Case: M/S EUREKA BUILDERS  Vs. GULABCHAND DEAD BY LRS AND ORS ETC ETC

These appeals arise from the common final judgment and order dated 30.09.2015 passed by the High Court of Karnataka, Circuit Bench at Dharwad in R.F.A. Nos.100017 of 2015, 100018 of 2015, 100016 of 2015 and 100099 of 2015, whereby the Division Bench of the High Court disposed of the appeals by allowing theappeal and accordingly modified the finding of the Trial Court as regards the status and the ownership rights of the plaintiff in the suit land and held that the plaintiff is the owner of the suit land and is, therefore, entitled to claim his 1/5 th share in it along with defendants Nos.1 to 4, who are legal representatives of late Shah VeljeeIn order to appreciate the issues involved in these appeals, it is necessary to set out the background facts, which led to filing of the suit by theof respondent Nos.1 and 2 and now represented by respondent Nos. 1 and 2 against the appellants and remaining respondents No.3 to 34 herein out of which these appealsThe case has a history of litigation as it would be clear from the narration of the facts stated hereinbelow. The facts mentioned hereinbelow are taken from SLP paper books and its list ofThe appellants herein are defendant Nos. 18 to 25 (who are builder, firm and its partners) whereas respondent Nos. 1 and 2 are the legal representatives of original plaintiff and respondent Nos. 3 to 34 are proforma defendants in a civil suit (O.S. No.37/2010) out of which these appeals arise. The contest in these appeals is essentially among the appellants and respondent Nos. 1 andThe dispute relates to a land bearing CTS Nos. 361 and 366 of CTS Ward No.1 (originally bearing RS Nos. 20/1/& 20/2 admeasuring 3 Acres 20 Guntas and 1 Acre 25 Guntas respectively) situated at Kusugal Road, Keshwapur, Hubli described in detail in the schedule to the plaint (hereinafter referred to as "the suitThe suit land was a "watan" property under the Maharashtra Hereditary Offices Act (hereinafter referred to>) and on its repeal in 1961, was governed by the Karnataka Village Abolition Act, 1961 (hereinafter referred toThe suit land originally belonged to three persons namely, Marigouda Patil, Basangouda Patil and Adveppagouda Patil (hereinafter referred toOn 23.10.1915, three PATIL leased out land bearing CTS No. 366 (3 acres 20 guntas) to one Chaturbhuj Ratansi for a period of 50 years whereas the land bearing CTS No. 361 (1 acre 25 guntas) was permanently leased out to one Kanjee Ghelabhai Shet alias Gujjar onIn 1942, land bearing CTS No.361 was sold in Court Auction proceedings and one person by name – Shah Veljee Kanjee purchased the said land being the highestOn 14.05.1943, Shah Veljee Kanjee purchased another parcel of land bearing CTS No.366 by direct sale/purchase. Shah Veljee Kanjee diedleaving behind histwo major daughters and four minor sons. By inheritance, the legal representatives stepped into his shoes and became the joint owners of the suitOn 19.12.1957, the widow and 2 major daughters of late Shah Veljee Kanjee sold the suit land to one GadagCotton Sales SocietyNo. 17 (hereinafter referred to asThe son of late Shah Veljee Kanjee, who is plaintiff (since dead) and defendant Nos. 1 to 4 in the present suit out of which these appeals arise felt aggrieved by the sale dated 19.12.1957 made by their mother and two sisters in favour of the Society and accordingly filed civil suit being O.S. No.9/1969 praying therein for a declaration that the sale made by their mother and two sisters is bad in law and void to the extent ofshare (5/8 th ) in the suit land. The mother, two sisters and the Society contested the suit asThis suit was, however, decreed on 26.08.1977 by the Principal Civil Judge (Sr. Division) infavour. It was held that the sale made by the mother and two sisters of the plaintiff in favour of the Society is illegal and thus is not binding on the plaintiff to the extent of his 5/8 th share in the suitThis decree was challenged by the purchaser (Society) in the High Court and later in this Court but was not successful. In other words, the Society lost the legal battle throughout up to this Court and resultantly, the decree dated 26.08.1977 passed by the Principal Civil Judge (Sr. Division) inIn execution of this decree, the plaintiff and defendantwho are the legal representatives of late Shah Veljee Kanjee, were accordingly placed in joint possession of their shares in the suitAs mentioned above, the appellants herein are the builder, firm and its partners. They claimed to have entered into an agreement with the original owners (three PATIL) on 23.03.2001 for purchase of the suit land on certain terms andIn the year 2004, the original owners (three PATIL) claiming their ownership rights over the suit land filed two civil suits being O.S. Nos.364 & 365 of 2004 against the legal representatives of Shah Veljee Kanjee and the Society. The Civil Court dismissed both these civil suits as barred by time vide judgment dated 29.01.2007. The two dismissals attained finality because the three PATIL did not pursue the matter further in