Bangalore District Court
Smt. B. Parimalamma vs Doddappa Gowda on 1 February, 2016
C.R.P.67 Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgments in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE VIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE (CCH-15) AT BENGALURU
Dated this the 1st day of February, 2016.
PRESENT:
Sri PATIL NAGALINGANAGOUDA, B.A.,LL.B.(Spl.),
VIII Additional City Civil and Sessions Judge (CCH-15),
Bengaluru.
ORIGINAL SUIT No.2984/2011
PLAINTIFFS : Smt. B. Parimalamma,
D/o.B.S. Baligir Ranga Rao,
Aged about 67 years,
Residing at No.1, 15th
Cross, Swimming Pool
Extension, Malleshwaram,
Bengaluru - 560 003.
(By Sri T. Krishna, Advocate)
-VERSUS-
DEFENDANTS : 1. Doddappa Gowda,
S/o. Ninge Gowda,
Aged about 64 years,
Residing at D.K. Koppal,
Siddapur Post,
K.R. Nagar taluk.
2. The Secretary,
Kendra Upadhyayara Sangha
(Registered),Bengaluru South
Taluk, having its registered
Office at No.24, Subbarama
Shetty Road, Basavanagudi,
Bengaluru - 560 004.
(Defendant No.1 : placed ex-parte)
(Defendant No.2 by Sri K.P.B., Advocate)
Cont'd..
-2- O.S. No.2984/2011
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Date of Institution of the Suit : 18-01-2011
Nature of the Suit (Suit on : Declaration and injunction.
pronote, Suit for declaration
and possession, Suit for injun-
ction etc,)
Date of the commencement : 28-01-2014
of recording of the evidence
Date on which the Judgment : 01-02-2016
was pronounced
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Year/s Month/s Day/s
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Total duration : 4 years, 9 months, 13 days
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JUDGMENT
This is a suit filed by the plaintiff against defendants for the decree to declare that the judgment and decree dated 16-08-2008 in O.S. No.25866/2007 regarding the compromise as not binding on the plaintiff and to grant permanent injunction restraining the defendant No.1 from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property.
2. The brief facts of the plaint are as under:-
Plaintiff has contended that she is absolute owner in possession of Site No.509 carved out of Survey Nos.45 and 47, Jakkasandra village, Begur hobli, Bengaluru South taluk. It is submitted that the said site was allotted to the plaintiff by defendant No.2 Sangha under registered lease -cum- sale agreement Cont'd..
-3- O.S. No.2984/2011 dated 03-09-1987 and the plaintiff has paid the entire sale consideration to the Sangha and the plaintiff was put in possession of the said site under Possession Certificate dated 17-08-1988 and Khata of the said site standing in the name of the plaintiff and the plaintiff has been paying tax regularly. It is submitted that the defendant No.2 Sangha was granted 34 acres 03 guntas in Survey Nos.45 and 47 of Jakkasandra by the Government of Karnataka and the said lands were converted into non-agricultural residential purpose and after obtaining the said permission from the B.D.A., the Sangha obtained an approved lay-out plan and formed a lay-out comprising 571 sites and allotted sites to its various members including the plaintiff.
It is submitted that there was certain disputes between the original Inamdars of the land in Survey Nos.45 and 47 of Jakkasandra and it was a long-drawn litigation which started in 1979 and concluded only on 08-02-2010 by the final order of the Hon'ble Supreme Court of India. The said judgment is reported in AIR 2010 SCW 1519. It is submitted that there was an order of injunction and status quo through out in various proceedings before various forums including this Court initiated by the original Inamdars and the plaintiff could not improve the site and could not put up any construction. It is submitted that during the month of June, 2010, the plaintiff was informed by the other site owners that some fictitious purported to be representing the Society, in collusion with others, created agreements Cont'd..
