Karnataka High Court
K Murali Krishna S/O. K. Sanna Marenna vs M K Ravindra S/O. M.K. Virupakshappa on 8 October, 2013
Bench: K.L.Manjunath, A.N.Venugopala Gowda
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 08th DAY OF OCTOBER, 2013
PRESENT
THE HON'BLE MR.JUSTICE K.L.MANJUNATH
AND
THE HON'BLE MR.JUSTICE A.N.VENUGOPALA GOWDA
REGULAR FIRST APPEAL No.4022 OF 2012 [DEC/INJ]
BETWEEN:
K MURALI KRISHNA S/O. K. SANNA MARENNA
AGE: 39 YEARS,
R/O. DOOR NO.16. WARD NO. 14,
SOMADRI, STREET,
BRUCEPET, BELLARY.
... APPELLANT
(By Sri. V M SHEELVANT ADV.)
AND:
1. M K RAVINDRA
S/O. M.K. VIRUPAKSHAPPA
AGE: 51 YEARS, R/O. DOOR NO. 39/2,
WARD NO. 5, GANESH TEMPLE STREET,
BRUCEPET, BELLARY.
2. MANJUNATH
S/O. M. P SANNA BASAPPA
AGE: 60 YEARS,
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R/O. DOOR NO. 51, 12TH WARD,
REDDY STREET, BRUCEPET,
BELLARY.
... RESPONDENTS
(By Sri. V P KULKARNI ADV. FOR C/R1;
R2--SERVED)
THIS RFA IS FILED UNDER SEC.96 R/W. ORDER XLI,
RULE 1 OF CPC, AGAINST THE JUDGMENT AND DECREE
DTD:22.10.2011 PASSED IN O.S.NO.146/2008 ON THE
FILE OF THE PRL. Sr. CIVIL JUDGE, BELLARY, DECREEING
THE SUIT FILED FOR DECLARATION AND PERMANENT
INJUNCTION.
This appeal coming on for Admission this day,
K.L.MANJUNATH, J., delivered the following:
J U D G M E N T
Though the matter is listed for admission, with the consent of both parties, same is heard on merits and disposed of.
2. The present appeal is preferred by the appellant who is defendant No.1 in O.S. No.146/2008 on the file of Principal Senior Civil Judge, Bellary, wherein the suit filed by the 1 s t :3: respondent herein/Sri.M.K.Ravindra has been decreed on 22.10.2011, declaring him as an absolute owner of the suit schedule property and further declaring the sale deed dated 20.07.2006 executed by the Court Commissioner in favour of respondent No.2 / Manjunath is not binding on the plaintiff and consequently, sale deed executed by respondent No.2 in favour of appellant on 13.09.2006 as null and void and also the Court has permanently restrained the defendants from interfering with the peaceful possession and enjoyment of the suit schedule property.
3. For the sake of convenience, the parties would be referred to as per their rank before the trial court.
4. The plaintiff/M.K.Ravindra filed a suit to declare him as an absolute owner of the plaint schedule property and also to grant a perpetual :4: injunction. The suit property is bearing Plot No.53/2 carved out of Sy. Nos.879-B, 880-A and 886-B situated at Ward No.17, Patel Nagar, now known as Venkateshwara Nagar, Bellary, within the limits of City Corporation of Bellary, measuring East to West-60 feet, North to South-40 feet.
5. It is the specific case of the plaintiff that one K.Sathya Narayana was the absolute owner of the plaint schedule property. Sathya Narayana sold the suit property in favour of the plaintiff under registered sale deed dated 07.11.1989 and the plaintiff was put in possession of the property along with sale deed. After purchasing the property, the Khatha of the property has been transferred to the name of plaintiff in the Municipal Office and he has been paying taxes regularly. With an intention to construct a building, the plaintiff went near the suit schedule :5: property to clear the dumped waste materials on 02.03.2008, when the plaintiff was demarking his boundary to put up a construction, defendant No.1 who is in no way concerned with the suit property started objecting the plaintiff from carrying on the work. When defendant made attempt to interfere with the lawful possession of the suit property, the plaintiff filed a suit for permanent injunction in O.S. No.201/2008 on the file of the 3 r d Additional Civil Judge (Jr.Dn.), Bellary.
