Karnataka High Court

Sri. Kodanda vs Smt. Mariyamma on 19 December, 2023

Author: K. Natarajan

Bench: K. Natarajan

                           1


  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 19TH DAY OF DECEMBER, 2023

                        BEFORE

         THE HON'BLE MR. JUSTICE K. NATARAJAN

           REGULAR FIRST APPEAL NO.791 OF 2018

BETWEEN:

1 . SRI. KODANDA
    S/O VENKATASWAMY,
    R/AT NO.873, KALIDASANAGAR,
    HOSAKEREHALLI VILLAGE ,
    7TH BLOCK, 2ND CROSS,
    BSK 3RD STAGE,
    BENGALURU - 85.

2 . SRI. NARASIMALU
    S/O VENKATASWAMY,
    AGED ABOUT 52 YEARS,
   R/AT NO.850, KALIDASANAGAR,
   HOSAKEREHALLI VILALGE,
   7TH BLOCK, 2ND CROSS,
   BSK 3RD STAGE,
   BENGALURU - 85.
                                          ... APPELLANTS
(BY SRI. S. NAGARAJA, ADVOCATE)

AND:

1 . SMT. MARIYAMMA
    W/O LATE MARIYANNA,
    AGED ABOUT 69 YEARS,

2 . SRI. MUTTURAJU
    S/O LATE MARIYANNA,
    AGED ABOUT 42 YEARS,
                             2


   BOTH ARE R/AT NO.851,
   KALIDASANAGAR,
   HOSAKEREHALLI VILLAGE,
   7TH BLOCK, 2ND CROSS, 4TH MAIN,
   BSK 3RD STAGE,
   BENGALURU - 85.
                                      ... RESPONDENTS
(BY SRI. KAMALESHWARA POOJARY, ADVOCATE FOR R1 &R2)

      THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED
1.3.2018 PASSED IN OS NO.7878/2011 ON THE FILE OF THE X
ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE, PARTLY
DECREEING THE SUIT FOR PERMANENT INJUNCTION.

     THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 5.10.2023 THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:

                   JUDGMENT

This appeal is filed by the appellant under

Section 96 of CPC, for setting aside the judgment and

decree passed by the X Additional City Civil and

Sessions Judge dated 1.03.2018 in

O.S.No.7878/2011.

2. Heard the argument of learned counsel for

appellants and learned counsel for respondents.

3. The appellants are the defendants and the

respondents are the plaintiffs before the Trial Court.

The ranks of the parties are retained for the sake of

convenience.

4. The case of the plaintiffs is that, the plaintiff

Nos.1 and 2, filed the suit for the permanent

injunction and also mandatory injunction to direct the

defendants to demolish the unauthorized temporary

shed, put up on the schedule property and handover

the vacant possession. It is alleged by the plaintiffs

that the BDA has formed residential sites bearing

situated at Kalidasanagar Slum, Hosakerehalli, BSK III

Stage, Bengaluru (hereinafter referred as 'schedule

property') and allotted to the plaintiff on 23.7.2010 by

receiving consideration of Rs.11,557/-. Later, the

BDA executed lease-cum-sale deed in favour of the

plaintiff on 30.08.2010 and possession was also

handed over. The plaintiff also paid the taxes to the

BBMP. The plaintiff further contended that on the

western side of the schedule property, the defendant

No.2 who is residing by the side of the site

constructed a small house, along with his

brother/defendant No.1. Later, when the plaintiff was

out of station for attending funeral ceremony, it came

to his knowledge that defendant has un-authorisedly

constructed a shed. Therefore, he demanded the

defendants to handover the possession, by issuing

legal notice and also filed complaint to the BDA and

they have not taken any action. Hence, they filed the

suit.

5. The defendants appeared through counsel

contending that the father of the plaintiff No.2 and

husband of the plaintiff No.1 one Mariyanna had

entered into agreement of sale, with defendant No.1

on 26.12.1990 for selling the schedule property, for

Rs.20,000/-, at that time, there was restriction for

executing sale deed. Therefore, transaction was not

completed. The said Mariyanna had undertaken to get

the clearance of formalities for executing the sale

deed, but he died. The plaintiffs filed false case for

making unlawful demand and he has given suitable

reply to the legal notice and hence prayed for

dismissing suit.