-4- O.S. No.2984/2011 and filed suits and in the suits, fictitious persons have compromised and compromise decree has been passed with the knowledge of either Society or site owners as site owners were not arrayed as parties in the said suit. It is submitted that the plaintiff immediately met her Advocate and got certified copy of the records pertaining to proceedings of O.S. No.25866/2007 and it discloses that defendant No.1 as a plaintiff has filed a suit contending that the defendant No.2 Sangha has executed agreement of sale on 25-06-1989 in his favour agreeing to convey Site No.509 for valuable consideration of Rs.1,00,000-00 and the Sangha did not execute sale deed and the suit is filed for specific performance of the agreement. It is submitted that further the plaintiff came to know that some fictitious persons claiming to have been representing defendant No.2 Sangha as its Secretary appears and filed Vakalath and also enters into compromise with the plaintiff agreeing to execute the sale deed and compromise petition is filed on 16-08-2008 and the suit is decreed in terms of the compromise by judgment and decree dated 16-08-2008. It is submitted that the judgment and decree dated 16-08-2008 is collusive decree obtained by playing fraud and therefore, it does not bind the plaintiff. It is submitted that since the plaintiff is not a party in the aforesaid proceedings, she filed an application seeking permission of the Hon'ble High Court to file Regular First Appeal challenging the judgment and decree in O.S. No.25866/2007 and the plaintiff has also filed an application for injunction Cont'd..
-5- O.S. No.2984/2011 against the defendant No.1 in the said appeal. It is
submitted that the said appeal was disposed by the Hon'ble High Court by order dated 18-03-2011 directing the plaintiff to file separate suit challenging the compromise judgment and decree obtained by defendant No.1 and further, the Hon'ble High Court has permitted the plaintiff to make necessary Interlocutory Applications in the said suit and hence, the plaintiff is constrained to file this suit. With this submission, the plaintiff prayed to decree the suit.
3. On the other hand, in spite of service of summons, defendant No.1 has not appeared before the Court and hence, defendant No.1 is placed ex-parte.
4. In pursuance of summons, defendant No.2 Sangha appeared through its Counsel and filed written statement. The brief facts of the written statement of the defendant No.2 are as follows:-
Defendant No.2 has admitted the averments in the plaint in Para Nos.3 to 9. Defendant No.2 has admitted that the plaintiff is in possession and enjoyment of the suit schedule property. Defendant No.2 has contended that defendant No.1 is stranger to the Society and is not a member of the defendant Society and it has not received any notice from the Court in O.S. No.25866/2007. It is submitted that the alleged compromise obtained by the first defendant is behind the back of the second defendant and therefore, it is null and void and not binding on the plaintiff. Lastly, Cont'd..
-6- O.S. No.2984/2011 defendant No.2 Sangha has contended that it has no objection to decree the suit as prayed by the plaintiff.
5. On the basis of the above said pleadings, this Court has famed the following -
ISSUES
1) Whether the plaintiff proves
that she is absolute owner of
suit schedule property as
alleged?
2) Whether the plaintiff proves
that the Judgment and Decree
dated 16-08-2008 in OS
No.25866/2007 recording the
compromise as not binding on
the plaintiff and it is a
collusive decree obtained by
playing fraud as alleged?
3) Whether the plaintiff is
entitled for a permanent
Injunction restraining
defendant No.1 from
interfering with the plaintiff
peaceful possession and
enjoyment of the suit schedule
property?
4) What Order or Decree?
Cont'd..
-7- O.S. No.2984/2011
6. In order to substantiate the plaint averments, plaintiff herself is examined as P.W.1 and got marked documents as per Exs.P.1 to P.8 and closed her side.
7. I have heard the arguments on behalf of the plaintiff. Advocate for the plaintiff has also filed notes of arguments.
8. My findings on the above Issues are as follows:-
ISSUE No.1 - Affirmative;
ISSUE No.2 - Affirmative;
ISSUE No.3 - Affirmative;
ISSUE No.4 - As per final order, for the following -
REASONS
9. ISSUES 1 TO 3 : It is the specific case of the plaintiff that she is the absolute owner in possession and enjoyment of the suit schedule property having purchased the same under the registered lease -cum- sale agreement dated 03-09-1997 by paying entire sale consideration of Rs.10,381-00 to the defendant No.2 Sangha. It is also the case of the plaintiff that defendant No.2 Sangha after executing the sale deed put the plaintiff in possession of the said site under Possession Certificate dated 17-08-1988 and Khata of the said site stands in the name of the plaintiff. It is Cont'd..
