Karnataka High Court
Sri Luke vs Sri Simon on 28 November, 2022
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 28TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
RSA NO.1264/2007 (INJ)
BETWEEN
SRI LUKE S/O LATE SRI. NINGAPPA,
AGE: 65 YEARS, R/AT NO. 10-1-131,
BEHIND PWD OFFICE,
PETHANI BAGH, MANGALPET,
BIDAR-585 401
...APPELLANT
(BY SMT. HEMA L. K., ADVOCATE)
AND
1. SRI SIMON S/O LATE SRI. GOVIND
SINCE DECEASED BY HIS LRS.,
1A. SHALINI S/O. LATE SRI SIMON
AGE: MAJOR, OCC: AGRI.
R/O. MANGALPET, BIDAR
1B. SEBASTIAN S/O. LATE SRI SIMON
AGE: MAJOR, OCC: AGRI.
R/O. MANGALPET, BIDAR
1C. DEBORAH S/O. LATE SRI SIMON
AGE: MAJOR, OCC: AGRI
1D. SUNNY S/O. LATE SRI SIMON
AGE: MAJOR, OCC: AGRI.
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R/O. MANGALPET, BIDAR
2. SRI SAJJU SEBASTIAN
S/O SRI. SIMON
R/AT MANGALPET, BIDAR
...RESPONDENTS
(BY SRI K. M. GHATE, ADVOCATE FOR R1(A) TO R1(D);
SRI MOHD. VIKHARUDDIN, ADVOCATE FOR R2)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT AND DECREE DATED 21.2.2007 PASSED IN
R.A.NO.35/2006 (OLD R.A.NO.20/2003) ON THE FILE OF
THE PRESIDING OFFICER, FAST TRACK COURT-II, BIDAR,
DISMISSING THE APPEAL AND CONFIRMING THE
JUDGEMENT AND DECREE DATED 29.10.2003 PASSED IN
OS.NO. 164/1997 ON THE FILE OF THE PRL.CIVIL JUDGE
(JR.DN.), BIDAR.
THIS APPEAL IS COMING ON FOR FURTHER HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by unsuccessful defendant feeling aggrieved by the concurrent judgments of both the Courts, wherein, suit for bare injunction filed by the plaintiffs is decreed and defendant herein is restrained from interfering with the plaintiffs' peaceful possession and enjoyment over the suit property.
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2. For the sake of convenience, the parties are referred to as per their ranks before the trial Court.
3. The subject matter of the suit is a plot measuring East-West 48' and North-South 50' situated in land bearing Survey No.4 of Bagh-E-Haman, Bidar. The plaintiffs contended that they have acquired title pursuant to sale deed executed by erstwhile owner on 30.11.1996. The plaintiffs claim that suit property was originally owned by one Mr.O.H.Samuel and he has voluntarily alienated the suit property in their favour and therefore, claimed title and possession over the suit property. The plaintiffs also alleged that defendant owns a property towards the southern side of the suit property. Alleging that defendant is interfering with plaintiffs' peaceful possession, the present suit is filed.
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4. The defendant on receipt of summons tendered appearance and filed written statement and stoutly denied the entire averments made in the plaint. The defendant on the contrary claims that the original owner has infact entered into an agreement to sell on 05.05.1987, which is much prior to the alleged sale deed for a sale consideration of Rs.3,000/- and defendant pursuant to agreement has delivered the possession of the vacant plot and therefore, plaintiffs cannot contend that they are in lawful possession and enjoyment over suit property.
5. The plaintiffs to substantiate their possession have examined plaintiff No.2 as PW.1 and one independent witness as PW.2 and relied upon 7 documentary evidence, which were marked as Exs.P1 to P7 while the defendant examined himself as DW.1 and one independent witness as DW.2 and produced 5 5 documentary evidence, which were marked as Exs.D1 to D5. The agreement of sale was marked as Ex.D1.
