Karnataka High Court
Sri Ameerjan vs Devakinandan Goyal on 5 June, 2017
Bench: Chief Justice, R.B Budihal
1
IN THE HIGH COURT OF KARNATAKA AT
BENGALURU
DATED THIS THE 05TH DAY OF JUNE 2017
PRESENT
THE HON'BLE MR. SUBHRO KAMAL MUKHERJEE,
CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
REGULAR FIRST APPEAL NO.200/2005
C/W
REGULAR FIRST APPEAL NO.873/2005
AND
REGULAR FIRST APPEAL NO.1145/2004
IN REGULAR FIRST APPEAL NO.200/2005
BETWEEN:
1. Sri Ameerjan
Since dead by L.Rs.
(a) Budan Bi
W/o Late Ameerjan
Aged about 59 years
vide order dated 24.06.2014 cause title was amended
1(a) dead and 1(b) to 1(h) were
treated as her L.Rs. in this case.
(b) Sadiq Pasha
S/o Late Ameerjan
Aged about 21 years
2
(c) Siddique Pasha
S/o Late Ameerjan
Aged about 19 years
(d) Mubeena
D/o Late Ameerjan
Aged about 31 years
(e) Shabeena
D/o Late Ameerjan
Aged about 27 years
(f) Naseena Taj
D/o Late Ameerjan
Aged about 23 years
(g) Parveen Pasha
S/o Late Ameerjan
Aged about 13 years
(h) Patha Bee
D/o Late Ameerjan
Aged about 12 years
Appellants (g) and (h) are minors
represented by their natural guardian/
mother 1(a) appellant. .. APPELLANTS
(By Sri V Lakshminarayana, Sr. Counsel
a/w Sri S Nagaiah, Adv.)
AND:
1. Devakinandan Goyal
S/o Late Chaabildas
Aged Major
R/at No.60-A, Saha
Jeevana Apartments
Rajmahal Vilas Extension
3
Bangalore-560 080 by her
G.P.A. Holder K.C. Cherian.
2. K.C. Ayya
Since deceased by her L.Rs.
2(a) K.C. Ravishankar
S/o Late K.C. Ayya
2(c) Smt K.C. Lalitha
W/o Late K.C. Ayya
2(d) Smt Uma Ayya
D/o Late K.C. Ayya
2(e) Smt Rama Chandrashekar
D/o Late K.C. Ayya
Respondents 2(a) to 2(e) are
r/at No.44, 5th Cross
Raj Mahal Vilas Extension
Bangalore-560 080.
3. K.M. Abdul Basha
S/o Mohiyuddin
Aged Major
4. K.M Mohammed Akbar
S/o Mohiyuddin
Aged Major
Respondents 3 and 4 are
R/at No.1, Opp: Mubarak
Mosque, Kempaiah Block
J.C. Nagar, Bangalore-560 006.
5.(a) Smt Saraswathi B Belani
W/o Bansilal Belani
4
(b) Sri Mahesh
S/o Bansilal Belani
Both are majors,
R/at No.37, Link Road
2nd Cross, Malleshwaram
Bangalore-560 003.
6. Rajbir Singh Dhaka
S/o Ram Singh
Advocate 58 years
R/at HIG Duplex No.66
Chander Nagar
Gaziabad, UP.
7. Rajneesh
S/o Prem Kish
Aged 36 years
R/o 1728 Village Narela
Delhi-40.
8. M/s Orchard Developers
By its Partners
Sri P Ashwin Pai
No.10/1, Ground Floor
Lakshminarayan Complex
Palace Road
Bangalore-560 052. ..RESPONDENTS
(By Sri S Vijayashankar, Sr. Counsel
a/w Sri H Srinivas Rao and
Sri Badri Vishal, Adv. for R-1
Sri B S Manjunath, Adv. for R-3 and R-4
Sri A Keshava Bhat, Adv. for R-6 and R-7
Sri Adithi V Kumar, Adv. for R-8
R-2(a), 2(b), 2(d) served-unrepresented
R-2(e), R-5(a) and 5(b) are deleted
vide order dated 14.02.2006
5
Notice to R-2(c) is held sufficient
vide order dated 19.04.2011)
This Regular First Appeal is filed under Section 96
of CPC against the judgment and decree dated
18.08.2004 passed in O.S.No.10631/1990 on the file of
the XXVIII Addl. City Civil Judge, Mayo Hall Unit,
Bangalore, (CCH.No.29), decreeing the suit for
declaration and permanent injunction.
IN REGULAR FIRST APPEAL NO.873/2005
BETWEEN:
1. Sri Ameer Jan
Since dead by L.Rs.
1(a) Budan Bi
W/o Late Ameerjan
Aged about 59 years
As per order dated 23.06.2014
1(a) is dead and 1(b) to (h) are
treated as her L.Rs.
1(b) Sadiq Pasha
S/o Late Ameerjan
Aged about 21 years
1(c) Siddique Pasha
S/o Late Ameerjan
Aged about 19 years
1(d) Mubeena
D/o Late Ameerjan
Aged about 31 years
1(e) Shabeena
D/o Late Ameerjan
6
Aged about 27 years
1(f) Naseen Taj
D/o Late Ameerjan
Aged about 23 years
1(g) Parveen Pasha
S/o Late Ameerjan
Aged about 13 years
1(h) Patha Bee
D/o Late Ameerjan
Aged about 12 years
All the L.Rs. of the original appellant are
R/at Badihalli
Near Kannada Government School
Kyathasandra Post
Tumkur District.
