Karnataka High Court
C Nagaveni vs S A Babu Reddy on 21 March, 2017
Author: B.Veerappa
Bench: B. Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF MARCH, 2017
BEFORE
THE HON' BLE MR. JUSTICE B. VEERAPPA
MISCELLANEOUS FIRST APPEAL No.2006/2017(CPC)
BETWEEN:
C. NAGAVENI,
AGED 52 YEARS,
W/O MUNIREDDY,
RESIDING AT PARAPPANA AGRAHARA VILLAGE,
HONGASANDRA GRAMA PANCHAYAT,
BEGUR HOBLI, BANGALORE SOUTH TALUK.
... APPELLANT
(BY SRI D. S. RAMACHANDRA REDDY, ADVOCATE)
AND:
1. S. A. BABU REDDY,
AGED ABOUT 60 YEARS,
S/O S.P.ANNAIAH REDDY,
RESIDING AT SUDDAGUNTE PALYA,
DHARMARAM COLLEGE POST,
BANGALORE - 560 029.
2. GOPAL REDDY,
AGED 61 YEARS,
S/O PAPAREDDY,
NO.16/1, 1ST CROSS, 1ST MAIN,
MARUTHINAGAR, MADIWALA,
BANGALORE - 560 068.
3. RAMASWAMY REDDY,
AGED ABOUT 66 YEARS,
S/O BHADRA REDDY,
NARAYANAGHATTA VILLAGE,
SARJAPURA HOBLI,
ANEKAL TALUK, BANGALORE DISTRICT.
... RESPONDENTS
2
(BY SRI Y.R. SADASHIVA REDDY, SENIOR COUNSEL FOR
SRI DEEPAK J., ADVOCATE FOR R1;
NOTICE TO R2 AND R3 ARE DISPENSED WITH)
.....
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED
30.02.2017 PASSED ON I.A.NO.2 IN O.S.NO.3666/2016 ON THE
FILE OF THE XX ADDITIONAL CITY CIVIL & SESSIONS JUDGE,
BANGALORE, ALLOWING I.A.NO.2 FILED UNDER ORDER 39
RULE 1 & 2 OF CPC.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
ORDER
The first defendant in O.S.No.3666/2016 on the file of the XX Addl. City Civil and Sessions Judge, Bengaluru City, has preferred the above Miscellaneous First Appeal against the order dated 03.02.2017 allowing I.A.No.2 filed under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure.
2. The first respondent/plaintiff filed suit in O.S.No. 3666/2016 on the file of the XX Addl. City Civil and Sessions Judge, Bengaluru, for permanent injunction restraining the defendants either from interfering with 3 the peaceful possession or from putting up any construction on any part of the suit schedule property contending that the plaintiff entered into an agreement on 05.12.1993 to purchase Sy.No.15 measuring 2 acres 4 guntas of land including 1 gunta of karab and Sy.No.68/1 measuring 34 guntas in all measuring 2 acres 38 guntas situated at Parappana Agrahara village, Begur Hobli, Bengaluru South Taluk and paid full sale price and was put in possession of the property. As the owner did not execute the sale deed, plaintiff filed suit in O.S.No.1748/2004. In the said suit, the appellant herein was the 10th defendant who purchased site bearing House list No.18 situated at Hongasandra Group Panchayath, Begur Hobli, measuring 30 ft. x 90 ft. It was further contended that the land claimed by the appellant herein in not part and parcel of the suit schedule property and it is a revenue land which is neither converted nor is within gramatana. In the said suit the appellant herein claimed that the property 4 having house list No.18 is not part of the suit schedule property which is entirely different property, hence the plaintiff agreed that he would not claim the property purchased by the appellant herein/first defendant, etc.
