Bangalore District Court
Bhakthavasathala D vs Kamalesh Kumar on 4 January, 2024
/ 1 / O.S.No.3331/2021
KABC010128152021
THE COURT OF XXXIX ADDITIONAL CITY CIVIL & SESSIONS
JUDGE, (CCH-40), BANGALORE CITY.
Dated this the 04th day of January, 2024.
PRESENT
YASHAWANT R. TAWARE,
B.Sc., LL.B.,(Spl.),
XXXIX Additional City Civil & Sessions Judge,
Bangalore City.
ORIGINAL SUIT NO.3331/2021
Plaintiff :
D.Bhakthavasathala
S/o late R. Dharma Naidu,
Aged about 55 years,
No.146/A, Ground Floor,
5th Main Road, 4th Block,
Rajajinagar,
Bengaluru - 560 010.
(By Sri. B.S.Jayakrishna., Advocate)
/ VERSUS /
Defendants :
1. Kamalesh Kumar
S/o Parasmalji,
Aged about 55 years,
/ 2 / O.S.No.3331/2021
2. Mishra Rao
S/o Juttaramji,
Aged about 49 years,
Both defendant Nos.1 & 2 are
Residing at:
No.93, 7th Cross Road,
(3rd Cross road), 2nd Main Road,
3rd Block, Rajajinagar,
Bengaluru - 560 021.
3. Nagaraj Prasanna S.
S/o Seetharam,
Aged about 34 years,
4. D.Komala
W/o Nararaj Prasanna S
Aged about 30 years,
Both defendant No.3 and 4 are
Residing at:
No.20, Coconut Garden,
Behind Ganesha Temple,
T. Dasarahalli,
Bengaluru - 560 057.
( D.1 & 2 by Sri. Mohan S Reddy., Advocate
D.3 & 4 - Exparte)
Date of Institution of the Suit 30.06.2021
Nature of the Suit (Suit on Declaration & permanent
pronote, Suit for declaration Injunction
and possession, Suit for
injunction etc,)
Date of the commencement of 15.10.2022
recording of the evidence
/ 3 / O.S.No.3331/2021
Date on which the Judgment 04.01.2024
was pronounced
Total duration Year/s Month/s Day/s
02 years, 06 months, 04 days.
JUDGMENT
The plaintiff has filed this suit to declare that he has a preferential right (right of pre-emption) to purchase the plaint schedule 'B' property in terms of compromise decree dated 24.01.2001 passed in RFA No.188/2001 by Hon'ble High Court of Karnataka and also to declare that the Regd. Sale Deed dated 23.01.2019 executed by defendant Nos.3 & 4 in favour of defendant Nos.1 & 2 in respect of schedule 'B' property is void and not binding on him and to issue direction to the said defendant Nos.1 & 2 to re-convey the said schedule 'B' property in favour of plaintiff by accepting the sale consideration amount as reflected in the Regd. Sale Deed dated 23.01.2019 by executing Regd. Sale Deed and also sought the relief of permanent injunction restraining the defendants or any persons claiming through said defendants from interfering / 4 / O.S.No.3331/2021 with plaintiff's possession and enjoyment of plaint schedule 'A' property and also restraining them from alienating the schedule 'B' property in favour of any third person other than the plaintiff and also restraining them from putting up construction in an area of 5 X 10 i.e., 50 sq. feet wrongfully encroached by the defendant Nos.1 & 2 in schedule 'A' property and also restraining them from demolishing the compound wall put up towards southern side of schedule 'A' property.
2. The plaint averments in brief are that :
The plaint schedule 'A' property is described as house property bearing No.146/A, measuring East-West 45 feet and North-South 35 feet totally 1575 sq. feet minus area of 502 sq. feet i.e., balance area of 1073 sq. feet situated at 15th Main road, 4th Block, Rajajinagar, Bengaluru. The plaint schedule 'B' property is described as house property bearing New No.48/1-4, PID No.22-5-48/1-4, consisting of two portions i.e., (i) one portion measuring East-West 40 feet and North-South 10 feet totally 400 sq. feet (ii) Another portion which is a Running / 5 / O.S.No.3331/2021 passage measuring East-West 34 feet and North-South 3 feet totally 102 sq. feet situated at 15th Main road, 4th Block, Rajajinagar, Bengaluru. It is contended that, the plaintiff is absolute owner in possession of plaint schedule 'A' property having acquired the same in a compromise decree dated 24.01.2001 passed in RFA No.188/2000 by Hon'ble High Court of Karnataka. The said larger extent of the property was divided into five shares in the aforesaid compromise decree and the plaintiff's elder brother Mr.Yatiraj became owner of property No.48/1-5, plaintiff's younger brothers Mr.D.Lokesh became the owner of property No.48/1-3, Mr.Devaraj became the owner of property No.48/1-4, Mr.Radhakrishna became the owner of property No.48/1-6 and the plaintiff became owner of property No.48/1-1 and 48/1-2 by virtue of said compromise decree.
Subsequently, the plaintiff's elder brother Mr. Yatiraj sold his portion of the property No.48/1-5 in favour of plaintiff by Sale Deed dated 09.09.2004. The plaintiff's younger brother Mr.Radhakrishna has bequeathed his portion of the property No.48/1-6 in favour of plaintiff by executing a Will dated / 6 / O.S.No.3331/2021 02.04.2006. Thus, the plaintiff became owner of the property bearing khata Nos.48/1-1, 1-2, 1-5 & 1-6 in schedule 'A' property which was subsequently alloted a single PID No.22-5-48/1-1 by entering the name of plaintiff in the khata certificate and khata extract. Towards western side of schedule 'A' property, there was a marginal land measuring 5 feet in width and 35 feet in length totally 175 sq. feet belonged to Karnataka Housing Board. The said marginal land was alloted to the plaintiff by KHB by executing Regd. Sale Deed dated 17.08.2009 which was subsequently rectified by Regd. Rectification Deed dated 08.09.2009. Hence the plaintiff became absolute owner over the said marginal land bearing No.48/1-7 which is at the rear side or western side of schedule 'A' property. As per the compromise decree dated 24.01.2001 passed in RFA No.188/2000, the plaintiff's brothers viz., Mr.D.Lokesh and Mr.D.Devaraj were using the common staircase and passage measuring 40 X 5 feet totally 200 sq. feet. As the one of the brother of plaintiff was obstructing the plaintiff in the use of said common passage, the plaintiff filed the suit in O.S.No.3595/2014 against Mr.D.Lokesh / 7 / O.S.No.3331/2021 for permanent injunction. The said suit ended in compromise decree dated 29.07.2015 by which Mr.D.Lokesh agreed to gave up his rights over the said common passage measuring 5 X 40 feet in favour of plaintiff and in turn the plaintiff agreed to give up right over area of 3 X 34 feet in schedule 'A' property. The plaintiff filed E.P.No.2081/2015 to execute the said compromise decree where the court commissioner has executed the Regd. Relinquishment Deed dated 04.06.2016 in favour of plaintiff in respect of common passage measuring 5 X 40 feet. By virtue of the said Relinquishment Deed, the plaintiff has become absolute owner the said common passage also measuring 5 X 40 feet. The plaintiff filed another suit in O.S.No.4975/2011 against his brothers Mr.D.Devaraj and Mr.D.Lokesh seeking the relief of Mandatory Injunction, Recovery of Possession, Damages and for Permanent Injunction. However the said suit came to be dismissed by judgment and decree dated 25.07.2016. The plaintiff filed RFA No.1540/2016 before the Hon'ble High Court of Karnataka which ended in compromise with sketch by judgment and decree dated 09.06.2017.
