Karnataka High Court
Ramegowda Alias Chikkaramegowda vs Mallegowda Alias Krishnappa on 30 August, 2023
Bench: S.G.Pandit
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WP No. 11451 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE S.G.PANDIT
WRIT PETITION NO. 11451 OF 2020 (GM-CPC)
BETWEEN:
RAMEGOWDA ALIAS
CHIKKARAMEGOWDA
SINCE DECEASED BY LRS.
1. SMT. DEVAMMA
W/O LATE SRI RAMEGOWDA ALIAS
CHIKKARAMEGOWDA
AGED ABOUT 79 YEARS
R/AT HUYILALU
YELAWALA HOBLI
MYSORE-570001.
2. SRI H R MALLAIAH
S/O LATE SRI RAMEGOWDA ALIAS
CHIKKARAMEGOWDA
AGED ABOUT 79 YEARS
R/AT HUYILALU
Digitally signed by YELAWALA HOBLI
GURURAJ D
MYSORE-570001.
Location: High
Court of Karnataka
SRI H.R. SHIVARAM
SINCE DECEASED BY LRS
3. SMT. ANUSUYA
W/O LATE SRI SHIVARAMU
AGED 42 YEARS
4. KUM. DIVYA H S
D/O LATE SRI SHIVARAMU
AGED 21 YEARS
5. SRI RAGHAVENDRA H S
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S/O LATE SHIVARAM
AGED 19 YEARS
PETITIONERS NO.3 TO 5 ARE
R/AT NO.48, HUYILALU VILLAGE
NAGAVALA POST
YELAWALA HOBLI
MYSORE TALUK-570001.
6. SMT. PUTTARAMAMMA
D/O LATE SRI RAMEGOWDA ALIAS
CHIKKARAMEGOWDA
AGED 46 YEARS
R/AT HUYILALU VILLAGE
YELAWALA HOBLI
MYSORE -570001.
7. SMT. KARIYAMMA
D/O LATE SRI RAMEGOWDA
ALIAS CHIKKARAMEGOWDA
AGED 48 YEARS
R/AT HUYILALU, YELAWALA HOBLI
MYSORE -570001.
8. SMT. RENUKA
D/O LATE SRI RAMEGOWDA
ALIAS CHIKKARAMEGOWDA
AGED 45 YEARS
R/AT HUYILALU VILLAGE
YELAWALA HOBLI
MYSORE -570001.
PETITIONERS ARE REPRESENTED BY
GPA HOLDER/PETITIONER NO.2
SRI H R MALLAIAH.
...PETITIONERS
(BY MS. GANGA GANAPATHY, ADV. FOR
SRI. MANMOHAN P N, ADV.)
AND:
SRI MALLEGOWDA ALIAS KRISHNAPPA
S/O LATE RAMEGOWDA
AGED ABOUT 79 YEARS
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R/A HUYILALU VILLAGE
YELAWALA HOBLI
MYSORE-570001.
...RESPONDENT
(BY SRI M VINAYA KEERTHY, ADV.)
THIS PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER
DATED 29.07.2019 PASSED IN O.S.NO.769/2007 PASSED BY THE
COURT OF II ADDL. CIVIL JUDGE AND SESSIONS JUDGE AT
MYSURU (PRODUCED AS ANNEXURE-D) AND CONSEQUENTLY
PERMIT THE PETITIONERS TO MARKED AGREEMENT OF SALE
DATED 16.04.2003 IN EVIDENCE PRODUCED AS ANNEXURE-C.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners/plaintiffs in O.S.No.769/2007 on the
file of the II Additional Civil Judge and JMFC, Mysore are
before this Court against the order dated 29.07.2019
impounding the agreement to sell dated 16.04.2003 and
seeking permission to mark the said agreement dated
16.04.2003.
2. Heard learned counsel Ms.Ganga Ganapathy for
Sri.P.N.Manmohan learned counsel for petitioners/plaintiffs
and learned counsel Sri.M.Vinaya Keerthi for
respondent/defendant. Perused the writ petition papers.
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3. The petitioners/plaintiffs filed O.S.No.769/2007 for
the relief of specific performance of the agreement to sell
dated 16.04.2003 and for perpetual injunction against the
respondent/defendant. During the course of plaintiffs'
evidence, the plaintiffs produced agreement to sell dated
16.04.2003 to mark as an exhibit. But the trial Court on
going through the document, impounded the same in
terms of the provisions of Karnataka Stamp Act, 1957,
since, the agreement to sell not sufficiently stamped and
registered. The trial Court was of the view that since the
possession of the suit schedule property is handed over in
pursuance of agreement to sell dated 16.04.2003, the
document required payment of stamp duty and
registration.
