Karnataka High Court
K V Govindaraju S/O Venkatachallaiah vs Sri Krishnamachare S/O Arachaka ... on 18 January, 2016
Author: A.V.Chandrashekara
Bench: A.V.Chandrashekara
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18th DAY OF JANUARY, 2016
BEFORE
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
R.S.A. NO.2083/2007
BETWEEN:
1. K V GOVINDARAJU
S/O VENKATACHALLAIAH
AGED ABOUT 34 YEARS
R/AT NO.304, 5TH CROSS
LAKSHMIDEVINAGAR
BANGALORE-560 096
2. KODANDARAMAIAH
S/O RAMAIAH
AGED ABOUT 40 YEARS
R/AT NO.232, 8TH MAIN
4TH CROSS, 2ND BLOCK
NANDINI LAYOUT
BANGALORE
REPRESENTED BY
GPA HOLDER SRI. K.N.JAYARAM
THE PLAINTIFF NO.1 & 2 BEFORE
THE TRIAL COURT AND APPELLANT
NO. 1 & 2 BEFORE THE LOWER
APPELLATE COURT)
... APPELLANTS
(By Sri: M. SIVAPPA, SR. ADV. FOR
SRI: M.C. HARISH KUMAR &
SRI: RAVI M.M. ADVS.)
2
AND
1. SRI KRISHNAMACHARE
S/O ARACHAKA HANUMANTHACHARI
AGED ABOUT 37 YEARS
(DELETED AS PER ORDER DATED 17.11.14)
1(a) SMT. K. MAHALAKSHMI
D/O LATE KRISHNAMACHARI
AGED ABOUT 24 YEARS
R/AT IGGALUR VILLAGE,
ATTIBELE HOBLI, ANEKAR TALUK,
BANGALORE URBAN DISTRICT.
1(b) SMT. RAMAMANI
D/O LATE KRISHNAMACHARI
AGED ABOUT 19 YEARS
R/AT IGGALUR VILLAGE,
ATTIBELE HOBLI, ANEKAR TALUK,
BANGALORE URBAN DISTRICT.
2. H RUDRAPPA
S/O SESHAPPA
AGED ABOUT 51 YEARS
R/AT SUNKADAKATTE
VISWANEEDAM POST
BANGALORE-91
... RESPONDENTS
(By Sri: PADMANABHA V. MAHALE, SR. ADV. FOR
SRI: R P SOMASHEKARAIAH, ADV FOR C/R2)
RSA FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DTD 18.6.07 PASSED IN R.A.NO
96/06 ON THE FILE OF THE DISTRICT AND SESSION
JUDGE & PRESIDING OFFR., FTC-V, BANGALORE RURAL,
DISTRICT, DISMISSING THE APPEAL FILED AGAINST THE
JUDGEMENT AND DECREE DTD 9.6.06 PASSED IN OS
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770/98 ON THE FILE OF THE II ADDL. CIVIL JUDGE,
SR.DN., BANGALORE RURAL DISTRICT, BANGALORE.
THIS APPEALHAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 6.1.2016 AND COMING ON
FOR PRONOUNCEMENT OF JUDGMENT THIS DAY,
A.V.CHANDRASHEKARA, J., DELIVERED THE
FOLLOWING:
JUDGMENT
Plaintiffs of an original suit in O.S.770/98 which was pending on the file of Senior Civil Judge, Bengaluru Rural District, are aggrieved by the concurrent findings given against them in O.S.770/98 and R.A.96/06. Hence, they have filed the present appeal under Section 100, C.P.C.
2. Respondent no.1 herein was the 1st defendant and respondent no.2 herein was the 2nd defendant in the said suit. During the pendency of the appeal, the 1st defendant died and his legal heirs are brought on record. Parties will be referred to as plaintiffs and 1st defendant and 2nd defendant as per their ranking before the trial court.
