Karnataka High Court
Sri M S Ramaswamy Iyengar vs Sri T Srinivas Since Dead By Lrs Smt ... on 6 August, 2024
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NC: 2024:KHC:31231
RSA No. 1221 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 1221 OF 2022 (DEC)
BETWEEN:
SRI M.S. RAMASWAMY IYENGAR,
S/O LATE SRI .SRINIVAS IYENGAR,
AGED 89 YEARS,
R/AT NO.112, 29TH CROSS,
2ND STAGE, BANASHANKARI,
BANGALORE - 566 070.
...APPELLANT
(BY SRI. ASHWIN KUMAR M.S., ADVOCATE)
AND:
1. SRI T SRINIVAS SINCE DEAD BY LRS SMT RENUKA
W/O LATE SRI.T.SRINIVAS,
AGED 67 YEARS,
Digitally signed by 2. SRI.S.KUMARA
ARUNKUMAR M S
Location: High S/O LATE SRI.T.SRINIVAS,
Court of Karnataka AGED 50 YEARS,
3. SRI.S.BASAVARAJU
S/O LATE SRI.T.SRINIVAS,
AGED 46 YEARS,
4. SRI.S.MAHESH
S/O LATE SRI.T.SRINIVAS,
AGED 45 YEARS,
5. SMT.S. GAYITHRI
D/O LATE SRI .T.SRINIVAS,
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RSA No. 1221 of 2022
AGED 48 YEARS,
R1 TO R5 ARE R/AT NO.196/1, 5TH CROSS,
J.C.NAGARA, MYSURU. 570010
6. SMT. BILAL BI,
W/O LATE SABU LAL,
AGED 86 YEARS,
R/AT NO.3317, 3RD CROSS, 7TH MAIN,
SARVAJANIKA HOSPITAL ROAD,
VIDYARANYA PURAM, KILLE MOHALLA,
MYSURU.
7. SMT. NAZEEM BEGAUM,
AGED 47 YEARS,
D/O BILAL BI,
R/AT NO.3317, 3RD CROSS, 7TH MAIN,
SARVAJANIKA HOSPITAL ROAD,
VIDYARANYA PURAM, KILLE MOHALLA,
MYSURU.
8. SMT.SAHIBA BEGAM,
AGED 41 YEARS,
D/O BILAL BI
R/AT NO.3317, 3RD CROSS, 7TH MAIN,
SARVAJANIKA HOSPITAL ROAD,
VIDYARANYA PURAM, KILLE MOHALLA,
MYSURU.
9. SMT.SHIREEN TAJ,
AGED 44 YEARS,
D/O BILAL BI,
R/AT NO.3317, 3RD CROSS, 7TH MAIN,
SARVAJANIKA HOSPITAL ROAD,
VIDYARANYA PURAM, KILLE MOHALLA,
MYSURU.
...RESPONDENTS
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RSA No. 1221 of 2022
(BY SRI. B.K. MOHAN, ADVOCATE FOR R1(A-E);
SRI. N. NANJUNDA SWAMY, ADVOCATE FOR R3-R5;
R2 - DECEASED AS PER POSTAL SHARA)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 14.06.2022 PASSED IN
RA NO.55/2020 ON THE FILE OF THE II ADDITIONAL DISTRICT
AND SESSIONS JUDGE, MYSURU, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DATED
23.10.2018 PASSED IN OS NO.1265/2013 ON THE FILE OF THE
C/C I ADDITIONAL I CIVIL JUDGE AND JMFC, MYSURU.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH
ORAL JUDGMENT
This appeal is preferred by the plaintiff, challenging the
judgment and decree dated 14.06.2022 in R.A.No.55/2022 on
the file of the II Additional District & Sessions Judge, Mysuru,
setting aside the judgment and decree dated 23.10.2018 in
O.S. No.1265/2013 on the file of the I Additional I Civil Judge &
JMFC, Mysuru, decreeing the suit of the plaintiff.
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2. Relevant facts of adjudication for the case as
averred in the plaint are that, defendant Nos.2 to 5 are the
owners of the suit schedule property and as such, the plaintiff
and defendants entered into an Agreement of Sale dated
02.12.1999, to sell the suit schedule property. It is also stated
by the plaintiff that, the defendants have executed the
unregistered Power of Attorney in favour of the plaintiff to deal
with the suit schedule property and in addition to the same,
defendant No.2 has executed the Will dated 25.05.2007 in
favour of the plaintiff. It is further stated by the plaintiff that,
on 05.07.2007, defendants have executed registered Power of
Attorney in favour of the plaintiff and as such, defendant Nos.2
to 5 have received the total consideration amount of
Rs.3,60,000/- from the plaintiff to sell the suit schedule
property. It is further stated in the plaint that, the plaintiff
visited the suit schedule property during in the year 2013, and
thereafter, he came to know that the suit schedule property
has been sold by defendant Nos.2 to 5 in favour of defendant
No.1 as per the registered Sale Deed dated 03.08.2013.
Hence, the plaintiff has filed the suit seeking for relief of
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declaration, specific performance contract and permanent
injunction against the defendants.
3. On service of notice, the defendants entered
appearance and defendant No.1 filed the written statement
denying the averments made in the plaint and contended that,
defendant No.1 has purchased the suit schedule property for
valuable consideration and revenue records stands in his name
and accordingly, the sought for dismissal of the suit.
4. The trial Court based on the pleadings on record
framed the issues for its consideration and thereafter, recasted
the issues accordingly.
5. In order to establish their case, the plaintiff has
examined 3 witnesses as PW-1 to PW-3 and got marked 29
documents as Ex.P-1 to Ex.P-29. Defendants have examined 3
witnesses as DW-1 to DW-3 and produced 8 documents and the
same were marked as Ex.D-1 to D-8.
