Karnataka High Court
The Gavipuram Extension vs Sri. Muniswamy @ on 6 November, 2023
Author: K. Natarajan
Bench: K. Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 06TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE K. NATARAJAN
REGULAR FIRST APPEAL NO.658 OF 2017
CONNECTED WITH
REGULAR FIRST APPEAL NO.693 OF 2017
IN REGULAR FIRST APPEAL NO.658 OF 2017
BETWEEN:
THE GAVIPURAM EXTENSION
HOUSE BUILDING CO-OPERATIVE SOCIETY LTD.,
NO.50, 3RD CROSS,
GAVIPURAM EXTN.,
BENGALURU - 560 019,
REPRESENTED BY ITS
I/C SECRETARY.
... APPELLANT
(BY SRI. S. SYED BASHA, ADVOCATE)
AND:
1 . SRI. MUNISWAMY @
MUNIVENKATAPPA
AGED ABOUT 75 YEARS,
R/AT BHOVI COLONY,
MARIYAPPANAPALYA,
JNANABHARATHI POST,
KENGERI TALUK,
BENGALURU SOUTH TALUK,
BENGALURU - 560 056.
2 . SRI. M. P. GUNDAPPA
S/O LATE. PUTTASWAMAIAH,
2
AGED ABOUT 70 YEARS,
SRINIDHI COMPLEX,
MALLATHALLI,
JNANABHARATHI POST,
KENGERI HOBLI,
BENGALURU SOUTH TALUK,
BENGALURU - 560 056.
3 . SRI. B. S. SRINIVAS
S/O LATE SHAMABHOVI
AGED ABOUT 65 YEARS,
JNANABHARATHI POST,
KENGERI HOBLI,
BENGALURU SOUTH TALUK,
BENGALURU - 560 056.
... RESPONDENTS
(BY SRI. KALYAN R., ADVOCATE FOR R1;
SRI. K.S. UDAY, ADVOCATE FOR R2;
SRI. T.A. KARUMBAIAH, ADVOCATE FOR R3)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED
07.01.2017 PASSED IN OS NO.9348/2014 ON THE FILE OF THE
V ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH
13), PARTLY DECREEING THE SUIT FOR RECOVERY OF MONEY.
IN REGULAR FIRST APPEAL NO.693 OF 2017
BETWEEN:
SRI. M. P. GUNDAPPA
S/O LATE PUTTASWAMAIAH,
AGED ABOUT 70 YEARS,
R/AT SRINIDHI COMPLEX,
MALLATHAHALLI,
JNANABHARATHI POST,
KENGERI HOBLI,
BENGALURU SOUTH TALUK,
BENGALURU - 560 056.
... APPELLANT
(BY SRI. K. S. UDAY, ADVOCATE)
3
AND:
1. SRI. MUNISWAMY @
MUNIVENKATAPPA
AGED ABOUT 75 YEARS,
S/O LATE MUNISWAMY,
R/AT BHOVI COLONY,
MARIYAPPANAPALYA,
JNANABHARATHI POST,
KENGERI HOBLI,
BENGALURU - 560 056.
2. GAVIPURA EXTENSION HOUSE,
BUILDING CO-OPERATIVE SOCIETY LTD.,
NO.50, 3RD CROSS,
GAVIPURAM EXTENSION,
BENGALURU - 560 019,
REPRESENTED BY ITS SECRETARY.
3. B. S. SRINIVAS,
S/O LATE SHAMABHOVI,
AGED ABOUT 65 YEARS,
R/AT JNANABHARATHI POST,
KENGERI HOBLI,
BENGALURU SOUTH TALUK,
BENGALURU - 560 056.
... RESPONDENTS
(BY SRI. KALYAN R., ADVOCATE FOR R1;
R2 AND R3 SERVED)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED
07.01.2017 PASSED IN OS NO.9348/2014 ON THE FILE OF THE
V ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY
(CCH 13), PARTLY DECREEING THE SUIT FOR RECOVERY OF
MONEY.
THESE REGULAR FIRST APPEALS HAVING BEEN HEARD
AND RESERVED FOR JUDGMENT ON 24.8.2023 THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
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JUDGMENT
RFA No.658/2017 is filed by the defendant No.2 and RFA No.693/2017 filed by defendant No.1, under Section 96 of CPC for setting aside the judgment and decree passed by the City Civil and Sessions Judge in O.S.No.9348/2014 dated 07.01.2017.
