REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPERAL Nos. 4757-4760 OF 2018
[Arising out of SLP (C) No.32252-32255 of 2016]
M/s Eureka Builders & Ors. .. Appellant(s)
Versus
Gulabchand s/o Veljee Dand Since
Deceased by L.Rs. & Ors.Etc.Etc. .. Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) Leave granted.
2) 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 the plaintiff’s appeal and
1
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 1/5th share in it along with defendants
Nos.1 to 4, who are legal representatives of late Shah
Veljee Kanjee.
3) In 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
the predecessor-in-title of 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 appeals arise.
4) The 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 of dates.
2
5) The 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 and 2.
6) The 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 suit land").
7) The suit land was a "watan" property under the
Maharashtra Hereditary Offices Act (hereinafter
referred to as “the MHO Act”) and on its repeal in
3
1961, was governed by the Karnataka Village
Abolition Act, 1961 (hereinafter referred to as “the
KVA Act”).
8) The suit land originally belonged to three
persons namely, Marigouda Patil, Basangouda Patil
and Adveppagouda Patil (hereinafter referred to as
“three PATIL”).
9) On 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 on 09.03.1920.
10) In 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 highest bidder.
4
11) On 14.05.1943, Shah Veljee Kanjee purchased
another parcel of land bearing CTS No.366 by direct
sale/purchase. Shah Veljee Kanjee died on
02.12.1957 leaving behind his widow-Gunwantibai,
two major daughters and four minor sons. By
inheritance, the legal representatives stepped into his
shoes and became the joint owners of the suit land.
12) On 19.12.1957, the widow and 2 major
daughters of late Shah Veljee Kanjee sold the suit
land to one Gadag Co-operative Cotton Sales Society
Ltd.-defendant No. 17 (hereinafter referred to as the
“Society”).
13) The 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
5
praying therein for a declaration that the sale made
by their mother and two sisters is bad in law and
void to the extent of plaintiff's share (5/8th) in the suit
land. The mother, two sisters and the Society
contested the suit as defendants.
14) This suit was, however, decreed on 26.08.1977
by the Principal Civil Judge (Sr. Division) in plaintiff's
favour. 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 5/8th share in the suit land.
15) This 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) in plaintiff's
favour became final.
6
16) In execution of this decree, the plaintiff and
defendant Nos.1-4, who are the legal representatives
of late Shah Veljee Kanjee, were accordingly placed in
joint possession of their shares in the suit land.
17) As 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 and conditions.
18) In 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 higher Courts.
7
19) During 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 these submissions.
20) It 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
8
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 builders - a firm and their
partners (appellants herein).
21) The suit was filed for partition and separate
possession of plaintiff's 1/5th share in the suit land
and also for grant of permanent injunction
restraining the two intending buyers/purchasers of
the suit land from interfering in plaintiff's possession
over the suit land.
22) In 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 this Court.
9
23) So 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 the suit.
24) The 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 by limitation.
25) So far as the merits of the claim is concerned,
appellant No.1 (defendant No.18) denied the
plaintiff's title 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 two
10
re-grant orders (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 on 23.03.2001.
26) It 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 two re-grant
orders 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 their title.
11
27) Issues were framed and parties adduced their
evidence. By judgment/decree dated 07.11.2014, the
III Addl. Senior Civil Judge, Hubli decreed the
plaintiff's suit in part and passed the preliminary
decree of partition and separate possession in
relation to the suit land in plaintiff's favour as prayed
in the suit.
28) The Additional Senior Civil Judge answered
almost all the issues in plaintiff's favour and held
that the plaintiff is entitled for 1/5th 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 1/5th share each in
leasehold rights in respect of the suit land along with
the plaintiff.
29) The plaintiff, the legal representatives of
defendant Nos. 2, 3 and 4 and defendant No. 17-
Society felt aggrieved of certain findings about the
12
ownership status of the plaintiff in the suit land and
accordingly filed four separate first appeals in the
High Court at Bangalore.
30) So far as the present appellants are concerned,
they did not prefer any appeal as they seemed to be
satisfied with the judgment of the Trial Court.
31) By 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 1/5th share in the suit land along with
defendants, who are legal representatives of late
Shah Veljee Kanjee like the plaintiff.
32) It is against this judgment of the High Court,
the appellants herein (defendant Nos. 18 to 25 - who
13
are builder, firm and its partners) have felt aggrieved
and filed the present appeals by way of special leave
petitions in this Court.
33) Heard Mr. Shekhar Naphade, learned senior
counsel for the appellants and Mr. Basava Prabhu S.