/ 8 / O.S.No.3331/2021 Subsequently, plaintiff's brother Mr.D.Lokesh again trespassed into the passage and started to dig up the land for construction of a water sump. As a result, the plaintiff filed a suit in O.S.No.5790/2016 against him for permanent injunction wherein order of temporary injunction dated 10.08.2016 was granted against Mr.D.Lokesh from interfering with plaintiff's possession of the said passage. The plaintiff has also filed a criminal case against Mr.D.Lokesh for his said acts. As per the compromise decree dated 24.01.2001 passed in RFA No.188/2000, the parties have agreed that if any one wants to sell their share, they shall sell the same among the family members only and it is only when the family members declined to purchase the said share, he is entitled to sell the same to anybody other than the family members. During the pendency of the suit in O.S.No.5790/2016, the plaintiff's brothers Mr.D.Lokesh and Mr.D.Devaraj have sold their portion of the property bearing No.146/A, Khata No.48-1/4 & 48-1/3, PID No.22- 5-48/1-3 which is described as schedule 'B' property in favour of son-in-law and daughter of Mr.D.Devaraj who are defendant / 9 / O.S.No.3331/2021 Nos.3 & 4 herein by Regd. Sale Deed dated 12.09.2016. Consequently, the said defendant Nos.3 & 4 came to be impleaded in the said suit in O.S.No.5790/2016 by order dated 30.05.2017. The said action of defendant Nos.3 & 4 were in contravention of terms of the compromise decree dated 07.10.2017 passed in RFA No.1540/2016. Therefore, the plaintiff filed Execution Petition No.4506/2018. During the pendency of the said execution petition, the defendant Nos.3 & 4 have sold the schedule 'B' property in favour of defendant Nos.1 & 2 by Regd. Sale Deed dated 23.01.2009. As the EP No.4506/2018 became infructuous due to sale of schedule 'B' property, the plaintiff has withdrawn the said execution petition on 05.08.2019. The Sale Deed dated 23.01.2019 is in total contravention of compromise decree dated 24.01.2001 passed in RFA No.188/2000 and also compromise decree dated 07.10.2017 passed in RFA No.1540/2016 and also in contravention of plaintiff's right of pre-emption. Therefore, the said Sale Deed dated 23.01.2019 is void and not binding on the plaintiff. The plaintiff has caused to issue a legal notice dated / 10 / O.S.No.3331/2021 11.06.2019 through his counsel calling upon the defendants to re-convey the schedule 'B' property in favour of plaintiff by canceling the Sale deed dated 23.01.2019. However, the defendant Nos.1 & 2 gave reply dated 01.07.2019 denying the rights of the plaintiff. The notice issued to the defendant Nos.3 & 4 returned unserved. The facts being stood thus, the defendant Nos.1 & 2 has trespassed in the schedule 'A' property and wrongfully demolished the plaintiff's portion by encroaching 5 X 10 i.e., 50 sq. feet the marginal land alloted to the plaintiff by KHB without any prior consent of plaintiff. The plaintiff filed application in O.S.No.5790/2016 to implead the defendant Nos.1 & 2 which came to be allowed by order dated 11.09.2019. The defendant Nos.1 & 2 was fully aware of the interim order passed in the said suit from altering the nature of the schedule property but still demolished the portion of the plaintiff's property. The plaintiff has also lodged a police complaint which came to be registered against defendant Nos.1 & 2 on the direction of Hon'ble High Court in W.P.No.46659/2019. The plaintiff filed amendment application / 11 / O.S.No.3331/2021 in O.S.No.5790/2016 seeking specific relief against defendant Nos.1 & 2 which came to be rejected by order dated 06.03.2021 for the reason that the suit was for mere permanent injunction and it was observed that the plaintiff is at liberty to file a separate suit against defendants. Therefore, the plaintiff filed this comprehensive suit. The plaintiff also learnt that the defendant Nos.1 & 2 to deny the pre-emptory rights of the plaintiff are doing hectic efforts to sell the schedule 'B' property in favour of third person. If the said defendants alienate the schedule 'B' property it would not only defeat the rights of the plaintiff but also cause sever hardship as the strangers would lay their hands which also has common passage and common utilities. Therefore, the plaintiff having left with no other alternative constrained to file this suit against defendants.
3. In response to the service of summons, the defendant Nos.3 & 4 have remained absent on the date fixed for their appearance and as such they have been placed as exparte in this proceedings. However, the defendant Nos.1 & 2 / 12 / O.S.No.3331/2021 have entered their appearance through Sri.Mohan S Reddy., the learned counsel and filed their joint written statements in defence to this suit of plaintiff.
In the written statement, the defendant Nos.1 & 2 have taken up contentions that, the defendant Nos.1 & 2 are bonafide purchasers of plaint schedule 'B' property for valuable sale consideration without notice of the alleged preferential right of the plaintiff. The plaintiff has not challenged the sale deed executed in favour of defendant Nos.3 & 4 by D.Devaraj and D.Lokesh and as such his alleged right of pre-emption cannot be enforced in view of Article 97 of the Law of limitation Act. On this count alone, the suit is liable to be dismissed. This suit is also bad for non-joinder of D.Devaraj and D.Lokesh as necessary parties for proper adjudication of this suit. Sri.D.Devaraj and Sri.D.Lokesh have sold the schedule 'B' property in favour of daughter and son-in-law of Sri.D.Devaraj by executing Regd. Sale Deed dated 12.09.2016 for sale consideration of Rs.44,75,000/-. Without challenging the / 13 / O.S.No.3331/2021 said sale deed and making the said vendors as parties to this suit, this suit is not maintainable and liable to be dismissed. The plaintiff has no right of pre-emption by virtue of compromise decree dated 24.01.2001 passed in RFA No.188/2000 as he had waived of his said right and now he cannot enforce the same. The court fee paid by the plaintiff is also not proper and sufficient. The plaintiff has not come to the court with clean hands. The plaintiff's alleged pre-emptory rights was waived of on 12.09.2016 when the schedule 'B' property was sold in favour of defendant Nos.3 & 4 for valuable consideration amount. The said alienation of property was not by way of gift, will or settlement deed but by way of sale deed coupled with consideration. When the said sale deed is not questioned, the question of claiming pre-emptory rights has no weightage in the eye of law. The registered document is deemed to be to the knowledge of public. Therefore, the period of limitation as per Article 58 of the Limitation Act will start from 12.09.2016. As per Article 59 of the Limitation Act, a suit for cancellation of sale deed can be filed within three years of / 14 / O.S.No.3331/2021 its registration. Therefore, there is prior bar of limitation to file this suit. Hence the plaint is liable to be rejected under Order VII Rule 11(d) of CPC. The registered document itself being a deemed notice of its execution as per Sec.3 of the Transfer of Property Act, it cannot be said that the said sale transaction was not within the knowledge of plaintiff. The plaintiff has not made any efforts to get the compromise and right of pre- emption entered in the revenue records. Therefore, the defendant Nos.1 & 2 were unaware of the alleged pre-emption right of the plaintiff. Hence they are bonafide purchasers without notice of pre-emption right and in such circumstances, the plaintiff cannot enforce the alleged right of pre-emption against the bonafide purchasers. The contends of para Nos.3 to 14 are not within the knowledge of defendant Nos.1 & 2. The defendant Nos.1 & 2 are not parties to the said proceedings. The plaintiff has not challenged the execution of the sale deed dated 12.09.2016 which clearly goes to show that he has slept over his rights. Nothing prevented the plaintiff to question the said sale deed or to enforce his pre-emptory rights. The plaintiff has / 15 / O.S.No.3331/2021 issued legal notice dated 11.06.2019 wherein he has not whispered anything about demolishing of his building by the defendant Nos.1 & 2 and the said averments have been raised for first time in the plaint. Hence, the plaintiff may be put to strict proof of the said facts. The defendant Nos.1 & 2 came to be impleaded in O.S.No.5790/2016 by order dated 11.09.2019. However, the said defendants have no knowledge about the interim order passed in the said suit. The contends of para Nos.20 to 27 of the plaint are totally denied. It is well settled law that the right is lost when the pre-emptor permits a sale to be made to another person. In the present case, the right is lost when plaintiff permitted Sri.D.Devaraj and Sri.D.Lokesh to execute the Sale Deed dated 12.09.2016 in favour of defendant Nos.3 & 4 in respect of the schedule 'B' property. The plaintiff has not offered to buy the property by participating in the sale negotiations to exercise his right of pre-emption. Thus, there is no cause of action arisen to the plaintiff to file this suit. The cause of action one averred in the plaint is imaginary. The suit is hopelessly barred by law of limitation. On these and certain / 16 / O.S.No.3331/2021 other grounds, the defendant Nos.1 & 2 have prayed for dismissing the suit of the plaintiff with costs.
