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CASE NO.: Appeal (civil)  992-993 of 1997

PETITIONER: REMCO Inds. Workers House Bldg Coop. Soc.     

RESPONDENT: Vs. Lakshmeesha  M. & Ors.                       

DATE OF JUDGMENT: 28/08/2003

BENCH: Shivaraj V. Patil & [D.M. Dharmadhikari.

JUDGMENT: J U D G M E N T

Dharmadhikari J.

       These two appeals arise out of common judgment dated  06.9.1996 passed by the High Court of Karnataka  at Bangalore  in  cross appeals filed by the plaintiff and defendants [Regular First  Appeal Nos. 191/1987 & 747/1986] against the  judgment dated  30.10.1986 of City Civil Court, Bangalore in Civil Suit No.5634 of  1980. The appellant which is a housing co-operative society of  workers in REMCO Industries, was defendant no. 1 before the trial  court.           The subject matter of dispute is  the land in Survey No. 132/2  measuring 1 acre 3 guntas [now said to have been merged into  Survey No. 305] situate in village Kempapur (now part of Bangalore  City). The present appellant â\200\223 Society of workers claims title to the  land and it is submitted that it has built houses for its members on it.  It is not in dispute that the suit land  was an Inam land.  Inams were  abolished by Karnataka (Personal & Miscellaneous) Inams Abolition  Act, 1954. Under the said Act, tenants in occupation of land are given  preferential right to apply for Occupancy Rights and if they fail to do  so, the Inamdar has been given a right to apply for grant of  Occupancy Rights.          The plaintiff [respondent no. 1 herein] is the purchaser of suit  land from Smt. Subbalakshamma, the Inamdar.  One Muniyappa who  claimed to be a tenant, applied  on 22.4.1959 for grant of occupancy  rights - amongst others on the suit land. His application for grant of  Occupancy Rights for suit land in Survey No. 132/2 with other lands  was allowed by the Special Deputy Commissioner by Order dated  28.5.1965 which was produced by the defendants before the trial  court and was admitted as Ex. D-3  in the suit. During pendency of  application for grant of Occupancy Rights, Muniyappa’s heirs sold the  suit land with other lands to REMCO factory in 1963.  REMCO factory  obtained permission for conversion of the use of land for non- agricultural purpose. The REMCO factory then sold the suit land with  other 24 Acres of land to the present appellant â\200\223 Society of its  workers for construction of housing colony.  

       The plaintiff’s case is that three years after the grant of  Occupancy Rights  to Muniyappa, by order dated 28.5.1965 of   Special Deputy Commissioner [Ex. D-3], the Inamdar - Smt.  Subbalakshamma made an application on 16.12.1968 to the Special  Deputy Commissioner for grant of Occupancy Rights for the  remaining areas in the Inam land in her favour. In her application,  she did not claim any specific land but prayed that "the court be  pleased to determine the extent of land which she is entitled to be  registered as an occupant and register her name as an occupant â\200¦â\200¦."

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       On the basis of above application, the Special Deputy  Commissioner passed an order dated 09.12.1969 [marked as Ex. P- 1] granting Occupancy Rights to her amongst other lands in Survey  No. 132/2 area 1 Acre 3 Guntas.  

       The plaintiff based her title and claimed possession of the suit  land in Survey No. 132/2 on the basis of the grant of Occupancy  Rights in her favour by the Order dated 09.12.1969 passed by Special  Deputy Commissioner [Ex. P-1] in which the area in Survey No.  132/2 granted is 1 acre 3 guntas  which is less than her claim  in the  suit to the land  of  area  1 acre 12 guntas.  

       It is true that in the written statement of the defendant no. 1,  there is no specific reference to the order dated 28.5.1965 [Ex. D-3]  passed by Special Deputy Commissioner granting Occupancy Rights  to tenant Muniyappa in Survey No. 132/2 area 1 acre 3 guntas. In  the course of trial, however, copy of the order dated 28.5.1965  passed by  the Special Deputy Commissioner in favour of tenant  Muniyappa was admitted in evidence and marked as Ex. D-3 without  any objection by the plaintiff.  

