Karnataka High Court
A S Sunanda vs C R Venkataramu on 9 July, 2015
Equivalent citations: 2015 (4) AKR 17
Author: L.Narayana Swamy
Bench: L.Narayana Swamy
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JULY, 2015
BEFORE
THE HON'BLE MR. JUSTICE L.NARAYANA SWAMY
REGULAR SECOND APPEALS NO. 208/2011 C/W 209/2011,
210/2011, 211/2011, 212/2011, 213/2011
REGULAR SECOND APPEAL NO.208/2011
BETWEEN:
A S SUNANDA
W/O.G K GOPALAGOWDA
AGED ABOUT 57 YEARS,
R/AT.NO.323, 7TH MAIN
ALANAHALLI LAYOUT
MYSORE - 570001 ... APPELLANT
(BY SRI.R S RAVI & SRI.NARENDRA D V GOWDA, ADVS. )
AND:
1. C R VENKATARAMU
S/O.RANGAPPA
AGED ABOUT 76 YEARS,
R/AT.NO.15, J C LAYOUT,
CHAMUNDI HILLS ROAD
MYSORE-570004
2. SRIDHAR BABU
S/O.VENKATARANGAIAH
AGED ABOUT 41 YEARS,
R/AT.NO.161, J C LAYOUT
CHAMUNDI HILLS ROAD
MYSORE-570004
2
3. MURTHY
S/O.LINGAIAH
AGED ABOUT 41 YEARS,
AT.NO.202, J C LAYOUT
CHAMUNDI HILLS ROAD
MYSORE-570004
4. KARNATAKA ARMED RESERVED
POLICE EMPLOYEES
CO OPERATIVE SOCIETY
LALITHA MAHAL ROAD,
MYSORE - 570003
REP. BY ITS PRESIDENT ... RESPONDENTS
(BY SRI.K.V.NARASIMHAN , ADV. FOR C/R-2;
SRI.A.G.SHIVANNA, ADV. FOR C/R-4)
THIS RSA IS FILED U/S 100 OF CPC, AGAINST THE
JUDGMENT & DECREE DATED: 20.10.2010 PASSED IN
R.A.NO.391/2010 ON THE FILE THE PRESIDING OFFICER,
FAST TRACK COURT-II, MYSORE, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE
DATED:13.10.2006 PASSED IN O.S.NO.271/04 ON THE FILE
OF THE IV-ADDL. I CIVIL JUDGE (JR.DN), MYSORE.
REGULAR SECOND APPEAL NO.209/2011
BETWEEN:
A S SOMESH
S/O.LATE SIDDEGOWDA
AGED ABOUT 46 YEARS
R/AT.NO.66, 3RD BLOCK, BEHIND CHINMAYA
SCHOOL, JAYALAKSHMIPURAM
MYSORE-570001 ... APPELLANT
(BY SRI.R S RAVI & SRI.NARENDRA D V GOWDA, ADVS. )
AND:
3
1. C R VENKATARAMU
S/O.RANGAPPA
AGED ABOUT 76 YEARS,
R/AT.NO.15, J C LAYOUT,
CHAMUNDI HILLS ROAD
MYSORE-570004
2. SRIDHAR BABU
S/O.VENKATARANGAIAH
AGED ABOUT 41 YEARS,
R/AT.NO.161, J C LAYOUT
CHAMUNDI HILLS ROAD
MYSORE-570004
3. MURTHY
S/O.LINGAIAH
AGED ABOUT 41 YEARS,
AT.NO.202, J C LAYOUT
CHAMUNDI HILLS ROAD
MYSORE-570004
4. KARNATAKA ARMED RESERVED
POLICE EMPLOYEES
CO OPERATIVE SOCIETY
LALITHA MAHAL ROAD,
MYSORE - 570003
REP. BY ITS PRESIDENT ... RESPONDENTS
(BY SRI.K.V.NARASIMHAN , ADV. FOR C/R-2;
SRI.A.G.SHIVANNA, ADV. FOR C/R-4)
THIS RSA IS FILED U/S 100 OF CPC, AGAINST THE
JUDGMENT & DECREE DATED: 20.10.2010 PASSED IN
R.A.NO.402/2010 ON THE FILE THE PRESIDING OFFICER,
FAST TRACK COURT-II, MYSORE, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE
DATED:13.10.2006 PASSED IN O.S.NO.275/04 ON THE FILE
OF THE IV-ADDL. I CIVIL JUDGE (JR.DN), MYSORE.