4. On the strength of respective pleadings and documents of the parties, this court has framed the following issues :
ISSUES (1) Whether the plaintiff proves that he has a preferential right (right of pre-emption) to purchase the schedule property in terms as pleaded in the plaint ?
(2) Whether the plaintiff further proves that the registered sale deed dated 23.01.2019 executed by defendant No.3 and 4 in favour of defendant No.1 and 2 in relation to the schedule B property is void document and not binding on him and as such said defendant No.1 and 2 are liable to re-convey the said schedule B property to him by accepting the sale consideration amount as reflected in the registered sale deed dated 23.01.2019 ?
/ 17 / O.S.No.3331/2021 (3) Whether the plaintiff is entitled to the various reliefs as prayed for in this suit ?
(4) To what decree or order ?
5. In order to prove the case, the plaintiff has got examined herself as P.W.1 and relied upon in all twenty nine documents marked at Exs.P.1 to P.29 and closed her side.
By way of rebuttal, the defendant Nos.1 & 2 have got examined the defendant No.1 as DW.1 and relied upon in all fourteen documents marked at Exs.D.1 to D.14 and closed their side.
6. I have heard Sri.Jayanthkrishna B.S., the learned counsel for the plaintiff and Sri.Mohan S Reddy., the learned counsel for the defendant Nos.1 & 2 who also filed his written arguments.
7. My findings to the above issues are as under:
ISSUE Nos.1 TO 3 : In the negative;
ISSUE NO.4 : As per final order passed
below for the following:
/ 18 / O.S.No.3331/2021
REASONS
8. ISSUE NOs.1 TO 3.
As these issues are interlinked with each other, I take them at one stretch for my consideration and determination to avoid repetition of facts.
It is a matter of record that, the larger extent of property bearing No.146/A situated at 5th Cross, 5th Main, 4th block, Rajajinagar, Bengaluru was partitioned among the plaintiff and his four brothers in a compromise decree dated 24.01.2001 in RFA No.188/2000 passed by Hon'ble High Court of Karnataka, Bengaluru. The five fragments made therein by virtue of partition were numbered as property bearing No.146/A, Khata No.48/1-1, 1-2, 1-3, 1-4, 1-5 & 1-6. The property bearing No.48/1-1 and 48/1-2 was fallen to the share of plaintiff's herein. The property No.48/1-3 was fallen to the share of plaintiff's younger brother Mr.D.Lokesh. The property No.48/1-4 was fallen to the share of plaintiff's another brother Mr.D.Devaraj. The property No.48/1-5 was fallen to the share of / 19 / O.S.No.3331/2021 plaintiff's another younger brother Mr.D.Yatiraj. The property No.48/1-6 was fallen to the share of plaintiff's another younger brother Mr.Radhakrishna. The plaintiff has produced the certified copies of the judgment and compromise decree dated 24.01.2001 passed in RFA No.188/2000 as per Exs.P.1 & P.2 respectively.
9. As can be seen from Ex.P.2 which is compromise decree in RFA No.188/2000, the parties in the said suit i.e., plaintiff and his four brothers had expressly agreed that, if anybody intends to sell his share for any reasons, he should sell his said share only in favour of family members and if none among the family members are inclined to purchase his share, then only he can sell his share to a third person other than the family members. Thus, the first option to purchase share of a sharer is given to the family members only.
10. It is a matter of record that, the elder brother of plaintiff Mr.Yatiraj had sold his portion of property bearing No.48/1-5 in favour of plaintiff for valuable sale consideration / 20 / O.S.No.3331/2021 of Rs.1,92,000/- by Regd. Sale deed dated 09.09.2004, the certified copy of which is produced on record as per Ex.P.3. It is also a matter of record that the plaintiff's younger brother Mr.Radhakrishna had executed a Will dated 02.04.2006 bequeathing his portion of property No.48/1-6 in favour of plaintiff. The plaintiff has not produced the said Will dated 02.04.2006. However, these above facts have been not much disputed by the defendants. Thus, by virtue of aforesaid Sale Deed dated 09.09.2004 (Ex.P.3) and Will Deed dated 02.04.2006, the plaintiff has become owner over the portion of property No.48/1-1, 1-2, 1-5 & 1-6 which was subsequently alloted a single PID No.22-5-48/1-1, which is also not much disputed.
11. It is also a matter of record that, at a rear side or western side of property No.146/A, there was a marginal land measuring 5 feet in width and 35 feet in length belonged to Karnataka Housing Board. By virtue of order dated 30.10.2007 in W.P.No.16171/2006 and order dated 28.05.2009 in W.P.No.4336/2009 passed by Hon'ble High Court of Karnataka, / 21 / O.S.No.3331/2021 the Karnataka Housing Board had alloted the said marginal land measuring 5 X 35 feet to the plaintiff by executing Regd. Sale deed dated 17.08.2009 which was subsequently rectified by execution of Regd. Rectification Deed dated 08.09.2009. The plaintiff has produced certified copies of the said Regd. Sale Deed dated 17.08.2009 and Regd. Rectification Deed dated 08.09.2009 as per Exs.P.6 & P.7 respectively and also the order copies of the aforesaid writ petitions as per Exs.P.4 & P.5 respectively. Thus, the plaintiff has become owner over the property bearing Khata No.48/1-1, 1-2, 1-5, 1-6 & 1-7 which is described as plaint schedule 'A' property herein.
12. It is a matter of record that, as there was interference from Mr.D.Lokesh and Mr.D.Devaraj in using the common staircase and passage measuring East-West 40 feet and North-South 5 feet totally 200 sq. feet, the plaintiff filed a suit in O.S.No.3595/2014 before CCH-45 seeking the relief of permanent injunction. The said suit ended in compromise decree dated 29.07.2015 by which the plaintiff's younger / 22 / O.S.No.3331/2021 brother Mr.D.Lokesh agreed to give up his right over the aforesaid common passage measuring 5 X 40 feet in favour of plaintiff and in lieu of that, the plaintiff also agreed to give up his rights over portion of schedule 'A' property to an extent of 3 X 34 feet in favour of Mr.D.Lokesh. The plaintiff has produced certified copies of the compromise petition as per Ex.P.8 and compromise decree as per Ex.P.9 passed in O.S.No.3595/2014. It is also a matter of record that, as Mr.D.Lokesh did not come forward to execute the Relinquishment deed, the plaintiff filed Execution petition No.2081/2015 before CCH-45 where a commissioner was appointed for execution of the said relinquishment deed and the said commissioner on behalf of Mr.D.Lokesh had executed Regd. Relinquishment Deed dated 04.06.2016 relinquishing right, title and interest over common passage measuring 5 X 40 feet in favour of plaintiff. The plaintiff has produced the certified copy of the said Regd. Relinquishment Deed dated 04.06.2016 as per Ex.P.10. Thus, the plaintiff has become owner over the common passage measuring 5 X 40 feet also.
/ 23 / O.S.No.3331/2021
13. It is also a matter of record that, the plaintiff filed a suit in O.S.No.4975/2011 against his younger brother Mr.D.Devaraj and Mr.D.Lokesh seeking mandatory injunction, recovery of possession, damages and for permanent injunction. The said suit came to be dismissed on 25.07.2016. The plaintiff preferred RFA No.1540/2016 challenging the said judgment and decree dated 25.07.2016 where in the parties had entered into a compromise and as a result, the said RFA No.1540/2016 was disposed off in terms of the said compromise petition on 09.06.2017. The plaintiff has produced the certified copies of judgment as per Ex.P.11 and compromise decree dated 09.06.2017 as per Ex.P.12 passed in the said RFA No.1540/2016 by Hon'ble High Court of Karnataka, where the plaintiff herein has expressly agreed that the defendant Nos.3 & 4 herein who has been subsequently impleaded therein are absolute owners of plaint schedule 'B' property plus running passage measuring to an extent of 3 X 34 (in all 502 sq. feet). These facts have been not in much dispute between the parties.
