1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 5th DAY OF NOVEMBER, 2012 BEFORE THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI R.F.A.No.728 OF 2009 C/W. R.F.A.Nos.783/2009 & 777/2009 RFA No. 728/2009 BETWEEN: Sri [ENTITY], Aged about 67 years, S/o Late [ENTITY], R/at 137, Commercial Street, Bangalore. Appellant (By Sri [ENTITY], Senior Counsel) AND: 1. Sri [ENTITY], Since deceased by his LRs. 1(a) Smt.[ENTITY], W/o [ENTITY], Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore - 560 027. 2 Represented by [ENTITY] Sri [ENTITY], Rest - do - 1(b) Sri [ENTITY], S/o Late [ENTITY], Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore - 560 027. Represented by [ENTITY] Sri [ENTITY], Major, Rest - do - 1(c) Sri [ENTITY], S/o Late [ENTITY], Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore - 560 027. Represented by [ENTITY] Sri [ENTITY], Major, Rest - do - 1(d) Sri [ENTITY], S/o Late [ENTITY], Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore - 560 027. Represented by [ENTITY] Sri [ENTITY], Major, Rest - do - 1(e) Sri [ENTITY], S/o Late [ENTITY], Major, R/at No.367, Akkithimmanahalli, 3 Shanthinagar, Bangalore - 560 027. Represented by [ENTITY] Sri [ENTITY], Major, Rest - do - 1(f) Sri [ENTITY], S/o Late [ENTITY], Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore - 560 027. Represented by [ENTITY] Sri [ENTITY], Major, Rest - do - 1(g) Sri [ENTITY], S/o Late [ENTITY], Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore - 560 027. Represented by [ENTITY] Sri [ENTITY], Major, Rest - do - 1(h) Sri [ENTITY], S/o Late [ENTITY], Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore - 560 027. Represented by [ENTITY] Sri [ENTITY], Major, Rest - do - 2. Sri [ENTITY], Major, R/at No.367, Akkithimmanahalli, 4 Shanthinagar, Bangalore - 560 027. Represented by [ENTITY] Sri [ENTITY], Major, Rest - do - 3. Smt.[ENTITY], Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore - 560 027. Represented by [ENTITY] Sri [ENTITY], Major, Rest - do - 4. Smt. [ENTITY], Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore - 560 027. Represented by [ENTITY] Sri [ENTITY], Major, Rest - do - 5. Sri [ENTITY], S/o Late [ENTITY], Aged about 60 years, R/at No.172, Narayan Pillai Street, Bharathinagar, Bangalore - 560 001. 6. Smt.[ENTITY], W/o Late [ENTITY], Dead by her LR., 6(a) Mr.[ENTITY], S/o Late [ENTITY], Age 40 years, R/o #7/4, Desai Colony, III Street, 5 Perambur High Road, Chennai - 600 012. 6(b) Mrs.[ENTITY], Major, D/o Late [ENTITY]. 6(c). Mrs.[ENTITY] D/o Late [ENTITY], 6(a) to 6(c) are R/o No.118, Avadhana Pappiya Road, (A.P. Road), Choolai, Chennai - 600 112. 7. Smt.[ENTITY], D/o Late [ENTITY], Aged about 42 years, R/at No.137, Commercial Street, Bangalore - 560 001. Respondents (By Sri [ENTITY], Senior Counsel for Sri [ENTITY], Advocate for Legal Axis for R1(a-h) & R2-R4: Sri [ENTITY], Advocate for R5: Sri [ENTITY], Senior Counsel for R6(c) & R8: Sri [ENTITY], Advocate for R6(b): R6(a) and R-7 are served but unrepresented) This RFA is filed under [SECTION] of [ACT], against the judgment and decree dated 30.06.2009 passed in [CASE NUMBER] on the file of the XXVI Addl. City Civil Judge, Mayo Hall, Bangalore City, decreeing the suit for ejectment and etc. 6 [CASE NUMBER] BETWEEN: 1. Mr.[ENTITY], S/o Late [ENTITY], Age: 40 years, R/o # 7/4, Desai Colony, III Street, Perambur High Road, Chennai - 600 012. 2. Smt.[ENTITY], D/o Late [ENTITY], Aged about 42 years, R/a No.137, Commercial Street, Bangalore - 560 001. Appellants (By Sri [ENTITY], Advocate) AND: 1. Sri [ENTITY], Since deceased by his LRs. 1(a) Smt.[ENTITY], W/o [ENTITY], Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore - 560 027. Represented by [ENTITY] Sri [ENTITY], Rest - do - 7 1(b) Sri [ENTITY], S/o Late [ENTITY], Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore - 560 027. Represented by [ENTITY] Sri [ENTITY], Major, Rest - do - 1(c) Sri [ENTITY], S/o Late [ENTITY], Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore - 560 027. Represented by [ENTITY] Sri [ENTITY], Major, Rest - do - 1(d) Sri [ENTITY], S/o Late [ENTITY], Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore - 560 027. Represented by [ENTITY] Sri [ENTITY], Major, Rest - do - 1(e) Sri [ENTITY], S/o Late [ENTITY], Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore - 560 027. Represented by [ENTITY] Sri [ENTITY], Major, Rest - do - 8 1(f) Sri [ENTITY], S/o Late [ENTITY], Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore - 560 027. Represented by [ENTITY] Sri [ENTITY], Major, Rest - do - 1(g) Sri [ENTITY], S/o Late [ENTITY], Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore - 560 027. Represented by [ENTITY] Sri [ENTITY], Major, Rest - do - 1(h) Sri [ENTITY], S/o Late [ENTITY], Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore - 560 027. Represented by [ENTITY] Sri [ENTITY], Major, Rest - do - 2. Sri [ENTITY], Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore - 560 027. Represented by [ENTITY] Sri [ENTITY], Major, Rest - do - 9 3. Smt.