4
REGULAR SECOND APPEAL NO.210/2011
BETWEEN:
1. G SHIVAKUMAR
S/O.V S GOVINDA RAO
AGED ABOUT 44 YEARS
2. SMT UMARANI
W/O.G SHIVAKUMAR
AGED ABOUT 38 YEARS,
BOTH ARE R/AT.NO.506, 2ND CROSS
MARUTHI TEMPLE ROAD LAYOUT
KUVEMPUNAGAR
MYSORE - 570008 ... APPELLANTS
(BY SRI.R S RAVI & SRI.NARENDRA D V GOWDA, ADVS. )
AND:
1. C R VENKATARAMU
S/O.RANGAPPA
AGED ABOUT 76 YEARS,
R/AT.NO.15, J C LAYOUT,
CHAMUNDI HILLS ROAD
MYSORE-570004
2. SRIDHAR BABU
S/O.VENKATARANGAIAH
AGED ABOUT 41 YEARS,
R/AT.NO.161, J C LAYOUT
CHAMUNDI HILLS ROAD
MYSORE-570004
3. MURTHY
S/O.LINGAIAH
AGED ABOUT 41 YEARS,
5
AT.NO.202, J C LAYOUT
CHAMUNDI HILLS ROAD
MYSORE-570004
4. KARNATAKA ARMED RESERVED
POLICE EMPLOYEES
CO OPERATIVE SOCIETY
LALITHA MAHAL ROAD,
MYSORE - 570003
REP. BY ITS PRESIDENT ... RESPONDENTS
(BY SRI.K.V.NARASIMHAN , ADV. FOR C/R-2;
SRI.A.G.SHIVANNA, ADV. FOR C/R-4)
THIS RSA IS FILED U/S 100 OF CPC, AGAINST THE
JUDGMENT & DECREE DATED: 20.10.2010 PASSED IN
R.A.NO.390/2010 ON THE FILE THE PRESIDING OFFICER,
FAST TRACK COURT-II, MYSORE, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE
DATED:13.10.2006 PASSED IN O.S.NO.273/04 ON THE FILE
OF THE IV-ADDL. I CIVIL JUDGE (JR.DN.), MYSORE.
REGULAR SECOND APPEAL NO.211/2011
BETWEEN:
SMT M S SHEELA
W/O.A S SOMESH
AGED ABOUT 38 YEARS,
R/AT.NO.66, 3RD BLOCK,
BEHIND CHINMAYA SCHOOL
JAYALAKSHMIPURAM
MYSORE - 570001 ...APPELLANT
(BY SRI.R S RAVI & SRI.NARENDRA D V GOWDA, ADVS. )
AND:
1. C R VENKATARAMU
S/O.RANGAPPA
6
AGED ABOUT 76 YEARS,
R/AT.NO.15, J C LAYOUT,
CHAMUNDI HILLS ROAD
MYSORE-570004
2. SRIDHAR BABU
S/O.VENKATARANGAIAH
AGED ABOUT 41 YEARS,
R/AT.NO.161, J C LAYOUT
CHAMUNDI HILLS ROAD
MYSORE-570004
3. MURTHY
S/O.LINGAIAH
AGED ABOUT 41 YEARS,
AT.NO.202, J C LAYOUT
CHAMUNDI HILLS ROAD
MYSORE-570004
4. KARNATAKA ARMED RESERVED
POLICE EMPLOYEES
CO OPERATIVE SOCIETY
LALITHA MAHAL ROAD,
MYSORE - 570003
REP. BY ITS PRESIDENT ... RESPONDENTS
(BY SRI.K.V.NARASIMHAN , ADV. FOR C/R-2;
SRI.A.G.SHIVANNA, ADV. FOR C/R-4)
THIS RSA IS FILED U/S 100 OF CPC, AGAINST THE
JUDGMENT & DECREE DATED: 20.10.2010 PASSED IN
R.A.NO.403/2010 ON THE FILE THE PRESIDING OFFICER,
FAST TRACK COURT-II, MYSORE, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE
DATED:13.10.2006 PASSED IN O.S.NO.276/04 ON THE FILE
OF THE IV-ADDL. I CIVIL JUDGE (JR.DN), MYSORE.
