Karnataka High Court
Doddaiah S/O Chikkaiah vs Doddappa S/O Late Basappa on 27 September, 2010
Author: S.N.Satyanarayana
Bench: S.N.Satyanarayana
I
IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 27'1"" DAY OF SEPTEMBER 2() 10
BEFORE
THE HON'BLE zvm. JUSTICE S.N. I.
R.F.A. No. 1004/2001 (IN-I~}--» . ff}. "
BETWEEN :
1.
DODDAIAH,
S/O CHI ,
AGED MAJOR.
KRISHNA,
s/0 PUTTAIAH ._ .
AGED MAJOR, _ '
"
I
'
A11"ARE.,REs1D.1NG"_.'AT,
_-- ,SANTEBB£E1VEAROOR'IVILLAGE,
. D'ODDAMA(_3;GE HOBLI.
' APKALGUD TALUK,
DISTRICT. . . APPELLANTS
»[BYI0sR1;'5:.._I s}f'1éAV1 AND
sR1§;3V..*v£:ERAPPA, ADVS FOR A~3}
A N
. DODDAPPA.
S/O LATE BASAPPA,
AGED MAJOR.
R/O SANTHEIVIAROOR VILLAGE,
MAGGIE) HOBLI, ARKALGUD TALUK.
HASSAN DISTRICT.
'W
2
SINCE DECEASED BY LRS
R.1 (a) NINGAJAMMF? MOTHER
R.1 [b) ERAPPA, BROTHER
R.1 [C] SANNAPPA, BROTHER
R.1 (O1) BASAPPA, BROTHER
R.1 (e) NINGAPPA, BROTHER
[CAUSE TITLE AMENDED AS..P_ER r "
COURT ORDER DATED 22,"7.2(_)02v)'..)'L .
R1 (3.) NINGAJAMMA, _
SINCE DECEASED BYLRS.
R.1 (3.) [b] ERAPPA, SON. .
R.1 (a) [(2) SANNAPPA,
R} (a) (e) NINGAPPA', EON. " A
(CAUSE TITLE AMENDED :AS.PERV
COURT ORDERDATED'2\2.,6.2010)f '
,R.--1.[fi{)~~)BAS2{\?PA'. BROT1-_IER
:._SINCED.E_CEASED_BY LRS.
1' D (1) ,Rۤjj$IiMA';
R. 1' D12) [)._FIARMA_.;) SON.
.,R.1 D13) BASAPPA, SON.
. R1]. D (4) JRATHNAMMA, DAUGHTER.
é ' R1 D[5) DAUGHTER.
= 1. .R.-1 R5) GOWRAMMA, DAUGHTER.
* VV{'CAL¥,.SE"'i;ITLE AMENDED AS PER
COURT ORDER DATED 27.9.2010)
" SARALAMMANNI,
W/O LATE CHALUVARIE URS.
AGED MAJOR.
M .C. SARVAMANGAL
D/O LATE CHALUV " E URS
AGED MAJOR.
4. M. C. SOMARAJE URS,
S/O LATE CHALUVARAJE URS
AGED IVIAJOR.
5. M. C. NAGARAJE URS,
S/O LATE CHALUVARAJE URS,
AGED MAJOR.
6. M. c. MURALIDHARAN,
S/O LATE CHALUVARAJE URS.
AGED MAJOR.
RESPONDENTS NO. 2 TO 6'1;ARE _ ~ _
RESIDING AT SANTHvEMAROOR'VILLAGE.V'
DODDAMAGGE I-IOBLI,_VV.._ T- V V.
