Karnataka High Court
Venkatalakshmamma W/O Chowdareddy vs C S Umadevi W/O Late C R Sampathkumar on 17 September, 2012
Author: N.Kumar
Bench: N. Kumar
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated this the 17th Day of September 2012
BEFORE
THE HON'BLE MR. JUSTICE N. KUMAR
RFA No.548 / 2005
BETWEEN:
Venkatalakshmamma
Aged about 35 years,
W/o Chowdareddy,
D/o. Chinnappa,
R/o Doddadanavahalli
Dinnahalli Post, Masthi
Malur Taluk, Kolar ...Appellant
(By Sri N Manohar, Advocate)
AND:
1. C.S. Umadevi aged about 66 years,
W/o. Late C.R. Sampathkumar,
R/o. Masthi Village, Malur Taluk,
Kolar
2. C.S. Prasanna Kumar,
Aged about 48 years
S/o Late C.R. Sampathkumar,
R/o. Masthi Village, Malur Taluk,
Kolar
2
3. C.S. Shashikumar
Aged about 43 years
S/o Late C.R. Sampathkumar,
R/o. Masthi Village, Malur Taluk,
Kolar
4. C.S. Ravikumar
Aged about 40 years
S/o Late C.R. Sampathkumar,
R/o. Masthi Village, Malur Taluk,
Kolar
5. C.R. Ramanujam
Aged about 30 years
S/o Late C.R. Sampathkumar,
R/o. Masthi Village, Malur Taluk,
Kolar
6. C.R. Venkatesh Iyengar
Aged about 63 years
S/o. Late C. Ramanuja Iyengar,
R/o. Masthi Village, Malur Taluk
Kolar ...Respondents
(By Sri L Harish Kumar, for R-1 to 3, 5 Adv.
Smt. Revathy Adinath Warde HCGP for R7;
R4 & 6 are served)
This RFA filed under Section 96 of CPC against the
judgment and decree dated 7.1.2005 passed in
O.S.No.89/1999 on the file of the Addl. Civil Judge (Sr.Dn.),
Kolar, dismissing the suit for declaration, specific performance
and permanent injunction.
This RFA coming on for hearing this day, the Court
delivered the following:-
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JUDGMENT
This is plaintiff's first appeal against the judgment and decree of the appellate court, which has dismissed the plaintiff's suit for specific performance of the agreement of sale/declaration of the sale deeds executed by defendant Nos.1 to 5 in favour of the 8th defendant as null and void and binding on the plaintiff and for decree of permanent injunction.
2. Parties are referred to as they are referred to in the original suit.
3. The subject matter of the suit is land bearing survey number 66 measuring 4 acres 30 guntas bounded on the East by - Dobi Kakamma's land, West by - Water Channel, North by - Government Thopu and road and South by - Venkateshappa's land situated at Doddadanavahalli Village Masthi Hobli, Malur Taluk ( for short hereinafter referred to as the 'suit property' ).
