Karnataka High Court
Venkappa vs Allinabi @ Amkinabi on 12 November, 2021
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 12TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE SURAJ GOVINDARAJ
WRIT PETITION No.106921/2016 (GM-CPC)
BETWEEN:
1 . VENKAPPA
S/O SANGAPPA GARASARGI
AGE: 65 YRS, OCC: AGRICULTURE
R/O: MUDHOL, TAL: MUDHOL-587314
DIST: BAGALKOT.
...PETITIONER
(BY SHRI.V.M.SHEELVANT,
SHRI VINAY S.KOUJALAGI,
SHRI GIRISH A.YADAWAD, ADVOCATE)
AND:
ALLINABI @ AMKINABI,
W/O HASANSAHEB ATTAR,
AGE: MAJOR, OCC: H.W
R/O: WARD NO.III MUDHOL,
TAL: MUDHOL,
DIST: BAGALKOT. ..RESPONDENT
(BY SHRI.ABHISHEK PATIL,
SHRI ANAND ASHTEKAR,
SHRI AKSHAY A. KATTI AND
SHRI M.R.SHINDE, ADVOCTES)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
ORDER DATED 06.08.2016 PASSED ON I.A.No.32 IN FDP
No.3/1998 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND
JMFC, MUDHOL, VIDE ANNEXURE-E AND ETC.,
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THIS WRIT PETITION COMING ON FOR FURTHER
ARGUMENTS, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. The Petitioner is before this Court seeking for the following reliefs:
" Issue writ of certiorari and quash the order dated 06.08.2016 passed on IA No.32 in FDP 3/1998 on the file of the Prl. Civil Judge and JMFC, Mudhol vide Annexure-E to meet the ends of justice and equity."
2. Final decree proceedings in F.D.No.3/1998 had been filed in respect of the decree passed in O.S.No.149/1989. The said suit having been filed for partition and separate possession, the trial Court dismissed the suit on 16.12.1989, on an appeal in R.A.No.3/1990 being filed, the first Appellate Court decreed the suit directing the plaintiff to be entitled to 2/5th share, defendant No.2 to be entitled to 2/5th share, defendant No.1 entitled to 1/5th share in R.S.No. 387 measuring 19 :3: acres 10 guntas. It is pursuant thereto that F.D.P.No.3/1998 had been filed.
3. Defendant No.2 in O.S.No.58/1979 which was renumbered as O.S.No.149/1989 had sold 9 acres of land in favour of defendant No.3 during the pendency of the said suit. Defendant Nos.2a, 2b, 2b(1) sold 10 acres and 12 guntas in Sy.No.387 to Satish Malgan and Shivlingappa Malgan by registered sale deed dated 13.12.1998 who inturn sold the property to the Petitioner and his brother Dundesh Garasangi by two separate sale deeds for 5 acres 6 guntas each on 22.07.1992 after the dismissal of the suit but before the appeal was allowed, the appeal which had been filed on 05.01.1990 was pending.
4. The Petitioner claimed to be in possession of said 10 acres 12 guntas of land which he acquired under family partition on 25.07.2000. Claiming that the Petitioner has subsequent to 22.07.1992 :4: carried out improvements on the said property on coming to know of the filing of the Final Decree Proceedings, the Petitioner filed an application in I.A.No.6 in F.D.P.No.3/1998 on 14.02.2005 seeking to implead himself which application came to be objected to by the respondent herein. However, the application came to be allowed.
5. Subsequently, the respondent filed an application under Section 54 of the CPC which came to be objected to by the Petitioner. The said application came to be allowed by the trial Court. Hence, the Petitioner filed W.P.No.63741/2010 wherein this Court finding that the Petitioner was alienee of the property could claim the benefit of Section 51 of the Transfer of Property Act and be entitled for payment of value of improvements, directed the trial Court to consider the same.
6. Consequently, the Petitioner filed I.A.No.32 under Section 51 of the Transfer of Property Act in :5: F.D.P.No.3/1998 making various claims of improvements and claiming a sum of Rs.2 crores towards the cost of improvement to be paid by the Petitioner or secured in favour of the Petitioner or in the alternative to direct the plaintiff to sell her interest in the said land in favour of the Petitioner or the market value irrespective of the value of the improvements. The said application came to be objected to by the respondent contending that no such improvement had happened and that the Petitioner is not bonafide purchaser, hence, Section 51 would not enure to the benefit of the Petitioner.
7. The trial Court conducted an enquiry on the said application, examined witnesses who marked various documents and by its order dated 06.08.2016 dismissed the said application. It is this order of the trial Court which is brought in question in the above writ petition. :6:
8. Shri V.M.Sheelvant, learned counsel for the Petitioner would submit that 8.1. The trial Court has grossly erred in passing the impugned order inasmuch as there is no application of mind by the trial Court to the said order.
