Karnataka High Court
Smt. C Nagaveni vs Late Babu Reddy Dead By Lrs on 14 July, 2022
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO.13212 OF 2022 (GM-CPC)
BETWEEN:
SMT. C NAGAVENI
W/O MUNIREDDY,
AGED ABOUT 47 YEARS,
R/AT PARAPPANAAGRAHARA,
HONGASANDRA GRAMA PANCHAYATH
BEGUR HOBLI, BENGALURU SOUTH TALUK-560068
REP BY SPA HOLDER
P MUNIREDDY
S/O LATE PAPA REDDY
AGED ABOUT 67 YEARS,
NO.88, 4TH CROSS, DOLLAR SCHEME COLONY,
BTM 1ST STAGE, BENGALURU-560068
...PETITIONER
(BY SRI.H.N.SHASHIDHAR, SR.COUNSEL FOR
SRI.SOMASHEKAR NAIDU B, ADVOCATE)
AND:
LATE BABU REDDY DEAD BY LRS
(ORIGINAL DECREE HOLDER)
RESPONDENTS 1 TO 4
1. SMT. RAMADEVI B.M.
W/O LATE S.A BABU REDDY,
AGED ABOUT 56 YEARS
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2. MS. MAMATHA
D/O LATE A BABU REDDY,
AGED ABOUT 36 YEARS
3. MS. DIVYA B.S
D/O LATE S.A BABU REDDY,
AGED ABOUT 31 YEARS
4. SRI. SATHISH KUMAR B
S/O LATE S.A BABU REDDY,
AGED ABOUT 42 YEARS
RESPONDENTS NO.1 TO 4 ARE
R/AT NO. 7, 7TH CROSS, 35TH MAIN,
BEHIND CENTRAL SILK BOARD,
2ND STAGE, BTM LAYOUT,
BENGALURU-560 068
MUNI REDDY
S/O LATE ADDAIAH REDDY
AGED ABOUT 70 YEARS
DEAD HIS LRS ALREADY IN RECORD
(JDR NO.2 TO 6) RESPONDENT NO.5 TO 9
5. SMT. RUKMANI
W/O LATE BABU REDDY
AGED ABOUT 43 YEARS
6. SRI. RAJAPPA
S/O MUNI REDDY
AGED ABOUT 43 YEARS
7. SRI. SATHISH
S/O MUNI REDDY
AGED ABOUT 33 YEARS
8. SRI. SRINIVAS REDDY
S/O MUNI REDDY
AGED ABOUT 33 YEARS
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9. SRI. MANJU
S/O LATE MUNI REDDY
AGED ABOUT 35 YEARS
SMT. PAPAMMA
W/O LATE NARAYANA REDDY
AGED ABOUT 80 YEARS
DEAD HER LRS ALREADY ON RECORD
(JDR NO.8 AND 9) RESPONDENT NO.10
10. SMT. GULLAMMA
W/O LATE GOVINDA REDDY
AGED ABOUT 51 YEARS
SRI. ANANDA REDDY
S/O LATE NARAYANA REDDY
AGED ABOUT 53 YEARS
DEAD HIS LRS ALREADY ON RECORD
(JDR NO.9(a) TO 9(d) RESPONDENT NO.11 TO 14.
11. SMT. ANUSUYA
W/O LATE ANANDA REDDY
AGED ABOUT 53 YEARS
12. SMT. MANJULA
D/O LATE ANANDA REDDY
AGED ABOUT 35 YEARS
13. SRI. KIRAN
S/O LATE ANANDA REDDY
AGED ABOUT 28 YEARS
14. SRI. NAGENDRA
S/O LATE ANANDA REDDY
AGED ABOUT 28 YEARS
RESPONDENTS NO.11 TO 14 ARE
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R/AT KUDLU VILLAGE,
SARJAPURA HOBLI,
ANEKAL TALUK-562 125
15. SRI. RAMASWAMY REDDY
S/O BHADRA REDDY
AGED ABOUT 61 YEARS,
R/AT NARAYANAGHATTA VILLAGE,
SARJAPURA HOBLI,
BENGALURU DISTRICT-562 125
...RESPONDENTS
(BY SRI.JAYAKUMAR.S.PATIL, SR.COUNSEL FOR SRI.AKASH.V.T,
ADVOCATE FOR C/R4)
THIS PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED
BY XI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE CCH 8
BANGALORE CITY DTD. 21.06.2022 IN EX. 2903/2011 ACCEPTING
COMMISSIONER REPORT AND REJECTING OBJECTIONS FILED BY
THE PETITIONER VIDE ANNX-M IN SO FAR AS REJECTION IS
CONCERNED AND CONSEQUENTLY PERMIT THE PETITIONER TO
CHALLENGE THE COMMISSIONER REPORT VIDE ANNX-K(A) TO
K(e).
