Smt. C. Amaravathi vs Sri. R.P.Vilas
2023 Latest Caselaw 2278 Kant

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 19TH DAY OF APRIL, 2023

                       PRESENT

     THE HON'BLE MR. JUSTICE P.S.DINESH KUMAR

                           AND

       THE HON'BLE MR. JUSTICE C.M. POONACHA

   REGULAR FIRST APPEAL No.33 OF 2017 (RES)

BETWEEN:

1 . SMT. C. AMARAVATHI
    W/O.D.JAYARAM,
    AGED ABOUT 47 YEARS,

2 . SRI J JITENDRA KUMAR
    S/O D.JAYARAM,
    AGED ABOUT 26 YEARS,

3 . SRI D JAYARAM
    S/O LATE DASAPPA,
    AGED ABOUT 53 YEARS,

4 . J JEEVITHA
    D/O D JAYARAM,
    AGED ABOUT 24 YEARS,

   ALL ARE RESIDING AT: NO.66,
   3RD FLOOR, 1ST CROSS,
   CHOWDAIAH BLOCK,
   BENGALURU-560032.
                                       ... APPELLANTS
(BY SRI VINOD C S, ADVOCATE)
                            2




AND

1 . SRI. R.P.VILAS
    S/O.RAGHUNATH N,
    AGED ABOUT 53 YEARS,

2 . SMT VANESHRI
    W/O R.P.VILAS,
    AGED ABOUT 49 YEARS,

3 . SRI R BALAJI
    S/O RAGHUNATH N,
    AGED ABOUT 41 YEARS,

4 . SMT SUREKHA
    W/O BALAJI,
    AGED ABOUT 34 YEARS,

   ALL ARE R/AT NO.66, 1ST CROSS,
   CHOWDAIAH BLOCK,
   BANGALORE-560032.
                                         ...RESPONDENTS
(BY SRI M C RAVI KUMAR, ADVOCATE FOR R1 TO R4)

     THIS RFA IS FILED U/O 41 RULE 1 R/W SEC.96 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 29.09.2016
PASSED IN OS NO.6618/2013 ON THE FILE OF THE IX ADDL.
CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH 5),
DECREEING THE SUIT FOR EVICTION AND ETC.


     THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 02.03.2023, COMING ON FOR PRONOUNCEMENT
OF JUDGMENT, THIS DAY, POONACHA, J., DELIVERED THE
FOLLOWING:
                             3




                       JUDGMENT

The above appeal is filed by the Defendants

under Order XLI Rule 1 read with Section 96 of the

Code of Civil Procedure (hereinafter referred to as the

'CPC') challenging the judgment and decree dated

29.9.2016 passed in OS.No.6618/2014, wherein the

suit filed by the Plaintiff has been decreed.

2. For the sake of convenience, the parties

will be referred to as per their rank before the Trial

Court.

3. The brief facts of the Plaintiffs' case is that

Defendant Nos.1 and 2 are the absolute owners of the

suit property bearing BBMP New Municipal No.66,

I Cross, Chowdaiah Block, Bangalore - 32 consisting

of ground, first, second and third floor building

(hereinafter referred to as the 'entire property'). That

the same was sold in favour of the Plaintiffs by a

registered Sale Deed dated 16.8.2012 for a valuable

consideration of `80 lakhs and possession of the said

property was delivered to the Plaintiffs. The Defendant

Nos.3 and 4 had signed the said Sale Deed as

witnesses. It is the further case of the Plaintiffs that

after execution of the registered Sale Deed dated

16.8.2012 the Defendants requested the Plaintiffs to

permit them to stay in the third floor portion

(hereinafter referred to as the 'suit property') for a

period of one month and had assured that they would

vacate the said property by making alternate

arrangements within one month. That the Plaintiffs,

in order to facilitate the Defendants to arrange for an

alternate accommodation, as a humanitarian gesture,

permitted them to occupy the suit property on the

specific assurance that they would vacate the suit

property as soon as they secured an alternate

accommodation or within one month, whichever is

earlier.

3.1 It is the further case of the Plaintiffs

that even after lapse of one month the Defendants

failed to vacate the suit property as assured by them

inspite of the Plaintiffs' repeated and continuous

requests and demands. Hence, the Plaintiffs have

withdrawn the permission given to the Defendants

and called upon them to vacate the suit property.

That the suit property in the occupation of the

Defendants will fetch a rent of not less than

`20,000/- per month and the Plaintiffs have suffered

huge financial loss. Hence, the Defendants are liable

to pay damages at `35,000/- pm., from August, 2012

till date of surrender of the premises.

3.2 It is the further case of the Plaintiffs

that they got issued a legal notice dated 31.7.2014

which was duly served on the Defendants on

2.8.2014, despite which the Defendants have not

replied to the same nor vacated the premises under

their occupation. Hence, the Plaintiffs have filed the

instant suit seeking for vacant possession of the suit

property as well as direction against the Defendants to

pay damages of a sum of `35,000/- pm., from August

2012 till date of surrender.