ARKALGUD TALUK, . A é
HASSAN DISTRICT. .';~..RESPONDENTS
[BY SR1 G. .A.sRIKANTE FOR R-2 TO
R-6; M /s. Acc ASSOCA1ATEVS,v ADVOCATES, FOR R. 1
(B,C,E); R.1 (DIIIV) TOR. 1 ' (D) [6.._SERVi?.D;
R.1 (A) -- IS 1" [B_,°CV,E}'AF{E TREATED AS
LR'S OI§*"DECiEA$'I::D R;'I.'_'(A)]
THIs-- RFA I5'EV'£}FI1;};DV UNDER SECTEON 96 OF CPC
AOAINsT'V....'I"'r1E .JUDG_1VIENT AND DECREE DATED
02/.11,/2001 PASSED IN Os NO22/1995 ON THE FILE
OR3--:"I'HI':: CIVIL"-JUDGE (SR.DN.) 3: ADDITIONAL CJM.,
' V' HO--LENARA.sIPURA."'PARTLY DECREEINO THE SUIT FOR
» PERJNIA§\'ENT'V1NJUNCTION.
V. T§§i1s__ R...F':A.COMING ON FOR HEARING THIS DAY,
THE cOI.I_RfrDELwERED THE FOLLOWING:~
JUDGMENT
V. DefeI1darIts--6 to 8 in O.S. No.22/1995 on the file the Civil Judge (Sr.Dn.] and Additional CJM, Holenarasipura, have c0me--up in appeal challenging the "WI judgment and decree passed in the said suit. The 15' - respondent herein is the plaintiff in the Court below. Respondents -- 2 to 6 were Defendants «- 1 to 5. Effort the sake of convenience, in this appeal, the parties tiara, referred to by their ranking in the Court bE1§V!?: V
2) Defendants~1 to 5 were "the abso1u"te_owrier's of the suit scheduie propertyd'i__.e;:,_zagriciiiturai bearing Survey Nos. 19, 4.1/1: in alibi measuring 8 acres'~~.__ and...' fibottpnded common boundaries.
:3') r the plaintiff is that on 22.11.1994'; into an agreement with De*fe.:ndan,ts-- 1.» A' for purchase of suit schedule ' property'ifor:"a.._vaiuab1e consideration of Rs.1,20,000/-. Orithey agreement. he paid Rs.40,000/-- towards adva1a_ce;_ and out of balance Rs.80,000/~, a sum of A Rsf."60,000/-- was required to be paid by the plaintiff towards the loan due to State Bank of Mysore by Defendants-1 to 5 and the balance of Rs.20,000/-- was required to be paid by him Defendants~1 to 5 at the '"""\ time of execution of Registration of Deed of Conveyance of suit schedule property in his favour. He further 'contends at the time of entering into agreement, h'e.pwas put in possession and enjoyment of the property. which according to him, cultivation and enjoyment.
29.03.1995 alleging that, Vunderlthe"'AgreeinVent: oft'; dated 22.1 1.1994, he is in possession' anldcultivation of the suit schedule' subsistence of agreement Defendan.ts:f to " sold the suit schedule €fayo__urfp-,loi"l:lDefendants--6 to 8 [Appelilants C h
4) _tii'e_ the plaintiff sought for a direictioii to .d_efei1dants totexecute and register the i oi"ConV*eyance of the suit schedule property in his 'nai':le, in-l5thei1=a1ternative for a direction to appoint Court Commissioner to execute the sale deed of suit property A register the sale deed in his name pursuant to decree to be passed by the Court below. He also sought for an order of permanent injunction restraining the Defendants} to 8 from interfering with his peaceful possession and enjoyment of suit schedule property.
5) In the said proceedings, on service of summons, Defendants--1 to 8 entered their In the written statement filed by Defenda1_1tp:s=--:.l they took up a specific contention that into any agreement of sales' with lthe'"p1aintiffs,l:andT; denied execution of agreernent dated"--2_2.'ll.l§994 and also delivery of posses_sion5_l:of;;_s.uit_'sAc'hedu1e property to the plaintiffs 11nderp'.Vth:efiaforegsaild lplalgreernent. They howet,}lerllladnri»i_t ofllslale deed of suit schedule property in favour'of'~I§efehdants~6 to 8 and delivering possession schedule property to Defendants--6 to 8 " 8 p1i.rsEu'an't~.to salemdeed.
