H G Somashekar vs B M Harish
2022 Latest Caselaw 5151 Kant

                            1


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 22ND DAY OF MARCH, 2022

                      BEFORE

        THE HON'BLE MR.JUSTICE R.NATARAJ

 REGULAR SECOND APPEAL NO.1860 OF 2015 (POS)

BETWEEN:

1 . H G SOMASHEKAR
    AGED ABOUT 61 YEARS,
    S/O. H.C. GOPALACHAR,

2 . S. SARVAMANGALA
    AGED ABOUT 58 YEARS,
    W/O. H.G. SOMASHEKAR

   BOTH ARE RESIDENTS OF
   GOKUL JEWELLERY WORKS,
   KOTHARI COMPLEX,
   CHIKKABASTHI ROAD,
   HASSAN - 571 112.

                                    ...APPELLANTS
(BY SRI. G.S. ARUNA, ADVOCATE FOR
    SRI. SHANMUKHAPPA, ADVOCATE)

AND:

1 . B M HARISH
    AGED ABOUT 37 YEARS,
    S/O. B.S. MALLESHAPPA,
    R/AT SHIVAGANGA KRUPA,
    1ST MAIN, HEMAVATHINAGAR,
    HASSAN 571 112.
                              2


2 . SRI. KANNIKAPARAMESHWARI
    CO-OPERATIVE BANK LTD,
    B.M. ROAD,
    HASSAN - 571 112
    REPRESENTED BY ITS SECRETARY
                                           ...RESPONDENTS

(BY   SRI.  L.M.CHIDANANDAYYA,  ADVOCATE  FOR
RESPONDENT NO.1
SRI. Y.S. MURUGENDRA, ADVOCATE FOR RESPONDENT
NO.2)

     THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CODE OF CIVIL PROCEDURE, 1908
AGAINST    THE  JUDGMENT     AND   DECREE    DATED
27.07.2015 PASSED IN R.A NO.281/2013 ON THE FILE OF
THE PRINCIPAL DISTRICT JUDGE, HASSAN, DISMISSING
THE APPEAL AND CONFIRMING THE JUDGMENT AND
DECREE DATED 26.08.2013 PASSED IN O.S NO.15/2010
ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE,
HASSAN.

     THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

This appeal is filed by the defendant Nos.1 and 2 in

O.S. No.15/2010 challenging the concurrent finding of fact

recorded by both the Courts that the plaintiff is entitled to

recover possession of the suit schedule property from

defendant Nos.1 and 2.

2. The parties will henceforth be referred to as

they were arrayed before the Court of the Principal Senior

Civil Judge, Hassan (henceforth referred to as the 'Trial

Court'). The appellants were the defendant Nos.1 and 2

and the respondent Nos.1 and 2 were the plaintiff and

defendant No.3 respectively before the Trial Court.

3. The suit in O.S. No.15/2010 was filed for

recovery of possession of the suit property and for

damages at the rate of Rs.5,000/- per month. The plaintiff

claimed that the defendant Nos.1 and 2 had availed a loan

from the defendant No.3 and had mortgaged the suit

property. Due to the default in repayment of the loan, the

defendant No.3 initiated action for recovery of the loan by

proceeding against the mortgaged property. The plaintiff

claimed to be the successful bidder at a public auction

conducted by the Sales Officer and the plaintiff purchased

the suit property for a total sale consideration of

Rs.20,20,000/-. He claimed that the sale was confirmed

on 11.12.2008 and a sale certificate was registered on

15.12.2008. The defendant No.3 who was under an

obligation to recover possession and deliver it to the

plaintiff failed to do so and allowed defendant Nos.1 and 2

to continue in unauthorized possession of the suit schedule

property. Hence, the plaintiff sought for recovery of

possession and for mesne profits.

4. The defendant Nos.1 and 2 contested the suit

and denied the default on their part to repay the loan to

defendant No.3. They also denied auction of the suit

schedule property and its purchase by the plaintiff. They

claimed that there were several irregularities in the

conduct of auction and in that regard, they filed an appeal

before the Deputy Registrar of Co-operative Societies,

Hassan, challenging the validity of the sale. They also

claimed that the suit was bad for non-joinder of necessary

parties and the sale was not legal.

5. The defendant No.3 admitted the contentions

of the plaintiff and also the proceedings running up to the

sale of the suit property in favour of the plaintiff.

6. Based on these rival contentions, the Trial

Court framed the following Issues:

"1. Whether the plaintiff proves that, he is the absolute owner of the suit schedule property?

2. Whether the plaintiff proves that defendant No.1 and 2 are in unlawful possession of suit schedule property?

3. Whether the plaintiff proves that, he is entitled for the possession of the schedule property from defendant No.1 and 2?

4. Whether the plaintiff proves that, he is entitled for damages of Rs.5,000/- per month with interest at the rate of 18% p.a., from defendant No.1 and 2 from the date of suit till handling over of the possession of the suit schedule property?

5. Whether defendant No.1 and 2 proves that suit of the plaintiff is not maintainable for non-joinder of necessary parties?

