IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JANUARY, 2021
BEFORE
THE HON'BLE MR. JUSTICE N.K.SUDHINDRARAO
R.F.A.No.1/2007
BETWEEN:
SRI.NADAGOWDA
S/O PUTTASWAMAIAH
AGED 45 YEARS
34, BALAJI BADAVANE
BYADARAHALLI,
YELAHANKA HOBLI
BANGALORE NORTH
TALUK -560 064. ..APPELLANT
(BY SRI.T.SESHAGIRI RAO, ADVOCATE)
AND:
SMT.ANNAPOORNA
W/O SRI.M.N.VENKATA RAMU
R/A: NO.39, KHATA NO.1018
HOUSE LIST NO.1318,
PREMNAGAR, LAGGERE,
BANGALORE
NORTH TALUK -560 058 ..RESPONDENT
(BY SRI.M.VINAYA KEERTHY, ADVOCATE)
THIS RFA IS FILED UNDER ORDER 41 RULE 1 R/W
SECTION 96 OF CPC AGAINST THE JUDGMENT AND
DECREE DATED 11.09.2006 PASSED IN O.S.NO.617/2004
2
ON THE FILE OF THE XVII ADDL. CITY CIVIL JUDGE,
BANGALORE CITY (CCH-16) DECREEING THE SUIT FOR
PERMANENT INJUNCTION.
THIS RFA COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Appeal is directed against the Judgment and decree dated 11.09.2006 passed in O.S.No.617/2004 by the XVII Additional City Civil Judge, Bengaluru, Wherein the suit of the plaintiff for permanent injunction came to be decreed with cost.
2. Being aggrieved by the said Judgment and decree the defendant is in appeal under Section 96 CPC.
3. In order to avoid confusion and overlapping parties are addressed in accordance with the rankings held by them in the trial court.
3
4. It is a defendant's appeal. Plaintiff is one Annapoorna and defendant is one Nada Gowda. Plaintiff claims to be owner of the property in physical possession of the same, and, bearing No.39, khatha No.1018, house list No.1318, Premanagar, Laggere, Bangalore North Taluk, bounded on the East by: Road, West by: Property No.42, North by: Property No.38, South by: Property No.40, measuring East to West 40 feet and North to South 38 feet with a residential shed and compound wall with a gate.
5. The plaintiff claims that she purchased the schedule property for valuable consideration from its previous owner Fazal Hussain under a sale deed dated 14.12.1994 registered in the office of the Sub- Registrar, Bangalore North Taluk registered as document No.8609/94-95 of Book-I, Volume 5289 at page Nos.114 to 120. Plaintiff was put in possession 4 under the said sale deed. The vendor of the plaintiff had constructed a residential shed, a compound wall by putting pillars. All the necessary documents were obtained by the plaintiff from the competent authority for construction of house and name of the plaintiff is maintained in the records pertaining to schedule property by competent authorities like Panchayat, revenue etc. Plaintiff further claims that the defendant is a stranger to the schedule property and he attacked the plaintiff and tried to remove the compound wall and plaintiff suffered serious apprehension for added factor that defendant is stated to be a powerful man.
6. With this pleading she sought for an order of injunction to restrain the defendant. 5
7. Defendant denied the averments made by the plaintiff. He submitted that alleged vendor of the vendor of plaintiff is a bogus Society. It is involved in fabrication of documents and Power of attorney dated 12.03.1982. Society is known for fraud, forgery and cheating the innocent persons at Bengaluru and proceedings were also initiated against the society. According to defendant the suit schedule property is in Sy.No.47/2 it is an agricultural land. No layout was formed, no occasion for power of attorney. The defendant submits that in the alleged power of attorney it is stated that sites have been formed and defendant and others have appointed the Society as their attorney for the sites 1 to 144 but insofar as land in Sy.No.47/2 there is no mention of layout. Society is not a genuine creature. It is stated by defendant that a portion of land in Sy.No.47/2 was acquired by BDA and BDA had issued notice to the defendant's 6 vendor under Section 12(2) of the Land Acquisition Act. Plaintiff is neither the owner nor in possession of the schedule property.
8. The learned trial Judge was accommodated with the oral evidence of PW-1 - Annapurna, DW-1 - S.P.Nadagowda, DW-2- Ninganna C, DW-3 - B.K.Sampath Kumar, DW-4- C.Nagaraj and documentary evidence Ex.P-1 to Ex.P-20 on behalf of plaintiff and Ex.D-1 to D-15 on behalf of defendant.
9. Upon conclusion of trial, suit came to be decreed with cost.
10. Learned counsel for appellant-defendant Sri.Seshagiri Rao submits plaintiff has filed a suit in respect of a non existing property with an illegal motive of claiming the schedule property which is a 7 hard earned property for the defendant. The defendant purchased the schedule property under a registered sale deed dated 20.12.2003- Ex.D-1 from Sri.C.Ramamurthy, Sri.C.Nagaraju, Sri.C.Ninganna, Sri.C.Muniraju, sons of Channappa and he has been enjoying the property as a sole owner. Learned counsel would further submit that no layout was formed in the schedule property. There was no acquisition of entire property.