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3. The facts leading to the filing of the present appeal are as follows:
a) Land in Survey No.164 situated in Kadabagere village of Dasanapura Hobli, Bengaluru North Taluk, Bengaluru, measured in all 6.22 acres and it was the property endowed to Anjaneyaswamy Temple of Kadabagere village. One Sanjeevachar was the tenant of the said property.
b) Sanjeevachar hade made an application in respect of land in Survey No.164 along with other lands in Survey Nos.103 and 125 of Kadabagere village before the Land Tribunal, Nelamangala, seeking occupancy right in LR.INA.456/1980-81. The Tribunal, after holding due enquiry, was pleased to grant occupancy right in respect of all the three items of lands. Re-grant was made in favour of Sanjeevachar to an extent of 4.25 acres in Survey No.164 and the remaining extent of land was acquired for formation of Kadabagere Road. The 5 said Sanjeevachar chose to bequeath 4.25 acres of land in Survey No.164 and two other lands, i.e. Survey Nos.103 and 125 in favour of 1st plaintiff-
K.V.Govindaraju and 1st defendant-Krishnamachari through a registered will dated 28.1.1989. Consequent upon his death, the properties were possessed by the legatees and they became joint owners of 4.25 acres of Survey No.164 along with other two lands.
c) One person by name M.A.Srinivasaiah had made an attempt to interfere with the lands that belonging to Sanjeevachar and subsequently bequeathed to 1st plaintiff and 1st defendant. Hence the 1st plaintiff chose to file a suit for permanent injunction for himself and also on behalf of the 1st defendant in O.S.123/91 before the Munsiff Court at Nelamangala. The said suit was ultimately compromised on 4.9.1993 in terms of which an extent of 1.06 acres was earmarked in favour of Anjaneyaswamy Temple and for 6 public purposes. Therefore, the 1st plaintiff and 1st defendant became joint owners of the remaining 3.17 acres in Survey No.164.
d) Out of the extent of 3.17 acres, the 1st plaintiff and 1st defendant jointly sold half of the land, i.e. 1.28½ acres in Survey No.164 in favour of the 2nd plaintiff for valuable consideration by executing a registered sale deed dated 10.4.1996. The said land is described as 'B' schedule property in the plaint. The remaining half portion of Survey No.164, i.e. 1.28½ acres was sold in favour of H.M.Venkatappa on the same day, i.e. 10.4.1996. The said H.M.Venkatappa was the 3rd defendant in the suit. The property sold in favour of H.M.Venkatappa is described as 'C' schedule property.
e) It is averred that the lands described in 'B' and 'C' schedule were handed over to the respective purchasers, viz., 2nd plaintiff and 3rd defendant. Without the knowledge of the 1st plaintiff, 1st defendant 7 is stated to have entered into an agreement of sale with the 2nd defendant relating to 1.28 ½ acres of land though no land belonged to him absolutely. On the basis of such collusive and sham transaction, the 2nd defendant chose to file a suit in O.S.32/96 seeking specific performance of the contract based on the agreement of sale and within a week of filing of the suit, it was compromised on 11.1.1996. The decree so obtained by the 2nd defendant against the 1st defendant was a collusive one in order to defeat the legitimate right of the plaintiffs. The 1st plaintiff was not at all made a party to the said suit and he had been kept in complete darkness about the agreement as also the suit n O.S.32/96.
f) Pursuant to the collusive compromise decree obtained in O.S.32/96, the 1st defendant chose to execute a regular sale deed in favour of the 2nd deendant on 19.3.1996 in respect of 1.28 ½ acres in 8 Survey No.164, i.e. 'B' schedule property. It is alleged that the agreement of sale and the sale deed dated 19.3.1996 do not bind the plaintiffs and that the 2nd plaintiff had already become the owner of 'B' schedule property. On the basis of the collusive decree obtained by the 2nd defendant against the 1st defendant and sham sale deed, khatha was entered in favour of the 2nd defendant as against which a regular appeal was filed in R.A.97/06 before the Assistant Commissioner. The said appeal was heard and allowed by order dated 25.11.1997 and the matter was remitted to the Deputy Tahsildar for fresh disposal.
g) Since defendants 1 and 2 tried to interfere with the 2nd plaintiff's peaceful possession and enjoyment of 'B' schedule property, the plaintiffs were constrained to file a suit for the relief of declaration and permanent injunction. The relief so sought for against defendants 9 1 and 2 are found in paragraph 14 of the plaint and the same is as follows:
14. The Court fee is paid as per the valuation slip annexed to the plaint.
Wherefore, the plaintiffs respectfully pray that the Hon'ble Court be pleased to pass a judgment and decree against the defendants:
(a) Declaring that the second plaintiff is the owner of the "B" schedule property and therefore the registered sale deed dated 19.03.1996, registered as no.11692/1995-96, Book-I, in the office of the sub-registrar, Bangalore North Taluk, Bangalore, executed by the first defendant in favour of second defendant is sham and bogus and not binding on the plaintiffs as regards the schedule "B" property.