Patil, learned senior counsel, Mr. G.V.
Chandrashekhar, Mr. Ranbir Singh Yadav, Mr.
Raghavendra S. Srivastava, learned counsel for the
respective respondents.
34) 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
reasoning infra.
14
35) At 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 (three
PATIL).
36) In 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 the case.
15
37) As mentioned above, the appellant alone was
contesting the suit as defendant No.18. It is not in
dispute that original holders (three PATIL) did not
contest the suit. It is also not in dispute that the
appellant was satisfied with the judgment/decree
passed by the Trial Court, therefore, they did not file
any appeal in the High Court.
38) It is with these background facts of the case, we
have to examine the question arising in these appeals
as to whether the respondent (plaintiff) was able to
prove his subsisting title over the suit land on the
date of filing of the suit and, if so, how, or in the
alternative, whether the appellants (builder, firm and
its partners) were able to prove the subsisting title of
the original holders (three PATIL) over the suit land, if
so, how.
39) In our considered opinion, the appellants have
failed to substantiate the right, title and interest of
16
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 suit land.
40) It 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 or otherwise.
41) In 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
tangible property.
42) So, once it is proved that on the date of transfer
of any tangible property, the seller of the property did
17
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 void transfer.
43) In such eventuality and subject to any terms
and conditions if agreed between the parties, a buyer
will have a right to claim refund of sale consideration
from his seller, which he paid for purchase of the
property under the law of contract. The reason is
that the contract to purchase has failed and,
therefore, the parties have to be restored back to
their original positions, which existed at the time of
execution of the contract.
44) This principle of law may apply inter se the
original holders (three PATIL) of the land and the
intending buyers of the suit land with which we are
not concerned in this case because the present
18
litigation does not arise between these parties and
nor we are deciding the inter se rights of these parties
in these appeals.
45) This principle we have mentioned only to clarify
the inter se rights of the parties against each other in
relation to the suit land and especially the right of
the appellants against the original holders(three
PATIL) and not beyond it.
46) In our considered opinion, the reasons as to
why the appellants failed to prove the subsisting
right, title and interest of the original holders
(intending sellers-three PATIL) in the suit land are
more than one as are set out by us hereinbelow.
47) First, 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
19
the suits were dismissed by the Civil Court on
23.11.2004.
48) These 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 (three PATIL).
49) It 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 on 23.03.2001.
50) Second, it cannot be disputed that original
holders (three PATIL) had parted with the suit land
20
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 Veljee Kanjee.
51) Since 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 Veljee Kanjee.
52) It 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 the
21
purchaser-Society. This suit was decreed in favour of
legal representative of Shah Veljee Kanjee on
26.08.1977 and remained upheld up to this Court.
53) It is due to these reasons also, all the rights,
title and interest of original holders (three PATIL) in
the suit land stood extinguished.
54) Now coming to the main argument of Mr.
Shekhar Naphade, learned senior counsel for the
appellants, which he pressed in service with
vehemence.
55) Learned senior counsel urged that the original
holders of the suit land (three PATIL) having parted
with the suit land in 1942 and 14.05.1943, again got
back the suit land by way of re-grant in their favour
by order dated 31.03.1973 in respect of land (CTS
No. 361) passed by the State under KVA Act of 1961
and by other re-grant order dated 01.04.1973 passed
by the State in respect of land (CTS No. 366).
22
56) It was, therefore, his submission that in this
way, the title in the suit land stood reverted to the
original holders (three PATIL) from the dates of these
two orders.
57) On this basis, the contention of the learned
counsel for the appellants was that whatever rights,
title and interest in the suit land which the
respondent (plaintiff) might have got in 1942 and on
14.05.1943 while acquiring the suit land, the same
stood extinguished on account of re-grant made by
the State in favour of original holder (three PATIL) in
1973 by the two orders referred above.
58) We find no merit in this submission for more
than one reason. Assuming for the sake of argument
that as a result of the re-grant orders 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
23
their right of ownership over the suit land for a long
time, hence their right of ownership stood
extinguished.
59) It was only after 31 years from the re-grant
order, 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 attained finality.
60) In our considered opinion, whatever so-called
rights, title and interest which the original holders
derived from the orders of re-grant in 1973 in the suit
property in their favour, the same stood extinguished
by efflux of time.
61) The 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
24
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 of re-grant, i.e.,
1973.
62) They, 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 stood
extinguished.
