Karnataka High Court
Sri Gangadharaswamy vs Sri P Kumar on 18 February, 2014
Author: Ashok B.Hinchigeri
Bench: Ashok B. Hinchigeri
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 18TH DAY OF FEBRUARY 2014
BEFORE
THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI
R.F.A.No.1409 OF 2013 (RES)
C/W.
R.F.A.No.1487 OF 2013
R.F.A.No.1409/2013
BETWEEN:
Sri Gangadharaswamy,
S/o Late S.Mayanna,
Aged about 63 years,
R/at No.81/3, 4th Cross,
Srirampuram, Bangalore - 560 021. ... Appellant
(By Sri Nagaraja S, Advocate)
AND:
1. Sri P.Kumar,
S/o Palani Mudaliar,
Aged about 48 years,
R/at A-120-B, 16/1, 5th Cross,
7th Main Road, Lakshminarayana Puram,
Bangalore - 560 021.
2. Sri Mayanna,
S/o Late S.Mayanna,
Aged about 62 years,
R/at No.81/3, 4th Cross,
2
Srirampuram,
Bangalore - 560 021.
(R-2 deleted vide Court order, dated 23.1.14)
3. Smt.M.Manjula Devi,
D/o Mayanna,
Aged about 39 years.
4. Smt.M.Anupama,
D/o Mayanna,
Aged about 35 years.
5. Sri M.Anil Kumar,
S/o Mayanna,
Aged about 31 years.
6. Sri M.Arun Kumar,
S/o Mayanna,
Aged about 29 years.
(R-6 deleted vide court order, dated 28.12014)
Respondents No.3 to 6 are
R/at No.81/3, 4th Cross,
Srirampuram,
Bangalore - 560 021. ... Respondents
(By Sri T.N.Arakeshwara, Advocate for C/R1;
Sri K.S.Bheemaiah, Advocate for R3 to R5;
R2 and R6 are deleted)
This RFA is filed under Section 96 CPC, against the
judgment and decree dated 24.8.2013 passed in
Ex.No.434/2008 on the file of XXV-Addl.City Civil Judge,
Bengaluru, allowing I.A.No.12 filed U/O-21, Rule-97, R/W
Sec.41 of CPC and etc.
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R.F.A.No.1487/2013
BETWEEN:
1. Dr.Manjula Devi,
D/o Sri Mayanna,
Aged about 39 years.
2. Dr.M.Anupama
D/o Sri Mayanna,
Aged about 35 years.
3. Sri M.Anil Kumar,
S/o Sri Mayanna,
Aged about 31 years
Appellant No.1 to 3 are
R/at No.81/3, 4th Cross,
Srirampuram,
Bangalore - 560 021. ... Appellants
(By Sri K.S.Bheemaiah, Advocate)
AND:
1. P.Kumar,
S/o Palani Mudaliar,
Aged about 48 years,
R/at A-120-B, 16/1, 5th Cross,
7th Main Road, Lakshminarayana Puram,
Bangalore - 560 021.
2. Sri Mayanna,
S/o Late S.Mayanna,
Aged about 62 years,
R/at No.81/3, 4th Cross,
Srirampuram, Bangalore - 560 021.
(R2 deleted vide order dated 28.1.14)
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3. Sri Gangadharaswamy,
S/o Late S.Mayanna,
Aged about 64 years,
R/at No.81/3, 4th Cross,
Srirampuram,
Bangalore - 560 021.
4. Sri M.Arun Kumar,
S/o Mayanna,
Aged about 29 years,
No.81/3, 4th Cross,
Srirampuram,
Bangalore - 560 021.
(R4 deleted vide court order, dated 28.1.2014)
... Respondents
(By Sri T.N.Arakeshwara, Advocate for R1;
Sri S.Nagaraja, Advocate for R3;
R2 and R4 are deleted)
This RFA is filed under Section 96 CPC, against the
judgment and decree dated 24.8.2013 passed in IA No.12 in
Ex.No.434/2008 on the file of XXV-Addl.City Civil Judge and
Session Judge, Bangalore, allowing the I.A.No.12 filed U/O-
21, Rule-97, R/W Sec.41 of CPC and etc.