/ 24 / O.S.No.3331/2021
14. It is a matter of record that, the plaintiff filed another suit in O.S.No.5790/2016 against Mr.D.Lokesh seeking permanent injunction where the court has granted an order of temporary injunction restraining Mr.D.Lokesh from interfering with plaintiff's possession of the passage by order dated 10.08.2016, the certified copy of which is produced on record as per Ex.P.13. During the pendency of the aforesaid suit in O.S.No.5790/2016, the plaintiff's younger brothers Mr.D.Lokesh and Mr.Devaraj had sold portion of their property No.48/1-3 & 1-4 which is plaint schedule 'B' property herein in favour of daughter and son-in-law of Mr.Devaraj who are defendant Nos.3 & 4 herein by Regd. Sale deed dated 12.09.2016, the certified copy of which is produced on record as per Ex.P.14. As a result, the defendant Nos.3 & 4 came to be impleaded in O.S.No.5790/2016 by order dated 30.05.2017, the certified copy of which is produced on record as per Ex.P.15. Being aggrieved of aforesaid Sale Deed dated 12.09.2016 which is said to be in contravention of compromise decree dated 07.10.2017 in RFA No.1540/2016, the plaintiff filed Execution / 25 / O.S.No.3331/2021 petition No.4506/2018. During the pendency of said E.P.No.4506/2018, the defendant Nos.3 & 4 had sold the plaint schedule 'B' property in favour of defendant Nos.1 & 2 for valuable sale consideration of Rs.45 lakhs by executing Regd. Sale deed dated 23.01.2019, the certified copy of which is produced as per Ex.P.16 and the original copy of the said sale deed is also produced on record as per Ex.D.3 by defendant Nos.1 & 2. In view of this sale transaction, the plaintiff had withdrawn the E.P.No.4506/2018 on 05.08.2019 and accordingly, the said execution petition came to be dismissed as withdrawn.
15. It is also a matter of record that, the plaintiff being very much aggrieved by the execution of the Sale Deed dated 23.01.2019 filed an application at I.A.No.XII in O.S.No.5790/2016 to implead the defendant Nos.1 & 2 which came to be allowed by order dated 11.10.2019, the certified copy of which is produced on record as per Ex.P.25. Subsequently, the plaintiff filed I.A.No.XIV in the said suit for / 26 / O.S.No.3331/2021 amending the plaint in terms of fresh para No.6(B) to 6(L), 7(A) and fresh prayer in terms of A-1 to A-3 as against defendant Nos.1 & 2 herein. However, the said I.A.No.XIV came to be dismissed by order dated 06.03.2021 observing that in a suit for bare injunction, the plaintiff cannot seek such amendment and if at all the plaintiff has got any such right, he has to challenge the sale deeds and file separate suit against the defendant Nos.4 & 5 who are defendant Nos.1 & 2 herein. The plaintiff has produced certified copy of the said order dated 06.03.2021 as per Ex.P.29. Thereafter, the plaintiff filed I.A.No.XVII in the said suit under Order 23 Rule 1 CPC seeking permission to withdraw the said suit with liberty to file fresh suit on the same cause of action, certified copy of which is produced on record as per Ex.D.1. When the said I.A.No.XVII was still pending for consideration in the said suit, the plaintiff filed this present comprehensive suit in O.S.No.3331/2021 against defendant Nos.1 to 4. As a result, the defendant Nos.4 & 5 in the said suit filed a memo through their counsel inter alia stating that the plaintiff already filed a O.S.No.3331/2021 and / 27 / O.S.No.3331/2021 as such the I.A.No.XVII may be allowed without according liberty to file fresh suit. Accordingly, the said suit i.e., O.S.5790/2016 came to be dismissed as withdrawn without liberty to file fresh suit by order dated 30.09.2021, the certified copy of which is produced on record as per Ex.D.2.
16. It is a matter of record that, the plaintiff had caused to issue a legal notice dated 11.06.2019 through his counsel to the defendants inter alia stating that the Sale deed dated 23.01.2019 in favour of defendant Nos.1 & 2 by defendant Nos.3 & 4 is in contravention of the terms of the compromise decree dated 24.01.2001 in RFA No.188/2000 and therefore called upon the defendant Nos.1 & 2 to re-convey the schedule 'B' property in favour of plaintiff recognising his pre- emptive right. The office copy of the said legal notice dated 11.06.2019 is produced on record as per Ex.P.17. The defendant Nos.1 & 2 gave reply dated 01.07.2019 through their counsel to the said legal notice dated 11.06.2019 which is produced on record as per Ex.P.18. The said legal notice issued to the / 28 / O.S.No.3331/2021 defendant Nos.3 & 4 herein returned unserved. The returned postal covers are produced on record as per Exs.P.19 & 20 respectively. PW.1 who is plaintiff has reiterated all these above facts in his evidence.
17. It is also a matter of record that, the plaintiff, anticipating that the defendant Nos.1 & 2 get their names entered in the khata of the schedule 'B' property, filed statement of objections dated 30.04.2019 before BBMP, the office copy of which is produced as per Ex.P.21. By the time the said objection was raised, BBMP had already accepted the joint names of defendant Nos.1 & 2 in the khata. Therefore, for reconsideration of the change in the khata, the matter was referred before the Joint Commissioner of BBMP which is evident from the letter of BBMP dated 25.11.2019 marked at Ex.P.22. The plaintiff also preferred Appeal No.09/2019-20 before the Joint Commissioner, BBMP, Malleshwaram Bengaluru for cancellation of the khata effected in the name of defendant Nos.1 & 2 in respect of the schedule 'B' property. The / 29 / O.S.No.3331/2021 certified copy of the said memorandum of appeal is produced on record as per Ex.P.23. PW.1 has reiterated all these above facts in his evidence.
18. Now, I shall switch to consider whether the plaintiff has a preferential right (right of pre-emption) to purchase schedule 'B' property. As can be seen from the evidence adduced on record, one late Sri.R.Dharma Naidu was father of plaintiff and his four brothers and a sister viz., D.Devaraj, D.Radhakrishna, D.Yatindra, D.Lokesh and Smt.Pushpalatha. They all constituted a Joint Hindu Family governed by Mitakshara School. Late Sri.R.Dharma Naidu was propositus of the said joint family. After his demise, the plaintiff and his siblings had inherited the larger extent of the property No.146/A, Khata No.148/1 situated at 5th Main Road, 4th Block, Rajajinagar, Bengaluru. By virtue of compromise decree dated 24.01.2001 in RFA No.188/2000 passed by Hon'ble High Court of Karnataka which is produced on record as per Ex.P.1, the said larger extent of the property No.146/A was / 30 / O.S.No.3331/2021 divided amongst the plaintiff and his brothers. In the said compromise, plaintiff and his brothers have specifically agreed that if anybody among them intends to sell his share for any reasons, he shall sell his said share among the family members only and if nobody in the family members inclined to purchase the said share, he can sell his share to any body other than the family members. Thus, the first option to purchase the share was given to the family members only in recognition of right of pre-emption, which is contemplated under Sec.22 of the Hindu Succession Act, 1956. The provisions of Sec.22(1) of Hindu Succession Act, 1956 reads as under;
(1) Where, after the commencement of this Act, an interest in any immovable property of an intestate, or in any business carried on by him or her, whether solely or in conjunction with others, devolves upon two or more heirs specified in class I of the Schedule, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred.
