Sri C.M Jayaraj vs M/S. Golden Gate Projects
2023 Latest Caselaw 6503 Kant

                            1
                                        RFA NO.1273/2015

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 13TH DAY OF SEPTEMBER, 2023

                        PRESENT

  THE HON'BLE MR. JUSTICE P. S.DINE SH KUM AR

                          AND

THE HON'BLE MR. JUSTICE T.G.SHIVASHANKARE GOWDA

              RFA NO.1273 OF 2015 (RES)

BETWEEN:

SRI C.M JAYARAJ
AGED ABOUT 44 YEARS
S/O LATE C T MOODALAGIRIYAPPA
R/AT NO.16/7, FIRST FLOOR
5TH CROSS, WILSON GARDEN
BENGALURU 560 027
NOW RESIDING AT NO.61
RESERVOIR STREET
BASAVANAGUDI
BENGALURU 560 004                        ... APPELLANT

(BY SRI. V. B. SHIVAKUMAR, ADV.)

AND:

1.     M/S. GOLDEN GATE PROJECTS
       A PARTNERSHIP FIRM UNDER THE
       INDIAN PARTNERSHIP ACT
       HAVING ITS REGISTERED OFFICE
       AT NO.96, 1ST FLOOR
       KORAMANGALA EXTENSION
       BENGALURU 560 034
       REP. BT ITS GENERAL POWER OF
       ATTORNEY HOLDER
       SRI C D SANJAY RAJ

2.     SMT NANJAMMA
       AGED ABOUT 95 YEARS
       W/O DONNIAPPA @ DONNEGAPPA
                           2
                                         RFA NO.1273/2015

     R/AT NO.20, KASAVANAHALLI VILLAGE
     VARTHUR HOBLI, BENGALURU
     SOUTH TALUK, BENGALURU 560 087

3.   SMT YELLAMMA
     AGED ABOUT 64 YEARS
     W/O M MUNINAGAPPA
     R/@ NO.216, JIGANI
     ANEKAL TALUK
     BENGALURU DIST 562 106

4.   SRI RAJAPPA
     AGED ABOUT 42 YEARS
     S/O MUNINAGAPPA
     R/@ NO.216, JIGANI
     ANEKAL TALUK
     BENGALURU DIST 562 106

5.   SMT MUNIRATHNAMMA
     AGED ABOUT 36 YEARS
     W/O SHIVASHANKAR
     R/@ NO.216, JIGANI
     ANEKAL TALUK
     BENGALURU DIST 562 106

6.   SRI RAJENDRA KUMAR
     AGED ABOUT 33 YEARS
     S/O LATE MUNINAGAPPA
     R/@ NO.20, KASAVANAHALLI
     VILLAGE, VARTHUR HOBLI
     BENGALURU NORTH
     TALUK 560 087

7.   SRI K M CHANDRA KUMAR
     AGED ABOUT 31 YEARS
     S/O LATE MUNINAGAPPA
     R/@ NO.20
     KASAVANAHALLI VILLAGE
     VARTHUR HOBLI
     BENGALURU NORTH
     TALUK 560 087                   ... RESPONDENTS

(BY SRI. MOHAMMED NASIRUDDIN, ADV. FOR R1;
    R2, R3, R5, R6 & R7 ARE SERVED;
    VIDE ORDER DATED 03.03.2016
    NOTICE TO R4 IS DULY SERVED
    BY WAY OF PAPER PUBLICATION)
                                 3
                                                   RFA NO.1273/2015

     THIS RFA IS FILED UNDER SECTION 96(1) OF CPC., 1908
AGAINST THE JUDGMENT AND DECREE DATED 25.07.2013
PASSED IN O.S.NO.15792/2006 ON THE FILE OF THE XXVIII
ADDL.CITY CIVIL JUDGE AT MAYOHALL UNIT, BANGALORE,
DECREEING THE SUIT FOR MANDATORY INJUNCTION.

     THIS RFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT   ON   22.08.2023   AND     COMING    ON FOR
PRONOUNCEMENT      OF      JUDGMENT       THIS    DAY,
T.G.SHIVASHANKARE     GOWDA      J.,   DELIVERED   THE
FOLLOWING:

                        JUDGMENT

In this appeal, defendant No.7 has challenged the

judgment and decree dated 25.07.2013 passed by the

XXVIII Additional City Civil Judge, Mayohall Unit,

Bangalore (CCH-29) (for brevity 'the Trial Court') in

O.S.No.15792/2006.