2. Heard the argument of learned counsel for appellants and respondents.
3. The appellants are defendant Nos.2 and 1 and the respondent No.1 was plaintiff in both the appeals before the Trial Court. The rank of the parties before the Trial Court are retained for the sake of convenience.
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4. The case of the plaintiff before the Trial Court is that the plaintiff filed suit for recovery of money contending that the land bearing Sy.No.118 measuring 2 acres 33 guntas situated at Nagadevanahalli Village, Kengeri Hobli has been granted in favour of the plaintiff on 31.10.1961. The Saguvali chit was also issued in his favour on 21.03.1970. There was non alienation clause, for selling the property. The plaintiff has alienated the land in favour of the defendant No.3, through registered sale deed on 7.8.1980 and in turn, defendant No.3 sold this property to defendant No.1 under the sale deed dated 15.11.1985. The alienation was affected by violation of provisions of Karnataka Scheduled Caste and Scheduled Tribes (Prohibition of Transfer of certain lands) Act, 1978 (hereinafter referred to as "PTCL Act"). When the plaintiff filed petition before the Assistant Commissioner, Bangalore 6 South Sub-Division, Bangalore for declaring the sale deeds as null and void, the same was allowed by the Assistant Commissioner, vide order dated 04.10.1996 and sale deed was declared as null and void. An appeal came to be filed before the Deputy Commissioner, which was allowed on 13.10.1997 by setting aside the order of the Assistant Commissioner. The plaintiff filed writ petition in W.P.No.31033/2010 before the High Court, in the meanwhile, the defendants proposed for amicable settlement. After the discussion, they entered into compromise, during the pendency of the writ petition as the compromise was not permissible in the said writ petition, they mutually agreed for the terms and conditions. The plaintiff paid Rs.4,80,000/- to the defendant No.1 and Rs.7,20,000/- to the defendant No.2 and Rs.3,00,000/- to the defendant No.3 and they also acknowledged the receipts for having received the 7 amount. The receipts were issued by defendant Nos.1 and 2 as the defendant No.3 was a close relative of plaintiff and he did not insist for the receipt from defendant No.3 for having paid Rs.3,00,000/-. The defendant agreed that in the event of non availability of the compensation amount and the sites under the incentive scheme, they agreed to repay amount received from the plaintiff. The writ petition came to be allowed on 08.12.2011, the W.A.No.538/2012 filed before the Larger Bench, which came to be allowed and the order passed by the single Judge inW.P.No.31033/2010 was set aside. The plaintiff also filed SLP before the Hon'ble Supreme Court, which came to be dismissed on 06.12.2013. The plaintiff demanded the defendants to return the amount, but they had given evasive reply. The plaintiff is poor person have arranged Rs.15,00,000/- with great difficulty and paid to the defendants towards the 8 settlement. Later, notice also issued, but they have not complied. The defendant No.3 has made an untenable reply to the notice. The plaintiff sent legal notice on 07.08.2014 to the defendant No.2, as per the provisions of Karnataka Co-operative Societies Act, 1959 (hereinafter referred to as "Societies Act"
and filed the suit.
5. Defendant No.1 appeared and filed separate written statement, contending that the writ petition filed by the plaintiff by challenging the order of Special Deputy Commissioner, Bangalore dated 13.10.1997 after expiry of 13 years of alienation and order of the Deputy Commissioner, hence, the writ petition came to be dismissed. Further denied that the defendants received any amount and contended that the plaintiffs persuaded these respondents not to contest the writ petition and he had agreed to pay Rs.4,80,000/- to 9 this defendant. Such proposal if was not offered by the plaintiff, he would have contested the writ petition on merits. There is no privity of contract between the plaintiff and defendant for repayment of Rs.4,80,000/- which was voluntarily paid by the plaintiff, knowing the consequences of the said writ petition, now he is estopped from claiming the said amount on the ground that the litigation ended adverse to him by the larger Bench of the High Court of Karnataka and the Hon'ble Supreme Court. Therefore, the defendants are not liable to pay any amount to the plaintiff. Hence, prayed for dismissing the suit.
6. The defendant No.2 also filed written statement contending that the suit is not maintainable. There is no mutual agreement for receiving any compensation and sites under the incentive scheme. The land in dispute was the subject 10 matter of the writ petition. The plaintiff filed writ petition challenging the order of Deputy Commissioner after 14 years and there is no amicable settlement between plaintiff and defendants. The defendants never agreed to repay the amount. The order passed by the High Court and Hon'ble Supreme Court, on merits and no question of compromise. The plaintiff never agreed and averments are untenable. The suit is not maintainable by defendant No.2 and is not legally recoverable debt. There is no notice under Section 125 of Societies Act. Hence, prayed for dismissing the suit.