3. The first defendant filed written statement, denied the plaint averments and specifically contended that the owners of Sy.Nos.15 and 68/1 of Parappana Agrahara village, Begur Hobli, Bengaluru South Taluk, agreed to sell two sites bearing Nos.5 and 18 carved out of the said survey numbers by an agreement of sale dated 19.12.1987 in favour of the husband of the first defendant or his nominee. Pursuant to the said agreement, a sale deed was executed by the owners of the said survey numbers Sri K.L.Ananda Reddy and Sri Munireddy in favour of the first defendant by registered sale deed dated 07.09.1992 and the first defendant was put in possession of the property on which she has constructed a house measuring 10' x 10' and also 5 obtained electricity connection and she has been paying tax to the BBMP in respect of the said site continuously. At the time of execution of the sale deed site Nos.5 and 18 measuring 30' x 50' and 30' x 40' respectively were amalgamated into one site measuring 30' x 90' and khatha No.18 was given as is evident from the sale deed. It was further contended that the plaintiff/ first respondent herein filed O.S.No.1748/2004 alleging that an agreement to sell the land in Sy.Nos.15 and 68/1 of Parappana Agrahara was executed by the owners in the year 1993 and therefore, prayed for specific performance of the contract. The sites purchased by the first defendant were part of the said survey numbers which were subject matter of suit in O.S.No.1748/2004. The first defendant was not made a party to the said suit. Therefore, first defendant filed an application for impleading in the said suit which was rejected. Aggrieved by the same, the first defendant approached this Court in W.P.No.29089/2010 which was allowed 6 permitting the first defendant to come on record as tenth defendant. Thereafter, the defendant No.10 filed written statement in the original suit. After contest, the suit came to be decreed on 01.10.2011 and in para 4 of the judgment, the Court proceeded to note the objection and contention of the first defendant. In para 7 of the judgment, the Court noted that the plaintiff in the present suit who was plaintiff in O.S. No. 1748/2004 and defendant No.1 in the present suit who was defendant No.10 in the earlier suit entered into a compromise and filed joint compromise petition on 09.08.2011. In para 14 of the judgment while answering issues 5 and 6 and additional issue, the Court had come to a definite and clear conclusion that the first defendant in the present suit and defendant No.10 in the earlier suit is the absolute owner of the site purchased by her in the sale deed dated 07.09.1992 as admitted by the plaintiff himself. It was also contended that the suit filed by the plaintiff is barred by res 7 judicata. It was further contended that suppressing all these material facts, plaintiff filed the present suit and plaintiff has not approached the Court with clean hands and therefore, sought for dismissal of the suit.
4. During pendency of the proceeding, plaintiff also filed I.A.No.2 for temporary injunction reiterating the plaint averments. The application was resisted by the present appellant who is the first defendant, by filing objections.
5. The Trial Court, considering the entire material on record, by the impugned order dated 03.02.2017, allowed the application and granted an order of permanent injunction. Hence the present appeal is filed.
6. I have heard the learned counsel for the parties to the lis.
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7. Sri D.S. Ramachandra Reddy, learned counsel for the appellant vehemently contended that the impugned order passed by the trial Court is erroneous and contrary to the material on record. He further contended that the appellant purchased a site in khatha No.18 measuring 30 feet x 90 feet formed out of survey numbers 15 and 68/1 situated at Parappana Agrahara village, Begur hobli, Anekal taluk under the registered sale deed dated 7.9.1992 from the original owners - Mr. K.N. Ananda Reddy and Muni Reddy. Though O.S. No.1748/2004 was filed by the 1st respondent against the vendors of the appellant and others alleging that there was an agreement to sell in his favour dated 5.2.1993 in respect of the land in Sy. Nos.15 and 68/1 to an extent of 2 acres 38 guntas, the appellant was not impleaded in the said suit. Subsequently the impleading application filed by the appellant in the said suit came to be dismissed. Ultimately, this Court in Writ Petition No.29089/2010 9 by an order dated 4.10.2010 permitted the appellant to come on record in O.S. No.1748/2004 and subsequently the appellant filed the written statement. He also contended that compromise entered into between the parties on 9.8.2011 in O.S. No.1748/2004 in respect of property of the appellant as per Annexure- F. In the compromise petition, the 1st respondent has clearly admitted that the site purchased by the appellant is a part of the suit schedule property mentioned in O.S. No.1748/2004. The said material aspect has not been considered by the trial Court while passing the impugned order.