appeals to the higherDuring interregnum period, there were several rounds of litigation in civil, revenue and rent courts among the parties and their representatives. Similarly some subsequent developments in relation to the suit land conferring some rights by the State on the parties also took place. However, at this stage, it is not necessary to give details of this litigation and its development. The same will be referred to at a later stage while dealing with theseIt is basically with the aforementioned background facts, one son of Shah Veljee Kanjee (respondent No.1 herein (since dead) and represented by his legal representatives son/daughter as respondent Nos.1 and 2 filed civil suit (O.S.No.37/2010) on 23.02.2010 in the Court of Principal Civil Judge, Sr. Division at Hubli out of which these appeals arise against 27 defendants which included the members of Shah Veljee Kanjee family, their legal heirs, legal representatives of original holders (three PATIL) and two intending purchasers/buyers of the suit land, namely, Society and the other, M/s Eureka buildersa firm and their partners (appellantsThe suit was filed for partition and separate possession of1/5 th share in the suit land and also for grant of permanent injunction restraining the two intending buyers/purchasers of the suit land from interfering inpossession over the suitIn substance, the plaintiff (respondent Nos.1 and 2 herein) had claimed the aforementioned reliefs on the basis of his title over the suit land which, according to him, was already adjudicated and recognized in his favour by the Civil Court vide judgment dated 26.08.1977 passed in O.S. No.9/1969 and it remains upheld up to thisSo far as other family members of Shah Veljee Kanjee (defendant Nos. 1 (a) to (c), 2 and 4) are concerned, they filed their counter claim and admitted the claim set up by the plaintiff in theThe suit was mainly contested by appellant No.1 herein i.e. the Builder (defendant No. 18) on several grounds such as, firstly, the suit is not maintainable because proper reliefs were not claimed by the plaintiff; Second, the suit property is not properly valued; Third, the plaint is insufficiently stamped; Fourth, the suit is barred bySo far as the merits of the claim is concerned, appellant No.1 (defendant No.18) denied thetitle over the suit land and averred inter alia that the original holders of the suit land (three PATIL) with whom they entered into an agreement to purchase the suit land were having subsisting right, title and interest in the suit land by virtue of twoorders (31.03.1973 and 01.04.1973) made by the State in their favour under the KVA Act of 1961 on the application of the original holders (three PATIL) and, therefore, the original holders (three PATIL) were competent to enter into an agreement to transfer the suit land in their favour onIt was also averred that whatever ownership rights in the suit land which the plaintiff and defendant Nos.1 to 4 were possessing in their favour stood extinguished on account of the twoorders dated 31.03.1973 and 01.04.1973 made by the State in favour of the original holders (three PATIL) and, therefore, in the light of these subsequent events which came into existence, no decree can now be passed in favour of plaintiff and defendant Nos.1 to 4 in relation to the suit land for any relief on the strength of theirIssues were framed and parties adduced their evidence. By judgment/decree dated 07.11.2014, the III Addl. Senior Civil Judge, Hubli decreed thesuit in part and passed the preliminary decree of partition and separate possession in relation to the suit land infavour as prayed in theThe Additional Senior Civil Judge answered almost all the issues infavour and held that the plaintiff is entitled for 1/5 th share in the leasehold right in respect of the suit scheduled property and so also defendant Nos. 1 (a) to (c), 2 and 4 are entitled to claim their 1/5 th share each in leasehold rights in respect of the suit land along with theThe plaintiff, the legal representatives of defendant Nos. 2, 3 and 4 and defendant No. 17Society felt aggrieved of certain findings about the ownership status of the plaintiff in the suit land and accordingly filed four separate first appeals in the High Court atSo far as the present appellants are concerned, they did not prefer any appeal as they seemed to be satisfied with the judgment of the TrialBy the impugned judgment, the Division Bench disposed of all the four appeals. The High Court allowed the appeal filed by the plaintiff and accordingly modified the finding of the Trial Court as regards the status and the ownership rights of the plaintiff in the suit land and held that the plaintiff is the owner of the suit land and is, therefore, entitled to claim his 1/5 th share in the suit land along with defendants, who are legal representatives of late Shah Veljee Kanjee like theIt is against this judgment of the High Court, the appellants herein (defendant Nos. 18 to 25who are builder, firm and its partners) have felt aggrieved and filed the present appeals by way of special leave petitions in this Court.

