Karnataka High Court
C.V Chitti Babu Naidu vs John Peter on 27 May, 2024
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2024:KHC:41157
RFA No. 1716 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
REGULAR FIRST APPEAL NO. 1716 OF 2023 (INJ)
BETWEEN:
C.V CHITTI BABU NAIDU
AGED ABOUT 52 YEARS,
S/O C V VENKATASWAMY NAIDU,
RESIDING AT NO 30/6, FLAT NO 2,
3RD MAIN, 4TH FLOOR, NEW KEMPEGOWDA,
LAYOUT BALAJI ENCLAVE,
BANASHANKARI 3RD STAGE,
BANGALORE 560 085.
...APPELLANT
(BY SRI. C.M. NAGABHUSHAN, ADVOCATE FOR
SRI. AVINASH B C., ADVOCATE)
AND:
1. JOHN PETER
S/O INASAPPA,
AGED ABOUT 60 YEARS,
RESIDING AT NO 46,
4TH CROSS, 2ND MAIN,
Digitally signed AZADNAGAR,MYSORE ROAD,
by BANGALORE - 560 026.
LEELAVATHI S
R
2. SYED HAKIM RAZA
Location: HIGH S/O LATE MIR RAHMAN ALI,
COURT OF
KARNATAKA AGED ABOUT 54 YEARS,
RESIDING AT NO 17/2,
LEONARD LANE, RICHMOND ROWN,
BANGALORE 560 025.]
3. SYED SALEEM AGA
S/O MIR MAHADI HUSSAIIN,
AGED ABOUT 47 YEARS,
RESIDING AT NO 64,
SAKINA STREET, I K MAIN ROAD,
ALIPUR, GOWRIBIDANUR TALUK,
CHIKKABALLAPURA DISTRICT 561 213.
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NC: 2024:KHC:41157
RFA No. 1716 of 2023
4. JOHN MOSES
S/O JOHN P DEVAMANI,
AGED ABOUT 48 YEARS,
RESIDING AT NO 487,
6TH CROSS, 9TH MAIN,
HBR LAYOUT,
ST THOMAS TOWN POST,
BANGALORE 560 084.
5. E S HEMANTH KUMAR
S/O E SUBRAMANYAM NAIDU,
AGED ABOUT 44 YEARS,
RESIDING AT NO 18,
ANNIPURA MAIN ROAD,
SUDHAMNAGARA,
BANGALORE 560 027.
6. ABRAHAM D
S/O INASAPPA,
AGED ABOUT 55 YEARS,
RESIDING AT NO 43/3,
4TH MAIN ROAD,
GOVINDARAJANAGAR,
BANGALORE 560 040.
...RESPONDENTS
(BY SRI. SANTHOSH.S.GOGI, ADVOCATE FOR
SRI. N.BHARGAV, ADVOCATE FOR R-5
NOTICE TO R-1 TO R-4 & R-6 ARE
D/W VIDE ORDER DATED: 20.09.2023.)
THIS RFA IS FILED UNDER SEC.96 R/W ORDER 41 RULE 1 OF
CPC., AGAINST THE JUDGMENT AND DECREE DATED 26.07.2023
PASSED IN OS NO.3247/2020 ON THE FILE OF XVI ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU., DISMISSING THE SUIT FOR
PERMANENT INJUNCTION.
THIS APPEAL BEING HEARD AND RESERVED ON 18.01.2024
COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE
COURT DELIVERED THE FOLLOWING:-
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NC: 2024:KHC:41157
RFA No. 1716 of 2023
CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
JUDGMENT
This appeal by the plaintiff in O.S.No.3247/2020 on the file of the XVI Additional City Civil and Sessions Judge, Bengaluru (for short "the Trial Court") is directed against the impugned judgment and decree dated 26.07.2023, whereby the said suit filed by the appellant-plaintiff for permanent injunction restraining the respondents-defendants from putting up construction over the suit schedule immovable property was dismissed by the Trial Court.
2. Heard learned counsel for the appellant-plaintiff and learned counsel for respondent No.5-defendant No.5 and perused the material on record. On 20.09.2023, learned counsel for the appellant submitted that respondent Nos.1 to 4 - defendant Nos.1 to 4 as well as respondent No.6-defendant No.6 had been placed ex-parte before the Trial Court and hence, notice to them may be dispensed with. The said submission was recorded by this Court and vide order dated 20.09.2023, notice to the said respondent Nos.1 to 4 and 6 was dispensed with.
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3. For the purpose of convenience, parties are referred to by their respective ranks before the Trial Court.
4. Briefly stated, the facts giving rise to the present appeal are as under:
4.1 The plaintiff instituted the aforesaid suit in O.S.No.3247/2020 against the defendants for permanent injunction restraining them from putting up any construction on the suit schedule immovable property. It was contended that the suit schedule property originally belong to Mrs.Cornelia and her children, who executed a sale agreement dated 16.05.2012 agreeing to sell the property in favour of the plaintiff. It was contended that instead of executing a registered sale deed in favour of the plaintiff, the said Mrs. Cornelia and her children executed a registered sale agreement and a registered sale deed, both dated 19.03.2013 in favour of defendant No.1 herein.
Subsequently, defendant No.1 executed a registered sale agreement dated 17.06.2014 in favour of defendant Nos.2 and 3.
So also, defendant No.1 executed one more sale agreement dated 17.03.2015 in favour of defendant No.4.
