Bangalore District Court
Objectors: 2. Sri.Khadar Basha vs At The Time Of Filing Of Compromise ... on 26 August, 2021
IN THE COURT OF LXXIII ADDL.CITY CIVIL & SESSIONS
JUDGE, MAYOHALL UNIT, BANGALURU. (CCH.74)
PRESENT:
Sri.Yamanappa Bammanagi, B.A., LL.B., (Spl.,)
LXXIII Addl.City Civil & Sessions Judge,
Mayohall Unit, Bangaluru.
Dated this the 26th day of August, 2021.
Ex. No.25109/2013
Decree Holder: Sri.Amjad Pasha,
S/o.Late.Sri.Mohammed Ghouse,
aged about 32 yrs,
No.6/4, Davis Road,
Bharath Nagar, Bangaluru-84.
(By Sri.C.S.Prasanna Kumar -
Adv.)
V/S
Judgment Debtor: Sri.Akber Baig,
S/o.Sri.Ali Baig,
aged about 33 yrs,
No.43/2, II Main Road,
West Padrayanapura
Bangaluru-560026.
(Judgt.Debtor-Exparte)
Applicants/
Objectors: 2. Sri.Khadar Basha,
S/o.Sri.Muhidin Saab,
aged about 58 yrs,
R/at.No.1, 1st Cross,
Opp: Khaja Masjid Main Road,
2
Ex. No.25109/2013
Madina Nagar, Bommanahalli,
Bangaluru.
3. Sri.Altaf Pasha,
S/o.Sri.Abdul Ghani,
aged about 43 yrs,
R/at.No.27, 8th Cross,
Someshwarnagar,
Jayanagar, 1st Block,
Bangaluru-560011.
(By Sri.Umesh.B.N. - Adv.)
JUDGMENT
Judgment under Order 21 Rule 97 of CPC When JDr failed to perform his part of contract in terms of agreement of sale dated 30.01.2012, the DHr has filed a original suit in O.S.No.27247/2012, against the Jdr for specific performance of the agreement of sale dated:30.01.2012, for total consideration of Rs.23,04,600/- and other reliefs, in respect of schedule property, at the time of agreement of sale the Dhr has paid sum of Rs.5,00,000/- as part payment of contract, to the Jdr. The said suit was ended is compromise, by filing IA U/o 23 Rule 3 of CPC. In terms of compromise decree, the Dhr has paid balance consideration of Rs.18,04,600/-, to the 3 Ex. No.25109/2013 Defendant/Jdr, at the time of filing of compromise petition and Jdr/Defendant has handed over all documents to the Dhr, in respect of schedule property. In terms of compromise decree the Jdr/defendant has to execute registered sale deed, in favour of the plaintiff/Dhr, within 30 days from the date of compromise decree and deliver the vacant possession of the suit property.
2. When Jdr failed to execute the sale deed in favour of the Dhr within 30 days, in terms of compromise decree, the Dhr has filed this execution petition against the Jdr.
3. Thereafter, when Jdr failed to execute the sale deed in terms of compromise decree, this court has executed the registered sale deed dated:01.07.2013, in favour of Dhr, in respect of suit schedule property in terms of compromise decree and issued delivery warrant, delivered the possession of the schedule property to Dhr as per court order.
4. When Dhr has taken possession of the suit property in terms of compromise decree, as per order of the 4 Ex. No.25109/2013 court, the objector Nos.1 to 3 have filed their separate petition u/O. 21 Rule 97 of CPC. The 1 st objector is Fairoz Pasha, S/o.Mohammed Sardar, objector No.2 is Khadar Basha, S/o.Muhidin Saab and 3rd objector is Altaf Pasha, S/o.Abdul Ghani.
5. Thereafter, the objector No.1 and Dhr have filed petition u/O. 23 Rule 3 of CPC and the objector No.1 has given up his right and interest over the schedule property to Dhr and accepted same by this court.
6. The objector Nos.2 and 3 have filed their separate application u/O. 21 Rule 97 of CPC. Since objectors No.2 and 3 are claiming joint ownership and possession, hence both applications are disposed off commonly.
7. The objector No.2 has filed application u/O. 21 Rule 97 of CPC stating that he may be permitted contest the case on the strength as objector as he is the absolute owner of the suit schedule property.