8. He further contended that in the Judgment & Decree passed by the trial Court in O.S. NO.1748/2004, the defendant Nos.1 to 9 were directed to execute the registered sale deed in favour of the plaintiff excluding the site sold in favour of defendant Nos.10 and 11 under the sale deeds dated 7.9.1992 and the said 10 judgment and decree has reached finality. Therefore by the impugned order, the trial Court ought not to have granted Permanent Injunction in favour of the plaintiff including the property purchased by the present appellant. He further contended that while considering I.A. for Temporary Injunction, the trial Court granted Permanent Injunction. It is nothing but granting main relief and the same is impermissible. Therefore he sought to set aside the impugned order passed by the trial Court by allowing the present Miscellaneous First Appeal.
9. Per contra, Sri Sadashiv Reddy, learned senior counsel appearing for the plaintiff/1st respondent sought to justify the impugned order and strenuously contended that the identity of the property purchased by the appellant measuring 30 feet x 90 feet is in dispute. Out of 2 acres 38 guntas of land in Sy.Nos.15 and 68/1 of Parappana Agrahara, Begur Hobli, Anekal 11 taluk, it is not forthcoming from the records as to where exactly the property purchased by the appellant is situated. In the absence of the same, the trial Court is justified in allowing I.A. No.2. He further contended that no schedule is mentioned in the alleged compromise petition entered into between the parties on 9.8.2011 specifying the property in respect of which the suit was compromised. Therefore he sought for dismissal of the present Miscellaneous First Appeal.
10. In view of the aforesaid arguments advanced by the learned counsel for the parties, the only point that arises for consideration in the present appeal is:
"Whether the trial Court is justified in allowing I.A. No.2 filed under Order 39 Rules 1 and 2 of Code of Civil Procedure, 1908 including the property of the first defendant, in the facts and circumstances of the present case ?12
11. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record carefully.
12. It is an undisputed fact that the 1st respondent herein who was the plaintiff before the trial Court filed the suit for specific performance in O.S. No.1748/2004 directing the defendant Nos.1 to 9 to execute the sale deed in pursuance of the agreement of sale dated 5.12.1993 It is the case of the plaintiff that the defendants are the owners of the suit schedule property morefully described in the schedule measuring 2 acres 38 guntas. They have executed agreement of sale in favour of the plaintiff for a sum of `1,18,000/- and on the same day received `50,000/- as part performance of the agreement of sale. Inspite of the agreement dated 05.12.1993 and inspite of the repeated requests made by the plaintiff, the defendants have not executed the 13 sale deed. Therefore he has filed the suit for specific performance. The defendant Nos.1 to 9 not filed the written statement. The defendant No.10 filed the written statement denying the entire plaint averments and contended that she is the absolute owner of the property under the registered sale deed dated 07.09.1992 to an extent of 30 feet x 90 feet in khatha No.18 out of Sy. Nos.15 and 68/1 of Parappana Agrahara, Begur holbi, Anekal taluk. According to the 10th defendant, it is within the suit schedule property and the plaintiff filed the present suit i.e., O.S. No.3666/2016 suppressing the material facts of the case including the compromise entered into between the parties in O.S. No.1748/2004 and the suit filed by the plaintiff is barred by res judicata etc.,
13. The material on record clearly indicates that the present appellant who is the defendant in the trial Court purchased a site in khatha No.18 measuring 30 feet x 14 90 feet under the registered sale deed dated 07.09.1992 from the original owners - K.N. Ananda Reddy and Munireddy out of Sy.Nos.15 and 68/1 of Parappana Agrahara, Begur hobli, Anekal taluk. It is also not in dispute that in the earlier suit - O.S. No.1748/2004 filed by the first respondent herein to enforce the agreement to sell dated 05.12.1993, the appellant herein was not impleaded. Therefore the appellant herein filed an impleading application in the suit and the same was rejected. Aggrieved by the same, the appellant approached this Court in Writ Petition No.29089/2010, which was allowed permitting her to come on record as 10th defendant in O.S. No.1748/2010.