Apellants 1(g) and 1(h) are minors
and hence are represented by their
natural guardian appellant 1(a). .. APPELLANTS
(By Sri V Lakshminarayana, Sr. Counsel)
AND:
Devakinandan Goyal
S/o Late Chaabildas
Aged Major
R/at No.60-A,
Saha Jeevana Apartments
Rajmahal Vilas Extension
Bangalore-560 080
By her G.P.A. Holder K.C. Cherian. ..RESPONDENT
(By Sri S Vijayashankar, Sr. Counsel
7
a/w Sri H Srinivas Rao and
Sri Badri Vishal, Advs.)
This Regular First Appeal is filed under Section 96
of CPC against the judgment and decree dated
18.08.2004 passed in O.S.No.10929/1996 on the file of
the XXVIII Addl. City Civil Judge, Mayo Hall Unit,
Bangalore, (CCH.No.29), dismissing the suit for
permanent injunction.
IN REGULAR FIRST APPEAL NO.1145/2004
BETWEEN:
1. Shri K.M. Abdul Basha
S/o Shri Mohiyuddin
Aged about 55 years
R/at No.1, Opp: Mubarak Mosque
Kempaiah Block
J.C. Nagar,
Bangalore.
2. Shri K.M. Mohammed Akbar
S/o Shri Mohiyuddin
Aged about 54 years
R/at No.1, Opp: Mubarak Mosque
Kempaiah Block
J.C. Nagar
Bangalore. .. APPELLANTS
(By Sri B S Manjunath, Adv.)
AND:
1. Shri Devakinandan Goyal
S/o Late Chaabildas
Aged Major
R/at No.6-A,
Saha Jeevana Apartments
8
Raj Mahal Vilas Extension
Bangalore-560 080
Represented by his
G.P.A. Holder Maj. K.C. Cherian (retd)
2.(a) Smt Saraswathi Belani
W/o Bansilal Belani
Major
(b) Sri Mahesh Belani
S/o Bansilal Belani
Major
Both R/at No.37, Link Road
2nd Cross, Malleshwaram
Bangalore-560 003.
3. Shri Ameer Jan
Since deceased by L.Rs.
3(a) Budan Bi
W/o Late Ameerjan
3(a) is dead.
Amendment carried out as per order dated
24.06.2014 and 3(b) to 3(h) are treated as her L.Rs.
(b) Sadiq Pasha
S/o Late Ameerjan
Aged about 21 years
(c) Siddique Pasha
S/o Late Ameerjan
Aged about 19 years
(d) Mubeena
D/o Late Ameerjan
Aged about 31 years
9
(e) Shabeena
D/o Late Ameerjan
Aged about 27 years
(f) Naseena Taj
D/o Late Ameerjan
Aged about 23 years
(g) Parveen Pasha
S/o Late Ameerjan
Aged about 13 years
(h) Patha Bee
D/o Late Ameerjan
Aged about 12 years
All are R/at Badihalli
Near Kannada Government School
Kyathasandra Post
Tumkur District.
4. Shri K.C. Ayya
Deceased by L.Rs.
(a) Shri K.C. Ravishankar
S/o late K.C. Ayya
Major
(b) Shri K.C. Neelakanta
S/o Late K.C. Ayya
Major
(c) Smt K.C. Lalitha
D/o Late K.C. Ayya
Major
(d) Smt Uma Ayya
D/o Late K.C. Ayya
Major
10
(e) Smt Rama Chandrashekar
D/o Late K.C. Ayya
Major
All are r/at No.44, 5th Cross
Raj Mahal Vilas Extension
Bangalore-560 080. ..RESPONDENTS
(By Sri S Vijayashankar, Sr. Counsel
a/w Sri H Srinivas Rao and
Sri Badri Vishal, Adv. for R-1
Sri V Lakshminarayana, Sr. Counsel
a/w Sri S Nagaiah, Adv. for R-3(b) to R-3(h)
R-3(a) - Dead
Notices to R-2(a) and R-2(b), R-4(a) to R-4(e) are held
sufficient vide order dated 19.04.2011)
This Regular First Appeal is filed under Section 96
of CPC against the judgment and decree dated
18.08.2004 passed in O.S.No.10631/1990 on the file of
the XXVIII Addl. City Civil Judge, Mayo Hall Unit,
Bangalore (CCH.No.29), decreeing the suit for
declaration and permanent injunction.
These Regular First Appeals having been heard
and reserved for judgment, coming on for
pronouncement this day, Budihal.R.B., J., pronounced
the following:
JUDGMENT
These three appeals are preferred against the common judgment and the decrees dated 18.8.2004 passed in O.S.Nos.10631/1990 and 10929/1996, questioning the legality and correctness of the said 11 judgment, on the grounds mentioned in the appeal memorandums of the respective appeals.
2. RFA Nos.200/2005 and 873/2005 are preferred by the defendant No.2 in O.S.No.10631/1990 and plaintiff in O.S.No.10929/1996 respectively.
RFA No.1145/2004 is filed by defendant Nos.4 and 5 in O.S.No.10631/1990.
