Sri Nadagowda vs Smt.Annapoorna
2021 Latest Caselaw 10 Kant

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.

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

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.

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

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

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

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

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

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

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,

South by: Property No.40.

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.

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

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

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

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.

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

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

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*