Karnataka High Court
G S Bhat vs U Nagaraj on 21 June, 2019
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF JUNE, 2019
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
RFA.No.1625/2010
BETWEEN:
G.S. BHAT
SON OF SHANKAR BHAT
AGED ABOUT 73 YEARS
NO.1131, 9TH 'B' MAIN
KEB LAYOUT
BANGALORE-560 029. ... APPELLANT
(BY SRI. M. MADHAVACHAR, ADV.)
AND:
1. U. NAGARAJ
AGED ABOUT 47 YEARS.
2. SMT. SAVITHRI U.
W/O. U. NAGARAJ
AGED ABOUT 45 YEARS
BOTH ARE R/AT NO.552
BHEL LAYOUT
PATTANAGERE
RAJARAJESHWARI NAGARA
BANGALORE-560 098. ... RESPONDENTS
(SRI. M.S. BHAGWAT, ADV. FOR R1 AND R2)
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THIS RFA IS FILED UNDER SECTION 96 READ
WITH ORDER 41 RULE 1 AND 2 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED 24.07.2010 PASSED
IN O.S.NO.3304/2005 ON THE FILE OF THE II ADDL.
CITY CIVIL AND SESSIONS JUDGE, BANGALORE
(CCH.17) DISMISSING THE SUIT FOR RECOVERY OF
MONEY, PERMANENT INJUNCTION AND MANDATORY
INJUNCTION.
THIS APPEAL COMING ON FOR HEARING AND
HAVING BEEN RESERVED FOR JUDGMENT, THIS DAY
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed challenging the judgment and decree of dismissal of the suit passed in O.S No.3304/2005 on the file of II Additional City Civil and Sessions Judge at Bengaluru dated 24.07.2010.
2. The brief facts of the case is that; the plaintiff has filed the suit for recovery of sum of Rs.48,000/- together with interest at the rate of 18% per annum from the date of suit till its realization. The other relief also sought are that; to restrain the defendants or their agents or any persons claiming through them from 3 alienating the suit schedule property in any way without complying the conditions mentioned in the absolute sale deed dated 29.09.1993 regarding payment of development charges by granting permanent injunction and also alternatively, has sought for a direction to the defendants to re-convey the suit schedule property to the plaintiff by accepting the sale consideration amount of Rs.42,000/- together with Bank rate of interest from the date of sale till the date of filing of suit by granting mandatory injunction and such other relief as the Court deems fit.
3. The claim of the plaintiff is that the suit schedule property is the site bearing No.11 formed in Sy. No.23 of Durga Nagar Layout, Mallasandra Village, Kengeri Hobli, Bengaluru South Taluk measuring east to west: 30 feet and north to south: 40 feet with the boundaries mentioned in the schedule of the plaint. The contention of the plaintiff is that he formed 4 residential sites to the extent of 6 acres in Sy. No.23 of the said village and he proceeds to narrate the dimensions of those properties in different measurements. After formation of layout, he sold the sites to several purchasers. These two defendants are jointly purchased the schedule property under the registered sale deed dated 29.09.1993 and in terms of the sale transaction, it includes the payment of development charges. Providing civic amenities to the said layout is a subsequent event. According to the plaintiff, the defendants were under a legal and contractual obligation to pay such development charges amounting to Rs.48,000/-. The defendants did not pay the said amount and hence, he filed the suit against the defendants.
4. The defendants, after receipt of the suit notice, appeared through the counsel and filed objection contending that execution of the sale deed touching suit 5 property in their favour as well as consideration amount etc., are all admitted. So also, the condition put in the sale deed touching the payment of developmental charges. It is the specific case of the defendants that such a condition is void and unenforceable. Alternatively, they pleaded that they have paid for a sum of Rs.14,670/- towards the development charges to the concerned local planning authority and denied all other averments made in the plaint. He further contended that no civic amenities are provided by the plaintiff. The plaintiff is only taking the advantage of the clause mentioned in the sale deed filed the suit. The local planning authority determined the developmental charges at Rs.14,670/- and the same has been paid by the defendants. Hence, the plaintiff is not entitled for claim amount.
