Karnataka High Court
Sri Somashekar Gowda vs M/S Pralok Projects on 2 January, 2023
Bench: Ravi V Hosmani
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE RAVI V. HOSMANI
M.F.A.No.5931 OF 2021 (CPC)
C/W
M.F.A.No.5935 OF 2021 (CPC), M.F.A.No.5939 OF 2021 (CPC),
M.F.A.No.5940 OF 2021 AND M.F.A.No.5933 OF 2021 (CPC)
BETWEEN:
SRI. SOMASHEKAR GOWDA
S/O PUTTEGOWDA, AGED 56 YEARS
R/A DEVALDAKERE VILLAGE
DEVALDAKERE POST, SAKLESHPUR TALUK
HASSAN DISTRICT-573 165.
REP. BY GPA HOLDER
SRI. CHETAN KUMAR
AGED 34 YEARS
S/O SRI RAMACHANDRA
R/A NO.169, 3RD MAIN ROAD
AZAD NAGAR, CHAMRAJPET
BENGALURU-560 018.
...APPELLANT
(COMMON IN ALL APPEALS)
[BY SRI GURU PRASANNA S., ADVOCATE (PH) ]
AND:
1. M/s. PRALOK PROJECTS
A REGISTERED PARTNERSHIP FIRM
HAVING ITS REGISTERED PARTNESHIP FIRM
HAVING ITS REGISTERED OFFICE
AT NO.104, PALACE HEIGHTS
CHAKRAVARTHY LAYOUT
PALACE CROSS ROAD, BENGALURU-560 020
REP. BY MANAGING PARTNER R. PRAKASH.
2
2. R. PRAKASH
S/O LATE S.M. RAJU
AGED ABOUT 50 YEARS
R/A NO.325, 'A' IDEAL HOMES
RAJARAJESHWARI NAGAR
BENGALURU-560 020.
3. D.LOKESH S/O LATE DASAPPA
AGED ABOUT 55 YEARS
R/A NO.326, 15TH CROSS
SADASHIVANAGAR
BENGALURU-560 080.
4. SRI. CHELUVARAJU S/O DASAPPA
AGED ABOUT 55 YEARS
R/A NO.48, 18TH CROSS
MUNESHWARA NAGAR
BENGALURU-560 059.
5. SRI. CHINNINGE GOWDA
S/O GEJJE GOWDA
AGED ABOUT 67 YEARS
R/A MUDDINAGERE
MANDYA TALUK, KILARA POST
MANDYA DISTRICT-571 450.
6. D.VISHWANATH S/O LATE D. DASEGOWDA
AGED ABOUT 56 YEARS
R/A NO.748, NARMADANANDI ROAD
PIPELINE ,BENGALURU-560 050.
7. M.MURALI S/O LATE C.MANJAPPA
AGED ABOUT 49 YEARS R/A NO.3317,
5TH CROSS, 1ST MAIN ROAD
GAYATHRI NAGAR,BENGALURU-560 021.
8. B.SEENAPPA S/O DASAPPA
AGED ABOUT 59 YEARS
R/A NO.31, NEW BEL ROAD
RMV 2ND STAGE, BENGALURU-560 094.
...RESPONDENTS
(COMMON IN ALL APPEALS)
3
[BY SRI. Y.R.SADASIVA REDDY, SR. COUNSEL FOR
SRI. D.SRINIVAS MURTHY, ADVOCATE FOR R4 TO R8 (PH);
SRI. B.N.JAYADEVA, ADVOCATE FOR R3;
NOTICE TO R1 & R2 IS DISPENSED WITH V/O DATED 27.10.2022]
THIS M.F.A. No.5931/2021 FILED UNDER ORDER 43 RULE 1(r) R/W
SECTION 151 OF CPC., AGAINST THE ORDER DATED 04.01.2021 PASSED
ON I.A.NO.6 IN O.S.NO.245/2016 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND CJM., MANGALURU, ALLOWING THE I.A.NO.6 FILED U/O 39
RULE 1(a) OF CPC.