7
REGULAR SECOND APPEAL NO.212/2011
BETWEEN:
G K GOPALA GOWDA
S/O.KRISHNE GOWDA
AGED ABOUT 70 YEARS,
R/AT.NO.323, 7TH MAIN
ALANAHALLI LAYOUT
MYSORE - 570008 .. APPELLANT
(BY SRI. R S RAVI & NARENDRA D V GOWDA,ADVS. )
AND:
1. C R VENKATARAMU
S/O.RANGAPPA
AGED ABOUT 76 YEARS,
R/AT.NO.15, J C LAYOUT,
CHAMUNDI HILLS ROAD
MYSORE-570004
2. SRIDHAR BABU
S/O.VENKATARANGAIAH
AGED ABOUT 41 YEARS,
R/AT.NO.161, J C LAYOUT
CHAMUNDI HILLS ROAD
MYSORE-570004
3. MURTHY
S/O.LINGAIAH
AGED ABOUT 41 YEARS,
AT.NO.202, J C LAYOUT
CHAMUNDI HILLS ROAD
MYSORE-570004
4. KARNATAKA ARMED RESERVED
POLICE EMPLOYEES
CO OPERATIVE SOCIETY
LALITHA MAHAL ROAD,
8
MYSORE - 570003
REP. BY ITS PRESIDENT ... RESPONDENTS
(BY SRI.K.V.NARASIMHAN , ADV. FOR C/R-2;
SRI.A.G.SHIVANNA, ADV. FOR C/R-4)
THIS RSA IS FILED U/S 100 OF CPC, AGAINST THE
JUDGMENT & DECREE DATED: 20.10.2010 PASSED IN
R.A.NO.393/2010 ON THE FILE THE PRESIDING OFFICER,
FAST TRACK COURT-II, MYSORE, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE
DATED:13.10.2006 PASSED IN O.S.NO.274/04 ON THE FILE
OF THE IV-ADDL. I CIVIL JUDGE (JR.DN), MYSORE.
REGULAR SECOND APPEAL NO.213/2011
BETWEEN:
D M SATISH
S/O.D M MALLIKARJUNAIAH
AGED ABOUT 38 YEARS,
R/AT.NO.725/11, 13TH CROSS
ANIKETHANA ROAD
KUVEMPUNAGAR
MYSORE-570001 ... APPELLANT
(BY SRI.R S RAVI & SRI.NARENDRA D V GOWDA,ADVS. )
AND:
1. C R VENKATARAMU
S/O.RANGAPPA
AGED ABOUT 76 YEARS,
R/AT.NO.15, J C LAYOUT,
CHAMUNDI HILLS ROAD
MYSORE-570004
2. SRIDHAR BABU
S/O.VENKATARANGAIAH
AGED ABOUT 41 YEARS,
9
R/AT.NO.161, J C LAYOUT
CHAMUNDI HILLS ROAD
MYSORE-570004
3. MURTHY
S/O.LINGAIAH
AGED ABOUT 41 YEARS,
AT.NO.202, J C LAYOUT
CHAMUNDI HILLS ROAD
MYSORE-570004
4. KARNATAKA ARMED RESERVED
POLICE EMPLOYEES
CO OPERATIVE SOCIETY
LALITHA MAHAL ROAD,
MYSORE - 570003
REP. BY ITS PRESIDENT ... RESPONDENTS
(BY SRI.K.V.NARASIMHAN , ADV. FOR C/R-2;
SRI.A.G.SHIVANNA, ADV. FOR C/R-4)
THIS RSA IS FILED U/S 100 OF CPC, AGAINST THE
JUDGMENT & DECREE DATED: 20.10.2010 PASSED IN
R.A.NO.392/2010 ON THE FILE THE PRESIDING OFFICER,
FAST TRACK COURT-II, MYSORE, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE
DATED:13.10.2006 PASSED IN O.S.NO.272/04 ON THE FILE
OF THE IV-ADDL. I CIVIL JUDGE (JR.DN), MYSORE.
