Karnataka High Court
Jayashree W/O Iranna Garagad vs Appasaheb S/O Nagangowda Biradar on 10 November, 2022
Bench: Suraj Govindaraj, G Basavaraja
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RFA.CROB No. 100009 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 10TH DAY OF NOVEMBER, 2022
PRESENT
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
RFA CROSS OBJ NO. 100009 OF 2017 (DEC/INJ-)
BETWEEN:
1. SMT.JAYASHREE W/O IRANNA GARAGAD,
AGE : 47 YEARS, OCC: CIVIL ENGINEER,
R/O: HOUSE NO-9 SHIGGAON PARK
VIDYA NAGAR, HUBBALLI 580 026,
DIST. DHARWAD.]
2. IRANNA S/O GANESH GARAGAD,
AGE ABOUT 46 YEARS, OCC: CIVIL ENGINEER,
R/O: H.NO.9, SHIGGAON PARK,
VIDYANAGAR, HUBBALLI-580026,
DIST. DHARWAD.
...CROSS-OBJECTORS
(BY SRI. V M SHEELVANT AND SRI. M. L. VANTI, ADVOCATES)
AND:
VISHAL
1. APPASAHEB S/O NAGANGOUDA BIRADAR,
NINGAPPA AGE ABOUT 70 YEARS, OCC: PENSIONER,
PATTIHAL
Digitally signed by
VISHAL NINGAPPA
R/O: SIDHARODAMATH NAGAR,
PATTIHAL
Date: 2022.11.10
16:48:28 +0530
OLD HUBBALLI, DIST. DHARWAD.
2. THE COMMISSIONER
HUBBALLI DHARWAD MUNICIPAL CORPORATION
SIR SIDDAPPA KAMBLI MARG
HUBBALLI 580 024, DIST. DHARWAD.
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RFA.CROB No. 100009 of 2017
3. THE DEPUTY DIRECTOR OF TOWN PLANNING
HUBBALLI-DHARWAD MUNICIPAL CORPORATION
SIR SIDDAPPA KAMBLI MARG
HUBBALLI 580 024, DIST. DHARWAD
...RESPONDENTS
(BY SRI. S. S. PATIL, ADVOCATE FOR R1;
SRI. G. I. GACHCHINAMATH, ADVOCATE FOR R2 & R3)
THIS RFA CROSS-OBJECTION IS FILED ORDER 41
RULE 22 R/W. SECTION 151 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 16.01.2017 PASSED IN
O.S.NO.129/2016 ON THE FILE OF THE III ADDITIONAL SENIOR
CIVIL JUDGE, HUBBALL, PARTLY DECREEING THE SUIT
FILED FOR DECLARATION, PERMANENT INJUNCTION AND
MANDATORY INJUNCTION. I
THIS RFA CROSS-OBJECTION HAVING BEEN HEARD
AND RESERVED FOR JUDGMENT ON 03.11.2022, COMING ON
FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, SURAJ
GOVINDARAJ J. PRONOUNCED THE FOLLOWING:
JUDGMENT
1. The above cross-appeal has been filed seeking for the
following reliefs:
a) That the appeal filed by the appellants/plaintiffs be allowed by
setting aside the findings on issues No.2, 5 and 9 in judgment and
decree passed in O.S.No.129/2016 dated 16.01.2017 on the file of
III Additional Senior Civil Judge, Hubballi, holding that plaintiffs are
entitled for declaration to the effect that they are entitled to four
residential units in suit properties as mentioned in the joint
RFA.CROB No. 100009 of 2017
ownership building construction agreement dated 23.03.2015 after
completion of construction work.
b) That the defendant/respondent herein be directed by means of
mandatory injunction to clear the loan and to keep the suit properties
free from the encumbrances to enable the plaintiffs/appellants
herein to transfer / sell the same.
c) That the cost of the proceedings i.e., trial Court and this Hon'ble
Court be ordered to be paid by defendants to plaintiff.
d) That any relief deemed fit circumstances of the case be ordered.