(b) Consequently, grant permanent injunction, restraining the second defendant, his agents, attorneys, henchmen, supporters, representatives, or anybody claiming through him from in any way trespassing, interfering or meddling with the schedule "B" properties.
(c) Award costs of this suit and
(d) Pass such other order of orders as deemed fit in the circumstances of the case, in the interests of justice and equity.
The 3rd defendant had been represented by an advocate and no written statement was filed. Defendants 1 and 2 were placed ex parte. The 1st plaintiff is examined as 10 PW-1 and 2nd plaintiff-Kodandaramaiah is examined asp PW-2. One Francis is examined as PW-3. Ultimately the suit came to be dismissed holding that the 1st plaintiff and 1st defendant had no land left with them to execute any sale deed in favour of the 2nd plaintiff since the 1st defendant had already executed the sale deed in favour of the 2nd defendant on the basis of decree granted by the competent court in the suit for specific performance. Such judgment and decree dated 9.6.2006 was called in question by filing an appeal under Section 96, C.P.C. before the District Judge, Bengaluru Rural, in R.A.96/06. Ultimately the appeal came to be dismissed and the judgment of the trial court is upheld. Hence the concurrent findings are called in question before this court.
4. Several grounds are urged in the appeal memo. The matter is admitted to consider the following 11 substantial question of law as found in the order sheet dated 19.9.2013:
"Sanjeevachar, testator of Will dated 28.1.1989 (Ex.P.3) having bequeathed land measuring 4 acres 25 guntas in Survey no.164 of kadabagere village, jointly in favour of the first plaintiff and the first defendant, whether the courts below were justified in recording a finding that defendant no.1 alone without the plaintiff was entitled to convey 1 acre and 28 ½ guntas of land in Survey no.164 to the second defendant by executing the sale deed dated 19.3.1996 (Ex.P.15)?
REASONS
5. Sanjeevachar was the tenant in land bearing Survey Nos.103, 125 and 164 is not in dispute. He had filed an application seeking occupancy right in respect of these lands and the Land Tribunal, Nelamangala, chose to confer occupancy right to an extent of 4.22 acres in Survey No.164 along with two other lands and this is evident from Ex.P1-certified copy of the order passed by the Tribunal on 6.2.1982. Ex.P2 is the 12 registration certificate issued under Section 55(1) of the Land Reforms Act in favour of Sanjeevachar. Ex.P3 is the certified copy of the registered will executed by Sanjeevachar, bequeathing the properties mentioned in Ex.P2 in favour of the 1st plaintiff and 1st defendant. After the death of Sanjeevachar, they had become joint owners of land measuring 4.22 acres in Survey No.164.
6. The 1st plaintiff chose to file a suit against M.A.Sreenivasaiah in O.S.123/91 before the Munsiff Court at Nelamangala for the relief of injunction in respect of o3 items inclusive of 4.22 acres in Survey No.164 of Kadabagere village. Ultimately the parties entered into a compromise and this is evident from Ex.P7, certified copy of the compromise petition signed by the parties by which 1.05 acres in Survey No.164 was reserved for the deity, Anjaneyaswamy, and 3,17 acres was the joint property of 1st plaintiff and 1st defendant.
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7. Ex.P8 is the agreement of sale executed on 22.11.1994 by the 1st plaintiff and 1st defendant in favour of Kodandaramaiah (2nd plaintiff) agreeing to sell 1.28 ½ acres in Survey No.164 for a total consideration of Rs.56,000/-. It discloses that a sum of Rs.30,000/- was received as advance by the 1st plaintiff and 1st defendant from the 2nd plaintiff and had agreed to hand over possession of the schedule property within 5 months by receiving the balance of sale consideration at the time of registration of sale deed. The schedule appended to Ex.P8 specifically discloses that the extent of 1.28 ½ acres of land in Survey No.164 was the northern half portion that was intended to be sold to the 2nd plaintiff. Ex.P8 bears the signature of 1st plaintiff and 1st defendant and there is no factual dispute about the same. The best person who could have denied the authenticity of Ex.P8 and the signatures thereon was the 1st defendant, but he did not appear before the trial 14 court at all. Therefore, Ex.P8 cannot be given a go-by or cannot be brushed aside lightly.