3. One Devakinandan Goyal has filed the suit in O.S.No.10631/1990 against Smt.Saraswati B Belani and others seeking declaration that he has been the absolute owner in possession and enjoyment of the suit schedule property as mentioned in the schedule to the plaint; that the registered sale deed dated 19.4.1983 (Annexure 'Q' ) has been null and void and not binding on the plaintiff and it was liable to be set aside and the defendant Nos.1 and 2 in the said suit were not entitled to seek delivery of possession through Court under the registered Sale Deed dated 19.4.1983 and also for the 12 relief of permanent injunction to restrain the defendants 1 to 3 in the said suit from recovering possession of the suit property from the plaintiff under the registered sale deed dated 19.4.1983 executed by the Court in pursuance of the decree for specific performance in O.S.No.10514/1982 on 16.2.1983 either under Execution No.10130/1987 or in any other execution or any other proceedings, pending disposal on the file of the Additional City Civil Judge (ACCH 20) Mayohall, Bangalore.
4. Brief facts of the case as averred in the said suit are that, the plaintiff is the absolute owner of the building site formed by the City Improvement Trust Board, Bangalore bearing No.45(New No.21) situate in Rajmahal Vilas Extension, Bangalore (hereinafter referred to as 'schedule property') having purchased the same from defendant No.3 Sri.K.C.Ayya for a valuable consideration of Rs.49,500/-, under the registered sale deed dated 11.4.1972. Plaintiff has also got the khata 13 transferred in his name from Bangalore City Corporation as per khata certificate dated 8.5.1975. Further, having paid the property taxes, he obtained the sanction plan and put up stone foundation on the three sides except East and also put up a wire fencing to prevent intrusion by outsiders. He built a pucca watchman's quarter in the said site. He applied for sanction plan to build a residence premise in the schedule site and it was sanctioned on 7.11.1981. Since he could not build the building for want of finance, he again applied and obtained sanction plan in the year 1987 and this plan has also lapsed. In the year 1984 when his neighbour Ramakrishna encroached on the southern stone boundary, plaintiff instituted a suit for permanent injunction and mandatory injunction in O.S.No.10223/1984 and obtained an interim order restraining the defendant in the said suit from further encroachment. Defendant Nos.1 and 2 being interested in denying the title and possession of the plaintiff in respect of the suit site, on the basis of fraudulent 14 document brought about in collusion with the defendant No.3, formed trio to cause wrongful loss to the plaintiff, by illegally concocting the documents said to be anterior to 11.4.1972 with a view to put up false claim anterior to that of plaintiff, which are said to be prior agreements of sale of the years 1965 and 1970 and alleged consent letter said to have been issued by defendant No.3 to defendant Nos.1 and 2 in the years 1973 and 1976 seeking extension of time to execute the sale deed in their favour by arming themselves with these illegal documents. Defendants made attempts from 1981 onwards to disturb plaintiff's possession and enjoyment of the suit site and have also filed injunction suit in O.S.No.10547/1981 against the plaintiff and managed to secure an ex parte decree for permanent injunction by colluding amongst themselves. They also filed a suit in O.S.No.10514/1982 for specific performance against the plaintiff on the basis of the concocted documents mentioned above and also on the basis of permanent injunction passed in 15 O.S.No.10547/1981 and obtained a decree for specific performance against defendant No.3 ex parte without serving the plaintiff with the summons. As the plaintiff was placed ex parte, in these two suits, he was not aware of the decree for permanent injunction and also specific performance passed against him. On the basis of the said decrees, defendant Nos.1 and 2 made violent attempts to trespass into the suit schedule site. When plaintiff lodged complaint before the police, defendant No.2 has come up with the plea of passing of ex parte decrees . Immediately, plaintiff filed two petitions to set aside the two ex parte decrees and obtained stay of those decrees and upon non contest, the City Civil Court was pleased to allow Misc. 10068/1984 and O.S.No.10547/1981 has been restored to the file. In Misc.10069/1984 the Court held the findings in favour of the petitioner/plaintiff in so far as non-issuance of summons and condonation of delay were concerned, but held that petition is not maintainable as no decree was passed against the plaintiff therein since no relief 16 was sought against him. In other words, Civil Court has held that specific performance decree passed in O.S.No.10514/1982 was not binding on the plaintiff. Thereafter, defendant Nos.1 and 2 filed two suits in O.S.No.10237/1984 and O.S.No.3295/1985. In O.S.No.10237/1984, defendants have obtained temporary injunction order, upon which, the plaintiff took notice of the suit, but, however, defendant Nos.1 and 2 on 3.9.1985 filed a Memo seeking permission to withdraw the said suit, but the Court dismissed the suit without granting liberty to file a fresh suit. Accordingly, the temporary injunction granted was dissolved. Later, defendant Nos.1 and 2, filed O.S.No.3295/1985 for permanent injunction to restrain the plaintiff and defendant No.3 from interfering with their alleged possession and enjoyment of the suit site. However, the temporary injunction granted was vacated in O.S.No.3295/1985 subsequently. According to the plaintiff, the decree of specific performance passed in O.S.No.10514/1982 is not binding on him, as no relief 17 was sought against him in the said suit. Plaintiff was neither aware of the ex parte decree for specific performance passed on 16.10.1983 nor of the execution proceedings in pursuance thereto in Execution Case No.10040/1983 and execution of the sale deed on 19.4.1983 in favour of defendant Nos.1 and 2. The said sale deed was neither produced nor brought to the knowledge of the plaintiff. The sale deed to which he is not a party is not binding on him. Plaintiff is a bonafide purchaser of the suit site for a valuable consideration without notice of alleged earlier agreements of 1965 and 1970. The agreements of sale of the years 1965 and 1970 are invalid as defendant No.3 at that time had lost right, title and interest in the suit site, which was acquired by the then City Improvement Trust Board(hereinafter referred to as "CITB") and the acquisition proceedings were under challenge before this Court and ultimately, they were adjudicated before the Supreme Court of India. By a compromise order in Civil Appeal No.114/1966, the CITB re-conveyed the 18 suit site among other sites to defendant No.3 under a registered agreement of re-conveyance dated 3.3.1972. Thereafter, CITB delivered possession of the suit site to the defendant No.3 under possession certificate dated 8.3.1972. Thereafter, CITB authorised defendant No.3 to sell the suit site to any person of his choice as per his letter dated 7.4.1972 and thereafter, on 11.4.1972 defendant No.3 executed registered sale deed in favour of the plaintiff for valuable consideration of Rs.49,500/- which constitutes an absolute sale deed.