.
2. O.S.No.129/2016 had been filed seeking for the following
reliefs:
a) It be declared that, the plaintiffs are entitled to share 4 residential
units in the suit properties as mentioned in the "Joint Ownership
Building Construction Agreement" dated 23.03.2015 after
completion of construction;
b) The defendant, his servants and persons claiming through him be
restrained by an order of permanent injunction not to obstruct the
plaintiff to carry out and complete the construction as per the "Joint
Ownership Building Construction Agreement" dated 23.03.2015;
c) The defendants be directed by means of mandatory injunction to
clear the loan and to keep the suit properties free from the
encumbrances to enable the plaintiffs to transfer/sell the same;
d) Costs of the suit; and
e) Such other relief as deemed fit be granted.
3. The III Addl. Senior Civil Judge, Hubballi, ('the trial Court',
for short) vide its judgment dated 16.01.2017 in
O.S.No.129/2016, had decreed the suit of the plaintiffs in
part. The defendant was restrained by way of permanent
prohibitory injunction from causing obstruction to the
completion of the construction by the plaintiffs as per the
RFA.CROB No. 100009 of 2017
Joint Ownership Building Construction Agreement dated
23.03.2015.
4. The cross-appellants are the plaintiffs before the trial Court.
The parties are referred to by their ranking before the trial
Court for easy reference.
5. In the suit it was claimed that:
5.1. The defendant is the owner of the house property with
ground floor comprised in CTS No.5048/2A2
measuring 277 sq. yards situate in Krishnapur
extension near Siddarudmath Nagar, Old Hubballi,
Hubballi.
5.2. It was contended that the plaintiff No.1 was a qualified
Civil Engineer and undertaking civil construction work
having expertise in 19 years. The plaintiffs and the
defendants had entered into a joint ownership building
construction agreement, which came to be registered
under document No.6441/14-15 on 23.03.2015.
5.3. That in terms of the agreement, the defendant
entrusted the construction of two floors over his
RFA.CROB No. 100009 of 2017
existing house property to the plaintiffs and on each
floor, the plaintiffs shall construct 4 residential units
measuring about 1859 square feet, apart from balcony
and staircase measuring 500 square feet, similar
construction to be made in the second floor, at the cost
of the plaintiffs. The obligation of providing all basic
amenities, obtaining building permission, completion
certificate etc., was that of the plaintiffs.
5.4. Both the parties have agreed to share equally the
newly constructed portion of the first floor and the
second floor. Even the share of the residential units
was agreed upon in the said agreement.
5.5. Apart there from, the defendant being the owner, who
had taken loan on the property, was required to
discharge the said loan to enable the plaintiffs to make
sale of the units falling to their share.
5.6. The construction was carried out within the time
period. There was no delay or lapses on the part of
RFA.CROB No. 100009 of 2017
the plaintiffs and the plaintiffs invested about 40-45
lakhs for construction.
5.7. When the construction was near completion, the
defendant was got issued a notice on 31.08.2015
calling upon the plaintiffs not to put up construction,
which was replied to.
5.8. The plaintiffs had issued a public notice cautioning
third parties from dealing with the property and
continued with the construction.
5.9. The defendant got issued a second notice on
06.02.2016 canceling the agreement which was also
replied to by the plaintiffs on 17.02.2016.
5.10. In the said notice, there are various allegations made
as regards the construction not being completed within
time and/or that the construction was not of standard
quality.
5.11. The same was replied by the plaintiffs contending that
the construction has been carried out without a break.
The plaintiffs have made all efforts to complete the
RFA.CROB No. 100009 of 2017
same and time was never the essence of the contract.
The quality of construction also being proper, the
defendant could not have any grievance as regards
the same.