8. On the basis of Ex.P8, regular sale deed as per Ex.P9 was executed both by the 1st plaintiff and 1st defendant on 10.4.1996 in favour of the 2nd plaintiff and the boundaries mentioned in Ex.P9 tally with the boundaries mentioned in Ex.P8. There is a specific reference about the receipt of balance consideration of Rs.30,000/- in Ex.P9. It is mentioned in Ex.P9 that Rs.10,000/- was received by the vendors on 13.4.1995 from the purchaser and the remaining sum of Rs.16,000/- was received by the sellers on the date of executing the sale deed. Payment of Rs.16,000/- being balance consideration is found in the very sale deed since it was paid in the presence of the Sub Registrar. A specific endorsement is made by the Sub Registrar on the overleaf of the first page of Ex.P9. There is also a reference in paragraph 7 of Ex.P9 about the delivery of 15 title deeds and other revenue records in respect of the suit schedule property to the purchaser.
9. Ex.P4 is the RTC in respect of Survey No.164 measuring 4.25 acres inclusive of 3 guntas kharab land. The names of 1st plaintiff and 1st defendant had been entered as joint khatedars through MR.96/93-94 to an extent of 3.17 acres only. Ex.P4 is issued for the years 1993-94 to 1996-97. Column no.12(2) of Ex.P4 speaks about the persons in possession. The names of Govindaraju and Krishnamachar (1st plaintiff and 1st defendant respectively) and Anjaneyaswamy temple find place in column no.12(2) for the period 1994-94, 1995-
96. In the year 1995-96, the name of Govindaraju and Krishnachar are rounded off and the name of Kodandaramaiah and Rudrappa and Anjaneyaswamy temple are inserted. The said Kodandaramaiah is the 2nd defendant in whose favour the 1st defendant is stated to have sold the remaining half portion. 16
10. The trial court as well as the first appellate court have specifically held that 1st plaintiff and 1st defendant did not have any land in Survey No.164 to be sold or handed over to Kodandaramaiah and therefore, the sale deed executed by the 1st defendant in favour of the 2nd defendant pursuant to the compromise decree drawn in O.S.32/96 is valid and proper. Ex.P11 is the order sheet of the suit in O.S.32/96 which was filed before the court of Civil Judge, Bengaluru Rural. Ex.P12 is the certified copy of the plaint filed by the 2nd defendant- Rudrappa against the 1st defendant-Krishnachar seeking the relief of specific performance on the basis of the agreement of sale dated 5.6.1995 under which the 1st defendant had agreed to sell 'B' schedule property, i.e. northern half portion in favour of the 2nd defendant for a consideration of Rs.60,000/- and had received Rs.45,000/- as advance.
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11. The very agreement of sale relied on by Rudrappa in O.S.32/96 is not available. The suit for the relief of specific performance was filed and the defendant therein had filed caveat. The case had been posted to 11.1.1994 on which on which day the compromise petition was filed at 3.00 p.m. by the plaintiff and defendant therein and the suit was decree pursuant to the compromise.
12. What is argued before this court by Sri M.Shivappa, learned senior counsel for the appellants is that within 10 days of the filing of the suit, the compromise was entered into behind the back of the 1st plaintiff and therefore the said compromise obtained behind his back is nothing but a collusive decree. There appears a lot of force in this submission.
13. Learned counsel for the appellant has relied on a decision rendered by the Madras High Court in S.A.HALIMA BIVI AMMAL .v. S.A.FATIMA BIVI AND 18 OTHERS reported in AIR 1987 MADRAS 129. Section 54 of the Transfer of Property Act is dealt with at length by the Madras High Court and ultimately it is reiterated that if a person purchases a property from one of the persons who is in joint possession and ownership, it cannot be considered as a bona fide purchase if the purchaser knew that the other party had got some share in the property. In the present case, the 1st defendant, along with the 1st plaintiff, had entered into an agreement of sale in respect of 'B' schedule property in favour of the 2nd plaintiff long prior to the execution of the sale deed by the 1st defendant in favour of the 2nd defendant. Of course, possession was not handed over to the agreement holder by the 1st plaintiff and 1st defendant when the agreement of sale was executed. But there is a specific reference that possession would be handed over after the receipt of balance sale consideration from the intending purchaser. 19
14. It is also to be seen that the 1st plaintiff and 1st defendant chose to execute regular sale deed in favour of the 2nd plaintiff in respect of 'B' schedule property on 10.4.1996 and that is found in Ex.P9. This Ex.P9 is not an independent document, but a document executed in continuation of the agreement of sale dated 22.11.1994 (marked as Ex.P8). What is argued before this court by Sri Padmanabha Mahale, learned senior counsel for the 2nd defendant, is that the 1st plaintiff and 1st defendant had nothing left with them in respect of Survey No.164 as the 1st defendant had already executed the sale deed in favour of the 2nd defendant through Ex.P15 on the strength of the compromise decree drawn in O.S.32/96. The manner in which the compromise decree was entered into between the 1st plaintiff and 1st defendant will have to be looked into. Within 10 days of filing the suit, the matter was compromised. It is not as though the 1st defendant was the absolute owner of the property to execute the agreement of sale in favour of the 2nd 20 defendant and thereafter enter into a compromise with him in O.S.32/96. The 1st plaintiff as well as 1st defendant were joint owners of the property in respect of the entire extent of 3.17 acres in Survey No.164. The southern portion is sold by them jointly in favour of Venkatappa (3rd defendant in the suit) and sale deed was executed in his favour on the same day when the sale deed was executed in favour of the 2nd plaintiff by the 1st plaintiff and 1st defendant.
