Karnataka High Court
Ramegowda Alias Chikkaramegowda vs Mallegowda Alias Krishnappa on 30 August, 2023
Author: S.G.Pandit
Bench: S.G.Pandit
-1-
NC: 2023:KHC:31111
WP No. 11451 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE S.G.PANDIT
WRIT PETITION NO. 11451 OF 2020 (GM-CPC)
BETWEEN:
RAMEGOWDA ALIAS
CHIKKARAMEGOWDA
SINCE DECEASED BY LRS.
1. SMT. DEVAMMA
W/O LATE SRI RAMEGOWDA ALIAS
CHIKKARAMEGOWDA
AGED ABOUT 79 YEARS
R/AT HUYILALU
YELAWALA HOBLI
MYSORE-570001.
2. SRI H R MALLAIAH
S/O LATE SRI RAMEGOWDA ALIAS
CHIKKARAMEGOWDA
AGED ABOUT 79 YEARS
R/AT HUYILALU
Digitally signed by YELAWALA HOBLI
GURURAJ D
MYSORE-570001.
Location: High
Court of Karnataka
SRI H.R. SHIVARAM
SINCE DECEASED BY LRS
3. SMT. ANUSUYA
W/O LATE SRI SHIVARAMU
AGED 42 YEARS
4. KUM. DIVYA H S
D/O LATE SRI SHIVARAMU
AGED 21 YEARS
5. SRI RAGHAVENDRA H S
-2-
NC: 2023:KHC:31111
WP No. 11451 of 2020
S/O LATE SHIVARAM
AGED 19 YEARS
PETITIONERS NO.3 TO 5 ARE
R/AT NO.48, HUYILALU VILLAGE
NAGAVALA POST
YELAWALA HOBLI
MYSORE TALUK-570001.
6. SMT. PUTTARAMAMMA
D/O LATE SRI RAMEGOWDA ALIAS
CHIKKARAMEGOWDA
AGED 46 YEARS
R/AT HUYILALU VILLAGE
YELAWALA HOBLI
MYSORE -570001.
7. SMT. KARIYAMMA
D/O LATE SRI RAMEGOWDA
ALIAS CHIKKARAMEGOWDA
AGED 48 YEARS
R/AT HUYILALU, YELAWALA HOBLI
MYSORE -570001.
8. SMT. RENUKA
D/O LATE SRI RAMEGOWDA
ALIAS CHIKKARAMEGOWDA
AGED 45 YEARS
R/AT HUYILALU VILLAGE
YELAWALA HOBLI
MYSORE -570001.
PETITIONERS ARE REPRESENTED BY
GPA HOLDER/PETITIONER NO.2
SRI H R MALLAIAH.
...PETITIONERS
(BY MS. GANGA GANAPATHY, ADV. FOR
SRI. MANMOHAN P N, ADV.)
AND:
SRI MALLEGOWDA ALIAS KRISHNAPPA
S/O LATE RAMEGOWDA
AGED ABOUT 79 YEARS
-3-
NC: 2023:KHC:31111
WP No. 11451 of 2020
R/A HUYILALU VILLAGE
YELAWALA HOBLI
MYSORE-570001.
...RESPONDENT
(BY SRI M VINAYA KEERTHY, ADV.)
THIS PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER
DATED 29.07.2019 PASSED IN O.S.NO.769/2007 PASSED BY THE
COURT OF II ADDL. CIVIL JUDGE AND SESSIONS JUDGE AT
MYSURU (PRODUCED AS ANNEXURE-D) AND CONSEQUENTLY
PERMIT THE PETITIONERS TO MARKED AGREEMENT OF SALE
DATED 16.04.2003 IN EVIDENCE PRODUCED AS ANNEXURE-C.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners/plaintiffs in O.S.No.769/2007 on the file of the II Additional Civil Judge and JMFC, Mysore are before this Court against the order dated 29.07.2019 impounding the agreement to sell dated 16.04.2003 and seeking permission to mark the said agreement dated 16.04.2003.
2. Heard learned counsel Ms.Ganga Ganapathy for Sri.P.N.Manmohan learned counsel for petitioners/plaintiffs and learned counsel Sri.M.Vinaya Keerthi for respondent/defendant. Perused the writ petition papers. -4-
NC: 2023:KHC:31111 WP No. 11451 of 2020
3. The petitioners/plaintiffs filed O.S.No.769/2007 for the relief of specific performance of the agreement to sell dated 16.04.2003 and for perpetual injunction against the respondent/defendant. During the course of plaintiffs' evidence, the plaintiffs produced agreement to sell dated 16.04.2003 to mark as an exhibit. But the trial Court on going through the document, impounded the same in terms of the provisions of Karnataka Stamp Act, 1957, since, the agreement to sell not sufficiently stamped and registered. The trial Court was of the view that since the possession of the suit schedule property is handed over in pursuance of agreement to sell dated 16.04.2003, the document required payment of stamp duty and registration.