6. On the basis of the pleadings, the Trial Court

framed the following issues;

"1) Does plaintiffs prove that, defendants have encroached upon suit schedule property and put up unauthorised shed in it?

1(a). Does defendants prove that, the plaintiffs have executed an agreement of sale on 26.12.1990 in favour of the defendant No.1 and handed over the

possession of the suit property and they legally put up shed in it?

2) Does plaintiffs prove that, the suit shed liable to be demolished and vacant possession of suit property liable to be handed over to them?

3) Does plaintiffs are entitled for permanent injunction?

4) What decree or order?"

7. The plaintiff No.1 himself examined as P.W.1

and got marked 23 documents and on behalf of the

defendants, the defendant no.1 himself examined as

D.W.1 and also examined a witness as D.W.2 and got

marked 6 documents. After hearing the arguments,

the Trial Court answered the issue Nos.1 and 2 in

affirmative, 1(a) and 3 in negative and decreed the

suit. Being aggrieved with decree, the defendants are

before this court.

8. The learned counsel for the appellants has

contended, the plaintiffs case is that, the BDA had

allotted the site in the year 2010. But prior to that

the husband of the plaintiff No.1, one Mariyanna and

even the plaintiff No.2 also executed agreement of

sale in their favour as on 26.12.1990. But there was

a bar for executing the sale deed, therefore sale deed

was not executed. The measurement of site was

20 x 30 ft., out of which 10 x 30 ft (half of the site)

has been agreed to be sold to the defendants. Based

upon the agreement, the defendants are in possession

of the property. The right has been created after the

formalities. Previously the suit was filed only for

injunction. Subsequently, the plaintiff amended the

plaint for mandatory injunction and further contended

that the defendant is in possession of the property on

the agreement of the sale. There was clarification of

the sale deed for 15 years. Therefore, sale deed was

not executed. The BDA had allotted the site, in the

year 1977. The application was filed by the plaintiff

for transferring the allotment in the name of the

plaintiff and it is not new document or new allotment,

but the Trial Court not property considered the

evidence, even though the defendant cannot file suit

for specific performance till completion of the lease

period. Therefore he has contended, the plaintiff filed

false case against defendant. Hence, prayed for

allowing the appeal and to set aside the decree.

9. Learned counsel for the appellant counsel

further contended, that the Trial Court not considered

evidence of D.W.2 and proceeded to pass judgment,

only on the possession, which is not correct. When

the encroachment is there, there is no question of

interfering by the defendant in the possession of the

property, does not arises. The defendant was in

possession of the property, based upon the agreement

of sale. Further contended, the plaintiffs suppressed

the material. The plaintiffs admit the possession of

the property by the defendant, but the same was not

stated in the plaint while filing the suit. Even though,

the plaintiffs issued the legal notice and it was replied

by the defendants prior to the suit and hence prayed

for allowing the appeal.

10. Per contra, the learned counsel for the

respondent has contended the lease-cum-sale

agreement executed, in favour of the plaintiff on

30.08.2010, as per the possession certificate, the

condition No.4, the site cannot be divided into two

parts. Though the alleged agreement for the sale was

not acted upon, the agreement was not proved in

accordance with law. The documents were not

properly stamped. Therefore, the documents of the

defendant cannot be acceptable. The plaintiff was

seeking only possession and supported the judgment

of the Trial Court. Hence prayed for dismissing the

appeal.

11. Having heard the arguments, perused the

records, the point that arises for my consideration are

that;

(1) Whether, the plaintiff proves, that they are owner in possession of the schedule property and the defendants have encroached half of the property measuring 10 x 30 ft.?

(2) Whether the defendants proves, they are in possession of the property, in view of the agreement of the sale executed by the Mariyanna, the husband of the plaintiff No.1?

(3) Whether the judgment and decree passed by the Trial Court calls for the interference of this court?

(4) Whether the Interlocutory Applications, under Order 41 Rule 27 of CPC filed by both parties shall be taken on record as additional evidence?

