Sri Chandrashekar vs Mr Gorge Albuquerque Pai
2023 Latest Caselaw 4183 Kant

                                               -1-
                                                      NC: 2023:KHC:23735
                                                         RSA No. 1484 of 2014
                                                     C/W RSA No. 1485 of 2014



                         IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                              DATED THIS THE 10TH DAY OF JULY, 2023

                                             BEFORE
                      THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
                         REGULAR SECOND APPEAL NO. 1484 OF 2014 (INJ)
                                               C/W
                       REGULAR SECOND APPEAL NO. 1485 OF 2014(DEC/INJ)


                      RSA No.1484/2014:

                      BETWEEN:

                         SRI CHANDRASHEKAR
                         AGED ABOUT 46 YEARS
                         S/O NARASAPPA POOJARY
                         R/AT KURUVEMAR HOUSE
                         THENKA ULIPADY VILLAGE
                         MALALI POST - 574 151.
                         MANGALORE TALUK, D.K.
                                                              ...APPELLANT
                      (BY SRI RANJAN KUMAR K, ADVOCATE)
Digitally signed by
LAKSHMINARAYANA       AND:
MURTHY RAJASHRI
Location: HIGH
COURT OF                 MR. GORGE ALBUQUERQUE PAI
KARNATAKA
                         AGED ABOUT 62 YEARS
                         S/O LATE CYRIL ALBUQUERQUE
                         R/AT HOIGE BAZAR
                         MANGALORE - 575 001.
                                                                 ...RESPONDENT

(BY SRI SANATH KUMAR SHETTY, ADVOCATE SRI M VISHWAJITH RAI, ADVOCATE)

THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED:26.6.2014 PASSED IN R.A.No.101/2010 ON THE FILE OF THE III ADDL.

NC: 2023:KHC:23735 RSA No. 1484 of 2014 C/W RSA No. 1485 of 2014

SENIOR CIVIL JUDGE & JMFC., MANGALORE, D.K, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 24.6.2010 PASSED IN O.S.No.767/2002 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE & JMFC., MANGALORE, D.K.

RSA No.1485/2014:

BETWEEN:

SRI CHANDRASHEKAR AGED ABOUT 46 YEARS S/O NARASAPPA POOJARY R/AT KURUVEMAR HOUSE THENKA ULIPADY VILLAGE MALALI POST, MANGALORE TALUK D.K. - 574 165.

...APPELLANT

(BY SRI RANJAN KUMAR K, ADVOCATE)

AND:

1 . MR. GEORGE ALBUQUERQE PAI AGED ABOUT 62 YEARS S/O LATE CYRIL ALBUQUERQUE R/AT HOIGE BAZAR MANGALORE - 575 001.

2 . GANESH POOJARY S/O KORAGAPPA POOJARY MAJOR, R/AT KURUVEMER HOUSE NEAR MARUTHI GUDI TENKA ULIPADY P.O MALALI PANCHYATH-574 165 MANGALORE TALUK.

....RESPONDENTS

(BY SRI SANATH KUMAR SHETTY, ADVOCATE FOR SRI M VISHWAJITH RAI, ADVOCATE FOR R1 R2-SERVED)

NC: 2023:KHC:23735 RSA No. 1484 of 2014 C/W RSA No. 1485 of 2014

THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 26.6.2014 PASSED IN R.A.NO.100/2010 ON THE FILE OF THE III ADDLITIONAL SENIOR CIVIL JUDGE & JMFC., MANGALORE, D.K, PARTLY ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 24.6.2010 PASSED IN O.S.No.156/2004 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE & JMFC., MANGALORE, D.K.

THESE APPEALS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

COMMON JUDGMENT

1. The plaintiff in O.S.No.156/2004 has filed a suit against

defendant Nos.1 and 2 for the relief of declaration that he

has got a right to excavate and extract the clay in the suit

schedule property on the basis of the agreement dated

04.07.1996 with one Late Sri.Koragappa Poojary, father of

defendant No.1 and that the sale deed dated 08.10.2001

executed by defendant No.1 in favour of defendant No.2 is

not binding on him and on the suit schedule property. The

plaintiff also sought the relief of injunction against the

defendants from alienating, obstructing and excavating and

extracting clay from the suit schedule property, till the

period of agreement dated 04.07.1986 ie., 50 years. The

plaintiff has also sought the relief of cancellation of the sale

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deed dated 08.10.2001 executed by defendant No.1 in

favour of defendant No.2. The said suit came to be

dismissed by judgment and decree dated 24.06.2010.

Aggrieved by the judgment and decree, the plaintiff filed an

appeal in R.A.No.100/2010 and the same came to be

allowed in part, setting aside the judgment and decree of

the Trial Court and decreeing the suit of the plaintiff in part

holding that the sale deed executed by defendant No.1 in

favour of defendant No.2 is not binding on the right of the

plaintiff and the plaintiff is having right to excavate the clay

from the suit property and restrained defendant No.2 from

causing any obstruction in excavating the clay from the suit

schedule property, till the period of agreement. Aggrieved

by the said judgment and decree of the First Appellate

Court, defendant No.2 has filed R.S.A.No.1485/2004.