4. The Defendants entered appearance and

contested the case of the Plaintiffs. The Defendants

have denied the case putforth by the Plaintiffs. It is

the categorical case of the Defendants that the sale

consideration payable by the Plaintiffs was a sum of

`1.60 crores and the sale consideration amount paid

by the Plaintiffs of `80 lakhs was only part of the

consideration amount. That as per the Agreement of

Sale dated 2.5.2012 the Plaintiffs had agreed to

purchase the entire property for a sum of `1.60

crores. That an advance of `10 lakhs was paid by way

of cheque on 2.5.2012 and the remaining balance

consideration of `1.50 crores was payable by the

Plaintiffs to Defendants at the time of execution of the

Sale Deed. It is the further case of the Defendants

that on 25.5.2012 another registered Sale Agreement

was executed between the Plaintiffs and Defendant

Nos.1 and 2 wherein the Plaintiffs mentioned the sale

consideration as `80 lakhs and the cheque dated

2.5.2012 for `10 lakhs as well as cash of `10 lakhs as

advance was paid and the balance sale consideration

of `60 lakhs was payable by the purchasers to the

vendors at the time of execution of the Sale Deed.

That the Sale Deed dated 16.8.2012 was executed

and the Plaintiffs paid a total Sale consideration of

`80 lakhs and assured to pay the balance sale

consideration of `80 lakhs as per the Agreement of

Sale dated 2.5.2012. Hence, the Plaintiffs are liable to

pay the balance sale consideration of `80 lakhs. That

it was admitted in the agreements executed prior to

the Sale Deed that possession of the front portion of

the property was agreed to be delivered and the

Plaintiffs undertook to pay the lease amounts of the

tenements of the rear portion and that the balance

sale consideration was agreed to be paid by the

Plaintiffs within 3 months after the Sale Deed. Hence

the Defendants sought for dismissal of the suit.

5. The Trial Court, based on the pleadings of

the parties has framed the following issues:

"1) Whether the plaintiffs prove that they become the owners of the suit schedule property by virtue of the sale deed 16.8.2012 and the defendants are in permissive possession of the suit schedule property?

2) Whether the plaintiffs prove that the defendants are in illegal possession over the suit schedule property hence they are entitled for the damages at the rate of `35,000/-p.m.?

3) Whether the defendants prove that the plaintiffs have paid only `80 lakhs out of the total sale consideration amount of `1,60,000/-, hence, they have not handed over the possession of the schedule property to the plaintiffs?

4) Whether the plaintiff is entitled for the reliefs as sought for?

5) What order or decree?"

6. Plaintiffs Nos.1 and 2 examined themselves

as PWs.1 and 2 and Exs.P1 to P19 were marked in

evidence. Defendants Nos.1 and 3 examined

themselves as DWs.1 and 2. However, no documents

were marked on behalf of the Defendants. The Trial

Court by its judgment and decree dated 29.9.2016

passed the following order:

"(a) The plaintiffs are entitled to recover possession of schedule premise from defendants 1 to 4 and they are entitled to recover `12,000/- p.m. as damages from them from the date of suit till they vacate the suit schedule premise.

(b) The defendants are directed to vacate and deliver vacant possession of the suit premise to the plaintiffs within ninety (90) days subject to payment of damages as ordered.

(c) Draw a decree accordingly."

7. Being aggrieved the present appeal is filed.

8. It is vehemently contended on behalf of the

Appellants/Defendants that:

i) Suit of the Plaintiffs is required to be dismissed in view of

the fact that the entire sale consideration amount as agreed to be paid pursuant to the Agreement of Sale dated 2.5.2012 has not been paid;

ii) that the Defendants are entitled to remain in possession of the suit property till the balance sale consideration of `80 lakhs is paid by the Plaintiffs. Hence, they seek for allowing of the above appeal and granting of the reliefs sought for by them.

9. Per contra, learned Counsel for the

Respondents/Plaintiffs contended that:

i) the Trial Court has rightly appreciated the entire case of the parties in a proper perspective and decreed the suit which is not liable to be interfered with in the present appeal;

ii) the Defendants having executed the registered Sale Deed dated 16.8.2012 cannot hold on to possession of the suit property;

             iii)      the case putforth by the
       Defendants             that         balance     sale

consideration is payable is false and untenable and the Defendants have not made any counter claim seeking for recovery of the balance sale consideration.

10. We have considered the submissions of

both the learned counsel and perused the material on

record. The point that arises for consideration is,

"Whether the judgment and decree passed by the Trial Court is liable to be interfered with?"