THESE APPEALS COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY AFTER HAVING HEARD AND
RESERVED FOR JUDGMENT ON 04.12.2014, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
These regular second appeals are filed by the appellants-plaintiffs being aggrieved of the concurrent 10 judgment and decree passed by the trial court in O S Nos.275/2004, 271/2004, 273/2004, 276/2004, 274/2004 and 272/2004 on the file of IV Addl. First Civil Judge (Jr.Dn.) at Mysore dated 13.10.2006 which is confirmed by the lower appellate court by the common judgment and decree dated 20.10.2010 in R A Nos.390, 391, 392, 393, 402, 403/2010 on the file of the Fast Track Court-II at Mysore. Both the courts have dismissed the suit for the relief of permanent injunction.
2. The common facts to be stated in brief are that the appellants are the absolute owners of site Nos.24, 14, 23, 13, 21 and 20 situated at `D' Block, J C Layout, Chamundi Hill Road, Nazarbad Mohalla, Mysore City having purchased the same under registered sale deeds dated 4.4.2003 for valuable consideration, executed by Sri Jayachamarajendra Wodeyar Bahadur Awara Nivrutha Aramane Guards, Vadya Ghosti Mathu Himbalakara Gruha Nirmana Sahakara Sangha Niyamitha, a registered society under the Karnataka Cooperative Societies Act, hereinafter referred to as `the society'.
11
3. Originally 51 acres of land in Sy.No.4 of Kurubarahalli village was gifted by His Highness Maharaja of Mysore late Sri Jayachamarajendra Wodeyar Bahadur on 11.1.1971 by means of a registered gift deed in favour of his Highness Maharaja Body Guard Co-operative Society Ltd., hereinafter referred to as `the respondent society'. The said society later named as Karnataka Armed Reserve Police Employees Co-operative Society. It is stated, the society is formed by members of the respondent society for distribution of sites among employees. The society approached the Government for permission to sell the vacant plots to third parties for want of funds, after allotment of sites to the members. M/s.Chamundi Developers came forward to develop the layout by investing amount by offering tender. The society sold 8 sites to the persons nominated by M/s.Chamundi Developers for having developed the layout, that is how the appellants purchased the above sites on 4.4.2003 and they were put into physical possession and enjoyment. The khata, licence and approved plan were granted by M U D A for the construction of house in the said 12 sites. The respondents having interfered, the suits came to be filed.
4. The respondents appeared and contested the suits by filing written statement with similar contentions. It is submitted that His Highness Maharaja Jayachamarajendra Wodeyar Bahadur gifted land in Sy.No.4 of Kurubarahalli to the H.H.M.C.S Society now it is called Karnataka Armed Revenue Police Employees Co-operative Society. At no point of time J.W.B.A.N.A.G.V.G.M.H.G.N.S.S.N was in existence. The remaining land is reserved for the purpose of playground, park, templeand other basic amenities. The President of H.H.M.B.G.C.S Ltd., distributed 375 sites to the members in the year 1993. The compliance report was filed by the President of H.H.M.B.G.C.S Ltd. and also sought for extension of time to provide basic amenities. The notification dated 16.05.1998 was quashed by the government after due verification. The appellants approached this court against the order of the government to give prior notice to both parties and to pass necessary orders. There was no privity of contract between H.H.M.B.G.C.S Ltd., the 5th defendant and 13 M/s.Chamundi Developers. The appellants are not the beneficiaries under the gift deed and title cannot pass to the appellants as it is in gross violation of the terms of the order passed in Misc.No.11/1980. The identity described in the schedule to the plaint is under custody and control of society, the society has no title to raise funds on the lands, which was owned by the respondent society. There is no title vested with the society in respect of the suit schedule properties. The respondents have been the owners in common being the beneficiaries under the gift deed. Thus they prayed for dismissal of the suit.
5. The trial court based on the above pleadings of the parties, framed relevant issues as to lawful possession of the plaintiffs, inference by the defendants and entitlement of the appellants for the reliefs.
6. On behalf of the appellants, appellant in RSA No.209/2011 who is GPA holder of the appellants in other appeals has been examined as PW-1 and documents were marked in support of their respective cases. In all the cases, on behalf of the respondents, DW-1 to DW-4 were examined and Ex.D1 to D15 were marked.
