Karnataka High Court
Siddalingeshwarayya S/O Bangarayya ... vs Veeranna S/O Shiddalingappa Hatti, on 15 July, 2014
Author: A.V.Chandrashekara
Bench: A.V. Chandrashekara
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 15TH DAY OF JULY 2014
BEFORE
THE HON'BLE MR. JUSTICE A.V. CHANDRASHEKARA
RSA No.5723/2011 (DEC. & PER. INJ)
BETWEEN:
SIDDALINGESHWARAYYA S/O BANGARAYYA
SOPPINAMATH,
AGE: 32 YEARS, OCC: BUSINESS,
R/O YALAMALLI ONI, MELINPETE,
HAVERI, TQ. & DIST. HAVERI-581193.
... APPELLANT
(BY SRI. PATIL M H PATIL, ADV.)
AND
1. VEERANNA S/O SHIDDALINGAPPA HATTI,
AGE: 55 YEARS, OCC: BUSINESS,
R/O OLD AKKI PETE, OPP TO URBAN CO-OP
BANK, DIST. HAVERI - 581193.
2. CHANNABASAPPA S/O SHIDDALINGAPPA HATTI
AGE: 51 YEARS, OCC: BUSINESS,
R/O OLD AKKI PETE, OPP TO URBAN CO-OP
BANK, DIST. HAVERI - 591193.
3. SHIVAKUMAR S/O SIDDALINGAPPA HATTI
AGE: 48 YEARS, OCC: BUSINESS,
R/O OLD AKKI PETE, OPP TO URBAN CO-OP
2
BANK, DIST. HAVERI - 591193.
4. SAROJAMMA W/O SHIDDALINGAPPA HATTI
AGE: 78 YEARS, OCC: HOUSEHOLD,
R/O OLD AKKI PETE, OPP TO URBAN CO-OP
BANK, DIST. HAVERI - 591193.
... RESPONDENTS
(BY SRI.A.S. PATIL, ADV. FOR R1-R4)
THIS RSA FILED U/SEC.100 OF CPC, 1908, AGAINST
THE JUDGEMENT AND DECREE DTD: 14-06-2011, PASSED
IN R.A.NO.11/2010, ON THE FILE OF THE DISTRICT
JUDGE, (FAST TRACK COURT) HAVERI) ALLOWING THE
APPEAL FILED AGAISNT THE JUDGEMENT AND DECREE
DTD: 21-12-2009, PASSED IN O.S.NO.116/1999, ON THE
FILE OF THE PRL. SENIOR CIVIL JUDGE, HAVERI,
DECREEING THE SUIT FILED FOR DECLARATION AND
PERMANENT INJUNCTION.
THIS COMING FOR ADMISSION ON THIS DAY, COURT
DELIVERED THE FOLLOWING: -
JUDGMENT
This is an appeal filed under Section 100 CPC, by the plaintiff of an original suit bearing No.116/1999, pending on the file of the Court of Prl. Civil Judge, Haveri, The respondents herein were the defendants in the said suit. The said suit was filed for the relief of declaration and permanent 3 injunction in respect of suit schedule property bearing CTS No.1642/A/1B, which consists of a house and open space, as described in the schedule appended to the plaint. The Plaintiff is stated to be in lawful possession and enjoyment of the schedule property, on the strength of a sale deed executed in his favour by one Rajashekhar Shivappa Yalimalli on 1/7/1997 for a total consideration of Rs.1,50,000/-. The plaintiff is sated to be in lawful possession of the same ever since the sale deed executed by Rajashekhar Shivappa Yalimalli and that the defendants have no manner of right title or interest over the schedule property. Since, the defendants tried to interfere with the title and possession, he had to file declaration of title for permanent injunction.
2. The defendants contested the suit by filing a detailed return statement. They have admitted the title set up by the plaintiff on the strength of the sale deed executed by Rajashekhar Shivappa Yalimalli. According to the defendants 4 the plaintiff has agreed to sell the entire suit schedule property.
3. According the to the defendants, the plaintiff is stated to have agreed to execute a regular sale deed in respect of an open space measuring 20.53 sq.mtr. for a total consideration of Rs.50,000/- on 8/3/1999 and had received a sum of Rs.45,000/- from the first defendant and had put the first defendant in possession of the open space on 8/3/1999 itself. It is the further case of the defendants that on 18/1/1999, the plaintiff had agreed to execute a regular sale deed for a total consideration of Rs.8,00,000/- and in this regard, plaintiff is stated to have received sum of Rs.7,00,000/- as advance on 18/1/1999. The plaintiff is stated to have put the defendant in possession of the schedule house and as such the defendants are stated to be in possession of the open space as well as the house, in part performance of the contract. Hence, they had prayed for dismissal of the suit.
