Karnataka High Court
Dr Manmohan Attavar vs Smt Lakshmamma on 8 January, 2025
Author: K Natarajan
Bench: K Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
REGULAR FIRST APPEAL NO. 618 OF 2014
BETWEEN:
DR. MANMOHAN ATTAVAR
S/O MUTHAPPA,
SINCE DECEASED BY HIS LRS
1(a) ARTHUR SANTOSH ATTAVAR
S/O LATE DR. MANMOHAN ATTAVAR,
AGED ABOUT 50 YEARS,
R/AT NO.580, 10TH CROSS,
2ND MAIN, J P NAGAR,
3RD PHASE, BENGALURU - 560 078.
1(b) JANE RUHAMA RASHMI ATTAVAR
D/O LATE DR. MANMOHAN ATTAVAR,
AGED ABOUT 46 YEARS,
R/AT NO.38/1, 30TH CROSS,
3RD MAIN, 7TH BLOCK, JAYANAGAR,
BANGALORE - 560 082.
...APPELLANTS
(BY SRI. ANIL KUMAR SHETTY, ADVOCATE)
AND:
1 . SMT LAKSHMAMMA
W/O MADAPPA @ MADAIAH
AGED ABOUT 73 YEARS,
2 . SMT. NAGAMMA
W/O VENKATACHALAPPA,
AGE: MAJOR,
3 . SMT. NAGARATHNAMMA
W/O HANUMANTHAIAH,
AGE: MAJOR
2
4 . ADILAKSHMI
W/O NANJAPPA
AGED ABOUT 48 YEARS,
5 . ADIMURTHY
S/O MADAPPA
AGED ABOUT 39 YEARS
6 . LAKKANNA
S/O MADAPPA
AGED ABOUT 37 YEARS
7 . KUM. JYOTHI
D/O MADAPPA
AGED ABOUT 33 YEARS
8 . KUM. GEETHA
D/O MADAPPA
AGED ABOUT 23 YEARS
ALL ARE R/AT NO.326,
FLOUR MILL ROAD
CHANNASANDRA LAYOUT
UTTARAHALLI HOBLI
SUBRAMANYAPURA POST
BANGALORE - 560 061.
...RESPONDENTS
(BY SRI. LAXMINARAYANA V., SENIOR COUNSEL FOR
SRI. BALARAJ M V., ADVOCATE FOR C/R5, AND R3 TO R8
(VAKALATH FILED)
VIDE ORDER DATED:22/7/21, NOTICE TO R2 IS HELD-
SUFFICIENT)
THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 26.3.2014 PASSED IN
O.S.NO.2952/2008 ON THE FILE OF THE XVIII ADDL. CITY CIVIL
AND SESSIONS JUDGE, BANGALORE, DISMISSING THE SUIT FOR
PERMANENT INJUNCTION.
THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 18.12.2024 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
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RESERVED FOR ORDERS ON: 18.12.2024
PRONOUNCED ON : 08.01.2025
CORAM: HON'BLE MR. JUSTICE K NATARAJAN
CAV JUDGMENT
This appeal filed by the deceased plaintiff/appellant under Section 96 of CPC, for setting aside the judgment of the Addl. City Civil and Session Judge, Bangalore, herein referred as trial court in OS.No.2952/2008 dated 26.03.2014, for having dismissed the suit of the plaintiff.
2. Heard the arguments of leaned counsel for the appellant and respondent. The ranks of the parties before the trial court retained for the sake of convenience.
3. The case of the plaintiff before the trial court is that, the plaintiff filed the suit for perpetual injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the suit schedule property bearing Sy.No.203 measuring 4 acres 11 guntas including 20 guntas of kharab situated at Haligevaderahalli village, Kengeri hobli, Bangalore south taluk, herein after referred as suit schedule property from 4 alienating or creating any third party interest and receive any compensation from BDA in respect of acquisition of suit schedule property.