[ENTITY], Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore - 560 027. Represented by [ENTITY] Sri [ENTITY], Major, Rest - do - 4. Smt. [ENTITY], Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore - 560 027. Represented by [ENTITY] Sri [ENTITY], Major, Rest - do - 5. Sri [ENTITY], Aged about 67 years, S/o Late [ENTITY], R/at No.137, Commercial Street, Bangalore. 6. Sri [ENTITY], S/o Late [ENTITY], Aged about 60 years, R/at No.172, Narayan Pillai Street, Bharathinagar, Bangalore - 560 001. 7. Mrs.[ENTITY], Major, D/o Late [ENTITY] 8. Mrs.[ENTITY] D/o Late [ENTITY], 10 Respondents 7 & 8 are R/o No.118, Avadhana Pappiya Road, (A.P. Road), Choolai, Chennai - 600 112. Respondents (By Sri [ENTITY], Senior Counsel for Sri [ENTITY], Advocate for Legal Axis for R1(a-h) & R2-R4; Sri [ENTITY], Senior Counsel for R5; Sri [ENTITY], Advocate for R6; Sri [ENTITY], Advocate for R7; Sri [ENTITY], Advocate for R8) This RFA is filed under [SECTION]/[SECTION] of [ACT], against the judgment and decree dated 30.06.2009 passed in [CASE NUMBER] on the file of the XXVI Addl. City Civil Judge, Mayo Hall, Bangalore City, decreeing the suit for ejectment and etc. [CASE NUMBER] Between: Smt. [ENTITY], Aged about 48 years, W/o Anand, R/at No.13, 2nd Cross Street, 3rd Circular Road, JAwaharnagar, Chennai. Appellant (By Sri [ENTITY], Advocate) AND: 1. Sri [ENTITY], Since deceased by his LRs. 11 1(a) Smt.[ENTITY], W/o [ENTITY], Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore - 560 027. Represented by [ENTITY] Sri [ENTITY], Rest - do - 1(b) Sri [ENTITY], S/o Late [ENTITY], Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore - 560 027. Represented by [ENTITY] Sri [ENTITY], Major, Rest - do - 1(c) Sri [ENTITY], S/o Late [ENTITY], Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore - 560 027. Represented by [ENTITY] Sri [ENTITY], Major, Rest - do - 1(d) Sri [ENTITY], S/o Late [ENTITY], Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore - 560 027. 12 Represented by [ENTITY] Sri [ENTITY], Major, Rest - do - 1(e) Sri [ENTITY], S/o Late [ENTITY], Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore - 560 027. Represented by [ENTITY] Sri [ENTITY], Major, Rest - do - 1(f) Sri [ENTITY], S/o Late [ENTITY], Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore - 560 027. Represented by [ENTITY] Sri [ENTITY], Major, Rest - do - 1(g) Sri [ENTITY], S/o Late [ENTITY], Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore - 560 027. Represented by [ENTITY] Sri [ENTITY], Major, Rest - do - 1(h) Sri [ENTITY], S/o Late [ENTITY], Major, R/at No.367, Akkithimmanahalli, Shanthinagar, 13 Bangalore - 560 027. Represented by [ENTITY] Sri [ENTITY], Major, Rest - do - 2. Sri [ENTITY], Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore - 560 027. Represented by [ENTITY] Sri [ENTITY], Major, Rest - do - 3. Smt.[ENTITY], Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore - 560 027. Represented by [ENTITY] Sri [ENTITY], Major, Rest - do - 4. Smt. [ENTITY], Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore - 560 027. Represented by [ENTITY] Sri [ENTITY], Major, Rest - do - 5. Sri [ENTITY], Aged about 67 years, S/o Late [ENTITY], R/at No.137, Commercial Street, Bangalore. 6. Sri [ENTITY], 14 S/o Late [ENTITY], Aged about 60 years, R/at No.172, Narayan Pillai Street, Bharathinagar, Bangalore - 560 001. 7. Smt.[ENTITY], W/o Late [ENTITY], Dead by her LRs. 7(a) Mr.[ENTITY], S/o Late [ENTITY], Age: 40 years, R/o # 74, Desai Colony, III Street, Perambur High Road, Chennai - 600 012. 7(b). Mrs.[ENTITY] D/o Late [ENTITY], 7(a) & 7(b) are R/o No.118, Avadhana Pappiya Road, (A.P. Road), Choolai, Chennai - 600 112. 8. Smt.[ENTITY], D/o Late [ENTITY], Aged about 42 years, R/at No.137, Commercial Street, Bangalore - 560 001. Respondents (By Sri [ENTITY], Senior Counsel for Sri [ENTITY], Advocate for Legal Axis for R1 (A to H) & R2-R4; Sri [ENTITY], Senior Counsel for R5; Sri [ENTITY], Advocate for R6; 15 Sri [ENTITY], Advocate for R7(a) & R8; Sri [ENTITY], Advocate for R7(b This RFA is filed under [SECTION]/[SECTION] of [ACT], against the judgment and decree dated 30.06.2009 passed in [CASE NUMBER] on the file of the XXVI Addl. City Civil Judge, Mayo Hall, Bangalore City, decreeing the suit for ejectment and etc. These RFAs is coming on for final hearing this day, Court delivered the following: JUDGMENT
All these appeals are directed against the judgment and decree, dated 30.06.2009 passed by the Court of the XXVI Addl. City Civil and Sessions Judge, Mayo Hall, Bangalore, in [CASE NUMBER].