5.12. It was further contended that the defendant had no
right to unilaterally terminate the contract. In the
meanwhile, it is alleged that in the quarrel which took
place with the defendant, the defendant along with his
son assaulted plaintiff No.1, for which she was treated
in the KIMS Hospital, Hubballi and it is in that
background that the plaintiffs sought for the aforesaid
relief of declaration that the plaintiffs are entitled to
share four residential units in the suit properties and
for injunction restraining the defendant from
completing the construction as per the Joint
Ownership Building Construction Agreement, as also
seeking fro the relief of clearance of the loan taken by
the defendant.
6. The defendant filed his written submission denying all the
allegations and contending that:
RFA.CROB No. 100009 of 2017
6.1. The plaintiffs had abandoned the construction work
and that the defendant was carrying out construction
at his own cost. The plaintiffs have violated the
agreement in as much as construction was not carried
out within the time frame and/or as per the standards
applicable. It was contended that, in terms of the
agreement dated 23.03.2015, the construction was to
be completed on or before 07.08.2015, time being the
essence of contract.
6.2. That the valuation the suit is not proper inasmuch as
valuation was made under Section 24(d) and 26(c) of
the Karnataka Court Fee and Suits Valuation Act,
Rs.1,000/- for the relief of declaration and Rs.1,000/-
for the relief of injunction. The suit had to be valued on
the agreement value which was registered for a sum of
Rs.39,92,000/-. The suit being essentially filed for
specific performance of the agreement, the valuation
was improper and that the Court could not have the
jurisdiction.
RFA.CROB No. 100009 of 2017
6.3. Apart from that, various allegations have been made
as regards the sub-standard, quality of the wood,
cement, bricks used in the construction, thickness of
the walls, load bearing capacity of the floor,
construction had gone bent requiring the defendant to
put four extra columns on southern side at his own
cost to prevent collapse of the building and it is in that
background that the agreement was cancelled.
6.4. The plaintiffs having abandoned the work, only 40% of
the construction was carried out and 60% remained to
be completed and in order to prevent any further loss
being caused to the defendant, the defendant did not
want the construction to go on.
6.5. The defendant has valued the construction work
carried out by the plaintiffs at Rs.22,00,000/-, which
the defendant is willing to make payment of. The
additional written statement also came to be filed by
the defendant contending that the declaratory relief as
sought for in the plaint cannot be granted in the
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RFA.CROB No. 100009 of 2017
absence of the relief being sought for specific
performance.
6.6. It is again alleged that the violation made was
improper. The defendant contended that the
defendant had invested more than Rs.20,00,000/- for
continuance of construction from the stage where the
plaintiffs had abandoned the construction.
7. It is on the basis of the above pleadings, the trial Court
framed the following issues:
i. Whether the plaintiffs prove that they are the right to completion
of the construction in the schedule properties as per the
agreement dated 23.03.2015?
ii. Whether the plaintiffs prove that non co-operation by the
defendant and the other reasons stated in para 7 of the plaint
resulted in delaying the completion of the construction in the
schedule property?
iii. Whether the defendant proves that non-completion of the
construction within the time fixed in the agreement, resulted in
termination of the agreement?
iv. Whether the plaintiffs prove that defendant is illegally causing
obstruction to the ongoing construction in the schedule property?
v. Whether the plaintiffs prove that defendant is bound to clear the
loan availed by creating charge on the schedule property?
vi. Whether this court no pecuniary jurisdiction to try the suit?
vii. Whether the court fee paid is insufficient?
viii. Whether the suit in the present form is not maintainable?
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RFA.CROB No. 100009 of 2017
ix. Whether the plaintiffs are entitled for the reliefs claimed in the
suit?
x. What order or decree?
8. The first plaintiff examined herself as PW1 and reiterated the
contentions taken up in the plaint. PW1 has admitted that:
8.1. The possession of the property was handed over on
08.08.2014.
8.2. She has admitted that the responsibilities of obtaining
permission, plan sanction etc., was that of the
plaintiffs. The plan for sanction was prepared by the
plaintiffs, which came to be approved by the Hubballi-
Dharwad Municipal Corporation.