4. The further case of the plaintiff is that plaintiff is a renowed agri-horticulturist since 1968. One Madaiah @ Madappa was the khatedar of suit schedule property and being the kartha of the joint family, for himself and on defendant Nos.5 to 8 had entered into agreement of sale on 03.05.1991 and the plaintiff aggreed to purchase the suit schedule property for sum of Rs.6,04,000/- and paid Rs.3,22,000/- as advance amount and it was agreed to execute the sale deed within one month from the date of the property is released from the acquisition by the BDA. The plaintiff was put in possession, the said Madaiah @ Madappa executed the GPA on 31.05.1991, authorising the plaintiff to do all deeds for the purpose of getting denotifying the property from BDA. The said Madaiah @ Madappa died on 16.10.1997, by leaving behind defendant Nos.1 to 8. The 1st defendant said to be issued 5 notice to the plaintiff by asserting they are in possession of the suit schedule property. The plaintiff is in possession of the suit schedule property under agreement of sale and sale deed should be executed within one month from date of denotification. Therefore, suit came to be filed for seeking injunction.
5. The defendant No.2 placed ex-parte.
6. The defendant Nos.1, 3 to 8 filed written statement contending that the suit is not maintainable and further denied that the agreement of sale and receipt of any advance amount from the plaintiff, they also denied GPA executed by Madappa in favour of the plaintiff. It is contended that plaintiff misused the illiteracy and poverty and forged the documents and denied the entire averment in the plaint and contended that the defendants are in possession and enjoyment of the property. The defendant came to know that the plaintiff trying to get the land denotified before BDA has issued legal notice through their counsel. Hence, prayed for dismissal of the suit. 6
7. Based upon the pleadings the trial court framed the following issues;
1) Whether the plaintiff proves that he is in lawful possession and enjoyment of the suit schedule property on the basis of alleged agreement of sale said to be executed by the husband of first defendant?
2) Does the plaintiff proves that the defendants are interfering with his peaceful possession and enjoyment of the suit schedule property?
3) Does the plaintiff prove that the defendants are trying to alienate the suit schedule property?
4) Does the plaintiff prove that the defendants are attempting to receive compensation to be awarded by BDA?
5) What order or decree?
8. To prove the case, the plaintiff examined his GPA holder as PW.1 and got marked 30 documents as Ex.P.1 to 30. And on behalf of the defendants, 5th defendant 7 examined as DW.1 and got marked 18 documents as Ex.D.1 to 18. After hearing the arguments the trial court answered the issue Nos.1 to 4 in the negative and ultimately dismissed the suit of the plaintiff by impugned judgment. Being aggrieved by the same, the plaintiffs have filed this appeal.
9. The counsel for the appellant also filed an Interlocutory Application under Order XLI Rule 27 of CPC., along with affidavit of witness Praveen Kumar, who is attesting witness to the alleged sale. It is contended by the appellant counsel that the trial court dismissed the suit holding that the plaintiff failed to prove the agreement of sale by examining the attesting witness. Therefore now he wants to examine the attesting witness as additional evidence. The said witness not able to examine before the trial court, therefore his evidence is produced as additional affidavit. Hence, prayed for allowing the Interlocutory Application. 8
10. The learned counsel for the appellant further contended that the plaintiff running nursery. The government issued the preliminary notification in 1988, the final notification issued on 09.04.1994. The agreement of sale was entered between them on 03.05.1991. From 1991 to 2008 the plaintiff was in peaceful possession and enjoyment of the suit schedule property but the defendant trying to interfere. The defendant Nos.1 to 4 not came before the court, only the 5th defendant examined as DW.1, he has not specifically denied the execution of agreement of sale and putting the plaintiff in possession, he has ignorance of the fact. There is no denial of execution of document and he has stated that he do not know about the same. The sister of the defendant's father filed a suit for partition which is a collusive suit by suppressing the notification of the BDA. As per the clause 6 and 9 of the agreement one month time is granted for execution of sale deed after denotification, if the denotification is not issued the sale deed cannot be 9 executable, amount has to be repaid. The plaintiff is in successful possession by proving the possession over the property. Therefore, he can put up the possession by filing the suit against the trespasser. The plaintiff also produced document regarding income tax clearance which was not considered by the trial court. Therefore until the property denotified by the government for BDA the appellants are protecting the property and hence prayed for allowing the appeal and to decree the suit.