6. Whether defendant No.3 proves that suit of the plaintiff is not maintainable against defendant No.3?

7. What Order or Decree?"

7. The plaintiff was examined as PW.1 and he

marked documents as Exs.P1 to P10. The defendant No.1

was examined as DW.1 and he marked documents as

Exs.D1 to D19 and examined a witness as DW.2.

8. Based on the oral and documentary evidence,

the Trial Court held that the plaintiff had proved his lawful

title over the suit property and consequently, decreed the

suit and directed the defendant Nos.1 and 2 to deliver the

vacant possession of the suit schedule property to the

plaintiff and also quantified the damages payable by the

defendant Nos.1 and 2 to the plaintiff at the rate of

Rs.3,000/- per month with interest at 6% per annum from

the date of suit till the date realization.

9. Being aggrieved by the above, the defendant

Nos.1 and 2 filed Regular Appeal in R.A. No.281/2013.

10. The Court of the Principal District Judge,

Hassan, (henceforth referred to as the 'First Appellate

Court') secured the records of the Trial Court, heard the

learned counsel for the parties and framed the points for

consideration and in terms of its Judgment and Decree

dated 27.07.2015, dismissed the appeal holding that the

plaintiff had proved that he had lawfully purchased the suit

property and that he was entitled to recover possession of

the suit property from the defendant Nos.1 and 2.

11. Being aggrieved by the aforesaid Judgment

and Decree, the present Regular Second Appeal is filed by

the defendant Nos.1 and 2.

12. The learned counsel for defendant Nos.1 and

2/appellants submitted that defendant No.1 had

challenged auction sale in COP. Appeal No.427/2008 and

defendant Nos.1 and 2 filed COP. Appeal No.428/2008

before the Karnataka Appellate Tribunal (KAT) and the said

appeals were dismissed by the KAT as barred by limitation

in terms of two separate Orders of even date i.e.,

31.01.2022. Thereafter, the defendants filed Revision

Petition before the Government. He, therefore, submitted

that the proceedings in the suit were therefore, misplaced

and it was incumbent upon the plaintiff to take recourse to

the remedies provided under the Karnataka Cooperative

Societies Act, 1959 (henceforth referred to as 'the Act of

1959') to recover possession of the suit property.

13. The learned counsel for the respondent No.1 -

plaintiff, on the other hand, submitted that the appeal filed

by the defendant Nos.1 and 2 before the Karnataka

Appellate Tribunal was dismissed and the Order dated

22.06.2018 passed in the Revision Petition

No.CO/31/CAP/2013 filed before the State Government

was also set at naught by this Court in W.P.

No.32210/2018 in terms of the Order dated 15.07.2021.

He, therefore, submitted that the defendant Nos.1 and 2

were unsuccessful in their attempts to challenge the

auction sale and therefore, the defendants were bound to

comply with the Judgment and Decree of the Trial Court.

14. As rightly submitted by the learned counsel for

the plaintiff, the defendant Nos.1 and 2 who had raised a

loan from the defendant No.3 were unable to repay the

loan which perforced the defendant No.3 to initiate action

for recovery by proceeding against the mortgage of an

asset. The defendant No.3 conceded the plaint averments

and claimed that the suit property was indeed sold to the

plaintiff at a public auction and sale certificate was

registered in accordance with law. In that view of the

matter, the plaintiff was justified in filing a suit for

recovery of possession from the defendant Nos.1 and 2

and the Trial Court has considered the material on record

and has held that the plaintiff is entitled to recover the

possession of the suit property from defendant Nos.1 and

2. The First Appellate Court has also applied itself

thoroughly and has upheld the Judgment and Decree of

the Trial Court which is based on acceptable oral and

documentary evidence. Hence, there is no substantial

question of law which arises for consideration in this

appeal and the same is dismissed.

15. Before parting with the case, it is relevant to

note that the Trial Court had awarded damages at the rate

of Rs.3,000/- per month along with interest at 6% per

annum from the date of the suit till the date of realization.

Defendant Nos.1 and 2 had not delivered possession of the

suit property to the defendant No.3 under the mortgage

deed and therefore, defendant Nos.1 and 2 were not liable

to pay the damages as quantified by the Trial Court.

Hence, to this extent, the impugned Judgment and Decree

dated 26.08.2013 of the Trial Court in O.S. No.15/2010 as

well as the impugned Judgment and Decree dated

27.07.2015 of the First Appellate Court in R.A.

No.281/2013 are modified.

16. In addition, the defendant Nos.1 and 2 are

granted six months to quit and deliver vacant possession

of the suit schedule property to the plaintiff subject to the

defendant Nos.1 and 2 filing an affidavit before this Court

within 10 days from today, undertaking to quit and deliver

vacant possession of the suit schedule property to the

plaintiff by or before 30.09.2022 without compelling the

plaintiff to take steps to execute the decree passed by the

Trial Court. They shall undertake to pay rent at Rs.3,000/-

per month from today till 30.09.2022. They shall also

undertake that they will not sub-let or under let or allow

any trespasser to enter into possession of the suit schedule

property. The benefit of this Judgment will not be

available to defendant Nos.1 and 2 if the affidavit as stated

above is not filed within 10 days.

The pending interlocutory applications stand

disposed off.

Sd/-

JUDGE

sma