L.C. Hanumanthappa (Since ... vs H.B.Shivakumar

3. Within a few days from the filing of this suit, the defendant in the first suit filed a suit being suit number O.S. 1650 of 1990 in the City Civil Court at Bangalore against one L.C. Ramaiah and the said Shri Hanumanthappa stating that the defendants had attempted to trespass into the suit schedule property about 15 days prior to the suit being filed, and asked for a permanent injunction against the said defendants restraining them from interfering with the peaceful possession and enjoyment of the suit schedule property. The plaintiff also claimed to be the owner in possession of the suit schedule property.

5. The Plaintiff has failed to established any relationship between old site No.13 and Corporation No.12/2, as claimed by him in the plaint.

6. The allegations that at the time of the purchase of the schedule property by the plaintiff, western boundary was a building site bearing No.14 and however subsequently the said portion left for building site has been converted as road and is being used as such since several years are false and further it is false to state that the east of the schedule property bearing building site No. 12 is situate and the same was belonging to one H. Venkataramanappa and however, the said site has been sold by him and now the said property is owned by one Sri Ahmadullah khan and he has constructed a building thereon, as alleged in para 2 of the plaint.

7. The plaintiff has purposefully distorted the boundary of his old site No. 13 to bring substantially the boundaries of site No.15, old 3, C.T.S. No. 1157 (city Survey) which exclusively belongs to the defendant.

5. It can thus be seen that on 16th May, 1990 itself the plaintiff in O.S. No. 1386 of 1990 was put on notice that his suit for injunction was not maintainable as he had failed to establish title over the suit schedule property.

6. Both suits were tried together, and by a judgment dated 10th March, 1999, the Court of Additional City Civil Judge at Bangalore decreed O.S. No. 1650 of 1990 and dismissed O.S. No. 1386 of 1990. In the first appeals filed against the said judgment, the High Court of Karnataka by its judgment dated 28th March, 2002 allowed R.F.A. No. 415 of 1999, and dismissed R.F.A. No. 456 of 1999, and remanded the matter back to the trial court for fresh consideration. The High Court while remanding the matter observed as follows:-

7. On 1st April, 2002, the plaintiff in O.S. No. 1386 of 1990 then sought to amend the plaint in terms of the said judgment by adding para 5A to the plaint in which the plaintiff stated:-

26. It is clear that on the facts in the above case the amendment was allowed subject to the plea of limitation which could be taken up by the defendant when the trial in the case proceeds.

29. Applying the law thus laid down by this Court to the facts of this case, two things become clear. First, in the original written statement itself dated 16th May, 1990, the defendant had clearly put the plaintiff on notice that it had denied the plaintiff’s title to the suit property. A reading of an isolated para in the written statement, namely, para 2 by the trial court on the facts of this case has been correctly commented upon adversely by the High Court in the judgment under appeal. The original written statement read as a whole unmistakably indicates that the defendant had not accepted the plaintiff’s title. Secondly, while allowing the amendment, the High Court in its earlier judgment dated 28th March, 2002 had expressly remanded the matter to the trial court, allowing the defendant to raise the plea of limitation. There can be no doubt that on an application of Khatri Hotels Private Limited (supra), the right to sue for declaration of title first arose on the facts of the present case on 16th May, 1990 when the original written statement clearly denied the plaintiff’s title. By 16th May, 1993 therefore a suit based on declaration of title would have become time-barred. It is clear that the doctrine of relation back would not apply to the facts of this case for the reason that the court which allowed the amendment expressly allowed it subject to the plea of limitation, indicating thereby that there are no special or extraordinary circumstances in the present case to warrant the doctrine of relation back applying so that a legal right that had accrued in favour of the defendant should be taken away. This being so, we find no infirmity in the impugned judgment of the High Court. The present appeal is accordingly dismissed.

August 26, 2015.