14
7. The trial court after considering the evidence on record was pleased to dismiss the suits on the ground that the society was not delivered with possession and therefore it was not in a position to handover possession to the appellants and it had no authority to sell the sites, which is affirmed by the lower appellate Court.
8. I have heard the learned counsel for the appellants and learned counsel for the respondents and perused the entire case records.
9. This Court while admitting the appeals on 20.04.2011, framed the following substantial questions of law for consideration:
(a) Whether non-consideration of the material evidence on record like Ex.P8 and other relevant documents, the approval by the MUDA by granting license and building plan to put up construction and also the fact that the defendants being party to the agreement Ex.P8, the courts below are justified in refusing to grant injunction?
(b) Whether the courts below committed an error in not considering the material evidence on record 15 and vital admission by the opposite parties which resulted in failure of justice?
My findings are in favour of the appellants for the following reasons:
10. The admitted facts in the case are that suit schedule properties are part and parcel of land in Sy.No.4 measuring 51 acres which was gifted by His Highness Maharaja in favour of erstwhile respondent society. The land was gifted with a direction to distribute sites among the employees. It is also an admitted fact that the retired employees of the palace formed the society. The office bearers of the society filed Misc. Case No.11/1980 before the learned District Judge for removal of executive committee members of erstwhile respondent society, which came to be dismissed. The Government had issued guidelines on 16.5.1998 in favour of the society with certain conditions. Condition No.7 therein entitled the society to auction sites adjacent to the main road to augment money for the purpose of development of the layout. The society also preferred W P No.29997/2003 before this Court challenging the government order dated 9.6.2003 and this Court quashed the order and remitted the matter to 16 reconsider the same after giving sufficient opportunity to the petitioner to participate in the proceedings. By the impugned order therein, the Government had withdrawn the order dated 16.5.1998.
11. The appellants have adduced oral evidence reiterating the plaint averments. They have produced Ex.P1 certified copy of sanction letter issued by Mysore Urban Development Authority, Ex.P2 letter written by M U D A, Ex.P3 terms and conditions letter for purchase of sites, Ex.P4 Sanction letter by M U D A, Ex.P6 sketch, Ex.P7 sale deed, Ex.P8 khata letter, Ex.P9 Kandayam letter, Ex.P10 sketch, Ex.P11 & 12 licence letter and Ex.P13 general power of attorney. All the appellants have produced these documents, but marking of these documents is different so far as serial numbers are concerned.
12. On the other hand, the respondents examined DW-1 to DW-4 and have got produced and marked Ex.D1 copy of the gift deed, Ex.D2 copy of the order in Misc. No.11/80, Ex.D3 copy of the agreement letter, Ex.D4 Government Notification, Ex.D5 copy of the Government Notification, 17 Ex.D6 copy of the order in W P No.29997/2003, Ex.D7 Government Circular, Ex.D8 copy of the government notification, Ex.D9 notice, Ex.D10 to 13 photos, Ex.D14 letter written by members of KARP to the President and Ex.D15 letter written by members of KARP to the President.
13. The courts below have proceeded on the basis that no title was passed on to the society, no possession was handed over to the society for distribution of sites. Under these circumstances, executing sale deeds in respect of the schedule sites to the appellants is without any right, title or interest in the said property. The society having no title and right over the property, no better title can be passed on to the appellants in whose favour the sale deeds have been executed by the society and therefore the appellants have not derived any title or valid title or possession in respect of the schedule properties. It is to be mentioned here that it is not the case of the respondent society that developmental charges are paid by the respondent society. Admittedly, the developmental charges are paid by the society in favour of MUDA and got approved the layout plan. It is admitted in the evidence of 18 DW-1 to DW-4 that the respondent society had no funds for development of the layout. The very recital of Ex.P8 continuation agreement depicts that it is in continuation of the agreement which the society had with M/s.Chamundi Developers. Admittedly, the society was formed by the ex-
employees of the palace itself and it has undertaken the developmental work of the layout, obtained permission from the Government dated 16.5.1998, paid developmental charges in favour of M U D A on 4.2.1999 as per Ex.P9, got the plan approved and at that stage the Government order dated 2.7.2004 replaced the respondent society in place of the society and regularized the layout plan in favour of respondent society.