4. Learned counsel for the petitioners/plaintiffs,
assailing the order would submit that the possession of the
suit schedule property is not handed over nor the
petitioners/plaintiffs have taken possession of the suit
schedule property in pursuance of agreement to sell dated
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WP No. 11451 of 2020
16.04.2003. Learned counsel inviting attention of this
Court to Annexure-C agreement to sell would submit that
first portion of the agreement would say that the vendor
has agreed to handover the possession of the suit
schedule property on the date of entering into agreement
to sell. But in the second portion of the agreement would
indicate that the first party has handed over the
possession of the suit schedule property to the second
party.
5. Learned counsel would submit that the first clause of
the agreement would prevail over the later clause, if there
is inconsistency between two clauses. Thus, it is
submitted that the possession of the suit schedule
property was not handed over in pursuance of the
agreement to sell. It is submitted that since the
possession is not handed over in pursuance of the sale
agreement, the trial Court committed an error in
impounding the agreement. To buttress her argument,
the learned counsel for the petitioner places reliance on
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the judgment of the Hon'ble Apex Court reported in
(1995)5 SCC 444 in the case of KAIVELIKKAL
AMBUNHI (DEAD) BY LRs AND OTHERS v/s H.GANESH
BHANDARY AND OTHERS. Thus, she prays for allowing
the writ petition and to set aside order impounding the
sale agreement dated 16.04.2003.
6. Per contra, learned counsel Sri.Vinaya Keerthi for
respondent would submit that the agreement is very clear
with regard to handing over the possession of the suit
schedule property on the date of entering into agreement.
Further learned counsel would invite attention of this Court
to paragraph 3(e) of the plaint as well as paragraph 12,
wherein the plaintiff has stated that the defendant has
handed over the physical possession of the property to the
plaintiff on 16.04.2003 and the plaintiff took possession of
the property. He submits that when the plaintiff himself
has admitted taking possession in pursuance of the
agreement to sell dated 16.04.2003, the argument of the
petitioners that possession is not taken in pursuance of the
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agreement in question cannot be accepted and submits
that the writ petition is liable to be dismissed.
7. Having heard the learned counsel for the parties and
on perusal of the writ petition papers, the only point which
falls for consideration is as to whether impugned order
require interference?
8. Answer to the above point would be in the negative
for the following reasons:
The suit is one for specific performance based on the
agreement to sell dated 16.04.2003 between the plaintiffs
and respondent/defendant. The agreement to sell dated
16.04.2003 is placed on record as Annexure-C. The
portion of agreement reads as follows:
"PÀæAiÀÄzÀ PÀgÁgÀÄ §gÉzÀÄPÉÆlÖ ¢£À ¸ÀªÀð ªÀiÁ°ÃPÀvÀézÉÆqÀ£É
¸ÀéwÛ£À ¸Áé¢üãÀªÀ£ÀÄß JgÀqÀ£Éà ¥ÁnðAiÀÄ ªÀ±ÀPÉÌ ©lÄÖPÉÆqÀ®Ä MAzÀ£ÉÃ
¥Ánð M¦àgÀÄvÁÛgÉ. F ¢ªÀ¸À MAzÀ£Éà ¥Ánð JgÀqÀ£Éà ¥ÁnðUÉ
PÀæAiÀÄPÉÌ PÉÆqÀ®Ä M¦à PÀæAiÀÄzÀ PÀgÁgÀÄ §gÉzÀÄPÉÆnÖgÀĪÀÅzÉà «£ÀºÀ
¨ÉÃgÉ AiÀiÁjUÀÆ ¥ÀgÁ¢üãÀ ªÀUÉÊgÉ ªÀiÁrgÀĪÀÅ¢®è.
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WP No. 11451 of 2020
MAzÀ£Éà ¥Ánð ¸ÀzÀj ¸ÀévÀÄÛ ¥ÀgÀ¨sÁgÉ, fêÀ£ÁA±À,
¨sÁUÁA±À (ªÀĺÀgï) £ÁåAiÀiÁ®AiÀÄUÀ¼À d¦ÛUÀ½UÉ EvÀgÀ ºÀPÀÄÌUÀ½UÉ
FqÁVgÀĪÀÅ¢®èªÉAzÀÄ ¥ÀÆtð £ÀA©PÉ ªÀÄvÀÄÛ ¨sÀgÀªÀ¸ÉAiÀÄ£ÀÄß
PÉÆnÖgÀÄvÁÛgÉ. F PÀgÁj£À µÀgÀwÛUÉ MAzÀ£Éà ¥Ánð vÀ¦àzÀ°è F
PÀgÁgÀÄ eÁjUÉ vÀgÀ®Ä £ÁåAiÀiÁ®AiÀÄzÀ°è ¸ÀÆPÀÛ PÀæªÀÄ dgÀÄV¸À®Ä
PÀæAiÀÄ¥ÀvÀæ §gɹPÉƼÀî®Ä ªÀÄvÀÄÛ GAmÁUÀvÀPÀÌ RZÀÄð ªÉZÀÑ £ÀµÀÖPÁÌV
ªÀÄÄAUÀqÀ ºÀt 80,000-00 gÀÆ¥Á¬ÄUÀ¼À eÉÆvÉAiÀÄ°è gÀÆ.