5. Defendants Nos.4 and 5 in the said suit filed their written statement denying the case of the plaintiff and further contending that the defendant No.3 Sri.K.C.Ayya at the relevant time had no title to convey to the plaintiff. All other acts done by the plaintiff pursuant to invalid sale deed also cannot be recognized as being void ab initio. Plaintiff has no manner of right, title or interest in the schedule property and defendant Nos.4 and 5 are the rightful owners of the said property. 19 Though plaintiff claims that decree for specific performance obtained by defendant No.2 is not binding on him, the same cannot be used against defendant Nos.4 and 5 as plaintiff cannot acquire any title to the suit property and he was not a necessary or proper party in those proceedings. All other averments of the plaint are denied by the defendant Nos.4 and 5.
6. The defendant No.2 in O.S.No.10631/1990 also filed a suit in O.S.No.10929/1996 for the relief of permanent injunction to restrain the defendant (plaintiff in O.S.No.10631/1990), their agents, persons, claiming through him from interfering with plaintiff's peaceful possession and enjoyment of the suit schedule property. In the schedule to the plaint he has mentioned the property as bearing old No.45 and new No.45/2 in RMV extension, 9th main, VI 'A' cross, Sadashivnagar, Bangalore. In the said suit, plaintiff pleaded that he is the absolute owner and is in exclusive peaceful possession and enjoyment of the suit schedule property. 20 He acquired the said property by virtue of agreements of sale dated 5.11.1965 and 5.4.1970. As the vendor failed to perform his part of the contract, the plaintiff filed the suit for specific performance in O.S.No.10514/1982 which was decreed in his favour. As the defendant in the said suit failed to obey the order of the said Court, plaintiff got the sale deed registered through the process of the Court. Plaintiff also got khata of the said property in his name. He has been regularly paying tax to the Bangalore City Corporation. The encumbrance issued by the Sub-Registrar, Gandhinagar, Bangalore also shows name of the plaintiff as absolute owner of the suit schedule property. The defendant No.1 has filed O.S.No.10631/1990 for declaration that the sale deed executed by the process of the Court is not binding on him and also for cancellation of sale deed. The defendant who is aware that the suit filed by him is frivolous and also that he would not succeed in the suit, is now trying to take law into his hands and trying to illegally trespass and dispossess the plaintiff from his 21 lawful and peaceful possession and enjoyment of the suit property with ulterior motives. On 5.9.1996 at about 6.15 a.m. the defendant along with henchmen tried to trespass into the suit schedule property and tried to illegally dispossess the plaintiff from suit schedule property and hence, plaintiff in order to protect his lawful possession and enjoyment of the suit schedule property, gave a complaint to the police and FIR was registered. Defendant who is powerful person having support of police and the underworld with lot of money, is highhandedly trying to dispossess the plaintiff from his exclusive possession of the suit property. Though criminal case was registered, police have not taken any action against the defendant.
7. The power of attorney holder of the defendant filed the written statement. The contents of which are as per the plaint averments in O.S.No.10631/1990. Hence, they need not be repeated again.
22
8. On the basis of the pleadings of the parties, the trial Court has framed the following issues in O.S.No.10631/1990:
1. Whether the plaintiff proves that he is the absolute owner of the suit property?
2. Whether the plaintiff is in lawful possession of the suit property?
3. Whether the defendant No.2 proves that he has perfected his title to the suit property by adverse possession?
4. Whether the plaintiff proves that the sale deed dated 19.4.83 is null and void, not binding to the plaintiff?
5. Whether the plaintiff proves illegal interference over suit property by the defendants 1 and 2?
6. Whether the suit is bad for mis-joinder of the parties?
7. Whether the suit is properly valued and the court fee paid is sufficient?
8. What decree or order?23
The following issues have been framed in O.S.No.10929/1996:
1. Whether plaintiff proves that he is the absolute owner in possession of the suit property?
2. Whether plaintiff proves that defendant is illegally trespassing and dispossessing the plaintiff from the suit property?