63) Section 27 of the Limitation Act deals with
extinguishment of right to property. It says that at
the determination of the period prescribed in the Act
for any person to institute a suit for possession of
any property, his right to such property shall be
extinguished. Articles 64 and 65 of the Schedule
provide 12 years period for filing a suit to claim
possession of any immovable property. The period of
25
12 years prescribed in these two articles is required
to be counted from “the date of dispossession”
(Article 64) and “when the possession of the
defendant becomes adverse to the plaintiff” (Article
65).
64) As 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, re-grant in relation to the suit land,
within 12 years from the date of re-grant and,
therefore, by virtue of Section 27 of the Limitation
Act, their all rights, title and interest in the suit land
got extinguished.
65) In 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 of re-grant dated 31.03.1973
and 01.04.1973 made by the State so as to divest the
26
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 in 1942/43.
66) This issue can be examined from yet another
legal angle on the admitted facts situation arising in
the case.
67) It 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 (three PATIL).
68) In 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 to seek.
27
69) Admittedly, 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 direct sale/purcahse.
70) In 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 whole world.
71) The 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 of law.
28
72) Mr. Shekhar Naphade, learned senior counsel
then referred the provisions of MHO Act and KVA Act
and pointed out the nature of grant and the re-grant
of the suit land made in favour of the original holders
by the State and how it devolved on the holders etc.
73) In 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 the appellants.
74) In other words, once the rights of the original
holders in the suit land stood extinguished, this
submission does not survive for consideration on its
merits.
75) A 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 case here.
29
76) There is, however, another infirmity in the case
of the appellants, which disentitle them to claim any
relief in relation to the suit land.
77) As 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 made
re-grant of the suit land in favour of the original
holders (three PATIL).
78) In 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
30
favour of the original holders (three PATIL) in these
proceedings.
79) That 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 Veljee Kanjee.
80) The 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
31
Civil Court, their all rights in the suit land itself got
extinguished on account of efflux of time (31 years)
as has been held supra.
81) It is for these reasons also, we are of the view
that the appellants have no case.
82) In 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 of re-grant in their favour
(assuming the re-grant to 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.
32
83) In view of the foregoing discussion, we are of the
considered opinion that looking at the issues involved
in this case from any angle, these appeals have no
merits. The appeals thus fail and are accordingly
dismissed.
.………………………………..J
(R.K. AGRAWAL)
..………………………………J.
(ABHAY MANOHAR SAPRE)
New Delhi,
May 03, 2018
33
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPERAL Nos. 4757-4760 OF 2018
[Arising out of SLP (C) No.32252-32255 of 2016]
M/s Eureka Builders & Ors. .. Appellant(s)
Versus
Gulabchand s/o Veljee Dand Since
Deceased by L.Rs. & Ors.Etc.Etc. .. Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) Leave granted.
2) 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 the plaintiff’s appeal and
1
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 1/5th share in it along with defendants
Nos.1 to 4, who are legal representatives of late Shah
Veljee Kanjee.
3) In 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
the predecessor-in-title of 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 appeals arise.
4) The 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 of dates.
2
5) The 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 and 2.
6) The 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 suit land").
7) The suit land was a "watan" property under the
Maharashtra Hereditary Offices Act (hereinafter
referred to as “the MHO Act”) and on its repeal in
3
1961, was governed by the Karnataka Village
Abolition Act, 1961 (hereinafter referred to as “the
KVA Act”).
8) The suit land originally belonged to three
persons namely, Marigouda Patil, Basangouda Patil
and Adveppagouda Patil (hereinafter referred to as
“three PATIL”).
9) On 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 on 09.03.1920.
10) In 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 highest bidder.
4
11) On 14.05.1943, Shah Veljee Kanjee purchased
another parcel of land bearing CTS No.366 by direct
sale/purchase. Shah Veljee Kanjee died on
02.12.1957 leaving behind his widow-Gunwantibai,
two major daughters and four minor sons. By
inheritance, the legal representatives stepped into his
shoes and became the joint owners of the suit land.
12) On 19.12.1957, the widow and 2 major
daughters of late Shah Veljee Kanjee sold the suit
land to one Gadag Co-operative Cotton Sales Society
Ltd.-defendant No. 17 (hereinafter referred to as the
“Society”).
13) The 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
5
praying therein for a declaration that the sale made
by their mother and two sisters is bad in law and
void to the extent of plaintiff's share (5/8th) in the suit
land. The mother, two sisters and the Society
contested the suit as defendants.
14) This suit was, however, decreed on 26.08.1977
by the Principal Civil Judge (Sr. Division) in plaintiff's
favour. 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 5/8th share in the suit land.
15) This 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) in plaintiff's
favour became final.
