Karnataka High Court
Sri P T Sadashivaiah vs Remco (Bhel) on 14 December, 2023
Author: N S Sanjay Gowda
Bench: N S Sanjay Gowda
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RFA No. 1743 of 2013
C/W RP No. 228 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
R.F.A. No.1743 OF 2013
C/w
R.P. No.228 OF 2011
IN R.F.A.No.1743/2013:
BETWEEN:
1. N.R.NAGARAJ,
S/O LATE RAMEGOWDA,
AGED ABOUT 47 YEARS,
R/AT No.544, 5TH MAIN,
KENGERI SATELLITE TOWN,
BANGALORE - 560 060.
2. G.RAVINDRA REDDY,
S/O LATE G.V.REDDY,
Digitally AGED ABOUT 46 YEARS,
signed by
KIRAN R/AT No.26, 4TH CROSS,
KUMAR R BINNY LAYOUT, 3RD STAGE,
Location:
HIGH VIJAYANAGAR,
COURT OF BANGALORE-560 040.
KARNATAKA
3. P.T.SADASHIVAIAH,
S/O LATE THOTADAPPA,
AGED ABOUT 68 YEARS,
4. N.NANJUNDA,
S/O P.T.SADHASHIVAIAH,
AGED ABOUT 48 YEARS,
BOTH ARE R/AT PATTANAGERE VILLAGE,
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RFA No. 1743 of 2013
C/W RP No. 228 of 2011
KENGERI HOBLI,
BANGALORE SOUTH TALUK,
BANGALORE-560 091. ... APPELLANTS
(BY SRI.SHARATH.S.GOWDA, ADVOCATE)
AND:
1. REMCO (BHEL) HOUSE BUILDING,
CO-OPERATIVE SOCIETY LTD.,
No.364, 5TH MAIN, (RPC) REMCO ROAD,
VIJAYANAGAR II STAGE,
BANGALORE-560 040.
2. SMT. PARVATHAMMA,
W/O P.T.SADHASHIVAIAH,
AGED ABOUT 65 YEARS,
R/AT PATTANAGERE VILLAGE,
KENGERI HOBLI,
BANGALORE SOUTH TALUK,
BANGALORE-560 091. ... RESPONDENTS
(BY SRI.D.R.RAVISHANKAR, SENIOR COUNSEL FOR
SRI.SARAVANA, ADVOCATE FOR R-1;
R-2 IS SERVED AND UNREPRESENTED)
THIS APPEAL IS FILED UNDER SECTION 96 OF CPC,
AGAINST THE ORDER DATED:02.03.2009 PASSED IN
O.S.No.5471/2002 ON THE FILE OF THE XXIV ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY
ALLOWING THE PETITION FILED UNDER ORDER 23 RULE 3.
IN R.P.No.228/2011:
BETWEEN:
1. SRI.P.T.SADASHIVAIAH,
AGE 72 YEARS,
S/O LATE THOTADAPPA,
2. SMT.PARVATHAMMA,
AGED ABOUT 66 YEARS,
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RFA No. 1743 of 2013
C/W RP No. 228 of 2011
W/O P.T.SADASHIVAIAH,
3. SRI.N.NANJUNDA,
AGED ABOUT 43 YEARS,
S/O P.T.SADASHIVAIAH,
ALL ARE R/AT PATTANAGERE VILLAGE,
KENGERI HOBLI,
BANGALORE SOUTH TALUK,
BANGALORE-560 091. ... PETITIONERS
(BY SRI.S.SHANKAR SHETTY, ADVOCATE;
VIDE ORDER DATED:05.06.2018, SRI. NAVEEN G.S.,
ADVOCATE)
AND:
1. REMCO (BHEL) HOUSE BUILDING,
CO-OPERATIVE SOCIETY LTD.,
REGD. OFFICE #364, 5TH MAIN,
RPC (REMCO) ROAD, VIJAYANAGAR,
II STAGE, BANGALORE-560 040
REPRESENTED BY ITS PRESIDENT
SHANKAR G.BELERI.
2. SRI. K.BHARATH KUMAR,
S/O M.KODANDA RAMA,
AGED ABOUT 46 YEARS,
R/AT No.6/1, II CROSS,
K.K.LANE, BEHIND SHANTHALA
SILKS AND SAREES, COTTONPET,
BANGALORE-560 053.
... RESPONDENTS
(BY SRI.D.R.RAVISHANKAR, SENIOR COUNSEL FOR
SRI.SARAVANA, ADVOCATE FOR R-1;
R-2 IS SERVED AND UNREPRESENTED)
THIS PETITION IS FILED UNDER ORDER 47 RULE 1 OF
CPC, PRAYING FOR REVIEW THE ORDER DATED:07.01.2009
PASSED IN RFA.1053/2008 ON THE FILE OF THE HON'BLE
HIGH COURT OF KARNATAKA, BANGALORE.
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RFA No. 1743 of 2013
C/W RP No. 228 of 2011
THIS APPEAL ALONG WITH REVIEW PETITION HAVING
BEEN HEARD AND RESERVED FOR JUDGMENT ON 18.11.2023,
COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
1. Regular First Appeal No.1743 of 2013 is filed challenging the decree that has been passed on the basis of a compromise petition.
BRIEF FACTS:
2. The facts of the case leading up to the filing of this appeal indicates the manner in which the process of the Court is abused by an unscrupulous litigant.
3. On 05.08.2002, Caveat Petition No.3846 of 2002 was filed by P.T.Sadashivaiah, Parvathamma and N.Nanjunda (hereinafter referred to as "the owners" for the sake of brevity and convenience), through their Power of Attorney Holder - K. Bharath Kumar.
4. K. Bharath Kumar stated that the aforementioned three persons were the original owners of the lands bearing Sy.No.24/3 measuring 1 acre and 35 guntas, and Sy.No.17/1 admeasuring 27½ guntas, both situated at -5- NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011 Pattanagere village, Kengeri Hobli, Bengaluru South Taluk, Bangalore District (hereinafter referred to as "the lands/suit properties" for the sake of brevity).
5. It was stated that the aforementioned three persons had sold the lands to the REMCO (BHEL) House Building Co-operative Society Limited (hereinafter referred to as "the Society" for the sake of convenience) under the Agreements of Sale dated 29.04.1984, 27.02.1985 and 15.03.1992, and they had also executed a Power of Attorney dated 11.06.1985 to put the Society in possession.
6. It was stated that the lands had been notified for acquisition in favour of the Society, but ultimately, the Hon'ble Supreme Court had quashed the acquisition proceedings. It was stated that thereafter, the aforementioned owners had executed a Deed of Declaration-cum-Ratification on 14.12.2000 in favour of the Society and it was learnt that they were likely to file a -6- NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011 suit and seek an interim order and hence, the caveat was being filed.
7. It is not in dispute that this Power of Attorney holder i.e., K. Bharat Kumar was the paid Secretary of the Society, which had been arrayed as the respondent in the caveat. In other words, the paid Secretary of the Society filed a caveat petition on behalf of the owners against the Society that had employed him.
8. On 09.08.2002 i.e., four days after the caveat had been filed, a suit came to be filed by the Society for a declaration that the Society had acquired valid right, title and interest over the suit properties.
9. A decree of Permanent Injunction to restrain the owners from interfering with the possession and enjoyment of the suit properties by the Society and its members was also sought.
10. In the plaint, it was admitted that for the purpose of formation of a residential layout, the Society had -7- NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011 purchased the suit properties by way of an Agreement of Sale dated 29.04.1984 from the owners i.e., the defendants.
11. It was stated that the owners had also executed a Power of Attorney in favour of the Society on 28.06.1986 after receiving full consideration. It was stated that the Power of Attorney conferred certain powers on the Society including the power to manage the suit properties. It was stated that thereafter, further agreements dated 27.02.1985 and 15.03.1992 were also entered into between the Society and the owners, and in those Agreements of Sale, the Society had paid additional payments to the owners and the owners had accordingly relinquished their right, title and interest over the suit properties in favour of the Society.
12. It was stated that after taking over the lands and by virtue of conferment of rights, the Society had invested a huge sum of money for the formation of the layout, including laying of the roads, trenches and drainages, and -8- NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011 it had also allotted sites to its members. It was stated that the Society had also executed Sale Deeds in favour of the allottees i.e., its members.
13. It was also stated that in the interregnum, the acquisition proceedings had been initiated by the State for the purpose of acquiring the suit properties for the benefit of the Society, but the acquisition proceedings were challenged and the matter went up to the Hon'ble Supreme Court, wherein the acquisition proceedings that had been initiated came to be quashed, with a direction to restore the possession back to the land owners.
14. It was stated that pursuant to the order of the Hon'ble Supreme Court, though the land owners took formal possession of the suit properties, the de facto possession continued to be with the Society and the Society, in turn, had proceeded to put the allottees in possession of the sites formed in the suit properties. It was stated that the landowners, after having taken formal possession, allowed the Society to be in possession and -9- NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011 also entered into a Deed called 'Declaration-cum- Ratification' on 14.12.2000 and under this deed, the Society was authorised to carry out the acts which had been permitted earlier, and the acts and deeds that had already been done, stood ratified.