3. Whether defendant proves that he is the absolute owner of the suit property and that he is in possession of the same?
4. Whether defendant proves that plaintiff is not in possession of the suit property?
5. Whether plaintiff is entitled to the relief as prayed for?
6. What order/decree?
9. We have heard the arguments of the learned counsel appearing for the appellants and also the learned counsel appearing for the respondents. 24
10. Learned counsel for the appellants submitted that there are agreements of sale in the years 1965 and 1970 in favour of the appellant Ameerjan and one Bansilal Belani much earlier to the alleged sale deed dated 11.4.1972 in favour of the respondent No.1 Devakinandan Goyal. Hence, the plaintiff in O.S.No.10631/1990 cannot be the bonafide purchaser for value. He has also submitted that on the date of the alleged sale deed dated 11.4.1972, the City Improvement Trust Board ('CITB' for short) has not at all executed the sale deed in favour of Devakinandan Goyal, but it was only in the year 1996 the sale deed was executed by the BDA in his favour. Hence, he has submitted that the contention of Devakinandan Goyal, the plaintiff in the said suit, that on 11.4.1972 itself there was a sale deed in his favour cannot be accepted at all and even the possession was also not delivered in his favour. It is also his contention that the suit for specific performance filed by the appellant Ameerjan and Bansilal Belani against the owner K.C.Ayya was 25 decreed and even the decree was put into execution and through the orders of the Court, the sale deed was executed in their favour and execution petition was filed seeking delivery of the possession from K.C.Ayya, the owner of the property. He has submitted that the sale deed dated 19.4.1983 in favour of Ameerjan and Bansilal Belani is the outcome of specific performance decree passed by the Court in the suit filed by the intending purchasers. Further, there is no prayer by the plaintiff Devakinandan Goyal in his suit seeking declaration that the specific performance decree passed by the Court of law is not at all binding on him and even there is no prayer for the relief of setting aside the agreement of sale in between K.C.Ayya and Ameerjan and Bansilal Belani. Unless and until there is specific relief claimed for cancellation of the decree for specific performance, the bare suit of Devakinandan Goyal for declaration of title is not maintainable. This aspect is not at all taken into consideration by the trial Court. It has wrongly read the evidence and has wrongly 26 construed the legal provisions and decreed the suit of the plaintiff Devakinandan Goyal by dismissing the suit filed by Ameerjan. Even according to the pleadings and evidence of the plaintiff Devakinandan Goyal and his alleged power of attorney holder, if plaintiff came to know about the transaction of agreement of sale and the alleged interference by Ameerjan and Bansilal Belani in the year 1984 itself, the suit ought to have been filed within a period of three years from 1984. Therefore, the suit filed in the year 1990 is barred by the law of limitation. It is also his contention that the injunction relief sought as against the defendants Ameerjan and Belani family to restrain the execution proceedings itself is not maintainable, in view of the specific bar provided under Section 41(b) of the Specific Relief Act. Though it is contended by the plaintiff Devakinandan Goyal that Ameerjan and Bansilal Belani have committed fraud and they have created false documents alleged to be the agreements of sale of the years 1965 and 1970, details of the said fraud are not pleaded in the plaint. Without 27 such details as required under Order 6 Rule 4 of CPC, a bald and vague allegation of fraud is not sufficient. It is his contention that the plaintiff has mortgaged the suit schedule property to the bank as a security for the loan during the pendency of the Regular First Appeal. Either Devakinandan Goyal or his power of attorney have not brought to the notice of the Court about the said mortgage transaction and thereby, the plaintiff Devakinandan Goyal himself has committed fraud on the Court and not the defendants Ameerjan and Bansilal Belani. To show the said loan transaction between the plaintiff Devakinandan Goyal and the bank the appellants have filed the application under Order 41 Rule 27 of CPC along with documents to establish the said fact and hence, the said application may be allowed which will throw light on the real issue involved in the case. He has submitted that dismissal of the suit filed by Ameerjan and decreeing the suit filed by Devakinandan Goyal by the trial Court by passing a common judgment is patently illegal, perverse and 28 capricious and it is not maintainable in law. Accordingly, he has sought for allowing the appeals by decreeing the suit of Ameerjan and to set aside the judgment and decree passed in favour of Devakinandan Goyal. In support of his arguments, learned counsel appearing for the appellants has relied upon the judgments of the Hon'ble Apex Court, so also, the judgments of other High Courts and has also filed reply to the arguments of the learned senior counsel for the respondents.