12. On perusal of the evidence on record, the

pleadings which reveals, the plaintiffs have been

allotted the site by the BDA, in Sy.No.851 carved out

of Sy.Nos.95, 96, 121 and 122. Subsequently, they

are in possession. The plaintiffs also paid the taxes to

the concerned authorities. The Ex.P.1 is the

possession certificate, granted in the name of the

plaintiff Nos.1 and 2. The Exs.P.2 and P.3 are the

bank challan for remitting the prescribed amount by

the plaintiffs. The Ex.P.4 is format of possession

certificate dated 30.08.2008. The Ex.P.5 is

Encumbrance Certificate. Ex.P.6 is Notice. Ex.P.7 is

the Khatha Certificate. Ex.P.8 is the Khatha Extract.

Exs.P.9 to 14 are the tax paid receipts. Ex.P.15 is

voter ID. Ex.P.16 is the water bill. Ex.P.17 is the

electricity bill. Ex.P.18 demand notice issued by the

BWSSB. Ex.P.19 is the acknowledgment issued by the

BDA. Ex.P.20 is complaint given to the BDA by the

plaintiff. Ex.P.21 is endorsement issued by the

police. Ex.P.22 is a legal notice issued by the plaintiff

and Ex.P.23 is the tax paid receipts. It is a clear case

of the plaintiffs that the defendants encroached the

suit schedule property, during November 2011 and

the suit came to be filed on 5.11.2011. Whereas,

case of the defendants is that, he is in possession of

the property under the agreement of sale Ex.D.1. He

has re-iterated the averments made in the written

statement and he has fairly stated, the husband of the

plaintiff No.1, executed the agreement of sale where

both plaintiffs are witnesses. The plaintiff's husband

received Rs.20,000/- as sale consideration and

affidavit also executed by Mariyanna as per Exs.D1

and D.2. The Ex.D.3 is GPA executed by Mariyanna.

The Ex.D.4 is reply letter dated 08.08.2011 to the

plaintiffs advocate stating the agreement and

possession of the property. Exs.D.5 and D.6 are the

postal acknowledgment and receipts. On perusal of

the evidence of D.W.1 and D.W.2 which reveals, there

was agreement of sale, executed by the husband of

plaintiff No.1 and father of plaintiff No.2 in favour of

defendant No.1 for Rs.20,000/- on 26.12.1990. In

order to corroborate his evidence he also examined

D.W.1-Kodanda and D.W.2-Shanumugam A., who also

deposed that there was an agreement between

plaintiff's husband and defendant No.1. He also acted

as witness. The Exs.D1 to D3, reveals the said

Shanumugam acted as witness to the document.

From the evidence of D.W.1 and D.W.2 and the

Exs.D.1 to D.3, it is clear for the same property the

husband of the plaintiff executed agreement of sale

along with affidavit and GPA and received Rs.20,000/-

by agreeing to sell the 10x 30 ft., of site No.851. As

per Ex.D.1 reference is available that the BDA allotted

the site to the plaintiff's husband in the year 1997.

The I.A.No.2/2023 is filed by the appellants/defendant

under Order 41 Rule 27 of CPC. The allotment letter

issued by BDA on 14.10.1977 clearly reveals, the

alleged suit schedule site has been allotted to

Mariyanna by the BDA on 14.10.1977. These

documents corroborates with the evidence of D.W.1

and D.W.2 and Exs.D.1 TO D.3 that the site was

allotted, the husband of plaintiff No.1, Mariyanna, in

the year 1977 itself and after death of Mariyanna both

plaintiffs filed application for re-allotment and got the

re-allotment in the year 2010, as per Ex.P.1.

Whereas, interlocutory applications filed by the

plaintiff along with their application and under Order

41 Rule 27 of CPC, the lease-cum-sale agreement

executed by BDA on 30.08.2010 and another

documents showing the construction of the site by the

defendant. If both the documents filed by both

counsel, Order 41 Rule 27 of CPC required to be taken

on record, as all the documents are relevant to the

court for deciding the issues.