8.2. The trial Court has misapplied itself to the aspect of the Petitioner being a bonafide purchaser, the trial Court only on the ground that the Petitioner has not caused any enquiry with the Malgan family i.e., the person from whom the Petitioner had purchased the property as regards the family history of the plaintiffs in the suit as also as regards the pendency of any proceedings before the Court inasmuch as the Regular Appeal was pending before the first Appellate Court as also that the Petitioner had not made any enquiry with the :7: family of the plaintiff prior to purchase of the suit property, held that the Plaintiff's purchase was not bonafide.
8.3. Considering that the parties were litigating from the year 1970, the Petitioner could have made proper investigation or enquired regarding the dispute and having failed to conduct such enquiry, the trial Court held that the purchase by the Petitioner cannot be said to be in good faith or that the Petitioner has acquired absolute title.
8.4. He submits that the same is completely misconceived in as much as the Petitioner is only required to examine the title of the property and not conduct an enquiry with the previous owners as held by the trial Court. 8.5. The Final Decree Court has not considered the aspect of the sale in favour of the :8: Petitioner and the improvement made by the Petitioner even though innumerable documents had been produced.
8.6. The order passed by the Final Decree Court is not on merits, the Final Decree Court has misapplied itself and therefore, the said order is required to be set aside and the application in I.A.No.32 requires to be allowed.
9. Per contra, Shri Akshay Katti, learned counsel for the respondent would contend that 9.1. Admittedly the Petitioner's vendor was a purchaser during the pendency of the suit and the Petitioner has purchased from such purchaser during the pendency of the appeal. Therefore, both the sales are hit by lis pendence and hence, the Petitioner cannot claim any interest in the property nor can the :9: petitioner claim the value of improvement on the property.
9.2. The Petitioner in order to claim to be bonafide ought to have enquired with the plaintiff and her family members before purchase of the property.
9.3. He further submits that there is no evidence on record to show that the Petitioner has carried out any improvement.
9.4. After coming to know of the pendency of the Final Decree Proceedings an application in I.A.No.6 was filed in the Final Decree Proceedings No.3/1998 in the year 2005 contending that the Petitioner had only invested Rs.5 lakhs of his own money and Rs.6 lakhs by borrowing it from the Bank. The Petitioner has failed to establish any improvement which has been caused and/or : 10 : the value thereof. Hence, there is no question of the Petitioner claiming an amount of Rs.2 crores as sought to be contended by the Petitioner.
9.5. The trial Court has rightly appreciated this fact, and as such, there is no requirement of this Court to intercede in the matter.
10. Heard Shri V.M.Sheelvant, learned counsel for the Petitioner, Shri Akshay Katti, learned counsel for the respondent and perused the papers.
11. The point that would fall for determination of this Court are:
11.1. Whether a purchaser of a property during pendency of a litigation would be entitled to the improvement carried out by him, if so, under what circumstances? : 11 : 11.2. Whether in the present case, the impugned order dated 06.08.2016 is proper and correct?
11.3. What order?
12. I answer the above points as under:
13. Answer to Point No.1: Whether a purchaser of a property during pendency of a litigation would be entitled to the improvement carried out by him, if so, under what circumstances?
14. Answer to Point No.2: Whether in the present case, the impugned order dated 06.08.2016 is proper and correct?
14.1. Both the above points being related to each other are taken up for consideration together.
14.2. Section 51 of the Transfer of Property Act would be relevant for consideration of the above matter. Section 51 reads as under:: 12 :
"51. Improvements made by bona fide holders under defective titles.-When the transferee of immoveable property makes any improvement on the property, believing in good faith that he is absolutely entitled thereto, and he subsequently evicted therefrom by any person having a better title, the transferee has a right to require the person causing the eviction either to have the value of the improvement estimated and paid or secured to the transferee, or to sell interest in the property to the transferee at the then market value thereof, irrespective of the value of such improvement.
The amount to be paid or secured in respect of such improvement shall be the estimated value thereof at the time of the eviction.
When, under the circumstances aforesaid, the transferee has planted or sown on the property crops which are growing when he is evicted therefrom, he is entitled to such crops and to free ingress and egress to gather and carry them."
14.3. By the very nature of the said provision, it is clear that improvement are to be carried out by bonafide holders not knowing that they are holding the property under a defective title.
: 13 :14.4. Section 51 is equally applicable to a property which has been purchased during the pendency of a suit i.e., purchase lis pendence inasmuch as such purchase would be under a defective title.
14.5. Though a person purchasing a property pending lis would not be entitled for any equities whether he has purchased the property knowing full well of the litigation or not. In terms of Section 51 of the Transfer of Property Act, there is an exception carved out that if a purchaser has purchased a property bonafide and has carried out any improvement in the said property, such purchaser lis pendence though cannot claim title of the property would be entitled for the improvement carried out on the property. 14.6. In the present case, the Petitioner and his brother had purchased 10 acres 12 guntas : 14 : from Satish Malgan and Shivalingappa Malgan who had inturn purchased the property from defendants 2a, 2b and 2b(1). 14.7. The suit had initially been dismissed and came to be decreed in R.A.No.3/1990 whereunder defendant No.2 has been put to be entitled to 2/5th share, plaintiff is entitled to 2/5th share and defendant No.2a being entitled to 1/5th share. Thus, it is not that defendant No.2 who had sold the property to Satish Malagan and Shivalingappa Malagan did not have any title over the property. It is only that they no not have title over the entire property.
