Sri Sayyedahmedsha S/O ... vs Sri Veerayya S/O Veerabasayya ...
2022 Latest Caselaw 859 Kant

               IN THE HIGH COURT OF KARNATAKA
                       DHARWAD BENCH

           DATED THIS THE 19TH DAY OF JANUARY 2022

                           BEFORE

       THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                      MSA.NO.385/2011
BETWEEN

SAYYEDAHMEDSHA
S/O SAYYEDHUSAINASHA KHATIB,
SINCE DECEASED BY HIS LRS.

1(a)   NOORPASHA BEGUM
       W/O SAYYEAHMEDSHA KHATIB,
       AGED ABOUT 63 YEARS,
       OCC: HOUSEHOLD.

1(b)   SAYED GOUSEPASHA
       S/O SAYYEAHMEDSHA KHATIB,
       AGED ABOUT 44 YEARS,
       OCC: ENGINEER.

1(c)   SAYED KHADARPASHA
       S/O SAYYEAHMEDSHA KHATIB,
       AGED ABOUT 43 YEARS,
       OCC: ADVOCATE.

1(d)   SAYED MEHABOOBPASHA
       S/O SAYYEAHMEDSHA KHATIB,
       AGED ABOUT 42 YEARS,
       OCC: ENGINEER.

(ALL ARE RESIDENTS OF DIDDI ONI, OLD HUBLI
HUBLI @ HUBBALLI, DIST: DHARWAD-580004.
                                                ... APPELLANTS

(BY SRI.SANTOSH B.MANE, ADV.)
                               2




AND

1.    VEERAYYA S/O VEERABASAYYA
      KOCHIAPURMATH,
      AGE: 61 YEARS, OCC: AGRICULTURE
      & BUSINESS, R/O DESHPANDENAGAR,
      HUBLI, DIST: DHARWAD-580004

2.    YALLAPP AS/O BASANAGOUDA
      RAYANAGOUDA,
      AGE: 55 YEARS, OCC: AGRICULTURE,
      R/O HALIYAL VILLAGE,
      TQ.HUBLI, DIST: DHARWAD.

3.    SMT.GEETA W/O BASAVARAJ BIRADAR,
      AGE: 50 YEARS, OCC: HOUSEHOLD,
      R/O HALIYAL VILLAGE,
      TQ.HUBLI, DIST: DHARWAD.

                                              ... RESPONDENTS

(BY SRI.G.KRISHNAMURTHY, SENIOR COUNSEL FOR
    SRI.RAJASHEKHAR P.UGARGOL, SRI.S.B.HAVARDAR AND
    SRI.P.Y.SHAGOTI & SRI.V.S.BICHAGATTI, ADVS. FOR R1,
    R2 & R3 HELD SUFFICIENT)

      THIS APPEAL IS FILED UNDER ORDER 43 RULE 1 OF CPC

SEEKING TO SET ASIDE THE JUDGMENT PASSED IN R.A.NO.167/2006

PASSED BY THE COURT OF II ADDL. SENIOR CIVIL JUDGE, HUBLI

DATED 16.04.2011 RESERVING THE ORDER OF THE III ADDL. CIVIL

JUDGE (JR.DN) (C/C IV ADDL. CIVIL JUDGE (JR.DN.) HUBLI IN

O.S.NO.1376/1989 DATED 20.10.2005


      THIS APPEAL COMING ON FOR FURTHER HEARING THIS DAY,

THE COURT DELIVERED THE FOLLOWING:
                               3




                         JUDGMENT

The captioned Miscellaneous Second Appeal is filed by

the original defendant No.2 questioning the remand order

passed by the first appellate court in R.A.No.167/2006.

2. Respondent/plaintiff by basing his claim on a

registered agreement to sell dated 06.04.1987 filed a suit

against the vendor Basavanagouda Rayanagoudar. The

said suit was filed on 26.11.1987. The present deceased

appellant/defendant No.2 who had in fact tendered caveat

on behalf of the vendor of respondent/plaintiff purchased

the suit schedule property on 27.11.1987. Having

purchased the suit schedule property, he tendered vakalath

on behalf of deceased defendant No.2. On 18.02.1988 the

deceased appellant/defendant No.1 got himself impleaded

as defendant No.2 on the premise that he has purchased

the suit schedule property.

3. The appellant/defendant No.2 contested the

proceedings by filing written statement. His claim was that

the registered sale deed is based on an unregistered

agreement to sell executed by defendant No.1 on

28.03.1984.

4. The trial court found that defendant No.1 has

not chosen to contest the proceedings and therefore, by

invoking the provisions of Order 8 Rule 10 of CPC partly

decreed the suit against defendant No.1 by order dated

01.10.1988 and ordered to continue the claim of

respondent/plaintiff against defendant No.2. Interestingly,

after lapse of 5 years, the deceased defendant No.2 filed a

memo stating that defendant No.1 has died on 25.06.1990.

It is in this background, defendant No.2 filed I.A.6 under

Section 151 of CPC praying for dismissal of the suit on the

ground that suit is abated against defendant No.1,

consequently the claim against defendant No.2 would also

not survive. Though respondent/plaintiff filed objection to

I.A.6, the trial court allowed the application by order dated

21.10.2005 by holding that suit is not maintainable against

defendant No.2.