11. Per-contra, the learned senior counsel appearing on behalf of the respondent-plaintiff has submitted that the appellants are neither the owners of the property nor they were in possession of the suit schedule property. He has submitted that the suit property was acquired by the CITB in the year 1959 itself and subsequently, the proceedings challenging the said acquisition came to an end before the Hon'ble Apex Court by way of compromise in the year 1972. 29 Therefore, the alleged agreement of sale in the years 1965 and 1970 were without any title of K.C.Ayya, the owner of the property. As per the said compromise before the Hon'ble Apex Court, CITB has to re-convey one acre of land in favour of K.C.Ayya. Accordingly, CITB has re-conveyed one acre of the land during the month of March 1972 giving authorization to K.C.Ayya to alienate the property. As such, on 11.4.1972 K.C.Ayya executed registered sale deed in favour of plaintiff Devakinandan Goyal. He has submitted that though it is contended through out the proceedings that under the agreements of sale of the years 1965 and 1970, the agreement holders were put into the possession of the property, the execution petition was filed before the executing Court seeking delivery of possession from K.C.Ayya, which clearly shows that agreement holders i..e, Ameerjan and Bansilar Belani were neither owners nor they were put into actual possession of the suit schedule property. Learned senior counsel also drew our attention to the document 30 at Ex.P25 and submitted that a detailed enquiry was conducted after recording the evidence and also considering the documents produced on both sides in execution petition No.10045/1992 and it was held that Devakinandan Goyal is the absolute owner in possession of the suit schedule property and answered point Nos.2 and 4 in the negative as against the alleged decree holder. In view of this finding which has become final, the appellants cannot be permitted further to agitate the same points before this Court. Hence, he has submitted that there is no merit in the appeals and the same may be dismissed confirming the judgment and decree passed by the trial Court.
12. We have perused the grounds in the appeal memorandum of all the three appeals, oral evidence of the parties adduced before the trial Court, documents produced by both sides before the trial Court, common judgment and decree passed by the trial Court in O.S.Nos.10631/1990 and 10929/1996, all the materials 31 produced by the parties before this Court and also considered the oral submissions made by learned counsel on both sides, referred to above.
13. In view of the above, the points that would arise for our consideration are:
(1) Whether the appellant-defendant No.2 in O.S.No.10631/1990 and plaintiff in O.S.No.10929/1996 has established that he is the owner of the suit schedule property?
(2) Whether the respondent-plaintiff in O.S.No.10631/1990 established his ownership and title to the suit schedule property? (3) Whether the appellant in RFA Nos.200/2005 and 873/2005 and plaintiff in O.S.No.10929/1996 prove the fact that he was in actual possession and enjoyment of the suit schedule property from the dates of agreements of sale of the years 1965 and 1970?
(4) Whether the respondent in R.F.A.Nos.200/2005 and 873/2005 and plaintiff in O.S.No.10631/1990 proved the fact that he was put into actual possession of the suit schedule property from 11.4.1972 and continued to be in possession till the date of filing said suit? (5) Whether defendant Nos.1 and 2 can maintain the suit in O.S.No.10929/1996 in view of filing of 32 earlier suit in O.S.No.10237/1984 seeking relief of declaration of title and possession, which was withdrawn without liberty to file a fresh suit under the provisions of Order 23 of CPC?
(6) Whether the order passed by the trial Court in execution proceeding amounts to res-judicata for the appellants to maintain the suit in O.S.No.10929/1996?
(7) Whether the common judgment and decree passed by the trial Court suffers from any legal infirmity and calls for any interference by this Court?
Point Nos.1 and 2:
Since these two points are interconnected, regarding title of appellant-defendant No.2, defendant Nos.4 and 5 and the respondent-plaintiff, to avoid repetition, they are taken together.
Respondent-plaintiff claimed that he is the owner of suit schedule property having purchased the same under the sale deed dated 11.4.1972 from defendant No.3-K.C.Ayya. After the purchase, khata was entered in his name and he was paying the taxes in respect of 33 the said property and also constructed the watchman shed over the said property. It is also his case that though he obtained the sanction plan from the City Corporation for the construction of residential house, but for some reasons, he was not able to complete the construction work. On the contrary, it is the contention of defendant No.2 Ameerjan, who was the plaintiff in the counter suit O.S.No.10929/1996 that he is the owner of the suit schedule property along with Bansilal Belani and they purchased the suit schedule property under the agreements of sale of the years 1965 and 1970 from defendant No.3 K.C.Ayya and continued in possession. Thereafter, they filed the suit in O.S.No.10541/1982 and obtained decree against defendant No.3 K.C.Ayya and subsequently, by filing the execution petition and through the process of the Court got executed the sale deed in favour of said Ameerjan on 19.4.1983. In view of these rival contentions by the respective plaintiffs in both the suits, let us examine the materials placed on record regarding title of the respective plaintiffs. 34
It is an undisputed fact even according to the appellants herein and the legal representatives of Bansilal Belani that defendant No.3 K.C.Ayya was the owner of the property and in the year 1959 CITB, Bangaluru has acquired the property for formation of sites. Defendant No.3 K.C.Ayya challenged the said acquisition by filing writ petition before this Court and the said writ petition was allowed, acquisition proceedings were quashed. Being aggrieved by the same, CITB challenged the order of this Court by preferring SLP before the Hon'ble Apex Court wherein the matter was compromised and it was agreed between the parties that out of the total extent of land acquired, an area measuring 1 acre has to be re-conveyed by the CITB in favour of defendant No.3 K.C.Ayya. Accordingly, CITB executed registered re-conveyance deed on 3.3.1972 in favour of K.C.Ayya giving him the liberty to alienate the property to any person. Defendant No.3-K.C.Ayya executed the conveyance deed dated 11.4.1972 in favour of the plaintiff Devakinandan Goyal 35 for an amount of Rs.49,500/-. In this connection, the plaintiff Devakinandan Goyal has produced the khata certificate dated 8.5.1975 issued by the Bangalore City Corporation in the name of plaintiff-Devakinandan Goyal. We have also perused the receipts produced in Annexure 'D' series from 1972-1973 to 1990-1991, which shows that Devakinandan Goyal has paid the tax in respect of the said property to the Bangalore City Corporation, Bengaluru.