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 05.07.2022, COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER
The captioned writ petition is filed by the judgment debtor No.10 questioning the order of the Executing Court passed in Ex.No.2903/2011 accepting the Commissioner report.
2. The facts leading to the case are as under:
The father of respondent Nos.1 to 4/decree holders namely Babu Reddy entered into an agreement to sell in respect of land bearing Sy.No.15 as well as the present suit schedule property bearing Sy.No.68/1 measuring 34 guntas.
The father of respondent Nos.1 to 4 was compelled to institute a suit for specific performance in O.S.No.1748/2004 seeking relief of specific performance against the respondent Nos.5 to
14. The present petitioner and respondent No.15 entered into a compromise with Babu Reddy, the original decree holder in respect of site Nos.5, 18, 6 and 17 respectively. In terms of compromise petition, a decree was drawn in O.S.No.1748/2004. In the said compromise, the original 6 decree holder and the owners of the land in question admitted the sale deeds in favour of the present petitioner/judgment debtor No.10 as well as judgment debtor No.11. In terms of compromise decree, the father of respondent Nos.1 to 3 filed execution proceedings in Ex.No.2903/2011 and sought for execution of sale deed in terms of the agreement to sell dated 05.12.1993.
3. The present petitioner filed an application in I.A.No.24 under Order 26 Rule 9 of CPC seeking appointment of Court Commissioner. The respondent Nos.1 to 4 filed statement of objections to I.A.No.24. The Trial Court having examined the rival contentions allowed the application filed in I.A.No.24 and in terms of memo of instructions, the Court Commissioner submitted a report to the Court along with the sketch. The petitioner, however, disputed the Commissioner report and filed objections. The Executing Court has rejected the objections tendered by the present petitioner herein and consequently Commissioner report is accepted. The Executing 7 Court accordingly directed the decree holder to submit a draft sale deed. It is this order which is under challenge.
4. Shri H.N.Shashidhar, learned Senior Counsel appearing for the petitioner reiterating the grounds urged in the writ petition would straight away take to the schedule reflected in the decree. Referring to the decree and also the schedule annexed to the sale deed, the petitioner would contend that the respondent Nos.1 to 4 cannot dispute the existence of road on the Northern side of the petitioner's property. He would vehemently argue and contend that since the commissioner report was strongly objected by the petitioner herein, the Executing Court erred in denying an opportunity to the petitioner to summon the commissioner and cross-examine and therefore, he would contend that denial of an opportunity to cross-examine the Court Commissioner has resulted in miscarriage of justice.
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5. Learned Senior Counsel would contend that in the sale deeds of the present petitioner and judgment debtor No.11, the original owner has clearly reflected in regard to existence of road on the Northern side and since the original decree holder has admitted the sale deeds in favour of the petitioner and judgment debtor No.11 in the compromise petition, the Court Commissioner was bound to mark the road portion while preparing the sketch as per the description of the boundaries to the sale deeds. Therefore, he would contend that omission to mark Northern side road to the sites owned by the present petitioner and judgment debtor No.11 in the sketch is contrary to the terms of the compromise decree and therefore, it was very much essential to permit the petitioner to cross-examine the Court Commissioner in that regard.
6. To buttress his arguments, learned Senior Counsel has placed reliance on the judgment rendered by the Coordinate Bench of this Court in the case of Smt. Sharada 9 Shedthi vs. Susheela Shedthi and Others1. By referring to para 7 and 8 of the said judgment, he would contend that the when a Commissioner submits a report, any aggrieved party disputing the commissioner report has every right to cross- examine the commissioner questioning the manner in which the local inspection is carried out. He has also placed reliance on the judgment rendered by the Division Bench of this Court in the case of Smt. Lakshmamma and Others vs. Sri T.H.Ramegowda and Others2. Placing reliance on the said judgment, he would contend that if respondents/decree holders are aggrieved by the terms and conditions of the compromise, then only recourse available to the aggrieved persons is to approach the same Court which has passed the compromise and therefore, he would contend that respondent Nos.1 to 4 cannot be permitted to take a contrary stand to what was resolved in terms of compromise decree passed in O.S.No.1748/2004.