-5-NC: 2024:KHC:41157 RFA No. 1716 of 2023 4.2 Plaintiff contended that since the said Mrs. Cornelia and others had not executed registered sale deed in favour of the plaintiff pursuant to the sale agreement dated 16.05.2012 executed by them in his favour and had executed the aforesaid documents in favour of the defendants, plaintiff instituted a suit in O.S.No.48/2018 against Mrs. Cornelia and others as well as defendant Nos.1 to 4 herein before the Trial Court. In the said suit, plaintiff sought for a decree for specific performance against Mrs. Cornelia and others, who were arrayed as defendant Nos.1 to 6 in the suit. The plaintiff also sought for cancellation of the aforesaid sale deed dated 19.03.2013, sale agreement dated 17.06.2014 and sale agreement dated 17.03.2015 executed in favour of defendant Nos.1 to 4 (supra) by arraying them as defendant Nos.7 to 10 in the said suit in O.S.No.48/2018. Defendant Nos.5 and 6/respondent Nos.5 and 6 in the present suit/appeal were not arrayed/impleaded as parties to the said O.S.No.48/2018.
4.3 The said suit was decreed in favour of the plaintiff by the Trial Court vide judgment and decree dated 12.07.2019, in terms of which, the said Mrs. Cornelia and others were directed to execute a registered sale deed in favour of the plaintiff. After receiving the balance sale consideration of Rs.1,38,00,000/- within a period of -6- NC: 2024:KHC:41157 RFA No. 1716 of 2023 two months from the date of the decree. In addition thereto, the Trial Court also directed cancellation and setting aside of the aforesaid sale deed dated 19.03.2013, sale agreement dated 17.06.2014 and sale agreement dated 17.03.2015. It was contended that the defendants attempted to put up legal construction on the suit schedule property pursuant to which enquiries made by the plaintiff revealed that defendant No.1 had executed a sham sale deed dated 08.05.2018 as well as a gift deed dated 28.08.2018 in favour of defendant Nos.5 and 6, respectively, during the pendency of the aforesaid O.S.No.48/2018 and since the police complaints given by the plaintiff in this regard did not yield the desired results, the plaintiff instituted the instant suit against the defendants before the Trial Court.
4.4 As stated supra, defendant Nos.1 to 4 and defendant No.6 remained ex-parte and did not contest the suit. Defendant No.5 filed his written statement disputing and denying the various allegations and claims made by the plaintiff. It was contended that the original owners Mrs. Cornelia and others had sold the suit schedule property in favour of defendant No.1 vide registered sale deed dated 19.03.2013 and subsequently, defendant No.1 sold the suit schedule property absolutely in favour of defendant No.5, who -7- NC: 2024:KHC:41157 RFA No. 1716 of 2023 accordingly got the khata changed to his name and started paying taxes and became the absolute owner in lawful and peaceful possession and enjoyment of the suit schedule property. It was contended that defendant No.5 was a bonafide purchaser of the suit schedule property for valuable consideration and that the judgment and decree passed in O.S.No.48/2018 was collusive and fraudulent and not binding upon defendant No.5. It was also contended that the plaintiff had not chosen to execute the judgment and decree alleged to have been passed in his favour in O.S.No.48/2018 and neither had any title nor possession over the suit schedule property so as to seek a decree for permanent injunction against defendant No.5. It was therefore contended that there was no merit in the suit and that the same was liable to be dismissed.
5. Based on the aforesaid pleadings, the Trial Court framed the following issues:
"1. Whether plaintiff proves that defendants NO.1 to 6 are liable to execute the sale deed in favour of plaintiff as per order passed in O.S.No.48/2018 as pleaded in the plaint.?-8-
NC: 2024:KHC:41157 RFA No. 1716 of 2023
2. The Whether plaintiff proves that defendant No.5 is trying to put up construction in the suit schedule property as pleaded in the plaint.?
3. The whether plaintiff is always ready to comply the order passed in O.S.No. 48/2018 as pleaded in the plaint.?
4. The Whether defendant No.5 proves that suit of the plaintiff is not maintainable?
5. whether plaintiff is entitled to the reliefs as sought for/
6. What order or decree?
Additional Issue:
Whether the defendant No.5 proves that the sale agreement dated: 16.05.2012 executed by Smt. Cornelia and her children i.e., the defendant Nos.1 to 6 in OS No. 48/2018 in favour of the plaintiff is a forged and created one?"
6. The plaintiff examined himself as PW.1 and one witness as PW.2 and documentary evidence at Exs.P-1 to P-217 were marked on his behalf. The defendant No.5 examined himself as DW.1 and documentary evidence at Exs.D-1 to D-13 were marked on his behalf.
7. After hearing both parties, the Trial Court rejected the claim of the plaintiff and proceeded to dismiss the suit by passing the impugned judgment and decree, which is as under:
-9-NC: 2024:KHC:41157 RFA No. 1716 of 2023 "10. Issue Nos.1, 3, 4 and Addl.Issue No.1 :
These issues are inter-connected with each other and therefore in o r d e r t o a v o i d r e p e t i t i o n o f f a c t s , t h e y a r e t a k e n u p together for discussion.
11. Actually, this suit is filed by the plaintiff against the defendants for bare injunction by seeking judgment and decree of permanent injunction restraining the defendants o r h i s m e n , a g e n t s , r e p r e s e n t a t i v e s o r a n y b o d y e l s e claiming under them from putting up any construction on the suit schedule property and for other consequential reliefs.
12. Though the suit is for bare injunction, on the basis of the pleadings my learned predecessor in Office, may be by inadvertence has framed the above issues. But the Hon'ble Apex Court, in the landmark judgment in the case of Anathula Sudhakar vs P. Buchi Reddy (Dead) By Lrs & Ors dated 25th March, 2008 has given guidelines for deciding question of law and facts in a suit for injunction, which reads thus:
"(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit f o r d e c l a r a t i o n a n d p o s s e s s i o n , w i t h o r wit hout a consequent i al in junct ion, is t he remedy.