2. The parties are referred to as per their ranks in the Trial Court. The four plaintiffs filed the suit agaisnt the four defendants seeking a direction to the defendants to vacate and deliver the vacant possession of the suit schedule premises to the plaintiffs.
3. The case of the plaintiffs in brief is that they are the joint owners of the suit property. The suit property fell to share of one Sri [ENTITY] in the family partition. He sold the same to [ENTITY] and Smt.[ENTITY] on 30.07.1993. Thereafter the plaintiffs purchased it from [ENTITY] and Smt.[ENTITY] by two registered sale deeds, dated 01.09.1993 and 07.11.1998. On purchasing the suit schedule property, the plaintiffs got the khatha transferred to their names. They intimated the defendants of their purchasing the properties by issuing the notice, dated 16.11.1998.
4. The defendants' father Sri [ENTITY] was the tenant under the previous owner/landlord Sri [ENTITY]. The defendants committed default in the payment of the monthly rents of `40/-. The plaintiffs filed the [CASE NUMBER] under [SECTION] of the [ACT] for short). As the [ACT] came to be replaced by the [ACT] with effect from 31.12.2001 and as the suit property consists of 14 square meters of non-residential premises, the said H.R.C. petition came to be dismissed as not maintainable by the Court of Small Causes, by its order, dated 17.04.2002. Thereafter, the plaintiffs issued the legal notice, dated 26.06.2002 under [SECTION] of the [ACT] (for short, '[ACT]') and on the failure of the defendants to comply with the demand contained in the legal notice, the plaintiffs instituted [CASE NUMBER] seeking the ejectment of the defendants from the suit schedule property.
5. The defendant No.1 filed the elaborate written statement contending that the suit is not maintainable. The schedules and boundaries in the alleged sale deeds do not tally, the alleged malafides against the plaintiffs. The sale transactions were termed as fraudulent. [ENTITY] could not have validly conveyed the suit schedule property. The first defendant claimed independent title and exclusive possession of the commercial premises bearing No.137, Commercial Street, Civil Station, Bangalore. He emphatically denied that his father [ENTITY] was the tenant.
6. The defendant No.2 filed the written statement taking the plea that the suit is hit by res-judicata. Mr.[ENTITY] had filed [CASE NUMBER] against the defendants' father, [ENTITY] and obtained the eviction decree. The said [ENTITY] impugned the eviction decree by filing [CASE NUMBER] before this Court. This Court while upholding the eviction decree, reserved the right to [ENTITY] to re-enter the suit schedule premises. The said [ENTITY] did not put up any building. He had also stopped collecting the rents from the defendants. Only to overcome the said order passed by this Court in [CASE NUMBER], the suit property is sold to the plaintiffs. The defendants have perfected their title by adverse possession.
7. The defendant Nos. 3 and 4 filed the written statement taking the stand that the plaintiffs are not the owners of the suit schedule property. The said [ENTITY] had no right, title or interest in the suit schedule property. As he had no valid title to the suit schedule property, the sale deeds executed by him can have no validity at all. They averred that they did not receive any notice from the plaintiffs either on 16.11.1998 or on any other day. As there is no landlord - tenant relationship, the question of their paying the rent would not arise at all.
8. Based on the rival pleadings, the Trial Court formulated the following issues and additional issues:
(i) Does plaintiffs prove that they are the joint owners of the schedule property?
(ii) Does plaintiffs further prove that the defendants' father Sri [ENTITY] was tenant of schedule premises under previous owner Sri [ENTITY] and defendants being the L.Rs. of original tenant continued tenancy?