       On the provisions of the Act under consideration, it is not  disputed, as a legal position, by the counsel appearing for the parties  that the Inamdar could be granted Occupancy Rights in Inam lands  on which no tenant had been granted any Occupancy Rights. The  necessary consequences of this legal position is that if the suit land is  included in the grant of Occupancy Rights to Muniyappa in the order  dated 28.5.1965 [Ex. D-3] of the Special Deputy Commissioner, the  same land could not have been granted to Inamdar,  Subbalakhshamma by order dated 09.12.1969 [Ex. P-1]. Apparently,  suit land in Survey No. 132/2 is carved out from Survey No. 132 and  the land in Survey No. 132/2 also has an area larger than 1 acre 3  guntas because the plaintiff’s own suit is for title and possession of  land in the said Survey No. 132/2 to the extent of 1 acre 12 guntas.  

       It has also been pointed out from the contents of the order  dated 09.12.1969 [Ex. P-1] passed by Special Deputy Commissioner  in favour of Inamdar that she was granted Occupancy Rights amongst  others in suit land of  Survey No. 132/2 to the extent of her  undivided 1/7th share. The identification  of land in Survey No. 132/2  to the extent of  1/7th share of the Inamdar was not done in the order  dated 09.12.1969. The plaintiff’s case is that  the identification of  land in Survey No. 132/2 to the extent of 1 acre 3 guntas was done  when on the basis of grant of Occupancy Rights to the extent of 1/7th  share in her favour, she approached Revenue authorities for mutation  of her name. It is in the mutation proceeding that the Occupancy  Rights to the extent of her 1/7th share in Survey No. 132/2 were  identified in her favour. These documents are the basis of her suit for  title and possession of Survey No. 132/2 area 1 acre 3 guntas.  

       The trial court being the VI Addl. City Civil Court of Bangalore  City  partly decreed the suit by declaring the respondent/plaintiff to  be owner of 1 acre 3 guntas of land in Survey No. 305/2 which is said  to be the new number of old Survey No. 132/2. The trial court did not  grant any decree for delivery of possession  of land on a finding that  the plaintiff’s Occupancy Rights were declared for her 1/7th share and  she would have to work out her rights for possession of specific  portion of land in her favour by a suit for partition.  

               The High Court in cross appeals preferred by plaintiff and  defendant no.1  not only confirmed the decree of declaration of the  title of the plaintiff to the suit land but also granted decree of delivery  of possession of the land holding that if  in the suit land of Survey No.  132/2, no Occupancy Rights had been granted to any tenant, the

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plaintiff’s 1/7th share could be ascertained to the extent of 1 acre 3  guntas.  

       The learned senior counsel appearing for the appellant submits  that the main contesting issue between the parties is whether  the  suit land in Survey No. 132/2 area 1 acre 3 guntas being already  covered by the grant dated 28.5.1965 [Ex. D-3] in favour of the  tenant, could be a subject of further grant in favour of the Inamdar  under order dated 09.12.1969 [Ex. P-1]. It is further submitted that  as Survey No.132/2 is apparently carved out of  Survey No. 132. The  Survey  No. 132/2, according to plaintiff’s own claim has an - area  larger than 1 acre 3 guntas because the decree for declaration and  possession is sought for area 1 acre 12 guntas in Survey No. 132/2.  The other contesting issue before the court was identity of the suit  land. The legal position is not controverted that the Inamdar could be  granted Occupancy Rights only in respect of land in the Inam for  which no Occupancy Rights had been granted to the tenants. The  learned counsel appearing for the appellant, therefore, submits that  the plaintiff’s suit ought to have been dismissed for want of  identification of the suit land  under the alleged grant dated  09.12.1969 [Ex. P-1] made in favour of Inamdar. In the alternative,  for the appellant, it is submitted that the case be remitted to the trial  court for framing a specific issue on the identity of the suit land  covered by earlier order dated 28.5.1965 [Ex.D-3] containing grant  of Occupancy Rights in Survey No. 132/2 area 1 acre 3 guntas in  favour of the tenant Muniyappa and the identity of the suit land in the  grant dated 09.12.1969 [Ex.P-1] made in favour of erstwhile Inamdar  for the same Survey No. 132/2  with same extent or area - 1 acre 3  guntas.  