Where the plaintiff's title is not in disput e or under a c loud, b ut he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally t h e i s s u e o f
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NC: 2024:KHC:41157 RFA No. 1716 of 2023 title will not be directly and s u b s t a n t i a l l y i n i s s u e . T h e p r a y e r f o r injunction will be decided with reference to t h e f i n d i n g o n possession. But in cases w h e r e d e j u r e p o s s e s s i o n h a s t o b e established on the b a s i s o f t i t l e t o t h e property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there a r e n e ce ss ar y p l ea d in gs a n d ap pr o pr i at e i s s u e r e g a r d i n g t i t l e [ e i t h e r s p e c i f i c , o r im p l ie d as n ot i ce d i n An na im ut h u Th ev ar ( su pr a) ] . W her e t h e a ve r m e nt s r e gar d in g title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a quest ion of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding t itle, and appropr iate issue relating to title on which parties lead ev i dence, if t he m at t er involv ed is sim pl e and straight- forward, the court may decide upon the issue regarding title, even in a suit f o r i n j u n c t i o n . B u t s u c h c a s e s , a r e t h e exception to the normal rule that question of t i t l e w i l l n o t b e d e c i d e d i n s u i t s f o r injunction. But persons having clear title and possession suing for injunction, should not b e d r i v e n t o t h e costlier and more cumbersome r e m e d y o f a s u i t f o r declaration, merely because some meddler vexatiously or wrongfully makes a claim or t r i e s t o e n c r o a c h u p o n h i s p r o p e r t y . T h e court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a m o r e c o m p r e h e n s i v e d e c l a r a t o r y s u i t , depending upon the facts of the case.
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NC: 2024:KHC:41157 RFA No. 1716 of 2023
13. In the light of above guidelines, this court perused the materials placed on record. Though generally in a suit for bare injunction, it is looked into whether the plaintiff is in lawful possession and is there any interference from the defendants over the suit schedule property. The main contention of the plaintiff is that one Mrs.Cornelia and her children represented him that they are the absolute owner in peaceful possession of suit schedule property bearing new Municipal No.116, PID No.78-10-116, old Municipal No.40, situated at Brigade Road, Civic Station, B.B.M.P. Ward No.78, Bengaluru measuring East-West: 62 feet, North-South: 52 feet in all measuring 3224 sq.ft., more fully described as the suit schedule property. but in paragraph 2 of the plaint, plaintiff stated that the husband of 1st defendant Sri C John Jacob acquired the schedule property from Sri R J Chinnaiah through a gift deed dated 20.01.1939 and the said C John Jacob died intestate on 27.06.2005 leaving behind Mrs. Cornelia and her children as his legal heirs to succeed his estate and ever since the Mrs Cornelia and her children are in peaceful possession and enjoyment of suit schedule property without any let or hindrance, the same was again represented to the plaintiff. But in this paragraph it is mentioned as C John Jacob is the husband of 1st defendant. But on perusal of cause title Mrs. Cornelia is neither the defendant No 1 nor the party to this suit.
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NC: 2024:KHC:41157 RFA No. 1716 of 2023
14. Further, the case of the plaintiff is that and as Mrs.Cornelia and her children were in need of funds for their family beneficial purpose and other necessities, they offered to sell the suit property to the plaintiff for sale consideration of Rs.1,50,00,000/- and plaintiff has agreed to purchase the same. Accordingly, they entered into an agreement for sale dated 16.5.2012 and on entering into the said sale agreement, the Plaintiff on the same day paid Rs.10,00,000/- by way of cash as advance of consideration amount and he had agreed to pay remaining sale consideration amount at the time of execution of the sale deed. After that Mrs. Cornelia and her children had sought time for executing the sale deed to get the property documents. But, subsequently Mrs. Cornelia and her children did not evinced any interest in getting the documents and executing the sale deed and kept on dodging the matter for one or the other reason. Then on 13.8.2014, they once again demanded for additional amount for getting the required documents and as such, the plaintiff has paid another Rs.1,00,000/- by way of cash on 13.8.2014 and they acknowledged receipt of the said sum.Again on 16.06.2015, Mrs. Cornelia and her children approached the plaintiff and sought advance sale consideration amount and assured the plaintiff that they will get the requisite documents as sought by the plaintiff and believing their version, plaintiff once again paid Rs.1,00,000/- by way of cash on
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NC: 2024:KHC:41157 RFA No. 1716 of 2023 16.6.2015. Next to that during July, 2016 when the plaintiff applied for encumbrance certificate of the suit property, he came to know that during the subsistence of Sale Agreement dated 16.05.2012, the sale agreement dated 19.3.2013 in favour of first defendant, sale deed dated 19.3.2013 in favour of the first defendant, sale agreement dated 17.6.2016 by first defendant in favour of second and third defendants, sale deed dated 17.3.2015 by the first defendant in favour of the fourth defendant were executed in respect of the suit property. Thereafter, the plaintiff got issued legal notice to the defendants and filed O.S. No.48/2018 which was decreed setting aside the Sale Deed dated 19.03.2013, Sale Agreements dated 17.06.2014 and 17.03.2015 and directing the Plaintiff to pay the balance sale consideration of Rs.1,38,00,000/- and directing the defendants 1 to 6 to execute the registered sale deed by receiving balance sale consideration within two months.
15. But actual case of the plaintiff here in is that during March, 2020, due to COVID-19 situation, they could not execute the sale deed and they were waiting for the pandemic to end. But, during first week of July, 2020, neighbours of the suit property have informed the plaintiff that defendants are carrying on the construction activity in the suit property. After that, plaintiff immediately approached the defendants and requested to stop
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NC: 2024:KHC:41157 RFA No. 1716 of 2023 construction activities. But, despite having knowledge of the proceedings in O.S. No.48/2018, they have not responded to the said request of the plaintiff. On the other hand, they threatened him that they shall immediately start the construction activities. On enquiry, plaintiff came to know that during pendency of O.S. No.48/2018, first defendant has executed sham sale deed dated 8.5.2018 in favour of the fifth defendant and the gift deed dated 28.8.2015 in favour of the sixth defendant which shows that with an intention to cheat the plaintiff and to knock away the plaintiff's right over the suit property, defendants have created so many transactions.