(iii) Does plaintiff further prove that the defendants are defaulters in paying rentals as pleaded in para No.9 of the plaint?
(iv) Does plaintiff prove termination of tenancy?
(v) Does defendants prove that the suit is hit by principles of resjudicata in view of orders in [CASE NUMBER]?
(vi) Whether plaintiff is entitled for suit claim?
(vii) What order and decree?
Additional Issues:
(i) Whether the defendants prove that they have acquired the title to the property adverse to the interest of the plaintiffs?
(ii) Whether in view of the death of [ENTITY], all the L.Rs. of [ENTITY] are entitled to be brought on record in terms of Muslim Personal (Sunni) Law, whether the suit survives for consideration or not?
9. On behalf of the plaintiffs, their General Power of Attorney holder, [ENTITY] is examined as PW1 marking the documents at Exs.P1 to P45. On the defendants' side, the second defendant is examined as DW1, the defendant No.1 is examined as DW2, the son of the first defendant is examined as DW3. The first defendant's co-worker in the suit property is examined as defendant No.4. The defendant No.4 is examined as DW4(a). The defendant No.3 (a) is examined as DW5. Seven documents are marked in Ex.D series.
10. Considering the pleadings, oral and documentary evidence placed on its record, the Trial Court answered the contentious issues in favour of the plaintiffs and decreed the suit by directing the defendants to vacate and deliver the vacant possession of the suit schedule property to the plaintiffs within one month. Liberty was also reserved to the plaintiffs to apply for mesne profits for the period starting from the date of the institution of the suit till the date of handing over of the possession of the schedule premises. It is this judgment, which is being assailed in these appeals.
11. [CASE NUMBER] is filed by the first defendant. [CASE NUMBER] is filed by the defendant Nos. 3(a) and 4 and [CASE NUMBER] is filed by the defendant No.3(b).
12. Sri [ENTITY], the learned counsel appearing for the appellant in [CASE NUMBER] submits that the suit filed by the plaintiffs for ejecting the defendants was not at all maintainable. According to him, the only course open to the plaintiffs was to continue the execution proceedings for enforcing the eviction decree granted in [CASE NUMBER] as modified in [CASE NUMBER]. In support of his submissions, he read out para 15 of the Apex Court's judgment in the case of [PRECEDENT]. The said paragraph is extracted hereinbelow:
"15. It is clear, therefore, that if after the filing of an execution petition in time, the decree holder dies and his legal representatives do not come on record or the judgment debtor dies and his legal representatives are not brought on record, then there is no abatement of the execution petition. If there is no abatement, the position in the eye of law is that the execution petition remains pending on the file of the Execution Court. If it remains pending and if no time limit is prescribed to bring the legal representatives on record in execution proceedings, it is open in case of death of the decree holder, for his legal representative to come on record at any time. The execution application cannot even be dismissed for default behind the back of the decree holder's legal representatives. Incase of death of the judgment debtor, the decree holder could file an application to bring the legal representatives of the judgment debtor on record, at any time. Of course, in case of death of judgment-debtor, the Court can fix a reasonable time for the said purpose and if the decree holder does not file an application for the aforesaid purpose, the Court can dismiss the execution petition for default. But in any event the execution petition cannot be dismissed as abated. Alternatively, it is also open to the decree holder's legal representatives, to file a fresh execution petition in case of death of the decree holder; or, in case of death of the judgment debtor, the decree holder can file a fresh execution petiton impleading the legal representatives of the judgment debtor; such a fresh execution petition, if filed, is, in law, only a continuation of the pending execution petition - the one which was filed in time by the decree holder initially. This is the position under the [ACT]."
13. Sri [ENTITY] submits that the entire suit proceedings including the adducing of evidence have proceeded on the footing that the lease is subsisting and that it is continued from time to time, which is factually incorrect. As of now, there is no jural relationship of landlord and tenant between the plaintiffs and defendants. The landlord - tenant relationship has come to an end with the decreeing of the eviction petition on 16.6.1976 in [CASE NUMBER].
14. Alternatively, it was open to the plaintiffs to file fresh execution petition for enforcing the said eviction order. In support of his submissions, Sri [ENTITY] relied upon the Apex Court's judgment in the case of [PRECEDENT], wherein it is held that once the decree holder transfers his interest in the decree, the transferee can move for the execution of the decree.
15. As the execution proceedings were not continued and as no fresh execution petition came to be filed within the prescribed period of limitation, the suit ought to have been dismissed, so contends the learned counsel.
16. Once the notice is served determining the tenancy or indicating the intention to vacate the tenanted premises on the expiry of the period shown in the notice, the tenancy comes to an end. If the tenancy arrangement is to be restored, it can only be with the consent of both the parties. For making this submission, the learned counsel relies on the Apex Court's judgment in the case of CALCUTTA CREDIT CORPORATION LTD. AND ANOTHER v. HAPPY HOMES (PRIVATE) LTD., reported in [CASE NUMBER].