-8- O.S. No.2984/2011 also the case of the plaintiff that Government of Karnataka acquired 34 acres 03 guntas of land in Survey Nos.45 and 47 of Jakkasandra village and the said land was converted into non-agricultural purpose after obtaining necessary permission from the B.D.A. and the defendant No.2 Sangha obtained approved lay- out plan and allotted sites to its members including the plaintiff. It is the case of the plaintiff that she came to know that some fictitious person alleging to be representing the society, in collusion with others, have created agreements and have filed suits and in the suits, the fictitious person has compromised the matter and a compromise decree has been passed without her knowledge and accordingly, she came to know that the defendant No.1 as plaintiff had filed a suit in O.S. No.25866/2007 contending that the defendant No.2 Sangha had executed an agreement of sale on 25-06- 1989 for valuable consideration of Rs.1,00,000-00 in respect of the suit schedule property and the suit is filed for specific performance of the agreement. It is the case of the plaintiff that some fictitious person claiming himself to have been representing defendant No.2 Sangha filed Vakalath, entered into compromise and accordingly, compromise decree has been passed in the said suit without the knowledge of the defendant No.2 Sangha. Last version of the plaintiff is that she being not a party to the said proceeding, filed an application seeking permission of the Hon'ble High Court to file Regular First Appeal against the above said judgment, but the said permission was rejected by the Hon'ble Cont'd..
-9- O.S. No.2984/2011 High Court directing the plaintiff to file separate suit challenging compromise judgment and decree obtained by defendant No.1. With this submission, plaintiff prayed to decree the suit.
10. Admittedly, defendant No.1, who is the kingpin of the entire episode, has not appeared before the Court in spite of service of summons. Defendant No.2 Sangha appeared through its Counsel and filed written statement - wherein, the Sangha has submitted no objection to decree the suit as prayed by the plaintiff.
11. In order to prove Issue Nos.1 to 3, plaintiff has produced original lease -cum- sale agreement which is marked as per Ex.P.1. It discloses that plaintiff has purchased the suit schedule property for valuable consideration and the defendant No.2 Sangha has executed Ex.P.1 in favour of the plaintiff. Ex.P.2 is the possession certificate dated 17-03-1988. On perusal of the above said document, it is evidence that the plaintiff is put in possession of the suit schedule property from the date of lease -cum- sale agreement. Ex.P.3 is the certificate issued by the Bengaluru Mahanagara Palike with regard to suit schedule property and it discloses that the suit schedule property is standing in the name of the present plaintiff. Ex.P.4 is encumbrance certificate. It discloses the name of the plaintiff as owner of the suit schedule property. Contents of the above said documents are quite corroborating with the evidence of P.W.1 and with the contents of the written Cont'd..
- 10 - O.S. No.2984/2011 statement submitted by defendant No.2 Sangha.
Defendant No.1 being statutory body in the written statement has specifically stated that the contents of Paras 3 to 9 of the plaint are true and correct. Further, it has stated that the plaintiff is absolute owner and she has enrolled in the society on 03-09-1997 and the schedule property has been allotted to the plaintiff by the second defendant. In the written statement, defendant No.2 Sangha has specifically stated that after verifying the records, the second defendant has allotted the schedule property in favour of the plaintiff and the plaintiff has paid entire sale consideration and accordingly, the defendant Sangha had executed lease - cum- sale deed in favour of the plaintiff and it has given possession certificate and delivered possession of the schedule property to the plaintiff. Contents of the written statement of defendant No.2 are helpful to the case of the plaintiff to prove her lawful possession over the suit schedule property.