1 2014 (1) KCCR 486 2 ILR 2015 Kar 4024 10
7. Learned Senior Counsel has also placed reliance on the injunction granted in favour of adjoining owner in O.S.No.1748/2004. Placing reliance on this order, he would contend that the said order would indicate that there is a road on the Northern side of the property of the adjoining owner also. He has also taken this Court through the provisions of Section 51 of CPC and has further contended that Executing Court is vested with power to examine the manner in which decree has to be executed.
8. Shri Jayakumar S.Patil, learned Senior Counsel appearing for the respondents, however, repelling the contentions canvassed by the learned Senior Counsel appearing for the petitioner would vehemently argue and contend that that the order under challenge is in accordance with law and would not warrant any interference at the hands of this Court. Learned Senior Counsel would straight away take this Court to para 17 of the impugned order. Referring to para 17, he would contend that the present petitioner has 11 given up his claim in the earlier proceeding in W.P.No.10265/2021. Taking this Court through the order dated 12.08.2021 in the above said writ petition, he would point out that the counsel appearing for the petitioner on instructions has given up his claim over the alleged Northern side road.
9. Learned Senior Counsel would heavily bank on the commissioner report. Referring to the commissioner report, he would point out that the present execution petition is filed by the respondent Nos.1 to 4/decree holders to secure sale deed in terms of the decree passed in O.S.No.1748/2004. In terms of the compromise decree, excluding property owned by the present petitioner herein and judgment debtor No.11, the respondent Nos.1 to 4 are entitled to secure sale deed in respect of remaining portion. He would further contend that at the instance of the present petitioner, Commissioner was appointed and on local inspection, the Commissioner has clearly noted that there is no road in existence on the 12 Northern side of petitioner's property. In the report, the Commissioner has clearly stated that the property owned by the present petitioner is completely fenced by a compound and petitioner has access through Southern road. He would also refer to the observations made by the Court Commissioner indicating that none of the parties have placed any documents from the competent authority indicating existence of road on the Northern side of the petitioner's property. The Commissioner has also noted that there is 30 feet road on the southern side of petitioner's property.
10. Heard Shri H.N.Shashidhar, learned Senior Counsel appearing for the petitioner and Shri Jayakumar S.Patil, learned Senior Counsel appearing for the respondents. Perused the order under challenge. I have also meticulously examined the records produced by the respective parties.
11. The respondents/decree holders entered into compromise with the present petitioner and judgment debtor 13 No.11. In terms of compromise decree, the respondent Nos.1 to 4 and the present petitioner and other respondents have entered into compromise and the decree holders have admitted the title of the present petitioner herein. At clauses (1) and (2), the decree holders have admitted in unequivocal terms admitting the title in respect of properties covered under the sale deeds. At clause (3), the present petitioner has also admitted that excluding his property and judgment debtor No.11 property, the petitioner will not assert any right in the remaining property. In terms of the compromise petition, the suit filed by the original decree holder was decreed in part against the present petitioner and other contesting defendants. The operative portion of the judgment passed in O.S.No.1748/2004 reads as under:
"The suit of the plaintiff is decreed in part with costs against defendants No.1 to 9.
The defendants No.1 to 9 are directed to execute the registered sale deed conveying the suit schedule property excluding the sites sold in favour of defendant No.10 and 11 under the sale deeds dated 14 7.9.1992 within one month from the date of this order.
In the event of failure on the part of the defendants No.1 to 9 to comply with the above direction, the plaintiff is at liberty to get the registered sale deed executed through the process of Court.
Draw decree accordingly."
12. Based on the decree passed in the above said suit, the original decree holder i.e., father of the respondent Nos.1 to 4 filed execution petition seeking direction against the vendors to execute registered sale deed and thereby convey the suit schedule property excluding the sites sold in favour of the present petitioner and judgment debtor No.11. At the instance of the present petitioner, Court Commissioner was appointed. The Court Commissioner having verified the title documents and on spot inspection has prepared sketch and sketch is furnished along with Commissioner report. I have also given my anxious consideration to the sketch which is produced at page 144 to the writ petition. The property purchased by the petitioner and judgment debtor No.11 is 15 clearly demarcated in the sketch. Excluding the properties owned by the present petitioner and judgment debtor No.11, the Court having accepted the commissioner report has called upon the decree holders to furnish a draft sale deed.