15. It was, thus, stated that the Society had acquired not only the ownership, but also the lawful possession and it had also acted upon the Power of Attorney that had been executed by the land owners in its favour.
16. It was also stated that independent of the order passed by the Hon'ble Supreme Court, the Society had acquired rights from the land-owners over the suit properties and their lawful possession continued. It was stated that since they had acquired right, title and interest over the suit properties and they had also executed sale deeds in favour of its members who had, in turn, gotten the khata changed to their respective names, and some of them had also put-up construction, it was clear that they were the owners of the land.
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17. It was stated that the Society had acquired right, title and interest over the suit properties independent of the acquisition proceedings which had been quashed by the Hon'ble Supreme Court. It was stated that the members of the Society, in whose favour the sites have been allotted and sold, had, in turn, acquired the right, title and interest, including possession over the respective sites, and it was not only the Society that had acquired right, title and interest, but also its members.
18. It was stated that the sale deeds executed by the Society in favour of its members were not only legal and valid but also binding on the original owners of the lands. It was also stated that the suit lands had already been converted and they were no longer agriculture lands. It was stated that the landowners, taking undue advantage of the situation despite receiving the full consideration and the additional consideration and after ratifying their agreements, were interfering with their possession and hence, the suit was being filed.
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19. Thus, a plain reading of the plaint averments indicate that the lands had been agreed to be purchased by the Society under the agreements of sale of the years 1984, 1985 and 1992, and the State had also proceeded to initiate acquisition proceedings of these very lands but the acquisition proceedings had been quashed and notwithstanding the quashing of the acquisition proceedings, the Society had independently acquired title over the suit properties on the basis of a deed called Declaration-cum-Ratification Deed executed on 14.12.2000. Thus, in essence, the Society was claiming to have acquired title under unregistered agreements of sale, an unregistered power of attorney and an unregistered Declaration-cum-Ratification Deed and on this basis, they were seeking a declaration that they were the owners of the lands from the Civil Court.
20. The Society, in its plaint, categorically admitted that the acquisition proceedings had been quashed, but nevertheless on the basis of the agreements, it claimed
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NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011 that it had acquired rights, and on the basis of this right, it had proceeded to sell the properties to its allottees. To put it in simple terms, though the Society admitted that it had sold the sites formed on the suit properties to its members, it nevertheless sought a declaration that they were the owners of the properties in the suit.
21. The matter was listed on the 12.08.2002, on which date the matter was adjourned to 14.08.2002 for filing objections by the Caveator. The matter was, thereafter, adjourned to 20.08.2002, 09.09.2002 and 19.10.2002. Though the matter was adjourned to 19.10.2002, at the request of the parties, the matter was preponed to 04.10.2002 and a joint memo was filed. The joint memo reads as follows:
"JOINT MEMO UNDER ORDER 23 RULE 3 C.P.C Both the plaintiff and the defendants submit as follows:-
1. That the Plaintiff society has filed a suit seeking a decree for declaration that the society has acquired valid right,
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NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011 title and interest over the suit schedule land and also for permanent injunction.
2. The defendants had filed caveat petition and the defendants had out in appearance after service of plaint copy, I.A., and Affidavit.
3. At the intervention of well wishers of both the parties, both the parties have agreed for settlement on the following terms and conditions.
4. That there shall be a decree in favour of the plaintiff as prayed for.
5. That the defendants shall not have any objection for change of khata in respect of suit schedule property in favour of plaintiff Society and also in favour of its members who have purchased the sites formed in the suit schedule land.
6. That the defendants have no manner of right, title or interest including possession over the suit schedule land.
7. That the defendants shall not execute any kind of agreement or documents regarding the sale, transfer of the suit schedule land or any portion thereof in favour of any other person.
8. That the plaintiff and its members who have purchased the sites in the suit schedule land shall be free to use, enjoy and deal with the suit schedule land and the sites as the case may be and the defendants shall not have any manner of objection for the same.
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9. Both the parties shall bear their own cost."
22. The Court took the Joint Memo on record, but since the parties were not present, the matter was adjourned to 11.10.2002 for "orders". On 11.10.2002, the matter was adjourned to 30.10.2002 and once again, adjourned to 20.11.2002.
23. On 20.11.2002, the Trial Court proceeded to question Sri.Shankar G. Beleri, the President of the Society. The entire record of the proceedings conducted on 20.11.2002, would be relevant and the same reads as follows:
"20-11-2002 Plaintiff- HK Defendant - Absent Question Or Orders Name: Shankar G.Beleri President of Plaintiff M/s.REMCO (BHEL) House Building Co-operative Society Ltd., Age: 45 years
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NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011 TO COURT QUESTIONS:
I have no idea of the payment of Court Fee made on the plaint.
2. The suit land measures 1 acre 35 guntas and 27-1/2 guntas.
3. When the Power of Attorney was executed by defendants 1, 2 and 3 on 28-6-86, we had given Rs.60,000/- per acre. The land totally measures 1 acre 1 guntas. When the agreement of sale was entered on 29-4-84 we had agreed to purchase at Rs.60,000/-.
4. In 1992 we made additional payment to the defendants at Rs.30,000/- per acre.
After such payment for development and formation of layout, they made an agreement. For this agreement, I state, it was a relinquishment of the rights.
5. After the compromise petition, we have paid the advance sum of Rs.1,05,000/-. The plaintiff stated this answer after pausing for 10 to 20 seconds.
6. In Schedule A and Schedule B lands, totally we have formed 30 or 32 sites, the maximum sites may be 35 sites.
7. The General Power of Attorney executed by the defendant P.T.Sadashivaiah, Smt.Parvathamma and N.Nanjunda, is with my advocate.
8. After the Supreme Court order is passed, we secured the landlords again. They entered into a fresh agreement, based upon the earlier agreements dt:
29-4-84 and 15-3-92. After the
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Supreme Court order, a fresh
agreement was entered into in a sum of Rs.1,05,000/- for both the suit lands.
9. Both the suit lands are converted into non-agricultural.
10. The above record is made in the presence of the advocate for the plaintiff Sri.K.Srinivas for plaintiff's advocate, under Order 23 Rule 1 of CPC read with Order 10 Rule 2 of CPC. In view of the implications, I pass the following:
ORDER The Court fee as paid on the plaint is totally insufficient, which has to be recovered having regard to the market value of the subject matter.
Prima-facie, the suit itself is barred by limitation and hence the question of limitation also requires to be determined. Because, unless a suit is maintainable, being in time, no compromise petition can be recorded.
The plaintiff is directed to produce the order passed by the Hon'ble Supreme Court referred to in para 6 of the plaint and also produce the declaration and agreement dt: 14.12.2000 referred to in para 6 of the plaint and also the original General Power of Attorney executed by the defendants in favour of the plaintiffs.
After such compliance, the Court will pass further orders on the compromise petition.
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NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011 For compliance, by 10-12-2002.
(Dictated to the Judgment Writer in open Court, transcript and Computer printout taken thereof is corrected and signed by me on this the 20th day of November 2022).
Sd/-
(Narendrakumar Gunaki) 24th A.C.C.J., Bangalore
24. As could be seen from this order, the Court observed that the Court Fee paid was insufficient and more importantly, the Court, prima facie, felt that the suit itself was barred by limitation and the question of limitation was required to be determined.
25. It was specifically observed that unless the suit was maintainable and was in time, no Compromise Petition could be recorded.
26. The Court also directed the Society to produce the order passed by the Hon'ble Supreme Court which was referred to in paragraph (6) of the plaint and also to produce the Declaration-cum-Ratification Deed dated 14.12.2000, which was also referred to in the plaint, apart
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NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011 from the original General Power of Attorney executed by the land-owners. It was ordered that after such compliance, the Court would pass further orders on the compromise petition.
27. It is therefore clear that the Court had serious misgivings about the entire manner in which the matter was dealt with. The matter was thereafter adjourned for compliance on 10.12.2002, 13.03.2003, 30.05.2003, 30.06.2003, 04.07.2003 and 14.07.2003, on which day, a receipt was produced for having paid a sum of Rs.3,268/- towards Court Fees.
28. The Court proceeded to pass the following order on 14.07.2003:
"14-7-2003 Petitioner-HK Defendant - Absent For compliance as per orders dated: 20.11.2002 Or For Rejection of plaint Memo along with a receipt is filed for payment of Court fees
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NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011 of Rs.3,268/- on 14.07.2003.
Order A receipt is produced for having credited Rs.3,268/- towards court fee. In the memo it is stated that the suit is valued at Rs.49,000/- under section (c) of the K.C.F. & S.V.Act taking the market value into consideration at Rs.98,000/- and also for permanent injunction under section 26(c).
2. Originally this suit is filed on payment of court fee of Rs.50/-.
With regard to the insufficiency of the court fee the plaintiff was examined under Order 10 of CPC on 20-11-2002 and based on his examination the value of the agreement entered into after the Supreme Court decision is held as Rs.1,05,500/- for both the suit claim. It was ordered to pay the court fee by 10-12-2002, besides the plaintiff to produce the Supreme Court order referred to in para 6 of the plaint and also produce the declaration and agreement dt: 14-12-2000. From the order sheet it is seen that though the matter was adjourned on 10-12-2002, 13-3-2003, 30-5-2003, 30-6-2003, 4- 7-2003 for compliance the same has not been complied. But only today the receipt for Rs.3,268/- is produced. As per the order dt: 20-11-2002 the Plaintiff is liable to pay Court fees of Rs.6,975/-. However, the plaintiff has paid Court Fee of only Rs.3,318/- only. Besides the other direction in the said order is not complied with. In the circumstances, I pass the following:
Order The Plaint is rejected for under valuation.