16. All these averments of the plaintiff is denied by defendant No.5 in his written statement as stated supra. Firstly, the question is whether plaintiff proves that defendant No.1 to 6 are liable to execute the sale deed in favour of plaintiff as per order passed in O.S. No 48/2018 as pleaded in the plaint. To prove his case the plaintiff himself entered into witness box as PW1 and filed his sworn affidavit in chief and all the plaint averments are reiterated in his sworn affidavit in chief and to substantiate his case he has produced numerous documents which were marked as Ex.P 1 to Ex.P 27 and Ex.P 27(a) and (b). The main document in connection to this issue is Ex.P.16 the certified copy of judgment and decree in OS No.48/2018. On perusal of said document the
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NC: 2024:KHC:41157 RFA No. 1716 of 2023 plaintiff of this case is the plaintiff of that case. But defendants No.1 to 6 of that case are not the parties to this case. The defendants No.7 to 10 of that case are defendants No.1 to 4 in this case and one E.S.Hemanthkumar and Mr. Abraham D are added as defendants No.5 and 6 in this case. It is undisputed that the suit schedule property of this case and suit schedule property in O S No 48/2018 are one and the same.
17. On the other hand, in this case only defendant No.5 contested the case and filed his written statement. In paragraph 26 of his written statement, he has contended that without filing separate execution petition before the jurisdictional execution court to execute the decree in OS No.48/2018 which was for the decree of specific performance, the plaintiff has filed the above suit for injunction to harass the defendant No.5 and therefore the above suit is not maintainable under law as one cannot seek for an injunction based on the decree of specific performance. On perusal of plaint, though this is a suit mainly for bare injunction, it is also true that nowhere in the plaint the plaintiff has pleaded about his possession over the suit schedule property which is one of the main ingredients for the relief of injunction and he has pleaded the possession of Mrs. Cornelia and her children over the suit schedule property. Therefore, these issues are taken up together here. And again
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NC: 2024:KHC:41157 RFA No. 1716 of 2023 regarding title, he has stated that the judgment in O S No 48/2018 wherein it is decreed as per Order 15 Rule 1 of the CPC and directed the plaintiff to pay balance consideration of Rs.1,38,00,000/- to defendants No.1 to 6 within 2 months from the date of the decree. In turn the defendants No.1 to 6 shall execute sale deed in favour of plaintiff in respect of suit schedule property. Consequently sale deed dated 19.03.2013, sale agreement dated 17.06.2014 and sale agreement dated 17.03.2015 are set aside. The said case decreed on 12.07.2019. This suit is filed on 14.07.2020 after lapse of one year from the date of said decree in OS No.48/2018. As stated above as per judgment and decree in OS No 48/2018, the plaintiff has to pay balance consideration of Rs.1,38,00,000/- to defendants No 1 to 6 within 2 months from the date of the decree. But no documents have been produced by the plaintiff to show that the plaintiff has complied the order in OS No.48/2018 by making payment of balance sale consideration of Rs.1,38,00,000/- to the defendants No.1 to 6 of that case within 2 months from the date of the decree.
18. Moreover, in the cross examination of PW.2 he admitted that he knows Smt.Cornelia who is the original owner of suit schedule property since 18 years and on 16.05.2012 she made him telephone call and invited him to come. And he put his signature to agreement of sale in the house of Smt
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NC: 2024:KHC:41157 RFA No. 1716 of 2023 Cornelia which is situated adjacent to suit schedule property. that means the original owner of the suit schedule property also not in possession of the same. but in the plaint plaintiff pleaded that Smt.Cornelia and her children were in possession and enjoyment of the suit schedule property prior to agreement of sale and the same is reiterated in his sworn affidavit in chief. On perusal of cross examination of PW 1 in paragraph 6 of page No.13 he stated that " ¤.¦-24 gÀ 2£Éà ¥ÁågÁzÀ°è ªÀÄÆ® AiÀÄdªÀiÁ£ÀgÀÄ zÁªÁ ¸Àé w Û £ À ¸Áé ¢ ü à £ÀzÀ°è EzÀÝ g ÀÄ JAzÀÄ ºÉýzÉÝ Ã £É JAzÀgÉ ¸Àj." and again admitted that " ¤.¦-21 gÀ®Æè ¸Áé ¢ ü à £À gÀ»vÀ JAzÀÄ §gÉ¢zÉ JAzÀgÉ ¸Àj." but in page No.11 paragraph 2 of his cross examination he admitted that " £Á£ÀÄ zÁªÁ D¹Û A iÀÄ£ÀÄß Rjâ¸ÀĪÀÅzÀPÉÌ ªÉÆzÀ®Ä zÁªÁ ¸ÀÜ ¼ ÀªÀ£ÀÄß £ÉÆÃr vÀ¤SÉ ªÀiÁrzÉÝ Ã £É. £Á£ÀÄ zÁªÁ ¸ÀÜ ¼ ÀPÉÌ ºÉÆÃzÁUÀ C°è MAzÀÄ ªÀÄ£É EvÉÛ Ã JAzÀgÉ E®è SÁ° eÁUÀ EvÀÄÛ ªÀÄÄAzÉ zÁj EzÉ zÁj ¥ÀPÀÌ ªÀÄ£É EzÉ." That shows the contradiction in the pleading of plaint, the statement in chief examination affidavit of PW1 and in his cross examination regarding possession of suit schedule property. As stated above, PW2 stated that he put his signature to sale agreement in the house of original owner Smt Cornelia which is situated adjacent to suit schedule property, from which it is clear that before the sale agreement itself the original owner was not in the possession of the suit schedule property. Ex.P.19 is the certified copy of 'Agreement to sale' dated 16.05.2012 executed by
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NC: 2024:KHC:41157 RFA No. 1716 of 2023 Mrs.Cornelia along with her daughter Mrs Esther Padma Manjula and her two minor children (children of Mrs Esther Padma Manjula) and two sons of Smt Cornelia Mr Lawrence Rajkumar @ Allwyn Rajkumar and Vijay Paul Baskar in favour of plaintiff. The original of the same is produced on 09.12.2022 and particularly the receipt in the back page of page No.7 marked as Ex.P.27. In these two documents viz., Ex.P.19 and P.27, it is mentioned as "Agreement to Sell(WITHOUT POSSESSION)". Therefore, the documents itself shows that as on the date of filing of the suit plaintiff was not in possession of suit schedule property and prior to that the alleged original owners were also not in the possession of suit schedule property.