These RFAs, coming on for dictation, this day, the Court
delivered the following:
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JUDGMENT
These appeals are directed against the common order passed by the Execution Court (Court of the XXV Additional City Civil Judge), Bangalore on I.A.Nos.12 and 18 to 20 in Execution Case No.434/2008.
2. The facts of the case in brief are that the first respondent in both the appeals purchased the execution petition schedule property from Sri Mayanna (respondent No.2 in both the appeals) by a registered sale deed, dated 5.4.2006. The respondent No.2 had taken three months' time to vacate the execution petition schedule property and hand over its vacant possession to the respondent No.1. As the respondent No.2 did not keep up his promise, the respondent No.1 filed O.S.No.10179/2006 against the respondent No.2 seeking a direction to the respondent No.2 to hand over the vacant possession and to pay the damages at the rate of `5,000/- per month from the date of the suit till he vacates. The respondent No.2 remained exparte. The Trial Court decreed the said suit directing the respondent No.2 to vacate 6 the schedule property and hand over its vacant possession to the respondent No.1 within three months. The respondent No.1 filed Execution Petition No.434/2008. In the said execution proceedings, he has also filed I.A.No.12 invoking Order 21 Rule 97 for issuing the delivery warrant after noticing the obstruction of some persons. The grievance of the respondent No.1 in the execution proceedings is that the respondent No.2 has set up his children and elder brother to resist the dispossession. The children and elder brother of the respondent No.2 filed two separate applications - I.A.No.3 and 8 invoking Order 21 Rule 58 of CPC. They contended that they were deliberately not made parties to O.S.No.10179/06. They contended that the respondent No.2 is neither the absolute owner nor the exclusive possessor of the suit schedule property. They claimed that the suit schedule property belongs to their joint family. They also claimed that they have contributed the amounts towards the sale consideration of the property in question. Their I.A.Nos.3 and 8 were allowed by the Execution Court, by its order, dated 7 27.11.2008. However, the said orders were set aside by this Court, by its order, dated 4.11.2010 passed in W.P.Nos.31522/2009 and 33563/2009 filed by the first respondent. The matter was remitted back to the Execution Court to pass appropriate orders after affording opportunities to the parties. Thereafter, the decree-holder filed I.A.No.12 and the obstructors filed the objections separately. The obstructors also filed I.A.No.18 seeking the permission to lead further evidence, I.A.No.19 to re-open the case and I.A.No.20 for the production of documents.
3. On the rival contentions raised, the Execution Court formulated the following points for its consideration:
1. Whether Decree Holder proves the obstruction and resistance of the objectors without having valid right?
2. Whether I.A.No.18 requires to be allowed?
3. Whether I.A.No.19 and 20 require to be allowed?
4. What order?8
4. The Execution Court answered point No.1 in the affirmative and point Nos.2 and 3 in the negative and allowed I.A.No.12 and rejected I.A.Nos.18 to 20. The Execution Court turned down the said three I.A.s as frivolous and deliberately filed to protract the proceedings.
5. Aggrieved by the aforesaid order, the obstructor No.5 has filed R.F.A.No.1409/13 and obstructor Nos.1 to 3 have filed R.F.A.No.1487/13.
6. Sri S.Nagaraja, the learned counsel for the appellant in R.F.A.No.1409/2013 submits that the respondent No.1 is not a bonafide purchaser at all. The appellant had sent the letter, dated 21.12.2005 (Ex.D9) to the first respondent not to buy the execution petition schedule properties from Sri Mayanna, the respondent No.2 herein, as the same is the joint family property of the appellant and of the respondent Nos. 2 to 6. He submits that the postal acknowledgement for receiving the letter at Ex.D9 by the first respondent is produced as Ex.D2. Similar letter also came to be sent by the 9 third respondent Manjula Devi. The postal acknowledgement issued by the first respondent for having received the said letter from the third respondent is at Ex.D2. Despite all these, the first respondent went ahead and got the sale deed executed by the respondent No.2 on 05.04.2006.