THIS M.F.A. No.5935/2021 FILED UNDER ORDER 43 RULE 1(r) R/W
SECTION 151 OF CPC., AGAINST THE ORDER DATED 04.01.2021 PASSED
ON I.A.NO.9 IN O.S.NO.245/2016 ON THE FILE OF THE LEARNED SENIOR
CIVIL JUDGE AND CJM., MANGALORE, ALLOWING FILED U/O 39 RULE
1(a) OF CPC.
THIS M.F.A. No.5939/2021 FILED UNDER ORDER 43 RULE 1(r) R/W
SECTION 151 OF CPC., AGAINST THE ORDER DATED 05.10.2021 PASSED
ON I.A.NO.13 IN O.S.NO.245/2016 ON THE FILE OF THE II ADDITIONAL
SENIOR CIVIL JUDGE, CJM., MANGALORE, D.K., ALLOWING FILED U/O 39
RULE 4 R/W SEC.151 OF CPC.
THIS M.F.A. No.5940/2021 FILED UNDER ORDER 43 RULE 1(r) R/W
SECTION 151 OF CPC., AGAINST THE ORDER DATED 04.01.2021 PASSED
ON I.A.NO.7 IN O.S.NO.245/2016 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND CJM., MANGALURU, ALLOWING THE I.A.NO.7 FILED U/O 39
RULE 1(a) R/W SECTION 151 OF CPC.
THIS M.F.A. No.5933/2021 FILED UNDER ORDER 43 RULE 1(r)
AGAINST THE ORDER DATED 04.01.2021 PASSED ON I.A.NO.8 IN
O.S.NO.245/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND CJM.,
MANGALURU, ALLOWING THE I.A.NO.8, FILED U/O 39 RULE 1(a) R/W
SECTION 151 OF CPC FILED BY THE 7TH DEFENDANT.
THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 27.10.2022, THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING AT DHARWAD BENCH THROUGH VIDEO CONFERENCE:
4
JUDGMENT
These appeals arise out of impugned orders passed on interim
applications in O.S.no.245/2016 by II Additional Senior Civil Judge
& CJM, Mangaluru, and hence connected.
2. Appellant herein was plaintiff, respondents no.1 to 8
herein were defendants no.1 to 8 in O.S.No.245/2016. For sake
convenience, they will be hereinafter referred to as such.
3. MFA.no.5931/2021 is filed challenging order dated
04.01.2021 allowing I.A.no.6 filed by defendant no.4 under Order
XXXIX Rule 1(a) of CPC for temporary injunction restraining plaintiff
etc from interfering with peaceful possession and enjoyment of
schedule 'A' property till disposal of suit.
4. MFA.no.5933/2021 is filed challenging order dated
04.01.2021 allowing I.A.no.8 filed by defendant no.7 under Order
XXXIX Rule 1(a) of CPC for temporary injunction restraining plaintiff
etc from interfering with peaceful possession and enjoyment of
schedule 'D' property till disposal of suit.
5. MFA.no.5935/2021 is filed challenging order dated
04.01.2021 allowing I.A.no.9 filed by defendant no.5 under Order
XXXIX Rule 1(a) of CPC for temporary injunction restraining plaintiff
etc from interfering with peaceful possession and enjoyment of
schedule 'B' property till disposal of suit.
6. MFA.no.5939/2021 is filed challenging order dated
05.10.2021 allowing I.A.no.13 filed by defendants no.4 to 7 under
Order XXXIX Rule 4 of CPC for vacating temporary injunction
granted on 11.11.2016.
7. MFA.no.5940/2021 is filed challenging order dated
04.01.2021 allowing I.A.no.7 filed by defendant no.6 under Order
XXXIX Rule 1(a) of CPC for temporary injunction restraining plaintiff
etc from interfering with peaceful possession and enjoyment of
schedule 'C' property till disposal of suit.