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5. The Court below having considered the pleadings of the plaintiff and also the defendants, has framed the following issues:
1. Whether plaintiff proves that defendant agreed to purchase site subject to the payment of development charges?
2. Whether plaintiff has developed site spending his amount?
3. Whether defendant proves that he has paid development charges to the concerned authority?
4. Whether plaintiff is entitled for suit amount by defendant?
5. If so what is amount? If not why?
6. What Judgment or decree?
6. The Court below recorded the evidence of the plaintiff. In support of his claim, examined himself as P.W.1 and examined one witness as P.W.2, who is the Commissioner and got marked the documents as Ex.P.1 to 22. On the other hand, defendant No.1 himself 7 examined as D.W.1 and got marked documents as Ex.D.1 to 3.
7. The Court below having heard the arguments of both parties after completion of the evidence, answered issue No.1 as affirmative and comes to a conclusion that defendants agreed to purchase site subject to the payment of development charges. However, answered Issue No.2 as negative that the plaintiff has not spent the amount to develop the sites. While answering Issue No.3, the Court below held that the defendants have paid development charges to the concerned authority and hence, the plaintiff is not entitled for the suit claim.
8. Being aggrieved by the judgment of dismissal of the suit, the appellant/plaintiff in the present appeal would contend that the trial judge failed to appreciate the pleadings and also the evidence led before the trial 8 Court. It is clear from the contents of Ex.P.1 that there is a condition in the sale deed that the defendants have to bear the developmental charges as and when the plaintiff starts the developmental activities in the layout, and the trial Judge failed to appreciate the Report of the Court Commissioner regarding the development made by the appellant in the layout. The trial Judge has also committed an error in making observation that the appellant ought to have impleaded other purchasers and the same is not warranted. The trial Judge has failed to understand the suit filed by the plaintiff that it is individual cause of action and the other purchasers are not necessary parties. The other contention of the appellant/plaintiff is that there is no dispute with regard to the fact that the site was developed and also with regard to the other purchasers have paid the amount and the trial Court on its own observation without supporting any piece of evidence erroneously 9 dismissed the suit and hence, the suit is liable to be decreed by setting aside the order of the trial Court.
9. The learned counsel appearing for the appellant in his oral argument reiterated the grounds urged in the appeal would contend that no dispute with regard to the sale was made subject to the payment of developmental charges and the Commissioner has been examined and his report supports the claim of the plaintiff that the plaintiff has spent money for providing basic amenities and hence, the Court below ought not to have dismissed the suit and made an erroneous observation in the judgment that the plaintiff ought to have made the other purchasers as parties to the proceedings.
10. Per contra, the learned counsel appearing for the respondents/defendants in his argument contended that the defendants have purchased the site in the year 10 1993 and the plaintiff did not prove the issue No.2 regarding the money has been spent for development work in the layout. The trial Judge while answering the said issue, in para No.10 discussed in detail and also considered the fact that development charges was paid by the defendants and the same was collected by the authority and in the absence of any concrete material for having spent the amount for development charges, the trial Judge has rightly answered the issue No.2 as negative and also considered the evidence of the defendants for having paid the amount in favour of the authority and rightly answered the issue No.3 that the defendants have paid the development charges to the concerned authority and dismissed the suit. There are no grounds to interfere with the judgment and decree of the trial Court.
11. Having heard the arguments of the learned counsel for appellant and also learned counsel 11 appearing for respondents, the point arises before this Court is as follows;
Whether the trial Judge has committed an error in dismissing the suit and comes to a conclusion that the plaintiff has not spent the amount for development and answered issue No.2 in the negative and committed an error to comes to a conclusion that the defendants have paid the development charges to the concerned authority and answered the issue No.3 in the affirmative?
12. The Court below considering the condition mentioned in the sale deed which is marked as Ex.P.1 comes to a conclusion that the plaintiff has proved that the defendants have agreed to purchase the site subject to the payment of development charges and no dispute with regard to the fact that there is such a condition in the sale deed and the said finding of affirmative is not challenged by the defendants also and hence, it is clear that there is a condition in the sale deed and the 12 defendants have agreed to purchase the site subject to the payment of development charges.
13. Now, the question before this Court is with regard to issue Nos.2 and 3 and the Court below has framed the issue that; whether the plaintiff has developed the site by spending his amount? and whether the defendants have paid the development charges to the concerned authority and whether plaintiff is entitled for suit claim.