Consequently the compromise
petition stands rejected.
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RFA No. 1743 of 2013
C/W RP No. 228 of 2011
The order dt: 20-11-2002 shall form part of this order.
No costs. Consign the record. Draw the decree."
29. As could be seen from this order, the Court noticed that the Court Fee paid was insufficient and its earlier direction to produce the order of the Hon'ble Supreme Court, the Declaration Deed dated 14.12.2000 and the original General Power of Attorney, had not been complied with and the Trial Court was, therefore, proceeding to reject the plaint and consequently the Compromise Petition also.
30. On the same day i.e., on 14.07.2003, an application was made at 5:00 p.m. to recall the order, but this application was rejected by the Trial Court.
31. On 18.09.2008 i.e., after more than five years, this order rejecting the plaint on 14.07.2003 was challenged by filing a First Appeal in RFA No.1053 of 2008.
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32. Interestingly, on 16.09.2008, two days before the appeal was filed, a Caveat Petition C.P. No.854/2008 was also filed by the GPA holder i.e., K.Bharat Kumar, the Secretary of the Society. Interestingly, this caveat petition also came to be filed on 16.09.2008 i.e., five years after the plaint was rejected on 14.07.2003 and two days before the appeal was filed on 18.09.2008.
33. The appeal was taken up for consideration on 18.11.2008 and was rejected. However, before the autograph could be signed, a memo was filed by the appellants' counsel to post the matter 'For being spoken to' on the ground that the deficit court fee as noted by the office had already been furnished and a memo to that effect has also been filled in the office on the same day. Since the deficit Court fee had been paid, the office objections were held to be complied with and the order dated 18.11.2008 rejecting the appeal for non-payment of deficit Court fee was recalled.
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34. The appeal was thereafter taken up for consideration on 07.01.2009 and on that day, the delay of 1801 days in filing the appeal was condoned and the following Judgment was rendered:
"Judgment Heard on IA 2 for condonation of delay of 1801 days in filing the appeal. Delay condoned.
As per the submission made by the appellant's counsel which is also conceded by the respondents' counsel, the matter was set in for a compromise at the instance of both the parties. When the matter came up for consideration regarding payment of court fee, although half the court fee is said to have been paid as required, yet the Trial Court has dismissed the suit on technical grounds without allowing the parties to enter into a compromise.
During pendency of the matter, if the parties are ready to compromise then necessarily, payment of court fee would be half of the court fee that is payable in a suit for declaration and injunction and not the full court fee as the matter would be disposed of by way of compromise and not on merits of the case.
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NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011 The observation made in the order dated 20.11.2002 is the plaintiff is liable to pay the court fee of Rs.6,975/-. However, since the plaintiff has paid only Rs.3,318/- the suit came to be dismissed. It is for the trial court to ascertain the market value of the property either on the basis of the case advanced by the plaintiff or if it entertains a doubt, by some other source. After so ascertaining, the trial court ought to have allowed certain time to the plaintiff to pay the court fee if excess court fee is to be paid.
Stating that sufficient court fee has not been paid, without taking into consideration that only 50% of the court fee is to be paid in case of compromise and not the entire court fee, the trial court has rejected the plaint which is erroneous.
In that view of the matter, appeal is allowed. Order of the trial court dated 14.7.2003 is set aside. Matter is remitted back to the trial court for disposal in accordance with law. When the parties have expressed that they are ready to compromise the matter, at the most, it is for the trial court to insist for payment of half the court fee. If any doubt is entertained as to the valuation made, that can be ascertained by summary enquiry and direct the parties to pay the same. Parties to appear
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NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011 before the trial court on 2nd February, 2009. No costs."
35. It may also be stated here that on 30.09.2003, an application was made for return of the unmarked documents, and this application was allowed, and the unmarked documents were directed to be returned by order dated 30.09.2003.
36. Pursuant to the order of this Court, the matter was once again taken up by the Trial Court and on 27.02.2009, the parties were directed to be kept present on 02.03.2009. On 02.03.2009, the following order was passed:
"02.03.2009 P--DRR/SS D1 to 3--GSN It is seen from the record that a petition U/O 23 Rule 3 is pending. When my predecessors was conducting enquiry, the said predecessor raised objections in respect of court fee and rejected the plaint. The matter was taken to Hon'ble High Court in RFA 1053/2008. The Hon'ble High Court allowed the said RFA and the order dated 14.7.2003 passed by this court was set aside and directed this court to dispose the matter as per law.
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NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011 My learned predecessor directed the plaintiff to pay court fee of Rs.6,975/-. The learned counsel appearing for both the plaintiff and defendant submit the plaintiff is ready to pay Rs.6,975/- since the matter was compromised between the parties. They are liable to pay court fee of Rs.3,438/- i.e., half of the court fee.
Heard perused the orders of my learned predecessor and orders passed by the Hon'ble High Court. Both the plaintiff and the defendant came to this court by settling their lis amicably. At this juncture sending them back by raising technical questions does not look proper. After all the court exist to dispense the justice. The learned counsels already paid deficit court fee. Thus 50% of the entire court fee is already deposited. Hence, I proceed to pass the following:
ORDER Both the plaintiff and the defendant are permitted to enter into compromise.
At this juncture the learned counsel for plaintiff and defendant submitted that the compromise petition was already on record. Both the plaintiff and the defendant and their respective counsels present. The G.P.A. holder of defendant one Sri K.Bharath Kumar filed an affidavit stating that his advocate by name Dechamma Bopaiah left this country and settled in abroad. Hence it is not possible for him to get NOC from his previous counsel. Therefore he pray to permit him to appoint new counsel. Therefore he pray to permit him to appoint new counsel. One Sri.Navin G.S. advocate filed vakalath to defendant. The vakalath taken on record.
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NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011 Both the plaintiff and GPA holder of defendant personally present before this Court. This Court personally enquired about terms of compromise petition. Both the plaintiff and the defendant personally submits that after going through the terms of compromise petition with their own will and free consent they agreed the terms and affix their signature to the compromise petition.
Perused the compromise petition. The terms mentioned in the compromise petition seems to be legal. Hence, I proceed to pass the following order:
ORDER The petition filed by the plaintiff and defendant U/O 23 Rule 3 is allowed.
Plaintiff suit is decreed as per the compromise petition.
Office is directed to draw the decree as per the terms of compromise petition.
Both the plaintiff and defendant and their respective counsels are directed to affix their signatures on the order sheet.
Sd/- 02.03.2009 (R.J.Sathish Singh) XXIV ACC & Sessions Judge Bangalore"
37. Thus, the suit filed by the Society against the owners represented by the General Power of Attorney holder i.e., the very Secretary of the Society, was decreed as prayed
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NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011 for and as a consequence, the Society came to be declared as the owner of the suit properties.
38. It may be pertinent to state here that during the interregnum, on 29.10.2004, P.D.Sadashivaiah and S.Nanjunda--defendants 1 and 3 (Appellants 3 & 4 herein) had sold the suit properties to one N.R.Nagaraj and G.Ravindra Reddy--Appellants 1 and 2.
39. It may also be pertinent to state here that in the year 2005, in a contempt petition filed against the Society, the Society clearly admitted that the landowners with whom they had entered into agreements of sale and also a Deed of Declaration cum Ratification, had sold the suit properties in favour of N.R. Nagaraj and G.V. Ravindra Reddy for a consideration of Rs.15,00,000/- on 29.10.2004.
40. It may also be pertinent to state here that in the year 2007, the landowners had also re-deposited the compensation and possession was also redelivered to
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NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011 them by the Special Land Acquisition Officer. Thus, despite being aware of the fact that properties had been purchased by N.R.Nagaraj and G.V.Ravindra Reddy--i.e., appellants 1 and 2 in RFA No.1743 of 2013, the appeal had been filed only against the erstwhile landowners who had no subsisting interest in the properties and without making the purchasers as parties.
41. On 15.06.2011, the landowners filed the instant review petition seeking to review the order dated 07.01.2009 passed in R.F.A. No.1053 of 2008, in which the order rejecting the plaint dated 14.07.2003 had been challenged and same had been set aside and the matter had been remanded to the Trial Court.
42. On 08.09.2011, notice of the review petition was ordered on 24.01.2011, the delay of 860 days in filing the review petition was also condoned.
43. On 06.11.2013, RFA No.1743 of 2013 (the present appeal) was filed challenging the acceptance of the
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NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011 Compromise decree by the Trial Court. This appeal challenging the order dated 02.03.2009 accepting the compromise, is a belated appeal and there is a delay of about 1620 days in filing the appeal.
44. Both the appeal and the review petition have been ordered to be heard together vide order dated 30.01.2023 passed in RFA No.1743 of 2013.
45. Both the Learned Counsel agreed that all the issues involved in the appeal would be addressed together and the same was recorded by the order dated 20.02.2023 (in RFA No.1743 of 2013) and accordingly the delay in filing the appeal, the merits of the appeal as well as the review petition were are heard together.