2. For the sake of convenience, parties shall be

referred as per their status before the Trial Court.

3. Brief facts of plaintiff's case are, first

defendant is the owner of residentially converted land

bearing Sy.No.29/6 measuring 1 acre 5 guntas situated

at Kasavanahalli village, Varthur Hobli, Bangalore South

Taluk (for short 'suit schedule property') having acquired

the same through registered sale deed dated

RFA NO.1273/2015

17.05.1972. She has sold the said property in favour of

K.E.B.Employees' Co-operative Society Limited (for short

'the Society'). The Chairman of the said Society applied

for conversion of the said land and by order dated

04.08.1992, it was converted for residential purpose.

Defendant No.1 has executed an agreement of sale on

22.10.1992 by receiving the entire sale consideration

along with interest and also executed a General Power of

Attorney on the same day. The GPA Holder has sold the

suit schedule property in favour of the plaintiff through

the registered sale deed dated 28.05.2002 and put the

plaintiff in possession of the property. In panchayat

records, name of the plaintiff is recorded as owner and

the possessor. On 01.03.2006, defendant No.7

attempted to interfere with plaintiff's possession in the

suit schedule property. On verification, plaintiff came to

know that defendant Nos.1 to 6 without having any

right, title or interest over the suit schedule property

have executed the sale deed in favour of defendant No.7

on 20.01.2005. The said sale deed is null and void and

RFA NO.1273/2015

liable to be cancelled. Accordingly, the plaintiff has filed

the instant suit seeking cancellation of sale deed dated

20.01.2005 executed by defendant Nos.1 to 6 in favour

of defendant No.7 and for a direction to the

Sub-Registrar to remove the encumbrance by declaring

that the plaintiff is the absolute owner and for

consequential relief of permanent injunction.

4. Defendant Nos.1 to 4 and 6 though were

served with suit summons, have remained exparte.

Defendant No.5 has entered appearance through his

Advocate, but has not contested the suit.

5. Defendant No.7 alone contested the suit by

filing written statement contending interalia that the

plaintiff is a registered partnership concern, it cannot be

represented by a Power of Attorney holder, suit filed by

the Power of Attorney is bad in law. The Society from

whom the plaintiff is said to have acquired the title is a

necessary party and the suit is bad for non-joinder of

necessary parties. It is also contended that the suit is

RFA NO.1273/2015

barred by time. It is the further case of defendant No.7

that before purchasing the property, he has verified the

documents and after satisfying himself with the flow of

title to defendant No.1 has purchased the property and

he has been put in possession of the property under the

sale deed dated 20.01.2005. The mutation has also

been effected in his name and thereby he is the absolute

owner in possession of the property.

5.1. It is also contended that though plaintiff

claims to have acquired the property through General

Power of Attorney, he never acquired title or possession

over the suit schedule property. The suit schedule

property is an agricultural land and plaintiff did not

acquire any right, title or interest. With these among

other pleadings sought for dismissal of the suit.

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

Court has framed the following issues and additional

issues:

RFA NO.1273/2015

1) Whether the plaintiff proves that he has the absolute owner in possession of the suit properties on the date of suit?

2) Whether the plaintiff is entitle for permanent injunction?

3) Whether the suit is bad for non-joinder of necessary parties?

4) Whether suit is valued properly and court fee paid is sufficient?

5) What order or decree?

Additional Issues:

1) Whether the plaintiff proves that the sale deed dated 20.01.2005 is liable to be cancelled?

2) Whether the plaintiff is entitled for mandatory injunction?