19. Ex.P.1 to Ex.P.8 are the sale agreements, cancellation of sale agreement and a gift deed. Ex.P.1 is the sale agreement dated 19.03.2013 executed by Smt Cornelia and others in favour of 1st defendant herein for the sale consideration of Rs.50,00,000/- in respect of suit schedule property and Ex.P.2 is the certified copy of absolute sale deed dated 19.03.2013 executed by Smt.Cornelia and others in favour of same 1st defendant herein in respect of same schedule property which is the suit schedule property for the sale consideration of Rs.5,00,000/-. These documents executed between the same parties on the same date in respect of same property but for different sale considerations
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NC: 2024:KHC:41157 RFA No. 1716 of 2023 i.e., one is for Rs.50,00,000/- another is for Rs.5,00,000/- creates doubt in the mind of the court. These documents are also executed without handing over possession which clearly establishes that the defendant No.1 herein was also not in possession of suit schedule property.
20. Ex.P 3 is the certified copy of agreement of sale dated 17.06.2014 executed by 1st defendant herein in favour of defendants No.2 and 3 of this case in respect of suit schedule property for the sale consideration of Rs.1,75,55,000/-. The previous two sale agreements Ex.P.1 and Ex.P.2 had taken place on 19.03.2013 without possession and after lapse of one year of said document, the 1st defendant herein executed a sale agreement dated 17.06.2014 in favour of defendants No.2 and 3 herein. But no documents of execution of sale deed on the basis of Ex.P.1 and Ex.P.2 have been produced. Here, interesting fact is that in Ex.P.1 and Ex.P.2 the sale consideration on the same property on the same date was shown as Rs.50,00,000/- and Rs.5,00,000/- with a huge difference. Again in a year it is increased to Rs.1,75,55,000/- as per Ex.P.3. Ex.P.4 is the cancellation of sale agreement dated 08.05.2018 executed by defendants No.2 and 3 in favour of 1st defendant herein. In the said deed of cancellation of sale agreement, Ex.P.3 stands canceled.
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NC: 2024:KHC:41157 RFA No. 1716 of 2023
21. Now Ex.P.5 is the certified copy of absolute sale deed dated 08.05.2018 executed by 1st defendant herein in favour of 5th defendant in respect of suit schedule property for the sale consideration of the amount of Rs.1,30,00,000/-. But the original of said sale deed has not been produced and there are no documents produced to show that Smt.Cornelia and others executed a sale deed in favour of 1 s t d defendant Mr.John Peter, after the execution of sale agreements dated 19.03.2013 which were marked as Ex.P.1 and Ex.P.2. Therefore, it creates clouds of doubts in the mind of this court as to how without title or ownership over the property this 1st defendant sold the property in favour of 5 t h defendant.
22. Ex.P.6 is another agreement of sale executed by 1 st defendant herein on 20.07.2018 in favour of one Sri V.M.Venkatesh for sale consideration of Rs.1,50,00,000/- in respect of suit schedule property and Ex.P.7 is the cancellation deed of Ex.P.6 dated 28.08.2018. Again Ex.P.8 is the certified copy of gift deed dated 28.08.2018 executed by 1 st defendant herein in favour of the 6 t h defendant in respect of suit schedule property. This document was executed after the execution of Ex.P.5 which is the absolute sale deed dated 08.05.2018. Ex.P.18 is the certified copy of another agreement of sale dated 17.03.2015 executed by one Mr. Paul John Jacob who is not party to this case in favour of
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NC: 2024:KHC:41157 RFA No. 1716 of 2023 4 t h defendant herein in respect of suit schedule property. The name of said Mr.Paul John Jacob mentioned as S/o Late John Jacob C, but his name is not mentioned in OS 48/2018 as a party even though it is shown in that case that defendants No.1 to 6 of that case are the heirs/legal representatives of Late C John Jacob. Ex.P.21 is the document for payment of stamp fee in respect of Ex.P.19 and Ex.P.27. Ex.P.16 and Ex.P.17 are the judgment and decree in O.S.No.48/2018 which were marked twice by oversight. Ex.P.22 and P.23 are the plaint and written statement filed in OS No.48/2018. Ex.P.24 is the legal notice dated 18.08.2016 issued by the learned counsel for plaintiff herein to defendants No.1 to 6 of OS No.48/2018 including defendants No.1 to 6 of this case. In this legal notice, it is informed by the plaintiff to the persons to whom he sent legal notice that if they fail to do what he requested about the sale transactions in the said notice, then he shall be constrained to initiate appropriate legal action against them by seeking for specific performance of the contract in appropriate court of law. But this document is connected to Ex.P.16 as that case is for specific performance. Therefore, when there is a judgment with decree of specific performance, then he has to file the petition for execution of the same. As per Ex.P.16 there was 2 months' time provided for payment of balance consideration and for specific performance of the contract. This case is filed by the same plaintiff after
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NC: 2024:KHC:41157 RFA No. 1716 of 2023 passing of one year from the date of the said judgment without producing any documents to show that he has performed his part of the contract and thereby the defendants No.1 to 6 executed a sale deed and consequently this plaintiff is in possession of suit schedule property. There is absolutely no documents produced to show that he has filed execution petition on judgment and decree in OS No.48/2018 or any other documents to show that he is in possession of suit schedule property and also to prove his title over the suit schedule property. Therefore on the basis of the above discussions and under the facts and circumstances of the case, this court is of the considered opinion that the plaintiff has failed to prove that the sale deed was executed by the defendants in his favour as per the order passed in OS No.48/2018 within 2 months from the date of said Judgment and decree.