15. Learned counsel for the 2nd defendant, Mr.Padmanabha Mahale has relied on a decision of the Hon'ble apex court rendered in the case of KARTAR SINGH .v. HARJINDER SINGH AND OTHERS reported in [1990] 3 SCC 517. Sections 10 and 12 of the Specific Relief Act have been dealt with by the Hon'ble apex court. As per the facts of the said case, an agreement had been entered into by the joint holder both on his behalf as well as on behalf of his sister who 21 had held equal share. When the vendor-brother who had agreed to sell the whole of his share and also the undivided share of his sister, it was agreed that in case she refused to join him in executing the sale deed, he would refund the earnest money. Ultimately the sister refused to sell her share of the property and hence a decree for specific performance in respect of the share of his sister was refused. In the present case, at the best, the 1st defendant could have executed the agreement of sale to the extent of his undivided share in land No.164 and he could not have executed a regular agreement of sale with specific boundaries showing as though he was the absolute owner in possession of 'B' schedule property. In this view of the matter, the 2nd defendant cannot be considered as a bona fide purchaser for value without notice.
16. Learned senior counsel has relied on another decision of this court in the case of AZEEZULLA 22 SHERIFF & OTHERS .v. BHABHUTIMUL (AIR 1973 MYSORE 276). Sections 47 and 49(a) of the Registration Act have been dealt with. What is reiterated in the said decision is that when a compulsorily registerable document is executed at an earlier point of time, it will prevail over another sale deed registered subsequent to the execution of the earlier sale deed. There is no second opinion about the position of law relating to Sections 7 and 49(a) of the Registration Act, but the question is whether the 2nd defendant was really a bona fide purchaser in the case on hand. The 1st defendant who had already executed an agreement of sale along with the 1st plaintiff in favour of the 2nd plaintiff prior to the filing of O.S.32/96 could not have executed any agreement of sale and consequently he could not have executed a regular sale deed. The conduct of the 1st defendant and 2nd defendant assumes much importance in the present case.
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17. Learned counsel for the appellants has relied on a decision of the Hon'ble apex court rendered in PEMMADA PRABHAKAR & OTHERS .v. YOUNG MEN'S VYSYA ASSOCIATION AND OTHERS reported in [2015] 5 SCC 355. Sections 9, 17 and 13 (B) of the Specific Relief Act have been dealt with. As per the facts of the said case, an agreement of sale had been executed by one of the co-owners without the concurrence of the remaining sharers upon whom the property had devolved in equal shares by virtue of Section 8 of the Hindu Succession Act. It is held that the purchaser would not get complete title over the property in the light of the agreement having not been executed by all the co-sharers. It is reiterated that the equitable relief of specific performance cannot be sought to be enforced by the plaintiff-vendee against those persons who were not parties to the agreement of sale, though they had an equal share in the property. The said decision is aptly applicable to the facts of this case 24 since the 1st defendant did not have absolute right over the property mentioned ion the sale deed executed by him in favour of the 2nd defendant pursuant to the compromise decree.