Reasoning:
Having heard the learned counsel for the parties at length and on perusal of the record of the case, we find no merit in these appeals. In our view, the reasoning and the conclusion arrived at by the High Court cannot be faulted with. We are, therefore, inclined to uphold the reasoning and the conclusion arrived at by the High Court by assigning our reasoningAt the outset, we observe that so far as the right, title and interest of the appellants in the suit land is concerned, the appellants neither claim and nor do they have a right to claim any right, title and interest in the suit land in their own rights. In other words, the status of the appellants in this litigation are that of the intending purchasers of the suit land from the original holders of the suit land (threeIn our view, if the original holders (three PATIL) are able to prove their subsisting right, title and interest over the suit land against the plaintiff, the appellants would be able to get the relief in the suit because they are claiming through original holders (three PATIL). But if the original holders (three PATIL) are not able to prove their subsisting right, title and interest over the suit land against the plaintiff, then the appellants would also loose theIn our considered opinion, the appellants have failed to substantiate the right, title and interest of the original holders (three PATIL) in the suit land through whom they claim to derive interest in the suit land, whereas the respondent (plaintiff) has been able to prove his subsisting right, title and interest in the suit land on the date of filing of the suit, out of which these appeals arise. The appellants, therefore, have no locus to claim any interest in the suitIt is a settled principle of law that a person can only transfer to other person a right, title or interest in any tangible property which he is possessed of to transfer it for consideration orIn other words, whatever interest a person is possessed of in any tangible property, he can transfer only that interest to the other person and no other interest, which he himself does not possess in the tangibleSo, once it is proved that on the date of transfer of any tangible property, the seller of the property did not have any subsisting right, title or interest over it, then a buyer of such property would not get any right, title and interest in the property purchased by him for consideration or otherwise. Such transfer would be an illegal and voidIn our considered opinion, the reasons as to why the appellants failed to prove the subsisting right, title and interest of the original holders (intendingPATIL) in the suit land are more than one as are set out by usFirst, the original holders (three PATIL) had filed two suits (O.S. Nos. 364 and 365 of 2004) in relation to the suit land asserting therein their ownership rights over the suit land against the present plaintiff and other members of Shah Veljee Kanjee but both the suits were dismissed by the Civil Court onThese dismissal attained finality regardless of the fact as to on what grounds they suffered dismissal. These dismissals were binding on the original holder (three PATIL). A fortiori, these dismissals are binding on the appellants too because the appellants were claiming through the original holders (threeIt is for this reason, we are of the view that the original owners did not have any subsisting right, title and interest in the suit land, which they could have or/and were capable to transfer to the appellants whether for consideration or otherwise on the date when they entered into an agreement of sale of the suit land to the appellants onSecond, it cannot be disputed that original holders (three PATIL) had parted with the suit land long back by legal mode of transfer, one through Court Auction proceedings in 1942 and the other by direct sale/purchase on 14.05.1943 in favour of Shah VeljeeSince then, the original holders (three PATIL) did not have any subsisting right, title and interest in the suit land because whatever rights, title and interest which they had in the suit land, the same were transferred to Shah Veljee Kanjee through Court Auction proceedings in 1942 and by direct sale/purchase on 14.05.1943. These rights were then devolved on his legal representatives by inheritance consequent upon the death of Shah VeljeeIt also cannot be disputed, as taken note of above, that the Civil Court had already recognized the rights, title and interest of the legal representatives of Shah Veljee Kanjee in the suit land in O.S. No.9/1969 filed by them against theThis suit was decreed in favour of legal representative of Shah Veljee Kanjeeand remained upheld up to thisIt is due to these reasons also, all the rights, title and interest of original holders (three PATIL) in the suit land stoodWe find no merit in this submission for more than one reason. Assuming for the sake of argument that as a result of theorders made by the State in favour of the original holders (three PATIL), the rights, title and interest in the suit land again reverted to them in 1973 but they failed to exercise their right of ownership over the suit land for a long time, hence their right of ownership stoodIt was only after 31 years from theorder, the original holders woke up from slumber and filed two suits (O.S. Nos.364 and 365/2004) against the plaintiff and other members of Shah Veljee Kanjee in the Civil Court. It is not in dispute that the two civil suits also suffered dismissal from the Civil Court on 23.11.2004 and attainedIn our considered opinion, whateverrights, title and interest which the original holders derived from the orders ofin 1973 in the suit property in