Karnataka High Court
Sri Rebba Narasimhalu vs Sri Iqbal Hussen on 17 November, 2023
Bench: Sachin Shankar Magadum
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.S.A.NO.515 OF 2020
C/W
R.S.A.NO.514 OF 2020
RSA NO.515/2020
BETWEEN:
1. SRI REBBA NARASIMHALU
SON OF NARAYANA
AGED ABOUT 63 YEARS
OCCUPATION AGRICULTURIST
2. SRI.BERE KESHAVA
SON OF SRI.B YAVANA
AGED ABOUT 48 YEARS
OCCUPATION AGRICULTURIST
3. SMT. KANDIKUNTE YESHODA DEVI
WIFE OF KANDIKUNTE VENKATA PRASAD
AGED ABOUT 50 YEARS
OCCUPATION HOUSE WIFE
THE APPELLANTS 1 TO 3 ARE
RESIDING AT NO.25, II CROSS,
NEHARUNAGAR, SHESHADRIPURAM,
BANGALORE-560020.
...APPELLANTS
(BY SRI.S VENUGOPALA, ADVOCATE)
2
AND:
SRI THIRUVENGADAIAH
SON OF SUBBAIAH
SINCE DEAD BY HIS LEGAL REPRESENTATIVE
1. SRI.T.GOPALACHAR
SON OF LATE THIRUVENGADAIAH,
AGED ABOUT 65 YEARS,
RESIDING AT NO.15,
SUBRAMANYAPURA ROAD,
KRISHNAPPA LAYOUT,
UTTARAHALLI, BENGALURU-560061.
SRI. S.NAMALWAR
SON OF SUBBAIAH
SINCE DEAD BY HIS LEGAL HEIRS
2. SMT RAMASANJEEVAMMA
WIFE OF LATE S.NAMALWAR
AGED ABOUT 70 YEARS,
R/AT KADAYERAPANAHALLI VILLAGE,
B.K.HALLI POST, JALA HOBLI,
BENGALURU NORTH TALUK-562149.
3. SMT VIJAYAMMA
WIFE OF ANJANACHAR,
DAUGHTER OF LATE S NAMALWAR,
AGED ABOUT 52 YEARS,
RESIDING AT CHIKKAJALA VILLAGE, JALA HOBLI,
BANGALORE NORTH TALUK-562129.
4. SMT VINODAMMA
WIFE OF KRISHNAMURTHY
DAUGHTER OF LATE S NAMALWAR
AGED ABOUT 50 YEARS
3
5. SMT.GAYATHREE
WIFE OF PADMNABHAIAH AND
DAUGHTER OF LATE S.NAMALWAR,
AGED ABOUT 48 YEARS,
R/AT CHIKKAJALA VILLAGE, JALA HOBLI,
BANGALORE NORTH TALUK - 562129
6. SMT. SAVITHRAMMA
WIFE OF KRISHNAMURTHY
DAUTHER OF LATE S NAMALWAR,
AGED ABOUT 46 YEARS,
RESIDING AT ATTHIGANAHALLI VILLAGE,
SHIDLAGHATTA TALUK
CHIKKABALLAPURA DISTRICT-562105.
7. SMT. PADMA
WIFE OF SRIRANGAM
DAUGHTER OF LATE S NAMALWAR
AGED ABOUT 43 YEARS
8. SMT. JAYASHREE
WIFE OF SRIRAMA AND
DAUGHTER OF LATE S NAMALWAR
AGED ABOUT 42 YEARS
9. SMT VANISHREE
WIFE OF SHESHAPPA
DAUGHTER OF LATE S NAMALAWAR
AGED ABOUT 40 YEARS
RESPONDENTS NO.4,7 TO 9 ARE
RESIDING AT KADAYERRAPANAHALLI VILLAGE,
B.K.HALLI POST, JALA HOBLI,
BANGALORE NORTH TALUK-562129.
10 . SRI IQBAL HUSSEN SON OF YUSUFF
AGED ABOUT 75 YEARS
RESIDING AT DASARA BEEDI,
4
DEVANAHALLI TOWN
DEVANAHALLI TALUK-562110.
...RESPONDENTS
(BY SRI. P.M.NARAYANASWAMY, ADVOCATE FOR R1;
SRI. VENKATESH SOMAREDDI, ADVOCATE FOR R-10;
R3, 4, 5, 6 ARE SERVED & UNREPRESENTED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 23.07.2019 PASSED IN
RA.No.15028/2017 ON THE FILE OF THE V ADDITIONAL DISTRICT
AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT,
DEVANAHALLI, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 05.01.2017 PASSED IN
OS.No.196/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JMFC, DEVANAHALLI.