/ 31 / O.S.No.3331/2021 A bare perusal of the aforesaid provisions of Sec.22 make it very clear that, the preferential right contemplated therein applies when a property of an intestate male or female devolves upon two or more heirs specified in Class I of the schedule and if any one of such heirs proposes to transfer his or her interest in the property, the other heirs would have a preferential right to acquire interest proposed to be transfered. However, in the present case in hand, the larger extent of the property belonging to the erstwhile joint family comprised of plaintiff and brothers was already divided amongst them in terms of the compromise decree dated 24.01.2001 passed in RFA No.188/2000. The agreement entered between the plaintiff and his four brothers creating a right of pre-emption, therefore did not correspond to a statutory right recognized under Sec.22 of the Hindu Succession Act. Assuming that Sec.22 of the Act applies, what is important to be seen is that the right of pre- emption recognized under Sec.22 of the Act is available only amongst Class I heirs of the schedule provided in the Hindu Succession Act, 1956. Admittedly, the plaintiffs younger / 32 / O.S.No.3331/2021 brothers namely D.Lokesh and D.Devaraj have sold their portion of property bearing 146/A, Khata No.48/1-3 & 1-4 which is schedule 'B' property herein in favour of daughter and son- in-law of D.Devaraj i.e., defendant Nos.3 & 4 herein for valuable sale consideration of Rs.44,75,000/- by Regd. Sale Deed dated 12.09.2016 (Ex.P.14). Daughter is a Class- I legal heir whereas the son-in-law is not a Class-I heir. It therefore clear that, the sale of schedule 'B' property in favour of defendant Nos.3 & 4 herein by D.Devaraj and D.Lokesh is in contravention of the compromise decree passed in RFA No.188/2000 creating a right of pre-emption. Admittedly, the plaintiff has not challenged the legality, validity and correctness of the said Regd. Sale Deed dated 12.09.2016. It therefore follows that, the plaintiff had waived his preferential right created in the compromise decree passed in RFA No.188/2000 to purchase the schedule 'B' property. The pre-emption right is a very weak right exercisable for the first time when the cause of such a right arises and such a right is not available on a subsequent sale transaction relating to the same immovable property. I / 33 / O.S.No.3331/2021 may support my this view from a decision of Hon'ble Apex Court reported in Raghunath (Dead) by Legal Representatives V/s Radha Mohan (Dead) through Legal Representatives and others reported in 2020 SCC On Line SC
828. Thus, the plaintiff had lost the right to enforce preferential right created in the compromise decree passed in RFA No.188/2000 by waiver of his such right when the sale deed dated 12.09.2016 was executed in favour of defendant Nos.3 & 4 in respect of the schedule 'B' property by his own brothers namely D.Devaraj and D.Lokesh.
19. Assuming that, the preferential right created in the compromise decree passed in RFA No.188/2000 is still available to the plaintiff, the next question that falls for my consideration is whether the said agreement creating pre-emption right is binding to the defendant Nos.3 & 4. It is to note that, when a compromise decree is passed in RFA No.188/2000 pursuant to the agreement entered between the plaintiff and his four brothers creating right of pre-emption that in the event of sale / 34 / O.S.No.3331/2021 of any share, the sharer should first offer to buy his said share to the other heirs binds only to the parties of the said agreement / compromise decree. As already said, the said agreement between the plaintiff and his two brothers creating pre-emption right did not correspond to a statutory right recognized under Sec.22 of the Hindu Succession Act, 1956. Therefore, the said agreement / compromise decree binds only to the parties to the said agreement. The defendant Nos.3 & 4 were not parties to the said agreement / compromise decree in RFA No.188/2000. Therefore, the plaintiff is not entitled to enforce the said Clause creating pre-emption right in the agreement against defendant Nos.3 & 4 who are not parties to the said compromise decree in RFA No.188/2000. I may support by this view from a decision of out own Hon'ble High Court of Karnataka, Dharwad Bench rendered in the case of Ananth Venkatraman Hegde and Ors. Vs Ramachandra Laxman Khod and Ors reported in 2022/KHC-D-11039. Thus, looked from this angle also, it is evident that the plaintiff is not entitled to enforce the pre-emption right against the defendants.
/ 35 / O.S.No.3331/2021 Therefore, this suit filed by the plaintiff seeking re-conveying the schedule 'B' property in his favour from defendant Nos.1 & 2 by execution of the sale deed is not maintainable and liable to be rejected.
20. Assuming that the alleged pre-emption right still available to the plaintiff, whether the said right is barred by limitation is a point to be taken into consideration. It is to note that, as per Article 97 of the Limitation Act 1963, the period of limitation prescribed to enforce a right of pre-emption is one year from the date when the purchaser takes physical possession of the whole or part of the property sold or when the instrument of sale is registered, if physical possession is not delivered. In the present case, the defendant Nos.1 & 2 have purchased the schedule 'B' property from defendant Nos.3 & 4 by Regd. Sale Deed dated 23.01.2019 (Ex.D.3) followed by delivery of physical possession. Therefore, the plaintiff should have filed this suit within one year from the date of said sale transaction i.e., on or before 24.01.2020. However, the plaintiff has filed this suit on 30.06.2021. As can be seen from the / 36 / O.S.No.3331/2021 evidence adduced on record, the plaintiff filed a suit in O.S.No.5790/2016 against Mr.D.Lokesh seeking permanent injunction from interfering with plaintiff's possession of common passage in the schedule 'A' property. After alienation of the schedule 'B' property in favour of defendant Nos.1 & 2, the plaintiff filed I.A.No.XII to implead the defendant Nos.1 & 2 in the said suit which came to be allowed by order dated 11.10.2019 (Ex.P.25). Subsequently, the plaintiff filed I.A.No.XIV in the said suit for amendment of the plaint seeking to insert fresh paras and fresh reliefs agaisnt defendant Nos.1 & 2 herein who were defendant Nos.4 & 5 therein. The said amendment application i.e., I.A.No.XIV came to be rejected by order dated 06.03.2021 (Ex.P.29) by observing that, if at all the plaintiff has got any preferential right, he has to challenge the sale deeds and file separate suits against the defendant Nos.4 & 5 and he cannot seek the said reliefs in a bare injunction suit. The plaintiff has not challenged the said order dated 06.03.2021 passed on I.A.No.XIV where it is specifically observed that if at all the plaintiff has got any such right, he has to challenge the / 37 / O.S.No.3331/2021 sale deeds and file separate suit. This observation of the court by no any stretch of imagination can be construed as according permission to file a fresh suit irrespective of law of limitation. Therefore, any such fresh suit that would be filed is subject to law of limitation. It is to note that, after rejection of the amendment application, the plaintiff filed I.A.No.XVII in the said suit in O.S.No.5790/2016 under Order 23 Rule 1 CPC seeking permission to withdraw the suit with liberty to file fresh suit on the same cause of action. Even when the said I.A.No.XVII was pending in the said suit for consideration, the plaintiff filed this present comprehensive suit on 30.06.2021. As a result of filing of this suit, the aforesaid I.A.No.XVII came to be allowed without according liberty to file fresh suit by order dated 30.09.2021. Thus, the present suit is subject to law of limitation and the time spent by the plaintiff in litigating the matter in O.S.No.5790/2016 cannot be given a set off in calculating the period of limitation. Looked from this angle, I am of the considered opinion that the present suit of the plaintiff filed for enforcing his alleged right of pre-emption / 38 / O.S.No.3331/2021 created in the compromise decree dated 24.01.2001 in RFA No.188/2000 passed by Hon'ble High Court of Karnataka is clearly barred by Article 97 of Law of Limitation Act, 1963. Now once it is arrived to a conclusion that the plaintiff had waived off his preferential right created in the compromise decree passed in RFA No.188/2000 by not challenging the Regd. Sale Deed dated 12.09.2016 executed by D.Devaraj and D.Lokesh in favour of defendant Nos.3 & 4 in respect of the schedule 'B' property and he is not entitled to enforce his said right during subsequent sale transaction as per the sale deed dated 23.01.2019 in respect of the same immovable property and even his right to enforce against defendant Nos.1 & 2 is barred under Article 97 of the Limitation Act 1963, it automatically follows that the plaintiff is dis-entitled to the declaratory reliefs as sought for in the plaint and also to the reliefs sought for re- conveying the schedule 'B' property in his favour by defendant Nos.1 & 2 by executing Regd. Sale Deed accepting the sale consideration amount as reflected in the Regd. Sale deed dated 23.01.2019.
