2025 INSC 214
SUPREME COURT OF INDIA
(HON’BLE J.B.
PARDIWALA, J. HON’BLE R. MAHADEVAN, JJ.)
M/S B N PADMANABHAIAH
AND SONS
Petitioner
VERSUS
R N NADIGAR & ORS.
Respondent
Civil Appeal No. 2550 OF 2025 (Arising out of
SLP (C) No.23115 of 2022)-Decided on 14-02-2025
Civil, CPC
(A)
Civil Procedure Code, 1908, Order 1 Rule 8 – Representative suit – Locus standi
-
Neither the plaintiffs in the present suit nor the Government High School, were
made parties to the earlier suit filed by the appellant which was solely
between the appellant and the State, only for the relief of permanent
injunction in respect of the suit property - Decree granted in O.S.No.80 of
1978 in favour of the appellant was challenged by the State before the
appellate courts, but ended in dismissal - In the present suit, from which this
appeal arises, the Plaintiff Nos.1 to 4 claim to be former students of the
Government Higher Secondary School now known as Government Junior College,
Tumkur, while the remaining Plaintiffs and Defendant Nos.4 to 20 are citizens,
rate payers or persons interested in protecting public property – Plaintiffs
preferred the present suit in O.S. No. 505 of 1989 in a representative capacity
inter alia seeking a declaration that the decree obtained by the appellant in
O.S.No.80/1978 is not binding on the Respondent No.2 / State and also a
declaration that the Respondent No.2 / State is the rightful owner of the suit
property – Held that as the previous suit was decided on merits and has
attained finality, Respondent No.2/State is bound by the terms of the decree -
Further, as Plaintiffs in the present suit were not parties to the previous
suit and they made no attempt to implead themselves therein, having complete
knowledge of the earlier round of litigations between the appellant and the
State, they have no locus standi to file the present suit, specially in a
representative capacity, wherein they are attempting to obtain reliefs for
respondent No.2/State, which itself is barred from encroaching the suit
property - Held that the present suit filed by the plaintiffs is not
maintainable.
(Para 17)
(B)
Civil Procedure Code, 1908, Section 11; Order 1 Rule 8 – Representative suit –
Res judicate- Respondent No.2 /
State did not claim any right, interest or title over the suit property and
they did not adduce any concrete evidence to show that the suit property was in
actual possession of the Government in the earlier round of litigations in O.S.
No. 80/1978 - As such, they cannot now be permitted to raise the same in the
subsequent suit filed by the third parties, that too, in a representative
capacity - However, the trial Court erroneously entertained the suit and partly
decreed the same in favour of the plaintiffs - Though the said decree was set
aside by the First Appellate Court, the High Court decreed the suit as prayed
for, by the judgment and order impugned in this appeal – Held that the suit
from which the present appeal arises, is not maintainable in law and is liable
to be dismissed.
(Para 18)
JUDGMENT
R. Mahadevan, J. :- Leave granted.
2.
The appellant has preferred this appeal assailing the judgment and final order
dated 01.10.2021 passed by the High Court of Karnataka at Bengaluru [Hereinafter referred to as “the High
Court”] in R.S.A.No.2823 of 2010 thereby setting aside the judgment
and decree passed by the Presiding Officer, Fast Track Court-II, Tumkur[Hereinafter referred to as “the First
Appellate Court”] on 31.08.2010 in R.A.No.478/2009 (Old
R.A.No.67/2007) and decreeing the suit in O.S. No. 505 of 1989 filed by the
plaintiffs before the Principal Civil Judge (Junior Division), Tumkur[Hereinafter referred to as “the trial
Court”].
3.
The Respondent No.1 is the third plaintiff; the appellant herein is the first
defendant; and the Respondent Nos.2 and 3 are the Defendant Nos.3 and 2 in the
suit.
4.