8. O.S.No.245/2016 was filed against defendant no.1
represented by defendants no.2 and 3 for specific performance of
agreement of sale dated 05.05.2007 in respect of entire schedule
properties; for declaration that sale deed dated 18.10.2008
executed by defendant no.3 in favour of defendant no.4 in respect
of schedule 'A' property; for declaration that sale deed dated
18.10.2008 executed by defendant no.3 in favour of defendant no.5
in respect of schedule 'B' property; for declaration that sale deed
dated 18.10.2008 executed by defendant no.3 in favour of
defendant no.6 in respect of schedule 'C' property; for declaration
that sale deed dated 18.10.2008 executed by defendant no.3 in
favour of defendant no.7 in respect of schedule 'D' property and for
declaration that sale deed dated 18.10.2008 executed by defendant
no.3 in favour of defendant no.8 in respect of schedule 'E' property
as not binding on plaintiff (hereinafter referred to as 'suit schedule
properties' for short) and also for permanent injunction restraining
defendants from alienating or encumbering etc., any portion of suit
schedule properties etc.
9. In said suit, plaintiff filed I.A.no.2 under Order XXXIX
Rule 1 and 2 of CPC for temporary injunction restraining defendants
etc from alienating or encumbering etc. all or any of items of suit
schedule properties pending disposal of suit. On 11.11.2016, trial
Court granted ex-parte ad-interim temporary injunction. Thereafter,
defendants no.4 to 7 entered appearance, filed written statement
and objections. They also filed I.A.no.13 under Order XXXIX Rule 4
of CPC, to vacate ad-interim order granted on 11.11.2016.
10. Likewise, defendant no.6 - purchaser of schedule 'A'
property filed I.A.no.6 for temporary injunction restraining plaintiff
from interfering with his possession and enjoyment of schedule 'A'
property. Similar applications were filed by defendants no.5, 6 and
7 seeking temporary injunction against plaintiff in respect of
schedule 'B', 'C' and 'D' properties respectively.
11. On consideration, trial Court passed impugned orders
whereunder it allowed I.As.no.6 to 9 and 13 filed by defendants
no.4 to 7, granting temporary injunction as sought for and vacating
ad-interim injunction granted on 11.11.2016. Aggrieved by said
order, plaintiff is in appeal.
12. Sri. Guru Prasanna S., learned counsel appearing for
Appellant - plaintiff submitted that defendant no.1 by name M/s.
Parlok Projects is a registered partnership firm with defendants no.2
and 3 as its partners. It was submitted that under registered
partition deed dated 28.12.1966, different portions of suit schedule
properties were allotted to vendors of defendant no.1.
Subsequently, allottees got their respective portions converted for
non-agricultural purposes. Thereafter, they sold them to defendant
no.1 under registered sale deed dated 18.01.2007.
13. Thereafter, defendant no.1 - firm entered into
unregistered agreement of sale dated 05.05.2007 with plaintiff for
sale consideration of Rs.16,00,000/- per acre which would be sum
of Rs.1,85,00,000/- for entire schedule A to E properties totally
measuring 11 acres 57 cents. It was submitted that possession of
suit schedule properties was delivered to plaintiff on date of
agreement of sale and since then plaintiff was in possession and
enjoyment.
14. It was further submitted that, as per terms of
agreement of sale, it was obligatory on part of defendant no.1 to
obtain permission of use of land for commercial purpose i.e. for
resorts and hotels etc. It was further submitted that defendant no.1
was also required to obtain permission from Sri. K. Sridhar
Bhandary owner of adjacent property, which was situated in
between MUDA road and suit schedule properties for ingress and
egress road to suit schedule properties. But, defendant no.1 failed
to comply with terms it was agreed between parties that, sale
transaction would be completed within three years from date of
obtaining permission as agreed in agreement of sale and plaintiff
was pursuing his interests in suit schedule properties with
defendant no.1.
15. It was submitted that in meanwhile, defendant no.3
despite being an ordinary partner, in collusion with defendant no.5
created false and fraudulent sale deeds dated 18.10.2008, claiming
to have sold portions of suit schedule properties to defendants no.4
to 8 behind back of plaintiff. Therefore, said sale deeds were not
binding on plaintiff. It was submitted that as plaintiff was put in
possession in part performance of agreement of sale, he was
entitled for protection of same. Further, to prevent multiplicity of
proceedings, defendants were required to restrained from alienating
or encumbering suit schedule properties.