6. The trial Court having examined the oral and documentary evidence, accepted the contentions and claim made by the plaintiffs in the plaint. Referring to Ex.P1, which is a construction permission coupled with registered sale deed vide Ex.P3 and mutation order vide Ex.P4, the trial Court was of the view that the plaintiffs have succeeded in establishing their lawful possession over the suit property. Referring to title documents relied upon by the plaintiffs, the trial Court held that the plaintiffs have succeeded in proving their lawful possession over the suit property as on the date of filing of the suit.
7. Feeling aggrieved by the judgment and decree of the trial Court, the defendant preferred an appeal before the appellate Court. The defendant, 6 who had produced the agreement for sale before the trial Court also produced the copy of decree passed in a suit for specific performance and permanent injunction filed by defendant in O.S.No.76/1999. The said judgment was produced along with a memo. The appellate Court referring to the title documents, mutations and tax paid receipts was also not inclined to accept the defence set up by the defendant. The appellate Court was of the view that though the agreement set up by the defendant is dated 05.05.1987, the appellate Court held that the plaintiffs are asserting their title based on a registered sale deed 30.11.1996. Therefore, the appellate Court was of the view that no credence can be attached to the agreement of sale in favour of the defendant. The appellate Court therefore also concluded in holding that the plaintiffs have succeeded in proving their possession over the suit property.
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8. The appellate Court declined to entertain the judgment and decree passed in a suit for specific performance filed by the defendant bearing O.S.No.76/1999. While examining its evidentiary value, the appellate Court also held that the judgment and decree passed in O.S.No.76/1999 is not tendered in accordance with law. The said document is not relied upon by way of additional evidence and no leave is sought by invoking the provisions of Order XLI Rule 27 of CPC. The appellate Court therefore proceeded to discard the decree passed in a suit for specific performance. Consequently, the appeal was dismissed. These concurrent findings are under challenge.
9. This Court vide order dated 22.03.2010 has admitted the appeal on the following substantial questions of law:
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1. Whether the First Appellate Court is justified in negating the application under Order XLI Rule 27 of the Code of Civil Procedure, 1908, filed by the appellant seeking to produce the in passed decree judgment and O.S.No.76/1999, wherein the present respondent was a party and who had not contested the suit which was one for specific performance of contract and injunction that was decreed?
2. Whether Appellate Court was justified in holding that the respondent was entitled to the relief of permanent injunction?
10. Heard learned counsel appearing for the appellant/defendant and learned counsel appearing for the respondents/plaintiffs.
11. The learned counsel for the appellant/defendant has vehemently argued and contended that the judgment and decree rendered in a suit for specific performance in O.S.No.76/1999 has attained finality. A similar memo is also placed on 9 record by the learned counsel for the appellant/defendant on 28.11.2022. Along with the memo, the defendant has placed on record the application filed under Order XLI Rule 27 of CPC before the appellate Court, certified copy of the execution proceedings in E.P.No.9/2005 indicating that the sale deed was executed in favour of the defendant based on a decree passed in a suit for specific performance and also certified copy of the sale deed. The next relevant piece of evidence on which defendant is placing heavy reliance is certified copy of the order sheet maintained in unregistered R.A.No.1/2005. Referring to these subsequent events, she would contend that the decree passed in a suit for specific performance, wherein, trial Court has granted relief of specific performance as well as permanent injunction, has attained finality, as the appeal filed by the present plaintiffs was dismissed for 10 default in the year 2007. To buttress her argument, she also relied upon the judgment of the Apex Court in the case of Om Prakash Gupta vs. Ranbir B. Goyal1. Placing reliance on this judgment, she would contend that the appellate Court can take note of subsequent events. She would further contend that subsequent events have direct bearing on the decision that would be rendered by this Court. Referring to these additional documents, she would request this Court to take note of the subsequent events and contend that substantial questions of law formulated by this Court have to be answered in the affirmative and against the plaintiffs.