13. As stated above, though the alleged site

No.851 allotted to the Mariyanna in the year 1997, but

there is no sale deed executed in the name of

Mariyanna by BDA. Subsequently, on the application

filed by both the plaintiffs, BDA executed lease-cum-

sale deed in their favour on 30.8.2010. The said sale

deed does not refer and there is no recitals that the

site was allotted previously to the husband of the

plaintiff and it was succeeded by the plaintiff and later

allotted in favour of the plaintiff. Based upon the

same, the possession certificate, Exs.P.1 and P.3

issued by the BDA. Therefore, even though the

husband of the plaintiff No.1 undertaken to agree to

sell half of the schedule property, but the defendant

not filed suit for specific performance against plaintiff

for executing the sale deed, but slept over the matter

for more than 20 years. By that time, the BDA

already allotted site to the plaintiff. Therefore, the

agreement of sale executed by the husband of the

plaintiff will not be binding on the plaintiff Nos.1 and

2. Though, the plaintiff has sent legal notice and

defendants replied, but as per the documents Ex.P.1

and Ex.P.3 and additional documents lease-cum-sale

deed, the plaintiffs are in possession of the property

allotted by the BDA. Therefore, merely the defendant

agreement holder, without filing suit for execution

agreement by seeking specific relief, he cannot plead,

that he is in possession of the said property. That

apart, the site was free allotted site to the plaintiff and

it cannot be sold to any persons and it cannot be

bifurcated. In this regard, learned counsel for the

plaintiffs relied upon the judgment of Hon'ble

Supreme Court reported in 2022 Live Law (SC)61 in

the case of GT Girish Vs Y. Subba Raju (deceased)

by LRs and another. In a similar case, the Hon'ble

Supreme Court has categorically held, the parties

cannot seek any relief on the strength of the

agreement, Apex Court has held as under;

107. We have already found that the agreement to sell dated 17.11.1982, is to be painted with the brush of illegality and pronounced unenforceable. It is undisputed that the plaintiff has paid Rs.50,000/- on the strength of the said agreement. It would appear to be true that a part of this amount was received on the date of the agreement. It may be true that further amount were received by defendant 1(a), the husband of the first defendant. The first defendant died pending the Suit. It is while the Suit was pending that defendant 1(b) the son of the first defendant, had executed the sale deed on 16.09.1996 in favour of the second defendant. It is again undisputed that at the time when the sale deed was executed, both the second defendant and his vendor, defendant 1(b), were not parties in the Suit. We have already found that the sale deed in favour of the second defendant, cannot be treated as a sham transaction and the finding, in fact, on point No.2 by the High

Court, also that the second defendant is not a bonafide purchaser. Once we come to the conclusion that the agreement, relied upon by the plaintiff, cannot be enforced, as to whether, even proceeding on the basis that the sale in favour of the second defendant was made, not in circumstances which would entitle the second defendant to set up the case that he is a bonafide purchaser, the question of granting relief to the plaintiff must first be decided. In other words, in view of the illegality involved in enforcing the agreement dated 17.11.1982, the question would arise, whether, on principles, which have been settled by this Court, the Court should assist the plaintiff or the defendant. We have noted the state of the evidence, in particular, as it is revealed from the deposition of PW2. We have found that the agreement, relied upon by the plaintiff, cannot be acted upon. In such circumstances, we would think that, even if we do not reverse the finding of the High Court that the second defendant is not a bonafide purchaser, it will not itself advance the case of the plaintiff. This is for the reason that his case is in the teeth of the law, as found by us, making it an unenforceable contract. The plaintiff is seeking the assistance of the Court which must be refused."

The above judgment of the Hon'ble Supreme

Court is squarely applicable to this case. That apart,

the Exs.D1 to D3 were not registered documents.

Therefore, the defendants cannot claim any right over

the property and those documents were inadmissible

evidence.

14. Considering the same, I am of the view,

even the defendant documents is acceptable but it will

not come to aid of the defendant. On the other hand

plaintiffs are in possession of the property on the

lease-cum-agreement of sale executed by BDA and

there is a non alienation clause for 15 years. Such