On the other hand, it is the contention of Ameerjan, the plaintiff in the counter suit in O.S.No.10929/1996 and also of Bansilal Belani regarding the agreements of sale dated 5.11.1965 and 5.4.1970 that as on the said two dates, defendant No.3 K.C.Ayya was neither the owner of the suit schedule property nor he was having possession of the said property, since in the year 1959 itself the property was acquired by the CITB, Bengaluru and possession was also delivered in favour of the CITB, which is clear from 36 the documents prepared by the revenue authorities. As regards the contention of said Ameerjan and Bansilal Belani that they have become the owners of the suit schedule property under the agreements of sale of the years 1965 and 1970 and of the subsequent decree in O.S.No.10541/1982 and also on getting the sale deeds executed through the process of Court is concerned, when defendant No.3 K.C.Ayya was neither the owner nor having possession of the property, he had no right to execute such agreements of sale of the years 1965 and 1970. Even if such documents are said to have been executed, it shall not confer title on either Ameerjan or on Bansilal Belani. It is no doubt true that in O.S.No.10541/1982 the plaintiff Devakinandan Goyal was also arrayed as defendant No.1 and the suit as against him came to be dismissed and it was decreed only against K.C.Ayya. Therefore, even if there is a decree in the said suit it is not binding on the plaintiff Devakinandan Goyal. The plaintiff Devakinandan Goyal filed Misc.No.10069/1984, but the said case also came 37 to be dismissed observing that when there is no decree as against Devakinandan Goyal, there is no necessity to allow the Misc.No.10069/1984. Though it is the contention of the appellants herein that the sale deed dated 19.4.1983 was got executed through the process of the Court in favour of Ameerjan and Bansilal Belani, since the suit in O.S.No.10541/1982 was not decreed as against Devakinandan Goyal, even if the plaintiff does not seek for cancellation of the said decree, it will not affect the case of plaintiff Devakinandan Goyal. Apart from that, in the execution proceedings dated 25.9.1992 in Execution Case No.10045/1992 the trial Court has passed a detailed order framing five points for consideration, wherein it is held that Devakinandan Goyal has established that he is the owner in possession of the suit schedule property and on the other hand, the decree holders failed to establish their case. The said order was passed after recording oral evidence of the parties on both sides, so also, after considering the documents produced by both sides. 38 None of the appellants herein have challenged the said order, which becomes final. The copy of the said order was also produced before the trial Court and it was marked as Ex.P25. Therefore, the contention of the plaintiff in O.S.No.10631/1990 that he is the owner of the property is supported by the documentary evidence. So far as O.S.No.10929/1996 is concerned, except the oral statement of the plaintiff therein, there is nothing on record to show that he is the absolute owner of the suit schedule property. Hence, we are of the clear opinion that the trial Court has rightly come to the conclusion in holding that Devakinandan Goyal-plaintiff in O.S.No.10631/1990 has established his title to the suit schedule property, whereas, the plaintiff in O.S.No.10929/1996 has failed to prove the same. Point Nos.3 and 4:
As we have already observed above, it is the contention of plaintiffs in both suits i.e., O.S.No.10631/1990 and 10929/1996 that they are in 39 possession and enjoyment of the suit schedule property. We have perused the document dated 11.4.1972, the deed of conveyance from defendant No.3 K.C.Ayya in favour of Devakinandan Goyal, wherein there is a specific recital regarding delivery of possession of the suit schedule property in his favour and the khata was also entered in his name. The tax paid receipts are also produced as per Annexure 'D' series. The materials placed on record shows that Devakinandan Goyal had filed O.S.No.10223/1981 against his neighbour one Ramakrishna since there was interference by him wherein Devakinandan Goyal had obtained interim injunction as against the said Ramakrishna. It is no doubt true that the materials also show that defendant Nos.1 and 2, namely, Ameerjan and Bansilal Belani also filed O.S.No.10547/1981 against Devakinandan Goyal and obtained ex parte decree of permanent injunction in the year 1982. As against which, Misc.No.10068/1984 filed by the plaintiff-Devakinandan Goyal came to be allowed setting aside the judgment and decree passed in 40 O.S.No.10547/1981 and the said suit was restored to its original file, which shows that the decree for permanent injunction, which was obtained by defendant Nos.1 and 2, namely, Ammerjan and Belani has been set aside by the Court allowing the said miscellaneous application. Apart from that, while opposing the suit filed by Devakinandan Goyal, by filing written statements defendant Nos.1 and 2, the appellants herein, all the while have ontended that under the agreements of sale they are put into actual possession and enjoyment of the property, but strangely they have also filed O.S.No.10237/1984 against Devakinandan Goyal seeking the relief of declaration of title and possession, which itself clearly shows that defendant Nos.1 and 2, namely, Ameerjan and Bansilal Belani were not at all in possession of the suit schedule property, as otherwise, there was no reason for them to seek for the relief of delivery of possession in the said suit. Not only that, defendant Nos.1 and 2 got the sale deed executed through the process of Court on 41 19.4.1983 in their favour based on the sale deed and further also on the interpretation that the decree of specific performance also includes the decree for possession, have filed Execution Petition No.10130/1987 wherein, defendant No.2 namely, Ameerjan filed the application requesting the Court to issue delivery warrant for delivery of possession in his favour from Devakinandan Goyal. But, on the application filed by Devakinandan Goyal which was allowed on 28.7.1990, the delivery warrant ordered by the executing Court was recalled. This clearly shows that defendant Nos.1 and 2 were not in actual possession and enjoyment of the suit schedule property.