their favour, the same stood extinguished by efflux ofThe reason was that in order to keep such new rights intact and enforceable, the original holders (three PATIL) were under a legal obligation to have filed a suit for claiming a declaration and possession of the suit land and this ought to have been done by them within 12 years from the date ofThey, however, failed to do so within 12 years and when they actually tried to exercise their rights by filing the suit in 2004 (after 31 years from 1973), by then it was too late to exercise such rights in law. By that time, their rights in the suit land stoodAs held supra, the original holders (three PATIL) failed to file the civil suit against the plaintiff claiming possession of the suit land on the strength of their new title namely,in relation to the suit land, within 12 years from the date ofand, therefore, by virtue of Section 27 of the Limitation Act, their all rights, title and interest in the suit land gotIn view of these reasons, we are of the considered view that neither the original holders (three PATIL) and nor the appellants could take any benefit of the orders ofdated 31.03.1973 and 01.04.1973 made by the State so as to divest the legal representatives of Shah Veljee Kanjee (plaintiffs) from their rights, title and interest in the suit land which they had legally acquired through Court Auction and direct purchase inThis issue can be examined from yet another legal angle on the admitted facts situation arising in theIt is not in dispute that Shah Veljee kanjee, in the first instance, acquired legal and valid title in the suit land through Court Auction proceedings in the year 1942 and second, by direct purchase of the part of the suit land on 14.05.1943 from the original holders (threeIn our view, the plaintiff in alternative can be held to have acquired title against the original holders(three PATIL) by operation of law. The reason is not far toAdmittedly, the plaintiff continued to remain in lawful possession of the suit land since 1942/1943, first through Shah Veljee Kanjee and after his death through his legal representatives. It is not in dispute that the original holders (three PATIL) were aware of the ownership rights of Shah Veljee Kanjee over the suit land since 1942/1943 as Shah Veljee Kanjee got the suit land by State Auction proceedings and also by directIn this way, it was proved that the possession of Shah Veljee Kanjee over the suit land was throughout long, continuous, uninterrupted, open and peaceful with assertion of ownership from 1942 till 2004 to the knowledge of the wholeThe aforesaid undisputed facts confirm the possessory rights, title and interest of the plaintiff in the suit land against everyone including the original holders (three PATIL) by operation ofIn our view, this submission need not be dealt with in detail because it has no relevance in the light of our findings recorded above against theIn other words, once the rights of the original holders in the suit land stood extinguished, this submission does not survive for consideration on itsA right in the property once extinguished by operation of law, it cannot be revived unless the law itself provides for its revival in a particular situation. Such is not the caseThere is, however, another infirmity in the case of the appellants, which disentitle them to claim any relief in relation to the suitAs mentioned above, the appellants, for proving the right of ownership of the original holders (three PATIL) in the suit land, have placed reliance on the two orders dated 31.03.1973 and 01.04.1973 of the State by which the State is alleged to have madeof the suit land in favour of the original holders (threeIn our view, in the absence of any adjudication of the right of ownership of the original holders (three PATIL) on the strength of these two orders by the competent Court as against the other stakeholders having an interest in the suit land and especially the legal representatives of Shah Veljee Kanjee, it is not possible to give any benefit of these two orders in favour of the original holders (three PATIL) in theseThat apart, what is the effect of passing of the two orders on the rights, title and interest of the purchasers of the suit land because admittedly, the suit land was sold to the purchaser (Late Shah Veljee Kanjee) prior to passing of these two orders and whether these orders will ipso facto divest the purchasers of their rights, title and interest in the suit land were required to be gone into by the competent Court after affording an opportunity to such affected persons, namely, legal representatives of late Shah VeljeeThe original holders (three PATIL) though filed the civil suits to get these issues adjudicated against the affected persons but failed in their attempt to get these issues adjudicated. In other words, by the time the original holders (three PATIL) approached the Civil Court, their all rights in the suit land itself got extinguished on account of efflux of time (31 years) as has been heldIt is for these reasons also, we are of the view that the appellants have noIn our view, therefore, the High Court was right in its reasoning and the conclusion in holding that the original holders (three PATIL) having lost all their rights, title and interest in the suit land on the expiry of 12 years from the date ofin their favour (assuming theto be valid) in 1985 and secondly, they again lost their ownership rights due to dismissal of their two suits (O.S. Nos. 364 and 365 of 2004) on 23.11.2004, neither the original holders (three PATIL) and nor the appellants, who claimed through original holders, had any right to claim any interest in the suit land.