6. The trial Court, after considering the material on
record, by the judgment and decree dated 23.10.2018, decreed
the suit in part and directed defendant Nos.2 to 5 to execute
the Sale Deed in favour of the plaintiff or his representatives.
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Feeling aggrieved by the judgment and decree passed by the
trial Court, defendant No.1 has filed R.A. No.55/2020, and
defendant Nos.3 to 5 have preferred the R.A. No.306/2020.
Respondents before the First Appellate Court resisted the
appeal. The First Appellate Court, after considering the
material on record, by its judgment and decree dated
14.06.2022, allowed the appeal in R.A. No.55/2020 filed by
defendant No.1 and dismissed the appeal preferred by
defendant Nos.3 to 5 in R.A. No.306/2020 and as such, set
aside the judgment and decree dated 23.10.2018 in O.S.
No.1265/2013.
7. Feeling aggrieved by the judgment and decree
passed by the First Appellate Court, the plaintiff/appellant has
preferred this appeal.
8. Heard Sri. Ashwin Kumar M.S., learned counsel
appearing for the appellant, Sri. N. Nanjunda Swamy, learned
counsel appearing for respondent No.3 to 5 and Sri. B.K.
Mohan, learned counsel appearing for respondent No.1(a to e).
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9. Sri. Ashwin Kumar M.S., learned counsel appearing
for the appellant contended that, the First Appellate Court has
failed to consider the fact that, defendant No.2 has executed
the Will dated 05.07.2007 in favour of the plaintiff bequeathing
the suit schedule property. He also submitted that, defendant
Nos.2 to 5 have executed the Sale Agreement in favour of the
plaintiff on 10.12.2007 and therefore, as the plaintiff has paid
the entire sale consideration of sum of Rs.3,60,000/- to
defendant Nos.2 to 5 and the plaintiff was eager to execute the
registered sale deed in respect of the subject matter of the
property, however, defendant Nos.2 to 5, illegally sold the
property in favour of defendant No.1 and as such, he
contended that, the First Appellate Court had failed to consider
the documents produced by the plaintiff and therefore, sought
for interference of this Court.
10. Sir. Nanjunda Swamy, learned counsel appearing
for respondent Nos.3 to 5 submits that, the property in
question was belonging to defendant Nos.2 to 5 and the same
has been sold in favour of defendant No.1 for valuable
consideration. Accordingly, he sought for dismissal of the
appeal. In addition to this learned counsel appearing for
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respondent Nos.3 to 5 submitted that, the First Appellate Court
ought to have directed the plaintiff to recover the sale
consideration amount from defendant No.1 and as such, sought
for modification of the judgment and decree passed by the First
Appellate Court.
11. In the light of the submission made by the learned
counsel appearing for the parties and on careful examining the
finding recorded by both the Courts below, it is not in dispute
that, the plaintiff has filed suit in O.S. No.1265/2013 seeking
relief of declaration, specific performance of contract with
consequential relief of permanent injunction in respect of the
suit schedule property. Plaintiff is claiming a declaration based
on the Will dated 25.05.2007 said to have been executed by
defendant Nos.2 to 5. However, defendant Nos.2 to 5 have
been arrayed as parties to the suit and therefore, consideration
of the execution of the Will dated 25.05.2007 does not arise.
12. Insofar as the registered Power of Attorney said to
have been executed by defendant No.2 to 5 in favour of the
plaintiff on 05.07.2007 (Ex.P-18), the same cannot be
considered as deed of convenience, for selling the property by
defendant No.2 to 5 in favour of the plaintiff. However, the
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last resort left for the plaintiff, to seek claim in the property is
based on the Sale Agreement dated 05.07.2007 (Ex.P-16). The
trial Court after considering the material on record erroneously
decreed the suit, directing defendant Nos.2 to 5 to execute the
Sale Deed in favour of the plaintiff, despite the fact that,
defendant Nos.2 to 5 have executed a registered sale deed
dated 03.08.2013 in favour of defendant No.1.
13. Therefore, I am of the view that, the finding
recorded by the trial Court is nonest, and cannot be
considered. Insofar as the judgment and decree passed by the
First Appellate Court in R.A.No.55/2020 filed by defendant No.1
is concerned, the First Appellate Court after considering the
material on record has arrived at a conclusion that, defendant
No.1 has proved that, he is bonafide purchaser of the property
for valuable consideration, and on the other hand though the
plaintiff has placed reliance on the Sale of Agreement dated
05.07.2007, the plaintiff ought to have taken step to execute
the Sale Agreement dated 05.07.2007 at earliest point of time
and as the plaintiff has not issued any notice to defendant
Nos.2 to 5, calling upon them to execute the registered sale
deed, the First Appellate Court has rightly decreed the suit in
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R.A. No.55/2020. That apart, the case of the plaintiff is seeking
relief of specific performance, is based on the Sale Agreement
dated 05.07.2007. However, the suit was filed on 07.10.2013
after a period of Five years, Nine months and therefore, as
there are no cogent reasons have been assigned by the plaintiff
with regard to the circumstances of the case that he has made
effort to get the registered the sale deed from defendant Nos.2
to 5, and therefore, I am of the view that, no interference is
called for in respect of judgment and decree passed by the First
Appellate Court in R.A. No.55/2020. In the result, the
plaintiff/appellant has not made out a case for framing the
substantial questions of law as required under Section 100 of
C.P.C. Therefore, the appeal is dismissed at the stage of the
admission itself.
SD/-
(E.S.INDIRESH)
JUDGE
TMP