4. Learned counsel for the petitioners/plaintiffs, assailing the order would submit that the possession of the suit schedule property is not handed over nor the petitioners/plaintiffs have taken possession of the suit schedule property in pursuance of agreement to sell dated -5- NC: 2023:KHC:31111 WP No. 11451 of 2020 16.04.2003. Learned counsel inviting attention of this Court to Annexure-C agreement to sell would submit that first portion of the agreement would say that the vendor has agreed to handover the possession of the suit schedule property on the date of entering into agreement to sell. But in the second portion of the agreement would indicate that the first party has handed over the possession of the suit schedule property to the second party.
5. Learned counsel would submit that the first clause of the agreement would prevail over the later clause, if there is inconsistency between two clauses. Thus, it is submitted that the possession of the suit schedule property was not handed over in pursuance of the agreement to sell. It is submitted that since the possession is not handed over in pursuance of the sale agreement, the trial Court committed an error in impounding the agreement. To buttress her argument, the learned counsel for the petitioner places reliance on -6- NC: 2023:KHC:31111 WP No. 11451 of 2020 the judgment of the Hon'ble Apex Court reported in (1995)5 SCC 444 in the case of KAIVELIKKAL AMBUNHI (DEAD) BY LRs AND OTHERS v/s H.GANESH BHANDARY AND OTHERS. Thus, she prays for allowing the writ petition and to set aside order impounding the sale agreement dated 16.04.2003.
6. Per contra, learned counsel Sri.Vinaya Keerthi for respondent would submit that the agreement is very clear with regard to handing over the possession of the suit schedule property on the date of entering into agreement. Further learned counsel would invite attention of this Court to paragraph 3(e) of the plaint as well as paragraph 12, wherein the plaintiff has stated that the defendant has handed over the physical possession of the property to the plaintiff on 16.04.2003 and the plaintiff took possession of the property. He submits that when the plaintiff himself has admitted taking possession in pursuance of the agreement to sell dated 16.04.2003, the argument of the petitioners that possession is not taken in pursuance of the -7- NC: 2023:KHC:31111 WP No. 11451 of 2020 agreement in question cannot be accepted and submits that the writ petition is liable to be dismissed.
7. Having heard the learned counsel for the parties and on perusal of the writ petition papers, the only point which falls for consideration is as to whether impugned order require interference?
8. Answer to the above point would be in the negative for the following reasons:
The suit is one for specific performance based on the agreement to sell dated 16.04.2003 between the plaintiffs and respondent/defendant. The agreement to sell dated 16.04.2003 is placed on record as Annexure-C. The portion of agreement reads as follows:
"PÀæAiÀÄzÀ PÀgÁgÀÄ §gÉzÀÄPÉÆlÖ ¢£À ¸ÀªÀð ªÀiÁ°ÃPÀvÀézÉÆqÀ£É ¸ÀéwÛ£À ¸Áé¢üãÀªÀ£ÀÄß JgÀqÀ£Éà ¥ÁnðAiÀÄ ªÀ±ÀPÉÌ ©lÄÖPÉÆqÀ®Ä MAzÀ£Éà ¥Ánð M¦àgÀÄvÁÛgÉ. F ¢ªÀ¸À MAzÀ£Éà ¥Ánð JgÀqÀ£Éà ¥ÁnðUÉ PÀæAiÀÄPÉÌ PÉÆqÀ®Ä M¦à PÀæAiÀÄzÀ PÀgÁgÀÄ §gÉzÀÄPÉÆnÖgÀĪÀÅzÉà «£ÀºÀ ¨ÉÃgÉ AiÀiÁjUÀÆ ¥ÀgÁ¢üãÀ ªÀUÉÊgÉ ªÀiÁrgÀĪÀÅ¢®è.-8-
NC: 2023:KHC:31111 WP No. 11451 of 2020 MAzÀ£Éà ¥Ánð ¸ÀzÀj ¸ÀévÀÄÛ ¥ÀgÀ¨sÁgÉ, fêÀ£ÁA±À, ¨sÁUÁA±À (ªÀĺÀgï) £ÁåAiÀiÁ®AiÀÄUÀ¼À d¦ÛUÀ½UÉ EvÀgÀ ºÀPÀÄÌUÀ½UÉ FqÁVgÀĪÀÅ¢®èªÉAzÀÄ ¥ÀÆtð £ÀA©PÉ ªÀÄvÀÄÛ ¨sÀgÀªÀ¸ÉAiÀÄ£ÀÄß PÉÆnÖgÀÄvÁÛgÉ. F PÀgÁj£À µÀgÀwÛUÉ MAzÀ£Éà ¥Ánð vÀ¦àzÀ°è F PÀgÁgÀÄ eÁjUÉ vÀgÀ®Ä £ÁåAiÀiÁ®AiÀÄzÀ°è ¸ÀÆPÀÛ PÀæªÀÄ dgÀÄV¸À®Ä PÀæAiÀÄ¥ÀvÀæ §gɹPÉƼÀî®Ä ªÀÄvÀÄÛ GAmÁUÀvÀPÀÌ RZÀÄð ªÉZÀÑ £ÀµÀÖPÁÌV ªÀÄÄAUÀqÀ ºÀt 80,000-00 gÀÆ¥Á¬ÄUÀ¼À eÉÆvÉAiÀÄ°è gÀÆ. 50,000-00 (LªÀvÀÄÛ ¸Á«gÀ gÀÆ¥Á¬ÄUÀ¼ÀÄ ªÀiÁvÀæ) gÀÆ¥Á¬ÄUÀ¼ÀÄ ¸ÀºÁ MAzÀ£Éà ¥ÁnðAiÀÄ ZÀgÀ¹ÜgÀ D¹ÛUÀ½AzÀ ªÀ¸ÀÆ®Ä ªÀiÁrPÉƼÀî®Ä JgÀqÀ£Éà ¥Ánð ºÀPÀÄ̼ÀîªÀgÁVgÀÄvÁÛgÉ.