8. In support of his case the objector No.2 has filed his affidavit stating that, himself and objector No.3 are the 5 Ex. No.25109/2013 absolute joint owners and in possession of the schedule property and used to pay tax, up to date and all revenue records discloses the name of the objector.
9. Further, he stated in the affidavit that since date of purchase he is in possession and enjoyment of the schedule property. Thus, the Dhr has played and fraud upon the objector by taking illegal decree and by suppressing the material facts and by misrepresenting the facts and trying to execute said decree passed in O.S. No.27247/2012, against the objectors and their family members. With this, the objector No.2 contended that to permit the objector to contest the execution proceedings.
10. The objector No.3 has filed petition u/O. 21 Rule 97 r/w Sec. 151 of CPC. In support of the petition the objector No.3 has filed his affidavit stating that, he is a purchaser of the suit schedule property and sale deed stands in his name and objector No.2 jointly and paying up to date tax and khatha stands in his name and the encumbrance certificate clearly discloses the name of the 6 Ex. No.25109/2013 objector No.2. The documents produced by the objectors clearly shows that objector No.3 is the absolute owner of schedule property bearing No.14, khatha No.43/2/229/14, since the date of purchase the objector is in possession and enjoyment of the schedule property.
11. Such being the fact, the decree holder has played fraud by taking illegal decree by suppressing and misrepresenting the facts and trying to execute the decree passed in O.S. No.27247/2012, against the objectors and their family members. Thus, the objector No.3 has contended that they have made out a prima facie case to show that they are the owners of the suit property.
12. On the other hand, the Dhr has filed objection to the petitions filed by the objector Nos.2 and 3 stating that, the objectors are strangers to the schedule property and they have no right, title and interest, in respect of suit schedule property. The Jdr was the owner and in possession of the schedule property, has executed agreement of sale dated: 30.01.2012, in favour of Dhr, in 7 Ex. No.25109/2013 respect of schedule property bearing Site No.14, BBMP formed Property Register No.650/43/2-A/14, situated at Venkoji Rao, Khane Begur Hobli, Bangaluru South Taluk, measuring East to West: 30 ft., North to South: 46 ft., consisting of 40 sq. ft. RCC roof house consisting of ground and first floor of built up area, agreeing to sell the schedule properties, in favour of Dhr for sale consideration of Rs.23,04,600/-, at the time execution of agreement of sale the Dhr has paid sale consideration of Rs.5,00,000/- to Jdr and it was agreed by both Dhr and Jdr that balance sale consideration of Rs.18,04,600/- shall be paid at the time of registration of sale deed.
13. Thereafter, the Jdr failed to perform his part of contract by receiving balance consideration in spite of several approaches of the Dhr. The Jdr was used to postpone the execution of registered sale deed, in terms of compromise decree. Thus, the Dhr constrained to file suit in O.S. No.27247/2012, against the Jdr for specific performance of contract as per agreement of sale dated: 8
Ex. No.25109/2013 30.01.2012. In pursuance of suit summons the Jdr appeared through counsel in the suit.
14. During the pendency of the suit, as per advise of well wishers of both parties, the Dhr and Jdr entered into compromise and filed petition U/o.23 Rule 3 r/w sec.151 of CPC on 04.04.2013 and the court has recorded the compromise and passed the compromise decree. As per compromise decree, the Jdr has to execute registered sale deed by receiving balance consideration within 30 days from the date of compromise decree. When Jdr was failed to execute the sale deed in terms of compromise decree, the Dhr has filed this execution petition. During the pendency of this petition, on the application made by the Dhr, this court has executed registered sale deed, in favour of Dhr and court has issued delivery warrant and as per the order of this court possession has been delivered to the Dhr. Thus, Dhr is in possession of the suit property as absolute owner in terms of court decree. 9
Ex. No.25109/2013
15. The objectors without having any right, interest, have filed these applications, which are not sustainable and are liable to be dismissed and documents produced by the objectors are concocted and created for the purpose of this case, they are not valid documents. The possession of the objectors over the property is denied as false, no fraud has been played by the Dhr, the objectors alleged falsely. The Dhr has obtained the decree from the court and court has executed registered sale deed in favour of Dhr in terms of compromise decree. Hence, the Dhr prays for dismissal of the applications.