5. Respondent/plaintiff feeling aggrieved by the

order dated 21.10.2005 passed on I.A.6 filed writ petition

before this court in W.P.No.26834/2005. However, this

court was of the view that writ petition is not maintainable

and therefore, permitted respondent No.1 to withdraw the

writ petition with liberty to prefer an appeal. It is in this

background, respondent/plaintiff preferred an appeal

before the first appellate court assailing the order of the

learned Judge passed on I.A.6 dated 21.10.2005. The said

appeal was contested by the present appellant herein. The

first appellate court having examined the rival contentions

has taken judicial note of Para 8A of the plaint wherein

respondent/plaintiff has specifically contended that

defendant No.2 has infact purchased the suit schedule

property during the pendency of the suit and has got sale

deed executed on 27.11.1987 from defendant No.1.

Therefore, the first appellate court was of the view that

even if there is any specific claim against defendant No.2,

there are specific pleadings that defendant No.2 has

purchased during pending suit. Therefore, he is pendente

lite purchaser of the suit schedule property and the trial

court ought to have proceeded with the trial relegating the

parties to lead their respective ocular and documentary

evidence to substantiate their claim. The first appellate

court was also compelled to examine the date of

registration of the sale deed and there are some

observations made by the first appellate court in paragraph

33 of its judgment. On these set of reasoning, the first

appellate court allowed the appeal, set aside the order

passed by the trial court on I.A.6 and remitted the matter

for fresh trial. It is this remand order, which is under

challenge.

6. Learned counsel for the appellants would

vehemently argue and contend before this court that the

order passed on I.A.6 was not at all appealable under

Section 96 of CPC. He would submit to this court that

remedy if any available to the respondent/plaintiff was to

approach this court under Section 115 of CPC. Therefore,

at the threshold, he would submit to this court that appeal

filed before the first appellate court itself was not

maintainable. On this count, he would seek interference

and set aside the remand order passed by the first

appellate court.

7. The second limb of argument canvassed by the

appellant is that the trial court has decreed the suit against

defendant No.1 on 01.10.1988 and therefore,

respondent/plaintiff cannot proceed against defendant

No.2. He would also submit to this court that the first

appellate court has erred in holding that the suit would not

abate. The clinching evidence on record clearly indicate

that legal representatives of deceased defendant No.1 were

not brought on record within prescribed/stipulated period

of 90 days from the date of death.

8. To buttress his arguments, he placed reliance on

the following judgments.

i) Madan Naik (dead by LR's) and Others V.

Mst.Nansubala Devi and Others - AIR 1983 SC

676.

ii) Chhelaram V. Manak - AIR 1997 Rajasthan 284.

iii) Om Prakash Navani and Another V. Juno

Changes Pereira and Others - AIR 2003 Bombay

381.

iv) RAtansingh V. Vijaysingh and Others - AIR 2001

SC 279.

v) West Bengal Essential Commodities Supply

Corporation V. Swadesh Agro Farming and

Storage Pvt. Ltd., and Another - AIR 1999 SC

3421.

vi) Veerabhadrappa and Another V. Jagadishgouda

and Others - 2002(5) Kar.L.J. 55 (DB).

vii) Chhotalal Hariram and Another V. Dilip Kumar

Bhatterjee and Others - AIR 1976 Calcutta 337.

9. Per contra, learned senior counsel

Sri.G.Krishnamurthy repelling the arguments addressed by

the learned counsel for the appellants would vehemently

argue and contend before this court that, remand order

passed by the first appellate court is in accordance with law

and does not warrant any interference at the hands of this

court. Learned senior counsel would further argue and

contend before this court that the order passed by the

learned Judge on I.A.6 is perverse and suffers from serious

material irregularity. Learned Judge has not only held that

suit abates on account of death of defendant No.1, but

consequently, dismissed the suit as not maintainable which

in itself would indicate that there is an adjudication and if

there is an adjudication, the order though one liner would

squarely fall within the definition of a decree as defined

under Section 2 of CPC. Therefore, he would submit to this

court that the order of the learned Judge stating that suit is

dismissed as not maintainable would invariably amount to

adjudication and the same amounts to decree and

therefore, the remedy if any that was available to the

respondent/plaintiff was to have recourse under Section 96

of CPC.

10. On this point, he would place reliance on the

following judgments.

i) Rishab Chand Jain and Another Vs Ginesh

Chandra Jain (2016) 6 SCC 675.

ii) Karnataka Industrial Corporation Vs State of

Karnataka MANU/KA/5684/2018.

11. Learned senior counsel would counter the

contention of the appellants that the order passed by the

learned Judge on I.A.6 is appealable under Section 115 of

CPC. Learned senior counsel would submit to this court

that such recourse is not available. If civil revision petition

is filed under Section 115 of CPC and if there is an

adjudication by the High Court and if the revision petition is

allowed, the proceedings must stand concluded and the

order under Section 115 of CPC should not lead to re-

opening of a case. Therefore, by interpreting principles as

stated supra, he would submit to this court that contention

of the appellants that civil revision petition under Section

115 of CPC ought to have been exhausted by the

respondent/plaintiff is misconceived.