14. It is the specific case of the appellants that when the respondent society did not take any action for a long time for formation and distribution of sites, the ex-employees themselves formed registered society and undertook the developmental activity. The society has developed the layout and the benefit of that work is availed by the respondent society and it is not the case of the respondent society that 19 the society has misused the funds or acted in prejudicial to the interest of the respondent society. From the records it is clear that the layout was developed because of the efforts made by the society and thereby the respondent society is duty bound to honour both the acts beneficial to the respondent society and also the acts which are prejudicial to the interest of the respondent society because the respondent society has taken benefit of the acts and deeds done by the society.
15. It is admitted by the defendants witnesses that the erstwhile respondent society did not take any developmental activity in respect of the land for a long time and it had no funds to develop it also. DW-1 has admitted that he was the Secretary of the society. DW-1 has also admitted that he has signed Ex.P8 continuation agreement. He has further admitted that all the respondents have signed Ex.P8.
16. DW-2 has admitted in his cross-examination that the land in question was an open space when it was gifted. He does not know whether H H M BH G has prepared the layout plan. The respondent society did not make efforts to 20 form roads and such other civic amenities. DW-2 was suggested that when the respondent society did not take any steps to develop the layout, the beneficiaries formed the society, he has stated that some of the members formed the said society. He has also stated that he has no documents to show that the place on the Western side of the road leading to Chamundi Hills is meant for civic amenities. It is admitted by DW-2 that the society had approached the authority for approval of the layout plan. Out of 375 beneficiaries nearly 100 to 150 members had unauthorizedly constructed the houses. DW-2 has admitted to have signed the continuation agreement Ex.P8.
17. DW-3 and DW-4 have also admitted to have signed Ex.P8. Having signed Ex.P8 the continuation agreement, they have deposed as if the society had no authority to sell the suit schedule properties. But the subsequent events are against the deposition of DW-1 to DW-4, rendering the deposition of DW-1 to DW-4 unbelievable.
18. The appellants sought to produce additional documents namely, Resolution dated 24.4.1993 passed by 21 the respondent society. In the said resolution, it is mentioned that there are vacant sites available in the said area and after reserving the place for civic amenities and distributing the sites for 375 members of the respondent society, the remaining sites will have to be sold. There is also mention of the society which has to deposit the money recovered from the sale of the sites and to deposit the same in the respondent society. When sale was authorized and direction is given to recover the sale proceeds and deposit in the respondent society, it is wrong on the part of the lower appellate court to hold that the said document will not improve the case of the appellants.
19. The appellants further sought to produce the joint memo filed by the parties in O S No.378/2006 filed by one M Lingaiah & another against the respondent society. In the said joint memo, the respondent society has undertaken to develop the survey number property by using the sale proceedings towards the said land to safeguard the interest of 375 persons who are ex-employees of Mysore Palace. It is also mentioned therein about entrustment of developmental 22 work to M/s.Chamundi Developers in Sy.No.4. On the basis of the said joint memo the suit O S No.378/2006 was withdrawn. This document was also discarded by the lower appellate court on the ground that it will not in any way support the case of the appellants. In the joint memo, the respondent society has undertaken to develop the suit property by using the sale proceeds and the Resolution dated 24.4.1993 directed the society to deposit the sale proceeds. Therefore, the said joint memo is an essential document and the lower appellate court has erroneously rejected the said document without properly appreciating the same.
20. The appellants further sought to produce copy of the written statement filed by the respondent society and an affidavit filed by the first respondent wherein they have admitted the sale of sites for the improvement of the suit survey number by the appellants' vendor. These documents were discarded by the lower appellate court on the ground that there was nothing about the right and title of the appellants' vendor to transfer the property, which belonged to the respondent society. These documents coupled with 23 resolution and the joint memo referred to above and the continuation agreement Ex.P8 and the written statement filed by the respondent society and first respondent and the admissions made by DW-1 to DW-4 in their cross- examination, do establish right of the society to execute sale deed in favour of the appellants and accordingly the society has executed the sale deed in favour of the appellants on the basis of the power accorded by the Government by the letter dated 16.5.1998, though it came to be modified by a later order dated 2.7.2004 incorporating respondent society in place of the society, and therefore it cannot be said that the possession of the appellants in respect of the suit schedule properties is illegal or unauthorized.