17. As the plaintiffs are the pendente-lite purchasers, they are bound by the result of the decree. For canvassing this point, the learned counsel relies on the Apex Court's judgment in the case of [PRECEDENT].
18. The learned counsel submits that the decree obtained in [CASE NUMBER], as modified in [CASE NUMBER], is saved by virtue of the provisions contained in [SECTION] of the [ACT]. In this regard, he relies on the Full Bench Decision of the Apex Court in the case of [PRECEDENT].
19. He would contend that if the possession is not recovered within 12 years from the date of the decree, the right of the landlord to recover the possession is barred as per [SECTION] of the [ACT]. He submits that going by the plaintiffs' own version, the defendants have been squatting on the property in question even after the passing of the eviction decree. The plaintiffs were not even collecting the rents. Under these circumstances, there was no landlord - tenant relationship and that therefore, the question of issuing the notice under [SECTION] of the [ACT] would not arise. He relied on the following authorities in this regard:
i) 1946 MLJ Reports 123 - Subbalakshmma vs. Seetharamaiah.
ii) AIR 1964 MP 207 - Shri [ENTITY] idol at Bandhaivapura, Gohalpur, Isbalpur and another vs. Desai, S/o.Matadin and others.
iii) [PRECEDENT] (PC) - Mohunt Bhugwan Ramanuj Das vs. Ramakrishna Bose and another.
iv) 1913 Vol.XIX 853 - [PRECEDENT].
20. The learned counsel submits that the damages/mesne profits cannot be awarded, if there is no specific prayer for the same. In support of his submissions, he relied on the following authorities:
[PRECEDENT] - [PRECEDENT] - [PRECEDENT]
21. He also relies on the Apex Court's judgment in the case of [PRECEDENT] for advancing the contention that no decree for damages can be awarded for the period anterior to the passing of eviction decree.
22. The learned counsel sums up his arguments submitting that the suit for ejectment is incompetent and without the authority of law. The only course open to the plaintiffs on their purchasing the property during the pendency of the execution petition was to move an application for the continuation of the execution proceedings. Since the execution proceedings have been abandoned, the suit for ejectment is not maintainable.
23. Sri [ENTITY], the learned counsel for the appellant in [CASE NUMBER] submits that the suit for possession by the landlord filed beyond the period of 12 years is barred by limitation. The landlord's right may be subsisting but the remedy is lost. He submits that the abandonment of the [CASE NUMBER] is binding on the plaintiffs also. The learned counsel submits that a separate suit was not maintainable on the first defendant resisting and obstructing the execution proceedings.
24. To buttress his submission that the plaintiffs have lost the right to recover the possession of the suit property, he read out para 7 of the decision of Punjab and Haryana High Court in the case of [PRECEDENT], which is extracted hereinbelow:
"7. [SECTION] of the [ACT] equivalent to [SECTION] of the [ACT] provides a period of 12 years for filing a suit for possession by the landlord against a tenant who continues to remain in possession of the land after determination of the lease. The lease was determined after the eviction order was passed. The tenants continued to remain in possession thereafter as found by the Courts below which is a finding of fact and not open to challenge, in second appeal. Even otherwise, this finding was not assailed by the learned counsel for the defendants for the reason that his clients were in possession although the finding recorded by the Courts below is to the contrary. In the instant case, the defendant-landlords did not file a suit for possession within a period of 12 years from the date of eviction order. Thus, their right to recover possession of the land has been lost by lapse of time. The landlords' right may be subsisting but remedy has been lost. They cannot have the legal recourse to recover the possession."
25. Sri [ENTITY] seriously disputes the service of notice under [SECTION] of the [ACT]. He has also raised the issue of incompetence of the plaintiffs' GPAs. (General Power of Attorney) holder to give the evidence, as he has no personal knowledge of the developments in respect of the suit schedule properties. He read out para 13 of the Apex Court judgment in the case of [PRECEDENT]. The same is extracted hereinbelow:
"13. [SECTION], [ACT], empowers the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts" employed in [SECTION], [ACT] confines only in respect of "acts" done by the power of attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some "acts" in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined."
26. Sri [ENTITY], the learned counsel appearing for the appellants in [CASE NUMBER] submits that the only course open to the pendente-lite transferee was to continue the execution proceedings.