13. On perusal of the sketch, this Court would find that the Commissioner on spot inspection found that there is no road on the Northern side of petitioner's property as alleged. In fact, he has specifically observed in the sketch that except the Southern side road abutting to petitioner's property, no such road exists on the Northern side of petitioner's property. He has also observed that none of the parties have placed on record any authentic document or an approved layout by competent authority. There is no dispute that petitioner's property is bounded by a road on the Southern side. The petitioner's claim is that on Northern side there is a road and therefore, Court Commissioner ought to have carved out the road portion while preparing the sketch. The petitioner is 16 placing heavy reliance on the sale deed dated 07.09.1992. The schedule of the petitioner's sale deed reads as under:
"SCHEDULE All that piece and parcel of the property bearing House List Khatha No.18, situated at Parappana Agrahara, Hongasandra Group Panchayathi, Begur Hobli, Bengaluru South Taluk in the measurement of East to West 30 feet and North to South 90 feet, bounded on East by : Site No.6 and 17 West by : Site No.4 and 19 North by : Road and South by : Private Property in between these boundaries and measurements house constructed in the measurement of 10x10 feet with ACC Sheet roof not having water and electricity connections."
14. On perusal of the schedule, this Court would find that the road is abutting only on the Northern side, while to the Southern side of the petitioner's property, it is shown as bounded by private property and not road. The present execution petition is filed seeking direction against the vendors to execute registered sale deed in favour of respondent Nos.1 17 to 4/decree holders excluding properties of petitioner and judgment debtor No.11. Therefore, the execution is confined only to secure sale deed from the original owners excluding the petitioner's property. It is in this background, this Court would find that question of providing an opportunity to the petitioner to cross-examine the Commissioner in the present set of facts is found to be unwarranted.
15. The petitioner is asserting right over the Northern side road and if such a road emanates from the covenants in the sale deed dated 07.09.1992, then the petitioner has to seek redressal of his right in an independent suit. The nature of right has to be also determined and petitioner has to seek relief of declaration in that regard. The present execution petition is filed for limited purpose wherein a direction is sought against the decree holders' vendor to come forward and execute sale deed excluding the petitioner's property. On spot inspection, commissioner has stated that there is factually no road in existence. In such a situation, the 18 petitioner cannot expand the scope of enquiry in the present execution proceedings and seek adjudication of his right over the Northern side road. The boundaries shown in the sale deed do not tally with the commissioner report. Therefore, these disputed questions of facts cannot be adjudicated in the present execution petition. In terms of the compromise petition, the property owned by the petitioner is carved out and by excluding the petitioner's property, the decree holders are called upon to submit a draft sale deed. In the process, the Executing Court has accepted the commissioner report. The question of cross-examining the Commissioner in the present set of facts is a futile exercise and even if permitted, will not assist the petitioner in any manner having regard to the scope of the execution petition.
16. This Court has to also take judicial note of the statement made by the learned counsel appearing for the petitioner in the connected writ petition. Learned Senior Counsel has placed reliance on the said statement made by 19 the learned counsel for the petitioner in earlier round of litigation in W.P.No.10265/2021. The order sheet dated 12.08.2021 reads as under:
"Both the learned counsels, Sri. Srinivasa Murthy S.R. and Sri. Venkatesh S.Arabatti place on record copies of the sketches that they would like to rely upon to submit that there could be common ground between the contesting parties for completion of the sale deed in favour of the petitioner in W.P.No.7639/2021 in terms of the decree for specific performance. The only difference between these two sketches is that in the sketch filed by Sri. Srinivasa Murthy S.R., a road to the north of the properties of the petitioners in W.P.No.12793/2021 is indicated, but when queried Sri. Srinivasa Murthy S.R. accepts that this may not be a road but used as such and his clients would not insist on such access. With these submissions, the learned counsel Sri. Venkatesh S.Arabatti is permitted to place a draft of the sale deed and the sketch which he proposes to place before the Executing Court for completion of the sale deed and closure of the proceedings. These documents may be placed on record on 13.08.2021, and the office is directed to list these petitions on
13.08.2021."
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17. If all these significant details are taken into consideration, then I am of the view that the grounds urged in the present writ petition cannot be entertained. If such recourse is adopted, it would virtually expand the scope of enquiry in pending execution proceedings which is impermissible. The existence of road and petitioner's right over the Northern road on the basis of registered sale deed are all disputed questions of facts which cannot be decided in the present execution proceedings.
18. Though learned Senior Counsel for petitioner has placed reliance on Section 51 of CPC, the same has no application to the present case. This Section defines the jurisdiction and power of the Executing Court, the manner in which decree has to be executed. Section enumerates in general terms the various mode in which the Executing Court may order the execution of decree. It is for the decree holder to decide in which of the several modes mentioned in the 21 Section, he will execute his decree. The judgment debtor cannot invoke Section 51 of CPC.
19. For the reasons stated supra, I pass the following:
ORDER The writ petition is dismissed.
Sd/-
JUDGE CA