as Defendants-6 to 8 are concerned, they filedyérritten statement denying agreement of sale of suit between plaintiff and Defendants -- 1 to 5 and 8' 'plaintiff being in possession of suit schedule property. ~'l"hey denied plaint averments that a sum of Rs.4~0,000/-- was paid by the plaintiff to Defendants-- 1 to 5, he """\ agreeing to pay loan to State Bank of Mysore and to pay the balance of Rs.20,000/- at the time of registration of the suit schedule property to defendants-l also denied having any knowledge of between the plaintiff and the }_7)'eter1daJi*ts--~:1 further contended that out of suit..sehedule."_1 to each of Defendants--6, 7 have"~ac'quireld specific extent and survey saie deeds executed in fayour of each of them have of the extent and in their favour.
Considering 't1*:iesel.ueontenti'ons, the court below has framed the lfo,llolWing 'iss.ues:
V. i) Whether « plaintiff proves that _V to 3 have executed an of sale dated 22. l l. 1994 agreeing suit properties to him for a price ~ §f;Rs.1.2o,ooo/-- :2 Whether he proves lawful possession of the suit properties under the said agreement of sale as on the date of suit '2
iii) VVhether defendants 6 to 9 prove that they are the bonafide purchasers of the suit properties from Defendants--1 to 5 without notice of an earlier agreement in favour, the plaintiff '2 f
iv) Whether the plaintiff is entitled to if specific performance of coritraet«tl1e"*~V«' sale agreement '9 f i T if if if V) Is he entitled to gfjvpjlrelief 'Pei'zna:fien't Injunction ? if "f V
7) After isst,tes_e_" the plaintiff in support of his case, he exarnin'ed anotlE1er":'i::::im'tt1esses as PWs.2 to 6 and got marked inaualllvlOedoci1nients--Exs.P1 to P10. PWs. 2, 3 to the agreement--Ex.P1 dated ii.:Lfe94f-et1éw.5 is the scribe of E:-c.P1. PW.6 is the uncle ,__-of plaintiff, who claims to have financed the it transaction in question to PW.1
8) On behaif of the defendants, 5&1 defendant
-mefixamined himself as DW.1 and adduced evidence on behalf of Defendants--1 to 5. On behalf of Defendants-6 """'\ to 8, 81?' defendant was examined as DW.2, 71?' defendant was examined as DW.3 and one independent witness by name Sri. Gangaiah was examincd"%oyeg:the defendants in Support of their case and also documents Exs.D1 to D 13.
9) The court below pleadings and oral and docuiriiebntary__evi_denc'e:Havaiiable"
on record, answered. Issue -A i.e.' "execution of agreement of sale by Defendants {I---t_o. 5* in favour of the plaintiff, in anVd"tv1I's~su_'e regarding the lawful over suit schedule property in dispute, in the negative. The 'Courtuals-o 'Answered Issue No.3, which was regardingwluhonafide purchase of suit schedule .t}V3e'fendants--6 to 8 from Defendants -- 1 to 5, in'~..the__" negative and the 49'! issue regarding right of i.p}.a1'ntiff to get suit schedule property registered by way specific performance of contract under Ex.P1 was i it "held in affirmative and accordingly allowed plaintiffs suit as per Issue No.5. Defendantsw 6 to 8 being *~"'\ 10 aggrieved by the finding regarding Issue Nos.1, 3 & 4, have come up in this appeal.
10] On perusal of the grounds _ appeal and also the impugned judgmen--t;---»v-'the: V. points arise for consideration in=..thisAAappeal.-.. V
i) Whether the Court belowllwasti .