13. Per contra, learned counsel appearing for the respondents/plaintiffs, however, refuting the arguments canvassed by learned counsel for the appellant/defendant would contend that both the 1 (2002) 2 SCC 256 11 Courts have concurrently held that the plaintiffs are in lawful possession. He would further submit that the said finding is recorded by taking note of the title documents in favour of the plaintiffs. He would further submit that both the Courts have concurrently held that the plaintiffs have succeeded in proving their lawful possession. He would strongly object to take note of the subsequent events. He would contend that the additional documents are not placed on record by invoking the provisions of Order XLI Rule 27 of CPC. Therefore, he would request this Court not to take cognizance of the additional documents. He would conclude his argument by contending that under the garb of subsequent events, the defendant cannot place on record the additional documents. Therefore, he would request this Court to dismiss the appeal by answering substantial questions of law against the defendant.
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14. It would be useful for this Court to advert to the admitted facts of the case. The defendant herein is claiming right over the suit property on the basis of an agreement dated 05.05.1987 while the defendant is asserting title based on sale deed dated 30.11.1996. The memo dated 28.11.2022 filed before this Court clearly indicates that the decree passed in a suit for specific performance i.e., O.S.No.76/1999 has attained finality. While the defendant based on an agreement has succeeded in getting the decree in a suit for specific performance, the present plaintiffs are asserting title from the very same vendor based on a sale deed. It is not in dispute that the present plaintiffs are arrayed as defendant Nos.2 and 3 respectively in a suit for specific performance while the vendor under whom the present plaintiffs and defendant are asserting right is arrayed as defendant No.1.
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15. This Court feels it necessary to cull out the decree passed in a suit for specific performance and permanent injunction, which reads as under:
"1. The suit of the plaintiff is decreed with costs.
2. Defendant Nos.l to 3 are directed to execute the registered sale deed in respect of the suit property jointly in favour of the plaintiff within 2 (Two) Months from the date of this Judgment. If Defendant Nos.l to 3 fails to execute the registered sale deed in respect of the suit property within 2 (Two) Months from the date of this Judgment then plaintiff is at liberty to put this Judgment in execution and get necessary relief as per law.
3. Defendant Nos.I to 3 are restrained permanently from interfering in the peaceful possession and enjoyment of the suit property by the plaintiff."
16. The relief granted in a suit for specific performance would clinch the entire controversy 14 between the parties. The relief granted in a suit for specific performance would also affect the rights of the present plaintiffs. On reading of the operative portion, it is clearly evident that it is not defendant No.1, who is directed by the Court to complete the transaction by executing the sale deed. Though the plaintiffs are the subsequent purchasers, the decree clearly directs even the present plaintiffs, who are arrayed as defendant Nos.2 and 3 to join defendant No.1 and execute the sale deed. Now the consequent relief granted in the suit would also have a direct bearing on the decree that is passed in the present suit for injunction. Apart from granting relief of specific performance in favour of the defendant, the trial Court in the said suit has granted relief of permanent injunction and thereby defendant No.1 - vendor and the present plaintiffs, who are arrayed as defendant Nos.2 and 3 respectively are restrained by 15 perpetual injunction. This decree has attained finality in view of dismissal of unregistered R.A.No.1/2005 for non prosecution on 07.06.2007.
17. The appellate Court has virtually misread the provisions of Order XLI Rule 27 of CPC. The appellate Court was not inclined to look into the decree passed in O.S.No.76/1999 only on the premise that the said document is not tendered by invoking the provisions of Order XLI Rule 27 of CPC, which runs contrary to principles laid down by the Apex Court in the case of Ram Kumar Barnwal vs. Ram Lakhan (Dead)2 and Hukum Chandra (Dead) through Legal representatives vs. Nemi Chand Jain and Others 3. Apex Court while dealing with an identical case relating to subsequent events was of the view that the appellate Court can in a given case take notice of the subsequent events, more particularly, where there is 2 (2007) 5 SCC 660 3 (2019) 13 SCC 363 16 an inter-party litigation and the subsequent events not only shorten the litigation but the litigation can be put to quietus if cognizance is taken.