8.3. There are various questions which have been posed
by the defendant as regards the cost of construction,
the manner of construction. It was denied that the
quality of construction was not proper. It was denied
that there is any delay in the construction being carried
out. It was denied that the construction was bent on
the southern side. She has stated that, since the
construction on the first floor was extended on the
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RFA.CROB No. 100009 of 2017
southern side, there is requirement of putting up
pillars, which is the usual practice.
8.4. She has denied that the quality of construction
material, namely, sand, bricks and cement used is of
inferior quality.
8.5. She has denied that the bills which have been
produced for purchase of raw materials subsequent to
April, 2015 has been fabricated.
8.6. She has denied that the plaintiff did not have the funds
to put up construction. She has denied that she had
approached the defendant for funds.
8.7. She has denied that the external walls are not 9 inches
and reiterated that the external walls are of 9 inches.
8.8. She has denied that there is any conciliation talks
through the Annigeri Engineer.
8.9. The other suggestions put to her as regards delay in
construction has been denied.
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RFA.CROB No. 100009 of 2017
9. The defendant examined himself as DW1 and reiterated the
grounds made in the written statement.
9.1. He alleged that the construction is not of proper
quality. There was delay in construction. The wall
width was lower than what was required. He had
spent a sum of Rs.15,00,000/- in putting up the
construction after the plaintiff had abandoned the
construction by availing loan.
9.2. He has further stated that he was willing to make
payment of a sum of Rs.22,00,000/- as full and final
settlement of the plaintiffs and in that background, he
has sought for the suit to be dismissed.
10. The defendant was cross-examined and during the course of
cross-examination questions were put to him as regards the
construction being within time, the quality being proper etc.,
which had been denied. The defendant also examined DW2
and DWs.2 to 4 to try and establish that the quality of
construction is not proper.
11. After considering the evidence on record, vide judgment
dated 16.01.2017, the III Addl. Senior Civil Judge, Hubballi
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RFA.CROB No. 100009 of 2017
has partly decreed the suit and restrained the defendant from
interfering with the construction work to be carried out by the
plaintiffs. The plaintiffs having sought for a declaration that
the plaintiffs are entitled to the share of four residential
apartments and for a mandatory injunction directing the
defendant to clear the loan and get the suit properties free
from all encumbrances. Those reliefs have not been
granted. For non-grant of both the reliefs, the reason
attributed by the trial Court was that the construction was not
complete and until the construction is completed, there is no
manner of hand over of the possession of four units to the
plaintiffs and insofar as the loan is concerned, the trial Court
held that, until the construction is completed, no sale could
occur and as such, the appellant's claim for clearance of the
loan is premature without completion of construction.
12. The trial Court was of the opinion that there was no dispute
as regards the entitlement of four residential units as per the
joint agreement and therefore there is no question of giving
declaration on that aspect. The construction when
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RFA.CROB No. 100009 of 2017
completed and the obligation under the joint memo being
discharged, the plaintiffs would be entitled for the same.
13. The cross-appellants are before this Court on the ground
that, the relief sought for ought to have been granted by the
trial Court, insofar as the declaration relating to the four units
and the clearance of the loan, that relief not having been
granted, this Court ought to grant such a relief. The
evidence as regards the joint agreement has been produced
above. There is no dispute as regards the execution of the
joint agreement.
14. The defendant had also filed an appeal in RFA
No.100039/2017 challenging the aforesaid order, which
came to be dismissed on 11.01.2019 on the submission
made by the counsel for the defendant that the appeal has
been rendered infructuous, since the construction has been
completed and the injunction which had been granted would
no longer apply. Though the plaintiff had objected to
dismissal of the appeal, this Court had held that the
contention raised by the plaintiff in the cross-objection would
be considered at the relevant time.