16. It was submitted that plaintiff had also filed private
complaint against defendants no.3 to 8 under Section 200 of
Cr.P.C. for offences punishable under Sections 406, 418, 420, 423,
465, 468, 471 and Section 120(B) of IPC. Learned Senior Civil
Judge and CJM, referred complaint to Ullal Police for investigation,
who after registering Crime no.80/2018, conducted investigation
and filed charge-sheet. Presently matter was pending in
CC.no.103/2020.
17. However, without proper consideration of above facts
and circumstances, trial Court under impugned order, not only
vacated interim injunction, but also granted temporary injunction in
favour of defendants even though plaintiff was in possession of suit
schedule properties, which calls for interference in these appeals.
18. It was submitted that defendant no.1 filed written
statement and admitted execution of agreement of sale with
plaintiff on 05.05.2007 and admitted putting plaintiff in possession
of suit schedule properties. Though defendant no.3 denied plaintiff
being in possession, defendants no.4 to 7 failed to file their
separate written statements. They only filed memos adopting
written statement filed by defendant no.3. Thus, they failed even to
assert that their sale deeds were genuine and that they were
bonafide purchasers. On other hand, defendants no.4 to 7 filed IA
no.13 for vacating temporary injunction. It was submitted fact that
plaintiff had paid Rs.11,50,000/- in part performance and obtained
possession of suit schedule properties was required to be taken into
account.
19. It was submitted that even defendant no.1 had filed
O.S.no.20/2021 for relief of declaration that five sale deeds alleged
to be executed by defendant no.3 in favour of defendants no.4 to 8
as void and would not convey any right title or interest in respect of
suit schedule properties.
20. It was submitted even fact that defendant no.3 did not
have any independent right over suit schedule properties and had
sold some of them to defendants no.4 and 7, who were his brothers
was not taken note of. It was lastly submitted that defendants had
undertaken not to alienate any of suit schedule properties during
pendency of suit. In view of said undertaking, vacation of interim
order was not justified.
21. Learned counsel for appellants further submitted that
IAs no.6 to 9 were filed by defendants no.4 to 7 under Order XXXIX
Rule 1(a) of CPC, which as per full Bench decision of this Court in
Shakunthalamma Vs. Kanthamma1, would not be maintainable
and sought to allow appeals on above grounds.
22. On other hand, Sri. Y R Sadasiva Reddy, learned Senior
Counsel appearing for Sri. D. Srinivas Murthy, advocate for
respondents no.4 to 8, submitted that, appeals were not
maintainable either in law or on facts and no grounds were made
out for interference by this Court. It was submitted that, impugned
order on I.As.no.6 to 9 was passed on 04.01.2021. But, appeals
were filed on 11.11.2021, without application for condonation of
delay. It was further submitted that admittedly, both defendants
no.2 and 3 are partners of defendant no.1- registered partnership
Firm. Therefore, both had equal right for alienation of properties
belonging to Firm. It was further submitted that deed of partnership
did not contain any condition restricting or curtailing right of
defendant no.3 for alienation. In any case, agreement of sale
(2015) 2 KLJ 529
executed by plaintiff were unenforceable. It was also contended
that defendants - purchasers were in possession of respective
portions of suit schedule properties, and revenue records were
mutated in their name. However, plaintiff without seeking prayer
for possession from defendants no. 4 to 7, had filed suit which was
not maintainable. As suit was not maintainable, plaintiff was not
entitled for any interim order.
23. It was also submitted that after purchasing suit
schedule properties defendants no.4 to 7 had obtained necessary
permission from concerned authorities. Subsequent to sale deeds in
favour of defendants no.4 to 7, defendant No. 2 in collusion with
plaintiff had created alleged unregistered agreement of sale dated
05.05.2007 frivolous suit was filed. In fact, agreement was not
properly stamped and even after application was filed for
impounding agreement of sale, plaintiff failed to produce original to
protract proceedings. Further, agreement of sale indicates payment
of only Rs.11,50,000/- towards advance sale consideration. Though
plaintiff claimed to have pay further sum of Rs.38,50,000/-,
particulars of said payment were not disclosed. This showed that
agreement of sale was concocted and fabricated document.