18. Learned senior counsel for the 2nd defendant has relied on a decision of the Orissa High Court in the case of P.RAMMURTY .v. KALPO PATRA AND OTHERS (AIR 1963 ORISSA 136). Section 48 of the Transfer of Property Act has been dealt with in regard to priority between sale deeds of some immovable property. It is held that 'Where it is accepted that the parties really intended to convey certain immovable properties under a sale deed and possession of the said properties was in fact delivered to the vendee in pursuance of the said conveyance, the mere omission of the plot numbers in the sale deed is not of any consequence and a subsequent sale deed in favour of the plaintiff in respect of the very same property is of no avail.' This decision is not 25 applicable to the facts of this case because the 1st plaintiff and 1st defendant were joint owners of 3.17 acres of land in Survey No.164 and out of the same, they had executed sale deeds and handed over possession of the southern half portion to the 3rd defendant and the remaining half portion was in their joint possession as co-owners. Nothing came in the way of the parties to O.S.32/96 to have appeared before the trial court in O.S.770/08 and to produce the agreement of sale.
19. In the very agreement of sale marked as Ex.P8, there is a specific reference that possession would be handed over to the 2nd plaintiff after the receipt of balance of sale consideration. In Ex.P9 there is a specific reference about receipt of Rs.10,000/- and the remaining Rs.16,000/- when the sale deed would be executed vide Ex.P9. The said sale deed is executed jointly by the 1st plaintiff and 1st defendant in favour of 26 the 2nd plaintiff and therefore, possession was handed over to the 2nd plaintiff.
20. What is argued before this court by learned senior counsel, Mr.Padmanabha Mahale is that there was already a division between the 1st plaintiff and 1st defendant and that 'B' schedule property sold by the 1st defendant in favour of the 2nd defendant was his exclusive property and the plaintiff had already sold his share to the 3rd defendant. In this regard, he has relied on a decision of the Orissa High Court reported in AIR 2004 NOC 109 (ORISSA) between PARAMANANDA SWAIN & OTHERS .v. RABINDRANATH SWAIN & OTHERS. Section 44 of the Transfer of Property Act is dealt with in the said decision. As per the facts of the said case, the parties therein had mutually divided their properties pursuant to a decree and alienation was made by one of the co-owners after the preliminary decree came to be drawn. Therefore, it is held that 27 alienation of his share by co-owners to third party cannot be assailed by other co-owners when co-owner has not alienated the property in excess of his share. This decision is inapplicable to the facts of the present case. In the present case, if 3.17 acres had been divided equally between the 1st plaintiff and 1st defendant with specific boundaries and the 1st plaintiff had sold his share in favour of the 3rd defendant, the 1st defendant would not have joined him as co-seller while executing the sale deed in favour of the 3rd defendant. If that were the case, he would not have executed the sale deed along with the 1st plaintiff in favour of the 2nd plaintiff in the year 1994.
21. In fact, nothing is placed on record by the 2nd defendant to show that he had made bona fide enquiries before purchasing 'B' schedule property. As already discussed, Ex.P4-RTC for the years 1993-94 to 1996-97 disclose that Govindraju and Krishnamachar were the 28 joint khatedars pursuant to incorporation of their names vide mutation in MR.26/93-94 to an extent of 3.17 acres in Survey No.164. It is not as though the 2nd defendant was unaware of the fact that the entire extent was in joint ownership and possession with the 1st plaintiff and 1st defendant.
22. The 2nd defendant has relied on the sale deed executed in his favour by the 1st defendant pursuant to the agreement of sale which culminated into compromise decree in O.S.32/96. A detailed discussion is already made as to how the 1st defendant and 2nd defendant had colluded with each other in creating the agreement of sale as the basis for the suit in which the compromise was entered into within 10 days of filing the suit. Taking all these into consideration, this court is of the considered opinion that the courts below were not justified in recording that the 1st defendant alone, without the 1st plaintiff, was entitled to convey 1.28 ½ 29 acres of land in Survey No.164 of Kadabagere village to the 2nd defendant by executing the sale deed vide Ex.P15 on 19.3.1996. Accordingly the substantial question of law framed on 19.9.2013 will have to be answered in the negative. Consequently the appeal will have to be allowed in its entirety and the relief sought for by the plaintiffs will have to be granted.
23. In the result, the following order is passed:
ORDER The appeal is allowed with costs in its entirety. The judgment dated 9.6.2006 passed in O.S.770/98 and affirmed in R.A.96/06 vide judgment dated 18.6.2007 by the District and Sessions Judge and Presiding Officer-FTC-V, Bengaluru Rural District, are set aside. Consequently the suit of the plaintiff is decreed and it is held that the sale deed executed by the 1st defendant in favour of the 2nd defendant vide No.11692/1995-96 does not bind the plaintiffs. The 30 2nd plaintiff is held to be the absolute owner in possession of 'B' schedule property.
Sd/-
JUDGE vgh*