7. Before the Trial Court, on behalf of the

plaintiff, one witness is examined as PW-1 and 12

documents marked as Exs.P1 to P12. As defendant No.7

has not cross-examined the plaintiff nor led any

evidence, the Trial Court after hearing the arguments of

the plaintiff's side recorded its finding in respect of issue

Nos.1, 2 and 4 and additional issue Nos.1 and 2 in the

affirmative and issue No.3 in the negative and decreed

RFA NO.1273/2015

the suit declaring that the plaintiff is the absolute owner

of the suit schedule property by cancelling the sale deed

dated 20.01.2005 executed by defendant Nos.1 to 6 in

favour of defendant No.7 with a direction to the

concerned Sub-Registrar to make necessary entry of

cancellation in register No.1 and granting permanent

injunction against the defendants restraining them from

interfering with the plaintiff's possession and enjoyment

of the suit schedule property. Aggrieved by the same,

defendant No.7 has filed this appeal on various grounds.

     8.    We     have    heard     the    arguments       of

Sri.V.B.Shivakumar,      learned    Counsel       for     the

appellant/defendant No.7 and Sri.Mohammed Nasiruddin,

learned Counsel for respondent No.1/plaintiff.

9. Following are the contentions of the learned

counsel for defendant No.7:

(i) Defendant No.7 is in possession and enjoyment

of the suit schedule property; suit filed by the plaintiff

RFA NO.1273/2015

without seeking possession of the property is not

maintainable;

(ii) Defendant No.7 has acquired the property from

defendant Nos.1 to 6 in the year 2005 and thereby

acquired the possession of the suit schedule property;

(iii) Initially, the suit was dismissed by order dated

08.09.2010; seeking restoration of the suit, the plaintiff

has filed Misc.Petition No.25153/2010. There was no

notice to the defendants, but it was incorrectly held that

the notice was served and the defendants were placed

exparte. Misc.Petition came to be allowed and suit was

restored by order dated 31.08.2012. After restoration

of the suit, there was no notice to defendant No.7,

without giving opportunity, the Trial Court by taking the

evidence of the Power of Attorney Holder of the plaintiff

without considering the case on merits has erroneously

decreed the suit;

(iv) In view of non-service of notice either of the

miscellaneous petition or of the court notice after

restoration of the suit, defendant No.7 has to be

RFA NO.1273/2015

provided with an opportunity to contest the case and

sought for remand.

10 Per contra, learned counsel for the plaintiff

has urged the following grounds:

(i) the plaintiff is in possession of the suit schedule

property; the claim of defendant No.7 that he is in

possession of the suit property is incorrect;

(ii) the plaintiff has purchased the property from

the original owner in the year 2002 and all the

documents are in the name of the plaintiff;

(iii) Defendant No.7 is said to have purchased the

property in the year 2005. When the vendor of the

plaintiff had already transferred the title in favour of the

plaintiff, he had no right to execute the sale deed in

favour of defendant No.7;

(iv) there was service of notice in Misc.Petition and

defendant No.7 was placed exparte.

(v) On 31.08.2012, suit was restored and

thereafter defendant No.7 did not appear. Therefore,

RFA NO.1273/2015

the Trial Court has recorded the evidence and

ultimately, rightly decreed the suit;

(vi) Defendant No.7 has not availed the

opportunity given by the Court and he has no title to the

property as the sale deed is obtained subsequent to the

sale in favour of the plaintiff;

(vii) The suit schedule property originally belonged

to one Nanjamma and it is her self-acquired property.

She has executed General Power of Attorney in favour of

the Society and from the said Society, the plaintiff

claims to have acquired the property;

(viii) Under Section 48 of the Transfer of Property

Act, Nanjamma had no right to execute any sale deed in

favour of defendant No.7 in the year 2005. Therefore,

the decree in favour of the plaintiff is just and proper;

(ix) As defendant No.7 has not utilized the given

opportunity, he has no right to seek for remand since

the suit is of the year 2006 and the appeal is eight years

old and sought for dismissal of the appeal.

RFA NO.1273/2015

11. We have given our anxious consideration to

the arguments addressed on behalf of both parties and

perused the records.

12. The undisputed facts are, the plaintiff has

filed the suit against the defendants seeking declaration

of title, permanent injunction, so also, cancellation of

sale deed executed by defendant Nos.1 to 6 in favour of

defendant No.7. Before the Trial Court, defendant Nos.1

to 4 and 6 though served with summons have remained

exparte. Defendant No.5 appeared through his

advocate but did not contest the suit. It is defendant

No.7, who alone contested the suit by filing written

statement. After framing of the issues, the case was

posted for evidence of the plaintiff. As the plaintiff

remained absent and there was no representation on

behalf of the plaintiff, the suit was dismissed for

non-prosecution on 08.09.2010.

