Karnataka High Court
Smt. Uma Devi vs Sri V Sreeramulu on 29 March, 2022
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR.JUSTICE R.NATARAJ
REGULAR SECOND APPEAL NO.116 OF 2020
BETWEEN:
SMT. UMA DEVI
W/O. K. ANJANEYA REDDY,
AGED ABOUT 46 YEARS,
R/O YERAGANAHALLI VILLAGE,
ROBERTSON PET HOBLI,
K.G.F. TALUK,
KOLAR DISTRICT-563 137.
...APPELLANT
(BY SRI. VEERANNA G. TIGADI, ADVOCATE)
AND:
1. SRI. V. SREERAMULU
S/O VENKATAPPA,
AGED ABOUT 55 YEARS,
R/O YERAGANAHALLI VILLAGE,
ROBERTSON PET HOBLI,
KGF TALUK-563 137.
2. SRI. G. ASHOK
S/O GANGAPPA,
AGED ABOUT 54 YEARS,
3. SRI. PRASANNA KUMAR
S/O GANGAPPA,
AGED ABOUT 52 YEARS,
4. SMT. GIRIJAMMA
W/O LATE JAI KRISHNA REDDY,
2
AGED ABOUT 52 YEARS,
5. SHRI JANARDHANA REDDY
S/O LATE JAI KRISHNA REDDY,
AGED ABOUT 34 YEARS
6. SMT. JANAKI
D/O LATE JAI KRISHNA REDDY,
AGED ABOUT 32 YEARS
7. SMT. JANANI @ NIDHA
D/O LATE JAI KRISHNA REDDY,
AGED ABOUT 30 YEARS
ALL ARE RESIDING AT
YERAGANAHALLI VILLAGE,
ROBERTSON PET HOBLI,
KGF TALUK-563 137.
...RESPONDENTS
(BY SRI. UMESHA M., ADVOCATE FOR CAVEATOR/RESPONDENT
NO.1)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 CPC AGAINST THE JUDGMENT AND DECREE
DATED 17.08.2019 PASSED IN RA NO.114/2019 ON THE FILE
OF THE III ADDL. DISTRICT JUDGE KOLAR (SITTING AT KGF)
DISMISSING THE APPEAL AND CONFIRMING THE ORDER DATED
05.01.2019 PASSED ON IA NO.V IN EX.NO.34/2007 ON THE
FILE OF THE ADDL. SENIOR CIVIL JUDGE AND JMFC., KGF
REJECTING THE IA NO.V FILED UNDER ORDER XXI RULE 97
AND 100 R/W.SEC.151 OF CPC.,
THIS APPEAL IS COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
This appeal is filed by the obstructor / applicant in Execution Case No.34/2007 challenging the finding of fact recorded by the Addl. Senior Civil Judge and JMFC, KGF (henceforth referred to as 'Executing Court') dated 05.01.2019 which was confirmed in appeal by the III Addl. District Judge, Kolar (sitting at KGF) (henceforth referred to as 'First Appellate Court') in R.A. No.114/2019. Both the Courts held that the obstructor is not entitled for a declaration of her title to the suit property and thus, rejected the application.
2. The respondent No.1 herein had filed a suit for specific performance in O.S.No.50/2001 to enforce an agreement of sale dated 13.09.2000 executed by respondents No.2 and 3 in respect of the suit schedule property. The said suit was decreed ex parte on 26.07.2006 and he initiated steps for executing the decree in Execution Case No.34/2007. The appellant/obstructor filed an application under Order XXI Rule 97 and 100 read 4 with Section 151 of CPC and sought adjudication of her claim and declare her title in respect of the suit schedule property and to dismiss the execution petition. She contended that respondents No.2 and 3 sold the land bearing Sy.No.24/2 measuring 37 guntas situate at Ernakanahalli, Robertsonpet Hobli to her vendor in terms of a sale deed dated 08.11.2001. Later, she purchased the property from her vendor in terms of a sale deed dated 15.02.2010. She claimed that she was in possession of the property from the date of its purchase and had got the khata transferred to her name. She alleged that the respondent No.1 herein objected to the transfer of khata and the Tahsildar after conducting an enquiry over ruled the objection raised by the respondent No.1 herein and ordered the change of khata of the property to the name of the appellant/obstructor. She alleged that the respondent No.1 herein attempted to take forcible possession of the property on the basis of the decree obtained in respect of land bearing Sy.No.24/4. She therefore, contended that the respondent No.1 herein had 5 no claim over the property bearing Sy.No.24/2. She further contended that the respondent Nos.2 and 3 herein, claimed that they had not executed any agreement in respect of Sy.No.24/4 as they were not the owners of the said land. Therefore, she contended that the respondent No.1 herein ought to have verified whether the land bearing Sy.No.24/4 existed or not. She alleged that decree obtained by the respondent No.1 herein was in collusion with the respondent Nos.2 and 3 herein as they had not contested the suit in O.S.No.50/2001.