46. Learned counsel appearing for the landowners and the purchasers i.e., Sri.Sharath S.Gowda, contended that this is a classic case of fraud being played on the court in order to secure a decree which was by itself a nullity in the eye of law and therefore, without even considering any
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NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011 technicalities or intricate questions of law, the appeal is required to be allowed.
47. Learned counsel also contended that the appeal cannot really be said to be barred by time since the appellants were, in the strict sense, not parties in the suit. He contended that since the compromise was accepted on the basis of the statement of a General Power of Attorney holder, who was, in fact, the employee of the Society and in the absence of the appellants. It was also argued that despite a specific direction, the original General Power of Attorney was not produced, and that by itself, would indicate that fraud had been played on the Court.
48. The learned counsel also states that the Society itself had chosen to challenge the rejection of the plaint by filing RFA No.1053 of 2008 after five years and since the delay in that appeal was condoned, the delay in filing of this appeal would also have to be condoned. The learned counsel highlighted the fact that even in RFA No.1053 of 2008, the paid Secretary of the Society had once again
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NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011 entered caveat just before the appeal was filed and he, very curiously, did not oppose the delay and the same was condoned by the Court.
49. He submitted that since the entire process of filing a caveat just two days before the appeal was filed in respect of an order which had been passed five years ago was a clear and an apparent case of collusion, it was clear that fraud had been played on the court and as a result, the delay, if any, in filing this appeal should be condoned.
50. On the merits of the claim, learned counsel contends that the law is well-settled that if a compromise was accepted wrongly, the person aggrieved by the compromise could either prefer an application before the same Court or invoke the remedy of filing an appeal. He submitted that the bar for filing an appeal in case of a compromise decree would arise only when the parties to the compromise accepted the fact that they had signed the compromise petition and had agreed their participation in the acceptance of the compromise. He submitted that this
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NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011 was on the principle that "once parties agree for passing of a decree by consent, they ought not to be permitted to challenge the same". He submitted that since in the instant case, the appellants herein never admitted, let alone accept the fact that a compromise petition was filed, the decisions relied upon the learned Senior Counsel appearing for the Society could be of no avail.
51. He submitted that all the decisions relied upon by the learned Senior Counsel were cases in which the parties did not dispute the execution of the compromise and its presentation before the Court, whereas in the present case, the appellants' clear stand was that they never ever signed the compromise or presented it before the Court.
52. Learned Senior Counsel Sri. D.R. Ravishankar, appearing for the Society contended that the principal reason put forth in the appeal was that the compromise decree was obtained behind the back of the appellants and they were unaware of the compromise until June 2013 when they visited the Bruhat Bengaluru Mahanagara Palike
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NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011 office to inquire about the Khata. It is contended that the appellants had admittedly filed the review in the month of June 2011 seeking review of the order dated 07.01.2009 passed in RFA No.1053 of 2008 and, by that time, the compromise had already been accepted by the Trial Court on 02.03.2009 and therefore, the appellants were guilty of making a false statement.
53. Learned Senior Counsel submitted that the Review Petition was filed on 15.06.2011, by which time the Trial Court pursuant to the order of this Court passed in RFA No.1053 of 2008 had accepted the compromise on 02.03.2009 and it was, therefore, clear that the appellants were aware of the compromise decree being accepted.
54. Learned counsel submitted that in the affidavit seeking condonation of delay in filing the review petition (which had been filed seeking to review the order passed in RFA No.1053 of 2008), it was stated that the appellants became aware of the decree on 10.03.2011, when the officials of the Society came near the suit property and
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NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011 threatened to dispossess them and also disclosed that they had obtained a decree in their favour in O.S. No.5471 of 2002. This averment thereby indicated that they were aware of the decree in June 2011 itself and yet this appeal was filed two years thereafter, on 06.11.2013. He, therefore, contended that there was absolutely no justification to condone the delay of 860 days in filing the review petition.
55. Learned Senior counsel also addressed the Court on merits of the claim. He contended that the appeal had been filed challenging the order accepting the compromise petition, which had been filed under Order XXIII Rule 3 of CPC and since there is indisputably a statutory bar to prefer an appeal against the acceptance of the compromise petition, the present appeal was incompetent.
56. Learned Senior counsel also contended that there were several decisions of the Hon'ble Supreme Court which clearly bar the filing of an appeal against the acceptance of a compromise petition and the
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NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011 consequential drawing up of a compromise decree and therefore, the appeal ought to be rejected as not maintainable. He contended that the appellants, having not chosen to approach the very same Court which had accepted the compromise petition, were estopped from challenging the validity of the compromise decree.
57. Learned Senior counsel also contended that the execution of the General Power of Attorney and the execution of the Declaration-cum-Ratification deed was not at all in dispute and the land-owners by executing this document fundamentally accepted all the obligations that they had incurred, such as, executing the agreement of sale, General Power of Attorney and the Trial Court had committed no error in accepting the compromise petition, which basically affirmed their conduct earlier.
58. Learned Senior counsel sought to contend that the Society had paid large sums of money and had also executed the sale deeds and in light of these indisputable
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NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011 facts, the compromise decree passed by the Trial Court could not be questioned by the appellants.
59. The Learned Senior counsel also sought to contend that the Society was a party to the suits and also the writ petition that had been filed challenging the cancellation of Khata by Bruhat Bengaluru Mahanagara Palike (BBMP), which were litigations of the year 2010 and in those proceedings, the acceptance of the compromise petition had been clearly put forth and despite this, no application was filed for setting aside the compromise decree. He therefore submitted that there was absolutely no justification to entertain the present appeal.
60. The learned counsel submitted that this Court in writ proceedings had reserved liberty to the petitioner--Society to approach the revenue authorities regarding cancellation of the Khata, as against which a writ appeal was filed, which was also dismissed and a clarification application was filed which is still pending. He submitted that since the question of Khata was still pending adjudication before
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NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011 the Hon'ble Supreme Court as well as before this Court (by the application for clarification was filed), it would be inappropriate to entertain this appeal and the appellants should be relegated to the remedy provided under Order XLIII Rule 1-A of CPC.
61. In the light of the arguments advanced, the points that arise for consideration in this appeal are:
a. Whether sufficient cause is made out to condone the delay in filing the appeal and b. Whether the appellants are entitled to prefer an appeal against the acceptance of the compromise petition? and if so, whether the Trial Court was justified in accepting the compromise petition given the facts and circumstances leading to the filing of the suit and the compromise petition?
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NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011
62. As already narrated above, the following facts are not in dispute:
63. On 09.08.2002, the suit was instituted by the Society seeking for declaration and four days before filing of the suit, a caveat petition was filed on the strength of a General Power of Attorney said to have been executed by the land-owners in favour of K.Bharath Kumar, the Secretary of the Society.
64. After the matter was adjourned from time to time and ultimately, to 19.10.2002 for filing of the objections, the matter was preponed to 04.10.2002 and a joint memo was filed. This joint memo was signed by the General Power of Attorney holder of the land-owners i.e., the Secretary of the Society and the President of the Society.
65. Under the terms of the joint memo, the Secretary of the Society i.e., the General Power of Attorney holder of the owners fundamentally conceded for the suit to be decreed as prayed for and also stated that they had no
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NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011 objections for change of Khata and they had no manner of right, title, interest including for handing the possession, over the suit property and the allottees could continue to utilise the sites which had been allotted by the Society.
66. On 04.10.2002, the joint memo was taken on record, but the Court did not accept it and posted the case for questions or orders. On 20.11.2002, the Court proceeded to question the President of the Society and after hearing him, the Trial Court was prima facie of the view that the suit was not maintainable and directed the plaintiff to produce the declaration, the agreement and also the original General Power of Attorney, apart from the orders of the Hon'ble Supreme Court which had been referred to in the plaint.
67. Despite the matter being adjourned on more than one occasion, the direction issued by the Court to produce the documents, were not complied with and only a portion of the Court fee was paid. This resulted in the Court to reject the plaint on 14.07.2003.
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NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011
68. Thus, the joint memo which was initially filed was not accepted by the Court. The direction to produce the original General Power of Attorney so also the declaration and the agreement were also not complied with. It is, therefore, clear that the compromise which was put forth before the Court under Order XXIII Rule 3 of CPC was initially not accepted by the Trial Court and the Trial Court, in fact, proceeded to reject the plaint.
69. Nearly five years thereafter on 18.09.2008, RFA No.1053 of 2008 was filed by the Society challenging the rejection of the plaint. Just a few days before filing of the appeal, a caveat petition was filed by the very same General Power of Attorney holder of the land-owners i.e., the Secretary of the Society. In the proceedings before this Court, no objection was put forth to condone the delay and this Court proceeded to condone the delay of 1801 days and remanded the matter on 07.01.2009.
70. Submissions were made that the parties were ready to compromise the suit and therefore, the payment of half
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NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011 of the Court fee was sufficient and the observations made by the Court that the full court fees of Rs.6,975/- was to be paid was incorrect.