13. Thereafter the plaintiff filed a petition under

Order IX Rule 4 of CPC numbered in Misc.Petition

RFA NO.1273/2015

No.25153/2010. In the said proceedings, notice was

issued to the defendants. Copy of the order sheet in the

miscellaneous proceedings is made available along with

appeal papers. It shows that notice to defendants was

not served as the address was not found. Along with

appeal memo, defendant No.7 has produced the copy of

the notice issued in miscellaneous petition wherein the

process endorsement points out that defendant No.7

was not traced in the given address. The matter was

posted for taking steps and thereafter steps were taken,

notice was issued to the respondents. The note made in

the order sheet dated 07.01.2012 shows that notices to

defendant Nos.2 to 7 were held sufficient and they were

placed exparte. Notice to defendant No.1 was returned.

Without completion of service of process, the petition

was posted for evidence of the petitioner. After

examining the petitioner, by order dated 31.08.2012,

the miscellaneous petition came to be allowed and the

suit was restored to its file. Thereafter the

RFA NO.1273/2015

miscellaneous proceedings came to be closed and suit

was taken up to the stage of evidence.

14. As it is clear from the records, in the

miscellaneous proceedings, the respondents were not

represented. Process endorsement shows that

respondent Nos.1 to 7 were not residing in the given

address. In the miscellaneous proceedings, on

07.01.2012, the Trial Court has recorded that notice was

served and the respondents were placed exparte. In the

miscellaneous proceedings, on 20.09.2012, the records

in O.S.No.15792/2006 were put up. Thereafter the

matter was called on 31.10.2012. On that day, the

Presiding Officer was on leave and the matter was

adjourned to 02.11.2012. The miscellaneous petition

came to be closed and the original suit proceeded

further. On 02.11.2012, the Trial Court has noted the

presence of the Advocate for the plaintiff and directly

posted the case for evidence to 11.01.2013. There is no

notice ordered to the defendants; defendant Nos.5 and

7 were represented by their Advocates in the suit before

RFA NO.1273/2015

dismissal and defendant No.7 was the contesting party.

Therefore, in our view, notice ought to have been issued

to the defendants after restoration of the suit.

15. Both the plaintiff and defendant No.7 are

claiming title and therefore, the Trial Court is required to

record a finding on each of the issues and to decide the

case on merits. But in this case, when defendant No.7

had no notice of the restoration of the suit, there was no

occasion for him to appear and cross-examine the

plaintiff and lead his evidence. Hence, the impugned

judgment is one-sided and is passed behind the back of

defendant No.7. Therefore, we refrain ourselves from

considering the merit of the case in the absence of

complete evidence. We deem it appropriate that an

opportunity must be provided to the defendant No.7 to

defend his case, otherwise it will be a miscarriage of

justice. For the conduct of defendant No.7 in not

appearing in the miscellaneous proceedings and in not

watching the proceedings diligently, he has to

compensate the plaintiff adequately. Hence, in the facts

RFA NO.1273/2015

and circumstances of the case, imposing cost of

Rs.50,000/- is adequate. Therefore, we are of the

considered opinion that the suit deserves to be restored

to the file of Trial Court for fresh adjudication on merits

in accordance with law.

16. In the result, the following:

ORDER

(i) Appeal is allowed.

(ii) The impugned judgment and decree is set aside.

(iii) Suit in O.S.No.15792/2006 is restored to the file of

XXVIII Additional City Civil Judge, Mayohall Unit,

Bangalore (CCCH-29) to the stage of evidence,

with a direction to dispose of the suit in accordance

with law as expeditiously as possible within an

outer limit of six months from the date of receipt of

certified copy of this order, subject to appellant

paying cost of Rs.50,000/- to the respondent on

the first day of appearance;

(iv) Parties are directed to appear before the Trial Court

without notice on 25.09.2023.

RFA NO.1273/2015

(v) Registry shall refund the court fee in accordance

with law.

SD/-

JUDGE

SD/-

JUDGE

KNM/-

CT:HS