11. The senior counsel appearing for the respondent has contended that the suit for bare injunction is not maintainable. Apart from that the suit itself is not maintainable as the property was already notified by government for acquisition of the land for BDA, the final notification was also issued, therefore it is contended after issuing preliminary notification any sale deed or alienation is effected it is void transactions. Even assuming there is an agreement of sale if the property is not denotified then the sale deed cannot be executable and also contended 10 that plaintiff seeking injunction on the basis of the agreement of sale which is unregistered document, it cannot be executable. If at all plaintiff wants any relief he could have file the suit for specific performance of contract. Therefore his remedy is elsewhere and relief cannot be granted in view of Sec.41(h) of Specific Relief Act. The property has been notified and final notification also issued, award has been passed in favour of the defendant, such being the case the plaintiff cannot seek any relief of injunction. After death of Madappa the property has been mutated in the name of the legal heirs of Madappa and the suit itself is not maintainable, the relief of injunction is not granted, the agreement is not enforceable under the law, any agreement after the acquisition of the property by the State is void. Therefore it is contended that the trial court rightly dismissed the suit of the plaintiff. Hence prayed for dismissing the appeal.
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12. Having heard the arguments perused the records the points that arises for my consideration are;
1) Whether the plaintiff proves he is in lawful possession and enjoyment of the suit schedule property on the basis of agreement of sale?
2) Whether the plaintiff further proves the defendant trying to interfere and alienate the suit schedule property?
3) Whether the defendant attempted to receive the compensation awarded by the State?
4) Whether the judgment of trial court call for interference and the plaintiff is entitled for the decree as prayed for?
13. Upon hearing the arguments of both side and perused the records it is not in dispute that suit schedule property is belongs to Madappa who is the husband of the 1st defendant and father of the defendant Nos.5 to 8. It is also an admitted fact that the land in suit schedule property was notified by the State Government under the 12 preliminary notification issued by the government as per Ex.P.9. It is also an admitted fact that the preliminary notification was issued on 23.02.1988. It is also an admitted fact the State also issued final notification on 09.04.1994, and it is also an admitted fact an award has been passed by the state in favour of Madaiah / his legal heirs. The defendants are trying to receive the compensation as they are khatedars of the property. The case of the plaintiff is that after issuing preliminary notification the plaintiff entered into an agreement of sale with the Madaiah on 03.05.1991, admittedly after the preliminary notification and prior to final notification. It is alleged by the plaintiff under the agreement of sale he was put in possession, the same is denied by the defendant. The GPA holder of the plaintiff was examined as PW.1. The Ex.P.2 is the agreement of sale and the plaintiff also claims GPA executed in his favour on 31.05.1991 for getting denotification of the property and through out his case he has stated that he is in possession 13 of the suit schedule property. It is well settled the very agreement is void under the law. Once the property has been notified by the State for the acquisition and final notification has issued and award has been passed, the land is vested with the government, therefore any agreement of sale, transfer or any transaction or alienation is void and as per Section 4 and 6 of the Land Acquisition Act, and it is appealable for enhancement by way of reference and appeal under Section 54 of Land Acquisition Act, it is complete code by itself and there is a bar under Section 9 of CPC, for filing the suit. It is not in dispute the Madappa was the owner of the property and who said to be died in the year 2008. After his death the legal heirs name was mutated in the RTC vide MR No.9/2007-08, a pavathi khatha was obtained by the respondents/defendants. It is also the case of the plaintiff that he is an agreement holder and he was put in possession but without filing the suit for Specific Performance of Contract, he has filed the suit for bare 14 injunction which is not maintainable. The remedy available elsewhere. The plaintiff is not entitled for any relief as per Sec.41(h) of Specific Relief Act. When equally efficacious remedy available by any other usual mode of proceeding except in case of breach of trust the relief cannot be granted as held by this court in RFA No.1489/2017 dated 18.08.2023 in the case of R.Krishnamachari Vs Thimmarajachar and others. The Hon'ble Supreme Court has held in the case of Balaram Singh Vs Kelo Devi in Civil Appeal No.6733/2022 at para 6 as under;
6. Having conscious of the fact that the plaintiff might not succeed in getting the relief of specific performance of such agreement to sell as the same was unregistered, the plaintiff filed a suit simplicitor for permanent injunction only. It may be true that in a given case, an unregistered document can be used and/or considered for collateral purpose. However, at the same time, the plaintiff cannot get the relief indirectly which otherwise he/she cannot get in a suit for substantive relief. namely, in the present case the relief for specific performance. Therefore, 15 the plaintiff cannot get the relief even for permanent injunction on the basis of such an unregistered document/agreement to sell, more particularly when the defendant specifically filed the counter-claim for getting back the possession which was allowed by the learned trial Court. The plaintiff cleverly prayed for a relief of permanent injunction only and did not seek for the substantive relief of specific performance of the agreement to sell as the agreement to sell was an unregistered document and therefore on such unregistered document/agreement to sell, no decree for specific performance could have been passed. The plaintiff cannot get the relief by clever drafting.