23. As far as the Issue No.3 is concerned, on perusal of document, though Ex.P.24 the legal notice shows that it is for the relief of specific performance of contract, but the present case is for the relief of permanent injunction and hence, in this suit for permanent injunction, the question of deciding the issue as to whether the plaintiff is/was always ready and willing to comply the order passed in OS No.48/2018, does not arise.
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NC: 2024:KHC:41157 RFA No. 1716 of 2023
24. It appears that the plaintiff has drafted the plaint in a very clever manner and produced series of documents in order to mislead the court. The plaintiff after filing the suit for bare injunction and pleaded the facts which shows from the bird eye view, it is for specific performance of contract and only on worms eye view we can know that this is the case for bare injunction. Moreover, as per Ex.P.16 the operative portion of judgment of OS No.48/2018, the time period for performance of that sale contract in respect of suit schedule property already lapsed by a year.
25. Now issue No.4 and Additional Issue No.1 are concerned, definitely, this suit is filed on the basis of judgment and decree in OS No.48/2018 as this plaintiff has no any title deed to show that he is the absolute owner of the suit schedule property. He has produced number of agreements of sale which are discussed supra pertaining to suit schedule property and all the said documents shows that the said agreements were made without transfer of possession over the suit schedule property. Moreover, from the cross examination of PW1 and PW.2 it is clearly established that Smt.Cornelia and her children were not in possession of suit schedule property prior to execution of Ex.P.19 and P.27 and now they are the residents of Chennai. Further, there are no documents produced by the plaintiff or
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NC: 2024:KHC:41157 RFA No. 1716 of 2023 defendant No.5 to show that the vendor of defendant No.5 that is the 1 st defendant herein named Mr.John peter had possession over the suit schedule property prior to Ex.P.5 that is the absolute sale deed executed by 1 s t defendant in favor of 5 t h defendant. As discussed above, though Ex.P.1 and Ex.P.2 are the documents of sale transactions between Smt.Cornelia and others as vendors executed in favour of 1st defendant herein on the same date 19.03.2013 creates clouds of doubt in the mind of the court. Ex.P.1 is the "sale agreement without possession" dated 19.03.2013 executed by Smt.Cornelia and others in favour of 1 st defendant who is the vendor of 5 th defendant wherein the agreed sale consideration was for Rs.50,00,000/-in respect of suit schedule property. But on the same day, same parties executed sale deed by handing over vacant possession of the suit schedule property for mere amount of Rs.5,00,000/- in respect of suit schedule property which is situated in the heart of Bengaluru city viz., in Brigade Road, which comes under the jurisdiction of BBMP. As this suit is for bare injunction which depends on possession and interference over the possession, if plaintiff's proves his possession and interference of other side of his possession then only he can get the relief of injunction. If he fails to do so, the case of the plaintiff cannot stand. Here, in this case plaintiff has filed this suit seeking the relief of permanent injunction without producing any documents of his
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NC: 2024:KHC:41157 RFA No. 1716 of 2023 title and possession over the suit schedule property, and only on the basis of judgment and decree in OS No.48/2018. When the stipulated time for specific performance of contract has already been lapsed by a year, then definitely this suit for bare injunction is not at all maintainable. The plaintiff has also failed to prove that the defendants No.1 to 6 are to execute sale deed in respect of the suit schedule property in his favour. On the other hand, defendant No.5 also not produced his original sale deed. But, both plaintiff and defendant No.5 have produced only the certified copies of the said document and the said documents shows that vendor of defendant No.5 i.e., the defendant No.1 herein also had no possession over the suit schedule property. Therefore, the defendant No.5 has also not made out any grounds to prove that which document is genuine. Hence, this court answers Issue No.1,3 and Addl.Issue in the Negative and Issue No.4 in the Affirmative..
26. Issue No.2 and 5: The plaintiff filed this suit for permanent injunction against the defendants but failed to prove his possession over the suit schedule property as discussed above and nowhere in the plaint the plaintiff has specifically contended that the defendant No.5 is constructing the building in the suit schedule property. In paragraph 14 of the plaint, he has stated that "the defendants herein are carrying on construction activities in the schedule property". But all the other defendants were placed
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NC: 2024:KHC:41157 RFA No. 1716 of 2023 exparte except defendant No.5 and he has filed written statement and lead his evidence and cross examined PW.1 and PW.2. Though defendant No.5 has produced Ex.D.1 to Ex.D.13 documents, when the plaintiff failed to prove his possession over the suit schedule property, then the question of interference of the defendants or defendant No.5 with the possession of the plaintiff over the suit schedule property does not arise. Hence considering the Negative answer on Issue Nos. 1, 3 and Additional Issue No.1 and affirmative answer to Issue No.4, this court is of the considered opinion that the plaintiff has utterly failed to prove that defendant No.5 is trying to construct building in the suit schedule property as pleaded in the plaint. In result plaintiff is not entitled for the relief as sought for by him. Hence, this court answers Issue No.2 and 5 in the NEGATIVE.
27. Issue No.6 : For the foregoing reasons and discussions and considering the findings on the above issues, suit of the plaintiff is liable to be dismissed under the above circumstances. Accordingly this court proceed to pass the following:
ORDER The suit filed by the plaintiff is hereby dismissed. No order as to costs."