3. The respondent No.1 herein contested this application and claimed that he had sought for specific enforcement of an agreement of sale dated 13.09.2000 executed by the respondent Nos.2 and 3 herein by filing the suit in O.S.No.50/2001. The said suit was decreed on 26.07.2006. He alleged that after the suit was filed the respondent Nos.2 and 3 herein hurriedly created a sale deed dated 08.11.2001 in favour of Jai Krishna Reddy. Hence, Jai Krishna Reddy was impleaded as a defendant in 6 O.S.No.50/2001. Despite the above, Jai Krishna Reddy conveyed the property in favour of the appellant/obstructor herein on 15.02.2010. Therefore, he contended that the sale deed executed by respondent Nos.2 and 3 in favour of Jai Krishna Reddy on 08.11.2001 and the sale deed dated 15.02.2010 executed by Jai Krishna Reddy in favour of the appellant/obstructor were hit by the principle of lis pendens. He contended that Jai Krishna Reddy had filed Misc. No.28/2006 for setting aside the decree in O.S.No.50/2001. The said Misc. No.28/2006 was dismissed for non prosecution on 15.07.2009. He, thereafter, filed Misc.No.17/2009 for restoration of Misc.No.28/2006 which too was dismissed on 11.06.2010. He claimed that the appellant/osbtructer had no locus standi to file the application, as she was claiming right under the defendants and was not putting forth any independent claim and as she was pendente lite purchaser she was not entitled to seek adjudication of her obstruction. He also claimed that the boundaries of the suit property, as well as the boundaries mentioned in the sale 7 deed of the vendor of the appellant/obstructor (Jai Krishna Reddy) were one and the same. He further alleged that if the property purchased by the appellant/obstructor was different than the suit property, then the obstructor had no right to obstruct the execution of the decree.
4. Based on these contentions, the Executing Court set down the case for enquiry. The appellant/obstructor was examined as PW.1 and she marked documents as Exs.P1 to P35. On the other hand, the respondent No.1 / Decree Holder was examined as RW1. After hearing the parties, the Executing Court framed the following point for consideration:
"Point: Whether the applicant/objector has made out the sufficient and satisfactory grounds to allow I.A.No.V filed under Order XXI Rule 97 and 100 r/w Section 151 of CPC?"
5. The Executing Court held that the boundaries of the property mentioned in the sale deed dated 14.03.2010 executed in favour of the Appellant/obstructor as well as the boundaries mentioned in the agreement of 8 sale dated 13.09.2000 were one and the same. This was admitted by the appellant/obstructor in her cross- examination. Therefore, it held that the property claimed by the appellant/obstructor and respondent No.1/ decree holder were one and the same, though the survey number was mentioned as Sy.No.24/2 in the sale deed dated 14.03.2010 and Sy.No.24/4 in the sale agreement dated 13.09.2000.
6. It relied upon the Judgment of the Apex court in the case of Prathiba Singh and Another v. Shanthi Devi Prasad and Another [2003(2) SCC 330] and held that the respondent No.1/decree holder cannot be deprived the fruits of the decree merely because the appellant/obstructor had wrongly mentioned the survey number as Sy.No.24/2 instead of Sy.No.24/4. It therefore, held that the appellant/obstructor has no manner of right, title or interest over the property claimed by the respondent No.1/decree holder. It also held that the obstruction application was hit by Order XXI Rule 102 of 9 CPC as she was a pendente lite purchaser and therefore, the application was not maintainable and thus, rejected the application.