       The prayers made in the appeals have been strongly opposed  by the learned senior counsel appearing for plaintiff/ respondent. It is  submitted that although order dated 28.5.1965 in favour of the  tenant was produced in the trial court and marked as an admitted  document [Ex. D-3], it was never made foundation of the title of the  defendant by raising pleadings in that behalf in the written statement  of defendant no. 1. It is also submitted that at no stage in the trial  court or the High Court in appeals, any issue was raised basing title  of defendant no. 1 on the order dated 28.5.1965 [Ex. D-3]. It is,  therefore, submitted that no case is made out for setting aside the  decree in favour of the plaintiff  or  for remand of the matter to the  trial court for framing and trial of any additional issue based on the  orders dated 28.5.1965 [Ex. D-3] and dated 09.12.1969 [Ex. P-1].  

       After hearing the learned counsel appearing for the parties, we  have formed an opinion that the interest of justice demands remand  of case to the trial court for framing and trial of specific issue on the  grant of Occupancy Rights under order dated 28.5.1965 in favour of  the tenant [Ex. D-3] and the order dated 09.12.1969 [Ex.P-1] in  favour of erstwhile Inamdar. True it is that in the written statement  of defendant no. 1, no clear and specific pleading to base their claim  for title and possession of the suit land on grant dated 28.5.1965 [Ex.  D-3] was raised. No specific prayer appears to have been made either  in the trial court  or in the High Court in appeals to consider issue of  identity of the land on the basis of the grant dated 28.5.1965 [Ex. D- 3].  

       It cannot, however, be lost sight of that the burden to prove   title and claim for possession of specific land in Survey No. 132/2 was  initially on the plaintiff. The defendant no. 1 in the written statement  contested the claim of the plaintiff and claimed title in itself. The  grant of Occupancy Rights in favour of tenant Muniyappa  contained  in the order dated 28.5.1965 [Ex. D-3] was produced  in the trial  court without objection from the plaintiff and allowed to be exhibited  and marked as Ex. D-3. When such a document of grant of suit land

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to the extent of 1 acre 3 guntas in favour of defendant no. 1 was  before the trial court, it was necessary for it to consider its effect on  the subsequent grant dated 09.12.1969 [Ex. P-1] in favour of the  erstwhile Inamdar. The legal position not in dispute  is that if the suit  land in Survey No. 132/2 area 1 acre 3 guntas had  already been  granted by order dated 28.5.1965 [Ex. D-3] to the tenant,  Muniyappa, the same land could not have  formed part of the grant to  the extent of 1/7th share to erstwhile Inamdar in the order dated  09.12.1969  [Ex. P-1]. A clear legal issue, based on earlier grant  dated 28.5.1965 [Ex. D-3] and the subsequent grant dated  09.12.1969 [Ex. P-1] with the identity of the land under the two  grants  did arise before the trial court as well as the appellate court.  The said issue has not been answered by any of the two courts  below. The plaintiff has to succeed on the strength of its own case  and not on the weakness of the case of the defendant. In opposing  the prayer for remand, learned counsel appearing for the  plaintiff/respondent has placed strong reliance on the decision of  Privy Council in Kanda & Ors vs. Waghu [AIR (37) 1950 Privy  Council 68].  The contention advanced is that since pleadings based  on Ex. D-3 were not raised in the written statement of defendant no.  1 and no issue on the basis of Ex. D-3 having been raised in the trial  court, this Court should not remit the matter for retrial on the said  issue.  