6. The 1 s t defendant entered appearance in the suit and filed written statement. In the written statement, it was contended that the 2 n d defendant had purchased the property under a court decree passed in O.S. No.278/2002 and the 2nd defendant had filed the suit against one Smt.Ashwathamma W/o.Sathya Narayana (the vendor of the plaintiff), based on the alleged :6: agreement of sale dated 30.04.1999 said to have been executed by Sathya Narayana and pursuant to the said agreement, after the death of Sathya Narayana, suit was filed against Smt.Ashwathamma in O.S. No.278/2002 and obtained a decree for specific performance of the agreement and based on the same, the 2nd defendant obtained the sale deed through the Court Commissioner; same was registered on 20.07.2006 in E.P. No.20/2005. It was also the case of 1 s t defendant that 2 n d defendant in turn sold the afore-said property to defendant No.1 under the registered sale deed dated 13.09.2006. In view of the written statement filed by the defendant No.1 in O.S.No.201/2008, the said suit came to be withdrawn by the plaintiff and filed the present suit for comprehensive reliefs. :7:
7. In the suit, defendant No.1 contended that defendant No.1 who was the owner of Plot No.54 adjoining the suit property, in order to construct a house in a bigger site, purchased the plaint schedule property from Manjunath who had purchased the same under a court decree. It wa s also the case of defendant No.1 that defendant had mortgaged the suit property in favour of one Ramesh Prasrampuria under a registered mortgage deed dated 08.11.2006 for a sum of Rs.1,25,000/- and that Ramesh Prasrampuria is a necessary and proper property to the suit. It was also the case of the defendant that defendant No.1 obtained a loan from KSFC by depositing the title deeds in favour of KSFC and KSFC is also a necessary party. It was contended that defendant No.1 being the bona fide purchaser for valuable consideration pursuant to the decree granted in :8: O.S. No.278/2002 and the suit is barred by limitation and not maintainable.
8. Defendant No.2 filed written statement stating that after the institution of the suit, defendant No.1 approached him and demanded him to return the sale consideration and that an understanding was arrived between defendant Nos.1 and 2 / his wife Smt.M.P.Shanta, that a sum of Rs.11,00,000/- shall be paid to the 1st defendant and it was also contended by the 2 n d defendant that the suit is bad for mis-joinder and non-joinder of parties.
9. Based on the pleadings, following issues were framed by the trial court:-
1. W hether the plaintiff proves that he is the owner of the suit schedule property under the sale deed dated 07.11.1989?:9:
2. W hether the plaintiff proves that since then, he has been in possession and enjoyment of the suit schedule property?
3. W hether the defendant No.1 proves that he is son (it ought to be owner) of the suit schedule property as per the sale deed executed by Court Commissioner as per the decree in O.S. No.278/2002?
4. W hether the defendant No.1 proves that he is in possession of the suit schedule property?
5. W hether the suit of the plaintiff is bad for non-joinder of necessary party?
6. W hether the plaintiff is entitled for the relief sought for?
7. W hat order or decree?
ADDL. ISSUES FRAMED ON 02.09.2009
1. W hether the defendant No.1 proves that he is a bona fide purchaser for value without knowing any defect of title?
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2. W hether the defendant No.1 proves that the Court fee paid by the plaintiff is not proper?
ADDL. ISSUES
1. W hether the suit of the plaintiff is bad without seeking cancellation of sale deed?
2. W hether the suit of the plaintiff is barred by limitation?
10. In order to prove their respective contentions, plaintiff got himself examined as PW.1 and got marked in all 59 documents as Exs.P-1 to 59. Defendant No.1 got himself examined as DW-1 and one witness by name Sri.G.V.Raja Shekharachari as DW-2. He relied on Exs.D-1 to 39. Defendant No.2 did not step into the witness box.
11. The trial court after considering the entire evidence let in by the parties, held issues 1, 2 and 6 in the affirmative; issues 3, 4, 5, Addl. Issues 1, : 11 : 2, 4 in the negative; Addl. Issue No.4 as does not surviving for consideration. Ultimately, the suit filed by the plaintiff came to be decreed. Challenging the legality and correctness of the judgment and decree of the trial court, the present appeal is filed.
12. We have heard the Mr.V.M.Sheelvant learned counsel for the appellant and Mr.V.P.Kulkarni, learned counsel for plaintiff caveator/respondent No.1. Respondent No.2/Manjunath did not contest the appeal.