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4. The case of the plaintiff is that the suit property is a Shanubogue Inamthi land and the katha of the land also stands in the name of Shanubogue Inamthi. One C.R. Sampath umar and 6th defendant CR. Venkatesh Iyengar are brothers. They were in occupation of suit land being the functionaries of the village office. Both of them jointly applied for re-grant of the suit schedule property. Both the brothers were in joint family and later they divided their family property. Both the brothers were doing all the transactions jointly in respect of the joint family properties though there was partition. CR. Sampath Kumar died five years back, i.e. on 18.07.1994 leaving behind defendant Nos.1 to 5 as legal heirs. There were number of properties attached to the family of CR. Sampath Kumar. Many of the properties are also disposed of by them. Both the brothers have jointly executed sale deed in respect of some of the properties. They have also separately executed sale deed for some other properties. As the suit property is Shanubogue Inamthi land, it is yet to be re-granted. Both the brothers executed an agreement of sale on 20.6.1993 in respect of the 5 suit property in favour of the plaintiff and they agreed to sell the property for a sum of Rs.1,50.000/- and they received an advance amount of Rs.75,000/- from the plaintiff on 20.6.1993 before the witnesses of the sale agreement. The plaintiff was in possession of the property earlier to the agreement of sale and thereafter continued to be in possession of the suit property. The plaintiff was a tenant in respect of the suit property under CR. Sampath Kumar during 1973-74. Thereafter continued as a tenant till the date of execution of the agreement on 20.6.1993. Earlier possession of the plaintiff is confirmed in the sale agreement and the RTC of the relevant period also shows the name of the plaintiff and his brother Chikkavenkatappa, who were in joint family during that time. The application in Form 7A was filed for the confirmation of occupancy rights and the said application is pending consideration. The plaintiff's right of tenancy is in abeyance after the execution of the sale agreement dated 20.6.1993. The plaintiffs as also 6th defendant's contention in O.S.No.561/1995 on the file of the learned Civil Judge (Junior 6 Division) at Malur, is that both the brothers have signed in the sale agreement to the effect that they will execute the sale deed to the plaintiff soon after the suit property is re-granted in their favour, by the government. They have agreed to receive the balance sale consideration from the plaintiff at the time of registration of the sale deed. After the execution of the sale agreement the plaintiff has made improvements in the suit property. There are coconut and others trees in the suit property in addition to the mud well. It is a bagayath land. Plaintiff is in actual possession and enjoyment of the suit property in terms of the part performance of the contract of sale. CR. Sampath Kumar was not having good health at the time of his death. He has taken treatment for about one year, earlier to his death including at Madras Hospital. Both the brothers could not have executed registered sale deed to the plaintiff in respect of the suit property, as there was no re- grant in their favour during the lifetime of CR. Sampath Kumar. After the death of CR. Sampath Kumar defendants 1 to 5 who are the legal heirs have turned hostile and they have 7 denied the execution of the sale agreement in favour of the plaintiff. Plaintiff was and is ready and willing to perform his part of the contract. Plaintiff and CR. Sampath Kumar were in good terms. At no point of time CR. Sampath Kumar refused to execute the sale deed to the plaintiff. Defendants 1 to 5 were very well aware of the transaction between the plaintiff and late CR. Sampath Kumar. Defendants 1 to 5 have been misguided by some bad elements and they denied the sale agreement in favour of the plaintiffs. Defendants 1 to 5 have also filed a suit in O.S.No.561/1995 against the plaintiff and others for permanent injunction in respect of the suit property and other three lands. A application for an order of temporary injunction was filed in the said suit. On merits the said application came to be dismissed. Against which defendants 1 to 5 preferred a Misc. Appeal, as it was also dismissed, against these two orders CRP was filed before this Court, wherein this Court passed an order to maintain status quo. Defendants 1 to 5 have failed to prove before the Court that they are in possession of the suit schedule property. Plaintiff has also given a representation 8 before the 7th Defendant - Tahsildar, Malur objecting for re- grant of the land in favour of the defendants 1to 5, as they have refused to execute sale deed to the plaintiff. The 6th defendant who is a co-executant has admitted the execution of the sale agreement dated 20.06.1993 in favour of the plaintiff. Defendants 2 to 5 by misrepresenting facts to the 7th defendant got re-grant of the suit property in their favour by filing a fresh application for re-grant, ignoring the earlier application. Defendants 2 to 5 have denied the right of the 6th defendant in the suit property. Re-grant was made in favour of defendants 2 to 5 by Tahsildar, Malur, vide order dated 15.10.1997. The said order was passed behind the back of the plaintiff without giving any notice to him. The 6th defendant filed an appeal against the order of re-grant in M.A.No.85/1998. The same came to be dismissed directing the 6th defendant to approach the civil court. After re-grant they are trying to dispossess the plaintiff from the suit property. Defendants 2 to 5 have also executed a registered sale deed on 26.03.1999 in favour of one B. Narayanappa. Defendants 1 to 5 and 8 are making efforts to 9 evict the plaintiff from the suit property. Defendant No.8 is trying to get the katha transferred to his name based on the sale deed. Defendants 2 to 5 have no right to execute sale deed in favour of 8th defendant, 8th defendant will not derive any right or title over the suit property through the sale deed dated 26.3.1999. The said sale deed is illegal and void. Plaintiff is ready to pay the balance sale consideration of Rs.75,000/- to get a registered sale deed at his cost. Now that the suit property is re-granted in favour of defendant Nos.2 to 5 they are bound by the sale agreement dated 20.6.1993 executed by their father along with the 6th defendant. The re-grant was made on 15.10.1997 and it was confirmed in M.A.No.85/1998. Subsequently the defendant Nos.2 to 5 have executed the sale deed to the 8th defendant on 26.3.1999, therefore plaintiff was constrained to file a suit for the aforesaid reliefs.