71. This Court took the view that the Trial Court ought to have ascertained the market value of the property on the basis of the case advanced by the plaintiff or if it had entertained a doubt, it could have ascertained the market value and it should have granted certain time to the plaintiff to pay the required court fee. This Court accordingly concluded that the rejection of the plaint by the Trial Court on the ground that only 50% of the Court fee paid was insufficient and therefore, this Court proceeded to set aside the order rejecting the plaint and remitted the matter back to the Trial Court for disposal in accordance with law.
72. This Court made it clear that the if the parties had expressed a desire to settle the matter, it was open for the Trial Court to insist for payment of half of the court fees; if it had entertained a doubt regarding the valuation, it could
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NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011 ascertain the same by holding a summary enquiry and thereafter direct the parties to pay the same.
73. Thus, the only question that was argued and considered by this Court was regarding the sufficiency of the court fees that had been paid and there was no determination regarding the acceptance or otherwise of the compromise petition.
74. Pursuant to this order, the Trial Court proceeded to conclude that the parties had come forward to settle the lis amicably and it would not be appropriate to send them back by raising a technical question and it therefore proceeded to accept the compromise petition which had already been on record.
75. The Trial Court thereafter proceeded to inquire about the terms of the compromise petition and since both the parties stated that they had agreed to the compromise petition on their own will, the same was accepted.
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NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011
76. It is not in dispute that when the compromise petition was accepted, the earlier order dated 20.11.2002 directing the plaintiff to produce the order passed by the Hon'ble Supreme Court, the declaration cum agreement deed dated 14.12.2000 and also the original General Power of Attorney said to have been executed by the defendants (land-owners) in favour of the Society were not complied with.
77. The Trial Court acted upon the joint memo that had been filed and merely proceeded to observe that the same had been accepted and it had directed the drawing up of the decree in terms of the compromise petition. It is therefore clear that this was a compromise petition which was not signed by the defendants, but it was a compromise petition which had been signed by the alleged General Power of Attorney holder of the landowners, who incidentally happened to be an employee of the plaintiff- Society.
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NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011
78. Assuming that a party can appoint an agent to represent him, nevertheless, keeping in mind that the General Power of Attorney holder was admittedly the Secretary of the Society, it can be unhesitatingly held that this was a collusive compromise petition. This becomes obvious when it is noticed that under the terms of the compromise petition, the paid Secretary on behalf of the land-owners conceded that a decree as prayed for be granted in favour of the Society i.e., the Society be declared as the absolute owner of the suit properties.
79. It is not in dispute that there was no registered document executed by the owners conveying the title in favour of the Society. The Society, basically, contended that there had been agreements by which the owners had agreed to sell the property to the Society and certain General Power of Attornies were also executed in their favour. It is also the admitted case of the Society in the plaint itself that the State had initiated acquisition
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NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011 proceedings in favour of the Society and the same had also been quashed by the Hon'ble Supreme Court.
80. Interestingly, even after the quashing of the acquisition proceedings, it was the case of the Society that the landowners had executed a declaration-cum- ratification deed on 14.12.2000 whereby the owners had ratified all the documents that they had entered into prior to the acquisition and the Society had thereby acquired ownership of the suit properties. This declaration-cum- ratification deed was admittedly an unregistered document, and it is on the basis of this unregistered document, the Society was claiming title.
81. It may also be pertinent to notice here that as on the date of this declaration-cum-ratification deed has been executed, the Society had admittedly, already executed sale deeds in favour of its members and it was the plea of the Society that their acquisition of title was independent of the order of the Apex Court which had quashed the acquisition notifications issued in its favour.
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NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011
82. It is therefore clear that the Society was essentially seeking for a declaration that they were the owners of the Society on the basis of an unregistered declaration-cum- ratification deed, in which it was also stated that they had already sold the sites they have formed on the suit properties in favour of its members.
83. It is also clear that though the Society had clearly stated that they had executed sale deeds in favour of its members, the Society nevertheless sought for a declaration that they were the owners of the property. The Trial Court, by acceptance of this compromise petition, has fundamentally declared that the Society was the owner of the suit properties on the basis of an unregistered document, notwithstanding the admitted fact that even according to the Society, it had already been conveyed title to its members and thereby had no subsisting title over the suit properties.
84. Since, admittedly, the landowners were not the parties to this compromise and the original General Power
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NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011 of Attorney, though directed to be produced, was never produced, in reality, the Society basically obtained a decree of declaration on the basis of a concession given by its own Secretary, who was acting on the basis of an alleged General Power of Attorney executed by the owners.
85. The Trial Court, as noticed above, did not initially accept this compromise petition, and had proceeded to reject the plaint itself. For five long years, the Society did not challenge the rejection of the plaint and it chose to file an appeal only in the year 2008. Interestingly, the General Power of Attorney holder i.e., the Secretary of the Society, preferred a caveat just two days before filing of the appeal. This particular conduct of the Society and its Secretary, by itself, clearly exposes the blatant collusion between the two.
86. On 02.03.2009, as stated above, the compromise petition was accepted and two years thereafter, a review was filed. The grounds raised in the review are that the
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NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011 landowners were not parties to the compromise petition and when orders passed by this Court in R.F.A. No.1053 of 2008, fraud had been played on this Court and therefore, the order was required to be reviewed. Thus, in essence about two years after the acceptance of the compromise, the review petition was filed.
87. The delay in filing RFA No.1053 of 2008 was also condoned by this Court on 07.01.2009.
88. Thus, in the petition seeking for review of the order passed by this Court in RFA No.1053 of 2008, the cause shown for the delay in filing the petition was accepted and the delay was condoned.
89. Since, ultimately the compromise petition was accepted pursuant to the order passed in RFA No.1053 of 2008, the delay, if any, in filing the appeal against the acceptance of the compromise, would be superfluous. This is because if the order passed in RFA No.1053 of 2008 is
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NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011 to be reviewed, then automatically the acceptance of the compromise would also stand obliterated.
90. Therefore, the question of delay would not be really of any significance, insofar as the appeal filed challenging the acceptance of the compromise petition.
91. Yet another important factor to be noticed that this is a case in which an unscrupulous litigant has brazenly tried to abuse the process of the Court, by acting in a fraudulent manner.
92. It is well-settled position of law that fraud unravels everything, and no order of a Court can stand if it is obtained by fraud.
93. Since, the compromise decree itself was obtained by the Society by utilising its own Secretary to appear on behalf of the landowners and concede for grant of a decree of ownership in its favor, it is clear that the Society was basically playing fraud on the landowners and was
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NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011 essentially utilizing the process of the Court to deprive the land-owners of their title over the suit properties.
94. The manner in which the Society filed the suit and obtained a decree, is essentially, a situation where a plaintiff files a suit against himself and thereafter concedes that the plaintiff was entitled to a decree. In reality, the suit was filed by the Society against itself, since the defendant was being represented by its very own paid Secretary. This employee, conveniently, conceded for decree being passed in its favour by executing a compromise petition on the basis of the GPA.
95. This kind of blatant fraud that was practiced on the Court fundamentally disentitles the Society from seeking any benefits under the decree. As the conduct of the Society leading upto the filing of the compromise petition and its acceptance is vitiated by fraud, the argument that such a fraudulent decree cannot be disturbed by condoning the delay, cannot be accepted at all and the same is rejected.
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NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011
96. The delay of 1620 days in filing the present appeal is therefore condoned.
97. On the merits of the claim, it is noticed that the Society instituted a suit seeking for a declaration that it had acquired valid right, title and interest over the suit properties. As per the plaint averments, the basis for the claim of ownership was an agreement of sale dated 29.04.1984 and a General Power of Attorney dated 28.06.1986, which was stated to have been executed after the entire sale consideration was paid to the landowners.
98. A further basis for this claim, was the Society had entered into agreements of sale dated 27.02.1985 and 15.03.1992 whereunder additional payments were made and according to the Society, by virtue of these agreements of sale, the land owners relinquished all the right, title and interest over the suit properties.
99. From these plaint averments, it is clear that the Society based its entire claim on the basis of agreements
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NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011 of sale dated 29.04.1984, General Power of Attorney dated 28.06.1986 and agreements of sale dated 27.02.1985 and 15.03.1992. Admittedly, all these agreements are unregistered documents, and they are mere agreements under which no interest was created in the suit properties. Thus, the question of either the Society acquiring title or the landowners relinquishing their rights under these unregistered documents in favor of the Society would never arise. As a consequence, the Society cannot base its claim for title on these documents and it would not also be entitled to seek for a declaration that it has acquired title under these agreements.
100. It is also not in dispute that as per the plaint averments that the very land which are the subject matter of the above-mentioned agreements were also notified for acquisition. It is admitted in the plaint itself that the acquisition was quashed by the Hon'ble Supreme Court with a direction to restore the possession back to the landowners. These averments therefore clearly indicate
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NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011 that the title, if any, which had been passed onto the Society by virtue of the acquisition, also stood nullified and as a consequence, the title stood restored to the land- owners on the direction to restore their possession confirms the fact that the Society also could not retain possession.
101. The Society also admits that the landowners did take formal possession of the land but the de-facto possession continued with them. It is also contended that the Society, in turn, was allowed to be in possession of the sites and the land owners allowed the Society to be in possession by entering into an agreement called Declaration-cum- Ratification Deed dated 14.12.2000. It is also the case of the Society in the plaint that, under this Declaration-cum- Ratification Deed dated 14.12.2000, the Society was authorised to carry on the acts conferred earlier to it and the acts and deeds already done by the Society were ratified.