in holding that thehlplaintiff 'entitled to get the suit' " schedule property registered in his' 'Defendants
vii)" * rlWpl1at*fe;9'rderp " for appellants and Respondents." '~.7Peri1sed the oral and documentary eyidlenoe and alsomlthe pleadings available on record. I of the same, this Court answered the point t_h'at«--larose for consideration in this appeal, in the .negative, for the following reason:»
12) The fact that Defendants» 1 to 5 were pvabsolute owners of suit schedule property as on the date of conveying the same in favour of Defendants--6 to 'M ll 8, is not in dispute. The point that arose for consideration before the Court below was, whether the plaintiff entered into an agreement on EXP] for purchase of suit schedule Defendants ---- 1 to 5. Readingfof' E:~:t.D'.}, eaeeceiiaegS:eiaa: i there was an agreement Defendants-- 1 to 5 and W'he'r*ein "ll to 5th agreed to sell suit'E~:che_dule favour of plaintiff for valuable efe1r;ei'c11e;¥at.aiai1fAiliefhas.1,2o,ooo/~. Out of that;_"an;o-unt;:._ paid as on the date of jj:'ai%;§ipanea;h'er Rs.60,000/~ was required to to State Bank of Mysore towards V"eolearan_ce_of.':_l.oan of Defendants 1 to 5 and of i{s-;2Q_,_Q0O/- to be paid at the time of ' eXc£:uttion.:'of sale deed. The agreement also discloses thatthe 'piaiiitiff was put in possession of suit schedule property pursuant to the agreement dated 22.1 1.1994. A "ii infs:_.1pport of this, the plaintiff has adduced evidence of himself and another 5 witnesses.
'""'\ 12
13) The evidence of PW. Mplaintifi) is nothing but reiteration of the pleadings made by him in the plaint. In his evidence he has not established beycr_rd"'-all reasonable doubt that he is in possession,'cultivation and enjoyment of suit schedule' 'is be nothing on record either by wayrevenue records paid receipts or any other documents. to, the' plaintiff is in possession of scheed'ul'ev4property pursuant to Ex.Pl and of his right of possession ;over:yI"the:__ same, "«h:el'-i_ha_sTfbeen carrying on agricultural ..schedt1le property and also paying tax toeelthejeGovernrrient in that behalf and also got necessary entries' irfthe revenue records, ie, in the cultivators' column_,of RTC records to show that he is in ' .posse'ssi'o_r'i-, :cultivation and enjoyment of the property. coming to the evidence of PWs.2, 3 & 4, it 'clearly seen that they are witnesses to EXP} and 'their evidence, they say that they are witnesses to the said agreement. They clearly say that the said agreement was not executed in their presence, they can §....r'\/\ '13 only identify the signature which is affixed by each one of them and they did not even know what is the survey number, which was agreed to be sold by to 5 in favour of plaintiff and further in PW.5, who is the scribe, says that--.the; agreerneriti'.wvas ' executed by Defendants -- to pre'c..ence«. 2 his evidence, all other earliefevidevnces'do; the case of the ,"p1_aintilf"regardingdlvexecution of agreement in his favour._ evidence of PW.6, who othei"-:t:han:"the..l1fic1e of plaintiff, he only speaks assistance to the plaintiff for property. He was neither a party to uthuel which culminated in EX.Pl nor heiigisi__"avvare""-of______the terms and conditions of the ' agreer.rient;,.fl"which is said to have been entered into between 'tV1%ije7pVlaintiff and Defendants«~ 1 to 5. it .. 'As against this, the evidence of 511'? Defendant A xclfearly establishes that the Defendant--1 to 5 have not Vexecuted agreement--Ex.Pl. It is also his case that Defendants--1 to 5 have collectively sold the suit ""'\ I4 schedule property to Defendants- 6 to 8 and it is their case that Defendants: to 5 have secured Bank loan and from out of the sale proceeds, they clearedppthe Bank Loan due by them. 531 Defendant also Defendants~l to 5 executed the sale property in favour of Defendants his signature on Ex.Pl and saysdthat he jsfiftoit ta to the transaction culminated. 'liccording to him, none of the Defer;-dax-1:ts;"«have entered into agreement withthe for suit schedule property it. 2 8: 3, who are purcha,se'rs of the suit schedule land which was.._Vpurc}}ased'trom Defendants -- 1 to 5. The produeedv on behalf of Defendant clearly I :that the suit schedule property was the name of Defendants -6 to 8 as evtdencexd by the entries in Khatha of the suit schedule mutated to the name of Defendants-6 to 8. The revenue records conclusively prove that Defendants~ 6 to 8 are in possession, cultivation and enjoyment of the same.