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8. In addition to reiterating the various contentions urged in the appeal and referring to the material on record, learned Senior counsel for the appellant submitted that the Trial Court committed an error in dismissing the suit filed by the plaintiff without correctly or properly considering or appreciating the material on record and the impugned judgment and decree passed by the Trial Court deserves to be set aside and the suit of the plaintiff deserves to be decreed in his favour. In support of his submissions, he placed reliance upon the following judgments:
i. Durga Prasad and another Vs. Deep Chand and others - AIR 1954 SC 75 ii. Bheemasenacharya Srinivasacharya Gudi and others vs. Gadag Veera-Narayana Dev and others
- AIR 2002 KARNATAKA 1 iii. Chaudhary Chandrika Prasad Singh and others Vs. Mithu Rai and others - AIR 1927 Patna 296 iv. Geetanjali Nursing Home (P) Ltd Vs. Dr. Dileep Makhija and others - AIR 2004 Delhi 53
9. Per contra, learned counsel for respondent No.5 would support the impugned judgment and decree and submit that there is no merit in the present appeal, which is liable to be dismissed and placed reliance upon the following judgments:
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NC: 2024:KHC:41157 RFA No. 1716 of 2023 i. M.A. Keerthiprasad Vs. M.A. Arundhathi - RFA No.835/2014 dated 22.07.2015 (DB). ii. Rajan Singh Vs. Roshan - CS(OS)603/2019 dated 12.02.2020 (Delhi).
iii. Kumaran Vs. Kumaran - (2010) SCC OnLine KER 4753.
10. I have given my anxious consideration to the rival submissions and perused the material on record.
11. In my considered opinion, the Trial Court was fully justified in rejecting the claim of the plaintiff and dismissing the suit by passing the impugned judgment and decree, which cannot be said to suffer from any illegality or infirmity warranting interference by this Court in the present appeal. Upon re-appreciation, reconsideration and re-evaluation of the entire material on record, I am of the view that the present appeal is liable to be dismissed for the following reasons:
(i) It is an undisputed fact that the plaintiff has not acquired any title over the suit schedule property even till today; so also, the plaintiff claims title over the suit schedule property by virtue of the judgment and decree passed in his favour in O.S.No.48/2018; in this context, it is relevant to state that the plaintiff has undisputedly
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NC: 2024:KHC:41157 RFA No. 1716 of 2023 not got the decree passed in O.S.No.48/2018 and registered sale deed has not been executed in his favour in relation to the suit schedule property; it follows therefrom that in the absence of any title having vested in the plaintiff in the suit schedule property, the instant suit for permanent injunction based on title was neither sustainable nor maintainable and was rightly dismissed by the Trial Court.
(ii) The plaintiff seeks permanent injunction restraining the defendants from putting up any construction over the suit schedule property; it is pertinent to note that the plaintiff does not claim to be in possession or enjoyment of the property; on the other hand, in the present suit, as well as O.S.No.48/2018, it is the specific contention of the plaintiff that he was not put in possession or enjoyment of the suit schedule property and the alleged sale agreement dated 16.05.2012, which was sought to be enforced in the said O.S.No.48/2018 clearly recites that the plaintiff was not put in possession or enjoyment of the suit schedule property under the agreement; so also, the judgment and decree dated 12.07.2019 passed in O.S.No.48/2018 does not direct the defendants therein to put the plaintiff in possession or enjoyment of the suit schedule property; under these circumstances, in the absence of the plaintiff
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NC: 2024:KHC:41157 RFA No. 1716 of 2023 being in possession or enjoyment of the suit schedule property, the plaintiff would clearly not be entitled to seek permanent injunction and the Trial Court was fully justified in dismissing the suit of the plaintiff on this ground also.
(iii) A perusal of the undisputed material on record, in particular, the judgment and decree passed in O.S.No.48/2018 will clearly indicate that no right, title, interest or possession over the suit schedule property has been created in favour of the plaintiff under the said judgment and decree; on the other hand, the said judgment and decree merely enforces the sale agreement alleged to have been executed in favour of the plaintiff and so long as the said decree has not culminated in registered sale deed executed in favour of the plaintiff, it cannot be said that the plaintiff has acquired any manner of right, title, interest or possession over the suit schedule property, so as to enable him to seek permanent injunction as against the defendants and the claim of the plaintiff is liable to be rejected on this score also.
(iv) The contention of the plaintiff that the decree in O.S.No.48/2018 also annuls/cancels/sets aside the sale deed dated 19.03.2013, sale agreement dated 17.06.2014 and sale agreement dated 17.03.2015 executed in favour of the defendants,
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NC: 2024:KHC:41157 RFA No. 1716 of 2023 on account of which, the plaintiff would be entitled to a decree for permanent injunction against them cannot be accepted; in this regard, there is no gainsaying that it is well settled that the plaintiff has to independently establish his right over the suit schedule property and is not permitted to place reliance upon the weakness in the claim of the defendants for the purpose of obtaining a decree in his favour and consequently, no reliance can be placed upon the judgment and decree passed in O.S.No.48/2018 by the plaintiff so as to seek permanent injunction against the defendants.
(v) It is also significant to note that the legality, validity and correctness of the aforesaid judgment and decree passed in O.S.No.48/2018 is assailed/challenged by defendant No.5 herein, who has instituted a suit in O.S.No.5346/2020 in relation to the very same suit schedule property seeking comprehensive reliefs including declaration etc., which is pending adjudication before the Trial Court; in addition thereto, there are other litigations between the parties in O.S.Nos.6591/2018 and 1955/2018 also in which comprehensive reliefs are sought for in relation to the very same suit schedule property; under these circumstances, the present suit for bare/permanent injunction simpliciter, that too by the plaintiff, who has no title or possession over the suit schedule property is
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NC: 2024:KHC:41157 RFA No. 1716 of 2023 clearly not maintainable and was rightly dismissed by the Trial Court.