/ 39 / O.S.No.3331/2021
21. Now I shall switch on to consider whether the plaintiff is entitled to the relief of permanent injunction restraining the defendants from interfering plaintiff's possession of schedule 'A' property and also restraining the defendants from alienating the schedule 'B' property in favour of third person and also restraining the defendants from demolishing the compound wall put up towards southern side of the schedule 'A' property and from putting constructions in the area of 5 X 10 i.e., 50 sq. feet of marginal land of schedule 'A' property. It is to note that, at a rear side or western side of property No.146/A, there was a marginal land measuring 5 feet in width and 35 feet in length belonged to Karnataka Housing Board. By virtue of order dated 30.10.2007 in W.P.No.16171/2006 and order dated 28.05.2009 in W.P.No.4336/2009 passed by Hon'ble High Court of Karnataka, the Karnataka Housing Board had alloted the said marginal land measuring 5 X 35 feet to the plaintiff by executing Regd. Sale deed dated 17.08.2009 which was subsequently rectified by execution of Regd. Rectification Deed dated 08.09.2009. The / 40 / O.S.No.3331/2021 plaintiff has produced certified copies of the said Regd. Sale Deed dated 17.08.2009 and Regd. Rectification Deed dated 08.09.2009 as per Exs.P.6 & P.7 respectively and also the order copies of the aforesaid writ petitions as per Exs.P.4 & P.5 respectively. Thus, the plaintiff has become owner over the property bearing Khata No.48/1-1, 1-2, 1-5, 1-6 & 1-7 which is described as plaint schedule 'A' property herein. As per the case of the plaintiff, after purchasing the schedule 'B' property by defendant Nos.1 & 2, they wrongfully trespassed the schedule 'A' property and demolished the existing structures of the plaintiff by encroaching the marginal land to an extent of 5 X 10 i.e., 50 sq. feet alloted by KHB and the said high handed acts of the defendant Nos.1 & 2 was in violation of interim order passed in O.S.No.5790/2016 and as such the plaintiff filed a police complaint on 25.05.2019 with jurisdictional police and when the said police did not take any action, he gave representations to the DCP & ADGP and when the said higher police officers have also not responded favorably, he filed W.P.No.46659/2019 where by order dated 25.09.2019, the / 41 / O.S.No.3331/2021 Hon'ble High Court of Karnataka has directed the jurisdictional police to a register case and conduct investigation against defendant Nos.1 & 2. Accordingly, the police registered the case and doing investigation. The plaintiff has produced the certified copy of the order dated 25.09.2019 passed in W.P.No.46659/2019 as per Ex.P.26 and copy of FIR as per Ex.P.27 and copy of the complaint as per Ex.P.28. Except these documents, the plaintiff has literally produced no other corroborative records to show that there was building existing in the marginal land and the defendant Nos.1 & 2 have demolished the said building in a portion of 50 sq. feet in the said marginal land by their high handed acts. In the course of cross-examination PW.1 has deposed thus;
'' .....ಮರರನಲಲಲ ಲಡನಲಲ ಪಪ ತವದ 1 ಮತತ 2 ಇವರ ಯವದ ಕಟಟ ಡ ಕಡವಲಲ ಏಕಲದರ ಅಲಲ ಯವದ ಕಟಟ ಡ ಇರಲಲಲ ಅಲತ ಅಲದರ ಅಲಲ 1 ನ ಮತತ 2 ನ ಮಹಡ ಕಟಟ ಡ ಇತತ ಅದನನ ಕಡವದದ ರ. ಅಲಲ ಮದಲ ಮತತ ಎರಡನ ಮಹಡ ಇತತ ಅಲತ ತತರಸಲ ಅನಮತದತ ಕಟಟ ಡ ನಕಕ ಇದಯ ಎಲದ ಕಳದ ಪಪ ಶನ ಗ ಖರತದ ಪತಪ ಇತತ ಅಲತ ಉತತ ರಸತತ ರ. ಸದರ ಮದಲ ಮತತ ಎರಡನಯ ಮಹಡಯ ತರಗ ಕಟಟ ದ ರಶತದಗಳನನ ನನ ಈ ಕಸನಲಲ / 42 / O.S.No.3331/2021 ಹಜರಪಡಸರವದಲಲ .... ನ.ಪ.3 ಮತತ 4 ರಟ ಅರರಗಳಲಲ ಸದರ 5 ಇಲಟ 35 ಅಡ ಜಗ ಖಲ ಜಗ ಅಲತ ನನ ಕಣಸದದ ನ ಅಲತ ಅನನ ವದ ನಜ. ....'' Thus, the plaintiff himself has categorically admitted that he had shown the marginal land as a vacant property in the writ proceedings. The plaintiff has also admitted that, he had not produced the approved building plan obtained for the construction of the building in the marginal land. He has also admitted that, he had not produced any tax paid receipts in respect of the building existed in the marginal land. It is needless to say that, all these above documents are vital documents to prove that there was building existed in the marginal land alloted to him by KHB and the defendant Nos.1 & 2 have demolished the said building in an area of 50 sq. feet by their high handed act. In the absence of these vital documents, merely on the basis of complaint lodged with the jurisdictional police which allegations is yet to be proved in the criminal court, a conclusion cannot be made that there was building existed in the marginal land and the defendant Nos.1 & 2 have / 43 / O.S.No.3331/2021 demolished the said building in an area of 50 sq. feet in the said marginal land by encroaching in the schedule 'A' property. It is worth to note that, DW.1 who is defendant No.1 herein in the course of his cross-examination has categorically in unequivocal terms has stated that, there was no any building in the marginal land and as such the question of demolishing any such building by him does not arise at all. He has gone to the extent of stating that, he has absolutely no any objection to take possession of the said marginal land measuring to an extent of 5 X 10 feet by plaintiff. Thus, it is very clear that the plaintiff has miserably failed to prove that the defendant Nos.1 & 2 have interfered with or tried to interfere with in his peaceful possession of plaint schedule 'A' property by demolishing the construction in an area of 5 X 10 i.e., 50 sq. feet in the marginal land of the schedule 'A' property. Therefore it follows that, the plaintiff is not entitled to the reliefs of permanent injunction as prayed at Sl. No.(iv) & (vi) in the prayer column of the plaint.
/ 44 / O.S.No.3331/2021
22. As the plaintiff has failed to establish his
preferential right to buy the schedule 'B' property from defendant Nos.1 & 2 it follows that the plaintiff is also not entitled to the relief of permanent injunction restraining the defendants from alienating the schedule 'B' property in favour of any third person as prayed for at Sl.No.(v) in the prayer column of the plaint.
23. So far as the relief of permanent injunction sought for restraining the defendants from demolishing or interfering with or obstructing the compound wall put up towards southern side of schedule 'A' property as prayed for at Sl.No.
(vii) in the prayer column of the plaint is concerned, absolutely there is no evidence adduced on record over the said aspect of the matter by the plaintiff. Therefore, in the absence of evidence, the plaintiff is not entitled to the said relief of permanent injunction as sought for at Sl.No.(vii) in the prayer column of the plaint.
/ 45 / O.S.No.3331/2021
24. Now I shall switch on to consider whether the defendant Nos.1 & 2 are bonafide purchasers for valuable sale consideration amount without noticing the alleged pre-emption right of the plaintiff. It is worth to note that, DW.1 who is defendant No.1 herein in the course of his cross-examination has stated thus;
'' .... ನ.ಪ.14 ರಲಲ ಉಲಲ ತಖ ಮಡದ ಆರ.ಎಫ.ಎ ನ.188/2000 ಕರತ ನನಗ ವಕತಲರ ಏನನನ ಹಳರವದಲಲ .