6
16) In execution of this decree, the plaintiff and
defendant Nos.1-4, who are the legal representatives
of late Shah Veljee Kanjee, were accordingly placed in
joint possession of their shares in the suit land.
17) As 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 and conditions.
18) In 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 higher Courts.
7
19) During 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 these submissions.
20) It 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
8
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 builders - a firm and their
partners (appellants herein).
21) The suit was filed for partition and separate
possession of plaintiff's 1/5th share in the suit land
and also for grant of permanent injunction
restraining the two intending buyers/purchasers of
the suit land from interfering in plaintiff's possession
over the suit land.
22) In 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 this Court.
9
23) So 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 the suit.
24) The 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 by limitation.
25) So far as the merits of the claim is concerned,
appellant No.1 (defendant No.18) denied the
plaintiff's title 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 two
10
re-grant orders (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 on 23.03.2001.
26) It 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 two re-grant
orders 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 their title.
11
27) Issues were framed and parties adduced their
evidence. By judgment/decree dated 07.11.2014, the
III Addl. Senior Civil Judge, Hubli decreed the
plaintiff's suit in part and passed the preliminary
decree of partition and separate possession in
relation to the suit land in plaintiff's favour as prayed
in the suit.
28) The Additional Senior Civil Judge answered
almost all the issues in plaintiff's favour and held
that the plaintiff is entitled for 1/5th 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 1/5th share each in
leasehold rights in respect of the suit land along with
the plaintiff.
29) The plaintiff, the legal representatives of
defendant Nos. 2, 3 and 4 and defendant No. 17-
Society felt aggrieved of certain findings about the
12
ownership status of the plaintiff in the suit land and
accordingly filed four separate first appeals in the
High Court at Bangalore.
30) So far as the present appellants are concerned,
they did not prefer any appeal as they seemed to be
satisfied with the judgment of the Trial Court.
31) By 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 1/5th share in the suit land along with
defendants, who are legal representatives of late
Shah Veljee Kanjee like the plaintiff.
32) It is against this judgment of the High Court,
the appellants herein (defendant Nos. 18 to 25 - who
13
are builder, firm and its partners) have felt aggrieved
and filed the present appeals by way of special leave
petitions in this Court.
33) Heard Mr. Shekhar Naphade, learned senior
counsel for the appellants and Mr. Basava Prabhu S.
Patil, learned senior counsel, Mr. G.V.
Chandrashekhar, Mr. Ranbir Singh Yadav, Mr.
Raghavendra S. Srivastava, learned counsel for the
respective respondents.
34) 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
reasoning infra.
14
35) At 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 (three
PATIL).
36) In 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 the case.
15
37) As mentioned above, the appellant alone was
contesting the suit as defendant No.18. It is not in
dispute that original holders (three PATIL) did not
contest the suit. It is also not in dispute that the
appellant was satisfied with the judgment/decree
passed by the Trial Court, therefore, they did not file
any appeal in the High Court.
38) It is with these background facts of the case, we
have to examine the question arising in these appeals
as to whether the respondent (plaintiff) was able to
prove his subsisting title over the suit land on the
date of filing of the suit and, if so, how, or in the
alternative, whether the appellants (builder, firm and
its partners) were able to prove the subsisting title of
the original holders (three PATIL) over the suit land, if
so, how.
39) In our considered opinion, the appellants have
failed to substantiate the right, title and interest of
16
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 suit land.
40) It 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 or otherwise.
41) In 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
tangible property.
42) So, once it is proved that on the date of transfer
of any tangible property, the seller of the property did
17
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 void transfer.
43) In such eventuality and subject to any terms
and conditions if agreed between the parties, a buyer
will have a right to claim refund of sale consideration
from his seller, which he paid for purchase of the
property under the law of contract. The reason is
that the contract to purchase has failed and,
therefore, the parties have to be restored back to
their original positions, which existed at the time of
execution of the contract.
44) This principle of law may apply inter se the
original holders (three PATIL) of the land and the
intending buyers of the suit land with which we are
not concerned in this case because the present
18
litigation does not arise between these parties and
nor we are deciding the inter se rights of these parties
in these appeals.
45) This principle we have mentioned only to clarify
the inter se rights of the parties against each other in
relation to the suit land and especially the right of
the appellants against the original holders(three
PATIL) and not beyond it.
46) In our considered opinion, the reasons as to
why the appellants failed to prove the subsisting
right, title and interest of the original holders
(intending sellers-three PATIL) in the suit land are
more than one as are set out by us hereinbelow.
47) First, 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
19
the suits were dismissed by the Civil Court on
23.11.2004.
48) These 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 (three PATIL).