7. The defendant No.3 also taken similar contention that he is not aware about the compromise held in W.P.No.31033/2010. The defendant No.3 replied to the notice given by the plaintiff. No cause of action arose for filing the suit. The defendants not 11 received any amount of Rs.3.00 lakh. Hence, prayed for dismissing the suit.
8. Based upon the pleadings, the Trial Court framed 5 issues. On behalf of the plaintiff, the plaintiff himself examined as PW.1 and got marked 8 documents. On behalf of the defendants, they got examined two witnesses and got marked 4 documents. The Trial Court after hearing the arguments, answered Issue No.1 in the partly affirmative. Issue Nos.2 and 3 in negative and issue No.4 in partly affirmative and finally decreed the suit in part, directing the defendant No.1 to pay Rs.4,80,000/- and defendant No.2 to pay Rs.7,20,000/- together with 10% interest p.a. However, the suit against defendant No.3 has been dismissed. Hence, the defendant Nos.1 and 2 filed these appeals before this court.12
9. Learned counsel for the appellant in RFA No.658/2017 has contended that the land belonging to the plaintiff, which was the granted land and there is a prohibition in selling the same. In spite of the same, the plaintiff sold the land to the defendant No.3 in the year 1980. In turn defendant No.3 sold the same to the defendant No.1. Since defendant No.2-the Society, cannot purchase the property, it was purchased in the name of defendant No.1, even though there was prohibition, the property has been sold. Later, the BDA has acquired the land. The plaintiff filed petition before the Assistant Commissioner and sale deeds were set aside. Subsequently, the same was set aside by the Deputy Commissioner. The order of Deputy Commissioner was challenged before the High Court in the writ petition. Subsequently, writ petition was allowed and the same was set aside by the Division Bench which 13 was upheld by the Hon'ble Supreme Court. Therefore, when there is no privity of agreement or contract, the question of paying money by the defendant No.2 to the plaintiff, does not arise. There is no notice issued under Section 125 of the Societies Act. The Trial Court committed error in decreeing the suit. Therefore, prayed for allowing the appeal.
10. Per contra, learned Senior counsel for the respondent has supported the judgment of the Trial Court. The amount was paid by the plaintiff as the defendants shall not oppose the writ petition and he has promised to pay the money, accordingly paid the money and there was acknowledgement received by the plaintiff. The plaintiff was illiterate, the Society had received entire compensation from the Government. The defendant No.2 also received amount from the plaintiff, as well as compensation 14 from the BDA, it is a double benefit. There was incentive scheme for giving 3 sites by the Society which was not given. Therefore, it is contended that there is no error committed by the Trial Court in decreeing the suit. Hence, prayed for dismissing the appeals.
11. Having heard the arguments, perused the records, the point that arises for my consideration are:
1. Whether, the notice under Section 125 of Societies Act is necessary for filing the suit against Defendant No.2/Society?
2. Whether, the plaintiff is entitled for recovery of any money from the defendant Nos.1 and 2/appellants?
3. Whether the judgment of the Trial Court calls for any interference?15
12. In order to prove the case of the plaintiff, the plaintiff himself examined as PW.1. He has filed affidavit evidence and got marked 8 documents. The Ex.P1 is a receipt issued by defendant No.1, for having received Rs.4,80,000/- from the plaintiff in respect of settlement in Sy.No.118, land belonging to plaintiff in W.P.No.31033/2010. Ex.P2 is the receipt issued by defendant No.2 in favour of the plaintiff for having received amount of Rs.7,20,000/-. Ex.P3 is the order passed by the Single Judge/Co-Ordinate Bench in W.P.No.31033/2010 in favour of the plaintiff.
Ex.P4 is order passed by the Division Bench in writ appeal, by setting aside the order of Single Judge. Ex.P5 is copy of legal notice. Exs.P6 and P7 are acknowledgment and receipts. Ex.P8 is the reply notice issued by defendant No.2.
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13. The plaintiff reiterated the averments in the affidavit evidence. On the other hand, the defendant examined as DW.1 and DW.2 and got marked Exs.D1 to D4. Ex.D1 is certified copy of the judgment passed in writ appeal in W.A.No.538/2012. Ex.D2 is the order passed by Hon'ble Supreme Court in SLA No.31387/2012. Ex.D3 is the legal notice issued by the plaintiff and Ex.D4 is the reply and it is undisputed documents.