16. In support of their case, the objector No.3 is examined as P.W.1 and got marked Ex.P.1 to P.28. P.W.1 was cross-examined by the learned counsel for the DHr and objector No.2 is examined as P.W.2, no documents have been marked, P.W.2 was cross-examined by the learned counsel for the Dhr. The Dhr is examined as D.W.1 and got marked Ex.D.1 to D.10 and D.10 (a) to (e). D.W.1 was cross-examined by the learned counsel for 10 Ex. No.25109/2013 objectors No.2 and 3. Though notice to Jdr served, but Jdr did not choose to appear and contest the matter.
17. Heard argument of the learned counsel for the objectors No.2 and 3 and counsel for Dhr. In support of his argument, the learned counsel for the Dhr relied on the decision reported in:
1. (2012) 1 SCC 656 in case of Suraj Lamp and Industries Pvt.
Ltd. v/s State of Haryana and another.
2. ILR 2012 KAR 906 in case of Channaibhairayya v/s The Commissioner, Bengaluru Development Authority and others.
3. (2017) 15 SCC 316 in case of Greater Bombay Co-operative Bank Ltd. v/s Nagaraj Ganeshmal Jain and others.
18. I have perused the contents of the petitions and oral and documentary evidence led by the objectors No.2 and 3 and Dhr and perused the material placed before the 11 Ex. No.25109/2013 court by the parties and considered the argument of the learned counsel for the parties. On perusal of the same the points that would arise for my consideration are as follows:-
1) Whether applicants/ objectors No.2 and 3 proves that they are the lawful owners of the schedule property as contended in the petition?
2) What order or decree?
19. My answer to the above points as follows:-
Point No.1: In the Negative, Point No.2: As per final order, for the following:-
REASONS
20. POINT No.1: In order to prove their case, objector Nos.3 and 2 are examined as P.W.1 and P.W.2 and got marked documents. P.W.1 is examined by filing affidavit in lieu of examination in chief reiterating the averments of the affidavit filed by him in support of his petition. P.W.1 deposed that he has purchased the 12 Ex. No.25109/2013 Western portion of site No.14, consisting of Ground and First Floor of property, Old Khatha No.43/2 of Bommanahalli CMC, New Katha No.229, Venkoji Rao Khane Village, Begur Hobli, Bangalore South Taluk, measuring East to West 15ft and North to South 46 ft., in all 690 sq ft., and each floor measures 300 sq ft., which is described as suit schedule property, produced sale deed stands in his name and objector No.2 jointly, used to pay taxes and khata stands in the name of Pw1 and objector No.2 jointly on basis of documents produced by the objectors. The objectors No.2 and 3 are absolute owners of the property shown in supra. Thus the objectors are the owners of the property and Dhr has no any manner of rights over the property.
21. Further P.W.1 deposed that himself and objector No.2 are in possession and enjoyment of the schedule property since from date of purchase. Such being the fact, the decree holder has played the fraud upon the objectors by taking illegal decree suppressing the material fact and 13 Ex. No.25109/2013 misrepresentation. Objector No.2 is examined as P.W.2 and deposed before the court supporting the evidence of P.W.1.
22. Further P.W.2 deposed that prior to purchase of suit property, PW2 and his family members were residing in the suit property as tenants. Therefore, they are in western portion of plaint schedule property, therefore as owner having purchased the same, all Revenue Records, Encumbrance Certificate, Water Connection, Electricity Connection are stands in the name of objectors. Further PW2 deposed that, neither Dhr nor Jdr have any rights and interest over the suit property and the decree passed in O.S. No.27247/2012, is not binding on the objectors, because objectors are not parties to the suit. Dhr has obtained decree by playing fraud and colluding with Jdr, suppressing and misrepresenting before the court. Thus, P.W.1 and P.W.2 deposed that they got prima facie case, the decree passed is not executable against objectors. 14
Ex. No.25109/2013
23. It is specific case of the objectors that they are the absolute owner and in possession of property shown in the objector application and they were dispossessed by the court bailiff while executing the delivery warrant passed by this court. But, objectors have not sought for possession of the property shown in the objector application and not provided description of property claimed by the objector. The application u/O XXI Rule 97 of CPC, must be in the form of plaint, but in the application no requirement of Order VI and VII of CPC complied with by the objectors.
