Karnataka High Court
Sri M G Surendragupta vs Sri K M Mallaiah on 12 January, 2024
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2024:KHC:1846
RFA No. 427 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
REGULAR FIRST APPEAL NO.427 OF 2021 (RES)
BETWEEN:
SRI M G SURENDRAGUPTA
S/O. GOVINDAIAH SHETTY,
NO. 9, 1ST 'C' MAIN ROAD,
GELEYARA BALAGA LAYOUT,
MAHALAKSHMIPURAM,
BENGALURU-560 089.
...APPELLANT
(BY SRI. KRISHNAMURTHY M R., ADVOCATE)
AND:
1. SRI K M MALLAIAH
S/O. LATE NARASIMHAIAH,
NO.43, BLOCK NO.116,
JB KAVAL, YALAHANKA HOBLI,
BENGALURU NORTH TALUK,
BENGALURU 560 089.
Digitally signed by 2. SMT. LAKSHMAMMA
VANDANA S W/O. G K RAMAIAH,
Location: HIGH NO.465, 15TH 'C' CROSS,
COURT OF
KARNATAKA 2ND PHASE, 1ST STAGE,
MAHALAKSHMIPURAM,
BENGALURU-560 086.
...RESPONDENTS
(BY SRI. SHRIDHARA K., ADVOCATE FOR R1;
VIDE ORDER DATED 07.07.2021 NOTICE TO R2 IS D/W)
THIS RFA IS FILED U/S 96 R/W ORDER 41 RULE 1 OF CPC,
AGAINST THE ORDER DATED 02.06.2021 PASSED ON I.A.NO.3 IN
EX.P.3386/2013 ON THE FILE OF THE I ADDITIONAL CITY CIVIL AND
SESSIONS JDUGE, BENGALURU, DISMISSING I.A.NO.3 FILED
UNDER ORDER XXI RULES 97 TO 103 R/W SECTION 151 OF CPC.
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NC: 2024:KHC:1846
RFA No. 427 of 2021
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal by the appellant - obstructor in Ex.Case No.3386/2013 on the file of the I Addl. City Civil and Sessions Judge, Bengaluru is directed against the impugned order dated 02.06.2021, whereby the application I.A.No.3 filed by the appellant
- obstructor under Order 21 Rule 97 to 103 r/w Section 151 CPC was dismissed by the Executing Court.
2. Heard learned counsel for the appellant and learned counsel for the respondent and perused the material on record.
3. The material on record discloses that the 1st respondent
- decree holder instituted a suit in O.S.No.4652/1990 against the 2nd respondent - judgment debtor for declaration of title, recovery of possession and other reliefs in relation to the suit schedule immovable property. The said suit having been contested by the 2nd respondent came to be dismissed by the Trial Court vide Judgment and decree dated 06.01.2010. Aggrieved by the same, the 1st respondent preferred an appeal in RFA No.618/2010 which was allowed by this Court vide Judgment and decree dated -3- NC: 2024:KHC:1846 RFA No. 427 of 2021 06.08.2013, whereby the judgment and decree of the Trial Court was set aside and the suit of the 1st respondent - plaintiff was decreed in his favour against 2nd respondent - defendant who was directed to vacate and hand over vacant possession of the suit schedule property to the 1st respondent. The said judgment and decree passed by this Court in RFA No.618/2010 attained finality and became conclusive and binding upon the 2 nd respondent. However, since she did not vacate and hand over vacant possession of the suit schedule property to the 1st respondent, he instituted the instant execution proceedings to implement and enforce the said judgment and decree in respect of the suit schedule property which was described as under:
"Site measuring 30 x 40 (Thirty feet x Forty feet) formed in Jarakabandekaval Village layout, Yelahanka Hobli, Bangalore North Taluk, bearing Site No.43, Khata No.180, situated in Block No.116, with one square as sheet roof house on it bounded on the:
East by : Anantha's property area West by : K.N.Radha's property North by : Contractor Perumal's property South by : Road"-4-
NC: 2024:KHC:1846 RFA No. 427 of 2021
4. In the instant execution proceedings, the 2 nd respondent