       As we have stated above, document [Ex. D-3] was admitted  and marked as evidence before the trial court. When such document  was admitted, naturally the question of effect of that document on  the subsequent grant [Ex. P-1] in favour of plaintiff did arise for  consideration of the trial court as well as appellate court.  Surprisingly, the trial court while discussing the claim of title of the  plaintiff to Survey No. 132/2 for area 1 acre 12 guntas did not make  any mention of the document admitted and exhibited before it as Ex.  D-3. The relevant part of the discussion in the judgement of  trial  court apparently shows that the document of earlier grant of  Occupancy Rights to the tenant [Ex. D-3] had been overlooked. The  said part of judgment reads thus :-    "They also do not show  what was the extent of land comprised in  S.No. 132/2. The only material available on record to show the extent  of land in S.No. 132/2 is Ex. P-12 the revised  mutation order passed  by the Deputy Tahsildar of Bangalore North Taluk dated 30.5.1972.  According to para 2 of the said order the total extent of area  comprised in S.No. 132/2 corresponding to S.Nos. 305 and 472 was 8  acreas and 12 guntas and if that is so than 1/7th of the total extent  of land comprised in S.No. 132/2 would be 1 acre 7.4 guntas and not 1  acre and 12 guntas. No doubt the Deputy Tahsildar, North Taluk in  Ex.P-12 has stated that Subbalakshmamma’s share was 1 acre 12  guntas as there was a balance of â\200\223 acres 29 guntas as remaining in  S.No. 305 after the lands previously registered in the name of one  Muniyappa, Sakamma and Lakshmamma and therefore it was possible  to allot 1 acre 12 guntas in S.No. 305 and he has therefore  recognised the share of P.W. 2 Subbalakshmamma in S.No. 305 and as  1 acre and 12 guntas. However, the question is not whether 1 acre and  12 guntas was available in S.No. 305 so that he could recognise P.W. 2  Subbalakshmamma as the owner of the said 1 acre and 12 guntas in  S.No. 305 which is now given S.No. 305/2 but as to whether  Subbalakshmamma was entitled to in pursuance to the order passed  as per the original of Ex. P-1 to 1 acre and 12 guntas.  

       In the cross appeals before the High Court, document [Ex. D-3]  had again been overlooked. See the following part of the judgment of  the High Court in paragraph 18 :-  

"At some stage it was canvassed by Sri N.S. Krishnan that the land in

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question and many other lands were purchased by the management of  the REMCO factory  for formation of a layout from the tenants in  the occupation of the Inam land. Not a scrap of paper is produced  in the suit to show that these tenants had claimed occupancy  rights under any provisions of Inams Abolition Act before the  Authority namely the Special Deputy Commissioner for Inams  Abolition. But subsequent purchasers  namely the management of the  REMCO factory have also not made any claim before the authority  for occupancy rights.  [Underlining to supply emphasis]                  From the above resume of facts and the nature of orders of  grants of Occupancy Rights to the contesting parties, we find that the  basic issue of the effect of earlier grant dated 28.5.1965 [Ex. D-3] in  favour of the tenant - Muniyappa on the subsequent grant dated  09.12.1969 [Ex. P-1] in favour of  plaintiff/respondent was neither  addressed to by any of the courts below nor a decision has been  rendered on the same. The issue of effect of  Ex. D-3 on Ex.P-1 and  the identity of the land under the two grants is vital to the just  decision of the case. The powers of the appellate court are not  inhibited by the acts or omissions of the parties. Rule 25  of Order 41  of Code of Civil Procedure empowers the appellate court to frame an  issue and remit it for trial which has been omitted to be framed and  tried by the trial court and which appears to the appellate court  essential to the right decision of the case. Rule 23 A Order 41  introduced by CPC Amendment Act No. 104 of 1976 w.e.f. 1.2.1977  confers powers on the appellate court to remand whole suit for  retrial. In our considered opinion, this is a fit case where this Court  should exercise powers of remand under Order 41 Rule 25 read with  Rule 23 A of CPC.  

       Consequently, we allow these appeals. The judgment and  decree dated 30.10.1986 of the City Civil Court, Bangalore and the  common judgment and decree dated 06.9.1996 of the High Court in  appeals are set aside. The whole case is remitted to the trial court for  deciding specific issues on the effect of grant dated 28.5.1965 [Ex.D- 3] on the subsequent grant dated 09.12.1969 [Ex. P-1] and the  identity of the land under the two grants. The trial court shall recast  the issues with the issue indicated above and after giving additional  opportunities to both the parties to lead additional evidence on the  issues involved, decide the suit afresh in accordance with law.  

       In view of the order of remand passed by us, we leave the  parties to bear their own costs in these appeals.