The aforesaid suit in O.S.No.505/1989 was filed by the Plaintiff Nos.1 to 4 who
are former students of Government Higher Secondary School, now known as
Government Junior College, Tumkur, along with others, in a representative
capacity before the trial Court, praying for the following reliefs:
a) For a declaration
that the decree obtained by the 1st defendant in O.S.No.80/1978 on the file of
the Munsif Court, Tumkur is not binding on the 3rd defendant or anybody
interested as a rate paying citizen of the State of Karnataka including the
plaintiffs.
b) For further
declaring that the 3rd defendant is the rightful owner of the Suit property.
c) For a direction to
the 1st defendant to deliver the possession of the Suit property to the
Government 3rd defendant;
d) For a consequential
injunction restraining the 1st defendant from interfering with the possession
of the 3rd defendant; and
(e) For costs and such
other reliefs.
Vide
order dated 24.01.1994, at the instance of the plaintiffs, amendment was
ordered and clause (d) of the prayer made in the suit was deleted.
5.
Upon examining both oral and documentary evidence, viz., PW1 to PW2 and DW1 and
Exs.P1 to P45 and Exs.D1 to D49 and after hearing both sides, the trial Court
vide judgment and decree dated 28.02.2007, partly dismissed and partly allowed
the suit in the following terms:
(i)Decree passed in
O.S. No. 80/78 on the file of Munsif Court, Tumkur, filed by Defendant No.1 is
partly binding effect in respect of the relief of permanent injunction and
accordingly, the said suit is partly decreed, as the said decree is not binding
on Defendant No.3 or anybody interested as a rate paying citizens of the State
of Karnataka including the Plaintiffs as the said suit was not for the relief
of declarations.
(ii)Declared that
Defendant No.3 is the rightful owner of the suit scheduled property and they
are entitled to get the possession of the same from the Defendant No.1 as per
the due procedure of law.
6.
Challenging the aforesaid judgment and decree passed by the trial Court, the
appellant / Defendant No.1 filed a Regular Appeal bearing No.478 of 2009 before
the First Appellate Court. Vide judgment and decree dated 31.08.2010, the First
Appellate Court allowed the said appeal and set aside the judgment and decree
passed by the trial Court in O.S.No.505 of 1989. Aggrieved by the same, the
Respondent No.1 / third plaintiff preferred a Regular Second Appeal bearing
No.2823 of 2010.
7.
Vide judgment and final order dated 01.10.2021, the High Court allowed the
second appeal and set aside the judgment and decree passed by the First
Appellate Court, and decreed the suit as prayed for. The High Court also
directed that the possession of the suit schedule property consisting of the
school building operated by the Government and any vacant space in possession
of Defendant No.1, be delivered to the Government. Aggrieved by the same, the
appellant / Defendant No.1 is before us with the present Civil Appeal.
8.
When the matter was taken up for hearing on 16.12.2022[Issue notice to the respondents.
In the meanwhile, the
status quo existing as on today, to continue.] , this Court granted
an order of status quo.
9.
The learned counsel for the appellant, at the outset, submitted that earlier,
the appellant preferred a suit in O.S.No.80 of 1978 for permanent injunction
restraining the Public Work Department and the State of Karnataka from
interfering with his peaceful possession and enjoyment of the suit schedule
property and after due contest, the suit was decreed in his favour; and the
appeals filed by the authorities before the First Appellate Court and the High
Court were dismissed; and hence, the decree of permanent injunction obtained by
the appellant is conclusive and binding on the parties. However, without
impleading themselves as parties to the earlier suit and contesting it,
Respondent No.1 and others, claiming to be former students of Government Higher
Secondary School (now known as Government Junior College, Tumkur) and as rate
payers or persons interested in protecting property of the public, preferred
the present suit in O.S.No.505 of 1989 in a representative capacity, for
declaratory reliefs in favour of the Respondent No.2 / State of Karnataka with
respect to the same property owned by the appellant. Thus, according to the
learned counsel, the plaintiffs have no locus standi to maintain the present
suit against the appellant.
9.1.
It is further submitted that the present suit came to be filed in 1985, whereas
the subject property has been in the possession of the appellant since 1970
vide a registered sale deed and therefore, the suit is hopelessly barred by
limitation. Without properly considering the same, the High Court decided the
issue of limitation in favour of the plaintiffs stating that the suit was filed
in the interest of the public as well as the institution.
9.2.