ಸದರ RFA ಪಪ ಕರಣದಲಲ ನಡದರವ ಸತಲ ಲಶಗಳನನ ನಮಮ
ವಕತಲರ ಹಳರವದಲಲ . ಸಕಕ ಯ ತನಗಯ
ಹಳವದನಲದರ ನಮಮ ವಕತಲರ ದವ ಆಸತ ಯ ಕರತ
ದಖಲಗಳನನ ಪರಶತಲಸಲ ಒಲದ ವರ ಸಮಯವಕಶ
ತಗದಕಲಡ ಚಕ ಮಡ ಎಲಲ ಸರ ಇದ ಅಲತ ನನಗ
ಹಳದರ. ... ದವಯ 'ಬ' ಸಸ ತತ ನನ ನನ ಅದರ ಹಲದನ
ದಖಲಗಳನನ ಪರಶತಲಸದ ಮತತ ಪವರ ಪರ ವಚರ
ಮಡದ ಖರತದಸದದ ತನ ಅಲತ ಅಲದರ ವಕತಲರ ಕನನ
ಸಲಹ ಪಡದ ಖರತದಸದದ ತನ. .... ಆರ.ಎಫ.ಎ ನ.188/2000 ರ ತತಪರನಲಲ ದವಯ ಸಸ ತತ ಮರಟ ಮಡಬಕದ ಸಧರರ ಬದಲಲ ಕಟಲರದ ಸದಸಲ ರಗ ಮತಪ ಮರಟ ಮಡತಕಕ ದದ ಎಲಬದಗ ನಣರಯಸದ ಎಲದರ ಸದರ ಸಗತ ನಮಮ ವಕತಲರಗ ಗತತ . ದವಯ 'ಬ' ಸಸ ತತ ನ ಕರತ ಪವರ ಪರ ಸಗತಗಳನನ ವಚರಣ ಮಡದ ನನ ಖರತದಸದದ ತನ ಅಲತ ಅನನ ವದ ಸಳಳ . ಈ ರತತ ಪವರ ಪರ ವಚರಣ ಮಡವ ಸಧರರದಲಲ ದವ ಸಸ ತತ ಕವಲ ಮಲತಕರ ಕಟಲರದ / 46 / O.S.No.3331/2021 ಸದಸಲ ರಗ ಮತಪ ಮರಟ ಮಡತಕಕ ದದ ಎಲಬದಗ ನಣರಯಸಲಗದ ಎಲರ ವಷಯ ನಮಗ ತಳದಬದತತ ಅಲತ ಕಳದ ಪಪ ಶನ ಗ ಸಕಕ ಯ ನಮಮ ವಕತಲರ ದಖಲಗಳನನ ಪರಶತಲಸದದ ರ, ಎಲಲ ಸರ ಇದ ಅಲತ ಹಳದದ ರಲದ ನನ ಖರತದಸದದ ತನ. ....ಪಪ ತವದ 3 ಮತತ 4 ಇವರಗಳ ನನಗ ಮರಟ ಮಡದ ಸಸ ತತ ನ ಕರತ ಆರ.ಎಫ.ಎ ನ.188/2000 ತತಪರನ ಅನಸ ಯ ಅವರಗ ಮಲತಕತಸ ಲಭಸದ ಅಲತ ಅನನ ವದ ನನಗ ಮಹತ ಇಲಲ . ಸದರ ತತಪರನಲಲ ಸದರ ಸಸ ತತ ನನ ಮರಟ ಮಡಬಕದರ ಒಟಟ ಕಟಲರದ ಸದಸಲ ರಗ ಮತಪ ಮರಟ ಮಡತಕಕ ದದ ಅಲತ ನಣರಯಸರವದ ನನಗ ಗತತ ದದ ಕಡಮ ಬಲಯಲಲ ಸಸ ತತ ಪಡಯಲ ಮತತ ವದಯ ಸಸ ತತ ಕರಳಸಲ ನನ ಅದನನ ಖರತದಸದದ ತನ ಅಲತ ಅನನ ವದ ಸಳಳ . ....ನ.ಪ.18 ರ ಉತತ ರದಲಲ ನನ ಆರ.ಎಫ.ಎ ನ.188/2000 ತತಪರನ ಅಲಶಗಳನನ ಒಪಪ ಕಲಡದದ ತನ ಅಲತ ಅನನ ವದ ನಜ.
ಹಗದದ ರ ದವಯ 'ಬ' ಸಸ ತತ ನತವ ವದಗ ಖರತದ ಕಡಲ ಸದದ ರದದ ತರ ಅಲತ ಕಳದ ಪಪ ಶನ ಗ ಸಕಕ ಯ ಪಪ ತವದ 3 ಮತತ 4 ಇವರ ಮಲ ಸದರ ಸಸ ತತ ನನ ಕಟಲರದ ಸದಸಲ ರಗ ಮರಟ ಮಡಬಕ ಅಲತ ಯವದ ಷರತತ ಇರಲಲಲ ಹತಗಗ ಅವರ ನನಗ ಮರಟ ಮಡದದ ರ ಅದದ ರಲದ ನನ ದವಯ 'ಬ' ಸಸ ತತ ನನ ವದಗ ಕಪ ಯಕಕ ಕಡವದಲಲ ಅಲತ ಉತತ ರಸತತ ರ...'' Further PW.1 who is plaintiff herein also in the course of his cross-examination has categorically stated thus;
'' .... ನ.ಪ.17 ನತಟತಸನಲಲ ಪಪ ತವದಯರಗ ದವ ಆಸತ ಯ ಕರತ ಪಪ ಯಷನಹಕಕ ನ ರಗಗ ಈ ಮದಲ ಮಹತ / 47 / O.S.No.3331/2021 ಇತತ ಎನನ ವದರ ರಗಗ ನನ ಹಳಲಲ ಅಲತ ಅನನ ವದ ನಜ. .... ಪಪ ತವದ ನ. 1 ಮತತ 2 ಇವರಗ ದವ ಸಸ ತತ ಖರತದಸವ ಸಮಯದಲಲ ನನನ ಪಪ ಯಷನ ಹಕಕ ನ ರಗಗ ಮಹತ ಇರಲಲಲ ಅದದ ರಲದ ಅವರ ಬತನಪಡ ಪಚರಜರ ಆಗರತತ ರ ಅಲತ ಅನನ ವದ ಸಳಳ . ಪಪ ಯಷನಹಕಕ ನ ರಗಗ ರವನಲ ದಖಲಗಳಲಲ ನಮದ ಇರದ ಇರವ ಕರಣಕಕ ಗ ಪಪ ತವದ 1 ಮತತ 2 ಇವರಗ ಅದರ ಕರತ ಮಹತ ಇರಲಲಲ ಅಲತ ಅನನ ವದ ಸಳಳ . ದವ ಸಸ ತತ ನನ ಖರತದಸವ ಪವರದಲಲ ಪಪ ತವದ ನ.1 ಮತತ 2 ಇವರಗ ನನನ ಪಪ ಯಷನ ಹಕಕ ನ ರಗಗ ಅರವ ಇತತ ಅಲತ ಹಳಲ ಯವ ಆಧರವದ ಅಲತ ಕಳದ ಪಪ ಶನ ಗ ಅಸಲ ದವ ನ. 5790- 2016 ರಲಲ ಯ ಆದಶವ ಆಧರ ಇರತತ ದ. ..... '' Undisputedly, the defendant Nos.1 & 2 had purchased the pliant schedule 'B' property from defendant Nos.3 & 4 for valuable sale consideration of Rs.45 lakhs by Regd. Sale Deed dated 23.01.2019 as per Ex.D.3. The plaintiff is asserting that he has got a preferential right by virtue of agreement / compromise decree passed in RFA No.188/2000 to buy the schedule 'B' property and as such the Sale Deed dated 23.01.2019 is a void document and not binding on him. The facts elicited in the course of cross-examination of DW.1 which are extracted herein above paragraphs indicate that, the defendant No.1 do / 48 / O.S.No.3331/2021 not know reading and writing in Kannada or English language. All that done by defendant No.1 before purchasing the schedule 'B' property was he consulted with his lawyer and obtained legal opinion. After verifying the documents, he was advised to buy the property and accordingly he along with defendant No.2 purchased the schedule 'B' property from defendant Nos.3 & 4. The agreement between the plaintiff and his brother creating pre-emption right as reflected in the compromise decree in RFA No.188/2000 is not reflected or entered any where in the revenue documents pertaining to the schedule 'B' property. Even there is no any notice board displayed in the vicinity of the schedule 'B' property indicating the preferential right of the plaintiff to buy the said property. Thus, the defendant Nos.1 & 2 had no any occasion or have come across any means so as to get the knowledge of the preferential right of the plaintiff created in the compromise decree. Even the plaintiff has not stated any where in his legal notice marked at Ex.P.17 that the defendant Nos.1 & 2 had knowledge of his preferential right and knowing full well about the said right, they purchased the / 49 / O.S.No.3331/2021 schedule 'B' property. This fact has been clearly admitted by PW.1 in his cross-examination which is extracted supra. Thus, there is nothing adduced on record by the plaintiff so as to indicate that the defendant Nos.1 & 2 were having knowledge about the pre-emption right of the plaintiff over schedule 'B' property. Therefore, the defendant Nos.1 & 2 are bonafide purchasers for valuable sale consideration amount without notice of pre-emption right of the plaintiff. As already said, the right of pre-emption is a very weak right. The pre-emptor is bound to show not only that his right is as good as that of vendee but it is superior to that of the vendee. Thus, the right of pre-emption is a very weak right capable of being defeated by all legitimate methods. In the present case, the defendant Nos.1 & 2 have proved that they are bonafide purchasers for valuable sale consideration without notice of pre-emption right of the plaintiff and thus they have defeated the very weak right of pre-emption of the plaintiff. With these observations, I shall conclude my discussions with the following conclusions :
/ 50 / O.S.No.3331/2021
a) The plaintiff has miserably failed to prove that he has a preferential right (right of pre- emption) to purchase the schedule 'B' property as on the date of the suit. Accordingly, the Issue No.1 framed herein above is answered in the negative against the plaintiff.
