., possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. Where possession could be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another’s title. One who holds possession on behalf of the another, does not by mere denial of that other’s title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all”.
13.3 In the light of this judgment and in the light of the material available on record, I am of the view that the learned Judge is right in rejecting the plea of adverse possession as claimed by the defendant.
14. Non-joinder of parties.-Issue 6 deals with non-joinder of necessary parties for the reasons stated in para 9 of the written statement. Learned Judge has answered this issue in affirmative and thereafter he has chosen to dismiss the suit. Elaborate arguments have been advanced on this issue. Admitted facts would show that the plaintiff/appellant is seeking for possession in addition to declaration in the case on hand. Several defences have been raised by the defendant and one such defence is that her children are also necessary and proper parties to the suit. In the light of this defence, learned Judge has rightly framed an issue at issue 6. The learned Judge after noticing the defence observed that the Court is not in a position to pass a decree of eviction which can also be executed against defendant’s three sons. Let me see as to whether non-inclusion of defendant’s three sons would be fatal to the case on hand.
14.1 Learned Judge has already given a finding with regard to ownership and with regard to permissive possession which I have accepted in my earlier findings. The mere fact that the respondent-defendant living with her sons by itself would not result in creation of any legal right in the absence of any proof of title being available in favour of the sons. In fact sons have not opposed the suit. The learned Judge has rejected the suit only on the ground that the decree could not have been executed in the absence of the sons.
14.2 In this connection, I must refer to a judgment of the Supreme Court in Vaneet Jain v. Jagjit Singh, . The Supreme Court in that case was considering the binding effect of a decree in case of a joint tenancy. The Supreme Court in para 11 ruled as under.
“The question that arises for consideration in such cases is whether the tenancy is joint or separate. In the former case notice on any one of the tenants is valid and a suit impleading one of them as a defendant is maintainable. A decree passed in such a suit is binding on all the tenants. Determination of the question depends on the facts and circumstances of the case. No flexible rule or straitjacket formula can be laid down for the purpose. Therefore, the case in hand is to be decided in the facts and circumstances thereof.”
14.3 This Court in Dr. R.R. Khanolkar v. Kumari Madhavi Arun Kamath and Ors., 1997(1) Kar. L.J. 422 has considered eviction in terms of Sections 34 and 35 of the Specific Reliefs Act. This Court ruled that when a person has no independent status as a tenant, and is enjoying the premises in the tenancy created in favour of the tenant he has no independent right regarding tenancy and he is bound by the eviction order passed against the tenant. This Court also noticed that the decree of eviction passed against the tenant would bind his/her children and they cannot resist execution of decree by instituting a suit for declaration of title and injunction, claiming independent right to tenancy. In the case on hand, I have already ruled that the defendant is in permissive possession of the property. When the rightful owner wants the premises, the same cannot be resisted on the ground of non-joinder of the parties in the absence of any independent right flowing in favour of those parties. No right flows in favour of defendant’s children in the case on hand.
14.4 I must also refer to another judgment of the Bombay High Court in Vyankatesh Dhonddev Deshpande v. Sou. Kusum Dattatraya Kulkarni and Ors., (DB) in the said case, Court was considering the issue of non-joinder of parties and it has ruled in para 48 as under:
“It was contended by Mr. Rane that as the main relief in the suit was based on setting aside the auction sale held by the Revenue Authorities, the Government of Maharashtra was a necessary party to the present suit. It is however, well-established that where the plaintiffs can obtain complete and effective relief from the Court in respect of the subject-matter in dispute against a party, it is not necessary to joint any other party, whether it is Government or others.”.
14.5 Learned Counsel for the appellant invites my attention to State of Himachal Pradesh and Ors. v. Kailash Chand Mahajan and Ors., and in the said case Court has considered the issue of necessary parties. The Court noticed that non-impleading of one Sri Chouhan and thereafter the Court holds that the failure to implead Sri Chouhan does not affect the maintainability of the writ petition.
14.6 In Sarvinder Singh v. Dalip Singh and Ors., , the Supreme Court has ruled as under:
“A necessary party is one whose presence is absolutely necessary and without whose presence the issue cannot effectually and completely be adjudicated upon and decided between the parties. A proper party is one whose presence would be necessary to effectually and completely adjudicate upon the disputes. The respondents cannot be said to be either necessary or proper parties to the suit in which the primary relief was found on the basis of the registered Will executed by the appellant’s mother. The respondents could not challenge legality or validity of the said Will”.
14.7 In the case on hand, the primary relief is against the defendant and that therefore the non-joinder of the sons would not come in the way of affecting the case of the plaintiff in the given circumstances.
14.8 In the light of these judgments and in the given circumstances, it cannot be said that the decree cannot be enforced against other persons as rightly argued by Sri Naganand, learned Senior Counsel. The finding of the learned Judge in this regard requires reversal and I do so in the case on hand.
15. Issue 3 deals with vacant possession. In the light of my earlier findings, I have accepted the finding of the learned Judge on issue 3. Plaintiff in the given circumstances and in the light of a finding in his favour is entitled for vacant possession as rightly held by the learned Judge.
16. Issue 4 deals with the claim of the plaintiff for past mesne profits in the case on hand. The learned Judge has noticed the material facts to negative this plea. I agree with the findings recorded in para 45 of the impugned order in the case on hand.
17. Insofar as issue 5 is concerned, with regard to the future mesne profits, the learned Judge has observed that the plaintiff is entitled for future mesne profits in terms of the findings in para 46 of the impugned order. No arguments are placed by the parties.
18. Conclusions.- This Court cannot but notice that the appellant is fighting this litigation for decades. Earlier this appellant filed HRC Case No. 3420 of 1975 and that case was disposed of on 26-6-1979. Thereafter, the present suit is filed in the year 1980 and the Trial Court disposed of the suit after 20 long years vide its order dated 16-2-2000. The age of the case shows the slow moving of the wheel of justice. Time has come for this Court to remind all those in charge of administration of justice to move faster.
19. In the result, this appeal is allowed. The order of the learned Trial Judge on issue 8 is set aside. Cross-appeal filed by the respondent-plaintiff is rejected. Suit is decreed in its entirety. On the peculiar facts of this case, parties are to bear their respective costs.