18. The plaintiffs cannot dispute the decree passed in O.S.No.76/1999. The plaintiffs were parties to the said suit and they have suffered a decree. Moment a relief of specific performance is granted in favour of an agreement holder and while granting such a relief, if the subsequent purchaser is a party, it presupposes that the sale deed secured by the present plaintiffs from common vendor i.e., defendant No.1 stands vitiated. The moment relief of specific performance is granted, the subsequent purchasers even under registered sale deed would lose title over the property in question. In other words, the present plaintiffs on account of decree granted in a suit for specific performance cannot assert title and possession over the suit property. If the plaintiffs 17 cannot place reliance on title documents and if they have also suffered a consequential relief of perpetual injunction in O.S.No.76/1999, then I am of the view that the present plaintiffs are not entitled for a relief of injunction, which is sought in the present suit.
19. The finding recorded by the trial Court in a suit for specific performance in O.S.No.76/1999 on issue No.5 would clinch the entire controversy between the parties. The conduct of the plaintiffs in the present suit, who were defendant Nos.2 and 3 in a suit for specific performance bearing O.S.No.76/1999 is also reflected in the finding recorded by the trial Court on issue No.5. The same is culled out, which reads as under:
"Issue No.5:- In view of the discussion made above I have come to the conclusion that plaintiff proved before the court that defendant No.1 executed agreement of sale as per Ex.P1 in favour of the plaintiff in respect of 18 the suit property after receiving entire sale consideration amount. It is also noticed by the court that defendant No.1 executed registered sale deed in favour of the defendant No.2 & 3 in the year 1996. Since plaintiff is not a party to the registered sale deed executed by defendant No.1 in favour of the dependant No. 2 & 3 in respect of the suit property it is not necessary for him to seek declaration to that effect. Dependant No.2 & 3 could have enquired properly about the title and possession of the defendant No.1 on the date of registered sale deed. Defendant No.2 & 3 fails to take necessary steps before purchasing the suit property in the year 1996. Moreover, in this case defendant No.2 & 3 have abstained themselves from participating in the proceedings of the case. It itself shows that a collusive document is created by defendant No.1 in favour of defendant No.2 & 3 to defeat the rights of the plaintiff over the suit property. Since plaintiff proved before the court that as per Ex.P1 defendant No.1 executed agreement of sale 1n respect of the suit property after receiving sale consideration amount. It is also proved by the plaintiff that he is in possession 19 of the suit property from the date of Ex.P1 agreement of sale to till today. Hence, this Court is of the opinion that plaintiff is entitled for specific performance of the contract. Defendant No.1 to 3 jointly to be directed to execute registered sale deed in respect of the suit property in favour of the plaintiff."
20. On examining the said finding, this Court would find that the present plaintiffs, who are the subsequent purchasers abstained themselves from contesting the suit for specific performance. There is a categorical finding that the sale deed set up by the defendants is a collusive document created by the present plaintiffs and the original owner, who was arrayed as defendant No.1 in the said suit.
21. The suit for specific performance is a comprehensive suit. The rights of agreement holder as well as subsequent purchaser from the common vendor is adjudicated and finally decided in O.S.No.76/1999. Therefore, the present decree 20 granting perpetual injunction in favour of the plaintiffs and against the defendant, who has the benefit of a decree for specific performance and perpetual injunction, prevails over the decree granted in injunction suit simplicitor. The decree granted in the present suit in O.S.No.164/1997 runs contrary to the decree passed in O.S.No.76/1996, which has attained finality. Therefore, the decree for perpetual injunction granted in favour of the plaintiffs, who have suffered a judgment in O.S.No.76/1999 is not at all sustainable. The substantial questions of law formulated by this Court deserve to be answered in the negative and against the plaintiffs.
22. For the foregoing reasons, I proceed to pass the following:
ORDER The second appeal is allowed. The judgment and decree rendered by the appellate Court confirming 21 the judgment and decree passed by the trial Court is set aside. Consequently, the suit is dismissed.
Sd/-
JUDGE Srt