7. Sri Nagaraj submits that the respondent Nos.3, 4, 5 and 6 filed the partition suit in O.S.No.4346/2006 against the respondent No.2, appellant and the first respondent in respect of the execution petition schedule property. The first respondent was served with the notice in the said partition suit proceedings. He filed the written statement on 13.11.2006. Within eight days of the filing of the written statement, he filed the suit for the recovery of the possession against the second respondent. The learned counsel submits that the first respondent has not made any whisper of the pendency of the partition suit. Further, he has not made all the parties to the partition suit as parties to his suit for the recovery of possession.
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8. The learned counsel extensively read out the cross- examination of the respondent No.1 (PW1). He submits that PW1 has admitted that the second respondent and all his family members were the customers of his pharmacy. He submits that the first respondent has admitted that the obstructors were also in possession of the execution petition schedule property. He pointedly brings to my notice what PW1 has stated in the course of his cross-examination. "In the sale deed it is not mentioned when JDR will be vacating the schedule property. He had executed an agreement stating as to when he would vacate. I am having with me that agreement. There is no difficulty for me to produce it to the Court. After 10 or 15 days of the agreement this sale deed was executed." But the respondent No.1 has withheld the said agreement from the Court.
9. On knowing fully well that the execution petition schedule property is a joint family property of the second respondent Mayanna and his family members and further knowing fully well that Mayanna, his wife and children and 11 his brother Gangadahra Swamy are residing in the property in question, the first respondent purchased the property only from Mayanna and filed the suit only against Mayanna.
10. The learned counsel also submits that under Order XXI Rule 104 of CPC, the order to be passed under Rule 101 or 103 of the said order has to be subject to the result of the pending suit. But in the case on hand, this has not been done by the Execution Court.
11. In support of his submissions, he relies on this Court's decision in the case of GOWRAMMA vs. MUNIVENKATAMMA reported in 2003 (2) KCCR 1363, wherein it is held that if there are pending litigations between the parties even prior to the filing of the applications under Order XXI Rule 97 of CPC, the outcome of the order that may be passed on such applications is subject to the outcome of the pending litigation between the parties.
12. Lastly, the learned counsel has the grievance that the arguments on behalf of the appellant on I.A.No.12 were 12 not concluded at all. He submits that in the course of the arguments, I.A.No.18 for permission to lead further evidence, I.A.No.19 for reopening the case and I.A.No.20 for permission to produce the additional documents were filed. He submits that on behalf of the appellant's side, the arguments were concluded only on I.A.Nos.18, 19 and 20. While the appellant was hoping to invite the order only on I.A.Nos.18, 19 and 20, the Execution Court passes the order not only on I.A.Nos. 18, 19 and 20, but also on I.A.No.12.
13. Sri K.S.Bheemaiah, the learned counsel for the appellant in R.F.A.No.1487/2013 makes the submissions akin to the submissions made by Sri Nagaraja S. He submits that the execution petition schedule property is the joint family property. Mayanna is not its absolute or exclusive owner. He submits that the Trial Court has erred by not treating the I.A.s in question as the suit proceedings. He submits that the Execution Court has committed an apparent error. The obstructing applications are to be treated, as if they 13 are the title-suits by affording every possible opportunity to the obstructors.
14. The learned counsel submits that Mayanna had earlier entered into a sale agreement with Muniyappa. On coming to know that Mayanna did not have a clear title and as other co-owners of the execution petition schedule property were not ready to sell it, he got the sale agreement cancelled. He submits that Mayanna had illicit relationship with another woman and that he does not reside in the execution petition schedule property with his wife. Sometimes he resides with his wife and sometimes with the woman with whom he has illicit relationship.