14. It has to be noted in para Nos.3 and 4 of the plaint that the plaintiff has gradually developed the property by using men and material at his own costs and there was a clause in the sale deed that the defendants have to pay the amount and further pleaded in the plaint that the surrounding areas of the schedule property was not much developed till the year 2003-04 when the Bengaluru Development Authority took steps 13 for formation of the Banashankari 6th Stage which is near to the suit schedule property and Bengaluru- Mysuru Infrastructure Corridor (BMTC) and the surrounding areas of the layout has been developing up gradually and the plaintiff could not develop the property for want of funds. The plaintiff has taken up overall development of the layout gradually during the month of November, 2004 by laying the sewerage line, drainage line, formation of road within the layout and also formation of the maid road about 1500 square feet length, which is connecting to Uttarahalli Kengeri Main Road from the layout in south and Rajarajeshwarinagar in north. The plaintiff also requested the Karnataka Electricity Board Authority for power connection and the facility is now provided in the layout. Recently, the plaintiff has laid the water supply pipeline in the entire layout and hence, he has spent huge amount. Hence, he has caused the legal notice demanding to pay an amount of Rs.48,000/- towards the share of 14 development charges on the part of the defendants and they did not pay the amount and hence, suit has been filed.
15. The defendants, in the written statement, have denied the averments made in the plaint and would contend that the plaintiff did not make any development and it is the authority, which has provided the facilities after taking the development charges. In fact, the defendants have replied to the notice issued by the plaintiff and the defendants have paid the development charges to the concerned Local Planning Authority i.e., City Municipal Council to the extent of Rs.14,670/-. However, admits that there was a condition in the sale deed to pay the development charges. The plaintiff did not spend money for development of site. The plaintiff filed affidavit reiterating the averment of plaint and in order to prove his claim, he has produced the document as per Ex.P.1 15 to 22. The first document i.e., Ex.P.1 is the sale deed. No dispute that there is a recital in the sale deed for payment of development charges. The plaintiff also produced the documents Ex.P.2 to 4 i.e., notice and reply. Ex.P.6 are seven photographs. Copies of letters of Assistant Executive Engineer dated 15.01.2006 and 07.01.2006 are produced as Ex.P.7 & 8. Agreement dated 05.01.2006 regarding supply of electricity is produced as Ex.P.10 and requisition for supply of electricity is produced as Ex.P.11. The copies of letter of Assistant Executive Engineer, BESCOM dated 04.01.2006 and 07.01.2006 are produced as Ex.P.12 &
15. Estimation and Inspection Certificate are produced as Ex.P.16 and 17. Local Investigation Report and Development works at Durganagar Layout and Electricity Distribution Map are produced as Ex.P.20 & 21. Reply statement to Commissioner's report is produced as Ex.P.22. The plaintiff was subjected to cross-examination. In the cross-examination of P.W.1, 16 the learned counsel for the defendants elicited the answer that he cannot say on which date, he commenced the development work and completed the same. The suggestion was made that he did not do any development work and same was denied. P.W.1 also admits that the estimation of charges regarding the development charges was prepared by him and there was no necessity to approach any development authority to estimate the development charges. It is elicited that he demanded the development charges from the site owners as soon as the development work begins and he demanded the amount on 07.02.2005 and he claimed that there was reconveyance clause. It is suggested that the defendants did not pay the development charges. Since the plaintiff did not make any development in the layout and the same is denied, it is suggested the plaintiff is not entitled to claim any development charges. He also claimed that he has produced the documents to show that he had made the 17 payment to the KPTCL. On the other hand, respondents also examined D.W.1 and reiterated the averments of the written statement in his affidavit. In the cross- examination of D.W.1, it is elicited that plaintiff is his distinctive relative and also admits that at the time of signing the sale deed, he came to know about the condition No.6 and he did not ask the plaintiff to delete that condition and subsequently, he did not ask the Sub-Registrar to cancel the sale deed and he does not know whether the plaintiff has submitted the application to BDA as per Ex.P.19.