11. The Trial Court while decreeing the suit of

the Plaintiffs has recorded the following findings:

  i)        the schedule property under
the     registered   Agreement   of   Sale

dated 25.5.2012 (Ex.P5) is the same property found under the registered Sale Deed dated 16.8.2012 (Ex.P6) and the schedule to the plaint;

ii) It is forthcoming from the evidence of PW.2 that at the time of execution of Ex.P5 - Sale Agreement, daughter and son of Defendant Nos.1 and 2 were also present;

iii) In Ex.P6 - Sale Deed, Ex.P5

- Sale Agreement dated 25.5.2012 is mentioned, which was subsequently registered on 28.5.2012 for the same sale consideration amount;

iv) the Defendants have not set up any counter claim in the suit and failed to take any steps against the Plaintiffs for recovery of the alleged balance sale consideration of `80 lakhs;

v) the contention of the Defendants that the Plaintiffs are still to pay `80 lakhs could not be accepted;

vi) the Plaintiffs are the owners of the suit property by virtue of the Sale Deed dated 16.8.2012 and the Defendants are in permissive possession of the suit property;

12. Upon a re-appreciation of the oral and

documentary evidence available on record, it is clearly

forthcoming that the essential facts are undisputed

inasmuch as, Defendant Nos.1 and 2 who were the

owners of the suit property have executed the Sale

Deed dated 16.8.2012. It is the contention of the

Defendants that the entire sale consideration amount

has not been paid under the Sale Deed Dated

16.8.2012. It is their specific contention that although

the sale consideration in the registered Sale Deed

dated 16.8.2012 is `80 lakhs, the sale consideration

amount agreed between the parties is `1.60 crores

and hence, the balance sale consideration amount of

`80 lakhs is required to be paid. In support of their

contention that the total sale consideration agreed

between the parties is `1.60 crores, the Defendants

have pleaded about an Agreement of Sale dated

02.05.2012. However, no such Agreement is produced

and marked in evidence by the Defendants. It is clear

from a perusal of the Sale Deed Ex.P6 that the

vendors have handed over the possession of the

property to the purchasers. There is no stipulation in

the Sale Deed regarding the Vendors retaining any

portion of the property or regarding any tenants being

occupation of any portion of the property conveyed

under the Sale Deed -Ex.P6.

13. It is a settled proposition of law that once

an immovable property has been sold and title to the

said property has been transferred as contemplated in

law, in the event of non payment of sale price or part

thereof, the remedy open to the vendee is to seek for

payment of the balance sale price. This settled

proposition of law has been rightly appreciated by the

Trial Court by considering the oral and documentary

evidence available on record as well as by noticing the

various judgments which have laid down the

aforementioned settled proposition of law.

14. It is also relevant to note that the

Defendants have not initiated any proceedings to

recover the alleged balance sale consideration of

`80 lakhs nor they have any counter claim in the suit

filed by the Plaintiffs.

15. Having regard to the admitted position that

the Defendants Nos.1 and 2 have executed the

registered Sale Deed dated 16.8.2012 and the

property mentioned in the said Sale Deed has been

duly conveyed to the Plaintiffs, the case sought to be

putforth by the Defendants that they are entitled to

retain possession of the plaint schedule property till

payment of the sale price is untenable and liable to be

rejected.

16. Having regard to the aforementioned, the

Appellants/Defendants have failed in demonstrating

that the judgment and decree passed by the Trial

Court is in any manner erroneous or contrary to the

material on record and is required to be interfered

with in the present appeal. Hence, the question

framed for consideration is answered in the negative

and in favour of the Plaintiffs.

17. The Defendants, vide Memo dated

1.2.2023 have placed on record a Demand Draft for

`3,26,000/- bearing No.025417 drawn on HDFC Bank.

18. It is forthcoming that this Court, vide order

dated 7.3.2017 had granted interim stay of the

judgment and decree passed by the Trial Court

subject to the Appellants depositing a sum of `5 lakhs.

The Appellants having deposited the sum of `5 lakhs,

this Court vide on 9.8.2017 ordered that the said

amount be paid to the Respondents/Plaintiffs by

directing that a sum of `1,25,000/- be transferred to

each of the Respondent Nos.1 to 4. This Court, vide

order dated 15.12.2020 directed the Appellants to

deposit a further sum of `6,88,000/- and upon such

deposit the said amount was ordered to be paid to

each of the Respondent Nos.1 to 4. Consequent to

the same, the Appellants deposited a sum of

`3,50,000/- as is forthcoming from order dated

10.3.2021 which amount was disbursed to

Respondent Nos.1 to 4.

19. Having regard to the earlier orders passed

by this Court in the above appeal, the sum of

`3,26,000/- deposited by the Appellants, vide Demand

Draft bearing No.025417 dated 30.1.2023 shall be

disbursed to Respondent Nos.1 to 4 equally.

20. In view of the aforementioned, we pass the following:

ORDER

i) The above appeal is dismissed with

costs;

ii) The Judgment and Decree dated

29.09.2016, passed in O.S.No.6618/2013 by the

IX Addl. City Civil and Sessions Judge at

Bangalore (C.C.H.5) is affirmed.

Sd/-

JUDGE

Sd/-

JUDGE

nd