5. After service of summons the defendants entered appearance. The 8th defendant filed a written statement disputing the claim of the plaintiff. He denied the execution of 10 the agreement of sale by Sampath Kumar in favour of the plaintiff. He contended that the signature of Sampath Kumar on the suit agreement is a forged one. The agreement is void under Section 5 of the Karnataka Village Offices Abolition Act, which prohibits sale of inam land. It shall not be alienated within 15 years from 7.8.1978. Therefore, the suit is not maintainable. The 8th defendant has purchased this property after re-grant from defendants 2 to 5. They have not executed the sale deed in favour of the plaintiff. They are not bound by the terms of the suit agreement to which they are not parties. The said agreement is not genuine and legal. All the legal heirs of Sampath Kumar had attained majority on the date of the alleged agreement of sale. They are not joined as parties. The claim of the plaintiff that he is in possession of the suit property even prior to the agreement of sale shows the fraudulent intention of the plaintiff. The coconut trees situated over the suit schedule property are about 20 years old and fruit yielding trees. The plaintiff is not at all in possession of the suit property. The suit is filed on 27.5.1999, the property was 11 sold to this defendant on 26.3.1999, after a lapse of 2 months. It is only after the execution of the sale deed he has concocted the document and filed this suit. Because he has purchased the property he has got a right to get the katha transferred to his name. He is in possession from the date of purchase. Defendants 2 to 5 are the absolute owners. They are not parties to any agreement of sale prior to the sale. They are not bound to execute any sale deed in favour of the plaintiffs. Therefore, he prayed for dismissal of the suit.
6. During the pendency of the proceedings, the plaintiff died and his L.Rs have been brought on record. The plaintiffs in order to substantiate their claim examined Venkatalakshmamma-the daughter of Chinnappa as PW1. They also examined Marappa and Kadhiregowda who are attesting witnesses to the agreement of sale as PWs 2 and 3. A.V.Sathyanarayanarao - the scribe of the Will is examined as PW4. PWs5 and 6 - the adjoining owners of the suit property have been examined. The plaintiffs have produced 18 12 documents which are marked as Exs. P1 to P18. On behalf of the defendants, 6th defendant - C.R. Venkatesh Iyengar was examined as DW1. One witness by name D.R Venkataramanappa was examined as DW2. 8th defendant- B.Narayanappa was examined as DW3. An adjoining owner by name V.Narayanappa was examined as DW4. DW5 - R.Natesh is an official of the Treasury office and DW6 is the stamp vendor who sold the stamps on which the suit agreement is written. Defendants also produced 10 documents which are marked as Exs. D1 to D10.