14. On careful reading of the evidence of the parties, it is not in dispute that the plaintiff was the grantee of the land granted by the State Government situated in Nagadevanahalli Village measuring 2 acres 33 guntas in the year 1961. The saguvali chit also issued in the year 1970 and there is a bar for alienation of the granted land by the allotees or grantee. Admittedly, the said property has been sold 17 to the defendant No.3 by the plaintiff in the year 1980. In turn, defendant No.3 sold the property to the defendant No.1 in the year 1985 under the sale deed, even though, there is a bar for alienation. It is also an admitted fact that later the plaintiff filed application before the Assistant Commissioner for restoration of the land, which came to be allowed. Whereas the Deputy Commissioner set aside the same, in the appeal vide order dated 13.10.1997, this is also not in dispute. It is also not in dispute that the plaintiff being aggrieved with the order of the Deputy Commissioner filed W.P.No.31033/2010 for challenging the order of Deputy Commissioner, which came to be allowed by the Single Judge of High Court as per Ex.P3. During the pendency of the writ petition, it is contended by the plaintiff that there was a mutual agreement between the plaintiff and defendant Nos.1 to 3, that they shall not contest the writ petition and if 18 they succeed the same, if they are not contested, hence paid Rs.4,80,000/- to the defendant No.1 and Rs.7,20,000/- to the defendant No.2. Admittedly, the Exs.P1 and P2 are the acknowledgments for having received the amount from the plaintiff by the defendant Nos.1 and 2. Subsequently, the defendant No.3, filed writ appeal before the Division Bench, where the Division Bench set aside the order of the single judge for restoring the land in favour of the plaintiff, on the ground that the property was already acquired by BDA and the Division Bench has held there is violation of Section 4 of the said Act and the only concern is that who is entitled for compensation. In this regard, the Division Bench has categorically held that the plaintiff filed affidavit, before the Deputy Commissioner, in the appeal that he has no objection to allow the appeal. On that ground, the order of the single Judge passed in writ petition has been set 19 aside. It is an admitted fact that subsequently there was dispute for receiving the compensation. A civil suit has been filed by the defendant No.3 and defendant Nos.1 and 2, where the Civil Judge has decreed the suit in LAC No.20/2000, holding that the Society-claimant No.3 is entitled for compensation. Accordingly, the entire compensation has been received by the defendant No.2-Society, which clearly reveals though the Society and the defendant No.1 including the defendant No.3, undertakes not to contest the matter and received Rs.4,80,000/- and Rs.7,20,000/-, but subsequently through defendant No.3, they filed the appeal and got the order. Subsequently, the defendant Nos.1 and 2 received the compensation from the BDA claiming the ownership of the said land, which clearly reveals, even though the defendant Nos.1 and 2 received money from the plaintiff for not contesting the matter in the 20 proceedings before the High Court, but later the order of the Single Judge has been set aside. When the plaintiff stated no objection for allowing the appeal before the Deputy Commissioner, it all reveals it is a mutual agreement between parties and he has paid the amount to the defendant Nos.1 and 2. Therefore, there was mutual understand between the them and the amount has been received by the defendant both from plaintiff as well as from Government as compensation they are double benefited. Therefore, the amount required to be payable to the plaintiff. Therefore, the plaintiff is entitled for the recovery of Rs.4,80,000/- from the defendant No.1 and Rs.7,20,000/- from defendant No.2.
15. As regards to issuing notice under Section 125 of the Co-operative Societies Act, it is not necessary as it is not touching the affairs of the 21 management of the Society in order to issue notice. In this regard, the Co-ordinate Bench of this court has held in the case of "M/s. Deepa House Building Co- operative Society vs. Vainkuntegowda and Others reported in 2015 (3) AKR 215". When the subject matter is not touching the Constitution, Management of the Society, notice under Section 125 is not required. Here in this case, the amount received by defendant Nos.1 and 2 are mutual agreement for not contesting the matter and they received the money. Subsequently, they received the amount of compensation. It is the mutual understanding which is not the affairs and management of the Society. Therefore, question of issuing notice under Section 125 of Societies Act, does not arises. Therefore, the judgment and decree passed by the Trial Court in allowing the suit of the plaintiff does not call for interference. 22
Accordingly, I pass the following, Both the appeals filed by the defendant Nos.2 and 1, are hereby dismissed.
Draw decree accordingly.
Sd/-
JUDGE AKV