- judgment debtor remained absent in the first instance despite service of notice and the executing Court directed issuance of delivery warrant vide Order dated 13.02.2015. At that stage, the appellant herein filed the instant application under Order 21 Rules 97 to 103 CPC claiming to be an obstructor in possession of the suit schedule property. In the affidavit in support of the application, the appellant contended that he was the owner in possession and enjoyment of the property acquired by him vide registered sale deed dated 24.09.2007 and that the khata had been registered in his name and was paying taxes. The property claimed by the appellant was described as here under:
"Property bearing Site No.5, Old No.442, New No.9, Khata No.312 situated at Jarakabandekaval, Geleyarabalaga, I "C"
main road, Bengaluru Mahanagara Palike Ward No.13, Bengaluru - 86 measuring East to West 30 feet and North to South 40 feet consisting of 4 Squares ACC sheet roofing and bounded on:
East by : Site No.4 West by : Site No.6 North by : Site No.10 South by : Road -5- NC: 2024:KHC:1846 RFA No. 427 of 2021
5. The appellant traced his title and possession to the property to earlier registered documents and contended that he was not aware about the suit in O.S.No.4652/1990 or RFA No.618/2010 filed by the 1st respondent against the 2nd respondent nor the judgment and decree passed by this Court which was sought to be executed by the 1 st respondent - decree holder. It was contended that the property owned and possessed by the appellant was different from the suit schedule property, in respect of which the 1st respondent had fraudulently obtained a collusive decree and was trying to enforce the same against the appellant who had accordingly filed the instant application I.A.No.3 before the Executing Court.
6. The said application was opposed by the 1st respondent -
decree holder who disputed and denied the various allegations and claim made by the appellant. It was contended by him that the instant application I.A.No.3 was a result of fraud and collusion between the appellant and 2 nd respondent - judgment debtor and that the same was devoid of merit and liable to be dismissed.
7. During the course of enquiry on I.A.No.3, the appellant examined himself as PW-1 and documentary evidence at Exs.P1 to -6- NC: 2024:KHC:1846 RFA No. 427 of 2021 P26 were marked on his behalf. The 1 st respondent - decree holder did not adduce any oral evidence but got marked Ex.D1 on his behalf.
8. After hearing the parties, the Executing Court proceeded to dismiss I.A.No.3 filed by the appellant by passing the impugned order, which is assailed in the present appeal.
9. The following points arise for consideration in the present appeal:
(i) Whether the Trial Court was justified in dismissing the application I.A.No.3 filed by the appellant - obstructor under Order 21 Rules 97 to 103 CPC?
(ii) Whether the impugned order passed by the Trial Court warrants interference by this Court in the present appeal? Re: Point Nos. 1 and 2:-
10. A perusal of the material on record, in particular, the suit schedule property which was put into execution by the 1st respondent - decree holder and the property claimed by the appellant will indicate that both the properties are different from one another; in this context, it is relevant to state that the description of -7- NC: 2024:KHC:1846 RFA No. 427 of 2021 the suit schedule property contained in the decree passed by this Court as extracted above and the description of the property claimed by the appellant will clearly indicate that they are altogether different properties with different site numbers, khata numbers, boundaries, structures etc.; it is under these circumstances that the Executing Court came to the conclusion that the appellant had failed to establish the similarity in the identity of the property claimed by him and the suit schedule property and accordingly, dismissed I.A.No.3 by holding that the appellant - obstructor failed to show his title or possession over the suit schedule property which was in no way connected to the property claimed by the appellant. While arriving at the said conclusion, the Executing Court has taken into account the respective pleadings and evidence including the various admissions, inconsistencies, contradictions and discrepancies in the pleadings and evidence of the appellant (PW-1) as well as the rival contentions and has rejected the claim of the appellant by holding as under:
"10. Point No.1 : The decree holder by name K.M. Mallaiah has filed the suit O.S.No.4652/1990 on the file of this court for declaration of his title and for recovery of possession of the suit schedule property bearing site No.43, Block No.16, Jarakabande Kaval, Yalahanka Hobli, Bengaluru North Taluk -8- NC: 2024:KHC:1846 RFA No. 427 of 2021 measuring 30X40 feet within the boundaries to the East by Anantha's property, West by K.N.Radha's Property, North by Contractor Perumal's Property and South by Road. The said suit was came to be dismissed by this court by virtue of judgment and decree dated 06.01.2010. Aggrieved by the same, the plaintiff K.M. Mallaiah has preferred appeal against the present JDR by name Smt. Lakshmamma in RFA No.618/2010. The said RFA was allowed and the Hon'ble High Court of Karnataka by setting aside the dismissal of the suit by judgment and decree dated 06.01.2010 of this court, decreed the suit of the plaintiff as prayed for. Based on the said decree passed in RFA No.618/2010 by the Hon'ble High Court of Karnataka, the decree holder/ K.M. Mallaiah has filed the present execution petition to execute the decree to get the possession of the suit schedule property from the judgment debtor by name Smt.Lakshmamma. The delivery warrant was issued by my predecessor in office. The same was returned un executed for the reason mentioned by the Bailiff as "at the time of his visit to the spot there was a building instead of a house property as described in the schedule. The JDR is remained absent. The DHR filed I.A.No.2 for extending police help to execute the decree and accordingly my Predecessor in office has passed an order to that effect. In the meanwhile, the execution of the decree was obstructed and the present obstructer by name M.G. Surendar Gupta has filed the present application under Order 21 Rules 97 to 103 R/w Section 151 of CPC under I.A.No.3 with some documents claiming that, he is the owner in actual possession and enjoyment of the property which is to be executed under the present decree. The said -9- NC: 2024:KHC:1846 RFA No. 427 of 2021 application is seriously resisted by the Decree Holder and accordingly enquiry has been conducted.
11. During the enquiry of the present obstruction application/I.A.No.3, the obstructer M.G. Surendar Gupta alone examined as O.w.1. He filed his examination in chief by way of affidavit as required under law. In the said affidavit, he has repeated the same set of facts as averred in his affidavit filed in support of the said obstruction application. The facts of the same are already narrated in the above paragraphs.
12. In support of the his chief examination, the obstructer has produced certain documents. I have carefully perused the same. The Ex.O1 is an endorsement issued by Sub Registrar, Rajajinagar, Bengaluru. The Ex.O2 is the certified copy of sale deed dated 27.10.1980 in between R. Subramani S/o Late. V. Rathnagoundar and K. Munivenkatappa S/o Pongupalli Krishnappa and D. Shanmugam in respect of land bearing Sy.No.1 to the extent of 2 acres, 2 gunta located in 11th and 15th block within specified boundaries. The Ex.O.3 is a certified copy of the registered sale deed dated 10.08.2005 executed by GPA/Smt. Savithri of R. Subramani in favour of S.C. Vishwanath Kumar S/o Chikkanna for the sale of a site No.5 old No. 442 under Katha No.312 measuring East West 30 feet and North South 40 feet consisting of 4 square ACC roofing within the boundaries to the East site No.4, to the West site No.6, to the North site No.10 and to the South Road located at Jarakabande Kaval, Geleyara Balaga Layout, 1st "C" Main Road, BBMP ward No.13, Bengaluru.