RSA NO.514/2020
BETWEEN:
1. SRI REBBA NARASIMHALU
SON OF NARAYANA
AGED ABOUT 63 YEARS
OCCUPATION AGRICULTURIST
2. SRI BERE KESHAVA
SON OF SRI B YAVANA
AGED ABOUT 48 YEARS
OCCUPATION AGRICULTURIST
3. SMT KANDIKUNTE YESHODA DEVI
WIFE OF SRI KANDIKUNTE VENKATA PRASAD
AGED ABOUT 50 YEARS
OCCUPATION AGRICULTURIST
THE APPELLANTS 1 TO 3 ARE
RESIDINGAT NO 25, II CROSS,
5
NEHARUNAGAR, SHESHADRIPURAM
BANGALORE - 560020
...APPELLANTS
(BY SRI.S VENUGOPALA, ADVOCATE)
AND:
1. SRI IQBAL HUSSEN
S/O YOUSUFF
AGED ABOUT 73 YEARS
RESIDING AT DASARA BEEDI
DEVANAHALLI TOWN - 562110
BANGALORE DISTRICT
SRI. S.NAMALWAR
SON OF SUBBAIAH
SINCE DEAD BY HIS LEGAL HEIRS
2. SMT RAMASANJEEVAMMA
WIFE OF LATE S.NAMALWAR
AGED ABOUT 70 YEARS,
R/AT KADAYERAPANAHALLI VILLAGE,
B.K.HALLI POST, JALA HOBLI,
BENGALURU NORTH TALUK-562149.
3. SMT VIJAYAMMA
WIFE OF ANJANACHAR,
DAUGHTER OF LATE S NAMALWAR,
AGED ABOUT 52 YEARS,
RESIDING AT CHIKKAJALA VILLAGE, JALA HOBLI,
BANGALORE NORTH TALUK-562129.
4. SMT VINODAMMA
WIFE OF KRISHNAMURTHY
DAUGHTER OF LATE S NAMALWAR
AGED ABOUT 50 YEARS
6
5. SMT.GAYATHREE
WIFE OF PADMNABHAIAH AND
DAUGHTER OF LATE S.NAMALWAR,
AGED ABOUT 48 YEARS,
R/AT CHIKKAJALA VILLAGE, JALA HOBLI,
BANGALORE NORTH TALUK - 562129
6. SMT. SAVITHRAMMA
WIFE OF KRISHNAMURTHY
DAUTHER OF LATE S NAMALWAR,
AGED ABOUT 46 YEARS,
RESIDING AT ATTHIGANAHALLI VILLAGE,
SHIDLAGHATTA TALUK
CHIKKABALLAPURA DISTRICT-562105.
7. SMT. PADMA
WIFE OF SRIRANGAM
DAUGHTER OF LATE S NAMALWAR
AGED ABOUT 43 YEARS
8. SMT. JAYASHREE
WIFE OF SRIRAMA AND DAUGHTER OF LATE S NAMALWAR
AGED ABOUT 40 YEARS
9. SMT VANISHREE
WIFE OF SHESHAPPA
DAUGHTER OF LATE S NAMALAWAR
AGED ABOUT 40 YEARS
RESPONDENTS NO.2 TO 9 ARE
RESIDING AT KADAYERRAPANAHALLI VILLAGE,
B.K.HALLI POST, JALA HOBLI,
BANGALORE NORTH TALUK-562129.
...RESPONDENTS
(BY SMT. RACHITHA RAJSHEKAR, ADVOCATE FOR R-1;
7
SRI MITHUN G.A., ADVOCATE FOR R2 TO R5, R7 TO R9;
R6 SERVED & UNREPRESENTED)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 23.07.2019 PASSED IN RA.NO.
15034/2017 ON THE FILE OF THE V ADDITIONAL DISTRICT AND
SESSIONS JUDGE BENGALURU RURAL DISTRICT, DEVANAHALLI,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND
DECREE DATED 05.01.2017 PASSED IN EX.NO.19/2006 ON THE
FILE OF THE SENIOR CIVIL JUDGE AND JMFC., DEVANAHALLI THE
DECREE HOLDER IN EXECUTION NO.19/2006 IS AT LIBERTY TO
TAKE STEPS AGAINST THE JUDGMENT DEBTOR.
THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 16.11.2023, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT MADE THE FOLLOWING:
JUDGMENT
These two captioned appeals are filed by plaintiffs in
O.S.No.196/2008 assailing the concurrent judgments rendered
by both the Courts below wherein plaintiffs' suit seeking
injunction is dismissed and at the same time, plaintiffs third
party application filed under Order XXI Rule 97 of CPC filed in
Ex.No.19/2006 is rejected reserving liberty to the defendant
No.3 in O.S.No.196/2008 and decree holder in Ex.No.19/2006
to proceed with the execution petition.
2. For the sake of brevity, the rank of the parties are
referred to as per their in O.S.No.196/2008.