7. Feeling aggrieved by the aforesaid adjudication, which resulted in a decree, the appellant/obstructor filed R.A. No.114/2019. The First Appellate Court secured the records, heard the counsel for the parties and framed the following points for consideration:
"1. Whether the Applicant/Obstructor has proved that she has any independent right in the Execution of schedule property?
2. Whether the impugned Order/decree calls for any interference by this Court in exercise of appellate jurisdiction?
3. What Order?"
8. It held that the respondent Nos.2 and 3 herein had executed a sale deed in favour of the appellant/obstructor on 14.03.2010 during the pendency of O.S.No.50/2001 by mentioning the survey number of the 10 property as Sy.No.24/2. Therefore, the sale deed was always subject to final result in O.S.No.50/2001. It held that since the property was purchased during the pendency of O.S.No.50/2001, the applicant was not entitled to obstruct the execution of the decree in view of Order XXI Rule 102 of CPC. It held that the property claimed by the appellant/obstructor in Sy.No.24/2 and the respondent No.1/decree holder were one and the same and therefore, the appellant being a pendente lite purchaser had no independent right but was claiming under Judgment debtors and therefore, not entitled to obstruct the execution and hence, it dismissed the appeal.
9. Being aggrieved by the aforesaid, the present Regular Second Appeal is filed.
10. The learned counsel for appellant/obstructor submitted that the property conveyed in favour of the appellant/obstructor was Sy.No.24/2 and not Sy.No.24/4 and therefore, the two properties were different and the 11 appellant/obstructor was entitled to obstruct the execution of the decree.
11. The learned counsel for the caveator/respondent No.1, on the other hand, submitted that the boundaries mentioned in the sale agreement in favour of the respondent No.1/decree holder which was the basis of O.S.No.50/2001 as well the boundaries mentioned in the sale deed of the vendor of the appellant/obstructor were the same. Therefore, what was evident was that the appellant/obstructor and the respondent No.1/decree holder were claiming the same property. Since the appellant/obstructor had purchased the property during the pendency of the proceedings in O.S.No.50/2001, the obstruction was not maintainable.
12. Heard the learned counsel for the parties and perused the Judgment and Decree of both the Courts as well the grounds urged in the appeal memorandum. 12
13. The respondent Nos.2 and 3 had executed an agreement of sale dated 23.08.2001 in favour of the respondent No.1/decree holder, who filed O.S.No.50/2001 on 23.08.2001 for specific performance of the said agreement. It is only thereafter that the respondent Nos.2 and 3 executed a sale deed in favour of Jai Krishna Reddy on 08.11.2001. The said Jai Krishna Reddy was impleaded as a defendant in O.S.NO.50/2001, and thereafter, the suit was decreed ex parte. The respondent No.1/decree holder filed Execution Petition No. 34/2007 for executing the decree of specific performance. In the meanwhile, Jai Krishna Reddy attempted to set aside the ex parte decree in O.S. No.50/2001 by filing Misc. No.28/2006 which however, was dismissed for non-prosecution and thereafter Misc. No.17/2009 filed to restore Misc. No.28/2006 was dismissed on 11.06.2010. Notwithstanding the decree of specific performance and in violation thereof, Jai Krishna Reddy executed a sale deed in favour of the appellant/obstructor on 15.02.2010 during the pendency of proceedings in Execution Case 13 No.34/2007. It is therefore, clear that appellant/obstructor and the respondent No.1/decree holder were litigating over the same property. The boundaries on the property which was the subject matter of the suit in O.S. No.50/2001 and the sale deed dated 15.02.2010 executed in favour of the appellant/obstructor were the same. Therefore, it is clear that the wrong mentioning of Sy.No.24/2 was a clear attempt to circumvent the decree of specific performance granted in respect of Sy.No.24/4. The applicant / obstructor who had purchased the property during the pendency of the proceedings in Ex.P. No.34/2007 was debarred from obstructing the execution of the decree in view of Order XXI Rule 102 of CPC. Both the Courts have rightly considered the facts, evidence on record and have rightly held that the obstruction caused by the appellant was mischievous and therefore were right in rejecting the application filed by the appellant /obstructor under Order XXI Rule 97 of CPC.
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There is no error in the appreciation of evidence and the application of law by both the Courts. Hence, no substantial question of law arises for consideration in this appeal, and therefore, the appeal is dismissed.
Sd/-
JUDGE hnm