Placing reliance on the decision of this Court in Annaimuthu Thevar (dead)
by LRs v. Alagammal and others[(2005)
6 SCC 202] , the learned counsel submitted that in the earlier suit
between the appellant and Respondent No.2 for permanent injunction, the issue
of title with respect to the suit property was decided in favour of the
appellant and hence, the finding relating to title, will operate as res
judicata in the present suit, where title was an issue, arising out of which is
the present appeal. However, the High Court erred in holding that the
proceedings are not hit by res judicata on the ground that the nature of the
reliefs sought in both the suits are different. According to the learned
counsel, the Respondent No.2 / State of Karnataka had contested the earlier
suit at three forums and therefore, merely because a third party instituted the
present suit for declaration in favour of Respondent No.2, the legal bar of res
judicata cannot be brushed aside. Thus, it is submitted that the present suit
is clearly an attempt to do something indirectly what cannot be done directly.
9.3.
It is also submitted that the original Survey No.81 was subdivided into Sy.
nos. 81/1, 81/2 and 81/1A and the same can be derived from Ex. P24 and Ex. P27
and hence, the issue of forfeiture could not have been decided against the
appellant as there was no document to prove the alleged forfeiture. However,
the High Court erred in relying on earlier proceedings instituted by the
successors in interest of Md Bokhari, wherein it was pointed out that the land
belonging to Md Bokhari was forfeited due to non-payment of arrears of land
revenue and by necessary implication it was assumed that the land of successors
in interest of Lankey would also be deemed to be forfeited. According to the
learned counsel, merely because the successors in interest of Md bokhari failed
to deny the forfeiture of their lands and the Survey number was similar in
those proceedings, by necessary implication it cannot be deduced that the land
of the appellant was also necessarily forfeited. Moreover, the appellant was
not a party to the proceedings instituted by successors in interest of Md
Bokhari. Even if the appellant had no title, he had perfected his title by the
law of adverse possession, as the appellant and his predecessors in title were
in possession and enjoyment of the property for more than 60 years.
9.4.
Thus, the learned counsel submitted that the impugned order passed by the High
Court suffers from serious infirmities and illegalities and hence, the same
should be set aside by this Court.
10.
Per contra, the learned counsel for the Respondent No.1 / third plaintiff in
the present suit submitted that the Plaintiff Nos.1 to 4 are former students of
the Government Junior College, Tumkur, and are vitally interested in preserving
the institution’s property and thus, have locus standi to file and maintain the
present suit. In this regard, reference was made to the decision of this
court in Kalyan Singh v. Chhoti and others[(1990) 1 SCC 266] , wherein it was held that members of a
community can maintain a suit in representative capacity for preserving the
property of community.
10.1.
Continuing further, the learned counsel submitted that the earlier suit filed
by the appellant was only for permanent injunction and there was no issue of
title to the property involved. That apart, during the pendency of the suit,
the appellant filed an interlocutory application seeking amendment of the
plaint by adding the relief of declaration of title. However, the said
application was subsequently, withdrawn by the appellant. Moreover, there was
no finding with regard to title in the earlier suit. Therefore, the decree of
injunction would not operate as res judicata in the subsequent suit for
declaratory reliefs. In this regard, reference was made to the decision of
this court in Anathulla Sudhakar v. P.Bucchi Reddy by LRs and others[(2008) 4 SCC 59] .
10.2.
It is also submitted that the suit property was forfeited in the year 1919 due
to non-payment of land revenue and consequently, it was resumed by the
Government and hence, the appellant has no valid title to the suit property.
10.3.
Stating so, the learned counsel submitted that the High Court after examining
the entire evidence available on record, correctly decreed the suit as prayed
for, by the order impugned herein, which need not be interfered with by this
court.
11.
The learned counsel for the Respondent No.2 / State of Karnataka submitted that
the reliefs sought in the earlier suit and in the present suit are altogether
different and Respondent No.1 was not a party to the earlier suit. Further, the
issue of title over the disputed land between the parties was not decided in
the earlier suit, which was filed only for permanent injunction. That apart,
Respondent No.1 and others filed the present suit in O.S.No.505/1989 in a
representative capacity. Therefore, the principle of res judicata does not
apply to the present suit.
11.1.
