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Laxmibai Vs. Madhankar Vinayak Kulkarni and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 71 of 1965
Judge
Reported inAIR1968Kant82; AIR1968Mys82; (1967)1MysLJ27
ActsCode of Civil Procedure (CPC), 1908 - Sections 16, 17 and 115 - Order 1, Rule 3
AppellantLaxmibai
RespondentMadhankar Vinayak Kulkarni and ors.
Excerpt:
.....correct, because though there were two alienations, in favour of different persons, yet there is a single cause of action to recover the alienated properties, that is, the death of vasudeo, who, by virtue of the agreement between him and plaintiff, was entitled to use the suit properties in a way he liked and the plaintiff could not have challenged the alienations during vasudeo's lifetime. the suit, as framed, was therefore not bad for multifariousness and was maintainable in cuttack court under section 17 read with o......of the plaintiff. in pursuance of an agreement between the plaintiff and his uncle vasudeo, the suit properties were given to vasudeo's possession for his maintenance and enjoyment during his lifetime only. he had no right to make any disposition of the property beyond his lifetime. vasudeo died in the year 1962. before his death, he mortgaged two lands, revision survey nos. 421 and 457 in favour of the first defendant. these two lands are situate in a place called kowad, which now forms part of the state of maharashtra. another piece of land bearing revision survey no. 335 situate in desur village in belgaum taluka was alienated by him in favour of the father of defendants 3 to 5. these three lands are the subject-matter of the suit. for the sake of brevity, the lands transferred in.....
Judgment:
ORDER

(1) This petition under Section 115 of the Code of Civil Procedure is directed against the order made by the First Additional Munsif, Belgaum, in Regular C. S. No. 168 of 1963 wherein he recorded findings on first two issues relating to the jurisdiction of the Court to entertain the suit. He held that the Court had the necessary competence and jurisdiction to entertain the suit and it is the correctness of this finding that is being challenged in this petition by the first defendant.

(2) The facts which are necessary for the purpose of this case may shortly be stated as follows: One Vasudeo was the paternal uncle of the plaintiff. In pursuance of an agreement between the plaintiff and his uncle Vasudeo, the suit properties were given to Vasudeo's possession for his maintenance and enjoyment during his lifetime only. He had no right to make any disposition of the property beyond his lifetime. Vasudeo died in the year 1962. Before his death, he mortgaged two lands, revision survey Nos. 421 and 457 in favour of the first defendant. These two lands are situate in a place called Kowad, which now forms part of the State of Maharashtra. Another piece of land bearing revision survey No. 335 situate in Desur village in Belgaum Taluka was alienated by him in favour of the father of defendants 3 to 5. These three lands are the subject-matter of the suit. For the sake of brevity, the lands transferred in favour of defendant 1 shall be referred to as Kowad lands whereas the land sold to the father of defendants 3 to 5 shall be referred to as Desur land.

(3) After the death of Vasudeo, plaintiff filed the present suit in the year 1963 challenging the transfers of the suit in the year 1963 challenging the transfers of the suit lands made in favour of the defendants as illegal. He, therefore, claimed possession of them after the death of Vasudeo.

(4) The defendants filed their written statement contesting the claim of the plaintiff. They inter alia contended that the Court had no jurisdiction to entertain the suit in respect of Kowad lands. It was also contended that the suit is bad for misjoinder of parties and cause of action.

(5) Issues Nos. 1 and 2 relate to these contentions. They are as follows:--

'(1) Has this Court territorial jurisdiction to try the present suit in respect of the suit lands in plaint para 1B and defendants 1 and 2?

(2) Is the suit bad for misjoinder of parties and causes of action?'

(6) As I stated earlier, the learned Munsiff has recorded a finding in favour of the plaintiff on both these issues, and it is the correctness of this finding that is being challenged in this petition by Mr. Joshi for the petitioner.

(7) It is contended by Mr. Joshi that the Court has no territorial jurisdiction to entertain the suit in respect of Kowad lands. His contention has been that the Kowad lands are situate in the State of Maharashtra and the suit is filed in one of the Courts in the State of Mysore. Therefore, the Court in the State of Mysore has no jurisdiction to entertain the suit in respect of properties situate in the State of Maharashtra so as to make the decision binding on the subject of the State of Maharashtra, he also contended that the suit is bad for multifariousness in that different causes of action have been combined together to claim relief against various defendants and therefore the learned munsiff was in error in holding that he had the jurisdiction to entertain the suit and the same is not bad for multifariousness.

(8) On the other hand, Mr. Mandgi appearing for the first respondent-plaintiff contends that the Court had the jurisdiction to entertain the suit, thus supporting the findings of the Court below.

(9) The question, therefore, that arises for determination is whether the findings of the trial Court in relation to these two issues are correct.

(10) The relevant provisions relating to the place of suing are contained in the Code of Civil

Procedure and for our purpose, Sections 16 and 17 are relevant. Section 16 provides:

'Subject to the pecuniary or other limitations prescribed by any law, suits..........

(a) for the recovery of immoveable property with or without rent or profits,

............................................................... shall be instituted in the Court within the local limits of whose jurisdiction the property is situate.'

(11) The word 'property' has been explained to mean property situate in India. This section provides for the institution of a suit in the Court in respect of property situate within the local limits of its jurisdiction, whereas Section 17, deals with the institution of suits relating to immovable property situate within the jurisdiction of different Courts. It reads as follows:--

'Where a suit is to obtain relief respecting, or compensation for wrong to, immovable property situate within the jurisdiction of different Courts, the suit may be instituted in any Court within the local limits of whose jurisdiction any portion of the property is situate.''