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NC: 2024:KHC:1846 RFA No. 427 of 2021 The Ex.O.4 is said to be the title deed of the present Obstructer M.G.Surendar Gupta, who purchased the property mentioned under Ex.O.3 from S.C. Vishwanath Kumar under a registered sale deed dated 24.09.2007. Prima facie looking to the description of the property under this Ex.O.4 is completely differ from the property sought to be executed by the decree holder as per the decree obtained by him in RFA.No.618/2010. The Ex.O.5 to Ex.O.9 are the BBMP khata extracts in respect of property ID.No.13129 in pursuance of the sale deed as per Ex.O.4. The Ex.O.10 to Ex.O.18 are the tax paid receipts in respect of the said property of the obstructer. The Ex.O.19 is the blue print of the property of obstructer. The Ex.O.20 is said to be a registered confirmation deed dated 01.10.2018 in favour of the obstructer by the grand sons of late Mestri Venkata Bovi and Late Smt. Venkatamma in respect of the same property, which is claim to be owner by the obstructer. The Ex.O.21 to Ex.O.26 are the Encumbrance certificates discloses the transaction in respect of the property belonging to the obstructer. On perusal of all these documents relied upon by the obstructer, it clearly goes to show that the property which is claim to be owner in possession by the obstructer and the property under the present execution petition are differ from each other. In addition to my opinion the very obstructer himself clearly and unequivocally admitted the same during the course of his cross examination.
13. O.w.1/M.G.Surendar Gupta S/o Govindaiah Shetty during the course of his cross examination, deposed that he was not aware as to be with respect to which property in
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NC: 2024:KHC:1846 RFA No. 427 of 2021 O.S.No.4652/1990 was filed against Smt. Lakshmamma W/o B.K. Ramaiah. Subsequently, he clearly admitted that, "the property sought to be executed under the present execution petition is in respect of site No.43 in Block No.116 of Jarakabande Kaval, Yalahanka Hobli, Bengaluru North Taluk". It is deposed that, he has no right over the said site No.43 and it is not connected to him. He himself voluntarily stated his site number is different. He clearly admitted that, the boundaries of the site No.43 and the boundaries of his site No.5 are different. Though, in the petition the obstructer mentioned the boundaries identified with site numbers, but now he clearly deposed that his property site No.5 bounded by East site No.4 belongs to Subramani, towards West site No.6 belongs to Krishnappa, North site No.10 belongs to one Meera and towards South Road. He also identified the boundaries of site No.43 as described in the schedule of the present execution petition and clearly deposed that, he has no right over the same.
14. Further, during the course of his cross examination, the obstructer clearly and unequivocally admitted the contentions raised by the decree holder in his objections to the obstruction petition/I.A.No.3 and the same is need to extract here under :
"I know the contents of the objection filed by the Decree holder. The original owners of sites purchased by me are Munivenkatappa and Shanmukhappa. They had purchased 3 acres in Sy.No.1 block No.1115. It is true that, they have purchased the said property from Venkatamma. It is true that, the Government had granted the said property to
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NC: 2024:KHC:1846 RFA No. 427 of 2021 Venkatamma for upset price on 16.02.1967. I do not know Venkatamma had challenged the sale deed executed in favour of Munivenkatappa in LND/KSC/ST 23/8081 before the Assistant Commissioner, Bengaluru. By order dated 30.09.1982, the Assistant Commissioner restored the property in favour of Venkatamma. I do not know that, Munivenkatappa had challenged the same before the Deputy Commissioner in LND/SCST/Appeal No.22/8485. I do not know that, the Special Deputy Commissioner dismissed the said appeal on 20.07.1995...."
On the next date of his cross examination i.e., on 16.03.2021, he clearly and unequivocally admitted as under :
"Now I learnt about orders of the learned Assistant Commissioner and Deputy Commissioner in LND/SCST appeals. Now Order of the learned Spl.Deputy Commissioner is shown to me and I learnt about the same. Since, the witness admitted the same on confrontation, it is marked as Ex.P.1. It is true to suggest that, P.Savithri is my wife. One Subramanya executed GPA in favour of my wife prior to I married her. It is true to suggest that, the sale deed dated 18.10.1974 was set aside under PTCL Act by the Special Deputy Commissioner and the property under said sale was restored to one Smt. K.V. Venktatamma".