7. The trial Court on appreciation of the aforesaid oral and documentary evidence on record held that the plaintiff has failed to prove that Late C.R.Sampath Kumar and Venkatesh Iyengar jointly executed an agreement of sale dated 20.6.1993 agreeing to sell the schedule property for a consideration of Rs.1,50,000/- and received a sum of Rs.75,000/- on the date of the agreement of sale. It recorded a categorical finding that the suit agreement is a fabricated 13 document. Though the document is said to be executed on 20.6.1993, the stamp paper on which the agreement is written was purchased in the year 1995, i.e., on 15.5.1995. It also held that the signature of Sampath Kumar on the agreement of sale is not his after comparing the same with the admitted signature at Ex.P16. It also held that the plaintiff is not in possession of the schedule property on the date of the suit or prior to the suit and he has failed to prove that he is the tenant of the property. Plaintiff failed to prove that Sampath Kumar or Venkatesh Iyengar could not execute the sale deed because their application for re-grant was pending. The plaintiffs have not produced any document to show that the suit land is re- granted in favour of defendants 2 to 5 fraudulently. It held the order of re-grant was challenged by the 6th defendant by preferring an appeal which came to be dismissed directing him to approach the Civil Court for working out his remedies. The plaintiff has failed to prove that the 8th defendant is trying to interfere with his possession. The plaintiffs have also failed to prove that defendants 2 to 5 have no right to execute the sale 14 deed in favour of the 8th defendant. Therefore, they held the plaintiff is not entitled to specific performance of the agreement of sale and as he is not possession he is not entitled to a decree for permanent injunction. The 8th defendant has failed to prove that he is a bona fide purchaser for valuable consideration of the suit land. Thus, it dismissed the suit of the plaintiff. Aggrieved by the said judgment and decree of the trial Court, the plaintiffs are in appeal.
8. Learned counsel for the appellants-plaintiffs assailing the impugned judgment and decree of the trial Court contends that 6th defendant who is one of the executants of Ex.P1-the agreement of sale has clearly admitted the execution of the agreement. The finding of the trial Court that the stamp paper was purchased in 1995, though it bears the year 1993, it is not supported by any acceptable evidence. Two attesting witnesses PWs 2 and 3 and scribe of Ex.P1 - PW4 are all examined to prove the due execution of the agreement of sale. Therefore, he submits the finding of the trial Court that the 15 execution of the agreement is not proved is erroneous. He further submitted that as the land in question was a shanbogue inamthi land it was vested with the Government. Both the brothers had filed application for re-grant. As the re- grant application was pending they could not have executed a sale deed in favour of the plaintiff. Therefore, they executed the agreement of sale undertaking to execute the sale deed after re-grant. Unfortunately, Sampath Kumar died. Thereafter, his children filed separate application for re-grant, got the order of re-grant in their favour, behind the back of the plaintiff. Therefore, the said order does not confer any title on them. As the agreement of sale is proved, plaintiff was ready and willing to perform his part of the contract and now that the re-grant order has been passed it enures to the benefit of the plaintiff and therefore the trial Court ought to have decreed the suit of the plaintiff for specific performance. Therefore, he submits a case for interference is made out.
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9. Per contra, learned counsel appearing for the defendants 2 to 5 submits that, the evidence of DWs 5 and 6 make it very clear that the stamp paper was purchased in the year 1995, whereas the agreement is said to have been executed in the year 1993. Therefore, it is clear that the suit agreement has come into existence after the death of Sampath Kumar on 18.7.1994 and rightly the trial Court held that it is a fabricated one. Yet another circumstance which justifies the said finding is the signature found in Ex.P1 being a forged one which is clear when compared with Ex.P16 - the admitted signature of Sampath Kumar. The case of the plaintiff is that he is in possession of the property from 1973-74. The RTC extracts produced do not substantiate the said contention. In fact, in the objections filed for opposing the transfer of katha as well as the application filed in Form No. 7A there is no mention of he being in possession from 1973-74 as a tenant. After the re-grant in favour of the children of Sampath Kumar, the 8th defendant has purchased the property which is legal and valid. The sale deeds produced in the case which are 17 executed by Venkatesh Iyengar clearly demonstrate that between the brothers there was a partition. In the said partition, the suit property has fallen to the share of Sampath Kumar. Therefore, Venkatesh Iyengar had no right to execute any agreement of sale in respect of a suit property which does not belong to him. Obviously he has colluded with the plaintiff. Therefore, he submits seen from any angle the judgment and decree passed by the trial Court is valid and legal and do not call for any interference.