24. In support of oral evidence the objector Nos.2 and 3 have produced Ex.P.1 to P.28. Ex.P.1 is the original absolute sale deed dated 30.4.2012 executed by Fayaz Khan in favour of Khadar Basha and Altaf Pasha, Ex.P.2 is the certified copy of Ex.P.1, Ex.P.3 is the original sale deed dated 9.5.2007 executed by Mohammed Ibrahim in favour of Fayaz Khan in respect of Western portion of site No.14, Ex.P.4 is the original absolute sale deed dated 31.12.2001 executed by Syed Khadir Ahmed in favour of Mohammed 15 Ex. No.25109/2013 Ibrahim in respect of Western portion of property bearing site No.14.
25. Ex.P.5, 5 (a), Ex.P.6, P.6 (a), Ex.P.7, P.7 (a), Ex.P.8, P.8 (a), Ex.P.9 and P.9 (a) are the declaration of self assessment of tax, Ex.P.10 is the letter issued by the CMC, Bommanahalli, Ex.P.11 to P.19 are the tax-paid receipts, Ex.P.20 is the Form-B property register stands in the name of Khader Basha and Altaf Pasha, Ex.P.21 to P.23 are the encumbrance certificates, Ex.P.24 is the receipt issued by the Bangaluru Water Supply and Sewerage Board in the name of Khader Basha, Ex.P.25 is the gas bill issued by the Hindustan Petroleum Corporation Ltd.
26. Ex.P.26 is the original registered sale deed dated 8.7.2008, executed by Sanjay Kumar, in favour of Fairoz Pasha, in respect of Eastern portion of site No.14, Old Khatha No.43/2, New Bommanahalli CMC Khatha No.996, Begur Hobli, Bangaluru South Taluk, measuring East- West: 15 feet, North-South: 46 feet.
16
Ex. No.25109/2013
27. Ex.P.27 is the registered original sale deed dated 11.03.2005, executed by Mr.Nazeer, S/o.Abdul Baseer, in favour of Sanjay Kumar, in respect of Eastern portion of vacant site No.14, Old Khatha No.43/2, New Bommanahalli, CMC Khatha No.996, Property No.43/2/14, situated at Venkoji Rao Khane, Bommanahalli, Begur Hobli, Bangaluru South Taluk, measuring East to West: 15 ft., North to South: 46 feet.
28. Ex.P.28 is the original absolute sale deed dated 31.12.2001, executed by Mr.Syed Khadir Ahmed, S/o.Syed Gouse Mohiddin, in favour of Mr.Nazeer, S/o.Abdul Basheer, in respect of Eastern portion of the property bearing site No.14, Khatha No.43/2, situated at Venkoji Rao Khane Village, Begur Hobli, Bangaluru South Taluk, measuring East-West: 15 feet, North-South: 46 feet.
29. On the other hand, the GPA holder of Dhr is examined as D.W.1. He deposed before the court that the Dhr had approached the Jdr for purchasing the suit schedule property, after negotiation, the Dhr and Jdr 17 Ex. No.25109/2013 entered into an agreement of sale on 30.1.2012 and both have fixed the sale consideration amount of Rs.23,04,600/- and Dhr has paid entire sale consideration amount to the Jdr, despite having received the entire sale consideration the Jdr failed to execute the registered sale deed in respect of suit schedule property in terms of agreement of sale dated 30.1.2012.
30. Since Jdr failed to execute the registered sale deed even after receiving entire sale consideration amount, hence the Dhr has filed suit O.S. No.27247/2012 for specific performance of contract, Jdr appeared in the said suit through counsel. The said suit was ended in compromise and Jdr agreed to execute the sale deed in terms of agreement of sale within 30 days from the date of compromise decree. Since, Jdr failed to execute the registered sale deed in terms of compromise decree within 30 days from the date of decree, hence, Dhr has filed this present execution petition for executing compromise decree, notice issued to the Jdr and Jdr appeared through 18 Ex. No.25109/2013 counsel, even in this execution petition the Jdr failed to execute the sale deed in terms of compromise decree, hence on proper application filed by the Dhr, this court has executed registered sale deed, in favour of Dhr, in respect of suit schedule property and issued delivery warrant, as per the delivery warrant, Dhr has taken possession of the suit schedule property and Dhr is in peaceful possession and enjoyment of the suit schedule property as absolute owner as per the order of the court.
31. With this, D.W.1 deposed that Dhr never played any fraud, representation in obtaining decree from this court and the Dhr has become absolute owner in possession of the suit property in accordance with law and as per the decree passed by this court and the objectors have no any right, interest over the suit schedule property, the objectors have failed to prove their rights over the suit property. With this, the Dhr prayed for rejection of objectors applications.