Elaborating further, the learned counsel submitted that the land in dispute
bearing Sy.No.81 of Tumkur originally belonged to one Syed Md. Bokhari and
Lankey and both failed to pay arrears of land revenue and therefore, their
lands were forfeited and resumed by the Government. It is also submitted that
once the land was forfeited, due to non-payment of arrears of land
revenue, Syed Md. Bokhari and Lankey lost their ownership and they were
estopped from entering into any transaction with respect to the suit land in
any manner. Despite the appellant being aware of the same, proceeded to
purchase the suit property from the legal heirs of Lankey. Thus, it is
submitted that this transaction was void and hence, the appellant cannot claim
any right, title and interest over the suit property.
11.2.
It is also submitted that the earlier suit filed by the appellant was for
permanent injunction under section 38 of the Specific Relief Act,
whereas, the present suit filed by the plaintiffs under Order 1 Rule 8 of
CPC in a representative capacity had a wider scope than an ordinary suit
and hence, the same was maintainable before the trial Court. That apart, since
the present suit was filed in the interest of public as well as Institution,
the delay could not come in the way of entertaining the same. Therefore, the
learned counsel submitted that the appeal filed by the appellant, with an
intent to grab the land belonging to the Government, lacks merits and is liable
to be dismissed.
12.
We have heard the learned counsel appearing for the parties and also perused
the materials placed before us.
13.
As already stated above, the plaintiffs 1 to 4 claiming themselves as former
students of Government Higher Secondary School, now, known as Government Junior
College, Tumkur, filed the suit in O.S.No.505 of 1989 in a representative
capacity seeking declaration in favour of the Respondent No.2 / Defendant No.3
- State of Karnataka and for direction to the appellant / Defendant No.1 to
deliver possession of the suit property to the State. The suit schedule
property is a land bearing Survey No.81/1 measuring 6 acres 30 guntas, but the
subject matter in issue is 15 guntas of land. After due contest, the trial
Court decreed the suit partly, which was set aside by the First Appellate Court
on appeal filed by the appellant. However, the High Court decreed the suit as
prayed for by the plaintiffs, by the order impugned in this appeal.
14.
It is borne out from the records that original Sy.No.81 of Tumkur comprised
totally 7 acres 15 guntas of land, of which, 15 guntas of land was acquired by
the Indian Railways, 5 acres 3 guntas remained in the Khata of Mohamad Bokhari
and 1 acre 37 guntas remained in the Khata of Lankey. The Government took over
2 acres 22 guntas from the Khata of Mohamad Bokhari and 1 acre 10 guntas from
the Khata of Lankey vide order dated 10.09.1919. In respect of the said lands,
revenue/kandayam was not paid to the Government and hence, they were resumed by
the Government and thereafter, the said lands were reflected as Government
lands. Objections were invited from the public giving two years’ time, and upon
no objections being received, in the year 1933-34, record of rights and
index of lands were accordingly, prepared. Subsequently, Sy.No.81 was divided
into Sy.No.81/1 measuring 6 acres 30 guntas and 81/2 measuring 10 guntas.
14.1.
According to the Respondent No.2, the land measuring 6 acres 30 guntas situated
in Sy.No.81/1 was shown as Town Extension, i.e., the land belonging to Mokam
Ramaswamy Setty. Of the 6 acres 30 guntas, 19 guntas was shown as a road
leading from the Railway Station to Someshwarpuram and remaining 6 acres 11
guntas were shown as the Government High School Compound, Tumkur. Subsequently,
in 1960, one Mohiddin Bibi as the legal representative of Mohamad Bokhari,
acquired the land measuring 2 acres 4 guntas from the remaining 6 acres 11
guntas of land. Later, the Secretary of Sarvodaya High School namely C.K.Gopal
Rao purchased the said land and with sanction on 23.12.1968, formed a layout
for 3 acres 15 guntas. Thereafter, the authorities of the said school attempted
to take possession of the land belonging to Government High School, which
compelled the Headmaster of the Government High School to obtain a prohibitory
order on 25.10.1969 from the Taluka Magistrate, against the Secretary of
Sarvodaya High School, Mohidin Bibi etc., against which, the Secretary of
Sarvodaya High School preferred an appeal before the Karnataka Appellate
Tribunal, which came to be dismissed on 28.01.1971. Meanwhile, in 1970, the
Head Master of Government High School, Tumkur, made an application before the
Competent Authority for cancellation of measurement effected in Sy.No.81/1
and pursuant to the same, cancellation order was passed by the Tahsildar on
11.05.1972. Consequently, the Tahsildar rectified the index of lands on
16.06.1972 and issued a copy on 25.06.1973 restoring the entire measurement of
6 acres 30 guntas in the name of Town Extension. Thereafter, Sarvodaya High
School claimed ownership under Mohamad Bokhari and filed O.S.No.268 of 1981
before the District Munsif, Tumkur, which came to be dismissed on 14.11.1988.