(vi) The present suit for bare/permanent injunction simpliciter without seeking appropriate/comprehensive reliefs is not maintainable and clearly barred under Section 41(h) of the Specific Relief Act, which reads as under:
"41. Injunction when refused.--
An injunction cannot be granted--(a)xxxx
(b) xxxx
(c) xxxx
(d) xxxx
(e) xxxx
(f) xxxx
(g) xxxx
(h) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust;"
(vii) A perusal of the material on record will clearly indicate that in the facts and circumstances of the instant case, it was incumbent upon the plaintiff to seek appropriate/comprehensive/further reliefs in addition to permanent injunction and the instant suit for bare/permanent injunction simpliciter was clearly barred under Section 41(h) of the Specific
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NC: 2024:KHC:41157 RFA No. 1716 of 2023 Relief Act and has been correctly dismissed by the Trial Court on this ground also.
(viii) The plaintiff is not entitled to place reliance upon the judgment and decree passed in O.S.No.48/2018 in his favour; in this context, it is relevant to state that the said judgment and decree, which is purported to have been passed by invoking the provisions contained in Order 15 Rule 1 CPC is clearly in contravention of the said provisions and necessary ingredients/criteria envisaged in the said provisions have not been fulfilled/satisfied before passing the said judgment and decree, which cannot be relied upon by the plaintiff in support of his claim, which was rightly negatived by the Trial Court.
(ix) A perusal of the judgment and decree dated 12.07.2019 passed in O.S.No.48/2018 will clearly indicate that the plaintiff was bound to deposit the balance sale consideration of Rs.1,38,00,000/- within a period of two months from the date of the decree; in this regard, it is necessary to state that the plaintiff had not placed any material that he had deposited the balance sale consideration in terms of the decree and having regard to the undisputed fact that the plaintiff had only allegedly paid a sum of Rs.12,00,000/- out of the total alleged sale consideration of
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NC: 2024:KHC:41157 RFA No. 1716 of 2023 Rs.1,50,00,000/-, the plaintiff would not be entitled to even claim benefit of the said decree, much less, put forth any claim over the suit schedule property and consequently, the claim of the plaintiff was liable to be rejected on this ground also.
(x) A perusal of the judgment and decree passed in O.S.No.48/2018 will indicate that Order XV CPC had been wrongly invoked by the Trial Court without appreciating that though defendant Nos.7 to 10 therein (defendant Nos.1 to 4 in the present O.S.No.3247/2020) had not filed their written statement, defendant Nos.1 to 6 viz., Mrs. Cornelia and others, who were purported to have supported the claim of the plaintiff had actually disputed his claim in addition to making several allegations against the remaining defendants in their written statement; under these circumstances, the material on record in particular, the written statement filed in O.S.No.48/2018 by defendant Nos.1 to 6 viz., Mrs. Cornelia and others was sufficient to come to the conclusion that there was no warrant/reason for the Trial Court to invoke the provisions contained in Order XV CPC and decree the suit without framing issues or recording evidence and consequently, the Trial Court has come to the correct conclusion that the plaintiff was not entitled to place reliance upon the judgment and decree passed in
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NC: 2024:KHC:41157 RFA No. 1716 of 2023 O.S.No.48/2018 by rightly rejecting his alleged claim over the suit schedule property.
(xi) The contention of the plaintiff that defendant No.5 having purchased the suit schedule property vide sale deed at Ex.D1 dated 08.05.2018 was a pendente lite purchaser having purchased the same during the pendency of the said O.S.No.48/2018, which was decreed in favour of the plaintiff cannot be accepted; it is relevant to state that defendant Nos.1 to 4 herein had not contested the said suit and the defendant Nos.1 to 6 in O.S.No.48/2018, viz., Mrs. Cornelia and others despite having executed registered sale deed dated 19.03.2013 in favour of defendant No.1 herein had consented for the suit in O.S.No.48/2018 to be decreed against them is sufficient to come to the conclusion that the said judgment and decree passed in O.S.No.48/2018 being collusive in nature between the plaintiff and defendant Nos.1 to 6 therein, viz., Mrs. Cornelia and others, Section 52 of the Transfer of Property Act would not be applicable and the same could not be made the basis to hold that defendant No.5 herein was a lis-pendens / pendente lite purchaser or that the said judgment and decree was binding upon him and as such, the claim of the plaintiff was rightly rejected by the Trial Court.
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(xii) A perusal of the judgment and decree passed in O.S.No.48/2018 will also indicate that the Trial Court has directed only Mrs. Cornelia and others, defendant Nos.1 to 6 therein to execute a registered sale deed in favour of the plaintiff and no decree in this regard is passed against defendant Nos.7 to 10 therein (defendant Nos.1 to 4 in the present O.S.No.3247/2020), who have not been directed to join in the execution of the sale deed in favour of the plaintiff; in this context, it is necessary to state that defendant Nos.1 to 4 herein being undisputedly pre-suit purchasers/transferees of the suit schedule property, it was absolutely essential that a decree ought to have been passed against them also in addition to the said Mrs.Cornelia and others as held in various judgments of the Apex Court and this Court including the earliest judgment of the Apex Court in the case of Durga Prasad Vs. Deep Chand - AIR 1954 SC 75 and in the absence of such a direction in the judgment and decree passed in O.S.No.48/2018, the same would not only be invalid, inoperative and non-executable as against defendants herein, but the same would also not be binding upon the defendants including defendant No.5 and viewed from this angle also, the claim of the plaintiff was correctly rejected by the Trial Court.
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12. In so far as the judgments relied upon by both sides are concerned, the same having been rendered in the facts and circumstances of the said cases and in the light of the findings recorded in the peculiar/special facts and circumstances obtaining in the instant case, the said judgments are not elaborately dealt with for the purpose of the present order.
13. In view of the aforesaid facts and circumstances, I do not find any merit in the appeal and the same is accordingly dismissed.
Sd/-
JUDGE SV/BMC