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NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011
102. Admittedly, this Declaration-cum-Ratification Deed dated 14.12.2000 is also an unregistered document. As already stated above, no right, title or interest over the immoveable property can be transferred under an unregistered document. Therefore, this unregistered Declaration-cum-Ratification Deed dated 14.12.2000 cannot form the basis for the claim of the Society for a declaration to be given that it had title over the suit property. In the light of the admitted averments in the plaint, that the Society had acquired title under unregistered agreements, it is clear that there was absolutely no basis for the claim that the Society had acquired the title over the suit properties.
103. The fact that the Society admitted in its plaint that pursuant to the order of the Hon'ble Supreme Court, the possession was also handed over to them would also indicate that the Society was not in possession of the said lands.
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NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011
104. The Landowners have filed several documents along with a memo in this appeal. One such document is the communication dated 28.08.1997, which reads as follows:
"PÀæ : J¯ïJ¹ : 78 : 87-88 «±ÉõÀ ¸Áé¢üãÁ¢üPÁjUÀ¼ÀªÀgÀ PÀbÉÃj, «±ÉéñÀégÀAiÀÄå PÉÃAzÀæ, 3£Éà ªÀĺÀr, ¨ÉAUÀ¼Æ À gÀÄ, ¢£ÁAPÀ:28-08-1997.
C¢üPÈÀ vÀ YÁ¥À£À ¥ÀvæÀ «µÀAiÀÄ: ¨sÁgÀvÀ ¸ÀªÇÉ ÃZÀÑ £ÁåAiÀiÁ®AiÀÄzÀ J¸ï.J¯ï.¦.£ÀA:3011- 19:95 ¢£ÁAPÀ 21-2-95gÀAzÀÄ DVgÀĪÀ DzÉñÀzÀAvÉ ¨ÉAUÀ¼ÆÀ gÀÄ zÀQët vÁ®ÆèPÄÀ , ¥ÀlÖtUÉgÉ UÁæªÄÀ zÀ ¸À.£ÀA:24:1 gÀ°è 1-33 UÀÄAmÉ «¹ÛÃtð d«ÄãÀ£ÄÀ ß ¨sÆÀ ªÀiÁ°ÃPÀjÃUÉ ©lÄÖPÆÉ qÀĪÀAvÉ G¯ÉèÃR: 1. ¸ÀPÁðgÀzÀ ¥Àvæz À À ¸ÀA.Dgï.r.107. sJPÀÆå©.89, ¢£ÁAPÀ 10-11-95 ªÀÄvÀÄÛ 10-11-96gÀ ªÉÄÃgÉUÉ,
2. ¸ÀPÁðgÀzÀ CAwªÀÄ C¢ü¸ÀÆZÀ£É PÀæ.Dgï.r.11. sJPÀÆå©.85 ¢£ÁAPÀ 30.7.87.
¨sÁgÀvÀ ¸ÀªÇÉ ðÃZÀÑ £ÁåAiÀiÁ®AiÀÄzÀ J¸ï.J¯ï.¦.£ÀA:3011-19:95 ¢£ÁAPÀ:21-02-95gÀAzÀÄ ¤ÃrzÀ wæð£ÀAvÉ gÉªÆ É Ìà (©.ºÉZï.E.J¯ï.) UÀȺÀ ¤ªÀiÁðt ¸ÀºÀPÁgÀ ¸ÀAWÀzÀ ¥ÀgÀªÁV ¨sÆ À ¸Áé¢üãÀUÆ É ArgÀĪÀ ¨ÉAUÀ¼ÀÆgÀÄ zÀQët vÁ®ÆèPÄÀ ¥ÀlÖtUÉgÉ UÁæªÄÀ zÀ ¸À.£ÀA:24:1gÀ°è 0-13 UÀÄAmÉ d«ÄãÀÄ ªÀÄvÀÄÛ ¸À.£ÀA24:3gÀ°è 1-33 UÀÄAmÉ d«Ää£À ¥ÀæzÉñÀªÀ£ÄÀ ß ¨sÀÆ ªÀiÁ°ÃPÀgÁzÀ ²æà n.¸ÀzÁ²ªÀAiÀÄå ©£ï vÉÆÃlUÁAiÀÄå JA§ÄªÀgÄÀ r.r.¸ÀA.599935 ¢£ÁAPÀ 8-8-97 gÀÆ.1,41,900-00 (MAzÀÄ ®PÀëzÀ £À®ªÀvÀÆÛAzÀÄ ¸Á«gÀzÀ MA¨sÊÉ £ÀÆgÀÄ) ªÀiÁvÀæ r.r.AiÀÄ£ÀÄß ªÉʱÀå ¨ÁåAPï D¥sï °«ÄmÉqï, Dgï.«. PÁ¯ÉÃeï D¥sï JAf¤AiÀÄjAUï, ¨ÉAUÀ¼Æ À gÀÄ- 59gÀ ¨ÁæAZï, ¨ÉAUÀ¼Æ À gÀÄgÀªÀjAzÀ ¥ÀqÉ¢gÀĪÀ F C¢üPÈÀ vÀ eÁÕ¥À£ÀªÅÀ ªÀÄÄAzÉ £ÁåAiÀiÁ®AiÀÄzÀ ¸ÀPÁðgÀªÅÀ «¢ü¸À§ºÀÄzÁzÀ §rØ ªÀUÊÉ gÉ §UÉÎ ¤§AzsÀ£ÉUÉ M¼À¥ÀlÄÖ ¥ÀvæÀ ¤ÃqÀ¯ÁVzÉ.
¸À»/-30.08.97 «±ÉõÀ ¨sÆ À ¸Áé¢üãÁ¢üPÁjUÀ¼ÀÄ ¨ÉAUÀ¼Æ À gÀÄ f¯Éè, ¨ÉAUÀ¼ÆÀ gÀÄ
- 56 -
NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011 UÉ, ²æà n.¸ÀzÁ²ªÀAiÀÄå ©£ï vÉÆÃlUÀAiÀÄå ¥ÀlÖtUÉgÉ UÁæªÄÀ , PÉAUÉÃj ºÉÆç½, ¨ÉAUÀ¼ÀÆgÀÄ zÀQët vÁ®ÆèPÀÄ, ¥ÀæwAiÀÄ£ÀÄß:
1. «±ÉõÀ ¨sÀƸÁé¢üãÁ¢üPÁjUÀ¼ÄÀ , ¨ÉAUÀ¼Æ À gÀÄ f¯Éè gÀªÀgÀ ªÀiÁ»wUÁV,
2. vÀºÀ¹Ã¯ÁÝgï, ¨ÉAUÀ¼Æ À gÀÄ zÀQët vÁ®ÆèPÀÄ, ¨ÉAUÀ¼ÆÀ gÀÄ gÀªÀgÀ ªÀiÁ»wUÁV,
3. gɪÉÆÌà (©.ºÉZï.E.J¯ï.) UÀȺÀ ¤ªÀiÁðt ¸ÀºÀPÁgÀ ¸ÀAWÀ, ¸ÀA.304, ªÀÄÄRå gÀ¸ÉÛ, gɪÆÉ Ìà ¯ÉÃOmï, ¨ÉAUÀ¼ÆÀ gÀÄ gÀªÀgÀ ªÀiÁ»wUÁV, ¸À»/-30.08.97 «±ÉõÀ ¨sÆÀ ¸Áé¢üãÁ¢üPÁjUÀ¼ÀÄ ¨ÉAUÀ¼Æ À gÀÄ f¯Éè, ¨ÉAUÀ¼Æ À gÀÄ"
105. The contents of this document indicate that the landowners had deposited a sum of Rs. 1,41,000/- by way of demand drafts pursuant to the order of the Supreme Court and hence possession was to restored to them.
106. Another Communication dated 09.10.2002 addressed by the Society in favour of the Principal Secretary of the Revenue Department has been produced, which reads as under:
"gÉAPÉÆà (©.ºÉZï.E.J¯ï.) UÀȺÀ ¤ªÀiÁðt ¸ÀºÀPÁgÀ ¸ÀAWÀ ¤AiÀÄ«ÄvÀ Remo (BHEL) House Building Co-operative Society Ltd.
(Regd.No.B/ARBI/R.I.W.H.C.S/1640/69-70) No.364, 5th Main, RPC (Remo) Layout, Vijayanagar, 2nd Stage Bangalore -560 040
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NC: 2023:KHC:45622
RFA No. 1743 of 2013
C/W RP No. 228 of 2011
Ph:3357895
Our Ref.No. .....
Date:09.10.2002.
gÀªÀjU,É
ªÀiÁ£Àå ¥ÀæzsÁ£À PÁAiÀÄðzÀ²ðUÀ¼ÄÀ , PÀAzÁAiÀÄ E¯ÁSÉ, PÀ£ÁðlPÀ ¸ÀPÁðgÀzÀ ¸ÀaªÁ®AiÀÄ-2 qÁ:CA¨ÉÃqÀÌgï «¢ü ¨ÉAUÀ¼ÀÆgÀÄ-560 001.