Therefore, there was no merit in appeals and sought for dismissal.
24. Heard learned counsel, perused impugned order and
record.
25. From above, only points that arise for consideration
are:
"(i) Whether impugned Order passed by trial
Court allowing I.As.no.6 to 9 filed by
defendants no.4 to 7 respectively under
Order XXXIX Rule 1(a) of CPC calls for
interference?
(ii) Whether impugned order passed by trial
Court allowing I.A.no.13 filed by
defendants no.4 to 7 under Order XXXIX
Rule 4 of CPC calls for interference?
26. From submissions, it is not in dispute that suit schedule
properties were purchased by defendant no.1 - Partnership Firm. It
is also not in dispute that defendants no.2 and 3 were partners of
defendant no.1. While, plaintiff claims that defendant no.1
represented by defendant no.2 had executed agreement of sale
dated 05.05.2007, agreeing to sell entire suit schedule properties in
favour of plaintiff for sale consideration of Rs.16,00,000/- per acre
and after receiving advance sale consideration of Rs.11,50,000/-
and had put plaintiff in possession and agreed to receive balance at
time of execution of registered sale deed after obtaining permission
for usage of suit schedule properties for commercial purpose and
also permission from adjacent land owner Sri.K.Sridhar Bhandary
for access to suit schedule properties; defendants no.3 and 4 to 8
contend that defendant no.3 being partner of defendant no.1 -
Partnership Firm was competent to alienate suit schedule properties
belonging to defendant no.1 - Partnership Firm and as such had
alienated different portions of suit schedule properties to
defendants no.4 to 8 and they were in possession thereof. Their
further case is that agreement of sale was concocted after
execution of registered sale deeds in their favour and suit was false
and frivolous and therefore plaintiff was not entitled for temporary
injunction and defendants no.4 to 7 being in possession were
entitled for protection against interference by plaintiff.
27. While passing impugned order on I.As.no.6 to 9, trial
Court observed that there was no recital in agreement of sale
regarding delivery of possession, but record of rights of suit
properties would prima facie indicated defendants no.4 to 7 being in
possession. Therefore on overall consideration and as defendants
no.4 to 7 were in possession, same was required to be protected,
otherwise, they would suffer grave hardship and injury. On said
observations, it answered prima facie case, balance of convenience
and irreparable loss and injury in favour of defendants no.4 to 7
and proceeded to allow IAs no.6 to 9.
28. At threshold, two main grounds of challenge namely,
whether I.As.no.6 to 9 filed by defendants no.4 to 7 are for relief
under Order XXXIX Rule 1(b) and (c) of CPC and therefore not
maintainable as per Full Bench decision in Shakunthalamma's case.
And secondly, whether appeals filed challenging orders dated
04.01.2021 passed on I.As.no.6 to 9, without filing application for
condonation of delay would be maintainable.
29. Insofar as maintainability of appeals without filing
application for condonation of delay, it is seen that impugned orders
on I.As.no.6 to 9 was passed by trial Court on 04.01.2021 and
appeals there-against are filed 11.11.2021. Though, period of
limitation for filing appeal is 30 days, in view of decision of Hon'ble
Supreme Court in Cognizance for Extension of Limitation, In
re,2 period between 15.03.2020 and 28.02.2022 stands excluded
for purpose of computing limitation. Therefore, appellant would be
entitled for said benefit and appeals would be maintainable.
30. Insofar as maintainability of applications, it is seen that
reliefs sought in IA.sno.6 to 9 are temporary injunction for
protection of peaceful possession and enjoyment of respective
schedule properties of respective defendants. Said prayer does not
prima facie fall within Order XXXIX Rule 1(a). Perusal of averments
in supporting affidavits also does not reveal even bare assertion
that relief is sought to prevent suit schedule properties were in
danger of being wasted, damaged or alienated or wrongfully sold in
execution of decree. Temporary injunction to protect possession
would rather fall under Order XXXIX Rule 1(c). Full Bench of this
Court in Shakunthalamma's case (supra) has held such
application by defendants would not be maintainable unless they
have filed counter claim. Admittedly, none of applicants-defendants
(2022) 3 SCC 117,
have sought counter claim. It is further held that only remedy
available to defendants would be to file separate suit for injunction.