15. Sri T.N.Arakeshwara, the learned counsel for the respondent No.1 (decree holder) in both the appeals submits that merely because a notice is sent by Mayanna's children and his brother, it cannot be said that Mayanna does not have a clear title. On verifying the documents, the first 14 respondent has satisfied himself that Mayanna had clear marketable title to the execution petition schedule property.
16. The learned counsel submits that Mayanna purchased the execution petition schedule property from Yogananda by a registered sale deed, dated 10.03.1983 paying the consideration of `49,000/-. He submits that the second respondent mobilizes the funds by availing of the financial assistance from the Canara Bank where he was working. He submits that Sri Yogananda is an independent party and is not related to the family of Mayanna in any way. He submits that the first respondent got the khatha mutated in his favour in April, 2006. He submits that the first respondent has been paying the property tax in respect of the execution petition schedule property. He submits that the first respondent availed of the financial assistance and paid the sale consideration of `12,99,000/-.
17. He submits that Ex.P7 is a concocted document. He submits that no documents, whatsoever are produced to 15 show that the execution petition schedule property is the joint family property. Nobody has contributed any amount towards the purchase of the property by the first respondent's vendor, namely, Mayanna.
18. He submits that there is no agreement regarding the handing over of the possession. As the first respondent and his vendor knew each other very well, the first respondent heeded to the request of Mayanna for vacating and handing over the vacant possession within three months from the date of the execution of the sale deed. He submits that Mayanna's daughter, Dr.Manjula Devi has agreed in the course of her cross-examination that the execution petition schedule property is the self-acquired property of Mayanna.
19. The learned counsel submits that the order under appeal is a decree, which should act as res judicata between the parties in the partition suit in O.S.No.4346/2006.
20. On being asked as to why the first respondent has not disclosed the pendency of the partition suit, the learned 16 counsel submits that the first respondent was not aware of the pendency of the partition suit. He submits that he was not yet served with the notice of the said suit proceedings.
21. In the course of rejoinder, Sri Nagaraja S submits that the sale agreement between Mayanna and his vendor Yogananda shows the sale consideration as `75,125/- and that the Canara Bank has given the financial assistance for only `49,000/-. The balance amount (`75,125/- minus `49,000/-) is paid in cash by the obstructors. The same is admitted by the decree holder in the course of his cross- examination. He submits that the Execution Court has not framed any issues on the title.
22. The first question that falls for my consideration is whether the order under appeal meets the requirement of Rule 104 of Order XXI of CPC. The said provisions read as follows:
"104.Order under rule 101 or rule 103 to be subject to the result or pending suit.- Every order made under rule 101 or rule 103 shall be subject to the 17 result of any suit that may be pending on the date of commencement of the proceeding in which such order is made, if in such suit the party against whom the order under rule 101 or rule 103 is made has sought to establish a right which he claims to the present possession of the property."
23. The filing of the partition suit in O.S.No.4346/2006 is earlier in point of time. It is filed even before the respondent No.1 filed the suit (O.S.No.10179/2006) against the respondent No.2 for the recovery of possession. Therefore, the pending partition suit is required to be protected. In taking this view, I am fortified by the Division Bench judgment of Calcutta High Court in the case of SMT. MIRA CHATTERJEE v. SUNIL KUMAR CHATTERJEE reported in AIR 1998 CALCUTTA 333. The argument urged on behalf of the respondent No.1 that the impugned order would act as res judicata between the parties in O.S.No.4346/2006 runs contrary to the provisions contained in Rule 104.