49) It 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 on 23.03.2001.
50) Second, it cannot be disputed that original
holders (three PATIL) had parted with the suit land
20
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 Veljee Kanjee.
51) Since 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 Veljee Kanjee.
52) It 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 the
21
purchaser-Society. This suit was decreed in favour of
legal representative of Shah Veljee Kanjee on
26.08.1977 and remained upheld up to this Court.
53) It is due to these reasons also, all the rights,
title and interest of original holders (three PATIL) in
the suit land stood extinguished.
54) Now coming to the main argument of Mr.
Shekhar Naphade, learned senior counsel for the
appellants, which he pressed in service with
vehemence.
55) Learned senior counsel urged that the original
holders of the suit land (three PATIL) having parted
with the suit land in 1942 and 14.05.1943, again got
back the suit land by way of re-grant in their favour
by order dated 31.03.1973 in respect of land (CTS
No. 361) passed by the State under KVA Act of 1961
and by other re-grant order dated 01.04.1973 passed
by the State in respect of land (CTS No. 366).
22
56) It was, therefore, his submission that in this
way, the title in the suit land stood reverted to the
original holders (three PATIL) from the dates of these
two orders.
57) On this basis, the contention of the learned
counsel for the appellants was that whatever rights,
title and interest in the suit land which the
respondent (plaintiff) might have got in 1942 and on
14.05.1943 while acquiring the suit land, the same
stood extinguished on account of re-grant made by
the State in favour of original holder (three PATIL) in
1973 by the two orders referred above.
58) We find no merit in this submission for more
than one reason. Assuming for the sake of argument
that as a result of the re-grant orders 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
23
their right of ownership over the suit land for a long
time, hence their right of ownership stood
extinguished.
59) It was only after 31 years from the re-grant
order, 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 attained finality.
60) In our considered opinion, whatever so-called
rights, title and interest which the original holders
derived from the orders of re-grant in 1973 in the suit
property in their favour, the same stood extinguished
by efflux of time.
61) The 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
24
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 of re-grant, i.e.,
1973.
62) They, 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 stood
extinguished.
63) Section 27 of the Limitation Act deals with
extinguishment of right to property. It says that at
the determination of the period prescribed in the Act
for any person to institute a suit for possession of
any property, his right to such property shall be
extinguished. Articles 64 and 65 of the Schedule
provide 12 years period for filing a suit to claim
possession of any immovable property. The period of
25
12 years prescribed in these two articles is required
to be counted from “the date of dispossession”
(Article 64) and “when the possession of the
defendant becomes adverse to the plaintiff” (Article
65).
64) As 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, re-grant in relation to the suit land,
within 12 years from the date of re-grant and,
therefore, by virtue of Section 27 of the Limitation
Act, their all rights, title and interest in the suit land
got extinguished.
65) In 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 of re-grant dated 31.03.1973
and 01.04.1973 made by the State so as to divest the
26
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 in 1942/43.
66) This issue can be examined from yet another
legal angle on the admitted facts situation arising in
the case.
67) It 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 (three PATIL).
68) In 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 to seek.
27
69) Admittedly, 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 direct sale/purcahse.
70) In 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 whole world.
71) The 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 of law.
28
72) Mr. Shekhar Naphade, learned senior counsel
then referred the provisions of MHO Act and KVA Act
and pointed out the nature of grant and the re-grant
of the suit land made in favour of the original holders
by the State and how it devolved on the holders etc.
73) In 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 the appellants.
74) In other words, once the rights of the original
holders in the suit land stood extinguished, this
submission does not survive for consideration on its
merits.
75) A 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 case here.
29
76) There is, however, another infirmity in the case
of the appellants, which disentitle them to claim any
relief in relation to the suit land.
77) As 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 made
re-grant of the suit land in favour of the original
holders (three PATIL).
78) In 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
30
favour of the original holders (three PATIL) in these
proceedings.
79) That 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 Veljee Kanjee.
80) The 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
31
Civil Court, their all rights in the suit land itself got
extinguished on account of efflux of time (31 years)
as has been held supra.
81) It is for these reasons also, we are of the view
that the appellants have no case.
82) In 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 of re-grant in their favour
(assuming the re-grant to 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.
32
83) In view of the foregoing discussion, we are of the
considered opinion that looking at the issues involved
in this case from any angle, these appeals have no
merits. The appeals thus fail and are accordingly
dismissed.
.………………………………..J
(R.K. AGRAWAL)
..………………………………J.
(ABHAY MANOHAR SAPRE)
New Delhi,
May 03, 2018
33