10. In the light of the aforesaid facts and the rival contentions, the points that arise for consideration in this first appeal is as under:-
(1) Whether the finding of the trial Court that the suit document is fabricated one, calls for interference? (2) Whether the finding of the trial Court that the plaintiff is not in possession much less as a tenant is erroneous as contended by the appellant? 18 (3) Whether the suit agreement is void as contended by the defendants?
11. The Apex Court in the case of TAIBAI vs ANNASAHEB GOUDAPPA PATIL [1996 (6) Kar.L.J. 594] referred to said section and held as under:-
Section 5(6) of the Karnataka Village Offices Abolition Act, 1961 which was introduced by way of amendment, by Act 13/1978 which came into effect from 7.8.1978 reads as under:
"Notwithstanding anything contained in any law for the time being in force any agreement for transfer of land resumed under clause (3) of Section 4, entered into prior to regrant thereof under sub-section (1), shall be null and void and any person in possession thereof in furtherance of such agreement shall be summarily evicted therefrom by the Deputy Commissioner".19
There is, therefore, a clear bar on any agreement for transfer of land being made by the prospective patta holder prior to regrant. Section 5(6) provides that if any such agreement is entered into, it shall be null and void and any person in possession in pursuance of such an agreement is liable to be summarily evicted as provided therein. The agreement of sale, therefore, which was entered into at the time when the seller did not have any title to the land, will have no legal effect nor the provisions of Section 53-A of the Transfer of Property Act be attracted in such a case."
12. The effect of the aforesaid provision is the agreement is void. In other words there is no contract in the eye of law. What could be specifically enforced is a valid contract. A void agreement cannot be construed as a contract and question of enforcing specific performance of the said agreement would not arise. The facts are not in dispute. The suit land is a shanbogue inamthi land. It vested with the Government on the passing of the said Act abolishing this 20 Village Office. Admittedly, on the day the agreement of sale came into existence there was no re-grant. Therefore, on the date the suit agreement came into existence, i.e., on 20.6.1993 the executants of the agreement of sale had no right in the property as the land vested with the Government. In view of the aforesaid provision, which is brought into effect from 1978, the agreement of sale is void ab initio. It is unenforceable. A person who is put in possession in pursuance of such void agreement is liable to be evicted summarily. This is precisely what the trial Court has held. It is in conformity with the law declared by the Apex Court and also the aforesaid statutory provisions, which cannot be found fault with.
13. The material on record shows Sampath Kumar and Venkatesh Iyengar, the brothers, who constituted a joint family effected a partition of all the joint family properties. The sale deeds produced in the case shows both of them have executed the sale deeds in respect of the properties which have fallen to their share. The material on record also discloses that there 21 are a number of litigations between them. In other words, the relationship was very much strained. The fact that the suit land was re-granted in favour of the wife and children of Sampath Kumar shows that the claim of Venkatesh Iyengar was rejected by the authorities based on the partition. Aggrieved by the same he preferred an appeal. Appeal also came to be dismissed, however reserving liberty to Venkatesh Iyengar to approach a competent Civil Court and if he is able to show that it is a joint family property, he could have sought for partition. This material clearly shows that Venkatesh Iyengar had no right in the suit property. It exclusively belongs to Sampath Kumar and Sampath Kumar was a divided brother to whose share the property fell at the partition. Therefore, both the brothers executing an agreement of sale in favour of the plaintiff on 20.6.1993 would not arise as by that time the brothers were at loggerheads and they were fighting litigations before the Courts.