3. The subject matter of the suit is Sy.No.2 measuring
2 acres 34 1/2 guntas. The defendant No.3 who is the decree
holder filed a suit for specific performance of contract in
O.S.No.83/1995 based on an agreement executed by the
defendant No.2 on 29.07.1992. The suit filed by the
defendant No.3 in O.S.No.83/1995 was decreed thereby
granting decree for specific performance. The original
defendant No.1 and defendant No.2 are full brothers. The
original defendant No.1 namely Thiruvengadaiah filed a suit
for partition in O.S.No.274/1992 by contending that he has
half share in the suit schedule property. The partition suit
filed by the defendant No.1 against the defendant No.2 was
decreed granting half share. The defendant No.3 who had the
benefit of a decree for specific performance in O.S.No.83/1995
challenged the preliminary decree passed in partition suit in
O.S.No.274/1992 by filing a suit in O.S.No.307/1995. The
defendant No.3 sought for cancellation of the judgment and
decree passed in O.S.No.274/1992 instituted by the defendant
No.1. The suit filed by the defendant No.3 in
O.S.No.307/1995 was decreed and the preliminary decree
drawn in O.S.No.274/1992 was set aside vide judgment and
decree dated 08.10.2002. The defendant No.3 in order to
execute the decree for specific performance passed in
O.S.No.83/1995 filed execution petition in Ex.No.124/2004
which was renumbered as Ex.No.19/2006. The defendant
No.1 who has suffered a decree in O.S.No.307/1995 sold the
present suit land in favour of the plaintiffs under registered
sale deed dated 29.07.2004. The plaintiffs in
O.S.No.196/2008 filed a third party application under Order
XXI Rule 97 of CPC and simultaneously instituted a suit in
O.S.No.196/2008 seeking declaration and cancellation of
judgment and decree rendered in a suit for specific
performance in O.S.No.83/1995, O.S.No.307/1995 and
O.S.No.274/1992.
4. The plaintiffs and the defendant No.3/decree holder
have let in oral and documentary evidence. The trial Court
having examined the oral and documentary evidence let in by
the parties answered issue No.1 and issue Nos.3 to 6 in the
negative, while issue Nos.2 and 7 were answered in the
affirmative and in favour of the defendant No.3. While
answering issue No.1 in the negative, trial Court held that
plaintiffs who are tracing right and title under defendant No.1
have failed to substantiate the title of defendant No.1 to an
extent of half share in Sy.No.2. While answering issue No.7 in
the affirmative, trial Court held that defendant No.3 has
succeeded in establishing that defendant No.2 is the absolute
owner of entire extent measuring 5 acres 29 guntas in
Sy.No.2.
5. Feeling aggrieved by the judgment and decree of
the trial Court, the plaintiffs preferred two appeals in
R.A.Nos.15028/2017 and 15034/2017. R.A.No.15028/2017
was filed questioning the judgment and decree passed in
O.S.No.196/2008, while R.A.No.15034/2017 is filed assailing
the order passed on an third party application filed in
Ex.No.19/2006. The appellate Court as a final fact finding
authority has independently assessed the entire evidence on
record. The appellate Court on reassessing the entire material
on record held that defendant No.2 is the absolute owner of
the suit schedule property. The appellate Court while
concurring with the reasons and conclusions recorded by the
trial Court also held that rebuttal evidence let in by defendant
No.3/decree holder clearly demonstrates that Land Tribunal
has granted occupancy rights to defendant No.2 and there is
no evidence let in by the plaintiffs to substantiate that
defendant No.1 who is the plaintiffs' vendor had half share in
Sy.No.2 measuring 5 acres 29 guntas which is the subject
matter of the present suit and execution proceedings.
Consequently, appeal is dismissed. These concurrent
judgments are under challenge at the instance of the plaintiffs.
6. Heard learned counsel appearing for the plaintiffs
and learned Senior Counsel appearing for the defendant
No.3/decree holder. Perused the concurrent findings recorded
by the Courts below.
7. Paras 7 and 9 of the plaint would be relevant to
examine the theory of fraud and collusion set up by the
plaintiffs in the present suit. The same are culled out which
reads as under:
"7. It is respectfully submitted that the defendants 1 to
3 colluded together and filed the suit O.S No.307/1995
and got the same decreed on 8.10.2002 canceling the
decree for partition of 5 Acres 29 guntas of land situated
in survey No.2 of Rayasandra Village, between the 1st
and 2nd defendants. It is respectfully submitted that the
signature of the 1st defendant late Thiruvengadaiah in
the Written statement, Vokalath and other papers alleged
to have filed in the Suit O.S.No.307/1995 on behalf of
the said Thiruvengadaiah seems to be
tampered/fabricated and the difference with the admitted
signature can be made out from the bare eyes.
Obviously, the 3rd defendant obtained the judgment and
decree in the cases O.S.83/1995 and O.S No.307/1995
fraudulently within such a short period.