12. Learned senior counsel would submit to this

court that stand of the appellants that since suit was

decreed against defendant No.1 dated 01.10.1988 and

execution petition is not filed, therefore, the relief against

defendant No.2 is barred by limitation would not arise at

all. Learned senior counsel would submit to this court that

the actual lis that was required to be adjudicated by the

trial court was, as to whether defendant No.2 is a bona fide

purchaser. When the suit agreement is not at all disputed

by defendant No.1 during his lifetime, then main question

that would arise for consideration before the trial court

was, whether defendant No.2 is a bona fide purchaser or

not. Therefore, he would submit to this court that learned

Judge erred in dismissing the suit summarily on a wrong

assumption that suit has abated without relegating the

parties to full-fledged trial. These relevant aspects are

taken into consideration by the first appellate court and has

rightly come to the conclusion that the order passed by the

learned Judge on I.A.6 suffers from material irregularity

and accordingly, set aside the order and remitted the

matter for fresh consideration.

13. Learned senior counsel would submit to this

court that, if this order is interfered with, then valuable

rights of respondent/plaintiff would be lost forever and

respondent/plaintiff would be left remediless, which is not

permissible under law. On these set of defences, he would

submit to this court that the remand order passed by the

first appellate court does not warrant any interference at

the hands of this court.

14. Heard the learned counsel for the appellants,

learned senior counsel for respondent/plaintiff and perused

the remand order under challenge. I have also gone

through the judgments cited by the respective parties.

15. Respondent/plaintiff has filed a suit for specific

performance of contract in O.S.No.1376/1989 specifically

contending that defendant No.1 has executed a registered

agreement to sell in respect of 3 acres 9 guntas of land on

06.04.1987. After filing of the suit, the plaintiff realized

that defendant No.2 knowing fully-well has set up a sale

deed and therefore, by amending the plaint at para 8A, has

taken a specific contention that defendant No.2 is not a

bona fide purchaser. On perusal of the records, this court is

of the view that the order of learned Judge on I.A.6 has not

only lead to miscarriage of justice but further complicated

the case and both the parties have wasted six years before

the first appellate court and 10 years before this court. If

there is subsequent transaction and if there is alienation,

then it is a trite law that burden of proving respective cases

are in two folds. The agreement holder is required to

establish that there is an agreement to sell executed by the

owner for a sale consideration on receipt of whatever

earnest money that is contemplated under the agreement.

The respondent/plaintiff is further required to prove his

readiness and willingness. The burden insofar as on the

subsequent purchaser is to prove and establish that he is a

bona fide purchaser without notice for valuable sale

consideration. He may also establish by contending that his

rights do emanate from the earlier agreement to sell as

pleaded in the present case on hand. Section 19(b) of the

Specific Relief Act enumerates the person against whom

contracts may be specifically enforced. This clause lays

down that a contract may be specifically enforced against

any person who derives his title from a party subsequently

to the contract. If defendant No.2 is claiming under

defendant No.1, the clause(b) of Section 19 would comes

into play. An exception is, however, created by the section

in favour of a bonafide transferee for value who has paid

his purchase money in good faith and without notice. The

respondent/plaintiff has specifically contended that

defendant No.2 has purchased after filing of the suit. This

issue has to be gone into. The doctrine enumerated under

Clause (b) of Section 29 protects only the purchaser

without notice prior to suit. The defence of bonafides of

purchase by a subsequent purchaser pending suit does not

arise. Section 19 does not immunize the purchaser, if sale

is after filing of the suit. Therefore, this court is unable to

understand as to how learned Judge could have dismissed

the suit as abated against defendant No.1 and

consequently, proceeded to dismiss the suit against

defendant No.2 by holding that it is not maintainable. Even

strictly speaking, as on the date when this order was

passed by the learned Judge on I.A.6, the was suit already

decreed against defendant No.1 by order dated 01.10.1988

by invoking the provisions of Order 8 Rule 10 of CPC. If

defendant No.1 died subsequent to passing of the order,

this court is unable to understand as to how the

proceedings would abate when there was already decree

against defendant No.1 by invoking the provisions of Order

8 Rule 10 of CPC. Therefore, the learned Judge was not at

all justified in holding that the suit has abated ignoring the

earlier order wherein the suit was already decreed against

defendant No.1. All these significant details are dealt by

the first appellate court and having examined the material

on record has rightly set aside the order passed by the

learned Judge and has remitted the matter for fresh

consideration. This remand order is in accordance with law.

16. I do not find any illegality or infirmity in the

judgment and decree passed by the first appellate court in

remanding the matter. Therefore, without interfering with

the remand order passed by the first appellate court,

keeping open all the contentions raised by the appellants

and respondents, the miscellaneous second appeal is

dismissed.

17. Since the suit is of the year 1989, the parties

shall cooperate and the trial court shall expeditiously

dispose of the suit.

Sd/-

JUDGE MBS/-