21. The appellants after having purchased the suit schedule properties for valuable consideration have acted upon the said sale deeds, obtained khata and paid taxes to the concerned as per the exhibits marked on their behalf and also obtained certificate of licence for construction of the house. It is also to be mentioned here that this Court while admitting the appeals, has permitted construction of the 24 houses by the appellants subject to result of the appeals. The respondent society has not denied and could not deny the additional documents sought to be produced, which are either their own documents and certified copies issued by the Court. The lower appellate court has erroneously rejected the said documents, which has resulted in miscarriage of justice in the case by not properly appreciating the same.
22. This Court by the order dated 1.4.2011 appointed Executive Engineer, Mysore Urban Development Authority as the Commissioner to visit the spot and to ascertain whether the suit schedule properties come within the civic amenity area. Accordingly, the Commissioner has submitted report to the effect that sites sold in favour of the appellants namely, Site Nos.24, 14, 23, 13, 21 & 20, `D' Block of the layout are not within the area earmarked for any civic amenity purpose. This supports the case of the appellants about possession and the properties are not part of civic amenity area.
23. It is to be mentioned here that the societies function on the basis of resolutions to do certain things and deeds either by the society itself or by the authorized person. The 25 respondent society has directed the society to deposit the sale proceeds in the respondent society, that means, there is clear authorization for sale of the sites also which has to be gathered by implication. Without an authority sale cannot take place and direction to deposit the sale proceeds cannot be given. The courts below have failed to appreciate both oral and documentary evidence adduced in the case and have also failed to draw proper inferences from the materials made available as above.
24. The learned counsel for the appellants placed reliance on the decision in Gaiv Dinshaw Irani & Ors. V. Tehmtan Irani & Ors, reported in AIR 2014 SC 2326 and contended that appellate court can take note of events subsequent to filing of litigation. Para-34 of the judgment reads as follows:
"34.Considering the aforementioned changed circumstances, the High Court taking note of the subsequent events moulded the relief in the appeal under Section 96 of the Code of Civil Procedure and the same has been challenged by the appellants before us. In ordinary course of litigation, the rights of parties are crystallized on the date of the 26 suit is instituted and only the same set of facts must be considered. However, in the interest of justice, a court including a court of appeal under Section 96 of the Code of Civil Procedure is not precluded from taking note of developments subsequent to the commencement of the litigation, when such events have a direct bearing on the relief claimed by a party or on the entire purpose of the suit the Courts taking note of the same should mould the relief accordingly...."
Therefore, this court is not precluded from taking into consideration the subsequent events in the ends of justice.
25. The learned counsel for the appellants further relied on decision in Uttam Singh Dugal & Co. Ltd., v. Union Bank of India & Others, reported in AIR 2000 SC 2740 to contend that when a statement is made to a party and such statement is brought before the Court showing admission of liability and the other side failed to explain, decree has to be passed on the basis of such admission. Relevant para in Para-13 reads as follows:
"13.....We have adverted to the basis of the claim and the manner in which the trial Court has dealt with the same. When the trial Judge states that the statement made in the proceedings of the Board of 27 Directors meeting and the letter sent as well as the pleadings when read together, leads to unambiguous and clear admission with only the extent to which the admission is made is in dispute. And the Court had a duty to decide the same and grant a decree. We think this approach is unexceptionable".
26. The respondent society has filed statement of objections in the above appeal on 8.3.2011 admitting the suit claim in the following manner:
"5. The members of said society pressurized this respondent, through the said society, that the said society shall be handed over with the task of formation of the layout by obtaining the necessary sanction from the concerned authority. Therefore, a general body meeting of JCWB Society and of the President of this respondent was convened on 24.4.1993. In the said General Body it was decided to sell the vacant/excess sites, which would be available after allotment of sites and reerving sites for civic amenity sites. Pursuant to the said decision of general body a decision was taken by committee of the JCWB Society to sell the excess sites. Accordingly, JCWB Society after following all 28 the procedures sold the schedule sites in favour of plaintiff.