9. The plaintiffs are bonafide purchasers for valid
consideration without notice of the fraudulent
transactions engineered by the 3rd defendant in collusion
with the defendants 1 and 2 in respect of the schedule
property. In pursuance of the sale deed dated
29.07.2004 the plaintiffs have been put in actual
possession of the schedule property and the katha and
pahani are also transferred in their favour. Hence it is
necessary in the interest of justice to set aside the
Judgment and Decree passed on 21.04.1995 in O.S
No.83/1995 against the 2nd defendant which decree is
not binding on the 1st defendant who had absolute
powers in the half share, that is, schedule property which
has been sold by him to the plaintiffs. The decree dated
8.10.2002 passed in O.S.No.307/1995 against the
defendants 1 and 2 does in any way affect the right, title
and interest in the half share of the 1st defendant from
whom the plaintiff have purchased the schedule property
constituting half share of the 1st defendant. However, it
is also necessary to set aside the said decree dated
8.10.2002 passed in O.S.No.307/95 on the file of the
Civil Judge, Senior Division, Bangalore District,
Bangalore."
8. On reading paras 7 and 9 of the plaint which is
culled out supra, the plaintiffs case is that in order to defraud
the present plaintiffs, defendant Nos.1 to 3 have colluded
together and filed suit in O.S.No.307/1995 and the same is
decreed on 08.10.2002 and the preliminary decree passed in a
partition suit bearing O.S.No.274/1992 is set aside. It is not
in dispute that defendant No.1 having suffered a decree in
O.S.No.307/1995 which is dated 08.10.2002, suppressing the
decree in the above said suit alienated the suit land in favour
of the plaintiffs under registered sale deed dated 29.07.2004.
9. If these significant details are looked into, this
Court is unable to understand as to how plaintiffs can plead
the theory of collusion between defendant Nos.1 to 3 when
they have purchased the suit land after passing of decree in
O.S.No.307/1995. The defendant No.3 based on decree
passed in a suit for specific performance challenged the decree
passed in partition suit bearing O.S.No.274/1992 in
O.S.No.307/1995. O.S.No.307/1995 is filed in 1995 and the
said suit is decreed on 08.10.2002. As on 08.10.2002, the
plaintiffs herein were not at all in picture. If defendant No.1
having suffered a decree in O.S.No.307/1995 had no saleable
right in the suit land, the plaintiffs cannot plead collusion
between defendant No.3 and defendant No.1. At the most,
the plaintiffs can hold grievance against defendant No.1 for
having suppressed the decree passed in O.S.No.307/1995.
The defendant No.1 has sold the suit land in favour of the
plaintiffs in 2004, while the suit filed by defendant No.3 in
O.S.No.307/1995 was decreed in 2002 and the preliminary
decree granting half share to defendant No.1 in
O.S.No.274/1992 was set aside.
10. Therefore, it is clearly evident that as on the date
of execution of sale deed by defendant No.1 in favour of
plaintiffs, defendant No.1 had no saleable title which he could
have conveyed in favour of plaintiffs. If defendant No.1 had
suffered a decree in O.S.No.307/1995, the plaintiffs have no
locus to question the decree passed in O.S.No.307/1995 and
decree passed in a suit for specific performance in
O.S.No.83/1995. It is clearly evident that alienation by
defendant No.1 in favour of plaintiffs was pending
consideration of execution proceedings in Ex.No.124/2004
which is renumbered as Ex.No.19/2006. The relief sought by
the plaintiffs cannot be entertained. The defendant No.1
having suffered a decree in O.S.No.307/1995 could not have
conveyed any right and title in the suit land. Therefore, both
the Courts were justified in dismissing the suit filed by the
plaintiffs in O.S.No.196/2008.
11. Insofar as third party application filed by the
plaintiffs in Ex.No.19/2006 is concerned, both the Courts were
justified in not entertaining the application under Order XXI
Rule 97. The plaintiffs are tracing their right through
defendant No.1 who has suffered a decree in
O.S.No.307/1995. The preliminary decree passed in favour of
defendant No.1 in a partition suit bearing O.S.No.274/1992 is
set aside in O.S.No.307/1995. It is trite law that a third party
applicant who resists the execution proceedings under Order
XXI Rule 97 has to demonstrate that he has a better title than
that of a decree holder. Admittedly, plaintiffs/third party
applicants are tracing their right under defendant No.1 who
has suffered a decree in O.S.No.307/1995. Therefore, I am of
the view that both the Courts were justified in not entertaining
the application under Order XXI Rule 97 of CPC.
12. No substantial question of law arises for
consideration. The appeals being devoid of merits stand
dismissed accordingly.
The pending interlocutory application, if any, does not
survive for consideration and stands disposed of.
Sd/-
JUDGE
CA