15. As per the case of obstructer, he has filed O.S.No.5613/2015 against the present decree holder and his daughter for permanent injunction. However, he has not produced any record to that effect. In this context, he deposed his absence of knowledge that the said suit came to
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NC: 2024:KHC:1846 RFA No. 427 of 2021 be dismissed on 28.06.2019 for the suggestion to that effect. Thus, it goes to show that there is no other litigation in respect of the property which is sought to be executed by the decree holder under the decree passed in RFA.No.618/2010 in respect of schedule property bearing site No.43 within specified identified boundaries and in which, the obstructer has no right, title or any interest and never possible to in possession of the same as he pleaded in the petition. The oral and documentary evidence placed by the obstructer are evident that the property in possession of the obstructer is not the property of the present execution petition and it is clearly established that the obstructer not at all in possession of the same. Therefore, the point No.1 is answered in the negative.
16. Point No.2 : The learned advocate for the obstructer, in support of the obstructer application relied upon the following citations :
1. Maya Devi Vs. Latha Prasad (2015)5 SCC 588.
2. Smt. M.C. Sudhamani Vs. Madaih and another 2002 (5) Kar.L.J.85.
3. Syed Nazeer Ahmed Vs. B. Saifulla Khan and another 2004 (7) Kar.L.J.83.
4. Anwarabi Vs. Pramod D.A. Joshi and others (2000) 10 SCC 405.
5. Harivilas V/s Mahendranath and others (2011) 15 SCC 377.
Niyamat Ali Mulla V/s Sonargon Housing Cooperative
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NC: 2024:KHC:1846 RFA No. 427 of 2021 Ltd and others (2008) SC 225(1).
17. I have carefully gone through all the above citations relied upon by the obstructer. The obstructer filed the present I.A.No.3 under Order 21 Rules 97 to 103 R/w Section 151 of CPC. On an enquiry of the said application, the obstructer utterly failed to show his title or any interest or possession over the schedule property under the present execution petition. It is clearly established that the obstructer is no way connected to he said property and the property claimed by him is differ from the present suit property. In fact, on an enquiry, it appears to me that the very title of the obstructer in respect of his property bearing site No.5 old No.442, New No.9 under khata No.312 itself is defective and the same is in no way concern are connected to the property sought to be delivered from the JDR/Smt. Lakshmamma by the decree holder/Mallaiah. The boundaries of the same and the boundaries of the property of obstructer are also completely different. Under these facts and circumstances of the case on hand and on determination of all questions raised between the parties to the present application during enquiry, none of the citations relied upon by the learned counsel for the obstructer is applicable. Having regard to the entire oral testimony of O.w.1 coupled with his documentary evidence, I am unable to thrown out the arguments canvassed by the learned counsel for the decree holder that the obstructer unnecessarily obstructing the execution of the decree under the guise of the JDR without having title or any interest or possession over the property under execution. Therefore, I feel the application deserve to be dismissed with exemplary
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NC: 2024:KHC:1846 RFA No. 427 of 2021 cost under Section 35A of CPC. With these observations, my findings on the point No.2 is in the negative." 10.1 Upon re-appreciation, re-evaluation and re- consideration of the entire material on record, I am of the considered opinion that the Trial Court has correctly and properly considered and appreciated the rival contentions and was fully justified in rejecting I.A.No.3 by passing the impugned order which cannot be said to be capricious or perverse warranting interference in the present appeal. It is however necessary to state that in view of the findings recorded by the Trial Court that the property claimed by the appellant is different from the suit schedule property which is the subject matter of the judgment and decree in RFA No.618/2010 which is sought to be executed by the 1st respondent in the instant execution proceedings, liberty would have to be reserved in favour of the parties to take recourse to such other remedies as available in law.
Point Nos.1 and 2 are accordingly answered against the appellant.
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NC: 2024:KHC:1846 RFA No. 427 of 2021
11. In the result, I pass the following:
ORDER
(i) Appeal is hereby dismissed.
(ii) The impugned order dated 02.06.2021 passed on I.A.No.3 in Ex.No.3386/2013 by the I Addl. City Civil and Sessions Judge, Bengaluru, is hereby confirmed.
(iii) Liberty is however reserved in favour of both parties to take recourse to such other remedies as available in law.
Sd/-
JUDGE SV / DHA List No.: 2 Sl No.: 2