b) The plaintiff has also miserably failed to prove that the Regd. Sale Deed dated 23.01.2019 executed by defendant Nos.3 & 4 in favour of defendant Nos.1 & 2 in respect of the plaint schedule 'B' property is a void document and not binding on him and as such the defendant Nos.1 & 2 are liable to re-convey the said schedule 'B' property to him by accepting the sale consideration amount as reflected in the Regd. Sale Deed dated 23.01.2019 by executing the sale deed. Accordingly, the Issue No.2 framed herein above is answered negative against the plaintiff.
c) While discussing the Issue Nos.1 to 3 in common, I have given my findings that the plaintiff had waived off his pre-emption right created by virtue of compromise decree in RFA No.188/2000 by not challenging the Regd. Sale Deed dated 12.09.2016 executed by Sri.D.Devaraj and / 51 / O.S.No.3331/2021 Sri.D.Lokesh in favour of defendant Nos.3 & 4 in respect of the schedule 'B' property and as such the plaintiff has lost the said right of pre-emption as on the date of suit. This court has also held that, the defendant Nos.3 & 4 are not bound by the compromise decree passed in RFA No.188/2000 which has created pre-emption right as they were not parties to the said agreement and as such their sale transaction with defendant Nos.1 & 2 by executing the sale deed dated 23.01.2019 is not in contravention of the said compromise decree. This court has also held that, this suit of the plaintiff seeking to enforce his alleged pre-emptive rights is barred by Article 97 of the Limitation Act, 1963. This court has also held that, the defendant Nos.1 & 2 are bonafide purchasers for valuable sale consideration without notice of the alleged pre- emption right of the plaintiff over schedule 'B' property. This court has also held that, the plaintiff has utterly failed to prove that the defendants have interfered with in his possession of schedule 'A' property and also failed to prove that the defendant Nos.1 & 2 have demolished plaintiff's building in an area of 50 sq. feet in the marginal land of schedule 'A' property. This court has also held that, the / 52 / O.S.No.3331/2021 plaintiff having failed to prove his subsisting right of pre-emption is not entitled to restrain the defendant Nos.1 & 2 from alienating the schedule 'B' property in favour of third persons. In view of my all such findings, it automatically follows that the plaintiff is not entitled to declaratory and injunctive reliefs as sought for in the plaint. Accordingly, the Issue No.3 framed herein above are answered in the negative against the plaintiff.
25. ISSUE No.4 In view of my findings given on Issue Nos.1 to 3 and for the reasons discussed herein above paragraphs, I proceed to pass the following:
ORDER The suit of the plaintiff is hereby dismissed.
Under the circumstances of the case, the parties are directed to bear their own costs. Draw up decree accordingly.
(Dictated to the Stenographer, typed directly on computer, script corrected, signed and then pronounced by me in the open court, this the 04th date of January, 2024.) (YASHAWANT R TAWARE) XXXIX Addl. City Civil & Sessions Judge, Bangalore City.
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ANNEXURE
1. List of witnesses examined on behalf of plaintiff:
P.W.1 D. Bhakthavasathala
2. List of documents exhibited on behalf of plaintiff:
Ex.P.1 Certified copy of the order in RFA No.188/2000 Ex.P.2 Certified copy of the decree in RFA No.188/2000 Ex.P.3 Certified copy of the registered Sale Deed dated 09.09.2004 Ex.P.4 Certified copy of order in W.P.No.16171/2006 Ex.P.5 Certified copy of order in W.P.No.4336/2009 Ex.P.6 Certified copy of Sale Deed dated 17.08.2009 Ex.P.7 Certified copy of rectification deed dated 08.09.2009 Ex.P.8 Certified copy of compromise petition in O.S.3595/2014 Ex.P.9 Certified copy of compromise decree in O.S.3595/2014 Ex.P.10 Certified copy of Court relinquishment deed Ex.P.11 Certified copy of judgment in RFA No.1540/2016 Ex.P.12 Certified copy of decree in RFA No.1540/2016 / 54 / O.S.No.3331/2021 Ex.P.13 Certified copy of order sheet in O.S.No.5790/2016 Ex.P.14 Certified copy of registered sale deed dated 12.09.2016 Ex.P.15 Certified copy of order sheet in O.S.No.5790/2016 Ex.P.16 Certified copy of registered sale deed dated 23.01.2019 Ex.P.17 Certified copy of office copy of legal notice dated 11.06.2019 Ex.P.18 Reply to the legal notice Ex.P.19 & Returned postal cover P.20 Ex.P.21 Office copy of the letter dated 30.04.2019 Ex.P.22 BBMP Endorsement Ex.P.23 Certified copy of appeal memo in Appeal No.9/2020 Ex.P.24 8 Digital photos Ex.P.25 Certified copy of IA order in O.S. 5790/2016 Ex.P.26 Certified copy of order in W.P.No.46659/2019 Ex.P.27 Certified copy of FIR / 55 / O.S.No.3331/2021 Ex.P.28 Certified copy of police compliant dated 27.12.2019 Ex.P.29 Certified copy of I.A order in OS 5790/2016
3. List of witnesses examined on behalf of defendants:
D.W.1 Kamalesh Kumar
4. List of documents exhibited on behalf of defendants:
Ex.D.1 Certified copy of application filed under Order
23 Rule 1 of CPC in O.S.No.5790/2016
Ex.D.2 Certified copy of order passed in
O.S.No.5790/2016
Ex.D.3 Original Regd. Sale Deed dated 23.01.2019
Ex.D.4 Original Uttarapatra
Ex.D.5 Original Khata certificate
Ex.D.6 Original Khata extract
Ex.D.7 Encumbrance certificate
Ex.D.8 Tax paid receipt
Ex.D.9 Office copy of compliant dated 12.03.2020
Ex.D.10 Acknowledgment of police
/ 56 / O.S.No.3331/2021
Ex.D.11 Office copy of the application to BBMP Ex.D.12 Four digital photos Ex.D.13 Photo CD Ex.D.14 Photographers fee paid receipt.
(YASHAWANT R. TAWARE), XXXIX Addl. City Civil & Sessions Judge, Bangalore City.
Digitally signed by YASHWANT
YASHWANT RAMAKRISHNA
RAMAKRISHNA TAWARE
TAWARE Date:
2024.01.06
13:13:54 +0530
/ 57 / O.S.No.3331/2021
Judgment pronounced in the open Court (Vide separate Judgment) :
ORDER The suit of the plaintiff is hereby dismissed.
Under the circumstances of the case, the parties are directed to bear their own costs. Draw up decree accordingly.
(YASHAWANT R. TAWARE), 39th ACC&S Judge, Bangalore.