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4. On the basis of the above pleadings, following issues came to be framed by the Trial Court:-
i. Whether plaintiff proves that, he is the owner in possession and enjoyment of the suit schedule property?
ii. Whether the defendants prove that,
plaintiff has agreed to sell the suit
schedule property for a sum of
Rs.50,000/- and executed an
agreement of sale on 8/3/1999 by
receiving part consideration amount of Rs.45,000/- and put the 1st defendant in possession of the suit schedule property?
iii. Whether the plaintiff is entitled to the relief sought for?
iv. What order or decree?
ADDITIONAL ISSUES i. Whether the defendants prove that on 18/1/1999 the plaintiff was executed a sale agreement in favour of the 1st defendant agreeing to sell the suit 6 schedule property for a consideration of Rs.8,00,000/-?
ii. Whether the defendants prove that on 18/1/1999 the plaintiff was received Rs.7,00,000/- from the 1st defendant as advance amount?
iii. Whether the plaintiff was delivered possession and enjoyment of the suit schedule property in favour of the 1st defendant on 18/1/1999 and that the 1 defendant has been in possession and enjoyment of the suit schedule property as on the date of filing of this suit?
iv. Whether the defendants prove that the plaintiff has been interfering with the 1st defendant's peaceful possession and enjoyment of the suit schedule property?
v. Whether the defendants are entitled to the relief of perpetual injunction order as prayed against the plaintiff by way of counter claim?"
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5. The defendants choose to file a counter claim seeking the relief of permanent injunction on the basis of part performance as contemplated under Section 53 A of the Transfer of Property act. On the basis of the above pleadings, following issues came to be framed:-
i. Whether the appellants have made out grounds to produce the documents as additional evidence as prayed in IA No.II?
ii. Whether the Trial Court is justified in decreeing the suit of the plaintiff by declaring that plaintiff is the absolute owner of the suit schedule property and granting permanent injunction against the defendants in respect of the suit schedule property?
iii. Whether the defendants/appellants are entitled for permanent injunction against the plaintiff/respondent as counter claim?
iv. Whether the judgement of the Trial Court is against to the law, facts and 8 evidence on record, as such calls for interference in this appeal?
v. What order or decree?
6. The plaintiff is examined as PW-1 and one Smt.Parvatemma Soppinamath is examined as PW2. Twelve exhibits have been got marked on behalf of the plaintiff. Per contra, first defendant Mr.Veeranna @ Veerappa Shiddalingappa Hatti is examined as DW1 and Shivabasayya has been examined as DW2. Four more witnesses have examined on behalf of the defendants. 45 documents have been got marked on behalf of the defendants as Ex.D1 to D45. The Commissioner's report is marked as Exs.C1 to C2.
7. After hearing the arguments suit came to decreed and counter claim came to be dismissed vide considered judgement dated 21/12/2009. Against the said judgement and decree, appeal had been field by the defendants under Section 96 of CPC. The said appeal was withdrawn and transferred to FTC, Haveri, and was renumbered as RA 9 No.11/10. The said appeal has been allowed and the suit of the plaintiff has been dismissed and counter claim also been dismissed vide judgement dated 14/6/2011.
8. In the light of the Regular Appeal being allowed and suit bearing OS No.116/1999 being dismissed, the plaintiff is before this Court by filing an appeal under Section 100 CPC.
Following substantial questions of law is involved in the present case.:-
Whether the First Appellate Court is justified in reversing the well considered judgement passed in 116/1999 and granting the relief of perpetual injunction, on the counter claim filed in the Trial Court by ignoring material evidence placed on record and thus, the judgement of the First Appellate Court has become perverse and illegal?
9. It is to be seen that the plaintiff has relied upon the sale deed dated 1/7/1997 executed in his favour by one Rajeshekhar Shivappa Yalimalli pertaining to the schedule 10 property. This is the main document for the main relief of declaration of title. Case of the defendants is that the plaintiff has executed an agreement of sale, on 18/3/1999 agreeing to sell the same for a sum of Rs.50,000/-. A Sum of Rs.45,000/- is stated to have been received by the plaintiff from the first defendant and the first defendant is stated to have been put into possession of the same by the plaintiff.