14. This Court in W.P. No.29089/2010 has observed that in view of the dispute that, the property of the appellant herein does not form a part and parcel of the suit property, it was suggested to the learned counsel 15 for the respondent No.1/plaintiff, that a Court Commissioner could be appointed to conduct local inspection and submit report as to whether the property purchased by the petitioner under the sale deed as at Annexure-C to I.A. No.5 forms a part and parcel of the suit schedule property or not, learned counsel having taken time, submitted that, there is no need for appointment of a Court Commissioner and that, the Court may pass suitable order. The appellant has produced a copy of the sale deed under which, she has purchased the property, which she claims as part and parcel of the suit schedule property. The said document is not in dispute. There is a primafacie material on the basis of which, it was rightly contended that, the property purchased forms part and parcel of the suit schedule property. Even otherwise, there could be a trial in that regard. Ultimately this Court allowed the writ petition and permitted the appellant herein to 16 come on record in O.S. No.1748/2004. The said order passed by this Court is final and conclusive.
15. It is also not in dispute that during the pendency of the proceedings, the present respondent and the appellant entered into compromise under Order 23 Rule 3 of Code of Civil Procedure, 1908 on 9.8.2011. In the compromise petition, it is stated as under:
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16. The trial Court after considering the entire material on record by the Judgment & Decree dated 1.10.2011 decreed the suit - O.S. No.1748/2004 in part and directed defendant Nos.1 to 9 to execute the registered sale deed conveying the suit schedule property excluding the sites sold in favour of defendant Nos.10 (present appellant) and 11 under the sale deeds dated 7.9.1992 within one month from the date of the 18 order. The said judgment and Decree reached finality and binding on the parties.
17. When the things stood thus, the 1st respondent herein filed O.S. No.3666/2016 contending that site purchased by the appellant was not part of the suit schedule property in O.S. No.1748/2004 and sought for Permanent Injunction.
18. After careful perusal of the entire impugned order passed by the trial Court, it is clear that the trial Court has not considered the sale deed dated 7.9.1992 by which the appellant has purchased site from the original owners - K.N. Ananda Reddy and Munireddy measuring 30 feet x 90 feet bearing khatha No.18. The trial Court has also not considered the fact that there was compromise between the present plaintiff and the first defendant on 9.8.2011 as per Annexure-F. It is also not in dispute that the decree passed by the trial 19 Court in O.S. No.1748/2004 clearly depicts that the property sold in favour of defendant No.10 and 11 was excluded. Inspite of the same, the trial Court has granted injunction in respect of the entire property. The same is contrary to the material on record. The trial Court has also not considered the compromise entered into between the parties. Therefore the impugned order cannot be sustained in law.
19. The material on record clearly depicts that the trial Court has gone to the extent to observe that admittedly ownership of the vendors of the appellant suffers from identity crisis and it is not forthcoming as to where exactly the property purchased by the appellant is situated in the total extent of 2 acres 38 guntas of land. The plaintiff has to establish his case independently based on the pleadings and the plaintiff cannot succeed on the weakness of the defendants. The first defendant filed the written statement and 20 contended that the present suit filed by the plaintiff is barred by res judicata. The said material pleading is not considered by the trial Court. It is also evident from the impugned order passed by the trial Court that while considering I.A. for Temporary Injunction, the trial Court has strangely granted permanent injunction which is impermissible in law.
20. For the reasons stated above, the point raised in the present Miscellaneous First Appeal has to be held in the negative holding that the trial court is not justified in granting Permanent Injunction including the property of the 1st defendant. The same is contrary to the material on record.
21. In view of the above, the present Miscellaneous First Appeal is allowed and the impugned order passed by the trial Court is set aside.
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22. Though this Court incline to remand the matter to the Trial Court for fresh consideration on I.A.No.I, the learned counsel for the appellant/defendant No.1 on instructions submits that defendant No.1 will not construct further or alienate the property purchased by her. He also invited the attention of the Court that in paragraph-8 of the written statement filed by the first defendant, it is stated that it is alleged by the plaintiff that the 1st defendant is trying to put up construction on the site purchased by her. In fact the 1st defendant has already constructed small house measuring 10 feet x 10 feet and obtained electricity connection and now she is not putting up any construction over the remaining vacant land. In view of the said categorical statement made by the first defendant/appellant, question of granting temporary injunction does not arise. Therefore, there is no necessity to remand the matter as rightly submitted by the learned counsel for the parties to the lis.
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23. Taking into consideration the fact the controversy between the parties is pending since 2004, it is suffice to direct the trial court to dispose of the suit as expeditiously as possible subject to cooperation from the parties to the lis.
Ordered accordingly.
Sd/-
JUDGE kcm/gss