27. Sri [ENTITY], the learned Senior Counsel appearing for Sri [ENTITY] for the respondent-landlords submits that lot many arguments are being raised for the first time in these appeal proceedings without there being any foundations for the same in the pleadings. None of the contentions urged on behalf of the appellants like the respondent-landlords' only remedy is to continue or to file fresh execution case and no fresh suit for eviction is maintainable, the suit is barred by limitation as per [SECTION] of the [ACT], etc., are whispered in their respective written statements. He relies on the Apex Court's judgment in the case of [PRECEDENT], wherein it is held that a decision of a case cannot be based on the grounds outside the pleadings of the parties. For advancing the submission that the pleadings are the foundations of litigation, he relies on the Apex Court's judgment in the case of [PRECEDENT] REPRESENTED BY ITS PRESIDENT AND OTHERS reported in (2012) 6 SCC
28. Sri [ENTITY] brings to my notice the affidavit evidence of the appellant. In para 7 of the affidavit evidence, he has this to say: "I humbly submit that my father [ENTITY] used to pay `40/- rents per month". He sought to draw support from the Apex Court's judgment in the case of [ENTITY] vs. HARIJAN SEWAK SANGH AND OTHERS reported in (2012) 6 SCC 460 wherein the prolonging of litigation by the L.Rs. of the deceased employee of the society was deprecated. He has also relied on the Hon'ble Supreme Court's decision in the case of [PRECEDENT], wherein it is held that a tenant cannot question the landlord's title, however deficient it may be, without surrendering the possession of the property to the landlord.
29. He submits that the facts of the reported cases, relied upon by the appellants' side, are entirely different from the facts of the case on hand.
30. The learned Senior Counsel submits that the passing of a decree under [SECTION] of the [ACT] does not result in the termination of landlord - tenant relationship. The Execution Court has not treated the first defendant (appellant in [CASE NUMBER]) as an obstructor. Neither the first defendant nor any other defendant nor any party has filed an application under [SECTION] of [ACT]
31. At this juncture, Sri [ENTITY] seeks leave of the Court to make certain rejoinder submissions.
32. Sri [ENTITY] submits that the plaintiffs have to stand on their own strength and not on the weakness in the case of the defendants. He submits that the appeal proceedings are only the extension of the suit proceedings and a question of law can always be raised in the course of arguing out the appeal. He relies on the Apex Court's judgment in the case of [PRECEDENT]. He read out last part of para 12 of the said judgment. It is extracted hereinbelow:
"12. Another aspect to be noticed, is that the court can consider such a case not specifically pleaded only when one of the parties raises the same at the stage of arguments by contending that the pleadings and issues are sufficient to make out a particular case and that the parties proceeded on that basis and had led evidence on that case. Where neither party puts forth such a contention, the court cannot obviously make out such a case not pleaded, suo motu."
33. He has also relied on the Apex Court's judgment in the case of [PRECEDENT]. It is held therein that where the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but also in refutation of those of the other side, it cannot be said that the omission to frame an issue was fatal to the case, or that there was mis-trial, which vitiates the proceedings; the suit could not have been dismissed on that narrow ground.
34. He submits that the orders passed by this Court in a number of writ petitions, filed by the appellants, are clearly indicative of the objections to the maintainability of the suit on the ground of limitation, adverse possession, res-judicata, etc.,
35. The submissions of the learned advocates have received my thoughtful consideration.
36. The first question that falls for my consideration is whether there is any bar for the plaintiffs to file a suit for ejectment, as they have not continued or resumed the execution proceedings for enforcing the eviction decree granted in [CASE NUMBER] as modified in [CASE NUMBER]?
37. There is no legal regime that the subsequent acquirers of title to the property cannot file the suit for ejectment. The authorities relied upon by the appellants' side are of enabling nature and not of prohibiting nature. What is conclusively reiterated therein is that the persons, who acquire the legally recognizable interest in the land during the pendency of the proceedings can continue the execution proceedings or file fresh execution proceedings. But they do not impose any embargo on the acquirers of title to the property against filing a fresh suit.
38. The decision in the case of Calcutta Credit Corporation (supra) does not come to the rescue of the appellants in any way. In the said case, the tenant served the notice on the land-lord intimating its intention to vacate the premises, but later unilaterally withdrew the notice and sublet a portion of the tenanted premises. The Apex Court held that once the notice determining the tenancy is issued, it cannot be withdrawn without the consent of the other party.
39. In the case of [ENTITY] (supra), the Hon'ble Supreme Court examined as to whether the death of a decree holder or judgment-debtor results in the abatement of execution proceedings. In the case of [ENTITY] (supra), the issue that fell for consideration was whether the transferee can move for the execution of the decree despite the subsequent adjustment between the original decree holder and the judgment-debtor.
40. In the instant case, the question is not regarding the permissibility of the continuation/revival/resumption of the execution proceedings. The question is whether it was open to the plaintiffs to file a suit for ejectment, when their predecessor-in-title had obtained the eviction order but had abandoned the execution proceedings mid-way on his alienating the suit schedule property.
41. If the appellants' arguments are accepted, it would mean that the recovery of the possession has to be made only by getting the eviction order in [CASE NUMBER] executed. It is one thing to say that the new owner or successor-in-title has the option of reviving the execution proceedings within the prescribed period of limitation. But it is another thing to say that he cannot file a fresh suit and that too for a larger relief. It is always open to the party to take advantage of the change in the law. The [ACT] was brought in for replacing the [ACT]. The [ACT] is enacted to balance the interests of both the landlord and the tenant. On the introduction of the said legislation, a landlord can always file the eviction petition, if the said Act has application for his case. If not so, he can file a suit for ejectment.