12. The plaintiff has also proved that O.S. No.25866/2007 is not binding on her and it is a collusive decreed obtained by defendant No.1 by playing fraud as alleged. In the pleadings as well as in the oral evidence, P.W.1 has specifically deposed that defendant No.1 as plaintiff had filed a suit in O.S. No.25866/2007 contending that the defendant No.2 Sangha has executed agreement of sale and the defendant No.1 has filed a suit for specific performance of the contract. P.W.1 further deposed that one fictitious person Cont'd..
- 11 - O.S. No.2984/2011 claiming himself to have been represented defendant No.2 enters appearance and they entered into compromise agreeing to execute the sale deed and accordingly, compromise decree has been passed on 16- 08-2008. In support of the above said contention, plaintiff has produced order sheet of O.S. No.25866/2007. In support of the above said contention and the decree passed in the said suit - which are marked as per Exs.P.5 and P.7 respectively. P.W.1 has also produced copy of the compromise filed in the above said suit which is marked as per Ex.P.6. In view of the pleadings as well as documentary evidence relied on by the plaintiff and defendant No.2, this Court is of the opinion that the plaintiff has proved that the judgment and decree dated 16-08-2008 passed in O.S. No.25866/2007 is a collusive decree and it is not binding on the plaintiff. On the contrary, defendant No.1 has not appeared before the Court to resist the claim of the plaintiff. When the evidence of P.W.1 and the contents of Exs.P.1 to P.6 remained unchallenged, I am of the opinion that the plaintiff has proved Issue No.2.
13. On perusal of the oral as well as documentary evidence, plaintiff has established that she is in lawful possession over the suit schedule property as on the date of the suit. The plaintiff has also established that the defendant No.1 is trying to interfere in the suit schedule property on the basis of the collusive decree obtained by playing fraud in O.S. No.25866/2007. The Cont'd..
- 12 - O.S. No.2984/2011 decree obtained by defendant No.1 in the above said suit itself amounts to interference of defendant No.1 with the plaintiff's peaceful possession and enjoyment over the suit schedule property. At the cost of repetition, I would like to say that the evidence of P.W.1 and the contents of the above said documents are not being denied by the defendant. As I have discussed above, defendant No.2 Sangha has filed written statement and submitted no objection to decree the suit. Hence, my answers to Issues 1 to 3 are in the 'affirmative'.
14. ISSUE No.4 : For the above said reasons and discussion on Issues 1 to 3, I proceed to pass the following -
ORDER Suit filed by the plaintiff against the defendants, is hereby decreed with cost.
Defendant No.1 is hereby restrained from interfering with the plaintiff's peaceful possession and enjoyment over the suit schedule property in any manner by way of permanent injunction.
Draw decree accordingly.
(Dictated to Judgment Writer, transcribed by him, revised by me and after corrections, pronounced in open Court on this the 1st day of February, 2016.) (PATIL NAGALINGANAGOUDA) VIII Additional City Civil and Sessions Judge, An&/- Bengaluru.
Cont'd..
- 13 - O.S. No.2984/2011
ANNEXURE
1. WITNESS EXAMINED FOR THE PLAINTIFF:
Examined on:
P.W.1 : B. Parimalamma 28-01-2014
2. DOCUMENTS MARKED ON BEHALF OF PLAINTIFF:
Ex.P.1 : Lease cum sale agreement dated 03.09.1987.
Ex.P.2 : Possession certificate dated 07.03.1988. Ex.P.3 : Khatha certificate dated 25.04.2003. Ex.P.4 : Encumbrance Certificate.
Ex.P.5 : Certified copy of order sheet in O.S. No.25866/2007.
Ex.P.6 : Certified copy of compromise petition dated 16.08.2008.
Ex.P.7 : Certified copy of the compromise decree. Ex.P.8 : Certified copy of judgment in R.F.A. No.933/2010.
3. WITNESSES EXAMINED FOR THE DEFENDANTS:
Nil
4.DOCUMENTS MARKED ON BEHALF OF DEFENDANTS:
Nil (PATIL NAGALINGANAGOUDA) VIII Additional City Civil and Sessions Judge, An&/- Bengaluru.
Cont'd..