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RFA.CROB No. 100009 of 2017
15. In view of the above, it is clear that the appeal filed by the
defendant has been dismissed and there is no challenge of
the defendant which is now pending. The appeal filed by the
plaintiffs is only restricted for the declaration as regards
entitlement of four units and for mandatory injunction for
clearance of the loan.
16. The trial court having rejected the contentions of the
defendant that there was any violation by the plaintiffs of the
agreement and having come to a positive conclusion that the
plaintiffs have right to continue with the construction, the
defendant not having a right to rescind the agreement, had
restrained itself from passing necessary orders as regards
the aforesaid reliefs, only on the ground that the construction
was not completed.
17. While the appeals were pending, construction has been
completed and the appeal filed by the defendant has been
withdrawn on the ground that it has been rendered
infructuous on account of the construction being completed.
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RFA.CROB No. 100009 of 2017
18. In view of the above, the trial Court having restrained itself
only on account of the construction not being complete, now
that the construction is complete, we are of the considered
opinion that the plaintiffs are entitled for the reliefs which had
not been granted by the trial Court.
19. However, during the pendency of the above appeal, there
were certain other issues which have taken place as regards
the alleged violation of the plan sanctioned, as regards which
the Hubballi-Dharwad Municipal Corporation has initiated
proceedings under Section 321 of the Municipal Corporation
Act. When the same was brought to the notice of this court,
this court had called upon the parties to try and resolve the
issue and comply with the plan sanction so as to save the
building constructed. However, neither the appellant nor the
respondents were interested in resolving the matter.
20. The construction is now complete, there is no issue before
this Court as regards the nature of construction, quality of
construction or compliance of the plan sanctioned, more so,
when the appeal filed by the defendant has been dismissed.
The aspect of any violation of the plan sanctioned is one
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RFA.CROB No. 100009 of 2017
which is required to be taken into consideration by the
HDMC which the HDMC has done by issuance of notice.
Those being separate independent proceedings are not
germane in the present appeal and would have to be
separately agitated in appropriate forum.
21. It is therefore made clear that the HDMC would be free to
continue with any proceedings initiated by it and take action,
if any, in accordance with law. However, in the event of the
HDMC coming to the conclusion that there is violation of the
plan sanctioned requiring any demolition of the construction
put up, we trust and believe that the HDMC would only
demolish the violation leaving the other construction
unaffected. In the event of there being no requirement of
demolition, then the constructed area would be divided
equally between the plaintiffs and the defendant.
22. Both parties contend that they have incurred expenses on
construction. Plaintiff contended that the plaintiff has put up
construction, defendant contended that the plaintiffs
abandoned construction forcing the defendant to take up
construction. Both the parties having constructed, it is not
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RFA.CROB No. 100009 of 2017
clear if only one of them has violated the plan sanction, thus
It can safely be concluded that both have violated the plan
sanction on the basis of the admissions made by each of
them. That is not the matter for consideration before this
Court.
23. In the event of the HDMC coming to the conclusion that there
is no violation, then the constructed area on the first and
second floor would have to be equally divided between the
plaintiffs and defendants.
24. Hence we pass the following:
ORDER
i. The RFA Cross-objection is allowed.
ii. It is declared that the plaintiffs are entitled for four
residential units in the suit properties in terms of the
joint ownership building construction agreement dated
23.03.2015.
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RFA.CROB No. 100009 of 2017
iii. The defendant is also directed to clear the loan, if not
already cleared and provide a no due certificate from
the bank to the plaintiffs.
iv. It is made clear that this Court has not expressed any
opinion as regards any violation of the plan and
HDMC is free to take such action as may be
necessary in this regard and if any of the parties are
aggrieved by the same, the parties are free to follow
their statutory remedies.
v. Upon completion certificate being issued by the
HDMC, the area as regards which the completion
certificate is issued, is directed to be shared between
the plaintiffs and the defendant in equal proportion
whether they make up four residential units or not.
Sd/-
JUDGE
Sd/-
JUDGE
gab