31. In view of above law declared by applications in
I.As.no.6 to 9 filed by defendants no.4 to 7 would not be
maintainable. Point no.1 is therefore answered in affirmative.
32. Insofar as point no.2, indeed, while passing impugned
order on I.A.no.13, trial Court has merely taken note of order dated
04.01.2021 passed on I.As.no.6 to 9 wherein it was held that
defendants no.4 to 7 were in lawful possession and enjoyment of
schedule properties and since said order was not challenged by
plaintiff, it was held that continuation of ad-interim temporary
injunction granted on 11.11.2016 would lead to confusion. Only on
that ground, IA no.13 was allowed and interim order grated on
11.11.2016 was vacated.
33. In view of finding hereinabove, basis of order passed on
I.A.no.13 would be removed. On merits, material aspect namely
plaintiff's claim of being in possession in respect of schedule
properties is on basis of clause no.8 of agreement of sale dated
05.05.2007, which reads as under:
"The vendor hereby undertakes to hand over
possession of schedule property to purchaser if
required at any time for development of land except
for construction of permanent buildings and purchaser
shall not put up any permanent structure on any part
of schedule property until execution of registered
absolute sale deed. Such delivery of possession, as
and when made, shall not be treated as delivery of
possession in part performance of contract without
conveyance. The delivery of possession is only for safe
keeping of property and to prevent trespassers from
trespassing into properties."
34. Therefore, when and for what purposes possession was
delivered would require to be established by plaintiff. even if it is so
proved, whether it would be hit by Sec.17(1-A) of Indian
Registration Act, would also require to be examined.
35. However, it is seen that ex parte ad interim injunction
was granted by trial Court on 11.11.2016. I.A.no.13 for vacation of
interim injunction was filed only by defendants no.4 to 7, that too
only on 25.03.2021, when it was in force for more than four years.
It was further stated at bar that matter was set for trial. Moreover,
defendants no.4 to 7 in their affidavits filed in support of
applications have undertaken not to alienate schedule properties
during pendency of suit. Said undertaking would duly protect
interests of plaintiff.
36. Plaintiff's claim that subsequent to filing of suit, he
submitted original agreement of sale to District Registrar
Mangaluru, got adjudicated proper stamp duty, remitted same on
09.11.2020 and got it released, as well as registration of FIR and
filing of charge sheet against defendants no.3 to 8 for offences in
relation to suit schedule properties would indicate triable case,
would not lend much assistance to plaintiff at this stage.
37. In view of recital in agreement of sale that delivery of
possession was not to be treated as being in part performance of
agreement of sale, whether position of plaintiff would be that of a
licencee also requires to be considered by trial Court after evidence.
Since plaintiff is seeking for declaration of registered sale deeds in
favour of defendants no.4 to 8 as void, and said sale deeds contain
recital about possession being delivered, observations of trial Court
at time of passing impugned order cannot be said to be perverse.
Even no specific condition in Partnership Deed or any provision
barring defendant no.3 as partner from dealing with Partnership
properties was pointed out. Therefore, prima facie, plaintiff failed to
establish possession over suit schedule properties.
38. In view of above discussion, point no.2 is answered in
negative, but with observations as above.
39. In the result, I pass following:
ORDER
MFAs.no.5931/2021, 5933/2021, 5935/2021
and MFA.no.5940/2021 are allowed. Order dated
04.01.2021 passed by trial Court on I.As.no.6 to 9
are set aside and I.As.no.6 to 9 are rejected as not
maintainable.
MFA.no.5939/2021 is dismissed, however by
recording undertaking of defendants no.4 to 7 not to
alienate respective schedule properties during
pendency of suit.
No order as to costs.
Sd/-
JUDGE
GRD/Psg*