14. The Hon'ble Apex Court has set aside the judgment of the High Court and restored the judgment of the trial court.
15. In the case of Commissioner, BDA and another Vs Brijesh Reddy and Another reported in (2013) 3 SCC 66, the Hon'ble Apex Court has held as 16 per Section 9 of CPC, the Civil Court is bared from entertaining any suit after issuance of preliminary notification by the BDA.
16. In view of the judgment of Hon'ble Apex Court in the above said case that after the land was acquired by the State any sale deed executed is void ab-initio. Therefore the agreement at Ex.P.2 is void agreement and it is not enforceable. Therefore the plaintiff is cleverly filed suit for bare injunction instead of filing suit for Specific Performance, knowing fully the agreement is unenforceable as per Section 13 of the Specific Relief Act. Therefore by claiming the Ex.P.2 unregistered agreement of sale the contention of the plaintiff is that possession of the suit schedule property has delivered to him cannot be acceptable. That apart as per his contention a GPA has been executed for approaching government for denotification and till date from 1988 and after the final notification in 1994 more than 30 years over but no denotification is made by the Government. Therefore 17 question of executing sale deed by the defendant in favour of the plaintiff does not arises. When the efficacious remedy is available in the Specific Performance suit but not in bare injunction suit and though the plaintiff claims that he is having nursery business, he has constructed a water body etc., but the photographs reveals that there is no such water body in the land. If any water stagnated on the side of the land or low laying area on the border of the land and he cannot claim right that he has put up water body. Therefore the documents produced by the plaintiff for obtaining the pump set and other connection and payment of construction of tank may be for his own nursery running by him but not to the suit schedule property.
17. On the other hand it is not in dispute the property belongs to the defendants family. The 1st defendant given representation to the BDA for denotification, it is under consideration. Merely the DW.1 has stated he is not aware about the agreement of sale or GPA that itself is not a 18 ground to grant decree in his favour or presumption available in his favour. The plaintiff required to prove his case without taking weakness of the defendants. Claiming the injunction based upon the unenforceable documents is not maintainable and that to no injunction can be granted against the true owners. When the plaintiff himself failed to prove his lawful possession over the suit schedule property the question of granting injunction against the defendant does not arises. In view of the above said reasoning and finding and on appreciation of evidence on record I am of the view that the plaintiff is failed to prove his case against lawful possession and enjoyment of the property and interference of the defendant. Hence, answered the point No.1 and 2 in the negative.
18. As regard to the receiving the compensation the defendants are the legal heirs of deceased Madappa and they are entitled for receiving the compensation. And when the government not denotified the land the question of selling the property and execution of sale deed does not 19 arises. Hence, answer the point No.3 in favour of the defendant.
19. The appellant produced an affidavit of a witness to prove the agreement of sale. Even if the agreement of sale is proved by way of additional evidence but agreement itself is void agreement and not enforceable under the law. Therefore even if the Interlocutory Application is allowed for additional evidence it will not helpful to the plaintiff's case. Hence Interlocutory Application under Order 41 Rule 27 is liable to be dismissed.
20. The trial court has after considering the evidence on record, documents and appreciating evidence rightly dismissed the suit of the plaintiff. Therefore the judgment relied by the plaintiff counsel in case of Suraj Lamp and Industries Pvt. Ltd. Vs State of Haryana decided in SLP (C) No.13917/2009 on 11.10.2011 is not come to the aid if the plaintiff. In view of the latest judgment produced by the respondent counsel in respect of 20 Commissioner BDA supra and Balaram Singh case the judgment relied by the appellant counsel in the case of Saraswathi Devi (D) by Lrs. Vs Delhi Development Authority and others decided in Civil Appeal No.4373 of 2009 on 29.01.2013, will not come to the aid of the plaintiff. Therefore the appeal is devoid of merits and do not call for interference in the judgment of the trial court. Accordingly, answer the point No.4 in the negative.
21. For the foregoing reasons I proceed to pass the following;
ORDER The appeal filed by the appellant/plaintiff is hereby dismissed.
Sd/-
(K.NATARAJAN) JUDGE SRK CT:SK