19
Ex. No.25109/2013
32. In support of oral evidence, the Dhr has produced as many as 10 documents, which have been marked at Ex.D.1 to D.10 and D.10 (a) to (e). Ex.D.1 is the original medical certificate to show that Dhr is not in position to prosecute this petition personally due to ill- health, hence, he executed GPA in favour of D.W.1, Ex.D.2 is the GPA executed by Dhr in favour of D.W.2, Ex.D.3 is the certified copy of sale deed dated 15.12.1987, Ex.D.4 is the certified copy of sale deed dated 6.4.1989, Ex.D.5 is the death certificate of Saida Begum, Ex.D.6 is the certified copy of gift deed dated 25.10.2006, Ex.D.7 is the certified copy of sale deed dated 1.7.2013, Ex.D.8 & D.8 (a) and (b) are the property register extract dated 23.9.2013, Ex.D.9 is the encumbrance certificate and Ex.D.10 & D.10 (a) to (e) are the tax-paid receipts.
33. I have appreciated the oral and documentary evidence led by the Dhr and objectors No.2 and 3, perused material placed before the court and considered the argument of the learned counsel for the parties. The 20 Ex. No.25109/2013 learned counsel for the objectors No.2 and 3 submitted his argument that objectors No.2 and 3 are the absolute owners and were in possession of the suit property by virtue of registered sale deeds. Thus, the compromise decree entered between the Dhr and Jdr is not binding on the objectors No.2 and 3. Further he submitted that since these objectors, though they had registered sale deeds in respect of Eastern portion of site No.14 as it could be seen from Ex.P.26 to P.28 Original Registered Sale Deeds, which are proves the flow of title over the Eastern portion of site No.14. Thus, the objectors No.2 and 3 are the absolute owners and were in possession of the property and Dhr has dispossessed the objectors No.2 and 3 from Eastern portion of site No.14 by producing delivery warrant of this court. Hence, they are the owners of the Eastern portion of suit schedule property No.14 and they are entitled for the possession.
34. On the other hand, the learned counsel for the Dhr has submitted his argument that the application filed 21 Ex. No.25109/2013 by the objectors is not sustainable under the law and facts, since, the objectors have quoted wrong provisions of law, hence the applications of objectors are liable to be dismissed. Further he argued that the alleged sale transaction as submitted by the objectors, are not valid and under the said sale transaction at Ex.P.26 to P.28 the objectors gets no legal rights over the property, because their vendors have no transferable title over the Eastern portion of site No.14 as alleged in the affidavit.
35. Further he brought the notice of the court on GPA, executed by one Mubeena Begum, in respect of property bearing site No.14-A, khatha No.43/2, measuring East-West: 15 feet, North-South: 46 feet and further the objectors contended that they have purchased Eastern portion of the property, but objectors produced no documents to show the bifurcation of site No.14 by the competent authority and fixing of boundaries after bifurcation.
22
Ex. No.25109/2013
36. Further the learned counsel for the Dhr submitted that the objectors have filed these applications for declaration declaring that they are the owners of Eastern portion of site No.14, but, GPA dated 19.6.1996, said to have been executed by one Mubeena Begum, in respect of property shown in Ex.P.26 to P.28, is not properly stamped and not registered. On account of which, this court has directed the objectors to pay deficit stamp duty on GPA, said to have been executed by Mubeena Begum, appointing his GPA holder Syed Khadir Ahmed. But, objectors have not paid deficit stamp duty on GPA. On account of which, said GPA has not been marked. Thus, court has held already that said GPA is not admissible unless and until proper stamp duty is paid. That apart, the objectors have failed to prove transferable title of their vendor. The objectors just produced GPA, which is not admissible in evidence for non-payment of deficit stamp duty, they have created Ex.P.26 to P.28, because, Ex.P.26 to P.28 are the outcome of inadmissible 23 Ex. No.25109/2013 document; i.e., GPA, the executor of GPA has no right, title and interest over the Eastern portion of site No.14. Thus, the objectors have failed to prove their title and ownership over the Eastern portion of site No.14.
37. I have carefully perused the application of objectors filed u/O XXI Rule 97 r/w Sec.151 of CPC, which reads thus:
"For the reason stated in the accompanying affidavit, that this Hon'ble Court may kindly be pleased to permit me to conduct and contest the case on strength as the objector as I am absolute and lawful owner of the schedule property in the interest of justice and equity."