2. Defendant No.1 in the said suit namely

Sri.Chandrashekar Poojary had filed a suit in

O.S.No.767/2002 against the plaintiff ie., Mr.George

Albuquerque seeking the relief of injunction restraining him

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from committing trespass or encroaching or causing damage

to the suit schedule property. The suit schedule property

involved in the suits is Sy.No.7/7P1 (part measuring

40 cents) situated in Tenka Ulipady Village of Mangaluru

Taluk. The said suit came to be decreed by the judgment

and decree dated 24.06.2010. Aggrieved by the same, the

defendant of that suit filed R.A.No.101/2010 before the

III Additional Senior Civil Judge and J.M.F.C., Mangaluru.

The said appeal came to be allowed and the judgment and

decree passed by the Trial Court came to be set-aside.

Aggrieved by the judgment and decree passed by the First

Appellate Court, the plaintiff in that suit has filed

R.S.A.No.1484/2014.

3. Heard learned counsel for the appellant and learned

counsel for respondent No.1 in both the appeals on

admission.

4. Since, both the appeals are connected, they have been

taken up together for admission.

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5. The parties will be referred to by their rankings as in

O.S.No.156/2004.

6. Defendant No.2 purchased the suit schedule property

from defendant No.1 by a sale deed dated 08.10.2001

(Ex.P4). The father of defendant No.1 - Sri.Koragappa

Poojary bequeathed the suit property in favour of his son

Sri.Ganesh Poojary (defendant No.1).

7. It is the case of the plaintiff that Sri.Koragappa Poojary

- father of defendant No.1 has executed an agreement

Ex.P4 in favour of the plaintiff to extract the clay from the

suit schedule property for a period of 50 years and that

agreement is executed on 04.07.1996. Defendant No.1 was

a witness to the said agreement dated 04.07.1996. The said

agreement dated 04.07.1996 is an unregistered agreement.

Defendant No.2 - the purchaser of the suit schedule

property disputed the said agreement dated 04.07.1996.

Defendant No.1 who is a witness to the said agreement has

not entered the witness box. Defendant No.2 also did not

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choose to call defendant No.1 as his witness and examined

him.

8. The First Appellate Court has held that as the

residential address of both defendant Nos.1 and 2 is the

same, he is aware of the said agreement dated 04.07.1996.

Defendant Nos.1 and 2 are related to each other. During the

subsistence of the said agreement dated 04.07.1996,

defendant No.1 executed the sale deed dated 08.10.2001 in

favour of defendant No.2. Based on the said sale deed

dated 8.10.2001, defendant No.2 filed a suit in

O.S.No.767/2002 seeking the relief of injunction against the

plaintiff restraining him from interfering with his possession

of the suit schedule property. The First Appellate Court in

both the suits held that since defendant Nos.1 and 2 are

residing in the same address, defendant No.2 - the

purchaser is aware of the agreement dated 04.07.1996 and

inspite of that, he purchased the property by a sale deed

dated 08.10.2001.

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9. As per the agreement dated 04.07.1996, the plaintiff is

having right to extract the clay in the suit schedule property

for a period of 50 years. During the subsistence of the said

agreement, defendant No.1 sold the said property to

defendant No.2. Defendant No.2 acquired the said property

under a sale deed dated 08.10.2001. Even though

defendant No.2 was not aware of the agreement dated

04.07.1996, but as it is executed by his vendor's father

wherein his vendor is one of the signatory, as a witness he is

bound by the said agreement and his purchase is subject to

the right of the plaintiff under the agreement dated

04.07.1996. The said aspect has been provided under the

provisions of Section 48 of the Transfer of Property Act.

Therefore, defendant No.2 cannot seek injunction restraining

the plaintiff from entering the suit schedule property to

exercise his rights under the agreement dated 04.07.1996.

The sale deed dated 08.10.2001 is subject to the right of the

plaintiff under the agreement dated 04.07.1996. Therefore,

to the extent of right of the plaintiff under the agreement

dated 04.07.1996, defendant No.2 has to allow the plaintiff

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to exercise his right as per the agreement dated

04.07.1996. Therefore, the sale deed dated 08.10.2001 is

not binding on the rights of the plaintiff under the

agreement dated 04.07.1996.

10. Considering all these aspects, the First Appellate Court

has rightly dismissed the suit filed for relief of injunction in

O.S.No.767/2002 by setting aside the decree passed by the

Trial Court and rightly decreed the suit in O.S.No.156/2004

setting aside the judgment and decree passed by the Trial

Court.

11. No substantial question of law arises for consideration

in these appeals. Hence, both the appeals are dismissed.

Sd/-

JUDGE

GH