ªÀiÁ£ÀågÉÃ, «µÀAiÀÄ: ¨sÆ À ¸Áé¢üãÀ £ÀqÀªÀ½PÉUÀ¼ÄÀ ¸ÀªÇÉ ðÃZÀÑ £ÁåAiÀiÁ®AiÀÄzÀ J¸ï.J¯ï.¦. £ÀA.3011- 19:95gÀ DzÉñÀzÀAvÉ gÀzÁÝVgÀĪÀ §UÉÎ.
G¯ÉèÃR: PÀA.E.107, ¨sÆ À ¸Áé¨É 89 ¢£ÁAPÀ: 30.09.2002
----------
ªÉÄîÌAqÀ «µÀAiÀÄPÉÌ ¸ÀA§A¢ü¹zÀAvÉ, ¨ÉAUÀ¼Æ À gÀÄ zÀQët vÁ®ÆèPÀÄ PÉAUÉÃj ºÉÆç½, ¥ÀlÖtUÉgÉ UÁæªÄÀ zÀ°è 58 JPÀgÉ 35 UÀÄAmÉ d«ÄãÀ£ÄÀ ß ¨sÆ À ¸Áé¢üãÀ E¯ÁSÉAiÀÄÄ ¸ÀPÁgÀzÀ CAwªÀÄ C¢ü¸ÀÆZÀ£É £ÀA.Dgï.r.11, ¨sÆ À ¸Áé¨É 85, ¢£ÁAPÀ:30.07.1987 gÀ£ÀéAiÀÄ £ÀªÄÀ ä ¸ÀAWÀzÀ ¥ÀgÀªÁV ¨sÆ À ¸Áé¢üãÀ ¥Àr¹vÀÄÛ. DzÀgÉ, ¨sÁgÀvÀzÀ ¸ÀªÇÉ ðÃZÀÑ £ÁåAiÀiÁ®AiÀĪÀÅ J¸ï.J¯ï.¦.£ÀA.3011- 19:95, ¢£ÁAPÀ: 21-02-1995gÀAzÀÄ ¸ÀzÀjà ¨sÆ À ¸Áé¢üãÀ ¥ÀæQæAiÉÄ PÀæªÀħzÀÞªÁV®èªÉAzÀÄ gÀzÄÀ Ý¥Àr¹. £ÀªÄÀ ä ¸ÀAWÀzÀ ¥ÀgÀ ¸Áé¢üãÀªÁVzÀÝ d«ÄãÀÄUÀ¼À£ÄÀ ß ¨sÆ À ªÀiÁ°ÃPÀgÄÀ UÀ½UÉ »A¢gÀÄV¸ÀĪÀAvÉ DzÉñÀ ¤ÃrvÀÄÛ.
¸ÀzÀjà ªÁådåzÀ°è ¸ÀAWÀªÅÀ PÀÆqÀ ¥ÀæwªÁ¢AiÀiVzÀÄÝ, F DzÉñÀªÀ£ÀÄß C£ÀĵÁ×£ÀPÌÉ vÀgÄÀ ªÀ ºÉÆuÉ ¸ÀAWÀzÀ ªÉÄðgÀĪÀÅzÀjAzÀ, £ÀªÄÀ ä ¸ÀAWÀªÅÀ AiÀiÁªÀÅzÉà zÀÄgÀÄzÉÝñÀ¢AzÀ £ÁåAiÀiÁ®AiÀÄzÀ DzÉñÀªÀ£ÁßUÀ°Ã CxÀªÁ ¸ÀPÁðgÀzÀ ¤zÉðñÀ£ÀªÀ£Áß°Ã G®èAX¹®èªÉAzÀÄ F PɼÀPÀAqÀAvÉ ¸ÀªÀÄeÁ¬Ä¶AiÀÄ£ÀÄß ¤ÃqÀ°aѸÄÀ vÉÛãÉ.
«±ÉõÀ ¨sÆÀ ¸Áé¢üãÁ¢üPÁjUÀ¼ÄÀ £ÁåAiÀiÁ®AiÀÄzÀ°è zÁªÉ ºÀÆr®èzÀ J¯Áè ¨sÆ À ªÀiÁ°ÃPÀjUÀÄ ¸ÀºÀ £ÀA.J¯ï.J.¹.80:87-88 ¢£ÁAPÀ 21-01-1997 gÀAzÀÄ w¼ÀĪÀ½PÉ ¥ÀvÀæªÀ£ÄÀ ß ¤Ãr d«ÄãÀ£ÀÄß ¸Áé¢üãÀ ¥Àr¹PÉÆAqÀÄ vÉUÉzÄÀ PÉÆArzÀÝ ºÀtªÀ£ÄÀ ß
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NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011 ¨sÀÆ ªÀiÁ°ÃPÀjAzÀ r r ªÀÄÆ®PÀ »AzÀPÌÉ ¥ÀqÉzÄÀ ¨sÁgÀvÀzÀ ¸ÀªÉÇðÃZÀÑ £ÁåAiÀiÁ®AiÀÄzÀ wæð£ÀAvÉ £ÀªÄÀ ä ¸ÀAWÀzÀ ¥ÀgÀªÁV ¨sÀÆ ¸Áé¢üãÀªÁVgÀĪÀ d«ÄãÀÄUÀ¼À£ÄÀ ß ¸ÀzÀjà ¨sÆ À ªÀiÁ°ÃPÀgÀÄUÀ½UÉ »AA¢gÀÄV¹ d«Ää£À ¥ÀÆtð MqÉvÀ£ÀªÀ£ÄÀ ß ¨sÀÆ ªÀiÁ°ÃPÀjUÀ½UÉ »A¢gÀÄV¹ d«Ää£À ¥ÀÆtð MqÉvÀ£ÀªÀ£ÀÄß ¨sÆ À ªÀiÁ°ÃPÀgÄÀ UÀ½UÉ FUÁUÀ¯Éà ¤ÃrgÀÄvÀÛzÉ. F §UÉÎ £ÀA§A¢ü¹zÀ zÁR¯ÁwUÀ¼À£ÄÀ ß F ¥Àvæz À ÆÉ A¢UÉ vÀªÄÀ ä CªÀUÁºÀ£ÉUÁV ®UÀwÛ¸À¯ÁVzÉ.
vÀzÀ£ÀAvÀgÀ, «±ÉõÀ ¨sÀÆ ¸Áé¢üãÁ¢üPÁjUÀ¼ÄÀ £ÀAJ¯ï.J.¹.83:87-88 ¢£ÁAPÀ:07.08.1997gÀ C¢üPÈÀ vÀ YÁ¥À£À ¥ÀvÀæzÀ ¤zÉðñÀ£ÀzÀAvÉ J®è d«ÄãÀÄzÁgÀgÄÀ vÀªÄÀ ä vÀªÄÀ ä d«ÄãÀÄUÀ¼À SÁvÉAiÀÄ£ÀÄß PÀAzÁAiÀÄ E¯ÁSÉAiÀÄ°è CªÀgÀªÀgÀ ºÉ¸ÀjUÉ ªÀUÁðªÀt ªÀiÁr¹PÉÆAqÀÄ d«Ää£À MqÉvÀ£ÀªÀ£ÀÄß ¨sÆ À ªÀiÁ°ÃPÀgÀÄUÀ¼Éà ºÉÆA¢gÀÄvÁÛgÉ. F §UÉÎ ¸ÀA§A¢ü¹zÀ zÁR¯ÁwUÀ¼À£ÄÀ ß F ¥Àvæz À À dÆvÉ ®UÀwÛ¸À¯ÁVzÉ.
CzÀÝjAzÀ £ÀªÄÀ ä ¸ÀAWÀªÅÀ ¸ÀªÇÉ ðÃZÀÑ £ÁåAiÀiÁ®AiÀiÁzÀ DzÉñÀªÀ£ÀÄß G®èAX¹®èªÉAzÀÄ w½¸À°aѸÄÀ vÉÛãÉ.
ªÀAzÀ£ÉUÀ¼Æ É A¢UÉ, vÀªÄÀ ä «±Áé¹, DqÀ½vÀ ªÀÄAqÀ½AiÀÄ C¥Ààt ªÉÄÃgÉUÉ, ¸À»/-
CzsåÀ PÀëgÄÀ ."
107. As could be seen from this document, the Society undertook to abide by the orders of the Supreme Court and the directions issued by the State Government. The Society has also acknowledged the fact that it had obtained the amount deposited by the landowners before the SLAO and had also restored possession of the landowners. It has also stated unequivocally that it had
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NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011 complied with the direction of the SLAO and the title of the landowners had been restored and they were at liberty to make out Khatas in their respective names.
108. Thus, as on 09.10.2002, the Society unequivocally admitted that the title to the lands stood restored to the landowners and that they had essentially complied with the orders of the Apex Court. In this light of this communication, the assertion that they acquired title over the land by means of the Declaration cum ratification deed dated 14.12.2000 would fall to the ground.
109. It is to be noticed that the Declaration cum Ratification Deed was dated 14.12.2000 i.e., nearly two years prior to the communication of the Society dated 09.10.2002 and by virtue of this communication, the Society itself was declaring that it had no rights whatsoever over the lands which had been notified in its favour, which admittedly, included the suit properties. In the light of this communication, the entire basis of the Society's claim that it had title and therefor it was entitled
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NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011 for a declaration from the Civil Court would stand obliterated.