38. It is well settled law that Order XXI Rule 103 of CPC provides that, any applications has been adjudicated upon under Rule 98 or 100, the order made thereon shall have the same force and be subject to same conditions as to an appeal or otherwise as if it were a decree. This 24 Ex. No.25109/2013 provision clearly shows that the application should be satisfied the requirement of plaint in original suit. But, the objectors did not provided description of the property sought in the application. Further it is specific case of the objectors that they were dispossessed by the Dhr under the delivery warrant, issued by this court. But, objectors failed to sought prayer for possession of the property and they have not paid any court fee for the reliefs sought in the applications.
39. That apart, the objectors have failed to prove their vendors transferable title over the property to transfer the Eastern portion of site No.4. No documents have been produced by the objectors to prove that Mubeena Begum, W/o.Gul Mohammed Khan & D/o.Sayeeda Begum, to execute GPA dated 19.6.1996 (which has not been marked due to non-payment of deficit stamp duty and penalty) in respect of Eastern portion of site No.14-A, Khatha No.43/2, measuring East to West: 15 ft., North to South: 46 feet, total 690 sq. ft., situated at Venkoji Rao Khane Village, 25 Ex. No.25109/2013 Begur Hobli, Bangaluru East Taluk, Bangaluru, bounded on East by: Remaining portion of the same property, West by: Site No.13, North by: Road and South by: Private Property.
40. When objectors failed to prove their vendors transferable title over the property then purchasers (objectors) gets no right and title over the property. In order to prove the ownership and title of the vendors of objectors, the objectors have produced only an inadmissible document; i.e., GPA dated 19.6.1996 said to have been executed by Mubeena Begum and appointed her GPA holder Syed Khadeer Ahmed to sell the Eastern portion of site No.14. Thus, the objectors failed to prove their flow of titles and title of their vendors over the property. Because, when Mubeena Begum herself has no title and ownership and possession over the Eastern portion of site No.14, then objectors gets no title, rights and ownership over the property claimed by them. The learned counsel for the Dhr submitted that in view of the 26 Ex. No.25109/2013 law laid down by the Hon'ble Apex Court in Suraj Lamp case the transaction by the GPA holder, which is not registered and stamped properly, the sale transaction has no evidentiary value under the law and it is not binding on any person.
41. The case of the objectors is that Mubeena Begum had executed GPA on 19.6.1996 and appointed one Syed Khadeer Ahmed as her GPA holder, said GPA holder has executed sale deed dated 31.12.2001, in favour of Mohammed Ibrahim, said Mohammed Ibrahim had executed sale deed on 9.5.2007, in favour of Fayaz Khan and said Fayaz Khan had executed sale deed on 13.4.2012, in favour of objectors No.2 and 3. When objectors failed to prove the transferable title, ownership and rights of Mubeena Begum to execute the GPA on 19.6.1996, then objectors gets no rights over the property by virtue of Ex.P.26 to P.28.
42. That apart, said GPA has not been marked due to non payment of deficit stamp duty and it is not 27 Ex. No.25109/2013 admissible in evidence. Thus, the objectors claim on inadmissible document in evidence, is not sustainable under the law and facts. Further it is clear from the contents of the affidavit filed by the objectors and material placed before the court that the objectors were dispossessed from the property claimed due to execution of delivery warrant passed by this court. But, no relief sought by the objectors for possession of the property. Under such circumstances, it can be safely held that, the objectors application is not sustainable under the law and facts.
43. It is clear from the documents produced by the Dhr that, Dhr has entered into an agreement of sale with Jdr and Jdr agreed to sell the suit property for sale consideration of Rs.23,04,600/- and received the same by the Jdr, after receiving the consideration amount the Jdr failed to execute registered sale deed in favour of Dhr in respect of suit schedule property. Hence, Dhr has filed suit O.S. No.27247/2012 against the Jdr, same was ended 28 Ex. No.25109/2013 in compromise and Jdr agreed to register the sale deed in terms of compromise decree within 30 days from the date of decree. Again Jdr failed to execute the registered sale deed within 30 days from the date of decree, hence the Dhr has filed this execution petition, when Jdr failed to execute the sale deed, the court has executed sale deed in favour of Dhr and issued delivery warrant, on execution of delivery warrant the Dhr has taken possession of the suit property. Thus, there is no material before the court to show that the Dhr has played fraud and misrepresentation as alleged by the objectors.