42. That the plaintiffs, who have become the owners of the premises in question subsequently, cannot be rendered remediless by holding that they are not entitled to recover the possession, as they have not got executed the eviction order obtained by their predecessor-in-title. I have therefore no hesitation in holding that the non-continuation of the execution proceedings by the plaintiffs or by their vendors is not fatal to the ejection suit.
43. The next question that falls for my consideration is whether the suit is hit by res-judicata?
44. The eviction order obtained in [CASE NUMBER] was for taking the possession, demolishing the building, reconstructing it and redelivering the rebuilt premises to the defendants as tenants. As the plaintiffs have purchased the suit schedule property for their bonafide use and occupation, they cannot be precluded from filing a fresh suit for ejectment. There is no impediment in filing another suit on the subsequent or a new cause of action or on the basis of change in the law.
45. The doctrine of res-judicata is not attracted to the case on hand. In the [CASE NUMBER] what was invoked was [SECTION] of the [ACT]. The ground of requirement of the premises for self-occupation contained in [SECTION] of the [ACT] was never invoked. On the other hand, one of the reasons for filing the ejectment suit, as averred in para 8 of the plaint, is that the suit schedule property is bonafidely required for the plaintiffs' own use and occupation.
46. The earlier eviction order passed in [CASE NUMBER] as modified in [CASE NUMBER] is for the re-entry of the tenants into the new premises on the re- construction of the buildings. In [CASE NUMBER], the relief is for the ejecting the defendants from the suit schedule property.
47. On the point of res-judicata, the Trial Court has held that the second suit for eviction is maintainable. The Trial Court cannot be held to be at fault for holding so in view of the Apex Court's judgment in the case of [PRECEDENT]. The Apex Court has this to say in para 30 of the said judgment:
"30. The facts before us are again similar to those in [PRECEDENT] That decision is similar to [ENTITY] and the said ruling was followed. There the first suit was for eviction solely based on tenancy and the execution was allowed to become time bared as in the case before us. The second suit for eviction based on title was held maintainable and not barred. [ENTITY], J. observed:
On the principle of the decision in [ENTITY] v. Chindan, I think that the second suit based on title is not barred A suit based on tenancy is very narrow in its scope and it is unnecessary very often for the plaintiff landlord to plead his title; it is enough for him in such a suit to prove the lease and the tenancy and that it was validly terminated.
In that case too, the fresh suit was filed within 12 years from the date fixed in the earlier compromise decree. The possession during the period granted under the compromise was treated as permissible."
48. For all these reasons, I uphold the Trial Court's finding that the suit is not hit by res-judicata.
49. The third question that falls for my consideration is whether the defendants have perfected their title by way of adverse possession?
50. The Trial Court has rightly disbelieved the claim of adverse possession, as the second defendant has clearly admitted that his father was a tenant and that the defendatns were all brought on record as his legal representatives on his demise. In the course of cross-examination, the first defendant (DW-2) has admitted that his father never claimed to be the owner in the proceedings in [CASE NUMBER] and [CASE NUMBER]. He has also admitted that at that time he had not asserted that he is the owner of the schedule property. The defendant No.2, who is examined as DW1, has admitted that [ENTITY] was the original owner of the suit property and that the plaintiffs have purchased it.
51. The defendants seem to be labouring under the impression that by non-payment of the rent, the person in possession of the property becomes the owner. As rightly observed by the Trial Court, there is no explanation when the defendants' possession became adverse to the true owner.
52. The Trial Court has also referred to the following five principles, which a person claiming adverse possession should show as per the decision of this Court in the case of [PRECEDENT].:
(1) On what date he came in possession of property;
(2) What was the nature of his possession;
(3) Whether the factum of possession was known to the other party (real owner) (4) How long his possession has continued; and (5) Whether his possession was open and undisturbed.
53. The Apex Court in the case of [PRECEDENT] has this to say in para 7 of its decision:
"7. The law is well settled by this Court in [PRECEDENT] that the tenant who has been let into possession by the landlord cannot deny the landlord's title however defective it may be, so long as he has not openly surrendered possession by surrender to his landlord. Although, there are some exceptions to this general rule, none of the exceptions, have been established by the appellants in this case. Hence, the appellants who were the tenants of the respondents will have to surrender possession to the respondents before they can challenge the title of the respondents."
54. As the plea of adverse possession is not supported by material particulars, the Trial Court has rightly answered the additional issue No.1 on adverse possession against the defendants. The Trial Court is further justified in holding that a tenant cannot become a perpetual tenant automatically or become the owner of the property by not paying the rents.