50,000-00 (LªÀvÀÄÛ ¸Á«gÀ gÀÆ¥Á¬ÄUÀ¼ÀÄ ªÀiÁvÀæ) gÀÆ¥Á¬ÄUÀ¼ÀÄ
¸ÀºÁ MAzÀ£Éà ¥ÁnðAiÀÄ ZÀgÀ¹ÜgÀ D¹ÛUÀ½AzÀ ªÀ¸ÀÆ®Ä
ªÀiÁrPÉƼÀî®Ä JgÀqÀ£Éà ¥Ánð ºÀPÀÄ̼ÀîªÀgÁVgÀÄvÁÛgÉ.
F PÀgÁj£À µÀgÀwÛUÉ MAzÀ£Éà ¥Ánð ¹zÀÝgÁzÀ ªÉÃ¼É ªÁ¬ÄzÉ
M¼ÀUÁV JgÀqÀ£Éà ¥Ánð PÀæAiÀÄ¥ÀvÀæ §gɹPÉƼÀîzÉ PÁ®ºÀgÀt
ªÀiÁrzÀ°è F PÀgÁgÀÄ gÀzÀÄÝ¥Àr¸À®Ä ºÁUÀÆ GAmÁUÀvÀPÀÌ RZÀÄð-
ªÉZÀÑ £ÀµÀÖPÁÌV ªÀÄÄAUÀqÀ ºÀt gÀÆ. 80,000-00 gÀÆ¥Á¬ÄUÀ¼À ¥ÉÊQ
50,000-00 (LªÀvÀÄÛ ¸Á«gÀ) gÀÆ¥Á¬ÄUÀ¼ÀÄ ªÀÄÄlÄÖUÉÆîÄ
ºÁQPÉƼÀî®Ä ¸ÀºÁ MAzÀ£Éà ¥Ánð ºÀPÀÄ̼ÀîªÀgÁVgÀÄvÁÛgÉ. µÉqÀÆå¯ï
¸ÀéwÛ£À ¸Áé¢üãÀªÀ£ÀÄß 1£Éà ¥ÁnðAiÀÄÄ 2£Éà ¥ÁnðUÉ F ¢ªÀ¸À
©lÄÖPÉÆnÖgÀÄvÁÛgÉ."
(emphasis supplied)
A reading of the above portion makes it abundantly clear
that the first party had agreed to handover possession of
the suit schedule property on the date of entering into
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agreement and later clause would indicate that the first
party handed over possession of the suit schedule
property to the second party. The plaint averment at
paragraph 3(e) and paragraph 12 reads as follows:
"(e) The Defendant handed over the physical
possession of the property to the Plaintiff on
16.04.2003. The defendant agreed to hand over
vacant possession of the property in question at the
time of execution of the Deed of Sale. However,
subsequent to the execution of the Agreement, the
Defendant met the Plaintiff and pleaded that the
Plaintiff could take possession of the property as he
was unable to cultivate the same. The Plaintiff
agreed and accordingly took possession of the
property."
12. It is submitted that the Plaintiff since
16.04.2003, has been cultivating the plaint
schedule property. It is relevant to note that the
Plaintiff has been carrying on agricultural
operations in and upon the plaint schedule
property. It is significant to note that five mango
trees have been planted in and upon the plaint
schedule property. As part and parcel of the
enjoyment of the schedule property in furtherance
of the Agreement to Sell, the Plaintiff has been
plucking fruits."
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The above extracted plaint averment would make it
further clear that the plaintiff himself has stated that he
has taken possession of the suit schedule property on
16.04.2003 in pursuance of the agreement to sell dated
16.04.2003. Learned counsel for the petitioners/plaintiffs
submitted that while interpreting a document, if there is
inconsistency between 2 clauses, earlier clause would
prevail over the later clause. In the present document i.e.
agreement to sell dated 16.04.2003, there is no
inconsistency between the earlier clause and subsequent
clause. Earlier clause would state that the first party
agrees to hand over the possession of the suit schedule
property to the second party on the date of execution of
agreement and later clause would clearly indicate that
possession of the suit schedule property is handed over by
the first party to the second party. Therefore, the reliance
placed on the decision in KAIVELIKKAL AMBUNHI would
not assist the petitioners/plaintiffs in any way.
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9. In terms of Article 5(e) of Karnataka Stamp Act,
1957 (for short "1957 Act"), possession of property is
delivered or is agreed to be delivered before executing
conveyance, the same duty as payable on conveyance is
to be paid on the market value of the property.
Admittedly, the petitioners/ plaintiffs have not paid stamp
duty as required under Article 5(e) of the 1957 Act and the
agreement is not registered. The trial Court is justified in
impounding the document.
10. No ground is made out to interfere with the
impugned order. Accordingly, the writ petition stands
rejected.
Sd/-
JUDGE
MPK
CT:bms