44. On careful perusal of the grounds stated in the affidavit, filed by the objectors, in support of their applications, it is clear that the objectors have challenged the compromise decree passed in O.S. No.27247/2012. But, this defence is not available to the objectors by virtue of the provisions of Order XXI Rule 102 of CPC.
45. Further the defence of the objectors is that the Dhr has obtained a decree in O.S. No.27247/2012 by 29 Ex. No.25109/2013 playing fraud and misrepresentation. This defence is not available to the objectors in view of the provisions of Order XXIII Rule 3 (A) of CPC, because this rule provides that no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. Thus, the application u/O XXI Rule 98 and 100 and 101 are treated to be suit and order passed on the said application is an decree, hence the application filed by the objectors are treated to be suits. Hence, the applications of the objectors are hit by Order XXIII Rule 3 (A) of CPC and Order XXI Rule 102 of CPC.
46. The only course open for the objectors is to apply for set asiding the compromise decree before the court which has passed the compromise decree under the particular provisions of law or he has to challenge the said compromise decree in the appeal.
47. I have gone through the entire oral and documentary evidence and material placed before the court, on perusal of the same, it is clear that the objectors 30 Ex. No.25109/2013 have failed to prove their rights and title over the property from any angle as discussed above. Hence, I answer this point in the Negative.
48. POINT No.2: In view of the discussion made on point No.1, I proceed to pass the following:-
ORDER The application filed by the applicants/objectors No.2 and 3 under Order XXI Rule 97 r/w Sec.151 of CPC, is hereby dismissed.
No order as to costs.
Draw decree accordingly. (Dictated to the Stenographer directly on computer system, computerized by her, after online correction by me, printout taken by her and then pronounced by me in the open court on this the 26th day of August, 2021).
(Yamanappa Bammanagi) LXXIII Addl. C C & S J, M.H. Unit, Bangaluru.31
Ex. No.25109/2013 ANNEXURES List of witnesses examined for the objectors' side:
P.W.1 - Sri.Altaf Pasha, S/o.Sri.Abdul Ghani P.W.2 - Sri.Khadar Basha, S/o.Sri.Muhidin Saab List of documents exhibited for the objectors' side:
Ex.P.1 - Original sale deed dated:13.04.2012
Ex.P.2 - Certified copy of sale deed
dated:13.04.2012
Ex.P.3&4 - Original sale deeds dated:09.05.2007 and
31.12.2001
Ex.P.5 to 9 - Declaration of self assessment of tax Ex.P.5(a) to 9(a) - Tax-paid receipts Ex.P.10 - Letter issued by the CMC, Bommanahalli.
Ex.P.11 to
19 - Tax-paid receipts
Ex.P.20 - Form-B property register
Ex.P.21 to
23 - 3 Encumbrance Certificates
Ex.P.24 - Receipt issued by BWSSB
Ex.P.25 - Gas bill issued by the Hindustan
Petroleum Corporation Ltd.
EX.P.26 - Original sale deed dated:08.07.2008
Ex.P.27 - Original sale deed dated:11.03.2005
Ex.P.28 - Original sale deed dated:31.12.2001
List of witness examined for the DHr side:
D.W.1 - Sri.Abdul Zameer List of documents exhibited for the DHr side:
Ex.D.1 - Medical certificate dated 04.11.2019 Ex.D.2 - GPA dated:15.11.2019 32 Ex. No.25109/2013 Ex.D.3 - Certified copy of sale deed dated:15.12.2987 Ex.D.4 - Certified copy of sale deed dated:06.04.1989 Ex.D.5 - Certified copy of death certificate of Saida Begum Ex.D.6 - Certified copy of gift deed dated:25.10.2006 Ex.D.7 - Certified copy of sale deed dated:01.07.2013 Ex.D.8, 8(a) & (b) - 3 Property register extracts dated:23.09.2013 Ex.D.9 - EC from 01.04.2004 to 30.09.2019 Ex.D.10, 10(a) to (e) - 6 Tax paid receipts List of witness examined for the JDr side:
-NIL-
List of document exhibited for the JDr side:
-NIL-
(Yamanappa Bammanagi) LXXIII Addl. CC & SJ, M.H. Unit, Bangaluru.(CCH-74) 33 Ex. No.25109/2013