16. The plaintiff in order to prove his case, he also examined the Commissioner as P.W.2 who conducted the local inspection and he says that he conducted the inspection and gave a report in terms of Ex.P.20. In the cross-examination, he admits that in the year 2008, the Bengaluru Development Authority was the authority to approve the plan and the suit schedule property comes 18 within the purview of Bengaluru Development Authority. He does not know whether Bengaluru Development Authority has approved the plan or not? It is suggested that he has prepared Report as per the instructions of the plaintiff and the same was denied. It is elicited that the water line may be installed in between the year 2004 to 2007. The suggestion was made that no development work was done and the said suggestion was denied. It is elicited that he prepared the estimation of cost based on the measurement of the road and installation of electrical poles and formation of the road and box drainage.
17. Now, let me appreciate the evidence before the Court with regard to issue No.2 and issue No.3. Particularly, the dispute is in respect of issue Nos.2 and
3. It is the contention of the plaintiff that he has spent money for development of layout. It is the contention of the defendants that he has not spent any amount for 19 development work. It has to be noted that when the plaintiff has spent money for development work, he ought to have produced the document. How much money he has spent. The plaintiff has not produced any documentary proof for having spent the money. However, he made the claim of Rs.48,000/- against the defendants. In order to claim amount of Rs.48,000/-, there must be a specific claim, how much money he has spent and how he arrived the claim amount from the defendants to the extent of Rs.48,000/-. No pleadings with regard to the said fact and also had not placed any documentary proof before the Court, except the documents which are produced before the Court i.e., Exs.P.4 to 22 and those documents do not come to the aid of the plaintiff to prove issue No.2. There is no cogent evidence for having spent the amount and the said amount has been bifurcated among the total site owners. It is also the contention of the learned counsel appearing for the appellant that the other purchasers 20 have paid the development charges and for having received the development charges from the other purchasers, no document is placed before the Court. Exhibits which are referred to Ex.P.7 & 8 are the letters of the Assistant Executive Engineer and no document is placed before the Court for having paid the amount to the concerned department and no basis for claiming an amount of Rs.48,000/- from the defendants. It is further important to note that the defendants have produced the document Ex.D.1 - Cash receipt for having paid an amount of Rs.14,670/-. It is not the case of the plaintiff that the defendants have not paid the amount and the said amount is paid towards the development charges and in order to claim amount of Rs.48,000/-, there must be a specific claim supported with documentary proof and no doubt, in the Ex.P.1, there is a clause to pay the development charges. While making the claim, it should be supported by the documentary proof. None of the documents which are 21 produced before the Court support the claim. The learned counsel for plaintiff/appellant in his argument vehemently contended that Commissioner has been examined as P.W.2 and his Report Ex.P.20 shows that an amount of more than Rs.21,00,000/- was spent towards the development charges. The Court below while considering the report has also made observation that the Commissioner only inspected the layout and his report is only an estimated cost and he gave the report by taking the measurement of the road and installation of electricity poles. In order to substantiate the same, the plaintiff has to produce the documents and only he conducted the inspection and gave a report and who had spent the amount, there are no documentary proof. Plaintiff also not produced any documentary proof and trial Judge has rightly observed that the Commissioner cannot say who had spent the money. It is the claim of the defendants that the concerned authorities have developed the area and also 22 collected an amount of Rs.14,670/- from the defendants. The plaintiff also did not dispute the fact that the payment of Rs.14,670/- paid by the defendants. Having considered both oral and documentary evidence, the claim of the plaintiff an amount of Rs.48,000/- towards development of sites is not supported by any documentary proof and in the absence of any proof, the Court cannot pass a decree based on surmises and conjectures. The same has been already observed by the trial Court and in the absence of substantial material before the Court for making claim, the Court cannot grant a decree. On the other hand, the defendants have paid the development charges amount of Rs.14,670/- to the concerned authority and the same has not been disputed in the cross-examination of D.W.1 by the plaintiff while cross- examining the D.W.1 and when such being the case, I do not find any merit in the appeal to comes to a other conclusion that the Court below has committed an error 23 in dismissing the suit and hence, I am of the opinion that the trial Judge has not committed an error in answering issue No.2 in the Negative and answering issue No.3 in the Affirmative. The other observation made by the trial Court regarding the plaintiff not made the other purchasers as parties and they were necessary parties is erroneous and there was no necessity and the claim is against an individual as contended by the Appellant's counsel and the said finding is not warranted. In the result, I pass the following;
ORDER The appeal is dismissed.
No cost.
Sd/-
JUDGE NBM