11. Learned counsel further submits the schedule property as claimed in the plaint is East to West 40 feet and North to South 38 Feet. As per the topographical description, the schedule property exactly falls within the landed property in Sy.No.47/2 of Laggere Village. The society claimed by the plaintiff is a myth and the activities done by the society are not legal. Defendant purchased the schedule property 8 under a valid and genuine sale deed Ex.D-1 executed by its owners who are the sons of one Channappa.
12. Learned counsel Sri.Vinaya Keerthy for respondent submits that plaintiff has nowhere set up a false or adverse title. Plaintiff acted as duty bound purchaser with bonafide interest and after due enquiries. The schedule property was purchased by the plaintiff under registered sale deed dated 14.12.1994 from Byrappa, power of attorney holder of Fazal Hussain who in turn had purchased from the Malleswaram Tailoring Co-operative Society Ltd., and that a site was allotted by the Society to one Fazal Hussain who purchased it for a valuable consideration under a sale deed dated 07.02.1982 marked as Ex.P2.
13. The main crux and bone of contention of the parties is that the schedule property is formed out of 9 valid layout or a portion of agricultural land in Sy.No.47/2 of Laggere Village out of which some portion has already been acquired by BDA for the purpose of formation of outer ring road.
14. Now the question is chronology of claim of defendant is; originally schedule property formed part of Sy.No.47/2 which belonged to one Channappa. The said Channappa was the owner in possession of the schedule property. Upon his death it devolved upon his children Sri.C.Ramamurthy, Sri.C.Nagaraju, Sri.C.Ninganna, Sri.C.Muniraju. Said Children (sons as the exclusive legal heirs of Channappa) inherited the property under intestate succession. It is also stated that a portion of land in Sy.No.47/2 was acquired by BDA. However extent is not available regard being had to the fact the acquisition of land by BDA is not questioned here. It is submitted that the 10 defendant purchased schedule property from the children of Channappa. According to them it is not a layout, it is a simple vacant land may be the erstwhile agricultural land. The point involved here is it is not the clash of title over the property. The plaintiff claims schedule property in its own line. The defendant also claims in a parallel line. However the climax is the original owners of the schedule property are the sons of Channappa.
15. The main point is that both the plaintiff and defendants have their stand of claiming ownership and possession over the schedule property against each other. Now the question is, formation of Societies are made for different purposes. But very often misuse and abuse of their formation are taking place. Now in this case, the plaintiff claims to have purchased the property from its previous owner Fazal Hussain under 11 registered sale deed dated 14-12-1994. The vendor of the plaintiff had purchased the property from the Malleswaram Tailoring Co-operative Society Limited through a registered sale deed dated 07-02-1982. Insofar as the sale or purchase of the schedule property is concerned the very contents of the sale deed of the Society reveals that it is named as Malleswaram Tailoring Co-operative Society Limited. By this definitely it is not a Housing Co-operative Society which executed sale deed on 07-02-1982 in favour Fazal Hussain. The property is bearing No.39, Katha No.1018, House List No.1318, Premanagar, Laggere, Bangalore North Taluk, is allotted as per the decision of the Executive Committee and the boundaries mentioned is :
East by : Road, West by: Property No.42, North by: Property No. 32 South by: Property No.40.12
16. In this connection, it is necessary to mention the schedule as stated in Ex.P2 which is as under:
"¨ÉAUÀ¼ÀÆgÀÄ GvÀÛgÀ vÁ®ÆèPÄÀ AiÀıÀªÀAvÀ¥ÄÀ gÀ ºÉÆç½ ®UÉÎgÉ UÁæªÀÄ oÁtzÀ°è ¸ÀA¥ÀzÀªÀgÄÀ «AUÀr¹gÀĪÀ ¸ÉÊlÄUÀ¼À ¥ÉÊQ ºÉZïJ¯ï 1318(39) £Éà £ÀA§gÀÄ ¸ÉÊnUÉ ZÀPÀÄ̧A¢:
¥ÀƪÀðPÉÌ : gÀ¸ÛÉ
¥À²ÑªÀÄPÉÌ : 42£Éà ¸ÉÊlÄ
GvÀÛgÀPÉÌ : 38£Éà ¸ÉÊlÄ
zÀQëtPÉÌ : 40£Éà ¸ÉÊlÄ
F ªÀÄzsÉÊ EgÀĪÀ ¥ÀƪÀð ¥À²ÑªÀÄ-40 CrUÀ¼ÀÄ GvÀÛgÀ zÀQët 55 CrUÀ¼ÀÄ ªÀżÀî ¸ÀévÄÀ Û F PÀæAiÀÄPÉÌ ¸ÉÃjgÀÄvÉÛ."