"""\ 15
16) It is further seen from the sale deed, executed by Defendants -- 1 to 5 in favour of Defendants-- to 8, they have executed the said sale deed not only"'0n_*--.their behalf but aiso on behalf of other minor family. Whereas in agreement c-f"sal.e--ET_x.Pll," t'ne"1n_i]no'r_s ' interest is not represented if the described as joint family i11S?(3}Vir1gl. interes_tg"~--.§f"rninors"
therein. It clearly di'scloseAs"'tl'ia'tlthe agreement of sale relied upon by the plaintiff. fiat suspicious in nature. 'l'her*efo'i'e, thee;Court'b.elojy:jonght not to have given a finding in'affiriri'ative:yregarding Issue No.1 so far it pertains to "oflsale by Defendants-- I to 5 in favour o'f...._tl1e In the instant case, plaintiff plv_e'ads__pA'that ih'e«..__wyas put in possession of the suit .sc'l1edv1.iie:vproperty under EX.P1, hence in the suit he flied', not sought for prayer for delivery of possession of the property. On the contrary, he has sought for judgment and decree of permanent injunction as against Defendants --~1 to 8. So far as permanent injunction is concerned, there is an issue framed and the court below has held that in View of """\ 16 Issue No.2 held against him, he is not entitled to the relief of permanent injunction.
17) The plaintiff having failed to regarding possession and also"'perina171ent . iztijunctiorii. ought to have filed app.eal._.
correctness or otherwise of"'th;e»f1ndingV_ fecordednby the Court beiow on thesveitwo hevhas failed to do. Therefore, since" 1,'-e Court below regarding property being held in allsoligejecting his prayer for the absence of there being finding regarding delivery of possession oflsuit ' schedule property in favour of the plaintiff has secured an order of 7p_erf§§1*inance against Defendants~-- 1 to 5, that wi.ll"not:enure to his benefit.
if " l8) It is further seen that the plaintiff has sought direction to execute the sale in respect of suit if Wlschedule property against Defendants--1 to 8, taking into consideration that even before filing of the suit, in 17 U property was sold in favour of the Defendants--6 to 8. VVhile making such a prayer, the defendants have erred in not making proper prayer either to seek.p.._salefl'de'ed executed by Defendants ~ I to 5 in favour
- 5 to 8 is neither binding on hini "nor that .tVhe'sVa1ne is void. In the absence of such prdayer, therej:c'a;1'1i1ot--4 a; decree directing only Defenld-ants-- 1 execiite the V sale deed pertainin§:4'~~to when admittedly the '.:'-dready sold the property in 8, even prior to filing of d f it A passed by the Court belowVvlfdiirectingdéI$efend_a'i1ts~l to 5 to execute the sale deed' of V-scheduie property in favour of plaintiff is iinfiexerfutvable decree and the same is void. Further it is filing the suit, the plaintiff has also not so'u--ght_':fori"' alternative relief, that in the event of the it Defendants --~ 1 to 5 failing to execute the sale deed of suit schedule property in his favour, he is entitled to the "relief of refund of the advance amount claimed. Since '*1 18 there is no such prayer, when this court is reversing the judgment and decree passed by the Court be10.W»,_:
it pertains to specific performance, no suchrelief granted to him in the absence. ffinrthatu if regard. Therefore, the judgInent.Va:n_df'decree the Court below directing 1 "execute''' ' the sale deed of suit schedule 'favour of the plaintiff is held to beffbad"r;.ne"1aw:'A:a;rid"t1f1e same is set aside.
20) reeeier; appeal filed by the DefenV:dV'ahts='he judgment and decree passedeyn me .c'of§;::~£ holding that the plaintiff is entifeicd tofu apecific."'perf0rrnance of agreement dated and entitled to get the sale deed of the suit property executed in his favour from Defendantffil to 5 is set aside without there being any V order as to costs.
Sd/-;:_ Iudge