The said Sarvodaya High School filed a Regular Appeal in R.A.No.117 of 1988 and
the same also came to be dismissed. Thereafter, the said School filed R.S.A.
No.349 of 1999, which was also dismissed on 28.06.2005. As a result, Sarvodaya
High School has no right over the said property. It is thus, stated by the
Respondent No.2 that the suit property belonged to the Government and was in
possession of the Government High School.
14.2.
On the other hand, the appellant averred that as per the revenue records, Sy No
81 was 7 acres and 15 guntas, of which, one Lankey owned 1 acre and 37 guntas
and Md. Bokhari owned 5 acres and 18 guntas. Out of Lankey’s 1 acre 37 guntas,
1 acre and 10 guntas was acquired for the Government High School, Tumkur and 12
acres for Municipal Road running from the Railway Station to Someshwara
extension in 1919. The remaining 15 guntas continued to be in the possession of
Lankey and later, by his son Chikkanna, prior to 1928. Similarly, out of total
5 acres and 18 guntas of Md Bokhari, 15 guntas was acquired for railways;
7 guntas for municipal road; 2 acres and 22 guntas for the Government High
School. Lankey’s son Chikkanna who owned the 15 guntas and was in possession
prior to 1928 sold the 15 guntas to one Chowdhary Abdul Haq on 29.11.1928 under
a registered sale deed. The revenue khata was made out in the name of Chowdhary
Abdul Haq, who sold it to Abdul Razak under a registered sale deed on
18.07.1938. Subsequently, the said 15 guntas was converted for non-agricultural
purposes by order of the Revenue Commissioner in Order No.DIS.254/42-43 and was
renumbered by the Tumkur Municipality in the name of Abdul Razak in 1944.
Thereafter, the legal heirs of Abdul Razak mortgaged the said property to the
appellant in 1959 and eventually sold it to the appellant vide a registered
sale deed dated 07.12.1970. Since then, the appellant has been in possession of
the same. It is further averred by the appellant that the original Sy. No. 81
was sub-divided as 81/1, 81/2 and 81/1A, as evident from Exs.P.24 and P.27 and
there was no document to prove that the entire land in Sy.No.81 was resumed by
the Government due to non-payment of land revenue by the original owner. Thus,
according to the appellant, he is a bona fide purchaser of 15 guntas of land in
Sy.No.81/1A of Tumkur, which is the subject matter in dispute in O.S.No.505 of
1989, from the legal heirs of Lenkey.
15.
Be that as it may. Earlier, the appellant / Defendant No.1 filed a suit in O.S.
No. 80 of 1978 before the Principal Munsif Court, Tumkur, against
the Public Works Department and State of Karnataka, for permanent
injunction in respect of the same subject property, alleging that he had
purchased the suit property (vacant land) from the legal heirs of Abdul Razak
for a valuable sale consideration on 07.12.1970 and thereafter, the property
was registered in the name of the appellant on 11.02.1971. It was further
alleged that to the north and east of the suit property, there was an open
field belonging to the Government High School, in which, the State had proposed
to construct a Government Girls’ Hostel and hence, there was a likelihood of
the suit property being encroached upon by them. After examining the oral and
documentary evidence, the trial Court held that the appellant was in lawful
possession of the suit property, and thus, decreed the suit in favour of the
appellant, vide judgment dated 30.11.1981. Challenging the same, the State
preferred R.A.No.2/82, which was dismissed by the First Appellate Court, vide
judgment dated 07.04.1984. The further appeal in RSA No.717/1984 preferred by
the State also came to be dismissed on 11.02.1985. The Defendants / authorities
did not claim any right, title and interest over the suit property. There was
no record to state whether any appeal against the said judgment of
the High Court, is pending or disposed of, by this Court. In such
circumstances, based on the available materials, it can be inferred that the
decree of permanent injunction granted by the trial Court in favour of the
appellant, became final and conclusive in respect of the suit property.