6. It is submitted that this respondent was not a party to above suit. However, the then President of the respondent Society has made an application before the learned Trial Judge to come on record to as one of the defendants in the above said suit. The then President was not authorized by any Board resolution to make an application to come on record in the above said suit. The then President of this respondent Society filed the written statement in his individual capacity, which was contrary to materials on record. A society has to be represented by Secretary and not by the President. However, this respondent had filed a memo before the learned Trial Judge admitting the possession and ownership of the appellant. Neither the learned Trial Judge nor the 1st appellate Court has considered the above said memo.
7. This respondent, subsequent to the Government Order dated 2.7.2004, had entered into an agreement with the Developer to continue whatever the action/agreement/decision taken by JCWB Society. This respondent could not have completed the layout without the financial assistance of M/s.Chamundi Developers. This respondent had executed registered consent Deed dated 25.11.2010 29 in favour of the appellant. A copy of the consent deed dated 25.11.2010 is produced herewith for kind perusal of this Hon'ble Court."
27. In the backdrop of the above facts and circumstances, the above two decisions on which reliance was placed by the learned counsel for the appellants is relevant and aptly applicable to the facts of the present case.
28. The learned counsel for the respondent society has relied upon decision in Anathula Sudhakar vs., P Buchi Reddy (Dead) by Lrs & Ors. (Appeal (Civil) 6191 of 2001 to contend that in order to get relief of permanent injunction, the plaintiff has to establish lawful possession as on the date of the suit. Para-13 of the said judgment reads as follows:
"13. In a suit for permanent injunction to restrain the defendant from interfering with plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and defendant tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may prove 30 physical or lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Even in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue in such a suit, through it may arise incidentally or collaterally".
29. As already observed earlier, here in this case, the appellants have established the lawful possession over the suit schedule properties and therefore though there is no dispute about the ratio laid down in the above decision cannot be applied to the facts and circumstances of the case so as to deny relief to the appellants.
30. Further the learned counsel for the respondent society has placed reliance on the decision in College of Engineering Of.. vs., Asmita Basole (Mrs.) and another, reported in (1988) ILLJ 95 Bom. In which relevant portion in Para-9 reads as follows:
"9...The ratification in the eye of law is equivalent to previous authority. Section 200 of the Contract Act, however, lays down that an act done by one 31 person on behalf of another, without such other person's authority, which if done with authority would have the effect of subjecting a third party to damages or of terminating any right or interest of a third person, cannot by ratification be made to have such effect. The Section makes clear that if the rights of the third parties are affected, the ratification cannot validate the action which may initially be without any authority".
31. In the instant case, the sites which are sold in favour of the appellants are after the allotment of sites in favour of the beneficiaries and they are not part of civic amenity area and the benefit of sale is made use for the development of the layout. In the circumstances, the provisions of Section 200 of Contract Act are not applicable to the facts of the present case. There is no damage caused to the third party.
32. In the decision of Parappa vs., Bhimappa, reported in AIRKARR-2008-4-122, it is stated in Para-9 of the judgment that "for admission of the said commissioner's report as evidence, it is not necessary that the Commissioner should enter the witness box, or he should produce the said 32 report before the Court and the Court has to mark it as an exhibit in the case. In other words without marking the Commissioner's report as exhibit, without the Commissioner being examined in the case, the said commissioner's report can be taken as evidence in the case. Merely because the said piece of evidence is taken on record it does not follow that, all that is stated there is true or proved. Proof and relevancy is different from admissibility of the evidence". Therefore, the report of the Commissioner could be utilized as a piece of evidence supporting material to the case of the parties.
33. In the above facts and circumstances and for the reasons stated above, I am of the view that the courts below have committed an error in not considering the material evidence on record especially Ex.P8 and other relevant documents, and vital admission by the opposite parties as mentioned above and therefore the courts below are not justified in refusing relief of injunction which has resulted in failure of justice to the appellants. The substantial questions of law are answered accordingly.
33
34. In the result, appellants have established lawful possession in respect of the suit schedule properties as on the date of the suit and interference by the respondents, thereby entitled to the relief of permanent injunction. Accordingly, the regular second appeals are allowed, impugned judgment and decrees are hereby set aside and the suits of the appellants are decreed as prayed for. However, the parties are directed to bear their own costs.
Sd/-
JUDGE akd