110. This communication, in fact, proves that the suit which had been filed on 09.08.2002 contending that it was still in possession and it still possessed title over the property was a false claim.
111. It may also be stated here that the land-owners have also produced Indemnity Bond dated 23.08.2004, in which the Society has acknowledged that it had requested the amount deposited by them towards land cost be refunded to them and in that regard the Society was executing an indemnity bond to receive the amount of Rs.36,21,794/-, it had deposited.
112. The Indemnity Bond also contains a recital that the Society agrees with the Government when there was no dispute about the refund of the deposited amount, and it also declares that it would honour any litigation that may arise in respect of future litigation regarding the deposit.
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NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011 This Indemnity Bond acknowledges the fact that the Society has also taken back the amount it had deposited towards the acquisition.
113. It is to be noticed here that after executing this indemnity bond in the year 2004, the appeal in RFA 1053/2008 was preferred in the year 2008 challenging the rejection of the plaint. This also indicates that the Society was suppressing the fact that it had received the compensation amounts and it continued to plead that it had title over the properties and that the landowners had agreed for the Society to enjoy the ownership over the lands.
114. In my view, this reprehensible conduct of the Society in suppressing material facts and using a General Power of Attorney it had obtained from the land owners earlier to abuse the process of the Court and obtain a decree disentitles it from the grant of any relief. It is clear from the above documents that the Society has repeated made
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NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011 false statements deliberately with a view to secure a decree and such an attempt cannot be permitted.
115. It may also be pertinent to state here that as per the counter-affidavit dated 02.08.2006 filed by the Society before the Hon'ble Supreme Court in Contempt Petition Nos.224-26 of 2005, the President of the Society stated that the landowners had concealed the material fact that on 29.10.2004, a sale deed had been executed in respect of the schedule property bearing Sy.No.24/1 to one N.R.Nagaraj and G.V.Ravindra Reddy.
116. As per this affidavit of 2006 itself, the Society was aware that Sy.No.24/1 had been sold and yet in the appeal which was filed on 18.09.2008, the purchasers were not impleaded or sought to be impleaded. This indicates that knowing fully well that the land already been transferred in favour of N.R.Nagaraj and G.V.Ravindra Reddy, the Society essentially wanted to secure the order behind their back.
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NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011
117. These set of facts, which are not in dispute, clearly establish that the Society had instituted the suit by deliberately making false statements with the sole purpose of securing a collusive decree.
118. The fact that a caveat was filed just a couple of days before filing of the suit by its own Secretary on the strength of a General Power of Attorney and very conveniently, the Secretary conceded for a decree being passed as prayed for, establish without a shadow of doubt that it was the intent of the Society to secure a decree at any cost.
119. The further fact that the Society preferred an appeal after nearly five years and coincidentally, the caveat was also filed just a few days before the appeal was filed, also established that the order that had been obtained in RFA No.1053 of 2008 was one of result of collusion.
120. If a Society engages in a litigation by making statements which are blatantly false with the sole intention
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NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011 of claiming title, when they had themselves acknowledged to the State that they possessed no title and the title stood restored to the land owners and that may be permitted to obtain the amount deposited by them towards land cost, establishes that they have acted in the most unethical manner and therefore, do not deserve any discretion to be exercised in their favour.
121. In the normal course, after having concluded that the decree was obtained without the consent of the defendants i.e., the appellants herein, the Court would have remanded the matter for a trial to be conducted on the merits of the claim. However, in the face of the aforementioned facts, which are not in dispute at all, and it clear that a brazen attempt was made by the Society to abuse the process of the Court, this Court is of the view that it would be appropriate to consider the entire material on record and nip an illegitimate claim at the very bud.
122. It should also be kept in mind that if the matter is to be remanded for a trial on merits, in the background of
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NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011 the manner in which the process of the Court is sought to be abused by the Society, it would basically be permitting an unscrupulous litigant to abuse the process of the Courts and would tantamount to granting them an opportunity to make a virtue out of their vice.
123. There is yet another factor to be considered. In this appeal, the Society produced the following nine documents:
Sl.
Particulars of the documents No. 1 GPA dated 14.12.2000;
2 Declaration-cum-ratification deed dated 14.12.2000;
3 Agreement dated 15.03.1992;
4 Vouchers receipts;
5 GPA dated 11.06.1985;
6 GPA dated 14.08.1984;
7 Agreement dated 29.04.1984;
8 Final Settlement dated 08.11.1984 9 Agreement dated 27.02.1985;
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NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011
124. By a letter dated 21.11.2022, the original documents were referred to the Hand-Writing expert at the Forensic Science Laboratory, Madiwala, Bengaluru (FSL). The Laboratory submitted the report after the judgment had been reserved stating that the signatures found in the documents are found to be written by one and the same person in the usual form executions.
125. The report was made available to the learned counsel and the owners have filed objections to the said Report.
126. It has to be stated here, assuming that the documents that the land owners had executed the General Power of Attorney and Declaration-cum-Ratification Deed, the fact remains that on the acquisition proceedings being quashed, the title stood restored to the land-owners and unless there was a conveyance of title by way of a registered instrument, the documents upon which reliance has been placed by the Society to claim title would be of no consequence. The Forensic Report, even if were to be accepted, does not alter the basic fact that a suit for
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NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011 declaration has been decreed by consent of the paid Secretary of the Society and the entire claim for a declaration of title was on the basis of an un-registered agreement. It is, therefore, clear that the FSL report would be really of no consequence in the given facts and circumstances of the present case.
127. The learned senior counsel places strong reliance on the judgment rendered by the Hon'ble Apex Court in Shanti Budhiya Vesta Patel and others vs. Nirmala Jayaprakash Tiwari and others - (2010) 5 SCC 104, to contend that a compromise decree obtained on the basis of a General Power of Attorney executed by the defendants could not be recalled or challenged by the Principal. It is, no doubt, true that a person is entitled, in law, to engage any person or his agent and such an agent can enter into a compromise on his behalf. However, in a case of this nature, where the decree of declaration is passed by consent of an employee of the plaintiff and the basis for that decree of declaration is an unregistered
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NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011 declaration-cum-ratification deed, it is obvious that the said decision relied upon cannot be applicable to the present case.
128. In the case decided by the Hon'ble Supreme Court, the execution of the General Power of Attorney had been admitted and it was urged that the appellants therein were forced to sign the terms of the consent. Such is, however, not the situation prevailing in this case.
129. Learned senior counsel places reliance on the decisions rendered by the Hon'ble Apex Court in M/s.Sree Surya Developers And Promoters vs. N.Sailesh Prasad and others- (2022) 5 SCC 736, in which the judgments rendered by the Apex Court in the case of Pushpa Devi Bhagat vs.Rajinder Singh - (2006) 5 SCC 566, Banwari Lal vs. Chando Devi (Smt) (Through LRs) and another-(1993) 1 SCC 581, Trilok Nath Singh vs. Anirudh Singh - 2020 6 SCC 629, were considered and the Hon'ble Apex Court held that the Trial Court was justified in rejecting the plaint on the ground
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NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011 that it has been filed challenging the compromise decree and such a suit was not maintainable.
130. The argument that the appeal itself is not maintainable since the appeal is directed against a consent decree cannot aslo be accepted in the present case.
131. As already stated above, the Society had filed the suit in which its own Secretary had entered appearance as a General Power of Attorney holder of the defendants and had conceded for the said decree.
132. The owners, who had been arrayed as respondents, had preferred an appeal contending that fraud had been played on the Court and such a decree could not have been passed by consent.
133. Since the alleged consent is strongly disputed and it has been established that the paid Secretary of the plaintiff--Society had himself conceded to the decree, it is obvious that Section 96(3) of the Civil Procedure Code would not be applicable to a case of such nature.
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NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011
134. Similarly, the ratio laid down in M/s.Sree Surya Developers And Promoters is that a suit cannot be filed challenging the compromise decree. This is, however, an appeal which is filed challenging the compromise decree obtained by fraud. It is, therefore, clear that the said decision is also not applicable.
135. I am, therefore, of the view that this is an appropriate case where litigation has to be nipped in the bud. Consequently, the appeal is allowed and the plaint stands rejected as being devoid of a cause of action, as evidenced by the plaint averment itself.
136. Since there is absolutely no cause of action for filing of the suit and title cannot be declared in favour of the plaintiff on the basis of the unregistered agreements of sale, in my view, having regard to the fact that the Society has clearly attempted to take this Court as well as the Trial Court for a ride, it would be appropriate to impose a cost of Rs.1,00,000/- (Rupees one lakh only) payable to the appellants herein and it is so ordered.
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NC: 2023:KHC:45622 RFA No. 1743 of 2013 C/W RP No. 228 of 2011
137. In light of the judgment rendered in this appeal, it would be a superfluous exercise to review the order passed in R.F.A. No.1053 of 2008.
138. It is to be stated here that since pursuant to the order passed in R.F.A. No.1053 of 2008, the Trial Court has proceeded to accept the compromise petition and dispose of the suit in terms of the compromise petition and the order passed by the Trial Court pursuant to the said order has been set aside by the allowing of R.F.A. No.1743 of 2013. It would be unnecessary to consider the review petition and is, accordingly, disposed of.
Sd/-
JUDGE RK CT:SN