16.
Pertinently, it is to be pointed out that during the pendency of the earlier
suit, the appellant filed an interlocutory application under Order VI Rule 17
praying to amend the plaint for declaration of title, which was allowed.
However, he gave up the claim of declaration of title on 05.12.1979 and pressed
only for the relief of permanent injunction against the encroachment made by
the State officials over the suit property and the same was granted in his
favour on 30.11.1981.
17.
Admittedly, neither the plaintiffs in the present suit nor the Government High
School, were made parties to the earlier suit filed by the appellant which was
solely between the appellant and the State, only for the relief of permanent
injunction in respect of the suit property. It is also an admitted fact that
the decree granted in O.S.No.80 of 1978 in favour of the appellant was
challenged by the State before the appellate courts, but ended in dismissal. In
the present suit, from which this appeal arises, the Plaintiff Nos.1 to 4 claim
to be former students of the Government Higher Secondary School now known as
Government Junior College, Tumkur, while the remaining Plaintiffs and Defendant
Nos.4 to 20 are citizens, rate payers or persons interested in protecting
public property. Pursuant to the direction issued by the Government of
Karnataka vide order dated 21.11.1972 in the appeal proceedings between
Sarvodaya High School and the Headmaster of the Government High School, that if
the parties are interested in ascertaining their claims as to the
ownership of the land, they may approach the Civil Courts for appropriate
reliefs, the said plaintiffs preferred the present suit in O.S. No. 505 of 1989
in a representative capacity inter alia seeking a declaration that the decree
obtained by the appellant in O.S.No.80/1978 is not binding on the Respondent
No.2 / State and also a declaration that the Respondent No.2 / State is the
rightful owner of the suit property. As the previous suit was decided on merits
and has attained finality, Respondent No.2/State is bound by the terms of the
decree. Further, as Plaintiffs in the present suit were not parties to the
previous suit and they made no attempt to implead themselves therein, having
complete knowledge of the earlier round of litigations between the appellant
and the State, they have no locus standi to file the present suit, specially in
a representative capacity, wherein they are attempting to obtain reliefs for
respondent No.2/State, which itself is barred from encroaching the suit
property. Therefore, we are of the opinion that the present suit filed by the
plaintiffs is not maintainable.
18.
Though it was contended on the side of the contesting Respondents that the suit
schedule property was never in possession of the appellant / Defendant No.1 or
in possession of his predecessors in title and the appellant did not get the
actual possession of the suit property under the alleged sale and he trespassed
into the property illegally and now, put up stone slabs only in 1985, i.e.,
after the suit in O.S. No. 80/1978 came to be attained finality; till then, the
Respondent No.2 / Defendant No.3 was in actual possession of the same
by using it as playground; and thus, the possession of the appellant over
the suit property is unlawful and he is liable to be ejected, we cannot accept
the same, as it is evident that the Respondent No.2 / State did not claim any
right, interest or title over the suit property and they did not adduce any
concrete evidence to show that the suit property was in actual possession of
the Government in the earlier round of litigations in O.S. No. 80/1978. As
such, they cannot now be permitted to raise the same in the subsequent suit
filed by the third parties, that too, in a representative capacity. However,
the trial Court erroneously entertained the suit and partly decreed the same in
favour of the plaintiffs. Though the said decree was set aside by the First
Appellate Court, the High Court decreed the suit as prayed for, by the judgment
and order impugned in this appeal.
19.
In view of the reasons stated above, the suit from which the present appeal
arises, is not maintainable in law and is liable to be dismissed. Hence, we
need not go into the other contentions raised by the parties.
20.
In fine, we set aside the judgments and decrees / orders passed by the Courts
below and dismiss the suit filed by the Respondent No.1 and other plaintiffs.
However, we make it clear that we are not expressing any opinion on the issue
of title of the property and it is for the parties to approach the competent
civil court for appropriate relief by adducing necessary oral
and documentary evidence.
21.
Accordingly, this appeal stands disposed of. The parties shall bear their own
costs.
22.
Connected miscellaneous application(s), if any, shall stand disposed of.
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