24. The second question that falls for my consideration is whether the Execution Court has taken into account the 18 circumstances of the case and applied its mind to the various documents placed on its record. A glance at the first respondent's written statement in the partition suit (O.S.No.4346/2006), which is produced and marked as Ex.D5 in the execution proceedings, shows that it was filed on 13.1.2006. One week thereafter, the respondent No.1 files O.S.No.10179/2006 for the recovery of possession. In his plaint, there is no whisper of the partition suit. Besides it is not known why the obstructors were not made parties to the first respondent's O.S.No.10179/2006 for the recovery of possession. It is all the more so when it cannot be said that the respondent No.2 alone was staying in the execution petition schedule property or that those who lived therein claim only under him. The Execution Court has observed that it is pertinent to note that except Ex.D12, the obstructors have not produced any documents to show that they are residing jointly. Ex.D11 and Ex.D12 are the election identity cards, which show that obstructor Nos.1, 2, 3 and 4 have been residing in the execution petition schedule property. I 19 am afraid the circumstances and the materials have not been considered by the Execution Court in their proper perspective.
25. The third question is whether the respondent No.1 has placed the clinching material for the enforcement of the possession decree notwithstanding the resistance of the obstructors. The obstructors have sent the letters (Ex.D9) to the respondent No.1 not to buy the execution petition schedule property. The evidence of the respondent No.1 (PW1) does not throw any light as to what steps he took on receiving the said letters. How he has satisfied himself that the respondent No.2 is the absolute owner of the execution petition schedule property is not forthcoming from his evidence.
26. Similarly, the obstructors have not placed any material on record to show as to how they raised and paid the balance amounts of `29,125/- (`78,125 minus `49,000) to Yogananda. The obstructors have not examined Yogananda or 20 any independent witnesses. They have also not conclusively shown that they have some recognizable interest in the property in question. They have not produced any document to show that they got the execution petition schedule property renovated at their cost.
27. The last question that is required to be examined by me is whether the Execution Court is justified in rejecting I.A.Nos.18 to 20. My perusal of the impugned order shows that they were mainly rejected on the ground of delay. The obstructors sought to produce them belatedly. I also notice with concern that there is no averment in the affidavit filed in support of I.A.No.20 that they could not produce them on time despite the exercise of due diligence.
28. No explanation whatsoever is forthcoming as to why they were not produced before the commencement of evidence. The obstructors are not in a position to explain the relevance of the documents sought to be produced with I.A.No.20. As I.A.No.20 was liable to be dismissed, I.A.Nos.18 21 and 19 are also turned down by the Execution Court. I am therefore not persuaded to take a different view and thereby allow I.A.Nos.18, 19 and 20. The rejection of I.A.Nos.18, 19 and 20 is upheld.
29. Thus, (a) as the order under appeal does not withstand the scrutiny of law, as it contains no rider to the effect that the execution of the decree for possession is subject to the outcome of the partition suit (b) as the obstructors have already put the respondent No.1 on notice to the effect that he should not purchase the property and as the respondent No.1 has not shown how he has further satisfied himself of the title of the respondent No.2 on receiving the said notice (c) as the circumstances of the case and some documents, like Ex.D11 and Ex.D12 have not been considered in their proper perspective, the matter has to go back to the Execution Court for fresh enquiry.
30. The parties are directed to appear before the Execution Court on 10.3.2014 without waiting for any notice 22 from it. They shall co-operate with the Execution Court in the speedy conclusion of the enquiry. The Execution Court is directed to dispose of the remanded matter as expeditiously as possible and within two months from 10.3.2014.
31. Liberty is reserved to the parties to adduce additional/further evidence. If any of the parties are desirous of filing an application for the production of additional documents, he can do so but by filing proper supporting affidavit. Needless to observe that if they are not accompanied by proper affidavit, such I.A.s are liable to be dismissed only. If such I.A.s are filed, they shall be considered in accordance with law and uninfluenced by the Execution Court's order, dated 24.8.2013 rejecting I.A.Nos.18 to 20 and its upholding in this appeal.
32. On holding the enquiry, if the Execution Court comes to the conclusion that the obstructors' resistance is untenable, it may make an order accordingly and have the possession delivered to the first respondent but by making it 23 clear that the execution of the possession decree shall be subject to the outcome of the partition suit in O.S.No.4346/2006.
33. No order as to costs.
Sd/-
JUDGE Cm/MD