Further case of the defendant is that the plaintiff has executed an agreement of sale 18/1/1999 in respect of the house property agreeing to sell the same for a consideration of Rs.8,00,000/- and has received a sum of Rs.7,00,000/- as advance. The plaintiff is stated to have put defendants in possession of the schedule house on the same day. Hence, the defendants are stated to be in lawful possession of schedule property on the strength of two agreements of sale. Of course the said defence is the basis for the counter claim filed by the defendants for the relief of permanent injunction. Suit came to be allowed and counter claim came to be dismissed by the Trial Court, as against which, the Regular 11 appeal came to be filed by the plaintiff under Section 96 of CPC and no appeal was filed by the defendants against the rejection of the relief of permanent injunction sought in the counter claim.
10. The defendants have opposed the case of the plaintiff on the ground that the plaintiff has executed two separate agreements of sale and has put them in possession of the same. After the amendment to Karnataka Stamp Act in the year 1995, whoever contends to be in possession of immovable property on the strength of agreement of sale should necessarily pay a stamp duty as if it is a deed of conveyance. The counter claim is also in the nature of a suit filed for all practical purpose and the counter claim filed by the defendants is in the nature of a suit filed for the relief of permanent injunction. The entire case of the defendants as projected in the Trial Court by means of counter claim is based on the two agreements of sale under which possession is stated to have been handed over by the plaintiff to them. Under such circumstances, the Trial Court should have 12 looked into mandatory provisions of Sections 33 and 34 of the Karnataka Stamp Act 1957.
11. Agreements of sale have been marked as Exs.D1 and D5 respectively. The Trial Court has specifically held that the agreement of sale cannot be looked into as they are insufficiently stamped. In the decision reported in 2000(4) KAR.L.J. 55 between K.Amarnath Vs. Smt.Puttamma, this Court has elaborately dealt with the admissibility of insufficiently stamped documents and the applicability of provisions of Sections 33 and 34 of Karnataka Stamp Act 1957. The Trial Court has specifically held that the stamp duty has to be recovered from the defendants. In spite of giving sufficient opportunities, the defendants have failed to pay the said stamp duty. In the light of non payment of stamp duty, the Trial Court should have calculated the stamp duty and should impose 10 times penalty and one time duty. Even after assessing the exact deficit stamp duty and the penalty, if the party does not pay the deficit stamp, the course left open is to send the impounded document to the 13 concerned authorities for recovering the stamp duty as arrears of land revenue and then only to proceed in accordance with law.
12. The First Appellate Court has come to the conclusion that even if those agreement of sale are ignored, injunction will have to be granted in favour of the defendants on the basis of other evidence available on record. This approach of the first Appellate Court is quite erroneous and not in accordance with law. The star documents on which the defendants have placed reliance are in sufficiently marked and hence other parole evidence placed on record will have to be ignored. In stead of ignoring other parole evidence the First Appellate Court has attached much importance on the attending circumstances, though the claim for permanent injunction is based on two insufficiently stamped agreements of sale. The approach adopted by the first Appellate Court is quite contrary to the mandatory provisions of law i.e. Sections 33 and 34 of Karnataka Stamp Act and this can be set right under Section 58 of Karnataka Stamp Act 1957, by this 14 Appellate Court. The Lower Appellate Court has committed serious illegality and hence, the appeal will have to be set aside by answering the substantial question of law in the affirmative.
13. Hence, the appeal will have to be allowed and the mater will have to be remitted to the Trial Court to impound the documents as per Sections 33 and 34 and to take steps in accordance with law for recovering the deficit stamp duty and thereafter, to decide the matter afresh. If stamp duty is not paid on the counter claim, it shall also be paid by the defendants in the Trial Court.
ORDER Appeal filed under Section 100 of CPC is allowed. Judgments of the trial Court as well as the First Appellate Court are set aside.
Matter is remitted to the Trial Court to deal with in accordance with law, keeping in mind the 15 provisions of Sections 33 and 34 of the Karnataka Stamp Act 1957 and the principles enunciated by this Court in K.Amarnath Vs. Smt.Puttamma case and dispose of the matter at the earliest.
Parties shall appear before the Trial Court on 3/9/2014 without fail. Till the disposal of the suit and counter claim, both the parties shall maintain the same state of things as they exist today without giving any opportunity for further dispute.
In view of the appeal being allowed by remanding the matter, entire Court fee in order to be refunded to the appellant.
SD/-
JUDGE Vmb