14.8. The Petitioner has specifically pleaded that he was not aware of the pendency of the litigation when he and his brother purchased the property from Satish Malgan and Shivalingappa Malgan. The trial Court has : 15 : held that since the Petitioner did not enquire with the plaintiff and her family as regards the pendency of the litigation, the Petitioner has not exercised due diligence and therefore, the purchase cannot be said to be bonafide and consequently, the Petitioner would not have a locus standi to maintain application under Section 51 of the Transfer of Property Act.
14.9. Since the Petitioner has purchased a property from a previous purchaser who had purchased the property from one of the owners, it cannot be said or required or rather mandated as sought to be done by the trial Court that the purchaser go back and enquire from each of the previous owners as to whether any litigation is pending or not. 14.10. The Petitioner was required to conduct a due diligence on the title of the property which : 16 : the Petitioner claims to have done which has not been adverted to by the trial Court in the impugned order.
14.11. The claim of the Petitioner is that the Petitioner has carried out improvement subsequent to the purchase. The contention of Shri Akshay Katti is that no improvement has been carried out and even if any improvement has been carried out, the said improvement has been carried out subsequent to the Petitioner coming to know of the pendency of the Final Decree Proceedings after having filed an application to be impleaded in F.D.P.No.3/1998. Thus, he submits that even otherwise the improvement having been done after the knowledge of the pendency of the proceedings, the improvement is malafide with knowledge of the pendency of the : 17 : proceedings and therefore Petitioner would not be entitled to for any of the value of the improvement.
14.12. This contention raised before the trial Court and also before this Court has not been adverted to by the trial Court in the order passed.
14.13. The trial Court has though made certain observations as regards the money spent and/or the improvement made has finally rejected the claim on the ground that the Petitioner has not purchased the property in good faith after making enquiry and therefore, he is not entitled for any value of the improvement.
14.14. The trial Court has not considered all the evidence on record in the proper perspective so as to ascertain the time of : 18 : development/improvement, nature of improvement caused and the extrapolated value as on today. Since it is today that the property would vest with the respondents and that the Petitioner would be divested of his possession.
14.15. Be that as it may. The trial Court ought to have also determined aspects as to what the respondents were doing while the Petitioner was carrying out the improvement inasmuch as the respondents did not even seek for an order of injunction restraining the improvements.
14.16. The respondent could not sit quiet and permit the development thinking that they would be entitled to the improvement by not making payment for the development made so long as the development was made prior to knowledge of the litigation by the Petitioner. : 19 : 14.17. Though the Petitioner sought to implead himself in the year 2005, whether the improvement was carried out before 2005 or thereafter, the respondents could have sought for an injunction restraining the Petitioner from carrying out any such improvement and/or to seek the implead the Petitioner in the proceedings which was not done by them.
14.18. In view of the above, the trial Court not having appreciated the evidence on record, more particularly, when a Commissioner had been appointed to ascertain the improvement done and the value thereoff but having rejected the application only on the ground that the Petitioner had not made enquiry with the previous purchaser and the family of the plaintiff, I am of the considered opinion that the impugned order is required to be set : 20 : aside and as such, is set aside and the matter is remitted to the trial Court to consider the above aspects in accordance with the law if required by permitting the Petitioner and the respondents to lead further evidence within a period of 90 days from the date of receipt of the certified copy of this order. 14.19. The trial court on remand will have to give its finding as to:
14.19.1. whether the purchase by the petitioner was bonafide?
14.19.2. was the petitioner aware of the litigation when the improvement was carried out?
14.19.3. whether the improvement were carried out prior to the knowledge on the part of the petitioner as regards the pending litigation or : 21 : was it carried out after the knowledge?
14.19.4. If the improvement were carried out prior to the knowledge to determine the nature of improvement carried out prior to the said knowledge and assess the value of the improvement as on today, if necessary, by appointment of a Commissioner? 14.19.5. If improvement are carried out after the knowledge of the litigation, needless to say the petitioner would not be entitled for any value towards such improvement, 14.19.6. In the event of portion of the improvement being carried out : 22 : prior to knowledge and a portion of improvement being carried out subsequent to the knowledge of the litigation, to determine the portion of improvement carried out prior to the knowledge and appointment of a Commissioner.
15. The undertaking of both the counsels that they will co-operate with the trial Court in expeditious disposal of the case without seeking for unnecessary adjournment is placed on record.
16. To the extent stated above, the petition is allowed.
[Sd/-] JUDGE Jm/-