(12) The proviso to this section is not relevant for our purpose. The word 'Courts' occurring in this section means Courts to which the Civil Procedure Code applies , Nrisingha Charan Nandy v. Ranjit Prasad Singh).

(13) Thus, from a reading of the section, it would be clear that the Courts in India would be competent to entertain the suit in respect of immoveable property situate within the jurisdiction of different courts. The purpose of this section is obviously to avoid the multiplicity of proceedings.

(14) Mr. Joshi, however, in support of his contention that such a suit cannot be entertained, has relied upon a decision in AIR 1942 All 387, Karam Singh v. Kunwar Sen. In that case it is pointed out that there is no apparent connection between the transfer of the Amritsar property to Amarnath under the will executed by Jwaladevi and the subsequent transfer made by him and his successor-in-interest on the one hand and the transfer made by Premadevi of the Hardwar property on the other hand. it must be admitted also their Lordships state that the plaintiffs were not claiming the estate of Badiridas as a whole against the rival claimants to the estate. The Lordships, therefore, held that there was no cause of action for recovery of the properties from the various defendants. They then referred to the Privy Council case, Nisar Ali Khan v. Mohammad Ali Khan and stated that the decision supported their conclusions. But this decision can have no application to a case where there is a single cause of action for the institution of the suit challenging the various alienations. They Privy Council in , took the view that Section 17 empowers the Court to entertain a suit in respect of immoveable property situate within the jurisdiction of different Courts and the word 'Courts' as I stated earlier, means the Courts to which the Code of Civil Procedure applies. In that case the properties involved were four: three properties were situated in Punjab and one property was situate in Oudh and the contention was that the suit was bad. Their Lordships stated that in respect of one property the cause of action was different but the cause of action for the rest of the properties was the same though situate in Punjab and Oudh and observed :

'There remains the question of the Khalikabad estate. Here the respondent cannot succeed unless he shows that under the terms of the deed creating the Wakf he is the trustee. That question depends upon the construction of the deed. It is a separate and different cause of action from those which found the proceedings in respect of the other three properties. Their Lordships are unable to find any justification for bringing the suit in respect of this property elsewhere than in the Court of the District where the property is situate. Such justification cannot in their Lordships' judgment be found in Section 17 of the Code of Civil Procedure upon which the respondent's counsel relied.'

(15) Thus, it would appear that where there is a single cause of action in respect of properties comprised in the suit situate within the jurisdiction of different Courts, a suit may be instituted in a Court within the local limits of whose jurisdiction any of the suit property is situate.

(16) It is then contended by Mr. Joshi that the suit is bad for multifariousness, i.e., for having joined different causes of action in the same suit. He contends that the cause of action in relation to Kowad property is quite different from the cause of action in respect of Desur property. But this contention in my view is not correct, because though there were two alienations, in favour of different persons, yet there is a single cause of action to recover the alienated properties, that is, the death of Vasudeo, who, by virtue of the agreement between him and plaintiff, was entitled to use the suit properties in a way he liked and the plaintiff could not have challenged the alienations during Vasudeo's lifetime. That being so, it must be held that the cause of action is really one and that is, the death of Vasudeo, which gave rise to the cause of action to the plaintiff to recover possession of the properties in possession of the various defendants. Such a suit is permissible under R. 3 of O. 1 of the Code of Civil Procedure especially when the evidence to establish the claim in respect of two properties would be the same, namely, the agreement between Vasudeo and Vinayak and to prove that Vasudeo had only a limited right and that he had no power to alienate the properties beyond his lifetime. Thus, the same evidence has to be led to sustain the plaintiff's claim in challenging the alienations made in favour of both sets of defendants. In somewhat similar circumstances if was held in Basant Priyadei v. Ramkrishna Das. : AIR1960Ori159 that--

'In the suit, as framed, there would arise a common question of law and fact, and would incidentally affect the properties which happen to be situated both within Cuttack and Kendrapare jurisdictions. The suit, as framed, was therefore not bad for multifariousness and was maintainable in Cuttack Court under Section 17 read with O.1 R.3.'

(17) To the same effect is the Full Bench decision of the Nagpur high Court AIR 1952 Nag 303, Ramdhin v. Thankuran Dulaiya. This decision of the Bagpur high Court was followed by the High Court of Orissa and the decision of Allahabad High Court in AIR 1942 All 387 was dissented from.

(18) Mr. Joshi has also brought to my notice a decision reported in : AIR1964Pat79 , where their Lordships had to consider the provision of Section 17 of the Code of Civil Procedure. Their Lordships referred to the Privy Council case and other decisions including that of AIR 1942 All 387. Their Lordships did not approve the ratio decided of the Nagpur case, i.e, AIR 1952 Nag 303 (FB). Thus, it is stated by Mr. Joshi that indirectly they did approve the decision of the Allahabad High Court. But, with great respect, the correct rule of law in my view is that where there is a single cause of action to recover properties situate within the jurisdiction of different Courts, a suit can be filed in any one of the Courts within the jurisdiction of which any one of the suit property is situate. That being so, the view taken by the trial Court is correct and the same must be affirmed.

(19) In the result, I confirm the findings of the trial Court and dismiss this petition with costs.

(20) BNP/D.V.C.

(21) Petition dismissed


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