13. Sri.V.M.Sheelvant contends that the appellant is a bona fide purchaser for valuable consideration. According to him, before purchasing the schedule property from defendant No.2/Manjunath, he verified the title deeds of Manjunath. Since, Manjunath obtained the sale deed through Court Commissioner in E.P. : 12 : No.20/2005, pursuant to the decree passed in O.S. No.278/2002, the trial court was required to hold the appellant as bona fide purchaser for valuable consideration. According to him, the sale deed obtained by the plaintiff from K.Sathya Narayana was not within the knowledge of the appellant, inspite of the best efforts made by him to trace the title of Manjunath. Only on the ground that he is a bona fide purchaser for valuable consideration, he requests the Court to dismiss the suit by allowing the appeal.
14. Mr.V.P.Kulkarni, learned counsel for respondent No.1 submits that viewed from any angle, the appellant cannot be considered as a bona fide purchaser for valuable consideration, in view of the fact that sale deed executed by K.Sathya Narayana in favour of the plaintiff on 07.11.1989. It is also the case of respondent : 13 : No.1 that from 1989, Khatha stands in the name of respondent No.1/plaintiff and if the 1st defendant/appellant had shown any interest to verify the encumbrance certificate, naturally, the name of plaintiff would have been found place in the encumbrance certificate. Without verifying the encumbrance certificate and the title deeds pertaining to the suit schedule property since they were handed over by K.Sathya Narayana in favour of the plaintiff at the time of executing sale deed on 07.11.1989, the contention of the appellant cannot be accepted to believe that he is a bona fide purchaser for valuable consideration. He further submits that when the appellant has not disputed the ownership of K.Sathya Narayana, any agreement of sale executed by K.Sathya Narayana after 07.01.1989 either in favour of 2 n d defendant or in favour of any other person cannot bind the : 14 : rights of plaintiff. In the circumstances, he requests the Court to dismiss the appeal.
15. After hearing the learned counsel for parties, the points that arise for our consideration in this appeal are:
(i) W hether the trial court is justified in holding that the plaintiff as the absolute owner of the suit property?
(ii) W hether the trial court has committed an error in not considering defendant No.1 as the bona fide purchaser for valuable consideration?
Since both the points are inter-linked to each other, we would like to deal with both the points together.
16. Mr.V.M.Sheelvant does not dispute that the suit property was owned by K.Sathya Narayana. He has also not disputed that K.Sathya Narayana had sold the suit property in favour of : 15 : plaintiff/M.K.Ravindra under a registered sale deed dated 07.11.1989 as per Ex.P-2. The documents produced by the plaintiff clearly disclose that the taxes are paid by him to the Town Municipal Council at Bellary and Khatha stands in his name.
17. It is the specific case of the appellant that pursuant to the agreement of sale executed by K.Sathya Narayana in favour of Manjunath, Manjunath had filed a suit against the wife of K.Sathya Narayana in O.S. No.278/2002. It is also not in dispute that the alleged sale agreement was executed on 30.04.1999 by K.Sathya Narayana and that he had no right to execute an agreement of sale. Even if he had executed the agreement, such agreement executed behind the back of the plaintiff cannot bind the rights of the plaintiff and if the suit filed by defendant No.2 has : 16 : been decreed in O.S. No.278/2002, such a decree cannot bind the rights of the plaintiff.
18. In addition, if the appellant has purchased the property from 2 n d defendant much later, the appellant cannot be considered as a bona fide purchaser for valuable consideration, because at the first instance, K.Sathyanarayana had no competence to execute the agreement of sale and based on the same, any decree passed after the death of K.Sathya Narayana in favour of defendant No.2/Manjunath cannot bind the rights of the plaintiff. In addition to that, it was the duty of the appellant to verify from the municipal records and encumbrance certificate to ascertain whether K.Sathya Narayana had any right and whether the property was encumbered in any manner known to the law.
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19. The sale deed in favour of the plaintiff is ten years prior to the date of agreement, on 07.11.1989. If the appellant had taken a little pain to ascertain the title of Manjunath by applying for certified copy of the encumbrance certificate, it would have revealed to the appellant about the earlier sale deed executed by K.Sathya Narayana in favour of plaintiff on 07.11.1989. In the circumstances, if the appellant has purchased the property from Manjunath based on the sale deed executed by the Court Commissioner in O.S. No.278/2002 and E.P. No.20/2005, the same will not take away the rights of the plaintiff and the appellant cannot be considered as a bona fide purchaser for valuable consideration. In the circumstances, we are of the opinion that the appellant can only proceed against defendant No.2 for his redressal in the manner known to law. : 18 : With the above observations, the appeal is dismissed by answering both the points against the appellant.
SD/-
JUDGE SD/-
JUDGE Ct:byg/-
RK/-