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14. The evidence of DWs 5 and 6 shows that all is not well. If their evidence is to be believed, as believed by the trial Court the stamp paper on which the suit agreement is written was purchased on 15.5.1995 after the death of Sampath Kumar on 18.7.1994 and the agreement is ante dated as 20.6.1993. Their evidence is supported by the documents which they have produced from the Treasury which is maintained in the regular course of business. When the trial Court on appreciation of the aforesaid legal evidence has recorded a finding that the documents were purchased in 1995 after the death of Sampath Kumar and thereafter agreement is written ante dated, I do not find any justification to interfere with the said question of fact which is based on legal evidence.
15. Yet another factor which prevailed upon the trial Court was the signature of Sampath Kumar. The signature of Sampath Kumar is specifically denied in the written statement. Ex.P16 is a sale deed executed by Sampath Kumar during his lifetime in respect of some other properties. There we have the 23 signature of Sampath Kumar in English which is not in dispute. A bare comparison of the said signature with the suit agreement makes it clear that the signature on the suit agreement is a fabrication. It is these factors which weighed in the minds of the Court to come to the conclusion that the suit agreement is void, fabricated and it is not executed. In the light of this evidence, the evidence of PWs 2 and 3 goes to the background. Similarly, the evidence of PW-4 scribe. The trial Court which had the advantage of watching the demeanor of these witnesses has scanned through the evidence of the witnesses and has pointed out the discrepancies in their stand and rightly declined to act on the evidence. In the light of the documentary evidence which has come into existence at an undisputed point of time, the approach of the trial Court in the matter of appreciation of both the oral and documentary evidence cannot be found fault with.
16. Yet another circumstance which weighed with the trial Court was the plaintiff contended that he was in 24 occupation of the schedule property even prior to the date of the agreement of sale, i.e., from 1973-74 as a tenant. If really he was a tenant, nothing prevented him from producing evidence to substantiate the said contention. On the contrary, the defendants have produced RTC from the year 1965-66. Plaintiff's name does not figure even for a year. One Munivenkatappa was cultivating the land and the name of Venkatappa referred to therein refers to his brother. That was not the case pleaded by the plaintiff. Strangely, he filed an application in Form No.7A on 18.2.1999 few days prior to the filing of the suit. In the said application it is mentioned that he is in possession since 30 years. If really he was in possession for 30 years and he was seeking re-grant under Form 7-A under the Land Reforms Act he would have very well filed an application in Form No. 7 seeking occupancy rights which he has not done. He filed an application before the revenue authorities objecting to the katha made out in the name of the 8th defendant. In the entire statement of objections nowhere he has stated that he is in joint possession of the property much 25 less as a tenant and therefore katha should not have been effected. It is these factors which are borne out from the record, which are produced by the plaintiff himself. The trial Court rightly came to the conclusion that the plaintiff has failed to prove that he is in possession of the property at any point of time and therefore his case of tenancy and being in possession under the agreement of sale is not established. On the contrary, the evidence on record shows after the death of Sampath Kumar the suit land has been re-granted in favour of defendants 2 to 5, they in turn after re-grant has sold the property to the 8th defendant, katha has been made out in his name, RTC has been entered in his name, he is in possession of the same, he is improving the same. It only appears after the sale, in order to deprive him of the benefit of the sale deed, the suit agreement has been fabricated, suit is filed to harass him. It was contended that Venkatesh Iyengar, another executant has admitted the execution of the agreement of sale. Therefore, it is a clear case of collusion as, as stated above Venkatesh Iyengar was not in good terms with Sampath 26 Kumar. Venkatesh Iyengar had no right to the suit property. It is not a property which has fallen to his share nor is it a property enjoyed by them jointly. Therefore, the so-called admission that he and his brother have executed the agreement does not in any way support the case of the plaintiff. On the contrary it shows collusion between the plaintiff and the 6th defendant which rightly the trial Court has pointed out and refused to act on his evidence.
17. In the light of the aforesaid discussion, I do not find any justification to interfere with the well-considered order passed by the Tribunal. The appeal is devoid of merits and it is dismissed.
Sd/-
JUDGE Ng/ckl/-