F PÀgÁj£À µÀgÀwÛUÉ MAzÀ£Éà ¥Ánð ¹zÀÝgÁzÀ ªÉÃ¼É ªÁ¬ÄzÉ M¼ÀUÁV JgÀqÀ£Éà ¥Ánð PÀæAiÀÄ¥ÀvÀæ §gɹPÉƼÀîzÉ PÁ®ºÀgÀt ªÀiÁrzÀ°è F PÀgÁgÀÄ gÀzÀÄÝ¥Àr¸À®Ä ºÁUÀÆ GAmÁUÀvÀPÀÌ RZÀÄð- ªÉZÀÑ £ÀµÀÖPÁÌV ªÀÄÄAUÀqÀ ºÀt gÀÆ. 80,000-00 gÀÆ¥Á¬ÄUÀ¼À ¥ÉÊQ 50,000-00 (LªÀvÀÄÛ ¸Á«gÀ) gÀÆ¥Á¬ÄUÀ¼ÀÄ ªÀÄÄlÄÖUÉÆÃ®Ä ºÁQPÉƼÀî®Ä ¸ÀºÁ MAzÀ£Éà ¥Ánð ºÀPÀÄ̼ÀîªÀgÁVgÀÄvÁÛgÉ. µÉqÀÆå¯ï ¸ÀéwÛ£À ¸Áé¢üãÀªÀ£ÀÄß 1£Éà ¥ÁnðAiÀÄÄ 2£Éà ¥ÁnðUÉ F ¢ªÀ¸À ©lÄÖPÉÆnÖgÀÄvÁÛgÉ."
(emphasis supplied) A reading of the above portion makes it abundantly clear that the first party had agreed to handover possession of the suit schedule property on the date of entering into -9- NC: 2023:KHC:31111 WP No. 11451 of 2020 agreement and later clause would indicate that the first party handed over possession of the suit schedule property to the second party. The plaint averment at paragraph 3(e) and paragraph 12 reads as follows:
"(e) The Defendant handed over the physical possession of the property to the Plaintiff on 16.04.2003. The defendant agreed to hand over vacant possession of the property in question at the time of execution of the Deed of Sale. However, subsequent to the execution of the Agreement, the Defendant met the Plaintiff and pleaded that the Plaintiff could take possession of the property as he was unable to cultivate the same. The Plaintiff agreed and accordingly took possession of the property."
12. It is submitted that the Plaintiff since 16.04.2003, has been cultivating the plaint schedule property. It is relevant to note that the Plaintiff has been carrying on agricultural operations in and upon the plaint schedule property. It is significant to note that five mango trees have been planted in and upon the plaint schedule property. As part and parcel of the enjoyment of the schedule property in furtherance of the Agreement to Sell, the Plaintiff has been plucking fruits."
- 10 -
NC: 2023:KHC:31111 WP No. 11451 of 2020 The above extracted plaint averment would make it further clear that the plaintiff himself has stated that he has taken possession of the suit schedule property on 16.04.2003 in pursuance of the agreement to sell dated 16.04.2003. Learned counsel for the petitioners/plaintiffs submitted that while interpreting a document, if there is inconsistency between 2 clauses, earlier clause would prevail over the later clause. In the present document i.e. agreement to sell dated 16.04.2003, there is no inconsistency between the earlier clause and subsequent clause. Earlier clause would state that the first party agrees to hand over the possession of the suit schedule property to the second party on the date of execution of agreement and later clause would clearly indicate that possession of the suit schedule property is handed over by the first party to the second party. Therefore, the reliance placed on the decision in KAIVELIKKAL AMBUNHI would not assist the petitioners/plaintiffs in any way.
- 11 -
NC: 2023:KHC:31111 WP No. 11451 of 2020
9. In terms of Article 5(e) of Karnataka Stamp Act, 1957 (for short "1957 Act"), possession of property is delivered or is agreed to be delivered before executing conveyance, the same duty as payable on conveyance is to be paid on the market value of the property. Admittedly, the petitioners/ plaintiffs have not paid stamp duty as required under Article 5(e) of the 1957 Act and the agreement is not registered. The trial Court is justified in impounding the document.
10. No ground is made out to interfere with the impugned order. Accordingly, the writ petition stands rejected.
Sd/-
JUDGE MPK CT:bms List No.: 1 Sl No.: 57