55. The argument with regard to the non-receipt of the notice is to be considered. The stand of the defendant Nos. 3(a) and 4 is that they have not received the notice. The L.C.R.s. reveal that the notices were issued to all the defendants to their business addresses and also to their residential addresses by two modes - courier service and certificate of posting. Exs. P14 to 21 are the eight office copies of the notices, dated 26.06.2002. Exs. P22 and P23 are the certificates of posting under which the notices were sent to the defendants. Exs. P24 and P25 are the receipts issued by the Blue Dart Express Limited for having sent the notices under courier. Exs. P28 to P31 are the unserved courier envelopes.
56. Despite all these, the defendant Nos. 3 and 4 are ventilating their grievances that they have not received the notices. The defendant Nos. 1 and 2 themselves have not made an issue of the non-receipt of the notice. On the other hand, it is their stand that as there is no landlord and tenant relationship, they need not give any reply to the notice.
57. Taking all these materials and stand into consideration, I find that the ruse of defendant Nos. 3 and 4 that they have not received the notices is not acceptable.
58. Similarly, I am unpersuaded to interfere in the matter on the slender ground that only the G.P.A. holder of the plaintiffs is examined. Because no question or suggestion is put by the defendants to the effect that the G.P.A. holder does not have the personal knowledge in the matter.
59. The Trial Court has also come down on the conduct of the defendants. In para 67 of the its judgment it has observed that the defendants are well aware that they are the tenants in respect of the premises in question. The defendants have set up the plea of independent right and adverse possession and thereby avoided the payment of rent. The defendants have resorted to the delaying tactics by challenging every order on interlocutory application. The defendants have preferred more than 20 writ petitions.
60. It is also worthwhile to notice that the point of limitation, the non-maintainability of the suit on account of the plaintiffs' abandonment of their right to execute the eviction order were not specifically raised in the written statement.
61. As held by the Apex Court in the case of UNION OF INDIA (supra), no party can be permitted to travel beyond his pleading and that all the necessary and material facts should be pleaded by the party in support of the case set up by it. Similarly, in the case of [ENTITY] (supra), the Apex Court has held that the pleadings must set forth sufficient factual details so as to dispel false or exaggerated claims or defence. The Apex Court has come down very heavily on the parties, who abuse the process of law. In the said case, the watchman had filed the suit for permanent injunction against the owner of the premises. As the said suit was protracted for long by resorting to falsehoods, concealments, distortions, obstructions and confusion in the pleadings and documents, the Apex Court held the watchman guilty of avoiding ejectment and expressed its concern over the delayed administration of civil justice prevalent in the present system.
62. In the case of [ENTITY] (supra), the Apex Court has this to say in paras 10, 16 and 17:
"10. The case at hand shows that frivolous defences and frivolous litigation is a calculated venture involving a no-risks situation. You have only to engage professionals to prolong the litigation so as to deprive the rights of a person and enjoy the fruits of illegalities. I consider that in such cases where the court finds that using the courts as a tool, a litigant has perpetuated illegalities or has perpetuated an illegal possession, the court must impose costs on such litigants which should be equal to the benefits derived by the litigant and harm and deprivation suffered by the rightful person so as to check the frivolous litigation and prevent the people from reaping a rich harvest of illegal acts through the courts. One of the aims of every judicial system has to be to discourage unjust enrichment using the courts as a tool. The costs imposed by the courts must in all cases should be the real costs equal to deprivation suffered by the rightful person.
16. Before parting with this case, I consider it necessary to pen down that one of the reasons for overflowing of the court dockets is the frivolous litigation in which the courts are engaged by the litigants and which is dragged on for as long as possible. Even if these litigants ultimately lose the lis, they become the real victors and have the last laugh. This class of people who perpetuate illegal acts by obtaining stays and injunctions from the courts must be made to pay the sufferer not only the entire illegal gains made by them as costs to the person deprived of his right, but also must be burdened with exemplary costs.
17. The faith of people in judiciary can only be sustained if the persons on the right side of the law do not feel that even if they keep fighting for justice in the court and ultimately win, they would turn out to be a fool since winning a case after 20 or 30 years would make the wrongdoer as real gainer, who had reaped the benefits for all those year. Thus, it becomes the duty of the courts to see that such wrongdoers are discouraged at every step and even if they succeed in prolonging the litigation due to their money power, ultimately they must suffer the costs of all these years' long litigation. Despite the settled legal positions, the obvious wrongdoers, use one after another tier of judicial review mechanism as a gamble, knowing fully well that dice is always loaded in their favour, since even if they lose, the time gained is the real gain. This situation must be redeemed by the courts."
63. On the mesne profits, the Trial Court has only reserved the liberty to the plaintiffs to apply for the mesne profits by filing a separate petition; an enquiry is required to be held into the matter. Such a view also does not suffer from any infirmity.
64. Thus, not finding any merit in any of the contentions raised by the appellants' side, I dismiss these appeals. However, appreciating that the appellants have been using the suit schedule property both for residential and non- residential purpose for the last several years and the difficulty in getting the alternative places at a short notice, I deem it just to grant them one year's time from today to vacate the suit schedule property and hand over its possession to the plaintiffs. No order as to costs.
JUDGE Cm/-