The judgment debtor Devakinandan Goyal who filed the suit in O.S.No.10631/1990 for declaration of his ownership, that the sale deed dated 19.4.1983 in O.S.No.10514/1982 is null and void and not binding on him and for a permanent injunction to restrain the decree holders from securing possession of the schedule site in execution case No.10130/1987 or in any other 42 execution proceedings. The exparte temporary injunction order obtained by Devakinandan Goyal was confirmed on contest on 15.2.1991. The decree holders namely, Ameerjan and Bansilal Belani challenged the same before this Court in MFA and ultimately, they have withdrawn the said MFA on 26.6.1991. Apart from that, as per Ex.P25, a detailed enquiry was conducted on the application made by Devakinandan Goyal. The Executing Court has recorded the evidence on both sides, permitted the parties to produce documents in their favour and, ultimately, it has held that the plaintiff in O.S.No.10631/1990 namely, Devankinandan Goyal is the owner in possession of the suit schedule property and the contention of the defendants Ameerjan and Bansilal Belani that they were in possession of the suit schedule property has been negatived even by the Executing Court, which order becomes final, since it was not challenged before any other higher forum. The order of injunction granted in favour of the plaintiff Devakinandan Goyal as against the neighbour 43 Ramakrishna in O.S.No.10223/1981 also fortifies the contention of Devakinandan Goyal that he was and is in possession of the suit schedule property. Considering both the oral and documentary evidence placed on record, we are of the opinion that trial Court is justified in holding that Devakinandan Goyal was able to establish his possession over the suit schedule property. Point No.5:
The materials on record shows that even before filing the suit in O.S.No.10929/1996 by defendant No.2 Ameerjan, defendant Nos.1 and 2 earlier had also filed O.S.No.10237/1984 against Devakinandan Goyal seeking the relief of declaration of title and possession, which came to be withdrawn without seeking liberty of the Court to file fresh suit. In view of this factual aspect, the point for consideration is, in view of withdrawal of the earlier suit without seeking liberty, whether the subsequent suit in O.S.No.10929/1996 is maintainable.44
In this connection, we refer to the relevant provisions of Order 23 of the CPC under the heading withdrawal and adjustment of suits. Rules 3 and 4 of Order 23 of CPC are relevant for the purpose, which reads as under:
"(3) Where the Court is satisfied,
(a) that a suit must fail by reason of some formal defect, or
(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, It may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.
(4) Where the plaintiff, -
(a) abandons any suit or part of a claim under sub-rule (1), or
(b) withdraws from a suit or part of a claim without the permission referred to in sub-
rule (3), 45 He shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim." As per the above provision of law, Ameerjan, the plaintiff in O.S.No.10929/1996 is precluded from bringing subsequent suit when he has withdrawn the earlier suit without seeking prior permission of the Court.
Point No.6:
We have perused the materials on record, so also, Ex.P25 the order passed by the Executing Court while exercising jurisdiction under Order 21 of CPC and the relevant rules thereunder. As we have already observed above, the Executing Court on the application filed by Devakinandan Goyal has considered the oral evidence adduced by both the parties and also the documents and on framing five points for consideration has discussed the matter at length and recorded a negative 46 finding on point Nos.2 and 4 and affirmative finding on point No.5 in favour of Devakinandan Goyal. The order passed by the trial Court at Ex.P25 clearly shows that entire case of both the parties has been extensively considered in the execution proceedings. The defendants namely, Ameerjan and Bansilal Belani have not challenged the said order before any higher forum. Therefore, the said order under Ex.P25 operates as res judicata for the defendants to maintain the suit in O.S.No.10929/1996.
It is true that the appellants have filed the application under Order 41, rule 27 of CPC seeking leave of the Court to produce documents along with the application. But, so far as the alleged mortgage transaction between Devakinandan Goyal and the bank is concerned, since initially there is no pleading in the written statement filed in O.S.No.10631/1990 or in the plaint O.S.No.10929/1996 in which defendant No.2 Ameerjan was the plaintiff and also about the 47 arbitration agreement said to have been entered into between the parties there is no such pleading and when there is no issue framed by the trial Court on that aspect, the question of considering the application under Order 41 Rule 27 of CPC for production of additional documents will not arise at all. Even if the application is allowed, as there is no foundation in the pleadings, it will not help the appellants' case. Therefore, the application is liable for rejection and accordingly it is rejected. Moreover, we do not require those documents for pronouncement of this judgment as we do not see obscurity preventing us from arriving at our conclusion.
Point No.7:
In view of our above discussion, we do not find any illegality or error, nor there is any perverse or capricious view taken by the trial Court in passing the common judgment and decrees. The judgment and decrees passed by the trial Court are in accordance with 48 the materials placed on record. There are no justifiable and valid grounds to allow the above appeals.
Hence, all the three appeals are hereby
dismissed.
Sd/-
CHIEF JUSTICE
Sd/-
JUDGE
bkp