17. Ex.P1 is the registered sale deed executed in favour of plaintiff by the power of attorney holder of the vendor Fazal Hussain for a cash consideration of Rs.42,000/-. The sale deed is dated 14.12.1994. The consequential documents are the panchayat documents regarding endorsement, assessment extracts so on and so forth. Photograph is produced wherein a small structure and vacant land are seen. 13 But normal practice in case of the allotment of sites to a member if it is a recognized sector like Government employee or other identifiable Society lands are purchased in the name of the Society and it would be sold in favour of the person as per the merit enjoyed by the particular person. It is not the sale deed that is executed by a particular member of the Society as per the resolution of the Executive Committee and site or property is sold. For a moment if tendency is observed, as a matter of fact, entire property could be sold and further mishap is sale deed is executed by a Secretary of Malleswaram Tailoring Co-operative Society Limited. At the cost of repetition, it is necessary to mention that Society definitely is not a Housing Co-operative Society. No legal formalities are involved. The sale deed in favour of the vendor of plaintiff by the said Society for the cash consideration of Rs.5,000/- and site is sold in accordance with the 14 rules and regulations of the bye laws of the Society. Here, basically, the ownership details of the Society is never mentioned. Further the very reading of the document says that it is suspicious and the other documents are revenue documents.
18. The plaintiff in paragraph 3 of her plaint states that, the schedule property was purchased by her for a valuable consideration from previous owner Fazal Hussain under the registered sale deed dated 14-12-1994 registered in the office of the Sub Registrar, Bangalore North Taluk in Book I, Volume 5289 pages 114-120 registered as document No.8609/94-95 and the plaintiff was put into possession of the schedule property on the same day. The vendor of the plaintiff had purchased the property from the Malleswaram Tailoring Co-operative Society Limited. There is no details or documents regarding from whom the Malleswaram Tailoring Co-operative 15 Society purchased the schedule property. Regard being had to the fact that the endorsement are shown as revenue documents. It is quite a surprise that plaintiff claims that she purchased the property straight from Fazal Hussain who had purchased from the Society. Title deed executed by the Society and the details of the Society are not forthcoming. Meanwhile it is brought to my notice that Society was suspended as per notice dated 04-01-2002- Ex.D15.
19. Ex.P2 is written in most unbecoming manner and that it does not contain the details specifically as to who has executed sale deed and in whose favour. The wordings are overlapping and finally, it is seen as if the Society has sold it through the Secretary which is not the case.
20. Another controversy perhaps an undesirable act is that plaintiff in some way wants to drive the 16 property belonged to Channappa and Power of Attorney was obtained from him to sell the property. If that logic were to be the reality, the Societies are not formed and are not agency and power of attorney is governed by rules of agency it proceeds on estimation that Channappa executed power of attorney. But a strong suspicion in this case is that no power of attorney is produced right from day one. Thus, viewing from any angle, the property does not fit into the source claimed by plaintiff.
21. The question is, Ex.D5 is the RTC extract of Sy.No.47/2 wherein column No.9 which is meant for ownership shows the names of Rammurthy, Nagaraju Ninganna, Muniraju, Susheelamma c/o Muniyappa and all of them are the legal heirs of Channappa. There is no whisper about the title of the Society or authorization to sell the schedule property. 17
22. Insofar as development authority is concerned, it is a foregone conclusion that, location is stated to be within BDA limits, but the formation of site numbers are mentioned for the reasons best known to the vendor of the plaintiff.
23. Insofar as defendant is concerned, he simply says that it is an agricultural land and portion of which is acquired by BDA and out of the remaining property, children of Channappa sold the schedule property in favour of the defendant. The recognized and popular principle regarding sale transaction is Nemo dat quod non habet The meaning of this Latin Maxim is, 'no one can convey better than what he has'. The Sub-Registrar cannot create title. They can only maintain the stock of event of conveyance and related transactions made by one person. In case, in respect of property a person who does not has title get a registered sale deed done in favour of another person 18 even if another person knows about the titlelessness, the registered sale deed which comes out of Sub- Registrar cannot form a title deed. The basic aspect is, one should have authority and marketable title. Here, the Society might have been issued notices and what ever be the conditions, it is quite surprising to know the Registrar of Societies or any concerned person or Government officers are tight lipped regarding the action taken against the Society. It does not know how many sites or properties have been sold. In the circumstances, the trial court has utterly failed to examine the legal position and draw proper inference of Ex.P1, 2, 3 and failed to concentrate on lack of execution of sale deed in favour of the Society on the first instance, the power of attorney issued by either Channappa or his legal representatives at the second instance, non production of power of attorney at the third instance, no details of formation of layout and 19 essential regulation. In this connection, the titlelessness of the plaintiff is exposed and the trial judge utterly failed to appreciate the overwhelming evidence on record and has given his reasons superficially which I do not accept. The judgment of the trial court is not entitled to be sustained and it is capricious and perverse and it is liable to be set aside by allowing this appeal.
For the aforesaid reasons, the appeal filed by the appellant is allowed.
Judgment and decree dated 11.09.2006 passed by the trial judge in O.S.No.617/2004 is set aside. In the result, suit of the plaintiff is dismissed. No orders as to costs.
Sd/-
JUDGE SBN/tsn*